11 NICS App. 22, CHEHALIS TRIBE v. FOLEY (April 2013)
IN THE chehalis TRIBAL COURT OF APPEALS
chehalis INDIAN RESERVATION
OAKVILLE, WASHINGTON
Confederated Tribes of the Chehalis Reservation, Plaintiff/Appellant,
v.
Thomas Foley, Defendant/Respondent.
No. CHE-CIT-6/12-176 (April 15, 2013)
SYLLABUS*
Tribal police cited fireworks dealer for two violations of tribe’s fireworks code, and thereupon seized dealer’s fireworks. Trial court, observing that the first-listed violation referenced a non-existent code section, and the second-listed violation referenced a list of possible violations rather than a specific violation, ruled the citation failed to provide dealer adequate notice of any charges and dealer was and therefore denied due process of law. Court of Appeals holds notice must be sufficient to fully inform a party as to the nature of the action so the party can prepare its defense, the citation failed to provide such notice, and the tribe did not introduce extrinsic evidence concerning issuance of the citation that might have cured the defects on the face of the citation. Trial court order dismissing citation and returning property to respondent affirmed.
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Before:
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Robert J. Miller, Chief Judge; Jerry R. Ford, Judge; Gregory M. Silverman, Judge.
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Appearances:
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Robbi M. Kessler and Devon Tiam, Office of Tribal Attorney, for Appellant; James B. Feldman, for Respondent.
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OPINION
Ford, J.:
This is an appeal from an Order on Motion to Dismiss and Motion to Return Property entered by the Chehalis Tribal Court (hereafter the Trial Court) on October 24, 2012. The Trial Court ruled that the Citation for Fireworks Violation and Confiscation of Fireworks issued to the Defendant Thomas Foley (hereafter Respondent) by the Chehalis Tribal Police on behalf of the Chehalis Tribe (hereafter Appellant) violated Respondent’s due process rights, which required dismissal of the citation and the return of all confiscated property to the Respondent. The Appellant filed a timely appeal of the Trial Court’s order. We affirm.
11 NICS App. 22, CHEHALIS TRIBE v. FOLEY (April 2013) p. 23
Standard of Review
This Court is limited by Chehalis Tribal Code to a review of errors of law and procedure as set forth in the record of the Trial Court, errors raised by the Appellant concerning law and procedure in its brief, and the oral arguments presented before this Court. CTC 2.4.3.030. As this court is dealing solely with alleged errors of law and procedure, the standard of review is de novo.
Procedural History
On June 14, 2012, the Chehalis Tribal Police, after undertaking an inspection of three containers of fireworks brought onto the Chehalis Reservation by Respondent, issued a citation (#3576) to the Respondent which the Respondent signed promising his mandatory attendance at a hearing in the Trial Court on July 18, 2012. The citation listed two violations of the Chehalis Fireworks Code: CTC 6.5.1.200(c) Fireworks Violation and CTC 6.5.1.220 Confiscation of Fireworks.1 In addition, Tribal Police seized the three containers which remain in tribal custody to this date.
On July 18, Respondent appeared with Counsel and the case was set over upon the motion of the Respondent for a continuance to August 15, 2012. On that date, Respondent filed the Motion to Dismiss and Return Property which is the crux of this litigation. Oral Argument was held October 17, 2012. On October 24, 2012, the Trial Court granted the Respondent’s Motion and issued its order.
On October 26, 2012, the Appellant filed a Motion to Reconsider Judgment asking the Trial Court to reconsider its decision. On November 8, 2012, the Trial Court entered an Order Denying Motion for Reconsideration. A timely Notice of Appeal was filed by the Appellant on November 20, 2012. This appeal was accepted by the Chief Judge on December 19, 2012. Briefs were filed and oral argument was held on March 19, 2013.
Statement of Errors
On page five (5) of Appellant’s opening brief, the following errors of the Trial Court were stated:
1. The Chehalis Tribal Court’s determination that “The citation issued to the Defendant fails on the basis that it does not provide him sufficient notice as to the alleged violation(s) and therefore violates of [sic] his rights to due process,” … under the Indian Civil Rights Act of 1968 was in error because the court did not lend proper weight to all the circumstances of the issuance of the notice in making that determination.
11 NICS App. 22, CHEHALIS TRIBE v. FOLEY (April 2013) p. 24
2. The Chehalis Tribal Court’s determination that there was no cause to grant reconsideration of its Order on Motion to Dismiss and Motion to Return Property was in error because that court’s original dispositive order occurred before the parties could present factual evidence as required by Chehalis Tribal Code Chapter 6.5.
3. The Chehalis Tribal Court’s order to make arrangements for the safe removal of the Respondent’s property from the Chehalis Reservation was in error because compliance with that order without further instruction from the Court as to the disposition of illegal fireworks inventory is impossible without violation of applicable Chehalis tribal statute and federal regulations.
Due Process
The beginning of any discussion of due process on the Chehalis Reservation must, by necessity, begin with the Indian Civil Rights Act of 1968. 25 U.S.C. § 1302. The United States Congress required tribes to follow due process in the exercise of self-government and prior to the deprivation of liberty and/or property. As stated by the Trial Court, this Court is not bound by the opinions issued in federal, state or other tribal courts, but an examination of other case law may be seen as persuasive in the determination of the issues presented here. See In Re: Custody of B.S., 6 NICS App. 113, 117 (Chehalis Tribal Ct. App. 2003).
At both trial and appellate levels, the Appellant has asserted that a violation of due process can only be determined after a full evidentiary hearing where both sides could fully develop the facts. Appellant asks this court to ignore the obvious errors in the citation given to the Respondent and remand this matter for an evidentiary hearing. It is this court’s ruling that due process attached when the Respondent was cited on June 14, 2012, and the sole issue is whether the citation within its four corners meets even the most basic due process requirements.
The Trial Court in a detailed, reasoned and persuasive discussion of due process set forth the fundamental interest an individual on the Chehalis Reservation has in the possession of his or her liberty and/or property and that the due process afforded an individual must be meaningful.
The United States Supreme Court has held that
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.
Mullane v. Cent. Hanover Bank & Trust Co, 339 U.S. 306, 314-15 (1950) (internal citations omitted).
11 NICS App. 22, CHEHALIS TRIBE v. FOLEY (April 2013) p. 25
Further, this Court has held that
Under the Indian Civil Rights Act, Indian Tribes are prohibited from depriving any person of liberty or property without due process of law. While the meaning of due process under the Indian Civil Rights Act is similar to due process under the United States Constitution, it is different. A Tribal Court’s interpretation and application of due process represents the unique tribal sovereign, its distinctive tradition, culture and mores.
Custody of B.S., supra, at 117.
This Court has held, unsurprisingly, that notice is a requirement of due process under Chehalis Tribal law. Id. The Trial Court cited persuasive authority from both Washington State, State v Grant, 89 Wash.2d 678, 575 P.2d 210 (1978), and the Tulalip Court of Appeals, Gobin v. Tulalip Tribes’ Board of Directors, 6 NICS App. 101 (Tulalip Tribal Ct. App. 1978). These cases, which we find persuasive, hold that notice must be sufficient to fully inform a party as to the nature of the action so the party can prepare its defense.
In the present case, due process requires, inter alia, that in light of all the circumstances, the citation provide the Respondent with notice of the violations with which he is charged. Unfortunately, neither party offered any evidence of the circumstances surrounding the issuance of the citation. Since the record is devoid of any evidence of the circumstances in which the citation was issued, this court cannot consider those circumstances and must base its ruling on the citation itself.2 The citation refers to section 200(c) and section 220 of the Fireworks Ordinance, codified as Chapter 5 in Title 6 of the Tribal Code. The former reference fails to refer to any provision in the Chapter: there is no section 200(c). The second reference refers to a provision that authorizes the Tribe to seize fireworks under several different scenarios; however, the citation itself does not indicate the particular scenario under which the fireworks were seized. Therefore, on its face, the citation does not provide the Respondent with notice of the violations with which he is charged and, a fortiori, fails to satisfy the requirements of due process. For this reason the judgment below must be affirmed.
Our decision upholding the Trial Court’s initial dismissal order makes a ruling on the issue of Appellant’s Motion for Reconsideration unnecessary.
11 NICS App. 22, CHEHALIS TRIBE v. FOLEY (April 2013) p. 26
Return of Property
Since the Trial Court found a failure of the Appellant to provide due process to the Respondent, the Court had no choice but to order the return of his property as there was no continuing basis to prevent his possession once a dismissal of the underlying action was entered. CTC 6.5.1.230, Disposition of Confiscated Fireworks, provides a process for the disposition of validly confiscated fireworks, but does not deal with the situation where the fireworks have not been validly seized. The Respondent desires the return of his property, is entitled to it, and is solely responsible, as any property owner would be, concerning any issues dealing with the return of the property. The Trial Court’s order for the Respondent to coordinate with the Appellant for the removal of the property from the Chehalis Indian Reservation is reasonable and necessary to complete this litigation.
Conclusion
We affirm the Trial Court’s dismissal of this action for the failure of Appellant to provide meaningful due process to the Respondent and the resultant release of Respondent’s property.
