9 NICS App. 33, SKOKOMISH TRIBE v. SMITH (October 2009)

IN THE SKOKOMISH TRIBAL COURT OF APPEALS

SKOKOMISH INDIAN RESERVATION

SKOKOMISH, WASHINGTON

Skokomish Indian Tribe, Plaintiff and Appellee,

v.

John Smith, Defendant and Appellant.

No. 08-3668 (October 12, 2009)

SYLLABUS^*

Trial court issued order finding non-Indian defendant guilty of speeding on a state highway right-of-way passing through the tribe’s reservation. Court of Appeals holds that (1) trial court erred by failing to conduct a formal fact-finding hearing and committing other procedural errors; (2) the trial court judgment was not supported by evidence in the record; and (3) the Tribe failed to introduce evidence sufficient to establish tribal jurisdiction over a non-Indian. Trial court order reversed.

Before:            Eric Nielsen, Chief Judge; Lisa L. Atkinson, Judge; Leona T. Colegrove, Judge.

Appearances:  Lori Nies, Skokomish Tribal Attorney; John Smith, pro se.

OPINION

Per Curiam:

John Smith appeals the trial court’s April 23, 2009 oral ruling finding John Smith guilty of speeding.

We REVERSE the trial court’s order.

I. Factual and Procedural History

The Skokomish Tribal Police issued John Smith, a non-Indian resident of Hoodsport, Washington, a Notice of Infraction (NOI) dated October 7, 2008, for “speeding in a posted school zone.” The infraction identified the location of the offense as “Hood Canal School Zone”

9 NICS App. 33, SKOKOMISH TRIBE v. SMITH (October 2009) p. 34

in Skokomish. The police officer’s “Law Screen” (report), which the Tribe did not submit as evidence, indicates that the alleged infraction occurred on SR 106. SR 106 is a Washington State highway that passes through the Skokomish Reservation on a state-owned right of way. Skokomish v. Mosbarger; Skokomish v. Parsons, 7 NICS App. 90, 91 (Skokomish Tribal Ct. App. 2006).

Smith contested the NOI and appeared for a duly noted hearing before the Skokomish Tribal Court on April 9, 2009. Neither the police officer nor the Tribal Attorney nor anyone else appeared on behalf of the Tribe. Smith indicated that he did not believe the Tribe had jurisdiction over him. The judge, on her own initiative, continued the hearing to April 23, 2009.

The Tribal police officer did not appear at the April 23 hearing, although the Tribe was represented by the Tribal Prosecutor. Rather than conduct an evidentiary hearing, the Judge conducted the proceeding as if it was an appellate oral argument, allowing Smith to present his challenges, allowing the Tribe to respond, and giving both sides time for rebuttal. The Judge did not swear in witnesses or take evidence.

Smith challenged the NOI on the following grounds:

The Tribal Prosecutor argued that tribal jurisdiction existed under Skokomish v. Mosbarger, supra. There, the Skokomish Tribal Court of Appeals found that a non-Indian motorist speeding in the Hood Canal School Zone was subject to tribal jurisdiction.^** During the April 23 hearing on Smith’s citation, the Prosecutor, although not sworn as a witness, stated Smith’s alleged speeding occurred “in a noticed school zone in the morning when numerous tribal children are in school.” (4/23/09 audio CD, at 12:19:00.) In fact, the officer’s report indicates that the infraction occurred at 3:05 p.m., and no evidence was introduced that any children were present at the time.

In rebuttal, Smith argued that if the officer’s report has mistakes and there are factual discrepancies between the NOI and the report concerning the date, rate of speed, etc. (as there were), then all of the factual assertions in the NOI were questionable and the failure of the officer to appear and testify should result in dismissal. Smith also noted the Tribe’s jurisdictional argument ignored his claim the failure of the sign to comply with standards deprived him of adequate notice. Finally, Smith emphasized his former career as a Washington State Trooper, his commitment to safe driving and his spotless driving record, and stated “I don’t speed.”

In her rebuttal, the Tribal Prosecutor again made factual assertions even though she was not sworn as a witness, stating that it was “her belief the Tribe had complied” with posting requirements (the sign is in fact a State of Washington sign); that “Mr. Smith did not ask to look at the radar screen;” and that “Officer Newton is well aware of how to use a radar gun … he is an officer with lots of experience (inaudible) and lots of experience using a radar gun.”

In issuing an oral ruling of guilty from the bench at the conclusion of the hearing, the judge informed Smith that the bases for her ruling were that there was “no testimony contesting that you were speeding, Mr. Smith” and that she “found your [Smith’s] argument to be that the Tribe basically didn’t have jurisdiction over non-Natives that speeded in that area.”

Smith timely appeals the oral ruling. Smith argues that he was not speeding and asserts the following issues on appeal:

9 NICS App. 33, SKOKOMISH TRIBE v. SMITH (October 2009) p. 35

Although not explicitly argued, the notice of appeal also raises the following issues:

II. Standard of Review

“The Skokomish Tribal Code is silent regarding the standard for appellate court review of a trial court decision. 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.” Johns and McGhee v. Allen, 6 NICS APP. 196 (Skokomish Tribal Ct. App. 2004). The question whether the Skokomish Tribe has civil jurisdiction over the conduct of non-Indians within the reservation’s border is a question of law which we review de novo. Compare Smith v. Salish Kootenai College, 434 F.3d 1127, 1130 (9th Cir. 2006 (en banc) (‘The question of tribal court jurisdiction is a federal question of law, which we review de novo.”)

III. Analysis

A.    The Trial Court Committed Procedural Error

The trial court erred by failing to conduct a formal evidentiary hearing. The Skokomish Civil Traffic Ordinance states “the burden of proof is upon the Tribe to establish the commission of the infraction by a preponderance of the evidence.” STC 8.63.090(c). The ordinance specifies that the court should rule “after consideration of the evidence and argument.” STC 8.63.090. We find that these provisions require an evidentiary hearing where the Tribe has an obligation to actually produce evidence. Here, the Tribe presented no evidence whatsoever, with the possible exception that the NOI itself became part of the evidentiary record by the mere act of it having been issued.

9 NICS App. 33, SKOKOMISH TRIBE v. SMITH (October 2009) p. 36

The trial court also erred when it failed to provide Smith instructions on how to request the appearance of the officer that issued the citation. While Section 3.01.009 of the Skokomish Tribal Code provided Smith the right to subpoena the officer and describes the process for doing so, the back of the citation issued to Smith expressly states “the court will tell me how to request a witness’s appearance.” Moreover, “[t]he rules of procedure for the Skokomish Tribal Court shall be liberally interpreted and applied to achieve the following purposes; revealing the truth, treating all parties fairly and without prejudice, protecting individual rights guaranteed by the Indian Civil Rights Act and the Skokomish tribal constitution, resolving disputes efficiently.” STC 3.01.012(b).

Smith asked for a contested hearing. He was therefore entitled to be notified on how he could request a witness’s appearance as promised on the citation. Smith pointed out a number of errors between the NOI and the officer’s report, but without the officer’s presence, Smith could not explore those errors because his accuser could not be confronted and subjected to cross examination. Although neither Smith nor the Tribe had an obligation to subpoena the officer, Smith was nonetheless specifically promised on the citation that he would be told how he could procure the officer’s presence. It was his decision whether to subpoena the officer. He was not in a position, however, to make that decision because the court failed to tell him how to accomplish that task. Any notion of fairness requires nothing less. If we did not dismiss on other grounds we would have remanded for a new hearing based on this issue.

The Skokomish code provides for discovery to be initiated at the request of one of the parties, not by the Court. STC 3.01.060. We hold that ordering Smith to provide disclosure to the Tribe was not error in itself, however, failing to order formal discovery or issue a reciprocal order directing the Tribe to disclose its evidence, argument or documentation to Smith does not promote fairness to all parties as required by STC 3.01.012(b). We note that the written materials the Judge ordered Smith to disclose were public records, including the Tribe’s own motion in the Sheldon case.

We also question whether the judge exercised proper discretion in continuing the hearing sua sponte when the Tribe failed to appear for the original hearing on April 9.  If it had been Smith rather than the Tribe that had failed to appear, the code would have required the entry of a default judgment against Smith. STC 8.63.070(e)(2). We find no explicit grant of authority in the code for the judge to continue a contested hearing where the Tribe, appearing as the Plaintiff, fails to appear.  Interpreting the Tribe’s civil rules in such a way that a defendant’s failure to appear is punished with the ultimate sanction, whereas a plaintiff’s failure to appear is excused without even requiring a showing of good cause, does not appear to promote the purpose of “treating all parties fairly and without prejudice” as required by STC 3.01.012(b). However, because we are not prepared to rule that a trial judge may never continue a hearing sua sponte, and because we overrule the judgment in this case on other grounds, we need not decide here if the judge’s sua sponte continuance constitutes an abuse of discretion.

9 NICS App. 33, SKOKOMISH TRIBE v. SMITH (October 2009) p. 37

B.       The Judgment Is Not Supported by Evidence in the Record

We hold the evidence does not support the court’s judgment that Smith violated Tribal law because the Tribe failed to establish that the speed limit sign complied with relevant legal standards. The Skokomish Tribal Code provides, “[i]t is unlawful for the operator of any vehicle to operate the same at a speed in excess of twenty miles per hour upon a highway when passing any marked school or playground zone when the marked school or playground zone is fully posted with standard school speed limit signs or standard playground speed limit signs.” STC 8.61.440 (emphasis added). The Skokomish Tribal Code also requires signs to be “in the proper position.” STC 8.61.050(b). Smith introduced uncontested evidence the signs were not “standard” or in the proper position at the time of his citation, including evidence that subsequent to his citation, the State of Washington, the entity responsible for posting the signs, replaced and relocated the signs as a result of complaints received. The Tribe introduced no evidence that the signs met applicable standards or were in the proper position at the time of Smith’s citation.

Under Skokomish Tribal law, Smith could only be found guilty of the infraction if he was speeding in excess of the posted school zone speed limit and the school zone was posted with standard signs in the proper position. STC 8.61.440; STC 8.61.050(b). Because the uncontroverted evidence shows the sign was not standard or in the proper position, there was insufficient evidence to support the trial court’s finding that Smith was guilty of speeding in a posted school zone.

An additional consequence of the judge’s failure to hold an evidentiary hearing is that Smith was not afforded the opportunity to provide testimony contesting the citation. Nonetheless, Smith stated on the record “I do not speed.” More importantly, the box checked by Smith on the citation states “I did not commit the infraction.” Where evidence becomes part of the record, the averments contained therein by the accused should be given as much weight as the evidence therein against the accused. Despite the lack of opportunity to provide sworn testimony, because Smith stated on the record “I do not speed” and signed a written statement that “I did not commit the offense” which became part of the record, the trial judge’s conclusion that Smith failed to contest that he actually had been speeding is clearly erroneous.

C.       Jurisdiction

We also take this opportunity to address the serious issue of the court’s failure to hold an adequate evidentiary hearing and the Tribe’s failure to present any evidence as they relate to the issue of tribal jurisdiction over a non-Indian. We do so to provide both the Court and the Tribe with guidance.

We agree with the Tribe’s assertion that the “outcome of [the] jurisdictional inquiry is driven by the facts” of the case (Tribe’s Brief, at 4) and that a “particularized review of the facts” is necessary (Id. at 2). The rule applicable to issues of tribal civil jurisdiction over non-Indians

9 NICS App. 33, SKOKOMISH TRIBE v. SMITH (October 2009) p. 38

and their activities on reservation is found in Montana v. United States, 450 U.S. 544 (1981). Under the holdings in Skokomish v. Mosbarger and Skokomish v. Parsons, supra, application of the Montana test in this case is fact specific and depends in large part on whether Smith was speeding in a school zone and whether tribal members or tribal member children were attending school at the time. Mosbarger, 7 NICS App. at 94-102. The court’s failure to conduct an adequate evidentiary hearing and the Tribe’s failure to introduce any relevant evidence does not support the Tribe’s assertion of jurisdiction on the grounds that “tribal member children…attend the Hood Canal School,” (Tribe’s Brief at 1), or that the Hood Canal School “is the only elementary school located on the Reservation,” (Id.) or that “most, if not all, Skokomish tribal member children residing on the Reservation attend” the Hood Canal School (Id. at 1-2).

Furthermore, there is no evidence in the record that school was in session on the date or time of the citation, no evidence regarding whether children were inside the school or out on the grounds at the time of the citation, no evidence that a single Skokomish Tribal member attends or works at the Hood Canal School, no evidence on the proximity of the school to the site of the infraction, and no evidence on whether any fences or other safety barriers separate the children from the right of way.¹

Absent more factual evidence, we are unable to determine whether one of the two recognized Montana exceptions apply, thereby granting the Tribe civil jurisdiction over Smith, a non-Indian, for his activities on the reservation. Before the court could conclude Tribal jurisdiction was proper, it was incumbent that it hold an adequate evidentiary hearing to determine whether those facts necessary to assert jurisdiction under one of the Montana exceptions were present. On this record, it is impossible to conclude the Tribal Court had jurisdiction.

IV. Conclusion and Order

We hold that the trial court committed procedural error in this matter and that the judgment rendered was clearly erroneous. We therefore REVERSE the trial court’s April 23, 2009 oral ruling finding John Smith guilty of speeding and order the Notice of Infraction against Smith to be dismissed with prejudice.

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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.

Publisher’s note: The remainder of this paragraph and the next two paragraphs were mistakenly omitted from prior editions of this reporter. The font and spacing of this page have been modified to preserve the pagination of the rest of the reporter.

In Skokomish v. Mosbarger, the Skokomish Tribal Court of Appeals made factual findings regarding some of these missing “facts” by “judicial notice” because, as in this case, the Tribe had failed to introduce any evidence regarding facts necessary to support assertion of Tribal jurisdiction under U.S. v. Montana. We strongly disagree with the Mosbarger application of judicial notice and decline to apply it here.