ADAMS v. KELLY

12 NICS App. 88, ADAMS v. KELLY (November 2014)

IN THE NOOKSACK TRIBAL COURT OF APPEALS

NOOKSACK INDIAN TRIBE

DEMING, WASHINGTON

FRANCINE ADAMS, et al., individually and on behalf of their minor children, enrolled members of the Nooksack Indian Tribe, Plaintiffs/Appellants,

ROBERT KELLY, Chairman of the Nooksack Tribal Council, et al., Defendants/Appellees.

NO. 2014-CI-CL-007 (November 13, 2014)

SYLLABUS^*

Parties to a tribal court action provided notice of appeal to opposing counsel but failed to verify that the notice of appeal had been received by the tribal court and failed to pay the appeal filing fee. Tribal court had no record of the appeal being filed or filing fee being paid. Upon discovering the error after the deadline for filing the appeal had passed, the would-be Appellants filed a motion asking the trial court to extend the time to appeal, which the trial court denied. Appellants then timely appealed the trial court order denying the motion to extend time. Court of Appeals holds that trial court did not abuse its discretion in denying the motion to extend time. Trial Court order affirmed.

OPINION

Before:

Eric Nielsen, Chief Judge; Douglas Nash, Associate Judge; Mark W. Pouley, Associate Judge.

Appearances:

Gabriel S. Galanda, Anthony S. Broadman and Ryan D. Drevekracht of Galanda Broadman PLLC, for Appellants.

Thomas P. Schlosser and Rebecca JCH Jackson of Morisset, Schlosser, Jozwiak & Somerville; and Grett Hurley and Rickie Armstrong of the Nooksack Indian Tribe Office of Tribal Attorney, for Appellees.

Per Curiam:

12 NICS App. 88, ADAMS v. KELLY (November 2014) p. 89

This matter comes before the Court of Appeals pursuant to a Notice of Appeal filed on August 22, 2014. Appellants sought to appeal separate orders of the Nooksack Tribal Court. First, Appellants sought to appeal a February 7, 2014 order denying their request that the court enjoin a majority of the Tribal Council from enforcing two resolutions removing two council members from office. Second, Appellants sought to appeal a June 26, 2014 order dismissing that claim and the additional claim that a “base enrollee” provision in the Tribe’s enrollment ordinance violates the Nooksack Constitution.

Appellants mailed counsel for Appellees with a notice of appeal from the above orders, which counsel received on July 7, 2014. On August 12, 2014, counsel for the Appellees inquired with the trial court about a briefing schedule. The trial court discovered it did not receive any notice of appeal from the February 7 and June 26 orders or the required filing fee, and the court so informed the parties. On August 18, 2014, Appellants filed a motion requesting the trial court extend time for leave to file an appeal from the two orders. On August 19, 2014 the trial court denied the request. Appellants timely appeal that order through their August 22 Notice of Appeal.

The only order subject to appeal is the trial court’s August 19 order denying an extension of time to file the earlier appeal, and the sole issue on appeal is whether the trial court erred in denying Appellants’ request to extend time to file that notice of appeal. Assuming the trial court has the authority to grant an extension of time to file a notice of appeal, we hold that it did not abuse its discretion in denying Appellants’ motion. We further hold that assuming this Court has the inherent authority to extend the time for filing a notice of appeal, based on the record we find Appellants fail to show good cause why an extension should be granted.

Under Nooksack Tribal Code (NTC) 80.03.010, an aggrieved party may seek appellate review of a final order or judgment. To initiate an appeal a party must file a Notice of Appeal within 14 days from the trial court’s decision and serve the opposing party with the notice, and must pay the filing fee unless waived by the Chief Judge of the Court of Appeals. NTC 80.04.010, 80.04.020 and 80.04.040. The Chief Judge of the Court of Appeals “shall” accept the appeal on behalf of the Court of Appeals provided there is compliance with NTC 80.04.010 and 80.04.040. NTC 80.05.010 (a).

Under NTC 10.05.050(d), the trial court may allow the extension of any time limit so long as the right to a speedy trial in a criminal case is not denied. We hold the trial court’s decision to grant or deny a motion to extend time under this provision is reviewed under the abuse of discretion standard. Under the abuse of discretion standard of review, we will reverse the trial court only if we conclude that no reasonable person could agree with the trial court's ruling. See, Hoopa Valley Housing Authority v. Doolittle, 7 NICS App. 45, 47 (Hoopa Valley Tribal Ct. App. 2005) (abuse of discretion standard). The court abuses its discretion under the “no reasonable person” standard if it commits “(1) a clear error of judgment in its conclusions based on the weight of the relevant factors, (2) applied the wrong law or (3) its decision rested on

12 NICS App. 88, ADAMS v. KELLY (November 2014) p. 90

clearly erroneous findings of material fact.” Doolittle, at 47 (citing United States v. Washington, 3954 F.3d 1152, 1157 (9th Cir. 2005)).

The record shows that on July 2, 2014, an employee at Appellants’ counsel’s firm prepared a declaration that she mailed the notice of appeal to the Tribe’s Chairman and counsel. She subsequently declared she mailed the notice of appeal from the court’s June 26, 2014 order to the court on July 2, 2014 as well. It is undisputed, however, the court never received the notice of appeal. Appellants did not provide any independent evidence the notice of appeal was mailed to the court, or evidence that the court received the notice of appeal. Furthermore, the trial court found Appellants did not file the required filing fee, which is also undisputed.

It was Appellants’ obligation to file a timely notice of appeal and by choosing to send the notice by mail, they assumed the risk that for whatever reasons it would not be delivered. Although Appellants’ counsel’s employee may have mailed or believed she mailed the notice of appeal to the court, it is undisputed the court never received it. Also, Appellants chose not to request the court acknowledge receipt of the notice by letter, file stamp or email, nor did they inquire by email or phone whether the court received the notice. If they had done so they would have had evidence the court did receive the notice or they would have known it did not and presumably could have timely filed another notice. Assuming the trial court even has the authority to extend time to file the notice of appeal¹, on this record its denial is not an abuse of discretion because there was no clear error of judgment, the court did not apply the wrong law, and its decision did not rest on clearly erroneous findings of material fact.

Moreover, assuming this Court has the inherent authority to extend time to file a notice of appeal², based on the record and for the reasons articulated by the trial court we decline to do so. In addition, it is undisputed Appellants never paid the filing fee and never requested this Court’s Chief Judge waive the fee. On that basis alone, dismissal of Appellants’ appeal from the February 7 and June 26 orders would have been warranted.

We hold the trial court did not abuse its discretion in denying Appellants’ request to extend the time to file the notice of appeal from the February 7, 2014 and June 26, 2014 orders. We also hold that Appellants’ have failed to show why this Court should grant the extension.

The trial court’s August 19, 2014 order is affirmed. Appellants failed to timely appeal from the trial court’s February 7 and June 26 orders.

The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

We do not decide in this case whether the trial court has that authority.

We note the code does not specifically address this Court’s authority to extend time to file a notice of appeal and we do not decide whether this Court has the inherent authority to do so. We only find that even if this Court has that authority, on this record Appellants have failed to make any showing that convinces us there is good cause to extend time to file the notice of appeal or that in the interest of justice an extension is appropriate.