Bartha v. Mohegan Tribe Election Committee

8 Am. Tribal Law 329, 1 M.T.C.R. 123
CourtMohegan Trial Court
DecidedOctober 20, 2009
DocketNo. CV-09-0102
StatusPublished

This text of 8 Am. Tribal Law 329 (Bartha v. Mohegan Tribe Election Committee) is published on Counsel Stack Legal Research, covering Mohegan Trial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bartha v. Mohegan Tribe Election Committee, 8 Am. Tribal Law 329, 1 M.T.C.R. 123 (Mo. 2009).

Opinion

MEMORANDUM OF DECISION ON MOTION TO STRIKE

JANE W. FREEMAN, Judge.

The Mohegan Tribe Election Committee and The Mohegan Tribe of Indians of Connecticut (“defendants”) have moved to strike the complaint pursuant to the Mohegan Rules of Civil Procedure (“MRCP”) § 22, for failure to state a claim upon which relief can be granted. The plaintiff alleges in his complaint that Section 1-212(a)(2) of the Election Code 1 is unconstitutional because it conflicts with his rights under Article XII, § 1 of the Mohegan Constitution. The defendants contend that Section l-212(a)(2) of the Election Code mirrors and implements the provisions in Article XII, §§ 1, 2 and 3 of the Mohegan Constitution so that the complaint fails to state a claim on which relief can be granted. Based on this claim, the defendants ask the Court to strike the entire complaint because it fails to state a claim upon which relief may be granted.

I. THE MOTION TO STRIKE PURSUANT TO MRCP § 22

MCRP § 22.a. provides in relevant part that, “A motion to strike may be filed by any party to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross-claim or any count thereof for failure to state a claim upon which relief can be granted; ...” The purpose of a motion to strike “is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted.” (Internal quotation marks omitted). Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, the trial court must “examine the [complaint], construed in favor of the [plaintiff], to determine whether [the pleading party has] stated a legally sufficient cause of action.” (Internal quotation marks omitted). Dodd. v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). On a motion to strike the court is limited to the facts alleged in the complaint. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). However, the court may consider exhibits attached to the complaint, because a complaint includes all exhibits attached thereto. Tracy v. New Milford, 101 Conn. [332]*332App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). “... [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” Pamela B. v. Merit, 244 Conn. 296, 308, 709 A.2d 1089 (1998). On the other hand, where it is apparent on the face of a complaint that no legal relief may be granted, a motion to strike is the proper procedure to attack the legal sufficiency of the complaint. Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).

II. BACKGROUND

The plaintiff alleges that the Tribal Council adopted a Freedom of Information ordinance which was later rescinded on March 18, 2009 (complaint attachment). In ruling on a motion to strike, the Court must take the facts pleaded in the complaint as true. St. Denis v. de Toledo, 90 Conn.App. 690, 691, 879 A.2d 503, cert. denied, 276 Conn. 907, 884 A.2d 1028 (2005). He further alleges that within seven (7) days of the Tribal Council’s rescission on March 18, 2009, he submitted Petition 2009-2 (“Petition”) to enact an ordinance pertaining to Freedom of Information (complaint attachment). At oral argument, the plaintiff, who proceeded pro se, stated that he was proposing a new ordinance in the Petition (emphasis added). The Court will treat the plaintiffs statement as a judicial admission. O & G Industries, Inc. v. All Phase Enterprises, Inc. 112 Conn.App. 511, 524, 963 A.2d 676 (2009) (holding that the determination of whether a party’s statement is a judicial admission or an evidentiary admission is a question of fact for the trial court). “Judicial admissions are voluntary and knowing concessions of fact by a party or the party’s attorney during the course of the judicial proceeding ...” McFarland v. Dept. of Development Services, 115 Conn.App. 306, 317, 971 A.2d 853, cert. denied, 293 Conn. 919, 979 A.2d 490 (2009). Judicial admissions can be oral concessions by a party or attorney. King v. Spencer, 115 Conn. 201, 204, 161 A. 103 (1932). At the hearing on the motion to strike, defendants’ counsel argued that plaintiffs Petition had nothing to do with the Tribal Council’s rejection or rescission of the Freedom of Information ordinance on March 18, 2009; that plaintiff was not asking the Tribal Council to rescind its rescission action; and that the plaintiffs Petition was an initiative for a new ordinance (emphasis added). In response to the Court’s inquiry whether the plaintiff had proposed a new ordinance in the Petition, the plaintiff unequivocally responded in the affirmative. The Court therefore holds that the plaintiffs admission was voluntary, knowing and binding upon the plaintiff as a judicial admission.

The plaintiff submitted his Petition to the Election Committee on March 25, 2009 (complaint, paragraph 1), which was within seven (7) days of the Tribal Council’s rescission of the Tribe’s Freedom of Information ordinance on March 18, 2009. The Election Committee thereafter rejected the Petition (complaint attachment). In its reasons, the Election Committee quoted the texts of Article XII, §§ 1 and 2 of the Mohegan Constitution and noted that the actual intent and interpretation of Section 1 was unclear to the Committee because of the text of Section 2. The Election Committee also quoted the text of Section 1-212(a)(2) of the Election Code and determined that “[w]e are bound by the provisions of the Election Code as stated above under Section 1-212, which matches the intent and purposes under Section 2 of Article XII of the Mohegan Tribe Constitution.” (complaint attachment).

III. DISCUSSION

The sole legal claim in the plaintiffs complaint is that the provision in [333]*333Section l-212(a)(2) of the Election Code that “any petition to propose ... ordinances and resolutions ... requires the verified signatures of at least forty percent (40%) of the registered votes of The Tribe,” is unconstitutional, because it conflicts with Article XII, § 1 of the Mohegan Constitution. The defendants contend (1) that because the plaintiff has proposed a new ordinance (emphasis added), the applicable constitutional provision is in Article XII, § 2 not in Article XII, § 1; and (2) that the plaintiff has erroneously interpreted Article XII, § 1 in isolation, without consideration of the other provisions in Article XII, §§ 2, 3, 4 and 5. Article XII, §§ 1, 2 and 3, provide as follows:

Section 1. [Power to Petition.]

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Related

Wright v. United States
302 U.S. 583 (Supreme Court, 1938)
Harmelin v. Michigan
501 U.S. 957 (Supreme Court, 1991)
Tracy v. New Milford Public Schools
922 A.2d 280 (Connecticut Appellate Court, 2007)
O & G Industries, Inc. v. All Phase Enterprises, Inc.
963 A.2d 676 (Connecticut Appellate Court, 2009)
McFarland v. Department of Developmental Services
971 A.2d 853 (Connecticut Appellate Court, 2009)
Violano v. Fernandez
907 A.2d 1188 (Supreme Court of Connecticut, 2006)
St. Denis v. De Toledo
879 A.2d 503 (Connecticut Appellate Court, 2005)
King v. Spencer
161 A. 103 (Supreme Court of Connecticut, 1932)
Waters v. Autuori
676 A.2d 357 (Supreme Court of Connecticut, 1996)
Dodd v. Middlesex Mutual Assurance Co.
698 A.2d 859 (Supreme Court of Connecticut, 1997)
Pamela B. v. Ment
709 A.2d 1089 (Supreme Court of Connecticut, 1998)
Fort Trumbull Conservancy, LLC v. Alves
815 A.2d 1188 (Supreme Court of Connecticut, 2003)

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Bluebook (online)
8 Am. Tribal Law 329, 1 M.T.C.R. 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartha-v-mohegan-tribe-election-committee-moheganct-2009.