TOWNSEND v. PORT GAMBLE HOUSING AUTHORITY

6 NICS App. 179, TOWNSEND v. PORT GAMBLE HOUSING AUTHORITY (October 2004)

IN THE PORT GAMBLE S'KLALLAM TRIBAL COURT OF APPEALS

PORT GAMBLE S'KLALLAM INDIAN COMMUNITY

KINGSTON, WASHINGTON

Nancy Townsend, Appellant,

Port Gamble S’Klallam Housing Authority, Respondent.

No. POR-CI-5/03-091 (October 18, 2004)

SYLLABUS^*

Trial court upheld Housing Authority decision terminating Appellant’s Mutual Help Occupancy Agreement on grounds that Appellant’s use of the property to host church activities created a nuisance in violation of the Agreement. Court of Appeals holds (1) procedures utilized by Housing Authority provided due process; (2) Tribe may enforce a nuisance ordinance even when doing so may have an indirect effect on the practice of religion; (3) evidence in the record supported the ruling of the trial court; and (4) failure of Housing Authority review board to administer an oath to witnesses did not require reversal where the validity of the testimony given was not called into question. Trial court affirmed.

Before: Gary F. Bass, Chief Justice; Lisa L. Atkinson, Justice; Martin C. Bohl, Justice.

Appearances: Judith Hunt for Appellant Nancy Townsend; Joanne Foster for Respondent Housing Authority.

OPINION

Atkinson, J.:

This matter came before the Court of Appeals for the Community Court pursuant to Appellant’s Notice of Appeal filed on January 16, 2004. The Appellant is appealing the Findings of Fact and Conclusions of Law of the Community Court issued on December 29, 2003.

Oral Argument was heard on June 23, 2004. Spokesperson Judith Hunt appeared for Appellant Nancy Townsend, and attorney Joanne Foster appeared for the Respondent Housing

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Authority.

SUMMARY

This case concerns a housing appeal from the decision of the Port Gamble S'Klallam Tribal Housing Authority ("Housing Authority") in which the Appellant was found to have violated her Mutual Help Occupancy Agreement ("MHOA," or "Agreement"), whereupon the Housing Authority terminated Appellant's Agreement. The Port Gamble S'Klallam Tribal Community Court ("Community Court") upheld the decision of the Housing Authority. We affirm.

JURISDICTION

This Court has personal jurisdiction over Appellant Nancy Townsend because she is a member of the Port Gamble S'Klallam Indian Tribe and resides within the exterior boundaries of the Port Gamble S'Klallam Indian Community. Port Gamble S'Klallam Tribal Code, Title 1, § 1.02.01 and § 1.02.03. This Court has personal jurisdiction over Respondent Port Gamble S'Klallam Tribal Council (hereinafter referred to as Tribe) pursuant to the same section. This Court has territorial jurisdiction over this action because the subject of this appeal occurred within the exterior boundaries of the Port Gamble S'Klallam Indian Community. (Amended Constitution and Bylaws of the Port Gamble Indian Community, Article I).

Further, this Court has subject matter jurisdiction over this action as it arises from an appeal of the decision of the Port Gamble S'Klallam Tribal Community Court and the Port Gamble S'Klallam Housing Authority.

PROCEDURAL HISTORY

This matter comes before the Port Gamble S'Klallam Appellate Court with a five-year history. For clarity of this opinion, we will compile the history into the brief outline below.

Appellant Nancy Townsend entered into a rental agreement with the Housing Authority on April 1, 1998. The agreement was to be converted into a Mutual Help Occupancy Agreement after one year, however, there was a delay in the actual conversion to MHOA due to an oversight on the part of the Housing Authority.

The Housing Authority sent letters to Appellant on April 25, 2000, January 24, 2001, and October 8, 2002, informing her of complaints from neighbors concerning excessive noise coming from her residence. The Housing Authority had twice proposed to Appellant that she would need to conclude any Native American Church activities that could be heard beyond closed doors by 10:00 p.m., and had held a meeting with Appellant in an attempt to resolve this matter. At the meeting, the Appellant agreed to limit the drumming and singing to Fridays and Saturdays from 7:00 p.m. to 10:00 p.m. (Findings of Fact and Conclusions of Law, pages 2-3).

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On January 8, 2003, when the issue still had not been resolved, the Housing Authority terminated Appellant's MHOA and advised her of her right to a hearing. The hearing was conducted on January 16, 2003, with the Housing Authority deciding to uphold the termination. (Id.).

On May 8, 2003, the Housing Authority filed a Complaint for Unlawful Detainer against Appellant. The matter was heard by the Community Court on July 15, 2003, and was remanded back to the Housing Authority for a more thorough decision. The revised decision was provided by the Housing Authority on August 5, 2003, a response was provided by Appellant on September 23, 2003, and the parties were again heard by the Community Court n October 21, 2003. (Id.)

On December 29, 2003, the Community Court issued its decision to uphold the termination of Appellant's MHOA. Appellant filed her appeal in a timely manner and the appeal is now properly before the Court of Appeals.

FACTUAL BACKGROUND

The Port Gamble Tribe has adopted a tribal land code containing eviction procedures. "Nuisance" is defined and addressed in this code. "Nuisance is the maintenance of real property of a condition which: (1) unreasonably threatens the health or safety of the public or of neighboring land users; or (2) unreasonably and substantially interferes with the ability of neighboring property users to enjoy the reasonable use and occupancy of their property." (§10.02.02 (h)). If a person is found by the Housing Authority to have maintained a nuisance on his/her property, the Housing Authority is required to provide notice to said party identifying the alleged nuisance and commanding the tenant/homeowner to cease said nuisance, or surrender the property. (§ 10.02.03(b)(v)).

In addition, by entering into the Mutual Help and Occupancy Agreement, Ms. Townsend agreed to abide by all of its provisions, including policies and procedures established by the Port Gamble Housing Authority. The key provision cited by the Housing Authority in this matter is Section VI.B6, which states "Homebuyers/residents shall not engage in unlawful activities that could cause a disturbance to neighbors and the surrounding community. The Port Gamble S'Klallam Housing Authority shall maintain a record of all homebuyer/resident complaints. Three written complaints within a year will result in termination of lease or occupancy agreement. The tenant/homebuyer will be afforded appeal process." The Authority provided evidence that there had been more than three complaints of Nuisance and public disturbance within a year, thereby triggering the Authority's responsibility to terminate Ms. Townsend's MHOA. Ms. Townsend was afforded the opportunity to appeal, and did so.

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ISSUES ON APPEAL

1. What is the standard of review of this matter?

2. Were the Appellant's Due Process rights violated by the Housing Authority?

3. Did the Community Court err in its ruling in favor of the Respondent?

DISCUSSION

STANDARD OF REVIEW

The Port Gamble S'Klallam Tribe has adopted Title 7 of the Law & Order Code entitled "Appellate Proceedings." Section 7.03.03 of Title 7 states, "The Court of Appeals shall review the record of proceedings from the Community Court, appellate brief and oral argument in rendering its decision." This Court has reviewed said proceedings, as well as appellate briefs submitted by both parties. As stated above, this Court held oral arguments in this matter on June 23, 2004. All documents in the record have been reviewed and considered for the purposes of rendering this opinion.

DUE PROCESS

The Port Gamble S'Klallam Tribal government has enacted the Port Gamble S'Klallam Housing Authority Eligibility, Admission, and Occupancy Policies and Procedures ("Policies and Procedures") to ensure that housing matters are handled in a fair and consistent manner among homebuyers and renters. Before the Court is whether Appellant's right to due process under the Indian Civil Rights Act ("ICRA"), 25 U.S.C. §1302(8), was violated by the termination of her Mutual Help Occupancy Agreement ("MHOA") with the Housing Authority. Mutual help housing participants have a property interest in their homes which is protected by the ICRA. Navajo Housing Authority v. Helen Betsoi, No. A-CV-37-83 (Navajo 09/13/1985). Local housing authorities, such as the Housing Authority in this case, are bound, at minimum, by federally mandated grievance procedures as a result of Federal funding received by the United States Department of Housing and Urban Development ("HUD"). Thorpe v. Housing Authority, 393 U.S. 268, 274 (1969) (holding grievance procedures circulated by the HUD in pamphlet form, later codified as 42 U.S.C. 1437(d)(k), to be mandatory rather than advisory with regard to local housing authorities). The Federally-mandated grievance procedures serve as the basic skeleton of due process requirements under federally assisted Mutual Help Home Ownership Opportunity Programs. These procedures stipulate that "tenants will (1) be advised of the specific grounds of any proposed adverse public housing agency action; (2) have an opportunity for a hearing before an impartial party upon timely request … (3) have an opportunity to examine any documents or records or regulations related to the proposed action; (4) be entitled to be represented by another person of their choice at any hearing; (5) be entitled to ask questions of witnesses and have others make statements on their behalf; and (6) be entitled to receive a

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written decision by the public housing agency on the proposed action." 42 U.S.C. 1437 (d)(k), applied under similar circumstances in Chitimacha Housing Authority v. Gerry Martin No. CV-93-0006 (Chitimacha 09/01/1994) and Navajo Housing Authority v. Helen Betsoi. Outside of these requirements, Tribal Housing Authorities are further restricted only by their own guidelines and those set by the Tribe, which must be adhered to. Navajo Housing Authority v. Helen Betsoi. Further, the fact that in some instances a Housing Authority is giving "second, third, and fourth chances, where it had the right to evict," while not conclusive, is not to be overlooked in considering whether an appellant's rights under the IRCA have been violated. Indian Township Passamaquoddy Reservation Housing v. Donald Socobasin, No. P93-C-03 (Passamaquoddy, 07/04/1994), (eviction resulting from tenant's repeat violation of peaceful provision in his lease upheld).

The implications, policy, and procedures stemming from the creation of a public disturbance are clearly outlined in Section VI. B. 6. of the Authority's Policies and Procedures. Appellant was notified in a letter dated March 31, 1998, that one of the conditions of her occupancy agreement was that there were to be "NO violations of any kind from any family members" as defined by the rental housing agreements (emphasis in the original). In relevant part, the Procedures state that "homebuyers/residents shall not engage in unlawful activities that could cause a disturbance to neighbors and the surrounding community [and that] … Three written complaints in a year will result in termination of lease or occupancy agreement." The procedure and policy herein articulated were utilized by the Authority in this situation in a manner very generous to the Appellant, providing her with ample opportunities to come into compliance with the Agreement between the Housing Authority and herself. The ultimate termination of the Agreement appears to have been a last resort, which weighs against the alleged violation of Appellant's due process rights. See Id. However, the appearance of fairness is not a substitute for an in-depth analysis.

As noted in the Housing Authority's Conclusions of Law (see Amended 30-Day Notice of Termination), and affirmed here, the activities cited by the Authority and complained of by neighbors, including constant drumming and driveway blockage, violate the nuisance provisions of Title 10 of the Port Gamble S'Klallam Tribal Code. (§ 10.02.02(g) and 10.02.03(b)(v)). Consequently, creation of a nuisance in violation of these provisions constitutes an "unlawful activity" as that term is used in the Procedures. The record is replete with written complaints, numbering more than three, from neighbors chronicling the public disturbances that occurred over the course of Appellant's tenancy. Furthermore, the record clearly indicates that the Appellant was repeatedly informed of the specific grounds for the proposed termination of her occupancy agreement. See letters from the Housing Authority dated April 25 2000, January 25 2001, October 8 2002 and the Amended 30-Day Notice of Termination dated August 5 2003. These documents demonstrate that both the Housing Authority's own guidelines and the first of the Federal guidelines, 42 U.S.C. 1437(d)(k)(1), were satisfied in this case.

Pursuant to 42 U.S.C. 1437(d)(k)(2), Appellant in this case had the opportunity to be heard before an impartial party, which she invoked by requesting and going through a trial before

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the Tribal Court. Further, the record indicates that she acted through the representation of spokespersons, Mr. Lawrence Hawk at the Housing Authority grievance hearing and Ms. Judith Hunt before the Tribal Court, indicating both her knowledge of the right to be represented by a spokesperson and the preservation of this right as required by 42 U.S.C. 1437(d)(k)(4) and (5). The record also indicates that the Appellant had the opportunity to examine records and documents relevant to the grievance procedures in satisfaction of 42 U.S.C. 1437(d)(k)(3). Specifically, this opportunity is reflected in the minutes from the January 16, 2003, Housing Board meeting that indicate that Ms. Townsend not only had the opportunity to examine the substance of the complaints regarding her conduct, but also to rebut the content of relevant police records and in the multiple letters sent from the Housing Authority to the Appellant found in the record. Finally, an Amended 30-Day Notice of Termination was produced by the Housing Authority that cites the grounds for the termination of Appellant's agreement with the Authority in great detail and that includes both the findings of fact and law that were made by the Authority pursuant to the grievance hearing conducted before that body on January 16, 2003. This written decision satisfies the final prong of the Federal requirements under 42 U.S.C. 1437. Because we determine that the termination procedures followed by the Housing Authority satisfied both the Authority's own guidelines and the requirements laid out in 42 U.S.C. 1437(d)(k), this Court holds that Appellant's due process rights under the IRCA were not violated by the termination of her MHOA.

RULING OF COMMUNITY COURT

The ruling of the Community Court must stand unless it is determined that the decision by said Court was "clearly erroneous." (§7.03.04) The Appellant in this matter has alleged that the Community Court decision was erroneous due to the "lack of evidence to substantiate complaints [by neighbors]." (Appellant's Notice of Appeal).

This Court has reviewed the entire record from the proceedings and cannot find any evidence that the decision of the Community Court was made in error.

OATH OR AFFIRMATION OF WITNESSES

Pursuant to a review of the record, the Court notes that witnesses testifying before the hearing board in the January 16, 2003, grievance hearing conducted in this case appear not to have taken an oath or given an affirmation of any type prior to providing their testimony. Tradition dictates, and the Federal Rules of Evidence echo, that prior to testifying in any sort of judicial proceeding "every witness shall be required to declare that the witness will testify truthfully by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so." Fed. Rule Evidence. 603. Failure to require any sort of oath or affirmation can call into question the truth of a witnesses testimony and, ultimately, the validity of the entire proceeding. In general, a party's right to object to a court's failure to swear in a witness is waived if not made in a timely manner, Goforth v. State, 921 P.2d 1291 (OK CR, 1996), or noticed during the duration of the trial, Wilcoxon v.

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United States, 231 F.2d 384 (10th Cir. 1956), unless the failure to require an oath constitutes a plain error. U.S. v. Olano, 507 U.S. 725 (1993). A finding of plain error requires that defendant prove the following three criteria: (1) that the error was forfeited rather than waived, (2) that the error was plain, and (3) that the error affected the defendant's substantial rights (i.e., the outcome of the trial proceeding). Id.

Because the validity of the testimony given before the Housing Board in this case is not questioned and because this Court believes that the failure to require an oath or affirmation in this case did not rise to the level of plain error, it is only necessary at this time to recommend that the Housing Board implement, as standard procedure, some sort of oath or affirmation before allowing witnesses to testify. In addition, the Court recommends that as a matter of practice, all hearings before the Housing Authority are recorded for posterity. Ultimately, such small steps promote fairness, justice, and efficiency system-wide.

RELIGIOUS FREEDOM

Although not specifically stated as a ground for appeal, a reading of the record indicates that Appellant stated a defense of religious freedom, in that her exercise of the drumming and singing as a part of her worship in her church was protected by the Indian Civil Rights Act guarantee of freedom to practice her religion. To be fair to Appellant, although the court is not required to do so as it was not specifically raised in the notice of appeal, the court will address the issue. “Freedom of religion does not provide anyone with the right to conduct a true nuisance.” Wilkinson v. LaFranz, 574 So.2d 403 (La. 1991), also State ex rel Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975). The same result occurred in at least 20 other cases relating to both public and private nuisance. No cases were found that even hinted toward a contrary result. In interpreting the U.S. Constitution, which contains a freedom or religion clause, the U.S. Supreme Court held in Braunfeld v. Brown, 366 U. S. 599, 605 (1961), that the state may impose regulations that may have an indirect burden on practicing religion, in that case prohibiting retail stores from selling items on Sunday, even though it may affect persons practicing the Jewish religion, because they have as their Sabbath Saturday, and thus they wind up with two days they cannot run their stores, one prohibited by their religion, and one prohibited by the state. While the U. S. Constitution is not binding on Indian Nations, its guarantee of religious freedom may be looked to for guidance in Indian Civil Rights cases. No cases were found in Indian Nation decisions regarding freedom of religion under the Indian Civil Rights Act, so reference is made to the cases cited above. Therefore the court holds that the Port Gamble S’Klallam Tribe may enforce their nuisance ordinance, even though it may have an indirect effect on the practice of her religion by Appellant.

Similarly, Appellant claims that the activities which were found to constitute a nuisance are religious activities protected by the American Indian Religious Freedom Act (AIRFA), Pub.L. 95-341, 92 Stat. 469, 42 U.S.C. § 1996. However, this Act concerns and is directed toward actions of the federal government, not actions by a tribal government or one of its entities. The sponsor of the legislative bill which became AIRFA acknowledged that it does not

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“confer special religious rights on Indians,” or “change any existing State or Federal Law,” and that it “has no teeth in it.” In effect, AIRFA simply requires federal agencies to consider the effects of its actions on Indian religious practices. It does not provide a private cause of action or procedures for enforcement.

Finally, when ICRA protections are raised in a sensitive context, such as protection of tribal religious practices against unwarranted intrusions, the Court is compelled to examine whether the Tribe’s Constitution affords similar or greater protections. Article V – Bill of Rights, § 3, Civil Liberties, states, in relevant part, that “members of the Community shall enjoy without hindrance, freedom of worship, … speech, … assembly, and association.” This guarantee, however, does not mean that protection of religious activities is absolute. Decisions of the U.S. Supreme Court in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), Employment Division v. Smith, 494 U.S. 872 (1990), and Department Of Housing And Urban Development v. Rucker, et al., 535 U.S. ___ (2002), make clear that where the object of a law or regulation is not to prohibit or burden religious practices, or to coerce individuals into violating their beliefs, then a balancing of interests is not appropriate and individuals are not excused from complying with such law or regulation. Here, the purpose of the applicable law and regulation is to protect the health, safety and welfare of the community and its members, and the Appellant was given opportunity to comply or face the possibility of eviction.

ORDER

The Community Court’s decision is AFFIRMED and the appeal is dismissed. The stay of the Community Court is lifted and the Housing Authority may proceed with the eviction process against the Appellant.

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.