
    Dallas WHITE WING, Plaintiff, v. HO-CHUNK NATION GENERAL COUNCIL, through Alvin CLOUD, in his official capacity as Acting Chair of the General Council; Judy Whitehorse-Hillmer, in her official capacity as Secretary of the General Council; and the Ho-Chunk Legislature through Wade Blackdeer, Myrna Thompson, Christine Romano, Gerald Cleveland, Sharon Whiterabbit, Kathyleen Lonetree Whiterabbit, John Dall, Tracy Thundercloud, Elliott Garvin, and Clarence Pettibone, in their official capacities as Legislators; and the Ho-Chunk Nation Election Board through Mary Ellen Dumas, in her official capacity as Chair of the Election Board, Defendants.
    No. CV 04-99.
    Ho-Chunk Nation Trial Court.
    Nov. 18, 2004.
   ORDER (Granting Preliminary Injunction)

WILLIAM BOSSMAN, Chief Judge.

INTRODUCTION

On October 23, 2004, the Ho-Chunk Nation General Council enacted General Council Resolution 25 providing for the removal of the plaintiff from his office as a member of the Ho-Chunk Nation Legislature. The plaintiff seeks a Preliminary Injunction to enjoin the defendants from acting in furtherance of the General Council resolution. The Court grants the request for a Preliminary Injunction.

PROCEDURAL HISTORY

The plaintiff filed his Complaint on November 1, 2004. Consequently, the Court issued a Summons accompanied by the above-mentioned pleading on November 1, 2004, and delivered the documents by personal service to the governmental defendants’ representative, Ho-Chunk Nation Department of Justice (hereinafter DOJ). The Summons informed the defendants of the right to file an Answer within twenty (20) days of the issuance of the Summons pursuant to HCN R. Civ. P. 5(A)(2). The Summons also cautioned the defendants that a default judgment could result from failure to file within the prescribed time period.

The defendants, by and through DOJ Attorney Michael P. Murphy, filed their Defendants’ Brief in Opposition to Preliminary Injunction & Emergency Temporary Injunction on November 15, 2004.

The Court convened the Preliminary Injunction Hearing on November 16, 2004 at 3:00 P.M. CST. The following parties appeared at the Preliminary Injunction Hearing: Dallas White Wing, the plaintiff, together with his attorney, Glenn C. Reynolds; DOJ Attorney Wendi A. Huling, the legislative and election board defendants’ counsel; Michael P. Mullins, Sr., attorney for Ho-Chunk Nation General Council and for Alvin Cloud in his official capacity as Acting Chair of the General Council, and Judy Whitehorse-Hillmer, in her official capacity as Secretary of the General Council.

APPLICABLE LAW

CONSTITUTION OF THE HO-CHUNK NATION

ARTICLE III—ORGANIZATION OF THE GOVERNMENT

Section 1. Sovereignty. The Ho-Chunk Nation possesses inherent sovereign powers by virtue of self-government and democracy.

Section 2. Branches of Government. The government of the Ho-Chunk Nation shall be composed of four (4) branches: General Council, Legislature, Executive, and Judiciary.

Section 3. Separation of Functions. No branch of the government shall exercise the powers and functions delegated to another branch.

Section 4. Supremacy Clause. This Constitution shall be the supreme law over all territory and persons within the jurisdiction of the Ho-Chunk Nation.

ARTICLE IV—GENERAL COUNCIL

Section 1. Powers of the General Council. The People of the Ho-Chunk Nation hereby grant all inherent sovereign powers to the General Council. All eligible voters of the Ho-Chunk Nation are entitled to participate in General Council.

Section 2. Delegation of Authority. The General Council hereby authorizes the legislative branch to make laws and appropriate funds in accordance with Article VI. The General Council hereby authorizes the judicial branch to interpret and apply the laws and Constitution of the Nation in accordance with Article VII.

Section 3. Powers Retained by the General Council.

a. The General Council retains the power to set policy for the Nation.
b. The General Council retains the power to review and reverse actions of the Legislature except those enumerated in Section 4 of this Article. The General Council shall return such reversals to the Legislature for reconsideration consistent with the action of the General Council. The General Council retains the power to review and reverse decisions of the Judiciary which interpret actions of the Legislature. The General Council does not retain the power to review and reverse decisions of the Judiciary which interpret this Constitution.
c. The General Council retains the power to propose amendments in accordance with Article XIII, including those which reverse decisions of the Judiciary interpreting this Constitution.
d. The General Council retains the power to establish its own procedures in accordance with this Constitution.
e. The General Council retains the power to call a Special Election.
f. Actions by the General Council shall be binding.

Section 4. Excepted Poioers. The General Council does not retain the power to review actions relating to the hiring or firing of personnel.

Section 5. Annual Meetings. The People shall meet in General Council at least one time each year, which shall be called by the President, and at other times as provided in Section 6 of this Article. Notice shall be provided by the President for all Annual Meetings of the General Council.

Section 6. Special Meetings. Special Meetings of the General Council shall be called by the President upon petition by twenty (20) percent of the eligible voters, or upon written request of a majority of the Legislature, or when deemed necessary by the President. Notice shall be provided by the President for all Special Meetings of the General Council.

Section 7. Procedures. Twenty (20) percent of the eligible voters of the Nation present in General Council shall constitute a quorum. Each action of the General Council shall require the presence of a quorum. The President shall call all Annual and Special General Council Meetings, except those meetings called pursuant to Article IX, Section 2. When a quorum is attained, the General Council shall elect either the President or another person to conduct the meeting. A secretary shall be appointed to record the minutes of all General Council meetings, including any votes taken. The secretary shall transmit the minutes of General Council meetings to the Legislature.

ARTICLE VII—JUDICIARY

Section 5. Jurisdiction of the Judiciary.

a. The Trial Court shall have original jurisdiction over all cases and controversies, both criminal and civil, in law or in equity, arising under the Constitution, laws, customs and traditions of the Ho-Chunk Nation, including cases in which the Ho-Chunk Nation, or its officials and employees, shall be a party. Any such case or controversy arising within the jurisdiction of the Ho-Chunk Nation shall be filed in Trial Court before it is filed in any other court. This grant of jurisdiction by the General Council shall not be construed to be a waiver of the Nation’s sovereign immunity.

Section 6. Powers of the Tribal Court.

a. The Trial Court shall have the power to make findings of fact and conclusions of law. The Trial Court shall have the power to issue all remedies in law and in equity including injunctive and declaratory relief and all writs including attachment and mandamus.
b. The Trial Court shall have the power to declare the laws of the Ho-Chunk Nation void if such laws are not in agreement with this Constitution.

ARTICLE VIII—ELECTIONS

Section 2. Special Elections. Special Elections shall be held when called for by the General Council, the Legislature, or by this Constitution or appropriate ordinances. In all Special Elections, notice shall be provided to the voters.

ARTICLE IX—REMOVAL, RECALL AND VACANCIES

Section 1. General Council Removal of Legislators. The General Council may remove any member of the Legislature for malfeasance. No vote by the General Council to remove a member of the Legislature shall take place before such Legislator has been given reasonable notice of the impending action and has had a reasonable opportunity to be heard.

ARTICLE X—BILL OF RIGHTS

Section 1. Bill of Rights.

(a) The Ho-Chunk Nation, in exercising its powers of self-government, shall not:

(1) make or enforce any law prohibiting ' the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;
(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without the due process of law;
(9) pass any bill of attainder or ex post facto law;

ARTICLE XII—SOVEREIGN IMMUNITY

Section 1. Immunity of Nation from Suit. The Ho-Chunk Nation shall be immune from suit except to the extent that the Legislature expressly waives its sovereign immunity, and officials and employees of the Ho-Chunk Nation acting within the scope of their duties or authority shall be immune from suit.

Section 2. Suit Against Officials and Employees. Officials and employees of the Ho-Chunk Nation who act beyond the scope of their duties or authority shall be subject to suit in equity only for declaratory and non-monetary injunctive relief in Tribal Court by persons subject to its jurisdiction for purposes of enforcing rights and duties established by this constitution or other applicable laws.

HO-CHUNK NATION RULES OF CIVIL PROCEDURE

Rule 18. Types of Motions.

Motions are requests directed to the Court and must be in writing except for those made at trial. Motions based on factual matters shall be supported by affidavits, references to other documents, testimony, exhibits or other material already in the Court record. Motions based on legal matters shall contain or be supported by a legal memorandum, which states the issues and legal basis relied on by the moving party. The Motions referenced within these rules shall not be considered exhaustive of the Motions available to litigants.

Rule 19. Filing and Responding to Motions.

(A) Filing. Motions may be filed by a party with any pleading or at any time after their first pleading has been filed. A copy of all written Motions shall be delivered or mailed to other parties at least five (5) calendar days before the time specified for a hearing on the Motion. Motions for Extension of Time and More Definite Statement may be filed before the initial pleading.

(B) Responses. A Response to a written Motion must be filed at least one (1) day before the hearing. If no hearing is scheduled, the Response must be filed with the Court and served on the other parties within ten (10) calendar days of the date the Motion was filed. The party filing the Motion must file any Reply within three (3) calendar days.

(C)Motions for Expedited Consideration. Any Motion which requires action within five (5) calendar days shall be accompanied by a Motion for Expedited Consideration. The Motion for Expedited Consideration shall state the reasons why the Accompanying Motion should be heard prior to the normal time period, and what efforts the party has made to resolve the issue with the opposing party prior to filing the Motion for Expedited Consideration.

Rule 20. Hearings on Motions.

The Court may grant a hearing on a Motion at its own discretion or at the request of a party. A party requesting a hearing must (a) schedule the hearing with the Court and (b) deliver or mail notice of the hearing to other parties at least five (5) calendar days prior to the hearing. If the trial is scheduled to begin within the time allowed for a hearing, all responses shall be made by the time scheduled for commencement of the trial. Motions made within fourteen (14) calendar days of trial may be dismissed and costs and fees assessed against the moving party if the Court finds no good cause exists for failing to file the Motion more than fourteen (14) calendar days in advance of the trial.

Rule 27. The Nation as a Party.

(Bj Civil Actions. When the Nation is filing a civil suit, a writ of mandamus, or the Nation is named as a party, the Complaint should identify the unit of government, enterprise or name of the official or employee involved. The Complaint, in the case of an official or employee being sued, should indicate whether the official or employee is being sued in his or her individual or official capacity. Service can be made on the Ho-Chunk Nation Department of Justice and will be considered proper unless otherwise indicated by these rules, successive rules of the Ho-Chunk Nation Court, or Ho-Chunk Nation Law. Rule 58. Amendment to or Relief from Judgment or Order.

(A) Relief from Judgment. A Motion to Amend, or for relief from judgment, including a request for a new trial shall be made within ten (10) calendar days of the filing of judgment. The Motion must be based on an error or irregularity which prevented a party from receiving a fair trial or a substantial legal error which affected the outcome of the action.

(B) Motion for Reconsideration. Upon motion of the Court or by motion of a party made not later than ten (10) calendar days after entry of judgment, the Court may amend its findings or conclusions or make additional findings or conclusions, amending the judgment accordingly. The motion may be made with a motion for a new trial. If the Court amends the judgment, the time for initiating an appeal commences upon entry of the amended judgment. If the Court denies a motion filed under this rule, the time for initiating an appeal from the judgment commences when the Court denies the motion on the record or when an order denying the motion is entered, whichever occurs first. If within thirty (30) days after the filing of such motion, and the Court does not decide a motion under this Rule or the judge does not sign an order denying the motion, the motion is considered denied. The time for initiating an appeal from judgment commences in accordance with the Rules of Appellate Procedure.

(C) Motion to Modify. After the time period in which to file a Motion to Amend or a Motion for Reconsideration has elapsed, a party may file a Motion to Modify with the Court. The Motion must be based upon new information that has come to the party’s attention that, if true, could have the effect of altering or modifying the judgment. Upon such motion, the Court may modify the judgment accordingly. If the Court modifies the judgment, the time for initiating an appeal commences upon entry of the modified judgment. If the Court denies a motion filed under this rule, the time for initiating an appeal from the judgment commences when the Court denies the motion on the record or when an order denying the motion is entered, whichever occurs first. If within thirty (30) calendar days after the filing of such motion, and the Court does not decide the motion or the judge does not sign an order denying the motion, the motion is considered denied. The time for initiating an appeal from judgment commences in accordance with the Rules of Appellate Procedure.

(D) -Erratum Order or Reissuance of Judgment. Clerical errors in a Court record, including the Judgment or Order, may be corrected by the Court at any time.

(E) Grounds for Relief. The Court may grant relief from judgments or orders on motion of a party made within a reasonable time for the following reasons: (1) newly discovered evidence which could not reasonably have been discovered in time to request a new trial; or (2) fraud, misrepresentation or serious misconduct of another party to the action; or (3) good cause if the requesting party was not personally served in accordance with Rule 5(c)(l)(a)(i) or (ii); did not have proper service and did not appear in the action; or (4) the judgment has been satisfied, released, discharged or is without effect due to a judgment earlier in time.

Rule 60. Emergency Order, Temporary Restraining Order and Ex parte Temporary Restraining Order.

(A) Emergency Order. The Court may enter an Emergency Order without a hearing if it appears from the Complaint, affidavits and sworn testimony that irreparable harm will result without the Order. The Order will expire in thirty (30) calendar days unless extended by the Court for good cause. A hearing on the matters contained in the Order will be held prior to its expiration. The removal of a child from its residence by the Department of Social Services or equivalent agency and the imminent destruction of records or property essential to the case are examples of matters which may require an Emergency Order.

(B) Temporary Restraining Order. When it appears from a party’s pleading that a party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure the party, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.

(C) Procedure. The application for an injunction or restraining order made to the Court shall not be heard except upon notice to such other persons as may be defendants in the action unless the Court is of the opinion that irreparable loss or damage will result to the applicant unless a temporary restraining order is granted.

(D) Time. The Court may grant such temporary restraining order at any time before a hearing and determination of the application for an interlocutory injunction. However, such temporary restraining order shall be effective only for thirty (30) calendar days unless extended after notice and hearing thereon, or upon written consent of the parties or their attorneys.

Rule 61. Appeals.

Any final Judgment or Order of the Trial Court may be appealed to the Ho-Chunk Nation Supreme Court. The Appeal must comply with the Ho-Chunk Nation Rules of Appellate Procedure, specifically Rules of Appellate Procedure, Rule 7, Right of Appeal. All subsequent actions of a final Judgment or Trial Court Order must follow the HCN Rules of Appellate Procedure.

Rule 69. Who Is Bound by Judgment.

All parties and interested persons who are within the jurisdiction of the Court and who had notice of the case pending before the Court are bound by the judgment whether or not they appeared.

FINDINGS OF FACT

1. A meeting of the Ho-Chunk Nation General Council was held on Saturday, October 23, 2004 at the La Crosse Center in La Crosse, Wisconsin.

2. A quorum was present at all relevant times during the General Council meeting.

3. The General Council passed Resolution 25 by a majority vote.

4. General Council Resolution 25 provided for the removal of, “HCN legislator Dallas Whitewing from the HCM (sic) legislature for malfeasance—effective immediately and that Dallas Whitewing repay the HCN out of his per capita from the date of his being illegally elected as a HCN legislator.” See Defendant’s Exhibit 1.

5. On October 13, 2004, Dallas White Wing received a two (2) page letter from Timothy G. Whiteagle that had been served upon legislative secretary, Gayle Sather on October 12, 2004. See Affidavit of Dallas White Wing, Exhibit B.

6. At the October 23, 2004, General Council Meeting, the plaintiff, Dallas White Wing, was given five (5) minutes to respond to the removal proceedings.

7. The plaintiff, Dallas White Wing, was elected to the Ho-Chunk Legislature in 1995, 1999, and 2003.

8. A Special Election to replace the plaintiff as a member of the Ho-Chunk Nation Legislature has been scheduled for November 24, 2004.

DECISION

Shortly after its formation, the Court adopted a four-part test for the purpose of evaluating requests for preliminary injunctions. Joyce Warner et al. v. HCN Election Bd., CV 95-03-06, -09-10 (HCN Tr. Ct., July 3, 1995) at 4 (citing Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Salvano, 999 F.2d 211, 214-15 (7th Cir.1993)). The Ho-Chunk Nation Supreme Court later sanctioned the use of the incorporated federal standard. Coalition for a Fair Gov’t II v. Chloris A. Lowe, Jr. et al., SU 96-02 (HCN S.Ct, July 1, 1996) at 7 (quoting Tracy Thundercloud, v. HCN Election Bd., CV 95-16 (HCN Tr. Ct., Aug. 28, 1995) at 3); see also Anna Rae Funmaker v. Kathryn Doornbos et al., SU 96-12 (HCN S.Ct, Mar. 25, 1997) at 2-3. Consequently, the Court must deny a request for a preliminary injunction when a plaintiff neglects to articulate the standard and/or allege facts capable of satisfying the four-part test. HCN Election Bd. et al. v. Aurelia Lera Hopinkah, SU 98-08 (HCN S.Ct, Apr. 7, 1999) at 8-9; see also HCN R. Civ. P. 18, 60(B). The Court will apply that four part standard in the instant case.

I. Is There an Adequate Remedy at Law?

The Court must determine if the plaintiff, Dallas White Wing, can reasonably be compensated by money damages. If so, then he has an adequate remedy at law and the injunction must, be denied. Money damages cannot compensate the plaintiff. The harm the plaintiff seeks to prevent is the intangible harm that would result from the improper removal of an elected official. In addition, under the laws of the Ho-Chunk Nation, no monetary relief can be obtained from the General Council. The Court finds the plaintiff has no adequate remedy at law.

II. Does the Threatened Harm to the Plaintiff Outweigh the Harm of Issuing the Injunction?

The plaintiff seeks to prevent his alleged wrongful removal as a member of the Ho-Chunk Nation Legislature. If a Preliminary Injunction is granted, the plaintiff will be allowed to serve as legislator until further determinations in this proceeding, and the scheduled Special Election set for November 24, 2004 will be delayed. In addition, the implementation of the General Council action will be delayed. That is, the removal of the plaintiff, if ultimately found to be proper, would not take effect until a later time. These results are the potential harm that would occur if the Preliminary Injunction is granted.

If the Court does not grant the Preliminary Injunction, the Special Election will take place as scheduled on November 24, 2004, and one person will be elected to the Legislature. If the Court ultimately should find in favor of the plaintiff and determine that his removal was improper, the Nation would face the dilemma of having two elected legislators for the same seat. There is another harm that is prevented by issuing an injunction. That is the harm to the rule of law. Article IX § 1 of the Ho-Chunk Nation Constitution provides that, “[n]o vote by the General Council to remove a member of the Legislature shall take place before such Legislator has been given reasonable notice of the impending action and has had a reasonable opportunity to be heard.” If the Preliminary Injunction is not granted, the removal of the plaintiff will have been given effect without the Court having the opportunity to make a ruling interpreting this provision as it applies to the facts of this case. The Court finds that the threatened harm to the plaintiff outweighs the harm of issuing the injunction.

III. Does the Plaintiff Have a Reasonable Likelihood of Success?

The answer to this question depends primarily on the reasonableness of the notice given to the plaintiff and the reasonableness of his opportunity to be heard. The HCN Constitution, as quoted above, requires “reasonable notice” and “reasonable opportunity to be heard.” The plaintiff was given ten (10) days actual notice that five charges of malfeasance in office might be brought before the General Council. The letter containing the notice and signed by Ho-Chunk Nation member, Timothy G. Whiteagle, was not sent by certified mail, nor was it personally served upon the plaintiff. The notice was served upon the plaintiffs secretary. A nearly identical question was presented to the Court in Coalition for Fair Government II v. Chloris A. Lowe, Jr., et al., CV 96-22, (HCN Tr. Ct. Jan. 3, 1997). The Court stated, “only the General Council itself, and no individual members acting on their own initiative, may remove any member of the Legislature for malfeasance.” The Court further stated that when notices regarding removal proceedings were issued by such individual members, “the Notices issued were without authority.” Coalition for Fair Government II at 23. The Court finds that the holding of Coalition for Fair Government II regarding reasonable notice is compelling. There is a likelihood that the notice given to the plaintiff was unconstitutionally deficient. In addition, the plaintiff was given only five minutes at the General Council meeting to be heard on the issue of his removal. There is a likelihood that the Court would also find this period of time to be unconstitutionally deficient. The Court finds that the plaintiff does have a reasonable likelihood of success.

IV. Does Issuing the Injunction Serve the Public Interest?

An injunction is a temporary measure to allow the parties to fully present the facts and arguments necessary for a complete resolution of the controversy. If the requested injunction were not granted, the Special Election would take place and there would be the possibility of two elected officials serving the same office. To rush ahead with an election does not serve the public interest. The public has an interest in having the Constitution and laws of the Nation properly interpreted and applied. Granting the injunction as requested by the plaintiff will allow for a full presentation of the issues of this controversy so that the Court may be able to make the proper interpretation and application. The Court finds that issuing the injunction does serve the public interest.

IT IS THEREFORE ORDERED that the defendants are hereby enjoined as follows until further Order of the Court:

1. The defendants shall not prevent the plaintiff from performing his legislative responsibilities and from functioning as a member of the Ho-Chunk Nation Legislature.

2. The defendants shall take no action to fill the plaintiffs seat as a member of the Ho-Chunk Nation Legislature, including the conducting of a Special Election on November 24, 2004.

3. This injunction is preliminary in nature and will extend throughout the pen-dency of these proceedings or until rescinded or modified.

RIGHTS OF THE PARTIES

The parties retain the right to file a timely post judgment motion with this Court in accordance with HCN It. Civ. P. 58, Amendment to or Relief from Judgment or Order. Otherwise, “[a]ny final Judgment or Order of the Trial Court may be appealed to the Ho-Chunk Nation Supreme Court. The Appeal must comply with the Ho-Chunk Nation Rules of Appellate Procedure [hereinafter HCN R.App. P.], specifically [HCN R.App. P.], Rule 7, Right of Appeal.” HCN R. Civ. P. (51. The appellant “shall within thirty (30) calendar days after the day such judgment or order was rendered, file with the [Supreme Court] Clerk of Court, a Notice of Appeal from such judgment or order, together with a filing fee of thirty-five dollars ($35 U.S.).” HCN R.App. P. 7(b)(1). “All subsequent actions of a final Judgment or Trial Court Order must follow the [HCN R.App. P.l” HCN R. Civ. P. 61. 
      
      . The number designation, "25'' is the chronological number assigned to the resolution as it appears in the October 27, 2004 edition of the Hocak Worak.
      
     
      
      . The Ho-Chunk Nation Rules of Civil Procedure (hereinafter HCN R. Civ. P.) permit the Court to serve the Complaint upon the DOJ when the plaintiff/petitioner names as a party either a unit of government or enterprise or an official or employee being sued in their official or individual capacity. HCN R. Civ. P. 27(B).
     