In re The Judicial Branch, (2010)

• Decision Date: 22 October 2010
• Docket Number: 2008-0283AV
• Citation: In re The Judicial Branch, 3 TOR3d 105, 2008-0283AV (Jud. Ct. of the Tohono O'odham Nation Adult Civil Division Oct 22, 2010)
• Parties: In Re: PETITION OF THE JUDICIAL BRANCH
• Court: Judicial Court of the Tohono O'odham Nation Adult Civil Division

3 TOR3d 105

In Re: PETITION OF THE JUDICIAL BRANCH

No. 2008-0283AV

Judicial Court of the Tohono O'odham Nation Adult Civil Division

October 22, 2010

(appeal dism'd In re: Petition of the Judicial Branch, 3 TOR.3d 50(Jul. 19, 2012))

M June Harris, Counsel for Petitioner Tohono O'odham Judicial Branch

Veronica Geronimo, Counsel for Respondent Tohono O'odham Executive Branch

Tohono O'odham Legislative Attorney's Office by P. Michael Ehlerman for Intervenor Tohono O'odham Legislative Council

Before Judge Robert Alan Hershey.

The Judicial Branch of the Tohono O'odham Nation seeks to enjoin the Executive Branch, through the office of the Chairman of the Tohono O'odham Nation, from implementing portions of Resolution 08-704 pertaining to Title 6,Chapter 1, Courts and Procedures (hereafter the "Courts and Procedures Law") by amended petition for Declaratory Judgment and Emergency Preliminary Injunction and Permanent Injunction.The Emergency Preliminary Injunction was granted through an Order, filed January 6, 2009, and modified January 28, 2009.The Legislative Council of the Tohono O'odham Nation filed a motion to intervene in the litigation on January 21, 2009.

This dispute is between co-equal, independent branches of the Tohono O'odham Nation.The ability of one branch of the Tohono O'odham government to sue another is a matter of first impression.Although the Judicial Branch acts as petitioner here, it is also under a constitutional duty to adjudicate the litigation under Article VIII, Section 10 of the Tohono O'odham Constitution.

This Court begins by determining whether the Legislative Council may properly intervene.In doing so, it will rule on Petitioner's Motion for Summary Judgment, Consolidated Motion for Judgment on the Pleadings, and Request to File Interlocutory Appeal.This Court will then determine whether it has jurisdiction to address the ultimate issue, the constitutionality of the contested portions of the Courts and Procedures Law.Parties are referred to the Court's Order, dated March 11, 2010, as the law of the case.

Choice of Law

3 TOR3d 106

The parties have interpreted Order 03-09, for purposes of this litigation, as adopting Tohono O'odham laws, rules customs and traditions, the Arizona Rules of Civil Procedure and pertinent Arizona law.The Court agrees, noting that the use of foreign law will be considered if it aligns with Tohono O'odham custom, which fosters a spirit of inclusiveness-a spirit this Court emphasized in its March 11 2010 Order.

Jurisdiction

As discussed below, the Court has jurisdiction to hear Petitioner's Amended Petition.

Discussion

I.Intervention

The Court grants the Legislative Council permissive intervention, but has not been adequately briefed to rule on whether the Legislative Council possesses a statutory right to intervene.The question of the constitutionality of 1 T.O.C. Chap. 2, Sovereign Immunity; Legislative Immunity (hereinafter the "Sovereign Immunity Law"), purporting to give the Legislative Council a right to intervene in cases that challenge the validity of the Nation's laws, will be reserved for a more appropriate time in which the issue is a central element to the cause of action.Sovereign immunity is not implicated here by the Judicial Branch's petition for injunction or by the Legislative Council's petition to intervene, and waiver of sovereign immunity is therefore not necessary in establishing the Court's subject matter jurisdiction.

A.The Court grants the Legislative Council general permissive intervention.

A party may intervene in pending litigation either as a matter of right or permissively.Ariz.R.Civ.Pro. Rule 24.However, the intervening party bears the burden of showing its entitlement to intervention.Morris v. Southwest Sav. & Loan Ass'n, 449 P.2d 301, 304(Ariz.Ct.App.1969).

Intervention is a matter of right when mandated by statute or when the intervening party claims an interest in the subject of the action and disposing of the action may impair or impede the party's ability to protect its interests-unless the party's interests are adequately represented by existing parties.Ariz.R.Civ.Pro. Rule 24(a).Permissive intervention is proper when a statute confers a conditional right to intervene or when the intervening party's claim or defense shares a common question of law or fact with the main action.Ariz.R.Civ.Pro. Rule 24(b).

i. The Court will not rule on whether the Legislative Council has a statutory right to intervene due to the question such ruling raises about the constitutionality of the Sovereign Immunity Law.

3 TOR3d 107

This Court originally granted the Legislative Council limited permissive intervention in its March 11, 2010 Order.In Re: Petition of the Judicial Branch, 3 TOR.3d 81(Trial Ct., Mar. 11, 2010), appeal dism'd, 3 TOR3d 49 (Ct.App., Jul. 19, 2011).However, the Legislative Council now argues that, due to the recently enacted Sovereign Immunity Law, it possesses a statutory right to intervene in the present case.

The Sovereign Immunity Law purports to give the Legislative Council a right to intervene in "an action to determine the validity of a Nation's law or a Legislative Council decision or action when authorized by a majority vote of the Council."1 T.O.C. § 2102(D)(2).As proscribed by the Sovereign Immunity Law, the Legislative Council cast a majority vote to exercise its statutory right to intervene in the present case.Legislative OrderNo. 09019, available at http://www.tolc-nsn.org/docs/actions09/09019.pdf.

However, the Judicial Branch asserts that the Sovereign Immunity Law is unconstitutional, encroaching on the Executive Branch's constitutional authority to enforce the Nation's laws.Petitioner's Reply to Respondent Legislative Council's Response to Petitioner's Brief on Additional Questions, 2 (June 4, 2010).The Sovereign Immunity Law sets forth the Legislative Council's ability to defend the Nation's laws within the judiciary while Article VII, Section 2(C) of the Tohono O'odham Constitution grants the Executive Branch's Chairman the power to oversee the implementation of the Nation's laws.In raising this concern, the Judicial Branch asks the Court to address this case's ultimate question -to what extend does each governmental branch within the Tohono O'odham government possess independent powers that it alone may exercise.

Tohono O'odham common law and custom encourage cooperation and a sharing of power between the government's three independent branches.Although the current Tohono O'odham Constitution contains Article IV, which states that the government will be composed of three independent branches, it should be interpreted in conjunction with Tohono O'odham tradition, including the "fundamental governing principal of inclusion."In Re: Petition of the Judicial Branch, at 92.In Francisco v. Toro, 1 TOR.3d 68(Trial Ct., Jan. 12, 1989), appeal dism'd, 3 TOR3d 17 (Ct.App., Sep. 4, 2008), the Court began its "separation of powers" analysis with the notion that "a viable government must depend on the cooperation and interrelationship between all three branches of government."Id., at 71.The Court set forth a three-prong test for determining whether one branch has usurped another's power.Id., at 71-72.A court should consider 1) the nature of the power being exercised, 2) the objective sought by the allegedly

3 TOR3d 108

offensive action, and 3) the practical effect of blending powers.Id.This test asks whether the power allegedly usurped should be shared between branches, and if so, whether the action was taken in the spirit of cooperation.It also inquires into what the practical effects of sharing will be.

It seems that authority to ensure the Tohono O'odham Nation's laws are implemented may be exercised by both the Legislative and Executive Branches.The Tohono O'odham Constitution states that the Executive Branch possesses the constitutional power to "oversee the implementation of all laws, ordinances, resolutions and rules made by the Tohono O'odham Council."TOHONO O'ODHAM CONST. art. VII § (2)(C).However, the Legislative Council also possesses constitutional power "to enact laws, ordinances and resolutions necessary or incidental to the exercise of its legislative powers,"Id. at art. VI § (1)(L), and to "create laws, ordinances, or resolutions to provide for the maintenance of law and order and the administration of justice."Id. at art. VI § (1)(C)(6).Pursuant to this constitutional authority, the Legislative Council passed a resolution giving authority to the Chairman and Vice Chairman of the Council to "follow up on the implementation of legislation."ResolutionNo. 223-86(April 15, 1986).

One may infer that the Legislative Council's objective in enacting the Sovereign Immunity Law, giving itself a right to intervene in cases that determine the validity of the Nation's laws and decisions made by the Legislative Council, was to further the Tohono O'odham principal of inclusiveness and to provide continued support in defending the Nation's laws.The Sovereign Immunity Law's practical effect would be that, in cases dealing with any enactment by the legislative council, both the Executive and Legislative Branches would be eligible to act as litigants.Here, the Executive Branch vetoed adoption of the Courts and Procedures Law, while the Attorney General has declared a conflict of interest.Respondent's Response Brief, 2 (Jan. 21, 2009); Statement of the Office of Attorney General, 1 (Jan. 20, 2009).In this situation, the Sovereign Immunity Law would provide for an interested party, the Legislative Branch, to be heard respecting the validity of the law in question.

However the Court has not been adequately briefed about whether the...