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https://www.courtlistener.com/api/rest/v3/opinions/8502603/ | The petition of William W. Moore and others, against the election of the member returned from the town of Somerset, was presented2 to the house on the 4th of January, and was referred3 the next day to the committee on elections. On the thirtieth of March the committee reported4 as follows: — ■
“ The petition contains four objections to Mr. Slade’s election :—
1st. That the name of Nathaniel Morton was borne on one *577of the ballots for representative, east by a legal voter of Somerset, which was disregarded by the selectmen, and not included in the whole number of votes declared by the selectmen on that occasion.
2d. That, in the election, John Pike, a person not legally qualified as a voter, put into the box a ballot for Slade, which was counted and included, by the selectmen, in the ninety-four votes for Slade.
3d. That Robert Gibbs, or some other person, daring the election, put into the box two ballots, each having thereon the name of Slade, which ballots were counted by the selectmen, and included in the ninety-four votes for Slade.
Filially. That Slade did not receive a majority of the votes legally cast in the election by the qualified voters therein.
The committee, before considering these allegations, feel it to be their duty to state to the house, that, although the proceedings of the meeting were not so far irregular as to make it proper, on that account, to set aside the election, yet, the proceedings were very disorderly; that the election being for state officers and member of congress, the votes were received into three hats, a practice, in itself very reprehensible, inasmuch as every town ought, to be provided with suitable ballot-boxes ; that great confusion prevailed in the meeting ; that the bystanders crowded in a disorderly manner around the desk where the votes were received; and that it was proved, in two instances, at least, that persons, not town officers, presumed to meddle with the hats, and to touch the ballots, before the vote was finally declared.
Such practices the committee conceive to be very unbecoming and disreputable, and deserving the rebuke of this house.
At the hearing of the case, the town records were produced, by which the following appeared to be the statement of votes, at the election on the 13th day of November last, for town representative, viz.: — Whole number of votes, 186 ; for Jona. Slade, 2d, 94; John A. Burgess, 86; Benjamin Cartwright, 2; Daniel Chase, 3 ; Geo. S. Hood, 1.
It also appeared, by the testimony in the case, that there *578was found in the hat, with the votes for town representative, one printed piece of paper, bearing on it the following words: ‘ For representative to congress, Nathi. Morton, of Taunton,’ which piece of paper the selectmen disregarded and rejected, and did not count as a ballot, in reckoning up the whole number of votes. As to this vote, it was testified to by two witnesses, that it was put. into the hat by Jona. Buffington, Jr., a qualified voter. The witnesses, Charles W. Moore, and John W. Marble, swore that they saw the vote in Buffington’s hand, saw him put it into the hat, and saw it afterwards in the hat.
The said Jona. Buffington was also produced before the committee, and swore that a Mr. Bowers called on him, at the place where he was, two miles from the place of voting, and requested him to go to town-meeting and vote for representative; that he gave him a vote for Jona. Slade, 2d, as he supposed, which he put into the box pointed out by the selectmen; but he said be did not look at the vote, and did not see what name was on it; that he intended to vote for Mr. Slade, and didn’t know that he did not vote for him. Other testimony was introduced, to show that Mr. Bowers, who went after Buffington, was a friend of Slade’s, and procured the attendance of Buf-fington, to vote for Slade.
The committee, on this evidence, were of opinion, that said piece of paper, so found in the hat, with the name of Nathi. Morton upon it, was rightly rejected by the selectmen, for these reasons:—
1st. Because it clearly appeared, that said vote was cast by the said Buffington, by mistake, lie fully intending to vote, not for Morton, but for Slade, and believing that he had done so.
2d. Because the vote was for a person not eligible for the office balloted for, as appeared by inspection of the vote itself.
The committee believe this question to have been settled by the decision of the house, in the case of the town of Whately,1 in 1843; but, as that decision is, perhaps, of doubtful authority, having been made at a time of much party excitement, and, as *579it seems desirable that a question so important, should be finally settled, they venture to suggest a few reasons in favor of rejecting votes given for ineligible candidates, at elections for representatives.
In the first place. It is to be presumed that such votes are cast by mistake, as whenever the names of the persons giving such votes have been ascertained, it has generally been found that their votes were east inadvertently.
Again. The policy of the law requires, that such a construction should be put upon all. proceeding's at elections, as to make such proceedings valid, rather than nugatory. An election is always attended with trouble, inconvenience, and expense, and should not be set aside for light or frivolous causes. If votes cast by mistake, for persons not eligible, are to be counted, then the intention and will of the voter is defeated ; if, on the other hand, such votes are wilfully put into the ballot-box, the person who thus votes indicates so clearly his disregard of the value of the elective franchise, that it is only a deserved punishment for his delinquency, to deprive his vote of all 'weight and influence at such election. By so doing, a voter is not deprived of any legitimate exercise of his right, because he can always manifest his opposition to any one candidate, by voting for some other.1
Finally, it scerns to the committee, that there is no reason why a person, who votes for an ineligible candidate,.should not be put upon the same footing with one who does not vote at all, as, in both cases, the parties show a disposition to prevent an election, and both of them show an unwillingness to perform their duty by aiding to promote those elections, which are absolutely essential to the existence of the government. For, if every voter refrained wholly from voting, or voted for an ineligible candidate, the result would be the same — no choice; and, although it is true that no penalty is attached, by law, to a neglect of this obligation of voting, yet the obligation is not the less plain for that, and the committee believe it *580to be a duty too important to be neglected, and too sacred to be trifled with, by voting for fictitious persons, or ineligible candidates. It may be urged, that, since the Revised Statutes provide, that blank pieces of paper shall not be counted as votes, the absence of any provision, to reject votes for ineligible candidates, is a strong argument that the legislature did not intend that they should be so rejected ; the committee, however, believe, that it was not, at that time, contemplated, that any provision could be necessary, it, being supposed that the practice of rejecting such votes by the legislature was so uniform, as to have taken the place of a law. Otherwise, it is difficult to see, why the same section was not made to comprehend both cases.
The voter, who puts into the ballot-box a blank piece of paper, as clearly indicates his opposition to all the candidates, as he who puts in a vote for an ineligible candidate; and there seems to be no reason, why the opinion of the one should not be entitled to consideration as well as that of the other.
As to the second allegation contained in the petition, that the vote of John Pike should have been rejected by the selectmen, at the election, it was proved to the satisfaction of the committee, that Pike was not qualified to vote at the election, he not having paid any tax assessed upon him within two years of the time of said election. It was also proved, that Pike voted for Jonathan Slade, 2d. They therefore are of opinion, that the vote of Pike should have been rejected by the selectmen, and that the same should not have been reckoned among the whole number of votes given in at the election.
As to the third allegation, that Robert Gibbs, or some other person, during said election, put into the ballot-box two ballots, having each thereon the name of said Slade, the committee find, that the history of the occurrence, out of which this allegation originated, is, in substance, as follows : — the votes for representative were received in a hat; from thence for the purpose of counting them, they were turned out upon the table. One of the selectmen assorted them, laid them in a pile by the side of the presiding officer, who took them 'up, read off *581the names, and then returned each vote to the hat; in the mean time the town clerk kept tally. While the counting was going on, a bystander touched two votes which adhered together, and turned them on the rim of the hat, at the same time, exclaiming, ‘ Here are two votes which you have counted only as one.’ The presiding officer thereupon took the two votes, which were both for Jonathan Slade, 2d, and laid them aside, at the same time remarking, that he would let them lie there until they had finished the count, as perhaps there might be a choice without recounting.
There was no choice, however, without enumerating both these votes, and the selectmen proceeded to recount, when the result, with these two votes included, was as above stated. On the part, of the petitioners, it was urged, that these two votes must have been put into the hat accidentally, or otherwise, by one and the same person, because, as they said, it was almost impossible, that two votes should have got together, and coincided exactly, as was sworn to be the fact, unless they had been originally deposited by the same person. It was testified, on, the other side, by the selectman who counted the votes, that these votes were on printed paper, ‘ a little dampish,’ and that he ‘ laid them snug together in a pile.’
The committee had some difficulty in determining this question, but they finally concluded, that, inasmuch as said votes were not folded or fastened together, it was not impossible that they might have got together, while they were thus assorted and piled up, and adhered together afterwards, and that they were bound to presume, that said votes were deposited in the hat by two different persons. Furthermore, the committee felt bound to confirm the decision of the selectmen, in this matter, there being no direct testimony to impeach that decision. These officers, having been intrusted with the duty of presiding at the election, are to be presumed to have acted fairly and honestly, in the performance of that duty, until the contrary is shown. With both these votes, and all the facts before them, they decided, that what was denominated a double vote was, in fact, two distinct ballots. In the absence, then, *582of any direct testimony, such as would be that of the person who put the votes in, or of some person who actually saw them put in, the committee do not feel justified in reversing that decision. Their opinion is, therefore, that the petitioners have failed to prove the allegation, that two votes were cast at said election by one person.
It follows from the above, that the final allegation contained in the petition, that Slade did not receive a majority of the votes legally cast in said election by the qualified voters therein, is not, in the opinion of the committee, sustained.
Correcting the statement of votes, agreeably to the above conclusions, and rejecting the vote of said Pike, the return would be as follows : — Whole number of votes, 185 ; for Jonathan Slade, 2d, 93 ; all others, 92; necessary to a choice, 93 ; and Jonathan Slade, 2d, having that number, was chosen.
The committee, therefore, report, that Jonathan Slade, 2d, was duly chosen a member of this house from the town of Somerset, at the meeting above referred to, and that the petitioners have leave to withdraw,”
This report was printed by order of the house, and on the tenth of April was agreed to.1
Same, 10.
Same, 16.
Same, 537.
In the case of The King v. Monday, Cowper, 537, Lord Mansfield said, that the only way of voting against one candidate was to vote for another.
71 J. H. 697. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502647/ | Journal Entries: (i) Oct. 12, 1821-.proclamation made, continued; (2) Oct. 7, 1822: proclamation made, evidence heard; (3) Oct. 8, 1822: attendance of witness claimed; (4) Oct. 9, 1822: property condemned, sale and notice of sale ordered.
Papers in File (1820-23): (1) Libel; (2) published notice; (3) commission to take depositions, deposition of Martin Andrews; (4) notice of taking deposition; (5) deposition envelope; (6) precipe for subpoena; (7) subpoena; (8) account of sales.
File No..... Lamed Docket, MS p. 26. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502605/ | On the twenty-sixth of February, the petition of A. E. Hutchinson and fifty-nine others, of Middleton, was presented to the house, and referred to the committee on elections.1 The petition alleged that William O. Andrews, the representative returned from that town, had departed from the commonwealth, with no expectation of returning before the final adjournment of the legislature, and that consequently the inhabitants of the town were deprived of the enjoyment of their right to be represented in the house. The petitioners, therefore, prayed that a precept might issue for the election of a representative in the place of said Andrews.
It was generally stated and believed, at the time, that Mr. Andrews, after holding his seat a short time, had sailed from a northern port on a voyage to California, so that, unless some accident occurred to prevent the accomplishment of the voyage, he could not possibly return to the commonwealth for a period of, at least, five months.
The committee, on the first of March, reported,2 without giving any reason for their conclusion, that the petitioners should have leave to withdraw their petition, and on the sixth of March, this report was agreed to.3
On the second of May following, the committee on the payroll were directed to cause any sum that might be due to Mr. Andrews, for travel and attendance, as a member of the house, for the session then about to close, to be made payable to his wife.4
72 J. H. 350.
Same, 377.
Same, 393.
Same, 756. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502606/ | The election of Luther W. Rugg, returned a member from the town of Sterling, was controverted by J. N. Tolman and fifty others, on three grounds: — *
1st. That the poll was opened after five o’clock in the afternoon.
2d. That the presiding selectman improperly stopped debate.
3d. That the poll was opened in a disorderly manner, and votes were deposited in the ballot-box, before the names of the voters were called.
It appeared, in evidence, before the committee on elections, to whom the case was referred, that on the second of November, the day of the annual state election, there was no choice of representative, and that the meeting was adjourned until the next day, at ten o’clock in the forenoon, on which day three unsuccessful ballotings took place, at which the whole number of votes was, on the first, 318, on the second, 319, and *590on the third, 328, and of which, the sitting member received, at the first, 149, at the second, 153, and at the third, 160 votes.
The report of the committee then proceeds as follows :—
“ Upon the declaration of the third balloting, a motion was made ‘ not to send,’ which, upon a poll of the meeting, was declared not to be carried. There was then a motion made to adjourn, which was tried in the same way, and decided not to be carried. The chairman declared the vote, and at the same time called for another balloting. It appeared also in evidence, that at the same moment in which the chairman was declaring the result of the vote on the motion to adjourn, and calling for a new balloting, a motion was made that ‘we now proceed to a new ballot.’ This motion, the chairman did not hear; nor did he know of it until sometime afterwards. To this motion, Dr. Daniel Mann rose to speak and addressed the chair. He proceeded to speak, and the chairman called him to order, as discussion was not in order when the balloting was proceeding. After which, Dr. Mann says he attempted to speak two or three times, but was not allowed. He then rose and remonstrated against the proceedings as irregular and illegal, and advised all who were opposed to them to leave the room and not vote, and a large number then withdrew with Dr. Mann. The voting then proceeded quietly, and the poll having been kept open a sufficient length of time, Air. Rugg was declared elected; he having received 148 votes out of a poll of 161.
In the opinion of the committee, the decision of this case turns upon the question, whether the poll was opened, for the choice of representative, after five o’clock in the afternoon.
The petitioners produced a number of witnesses, who testified that it was past the hour of five, when they heard the chairman declare that the poll was open. Some ten or twelve watches were examined at or about the time that Dr. Mann tried to get the floor to speak, and they showed that the hour of five had gone by. By Mr. Samuel Lawrence’s watch, it was five minutes past five. Mr. Hobart said it was twenty minutes past five. Mr. George Buttrick said it was three *591minutes past five when the chairman declared the poll open. Joel Pratt said it was between four and five minutes past five when the poll was declared open ; other witnesses testified to the same general facts.
On the other hand, the chairman of the selectmen, before opening the poll in the morning, compared his watcli with that of Dr. Peck, the town clerk. The town clerk’s watch was from ten to fifteen minutes faster than the chairman’s watch.
He (the chairman) then stated to the town clerk, ‘I shall be governed by your watch.’ When the chairman was told by Mr. Iiosmer, on the day of election, that it was past five when the last balloting had commenced, he replied, ‘it is not past five by the town clerk’s watch, he had been by that all day, and should continue to go by it.’ And it appeared in evidence, that it wanted ten minutes to five, when the chairman declared the poll open for the last balloting. The town clerk testified, that he compared his watch with two or three watches that evening, and they were slower than his; one, Mr. Raymond’s watch, had just come back from Worcester, where it had been to be regulated, and it was slower than the town clerk’s watch. The town clerk’s watch also agreed with his clock at home. It appeared in evidence, also, that esquire Houghton told the chairman of the selectmen, when he declared the poll open, ‘ that he was just in time.’
The discrepancy, as to the time of opening the poll, may be accounted for by the fact, that the witnesses examined for the petitioners did not know that the poll was open, until the chairman called Dr, Mann to order. The poll had been opened before that time, and all the names beginning .with ‘ A,’ had been called.
As regards the second charge, that the chairman would not allow debate, we have the testimony of the chairman, that he heard no motion made ‘ to proceed to another ballot,’ and it was this motion which Dr. Mann rose to discuss. The chairman, not aware that any motion had been made, declared Dr. Mann out of order. It appeared in evidence, that the motion here referred to was made by Deacon Cyrus Holbrook, who was *592examined by the committee. He said, he ‘ noticed that the chairman did not hear his motion.’ ‘ I saw,’ said he, ‘ the impropriety of it, and did not renew it, and I considered my motion as withdrawn.’
As regards the third charge, that the poll was opened in a disorderly manner, and that votes were put into the ballot-box before the names were called, the evidence is, that at the time that Dr. Mann rose to speak, and while he was attempting to speak, there was considerable noise and disorder. The meeting was excited, but it does not appear that any ballots were put into the box, without the names of the voters being checked; as strong proof of this, the chairman of the selectmen testified, that he examined the checks on the voting list, after the meeting, and found the checks to correspond exactly with the number of votes cast.
These, the committee believe, are the substantial facts as developed by the evidence, and they decide that the petitioners have failed to make out their case, and that the sitting member, Luther W. Rugg, was duly elected a representative from the town of Sterling, and that he is entitled to his seat.”
The report was agreed to.1
73 J. H. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502607/ | The election of John S. Barry, returned a member from the town of Hanover, was controverted by John Cushing and others, and reported upon by the committee on elections, as follows
“ The only allegation made by the petitioners, as affecting the right of the sitting member representing the town of Han*593over, i?, that the town-meeting held on the twenty-fifth day of November last, at whk-h said Barry was declared to be elected, ‘was illegal and void, inasmuch as a part if not all of the certified warrants, ordering said meeting, required the same to be held on the twenty-fifth day of November, eighteen hundred and fifty-one.’
It appears, from a copy of the warrant on the town records of Hanover, and from the warrants posted up at the usual places within the town, that the inhabitants of Hanover were notified to meet on Monday, the twenty-fifth day of November «eat, at eleven of the clock in the forenoon, then and there to act on the following article :—
‘ To choose a representative to represent them in the general court, to be held at Boston, on the first Wednesday of January next.’
The warrant and the posted copies were dated the sixteenth day of November, in the year one thousand eight hundred and fifty.
By a strict construction of the language of the‘warrant, the inhabitants were notified to meet on the twenty-fifth day of November, 1851. But the committee do not think any misunderstanding could have existed as to the true intent and meaning of the warrant. No individual could suppose that a meeting of the inhabitants, to be held in November, 1851, would be notified in November, 1850. And the object of the meeting, as stated in the warrant, is solely 1 to elect a representative to the general court, to be held in Boston, on the first Wednesday of January next;’ that is, 1851. It may be noticed, also, that the twenty-fifth day of November, 1851, will not fall upon Monday.
But, aside from these considerations, it has not been made to appear to your committee, that any misapprehension did in fact exist, in the mind of any one, as to the purpose of the warrant, or that any individual has been debarred the privilege of exercising his right to vote, or that any one was detained from the polls, in consequence of the ambiguous language of the warrant.
*594The committee are therefore of the opinion, that the petitioners have not made out a case affecting the right of the sitting member to a seat in this house, and they therefore recommend that the petitioners have leave to withdraw,”
The report was agreed to.1
73 J. H. 320. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502609/ | The election of Henry Robinson, returned a member from the town of Needham, was controverted by Daniel Kimball and others, on the ground, that the meeting at which the election took place was disorderly; that votes were put into the' ballot-box in an irregular and illegal manner; and that the check list was not used in the manner prescribed by the statute.
The committee on elections, to whom the petition was referred, reported thereon the evidence adduced in the case, together with their conclusions of fact and law thereupon, as follows :>—
“ That the meeting in the town of Needham, at which the sitting member claims to have been elected, was legally called and properly conducted, except that on the trial where the member claims an election, the names of persons voting were not checked by the presiding officers, or by any person appoint*598ed by them therefor, as required by the act of 1839. e. 42, ‘ concerning elections.’
At said meeting, there were two unsuccessful trials to elect a representative, and the member contends that he was elected on the third.
At the first trial, all persons voting were checked, agreeably to the requirements of law. On the second and third trials, the names of persons voting were not checked, as before named, but the check list was held by one of the selectmen, and used, so far as that no person was permitted to vote, until it was ascertained by the selectmen that his name was on the list.
The selectman holding the ballot-box was personally acquainted with nearly or quite all the voters in town ; and, on the third trial, only one person offered to vote of whose right he had doubts, and that person was not allowed to vote, till it was found that his name was on the list.
It has been the custom in the town of Needham, since the passage of the said act of 1839, not to check the names of persons voting, after the first ballot, but to use the check list in the manner before described.
There is no evidence of any fraud or double voting on the third trial, or at either of the preceding trials.
A majority of the committee regard the aforesaid act of 1839 as only directory, and that it was not the intention of the legislature, that the neglect of the selectmen, to obey the requirements of this law, should operate to disfranchise the citizens of a town, and thwart the wishes of the voters, fairly and honestly expressed at the ballot-box; but that the penalty of two hundred dollars, provided by the act of 1839, should rest upon and apply to the only offending parties, the selectmen, as an atonement for the neglect of a plain duty; and that this punishment would be a sufficient guaranty for the enforcement of a due observance of the law.
The requirements of this law are the same, with regard to the use of the check list, in voting for governor, senators, electors of president, &c., and representatives in the general court; and it is believed that it could not have been the intention of *599the legislature, to place at the disposal of a board of selectmen the political interests of the state and nation, and allow them, at pleasure, either directly or indirectly, to annul the right of suffrage.
A majority of the committee, therefore, respectfully report, that Henry Robinson, now holding a seat in this house, as representative from the town of Needham, was duly and legally elected, and is entitled to his seat.”
The report was agreed to.1
73 J. H. 554. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502611/ | The ground, upon which, (by an order of the house,) the election of one of the members returned from Milford was called in question, is set forth and. considered in the following report of the committee on elections, which was made in the house on the 31st of January, and agreed to on the 5th of February following2:—
“ The town of Milford, at their annual town-meeting in *610November last, for the choice of state officers, among other things, voted to choose two representatives, to represent them in the general court of this commonwealth ; the selectmen then opened the poll, and called for votes for the first representative, and upon the votes being counted, Mr. Hiram Hunt, one of the present sitting members, was declared to be duly elected, and received from the selectmen the usual certificate of his election. Then the poll was opened, and votes were called for the election of a second representative; and Mr. Alfred Bragg was declared to be duly elected, who also received from the selectmen the usual certificate of his election.
It appeared in evidence, that the assessors of said town of Milford, agreeably to the provisions of the statute for such case made and provided, and in accordance with the constitution, had taken a census of the inhabitants of said town, and returned the same to the governor and council, wherein the number of inhabitants was 4,410; and that thereupon the governor, conformably to the requisition contained in the thirteenth article of the amendments of the constitution, had issued his proclamation, dated July 18th, 1850, declaring, that according to said census, the town of Milford was entitled, for the ensuing ten years, to one representative each year.
At a hearing before the committee, Mr. Bragg, one of the members elected as aforesaid, proposed to prove, if opportunity could be afforded, that the said assessors, in making up the enumeration of the inhabitants of Milford, committed errors, which could be clearly pointed out, as apparent upon their minutes; and that if the computation had been correctly ■made, the number of inhabitants of said Milford, on the first day <of May last, was much greater than 4,680, which is the number requisite to entitle a town to two representatives. Mr. Bragg further stated, that, upon this supposition, which was very generally believed throughout the town, the vote to send two representatives was based.
The committee voted to give Mr. Bragg an opportunity to prove such matters and things as might be pertinent to the case. Subsequently, the committee were informed by Mr. *611Bragg, that, upon a careful examination of the assessors, and their minutes of said census, he apprehended that lie should not be able to make out so clear a case of errors and mistakes, as to warrant him in urging the propriety of going behind the census return; and he therefore should not urge any further his claim to a seat in this house, but should withdraw immediately.
The committee, therefore, feel themselves relieved from a question of some considerable embarrassment, which is this: Whether the said decennial eensús, which determines the right of representation of all our cities and towns, can be subsequently, and previous to the expiration of ten years, inquired into, and frauds or errors corrected ? The words of the constitution are plain and peremptory. No provision is made for the correction of errors or of fraudulent conduct; and this would seem to lead to the conclusion, that towns must take the responsibility of selecting capable and honest assessors ; and, if those officers do not perform their duties faithfully, correctly, and honestly, the towns themselves must suffer the consequences.
The committee, therefore, report that the election of said Alfred Bragg, as aforesaid, was null and void, and that he is not entitled to a seat in this house.
They further report, that as Milford is entitled to one representative, and inasmuch as Mr. Hunt was duly elected as such, that he is entitled to hold his seat as a member of this house.”
Same, 188. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502612/ | The election of Joseph B. Nye, returned a member from the town of Plympton, was controverted by Thomas E. La-ring and others, on the ground, that at the meeting for the election, which was on the day of the general election, November 11th, 1850, before proceeding to the balloting, at which the sitting member was elected, a motion, made by the first named petitioner, was seasonably made, not to send a representative, which motion the selectmen refused to put, but proceeded with the balloting, which terminated in the election of the member returned.
The committee on elections, to whom the ease was referred, received the testimony of several witnesses, adduced by the parties as to the time when the motion not to send was made. The committee reported the same, in detail, together with the following:—
“ The committee find, that the warrant for the town-meeting, held in Plympton, November 11th, 1850, was duly signed by the selectmen of said town, and that legal notice was given of the meeting; and that the only article in the warrant, in relation to the choice of a representative from said town, is as follows, to wit: ‘ Also, to bring in their votes for a representative to represent them in the general court, to be holden in Boston on the first Wednesday of January next.’ A part of the record of said meeting is as follows, to wit: ‘After that the selectmen declared the number of votes given for each person voted for, and that there was no choice of a representative *613to said general court, a motion was made to adjourn the meeting, and it was voted not to adjourn. Then a motion was made to dissolve the meeting ; but as the votes given in for governor, &c., had not yet been declared, and, of course, as a vote to dissolve the meeting would render the votes given in for governor, &c., illegal, the selectmen refused to call the vote. After the motion to dissolve the meeting was made, and the selectmen refused to call a vote to dissolve, a motion was made not to send a representative to the general court of Massachusetts; but as there was no article in the warrant for the meeting, that the subject matter thereof authorized such a vote, and, of course, such a vote would be illegal, the selectmen refused to call a vote not to send a representative, but called for the votes for a second time, voting for a representative to represent said town in the general court of Massachusetts, for the year 1851.”
The committee concluded their report with the statement, that in the opinion of a majority.of them, upon the evidence, the motion in question was seasonably and properly made, and should have been put by the selectmen, and not having been so put, the election subsequently effected was void.
This report, which was made on the 30th of January, was afterwards recommitted to the committee' on elections, with instructions to report the conclusions of fact and the, legal principles, on which they predicated their opinion above stated, that the election was void. They were also directed to receive any further evidence, which might be offered by either party, and were authorized to send for persons and papers.
In pursuance of the recommitment, the committee examined a great number of witnesses produced by the respective parties, whose testimony was reported at length. The committee then proceed as follows :—
“ Arid, now, from this great mass of testimony, taken in connection with that given at the former hearing, the committee are directed, by the order of recommitment, ‘ to report the conclusions of fact and legal principles on which they ground their opinion.’
*614The principles of our institutions, and the form of government under which we live, unquestionably confer the privilege, and make it the duty of the respective towns in this commonwealth, to be represented in our legislative assemblies; and no slight cause in form, or even substance, ought to deprive a town of that privilege, when such town has manifested a desire and determination to be so represented. But on the other hand, it must be considered, that the efficacy of our laws, the preservation of our institutions, and the peace and quietness of the community, absolutely require that the selection of the law-makers should be subject to certain fixed and satisfactory regulations, which shall give a free, full and fair expression of the wishes of the voters. And the judges of our supreme judicial court, being called upon for that purpose, have given their opinion upon the construction of the constitution and laws, which should govern the presiding officers in town-meetings, in a case like the one now under consideration. In the 15th volume of Mass. Reports, page 537, [ante, 199.) they say, ‘ that a right to send a representative is a corporate right, vested in the several towns by the constitution, and can be exercised by them only in a corporate capacity; and it necessarily follows, that when a town is legally assembled for the purpose of electing a representative, if a vote pass not to send, the minority, dissenting, cannot legally proceed in the choice.’
Here the rule is clearly laid down, that towns have the constitutional right to vote not to send a representative; and the committee are of opinion, that for good and sound reasons this rule ought to be sacredly observed ; and consequently it follows, irresistibly, that if a town have this constitutional right to vote not to send a representative, when a motion is regularly made not to send one, it; is a legitimate motion, and it is the imperious duty of the presiding officer to entertain it, and to submit it to the decision of the meeting.
The decision aforesaid of our supreme judicial court is of long standing, and has been observed and conformed to by successive legislatures ever since its promulgation. And the committee cannot presume, that there will be any serious ob-*615jeetion to it as a governing principle, by which we ought to be directed in deciding the present case.
The next question to be considered is, whether, when a motion is seasonably and properly made, not to send a representative, and the presiding officer refuses to put the motion, it vitiates and renders void an election subsequently made. Tin-only difficulty which occurs to the committee, in the way of a ready answer to this question, is, that it is uncertain whether a majority of the legal voters are or are not in favor of the motion. And it can be said with some degree of plausibility, that inasmuch as the wishes of the majority have not been ascertained, and by a subsequent act a representative has been chosen, it must, be presumed that a majority were in favor of sending. But it must be considered, that in .reaching such a result, the constitutional rights of the qualified voters have been violated, in the presiding officer's refusing to submit to them a legitimate motion. And an act, based upon this violation, can hardly be considered legal. And again ; it is very far from a certainty, that a majority were opposed to the motion, merely because, after being deprived of a constitutional right and privilege, enough of the voters tamely submitted, to carry out the illegal determination of the presiding officer. And the committee are of opinion, that if the presiding officer at the election, now under consideration, did wilfully refuse to put the motion not to send a representative, the, same being seasonably and properly made, it was an illegal act, which vitiated and rendered void the election subsequently made.
They are supported and confirmed in this opinion by a series of decisions, heretofore made by the house of representatives in analogous eases ; and would refer to the several cases of Westminster, (ante, page. 32,) Nantucket and Sharon, (195,) Roxbury, (157,) Winslow, (201.) Southbridge, (215,) Boston, (221,) Charlestown, (226); and also the case of the town of Adams, (ante, 339,) where the chairman refused to put a motion to adjourn, and it was decided, that such a refusal vitiated .an election subsequently made.1
*616The committee then proceeded to inquire, whether the motion of Mr. Loring was properly and seasonably made. There seems to be no doubt but that it was properly made so far as this ; that it was made audibly, was heard by the chairman, and was seconded. And the great question, and substantially the only one, to be decided in this case, is, as the committee think, was the said motion made seasonably, at a proper time to be entertained and acted upon in the meeting ?
The doubt, which existed in some minds at the meeting, as testified of, and which was suggested in this house, at the former debate upon this subject, whether such a motion could legally be made and entertained, after the meeting had been opened, and the voting had begun upon the first ballot, seems to the committee to be utterly unfounded. It is entirely contrary to the uniform practice in all our towns, and in many instances, would place town-meetings in a singular predicament. Most of the towns are desirous of being represented, and entertain sanguine expectations of being able to elect. They go into the election to accomplish the object, but after balloting a reasonable number of times, they become satisfied that it is impossible to concentrate a majority of voters upon any single candidate. Can it be contended that they are obliged, without hope, to continue the fruitless struggle ad infinitum ? Besides, to dissolve the meeting would frequently destroy others of its objects. The committee do not feel inclined to waste any more time or words upon such a question. The material question is, — was Mr. Loring’s motion not to send a representative made seasonably, in regard to the proceedings of the meeting, at the time it was made? Was it made before the voting had really and substantially commenced upon the second ballot, in which the sitting member was elected ? If it was so made, then Mr. Nye was illegally elected. But if it was not made until that balloting had palpably and intentionally commenced, then the petitioners have not made out their case.
One thing appears very evident, and ought to be kept constantly in mind, throughout the whole investigation of the tes-*617timóny relative to this point, namely, that at the time of the meeting, and amongst all the discussion and controversy about this matter, then and there, not one word, nor, so far as appears from the testimony, one thought, was entertained, or uttered, that the motion was out of order, because the balloting had commenced. Other reasons were assigned, such as that it ought to have been made at the commencement of the meeting, and that it was not authorized by the wording of the warrant, &c. But this objection was not interposed. The record made by the town clerk on the spot, and at the moment, is of great importance, and is full of meaning upon this point. It reads as follows : ‘ A motion was made not to send a representative to the general court of Massachusetts, but as there was no article in the warrant for the meeting, that the subject matter thereof authorized such a vote, and of course, such a vote would be illegal, the selectmen refused to call a vote not to send a representative; but called for the votes for a second time.’ It can be hardly doubted, but that the. reason assigned, and the only reason upon which the selectmen acted, is truly assigned in the record. And it is equally strange and unaccountable, if the second balloting had really ánd openly commenced before the motion was made, that so palpable and cogent a reason and ground for a refusal as this would afford had not been mentioned or even thought of.
The committee are fully aware, that the testimony above set forth is very conflicting upon the.point of precedence between the commencement of the second balloting and Mr. Loring’s motion; but they would suggest whether this state of affairs has not arisen in a great measure by mistakes in recollection. No doubt that all testify as .they now really believe, but it is after a lapse of considerable time ; when partizans have grown warm, and a new and unexpected point has arisen ; when the mind, heated by party feeling, and rendered susceptible of receiving almost any bias, is called upon to recollect accurately the order of proceedings in one particular, which had not been called to the attention of any one before. In a case of controverted facts, where the testimony relates to trans*618actions which took place at a previous time, somewhat remote, great reliance ought to be placed upon the testimony of those, who, from their situation and interest in the matter, would be most likely to remember distinctly the order of events on the occasion. Now the chairman of the selectmen, who presided at that meeting, certainly ought to know what took place, and he states positively that Mr. Loring’s motion was made, and heard by him, and talked about, before he received, or intended to receive, any votes on the second ballot; and he further states, that no one received or pretended to receive, with his knowledge or consent, any votes on that ballot besides himself; that if any votes got into the box, they got there without his knowledge or consent; because he did not intend to open the poll, or receive votes, until the question of Mr. Loring’s motion was settled. And the decision and course of proceedings of the chairman of the selectmen is binding upon the other members of the board, unless dissented from at the time.1
Then again, Mr. Loring himself, who had been requested to make the motion, before the result of the first ballot was known, if it turned out to be no choice, and was waiting attentively for the declaration of the result, that he might immediately make his motion, would be very likely to remember how and when he made it. In connection with this, must be taken into consideration the testimony of Samuel Bradford, who had no desire to prevent the election of a representative, but says he wanted to send. He testifies that he was anxious to make a motion to adjourn, and meant to make it immediately after the declaration of no choice should be made ; but that Mr. Loring was quicker than he could be, and succeeded in getting his motion made first. Now these witnesses, together with others similarly situated, being particularly interested in regard to the point of time when the motion was made, would be very likely to recollect it accurately.
It would be tedious and perhaps of little use, to go into a particular analysis of all. the testimony bearing upon this question. A majority of the committee think that it strongly *619preponderates in favor of the cause of the pethioners, And they firmly believe, that most if not all the temimony inven upon the other side, and which apparently conflicts with «¡¡oh a conclusion, may be reconciled therewith, upon the presumption that Mr. Loring’s motion, when first made and .-eeoutled, was not heard by those who give precedence to tin- commencement of the balloting, and that their attention to his motion was first called to it, when he urged or repeated it the second or third time.
The committee are of the farther opinion, that if the chairman did call for votes immediately after the declaration of no choice, and thereupon and forthwith, Mr, Loring made his motion; it was the duty of the chairman to have suspended or revoked his call, so that a fair and reasonable opportunity could have been given for discussion, and the decision of the meeting thereon,1
A majority of the committee are therefore of opinion, that Mr, Loring’s motion was a proper and legal motion, although not expressly, in so many words, written in the warrant; that it was made and seconded in due season; that a suitable and reasonable time ought to have been afforded for its discussion and decision, before proceeding to ballot the seebnd time; that as the presiding officer at the meeting refused to entertain this motion, the subsequent proceedings in electing a representative were illegal and void, and that the sitting member from Plymp-ton is not entitled to a seat in this house.”
Two members of the committee, (Messrs. Schouler and Story,) dissented from the conclusions both of fact and law stated in the report, and presented their views thereon as follows :—
“ The evidence in this case is exceedingly voluminous and contradictory. It is difficult to say, exactly, what it proves or disproves, in regard to the points at issue. The undersigned will, however, endeavor to state, as clearly and concisely as may be, what appears to their minds to be its fair result.
The certificate of the member is good prima facie evidence, *620that he is entitled to his seat, and the burden is on the petitioners to show, affirmatively, that, he is not; this presumption of law, in favor of the certificate, stands for evidence for the sitting member at every point of the testimony, nothing having been shown to change the burden of proof in any particular. It must be conceded, then, in the absence of proof to the contrary, that the chairman of the selectmen, with the concurrence of his colleagues, was justified by the usage of the town, and the presumed assent of the voters, in holding out the ballot-box, and calling for votes, on the second ballot, without any previous vote of the meeting to proceed, and that he did this fairly and honestly, in the ordinary course of business, and with a single eye to his duty. It is shown by the testimony of the principal petitioner, Mr. Loring, who made the motion not to send, which has occasioned the petition, that that motion was made immediately after the chairman called for votes: and it appears to the undersigned, to be abundantly proved, that the votes of Mr. E. S. Wright, and Mr. T. I). Ellis, were put in instantly upon the making of this call, and before the motion of Mr. Loring had fairly reached the apprehension oí the selectmen. This fact is testified to by the two voters themselves, by Mr.tBisbee, the selectman, who says he checked their names; by Mr. Charles B, Wright, who says he tried to vote immediately after them, and was prevented by the chairman, (who held the box out of his reach, and said there was a motion to adjourn.) and by several bystanders, and there seems to the undersigned, to be no ground whatever for imagining, that these votes could have been put in after the decision of the selectmen, that Mr. Loring’s motion was out of order. The fact, that many of those present did not see the votes deposited, can hardly be said to weigh against such positive testimony as this. The undersigned submit the foregoing, as in their judgment, the only theory upon which the testimony, which was doubtless honestly given, and is wholly unimpeached, can be made in any degree consistent with itself; and they add, that even if this theory be not supposed to be absolutely made out, it certainly is not disproved by the testimony; which latter re-*621suit ¡3 as good for the purposes of the argument, as any: it being necessary for the petitioners to disprove it beyond ft reasonable doubt. Though the evidence conflicts considerably upon the question of the order of motions, and the disposition made of them after the call for the second ballot; it seems to the undersigned, that a motion to adjourn to tlm next day came after the motion of Mr, Lotting, and was put and noma-lived; that a motion to dissolve was then made, and the affirmative side of it only was put; and that then Mr. Loring’s motion was first regularly noticed by the selectmen, and, after discussion among themselves, and some remarks from some of the voters, ruled out of order; whereupon several voters, much less, however, than a majority, left the meeting, and then the balloting proceeded, at which Mr. Nve was elected.
It thus appears to the undersigned, that the petitioners have wholly failed to make out their case. If it shall not appear to the house, that the holding out of the box, accompanied by a call for votes, was of itself sufficient to make a subsequent motion improper, (that call, so accompanied, Being in the nature of a full question stated, like a question to be taken by yeas and nays, of which the affirmative and negative are simultaneously put, and after which, no motion is in order,) yet the deposit of the two votes, or of a single vote, though co-instantaneous with the motion not to send, settles the question in favor of the sitting member, as the right of one voter to put in his vote, after the chairman’s call, was certainly as good as that of another to make a motion. The chairman of the selectmen has no recollection of admitting these two votes; he appears to have been in a state of great agitation at the time ; but it appears that while he had not yet noticed Mr. Loring’s motion, the other two selectmen, at least, had noticed the two voters, and allowed the votes to go in. Mr. Bumpus, the third selectman, confirms the testimony of Mr. Bisbee and the rest, as to the vote of Mr. E. S. Wright, and thus it certainly appears in the highest degree probable, that that gentleman’s vote went into the box, while Mr. Loring was yet speaking, and the vote of Mr. Ellis immediately afterwards, before *622the selectmen could have taken notice of the motion. It was clearly an irregularity, to put the motion to adjourn, and clearly right, not to put the motion to dissolve, whether the balloting had commenced or not; because the law distinctly requires the selectmen to seal up the record of certain votes, previously thrown at the meeting, and then not sealed up, before any adjournment, and a motion to violate the law is necessarily out of order.
It appears obvious, that no actual injury has been suffered by this refusal of the selectmen, to put the question on the motion not to send. If those who desired to vote in the affirmative were the majority, they could gain their object with but slight trouble by depositing their votes ; if a minority, they would lose it in any event. If any of them choose to retire from the meeting in wrath, or congratulating themselves upon the strength of their technical ground, they must take the consequences of their error, whatever they may be. It will hardly be maintained, that an error of the selectmen is to be magnified by the views which a portion of the voters may choose to take of it, and by the steps they adopt in consequence. A voter, certainly, ought to have no more weight out of the meeting than in it, and it cannot be held that fifty voters, by leaving the meeting, can nullify the acts of a hundred who remain.
The undersigned have no doubt, that if their view of the result of the evidence is taken by the house, the sitting member will be confirmed in his seat. But they do not leave the case here. On the contrary, they are prepared to maintain, that upon the very state of facts set up by the petitioners, the member has a right to his seat.
They will admit, for the further purposes of this argument, that the motion not to send was made and seconded at a proper time, and ruled out of order by the selectmen. And they contend, that even upon this hypothesis, to deprive the member of his seat would be contrary to the clear fundamental policy of the commonwealth, and to the weight of established precedent and law.
As the argument would be similar, upon the ground that *623sufficient time was not given to make the motion (in the absence of fraud), to the argument upon the question above stated, that point is here dismissed.
There is no imputation of fraud in this ease. The seleetment were acting fairly, and endeavoring to do their duty. The question, then, is this: Is the neglect or refusal to put a motion not to send a representative, regularly made and seconded, sufficient, of itself, to invalidate an election subsequently made ? The fact that the chairman gave an unsound reason for not putting the motion is of no consequence. The question is not of what he said or did not say, but of what he did, or refused to do.
The fault, then, for which the town is said to deserve to lose its representative, was an error of judgment on the part of the chairman of the meeting, on a question of parliamentary law, applicable to his duty at the time. Now, the undersigned think it clear, that the house, in its capacity of a court, which settles the law relating to cases of elections, is bound to lay down for the towns certain clear and fundamental principles; not to frame a nice and technical system, but merely to inculcate those rules of common law, or, what is the same, of experienced common sense, which underlie the whole law respecting public meetings, and which have obtained with the'Anglo-Saxon race, from the earliest times. These principles are few, and of universal application and recognized utility. The first is, that there must be a presiding officer; the second, that there must be a recording officer. These are already provided for in the case of town-meetings, by statute. Next in order come these three; that only one thing can be done at one time ; that whatever is proposed to the meeting for its action must be proposed through the chair; and that the meeting must control the chair. There is nothing in these too nice for ordinary use, and these, it seems to the undersigned, ought to be recognized by the house, as being, what in fact they are, a part of the common law. To apply these principles to the present case; the chair, as is admitted, for the sake of the argument, ruled incorrectly on the point of order; the voter who made, the motion had the right *624to appeal to the meeting, and was bound to do so, for this, among many more obvious reasons, that the chair was promulgating for law what was not law, and misleading the general mind. The chair necessarily ruled hastily, and if an appeal had been taken, the wisdom of the meeting, expressed in debate, would probably have enabled the chair to correct its error, and to give a deliberate and sound opinion, after argument. If otherwise, the meeting would doubtless have overruled the chair, or, if it did not, it would be justly responsible for the error. The voter in this case, not having appealed, has waived his right, and it does not lie in his mouth, nor in that of those who joined in this legal acquiescence, to complain of the consequences of his own error. It may be said, that it will not do to adopt any, even the easiest and most fundamental principles of parliamentary law, for the government of town-meetings. Will the house then invalidate the town’s elective franchise for a year, and that a most important year, because the officers of the town have ruled incorrectly on a point of parliamentary law, so abstruse, that the opinion of the justices of our highest court was needed to inform the house of representatives, that its previous judgment, which had been identical with that of these selectmen, had been erroneous ? Will the house hold a presiding selectman, or a board of selectmen, to know accurately, and to decide correctly, at ten minutes’ notice, in the confusion of a town-meeting, a point of law of that sort, when the decisions upon it date back at least thirty years, and are only to be found in a rare book, now long out of print, (the Reports of Contested Elections,1) and with which few, even oí the class of statesmen or that of lawyers, arc in any degree familiar? The undersigned humbly but very confidently answer these questions in the negative. It may be urged, that the practice of voting not to send is familiar to those towns, which send less often than once in every year; but then the question, whether the town will send this year or the next, is a totally distinct one from the question, whether they will neglect their clear duty, to send at a *625time when, (as in this case,) they may send without prejudice to then- rights or interests, in any subsequent year.
It may be further urged, that the selectmen acting at elections are officers of the law, and, so in certain particulars, not under the control of the meetings over which they preside. If this be not so, then the previous argument applies: if it be so, how can it be held that the towns shook! sutler for their error? If the fault be serious, the selectmen should be punished in their own persons. If there be now no law to punish them, a law can be made for future offenders in the like kind, and it is not the fault of the town of Plympton, that it does not now exist.
It appears to the undersigned, also, that it is the duty of the house to encourage in the several towns a candid, liberal and earnest mode of transacting their business at elections, — not a small and hair-splitting method, — and where a minority is found to aim at carrying its point by a trick of special pleading, rather than, by an honest endeavor to convince and convert, or to out-vote its opponents, that course certainly is not to be favored.
It further appears very clearly, that the object of the constitution is, that the people shall be represented in the house, not that they shall vote not to send. This point might be labored at great length, but the argument is too obvious, and has been too often reiterated, to permit the undersigned to do mere than to allude to it, so far as if bears on the question of the true policy of the house in the premises.
The last point, to which attention is desired, is this, that the weight of precedent is in favor of the sitting member.
The fundamental law on the subject is, of course, the constitution. In that instrument, chapter 1, section 3, article 2, it is provided, that the towns may send representatives to the general court, in certain modes and under certain limb,ohms, and further, that the house of representatives shall have power, from time to time, to impose fines upon such towns a-, shall neglect to choose and return members to the same.
These provisions, of course, import at once a privilege and a *626duty, and upon the principles of law as generally understood, it would seem that a motion not to send a representative, being a motion that a town deliberately resolve to neglect its plain duty under the constitution, \vould be out of order, and that an affirmative vote upon such motion would be illegal and void. And this was the original construction adopted by the house.1 But some years afterwards, (Feb, 16, 1811.) in answer to an order of the house, requiring an opinion on a wholly different subject, the justices of the supreme judicial court say, merely as a passing remark, not particularly connected even with the argument on the question before them, as follows:—
‘ The right of sending representatives is corporate, vested in the town, and the right of choosing them is personal, vested in the legal voters. Because the right of sending a representative is corporate, if the town, by a legal corporate act, vote not to send a representative, none can be legally chosen by a minority dissenting from that vote. This corporate right is also a corporate duty, for the neglect of which, a fine may be assessed and levied upon all the inhabitants liable to pay public taxes.’2
Subsequently to this, the case of Roxbury, 1813-14,3 was deckled, in which the refusal to put a motion not to send, or its equivalent, was only one of many substantial grounds on which the election was invalidated. The committee, in their report on this case, speak of ‘ a decision of the supreme judicial court’ on this subject, (as distinguished from the practice of the house.) as ‘ fixing the established law of the land.’ They doubtless refer to what has just been quoted, which is a mere passing remark, and not a £ decision,’ nor even an ‘ opinion.’ And the undersigned will say here, with reference to the opinions hereinafter quoted, that it requires no lucubrations of twenty years’ duration, to know that an opinion of the justices, in answer to a question from the house, however delib*627erately given, and however responsive to the question, is only the opinion of so many able lawyers, given, too, without their having heard arguments, and is in no respect law. It is not ‘a decision of the supreme judicial court.’ It is amere ‘ opinion,’ and the undersigned deem it at least questionable policy, on the part of the house asking the question, to shift from its own shoulders, itself being the legitimate expounder of the constitution, the burden of making the exposition. It is never well to seek to divide responsibility without absolute necessity. And certainly, there was no such necessity here. The house was perfectly competent to decide the question. It contained, as always, mea of great ability. The question related to its own privileges. It has always, since the famous ‘ Speaker Thorpe’s Case/ in the reign of Henry VI.,1 — in the country *628whence we derive those principles of parliamentary law, which have, in a high degree, made England and America what they are, — been thought improper to ask the opinions of the justices on points of privilege, and the consequences of having asked and received this opinion are in no respect valuable.
On the contrary, those consequence's are, that, whether the house, which first asked the opinion, supposed that, as usual, the justices of that court meant something more than they said (whereas in fact they had gone to the very outmost verge of construction); and acted upon the ground, that the opinion, that a town liad a right to vote not to send, implied that that right ought to be exercised and encouraged ; or whether it thought that temporary grounds of expediency justified its course, it certainly proceeded to offer a premium upon that motion, greater than was allowed to any other; and the result is, that the decisions upon this point, blazing with their own singularity, and with, the borrowed lustre of the opinions of the justices, stand out like beacons in the sea of lave ; but in the opinion of the undersigned, it is better to sail away front them, than towards them. There are dangerous rocks where they stand.
But to retrace the argument. Next to the Roxbury ease, came that of Nantucket, in 1814-15, (ante, 180.) where there were other substantial circumstances also to govern the decision of tlie house, besides the, neglect of the motion not to send, and among those circumstances was the reading of the riot act, and the dispersion of the meeting by the sheriff.
In the next year, were the twin cases of Nantucket and Sharon, {ante, 195,) pending the decision upon which, the opinion of the justices was asked upon the question, whether a town could legally vote not to send a representative, so that that vote should bind a dissenting minority. The justices, in *629their reply,1 referred to the above quoted passing remark of their predecessors, and confirmed the doctrine therein conveyed ; .laying some stress on the fact, that the house was not absolutely required to impose the fine in question. This opinion, though, of course, it received from the undersigned all that high respect which was due to its source, yet excited in their minds some surprise, as it dearly goes to the point of saying, that a town has a right to neglect its duty deliberately, if it is willing to incur the risk of a fine.
This surprise was somewhat lessened by the perusal of an opinion of Mr. Justice Preble, of Maine,2 given at its request, to the house of representatives of that state, in 1826, on a question of a similar character to the one under consideration, and which the undersigned quote, as the opinion of a distinguished contemporaneous lawyer and judge, who may well be supposed to have understood whereof he spoke. He says, speaking of the dictum of 1811 : 1 It was a construction, operating as a check to a growing evil, the increasing number of representatives.’ This seems to show the.ground on which the justices, as well as the house, felt justified in their opinions on this point. This opinion of Mr. Justice Preble, the undersigned think it not irrelevant here to state, was a dissentient opinion, concluding that under the constitution of Maine, a town had no right to vote not to send a representative ; and though the constitution of Maine differs slightly from our own, (among other differences, it has no provision for a fine upon towns not sending); and his opinion is predicated upon the ground, that the word < corporate’ is studiously excluded from the former, and that of consequence, the right to send a representative belongs to the individual voters ; yet the fact that the legislature of that .state adopted his opinion, and rejected that of his two associates, shows that their view of public policy sustains the ground taken, by the undersigned.
Asking pardon for this digression, the undersigned proceed to say, that the case of Nantucket and Sharon was decided *630against the sitting members, and that similar decisions were made in the Boston case in 1818-19, (ante, 221,) and in the Charlestown case in 1819-20, (ante, 226) ; and these three cases are those on which, and on which alone, it is believed, that the ease of the petitioners rests. It was probably thought advisable by the house, at that time, when its numbers were growing formidable even to itself, to promulgate this new doctrine; and having done so in the case of these two»small towns, it seemed highly expedient to do the same with the two large ones; particularly as they were at the very base of the capítol, and for that and other obvious reasons, were in an especial manner bound to recognize the first decisions. It is not supposed, that these cases were intended as precedents, but that they merely arose out of what was deemed a temporary expediency. The justices, in their opinion in 1815, lay great stress on the fact, that the towns were obliged to pay their own representatives, and that therefore the minority could not lay that burthen on the town; and they allude to the fact, that those qualified to vote in town affairs, and who could vote on the question of whether a representative should be sent, were a different body from those who were qualified to vote in the election of the representative. These grounds for their opinion have ceased to exist.
The house, again, may well be supposed to have acted with reference to the desired diminution of its own members. The evil thus sought to be corrected has also ceased, though the undersigned willingly admit, that this last argument might be pressed at a more favorable time than the present.
It may also be remarked, that in all the decisions on this point, the refusal to put the motion occurred at the opening of the meeting, and it would be going a step beyond any of them to unseat the member in this case. If this voting not to send has been deemed a valuable medicine, it has never been held, that the selectmen were bound to give their patients more than one opportunity to ask for it on the same day. But the undersigned gladly remark, that the decisions on this side stop here in 1819-20. There is no new law on the subject on this side. *631On the other hand. In the convention of 1820-21, for revising the constitution, the same question arose and was decided in the opposite way.1 There it appeared that the town of Charlestown had, at the opening of their meeting for the choice of delegates to that convention, voted to send six ; that only five were chosen at the first balloting; that a motion was then made, to reconsider the first vote so far as the sixth was concerned, which the selectmen refused to put; and that the balloting was then resumed, and resulted in the choice of the Hon. Leonard M. Parker. Upon this state of facts, the convention voted that the election was valid, and Mr. Parker held his seat. Though the form of the motion in this case is slightly different from that in the cases on the other side, yet the meaning is identical in all; and though the case is not strictly an authority, yet a decision of the most illustrious sons of the commonwealth, on a question where all those cases were quoted, is entitled to, and will doubtless receive, its due weight as an opinion. It is not imagined that any feeling of esprit du corps, or pride of opinion, on the part of any member of this house, will prevent it from weighing as much as a similar decision of the same men assembled as a house of representatives.
The undersigned consider the question now standing as a new one, with decisions on both sides, some of the earlier and the last on their side, the intermediate on the other. But they find, that in the case of the Adams election in 1836, (ante, 339,) a motion was regularly made, and seconded, (under circumstances, too, which rendered it reasonable.) to adjourn to the next day; that the selectmen refused to put it; that the committee on elections of the house, on the authority, doubtless, of the decisions above cited, reported the election void; and that the house, though of a political complexion different from that of the two members, rejected the report, and took no further action upon the subject; which was precisely equivalent to a vote that the members were entitled to their seats. There is some ground for supposing, that the zeal of the minority of *632the voters in that case led them to behave somewhat factiously in the meeting; and afterwards in retiring from it nearly unanimously ; but the ease goes to this point, that where the selectmen mean fairly and honestly, a mistake of their duty in regard to the putting of a particular motion, regularly made, and seconded, is not sufficient to invalidate the election subsequently made on the same day. This cast', in the opinion of the undersigned, entirely covers the present, unless the house is going to hold, at this late day, when the reasons for those old decisions have entirely failed, what was never held in the palmy days of those decisions, that this motion, in derogation of duty, is entitled to greater consideration, than a motion tending to forward the public business, or indeed than any other motion whatever.
It is a customary remark among uninformed persons, that the decisions of the house, upon questions of elections, are loose and irregular. It will be found upon examination more correct to say, that they have been regularly lenient.
In reviewing the course of decisions, upon cases in any degree analogous to the present, from ilie adoption of the constitution to the year 1843, (farther than which, the undersigned have not extended this particular inquiry.) only ten elections have been held void, in cases controverted on the ground of irregular conduct of selectmen. Among those which have been sustained, are found repeated cases where selectmen have violated most important parliamentary rales; and even the most express and valuable provisions of statutes, of remote as well as recent date, with reference to the time of violation; and the conclusion therefore presents itself, that unless the refusal to put this particular motion, that the town neglect its duty, be held a more heinous offence than any other which, it is within the capacity of a selectman to commit, the member from Plympton is entitled to Ids seat, even upon the state of facts assumed to exist by the petitioners themselves.
If it be said, that this part, of the defence stands upon technical grounds, it is replied, that, the point presented by the petitioners is purely technical. A legal argument upon a point of *633law should be answered by a legal argument bearing upon the same point.
Finally, the undersigned repeat, that if their view of the facts in the case be deemed the correct one, or if it be not affirmatively shown to be incorrect, so as to rebut the presumption of law, then it must be admitted that the election was valid. If, on the other hand, the view of the facts taken by the petitioners be deemed and taken to be established beyond a reasonable doubt, even then, to hold the election void would be, in their deliberate judgment, to violate the plainest principles of public policy, and to re-establish the authority of unfortunate precedents, the reasons for making which have ceased to exist, and which may fairly be considered as wholly overthrown by subsequent decisions.
The undersigned can therefore only arrive at this conclusion, that the member from Plympton is entitled to his seat, and that the petitioners have leave to withdraw their petition.”
The report was amended, by striking out the concluding paragraph, and substituting therefor the conclusion stated by the minority ; and the report, as amended, being agreed to,1 it was accordingly—
Resolved, That the member returned from Plympton is entitled to his seat, and that the petitioners have leave to withdraw their petition.
This is a mistake ; the committee in that-case reported against the election; hut the house rejected the report.
See the case of Charlestown, ante, 226.
See the ease of Charlestown, ante, 226, and the case of Boston, 221, to this point.
Reprinted in the present volume.
Westminster, 1790-1, ante, 32; Topsham, 1802-3, ante, 43.
In the Westminster case, the memorialists say : — “The principle held out and acted upon, that every town has a right to vote they will not send a member to the general court, strikes at the very nerves of the constitution, and throws the people into anarchy at once.”
Ante, 120.
Ante, 157.
Thomas Thorpe, who was speaker of the house of commons, in the 31 of H. YL, was sued by Richard, duke of York, during the recess of parliament, in the exchequer. The plaintiff obtained a judgment and execution, upon which Thorpe was arrested and committed to the Fleet prison. When the parliament met, after the recess, the whole house of commons presented a petition to the lords, for the enlargement of their speaker. The lords, thereupon, as appears by the record, “ not intending to impeach or hurt the liberties and privileges of them, that were commons for the said conirnunalities of this land to this present parliament, but legally, after the course of law, to minister justice, and to have knowledge what the law will weigh in that behalf, opened and declared to the justices the premises; and asked of them, whether the said Thomas ought to be delivered from prison, by force and virtue of the privilege of parliament or not. To the which question, the chief justice, in the name of all the justices, after sad communication, and mature deliberation, had among them, answered and said : — That they ought not to answer to that question ; for it hath not been used aforetime, that the justices should in anywise determine the privilege of this high court of parliament; for it is so high and mighty in this nature, that it may make law, and that that is law, it may make no law; and the determination and knowledge of that privilege helongeth to the lords of the parliament, and not to the justices : Rut, as for the declaration of proceeding in the lower courts, in such cases, as writs of supersedeas of privileges of parliament be brought and delivered, the said chief justice said, there be many and divers supersedeas of privilege of parliament brought into the courts; but there is no general supersedeas brought to surcease all processes ; for, if there should be, it should seem that this high court of parliament that ministreth all justice and equity, should lett the process of (he common law; and so it should put the parties complainant without any remedy, for so much as actions at common law be not determined in this high court of parliament; and if any person, that Is a member of this high court of parliament, be arrested in such cases as be not for treason or felony, or surety of the peace, or for a condemnation had before the parliament, it is used, that all such persons should be released of such arrests,,and make an attorney, so that they may have their freedom and liberty freely to intend upon the parliament.” The lords, upon this answer, resolved that Thorpe, “ according to the law,” should still remain in prison for the cause stated; “ the privilege of parliament, or that the same Thomas was speaker of the parliament, notwithstanding *628and that the commons should he commanded, in the king’s name, to proceed to the election of another speaker, ts with all goodly haste and speed.”
The reasons assigned by the judges, for declining to express an opinion on the question of privilege, though probably true at that time and long afterwards, namely, that pdvilege is not defined by law, but is whatever the house, in their discretion, may choose to make it, would not be generally admitted, at the present day, in England, and certainly does not, if it ever did, exist in this country.
Ante, 198,
6 Greenleaf’s Reps, App. 496,
Journal of the Constitutional Convention, page 36.
73 J. H. 549. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502613/ | “ The undersigned, justices of the supreme judicial court, having considered the several questions proposed to them by the senate, conformably to their request, thereupon respectfully submit the following opinion
These questions arc stated as follows :
‘ 1. Has the legislature constitutional power to change the boundary lines of the counties, as now established in this commonwealth ?
2. Has the legislature constitutional power to change the boundary lines of towns, when by so doing, they must change the lines of counties, which are established as permanent senatorial districts ?
3. Does the territory of each town in the commonwealth, as existing at the time of the last apportionment of representatives by the governor and council, constitute, until the next apportionment, a permanent representative district; or has the legislature power to annex a portion of one town to another, so that the inhabitants residing on such portion shall have a right to vote, in the election of representatives to the general court, with the inhabitants of the town to which such portion is annexed 1’
Before proceeding to a direct answer, the undersigned beg *635leave to refer to an opinion submitted to the legislature, March 29, 1839, which appears to us to have a strong bearing upon some of the subjects embraced in the foregoing questions. Two only of the present justices joined in the expression.of that opinion, the other three having been since appointed; but all the undersigned, having now examined that opinion, see no reason to alter or change it, but on the contrary concur in and confirm the same, so far as it applies to the questions now presented.
In answer to the first question, we are of opinion, that the legislature have full constitutional power to change the boundary lines of counties, as now established, by transferring one entire town from one county to another, or by erecting a new county, by setting off any number of entire towns, from one, or from several comities, and forming them into a new comity, for all purposes of civil and criminal jurisdiction of courts, and for all other purposes, for which counties are by law established in this commonwealth, except that of constituting senatorial districts, as hereinafter explained. We have confined this answer to the case of transferring an entire town, because we suppose this fully answers the question intended to be put by the senate. The difficulties both as to the jurisdiction of courts, and the rights, duties and obligations of individuals, as inhabitants of a county, which would arise from an attempt to include part of a town in one county and part in another, for general county purposes, would be so great and so obvious, that we have supposed it was not contemplated by the senate, and therefore we have not thought it necessary .to form or express any opinion upon this question,
2. In answer to the second question, the undersigned are of opinion, that the legislature have constitutional power to change the boundary lines of towns, when, in their judgment, the public good requires it, for all purposes, other than those incident to the election of senators and representatives in the general court, although by so doing they must change the lines of counties. To prevent any misconstruction of this opinion, it will be necessary to state the grounds of it somewhat at large.
*636The legislature have full power under their general authority to pass all useful and wholesome laws, to change the boundaries of towns, to any extent, where it is not limited and restrained by constitutional provisions. By an amendment of the constitution, set forth in a resolve of 10th March, 1840 c. 16, adopted by vote of the people, and declared by the proclamation of the governor, issued 17th April, 1840, to be in force as a part of the constitution of the commonwealth, from and after that date, it is declared, as follows: ‘ The several senatorial districts now existing shall be permanent. ’ In order to perceive the full effect of this constitutional provision, it is necessary to look at the law as it then stood, in order to ascertain the force and effect of the words ‘ now existing.’ Prior to this amendment, the limits of senatorial districts, and the apportionment of senators amongst them, were fixed by law. By the Rev. Stats, c. 5, § 2, the several counties were made senatorial districts, except that Nantucket and Dukes counties were united to form one district. This law was in force when the amendment was adopted, and the effect of the amendment was, to make the counties, with their then actual limits, permanent senatorial districts. That which is made permanent by the constitution cannot be changed by law. But it is not incident to the appropriate character of a county, to choose senators; but the territory of comities seems to have been an easy, convenient, and well marked designation of the limits to constitute the lines of senatorial districts, and for that reason was adopted. Counties then became senatorial districts, not because there is any necessary or legal identity or coincidence between counties and senatorial districts, but because the territories composing counties, on the 17th of April. 1840, were, by force of the constitutional amendment, made permanent senatorial districts.
But in exercising this power, it will be necessary for the legislature carefully to provide, that in changing the line of the county such change, whilst it shall effectually set off the territory from one county and annex it to the other, so far as it concerns the jurisdiction of courts, and for all proper county *637purposes, shall not alter the relations of the inhabitants of such territory, as members of the senatorial district to which they belong: but on the contrary, to provide, that for the purpose of voting for senators, all the persons residing, or who may come to reside, on the territory thus transferred, shall be taken and deemed to be inhabitants of the town from which such territory was set off, and shall have a right to vote for senators therein, in the same manner, as if such territory had. not been set off.
Such a change of county lines, without a change of the limits of senatorial districts, whilst these must be permanent and unchangeable, until the constitution in this respect shall be altered, would be manifestly attended with great inconvenience, so great indeed, that the legislature would not probably adopt if, except upon urgent considerations of public expediency ; but these inconveniences and difficulties do not appear to us, to amount to a legal prohibition to the exercise of this power by the legislature, should any public exigency require it. We have, therefore, felt bound to answer the question proposed, affirmatively, that in our opinion, the legislature have the constitutional power to change the lines of towns lying in different counties, although they thereby change the lines of counties, provided it is done under such restrictions and limitations, that it shall not change the senatorial districts, designated by county lines, as they stood and were established in April, 1840, and made permanent by the amendment then adopted, nor essentially interfere with the rights of all persons within such districts, to vote in the election of senators.
3. The third question, we think, is substantially answered, by the opinion hereinbefore referred to, given in March, 1839, and by the considerations expressed in the answer to the next preceding question. The amendment of the constitution, adopted in 1840, provides for the apportionment of representatives amongst the several towns of the commonwealth, adopting with some alterations the principles of an earlier amendment, upon which the opinion before referred to was *638founded. The apportionment is to be made upon the numbers of inhabitants, and not of ratable polls. It provides for a decennial census of the inhabitants; and thereupon an apportionment is to be made, by the governor and council, for the term of ten years; and any town, having less than 1200 inhabitants, shall have a representative a certain n umber of years, within each term of ten years, giving them the right to send a representative, in such years of the ten, within the number apportioned to them, as they shall by vote determine. The third question depends upon the true construction of this article of amendment, and in answer thereto we say, that in our opinion, the territory of each town in the commonwealth, as existing at the time of the next preceding apportionment of representatives by the governor and council, does constitute a fixed representative district, to remain so fixed until the next apportionment. We think it follows, as a necessary consequence, that the legislature have not the power to annex a portion of one town to another, so that the inhabitants residing on such portion shall have a right to vote, in the election of representatives, with the inhabitants of the town, to which such portion is annexed; — but that it is within the constitutional power of the legislature, so to annex one portion of a town to another, reserving and securing to the inhabitants, residing on such portion, the right to vote in the election of representatives in the general court with the inhabitants of the town from which such portion has been set off, until the expiration of the remainder of said term of ten years, when another apportionment is directed to be made.
. LEMUEL SHAW, CHARLES A. DEWEY, THERON METCALF, RICHARD FLETCHER, GEO. T. BIGELOW.
Boston, March 28th, 1851.” | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502615/ | The committee on elections, to whom was referred a memorial of James Townsend and six others, praying to be admitted as members, on the ground, that they had been duly elected, and ought to have been returned, as such, from the city of Lowell, reported thereon, on the 18th of February, as follows:—
“ The memorialists allege, that in five of the wards of th city of Lowell, at the election on the second Monday of November last, the proceedings were regularly conducted and legal, and that in the other ward (ward 4) the proceedings were illegal, irregular and void : and that in the five wards whose proceedings were legal, the memorialists each had a majority of the votes cast, and are entitled to their seats as members of this house.
The facts proved before the committee, are these;—
*643The meetings in the several wards were properly called and conducted, till after the close of the poll, and the sort lug, counting and declaring of the votes.
After the declaration in ward four, the \v,ml clerk commenced to make up his record, but it being cold and the ward room badly lighted, the meeting was dissolved, and lie look his memoranda of the counts, from which the declaration had been made, and the ward book, and went to his counting-room, where, after supper, the remainder of the record was' made up, and a transcript thereof signed, and sent to the city-clerk; from the phraseology of the city charter, some of the ward officers in ward four thought it their duty, to record and return the whole number of votes, instead of the whole number of ballots, for senators and representatives, and did so make up their record and return; and subsequently, finding they had made a mistake, they amended the record, and sent a transcript of the amendment to the mayor and aldermen, who did not consider themselves authorized to act upon it.
The committee are of opinion, that the proceedings of the wards having been legal and proper till after the sorting,counting and declaration of the votes, and no doubt existing as to who received the majority, the election in all the wards was valid; and neither of the memorialists having received a ma-~ joritv, that they have leave to withdraw their memorial.”
The report was agreed to on the 20th of 'February.1
74 J. H. 267. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502616/ | The election of Joseph B. Nye, returned a member from the town of Piympton, was controverted by 3l«dm Perkins and five others of that town, on the ground. i£ thffi dm Iowa clerk, *644at the time of Mr. Nye’s election, held his office by an appointment from the selectmen, and not by a vote of the town.”
The committee on elections, to whom the case was referred, reported thereon, that the town clerk of Plympton having died, previous to the first of November last, the selectmen, under the authority of the Rev. Sts. c. 15, § 50, appointed a clerk pro tempore,1 who was duly sworn to perform his duty, and officiated as clerk at the annual election on the 10th of November, when Mr. Nye was elected a representative by a majority of seventy-five votes.
The committee further reported, that, “in the absence of all allegation of fraud, [or of any intentional neglect on the part of the selectmen,] and from the fact that no objection was raised at the time by the voters,” they were of opinion, that the election was not void, and therefore that the petitioners have leave to wi thdraw their petition.
The report, as originally made, was amended by inserting the words in brackets, and, as amended, was agreed to.2
By the Rev. Sts. c. 15, § 49, whenever, at any town-meeting, there shall be a vacancy in the office of town clerk, or he shall be absent, the selectmen are to call on the qualified voters present to elect a clerk pro tempore ; and by § 50, in other casesf the selectmen are authorized to appoint a clerk. The clerk, so chosen or appointed, is required to be sworn.
74 J. H. 195. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502971/ | OPINION
Opinion delivered by
YAZZIE, Chief Justice.
This is an appeal from a Tuba City Family Court decision on child support modification and arrearages. On January 17, 1984, the Tuba City District Court granted a divorce between Appellant Harry Yazzie (father), and Appellee Stephanie Yazzie, a/k/a Stephanie Phillips (mother). The parties agreed that the father would pay $400 per month as child support. The court entered a stipulated order on January 17, 1984. The father has not paid child support for the past ten years.
The mother first attempted to get a judgment on the accrued arrearage through the Coconino County Superior Court, which decided that the issues must be resolved in the Navajo Nation courts. On November 15, 1993, the mother petitioned the Tuba City Family Court for an order to show cause why the father should not be held in contempt for failure to pay child support, for a judgment to fix the arrearages, and to increase the amount of child support.
The father was not properly served with the order to show cause pursuant to Rule 4(b) (3) (A) of the Navajo Rules of Civil Procedure. He was not served personally, by certified mail, or by publication, but nonetheless, he received a notice of hearing issued by the court. The father moved to dismiss the petition for lack of proper service of process, but the motion was denied.
The Family Court determined that the father had not paid child support for ten years and the accumulated arrearages totaled $48,000. Judgment was entered in favor of the mother, awarding her the arrearages plus ten percent interest on the lump sum, or $4,800. The Family Court also increased the monthly child support *204from $400 to $540. Finally, the court ordered that the father’s wages be garnished in the amount of $1,000 per month, with $540 going to child support and $460 toward the arrearages.
I
The issues before the Court are as follows:
1. Whether the Tuba City Family Court abused its discretion in denying the father’s motion to dismiss the petition for a lack of proper service of process;
2. Whether the Tuba City Family Court abused its discretion in assessing interest on the arrearages; and
3. Whether the Tuba City Family Court abused its discretion in granting an increase in child support payments.
II
The father claims that the Family Court abused its discretion when it denied his motion to dismiss the petition for improper service of process. This Court has stated that “the primary purpose for having rules of service is to ensure the parties are notified and have an opportunity to defend.” Peterson v. Frontier Ford Corp., 2 Nav. R. 36, 41 (1979).
The father was not served with process by the methods prescribed by the Navajo Rules of Civil Procedure. He was, however, present and accompanied by counsel at the hearing on the order to show cause. Further, he was prepared to argue his case. Any violation of the service rules was cured by the father’s appearance. He was provided with notice and an opportunity to be heard, done through the notice of hearing served by the court. At no time did the father argue that he was prejudiced by the lack of proper service.
The child’s best interests are paramount. Allowing the father to avoid his obligation to his child due to a nonprejudicial, procedural error is contrary to the common law of the Navajo People. Under Navajo custom, “a father of a child owes the child ... the duty of support.” Tom v. Tom, 4 Nav. R. 12, 13 (1983). As stated in Arviso v. Dahozy, 3 Nav. R. 84, 85 (1982), “[t]he primary party to be considered ... is the child, and providing for her support is the goal.” Under Navajo common law, a crier for a Naat’aanii would give oral notice to those interested in a problem. When the people arrived to “talk things out,” it would be very unusual for someone to say the discussion cannot proceed because notice was not given in a particular way. So long as a person had fair and sufficient notice of the proceeding, that was all that was required.
We find the Tuba City Family Court did not abuse its discretion in denying the father’s motion to dismiss for lack of proper service.
*205III
The father contends that the Family Court abused its discretion in imposing interest on the arrearages because no Navajo Nation statute allows for such interest. He claims that no interest should be imposed. Imposing interest on arrearages is within the power of the Navajo Nation courts to enforce their judgments. The trial court has the discretion to set a reasonable amount of interest. See Descheenie v. Mariano, 6 Nav. R. 26, 28 (1988).
In determining the interest rate, the Family Court looked to guidelines of the Arizona Child Support Enforcement Agency. Arizona imposes a flat ten percent interest rate, A.R.S. § 44-1201 (1994), and that was applied by the Family Court. The father has not shown that ten percent is unreasonable and we find no abuse of discretion by the Family Court in applying that rate.
The mother argues that interest should be calculated monthly, rather than on the lump sum. She argues that because each delinquent child support payment is a judgment, the interest should be calculated on each month’s judgment. We agree with the mother because, as one court put it, “[e]ach installment of... support is vested as it becomes due, ... constituí[ing] legal indebtedness for which the law allows the imposition of interest....” Jarvis v. Jarvis, 553 P.2d 1251, 1253 (Ariz. Ct. App. 1976) (citing A.R.S. § 44-1201). Each month that child support is due and not paid is an accruing judgment. Interest can be properly assessed on that delinquent judgment.
The following formula shall be used by our courts in calculating interest on delinquent child support. A ten percent interest rate shall be applied. This interest rate shall be calculated on a month-to-month basis. To make the calculation, multiply the principal balance due (the delinquent child support amount for that month) by the interest rate (10%). Then divide that figure by the number of days in the year (365). The result is the daily interest figure. Next, multiply the daily interest figure by the number of days that interest is owed (the number of days in the month, i.e., 29,30,31), and the result is the next amount owed for that month.
For example, to calculate the sum owed on $400 per month, first multiply the amount past due for the first month ($400) by the interest rate (10%). That is $40. Then divide that figure by 365. That is .109589, the daily interest figure. Next, multiply the daily interest figure by the number of days in that month. For example, if the first month for which child support is past due is April, which has 30 days, multiply .109589 by 30. The result ($3.29) is the interest owed for the first month.
If May goes unpaid also, then take the principal balance due $803.29 ($403.29 plus the $400 for May), and multiply it by ten percent. That is 80.329. Now divide 80.329 by 365, giving you the daily interest figure of .2200795. Multiply the daily interest figure by the number of days in May (31). The amount of interest on the balance owed is $6.82. This process is continued for each month child support is not paid. It is a compound interest formula, which means the interest *206is added to the principal each month. The purpose of assessing interest on the arrearages is not to penalize or punish. Interest is used to reach an equitable amount to be paid. This formula will be used as an incentive for the parent paying child support to pay on time.
This issue shall be remanded to the Family Court to calculate interest consistent with this opinion. After recalculation, the Family Court can enter another order garnishing appellant’s wages.
IV
This opinion will give future guidance to trial judges and potential petitioners who want a child support decree modified. The following will set out the proper procedure for applying for the modification of child support. It will set the guidelines for determining sufficient cause for a child support modification.
Modification of a monthly child support decree is within the discretion of the trial court. Joe v. Joe, 1 Nav. R. 320 (1978). Child support awards are modifiable, upwards or downwards, on a showing of changed circumstances. Recently the Navajo Nation Council enacted legislation on child support enforcement. Section 8 (F) of the The Navajo Nation Child Support Enforcement Act (1994), Navajo Nation Council Resolution No. 95-01 (enacted Dec. 20, 1994), provides the procedure for modifying child support: “Either parent may petition the hearing officer for an order based on a showing of a change of circumstances requiring the other parent to appear and show cause why the decision previously entered should not be prospectively modified.” (emphasis supplied). This Act will apply to courts as well.
The method to apply to the court for modification under the Act is by petition. This method requires that the individual be served with process under Rule 4(b) (3) (A) of the Navajo Nation Rules of Civil Procedure. It is important that this Act be made applicable in the Navajo courts so that the law is uniform throughout the Navajo Nation. In addition, it should be emphasized that the Act applies for non-AFDC cases. The Act will be liberally construed so that cases involving child support are not dismissed due to a nonprejudicial, procedural error when the purpose of the rule should be served.
We dispense with the former “substantial change in circumstances” rule, Brown v. Brown, 3 Nav. R. 239 (1982), in favor of the language set out in the Navajo Nation Child Support Enforcement Act (1994): “a showing of a change of circumstances.” The change of circumstances standard is less stringent than the former rule. Even though the Act was not applied by the Family Court, the modification is not an abuse of power because a higher standard was used by the Family Court. Therefore, it should pass under the Act’s less stringent standard.
In this case, the Family Court found many changes since the original decree was filed, which justify increasing the monthly child support amount. At the time of the original decree, the child was a one-year old. She is now eleven years old. *207Her needs have increased in many aspects: 1) she eats more than when she was an infant; 2) her clothes are more expensive; and 3) she has to pay tuition to the private school she attends. The parental circumstances have also changed. Her mother does not have a steady income to provide her daughter with these necessities. The mother and her parents pool their income to provide for her daughter. The father is capable and has the resources to pay the increased child support and the arrearages.
The Family Court based its determination upon the evidence presented and the testimony of the parties, and came to the conclusion that an increase in child support was warranted. The Family Court did not abuse its discretion when it ordered an increase in the amount of child support.
The Family Court judgment is AFFIRMED in part, REVERSED in part, and REMANDED with instructions. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502972/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
Tohatchi Special Education and Training Center, Inc. and Gordon Nez (“Appellants”) appeal a default judgment entered against them for abuse of the discovery process and failure to pursue their claims. The issue is whether the district court abused its discretion by entering default judgment against the Appellants.
I
On November 22, 1993, MacArthur Halona (“Halona”) sued the Appellants alleging various counts related to breach of an employment contract. The Appellants answered on February 2, 1994, alleging a counterclaim of defamation. They retained Albert Hale (“Hale”) as legal counsel.
At a pretrial conference on May 2,1994, where all the parties appeared, the district court ordered that discovery would terminate on August 31, 1994. Shortly thereafter Hale began campaigning for the office of Navajo Nation president.
Between June 6, 1994 and August 8, 1994, Halona sent the Appellants interrogatories, which they did not answer, nor did they request additional time to answer. On August 8, 1994, Halona filed a Motion to Compel Discovery and a Motion for Extension of Time to Complete Discovery.
On August 26, 1994, the district court granted Halona’s motion, ordering the Appellants to comply fully with discovery by September 7, 1994. However, the Appellants still did not answer the interrogatories. Halona then drafted a Notice *209of Withdrawal of the Motion to Extend Discovery and a Motion for Judgment in his favor. He mailed copies of the drafts to Hale.
At a pretrial conference on September 12, 1994, Hale stated that he had voluminous discovery documents. At the same pretrial conference, Halona filed the Notice of Withdrawal of Motion to Extend Discovery and the Motion for Judgment. The Motion for Judgment cited the Appellants’ flagrant and willful disobedience of the discovery orders. The court orally denied Halona’s Motion for Judgment despite the Appellants’ non-compliance and failure to pursue discovery in support of their counterclaim. The court also orally directed Hale to produce answers and documents by the end of the day.
On September 30,1994, the district court filed its order on the September 12, 1994 pretrial conference. The court denied judgment for Halona, but ordered the Appellants to deliver complete responses to requests for production and answers to interrogatories by September [sic] 12,1994.1 The court awarded Halona costs, which were to be paid by October 19,1994, as a sanction for the Appellants’ failure to disclose on time. The court also conditioned the Appellants’ ability to maintain their counterclaim on their compliance with discovery orders. Lastly, the court extended discovery sixty more days, until November 30, 1994.
On October 13, 1994, the Appellants partially answered the interrogatories and partially delivered requests for production. They also filed an Amended Complaint and Counterclaim.
On October 27, 1994, Halona filed a Second Motion for Judgment on the grounds that the Appellants had only partially complied as ordered. On November 21, 1994, Halona filed a pretrial statement. The Appellants did not.
The Appellants did not appear at a pretrial conference on November 28,1994. Furthermore, they had not paid the sanctions as ordered on September 30,1994. At the conference, the court granted Halona’s Second Motion for Judgment on breach of contract finding that the Appellants’ “repeated failures ... to provide discovery and to diligently pursue their claims, in view of the Court’s Orders to produce discovery, amounts to willful and flagrant abuse of the [discovery] process....”
A trial on damages was held and the court filed its final judgment on December 30, 1994. The Appellants appeal the default judgment.
II
A trial court has discretion to impose sanctions, including entry of judgment or dismissal of complaint, for a party’s failure to obey discovery orders. Nav. R. Civ. P. 37(b) (2) (C). This Court will not overturn a trial court’s default judgment unless it is clear that the district court abused its discretion in sanctioning parties for their non-compliance with discovery orders. Jones v. Teller, 7 Nav. R. 53, 55 (1993); Billie v. Abbott, 6 Nav. R. 66, 76 (1988); In re Summary Contempt of: Tuchawena, 2 Nav. R. 85, 89 (1979).
*210A district court may enter judgment after finding flagrant disregard of its order compelling discovery, flagrant abuse of the discovery process, or willful and bad faith failure to comply with its discovery orders. Chavez v. Tome, 5 Nav. R. 183, 186 (1987); Four Corners Auto Sales, Inc. et al. v. Begay, 4 Nav. R. 100, 103 (1983). In Billie, 6 Nav. R. at 76, we also required a finding that failure to comply with the court’s order was willful and the circumstances were so aggravated as to justify a default.
Synonymous terms mentioned above can be applied as a whole, each phrase enlightening the extremity of discovery abuse that must occur before a court has discretion to enter a default judgment. These terms attempt to balance conflicting interests: courts must prevent parties from delaying other parties during their trial preparation, while simultaneously facilitating the adjudication of cases on the merits. Billie, 6 Nav. R. at 76.
A default judgment will be reviewed scrupulously, lest trial courts employ them to sanction actions that are not extreme abuses of the discovery process. Id. Trial on the merits is strongly favored over default. Id. We will overturn a default judgment only when a trial court has abused its discretion, not when this Court would have chosen a less severe sanction than the default judgment. Id. The district courts can help ensure their free exercise of discretion by considering lesser sanctions before entering a default judgment for discovery abuse. See Four Corners, 4 Nav. R. at 103.
The Appellants’ principal argument in this case is that they did not receive notices of motions, orders, and hearings; thus, they were not at fault for failure to respond to discovery requests. The Appellants do not claim that their counsel, Hale, did not receive the orders or pleadings. Rather, they claim that Hale did not inform them about these matters. They claim they are not at fault individually, for the conduct that resulted in the default judgment against them.
In Chavez v. Tome, we ruled that a client against whom a district court had entered a default judgment could not cast the blame on his counsel. 5 Nav. R. at 188-89. There, the court entered a default judgment on liability against Tome, as a sanction for his consistent failure to comply with discovery rules and the court’s order compelling discovery. On appeal Tome argued that it was unfair to punish him “... for the failings of his counsel.” Id. at 186. Our holding on that point applies here:
The incapacity of counsel will not allow a party to escape the consequences of having freely selected that particular counsel. A party to a suit has a responsibility to maintain contact with his counsel and assure that his case is being handled properly. The court cannot be made the watchdog of the attorney-client relationship to assure that the client has made a good choice as to his attorney. This would be inconsistent with our system of representative litigation. Further, it would be unfair to penalize the opposing party and malee them relitigate all the issues, when there is an action for malpractice available to any party who feels that their counsel’s conduct has fallen below what *211would be reasonable under the circumstances.... When Tome became aware of [his counsel’s] intention to withdraw he should have immediately obtained other counsel. The record shows that Tome knew, at least at the time of deposition, of [his counsel’s] intent to withdraw, yet he took no steps to protect his own interest.
Id. at 188-89.
In Jones v. Teller, 7 Nav. R. at 56, we said that counsel could not use his inability to contact clients by telephone as excusable behavior that would bar an order for default judgment. When the clients arrived at his office unannounced, the attorney was not there nor had he prepared his staff to handle discovery preparations in his absence. Consequently, the district court dismissed the claim for failure to prosecute. We found that “[t]he counsel’s alleged inability to communicate with his clients was not created by the court; thus, it cannot support reversal of the court’s order.” Id.
The Appellants attempt to distinguish their situation from that in Jones. They argue that whereas in Jones the defaulted plaintiff never attempted to comply with court orders himself and never attempted to contact counsel, here the Appellants made a serious effort to comply and reasonably relied on their attorney. They gave their attorney all documents they thought would satisfy Halona’s interrogatories. They did not appear at pretrial conferences because they themselves never received notice. The Appellants claim that their attorney did not inform them of the district court’s scheduling of their case. They claim they should not be punished for their attorney’s lack of diligence.
We are not persuaded by the Appellants’ argument. The Appellants retained counsel who acted as their agent and representative. When a court communicates with counsel, it has communicated with that counsel’s client. Tome, 5 Nav. R. at 189. The civil procedure rules support the position that when counsel is served, a client is served: “If a party is represented by counsel, the service shall be made upon counsel unless the court orders otherwise.” Nav. R. Civ. P. 5(b).
Despite established Navajo law, the Appellants urge this Court to adopt a new standard of discretion. They point to an evolving body of law which requires a trial court to determine who acted with contempt (client, counsel or both), then sanction accordingly. The Appellants state that this rule evolved in the Texas courts through interpretation of Texas Rule of Civil Procedure 215, a rule similar to Nav. R. Civ. P. 37.
The Appellants analogize their case to Monarch Homes, Inc. v. Candlewood Joint Venture, 817 S.W.2d 768 (Tex. App. 1991), which interprets the Texas rule. There the trial court awarded a default judgment which the appellate court reversed because “[f]irst... a party should not be punished for counsel’s conduct in which it is not implicated apart from having entrusted to counsel its legal representation ... [and sjecond just sanctions must not be excessive.” Id. at 770. Applying the two-part, Monarch standard, Appellants argue that, first, their attorney’s conduct is contemptible and their own conduct is not and, second, sane*212tioning them with a default judgment is excessive.
We will not adopt the Monarch standard for two reasons. First, the Texas Supreme Court said it was difficult to apply: “The trial court must at least attempt to determine whether the offensive conduct is attributable to counsel only, or to the party only, or to both. This we recognize will not be an easy matter in many instances.” Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). Second, the Tome decision articulates policy reasons which reject the standard. Parties cannot escape the consequences of incapable counsel after freely selecting that particular counsel. This policy is underscored when, as the Appellants’ case demonstrates, clients are sophisticated business entities or executives who have the ability to monitor their attorney’s behavior.
Clients bear responsibility to maintain contact with their attorneys and assure that their cases move forward. Although they may not have the technical expertise to determine which tactical maneuver would serve their best interests at each turn in the adversary process, clients can and should demand explanation and performance from their attorneys throughout their service. If attorneys fail to maintain a productive relationship and protect their clients’ interests, clients must initiate a change and take their business elsewhere. As stated in Tome, courts cannot act as watchdogs of the attorney-client relationship because such oversight would be inconsistent with the Navajo system of representative litigation. Here, the Appellants are sophisticated clients who knew of imposing deadlines of discovery, who knew of the consequences of failing to produce discovery materials, who knew that their attorney had chosen to pursue an elected office and was devoting limited time to their case, and yet they failed to discharge him when poor communication became evident.
In an appropriate case a district court may distinguish between the conduct of client and counsel if the facts and circumstances justify such an inquiry. However, where clients are corporate organizations or where they can make sophisticated and capable decisions, our courts need rarely, if ever, distinguish between client and counsel conduct.
As an alternative to adopting the Texas standard, the Appellants argue that Tome need not be overturned to reverse the district court’s order of default judgment against them. They argue that the ruling in Tome applied to the specifics of that case, where Tome’s own conduct justified default judgment. The Appellants urge that this Court can both remain within Tome’s standard and overturn the default judgment as it did in Billie.
Yet, the facts of this case resemble Tome more than they do Billie. Like Tome, the clients themselves failed to produce discovery when they knew they bore responsibility to do so. On May 2, 1994, the Appellants appeared at the pretrial conference where trial dates and discovery deadlines were negotiated. However, after they were served interrogatories and requests to produce, which were due by July 11, 1994, they still had not provided answers by August 8, 1994.
*213On August 26, 1994, the district court ordered the above-mentioned discovery to be completed by September 7, 1994. The Appellants knew of impending sanctions, yet made minimal effort to forward discoverable material to Hale. The district court imposed sanctions and even warned them about dismissing their counterclaim and entering default judgment against them if they continued to ignore discovery orders.
Although the Appellants produced documents and answers to the interrogatories on October 13, 1994, they were incomplete. Also, the Appellants made no discovery related to their own defense or counterclaim. They further admit to the following: failure to pay court-ordered sanctions on time; failure to file a pretrial statement; failure to appear at a pretrial conference on November 28, 1994; and failure to appear at the trial on damages. Their only explanation for their failures is that their counsel failed to communicate with them.
The Appellants state that the last telephone contact they had with their counsel occurred sometime between August 15 and August 31,1994, and the last contact by mail occurred before September 22, 1994. They admit to not knowing about the changes in trial schedule due to lack of communication with their counsel. They argue that they would have complied with any order and discovery had they known of the deadlines and orders.
Ignorance is no excuse for lack of diligence. Unfortunately, the Appellants did not diligently maintain communication with their counsel and this left them ignorant. They even admit that their general counsel merely trusted Hale as an attorney, because Hale had over seventeen years of legal experience. The district court concluded that this inattention was the result of willful and flagrant abuse of the discovery process and we agree.
The district court was mindful of the parameters of its discretion in awarding default judgment. The court initially decided not to award a default judgment, preferring to admonish the Appellants and impose lesser sanctions. In fact, the Appellants failed to pay the sanctions (costs) until after the default judgment was entered against them.
The Appellants argue that the district court should have ordered a hearing to show cause. The facts and circumstances of this case show that would have been a futile gesture. We believe the district court was correct in choosing other procedures to deal with the Appellants’ repeated discovery abuses.
Finally, the Appellants argue that their due process rights were violated, because default judgment was awarded without their presence and notice to them. The Appellants had prior notice of what they were to do and the consequences for failure to do it. No additional notice is required for entry of default under our rules. Under the Navajo Nation Bill of Rights, 1 N.T.C. § 3, and Navajo common law, due process requires notice and an opportunity for all parties to speak. When a party freely chooses counsel, that party chooses to receive notification by and through that counsel. Clients have the responsibility to require their counsel to continue communication with them. Neither the courts *214nor opposing parties bear this responsibility. The Appellants’ due process argument is without merit.
In summary, the Appellants cannot blame the district court or the opposing party for their inability to communicate with their attorney. Hale was notified of all court proceedings and he had an opportunity to appear at those proceedings. Consequently, the Appellants also had an opportunity to speak there. We hold that the district court did not abuse its discretion in awarding judgment on liability and damages to Halona.
The Window Rock District Court's December 30, 1994 decision is AFFIRMED.
. The court likely intended October, and not September. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502973/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
The issue in this case is whether individual parties have standing to assert the Navajo Nation’s defense of immunity from suit. We hold that they do not.
I
In March 1992, the Petitioners prepared a range management plan for their customary use areas. The plan then underwent a series of approvals: the District 17 Grazing Committee approved it in October 1992; the Resources Committee of the Navajo Nation Council approved it in June 1994; and the agency superintendent for the Bureau of Indian Affairs approved it in September 1994.
Meanwhile, on August 15, 1994, an employee with the Navajo Nation’s Agriculture Department sent a letter to the Chairman of the Resources Committee informing him that he had received a notice from an individual who was protesting the approvals of the Petitioners’ range management plan. On August 18, 1995, the individual who sent the letter, along with other individuals, filed suit against the Navajo Nation and the Petitioners in the Window Rock District Court. They alleged that they were denied due process by the grazing and resources committees and this denial resulted in an infringement upon their customary use rights. Further, they asked for declaratory relief against the two committees and injunctive relief against the Petitioners.
*216The Navajo Nation moved to dismiss alleging it was immune from suit. This motion was denied. The Petitioners’ motion to dismiss was also denied.
On June 4, 1996, the Petitioners filed this petition challenging the district court’s jurisdiction over the matter. The Navajo Nation is not a party to this petition. The Petitioners allege, in part, that the district court does not have jurisdiction because (1) the complaint against them and the Navajo Nation was not filed in accordance with the Navajo Nation Sovereign Immunity Act (“Act”); (2) the Act prohibits suits against the grazing and resources committees; and (3) the Act only allows suits against individual officers, and not the Navajo Nation, or its committees, for the purpose of compelling them to do duties.
On June 6,1996, we denied the requested relief and the Petitioners filed a petition for reconsideration of that order. The Navajo Nation is not a party to the petition for reconsideration. For the reasons stated below, we deny the petitions for writ of prohibition and superintending control and for reconsideration.
II
The Petitioners lack standing to raise sovereign immunity issues before this Court and before the district court. Standing is a threshold consideration in determining the propriety of judicial intervention in any matter. Under the standing doctrine, a court conducts a fact-based analysis of the case before it and considers whether it is appropriate to make a decision in the case. Among this Court’s considerations, we must determine whether the party seeking judicial relief is a party that can seek the relief he asks for. That is, we ask whether this party is the proper one to raise these issues. In the process, the Court must be careful not to allow a litigant to assert the other party’s legal rights and to rest his claim to relief on the other party’s legal rights. Such “third-party standing” is strongly discouraged.
In this case, the Petitioners lack standing because they are not the appropriate party to raise sovereign immunity issues. In trying to raise these issues, the Petitioners neither assert their own legal rights nor do they rest their claim to relief on their own legal rights. Instead, they rely on the legal rights of the Navajo Nation.
Only the Navajo Nation and, in certain instances, its officers may assert the defense of immunity from suit. Sovereign immunity is the doctrine which prohibits suits against a sovereign government without the sovereign’s consent. The Navajo Sovereign Immunity Act codifies the immune status of the Navajo Nation. 1 N.N.C. §§ 551-555 (1995). The Act explains that immunity “is an inherent attribute of the Navajo Nation as a sovereign nation....” (emphasis added). 1 N.N.C. § 553.B. (1995). The Act also explains the purpose of sovereign immunity as follows:
The purpose and intent of the Navajo Sovereign Immunity Act is to balance the interest of the individual parties in obtaining the benefits and just redress to which they are entitled under the law ... while at the same time protecting *217the legitimate public interest in securing the purpose and benefits of their public funds and assets, and the ability of their government to function without undue interference in furtherance of the general welfare and the greatest good of all people.
1 N.N.C. § 554.A. (1995).
The language of the Act clearly indicates that sovereign immunity is exclusively a governmental characteristic and is advanced for exclusively governmental purposes. Decisional law supports this finding, as well. See, e.g., Raymond v. Navajo Agric. Prods. Indus., 1 Nav. R. 142, 143 (1995) (“[t]his immunity from suit is an inherent attribute of Navajo sovereignty”); Johnson v. Navajo Nation, 5 Nav. R. 192,194 (1987) (“[t]he power to raise a defense of sovereign immunity ... is still within the inherent sovereign powers of the Navajo Nation”); Halona v. MacDonald, 1 Nav. R. 189, 202 (1978) (sovereign immunity “preserves the dignity of the sovereign”). As such, the defense of sovereign immunity is reserved for governments and government entities.
We hold that private individuals, such as the Petitioners, may not raise sovereign immunity as a defense against suits. Accordingly, both petitions are denied. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502618/ | The election of Ralph W. HOlman, one of the members returned from Boston, being controverted by Josiah L.c. Amee and four others on the ground of a want of residence, the committee on elections reported thereon as follows:
"The facts prove were, that Mr. Holman, had been for many years a citizen of Boston, and taxed there for his personal properly and poll-tax; that it had been his usual practice. te send his family out of town during the summer months, visiting them occasionally as his business permitted, but keeping a room for himself in the city. In 1847, said Holman built a house in Newton, which his family occupied a short time, and then returned to Boston and spent the winter. In the spring of 1848, the family re-occupied the house and remained there till August of that year, when Holman sold the house anu me xamuv !tu it. in xo-jv, iiomiau, in connection Wit II another person, built another house in Newton, and his family removed to it in April, 1851. There was evidence, that this house was only for a summer residence, and that Holman himself was only there when his business iii Boston permitted his absence, and that he kept rooms for himself in Boston, and also for his family, when they desired to occupy them. It was also proved, that Holman had always refused to consider himself an inhabitant of Newton, or to vote, or qualify himself to vote there: and although assessed for his poll-tax in that town *648in 1851. lie procured that tax to be abated, on the ground of Ms being a resident of Boston.
The question raised is, whether, by the simple fact of having removed his family to Newton before the first day of May, 1851, he was compelled to become an inhabitant of that town, and forfeit his municipal rights in Boston? The committee are of opinion, that such removal before the first of May raises a strong presumption of a change of habitancy, but that this presumption may be rebutted by evidence of the intention of the party so removing.
The committee believe, that there is no sufficient proof that Mr. Holman ever intended to become a resident of Newton, but there is satisfactory evidence, that he always intended to remain a citizen of Boston.
They therefore report that the petitioners have leave to withdraw their petition.”
This report was agreed to.1
74 J. H. 402. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502619/ | The election of Alfred A. Abbott, returned a member from the town of Danvers, being controverted by Charles A. Gardner and others, the committee on elections reported thereon as follows:-
“ It appeared in evidence, that at the election in Danvers, on the 10th of November, 1851, the votes for representatives were received, sorted, and counted, and declaration thereof made as *649follows :• — whole number of votes, 1317; necessary to a choice, 659 ; John Hines had 663, Philemon Putnam had 660, Alfred A. Abbott had 658, and Messrs. Hines and Putnam were declared elected.
As to the third representative, there was no choice, and the record of the town-meeting and the certificate of election were made accordingly.
It further appeared, that in counting the votes at said election, two envelopes with their contents were rejected, because the names of the candidates voted for were not all upon one piece of paper. In one envelope, the vote for governor, lieutenant-governor and senators, and two representatives, was upon one piece of paper, and a vote for one representative upon another; and in the other envelope, a vote for three representatives was on a separate piece of paper; but in each case, and in regard to every name, the office voted for was indicated, and all the names of persons voted for in each envelope made the exact number necessary to constitute an entire ticket.
The name of Alfred A. Abbott was upon the separate piece of paper in each of the envelopes thus rejected.
Had these votes been counted, the ballot would have stood: whole number of votes, 1319; necessary -to a choice, 660; Alfred A. Abbott had 660, and would have been elected.
In the warrant calling the town-meeting, the selectmen gave notice that all votes for governor, lieutenant-governor, senators and representatives in the general court, must be brought in on one ballot; and they rejected the two votes for Mr. Abbott, because borne on separate pieces of paper.
It further appeared, that several days subsequent to the town-meeting, the selectmen inserted the name of Mr. Abbott in the certificate containing the names of the representatives first declared elected, although the record of the town-meeting showed that he was not elected.
The committee are of the opinion, that the notice in the warrant, directing the names of all persons voted for to be on one ballot, was merely directory* and as a matter of conve*650nience, — and as there could be no doubt of the intent of the voter, and no uncertainty as to the whole number of ballots cast, the two votes rejected should be counted for Mr. Abbott, thus making the number necessary for a choice.
The committee therefore recommend that the petitioners have leave to withdraw.”
The report was agreed to.1
74 J. H. 367. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502620/ | The election of Edwin A. Whitcomb, returned a member from the town of Bolton, was controverted by Caleb J. Nourse and others, on two grounds, namely, first, that at the annual meeting on the second Monday of November, when the election took place, nine unsealed envelopes were received, which the selectmen refused to count; and, secondly, that the selectmen also neglected to take out of certain other envelopes and count two representative votes for a person other than said Whitcomb. The petitioners alleged, that if the votes contained in the nine rejected envelopes had been counted, there would have been no choice of representative.
It appeared in evidence, at the hearing before the committee on elections, to whom the case was referred, as follows: — .
The whole number of votes counted by the selectmen for representative was 215 ; necessary to a choice, 108 ; Edwin A. Whitcomb had 110; Richard S. Edes, 89; Samuel W. Kendall, 14; Caleb Nourse and J. E. Sawyer, 1 each. Mr. Whit-comb was declared to be elected, and received a certificate of his election.
*651In counting the votes, the selectmen laid aside and rejected nine unsealed envelopes, which, before a declaration of the votes was made, were afterwards opened and examined by John E. Frye, arid found to contain votes, as Mr, Fry* testified, for Richard S. Edes, 4; for Samuel W. Kendall, 3; and for Edwin A. Whitcomb, 2. There was some contradictory evidence, as to what Mr. Frye declared to be the contents of the envelopes examined by him, immediately after the examination, but the witness himself adhered to his statement as above.
Tilomas Houghton, one of the voters, took home with him from the meeting a number of the envelopes, which had been used, and, on looking them over an hour or two afterwards, found one in which there was a vote for Samuel W. Kendall for representative,
Joseph Sawyer, another of the voters, carried a handful of the used envelopes, after the meeting, to his store, in one of which he found a vote for Kendall for representative. The votes for Kendall were on separate pieces of paper; those for the other candidates were on the ballots for governor, &c.
It appeared, further, that the selectmen rejected the vote of John Stone, which would have been given for Mr. Whitcomb, on the ground, that Stone had ceased to be an inhabitant of Bolton, where he had resided for some years previous. The evidence in regard to the inhabitancy of Stone tended to show, that he had removed his family, and a part of Ms household furniture from Bolton on the Friday previous to the election ; he himself remaining in Bolton to settle up his affairs, and declaring his intention not to remove therefrom until after the election.
It appeared, also, that in one of the envelopes, there was found a vote for governor, together with a vote for Whitcomb, on a separate piece of paper, on which the office was not designated. This vote was not counted.
The committee reported, that, upon the evidence in the case, a majority of them were of opinion, that the member returned did not receive a majority of the votes, and, therefore, was not entitled to a seat as a member.
*652Three members of the committee, (Messrs. Schouler, Jones, and Bond,) dissenting from the report, presented their views to the house, in a minority report, containing a statement of the evidence in full, and concluding as follows:—
“ The undersigned believe, that the petitioners have failed to make out a case, which would justify the house in unseating the member, and they rely upon the evidence to support their opinion.
There is no doubt in regard to the legality of the meeting on the 10th of November. It was properly held and fairly conducted, from beginning to end, and Mr. Whitcomb wa,-declared to be chosen, and his certificate was given to him by the selectmen.
The petitioners rely upon two facts to vitiate the election and declare the seat vacant. These are, that if the unsealed envelopes had been counted, Mr. Whitcomb would not have had a majority of the votes, and therefore would not have been elected: and they also claim, that the two votes for Mr. Kendall, which were subsequently found by Sawyer and Hough-ton, ought to have been counted.
As regards the first point, there is a direct conflict of evidence. Mr. Frye, who opened the nine unsealed envelopes, swears positively that they contained four free soil, two democratic, and two whig votes. On the other hand, Capt. Bernard, chairman of the selectmen, who handed the votes to Mr. Frye to open and count, swears as positively that Mr. Frye, immediately after opening and counting them, told him that they contained four votes for Mr. Whitcomb (whig), three for Mr. Edes (free soil), and two for Mr. Kendall (democrat); and that Mr. Frye said, that if counted they would not alter the result. Mr. Frye admits that he repeated in the evening, that the nine votes would not alter the result, but it was under a misapprehension.
The undersigned cannot believe, that the house, for one moment, will sanction or allow the two votes found in the broken envelopes in the evening, — one in a store and the other in a private house, — to be counted. Were such a rule to be estab-*653Mshecl, there would be no security against fraud, and no means to guard the ballot-box from the most flagrant abuses. And again, it can be said as an offset, that if ail the broken envelopes had been counted, votes might have been found in some of them for Mr. Whitcomb. Ao assurance can be given, that these two envelopes did not each contain a full vote which was counted; or that the two votes found as above stated, were not either fraudulently or accidentally put in the envelopes. in addition to the two that were subsequently found. Of course the undersigned attribute nothing of the kind to either Mr. Sawyer or Mr. Houghton.
But allowing, for the sake of the argument, that the votes found in the nine envelopes opened by Mr. Frye were as he stated them to be, and that they should have been counted: That would have made the whole number of votes 224; necessary to a choice, 113. Mr. Whitcomb had 112 — -just one-half. If the selectmen had received the vote of Mr. John Stone, as we believe they ought to have received it, Mr. Whitcomb would have been elected. Again, if the vote having Mr, Whitcomb’s name upon it, but which was not counted because the office was not designated on the* ballot, had been counted, Mr. Whitcomb would have been elected without the aid of Mr. Stone’s vote.
. We say, therefore, even upon the hypothesis that the votes found in the nine envelopes were as Mr. Frye testified that they were, Mr. Whitcomb would have been elected. Upon the other hypothesis, to wit, that the votes in. the nine .envelopes were as Capt. Bernard swears Mr. Frye told, him they were, then Mr. Whitcomb would have been elected, even if the two votes for Mr. Kendall, found by Sir. Houghton and Mr. Sawyer, were counted.
. The undersigned therefore report, that the petitioners have failed to make out their case, and that they have leave to withdraw their petition, and that Edwin A. Whitcomb is entitled to his seat as a member of this house, from the town of Bolton.” . . .
The report was amended by striking out the last paragraph. *654and inserting as follows, — “ That the petitioners have not made out their case, and have leave to withdraw'and, as amended, was agreed to.1
74 J. H. 508. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502621/ | The election of William Claflin, returned a member from the town of Hopkinton, was controverted by Jefferson Pratt and others, for certain reasons stated in the report of the committee on elections, to whom the case was referred, as follows: —
“ At the annual election in Hopkinton on the 10th of November last, the declaration of the selectmen on the vote for representative was as follows: — whole number of ballots, 437; necessary for a choice, 219. William Claflin had 219; Charles Seaver, 212; A. W. Johnson, 3; L. P. Coburn, 1; D. J. Nye, 1; J. A. Fitch, 1; and William Claflin was declared to be chosen. The record was made up in accordance therewith, and a certificate duly issued thereon.
The petitioners set forth, that ‘the selectmen refused to count seven ballots, found in unsealed envelopes, and that if all the ballots given in for a representative had been counted, no person would have been constitutionally elected!
It appeared in evidence before the committee, that, upon opening the poll, the selectmen cautioned the voters to be careful that their envelopes were sealed, as they had decided that their duty required them to reject all that should be found unsealed, and none such would be counted. This ad*655monition was repeated once or more during the balloting, and particularly on one occasion of the depositing of an envelope, when the chairman announced to the meeting, that one of the electors had lost his vote, by depositing it in an envelope that was unsealed. .
The votes were received by the chairman of the selectmen at the desk, two other selectmen standing by him to keep the check lists, while the other two, as soon as a suitable time came for emptying the box, were engaged in opening the envelopes and arranging the votes. This was done on a seat formed by a recess for a window, which served the purpose of a table, in the rear of the desk. Tims, the selectmen were so arranged that their backs were toward each other, with a seat interposed between, so that the person who received the votes, and those who opened the envelopes, would neither of them be under the observation of the other. As often as more envelopes were wanted for counting, the box was emptied. As the envelopes were examined and counted, whenever any were found unsealed, they were thrown aside without further examination, and without any further care in relation to them, the selectmen testifying that they considered them of no consequence whatever. When the poll was closed, the votes were taken to the desk and there counted by the. whole board of selectmen. The counting and declaration occupied from three-fourths of an hour to an hour, during which time the unsealed envelopes were left in the window, out from under the care or observation of the selectmen; and more or less of the people of the town had pressed into the inclosure about the desk, and occupied the space behind the selectmen, and between them and the window where the unsealed envelopes were laid. After the counting was finished and the declaration, made, the chairman took from the window seven unsealed envelopes, and found the votes for representative therein to be five for Charles Seaver and two for William Clafiin. Neither of the other selectmen examined these ballots.
The chairman of the selectmen testified, that he did not know, from his own personal knowledge, that more than one *656unsealed envelope was received. He also testified, that he did not know where those that he examined came from, or how they came in the window from which he took them. The selectmen who opened the envelopes were unable to tell how many of them they found unsealed. But one of the two was called to testify in the case, and he would not swear positively that there were more than three, though he thought there were four, and there might be more. He did not know but there might be six or even ten. In fact, he seemed to have no distinct recollection about the number, and gave as a reason for it, that he took no particular notice of them, because he considered them of no consequence. He also swore that he did not know, that the envelopes examined by the chairman were the same that they threw out.
From this statement of facts, we come to these conclusions :
1. That the number of unsealed envelopes found among those that were duly received is left in doubt, not more than three being certainly proved.
2. Those which were found are not satisfactorily proved to have been the same, or any portion thereof, that were after-wards examined by the chairman of the selectmen, about an hour’s time having intervened, during which they were out of the possession or care of the selectmen, and so left, that sundry persons had the opportunity to add to or abstract from their number, or to change them entirely. "
3. If the three unsealed envelopes, which are proved to have been duly received and thrown out by the selectmen, had also been proved to be among the seven examined by the chairman, it would not diminish the doubt; because, one of those is proved to have been open and known to be open, when received, and therefore was clearly illegal, and among those examined by him were two votes for the sitting member.
We therefore think that the petitioners have failed to sustain their positions, and report that they have leave to withdraw their petition.”
Three members of the committee, (Messrs. Schouler, Jones, and Bond,) dissenting from the conclusions of the report, pre*657sented a statement of the evidence in the case, and concluding thereupon as follows: — •
“ The case is as follows : — At the November election, Mr. Claflin was declared elected a member of this house, from Hopkinton. He had just the required number of votes to. elect him. Seven unsealed envelopes found in the ballot-box were not counted. These seven envelopes were afterwards taken by the chairman of the selectmen, opened, and counted. They contained two votes for Mr. Claflin, and five against him. Of course, if they had been added to the count by the selectmen, Mr. Claflin would not have been declared elected. It is clear, therefore, that he did not receive a majority of the votes of Hopkinton.
The report of the majority attempts to throw doubts upon the testimony. But if the fact that there were seven unsealed envelopes, and that two of them only were for Mr. Claflin, is not proved, then there has been no fact proved before the committee the present session. The chairman of the selectmen swears positively to the fact, and he is the only one who could thus swear. This is the only point in the case. It is the whole case.
The undersigned therefore report, that the petitioners have made out their ease, and that Mr. Claflin is not entitled to a seat in this house, as a member from the town of Hopkinton.”
The report, giving the petitioners leave to withdraw, was agreed to,1
74 J. H. 511. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502622/ | The election of Timothy Graves, returned a member from the town of Sunderland, was controverted by Horace Lyman *658and others, for reasons which are stated in the report of the committee on elections, which contained a statement of the evidence, in full, and concluded as follows: — ■
“ From the evidence in the case, it appears that a declaration was made of the votes for representative, by which it appeared that the whole number was 186; necessary to a choice, 94; Timothy Graves had 94, and lie was declared duly elected.
That immediately afterwards two more votes for representative were found in envelopes, which envelopes had not been taken out of the presence of the selectmen. These two votes were for Wm. W. Russell. Had these votes been discovered and counted before the first declaration, the vote would have stood as follows : whole number, 188 ; necessary for a choice, 95 ; and no one had that number.
The selectmen considered that these two votes were legally cast, and ought to be counted, and did accordingly count them, and made a new declaration that there was no choice of representative, and thereupon the meeting voted not to send a representative, and adjourned. Four days afterwards, under a demand from Mr. Graves for a certificate, the selectmen, consulted counsel, and were advised that it was their safest way to give the certificate, as they might be liable in case of a refusal, and that if there was any error it could be corrected here. In accordance with this advice, they granted the certificate under which Mr. Graves holds his scat.
The committee are of opinion, that the selectmen rightfully counted the two votes, found in the envelopes after the first declaration, and that there was no choice of representative in Sunderland on the second Monday of November last.
The committee further declare it as their firm conviction, that the certificate subsequently given to Mr. Graves, under an apprehension of liability in case of refusal, was unwarranted either by the laws of the commonwealth, or by the facts proved.
The committee, therefore, feel compelled to report:—
That Timothy Graves is not entitled to a seat as a member of this house.”
*659Three members of the committee, (Mesavs. Sehouler, Jones, and Bond,) dissenting from the above report, presented their views as follows:—
“ The facts of the case, as shown by the evidence, are these : At the election held in the town of Sunderland, on the 10th of November last, Timothy Graves was declared elected a representative in the general court, and it also appeared that subsequently a voter of the town, having' received from one of the selectmen a number of the envelopes which had been used in the election, found, as he swears, a vote in one of them for William W. Russell, which vote he showed to one of the selectmen. After this fact was known, another of the selectmen found, in overhauling the broken envelopes, another vote for the same William W. Russell. They then held a consultation and agreed to make another declaration, which they did, namely: That Mr. Graves was not elected. After doing so, the meeting, there being only seven, persons present, voted first not to send, and then to dissolve the meeting. It further appears that the selectmen took counsel of Judge Forbes and Charles P. Huntington, Esq., of Northampton, gentlemen of distinguished legal ability, as to the course for them to pursue in the premises. Mr. Graves having asked them for his certificate, they were advised to give Mr. Graves his certificate. They gave it to him, and Mr. Graves accordingly took his seat in this house.
These are the facts of the case. The majority of the committee have come to the conclusion, that Mr. Graves is not entitled to his seat, and that the two votes subsequently found in the broken envelopes, after the declaration had been made and Mr. Graves declared elected, ought to have been counted, and Mr. Graves refused his certificate. They say that the selectmen were bound to count those two votes, and declare, that no election had been made. We take issue with them upon this point.
The undersigned ask the serious consideration of the house to this ease, and to the decision of the majority. It is of the. very first importance. There is a principle involved in it of *660the greatest magnitude; a principle which involves in a vital and permanent degree the security and the purity of the elective franchise; and we cannot bring ourselves to believe, that if the house will give the subject a calm and unbiassed consideration, they will sustain the position assumed by the majority.
We shall not weary the attention of the members, by detailing to them the collateral questions involved in the evidence. They are unimportant in themselves, but when considered in relation to their bearing upon the main issue, serve to elucidate the great and important point involved in the case, which we hold to be this : That whenever a doubt exists as to the truthfulness or legality of a vote, that doubt shall be given on the side of truth and legality; that if there be any practice, we care not what it is, which if carried into our elections can be made the means of gross fraud and deception, that practice is to be avoided.
It has been the boast of our state, that the legislature of Massachusetts, from time immemorial, has guarded by wise statutes the purity of the ballot-box, so that a true expression of the wishes of the voters of the state might always be attained. For this reason it is, that we have laws which prescribe certain fixed duties to the selectmen and presiding officers at town-meetings. The selectmen, before entering upon the discharge of their responsible duties, are required to make oath, that they will fairly and impartially perform those high and responsible duties. The recording officer is required to be sworn to the proper discharge of his duty. The votes are required to be counted, sorted, declared, and sealed up in open town-meeting. The list of votes is required to be made out and the list and check are required to be used in these elections, and no man is permitted to put his vote into the ballot-box, until his name is first found upon the cheek list and checked by the presiding officer. Unless each and all of these requisitions are complied with, the election is not according to law. Severe penalties are prescribed for fraudulent voting.
By wise and salutary checks, the laws of Massachusetts keep *661pure the fountain-head of political power, and they have been to our commonwealth a savor of right unto liberty. But let us once adopt the principle upheld in the decision come to by the majority of the committee in this case, and we open wide the sluice-gates for all sorts of abominations, cheating, and corruption in our elections, which will last as long as we have upon our statute books the law of the last session, known as the secret ballot law, in the practical exercise of which this case, and many others, have been brought before this legislature for examination.
It is proposed by the majority to unseat Mr. Graves, because, after the envelopes were opened, counted, the declaration made, and he declared elected, and after many of the broken envelopes had been scattered upon the floor, and some of them taken away, two votes were found for another person, one by a selectman and another by a citizen of the town, not an officer, nor sworn to discharge any duty. We ask, in all candor, who is there that knows anything of these two votes? who can, of his own knowledge, tell whether they were true or fraudulent votes. We of course impeach the character of no man when we put this question, but we put the question, and we would press it home to the mind of each mepaber of this house. We repeat it, and we, would like to have an affirmative answer given, if one can be given. Who can tell whether these two votes were put into the envelopes fairly or fraudulently ? All we know is, that they were not'found by the selectmen when they first opened the envelopes ; they were found afterwards, and after a portion of them had passed from their hands. But how they came there, but one power, short of omnipotence, can answer, and that is the voter himself. The selectmen could not tell. The house cannot tell. It is a secret past our finding out. The majority of the committee, by their decision in this case, say, in effect, that they believe the votes were properly there, and that they should have been counted. But the majority do not know the fact, and cannot, from the very nature of the question, know it. It is a sealed book to all the world. .
*662But the principle invoiced is the important point. It is of vastly more importance to the people of this commonwealth, than whether Mr. Grates shall be suffered to retain his seat or shall be seni home. - So long as the secret ballot law remains a living, actúe agent in our elections, the principle involved in this case will never cease tobe felt. Cheating would become, as Shakspeare says, * as easy as lying’ in every election, if we establish as a rule the principle involved in the report of the majority. Unprincipled men could and would use, and they have used, this secret envelope system for double voting. Who can tell that it was not so used in Sunderland ? We do not say that it was. We cannot tell. Who can tell that from each of the envelopes in which these votes were found, a ballot containing a full vote for governor, lieutenant-governor, senators and representatives to the legislature, on one piece of paper, had not previously been taken, and when taken the broken envelopes had been thrown aside by the selectmen, they of course supposing that there was nothing else in them; but subsequently, when it was impossible to identify the envelopes, they had been re-examined, and other votes for representatives were found therein. Who can answer this question ? Who is so blind as not to see, that if we establish the principle, that the envelopes, after they have once passed from the hands of the selectmen, — who, it is presumed, have carefully examined the inside, — shall be examined again, and if a slip of paper is found therein, bearing the name of a candidate for the legislature, that it is to be counted as a good vote, although they cannot tell whether or not they had taken already one vote for representative from that same identical envelope ; who, we say, is there so blind as not to see, that it is adopting a rule of action, which will open wide the door to fraud and corruption; and if we adopt the report of the majority, and unseat Mr. Graves, we adopt that rule, — we make it a part of our laws concerning elections.
But it may be said, and doubtless will be, that this will nol be practised. In answer, we say that it has been practised. There is a member holding a seat in this house, who was de*663feated on the first Monday of November by 1 his very means. r>ÍHvn more votes were cast ni hie town for representatives than them were envelopes in the box, aiul of course these (if--tci 11 mu-i have b. on pm in fr,niduk-ntiy. li is oiliiing an iiuiiiuniiV to fraud, Ai.y won can vole double in this way, unu íuiL-’, er er-eupt deieetion.
b’or tÍK'si , and other reasons winch we might name, the under.-wiled cannot emu m with i he re pian of I ho majority. in presetuinn our views io die bouse, we have said nothing about the einraoter of TLi • te-tunom in this ¡.articular case. It will be iuimd comedy reporwd in the report oí ihe majority, \Vo have preferred to ennvdcr the question a-> one involving a vital prineijde, so far as the pm by of our ('lections is concerned. It is a ease wliieli has arisen out oi the secret ballot Jaw of the last session. The committee have had no precedents in the books to guide them in their decision. This house is to iix a precedent by their vote upon this question, and from that face the case receives a great share of its importance.'
The undersigned ask that it may be decided in such a manner a > shas1 mud to pe-pctuu.e da pmirv of dm hallol in ill'- rommoi w e.dih , ant", m conclusion, they report 1 hat the pe* lUo'if r , h," e f-d >d Ur niidm out a ca-°,.and iliat i’iiuothy Graves is entitled to his seat, and that the petitioners have leave to withdraw their petition.”
The report v"i- aun ttb. d. agreeably ro the suggestion of the minority, by srrikme mu tin conclusion ibeieof, and inseríing, instead of the same,1 That the petitioners have leave to withdraw and, as amended, was agreed tod
74 J. H. 511, 512. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502623/ | The election of Samuel Henry, returned a member from Chester, was controverted on the following grounds, set forth in the petition against the same:—
1. That a majority of the selectmen did not attend to the opening of the envelopes and counting of the votes, at the time of the election.
2. That two persons, neither of whom was a selectman, or had been sworn, assisted in performing the duty of opening the envelopes, taking the ballots therefrom, and counting the same.
3. That all the votes given in for representative were not taken from the enevelopes; [but were allowed to remain therein, and were not counted; and all these votes were for other persons than the member declared to be elected.]
4. That undue liberties were taken with the envelopes and votes generally.
The committee on elections reported thereon as follows :—
“ The facts or allegations contained in the second and third heads are conceded, or rather not controverted, or disputed. Under the fourth head of the petition, the petitioners express an opinion in relation to the election, which they doubtless honestly entertain, but which after due consideration the committee are not satisfied to be well-grounded in fact. It has been the practice in some towns in the commonwealth, as the committee have been informed, for the selectmen to call in the assistance of other persons in assorting and counting votes at elections; but the committee are of the opinion, that such a practice or custom should under no circumstances exist, it being the duty of the selectmen to receive, assort, and count the votes *665without any assistance except that of the town clerk. The almost universal right of suffrage is the peculiar feature of our form of government, and the privilege of every freeman; therefore the ballot-box cannot be too scrupulously guarded, even by those officers to whose supervision it is intrusted, and who are sworn to the faithful performance of their duties. After due investigation of all the facts and allegations submitted to the consideration of the committee, they are of the opinion, that sufficient cause has not been shown by the petitioners to justify vacating the seat of Mr. Henry, the sitting member; it being admitted by the petitioners that he received a majority of all the votes cast for representatives, and they therefore report that the petitioners have leave to withdraw their petition.”
The committee having made the petition a part of their report, the third specification was amended by striking out the words in brackets, and the report was then agreed to.1
74 J. H. 609. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502624/ | The committee on elections, to whom this case was referred, reported thereon as follows-
“ A town-meeting was held in Otis on the 10th day of November last, at which the rotes for a representative were as follows t — whole number of votes, 215; necessary for a choice, 108; Lorenzo Webb had 103; Rufus Pomeroy, 99; scattering) 13.
After the result of the balloting was declared, it was voted, *666by a bare majority, not to send a representative, and the meeting was then dissolved.
A second town-meeting was held in Otis on the 24th day of November, in pursuance of a warrant issued by the selectmen. There is no evidence that a petition was presented to the selectmen to call the meeting, and they stated no reason at the opening of the meeting for having called it. As soon as the town clerk had read the warrant and return, a motion was made and seconded to dissolve the meeting. The chairman of the selectmen then stated, that the meeting was not yet opened, because the poll had not been declared by him to be open. Subsequently the chairman said, ‘ The poll is now open, and we will receive votes for a, representative.’ A motion was again immediately made, and seconded, to dissolve the meeting. The selectmen, after a consultation of an hour or more, decided not to entertain the motion and refused to put it. Another motion was then made and seconded, to adjourn the meeting till the next clay. The chairman of the selectmen declined to put that motion, assigning as a reason that it amounted to the same as a motion to dissolve the meeting, as that was the last day on which a meeting for the choice of representative could be held. The selectmen then proceeded to receive votes for a representative, and the result of the balloting was as follows : — whole number of votes, 219 ; Lorenzo Webb had 111, John V. Cottrell had 102, scattering, 6; and Lorenzo Webb was declared to be elected.
It has been frequently decided by this house, that an election of a representative is illegal and void, if, at the meeting at which such representative was elected, the selectmen refuse to put a motion not to send a representative, or did not allow sufficient time, after the meeting was opened, for such a motion to be made and put. The committee see no distinction in principle between these cases and the one now under consideration. The only business, to be transacted at the meeting at which Mr. Webb was elected, was to choose a representative, and a motion to dissolve the meeting would have had the same effect, in every respect, as a motion not to *667send a representative. The committee are therefore of the opinion, that Mi-. "Webb was not legally elected, and they report that his seat ought to be vacated.”
The report was agreed to.1
74 J. H. 705. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502626/ | Journal Entries
1. Indictment delivered........Journal, infra, *p. 23
2. Arraignment; plea; jurors; verdict....... “ 23
3. Sentence .............. “ 25
Papers in File
[None] | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502975/ | OPINION
Opinion delivered by
CADMAN, Associate Justice.
This opinion clarifies our decision filed on March 9, 1996. It also denies the request to reconsider that decision.
I
The parties before the Court are related to each other under Navajo custom. Lucy B. Ben (Appellant), through the Veterans Administration, contracted with Tom Burbank (Appellee) to construct a house. In 1990 the parties entered into a separate oral agreement for additional construction work on the house. The Appellee completed the work and sent invoices to Appellant but she refused to pay.
On August 4, 1994, approximately four and one-half years after the parties entered into the oral agreement, Appellee filed a small claims complaint with the Chinle District Court against Appellant, seeking to collect a debt allegedly owed to him. On March 23, 1995, a small claims judgment was entered in favor of Appellee for $403.50. On June 22, 1995, Appellant appealed the small claims judgment to this Court.
On January 5, 1996, Appellant filed a brief in support of her appeal, arguing that the Chinle District Court had applied the wrong statute of limitations, and that the Appellee should have been barred from bringing his claim. On March 9, 1996, this Court dismissed Appellant’s appeal in the interest of justice stating that “[I]t would be a miscarriage of justice to tamper with the decision of the district court’s small claims judgment.”
The issue before the Court is whether it was fundamentally unfair to dismiss the Appellant’s appeal without giving her an opportunity to raise arguments against the dismissal.
*223II
Appellant claims that this Court did not have the authority to dismiss her appeal without a motion from either party. Appellant further argues that her rights to due process of law were violated when she was not given an opportunity to argue against the proposed dismissal. We disagree.
Parties in a small claims proceeding waive all rights to appeal except on the sole ground that “substantial justice has not been done between the parties according to the rules and principles of substantive law.” Rule 20 of the Navajo Nation Rules for Small Claims Proceedings (November 22, 1993). This Court, upon reviewing the appellate record, found that the Chinle District Court provided both parties with substantial justice, under Navajo common law, and accordingly dismissed the appeal.
Appellant’s rights were not violated when we dismissed her appeal as this Court has discretionary authority to accept or deny an appeal. 7 N.N.C. § 801(b). “The rights protected in the Navajo Due Process Clause are fundamental, but they are not absolute, limitless, or unrestricted.” In re Estate of Plummer, 6 Nav. R. 271, 275 (1990). As we stated, the rights created under the Due Process Clause are not absolute, which gives the Court discretion in applying it.
We will not discuss the other issues raised in the petition for reconsideration because we see that our decision was made in the interests of justice. “Our law contains a common rule based upon the principle that courts are to be just and do justice.” Zion's First National Bank v. Joe, 4 Nav. R. 92, 93 (1983). We dismissed the appeal based on that underlying principle of doing justice and it was accomplished by both our decision and the district court’s decision. However, we understand that a reason for our decision must be given and we now discuss why we believe that substantial justice was obtained by the small claims judgment.
III
When we dismissed this appeal, it was because we saw the issue as being whether, under Navajo comon law, substantial justice was obtained in the Small Claims Proceeding, and not whether the district court may have applied the wrong statute of limitations. We applied this issue because the parties transacted their business using customary ways, the parties are traditional Navajos, and Appellee argued for use of the Navajo principle of k’e in deciding this appeal.
Navajo common law determines whether substantial justice was obtained in the small claims proceeding. In Navajo Nation v. Platero, this court stated:
Since time immemorial the Navajo people have applied their customs and traditions in dispute resolution. Even with the Navajo Court of Indian Offenses, the Navajo judges of that court, under often adverse circumstances, continued to apply Navajo customs and traditions in cases brought before them. Navajo courts of today are no exception, they apply customs and tra*224ditions as the laws of preference.
6 Nav. R. 422, 424 (1991). The Navajo courts apply Navajo customs and traditions, or Navajo common law, before they apply any other form of law. In this case, Navajo common law supports our decision to dismiss the appeal.
Navajo common law is the first law of our courts and we will abide by it whenever possible. Therefore, we agree with Appellee that the Navajo way of k’e is the prevailing law to be applied. K’e recognizes “your relations to everything in the universe,” in the sense that Navajos have respect for others and for a decision made by the group. It is a deep feeling for responsibilities to others and the duty to live in harmony with them. It has to do with the importance of relationships to foster consensus and healing. It is a deeply-felt emotion which is learned from childhood. To maintain good relations and respect one another, Navajos must abide by this principle of k’e.
“We must also remember that the Navajo common law is also our constitution, and claims under it are subject to considerations of the community good and Navajo perceptions of moral right.” In re Estate of Plummer, 6 Nav. R. at 276. This appeal was initially dismissed based on furthering this concept of community good and moral right. Navajo common law requires one to follow through on a valid agreement made with another person. Appellant was therefore obligated to pay Appellee for the work he did on her house.
Appellant admits there was an oral agreement and Navajo policy dictates that she had a duty to fulfill her promise to Appellee. “Certainly the Navajo Nation’s policy is not to encourage people to breach oral contracts or written contracts. It is against Navajo policy for people to literally breach their contracts.” Anderson Petroleum Serv. Inc. v. Chuska Energy & Petroleum Co., 4 Nav. R. 187, 191 (W.R. Dist. Ct. 1983). This sets forth the Navajo traditional concept that when people make promises between one another, oral or written, they should honor those promises.
The fact that the parties were related supports the position that Navajo common law should take precedence in this case. The parties may not be close relatives under Anglo standards, but they are closely related under Navajo principles governing clan relationships. “The Navajos have very strong family ties and clan ties.” In the Matter of the Interest of J.J.S., 4 Nav. R. 192, 194 (W.R. Dist. Ct. 1983). These parties are related by clan and Appellee trusted Appellant to pay for the work because of this relationship. Appellee also gave Appellant numerous opportunities to pay the debt owed to him, by sending her collection letters, which she did nothing about. Thus, Appellee saw the courts as his only means of relief.
“The Navajo law builds on relationships. It works because of them. [The] people’s conduct is guided by family and clan relationships. Therefore, a clan is a legal ‘institution,’....” Lecture by the Honorable Robert Yazzie, Traditional Navajo Dispute Resolution In The Navajo Peacemaker Court (August 6, 1994). Appellant is legally obligated to Appellee, not only because of their oral agreement, but also because of their clan relationship. It would be unjust and immoral *225to go against such a relationship and, by breaching their agreement, Appellant has gone against it.
“The importance of his relatives to the Navaho (sic) can scarcely be exaggerated. The worst that one may say of another person is, ‘He acts as if he didn’t have any relatives.’ Conversely, the ideal of behavior often enunciated by headmen is, ‘Act as if nobody were related to you.’” Lente v. Notah, 3 Nav. R. 72, 80 (1982) (citing Clyde Kluckhohn and Dorothea Leighton, The Navajo, 100 (Rev. ed. 1974)). This brings forth the norm that one must respect his or her relatives in order to maintain social order. Appellant goes against this norm by not following through on the agreement she made with her relative, Appellee.
To maintain social order, the oral agreement made must be honored and the injured party must be compensated. The parties had a binding oral agreement which obligated Appellee to provide construction work on Appellant’s house, and she, to pay for his services. She breached that oral agreement by not paying for the work. The Navajo way is to compensate the injured party, Appellee, and restore and maintain the relationship between the parties.
Even though the agreement between the parties was not reduced to writing, it does not release Appellant from her obligation to pay for the work. Most transactions within the traditional Navajo culture are based on oral agreements. To maintain this tradition, certain barter transactions are exempted from the Code. 5A Navajo Nation Code § 2-201 (1995). Appellee did not see a need to put anything in writing because of the relationship that they had as relatives. Often, this is the way oral contracts are made and enforced between traditional Navajos. A handshake usually consummates the agreement.
Appellant’s brief repeatedly discussed trying to calculate the specific date the contract went into effect in order to support her argument that the district court applied the wrong statute of limitations. However, there was very little discussion as to why she was refusing to pay for the work done. It appeared that Appellant was hiding behind her statute of limitations claim in order to avoid paying for the work. This is not the Navajo way.
“[T]he end goal of Navajo justice is helping them live together well. Our Justice maxim is this: hazho’ sokee’ - stay together nicely.” Lecture by the Honorable Robert Yazzie, Traditional Navajo Dispute Resolution In The Navajo Peacemaker Court (August 6, 1994). Considering the parties were related and the goal of Navajo justice is helping people live together, the only logical outcome would be for Appellant to compensate Appellee for the work he did to maintain a relationship between them.
“The soul of this Court is to apply Navajo Tribal law, especially where our custom and tradition are appropriate.” Sells v. Sells, 5 Nav. R. 104, 108 (1986). By coming to this decision, uniformity and consistency will develop in Navajo law. Uniformity will develop when Navajo traditions are applied to agreements made between persons, whether it be oral or written. They will be obligated to each other to fulfill their portion of the agreement. To do otherwise is against the *226basic principle of k’e and the one breaching the agreement will have to compensate the injured party. This will also encourage consistency in the fact that Navajo common law will be the first law applied in our courts.
The policy behind the small claims proceedings is to provide a person access to the courts without all the legal costs and hassles of seeking relief in a regular court of law. The rules for small claims proceedings provide easy access for a person seeking relief in an amount less than $2,000.00. The rules also provide a step by step process of the proceeding, that a person need not be represented by counsel to keep costs at a minimum, and the proceedings should promote flexibility and steer clear of the strict rules of practice, to encourage parties to fully participate. The small claims proceedings are intended to make it easy for a person to obtain relief and receive substantial justice, which was accomplished in this case by the Chinle District Court.
By this decision, we do not determine what the statute of limitations is for contract claims. This decision only clarifies that, according to Navajo common law, substantial justice was done by the Chinle District Court in this small claims proceeding. The petition for reconsideration is denied and our order dismissing Appellant’s appeal is affirmed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502653/ | Journal Entries: (i) Dec. 7, 1829: libel filed, time fixed for trial, notice ordered published; *206(2) Dec. 28,1829: publication proved, proclamation made, motion for judgment of forfeiture and order for sale; (3) Dec. 29, 1829: property condemned, sale and notice of sale ordered.
Papers in File (1829): (1) Libel; (2) printer’s bill, receipt; (3) copy of order of sale, return; (4) additional return of sale.
File No. 38 of 1829. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502654/ | Journal Entries: (i) Dec. 7, 1830: libel filed, time fixed for trial, notice ordered published; (2) Dec. 30,1830: publication proved, proclamation made, motion for forfeiture and sale; (3) Dec. 31, 1830: property forfeited, sale and notice of sale ordered, attendance of witness proved.
Papers in File (1830-31): (1) Libel; (2) published notice, proof of publication, proof of posting; (3) subpoena; (4) copy of order of sale, return, receipt.
File No. 50. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502655/ | Journal Entries: (i) Dec. 6, 1831: libel filed, time fixed for trial, notice ordered published; (2) Dec. 23,1831: publication proved, proclamation made, motion for forfeiture and sale; (3) Dec. 27,1831: property forfeited, sale and notice of sale ordered.
Papers in File (1831): (1) Libel; (2) published notice, proof of publication and posting; (3) printer’s bill; (4) copy of order of sale, return, receipts.
File No. 60. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502656/ | Journal Entries: (i) Aug. I, 1832: libel filed, time fixed for trial, notice ordered published; (2) Aug. 28,1832: publication proved, proclamation made, motion for forfeiture and sale, evidence heard and reduced to writing; (3) Dec. 6, 1832: property forfeited, sale and notice of sale ordered.
Papers in File (1832): (1) Libel; (2) subpoena; (3) published notice, proof of publication and posting; (4) testimony of Rensalaer Brady and Lot T. Janny; (5) copy of order of sale, return, receipt.
File No. 62. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502658/ | Journal Entries: (i) Dec. 12, 1832: marshal given leave to amend return to summons, return amended; (2) Dec. 19, 1832: rule to plead; (3) May 7, 1833: motion for default granted, damages to be assessed by jury; (4) Jan. 22, 1834: discontinued.
Papers in File (1832): (1) Precipe for summons; (2) summons and return; (3) declaration.
File No. 70. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502660/ | Journal Entries: (i) June 2, 1834: libel filed, time fixed for hearing, notice ordered published; (2) June 20,1834: publication proved, proclamation made, property forfeited, sale and notice of sale ordered.
Papers in File (1834): (1) Libel; (2) published notice, proof of publication and posting; (3) copy of order of sale, return.
File No. 109. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502661/ | Journal Entries: (i) Nov. 16, 1835: libel filed, time fixed for hearing, notice ordered published; (2) Dec. 14,1835: publication proved, proclamation made, property forfeited, sale and notice of sale ordered.
Papers in File (1835-36): (1) Libel; (2) published notice, proof of publication and posting; (3) copy of order of sale, return.
File No. 150. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502662/ | Journal Entries: [None]
Papers in File (1836): (1) Indictment.
File No. 169. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502663/ | Journal Entries: [None]
Papers in File (1836): (1) Indictment.
File No. 165. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502671/ | 11/22/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0358
Supreme Court Case No. DA-22-0358
DAVID LOCKHART AND DOREEN
LOCKHART,
ORDER GRANTING MONTANA
Plaintiffs-Appellants- ASSOCIATION OF REALTORS®
Cross-Appellees, MOTION FOR LEAVE TO FILE
v. AMICUS CURIAE BRIEF
WESTVIEW MOBILE HOME PARK,
Defendant-Appellee-
Cross-Appellant.
The Montana Association of REALTORS®, Inc. has moved for leave to
submit an amicus curiae brief in this matter, pursuant to Mont. R. App. P. 12(7).
Good cause appearing,
IT IS ORDERED Montana Association of REALTORS® may file an amicus
curiae brief, to be due on the same date as Appellee Westview Mobile Home
Park’s Answer Brief.
DATED this _____ day of November, 2022.
_________________________
_________________________
_________________________
_________________________
_________________________
Justices
2 Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 22 2022 | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502672/ | 11/22/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0584
No. DA 21-0584
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MICHAEL JACOB DUNNE,
Defendant and Appellant.
ORDER
Upon consideration of Appellee’s motion for a 30-day extension of time,
and good cause appearing therefor,
IT IS HEREBY ORDERED that Appellee is granted an extension of time to
and including December 29, 2022, within which to prepare, file, and serve the
State’s response brief.
CH Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 22 2022 | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502673/ | 11/22/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0323
No. DA 20-0323
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JASON PEARSON,
Defendant and Appellant.
__________________________________________________________________
ORDER
Upon consideration of Counsel’s motion to dismiss the above-
entitled cause due to Appellant’s death, and good cause appearing,
IT IS HEREBY ORDERED that the above matter is hereby
DISMISSED with prejudice.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 22 2022 | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350220/ | Matter of Steuben County Commr. of Social Servs. v Davis (2022 NY Slip Op 07402)
Matter of Steuben County Commr. of Social Servs. v Davis
2022 NY Slip Op 07402
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, BANNISTER, MONTOUR, AND OGDEN, JJ.
1027 CAF 21-01600
[*1]IN THE MATTER OF STEUBEN COUNTY COMMISSIONER OF SOCIAL SERVICES, ON BEHALF OF CRYSTAL L. MEYERS, PETITIONER-RESPONDENT,
vTHOMAS C. DAVIS, RESPONDENT-APPELLANT. (APPEAL NO. 2.)
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT-APPELLANT.
HOLLY A. ADAMS, COUNTY ATTORNEY, CANANDAIGUA (BARRY D. MCFADDEN OF COUNSEL), FOR PETITIONER-RESPONDENT.
Appeal from an amended order of the Family Court, Ontario County (Brian D. Dennis, J.), entered August 3, 2021 in a proceeding pursuant to Family Court Act article 4. The amended order, inter alia, found that respondent had willfully failed to obey an order of the court.
Now, upon reading and filing the stipulation of discontinuance signed by the attorneys for the parties on October 13 and 17, 2022,
It is hereby ORDERED that said appeal is unanimously dismissed without costs upon stipulation.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502674/ | 11/22/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 11, 2022 Session
STATE OF TENNESSEE v. TONY DALE CRASS
Appeal from the Circuit Court for Williamson County
No. W-CR190604 Joseph A. Woodruff, Judge
___________________________________
No. M2021-00528-CCA-R3-CD
___________________________________
The Williamson County Grand Jury indicted Tony Dale Crass, Defendant, with driving
under the influence (DUI), DUI per se, and possession of a firearm while under the
influence. Defendant moved to suppress the evidence, arguing that the State did not have
probable cause or reasonable suspicion for the traffic stop and that video evidence of
Defendant’s driving was erased and deleted as a result of a malfunctioning recording
system in Tennessee Highway Patrol (THP) Trooper Joey Story’s patrol car. The trial court
concluded that the loss of video evidence constituted a violation of the State’s duty to
preserve potentially exculpatory evidence recognized in State v. Ferguson, 2 S.W.3d 912
(Tenn. 1999), and deprived Defendant of the right to a fair trial. The trial court granted the
motion to suppress and dismissed the indictment, and the State appealed. We conclude
that the video was not lost or destroyed by the State, (2) that a Ferguson violation is not
applicable to a suppression hearing based on reasonable suspicion or probable cause for a
traffic stop, (3) that the trial court misapplied the “degree of negligence” Ferguson factor
by equating perceived public policy decisions on the part of the State to negligence, and
(4) that Defendant’s right to a fair trial can be protected without dismissal of the indictment.
We reverse the judgment of the trial court, reinstate the indictment, and remand for further
proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
Case Remanded
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and JOHN W. CAMPBELL, SR., JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter; Richard D. Douglas, Senior
Assistant Attorney General; Kim R. Helper, District Attorney General; and Jamie Pulido,
Assistant District Attorney General, for the appellant, State of Tennessee.
Patrick T. McNally and Joseph W. Fuson, Nashville, Tennessee, for the appellee, Tony
Dale Crass.
OPINION
a. November 6, 2020 Suppression Hearing
On January 3, 2019, THP Trooper Joey Story was returning to his home in
Rutherford County after working security at the Governor’s residence. While he was
traveling behind a white pickup truck on Highway 96 in Williamson County, he observed
the truck cross over the right shoulder line of the road (“the fog line”). Trooper Story’s
patrol car was equipped with a Mobile Video System (“the MVS”) that continuously
records and deletes until the system is activated, at which time the system preserves what
is being recorded and what had been recorded during the thirty seconds prior to activation.
Trooper Story could manually activate the MVS to begin audio and video recording by
pushing a button on his belt or by pushing a button on the camera, or the system would
automatically begin recording when the vehicle’s emergency lights were activated.
Trooper Story testified that he pressed the button on his belt to wirelessly activate the MVS
within thirty seconds of the truck’s crossing the fog line. Trooper Story continued to follow
the truck. He said that the truck crossed the fog line at least three more times before the
driver turned right into a driveway and shut off the truck’s lights. Trooper Story testified:
I watched him turn into the driveway. And it may have been a delayed
reaction of why that I didn’t turn right in, but I was watching him and then
got almost pass (sic) the driveway before I initiated my lights.1 And then
when I did I come back (sic) and made the U-turn and come back (sic). I
watched him turn into the driveway. I watched him pull to the edge of the
driveway, shut his -- shut the lights off of the vehicle.
Trooper Story turned around and proceeded back to where Defendant was parked.
As he approached the driveway, Trooper Story activated his emergency lights and pulled
1
The video recording from Trooper Story’s vehicle was entered as Exhibit 1 at the November 6,
2020 hearing. The video begins at 22:14:15 and shows Trooper Story’s vehicle traveling on Highway 96.
At 22:14:23, Trooper Story begins to turn around, and at 22:14:36, he begins driving back toward
Defendant’s location. At 22:14:45, he activates his emergency lights and blue light first becomes visible
outside Trooper Story’s patrol car. At 22:14:47, Trooper Story turns into the driveway behind Defendant’s
truck. Thirty seconds of video beginning at 22:14:15 were preserved when Trooper Story activated his
emergency lights at 22:14:45. The thirty seconds of preserved video does not show Defendant’s driving or
Defendant’s pulling into the driveway.
-2-
in behind the truck. When asked by defense counsel why he did not follow Defendant
when Defendant turned into the driveway, Trooper Story said that he “couldn’t tell you
why [he] passed it.”
After pulling in behind Defendant, Trooper Story contacted dispatch and asked that
another trooper be sent to the scene to handle the investigation, explaining that he did not
want to handle a case in Williamson County. Trooper David Green came to the scene and
completed the DUI investigation. On the audio recording at the scene, Trooper Story can
be heard telling Trooper Green that Defendant “crossed the fog line and I mean he liked to
have hit that low shoulder.” After completing the investigation at the scene, Trooper Green
transported Defendant from the scene and prepared the affidavit of complaint, which stated
in pertinent part: “On January 3, 2019, at approximately 10:17 p[.]m[.], THP Trooper Story
observed a vehicle fail to maintain its lane of travel near the 4400 block of Hwy 96.”
Although Trooper Story thought that the MVS began recording when he pressed the
button on his belt, the camera did not activate and continued deleting the thirty seconds of
rolling video. Trooper Story explained that, “[o]nce [he] attempted to start it, which is a
simple push of the button, it should have started. It was a malfunction in the unit, hence
one reason why [they] changed camera systems.”
During cross-examination, Trooper Story explained that his main focus was on
Defendant’s driving habits and that he was not watching the head unit to see if it came on.
He stated that: “I thought that the unit c[a]me on. It’s never really give[n] me a problem
in the past.” The following dialogue concerns Trooper Story’s failure to mention that he
manually tried to activate the MVS when asked during the preliminary hearing if he had
dashcam video of Defendant’s driving:
Q. At the time you said that you didn’t manually start your video?
A. No, I didn’t manually -- with the evidence that was presented by
watching the video, I didn’t start the video.
Q. But you didn’t even make any mention -- you didn’t say anything
about well I tried to start it or thought it was going -- you know, I had the
belt, I could hit the button -- you didn’t mention any of that.
A. Well, you didn’t ask that. You asked did I manually start it. And
it was actually I did not start it.
The trial court also questioned Trooper Story about when he became aware of the
fact that the video did not activate when he pressed the button on his belt. Trooper Story
-3-
agreed that it was “quite some time” before he actually watched the video, and he stated
that he did not remember “whether it has been [his] interaction with the State when [the
prosecutor] brought up actually that [they] were going to have the initial hearing.” He
added that because he did not make the arrest, he “never looked back . . . on it” and “just
tagged it” so that Trooper Green could access it.
After Trooper Story testified that Defendant crossed the fog line at least four times,
he was asked if he remembered telling Defendant that he pulled him over “because he
crossed the line one time.” Trooper Story answered, “I don’t remember -- I just make
reference to crossing the line and about the shoulder. I don’t recall the – how many times
I said that he crossed the line[.]” When questioned about the affidavit of complaint
prepared by Trooper Green that stated that Defendant failed to maintain his lane of travel
near the 4400 block, Trooper Story said that he had not looked at or read the affidavit of
complaint and did not know why the affidavit of complaint stated that.
Near the end of the first hearing, Defendant moved to amend his motion to suppress
to raise “the evidence preservation issue.” Defendant argued that he did not know “until
Trooper Story’s testimony today” that Trooper Story had attempted to activate the video
recording system by pressing the button on his belt. In granting Defendant’s request to
amend his motion to suppress to raise a Ferguson violation, the trial court reasoned:
So[,] I think that there is a negligent failure to preserve the evidence, but it is
not Trooper Story’s negligence. It’s the failure of the Department of Safety
to provide reliable equipment that turns on when it is supposed to when the
trooper who as he said is paying attention to the driving habits of the vehicle
in front of him, paying attention to other things that are going on around him,
trying to operate his own vehicle safely. He does what he’s trained to do, he
hits the button on his belt to turn it on and it doesn’t turn on.
The trial court continued the hearing. Defendant filed an amended motion to
suppress adding as grounds that the State failed to preserve the video evidence.
b. April 9, 2021 Hearing
At the subsequent hearing, Trooper Story again said that he pushed the button on
his belt to activate the video “within [thirty] seconds of witnessing the [first] lane
infraction.” Trooper Story agreed that, if the recording system had functioned properly
when he pressed the button on his belt, it would have captured and saved video showing
-4-
Defendant’s driving. When asked if he knew why the video did not record, Trooper Story
explained, “Best likelihood is the old and dated equipment that we had.”
During cross-examination, Trooper Story agreed that he was familiar with the
Tennessee Department of Safety and Homeland Security (“TDS”) “General Order”
concerning MVS, a copy of which was then entered as Exhibit 2. Trooper Story agreed
that he was a commissioned member (“Member”) subject to provisions of the General
Order.
The stated purpose of the General Order was to “establish policy and procedures . .
. concerning the use and control of in-car cameras, also known as ‘MVS.’” The General
Order stated that “the use of the MVS is intended to substantiate probable cause, enhance
criminal prosecutions, limit civil liabilities, protect Members from unwarranted citizen
complaints, and document officer contacts.” The stated policy of the General Order was
“to require Members assigned audio/video recording equipment to utilize the equipment
for the purpose of collecting accurate accounts of events as they occur.” The failure of a
Member to utilize the MVS “in accordance with the provisions of the policy could result
in disciplinary action.”
The General Order further stated,
The Director of the Logistics Division . . . [is] responsible for
overseeing the installation, implementation, and maintenance of the MVS . .
. in such a manner as to automatically begin audio and video recording when
the vehicle’s emergency lights, siren, air horn, PA system are activated, or
when the vehicles speed exceeds 90 mph. The MVS shall also be capable of
being activated manually by the wireless transmitter.
Trooper Story was questioned about the “Operational Procedure and Member
Responsibilities” section of the General Order, which stated that prior to each shift,
Members were required to inspect the MVS and to perform a seven-step inspection of the
MVS “to ensure system integrity.” After the test, Members were to play back the audio
and video recorded during the test to verify proper operation. The seventh step stated:
(7) Prior to the beginning of each shift, Members are to turn the audio and
video on and give a test count from 1 to 5, state rank, name, unit number,
date and shift. Members should then play it back to verify proper operation.
This procedure can be performed by standing in front of the vehicle or, in the
event of inclement weather, from inside the patrol unit.
-5-
Defense counsel asked Trooper Story if “he ma[d]e sure the video transmitter was
actually working properly.” Trooper Story answered that the “red light was on when [he]
made contact” with Defendant and that he had good reception. When defense counsel
asked whether Trooper Story tested the MVS prior to his shift by pushing the button on his
belt, Trooper Story interrupted, stating, “That is not part of the check.” Trooper Story did
not explain how the audio and video test could be performed when standing outside the
patrol unit without using the wireless transmitter on his belt.
According to the General Order, a Member must report “[a]ny malfunction,
damage[,] or deviation in operating conditions of the recording equipment . . . to his/her
immediate supervisor or available District on-duty supervisor and Dispatcher
immediately.” Trooper Story testified that he did not report the malfunction to his
immediate supervisor or anyone else at the time of the stop because he “didn’t know there
was a malfunction . . . [or] review the video until there was a set for suppression.” He also
said that he did not report the malfunction when he later discovered that the video of
Defendant’s driving was not preserved.
When questioned about the location of his vehicle behind Defendant’s truck,
Trooper Story said that he “was not very far back” when Defendant turned into the
driveway. He said that he was watching Defendant and went past the driveway. He said,
“By this time I was almost right at the driveway . . . [and] I activated my lights [and] had
to actually turn around in the road and then come back.”2 Defense counsel asked, “So if
you hit your blue lights at about the driveway, we should be backing up [thirty] seconds
back from that, which [would] have you following him on the roadway three or four car
lengths, correct?” Trooper Story answered, “Possible.” He explained, “Wherever I
activated my lights it should have [gone] back [thirty] seconds.” Trooper Story said that it
did not appear that the video backed up thirty seconds before he activated his emergency
lights.
The trial court took the matter under advisement and, on April 21, 2021, issued its
Memorandum and Order finding that potentially exculpatory evidence was erased and
deleted as a result of an obsolete recording system installed in Trooper Story’s patrol car
by TDS. The court found that Trooper Story “was without fault” and that “nothing he did
2
Based on the dashcam video that was entered as Exhibit 1, Trooper Story activated his emergency
lights after passing the driveway, turning around, and proceeding back to Defendant’s location. The thirty
seconds of video recorded prior to activation was preserved, but that thirty seconds of video did not show
Defendant’s truck.
-6-
or did not do caused or contributed to the destruction of the video evidence.” Based on
Trooper Story’s testimony, the court found “that the unreliability of the obsolete video
recording equipment was well-known among his fellow troopers performing patrol duties”
and that troopers “like Tr[ooper] Story had no choice but to continue using this unreliable
equipment, not knowing from one day to the next whether it would function properly.”
The court determined that “[t]his state of affairs is a consequence of policy choices” made
by TDS. The court stated:
There is no evidence in the record of this case of an objective standard
against which TDS’s policy choice not to replace the obsolete video
recording equipment can be measured. Therefore, TDS’s inaction cannot be
found to be negligent. Nevertheless, TDS is charged with the knowledge of
its employees in the field, such as Tr[ooper] Story, that the obsolete video
recording system was no longer fit for purpose. By leaving the obsolete
equipment in the field, TDS was running the risk that relevant evidence could
be lost, just as it was in this case.
The court found that the State “had a duty to preserve the recorded evidence,” and
that the State breached its duty. The court found that evidence was “irretrievably lost,”
thus depriving Defendant of the “only objective evidence with which to challenge” Trooper
Story’s testimony, that there was “no substitute for the video recording of [Defendant’s]
driving which was erased and deleted,” and that Defendant has been “unfairly prejudiced
as a result.”
The trial court reasoned that “[t]he missing video relate[d] only to one issue:
whether [Defendant’s] driving provided a legitimate reason for Trooper Story to detain him
for investigation.” The court concluded that “the State ha[d] failed to carry its burden of
proof to show by a preponderance of the evidence that its detention of [Defendant] was
lawful.” The court also concluded that “relevant evidence was destroyed” and that
“exclusion of all evidence downstream of the destruction of this relevant, irreplaceable
evidence [was] the only viable remedy.” The court stated that “[Defendant] ha[d] been
denied a fundamentally fair trial.”
The trial court granted the motion to suppress the evidence and dismissed the
indictment. The State appealed.
Analysis
On appeal, the State claims that the trial court erred in finding that Ferguson applied
at the suppression hearing. Alternatively, the State argues that, if Ferguson does apply, (1)
-7-
the trial court erred in finding that the State had a duty to preserve the video evidence
because the evidence never existed, and (2) that the trial court incorrectly applied the three
Ferguson factors. Defendant claims that the trial court properly applied Ferguson,
properly found that the State committed a Ferguson violation, and did not abuse its
discretion by dismissing the indictment. We determined (1) that video of Defendant’s
driving was never captured and saved and therefore, the video was not lost or destroyed by
the State, (2) that a Ferguson violation is not applicable to a suppression hearing based on
reasonable suspicion or probable cause for a traffic stop, (3) that the trial court misapplied
the “degree of negligence” Ferguson factor by equating perceived public policy decisions
on the part of the State to negligence, and (4) that Defendant’s right to a fair trial can be
protected without dismissal of the indictment.
Ferguson and its Progeny
In Arizona v. Youngblood, the United States Supreme Court held “that unless a
criminal defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of law.” 488 U.S.
51, 58, (1988). In State v. Ferguson, the Tennessee Supreme Court “rejected the
Youngblood analysis in its pure form” and adopted “a balancing approach” to be used to
determine if a trial, conducted without the evidence that was lost or destroyed, would be
fundamentally fair. Ferguson, 2 S.W.3d at 917.
Ferguson requires the trial court to first determine whether the State had a duty to
preserve the evidence. Id. “[T]he State’s duty to preserve evidence is limited to
constitutionally material evidence described as ‘evidence that might be expected to play a
significant role in the suspect’s defense.’” Merriman, 410 S.W.3d at 785 (quoting
California v. Trombetta, 467 U.S. 479, 488, (1984)). To meet this constitutional
materiality standard, “the evidence must potentially possess exculpatory value and be of
such a nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means.” Merriman, 410 S.W.3d at 785 (footnote omitted).
“If the proof demonstrates the existence of a duty to preserve potentially exculpatory
evidence, the trial court should next determine if the State breached that duty. If the court
finds that the State breached its duty, “the analysis moves to a consideration of several
factors which should guide the decision regarding the consequences of the breach.”
Ferguson, 2 S.W.3d at 917. The three factors to be considered and weighed are:
1. The degree of negligence involved;
-8-
2. The significance of the destroyed evidence, considered in light of
the probative value and reliability of secondary or substitute evidence that
remains available; and
3. The sufficiency of the other evidence used at trial to support the
conviction.
Id.
After balancing these three factors, the trial court may then impose an appropriate
remedy. The court can “craft such orders as may be appropriate to protect the defendant’s
right to a fair trial.” Id. If the court determines that a trial conducted without the missing
evidence would be fundamentally unfair, the court can dismiss the indictment. If the court
determines that a defendant’s right to a fair trial can be protected, the court can fashion a
lesser remedy such as providing a jury instruction. Id.
A trial court’s decision concerning the fundamental fairness of a trial conducted
without missing evidence presents a constitutional issue that is reviewed de novo. State v.
Merriman, 410 S.W.3d 779, 790 (Tenn. 2013). If following a de novo review, an appellate
court concludes that “the trial would be fundamentally unfair in the absence of the lost
evidence,” the appellate court “will apply an abuse of discretion standard to review the
appropriateness of the remedy imposed by the trial court.” Id. at 792. “The decision
whether to dismiss an indictment lies within the discretion of the trial court.” State v.
Harris, 33 S.W.3d 767, 769 (Tenn. 2000) (citing State v. Benn, 713 S.W.2d 308, 311 (Tenn.
1986)). Consequently, “[a]ppellate courts ‘may not interfere with a ruling made within the
discretionary powers of the trial court absent clear abuse.’” Id. at 769-70 (quoting State v.
Street, 768 S.W.2d 703, 709 (Tenn. Crim. App. 1988)).
Ferguson evaluated the State’s failure to preserve evidence that could be favorable
to the defendant “in the context of the entire record” introduced at Mr. Ferguson’s trial. 2
S.W.3d at 914. The supreme court concluded that Mr. Ferguson received a fundamentally
fair trial and affirmed the conviction.
Following the issuance of Ferguson, several Tennessee cases have addressed the
application of Ferguson to pretrial motions to dismiss an indictment. In Merriman, the
“arresting officer’s dashcam video recorded his pursuit and stop of the defendant’s vehicle
using video recording equipment installed in his patrol vehicle, but the video recording was
subsequently lost.” Id. at 782. At the pretrial hearing, the officer “recounted the pursuit
and stop of Ms. Merriman’s vehicle and recalled activating the video equipment in his car
when he first encountered her vehicle.” According to the officer, “the video recording
-9-
showed Ms. Merriman’s vehicle traveling in his lane of traffic and his pursuit and stop of
her vehicle, Ms. Merriman’s attempts to complete the field sobriety tests, the officer’s
recitation of the implied consent law to Ms. Merriman, her refusal to submit to a blood test,
and her statement that she had taken “a Valium and hydrocodone.” The police department
procedure required the arresting officer to review the video and make field notes, a
supervisor then removes the hard drive containing the video and delivers it to the patrol
division captain who enters it into the evidence log. The arresting officer was never able
to locate the video. Following the pretrial hearing, the trial court determined that the State
had a duty to preserve the potentially exculpatory video evidence and that the State
breached its duty. The trial court then balanced the Ferguson factors and concluded that a
trial without the lost evidence would be fundamentally unfair. Id. at 787. The trial court
granted Defendant’s motion and dismissed the indictment.
When a Ferguson motion is brought pretrial, “the trial court is required to assess the
sufficiency of the evidence that the State intends to introduce at trial.” Id. at 788. The
Merriman court explained that “[a]lthough one part of that analysis includes a review of
the sufficiency of the evidence to convict the defendant, the Ferguson inquiry into the
adequacy of the [S]tate’s evidence is not a vehicle to adjudicate questions of fact involving
the general issue of guilt or innocence.” Id. at 787 (internal quotation omitted). In
determining that a defendant could assert a Ferguson violation in a pretrial motion to
dismiss the indictment, the court noted:
Due to the nature of Ferguson’s inquiry, we are unable to enumerate every
possible procedural setting in which a Ferguson analysis could be conducted
prior to trial. We caution, however, that a trial court conducting a Ferguson
analysis must assess the sufficiency of the State’s evidence while being
mindful that this assessment is not the equivalent of determining the
defendant’s guilt or innocence beyond a reasonable doubt. Again,
Ferguson’s inquiry into the sufficiency of the State’s evidence provides
context to the lost or destroyed evidence, allowing the trial court to weigh
the significance of the lost evidence in light of the other evidence and to
determine an appropriate remedy, if one is required.
The supreme court noted that “[a] video recording from a patrol vehicle is unique
by its very nature. No evidence comparable to this video recording could have been
obtained through other means.” Id. at 792-93. The court explained that “[b]ecause no
other secondary or substitute evidence was available, the case was reduced to a credibility
contest between the officer or officers and Ms. Merriman had she elected to testify at trial.”
Id. at 794. The court noted that the arresting officer “did not testify as to any indicia of
alcohol use, and no test results based on breath or blood analysis were available because
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Ms. Merriman’s refused to submit to testing under the implied consent law” and concluded
“that the video recording became more significant in light of the relative strength of the
State’s case.” Id. at 796. After balancing the Ferguson factors, the supreme court
concluded “that the loss of the video recording under the facts of this case deprived Ms.
Merriman of her right to a fair trial.” Id.
In State v. Kathy L. Bartlett, No. M2014-01530-CCA-R3-CD, 2015 WL 4381352,
at *1 (Tenn. Crim. App. July 17, 2015), the defendant was stopped after an officer observed
her speeding, and she was subsequently indicted for driving under the influence. The
officer “viewed the recording in his car immediately after the arrest and then submitted it
wirelessly to the police station’s server.” Id. When the officer attempted to retrieve the
audio-visual recording depicting the stop, “he was told that it was unavailable.” Id. The
defendant filed a motion to dismiss the indictment based on the loss of the recording, which
the trial court granted following a hearing. Id. at *1-2. This court, following a de novo
analysis and balancing of the Ferguson factors, reversed the trial court, specifically noting
the sufficiency of other evidence that would not have been shown on the video, including
Ms. Bartlett’s statements to the officer after being placed in the patrol car. Id. at *3-4. This
court stated:
Based on the above analysis and our balancing of the Ferguson
factors, we conclude that appellee can receive a fundamentally fair trial
without the missing recording. We surmise that to conclude otherwise would
construe Merriman as requiring dismissal any time the State, through simple
negligence, loses a recording of a stop in which the only witnesses are the
arresting officer and the defendant; we conclude that based on the multi-
factored analysis espoused in Merriman, our supreme court did not intend
such a result, and we refuse to adopt such a narrow interpretation of
Merriman.
Id. at *4.
A Ferguson violation has also been applied pretrial in a limited manner as the basis
to order the suppression of evidence. State v. Clifford Edward Clark, No. E2009-01795-
CCA-R3-CD, 2011 WL 13165164, at *1 (Tenn. Crim. App. Oct. 24, 2011). In that case,
the defendant was “stopped by officers as he was leaving the parking lot of a closed
business where the officers had just heard four shots fired.” Two rifle scope lens covers
were discovered during a Terry pat-down search and a rifle case was observed partially
covered behind the defendant’s seat. A Ruger rifle and a box of rifle rounds with four
bullets missing were found inside the rifle case. “Immediately thereafter, the officers
discovered that a nearby red light traffic camera had been shot four times.” Id. The
- 11 -
defendant was charged with vandalism and reckless endangerment for shooting a traffic
light camera.
When the State failed to provide the damaged camera and camera housing as part
of discovery, the defendant filed a motion to dismiss, or in the alternative, to suppress
evidence based on Ferguson and the warrantless search of vehicles based on Arizona v.
Gant, 129 S. Ct. 1710 (2009). Id. The trial court suppressed the evidence and dismissed
the indictment. This court determined that the officers had a reasonable suspicion that the
defendant was currently engaging or had been engaged in illegal activity. Following a de
novo review, this court concluded that the Ferguson factors weighed in favor of the
defendant’s receiving some remedy for the Ferguson violation associated with the
damaged camera and its housing. Id. at *15. This court reversed the trial court’s judgment
dismissing the indictment and suppressing the evidence found in the defendant’s vehicle
and determined that the appropriate Ferguson remedy was to suppress the photographic
evidence of the camera housing. Id.
Application of Ferguson to a Motion to Suppress Based on Reasonable Suspicion for
a Traffic Stop
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides for every defendant the right to a fair trial. Ferguson, 2 S.W.3d at
915. The due process principles of the Tennessee Constitution are broader than those
enunciated in the United States Constitution. Id. at 914 (Tenn. 1999); Tenn. Const. art. I,
§ 8. The issue in Ferguson was whether Mr. Ferguson’s trial, conducted without the
evidence that was lost or destroyed, was fundamentally fair under the due process
principles of the Tennessee Constitution. In Merriman, the supreme court held that a
“defendant could assert a Ferguson violation in a pretrial motion to dismiss.” Merriman,
at 779. “When a Ferguson motion is brought prior to trial, however, the trial court is
required to assess the sufficiency of the evidence that the State intends to introduce at trial.”
Id. at 788.
In this case, Defendant raised a Ferguson violation in a pretrial motion to suppress
evidence in which he claimed that Trooper Story did not have reasonable suspicion to
conduct a traffic stop. When Trooper Story activated his vehicle’s emergency lights,
Defendant was seized. At the time of the seizure, Trooper Story was required to have
specific and articulable facts that Defendant had committed a criminal offense in order for
the traffic stop to be constitutionally valid. State v. Garcia, 123 S.W.3d 335 (Tenn. 2003).
In determining if Trooper Story had reasonable suspicion to seize Defendant, the trial court
was limited to the “facts and circumstances within the knowledge” of Trooper Story at the
time he activated his blue lights. State v. Smith, 484 S.W.3d 393, 400 (Tenn. 2016). This
- 12 -
limitation runs afoul to the requirement in Merriman that the trial court in deciding a
Ferguson violation pretrial “assess the sufficiency of the evidence that the State intends to
introduce at trial.” Merriman, at 778. Therefore, we conclude that a Ferguson violation
cannot be asserted in a pretrial motion to suppress evidence based on the lack of reasonable
suspicion for a traffic stop.
Lost or Destroyed Video Evidence
The State argues on appeal that the video recording of Defendant’s driving never
existed. Defendant argues that video evidence did exist and that it was erased and deleted.
The trial court found that thirty seconds of rolling video was constantly saved and then
erased unless the MVS was activated. The reason that the MVS was not activated is
immaterial to the trial court’s finding. It does not matter if the MVS malfunctioned when
Trooper Story pressed the button on his belt or if Trooper Story did not push the button to
activate the MVS. The result is the same. Video of Defendant’s driving was not captured
and saved to the MVS and therefore there was no video for the State to lose or destroy.
Defendant argues that Merriman “involved nearly identical circumstances, in determining
that the defendant would be deprived of his right to a fair trial without the evidence as no
secondary nontestimonial evidence remain to challenge the validity of the stop.” In
Merriman, the dashcam video was saved to the hard drive, the arresting officer watched
video and was able to describe the contents of the video, and the hard drive was removed
by the arresting officer’s supervisor who turned the hard drive over to the patrol division
captain to be logged into evidence. When the arresting officer attempted to retrieve the
video, it could not be found. The trial court determined that the video was lost by the
police. Merriman, 410 S.W.3d at 782. We determine that the fact that the video in
Merriman was captured and saved to the hard drive, and was subsequently lost,
distinguishes Merriman from the facts of this case. The evidence preponderates against
the trial court’s finding that the video was lost or destroyed by the State.
Ferguson Factors
Even if we assumed that the video was captured and saved and subsequently lost or
destroyed by the State, that the State had a duty to preserve the video, and that the State
breached its duty; we determine that the Ferguson factors do not support dismissal of the
indictment. The first of the three Ferguson factors to consider when determining the
consequences of a breach of the duty to preserve evidence is the degree of negligence
involved on the part of the State in losing or destroying evidence that it had a duty to
preserve. Ferguson, 2 S.W.3d at 917.
- 13 -
In Ferguson, the supreme court determined that the evidence was destroyed as a
result of simple negligence. When the court balanced the simple negligence of the State,
together with “the significance of the missing evidence” and “the sufficiency of the
convicting evidence,” it determined that the defendant received a fundamentally fair trial.
Id. at 918. In Merriman, the supreme court conducted a de novo review and determined
that the dashcam video was lost as a result of simple negligence of the State. When the
court balanced the three Ferguson factors, it determined that “the loss of the video
recording under the facts of this case deprived Ms. Merriman of her right to a fair trial.”
410 S.W.3d at 796.
In the Memorandum and Order filed in this case, the trial court found that Trooper
Story was “without fault” and that the loss of the video recording was a “consequence of
policy choices” made by the TDS, stating that
[t]here is no evidence in the record of this case of an objective standard
against which TDS’s policy choice not to replace the obsolete video
recording equipment can be measured. Therefore, TDS’s inaction cannot be
found to be negligent. Nevertheless, TDS is charged with the knowledge of
its employees in the field, such as [Trooper] Story, that the obsolete video
recording system was no longer fit for purpose. By leaving the obsolete
equipment in the field, TDS was running the risk that relevant evidence could
be lost, just as it was in this case.
A footnote to the second sentence of the above quoted paragraph stated:
See Bowers by Bowers v. City of Chattanooga, 826 S.W.2d 427, 431 (Tenn.
1992) (“[T]he judiciary confines itself to adjudication of facts based on
discernible objective standards of law. In the context of tort actions . . . these
objective standards are notably lacking when the question is not negligence
but social wisdom, not due care but political practicability, not
[reasonableness] but economic expediency. Tort law simply furnishes an
inadequate crucible for testing the merits of social, political, or economic
decisions.”)
The trial court found “that the unreliability of the obsolete video recording
equipment was well-known among his fellow troopers performing patrol duties” and that
troopers “like Tr[ooper] Story had no choice but to continue using this unreliable
equipment, not knowing from one day to the next whether it would function properly.”
- 14 -
There is no proof in the record concerning TDS’s reasons for not updating Trooper
Story’s MVS before the date the Defendant was stopped. There is no proof in the record
concerning what Trooper Story’s fellow troopers knew about the reliability of the MVS.
When questioned about the MVS in his patrol car, Trooper Story described the equipment
as “old and dated” and said that the reason the MVS did not activate “was a malfunction in
the unit, hence one reason why we changed camera systems.” He then explained: “But like
I said I wasn’t watching the head unit, I thought the unit c[a]me on. In all fairness, I thought
the unit c[a]me on. It’s never really give[n] me a problem in the past.” The trial court did
not find that TDS or Trooper Story committed simple negligence, committed gross
negligence, or acted in bad faith by failing to capture and save the video recording of
Defendant’s driving. We are unwilling to expand the Ferguson “degree of negligence”
factor to include decisions based on perceived “social wisdom,” assumed “political
practicability,” or potential economic factors. We conclude that this factor weighs heavily
against dismissal of the indictment and outweighs the second and third Ferguson factors.
Fundamentally Fair Trial
A trial court’s decision concerning the fundamental fairness of a trial conducted
without missing evidence presents a constitutional issue that is reviewed de novo.
Merriman, 410 S.W.3d at 790. Following de novo review, we conclude that Defendant’s
right to a fair trial can be protected without dismissal of the indictment.
Conclusion
Based upon our review of the record, the arguments of the parties, and the applicable
law, we reverse the ruling of the trial court suppressing evidence and dismissing the
indictment. We reinstate the indictment and remand for further proceedings consistent
with this opinion.
_________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
- 15 - | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502675/ | By the Gourt,
Patciiin, J.
This is a motion to set aside 3 nonsuit. On a former hearing of the motion the plaintiff was required to make an affidavit o.f merits, and he now comes into court with an affidavit, stating that it is based upon advice of counsel to whom he has “ fully and fairly stated all the facts he expects to prove in said pause.” It is objected by the opposing counsel that this is not sufficient as an affidavit of merits, and that the party should not pnly state to his counsel the facts he expects to prove, but ail the facts in the case, so that the counsel could properly advise whether there are real merits in the case or not, for the reason that real merits are not based upon a partial statement of facts, but upon a disclosure of all the facts bearing upon the case. It seems to be held by the authorities *75on this subject, without- exception, that in stating facts to counsel for the purpose of making an affidavit of merits there must be a full, fair, and frank statement of all the facts in the case. Vide 1 Hill, 644; 19 Wendell, 617; 22 Wendell, 636; Green's Prac., 309; 1 Abbott's Digest, 57.
To allow an affidavit of merits based upon the advice bf' counsel to be used at all would seem to me to be extending the rule of evidence quite as far as any Court ought to be called upon to do. It is an ex parte, unsworn statement of the pmty in interest to his paid attorney, upon which statement that attorney gives an opinion, and that party in interest puts it in the form of an affidavit; and upon this the Court is called upon to act judicially, It is cl&ir such evidence as that should be confined within the strict letter of the law by which it is authorized. But it would seem that counsel upon either side had overlooked rule 59’of Circuit Court rules, which provides what shall be stated in an affidavit of this kind. The rule is as follows:
‘•Whenever it shall be necessary in an affidavit to swear to the advice of counsel, the party shall, in addition to what has usually been inserted, swear that he has fully and fairly stated his case to his counsel, and shall give the name of such counsel.”
The motion must -be denied, with costs, with leave to renew upon filing a proper affidavit of merits. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502677/ | By the Court., O’Grady, J.
The evidence is admissible, the presumption now being that the check is in • respondent’s possession. When lafct seen it was in his hands. It will be presumed he still has it. Nor is it necessary for the people to call the officers of the bank to show its payment or non-payment there. The information gave respondent notice to produce the check. The case of The People vs. Holbrook, cited by counsel, is conclusive upon this point. See, also, Hardin vs. Kretsinger, 17 Johns. 293; People vs. Smith., 20 Johns. 63.
It appeared in evidence that the drawer of the cheque had sufficient funds in bank to 'meet it at the time respondent obtained it and long afterwards.
At the request of the prosecution, the Court charged the jury, among other,.things, as follows-: ■
“ If by the act of the defendant in obtaining the check (provided the jury finds the other fact necessary for conviction), complaining witness suffered loss, then the defendant may be convicted thongh he.derived no benefit from his fraudulent act;”
—and refused-the following request, of the defendant’s counsel:
“If defendant received the check in the manner alleged, and still holds it, it is harmless in his hands, and unless the jury find from the testimony that defendant negotiated the check or received money on it, or some benefit from it, he must be acquitted ; citing People vs. Stone, 9 Wend., 182 ”
Defendant was convicted. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502678/ | By the Court,
Upson, J.
Jurisdiction of the action in the first instance was obtained, it at all, by the making and attaching the necessary affidavit to the writ, under the statute. §§ 4742, 4743, C. L.
Whether the Court can legally continue to exercise.that jurisdiction, depends upon the taking of the proper steps after the first. The notice is not necessary to give the Court jurisdiction of the action at the commencement. But when jurisdiction has been obtained, the subsequent proceedings, and especially those for the giving notice to a defendant not served with process, must conform to the law in order to authorize the exercise of its jurisdiction by giving judgment; and the statute in this State, in case of neglect to publish notice, requires the attachment to be dismissed with costs. § 4759, C. L. ; Brahe on Attachments, §§ 436, 437.
Mr. Drake, in the sections above quoted, says that want of such conformity will be error and a good ground for reversing the judgment of the Court, but will not make the proceedings void ; but under our statute, the Supreme Court, in King vs. Harrington, 14 Mich., 532, intimate that where the defendant is not served with process, the publication of notice is necessary to enable the court to obtain jurisdiction, and, also, that a return by the sheriff before return day is premature, as he could not know but that the defendant might be found by the return day. By the affidavits filed and amendment now made, in this case, the proof of publication appears to be sufficient, and although the return by the sheriff was premature, yet we fully concur with the views of the Court as expressed in the case of Scudder vs. York et al, 1 Mich. Nisi Prius, page 35, viz. : “As the writ, in contemplation of law, is not to be considered as returned, until the ‘ return day ’ thereof, if the defendant should come within the officer’s bailiwick before that time, it would be the duty of such officer to serve his writ; and though he may *117have actually deposited it with the clerk, I can see no reason why he might hot, in sich case, take it again for service.” Doubtless the more correct practice would be for the officer to retain the actual possession of the writ until the return day.
Motion denied. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8488751/ | *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
22-NOV-2022
08:13 AM
Dkt. 10 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
BRYAN SUITT,
Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAIʻI,
Respondent/Respondent-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1PR161000011)
NOVEMBER 22, 2022
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY EDDINS, J.
The Intermediate Court of Appeals (ICA) dismissed post-
conviction relief petitioner Bryan Suitt’s appeal for lack of
jurisdiction.
We agree with the ICA that Suitt’s appeal was not properly
taken from a final order. But because the appeal’s procedural
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
defects stemmed from ineffective assistance of counsel, we hold
that the ICA has jurisdiction to review the merits of Suitt’s
appeal.
I.
In 2015, Suitt pled no contest to murder in the second
degree. The court sentenced him to life in prison with the
possibility of parole. Later, the Hawaiʻi Paroling Authority
(HPA) set Suitt’s minimum term at 45 years. Suitt did not
directly appeal his conviction, but six months later – on his
own – filed a Hawaiʻi Rules of Penal Procedure (HRPP) Rule 40
petition for post-conviction relief. Suitt updated his hand-
written petition multiple times between 2016 and 2019. In its
final form, the petition claimed fifty-five grounds for relief.
These claims included ineffective assistance of counsel as well
as due process violations relating to the HPA minimum term
hearing.
Eventually, Suitt’s petition was heard in the Circuit Court
of the First Circuit. On March 16, 2020, the circuit court
found that while most of Suitt’s claims were “patently
frivolous” under HRPP Rule 40(g)(2), the claims relating to his
minimum term hearing were colorable under Lewi v. State, 145
Hawaiʻi 333, 348-49, 452 P.3d 330, 345-46 (2019) (holding that
“the HPA is required to set forth a written justification or
explanation (beyond simply an enumeration of any or all of the
2
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
broad criteria considered) when it determines that the minimum
term of imprisonment for the felony offender is to be set at a
Level II or Level III punishment”). The court then scheduled an
evidentiary hearing on these claims for April 20, 2020. It also
appointed counsel for Suitt.
On April 13, 2020, the court amended its previous order to
address additional claims for relief added by Suitt – these were
denied. The amended order retained a footnote from the previous
order mentioning that if the HPA held a new minimum term
hearing, Suitt’s remaining claims would be mooted. 1
On May 12, 2020, Suitt’s counsel called Suitt and informed
him, apparently for the first time, that the circuit court had
denied all of his claims except for the ones relating to his
minimum term sentencing. He told Suitt that the next day was
the last day he could appeal, that is, if he wanted to appeal.
Suitt did. Over the phone, Suitt told his attorney to
appeal “any and all grounds the court denied.” Then he
1 The footnote stated:
In the event HPA agrees to conduct a new minimum term
hearing pursuant to State v. Lewi and appoints new
substitute counsel for Petitioner, this would obviate the
need for this court to conduct an evidentiary hearing on
all of these grounds -- 4-8, 24, 25, and 39, relating to
the HPA minimum term hearing Level 3 determination, and
Grounds 2-3, 9, 26, 31, and 43, related ineffective
assistance of counsel as to the HPA minimum term hearing.
If HPA agreed to conduct a new minimum term hearing with
new counsel, all of these claims would be rendered moot.
3
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memorialized this request in a letter to his attorney. 2 The day
of the call, Suitt’s attorney submitted an appeal of the April
13 Order. 3 However the proceedings had not yet concluded in the
circuit court.
On May 14, 2020, the HPA responded to the April 13 Order.
The HPA represented that it had scheduled a new minimum term
hearing for Suitt, which mooted his remaining claims. 4 On May
20, 2020, the circuit court issued a new order. It dismissed
2 Suitt’s letter read in relevant part:
Greetings, in summary of our discussion on 5/12/2020, I
have the following understandings:
I was notified by you verbally that the court denied my
grounds in my HRPP Rule 40 Petition, except for those
relating to Levi vs State, and that 5/13/2020 was the last
day I could appeal. I expressed to you that I wanted to
Appeal any and all grounds the court denied, grounds 1-55
of record under my HRPP Rule 40 Petition SPP. NO. 16-1-
0011. I further had my brother Clayton text to you that I
wanted an Appeal for all denied grounds on 5/13/2020. I do
appreciate that you notified of my right to appeal; the
court denied the grounds without notification to me and I
was “surprised” when you informed me of the denied grounds
in my Rule 40. You are well aware of my intention to
exhaust state remedies and pursue Federal review of the
actions of the First Circuit Court and its officers in my
criminal case, as well as the procedures of the HPA which I
believe are in violation of Constitutional and U.S. Supreme
Court law.
3 Suitt’s counsel submitted an amended appeal on the next day, May 13.
The changes are irrelevant to this appeal. Counsel included the words
“court-appointed” and attached the order appointing him.
4 The HPA’s response stated:
In this case, the HPA has scheduled a new minimum term
hearing. The claims against the HPA in the instant
petition are therefore moot because this court can no
longer grant the effective relief. Accordingly, the
remaining claims against HPA should be dismissed, with the
corresponding evidentiary hearing set for May 26, 2020 for
these claims should be vacated.
4
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
the remaining claims in the petition as moot and vacated the
scheduled evidentiary hearing.
Suitt’s counsel didn’t file a notice of appeal from the May
20 Order. And he didn’t file an opening brief for his appeal of
the April 13 Order. Nor did he ask the court for an extension.
On August 28, the ICA warned Suitt’s counsel that the time to
file the briefs had expired and that the appeal could be
dismissed under Hawaiʻi Rules of Appellate Procedure (HRAP) Rule
30. Almost a month later, on September 24, Suitt’s counsel
submitted a motion asking for a temporary remand to the circuit
court so that he could withdraw as counsel there. In the same
motion, Suitt’s counsel sought an extension of time on the
opening brief. The ICA construed this as a request for relief
from the defaulted opening brief and granted both parts of the
motion. On November 16, Suitt’s counsel filed a motion to
withdraw in the circuit court. The circuit court promptly
granted his motion and Suitt’s current counsel was appointed.
On May 31, 2022, the ICA dismissed Suitt’s appeal for lack
of appellate jurisdiction because the appeal had not been taken
from a final order. It found that neither HRAP Rule 4(b)(4)’s
Premature Notice exception nor the exceptions identified in
5
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Grattafiori v. State, 79 Hawaiʻi 10, 13, 897 P.2d 937, 940 (1995)
for untimely appeals applied. 5
Suitt appealed. Suitt argues that the April 13 Order was
in fact a final order.
As a question of law, the existence of jurisdiction is
reviewed de novo under the right/wrong standard. See Lingle v.
Hawaiʻi Gov’t Emps. Ass’n, AFSCME, Local 152, AFL-CIO, 107
Hawaiʻi 178, 182, 111 P.3d 587, 591 (2005).
II.
The right of appeal derives from statute. See Chambers v.
Leavey, 60 Haw. 52, 56, 587 P.2d 807, 810 (1978). In this case,
HRPP Rule 40(h) authorizes defendants to appeal judgments
entered in post-conviction proceedings. Such appeals must
comply with HRAP Rule 4(b), and like all appeals, are subject to
a finality requirement. See State v. Baranco, 77 Hawaiʻi 351,
5 The ICA stated:
In an appeal from a circuit-court proceeding involving an
HRPP Rule 40 petition for post-conviction relief,
we have permitted belated appeals under two
sets of circumstances, namely, when (1) defense
counsel has inexcusably or ineffectively failed
to pursue a defendant’s appeal from a criminal
conviction in the first instance, or (2) the
lower court’s decision was unannounced and no
notice of the entry of judgment was ever
provided.
Grattafiori, 79 Hawaiʻi at 13–14, 897 P.2d at 940–41
(citation omitted). However, neither exception
applies to the instant case.
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353, 884 P.2d 729, 731 (1994); State v. Nicol, 140 Hawaiʻi 482,
489, 403 P.3d 259, 266 (2017).
A final order “means an order ending the proceedings,
leaving nothing further to be accomplished.” Familian
Northwest, Inc. v. Cent. Pac. Boiler & Piping, Ltd., 68 Haw.
368, 370, 714 P.2d 936, 937 (1986); see also State v. Kalani, 87
Hawaiʻi 260, 261, 953 P.2d 1358, 1359 (1998) (assuming that
“final order” has the same meaning in the civil and criminal
context). An order is not final “if the matter is retained for
further action.” Familian Northwest, 68 Haw. at 370, 714 P.2d
at 937.
We agree with the ICA that the April 13 Order was not
final. The order did not end the Rule 40 proceeding; it
scheduled a further proceeding — an evidentiary hearing on
several of Suitt’s grounds for relief. It was not until the May
20, 2020 order, which vacated the hearing and dismissed the
remaining claims, that the court fully resolved Suitt’s claims
for the purpose of appeal.
Rule 4(b) does contain an exception. A notice of appeal
“filed after the announcement of a decision, sentence or order
but before entry of the judgment or order” is treated as if it
were filed after entry of the order. HRAP Rule 4(b)(4). In the
prototypical example, a judge delivers an oral order, with some
time elapsing before the order is formally entered. See, e.g.,
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Shimabuku v. Montgomery Elevator Co., 79 Hawaiʻi 352, 356, 903
P.2d 48, 52 (1995). The Premature Notice of Appeal exception
prevents technicality from displacing substance. If a final
order has been clearly communicated by the court, parties should
not be penalized for appealing before that order is formally
entered. This exception, though, does not remove the
requirement that the order announced be a final one. See
Grattafiori, 79 Hawaiʻi at 14, 897 P.2d at 941 (holding that HRAP
Rule 4(b)(4) does not apply when “the court has rendered no
decision whatsoever”); see also Wong v. Takeuchi, 83 Hawaiʻi 94,
101, 924 P.2d 588, 595 (App. 1996).
Here, no final order was announced prior to the May 20
Order. It is true that the April 13 Order foreshadows the
case’s ultimate disposition. Footnote 3 of the order notes that
the HPA could moot Suitt’s remaining claims by setting a new
hearing. This is precisely what the HPA did. But at the time
Suitt’s appeal was filed, he had no way of knowing what action
the HPA would take. And a court indicating what it would most
likely do, if one of the parties were to act in a certain way,
is too indefinite and conditional to constitute the announcement
of a final order.
Because the April 13 Order was not final and does not fall
within the HRAP Rule 4(b)(4) exception, the appeal did not give
rise to appellate jurisdiction.
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However, the April 13 Order’s lack of finality is not the
end of the story. Hawaiʻi appellate courts permit belated
appeals when defense counsel has acted inexcusably or
ineffectively in pursuing an appeal. See Grattafiori, 79 Hawaiʻi
at 14, 897 P.2d at 941. The ICA did not think this exception
applied to Suitt’s case, perhaps because Grattafiori appears to
confine the exception to appeals “in the first instance.” Id.
While Suitt did not contest this point in his cert application,
we raise it due to its constitutional significance. See State
v. Pitts, 131 Hawaiʻi 537, 541, 319 P.3d 456, 460 (2014). Here,
we part ways with the ICA’s analysis.
Since Grattafiori, we have decided several key ineffective
assistance of counsel cases. These cases make clear that the
right to effective counsel goes further than appeals in the
first instance. See, e.g., State v. Uchima, 147 Hawaiʻi 64, 76,
464 P.3d 852, 864 (2020) (holding that a defendant has a right
to the effective assistance of counsel during certiorari
review).
Maddox v. State, 141 Hawaiʻi 196, 407 P.3d 152 (2017) is on
point. In Maddox, we considered an appeal rendered untimely by
the procedural lapses of defense counsel. We began with the
basic premise that defendants have a right to counsel under
article I, section 14 of the Hawaiʻi Constitution. To vindicate
this right, counsel have “an ongoing obligation to [the
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defendant] that include[s] pursuing an appeal if [the defendant]
chose this course.” Id. at 203, 407 P.3d at 159. This right to
counsel encompasses “the procedural steps necessary to bring
about the appeal.” Id. It follows that defense counsel have a
“duty to diligently fulfill the procedural requirements of
appeal if the defendant elects to appeal.” Id. When counsel’s
procedural failures deny the defendant an appeal, the defendant
“need not demonstrate any additional possibility of impairment
to establish that counsel was ineffective.” Id. at 206, 407
P.3d at 162.
Suitt made clear that he wanted to exercise his statutory
right to appeal the dismissal of his Rule 40 claims. Not
content to communicate this to his attorney over the phone, he
repeated his intent in writing. Of course, Suitt could not have
been expected to know that his attorney had given him inaccurate
information. May 13 was not the last day Suitt had to appeal —
rather, any appeal would lack jurisdiction until all the grounds
in the petition had been disposed of by the court.
We presume prejudice to Suitt from his counsel’s failure to
take the procedural steps necessary to kick-start an appeal that
Suitt clearly desired.
The appropriate remedy is consideration of the appeal on
its merits. See Uchima, 147 Hawaiʻi at 80-81, 464 P.3d at 868-69
(noting that proceeding to the merits when the failure to timely
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file results from the ineffective assistance of counsel prevents
“unnecessary delay to the defendant whose rights have been
adversely affected”). We also clarify that the exception
outlined in Grattafiori for untimely appeals based on
ineffective counsel is not confined to appeals in the first
instance. It covers any instance where ineffective counsel has
nullified a defendant’s statutory right of appeal.
III.
For the reasons stated above, we vacate the ICA’s May 31,
2022 Order and remand this case to the ICA to address the merits
of the appeal.
Kai Lawrence /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Donn Fudo /s/ Sabrina S. McKenna
(on the briefs)
/s/ Michael D. Wilson
for respondent State of Hawaiʻi
/s/ Todd W. Eddins
Laura K. Maeshiro and
Craig Y. Iha (on the briefs)
for respondent Hawaiʻi Paroling
Authority, State of Hawaiʻi
11 | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502976/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
The issue is whether the district court exceeded its jurisdiction when it allowed individual applicants for governmental services to bring due process claims against officers of the Navajo Nation. We hold that it did not.
I
The case underlying this request for a writ of prohibition arose generally out of the activities of the Navajo Housing Services Department (NHSD), and particularly from the inability of the Real Parties in Interest (hereafter “Respondents”) to obtain certain services from the NHSD. Ralph Begay is the director of the NHSD. James Atcitty is the executive director of the Navajo Nation Division of Community Development. The NHSD administers at least four housing programs with the purpose of constructing, renovating, and weatherizing homes within the Navajo Nation. These are the Navajo Handicapped and Elderly Assistance Through Housing (HEARTH) Program, Weatherization *228Program (WP), Housing Improvement Program (HIP), and General Funds Housing Initiative (GFHI).
Navajo Nation general funds are used for the GFHI. The federal government funds the WP and HIP programs and the HEARTH program is funded by both the Navajo Nation and the federal government. As a condition of receiving federal funds, the Navajo Nation agreed to administer the HEARTH, HIP, and WP programs in compliance with applicable federal regulations. The regulations essentially set forth eligibility and selection guidelines and procedures for appeal of adverse determinations.
The Respondents wish to receive assistance under the housing programs. They have taken issue with the procedures by which the NHSD determines the eligibility of applicants for housing services. They argue that the NHSD has not complied with the federal regulations. The current eligibility procedure that the NHSD uses is summarized below:
1) Each Navajo Nation chapter develops a housing priority list of applicants’ names. There is no particular, mandated procedure for the chapters to follow in approving applicants for these priority lists.
2) The chapters then refer their lists to the NHSD staff.
3) The NHSD staff performs eligibility determinations of the persons on the chapter lists according to applicable federal regulations detailing specific criteria such as income, family size, condition of present dwelling, age, and disability.
Despite several years of attempts to receive NHSD services, the Respondents have not yet been included on their respective chapter priority lists.
On February 15, 1995, the Respondents filed a class action suit in the Window Rock District Court against the Petitioners. The Respondents amended their complaint on My 18, 1996. We treat the First Amended Complaint as the operative complaint for this proceeding.
The Respondents’ First Amended Complaint alleges three claims: 1) The Petitioners deprived them of due process of law when they failed to evaluate their applications for housing services using fair and orderly procedures and in accordance with ascertainable standards; 2) The Petitioners deprived them of due process of law by failing to notify them of the status of their applications, including problems with their applications, rank of application, and right to grieve the NHSD’s decisions; and 3) The Petitioners are not complying with expressly applicable laws of the United States and of the Navajo Nation when implementing application procedures for NHSD housing applicants.
The Respondents seek an injunction ordering the Petitioners to provide a fair and legally sufficient procedure for applying for housing services which protects due process rights. The Respondents also want the district court to order the Petitioners to comply with all expressly applicable laws when administering the NHSD’s housing programs.
The Petitioners responded by filing motions to dismiss the complaint for failure to state a claim and for lack of subject matter jurisdiction. The motions essentially *229claimed that the Navajo Nation Sovereign Immunity Act (Sovereign Immunity Act), 1 N.N.C. §§ 551-555 (1995), barred all of the Respondents’ claims. The district court denied the motions and ordered that the case proceed. The Petitioners then brought this petition alleging that the district court exceeded its jurisdiction.
II
Sovereign immunity defenses are jurisdictional and, if well-founded, provide an appropriate basis for issuing a writ of prohibition. Watts v. Sloan, 1 Nav. R. 185 (1995). Questions of governmental immunity present issues which should be resolved early in the litigation to “avoid waste ofjudicial and litigant resources....” Navajo Housing Authority v. Dana, 5 Nav. R. 157, 160 (1987). Also, we have recognized that sovereign immunity constitutes a jurisdictional limitation on the district court’s authority. Johnson v. Navajo Nation, 5 Nav. R. 192, 195 (1987).
The Sovereign Immunity Act protects the Navajo Nation from suit. 1 N.N.C. §§ 551-555. To overcome this jurisdictional bar, a plaintiff’s claims must fall within the class of claims to which the Navajo Nation has consented to suit. In this case, the Respondents rely on section 554.G. of the Sovereign Immunity Act. The relevant part of that section states as follows:
Any officer, employee or agent of the Navajo Nation may be sued in the Courts of the Navajo Nation to compel him/her to perform his/her responsibility under the expressly applicable laws of the United States and of the Navajo Nation, which shall include the Bill of Rights of the Navajo Nation....
The Navajo Nation Bill of Rights states, in part:
Life, liberty, and the pursuit of happiness are recognized as fundamental individual rights of all human beings. Equality of rights ... shall not be denied ... nor shall any person within [the Navajo Nation’s jurisdiction] be denied equal protection in accordance with the laws of the Navajo Nation, nor be deprived of life, liberty or property, without due process of law.
1 N.N.C. § 3 (1995). As such, an individual may bring suit against a Navajo Nation official where that official has deprived the individual of his or her due process rights.
Although due process is usually a malleable notion subject to changes in jurisprudential attitudes of fundamental fairness, this Court has previously provided some guidance to understanding the concept. We have said that Navajo due process is to be interpreted in light of the customs and traditions, or common law, of the Navajo people, and in a manner that will enhance Navajo culture, tradition and sovereignty. See, e.g., In re Goldtooth Begay #2, 7 Nav. R. 29, 31 (1992); Navajo Nation v. Platero, 6 Nav. R. 422, 424 (1991); In re Plummer, Sr., 6 Nav. R. 271, 274 (1990); Billie v. Abbott, 6 Nav. R. 66, 74 (1988). We have stated that Navajo due process rights are to be “considered in light of the enjoyment and protection of rights by all Navajos,” and that claims made under due process *230rights “are subject to considerations of the community good and Navajo perceptions of moral right.” Plummer, 6 Nav. R. at 275-76. In Platero, we stated that due process “is fundamental fairness in a Navajo cultural context.” 6 Nav. R. at 424. Reemphasizing this point, we stated in Begay #2 that due process is applied with strict standards of fairness and respect. 7 Nav. R. at 31.1
The Navajo principle of k’e is important to understanding Navajo due process. K’e frames the Navajo perception of moral right, and therefore this Court’s interpretation of due process rights. K’e contemplates one’s unique, reciprocal relationships to the community and the universe. It promotes respect, solidarity, compassion and cooperation so that people may live in hozho, or harmony. K’e stresses the duties and obligations of individuals relative to their community.2 The importance of k’e to maintaining social order cannot be overstated. In light of k’e, due process can be understood as a means to ensure that individuals who are living in a state of disorder or disharmony are brought back into the community so that order for the entire community can be reestablished.
In order to assert a due process right under Navajo law, a claimant must first assert a property or liberty interest that is protected by due process and which is being deprived in some way by governmental activity. Yazzie v. Jumbo, 5 Nav. R. 75, 76 (1986). The Respondents claim that they have aprotectable property interest in the governmental services provided by NHSD. The Petitioners argue that the Respondents, as mere applicants for governmental services, do not have a protectable property interest.
Federal courts have recognized that government benefits and entitlements may be protected property interests such that due process protections are required. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (holding that a person receiving welfare benefits under statutory and administrative standards has a property interest in continued receipt of the benefits such that process is due before the government terminates those benefits); Escalera v. New York Housing Authority, 425 F.2d 853, 861 (2d Cir. 1970) (holding that tenants of public housing have a property interest in continued tenancy such that process is due before eviction); Holmes v. New York Housing Authority, 398 F.2d 262, 264-65 (2d Cir. 1968) (holding that a state violates due process if it allocates public housing without any standards).
*231These entitlements will be considered property if the claimant has a legitimate claim, rather than a mere unilateral expectation, to the benefit. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Federal courts examine independent, but related, sources such as statutes and policy guidelines to determine whether a claimant has the requisite legitimate claim to the benefit. See id. Courts may also consider such things as mutual understandings and normative practices. See id.; Perry v. Sindermann, 408 U.S. 593, 601 (1972) (holding that although state law professors do not have tenure, a professor may be able to prove “de facto tenure” or an unwritten, but understood, rule for tenure, such that a property interest would be established). In Navajo law, k’e would be the mutual understanding and normative practice that defines a person’s legitimate claim to fair procedures.
Due process under Navajo common law requires that the Navajo Nation government “ensure fundamental fairness in all tribal actions.” Keeswood v. Navajo Tribe, 2 Nav. R. 46, 50 (1979). Thus, for example, we have held that due process provides for notice and an opportunity to be heard, Begay v. Navajo Nation, 6 Nav. R. 20, 24 (1988); entitles parties to representation, Boos v. Yazzie, 6 Nav. R. 211, 214 (1990); and protects the right to seek political office, Bennett v. Navajo Board of Election Supervisors, 6 Nav. R. 319 (1990). These due process protections are similar to those applied by American courts and are concerned with equality in process and not of outcome. That is, everyone is “equal” before the law, and so long as everyone has an opportunity to be heard, the outcome is irrelevant.
The Petitioners urge this Court to follow federal law, particularly Roth, 408 U.S. 564, and hold that the Respondents, as mere applicants for governmental benefits, do not have a protectable property interest. However, we do not believe that the inquiry stops there. Traditional Navajo due process encompasses a wider zone of interest than general American due process. In cases concerning entitlement to governmental benefits, Navajo due process protections would extend to outcome, making it very relevant. The Navajo doctrine of distributive justice underlies this reasoning:
Distributive justice is concerned with the well-being of everyone in a community. For instance, if I see a hungry person, it does not matter whether I am responsible for the hunger. If someone is injured, it is irrelevant that I did not hurt that person. I have a responsibility, as a Navajo, to treat everyone as if he or she were my relative and therefore to help that hungry person. I am responsible for all my relatives. This value which translates itself into law under the Navajo system of justice is that everyone is part of a community, and the resources of the community must be shared with all.
Yazzie, Life Comes From It: Navajo Justice Concepts, 24 N.M.L. Rev 175, 185 (1994).
Distributive justice requires sharing of Navajo Nation resources among eligible applicants. It has its roots in Navajo traditional concepts of community progress through sharing. This is part of Navajo egalitarianism. If the Respondents are eligible for receiving governmental benefits, and although they *232are mere applicants, they have a sufficient property interest under Navajo common law to assert due process claims under the Navajo Nation Bill of Rights. We hold that the Respondents in this case have asserted due process rights which would permit them to sue the Navajo Nation.
Ill
The Petitioners have raised other immunity issues which would be better addressed on appeal, if necessary, following development of a full record. For purposes of this petition, we address only the due process issue as outlined above.
The alternative writ of prohibition is vacated and the petition for writ of prohibition or other appropriate writ is denied.
. In order to counter-balance a potentially broad reading of due process, this Court has noted that it should be cautious in finding due process protections where Navajo sovereignty is at issue. In Billie, 6 Nav. R. 66, 74 (1988), we stated as follows:
When Navajo sovereignty and cultural autonomy are at stake, the Navajo courts must have broad based discretion in interpreting the due process clauses of the [Indian Civil Rights Act and the Navajo Bill of Rights], and the courts may apply Navajo due process in a way that protects civil liberties while preserving Navajo culture and self-government.
. This is a part of the broader Navajo traditional principle of freedom with responsibility. An individual has much freedom in Navajo society, but that freedom must be exercised with respect for self, family, clan relatives, and the community at large. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502978/ | OPINION
Opinion delivered by
CADMAN, Associate Justice.
This is an appeal of a jury verdict in favor of Navajo Nation entity employees and an order denying the Navajo Nation’s motion for directed verdict.
I. Facts
Elvira Crockett, Lalora Charles Roy, and Charmaine Tso (“employees”), were employed by Navajo Agricultural Products Industry (“NAPI”), a Navajo Nation farming enterprise. The Economic Development Committee (“EDC”) of the Navajo Nation Council is the oversight committee for NAPI. The NAPI Board of Directors reports management activity to the EDC. On November 17, 1992, the EDC held a meeting concerning NAPI. NAPI management was not informed of the meeting; however, the plaintiff employees attended.
The employees told of possible NAPI mismanagement and misconduct at the meeting. They also presented business documents to the EDC that were taken without NAPI management authorization. The EDC directed NAPI not to take retaliatory action against the employees for these actions.
Nevertheless, the employees were implicated, placed on indefinite administrative leave, and then terminated on December 23, 1992. After an unfavorable determination under NAPI’s grievance procedures, the employees filed an origi*238nal action in the Window Rock District Court claiming that NAPI violated their rights to due process of law and freedom of speech. They asked the court to reinstate them in their positions and award them damages. At trial, NAPI moved for a directed verdict which the district court denied. The jury returned a general verdict in favor of the employees, awarding them monetary damages. NAPI appealed the denial of its motion for directed verdict and the jury verdict on May 4, 1994. The employees cross-appealed on May 17, 1994.
The issues on appeal are the following:
1. Whether NAPI, an enterprise of the Navajo Nation, is immune from suit.
2. Whether NAPI can raise qualified immunity as a defense for the first time on appeal.
3. Whether the district court correctly denied NAPI’s motion for directed verdict on the employees’ freedom of speech and due process claims.
4. Whether evidence surrounding a 1991 meeting between NAPI, the EDC, and Navajo Nation President Peterson Zah was admissible.
5. Whether the employees proved damages by “clear and convincing” evidence and whether they are entitled to damages for emotional distress.
II. Immunity From Suit
A. The Insurance Exception
Enterprises of the Navajo Nation, including NAPI, are immune from suit in the absence of an express waiver by the Navajo Nation. 1 N.N.C. §§ 352-353 (1988); 7 N.N.C. § 257 (1985). The Nation’s immunity from suit is jurisdictional and can be raised for the first time on appeal, as NAPI does in this case. Navajo Housing Authority v. Dana, 5 Nav. R. 157, 160 (1987).
The Navajo Nation Sovereignty Act (“Act”), 1 N.N.C. §§ 351-355, provides four exceptions to the Nation’s immunity from suit. In this case, we are concerned only with the insurance exception, which is as follows:
The Navajo Nation may be sued only in the Courts of the Navajo Nation with respect to any claim which is within the express coverage and not excluded by either commercial liability insurance carried by the Navajo Nation or an established Navajo Nation self-insured and/or other claims program of the Navajo Nation government, approved and adopted pursuant to the laws of the Navajo Nation....
1 N.N.C. § 354(f) (Supp. 1984-85). The other subsection applicable to this issue requires the Nation to carry liability insurance to cover “wrongful deprivation or impairment of civil rights as set forth in ... the Bill of Rights of the Navajo Nation.” 1 N.N.C. § 354(f)(5).1 This subsection requires the Nation to carry liability insurance to cover civil rights claims and any damages arising therefrom. *239Raymond v. Navajo Agricultural Products Industry, 7 Nav. R. 142, 144-45 (1995). It also modifies and limits the requirement in section 354(f) that the Nation may only be sued for claims expressly covered by its policy.
The employees’ claims are framed as civil rights claims, notably for violations of freedom of speech and due process of law. NAPI admits that its insurance covers civil rights claims, but argues that the employees’ claims arise from employment termination and not civil rights, and therefore are expressly excluded under its policy. NAPI’s policy does exclude “any liability arising out of any ... [e]mployment related or personnel practices, policies, acts, errors or omissions including ... [t] termination of employment... [and] compensation....” Fireman’s Fund Policy, Section I.C.2.c.(2), (3).
Where the Nation’s insurance excludes coverage for employment-related claims, a disgruntled employee cannot overcome the Nation’s immunity from suit. Raymond, id. at 144-45. In Raymond, we agreed with the district court that the plaintiff’s claims were “employment-related,” and not civil rights claims, although she raised civil rights claims for the first time on appeal. Id. at 145. In contrast, the employees in this case properly raised civil rights claims in their complaint and the district court decided they were civil rights claims. The district court has the duty to make that determination. Raymond, id. Accordingly, this case is a civil rights case, and not an employment case.
As stated above, the Act expressly mandates that the Nation’s insurance policy include protection against civil rights violations. 1 N.N.C. § 354(f)(5) (1988).2 NAPI’s insurance policy provides coverage for federal or state civil rights violations at Sections V.P and V.S, which state as follows:
Public Officials ’ Errors and Omissions means any and all Wrongful Acts by an Insured in the discharge of duties for the Named Insured ... Wrongful Act includes actual or alleged violations of antitrust statutes, negligent ministerial acts, and violations of federal or state civil rights providing coverage is otherwise afforded under this policy, (emphasis in original).
Although this provision only refers to federal or state civil rights violations, we find it is boilerplate language and interpret it to include violations of Navajo Nation law. The intent is to redress civil rights violations. NAPI’s policy does not exclude civil rights claims and by law they cannot be excluded. The Navajo Nation civil rights laws would be rendered meaningless if civil rights claims were excluded in a policy. Thus, the Nation’s immunity from suit is waived under the Act’s insurance exception.
*240B. Qualified Immunity
NAPI argues that in the absence of a showing of bad faith and gross negligence, an official who violates a person’s rights guaranteed by the Navajo Nation Bill of Rights is entitled to qualified immunity. See 1 N.N.C. § 354(f)(4)(B) (Supp. 1984-85). Individual Navajo Nation officials are entitled to qualified immunity if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 813, 818 (1982). For our purposes, constitutional rights are those enumerated in our Bill of Rights.
Qualified immunity is an affirmative defense which must be explicitly pleaded in the answer to provide notice to all parties. NAPI waived this argument because it failed to do so. Simply citing the entire Navajo Nation Sovereign Immunity Act as an affirmative defense, as NAPI has done in this case, is insufficient.3 The Act has many defenses and the plaintiff cannot be expected to guess at which defense the defendant is relying on if the entire Act is cited.
III. Directed Verdict
A. Free Speech
NAPI argues that the district court erred in denying its motion for a directed verdict on the issue of free speech. Navajo common law is the law of preference in the courts of the Navajo Nation. Navajo Nation v. Platero, 6 Nav. R. 422, 424 (1991). This Court applies Navajo common law to determine whether an individual’s right to free speech has been violated. It provides that an individual has a fundamental right to express his or her mind by way of the spoken word and/or actions. As a matter of Navajo tradition and custom, people speak with caution and respect, choosing their words carefully to avoid harm to others. This is nothing more than freedom with responsibility, a fundamental Navajo traditional principle.
The speech in this case involved 1) attending and speaking at the EDC meeting; 2) copying confidential documents; and 3) bringing the documents to the meeting. The parties debate whether the employees were fired for copying and removing the documents, a NAPI policy violation, or for attending and speaking at the meeting. The district court’s determination of protected speech focused on the statements made and documents presented at the meeting. Thus, for purposes of review by this Court, the speech in question is statements made and documents presented by the employees at the EDC meeting.
Similar to the American system, however, there are Navajo traditional limitations on the content of speech. For example, on some occasions, a person is pro*241hibited from making certain statements, and some statements of reciting oral traditions are prohibited during specific times of the year.
Furthermore, speech should be delivered with respect and honesty. This requirement arises from the concept of ke’, which is the “glue” that creates and binds relationships between people. To avoid disruptions of relationships, Navajo common law mandates that controversies and arguments be resolved by “talking things out.” This process of “talking things out,” called hoozhoojigo, allows each member of the group to cooperate and talk about how to resolve a problem. This requirement places another limitation on speech, which is that a disgruntled person must speak directly with the person’s relative about his or her concerns before seeking other avenues of redress with strangers.
In the employment context, relationships are established according to the personnel policies, and other instruments. When an employee has a complaint about a supervisor, according to Navajo custom and tradition, he or she should first approach the supervisor and discuss the problem in a respectful manner. Moreover, under the Navajo common law concept of nalyeeh, the employee should not seek to correct the person by summoning the coercive powers of a powerful person or entity, but should seek to correct the wrongful action by “talking things out.” The employee should not seek a remedy from a stranger, but should rather explain the problem to the person or one of his or her relatives and ask that “things be put right.” If this method proves unsuccessful, then the employee also has access to an internal employment grievance process. Even in this formal, modem process for addressing grievances, the traditional rales of respect, honesty, and kinship apply.
In situations where the complaint alleges employer mismanagement, distinct from internal personnel matters, an employee is entitled to consult others vested with the authority to hear such complaints, such as the organization’s own committee, or an oversight of the Navajo Nation Council. An oversight committee is limited by 2 N.N.C. § 191, “to legislation and policy decisions and shall not involve program administration....” This removes most personnel complaints from the committees, and limits their review of director conduct to overall competence in management.
When discussing management concerns with the appropriate oversight committee, an employee must follow certain limitations. The employee must be respectful in his or her approach, and an initial inquiry with management to “talk things out” is encouraged. Second, the speech must involve matters of public concern and fall within the oversight authority of the committee. When an employee gives a statement before an official government committee, he or she speaks in a context that is inherently public in nature. This also includes any documents which the employee may distribute. Documents must be of a public nature and if they are confidential or restricted, then proper authorization for their distribution must be obtained.
An oversight committee often has to rely on information from sources other *242than those in positions of authority to ascertain the full picture. However, an employee is prohibited from raising internal personnel matters or other personal problems before a committee. The court should also consider whether the business is a government enterprise or private entity.
An employee must comply with these limitations when alleging that he or she was terminated or otherwise mistreated as a result of his or her speech. The employee must also show some nexus between the termination or other adverse employment action and the speech. One method for proving this element is in terms of time — whether the adverse employment action occurred shortly after the occurrence of the speech. That is, the employee must show his or her speech was a significant factor or motivation in the adverse employment action.
This Court finds the speech in question was “a matter of public concern.” At the meeting, the employees expressed safety and environmental concerns, undue interference by the Bureau of Indian Affairs in P.L. 93-638 contracts, and allegations of misconduct and misfeasance on the part of NAPI management. The disclosure of misconduct or misfeasance by a government entity is a matter of public concern, as are questions of effectiveness and composition of the NAPI management board. Likewise, safety and environmental concerns have the potential to directly impact the general public, and therefore, are a matter of public interest. Members of the EDC had previously visited NAPI and invited the employees to contact them about their concerns with management, in particular Appellee Crockett. The chairman of the EDC also advised Crockett to bring supporting documentation to the meeting.
Moreover, the employees were speaking before an official body of the Navajo Nation Council. When an employee gives a statement before an official government committee, he or she speaks in a context that is inherently public in nature.
The second point of inquiry is whether NAPI’s interest in promoting the efficiency of the public services it performs through its employees outweighs the employees’ right to free speech. Indeed, NAPI has an interest in ensuring compliance with office policies and to maintain order and control over its employees. The jury concluded, however, that the employees were not terminated for violations of NAPI policy, and NAPI does not contest this finding on appeal. Furthermore, the employees’ attendance at the meeting did not result in any significant harm to NAPI. The documents distributed at the meeting were never made public or put in the “wrong hands,” nor was there evidence of disruption or disharmony in the office as a result. NAPI’s interest to not disclose demoralizing or disruptive information is not an adequate interest to outweigh an individual’s right to free speech.
Based on the foregoing, this Court finds that the district court did not err in its decision that the speech was a matter of public concern. The decision of the district court that the employees’ speech was protected is affirmed.
*243B. Due Process
NAPI also filed a motion for directed verdict on the issue of due process, which the district court denied. Clearly, as in the case of free speech, there were outstanding questions of fact regarding the due process issue, which the court properly submitted to the jury. Specifically, the question of whether the grievance hearings were fair is a question of fact for the jury. Evidence was presented by the employees which showed potential violations of due process, making it impossible for the judge to rule in favor of NAPI as a matter of law. The evidence shows that 1) Roy was not permitted to call a witness at a grievance hearing, 2) Step I and Step II of the employees’ grievances were heard by the immediate supervisor who fired them, 3) A tie-vote in Roy’s case at Step III was construed as an affirmation of Step II’s decision, and Tso never received a decision at Step III after a panel member disqualified herself, and 4) The panel at Step IV again reached a tie-vote, effectively denying the employees an opportunity to have their discharges reviewed.
Moreover, the question of whether the employees were terminated for good cause was also unresolved at the time of the motion. NAPI argued that they were fired for policy violations, but employees argued they were fired in retaliation for the criticisms they made at the EDC meeting. The determination of NAPI’s reasons for firing the employees is a question of fact for the jury. Consequently, the district court did not err in denying the motion for directed verdict on the issue of due process.
IV. Admissibility of 1991 Meeting
NAPI argues that the district court erred in admitting prejudicial testimony regarding a 1991 meeting. In 1991, a group of NAPI employees, along with their supervisor, Ferdinand Notah, met with the EDC and President Peterson Zah to air their grievances and distribute documents. The employees testified about the 1991 meeting to show that the sharing of documents with an oversight entity had not harmed NAPI in the past.
The decision to overrule an objection and admit the disputed evidence is discretionary. The district court, in this case, determined that such evidence was relevant and, therefore, admissible. The district court also gave a limiting instruction to decrease its prejudicial effect and increase its probative value. This Court finds no abuse of discretion on the part of the district court. The decision to admit the evidence is therefore affirmed.
V. Damages
NAPI argues that the employees are not entitled to monetary damages because their loss was not a “personal injury” or “property damages,” and that they failed to prove damages by “clear and convincing evidence” which were the “direct and *244proximate result” of wrongful deprivation or the impairment of civil rights, as required by 1 N.N.C. § 354(f)(5). NAPI also dismisses the employees’ claims for lost wages since they are excluded from the Nation’s insurance policy under the employment-related claims exclusion.
NAPI, however, failed to preserve three of these issues for appeal. Evidentiary requirements of the Act, such as 1 N.N.C. § 354(f)(5), may not be raised for the first time on appeal. This Court will only consider questions which were raised and reserved in the district court. 7 N.N.C. § 803 (Supp. 1984-85). Furthermore, Nav.R.Civ.P. 48(a) provides that “[n]o party may assign as error the giving or the failure to give an instruction, unless objection is made before the jury retires to consider its verdict, stating distinctly the instruction objected to or improperly omitted and the grounds of his objection.” A careful review of the trial court record reveals that NAPI never raised the “direct and proximate” element or the “personal injury or property damage” issue below, nor did NAPI object to the jury instruction as given, which included lost wages as part of the damages calculation. Thus, NAPI is barred from raising these issues on appeal for the first time.
With regards to the “clear and convincing” standard, NAPI properly preserved this issue for appeal by submitting to the jury that the damages were not adequately proven and by including in the jury instructions the “clear and convincing” standard. The Act mandates this higher evidentiary standard in the limited case of civil rights violations. 1 N.N.C. § 354(f)(5).
Consequently, this Court is faced with the sole issue of whether employees proved damages by “clear and convincing evidence.” Under Navajo Nation law, this Court will not reverse a jury’s determination of damages unless it finds that the award is unsupported by the evidence. Chavez v. Tome, 5 Nav. R. 183 (1987). To meet this standard, the plaintiffs must establish damages with “reasonable certainty” and with the “best available evidence.” Wilson v. Begay, 5 Nav. R. 1, 5 (1988). Moreover, Navajo Nation law requires that the record contain a “reasonable justification” for the amount of damages awarded which includes a calculation of damages. Id. If the only available evidence is testimonial, then witness testimony is adequate to satisfy the evidentiary standard and the defendant has the burden of disproving such testimony. Id.
In this case, the employees presented “Exhibit 18” at trial which listed their monetary damages, covering lost earnings, medical treatment, and any other actual monetary loss, as stated in the jury instructions. The amounts listed in Exhibit 18 were presumably derived from receipts, but these receipts were never produced or introduced into evidence. NAPI did not object to the submission of Exhibit 18 into evidence, but this omission does not release the employees from their burden to prove damages by clear and convincing evidence. NAPI’s belief that Exhibit 18 was insufficient is distinct from a belief that it is inadmissible.
Clearly, in this instance, the “best available evidence” are the receipts that employees claimed they used to create their general summary in Exhibit 18. *245Employees’ testimony as to the Exhibit 18’s validity is inadequate to satisfy the “clear and convincing” standard, because their testimony was not the only evidence available. Other available evidence consisted of receipts and personal records which were not directly admitted into evidence. For these reasons, the employees failed to meet their burden of proof.
Another component of the jury instructions for damages was pain and suffering. On cross-appeal, the employees argue that the damages awarded failed to include this element of damages. Appellants argue that the Sovereign Immunity Act does not provide for emotional distress, and in the alternative, that the damages for emotional distress were not proven by clear and convincing evidence.
The Act does not explicitly preclude or provide for emotional distress. The subsection in question, 1 N.N.C. § 354(f)(5), states:
[T]he sums [for] which the Navajo Nation as insured shall become legally obligated to pay as damage because of personal injury and/or property damage, shall include liability for actual monetary loss and damage....
Pursuant to this subsection, a plaintiff may recover all kinds of damages, as long as they result from personal injury or property damages. Personal injury includes lost wages, medical expenses, and pain and suffering. 2 Dan B. Dobbs, Law of Remedies: Damages-Equity-Restitution § 8.1(1) (2d ed. 1993). As such, this Court concludes that 1 N.N.C. § 354(f)(5) includes damages for emotional distress arising from civil rights violations.
In this case, the jury awarded damages slightly in excess of Exhibit 18, meaning that the excess amount could be attributed to pain and suffering. The excess amounts were $208 for Roy, $123 for Tso, and $548 for Crockett. Contrary to the employees’ assertion, such amounts are not nominal. However, these excess amounts are suspect because they are dependent upon the amounts awarded for monetary damages, which were not proven by “clear and convincing” evidence. Where the appropriate amount of damages cannot be properly determined on appeal, a remand is required. Wilson, 6 Nav. R. at 7. Therefore, the jury’s determination of monetary damages and emotional distress are reversed and the issue remanded for further proceedings to determine the appropriate amount of damages.
VI. Conclusions
Accordingly, this Court affirms the verdict in favor of the employees and remands the issue of damages to the district court for further proceedings.
. This provision is marked as section 354(e) (5) in Navajo Tribal Council Resolution No. CD-60-86 (passed December 11, 1986), but would be marked as section 354(f) (5) in the Code, if the same format is used in the 1995 edition.
. The Navajo Nation Attorney General noted in a legal opinion that Section 354(f) (5) requires inclusion of commercial insurance coverage for civil rights violations, and that if such insurance coverage is not available, “then the amendment required coverage within the tribe’s self-insurance liability retention.” Op. Att’y Gen. 5 (Oct. 30, 1986). The Attorney General went so far as to identify an “insurance coverage exception.” Id.
. NAPI’s defense is as follows: “The Navajo Nation is immune from suit in this action pursuant to Title 1, §§ 351 through 355, and related provisions of the Navajo Tribal Code (Sovereign Immunity Act).” | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502979/ | OPINION
Opinion delivered by
YAZZIE, Chief Justice.
Toyo-Cinema Co. (“Appellant”) claims that the district court erred in dismissing its case against Stanley Tallman and Peabody Coal Company (“Appellees”). The Appellant raises two issues on appeal: 1) May a district court extend the time for a plaintiff to complete service of process beyond the six months provided for in Nav. R. Civ. P. 6(f); and 2) Assuming that a judge has extended the time for completion of service of process beyond the six months provided for in Nav. R. Civ. P. 6(f), may another judge dismiss an action in which service is completed more than six months after filing of the complaint, but within the extended time for completion of service granted by the first judge.
I
On November 11, 1990, a motor vehicle collision occurred between Appellant Toyo-Cinema’s employees (Lee and Lin) and a vehicle operated by Appellee Stanley Tallman, then an employee of Appellee Peabody Coal Company. Tallman was driving a company vehicle. The incident occurred near Kayenta, within the territorial jurisdiction of the Navajo Nation. Tallman is an enrolled member of the Navajo Nation. Peabody is a foreign corporation which does busi*247ness within the territorial jurisdiction of the Navajo Nation.
The Appellant and Lee and Lin filed personal injury suits against the Appellees in both the Navajo Nation and Arizona state court systems. The Navajo Nation complaint was filed on October 15,1992 in the Tuba City District Court. The Arizona state complaint was filed on November 9,1991 (and amended on September 17, 1992) in the Maricopa County Superior Court.
During September and October of 1992, service of process was made on the Appellees for the Arizona state case. Service was not, however, made for the Navajo Nation case. Instead, the Appellant filed a motion to extend the period of time within which service could be made. A six month extension was granted (first extension) by Judge Evelyne E. Bradley on March 8, 1993. The extension enlarged the time for service to October 15,1993. In August, 1993, the Appellant again filed for an extension and, on August 30, 1993, was granted another six month enlargement of time (second extension) by Judge Wayne Cadman Sr. This extension enlarged the time for service to April 15, 1994.
Meanwhile, in the Arizona state case, Appellee Tallman was dismissed by order, on December 23, 1993, due to the state court’s lack of subject matter jurisdiction. On June 22, 1994, the state court granted Appellee Peabody summary judgment due to the Appellant’s failure to state a claim upon which relief could be granted.
In the Navajo Nation case, the Appellant filed for a third extension of time within which to serve process. A two year extension was granted (third extension) on April 18, 1994 by Judge Cadman. This extension enlarged the time for service to April 15,1996. Service on the Appellees was finally accomplished on April 7, 1994, within the time period allowed by the second extension.
On June 23, 1994, Judge Cadman recused himself from hearing the case and Judge Manuel Watchman stepped in to hear subsequent proceedings.
On July 21, 1994, Appellee Tallman moved to dismiss the suit for the Appellant’s failure to serve process within the time period prescribed by Nav. R. Civ. P. 6(f) (“Rule 6(f)”). Appellee Peabody joined in the motion seven days later. On July 28,1994, the individual plaintiffs, Lee and Lin, were dismissed for failing to appear for their depositions; this left Toyo-Cinema as the sole plaintiff.
In response to the Appellees’ motion to dismiss, Judge Watchman entered an Order, on December 28, 1994, granting the dismissal. In the Order, Judge Watchman wrote that “[njotwithstanding the previous ruling of the Court, it appears clear that the action should have been dismissed pursuant to Rule 6(f) on April 16, 1993.”
II
Rule 6(f) states that “[a]n action shall be dismissed without prejudice if the summons is not issued and service completed within six months from the date of the filing of the complaint.” Judge Watchman’s dismissal order states that “[t]he language of the Rule is mandatory.” (Order at para. 4). We disagree.
*248Rule 6(b), Nav. R. Civ. R, states that an extension of the six-month time limit may be given by the court. Rule 6(b) reads in pertinent part:
Extension of Time. When by these Rules or by notice given thereunder or by order of court, an act is required to be done at or within a specified time, the court for good cause may (1) with or without motion or notice, order the period enlarged if request is made before the expiration of the period originally prescribed or as extended by a previous order...; but it may not extend the time for any actions under Rules 50(b), 52(b), 59(e), and 60(c), except under the conditions stated in them, (emphasis added).
Reading Rules 6(b) and 6(f) in conjunction with one another, we find that our courts may enlarge the time to serve process. Such a reading preserves flexibility in the rules. Flexibility in the time requirement for service may be necessary and appropriate in cases where the defendant cannot be found or where the defendant is evading service. Also, extensions may be necessary in cases that involve numerous defendants or in class actions where difficulties in certifying the class occasionally arise.
Our decisions allow for continuances in certain circumstances where flexibility is necessary. Compare Battles v. General Electric Credit Corp., 4 Nav. R. 26, 29 (1983) (holding that the district court should have granted a continuance of a trial where defendant’s counsel failed to appear) and Navajo Nation v. Rico, 4 Nav. R. 175, 176 (W.R. Dist. Ct. 1983) (stating that the grant of continuances of trials is within the sound discretion of the trial court and holding that good cause for a continuance did exist where the prosecution’s sole material witness was legitimately unavailable to testify) with In re Estate of Plummer, 6 Nav. R. 271, 274 (1990) (holding that good cause for a continuance did not exist where counsel had only one day to prepare for the hearing, although his client had over a month’s notice of the hearing). If continuances are allowed for entire trials in certain circumstances, then continuances for lesser components of the litigation process, such as service of process, are also to be allowed. For these reasons, we hold that Rule 6(f) is not mandatory and an extension of the time to serve process may be granted.
Ill
The trial court has discretion to grant or deny an extension of time to serve process. That discretion must be exercised in a sound and legal manner and not in an arbitrary or capricious manner. Battles, 4 Nav. R. at 27. The boundaries within which the trial court must exercise its discretion are determined by the facts of the case and established by rules and law. See In re Contempt of Sells, 5 Nav. R. 37, 38 (1985). In light of the strong language of Rule 6(f), the district court must find substantial justification to extend the time period; otherwise, Rule 6(f) would have little effect or force.
Specifically, the requesting party must show two things in order to receive an extension of time for service of process: due diligence and good cause. First, the *249party must prove that he or she has exercised due diligence in attempting to serve process. Once due diligence is proven, the second level of inquiry arises: whether the requesting party has proven good cause for an extension pursuant to Rule 6(b).
A. Due Diligence
More than inadvertence, mistake of counsel, or ignorance of rules is required to receive an extension of time for service of process. Rather, the requesting party must show that he or she exercised due diligence in attempting to serve process. The purpose of the due diligence requirement is to ensure that the plaintiff acts in good faith in seeking a continuance. Further, it is to prevent the plaintiff from sitting on claims and retaining sole control of them, with resulting prejudice to the defendant.
The determination of the requisite diligence rests with the sound discretion of the district court and should be made on a case-by-case basis. Bradley v. Benally, 6 Nav. R. 156, 158 (1989). It should be noted, however, that “[t]he diligence requirement imposes an affirmative obligation on the moving party to keep abreast... of the case.” Id. Where a requesting party has the opportunity or ability to serve process, for instance, the rule requires that he or she do so. See Plummer, 6 Nav. R. at 274 (stating that a litigant should not be able to claim the need for a trial continuance where he or she had ample time to prepare or where the party had the ability to act).
Our neighboring jurisdiction of Arizona also imposes a legal duty on the plaintiff to use due diligence in serving process upon the defendant. See, e.g., Grobe v. McBryde, 468 P.2d 936, 938, 939 (1970) (citing Murphy v. Valenzuela, 386 P.2d 78, 80 (Ariz. 1963)); Air Power v. Superior Court, 690 P.2d 793, 795 (Ariz. Ct. App. 1984); Riley v. Superior Court, 567 P.2d 1218, 1220 (Ariz. Ct. App. 1977). In Riley, for instance, the court found that the plaintiff failed to demonstrate due diligence because it made no attempt to ascertain the defendant’s home address even though several means to do so were available to the plaintiff. 567 P.2d at 1220. The court stated that a plaintiff cannot “sit back and say ‘it would not have worked’ as an excuse ... and then be heard to say he exercised diligence.” Id. Instead, the plaintiff must meet the affirmative obligation of attempting to serve process.
In the present case, the Appellant did not meet the affirmative obligation of attempting to serve process. The Appellant made no attempt to serve the Appellees for the Navajo Nation court case during the time permitted by Rule 6(f). The Appellant’s lack of due diligence is highlighted by the fact that it had the opportunity and ability to serve process. Instead, the Appellant purposefully delayed service of process for the Navajo Nation court case until the simultaneous state court case was completed. If the due diligence rule were applied to this case, we would hold that the Appellant did not make the requisite showing of due diligence for an extension of time to serve process. The due diligence rule will apply hereafter.
*250B. Good Cause
Good cause is not a standardized formula, but is instead a case-specific, fact-based inquiry that is to be conducted within the sound discretion of the trial court. See Battles, 4 Nav. R. at 27-29 (holding that the district court should have granted a continuance of a trial where defendant’s counsel failed to appear); Rico, 4 Nav. R. at 176 (stating that the grant of continuances of trials is within the sound discretion of the trial court and holding that good cause for a continuance did exist where the prosecution’s sole material witness was legitimately unavailable to testify). In determining whether good cause exists, our courts should consider policies favoring the speedy disposition of cases and the importance of serving timely notice so as to prevent prejudice to the defendant. See In re Certified Questions II, 6 Nav. R. 129, 131 (1989) (stating that unauthorized deviations in the Rules may prejudice parties and impede judicial efficiency); In re Estate of Goldtooth Begay #2, 7 Nav. R. 29, 31 (1992) (emphasizing the importance of notice in Navajo common law by stating “that Navajo due process ensures notice”); Peterson v. Ford Motor Credit Co., 2 Nav. R. 36, 41 (C. P. Dist. Ct. 1979) ([t]he primary purpose of having rules for service is to ensure the parties are notified and have an opportunity to defend).
Failure to serve notice in a timely manner allows the plaintiff to retain sole control of the case and causes great prejudice to the defendant. The Court has addressed the importance of preventing prejudice in the context of granting trial continuances. In Plummer, for instance, the Court stated that a party requesting a continuance must show that prejudice or harm will result if no continuance is granted. 6 Nav. R. at 275. In Battles, we stated that a showing of prejudice is an element common to all of the factors that a court may consider in deciding to grant a continuance. 4 Nav. R. at 28, 29 (holding that requiring the defendant to represent himself on short notice would sufficiently prejudice him). Finally, in Rico, the Court stated that “a showing of prejudice ... is most important.” 4 Nav. R. at 176. In light of the importance of preventing prejudice to the defendant, we find that good cause for an extension of time to serve process includes, but is not limited to, a showing by the plaintiff that defendant will not be prejudiced by such an extension.
In this case, the Appellant argues that a pending, simultaneous state court action was sufficient justification for an extension.1 We disagree. Simultaneous court actions pending in the Navajo Nation and another jurisdictiondo not constitute good cause for an extension of time to serve process. To find otherwise would be to invite forum shopping between state and Navajo Nation courts.
Forum shopping is particularly damaging in cases such as this one, where a non-Indian litigant attempts to bring, in a state court, an action that is clearly within Navajo jurisdiction. Such action negatively impacts the Navajo govem*251ment’s ability to make its own laws and be governed by them. Williams v. Lee, 358 U.S. 217, 220 (1959). In light of Appellee Tallman’s membership in the Navajo Nation, Appellee Peabody’s extensive contacts with the Navajo Nation, the location of the accident within Navajo Nation territorial jurisdiction, and the presence of a company vehicle in the accident, Navajo adjudicatory jurisdiction in this case is clear. 7 N.N.C. § 253.B. (1995) (giving Navajo Nation courts civil jurisdiction over “[a]ll civil actions in which the defendant is a resident of Navajo Indian Country, or has caused an action to occur within the territorial jurisdiction of the Navajo Nation); Taylor v. Bradley, 6 Nav. R. 147, 149 (1989) (holding that Navajo Nation courts have civil jurisdiction over all persons who cause an action to occur in Navajo Indian Country); see also Williams v. Lee, 358 U.S. 217, 223 (1959) (holding that the state may not exercise jurisdiction if doing so would interfere with Indians’ right “to make their own laws and be ruled by them”); Montana v. United States, 450 U.S. 544, 565 (1981) (a tribe may regulate the activities of non-members who enter consensual relationships with the tribe or its members); Enriquez v. Super. Ct. In and For County of Pima, 565 P.2d 522, 523 (Ariz. Ct. App. 1977) (stating that the state court’s assumption of jurisdiction over a case involving a non-Indian suing an Indian for an accident occurring on a reservation would be an infringement on tribal self government). As such, this case should have proceeded in Navajo Nation courts. By pursuing the state court case, the Appellant made a misplaced attempt at forum shopping.
In cases where litigants feel compelled to pursue their claims in state court and Navajo Nation court, they have valid options on how to proceed. They may serve process for both cases and then ask one of the courts for a trial continuance. Alternatively, they may ask the court for an extension of time to serve process or for a trial continuance. Failing to serve process for the Navajo Nation court case, in the absence of good cause, however, is an error.
IV
The final issue deals with “horizontal appeals” or the power of one trial judge to “overrule” another trial judge and such is discussed here for guidance. In this case, Judge Watchman’s dismissal order effectively overruled the previous time enlargements granted by Judges Bradley and Cadman. Horizontal appeals are strongly discouraged. Navajo common law disfavors second-guessing a decision maker. The decision of a naat’aanii, when made in good faith, is to be respected and followed. Similarly, the word of a medicine man, in propounding the way of things, is to be respected and followed. Our decisions support this principle. In Rico, the trial judge who granted a motion after it had been denied by another trial judge wrote that he was “extremely reluctant to enter an order different than that entered by the [previous judge]. Normally, judges should respect the prior rulings of a judge....” 4 Nav. R. at 177. Accordingly, we establish a presumption in favor of the rulings of the first judge.
*252The issue is closely related to the “law of the case” doctrine. According to that doctrine, “a determination of law once made will be treated as correct throughout all subsequent stages of the proceeding except when the issue is raised in a higher court.” Barron’s Law Dictionary 269. Accordingly, one trial judge cannot overrule another trial judge of equal authority. This rule helps to preserve precious judicial resources and it discourages “judge shopping,” wherein litigants endlessly search for a judge until they find one that will provide them with a favorable ruling.
Sound judicial policy also limits our trial judges from overruling one another. Before a judge overrules another, that judge must malee findings sufficient to overcome the presumption favoring the first judge. As such, overrulings will only be allowed in cases where there is a substantial change of circumstances, where a clear error in the first decision makes the decision manifestly erroneous, or where manifest injustice will result if the first ruling is not overturned. Substantial change of circumstances may include the availability of new evidence or previously unavailable evidence that will more likely than not change the outcome of the decision. Also, a litigant may be entitled to a new ruling where a change of law occurs, such as where this Court construes a statute anew. These circumstances seek to prevent unduly harsh and manifestly unjust decisions.
When one judge overrules another and the issue is presented to this Court, we will examine the merits of the original judge’s ruling to determine whether the second judge abused his or her discretion in overruling the original judge.
V
Despite our conclusion that there was not good cause to enlarge the time within which to serve process, the Appellants actually obtained an extension of time from two prior presiding judges and, in reliance on those orders, faithfully completed service of process. In other words, the Appellants relied upon the validity of the prior orders and, finally, proceeded to serve process. This Court will honor the expectations created by those orders.
Accordingly, and without prejudice to our analysis, the decision of the Tuba City District Court dismissing the complaint is REVERSED. The case is remanded to the Tuba City District Court for further proceedings.
. Appellant also incorrectly assumed that the service of process for the state court case provided sufficient notice to the Appellees for the Navajo Nation court case. However, serving notice for a separate, pending suit does not permit the plaintiff to fail to serve notice for the suit in question. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502679/ | Patchin, J.
This is an action for divorce on the ground of cruel treatment.
The bill avers that in December, 1842, the parties were married, and have lived together as man and wife since that time until a short time before filing the bill. It furiher avers that during said time the defendant has treated the plaintiff with extreme cruelty, as well by using personal violence as by vile and improper language. I am of opinion that the facts charged in thé bill in that respect have been sufficiently proved, and the complainant is entitled to the relief prayed.
The only question remaining, is that of alimony.
It appeal’s that these parties have lived together for more than a quarter of a century upon a farm, and by their combined efforts, each in their proper sphere, have accumulated a small competency. Eighty acres of wild land, heavily timbered, have been cleared and cultivated until the unproductive wood-lot has become a valuable farm, as appears by the testimony in the case. If the defendant, by his own muscle, has caused this transformation to take place, the complainant has been no less instrumental in the same result by her own hard labor to nour*125ish and sustain that same muscle, without which the defendant could have accomplished nothing. It is clear, then, that in the accumulation oí the property in question, each of the parties have contributed equally It is also clear that in the distribution oí the same property each ought to share equally, and that the mere accident of sex should not be considered. When the law in its wisdom makes a distinction of that kind, it is the duty of the Courts to administer it, but when, as in the present case, it is left to the discretion of the Court, it is clearly the duty of the Court to do exact justice between the parties in the particular case, regardless of general rules and regulations handed down from former generations. One-half of the realty is in the name of the complainant and should thus remain, and the defendant should pay the costs of the Court, including one hundred dollars as solicitor’s fee, together with one hundred dollars alimony to the complainant, which will be about an equal distribution of the property between the parties; and certainly the guilty party cannot complain that he does not receive the larger portion. Let the decree be so entered. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502680/ | By the Court,
Patchin, J.
This is a motion for a new trial upon the ground that the Court erred in' permitting the introduction of medical works as evidence on the part of the defefendants, although not objected to. There can be no question that the medical books should not have been admitted. They are, at best, the unsworn statement of a party not present, and not liable to a cross-examination, which might vary, or perhaps entirely change, the meaning and purport of the statement of the author, as applied to the particular case at the bar. Medical writers are by no means a unit upon the various questions of medical jurisprudence. A passage may be found in some work favorable to a particular opinion, which in another may be successfully controverted and overthrown, although not known to counsel or the Court, who are not presumed to be particularly versed in that braneh of science, and, therefore, the counsel should have the opportunity of eliciting from an expert upon the witness stand, that peculiar information which he alone is supposed to possess, and which would be imparted in language easily understood, and not in those technical terms so common in medical books, where even common words are sometimes used in a peculiar manner, distinct from their received meaning in the general use of the language.
But it is claimed by the opposing counsel that the evidence was admitted without objection on the part of the plaintiff, and therefore it is now too late to avail himself of the benefit *136of an en or. That the plaintiff cannot now claim relief as a right, is quite clear ; but I am not prepared to adopt the opinion, that when, in perfect good faith, a question is asked and allowed to be answered without objection, which is afterward ascertained to be error, there can be no relief.
The granting or refusing a new trial is largely in the discretion of the Court. The motion is generally heard and considered with much more deliberation than can possibly be achieved in the haste of a trial ih a nisi prius Court, where questions entirely new to both counsel and Court are frequently raised and bj necessity passed upon at once, without that due deliberation which they would receive in a motion for a new trial.
To adhere strictly to the rule laid down in some of the books, that there can be no relief on a motion for a new trial by reason of error not excepted to during the trial, would, it seems to me, encourage the very cumbersome and embarrassing practice of taking frivolous and unnecessary exceptions, so that upon further examination, if it should be found that an error had been made, their rights would not be lost in regard to it.
Great care should be exercised on the part of Courts that the utmost good faith should be observed on the part of counsel during the trial of a case.
And in all cases of such good faith it is not by any means clear that within a reasonable time it is not too late to correct an error, that justice may be done, either upon a motion for a new trial or otherwise, even though an exception was not taken at the time. • I find myself brought to this conclusion, that there may be cases (of which the case at bar is one) in which an error may be taken advantage of on a motion for a new trial without previous exception being taken. The motion for a new trial is therefore granted with costs to abide the event of the suit. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502681/ | By the Court,
Brown, J.
In this case the Plaintiff brought suit in the Circuit Court, in assumpsit; his claim, with interest, amounting to $148. Pending the suit, the defendant made a payment to the plaintiff, so that at the time the cause was'heard, the amount due the plaintiff' was but $92,94, for which judgment was rendered.
The only question presented is, is the plaintiff entitled to costs'?
“There shall be allowed to the prevailing party costs, &o., Sess L. 1867, p. 84.
The words, “prevailing party,” are to be understood, as referring to those parties entitled to costs, under the unrepealed law. 16 Mich. 484.
“ In all actions for the recovery of any debt, or damages, or for the recovery of penalties or forfeitures,-in the eases, where such actions are not cognizable before a justice of the Peace, the plaintiff shall recover costs.
The plaintiff, in all actions where he shall recover any sum,, if it appears that his claim, as established at the trial, exceeded two hundred dollars, and was reduced by set off, shall recover costs. C L., 1461, Sec. 3, subdivisions 4 and 5.
In the case at bar, the plaintiff does not bring himself within either of the provisions of the above statute. First, the action was cognizable before a justice iff the peace. Second,, plaintiff’s demand did not reach $200, but only $127, and interest, amounting in all, to about $148. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502682/ | By the Court,
Ramsdell, J.
The defendant in the above cause, having been tried and convicted, at the last term of this Court, for the murder of Herbert Field, on the 5th day of September last, and having been sentenced by the Court upon that conviction, to solitary confinement at hard labor in tbe State Prison for life, which sentence is now in process of execution, and two days in the term at which he was convicted not having elapsed between the rendering of the verdict of conviction and the final adjournment of said Court, Ramsdell & Benedict and S. W. Fowler, his attorneys, and John Yan Arman, of counsel, came into Court and made and entered, in writing, the following motion viz.:
*158The People vs. George Vanderpool. The defendant comes and moves the Court to set aside the verdict of the jury rendered in this case, and vacate and annul the Judgment pronounced therein and to grant to this defendant a new trial on the following grounds and for the following reasons:
1. That said verdict is against the evidence and the law applicable to the same.
2. That since the termination of said trial the defendant has discovered new and material. evidence and testimony,, which was unknown to the defendant or his counsel at the time of said trial.
3. That the defendant and his counsel were surprised and disappointed upon the trial by the failure and refusal of George D. Pibbs to testify as he had previously stated to the counsel for defendant, he would testify.
4. That the defendant was disappointed by the unexpected absence of, and his inability to procure the attendance of, several witnesses whose testimony was material ana necessary for the defendant.
'5. That improper and illegal means were resorted to and employed to' influence the minds of the jurors against the defendant, to-wit: a placard was put upon the door of the Court room and a diagram upon the wall of the court room, both of them in such a position as to be seen by the jury, and both of them calculated and intended to convey to the minds of the jury ideas and impressions unfavorable to the defendant.
6. That the officers in charge of the jury disregarded the instructions of the court to keep the jury separate from all intercourse or communication with other persons nor to allow any one to associate or converse with them, but various persons actually did meet and converse with different members of said jury while they were impanneled to try said cause and while they were in charge of the officers.
7. That four of the persons impanneled and who were sworn and actually composed said jury were destitute of one of the qualifications of a juror as prescribed by-law, to-wit: Their *159names were not on any assessment roll of any township or,city ward in the said county for the year 1869.
8. That one of the jurors who composed the jury which tried said cause had previously expressed an opinion upon the merits of said cause, unfavorablé to defendant:
Which grounds are supported by affidavits filed in this ease.
To this motion the people, by Thomas B. Church, Esq., their counsel, interpose objections to the reception or hearing of the motion by this Court, for the following reasons, viz.:
1. Because the right of the respondent to make or to have made said motion is lost; the said respondent having waived and abandoned the same, by not interposing the same between the verdict of the jury and the sentence of the Court.
2. Said motion to be heard requires the personal attendance of the 'respondant in Court, where he now is not; being confined in the State Prison at Jackson, as will be seen from the records and files of the Court, to-wit: By the sentence imposed on said respondent, and the receipt for the body of said respondent, by the Superintendent of said State Prison.
These objections to the motion of the respondent are filed, in the nature of a special demurrer to the jurisdiction of this Court, and must be first considered. Upon these objections three questions arise:
1. Has this Court the right to grant a new trial in any case of felony after sentence ?
2. Has the Court a right to entertain a motion for a new trial in a case of felony without the actual presence of the body of the defendant in Court?
3. Has the defendant waived any of his rights by not interposing his motion for a new trial before the sentence was pronounced ?
Whether the Circuit Courts of this State have the power, independent of any statutory provisions, by virtue of their authority as the highest tribunal known to the laws of the State, for the investigation and finding of facts in issue in a ease at law, to arrest its own judgment and annul its own sentences, *160where those judgments or sentences are the results of its own errors, either in the application of the daw or in the finding of tire facts ; or where it is manifest and clear that injustice would -.■result from its own adjudications, it is not necessai’y in this instance to discuss. Section 6,082 of the Compiled Laws, covers the whole question of jurisdiction raised by these ■abjections, and reads as follows: 11 The court in which th e trial of any indictment shall be had, may, at the same term, or at the next term thereafter, on the motion in writing of the defendant, grant a new trial for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice lias not been done, and on such terms or conditions as the eourt shall direct.” A court cannot by any action of its own in passing sentence, a proceeding wholly in inoitnm so far as the respondent is concerned, deprive him of his right under ihis statute, of coming into court and moving for a new trial, ■. and presenting and urging his reasons therefore. The statute •.gives the defendant until the end of the next succeed ing erm to make his motion, and it makes no exception for any contingency whatever.
The Supreme Court in the case of The People vs. The Judge of Wayne Circuit have decided that a circuit judge in his dis cretion might hear a motion for a new trial notwithstanding it was not made or entered within the time prescribed in the rules, and that, too, auer a bill of exceptions has been settled and a ¡writ of error sued out.
In cases of murder in the first degree the statute prescribes rtbe sentence which the court shall pronounce, but leaves the time when it shall be passed entirely to the discretion of the ■ court. Suppose then that the defendant is found guilty, and . the Judge, in the exercise of his lawful discretion, pronounces the sentence at once, and the very next day new evidence is discovered, which, if produced on the trial, would have entitled him to a verdict of acquittal, would it be claimed for a moment that he was barred from moving for a new trial before the same court, and exhibiting his affidavits to show the evidence discovered in order that the fact as to whether or not he *161had any good grounds for a new trial might be determined a And if he could not make bis motion before the court passing, the sentence, what tribunal could he apply to ? The Supreme Court will only act upon judgments rendered in the Circuit Courts, and will not examine facts until they are found to be true by an inferior court. Therefore, if the newly discovered facts are to be examined and passed upon at all, they must be-passed upon by the Circuit Court.
It wras claimed in the argument that the granting of a new trial after the sentence is without precedent, in any court of competent jurisdiction to grant new trials. But it was not shown that a new trial was ever refused for that reason under a statute like ours, and therefore it is fair to presume that a refusal to hear the motion would be equally without precedent. Precedents are established when the necessities of justice require them, and are followed for the same reason. But a qüain provision of the. statute r< quires no precedent to give it effective force, and the objection to the entertaining of the motion for this reason is not well founded.
2. Does it require the personal attendance of the prisoner in court before the motion can be heard ? I think not. When the motion to be heard is by the attorneys for the prisoner, and is designed for his benefit, and cannot injuriously affect his rights, I see no good reason why the prisoner should be required to be present in court.
3. Has the defendant waived his right to be heard on this motion by not interposing th.is motion before sentence ? The rule» of practice require that when a special motion is made, the reason upon which it is founded shall be set forth. When the prisoner was sentenced the 2d, 6th, 7th and 8th reasons set forth were unknnwn to him or his eouhsel, and therefore couM not have been heard upon any motion for a new trial, made, at, the time. Under section 6,082, already quoted, he was entitled't® wait and pursue his efforts to discover more testimony until the the last day of the present term before making his motion, even though he had discovered all the facts mentioned in the motion before the sentence was pronounced.
*162The next question is whether the reasons set forth in the motion are all, or any of them true.
1. Was the verdict against the evidence in the case and law applicable thereto!
I find from the proceedings of the case, the statement of the Prosecuting Attorney in opening the case to the jury, and the evidence produced on the trial, that in order to establish the hypothesis of the prisoner’s guilt with sufficient certainty to warrant a conviction for murder in the first degree, the following evidential facts should have been established in evidence beyond all reasonable doubt:
1. That Herbert Field was murdered by some one.
2. That he was murdered in the Bank of Manistee, between the hours of 11 a. m. aud 12 m., on the 5th of September last.
5. That the defendant had sufficient motive for, and an opportunity, of killing Field at that same time aud place.
4. That the defendant had the means wherewith to convey the body to the month of the Manistee River aud anchor it there.
5. That the currents of Lake Michigan took the anchored body from the mouth of the Manistee River to a point on the shore of Lake Michigan twenty miles below.
6. That the defendant attempted to destroy evidences of the murder under circumstances which precluded to a reasonable certainty the probability of his being ignorant of their being such.
The first of these evidential facts I find was clearly established by the proofs.
Unon the second, I find the preponderance of evidence was against the hypothesis that the murder was committed at the Bank of Manistee between the hours of 11 a. m. and 12 m., on the 5th day of September last.
Upon the third, I find the motive or apportunity to kill Field at that time was not proven beyond all reasonable doubt.
Upon the fou:lh, I find there was no evidence to show that the prisoner had any means of conveying the body from the bank to the mouth of the Manistee River, and I find further *163that there is a reasonable doubt of his being able to take the body from the bank to the mouth of the Manistee River and anchor the same and return during the time elapsing between the time he left home and the time he called at Dr. Fisher’s.
Uupon the fifth, from the perfect preservation and unabraded condition of the boty when found, and the testimony of the physicians as to the time it had been exposed to air, I find there are grave doubts as to the current oj Lake Michigan having taken the anchored body from near the mouth of the Manistee River to the point where it was found.
And upon the sixth evidentiary fact I find that there is no evtdence to show that the property destroyed was of any particular value to the prisoner, or to show that there were evidence of crime upon it.
I therefore find from a careful consideration of the pleadings and the whole evidence in the case, that there is not only a reasonable doubt of the prisoners guilt, but of a fair presumtion of his innocence, and that the verdict was against the evidence in the case and the law applicable to the case.
Upon the second reason set forth in the motion, I find that there is no affidavit on file indicating that the matters contained in the affidavits of Mary Loyd and Mrs. Hagadorn were newly discovered, and for that reason they cannot be taken into consideration. The reception and consideration of the affidavits of Embree Lott, Wilber F. Lott, and Edward Hall, is objected to by the prosecution, for the followfing reasons :
1. That thsy are not supported by the affidavit of George Vanderpool, alleging that \$he statements thereit contained were unknown to him at the time of the trial.
2. That they are merely cumulative.
As to the first point, I do not consider the affidavit of the prisoner indispensable to reasonably establish the fact that the evidence offered was unknown to him at the time of the trial. He appears to have gone into custody on the Wednesday after the disappearance of Field, and to have been closely confined ever since, and he is now in the penitentiary in execution of the sentence imposed upon him. His affidavit could only be *164obtained by the special favor of the officers having him in charge, which might or might not be obtained. His counsel show bytheir affidavits that they were employed at an early day, and that the evidence was unknown to them at the time of the trial, and they believe it to have been unknown to the prisoner. While in motions for the new trial the affidavits of the prisoner is desirable it is not always indispensable, and in this case-is sufficiently excused. I, therefore, find the fact to be that the evidence offered by the three last named persons is newly discovered, and was unknown to the defendant at the time of the trial; of its materiality, there is and can be no question. If Field was alive as late in the afternoon of the 5th of September last as indicated in the testimony contained in these affidavits, then the innocence of the prisoner would be, and must be, clearly established.
But is this evidence cumulative, and,therefore inadmissible ? I think not. The prosecution, on the trial of this cause, made it an issue that Herbert Field was murdered in the bank between the hours of 11 and 12 a. in., on the 5th of September last. To meet this issue, the defendant produced witnesses to prove that the bank door was open in the afternoon of that day, from which it was inferred that Herbert Field was still alive, and other witnesses who testified that they saw Field in the streets on the afternoon of that day at designated times and places. In respect to the evidence that the bank door was ojien, the testimony of witnesses who saw Field in the afternoon is cluarly not cumulative in the sense in which that word is used in law. They are all facts which tend to destroy the proposition that Field was murdered before noon ; but these facts, are of a different kind, and cumulative evidence is denied to be additional evidence of the same kind, though I should define it to be a surfeit of evidence on a particular point, as with this definition the rules requiring its exclusion agree more with reason and justice than with the other. In reference to the testimony of Mrs. Springer and others, who testified that they saw Field in the afternoon,-it is not cumulative, for they saw him *165at a different place and at a different hour, the facts are different, although they establish the same conclusion, viz.: that Field could not have beeii murdered before 12 p’ m. of that day.
In the case of Chatfield vs. Lothrop, 6 Pick., 417, cumulative evidence was defined to be such as tends to support the same fact which was before attempted to be proved. The evidence offered not being of the same fact, but or a different fact with the same logical bearing, under this definition, cannot be considered as cumulative.
But under this definition the rule that a new trial will not be granted on merely cumulative evidence; is not of universal application. Such evidence will not be refused if it will make a doubtful case clear. G. and W. on new trials, 1,063, and this evidence, if found true (and being uncontradicted and not incon sistent in itself for the purpose of a motion for a new trial, it must be taken as true), must have precisely that effect.
This newly discovered evidence will make plain that which was doubtful before, and to neglect it in such a case would be grossly contrary to the ends of justice, whose rules are as much established for the protection of the innocent as for the punishment of the guilty.
Upon reading the affidavits of Messrs. Fowler and Rams-dell as to the conduct of George D. Phibbs, I find the facts set forth in the third reason to be true, and upon reading the affidavits of Mr. Fowler and Mr. Ramsdell concerning the witnesses Wilcox and Adams, I find the facts set forth in the fourth reason to be true.
Upon the fifth reason stated in the motion, I find that after the jury were sworn, the prosecuting attorney proceeded to read the information and state the case to the jury, in which statement, among other things, he informed the jury he should be able to prove that on the Wednesday after the 5t(i day of September last, large spots of blood stains overspread with ink were found upon the bank floor. I find further, that afterward and during the early part of the trial, one David D. Ingram, without the knowledge of the Court, did clandestinely bring *166into the court room, and hang upon the wall at the left and rear of the judge, and at the right and front of the jury,' and in full view of the whole panel, a diagram purporting to represent the interior of the bank on Wednesday, the 8th of September last, and among other things, to represent the large spots of ink covered blood-stains mentioned by the prosecuting attorney as having been found upon the floor of the bank on that day, to which diagram the prosecution called the attention of the jury by asking the said Ingram if the diagram was an accurate representation of the interior of the bank on the 8th of September, and which diagram was calculated to convey to the minds of the jurors false impressions and ideas unfavorable to the defendant; for the reason that I find from the evidence of Dr. Duffield, who examined those spots with a thousand-power microscope, that there were no blood stains found-upon the surface of the floor under the ink spots that were found thereon.
Upon the sixth reason,.on reading and considering the affidavits of Simeon Anderson and James M. Allen, I find the statements contained in said reason to be true.
Upon the seventh reason, I find from the affidavit of E. E. Benedict that the naipes of four of the jurymen who composed the panel that tried the said defendant were not on the assessment roll of any township or ward in the County of Manistee for the year 1869.
On the part of the defense, it is insisted that one of the requisite qualifications of a juror is that his name shall appear on the assessment roll for the same year; that this provision is a quasi property qualification; that the defendant has an indefensible right to be tried by a jury solely selected from that class whose names are upon the assessment roll. On the part of the people, it is maintained that this provision of the statute requiring jurors to be taken from names on the assessment rolls is- merely directory, and a disregard for it is not an error; and, also, the order of the Court commanding the sheriff to summon one hundred good and lawful men, was substantially complied with when he summoned one hundred men irrespdc*167tive of their names being upon the assessment rolls; and that a jury drawn from that number are not objectionable because their names did not appear.
The first question is, what constitutes a lawful juror ? The statute in reference to the return of jurors says: “ The said officer shall proceed 'to select' from the persons assessed on the assessment roll of the township or ward, for the same year suitable persons having the qualifications of electors, to serve as jurors,” etc. It afterward says, that in making such selection they shall take the names of such only as aie not exempt,etc.
The statutory provision directs the officers from what source they are to obtain the names .of jurors, and that in making their selection from that source they are to use care in selecting good men. They have no discretion as to where they shall obtain the names of the jurors to be returned, and can only use their discretion as to the particular names to be selected from that source. I do not consider that it becomes important to discuss the reason of the statute; it is sufficient that it exists. The term lawful persons, used in the crder of the Court, can refer only to persons possessing the qualifications of jurors regularly summoned. The defendant has a right to demand the extension of its full requirements, and if the officers of the law fail to do this, it is an error. I consider the reasoning of the Supreme Court in the case of Hill vs. The People 16 Michigan Reports, in reference to aliens as jurors, of equal pertinence and force in this case. The provision of the statute is inexorable, and cannot be ignored by the people or waived by the defendant.
Upon the eighth and last reason contained in the motion, from the affiavit of James M. Allen, Robert Green and T. J. Ramsdell, I find there are reasonable doubts as to the qualifications of the said Robert Green to sit as a juryman on the trial of said cause.
Therefore, in consideration of the whole matter, presented to the Court for examination on the motion before me, and the argument of counsel on the same, it appears to the Court that on the trial and cqnviction of the said defendant, George Van*168derpool, for the murder of Herbert Field, in the Bank of Manistee, on the filth day o'f September last, that justice has not been done, and that the verdict against the defendant and the judgment and sentence pronounced and passed thereon was unjust to the defendant and erroneous in luw, and that the said -verdict ought to be set aside and the jngment and sentence pronounced and passed thereon, annulled and held for naught, and a new trial accorded to the defendant.
It is therefore ordered and adjudged that the verdict rendered against the defendant in this Court, on the 25th day of February last, be, and the same is hereby set aside, and the judgment and sentence pronounced and passed thereon against the defendant, George Van derpool, be, and the same is hereby fully vacated, annulled and held for naught. And it is further ordered and adjudged that, the said defendant, George Vanderpool, be tried anew upon the information filed against him in this Court. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502683/ | *174
By the Court,
Patches J.
This is a bill in Chancery, filed for the purpose of setting aside and having delivered up a certain mortgage and notes claimed to have been given by complainant to the defendants, Kellogg and Richardson, in payment for a certain patent right, on the ground that the patent was invalid and void.
The act of Congress of July 4, 1836, provides as follows:
“ That all actions, suits, controversies and cases arising under any law of the United States, granting or confirming to inventors tne exclusive right to their inventions or discoveries shall bé originally cognizable, as well in equity as at law by the Circuit Court of the United States or any district court having the powers and jurisdiction of a circuit court.
That the effect of'this act is to confer upon the Federal courts exclusive original jurisdiction of suits in equity involving the validity of patents has not, I believe, been questioned by any well considered case arising since its passage. Gibson vs. Woodworth, 8 Paige 132; Dudley vs. Mayhew, 3 Comst., 9.
It is, however, urged on the part of the complainants, that the State courts still assume jurisdiction to pass upon the validity of a patent right whenever it arises in a case collaterally, and to this a large number of cases were cited at the hearing. In my examination of this question, I have carefully studied all of these cases and many others. But, with the exception of one, which I shall hereafter notice, I have been unable to find any in which a State court has entertained jurisdiction of a suit brought for the purpose of having a patent right declared void, as a basis for affirmative relief. In nearly every case the question has arisen collaterally as a matter of defense, and even then has been generally passed upon without objection or discussion. I apprehend that this fact may, in a great measure, account for the large- number of authorities sustaining jurisdiction of State courts in cases in which the question of the validity of a patent arises by way of defense. Without considering the weight of authorities upon this subject, I am at a loss to see how a well considered adjudication, in view of the statute above referred to, could possibly hold that a State court had jurisdiction to try and determine any case involving the validity of a patent *175right, either directly or otherwise. It seems to me entirely clear that no careful and intelligent State court would attempt or desire to assume jurisdiction of a quéstion which can only arise under and by virtue of a United States law, especially when that law itself, in terms so explicit, confers exclusive jurisdiction on another tribunal. In one of the more recent cases it was held that the courts had no jurisdiction to inquire into the validity of a patent right, even when it arises as a matter of defense — 40 Maine, 430. The case before referred to as sustaining the present bill inits prayer by affirmatory relief is in 11 Ohio, 162. As an authority, this case is entitled to hut very little weight, for neither the counsel nor the court make any reference to the jurisdictional question, and it does not seem to have occurred to them that it was involved in the case. Clearly, in the consideration of the-points involved, the substance of the case was overlooked, and the shadow embraced; whereas, had it, received that careful and full consideration which all courts ought to give questions of this nature, the objections to entertaining jurisdiction undoubtedly would have appeared so substantial and clear as to have led the court to an entirely different conclusion.
It was asserted by counsel at the hearing, but without any extended argument, that Congress does not possess constituional power to deprive the State courts of jurisdiction of such ^questions, and hence that the act of 1836 is void.
I have no question as to the validity of the act. It seems to me entirely clear that Congress not only possessed authority but it is their absolute duty, in some manner, to exercise it so as to preventthe many wrongs that would be sure to flow from the assumption of jurisdiction by the State courts, of questions of this nature. The decree of the State court against the validity of a patent right, though pronounced by the court of last resort, and binding upon the parties to the suit, would not settle the question; for, notwithstanding such judgment, the Federal courts might declare the same patent to be valid, and thus the anomaly be presented of a party deprived of his property by erroneous judgment of a court of last resort in reference to the character or status of a thing which settles nothing beyond *176the rights of the immediate parties to the suit. Thus, in the case at bar, should the complainant succeed and the patent be declared void and the mortgage and note be delivered up, it would be entirely competent for the Federal courts to pronounce the same patent valid, and we should have the singular spectacle of a patent possessing those peculiar qualities so as to be void as to one suitor and valid as to another. On the other hand, a decree of the Supreme Court of the United States as to the validity of a patent settles the question with everybody. It is the settled policy of the law that every one is entitled to his day in court, but it does not therefore follow that because he is subject to the laws of the State he must be heard in the State courts; for he is also subject to the laws of the United States, and may, with equal propriety, be heard in the Federal courts, especially, in matters arising under the laws of the United States.
The people of the States are like the people of the United States. Their interests are identical. Withdraw the one and the other has vanished.
It is quite immaterial in what particular forum the litigant seeks to redress his real or imaginary wrongs, so that one of competent jurisdiction is open to him. His rights will be equally protected in either.
I have no sympathy with that party spirit of jealousy, seel frequently in legislative bodies, and sometimes even in the judiciary, which is blind to every consideration, either of logic or sense, that may, by any possibility, make against its own preconceived political theories. It is the highest duty of the judiciary to rise above this, as it is its glory that thus far, in the history of our country it has generally been enabled to do so. That politicians, who often seem to imagine their own individual interests paramount to those of the public, should sometimes be- found antagonistic to the best interests of society may not seem so strange, but when the judiciary so far forgets its duties as to be influenced in the slightest degree by any expectation of personal or political advantage, or, indeed by any other than a desire to fearlessly and impartially administer justice for the *177sake of justice itself, the last anchor to our institutions will have been loosened, and we may well- feel alarmed for their safety.
Being clear in the conviction that this Court has no jurisdiction in this case, I must direct the register to enter a decree, dismissing the bill of complaint with costs. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502684/ | By the Courts
Patchin J.
This is an action for damages against the company on account of the plaintiff’s expulsion from *178their ears, which he averred to have been done at a distance from any dwelling or usual stopping place. All the counts in the declaration allege him to have been a passenger who had complied with all the conditions required to entitle him to be carried to the end of his joiiruey. The plaintiff is a resident of Canada, and the defendant’s road extends from the Suspension Bridge, in Canada, to Detroit. The case was tried in this Court, and a verdict rendered for the plaintiff, on the ground, among others, that the plaintiff was put off the cars not near a dwelling or a usual stopping place, in accordance with a statute law of Canada The case was then taken to the Supreme Court, and by that Court reversed, for the reason that, under the declaration, plaintiff could not avail himself of the provisions of said statute! The plaintiff now comes into court and asks to amend his declaration by striking out all that part relating to the place of the putting off. The Supreme Court in commenting upon the case, says : “ There can be no doubt that the locality of the trespass does not of itself oust the jurisdioion, when the court has lawfully obtained control over the parties. But when the parties are not residents of the United States, and the trespass was committed abroad, the right of action in our courts can only be claimed as a matter of comity, and they are not compelled to proceed in such oases. A^e think that when, upon the trial or by the pleadings, it appears that our tribunals are resorted to for the purpose of adjudicating upon mere personal torts committed abroad, between persons who are all residents where the tort was committed, the inconveniences and danger of injustice attending such controversies render it proper to decline proceeding further. The cases cited on the augument recognize the right to take this course, and we regard it as the correct one. By common law originally, all actions were local, as every fact must be tried by a jury of the vicinage.
“ This, however, being not a statutory regulation, but a principle of unwritten law, whioh is really human reason applied by courts, not capriciously, but in a regular train of decisions, to human affairs for the promotion of the ends of justice, according to the circumstances of the nation, the necessity of *179the times and the general state of things, 'was thought susceptible of modification, and the courts have modified it.”
And it is now well settled law, that the right of action, founded upon personal torts, is not confined to the vicinage. And yet in my investigations of this subject, I have been forced to the belief that very great difficulties will hereafter arise in the enforcement of this rule by the courts. When our forefathers came to this country, they brought with them the common law of the mother country, so far as it was applicable to their new condition, and have continued to adhere to it certainly with sufficient pertinacity. But how very few of those rules and regulations, applicable to the then condition of this country, confined to a few feeble settlements scattered along the Atlantic coast, with an almost unknown and impenatrable wilderness in the back-ground, filled with subtle, implacable savages, andstruggling for its very existence, fearing annihilation from every quarter, poor in all that gives a nation strength and power, can possibly be applied to America to day. Those settlements have expanded and spread out over the whole extent of this country, from the Atlantic to the Pacific; the wilderness has disappeared, and with it its savage inhabitants, until to-day he scarcely possesses sufficient vitality to serve as a counter irritant to distract the attention of the country from any real danger; rich in everything that makes a nation powerful and strong, fearing and having nothing to fear, save its own power. It cannot be the duty of the courts to follow implicitly precedents founded upon conditions so entirely different. It is not the duty of anybody to attempt to clothe a giant in the habiliments of a pigmy 1 Men and things must be looked at and grappled with as they are and not as they have been nor, indeed as they will be. Judging from the past it is quite possible that courts of justice may be conducted by means of electricity with thousands of miles intervening between the court, the witnesses and the jury, and even the eloquence of counsel be received through the same medium, but the rules of evidence of to-day would be of but little service to them.
The learned Dr. Lieber, in his work on legal hermeneutics, defines a precedent in law to be a decision arrived at by a com*180petent tribunal after a patient inquiry into all the points bearing upon the subject decided, and says : “ If we are convinced after patient inquiry, which includes a thorough knowledge of the subject-matter, that W6 ought in justice to deviate from the former decisions, we do wrong to perpetuate it.”
The country has just begun to grow by means of those wonderful agencies, electricity and steam. It is free from any apparent internal or external danger, and hence the courts should scrutinize closely every proposition of law submitted to them, that they may be sure to give proper tone and direction to precedents, which will inure to the best interests of society, as it exists to-day. And while I do not shrink from the limited responsibilites in that regard devolving upon' me, as a court of nisiprius, yet I am led to approach them with very great care and caution, for I apprehend there is danger of following precedents, not at all applicable to the changed and changing condition of affairs. The great thoroughfares of the times, both of thought and more substancial freightage, are increasing with great rapidity, and the public demand this increase as is witnessed by the thousands of dollars donated by them almost every day to these enterprises. They cannot be given up. The public interests and prosperity are too closely connected with them. The commercial law has in a great measure grown up and been founded upon the high sea’s, and there were many reasons why a court should assme jurisdiction of a cause o action occurring either in a doubtful or entirely without the jurisdiction of any court. The thoroughfares were not at all times the same, perhaps visiting any given jurisdiction but once, therefore it was extremely difficult, and some times impossible, to obtain service of process. But now it is marked by clear and distinct lines, from which it never deviates, passing through well defined jurisdictions at regular intervals and over entry of which it always remains subject to service of process. Can it be claimed that rules and regulations applicable to the former can be to the latter ? It seems to me clear that to ask the question is to answer it. I am forced to believe that all actions of torts, at least when the defendant can be served with process, *181should be confined to the locus in quo they were committed, and I apprehend it will be a grave question hereafter whether other actions will not be classed in the same category.
It is sufficient in the case at the bar to say, both parties being residents of a foreign country when the tort was committed, the case ought to be heard in this court.
The motion must therefore be dismissed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502685/ | By the Court,
Patchin, J.
It is conceded that the judgment on which the execution in question was issued wasinvalid because of the irregular adjournment, but it was claimed by the counsel for defendant that the judgment could not be attacked collaterally, and I so held in the trial before t.he jury.
The case in 1 Douglass, I think settles the question conclusively, that when the justice has not jurisdiction to render the judgment it may be attacked collatteraily. Therefore the refusal to charge the jury as requested was wrong, and the motion for a new trial must be granted. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502686/ | By the Court,
O’Grady, J.
The statute authorizes the electors at the annual township meeting to vote a tax of not exceed, ing two hundred and fifty dollars for the improvement of roads and bridges in the township. Comp. Laws,, p. 341, § 994. This is to pay .the expense of improvements deemed necessary on roads and bridges, over and above the labor to be assessed in that year. Ib. § 993. And it is to be levied and .collected in the same manner as other township monied expenses, § 994.
Other township expenses are levied and collected as follows:
1. The Township Clerk on or before the 1st day October, in each year is to deliver to the supervisor of his township (or ward if in a city) a certified statement of all monies proposed to be raised therein by taxation, together with a statement of the aggregate amount thereof, to be by the supervisor delivered to the county clerk on or before the second Monday of the same month, to be filed in his office, and laid before the Board of Supervisors at its annual meeting, (Sess. L. 1869, p. 336, § 26.)
2. After equalization of the rolls, and apportionment of the State and County taxes, the County Clerk delivers certificates of the amounts apportioned to be assessed on the property of each township for State, County, Township, fractional school district and other purposes, to the supervisor of the proper township or ward. Id. § 32
3. The supervisor proceeds to assess the taxes for the *222amount specified in such certificate according to and }n proportion to the individual and-particular estimate and valuation specfied in the assessment roll.for the year. Id. p. 339.,. §33.
The township is divided into road districts, C. I., p. 340, § 991, bat it is insisted by the plaintiif that by the charter, the village o+ Houghton is a separate road district, and hence not liable to pay any part of the expense of improvement of roads and bridges outside oí the village. This does not follow. The Commissioners of highways, may levy a highway tax in the several road districts, not exceeding one days Labor for each $100 of valuation besides thé poll tax — O. L., p.. 347, § 1017, to be worked out within the respective districts, for which the same is levied, and if not worked or commuted, it is-to be returned to the supervisor who levies the same on the delinquent property, and to be collected like other, taxes and expended in the district where the same was assessed. G. L., p. 352, § 1038.
In case these taxes are not deemed sufficient, § 993 & 994 > provide tor making up the deficiency by a general tax upon the whole property of the township, which may be all applied in one or more of the road districts, but without-regard to the districts in which it was raised.
The Highway law, and the village charter, taken together, constitutive the law as applied to this case — under the charter the Common Council have power to levy a tax of hot exceeding one-half of one per cent for a highway tax.aiid a ppll tax not exceeding $1,00 on each inhabitant not exempt, Spss: L., 1867, vol. 2,'p. 1092, § 24, for'streets within the village, to be expended under the direction of the village authorities, and the commissioners may levy taxes in the several road districts outside of the village, within the limit,s prescribed in C. L., p. 347, § 1017, to be worked out on the streets under the direction of overseers of highways for. the respective districts.
In case there should be a deficiency either in the village or in the road districts, a general tax may be levied on the property of the township, under § 994. This tax may .be laid out in such part of the township as the Commissioners of Highways may direct — there being no restriction in that respect — either within or without the village, or both. If within the village, *223probably under the direction of the Common Council or street committee.
Unless, ¡then, the village of Houghton is distinct from and not a part of the township of Portage (which it is not) the property in the village is liable for this as all other township taxes.
But § 53, of the charter, Bess. L., 1867, vole 2, p. 1109, provides that the inhabitants of the village are liable to the operation of all township laws, except as otherwise provided in the charter' — and moreover, the electors of the village are also electors bf the township, and voted on the raising ofthe very tax in question.
The tax is a general, township tax,for the benefit ofthe township, and must be levied eque. laj on all the pi operty of the township — Laws of 1869, p. 339, § 33; C. L., p. 341, § 994; Constition, Art. 14, Sec. 11; O’Kane vs. Treat, et al., 25 Ill., p. 557.
Judgment must be for the defendant. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502687/ | By the Court,
Mitchell, J:
The most important question raised by the demurrer, is whether the alleged adverse claims-are sufficiently set forth. The bill does not state under what title or supposed right any of the defendants claim, except that the minors claim as heirs of Harriet E. Brown.
*297So far as the bill shows, the supposed cloud is a mere naked assertion of claim, without any' foundation whatever. It does not show that John Mitchell claims as heir of Joseph Mitchell, nor in any manner allude to the nature of the claim he sets up. The other defendants are stated to claim as heirs of Harriet E. Brown, but what claim she had is not stated.
I think this is not enough — there must be something stated to show, to the Court that there is a claim that in .some way constitutes a cloud. A mere claim without foundation, cannot constitute a cloud requiring the aid of this Court to dispel. The adverse cloud should be so pointed out and described as to inform the Court of the necessity of its interposition.
“ In order to justify the interposition of a court of equity to remove a cloud from a title, the cloud must be appárantly good against the title for which the relief is sought.” Gamble vs. Loop, 14 Wisconsin, 465.
But for aught that appears in the bill, the defendants may have the true legal' title, and in that case a court of equity ought not to interfere to prevent its operation in a court of law, and so deny the parties the right of trial by a jury.
“ Where there is an outstanding legal title adverse to the actual pqssession, courts of equity only interfere when the adverse claimant neglects or refuses to proceed at law to have*the title determined.”
The bill states that John Mitchell not only sets up his claim but intends to and will sue at once to determine the title unless restrained &e.
In Stockton vs. Williams, Walker’s Chancery Report, 126, Chancellor Manning said “ The object of the statute(Laws of 1840. the same as Sec. 3490 of Comp’d Laws,) seems to be to enable a person in possession of réal estate and having a title thereto, to remove all doubts in regard, to his title arising from the claims of third persons, who are taking no steps to test the validity of their claim, either in law or equity, and who (by their refusal or neglect to institute proceedings for that purpose, keep the. party in possession in a state of suspense.
This is the extent, I think to which the Court should go «ader the statute.
*298In Moran vs. Palmer, 13 Mich., 370, Judge Cooley, in giving the opinion of the Court, says; The claimant of a legal title has a right to have the facts upon which his claim is based, submitted to a jury, and it is only when the remedy at law is inadequate, that'resort can be had to equity. Nothing is better settled than that equity will not aid in clearing a title to land where complainant's remedy at law is complete.”
TheseTviews of Chancellor Manning and of the Supreme Court, seem clearly to determine that it is not within the per- . view of the statute for this Court to entertain'a bill to restrain a claimant from doing the very thing, the not doing of which, would be a good ground for relief and the exercise of equity jurisdiction.
The bill in this respect asks the Court to restrain a party from persuing his legal rights and doing what the courts always encourage, i. e., testing in the proper courts and before a jury, mere legal claims and rights, that do not involve any question of fraud or other matter that cannot most properly be settled in a court of law.
Upon the suposition that John Mitchell claims as the so» and heir of Joseph Mitchell, this Court is called upon to interpret the granting clause in the will and to determine whether it conveyed an estate in fee to Emily Mitchell, or a limited, divided estate.
In considering this question, I think the Court bound by the same rules it would be in construing the granting clause in a deed. “ A doubt as to the legal construction of a deed is not a cloud on a title that a Court of equity can be called upon to clear away. — Brown vs. Austin, 35 Barb., 431.
The complainant in her bill «ays she is the legal owner, and so leaves no doubt for the Court, and nothing for the Court to do to make her title more perfect. A legal title would seem to be all that can be wanted, and she needs no aid to remove u» imaginary cloud.
The bill however leaves an implied question, that is alluded to, as it may possibly aid in determining the necessity of further litigation.
*299John Mitchell and Harriet E. Brown are said to be children of Joseph Mitchell. If born before the will was made, they' would have no rights to the land unless provided, for in the will.
If born since the will was made, no provision having been made therein for them, they have, under the provisions of Sec. 2849, of Comp’d Laws, the same share in the estate of the testator as if he had died intestate, and in that case the will to the mother had no effect as to their shares or portions and the will would not be a good source of title against them, “unless it shall be apparent from the will that it was the intention of the testator, that no provision should be made” for them.
The demurrer is sustained with costs, with leave to complainant, if so advised, to amend in ten clays from filing thereof. Otherwise., decree of dismissal. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502688/ | By the Court,
Patchin, J.
This is an appeal case brought to this Court by the defendant, who succeeded therein, and was awarded costs, and the question now arises as to the amount which tbe defendant appellant is entitled to tax.
The law of 1863 provides that “whenever a payment shall &e rendered by a justice against any party, unless otherwise provided, it shall be with costs of the suit, but the whole amount of all the items of such costs shall not exceed six dollars in all suits npon contract, and in all other cases the whole amount of such costs shall not exceed ten dollars."
The action in this oase not being upon contract, the prevail, iag party had a right to tax the ten dollars which the appellant was compelled to pay in order to effect an appeal.
In the C. L., Sec. 3864, it is provided that “ whenever costs are awarded to the appellant he shall be allowed to tax as part ¿hereof the fee paid to the justice.” Under this provision it has always been the practice to tax as part of the appellant’s costs in this Court the whole amount paid the justice in order toperfeet the appeal, so that in the case under consideration the appellant would have the right to tax the amount of ten dollars paid the justice, as the costs in the case, together with the amount paid him for making his return.
The Laws of 1869, page,33, provide: That in all oases the party prevailing in the Circuit Court may tax, in addition to *304’ other costs, such costs as he would have been entitled to tax had he prevailed in his action in the court below.
It is claimed by the appellant that under this law: he is also, in addition to the ten dollars paid by him in the Court below, entitled to tax such other costs as he would have been enltitled to tax, had he succeeded therein, up to the amount oí ten dollars.
It is claimed by the appellee that the appellant is confined to the costs actually paid the justice. But it is quite clear that the costs paid the justice were not those which the appellant would have been entitled to recover had he succeeded, but those which the appellee claimed by reason of his succeeding in that Court. It follows, therefore, that the costs referred to in the Laws of 1869 are something more than those paid the justice, and that the statutes taken together plainly allow the appellant to.tax as part of his costs in the Circuit Court, both the amount pa d the justice on the appeal and those costs which he would have recovered had he succeeded in the Court, below. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8488752/ | Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
22-NOV-2022
07:59 AM
Dkt. 4 ODDP
SCPW-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
JONAVEN MASON, Petitioner,
vs.
THE HONORABLE KEVIN A. SOUZA,
Judge of the Circuit Court of the First Circuit,
State of Hawaiʻi, Respondent Judge,
and
STATE OF HAWAIʻI, Respondent.
________________________________________________________________
ORIGINAL PROCEEDING
(1CPC-XX-XXXXXXX)
ORDER DENYING PETITION
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)
Upon consideration of the petition for writ of
mandamus, prohibition, or other extraordinary writ, filed on
November 4, 2022, and the record, an extraordinary writ is not
warranted. See Deangelo v. Souza, No. SCPW-XX-XXXXXXX, 2022 WL
17019503 (Haw. Nov. 17, 2022); Kema v. Gaddis, 91 Hawaiʻi 200,
204-05, 982 P.2d 334, 338-39 (1999). Accordingly,
It is ordered that the petition is denied.
DATED: Honolulu, Hawaii, November 22, 2022.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
2 | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502689/ | By the Court,
Patchin, J.
This isa bill in chancery filed for the purpose of compelling the administrators of the estate of Joseph Campau to submit to this Court their entire accounts, as such administrators, and that such accounts be settled and a receiver he appointed, to the end that the estate of the said Joseph Campau may be fully and finally closed.
A motion was made by the complainant to amend the bill so as to ask for the removal of said administratoi».
This motion is opposed by defendants upon tha ground, among others, that this Court ha* no jurisdiction.
This estate ha* been in litigation for a number of ’years, dur*305ing which time various questions arising in it have been adjudicated upon both in this and the Supreme Court. The amount involved is very considerable, and it is of the utmost importance to all parties concerned that every proceeding should be well considered, and of such a character as to avoid the necessity of being set aside, so that the end of this controversy may be finally reached. I have therefore devoted considerable time and labor to the examindtion of the question of jurisdiction of Courts in Chancery and fhe Probate Courts under our laws in this regard. While Courts in Chancery have often assumed jurisdiction over infants and guardians, administrators, so far as I have been able to find; have always been left to the Court of Probate, except in special cases for reasons set forth in the bill.
The Supreme Court, in passing uupon one of the questions above alluded to, uses this language: “I am very strongly inclined to the opinion that under our probate system the Court of Chancery has only jurisdiction in those cases in which an adequate remedy does not exist in the Probate Court.” 11 Mich. 404. With this clear and concise language before me, I do,not feci at liflerty to assume any of the duties of the Court of Probate, without first being entirely clear that the case at bar does not come within the'meaning of the suggestion there made.
The motion must, therefore. beNenied, and the bill dismissed for want of jurisdiction. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502690/ | By the Court,
Patohin, J.
This is a petition to remove the cause to the United States Court, on the ground that both defendants arenow non-residents, under the law of Congress, approved March 2, 1867, which provides that “ when a suit is now pending or may hereafter be brought in any State court in which there is controversy between a citizen of the State in which the suit is brought, and the citizen of another State, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of. costs, such citizen of another State whether he be plaintiff or defendant, if he will make and file in such State court an afiidavit, stating that he has reason to and does believe that from prejudice or local influence ho will not be able to obtain justice in such State court, may at any time before the final hearing or trial of the suit file a petition in such State court for the removal of the suit”; and by a prior law, upon the party presenting a petition, accompanied by a sufficient bond, it is made the duty of the State court'to accept the surety and proceed.no further in the cause.
At the commencement of the suit the defendant Dickinson was-a resident of the State of New York, and the defendant Hodges, who is jointly liable as well as equally interested, was a resident of the City of Detroit, and within the jurisdiction of this Court, and remained so until the pleadings had been put in and the case placed upon the docket for trial for several terms, at some of which it was continued upon the motion of said Hodges. Afterward he removed to the State of Illinois, where he now resides.
The case has been once tried in this Court, and a new trial or dercd by the Supreme Court, pending which this petition was filed. It will be seen that the law as it stands seems to intimate that no matter that a State court has acquired jurisdiction in the proper manner, and exorcised it correctly almost to the close of the ease, yet the defendant, finding that he is about to be defeated, may by filing the required affidavit (and it is not at all unusual for a defeated party to imagine that great injustice has been done) not only take away the *8properly acquired jurisdiction of the State court, but to compel the United States Court to assume it without the consent of either.
But how much the well known rulings of the courts on this subject', together with the presumption that Congress always intends to pass wholesome and proper laws; will militate against this construction, is not necessary to consider in this case, for it is conceded that at the time of the commencement of the suit it could not be brought in the United States Court, the defendant, Hodges, being a resident of .this State. At that time, clearly, the jurisdiction of this Court was complete, and not concurrent with any other. It has long since been established, and cannot now be questioned, that when the jurisdiction of a court of the United States had once attached, no subsequent change in the condition of the parties will oust it. (See 15 How. 198, and 12 Peters, 165; 2 Wheat., 280, as well as a uniform line of cases on the subject.)
It seems to me to be the duty of the State courts to adopt the rule, thus firmly established in the United States, at least so far as to say that when the sofejurisdiction of the State court has once attached, no subsequent change in the condition of the parties will oust it.
I am of the opinion, therefore, that the case at bar does not come within the meaning of the law above referred to, and the petition should be denied. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502691/ | By the Court,
Patchin, J.
This case was tried in the November term, 1870, and a verdict rendered against defendants on the 15th day of December, 1870. On the 13th of January, 1871, an order was entered extending the time in which to settle a bill of exceptions until the further order of the Court.— January 19,1871, a motion for a new trial was argued and sub mitted. January 28, 1871, the motion for a new trial was denied and judgment was at the same time entered on the verdict, the 24th day ot January, 1871, being the first day of the next succeeding term. No further order extending the time has been made since, and now, (March 20,1871, being the next term after the cause was tried) the defendant presents a hill of exceptions for settlement.
The plaintiff objects, on the ground that the term at which the cause was tried having passed, the Court cannot now extend *76the time so as to settle a bill of exceptions. The statute provides that a bill of exceptions shall be settled as provided by the rules of Court. (0. L., § 3489.) Rule 85 provides that a bill of exceptions shall be settled during the term at which the trial was had, unless the' Coürt or Circuit Judge shall otherwise order.
The Supreme Court, in construing this rule, say that a bill of exceptions must be settled at'the term in which judgment was entered, or an order entered at that term, extending the time. 14 Mich., 334.
It is conceded in this case that the order extending the time was Altered at the same term of the judgment. But it is claimed that, being entered before the judgment, it was not binding, and therefore cannot be now considered.
If the order was premature and the bill of exceptions could not be settled until after judgment, there would be some force to the objection. But if, on the other hand, a bill could be settled at the time the order was taken, it was already within the power of the Court to extend the time for that purpose. A bill of exceptions has been defined to be the statement in writing of the objections made by aparty in a cause to the decision of the Court on a point of law. The object of the bill of exceptions is to put the question of law on record for the information of the Court of error having jurisdiction of the cause.
The theory of the law is that the bill of exceptions must bo tendered at the time the decision complained of is made; or if the exception be to the charge of the Court,it must be made before the jury have given their verdict.
In practice, however, the.point is merely noted at the time and the bill settled afterward, being, however, nothing more than a mere amplification of -the notes already taken, and containing only those points to which exceptions have been made.
The statute only limits the time for completingthebill,leaving the exceptions to be made as above indicated. It will be seen then, that the bill of exceptions in a cause is really made (although not put in form), even before the verdict; and inasmuch as it is only intended to contain suph matters as do not appear upon the record proper, and only such as are completed be*77fore the judgment, it follows, in the absence of any statute prohibiting it, that a bill of exceptions may be Settled before judgment.
In the ease at bar, then, a bill of exceptions could have bee n settled at the time the order extending the time was entered.
It follows, therefore, that the order was valid and the time properly'extended. The objection to settling a bill of exceptions must theiefore be overruled. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502693/ | By the Court,
Patciiin, J.
The plaintiff in this case resides in Windsor, Canada, and the defendant in Oakland County, in this State.
*79The suit was commenced by declartion in assumpsit, which was served upon the defendant in this county. The defendant put in a plea of abatement, to which.the plaintiff demurred.— The only question raised by the demurrer is, whether both parties being non-resident, this Court has jurisdiction of the cause. It is conceded that, so far as the pleadings show, before the plea in abatement, jurisdiction was complete, but it is claimed that as soon as it appears that both parties are non-residents that jurisdiction ceases.
The statute provides that actions of this kind shall be fried in the county where one of the ¡parties shall reside at the time of commencing such action, unless the Court shall deem it necessary for the convenience of parlies and their witnesses, or the purposes of a fair and impartial trial; to order any such issue to be tried in some other county, in which case the same shall be tried in the county so designated. Laws of 1809, page 9. My attention has not been called to any other statute affecting the case in any particular. It will be noticed that the place of trial is only mentioned here, and not the commencement of suit. It is quite clear that the effect of the law would be to remove the cause for trial in the county where one of thepart'ei resided at the commencement of the suit, unless otherwise ordered by the Court for some of the reasons mentioned in the law, for if the cause is tried in such county the law is fully complied with.
It cannot be claimed that the cause must be tried in the county where it is commenced, for the reason that there is no such provision in the law, it only providing that regardless of the commencement,the cause must be tried in a certain locality. The case at bar undoubtedly, unless coming within the exceptions, cannot be tried in-this county.
The demurrer, therefore, must be sustained. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502694/ | By the Court,
Patchin, J.
Thq relation of common carriers to the public is one of the mostimportant as well as interesting subjects with which thfe judiciary have to do. v
The question is very fully discussed by the Supreme Court of this State in 16 Mich., 79. The question there discussed whether the nature of the business done, or the person doing itj gives character to warehousing, does not, however, arise in this case.
Common carriers, when they become such, assume certain relations to the public that they cannot dispense with except by the consent of the parties interested; and, indeed, by the laws of 1867, page 165, only when .consent is given in a certain manner.
In the case above referred to, 16 Mich., 111, it is said that “ subject to reasonable regulations, every man has a right to insist that his property, if of such description as the carrier assumes to convey, shall be transported subject to the common liability.”
Whether it is the policy of the law to protect a man against his own acts, by prohibiting his entering into a contracp, although fully and fairly understood by him, not because he may thereby injure his fellow men, but only for the reason that in the opinion Of the law maker it would not be for his interest to make such a contract, may well be questioned.
*82It has generally been supposed that the great object of gov* ernments and law is to protect the citizens in such undertaking as to his own judgment may seem best, subject only to such restriction as will fully prevent his neighbor’s interest from being in the least affected.
The presumption of law is, that every one understands its provisions, and ignorance in that regard cannot be pleaded in law. It would seem that a degree of intelligence that would enable a person to understand intricate questions of law would be quite sufficient to protect him against the evil consequences of his own contracts, especially when it is remembered that those who have to do with common carriers are in almost every instance men of large experience, who would hardly admit that they require the protection of the law against their own acts. How successful the law makers will be in this respect- remains to be seen.
It is claimed, on the part of the plaintiffs, that in fixing the price to be paid for the entire distance, the defendant thereby became responsible; but it can hardly be said that that responsibility cannot be waited by a clear and distinct agreement. I cannot avoid the conclusion that where (as in the case at bar) a person making a contract actually signs a paper referring in plain terms to a condition on the back of the paper itself, and another one containing the same conditions is delivered to him at the same time, and this continuing through several transactions with precisely the same papers in each, then the law presumes that he understands and assents to each and every condition contained therein.
It follows, therefore, that the contract made by the plaintiff is binding, and he cannot recover in this action for any damages sustained which were expressly waived by his Contract. The judgment on the special verdict must be for the defendant. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502695/ | By the Court,
Patciiin, J.
This cause was tried in a Justice’s Court and judgment rendered therein for plaintiff for fifty dollars arid costs. The defendant thereupon appealed to this Court, where the jury rendered a verdict for plaintiff for twenty-five dollars.
Both parties now claim costs.
The first distinction made between appeal cases and others was provided for in the revised statutes of 1846, by giving costs to th«r appellant, if the judgment below should be reduced five dollars, and to the appellee if no such reduction was made, al*105lowing no such discretion to the Court in cases tried by a jury. Revised Statutes, 1846, page 410. sec. 170.
The compiled laws of 1857 leave the question of costs in appeal cases entirely to the discretion of the Court. C. L., § 8863.
In 1867 the law was amended so as again to leave the question of costs to depend upon the increase or reduction of the judgment below. Latos of 1867, p. 84.
The next Legislature however repealed this law, leaving the question as it had been established in the compiled laws, entirely dependent upon the circumstances of each case. Laws of 1889, p. 33.
Each Case, therefore, must be determined upon its own merits. It would seem proper, however, to adopt some ueiieral plan in regard to appeal cases, so that litigants may understand as near as may be, what to expect in case of defeat in the Circuit Court.
I am entirely clear that, in cases where the amount is unliquidated and”submitted to the jury upon the evidence, if the main issue was as to the right of the plaintiff to recover at all; a*nd if the appellant was the defendant upon that issue then although he may succeed in reducing thejudgment of the Court below, still he can be in no better condition than if the case was originally commenced in the Circuit Court, and he had succeeded in reducing the claim of the plaintiff, but had failed as to the main issue. It could hardly be ex-pacted that in cases depending so much on the judgment of the jury exactly the same verdict as to amount would be rendered upon a second trial even in the same court. It would, therefore, be more in accordance with strict rnles of justice to allow costs to follow the result of the main issue in the case unless some particular reason appears in the course of the trial for a different disposition.
As a general rule it would not be proper to allow costs to follow the judgment in this Court in all cases of trivial amounts in favor of the appellant, even if successful, although a different rule might prevail on judgment, in favor of the appellee.
I am unable to see anything in the case at bar to interfere with the rule here suggested.
Costs must follow the judgment. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502697/ | By the Court,
Patokis, J.
It is provided by section 3 of said act that all vacancies shall be filled by persons of the same political party as his predecessor.
The questions involved in the case at bar cannot be said to lie of importance merely as between the present incumbents and the defendants who now seek to supersede them; for the reason that the former have given entire satisfaction in the 'performance of their several duties, and it is conceded by all that the fatter are eminently qualified to fill the truly responsible position that has been proffered them. Neither are they political, for the two great political parties are equally represented.— They are rather pure questions of law relating to large and important interests, a proper consideration of which would require much more time tnan undrr the present circumstances can possibly be allowed. Iam compelled, therefore, to only briefly notice a very few of the many poiuts that have been made in the ease.
It is claimed on the part of the complainant that the Legislature have no right to designate the members of the m-esent Board.
*188The Constitution provides, by article 15, section 14, that “ judicial officers of cities and viilages' shall be elected, and all other officers shall be elected or appointed at such time and ii> such manner as the Le-gislxture miy direct.” It is conceded by the defendants that this clause is the one under which the appointments in the case at bar were made, but it is claimed that the Legislature by designating the names of the Board itself virtually declared that that shall be the time and manner of the appointment.
It is insisted on the part of the complainants that authoriiy to merely direct how the election or appointment shall be made gives no power to'go beyond the mere direction ; that until the condition precedent is performed by the Legislature, directing the time and manner of the election or appointment, there can be no power vested anywhere (not even in the Legislature itself) under the Constitution, to consummate the election or appointment.
The Constitution provides by article 15, section 8,jthat the Legislature shall pass no law altering or amending any act of incorporation heretofore granted without the assent of two-thirds of the members elected to each House, excepting municipal corporations.
It is conceded that in the case at bar the bill was not passed by a two-thirds vote.
It is claimed on the part of the complainants that the various Boards sought to be superseded by the defendants are separate and distinct corporations, none of them being municipal in their character, and that, therefore, to affect them the bill in question should have received a two-thirds vote.
The Constitution further provides, by article 18, section 1, that no other than the ordinary constitutional oath, declaration <>r test shall be required as a qualification for any office of public trust.
It is claimed by the complainants that the Legislature, under this clause of the Constitution, had no power to require that the members should be of any particular belief, or be connected with either of the two great parties;
• This provision was undoubtedly intended for good purposes ; and it is quite possible with the view many public officers *189seeoss to have, that they are elected to serve their political party rather than the public, whose interests they often lose sight of, it may a wise provision were it possible to make such an one under the clause above referred to.
It will be seen that these are grave and important questions and by no means clear in favor of either party.
do not propose to discuss the merits of these several points. or indeed to make any suggestions in regard to them. Were I so disposed, the lime allowed for examination is entirely inadequate.
It is claimed that a temporary injunction, at least, should issue, because of the large interests to be affected by the radical change contemplated by this law, and that such vast and important interests should not be carelessly passed from one to another.
It will perhaps be conceded that the present incumbents would come very far short of theirJ duty to the public, should they deliver up these vast interests without being first fully as. sured by the proper authorities that they had a right so to do, and I apprehend that'the gentlemen composing this Board do not desire to imperil the interests of the city by any action they may take' nd that taking possession of these important trusts with the full assurance that they are sustained by the law and cannot be disturbed or molested, will be much more satisfactory to them, as w^ell as all others interested, than tbe loose and un certain tenure sure to follow a doubtful possession. In view ot these facts I have deemed it my duty to exercise jurisdiction in the case and allow a temporary injunction to issue.
The questions involved can be finally settled in a little less than two months. A delay of so short a time cannot seriously affect any of the parties interested. It must be distinctly understood that no unnecessary delay can be allowed. I will hear counsel as to the extent of the temporary injunction. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502698/ | By the Court,
Patchin J—
This is a motion to dissolve a temporary injunction granted *236upon a bill in chancery filed dor the purpose of obtaining a permanent injunction against the city of Detroit, restraining them Irom paying for certain paving upon Woodward avenue, in said city, that had already been contracted for with the defendants, Walton & Co., for the reason that the contract- was illegal and void, not having been made in accordance with the provisions of the .charter.
It is provided in the charter that all work of this kind shall be let to the lowest responsible bidder, with sureties, and that proposals for the same shall be advertised. The lorm of the advertisement, as well as the details of letting to the lowest responsible bidder, seemB to have beén left somewhat to the discretion of the parties who are required by the charter to perform that duty.' The time, place and manner of presenting the proposals must be thus determined.
In the advertisement for proposals in the -case at bar is the following provision : “ Builders are required to file á satisfactory bond with the Controller before the proposals are opened, conditioned that should they be found to be the lowest bidders they will enter into a contract, with good and sufficient sureties to perform the work.”
The Detroit Ironizing and Paving Company filed with the Controller sealed proposals, .which are conceded to be the next lower proposals to those of Walton & Co., to whom the contract was let, but without complying with the above provisions by what is termed a bidder’s bond, claiming that the Controller had no right to .require them to do so. It is claimed on the part of the defendants that they neglected to thus comply with the conditions of the advertisement because the particular -kind of pavement for which the b;d was put in was secured by letters patent to other parties than them • selves, to wit, the defendants, Waitón & Co. It was conceded that in’ other cases, when the said Detroit Ironizing and Paving Com pany were the owners of the patent, they filed the necessary bidders’ bond, and when the lowest bidders they'were awarded the Con' tract by the Common-Council.
It therefore resolves itself, into a question of right on the part of the Controller to require the bonds. It is conceded that up to 1809 these bidding'bonds had not been required. In the .proceed*237inga of the Common Council of January 8th, 18G9, will bo found the following:
“ To the Honorable the Common Council:
Gentlemen — Mr. James French, who is the lowest bidder for paving, etc., of Farmer and Bates streets, declines to enter into a contract and perform the work. Messrs. Batchelder & Cook, who are the next lowest bidders for-this paving, also»dccliue to .contract according to their proposals. Messrs. 11. B. Johnson & Co., who are the next bidders for the paving, etc., of the above named streets, have agreed to perform the work at their proposal.
(Signed) B. G. STIMSON, Controller.”
It will be seen from the above that instead of the lowest the highest bidder received the contraet. It is entirely clear that up to this time those having the matter in charge had not so executed this provision of the charter, in this regard, as to secure to the city the very object of the law, namely that the contracts should be let to the lowest bidder, and that something more was necessary in order to properly carry out the very wholesome provisions of the charter in this respect. The additional requirement was therefore.made a bidders’ bond should be filed.” “ The lowest responsible- bidder” is the expression in the charter, and the Controller cannot under it contract with any other.
I cannot believe it to be the duty of the Controller .to go out .upon the street and make'- inquiry as to the responsibility of the holders or trust to his own previously, acquired knowledge in regard to it. The charter does not provide the mode in which this information shall be obtained, and the Controller is therefore.left to' adopt such reasonable and proper regulations as will best1' carry out the' objects of the law and secure .the work done by the' loVest responsible bidder, as contemplated by the charter. - This, it ’ seems to mo, the Controller has most effectually done by requiring bidders bonds to be filed with the proposals, that he may in his own office (where it is presumed his duties are to. be performed) determine all the matters required of him by the l.aw. And the public. record thus made will for all time to come give notice to the world that no man’s bid was ever acted upon, much less accepted, which did nof' possess all the qualifications required by the law. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502670/ | Filed 11/22/22 P. v. Session CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075808
v. (Super.Ct.No. FVI023867)
JEROME CORNELL SESSION, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,
Judge. Reversed.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Kamala D. Harris, Attorneys General, Lance E. Winters and Dane
R. Gillette, Chief Assistant Attorneys General, Charles C. Ragland and Julie L. Garland,
Assistant Attorneys General, Donald W. Ostertag, Robin Urbanski and Heidi T. Salerno,
Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
In 2006, defendant Jerome Session and his codefendant Shamar Thornton robbed a
convenience store, during which Thornton shot and killed the clerk. They were
separately tried in 2009; a jury found Session guilty of first degree of murder (Pen. Code,
§§ 187, subd. (a), 189)1 and robbery (§ 211), along with a true finding on a felony-
murder special circumstance allegation. In addition, defendant admitted he had
previously been convicted of a serious or violent felony under the Three Strikes law
(§ 667, subds. (b)-(i)). Defendant was sentenced to life without the possibility of parole
(LWOP). (§ 190.2, subd. (a)(17)(A).) Defendant appealed that conviction; we affirmed
the convictions for murder and robbery but we reversed the special circumstance finding
due to the court’s failure to read CALCRIM No. 703 and remanded for further
proceedings and resentencing. Following retrial, the special circumstance allegation was
again found true, defendant was resentenced to LWOP, and he appealed that finding
again. On appeal, we affirmed the special circumstance finding.
In 2019, following the enactment of section 1170.95 pursuant to passage of Senate
Bill No. 1437 (SB 1437), defendant filed a petition for resentencing. That petition was
denied without issuing an order to show cause, and defendant appealed that ruling. We
affirmed that order, with the majority holding that the felony-murder special
circumstance findings conclusively established that he was not eligible for relief.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
While his appeal was still pending review, the California Supreme Court issued its
decision in People v. Strong (2022) 13 Cal.5th 698 (Strong), and issued an order that we
vacate our decision and reconsider it in light of the decision in Strong. We gave the
parties an opportunity to file supplemental briefs, which they have now done, and we
now reverse.
BACKGROUND
1. Facts Pertaining to the Crime
We take the facts of the crime from the original opinion on direct appeal, People v.
Session, February 9, 2011, E049939, nonpublished opinion.
Shortly before 1:00 a.m. on March 21, 2006, two Black males, later identified as
Thornton and Session, walked into the 7-Eleven store on the corner of Highway 18 and
Apple Valley Road near Apple Valley. Thornton and Session forced Gould, the store
clerk, to give them all the money that was in the store’s two cash registers, a total of $62.
They then forced Gould into a back storage room, where Thornton shot and killed him.
The robbery was captured on store surveillance cameras, but the murder of Gould
in the back storage room was not. The surveillance videos, which were played for the
jury, showed Thornton and Session forcing Gould to open the store’s two cash registers,
with Thornton pointing a gun at Gould. The videos also showed the two men forcing
Gould toward the back of the store, out of the range of the surveillance cameras. Gould
was found dead in the back storage room. He had been shot 9 to 10 times with a nine-
millimeter semiautomatic handgun, and died at the scene.
3
On March 25, two days after surveillance videos and still photographs of the
suspects were released to the media, Thornton was taken into custody and Session turned
himself in. That same day, Session waived his Miranda2 rights and spoke to detectives,
both individually and in a joint interview with Thornton. Session’s individual interview
and joint interview with Thornton were recorded on DVD and admitted into evidence at
Session’s trial.
During the interviews, Session told detectives that he and Thornton were driving
around in Session’s car shortly before the robbery and were talking about the fact they
needed money. Thornton needed money to help his girlfriend move, and Session had lost
his job and owed money on his car. Around 40 minutes before the robbery, they stopped
at another store and Thornton purchased gloves for the two of them. They later drove by
the 7-Eleven store and decided to rob it when they saw that no one was in the store.
Session parked his car behind the 7-Eleven store. When Session and Thornton
entered the store, the clerk was in the first aisle, sweeping with a broom. Thornton
walked up to the clerk while Session was in another aisle, and Session overheard the
clerk say something like, “okay, okay, I’m gonna go get it . . . .” At that point, Session
looked down the first aisle and saw that Thornton had a gun and was pointing it at the
clerk.
Session claimed he did not know Thornton had a gun until he saw him pointing it
at the clerk. He thought they were going to commit a robbery using their “hands.”
2 Miranda v. Arizona (1966) 384 U.S. 436.
4
Session admitted, however, that he had previously heard of Thornton having guns. He
also said he could have left the store when he saw Thornton pointing a gun at the clerk,
but he decided to continue with the robbery.
Session admitted he then grabbed the clerk by the back of his shirt and took him to
the store’s two cash registers. There, the clerk took the cash out as directed, and Session
put the cash in his pocket. Thornton then began asking the clerk where the surveillance
tape was. The clerk said he did not have access to the tape. The owner of the store
testified that the computer on which the surveillance videos were recorded was in a
locked office in the store which the store clerks could not access.
Session forced the clerk to the back storage room, and Thornton followed.
Session claimed he intended “to just take [Gould] to the back, probably just sock on him
a couple times, just so [he and Thornton could] get enough time to get away or somethin’
like that.” In the storage room, Session pushed Gould against a wall and heard a gunshot
as he raised his hand to hit Gould. He claimed the first shot grazed his arm. He walked
out of the room after he heard the first shot, then he heard “[a]t least” seven more shots.
He and Thornton then ran out of the store. Inside Session’s car, Session and Thornton
split the money they had stolen, and Session complained he had been hit with a bullet.
Thornton told Session he was sorry Session had been hit and, if they got caught, he
(Thornton) would take the “rap” for what had happened.
Session admitted Gould was “very cooperative” and, on the way to the storage
room, was pleading with Session and Thornton not to hurt him. After they left the store,
5
Session dropped Thornton off in “the flats,” then went to a friend’s house. Video
surveillance tapes from another 7-Eleven store on Bear Valley Road showed Session in
that store shortly after 2:00 a.m., purchasing a 40-ounce beer and cigars. Session
admitted he was at the other 7-Eleven store shortly after the robbery.
Immediately after their joint interview, Session and Thornton spoke with each
other. They were friendly toward each other, and Session showed no signs of animosity
toward Thornton for his having shot and killed Gould. They talked about where the
police had been looking for them and who had given information to the police concerning
their whereabouts. Session also indicated he had turned himself in because others had
been “runnin’ their mouth[s].”
Following his conviction, defendant appealed, challenging the trial court’s failure
to give CALCRIM No. 703 relating to the special circumstance finding, and the
imposition of a $10,000 parole revocation restitution fine. (People v. Session (Feb. 9,
2011) E049939, [nonpub. opn.].) We affirmed the murder and robbery convictions but
reversed the special circumstance finding and remanded the matter for further
proceedings and resentencing. (Ibid.) On remand and retrial of the special circumstance
allegation, the jury again returned a true finding and defendant was resentenced to a term
of LWOP.3 Defendant again appealed. (People v. Session (Sept. 14, 2012) E053942,
[nonpub. opn.].) We affirmed the special circumstances finding because other
3On resentencing, the parole revocation restitution fine pursuant to section
1202.45 was not imposed.
6
instructions amply covered that issue. (People v. Session, supra, E053942.) The
Supreme Court denied review of that decision.
On June 17, 2019, following the enactment of section 1170.95, defendant filed a
petition for resentencing. The trial court denied the petition on August 28, 2020, and
defendant appealed that ruling. On appeal, we affirmed the trial court’s finding
defendant was ineligible for relief due to the special circumstances finding. Defendant’s
petition for review was granted and held, pending the decision in Strong, supra, 13
Cal.5th 698, and upon issuance of the decision, we have vacated our opinion for
reconsideration in light of that opinion.
DISCUSSION
Under section 1172.6, the trial court must vacate a first-degree murder conviction
that was based on a felony-murder theory, unless the petitioner either (1) was the actual
killer, (2) had the intent to kill and aided and abetted the commission of first-degree
murder, or (3) was a major participant in the underlying felony and acted with reckless
indifference to human life. (§ 1172.6, subd. (d)(3), incorporating § 189, subd. (e).)
A felony-murder special circumstance, however, requires that the defendant either
(1) was the actual killer, (2) had the intent to kill and aided and abetted the commission of
first-degree murder, or (3) was a major participant in the underlying felony and acted
with reckless indifference to human life. (§ 190.2, subds. (a)(17), (b)-(d).) Here,
defendant was not the actual shooter.
7
While this appeal was pending, the Supreme Court in Strong held that People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark)
“substantially clarified” the requirements of a felony murder special-circumstance
finding. (Strong, supra, 13 Cal.5th at p. 706.) Therefore, it concluded a felony murder
special-circumstance finding made before Banks and Clark were decided does not
conclusively establish ineligibility for relief under section 1172.8. (Strong, supra, at
pp. 710-720.)
The People concede that, because the felony-murder special-circumstance finding
in appellant’s case was made before Banks and Clark, that finding does not, in and of
itself, render him ineligible for resentencing. Therefore, the trial court’s order summarily
denying appellant’s petition must be reversed and this matter remanded for further
proceedings consistent with the holding Strong.
Because the trial court denied the petition based on the felony-murder special
circumstances, it has not yet ruled on whether the petition otherwise stated a prima facie
case.
DISPOSITION
The order appealed from is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RAPHAEL
J.
8 | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502982/ | OPINION
Opinion delivered by
CADMAN, Associate Justice.
This is an appeal of a final order and judgment of the Window Rock Family Court which declared an oral will and distributed the decedent’s house to an intervenor-claimant. The dispositive issues on appeal are these: 1) whether the decedent in this probate made a traditional Navajo oral will which should be recognized and enforced; and 2) whether the family court erred in relying upon statements made by the probate administratrix to the intervenor after the decedent’s death.
I
Mae G. Howard died on August 31, 1991. She was a 75 year-old widow with a daughter, Alberta Beardsley, and two grandsons by a deceased daughter. Elvira Rose Blackman, the decedent’s niece, was the only relative who lived with Howard at her house in the St. Michael’s housing subdivision in Window Rock, Navajo Nation. Blackman lived with Howard as a “renter” for two years prior to Howard’s death.
Beardsley filed a petition for the probate of an intestate estate, naming herself, Alyce Howard (the deceased daughter), and Alyce Howard’s two sons, Chris Begay and Wilbert Keedah Jr., as the heirs. The estate inventory did not list Howard’s house as an asset of the estate. At the time of the final hearing on March 20,1995, Blackman sought to intervene, claiming that the inclusion of the house in a decree of distribution would violate an oral will made by Howard prior *263to her death. Given that the home was not included in the inventory, Beardsley orally amended the inventory to include the house. The court continued the final hearing to receive testimony on the asserted oral will.
At the hearing, Blackman testified that she rented a bedroom in Howard’s house for two years prior to her death. At no time did Howard tell her she would get the house. Blackman testified that during a conversation with Beardsley shortly after Howard’s death, Beardsley told her that Howard expressed a desire that she “have the house.” Beardsley denied any such conversation with Howard and said she did not recall making such a statement to Blackman.
Blackman offered a secretly recorded tape recording of an August 22, 1992 telephone conversation with Beardsley where she appeared to acknowledge that Howard wanted Blackman to have the house. The transcription of the tape appears to show that Beardsley wanted to avoid the oral will “[bjecause it’s not legal,” or claimed that while “grandma wanted you to have the house,” she “changed her mind.” The court received the tape as evidence to impeach Beardsley’s denial despite her objections.
Beardsley’s conversation with Howard prior to her death, if it took place, was one between a decedent and her only child. Blackman was not privy to the conversation and she stated she did not leam of it until after Howard’s death. The surviving children of the decedent’s other daughter were not present for the alleged oral will.
Based upon the testimony, the Window Rock Family Court concluded that the decedent “gave her only surviving child ... instructions to the effect that she wanted the Intervenor [Blackman] to receive her personal home in the event of her death”; that the daughter conveyed those wishes to Blackman; and that Blackman relied upon those representations. Using these findings, plus our prior decisions on oral wills, the family court found the existence of an oral will and “awarded the permanent, sole and exclusive possession and ownership” of the house to Blackman, “with immediate and continuing rights of occupancy and use.” Beardsley appeals.
II
As a preliminary matter, we reject the contention that the October 16, 1995 family court judgment was not a “final judgment” for purposes of appeal. That judgment actually awarded “the permanent, sole and exclusive possession and ownership” of a distinct item of estate property to Blackman. Therefore, the judgment is final and this appeal is proper.
III
The Navajo common law of the “oral will” is troublesome. An oral will is a lifetime statement of a decedent’s wishes on the disposition of his or her property after death. English-American common law addressed problems of fraud, con*264tention, and the reliability of hearsay statements of a decedent’s oral wishes by requiring that wills be in writing and witnessed (with the exception of holographic wills). Our courts rejected the English-American rule, as they have the authority to do, in favor of honoring the wishes of Navajos in accordance with ancient custom. The oral will is a time-honored Navajo practice and the People expect their courts to acknowledge and enforce it in modern probate proceedings.
The former Navajo Court of Indian Offenses recognized and enforced oral wills in its decisions. Barsh, Navajo Tribal Courts, Property and Probate Law, 1940-1972, 6 Law and Anthropology 169, 183 (1991).1 This Court has struggled to frame rules for the reception of oral wills in probates, and a review of past decisions is relevant to the case before us.
The first reported oral will decision is Estate of Lee, 1 Nav. R. 27 (1971). In that case, the decedent’s brother moved to reopen an intestate estate to assert an oral will. The discussion that was asserted as an oral will took place among the decedent, his three brothers (including the claimant), and the mother of all four. Id. at 30-31. The Court found that “[ajlthough their statements generally agree, we do not consider that the statements made are strong enough to prove an actual will of the land to petitioner.” Id. at 31. The Court acknowledged will-making under the general American rule and the Navajo Nation statute (8 N.T.C. Sec. 3), both of which require a written and witnessed will, but stated the rule that:
It is a well established custom that a Navajo may orally state who shall have his property after his death when all of his immediate family are present and agree and that such a division will be honored after his death. We know of no other custom in this respect. We hold, therefore, that unless all of the members of his immediate family are present and agree [a] Navajo cannot make an oral will...
Id. at 31-32.
The Court revisited the issue of what it takes to make an oral will in Estate of Benally, 1 Nav. R. 219 (1978). There, the decedent orally devised his grazing permit to his wife in the presence of the wife and their four children. Id. at 220. The problem was the decedent’s four children by a first marriage were not present at the discussion, and they claimed their portion of the estate as members of the “immediate family.” Id. After examining state case definitions of “immediate family,” and noting that the definition requires “living together in the same household” or being “members of the same household,” the Court concluded as follows: “We adopt the rule that the children of the decedent’s first marriage, who were not living with the decedent when he died, are not members of the immediate family for the purpose of an oral will.” Id. at 222-223 (citations omitted). The Court explained its reasons to modify the test:
*265We are limiting this rule on the immediate family to cases involving oral wills because the Court is mindful of the Navajo concept of the extended family. This rule is adopted because it would work too great a hardship on the Navajo People to require the presence of all who might be considered immediate family by the Navajo extended family concept. Since many Navajo[s] cannot write, cannot afford to have an attorney write a will and do not understand the concept of a written will, [it] is important that there be some alternate method by which a person may devise his property.
Id. at 223. The Court found that the will was made in the presence of the decedent’s wife and the children of the marriage, and, lacking evidence of “disagreement among members of the immediate family,” there was a valid oral will. Id. The Court also rejected an objection to testimony about an oral will as a violation of the “Dead Man’s Act” and declined to adopt that rule of law for the Navajo Nation. Id. at 224.
Former Chief Justice Tom Tso also discussed the “immediate family” definition in Estate of Apachee, 4 Nav. R. 178, 183 (Window Rock D. Ct. 1983). There, he found that the “immediate family” consisted of the decedent and his mother, father, and three sisters, with whom he lived: “They would logically belong to the ‘immediate family’ because of the close ties of blood, but more importantly, because of the mutual assistance and support they gave to each other.” Id. at 183. There was also a minor child who was in the custody of his mother following a divorce. Id. at 178. The Court found that the child “is also a logical member of the ‘immediate family’ because he was ‘bom for’ his father’s clan and is in need of assistance.” Id. at 183. Judge Tso reasoned that “the object of Navajo common law probate is to benefit the camp or residence group as a unit in the case of productive property and to benefit those living together and those in need in the case of nonproductive property.” Id. This was not an oral will case, but one where the court interpreted the term immediate family to determine heirs in intestacy. Id. at 179.
The struggle with oral wills continued in Estate of Thomas, 6 Nav. R. 51 (1988), See also Estate of Thomas, 5 Nav. R. 232 (Window Rock D. Ct. 1986) (the district court’s decision was reversed on appeal). There, the Court found that the decedent had eight adult children and the alleged oral will was made in the presence of two children who lived in the same camp or household, but not in the presence of other children who lived nearby in the same community and in Gallup and Tohatchi. The Court clarified the “immediate family mle” to require “that all children of the testator, including the spouse if alive, must be present in order for an oral will to be valid.” Id. The court overruled the definition of immediate family as including only those children who resided with the decedent in favor of a mle which requires the presence of all children and a surviving spouse. Id. at 53. The court reasoned that a mle which permits a decedent “to essentially eliminate from the immediate family those children of the testator who do not reside under the same roof as the testator” as “inconsistent with the Navajo custom which teaches that parents should view each of their children equally.” Id. at 54. With this background, we now turn to the issues at hand.
*266IV
A
At the outset, this Court reaffirms the policy of the Navajo Nation courts, which most likely dates to their inception in 1892 as the Navajo Court of Indian Offenses, to honor the traditions and practices of the Navajo People. The oral will is too entrenched in the values of the Navajo People to abandon now. We acknowledge, however, the complexities of translating an ancient Navajo customary practice into a rule to be applied in modern adjudication. While one of the fictions which underlies English common law, American common law, and Navajo common law is that judges do nothing more than articulate the customs and traditions of their peoples to “find” the law rather than “declare” it, the process is difficult.
Here, we deal with a custom where a Navajo makes a living declaration of what he or she wants done with property after death and that the heirs will normally honor and obey that wish. That kind of dynamic comes to the courts in situations where heirs and others disagree about the “wishes” of a decedent. That forces us to search for a rule of reliability, an evidentiary means, to find the wishes of a decedent when making a decision in contested adjudication.
The existence or not of an oral will should be decided by family members on their own or in peacemaking. If that is not possible, the case will go to adjudication for a decision based on the reliability of an asserted oral will to find the wishes it expresses. We will examine the facts of this case to determine Howard’s wishes and whether Blackman proved the existence of those wishes as an oral will.
B
This is a case about an elderly woman who lived in a modern home in a contemporary subdivision of the Capital of the Navajo Nation at Window Rock. She owned a modern house or kin. She did not live in a sheep camp or hogan situated in a rural area. She had no spouse. Only one of her children was living, but that child did not live with her. Her grandchildren by a deceased daughter did not live with her. The only relative who lived with her was Blackman, her niece, whom the Court found was an “occupant” of the house and the testimony described as a “renter.” That is important, because prior decisions have considered the interdependence and common efforts of members of a residence to its maintenance and that of a decedent as a factor.
In this case, the decedent, Howard, purportedly made her declaration of intent to her only daughter, Beardsley, that the co-resident niece, Blackman, should have her house outside the presence of the niece. The beneficiary of the testamentary gift was not present at that discussion. That alone does not meet the requirement of reliability, particularly when the beneficiary resided in the same house with the decedent.
*267Circumstantial evidence may support an oral will and in this case we look at that evidence, developed following the decedent’s death, to see if there was in fact an oral will. The house was not listed in the original inventory and that might be interpreted as Beardsley’s understanding that there was an oral will and that she was carrying out her mother’s wishes by assuming it passed under the oral will. However, the record reflects that the house was later added in the amended inventory. Beardsley’s statement against interest to Blackman (that the deceased wanted her to have the house), if credible in light of the demeanor of the parties, might provide further circumstantial confirmation. However, Beardsley presented testimony denying she ever made that statement against interest. Blackman then introduced a tape recording to bolster her position that Beardsley did make the statement and to impeach Beardsley’s denial. Apparently, the court placed great weight on the tape recording to find an oral will and we deal with that now.
This Court is flee to interpret rules of evidence in light of Navajo common law. This Court did so in Estate of Benally, 1 Nav. R. at 224, when it rejected the “Dead Man’s Act” which prohibits the receipt of hearsay declarations by a decedent. If we are to honor the oral will as a principle of Navajo common law, non-Navajo rules of evidence will not stand in the way.
The foundations of rules of evidence are reliability and public policy. In this case, a claimant (Blackman) sought to reinforce her claim by making a telephone call to a competing claimant (Beardsley) who was also the administratrix of the estate with responsibilities to other potential heirs. The call was secretly taped, without the knowledge and consent of Beardsley, by an investigator for Blackman’s attorney.2 The policy issue is whether the Navajo Nation courts should receive such evidence, either as direct evidence or as impeachment testimony.
Generally, under Navajo common law, information is property. A person’s words are property. Taping them in a clandestine manner and without the knowledge and consent of the speaker is a form of theft. It is deceit. Despite any other rule governing telephonic or other electronic communications where a sender does not know a recipient or third person is recording the communication, we hold that as a matter of policy, framed by Navajo common law, the Navajo Nation courts will not receive recordings of electronic communications if they are made without the knowledge and consent of a speaker or sender or other legal authorization. We conclude that the Window Rock Family Court erred in receiving the tape and its transcript into evidence and relying on it to rule in favor of an oral will.
*268We find it relevant that this decedent made her declaration to a daughter who did not live in the same house regarding an intended beneficiary who did live in the same house. There was no showing that the declaration was repeated on any other occasion or otherwise acted upon, within the claimant’s presence or that of any other relative, associate of the decedent, or associate of the daughter. The trial court’s conclusion that it was more likely than not that there was an oral will, based upon a one-time discussion between a mother and daughter and without indications of reliability which occurred during the decedent’s lifetime, was in error. While it is logical to expect that an elderly woman would discuss her affairs and desires with a daughter, it is not logical to conclude that the conversation either took place or reflected the firm will of the decedent without any other indicator of reliability. Even if the tape and its transcript were not contrary to public policy, we note that the daughter-administratrix against whom it was used also asserted that the decedent changed her mind. That fact defeats the telephone conversation as an indicator of reliability.
V
Finally, we see a need to say something on the “immediate family” rule. In a case such as the one before us, we see problems with attempting to find an oral will where the decedent makes his or her last wishes known only to the sole surviving heir. There is a potential that the sole surviving heir may not follow through on the decedent’s wishes. For that reason, we suggest that another person witness the discussion that form the basis of the decedent’s final declarations.
We are aware that this Court’s prior decisions on the “immediate family” rule appear to make up wills for decedents rather than ascertaining the decedents’ exact wishes and whether those expressions were reliable. However, we also see the potential for abuse and those concerns were raised at oral argument. There may be instances where a decedent expresses wishes outside the presence of a logical heir or intended beneficiary or expresses wishes to exclude someone who otherwise might seem to be a logical heir. These matters and others related to the “immediate family” rule, we will leave for another day.
VI
We conclude there is no oral will. Therefore, the decision of the Window Rock Family Court is reversed. The family court shall conduct proceedings which are consistent with this opinion.
. Barsh’s review of Navajo Nation probate decisions was funded by the Kennedy Institute of Politics and approved by Chief Justice Virgil Kirk. The published article is a revision of an original report to the Judicial Branch of the Navajo Nation.
. At oral argument, the Court asked both attorneys if the administratrix was represented by counsel at the time, because a call initiated by counsel for one opposing party could violate the prohibition against direct attorney contact with another opposing party. The attorneys gave conflicting answers. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502706/ | MOTION TO QUASH COURT ORDER
Comes now, Perry Allen, Prosecutor for the Navajo Tribe, respondent herein and moves the Court to quash th order of the Court issued on June 29, 1971 in the above-entitled cause, referring to case number WR2- 272-3420-70 and case number WR1-909-88Q-71 for the following reasons, to wit:
I
The Court Order was issued ex parte, after the defendant was legally found guilty of the offenses of Assault and Battery, and Violation of Probation, and such ex parte action was not required by the Court in the interest of substantial justice, nor were circumstances in the nature of an emergency, 56 Am.Jur., Motions, Rules, and Orders § 33, and such order should not have issued ex parte.
II
No notice of appeal of hearing, nor any service of notice to the adverse party, was made. This is violation of Rule 27, Rules of Criminal Procedure. Failure to such notice to the *25adverse party is violation of due process requirements, 56 Am. Jur., Motions, Rules, and Orders. § 23.
III
The Court of Appeals shall consist of the Chief Justice and two Trial Court judges (7 N.T.C. § 171), and no hearing was held before a legally convened Court of Appeals.
IV
The Court Order cites as authority Title 7, § 173 of the Navajo Tribal Code. This authority is only for a duly convened Court of Appeals. The Chief Justice, without the two other judges as required by 7 N.T.C. § 171, does not constitute a Court of Appeals. 7 N.T.C. § 173 does not vest authority in the Chief Justice; therefore, the Court Order is without proper authority.
V
Any error, if there be error, was error of the Trial Court in imposing sentence, and does not affect the issue of guilty or innocence. If such error was clerical, correction of the error may simply be made by the Court. If the error was the imposition of an illegal sentence, Rule 26 of the Rules of Criminal Procedure provides for correction of the sentence by the Court; no provision exists for the entire dismissal of the cases.
VI
The Order of the Court of Appeals of the Navajo Tribe was wrongfully issued on an informal petition to the Chief Justice, resulting in the wrongful discharge of the defendant.
WHEREFORE, respondent prays the Court to quash the *26order heretofore issued in this matter and to order a formal appeal be granted to hear the sole issue of sentence in accordance with procedure already established by the Court of Appeals of the Navajo Tribe.
Dated this 8th day of July, 1971.
/s/ Perry Allen, Prosecutor Office of Prosecutor | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502707/ | KIRK, Chief Justice
This is an appeal from an order of the Trial Court for the Shiprock District denying the motion of the appellant for hearing of his claim on the merits.
*28Ray Lee, a Navajo who resided near Shiprock within the territorial jurisdiction of the Navajo Tribe, died on the 8th day of July, 1966. Petition for probate was filed in the Trial Court for the Shiprock District on the 21st day of May 1969, by Betty Lee, now Betty Lee Begay, the respondent herein, and the widow of the deceased, showing that Ray Lee at the time of his death was the owner of:
Land Use Permit No. 189, for the assignment of 9.32 acres of land located 4 miles northwest of Shiprock, New Mexico,
as well as a grazing permit and other property. It further appeared from said petition that the only heirs of the deceased were the above-named widow and five minor children. On the 14th day of August, 1969, a final order was entered by the Trial Court awarding all the property of the deceased to the widow and closing the estate. The record does not show whether the petitioner was notified of the probate proceedings. The petitioner states that he had no notice of it.
In August of 1970, the petitioner filed a motion to reopen the probate proceedings and permit him to make a claim against the estate. This petition was allowed by the Court and thereafter further petitions and motions were filed. Appeal was thereafter filed with the Court on January 22, 1971, and allowed on the second day of March, 1971, and referred to the Trial Court on the question of a right to a new trial. A new trial was denied by the Trial Court on grounds of res adjudicata by an order dated May 14, 1971. A second appeal was made *29to this Court on June 17, 1971, alleging as grounds that the deceased made an oral will prior to his death devising the land use permit for the 9.32 acres to the petitioner, and we have accepted the matter for hearing.
1. We hold, first, that the petitioner's right to a hearing on his claim of an oral will is not res adjudicata. If the record showed that the petitioner had notice of the probate proceeding and an opportunity for a hearing before the order was made on August 14, 1969, we would hold that the petitioner had not made his claim in time and would be barred to have any further hearing. In any probate proceeding in which the record shows notice given to heirs and other interested parties either actually or in accordance with the rules of this Court, the final order in the estate will be considered final and res adjudicata and no later claim will be considered.
2. Upon a hearing the merits before this Court and upon evidence duly presented we make the following findings of fact: The deceased and the respondent Betty Lee Begay, were married in 1954 and were the parents of the five children listed in the probate order. The said Betty Lee Begay and these children were his only heirs at the time of his death. The deceased acquired Land Use Permit No. 189 mentioned above in 1952 in his own name and never sold or transferred it. Before the deceased became sick in 1966, he worked in a mine in Colorado and supported his wife and family. He and his family were never separated. In 1966, both deceased and his wife became sick and they built a shack on the 9.32 acre tract with government help allowed *30for tuberculosis patients. The wife, Betty Lee Begay did the work but it was done in the name of deceased because he was the head of the family. At about that same time both the deceased and his wife, Betty Lee Begay, went to the hospital, and the deceased's mother, Ben Bitsie Lee, came to take care of the children.
The petitioner, Morgan Lee, came with his mother at that time In 1986 before that time had never used the 9.32 acre tract of land nor lived on it. At a family meeting after the funeral of the deceased when it is the Navajo custom to discuss the deceased's property matters among the family, the petitioner said nothing about his claim that the deceased gave him the land or made an oral will leaving the land to him.
After the order closing the estate In August of 1969, Land Use Permit No. 189 for the 9.32 acres of land was assigned to the defendant, Betty Lee Begay, by the General Superintendent, Bureau of Indian Affairs, as provided by §§ 85 and 87, Title 3, Navajo Tribal Code. Thereafter the petitioner tried to buy the land from the respondent but they came to no agreement about it.
There was some evidence that the respondent moved away from the property a short time after the funeral. We believe that this was due to family disagreements between the respondent and her husband's mother and brothers and that it did not show any intention on her part to abandon the land to the petitioner. The petitioner's claim of an oral will is based upon a conversation with the deceased *31which is said to have taken place on July 5, 1966, in the presence of their mother, Ben Bitsie Lee, two other brothers and the petitioner. Although their statements generally agree, we do not consider that the statements made are strong enough to prove an actual will of the land to petitioner.
3. It is the general rule by statute in other courts that a party to an action against an estate will not be permitted to testify to a "transaction with or statement by “ the deceased; Arizona Revised Statutes § 12-2251; Kerwin v. Bank of Douglas (1963), 93 Ariz, 269, P. 2d 978, 13 ALR3rd 398; 58 Am.Jur, 146, Witnesses, § 214. We hereby adopt this as the rule of the Navajo Courts. Accordingly, we cannot consider any testimony of the petitioner relating to his claim.
4. The petitioner's claim is based upon an oral will. Because of the dangers of letting so serious a matter as a will depend on oral testimony many courts provide that all wills must be in writing; 57 Am.Jur. 186, Wills, § 220. The Navajo Tribal Code provides:
"A will shall be deemed to be valid ... if the will was made in accordance with a proved Tribal custom or made in writing and signed by the decedent in the presence of two witnesses who also sign the will.11
Title 8, § 3, Navajo Tribal Code.
It is a well established custom that a Navajo may orally state who shall have his property after his death when all of his immediate family are present and agree and that such a division will be honored after his death. We know of no other custom in this respect. We hold, *32therefore, that unless all of the members of his immediate family are present and agree and Navajo cannot make an oral will. Since the wife and children were not present when the deceased made the alleged oral will to the petitioner, we hold it was invalid.
5. Statements have been made in argument in this case that a Land Use Permit as provided by § 87, Title 3, Navajo Tribal Code, is persona! property and not an interest in land. Although this is not an interest which may be inherited, the Tribal Code has provided for distribution through the Tribal Courts: See Cohen, Federal Indian Law (1958 edition), P.429; Title 3, § 87, Navajo Tribal Code. Consequently we hold that a land use permit shall be considered an interest in land that many pass by will or inheritance or be sold or assigned all subject to the supervision in the proper case by the Navajo Courts, the Land Boards and the General Superintendent.
For the reasons above stated, the final order in probate of the Trial Court dated August 14, 1989, is hereby affirmed and judgment is hereby entered for the respondent and against the petitioner on the petitioner's claim.
BECENTI, Associate Justice and YELLOWHAIR, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502709/ | KIRK, Chief Justice
This is an appeal from a judgment of the Window Rock Trial Court on a plea of guilty by the defendant entered on May 20, 1971, to a charge of reckless driving while under the influence of liquor, Title 14, Navajo Tribal Code, Section 245. The judgment was that the defendant serve 60 days in jail or pay a fine of $150.00. The request for appeal was based on illegality of the sentence and on the ground that the defendant, was not represented by counsel at the time of arraignment. The appeal was allowed by this Court on May 26, 1971.
*38First, we hold that a defendant has no right to appeal after a plea of "guilty": 4 Am.Jur.2nd 785, Appeal and Error, § 271; State v.Jairl (1961), 229 Or. 533, 368 P.2nd 323. In this case, however, it appears that the defendant was without counsel at the time of arraignment and may not have understood the effect or nature of his plea of guilty. Consequently, we have permitted him to withdraw his plea of “guilty" and enter a plea of "not guilty" and stand trial de novo in this Court. The proper procedure would be for the defendant to apply to the Trial Court to change his plea to "not guilty" which the Trial Court should allow if there is any question that the defendant did not understand the plea. An order refusing to allow the defendant to change his plea would be subject to appeal here.
On trial de novo the court heard the evidence and witnesses of both the prosecution and the defense and being advised finds the defendant guilty of the crime charged beyond a reasonable doubt.
The judgment of the Court is that the defendant shall serve 60 days in jail.
The points made in the defendant's brief that the judgment of the Trial Court was in violation of the Indian Bill of Rights (25 U.S.C 1302(8)), and the holding of the United States Supreme Court in Tate v. Short (March 2, 1971), 39 Law Weekly 4301, can be answered as follows: Any question of the language of 14 N.T.C, 246 is not involved here because the defendant was charged in this case under 14 N.T.C 245. The rule in Tate v. Short, supra, does not apply because *39because 14 N.T.C 245 does not involve punishment by fine under any circumstances.
This matter is remanded to the Trial Court with direction to enter a judgment that the defendant shall serve 60 days in jail.
WILSON, Associate Justice and LEUPP, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502710/ | KIRK, Chief Justice
This is an original application for a writ of prohibition directed by this Court to the Trial Court for the Window Rock District to bar the prosecution of an action for forcible entry and detainer there in which the petitioners here, Orlando Helicopter Airways, inc. and Indian Airways, Inc., are defendants and the Navajo Tribe of Indians is plaintiff. In this opinion we will call them plaintiff and defendants *41as used in the Trial Court.
The ground for the application is that the Navajo Courts have no jurisdiction over the defendants because they are not Indians.
The provisions of the Navajo Tribal Code relating to jurisdiction of courts are found in Title 7, Navajo Tribal Code, Section 133. Of this the defendants claim that the present action is governed by Title 7, Navajo Tribal Code, Section 133(b):
Civil Causes of Action, which gives jurisdiction in: "All civil actions in which the defendant is an Indian and is found within its territorial jurisdiction."
The plaintiff insists that the governing rule is found in Title 7, Navajo Tribal Code, Section 133(e): Miscellaneous, which extends jurisdiction to: "All other matters .. . which may hereafter be placed within the jurisdiction of the Trial Court by resolution of the Navajo Tribal Council,"
If it had been the intention of the Tribal Council in enacting Title 7, Navajo Tribal Code, Section 133 to limit jurisdiction in all civil cases to Indian defendants within the territorial jurisdiction of the Court, Subsections (c), (d), and (e) would have been unnecessary.
The provisions in Title 7, Navajo Tribal Code, Section 133 were enacted in 1958 but the forcible entry and detainer resolution *42(16 N.T.C., §§ 751-760) was not adopted until 1969 when special difficulties arose because tenants of the Navajo Housing Authority were failing to pay their rent: See footnote to 16 N.T.C., Section 751. Since Navajo Housing Authority houses and apartments are available to non-Indians as well as Indians, the statutory history would indicate that there was no intention on the part of the Tribal Council to limit the forcible entry and detainer laws to Title 7, Navajo Tribal Code, Section 133(b).
Also, a forcible entry and detainer action is not at all clearly a "civil action." At common law it was a criminal or partly criminal proceeding: 35 Am.Jur.2nd 891, Forcible Entry and Detainer, Section 2. Present forcible entry and detainer laws are all statutory but the provisions for short notice, quick hearing and limitations as to subject matter mark it as a special type of action not to be included under "all civil actions" in Title 7, Navajo Tribal Code, Section 133(b).
This Court is not required to seek Federal statutory authority for its assumption of jurisdiction within the territorial jurisdiction of the Navajo Tribe. Its powers rest upon the original tribal sovereignty rather than any federal grant of power: William v. Lee (1959), 358 U.S. 217, 3 L.Ed.2nd 251 at 253, 79 S.Ct. 169; Cohen, Federal Indian Law (1958 ed.) 396, 444. The only authority to the contrary cited by the defendants is 25 CFR 11.22 which defines the jurisdiction of the Courts of Indian Offenses. These courts are no longer in existence here and rules relating to them are superseded by rules adopted by the Navajo Tribal Council such as Title 7, Navajo Tribal Code, Section 133 *43which we have discussed here .
From early times special consideration has been given to the needs of the Indian Nations to protect their lands from trespass by outsiders. Early treaties expressly gave them the right to proceed against trespassers "in accordance with their own laws and custom." Cohen, Federal Indian Law (1958 ed.) 632 and 633. When a non-Indian enters Indian land for the purpose of doing business thereon, he may very well be considered to have submitted himself to the jurisdiction of the Indian courts. In Williams v. Lee, supra, in holding that a non-Indian who had been operating a trading post on Navajo lands could not maintain an action against an Indian in an Arizona State Court but must use in the Navajo courts, the United States Supreme Court emphasized that the non-Indian plaintiff was voluntarily doing business on Indian lands. By the same reasoning we hold that the non-Indian may be sued in the Navajo courts.
The answer filed by the defendants in the trial court is marked "(Special Appearance)" but contains general denials of matters relating to the merits of the action two affirmative defenses bearing upon their right to possession of the premises described in the complaint. It is a general rule of procedure, to which this court subscribes, that an objection to the jurisdiction of the Court over a party will be waived when the party submits himself to the jurisdiction of the Court: 20 Am. Jur.2nd 455 and 456, Courts, Section 95; Jardine v. Superior Court (1931), 213 Cal. 301, 2 P.2nd 756, 79 ALR 291. By answering to the merits defendants have waived their objections to the *44to the jurisdiction of the Court to hear the. case.
The writ of prohibition is quashed and denied and the trial court is directed to proceed prompty with the trial of said cause.
BENALLY, Associate justice and WILSON, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502711/ | KIRK, Chief Justice
The principal question presented on this appeal is whether a person charged with driving or under actual control of a vehicle while under the influence of intoxicating liquor as defined by Title 14, Navajo Tribal Code, Section 246, can be held to be guilty of the charge under evidence that the defendant's truck was found parked near the roadway with the lights on and the engine running and with defendant sitting behind the driver's wheel passed out from the influence of intoxicating liquor.
*46We hold that the defendant under these circumstances is "under actual physical control11 of the vehicle as provided by Title 14, Navajo Tribal Code, Section 246, and that he is guilty of the offense charged. This is in accord with the decisions of the state courts which hold that the vehicle need not be moving under facts such as are here involved: State v. Graham, 264 N.C. 228, 141 S.E.2nd 275; State v. Sweeney, 40 N.J. 359, 192 A.2nd 875; Note: 47 ALR2nd 570.
We further hold that a complaint charging the defendant with a violation of Title 14, Navajo Tribal Code, Section 246 by driving while under the influence of intoxicating liquor is sufficient to notify the defendant of the nature of the charge and that under such a complaint the proof is sufficient if the defendant is shown to be in the actual physical control of the vehicle.
The judgment of this Court is that the defendant is sentenced to labor for a period not to exceed thirty (30) days or in lieu of labor to serve the same time in jail. The Trial Court judgment is modified and the fine returned.
BENALLY, Associate Justice, and BENNALLEY, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502983/ | OPINION
Opinion delivered by
CADMAN, Associate Justice.
Two issues are the subject of this opinion: 1) whether the Chinle Family Court abused its discretion when it awarded spousal maintenance to the Appellee; and 2) whether the Chinle Family Court abused its discretion when it awarded attorney’s fees to the Appellee. Five other assignments of error were decided in our March 7,1997 memorandum decision. We affirm the family court’s decisions on spousal maintenance and attorney’s fees.
I
The parties began living together in 1969 and obtained a marriage license in October, 1974. Their only child was bom in 1977 and is over the age of eighteen. The child attends post-secondary school and resides with the Appellee, Julia Naize, when not in school. The child has chronic skin problems.
The final divorce decree was filed on March 22,1996. The court awarded the Appellee the following: a homesite lease; most of the home furnishings (beds, dressers, lamps, tables, chairs, couch, television set, wood stove, stereo, washing machine and dryer, and air conditioner); silversmithing tools; assorted tools and boxes; livestock racks; a flatbed trailer; a 500-gallon water tank; an automobile engine; a camper shell; and a chainsaw. The Appellant received a bed, lazy-boy chair, locksmithing tools, television set, washing machine and dryer, and a Native American Church drum. The community debts were fairly divided.
The court awarded the Appellee $200.00 per month in spousal maintenance for three years after finding that she was 58 years of age, uneducated, in poor health, *270had two medical operations, was in constant need of medical attention, and needed reliable transportation. The Appellant was further ordered to deliver a truckload of firewood and coal to the Appellee during the months of November, December, January and February of each year, beginning the fourth year, for an indefinite time period.
At the final hearing, the Appellee introduced the following evidence: she has tuberculosis related health problems; she has a foot problem that needs special shoes; she cannot walk or stand without pain; she needs assistance to get upright; she has chronic back pain and pain from two surgeries; she uses traditional Navajo healing ceremonies; she is not employable; she cannot weave rugs anymore; she stayed home to raise her son while her husband worked; and she helped her husband with many tasks during their marriage. The Appellant did not controvert any of this evidence.
On her request for attorney’s fees, the Appellee introduced evidence of her unemployability, inability of self representation due to illiteracy, necessity of borrowing money to hire counsel, and her preliminary opposition to the divorce petition. Again, none of this evidence was contradicted. The family court found a special set of circumstances from the evidence and awarded the Appellee her attorney’s fees of $675.00.
II
Spousal Maintenance
A
A review of this Court’s past spousal maintenance decisions is relevant to the issue before us. In the first reported decision, Johnson v. Johnson, 3 Nav. R. 9 (1980), the Court was asked to pinpoint the source of the Navajo Nation courts’ authority to award spousal maintenance. After failing to find a Navajo Nation statute specifically authorizing it, the Court relied on the choice of law statute to rule that “nothing in Navajo tradition or custom would prohibit [the Navajo Nation courts] from applying New Mexico law [or state law] pursuant to 7 NTC § 204” to award alimony. Id. at 11. Subsequently, in Charley v. Charley, 3 Nav. R. 30 (1980), the Court was asked for the appropriate standard applicable to the issues of whether spousal maintenance should be awarded and, if so, its amount. Again, the Court looked outside our jurisdiction to hold that the law of the state “where the spouse and children reside will determine the standard for alimony until the Tribal Council or this Court sets other standards.” Id. at 31. New Mexico guidelines, six in all, were applied to the facts of that case. Id. In the latest decision, we “set additional guidelines” for the Navajo Nation courts to apply in “a fair and reasonable manner” when awarding spousal maintenance. Sells v. Sells, 5 Nav. R. 104, 106 (1986). We retained Charley’s guidelines, but overruled its holding that the law of the state in which the spouse and children reside should determine our spousal maintenance *271issues. Id. at 106-107. The Court foresaw confusion and forum shopping as the laws of three different states could be applied to spousal maintenance issues in the Navajo Nation. Id. at 108. The Court underscored the need for “uniformity, consistency and predictability in developing Navajo law.” Id.
The parties before us apparently agree the guidelines in Sells give our courts adequate direction when addressing spousal maintenance issues. Questions, however, were directed at the authority of the Navajo Nation courts to award spousal maintenance following the Navajo Nation Council’s 1985 revision of the choice of law statute, 7 N.N.C. § 204, this Court’s overruling of the Charley holding, Sells, 5 Nav. R. at 107, and this Court’s statement in Sells that “[sjtate laws do not control domestic relations within our jurisdiction.” Id. We address these below.
At the outset, we establish that the Navajo Nation courts, serving as courts of equity, have the general authority to award alimony, particularly in cases where a divorced spouse is “not able to provide for her [or his] own maintenance and that of her [or his] remaining minor children without some sort of financial aid from” the former spouse. Charley, 3 Nav. R. at 10-11. This power exists independent of any Navajo Nation statute on the subject and is justified by the Navajo People’s traditional teachings admonishing not to “throw one’s family away.” Public policy also supports the courts’ exercise of this power. The general lack of economic and employment opportunities on the Navajo Nation, the Nation’s lack of a well educated and skilled labor force, and the Nation’s high divorce rate, which leaves children dependent on one spouse or relatives, all underlie the many requests to the courts for spousal maintenance.
The Navajo Nation courts’ authority to award spousal maintenance was first challenged in Charley. “Whether the Courts of the Navajo Nation are empowered to award alimony.” 3 Nav. R. at 9. The Court did not find a Navajo Nation statute granting our courts such authority and that is still the case today. Id. at 10. While section 204 authorized use of Navajo common law, the Court in Charley apparently did not choose that route. Instead, it went directly to state spousal maintenance law, and found it applicable as long as Navajo custom or tradition did not prohibit its use in a Navajo Nation case. Id. at 10-11. While we do not fault the Court’s choice, we believe Navajo common law does authorize our courts to award spousal maintenance.
The Navajo People’s segmentary lineage system (clanship system) is the foundation of Navajo Nation domestic relations law. The system itself is law. Traditional Navajo society is matrilineal and matrilocal, which obligates a man upon marriage to move to his wife’s residence. The property the couple bring to the marriage mingle and through their joint labors create a stable and permanent home for themselves and their children. The wife’s immediate and extended family benefit directly and indirectly, in numerous ways, from the marriage.
If the marriage does not survive, customary law directs the man to leave with his personal possessions (including his horse and riding gear, clothes, and religious items) and the rest of the marital property stays with the wife and children *272at their residence for their support and maintenance. Whatever gains the marital property generate goes to support the wife and children and to a lesser extent the wife’s close relatives. This longstanding customary law is akin to modem spousal maintenance. Therefore, we conclude that Navajo common law gives the Navajo Nation courts’ authority to award spousal maintenance in appropriate cases even in the absence of statutory law on the subject. Our laws require our courts to apply Navajo common law equally to both spouses when addressing spousal maintenance issues.
In the Judicial Reform Act of 1985, the Council made a minor change to section 204(c) (the choice of law statute). Pre-1985 language said the Navajo Nation courts “shall” apply state law to matters not covered by Navajo common law, Navajo Nation statutes, or applicable federal law. The 1985 amendment changed the word “shall” to “may” and thereby made application of state law discretionary with the Navajo Nation courts. Sells, 5 Nav. R. at 108. We conclude that the 1985 revision did not overrule or alter Charley's reliance on New Mexico law to find a grant of authority to the Navajo Nation courts.
Finally, this Court’s statement in Sells, id. at 107, that “[sjtate laws do not control domestic relations within” the Navajo Nation was made in the context of eliminating the need to resort to three separate state standards on spousal maintenance. It did not overmle Charley’s use of state law as authority to award spousal maintenance. Nonetheless, as stated previously, Navajo common law grants our courts power to award spousal maintenance.
B
The Appellant argues that the Chinle Family Court abused its discretion when it awarded to the Appellee spousal maintenance. The Appellant essentially argues that the Appellee’s evidence does not satisfy any of the factors set forth in Sells, id. at 106. We disagree. The Appellee’s evidence in support of her request is not controverted, satisfies Sells’ guidelines, and strongly shows a need for an award of spousal maintenance.
The Appellee is a 58 year-old elderly Navajo lady who was married to the Appellant for 22 years. She is uneducated and unemployable. Poor health and illiteracy make her a poor prospect for vocational training or other training to acquire meaningful employment skills. Her poor health prevents her from weaving rugs or raising livestock to support herself and her son. She earns no wages and chances that she will acquire capital assets are nonexistent. She is in constant need of medical attention. She had two operations, cannot move freely without pain, has tuberculosis related health problems, has a foot disorder which requires special needs, and needs funds for traditional ceremonies. She contributed to the marriage, as wife, mother, and homemaker, while the Appellant worked outside the home. The parties’ only child lives with her and needs her support. She needs transportation to get medical care. Under these facts, we cannot find a better applicant for an award of spousal maintenance.
*273A party seeking spousal maintenance should not have to satisfy every element in Sells, id., before a court grants his or her request. Just enough evidence to tip the scale in favor of an award of spousal maintenance is all we require. The trial court has discretion to decide what is sufficient evidence and we find no abuse of discretion here. We affirm the family court’s award of spousal maintenance to the Appellee.
The Appellant does not dispute the amount of the spousal maintenance award and we do not address it. The time period that the Appellant is obligated to make monetary payments is also not an issue. The only other matter is the family court’s order that the Appellant must supply the Appellee with wood and coal for an indefinite time period. We reverse this part of the spousal maintenance award because it violates that Navajo common law rule which requires finality in Navajo divorces. Harmony in the community and in the lives of the divorced spouses should be restored quickly following a divorce. Apache v. Republic National Life Insurance Co., 3 Nav. R. 250, 254 (Window Rock D. Ct. 1982). We rely on the teachings of Apache:
There was a principle of finality in Navajo customary divorce, and the principle of restoring harmony in the community by quickly and finally breaking ties so the community can soon return to normal is one which is commonsense. To permit a former spouse to keep such ties that she or he may be said to be lurldng behind the hogan waiting to take a portion of the com harvest is unthinkable, since each spouse returns to his or her own family after the divorce. Each foimer spouse should return home after making the break and disturb others no more.
Id. at 254. Also, it is not fair to require the Appellant to supply wood and coal for life, while he is obligated to pay spousal maintenance for only three years.
Ill
Attorney’s Fees
The Navajo Nation courts are permitted to award reasonable attorney’s fees to a party to a divorce action after assessing the parties’ financial resources. John v. Herrick, 5 Nav. R. 129, 131-132 (1987); Morgan v. Morgan, 5 Nav. R. 64, 65 (1985). The issues of whether an award should be made and its amount are matters best left to the discretion of the trial court. Morgan, 5 Nav. R. at 65. In this case, the family court found sufficient facts which justified an award of attorney’s fees: the Appellee borrowed money to retain an attorney to defend against the petition; the Appellee is unemployed and unemployable for different reasons; the Appellee is illiterate and therefore unable to represent herself; initially, the Appellee did not want a divorce; and the Appellant has adequate resources to pay the Appellee’s attorney’s fees. We do not find an abuse of discretion under these facts. The family court’s award of attorney’s fees to the Appellee is affirmed.
*274IV
Mandate
The Chinle Family Court is directed to carry out proceedings and enter orders consistent with this opinion and this Court’s memorandum decision filed on March 7, 1997. This case is final for purposes of appellate litigation. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502984/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
In 1994, Atkinson Trading Company, Inc. (Atkinson) sought a federal district court declaratory judgment claiming that the Navajo Nation cannot impose a hotel occupancy tax on its non-Indian guests and require it to collect and remit that tax to the Navajo Nation. Atkinson Trading Co. v. Navajo Nation, 866 F. Supp. 506 (D.N.M. 1994). The court declined to consider that issue and properly sent the question to the Navajo Nation forum to “evaluate tribal law in light of existing federal law,” trusting that “[t]here is every reason to expect that the Navajo Nation will grant plaintiff a fair, unbiased consideration of its arguments about why the Hotel Occupancy Tax should not be imposed on plaintiff’s operations.” Id. at 512.
The Navajo Tax Commission (Commission) considered Atkinson’s claims and, after applying the tests in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982), and Montana v. United States, 450 U.S. 544, 565-66 (1981), ruled that Atkinson was subject to provisions of the Navajo Nation Hotel Occupancy Tax, to help defray the costs of Navajo Nation governmental services which benefit Atkinson and its guests. Atkinson appeals. The sole issue we address is whether Atkinson is subject to provisions of the Navajo Nation Hotel Occupancy Tax for the rental of rooms at a facility located on non-Indian fee land within the exterior boundaries of the Navajo Nation. In other words, does existing federal law preclude the Navajo Nation from applying its hotel tax to non-Navajo tourists lodging on non-Indian fee land and requiring Atkinson to collect and remit that tax?
*276I
On July 30, 1992, the Navajo Nation Council enacted the Navajo Nation Hotel Occupancy Tax, 24 N.N.C. §§ 101-142 (1995), which became effective on January 1, 1993. It is imposed on all guests who rent hotel rooms within the exterior boundaries of the Navajo Nation. The hotel proprietor must collect, remit and report the tax to the Navajo Nation. 24 N.N.C. §§ 102, 104. The proprietor can keep “one percent of the amount of the tax due as shown on the return” as reimbursement for its tax collection costs. 24 N.N.C. § 109. The tax is used to promote tourism and develop tourism-related projects in the Navajo Nation. 24 N.N.C. § 142. The Commission administers the tax. 24 N.N.C. § 108.
Atkinson, a New Mexico Corporation with a principal place of business at Gallup, New Mexico, operates a facility known as the Cameron Trading Post at Cameron, Navajo Nation (Arizona), within the exterior boundaries of the Navajo Nation. The facility is located on non-Indian fee land and completely surrounded by Navajo Nation trust lands. See Act to Define the Exterior Boundaries of the Navajo Indian Reservation in Arizona and for Other Purposes, 48 Stat. 960-62 (June 14, 1934) (1934 Boundary Act). The facility caters to the tourist trade, with a hotel, restaurant, cafeteria, gallery, curio shop, retail store and recreational vehicle park. It is near the east entrance to the Grand Canyon.1 The guests who stay at the hotel and use the facilities are primarily non-Navajo tourists. They are required to pay a tax for their room, which Atkinson must collect and remit to the Navajo Nation.2
The Commission found that guests are served by Navajo employees of the facility, who are 75 to 80% of Atkinson’s work force. Guests get goods brought by suppliers who enter and travel across the Navajo Nation to reach Atkinson’s facility. That includes Navajo arts and crafts which Atkinson buys from off-reservation sources. Atkinson stopped buying arts and crafts from Navajo artisans in 1995, apparently to avoid direct contact with Navajos and to avoid Navajo Nation regulation. A small amount of sales are made to Navajo Nation members.
The Navajo Nation Police, the primary law enforcement agency in the Cameron area, and the Navajo Nation Fire Department, protect the tourists and Atkinson’s facility. Both respond to emergency calls, including 911 calls, from tourists and local residents. The police routinely patrol and perform security checks in the area, including Atkinson’s facility, which benefit tourist safety and security. The police respond to accidents involving non-Indian tourists and call Navajo Nation emergency medical services for them when needed. The Navajo *277Nation Division of Health protects the health of guests by inspecting food preparation conditions, not only in the Cameron area, but throughout the Navajo Nation. The Navajo Nation Tourism Department serves guests by telling them of the attractions of the Navajo Nation and provides facilities, and that function also serves Atkinson. As a general matter, the Navajo Nation government funds many lands of activities which benefit Atkinson and its guests, including economic development ventures, human resource programs, natural resource development (including parks and scenic sites), public safety, health services, social services, education, and legislative and judicial services.
In sum, Atkinson and Cameron, as an (Indian) trading “company” or “post,” operate in a Navajo environment and use Navajo trappings to lure tourists. Those tourists and the facility benefit from a wide range of Navajo Nation governmental services.
II
At the outset, Atkinson concedes that anyone lodging on trust lands and Navajo Nation members lodging on non-Indian fee lands can be charged a Navajo Nation hotel tax. Appellant’s Brief at 6. But as to non-members renting rooms on non-Indian fee lands, Atkinson claims that the Navajo Nation has no power to impose its hotel tax or require non-member businesses to collect and remit that tax. Apparently, Atkinson is willing to collect and remit the tax if it is imposed on Navajo Nation members only at its facility.
Atkinson has resisted regulation as an entity doing business in Indian Country before. In Ashcroft v. United States, 679 F.2d 196 (9th Cir. 1982), Atkinson (then an Arizona corporation and doing business as Gilbert Ortega’s Cameron Trading Post) opposed federal regulation as an Indian trader under the Indian Trader Statutes, 25 U.S.C. §§ 261-264. There, as here,3 Atkinson claimed that its lands “either existed before the creation of the [Navajo] Reservation or were withdrawn from the reservation after its creation.” Ashcroft, 679 F.2d at 198, n.1. Therefore, Atkinson claimed the United States had no authority to regulate its trade on fee land within the exterior boundaries of an Indian reservation because it was “not on the reservation.”4 Id. at 198 (emphasis added). The court disagreed, finding that federal business regulations defining on-reservation activities, and the doctrine of inherent tribal sovereign power proclaimed in several
*278United States Supreme Court decisions,5 compelled a ruling that business activities conducted on fee land within the exterior boundaries of a reservation were in fact “on” reservation conduct which could be regulated by either the United States or an Indian nation. Id. at 199-200. The court explained that “Indian tribes retain inherent sovereign power to act in accordance with the authority recognized in this regulation with respect to all land within the exterior boundaries of the reservation whether it be fee patent, tribal or trust property.” Id. at 199, n.2.
The General Allotment Act of 1887,24 Stat. 388 (February 8, 1887), was one of the most oppressive and destructive pieces of Indian legislation ever enacted by Congress. It stripped Indian nations of at least two-thirds of their land base and forced many Indian people into hopelessness and destitution. Congress recognized its mistake and passed the Indian Reorganization Act of 1934 (IRA), 48 Stat. 984-88 (June 18, 1934), which, among other things, ended the allotment policy. Section 5 of the IRA authorizes the Secretary of the Interior to acquire lands and land rights “for the purpose of providing land for Indians,” and section 7 authorizes the Secretary to “add... lands to existing reservations.”6 The Navajo People reserved to themselves a minute portion of their aboriginal homelands in the 1868 Navajo Treaty, 15 Stat. 667 (June 1, 1868). The 1868 Treaty is significant here for two reasons: it defines the original Navajo Reservation (an “existing reservation” referred to in section 7 of the IRA), and it proclaims the Navajo Nation’s retained inherent sovereign authority over the exterior boundaries of its territory — then and now.
In 1934, Congress, anticipating that the IRA would restore land to existing Indian reservations and correct the abuses of the General Allotment Act, passed the 1934 Boundary Act “[t]o define the exterior boundaries of the Navajo Indian Reservation in Arizona....” 48 Stat. 960. The 1934 Boundary Act brought the Cameron area back into the territorial jurisdiction of the Navajo Nation, and included the subject fee land within the exterior boundaries of the Navajo Nation. Therefore, Atkinson’s facility is located within Navajo Indian Country, which is defined as follows:
The territorial jurisdiction of the Navajo Nation shall extend to Navajo Indian Country, defined as all land within the exterior boundaries of the Navajo Indian Reservation or of the Eastern Navajo Agency, all land within the limits of dependent Navajo Indian Communities, all Navajo Indian allotments, and all other land held in trust for, owned in fee by, or leased by the United States to the Navajo Nation or any Band of Navajo Indians.
7 N.N.C. § 254 (1995).
*279This definition of Navajo Indian Country is derived from the federal statutory definition of “Indian Country,” 18 U.S.C. § 1151.7 Navajo Nation Council Resolution No. CMY-28-70 (May 7, 1970). In Ashcroft, the court applied federal regulatory definitions of what it means to be “on” an Indian reservation or within Indian Country, and concluded that Atkinson was indeed doing business “on” the Navajo Reservation or within Navajo Indian Country. 679 F.2d at 198-200.
Indian Country includes “all land within the limits of any Indian reservation ... notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.” 18 U.S.C. § 1151 (a). The Indian Country statute is the measure of tribal civil authority. See DeCoteau v. District County Court, 420 U.S. 425 (1975); Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531 (10th Cir. 1995). The Tenth Circuit Court of Appeals held in Watchman-. The Indian Country statute “represents an express Congressional delegation of civil authority over Indian country to the tribes.” 52 F.3d at 1541. Consequently, the court found that “the Navajo Nation has the authority to tax any mining activities taking place in Indian country without violating any express [federal] jurisdictional prohibitions.” 52 F.3d at 1541. Accordingly, Atkinson’s fee land is in the Navajo Nation, and its business activities, including the renting of hotel rooms to non-Indian tourists, takes place within Navajo Indian Country.
Ill
Despite Atkinson’s physical presence within the Navajo Nation, as well as the entry of non-Navajo tourists,8 does the Navajo Nation have the lawful power to tax guests or require Atkinson to collect that tax? The Navajo Nation enjoys governmental authority over its territory, as does any sovereign. The federal courts have agreed, particularly with respect to Indian nation taxing power. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 142 (“there is a significant territorial component to tribal power... [including]... Indian taxing power....”); Buster v. Wright, 135 F. 947, 950 (8th Cir. 1905), appeal dismissed, 203 U.S. 599 (1906) (a tribe may prescribe the terms upon which non-Indians conduct business within its borders). Thus, the general principle is Indian nations have the inherent power to tax using their general governmental authority, except to the extent congress has expressly limited that power, and that governmental authority includes taxation of non-Indians who are present within Indian Country. Felix S. Cohen, Handbook of Federal Indian Law 431-35 (1982 ed.); Washington v. Confederated Tribes, 447 U.S. 134, 152-54 (1980).
In 1893, a federal appeals court considered the issue of whether the Creek *280Nation could use the federal courts to collect a tax it imposed on a non-Indian resident of its territory. Crabtree v. Madden, 54 F. 426, 428 (8th Cir. 1893). While the question of the Indian nation’s authority to tax non-Indians was not before it, the court noted a “presumption” that the Creek Nation lawfully imposed its tax and had the lawful authority to collect the tax using its own remedies. Id. at 429. The same court ruled in a subsequent case that Indian nations have inherent authority to tax non-Indians present and doing business within its territory. Buster v. Wright, 135 F. 947, 950, 958.9 There, the Creek Nation imposed a permit tax on non-Indians doing business on non-Indian fee land within the Nation’s territory. Id. at 949-950. The court affirmed the Creek Nation’s power to tax:
The authority of the Creek Nation to prescribe the terms upon which noncitizens may transact business within its borders did not have its origin in act of Congress, treaty, or agreement of the United States. It was one of the inherent and essential attributes of its original sovereignty. It was a natural right of that people, indispensable to its autonomy as a distinct tribe or nation, and it must remain an attribute of its government until by the agreement of the nation itself or by the superior power of the republic it is taken from it.
Id. at 950.
On the question of the Creek Nation’s jurisdiction over the non-Indian lots, the court said, “the jurisdiction to govern the inhabitants of a country is not conditioned or limited by the title to the land which they occupy in it, or by the existence of municipalities therein endowed with power to collect taxes for city purposes....” Id. at 951. That is because:
Neither the United States, nor a state, nor any other sovereignty loses the power to govern the people within its borders by the existence of towns and cities therein endowed with the usual powers of municipalities, nor by the ownership nor occupancy of the land within its territorial jurisdiction by citizens or foreigners.
Id. at 952. Despite non-Indian arguments that their businesses could not be taxed because the lots and town sites had been withdrawn from Creek Nation jurisdiction, the court applied the rule that “the governmental power of a nation is not limited to the occupants of the lands in its country which the nation itself owns, but extends to all the inhabitants of its territory.” Id. at 952. Unlike the Navajo Nation, the Creek Nation acquired its lands by “a patent from the United States,” but the court deemed irrelevant the method of acquisition, because the Nation had full jurisdiction over those lands as guaranteed by its treaties with the United States. Id. at 952-53.
The United States Supreme Court decided the issue of the Indian nations’ power to tax non-Indians in Washington v. Confederated Tribes, 447 U.S. 134. *281There, the State of Washington contended that the Colville, Makah, and Lummi Nations had “no power to impose their cigarette taxes on nontribal purchasers.” Id. at 152. The Court disagreed:
The power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status.10
Id. (citation omitted). Although fee lands were not implicated, it is significant that the Court used a historical approach to conclude that “federal law to date has not worked a divestiture of Indian taxing power.” Id. at 152. The Court bolstered its decision by citing with approval 1881,1855 and 1900 Attorney General opinions and consistent Executive Branch recognition of Indian nations’ power to tax. Id. at 152-53. The Court also concluded that the power to tax, including the taxation of non-Indians, was a power under “existing law” confirmed by section 16 of the IRA. Id. at 153. Moreover, the- Court approved a 1934 Interior Department Solicitor’s opinion, Powers of Indian Tribes, 55 ID 14, 46 (1934), which concluded as follows:
Chief among the powers of sovereignly recognized as pertaining to an Indian tribe is the power of taxation. Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions.
477 U.S. at 153 (emphasis in original).
One remaining question was the source of Indian nation taxing power: Did it hinge upon the power to exclude nonmembers from the tribe’s territory or was it an inherent sovereign power? That issue was resolved in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 136-37, where the tribe imposed an oil and natural gas severance tax upon non-Indian owned oil firms that had obtained long term drilling leases for tribal land. The Supreme Court said, “[w]e disagree with the premise that the power to tax derives only from the power to exclude.” Id. at 137. The Court elaborated:
The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-goverment and territorial management. This power enables a tribal government to raise revenues for its essential services. The power does not derive solely from the Indian tribe’s power to exclude non-Indians from tribal lands. Instead, it derives from the tribe’s general authority, as sovereign, to control economic activity within its jurisdiction, and to defray the cost of providing governmental services by requiring con*282tributions from persons or enterprises engaged in economic activities within that jurisdiction.
Id. (citation omitted).
Several significant general principles on Navajo Nation taxing power can be gleaned from these Indian nation taxation cases: 1) the Navajo Nation’s power to tax is an essential and inherent attribute of its original sovereignty and that power remains intact until divested by federal law; 2) the Navajo Nation’s taxing power extends over its territorial jurisdiction (Navajo Indian Country), which includes trust land, allotments and fee lands; and 3) the Navajo Nation’s power to tax extends to all persons who enter its territorial jurisdiction, including over nonmembers who engage in activities, economic or otherwise, within that jurisdiction. We now turn to Atkinson’s argument that the Navajo Nation does not have the power to “tax transactions between nonmembers on fee lands and to require nonmember businesses to collect and remit such taxes.” Appellant’s Brief at 6.
A
The United States Supreme Court recently ruled that Montana v. United States, 450 U.S. 544, provides the controlling rule of law for deciding issues similar to the one before us. Strate, et al. v. A-l Contractors, et al., 520 U.S. 438, 137 L. Ed. 2d 661 (1997). The Court summarized Montana’s general rule as follows:
[Ajbsent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe’s political integrity, economic security, health, or welfare.
Id. at 446.
Relying on Montana, Atkinson argues that language in section one of the 1934 Boundary Act “expressly limited Navajo control” over its fee land. That language states as follows: “All valid rights and claims initiated under the public land laws prior to approval hereof involving any lands within the area [the Arizona portion of the Navajo Indian Reservation] so defined shall not be affected by this Act.” We disagree with Atkinson. Congress must clearly and unequivocally state in a federal statute that it has divested an Indian tribe of its retained inherent sovereign power. See Bryan v. Itasca County, 426 U.S. 373, 392 (1976); State of Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 702 (1st Cir. 1994). Nowhere in the 1934 Boundary Act has Congress unequivocally expressed its intent to divest the Navajo Nation of its inherent taxing power. The United States Supreme Court’s conclusion in Washington v. Confederated Tribes still rings true today: “The widely held understanding within the Federal Government has always been that federal law to date has not worked a divestiture of Indian taxing power.” 447 U.S. at 152. Also, a proper respect both for *283Navajo Nation sovereignty and Congress’ special power in this area rejects any implication that the 1934 Boundary Act implicitly divested the Navajo Nation of its inherent taxing power. Merrion, 455 U.S. at 149-152.
The language in the 1934 Boundary Act that Atkinson relies on does nothing more than reserve the proprietary rights of the fee holders upon expansion of the Navajo Indian Reservation. The language does not contain any special restriction on Navajo Nation governmental power, except to protect the preexisting rights of fee patent holders. Ashcroft put it aptly: “This would appear to mean simply that the tracts [non-Indian fee lands within the Navajo Nation] are neither tribal nor trust property. There is no indication in the record that the tracts in question differ in any way from other non-Indian fee land within a reservation.” 679 F.2d at 198, n.l. Atkinson’s fee land is undistinguishable from other non-Indian fee land within Indian reservation boundaries which other cases have found to be under tribal civil jurisdiction. See, e.g., United States v. Mazurie, 419 U.S. 544 (1975).
B
Montana’s rule that the Court summarized in Strate is this:
To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements, (citations omitted). A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.
450 U.S. at 565-66 (citations omitted).
Montana’s rule instructs that Indian nations “retain inherent sovereign power” over non-Indian conduct on non-Indian fee land within the borders of an Indian nation if the non-Indian “enterfs] consensual relationships with the tribe or its members.” 450 U.S. at 565. The Court in Strate listed several cases which it said qualified under the consensual relationships exception. 520 U.S. at 457. Two of those cases bear directly on the case before us. The first case, Buster v. Wright, 135 F. 947, has facts remarkably similar to ours.11 There the Choctaw Nation *284imposed a permit tax on non-Indians conducting business on non-Indian fee lands within the Nation’s jurisdiction. The court ruled that the Creek Nation had the inherent sovereign power to tax and prescribe the terms upon which non-Indians may conduct business within its borders. Apparently, the non-Indians met the consensual relationships exception when they accepted the privilege of doing business within the Creek Nation’s borders. In the second case, Washington v. Confederated Tribes, 447 U.S. 134, non-Indians entered consensual relationships with the tribes or their members when they entered the Nations’ jurisdiction to purchase tobacco products from tribal vendors. The Court found the tribal interest in raising revenues for essential governmental services “strongest when the revenues are derived from value generated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services.” 447 U.S. at 156-157 (emphasis ours). The Court elaborated on what it means to be the recipient of tribal services and the concomitant need of tribes to raise revenue to fund those services in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137-138. The Court found Indian nation taxing power essential “to control economic activity within its jurisdiction, and to defray the cost of providing governmental services by requiring contributions from persons or enterprises engaged in economic activities within that jurisdiction.” Id.
Read closely, these three cases reveal a nexus between the non-Indian activity to be taxed and the Indian nation imposing the tax. Thus, to decide whether our case qualifies under Montana’s consensual relationships exception, we ask whether Atkinson and its guests, both of whom transact business within Navajo Nation jurisdiction, receive benefits from the Navajo Nation government “for which it may be taxed.” Burlington Northern R.R. v. Blackfeet Tribe, 924 F.2d 899, 904 (9th Cir. 1991). Stated another way, did Atkinson avail itself “of the substantial privilege of carrying on business” within the Navajo Nation, or did Atkinson and its guests “benefit from the provision of police protection and other governmental services, as well as from the advantages of a civilized society” that are assured by the Navajo Nation government? Merrion, 455 U.S. at 137-138 (internal quotation marks omitted). The facts in the record demand an affirmative answer.
Just like the non-Indians in Buster v. Wright, 135 F. 947, our case’s facts show that Atkinson has availed itself of the substantial privilege of carrying on business within Navajo Nation jurisdiction. Atkinson’s facility is located and operates within Navajo Nation jurisdiction or Navajo Indian Country. These facts are bolstered by the federal court’s ruling that Atkinson is subject to federal laws regulating trade with Indians on Indian lands, because it operates on the Navajo Nation as an Indian trader. Ashcroft, 679 F.2d 196. Atkinson uses a Navajo Indian environment, including culture, Navajo employees, crafts, and other Navajo Indian trappings, to lure tourists to its facility for business purposes. While on Atkinson’s property, the tourists are served by Navajo employees, who make up a majority of Atkinson’s work force, to provide a distinctly Navajo flavor. *285Suppliers enter and drive across the Navajo Nation to bring Atkinson and its guests goods, because Atkinson has accepted the privilege of doing business on the Navajo Nation.
Moreover, a non-Indian was held to have met the consensual relationships exception simply by engaging in commercial activity with tribal members. Cardin v. DeLa Cruz, 671 F.2d 363, 366 (9th Cir. 1982). Here, Atkinson has purchased arts and crafts from Navajo tribal members and sales have been made to tribal members. Furthermore, Atkinson has even suggested that it might be subject to Navajo Nation labor laws because it employs a large number of Navajo tribal members. Appellant’s Brief at 19.
Atkinson and its guests receive and benefit from many modem Navajo Nation governmental services, or from the advantages of a civilized society that are assured by the Navajo Nation government. The Navajo Nation police respond to calls from Atkinson’s guests and the Cameron Trading Post and perform routine security checks on Atkinson’s facility. The Navajo Nation Fire Department responds to alarms and calls from Atkinson’s guests and the Cameron Trading Post. The Navajo Nation Emergency Medical Services provides medical services to Atkinson’s guests when needed. The Navajo Nation government provides other services to Atkinson and its guests including health protection through the Navajo Nation Division of Health, tourism services through the Navajo Nation Tourism Department, and as a general matter economic ventures, human resource programs, natural resource development, public safety, health services, social services, education, and legislative and judicial services.
Accordingly, we hold that the facts of this case qualify it under Montana’s consensual relationships exception. “Under these circumstances, there is nothing exceptional in requiring [Atkinson and its guests] to contribute through taxes to the general cost of [Navajo Nation] government.” Merrion, 455 U.S. at 138-39 (citations omitted).
The other minor issue we address is the contention that somehow tourists and Atkinson are “just passing through” and the Navajo Nation has no material interest in that activity which would justify taxation. That argument was raised in Burlington Northern R.R., 924 F.2d at 902, where the Blackfeet Nation imposed a possessor interest tax upon a railroad which had a statutory right-of-way through the Nation. The court dismissed the claim finding that the Nation had a significant interest because “Burlington is the recipient of tribal services.” Id. at 904. Nothing further need be said on this minor issue.
C
The Strate decision reiterated the second Montana test for civil jurisdiction, namely there is tribal civil jurisdiction aside from consent where the non-Indian’s conduct “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 520 U.S. at 457, 137 L.Ed. 2d at 678 (internal quotations and citations omitted). The conduct need *286only “threaten” those Indian nation interests. What then are the Navajo Nation’s political integrity, economic security, and health and welfare interests with regard to an Indian trading post and associated hotel operating within Navajo Indian Country?
Taxation, that indispensable element of any government, surely has everything to do with the Navajo Nation’s political integrity. A sovereign nation that cannot raise revenues to conduct governmental operations cannot function. Aside from the need to raise revenue to fund essential governmental services, Merrion, 455 U.S. at 137, taxation is a method of business regulation. A hotel occupancy tax is utilized to determine and project the number of tourist visits each year. Funds are then channeled to those governmental programs which benefit tourists, including police and fire protection, medical treatment, health inspections, tourism information, tourist facilities, and others.
The economic security element is similar. The Navajo Nation is seeking self-reliance and economic security through taxation. The present national trend is to shift the financial obligations of governance and government services from the federal government to the states. Public services which were formerly provided by the federal government are now the states’ responsibility. The states can readily assume those obligations because of their strong tax bases. Unlike the states, the Navajo Nation just recently began building its tax base, and the hotel occupancy tax contributes to that foundation.
The Navajo Nation’s health and welfare interests are also implicated. The Navajo Nation assumed the responsibility of the Indian Health Service to assure public health in the form of housing code regulation, health inspections, and providing public health services to Atkinson’s guests. The “welfare” interest is used here in the sense of protecting the public welfare, as has been previously elaborated in this opinion.
The second Montana exception also implicates Indian nation police power. Navajo Nation police power is the power to:
adopt such laws and regulations as tend to prevent the commission of fraud and crime, and secure generally the comfort, safety, morals, health, and prosperity of its citizens by preserving the public order, preventing a conflict of rights in the common intercourse of the citizens, and insuring to each an uninterrupted enjoyment of all the privileges conferred upon him or her by the general laws.
Black’s Law Dictionary 1041 (5th ed. 1979). Cameron, Navajo Nation (Arizona) is not a “hole” within Navajo Nation territorial jurisdiction. The Navajo Nation has responsibilities to everyone who is present within its jurisdiction. The 1868 Navajo Treaty, in Article II, reserves authority to the Navajo Nation to admit non-Navajos or not and the United States specifically agreed that no person (with certain exceptions) “shall ever be permitted to pass over, settle upon, or reside *287in” the reservation. If we were to accept Atkinson’s argument that the Navajo Nation lacks power over it and its guests, that would compromise the “pass over” authority reserved in the Treaty. Congress chose to add the area which includes Cameron to the Navajo “Reservation” in 1934, so all the provisions of the 1868 Treaty apply to that area.
IV
The Navajo Nation Hotel Occupancy Tax generally applies to the class of hotel-keepers within the Navajo Nation. There is no justifiable reason to exclude Atkinson’s facility from the tax. It would not be fair to other places of lodgings to exclude Atkinson while it accepts all the benefits of Navajo Nation governmental services without paying its fair share of the cost. We conclude that the incidence of the Navajo Nation Hotel Occupancy Tax is primarily upon tourists within Navajo Indian Country; there is no explicit federal prohibition against taxing Atkinson’s non-Indian guests; and the Navajo Nation has the power and authority to require Atkinson to collect and remit the tax. We affim the decision of the Navajo Tax Commission.
. We take judicial notice that the Cameron Trading Post sits near the junction of U.S. Highway 89 and Arizona Route 64, which goes to the Little Colorado River (Navajo Nation) Tribal Park and enters Grand Canyon National Park. See, Map 44, Parks and Sacred Places, James M. Goodman, The Navajo Atlas 88 (1982). The record does not disclose the history of Cameron Trading Post in the area. We also take judicial notice that it is significant that the business, operating under the names “trading company” and “trading post” and headquartered in Gallup, New Mexico, is based on a longstanding history of using Indian trading posts and Navajo Indians as a lure for tourists.
. The record does not show a tourist challenge to the tax.
. Atkinson says its fee land resembles a donut: “Clearly, the hole in the center of a donut is not a part of the donut and here Congress carved out a hole in tribal jurisdiction when it extended the boundaries of the Navajo Reservation to surround Cameron Trading Post.” Appellant’s Brief at 14.
. The Commission rejected the contention that rulings in the Ashcroft decision bound its decision under preclusion doctrines of res adjudicata or collateral estoppel because the issues in the federal case were different. On appeal, the Commission invites us to apply those preclusion doctrines. Without deciding that question, we prefer to address the merits raised by Atkinson
. Montana v. United States, 450 U.S. 544 (1981); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Kennedy v. District Court, 400 U.S. 423 (1971); and Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976).
. To restate the obvious, the term “reservation” means lands “reserved” by Indian nations or their homelands. It does not mean (at least in the Navajo Nation context) a generous gift from the United States.
. The United States Supreme Court has held that this federal criminal jurisdiction statute “generally applies as well to questions of civil jurisdiction.” De Coteau v. District County Court, 420 U.S. 425, 427 n.2 (1975).
. Non-Indians are not permitted to “pass over, settle upon, or reside in” the Navajo Nation without proper authorization pursuant to Article II of the 1868 Navajo Treaty.
. It is important to the issue before us that the United States Supreme Court cited Buster v. Wright, id., as authority in Washington v. Confederated Tribes, 447 U.S. 134, 153 (a case dealing with tribes’ power to tax non-Indians), and Montana v. United States, 450 U.S. 544, 566 (a case deciding the issue of a tribe’s power over non-Indian conduct on non-Indian fee land within the borders of a reservation).
. The “trust lands” qualifier is irrelevant to our case, because the court in Ashcroft, 679 F.2d at 200, relied on Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 478 (Montana could not tax fee land within reservation because “checkerboard jurisdiction” would result, which is contrary to statutory Indian jurisdiction law), to reject Atkinson’s claims linking Navajo Nation authority solely to “Indian” lands.
. Atkinson argues that Buster v. Wright, id., does not support the Commission’s decision because, unlike the Navajo Nation, the Creek Nation had not yet lost its inherent right to exclude nonmembers from its reservation. Therefore, the Creek Nation could condition entry and conduct of business on the reservation on the non-member’s agreement to pay a reguired license fee. Appellant’s Supplemental Brief at 8. Atkinson’s argument is faulty. The Creek Nation, a tribe that did not own aboriginal lands in the Indian territory in the first place, was without power to exclude anyone who was in lawful possession of any parcel of land within any town site on its reservation. 135 F. at 950, 952. This lack of power was immaterial because the Creek Nation’s authority to tax business transactions within its borders derived from itse inherent and original sovereignty. Id. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502712/ | KIRK, Chief Justice
This case comes before the Court on an appeal from a judgment of the Trial Court for the Chinle District finding the defendant guilty of possessing and selling wine in violation of Title 17, Navajo Tribal Code, Section 561, and sentencing her to sixty (60) days in jail but suspending the sentence and placing her on probaton for that period.
We have heard the case de novo and find that the evidence *48shows the defendant to be guilty of the crime charged beyond a reasonable doubt. This finding is based entirely upon evidence other than the testimony of the witnesses Homer Bluehouse and Frank Adakai relating to the search of the defendant's home under a search warrant issued out of the Trial Court on March 18, 1371.
The procedure for the issuance and service of a search warrant is set out for us by Title 17, Navajo Tribal Code, Sections 1042, 1043 and 1044. This has been added to by Rule 23 of the Rules of Criminal Procedure for the Navajo Courts adopted on January 1, 1972. A similar rule was in force at the time the search warrant in question was issued. These procedures follow the Civil Rights Act of 1968, relating to the rights of Indians (25 U.S.C., Section 1302(2)) and must be observed. One of the requirements of Title 17, Navajo Tribal Code, Section 1044 is that the search warrant may be served only by a member of the Indian police. The evidence showed that Mr. Bluehouse was a juvenile probation officer and was not authorized to act as a police officer in the case of an adult.
No objection was made to the admission of this evidence in this Court although objection was made in the Trial Court. Rule 23 of the Rules of Criminal Procedure provides that a person affected by an unlawful search and seizure may at any time before or during trial make a motion to suppress the evidence. This the defendant did not do. Where the defendant fails to make such a motion the right to object to the evidence is lost: 29 Am.Jur.2nd 481, Evidence, § 425. Since the evidence other than that obtained by search and seizure is sufficent to *49sustain a conviction we do not decide in this case whether this evidence is admissible under the circumstances.
The judgment of the Trial Court is affirmed and the case is remanded to the Trial Court with directions that the defendant serve the sentence there imposed.
BECENTI, Associate Justice, and YELLOWHAiR, Associate Justice concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502714/ | KIRK, Chief Justice
This case comes before this Court on an original petition for a writ of habeas corpus filed here alleging that the petitioner is wrongfully restrained because of a judgment of the Trial Court for the Chinle District on the 11th day of February, 1972, sentencing the petitioner to forty-five (45) days in jail for driving while intoxicated in violation of 14 N.T.C. § 246.
This is a companion case to In Re Oscar T. Chischilly, Sr., No. A-CR-02-72 decided this day and we deny this petition for the reasons stated in our opinion in that case.
In the present case it has been argued that 14 N.T.C. § 245 providing that the offender "may be" sentenced to labor gives the court the alternative of sentencing the defendant to some other penalty such *54as that provided by 14 N.T.C. § 203. We find no merit in this contention .
The petitioner also argues that a defendant who is given a jail sentence because he is unable to pay a fine has been dented equal protection of the laws in violation of the Indian Civil Rights Act (25 U.S.C., § 1302). We do not find this point to have any connection with the present case.
It is accordingly ORDERED that the petition be dismissed.
BECENTI, Associate Justice, and LEUPP, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502715/ | KIRK, Chief Justice
The Court of Appeals of the Navajo Tribe, Acting Chief Justice, Virgil L. Kirk, Sr., sitting solely heard ora! argument of both parties on the propriety of the Trial Courtis denial of a motion to dismiss filed by counsel for the Navajo Tribe and Wilbur Morgan.
The motion to dismiss was based on the contention that the Court had no jurisdiction to hear the case on its merits by operation of Resolution CJY-70-69 of the Navajo Tribal Council, Sections 2(5) (F) and 2(5) (D).
*56Section 2(5) (F) provides:
"AH cases presently pending before the Advisory Committee of the Navajo Tribal Council shall be transferred to the Trial Courts of the Navajo Tribe, subject to Subparagraph D of this Section",
Subparagraph D of Section 2(5) states in relevant part:
"The Navajo Tribe, by the Tribal Prosecutor, or the applicant may appeal any decision of the Screening Committee or its lawful successor, or Trial Court of the Navajo Tribe ... within the time provided by law for appeals from judgments of the Trial Courts of the Navajo Tribe ..."
Mr. Trujillo appeared before the Screening Committee in 1956 and was denied admission to membership. In 1969 he requested a rehearing of his case to the Advisory Committee. The Tribal Council by its language in Section 2(5) (F) "transferred" all cases pending before the Advisory Committee to the Trial Courts. The Trujillo case was then pending and was also "transferred" to the Trial Court. No provision was made how the transfer should occur; but Mr. Trujillo initiated his action in the Trial Court at Crownpoint on December 18, 1969, since no other provision had been made for transfer. Appellant argues that the case is an appeal and that it was appealed to late, therefore, being cut off Resolution CJY-70-69, however, transferred all cases then pending before the Advisory Committee to the Trial Courts. Mr. Trujillo's case had previously been cut off from *57appeal In 1956. When Mr. Trujillo again placed his request for membership in the hands of the Advisory Committee the fact that he was not denied access to the Committee had the effect of giving him another hearing. By transferring the case to the Trial Court, the Council reopened the case. Reconsideration of Trujillo's case could have been denied either by the Council or the Advisory Committee, but it was not. No time limitation was stated in the Resolution for taking a transferred case to the Trial Court, nor was it made clear whether it was an automatic transfer as the language might be taken to apply or the interested party must hand carry it to the Courts. The limitation of thirty days refers only to cases appealed from the Screening Committee to the Trial Court or from the Trial Court to the Court of Appeals. If the Council meant something other than this, it was not stated in the Resolution nor in the discussion in Council chambers at the time the Resolution was passed. Only the cases which were pending before the Advisory Committee at the time of the Resolution's passage (July 24, 1969) were transferred to the Trial Court. All other cases must be appealed to the Trial Court as outlined in Section 2(5) (D) from a final order of the Screening Committee. Here there was no final order and could therefore be no appeal. This is so because any appeal from prior Screening Committee or Advisory Committee action had already passed its time limitation.
For the above reasons, denial of the motion to dismiss is therefore denied. This case has been heard on its merits in the Trial Court and an appeal on that case is pending before this Court. Because of the nature of the case it is ORDERED that it be a de novo *58or new trial.
The Court of Appeals chastises counsel for the appellee for their late appearance and apologizes to counsel for the appellant for Its own late appearance.
DONE in open Court on the 12th day of MARCH and SIGNED on the 19th day of MARCH 1970. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502717/ | KIRK, Chief Justice
This matter came on for hearing de novo before the Court of Appeals on the 6th day of October, 1971.
The defendant was convicted of violating Section 246, Title 14 of the Navajo Tribal Code (being in actual physical control of a motor vehicle within the Navajo Indian Reservation while under the influence of intoxicating liquor) on February 1, 1971, Case No. WR-TO-131-71 in the Trial Court at Window Rock, Arizona. /The defendant was sentenced *64to pay a fine of one hundred fifty and No/100 ($150,00) dollars or to sixty (60) days in jail. The defendant appealed to the Court of Appeals and the sentence was stayed. The appeal was granted February 3, 1971.
Section 453, Title 7, Navajo Tribal Code, provides that when an appeal is granted, the proceedings on appeal shall consist, not of a retrial, but a new trial before the Chief Justice and two judges of the Trial Courts of the Navajo Nation, other than the judge who heard the case in the trial court.
Mr. Merwin Lynch presented he prosecution's case before the Court of Appeals and presented Officer Allen Thomas, Navajo Patrolman, as the witness against the defendant.
The Officer testified that the observed a vehicle weaving along the highway approximately in the Cross Canyon area and that it was obstructing traffic and that at the time of the defendant's apprehension he smelled of a strong odor of liquor and when he was requested to step down from the vehicle he could not stand alone or without supporting himself by hanging on to the motor vehicle. The Officer, upon determining it was unsafe for the defendant to operate the vehicle, Immediately placed the defendant in the police car and transported him to the jail at Window Rock, Arizona and the vehicle was later brought in to the police compound.
Since the question was raised, it is the opinion of this Court that the "Miranda" warning was unnecessary in this particular case for *65the reason that the facts were self-evident and that the defendant has already incriminated himself by his actions rather than by his words.
The defendant Paul McCabe did not take the witness stand in his own behalf but was represented by Mr. Tom Tso, Tribal Court Advocate from the Navajo Legal Aid Service.
The Court of Appeals having heard the evidence finds that the defendant did violate Section 246, Title 14 Navajo Tribal Code, by driving a motor vehicle within the boundaries of the Navajo Reservation while under the influence of intoxicating liquor. The Court further finds that the penalty for this violation should be in accordance with Section 245(a), Title 14 of the Navajo Tribal Code, wherein the specific penalty for driving while under the influence of intoxicating beverage is set forth as a sentence to labor not to exceed three (3) months.
It is, therefore, the order of this Court that the defendant is hereby sentenced to serve sixty (60) days in jail commencing immediately. The sentence is, however, suspended and the defendant is allowed his freedom on probation upon his signing a pledge of good conduct during the period of the sentence,
BENALLY, Associate Justice, and WILSON, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502719/ | KIRK, Chief Justice
This matter comes before the Court on defendant's motion to re-open the hearing of this case on grounds of new evidence and the plaintiff's motion to "dismiss any further litigation" of this matter.
We hold that this Court has a genera! power to re-open a case before it when such action is necessary to promote justice: Rule 11, Rules of the Court of Appeals adopted March 30, 1972.
*70In the case of a motion to re-open a case on grounds of newly discovered evidence, the Navajo Courts wilt make the following requirements:
The evidence:
"(1) Must be such as would probably change the result on a new trial;
(2) Must have been discovered since the trial;
(3) Must be of such a nature that it could not have been discovered before trial by due diligence;
(4) Must be material; and
(5) Must not be merely cumulative or impeaching.11
Montgomery Ward v. Thomas; (Alaska Supreme Court, 1964) 394 P.2nd 774. See also 48 Am.Jur.2nd 377, New Trial, § 166.
in this case we find that the evidence is directly concerned with the central issue in the case whether or not the defendant was the father of the child in question. It seems clear that the evidence was discovered after the order of April 14, 1971, was made. We believe also that the defendant could not have discovered this evidence sooner considering the difficulty of getting the services of highly trained medical specialists in a special case of this kind. This evidence certainly is material and is not merely an addition to other similar testimony or to impeach witnesses who testified during the original hearing.
it is not necessary to decide in this case whether the one *71year limitation given in Rule 60(b) (2), Federal Rules of Civil Procedure will apply to this case since the defendant's application was made well within one year from the date of the order of April 14, 1971. We believe, however, that Rule 9 of our Rules of Civil Procedure in adopting the Federal Rules of Civil Procedure as to evidence did not include all procedural matters contained in those rules.
We consequently hold that a further hearing of this appeal should be had for the sole purpose of hearing the testimony of the pathologist as to the defendant's physical condition.
The defendant's motion is accordingly allowed for the hearing of this one witness only and the plaintiff's motion to dismiss is denied. In this connection we observe that the plaintiff's motion to dismiss serves no purpose that could not be covered by the opposition to the defendant's motion.
Upon hearing the evidence of Dr. Herman, the pathologist, we find that by the great weight of the evidence the defendant at the time of the conception of the plaintiff's child was physically unable to be the father of a child and for that reason is not the father of the child, Randolph Phillips, the plaintiff's child.
The order of this Court dated April 14, 1971, declaring the defendant to be the father of said child is according reversed and it is directed that the name of said child be changed back to Randolph Phillips *72and that the Agency Census Office at Shiprock, New records accordingly. Mexico, correct its
BECENTI, Associate Justice, and YELLOWHAIR, concur. Associate Justice, | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502720/ | KIRK, Chief Justice
This is an appeal from a final order of the Trial Court in and for the Judicial District of Window Rock, Arizona, dismissing plaintiffs' tort action against the defendant for lack of jurisdiction.
The parties will be referred to as plaintiffs and defendant as they appeared in the lower court.
The facts of the case are simple. Plaintiffs are Navajo Indians *74residing on the Navajo Reservation at Fort Defiance, Arizona. The defendant is non-Indian, residing on the Navajo Reservation at Fort Defiance, Arizona. The action is a civil suit for damages against the defendant non-Indian for an alleged tort committed upon the property of the plaintiffs by the non-Indian defendant.
The only question to be determined is did the Trial Court err in dismissing the cause of action of the plaintiffs against the defendant for lack of jurisdiction. For this reason and in accordance with Rule 3, Rules of the Court of Appeals, an appeal was granted on the question of law.
The plaintiffs, by and through their attorneys and advocates, assure us that the Trial Court of the Navajo Nation had jurisdiction over the non-Indian defendant in this action. We are of the opinion, however, that in their enthusiasm they have failed to recognize the distinction between the political sovereignty of the Navajo Nation and the authority and the power of the Courts of the Navajo Nation. There is a difference and it is one that this Court is bound in law to take notice. As counsel for the defendant pointed out, this difference derives from the principle of separation of powers in governmental functions, a principle to which the Government of the Navajo Nation adheres. The principle operates to confine the authority of each of the branches of government to the authority granted to it by the instrument or instruments creating it.
The inherent sovereignty of the Navajo Nation is too well *75recognized for argument to the contrary, but this is not to say the Navajo Nation has vested all of its judicial authority in the Courts of the Navajo Nation without limitation.
We find that a tribunal for the transaction of judicial business including the Courts of the Navajo Nation can be created only by the supreme power of the government it represents; in our case, the Navajo people acting through their duly elected delegates in the Navajo Tribal Council.
In examining the nature of jurisdiction of courts in general, including our own, we find that jurisdiction does not relate to the rights or convenience of the parties to a judicial action but solely to the authority of the Courts. We also find that the authority of any court, including our own, is derived from the government which created it and such authority to act is limited by the instruments creating it.
The Courts of the Navajo Nation were created by the Navajo Tribal Council Resolution CO-69-58, as amended, now codified as Title 7, Navajo Tribal Code. The extent to which the Court may exercise its authority over the subject matter and the person of the defendant is specifically set forth by the Navajo Tribal Council in 7 N.T.C. § 133. The territorial authority of the courts is set forth by the Navajo Tribal Council, 7 N.T.C. § 134.
The provision of the Navajo Tribal Council of immediate concern is as follows:
*76"The Trial Court of the Navajo Tribe shall have original jurisdiction over all civil actions in which the defendant is an Indian and is found within its territorial jurisdiction. 7 N.T.C. § 133(b)."
In effect, this Court has been requested by the plaintiffs to rewrite its own authority by judicial decision to include authority over non-Indian residents of the Navajo Reservation. If this were permitted, it would be a bold venture into total confusion and it would be a case of the Creature, the Court, dictating to its Creator, the Navajo Tribal Council, the terms of its authority.
It has been erroneously assumed that the Court extended its own authority to include authority over non-Indian defendants in the recent case of the Navajo Tribe of Indian v. Orlando Hilcopter Airways, Inc., decided by this Court January 12, 1972. It was the Navajo Tribal Council that extended the court's jurisdiction in the Forcible Entry and Detainer cases by the adoption of Tribal Council Resolution CN-100-69, codified as 16 N.T.C. § 751, et seq. The Court acquired jurisdiction by virtue of 7 N.T.C. § 133(e): "All other matters hereafter placed within the jurisdiction of the Trial Court by resolution of the Tribal Council."
We can find no comfort in the doctrine of implied consent to the Jurisdiction of the Court in the face of a specific statute of the Navajo T ribal Council limiting the court's jurisdiction to Indian defendants. Nor do we find merit in the contention that by dismissing this action for lack of jurisdiction the Indian plaintiffs are being denied the equal protection of the law when they have access to the court *77having the jurisdiction over the defendants.
This Court is not only dedicated to preserving the intergrity of the indian Court system but the integerity of the government of the Navajo Nation as well.
We conclude; therefore, that the Trial Court was correct in dismissing the case for lack of authority and power to hear and determine it.
We adopt the judgment of the Trial Court.
WILSON, Associate Justice, and YELLOWHAIR, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502722/ | KIRK, Chief Justice
The defendant-appellant was arrested on March 7, 1973, for disorderly conduct (drunk). At the time of the arrest, he was sitting behind the wheel of a 1973 Ford pickup truck.
After he was in custody outside of the truck, one of the arresting officers searched under the seat and in the glove compartment of the truck. A bottle of wine was found in the glove compartment, where upon the defendant was aiso charged and subsequently convicted *88for a liquor violation.
The issue presented is whether a warrantless search of a motor vehicle incident to a lawful arrest constitutes an unreasonable search and seizure in violation of the Indian Civil Rights Act.
This Court holds that if the arrest upon which the warrant-less search is bona fide, and is based upon an offense for which the arresting officer reasonably believes that fruits, instrumentalities, contraband or mere evidence of the crime may be found, the search for these items is proper.
The law governing the search of automobiles and other vehicles is a special area in the law of search and seizure generally.
Because of the mobility of automobiles, enabling their speedy disappearance from the scene of an arrest, their usefulness in the perpetration of crime, specialized rules have been developed by courts for determining the "reasonableness" of the search of an automobile. Without stating all of the conditions under which an auto may lawfully be searched, the law in this case is clear.
If the defendant is arrested in or by his automobile, then his automobile is subject to search for fruits, instrumentalities, contraband or mere evidence of the crime which might assist the police in apprehending or convicting the suspect. Abel v. United States, 362 U.S. 217, 238 (1960); Harris v. United States, 331 U.S. 145 (1947); *89Agnello v. United States, 269 U.S. 20, 30 (1925); Warden-Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967).
It should be emphasized that not every arrest will validate an incidental search of this type. The original arrest must have been for an offense of the type for which some physical evidence might be found. An arrest for simple speeding, improper turn, defective tail lights or even reckless driving would not support an officer's incidental search. With the exception of driving while intoxicated, there is probably no simple traffic offense for which any object other than the vehicle itself which could be considered evidence of the crime. Searches based on arrests or citations for such traffic violations would be illegal. Thompson v. State, 398 S.W.2nd 942 (Tex. Crim., 1966); People v. Lujan, 141 Cal.App.2nd 143, 296 P.2nd 93 (1956); State v. Michaels, 374 P.2nd 989, 992 (Wash., 1962); Barnes v. State, 130 N.W.2nd 264 (Wis., 1964); United States v. One 1963 Cadillac Hardtop, 224 F.Supp. 210 (1963); United States v. Tate, 209 F.Supp. 762 (1962).
However, if the search is valid as a search incident to an arrest, unlike the search for weapons or means of escape, a search for physical evidence of a crime is not confined to those areas of the automobile to which the arrestee has immediate access. The search may extend to the entire vehicle including the glove compartment, truck space, or any other position of the car that might resonabiy conceal one of the items sought. State v. Hunt, 424 P.2nd 571, 573 (Kans., 1967); United States v. Francolino, 367 F.2nd 1013 (1967); Welch v. United *90States, 361 F.2nd 214 (1966); United States v. Gorman, 355 F.2nd 151 (1965); United States v. Doyle, 373 F.2nd 875 (1967); United States v. Washington 249 F.Supp. 40 (1965).
Thus while the officer in this case would not have been privileged to look in the glove compartment of Mr. Todecheene's truck for self-protective reasons if he had originally been cited for speeding, etc., the search for evidence was proper since Todecheene had been charged with disorderly conduct, an offense which, according to 17 N.T.C. § 351 includes intoxication. The officer could reasonably expect his search to uncover contraband or evidence supporting that charge. His authority to search would not terminate simply because the suspect was handcuffed. This is because the rule supporting an incidental search for physical evidence is based less on the need to prevent destruction of the evidence than on the broader consideration of reasonableness. People v. Webb, 424 P.2nd 342, 350 (Calif., 1967).
The judgment of the Trial Court is AFFIRMED.
BLUEHOUSE, Associate Justice, and YELLOWHAIR, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502723/ | WILSON, Acting Chief Justice
This action was brought by the plaintiff, Dorothy Maloney, for the alleged alienation of affections of her husband, Okee Maloney, by the defendant Rose Russell. The Trial Court granted judgment in the amount of $5,000 for the plaintiff. This Court reverses that judgment on the grounds that the plaintiff has not pleaded or alleged sufficient facts to sustain such a judgment under the restrictive conditions this Court feels must be provided by such a plaintiff.
Actions to recover damages for alienation of affections and *92criminal conversation (adultery) are generally looked upon with disfavor in modern courts for several reasons. Because of the remedies available to an injured spouse through divorce or separation proceedings whereby an adequate provision could be made for property settlement and division, alimony and child support, an adequate remedy is usually available to an injured spouse.
it has generally been the experience of those jurisdictions which allow such actions without severe restrictions that they have become a means for a form of blackmail, extortion or vindictive retribution rather than a means of providing for the just needs of the injured spouse. If there was any possible chance for a reconciliation before such a suit was brought, it is almost certainly destroyed by the mutual recriminations, accusations, denials and often threats which are brought out in all cases of this nature.
The families, relatives and friends of a!! parties involved, particularly the children involved, are split by the accusations and often asked or compelled to testify about the conduct of their parents, eroding any remnants of respect or family ties they may remain.
Even under the common law, such suits were often severely restricted by most courts. Today many states have passed legislation completely doing away with such actions.
This Court will limit most of these unfortunate, spiteful and unproductive suits in the same way that other courts have done, by *93requiring the plaintiff to meet very strict standards of proof and allegations as was done by the Kansas Supreme Court, in Curry v. Kline 353 P.2nd 508
As mentioned in Curry, 353 P.2nd at 509, even under the common law if there was no affection remaining which could be alienated by a stranger, then there could be no cause of action for alienation of the spouse's affection (citing Smith v. Rice 163 N.W. 6).
This Court adopts the rule enumerated by Curry, 353 P.2nd at 510:
“To enable a plaintiff to maintain an action of this nature it is necessary he allege and prove that the defendant was the active, controlling cause of the loss of the wife's love and affection and that the defendant exercised an improper, willful and malicious influence in derogation of the plaintiff's marital rights. The reason is obvious. Actions for alienation of affection have been subject to grave abuses and have been used as instruments for blackmail by unscrupulous persons for their unjust enrichment, due to the indefiniteness of the damages recoverable and the consequent fear of persons threatened with such actions that exorbitant damages might be assessed against them. The purpose for the rule is to stop the attempt by some to use the courts as a means to exact payment when the defendant's acts were not the real or controlling cause of the alienation. Regardless of what has heretofore been said and held concerning this type of action, the hard practical realities of everyday life dictate that where a plaintiff has been the controlling cause of the alienation, or when the wife voluntarily joins with the stranger m creating the so-called 'eternal triangle1 by bestrowing her love and affection upon him, a plaintiff may not shout in a petition that the stranger has alienated the affection of his wife and recover damages from him. Hence to state a cause of action it is essential that a plaintiff allege and prove he was not at fault in causing the wife's affections to stray, and that she did not voluntarily bestow her love and affection upon the stranger.11 (Emphasis supplied.)
*94Such a rule, of course, will make a suit for alienation of affection extremely difficult, if not impossible. Much unnecessary recrimination and speculative claims for damage will be avoided. The injured spouse will, however, still be able to receive a property settlement and judgment for alimony and child support where appropriate.
It is ORDERED that the judgment of the Trial Court be and is reversed.
BECENTI, Associate Justice, and LEUPP, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502724/ | KIRK, Chief Justice
On April 8, 1974, this Court granted the request of Peter MacDonald and the Navajo Tribe of Indians, for a review of the *96Trial Court's decision adverse to their interest in the above entitled matter dated March 1 f 1974, the same being docket number WR-RO-11-74, in and for the Judicial District of Window Rock, Navajo Nation (Arizona),
The parties will be referred to as plaintiffs and defendants as they appeared in the Trial Court.
Oral arguments were presented on behalf of the parties in this Court on May 9, 1974.
The Court has determined the facts as follows:
1. The plaintiffs, Dennison family, are Navajo Indians residing on the Navajo Reservation near Tohatchi, Navajo Nation (New Mexico), within the exterior boundaries of Navajo Grazing District 14.
2. The plaintiffs have a permit to graze an undisclosed number of sheep in an undefined area of District 14, known as their "traditional use area."
3. The plaintiffs have a home and other improvements, including sheep corrals, as well as what is called an "intangible interest" (liveihood) in the above said area.
4. Sometime in 1973, the defendant, Peter MacDonald, on behalf of defendant, the Navajo Tribe of Indians, granted a right-of-way to defendant, Tucson Gas and Electric Company, for the purpose of constructing and maintaining a power line for the transmission of electrical energy above, over and across Navajo Tribal Land, including some portion of the plaintiffs' "traditional use area."
5. The defendant, Jefco, Incorporated, is a Utah corporation engaged in the construction business and employed by defendant Tucson Gas and Electric Company to construct the above said power line.
6. Defendants Pittman, Lynch, and Plummer appear to be Navajo Indians employed by the Navajo Tribe of Indian Affairs in some capacity, and are alleged to be agents of the defendant Tucson Gas and Electric Company, and in fact, had some part in securing and obtaining plaintiffs' written consent to the passage of the power line over and *97across their "traditional use area.11
7. The defendant Graham Holmes, is a non-Indian employed by the Navajo Tribe in the Office of the Navajo Land Administration in a supervisory or consulting capacity at Window Rock, and is alleged to have had an active part, and did have some part in securing obtaining the plaintiffs' written consent to the construction of the power line over and across their "traditional use area."
8. The plaintiffs in fact signed some type of consent for the construction of and the passage of the power line over and across their "traditional use area" and they accepted a check in the amount Five Thousand Dollars ($5,000.00) from defendant Tucson Gas and Electric Company for reasons that appear unclear even to the parties.
9. When the defendant Tucson Gas and Electric Company made application to the Navajo Tribe for the right-of-way across Tribal lands, the defendant Peter MacDonald, acting on behalf of the defendant Navajo Tribe of Indians, did not require the applicant of the right-of-way to deposit with the Treasurer of the Navajo Tribe an amount of money equal to at least double the estimated damages made by the Department of Land Investigation |n accordance with Navajo Law, as set forth by the Navajo Tribal Council j_n 16¡ N,T.C. ¿ 553, for the protection of individual Navajo Indians, who may be dispossessed or partially dispossessed by the granting of just such a right-of-way.
10. When defendant Jelco, Incorporated started construction of the power line over and across plaintiffs' "traditional use area", changing the contour of the surface and removing surface vegetation, etc., the plaintiffs brought a proceeding in the Trial Court to cancel their consents for the construction and the passage of the power line over and across their "traditional use area" alleging that their consent was obtained by fraud, deceit and duress; and for an injunction against all of the defendants from further trespass to their property; and for damages for the actual trespass to their use land; and for punative damages for the insolent manner in which the trespass was accomplished. Plaintiffs offered to return the uncashed check for Five Thousand Dollars ($5,000.00) to the defendant Tucson Gas and Electric Company.
11. The Trial Court dismissed the action for damages against the following defendants for lack of jurisdiction:
(1). Tucson Gas and Electric Company
(2). Jelco, Incorporated
(3). Holmes, Lynch, Plummer and Pittman
The Trial Court denied the plaintiffs' request for an injunction against Peter MacDonald, the Navajo Tribe of Indians, and the other defendants. The Trial Court further directed that a date be set for the remaining issues, i.e. damages, and whether the plaintiffs were denied the opportunity to exhaust their administrative remedies.
12. The defendants Peter MacDonald and the Navajo Tribe of *98Indians, maintain through their counsel, the Navajo Prosecutor, Mr. Perry Allen, that the Navajo Tribal Government is immune from suit by one of its members,, in any event, under the legal concept of sovereign immunity, and that Peter MacDonald, Chairman of the Tribal Council in negotiating the right-of-way grant to the Tucson Gas and Electric Company was acting within the scope of the authority vested in him by the Navajo Tribal Council and that therefore he too is immune from suit.
The Court has further determined that this case involves the nature, source, and the lawful exercise of the governmental power of Eminent Domain, a subject with which the parties hereto and their lawyers of record seem to be totally unfamiliar and for that reason we feel impelled to make the following comments and observations:
Eminent Domain is the power of any sovereign to take or to authorize the taking of any property within its jurisdiction for public use without the consent of the owner. It is an inherent power and authority which is essential to the existence of all governments.
Therefore, as in this case, the sovereign (the Navajo Tribal Government), has the power and the authority to take or to authorize the taking of the Dennison property, all or part of it, without their consent. Plaintiffs1 consent to the granting of the right-of-way is totally unnecessary.
But, before the government can exercise this power of taking private property without the owners consent, it must provide just compensation for the property taken and provide the owner thereof with due process of law.
*99These two prohibitions or restrictions on the exercise of the nherent governmental power of Eminent Domain are derived from:
A.The Constitution of the United States - 5th Amendment.
(1) Private property shall not be taken for public use without just compensation.
(2) No person shall be deprived of life, liberty, or property without due process of law.
B.Constitutional Rights of Indians, N.T.C. App., P. 317, Section 1302, (5) (8), known as the Indian Civil Rights Act of 1968.
(1) No Indian Tribe in exercising the powers of self-government shall:
(a) ... (5) take any private property for public use without just compensation.
(b) ... (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of life, liberty or property without due process of law.
C.Navajo Bill of Rights, 9 N.T.C. §§ 1, 5 and 8.
Note, that the Navajo Tribal Council, prior to the passage by Congress of the Indian Civil Rights Act of 1968, guaranteed to the Navajo people that it would make no law for the taking of private properly for public use without just compensation.
(2) Also, the Navajo Tribal Council has guaranteed that it will make no law which denys to any person within its jurisdiction the equal protection of its laws or deprive any person within its jurisdiction of life, liberty, or property without due process of law.
*100Furthermore, under the customary division of governmental powers into three (3) branches, executive, legislative, and judicial, the right to authorize the exercise of the power of Eminent Domain js wholly legislative (Navajo Tribal Council) and there can be no taking of private property for public use against the will of the owner with out direct authority from the legislative body (Navajo Tribal Council) and then the taking must be only in the manner as prescribed by the legislative body (Navajo Tribal Council).
In 1960, the Navajo Tribal Council vested the exercise of the Eminent Domain power of the Navajo Nation _m the Executive Branch of the Navajo Government, and provided by law the exact manner and the procedure to be followed in its execution or use. Tribal Council Resolution CJA-18-60.
Upon reading the above said tribal resolution, as codified in 16 N.T.C., we find that:
Whenever an application is filed with the Navajo Tribe for a right-of-way across tribal lands which may effect the possessary rights of individual Navajos, the Chairman shall:
A. Require the Department of Land Investigation of the Navajo Nation to:
(1) Estimate probable damages to the improvements of individual Navajo's property upon the land.
(2) Estímate the value of probable economic loss to individual Navajos whose customary use right for grazing and other purposes may be effected by the granting of the right-of-way.
*101B. Next, when the estimated probable damages to individual Navajos property upon the land and the probable economic loss to individual Navajos because of the lessening of their use right, if any, is figured and totaled by the experts from the Navajo Department of Land Investigation., the Chairman of the Navajo Tribal Council shall:
(1) Require the applicant of the right-of-way, in this case, Tucson Gas and Electric Company, to deposit with the Navajo Tribal Treasurer, § sum of money equal to at least double the estimated damages as made by the Department of Land Investigation. This is the T ribal Council's guarantee to the Navajo people that their property will not be taken for public use by their government without just compensation and that the taking will be [n accordance with the law as prescribed by the Navajo Tribal Council (due process of law) and not ini accordance with the whimsical capricious however well intended, policies of governmental servants.
(2) After the first step has been taken, that is the estimate made and recorded and the deposit of at least twice the amount of the estimate has been made to the Navajo Tribal Treasurer for the protection of the rights of the individual Navajos effected, then and only then may the right-of-way agreement be finalized and COMMENCED ON BEHALF OF THE GRANTEE (Tucson Gas and Electric Company). This is Navajo due process of law, for the next step is:
C. To make the individual Navajos affected by the right-of-way, an offer of the amount of damages as previously determined. It cannot be just any amount but the previously determined amount made by the Department of Land Investigation by using the formula as set forth by the Navajo Tribal Council.
(1) Where the individual Navajo accepts the offer of the damages as determined by and in accordance with the law, the Chairman shall cause the Treasurer to pay the Navajo that amount out of the deposit to which he is entitled and return the excess of the deposit to the gran- ■ tee of the right-of-way . .
(2) Where the individual Navajo refuses to accept the amount of money damages as determined *102by the Department of Land Investigation within a reasonable time, the Chairman shall set jjn motion a "condemnation proceeding" where. in where the Resources Committee of the Navajo Tribal Council makes the final judgment, for, (3)The Chairman shall:
(a) Appoint one (1) appraiser.
(b) Individual Navajo shall appoint one (1) appraiser.
(c) The two (2) appraisers shall appoint a third appraiser.
(d) If the two (2) appraisers cannot agree upon the third appraiser within ten (10) days, the Chairman may appoint the third appraiser.
(4) The three (3) appraisers shall:
(a) Examine the improvements alleged to be damaged.
(b) Appraise and determine the damages.
(5) The determination of the appraisers shall be submitted to the Resources Committee and when, if, and as approved by said committee, the amount thereof shall be final. Anything less cannot be considered due process of law.
Such disbursement shall be made from the deposit without further appropriation of the Navajo Tribal Council. Furthermore, all sums of money deposited with the Treasurer by the applicant of the right-of-way for the above said purpose, if not disbursed in thirty (30) days, shall be deposited in a Federal Savings and Loan Assocation or invested in bonds of the United States until needed for disbursement in accordance with the above procedure.
Further, no payment to an individual which includes a determination for loss of economic livelihood shall be made, until he has surrendered for cancellation his grazing permit, but only to the *103animal units in excess of the carrying capacity of the land remaining in his customary use area. Payment of Ten Dollars ($10.00) for each cancelled unit shall be made.
j_t should be noted that Chapter 11 of Title 18, Navajo Tribal Code entitled, "Compensation for Improvements and Customary Use Rights upon Adverse Disposition of Land", by the Navajo Tribe, does not impose a duty upon the individual Navajo effected, to initiate an administrative proceeding when dissatisfied with the amount of damages offered. No, the duty imposed by the Navajo Tribal Council in enacting the above resolution, is imposed upon the Executive Branch of the government to initiate or start condemnation proceedings, not before the Courts, but before the Resources Committee of the Navajo Tribal Council, whenever a Navajo citizen adversely affected by the granting of the right-of-way across tribal lands, refuses to negotiate or accept the amount of money offered to him by the tribe, as just compensation. In other words, the Navajo Tribal Council has vested the judicial authority of determining what is or what i_s not just compensation under the above law, in the Resources Committee of the Navajo Tribal Council, rather than in the Courts of the Navajo Nation.
Now we come to the remedies of the individual Navajo who may be adversely effected by the granting of a right-of-way across tribal lands.
It is settled law that when land is taken or damaged by *104authority of law and in compliance with the provision of the law, and the law provides a means of recovering damages which may be instituted by the person in possession of the land, the statutory remedy provided is exclusive and no other remedy will be permitted.
But, when the statutory remedy provided in the law cannot be initiated by the owner of the land, and the condemnor (Tribe) alone can put the remedy in to operation and fails to do so, then the statutory remedy that is provided by the law j_s not exclusive and the owner who is alleged to have been damaged may resort to hjs other remedies. These remedies include ¡njuction relief as well as relief for damages.
When we test the facts of this case with the above law we find that if the plaintiffs were damaged it resulted from the exercise of eminent domain power of the Navajo Nation and that the eminent domain power of the Navajo Nation as exercised by the Executive Branch of the Navajo Government in this particular case was illegal and not in compliance which is designated the "Governing Body" of the Navajo Nation.
It is one of the glories of our society that no man or no division of government is above the law. The Navajo Tribal Council has declared that the Navajo people have a right to be secure in their possessions and that they shall not be taken from them by their government except by due process of law and the payment of just compensation. This philosophy of the law is in keeping with the Declaration of Independence, the great charter of all free men. That *105the only reason governments are established among men is to make secure the basic rights of the people. We intend to up hold this concept and to permit the law to become the great teacher rather than the elected or appointed governmental officials.
It goes without saying that if the officials and employees of the Executive Branch of the Navajo Government, had exercised the power and authority vested in their branch, in the manner prescribed by law, the plaintiffs in this case would have no standing in this Court because of the remedy of the statute would have provided due process of law and just compensation. But, since they did not do so, we must hold for the plaintiff.
The Court has always upheld and presently does uphold the sovereign immunity doctrine of the Navajo Nation, but for anyone to seriously impose that defense under the facts of this case causes concern among the Court, regarding the competency of the legal advisors to the prosecutor and the competency of the legal advisors to the office of the Navajo Land Administration. All that the plaintiffs would be entitled to from the Navajo Nation under the statute, in any event, would be, just compensation. How could they be deprived of this simply because some officials and employees in the Executive Branch, to put it mildly, neglected to follow the law? We consider the Navajo Nation the only real defendant and consider the written consent of the plaintiffs to be of no force or effect and we pass no judgment on the conduct of the other defendants at this time.
*106Unless the Prosecutor files a confession of judgment on behalf of the Navajo Nation in this court within ten (10) days from the date of this order, in an amount concurred in by the plaintffs, the Trial Court is directed to set the case for immediate trial on the sole issue of damages, if any, suffered by the plaintiffs. The Trial Court shall use care and determine the damages if any, in accordance with the formula as set forth by the Navajo Tribal Council in 16 N.T.C,, Chapter 11. The judgment, if any, shall be directed and entered against Peter MacDonald, Chairman, and the Navajo Nation.
BENNALLEY, Associate Justice, and YELLOWHAIR, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502728/ | KIRK, Chief Justice
This an appeal from an order of the Trial Court of the Judicial District of Window Rock, awarding guardianship of the child, Catherine Denise Chewiwi, to Jose Marceline Chewiwi.
Having heard oral arguments on behalf of both parties on January 11, 1977, this Court finds the following facts:
1. The child, Catherine Chewiwi, is the daughter of Juan Antonio Chewiwi, an enrolled full-blooded Isleta Pubelo Indian, and Mary Ann Chewiwi, an enrolled full-blooded Navajo Indian.
2. The parents of the child enrolled her as a member of the Isleta Pueblo, to the exclusion of enrollment in the Navajo Nation ( 1 N.T.C. § 103).
3. The parents died in an automobile accident on or about April 3, 1976.
4. The Tribal Court of the Pueblo of. Isleta in April, 1976, appointed Jose Marceline Chewiwi as the child's guardian.
*1215. The child is five years old as of the date of this decision, her birthday being August 7, 1971.
6. The child was brought within the territorial jurisdiction of the Courts of the Navajo Nation by Katherine and Cecil Begay, maternal aunt and uncle of the child, during July, 1976.
7. Pursuant to a petition filed on July 22, 1976, by counsel for the Begays with the Trial Court for the Judicial District of Window Rock, a hearing was held and an order issued on that same date granting the Begays temporary custody.
8. Pursuant to a motion filed by counsel for Jose Chewiwi to show cause why the above-named petition should not be dismissed, a hearing was held by the Window Rock Trial Court on September 24, 1976, and on October 8, 1976, an order issued vacating the temporary custody order and restoring guardianship to Jose Chewiwi.
9. The child then returned to the Isleta Pueblo, where she remains as of this date.
The issues presented to the Court of Appeals are:
1. Whether the Trial Court erred in not appointing an attorney to represent the child,
2. Whether the Trial Court had jurisdiction to determine the guardianship of the child,
3. Whether the Isleta Court's decision was res judicata, binding upon the Navajo courts,
4. Whether the concept of "full faith and credit" is applicable to the relationship between courts of different Indian tribes.
First, the contention that, in a custody proceeding, a child should be independently represented by counsel is without merit. Since it is obvious that such proceedings present to any court only two options, we will discuss representation by counsel in terms of the interests represented by and inherent in such options.
The first choice that a court has in determining custody is to award the child to one of the parties petitioning for such custody. *122As was the case in this proceeding; such parties are usually represented by counsel. If the court is going to determine that one of the competing parties is to be awarded custody of the child, then the interests of the child are, by definition, represented by the counsel for such parties.
If, on the other hand, the court were to make a determination that none of the contesting parties is entitled to guardianship, then again, by definition of the parameters of such cases, the child's interests have been represented by the court, acting as the ultimate guardian of the child.
It is the fact of this case that neither party offered the court any alternative between custody for the Begays or Mr. Chewiwi. Nor did the court on its own find any suitable third alternative. Therefore, logically, appellants are bound to the conclusion that the child's interests were, in fact, represented as fully as they needed to be.
While it is certainly not a determining factor in our conclusion, as to the issue, we must point out that counsel for the appellants did not advise the court of any practicable means for the payment of such independent counsel.
Finally, petitioners' contention that the failure of the court to appoint an attorney for the child was a violation of the Indian Civil Rights Act (25 U.S.C. 1302) in that the child was deprived of her liberty without due process is patently absurd.
*123Due process was had in that a hearing, with the only parties seeking custody both represented by counsel, was held and a determination was made by the Navajo court that a court having proper jurisdiction had made a determination on the merits. Furthermore, the Indian Civil Rights Act does not even require that the court appoint an attorney in criminal cases, let alone in civil cases. The Court of Appeals is unaware of any decision of any appellate court that the concept of due process requires the appointment, in a custody case, of independent counsel for the child.
Second, it is our determination that the courts of the Navajo Nation do have the authority to determine the custody of any Indian minor properly within the jurisdiction of the Navajo judicial system pursuant to Title 9 of the Navajo Tribal Code. The key word is "properly". Obviously, jurisdiction procured by fraud or asserted over a minor who is not actually within the Navajo Nation would be defective.
The Court of Appeals realizes that consent was given by the Isleta-appointed guardian to the appellants, the Begays, to bring Catherine Chewiwi to a place within Navajo territory. However, it is clear that this consent was intended only for the purpose of a limited family visit. This presence within the Navajo Nation may have given rise to personal jurisdiction but the real question for this Court is the one of whether Navajo courts can or should assert subject matter jurisdiction over the status of such minors.
The answer to this question iies only in a case-by-case *124analysis of the contacts of the child with the Navajo Nation and any other Indian tribe. In this case, the child's parents made a conscious choice to live at the Isleta Pueblo and to enroll their child there, rather then on the rolls of the Navajo Nation. The child spent most of her time at the Isleta Pueblo. The mere fact that the child visited relatives within the Navajo Nation cannot by itself confer on a Navajo court the subject matter jurisdiction to determine this child's status. To rule otherwise would open the door to confused litigation.
Third, the issue of res judicata was not properly raised in this case. The decision of Evens v. Keller, 6. P.2d 200, cited as supporting authority in appellee's brief does not stand for the proposition that a court judgment determining a child's status in a custody proceeding is binding on anyone except the parties to such proceeding. The decision does not even purport to be binding on the parties to such a suit if the state of facts existing at the time of the decision have changed. Since appellants were not a party to the proceeding in the Isleta court and since they are alleging in the suit before the Navajo courts a change in the situation existing at the time of the Isleta decision, the rule of res judicata Is inapplicable in this case.
Fourth, we must deal with the concept of "full faith and credit", which both counsel mentioned in their briefs. The Navajo Nation and the Isleta Pueblo stand beyond the bounds of this rule of law, such as it presently exists and governs the constitutional relationships of the states of the United States.
*125It should not be necessary for this court to remind anyone that Indian nations and tribes were not signatories to the United States Constitution and were not intended to be included within the scope of the mandate of Article IV, Section 1. Nor does Title 28, United States Code, Section 1738, which was written to effectuate the mandate of Article IV, Section 1, provide a dear guide to the relationship between Indian courts.
The case of Jim v. C.I.T., 533 P.2d 751, decided by the Supreme Court of New Mexico in 1975, was cited by both parties as explaining the effect of 28 U.S.C. 1738 on Indian courts. While the esteemed Supreme Court of New Mexico did make reference to 28 U.S.C. 1738 in its opinion, a careful reading of that decision will show that the real issue presented by the facts of that case related to the conflicts of law doctrine. The Supreme Court determined that, under New Mexico's Uniform Commerical Code, parties to a contract may determine which law, given the applicability of more than one, shall govern.
The dissent of Justice Oman, in our opinion, correctly stated that the appellant's claim really was that Navajo law was applicable because the repossession occurred on Navajo territory. The fact is that no judicial proceeding had ever occurred in the Navajo courts. Therefore, 28 U.S.C. 1738 could not have been applicable.
It is our opinion that 28 U.S.C. 1738 does not purport to govern the relationship between Indian courts. The constitutonal provision upon which it is based did not envision indian courts being in *126existence nor did the act itself. The status of the decisions of Indian courts is generally determined not in relation to “full faith and credit", but to the concept of the exclusive jurisdiction of each Indian court over certain matters, sanctioned by federal law and United States Supreme Court decisions.
We think, rather, that the issue presented when the decision of any state or Indian court is presented to the courts of the Navajo Nation for enforcement is one of comity. Navajo court will honor and enforce foreign judgments upon consideration of the right of the foreign court to issue the judgment, of the propriety of the proceeding, and of any relevant public policy of the Navajo Nation.
In this case, the Isleta court clearly had complete jurisdiction to render its decision. This is not questioned by the appellants. The Isleta court's proceedings were properly conducted.
Appellants' claim that their rights were prejudiced because of the fact the they were not notified of the Isleta proceedings must be examined in light of accepted judicial practice and due process standards of notice. The Isleta court notified all parties within its jurisdiction of the hearing concerning the custody of the child, who was and is, a resident of that pueblo. We are unaware of any court decision that holds that the concept of due process requires notification of relatives beyond the territorial jurisdiction of the court holding the custody hearing.
*127While this might be good policy, it has obvious limits, which need not be discussed here. To hold that such notification is an element of due process would burden our courts beyond belief and we therefore refuse to hold any other court to such a standard.
Finally, we can find no relevant public policy of the Navajo Nation which upholding the decision of the Isleta court would violate.
The decision of the Trial Court for the Judicial District of Window Rock is hereby AFFIRMED and the stay of execution issued on the 9th day of November, 1976, is hereby VACATED.
BLUEHOUSE, Associate Justice, and JOHN, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502731/ | KIRK, Chief Justice
This is an appeal from a judgment of the Window Rock District Court, entered August 21, 1975, holding the appellant in this case in contempt of court for failing to comply with an earlier judgment dated July 31, 1972, finding the appellant liable for child support pursuant to a paternity action filed against him.
Despite much reference by both counsel to questions arising a “long-arm" statute for the Navajo Nation there from the absence of *135are really three simple issues presented by the facts of this case:
First, whether the defendant-appellant came within the jurisdiction of the District Court;
Second, whether service on him by mail was legally sufficient;
Third, whether he was afforded adequate time and opportunity to defend himself.
When the paternity suit was filed against the appellant in District Court, he was a student residing in Tucson, Arizona. However, the District Court judge found jurisdiction over appellant on the grounds that he was then in fact domiciled within the Navajo Nation.
Whether this particular appellant was then in fact a domiciliary of the Navajo Nation seems a moot point because he now resides within our territory and holds the position of Director, Navajo Film and Media Commission.
However, we wish to make clear that the mere physical absence from Navajo territory is not sufficient grounds to negate one's status as a lawful domiciliary of the Navajo Nation. Any Court presented with this question must examine the defendant's contacts with the Navajo Nation to determine his status and, after having done so, the court should enter its particular, detailed findings on the record in *136support of its assertion of jurisdiction.
For instance, in this case the appellant was born here, lived here most of his life, received financial assistance from the Navajo Nation, and returned here to assume an executive position. Sn any case of a student away from home, the court might also look to the frequency of his return to Navajo territory, to whether he held summer jobs here, and so on. The legal definition of "domicile" is clear and well-established. The difficult task is ascertaining from the facts whether the definition is met in any given case. Of course, this can only be done on a case-by-case basis.
The second question is whether service by mail was sufficent. Counsel for appellant cited inapplicable federal rules of civil procedure, relating to service of process, in his argument before the court below. Service by certified mail was and is authorized by our Rules of Civil Procedure. We find no applicable federal law that prohibits service by mail in circumstances such as this.
Certified mail, by definition, must be signed for by the addressee and a record of the delivery is kept by the U.S. Postal Service. This clearly puts the defendant on notice of the action against him. If jurisdiction Is lacking, the defendant can assert this ciaim in his answer. We note that the defendant never answered the original paternity complaint.
The act complained of occurred within Navajo territory and *137the defendant's indices of domicile were sufficient to establish to the satisfaction of the District Court that the defendant was in fact a domiciliary of the Navajo Nation. Either one of these matters is usually sufficient to establish probable jurisdiction and permit service by certified mail, within the bounds of due process. Numerous state and federal cases support this concept. (See, Owens v. Superior Court of Los Angeles County, 345 P. 2d 921 (1959); international Shoe Co. v. Washington 326 U.S. 310 (1945); Mílliken v. Meyer, 311 U.S. 457 (1940)).
The last question is whether the appellant here was allowed adequate time and opportunity to defend himself at the original paternity complaint on May 30, 1972. The summons informed him that his hearing was set for June 27, 1972. The summons informed him that failure to appear would lead to a judgment by default. Apparently, the appellant thought that the jurisdiction of the court could be defeated simply by ignoring the summons and staying away from Navajo territory. He was in error.
Because of the passage of time since the entry of the original order and since the filing of the appeal of the District Court order affirming that original order and holding the defendant-appellant in contempt, we find the amount of child support owed by the appellant to be in question.
We therefore affirm the decision of the District Court but remand with instructions to hold a hearing on the amount of appellant's *138present obligation and whether that obligation is to continue or be terminated by a lump-sum payment.
The question shall be set for a hearing to be held within thirty days of the date of this opinion and the decision of the District Court shall be final.
JOHN, Associate Justice, and NESWOOD, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502732/ | KIRK, Chief Justice
This case comes on appeal from a conviction of Leonard Yazzie, the defendant-appellant, in the Chinle District Court on the charges of contributing to the deliquency of a minor (17 N.T.C. 321) and possessing and selling liquor (17 N.T.C. 561, as amended by Council Resolution CMY-39-74, dated May 9, 1974).
Appellant claims that his right to due process was prejudiced because the District Judge sentenced him to jail for the conviction under *14017 N.T.C 321, rather then allowing him to pay a fine. 17 N.T.C. 321 does not provide for punishment by fine. The allegation that the District Courts previously allowed defendants convicted under 17 N.T.C. 321 to pay a fine is not relevant.
Judge Bluehouse, of the Chinle District Court, properly interpreted and applied 17 N.T.C. 321 and its provisions for punishment. The fact that other District Judges may have incorrectly interpreted that law does not give rise to any claim under the various applicable injunctions against ex post facto laws.
Appellant further contends that the complaint charging him with a violation of 17 N.T.C. 561 was insufficient to give him notice of the nature of the offense complained of. The complaint cites the proper Navajo Code provision and refers to the violation as a "liquor violation". Mr. Yazzie was represented by counsel and the Navajo Code is not so complex that learned counsel could not inform himself and advise his client of the exact nature and meaning of complaint citing 17 N.T.C. 561 and referring to a "liquor violation".
The other contentions by counsel for appellant as to the sufficiency of the evidence are of no moment because counsel was unable to demonstrate to the satisfaction of this Court that there was any substance to his argument that the District Court's finding the defendant guilty was not in comformity with the requirement that such finding be beyond a reasonable doubt.
*141The convictions on both charges are hereby affirmed.
JOHN, Associate Justice, and NESWOOD, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502734/ | KIRK, Chief Justice
This case came on appeal from a conviction of defendant-appellant of the charge of selling liquor in violation of 17 N.T.C. 561.
We are aware that the appellant took the stand in her own behalf at her trial and made statements that tend to support her conviction. However, there are important issues presented, by this case which the Court of Appeals .wishes to discuss and therefore we do not choose to uphold the conviction, on that basis.. . -
*146The questions presented by this case are:
1. Under what conditions may the police conduct warrant-less searches when it is clear that they could have gotten a search warrant in advance?
2. What is the scope of the "plain view" doctrine under Navajo law?
Neither counsel for the appellant nor counsel for the government focused clearly on these two issues in their briefs and oral argument. The facts, as best we can determine them from the imcomplete record presented to us, are the following:
1. Acting on a tip from an informer, on March 7, 1976, the police, dressed in plainclothes, went to the home of Marie Franklin to purchase liquor.
2. When they knocked on her door, Marie Franklin opened it and, after some discussion, sold the police officer liquor in violation of 17 N.T.C. 561.
3. Upon being sold the liquor, the police arrested Ms. Franklin, entered her home, and conducted an extensive search, seizing an unspecified quantity of liquor, said by counsel for the government to have been in plain view of the opened door at which the purchase was made.
In any situation in which the police have information in advance of a planned operation sufficient to establish probable cause to obtain a search warrant, they must obtain such a warrant. To allow any other practice would in effect negate, the substantive protections of Title 1, Section 4 of the Navajo Tribal Code. This is the "search and seizure" section of the Navajo Bill of Rights.
The situation in this case is confused by the fact that *147apparently the government is claiming that probable cause developed only at the scene and therefore a search warrant was not needed. We are not satisfied, upon examining the District Court record and after hearing oral argument, that such was the case. Even if liquor was in fact in plain view at the time of the arrest, the questions surrounding the search remain.
At the time Marie Franklin was arrested, her entire house was extensively searched. The plain-view doctrine as we apply it only permits the seizure of the thing actually in plain view, the theory being that no "search" was really necessary to reveal the evidence seized. Therefore, once the police gain access to a place to seize something they have seen while outside, they can only seize the object which was already visible and any other materials that then are in plain view of the thing being seized.
Obviously, then, the plain-view doctrine has limits. It does not authorize the police to open doors, drawers, and cabinets. Nor does this doctrine allow police to enter and search areas not within plain view of the thing being seized. The over-reaching search in this case was indefensible. However, the record is not clear as to what evidence was seized in the illegal portion of the search and whether such evidence was material to the -nviction.
Therefore, this case Is remanded to the District Court with instructions to hold a hearing on the following issues*
*1481. Whether the Navajo Division of Law Enforcement had probable cause to obtain a search warrant in advance of the search;
2. Whether liquor was in plain view of the officer making the purchase; and
3. Whether any evidence seized in the illegal portion of the search was material to the conviction.
if it is determined by the District Court that the police could have gotten a search warrant but did not, or that no liquor was in plain view of the arresting officer, or that evidence seized illegally was material to the conviction, then Marie Franklin's conviction shall be reversed.
It is so ordered. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502986/ | OPINION
Opinion delivered by
YAZZIE, Chief Justice.
This is an appeal of orders denying motions to vacate entry of default and default judgment by the Window Rock District Court. The sole issue this Court will address is whether the district court erred in granting the entry of default without waiting ten days as required by Rule 55(a)(3), Navajo Rules of Civil Procedure.
I
This action involves the right to possession of and title to fee land located within the Navajo Nation at St. Michaels, Navajo Nation (Arizona). The Appellants, Anthony and Elouise Laughing, are husband and wife and residents of the St. Regis Mohawk Reservation in northern New York. Elouise is a member of the Navajo Nation and Anthony is a member of the St. Regis Mohawk Tribe.
In July of 1992, the Appellees, Joseph and Sara Deihl, acquired title to two tracts of fee land, totaling 25 acres, at St. Michaels. They obtained the land through a special warranty deed from the Resolution Trust Corporation. At the time of purchase, the Deihls knew the Laughings were in possession of a house on the land. The Deihls purchased the land as an investment and planned to develop it, but needed clear title to and possession of the land before proceeding.
The Deihls sued in the Window Rock District Court after their efforts to contact the Laughings and obtain possession of the land and house failed. On *294February 12, 1996, the court clerk issued 30-day civil summonses to the Laughings. On February 28, 1996, the Laughings were served by Gregory M. Benedict, a process server authorized to serve process by the St. Regis Mohawk Tribal Council. Anthony Laughing alleged he was not personally served, however, the Deihls filed copies of the 30-day civil summonses along with affidavits of service. The district court concluded that Anthony had been served and that is conclusive on appeal.
On April 8,1996, the Deihls filed a motion for entry of the Laughings’ default and mailed a copy of the motion to the Laughings and their New York attorney, Daniel Pease. Pease is not a member of the Navajo Nation Bar Association. On that same day, the district court granted the motion for entry of default.
On April 19,1996, Pease filed a motion to vacate default and extend the time to answer or plead (“motion to vacate default”). The motion was signed by the Laughings, but not by Pease. Lawrence A. Ruzow, attorney for the Deihls, wrote a letter to the district court asking whether the Deihls should respond to the motion, since Pease was not a member of the NNBA and had not associated with a bar member. The district court advised Ruzow that no response was required until Pease had complied with the NNBA’s requirements for non-NNBA members. The Laughings claimed they filed the motion pro se.
On May 3, 1996, Pease resubmitted a signed motion to vacate. When Pease failed to associate with an NNBA member by May 20, 1996, the Deihls filed a motion for default judgment and requested a hearing on the motion. The district court ordered a hearing to be held on June 18, 1996.
On the morning of June 18, 1996, Paul D. Barber, an NNBA member, entered his appearance for the Laughings and filed a motion to vacate the entry of default. The Laughings did not appear at the hearing. Joseph Deihl appeared and testified at the hearing. On July 1, 1996, the district court filed an order denying the motion to vacate, and entered a default judgment against the Laughings.
II
While both parties make several claims on appeal, this Court believes the appeal can be decided using only the issue of whether the district court erred by entering the Laughings’ default on the same day the motion was filed. According to Nav. R. Civ. P. 55(a) (3), [“a]n entry of default shall not be made until ten (10) days after the filing and notification, if any, of the motion for entry of default.” The Rule further states as follows:
A default shall not be entered if the party claimed to be in default pleads or otherwise defends as provided by these Rules prior to the expiration of ten (10) days from the filing and notification, if any, of the motion for entry of default.
Nav. R. Civ. P. 55(a)(4).
These rules are clear and to the point. A district court is directed not to enter *295default until ten days after the date of filing the motion for entry of default. A district court is also instructed not to enter default if the party claimed to be in default has filed a defensive pleading during those ten days. These rules provide due process because they allow for a just and fair determination of each action.
The record shows that Ruzow, counsel for the Deihls, filed a motion for entry of default on April 8, 1996. On that same day, the district court entered the Laughings’ default. The default should not have been entered until April 18, 1996, at the earliest.
Navajo Nation court decisions on defaults reflect the universal desire to decide cases on the merits and not solely on procedural grounds. In Billie v. Abbott, 6 Nav. R. 66, 76 (1988), we noted that “a trial on the merits is strongly favored over a default judgment.” We explained as follows:
However, where a judgment involves a default, our review should be particularly scrupulous lest the district court resort too quickly to this extreme sanction which amounts to a judgment against the defendant without an opportunity to be heard on the merits.
Therefore, in deciding whether to grant a default judgment or not, a court must strike a balance between the need to prevent delay and the sound public policy of adjudicating cases on the merits.
Id., citing Chavez v. Tome, 5 Nav. R. 183 (1987). We hold that the district court erred when it entered the Laughings’ default without waiting the required ten days.
The orders of the Window Rock District Court granting the motions for entry of default and default judgment are reversed. Upon remand, the district court shall give the Laughings ten days from the date of service of this decision on them to invoke the benefits of Nav. R. Civ. P. 55(a) (3). | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502987/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
The Navajo Nation Council granted the Appellee, Crownpoint Institute of Technology (CIT), immunity from suit in July 1995. The issue before us is whether the Navajo Sovereignty Act, 1 N.N.C. §§ 551-555 (1995), protected CIT from suit on a breach of contract claim that accrued prior to July 1995. We hold that CIT was not immune from suit.
I
In January 1994, CIT awarded Blaze Construction, Inc. (Blaze) a contract for a campus street and parking lot rehabilitation project. After the project was completed, a dispute arose over the amount of money still owed Blaze. In April 1995, the parties agreed that Blaze would accept $114,942.95, instead of the $169,266.00 it claimed, if CIT would pay within a short period of time. CIT paid Blaze $43,104.36 by July 12, 1995, but did not make additional payments.
On January 22, 1996, Blaze sued for debt on a contract in the Crownpoint District Court based on the April 1995 agreement. Blaze did not follow the prerequisites for instituting suit against the Navajo Nation under the Navajo Sovereign Immunity Act, 1 N.N.C. § 555(A)-(C). The district court dismissed the case for lack of subject matter jurisdiction based on Blaze’s noncompliance *297with the Act’s notice provisions. Blaze appealed the dismissal.
CIT originated as a program within the Navajo Nation Division of Labor under authority of a Navajo Nation Council resolution. Navajo Nation Council Res. No. CN-73-76 (November 11, 1976). The program operated a facility known as the Crownpoint Skill Center at Crownpoint, Navajo Nation (New Mexico). The facility was used to train workers on vocational skills through subcontracts with primarily union-affiliated training organizations. The facility closed in September 1981 after the Navajo Nation Division of Labor phased out subcontracted training programs.
In November 1981, the Advisory Committee of the Navajo Nation Council passed a resolution to reopen the facility as the Navajo Skill Center and adopt its plan of operation. Advisory Committee Res. No. ACN-147-81 (November 18, 1981). At the time, the Committee had the power, granted by the Navajo Nation Council, to create any Navajo Nation entity by adopting its plan of operation. 2 N.N.C. § 343 (1984-85 Supp.). The Center’s plan of operation was subsequently codified at 15 N.N.C. §§ 1201-09 (1984-1985 Supp.). Section 1201 stated as follows: “The Navajo Skill Center is hereby established as an entity of the Navajo Nation.” 15 N.N.C. § 1201.
In 1987, the Advisory Committee amended the Navajo Skill Center’s plan of operation. Advisory Committee Res. No. ACJA-7-87 (January 2, 1987). The amendment changed the Center’s name to the Crownpoint Institute of Technology and declared CIT “a non-profit, non-membership corporation, wholly owned by the Navajo Tribe....” Plan of Operation at Art. II.A. Moreover, the amended plan of operation explicitly stated that CIT was “to be considered part of ‘The Navajo Nation’ for purposes of the Navajo Sovereign Immunity Act (citations omitted).” Id. at Art. II.B. The Advisory Committee ceased existence as a standing committee of the Navajo Nation Council in December 1989, upon passage of the Title Two amendments to the Navajo Nation Code. See Navajo Nation Council Res. No. CD-68-89 (December 15, 1989).
On July 21, 1995, the Navajo Nation Council amended CIT’s plan of operation and codified it at 15 N.N.C. §§ 1201-09 (1995). Navajo Nation Council Res. No. CJY-68-95 (July 21, 1995). Section 1202(A) retains the language of Article II.A of the previous plan of operation. At section 1202(B), the Council declared CIT a “part of the ‘Navajo Nation’ for purposes of the Navajo Sovereign Immunity Act (citations omitted).” 15 N.N.C. § 1202(B) (1995). This marks the first time in CIT’s history that the Navajo Nation Council (and not the Advisory Conmittee) clothed CIT with immunity under the Sovereign Immunity Act.
II
There is a longstanding principle that a sovereign cannot be sued without its express consent. The Navajo Nation, as a sovereign nation, enjoys immunity from suit. See Navajo Sovereign Immunity Act, 1 N.N.C. §§ 551-555. While *298other sovereigns’ immunities have been waived to some extent, the Navajo Nation’s immunity remains substantially intact. One reason for this is the need to protect scarce Navajo Nation resources. 1 N.N.C. § 554(A).
Immunity from suit usually raises two issues: the ability to sue and the ability to collect on a judgment. Our courts acknowledge the due process right of access to the courts for relief, particularly in civil rights cases. Therefore, a liberal construction of the Navajo Sovereign Immunity Act for prospective relief under principles of equity is appropriate. However, caution is the norm when it comes to retroactive monetary relief. The reason is simple — no government can risk its assets because they are needed to serve the public. The standard Indian Reorganization Act corporate charter (and there is no such Navajo Nation organization) waives immunity from suit but limits recovery to assets pledged. That same concept is embodied in the Navajo Sovereign Immunity Act, using insurance, self-insurance, and other coverage. Therefore, the Navajo common law axiom of thinking carefully and proceeding cautiously when dealing with immunity from suit issues is proper.
The Sovereign Immunity Act balances the rights of parties seeking redress against the Navajo Nation with the need to safeguard the Nation’s ability to perform its governmental functions without undue interference. Id. The Act allows some exceptions to the Navajo Nation’s immunity from suit. However, a party initiating suit against the Nation must comply with certain procedural prerequisites. 1 N.N.C. § 555. Here, the district court found that the Sovereign Immunity Act insulated CIT and dismissed Blaze’s complaint for failure to satisfy those conditions. On appeal, Blaze asserts that the district court erred because the Navajo Nation Council had not granted CIT immunity from suit when its cause of action accrued.
A.The Sovereign Immunity Act
For purposes of immunity from suit, the Navajo Nation Council chose to define the term “Navajo Nation.” 1 N.N.C. § 552. In other words, the Navajo Nation Council made a deliberate decision to grant immunity from suit to certain entities, collectively known (and listed in the Code) as the “Navajo Nation.” Id. Thus, Blaze must follow the Sovereign Immunity Act’s prerequisites for filing suit if CIT was included in the Act’s definition of “Navajo Nation” in April 1995. The applicable portion of the Sovereign Immunity Act provides as follows:
For the purposes of this subchapter “Navajo Nation” means:
A. The Navajo Nation Council;
B. The President, Navajo Nation;
C. The Vice-President, Navajo Nation;
D. The Delegates to the Navajo Nation Council;
E. The Certified Chapters of the Navajo Nation;
F. The Grazing Committees of the Navajo Nation;
G. The Land Boards of the Navajo Nation;
*299H. The Executive Branch of the Navajo Nation Government;
I. The Judicial Branch of the Navajo Nation Government;
J. The Commissions of the Navajo Nation Government;
K. The Committees of the Navajo Nation Council;
L. The Legislative Secretary of the Navajo Nation Council;
M. The Enterprises of the Navajo Nation;
N. Navajo Community College.
Id. CIT was not included in the definition of “Navajo Nation” for immunity from suit purposes during the relevant time period.
CIT reiterates that the Advisory Committee and the Navajo Nation Code defined its predecessor, the Navajo Skill Center, as “an entity of the Navajo Nation.” 15 N.N.C. § 1201 (1984-85 Supp.). See also, Navajo Skill Center v. Benally, 5 Nav. R. 93 (1986) (finding Navajo Skill Center as an entity of the Navajo Nation). This raises the question of whether under section 552 of the Sovereign Immunity Act, the terms “enterprise” and “entity” are interchangeable. We conclude they are not.
The Navajo Nation Code differentiates between the terms enterprise and entity. For example, this distinction is made at 1 N.N.C. § 501, where Navajo Nation officials are required to use the term “Navajo Nation”: “The President of the Navajo Nation and all departments, divisions, agencies, enterprises, and entities of the Navajo Nation shall use the phrase Navajo Nation in describing the lands and people of the Navajo Nation.” (emphasis added). Furthermore, the Navajo Nation Code specifically establishes the “enterprises” of the Navajo Nation such as the Navajo Arts and Crafts Enterprise, the Navajo Forest Products Industries, the Navajo Agricultural Products Industry, the Navajo Nation Hospitality Enterprise, the Navajo Engineering and Construction Authority, and DINETECHS Enterprise. 5 N.N.C. §§ 1501-1991 (1995). CIT is not identified anywhere in the Code as an enterprise of the Navajo Nation.
A prominent law dictionary also distinguishes between the two terms. Entity is broadly defined as “[a] real being; existence.” Black’s Law Dictionary Ml (5th ed. 1979). Enterprise, on the other hand, has a narrower definition: “A venture or undertaking, especially one involving financial commitment.” Id. at 476. For the reasons stated, CIT was not covered by the Sovereign Immunity Act’s umbrella of “enterprises of the Navajo Nation” in April 1995. 1 N.N.C. § 552(M) (1995).
B. Power of the Advisory Committee
The Advisory Committee created CIT as an entity of the Navajo Nation and granted it immunity from suit. CIT correctly states that the Committee had the power to create CIT as an entity of the Navajo Nation. The dispute is over the Advisory Committee’s alleged power to amend the Sovereign Immunity Act and confer immunity on CIT. We conclude the Advisory Committee did not have that power.
*300In 1987, the Advisory Committee passed a resolution adopting CIT’s plan of operation. The pertinent provisions of that plan state as follows:
A. This Corporation is organized as a non-profit, non-membership corporation, wholly owned by the Navajo Tribe, and organized exclusively for educational and charitable and governmental purposes.
B. The Corporation is a constituent agency of the Navajo Tribal government and is to be considered part of the “Navajo Nation” for purposes of the Navajo Sovereign Immunity Act (citations omitted).
Advisory Committee Res. No. ACJA-7-87; Plan of Operation, Art. II. A.B.
The Navajo Nation Council granted the Advisory Committee both general and enumerated powers. The Committee had the “general authority (as specifically provided herein), to act for the Navajo Tribal Council at such times when the Navajo Tribal Council [was] not in session.” 2 N.N.C. § 341(b)(1) (1984-85 Supp.). Under its enumerated powers, the Committee had the power “[t]o create any enterprise, college, ONEO, or other entity of the Navajo Nation by adoption of its Plan of Operation, and to amend or rescind that Plan, and to amend, or rescind the Plans of Operation of any entity already created by the Navajo Tribal Council.” 2 N.N.C. § 343(b)(1) (1984-85 Supp.). CIT argues that because the Advisory Committee conferred immunity on it while acting for the Navajo Nation Council, and through amendments to its plan of operation, the Committee’s actions were legal under its general and enumerated powers.
CIT’s argument contradicts the Sovereign Immunity Act. The Act provides that “[t]he Navajo Nation may be sued only in the Courts of the Navajo Nation when explicitly authorized by Resolution of the Navajo Nation Council.” 1 N.N.C. § 554(B) (1995). By enacting that law, the Navajo Nation Council, as the governing body of the Navajo Nation, reserved to itself a monopoly on granting and waiving the Nation’s immunity from suit. Thus, from the outset, the Act undercuts CIT’s claim that the Advisory Committee had the authority to grant it immunity from suit. Likewise, the Committee did not have the power to waive the Nation’s immunity. Of course, if those powers were explicitly granted to the Committee, it would have had the authority to do both, but as explained below, we find no such grant in either the Committee’s general or enumerated powers.
The Advisory Committee’s general powers were limited to those “specifically provided herein,” and included:
(1) [T]o act for the Navajo Tribal Council at such times when the Navajo Tribal Council [was] not in session.
(2) Monitor and coordinate the activities of all divisions, departments, and enterprises of the Navajo Nation.
(3) Develop an agenda for the Navajo Tribal Council and recommend legislation to the Navajo Tribal Council.
(4) Deal with all matters relating to the sale, lease, exchange, or other use of lands, including unrestricted (fee) land of the Navajo Nation.
*301(5) Review and approve all federal programs proposed by the Navajo Nation.
(6) Review pending federal legislation affecting the Navajo Nation.
(7) Coordinate all federal programs with all other concerned standing committees of the Navajo Nation to provide the most efficient delivery of services to the Navajo peoople.
(8) Approve and supervise Navajo participation in the implementation of the Indian Self-Determination Act ... and other comparable federal legislation.
2 N.N.C. §§ 341(b)(l)-(8) (1984-85 Supp.). Not a single general power can be read as giving the Advisory Committee the power that CIT proposes.
Moreover, when conferring immunity from suit on CIT, the Advisory Committee attempted to amend the Sovereign Immunity Act. The Committee’s conduct would have the effect of amending the Act, because the Act’s definition of “Navajo Nation” failed to include entities like CIT. The Committee had only the limited power of recommending legislation, 2 N.N.C. § 341(b)(3), and not the power to amend the Act. It exercised this power in 1986 when it proposed amendments to the Sovereign Immunity Act. Advisory Committee Res. No. ACN-180-86. The Navajo Nation Council followed the Committee’s recommendation and enacted the amendments. Navajo Nation Council Res. No. CD-60-86 (December 11, 1986) (authorizing redress for wrongful deprivation or impairment of civil rights). The Committee acknowledged it lacked the power to amend the Act when it followed this “recommendation” procedure.
In 1987, the Advisory Committee used its enumerated power at section 343(b) (1) to amend CIT’s plan of operation and confer immunity from suit on CIT. The relevant amendment stated that CIT “is to be considered part of [t]he Navajo Nation for purposes of the Navajo Sovereign Immunity Act.” (internal quotations and citations omitted). Plan of Operation, Art. II.B. CIT purports that the Committee’s grant of immunity is legal, because it was accomplished in amendments to CIT’s plan of operation.
While section 343(b)(1) gave the Advisory Committee the explicit power to amend CIT’s plan of operation, it did not give the Committee the explicit power to confer immunity from suit on a government entity. Therefore, the Advisory Committee’s act of granting CIT immunity from suit is illegal. Moreover, the important governmental functions of granting immunity from suit and amending the Sovereign Immunity Act are improper subjects for a plan of operation. Finally, after assessing the Advisory Committee’s other enumerated powers, we cannot find an explicit grant of power which would have allowed the Committee to confer immunity on CIT.
Ill
CIT gained immunity only after the Navajo Nation Council passed its July 21, 1995 resolution. Therefore, Blaze was not required to fulfill the statutory pre*302requisites for filing suit on its contract claim. Finally, while we are sensitive to the dissent’s argument that CIT is immune from suit under federal law, that point was simply never raised in the record before this Court. Nonetheless, we are confident the parties and the district court will find a satisfactory solution to this case. The Crownpoint District Court’s decision is reversed and the case remanded for further proceedings. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502988/ | YAZZIE, Chief Justice,
concurring and dissenting in part.
While I agree with the majority that the Advisory Committee did not have the authority to confer sovereign immunity upon the Crownpoint Institute of Technology during the period of time this claim arose, we must always read statutes in light of their contemporary history and the intent of the Navajo Nation Council or a committee vested with specific powers. What was the Advisory Committee’s intent when it established the Institute and other educational institutions, such as the “contract schools”? It was to establish an entity which could receive funding under the Indian Self-Detemination and Education Assistance Act of 1975.
The definitions section of the Act, at 25 U.S.C.A. § 450b(c) (1983), establishes criteria for a “tribal organization” or “legally established organization of Indians which is controlled, sanctioned, or chartered” by the governing body of an Indian nation. See, 25 U.S.C.A. § 450b(l) for 1988, 1990, 1994 amendments (Supp. Pamphlet, 1997). Such organizations are eligible for contracts with the Secretary of the Interior and Department of Health and Human Services, and grants. 25 U.S.C.A. §§ 450f-450h (1983), (Supp. Pamphlet, 1997).
The Act goes on to provide that a “tribal organization” waives its sovereign immunity, but only to the extent of liability insurance coverage. 25 U.S.C.A. §§ 450f(c), 450g(c) (1983). Accordingly, the Crownpoint Institute of Technology has the benefit of the residual sovereign immunity granted by the Indian Self-Determination and Education Assistance Act of 1975, as amended. That is precisely what the Advisory Committee intended when it established the Crownpoint Institute of Technology as an “entity” of the Navajo Nation. While the Institute may not have the advantage of Navajo Nation-conferred sovereign immunity for the period in question, there was certainly the intent to confer federal sovereign immunity upon the organization. The Institute is an education organization which falls under the federal statute.
A contract outlines expectations. On remand, the trial court should closely examine the contracts and agreements between Blaze Construction and the Institute to see what the expectations of the parties were as to remedies for breach. While there may be a waiver of sovereign immunity for certain purposes, there is a distinction between waivers for purposes of suit and the ability to *303execute on the judgment. Since the Indian Reorganization Act of 1934, there have been clearly defined distinctions between the ability to sue and the ability to execute upon “assets pledged” or the monies allocated in insurance policies. I do not believe that the Advisory Committee intended that the Institute’s assets and physical plant would be subjected to execution, and I would not want to give the trial court carte blanche to put the Institute’s buildings up for sale in the event it finds liability. I recommend that the trial court carefully assess the agreements of the parties on this point. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502989/ | OPINION
Opinion delivered by
CADMAN, Associate Justice.
We are asked to decide 1) whether the district court abused its discretion by dismissing the Plaintiff’s complaint for failure to serve process within the six months time period of Nav. R. Civ. P. 6(f), and 2) whether the district court abused its discretion by failing to rule on Plaintiff’s motion for extension of time to serve process under Nav. R. Civ. P. 6(b). We find that the district court abused its discretion and reverse the court’s dismissal of the complaint.
I
The Plaintiff, Taft Blackhorse, filed a complaint against the Defendants on August 23, 1995. Summonses for all the Defendants were issued the next day. Because the Navajo Nation was a named defendant, service of process had to be made according to the Navajo Sovereign Immunity Act, 1 N.N.C. § 555(c) (1995). Under Nav. R. Civ. P. 6(f), service of process had to be completed by February 23, 1996. The Plaintiff hired Freeman Dreschner, a private process server, to serve process.
The Plaintiff’s counsel claims he made several unsuccessful attempts to contact Dreschner as February 23, 1996 approached. On February 23, 1996, the Plaintiff filed a motion for enlargement of time for service pursuant to Nav. R. Civ. P. 6(b). In support, the Plaintiff alleged his inability to locate Dreschner at his house, at a different address given by Dreschner, and through telephone messages left at the number given by Dreschner. The district court never ruled on the motion for extension of time.
*305The Plaintiff claims he completed service of process on all the named Defendants by March 8, 1996. The Defendants, on the other hand, claim the President of the Navajo Nation and the Attorney General of the Navajo Nation were not served a copy of the complaint and summons by certified or registered mail. On March 11, 1996, the district court dismissed the action ruling that, although summonses had been issued, Rule 6(f) required it to dismiss the action for failure to complete service within six months.
II
We addressed issues concerning Rules 6(b) and 6(f) of the Navajo Rules of Civil Procedure in Lee, et al. v. Tollman, et al., 7 Nav. R. 246 (1996). Rule 6(f) states that “[a]n action shall be dismissed without prejudice if the summons is not issued and service completed within six months from the date of the filing of the complaint.” In both Lee and this case, the district court read Rule 6(f) as mandatory and dismissed the action because service had not been completed within six months of filing of the complaint, although summonses were issued. In Lee, we said the civil rules should be flexible enough so that Rule 6(f) and Rule 6(b), read together, would permit enlargement of time to serve process. Id. at 248. We then held that “Rule 6(f) [was] not mandatory and an extension of time to serve process may be granted.” Id. Thus, where summons has issued, Rule 6(f) is not mandatory (meaning requires dismissal) on the court, and a party is free to request enlargement of time to serve process using Rule 6(b).
A subsidiary issue is can Rule 6(f) ever be read as mandatory, considering that the words “shall be dismissed” are used in the rule? The answer is in the rule itself: When “summons is not issued and service completed” within the prescribed six months, the “action shall be dismissed.” In other words, Rule 6(f) requires dismissal where both the summons was not issued and it was not served within six months. In both Lee and this case, summonses were in fact issued so Rule 6(f)’s mandatory dismissal did not apply. The district court abused its discretion when it ruled that Rule 6(f) required it to dismiss the Plaintiff’s complaint for failure to serve process within six months, although summonses were issued.
The final question is whether the district court abused its discretion when it failed to rule on the Plaintiff’s motion for enlargement of time to serve process. Again, in Lee, 7 Nav. R. at 248, we said that a party can request enlargement of time to serve process, so the district court is under an obligation to decide the Plaintiff’s motion.
We reiterate that the district court “has discretion to grant or deny an extension of time to serve process.” Id. Where the motion for enlargement of time to serve process is made before expiration of the six months required by Rule 6(b), the court must consider two factors to make its decision: due diligence and good cause. Id. at 249-251. Because these factors are considered on a case-by-case basis, this case will be remanded so the district court can decide the motion for *306enlargement of time in light of our decision in Lee.
The Window Rock District Court’s decision dismissing the Plaintiff’s complaint in this case is reversed. The Plaintiff’s case is remanded for further proceedings consistent with this opinion. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502990/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
We address two questions on appeal: 1) Was the notice of appeal timely filed; and 2) What is “a certified copy” of the final judgment being appealed under N.R.C.A.P. 7(a). We find that the notice of appeal was filed late and dismiss the case for lack of jurisdiction.
I
The Navajo Nation Labor Commission (Commission) rendered its decision in this case on September 10, 1997. The Appellants’ counsel received the Commission’s decision by certified mail on September 15, 1997. On September 25,1997, the Appellants mailed their notice of appeal to the supreme court clerk for filing. The notice of appeal was received and stamped “filed” at 1:45 p.m., on September 26, 1997. The parties agree that the deadline for filing this notice of appeal expired on September 25,1997. The Appellee seeks dismissal of this case for lack of this Court’s jurisdiction.
*308II
The statute regulating appeals of Commission decisions states as follows:
Any party may appeal a decision of the Commission to the Navajo Nation Supreme Court by lodging a written notice of appeal, in the form prescribed by the Navajo Rules of Civil Appellate Procedure and within ten (10) days after receipt of the Commission’s decision.
15 N.N.C. § 613.A. (1995). Relying on this section, case law on timeliness of filing notices of appeal,1 and N.R.C.A.R 4(a),2 the Appellee claims that the time for filing the notice of appeal in this case expired at the end of business day on September 25, 1997. Conversely, the Appellants claim that pursuant to N.R.C.A.R 7(d) and 4(b), a notice of appeal is deemed filed with the Court on the date of its mailing when regular mail is used (as opposed to certified mail). The Appellants rely on the following language in this order: Rule 7(d): “The Notice of Appeal and any motions or other papers filed in support of an appeal shall be served in accordance with Rule 4(b)”; and Rule 4(b): “Service by mail is complete on mailing.” Thus, the Appellants argue that their notice of appeal was timely filed because it was mailed to the court clerk for filing within ten days of their receipt of the Commission’s decision.
The Appellants present an ingenious argument that is not supportable by any construction of our law. Rules 7(d) and 4(b) are irrelevant to the question of how and when a notice of appeal is filed with this Court. Those rules govern service of papers between parties to an appeal and service of papers by the supreme court clerk upon the parties. The bulk of that service transpires after the notice of appeal is filed with this Court.
The Navajo Rules of Civil Appellate Procedure contains statements that papers have to be “filed” with the Court. Rule 7(a) provides that “[a]ll appeals shall originate by filing a written Notice of Appeal with the Clerk of the Supreme Court.” What events would lead to a binding conclusion that a legal document, including a notice of appeal, whether hand carried or mailed, has been filed with the Supreme Court?
This Court contended with similar facts, issue, and argument in In re Adoption of Doe, 5 Nav. R. 141 (1987). There the Appellants, using certified mail, deposited their notice of appeal in the U.S. mail at the Tuba City Post Office. The envelope arrived at the Window Rock Post Office on the final day for filing the notice of appeal, but for unknown reasons, the postal officials failed to notify the supreme court clerk of the envelope. Left unclaimed, it was returned to the *309Appellants several days later. Id. at 142.
The Appellants refiled their notice of appeal which the Court dismissed. Upon reconsideration, the Appellants argued that their initial notice of appeal was timely filed, because they mailed it before the time for filing the notice of appeal had expired. Id. The Court rejected the argument stating, “Deposit of a notice of appeal in the mail is not equivalent to filing the notice of appeal....” (citation omitted). Id. at 143. The Court then held that “an appeal is not considered filed until it is received into the custody and control of the Clerk of the Supreme Court, at the place of business, with all necessary documents stamped by and fees paid to the Clerk.” Id. at 143-44.
Although Doe interprets the Navajo Rules of Appellate Procedure, the facts of the decision, the Court’s reasoning, and the holding apply to this case unequivocally. Doe and this case address the basic question of when a notice of appeal is considered filed with the Court. Whether the notice of appeal is mailed or not is irrelevant to the inquiry.
A notice of appeal, and any legal paper required to be filed with this Court, is filed when it is received by the court clerk at the supreme court office, goes under her control, before the end of business day, and stamps it as “filed.” The final act is the stamping of the document as “filed.” See also Rule 4(a) (“Filing may be accomplished by certified mail addressed to the Clerk, but filing shall not be timely unless the papers are received and stamped by the Clerk within the time fixed for filing”). Of course for appeal purposes, there are the additional requirements of a certified copy of the final judgment and a filing fee. Both must be filed simultaneously with the notice of appeal. We hold that the Appellants’ notice of appeal was not timely filed in this case.
Ill
The final matter concerns the meaning of “certified copy” of the final decision being appealed. Rule 7(a) states as follows: “A certified copy of the [decision] ... being appealed ... must be attached to the Notice of Appeal.” Certified copy means a copy (normally photocopied) of a document signed by the clerk under whose custody the record is kept attesting to it as a true copy. The clerk’s original signature or marking must be on the copy itself. A copy of the clerk’s signature and certification (copy of certification) will not suffice.
For the foregoing reasons, we dismiss the notice of appeal for lack of jurisdiction.
. Pioche v. Begay, 6 Nav. R. 403 (1991); In the Matter of Baby Boy Doe, 5 Nav. R. 141 (1987); Riverview Service Station v. Eddie, 5 Nav. R. 135 (1987); and Viva Rancho Motors v. Tully, 5 Nav. R. 145 (1987).
. Rule 4(a) provides in relevant part: “All papers required or permitted to be filed in the Supreme Court shall be filed with the Clerk of the Supreme Court.... Filings may be accomplished by certified mail addressed to the Clerk, but filing shall not be timely unless the papers are received and stamped by the Clerk within the time fixed for filing.” | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502736/ | BLUEHOUSE, Associate Justice,
concurring in the judgment:
i also concur in the result but I do want to express my strong feeling that we should avoid putting our Navajo Division of Law Enforcement in a straightjacket.
I can understand the dangers that lie in judicial approval of warrantless searches after they have happened. But that is a responsibility we judges must face up too. Of course, it is up to the government to establish probable cause and I think it will be very seldom that they could establish probable cause for searching a house without a warrant. It is not often that a policeman will spot contraband through an open door.
There are many exceptions to the requirement of a search warrant. They are all based either on the concept of "exigent" circumstances or on the notion of what is "reasonable" in a given situation, because the Fourth Amendment to the Constitution, and Clause 2 of 25 U.S.C. 1302 by reference, requires a search warrant to protect people against unreasonable searches.
This case is a bad one to use to clarify these issues because the facts were so poorly developed. That is why I agree with the opinion of the Chief Justice remanding this case to the District Court. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502737/ | KIRK, Chief Justice
This case comes on appeal from a decision of the Shiprock District Court, the Honorable Charley John presiding, awarding a permanent injunction against the Defendants-Appellants.
On November 23, 1976, the Shiprock District Court issued a temporary restraining order against the Defendants-Appellants, ex parte, restraining them from interferring with the Plaintiff-Appel lee's access to land in Apache County, Arizona, for which they have a lease to operate *151oil and gas wells. The order directed the Defendant, Marie Begay, to appear on December 6, 1976, and show cause why the order should not be made permanent.
On February 14, 1977, a hearing was held at which the Defendant, Marie Begay, was required to proceed and show cause why the temporary restraining order should not be made permanent. Marie Begay was the only witness to testify, and at the conclusion of her testimony, the Court directed that a permanent injunction be issued.
Subsequently, this appeal followed and was limited by this Court to the question of who had the burden of proof in that cause of action.
Assuming the Temporary Restraining Order to be proper, no question being then raised as to its validity, the answer is determined by examining whether a show cause hearing was the proper manner in which to proceed.
Under the rule then in effect and under the current rule, Rule 18 of the Rules of Civil Procedure, the proper manner for the District Court to proceed is to set a hearing date for converting the Temporary Restraining Order into a Permanent Injunction. The initial burden of proof and burden of going forward with the evidence remains with the Plaintiff, Merrion & Bayless in this case.
*152By the manner in which this case proceeded, the Plaintiff never presented any evidence to support its contention that injunctive relief was necessary. The Defendant was forced to defend without having heard the allegations against her. Clearly, this was an error.
The Permanent Injunction issued by the Shiprock District Court on the 14th day of February, 1977, is therefore vacated.
The Defendant is hereby temporarily restrained from inter-ferring with the Plaintiff's access to the land until the matter can be re-heard by the District Court.
The case is remanded to the Shiprock District Court for a full hearing in accordance with these views, said hearing to be held within fifteen days.
LYNCH, Associate Justice, and NESWOOD, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502739/ | WALTERS, Associate Justice
This case came on appeal from a final decree of probate issued by the Shiprock District Court awarding, among other things, a grazing permit for 104 sheep-units to the Appellee, Betty Nelson Todecheeny.
Appellants, Cecelia Henderson and Tom D. Nelson, claim that the grazing permit was not a proper item for distribution with the probate estate because the permit had been given to them as a gift before the death of the intestate. Appellants maintain that the permit was held jointly by them and the deceased and that upon decedent's death, the permit would automatically pass to them.
The District Court at Shiprock disagreed, and in a written *163opinion found that there was no gift as delivery had not been completed. The District Court found that, while the decedent and appellants did sign in blank a Bill of Sale or Transfer, evidence of an actual physical transfer was lacking as there had been no Grazing Committee ratification and the Bill of Sale was not completed and therefore the decedent had not carried out his intentions to make a gift.
The question presented to this Court is whether the decedent properly executed a gift to the Appellant before his death. If there was a completed gift inter vivos, then the decision of the District Court must be reversed, A problem this Court must also consider is the nature of a grazing permit; does it represent real property or is it personal property?
The Court has examined carefully the complete record in this case. The Appellants submitted to the District Court the BUI of Sale or Transfer, signed in blank by the parties only and undated. Also submitted was a similar Bill of Sale or Transfer, more fully completed, but lacking signatures of the parties to the transaction and lacking the ratification of the Grazing Committee. This Bill was dated August 13, 1375.
Also submitted to the District Court was a Bill of Sale or Transfer for the same grazing permit, again lacking all signatures, but purporting to make a gift to the Appellee, Betty Nelson Todecheeny. The date on this Bill was June 15, 1976.
*164To constitute an inter vivos gifts, there must be donative intent, delivery, and the vesting of irrevocable title upon such delivery. Scovill v. Vail Investment Co., 55 Ariz. 486, 103 P.2d 662 (1940) and Armer v. Armer, 105 Ariz. 284, 463 P.2d 818 (1970). See also Espinosa v. Petritis, 70 N.M. 327, 373 P.2d 820 (1962).
Looking first to the issue of donative intent, it would appear to this Court that such intent to make a gift to the Appellants is lacking. While at least two Bill of Sale or Transfers were executed in various states of completion, the deceased also executed an incomplete Bill of Sale or Transfer to the Appellee at a later date. As the decedent did contemplate a transfer to the Appellee at this later date, it would appear to this Court that the decedent had changed his mind about the gift to the Appellants. As the Supreme Court of Colorado stated in Bunnell v. Iverson, 147 Colo. 552, 364 P.2d 385 (1961), "It is fundamental that in order to constitute a valid gift, there must be: first, a clear and unequivocal intent on the part of the donor to make a gift..." See 364 P.2d at 387.
If the decedent had a clear and unequivocal intent to make a gift to the Appellants, this Court doubts he would later have attempted to make a gift of the same permit. This Court also feels that the decedent would have had his action ratified by the Grazing Committee if he had not changed his mind.
Therefore, while the decedent may have once had the intent to give the permit to the Appellants, his intent to do so changed at *165some later date. While it is clear that once a gift is completed, it cannot be revoked, the converse is that is can be revoked prior to its being completed. See Bunnell v. Iverson, Ibid., 364 P.2d at 386. We must therefore look to see if there was delivery and thus a completed gift to the Appellants.
A major problem in the courts of the Navajo Nation has been whether to characterize grazing permits as real or personal property. In non-Indian societies, land is transferred by instruments called deeds, and no gift of real property would be complete until that deed was properly executed. In the Navajo Nation, we hold that a grazing permit is the functional equivalent of a deed and is therefore an instrument which transfers real property. Land is of primary importance to the Navajo people, and to hold otherwise would cheapen the importance of land transfers.
As we have already pointed out, no Bill of Sale or Transfer was ever ratified by the Grazing Committee or even completely and properly filled out by the parties. No gift of real property is complete until the instrument of transfer is properly completed.
In additional, it is obvious to this Court that the element of delivery was not met in this case. In order to make a valid gift, there must be a delivery amounting to present transfer of title. Blonde v. Jenkins Estate, 131 Cal. App.2d 682, 281 P.2d 14. We have held above that a grazing permit is the functional equivalent of a deed, which is the necessary instrument to transfer title. Since the Bill of *166Sale or Transfer was never completed, there was no transfer of title and therefore no delivery.
One of the principles of an inter vivos gift is that the donor must surrender dominion and control over the gift. Appellants, in their brief, admit that creation of a joint tenancy does not require a complete surrender of dominion and control (emphasis added). Kinney v. Ewing, 83 N .M. 365, 492 P.2d 636. However, obviously, in order to create a joint tenancy by a gift, it is necessary that some dominion and control be surrendered. The donee has the burden to prove the gift and Appellants have failed to show they had some control and thereby meet this burden. See Blonde v. Jenkins Estate, Ibid., 281 P.2d at 17.
When complete dominion and control is retained by the donor until his death, it becomes merely an unexecuted and unenforceable promise to make a future gift. In Re McSweeney's Estate, 123 Cal. App.2d 787, 268 P.2d 107. As such, even if the decedent had promised the grazing permit to the Appellants, the promise would be unenforceable.
In the future, the kind of problem which has arisen in this case could best be avoided by properly preparing the necessary Bill of Sale or Transfer. This Court recognizes the great burden placed on the Grazing Committee due to lack of legal help. The Court is hopeful that the Grazing Committee will be able to overcome the problems and assist those persons in effectuating the transfers.
*167The Court therefore finds that there was no gift because the decedent changed his mind about giving the permit to the Appellants and revoked his Incomplete gift. No delivery of a gift was made either to the Appellants or to the Appellee.
The Shiprock District Court therefore properly distributed the permit to the Appellee in conformance with the community properly laws of the Navajo Nation as it applies New Mexico law.
The judgment is AFFIRMED.
KIRK, Chief Justice and LYNCH, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502740/ | KIRK, Chief Justice
This matter comes on appeal from an order entered June 17, 1977, by Robert Walters, Tuba City District Judge, commanding Raymond Tso, Acting Chief Prosecutor, to assume the duties of the Tuba City District Prosecutor for thirty days for the purpose of orienting and training the newly appointed prosecutor for that district, Mr. Joe Ray, Jr.
This order was in fact the second order entered in that case. The first order, issued May 9, 1977, held Tso in contempt of court for failing to appoint a district prosecutor for over six months.
This order had also been the subject of an appeal, which was dismissed as moot in view of the District Judge's decision of June 17 vacating that order at a hearing held pursuant to Rule 5(d) of the *169Rules of Appellate Procedure.
Upon vacating that order, the order presently appealed from was entered, pursuant to Judge Walters' interpretation of Title 7, Section 30S of the Navajo Tribal Code.
That section reads, in part as follows:
The judge may appoint a member of the Tribe as prosecutor. 7 N.T.C. § 306.
There is no legislative record of any discussion of this part of the Code.
The order required Tso to be in Tuba City, Arizona, five days a week from 8:00 A.IV!. to 5:00 P.M., from June 20, 1977 to July 20, 1977, for the purposes of training Mr. Joe Ray, Jr., and of assisting him in the actual prosecution of cases.
Apparently, negotiations were held in the judge's chambers concerning the nature of this order. Lawrence Ruzow, counsel for the Acting Chief Prosecutor, and Tso himself evidently did not anticipate a new order being entered on June 17th.
The situation was evidently exacerbated by Tso's having spent two weeks avoiding a bench warrant commanding his arrest for failure to comply with the first order. The bench warrant was withdrawn at the June 17th hearing.
*170When the second order was entered and the motion for reconsideration denied, the decision was immediately appealed and a stay of execution requested on June 21, 1977.
The stay was denied on the grounds that there was no injury to appellant in complying with the order pending appeal.
Meanwhile, appellant here had filed suit in the federal District Court for the District of Arizona, naming Robert Walters as defendant and raising substantially the same issues as are raised by this appeal.
This obvious attempt to intimidate the Navajo Courts was an example of the irresponsibility of counsel for the appellant. A further example was provided in the oral argument when Ruzow argued that the judge's order was the result of manipulations by certain Judicial staff.
The real issues in this case can be summarized as follows:
1. Does the order of June 17, 1977, constitute "peonage" as that term is used at 18 U.S.C. § 1581?
2. Does the order of June 17, 1977, constitute "involuntary servitude" as that term is used in the Thirteen Amendment to the U.S. Constitution and at 18 U.S.C. § 1584?
3. Did any extra-judicial statements made by Judge Walters about this case constitute a deprivation of the due process guaranteed by 25 U.S.C. § 1302(8) and the Navajo Bill of Rights, 1 N.T.C. § 8?
4. Was the order of June 17, 1977, properly grounded in 7 N.T.C. § 306?
5. Was the order of June 17, 1977, actually one In the nature of mandamus and, if so, is the writ of mandamus barred to Navajo District Courts by Rule 16 of the *171Rules of the Court of Appeals?
The first issue can. be disposed of summarily. Counsel for appellant admitted at the hearing that the "peonage" argument was an ignorant one. “Peonage" refers to imprisonment for debt or forced labor in repayment of debt. Pierce v. United States, 14 F.2d 84 (5th Cir., 1944). The facts here clearly exclude this claim. The argument having been raised at all illustrates the dangers of preparing briefs based on headnote research rather than on reading the cases.
The second argument is almost equally silly. "Involuntary servitude" has never been held by any court we know of to include a court order requiring an irresponsible public official to do his duty. In fact, cases have held the various forms of apparent involuntary servitude are not such within the meaning of the Thirteenth Amendment to the United States Constitution.
For example, State v. Rush, 46 N. J. 399, 217 A.2d 441 (1966), holds that assignment of counsel without compensation to represent indigent defendants does not constitute involuntary servitude or peonage.
Delorme v. International Bartenders' Union, 18 Wash.2d 444, 139 P.2d 619 (1943), stands for the proposition that a court may require a person subject to its jurisdiction to perform his duty [as the court sees it] without violating the Thirteenth Amendment.
*172The Selective Service Act has been held not be "involuntary servitude" prohibited by the Thirteenth Amendment. Selective Draft Law Cases, 245 U.S. 366 (1918).
Of course, there have been numerous cases alleging that various civil rights acts impose involuntary servitude on those seeking to discriminate. This form of "servitude" has not been held unconstitutional. Neither has the servitude imposed by "back-to-work" court orders in labor-relations cases been held to violate the Constitutional prohibition.
It is, therefore, clear that compulsory public service even uncompensated does not violate the Thirteen Amendment. In this case, the public service required of Tso was that for which he was already being paid, if one assumes that a duty of any supervisor is to train his subordinates to propely carry out the jobs for which he has hired them. We do not feel this to be an unwarranted assumption. Whether the training was carried out in Window Rock or Tuba City does not seem to be the controlling factor, so long as the choice is reasonably related to the underlying purpose.
We simply can not understand the argument that "involuntary servitude" exists in spite of the public purpose served, in spite of the relationship of the required service to the appellant's established duties (examined in the light of common sense), and in spite of the fact that appellant was compensated both for his services and for his expenses during the limited life of this order.
*173The third issue presents a case of over-reaching argument. No one would argue that statements in the nature of those referred to in Berger v. United States, 255 U.S. 22 (1921) are prejudicial and that the hearing of a case by a judge making comments on it such as those constitutes a violation of due process.
However, the only comments by Judge Walters established by the appellant were to the effect that Judge did not believe Tso's "witchcraft" claims and that the Judge thought it was wrong for Tso to avoid the bench warrant.
While we do not approve of judge's commenting publicly on a case before him or any other judge, we cannot agree that statements such as the above give rise to a violation of either 25 U.S.C. § 1302(8) or 1 N.T.C. § 8.
The fourth question - whether the order was proper under 7 N.T.C. § 306 - also raises the issue of whether the court's order is a "violation of fundamental principles of administrative law" [Appellant's Brief, page 9].
Appellant's counsel presented to this Court a long list of his client's duties, as set forth in 2 N.T.C. § 983 alleging that the District Court's order made performing these duties impossible.
There is no conflict between 2 N.T.C. § 983 and the power of the court as expressed in the order of June 17th.
*174Paragraph (2) of 2 N.T.C. § 983 requires the Chief Prosecutor to:
"investigate, prosecute and dispose of all cases within his jurisdiction, acting independently and upon his own authority within the guidance of law and professional ethics in the performance of his duties."
Paragraph (4) says that he must "exercise supervisory control and direction..."
Paragraph (9) requires him to delegate authority to members of his staff [presumably including district prosecutors].
In the light of these provisions, can it be seriously argued that an order requiring Tso to train an inexperienced, newly-appointed district prosecutor is an improper interference with Tso's administrative responsibilities?
The argument that the order "represents a court telling an administrative body how to do its job" [Appellant's Brief, page 11] begs that issue. Courts do this all the time because administrative agencies are bound by the law just like everyone else.
If the statement means to say that the order constituted an unwarranted intrusion into a legitimate administrative function, then the argument is false because the order does not describe in detail how the Acting Chief Prosecutor is to carry out the training function mandated to him.
*175Since Judge Walters cited 7 N.T.C. § 306 as the basis of his order, we must examine whether that part of the Code was properly invoked by the court as the authority for its action.
Title 7, Section 306 reads as follows:
Professional attorneys shall not appear in any proceedings before the Court of the Navajo Tribe unless rules of court have been adopted as set forth in section 301 of this title prescribing conditions governing their admission and practice before the court. Every defendant shall have the right to have some member of the Tribe represent him and in the event he has no such representation, a representative may be appointed by the judge. The judge may appoint a member of the Tribe as prosecutor.
Read in this context, the sentence concerning the appointment of a prosecutor does not, it seems to us, cover situations such as this case presents.
Raymond Tso was not really "appointed" as prosecutor but rather the order was written that way as a vehicle for requiring him to train his own inexperienced appointee for the Tuba City district.
What the Judge was attempting was an action in the nature of mandamus, requiring an already appointed prosecutor to properly carry out his duties.
Therefore, the remaining question is whether Rule 16 of the Rules of the Court of Appeals was intended to restrict the writ of mandamus to the jurisdiction of the Court of Appeals.
*176Rule 16 must read in the light of 7 N.T.C. § 173, which reads:
The Court of Appeals shall have jurisdiction to hear appeals from final judgments and other final orders of the Trial Court of the Navajo Tribe except in criminal cases where the defendant is sentenced to less than $26.00. in such cases there shall be no right of appeal.
7 N.T.C. § 172 specifically limits the jurisdiction of the Court of Appeals to "appeals from final judgments and other final orders" of the trial courts.
7 N.T.C. § 173, therefore, was intended only to provide the remedy of mandamus as to trial courts themselves. It does not confer original jurisdiction on the Court of Appeals for mandamus proceedings involving Executive Branch officials.
Rule 16 was intended only as clarification of 7 N.T.C. § 173. Obviously, no court rule could alter the substance of the Navajo Tribal Code, which grants jurisdiction to the trial courts in comprehensive language and includes an "all-writs" Section. 7 N.T.C. 133 and 134.
In view of our reading of these four statutory provisions, we conclude that the District Courts, and only District Courts, have original jurisdiction to grant writs of mandamus in cases such as these.
Therefore, we hold that Judge Walter's order of June 17th was not correctly grounded in 7 N.T.C. § 306 but was, rather, ready a *177writ of mandamus improperly handled.
On this basis, we reverse the decision of the Tuba City District Court.
BECENTI, Associate Justice (ret.) and YELLOWHAIR, Associate Justice (ret.) concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502741/ | KIRK, Chief Justice
This case comes to this Court on a petition for a writ of mandamus requiring the Honorable Merwin Lynch to disqualify himself from the case of Frank Yazzie et al. v. Ron Faich and to vacate, his orders in that case.
On October 11, 1977, Frank Yazzie, Woody Yazzie, Franklin Wauneka, Annie Wauneka, Alfred Roanhorse and John Hale filed a request for a temporary restraining order and permanent injunction *179against Ron Faich in the Window Rock District Court. The complaint asked for a permanent injunction preventing the defendant, his agents, employees or servants from conveying reapportionment maps drawn by the defendant to the Census Bureau in Washington, D.C.
The plaintiffs alleged that the boundary fines of the Klagetoh, Wide Ruins, Ganado and Greasewood Chapter were drawn incorrectly and that there existed no proper authority for the defendant to determine the chapter boundary lines.
On October 11, 1977, the Court modified the temporary restraining order to exclude any maps not involving the Klagetoh, Wide Ruins, Ganado or Greasewood chapters.
Later the same day, Judge Lynch issued another order vacating his modification.
A hearing was held on October 28, 1977, on the permanent injunction.
On October 28, 1977, the Court issued an order enjoining the defendant and his agents from conveying any map of Navajo chapter boundaries and enumeration districts to the Census Bureau in Washington, D.C. The Court further ordered that the matter of chapter boundaries be remanded to chapter officials for proper delineation of the boundaries of the four aforementioned chapters.
*180The Court impounded all maps prepared by the defendant and ordered him to submit a report on the proposed boundaries to the Court within sixty days.
On October 31, 1977, the Petitioner filed an application for a writ of mandamus, alleging that Judge Lynch was unable to act with impartiality as he and his close relatives have grazing permits in the disputed areas.
After listening to counsel at the hearing on November 8, 1977, and after examining the testimony of the witnesses presented, we conclude that the Honorable Merwin Lynch gave adequate notice to both parties of his possible conflict arising from the interest in land in the disputed areas.
Because both parties were notified by the Judge in a timely fashion of the potential conflict of interest and because neither party moved to disqualify the Judge, we conclude that as a matter of law the Petitioner is not entitled to a writ of mandamus compelling the Judge to disqualify himself.
However, to avoid the appearance of impropriety and to minimize the controversy surrounding the case of Frank Yazzie et al. v. Ron Faich, Judge Lynch is hereby ordered to remove himself from the case and Judge Charley of the Shiprock District Court is appointed to preside over the case in the Window Rock District.
*181As the Petitioner requested that the orders issued by Judge Lynch be vacated, this Court has found it necessary to examine those orders.
We find no fault with the orders issued despite the alleged personal interest of the presiding Judge.
However, an examination of the issues being raised leads us to conclude that there is a strong likelihood of multiple, redundant litigation concerning the maps. Therefore, the presidents of ail chapters of the Navajo Nation are hereby requested to meet with their chapter constituents and establish the traditional chapter boundaries and certify and submit such suggested boundary lines to the Window Rock District Court within 45 days of the date of this opinion.
The Window Rock District Court shall hold public hearings on the question of chapter boundaries within 55 days of the date of this opinion and shall submit its findings in a written opinion within 60 days of the date of this opinion.
The District Court's opinion shall be certified to the Court of Appeals the same day it is issued. If any chapter so requests within 5 days, the Court of Appeals shall hold a hearing within 10 days of the date the District Court's opinion is certified.
Dr. Ron Faich and his staff are ordered to assist the chapters and the Window Rock District Court with the preparation of *182chapter boundaries.
The maps currently in the custody of the Window Rock District Court shall remain in the Court's custody.
A copy of this opinion shall be sent by the Clerk of the Court of Appeals to each chapter president.
Remanded for proceedings not inconsistent with this opinion.
BLUEHOUSE, Associate Justice, concurs. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502742/ | WALTERS, Associate Justice,
dissenting in part
I concur with the decision reached by this Court today except that I would not remove Judge Lynch from the case. Since all parties knew of Judge Lynch's potential conflict of interest and no objection was raised, I do not believe that the objection is now timely.
in my opinion, removing Judge Lynch from the case now allows counsel to raise an objection after he has lost the case on the merits. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502743/ | JOHN, Acting Chief Justice
On December 16, 1974, the District Court of the Navajo Nation at Chinle issued a decree of divorce between Richard and Marie Mike. At that time, the defendant was ordered to pay to the plaintiff $300.00 per month for child support for the parties* three minor children.
On April 14, 1977, the plaintiff filed a Petition for an Order to Show Cause alleging that the defendant had failed to pay child support for the period of June, 1975 through June, 1976. However, *184the petition admitted that during that period the defendant had custody of two of the children. Therefore, the petition alleged that the defendant owed only $1,300.00 for the thirteen month period. In addition, the petition alleged that the defendant had made only partial payments for the period of June, 1976, to April, 1977, and that the defendant was in arrear a total of $2,000.00.
The petition for an Order to Show Cause was filed in the Window Rock Judicial District and an Order to Show Cause was issued on April 15, 1977.
The records of the Window Rock Distrct Court are incomplete and confusing. It appears that the case was rescheduled several times and was finally heard on July 20, 1977.
According to the order of July 25, 1977, two hearings had been postponed because the defendant had failed to obtain counsel.
At the hearing on July 20, 1977, the defendant again appeared without counsel and the Court proceeded to hear the case.
The order of July 25, 1977, ordered the defendant to pay his back child support: over a four week period from August 3, 1977, to September 4, 1977. The total amount to be paid was $1,900.00. The Court further ordered the defendant to make all further child support payments as they came due.
*185On August 24, 1977, the defendant filed a Petition for a Stay of Execution with the District Court and Notice of Appeal and Request For A Tria! De Novo with this Court,
The request for a Stay of Execution was denied by the District Court on September 28, 1977.
On September 30, 1977, a Motion for a Stay of Execution was filed with this Court and was granted on the same day.
Because the Window Rock District Court failed to make a record of its proceedings and because Mr. Denetsosie failed to file a motion or brief opposing the appeal within the proper time period, a trial de novo was granted.
The trial de novo was scheduled for November 14, 1977, but Mr. Denetsosie filled to appear. The Court summarily found Mr. Denetsosie in comtempt of court and fined him $180.00. The hearing was rescheduled for December 9, 1977, at which time the Court agreed to hear Mr. Denetsosie's Motion for Reconsideration of the Order of Contempt.
At the trial de novo on December 9, 1977, the following determinations were made by this Court:
In June, 1975, the plaintiff sent two of the children to the defendant by public transportation. The children were sent with three *186days1 notice to the defendant and despite the inconvenience and expense to him.
However, the defendant did agree to assume responsibility and custody for the two children and agreed that the third child would remain with the plaintiff.
This custody arrangement lasted for the thirteen month period of June, 1975 to June, 1976, at which time the plaintiff again assumed custody.
During the thirteen month period, the plaintiff neither asked for nor intimated that she expected child support payments.
Apparently, the defendant resumed child support payments in July, 1976.
From August, 1976 through November, 1976, the defendant paid only $800.00 of the $1,200.00 child support due, leaving a balance of $400.00 owing.
From January, 1977 through March, 1977, the defendant paid only $600.00 of the $900.00 due, leaving an amount of $300.00 due.
It is the opinion of this Court that the two parties entered into an implied agreement in june, 1975, to each assume financial responsibility for the children in their custody. This implied agreement *187ended when the custody of the children was returned to the plaintiff.
Therefore, the defendant was under no financial obligation to pay child support in any amount form June, ¡475 through June, 1976.
However, the defendant was obligated to pay child support once the custody of the children was returned to the plaintiff.
From the evidence presented, it is the opinion of this Court that the defendant owes the plaintiff $400.00 in back child support for the period August, 1976 through November, 1976, and $300.00 in back child support for the period of January, 1977 through March, 1977.
Therefore, the decision of the Window Rock District Court, entered on July 25, 1977, is REVERSED.
The defendant, Richard Mike, is ordered to pay the plaintiff, Marie Mike, $700.00.
The Stay of Execution, issued on September 20, 1977, is VACATED.
On the matter of Mr. Denetsosie's Motion for Reconsideration of the Order of Contempt, the Court is of the opinion that the excuse offered by Mr. Denetsosie for his failure to appear is poor. His absence seems to have been caused by poor law office practices and placement of personal matters above the interests of his clients.
*188Therefore,, the Motion for Reconsideration of the Order of Contempt is DENIED.
BLUEHOUSE r Associate Justice, and WALTERS, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502744/ | PER CURIAM
This case comes on appeal from a decision of the Shiprock *190District Court issued May 18, 1977, enjoining the defendants from expending any funds appropriated by the Navajo Tribal Council for the legal expenses of Peter MacDonald and declaring the appropriation illegal for failure to comply with certain tribal procedures and for being violative of certain substantive rights of the Plaintiffs.
On May 3, 1977, the plaintiffs filed a complaint in the Shiprock District Court asking for an injunction prohibiting the expenditure of $70,000 appropriated for Chairman MacDonald's private legal expenses by Resolution CAP-32-77, dated April 5, 1977. The complaint asked the Court to declare the action of the Tribal Council void for its failure to have the Budget and Finance Committee of the Navajo Tribal Council consider the matter prior to the Council's action pursuant to 2 N.T.C. 365. The complaint further asked the court to declare the Council's action unlawful because the resolution was not on the agenda approved by the Area Director of the Bureau of Indian Affairs.
The complaint also alleged that the expenditure authorized by the resolution was illegal under 25 U.S.C. 81 as no attorney contract was presented as required therein.
Also on May 3, 1977, the plaintiffs requested a temporary restraining order until the matter could be heard. The motion for the temporary restraining order requested that no security bond be required.
*191On May 3, 1977 the Shiprock District Court, the Honorable Charley John presiding, issued a temporary restraining order ex parte restraining the defendants from expending any of the $70,000 appropriated by Resolution CAP-32-77, No security bond was required by the Court.
On May 17, 1977, defendants moved the Court for an order changing venue to Window Rock on the grounds that the defendants were all residents of Window Rock, that the cause of action arose in Window Rock and on the grounds that Window Rock would be the most convenient forum for all parties.
At the same time, defendants moved to disqualify the Honorable Charley John on the grounds that he was related to one of the plaintiffs' attorneys.
Both motions were denied by the Court on May 17, 1977. A motion to dissolve the temporary restraining order was filed by the defendants on May 17, 1977.
On May 18, 1977, a hearing was held in the Shiprock District Court on the complaint and request for a permanent injunction.
An order was entered on May 25, 1977, issuing a permanent injunction prohibiting the expenditure of any funds appropriated under Council Resolution CAP-32-77 and declaring the Council's action illegal for failure to comply with 2 N.T.C. 365. The order and written opinion *192subsequently issued declared that the matter was not a non-justiciable political question and that the action of the Council represented an illegal use of public funds for a private purpose.
The Court further found that there was no adequate remedy at law as there was little likelihood of the funds being recovered once they were spent.
Subsequently, on June 6, 1977, the defendants filed a motion to correct error and dissolve the injunction.
The motion to correct error was denied by the Ship rock District Court on June 6, 1977.
The defendants filed this appeal on June 19, 1977.
On August 2, 1977, Chief Justice Virgil Kirk, Sr., appointed retired judge Chester Yellowhair as Acting Chief Justice for this case and appointed retired Chief Justice Murray Lincoln and retired judge Tom B. Becenti as Associate Justices.
The plaintiffs immediately filed a motion to vacate the irdt s of August 2, 1977, stating as grounds therefor that the appointments violated Title 7, Section 203 of the Navajo Tribal Code which states that retired judges may only be called to relieve congestion in the docket of the Navajo courts.
*193On August 19, 1977, Chief Justice Kirk vacated his orders of August 2, 1977, and disqualified himself in favor of Homer Bluehouse, Acting Chief Justice by prior designation.
Oral Argument on this case was presented on October 19, 1977.
II.
The issues presented on appeal my be summarized as follows:
1. Whether venue as to Peter MacDonald and Eldon Hansen was properly found to lie in the Shiprock district.
2. Whether the District Court erred in not requiring a bond to be posted, pursuant to Rule 18 of the Navajo Rules of Civil Procedure.
3. Whether plaintiffs in this cause of action lacked standing to sue.
4. Whether the Navajo Tribal Council was an indispensable party to this suit.
5. Whether actions of the Navajo Tribal Council are reviewable by courts of the Navajo Nation.
*1946. if such actions are reviewable, what standards are to be used in reviewing the legislation in question here.
7. Whether the expenditure in question was in violation of 25 U.S.C. 81.
8. Whether the expenditure of Navajo Tribal funds in this instance was for a public or a private purpose and, if for a private purpose, whether Navajo law prohibits such an expenditure.
III.
We find that the Shiprock District Court did not err in determining that venue was proper in that district as to Peter MacDonald and Eldon Hansen.
Venue is both a tool of sound judicial administration and a mechanism to ensure a fair trial for the parties and a minimum burden on them and the courts.
Rule 28 (Venue) of the Navajo Rutes of Civil Procedure says "an action shall be filed in the district in which any defendant resides or in which the cause of action arises..." [emphasis added]. The Shiprock District Court entertained the suit against Peter MacDonald on the grounds that he is registered as a voter in Teec Nos Pos, which is within the Shiprock district, and that this was sufficient indication of domicile to bring the suit within the proper scope of the rule. The *195peculiar circumstances of Mr. MacDonald's status as the Navajo Nation's chief executive officer carried great weight with the District Court in making decision to reiy on this technical indicator of domicile. This point is explained more fully below. Given the finding as to venue for MacDonald? venue as to Eldon Hansen was proper by operation of the rule. We agree fully with the District Court's analysis.
There is another consideration to this issue besides the purely technical analysis. That is the court's concern for fairness. It is a fact that, for all practical purposes, Appellant MacDonald lives in Window Rock, not Teec Nos Pos. But for Navajos, domicile is not as clear or fixed as it might be for non-Indians, if indeed the matter is really all that clear for our non-Indian brothers.
By custom, Navajos consider themselves to be from the same area their mothers are from. Thus, wherever they may be, they return home frequently for religious ceremonies and family functions, as well as to vote. By custom, Navajos are allow to register and vote in the area where they are from, rather than where they live. Even the Navajo Tribal Code's election law is silent on this point. Perhaps this custom may have to be breached in the future, but for the present, Navajos may be considered to be domiciled where they maintain their traditional and legal ties, regardless of where they actually live.
Given the resources available to the Chairman and the Controller to defend against this suit and the underlying tradition concerning residence, we agree with the District Court that it would *196have been grossly unfair to have required plaintiffs below to file their action in the Window Rock District Court. This is not to say that we sanction in our opinion here "nationwide" venue as to suits against tribal officials. We do not. We here rule only that the circumstances of this particular suit justified a finding of venue in the Shiprock district by the District Judge there.
Assuming, however, that venue in the Shiprock District Court was improper, that error alone would still not warrant a reversal of the District Court's decision.
It is a well settled principle of law that absent a strong showing a bias to the defendant, venue errors are treated as harmless. See Chicago, Rock Island and Pacific R. Co. v. Hugh Breeding, Inc., 232 F.2d 584 (10th Cir., 1956), cert. den. 355 U.S. 880 (1957).
IV.
The issue of fairness arises again in the question of whether it was error not to require Plaintiffs to post security, pursuant to Rule 18. On its face, that rule seems absolute. It says, at the applicable part:
No restraining order or injunction shall issue except upon the giving of security by applicant, in such sum as the court deems proper for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.'
*197However, a close reading of the rule indicated the purpose of security: to compensate for damages likely to be sustained. It is entirely within the discretion of the court to determine whether any security at all is needed and , if so, what the sum should be.
Appellants have made no real case for the injury supposedly sustained by them. Instead, they have relied on a technical but erroneous interpretation of the rule in the hopes of erecting an insurmountable barrier to the suit. We reject this argument.
V.
Appellants have insisted that none of the Appellees had standing to bring this cause before the District Court. The point is made that the Appellees suffered no personal injury as a result of the Council's action and the expenditures made thereafter.
The Appellees divide into two categories, the first being composed of the constituents Mary J. Wallace and Cecil Largo and the second being composed of four members of the Council itself. Ordinarily, private citizens lack standing to litigate the validity of expenditures from the public treasury.
But this is not an absolute rule. As the Supreme Court stated in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947:
When the emphasis in the standing problem is placed on whether the person invoking a federal court's jurisdiction is a proper party to *198maintain the action, the weakness of the Government's argument in this case becomes apparent. The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problem arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has "a personal stake in the outcome of the controversy," Baker v. Carr, 7 L.Ed.2d at 678, and whether the dispute touches upon "the legal relations of parties having adverse legal interests." Aetna Life Insurance Co. v. Haworth, 81 L.Ed. at 621, 108 ALR 100. A taxpayer may or may not have the requiste personal stake in the outcome, depending upon the circumstances of the particular case.
It is not sound practice to open the court's doors to suits by every citizen having a disagreement with policy decisions of the legislative body. Courts are not a second political arena for losing combatants to stage a re-match. However, there are occasions when a private citizen's interests rise above the policy decision represented by the expenditure and reach the level of civil rights which the legislative body is no less charged with protecting than the courts.
These kinds of rights are those which the United States Supreme Court was speaking of in Flast v. Cohen, supra.
We are in agreement with that Court's thinking on this point. *199The question is: what fundamental fights of Cecil Largo and Mary Wallace are at issue here?
The answer does not lie in a non-Indian analysis. This expenditure raises a question peculiar to Navajo tradition and taw (albeit similar to other American Indian concepts of property). Because this issue is discussed at length in Navajo later in our decision, it is sufficient here to say that we find that on the facts of this case we can agree with the District Court that these two plaintiffs had standing to sue.
As to Wilson Halona, Raymond R. Smith, Willis H. Peterson, and Jimmy Woody, the question of standing is different. They are all members of the Navajo Tribal Council. This petition they presented to the Shiprock District Court raised questions which would not very often be raised in any other government of significance in the United States.
The first question is what law, If any, governs the conduct of Navajo Tribal Council proceedings. The second question is how conflicts among various pieces of legislation are to be resolved. And the third question is who is to review actions of the Council and what standards of review are to be used.
If members of the Council do not have standing to raise these questions, then who does? We cannot imagine under what principles a member of the legislative body would lack standing to bring before the court such momentous issues.
*200Their interest in having these questions answered by the courts--even if resolved adversely--is clear:
the questions are really questions about the meaning of "due process" in its most elemental state and the absence or presence of proper procedure in legislative proceedings can materially alter the outcome of any given proceeding.
The question of standing cannot be allowed to deflect our courts from examining the merits of the case when the connection between the plaintiffs and the cause of action is not inconsequential. The connection here is not tenuous nor are the plaintiffs seeking to litigate matters which really do not affect any of their legitimate interests.
Otherwise, "lack of standing to sue" becomes a convenient but abused execuse for courts to avoid dealing with politically sentitive cases. We have no need of such an excuse here.
VI.
The claim that the Navajo Tribal Council is an indispensable party to this suit misses the point of such an argument. Parties are indispensable, according to Black's Law Dictionary, as well as American Jurisprudence 2d, and other scholarly works, when:
(they have) an interest of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.
*201The objection to the absence of an indispensable party is one best analyzed in light of the underlying policy considerations which give rise to the label in the first place.
The term is not a magic phrase which, when inserted into a defendant's answer, automatically strips a court of its right to hear the case. If an examination of the facts of the case reveals that a party truly must be represented in a given case to do justice, then the court should not proceed without that party. If the party may be joined, then joinder is the proper course for the court. If the party cannot be joined, then the suit must be dismissed.
In Shields v. Barrow, 58 U.S. 130, 15 L.Ed.158, the United States Supreme Court said (quoting itself in Mallow v. Hinde, 12 Wh. 198) that "no court can adjudicate directly upon a person's right without the party being either actually or constructively before the court."
The key word is "constructively". As we understand this term and the general trend of the law concerning indispensable parties, it is possible that the interests of such a party may be in certain cases adequately and fairly represented by another litigant, thus in effect putting the indispensable party before the court for all the purposes which the doctrine seems to effectuate.
Here, the Legal Deprtment of the Navajo Nation represented the Chairman of the Tribal Council, the Controller, and the Council as a whole. The Chairman, as the chief executive officer of the Navajo *202Nation and as head of the Council, is charged with seeing to it that the Legal Department (and the Office of the General Counsel, to which the Legal Department is subordinate) represents the interests of the Council.
We do not believe that the Legal Department has been remiss in its duties. Almost all of the arguments propounded by the attorney for Appellants have actually been arguments on behalf of the Council rather than for either Appellant personally.
This entire matter really arises because of a legal fiction. Sovereign immunity protects the Navajo Nation and its governing body, the Council, from suit. However, this doctrine does not protect wrongdoing. Rather, it preserves the dignity of the sovereign. Thus suits are brought against ministers and employees of the sovereign.
For example, the United States cannot be sued without their consent and, therefore, the Congress as such may not be sued. However, many legislative acts are called into question through the mechanism of suits against individuals. Cabinet secretaries are frequently sued in the course of implementing legislation objected to by certain affected individuals or groups. See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636; Califano v. Jobst, _ U.S. _, 98 S.Ct._, 54 L.Ed.2d 228.
Of course, legislation is frequently the issue in appeals from criminal prosecutions by U.S. attorneys. See Scarborough v. U.S. *203_, 97 S.Ct _, 52 L.Ed.2d 58, and Jeffers v. U.S., _ U.S. 97 S.Ct. _, 53 L.Ed.2d 168.
The Speaker of the House of Respresentatives has been sued by a member of the House in litigation whose central issue was the question of the power of the House itself. The Supreme Court did not hold the House to be an indispensable party to that suit. indeed, the question was not even raised. Powell v. McCormack, 395 U.S. 486, 23 L.Ed.2d 491, 89 S.Ct. 1944.
What is operative in all of these examples Is the fact that important questions about legislation are presented to courts without the sovereign being joined as an Indispensable party. Of course, doing this would then raIse the protection of Immunity and result In the dismissal of the suit If Appellant's logic prevailed. This court will not be trapped by such sophistry and thereby surrender its right and neglect Its duty to protect the rights of our people.
We agree once again with the District Court that the legitimate interests of the Navajo Tribal Council were properly before the court and adequately and fairly represented by counsel without the Council's having been joined as an "Indispensable party".
VII.
The right and power of the Navajo courts to authoritativ&y review actions of the Navajo Trib& Councfl has been caUed into ques- *204tion before, not only in our courts, cf Dennison v. Tucson Gas and Electric (1947), but also in federal courts. See Arizona Public Service v. The Navajo Tribe, (Arizona District, 1977) and Arizona Public Service v. The Navajo Tribe, (New Mexico District, 1977).
There is no question in our minds about the existence of such authority. When the Navajo Tribal Council adopted Title 7, Section 133 of the Tribal Code, it did not exclude review of Council actions from its broad grant of power to the courts.
Indeed, in our opinion, Title 25, Section 1302 of the United States Code precludes such an exclusion of judicial review of legislative actions because that law is a mandate for Indian governments which necessarily assumes and requires judicial review of any allegedly illegal action by a tribal government.
In particular, 25 U.S.C. 1302 (8) prohibits the denial of equal protection of the laws and deprivation of liberty or property without due process of law. We cannot imagine how any legislative body accused of violating these primary rights could be the judge of its own actions and at the same time comply with the federal law. Of course, this is not possible.
Judicial review must, therefore, necessarily follow. If the courts established by Indian tribes cannot exercise this power, then the only alternative is review in every case by federal courts.
*205It is inconceivable to us that the Navajo Tribal Council would prefer review of its actions by far-away federal courts unfamiliar with Navajo customs and laws to review by Navajo courts. We know that this is not the case because the Council has not limited the power of Navajo courts in this respect and his never indicated a willingness to do so.
The courts of the Navajo Nation, including this Court, have frequently reviewed and interpreted legislation passed by the Council and executive actions of the Chairman of the Council, See Dennison v. Tucson Gas and Electric, (Navajo Court of Appeals, December 23, 1974).
Our right to pass upon the legality or meaning of these actions has been questioned in certain places but never by the Council or its Chairman. That is because they have a traditional and abiding respect for the impartial adjudicatory process. When all have been heard and the decision is made, it is respected. This has been the Navajo way since before the time of the present judicial system. The Navajo People did not learn this principle from the white man. They have carried it with them through history.
The style and the form of problem-solving and dispensing justice has changed over the years but not the principle. Those appointed by the People to resolve their disputes were and are unquestioned in their power to do so. Whereas once the clan was the primary forum (and still is a powerful and respected instrument of *206justice), now the People through their Council have delegated the ultimate responsibility for this to their courts. That is why 7 N.T.C. 133 is so broadly written.
In any case, judicial review by tribal courts of Council resolutions is mandated by the Indian Civil Rights Act, 25 U.S.C. 1302.
We therefore uphold the Shiprock District Court's determination on this point.
VIII.
In analyzing the propriety of Council Resolution CAP-32-77, we must look first to the existing applicable law and then we must determine what effect is to be given to Resolution CAP-32-77, given that it is inconsistent with the codified law.
Appellants urge upon this Court the proposition that the latest legislation automically repeals all prior inconsistent acts, or presumably at least supersedes it in some indeterminate piecemeal manner. At first glance, this seems logical enough and has the appeal of judicial economy and finality. We take judicial notice that certain legislation passed subsequent to CAP-32-77 specifically noted that it repealed ail prior inconsistent legislation. See ■ CO-85-77, (Fiscal Near 1978 appropriation legislation).
However, this view is really no help in analyzing the effect *207of CAP-32-77, because that legislation did not include an express re-pealer clause nor was it passed ¡n a manner that indicated a clear intent on the part of the Council as to its effect on existing legislation.
Council Resolution CF-18-77, adopted by the Council February 28, 1977, sets forth the duties and powers of the Budget and Finance Committee of the Navajo Tribal Council. Among the procedures set forth in that statute for the control of the budgetary process of the Navajo Nation's government is the requirement that requests for interim budget revisions be submitted to the Committee for its approval or disapproval prior to their submission to the full Council, if submission to the Council is required at all.
Section 10 of the statute (which section clearly was intended to take effect immediately, as opposed to section 9) makes no exeception for any kind of interim budget revisions. It was not argued by counsel for Appellants that the appropriation at issue here was anything but an interim budget revision, not could it have been anything else since the budget for Fiscal Year 1977 had long before been approved and implemented when this emergency appropriation was requested.
In fact, before approving the appropriation, the Navajo Area Director of the Bureau of Indian Affairs specifically requested the Chairman to identify the source of the funds for this special expenditure. The Chairman did so, apparently without consultation either with the Budget and Finance Committee or the Council.
*208Therefore, it is clear that the Council intended to and did establish a budget procedure that requires the Budget and Finance Committee's approval of interim budget changes such as the one represented by CAP-32-77 before such changes are voted on by the full Council.
We cannot understand how any court could assume without clear legislative direction that the legislature intended to override in a particular, hastily-drawn and approved resolution the fiscal and legislative system that they had so carefully considered and approved only two months before. ff any later minor legislation not passed in accordance with the procedures established by the Council itself can automatically override such procedures, one would rightfully wonder what the point of having procedures would be. What the courts would be left with is chaos. No one could ever be sure whether the procedures established by the Council really had to be complied with. Due process of law would be a joke, available when useful to certain people, something to be ignored when not so useful.
We do not intend to be the ones to tell the Navajo Tribal Council that it was "going through the motions" of approving meaningless legislation when it passed CF-18-77 and that this Court can give no substance to that resolution. In the absence of a clear intent on the part of the Council to repudiate or suspend that act and in the absence of clearly-defined Council procedures, we must rule that CAP-32-77 is the invalid legislation because it was passed in a manner inconsistent with the substantive legislation of CF-18-77.
*209We are reminded at this point that the Navajo Nation possesses no constitution. It is for this reason that the Navajo courts must be so careful to preserve the concepts of due process of law embodied in the Indian Civil Rights Act. Analyzing legislation so as to guarantee that the process by which the legislature gives us the laws which we must interpret and enforce is consistent and fair to all is absolutely essential to the preservation of Navajo sovereignty and to the avoidance of actions which might otherwise be in violation of federal law.
Had CAP-32-77 expressly repealed all prior inconsistent resolutions (as did CO-65-77) or at least had it expressly suspended CF-18-77, then we would have no problem upholding CAP-32-77. But unfortunately, the drafters of that act were hasty and consequently deficient in their work. As a result, we must rule that CAP-32-77 is invalid.
IX.
This Court, after reading the briefs, on its own raised the question of the relationship between this expenditure and 25 U.S.C. 81, Counsel for both appellants and appellees were questioned on this matter.
This Court has long been aware that the Department of Interior has interpreted this statute to mean that any and all attorneys receiving tribal monies for services rendered to a tribe or officers and organizations of the tribe acting in their tribal capacities must first *210have a contract approved by the appropriate tribal governing body and by the Department of Interior.
We cannot understand this long-standing interpretation at alt. 25 U.S.C. 81 is clearly intended to cover only those attorneys providing claims services. "Claims attorney" is a term of art. The services such as those which F. Lee Bailey provided to the Navajo Nation on behalf of Peter MacDonald are clearly not covered by 25 U.S.C. 81.
We note that this was the position taken by the Field Solicitor for the Navajo Area in an unlightening memorandum from him to the Area Director, who had raised the same question we now raise. However, the matter concerns us because we are charged with applying federal law when it may be applicable. See 7 N.T.C. 104 (a). We would have had no doubts that 25 U.S.C. 81 was inapplicable except for its common application to all attorneys receiving tribal monies for legal services to the tribe.
It cannot seriously be argued by appellants that Mr. Bailey rendered no service to the Navajo Nation because the very resolution authorizing the payment of money to him required him to submit invoices to the Controller of the Navajo Nation Is order to receive payment. in addition, Mr. Stuhff, counsel for Appellants, argued that the expenditure served a public purpose in that the Council was providing legal services for Mr. MacDonald oniy in his capacity as Chairman of the Navajo Tribal Council. We take him at his word insofar as the *211internal consistency of Appellants1 argument goes.
We therefore rule that the appropriation was not in violation of 25 SJ.S.C. 81 and add that we expect consistency in the application of this statute from the Department of Interior. We do not expect that any tribal attorneys rendering non-claims services to the Navajo Nation will be asked to comply with this statute in view of the interpretation (such as it was) rendered in Mr. Bailey's case.
X.
The final issue is whether the expenditure was for a public or a private purpose and, if for a private purpose, whether Navajo law prohibits such an expenditure.
This question can only be answered by reference to Navajo tradition and by an analysis of Navajo history, especially as that history related to the land which produces all Navajo income. The Navajo People are supreme and all residual power lies with the People. In the end, all monies spent by the Navajo Tribal Council are monies of the Navajo People.
Because we cannot adequately explain our ruling on this point in English, we have chosen to announce this part of our decision from the bench in Navajo. This part of our opinion will then be transcribed into Navajo at the earliest possible date and issued as a supplemental part of this descision.
*212For. the reasons we have already stated above in English, the decision of the Shiprock District Court of the Navajo Nation is hereby AFFIRMED. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502746/ | NESWOOD, Acting Chief Justice
Prior to his death on October 12, 1972, Chisney Benally held a grazing permit for District 12 with a carrying capacity of thirty (30) sheep units.
*220Shortly before his death, the decedent orally devised his grazing permit to his wife, Christine Benally. This was done in the presence of his wife and his four (4) children by her, Stella J. Benally, Casey Benally, Clarence P. Benally and Marilyn Dawes. The decedent's children by his first marriage, Florence Warner, Esther Joe, Ruth Charley, and May Jean Benally, were not present at the time the decedent devised the permit.
The appellees filed a petition for probate of the estate in the Shiprock District Court on October 18, 1976, alleging that the only item within the estate was the grazing permit, which was community property. The petition named only the four (4) children of the second marriage.
Three of the decedent's children of his first marriage then filed a motion to intervene and maintained they were entitled to a portion of the estate.
On January 20, 1977, the appellee filed an amended petition naming the children from both marriages. The petition alleged that the decedent had orally devised the grazing permit to the appellee in the presence of his immediate family.
On February 7, 1977, appellants filed a "Claim Against The Estate" alleging that the permit was given to Ruth Charley by the decedent.
*221The Shiprock District Court found that the decedent made an oral will in the presence of his immediate family and therefore assigned the permit to the appellee.
From the probate decree of the Shiprock District Court, Ruth Charley appeals.
The appeal in this matter raises four issues:
1. What is the definition of the "immediate family" for the purpose of an oral will?
2. Did the decedent satisfy all the requirements in making an oral will?
3. Are decedent's widow and children competent to testify as to the oral will?
4. May a grazing permit be devised through a valid oral will?
In the case of In Re Estate of Lee (1971), the Court of Appeals stated:
"It is a well established custom that a Navajo may orally state who shall have his property after his death when all of his immediate family are present and agree and that such a division will be honored after his death. We know of no other custom in this respect. We hold, therefore, that unless all of the members of his immediate family are present and agree a Navajo cannot make an oral will. Since the wife and children were not present when the deceased made the alleged oral *222will to the petitioner, we hold that it was invalid".
The appellant maintains that the decedent's children by his first marriage are members of the immediate family. Since these children were not present when the decedent devised the grazing permit, the appellant claims that the requirement of In Re Estate of Lee was not met and that there was no oral will.
This Court has examined the definitions of "immediate family" by other courts. These courts have all held that mere blood relationship does not make a person a member of the immediate family.
In Lewandowski v. Preferred Risk Mutual Insurance, 33 Wis.2d 69, 146 N.W.2d 505, the Wisconsin Supreme Court stated:
"...'immediate family' means person related by blood, adoption or marriage and living together in the same household, and immediate relative is not necessarily a member of the immediate family", (emphasis added)
In Cincinnati, N. & C. Railway Company v. Peluso, 293 S.W.2d 556, 558, the Court of Appeals of Kentucky stated:
"the 'immediate family1 are those members of the same household who are bound together by ties of relationship.11
We adopt the rule that: the children of the decedent's first *223marriage, who were not living with the decedent when he died, are not members of the immediate family for the purpose of an oral will.
We are limiting this rule on the immediate family to cases involving oral wills because the Court is mindful of the Navajo concept of the extended family. This rule is adopted because it would work too great a hardship on the Navajo People to require the presence of all who might be considered immediate family by the Navajo Extended family concept. Since many Navajo cannot write, cannot afford to have an attorney write a will and do not understand the concept of a written will, is important that there be some alternate method by which a person may devise his property.
IV
Since the children of the first marriage are not members of the decedent's family, we look to see if the remaining requirements of an oral will were met.
The will was made in the presence of the decedent's wife and children of that marriage. No evidence was produced at the trial to show any disagreement among the members of the immediate family. We therefore conclude that there was a valid oral will.
V
Appellant argues that the appellee, and her children should *224not be allowed to testify to the oral will by virtue of the Dead Man's Act. The effect of the application of the Dead Man's Act would be to invalidate all oral wills as the immediate family could not testify.
We stated previously in this opinion that it is necessary to allow for oral wills in order to avoid hardship for the Navajo People. Accordingly, we decline to impose a rule of law that would make it impossible to make an oral will.
The Dead Man's Act has never been adopted in the Navajo Nation. We feel there is ample opportunity for an opposing party to cross-examine the witnesses and the credibility of the testimony can still be challenged.
VI
Appellant's final argument is that a grazing permit can only be devised by a written will. For this proposition, appellant cites 3 N.T.C 355(a) which states:
(a) Permittees and licensees may execute a will designating the person or person(s) to receive the permit or license, which must be approved by the Court of the Navajo Tribe after the death of permittee or licensee. In the absence of such an instrument approved by the Court, and unless stipulated to the contrary under agreement of the potential heirs approved by the Court, the Court is hereby authorized *225to distribute such permits or licenses in accordance with moral and legal rights as determined by the said Court,
As we stated earifer in this opinion, it would create a great hardship for the Navajo People if they were required to make written wills in every instance in order to devise their property. Therefore, the law must be interpreted liberally to allow oral wills if the statute can be so construed without changing its intent or meaning.
Black's Law Dictionary defines "execute" as to complete; to make; to perform; to do. The definition does not require that the execution be in writing.
We believe that 3 N.T.C. 355(a) should be read in this manner. Nothing in the Navajo Tribal Code leads us to believe that the Tribal Council intended to require a written document.
The judgment of the District Court is AFFIRMED.
BLUEHOUSE, Associate Justice and WALTERS, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502748/ | ORDER DISMISSING PETITON FOR WRIT OF MANDAMUS
The Petition for a Writ of Mandamus having been considered by the Court, the Court finds:
The Shiprock District Court has granted a change in venue in the above-entitled action.
2. The relief prayed for by the petitioner has been completely granted by the district court.
Therefore, the Petition for a Writ of Mandamus is DISMISSED.
Dated this 22nd day of November, 1977.
Virgil L. Kirk, Sr. Chief Justice of the Navajo Nation | 01-04-2023 | 11-23-2022 |
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