Inquiry Concerning Complaint of Judicial Standards Comm'n v. Afraid

• Decision Date: 30 December 2010
• Docket Number: No. PR 09-0639.,PR 09-0639.
• Citation: 358 Mont. 532,245 P.3d 1116,2010 MT 285
• Parties: INQUIRY CONCERNING COMPLAINT OF JUDICIAL STANDARDS COMMISSION, Complainant, v. Leroy NOT AFRAID, Respondent.
• Court: Montana Supreme Court

245 P.3d 1116

358 Mont. 532

2010 MT 285

INQUIRY CONCERNING COMPLAINT OF JUDICIAL STANDARDS COMMISSION, Complainant,

v.Leroy NOT AFRAID, Respondent.

No. PR 09-0639.

Supreme Court of Montana.

Dec. 30, 2010.

[358 Mont. 533, 245 P.3d 1118]

OPINION AND ORDER

¶ 1 Following its inquiry into the complaint filed against Leroy Not Afraid (Not Afraid) by appointed prosecuting attorney, Geoffrey R. Keller (Keller), the Judicial Standards Commission (JSC) filed its recommendation with this Court. The JSC recommends that Not Afraid be sanctioned for violating the Montana Constitution and the Code of Judicial Conduct by a public reprimand and the imposition of proceeding costs. Not Afraid objects to the recommendation and requests dismissal of the complaint. Keller has responded to Not Afraid's objections. We conclude that the complaint must be dismissed. We state the dispositive issue as follows:

¶ 2 Is the office of Crow Tribal Chairman an "elective public office" for purposes of Article VII, Section 10?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Not Afraid was duly elected Justice of the Peace for Big Horn County in November 2006, and he began his term of office on January 1, 2007. Pursuant to Article III, Section 3 of the Montana Constitution and § 3-10-202, MCA, he took the constitutional oath of office before assuming his duties.

¶ 4 Not Afraid is an enrolled member of the Crow Tribe of Indians. In March 2009, Not Afraid filed as a candidate for the office of Crow Tribal Chairman while maintaining his office as Justice of the Peace. The Crow Constitution and Law and Order Code define the Chairperson as an executive position. Crow Const. art. IV, § 1; Crow Law & Order Code. tit. 21, art. III, § 1(1) (2005). The JSC sent two letters to Not Afraid and his attorney, advising Not Afraid of the provision of Article VII, Section 10 of the Montana Constitution requiring a holder of a judicial position to forfeit that position upon filing for a non-judicial elective public office. Not Afraid did not forfeit his position and campaigned for the tribal office. Not Afraid advanced after the primary tribal election held on March 28, 2009, but he was not elected Tribal Chairman in the general tribal election held on April18, 2009. In December2009, Keller filed a complaint ¹ against Not Afraid alleging violations of Article VII, Section 10 as well as Rules 1.1, 1.2, and 3.1 of the 2008 Montana Code of Judicial Conduct.²

¶ 5 Not Afraid sought dismissal of the complaint on the grounds that the JSC lacked jurisdiction; violated his Crow constitutional rights, federal supremacy, Montana law, Crow tribal sovereignty and tribal law; and improperly interpreted "elective public office." Not Afraid argued that the alleged violations of the Code of Judicial Conduct were illusory because of the erroneous application of Article VII, Section 10.

¶ 6 In March 2010, the JSC denied Not Afraid's motion to dismiss, concluding that Article VII, Section 10 and the Code of Judicial Conduct applies to Not Afraid for his actions as Justice of the Peace, and that the Crow Tribal Chairman position is included within the common definition of an "elective public office." The JSC further determined that the Code of Judicial Conduct would serve as an independent basis for sanctions against Not Afraid which would not be mooted by the completion of the tribal election.

¶ 7 A hearing on the complaint was held on June 25, 2010. Not Afraid testified about state offices he had resigned upon his election as Justice of the Peace, and about the counsel he had sought and received regarding the necessity of resigning his Crow legislative seat. He testified that, based upon this advice, it was his belief that he was not required to resign his Crow legislative seat, and that he was also freeto pursue election as Crow Chairman while maintaining his state judicial position. After hearing, the JSC concluded that Not Afraid violated Article VII, Section 10, as well as Rules 1.1, 1.2, and 3.1 of the Code of Judicial Conduct. The JSC viewed the advice against resignation which Not Afraid had received as a mitigating factor and recommended to this Court that Not Afraid be publicly reprimanded instead of forfeiting his office, and that he pay the costs of the proceeding.³ The JSC indicated that a subsequent violation of this nature by Not Afraid would result in its pursuit of Not Afraid's immediate suspension from his judicial position. Not Afraid filed objections to the JSC's recommendations, renewing his argument that the JSC had no legal authority and had erred by denying his motion to dismiss. This Court requested and received a response from Keller to Not Afraid's objections.

STANDARD OF REVIEW

¶ 8 We review the Judicial Standard Commission's proceedings de novo. Harris v. Smartt, 2002 MT 239, ¶ 36, 311 Mont. 507, 57 P.3d 58, vacated on other grounds, 2003 MT 135, 316 Mont. 130, 68 P.3d 889. The JSC's recommendations are not binding on this Court. Harris, ¶ 36.

DISCUSSION

¶ 9 As a preliminary matter, we address Not Afraid's broadly-stated arguments challenging jurisdiction. Not Afraid argues that the "imposition of Article VII, Section 10 of the Montana Constitution upon [him] constituted a violation of and interference with the Crow Constitution [ ] and Crow sovereignty...." First, though not specifically raised by Not Afraid, it is clear that Not Afraid cannot raise the defense of sovereign immunity. Indian tribes, and tribal officials acting in their official tribal capacity, have sovereign immunity from suit in state courts unless Congress authorized the suit or the tribe has unequivocally waived its immunity. Thompson v. Crow Tribe of Indians, 1998 MT 161, ¶¶ 15, 17, 23, 289 Mont. 358, 962 P.2d 577. However, individual tribal members can be sued for personally violating state law, regardless of whether the tribe itself is determined to be immune from suit.Puyallup Tribe, Inc. v. Dept. of Game of Wash., 433 U.S. 165, 171-72, 97 S.Ct. 2616, 2621, 53 L.Ed.2d 667 (1977). Not Afraid has been subjected to this proceeding for his individual acts, so he cannot personally raise the defense of sovereign immunity.

¶ 10 Subject matter jurisdiction pertains to the fundamental power of a court to hear and decide a case. Pinnow v. Mont. St. Fund, 2007 MT 332, ¶ 16, 340 Mont. 217, 172 P.3d 1273. The issue of subject matter jurisdiction can be raised at any time. Wippert v. Blackfeet Tribe of the Blackfeet Indian Reservation, 260 Mont. 93, 102, 859 P.2d 420, 425 (1993). While state and tribal jurisdiction is complex, certain principles have consistently been recognized. "Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959). Additionally, "[t]he cases in this Court have consistently guarded the authority of Indian governments over their reservations." Williams, 358 U.S. at 223, 79 S.Ct. at 272. The jurisdictional tests employed by this Court have recognized these foundational principles. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980) (quoting Williams for the second prong of its test); First v. State Dept. of Soc. & Rehab. Servs., 247 Mont. 465, 471, 808 P.2d 467, 470 (1991) (adopting the White Mountain Apache test in Montana); State ex rel. Iron Bear v. Dist. Ct., 162 Mont. 335, 339-40, 346, 512 P.2d 1292, 1295-96, 1299 (1973) (adopting a three-part test based, in part, on Williams ); see also In re Marriage of Skillen, 1998 MT 43, ¶¶ 42-47, 287 Mont. 399, 956 P.2d 1 (differentiating between and clarifying the White Mountain Apache and Iron Bear tests). This Court has recognized tribal sovereignty and the right of tribal self-government. See Skillen, ¶ 41 (citing In re Custody of Zier, 230 Mont. 464, 750 P.2d 1083 (1988); In re Marriage of Limpy, 195 Mont. 314, 636 P.2d 266 (1981); State ex rel. Stewart v. Dist. Ct., 187 Mont. 209, 609 P.2d 290 (1980)).

¶ 11 We have also acknowledged that, generally, " '[t]he exercise of state jurisdiction over activities occurring entirely on Indian lands is an infringement on inherent tribal authority and is contrary to principles of self-government and tribal sovereignty.' " Matter of Hanna, 2010 MT 38, ¶ 17, 355 Mont. 236, 227 P.3d 596 (quoting Flat Ctr. Farms, Inc. v. State Dept. of Revenue, 2002 MT 140, ¶ 13, 310 Mont. 206, 49 P.3d 578). However, when substantial activities occur off the reservation, the state may generally assume jurisdiction. Matter of Bertelson, 189 Mont. 524, 531, 617 P.2d 121, 125 (1980) (citations omitted); see also Little Horn State Bank v. Stops, 170 Mont. 510, 517, 555 P.2d 211, 214 (1976); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973) (citations omitted). Montana courts have jurisdiction over a tribal member whose actions involve " 'significant contacts with the state outside reservation boundaries.' " Balyeat Law, PC v. Pettit, 1998 MT 252, ¶ 38, 291 Mont. 196, 967 P.2d 398 (quoting Crawford v. Roy, 176 Mont. 227, 230, 577 P.2d 392, 393 (1978)).

¶ 12 We disagree with Not Afraid's contention that the JSC is attempting to regulate "Indian[s] running for tribal office." The state has made no effort to regulate candidates for tribal office. The Crow Tribe mayqualify its own candidates and conduct its own elections. Here, the state is seeking to enforce the qualifications for a state office which was sought and obtained by an individual Crow tribal member. Not Afraid's actions, in filing and running for state office, involved much more than "significant contacts with the state." He became a state official and took a constitutional oath of office to support, protect, and defend the Montana Constitution. Therefore, the state is not impermissibly interfering with tribal sovereignty or self-governance, and has...