23 NICS App. 1, TTT v. FLORES (January 2025)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP WASHINGTON
The Tulalip Tribes, Appellant
v.
Eric Lee Flores, Appellee.
NO. TUL-CV-AP-2024-0440 (January 7, 2025)
Before: Jane M. Smith, Presiding Justice; Matthew L.M. Fletcher, Associate Justice; John C. Sledd, Associate Justice.
OPINION
Per curiam:
INTRODUCTION
Defendant-Appellee Eric Flores was charged with Criminal Mischief/Domestic Violence under TTC 3.30.030(1) and 4.25.100. When too few potential jurors appeared to empanel a jury, the Tribal Court denied the Tribes’ motions for an extension or continuance and granted Mr. Flores’ motion to dismiss based on violation of the Tribes’ speedy trial statute, TTC 2.25.070. We hold that the court misinterpreted and misapplied the Code and failed to make required factual findings before dismissing. We reverse and remand.
PROCEEDINGS BELOW
Mr. Flores was arraigned on February 21, 2024 and released from custody with a ninety-day speedy trial deadline, expiring on May 21. See TTC 2.25.070. A jury trial was set for May 15, but at a later hearing the court stated that trial on the 15th was impossible because all court clerks would be in training. Over Mr. Flores’ objection, the court ordered a continuance to the next regular date for jury trials, May 29.
On the 29th, only six juror candidates appeared for trial, too few to allow for juror challenges and still seat a jury. Mr. Flores filed a motion to dismiss contending that “speedy trial expired” on May 21 and that he was being denied his rights to a fair and impartial jury under TTC 2.25.070(2)(f) and to a “prompt” or “speedy” trial under Tulalip Constitution, Art. VII, Sec.4., TTC 2.25.070(7), and the Indian Civil Rights Act, 25 USC 1302(a)(6).
The Tribes moved for a delay until the next jury trial date, June 12, or “at the least” until May 30.1 In argument over the Tribes’ motion the parties and the court referred interchangeably to “delaying” or “continuing” trial, but no one cited or mentioned the terms of the continuance provision of the Tribes’ speedy trial statute, TTC 2.25.070(7)(e)(ii). Rather, they focused on the extension provisions, TTC 2.25.070(7)(d), and on the opinion of this Court in Phair v. The Tulalip Tribes, 18 NICS App. 38 (2020), which also dealt with an extension. We conclude that the Tribes were requesting an extension, not a continuance. The statute applicable to that extension request provides as follows:
When a trial is not begun on the date set because of unavoidable or unforeseen circumstances beyond the control of the Court or the parties, the Court, even if the time for trial has expired, may extend the time within which trial must be held in increments of more than five judicial days unless the defendant will be substantially prejudiced in his or her defense. The Court must state on the record or in writing the reasons for the extension.
The Court did not rule on the Tribes’ May 29 motion for an extension. It denied Mr. Flores’ motion to dismiss and ordered an overnight recess.
After overnight emails to potential jurors, nine qualified candidates appeared on May 30 – still not enough. Mr. Flores renewed his motion to dismiss, contending that lack of jurors was an ongoing problem in the Tribal Court and so was not an “unavoidable or unforeseen” circumstance that would permit an extension. The Tribes expressed regret at the delay, but nevertheless moved for an extension to the next jury trial date, June 12.
Ruling from the bench, the court denied the Tribes’ request for an extension, despite finding that the absence of jurors on May 29 and May 30 was unforeseen or unavoidable. It held that the Code allows extensions only in five day increments, and that, because jury summons would not be served within that time, a five day extension would foreseeably result in too few jurors at the next setting, precluding further extension. It stated its intention to dismiss on the basis that “the time for trial has expired.”
The Tribes then moved orally for a continuance under TTC 2.25.070(7)(e), which provides that:
The Court may continue a trial beyond the speedy trial period as follows: …
(ii) On motion of the Tribal Prosecutor, the Court, or a party, the Court may continue the case when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense. The motion must be filed on or before the date set for trial or the last day of any continuance or extension granted pursuant to this rule….
The court denied the motion for continuance from the bench, ruling that the motion was untimely and this provision no longer applied because “we are here for trial already.” The court then retired from the bench.2
A short time after the court retired, the Tribes filed a written motion for a continuance and the court reconvened and reiterated that the Tribe’s motion was untimely, because a continuance could only be requested “within speedy,” and the case was now “outside of speedy.” The court then entered a written order that the “case [is] dismissed as time for trial elapsed on 5/21/24 and jury pool was insufficient to proceed with trial today.”
ISSUES ON APPEAL
The Tribes timely appealed and alleged three reversible errors: first, that the Tribal Court misinterpreted the speedy trial statute as allowing only a single, five judicial day extension and as not allowing continuances after the initial, statutory speedy trial deadline expires; second, that the Tribal Court committed legal error by dismissing with prejudice without a finding of prejudicial governmental misconduct; and, third, that the court abused its discretion in dismissing without a finding that further delay would prejudice Mr. Flores.
Mr. Flores contests each of the assignments of error and further argues that the Tribes’ motion for continuance was untimely under the Code because it was not filed until after the extended speedy trial period had expired and after the court had ruled from the bench and adjourned. Although Mr. Flores made perfunctory reference to the Indian Civil Rights Act and the prompt trial guarantee of the Tribes’ Constitution in his first, unsuccessful motion to dismiss and in his brief here, he has made no substantive arguments based on them, and the Tribal Court relied exclusively upon the Tribal Code in its decisions.3 We therefore also confine our analysis to the Code. See United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015) (en banc) (“Generally, an appellee waives any argument it fails to raise in its answering brief”).
STANDARDS OF REVIEW
The standards of review to be used by this Court are these:
(1) A finding of fact … shall be sustained unless clearly erroneous; …
(4) A conclusion of law shall be reviewed de novo…;
(6) A matter which is a mixture of law and fact is reviewed by the standard applicable to each element;
(8) A matter which is within the discretion of the Tribal Court shall be sustained if it is reflected in the record that the Tribal Court exercised its discretionary authority, applied the appropriate legal standard to the facts, and did not abuse its discretion. A matter committed to the discretion of the Tribal Court shall not be subject to the substituted judgment of the Court of Appeals.
TTC 2.20.090. A court’s determination that involves a legal analysis is reviewed as a conclusion of law. Tribes v. McClellan, 22 NICS App. 13, 15 (Tulalip Ct. App. 2024)
ANALYSIS
We begin by clarifying the nature and terms of the extension and continuance remedies under the Tribal Code. Each does more than just delay trial – a function that can be handled under the general continuance authority in TTC 2.25.130. Extensions and continuances under TTC 2.25.070(7) also provide “extensions of time limits” within which a defendant must be brought to trial. TTC 2.25.070(7) (emphasis added); TTC 2.25.070(7)(d) (“extend the time within which trial must be held”).4 Which time-extending remedy may be invoked depends on the stage of the prosecution. Prior to the date set for trial, only a continuance (or agreement of the parties) may be approved. TTC 2.25.070(7)(e). Once the date set for trial arrives, an extension may be granted if “trial is not begun on the date set,” TTC 2.25.070(7)(d). A continuance under subsection (7)(e)(ii) also remains available until passage of both the trial date and the original or extended or continued speedy trial deadline. Thereafter, only an extension may be granted. Unlike a continuance, extensions are limited to increments of five judicial days, but multiple extensions may be granted, and may be granted in a single order if the court finds that the same unforeseen circumstance will still prevent trial after five days, and if defendant is not prejudiced thereby. Phair, supra, 18 NICS App. at 42.
Denial of Tribes’ Motion for an Extension
In the present case, the Tribal Court found that a lack of jurors and the inability to begin trial would recur after a five day extension, but that the cause would no longer be the initial unforeseen shortage of jurors. Rather, the later inability would be caused by the foreseeable lack of service of jury summons during the five day period. The court concluded that, at that point, TTC 2.25.070(7)(d) would prohibit further extension. The court chose to deny the extension immediately.
We defer to the court’s unchallenged, predictive finding that a venire sufficient for trial could not be obtained over a five day extension. We part company with the Tribal Court, however, in its conclusion that, after such an extension, trial would be unable to begin “because of” that lack of new summons and new jurors. Obviously, the lack of jurors after an extension would be a cause in fact or “but for” cause of the inability to hold trial, but the failure of jurors to appear on May 29 would also be such a cause – but for that initial default, there would be no need for additional summons or new juror candidates. Which of these actual causes matters under the statute, or, in legal lingo, which would have been the “legal cause” of inability to hold trial, is a question of law, “grounded in policy determinations as to how far the consequences of … acts should extend.” E.g., N.L. v. Bethel Sch. Dist., 186 Wash. 2d 422, 437 (2016).
We hold that the legal cause of the predicted inability to try Mr. Flores after a five day extension would have been the initial failure of jurors to respond to summons on May 29. That failure would have set in motion an uninterrupted chain of events precluding trial on the extended date. The lack of new summons would be a contributing cause, but not an independent or superseding one. See Bethel School District, supra (“There may, of course, be more than one proximate cause of an injury, and the concurring [act] … does not necessarily break the causal chain….”). Our holding is consistent with the decision in Phair, which implicitly attributed a forecast continued inability to hold trial to the unforeseeable initial shortage of jurors, and not to the foreseeable shortage of subsequent jury trial days on the court’s calendar. See Phair, 18 NICS App. at 42. To hold otherwise in Mr. Flores’ case would cast blame for delay on the court, although it was ready to proceed on May 29, rather than holding the defaulting members of the jury pool responsible. Allowing the defendant to avoid trial in such circumstances would also inappropriately tip the balance of interests inherent in speedy trial doctrine in favor of the defendant and against the community’s interest in safety and accountability. See id. at 41-42 (balancing test for dismissal on speedy trial grounds).
Because the Tribal Court denied the Tribes’ motion for an extension based on an incorrect understanding of the legal cause for the forecast inability to begin trial, we reverse and remand for the Tribal Court to exercise its discretion regarding a requested extension in light of the above understanding of the applicable law.
Denial of Tribes’ Motion for Continuance
After its requests for extension were denied, the Tribes moved on May 30 for a continuance under TTC 2.25.070(7)(e)(ii).5 Motions for continuance must be made “on or before the date set for trial or the last day of any continuance or extension.” Id. The court denied the Tribes’ motion as untimely, holding that a continuance can only be requested “within speedy,” and the motion was made “outside speedy.” We assume that the noun “speedy” here refers to the latest date on which Defendant could be “brought to trial” – i.e., the latest his trial could begin -- under the Tribes’ speedy trial statute, TTC 2.25.070.
Because Mr. Flores was not in custody, his speedy trial deadline was initially May 21, ninety days after arraignment. See id. On May 6, the court extended the statutory deadline and the trial date to May 29 pursuant to TTC 2.25.070(7)(d). Any motion for a continuance therefore had to be made on or before May 29. The Tribes did not request a continuance until May 30. The Tribes argue that its motion was nevertheless timely because the overnight recess on May 29 “in effect caus[ed] May 30, 2024 to still be a day of trial.” The issue, however, is whether the recess caused May 30 to become “the date set for trial” under subsection 070(7)(d), that is, the singular date on which the trial is to begin. The Tribes cite no authority for that proposition and we are aware of none. The Tribal Court therefore correctly denied that motion for continuance as untimely.6
Grant of Defendant’s Motion to Dismiss
The Tribal Court’s May 30 order of dismissal states as its reason that “time for trial elapsed on May 21, and jury pool was insufficient to proceed with trial today.” The order was correct in finding that the speedy trial deadline had passed, but wrong on the date, which had been previously extended to May 29. More importantly, the order on its face relies solely on the passage of the statutory deadline. The Tribal Code, however, does not mandate dismissal when the deadline has passed, and in fact specifically allows for an extension and proceeding to trial after that deadline, in TTC 2.25.070(7)(d). Our precedents likewise reject any bright line rule requiring or authorizing dismissal solely because the statutory period ends. Phair, 18 NICS App, at 40, 42; see also TTC 4.25.060 (“The Tulalip Tribes does not favor dismissal of domestic violence or family violence charges….”). When the statutory speedy trial period has run, the Tribal Court may exercise its discretion to dismiss, or it may conclude that dismissal is required by the Tribes’ Constitution or the ICRA, but in any case it must first find that the factors favoring dismissal outweigh those favoring continuing to trial. Phair, 18 NICS App. at 42 (“the balancing test of Jones must be used in order to determine whether Appellant’s right to a speedy trial was violated”) (citing Jones v. Tulalip Tribes, 6 NICS App. 187 (Tulalip Ct. App. 2004). The factors relevant to a speedy trial dismissal are “(1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) the prejudice resulting to the defendant from a delay in trial proceedings.” Phair, 18 NICS App. at 41. Lack of prejudice is also a necessary element under the Code provisions for granting an extension or a continuance.
The Tribal Court’s written order of dismissal here contains no findings regarding prejudice to Mr. Flores from continuing to trial, and no findings regarding the other three factors. The audio record also contains no such findings, although both parties mentioned those factors to the Tribal Court in connection with the Tribes’ motions for an extension and for a continuance. The Tribal Court’s failure to apply the applicable law requiring such findings was a legal error, reviewable de novo. We therefore reverse the dismissal of the prosecution and remand for further proceedings consistent with this opinion.
Because we reverse the May 30 order of dismissal on those grounds, we do not need to determine whether the Tribal Court intended to dismiss with prejudice to the refiling of charges, and whether such a dismissal would be an error as the Tribes contend in its third assignment of error.
CONCLUSION
The failure of members of the Tribes’ jury pool to honor valid subpoenae for jury service undermines the Tulalip community’s right to protection from and accountability for criminal conduct and undermines an accused person’s rights to a prompt and fair determination of guilt or innocence. Such a failure here also imposed on the Tribal Court the challenging task of protecting both the community’s and Mr. Flores’ rights within constraints imposed by the court’s calendar and what it believed to be the law. Because the court misconceived some of those legal constraints, we reverse its denial of the Tribes’ motion for an extension and its grant of Mr. Flores motion to dismiss and remand to the sound discretion of the Tribal Court.
The Tribes’ motion was not in writing, but oral motions during hearings are customary and often unavoidable. The Tribal Court “retains inherent authority to entertain and rule on oral motions that cannot be made within statutory time frames.” Tulalip Tribes v. 2008 Ford Econoline Van, 11 NICS App. 39, 40, n.2 (Tulalip 2013).
We do not agree with Mr. Flores’ argument that the Prosecution’s statement on May 30 that “it’s not necessarily the Tribes’ motion to continue” negated its intention to make such a motion. The statement is ambiguous at best and more likely means only that the Court could grant a continuance on its own, with no tribal motion.
Mr. Flores’ May 29 motion to dismiss says only that it is filed “pursuant to” a list of laws, including the ICRA. The operative, May 30 motion to dismiss does not mention the ICRA. Appellee’s Brief merely lists the ICRA, Tribal Code and Tribal Constitution as laws assuring a fair and speedy jury trial, and states that those laws were “rendered enforceable” by the order of dismissal.
The reference in TTC 2.25.070(7)(e) to continuance “beyond speedy trial” therefore should be read as referring to continuing the deadline beyond previously set time limits. Postponing trial without also extending the deadline to bring a defendant to trial would be inconsistent with the statutory language about extending “time limits,” and often would be futile, leaving the case open to dismissal and so frustrating efforts to provide needed additional time to the court or the parties.
This time, the Tribes were explicit that they sought continuance, not extension.
We know of no Tulalip Code or appellate precedent that addresses the precise moment when a defendant is “brought to trial” for speedy trial purposes, and the question was not considered below nor raised by the parties on appeal. Under Washington law, trial begins for speedy trial purposes when the parties and court convene, ready to proceed to trial, and the court rules on a preliminary motion. E.g., State v. Carson, 128 Wash. 2d 805, 819–20, (1996), abrogated on other grounds by State v. Walker, 199 Wash. 2d 796 (2022). We need not, and do not, decide that question here.