5 Mash.Rep. 94, 2008 WL 2746707 (Mash. Pequot Tribal Ct.)
Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT TRIBAL NATION, Plaintiff,
Belinda McKEON, et al., Defendant–Petitioners.
July 9, 2008.
MEMORANDUM OF DECISION
THOMAS J. LONDREGAN, Judge.
I. Facts and Procedural History
This is a declaratory judgment action brought by the Mashantucket Pequot Tribal Nation (“MPTN” or “Tribe”) pursuant to 12 M.P.T.L. ch. 1 § 1(b), as amended by Tribal Council Resolution (“TCR”) TCR122602–01, to determine the validity of a referendum petition (“Petition”) presented by a group of un-sponsored Mashantucket Pequot tribal members (“Petitioners”), under Article VIII, § 1 of the Mashantucket (Western) Pequot Constitution.1
This Court has authority to determine the validity of the Petition by an express grant of jurisdiction from the Mashantucket Pequot Tribal Council (“Tribal Council” or “Council”):
The Tribal Court shall have jurisdiction to hear and decide, through a declaratory judgment action, matters pertaining to the legal sufficiency or validity of a petition presented pursuant to Article VIII Section 1 of the Mashantucket (Western) Pequot Constitution, and sovereign immunity of the Tribe is hereby waived for the limited purposed of such a declaratory judgment action in Tribal court provided such action is commenced within 20 days from the time the Tribal Council does not accept the validity or sufficiency of the petition.
12 M.P.T.L. ch. 1 § 1(b).
Jurisdiction to hear declaratory judgment actions to determine the validity of a petition presented pursuant to Article VIII Section 1 of the Constitution was granted in 2002 by the Mashantucket Pequot Tribal Council via Resolution TCR122602–01. This jurisdictional grant was subsequently codified in the Mashantucket Pequot Tribal Laws, by amendment to 12 M.P.T.L. ch. 1 § 1(b). TCR122602–01 also created a set of “Interim Petition Process and Procedures” (“IPPPs”), which describe the steps by which tribal members may exercise their right of referendum under Article VIII, § 1 of the Constitution. Although the portion of TCR122602–01 that amended 12 M.P.T.L. ch. 1 § 1(b) providing jurisdiction for a declaratory action on a referendum petition was codified and formally published, that portion of TCR122602–01 which outlined the IPPPs was not codified or formally published. Therefore, until now, the IPPPs have not been generally known or available to the tribal members. This point becomes important to the Court’s analysis and will be discussed in further detail, infra.
On or about February 7, 2008, a group of Mashantucket Pequot tribal members began circulating a petition in response to rumors that Tribal Council was planning to eliminate 40 million dollars from the Mashantucket Pequot governmental operating budget. Between February 7, 2008 and March 11, 2008, these petitioners collected signatures, and submitted the Petition to the Tribal Clerk’s Office on March 11, 2008. Upon receiving the Petition, the Tribal Clerk counted the signatures, and verified that a sufficient number of signatures had been obtained to meet the 1/3 requirement of Article VIII, § 1 of the Constitution. The Tribal Clerk then forwarded the Petition on to the Mashantucket Pequot Office of Legal Counsel (“OLC”), for a determination of the legal validity of the Petition. On March 24, 2008 the OLC submitted a memorandum to Tribal Council recommending that Council declare the Petition invalid on procedural and substantive grounds. On May 1, 2008, by way of TCR050108–01 of 01, Tribal Council determined that the Petition had a sufficient degree of irregularities to forward the matter to Tribal Court for a determination of the Petition’s legal status. On May 2, 2008, MPTN initiated a declaratory judgment action in Tribal Court pursuant to 12 M.P.T.L. ch. 1 § 1(b), and the IPPPs. The Court held hearings on May 22, 2008 and on May 29, 2008.2
The Petition is entitled, “Petition for special meeting of membership regarding government reductions,” and its text states in entirety:
The members of the Mashantucket Pequot Tribal Nation petition to mandate our Tribal council to report any and all information related, directly or indirectly, to the current consideration of tribal government reductions, to the entire Mashantucket Pequot Tribal Membership in a mandatory Special Meeting of the membership under Article VIII of the Constitution. The Mashantucket Pequot Tribal Council shall not make a decision as to how the government budget will reduced by the forty million dollars ($40,000,000) until membership has developed a process to determine what programs and services are necessary to remain and still meet the said reduction target. The members of the Mashantucket Pequot Tribal Nation mandate the Mandatory Special Meeting of the Membership shall be held within fourteen (14) days from the submission of this petition. During the above-mentioned, mandatory special meeting, the membership, by way of vote of general membership, shall then decide the process for membership involvement and timeframe for the implementation of the process.
The Tribe maintains that the Petition is defective for noncompliance with the procedural requirements described in the IPPPs, and that the Petition is improperly framed as a subject for referendum. The Petitioners maintain that they should not be held to comply with the IPPPs of which they were unaware and to which they did not have access during the Petition’s creation and circulation, and that the subject matter of the Petition is sufficiently clear to allow a referendum vote.
II. Standard of Review
The sole issue before the Court is whether the Petition is so procedurally and/or substantively defective that it cannot be presented to tribal membership for a referendum vote.
In its analysis of the procedural question, the Court first notes that the Tribe maintains that the Petition is procedurally defective for its noncompliance with the IPPPs.
On the substantive question, the Court must determine if the Petition—as actually drafted by the Petitioners—can constitute a proper subject for referendum under Article VIII, and whether the Court has authority to grant the relief requested by the Petitioners.
The Court is mindful that this case comes in the posture of a declaratory judgment action. The purpose of a declaratory judgment action is to determine the legal rights and obligations between the parties. “In an action seeking a declaratory judgment, the sole function of the trial court is to ascertain the rights of the parties under existing law.” Middlebury v. Steinmann, 189 Conn. 710, 715, 458 A.2d 393 (1983). The Court is not required to give, and will therefore not give, deference to the opinion of either the OLC or the Tribal Council, but will instead decide this case de novo, based on the facts and exhibits presented by the parties.
A. Nature of the Claims
The Court identifies three overlapping strands present in this case. First, the Tribe alleges that the Petition is procedurally defective for its noncompliance with the IPPPs, and should be invalidated on this ground. Second, the Tribe alleges that the Petition—as actually drafted by the Petitioners—cannot constitute a proper subject for a referendum under Article VIII, § 1. Third, the Court observes that the Petition requests multiple forms of relief which may or may not be cognizable under the Mashantucket Constitution.
B. The Powers Present in the Mashantucket (Western) Pequot Constitution
Before beginning its analysis of the Petition’s alleged procedural or substantive defects, the Court finds it helpful to first review the text of the Constitution to determine which powers have and have not been preserved for exercise by the tribal membership.
Traditionally, state and municipal governments have recognized five different kinds of political powers by which an electorate interacts with its representative officials: (1) Initiative; (2) Referendum; (3) Referral; (4) Recall; and (5) Amendment. 42 Am.Jur.2d Initiative and Referendum § 1 et. seq. Initiative generally refers to the power of the people to propose bills and laws, and to enact or reject them at the polls, independent of legislative assembly. BLACK’S LAW DICTIONARY 784 (6th ed.1990). Referendum, on the other hand, is a right constitutionally reserved to the people of a state, or local subdivision thereof, to have submitted for their approval or rejection, under prescribed conditions, any law of part of law passed by a lawmaking body. BLACK’S LAW DICTIONARY 1281 (6th ed.1990). Referral is the ability of a governmental legislative body to seek approval from the people before adopting a particular piece of legislation. 42 Am.Jur.2d Initiative and Referendum § 1 et. seq. Recall is a right or procedure by which a public official may be removed from office before the end of his or her term by a vote of the people to be taken on the filing of a petition signed by a required number of qualified voters. BLACK’S LAW DICTIONARY 1267 (6th ed.1990). Most jurisdictions also provide the people with the power of changing the governing principles for that jurisdiction—most frequently framed in the form of an amendment to the Constitution. 42 Am.Jr.2d Initiative and Referendum, § 1 et. seq.
The Mashantucket (Western) Pequot Constitution reserves to the tribal membership only the powers of referendum, recall, and amendment. It does not, however, provide the people with the power of initiative. It does provide Tribal Council—but not the membership—with the prerogative of Referral.3
Article III of the Mashantucket (Western) Pequot Constitution (“Constitution”), is entitled “Referendum,” and comprises two sections. Section 1 is entitled “Petition” and states in its entirety:
Upon a petition of at least one-third (1/3) of the eligible voters of the Mashantucket (Western) Pequot Tribe, any enacted or proposed law, resolution or other regulative act of the Tribal Council shall be submitted to a referendum of the qualified voters of the Mashantucket (Western) Pequot Tribe.
Article VIII, § 1 of the Mashantucket (Western) Pequot Constitution.
Section 2 is entitled “Resolution” and comprises seven sections which together describe how a valid referendum petition would be presented to the tribal membership.
Affair reading of the Petition leads the Court to conclude that Petitioners are seeking neither a recall nor an amendment to the Constitution in this action. Additionally, the Constitution does not provide tribal membership with the initiative power, and the referral power may be exercised only by Tribal Council. Therefore, the Court need not evaluate the Petition under the principles governing initiative, referral, recall, or amendment mechanisms, and need only address whether the Petition suffices as a proper subject for a referendum.
C. Referendum Power
C1. Procedural Defects
Both the Tribe and the Petitioners treat the Petition as an attempt to exercise the power of referendum under Article VIII, § 1. The Tribe argues that the Petition cannot legally invoke the constitutional power of referendum because it is procedurally defective in a number of ways. First, the Petition fails to identify discrete sponsors, which is a specific requirement of IPPPs § c–1. Second, under IPPPs § c–11, the Petition is defective because it fails to list tribal identification numbers or the date on which signatures were obtained. Lastly, the Petition fails to meet the sponsor attestation requirement of IPPs.
Petitioners respond that the IPPPs are not valid and enforceable against them, because although the Tribal Court jurisdictional portion of TCR122602–01 was codified and formally published, the IPPPs portion of TCR122602–01 was not. Petitioners argue that it is a legal impossibility for them to comply with a set of procedures when they were not even aware that those procedures existed. For instance, tribal members maintain that there is no such thing as a “tribal member identification number” and that the Tribe does not regularly use such a system in the provision of government services or in other aspects of community participation.
The Tribe has admitted that the requisite number of signatures was obtained, and that the Petition was properly submitted to the Tribal Clerk for verification. The Tribe is merely challenging the technical requirements of the Petition with respect to how the signatures were recorded.
When evaluating the legal sufficiency of a referendum petition on grounds of alleged procedural defect, some courts have applied a liberal standard of review, recognizing that petitions are prepared by non-professionals and “should be favorably considered to promote, and not defeat, the end aimed at.” See Lyon v. Rice, 41 Conn. 245, 248 (1874). Other jurisdictions have required strict compliance with procedural requirements for a referendum petition. See Am.Jur.2d Initiative and Referendum § 16, citing De Szendeffy v. Threadgill, 178 Ariz. 464, 874 P.2d 1021 (Ct.App. Div. 1, 1994), rev. den’d 180 Ariz. 154, 882 P.2d 1280 (1994).
In this case, the IPPPs provide a framework for an orderly referendum process. In its review of TCR122602–01, which promulgated the IPPPs, the Court discerns several familiar principles. For example, the sponsorship requirement is designed to test the integrity of a petition, and facilitates the provision of legal notice if the petition is contested. The IPPPs also have an attestation requirement to provide an additional measure of accountability for the integrity of the signatures collected.
Although it is clear that many of the technical requirements of the IPPPs were not met by the Petition presented in this case, the Court will not invalidate the Petition on procedural grounds alone. It is clear from the testimony of the parties at two separate hearings that Petitioners did not possess the IPPPs at the time they were drafting and circulating the Petition. Petitioners made a good faith effort to satisfy the procedural goals that the IPPPs were promulgated to effect, without benefit of having the IPPPs to use for guidance. The Court cannot and will not require a party to comply with procedural requirements of which it has no fair knowledge. The Petition cannot be invalidated on the procedural basis that it does not comply with the IPPPs.
C2. Substantive Defects
The Tribe next argues that the Petition is insufficient and invalid because it does not form a proper subject matter for a referendum. Specifically, the Petition does not reference “any enacted or proposed law, resolution or other regulative act of the Tribal Council,” as required by Article VIII, § 1 of the Constitution. The Tribe maintains that at the time the Petition was circulated and presented to Tribal council, there were no specific proposals or resolutions pending and that Council was simply engaged in policy discussions about the need for budget reductions.
Furthermore, the Tribe argues that a referendum petition must “be in a form which can be reasonably capable of being understood and placed on [a] ballot,” and suggests that because the Petition combines two or more thoughts or forms of relief, it is incapable of being presented in a question calling for a single “yes or no” answer on a ballot, and is therefore legally insufficient on a substantive basis.
At oral argument on the Petition, Petitioners summarized the substance of the relief requested in the Petition follows:
1. That the Tribal Council report any and all information related to the current consideration of tribal government reductions;
2. That Tribal membership get access to all financials, including the fiscal 2008 government and departmental budgets;
3. That the requested information be reported to the Mashantucket Pequot membership in a special meeting to be called by Tribal Council to give the membership this information;
4. That the Tribal Council be enjoined from making a decision as to how the governmental budget would be reduced until the membership had an opportunity to participate in the decision-making process;
5. That the membership be included in the decision-making process;
6. That a special meeting of membership be held to determine how membership can work with Council to create a process that can be followed to ensure a fair and equitable process, and timeframe for implementing any cuts to the municipal budget.
A “referendum” is typically the power of the people to accept or reject at the poll any legislation that has been adopted. 42 Am.Jur.2d Initiatives and Referendum § 1. In Mashantucket, the Constitution has expanded the target of referendum power to include “any enacted or proposed law, resolution or other regulative act of the Tribal Council.” Article VIII, § 1 of Constitution (emphasis added). The right of referendum therefore is not limited just to legislation that has already been adopted. Rather, proposed legislation, resolutions, or any regulative act may also be petitioned to referendum in the Mashantucket system.
The Petition does not request the repeal of any specifically enacted or proposed statute, law, or regulative act of the Council. When the petition was being circulated and filed, Council had not yet even begun to take specific action; on the contrary, Council was still considering what—if any—specific action to take. Apparently, a goal of 40 million dollars was discussed as a budget reduction target, but no discrete proposal had yet been made to identify specific programs or services that would be cut. The Court must therefore decide whether Petitioners’ requests for relief can be properly categorized as “proposed legislation, resolutions, or any regulative act” under Article VIII, § 1.
Additionally, the Court must be concerned about judicial intrusion into the political process. See Cheshire Taxpayers’ Action Committee, Inc. v. Guilford, 193 Conn. 1, 6, 474 A.2d 97 (1984). The Petitioners are asking for reports, for access to financial information, and for a chance to participate in the decision-making process. Petitioners also seek to enjoin Tribal Council from making decisions. This case demonstrates the strained relationship that develops between the power of the people to legislate directly through the process of referendum and the mandate requiring elected officials to discharge their duties in accordance with law. Petitioners seek to advise the Council and to participate in the decision-making process; at the same time, Tribal Council, elected by the voters of the Tribe, seeks to perform its duties which include the adoption or modification of a governmental budget. A referendum question, by definition, must state the specific subject of the proposed action and ask the voters to be “for the statute, regulation or regulative act” or “against the statute, regulation or regulative act.” Since, at the time the Petition was circulated, Council had not yet enacted a specific proposal, the Court cannot fashion the required form of referendum question from the relief Petitioners request.4
**7 Even if Council had promulgated a discrete proposal or resolution, preparing a budget for a government directly implicates the primary function and authority of a legislative body, such as the Tribal Council. The formulation of the budgetary process is best left to Tribal Council. It is not the province of this court to determine what information, reports, or participation, if any, the Petitioners should have in the formulation of a budget. The electorate’s satisfaction with the Tribal Council in matters such as disclosure of reports and information and listening to the Tribal voters is best left to the ballot box and not the courtroom. See for example, Citizens for a Responsible Government v. Easton, 04–CBR–0126, 2004 WL 772528 (2004), where plaintiff Citizens’ request for an injunction to stop the construction of an elementary school because the information and financial data provided by the town was incomplete, not accurate, and failed to provide the citizens with sufficient information, was denied because there was no case law that required a certain degree of information to be provided to the voters. The Court can find no authority to place on a ballot the request made by the Petitioners in the Petition which is before this Court.5
Once the Council identifies proposed cuts in the budget and a petition is drafted that clearly states what specific services are to be eliminated, then a question, such as, “Shall the [proposed] decision of the Council to eliminate XYZ services from the government’s budget be rescinded [or repealed],” can be submitted to referendum before the voting membership of the Tribe.
For the above stated reasons, this Court exercises its declaratory judgment power and finds that the Petition is not the proper subject matter for a referendum under the Mashantucket (Western) Pequot Constitution.
Therefore, the Court finds that Tribal Council need not submit this Petition to a referendum of the qualified voters of the Mashantucket (Western) Pequot Tribe.All Citations
5 Mash.Rep. 94, 2008 WL 2746707
The most current official version of the Constitution is dated November 7, 2004, and this is the version which governs this action.
Although the IPPPs had not been formally codified or published and tribal members did not employ the IPPPs during the creation and circulation of the Petition, it appears that the Tribal Clerk, OLC, and Tribal Council were aware of and did invoke the IPPPs after the Petition was filed with the Clerk’s Office. Both OLC and Tribal Council evaluated the legal validity of the Petition according to its compliance with the requirements set forth in the IPPPs. Furthermore, in compliance with IPPPs § C(5) and 12 M.P.T.L. ch. 1(b), the Tribe initiated this declaratory judgment action in Tribal Court on May 2, 2008, which was within the required 20 days from the time that Council did not accept the validity or sufficiency of the petition. Furthermore, in order to correct the Petition’s failure to designate particular persons as sponsors of the Petition, the Court sua sponte gave notice by mail to all signatories of the Petition, to Jackson T. King, attorney for the Mashantucket Pequot Tribal Nation, and to Tribal Council. Notice was also published in the Drum Beat, a weekly tribal newsletter, and distributed to the Tribe’s email list in an electronic format.
See Mashantucket (Western) Pequot Constitution Article VIII, § 1—Referendum; Article VIII, § 2 Referral; Article VII, § 3—Recall; and Article XI—Amendments. Additionally, Article IX governs Meetings, and allows Tribal Council, but not tribal membership, to initiate a “Special Meeting” for a variety of purposes, and Article X deals with Powers of the Tribal Council generally.
Furthermore, even if Council had implemented a particular proposal or resolution that had been discretely identified by the Petition, the Court might still have to address the question of whether the proposal or resolution would be categorized as a legislative, executive, or administrative action. Generally, the power of referendum does not extend to acts that are purely administrative in nature, and some jurisdictions specifically do not permit the power of referendum to be exercised in response to appropriation decisions made by the executive branch of government or one of its administrative agencies. 42 Am.Jur.2d Initiative and Referendum § 6–§ 14 et. seq. Since the Court here has decided that the form of the Petition did not precisely address a particular proposal or resolution and that, in fact, no discrete proposal or resolution had been promulgated when the Petition was being created, the Court does not need to reach the classification question here, and saves this analysis for another day.
Furthermore, the Petitioners themselves appear to agree with the general goal of trimming forty million dollars from the government’s budget. The Petition’s request to be part of the process to determine which programs and services should or should not remain “and still meet the said reduction target” indicates that Petitioners were in agreement that the reduction of forty million dollars was an appropriate budgetary target.