Chapter 3.35
APPELLATE RULES
Sections:
3.35.020 Establishment of Court of Appeals.
3.35.030 Composition of the Court.
3.35.050 Conflict of interest.
3.35.060 Appeal from final orders.
3.35.070 Appeal from orders not yet final.
3.35.110 Content of notice of appeal.
3.35.120 Notice of appeal – Service.
3.35.130 Acceptance of review of appeals from final orders.
3.35.140 Three-judge review of decision to dismiss appeal from final order.
3.35.150 Acceptance of review for appeal by permission.
3.35.160 Automatic stay – Exception.
3.35.170 Release in criminal cases.
3.35.190 Preparation of the record.
3.35.200 Cost of preparing the record.
3.35.230 Content of appellant’s brief.
3.35.250 Hearing – Scheduling.
3.35.330 Damages for frivolous appeal.
3.35.010 Scope of chapter.
This chapter governs appeals from decisions of the Tribal Court in both civil and criminal matters. [Res. 2016-17; Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.1.010.]
3.35.020 Establishment of Court of Appeals.
The Chehalis Court of Appeals is hereby established. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.2.010.]
3.35.030 Composition of the Court.
A panel of three judges shall be convened to serve as the Court of Appeals. The panel shall be selected, as needed, from a roster of eligible judges approved by the Business Committee. [Res. 2016-17; Res. 2014-036; Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.2.020.]
3.35.040 Chief judge.
The judge who has served as a judge for the longest time, among those sitting on a particular appellate panel, shall be designated as chief judge. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.2.030.]
3.35.050 Conflict of interest.
The judge who originally heard or decided a case is not eligible to sit on the panel which is hearing the case on appeal. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.2.040.]
3.35.060 Appeal from final orders.
An aggrieved party who claims, in good faith, that the Tribal Court made an error of law or procedure which affected the outcome of the case may seek review in the Court of Appeals of any final order, commitment, or judgment of the Tribal Court with two exceptions:
A. The Tribe cannot appeal the Court’s judgment that a defendant did not commit a civil fishing violation; and
B. The Tribe shall not subject any person for the same offense to be twice put in jeopardy. [Res. 2016-17; Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.3.010.]
3.35.070 Appeal from orders not yet final.
An aggrieved party may seek review of acts of the Tribal Court which are not final by filing a notice with the Court of Appeals for permission to appeal. Permission to appeal shall be granted only if the Tribal Court has committed an obvious error which:
A. Would render further proceedings useless; or
B. Substantially limits the freedom of a party to act. [Res. 2016-17; Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.3.020.]
3.35.080 Scope of the review.
The Court of Appeals shall limit its review to: (A) the record of proceedings from the Tribal Court, (B) errors of law and procedure raised by the appellant in his or her written brief, and (C) oral argument presented at a hearing before the Court of Appeals. [Res. 2016-17; Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.3.030.]
3.35.090 Notice of appeal.
A written notice of appeal must be filed with the Tribal Court within 14 days after the Court enters the decision which the appellant wants reviewed. If the party first files a motion for a new trial, rehearing, or reconsideration and the motion is denied, the 14-day time limit shall be counted from the day the motion is denied. All time limits under this title shall be computed according to CTC 3.15.110. [Res. 2016-17; Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.4.010.]
3.35.100 Filing fee.
A filing fee of $25.00 must accompany any notice of appeal. The filing fee may be waived by the chief judge of the Court of Appeals, in his or her discretion, upon written request of the party for good cause shown. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.4.020.]
3.35.110 Content of notice of appeal.
A notice of appeal or notice for permission to appeal shall be entitled as such and shall:
A. Name the parties and their spokespersons, if any;
B. State the case number, date and nature of the decision appealed from;
C. Specify those parts of the decision which the party wants reviewed; and
D. List each error of law or procedure which the appellant claims was committed by the Tribal Court and its effect on the outcome of the case. [Res. 2016-17; Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.4.030.]
3.35.120 Notice of appeal – Service.
The appellant shall have a copy of the notice served on all parties, within the 14-day limit for filing the notice of appeal. The appellant shall be responsible for returning an affidavit of service to the Court. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.4.040.]
3.35.130 Acceptance of review of appeals from final orders.
The Court Clerk shall provide the chief judge of the Court of Appeals with a copy of the notice of appeal and affidavits of service filed by the appellant. The chief judge shall review the documents and shall accept the appeal on behalf of the Court of Appeals, provided:
A. The notice of appeal was filed within the required time limit;
B. The notice of appeal substantially complies with the requirements of CTC 3.35.110; and
C. The appeal appears, on its face, to comply with CTC 3.35.060.
The chief judge shall notify the parties within 31 days whether the appeal is accepted or is dismissed for failure to meet the requirements of this section. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.5.010.]
3.35.140 Three-judge review of decision to dismiss appeal from final order.
A party may make a written request to the Court of Appeals that the full three-judge panel reconsider the chief judge’s decision to dismiss an appeal under CTC 3.35.130. The request must be filed within five days from the date the notice to dismiss the appeal is served on the party. The decision of the three-judge panel shall be final. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.5.020.]
3.35.150 Acceptance of review for appeal by permission.
The Court Clerk shall provide the chief judge of the Court of Appeals with a copy of the notice for permission to appeal. The chief judge may convene a hearing on the motion and shall give written notice of its decision to the parties within 31 days. Denial of a motion for permission to appeal shall not affect a party’s right to appeal under CTC 3.35.060. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.5.030.]
3.35.160 Automatic stay – Exception.
The judgment or order of the Tribal Court appealed from shall not be carried out unless and until the Court of Appeals upholds the judgment or dismisses the appeal. An exception to this rule is that injunctions, including restraining orders, shall take effect unless the Court of Appeals suspends them. [Res. 2016-17; Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.6.010.]
3.35.170 Release in criminal cases.
Upon receipt of a notice of appeal and after the trial judge gives the parties an opportunity to be heard, the judge may set terms and conditions governing the release of a person convicted of a crime, the disposition of property which has been used as evidence or is the subject of the judgment, and other matters necessary to preserve the Court’s jurisdiction while the appeal is being considered. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.6.020.]
3.35.180 Bond.
The trial judge may require the party who appeals a judgment to deposit cash or other security with the Court while the appeal is being processed if there is a clear showing that some security is needed to guarantee that the Court’s judgment will be enforceable later. The security required shall not be greater in value than the amount of the judgment or fine imposed by the trial court, plus costs. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.6.030.]
3.35.190 Preparation of the record.
The record on appeal shall be made up of the papers and exhibits filed in the trial court, a written transcript of the proceedings, and a copy of the recordings. Within 14 days of the date the Court Clerk receives notice from the Court of Appeals that review has been accepted, the Clerk shall prepare three copies of the record and send them to the judges on the Court of Appeals. The Court Clerk shall make the record available to all parties for inspection and copying at the parties’ expense. [Res. 2016-17; Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.7.010.]
3.35.200 Cost of preparing the record.
A party who requests a copy of the record shall bear the costs of preparing it unless waived by the Court, in its discretion, for good cause shown. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.7.020.]
3.35.210 Motions.
An application for an order or other relief during an appeal shall be made in a motion to the Court of Appeals with proof of service on all other parties. All motions shall include:
A. A statement of the relief sought;
B. A statement of the grounds for the relief sought; and
C. Supporting argument.
Any party may file a response in opposition to a motion within five working days after service of the motion. The chief judge may rule on the motion alone or after consulting with the associate judges on the appellate panel. The Court may shorten or extend the time allowed for responding to a motion. No motion shall be accepted for filing unless accompanied by proof of service on opposing parties. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.8.010.]
3.35.220 Filing briefs.
Within 30 days of notice that the Court of Appeals accepts review, the party making the appeal shall file with the Court of Appeals a written brief and service a copy on all parties. The Court of Appeals may allow a longer time for filing, in its discretion. The respondent shall have 30 days after service of appellant’s brief in which to file a reply brief or statement, and shall serve a copy to each party. A response shall be allowed the appellant in the Court’s discretion. All briefs shall be accompanied by an affidavit of service on opposing parties. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.8.020.]
3.35.230 Content of appellant’s brief.
The brief of the party making the appeal shall be typed and organized as follows:
A. Cover Page. The front cover page shall state the name of the Court and the number of the case, the title of the document (e.g., Brief for Appellant) and the names and addresses of counsel, if any, and the name and address of the appellant.
B. Tables. A table of contents, with page references, and a table of cases cited in the brief, a list of other authorities relied upon with references to the pages of the brief where used.
C. Trial Court Errors. A separate concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the errors.
D. Statement of the Case. A fair statement of the facts and procedure of the trial which are relevant to the issues presented for review, without argument.
E. Argument. The argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record.
F. Conclusions. A short conclusion precisely stating the relief sought.
G. All pages of the brief shall be numbered. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.8.030.]
3.35.240 Respondent’s brief.
The respondent’s brief should answer the appellant’s brief and conform to the basic format of the appellant’s brief. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.8.040.]
3.35.250 Hearing – Scheduling.
The Court of Appeals shall schedule a hearing for oral argument to take place within 30 days of the date the last brief allowed by the Court is filed. The Court Clerk shall have notices of hearing served on all parties. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.8.050.]
3.35.260 Hearing – Conduct.
The parties may present any arguments raised in the briefs at the hearing. The party who appealed shall speak first. Each side is allowed 40 minutes for oral argument. Additional time may be allowed by the Court where it is deemed necessary. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.8.060.]
3.35.270 Additional evidence.
The Court of Appeals may make an exception to the rule that appellate review shall be restricted to the record and may allow the presentation of additional evidence:
A. If the evidence was not available at the time of the trial court proceedings; and
B. Refusal to consider the evidence would result in a clear injustice. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.8.070.]
3.35.280 Form of judgment.
The Court of Appeals’ decision shall be made by a majority vote of the judges. The Court may dismiss an appeal, affirm or modify the decision being reviewed, reverse the decision in whole or in part, order a new trial, or take any other action as the merits of the case and the interest of justice may require. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.9.010.]
3.35.290 Written opinion.
The Court of Appeals shall prepare a written opinion, including any dissenting opinion, within 30 days of the hearing. The Court Clerk shall mail a copy of the opinion to the lower court and to all parties. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.9.020.]
3.35.300 Costs.
Costs on appeal are those incurred by a party in having the record copied, costs of service, the premiums paid for any appeal bonds and the fee paid for filing the appeal. Costs of review shall be determined and awarded by the Court of Appeals. Appellant shall pay the costs of review if the appeal is dismissed or if the judgment is affirmed. Respondent shall pay the costs if the judgment is reversed. In any other case the costs shall be awarded only as ordered by the Court. The chief judge of the Court of Appeals may, in his discretion, waive all or part of the costs incurred, if justice so requires. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.9.030.]
3.35.310 Bill of costs.
A party desiring costs to be assessed shall submit an itemized and verified bill of costs which shall be filed with proof of service on all parties within seven days of being notified of entry of judgment. Objections may be filed within seven days of service. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.9.040.]
3.35.320 Violation of rule.
Failure to comply with the rules set forth in this chapter may result in revocation of the party’s right to participate further in the review process. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.10.010.]
3.35.330 Damages for frivolous appeal.
If the Court of Appeals determines that an appeal is frivolous, it may award damages and costs to the respondent. [Res. 2011-020; Res. 2006-63; GC vote 10/11/1988. Prior code § 2.4.10.020.]
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