Kiogima v. LTBB Election Board

13 Am. Tribal Law 297
CourtLittle Traverse Bay Bands of Odawa Indians Tribal Appellate Court
DecidedMarch 13, 2015
DocketNo. A-025-1214
StatusPublished

This text of 13 Am. Tribal Law 297 (Kiogima v. LTBB Election Board) is published on Counsel Stack Legal Research, covering Little Traverse Bay Bands of Odawa Indians Tribal Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kiogima v. LTBB Election Board, 13 Am. Tribal Law 297 (odawactapp 2015).

Opinion

DECISION AND ORDER

WENONA SINGEL, Chief Justice.

This case involves the recall election of the Tribal Chair and Vice Chair, Fred Kiogima and Debbie DeLeon. Both were the subjects of a recall election conducted by the Election Board on November 17, 2014. On December 1, 2014, Mr. Kiogima and Ms. DeLeon filed a complaint against the LTBB Election Board in the Tribal Court challenging the recall election result and the manner in which it was conducted. The Tribal Court, following a hearing on a motion to dismiss for lack of subject matter jurisdiction, dismissed the case because it concluded that the complaint was filed outside the Constitution’s limitations period for election challenges.

In this appeal, Mr. Kiogima and Ms. DeLeon request that the Appellate Court reverse the ruling of the Tribal Court. For the reasons presented below, the Appellate Court concludes that the method of computing time for the ten-day Constitutional limitations period must count all calendar days, including intermediate Saturdays, Sundays, and legal holidays. However, if the last day for filing an election challenge falls on a Saturday, Sunday, legal holiday, or other day when the Tribal Court is inaccessible, that day is not counted and instead, a petitioner may submit a complaint until the close of business on the next available day that the Tribal Court is open. Under this method of computing days, the Appellate Court concludes that Mr. Kiogima and Ms. De-Leon’s election challenge is timely.

Background

Mr. Kiogima and Ms. DeLeon (the “Appellants”) were elected as the Tribal Chair and Vice Chair, and they were sworn into office on August 18, 2013. During the summer and fall of 2014, Mr. Kiogima and Ms. DeLeon were subject to a recall effort. After the Election Board certified that the required number of signatures had been obtained on two recall petitions, it refused to provide Mr. Kiogima a copy of the recall petition signature sheets. This denial, coupled with the fact that one of the Election Board members had “liked” a Face-book page called Remove Kiogima/De-Leon, led Mr. Kiogima and Ms. DeLeon to file their first complaint against the Election Board on October 31, 2014, approximately two weeks after the Recall Election ballots had been mailed to the Tribal citizenship, and' just over two weeks before the close of the Recall Election on Novem[299]*299ber 17, 2014. In this first complaint, Mr. Kiogima and Ms. DeLeon sought an order enjoining the completion of the recall election, and at a hearing in November 12, 2014, they also requested public disclosure of the recall petition signature pages. In an Order dated November 18, 2014, the Tribal Court ordered the Election Board to disclose the signature pages by November 14, 2014, but it denied the request to stop the completion of the Recall Election.

Mr. Kiogima and Ms. DeLeon filed their second complaint against the Election Board on December 1, 2014, fourteen days after the Recall Election was concluded on November 17,2014. This complaint, which is the subject of this appeal, asked the Court to hold that the Recall Election was unlawful and invalid. The complaint also requested a court order reinstating the Appellants to their office of Chair and Vice Chair and sanctioning the Election Board by ordering them to pay reasonable costs and attorney fees.

On December 2, 2014, one day after the Appellants filed their second complaint, the Election Board filed a motion to dismiss for lack of subject matter jurisdiction. The Tribal Court received a brief in support of the motion to dismiss and a response from the Appellants, and it conducted a hearing on the motion on December 12, 2014. At the hearing and in the briefs, the Election Board argued through their counsel that Mr. Kiogima and Ms. DeLeon’s complaint constituted an election challenge governed by Article XII, Section F of the LTBB Constitution. The Election Board further argued that under Section F, the complaint was untimely due to the fact that the complaint was filed fourteen days after the Recall Election was concluded, and Section F provides that a registered voter may file an election challenge with the Tribal Court within ten days after the election. In response, Mr. Kiogima and Ms. DeLeon argued through their counsel that the intent of Section F was to provide tribal citizens with a full ten days to file an election challenge. Since the Tribal Court was closed on the tenth day due to a holiday, they argued that they should have until the next day that the Tribal Court was open for business to file their complaint.

On December 14, 2014, the Tribal Court issued an Order granting the Election Board’s motion to dismiss for lack of subject matter. In its opinion, the Tribal Court noted that Mr. Kiogima and Ms. DeLeon filed their complaint on December 1, 2014, fourteen days after the conclusion of the Recall Election. The Tribal Court then applied the Section F of Article XII of the LTBB Constitution, which provides that election challenges may be filed “within ten (10) days after the election.” In its analysis, the Tribal Court characterized Mr. Kiogima and Ms. DeLeon as arguing that the ten day requirement should be interpreted to mean ten business days rather than ten calendar days. The Tribal Court then determined that the Appellate Court precedent of Harrington v. LTBB Election Bd., No. A-019-1011 (LTBB Ct. App.2012) was controlling. In Harrington, the Appellate Court held that Section F’s “ten days” rule refers to “ten consecutive days, without regard for weekends, holidays, or days when tribal administrative offices are open or closed,” In light of the Harrington precedent, the Tribal Court concluded that the election challenge was untimely, depriving the Tribal Court of subject matter jurisdiction over the complaint. The Order concluded by dismissing the complaint.

On December 16, 2014, Mr. Kiogima and Ms. DeLeon filed a notice of appeal with the Appellate Court. The Appellants request that the Appellate Court reverse the ruling of the Tribal Court. The Appellate [300]*300Court held a scheduling conference on December 30, 2014 to identify the issues on appeal, confirm the transmittal of the full Tribal Court record, and set a briefing schedule. The parties filed briefs with the Appellate Court on January 30, 2015 and February 4, 2015, and the Appellate Court heard oral arguments on March 6, 2014.

Analysis

The issue on appeal is whether the Appellant’s complaint filed on December 1, 2014 was untimely under Article XII, Section F of the LTBB Constitution. If the complaint was untimely, the Tribal Court would be deprived of subject matter jurisdiction and the dismissal of the complaint would be proper.

Because the issue on appeal relates to a conclusion of law rather than a factual finding, the Appellate Court applies a de novo standard of review under Rule 7.501(E) of the Appellate Procedures. Under this standard of review, the Appellate Court refers to the Tribal Court’s record to determine the facts, but it does not defer to the Tribal Court’s legal conclusions.

Election challenges like the one that forms the basis of the complaint in this case are governed by Article XII, Section F of the LTBB Constitution. Section F provides:

Any registered voter of the Little Traverse Bay Bands of Odawa Indians may challenge for cause the results of any election by filing a written challenge with the Tribal Court within ten (10) days after the election....

In Harrington v. LTBB Election Bd.,

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13 Am. Tribal Law 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiogima-v-ltbb-election-board-odawactapp-2015.