3 NICS App. 265, Chehalis Tribe v. Jansen (December 1993)

IN THE CHEHALIS TRIBAL COURT OF APPEALS

CHEHALIS INDIAN RESERVATION

OAKVILLE, WASHINGTON

Chehalis Indian Tribe v. Jansen

No. CHE-Cr-1/93-001, 002 (December 6, 1993)

SUMMARY

Appeal by defendant of criminal conviction for rape. Appellate Court dismissed appeal on grounds that Appellant failed to appear for hearing and failed to file court-ordered brief.

FULL TEXT

Before:            Chief Justice Elbridge Coochise, Associate Justice Marguerite Edwards, and Associate Justice Mary T. Wynne.

Appearances:  James McCanna, representing Respondent, Chehalis Indian Tribe.

NATURE OF THE ACTION

Chehalis Tribal Court found Defendant guilty of rape. Defendant appealed the conviction. The appeal was continued several times, for various reasons, including to allow time for preparation for transcript, to allow appellant to retain new counsel, and to properly serve notice on Appellant. Appellant failed to appear for the hearing or contact the court clerk, file responses to Respondent's motion, or file court-ordered brief.

PER CURIAM:

THIS MATTER came before this Court on November 15, 1993, on Respondent's Motion to Dismiss Appeal, filed on October 5, 1993. Respondent, Chehalis Indian Tribe, was represented by James McCanna. The Appellant, John T. Jansen, did not appear.

The Chehalis Tribe moves this Court to dismiss this appeal on the grounds of abandonment, non-compliance with court orders and procedure, and lack of good faith in proceeding with the appeal.

3 NICS App. 265, Chehalis Tribe v. Jansen (December 1993) p. 266

The Court, having considered the brief and argument of the Respondent, reviewed the case and applicable law, and being fully advised, the Court dismisses this appeal.

PROCEDURAL BACKGROUND

The Appellant was found guilty of rape by the Chehalis Tribal Court. At the time of trial the Appellant was represented by the public defender. A Notice of Intent To File Appeal Of Judgment and Sentencing Order was filed on March 25, 1993, as well as a Notice of Appeal filed on April 19, 1993. The appeal was continued to allow time for the preparation of the lengthy trial transcript. When the Appellant's counsel was terminated because of lack of funding, another continuance was granted to allow the Appellant time to retain counsel.

On August 25, 1993, the Court of Appeals rescheduled the hearing for October 1, 1993, advised the Appellant of the right to retain new counsel, and ordered Appellant to advise the Court before September 15th of new counsel and to file an appellant brief. A Motion to Dismiss Appeal was filed on October 5, 1993, on the grounds that Appellant failed to comply with the Court's order.

A Notice of Hearing on the Motion to Dismiss was filed and served on the Respondent; however, it was not served on the Appellant. A continuance was granted and an Amended Notice of Hearing was filed on October 22, 1993, and served on the Appellant.

The Appellant did not contact opposing counsel nor the Chehalis Court clerk regarding his appearance at this hearing nor did he file any response to Respondent's motion.

I. ADEQUATE NOTICE

In the Tribal Court system, the Tribal Court clerk serves the trial and appellate courts. This facilitates efficiency and convenience for the Court and all of the parties involved, as the administrative office of the appellate courts is located some distance from Tribal court-houses. Therefore, all pleadings, motions, and memoranda of law, whether the case is at the trial or appellate level, is filed at the Tribe's Court Clerk's office and not at the offices of the Northwest Intertribal Court System, which administers the appellate courts.

The Appellant in the case at bar has not resided on the Chehalis reservation since the start of this appeal, but on the Muckleshoot Indian Reservation, some distance away from the Chehalis Indian Reservation where this case originates. The distance between these two reservations has made service of process difficult for the Court Clerk's office due to manpower and cost.

The Notice of Hearing on the Motion to Dismiss was not served on the Appellant in a timely manner and a continuance was granted for November 15, 1993. On October 22, 1993, service by certified mail on the Appellant was attempted but it was unclaimed. On November 8, 1993, the Appellant was served by personal service of the hearing to dismiss the appeal.

3 NICS App. 265, Chehalis Tribe v. Jansen (December 1993) p. 267

On November 8, 1993, the Respondent's Memorandum in Support and the Amended Notice of Hearing was personally served by the law clerk on the Appellant. Because of the lack of service by certified mail, personal service was made seven (7) days prior to the hearing. It was suspected and confirmed that the Appellant had moved from the residence without notifying the Court. The papers were left at the Appellant's current residence with the Appellant's father, a person of suitable age and discretion residing therein.

The Appellant should have contacted the court clerk regarding his change of residence and his inability to attend the hearing and/or moved for a continuance. Even though the Appellant is appearing pro se, a reasonable and prudent person would have contacted the clerk of the court.

The Court is satisfied that the Appellant was duly served, not by certified mail, but by personal service. The Appellant had adequate notice and the Court was not notified of Appellant's change in residence, nor has Appellant made any attempt to contact the Court.

The party filing a motion, pleading, memorandum of law shall serve opposing parties; it is not the responsibility of the Court. Proof of service shall also be filed with the Court.

II. CHEHALIS APPELLATE PROCEDURE

Chehalis Appellate Rule 5.08.020 requires each party to file a brief with the Chehalis Court Clerk, subject to a longer filing period at the Court's discretion. The Appellant did not file a brief by the filing deadline nor did the Appellant file a motion requesting a continuance.

This appeal was filed on April 19, 1993, and since then has been continued for seven (7) months. A continuance was granted for the transcription of the trial tapes and later for the Appellant to seek new counsel. The Appellant was also ordered to advise the Court of new counsel and to file an appellate brief by a certain date with possible dismissal of the appeal if he did not comply with the order. Attempts to contact the Appellant included contact with the attorney representing the Appellant in another jurisdiction. The attorney had not been in contact with his client but requested an extension because of possible dismissal of the appeal.

A continuance was granted and still the Appellant failed to contact the Court of his unavailability or the filing of the appellate brief. The Appellant had ample opportunity to prepare and file his brief.

Chehalis Appellate Rule 5.10.010 provides the Court discretion to revoke the party's right to participate further in the review process for failure to comply with the rules as set forth in the Title. Dismissal is well within the authority of this Court.

3 NICS App. 265, Chehalis Tribe v. Jansen (December 1993) p. 268

III. FAILURE TO PROSECUTE APPEAL

In Southern Puget Sound Intertribal Housing Authority v. Wilkins, (Nisqually, April 1991) 1990-1992 Tribal Appellate Court Opinions, p. 118, the Appellant did not appear at the appellate hearing and a default judgment was granted in favor of the Housing Authority.

In Southern Puget Sound, the court found that proper notice and effort had been made to notify appellant of the appeal hearing. A summons and complaint was served on Appellant by certified mail and claimed; however, the Appellant failed to appear. A default judgment was issued and Appellant filed his notice of appeal. The Appellant again failed to appear, this time at a hearing before the appellate court.

The majority stated that the burden is on the Appellant to "show the trial court's decision was incorrect." Id. at 119, 120. The majority reasoned that the lack of any attempt by the Appellant to proceed with the appeal rises to abandonment and dismissed the appeal on that basis alone. A failure to prosecute the appeal resulted in dismissal and the trial court was affirmed. The concurrence noted that the burden to proceed with the appeal "requires the appealing party to appear on the date set for oral argument and to educate the appellate panel as to why the trial court's decision should be reversed or modified." Id. at 120. The opinion concurred with the majority's finding that the Appellant had taken no steps to proceed with his appeal, but had the Appellant appeared, "a different result may very well have been reached." Id. at 120.

As in Southern Puget Sound, the Appellant here, despite a motion to dismiss and the notice of a hearing, as well as the extra time the Court allowed before proceeding with the hearing, failed to appear and educate this Court. The failure of the Appellant to appear constitutes a failure to proceed with the appeal.

CONCLUSION

The Appellant's absence deprived the Court of hearing the Appellant's argument opposing the motion to dismiss and demonstrates a lack of interest in the appeal's outcome. Appellant's non-compliance with previous court orders and failure to appear at the hearing leaves this Court no choice but to dismiss this appeal.

ORDER

IT IS HEREBY ORDERED that the Respondent's Motion to Dismiss Appeal is granted. The appeal is dismissed and the trial court is affirmed.