6 NICS App. 93, ARMSTRONG v. GEORGE (July 2002)
IN THE SUQUAMISH TRIBAL COURT OF APPEALS
PORT MADISON INDIAN RESERVATION
SUQUAMISH, WASHINGTON
Bennie J. Armstrong, Merle A. Hayes, Leonard Forsman, Georgia C. Rye, Charles R. Sigo, Wayne A. George, and Merle K. George, Appellants/Respondents,
v.
Randy George, Jim Henry, and Roger Contraro, members, Suquamish Tribal Gaming Commission, Appellees/Petitioners.
No. 001001 Civ (July 1, 2002)
SYLLABUS*
Trial court issued injunction preventing Tribal Council from holding hearing to remove members of Gaming Commission because the Council’s hearing procedures denied the Commissioners due process. Court of Appeals holds (1) hearing procedures which deny Commissioners the opportunity to call witnesses and to cross-examine adverse witnesses denies Commissioners due process; (2) Tribal Council’s continuing failure to either reappoint or replace a Commissioner when that Commissioner continued to serve after that Commissioner’s term had expired acted as a tacit reappointment of that Commissioner to a new term of office, and so the controversy before the Court was not moot. Trial court order affirmed
Before: Elizabeth Fry, Chief Justice; Patricia Paul, Justice; Gregory Silverman, Justice.
Appearances: Michelle Hansen for Appellants/Respondents Bennie J. Armstrong, Merle A. Hayes, Leonard Forsman, Georgia C. Rye, Charles R. Sigo, Wayne A. George and Merle K. George. Randy George, Jim Henry, and Roger Contraro, pro se.
OPINION
The present case is an appeal from an order of the Suquamish Trial Court enjoining a removal hearing under Suquamish Tribal Code (STC) § 11.5.211 until the Suquamish Tribal
6 NICS App. 93, ARMSTRONG v. GEORGE (July 2002) p. 94
Council adopts procedures consistent with the requirements of due process under Article XI of the Suquamish Constitution2 and the Indian Civil Rights Act of 1968, 25 U.S.C. § 1301.3 In issuing this injunction, the lower court specifically held that the current procedures for the removal hearing failed to meet the minimal standards of due process because, inter alia, the Gaming Commissioners were not afforded an opportunity to cross-examine any witnesses whose testimony may be received or relied on by the Tribal Council, or to call witnesses whose testimony is relevant to the specific grounds for removal or the Commissioner's defense. At oral argument, the Tribal Council made clear, through its attorney, that its objection to the lower court’s order is limited to this aspect of the holding. The Tribal Council argues that due process in a removal hearing requires neither an opportunity to cross-examine witnesses nor an opportunity to call witnesses on one’s behalf. The Tribal Council also argues that the lower court should have dismissed the lawsuit of the Gaming Commissioners as moot because their terms as commissioners had expired.
I. Facts
The Suquamish Tribal Gaming Commission comprises three commissioners. The term of a commissioner is three years. S.T.C. § 11.5.16. At present, the three commissioners are Randy George, Roger Contraro, and Jim Henry. Randy George was appointed to the Suquamish Tribal Gaming Commission on February 9, 1998 to serve out the term of Scott Crowell, whose three-year term as a commissioner began on July 8, 1996. Order on Remand, 6 (June 11, 2001). Roger Contraro was appointed to a two-year term as a commissioner which began on July 8, 1996. Id. Commissioner Contraro’s term naturally expired on July 7, 1998, but he continued in office as a de facto holdover. On August 2, 1999, he was reappointed to the Tribal Gaming Commission to serve out the term of Charles Sigo, whose unexpired term had begun on March 30, 1997. Id. On the same day that Mr. Contraro was reappointed to the Tribal Gaming Commission to finish the term of Mr. Sigo, Jim Henry was appointed to serve out the term that Mr. Contraro had begun as a de facto holdover on July 8, 1998. Id.
6 NICS App. 93, ARMSTRONG v. GEORGE (July 2002) p. 95
On August 14, 2000, the Suquamish Tribal Council unanimously voted in executive session to seek removal of Commissioners Randy George, Roger Contraro and Jim Henry from their positions as commissioners of the Suquamish Tribal Gaming Commission. On August 21, 2000, the Suquamish Tribal Council gave written notice to Randy George, Roger Contraro, and Jim Henry of its intent to remove each Commissioner from his appointed position pursuant to S.T.C. § 11.5.21. A hearing on their removal was scheduled for August 29, 2000. By agreement of both the Tribal Council and the Commissioners, the hearing date was rescheduled twice and finally set for October 2, 2000.
In preparation for the hearing scheduled for October 2, 2000, the Commissioners requested, inter alia, the opportunity to cross-examine any witnesses called to testify against them as well as to call witnesses on their own behalf. The Tribal Council denied these requests. As a result of these denials, the Commissioiners petitioned the Suquamish Trial Court to enjoin the hearing. A few hours before the hearing was to begin, the court granted a temporary injunction and scheduled a show cause hearing for October 24, 2000. Order for Injunctive Relief (October 2, 2000).
Following the show cause hearing, the court issued an order that, inter alia, required the Tribal Council to adopt hearing procedures consistent with the due process provisions of the Suquamish Tribal Constitution and the Indian Civil Rights Act before it could proceed with the the hearing on the removal of the Commissioners. Order (October 30, 2000). Responding to a request for clarification, the court expressly noted that such hearing procedures must provide the Commissioners with an opportunity to cross-examine any witnesses whose testimony was received or relied on by the Tribal Council and to call witnesses whose testimony is relevant to the specific grounds for removal or the Commissioners’ defense. Order En Banc, 3 (November 20, 2000).
The Tribal Council filed a Notice of Appeal in this matter on November 29, 2000.
II. Issues Presented
Appellant argues on appeal that: (1) the Suquamish Tribal Court erred, as a matter of law, in holding that the Suquamish Tribal Council's existing procedures for removing gaming commissioners violates the Suquamish Tribal Constitution and the Indian Civil Rights Act and (2) the Commissioners’ lawsuit should have been dismissed as moot because the Commissioners’ terms have expired. If Appellant is correct with respect to either of these two issues, the judgment below must be reversed. If, however, the removal procedure employed by the Tribal Council violates the due process rights of the Commissioners under either the Indian Civil Rights Act of 1968 or Article XI of the Suquamish Constitution and the Commissioners’ lawsuit is not moot because their terms have not expired, then the trial court’s order must be affirmed.
6 NICS App. 93, ARMSTRONG v. GEORGE (July 2002) p. 96
III. Discussion
Judge Brown correctly noted that the removal of the Commissioners will adversely affect their reputation within the tribal community, the boundaries of the Port Madison Indian Reservation and beyond. Judge Brown also observed that, as this is a tribal court, the "weight" it must attach to an individual's interest in his or her reputation should reflect the weight which Native Americans have traditionally attached to an individual's reputation. Judge Brown held that his court viewed that "weight" as substantial.
Judge Brown correctly wrote in his Order En Banc of November 20, 2000 that
the Tribal Council had both the authority and duty to convene and proceed with a removal hearing, provided such removal hearing was conducted in a manner that would not violate the due process rights of the gaming commissioners as guaranteed under the Constitution of the Suquamish Tribe, and the Indian Civil Rights Act of 1968, 25 U.S.C. § 1301, et seq.
Order En Banc, at 2 (November 20, 2000). Judge Brown continued that to meet this standard, a removal procedures should include, at a minimum:
(a) Prior written notice of the specific grounds, and/or allegations, which serve as the basis for such removal;
(b) A hearing before the Tribal Council, where written evidence and/or oral testimony is offered and received;
(c) An opportunity to examine and, if appropriate, challenge the receipt of any written evidence, if appropriate;
(d) An opportunity to cross-examine any witnesses whose testimony was received or relied on by the tribal council;
(e) An opportunity to call witnesses whose testimony is relevant to the specific grounds or the commissioner's defense; and
(f) An opportunity to offer testimony on their own behalf, provided such testimony is relevant to the specific grounds for removal or the commissioner's defense.
Id. at 3. We agree with Judge Brown.
In Mathew v. Eldridge, 424 U.S. 319, (1976), the Supreme Court of the United States wrote that when evaluating whether the requirements of due process have been satisfied in a particular matter, three things must be considered:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal
6 NICS App. 93, ARMSTRONG v. GEORGE (July 2002) p. 97
and administrative burdens that the additional or substitute procedural requirement would entail. See, e.g., Goldberg v. Kelly, supra, 397 U.S., at 263-271, 90 S.Ct., at 1018-1022.
Mathew v. Eldridge, 424 U.S. at 335. In the case at bar, the private interest that will be affected is each Commissioner’s reputation. The current procedures forbid a commissioner from calling witnesses in his own defense and deprive him of any opportunity to cross-examine the witnesses who testify against him.4 Without these time-honored tools for refuting falsehood and illuminating the truth, the likelihood of error in the removal process is increased significantly. Accordingly, we hold that under the current procedures there is an unacceptable risk of harm to each Commissioner’s reputation.
In light of this conclusion, there remains only the need to consider whether affording the Commissioners an opportunity to call witnesses on their own behalf and to cross-examine witnesses who testify against them would impose an unacceptably high cost on the Tribe.
As the Supreme Court noted in Mathews v. Eldridge, “while financial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision,” Id. at 348, 909, “the Government's interest, and hence that of the public, in conserving scarce fiscal and administrative resources is a factor that must be weighed.” Id. As explained below, given the importance of an individual’s reputation within the Tribe, we hold that the additional costs of affording a commissioner these procedural safeguards to prevent unwarranted harm to his or her reputation are not unduly burdensome.
Permitting the Commissioners the right to cross-examine any witnesses relied upon by the Tribal Council, as well as the right to call witnesses on their own behalf, is implied by the requirements of due process. As the United States Supreme Court has noted,
Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. Pennoyer v. Neff, 95 U.S. 714, 733 (1878).
The interest sought to be protected here is in the nature of a "liberty" interest — the interest that the Commissioners’ have in their good name, reputation, honor, and integrity is at stake through the Tribal Council’s attempt to remove them from their positions for good cause. Under these circumstances, the traditions of the Suquamish peoples and established requirements
6 NICS App. 93, ARMSTRONG v. GEORGE (July 2002) p. 98
of due process clearly support the right of the Commissioners to call witnesses on their own behalf and to cross-examine the witnesses of the Tribal Council who testify against them.
Accordingly, we hold that the traditions and customs of the Suquamish Tribe require that before their removal from office, tribal members who are appointed to positions of authority and power, be granted the right and ability to defend their good name, reputation, honor, and integrity in a full and fair hearing conducted in a manner consistent with the requirements of due process. Those requirements include an opportunity to cross-examine any witnesses whose testimony was received or relied on by the Tribal Council, and to call witnesses whose testimony is relevant to the specific grounds for removal or the tribal members’ defense.
IV. Current Status of the Commissioners
To address the issue of mootness, we remanded the case back to the trial court with instructions to conduct a hearing to determine if and when the Commissioners terms expired. The length of a commissioner’s term is governed by STC § 11.5.16.5 In the Order on Remand, Judge Brown found that Randy George's term naturally expired on July 7, 1999, Roger Contraro's term on March 29, 2000, and Jim Henry's on July 7, 2001.
Based on these findings, Judge Brown concludes that the three Commissioners are now de facto holdovers. Judge Brown’s analysis, however, fails to take account of one critical fact. While Commissioner Jim Henry’s term only expired during the pendency of this appeal, the terms of Commissioners Randy George and Roger Contraro naturally expired before the Tribal Council voted to remove them. If the Tribal Council had viewed Commissioners Randy George and Roger Contraro as de facto holdovers, then there would have been no need to initiate proceedings to remove them from their offices. De facto holdovers to any office are immediately replaced by the de jure appointment of their successors. Accordingly, by simply appointing successors to Commissioners Randy George and Roger Contraro, the Tribal Council could have replaced them. The Tribal Council’s failure to simply appoint successors to these two commissioners, therefore, requires us to conclude that the Tribal Council did not view Commissioners Randy George and Roger Contraro as de facto holdovers but as de jure occupants of their offices.
The Tribal Council’s apparent view that Commissioners Randy George and Roger Contraro were de jure commissioners, even though the terms to which they had been expressly appointed had naturally expired, is ultimately grounded in the sound policies reflected in the Suquamish Tribal Code. Section 11.5.21 of the Suquamish Tribal Code expressly states that a commissioner may be removed for good cause. The obvious intent of S.T.C. 11.5.21 is to
6 NICS App. 93, ARMSTRONG v. GEORGE (July 2002) p. 99
provide commissioners with sufficient independence so that they may carry out their regulatory roles. As the National Indian Gaming Commission notes, stressing the importance of a gaming commissioner’s independence,
Effective regulatory oversight requires a functional separation between the operation of tribal gaming and the regulation of that tribal gaming. In the NIGC’s experience, a well-run tribal gaming commission, free to regulate without undue influence from tribal leadership, is the best vehicle for achieving this functional separation.
National Indian Gaming Commission, Independence of Tribal Gaming Commissions, No. 99-3, at 1 (October 12, 1999)(emphasis in the original). The National Indian Gaming Commission continues that
Removal of commission members … should be for good cause only and follow a procedure which provides for due process. Removal should not be permitted for simple disagreement with tribal leadership over matters that involve a gaming commissioner’s exercise of discretion in the performance of duty.
Id. at 2. By requiring good cause for the removal of a gaming commissioner, a commissioner is assured thet independence necessary for him to carry out his regulatory role without improper influence from the Tribal Council. Accordingly, we hold that S.T.C. § 11.5.21 requires that a gaming commissioner can only be removed for good cause.
Clearly, the independence of a gaming commissioner would be severely compromised if he could be removed without good cause. But this would be precisely the result if a sitting commissioner were held to be a de facto holdover for any length of time. As we have already noted, a de facto holdover serves at the pleasure of the Tribal Council, since the Tribal Council can replace him by simply appointing a successor. To avoid this result, we must agree with the apparent view of the Tribal Council that its continuing failure to act either to expressly reappoint a commissioner, or to appoint a successor, must be construed after a sufficient amount of time as the Tribal Council’s tacit reappointment of that commissioner to a new term.
In the present case, the only question that remains, therefore, is whether a sufficient amount of time had passed such that the Tribal Council’s failure to act must be construed as a reappointment of Commissioners Randy George and Roger Contraro to new terms. Over a year passed between the natural expiration of Randy George’s term and the Tribal Council’s vote to initiate proceedings to remove him. Similarly, four and one-half months passed between the expiration of Roger Contraro’s term and the Tribal Council’s vote to commence removal proceedings against him. Based on the Tribal Court’s own action, therefore, we hold that the Tribal Council’s failure to replace a de facto holdover gaming commissioner for four and one-half months is tantamount to his or her reappointment for a new term. We do not hold that four and one-half months is required, but only that it is sufficient. In the court’s view, three months
6 NICS App. 93, ARMSTRONG v. GEORGE (July 2002) p. 100
might also be sufficient, since this appears to be ample time for the Tribal Council to identify and appoint a successor if it desires to replace a sitting commissioner. To extend the required time beyond that which is reasonably necessary for the Tribal Council to act is unwarranted, because it would unnecessarily undermine the independence of the gaming commissioners.
Insofar as we hold that Commissioners Randy George and Roger Contraro were reappointed through the Tribal Council’s failure to act to replace them, we further hold that the present term of Randy George will naturally expire on July 7, 2002 and that the present term of Roger Contraro will naturally expire on March 29, 2003. If the Tribal Council seeks to remove Commissioners Randy George and Roger Contraro prior to the natural expiration of their terms, it can only do so for good cause shown in removal proceedings conducted in a manner that is consistent with the requirements of due process, including an opportunity for the Commissioners to cross-examine any witnesses whose testimony was received or relied on by the Tribal Council, and to call witnesses whose testimony is relevant to the specific grounds for removal or the Commissioner's defense.
As to Commissioner Jim Henry, we note that his term naturally expired on July 7, 2001 during the pendency of this appeal. Insofar as the appeal was still pending and the Tribal Council was prevented by order of this court from acting to appoint a successor to Commissioner Jim Henry, we hold that the running of the clock was also stayed during the pendency of this appeal and that as a matter of law, no time has passed since the natural expiration of Commissioner Jim Henry’s term. With the issuance of this opinion, however, the clock begins to run again with respect to Commissioner Jim Henry and if the Tribal Council fails to appoint a successor within a reasonable amount of time, then he too must be deemed reappointed to a new term.
V. Conclusion
For the reasons set forth above, the order of the trial court is affirmed.
The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
S.T.C. 11.5.21 Removal of Commissioners. Any gaming commissioner may be removed for good cause, after written notice and an opportunity to be heard by the tribal council. Good cause exists when any condition occurs or is discovered which would exclude a person from appointment. The decision of the tribal council on such removal shall be final. (Res. 95-031 (part), passed Apr. 3, 1995)
The Suquamish Constitution, Article XI - Bill of Rights, states that
All members of the Suquamish Indian Tribe shall be accorded equal rights pursuant to Tribal Law.
No member shall be denied any of the rights or guarantees enjoyed by non-Indian citizens under the Constitution of the United States, including, but not limited to, freedom of religion, conscience, freedom of speech, the right to orderly association or assembly, the right to petition for action or the redress or grievances, and due process of law.
The Indian Civil Rights Act of 1968, 25 U.S.C. ( 1302 (8), states that
No Indian tribe in exercising powers of self-government shall -- (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
Appellant said during oral argument of June 22, 2001, that the Tribal Council objected only to procedural safeguard (d) and (e) on page 3 of the Order En Banc. The Appellants accepted (a) (b) (c) and (f).
11.5.16 Terms for Commissioners. Appointment of commissioners and the alternate shall be for a period of three years, except that of the initial commissioners, one commissioner shall be appointed for one year, one for two years and one for three years in order to achieve a staggered appointment schedule and to provide continuity within the commission. The alternate shall be appointed for one year. The commissioners and the alternate may be reappointed for one or more successive terms. (Res. 95-031 (part), passed Apr. 3, 1995)