Bauer v. Mohegan Council of Elders

8 Am. Tribal Law 108, 1 M.T.C.R. 101
Mohegan Trial Court·Decided May 8, 2009·No. No. CV-08-0138·Published

Opinion

MEMORANDUM OF DECISION ON MOTION FOR ORDER SEALING COURT FILE

JANE W. FREEMAN, Judge.

The Plaintiff filed this action on December 15, 2008 claiming that certain provisions in the Tribal Membership Ordinance, MTC S 31-21, et seq.1, are unconstitutional [111]*111and that “Good Standing” proceedings of the Council of Elders (“COE”), on a complaint filed against him, violate the Mohegan Constitution (“Constitution”) and the Mohegan Court System Ordinance, MTC § 1-1, et $eq. On January 21, 2009, the COE and the Mohegan Tribe of Indians of Connecticut (“Tribe”) filed a “Motion For Order Sealing Court File Pending Hearing” (“Motion to Seal”) requesting that the entire Court file be sealed pending a hearing. The Motion to Seal was presented to the Court ex parte and the relief requested was granted by the Court, Guernsey, C.J.,2 pending a hearing to be held on January 23, 2009.

Immediately before the commencement of the hearing on January 23, 2009, the Defendants filed a “Motion For Closure of Courtroom” (Pleading # 120). In order to provide the Plaintiff and the press with the opportunity to address this motion, the Court continued the hearing until January 30, 2009. At the commencement of the hearing on January 30, 2009, the Court set guidelines for the conduct of the hearing. The Defendants informed the Court that these guidelines had addressed their concerns regarding closure of the courtroom and withdrew their motion. The Court then conducted an evidentiary hearing on the Motion To Seal. At the conclusion of the hearing, the Court modified the “Order For Temporary Sealing” by unsealing the entire file except for the portion of the civil complaint (Pleading # 100) consisting of pages 7-22 (“Complaint Attachment”) and the portion of Pleading # 115 consisting of Exhibit B to the affidavit of Jeanette Wit-kowski (“Exhibit B”). The Court also ordered that the Complaint Attachment and Exhibit B remain under seal until further order of the Court.

The Complaint Attachment includes, inter alia, a copy of the Request For “Good Standing” Determination filed with the COE, concerning the Plaintiff (“Good Standing Complaint”). Attached to the “Good Standing” Complaint, are several articles the Plaintiff posted to his website.3 Exhibit B is a letter from the Plaintiff to the COE confirming the date of the hearing on the “Good Standing” Complaint and his intent to provide a written response to the “Good Standing” Complaint. The issue presented then, is whether the Complaint Attachment and Exhibit B should remain under seal.

I. THE CONFIDENTIALITY PROVISION IN THE TRIBAL MEMBERSHIP ORDINANCE DOES NOT APPLY TO THE RECORDS OF THE MOHEGAN TRIBAL COURT

The Defendants claim that the Complaint Attachment and Exhibit B are [112]*112required to be sealed under the Tribal Membership Ordinance, MTC § 31-21(e), because they are memoranda or communications regarding the Plaintiffs membership status and constitute confidential member enrollment information. In relevant part, the ordinance provides as follows:

Confidentiality .... Applicants and tribal members shall have access by appointment to their own enrollment and membership records, and to all materials pertaining to their own light to membership.... No application, or the substance of the information contained therein or accompanied therewith, or any memoranda or communications regarding the eligibility for enrollment of any person or the membership status of any person, shall be made available to any person, except at the direction of the Council of Elders.

MTC § 31-21(e) (emphasis added).

There can be no question that records on file in the office of the COE concerning the membership status of any person are confidential under MTC § 31-21(e). However, MTC § 31-21(e) must be read together with the Mohegan Court System Ordinance, MTC § 1-1, et seq., and specifically with MTC § 1-53, in order to determine whether these same records, when made an exhibit to a complaint filed in the Tribal Court, are still confidential under the provisions of MTC § 31-21(e). MTC § 1-53 provides, in relevant part, as follows:

Each division of the Mohegan Tribal Court shall keep a record of all proceedings .... A record of all proceedings shall be kept by the appropriate division and shall be available for public inspection unless prohibited, by order of the Court, provisions of this Article or by applicable laws.

MTC § 1-53 (emphasis added). Thus there is a mandate in MTC § 1-53, that records of the Tribal Court be available for public inspection, with certain specified exceptions. The Defendants argue that the Complaint Attachment and Exhibit B fall within an exception and that their inspection is “prohibited ... by applicable laws,” i.e. MTC § 31—21(e), because they concern the membership status of any person. Therefore, the Court must construe this exception to the public inspection mandate in MTC § 1-53, together with the confidentiality provision in MTC § 31-21(e), in order to determine whether inspection of the Complaint Attachment and Exhibit B are prohibited by MTC § 31—21(e).

Several rules of statutory construction are pertinent to the Court’s analysis. “The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ....” Tawanna Quidgeon v. Joseph Quidgeon, Jr., 1 M.T.C.R 86, 87 (2009) (citing Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650, 931 A.2d 142 (2007)). In any case of statutory construction, the analysis begins with the language of the statute and if the statutory language provides a clear answer, it ends there. Id. (citing Harris Trust and Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 254, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000)). “When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same matter. ...” Id. “In determining the effect of a subsequent statutory amendment on earlier legislation we are guided by well defined principles of statutory interpretation. [113]*113We recognize the usual presumption that, in enacting a statute, the legislature intended a change in existing law.” State v. Magnano, 204 Conn. 259, 277, 528 A.2d 760 (1987) (citations omitted). “Where more than one statute addresses a subject, it is presumed that the legislature intended them to be read together to create a harmonious body of law.” Tawanna Quidgeon v. Joseph Quidgeon, Jr., 1 M.T.C.R. 86 (citing Mayor v. Mayor, 17 Conn.App. 627, 633, 554 A.2d 1109 (1989)).

Free access — add to your briefcase to read the full text and ask questions with AI

Bauer v. Mohegan Council of Elders, 8 Am. Tribal Law 108, 1 M.T.C.R. 101 (Mo. 2009).

8 Am. Tribal Law 108 (Bauer v. Mohegan Council of Elders) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Nixon v. Warner Communications, Inc.
435 U.S. 589 (Supreme Court, 1978)
Santa Clara Pueblo v. Martinez
436 U.S. 49 (Supreme Court, 1978)
United States v. Progressive, Inc.
467 F. Supp. 990 (W.D. Wisconsin, 1979)
United States v. Gerena
703 F. Supp. 211 (D. Connecticut, 1989)
United States v. Progressive, Inc.
486 F. Supp. 5 (W.D. Wisconsin, 1979)
Southern New England Telephone Co. v. Cashman
931 A.2d 142 (Supreme Court of Connecticut, 2007)
Boyne v. Town of Glastonbury
955 A.2d 645 (Connecticut Appellate Court, 2008)
Tinman v. Blue Cross & Blue Shield of Michigan
176 F. Supp. 2d 743 (E.D. Michigan, 2001)
United States v. Amodeo
44 F.3d 141 (Second Circuit, 1995)
Yerdon v. Henry
91 F.3d 370 (Second Circuit, 1996)
State v. Magnano
528 A.2d 760 (Supreme Court of Connecticut, 1987)
Mayor v. Mayor
554 A.2d 1109 (Connecticut Appellate Court, 1989)
Vargas v. Doe
900 A.2d 525 (Connecticut Appellate Court, 2006)
Publicker Industries, Inc. v. Cohen
733 F.2d 1059 (Third Circuit, 1984)
Damiano v. Sony Music Entertainment, Inc.
168 F.R.D. 485 (D. New Jersey, 1996)
Quidgeon v. Quidgeon
8 Am. Tribal Law 95 (Mohegan Trial Court, 2009)