Skokomish Indian Tribe v. Cultee, (2006)

• Court: Skokomish Tribal Court of Appeals
• Writing for the Court: DICKINSON, J.
• Decision Date: 18 December 2006
• Docket Number: SKO-CI-3-06-071
• Citation: Skokomish Indian Tribe v. Cultee (Skokomish Tribal Ct. of App. 2006)
• Parties: SKOKOMISH INDIAN TRIBE, APPELLEE, v. RICHARD L. CULTEE, APPELLANT.

SKOKOMISH INDIAN TRIBE, APPELLEE, v. RICHARD L. CULTEE, APPELLANT.

No. SKO-CI-3-06-071

Skokomish Tribal Court Of Appeals

December 18, 2006

SYLLABUS BY THE COURT

Trial court found Defendant guilty of civil infractions of failure to notify the tribe of his status as a sex offender and failure to register as a sex offender. Court of Appeals holds that (1) documentary evidence of Defendant's sex offender status should not have been admitted because it was not properly authenticated; (2) in court statements concerning Defendant's sex offender status should have been excluded because trial court improperly allowed Defendant's son to appear as both a witness and spokesperson and trial court did not comply with rules regarding appearance of a spokesperson; and (3) no other evidence in the record established that Defendant was a sex offender. Trial court decision reversed and remanded for a new trial.

Desmond D. Kolke, Counsel for Appellant; Richard Kilmer Tribal Prosecutor, Counsel for Skokomish Indian Tribe Appellee.

Before: Theodore Heilman-Schott, Chief Justice; Lisa J Dickinson, Justice; Thomas Goetzl, Justice.

OPINION

DICKINSON, J.

INTRODUCTION

This matter came before the Skokomish Tribal Court of Appeals pursuant to Appellant Richard L. Cultee's Oral Notice of Appeal and the Motion to Dismiss Appeal filed with the Skokomish Tribal Court by the Tribe on May 25, 2006. The Tribe's Motion to Dismiss was denied and this appeal was accepted pursuant to this Court's Order entered on August 8, 2006. The underlying charges and convictions in this case are for Failure to Register (as a sexual offender), a violation of § 9.02B.050 and 070(b) of the Skokomish Tribal Code and Failure to Notify (of Defendant's status as a sex offender), a violation of § 9.02B.040 and 070(a) of the Skokomish Tribal Code.

Pursuant to Skokomish Tribal Code § 3.01.106, a panel of three judges was designated to hear the appeal. After hearing oral argument, Justice Theodore Heilman-Schott recused himself from further participation in this case as he had failed to advise the parties that he had acted as a temporary Prosecuting Attorney for the Skokomish Indian Tribe on one occasion after he had been appointed Chief Justice in this matter. The parties subsequently filed an Agreed Motion to Set New Oral Argument Date in Light of Recusal of Judge Schott. The Agreed Motion requested that either a new panel of three judges by assigned to hear the appeal, or that one justice be added and that a new oral argument be scheduled.

THE AGREED MOTION TO SET NEW ORAL ARGUMENT IS DENIED

The Agreed Motion to Set New Oral Argument was brought pursuant to the STC 3.01.106(a), Rule 106(a) of the Tribe's Rules of Civil Procedure. Rule 106(a) requires that "[f]or each case which is appealed, a panel of three judges shall be designated to hear the appeal."

Rule 106(a) must be read in harmony with STC 3.01.012(b), Civil Rule 12(b), which states that the rules should be liberally construed to, among other things, resolve disputes "efficiently." Here, rule 106 was followed - three judges were "designated" to hear the appeal. The rules do not prohibit a judge from recusing himself after having been so designated, and the rules are silent as to how to proceed when this happens. Rule 106(a) must also be read in harmony with Rule 12(d), which provides "[i]n a situation where the rules of the tribal court do not prescribe a procedure, ... the judge may determine the procedure which will be followed." Thus, it is our opinion that the code allows the remaining two judges to determine the procedure that would best serve the imperative of Rule 12(b) that disputes be resolved efficiently. Since the remaining two members of the panel had already engaged in substantial deliberations and reached a consensus on the outcome, and since appeals are to be decided by a simple majority vote of the panel, adding a new judge at this point would not promote efficiency - it would do nothing more than add expense to a case that has already effectively been decided.

Moreover, STC 3.01.056, Civil Rule 56(c), states "[t]he judge may keep a party from making a motion which could and should have been made early in the case if it appears that the moving party knew or should have known earlier about the basis for the motion and has raised it late because of negligence ...." In this case, the parties were served with Judge Schott's Order of Recusal on October 23, 2006. The remaining members of the panel then delayed their deliberations for approximately two weeks to allow the parties an opportunity to respond to Judge Schott's Order of Recusal. Having received no such response in a timely manner, the remaining members of the panel resumed their deliberations and reached consensus on the issues presented by this appeal. The parties' Agreed Motion to Set New Oral Argument was not filed with the Tribal Court until November 21, 2006 – nearly a full month after the parties were served with the Order of Recusal. Failure to move immediately to request a change in the makeup of the appellate panel is not in the interest of judicial economy and is contrary to the imperative of Rule 12 that disputes be efficiently resolved. Therefore, we hold the Motion was "late" under Rule 56(c).

Finally, while the decisions of other tribal courts are not binding upon the Skokomish Tribal Courts, we note that other tribal courts have held the remaining two members of an appellate panel properly issued the opinion of the appellate court after one member had withdrawn from the panel. See, e.g., Madison v. Tulalip Education Dept., 5 NICS App 29 (Tulalip Tribal Ct.App. 1998); Tulalip Tribal Utilities v. Jones, 5 NICS App. 34 (Tulalip Tribal Ct.App. 1998); Kelsey v. TERO Comm'n, 5 NICS App. 50 (Hoopa Valley Tribal Ct.App. 1998).

For the foregoing reasons, we DENY the Agreed Motion to Set New Oral Argument.

JURISDICTION

The Skokomish Tribal Court has personal and subject matter jurisdiction over Appellant Richard L. Cultee pursuant to STC § 3.01.052(a), which states:

The Skokomish Tribal Court shall have jurisdiction over all causes of action arising within the exterior boundaries of the Skokomish Indian Reservation, over all parties to such actions, and over the personal property of all parties to such actions.

Personal and subject matter jurisdiction over criminal proceedings are also specifically conferred upon the Tribal Court by STC § 9.01.030, which grants criminal jurisdiction on the Reservation over all persons.

STC 3.01.101 establishes the right to appeal, and by implication, the jurisdiction of the Court of Appeals to hear the appeal.

STANDARD OF REVIEW

The procedural questions in this case are reviewed de novo. Any factual issues are reviewed under the "clearly erroneous" standard.

The Skokomish Tribal Code is silent regarding the standard of appellate court review of a trial court decision. In the absence of any specified standard of review, we review issues of fact under the 'clearly erroneous' standard and issues of law de novo.

Johns and McGhee v. Allen, No. SKO CV 06/03-171, at 1, 6 NICS App. 196, 196-197 (Skokomish Tribal Ct.App. Oct. 22, 2004).

ISSUES ON APPEAL

The issues on appeal raised by Appellant concerned:

1. The right to competent counsel and whether any such right was waived or violated;

2. The right to trial by jury and whether any such right was waived or violated;

3. The right to timely arraignment and speedy trial and whether any such rights were waived or violated;

4. Whether evidence relied upon by the trial court was properly authenticated and admitted.

In resolving this appeal, this Court is guided by Skokomish Tribal Code § 3.01.012(b), which provides:

The rules of procedure for the Skokomish Tribal Court shall be liberally interpreted and applied to achieve the following purposes: revealing the truth, treating all parties fairly and without prejudice, protecting individual rights guaranteed by the Indian Civil Rights Act and the Skokomish tribal constitution, resolving disputes efficiently.

Accordingly, this Court may conduct its own inquiry as to whether proper procedures have been followed and individual rights protected.

DISCUSSION

A. Documentary Evidence

An essential element of the offenses of which Appellant was convicted is that he was, in the language of Skokomish Tribal Code § 9.02B.015(b), a person:

Who has pled guilty to, been found guilty of, or who has been found not guilty by reason of insanity, to any attempt, solicitation or conspiracy to commit a crime that requires or would require that person to register as a sex offender under federal law, or under the law of any state, other Indian tribe, territory, commonwealth, foreign country or other jurisdiction.^[1]

Appellant questions whether evidence proving his conviction of an offense requiring registration and notification relied upon by the trial court was properly authenticated and admitted. The Skokomish Tribal Code has specific rules pertaining to evidentiary issues before the trial court.

Skokomish Tribal Code § 3.01.041(a) and (c) state:

(a) The rules of evidence used in state and federal courts shall not apply to hearings in the Skokomish Tribal Court. But where there is more than one kind of evidence about the same subject, the judge should hear the most reliable kind of evidence. In oral testimony, persons who testify from their personal knowledge, such as first-hand observation of or participation in the event described, shall be preferred as witnesses to persons who have second-hand knowledge of the event.

(c) When the relevance or reliability of evidence is challenged and the judge decides whether or not to use the evidence, the judge shall explain the decision and, if...