LOWER ELWHA HOUSING AUTHORITY v. CHARLES

8 NICS App. 30, LOWER ELWHA HOUSING AUTHORITY v. CHARLES (August 2007)

IN THE LOWER ELWHA KLALLAM TRIBAL COURT OF APPEALS

LOWER ELWHA KLALLAM INDIAN RESERVATION

PORT ANGELES, WASHINGTON

Lower Elwha Housing Authority, Petitioner and Appellee,

Monica Charles, Respondent and Appellant.

No. CV 06-07-003 (August 20, 2007)

SYLLABUS^*

Trial court issued order of eviction and writ of restitution in favor of the Housing Authority. Court of Appeals, noting that there is no evidence establishing that the trial court judge is Indian, as required by this tribe’s code, grants the Housing Authority motion to vacate the trial court order and dismisses the appeal as moot.

Before: Lisa Atkinson, Chief Judge.

OPINION

The Court of Appeals has before it the Motion of Lower Elwha Housing Authority for Vacation of Tribal Court Judgment and Other Relief. The Motion requests that this court vacate the trial court judgment in this matter and dismiss both the Housing Authority’s original civil complaint and the appeal pending herein, or in the alternative, direct the trial court to do so or enter such other order as the Court of Appeals deems appropriate to achieve these ends. The Motion appears to be motivated by the Housing Authority’s concern that the trial court was not “properly constituted.” As the Court of Appeals noted in its Order accepting this appeal, the Lower Elwha Court Procedures Ordinance, Section 1.7, requires Lower Elwha judges to be Indian and, to the best of this Court’s knowledge, the trial judge in this matter is not Indian.

The Lower Elwha Court Procedures Ordinance, Section 7.M.3, provides that the Chief Appeals Judge may rule on a motion alone.

The Court of Appeals grants the Motion. Without briefing or evidence that demonstrates that the trial judge is Indian and therefore qualified to serve as a judge of the Lower Elwha Tribal Court, a remand to the trial court to vacate its own order would not be appropriate. Unless issued by a judge who is Indian as required by the Tribe’s Court Procedures Ordinance, the trial court’s

8 NICS App. 30, LOWER ELWHA HOUSING AUTHORITY v. CHARLES (August 2007) p. 31

Order of Eviction is void ab initio, and any subsequent order issued by the same judge would likewise be void and without any force or effect.

Based on the foregoing, the Findings of Fact, Conclusions of Law and Order of Eviction , Quieting Title and Directing the Issuance of a Writ of Restitution and Other Relief dated August 15, 2006 is declared void and vacated. Any Writ of Restitution that may have been issued based on this Order is also declared void. The Complaint of the Housing Authority dated July 3, 2006 is dismissed without prejudice. Because the Complaint is dismissed and the Order of Eviction vacated, Ms. Charles’ appeal is now moot and therefore dismissed.

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.