2013 SMTCA 1 January 28, 2013 Stockbridge-Munsee Community, On Behalf of its Division of Community Housing, Plaintiff-Appellee, vs. Vincent Ninham, Defendant-Appellant.
¶1 Under TRIBAL COURT CODE, §1.6(L)(3), the principal grounds for appeal are that the Trial Court made a serious error of fact or law and/or there was an abuse of discretion. The Tribal Court of Appeals (hereinafter the Appellate Court) contends that a serious error of law occurred. Specifically, the Court held a hearing on January 4, 2013, and it dealt with the eviction of the defendant/appellant. The defendant/appellant requested a continuance in order to obtain counsel; however, the Court denied a continuance.
¶2 The defendant/appellant received service of the complaint on December 12, 2012,1 and the Civil Summons indicated that he had twenty (20) days to respond. Civil Summons, 2012-CV-0061 (Stockbridge-Munsee Tribal Court, Dec. 11, 2012). The hearing dealt with the matter of the "eviction, and to determine whether the plaintiff was entitled to possession, the order for judgment shall be for the restitution of the premises to the plaintiff and for such other relief that the court orders in accordance with this Ordinance." STOCKBRIDGE-MUNSEE TRIBAL LAW HOUSING, § 46.6-10(A)(1). At that time, the Court found in favor of the plaintiff, the plaintiff requested a Writ of Restitution and the Court entered its Writ of Restitution. Id., § 46.6-10(A)(2), see also Compl. for Eviction at 2. The Court was then to "provide the defendant with reasonable notice and opportunity to be heard on the matter of the issuance of a writ." STOCKBRIDGE-MUNSEE TRIBAL LAW HOUSING, § 46.6-10(A)(3). The Court did not provide the defendant/appellant "with reasonable notice and an opportunity to be heard" regarding the issuance of the writ. Rather, the defendant/appellant had ten (10) days to vacate the premises or law enforcement was authorized to forcibly remove the defendant/appellant, along with his family, as well as all personal property. Writ of Restitution, 2012-CV-0061 (Stockbridge-Munsee Tribal Court, Jan. 4, 2013).
¶3 The law indicates that "[a]ll tenants shall be given fourteen [sic] (14) days from the date of service to quit possession of the premises in the case of non payment of rent." STOCKBRIDGE-MUNSEE TRIBAL LAW HOUSING, § 46.4-2(D). The Appellate Court does not believe that a tenant should be given less time in the instance of an eviction. Rather, the law allows that a Writ of Restitution may be delivered to law enforcement within thirty (30) days, and in other instances forty-five (45) days. Id., § 46.6-10(A)(2), but see§ 46.7-10. The Appellate Court believes that an extended timeframe should be given in these instances due to potential safety issues; the defendant/appellant, his mate, and his minor child should be given an opportunity to find alternate housing, particularly during harsh winter months and additionally, the defendant/appellant has added time to obtain counsel.
¶4 Given the abbreviated timeframe, coupled with the lack of an opportunity to be heard, the Appellate Court finds that the Tribal Court made a serious error of law. The Appellate Court therefore remands the instant case, in order for the Tribal Court to hold a hearing consistent with the contents of this judgment and furthermore, under STOCKBRIDGE-MUNSEE TRIBAL LAW HOUSING, § 46.6-12, the Appellate Court stays the Writ of Restitution, pending the outcome of the aforementioned hearing.
¶5 IT IS SO ORDERED this 28th day of January 2013, by the Wisconsin Tribal Judges Association panel composed of pro tempore judges herein serving as the Stockbridge-Munsee Court of Appeals in accordance with §1.6(L) of the Stockbridge-Munsee Code of Law.
Honorable Amanda L. Rockman, Judge Pro Tempore
Honorable Richard Ackley, Judge Pro Tempore
Honorable Candace Coury, Judge Pro Tempore
Footnotes
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1.
The record reflects that Scott Brown served a copy of a Complaint for Eviction and Civil Summons on the defendant/appellant on December 12, 2012. However, the defendant/appellant alleges that he received service on December 18, 2012. See Hearing (Court Recording Program, Jan. 4, 2013, 1:41:13 CST).
