By Ken Davison
Within days after Judge Jane Freeman issued an injunction against two defendants - the Mohegan Tribe and the Council of Elders, the game of musical chairs began and it is now the Judge who is the respondent (kind of like a defendant), the Mohegan Tribe is the petitioner (kind of like a plaintiff) and the Council of Elders are the judges (judges). And the original Plaintiff in the case, Tribal Member Brokenwing, is on the sidelines as an interested party.
The tribal court case that triggered the act of musical chairs, in part, is over whether the Council of Elders, acting in their role as a Good Standing Panel, violated Brokenwing's due process during his good standing hearings. Last Wednesday, Judge Freeman said that Brokenwing is likely to win his court case and issued an injunction to halt the good standing punishment and its publication until the court case is resolved. The judge focused on only one of the many alleged due process violations - denying Brokenwing the opportunity to cross-examine witnesses at his good standing hearing.
"The right to cross-examine witnesses in a judicial or quasi-judicial proceeding has been recognized as an essential component of due process in both the Tribal and non-Tribal context. While courts have held that due process is a flexible standard and calls for such procedural protections as the particular situation demands, this Court is not aware of any decision which has held that the right to cross-examine witnesses is not an essential component of due process in all quasi-judicial and judicial proceedings, nor have the Defendants provided the Court with any such cases," Judge Freeman wrote in her injunction decision last Wednesday, citing a Mohegan Gaming Disputes Court case (Pinero v. Office of the Director of Regulation) and a Mashantucket Pequot Tribal Court case (Grossi v. MPGE).
Although Judge Freeman opened both Mashantucket and Mohegan court systems when they were first established, she was not the judge of either of the two above cases she cited in her injunction decision.
The Council of Elders, in addition to their legislative functions, is also the judiciary's supreme review body for the tribal court system. It is as the supreme review body that they will be sitting when Judge Freeman is to explain her courtroom decision of last Wednesday.
Until that hearing takes place, the Council of Elders, acting as the supreme review body, issued their first order ever, which was to stop the proceedings of Brokenwing's court case in which they are one of the defendants.
The motion that set off the musical chairs was a petition signed by the Tribe's attorney general Helga Woods last Friday that seeks to overturn Judge Freeman's injunction order of last Wednesday and to halt any other decision by the Judge Freeman in Brokenwing's court case that is contrary to the Council of Elder's good standing determination.
Neither of the defendants - the Mohegan Tribe or the Council of Elders - objected to the Tribal Court's jurisdiction or decisions until the latest injunction decision went against them.
The Tribe's petition of last Friday to the Council of Elders which seeks to overturn Judge Freeman's decision is called a "petition for order of superintending control, for stay of and to vacate tribal court order and request for immediate hearing."
Under the Mohegan Court System Ordinance, the "Council of Elders shall not sit as the highest level of judicial review over claims against its own (legislative/regulatory) body. Therefore, any claim against the Council of Elders shall proceed in the regular fashion until it reaches the Court of Appeals. From this point, if an aggrieved party still wishes to proceed to the final level of appeal, a Special Panel (of three judges) is established to hear such claims."
Although the hearing date has not yet been set it is expected that arguments regarding the Council of Elders' ability to hear the case will be the first order of business conducted at that hearing.
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