TTT v. MCCLELLAN

22 NICS App. 13, TTT v. MCCLELLAN (August 2024)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP WASHINGTON

The Tulalip Tribes, Appellant

Melyssa McClellan, Appellee.

NO. TUL-CV-AP-2024-0247 (August 15, 2024)

(Reconsideration Denied, September 6, 2024)

SYLLABUS^*

Appellant contends trial court committed an error by issuing a deferred judgment sentencing alternative not authorized by the Tulalip Tribal Code. Court of Appeals determined trial court exceeded authority by effectively creating new legislation when it adopted code from another Tribe to impose the deferred judgment in lieu of an applicable sentencing alternative available in the Tulalip Tribal Code. Sentencing order vacated and remanded for further proceedings.

Before:	Ric Kilmer, Presiding Justice; Daniel A. Brown, Associate Justice; Michael E. Taylor, Associate Justice.
Appearances:	Brian Kilgore, Prosecutor, for Appellant; Josh Williams, for Appellee.

OPINION

Per curiam:

SUMMARY OF PROCEEDINGS

This matter is before the Tulalip Tribal Court of Appeals pursuant to a Notice of Appeal filed by Appellant, The Tulalip Tribes, on April 2, 2024, appealing the Tulalip Court’s Sentencing Order entered on February 20, 2024. (The Tribes previously sought reconsideration of that order, which was denied March 22, 2024.)

The Tulalip Tribal Code (TTC) 2.20.020(1) requires that the party appealing claim “in good faith, that the Tulalip Tribal Court made a mistake in interpreting the law or a mistake in procedure which affected the outcome of the case.” TTC 2.20.030 also requires the appealing party, in its notice of appeal, to state the reason or grounds for appeal.

22 NICS App. 13, TTT v. MCCLELLAN (August 2024) p. 14

Melyssa McClellan, Appellee, is the defendant in a criminal proceeding before the Tulalip Tribal Court (“Court”). On September 19, 2022, she was accepted by the Court into the Tribe’s Wellness Court Program, as allowed by TTC 2.25.110(2)(a)(i)(E). (Subsection (2) is the Alternative to Pleas part of the Code. Subsection (2)(a) refers to Deferred Prosecution Agreements as an alternative to entering a guilty plea.¹) On December 9, 2023, Ms. McClellan engaged in conduct that violated the Wellness Court Program’s rules. On January 23, 2024, the Court terminated her from the Program and set the matter for sentencing.

The Sentencing Hearing was conducted February 13, 2024, at which time the Court reserved its ruling. The Sentencing Order was issued a week later, on February 20. It had adopted Ms. McClellan’s recommendation, via her counsel, to utilize TTC 2.05.030(2) to incorporate a section of Puyallup Tribal law concerning deferred judgment provisions not found in the Tulalip Tribal Code: namely, Puyallup Tribal Code (PTC) 4.04.260 Rule 11.2.

On March 5, 2024, within days of entry of the Sentencing Order, the Tulalip Tribes filed a motion for the Court to reconsider that order. The Court denied the motion for reconsideration. The Tribes appealed, arguing that the Court had made a mistake interpreting Tulalip law when it concluded that: 1) there was no “applicable law” in the Tulalip Code that governed these sentencing proceedings; and 2) the Puyallup Tribal law the Court had incorporated was not “procedural,” but impermissible foreign “substantive” law.

For this appeal, we decide the issues raised by reviewing the Court record, the written briefs filed, and the parties’ oral arguments. TTC 2.20.100.

DISCUSSION

Standard of Review

TTC 2.20.090 provides the relevant standards the Court of Appeals shall use when reviewing a decision of the Tribal Court:

(1) A finding of fact by a judge shall be sustained unless clearly erroneous…

(4) A conclusion of law shall be reviewed de novo, or without deference to the Tribal Court’s determination;…

(6) A matter which is a mixture of law and fact is reviewed by the standard applicable to each element;

(7) A sentence and the imposition of fine, forfeiture, or other penalty, excluding the assessment of damages, shall be reviewed as a discretionary determination of the Trial Court;

22 NICS App. 13, TTT v. MCCLELLAN (August 2024) p. 15

(8) A matter which is within the discretion of the Tribal Court shall be sustained if it is reflected in the record that the Tribal Court exercised its discretionary authority, applied the appropriate legal standard to the facts, and did not abuse its discretion. A matter committed to the discretion of the Tribal Court shall not be subject to the substituted judgment of the Court of Appeals.

The parties disagree on the appropriate standard of review the Court of Appeals should adopt here. Appellant, the Tulalip Tribes, argues that the Court made a conclusion of law, subject to the de novo review, when it “erroneously” applied Puyallup Tribal law to these sentencing proceedings. Appellant’s Opening Brief, p. 3. Appellee, on the other hand, argues this is an appellate review of a motion for reconsideration which historically has been subject to the “manifest abuse of discretion” standard; and that sentencing matters are also reviewed as a discretionary determination of the Court.² Appellee’s Response Brief, p. 2.

Appellant, in its Notice of Appeal, specifically identified, and attached, the February 20, 2024, Sentencing Order as the order being appealed. Appellant is appealing the Court’s imposition of a deferred judgment as a sentencing option that it argues is not to be found in Tulalip law. By filing its motion for reconsideration, after the order had been issued, the Tulalip Tribes was affording the Court an opportunity to rectify what it believed was the Court’s error in misinterpreting Tulalip law and applying Puyallup Tribal law. Thus, for purposes of establishing the proper standard of review on this appeal, we conclude that we are reviewing the sentencing order, and not the later order denying the motion for reconsideration.

A court’s determination that involves a legal analysis is a “conclusion of law.” Here, the Tulalip Tribal Court engaged in a legal analysis and application of certain provisions of Tulalip law and Puyallup law—resulting in “conclusions of law” that we will review de novo pursuant to TTC 2.20.090(4).³

Appealable Final Order

Appellee argues in her Response Brief, pp. 5-6, that the sentencing order being appealed by the Tulalip Tribes is not an appealable final order allowed by TTC 2.20.020(2). She argues that it is an “unauthorized interlocutory appeal.”

Her argument is that the sentencing order/deferred judgment order is not “final,” and thus “appealable,” until Ms. McClellan either fails to comply with its terms and conditions, at which

22 NICS App. 13, TTT v. MCCLELLAN (August 2024) p. 16

time the Court will enter judgment and sentence her, or she successfully completes probation, and the Court dismisses the charges. However, based upon our opinion here, if we wait until either of those two events occur, based on the Court’s February 20, 2024, sentencing order, and then decide to vacate that order, that would impose undue hardship on everyone concerned – especially Appellee, who might then have to start all over to comply with a new sentencing order that complies with Tulalip law.

We conclude that the February 20, 2024, Sentencing Order is a “final judgment or order,” and an “order affecting a substantial right and which determines the action and prevents a judgment from which an appeal might be made.” TTC 2.20.020(2)(a) and (c). We further conclude that the order being appealed falls under TTC 2.20.020(3)(c), in that it involves an alternative sentence in a criminal case that includes provision(s) that arguably are unauthorized by law, or omits provision(s) required by law.”⁴

Finally, beyond the specific sections of the Tulalip law we quote above, we note that we have concluded in the past that sentencing orders are final orders for purposes of appeal – especially where the Court did not, as here, include any “revision opportunities” in its sentencing order/deferred judgment order, and absent explicit statutory authority to the contrary, once the time for reconsideration or appeal has passed. TTT v. Corallo, 21 NICS App. 17, 20 (Tulalip Ct. App. 2023).⁵

Timeliness of Issues Raised on Appeal

Appellee argues that the issues raised by Appellant in its notice of appeal and briefs are not properly before this Court because the Prosecutor did not object to their sentencing recommendation to the Court, during the February 13, 2024, sentencing hearing, to adopt a provision of Puyallup Tribal law. Appellant argues that this prevented the Tribes from raising this issue either in their motion for reconsideration or here on appeal. Appellee’s Response Brief, pp. 3-4. We disagree.

Appellee has failed to identify any Tulalip statute, court rule, or case law that requires the Prosecutor to object to any of defendant’s sentencing recommendations or be forever silenced. To the contrary, Tulalip law says that, during sentencing, the Prosecutor is free to make his own recommendations and/or agree not to oppose a defendant’s request or recommendations for sentencing. The Prosecutor is not required to specifically object, point-by-point, to every single sentencing recommendation made by a defendant. TTC 2.25.110(3)(a)(b).

22 NICS App. 13, TTT v. MCCLELLAN (August 2024) p. 17

At the February 13, 2024, sentencing hearing, the Prosecutor offered the Tribes’ own differing sentencing recommendations, and defense counsel countered with their recommendations. The Court took their recommendations under advisement. (See footnote 3 supra.) There was nothing for the Tribes to object, or take exception, to at that time because the Court had not yet ruled on the sentencing recommendations offered by the parties. It was only shortly before the February 20 hearing did the Tribes learn the Court has entered an order earlier that day adopting a portion of Puyallup Tribal law. The Tribes then properly, and timely, made its objection known, by filing a motion for reconsideration on March 5—only days after entry of the Sentencing Order.

That motion for reconsideration raised the primary issue on appeal here: the incorporation of Puyallup Tribal law to the sentencing proceedings here, pursuant to TTC 2.05.030(2). Defense counsel argued against this motion both in writing and orally during a March 18, 2024 hearing. By filing the motion for reconsideration, and conducting argument on it with defense counsel, the Tribes gave the Court a timely opportunity, prior to any appeal of the Sentencing Order itself, to rectify what the Tribes believed was a mistake in interpreting Tulalip law. The issues were not raised for the first time on appeal.

Finally, Tulalip Tribal law explicitly allows the Tribes to appeal a sentence in a criminal case. TTC 2.20.020(3)(c).

We therefore conclude that the issues raised by Appellant on appeal are properly, and timely, before this Court.

Adopting Puyallup Tribal Law Pursuant to TTC 2.05.030(2)

The primary issue on appeal concerns the Court’s adoption of PTC 4.04.260(d), pursuant to TTC 2.05.030(2), when determining an appropriate sentence for Appellee after she was terminated from the Wellness Court diversionary program. TTC 2.05.030(2):

Applicable Law. The Tulalip Tribal Courts shall apply the laws and ordinances of the Tulalip Tribes, including the custom laws of the Tribes, to all matters coming before the Courts; provided, that where no applicable Tulalip Tribal law, ordinance, or custom law can be found, the Courts may utilize, in the following order, the procedural laws of other Federally recognized Indian tribes, Federal statutes, Federal common law, State common law, and State statutes as guides to decisions of the Courts.

PTC 4.04.260(d) Rule 11.2:

Deferred Judgment. Also called “deferred adjudication,” may occur when a defendant has entered a plea of guilty or no contest. At the discretion of the Judge, the Court will not enter the defendant’s guilty or no contest plea, and instead must require the defendant to satisfy conditions of the deferred judgment, which must be the same or similar to the conditions set forth in subsections (b)(1)(A) through (F) of this section. When the defendant successfully completes all conditions, the Court shall dismiss the charges against the defendant and the defendant is released from

22 NICS App. 13, TTT v. MCCLELLAN (August 2024) p. 18

further obligation. If the defendant does not successfully complete all conditions of the deferred judgment, the Court shall enter judgment and sentence.

As summarized at the beginning of this Opinion, Appellee was charged with a number of criminal offenses under Tulalip law. However, rather than enter a guilty or no contest plea pursuant to TTC 2.25.010(1), on September 19, 2022, she was permitted the plea alternative, under subsection (2)(a)(i)(E), of a deferred prosecution subject to the successful completion of the Wellness Court program. Eventually she was found by the Court to have violated that program’s rules, and was terminated from the Wellness Court. With the deferred prosecution revoked, a sentencing hearing was conducted February 13, 2024.

The Court heard sentencing recommendations from the Prosecutor and defense counsel. When the Court issued its written order a week later, it had adopted a defense recommendation that it incorporate a select portion of Puyallup Tribal law regarding deferred judgments. The Court made findings of fact about the crime committed, prospects of rehabilitation, and alternatives to imprisonment, among other factors and considerations. The Court’s primary reason in adopting Puyallup’s deferred judgment law was to help Appellee avoid certain consequences of being found guilty including jeopardizing her employment and housing. It concluded that sentencing her to jail “risks everything the Wellness Court and Ms. McClellan have worked so hard to achieve.” February 20, 2024, Sentencing Order, p. 5, #4.

The Court went on to conclude, at p. 6, #5, that “the Tulalip Tribal Code is silent as to court sentencing alternatives that do not result in a conviction,” and therefore adopted PTC 4.04.260 Rule 11.2 (d) for “procedural guidance.” We disagree that the Tulalip Tribal Code is silent as to “sentencing alternatives.” TTC 2.25.110(2) allows for deferred prosecutions and stipulated orders of continuance as alternatives to pleas (and thus sentencing). But only those two alternatives. (See also TTC 2.25.010(4)(o)(ii) and (iii)). Appellee had been permitted to engage in the statutorily-defined deferred prosecution alternative, which she eventually violated. But a deferred judgment plea/sentencing alternative is not listed in the Tulalip Tribal Code. Further, had Appellee successfully completed the deferred prosecution alternative, her criminal record could have been expunged pursuant to subsection (2)(a)(iv).

We previously held that “[c]ustomary practices are on an equal plane with the other laws and ordinances of the Tribes.” In the Guardianship of E.D. and L.D., 8 NICS 74, 79 (Tulalip Ct. App. 2008), citing TTO [Tulalip Tribal Ordinance] 49.1.2.3, which was the predecessor to, and had the same text as, TTC 2.05.030(2). Id., at fn. 7. “Traditional relationships between a child and his or her biological or marriage relatives that existed before non-Indian contact could have been, but were not, incorporated into Ordinance 81.” Id.

Our conclusion is supported by a rule of interpretation often used by federal and state courts when interpreting statutes. TTO 49.1.2.3 permits use of federal and state common law in the absence of Tulalip law. Federal and state common law agree that a specific list of items in a document excludes by implication any similar item that is

22 NICS App. 13, TTT v. MCCLELLAN (August 2024) p. 19

not named. See, e.g. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), Wash. Nat. Gas Co. v. P.U.D. No. 1, 77 Wash. 2D 94, 98. [Footnote omitted.]⁶

We also note that for the plea alternatives listed in TTC 2.25.110 (b)(2), the consent of the Tribes’ representative, the Prosecutor, is required. “At any time, the Prosecutor and a defendant who has counsel or who has voluntarily waived counsel may agree to the deferral of a prosecution….” Subsection (a)(i). And a Stipulated Order of Continuance pursuant to subsection (2)(b), by its nature, requires a stipulation by the Prosecutor. The failure of the Court to obtain the explicit consent of the Prosecutor is not tantamount to consent or acquiescence.

TTC 2.25.110(2), the “Alternative to Pleas” section of the Criminal Procedures Chapter of the Tulalip Code, specify only two alternatives to the pleas listed in subsection (1): Deferred Prosecutions and Stipulated Orders of Continuance. Subsections (a) and (b). For the Deferred Prosecution alternative, in particular, both parties must consent to it and its conditions. Subsection (a)(i). Thus, the Prosecutor, as representative of the Tribes, has the right to not consent to this plea alternative. (And, assuming that its adoption of Puyallup Tribal law was legal and appropriate, the Court deprived the prosecutor of the right not to consent when it adopted only a portion of Puyallup law concerning deferred judgments, but ignored a governing section of Puyallup’s deferred judgment statute that requires the prosecutor’s consent. PTC 4.04.260(d) Rule 11.2 and its reference to the requirements of subsection (b)(1).)

In addition to Appellee, the Tulalip Tribes (that is, the Tulalip Community at large, and its legal representative in criminal proceedings—its Prosecutor) also has rights in these proceedings. See TTC 3.05.010 Purpose and Construction:

The provisions of this title shall be construed in accordance with Tribal customs as well as to achieve the following general principles and purposes: ...

(3) To prescribe penalties which are proportionate to the seriousness of the offense and which permit recognition of differing rehabilitative needs of individual offenders while at the same time recognizing the need of the entire Reservation community to protect itself from offenders; … [Emphasis added.]

22 NICS App. 13, TTT v. MCCLELLAN (August 2024) p. 20

authority to dispense justice. But the Prosecutor’s consent is explicitly required by Tulalip law. The Tulalip Court is a creation of the Board of Directors, subject to the duties, powers and limitations placed upon it by Tulalip law. Tulalip Constitution, Article VI, Section 1 K.

So, it follows, if the Tulalip Board of Directors (in its capacity as the legislative branch of the Tulalip Tribal government) could have, but did not, include deferred judgments in the list of plea alternatives in TTC 2.25.110(2), by implication they are excluded as substantive law of the Tribes.

[I]f the Tulalip Board of Directors believe that trial courts should have unfettered flexibility in changing or modifying sentences after the currently-proscribed time frames contained within the Tulalip Code or that trial courts can and should have the ability to continue issuing or modifying orders related to those matters once they are on appeal, then that Board can and should seek to implement such changes to the Tulalip Code in accordance with such policies as it deems appropriate.

TTT v. Corallo, supra at 21.

We therefore agree with Appellant that, by incorporating a plea alternative (deferred judgments) found in Puyallup Tribal law, but not in Tulalip law, the Court engaged in legislating⁷, by substituting its own judgment for that of the Board of Directors, who create Tulalip law. We, however, are obligated to respect the decision of the Tulalip legislature to exclude a deferred judgment plea alternative from Tulalip law.

Procedural v. Substantive Law

In their respective briefs, the parties disagree about whether the incorporated Puyallup Tribal law is “procedural” only, and therefore allowed to be incorporated by TTC 2.05.030(2), or is “substantive,” and thus not legally allowed. That section of Tulalip law permits the Court to utilize the laws of other federally-recognized Indian tribes, but only when both of the following legal conclusions have been made: 1) no applicable Tulalip law can be found; and 2) the foreign tribal law must be, or is limited to, the procedural law(s), excluding the substantive law(s), of the foreign federally-recognized tribal government.

Suffice it to say that substantive laws define, create, and regulate primary rights and responsibilities, including norms for societal conduct and the corresponding punishments for violations. See, e.g., State v. A.M.W., ___ Wn. App. 2d __, 545 P.3d 394, 401 (Wash. Ct. App. 2024); 21 Wn. App. 2d 100 (2022) (same). These laws determine what constitutes a legal right or obligation. In contrast, procedural laws pertain to the methods and processes used by the courts to enforce and apply substantive laws. They involve the mechanical operations of the courts that effectuate substantive law, rights, and remedies. See, e.g., Putman v. Wenatchee Valley Medical Center, P.S., 166 Wn.2d 974 (2009).

22 NICS App. 13, TTT v. MCCLELLAN (August 2024) p. 21

In this instance, Appellee argues that the lack of any provisions in the Tulalip Code of deferred sentencing, allowed the Court to treat this as a missing “procedural law” for which the Court could reach to other tribes’ procedural laws to effectuate a substantive law of the Tulalip Tribe. While, there is no question before this Appeals Court that the Court’s attempts to dispense justice to Appellee was done with the utmost concern for what was believed to be a “just” outcome, and, although there is not always a “clear line of demarcation” between that which is substantive and that which is procedural, the Puyallup tribal code section relied upon by the Tulalip Court in this matter is clearly substantive, as opposed to procedural, law.

This section of the Puyallup code, titled “Deferred Judgment,” clearly sets out the specific substantive requirements that are imposed on persons who become subject to its provisions. Criminal defendants who are entered by court order into a “Deferred Judgment” must, under penalty of re-sentencing, have no new conviction, not engage in specific conducts, participate in rehabilitation, provide restitution, perform community service, and conform to any other reasonable requirements as set out in the order.

We also conclude that it does not matter whether the “deferred judgment” section of the Puyallup code is substantive or procedural, or both, because Tulalip law applicable to plea alternatives and sentencing can be found, thereby failing the first prong of legal analysis.

The deferred judgment plea alternative simply is not included in the Tulalip Code. It is foreign to Tulalip law, as adopted by the legislative body of the Tulalip Tribes. The Tulalip Court is not free to utilize aspects of foreign codes to accomplish a substantive goal clearly set out as a part of the existing Tulalip code. The Court cannot import processes—substantive or procedural—which are not enacted into Tulalip law, under the guise of assisting the Court in its processes, especially when there is existing and applicable Tulalip law available to the Court.

While we applaud the Court for trying to assist Appellee in these proceedings, it must do so within the confines of existing Tulalip law.

Decision on Appeal

TTC 2.20.100 states, in relevant part, that the Court of Appeals may affirm, modify in whole or in part, or reverse the Trial Court decision in whole or in part, order a new trial, or “make any other ruling which disposes of the issues raised by the appeal.”

Based upon the above, it is hereby ordered that the February 20, 2024 Sentencing Order is VACATED, and this matter REMANDED back to the Tribal Court for appropriate sentencing consistent with this Opinion.

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.

In its September 19, 2022, order allowing for this statutorily-sanctioned pre-trial diversion, the Court incorrectly characterized this as a “deferred judgment probationary program.” Page 6, line 2 (emphasis added.)

Even under the “abuse of discretion” standard of review forwarded by Appellee, we could conclude that the Tribal Court abused its discretion, when deciding what non-Tulalip law to adopt and how, by not applying the “appropriate legal standard” to the facts here. TTC 2.20.090(8); In re the Custody of Boehme, 13 NICS App. 5, 10-11 (Tulalip Tribal Ct. App. 2015); TTT v. Corallo, 21 NICS App. 17, 19 (Tulalip Tribal Ct. App. 2023).

At the end of the February 13, 2024 Sentencing Hearing, the Court took the parties’ sentencing recommendations under advisement, saying that it wanted to do some legal research and make sure that what it ultimately ordered was “legally right.” Feb. 13, 2024 audio recording at ~00:33:00. It issued a written sentencing order on February 20.

A deferred judgment here, if permitted by Tulalip law, would be considered “alternative sentencing.” See Tulalip Court Rule 2.1.3 C): “Alternative Sentencing - In all criminal proceedings, the Court shall favor treatment for offenders and shall monitor the treatment to insure compliance.” But here it had been a pre-trial diversion.

The Court explicitly labeled its order a Sentencing Order, after conducting a sentencing hearing. During oral argument, Appellee argued that, despite its captioning, this wasn’t truly an appealable final sentencing order; it was a deferred judgment order. (But see footnote 1 supra.) Unlike a deferred prosecution under TTC 2.25.110(2)(a), which is an alternative to prosecution, deferred sentencing is considered a form of sentencing. See also Tulalip Court Rule 2.1.3 C).

In this 2008 guardianship case, we did not incorporate state or federal law into Tulalip law, but merely used their case law as guidance for statutory construction.

The Court further engaged in legislating by adopting and incorporating a select portion of, but not all, of PTC 4.04.260(d) [the deferred judgment provision], which requires the Court to comply with conditions of subsection (a). Subsection (a) requires the Prosecutor’s consent, among other things, but the Tulalip Court ignored that requirement.