Sperry v. Mohegan Tribe Election Committee, (2020)

• Decision Date: 10 February 2020
• Docket Number: COE PJD-1-2019
• Citation: Sperry v. Mohegan Tribe Election Committee, 1 M.C.O.E. 29, COE PJD-1-2019 (Mohegan Council of Elders Feb 10, 2020)
• Parties: Mark Sperry, Petitioner v. Mohegan Tribe Election Committee, Mohegan Tribe, and Cathy Croce, Acting Chairperson of the Mohegan Tribe Election Committee Kenneth Davison, Petitioner v. Mohegan Tribe Election Committee, Cathy Croce, Acting Chairperson of the Mohegan Tribe Election Committee, and The Mohegan Tribe
• Court: Mohegan Council of Elders

1 M.C.O.E. 29

Mark Sperry, Petitioner v. Mohegan Tribe ElectionCommittee, Mohegan Tribe, and Cathy Croce, ActingChairperson of the Mohegan Tribe Election Committee Kenneth Davison, Petitioner v. Mohegan Tribe ElectionCommittee, Cathy Croce, ActingChairperson of the Mohegan Tribe Election Committee, and The Mohegan Tribe

COE No. PJD-1-2019

Mohegan Council of Elders

February 10, 2020

Before the Council of Elders of the Mohegan Tribe

ORDER OF CLARIFICATION

On January 31, 2020, the Council of Elders("COE") issued a Decision, Order and Writ of Superintending Control ("Decision") in the instant matter.On February 6 2020, the Mohegan Tribe filed a Motion for Reconsideration and Modification in this matter.On the same date, the Mohegan Tribe Election Committee("MTEC") filed a Motion for Clarification and Modification.We will address the Motions of the parties separately herein.

I Mohegan Tribe Motion for Reconsideration and Modification

As the final arbiters of what our Constitution says and means, we understand that the Mohegan people delegated specific legislative authority to the Tribal Council regarding enactment of the Election Code.That Code must be consistent with the Mohegan Constitution.Our interpretations of the Constitution and Tribal Code are law, and when a case or controversy is presented which requires said interpretation those decisions have the force and effect of law.Consequently, immediate Election Codeamendments are unnecessary as our Decision provides the legal authority for the MTEC to print ballots and conduct the March 15, 2020 special general election.

As to that part of the Decision which describes the need to further refine the Election Code and make such changes by the "next regular election;" the next regular election would be the COE election of 2020.The Tribe's Motion conflates the issue of the Election Code provision regarding primary election ties as discussed in the Decision with the specific remedy ordered in the instant matter.

As to the way in which the Election Code treats ties occurring in a primary election, we stated that the resolution of that issue would be left to the Tribal Council.Election disputes will continue to occur and the chances for expeditious and accurate resolution of disputes will be enhanced if legislative action is taken.

As to the instant matter, where time is of the essence, the COE ordered that if a tie were to occur in the March 15, 2020 special election, lots would be drawn to determine the winner.The use of drawing lots to resolve a tie was sanctioned by the Mohegan people in 2003 via Constitutional Amendment pertaining to the shift to election of Council members by staggered terms, and it is within our judicial discretion to order such a remedy.

In its Motion, the Tribe asserts that the COE cannot direct the Tribal Court to issue advisory opinions.The Decision, which includes a Writ of Superintending Control, does not do so.We anticipate a live case or controversy would arise in the event of the issuance of faulty ballot instructions in the future.When that occurs, the Tribal Council may or may not have amended the Election Code to address the broader issues identified in our Decision.Should Tribal Court review not be available, for whatever reason, any party may petition the COE for judicial review.

The Tribe further asserts the Harris case is moot and therefore, the COE may not address issues regarding that case.However, that case was cited to the COE by various parties in the instant matter as being instructive as to certain issues.In our examination of the opinions issued by the subordinate courts in Harris, it was apparent that the solution imposed by the MTEC regarding candidate withdrawals and at issue in Harris is now codified within the Election Code, so disputes regarding that provision of the Election Code are likely to recur.Therefore, the issue within Harris is not moot.There was no mechanism allowing the COE to speak judicially on the Harris issue unless the Trial Court had certified a question regarding custom and tradition to the COE, or the Appellate Court's decision had either been appealed to the COE or the opportunity arose through another case(such as the instant matter).

Consequently it was appropriate for the Harris issue to be addressed in our Decision.See, e.g., Jacobsen v Lee, N.D. Fla. Nov. 15, 2019(In which Plaintiffs contended that their rights were violated each time an election was held and the challenged statute was enforced."The most recent election before Plaintiffs filed their claims was in 2016, and Plaintiffs filed their claims in 2018.If Florida's ballot order statute stands, it will be...