5 NICS App. 25, SOUCIE v. JOHNSON (January 1998)

IN THE BURNS PAIUTE TRIBAL COURT OF APPEALS

BURNS PAIUTE INDIAN RESERVATION

BURNS, OREGON

Timothy J. Soucie, Appellant/Defendant,

v.

Wanda Johnson, Respondent/Plaintiff.

No. CV 003-96 (January 13, 1998)

SUMMARY

At the time Appellant was a law enforcement officer for the Burns Paiute Tribe, he investigated and arrested an individual against whom all charges were subsequently dropped. That individual filed a complaint against Appellant. Appellant prevailed at trial and requested attorney fees and costs. The trial court refused to consider Appellant’s request. Finding that the trial court’s failure to exercise discretion constitutes an abuse of discretion, we remand.

FULL TEXT

Before:            Elbridge Coochise, Chief Justice; Charles R. Hostnik, Justice; Thomas W. Weissmuller, Justice.

This matter came before the Burns Paiute Tribal Court of Appeals pursuant to Timothy J. Soucie’s Notice of Appeal filed on April 8, 1997. Mr. Soucie appeals from the trial court’s July 17, 1996, refusal to consider his request for attorney fees and costs.

I. STATEMENT OF FACTS

Timothy J. Soucie is a former Burns Paiute Tribal police officer. During the time that he served in that capacity, Mr. Soucie investigated the actions of Wanda Johnson with regard to a grant application. Pursuant to his investigation, he requested and obtained an arrest warrant from Judge Kemp.

In August of 1995, pursuant to the arrest warrant, Officer Soucie arrested Ms. Johnson. Ms. Johnson was transported to the Burns jail facility, where she was fingerprinted, photographed and released. All criminal charges against Ms. Johnson were subsequently dismissed.

Ms. Johnson then filed a complaint against Mr. Soucie, alleging false imprisonment and malicious prosecution. The trial court, finding that Ms. Johnson had failed to meet her burden of proof as to either the false imprisonment or malicious prosecution claims, ruled in Mr. Soucie’s favor. The trial court further stated that “[n]o request for attorney fees, reimbursement, or costs will

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be considered by this Court.” Findings of Fact and Conclusions of Law, at 3 (March 19, 1997).

Mr. Soucie appeals from the trial court’s refusal to consider his request for attorney fees, reimbursement, or costs.

II. JURISDICTION

This Court has personal jurisdiction over Appellant Timothy J. Soucie because he is a member of the Burns Paiute Tribe. The act which is the subject of this appeal occurred within the exterior boundaries of the Burns Paiute Indian Reservation, giving rise to territorial jurisdiction. This Court has subject matter jurisdiction pursuant to the Civil Jurisdiction provisions of Chapter I, § B(1)(b) and Chapter I, § E(1) of the Burns Paiute Tribal Laws which provides that "[t]he Court of Appeals shall have jurisdiction to review final orders, commitments and judgments of the tribal court."

III. ISSUE ON APPEAL

The sole issue on appeal is whether the trial court judge abused his discretion when he declined to consider Mr. Soucie’s request for attorney fees and costs.

IV. TIMELINESS OF APPEAL

The trial court order from which Mr. Soucie appeals was entered on March 19, 1996. Mr. Soucie’s Notice of Appeal was filed twenty days later, on April 8, 1997. The typewritten text of Chapter I, § E(3) of the Burns Paiute Tribal Code provides, in relevant part:

Within 30 days from the entry of the judgment or order appealed from, written notice of appeal must be filed. No extension of the ten day period shall be granted. . . .

The “30" has been stricken and “10" has been written in above it in the official tribal code. Standing alone, the first sentence of § E(3) gives no indication that the handwritten change was authorized or should be given effect. Nevertheless, the second sentence of § E(3) states that there will be no extensions of “the ten day period.” Presumably, this refers back to the numeric reference in the immediately preceding sentence. The only manner in which the two sentences and handwritten notation can be construed so as to avoid contradiction, would require a party to file a written notice of appeal within ten (10) days from entry of the trial court’s judgment or order.

Mr. Soucie filed his Notice of Appeal on the twentieth day following entry of the judgment from which he is appealing. During oral argument, the parties indicated that previous appeals have been permitted if filed within a thirty-day time frame. We are not aware of any Burns Paiute cases specifically on this issue. Therefore, it is an issue of first impression in this Court.

We recognize the patent ambiguity between the first two typed sentences of § E(3) of Chapter

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I. Nonetheless, because: (1) there has been no previous guidance regarding this ambiguity in the code; (2) there presumably has been a practice of permitting appeals filed within thirty days; and (3) Respondent has not demonstrated she would suffer any prejudice as a result of allowing Mr. Soucie’s appeal to proceed, this Court will allow Mr. Soucie’s appeal as timely filed.

This Court is charged with interpreting those enactments of the tribal council that apply to particular cases. Interpretation of the applicable appeal period in Chapter I, §(3) is difficult and should be clarified by the tribal council. Until that occurs, parties before the court need guidance. We believe a standard of ten business days is most appropriate in light of the current ambiguity. The term “business day” excludes weekends, holidays, and other days that the tribal court is not open for business. This ruling is prospective only. Therefore, all appeals filed subsequent to entry of this Opinion must be filed within ten business days of entry of the trial court judgment or order.

V. DISCUSSION

The standard of review on appeal is abuse of discretion. Burns Paiute Tribal Code, Chap. I, §E(1).¹ The sole question with which this Court of Appeals is faced is whether the trial judge abused his discretion in declining to consider Mr. Soucie’s request for attorney fees and costs.

The grant of attorney fees and court costs is discretionary. Burns Paiute Tribal Code, Chap. IV, § I(3). Had the trial judge indicated his reasons for refusing Mr. Soucie’s request, we would have a basis upon which to determine whether he had abused his discretion. In fact, had the trial judge denied Mr. Soucie’s request, this Court could find that denial was well within the bounds of the trial court’s discretion.

Instead, the trial court refused to even consider Mr. Soucie’s request. In doing so, the trial court judge failed to exercise any discretion at all with regard to Mr. Soucie’s request. This Court of Appeals will not substitute its own discretion for that of the trial court. However, the record must show that the trial court did exercise discretion. The failure to exercise discretion is an abuse of discretion.

5 NICS App. 25, SOUCIE v. JOHNSON (January 1998) p. 28

VI. ORDER

It is hereby ordered that this matter is remanded to the trial court with instructions to consider, exercise discretion, and rule upon Mr. Soucie’s request for attorney fees.

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“Abuse of discretion” is synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term indicating that [an] appellate court is of [the] opinion that there was commission of an error of law by the trial court.

BLACK’S LAW DICTIONARY 10 (5th ed. 1979).

Chapter I, §E(1) provides, in relevant part: “On appeal, the record and decision of the trial court shall be reviewed for error.”