8 NICS App. 59, TEEMAN v. BURNS PAIUTE TRIBE (June 2008)
IN THE BURNS PAIUTE TRIBAL COURT OF APPEALS
BURNS PAIUTE INDIAN RESERVATION
BURNS, OREGON
Diane L. Teeman, Petitioner and Appellant,
v.
Burns Paiute Tribe, Respondent and Appellee.
No. CV-001-08 (June 23, 2008)
SYLLABUS*
Trial court ordered that a dog that bit the Tribe’s Police Chief without provocation be destroyed and, as a condition of the stay of that order pending appeal, the Appellant provide a bond to cover kenneling and veterinary costs and the costs of appeal. Court of Appeals holds that the trial court committed no errors of law or procedure, but in a companion opinion, holds that provisions of the tribal code requiring an appellant to pay the salaries and fees of judges and court staff violates the Tribe’s Constitution and the Indian Civil Rights Act. Trial court order affirmed with direction on the disposition of the appeal bond.
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Diane Teeman, pro se; Kenneth Bardizian, for Appellee. |
OPINION
Montoya-Lewis, J.:
This appeal came before the Burns Paiute Tribal Court of Appeals on May 30th, 2008 for oral argument. Diane Teeman, Appellant, appeared pro se and Kenneth Bardizian appeared as the Prosecutor for the Burns Paiute Tribe. Ms. Teeman filed a Brief in Chief and Mr. Bardizian filed an Answer Brief. No reply brief was filed with the Court. Based upon the briefs, the record in this matter (including the transcript of the hearing below), and the oral argument presented by the parties, the Court issues this Opinion.
8 NICS App. 59, TEEMAN v. BURNS PAIUTE TRIBE (June 2008) p. 60
I. DECISION ON THE MERITS
The matter presented to this Court arises from an incident on December 21, 2007 involving a dog and Chief Darrel Gilmer, who was called to #21 Lower Radar Base Road to remove a dog that was entangled in a chain on the porch of the home. The dog, who is called “Bob” and is referred to as “Bob Teeman” in the record, had gotten loose from his chain and then became tangled up in it on the porch of #21. When Chief Gilmer responded to the call and saw the dog on the porch, he entered the property and untangled the chain around the neck of the dog. The dog growled initially, but then seemed to be friendly. Chief Gilmer began to walk the dog toward his patrol car so that he could load the dog in the car and, presumably, impound it until its owner could be located. Initially, the dog seemed to come with Chief Gilmer, but then pulled back on the chain and bolted, stopping when he hit the end of the chain. At this point, Chief Gilmer turned to look at the dog, then turned his back on the dog and began pulling the dog toward the car. At this time the dog attacked Chief Gilmer, biting his leg, breaking the skin and causing puncture wounds. Following the bite, Chief Gilmer sought the help of Lonnie Teeman, who lives at #20 Radar Lane. Mr. Teeman, Diane Teeman’s partner, put the dog in the patrol car and Chief Gilmer took it to the Harney County Veterinary Clinic, where the dog has resided ever since.
On January 3, 2008 (the first day the court was open following the holidays), Diane Teeman filed a Motion to Release Animal from Impound seeking to prevent the dog from being destroyed. A hearing was held on January 4, 2008 to address Ms. Teeman’s motion. At that hearing, Judge Timko found that the dog was running at large, inflicted a bite on Officer Gilmer, and did so unprovoked. She found that Chief Gilmer took reasonable actions to secure the dog and that he undertook a lawful action to seize the dog. Based upon these findings, she ruled that the dog must be destroyed under the Burns Paiute Tribal Animal Control & Protection Code, Section 6-9-51.
Following that ruling, Ms. Teeman appealed the matter to this Court. In light of Ms. Teeman’s appeal, Judge Timko issued a stay on her order to destroy the dog, on condition that Ms. Teeman post a bond to cover kenneling and veterinary costs, as well as the costs of appeal pursuant to Section 1-1-291 of the Burns Paiute rules of Appellate Proceedings. Ms. Teeman avers in her appellate brief that she has posted a bond in the amount of two thousand four hundred and eight dollars ($2,408.00) to comply with these conditions set forth by the trial court.
Ms. Teeman raises many issues for this Court to review. She alleges that the trial court erred in making a pre-trial ruling that only evidence relating to the incident on December 21, 2007 would be allowed. She further alleges that Judge Timko did allow evidence of the dog’s prior behavior and based some of her factual findings on that testimony, which, Ms. Teeman argues, disadvantaged her case because she was not prepared with rebuttal testimony. Ms. Teeman also asserts that it was error when Judge Timko refused to exclude Chief Gilmer from the courtroom during testimony of other witnesses. She also argues that Judge Timko erred in
8 NICS App. 59, TEEMAN v. BURNS PAIUTE TRIBE (June 2008) p. 61
relying on Section 6-9-51 of the tribal code. In addition, she argues that Section 6-9-41 should not have been applied in this matter. Finally, she argues that her case was prejudiced by Chief Gilmer’s testimony in which he provided additional information not detailed in his police report.
The Court finds no error on these points. While Ms. Teeman asserts that the trial judge limited the testimony she would hear to the events of December 21st, a review of the trial transcript evinces no such ruling. Even if Judge Timko imposed such a limitation, it appears to this Court that such limitations would be acceptable and within the purview of the court’s discretion. However, since Ms. Teeman provides no evidence of this ruling; this Court can find no error on this point. Ms. Teeman also argues that Chief Gilmer should not have been allowed to remain in the courtroom prior to or following his own testimony. However, while it is generally accepted practice that witnesses do not hear other witnesses’ testimony, in this case, Chief Gilmer was essentially the client of the prosecutor and was likely needed in the courtroom so that Mr. Bardizian could consult with him during the hearing.
However, the court does find it necessary to address more fully the trial court’s ruling and interpretation of the tribal ordinance. Ms. Teeman argues that the trial court had no authority to order that the dog be destroyed under any provision of the Tribal Code. In particular, she argues that the court did not have authority under either the Burns Paiute Animal Control & Protection Code Section 6-9-41 or Section 6-9-51. Section 6-9-41 provides for the confiscation and euthanasia of a “vicious dog.” The Code defines a vicious dog as follows:
“Vicious dog” means any dog that when unprovoked:
(a) inflicts bites on a human or a domestic animal either on public or private property, or (b) chases or approaches a person upon the street, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, or any dog with a known propensity, tendency or disposition to attack unprovoked, to cause injury or to cause injury or otherwise to threaten the safety of humans or domestic animals. Burns Paiute Tribal Animal Control & Protection Code, Section 6-9-30(4).
The Code seems to consider three situations. First, a dog is a vicious dog when it bites a human (or animal) when unprovoked. Second, a dog is a vicious dog when it acts aggressively by chasing someone and menacing them by growling or appearing to attack. Finally, a dog is a vicious dog when it has a known propensity to attack when unprovoked. Burns-Paiute Tribal Animal Control & Protection Code, 6-9-30(4).
A dog that is found to be a vicious dog shall be confiscated and the Tribe has a right to destroy the vicious dog if it is unlicensed, not maintained in a proper enclosure or outside the dwelling, proper enclosure or physical control of a responsible person. Burns-Paiute Tribal Animal Control & Protection Code, 6-9-41. This section of the Code does not appear to grant
8 NICS App. 59, TEEMAN v. BURNS PAIUTE TRIBE (June 2008) p. 62
authority to the Tribe to destroy dogs that are not found to be vicious. Once a dog is found to be vicious, one of the three conditions must be present to allow the tribe to confiscate and destroy the dog.
However, Section 6-9-51, titled Enforcement Against Persons Subject to Tribal Criminal Jurisdiction, includes a provision that the Tribe claims provides it authority to destroy the dog regardless of whether it has previously been determined “vicious.” That section sets out the possible punishments available to the Tribe when it prosecutes Tribal citizens for violations of the animal control code. Following sections 1 – 3, the Code states:
Provided however: The original owner of any dog that aggressively attacks and inflicts harm to any person whether the dog has previously been declared a vicious dog, shall be guilty of a Civil Infraction punishable in accordance with 2-3-13 of the Civil Infraction Code. In addition, the dog shall be immediately confiscated by the Animal Control Authority, placed in quarantine for the proper length of time, and thereafter destroyed in an expeditious and humane manner.
Judge Timko found that the dog was aggressive and vicious and ordered that the dog be destroyed in accordance with the above section.
These two ordinances seem to provide two different avenues for addressing dogs that act aggressively. In Section 6-9-30(4) and 6-9-41, a dog may be determined to be vicious through three means and provides the tribe the right to destroy the animal. Alternatively, under Section 6-9-51, a dog that attacks a person, even though that dog had not been previously declared vicious, shall be confiscated and destroyed. We hold that Section 6-9-51 provides an alternative basis for the tribe when a dog has in fact attacked and harmed someone, whereas Section 6-9-30(4) provides for the euthanasia of the dog when it has either bitten someone or when it menaces someone.
Judge Timko took extensive testimony as to the circumstances of the bite. She found that Ms. Teeman knew that the dog had acted aggressively in the past; in fact, Ms. Teeman herself testified that the electric utility workers had complained that Bob had growled at them. She and others who were taking care of the dog penned him in an elaborate kennel. However, Judge Timko appears to have based her decision on the facts related to the incident on December 21, 2007, stating that “Either the dog was stressed and the fact that the dog was pinned on another person’s property, I make a factual finding that the dog was aggressive as being a vicious dog by statute and the aggressive finding is substantiated by both the fact that he did an unprovoked attack upon Chief Gilmer and his showing of aggression and growling towards Lonnie Teeman who is someone that Bob was familiar with.” Trial Transcript, 66, lines 2-6.
While the Court agrees that this dog had not been previously adjudged “vicious,” as Section 6-9-41 may require, the Court finds it was not error for Judge Timko to proceed on the
8 NICS App. 59, TEEMAN v. BURNS PAIUTE TRIBE (June 2008) p. 63
basis of Section 6-9-51. Ms. Teeman argues that Section 6-9-51 only applies when an infraction is issued against an individual for violation of the Animal Control & Protection Code. However, this Court finds that the language of the paragraph beginning “Provided however:” provides that an owner of a dog who attacks and inflicts harm shall be guilty of a civil infraction, but does not require that an owner must be charged in order for the provision requiring confiscation and euthanasia to apply. The sentence following the language regarding civil infractions states that confiscation and euthanasia shall apply “in addition” to the civil infraction. Here, there is some debate as to who is the true owner of the dog; ascertaining the correct party to cite may present a problem in this matter. Regardless, we hold that the issuance of a civil citation to the owner is not a prerequisite for the confiscation and euthanasia provision to apply.
Therefore, this Court finds no error in the proceedings and rulings of the trial court and affirms the trial court order to destroy the dog in an expeditious and humane manner. The stay imposed by the trial court on its own Order of January 15, 2008 is hereby lifted and the Tribe may proceed with the expeditious and humane destruction of the dog.
II. COSTS ON APPEAL
The Burns Paiute rules of Appellate Proceedings, Section 1-1-290, Costs of Appeal, states that “[t]he party initiating the appeal shall bear all costs for an appeal, including but not limited to court costs . . . . All costs may be awarded to the prevailing party.” Based upon this provision, this Court has been granted the authority to make a determination regarding the assessment of the costs of the appeal. This Court has significant concerns regarding the validity of code Sections 1-1-290 and 1-1-291, which collectively operate to impose on appellants the burden of paying, among other things, the judges’ fees and administrative fees and costs of the Court of Appeals. Therefore, this Court reserves the issue of costs and hereby orders additional briefing on the sole issue of whether it offends the Burns Paiute Constitution or any other source of tribal law to include "court costs" (Rule 1-1-290) and "any court costs and fees incurred" (Rule 1-1-291) in the definition of "all costs for an appeal" (rule 1-1-290) that may be charged to the appellant?
No later than July 18, 2008, each party shall, if it so chooses, file with the Court a supplemental brief addressing the sole issue of the validity of requiring an appellant to pay the costs of appeal as stated in Sections 1-1-290 and 1-1-291 of the Burns Paiute Appellate Proceedings rules. Each party shall serve a copy of its brief on the other party and file a declaration of service with its brief.
Any bond or monies Ms. Teeman paid to cover the costs of appeal shall continue to be held until this Court rules otherwise. However, the kenneling and veterinary costs shall be paid by Ms. Teeman as ordered by the trial court. Those kenneling and veterinary costs shall not be paid from the monies posted for covering the costs of the appeal.
8 NICS App. 59, TEEMAN v. BURNS PAIUTE TRIBE (June 2008) p. 64
OPINION AND ORDER ON COSTS (filed November 6, 2008)
Montoya-Lewis, J.:
This appeal came before the Burns Paiute Tribal Court of Appeals on May 30, 2008 for oral argument. This Court’s Opinion on the Merits of the appeal was entered on June 23, 2008. At that time, the Court requested further briefing on the issue of the Burns Paiute Appellate Rules requirement that the losing party in an appeal pay the entire costs of appeal. Both parties filed written briefs on that issue.
DISCUSSION
Under the Burns Paiute Appellate Proceedings Rules, Section 1-1-290 Costs of Appeal states that “[T]he party initiating the appeal shall bear all costs for an appeal . . . . All costs may be awarded to the prevailing party.” Based upon this provision, this Court agrees that it has the authority to make a determination regarding the assessment of the costs of the appeal. However, this provision raises significant questions that rise to the level of a constitutional issue.
In practical terms, this provision of the Appellate Rules means that if a party initiates an appeal against the Burns Paiute (as was the case in this matter), she is required to pay all costs of the appeal. In addition, Rule 1-1-291 requires an appellant to file a bond that includes “any court costs and fees incurred by the Tribal court in the event the matter is heard by justices of the Northwest Intertribal Court System . . . .” Thus, under these two rules, if an appellant loses her appeal, she is required to pay all the tribal court costs, including the fees and costs of the appellate judges.
In this case, the record shows that Ms. Teeman was required to post a bond that covered the estimated kenneling costs of the dog at issue, and also to pay an estimated amount of the costs of the appeal. She was required to post both prior to the appeal being filed. The Court sees no error in requiring Ms. Teeman to pay the costs associated with kenneling the dog. However, the Court is concerned that Ms. Teeman had to post a bond to cover the costs of the appeal and potentially would be required to reimburse the Tribe further since it appears certain that the costs of this appeal may exceed the posted bond.
Simply put, this provision places a significant obstacle in front of any party wishing to appeal a decision of the trial court. This raises questions of both equal protection and due process of law. While the United States Supreme Court has stated there is no federal constitutional right to appeal under the Due Process clause, Griffin v. Illinois, 351 U.S. 12, 18 (1956), we hold that when the tribal government provides a statutory right to appeal, it cannot do so in a way that arbitrarily prevents some litigants access to that right. See Griffin v. Illinois, 351 U.S. 12 (1956) and M.L.B. v. S.L.J., 519 U.S. 102 (1996).
8 NICS App. 59, TEEMAN v. BURNS PAIUTE TRIBE (June 2008) p. 65
For the most part, cost provisions in civil cases have been upheld. However, the cost provisions that have survived the rationality standard of review have generally been filing fees or costs for producing trial transcripts. In a case similar to this one, in which a bond of significant amount was required in a civil case, the U.S. Supreme Court held: “When an appeal is afforded, however, it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the Equal Protection Clause.” Lindsey v. Normet, 405 U.S. 56, 77 (1972) (holding unconstitutional an Oregon statute requiring appellants in unlawful detainer actions to post double surety bonds). In both M.L.B. v. S.L.J. and Lindsey, significant deprivations lay at the heart of each case (the termination of parental rights and eviction, respectively). Here, Ms. Teeman faces the loss of her dog. The loss of a dog does not rise to the level of the permanent loss of a child or the loss of a home. However, the effect of the costs provision in the Code essentially makes pursuing an appeal, regardless of type, risky at best and prohibitive for most appellants. Should an appellant lose an appeal under this provision, she runs the risk of paying for court costs in their entirety and no upper limit exists to ensure any litigant confidence in assessing the degree of financial liability she is potentially assuming.
Thus, the result is the provision of appeal only for those who can afford an unlimited appellate cost. Realistically, the only party clearly able to assume a significant risk like this one would be the tribal government itself. While tribal governmental budgets are always restricted, there is no question that the resources of the tribe exceed the resources of most individual litigants who might seek to appeal a decision in tribal court. The result is not just an unequal access to the courts but rather something more akin to access only to the government if it wishes to appeal a decision of the trial court.
It is clear from the case law that the government has a legitimate interest in reducing costs related to the judicial process. Here, however, we are not talking about a simple provision that provides for filing fees, transcript costs or other similar items that help to offset the cost of operating an appellate process. Rather, we are looking at a provision that shifts the entirety of the costs of the appellate process to the litigants. Such a provision bolts the doors to the courthouse to all but the wealthiest parties, something that cannot survive constitutional review under both equal protection and due process of law. M.L.B. v. S.L.J., 519 U.S. at 112 - 13.
Under the Burns Paiute Constitution, Article VII, Section 1, this Court has the authority “to review and nullify tribal legislative and executive actions which violate this constitution or the Federal Indian Civil Rights Act.” The tribal constitution expressly provides the right of “the equal protection of its laws” and “due process of law” to “any person.” Burns Paiute Constitution, Article VIII(h). This constitutional language is identical to language in the Indian Civil Rights Act. 25 U.S.C. § 1302(8).
In accordance with these requirements, we hold that the first sentence of Appellate Rule 1-1-290 and the portion of Rule 1-1-291 that requires an appellant to pay “any court costs and fees incurred by the Tribal court in the event the matter is heard by justices of the Northwest
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Intertribal Court System” to be in violation of the Burns Paiute Constitution and the Indian Civil Rights Act. Therefore, this Court hereby nullifies those provisions of Rules 1-1-290 and 1-1-291.
In her supplemental brief regarding the costs of the appeal, Ms. Teeman specifically asks to be relieved of paying the cost of producing the transcript because she alleges there was an error in the transcript. Ms. Teeman contends that testimony referenced in this Court’s Opinion on the Merits regarding complaints from electrical workers about her dog was incorrectly attributed to her. Ms. Teeman does not contest that the testimony was given or accurately transcribed. It does appear from a review of the transcript that the testimony was offered by Margaret Zacarias, not Ms. Teeman. Ms. Teeman failed to bring this error to the attention of the Court of Appeals in a timely manner. Despite having the opportunity to raise the issue in her brief on the merits, during oral argument, or in a motion to correct the transcript, Ms. Teeman waited to formally notify this court of the alleged error until this Court requested supplemental briefing on the issue of costs. Moreover, the alleged error was in no way prejudicial to Ms. Teeman. This Court’s Opinion on the Merits makes clear that Judge Timko’s legal conclusion that the dog was vicious was based not on the mis-attributed testimony, but rather on the findings that the dog inflicted an unprovoked attack on Chief Gilmer and then continued to display aggression towards Lonnie Teeman. Because Ms. Teeman failed to timely notify the Court of Appeals regarding the error in the transcript, and because the error in the transcript was not prejudicial to her, we deny her request that she be relieved the cost of preparing the transcript.
Ms. Teeman also asks to be relieved of paying one month of the kenneling fees because, she alleges, the proceedings were delayed a month while the transcript was being produced. The Court of Appeals did extend the briefing deadlines in this matter because the transcript was not made available to the Appellant before the thirty day deadline set in the Tribe’s appellate rules for the Appellant to file her opening brief. We hold that it is not reasonable for the Tribe to set a thirty day deadline for an Appellant to file a brief and then take thirty days to prepare a transcript that the Appellant needs to produce that brief. However, granting Ms. Teeman’s request that she be relieved from one full month’s worth of kenneling costs would suggest that the transcript should have been produced the day that Ms. Teeman filed her notice of appeal, which is also not reasonable. We note that the Chehalis Tribal Code, § 6.07.010, provides the tribal court clerk fourteen days to produce a transcript. We also note that the transcript for this proceeding was only seventy four pages. We hold that fourteen days should have been sufficient to produce the transcript for this appeal and that the transcript therefore should have been provided to Ms. Teeman no later than February 8, 2008. Because the transcript was not made available to Ms. Teeman until February 22, 2008, she shall not be held responsible for those two weeks worth of kenneling costs.
8 NICS App. 59, TEEMAN v. BURNS PAIUTE TRIBE (June 2008) p. 67
CONCLUSION AND ORDER
The Appellant, Ms. Teeman, shall bear the costs of the preparation of the transcript, the cost of any rabies shot that may have been administered pursuant to Judge Timko’s Order, and the actual costs of kenneling the dog except for the period of February 9 through February 22, 2008, inclusive. Ms. Teeman shall not bear the costs or fees of any of the judges or court staff involved in reviewing this appeal, including the administrative fees and professional services fees of the Northwest Intertribal Court System. The clerk of the Court shall prepare a bill of costs consistent with this Order and provide Ms. Teeman with a refund or an invoice, as appropriate, for the difference between the bill of costs and any funds Ms. Teeman has provided by way of bond or deposit.
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.