8 NICS App. 68, SKOKOMISH INDIAN TRIBE v. CULTEE (June 2008)
IN THE SKOKOMISH TRIBAL COURT OF APPEALS
SKOKOMISH INDIAN RESERVATION
SKOKOMISH, WASHINGTON
Skokomish Indian Tribe, Respondent,
v.
Marvin Cultee, Appellant.
No. SKO-Cr-12/-6-200 (June 25, 2008)
SYLLABUS*
Trial court denied criminal Defendant’s motion to suppress evidence and found Defendant guilty of possession of a controlled substance. Court of Appeals holds that the trial court had the authority to issue a warrant for arrest based on Defendant’s failure to appear at a compliance hearing for a prior conviction and that the arrest was therefore permissible and the evidence seized incident to the arrest admissible. Trial court order affirmed.
Before: Eric Nielsen, Chief Judge; Daniel A. Brown, Judge; Leona Colegrove, Judge.
Appearances: Ric Kilmer, Skokomish Prosecuting Attorney for Respondent; Desmond Kolke, attorney/spokesperson for Appellant, Marvin Cultee.
OPINION
Nielsen, J.:
I. Factual Background and Procedural History
The facts are undisputed. The trial court entered post-conviction orders following Marvin Cultee’s criminal convictions and scheduled periodic review hearings to monitor Mr. Cultee’s compliance with those orders.1 On October 12, 2007, Mr. Cultee signed a written promise to appear at a November 9, 2007 review hearing and was told his failure to appear could result in his arrest. Mr. Cultee failed to appear at the hearing and the trial judge issued a warrant for his arrest for his failure to appear.
8 NICS App. 68, SKOKOMISH INDIAN TRIBE v. CULTEE (June 2008) p. 69
Mr. Cultee was subsequently arrested on the warrant. He was searched incident to the arrest and police found illegal drugs. Based on the drugs found during the search, Mr. Cultee was charged with possession of a controlled substance for personal use under Skokomish Tribal Code (STC) 9.09.040(a).
Mr. Cultee moved to suppress the drugs on the grounds the trial court did not have the authority to issue an arrest warrant based on Mr. Cultee’s failure to appear at the November 9, 2007 hearing.2 The trial judge denied the motion. Mr. Cultee stipulated to facts and preserved his right to appeal the suppression issue. Based on the stipulated facts, Mr. Cultee was found guilty.
Mr. Cultee now appeals the trial court’s order denying his suppression motion. We affirm.
II. Standard of Review
The Skokomish Tribal Code does not specify the standard of review of trial court decisions. In the absence of a court rule or tribal law, we look to persuasive and well-reasoned decisions from other jurisdictions for guidance.
The majority of appellate courts review trial court decisions under one of the three standards depending on the issues. “For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion’).” Pierce v. Underwood, 487 U. S. 552, 558, 108 S. Ct. 2541, 2546 (1988); Dodge v. Hoopa Valley Gaming Commission, 7 NICS 51 (Hoopa Valley Tribal Ct. App. 2005). Accord Raymond Johns and Leslie McGhee v. Gracie Allen, 6 NICS App. 196, 196 - 197 (Skokomish Tribal Ct. App. 2004) (“In the absence of any specified standard of review, we review issues of fact under the “clearly erroneous” standard and issues of law de novo.”)
Appellant argues that under the Rules for the Skokomish Tribal Court, STC 3.01.072, the trial judge did not have the authority to issue a warrant for his arrest based on his failure to appear at the review hearing. Respondent argues the trial judge had the authority to order Appellant’s arrest under STC 3.01.012. The interpretation of a statute is a question of law that appellate courts review de novo under an error of law standard. Jeldness v. Pearce, 30 F.3d 1220, 1222 (9th Cir. 1994); Muckleshoot Indian Tribe v. Washington Dept. of Ecology, 112 Wn.App. 712, 720, 50 P.3d 668 (2002). Because our decision requires interpreting the above
8 NICS App. 68, SKOKOMISH INDIAN TRIBE v. CULTEE (June 2008) p. 70
code provisions, we review that part of the trial court’s decision that it had authority to order Appellant’s arrest de novo under the error of law standard.
III. Decision
A court’s primary duty in interpreting any legislation is to discern and implement the intent of the legislative body. Nat'l Elec. Contractors Ass'n v. Riveland, 138 Wn. 2d 9, 19, 978 P.2d 481 (1999). The language of a code provision or statute provides "the most reliable evidence of [the legislature’s] intent." United States v. Turkette, 452 U.S. 576, 593, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). The starting point must always be the legislation’s plain language and ordinary meaning. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). In interpreting a statute, however, courts consider not only the meaning of the critical word or phrase but also its purpose in the statutory scheme. Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).
STC 3.01.072(a) provides:
A tribal judge shall have authority to issue an arrest warrant when presented with a complaint which shows that probable cause exists to issue an arrest warrant when presented with a complaint which shows that probable cause exists to believe the person named in the complaint has committed an offense under tribal law.
Appellant argues the plain language of the above provision limits the tribal judge’s authority to issue an arrest warrant to only those circumstances where a complaint is filed and there is probable cause to believe the person named in the complaint has committed the offense.3 Appellant contends that because the trial judge ordered his arrest for his failure to appear at a review hearing and not on the basis of a complaint alleging an offense, the trial court exceeded its authority and the warrant was illegal. Appellant reasons that because the arrest warrant was illegal, the search incident to his arrest was illegal and the drugs, which were uncovered during that search, should have been suppressed.
Appellant is correct if STC 3.01.012(a) is the only code provision authorizing the trial judge to order an arrest. Respondent, however, argues it is not. Respondent contends tribal judges also have the authority to order an arrest under STC 3.01.012(a). Respondent also does not concede that these are the only situations in which a tribal judge could execute a warrant relying on STC 3.01.012(a), which provides:
8 NICS App. 68, SKOKOMISH INDIAN TRIBE v. CULTEE (June 2008) p. 71
Whenever the tribal court has jurisdiction over a person and subject, it shall also have the power to use reasonable means to protect and carry out its jurisdiction. If the means to enforce its jurisdiction are not spelled out in these rules or in the tribal code, the court may use any appropriate procedure that is fair and consistent with the spirit of the tribal law which is being applied.
Under STC 3.01.012(a), the Tribe’s legislative body has given the tribal judge power and authority to use “reasonable means to protect and carry out its jurisdiction.” That authority is properly exercised if the means to enforce “its jurisdiction are not spelled out” in the court rules or tribal code and the means used are an “appropriate procedure that is fair and consistent with the spirit of the tribal law which is being applied.”
We find STC 3.01.072(a) was not intended to be the exclusive circumstance where a tribal judge is authorized to order an arrest, thus running into conflict with the “not spelled out in these rules or in the tribal code” section of STC 3.01.012(a). See STC 3.01.074 (court authorized to order an arrest where a person fails to respond to a summons to appear). The primary purpose of that provision is to grant the tribal judge authority to order an arrest when a complaint has been filed accusing a person of committing an offense. Because an arrest is an infringement on a person’s fundamental right to liberty, where there is only an allegation of criminal wrong-doing, it makes sense the legislative body specifically granted the tribal judge the authority to infringe on a person’s liberty interest by ordering an arrest only when certain criteria are met. See, Baker v. McCollan, 443 U.S. 137, 144, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979) (where the Supreme Court recognized that an individual has a liberty interest in being free from incarceration absent a criminal conviction).
However, after a conviction, a person has no interest in being free from authorized and constitutional liberty restraints. See, Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) (once defendant is convicted, he is constitutionally deprived of the liberty interest in being free from confinement). Under the Skokomish Tribal Code, the court has broad discretion, post-conviction, to order confinement as well as community service, alcohol-abuse counseling, restitution and other sentencing alternatives. STC 9.11.010. The court must have the power to enforce a valid post-conviction order, otherwise a convicted person could ignore the court’s order with impunity, which would render the court’s authority under STC 9.11.010 meaningless.
The primary mechanism for enforcing jurisdiction over a person is the court’s ability to compel the person to appear.4 Under STC 3.01.012(a), the Tribe’s legislative body has given the tribal court the power to enforce its jurisdiction where there are no other means “spelled out” in
8 NICS App. 68, SKOKOMISH INDIAN TRIBE v. CULTEE (June 2008) p. 72
the court rules or tribal code.5 There is no court rule or tribal code that “spells out” the court’s authority to compel a person’s appearance to monitor compliance with a post-conviction order. Based on the plain language in STC 3.01.012(a), we hold it was the intent of the Tribe’s legislative body to grant the tribal judge the authority to order an arrest and compel future attendance if a person fails to appear at a hearing to review or monitor compliance with a post-conviction order because such power is a “reasonable means to protect and carry out” the court’s jurisdiction.
Moreover, finding STC 3.01.012(a) gives the tribal judge the power to order a person’s arrest in circumstances other than when a formal criminal complaint has been filed harmonizes STC 3.01.072(a) and STC 3.01.012(a). STC 3.01.072(a) is limited by its terms to the issuance of an arrest warrant before the person has been convicted of any offense. STC 3.01.012(a) is read to grant the tribal judge authority to order an arrest post-conviction because it makes no sense that the Tribe’s legislative body would give the court the power to order an arrest where there is only an allegation of criminal wrong-doing but deny it that ability to enforce its post-conviction orders. See, Pacific Mut. Life Ins. Co. v. American Guar. Life Ins. Co., 722 F.2d 1498, 1500 (9th Cir.1984) and State v. Chapman, 140 Wn.2d 436, 448, 998 P.2d 282, cert. denied, 531 U.S. 984, 121 S.Ct. 438, 148 L.Ed.2d 444 (2000) (statutes should be read together so as to achieve a harmonious statutory scheme that maintains the integrity of each).
Although the “reasonable means to protect and carry out” language in STC 3.01.012(a) includes the authority to order an arrest, the tribal court’s decision to do so depends on whether the arrest warrant is an “appropriate procedure that is fair and consistent with the spirit of the tribal law which is being applied.” STC 3.01.012(a). Thus, ordering a person’s arrest under STC 3.01.012(a) is only justified if the order is appropriate and fair given the circumstances of the case.
To determine whether an arrest order is appropriate and fair given the spirit of the tribal law being applied depends on the totality of the circumstances. A decision based on the totality of the circumstances necessarily rests on the unique facts of the case. We do not decide all the circumstances where it is appropriate and fair for the tribal judge to order an arrest under STC 3.01.012(a) through the use of a warrant, nor do we identify all the factors the tribal judge should consider when making the determination. Where, however, a person fails to appear at a hearing to review or monitor compliance with valid post-conviction orders, at a minimum consideration should be given to whether the person has failed to appear at previous scheduled hearings, the reason for the hearing, whether the person signed a promise to appear at the hearing, and whether the person was put on notice the failure to appear could result in the issuance of an arrest warrant. Because a totality of the circumstances analysis involves factual findings, a tribal judge’s decision to order an arrest pursuant to a warrant under STC 3.01.012(a) is reviewed under the abuse of discretion standard. See, State v. Garza, 150 Wn.2d 360, 366, 77 P.3d 347
8 NICS App. 68, SKOKOMISH INDIAN TRIBE v. CULTEE (June 2008) p. 73
(2003) (“The abuse of discretion standard is appropriate when a trial court is in the best position to make a factual determination”).
Here, the record shows the purpose of the hearing was to review Mr. Cultee’s compliance with the tribal judge’s post-conviction orders. Mr. Cultee signed a promise to appear at the November 9, 2007 hearing and was told his failure to appear could result in his arrest. The record does not show if Mr. Cultee failed to appear for previous hearings or the terms of the post-conviction order. Given the record on appeal, under these circumstances the judge did not abuse her discretion when she ordered Mr. Cultee’s arrest for failing to appear at the November 9, 2007 hearing.6
We hold STC 3.01.012(a) grants the tribal court the authority to order an arrest through warrant as a reasonable means to protect and carry out its jurisdiction but only where under the totality of the circumstances the order is appropriate and fair under the spirit of tribal law.7 We affirm the tribal judge’s ruling denying Appellant’s suppression motion.
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.
The orders were not made part of the record on appeal.
At oral argument, counsel for Respondent agreed that if the court did not have the authority to order Appellant’s arrest, all evidence seized during the search incident to the arrest should be excluded.
Appellant was later charged with the criminal offense of failure to appear under STC 9.08.070 based on his failure to appear at the November 9, 2007 review hearing.
Appellant does not argue the court’s orders and/or the periodic review hearings to ensure compliance with those orders exceeded its authority.
We do not determine the entire scope of the tribal court’s authority under STC 3.01.012(a).
Appellant argues in the alternative the arrest warrant was invalid because it failed to specify the offense violated and fails to cite the corresponding section of the tribal code as required by STC 3.01.072(a). Because the arrest warrant was not issued under STC 3.01.072(a), its requirements do not apply and Appellant’s argument fails. Furthermore, the arrest warrant specified the reason for the warrant was Appellant’s failure to appear at the November 9, 2007 hearing and it contained adequate information to allow a police officer to identify Appellant as the person named in the warrant.
Under STC 3.01.012 (e), “Judges and the administrator of the tribal court have a duty to tell the Skokomish tribal Council which additional rules are needed to govern common procedural questions faced by the court.” We strongly urge the Skokomish Tribe to adopt clearer rules governing the tribal court’s authority to order an arrest through warrant in circumstances other than those identified in STC 3.01.072(a). Given our holding in this case, a tribal judge is required to analyze whether to order an arrest through warrant under STC 3.01.012 (e) on a case-by-case basis, which will consume the court’s resources and likely result in appeals. Such a case-by-case analysis would not be necessary, however, if the tribal code identified those circumstances where the judge is authorized to order an arrest consistent with the Tribe’s Constitution, the Indian Civil Rights Act and Skokomish tradition. Additionally, it is incumbent on the Tribe to ensure its codes are complete and clear. Complete and clear laws and court rules maintain tribal sovereignty because they allow tribal judges to better apply the Tribe’s laws as intended and they allow litigants and tribal members to better predict the effect of those laws.