Francis v. Dana-Cummings

• Decision Date: 23 January 2007
• Citation: 915 A.2d 412,2007 ME 16
• Parties: Pamela FRANCIS v. Colleen DANA-CUMMINGS et al.
• Court: Maine Supreme Court

915 A.2d 412

2007 ME 16

Pamela FRANCIS v. Colleen DANA-CUMMINGS et al.

Supreme Judicial Court of Maine.

Argued: October 12, 2006.

Decided: January 23, 2007.

Curtis Webber, Esq. (orally), Linnell, Choate & Webber, LLP, Auburn, for plaintiff.

Craig E. Francis, Esq. (orally), Falmouth, William H. Dale, Esq., Jensen Baird Gardner & Henry, (for Passamaquoddy Tribe), Kaighn Smith, Jr., Drummond Woodsum & MacMahon, Portland, (for Passamaquoddy Housing Authority), Norman P. Toffolon, Esq., Machias, for Passamaquoddy Tribe and defendants.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, LEVY, and SILVER, JJ.

ALEXANDER, J.

[¶ 1] The Passamaquoddy Tribe (the Tribe) appeals from an order of the Superior Court (Washington County, Hunter, J.) denying the Tribe's motion to intervene in these consolidated matters pursuant to M.R. Civ. P. 24. After clarifying the issues that are before the Superior Court for decision, we vacate and remand.¹

I. CASE HISTORY

[¶ 2] The issues before us arise out of four separate lawsuits filed by Pamela Francis against the Passamaquoddy Housing Authority (PHA); its former Executive Director, Colleen Dana-Cummings; and several other members of the Passamaquoddy Tribe. The PHA is a quasi-municipal entity located on the Pleasant Point Passamaquoddy Reservation in Perry, Maine.

[¶ 3] Francis is a member of the Passamaquoddy Tribe and, in 1995, served as Executive Director of the PHA. After she was terminated from her employment, Francis brought a breach of contract and civil rights action against the PHA. The Superior Court dismissed the action, holding that it involved "internal tribal matters" over which Maine courts lacked jurisdiction by operation of 30 M.R.S. § 6206(1) (2006). Title 30 M.R.S. § 6206(1) states, in pertinent part:

Except as otherwise provided in this Act, the Passamaquoddy Tribe and the Penobscot Nation, within their respective Indian territories, shall have, exercise and enjoy all the rights, privileges, powers and immunities . . . of a municipality of and subject to the laws of the State, provided, however, that internal tribal matters, including membership in the respective tribe or nation, the right to reside within the respective Indian territories, tribal organization, tribal government, tribal elections and the use or disposition of settlement fund income shall not be subject to regulation by the State.

[¶ 4] On appeal, we vacated the dismissal, holding that the PHA is not part of the Tribe but is, instead, an entity created by State statute that "must be treated like any other municipal corporation—subject to the jurisdiction of our courts." Francis v. Pleasant Point Passamaquoddy Hous. Auth., 1999 ME 164, ¶¶ 8-9, 740 A.2d 575, 578-79 (Francis I). Accordingly, the action was not subject to the jurisdictional limitation imposed on State courts by section 6206(1). Id. ¶ 9, 740 A.2d at 578-79.

[¶ 5] During some of the time that Francis I was pending and subsequently, Francis had resided in Old Orchard Beach. On or about February 24, 1998, representatives of the PHA entered and took possession of a residence that Francis had formerly occupied on the Passamaquoddy Reservation at Pleasant Point. Francis asserts that the residence was her private property, inherited from her father, and that she suffered the loss of household furnishings and other damages as a result of the entry into her residence.

[¶ 6] On February 7, 2002, Francis filed a lawsuit in the Passamaquoddy Tribal Court against the PHA seeking damages under the Passamaquoddy Tribe's Fair Housing Code and Maine state law.² The PHA filed a counterclaim seeking to quiet title under tribal and federal United States Department of Housing and Urban Development (HUD) laws, and seeking injunctive relief to prohibit Francis from occupying, controlling, or possessing the property. The parties filed cross-motions for partial disposition. The Tribal Court (Point Pleasant Division, Irving, J.) held that "the Fair Housing Code of the Passamaquoddy Tribe of the Pleasant Point Reservation [as opposed to state law] provides the exclusive remedies available to the parties." Because of unresolved factual disputes, the case is pending for trial in Tribal Court on both Francis's affirmative claims for damages under the Fair Housing Code and PHA's counterclaim. The Tribal Court action has been stayed pending resolution of the Superior Court actions.

[¶ 7] On February 13, 2002, Francis filed a complaint in the Superior Court against Dana-Cummings alleging the same facts as those in her complaint in Tribal Court. Francis asserted violations of the Maine Civil Rights Act,³ trespass,⁴ and illegal entry⁵ and eviction.⁶ Dana-Cummings timely answered alleging affirmative defenses, claiming that Francis does not have an ownership interest in the property and that PHA lawfully took control of the property to protect it from frequent use by teenagers for drinking and drug abuse. Additionally, Dana-Cummings filed a third-party complaint alleging that she was, at all times, acting under the direction of the PHA and therefore, the PHA is responsible for any damages that Francis may have suffered.

[¶ 8] Francis filed another lawsuit in the Superior Court in October 2002 against other individual members of the Passamaquoddy Tribe who served as PHA officials in February 1998, alleging the same facts and violations of the Maine Civil Rights Act.⁷ The Superior Court (Jabar, J.) granted a motion to consolidate the two cases.

[¶ 9] The PHA, as a third-party defendant, filed a motion to dismiss under M.R. Civ. P. 12(b)(6), claiming that the state court lacked subject matter jurisdiction because the case involved an "internal tribal matter." Dana-Cummings argued that if the court dismissed her third-party complaint for failure to state a claim and want of jurisdiction, the Court should additionally dismiss the complaint against her. The Superior Court (Mead, J.) concluded that because the dispute was between members of the Passamaquoddy Tribe regarding conduct that occurred on the reservation, it was an "internal tribal matter." The court dismissed both the complaint and the third-party complaint for failure to state a claim. The only issue appealed was the dismissal of Francis's complaint against Dana-Cummings.

[¶ 10] We reviewed the Superior Court's judgment based solely on the facts as Francis alleged them because the trial court had treated the matter as a motion to dismiss pursuant to M.R. Civ. P. 12(b)(1). Francis v. Dana-Cummings, 2004 ME 4, ¶ 9, 840 A.2d 708, 710 (Francis II). We vacated the Superior Court's judgment in favor of Dana-Cummings, concluding that the record was insufficient to establish whether the dispute was between two tribal members and whether the dispute arose "out of tribal law and regulations." Id. ¶¶ 12-15, 840 A.2d at 710-11. Without these facts on the record, we held that the motion court could not make the determination that the dispute constituted "an internal tribal matter," and we remanded the case. Id. ¶ 18, 840 A.2d at 711.

[¶ 11] On our remand, Dana-Cummings filed a motion for summary judgment based upon the court's alleged lack of subject matter jurisdiction, and the Superior Court (Gorman, J.) granted her motion.

[¶ 12] On February 18, 2004, Francis filed a complaint in Superior Court against the PHA itself, alleging the same facts and violations of the Maine Civil Rights Act⁸ as in her prior suits against the individuals named in Francis II. The PHA filed a motion for summary judgment, based on the court's alleged lack of subject matter jurisdiction. The Superior Court (Gorman, J.) denied the motion.

[¶ 13] Both Francis and the PHA appealed the rulings adverse to them, which we consolidated. We held that only the Tribe, not its individual members, could "invoke the protections of the `internal tribal matters' provision." See Francis v. Dana-Cummings, 2005 ME 36, ¶ 6, 868 A.2d 196, 199 (Francis III). Because the Tribe was not a party to the action and we had concluded that the individual members lacked standing to raise the issue of subject matter jurisdiction, we affirmed the denial of summary judgment against the PHA and vacated the summary judgment in favor of Dana-Cummings. Id. ¶ 2, 868 A.2d at 198.

[¶ 14] On remand, the Tribe moved to intervene pursuant to M.R. Civ. P. 24, as a defendant in the consolidated cases. It simultaneously filed motions to dismiss for lack of subject matter jurisdiction or for summary judgment in both cases. The Superior Court (Hunter, J.) denied the Tribe's motions to intervene, and with intervention denied, dismissed its motions to dismiss or for summary judgment as moot. The court held that the Tribe had no right to intervention because the litigation involved claims that are personal to Francis and because the Tribe failed to demonstrate that it would be directly affected by the outcome of the litigation. The court also concluded that the Tribe's motion was untimely because the Tribe "has not previously sought to intervene over the many years" the litigation had been pending and because it found intervention at this stage would prejudice Francis.

[¶ 15] The Tribe appealed these decisions. The appeal is properly before us because the denial of a motion to intervene pursuant to M.R. Civ. P. 24, although interlocutory, may be immediately appealed by the moving party. Donna C. v. Kalamaras, 485 A.2d 222, 222-23 (Me.1984).

II. LEGAL ANALYSIS

[¶ 16] Review of Francis I, Francis II, and Francis III, and the continuing assertion of claims by the PHA that its activities are subject to protection as "internal tribal matters" emphasizes the need for clarification of the status of the parties in light of our rulings in prior cases. The PHA was created in 1971. At the time, the Tribe had no independent governing authority and the State provided services on the Passamaquoddy Reservation equivalent to services a municipality would normally provide. See Indian...