II. FACTS Late on the afternoon of Thursday, January, Nooksack Tribal Council Chairman Robert Kelly called the first Special Meeting of the Tribal Council in several months. Chairman Kelly called the meeting for Friday afternoon, January, at :0 PM. This did not give councilmembers the twenty-four hours notice required by Article II, Section of the Nooksack Bylaws. On January, at 1: PM, Plaintiff-Councilwoman Michelle Roberts emailed Chairman Kelly: Thank you for the invite Bob, I will be available by teleconference only, please provide me with an access code. Also, could you tell me what is on the agenda. Thank you, Michelle Neither Chairman Kelly nor anybody from his office replied. Tribal Council Secretary Rudy St. Germain sent a similar email to the Tribal Council, indicating he was also available for the Special Meeting that Friday afternoon via conference call. anybody from his office replied. Neither Chairman Kelly nor Councilmembers Roberts and St. Germain took that to mean that the Tribal Council could not get quorum for the Special Meeting that day. Councilmembers Roberts and St. Germain attempted to call the Chairman s office that Friday afternoon at :0 PM. There was no answer. Since at least March of, all Special Meetings have been held telephonically. attend telephonically. Still, If a councilmember is out of the office, he or she may Declaration of Nooksack Tribal Councilwoman Michelle Joan Roberts, subjoined to the Complaint, at. Id. Id. Id. Id. Id. Id. at -. Id. at. Id. Id. at Id. MOTION FOR PRELIMINARY INJUNCTION WRIT OF MANDAMUS - Mailing: P.O. Box Seattle, WA 1
At close of business Chairman Kelly sent out another email, calling a Special Meeting for Saturday at :0 PM. This did not give councilmembers the twenty-four hours notice required by Article II, Section of the Nooksack Bylaws. Tribal Council meeting are generally not called on the weekend or on holidays. Councilwoman Roberts responded as follows: With your spontaneous call of council meetings at the Chairmanship office, I am feeling uncomfortable being there with all the hate going on right now and the unprofessional on how terminations have been carried out and other actions this council has taken to hurt my family. I still have not received an agenda and I noticed that things have been approved by council that have been posted on the communications page so it is obvious that you have been conducting meetings without Rudy or me. I will be AVAILABLE for this afternoons meeting by teleconference, please provide me with an access code or I will just call into the chairmans office. I am assuming this is an open meeting. Thank you Michelle Roberts Council Member Again, Chairman Kelly did not reply. Tribal Council Secretary St. Germain sent a similar email, indicating he was also available for the Special Meeting that Saturday afternoon via conference call. And again, Councilmembers Roberts and St. Germain tried calling the Chairman s office on Saturday afternoon at : PM to get the teleconference information, but again, there was no answer. Chairman Kelly once again: Later that Saturday afternoon, Councilwoman Roberts emailed What is the reason why the other two meetings did not take place? I called into the chairmans office yesterday because I did not get a response from you that it was canceled, also the same as the meeting that was scheduled on Friday. If the meetings are going to be canceled I would appreciate a courtesy message of the cancelation and the reason why. I have made myself available on both occasions just to be ignored. Also, please provide the agenda for this meeting. Michelle Roberts Once again, Chairman Kelly did not reply. Id. at. Id. Id. Id. Id. Id. Id. MOTION FOR PRELIMINARY INJUNCTION WRIT OF MANDAMUS - Mailing: P.O. Box Seattle, WA 1
On Sunday evening, Chairman Kelly, for the third time, attempted to call another Special Meeting of the Tribal Council, for Monday, January, the federal Martin Luther King, Jr., holiday at :0 AM. This did not give councilmembers the twenty-four hours notice required by Article II, Section of the Nooksack Bylaws. Nor did it comport with Tribal Council s practice of doing no business on federal holidays. Chairwoman Roberts once again called the Chairman s office at the time requested. The person who answered the phone said that the Special Meeting was already in session, and that she was specifically instructed to not patch in Councilmembers Roberts or St. Germain to the meeting. Roberts emailed Chairman Kelly: At : AM, Chairwoman I called I to the council office at :0 and asked to join the meeting. The message given was you were in session already why would you prevent me from attending when you have allowed Abby and others to walk in late. You have set the precedence of teleconference this year so why are you disallowing it now. Michelle Roberts Yet again, Chairman Kelly did not reply. On the afternoon of January,, Councilmembers Roberts and St. Germain s Tribal cell phone service, and their @nooksack-nsn.gov email account, were shut down. Plaintiff- Councilmembers Roberts and St. Germain have been illegally removed from the Tribal Council, without cause, during a meeting that they were not allowed to attend. Id. Id. at -. Id. at. Id. at. Id. at. Id. Id. MOTION FOR PRELIMINARY INJUNCTION WRIT OF MANDAMUS - Mailing: P.O. Box Seattle, WA 1
III. STANDARD A [party] seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Sovereign immunity does not protect suits by a member of the Nooksack Indian Tribe against an officer, employee, or agent of the Tribe acting in his or her official capacity if a plaintiff can make a minimal threshold showing that that the acts of the officer, employee, or agent violate the Nooksack Constitution or superior Nooksack law. The Nooksack Court of Appeals has recently held that when a tribal member properly pleads under this exception to sovereign immunity, this Court possesses a constitutional grant of jurisdiction to authorize the issuance of a writ of mandamus to compel Tribal Council officers to perform constitutionally required non-discretionary duties. When a petitioner seeks to reinstate a person in an office from which he has been illegally removed, a writ of mandamus is the proper judicial remedy. 0 Winter v. NRDC, S.Ct., (0). Lomeli, No. -CI-APL-00, at. The Lomeli court did not go into detail as to what this threshold showing requires. Defendants have suggested that the Federal Tort Claims Act, U.S.C., et seq., should provide the standard for determining whether this threshold has been met. Response Brief of Appellees, Lomeli v. Kelly, No. -CI-CL-001, at n. (Nooksack Ct. App. Nov. 1, ). Plaintiffs do not object. Under this standard, the Court may determine subject matter jurisdiction..., so long as it demands less in the way of jurisdictional proof than it would for a ruling on the merits. Gould Electronics Inc. v. U.S., 0 F.d, (rd. Cir. 00). This requires that the Court convert the [Tribe] s Rule (b)(1) motion to dismiss... to a summary judgment motion under Rule (b)(), whereunder dismissal should be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Evert v. U.S., 00 F.Supp.d 0, (D. Wyo. ) (quoting Fed. R. Civ. Proc. (c)). Lomeli, No. -CI-APL-00, at. 0 Forami v. Reynolds, A.d, (Md. ); see also generally Jones v. Nelson, S.E.d (); Miles v. Cox, So. d (Miss. ). MOTION FOR PRELIMINARY INJUNCTION WRIT OF MANDAMUS - Mailing: P.O. Box Seattle, WA 1
IV. ARGUMENT A. Plaintiffs Are Acting Beyond The Authority Granted By Article V Of The Constitution. Article V of the Nooksack Constitution lists the exclusive reasons that an officer or member of the tribal council may be removed from office. 1 Constitution states, in relevant part: That provision of the Nooksack Section 1. If any officer or member of the tribal council shall be absent from any three () consecutive regular or special meetings without sufficient reason, the other members may declare the council position vacant by a four-seventh (/) vote of the tribal council. The councilmember subject to the removal may not participate in the vote of the tribal council. Section. Any officer or member of the tribal council who, while in office, is convicted of a felony by any federal, state or Indian court, may be removed from office by a four-seventh (/) vote of the tribal council. In order to be properly removed, Section 1 of the Constitution assumes that, (1) the regular or special meetings that the councilmember subject to removal is alleged to be absent from were held and called in compliance with Nooksack law; () the councilmember subject to removal did not offer sufficient reason for his or her absence; and () a four-seventh (/) vote of the tribal council was properly obtained. Section s requirements are self-explanatory. Here, none of the above occurred. Neither Secretary St. Germain nor Councilwoman Roberts have been absent from three consecutive Tribal Council meetings. But even if they were, the Tribal Council has not found that Secretary St. Germain or Councilwoman Roberts have been unable to offer sufficient reason for their absence. Indeed, neither Secretary St. Germain nor Councilwoman Roberts have been able to even present any reason to the Tribal Council. Nor have they been able to verify that four-seventh (/) vote of the tribal council was 1 Const., art. V. Id. at 1-. MOTION FOR PRELIMINARY INJUNCTION WRIT OF MANDAMUS - Mailing: P.O. Box Seattle, WA 1
properly obtained. Without question, neither Secretary St. Germain nor Councilwoman Roberts have been convicted of a felony. Simply put, Secretary St. Germain and Councilwoman Roberts have been removed from office illegally. B. Plaintiffs Will Succeed On The Remaining Winter Factors. Damage to a plaintiff s constitutional right to office is grave and cannot be compensated by remedies at law. The balance of hardships tips also sharply in favor of injunction. Plaintiffs seek only to preserve the status quo. An injunction preserving that status for a matter of weeks will not inconvenience Defendants, let along cause hardship. The Nooksack People have a profound interest in the constitutional and even application of their laws, the protection of individuals from the power of Tribal officers and employees, and the orderly review of Defendants actions. There is no legitimate purpose in expediting a process regarding such profound potential injuries. V. CONCLUSION Plaintiffs respectfully request that the Court enjoin Defendants from acting in furtherance of the law or policy that illegally removed Plaintiff-Councilmembers Rudy St. Germain and Michelle Roberts from office, until a final hearing can be held and disposition of the rights of the parties can be finally determined. Additionally, it would appear that whatever vote was held was held prematurely, as neither Secretary St. Germain nor Councilwoman Roberts have been able to present any reason to the Tribal Council, which is required pursuant to Article V, Section 1. Generally, when applicable law gives the elected official a property interest in the office for the given length of time, and that the official must receive due process before being removed from office. East St. Louis Federation of Teachers v. East St. Louis School Dist., N.E.d 0, 0 (Ill. ) (citing Crowe v. Lucas, F.d, (th Cir. ); Collins v. Morris, S.E.d, (); Foley v. Kennedy, P.d, ()). To the extent that Secretary St. Germain and Councilwoman Roberts have been removed from office without an opportunity to present any reason to the Tribal Council, they have been denied the due process guaranteed by Article IX of the Nooksack Constitution. United Food & Commercial Workers Local v. Bennett, No. -0, WL 1, at * (D. Ariz. Mar., ); see also Am. Trucking Ass ns, Inc. v. City of Los Angeles, F.d, (th Cir. 0) ( Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm. ); A Wright & Miller, FED. PRAC. & PROC..1 (d ed. 0) ( When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary. ). MOTION FOR PRELIMINARY INJUNCTION WRIT OF MANDAMUS - Mailing: P.O. Box Seattle, WA 1
DATED this st day of January,. Gabriel S. Galanda Anthony S. Broadman Ryan D. Dreveskracht Attorneys for Plaintiffs GALANDA BROADMAN, PLLC Email: gabe@galandabroadman.com Email: anthony@galandabroadman.com Email: ryan@galandabroadman.com MOTION FOR PRELIMINARY INJUNCTION WRIT OF MANDAMUS - Mailing: P.O. Box Seattle, WA 1
I, Gabriel S. Galanda, say: DECLARATION OF SERVICE 1. I am over eighteen years of age and am competent to testify, and have personal knowledge of the facts set forth herein. I am counsel of record for Plaintiffs.. Today, I caused the forgoing document to be served via U.S. certified mail upon: Chairman Robert Kelly Nooksack Tribal Council Nooksack Indian Tribe Mt. Baker Hwy, Suite G P.O. Box Deming, WA and mailed and emailed to: Grett Hurley Rickie Armstrong Office of Tribal Attorney Nooksack Indian Tribe 0 Mt. Baker Hwy P.O. Box Deming, WA and emailed to: Thomas Schlosser Morisset, Schlosser, Jozwiak & Somerville Norton Building 01 Second Avenue Seattle, WA -0 The foregoing statement is made under penalty of perjury under the laws of the Nooksack Tribe and the State of Washington and is true and correct. DATED this st day of January,. GABRIEL S. GALANDA MOTION FOR PRELIMINARY INJUNCTION WRIT OF MANDAMUS - Mailing: P.O. Box Seattle, WA 1