Skokomish Indian Tribe v. Smith, (2009)

• Court: Skokomish Tribal Court of Appeals
• Writing for the Court: Per curiam.
• Decision Date: 12 October 2009
• Docket Number: 08-3668
• Citation: Skokomish Indian Tribe v. Smith (Skokomish Tribal Ct. of App. 2009)
• Parties: SKOKOMISH INDIAN TRIBE, PLAINTIFF AND APPELLEE, v. JOHN SMITH, DEFENDANT AND APPELLANT.

SKOKOMISH INDIAN TRIBE, PLAINTIFF AND APPELLEE, v. JOHN SMITH, DEFENDANT AND APPELLANT.

No. 08-3668

Skokomish Tribal Court of Appeals Skokomish Indian Reservation Skokomish, Washington

October 12, 2009

SYLLABUS BY THE COURT

SYLLABUS^*fn1

Trial court issued order finding non-Indian defendant guilty of speeding on a state highway right-of-way passing through the tribe's reservation. Court of Appeals holds that (1) trial court erred by failing to conduct a formal fact-finding hearing and committing other procedural errors; (2) the trial court judgment was not supported by evidence in the record and (3) the Tribe failed to introduce evidence sufficient to establish tribal jurisdiction over a non-Indian. Trial court order reversed.

Appearances: Lori Nies, Skokomish Tribal Attorney; John Smith, pro se.

Before: Eric Nielsen, Chief Judge; Lisa L. Atkinson, Judge Leona T. Colegrove, Judge.

OPINION

Per curiam.

John Smith appeals the trial court's April 23, 2009 oral ruling finding John Smith guilty of speeding.

We REVERSE the trial court's order.

I. Factual and Procedural History

The Skokomish Tribal Police issued John Smith, a non-Indian resident of Hoodsport, Washington, a Notice of Infraction (NOI) dated October 7, 2008, for "speeding in a posted school zone." The infraction identified the location of the offense as "Hood Canal School Zone" in Skokomish. The police officer's "Law Screen" (report), which the Tribe did not submit as evidence indicates that the alleged infraction occurred on SR 106. SR 106 is a Washington State highway that passes through the Skokomish Reservation on a state-owned right of way. Skokomish v. Mosbarger; Skokomish v. Parsons, 7 NICS App. 90, 91 (Skokomish Tribal Ct.App. 2006).

Smith contested the NOI and appeared for a duly noted hearing before the Skokomish Tribal Court on April 9, 2009. Neither the police officer nor the Tribal Attorney nor anyone else appeared on behalf of the Tribe. Smith indicated that he did not believe the Tribe had jurisdiction over him. The judge, on her own initiative, continued the hearing to April 23, 2009.

The Tribal police officer did not appear at the April 23 hearing, although the Tribe was represented by the Tribal Prosecutor. Rather than conduct an evidentiary hearing, the Judge conducted the proceeding as if it was an appellate oral argument, allowing Smith to present his challenges, allowing the Tribe to respond, and giving both sides time for rebuttal. The Judge did not swear in witnesses or take evidence.

Smith challenged the NOI on the following grounds:

A. The Tribe lacked jurisdiction over him because he is non-Indian.

B. The speed limit sign was not in compliance with standards for speed limit signs.

C. The NOI failed to identify the specific location of the infraction and there was a discrepancy between the NOI and the officer's report concerning the date of the infraction and there were numerous other errors in the report (almost all grammatical).

The Tribal Prosecutor argued that tribal jurisdiction existed under Skokomish v. Mosbarger, supra. There, the Skokomish Tribal Court of Appeals found that a non-Indian motorist speeding in the Hood Canal School Zone was subject to tribal jurisdiction. B

In issuing an oral ruling of guilty from the bench at the conclusion of the hearing, the judge informed Smith that the bases for her ruling were that there was "no testimony contesting that you were speeding, Mr. Smith" and that she "found your [Smith's] argument to be that the Tribe basically didn't have jurisdiction over non-Natives that speeded in that area."

Smith timely appeals the oral ruling. Smith argues that he was not speeding and asserts the following issues on appeal:

A. The judge erred by continuing the hearing rather than dismissing the NOI when the Tribe failed to appear for the contested hearing on April 9.

B. The judge erred by ordering Smith, on April 9, to deliver his written materials to the Tribe prior to the April 23 hearing.

C. The judge erred by not providing Smith instruction on how to request the appearance of the officer that issued the NOI.

D. The NOI should have been dismissed because the Tribe failed to comply with RCW 10.92.020.

E. The Tribe lacked jurisdiction based on U.S. v. Montana and the Skokomish Tribal Court of Appeals' decision in Skokomish Tribe v. Sheldon.

F. The NOI should have been dismissed because the speed limit sign was not in compliance with the standards governing speed limit signs.

G. The NOI should have been dismissed based on the errors and discrepancies between the NOI and the officer's Law Screen report.

Although not explicitly argued, the notice of appeal also raises the following issues:

H. Did the trial judge err by failing to conduct an evidentiary hearing?

I. Was the finding that Smith failed to contest that he was speeding clearly erroneous?

II. Standard of Review

"The Skokomish Tribal Code is silent regarding the standard for 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, 6 NICS APP. 196 (Skokomish Tribal Ct.App. 2004). The question whether the Skokomish Tribe has civil jurisdiction over the conduct of non-Indians within the reservation's border is a question of law which we review de novo. Compare Smith v. Salish Kootenai College, 434 F.3d 1127, 1130 (9th Cir. 2006 (en banc) ('The question of tribal court jurisdiction is a federal question of law, which we review de novo.")

III. Analysis

A. The Trial Court Committed Procedural Error

The trial court erred by failing to conduct a formal evidentiary hearing. The Skokomish Civil Traffic Ordinance states "the burden of proof is upon the Tribe to establish the commission of the infraction by a preponderance of the evidence." STC 8.63.090(c). The ordinance specifies that the court should rule "after consideration of the evidence and argument." STC 8.63.090. We find that these provisions require an evidentiary hearing where the Tribe has an obligation to actually produce evidence. Here, the Tribe presented no evidence whatsoever, with the possible exception that the NOI itself became part of the evidentiary record by the mere act of it having been issued.

The trial court also erred when it failed to provide Smith instructions on how to request the appearance of the officer that issued the citation. While Section 3.01.009 of the Skokomish Tribal Code provided Smith the right to subpoena the officer and describes the process for doing so, the back of the citation issued to Smith expressly states "the court will tell me how to request a witness's appearance." Moreover, "[t]he 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." STC 3.01.012(b).

Smith asked for a contested hearing. He was therefore entitled to be notified on how he could request a witness's appearance as promised on the citation. Smith pointed out a number of errors between the NOI and the officer's report, but without the officer's presence, Smith could not explore those errors because his accuser could not be confronted and subjected to cross examination. Although neither Smith nor the Tribe had an obligation to subpoena the officer, Smith was nonetheless specifically promised on the citation that he would be told how he could procure the officer's presence. It was his decision whether to subpoena the officer. He was not in a position, however, to make that decision because the court failed to tell him how to accomplish that task. Any notion of fairness requires nothing less. If we did not dismiss on other grounds we would have remanded for a new hearing based on this issue.

The Skokomish code provides for discovery to be initiated at the request of one of the parties, not by the Court. STC 3.01.060. We hold that ordering Smith to provide disclosure to the Tribe was not error in itself, however, failing to order formal discovery or issue a reciprocal order directing the Tribe to disclose its evidence, argument or documentation to Smith does not promote fairness to all parties as required by STC 3.01.012(b). We note that the written materials the Judge ordered Smith to disclose were public records, including the Tribe's own motion in the Sheldon case.

We also question whether the judge exercised proper discretion in continuing the hearing sua sponte when the Tribe failed to appear for the original hearing on April 9. If it had been Smith rather than the Tribe that had failed to appear, the code would have required the entry of a default judgment against Smith. STC 8.63.070(e)(2). We find no explicit grant of authority in the code for the judge to continue a contested hearing where the Tribe, appearing...