News you can use

Small wins round one in election protest

Former candidate for the Chippewa Cree Tribe's tribal council Stacey Small has won another day in court, with the appellate court for Rocky Boy's Indian Reservation reversing a tribal court decision to dismiss his complaint about the 2010 primary election.

"The Court is charged with maintaining the integrity of the judicial system by (ensuring) that the Tribal Code is uniformly applied and that all parties are afforded the procedural protections guaranteed under the law, " Chief Appellate Judge Torian Donahoe of Missoula wrote in her opinion. "Accordingly, the Court is left with no reasonable alternative but to reverse and remand this matter in light of the multiplicity of errors in the lower court's decision and the marked procedural infirmities surrounding this case. "

Small, who lost his bid in the primary election in October 2010, and other candidates including a candidate who won in the primary, filed a complaint with the tribal election committee claiming that procedures, including conducting background checks, had not properly been followed.

Under tribal law, tribal members cannot file as candidates if less than five years have passed after serving out a sentence on a felony conviction. Small said that candidate Neal Rosette Sr. had been convicted of a felony — forgery by common scheme for forging names on a private business account in which he was a partner — in 2005 and was sentenced to three years.

The board responded that the record of Rosette had been checked and because the charge had been dismissed, he was eligible to run.

Rosette served a three-year deferred imposition of sentence and once he served out the probationary period the charge was struck from his record and his case sealed.

In the lawsuit, the plaintiffs allege that Rosette did not file the proper request to have the case dismissed, and because of that the charge was not actually dismissed, although the case was sealed.

After Judge Joel Rosette dismissed the complaint, Small appealed that decision. His appeal included the allegation that Rosette, the nephew of Neal Rosette Sr., should have recused himself.

A representative of the Rocky Boy government said Monday that the outcome of the case is one reason the tribal council is waiting to decide what to do next to fill the spot on the council left by former Chair Raymond "Jake" Parker Jr. 's resignation.

Parker resigned Monday before pleading guilty in federal court in Great Falls Tuesday to embezzling from the tribe.

Donahoe wrote in her opinion that the tribal court granted the motion to dismiss without giving Small the opportunity to respond to the motion.

She wrote that granting a motion to dismiss is a rarely used action, citing court cases that state it's "axiomatic that '(t) he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted'" and complaint dismissal is "only proper in 'extraordinary' cases. "

She also cited a U. S. Supreme Court ruling that the likelihood of a complaint's success is not a test for whether it should be dismissed.

Donahoe also noted that the language in the decision to dismiss is very similar to the election committee's language in its motion, and that the tribal court acknowledged that it simply had reiterated the election committee's response about the protest over whether a deferred imposition of sentence constitutes a conviction.

She also wrote that the tribal constitution provisions cited as the basis for dismissing the charges do not relate to the election committee's authority, as stated in the dismissal.

Donahoe wrote that the assertion in the election committee's appellate arguments that the tribal court had to act quickly to allow the general election to proceed are "not well taken. " The court could have acted on the request to delay the general election separately from the complaint itself and allowed Small the opportunity to respond to the motion to dismiss, she wrote.

"Proper application of the rules would have afforded the Appellants' procedural due process and the option of recusing Judge Rosette, " Donahoe continued. "The Court will not address the alleged conflict of interest claims against Judge Rosette. However, those unfortunate questions could have been avoided had the Tribal Court adhered to the procedures and protections set forth in the Rules of Civil Procedure. "

Donahoe wrote that the integrity of the judicial system requires that all who come before it are offered the same procedural protections.

"The Tribe is free to adopt rules and procedures as it sees fit; the judicial system is charged with insuring that those measures are properly applied. Unfortunately, this is not the first time that the (appellate) Court has had to address procedural errors which impacted the rights of the parties. "

 

Reader Comments(0)