Little River Band of Ottawa Indians Tribal Council
Ogema Larry Romanelli and Tribal Prosecutor Jonathan Hauswirth
Case No. 23-105-GC
Little River Band of Ottawa Indians Tribal Court
September 27, 2023
On September 12, 2023, the Court held a motion hearing on the above captioned case. Defendant Hauswirth, his attorney Mr. Van Alstine, Mr. Swain representing the Ogema, and Mr. Pitchlynn representing Tribal Council all appeared.
This case centers on three different issues:
1. Whether the doctrine of laches bars Tribal Council from success in this suit;
2. Whether Section 8.02 and Section 8.03 of the Office of the Prosecutor Ordinance is unconstitutional;
and perhaps most important,
3. What is the right of Tribal citizens to be informed of their Council Members' votes and actions coming out of a closed session?
3. What is the right of Tribal citizens to be informed of their Council Members' votes and actions coming out of a closed session?
During the hearing, the Court heard arguments on the following:
A. Defendant Hauswirth's Motion for Summary Disposition; and
B. Defendant Ogema's Motion for Summary Disposition.
The Court addresses each in turn.
The following is not in dispute (some of which are procedural for purposes of establishing a timeline):
1. LRBOI prosecuting attorney, Shayne Machen, resigned from her position with notice to the Plaintiffs and to the Ogema on August 31, 2020 (effective October 30, 2020).
2. A group of interviewers, who at the time did not comprise of Tribal Council members, interviewed five (5) candidates for the position and the Ogema brought current Tribal Prosecutor Jonathan Hauswirth forward as a candidate.
3. On November 18, 2020, a regular Tribal Council meeting was held, where in closed, a discussion was had regarding the nomination and the proposed contract for Mr. Hauswirth's employment. A vote was called in closed session. The vote was as follows (the Court has this information because Plaintiffs filed the closed session minutes with their complaint):a. R. Wittenberg-NO
b. D. Lonn-YES
c. T. Guenthardt-YES
d. S. Crampton-NO
e. D. Corey-NO
f. R. Pete-YES
g. G. DiPiazza-YES
h. C. Champagne-NO
i. S. Lewis-NO
At the end of the roll call, stated clearly in the minutes, reads "Motion failed (4-5-0-0)".
4. Then, on November 25, 2020, Tribal Council held another regular Tribal Council meeting, where during a closed session, they again voted on Mr. Hauswirth's candidacy. The vote was as follows (the Court has this information because Plaintiffs filed the closed session minutes with their complaint):a. R. Wittenberg-NO
b. D. Lonn-YES
c. T. Guenthardt-YES
d. S. Crampton-NO
e. D. Corey-YES
f. R. Pete-YES
g. G. DiPiazza-YES
h. C. Champagne-NO
i. S. Lewis-NO
At the end of the roll call, stated clearly in the minutes, reads "Motion carried (5-4-0-0)".
5. The contract for Mr. Hauswirth's employment was executed on December 10, 2020.
6. Hauswirth has served in this position as the LRBOI Tribal Prosecutor since that date and with an approved budget as required.
7. On March 8, 2023, during closed session, council voted to bring suit. The record of this vote is unknown, as it was never disclosed during the pendency of this suit, despite the Court ordering such information to be filed in this case. In a response filed by Attorney Carrie Frias, Plaintiffs stated, "Attorney Frias was present at the closed Tribal Council meeting on March 8, 2023, where Plaintiff passed a motion to duly authorizing this suit." Plaintiff, through their own filing, confirmed there was no resolution existed.
8. On May 4, 2023, Plaintiff Tribal Council filed its Complaint requesting injunctive and declaratory relief asking the Court to affirm that the Prosecutor's contract was "invalid," that the Ogema did not have the authority to enter it, and as a result that the Prosecutor was "illegally installed."
9. On May 5, 2023, Chief Judge Angela Sherigan recused herself.
10. On May 9, 2023, Plaintiffs filed a Motion to have the entire judiciary recuse itself based on closed meeting minutes that were filed by Tribal Council attached to its motion.
11. The Court ruled from the bench on the Motion to Disqualify and denied the request for injunctive relief in an Order dated June 16, 2023.
12. Tribal Council's then attorney, Carrie Frias, filed a motion on June 30, 2023, asking the Court to reconsider its ruling on June 16, 2023, which the Court denied.
13. On August 4, 2023, Ryan Champagne attempted to file a Motion to Intervene in this suit, which has not been heard due to failure to comply with the Tribal Court Rules regarding interventions. A copy of the Motion is attached to this Order.
14. Both Defendants filed Motions for Summary Disposition in this case and both Motions were heard on September 12, 2023.
A. Defendant Hauswirth's Motion for Summary Disposition
Defendant Hauswirth's Motion for Summary Disposition centers on the doctrine of laches, which is an equitable defense. Blacks Law Legal dictionary defines laches as "negligence, consisting in the omission of something which a party might do, and might reasonably be expected to do, towards the vindication or enforcement of his rights." Black's Law Dictionary, (11th ed. 2019). Here, Hauswirth argues, Tribal Council not only failed to act on its claim, but also ratified his employment contract via the approval of his budget since December 2020. The Court Agrees. As of the date of this suit's filing, Mr. Hauswirth had been in his position for over thirty (30) months. His budget has been approved at least twice. And perhaps most importantly, he has been performing the functions of his job at the behest of this Tribal government. Furthermore, as written in the closed session minutes, the motion on November 25, 2020 carried. Council voted and carried the motion. And it bears worth stating that no one had access to the closed meeting minutes or the vote roll call, especially not the Prosecutor, despite Tribal Council's most recent filing. Accordingly, Defendant Hauswirth's Motion for Summary Disposition is GRANTED.
The Court now turns to Defendant Hauswirth's request for a finding that this lawsuit is frivolous in accordance with LRCR §4.625. The prosecution acts as an arm of the Executive Branch, which is the enforcement arm of the Little River Band of Ottawa Indians' government. This was an issue between two branches of government, both of whom have in house legal representation and are budgeted to have that representation. Here, we have an employee of the Tribe who has had to hire his own attorney, presently at his own expense, with no way to rely on his future income (as is the nature of this suit directly bearing on whether or not his employment contract was valid on its face).
It bears worth noting that it would be exceptionally hard to keep employees if the following is to be our expectation: that they could be named as individual defendants in a lawsuit between Tribal Council and the Ogema, due to no fault of their own, and that their legal expenses may or may not be covered by the Tribe's insurance or their existing department's budget. And this is especially inequitable because it was Tribal Council, the same party asking this Court to void Mr. Hauswirth's employment contract, who voted and carried their motion to approve that same contract and who have approved his budget since 2020. So, the question then becomes "why now?". And we cannot answer that question without issuing a determination on Mr. Hauswirth's motion to this Court for a finding that this lawsuit is frivolous.
To meet the requirement of showing that a frivolous lawsuit or action has been filed, the movant (here, the Defendant Prosecutor) must show one of the following:
1. That the primary purpose of bringing the suit was to harass, embarrass or injure;
2. That it was based on untrue facts; or
3. The legal position was devoid of arguable legal merit. LRCR §4.625 (emphasis added).
Having considered the Motion, the Complaint and the allegations contained therein, and the Plaintiffs' requested relief, this Court finds that the first and third prongs of the requirement is met. It is important to state that the Court is making this finding for the following reasons: 1. The Plaintiff waited for over thirty (30) months to bring this suit; 2. This case is being used by Defendants who were previously on Tribal Council and/or whose relatives sat on Tribal Council while the suit was allegedly authorized as a not so thinly veiled attempt to invalidate their prosecution in a criminal case; and 3. The Plaintiffs legal position, which was that if the Court did not declare the employment contract of the Prosecutor to be invalid, the criminal charges, convictions and sentences of cases that have been brought to Mr. Hauswirth to prosecute on behalf of the Tribe would be tossed (despite citing zero legal authority, case law or otherwise, to support this argument). The timing of this lawsuit it not lost on this Court, nor is the likelihood that what occurred in closed session on March 8, 2023, though not shared with the Tribal membership writ large, was shared with at least one criminal Defendant being prosecuted by this Tribe. This lawsuit has been entirely unfair and unequitable to this Prosecutor and it has frustrated his ability to do what he was hired to do: help keep this Native Nation safe. But furthermore, and as was discussed in this Court's initial Order in this case, his livelihood, his reputation, his legal career, his health insurance, and so on, have all been hung in the balance of a case that is very simply not about him. Therefore, having granted the Defendant's Motion under LRCR §4.625, the Court is required to award the Defendant the reasonable costs and fees, including attorneys fees, he incurred in connection with this action pursuant to LRCRC §4.625(A)(2), which is unfortunate for numerous reasons: none more so than the impact to tribal services and tribal members.
The Defendant Prosecutor, as the party entitled to costs and reasonably attorney fees, must prove up their costs and fees in accordance with the LRCR Rules of Civil Procedure.
B. Defendant Ogema's Motion for Summary Disposition
Defendant Ogema's Motion for Summary Disposition centers on two arguments: 1. That §8.02 and §8.03 of the Tribal Prosecutor's Ordinance is unconstitutional considering Article IV §6(g)(2) of the Little River Band of Ottawa Indians Constitution; and 2. There was no resolution authorizing this lawsuit as per Willis v. Tribal Council, 22-010-GC.
The second argument of Defendant Ogema also requires the Court to delve into one of the most important aspects of this case: What is the right of Tribal citizens to be informed of their Council Members' votes and actions coming out of a closed session?
1. Section §8.02 and §8.03 of the Tribal Prosecutor 's Ordinance is Unconstitutional
The Defendant Ogema raised the constitutionality of the LRBOI Tribal Prosecutor's Ordinance Section 8.02 and Section 8.03.
Section 8.02 of the LRBOI Tribal Prosecutor's Ordinance states:
8.02. Appointment. No later than fifteen (15) days prior to the expiration of the Prosecutor's term of office, the Ogema shall nominate an individual for the position of the Prosecutor from among applicants jointly interviewed by the Ogema and Tribal Council.
Section 8.03 states:
8.03 Confirmation. The Ogema's nominee shall be subject to a confirmation by a Tribal Council Resolution by an affirmative vote of six (6) Tribal Council members.
As stated in Stone v. Tribal Council, 20-051-AP, the Constitution creates three branches of government with the powers and duties of each branch enumerated within this Constitution. A branch of government may only exercise or delegate the powers that the Constitution establishes that it has. No branch of government may exercise what it does not have, including the enumerated powers of another branch. Id. Here, we have an ordinance crafted that allows the legislative body to encroach upon the Executive Branch's Constitutionality delegated authority.
Defendant Ogema argues that neither of these provisions is constitutional. The Court agrees and turns first to address the constitutionality of §8.02. The Ogema and Tribal Council are to interview applicants jointly pursuant to the provision in the ordinance. But "consulting, negotiating and executing contracts" including with private persons, is an enumerated power of the Ogema expressly stated in the LRBOI Constitution. See Article V, §5 of the LRBOI Constitution. That the Ogema would be required to interview applicants jointly with Tribal Council is an encroachment on the Executive Branch's power under the separation of powers doctrine. The Court certainly can see the purpose of a Tribal Council that is informed of a candidate's qualifications prior to a ministerial confirmation vote, but to require that they be involved in a specific way, exercising essentially the same function as the Ogema prior to bringing the nominee forward, is an encroachment. Furthermore, there is no requirement of council to appear for said interview process and no remedy should they fail to materialize in a timely manner for said interviews. There is also no mention of how many Tribal Council Members must be present. Accordingly, the Court finds that §8.02 is unconstitutional.
Article 5, §5 of the LRBOI Constitution enumerates the powers of the Ogema, the very first one which states "to enforce and execute the laws, ordinances, and resolutions of the Tribal Council consistent with this Constitution." Id. §5 (a)(1). Clearly, enforce and execute the laws, ordinances and resolutions of the Tribe would require, at least in many regards, the appointment of a Prosecutor (and the execution of their employment contract). Even the findings of the Tribal Prosecutors Ordinance recognize the Constitution's grant of executive powers to the Ogema to enforce and execute the laws, ordinances, and resolutions of the Tribal Council, consistent with the Constitution. See 1.03 of the Office of the Prosecutor Ordinance, #11-400-09 and Article IV, §5 of the LRBOI Constitution.
An additional enumerated power listed is, "to consult, negotiate, and execute agreements and contracts on behalf of the Little River Band with federal, state, and local governments and other tribal governments, or with private persons or organizations. Agreements and contracts reached must be approved or ratified by Tribal Council to be effective." Id. §5 (a)(3). Tribal Council's authority with regard to agreements and contracts with private persons is limited to approval and ratification, and this Court agrees is ministerial in nature. As stated above, the Court found that the Plaintiffs ratified the employment contract of Mr. Hauswirth by taking numerous active measures: approving his budget since hire, paying his salary since hire, having him prosecute cases and so on. The Ogema certainly had the power to execute the employment contract for Mr. Hauswirth, as is clearly stated in the Constitution. The ongoing ratification of that contract for the past thirty-five months by Council made it effective.
The Court now turns to address the constitutionality of Section 8.03 of the Office of the Prosecutor's Ordinance.
Article IV, Section 6(g)(2) of the LRBOI Constitution states:
(g) Action by Tribal Council (2). The Tribal Council action by a majority of the quorum present and voting at the meeting, unless otherwise specified in this Constitution, and minutes shall identify each Council Member's vote on every issue.
Within the LRBOI Constitution, there are places where a super-majority is specified. Specifically, the removal of the Ogema, a council member, or a judge. See Article X, §3 and Article VI, §6 of the LRBOI Constitution. The Constitution also expressly mandates a super-majority of votes includes Article VII, §4 (General Membership Powers-Referendum). The important language from Section 6(g)(2) is "unless otherwise specified in this Constitution."
The Court agrees with the Defendant Ogema, finding that the Constitution does not specify any enumerated power where Tribal Council may create, via ordinance or otherwise, a super-majority vote requirement to confirm an appointment. Tribal Council's attorney, Mr. Gary Pitchlynn, argued during the hearing that Council was creating higher minimum standards for itself by self-imposing the super majority via the Ordinance. But this Court instead finds that the super majority requirement here gives what is essentially veto power to an incredibly small amount of Tribal Council Members, thereby usurping on the enumerated powers of the Ogema and completely frustrating the role of the Executive Branch of this government. Given that the Constitution does not provide a specific grant of authority for Council to impose a super-majority for confirmation, this Court finds that Section 8.03 is unconstitutional.
2. No Resolution Authorizing this Suit and the Inherent Problem of Voting in Closed Session
That there was not a resolution authorizing this suit was an issue early on in this case, specifically because no motion or vote on said motion was recorded in the public meeting minutes.1 It was not addressed until this Order because up to this point, we have had numerous motions to disqualify the judiciary from hearing this case, which were detrimental to moving forward. Therefore, the Court will address it now.
The LRBOI Constitution states:
Section 6 (g): "Action by the Tribal Council.
1. The Tribal Council shall act only by ordinance, resolution, or motion.
2. The Tribal Council action shall be determined by a majority of the quorum present and voting at the meeting, unless otherwise specified in this Constitution, and minutes shall identify each Council Member's vote on every issue."
Here, there is no motion or vote recorded in the minutes of Tribal Council from their meeting on March 8, 2023. The only record we have that this suit was voted on comes from Plaintiffs' response on May 30, 2023. None of the public minutes include a record of the vote or the discussion because it was allegedly handled and voted on during closed session. It was also authorized via motion, rather than resolution, further obfuscating Tribal membership's ability to have knowledge of it.
The Tribal Council Procedures Ordinance defines "Closed Session" to mean that portion of a meeting, which is closed to the public to address personnel, business matters, or legal matters pursuant to Article IV, Section 6(d) of the Constitution.
So, the question that arises then is whether or not going into "closed session" is a valid abrogation of Section 6(g)(2), specifically where it states, "minutes shall identify each Council Member's vote on every issue." Id.
And the answer is no.
Article IV, Section 6(d) specifically states:
(d) Open Meetings; Closed Sessions. All meetings of the Tribal Council shall be open to the Tribal Membership. However, the Council may meet in closed session for the following purposes:
1. Personnel Matters, provided the employee in question did not request a public meeting, or
2. Business matters involving consideration of bids or contracts which are privileged or confidential, or
3. Claims by and against the Tribe.
Council is authorized to meet in closed session pursuant to Article IV, Section 6(d) of the Constitution, "to address personnel matters, business matters or legal matters." See §9.01 of the Tribal Council Procedures Ordinance, #06-100-02.
Here, we are focusing on the lack of a resolution to authorize this suit, so our analysis must turn on the definition of "legal matters." Luckily, the TCPO defines it for us:
"Legal matters" means all matters of the Tribe wherein the Tribe is, or may be, a party, either directly or indirectly, to a legal proceeding in federal, state, or Tribal court or an administrative forum addressing a matter to which the attorney-client privilege attaches; a matter wherein the Tribe is considering acting in its legal capacity as a party; e.g., purchase of land. Legal matters may be discussed by the Tribal Council in closed session pursuant to Article IV, Section 6(d) of the Tribal Constitution." Emphasis added. See §3.10 of the Tribal Council Procedures Ordinance, #06-100-02.
Legal matters may be discussed in closed session. Adopting a litigation strategy or a negotiating position is not the same as authorizing suit, which is an action. As this is an action, it required a vote. And no vote can occur in closed session. Section 9.02 of the Tribal Council Procedures make this clear.
"9.02. Purpose. Closed sessions are intended to permit the Tribal Council to engage in open, frank discussion and debate regarding matters that may require confidentiality, involve proprietary business matters, negotiating positions or are covered by one or more legally recognized privileges." Emphasis added. See §9.02 of the Tribal Council Procedures Ordinance, #06-100-02.
Open, frank discussion and debate is what occurs during closed session. Votes do not. Upon the conclusion of closed session discussions and debate, council votes to move into open session (where there is time) to record the vote of Council. If time does not permit, the matter gets put on the next meeting agenda as per the rules.2 It bears worth discussing why voting is not permitted in closed session. One clear example would be conflicts of interest which would bar a member of Tribal Council from voting. And we do not need to turn to a hypothetical to illustrate this, as we have a Motion to Intervene which has been filed in this case on behalf of Ryan Champagne, a criminal defendant currently being prosecuted by Mr. Hauswirth (this of course bolsters the Court's analysis regarding the finding that this lawsuit was frivolous as to Mr. Hauswirth). A question a Tribal member might validly have is whether or not then Speaker Ryan Champagne's mother, also a member of Tribal Council at the time of the closed session discussion allegedly authorizing this suit, voted (in closed session) to authorize this suit, the basis of which was a request of this court to enjoin the Prosecutor from doing his job. Unfortunately, no one knows the vote roll call because Plaintiffs did not file the Court ordered information, and instead filed another Motion to Disqualify the Judge. At this point, other than through the statements of Plaintiffs then legal counsel (Attorney Carrie Frias) via a written response to the Court, the Tribal membership has no way to confirm whether or not a vote even occurred. Meaning, Tribal membership is getting notice of certain Tribal Council actions through litigation, which defeats the purpose of a purpose of a representative form of government.
This Court finds that Council violated the LRBOI Tribal Constitution Article IV, Section 6(d) by voting in closed session to authorize this suit and by failing to bring forward and produce a resolution authorizing this suit in accordance with Article IV, Section 6(g), since the vote was not recorded in the in the minutes and made public and because "all decisions, actions or directives of the Tribal Council, which are not memorialized by ordinance or resolution, shall be made my motion and roll call vote, in accordance with the procedure described in Section 7.03." See §8.05 of the Tribal Council Procedures Ordinance, #06-100-02.
Voting in closed session is antithetical to the purpose of a representative form of government. This is an incredibly troubling aspect of this case. To be informed voters and active political citizens, tribal members must have notice of what is occurring within the Tribe. Voting in closed session robs tribal members of certain critical aspects of a representative government: it mutes their vote and their collective voice by stripping them of their ability to know which elected council member voted on which issue and which way they voted. Therefore, respectfully, and humbly from this Court, Tribal Council must not vote in closed session.
Both Motions for Summary Disposition are GRANTED, as is the Prosecutor's motion for a finding that this is a frivolous suit pursuant to LRCR §4.625. The Court finds that §8.02 and §8.03 of the Prosecutor's Ordinance are unconstitutional. Furthermore, the Court finds that Tribal Council violated the Constitution by voting on matters in closed session.
The Office of the Prosecutor was established to be independent, to ensure that the Prosecutor could carry out their prosecutorial discretions and functions without influence from any branch of government and to protect the tribal community. See Article 1 §1.03(c) of the Office of the Prosecutor's Ordinance. Unfortunately, this lawsuit was a direct violation of the values espoused in those findings.
All other requested relief not addressed in this ORDER is DENIED. This case is CLOSED.
It is SO ORDERED this 27th Day of September 2023.
/s/ Caroline LaPorte, J.D.
Caroline LaPorte, J.D.
1 See Court Order dated May 25, 2023.
2 "At the conclusion of each closed session, the Tribal Council will discuss whether any portion of the record (i.e. documents or written minutes) of such meeting can be open to the public. Except where the nature of the matter makes disclosure of the decision reached or action recommended following discussion of an item in closed session (i.e. adopting litigation strategy or negotiating position), a record of the decision made or action taken by the Tribal Council should be reported in the minutes and made public. If time permits, action by the Tribal Council should be moved to open session or placed on the agenda for action in open session at a future meeting)." See Article IX, §9.03(e) of the Tribal Council Procedures Ordinance, #06-100-02.