5 NICS App. 83, McCLELLAN v. THA (August 1998)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
MARYSVILLE, WASHINGTON
Virginia McClellan, Appellant/ Defendant,
v.
Tulalip Housing Authority, Respondent/ Plaintiff.
No. TUL-Ci-7/97-831 (August 4, 1998)
SUMMARY
Appellant appeals from a trial court judgment terminating her tenancy and ordering her to pay the Tulalip Tribal Housing Authority for damages to her rental unit and to a temporary housing unit. Appellant now seeks dismissal of this action for lack of subject matter jurisdiction, alleging that the eviction notice was defective because it did not provide adequate notice and did not provide an opportunity for Appellant to cure any alleged lease violations. The Court of Appeals holds that the controlling law is the law in effect at the time a decision is rendered, rather than the law in effect when the dispute arose. The presumption against giving statutes retroactive effect does not apply when the statute contains a clear, unambiguous effective date. Affirmed.
FULL TEXT
Before: Emma Dulik, Chief Justice; Charles R. Hostnik, Justice; Larry King, Justice.
Appearances: Virginia McClellan, Appellant, pro se and via Nick Straley, post-hearing counsel for Appellant; Sam Stiltner, counsel for Respondent Tulalip Housing Authority.
Hostnik, J.:
This matter came before the Tulalip Tribal Court of Appeals pursuant to Virginia McClellan’s Notice of Appeal filed on October 27, 1997. Ms. McClellan appeals from the October 7, 1997, trial court judgment terminating her tenancy and ordering her to pay Respondent Tulalip Housing Authority for damage caused to her rental unit and to a temporary housing unit. Oral arguments were heard on March 6, 1998.
5 NICS App. 83, McCLELLAN v. THA (August 1998) p. 84
I. FACTUAL BACKGROUND
On February 2, 1984, Appellant Virginia McClellan entered into a monthly rental agreement with the Tulalip Housing Authority. That rental agreement provides, in relevant part:
3. TENANT AGREES:
(a) To keep said premises in a clean and sanitary condition.
. . .
(d) To not intentionally or negligently destroy, deface, damage, impair or remove any part of the premises … nor to permit any member of the family, invitee, licensee, or other person acting under his control to do so.
(e) Not to permit a nuisance or common waste.
. . .
(g) To pay reasonable, actual charges (other than for wear and tear) for the repair of damages to the premises, project building, facilities, or common areas caused by the Tenant, his household, or guests.
. . .
12. NOTICE TO VACATE:
. . . THA shall give twenty (20) days written notice to Tenant of their intentions to terminate the tenancy hereunder without cause . . . PROVIDED HOWEVER, THA shall be required to give only three (3) days written notice to the Tenant of their intention to terminate the tenancy hereunder by reason of the Tenant’s default in rent; and for any other breach the THA may terminate the tenancy upon ten (10) days written notice for cause.
Exhibit No. 1, pp. 1, 4.
Beginning in August of 1994, the Housing Authority began conducting frequent inspections of the rental property. Written reports from the inspections and one videotaped inspection indicate numerous problems with the condition of the housing unit, including large holes in the walls; missing doors, towel bars and light covers; destroyed doors, doorjambs, kitchen cabinets, venetian blinds, flooring, and closets. See Exhibit 2. The Housing Authority sent Ms. McClellan several letters requesting that she clean up the property and repair damages. See Exhibit 3. At various times, inspection reports indicate that Ms. McClellan would make minor improvements; however, she was never in full compliance with any of the requests.
In 1997, the Housing Authority decided to do the repairs itself and moved Ms. McClellan and her family into a temporary housing unit (a CIAP unit). Ms. McClellan lived in the CIAP unit for sixty days while the renovations were being done on her rental unit. After vacating the CIAP unit and returning to the rental property, Ms. McClellan received a letter from the Housing Authority stating:
5 NICS App. 83, McCLELLAN v. THA (August 1998) p. 85
The [CIAP] unit had just been renovated prior to your moving in. The condition in which you left the unit has serious damage for which you will be responsible for [sic] . . . . In addition, the housing authority had to fumigate the CIAP unit you just moved out of for cockroaches. . . . It appears in both units that some of the damage may have been caused by your rottweiler dog.
Exhibit 3, Letter of April 30, 1997. The letter further informed Ms. McClellan that she was scheduled to meet with the Board of Commissioners regarding the damage to the two units. Ms. McClellan did not appear for the meeting; nevertheless, the Board did review and discuss the damage and decided to terminate her monthly rental agreement.
On July 8, 1997, Ms. McClellan was served with the Notice to Terminate Tenancy, which was based on Ms. McClellan’s failure to maintain the rental unit and the destruction of the CIAP unit. The Notice gave Ms. McClellan until July 21, 1997, to vacate the premises and seven days from receipt of the Notice to request a grievance hearing. Ms. McClellan requested and received a grievance hearing before the Board of Commissioners, which decided to proceed with the eviction. On July 29, 1997, the Housing Authority filed its Complaint for Unlawful Detainer and an Eviction Summons.
The matter was set for trial on September 23, 1997. It was continued, on Ms. McClellan’s motion, to October 7, 1997. Ms. McClellan appeared on October 7 and moved for another continuance, stating that she was not yet ready to proceed as she was still “trying to get a hold of my lawyer.” The Housing Authority objected to yet another continuance, stating that it had not heard from any attorney for Ms. McClellan. The matter proceeded to trial.
After an extensive hearing during which the trial court had the opportunity to review the inspection reports, view the videotaped inspections, and consider the testimony of a number of witnesses, the trial court found that Ms. McClellan had failed to maintain her rental unit and had caused destruction to the CIAP unit. The court terminated Ms. McClellan’s tenancy and ordered her to pay the Housing Authority $2,761.28 for damage to the two housing units.
On October 27, 1997, Ms. McClellan appealed from the trial court’s order. This Court accepted the appeal on November 17, 1997, and issued a briefing schedule which directed Ms. McClellan to file her opening brief within twenty days of the filing of the written trial court transcripts. The transcripts were completed and filed on December 22, 1997, and, in early February, this Court set oral arguments for March 6, 1998.
Ms. McClellan did not file an appellant’s brief. She appeared on March 6, 1998, and requested that oral argument be continued in order to allow her more time to retain an attorney. The Housing Authority objected. This Court denied the motion for continuance; however, Ms. McClellan was allowed to file a supplemental brief by April 6, 1998.
On April 3, 1998 Nick Straley entered his appearance on Ms. McClellan’s behalf and filed
5 NICS App. 83, McCLELLAN v. THA (August 1998) p. 86
her post-hearing brief. A response was filed by the Housing Authority on May 8, 1998. Appellant now seeks dismissal of this action for lack of subject matter jurisdiction, alleging that the eviction notice was defective because it did not provide adequate notice and did not provide an opportunity for Ms. McClellan to cure any alleged lease violations.
II. DENIAL OF CONTINUANCE OF ORAL ARGUMENT DATE
This matter came before the Court for oral argument on March 6, 1998. At that time Ms. McClellan was represented pro se, and the Tulalip Housing Authority was represented by Samuel J. Stiltner, attorney at law.
At the time of the oral argument Ms. McClellan requested a continuance because she did not have an attorney representing her at the time of her oral argument. After extensive questioning by the appellate panel it was clear that no attorney had ever entered an appearance on behalf of Ms. McClellan during the course of the pendency of the appeal. Ms. McClellan had over seven months from commencement of the action to obtain counsel, but could not demonstrate to the Court that she had in fact retained an attorney to represent her at the time of the oral argument.
In reviewing the record it is apparent that Ms. McClellan, on two separate occasions, requested a last-minute continuance. The trial court granted the first request for a continuance, but denied the second request for a continuance because it was not made until the time of the hearing. The Housing Authority was present with witnesses and audio visual equipment to proceed to trial. The trial judge did not find good cause for a second continuance, and denied that request. This pattern appears to have been repeated on appeal. The appellate panel therefore denied the request for continuance, but did permit Ms. McClellan a 30 day period after the date for oral argument within which to submit a brief on any points and authorities which she desired to bring to the attention of the appellate panel, before this Court would rule on the appeal.
On April 3, 1998, a brief was received on behalf on Ms. McClellan from Nick Straley, an attorney at law. A responsive brief of the Tulalip Housing Authority was filed on May 8, 1998. A second round of briefs were filed on May 13 by Appellant, and May 21 by Respondent. Appellant filed a third brief on June 1, 1998. This matter is now before us for decision.
III. JURISDICTION
This Court has personal jurisdiction over Appellant because she is a member of the Tulalip Tribes and resides on the Tulalip Indian Reservation. The act which is the subject of this appeal occurred within the exterior boundaries of the Tulalip Reservation, giving rise to territorial jurisdiction.
Ms. McClellan, in her post-hearing briefs, for the first time challenges this Court’s subject matter jurisdiction. Ms. McClellan’s advocate argues that due to an improper eviction notice, the
5 NICS App. 83, McCLELLAN v. THA (August 1998) p. 87
trial court never acquired subject matter jurisdiction over this unlawful detainer action. The appellate panel has reviewed that argument with interest.
IV. EFFECT OF TULALIP ORDINANCE 50
The provisions of Tulalip Ordinance Number 50 are directly applicable to this proceeding. Section 1.3(5) states that a tenant of real property for a term less than life is guilty of unlawful detainer when the tenant commits or permits waste upon the premises, and remains in possession of the premises after service of a three day notice to quit. It is apparent that the Housing Authority was well justified in alleging that the terms of the lease were breached, in that the premises were intentionally or negligently destroyed, defaced, damaged, impaired, or removed. This was a violation of Section 3(d) of the Lease admitted into evidence as Exhibit 1, as well as a violation of her agreement to not permit waste under Section 3(e) of Exhibit 1. Although the terms of the eviction notice did not use the term “waste”, it was clear that in stating that the reason for eviction was “failure to maintain rental unit and destruction of CIAP unit” this included allegations of waste of the unit.
The Housing Authority was justified under Ordinance No. 50 in using a three day notice to evict. In fact the notice given was 13 days.1 Such notice was appropriate under the terms of Ordinance Number 50.
V. EFFECT OF NAHASDA
Appellant challenges the notice provided, arguing that a minimum of 30 days notice prior to filing an unlawful detainer action was required. This argument is based upon 24 C.F.R. § 950.340(b)(3), which required:
(b) Leases. Each IHA [Indian Housing Authority] shall use leases that:
. . .
(3) Require the IHA to give adequate written notice of termination of the lease that shall not be less than –
(i) A reasonable time, but not to exceed 30 days, when the health or safety of other tenants or IHA employees is threatened:
(ii) Fourteen days in the case of nonpayment of rent; and
(iii) Thirty days in any other case.
. . .
5 NICS App. 83, McCLELLAN v. THA (August 1998) p. 88
24 C.F.R. §950.340(b)(3). This provision was in effect when the termination notice was given, but has been superseded by the Native American Housing Assistance and Self-Determination Act2, 25 U.S.C. §4101 et seq., and regulations adopted pursuant thereto. This Act was passed on October 26, 1996, but became effective (for purposes of this case) on October 1, 1997.3 The relevant portion of that Act provided that as of October 1, 1997:
Leases. Except to the extent otherwise provided by or inconsistent with tribal law, in renting dwelling units in affordable housing assisted with grant amounts provided under this Act, the owner or manager of the housing shall utilize leases that –
…
(3) require the owner or manager to give adequate written notice of termination of the lease, which shall be the period of time required under State, tribal or local law;
…
25 U.S.C. § 4137(a)(3). Ms. McClellan’s eviction complied with these requirements. These are the requirements currently in effect.
The issue presented is whether this Court is to apply the law in effect at the time the eviction notice was provided and the eviction action commenced, or are we to apply the current law, which became effective October 1, 1997?
The interpretation of the effectiveness of the NAHASDA, and the regulations adopted pursuant thereto, is a question of federal law. We need not engage in that inquiry, however, because the U.S. Supreme Court has already decided this issue. We agree with Respondent Tulalip Housing Authority that the case of Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 21 L.Ed.2d 474, 89 S.Ct. 518 (1969) controls our decision in this case. The Court determined that the law in effect at the time a decision is rendered must be used, rather than the law in effect when the dispute arose. Thorpe, supra, 393 U.S. at 281-283.
Appellant argues that applying the NAHASDA to this case violates the general rule that statutes should not be given retroactive effect, citing Landgraf v. USI Film Products, 511 U.S. 244 128 L.Ed.2d 229, 114 S.Ct. 1483 (1994). We find the Landgraf opinion inapplicable for several reasons.
First, although there is a presumption against retroactive application, that presumption does not apply when a statute contains a clear, unambiguous effective date. Here the applicable portion of the NAHASDA was declared by Congress to be effective on October 1, 1997. It therefore was
5 NICS App. 83, McCLELLAN v. THA (August 1998) p. 89
the law to be applied on the date of the trial court’s decision, six days later.
Second, jurisdictional arguments go to the power of the court to hear a matter. When the matter was heard on October 7, 1997, the court clearly had the power under the NAHASDA to hear the eviction action. See Landgraf, supra, 511 U.S. at 274.
Third, as noted by the Landgraf opinion, Thorpe recognized that the change in law did not affect either party’s substantive rights under the lease. Landgraf, supra, 511 U.S. at 276. The same is true in this case.
If the Appellant’s position is correct and the Housing Authority should have given Ms. McClellan 30 days notice instead of 13 days notice of the eviction, that lack of additional time has not prejudiced Ms. McClellan. She remained in possession of the rental unit from the time notice was given in July until the trial date of October 7. In fact, she remains in possession today – one year after the eviction notice was served.
In this case, the NAHASDA was not applicable when the eviction notice was given and when this action was commenced. However, by the time the trial court took testimony and rendered its decision, the NAHASDA was in effect. Therefore, both the trial court and this Court are required to apply the provisions of the NAHASDA. Under that Act the trial court had jurisdiction to render its opinion.
As applied to this case, the NAHASDA requires the Housing Authority to give written notice of lease termination as required under tribal law. 25 U.S.C. §4137(a)(3). The Housing Authority did so. See pp. 6-7, supra.
VI. DECISION
The appellate panel has had an opportunity to review the entire trial court record in this matter, and has had the extraordinary opportunity to examine in detail the multiple rounds of post- argument briefs submitted by both parties. Based upon that review we can find no error which occurred below. The Findings of Fact and Conclusions of Law entered on October 7, 1997, the Judgment entered on the same date, and the Writ of Restitution entered by the clerk of the court also on October 7, 1997, are all affirmed.
Chief Justice Dulik and Justice King concur.
We note that despite the 3 day notice permitted for waste under Ordinance Number 50, Section 1.3(5), a longer, ten day notice period appears to be required under the Lease to terminate for breaches other than failure to pay rent. See Exhibit 1, page 4, Section 12 . Termination for waste is a breach that appears to require such a ten day notice. However, we do not decide this issue, as the Housing Authority in fact provided more than 10 days notice in this case.
Hereinafter referred to as “NAHASDA.”
See, P.L. 104-330 §107.