13 NICS App. 28, IN RE A.A.F. (July 2015)
IN THE PORT GAMBLE S’KLALLAM TRIBAL COURT OF APPEALS
PORT GAMBLE S’KLALLAM INDIAN RESERVATION
KINGSTON, WA
In Re A.A.F., an Indian minor.
Laurie Wood, Petitioner,
and
Jeremy Fulton, Respondent.
NO. POR-J-02/09-034 (July 6, 2015)
SYLLABUS*
Trial court issued an order holding the mother of an enrolled minor tribal member in contempt for removing the child from the State of Washington in violation of parenting plan issued by trial court. Trial court also issued a warrant for the mother’s arrest, but subsequently quashed the warrant based on a technical defect and declined to issue a new warrant absent a motion from the father. Mother filed a petition for writ of mandamus and writ of prohibition in the Court of Appeals seeking to vacate the contempt order and prohibit the trial court from making future findings of contempt on the existing facts. Reasoning that the mother failed to timely appeal the original contempt ruling, that she maintained the right to appeal any future contempt rulings, and that other remedies remained available to her, Court of Appeals holds mother failed to establish a clear ministerial duty to be compelled through issuance of a writ, and that because mother has adequate remedies at law, Court of Appeals need not decide the threshold question of whether it has authority to issue writs. Petition denied.
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Before: |
Eric Nielsen, Chief Judge; Lauren King, Judge; Lisa Vanderford-Anderson, Judge. |
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Appearances: |
David Howard and Brian Kilgore, Howard & Kilgore Law, for Petitioner. |
OPINION
Per curiam:
Petitioner1 Laurie Wood (formerly Laurie Gasser) seeks a writ of mandamus and prohibition vacating contempt findings issued by the Port Gamble S’Klallam Community Court
13 NICS App. 28, IN RE A.A.F. (July 2015) p. 29
against Ms. Wood for removing her minor daughter, A.A.F., from Washington State in violation of the Community Court-approved parenting plan, and prohibiting the Community Court from issuing a new contempt ruling based on the same facts.
STATEMENT OF THE CASE
On August 11, 2011, the Community Court entered a final parenting plan for parents Laurie Wood (Petitioner), a non-Indian, and Jeremy Fulton (Respondent), an enrolled member of the Port Gamble S’Klallam Tribe. The parenting plan prohibits the parties from taking their child, A.A.F., out of Washington State, and effectively prohibits the parties from leaving the child with her grandparents. Parenting Plan Section III(A) (prohibiting overnight visitations at the paternal grandparents’ residence and prohibiting A.A.F. from being alone with her maternal grandfather).
Petitioner is designated the primary Custodian/Parent under the parenting plan. Parenting Plan Section V. Shortly after the parenting plan was entered by the Community Court, Petitioner lost her job and became homeless, and Respondent was sent to jail. However, Petitioner was able to secure living arrangements and employment in Nevada along with her boyfriend at the time (now her husband). Petitioner filed an emergency motion with the Community Court on December 5, 2011, requesting permission to take A.A.F. with her to Nevada. Proof of service on Respondent was not filed with the emergency motion, and the motion was never heard by the Community Court. In late December, while Respondent was still in jail, Petitioner brought A.A.F. to live with her in Nevada.
Respondent was subsequently released from jail and filed a motion on January 9, 2012 to hold Petitioner in contempt for taking A.A.F. out of state in violation of the parenting plan. The court record does not contain proof of adequate service of this motion on Petitioner. Although the Community Court failed to hold a hearing on Petitioner’s request to permit her to relocate A.A.F. to Nevada, the Community Court nonetheless held a hearing on the Respondent’s motion on February 22, 2012. See January 24, 2012 Order on Motion for Contempt, p. 2 (noting that “[n]on-moving party needs to be served.”). Petitioner failed to appear at the February 22 hearing. The Community Court issued an order on February 24, 2012, finding Petitioner in contempt and stating that criminal charges would be brought against her for failure to purge her contempt by appearing with A.A.F. on March 20, 2012. Petitioner was served with this order just five calendar days (three business days) before the March 20 hearing, and did not appear at the hearing. On March 22, 2012 another contempt order was issued based on Petitioner’s failure to attend the March 20, 2012 hearing. The record indicates Petitioner was served with the March 22nd order on March 23, 2012.
The Port Gamble S’Klallam prosecutor subsequently filed contempt of court charges against Petitioner on April 26, 2012 under a new cause number. The Community Court dismissed these charges on September 4, 2012 due to concern that it was unclear whether the contempt charges were civil or criminal in nature. August 24, 2012 Order, pp. 3-4. On
13 NICS App. 28, IN RE A.A.F. (July 2015) p. 30
September 4, 2012, in the same cause number, the Community Court issued an arrest warrant “in civil action” for Petitioner. Because that cause number had been closed following dismissal, the tribal prosecutor filed a motion on November 24, 2014 to quash the arrest warrant and re-issue it under a different case. The Community Court ruled that in order to re-issue the warrant, a proper motion with notice to the Petitioner must be filed.
Petitioner did not appeal either contempt order. On November 18, 2014, over two years from when the contempt orders were issued, Petitioner filed with this Court a petition for a writ of mandamus and prohibition to vacate the contempt order issued by the Community Court on February 24, 2012 and to prohibit the court from making future findings of contempt on the same facts. The petition and supporting documents were served on Respondent on November 26, 2014. On December 8, 2014 and March 24, 2015, Petitioner filed supplemental briefing in support of her Petition. Both supplemental briefs were timely served upon Respondent. No responsive briefing was filed by Respondent in this matter.
ISSUE
The issue is whether Petitioner can challenge the contempt orders by way of writs of mandamus and prohibition. We find that even if this Court has the authority to issue these extraordinary writs, on this record Petitioner has failed to show that remedy is available to her.
STANDARD OF REVIEW
Under Port Gamble S’Klallam Tribal Code Chapter 7.03, an appellant may appeal either as a matter of right or by permission of the Court of Appeals. A written notice of appeal must be filed with the Community Court and the Court of Appeals within twenty days after the entry of the decision of the Community Court that the party filing notice wants reviewed. PGSTC § 7.04.01. Our review is limited to issues of law, unless we determine the trial court’s findings of fact are clearly erroneous. PGSTC § 7.03.04.
DISCUSSION
The Tribe’s judicial codes do not specifically grant this Court the authority to issue extraordinary writs. We would need to find we have the inherent authority under the Tribe’s constitution or the implied authority under the Tribe’s judicial codes. However, we find it unnecessary to address the issue of whether this Court has the authority to issue a writ of mandamus or prohibition; even if it does have such authority, Petitioner has failed to establish she is entitled to either in this case.
Issuance of a writ of mandamus (also known as a writ of mandate) is an extraordinary measure reserved for those exceptional circumstances in which no other form of relief is available. Hoopa Valley Indian Housing Authority v. Hoopa Valley Tribal Court; (Real Party in Interest, Clarence Lewis, Sr.), 4 NICS App. 164, 165-66 (Hoopa Ct. App. 1997); see also Hoopa Health Assoc. v. Hoopa Valley Tribal Court, 4 NICS App. 169, 170 (Hoopa Ct. App. 1997); Hoopa Valley Tribal Council v. Hoopa Valley Tribal Court; (Real Parties in Interest: Troy S. Fletcher and George L. Nixon, III), 4 NICS App. 167 (Hoopa Ct. App. 1997)). Mandamus “lies to compel performance of ministerial act or mandatory duty where there is a clear legal right in
13 NICS App. 28, IN RE A.A.F. (July 2015) p. 31
plaintiff, a corresponding duty in defendant, and a want of any other appropriate and adequate remedy.” Black’s Law Dictionary, 973 (7th ed. 1999).
Petitioner has not established that a clear ministerial duty exists which performance this Court must compel through issuance of a writ of mandamus. More importantly, as the Hoopa Court of Appeals noted in a procedurally similar case, Petitioner had the opportunity to appeal the trial court’s contempt order through the ordinary appeals process, and the time for filing an appeal has expired.2 Hoopa Valley Indian Housing Authority v. Hoopa Valley Tribal Court; (Real Party in Interest, Clarence Lewis, Sr.), 4 NICS App. at 166. Because Petitioner had the right to appeal the contempt orders issued in this case, she had an adequate legal remedy to challenge the orders.
A writ of prohibition, like a writ of mandamus, is also a drastic remedy. The common law writ of prohibition is of ancient origin. 73 C.J.S. Prohibition § 3 (1983). It is an extraordinary writ issued by an appellate court to prevent a lower court from exceeding its jurisdiction. Black’s Law Dictionary, 1228 (7th ed. 1999). Two conditions must be met to grant the writ: (1) the party to whom the writ is directed must be acting without or in excess of its jurisdiction; and (2) there must be an absence of a plain, speedy, and adequate remedy in the ordinary course of legal procedure. See In re Jones, 39 Wash.2d 956, 958, 239 P.2d 856 (1952).
For the same reasons Petitioner’s request for a writ of mandate fails, so too does her request for a writ of prohibition. If the Community Court issues yet another contempt order on the same facts, Petitioner has the right to appeal the order and to request a stay until the appeal is resolved. PGSTC §§ 7.05.01; 7.06.01. Simply put, Petitioner has an adequate legal remedy.
However, this case is troubling. Based on the record, we believe Petitioner’s due process rights were likely violated, and if Petitioner had timely appealed the contempt orders we would not have hesitated to reverse the orders.
Port Gamble S’Klallam Tribal Code § 1.06.05 states “in any contempt proceeding, the alleged contemnor shall be entitled to reasonable notice and time to prepare a defense.” Likewise, under the Indian Civil Rights Act, no Indian tribe may “deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.” 25 U.S.C. § 1302(8). We have previously held that under the Indian Civil Rights Act, procedural due process requires notice and the opportunity to be heard in a fair hearing before a neutral fact finder. Port Gamble S’Klallam Tribe v. Callihoo, 10 NICS App. 124, 128 (Port Gamble S’Klallam Tribal Ct. App. 2012) (citing In re the Welfare of D.D., 3 NICS App. 269, 270, (Port Gamble S’Klallam Tribal Ct. App. 1994)).
The record does not show that either Respondent’s January 9, 2012 contempt motion or notice of the Community Court’s hearing on the contempt motion was properly served on Petitioner. The Community Court’s subsequent order finding Petitioner in contempt and
13 NICS App. 28, IN RE A.A.F. (July 2015) p. 32
requiring her to appear with A.A.F. on March 20, 2012 was served on Petitioner just five calendar days (three business days) before the March 20 hearing.
In In re the Welfare of D.D., the Port Gamble S’Klallam Court of Appeals held that the appellant’s due process rights were violated by the Community Court when she was not given the opportunity to present testimony nor an opportunity to respond to her ex-partner’s motion to terminate guardianship. 3 NICS App. 269, 271 (Port Gamble S’Klallam Ct. App. 1994). Likewise, in In Re the Welfare of D.C.D., this Court found that the appellant did not receive adequate notice when he was not served with his ex-partner’s petition for a custody hearing, and was not notified of the hearing on that motion until the day of the hearing. 5 NICS App. 116, 118 (Port Gamble S’Klallam Ct. App. 1999).
Here, Petitioner was not given an opportunity to respond to Respondent’s contempt motion because she was not served with either the motion itself or the notice of the hearing on the motion. Therefore, the court’s February 22, 2012 hearing on the contempt motion and its subsequent finding of contempt were improper and in violation of Petitioner’s right to reasonable notice and an opportunity to be heard. The same holds for the March 22, 2012 contempt order. Petitioner was not afforded her right to reasonable notice and the opportunity to be heard.
Petitioner was also not afforded reasonable notice and time to prepare for the Community Court’s subsequent hearing to purge the contempt order. As this Court noted in In Re the Welfare of D.C.D.,
The Port Gamble Tribal Code does not address notice requirements or any other procedures for custody modification petitions; however, it does require notice of a hearing of at least twenty days for hearings on petitions for guardianship (§§16.03.05 and 16.08.05), termination of parental rights (§16.04.05), and adoption (§16.05.05). Fact-finding hearings require notice of at least five working days (§16.07.17). Clearly, the code requires that respondents be given some minimal notice of hearings.
5 NICS App. 116, 118 (Port Gamble S’Klallam Ct. App. 1999). The notice provided Petitioner in this case was only three business days, which was not adequate notice and time to prepare for the Community Court’s hearing.
Also troubling is the procedural manner in which the Community Court handled the motions filed by the parties. Petitioner filed an emergency motion with the Community Court on December 6, 2011, requesting permission to take A.A.F. with her to Nevada. The Community Court did not hear the emergency motion despite Petitioner’s request the Court set a hearing and provide her notice of the hearing. (Emergency Motion filed December 6, 2011). Although Petitioner did not file proof of service of the motion on Respondent, the Respondent likewise did not file proof of service of his January 9, 2012 motion requesting the Court find Petitioner in contempt. Nonetheless, in its January 24, 2012 order, the Community Court set a hearing on Respondent’s motion for February 21, 2012, and directed the Court Clerk to serve Petitioner with notice of the February 21st hearing. There is nothing in the record that shows why the Community Court ignored Petitioner’s request for a hearing on her emergency motion but granted Respondent’s request on his contempt motion, even though both parties failed to file
13 NICS App. 28, IN RE A.A.F. (July 2015) p. 33
proof of service of their respective motions. There is nothing in the record to show why the Community Court ordered the clerk to serve Petitioner with Respondent’s motion and the hearing date but entered no similar order for Petitioner’s motion. It appears to this Court that the Community Court failed to apply the same standard to Petitioner and Respondent, which raises both due process and equal protection concerns. And even if the Community Court was justified in granting Respondent a hearing on his motion, it necessarily should have addressed Petitioner’s pending motion to relocate A.A.F. to Nevada because if there were legal or factual reasons to support relocation there would have been no basis for a contempt finding.
Although we hold Petitioner is not entitled to relief on her Petition, she is not without a remedy. She has the option to file a motion to vacate the contempt orders under PGSTC § 3.05.02, and, the non-prevailing party would be entitled to seek appellate review of the Community Court’s order on the motion under Chapter 7.03.
CONCLUSION AND ORDER
We decline to issue a writ of mandamus and prohibition. The Petition is dismissed.
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.
At various times over the course of this child custody proceeding, each of the parties has filed petitions and therefore been referred to as “Petitioner” and “Respondent.” For purposes of this writ proceeding, the denomination “Petitioner” applies exclusively to Ms. Wood.
Petitioner argues that she was not served with the Community Court’s initial contempt order until 20 days after it was entered. However, the Community Court’s final contempt order was issued March 23, 2012, and Petitioner was served with the final order on March 24, 2012. Petr.’s Petition for Writ, p. 6 (Nov. 11, 2014).