4 NICS App. 8, LOPEZ v. CHEHALIS TRIBE (September 1995)
IN THE CHEHALIS TRIBAL COURT OF APPEALS
CHEHALIS INDIAN RESERVATION
OAKVILLE, WASHINGTON
Ray Lopez, Appellant
v.
Chehalis Tribe, Respondent
No. CHE-EX-1/95-008 (September 19, 1995)
SUMMARY
Appeal from trial court order of exclusion. Although statute of limitations would have barred Tribe from prosecuting Appellant for alleged crimes underlying exclusion proceedings, it is not a rule of evidence and does not affect the admissibility of evidence with regard to an exclusion proceeding. Finding no error in trial court’s assessment of witness testimony or its failure to exclude, sua sponte, certain witnesses, and finding that the Tribe is not collaterally estopped from pursuing this matter, we affirm.
FULL TEXT
Before: Elbridge Coochise, Chief Justice; Dennis L. Nelson, Justice; Mary T. Wynne, Justice.
Appearances: Ray Lopez, Appellant; James Ascher, attorney for Appellant; Harold Chesnin, attorney for Respondent Chehalis Tribe.
This matter came before the Chehalis Tribal Court of Appeals for hearing on July 24, 1995, pursuant to Appellant’s notice of appeal filed on April 11, 1995. Pursuant to the Chehalis Appellate Rules, § 5.05.020, Appellant appeals from the April 5, 1995 Order denying his appeal of a March 20, 1995 Exclusion Order.
I. BACKGROUND
On January 22, 1995 Respondent/Plaintiff Chehalis Indian Tribe filed a Petition for Exclusion against Appellant/Defendant Ray Lopez. The petition alleged that Appellant, who is not a member of the Chehalis Indian Tribe, should be excluded from the Chehalis reservation pursuant to the Chehalis Code of Laws, § 8.03.010 (governing exclusion) for drug-related offenses (§ 4.09.040), telephone abuse (§ 4.05.150), and intimidating (§ 4.06.140).1
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An exclusion hearing was scheduled for February 6, 1995. Upon Appellant’s motion for continuance, the hearing was continued to and held on March 6, 1995. At the hearing, the Chehalis Tribal court found that although Appellant is married to a Tribal member, he himself is not a member of the Chehalis Indian Tribe.
Based upon the testimony of several witnesses, the trial court entered an Order of Exclusion against Appellant on grounds that he violated Chehalis Tribal Code, §§ 8.03.010 (a) and (b) by selling drugs and assisting others in selling drugs to Tribal members on the reservation. The trial court further found that exclusion of Mr. Lopez was necessary to protect the health, safety or welfare of the Chehalis Indian community.
Appellant filed his notice of appeal from the March 6, 1995 decision on April 3, 1995, citing as the basis of his appeal insufficient evidence and witness bias. On April 5, 1995, Appellant’s attorney filed a motion to stay the exclusion order. This Court, by order dated April 5, 1995 and filed on April 6, 1995, denied Appellant’s appeal for failure to meet certain requirements of Chehalis Appellate Rules, §§ 5.04.030 and 5.05.010.
Also on April 6, 1995, Appellant’s attorney filed a perfected appeal. On April 7, 1995, this Court granted Appellant’s motion to stay the exclusion order until April 11, 1995, to allow Appellant time to file a written request that the full three-judge panel reconsider the April 6, 1995 denial. Appellant filed a second notice of appeal on April 11, 1995. This Court accepted the appeal on April 20, 1995, and vacated the April 5, 1995 Order Denying Appeal.
II. ISSUES ON APPEAL
The issues on appeal in this case are:
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(1) Was Respondent’s evidence, which consisted largely of witness testimony regarding Appellant’s activities occurring over a year prior to the filing of the exclusion action, precluded by a lapsing of the statue of limitations?
(2) Was the Trial Court’s conclusion that Appellant’s removal or exclusion was necessary to protect the health, safety or welfare of the community sufficiently supported by the evidence presented?
(3) Does the Trial Court’s failure to exclude, on its own initiative, the Tribe’s witnesses from the courtroom during pre-trial motions constitute reversible error?
(4) Is the Tribe collaterally estopped from pursuing this matter because of a previous administrative finding that there was insufficient evidence to remove Appellant from tribal housing?
III. STANDARD OF REVIEW
Section 8.04.070(b) of the Chehalis Exclusion Code provides that the Court may exclude a non-tribal member from the reservation if, based on the evidence presented, the Court is “reasonably certain . . . . removal or exclusion is necessary to protect the health, safety, or welfare of the community.”
Appellant argues that while this standard of proof clearly is lower than “beyond a reasonable doubt” as required in a criminal context, it requires a greater showing than the civil standard of “preponderance of the evidence”. Respondent, on the other hand, contends that the “reasonably certain” standard for exclusion is a lower standard of proof than either the criminal or civil standard.
“Preponderance of the evidence” means such evidence which, when weighed against that opposed to it, has the more convincing force that something is more likely than not. Hopkins v. Price Waterhouse, 737 F. Supp 1202 (D.D.C. 1990), aff’d. 920 F.2d 967.2
This Court previously addressed this issue on March 17, 1994, in Chehalis Indian Tribe v. Charles, 3 NICS App. 292 (Chehalis 1994). In Charles, also an exclusion case, this Court struggled
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with the “reasonable certainty” standard of proof, which is not defined in the Chehalis Law and Order Code.
Relying upon established principles of law, this Court found that “reasonable certainty” is “arguably a greater standard of proof than ‘preponderance. . . .’” Id. at 293.3 We agree that “reasonable certainty” is a greater standard of proof than “preponderance.”
Section 8.04.070 also requires, however, that the trial court’s reasonable certainty be “based on the evidence presented.” As we will discuss in the following sections, we find that the Tribe has met its burden regardless of the requisite degree of proof.
IV. DISCUSSION
Title 8 of the Chehalis Code of Laws permits the trial court to remove or exclude a non-member from tribal territory if, based on the evidence presented, the court is reasonably certain that two conditions have been met: (1) Defendant has committed an act or omission which falls within one or more grounds for exclusion (listed in § 8.03.010); and (2) Removal or exclusion is necessary to protect the health, safety, or welfare of the community.
Appellant alleges that the trial court was barred by the statute of limitations from hearing the evidence the Tribe offered to establish the first condition. Appellant further alleges that the Tribe failed to either address or establish the second condition -- that removal or exclusion was necessary to protect the health, safety, or welfare of the community.
In the discussion that follows, this Court finds that the evidence is sufficient to support that the trial court applied a two-tiered analysis and determined that the conditions for excluding Appellant had been met.
A. Statute of Limitations
The Chehalis Tribal Code provides for a one-year statute of limitations for criminal matters4 and a three-year statute of limitations for civil matters.5 The exclusion code does not contain a
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statute of limitations provision.
Appellant argues that since the trial court apparently based its order of exclusion on evidence that established violations of criminal law, the one-year criminal statute of limitations should apply. Most of the Tribe’s witnesses, however, testified to alleged offenses which had occurred more than a year prior to filing of the Petition for Exclusion. Appellant contends that the trial court was barred from considering any testimony regarding alleged offenses falling outside the one-year statute of limitations. We disagree.
The criminal statute of limitations bars prosecution of an offense committed more than a year prior to filing of a complaint. Neither the criminal nor the civil statute of limitations are rules of evidence; therefore, they are not relevant as to the admissibility of Respondent’s evidence.
The Tribe could not have properly brought a criminal complaint against Appellant for any offenses he allegedly committed more than a year prior to the filing of the complaint. If the Tribe were to file an untimely complaint, the trial court would have no jurisdiction to hear it. Nevertheless, the Exclusion Code expressly allows removal or exclusion of an individual who violated the Tribe’s criminal or civil laws, “whether or not the Tribe has jurisdiction to prosecute the person for the act.” Chehalis Code of Laws, § 8.03.010(a). Thus, even though the Tribe could not have prosecuted Appellant for many of the alleged offenses to which the Tribe’s witnesses testified, the court was entitled to hear and weigh the testimony as evidence in the exclusion hearing.
Statute of limitations is an affirmative defense and its elements must be proved by the party asserting it.6 Appellant has failed to meet his burden. This Court will not on this basis reverse the trial court.
B. Witness testimony
Appellant alleges that, for various reasons, the testimony of Respondent Tribe’s witnesses was insufficient to support the trial court’s finding that removal of Appellant was necessary to protect the health, safety, or welfare of the community.
During trial, the Court heard testimony from seven witnesses for the Tribe and three witnesses for Appellant, including testimony from Appellant himself. The trial court’s function is to determine the credibility and veracity of testimony.7
Among the testimony heard and weighed by the trial court was testimony from one witness
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that he had purchased marijuana and cocaine from Appellant at Appellant’s house, in varying amounts and on over twenty occasions.
The trial court heard testimony from another witness regarding the numerous occasions on which she had purchased marijuana from Appellant, and the fact that she used him as a source to begin dealing drugs herself.
A third witness testified that she also frequently purchased drugs from Appellant. She and another witness testified to the heavy traffic to and from Appellant’s house at all hours of the day and night. Two other individuals testified that as recently as June and July of 1994, Appellant used and sold marijuana on the reservation.
Appellant himself testified that because of his involvement in sports, he has a great deal of contact with youth who live on or come to the reservation.
Based on the evidence presented, the trial court found that removal or exclusion of Appellant “is necessary to protect the health, safety, or welfare of the community.”
The trial court is in the best position to assess the credibility of witnesses.8 As the trier of fact, it is the province of the trial court to hear and weigh all evidence before it and to make strong reasonable inferences from that evidence.9
Therefore, this Court declines Appellant’s invitation to second-guess the trial court. We defer to the trial court’s findings that exclusion of Appellant was necessary to protect the health, safety or welfare of the Chehalis community. We will not usurp the trial court’s role as trier of fact and will not overturn the trial court on the basis of witness credibility.
C. Failure to Exclude Witnesses
Prior to the commencement of trial, the trial court entertained pre-trial motions on the issues of expected testimony, impeachment, and the calling of witnesses. Witnesses for both Appellant and Respondent were present in the courtroom while these motions were being argued.
Appellant contends that the trial court had a responsibility to exclude the witnesses from the courtroom during the pre-trial proceedings and that the court’s failure to do so was severely prejudicial to the Appellant.
The appropriate place to raise this concern is before the trial court. Appellant did not request
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that the trial court exclude the witnesses from the courtroom and the trial court’s failure to do so on its own initiative does not constitute reversible error. This Court accordingly declines to overturn the trial court on this ground.
D. Collateral Estoppel
Appellant argues that the Tribe is collaterally estopped from pursuing this matter because of a prior determination by a tribunal in a housing matter that the Tribe had presented insufficient evidence to warrant removal of Appellant from tribal housing. In the absence of tribal authority, we look to relevant state law for guidance. In order for collateral estoppel to apply, four requirements must be met:
(1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party prior to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied.
Manor v. Nestle Food, 78 Wn. App. 5, 12 (1995), citing Malland v. Department of Retirement Sys., 103 Wn.2d 484, 489; 694 P.2d 16 (1985).
Appellant alleges that at a previous administrative hearing, a tribunal found that testimony of the Tribe’s witnesses was insufficient evidence to remove Appellant from tribal housing. Appellant argues that because many of the same witnesses who testified against him a the exclusion hearing offered similar testimony at the housing hearing, the exclusion matter is estopped. We disagree for two reasons.
First, Appellant has offered no evidence in support of his arguments. There is no transcript, written finding, or any other document from the earlier administrative hearing in the record before us.
Second, Appellant has not shown that he has met all four criteria for the application of collateral estoppel. Where an issue arises in two entirely different contexts, there is no identity of issues to satisfy the requirements of collateral estoppel. McDaniels v. Carlson, 108 Wn.2d 299, 305 (1987). The earlier hearing was a housing action, presumably brought pursuant to the Housing Code. This case is an exclusion action, brought pursuant to the Exclusion Code. The elements to be alleged and proven in order to remove an individual from Tribal housing under the Housing Code are not the same as the elements to be alleged and proven in order to exclude an individual from Tribal territory.
The burden of proof rests with the party asserting estoppel.10 Appellant has failed to establish
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that he has met the four requirements of collateral estoppel and has failed to meet his burden. This Court finds no evidence in the record that collateral estoppel should apply.
V. SOVEREIGN POWERS
This Court is well aware that exclusion of a non-tribal member who is married to a Tribal member will have a significant impact on the excluded individual’s spouse and children. Nevertheless, we are equally cognizant of the necessity of preserving the Tribe’s sovereign powers, not the least important of which is the Tribe’s power to exclude.
Although the enactment of a statute of limitations is a legislative function, not a judicial function, it is the duty of the Court to interpret such an enactment and to facilitate the effective administration of justice. For these reasons, the Court notes that a statute of limitations should be enacted for exclusion cases. Furthermore, such a statute of limitations should require a petitioner to demonstrate that a nexus exists between past and current actions of the defendant and the safety of the community.
VI. ORDER
Therefore, based on the foregoing, it is hereby ordered that the trial court’s Order of Exclusion, dated March 20, 1995, is affirmed.
Appellant, Ray Lopez, shall remove himself from the Chehalis Indian Reservation no later than September 29, 1995. Appellant may return to the Chehalis Indian Reservation only upon order of the Chehalis Tribal Court.
Chehalis Code of Laws, § 8.03.010 lists the various grounds for exclusion/removal of a non-member. That section states in pertinent part:
Any person subject to this title may be removed and excluded from the territorial jurisdiction of the Chehalis Tribe for any of the following reasons:
a) Committing an act which violates the criminal or civil laws of the Chehalis Tribe, whether or not the Tribe has jurisdiction to prosecute the person for the act.
b) Any act which violates the criminal laws of the State of Washington or of the United States of America, whether or not the person may be prosecuted by the State or United States.
. . . .
p) Repeated harassment of members of the Chehalis Indian Tribe, tribal officials, tribal employees, or persons who are on contract with the Tribe.
. . .
s) Repeated breaches of the peace including but not limited to those breaches of the peace committed while under the influence of alcohol or drugs.
We are aware of no case law that compares the “preponderance” standard with the “reasonably certain” standard; however, we find instructive the following:
Degree of proof in civil actions is lighter than that required in criminal proceedings. In ordinary civil actions, “preponderance of the evidence” is the standard. Under this rule, a party is not required to prove his case “beyond doubt,” “ . . . beyond a reasonable doubt,” “beyond question,” or “conclusively,” nor is such a party required to prove his case “to a certainty,” or a “moral,” “reasonable,” or absolute certainty . . . . [Emphasis added].
32A C.J.S. Evidence § 1020 at 643-644. “Reasonably certain,” then, is a higher degree of proof than “preponderance of the evidence.”
We found in Charles that the Tribe had presented no evidence to the trial court; therefore, there was no valid basis for excluding the defendant.
No complaint shall be filed charging a person with a criminal offense unless the offense has been committed within a one year period prior to the date of filing, except, there shall be no time limits for filing complaints based on incest in either criminal or civil proceedings. Che. Trib. Code, § 2.2.07.
No civil action may be commenced in the Chehalis Tribe unless the cause of action arose within a three year period preceding the filing of the complaint. The three year period shall be counted from the date on which the event giving rise to the lawsuit was first known to the complaining party or should have been known through reasonable diligence. Provided, however, that this section shall not apply to claims brought by the Chehalis Nation.
See, e.g., Henderson v. Pennwalt Corp., 41 Wn. App. 547, 704 P.2d 1256 (1985); Brougham v. Swarva, 34 Wn. App. 68, 661 P.2d 138 (1983).
See, e.g., Willener v. Sweeting, 107 Wn.2d 388, 730 P.2d 45 (1986); Ulberry v. Seattle Bonded, Inc., 28 Wn. App. 762, 626 P.2d 522 (1981); Kintz v. Read, 28 Wn. App. 731, 626 P.2d 52 (1981).
See, e.g., Willener, 107 Wn.2d 388 (1986); Ulberry, 28 Wn. App. 762 (1981).
See, e.g., Emrich v. Connell, 41 Wn. App. 612, 705 P.2d 288 (1985); Harding v. Warren, 30 Wn. App. 848, 639 P.2d 750 (1982).
See, e.g., McDaniels, 108 Wn.2d at 303; Alaska Marine Trucking v. Carnation Co., 30 Wn. App. 144 (1981), cert. denied, 456 U.S. 964, 102 S. Ct. 2045 (1982).