Sallaway v. Ho-Chunk Nation Election Board

7 Am. Tribal Law 192
Ho-Chunk Nation Trial Court·Decided June 27, 2007·No. No. CV 07-47·Published·Cited by 2 cases

Opinion

[194] ORDER (Granting Motions to Dismiss)

TODD R. MATHA, Chief Judge.

INTRODUCTION

The Court must determine whether to grant the defendants’ requests for dismissal of this cause of action on the grounds of res judicata, and/or collateral estoppel. The Court previously adjudicated this identical matter and rendered a final judgment from which the parties could seek appellate review. Regardless, the prior decision remains undisturbed, and the Court is unconvinced by the proffered reasons supporting the plaintiffs’ invitation to reexamine the merits of this fully litigated case. The analysis of the Court follows below.

PROCEDURAL HISTORY

The Court recounts the procedural history in significant detail in a previous judgment. Order (Prelim.Determinat.ions), CV 07-47 (HCN Tr. Ct., June 19, 2007) at 1-2. For purposes, of this decision, the Court notes that the defendant, Ho-Chunk Nation Election Board (hereinafter Election Board), by and through Ho-Chunk Nation Department of Justice (hereinafter DOJ) Attorney Brian T. Stevens, filed two (2) Motion(s) to Quash Subpoena on June 22, 2007, each accompanied by an affidavit and Motion for Expedited Review. See Ho-Chunk Nation Rules of Civil Procedure (hereinafter HCN R. Civ. P.), Rules 18, 19(C), 44(A). On the same date, the defendant, Wilfrid Cleveland, filed a timely Motion to Dismiss. See Order (Prelim. Determinations) at 5-6.

The plaintiff, Michael J. Sallaway, by and through Attorney Kenneth J. Artis, filed a timely Response to Motion to Dismiss on June 25, 2007, and also filed the Motion for Preliminary Injunction Barring Swearing-In of Wilfrid Cleveland as President of the Ho-Chunk Nation.1 Id. at 6. On June 26, 2007, the plaintiff, JoAnn F. Jones, submitted an untimely Response to Defendant’s Motion to Dismiss, but the parties did not object to its consideration by the Court. Mot. Hr’g (LPER, June 26, 2007, 09:24:49 CDT). The Court convened the Motion Hearing on June 26, 2007 at 9:00 a.m. CDT. The following parties appeared at the Hearing; Attorney Kenneth J. Artis, plaintiff Michael J. Sallaway’s counsel; JoAnn F. Jones, plaintiff; Sandra E. Decorah, defendant Election Board’s designated representative, and DOJ Attorney Brian T. Stevens, defendant’s counsel; and Wilfrid Cleveland, defendant.

APPLICABLE LAW

CONSTITUTION OF THE HO-CHUNK NATION

Art. VI Executive

Sec. 3. Qualifications. The President shall be at least thirty-five (35) years old and eligible to vote. No person convicted of a felony shall serve as President unless pardoned.

[195] Art. VII Judiciary

Sec. 6. Powers of the Tribal Court.

(a) The Trial Court shall have the power to make findings of fact and conclusions of law. The Trial Court shall have the power to issue all remedies in law and in equity including injunctive and declaratory relief and all writs including attachment and mandamus.

Art. VIII Elections

Sec. 6. Certification of Election Results. The Election Board shall certify election results within three (3) days after the date of election.

Sec. 7. Challenges of Election Results. Any member of the Ho-Chunk Nation may challenge the results of any election by filing suit in Tribal Court within ten (10) days after the Election Board certifies the election results. The Tribal Court shall hear and decide a challenge to any election within twenty (20) days after the challenge is filed in Tribal Court.

Sec. 8. Oath of Office. The Election Board shall administer the oath for the offices of President, Legislature, and Judiciary on the 4th Wednesday following the election after the Election Board certifies the Election results.

ELECTION ORDINANCE, 2 HCC § 6

Subsec. 6. Qualifications.

b. Qualifications of the President.

(1) All candidates for the position of President shall meet the qualifications listed in Article VI, Section 3 of the Constitution, which states:

Section 3. Qualifications. The President shall be at least thirty-five (35) years old and eligible to vote. No person convicted of a felony shall serve as President unless pardoned.

(2) Pardon shall be made by the jurisdiction that issued the felony conviction.

1'. Certification of Qualifications.

(1) The Election Board shall determine whether each candidate for elective office meets the appropriate qualifications listed in the Constitution and any other qualifications required under the laws of the Ho-Chunk Nation, including paragraph 6d, above, and the Ho-Chunk Nation Code of Ethics Act (2 HCC § 1).

Subsec. 8. Nominations.

h. Final List of Candidates. The Election Board shall certify all valid Official Nomination Petition Forms and Official Declaration of Candidacy Forms. The Election Board shall post the final list of candidates for each elective office at the ten (10) Polling Places and in other appropriate locations at least thirty (30) calendar days before the date of the election. The Election Board shall use the Certificate of Nomination Form (Election Board Form 3 at Appendix A).

Subsec. 15. Challenges to the Election Results.

b. The person challenging the election results shall prove by clear- and convincing evidence that the Election Board violated this Election Ordinance or otherwise conducted an unfair election, and that the outcome of the election would have been different but for the violation. If the Court finds the challenge is frivolous and/or wholly without merit, the party challenging shall be assessed costs of the action in an amount to equal five hundred dollars ($500.00).

HO-CHUNK NATION RULES OF CIVIL PROCEDURE

Rule 18. Types of Motions.

Motions are requests directed to the Court and must be in writing except for those made in Court. Motions based on factual matters shall be supported by affi[196] davits, references to other documents, testimony, exhibits or other material already in the Court record. Motions based on legal matters shall contain or be supported by a legal memorandum, which states the issues and legal basis relied on by the moving party. The Motions referenced within these rules shall not be considered exhaustive of the Motions available to litigants.

Rule 19. Filing and Responding to Motions,

(C) Motions for Expedited Consideration. Any Motion that requires action within five (5) calendar days shall be accompanied by a Motion for Expedited Consideration, The Motion for Expedited Consideration shall state the reasons why the accompanying Motion should be heard prior to the normal time period, and what efforts the party has made to resolve the issue with the opposing party prior to filing the Motion for Expedited, Consideration,.

Rule 44. Presence of Parties and Witnesses.

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Sallaway v. Ho-Chunk Nation Election Board, 7 Am. Tribal Law 192 (hochunkct 2007).

7 Am. Tribal Law 192 (Sallaway v. Ho-Chunk Nation Election Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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