Goes Ahead v. Nomee, (2000)

• Decision Date: 20 April 2000
• Docket Number: CIV. APP. 00-117
• Citation: Goes Ahead v. Nomee (Crow Ct. of App. in And For the Crow Indian Reservation Crow Agency, Montana 2000)
• Parties: SYLVESTER GOES AHEAD, ALEX LAFORGE, JR., ALVIN HOWE, HAROLD HILL, AND GILBERT T. GLENN, PLAINTIFFS/APPELLEES, v. CLARA NOMEE, TRIBAL CHAIRPERSON, DEFENDANT/APPELLANT.
• Court: Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency Montana

SYLVESTER GOES AHEAD, ALEX LAFORGE, JR., ALVIN HOWE, HAROLD HILL, AND GILBERT T. GLENN, PLAINTIFFS/APPELLEES, v. CLARA NOMEE, TRIBALCHAIRPERSON, DEFENDANT/APPELLANT.

CIV. APP. No. 00-117

Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency, Montana

April 20, 2000

MEMORANDUM OPINION

WATT J.

¶1 This memorandum opinion is issued in support of this court's Order Granting Permission to Appeal and Dissolving Temporary Injunction entered April 19, 2000.

¶2DefendantClara Nomee and the Crow Tribe have petitioned this court for permission to appeal a Temporary Injunction and Order issued by the Crow Tribal Court on April 11, 2000(Stewart, J.).

¶3 The Order, among other things: (a) declares that Ms. Nomee is immediately removed from the office of Tribal chairperson pursuant to Section 8-5-557 of the Crow Tribal Code, (b) enjoins her from entering the Tribal offices, signing any documents on behalf of the Tribe, and using any Tribal property, (c) enjoins her from running as a candidate for any Tribal office in the Tribal election on May 10[sic], 2000 and (d) enjoins third parties from withdrawing any money from Tribal accounts or removing or destroying any Tribal Records on Ms. Nomee's behalf.

¶4 The Order also scheduled a hearing on the plaintiffs' motion for April 21, 2000.Subsequently, the Tribal Court rescheduled the hearing to April 20, 2000.Because of the extraordinary nature of the proceedings pending in the Tribal Court, it is in the interests of justice for a single judge of this court to grant the Petitions for Permission to Appeal and to rule on the merits of the appeal without further briefing or argument.

A.Appellate Jurisdiction

¶5 Although the Crow Court of Appeals jurisdiction is normally limited to reviewing final orders and judgments of the Tribal Court, Rule 4(a) of the Crow Rules of Appellate Procedure allows an interlocutory appeal from a temporary restraining order or preliminary injunction by filing a petition for permission to appeal within five days after the entry of the order.

¶6This court construes the Order as a "temporary restraining order" within the meaning of Crow R. App. P. 4(a) and Rule 22 (b)(1) of the Crow Rules of Civil Procedure, because it was issued ex parte and without notice to the defendant.The Order was apparently entered on Tuesday, April 11, 2000, and the petitions for permission to appeal were filed on the following Monday, April 17, 2000.Because the fifth calendar day of the time for filing the petitions fell on a weekend, there can be no question that the Petitions were timely filed.The petitions being sufficient in all other respects, it is within this court's discretion to grant the petitions and assume appellate jurisdiction.

¶7 Considering the importance to Tribe of the matters presented, this court will exercise its discretion by granting the petitions for permission to appeal the Order.

B.Course of Proceedings

¶8 The record reflects that the plaintiffs, acting pro se, filed their Complaint for Declaratory Relief on April 11, 2000.It was signed by all of the named plaintiffs, and supported by the Declaration of Sylvester Goes Ahead signed under penalty of perjury.The plaintiffs also filed a Motion for Temporary/Permanent Injunction supported by a Memorandum, along with Exhibits from the Federal-court criminal proceedings against Ms. Nomee in United States v. Nomee, CR 97-89-BLG-JDS, Verdict (D. Mont., Sept. 16, 1998), affirmed in part and remanded, No. 99-30075(9th Cir., April 5, 2000).

¶9The plaintiffs' action in this case, and the Tribal Court's Order, are founded on Section 8-5-557 of the Crow Tribal Code ("official misconduct"), which was adopted as part of the Crow Criminal Code of 1978.Among other things, this Tribal criminal statute provides that a "public servant" who is convicted of performing an act in excess of her lawful authority with the purpose of obtaining advantage for herself or another shall, "upon final judgment of conviction . . . permanently forfeit [her] office."Crow Tribal Code§ 8-5-557(1)(c) and (2).

¶10 In support of their complaint and motion, the plaintiffs relied on Ms. Nomee's conviction on September 16, 1998, for violating a Federal criminal statute, 18 U.S.C. § 1153(knowingly converting to her own use or willfully misapplying Tribal assets, or allowing them to be misapplied).See Exhibit A to Plaintiffs' Motion for Temporary/Permanent Injunction.The plaintiffs argued that the memorandum opinion entered by the U.S. Court of Appeals for the Ninth Circuit on April 5, 2000 constitutes a "final judgment of conviction" within the meaning of Section 8-5-557, thus requiring Ms. Nomee to immediately forfeit her office by operation of law.The Tribal Court apparently adopted the plaintiffs' reasoning in issuing its Order on April 11.

¶11 The Tribal Court's Order was issued ex parte and without notice to the defendant.The Order, along with the Summons and Complaint, were served on Ms. Nomee the next day, April 12, 2000.

¶12 The Petitions for Permission to Appeal were filed on April 17, 2000.The Petitions also specifically requested this court to lift the TRO as soon as possible.The Tribe filed a supporting brief on April 18.That same day, Judge Stewart issued an Order Clarifying Hearing Date scheduling an oral argument/hearing on the temporary injunction and pending motions for April 20, 2000.A copy of the record of proceedings in the Tribal Court was transmitted to this court on an expedited basis on April 19.

C.Discussion

¶13 In its Petition and supporting brief, the Tribe has argued that there are a number of reasons why the Tribal Court's Order must be lifted: (1) the Complaint is defective for purposes of issuing an ex parte restraining order because it is not verified, and Mr. Goes Ahead's sworn declaration does not specifically state that it is intended to verify the allegations in the Complaint; (2) Ms. Nomee has never been charged with or convicted of violating Crow Tribal Code§ 8-5-557, and a Federal criminal conviction does not automatically trigger the provision requiring forfeiture of office; (3)Section 8-5-557 may violate the Tribal Constitution as applied to an officer of the Tribal Council; (4) Ms. Nomee's Federal conviction is not yet final because she has not fully exhausted her remedies in the Federal courts; (5)plaintiffs failed to show irreparable harm as required by Rule 22(b)(1) of the Crow Rules of Civil Procedure;(6)plaintiffs failed to post a surety bond as required by CrowR. Civ. P. 22(d);(7) the Order was not properly certified by the Clerk of the Tribal Court; (8) no judge had been assigned to the case when the Order was issued; and (9) the Tribal Court lacked subject matter jurisdiction because the claims against Ms. Nomee are barred by sovereign immunity, consistent with a 1985 decision of the Crow Tribal Court.

¶14 The Tribe's arguments raise several weighty and complex issues of law that cannot be adequately considered by this court in the time allowed, and are better left for full consideration, in the first instance, by the Tribal Court in further proceedings.Because of the extraordinary relief granted by the Tribal Court without providing the opportunity for Ms. Nomee to appear and defend, this appeal may be decided on more straightforward procedural grounds.

1.Immediate and Irreparable Harm

¶15 Rule 22(b)(1) of the Crow Rules of Civil Procedure provides as follows (emphasis added):

A temporary restraining order may be granted without written or oral notice to the adverse party . . . only if the facts shown by the applicant's verified complaint indicate that immediate and irreparable injury, loss damage or harm will result to the applicant before the adverse party or his legal representative can be heard in opposition.

¶16 The italicized language makes it clear that in order to grant a TRO in any civil proceeding, the Tribal Court's must determine that the potential harm cannot be "undone" by further orders of the court, and that the threat is so immediate that it will occur before the Tribal Court can convene a hearing with both sides present.

¶17 In this case, the only specific allegation of immediate, irreparable harm made in any of the papers filed by the plaintiffs is the following statement in their supporting memorandum:

To allow Nomee to continue in office, whatever her reason might be, would be to place the Crow Tribe, and Tribal members at risk and subject it and them to the possibility of irreparable harm, damage, injury, and danger.Upon information and belief, persons connected with the Crow Tribal Administration have stated that Nomee has recently said to them: "If I am defeated in the next election, during the month after my election, I will destroy all the Tribal Records."Plaintiffs' Briefat 4.

The plaintiffs also argued that the "election of Tribal Chairman is imminent."Id.

¶18The plaintiffs' allegations that somebody said that Ms. Nomee said that she would destroy Tribal records more than a month in the future, if she does not get re-elected, does not describe a potential injury that could occur "before the adverse party . . . can be heard in opposition."Nor does plaintiffs' argument about the upcoming election.Plaintiffs' general allegations about the potential harm to the Tribe and its members of Ms. Nomee continuing in office, while very serious and not to be lightly dismissed, do not explain why this state of affairs suddenly rises to the level of immediate and irreparable harm when Ms. Nomee has continued to serve as Chairman since her conviction by the U.S. District Court almost 7 months ago.

2.Posting of Security

¶19 In addition to showing immediate, irreparable harm, Rule 22(d) of the Crow Rules...