10 NICS App. 1, HOOPA VALLEY TRIBAL COUNCIL v. MARSHALL (January 2011)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
Hoopa Valley Tribal Council, Plaintiff and Appellee,
v.
Clifford Lyle Marshall, Defendant and Appellant.
No. C-10-002/A-10-001 (January 21, 2011)
SYLLABUS*
Tribal Council brought suit against former Tribal Chairman seeking recovery of funds budgeted by Council for Chairman’s severance pay that Chairman caused to be issued to himself after losing reelection but prior to leaving office. Trial court denied, in part, Chairman’s motion to dismiss based on lack of subject matter jurisdiction and sovereign immunity, and Chairman appealed. Court of Appeals holds (1) a denial of a motion to dismiss based on sovereign immunity is an appealable order; and (2) sovereign immunity provisions of the tribal code do not divest the trial court of subject matter jurisdiction where a suit is brought by the Tribe itself alleging a Tribal employee or official acted outside the scope of his/her authority. Trial court order affirmed and case remanded.
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Eric Nielsen, Chief Judge; Lisa E. Brodoff, Judge; Suzanne Ojibway Townsend, Judge. |
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Clifford Lyle Marshall, pro se; Thomas C. Petersen, Attorney at Law, for the Hoopa Valley Tribal Council. |
OPINION
Per curiam:
I. Factual and Procedural History
This is an interlocutory appeal from a denial of defendant’s motion to dismiss. Briefs were filed, and oral argument heard on November 24, 2010.
10 NICS App. 1, HOOPA VALLEY TRIBAL COUNCIL v. MARSHALL (January 2011) p. 2
On February 12, 2010, the Hoopa Valley Tribal Council (Tribe) filed a complaint against the defendant, the former Chairman of the Tribal Council, Clifford Marshall. The complaint alleges the day after defendant was defeated for reelection, but while still Chairman, he made a payment to himself of $28,584.88 of tribal funds by a check he prepared and signed. The complaint specifically alleges that this payment was made: (I) without the required Tribal Council approvals; (II) in violation of the Tribes’ conflict of interest laws and the Chairman’s oath of office; (III) in violation of the of defendant’s duties as Chairman; (IV) by unlawful misrepresentation; (V) in violation of the Tribe’s Budget Ordinance; and (VI) contrary to tribal law prohibiting excessive compensation. The defendant contends he is entitled to the money as severance pay.
The defendant moved to dismiss for lack of subject matter jurisdiction. He argued that because he was the Tribal Chairman at the time he issued the check to himself he is immune from suit under HVTC 1 § 1.1.04(e). Specifically, defendant argued that provision grants him sovereign immunity from suit for acts he committed while Chairman. On April 16, 2010, the trial court denied defendant’s motion to dismiss Counts I and V and granted his motion as to Counts II, III, IV, and VI.1
On May 12, 2010, the defendant timely filed an interlocutory Notice of Appeal to this Court. Although the Hoopa Valley Tribal Rules of Appellate Procedures do not expressly provide for interlocutory appeals, courts commonly review interlocutory appeals of denials of motions to dismiss on sovereign immunity grounds. See Atteberry v. Nocama General Hospital, 430 F. 3d 254, 251-252, (5th Cir. 2005); see also, Behens v. Pelletier, 516 U.S. 299, 311, 105 S. Ct. 834 (1996). The defense of immunity is based on the sovereign’s entitlement to avoid trial and its litigation costs, not just a defense to liability on the merits. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 146 (1993) (11th Amendment immunity); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Velasquez v. Senko, 813 F.2d 1509 (9th Cir. 1987) (absolute and qualified immunity); Rush-Presbyterian-St. Luke’s Medical Center v. Hellenic Republic, 877 F.2d. 574, 576 n.2 (7th Cir. 1989) (foreign immunity). The appellate court’s authority to entertain an interlocutory appeal from a denial of a motion to dismiss on grounds of sovereign immunity is therefore too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. Behens, 516 U.S. at 305. Since the privilege of immunity would be lost if a case went to trial where there is immunity from suit, we hold that the denial of the motion to dismiss on grounds of sovereign immunity is an interlocutory order subject to appeal. See Cooper v. Hoopa Tribal Council, No. C-03-065/AA-06-001/A-07-001, Order Accepting Appeal and Setting Schedule (Hoopa Valley Tribal Ct. App. August 1, 2007) (unpublished) (trial court’s rejection of sovereign immunity defense akin to a final judgment on a dispositive motion and therefore immediately appealable).
10 NICS App. 1, HOOPA VALLEY TRIBAL COUNCIL v. MARSHALL (January 2011) p. 3
We accepted this interlocutory appeal to determine the narrow legal issue of whether, under HVTC 1 § 1.1.04(e), the trial court erred as a matter of law when it denied defendant’s motion to dismiss Counts I and V of the complaint on the grounds the allegations in those counts are barred by sovereign immunity.
II. Standard of Review
As this is a matter of legal interpretation, and no factual allegations are before us, our review is de novo. HVTC 2.6.18. See Ferris v. Hoopa Valley Tribe, 8 NICS App. 1, 2 (Hoopa Valley Tribal Ct. App. 2007) (standard of review).
III. Discussion
Generally, a tribe’s sovereign immunity only extends to individual tribal officials and employees while acting within their scope of authority. Hoopa Valley Housing v. Davis and Sherman, 7 NICS App. 34, 36 (Hoopa Valley Tribal Ct. App. 2005) (citing, Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479 (9th Cir. 1985); United States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987)). “The legal rationale in support of conferring immunity on a tribal official is that the official must be able to exercise his or her duties free from intimidation, harassment and the threat of lawsuits for performing those acts of the tribal government that are within the scope of the official’s duties.” Id. at 37 (citing Satiacum v. Sterud, 10 ILR 6013, 6016 (Puy. Tr. Ct., Apr. 23, 1982)). In other words, tribal officials, officers, employees and agents are immune from suit only when acting in their representative capacity on behalf of a tribe, a tribal agency or arm of tribal government. Romanella v. Hayward, 933 F. Supp. 163, 167 (D. Conn. 1996), aff'd on other grounds, 114 F.3d 15 (2d Cir. 1997); Basset v. Mashantucket Pequot Museum and Research Center, Inc., 221 F. Supp. 2d 271, 280 (D. Conn. 2002). However, “(w)hen an official commits an act prohibited by law, he acts beyond his authority and is not protected by sovereign immunity. After all, it is only common sense to conclude that States do not authorize their officers to violate their legal duties.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 138, 104 S. Ct. 900, 928, 79 L. Ed. 2d 67 (1984).
The Tribe alleges defendant’s issuance of the check to himself was outside the scope of his authority under Tribal law because it violated the Tribe’s Budget Ordinance, Title 19, and was not authorized by the Tribal Council. On the other hand, the defendant claims that any actions he took while Chairman, regardless of whether he was acting within his scope of authority, are protected from suit under HVTC 1 § 1.1.04(e)2 by virtue of his position as Chairman.
10 NICS App. 1, HOOPA VALLEY TRIBAL COUNCIL v. MARSHALL (January 2011) p. 4
We reject defendant’s contention that the nature of his authority is irrelevant to the issue of whether this suit is barred under HVTC 1 § 1.1.04(e) or the doctrine of sovereign immunity. It would be absurd and defy common sense to interpret HVTC 1 § 1.1.04(e) to confer the Tribe’s sovereign immunity on its officials and employees for acts outside the scope of their authority where a suit is brought by the Tribe alleging those acts violated the Tribe’s own laws. We find that was not the intent of the Tribe’s legislative body in enacting HVTC 1 § 1.1.04(e). See Suquamish Tribe v. Lah-Huh-Bate-Soot, 4 NICS App. 32, 56 (Suquamish Tribal Ct. App. 1995) (strained or absurd consequences from a literal reading of a statute are avoided) (citations omitted). Moreover, there is nothing in the plain language of HVTC 1 § 1.1.04(e) that purports to confer the Tribe’s sovereign immunity on a Tribe’s official or employee where the Tribe brings a suit against that employee or official alleging a violation of tribal law. See Ferris v. Hoopa Valley Tribe, 8 NICS App. 1, 6 (Hoopa Valley Tribal Ct. App. 2007) (the starting point for interpreting a code provision is its plain language). We hold HVTC 1 § 1.1.04(e) does not divest the trial court of subject matter jurisdiction on the grounds of sovereign immunity as a matter of law where a suit is brought by the Tribe itself alleging a tribal employee or official took tribal funds and that taking was an act outside the scope of his/her authority.
Here, the Tribe sues defendant in his personal capacity,3 contending he acted outside his authority as the Tribal Chairman when he issued himself the check. Whether the defendant had authority as Chairman to issue himself the check is a mixed question of fact and law. See e.g., Ward v. Gordon, 999 F.2d 1399, 1401 (9th Cir.1993) (noting in a Federal Tort Claims Act case that, “[w]hether [defendant] acted within the scope of his employment is a mixed question of law and fact”). That question was not litigated or decided by the trial court because the defendant moved to dismiss arguing he was Chairman when he issued the check, therefore, as a matter of law, he is immune from suit under HVTC 1 § 1.1.04(e), regardless of whether his actions were within his scope of authority. Because we find HVTC 1 § 1.1.04(e) did not divest the trial court of subject matter jurisdiction unless the defendant acted within the scope of his authority, we affirm the trial court’s decision denying the motion to dismiss Counts I and V on the grounds raised by the defendant.
10 NICS App. 1, HOOPA VALLEY TRIBAL COUNCIL v. MARSHALL (January 2011) p. 5
IV. Conclusion
We affirm the trial court’s ruling denying defendant’s motion to dismiss Counts I and V and remand for further proceedings.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
Whether the trial court erroneously granted the motion to dismiss Counts II, III, IV and VI, is not before us.
That provision reads: The Court shall have no jurisdiction over any suit brought against the Hoopa Valley Tribe, its officials, its entities or employees for money judgments without the consent of the Tribe. Nothing contained within this code, or other Tribal ordinance, resolution, policy or otherwise shall be deemed to constitute a waiver or renunciation of the sovereign immunity of the Tribe to suit. Such consent or waiver must be expressly made by the Hoopa Valley Tribal Council by majority vote through passage of an ordinance, by resolution or by entering into a written contract, which provides for an express waiver, or other means adopted by the Hoopa Valley Tribal council. Unless specifically stated in a valid waiver of sovereign immunity described under this section, the Hoopa Valley Tribe does not waive its sovereign immunity with respect to any monetary damages, or monetary sanctions including any awards of costs or attorney’s fees against the Tribe.
See Kentucky v. Graham, 473 US 159 (1985) for a general discussion about how to determine whether a suit is brought against a person in his/her individual capacity or in a governmental capacity.