Chapter
II - BAY MILLS COURT OF APPEALS
201. CREATION OF THE BAY MILLS COURT OF APPEALS. There
shall be a Bay Mills Court of Appeals consisting of the three appeals
judges. Any number of judges may be appointed as reserve judges, who
shall be available to serve on the Court of Appeals to hear a particular
appeal for which an appellate judge is disqualified or otherwise unable
to sit. The panel shall hear appeals allowed by this Code.
202. JURISDICTION OF COURT OF APPEALS. The jurisdiction of
the Court of Appeals shall be.
A. Exclusive
jurisdiction to review the decisions of the Bay Mills Indian Community
Tribal Court as provided in this Chapter.
B. Exclusive jurisdiction to review the decisions of any tribal licensing
entity as provided in this Chapter.
203. DISQUALIFICATION OF APPELLATE JUDGE. An appellate
judge is disqualified to sit on the appeal of any case in which:
A. The
judge has a direct interest in the outcome;
B. The
judge was a witness at the trial;
C. The
judge served on the jury panel of the trial; or
D. The
judge is so related to either the appellant or respondent, including
an individual who serves as a member of a tribal licensing entity,
as to bring into question the judge's ability to render an impartial
decision.
204. WHO MAY APPEAL.
A. Decisions
of Tribal Court. Any person adversely affected by a decision of
the Tribal Court in a civil case may appeal. Any party in a criminal
case, except the prosecution, may appeal a judgment or sentence; the
prosecution may appeal a decision to the extent that it raises a questions
of law, rather than of fact.
B. Decisions
of Tribal licensing Entity. A person whose request for a license
issued by a tribal licensing entity is denied, or whose license is
thereafter restricted, suspended, or terminated by the licensing entity,
may appeal the decision to the Court of Appeals
205. SUBJECT OF APPEAL. An appeal is properly before the
Court of Appeals if it concerns:
A. A
final order or judgment of the Tribal Court; or
B. An
order of the Tribal Court denying a request for a substitute judge;
or
C. An
order of the Tribal Court affecting a substantial right and which
determines the actions and prevents a judgment from which an appeal
may be made; or
D. A
decision of a tribal licensing entity which denies, terminates, suspends
or restricts a license required by tribal law or regulation and which
the person seeking the license seeks review.
206. SCOPE OF COURT OF APPEALS REVIEW. In reviewing a
matter on appeal, the Court of Appeals may:
A. Increase
or decrease a sentence in a criminal case;
B. Affirm,
modify, vacate, set aside or reverse any judgment, decree or order
of the Tribal Court;
C. Remand
the case and direct entry of any appropriate judgment, decree or order,
or require further proceedings in the Tribal Court which are determined
to be just and equitable under the circumstances; or
D. Affirm,
modify, vacate, set aside, reverse, or remand for further proceedings
if determined to be just and equitable under the circumstances any
decision of a tribal licensing entity.
207. TIME PERIOD TO APPEAL.
A. Civil
Cases. An appeal to the Court of Appeals in civil cases shall
be made not later than twenty (20) days after entry of the written
judgment or order of the Tribal Court.
B. Criminal
Cases. An appeal to the Court of Appeals in criminal cases shall
be made not later than thirty (30) days after the issuance of the
written or oral judgment or order of the Tribal Court.
C. License
Decisions. An appeal to the Court of Appeals of a decision relating
to a license by a tribal licensing entity shall be made not later
than ten (10) days after the decision is issued.
D. Cross-Appeals.
If one party has filed an appeal of a Tribal Court decision within
the requisite time period, the other party may file a notice of appeal
within fifteen (15) days of receipt of a written notice of the initial
appeal.
E. Untimely
Appeals. Subject to the exception contained in (F) below, failure
to file an appeal within the time period provided in this Section
deprives the Court of Appeals of subject matter jurisdiction to hear
the appeal. Late appeals shall be denied filing by the Clerk.
F. Grounds for Granting Late Appeal. The Court of Appeals may,
at its discretion, grant leave to appeal after the expiration of the
time allowed for filing, only upon the showing by the appellant, supported
by a notarized statement, that there is merit in the basis for appeal
and that late filing was not due to appellant's negligence.
208. NOTICE OF APPEAL; PROCEDURE.
A. Filing
Required. An appeal is made by filing a notice of appeal with
the Clerk. The notice shall be served on the other party simultaneously
with filing, and proof of such service shall be moo with the notice.
B. Content
of Notice of Appeal. The notice of appeal shall bear the caption
and case number of the case in Tribal Court and shall be labeled "Notice
of Appeal." For appeals of licensing decisions, the Notice of
Appeal shall identify the appellant and the tribal licensing entity
as the respondent. All notices of appeal shall state the date, decision-maker,
and the content of the decision appealed; if such decision is in written
form, a copy of the decision must be attached to the Notice. The Notice
shall further include a brief statement of the reasons for appeal
and the desired outcome of review by the Court of Appeals. The appellant,
or an advocate appearing on behalf of appellant, shall sign and date
the Notice.
C. Docketing
of Appeal. Upon receipt of the Notice of Appeal and any filing
fee required by the Court of Appeals, the Clerk shall docket the appeal
and notify the appellate judges of the pending appeal
209. SERVICE OF NOTICE OF APPEAL. A copy of the Notice
of Appeal shall be served by appellant on all other parties by first
class mail. Proof of
service shall be filed with the Clerk simultaneously with the Notice
of Appeal.
210. FEE FOR APPEAL FILING. The Clerk shall collect from
each party who files an appeal a filing fee, the amount of which shall
be established by the Court of Appeals. The established fee may be waived
by order of the Court of Appeals when the appellant submits with the
Notice of Appeal an affidavit of indigence.
211. BOND. Upon notification of the filing of an appeal
of a civil judgment or order, the Tribal Court may order the filing
of a bond or cash equivalent
thereof in an amount sufficient to guarantee payment or satisfaction
of the judgment, including costs, in the event that judgment is affirmed
on
appeal. The Court of Appeals may waive this requirement upon the petition
of appellant.
212. EFFECT ON DECISION BY FILING APPEAL. The filing of
an appeal does not cause an automatic stay of the decision appealed.
A motion seeking a stay shall be addressed to the Court of Appeals before
or after the filing of the Notice of Appeal.
213. RECORD OF APPEAL. Upon receiving the Notice of Appeal,
the Clerk of Tribal Court shall compile for transmittal to the Court
of Appeals the record of the case, consisting of:
A. Pleadings,
Orders and Judgments. All written documents filed with the Tribal
Court, including pleadings, reports, notices, depositions, orders
and judgments, shall constitute the written record of the case on
appeal. The Clerk of Tribal Court shall certify the contents of the
records as true, correct, and complete as part of the transmittal
to the Court of Appeals. In an appeal of a licensing entity decision,
any written or oral record of the decision-making process by the licensing
entity shall be transmitted within twenty (20) days of the service
of the Notice of Appeal to the Court of Appeals.
B. Hearing
Transcript(s). The Clerk of Tribal Court shall also prepare a
transcript of the proceedings in Tribal Court, the cost of which shall
be borne by the appellant. The transcription fee shall be paid by
appellant, unless it is waived by order of the Trial Court pursuant
to appellant's petition for waiver of costs and fees. The appellant
may specify, in writing, to the Clerk which proceedings, or parts
thereof, is needed for the Court of Appeals to review the Tribal Court's
decision. If only portions of the proceeding are requested, any other
party may request within fifteen (15) days of appellant's request,
transcription of any other portion, and shall pay the costs of its
preparation to the Clerk. If the proceedings of the licensing entity
are recorded, a transcription shall be provided to the Court of Appeals
upon receipt by the licensing entity of an order of the Court requiring
its transmittal.
C. Notice
of Record Transmittal. The Clerk shall file a notice of transmittal
of the record, identifying each item included therein, together with
a copy of any transcript, on each of the parties. The recording party
of proceedings of the licensing entity shall likewise file a notice
of transmittal.
D. Effect
of Transmittal. No appeal issue may be considered by the Court
of Appeals until the notice of transmittal has been filed with the
Clerk.
214. BRIEFING. Parties are encouraged, but not required,
to file written briefs concerning the issue(s) on appeal in order to
assist the Court of Appeals in its review. If briefing is made, the
following requirements apply:
A. Time
to File Brief. If appellant wishes to file a brief he/she must
do so within thirty (30) days of receiving notice of transmittal of
the record to the Court of Appeals. If respondent wishes to file a
brief, he/she must do so within fifteen (15) days of receiving appellant's
brief, or within forty-five (45) days of receiving notice of transmittal
of the record, whichever should first occur. A reply brief may be
submitted by appellant within fifteen (15) days of receiving respondent's
brief.
B. Format
of Briefs. Briefs shall be typewritten, double-spaced, on white
paper which is no more than 81/2 by 11 inches in size. No brief shall
exceed fifty (50) pages in length. Four (4) copies of each brief shall
be submitted.
C. Content
of Briefs. The first brief to be filed shall contain a short statement
of the cases' history and a listing of the issues presented on appeal
and how, if at all, the issues were decided. All briefs shall contain
an argument and a conclusion, stating clearly the precise action sought
from the Court of Appeals.
215. ORAL ARGUMENT. Unless waived by appellant and respondent,
all appeals will be scheduled for oral argument after briefing is concluded.
The length of argument shall be set by the appellant judges hearing
the appeal, and shall be stated in the notice scheduling argument.
216. MOTIONS BEFORE THE COURT OF APPEALS. Any party requesting
action by the Court of Appeals on a matter unrelated to its decision
on a pending appeal, such as waiver of filing fee or stay pending appeal,
shall file a motion with the Clerk of the Court of Appeals clearly stating
the
action requested and the reasons why the Court should do what is asked
of it. Any motion shall be served on all other interested parties, who
may file within five (5) days of receipt a response with the Court indicating
agreement or disagreement with the Court motion. The Court of Appeals
shall issue a written order disposing of any motion filed.
217. STANDARD OF REVIEW. In deciding an appeal, the Court
of Appeals shall apply the following standards:
A. Finding
of fact by a judge or a tribal licensing entity shall be sustained
unless clearly erroneous.
B. A
finding of fact by a jury shall be sustained if there is any credible
evidence to support it.
C. A
factual inference drawn by a judge, licensing entity, or jury shall
be reviewed as a finding of fact if more than one reasonable inference
can be drawn from the fact(s).
D. Any
finding, whether explicit or implicit of witness credibility shall
be reviewed as a finding of fact.
E. A
conclusion of law shall be reviewed by the Court without deference
to the Tribal Court's determination or that of the tribal licensing
entity, i.e., review is de novo.
F. A
stipulated or uncontested fact is reviewed as a conclusion of law.
G. An
unambiguous contract term is reviewed as a conclusion of law.
H. A
matter which is a mixture of law and fact is reviewed by the standard
applicable to each element.
I. A
matter which is determined within the Tribal Court discretion shall
be sustained if it is reflected in the record that the Tribal Court
exercised its discretionary authority and applied the appropriate
legal standard to the facts. The same standard of review shall apply
to decisions of a tribal licensing entity.
J. A
sentence and the imposition of fine, forfeiture, and/ or other penalty,
excluding the assessment of damages, shall be reviewed as a discretionary
determination of the Tribal Court or tribal licensing entity.
K. A
matter committed to the discretion of the Tribal Court or tribal licensing
entity shall not be subject to the substituted judgment of the Court
of Appeals.
218. ISSUES PRESERVED ON APPEAL. In deciding an appeal,
the Court of Appeals shall consider issues pursuant to these requirements.
A. Unless
a miscarriage of justice would result, the Court of Appeals will not
consider issues that were not raised before the Tribal Court or a
tribal license entity.
B. An
issue raised before the Tribal Court, but not argued either by brief
or orally, shall not be reviewed by the Court of Appeals.
C. No
issue which is moot at the time of argument shall be decided by the
Court of Appeals unless it is capable of repetition yet likely to
evade appellate review, due to its nature.
D. Facts
which are not in the record shall not be presented in any manner to
the Court of Appeals, and if presented, shall not be considered by
that Court.
219. CONTENT OF ORDER OR JUDGMENT APPEALED. Orders and
judgments subject to an appeal shall contain the following, in order
to facilitate justice by the Court of Appeals.
A. In
any proceeding tried to a judge without a jury, the judge shall make
separate findings of fact and conclusions of law. The Tribal Court
may do this orally on the record in open court, or issue a written
opinion and order.
B. In
any civil matter tried to a jury, the jury shall make a special verdict
on each issue of fact placed before it.
C. In the absence of findings of fact by the Tribal Court or the tribal
licensing entity, the Court of Appeals may affirm the judgment if
supported by the record, reverse the judgment if the record does not
support it, or remand the case for the issuance of findings and conclusions.
220. DECISIONS OF THE COURT OF APPEALS. All decisions
of the Court on an appeal, and all determinations of motions, shall
be made as follows:
A. Panel
Majority. Any decision of the Court of Appeals shall be made by
the majority of the judges on the panel. If no majority is reached
on a decision, the order or judgment of the Tribal Court or tribal
licensing entity is upheld.
B. Content.
In the exercise of its jurisdiction the decision of the Court of Appeals
shall be in written form, which shall state the facts, the issues
to be decided, the rules of law applied, and the reasoning of the
Court. The panel shall determine which of its members in the majority
shall write the decision.
C. Order.
The Court shall issue an order conforming with the decision, which
shall direct the Tribal Court or the tribal licensing entity in its
disposition of the case which is the subject of appeal. Such order
shall include the continuance or termination of any order relating
to a stay and the posting of bond.
D. Dissenting
Opinions. Any member of the panel who disagrees with the majority's
decision may issue a written dissent, which shall comply with the
content requirements of subsection (B), above.
E. Distribution
of Decision. Within two days of issuance, the Clerk of the Court
of Appeals shall transmit by first class mail a copy of the decision
to each interested party and to the Clerk of Tribal Court, and shall
inform all of the date on which the decision was filed.
F. Official
Reporter. Any decision which determines an issue of law shall
be reported to the official reporter of the Court of Appeals. The
Indian Law Reporter is the Court's official reporter.
221. REQUEST FOR RECONSIDERATION OF DECISION. A request
for reconsideration may be filed with the Clerk of the Court of Appeals,
if made within fourteen (14) days of the decision's filing with the
Clerk A copy of the request must be served upon all other parties and
on the Tribal Court.
A. Content.
The request must identify the exact element of the decision which
is to be reconsidered, the reasons for the request, and any authority
upon which the party relies.
B. Response.
Any other party may file a response to the request within ten (10)
days of receiving it.
C. Effect
of Request. A request for rehearing shall stay all proceedings
until the Court of Appeals issues it s decision on the matter.
D. Determination.
The panel which issued the decision which is the subject of the request
shall also decide the request for rehearing. The request may be granted
or denied, and if granted, the parties are entitled to brief under
Section 214 and oral argument under Section 215.
222. REMAND. The Clerk of the Court of Appeals shall transmit
the entire record of the Tribal Court, together with the decision and
order of the Court of Appeals, to the Clerk of Tribal Court or the tribal
licensing entity within fifteen (15) days of the deposition.
223. RULES OF COURT. The judges of the Court of Appeals
may make and amend such rules as are deemed by them appropriate for
the proper and efficient administration of the Court. Such rules shall
be filed with the Clerk of the Court of Appeals, and made available
as issued to all persons admitted to practice.
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