--- Am. Tribal Law ----, 2018 WL 3462459 (Colville C.A.)
Colville Tribal Court of Appeals.
Richard GABRIEL, Appellant,
COLVILLE BUSINESS COUNCIL, Appellee.
Case No. AP18-003
7 CTCR 23
14 CCAR 05
Decided June 27, 2018
Trial Case No. CV-OC-2017-40110]
Attorneys and Law Firms
[Jonnie Bray, Spokesperson, for Appellant.
Jason D’Avignon and Carmel McCurdy, Office of Reservation Attorney, for Appellee.
Appellant Gabriel was expelled from his position as a member of the Colville Business Council (CBC) on June 15, 2017. The expulsion was by vote of the CBC pursuant to Colville Constitution Article IV, Sec. 2 and Tribal Code (CTC) Chapter 1-8-20 which governs the behavior of members of the CBC.
After an Ethics Complaint was filed against Appellant the CBC issued a bill of particulars which contained several allegations of violation by Appellant of specific provisions of CTC Chapter 1-8-20. These particulars basically involved financial and contractual relations between Appellant and the Colville Tribes and his actions regarding these relations while an elected member of the CBC. After receiving the Complaint the Rules Committee of the CBC began an investigation pursuant to the requirements of CTC, Chapter 1-8 the Council’s Code of Professional Responsibility. When the initial investigation, conducted in part by an outside attorney, was complete, the Rules Committee scheduled a hearing and provided Appellant with Notice, including a copy of the Complaint against him, the investigation report, a list of expected witnesses, an overview of the hearing procedure, and a statement of his right to call witnesses and defend himself against the charges. These actions by the Rules Committee are prescribed by the Colville Constitution and the Council’s Code of Professional responsibilities, especially CTC 1-8-30(c).
The hearing was held on May 18, 2017. Appellant appeared and contested the charges. Following the hearing, the Rules Committee voted unanimously to recommend to the CBC to expel him and on June 15, 2017, the CBC by majority voted to expel him.
On June 23, 2017, Appellant filed a Complaint in the Tribal Court alleging that his due process rights were violated, asking for money damages, and a finding that CTC 1-8-3(e) prohibiting expelled Council members permanently from running for Council positions is in violation of the Colville Constitution.
During the time that the investigation, hearing, and votes by the Rules Committee and CBC took place, Appellant was, or was about to become, a candidate for election to the position on the CBC that he occupied and from which he was expelled. The election for CBC positions took place shortly after he was expelled and he was unsuccessful in retaining his seat on the CBC.
The Amended Complaint filed by Appellant in the Tribal Court set out the following objections to the process utilized by the CBC Rules Committee and the CBC to review and determine the allegations of violation of CTC 1-8-20 which were made regarding Appellant’s actions while a member of the CBC:
1. No “notice” was given to Appellant of the standard proof to be used by the CBC in reviewing Appellant’s behavior as a member of the CBC.
2. Evidence outside of that produced at hearing was considered in deciding whether Appellant had violated CTC 1-8-20.
3. Hearsay evidence was relied upon by the CBC in deciding whether Appellant violated CTC 1-8-20, thereby denying Appellant the opportunity to confront witnesses.
4. The legal advisor to the CBC in its deliberations regarding Appellant’s behavior was a “potential” witness in the hearing involved in this case.
5. The CBC members who complained regarding the behavior of Appellant met in “private” with members of the committee investigating the complaint and excluded other CBC members from these meetings.
6. The investigating CBC committee did not rule on objections “raised” by Appellant.
7. Appellant was not provided with a statement of findings of fact based on evidence “presented” at the CBC hearing. Rather the reviewing committee provided a conclusory statement without facts recommending Appellant’s expulsion from the CBC.
8. Appellant received no notice of witnesses to be questioned at the CBC hearing.
9. The complaining witness was allowed to participate in the hearing.
10. The vote to expel Appellant took place only nine days prior to the general election for the members of the CBC, an election in which Appellant was a candidate and appeared on the ballot.
11. The CBC did not provide a public statement as to the factual basis for its action in expelling Appellant.
12. The CBC, prior to the election dates, informed the public that under the Colville Code, Appellant was not allowed to run for the CBC position.
13. Appellant was obstructed by tribal staff from removing his belongings from his CBC office.
14. The CTC provision prohibiting an expelled member of the CBC from running again for the CBC does not comport with the tribal constitution.
Seeking injunctive relief, Appellant reasserted all 14 allegations set out above and asserted that Appellant had been defamed by statements quoted in the Colville Tribal Tribune. As relief, Appellant petitioned the Trial Court for a declaratory judgment holding that his expulsion was improper as unconstitutional and violated his procedural due process rights and used the wrong legal standard. Appellant also requested a declaratory judgment to find Appellant eligible to run for office in future CBC elections. Appellant characterized the actions of the CBC regarding his expulsion as reckless, negligent, and retaliatory causing him pain, humiliation and emotional distress and requested various forms of damages, costs, and attorney fees. Appellant asserted that CTC Chapter 1-1-431 (10), Chapter 2 et al, and Chapter 1-5 et al, and, pursuant to CTC 1-5-8, various insurance policies held by the Tribes provided various bases for Court jurisdiction.
In response to Appellant’s Complaint the Appellee Colville Business Council (CBC) filed in the Tribal Court a motion to dismiss. The CBC presented the following defenses:
1. The sovereign immunity of the Tribes and the CBC.
2. The lack of claim for which relief can be granted.
3. The complaint raised political questions that are beyond the authority of the Courts.
4. For the Courts to entertain the matters asserted in the complaint offends, in the specific circumstances of this dispute, the doctrine of separation of governmental powers which is now a part of the constitutional structure of the Colville government.
The Trial Court dismissed the action on the ground that sovereign immunity prevented the CBC, in the specific circumstances of this expulsion of one of its own members, from being sued. We find that oral argument would not aid the Court in determining this Appeal.
PROCEEDINGS IN THE COURT OF APPEALS
At the initial hearing, the Court of Appeals, being concerned that the various defenses asserted in the Tribal Court by Appellee could prevent the claims of Appellant from being considered by the Courts, directed the parties to provide further briefing on the justiciability of Appellant’s claims. After the completion of all requested briefing we affirm the dismissal of the Appellant’s action, but on a ground different from that relied upon by the Tribal Court.
In the requested additional briefing, Appellee continued to argue extensively that in this matter the CBC was protected by sovereign immunity and that the waivers of immunity contained in the Colville Civil Rights Act, CTC 1-5-1 to 1-5-8, did not, for several reasons, apply to the claims asserted by Appellant in the Amended Complaint. In footnote number 18 to its brief, the Appellee continued to raise the defense that Appellant’s Complaint should not proceed because the claims raise a “political question.”
In the “reply Brief” of Appellant, arguments regarding the general scope of Colville Tribal sovereign immunity and waivers contained in the Colville Civil Rights were presented.
STANDARD OF REVIEW
In this Appeal we are not asked to review the factual basis for the expulsion of Appellant from his seat on the CBC, but rather whether his law suit may go forward in the Tribal Court after being dismissed in total by that Court on the ground that the CBC is protected by sovereign immunity. This is an issue of law. Issues of law are reviewed de novo. Confederated Tribes v Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995); Pouley v Colville Tribes, 4 CCAR 38, 2 CTCR 39, 25 ILR 6024 (1997).
SEPARATION OF POWERS
In CCT v Meusy, 10 CCAR62, 5 CTCR 39 (Colville Ct. App. 2011) the Court found that an amendment to the Tribes’ Constitution and Bylaws (Amendment X, 1991), now Article VIII of the Constitution, by specifically establishing the tribal judiciary as an independent branch of Colville government, revised the structure of tribal government from one in which all governmental authority, executive, legislative, and judicial, resided in the Colville Business Council, to one in which issues like those presented by this appeal must be considered in light of that doctrine of separation of powers. In Meusy, the Court found that separation of powers now is rooted not only in written law, Amendment X, establishing Article XIII of the Constitution, but in the customs and traditions of the various peoples who make up the Colville confederacy.
In a more recent decision, Swan v Colville Business Council, 11 CCAR83, 6 CTCR 20 (Colville Ct. App. 2014), the Court, citing Meusy, again relied on the separation of powers doctrine, and its roots in the culture and traditions of the Tribes, to find that the Courts were not empowered to review the actions of a co-equal branch of government, the Colville Business Council, when it acts in duly convened session, to decide how tribal assets are to be utilized.
CONSITUTION AND LAW
Therefore, we must consider in the specific circumstances of this Appeal, wherein the actions of the Colville Business Council in expelling one of its own members are called into question, whether the Colville judiciary has a role in reviewing the actions of its sister branch of government. To do so we must first look to the Constitution and laws of the Tribes to determine whether such a judicial review is permissible.
The section of the Constitution establishing the Judiciary, Article XIII, makes no reference to removal of a duly elected member of the Colville Business Council. Section 1 of that Article does impose a duty on the Courts to “interpret and enforce the laws of the... Tribes... as adopted by the governing body of the Tribes.” However, several other provisions of the Constitution do specifically deal with removal or discipline of members of the Colville Business Council.
Council Sole Judge of Members: The Business Council of the Confederated Tribes of the Colville Reservation shall be the sole judge of the qualifications of its members.” Article II, Sec. 7.
Regulations to Fill Vacated Position: If a councilman... shall... be removed... from office... the Business Council shall declare the position vacant and appoint a member from the district affected to fill the unexpired term.” Article IV, Sec. 1.
“Expulsion of Councilman: The Business Council may by majority vote expel any member for neglect of duty or gross misconduct. Before any vote for expulsion is taken in the matter, such member... shall be given a written statement of the charges against him at least five (5) days before the meeting of the Business Council before which he is to appear, and he shall be given an opportunity to answer any and all charges at the designated Council meeting. The decisions of the Business Council shall be final.” Article IV, Sec. 2.
To carry out its constitutional responsibilities under Article IV, Sec. 2, to review and resolve allegations regarding misfeasance or malfeasance committed by members of the Colville Business Council, Chapter 1-8 of the Colville Tribal Law and Order Code was adopted. CTC 1-8-2. This Chapter, entitled “Council’s Code of Professional Responsibility” includes CTC 1-8-1 through 1-8-36 and includes “Conduct of Discussion and Debate in Committee and Full Sessions.” Resolution 1987-176 (April 19, 1987).
These provisions include comprehensive definitions, CTC 1-8-3; creation of a special committee of the Colville Business Council (Rules) to review the behavior of members of the Council, CTC 1-8-5; granting powers to the Rules Committee to review and investigate the behavior of members of the Council, CTC 1-8-8(a) through (i); setting standards for behavior of members of the Council, CTC 1-8-20(a) through (e); setting rules for filing complaints and conducting hearings regarding such complaints against members of the Council, CTC 1-8-30(a) through (m); setting a process for conducting Colville Business Council meetings and votes regarding the expulsion of a member from the Council, CTC 1-8-33. In addition, the special section governing debate in Council sessions includes sections 2(d) and (e), which provide for expulsion of Council members pursuant to provisions 1-8-20(d)(2) and Article II, Sec. 7, of the Constitution.
These comprehensive provisions, which all predate the adoption of Amendment X establishing the Colville judiciary as a separate branch of tribal government, rely solely on actions and internal agencies of the Colville Business Council to deal with the behavior and discipline, including expulsion, of members of the Council. It is notable that only one very limited section of this process provides any authority to the Colville courts. CTC 18-30(i). (At the request of the Rules Committee of the CBC, the Courts may enforce a CBC subpoena by contempt.)
In exercising its constitutional authority to “determine the scope of the jurisdiction” of the Courts, Article VIII, Sec. 1, the Colville Business Council, has restrained the Courts from ordering the Colville Business Council to make personnel decisions other than those permitted under the applicable personnel policy. CTC 1-2-106(b).
In reviewing the language of the Constitution of the Tribes, the relevant precedent in Colville Tribal law, and the relevant provisions of the Colville Tribal Code, we find that, under the specific facts and circumstances of this action by the CBC to investigate and determine alleged ethical lapses by one of its members, jurisdiction lies exclusively within the constitutional and statutory powers and authority of the CBC itself. Where the language of the Constitution provides for the CBC to be the sole judge of the qualifications of its own members, sets out a process for the CBC itself to hear and decide questions involving the behavior of its own members, and states that decisions of the CBC in such matters shall be final, it is important for the Courts to respect the separation of governmental powers that the Constitution, through the provisions of Amendment X, now provides.
Appellant complained regarding the effect of his expulsion from the Colville Business Council on his future eligibility to become a candidate for the Council under CTC 1-8-3(e). Appellant was, at that time of filing the complaint, not attempting to become a candidate for a future Council position. As a result, issues raised regarding the effect of CTC 1-8-3(e) are not ripe for review by the Courts.
The dismissal by the Tribal Court of this action is affirmed upon the grounds set out in this Opinion.
--- Am. Tribal Law ----, 2018 WL 3462459