BULLINGTON v. HENDRICKSON

17 NICS App. 16, BULLINGTON v. HENDRICKSON (January 2019)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

Travis Tyler Bullington, aka Tyler William Hogan, Respondent/Appellant,

Tess Hendrickson, Petitioner/Appellee.

NO. TUL-CV-AP-2018-0148 (January 29, 2019)

SYLLABUS^*

Trial court found appellant in default for not physically attending a domestic violence protection order (DVPO) hearing where he was the respondent; appellant had his counsel present at the hearing. Appellant argued trial court erred when it issued the DVPO against him because code does not require a respondent to be physically present at a DVPO hearing. Court of Appeals holds that trial court committed an error of law in refusing appellant's counsel to represent his client in the hearing to determine whether civil DVPO should be issued and respondent did not need to be present. Court of Appeals reversed trial court's order, vacated the DVPO and remanded to trial court for expedited hearing.

Before:	Daniel A. Raas, Chief Justice; Elizabeth F.M. Nason, Justice; Jane M. Smith, Justice.
Appearances:	Richard Wogsland, for Appellant; Lori Guevara, for Appellee.

OPINION

Raas, C.J.:

This matter comes before the Court of Appeals pursuant to the timely Notice of Appeal filed by Appellant Travis Tyler Bullington on May 31, 2018, appealing an Order of Protection – Domestic Violence entered by the Tulalip Tribal Court on May 11, 2018.

STATEMENT OF THE CASE

17 NICS App. 16, BULLINGTON v. HENDRICKSON (January 2019) p. 17

Ms. Hendrickson filed a civil complaint against Mr. Bullington pursuant to TTC 4.25 seeking a Domestic Violence Protection Order (DVPO) on January 12, 2018. A Temporary Order was promptly issued, subsequent hearings were set, and the matter was scheduled for hearing on May 11, 2018. When the case was called for hearing, the Appellant was personally not present, instead, his counsel appeared on his behalf.¹ His lawyer is admitted to practice in the Tulalip Courts and had filed a formal Notice of Appearance signaling his representation of the Appellant well before May 11, 2018. At the May 11, 2018 hearing the Tribal Court noted Mr. Bullington’s absence and granted Ms. Hendrickson’s motion for a default, ruling that the physical presence of the Respondent in a DVPO hearing, here Mr. Bullington, at a DVPO hearing is required and that a Respondent could not be represented solely by counsel. Because Mr. Bullington was in default, his counsel was not permitted to cross-examine Ms. Hendrickson’s witnesses or introduce witnesses or evidence on Mr. Bullington’s behalf, nor was counsel allowed to argue the sufficiency of the evidence. Pursuant to the testimony and the evidence allowed, the DVPO at issue here was entered.

Mr. Bullington appealed, asserting that the Tribal Court erred in entering the default, because Tulalip law permits counsel to represent a Respondent in a DVPO hearing without requiring the Respondent to be physically present.

ISSUE ON APPEAL

Did the Tribal Court err in entering a default judgment (included in the Protection Order) against the Appellant because the Appellant was not physically present for trial although his counsel was present with witnesses and prepared for trial?

STANDARD OF REVIEW

The questions of whether a Respondent in a Domestic Violence Protection Order hearing must physically appear and cannot be represented solely by counsel when the defendant is not physically present are questions of law, involving only the interpretation of Tulalip law. Issues of law are reviewed under a de novo standard, without regard to the Tribal Court’s determination. TTC 2.20.090(4).

DISCUSSION

Initially, the DVPO at issue here was issued under Article V (‘Civil Remedies and Actions’) of TTC 4.25, the Domestic Violence Code. The DVPO speaks in the language of a civil injunction: the Respondent (Mr. Bullington) is hereby “restrained”. The Tribal Court made its Findings of Fact using a civil standard of proof, “preponderance of the evidence”, not the criminal standard of “beyond a reasonable doubt”. While willful violation of the DVPO issued here may lead to criminal prosecution under TTC 4.25.380, the DVPO here is a species of civil injunction. Thus this opinion is limited to DVPOs issued under Article V. of TTC 4.25, TTC

17 NICS App. 16, BULLINGTON v. HENDRICKSON (January 2019) p. 18

.25.470-.560, and other civil orders issued or recognized under the Domestic Violence Code, TTC 25.

1. The Power of the Tulalip Tribes to Enact and Enforce the Domestic Violence Code, TTC 4.25

The Tulalip Board of Directors has the power to promulgate ordinances governing the conduct of tribal members, to maintain law and order and to create a tribal justice system. Constitution, Art. VI, Sec. 1 K. The Board has enacted the Domestic Violence Protection Code, TTC 4.25, to regulate instances of domestic violence involving Tulalip tribal members and those individuals who meet one of the criteria found at TTC 4.25.100(23):

(23) “Intimate partner” means:

(a) Spouses;

(b) Former spouses;

(d) Persons who have a child in common, regardless of whether they have been married or have lived together at any time in a romantic relationship; or

(e) Persons who are dating or have dated in the past.

These criteria parallel and include all persons identified in 25 U.S.C. 1304. Appellant, although not a member of a federally recognized Tribe of American Indians, is such a person and is subject to the provisions of the Tulalip Domestic Violence Code. The portions of the DV Code relating to civil Domestic Violence Protection Orders, TTC 4.25.470-.560, set out the procedures and substance for obtaining and enforcing a civil DVPO, including the hearings required to be held. The Tribal Court followed the procedures in the Tribal Code in this case.

2. The Applicable Sections of the Tulalip Tribal Code.

The Tulalip Tribal Code is silent both as to whether a Respondent in a Petition for a civil DVPO (Appellant here) must be physically present at any or all hearings regarding a civil DVPO, and as to whether the Respondent may be represented by counsel without being physically present. The language of the Constitution and Bylaws of the Tulalip Tribes and other parts of the Tulalip Tribal Code including the DV Code must be interpreted to answer these questions. If no Tulalip law is on point, procedural decisions of other Tribal Courts, federal law and Washington law offer guidance. TTC 2.05.030(2).

Some of the goals of the DV Code are the healing of families which have suffered from domestic violence, the return of health to those families through the recognition of the harm to the family and community, the taking of responsibility for the damages caused by domestic

17 NICS App. 16, BULLINGTON v. HENDRICKSON (January 2019) p. 19

violence, the healing of families and individuals through immediate recognition and acknowledgement of domestic violence and longer term family healing through education, treatment and other appropriate services. TTC 4.25.010. This section also requires that TTC be given the broadest possible scope to carry out the purposes of the DV Code. Both the Tulalip Rules of Court 2.1.2 (b)(v) and TTC 4.25.020 emphasize that all people are to be treated with respect.

The Tulalip Tribal Code sets these rules for the Tulalip Tribal Courts:

2.05.030 General provisions.

(1) Purpose and Construction. The provisions of this title [Title 2 Tribal Justice System] and TTC Title 3 [Criminal Offenses and Infractions] shall be construed in accordance with Tribal custom as well as to achieve the following general goals:

(a) To secure the just, speedy, and inexpensive determination of every civil action;

(b) To provide for the just determination of every criminal proceeding;

(d) To secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay; and

(e) To enhance public safety on the Tulalip Reservation.

All these goals save .030(1)(b) are relevant to this case and are incorporated in the Domestic Violence Code by TTC 4.25.030: “Jurisdiction over domestic and family violence matters shall be in accordance with TTC Title 2.”

TTC 2.05.030 provides in part: “(8) Right to Counsel. Any person appearing as a party in Tribal Court shall have the right to counsel at his or her own expense.”

TTC 4.25.100(17) defines an ex parte Domestic Violence hearing:

“Ex parte” in this chapter means that only the requesting party is heard by the Court, and that notice and an opportunity to contest the facts are not available to the party adversely affected by the Court’s action.”

This strongly implies that a DV hearing which is not ex parte is one in which the party against whom a DVPO, whether criminal or civil, is sought is a hearing in which the that party, here the Appellant, is entitled to notice, an opportunity to be heard, and the right to contest the facts which would inform the Court’s decision. The Tulalip Tribal Code also emphasizes the importance of fairness and a person’s right to present their positions to the court.

3. Is Respondent in a civil DVPO is required to be physically present at each, or any, Tribal Court proceeding regarding the issuance of a civil DVPO?

17 NICS App. 16, BULLINGTON v. HENDRICKSON (January 2019) p. 20

TTC 4.25.500 concerns the issuance of a civil DVPO, and requires that the Tribal Court a hearing within 14 days of the issuance of a Temporary DVPO:

TTC 4.25.500 (4) Hold a hearing within 14 days after the granting of the ex parte temporary protection order to determine whether the temporary order should be vacated, extended, or modified in any respect, or made a permanent order of protection with or without an expiration date.

(a) At the hearing, both parties may testify, and the Court will review the record and may consider other relevant evidence. Copies of any writings, declarations, affidavits or other documentary evidence entered as exhibits must be provided to the other party. Rules of evidence may be relaxed in these proceedings and testimony is not required.

This section allows the Respondent (here the Appellant) to testify, but neither requires him to do so nor requires him to be present at the hearing.²

In contrast, the Tulalip Tribal Code requires the defendant to be present at all stages of a criminal proceeding:

TTC 2.25.050 Defendant must appear.

The defendant shall personally appear at all stages of the proceedings. If the defendant fails to appear, the Court may issue a bench warrant. Appearance by counsel is insufficient to avoid issuance of a bench warrant. The Court may in its discretion, however, allow the defendant to appear by counsel or telephonically.

No similar requirement is present for a defendant in a civil case in Tribal Court, nor for a Respondent in the DV Code dealing with civil DVPOs. In addition, a criminal defendant, with the permission of the Tribal Court, may appear by counsel rather than in person. While the failure of a Respondent to appear in person at hearings regarding the issuance of a civil DVPO may make it difficult for them³ to refute the allegations against this is a litigation choice that a Respondent is entitled to make. The Respondent’s physical presence at hearings leading to the issuance of a civil DVPO is not required by the Tulalip Tribal Code.

The Tribal Court committed an error of law in finding that the Respondent was in default solely because he did not appear in person at the hearing when he had counsel present on his behalf.

4. Can a Respondent in a civil DVPO hearing who chooses not to be present be represented by counsel who may cross-examine witnesses and evidence, call witnesses and introduce evidence on Respondent’s behalf?

17 NICS App. 16, BULLINGTON v. HENDRICKSON (January 2019) p. 21

The burden of proof to introduce of facts sufficient to support the issuance of a civil DVPO is upon the Petitioner, whether or not the Respondent is physically present. Lower Elwha v. Elofson, 4 NICS App. 99, 102 (Lower Elwha, 1996), Lummi Indian Tribe v. Johnnie, 3 NICS App. 273, 279 (Lummi, 1994). If the Respondent is represented by counsel, there is nothing in the Code prohibiting them from participating in the trial or hearing through their lawyer. Instead, the Code strongly implies that a party who is not physically present at a civil proceeding, such as the hearing regarding whether a civil DVPO should issue, is entitled to have their counsel fully participate on their behalf.

As noted above, the TTC is to be broadly construed to implement, among others, the goals of a just determination of every civil action, to protect the rights of all individuals, to secure fairness in administration, and to enhance public safety on the Tulalip Reservation. TTC 2.05.030(1). All parties appearing in Tribal Court have the right to counsel at their own expense. TTC 2.05.030(8). The Code is explicit that where counsel represents a party, their signature is preferred over that of the party’s signature, TTC 2.10.080(2), or may substitute for the party’s signature, TTC 2.10.030(2)(a). A party may be prevented from appearing in Tribal Court for a number of reasons, or they may choose not to appear for reasons of their own, but a fair reading of the Tulalip Tribal Code is that the absent party in a civil DVPO case may be represented by their counsel. The Tribal Court committed an error of law in refusing Mr. Bullington’s counsel the ability to cross-examine and examine witnesses, adduce and question evidence, and otherwise represent his client in all phases of the hearing to determine whether the civil DVPO should issue.

CONCLUSION AND ORDER

The Tribal Court is REVERSED, the DVPO entered in this matter is VACATED, and this matter is REMANDED for an expedited hearing pursuant to TTC 4.25.570-640. Pending this hearing the Temporary DVPO is REINSTATED.

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.

TTC 2.05.030(11)(cc) defines “counsel” as an attorney or Tribal spokesperson. This statement is repeated in TTC 2.05.030(8) and TTC 2.05.080(1), indicating that these three titles refer to a person who can appear on behalf of parties in the Tulalip Courts. The parties, and this Court, agree that Appellant’s counsel meets this definition,

The hearing in this case was continued with the agreement of the Appellant past the fourteen day requirement.

We use the neutral pronoun to acknowledge that all persons along the spectrum of gender identification may be named as Respondents in a civil DVPO Petition.