14 NICS App. 32, RIVERA v. SOUTHERN UTE TRIBE (June 2016)

IN THE SOUTHERN UTE TRIBAL COURT OF APPEALS

SOUTHERN UTE INDIAN RESERVATION

IGNACIO, COLORADO

Ricardo Rivera, Defendant/Appellant,

v.

Southern Ute Indian Tribe, Plaintiff/Appellee.

NO.    15-022-SUTC (June 7, 2016)

SYLLABUS^*

Tribal court forfeited the bail of Appellant who appeared for court hearings, but failed to comply with other release conditions. Appellant argued that tribal court did not have authority as bail forfeiture was not specifically authorized by tribal code. Court of Appeals found that the tribal court lacked such authority and reversed trial court’s decision and remanded to tribal court.

Before:	Randy A. Doucet, Chief Judge; John C. Sledd, Judge; Thomas Weathers, Judge.
Appearances:	Timothy A. Heydinger, Southern Ute Public Defender, for Defendant-Appellant; Benjamin Lammons, Southern Ute Tribal Prosecutor, for Plaintiff-Appellee.

OPINION

Doucet, C.J.:

BACKGROUND

Ricardo Rivera was arrested on the charges of assault, assault and battery, disorderly conduct, criminal mischief, and harassment. To secure his release pending trial, the tribal court required Mr. Rivera to post $5,000 in cash or surety. In addition to the bond requirement, the court also ordered Mr. Rivera to comply with conditions while on pre-trial release from custody.

14 NICS App. 32, RIVERA v. SOUTHERN UTE TRIBE (June 2016) p. 33

Mr. Rivera posted $5,000 cash bail and he was required to sign an appearance bond that included release conditions that he was to have no contact with his mother and not consume alcohol. While on pre-trial release, Mr. Rivera allegedly violated the release conditions by having contact with his mother and consuming alcohol. He later surrendered himself to the police and was arrested and taken into custody. New charges were filed arising out of the incident.

The Tribe filed a motion to revoke and forfeit Mr. Rivera’s bail money for having violated the pretrial release conditions. After a hearing, the tribal court granted the motion and forfeited $2,000 of Mr. Rivera’s bail money. Mr. Rivera now appeals. He disputes the court’s authority to forfeit bail for any reason other than failing to appear at a scheduled court hearing.

STANDARD OF REVIEW

Statutory interpretation is a question of law subject to de novo review. Idaho v. Coeur D'Alene Tribe, 794 F.3d 1039, 1042 (9th Cir. 2015); Trustees of Amalgamated Ins. Fund v. Geltman Industries, Inc., 784 F.2d 926, 929 (9th Cir. 1986). “A court’s primary duty in interpreting any statute is to discern and implement the intent of the legislative body.” Skokomish Indian Tribe v. Cultee, 8 NICS App. 68, 70 (Skokomish Tribal Ct. App. 2008). To determine legislative intent, the first step is to look to the plain language of the statute. U.S. v. Monsanto, 491 U.S. 600, 610 (1989); United States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999). “The starting point must always be the statute’s plain language and ordinary meaning.” Matilton v. Hoopa Valley Tribe, 7 NICS App. 65, 69 (Hoopa Valley Tribal Ct. App. 2005).

"It is well established that when the statute’s language is plain, the sole function of the courts – at least where the disposition required by the text is not absurd – is to enforce it according to its terms." Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (internal quotes omitted); see also In the Guardianship of N.S., 10 NICS App. 90, 92 (Muckleshoot Tribal Ct. App. 2012) (“Ordinarily, courts apply the plain language of a statute.”) The text of the law must also be construed as a whole. See Suquamish Tribe v. Lah-huh-bate-soot Bennett, 4 NICS App. 32, 50 (Suquamish Tribal Ct. App.1995) (construing tribal statute as a whole).

DISCUSSION

     The tribal court based its ruling on court-promulgated administrative orders 07-01 and 2008-1 and court created forms that included language purporting to authorize the court to forfeit bail money if an accused failed to abide by release conditions.¹ There was nothing in the record showing that the Tribal Council approved the court’s administrative orders.

14 NICS App. 32, RIVERA v. SOUTHERN UTE TRIBE (June 2016) p. 34

The Tribal Council is empowered to enact ordinances and codes to govern the administration of justice through the tribal courts and to prescribe the powers, rules and procedures of the tribal courts in the adjudication of cases involving criminal offenses.² The tribal court is authorized to establish all other details of judicial procedure not prescribed in the tribal code, which “shall be established by rules promulgated by the Tribal Court and approved by the Tribal Council.”³ The judge of the Southern Ute Tribal Court has a duty to make recommendations to the Tribal Council for the enactment or amendment of such rules of court.⁴

    The code provision at issue is S.U.T.C. § 4-1-115, Bail. The relevant sections of the code states as follows:

(1) Release Prior to Trial. Every person charged with a criminal offense before the Tribal Court shall be entitled to release from custody pending trial under whichever one or more of the following conditions is necessary to assure the appearance of the defendant at any time required:

…

(c) Release with reasonable restrictions on the travel, association, or place of residence of the accused during the period of release;

(d) Release after deposit by the accused or any other person a bond and cash or pledge of sufficient collateral in an amount specified by the judge or bail schedule.

…

(f) Release upon any other condition deemed reasonably necessary to assure the appearance of the accused as required.

The code contains no provisions addressing bail forfeiture. This case turns on the interpretation of this statute.

In analyzing the code governing bail as a whole, the plain language of the bail provisions is intended to assure the appearance of a defendant as the sole purpose of the requirement to post bail. There are no provisions in S.U.T.C. § 4-1-115 that authorize the tribal court to impose conditions on release tied to the bail other than conditions to assure appearance. There are also no code provisions that authorize bail forfeiture. However, the only plausible intention of the Tribal Council in authorizing monetary bail, and the necessary implication of the statute, is that such bail might be forfeit. Therefore, we interpret the statute to require that any condition imposed by the court that might result in the forfeiture of bail must be (1) for the sole purpose of

14 NICS App. 32, RIVERA v. SOUTHERN UTE TRIBE (June 2016) p. 35

assuring the appearance of the accused at scheduled court hearings, and (2) a condition for which bail forfeiture is a necessarily implied remedy.

The tribal court’s order forfeiting Mr. Rivera’s bail did not meet these conditions. Assuming that a condition prohibiting alcohol use or contact with a certain person would help secure Mr. Rivera’s appearance, forfeiture of cash bail is not a necessary remedy for violating such conditions. Such condition could be enforced through contempt proceedings that are expressly authorized in the code. See S.U.T.C. § 1-3-117.

The Tribe argues that the court has authority to implement procedures as follows – “[i]f no procedure is specifically prescribed by this Code, the court may proceed in any manner not inconsistent with this Code.”⁵ As Appellant correctly points out, this code section does not authorize the promulgation of procedures when none are authorized; it only allows for proceeding in any manner not inconsistent with the code when judicial action is authorized but no procedure is prescribed. For example, if a defendant posts cash bail but fails to appear the court may proceed to hold a bail forfeiture hearing when there is no procedure specifically prescribed in the code because cash bail necessarily implies possible forfeiture, and a hearing is necessary to provide due process to the accused. Further, a bail forfeiture hearing is not inconsistent with the code. Here, in contrast, bail forfeiture is neither expressly nor impliedly authorized, and the court has no authority to implement procedures to accomplish such forfeiture.

Moreover, the administrative order 7-01 issued by the tribal court is not a procedural action that could be implemented under S.U.T.C. § 1-3-111(1) because it includes substantive law. Substantive law creates, defines and regulates the rights and duties of the parties, whereas procedure consists of the rules by which the substantive law is determined and made effective. People v. Prophet, 42 P.3d 61, 62 (Colo.App. 2001). Here, the tribal court issued an administrative order that effectively amended S.U.T.C. § 4-1-115, by giving itself authority to forfeit bail money in circumstances neither specified in nor implied by statute. Requirements that change the defendant’s entitlement to bail, including conditions upon which bail may be forfeited, change the substantive rights of the accused provided for in S.U.T.C. § 4-1-115 and are, therefore, substantive in nature. See State v. Romero, 160 P.3d 914, 916 (N.M. 2007) (holding that “the terms of a bond that broaden the liability of a party beyond the liability contemplated by statute are ineffective.”)

The tribal court has no authority to promulgate substantive law. Administrative Order 7-01 goes beyond the authority the court may have to proceed in a manner not inconsistent with the Tribe’s code when there is no procedure. Making substantive amendments to the statutory law is reserved for the law making body of the Tribe.

CONCLUSION

14 NICS App. 32, RIVERA v. SOUTHERN UTE TRIBE (June 2016) p. 36

Therefore, the trial court’s decision to forfeit Mr. Rivera’s bail for conditions other than failure to appear for a scheduled court hearing is REVERSED. This matter is REMANDED to the tribal court to conduct further proceedings regarding Mr. Rivera’s bail forfeiture consistent with this opinion.

REVERSED and REMANDED.

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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.

Administrative Order 7-01, 8/12/2007, Appellant’s Exhibit F. See Appellant’s Opening Brief, filed 3/14/2016, pgs. 6-7.

See Constitution of the Southern Ute Indian Tribe, Article VII, Section 1, (e).

S.U.T.C. § 1-3-111(1).

Id. at subsection (2).

S.U.T.C. §4-1-130, Procedure Not Otherwise Specified.