(a)
In criminal or quasi-criminal actions, or if otherwise established
by ordinance, the burden of proof shall be beyond reasonable doubt.
2.1.03 Course of Proceedings
(a)
Tribal Law and Custom. The Tribal Court shall follow the Tribal
Rules of Court unless the partys stipulate to resolving the
complaint by tribal law and custom. The parties must first stipulate
(1) to what they believe to be the traditional custom of settling
disputes is, (2) what the traditional law governing the dispute is,
and (3) must agree to abide by the decision rendered by the person
or persons that they determine to be the traditional finder or finders
of law and fact. The Tribal Court Judge may act as a mediator in such
a proceeding if all the parties request that the Judge do so. The
parties may also stipulate to a mediator of their choosing.
(b)
Tribal Court Procedure. If the parties do not stipulate to
a traditional custom for settling disputes but still agree that the
dispute is governed by traditional law, the Court will follow Tribal
Court procedure as set forth in these Rules of Court.
Traditional Tribal Law
2.1.04 Traditional Tribal Law
The
traditional law of the Hoopa Valley Tribe is the common law of the
Tribe tantamount to the written law of the Tribe and will be applied
in all situations where it is relevant to the issues raised in an
action before the Court. The Court will first look to the laws adopted
by the Tribe and to the Constitution and Bylaws of the Hoopa Valley
Tribe. If no written Tribal law applies to a cause of action or the
issues involved in an action, the Court will look to the Tribes
traditional law and if it finds the traditional law to be applicable
in settling the dispute, will base its decision on traditional Tribal
law.
(a)
The Tribal Court may be used to facilitate a traditional form of
dispute resolution, akin to a mediated settlement. The parties may
identify a [go-between], to mediate between the parties until a
stipulated agreement is reached. The Court will then issue an order
containing the stipulated agreement.
(b)
Where the parties choose to follow the civil procedures of Title
2, in any dispute, claim, or action, in which a party asserts that
traditional Tribal law governs the outcome, the Court must first
determine what the traditional law is. If the traditional Tribal
law has been acknowledged by a legal writing of the Tribe the Court
will apply the written law.
(1)
Evidence that a traditional law is written includes written reference
to a traditional law, right, or custom in a Tribal resolution,
motion, order, ordinance or other document acted upon by the Tribal
Council. Anthropological writings or publications, and personal
writings are not evidence that the traditional law is written,
but may be presented as persuasive or supporting evidence that
the traditional law or custom exists.
(c)
In any dispute, claim, or action, in which a party asserts that
traditional Tribal law governs the outcome, and the Court finds
that the traditional law is unwritten, the Court will hold a hearing
to determine what the traditional law is.
(1)
The parties may stipulate to what the traditional law to be applied
is. If the parties stipulate to the traditional Tribal law, the
Court will then hold an evidentiary hearing to determine the facts
of the case.
(2)
If the parties do not stipulate to the traditional Tribal law,
the parties may stipulate to a list of neutral Tribal members
to act as expert witnesses, whose testimony will be relied upon
to determine the traditional Tribal law.
(A)
If the parties do not stipulate to such a list, each party shall
be allowed to call their own expert witnesses. The Court will
determine how many expert witnesses each party may call to testify
except that each party shall be allowed to call the same number
of expert witnesses.
(B) Each party shall submit a list of Tribal elders names
that they wish to call as expert witnesses. The opposing party
will have the right to voir dire the witnesses to determine
if they are, in fact, knowledgeable of traditional Tribal law.
(C)
Each party shall also submit to the Court a list of Tribal members
names that the party believes to be neutral and impartial, and
knowledgeable of traditional Tribal law. The Court shall select
from the submitted list names of individuals to act as expert
witnesses for the Court.
(3)
The Court may, but is not required to, accept recommendations
of the parties before determining the neutral and impartial expert
witnesses that will testify before the Court. The Court will determine
how many neutral and impartial witnesses may testify except that
the number will not exceed the number of witnesses that each party
will be allowed to call as expert witnesses. The parties will
have the right to voir dire the witnesses to determine if they
are, in fact, knowledgeable of traditional Tribal law.
(d)
After the expert witnesses have been determined, the parties will
submit to each other and the Court a list of questions to be asked
of each of the witnesses. A party may object to any question submitted
by an opposing party. The Court will then determine which questions
will be asked of each of the expert witnesses. The Court shall have
the discretion to ask its own questions of the expert witnesses.
(e)
After hearing the expert witness's testimony the Court will issue
a Conclusion of Law in which the Court will state what it has found
to be the traditional Tribal law. If either of the partys
object to the Courts conclusion, the Court will meet in closed
session with all of the expert witnesses. The Court will then call
for a discussion of the Conclusion of Law by the expert witnesses.
Following this discussion, the Court may re-issue or amend and reissue
the Conclusion of Law, or repeat the process as defined herein,
selecting different neutral and impartial witnesses and/or a different
set of questions to be asked of the expert witnesses.
(f)
Once the Court has determined what the traditional law to be applied
is, the Court will set a date for a conference hearing pursuant
to Title 3, Rule 12 (b).
Chapter 2 - Parties; Joinder of Claims; Persons
Parties
2.2.01 The Capacity to Sue and Be Sued
The capacity of an individual, a tribal entity, or a corporation,
to sue and be sued shall be determined by the law of the Hoopa Valley
Tribe and applicable federal law.
2.2.02 Real Party in Interest
Every
action shall be prosecuted in the name of the real party in interest.
A Real Party in Interest refers to (1) the plaintiff that
has standing to bring the action, i.e., the person who has been, or
will be, harmed by an act of the defendant; (2) the party that can
provide the relief sought by the plaintiff; or (3) a party that can
show that he will be harmed directly should the Court decide in favor
of the plaintiff.
[See
Tribal case law for precedent. FRCP 17 may be looked to, and cases
pertaining to this rule may be cited to as persuasive argument]
Joinder of Claims, Persons
2.2.03 Joinder of Claims and Remedies
A
party asserting a claim to relief may join, either as independent
or as alternate claims, as many claims, legal, or equitable, as the
party has against the opposing party.
[See
Tribal case law for precedent. FRCP 18 may be looked to, and cases
pertaining to this rule may be cited to as persuasive argument]
2.2.04 Joinder of Persons Needed for Just Adjudication (Necessary
Party)
A
person shall be joined as a party in an action, if (1) complete relief
cannot be accorded in his absence or, (2) if the person claims an
interest that cannot be protected in his absence, or (3) if the persons
already parties would be subject to incurring the obligations of a
person not a party to the action.
[See
Tribal case law for precedent. FRCP 19 may be looked to, and cases
pertaining to this rule may be cited to as persuasive argument]
(a) All persons may join in one action as plaintiffs if they assert
any right of relief jointly.
(b)
Persons having claims against the plaintiff may be joined as defendants
and required to interplead if their claims may expose the plaintiff
to double or multiple liability. Such claims do not have to be of
common origin or identical, they may be adverse to and independent
of other parties claims. A defendant exposed to similar liability
may obtain such interpleader by way of cross-claim or counterclaim.
[See Tribal
case law for precedent. FRCP 22 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(c) Upon
timely application anyone shall be permitted to intervene in an action
when the applicant claims an interest relating to the property or
transaction which is the subject of the action and the applicant is
so situated that the disposition of the action may impair or impede
the applicants ability to protect that interest, unless the
applicants interest is adequately represented by existing parties.
[See Tribal
case law for precedent. FRCP 19 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(d) The
Court may order substitution of parties if a party dies, or if a party
becomes incompetent. In a case of any transfer of interest, the action
may be continued by or against the original party unless the court
upon motion directs the person to whom the interest is transferred
to be substituted or joined with the original party. Service of the
motion shall be made with this motion.
(e) Misjoinder
is not ground for dismissal of an action. Parties may be dropped or
added by order of the Court on motion by any party or of its own initiative
at any stage of the action and on such terms as are just.
[See Tribal
case law for precedent. FRCP 21 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
Chapter 3 - Commencement of Action; Service of Process;
Pleadings, Motions and Orders; Time
Commencement
of Action; Service of Process
2.3.01 Commencement of Action
(a) A civil
action is commenced by filing a complaint with the court which conforms
to these Rules and a copy to be served to the defendant, or if there
is more than one defendant, the number of copies necessary to serve
all the defendants named in the action. Upon payment of the filing fee
the Clerk shall accept the original complaint for filing.
(b) A civil
employment action brought pursuant to 1 Hoopa Valley Tribal Code §
1.1.04(f) shall name the Hoopa Valley Tribe as the defendant.
(c) The
filing fee for commencement of a civil action is $25. The Hoopa Valley
Tribe shall not be required to pay any filing fees to the Tribal Court.
(d) Upon
request, the Chief Judge may waive court fees and costs for a party
who is unable to pay court fees and costs.
2.3.02 Filing with the Court Defined
Filing
of all Court documents shall be in the Clerk's office. Filing at any
other location than the Hoopa Valley Tribal Court is of no force or
effect.
(a)
Filing shall be effective only upon presentation in the office of
the Clerk of the Hoopa Valley Tribal Court Filing in any location
other than those provided by this section is ineffective.
(b) Filing
by Fax. Electronic transmission of a document via facsimile machine,
i.e., by fax, does not constitute filing. No documents
may be transmitted directly to the clerk by fax for filing. Any documents
so transmitted shall be rejected and not filed. Filing is complete
when the document is filed with the Clerk.
(1)
A third party may file fax-transmitted pleadings on behalf of the
parties or their counsel. The third party acts as the agent of the
filing party and not as an agent of the court. A document shall
be deemed to be filed when it is submitted by the third party agent,
received in the Clerks office, and filed with the Clerk.
(2)
All fax-transmitted pleadings presented for filing shall be on white
opaque, 8-1/2 x 11 paper. The image of the original manual
signature on the fax copy will constitute an original signature
for all court purposes. The original shall not be substituted, except
by court order. The original shall be maintained by the party originating
the document, the spokesperson or attorney of record, for a period
no less than the maximum allowable time to complete the appellate
process.
(3)
The sending party is required to maintain a transmission record
in the event fax filing later becomes an issue.
(c) Late
filing of material may be permitted by order of Court, providing good
cause is shown.
2.3.03 Summons
Upon filing
the complaint, the court clerk will issue a summons to the plaintiff
for service to the defendant. A summons, or a copy of the summons if
addressed to multiple defendants, shall be issued for each defendant
to be served.
2.3.04 Service
The plaintiff
is responsible for service of a summons and complaint. The plaintiff
shall cause to be personally served on the defendant(s) a copy of the
summons and complaint, and shall instruct the person serving the summons
and complaint on the defendant(s) to fill out a proper proof of service.
The original of the proof of service shall be filed with the Court Clerk
after service.
(a) Effective
Service
The proof
of service must be returned to the Court Clerk within sixty (60) days
of its issuance or the action will be dismissed as a non-suit. The
Court may extend that time an additional thirty (30) days upon a showing
of good cause by the plaintiff.
(b) Such
service may be made by means of certified mail, return receipt requested,
only where personal service is not possible or where the defendant
resides outside the exterior boundaries of the Hoopa Valley Indian
Reservation.
(c) Publication
Upon
a showing by the complainant to the Tribal Court that diligent efforts
were made to serve the complaint on the defendant and that for sufficient
reasons service could not be made, the Judge may allow service to
be made by posting copies of the notice and complaint in two public
places on the Reservation for three weeks and by publication of a
copy of the notice and complaint once a week for three consecutive
weeks in a newspaper of general circulation in the vicinity of the
Reservation. In such case the return date shall be not less than 30
days from the date of first publication.
(d) Service
in Employment Termination Actions
The plaintiff
in a civil employment action brought pursuant to 1 Hoopa Valley Tribal
Code § 1.1.04(f) shall be responsible for service of a summons
and complaint upon each of the following: The Hoopa Valley Tribal
Chairman, the Office of Tribal Attorney, the applicable department
or entity director, and the Director of Personnel. Until a complaint
and summons is served upon each of these entities, service shall not
be complete.
2.3.05 Actions Initiated by the Hoopa Valley Tribe
(a) Where
a citation is used, it shall include information which will accurately
notify the defendant of the facts which allegedly constitute the offense(s)
and the Rule(s) allegedly violated. Where the Tribe uses a complaint
to initiate an action, the complaint shall conform to the requirements
of section 2.3.01.
(b) Service
of Citations
Citations
shall be served on the defendant preferably in person; by mail only
where personal service is not practical. In either event the original
proof of service shall be filed with the Court along with the citation
or a copy thereof.
2.3.06 Service of Subsequent Papers
Defendants
may serve papers on plaintiffs at the address shown by the plaintiffs
on the summons and complaint. After such service by defendant, plaintiffs
may serve defendants at the address the defendant provides on the defendant's
filings. Where the defendant fails to provide a written response to
the complaint within thirty (30) days, then plaintiff shall serve subsequent
papers by serving defendant at his or her last known address, and to
the extent possible, at the place of physical service.
Pleadings, Motions and Orders
2.3.07 Pleadings Allowed
There shall
be a complaint and an answer; if there is a counterclaim, a reply to
the counterclaim; if a cross-claim, an answer to the cross-claim. If
a third party who is not an original party is summoned, then a third
party complaint and if the third party is served a third party answer.
No other pleading shall be allowed, except that the court may order
a reply to an answer or a third party answer.
2.3.08 Format and Contents
All papers
presented for filing shall be on white opaque, 8-1/2 x 11 paper.
Typewriting is preferred, but handwritten filings will be accepted provided
they are clear and legible and of such quality that legible photocopies
can be made. The clerk shall accept all papers presented for filing,
but papers not in substantial compliance with these rules may be rejected
by the Judge of the Court.
(a) Every
pleading will have a caption stating the name of the court, the title
of the action, the file number, and a designation, i.e., complaint,
petition, answer, motion, counterclaim, cross-claim, third party complaint,
etc. The original complaint should name all the parties. Subsequent
pleadings need only name the first party on each side with the appropriate
indication of the other parties.
(b) Each
averment made in a pleading shall be simple, concise, and direct.
No technical forms of pleading or motions, however, are required.
(c) Each
claim founded upon a separate transaction or occurrence and each defense
shall be stated by the pleader in a separate numbered paragraph whenever
a separation facilitates the clear presentation of the matters set
forth. Statements in a pleading may be adopted by reference in a different
part of the same pleading or in another pleading or in a motion. A
copy of any written instrument which is an exhibit to a pleading is
a part of the pleading for all purposes.
(1)
Averments in a pleading to which a responsive pleading is required,
are admitted when not denied in the responsive pleading. Responsive
pleadings include an answer, a reply, a brief in opposition to a
motion, a respondents brief, etc.
[See Tribal
case law for precedent. FRCP 8(d) may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.3.09 Pleading Special Matters
(a) Capacity.
It is not necessary to aver the capacity of a party to sue or be sued,
or the authority of a party to sue or be sued in a representative capacity
or the legal existence of an organized association of persons that is
made a party, except to the extent required to show the jurisdiction
of the court.
(b) Fraud,
Mistake, Condition of the Mind. In all averments of fraud or mistake,
the circumstances constituting fraud or mistake shall be stated with
particularity. Malice, intent, knowledge, and other condition of mind
of a person may be averred generally.
(c) Conditions
Precedent. In pleading the performance or occurrence of conditions
precedent, it is sufficient to aver generally that all conditions precedent
have been performed or have occurred. A denial of performance or occurrence
shall be made specifically and with particularity.
(d) Official
Document or Act. In pleading an official document or official act
it is sufficient to aver that the document was issued or the act done
in compliance with Hoopa Valley Tribal Law.
(e) Judgment.
In pleading a judgment or decision of a foreign court, judicial or quasijudicial
tribunal, or of a board or officer, it is sufficient to aver the judgment
or decision without setting forth matter showing jurisdiction to render
it.
(f) Time
and Place. For the purpose of testing the sufficiency of a pleading,
averments of time and place are material and shall be considered like
all other averments of material matter.
(g) Special
Damage. When items of special damage are claimed, they shall be
specifically stated.
(h) Employment
Termination Actions Brought Pursuant 1 H.V.T.C. § 1.1.04(f) In
an action brought pursuant to 1 Hoopa Valley Tribal Code § 1.1.04(f)
herein, the plaintiff shall state with particularity in the complaint
the following: the date and time of the event complained of; the name
of the supervisor and any other employees involved in the matter; any
relevant Tribal codes alleged to have been violated and the specific
action that violated the relevant tribal codes; the dates and times
of all consultations with supervisors and human resources personnel
and any other employee or tribal official related to this matter; and
the specific relief requested.
[See Tribal
case law for precedent. FRCP 9 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.3.10 Discretion to Strike
The Court
may, upon motion, or at any time in its discretion, and upon terms it
deems proper:
(a) Strike
out any irrelevant, false, or improper matter inserted in any pleading.
(b) Strike
out all or any part of any pleading not drawn or filed in conformity
with these rules.
[See Tribal
case law for precedent. CCPC § 436 may be looked to, and cases
pertaining to this rule may be cited to as persuasive argument]
2.3.11 Address; Signature Required
All papers
presented for filing shall also contain the name, address, and telephone
number of the responsible attorney, spokesperson, or person appearing
on his or her own behalf.
(a) All
papers must be signed by the party or spokesperson or attorney representing
the party. If a pleading, motion, or other paper is not signed, it
shall be stricken unless it is signed promptly after the omission
is called to the attention of the pleader or movant. Such signature
certifies that the signer has read the pleading, motion, or paper
submitted, that the contents are true to the best of his or her knowledge,
and that the pleading, motion, or paper is not being submitted for
an improper purpose. The pleadings need not be verified by affidavit.
[See Tribal
case law for precedent. FRCP 7,8 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.3.12 Complaint
A pleading
which sets forth a claim for relief shall contain:
(a) a
short and plain statement of the grounds upon which the Courts
jurisdiction depends, a short and plain statement of the claim showing
that the pleader is entitled to relief, and, a demand for judgment
for relief the pleader seeks.
(b) or
be accompanied by, a statement of facts, a concise statement of the
law, evidence and arguments relied on, and a discussion of the statutes,
cases, and textbooks cited in support of the position advanced.
2.3.13 Statute of Limitations
(a) No
complaint shall be filed in a civil action unless the events shall have
occurred within a three year period prior to the date of the filing
of the complaint.
(b) Notwithstanding
subsection (a) above, no complaint shall be filed in an action brought
pursuant to § 1.1.04(f) unless the complaint is filed within 30
days of the date of the employee's termination.
2.3.14 Answer
An answer
to a complaint shall be filed with the Court within thirty (30) days
after service of the summons and complaint. The answer shall contain:
(a) a
general or specific denial of each material allegation of the complaint
or petition denied by the defendant; and;
(b)
a statement of any new matter constituting a defense, counterclaim,
or setoff, in ordinary and concise language and without repetition.
2.3.15 Counter Claim and Cross-Claim
A party
may counterclaim any claim the party has against an opposing party arising
out of the same transaction or occurrence that is the subject of the
opposing partys claim and does not require the presence of third
parties of whom the Court cannot acquire jurisdiction. A pleading may
state as a cross-claim any claim by one party against a co-party arising
out of the transaction or occurrence that is the subject matter of the
original claim, counterclaim or any property that is the subject matter
of the transaction.
[See Tribal
case law for precedent. FRCP 13 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(a) When
a pleader fails to make a counter-claim or cross-claim, the pleader
may by leave of court set up the counterclaim or cross-claim by amendment.
2.3.16 Third Party Practice
At any
time after commencement of the action a defending party, as a third
party plaintiff, may cause a summons and complaint to be served upon
a person not a party to the action who is or may be liable to the third
party plaintiff (i.e., the defending party) for all or part of the plaintiffs
claim against the third party plaintiff (defending party).
[See Tribal
case law for precedent. FRCP 14 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(a) The
person served with the summons and third party complaint shall assert
any defenses, counterclaims and cross-claims as provided in subsection
2.4.13.
(b) Leave
of court to make service on a third party is not required if the third
party files the third party complaint within ten days of filing the
original answer; otherwise the third party plaintiff must obtain leave
of court by noticed motion and must notice all parties to the action.
(c) A
third party defendant may proceed against any person not a party to
the action that is or may be liable to the third party defendant for
all or part of the claim made against him. A plaintiff may bring in
a third party when a counterclaim is asserted against him.
2.3.17 Amended & Supplemental Pleadings
A party
may amend his or her pleading at any time before a responsive pleading
is served or, where no responsive pleading is permitted and the action
has not been placed on the calendar the party may amend at any time
within 20 days after it is served. Otherwise a party may amend the partys
pleading only by leave of court or by written consent of the opposing
party; and leave may be given when justice so requires.
[See Tribal
case law for precedent. FRCP 15 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.3.18 Motions and Other Papers
A motion
is a request for an order. A request to the Court for an order shall
be by motion which, unless made during a hearing or trial, shall be
made in writing, shall state with particularity the grounds for the
motion, and state the relief or order sought. The requirement of writing
is fulfilled if the motion is stated in the written notice of the hearing
of the motion. Motions must be in the proper form as provided for by
subsection 2.4.08, and must be signed in accordance with subsection
2.4.09.
2.3.19 RESERVED
[former
§2.3.19 deleted]
Time
2.3.20 Time
Whenever
a Rule or an order of the Court requires that an action be taken within
a certain number of days, the time computation does not include the
day the order is given, but begins as of the next following day and
runs until the last day specified, unless the last day falls on a weekend
or a Tribal Holiday, in which event the due date is the next Court work
day.
[See Tribal
case law for precedent. FRCP 6 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(a) "Days"
means calendar days unless a rule specifically states otherwise.
2.3.21 Response to Complaint
An answer
or other response to a complaint or cross-complaint is to be filed,
and copies served on all other parties, with thirty (30) days of service.
2.3.22 Response to a Motion
Any response
to a motion is to be filed, and copies served on all other parties,
within fourteen (14) days of service. A reply to the response shall
be served and filed by the moving party not less than five (5) days
preceding the noticed or continued date of hearing, unless the Court
for good cause orders otherwise.
2.3.23 Notice of Hearings and Trials
Notice
of hearings and trials is to be provided at least five (5) days in advance
if the parties are personally served, and ten days if notice is delivered
by mail.
(a) When
a time limit is counted from the time that notice is delivered to
a person by mail, it shall be presumed that delivery takes place five
days after notice is mailed.
2.3.24.1 The Courts Discretion
The Court
may change time periods for good cause shown. 2.3.24.2 Ex Parte Application
In the absence of emergency or exigent circumstances, an application
for an order shall not be made ex parte unless it appears by affidavit
or declaration that:
(a) No
less than 24 hours before the application, the party informed the
opposing party or the opposing partys spokesperson when and
where the application would be made; and
(b) Good
cause exists to grant the requested order.
Chapter 4: Motion Practice; Pretrial Proceedings;
Discovery; Witnesses; Subpoenas
Motion Practice
2.4.01 Motion Defined
A motion
is a request to the Court for an order, which shall be made by written
motion before trial wherever possible. A motion made verbally may be
allowed at trial, at the discretion of the court if the court finds
that in the interest of justice it is proper to do so.
(a) The
motion shall specifically state what order is sought, and the reasons
why the Court should grant the request. A written memorandum of legal
authority in support of the motion is encouraged but is not required.
2.4.02 Service
A Proof
of Service must be filed with the notice of motion stating that copies
of the same were mailed or delivered to the opposing party.
2.4.03 Opposition
The opposing
party shall have fourteen (14) days from service in which to respond
to the motion, plus five additional days if service is by mail. A reply
to the opposition shall be served and filed by the moving party not
less than five (5) days preceding the noticed or continued date of hearing,
unless the Court for good cause orders otherwise
2.4.04 Motion for Summary Judgment
(a) Any
party may move for Summary Judgment in any action or proceeding if it
is contended that the action has no merit or that there is no defense
to the action or proceeding. The motion may be made at any time after
sixty (60) days have elapsed since the general appearance in the action
or proceeding of each party against whom the motion is directed or at
any earlier time after the general appearance at the Court with or without
notice and upon good cause shown may direct. Notice of the motion and
supporting papers shall be served on all other parties to the action
at least twenty-eight (28) days before the time appointed for hearing.
However, if the notice is served by the mail the required twenty-eight
day period of notice shall be increased by five days if the place of
address is within the Hoopa Valley Indian Reservation or the State of
California. The required twenty-eight day period shall be increased
by ten (10) days if the place of the address is outside of the State
of California but within the United States.
(b) Any
motion for Summary Judgment shall be heard no later than thirty (30)
days before the date of trial, unless the Court for good cause shown
orders otherwise.
(c) Opposition
to the motion shall be served and filed not less than fourteen (14)
days preceding the noticed or continued date of hearing, unless the
Court for good cause, orders otherwise. The opposition where appropriate
shall consist of affidavits, declarations, admissions, answers to interrogatories,
depositions, and matters of which judicial notice shall or may be taken.
Opposition papers shall include a separate statement which responds
to each of the material facts contended by the moving party to be undisputed,
indicating whether the opposing party agrees or disagrees that those
facts are undisputed. The statement also shall set forth plainly and
concisely any other material facts which the opposing party contends
are disputed. Each material fact contended by the opposing party to
be disputed shall be followed by a reference to the supporting evidence.
Failure to comply with this requirement of a separate statement may
constitute a sufficient ground, in the Courts discretion, for
granting the motion. The motion for summary judgment shall be supported
by affidavits, declaration, admissions, answers to interrogatories,
depositions and matters of which judicial notice shall or may be taken.
The supporting papers shall include a separate statement setting forth
plainly and concisely all material facts which the moving party contends
are undisputed. Each of the material facts stated shall be followed
by a reference to the supporting evidence. The failure to comply with
this requirement of a separate statement, may in the Courts discretion
constitute a sufficient ground for denial of the motion.
(d) Reply.
In a reply to the opposition shall be served and filed by the moving
party not less than five (5) days preceding the noticed or continued
date of hearing, unless the Court for good cause orders otherwise.
(e) The
motion for Summary Judgment shall be granted if all the papers submitted
show that there is no triable issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. In determining
whether the papers show that there is no triable issue as to any material
fact, the Court shall consider all of the evidence set forth in the
papers, except that to which objections have been made and sustained
by the Court, and all inferences reasonable deducible from the evidence,
except summary judgment shall not be granted by the Court based on inferences
reasonable deducible from the evidence, if contradicted by other inferences
or evidence, which raise a triable issue as to any material facts.
(f) Supporting
and opposing Affidavits or Declarations shall be made by any person
on personal knowledge, shall set forth admissible evidence and shall
show affirmatively that the affiant is competent to testify to the matter
stated in the affidavits or declarations. Any objections based on the
failure to comply with the requirements of this subdivision shall be
made at the hearing or shall be deemed waived.
(g) A party
may move for summary adjudication as to one or more causes of action
within an action, one or more affirmative defenses, one or more claims
for damages, or one or more issues of duty, if that party contends that
the cause of action has no merit or that there is no affirmative defenses
thereto, or that there is no merit to an affirmative defense as to any
cause of action, or both, or there is no merit to a claim for damages
as specified in this Title, or that one or more defense either owed
or did not owe a duty to a Plaintiff or Plaintiffs. A motion for summary
adjudication shall be granted only if it completely disposes of a cause
of action, an affirmative defense, a claim for damages, or an issue
of duty.
(h) Upon
the denial of a motion for summary judgment or summary adjudication,
on the ground there is a triable issue as to one or more material facts,
the Court shall, by written order, specify one or more material facts
raised by the motion as to which the Court has determined there exists
a triable controversy. This determination shall specifically refer to
the evidence proffered in support of and in opposition to the motion
which indicates that a triable controversy exists. Upon the grant of
a motion for summary judgment, on the ground that there is no triable
issue of material fact, the Court shall, by written or oral order specify
the reasons for its determination. The order shall specifically refer
to the evidence proffered in support of, and if applicable in opposition
to the motion which indicates that no triable issue exists. The Court
shall also state its reasons for any other determination. The Court
shall record this determination by written order.
(i) In
actions which arise out of an injury to the person or to property, when
a motion for summary judgment was granted on the basis that the Defendant
was without fault, no other Defendant during trial, over Plaintiffs
objection may attempt to attribute fault to or comment on the absence
or involvement of the Defendant who was granted the motion.
(j) A summary
judgment entered under this section is an appealable judgment as in
other cases. Upon entry of an order pursuant to this section except
the entry of summary judgment, a party may within ten (10) days after
service upon him or her of a written notice of entry of the order, petition
the Hoopa Valley Tribal Court of Appeal for a preemptory writ. If the
notice is served by mail, the initial period within which to file the
petition shall be increased by five (5) days if the place of address
is within the Hoopa Valley Indian Reservation or the State of California.
If the notice is served by mail, the initial period within which to
file the petition shall be increase by ten (10) days if the place of
address is outside the State of California. If the notice is served
by facsimile transmission, express mail, or another method of delivery
providing for overnight delivery, the initial period within which to
file the petition shall be increased by two (2) calendar days. The Tribal
Court may, for good cause shown, and prior to the expiration of the
initial period, extend the time for one additional period not to exceed
ten (10) days.
(k) Case
not fully adjudicated on motion. If on motion under this Rule judgment
is not rendered upon the whole case or for all the relief asked and
a trial is necessary, the court at the hearing of the motion, by examining
the pleadings and the evidence before it and by interrogating counsel,
shall if practicable ascertain what material facts are actually and
in good faith converted. It shall thereupon make an order specifying
the facts that appear without substantial controversy, including the
extent to which the amount of damages or other relief is not in controversy,
and directing such further proceedings in the action as are just. Upon
the trial of the action the facts so specific shall be deemed established,
and the trial shall be conducted accordingly.
(l) Form
of affidavits; further testimony; defense required. Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred to
in an affidavit shall be attached thereto or served therewith. The court
may permit affidavits to be supplemented or opposed by depositions,
answers to interrogatories, or further affidavits. When a motion for
summary judgment is made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary judgment, if appropriate,
shall be entered against him.
(m) When
affidavits are unavailable. Should it appear from the affidavits of
a party opposing the motion that he cannot for reasons stated present
by affidavit facts essential to justify his opposition, the court may
refuse the application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.
(n) Affidavits
made in bad faith. Should it appear to the satisfaction of the court
at any time that any of the affidavits presented pursuant to this Rule
are presented in bad faith or solely for the purpose of delay, the court
shall forthwith order the party employing them to pay to the other party
the amount of the reasonable attorneys fees, and any offending
party or attorney may be adjudged guilty of contempt.
[See Tribal
case law for precedent. FRCP 56, CCP § 437c, may be looked to,
and cases pertaining to this rule may be cited to as persuasive argument]
2.4.05 Motion Hearings Defined
A motion
hearing is a pretrial proceeding and takes place when a party has asked
the Court to order that something be done in connection with a pending
case. Hearings on motions are not automatic. See subsection 2.4.4. Hearings
will be set when oral argument would be helpful to the Court and on
request of a party or parties or the Court's own motion. Motions may
be filed to add or eliminate parties, to amend pleadings, to request
a jury trial, to prepare or simplify a case for trial, or to request
judgment as a matter of law in the absence of material disputed issues
of fact pursuant to subsection 2.4.4.
2.4.06 Motion Hearing
Unless
requested by either party or ordered by the Court, a hearing on the
motion will not be held. In the event a hearing is desired, a hearing
date can be requested in writing or by contacting the Court prior to
filing the notice. Hearings will be set as soon as practicable.
Pretrial Proceedings; Disclosure
2.4.07 Pretrial Conference Hearings Defined
The purpose
of a conference hearing is to simplify the issues, eliminate frivolous
claims or defenses, to discourage wasteful pretrial activities, and
to improve the quality of trial through preparation by discussing such
things as settlement prospects, facts and issues not in dispute, evidence
to be presented, appropriate witnesses, and jury trial requests. Pretrial
conferences are also necessary for planning for discovery. To encourage
honest discussion, nothing said at a conference hearing shall be admitted
in evidence. Conference hearings may, in the exercise of the Court's
discretion, on request of a party or on the Court's own motion, be held
off the record.
2.4.08 Pretrial Conference Hearing; Discovery Plan
Conference
hearings may be scheduled on a written request of one or more parties,
or on the Courts own initiative. If discovery is sought by any
party, a pretrial conference is required for the purpose of developing
a discovery plan. If such a hearing is scheduled, the parties shall
meet to discuss the nature and basis of their claims and defenses and
the possibilities for a prompt settlement or resolution of the case,
as soon as practicable and at least 14 days before a scheduling conference
is held.
(a) No
formal discovery, including discovery from non-parties, shall be initiated
by any party until after the meet and confer session pursuant to section
2.4.08, except by stipulation by all named plaintiffs and all named
defendants who have been served, or upon order of the court.
(b) Unless
otherwise ordered, no later than 75 days after service of the summons
and complaint upon all named defendants, lead trial counsel shall
meet n person and confer for the purposes specified in this section.
[See Tribal
case law for precedent. FRCP 16; 26(f), may be looked to, and cases
pertaining to this rule may be cited to as persuasive argument]
2.4.09 Required Disclosures
(a) Initial
Disclosure. A party shall, without awaiting a discovery request,
provide to the other parties
(1)
the name, address and telephone number of each individual likely
to have discoverable information relevant to the disputed facts;
(2)
a copy of, or a description and location of, all documents, data
compilations, and tangible things in the possession, custody, or
control of the party that are relevant to the disputed facts alleged
with particularity in the pleadings;
(3)
a computation of any damages claimed and making available for inspection
and copying the documents or other evidentiary material, not privileged
or protected from disclosure, on which such computation is based.
(4)
any insurance agreement which may be used to satisfy part or all
of a judgment which may be entered in the action.
(b)
Disclosure of Expert Testimony. A party shall disclose to other
parties the identity of any person who may be used at trial to present
expert testimony, and;
(1)
With respect to a witness who is retained or specially employed
to provide expert testimony, this disclosure shall be accompanied
by a written report prepared and signed by the witness, containing
a complete statement of all opinions to be expressed and the basis
and reasons therefore the data and other information considered
by the witness in forming the opinions; any exhibits to be used
to summarize or in support of the opinions; the qualifications of
the witness; the compensation to be paid for the study and testimony;
and a list of any other cases in which the witness testified as
an expert.
(2)
These disclosures shall be made at the times and in the sequence
directed by the court.
[See Tribal
case law for precedent. FRCP 26(b) may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(c) Pretrial
Disclosure. a party shall provide to the other parties the following
information regarding the evidence that it may present at trial:
(1)
the name, address, and telephone number of each witness; separately
identifying those which the party expects to present and those which
the party may call if the need arises;
(2)
the designation of those witnesses whose testimony is expected to
be presented by means of a deposition, and a transcript of the pertinent
portions of the deposition testimony;
(3)
an appropriate identification of each document or other exhibit,
including summaries of other evidence, separately identifying those
which the party expects to offer and those which the party may offer
if the need arises.
(d) Form
of disclosure; filing. All disclosures under this subsection shall
be made in writing, signed, served and promptly filed with the court.
(e) Signing.
Every initial or pretrial disclosure made pursuant to (a)(1) or (a)(3)
shall be signed by the party, spokesperson or attorney of record.
The signature constitutes a certification that to the best of the
signers knowledge, information, and belief formed after a reasonable
inquiry, the disclosure is complete and correct as of the time it
is made.
Discovery
2.4.10 Discovery Defined
In general,
parties may obtain discovery of any matter, not privileged, which is
relevant to the subject matter involved in the pending action, including
the existence, description, nature, custody, condition, and location
of any books, documents, or other tangible things and the identity and
location of persons having knowledge of any discoverable matter. The
information need not be admissible at trial if the information sought
appears reasonably calculated to lead to the discovery of admissible
evidence.
2.4.11 Methods to Discover Additional Matter
Parties
may obtain discovery by one or more of the following methods: depositions
upon oral examination or written questions; written interrogatories;
production of documents or things or permission to enter upon land or
other property for inspection and other purposes; physical and mental
examinations; and requests for admission.
2.4.12 Timing and Sequence of Discovery
A party
may not seek discovery from any source before the parties have met and
conferred as required by subsection 2.4.7 Unless the court upon motion,
for the convenience of the parties and witnesses and in the interests
of justice, orders otherwise, methods of discovery may be used in any
sequence, and the fact that a party is conducting discovery, whether
by deposition or otherwise, shall not operate to delay another partys
discovery.
2.4.13 Depositions Upon Oral Examination
A person
who desires to perpetuate testimony regarding any matter within the
scope of subsection 2.4.8 may take the testimony of any person, including
a party:
(a) Without
Leave of Court. A person may take testimony without leave of court.
The party desiring to take the deposition upon any person shall give
at least 10 days notice in writing Approved April 11, 2005 20 to every
other party to the action. The notice shall state the time and place
for taking the deposition and the name and address of each person
to be examined.
(1)
Content of Notice. The deposition of notice shall state all of the
following:
(a)
the address where the deposition will be taken;
(b)
the date of the deposition, and the time it will commence;
(c)
the name of each deponent, and the address and telephone number
if known, of any deponent who is not a party to the action. If
the name of the deponent is not known, the deposition notice shall
set forth instead a general description sufficient to identify
the person or particular class to which the person belongs;
(d)
the specification with reasonable particularity of any materials
or category of materials to be produced by the deponent; and
(e)
any intention to record the testimony by audio tape or video tape,
in addition to recording the testimony by the stenographic method
as required by this section.
(2)
Scheduling of Deposition. An oral deposition shall be scheduled
for a date at least ten (10) days after service of the deposition
notice. If, the party giving notice of the deposition is a subpoenaing
party, and the deponent is a witness commanded by deposition subpoena
to produce personal records of a consumer, the deposition shall
be scheduled for a date at least twenty (20) days after issuance
of that subpoena.
(b) By
Order of Court. A person may file a motion seeking an order authorizing
the petitioner to take the depositions of the persons to be examined.
The petition shall contain the names of the persons to be examined,
the facts that the petitioner desires to establish, and the substance
of the testimony that the petitioner expects to elicit.
(1)
The moving party shall then serve a notice upon each person named
in the motion and all other parties to the action, along with a
copy of the motion for the order described in the motion. A notice
by a party deponent may be accompanied by a request for the production
of documents and tangible things at the taking of the deposition.
If a subpoena duces tecum is to be served on the person to be examined,
the designation of the materials to be produced as set forth in
the subpoena shall be attached to or included in the notice. The
notice shall state the method by which the testimony shall be recorded.
The notice shall be served in the manner provided in subsection
2.3.04, for service of summons.
(c) A
deposition shall be conducted by an officer of the court designated
under subsection 2.4.16, and shall begin with the statement on the
record (a) the officers name and address; (b) the date, time,
and place of the deposition; (c) the name of the deponent; (d) the
administration of the oath or affirmation of the deponent; and (e)
an identification of all persons present. The appearance or demeanor
of deponents shall not be distorted through camera or sound-recording
techniques. At the end of the deposition, the officer shall state
on the record that the deposition is complete and shall set forth
any stipulations made by counsel concerning the custody of the transcript
or recording and the exhibits, or concerning other pertinent matters.
[See Tribal
case law for precedent. FRCP 30 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(d) A
party may in the partys notice and subpoena name as the deponent
a public or private corporation, or a partnership or association,
or a Tribal agency and describe with reasonable particularity the
matters on which examination is requested. In that event, the organization
so named shall designate one or more officers, directors, or managing
agents, or other persons who consent to testify on its behalf, and
may set forth, for each person designated, the matters on which the
person will testify.
(e) Examination
and Cross-examination; Record and Oath; Objections. Examination
and cross-examination of witnesses are to be in accordance with Chapter
5, Rules of Evidence. The officer before whom the deposition is to
be taken shall put the witness on oath or affirmation and shall record
the testimony of the witness. All objections made at the time of the
examination shall be noted by the officer upon the record of the deposition;
but the examination shall proceed, with the testimony being taken
subject to the objections. In lieu of participating in the oral examination,
parties may serve written questions in a sealed envelope to the party
taking the deposition and the party shall transmit them to the officer
who shall propound them to the witness and record the answers verbatim.
(f) Any
party may arrange for a transcription to be made from the recording
of a deposition. The additional record or transcript shall be made
at that partys expense unless the court orders otherwise.
(g) Submission
to witness; changes; signing. When the testimony is fully transcribed
the deposition shall be submitted to the witness for examination and
shall be read to or by him, unless such examination and reading are
waived by the witness and by the parties. Any changes in form or substance
which the witness desires to make shall be entered upon the deposition
by the officer with a statement of the reasons given by the witness
for making them. The deposition shall then be signed by the witness,
unless the parties by stipulation waive the signing or the witness
is ill or cannot be found or refuses to sign. If the deposition is
not signed by the witness within 30 days of its submission to him,
the officer shall sign it and state on the record the fact of the
waiver or of the illness or absence of the witness or the fact of
the refusal to sign together with the reason, if any, given therefore;
and the deposition may then be used as fully as though signed unless
on a motion to suppress unless the court holds that the reasons given
for the refusal to sign require rejection of the deposition in whole
or in part.
(h) Certification
and filing by officer; exhibits; copies; notice of filing; preservation
of notes and tapes of depositions.
(1)
The officer shall certify on the deposition that the witness was
duly sworn by him and that the deposition is a true record of the
testimony given by the witness. He shall then securely seal the
deposition in an envelope endorsed with the title of the action
and marked Deposition of [here insert name of witness]
and shall promptly file it with the Tribal Court.
Documents
and things produced for inspection during the examination of the witness,
shall, upon the request of a party, be marked for identification and
annexed to and returned with the deposition, and may be inspected
and copied by any party, except that (a) the person producing the
materials may substitute copies to be marked for identification, if
he affords to all parties fair opportunity to verify the copies by
comparison with the originals, and (b) if the person producing the
materials requests their return, the officer shall mark them, give
each party an opportunity to inspect and copy them, and return them
to the person producing them, and the materials may then be used in
the same manner as if annexed to and returned with the deposition.
Any party may move for an order that the original be annexed to and
returned with the deposition to the court, pending final disposition
of the case.
(2)
Upon payment of reasonable charges therefore, the officer shall
furnish a copy of the deposition to any party or to the deponent.
(3)
The party taking the deposition shall give prompt notice of its
filing to all other parties.
(4)
The officer shall preserve and retain for period of 10 years all
original notes and stenographic tapes taken or recorded by him during
deposition, which shall be retained by the officer in such place
and manner as to ensure their availability to the court or any party
upon request.
2.4.14 Depositions Upon Written Questions
A party
may take the testimony of any person, including a party, by deposition
upon written questions without leave of court, or by leave of court.
The attendance of witnesses may be compelled by the use if subpoena
provided in subsection 2.4.22. A party desiring to take a deposition
upon written questions shall serve them upon every other party with
a notice stating the name and address of the person who is to answer
them. Within 14 days after the notice and written questions are served,
a party may serve cross questions upon all other parties. The court
may for cause shown enlarge the time.
[See Tribal
case law for precedent. FRCP 31 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(a) A
copy of the notice and copies of all questions served shall be delivered
by the party taking the deposition to the officer designated in the
notice, who shall take the testimony of the witness in response to
the questions and to prepare, certify, and file or mail the deposition,
attached thereto the copy of the notice and the questions received
by the officer.
(b) When
the deposition is filed the party taking it shall promptly give notice
thereof to all other parties.
2.4.15 Use of Depositions in Court Proceedings
Any deposition
may be used by any party for the purpose of contradicting or impeaching
the testimony of the deponent as a witness, or for any purpose permitted
under Chapter 5, Rules of Evidence.
(a) The
deposition may be used by any party for any purpose if the court finds:
(1)
that the witness is dead; or
(2)
that the witness is not residing or domiciled within the exterior
boundaries of the Hoopa Valley Indian Reservation and cannot be
compelled to appear, unless it appears that the absence of the witness
was procured by the party offering the deposition; or
(3)
that the party is unable to testify because of age, illness, infirmity,
or imprisonment; or
(4)
that the party offering the deposition has been unable to procure
the attendance of the witness by subpoena; or
(5)
upon application and notice that such exceptional circumstance exist
as to make it desirable, in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be used.
[See Tribal
case law for precedent. FRCP 32 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.4.16 Persons Before Whom Depositions May Be Taken
Depositions
shall be taken before a person appointed by the court. A person so appointed
shall be an officer of the court having power to administer oaths and
take testimony. No deposition shall be taken before a person who is
a relative or employee or attorney or counsel of any of the parties,
or is a relative or employee of such attorney or counsel, or is financially
interested in the action.
[See Tribal
case law for precedent. FRCP 28 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.4.17 Stipulations Regarding Discovery Procedure
Unless
otherwise directed by the court, the parties may by written stipulation
(1) provide that depositions may be taken before any person, at any
time or place, upon any notice, and in any manner and when so taken
may be used like other depositions, and (2) modify other procedures
governing or limitations placed upon discovery, except that stipulations
extending the time for responses to discovery may, if they would interfere
with any time set for completion of discovery, for hearing of a motion,
or for trial, be made only with the approval of the court.
[See Tribal
case law for precedent. FRCP 29 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.4.18 Interrogatories
Any party
may serve upon any other party written interrogatories not exceeding
25 in number to be answered by the party served, or if the party served
is a tribal entity, or a public or private corporation or a partnership
or association, by officer or agent, who shall furnish such information
as is available to the party.
[See Tribal
case law for precedent. FRCP 33 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.4.19 Supplementation of Disclosures and Responses
A party
who has made a disclosure or responded to a request for discovery with
a disclosure or response is under a duty to supplement or correct the
disclosure or response if the party learns that in some material respect
the information disclosed is incomplete or incorrect and if such information
has not otherwise been made known to the other parties during the discovery
process.
[See Tribal
case law for precedent. FRCP 26(e) may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.4.20 Limits to Discovery
The court
may limit the number of depositions and interrogatories and the number
of requests if it determines that the discovery sought is unreasonably
cumulative, or duplicative, or is obtainable from some other source
that is more convenient, less burdensome or less expensive; the party
seeking discovery has had ample opportunity by discovery in the action
to obtain the information sought; or the burden or expense of the proposed
discovery outweighs its likely benefit. The court may act on its own
initiative after reasonable notice or pursuant to a motion.
[See Tribal
case law for precedent. FRCP 26(b)(2) may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(a) Trial
Preparation; Materials. A party may obtain discovery of documents
and tangible things prepared in anticipation of litigation or for
trial by or for another party only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation
of the partys case and that the party is unable
(b) Trial
Preparation: Experts. A party may depose any person identified
as an expert whose opinions may be presented at trial.
(1)
A party may, through interrogatories or by deposition, discover
facts known or opinions held by an expert who has been retained
or specially employed by another party in anticipation of litigation
or preparation for trial and who is not expected to be called as
a witness or upon showing of exceptional circumstances under which
it is impracticable for the party seeking discovery to obtain facts
or opinions on the same subject by other means.
(2)
Unless manifest injustice would result the court shall require that
a party seeking discovery pay the expert a reasonable fee for time
spent in responding to discovery under this subsection and pay to
the other party a fair portion of the fees and expenses reasonably
incurred by the latter party in obtaining facts and opinions from
the expert.
(c) Claims
of Privilege. When a party withholds information otherwise discoverable
under these rules by claiming that it is privileged or subject to
protection as trial preparation material, the party shall make the
claim expressly and shall describe the nature of the documents, communications,
or things not produced or disclosed in a manner that, without revealing
information itself privileged or protected, will enable other parties
to assess the applicability of the privilege or protection.
(d) Protective
Orders. Upon motion by a party or by the person from whom discovery
is sought, and for good cause shown, the Court on matters relating
to a deposition may make an order which justice requires to protect
a party from annoyance, embarrassment, oppression, or undue burden
or expense. The order shall include one or more of the following:
(1) that the disclosure or discovery not be had, (2) that the disclosure
or discovery may be had under specified terms and conditions including
a designation of time and place, (3) that the disclosure or discovery
be limited to a certain method and/or to certain matters.
[See Tribal
case law for precedent. FRCP 26(c) may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.4.21 Production of Documents/Entry Upon Land for Inspection
Any party
may serve on any other party a request:
(a) to
produce or to permit inspection of any designated documents which
contain matters within the scope of subsection 2.4.8, and which are
in the custody or control of the party upon whom the request is served;
(b) to
permit entry upon designated land or other property in the possession
or control of the party being served for the purpose of inspection
.
[See Tribal
case law for precedent. FRCP 34 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(1)
the request shall set forth the items or property to be inspected.
The request shall specify a reasonable time, place, and manner of
making the inspection.
(2)
The party upon whom the request is served shall serve a written
response within 30 days after the service of the request. The court
may allow a shorter or longer time.
The response
shall state, with respect to each item or category, that inspection,
production and related activities will be permitted as requested, unless
the request is objected to, in which event the reasons for objection
shall be stated. If objection is made to part of an item or category,
the part shall be specified. The party submitting the request may move
for an order under with respect to any objection to or other failure
to respond to the request or any part thereof, or any failure to permit
inspection or production as requested.
2.4.22 Physical and Mental Examination
When the
mental or physical condition of a party or person is in controversy,
the Court may order the party to submit to a physical or mental examination
by a suitably licensed or certified examiner.
[See Tribal
case law for precedent. FRCP 35 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.4.23 Request for Admission
A party
may serve upon any other party a written request for the admission of
the truth of any matters of the pending action [that relate to statements
or opinions of fact or of the application of law to fact,] including
the genuineness of any documents described in the request.
(a) Each
matter of which an admission is requested shall be separately set
forth. The matter is admitted unless, within 30 days after service
of the request, or within such shorter or longer time as the court
may allow, the party to whom the request is directed serves upon the
party requesting the admission a written answer or objection addressed
to the matter, signed by the party or by his counsel. If objection
is made, the reasons therefore shall be stated. The answer shall specifically
deny the matter or set forth in detail the reasons why the answering
party cannot truthfully admit or deny the matter. A denial shall fairly
meet the substance of the requested admission, and when good faith
requires that a party qualify his answer or deny only a part of the
matter of which an admission is requested, he shall specify so much
of it as is true and qualify or deny the remainder. An answering party
may not give lack of information or knowledge as a reason for failure
to admit or deny unless he states that he has made reasonable inquiry
and that the information known or readily obtainable by him is insufficient
to enable him to admit or deny. A party who considers that a matter
of which an admission has been requested presents a genuine issue
for trial may not, on that ground alone, object to the request; he
may, subject to the provisions of this title regarding sanctions,
deny the matter or set forth reasons why he cannot admit or deny it.
The party
who has requested the admissions may move to determine the sufficiency
of the answers or objection. Unless the court determines that an objection
is justifies, it shall order that an answer be served. If the court
determines that an answer does not comply with the requirements of
this Rule, it may order either that the matter is admitted or that
an amended answer be served. The court may, in lieu of these orders,
determine that final disposition of the request be made at a pre-trial
conference or at a designated time prior to trial. The provisions
of Rule 2.4.24 apply to the award of expenses incurred in relation
to the motion.
(b) Failure
to Respond. Should the responding party fail to respond within the
time periods specified in Section A above, all requested information
is deemed admitted and the requesting party is not required to move
the Court for an order deeming the requested material admitted.
(c) Effect
of admission. Any matter admitted under this rule is conclusively
established unless the court on motion permits withdrawal or amendment
of the admission. Subject to the provisions governing amendment of
a pretrial order, the court may permit withdrawal or amendment when
the presentation of the merits of the action will be promoted thereby
and the party who obtained the admission fails to satisfy the court
that withdrawal or amendment will prejudice him in maintaining his
action or defense on the merits. Any admission made by a party under
this rule is for the purpose of the pending action only and is not
an admission by him for any other purpose nor may it be used against
him in any other proceeding.
[See Tribal
case law for precedent. FRCP 36 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.4.24 Failure to Cooperate in Discovery: Sanctions
If a deponent
fails to be sworn or to answer a question after being directed to do
so by the Court, the failure may be considered a contempt of court.
(a) Motion
for order compelling discovery. A party, upon reasonable notice to
other parties and all persons affected thereby, may apply for an order
compelling discovery as follows:
(1)
Motion. If a deponent fails to answer a question propounded or submitted
pursuant to this Title or a corporation or other entity fails to
make a designation under this Title or a party fails to answer an
interrogatory submitted under this Title, or if a party, in response
to a request for inspection submitted under this Title, fails to
respond that inspection will be permitted as requested or fails
to permit inspection as requested, the discovering party may move
for an order compelling an answer, or a designation, or an order
compelling inspection in accordance with the request. When taking
a deposition on oral examination, the proponent of the question
may complete or adjourn the examination before he applies for an
order.
If
the court denies the motion in whole or in part, it may make such
protective order as it would have been empowered to make on a motion
made pursuant to this Title.
(2)
Evasive or incomplete answer. For purposes of this subdivision an
evasive or incomplete answer is to be treated as a failure to answer.
(3)
Award of expenses of motion. If the motion is granted, the court
shall, after opportunity for hearing, require the party or deponent
whose conduct necessitated the motion or the party or counsel advising
such conduct or both of them to pay to the moving party the reasonable
expenses incurred in obtaining the order, including counsel fees,
unless the court finds that the opposition to the motion was substantially
justified or that other circumstances make an award of expenses
unjust.
If
the motion is denied, the court shall, after opportunity for hearing,
require the moving party or the counsel advising the motion or both
of them to pay to the party or deponent who opposed the motion the
reasonable expenses incurred in opposing the motion, including counsel
fees, unless the court finds that the making of the motion was substantially
justified or that other circumstances make an award of expenses
unjust.
If
the motion is granted in part and denied in part, the court may
apportion the reasonable expenses incurred in relation to the motion
among the parties and persons in a just manner.
(b) Failure
to comply with order.
(1)
Sanctions by court. If a deponent fails to be sworn or to answer
a question after being directed to do so by the court, the failure
may be considered a contempt of court.
(2)
Sanctions by court. If a party or an officer, director, or managing
agent of party or a person designated to testify on behalf of a
party fails to obey an order to provide or permit discovery, including
an order made under subdivision A of this rule the court may make
such orders in regard to the failure as are just, and among others
the following:
(a)
An order that the matters regarding which the order was made or
any other designated facts shall be taken to be established for
the purposes of the action in accordance with the claim of the
party obtaining the order;
(b)
An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting him from
introducing matters in evidence.
(c)
An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action
or proceeding or any part thereof, or rendering a judgment by
default against the disobedient party;
(d)
In lieu of any of the foregoing orders or in addition thereto,
an order treating as a contempt of court the failure to obey any
orders except an order to submit to a physical or mental examination;
(e)
Where a party has failed to comply with an order under this Title
requiring him to produce another for examination, such orders
as are listed in paragraph (a), (b), and (c) of this subdivision,
unless the party failing to comply shows that he is unable to
produce such person for examination.
In
lieu of any of the foregoing orders or in addition thereto, the
court shall require the party failing to obey the order or the counsel
advising him or both to pay the reasonable expenses, including counsel
fees, caused by the failure, unless the court finds that the failure
was substantially justified or that other circumstances make an
award of expenses unjust.
(c)
Expenses on failure to admit. If a party fails to admit the genuineness
of any document or the truth of any matter as requested under this
Title, and if the party requesting the admission thereafter proves
the genuineness of the document or the truth of the matter, he may
apply to the court for an order requiring the other party to pay him
the reasonable expenses incurred in making that proof, including reasonable
counsel fees. The court shall make the order unless it finds that
(1) the request was held objectionable pursuant to section __, or
(2) the admission sought was of no substantial importance, or (3)
the party failing to admit had reasonable ground to believe that he
might prevail on the matter, or (4) there was other good reason for
the failure to admit.
(d) Failure
of party to attend at own deposition or serve answers to interrogatories
or respond to request for inspection. If a party or an officer, director,
or managing agent of a party or a person designated to testify on
behalf of a party fails (1) to appear before the officer who is to
take his deposition, after being served with a proper notice, or (2)
to serve answers or objections to interrogatories, after proper service
of the interrogatories, or (3) to serve a written response to a request
for inspection submitted under this Title, after proper service of
the request, the court on motion may make such orders in regard to
the failure as are just, and among others it may take any action authorized
under paragraphs (a), (b), and (c) of subdivision B(2) of this rule.
In lieu of any order or in addition thereto, the court shall require
the party failing to act or the counsel advising him or both to pay
the reasonable expenses, including counsel fees, caused by the failure,
unless the court finds that the failure was substantially justified
or that other circumstances make an award of expenses unjust.
The failure
to act described in this subdivision may not be excused on the ground
that the discovery sought is objectionable unless the party failing
to act has applied for a protective order as provide by section.
[See Tribal
case law for precedent. FRCP 37 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.4.25 Enforcement Proceedings
In enforcement
proceedings initiated by the Hoopa Valley Tribe, the defendant is entitled
to be given copies of all relevant police reports at least five (5)
days prior to the date of first court appearance by mailing of such
documents to said defendant from the Tribe. The Tribe's representative
may request a protective order. The defendant and Tribe's representative
shall exhaust all settlement possibilities prior to invoking the participation
of the Court in discovery matters.
(a) In
enforcement proceedings initiated by the Hoopa Valley Tribe, at least
five (5) days prior to trial, the prosecutor shall notify the defendant
of the names of persons who will testify. Others may testify at the
date of the trial only upon a showing of good cause.
Witnesses; Subpoenas
2.4.26 Compelling Witnesses to Appear
Any party
shall have the right to compel witnesses to appear in Court to testify
on his or her behalf.
2.4.27 Subpoenas to Compel Appearance of Witnesses
A judge
of the Tribal Court shall issue subpoenas for the attendance of witnesses
at a trial or hearing, or at a deposition, for good cause shown, either
on his/her own motion or on the request of the police chief or officer
or any of the parties. The subpoena shall bear the signature of the
issuing judge. Failure to obey such subpoena shall be deemed an offense
as provided in this Code. Service of such subpoena shall be by a regularly
acting member of the Tribal Police or by a person duly authorized by
the Court for that purpose.
(a) Contents.
Every subpoena shall state the name of the Hoopa Valley Tribal Court;
the title of the action and its civil action number; and command
each person to whom it is directed to attend and give testimony or
to produce and permit inspection an and copying of designated books
or documents or tangible things in the possession, custody or control
of that person, or to permit the inspection of the premises, at a
time and place therein specified. A command to produce evidence or
permit inspection may be joined with a command to appear at trial
or hearing or at deposition, or may be issued separately.
(b) Service.
All subpoenas shall be served by enforcement personnel except upon
order of the Court. Personal service is preferred. In the event personal
service is not possible, a copy shall be left at his/her residence
or principal place of business in the care of a person of at least
fourteen (14) years of age. The service fee is to be paid by the party
requesting service and may be recovered as a cost of litigation.
(c) Proof
of Service. A Proof of Service shall be filed with the Court specifying
the person served, and the date, place, and manner of service.
(d) Failure
to Appear; Contempt. Failure to appear after being properly served
with a subpoena is punishable as a contempt of Court pursuant to Title
3, Rule 21.
(e) Fees.
Each witness answering such subpoena shall be entitled to a fee of
$15.00 a day for each day his/her services are required in Court,
plus twenty (20) cents per mile for travel to and from the Court.
The fees and expenses of witnesses in civil actions shall be paid
by the party calling them. When expenses are to be paid by the Tribal
Court, prior approval must be given before the expenses are incurred.
2.4.28 Subpoenas
A judge
of the Tribal Court shall issue subpoenas for the attendance of witnesses
wither on his/her own motion or on the request of the police chief or
officer or any of the parties. The subpoena shall bear signature of
the issuing Judge. Failure to obey such subpoena shall be deemed an
offense as provided in this Code. Service of such subpoena shall be
by a regularly acting member of the Tribal Police or by a person duly
appointed by the Court for that purpose.
Chapter 5: Rules of Evidence
Hearsay; Witnesses Testimony; Presenting Evidence; Rulings on Evidence
2.5.01 Relevance
All evidence
that is relevant is admissible. Evidence which is not relevant is not
admissible. Relevant evidence means evidence having a tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without
the evidence. Evidence is relevant if it has a tendency to prove or
disprove a material issue in dispute.
[See Tribal
case law for precedent. FRE 401 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.02 Personal Knowledge
A witness
is only permitted to testify to matters within his or her personal knowledge.
This means that the witness must have personally observed the matter
and must have a present recollection of his or her observation.
[See Tribal
case law for precedent. FRE 602 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.03 Lay Opinion
Lay opinion
s admissible only where it is based on the perception of the witness
and where it is likely to help the finder of fact determine a fact in
issue. In general, a lay witness may testify as to the general appearance
and condition of a person.
[See Tribal
case law for precedent. FRE 701 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.04 Unfair Prejudice
The Court
has the discretion to exclude relevant evidence if its probative value
is substantially outweighed by the danger of unfair prejudice. Evidence
is excludable if it is inflammatory, will result in confusion of the
issues, will result in misleading the finder of fact, is cumulative
and an undue consumption of time.
[See Tribal
case law for precedent. FRE 403 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.05 Character Evidence
Character
evidence is inadmissible in a civil suit unless character is directly
at issue (e.g., defamation). Character evidence may be offered as substantive
evidence to prove character when it is the ultimate issue in the case,
or serve as circumstantial evidence of how the person probably acted.
[See Tribal
case law for precedent. FRE 404 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.06 Proof of Character
Proof of
character is made by testimony as to reputation or by testimony in the
form of an opinion. On cross-examination, inquiry is allowable into
relevant specific instances of conduct. In cases in which character
or a trait of character of a person is an essential element of a charge,
claim, or defense, proof may also be made of specific instances of that
persons conduct.
[See Tribal
case law for precedent. FRE 405 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.07 Evidence of Habit
Evidence
of the habit of a person or the routine of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses,
is relevant to prove that the conduct of the person or organization
on a particular occasion was in conformity with the habit or routine
practice.
[See Tribal
case law for precedent. FRE 406 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.08 Subsequent Remedial Measures, Compromise, Offers, Liability
Insurance
Evidence
of subsequent remedial measures, of compromise and offers of compromise,
of offers or promises to pay medical expenses occasioned by an injury,
or liability insurance, is not admissible to prove liability or invalidity
of the claim or its amount, or whether the person acted negligently
or otherwise wrongfully. This rule does not require the exclusion of
such evidence if offered for another purpose.
[See Tribal
case law for precedent. FRE 407; 408; 409, may be looked to, and cases
pertaining to this rule may be cited to as persuasive argument]
2.5.09 Inadmissibility of Pleas, Offers, and Related Statements
Evidence
of a plea of guilty, or a plea of nolo contendre, or of an offer to
plead guilty or nolo contendre to a crime charged or any other crime
or any statements made in connection with, or relevant to, any of the
foregoing pleas or offers, is not admissible in any civil or criminal
proceeding against the person who made the plea or offer.
[See Tribal
case law for precedent. FRE 410 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.10 Authentication and Identification
The requirement
of authentication or identification of a document as a condition precedent
to admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims. The testimony
of a subscribing witness is not necessary to authenticate a writing.
Extrinsic evidence of authenticity is not required with respect to:
(a) A
document bearing the seal purporting to be that of the Hoopa Valley
Tribe, the United States, or any other State, territory or possession
of the United States, or any other political subdivision, department,
or agency thereof, and a signature purporting to be an attestation
or execution.
(b) A
document purporting to bear the signature in the official capacity
of an officer or employee of any entity included in paragraph (a)
hereof, having no seal, if a public officer having a seal and having
official duties certifies under seal that the signer has the official
capacity and that the signature is genuine.
(c) A
copy of an official record or report, or of a document authorized
by law to be recorded and filed which has been actually recorded and
filed.
(d) Books,
pamphlets, or other publications purported to be issued by public
authority; printed material purporting to be newspapers or periodicals;
documents acknowledged
[See Tribal
case law for precedent. FRE 902 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.11 Requirement of Original
To prove
the content of a writing, recording, or photograph, the original writing,
recording, or photograph is required.
(a) A
duplicate is admissible to the same extent as an original unless (1)
a genuine question is raised as to the authenticity of the original
or (2) in the circumstances it would be unfair to admit the duplicate
in lieu of the original.
(b) The
original is not required if the original is lost or destroyed, unless
the proponent lost or destroyed them in bad faith; or no original
can be obtained by any available judicial process or proceeding; or
the original is under the control of the party against whom offered
and that party has been put on notice that the contents would be subject
of proof at the hearing, and the party does not produce the original
at the hearing.
(c)
The contents of an official record or of a document authorized to
be recorded of filed and actually recorded of filed, may be proved
by copy, certified as correct or testified to be correct by a witness
who has compared it with the original.
Hearsay
2.5.12 Hearsay
Hearsay
is a statement, other than one made by the declarant while testifying
at the trial or hearing (an out of court statement), offered in evidence
to prove the truth of the matter asserted. Hearsay is inadmissible unless
there is an exception to the rule that allows the statement in.
[See Tribal
case law for precedent. FRE 801 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(a)
Non-hearsay; Admissions. The following statements are not hearsay
and are admissible.
(1)
Admissions by a Party Opponent: The statement offered against
a party and is (A) the partys own statement, in either an
individual or a representative capacity, or
(2)
Judicial and Extrajudicial Admissions: The declarant testifies
at the trial or hearing and is subject to cross-examination;
(3)
Adoptive Admissions: a statement of which the party has manifested
an adoption of belief or truth;
(4)
Vicarious Admissions: a statement by a person authorized
by the party to make a statement concerning the subject, or a statement
by the partys agent or servant concerning a matter within
the scope of the agency or employment, made during the existence
of the relationship, or a statement by a coconspirator of a party
during the course and in furtherance of the conspiracy.
(b) Reliability
Exceptions. The Declarant need not be available at trial for admission
of the following hearsay exceptions.
[See Tribal
case law for precedent. FRE 803 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(1)
Present State of Mind: A statement of the declarants
then existing state of mind, emotion, sensation, or physical condition.
Except to certain facts concerning the declarants will, however,
statements of memory or belief are not admissible to prove the truth
of the fact remembered of believed.
(2)
Excited Utterance: A statement relating to a startling event
or condition made while the declarant was under the stress of excitement
caused by the event or condition.
(3)
Present Sense Impression: A statement describing or explaining
an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter.
(4)
Then existing Mental, Emotional, or Physical Condition: A
statement of the declarants then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including
a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification,
or terms of declarants will.
(c) Unavailability
Exceptions. The Declarant must be unavailable to testify at trial
for the following exceptions to be admissible.
[See Tribal
case law for precedent. FRE 804 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(1)
Declaration Against Interest: A statement which was at the
time of its making so far contrary to the declarant's pecuniary
to proprietary interest, or so far tended to subject the declarant
to civil or criminal liability, or to render invalid a claim by
the declarant against another, that a reasonable person in the declarants
position would not have made the statement unless believing it to
be true. A statement tending to expose the defendant to criminal
liability and offered to exculpate the accused is not admissible
unless corroborating circumstances clearly indicate the trustworthiness
of the statement.
(2)
Dying Declaration: A statement made by a declarant while
believing that the declarants death was imminent, concerning
the cause and circumstances of what the declarant believed to be
impending death.
(3)
Former Testimony: Testimony given by a witness at another
hearing of the same or a different proceeding, or in a deposition
taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered,
or, in a civil action or proceeding, a predecessor in interest,
had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.
(4)
Statements of Personal or Family History: A statement concerning
the declarants own birth, adoption, marriage, divorce, legitimacy,
relationship by blood, adoption, or marriage, ancestry, or other
similar fact of personal or family history, even though declarant
had no means of acquiring personal knowledge of the matter stated;
or (B) a statement concerning the foregoing matters, and death also,
of another person, if the declarant was related to the other by
blood, adoption or marriage or was intimately associated with the
others family to be likely to have accurate information concerning
the matter declared.
(d) Document
Exceptions. The Declarant need not be available at trial for admission
of the following hearsay exceptions.
[See Tribal
case law for precedent. FRE 803 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(1)
Recorded Recollection: A memorandum or record concerning
a matter about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately,
shown to have been made or adopted by the witness when the matter
was fresh in the witness memory and to reflect that knowledge
correctly. If admitted, the memorandum or record may be read into
evidence but may not itself be received as an exhibit unless offered
by an adverse party.
(2)
Business Records; Official Records; Ancient Documents; Learned
Treatises:
(A)
A writing made in the regular course of business; (B) public records
and reports of any form, of public or tribal offices or agencies,
birth records, deaths, marriages; (C) statements in a document
in existence twenty years or more the authenticity of which is
established; (D) statements contained in published treatises,
periodicals, or pamphlets on a subject of history, medicine, or
other science or art, established as a reliable authority by the
testimony or admission of the witness or by expert testimony or
judicial notice
[See Tribal
case law for precedent. FRE 803 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(e) Other
exceptions. A statement not specifically covered by any of the
foregoing exceptions is admissible if it is necessary and has the
requisite indices of trustworthiness such that it should be allowed
in.
[See Tribal
case law for precedent. FRE 803 (24; 804(5), may be looked to, and cases
pertaining to this rule may be cited to as persuasive argument]
Witnesses Testimony
2.5.13 Oath
Before
testifying, every witness shall be required to declare that the witness
will testify truthfully, by oath or affirmation administered by the
Court
[See Tribal
case law for precedent. FRE 603 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.14 Preliminary Questions:
(a)
Questions of Admissibility generally. Preliminary questions
concerning the qualification of a person to be a witness, the existence
of a privilege, or the admissibility of evidence shall be determined
by the court, subject to the provisions of subdivision (b). In making
its determination the court is not bound by the rules of evidence
except those with respect to privileges. Approved April 11, 2005 37
(b) Relevancy
Conditioned on Fact. When the relevancy of evidence depends upon
the fulfillment of a condition of fact, the court shall admit it upon,
or subject to, the introduction of evidence sufficient to support
a finding of the fulfillment of the condition.
(c) Hearing
of Jury. Hearings on the admissibility of confessions shall be
conducted out of the hearing of the jury. Hearings on other preliminary
matters shall be so conducted when the interests of justice require
or when an accused is a witness and so requests.
(d) Testimony
by Accused. The accused does not, by testifying upon a preliminary
matter, become subject to cross-examination as to other issues in
the case.
[See Tribal
case law for precedent. FRE 104 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(e) Weight
and Credibility. This rule does not limit the right of a party
to introduce before the trier of fact evidence relevant to weight
and credibility.
[See Tribal
case law for precedent. FRE 104 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.15 Limited Admissibility
When evidence
which is admissible as to one party or for one purpose but not admissible
as to another party or for another purpose is admitted, the court, upon
request, shall restrict the evidence to its proper scope and, if seated,
instruct the jury accordingly.
[See Tribal
case law for precedent. FRE 105 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(a) When
a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require the introduction at that time
of any other part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously with it.
[See Tribal
case law for precedent. FRE 106 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.16 Judicial Notice of Adjudicative Facts
A judicially
noticed fact must be one not subject to reasonable dispute in that it
is either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.
(a) The
Court may take judicial notice of an adjudicative fact whether requested
or not. The Court shall take judicial notice if requested by a party
and supplied with the necessary information. Judicial notice may be
taken at any stage of the proceeding. In a civil action or proceeding,
the Court shall instruct a jury, if seated, to accept any fact judicially
noticed.
(b)
A party is entitled upon timely request to an opportunity to be heard
as to the propriety of taking judicial notice of an adjudicative fact
and the tenor of the matter noticed. In the absence of prior notification,
the request may be made after judicial notice has been taken.
[See Tribal
case law for precedent. FRE 201 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.17 Competency of Judge; Juror as Witness
The judge
presiding at the trial may not testify in that trial as a witness. A
member of the jury may not testify as a witness, and may not testify
as to any matter or statement during the course of the jurys deliberations
or to any other jurors mind or emotions concerning the jurors
mental processes in connection therewith, as influencing the juror to
assent to or dissent from the verdict. A juror may testify on the question
whether extraneous prejudicial information was properly brought to the
jurys attention or whether any outside influence was improperly
brought to bear upon any juror.
[See Tribal
case law for precedent. FRE 605; 606, may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
Presenting Evidence
2.5.18 Mode and Order of Interrogation and Presentation
(a) Control
of Court. The court shall exercise reasonable control over the
mode and order of questioning witnesses and presenting evidence so
as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time,
and (3) protect witnesses from harassment or undue embarrassment.
[See Tribal
case law for precedent. FRE 611 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(b) Scope
of Cross-Examination. Cross-examination should be limited to the
subject matter of the direct examination and matters affecting the
credibility of the witness. The court may in the exercise of discretion,
permit inquiry into the additional matters as if on direct examination.
(c) Leading
Questions. Leading questions should not be used on the direct
examination of witnesses except as may be necessary to develop the
witness testimony. Ordinarily leading questions should be permitted
on cross-examination. When a party calls a hostile witness, an adverse
party, or a witness identified with an adverse party, interrogation
may be by leading questions.
2.5.19 Calling and Interrogation of Witnesses
(a) Calling
by Court. The court may, on its own motion or at the suggestion of a
party, call witnesses, and all parties are entitled to cross-examine
witnesses thus called.
(b) Interrogation
by Court. The court may interrogate witnesses, whether called by itself
or by a party.
(c) Objections.
Objections to the calling of witnesses by the court or to interrogation
by it may be made at the time or at the next available opportunity when
a jury if seated, is not present.
2.5.20 Writing Used to Refresh Memory
If a person
uses a writing to refresh memory for the purpose of testifying, either
while testifying or before testifying, if the court in its discretion
determines it is necessary in the interests of justice, an adverse party
is entitled to have the writing produced at the hearing, to inspect
it, to cross examine the witness thereon, and to introduce in evidence
those portions which relate to the testimony of the witness. If it is
claimed the writing contains matters not related to the subject matter
of the testimony, the court shall examine and excise any portions not
so related and order delivery to the party entitled thereto. Any portion
withheld over objections shall be preserved and made available to the
appellate court in the event of an appeal. If a writing is not produced
or delivered pursuant to order under this rule the court shall make
any order justice requires including striking the testimony of the witness.
[See Tribal
case law for precedent. FRE 612 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.21 Prior Statements of Witnesses
(a) In
examining a witness concerning a prior statement made by a witness,
whether written or not, the statement need not be shown nor its contents
disclosed to the witness at that time, but on request the same shall
be shown or disclosed to opposing counsel.
[See Tribal
case law for precedent. FRE 613 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(b) Extrinsic
evidence of a prior inconsistent statement by a witness is not admissible
unless the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate
the witness thereon, or the interests of justice otherwise require.
This provision does not apply to admissions by a party opponent.
[See Section
2.5.12 et seq. FRE 614 may be looked to, and cases pertaining to this
rule may be cited to as persuasive argument]
2.5.22 Who May Impeach.
The credibility
of a witness may be attacked by any party, including the party calling
the witness.
[See Tribal
case law for precedent. FRE 607 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
2.5.23 Evidence of Character and Conduct of Witness
(a) The
credibility of a witness may be attacked or supported by evidence
in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness, and
(2) evidence of truthful character is admissible only after the character
of the witness for truthfulness has been attacked by opinion or reputation
evidence or otherwise.
[See Tribal
case law for precedent. FRE 608 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
(b) Evidence
that a person other than the accused has been convicted of a crime
shall be admitted if the crime was punishable by death or imprisonment
by more than one year and if the court determines that the probative
value of admitting this evidence outweighs its prejudicial effect
to the accused, or if the crime involved dishonesty or false statement,
regardless of the punishment. Evidence of a conviction is not admissible
if a period of more than ten years has elapsed since the date of the
conviction or of the release of the witness from confinement imposed
for that conviction, whichever is the later date, unless the court
determines in the interest of justice, that the probative value of
the conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect.
2.5.24 Impeachment by Evidence of Conviction of a Crime
(a) General
Rule. For the purpose of attacking the credibility of a witness
(1) evidence that a witness other than the accused has been convicted
of a crime shall be admitted, if the crime was punishable by death
or imprisonment in excess of one year under the law under which the
witness was convicted , and such evidence shall be admitted if the
court determines that the probative value of admitting this evidence
outweighs its prejudicial effect to the accused; and (2) evidence
that any witness has been convicted of a crime shall be admitted if
it involved dishonesty or false statement, regardless of the punishment.
(b) Time
limit. Evidence of conviction under this rule is not admissible
if a period of more than ten years has elapsed since the date of the
conviction or of the release of the witness from the confinement imposed
for that conviction, whichever is the later date, unless the court
determines, in the interests of justice, that the probative value
of the conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect. Such evidence is not admissible
unless the proponent gives to the adverse party sufficient advance
written notice of intent to use such evidence to provide the adverse
party with a fair opportunity to contest the use of such evidence.
(c)
Effect of Pardon, Annulment, or Certificate of Rehabilitation.
Evidence of conviction is not admissible under this rule if the conviction
has been the subject of a pardon, annulment, certificate of rehabilitation,
or other equivalent procedure based on a finding of innocence.
(d) Juvenile
adjudications. Evidence of juvenile adjudications is generally
not admissible under this rule. The court may, however, in a criminal
case allow evidence of a juvenile adjudication of a witness other
than the accused if conviction of the offense would be admissible
to attack the credibility of an adult.
[See Tribal
case law for precedent. FRE 609 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
Rulings on Evidence
2.5.25 Rulings on Evidence
(a) Effect
of Erroneous Ruling. Evidence may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the
party is affected, and (1) Objection. In case the ruling is one admitting
evidence, a timely objection or motion to strike appears of record,
stating the specific ground of objection, if the specific ground was
not apparent from the context; or (2) Offer of Proof. In case the
ruling is one excluding evidence, the substance of the evidence was
made known to the court by offer or was apparent from the context
within which questions were asked.
(b) Record
of Offer and Ruling. The court may add any other or further statement
which shows the character of the evidence, the form in which it is
offered, the objection made, and the ruling thereon. It may direct
the making of an offer in question and answer form.
(c) Hearing
of Jury. In jury cases, proceedings shall be conducted, to the
extent practicable, so as to prevent inadmissible evidence from being
suggested to the jury by any means, such as making statements or offers
of proof or asking questions before the jury.
(d) Plain
Error. Nothing in this rule precludes taking notice of plain errors
affecting substantial rights although they were not brought to the
attention of the court.
[See Tribal
case law for precedent. FRE 103 may be looked to, and cases pertaining
to this rule may be cited to as persuasive argument]
Chapter 6: Appeals
2.6.01 Appeals
(a) Within
twenty (20) days from the entry of a final judgment, or judgment on
a dispositive motion, a party dissatisfied with the judgment may file
a notice of appeal with this court.
(b) The
Tribal Court may require the Appellant to post a cost bond in an amount
which will secure the cost of appeal
(1) Disposition
of Bond. After the Court of Appeal has issued its opinion, it shall
upon the motion of any party or upon its own motion order such disposition
of any appeal bond which may have been posted as deemed just and consistent
with these rules.
(2) If
security is given in the form of a bond or stipulation or other undertaking
with one or more sureties each surety submits itself to the jurisdiction
of the Hoopa Valley Tribal Court of Appeal and irrevocably appoints
the Clerk of the Court as its agent upon whom any papers affecting
its liability on the bond or undertaking may be served. The sureties'
liability may be enforced on motion.
(3) The
Hoopa Valley Tribal shall not be required to post any bonds.
(c) Serving
the Notice of Appeal. The Court Clerk shall serve notice of the
filing of a notice of appeal by mailing a copy to each party. The Clerk
shall send a copy of the notice to the Hoopa Valley Court of Appeals.
(d) Filing
Fee. The filing fee for appeals of Tribal Court decisions shall
be $150.00. The Hoopa Valley Tribe shall not be required to pay any
filing fees.
(e) Composition
of the Hoopa Valley Tribal Court appellate panels
(1) The
appellate panel shall be comprised of and appointed pursuant to Hoopa
Valley Tribal Code section 1.4.02.
(2) The
matter shall be heard by justices appointed and impaneled in the Hoopa
Valley Tribal Court of Appeals. The Hoopa Valley Court of Appeals
may hear the matter or if there is not a standing Hoopa Valley Court
of Appeals a court system contracted with by the Hoopa Valley Tribal
Council may hear the matter.
(f) All
travel and per diem costs shall be borne by the litigants. Attorney
fees and costs incurred to prosecute or defend an appeal may be awarded
by the Appellate Court to the prevailing party. The Hoopa Valley Tribal
Court and the Appellate Court shall have no jurisdiction at any time,
whether it is at the trial court or appellate court level to award any
costs or attorney fees against the Hoopa Valley Tribe at any time, unless
the tribe has expressly and specifically waived its sovereign immunity
for such awards described in this section according to the language
of 1 HVTC 1.1.04(e)
2.6.02 Appeal as of Right
(a) Filing
the Notice of Appeal.
(1) An
appeal permitted by law as of right from the Hoopa Valley Tribal Court
of Appeals may be taken only by filing a notice of appeal with the
Hoopa Valley Tribal Court within the time frame specified in 2 HVTC
§ 2.6.01(a). Failure to appeal within that timeframe shall constitute
a dismissal of the claim.
(b) Contents
of the Notice of Appeal
(1) The
notice of appeal must;
(A)
specify the party or parties taking the appeal by naming each one
in the caption or body of the notice, but an attorney representing
more than one party may describe those parties with such terms as
"all plaintiffs," "the defendants,","the
plaintiffs A, B. et. al.,"" or all defendants except X";
(B)
designate the judgment, order, or part thereof being appealed; and
(C)
name the court to which the appeal is taken
(2) An
appeal must not be dismissed for informality of form or title of the
notice of appeal, or for failure to name a party whose intent to appeal
is otherwise clear from the notice.
(c) Filing
Before Entry of Judgment. A notice of appeal filed after the court announces
a decision or order, but before the entry of the judgment or order is
treated as filed on the date of and after the entry.
[See Tribal
case law for precedent. Fed. R. App P. 3 and 4 may be looked to, and
cases pertaining to this rule may be cited to as persuasive argument]
Chapter 7: Miscellaneous
2.7.01 Savings Clause
If any
provision of this Title is declared to be invalid, the remaining provisions
shall not be affected.
2.7.02 Recording of Hoopa Valley Tribal Court Proceedings
All proceedings
before the Hoopa Valley Tribal Court shall be recorded in a manner that
accurately preserves the courts evidentiary and testimonial record.
The use of an electronic recording device may be used to record Hoopa
Valley Tribal Court proceedings. Prior to any electronic recording device
being used, the Court shall ensure that is working properly. Upon the
application of any Party or upon the Court's motion, the Court may authorize
the use of a certified court reporter to record an action or proceeding.
Any application by a Party under this section shall be made by motion
no later than 20 days prior to the scheduled date of the hearing. The
Hoopa Valley Tribal Court shall have under contract and budgeted for
in the court's budget a certified court reporter ready and able to record
court proceedings. The Hoopa Valley Tribal Court in granting or denying
a motion for a court reporter must base the decision upon the information
presented by the motions, the Court's current understanding of the of
the matter, the potential for witnesses and exhibits, the potential
amount of damages and relief requested, and the chances of an appeal
in order to determine whether both parties interests will be protected
by ensuring an accurate evidentiary and testimonial record. The Hoopa
Valley Tribal Court shall not require the parties to pay for the use
of a court reporter.
(a) All
actions brought under 1 H.V.T.C § 1.1.04(f) shall be recorded
by a certified court reporter. The Parties to an action brought under
1 H.V.T.C. § 1.1.04(f) may agree to waive the use of a certified
court reporter during any preliminary proceedings and in such case
the use of an electronic recording device shall record the preliminary
proceedings.
CERTIFICATION
I, the
undersigned, as Chairman of the Hoopa Valley Tribal Council so certify
that the Hoopa Valley Tribal Council is composed of eight (8) members
of which six (6) members were present, constituting a quorum, at a regular
meeting thereof; duly and regularly called, noticed, convened and held
this eleventh day of April, 2005; and that this Ordinance was adopted
by a vote of five (5) for, zero (0) opposed, and zero (0) abstaining;
and that since approval, this Ordinance has not been rescinded, amended,
or modified in any form.
DATED THIS
11TH DAY OF APRIL, 2005.
________________________________
Clifford Lyle Marshall, Chairman
Hoopa Valley Tribal Council
ATTEST:
________________________________
Darcy
Miller, Executive Secretary
Hoopa
Valley Tribal Council
Approved
April 11, 2005
Back
to Top