SHOALWATER BAY v. BLAIR

19 NICS App. 5, SHOALWATER BAY v. BLAIR (August 2021)

IN THE SHOALWATER BAY TRIBAL COURT OF APPEALS

SHOALWATER BAY INDIAN RESERVATION

TOKELAND, WASHINGTON

Shoalwater Bay, Petitioner/Appellee,

Amanda Blair, Respondent/Appellant.

NO. SHO-CV-AP-2019-0077 (August 20, 2021)

(Reconsideration Denied, September 20, 2021)

SYLLABUS*

A tribal housing tenant appealed trial court’s order granting motion for writ of restitution, claiming lab reports should not have been admitted as evidence and tenant had a right to go before Tribe’s Board of Commissioners prior to an eviction action. Court of Appeals found trial court errored when it permitted testimony of an individual who was unqualified to speak on the lab reports. The reports were hearsay and could not be found trustworthy as required by the Tribe’s evidence code. Without credible, trustworthy foundational evidence, there was no proof tenant violated occupancy agreement with the Tribe. Court of Appeals denied appellant’s claim of the right to first go before Board of Commissioners prior to an eviction action as there was no legal basis for the claim. Court of Appeals reversed trial court’s ruling and issued dismissal.

Before:	Randy A. Doucet, Chief Appellate Judge; Mary Finkbonner Cardoza, Appellate Judge; Patricia Davis, Appellate Judge.
Appearances:	Curtis Janhunen, Attorney for Amanda Blair, Appellant; Tim Rybka, Attorney for Housing Authority of the Shoalwater Bay Indian Tribe, Appellee.

OPINION

Per Curiam

BACKGROUND

19 NICS App. 5, SHOALWATER BAY v. BLAIR (August 2021) p. 6

Appellant Amanda Blair, a Shoalwater Bay Tribal Housing tenant, appeals an April 9, 2021, Order Granting a Motion for a Writ of Restitution issued by the Shoalwater Bay Tribal Court. This Order followed a Remanded Hearing on a Writ of Restitution previously granted by the Trial Court and appealed by the Appellant.

The Court of Appeals reversed that Trial Court decision and remanded for rehearing to allow the Appellant to have a Spokesperson representative of her own choosing. The subsequent new hearing on the Motion for Writ of Restitution by the Appellee was heard on March 12, 2021. The Shoalwater Bay Indian Tribe was represented by counsel, Mr. Tim Rybka, and the Appellant, Ms. Amanda Blair, was represented by legal counsel, Mr. Curtis Janhunen.

During the Trial, Shoalwater Bay Housing by and through its attorney, presented evidence that the tenant, Ms. Amanda Blair, had signed a valid Occupancy Agreement (Agreement) with the Tribe and in that Agreement, had agreed to the following:

“… any Drug -related criminal activities is in violation of the proceeding and shall be cause for termination of tenancy and eviction from the unit. For the purpose of this agreement, the term drug related criminal activity means the illegal possession, manufacture, sale, distribution, use or possession with intent to manufacture, sell, distribute use of a controlled substance.” (Agreement at Section X I.2.); and,

“criminal activity by tenant, household member, guest or other person under tenant’s control includes criminal activity that threatens health, safety or right to peaceful enjoyment by other residents of the neighborhood or any drug-related criminal activity” (Agreement at Section 15, paragraph 7 and at the Trial Court Transcript on pg.19-20 l.15-25,1-19).

Shoalwater Bay Housing also presented testimonial evidence through a Tribal Housing employee during the Trial that notice was given, and testing of the Appellant’s unit was conducted to determine the presence of illegal drugs (Trial Transcript pg. 31-32).

Appellee presented evidence through the same witness that samples were taken sealed and sent to a Meth Lab Clean Up company (Ibid pg.30-33). The same Housing employee witness testified as to the results of the labs analysis over the objection of Appellant’s attorney. The Trial Court Judge allowed the Housing witness to testify as to the results of the sample testing from the Meth Lab Cleanup Company lab report sent to Shoalwater Bay Tribal Housing over the continuing objection Appellants’ attorney (Ibid pg.32-36). Appellants’ attorney argued that the document could not speak for itself and that it was not an admissible document (Ibid pg.32, l. 15-19). He also stated that:

“… there is no expert witness here, there is nobody that can interpret that” (Ibid pg34, l. 19-20).

The Trial Court Judge allowed the Appellee’s witness to testify that the report from the lab indicated the samples sent in for testing from Appellant Blair’s unit showed the presence of methamphetamine based on this lab report (Ibid pg. 36, l. 9-11).

19 NICS App. 5, SHOALWATER BAY v. BLAIR (August 2021) p. 7

The Housing witness continued to testify as to a second sample testing of the Appellant’s unit taken on September 12, 2019, and the positive results from the lab report over the Appellant’s attorneys’ objection. The Trial Judge overruled the objection and allowed the results read from the lab report to come in as evidence (Ibid pg.36-38).

The documents identified as lab reports were from two different testing periods of Appellant’s unit. The results of the testing were submitted at the trial by Shoalwater Bay Housing’s attorney with the following statement:

“…the Tribe would submit these even though they are not sworn as a business record, it’s a true and correct copy as testified by the witness. He’s received many things over the time he’s been the maintenance supervisor and so they should be able to be admitted.” (Ibid pg.54, l. 6-10).

The Trial Court admitted the lab reports over the objection of Appellant’s attorney, who stated in response to the question from the Judge as to why it did not fit under the evidence code, stated the following:

“Because it’s not under oath, and it is not a business record. It is used as the basis to kick somebody out, and there is no inerrant credibility in that. It’s not interpreted for you.” (Ibid. pg. 55. L. 16-19).

Following the hearing, the Shoalwater Bay Tribal Court determined that: (1) “Tribal Housing properly conducted testing for methamphetamine on Ms. Blair’s housing unit while she was living in the unit” (Order Granting Motion for Writ of Restitution pg.3, l. 9); (2) “Ms. Blair’s housing unit tested positive for methamphetamine; (3) Tribal housing received a lab report dated September 19, from the certified testing facility, TEC Analytics, indicating that the samples taken from 17 Blackberry Lane had tested positive for methamphetamines (Ibid p.3, l.13-15); and (4) “Ms. Blair’s unit tested positive for methamphetamine a second time. The new samples taken from Ms. Blair’s unit on September 24th were analyzed by TEC Analytics and a lab report dated October 1, 2019, was provided to the Tribe. The report indicated that the interior of Ms. Blair’s housing unit was positive for methamphetamine (Ibid pg. 3, l. 18-20).

The Trial Court ruled the Court had Jurisdiction over the matter and the parties, pursuant to Shoalwater Bay Tribal Housing Ordinance Title 25 under which the Housing Authority has the authority to “terminate any lease or rental agreement or lease-purchase agreement when the tenant or, home buyer has violated the terms of such agreement or failed to meet any of its obligations thereunder or when such termination is otherwise authorized under the provisions of such agreement and to bring action for eviction against such tenant or homebuyer.” (Ibid pg. 3-4 l.22-26, l.1-2).

The Trial Court then held:

“Petitioner has proven by a preponderance of the evidence that a valid Occupancy Agreement was in effect and that Respondent violated the terms of such Agreement by engaging in or allowing another person under her control to engage

19 NICS App. 5, SHOALWATER BAY v. BLAIR (August 2021) p. 8

in drug-related criminal activity while on the premises of 17 Blackberry Lane” (Ibid pg.4, l. 2-4).

The Trial Court found the Petitioner had abided by all applicable terms of the Occupancy Agreement, and that Ms. Blair had violated the terms of her Shoalwater Bay Tenant Occupancy Agreement (Ibid pg.4, l. 14-16).

BASIS OF APPEAL

1. The lab reports should not have been admitted in evidence. They were not kept in the ordinary course of business, and the person who testified is not even employed by the Tribe. There is no one from the lab present to interpret the lab results.

2. The Appellant claims a right to first be seen by the “Board of Commissioners” as stated in the Tribal Housing Ordinance Article IV. Paragraph 1.

LAW

Under the first basis for appeal, the Appellee, Shoalwater Bay Housing, introduced evidence of the existence of drugs in the Appellants house through a Housing maintenance supervisor who worked for Shoalwater Bay Tribal Housing. The witness testified he took samples from the Appellant’s house, sent them to a Meth Lab cleanup company, and received a lab report in return, and that the Tribe regularly receives reports like this from the company. The Tribal Attorney asserts that this evidence fits within the Shoalwater Bay Tribes’ Evidence Code Rule #50 (6) (A-E).

The Shoalwater Bay Evidence Code Rule # 50 Exceptions to the Rule against Hearsay – Regardless of Whether the Declarant is Available as a Witness, states:

The following are not excluded by the rule against Hearsay, regardless of whether the declarant is available as a witness….

(6) Records of a regularly conducted activity. A record of an act, event, condition, opinion or diagnosis if:

(A) The record was made at or near the time by-or from information transmitted-by someone with knowledge.

(B) The record was kept in the course of a regularly conducted activity of a business organization, occupation or calling whether or not for profit.

(D) All these conditions are shown by the testimony of the custodian or another qualified witness, or by certification that complies with Rule 56 (1) or (2) or with a statute permitting certification; and

19 NICS App. 5, SHOALWATER BAY v. BLAIR (August 2021) p. 9

(E) The opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

All of the Rule #50 (6)(A)-(E) requirements must be met as evidenced by the conjunction, “and,” after #50(6)(D) in order for the Exception to the Rule Against Hearsay - Records of a Regularly Conducted Activity - to be admitted as evidence.

DISCUSSION

The Appellate Court finds that the evidence introduced by the Appellee to prove the existence of methamphetamine in the Appellant’s house does not fit as an exception to the Hearsay Rule within Shoalwater Bay Evidence Code Rule # 50 Exceptions to Hearsay. Without this evidence there is no further evidence of drugs within the Appellants housing unit. The Trial Court decision granting a Writ of Restitution is reversed.

The Trial transcript shows that the only witness presented by the Shoalwater Bay Housing attorney was a Housing Maintenance supervisor who worked for the Tribe. The Appellee witness introduced the lab report from the Meth Cleanup Lab and the information in the report that the samples he had taken from Appellant’s house were positive for methamphetamine. The only foundation provided after the hearsay objection by Appellant’s attorney was the witness regularly received reports like this from the lab and he was trained to read them.

Under the Shoalwater Evidence Code Rule #50, in order to meet the requirements for an exception to hearsay, the evidence must show a record of an act, event condition or diagnosis made at or near the time by or from information transmitted by someone with knowledge. The act or event in this case was the analysis of the sample sent in by the witness to determine the presence of methamphetamine. The Housing witness did not testify that the record of the lab report was made at or near the time of the analysis of the sample, or that the information from that analysis was transmitted to the report by someone with knowledge or information of the analysis of these samples. He did not testify that this lab report record was kept in the course of a regularly conducted activity of a business organization, as he did not work for the organization or have personal knowledge of that information as required by Shoalwater Tribe Evidence Code Rule # 28, Need for Personal Knowledge.

Similarly, he could not testify that making this record was made in accord with the regular practice of the activity done to analyze drug samples by the Meth lab Clean up company.

There was no testimony that all the above requirements were met by the testimony of the custodian or another qualified witness from the lab who had personal knowledge of how this record of the drug analysis was made. No evidence showed the lab report qualified under any other certification or exception.

Under Evidence Code Rule # 50 (E), the additional requirement that, “the opponent does not show that the source of information lacked trustworthiness,” is not met. Rather, the opponent,

19 NICS App. 5, SHOALWATER BAY v. BLAIR (August 2021) p. 10

Appellant’s attorney, showed the source of information from the lab report lacked trustworthiness because the witness was the maintenance supervisor who worked for Shoalwater Bay Housing - the entity trying to evict the Appellant and trying to get this information into evidence.

To be trustworthy or credible information that is accepted as evidence, a witness with personal knowledge must show that the information was obtained and kept in a trustworthy manner. In this case it had to be someone who testified from inside the organization who had the information by doing the drug analysis or having that information to make the lab report, not someone who merely sent it in and received the report back. The witness had to be someone in the lab who was credible and could testify about their own process of record keeping and preserving information. Without this foundation the document was hearsay and could not be found to be trustworthy as required by Evidence Rule #50. The document was objected to by the opponent who stated the document could not speak for itself as it was not established as trustworthy.

The Tribal Housing attorney did not have a witness to testify to the information in the lab report. When it was testified to by someone not qualified to do so, it was objected to, overruled by the Trial Judge and accepted into evidence. It was a legal error to do so. The lab report should not have been admitted.

Without credible, trustworthy foundational evidence, there is no proof that there was methamphetamine in the Appellant’s house.

Under the second Basis for Appeal by the Appellant:

2. The Appellant claims a right to first be seen by the “Board of Commissioners” as stated in the Tribal Housing Ordinance Article IV paragraph 1.

Appellant refers to the Shoalwater Bay Housing Ordinance Article IV Paragraph 1a. (1):

“The affairs of the Authority shall be managed by a Board of Commissioners composed of five people.” Paragraph (2) states “The Board members shall be appointed and reappointed by Tribal Council…”.

Article V Powers 2. Provides:

“The Tribal Council hereby gives its consent, irrevocable except by amendment to this ordinance, to allowing the Authority in its corporate name, to sue in courts of competent jurisdiction and to be sued in courts of competent jurisdiction upon any contract, claim or obligation arising out of its activities…”.

Paragraph 3. Provides;

The Authority shall have the following powers which it may exercise consistent with the purposes for which it is established.

19 NICS App. 5, SHOALWATER BAY v. BLAIR (August 2021) p. 11

(j) With respect to any dwellings, accommodations, lands or facilities…to lease or rent, … to make rules and regulations…concerning the occupancy, rental, care and management of housing units … and to make such further rules and regulations as the Board may deem necessary and desirable to effectuate the powers granted by this ordinance.

(l) To terminate any lease or rental agreement … when the tenant … has violated the terms of such agreement, or failed to meet any of its obligations thereunder, or when such termination is authorized by the provisions of such agreement; and to bring action for eviction against such tenant…”.

DISCUSSION

Under Title 25, which was cited by the Appellant, there is no authority provided to be first seen by the “Board of Commissioners” as established by Tribal Ordinance. The Board of Commissioners is appointed by Tribal Council, given the Authority to sue and be sued in a Court of competent jurisdiction and given enumerated powers.

As applied to this case, the Housing Ordinance provides the Board of Commissioners, under paragraphs (j) and (l), the power to lease or rent dwellings and the power to make rules concerning their occupancy, care and management and others they deem necessary to fulfill their purpose. They are also given the power to terminate the rental or lease agreement when the tenant has violated the terms of the agreement or when it is authorized by the provisions of such agreement and to bring an action for eviction.

In this case the Agreement the Appellant signed authorized the provisions to allow an eviction action to proceed, should there be violations of terms as alleged by the Appellee. There is no provision allowing the Appellant to “first go before the Board of Commissioners” (Appellant’s Brief) prior to an eviction action.

Appellant’s claim for appeal on these grounds does not have a legal basis under the Shoalwater Housing Code Title 25 and has no merit. The claim is denied.

CONCLUSION

The Trial Courts’ decision to grant a Writ of Restitution against the Appellant is hereby reversed. The case 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.