18 NICS App. 54, KALISPEL v. BISSON (December 2020)
IN THE KALISPEL TRIBAL COURT OF APPEALS
KALISPEL INDIAN RESERVATION
USK, WASHINGTON
Kalispel Tribe of Indians, Jesse R. Aston and Jane Doe Aston, John and Jane Does 1-100, Defendants/Appellants,
v.
Michael Bisson, Plaintiff/Appellee.
NO. 2020-0002-AP-PI (December 14, 2020)
SYLLABUS*
The parties in a tort lawsuit disputed whether the tribal court correctly held that the plaintiff’s complaint and summons were timely served. Noting that the Kalispel Law and Order Code does not specify a deadline for service, the Court of Appeals held that the tribal court’s March 25, 2020 Administrative Order tolled the deadline for service of the plaintiff’s complaint, making it timely even under the strictest construction of the possible deadline for service under the Kalispel Law and Order Code.
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Before: |
Randy A. Doucet, Senior Appellate Judge; Jerry R. Ford, Appellate Judge; Lauren J. King, Appellate Judge . |
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Appearances: |
Jerald Conner Sabin and Donald J. Colistro, for Appellants; Robert M. Seines, for Appellee. |
OPINION
King, J:
I. PROCEDURAL BACKGROUND
On April 5, 2020, Appellee Michael Bisson filed a complaint against the Kalispel Tribe of Indians (“Tribe”) and other defendants, seeking damages and other relief for a car accident allegedly involving Mr. Bisson and a Kalispel Tribal Police Officer that occurred on July 16, 2019. The summons and complaint were personally served on the legal department on April 20, 2020, and were mailed certified service to the Chairman of the Business Committee, Secretary of
18 NICS App. 54, KALISPEL v. BISSON (December 2020) p. 55
the Business Committee, and the defendant police officer on the same day. The receipts for the certified mail were filed with the Tribal Court on May 11, 2020.
The Tribe filed a motion to dismiss the lawsuit on the basis that it was untimely served. The Trial Court denied the motion, holding that although “[t]here was nothing in the code that set out a specific time for someone to be served within the statute of limitations,” the plaintiff “served the parties within a reasonable time after filing.” Order Granting Plaintiff’s Motion to Stay and Denying Respondent’s Motion to Dismiss, p. 5 (7/31/2020). The Tribe appealed.
II. STANDARD OF REVIEW
Although there is no explicit standard of review in the Kalispel Law and Order Code (“KLOC”), KLOC 1-13.05 provides that, after reviewing the record and the parties’ arguments, this Court may:
• Treat the matter as a limited appeal on issues of law and/or facts;
• Conduct our own trial de novo; or
• Deny the appeal.
Based upon our review of the record and the parties’ arguments, this Court has decided to treat this matter as a limited appeal on issues of law and/or facts.
III. ANALYSIS
In this appeal, the Tribe argues that the Trial Court erred in holding that Mr. Bisson’s complaint was timely served. Because the Kalispel Law and Order Code makes the Tribe’s waiver of its immunity for tort claims contingent upon strict compliance with the Code, the Tribe contends the untimeliness of the service of the complaint renders it immune from the lawsuit.
KLOC 25-3.01 conditions the Tribe’s waiver of immunity for tort claims on strict compliance with “all the restrictions, limitations and procedures” set forth in Chapter 25. “No waiver of any kind is made beyond the scope or outside the limitations and reservations of this chapter.” Id.
The central point of contention between the parties is whether the lawsuit was timely served in accordance with KLOC 25-7.04, which requires that service of the complaint and summons be completed “within the time for service of a complaint and summons under rules generally applicable to actions filed in Tribal Court.” The rules generally applicable to actions filed in Tribal Court are located in Chapter 3 of the KLOC. See KLOC Ch. 3, “Applicability” (“This Chapter provides general provisions which shall govern all civil actions in the Kalispel Tribal Court.”). However, those rules do not specify any deadline for service of a complaint and summons.
The Tribe urges us to fill the void by imposing the same deadlines for service of the complaint and summons that Chapter 25 imposes for filing of the complaint. KLOC 25-7.03
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requires that tort actions for monetary damages be filed within 270 days of the event giving rise to the plaintiff’s injury.2 But the Code clearly contemplates a different date for service.
KLOC 25-7.04, governing service, does not state that the plaintiff has 270 days from the event giving rise to the claim to serve his complaint, as it states with respect to the filing deadline. Instead, KLOC 25-7.04 states that service must occur within the time provided in Chapter 3. Chapter 3, in turn, provides that “upon the filing of a complaint,” the Clerk must issue a summons (KLOC 3-2.01), which then must be served by a person other than the plaintiff (KLOC 3-3.02). Presumably, such actions would not (and likely could not) occur on the same day a complaint is filed. It is therefore reasonable to conclude that the Tribe intended a later deadline to apply to service.
But the Code’s silence regarding the deadline for service still proves problematic. A Tribe’s waiver of its immunity must be construed narrowly, with any ambiguities resolved in the Tribe’s favor. See Missouri River Serv., Inc. v. Omaha Tribe of Nebraska, 267 F.3d 848, 852 (8th Cir. 2001), (“if a tribe does consent to suit, any conditional limitation it imposes on that consent must be strictly construed and applied” (internal quotation and citation omitted)); Ramey Construction Co., Inc. v. Apache Tribe, 673 F.2d 315, 320 (10th Cir. 1982) (“a waiver of sovereign immunity is to be strictly construed”); Cives Corp. v. Mashantucket Pequot Tribal Nation, 3 Mash. Rep. 300, 308, 2001 WL 36036832 *6 (Mashantucket Pequot Tribal Ct. 2001) (“Waivers of sovereign immunity must be strictly construed and narrowly interpreted. . . . This court cannot by process of interpretation expand the scope of the Tribe’s limited waiver of sovereign immunity beyond that which was intended by the Tribe.”). Because the deadline for service is ambiguous at best, the Tribe would be well-served to provide clarity to all potential litigants by amending KLOC 25-7.04 or corresponding provisions in Chapter 3.
Here, even if this Court were to assume that the deadline for service under KLOC 25-7.04 is the same as the 270-day deadline for filing under KLOC 25-7.03, the complaint would still be timely as a result of the 30-day tolling period ordered by the Tribal Court in March of this year.
On March 18, 2020, the Tribe issued a Public Health Emergency Declaration declaring a state of emergency due to COVID-19. The Business Committee granted the Tribal Court emergency authority to “adopt, modify, and suspend court rules and orders, and to take further action concerning court operations as warranted to address the current state of emergency and the health and safety of the public.” See Kalispel Tribal Court Administrative Order 2020-1, p. 1 (3/25/2020), https://kalispeltribalcourt.org/wp-content/uploads/sites/13/2020/03/Administrative-Order-2020-1.pdf. On March 25, 2020, the Kalispel Tribal Court exercised this authority by issuing an Administrative Order continuing numerous types of proceedings, including “[a]ll civil matters . . . currently scheduled for court hearings” for a minimum time period of thirty days. Id. at 2.
Administrative Order 2020-1 tolls the deadlines in civil matters by 30 days. The KLOC defines “civil action” as “all court actions that do not have as their object the imposition of a criminal penalty.” See KLOC Ch. 3, “Applicability.” Civil actions include tort lawsuits: KLOC
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-2(5) defines “tort” as “a civil wrong, other than breach of contract, for which a remedy may be obtained.” Thus, Administrative Order 2020-1 tolled the deadlines for Mr. Bisson’s tort lawsuit. Even if we impose a 270-day deadline for service as the Tribe urges us to do, the deadline for the plaintiff to serve his complaint after the tolling period would be May 13, 2020. It is undisputed that service occurred before this date.
IV. CONCLUSION
Appellee’s complaint and summons were timely served as a result of Administrative Order 2020-1. We therefore affirm the Trial Court’s July 31, 2020 order.
V. COSTS
No attorney fees or any other fees or costs associated with pursuing the appeal are awarded to either party.
Ford, J., (concurring):
I concur in the result. I want to add that the Tribe should take necessary steps to clarify the issue of when service must be done in order to prevent this issue from arising again. Both the Tribe, its citizens and the public are best served by clearly written rules, especially where sovereign immunity is concerned.
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.
The deadline for filing the complaint in this case was April 13, 2020. The plaintiff timely filed his complaint on April 5, 2020.