4 NICS App. 99, LOWER ELWHA v. ELOFSON (August 1996)

IN THE LOWER ELWHA KLALLAM TRIBAL COURT OF APPEALS

    LOWER ELWHA INDIAN RESERVATION

    PORT ANGELES, WASHINGTON

Lower Elwha Klallam Tribe, a/k/a/ Elwha S’Klallam Indian Tribe; Lower Elwha Tribal Council; Frances G. Charles, individually and as a member of Lower Elwha Tribal Council; Beverly J. Bennett; individually and as a member of Lower Elwha Tribal Council; Alfred B. Charles, Sr., individually and as a member of Lower Elwha Tribal Council, Appellants

    v.

Carla J. Elofson; Suzanne Drum; Robert Elofson; Lindley Walker; Patricia Elofson; Phyllis Sampson; and Lois A. Albaugh, Respondents

    No. LOW-Ci-4/94-017 (August 27, 1996)

FULL TEXT

Before:            Lorintha Warwick, Chief Justice; Larry King, Justice; and Colin Kippen, Justice.

King, J., writing for an unanimous panel:

NATURE OF ACTION

The thrust of plaintiffs’ complaint is for wrongful termination of employment. One plaintiff also complained of being illegally recalled from office. The defendants, the Lower Elwha Klallam Tribe and certain tribal members, counterclaimed against one of the plaintiffs, alleging theft.

Defendants now appeal from the tribal court judgment, which awarded monetary damages and attorney’s fees, denied the counterclaim, and extended jurisdiction.

HOLDING

We affirm in part, reverse in part, and remand for further proceedings regarding the issue of damages for emotional distress.

BACKGROUND

This action was originally commenced in U.S. District Court for the Western District of Washington. Before proceeding on the merits, however, the Tribe consented to allow the Lower Elwha Tribal Court to hear the matter. This one time grant of jurisdiction was accomplished by passing Elwha Tribal Council Resolution No. 09-94 which, in relevant part, reads as follows:

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BE IT FURTHER RESOLVED that the Lower Elwha Klallam Tribe hereby permits said action to proceed in the Lower Elwha Tribal Court despite the provisions of Article I, Section 4 (B) (1) of the Lower Elwha Court Procedures Ordinances; and Article I, Section 4 (b) (1) of that Court procedures Ordinance is hereby amended, for this case only, to permit this action to proceed in the Lower Elwha Tribal Court.

BE IT FURTHER RESOLVED that except as expressly set forth in this resolution, the Lower Elwha Klallam Tribe and Lower Elwha Tribal Business Committee does not waive its sovereign immunity.

The referenced Court Procedures Ordinance reads as follows:

The Tribal Court shall not have the power to declare actions of the Tribal or General Council to be contrary to the Tribal Constitution, or determine the power, authority or legality of actions of the Tribal or General Council.

By waiving immunity in the instant case, the Tribe allowed plaintiffs to proceed in a forum that otherwise would have been closed to them. This is so because plaintiffs’ complaint includes the Tribe as a defendant and is directly related to a March 23, 1993 Tribal Council action that resulted in termination of their employment.

On April 18, 1995, the trial commenced before Tribal Judge Susan J. Owen. After three days of testimony from 14 witnesses and admission of 135 exhibits, Judge Owen awarded damages to Plaintiffs, Patricia Elofsen, Suzanne Drum, Carla Elofsen, and Lindley Walker for wrongful discharge and found that former Chairperson Carla Elofsen had been invalidly recalled. This Court will limit its recital of facts to certain issues as they are laid out below:

I.         SHOULD THE TRIBAL COURT’S DECISION BE REVERSED ON PROCEDURAL OR JURISDICTIONAL GROUNDS?

A.        DID THE STATUTE OF LIMITATIONS RUN ON PLAINTIFFS’ ACTION?

Lower Elwha’s Rule of Civil Procedure V(A) imposes a one-year statute of limitations on civil actions. Therefore, construed in the light most favorable to the defendants, plaintiffs had one year from March 23, 1993, to commence a lawsuit. This action was filed in Federal Court on November 10, 1993. Resolution No. 09-94, dated February 22, 1994, allowed removal of the action from Federal to Tribal Court. The case was filed in Tribal Court on April 29, 1994, less than three (3) months after the resolution. Resolution No. 09-94 served as a waiver of Rule V(A) by the Tribe. Therefore, plaintiffs, who acted in a timely fashion under any logical theory, are not barred by the applicable statute of limitations.

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B.        DID RESOLUTION NO. 09-94 GRANT THE TRIBAL COURT AUTHORITY TO AWARD GENERAL MONETARY DAMAGES?

Resolution No. 09-94 in plain and simple language states that the Court Procedure Ordinance (which normally prohibits such actions) “is hereby amended, for this case only, to permit this action to proceed in the Lower Elwha Tribal Court.” Despite the waiver, the Tribe argues that it is somehow still immune from an award of general damages.

Rule (2) (1) (L) of the Lower Elwha Tribe Court Procedures states that the Tribal Court has the “power to use reasonable means to protect and carry out its jurisdiction.” Nowhere does the ordinance prohibit the award of damages. This remedy is frequently available to other courts, including the Federal Court where this action was initially filed. Plaintiffs no doubt relied on Resolution No. 09-94 before moving to dismiss its case in a court that had the power to award damages. It was reasonable for the plaintiffs in this case to expect an award of monetary damages if they prevailed.

If the Tribe wanted to exclude the possibility of monetary damages, it should have done so in its Resolution. The Tribe chose not to limit its waiver before trial and, having lost, it will not now convince this Court to act in derogation of the reasonable expectation of the parties. The award of general monetary damages will not be overturned on jurisdictional grounds.

This is a unique situation; therefore, we want to be clear that our ruling in the instant case should not be regarded as an attack on the general doctrines of self-governance and sovereign immunity, which are an integral part of many tribal codes.

II.         DID THE PLAINTIFFS PRESENT SUFFICIENT EVIDENCE FOR THE TRIBAL COURT TO FIND THE TRIBE LIABLE AND TO AWARD GENERAL MONETARY DAMAGES?

A.        WHAT IS THE BURDEN OF PROOF IN A CIVIL CASE BEFORE THE LOWER ELWHA COURT?

In order to address this issue on appeal, we must refer to rules of statutory construction:

“Absent a contrary legislative intent, a court construes statutory language in accordance with its plain and ordinary meaning. A court may use a dictionary to determine the plain and ordinary meaning of a statutory terms.” Flanigan v. Labor & Industries, 123 Wn.2d 418, 426 (1994) (citing In re Estate of Little, 106 Wn.2d 269 (1986)). See, also, State v. Fjermestad, 114 Wn.2d    828, 835 (1990) (using dictionary to define “any information”).

“Unambiguous words within a statute which are not defined therein should

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be given their ordinary meaning, which may be determined by reference to such extrinsic aids as dictionaries.” Brenner v. Leake, 46 Wn. App. 852, 855 (1987) (citing Garrison v. State Nursing Bd., 87 Wn.2d 195 (1976)).

The Lower Elwha Court Rules of Civil Procedures (§ I (2)) defines the burden of proof for the instant civil case:

Unless otherwise provided in the applicable ordinance, a party shall be considered to have met the burden of proof if most of the evidence presented tends to prove that party’s claim. (Emphasis added).

There are no exceptions applicable within the Court Procedures Ordinance of which the Rules of Civil Procedure are a part; nor is the word “most” defined. This Court therefore turns to Webster’s Dictionary for a definition: “most” means “greatest in quantity, amount, measure, degree or number.” This definition appears to be similar to the definition of “preponderance,” a well-recognized legal term of art in anglo jurisprudence: “greater number, weight, influence.” For definitional purposes, “most of the evidence” is synonymous with “preponderance of the evidence.” Therefore, the Tribe’s argument that the burden of proof in a civil trial at the Lower Elwha Court is more than a preponderance falls on deaf ears.

The applicable definition of the burden of proof is clear and readily understandable in this case. We therefore decline to switch to “preponderance,” which is merely a less-understood synonym for “most.”

B.        WHAT IS THE STANDARD OF REVIEW EMPLOYED BY THIS APPELLATE COURT?

In reviewing on appeal whether the trial court erred in awarding general monetary damages, we recognize the following well-established law:

“An appellate court cannot substitute its judgement for that of the trial court in resolving factual issues.” Kunkel v. Meridian Oil, 114 Wn.2d 896, 903 (1990).

“A finding will not be disturbed on appeal if supported by substantial evidence.” Perez Trucking v. Ryder Trucks, 76 Wn. App. 223 (1994) (citing Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570 (1959).

Given the fact that the Lower Elwha Court Procedures Act is silent on the issue of the standard of review, we hereby adopt the “substantial evidence” test. In so doing, we follow the lead of Justice Irvin in Hoopa Valley Indian Housing Authority v. Gerstner, 3 NICS App. 250, 263 (Hoopa 1993). See, also, Ames v. Hoopa Valley, No. C-90-026 (1991). What then is “substantial

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evidence”?

In Freeburg v. Seattle, 71 Wn. App. 367 (1993), a Washington State appellate court has defined “substantial evidence” as follows:

“Substantial evidence” is defined as “evidence which would convince an unprejudiced, thinking mind of the truth of the declared premise: Nord v. Shoreline Sav. Ass’n., 116 Wn.2d 477, 486, 805 P.2d 800 (1991) (citing Cowsert v. Crowley Maritime Corp., 101 Wn.2d 402, 405, 680 P.2d 46 (1984)). This factual review is deferential, and requires us to view the evidence and the reasonable inferences therefrom in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority, a process that necessarily entails acceptance of the fact-finder’s views regarding the credibility of witnesses and weight to be given reasonable but competing inferences. Freeburg, 71 Wn. App. at 371.

Under this definition, “substantial evidence” does not anticipate “all” or “nearly all.” In fact, it allows for equally strong and compelling evidence and thus does not even come up to the standard of “most,” “preponderance,” or “majority.”

Given the above analysis, the finding of liability and the award of general monetary damages by the Tribal Court in this case is certainly well-substantiated and therefore will not be disturbed on appeal.

III.        DID THE PLAINTIFFS PRESENT SUFFICIENT EVIDENCE IN THE TRIBAL COURT TO SUSTAIN THE AWARD OF SPECIAL DAMAGES FOR EMOTIONAL DISTRESS?

As stated above, the record in this case clearly substantiates Judge Owen’s findings that the plaintiffs were wrongfully terminated and that they therefore suffered general damages in the form of lost wages.

Defendants also have asked this court to overturn the Tribal Court’s award of special damages for emotional distress.

The Washington Supreme Court held in Cable v. Burns and Roe, 106 Wn.2d 911, 921 (1986) that:

. . . once having established liability for the tort of wrongful termination of employment in violation of public policy, an employee is entitled to recover damages for emotional distress upon a showing of actual anguish or emotional distress. [Emphasis added].

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The amount allowed must be fair and reasonable, free from sentimental or fanciful standards, and based upon facts disclosed. 22 AM. JUR.2D.

Under the “substantial evidence” test, the fact-finder’s decision should not be disturbed if it is supported by some degree of credible evidence. However, a close review of the record in this case demonstrates a dearth of evidence demonstrating special emotional damages. There is no expert testimony and no doctor’s reports. We are not suggesting these are required but something more is needed than, “I’ve been very depressed,” “my self-esteem was really bad,” “I was extremely upset,” or “this case caused a lot of distress.” And although one can possibly assume that each plaintiff suffered emotional trauma, there is insufficient substantiating evidence on the record to sustain this part of    the Tribal Court’s award.

It is instructive to note that each individual plaintiff was awarded the same exact amount ($10,000) for emotional trauma. Judge Owen, in her memorandum opinion, indicates that “the Court does not wish to punish the Tribe.” Despite this, the $10,000 awards could easily be translated as “punishment.” There is no specific allowance for the award of punitive damages in the Lower Elwha Ordinance. Regardless of this fact, we leave for another day the definition of punitive damages or whether they are even allowable without specific statutory authority. For now, we remand the issue of emotional damages back to the Tribal Court to search for a more traditional remedy, hoping one can be found in the spirit of healing, without resort to the adversarial process.

IV.        DID THE TRIBAL COURT PROPERLY REJECT THE TRIBE’S COUNTERCLAIM?

The Tribe counterclaimed against Plaintiff Lindley Walker for theft of tribal property. The Tribe’s evidence consisted of testimony that, shortly after Mr. Walker’s employment was terminated, computer tapes were no longer in the computer previously assigned to him. No other evidence was offered. The Tribal Court reasonably found that these circumstances did not necessarily point the finger at Mr. Walker and therefore no error was committed when it denied the counterclaim.

V.         DID THE TRIBAL COURT ERR WHEN IT AWARDED ATTORNEY’S FEES TO THE PLAINTIFFS?

The Lower Elwha Court Procedures Ordinance provides as follows:

J.    Costs

        1.    Upon judgment, the judge shall order the losing party to pay the prevailing party the costs of the lawsuit or prosecution, unless the applicable ordinance provides otherwise or the judge determines that such an order would be unjust. Costs shall not be imposed on the Lower Elwha Tribe or any branch of the tribe

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unless specifically permitted by an applicable tribal law or agreement.

        2.    Costs shall include, but not be limited to, civil filing fees, postage for court notices sent to the parties, fees and expenses paid to witnesses and jurors, fees and expenses incurred in the reproduction and delivery of copies of pleadings to other parties other than the original summons. Costs shall not include attorney’s fees.

Lower Elwha Court Procedures Ordinance at p. 8, § 2 (1), Administrative Rules, subsection J (1,2) (emphasis added).

Without a specific prohibition, the award of attorney’s fees is permissible and discretionary. Siddle v. Young Berry, No. 83-1327, Appl. Div., Puyallup Tribal Court (1989). See, also, Cross v. Turnipseed, No. 90-1947, Appl. Div., Puyallup Tribal Court (1991). Does the Lower Elwha Court have the same discretion regarding attorney’s fees as did the Puyallup Court?

Plaintiff conceded that under § J (2), attorney’s fees can not be a part of costs. They argue, however, that attorney’s fees are not otherwise specifically prohibited. Although legal parlance in other forums often differentiates “costs” from “attorney’s fees,” we find no evidence of such an intent within the broad context of the instant statutory scheme. Nowhere do we find reference to “attorney’s fees” in the Lower Elwha Tribe Court Procedures Ordinance except in § J (2).

In addition to the rules of statutory construction cited above, we rely on the following well-recognized approach:

Statutory construction requires the application of recognized rules. First [“t]he starting point in every case involving construction of a statute is the language itself. [”] Second, where a statute state[s] what a term “means” then all other meanings not stated are excluded. Third, clear evidence of legislative intent prevails over other principles of statutory construction. Fourth, absent a very clear legislative intent, the plain meaning will prevail . . . . Johns-Manville Corp. v. U.S., 855 F.2d 1156, 1159.

Combining plain language and the singular context of § J (2) with the above analysis, we are compelled by defendant’s argument: attorney’s fees should not have been awarded to the plaintiff in this case.

VI.        DID THE TRIBAL COURT HAVE THE AUTHORITY TO EXTEND JURISDICTION?    

In her memorandum opinion, dated July 27, 1995, Judge Owen extended the Court’s

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jurisdiction over this matter for six months in order to give the Tribal Council time to implement a review of its procedures. This extension of jurisdiction over the case is not proscribed by the Tribe’s Court Procedures Ordinance (see Rule (2) (1) (L) referenced above), nor is it unreasonable in light of the Court’s finding that the March 23, 1993, action “complicated life at the Elwha.”

The six month period has come and gone and we hope life at the Elwha is currently less complicated. We also hope the continued jurisdiction over this matter engendered by our remand of the emotional damages issue does not regenerate further complications. Instead, we hope our remand of this single issue will start or continue a healing process between tribal factions.