17 NICS App. 22, GUYER v. JACKSON (February 2019)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
Edward Guyer, Plaintiff/Appellee,
v.
Ryan Jackson; Everette H. Colegrove, Jr.; Bryon Nelson, Jr.; Leilani Pole; Leonard Masten, Jr.; Oscar Billings; and Vivienna Orcutt; in their official capacities, Defendants/Appellants.
NO. A-18-004 (February 12, 2019)
SYLLABUS*
Plaintiff filed suit alleging tribal council failed to follow constitutional requirements when removing him from the vice-chairman position. Defendants filed interlocutory appeal after trial court denied their motion to dismiss. The tribal council, which included the plaintiff as a member, elected a new vice-chairman after the general election. Court of Appeals vacated trial court order and dismissed case as moot.
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Before: |
Lisa L. Atkinson, Chief Judge; Matthew L.M. Fletcher, Judge; Jordan E. Stephens, Judge. |
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Appearances: |
Thomas P. Schlosser and Thane D. Somerville, Morisset, Schlosser, Jozwiak & Somerville, APC, for Appellants; Bree R. Black Horse, Galanda Broadman, PLLC, for Appellee. |
OPINION
Stephens, J.:
This interlocutory appeal arises from the Tribal Court’s Order Denying Defendants’ Motion to dismiss. For the reasons set forth below, this Court vacates the Order and dismisses the case.
I. Background
During the relevant time period, Plaintiff and Defendants were all members of the Hoopa Valley Tribal Council. On May 3, 2018, by Resolution 18-35, the Tribal Council removed
17 NICS App. 22, GUYER v. JACKSON (February 2019) p. 23
Guyer from his position as Vice Chairman of the Tribal Council and appointed Defendant Oscar Billings to that position. Guyer was out-of-town and not in attendance at the Tribal Council’s May 3 meeting.
The Tribe held a general election on June 19, 2018. Guyer’s term was not expired. Guyer remains a Tribal Councilmember. However, on August 7, 2018, after the election, the newly-elected Tribal Council adopted Resolution 18-62, which appointed officers for the new Tribal Council. Resolution 18-62 appointed Defendant Oscar Billings as Vice Chairman.
In his complaint, filed May 15, 2018, Guyer alleges that certain Constitutional requirements applied to the removal procedure and that the Tribal Council failed to follow those procedural requirements. On May 23, 2018, the Defendants filed a Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim Upon Which Relief Can be Granted. On August 16, 2018, the Defendants’ filed a Notice and Suggestion of Mootness, based on the adoption of Resolution 18-62 that appointed Oscar Billings as Vice Chairman. On September 25, 2018, the Trial Court entered an Order that denied the Defendants’ motion to dismiss and found that the case is not moot. The Defendants timely filed this interlocutory appeal before this Court.
II. Discussion
The Defendants appealed the Trial Court’s refusal to dismiss the case on the grounds of sovereign immunity. We do not reach that issue and instead dismiss the case because it is moot.
Guyer’s claim is based upon a Tribal Council’s decision to remove him as vice-chairman and select a new vice-chairman without his consent in May of 2018. A general election occurred in June of 2018 and, shortly thereafter, the Tribal Council – which included Guyer – appointed one of the defendants as vice-chairman. Guyer continues in his role as a council member but not as a vice-chairman.
The Trial Court cited Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed 2d 491 (1969) in its finding that the case at hand presents a “live issue”. In Powell, a member of the United States House of Representatives filed suit seeking declaratory and other relief after the House of Representatives excluded him from taking his seat in the 90th Congress. Id. at 489-90. Later, Powell was seated in the 91st Congress. Id. at 494. On appeal with the United States Supreme Court, the defendants filed a suggestion of mootness given that Powell was eventually re-seated. Id. at 495.
Though Powell had multiple demands for relief on appeal related to the constitutionality of his exclusion from the 90th Congress, the Court relied on his claim for back-pay alone in holding that the case was not moot:
We conclude that Powell’s claim for back salary remains viable even though he has been seated in the 91st Congress and thus find it unnecessary to determine whether the other issues have become moot.
17 NICS App. 22, GUYER v. JACKSON (February 2019) p. 24
Id. at 496; see also Id. at 499-500. No ongoing claim similar to Powell’s back-pay claim or otherwise remains ongoing in this case.
Further, while we decline at this time to decide whether to carve out an exception to mootness for matters that are capable of repetition yet evading review, we hold that even if such an exception were applied, it would not revive this claim. Unless an individual is removed as vice-chair shortly before an election, as was the case here, there remains sufficient time to litigate the issue before the Tribal Court.
III. Conclusion
The Trial Court’s September 25, 2018 Order denying the Defendant’s motion to dismiss is VACATED and this case is DISMISSED WITH PREJUDICE.
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.