Sperry v. Mohegan Tribe Election Committee, (2020)

• Decision Date: 31 January 2020
• Docket Number: COE PJD-1-2019
• Citation: Sperry v. Mohegan Tribe Election Committee, 1 M.C.O.E. 14, COE PJD-1-2019 (Mohegan Council of Elders Jan 31, 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. 14

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

January 31, 2020

Before the Council of Elders of the Mohegan Tribe

DECISION, ORDER AND WRIT OF SUPERINTENDING CONTROL

I.Procedural History

On December 18, 2019, PetitionersMark Sperry("Sperry") and Kenneth Davison("Davison") filed separate Petitions for Judicial Review pertaining to the Tribal Council special general election, which occurred on December 8, 2019.The Petitions were filed pursuant to Article X, Sections 1and2(a) of the Mohegan Constitution("Constitution") and the Council of Elders Procedures for Judicial Review.

By a Preliminary Notice dated December 19, 2019, the Council of Elders("COE") took the matters raised by Petitioners under advisement and subsequently determined that the Petitions for Judicial Review would be heard and consolidated because the matters raised in both of the Petitions arose out of the special election of December 8 2019 and involved questions of constitutional import particularly the voting rights of Mohegan Tribal members.

We find that the COE has jurisdiction in this matter pursuant to Article X, Sections 1and2(a)^[1] of the Constitution and that this matter requires expeditious resolution in that it concerns an election and the rights of Mohegan voters.

On December 30, 2019, the Mohegan Tribe Election Committee("MTEC") filed a document with the COE entitled "Respondent's Response to Preliminary Notice," urging the COE to refrain from consideration of the Petitions for Judicial Review until further MTEC proceedings and proceedings in the lower courts had concluded.The COE issued a preliminary Writ of Superintending Control to enjoin further MTEC and Tribal Court proceedings on January 3, 2020.

The MTEC filed the Record in this matter on January 13, 2020.On January 16, 2020, the COE ordered the production of the MTEC Standard Operating Procedures ("SOPs") in place at the time of the December 8, 2020 special election and those SOPs were made a part of the Record on January 17, 2020.Briefs were filed by Petitioners Sperry and Davison, by Respondent MTEC, by Respondent Mohegan Tribe, and by Interested Party Brown.All parties, except for the Mohegan Tribe, filed reply briefs.Petitioner Davison filed a Request to Supplement the Record on January 24, 2020 and the MTEC filed an Objection to Davison's Request on January 27 2020.By virtue of the decision and order herein, Davison's Request to Supplement the Record is granted, and the arguments contained within the MTEC's Objection to Davison's Request are considered herein and incorporated into the Record by reference.

A final procedural matter concerns the entries of appearance by Nathan C. Favreau on behalf of Respondent Mohegan Tribe, and M. Joseph Strafaci on behalf of Petitioner, Kenneth Davison.Those entries of appearance are granted pursuant to our Order herein.

II.Summary of Opinion

We find that the legal voting hours for submitting hand-delivered ballots on December 8, 2020 were from 9:00 a.m. until 12:00 noon.We further find that the MTEC violated provisions of the Constitution and the Mohegan Election Code in restricting the legal voting hours for the submission of hand-delivered ballots on December 8, 2020 in the midst of the balloting process.We additionally find that the MTEC violated the Constitution and Election Ordinance in failing to properly analyze, investigate, and adjudicate the respective complaints filed by Kenneth Davison, Joann Regan, and Mark Sperry.

Consequently, the find that the special election of December 8, 2019 shall be construed as a special primary resulting in Mark Brown and Kenneth Davison as the two top vote recipients.As ordered herein, a special general election shall be held between Mr. Brown and Mr. Davison and the successful candidate shall be sworn in to complete the remainder of the term caused by the resignation of Kevin Brown.

III.Standard of Review

Our review of this matter is de novo, as voting rights pursuant to the Constitution are implicated.Voting is a fundamental right protected by Article XI of the Constitution.Voting, having a voice in one's government, is a form of speech entitled to protection.^[2] Indeed, the official ballot instructions sent to voters as part of the official voter packet state that "your ballot is your voice."Consequently, the way the MTEC dealt with issues raised by Petitioners will be subject to a strict scrutiny analysis.In other words, as the Mohegan Court with the final power of judicial review, we are not bound by the restrictive standard of review set forth in the Election Code and, as this is a matter of first impression before the Court, we shall undertake our own evaluation of the evidence in the Record to determine whether the MTEC violated Mohegan law, including the Constitution, consistent with Davison v. Mohegan Tribe Election Committee, 1 M.T.C.R. 65(2008) and consistent with our Judicial Review Procedures.

The COE Procedures for Judicial Review provide that we"shall give due deference to … matters within the expertise or judgment of the Tribe or any Governmental Entity."The phrase "due deference" indicates that we will accord the appropriate amount of deference to the agency or court below which has rendered a decision before this body for review.The level of deference accorded will depend upon the nature of the decision under review, whether constitutional rights are affected, and the governmental interests at stake.Because the instant matter involves the voting rights of the Tribal membership and because the decision of the MTEC is not the result of a full investigation and hearing, we will accord no deference to the MTEC decisions under review herein.^[3]

IV.Facts

1.A special election was scheduled as a result of the resignation of Kevin Brown from the Tribal Council.A special primary election was held on October 19, 2019.Mark Brown received 164 votes, and Kenneth Davison and Jay Ihloff tied for second place with 86 votes apiece.In accordance with Section 1-208(b) of the Election Ordinance, all three candidates were permitted to run in the special general election, with ballots scheduled to be counted on December 8, 2019.[RecordMTEC000024]

2.The special general election ballot instructions were mailed to all registered voters on November 7 or 8, 2019 as part of the official ballot packet.[RecordMTEC000025andMTEC000084] The mailed ballot instructions provided that ballots returned by mail had to be received by Saturday, December 7, 2019.The ballot instructions further stated that ballots could be returned to the official ballot box within the Tribal Government Building during the pendency of the election, and that ballots could be hand-delivered from 9:00 a.m. to 12:00 noon on December 8, 2019 at the Tribal Government Building.[RecordMTEC000025]

3.After the official ballot packets were mailed to all registered voters (consisting of all Tribal members over the age of 18), the MTEC issued a notice via the Tribal opt-in weekly e-blast (known as MohiksNisoskuqunakat) on November 18, 2019 that it would count the ballots at 9:00 a.m. on December 8, 2019[RecordMTEC000036] and in the MohiksNisoskuqunakat for the week of November 25, 2019 stating that it would count the ballots at 9:00 a.m. on December 8, 2019[RecordMTEC000041].These notices made no reference to the legal voting hours as set forth within the official ballot instructions.

4.Notice was published in the opt-in mailed and internet-accessible Wuskuso on November 20, 2019 stating that hand-delivered election day ballots would be accepted only from 8:30 am to 9:00 a.m. on December 8, 2019.[RecordMTEC000039] Notice was also published in the electronic version of Wuskuso dated November 27, 2019, stating that hand-delivered election day ballots would be accepted only from 8:30 am to 9:00 a.m. on December 8, 2019.[RecordMTEC000042].These notices included a statement that the original ballot instructions contained an error regarding ballots being accepted from 9:00 a.m. to 12:00 noon.

5.The MTEC opened the ballot box and began counting ballots at 9:00 a.m. on December 8, 2019.The tabulation documents indicate that a test of the electronic voting equipment was run at 9:55 a.m. and that a count of ballots that could be scanned by the equipment was run at11:52 a.m. [RecordMTEC000045] An additional seven ballots were hand-counted and then added to the tally.[RecordMTEC000048]Mark Brown was declared the winner with 229 votes, Kenneth Davison received 228 votes, and Jay Ihloff received 165 votes.Results were electronically communicated by the government at 11:31 a.m.^[4]

6.Petitioner Sperry avowed by affidavit and in his brief, filed pro se, that he arrived at the Tribal Government building and attempted to deliver his ballot and his son's ballot around 11:40 a.m.He was unable to locate either the ballot box or the MTEC to deliver the ballots.[Record MTEC000076, MTEC000078, Brief of Petitioner Sperryat 1.]

7.PetitionerKenneth Davison filed a complaint with the MTEC on December 9, 2019[MTEC000054-58].In a decision contained in a letter to Petitioner Davison dated December 12, 2019, the MTEC dismissed Petitioner Davison's complaint, denying his request for a recount and his request that the ballots of Mark Sperry and Marc Sperry be preserved and counted.[MTEC000064-66]Petitioner Davison filed a supplemental complaint with the MTEC on December 13, 2019.[M...