Morongo Tribal Court Rules
Adopted March 10, 2010
By Motion # 031010-03
CHAPTER 1. PRELIMINARY RULES
Rule 1.1. Scope.
The Morongo Rules of Court apply to all civil cases in the Morongo Tribal Court, including general civil, family and juvenile cases unless otherwise provided by tribal law.
(Authority – MTCO § 2.2.08.)
Rule 1.2. Construction.
These rules shall be liberally construed in order that justice might be served and cases resolved as promptly and as reasonably as possible.
Rule 1.3. Amendment.
These rules may be amended from time to time, as needed, by the Chief Judge of the Court, with or without notice. Changes to these rules, however, shall not be applied so as to prejudice the rights of any party.
Rule 1.4. Citations.
(a) Rules of Court
The rules set forth in this title shall be referred to as the Morongo Rules of Court and shall be cited as “MRC Rule __.”
(b) Morongo Tribal Court Ordinance
The rules set forth in the Morongo Court Ordinance shall be referred to as the Morongo Tribal Court Ordinance and shall be cited as “MTCO § ___.”
Rule 1.5. Access to Court and Court Documents.
(a) Hearings
(i) As a general rule, court hearings shall be open to the public. The judge may, in his or her discretion, limit public access to a hearing as he or she deems appropriate in order to protect the interests of the parties and maintain judicial efficiency.
(ii) Hearings may not be photographed, recorded or broadcast. This rule does not prohibit court personnel from photographing or videotaping sessions for judicial education or publications.
(iii) Media coverage may be permitted only on written order of the judge.
(b) Court Records
(i) All records of the court except those relating to child protection proceedings shall be considered public records unless otherwise ordered by the court.
(ii) Requests for access to court records shall be made orally or in writing to the court clerk. The court clerk must supervise access to files and ensure that no court records are withdrawn from his or her custody.
(c) Child Cases – Special Proceedings and Rules
All child protection proceedings shall be considered confidential. No information about the case, including the names of the child and participating parties, shall be released to anyone who is not a party to the case, an employee or officer of the court, or an officer of the law, without a court order.
(Authority – MTCO §§ 1.4.05, 1.4.08, 2.2.08 & 3.6.01.)
Rule 1.6. Contempt of Court.
Any party, party’s attorney, party’s spokesperson, witness, or any other person in the courtroom who fails to maintain the respect due the court, who abuses or interferes with the process or proceedings of the court, or who engages in rude or offensive conduct in the courtroom may be held in contempt of court and subject to penalty, at the court’s discretion, in an amount which shall not be less than two thousand five hundred dollars ($2,500.00) and/or disbarment from the Morongo Tribal Court Bar.
Rule 1.7. Frivolous Filings.
The court may penalize any person who submits a frivolous filing or files a document(s) for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. The court may impose penalties if it finds a filing to contain intentional misstatements or statements that omit material facts or law that the person knew or should have known were relevant to the action.
(Authority – MTCO §§ 2.2.07, 2.2.0 & 2.1.03.)
CHAPTER 2. FORMAT OF PAPERS FILED WITH THE COURT
All papers filed with the court must be on 8½ inch by 11 inch standard quality white paper. Only one side may be used on all papers filed with the court. The court may, in its discretion, reject any papers that do not comply with the requirements set forth in this Chapter.
(Authority – MTCO § 2.2.08.)
Rule 2.2. Preparation of Documents for Court.
All papers filed with the court must be typed or neatly handwritten in blue or black ink. Typed papers must use 12-point standard font equivalent to Courier, Times New Roman or Arial fonts.
(Authority – MTCO § 2.2.08.)
The margins of each page should be approximately one inch from the edge of the paper. Substantial compliance with the format provided in Appendix A–1 will satisfy the requirements of this provision.
Each page must be numbered consecutively at the bottom. Substantial compliance with the format provided in Appendix A–1 will satisfy the requirements of this provision.
(Authority – MTCO § 2.2.08.)
Rule 2.4. Format of First Page.
Notwithstanding any other rule, the first page of each paper filed with the court must substantially comply with the format provided in Appendix A–1. Note: The contents of a pleading filed with the court shall be governed by MRC Rule 3.1. – 3.7.
(Authority – MTCO § 2.2.08.)
Exhibits may be filed with and attached to any papers filed with the court.
(Authority – MTCO § 2.2.08.)
CHAPTER 3. COMMENCING A COURT ACTION
“Pleadings” are the written documents filed with the court by the parties setting forth their respective claims and defenses. Pleadings include petitions, complaints, answers, cross-complaints and counter-complaints.
All pleadings submitted to the court must be signed under penalty of perjury by the submitting party or his or her respective attorney or spokesperson.
(Authority – MTCO §§ 2.1.01 & 2.2.08.)
Rule 3.2. Petition, Complaint and Answer.
A “petition” is the paper filed in an action involving child protection proceedings. A person/entity who files a petition is called a “petitioner.” The person/entity who answers or responds to the petition is called the “Respondent.”Refer to Chapter 11 for the specific requirements regarding petitions.
A “complaint” is the first paper filed in an action where a party wants the court to order something from another party. Any party may file a complaint with the court. A person who files a complaint is called a “plaintiff.” The person against who the complaint is brought is called the “defendant.”
All complaints submitted to the court shall be in the format provided in MRC Rule 2.1-2.6 and must include a caption (cover page) setting forth the following:
(i) Name of the court.
(ii) Names of the party(ies).
(iii) File number (if available).
(iv) Name, address and telephone number of the petitioner/plaintiff or his or her spokesperson or attorney and, if an attorney, his or her bar number and state of membership.
Substantial compliance with the format provided in Appendix A-1 will satisfy the requirements of this provision.
The complaint must include the following:
(i) A brief and complete statement of the facts.
(ii) A statement of the rights that the plaintiff claims have been violated.
(iii) A statement of the relief the party is seeking (i.e., what the plaintiff wants the court to do).
(e) Answer and Time for Filing Answer.
An “answer” is the paper filed by the person who has been served with a complaint and is the defendant in that action. A written answer or other response shall conform to the format provided in MRC 2.1-2.6 and must be filed and served within thirty (30) days from the date of service of the complaint and summons, unless the parties agree to extend the time for filing and service. Failure to respond in writing within the requisite time frame may result in a default judgment against the defendant.
The answer must respond to all statements contained in the complaint or petition. The answer should admit, admit in part, or deny each statement in the complaint or petition and set forth any affirmative defenses to the complaint or petition. Failure to respond to all statements in the complaint may result in a default judgment against the defendant.
(Authority – MTCO §§ 2.1.01 & 2.2.08.)
Rule 3.3. Counterclaims and Cross-Complaints.
A “counterclaim” is a claim that a defendant has against the plaintiff who is the opposing party. A party may file a counterclaim, including any claim the party has against an opposing party arising out of the same transaction or occurrence that is the subject of the opposing party’s claim. A counterclaim may not require the presence of third parties over whom the court cannot acquire jurisdiction. An individual commences a counterclaim by filing a cross-complaint containing all claims for relief and supporting facts with the court.
A “cross-claim” is a claim against a co-party. A cross-claim may be filed, including any claim by one party against a co-party (in other words, if there are 2 defendants, they may file cross-claims against each other) arising out of 1) the transaction or occurrence that is the subject matter of the original claim or counterclaim, or 2) any property that is the subject matter of the transaction.
(Authority – MTCO §§ 2.1.01 & 2.2.08.)
Upon filing of a complaint, the court clerk shall issue a summons to the defendant.
The summons shall direct the opposing party to answer the complaint or otherwise appear and defend against the complaint. The summons shall notify the defendant that failure to answer in writing or otherwise appear and defend may result in a default judgment against the defendant. A copy of the complaint must be attached to the summons.
(Authority – MTCO §§ 2.1.01 & 2.2.08.)
(a) Service by Plaintiff
“Service” means that the papers being filed in court must be provided to other parties in the lawsuit. The petition or complaint, summons and any date assignments provided by the court clerk must be served on the defendant or respondent by hand or by U.S. mail or other similar delivery service so long as the defendant or respondent has to sign for the package, unless the court orders otherwise. After service of the petition or complaint and summons, all other papers may be served via U.S. mail or similar delivery service.(b) Service by Defendant or Respondent
The defendant must serve any papers it is filing in court on a plaintiff by hand or by U.S. mail or by some other similar delivery service, unless the court orders otherwise.(c) Proof of Service
A “proof of service” is a document prepared by a party telling the court when and how papers were served on the other party or parties. The original of all proofs of service of the petition, complaint, summons, answer, counterclaims, cross-complaints or date assignments provided by the court clerk must be filed with the court clerk within sixty (60) days of filing the complaint. All proofs of service shall be signed under penalty of perjury. Substantial compliance with the format provided in Appendix A-2 will satisfy the requirements of this section.(d) Failure to Serve
If a party fails to serve and file a pleading as required under this rule, the court may dismiss the action in accordance with MRC Rule 8.3.(Authority – MTCO §§ 2.1.01, 2.1.02 & 2.2.08.)
Rule 3.6. Supplemental Pleadings.
(a) Supplemental Pleadings
A party may seek leave of the court to file a supplemental pleading during the course of an action. A supplemental pleading is a pleading where a party seeks to add to an earlier pleading either to correct a defect in the earlier pleading or address facts arising since the earlier pleading was filed.
(Authority – MTCO § 2.2.08.)
(a) Scheduling Order
The court shall work with the parties to determine appropriate filing and discovery deadlines and hearing dates, all of which shall be set out in a court order called a scheduling order. A scheduling order may also include any other matters appropriate in the circumstances of the case, including an order requiring the parties to mediate the dispute before the court hears the case.(b) Time for Order
The court shall issue a scheduling order within sixty (60) days after the complaint has been served on a defendant.(c) Notification of Dates
The court clerk shall provide all deadlines and date assignments to all parties in writing.
(Authority – MTCO § 2.2.08.)
Rule 4.2. Pre-Trial Conferences.
In any action, the court may in its discretion direct the parties, their attorneys or their spokespersons to appear before it for a conference or conferences before trial for any appropriate purpose under the circumstances of the case.
(Authority – MTCO §2.2.08.)
(a) Generally
“Discovery” means the obtaining of information by a party to a legal action from another party, other person, or organization. All parties have the right to have information which is relevant to his/her claim or defense provided by other parties and witnesses, unless the information is privileged pursuant to Rule 7.3(b).(b) Right to Discovery
Every party shall have the right to discovery in accordance with these Rules.(c) Court Discretion
Discovery may be expanded or limited by the court at its discretion. Any party seeking discovery beyond that which is automatically discoverable pursuant to Rule 5.3 shall submit, either in writing or orally during a discovery conference, requests for such discovery. The party must clearly state the information sought and the reason or reasons why it is relevant to the case and needed by the requesting party.
(Authority – MTCO §2.2.08.)
Rule 5.2. Discovery Conference.
The court may schedule a discovery conference upon request of any party or on its own. At the discovery conference, any party may submit requests for discovery. The court shall expand or limit discovery at its discretion.
Rule 5.3. Automatic Discovery.
Any party shall have the right to (1) take the deposition of any opposing party, and (2) serve upon any opposing party form interrogatories if such interrogatories are available from the court. A deposition is the taking of the testimony of another party under oath.
(Authority – MTCO §2.2.08.)
(a) Generally
A “motion” is a request made to the court to obtain an order directing some act to be done in connection with a pending case. Except for motions made by a party while court is in session, all motions must be filed with the court, must be in writing and should conform to the format requirements of MRC Rule 2.1. – 2.6. All motions shall state order the moving party is requesting and the reasons why the motion should be granted. Unless an ordinance or another court rule provides otherwise, motions may be filed with the court at the same time any pleadings are filed with the court or at any time after the first pleading is filed.(b) Noticed Motions
A “noticed motion” is a written motion that is served on all other parties, allowing those parties to review the motion and respond in writing. The party making the motion is called the “moving party.” The procedure for a noticed motion is as follows:(i) The moving party must file a motion and all supporting papers with the court at least ten (10) business days before the hearing to decide the motion.
(ii) The moving party must serve a copy of the motion and all supporting papers in person or by mail on all other parties at least ten (10) days before the hearing to decide the motion.
(iii) A response from any non-moving party to a noticed motion must be filed in court and served on the party making the motion no later than five (5) business days after the motion was served on the non-moving party.
(iv) At the court’s discretion, a motion may be heard on an expedited basis for good cause.
(c) Ex Parte Motion
(i) Generally
An “ex parte motion” is a motion that is not served on non-moving parties within the time provided by subsection (b) above because great or irreparable injury will result to the moving party if an order is not entered immediately. In other words, an ex parte motion is used when a party needs the court to consider the motion sooner than the hearing and/or less than ten (10) days before the hearing.(ii) Application
In addition to the requirements of subsection (a) above, all ex parte motions shall include a written statement, signed by the moving party, that declares the following: (1) the moving party has, within a reasonable time, informed the opposing party, the opposing party’s attorney or the opposing party’s spokesperson of when and where the motion would be made; (2) the moving party has made a good faith attempt to inform the opposing party, the opposing party’s attorney, or the opposing party’s spokesperson but was unsuccessful, specifying the efforts made to contact them; or (3) for some other specified reason, the moving party should not be required to inform the opposing party, the opposing party’s attorney, or the opposing party’s spokesperson.(iii) Standard
An ex parte motion shall not be granted unless it appears from the facts as shown by affidavit or verified complaint that great or irreparable injury will result to the moving party before the matter can be heard on a noticed motion.
(Authority – MTCO § 2.2.08.)
The court may schedule a hearing on a motion at the request of a party or at its own discretion. In the interest of efficiency and economy, hearings on motions will usually be held as part of other scheduled hearings. However, for good cause shown by a party or on its own motion, the court may schedule a separate motion hearing. All hearings for pre-trial motions shall take place at least fifteen (15) days before the commencement of trial.
(Authority – MTCO § 2.2.08.)
Rule 6.3. Telephonic Appearances.
A party may request to appear at a hearing by telephone or may request the court to conduct a hearing via the telephone. A party who is requesting to appear by telephone or is requesting that the court conduct a hearing via the telephone shall notify the court and all other parties at least three (3) days before the hearing. The court, on a showing of good cause, may permit a party to appear by telephone at a conference, hearing or other proceeding even if the party has not given notice pursuant to this Rule.
“Provisional relief” is a court-ordered remedy that protects a party to a case against loss and irreparable injury before the entire case can be resolved. In any action before the court, the court may, upon a motion by one of the parties, grant provisional or other extraordinary relief if it appears from the pleadings, affidavits and/or sworn testimony that: (1) the party seeking the relief is likely to prevail on the merits of his or her claim; and (2) the party seeking the relief will suffer great or irreparable injury if the provisional relief is not granted. In its discretion, the court may require the moving party to post a bond or provide other security before it grants an order for provisional relief. An order granting provisional relief on an ex parte basis shall automatically expire in thirty (30) days unless extended by court order.
Rule 6.5. Appellate Writs. [Reserved]
(Authority – MTCO § 2.2.08.)
A “trial” is the hearing of the case on its merits and is held after the parties have had a reasonable time to prepare their cases. The court shall work with the parties in setting the date for trial.
Although not required, a party may submit a trial brief describing what that party believes are the relevant facts, the evidence that will prove those facts, the applicable law and/or how the applicable law should be applied to the facts. If a party elects to provide a trial brief, it must be sent so that it is received by the court and the opposing party no less than ten (10) business days before the hearing and it shall be limited in length to no more than fifteen (15) pages, excluding any title page or table of contents or table of authorities, none of which are required. Either party may also submit reply briefs to the court and the opposing party within five (5) days before trial, subject to the same rules regarding trial briefs.
(Authority – MTCO § 2.2.08.)
(a) Federal Rules
The court shall consider, but shall not be bound by, the Federal Rules of Evidence.(b) Privileged Communications
Communications privileged in either a California federal court or a California state court shall be privileged in court. This includes, but is not limited to, the attorney-client, physician-patient, confidential marital communications and spousal privileges.
(Authority – MTCO §§ 2.2.02, 2.2.04 & 2.2.08.)
Rule 7.4. Applicable Law.
(a) Law to be Applied in Civil Cases
In all civil cases, the court shall apply Morongo tribal law. Where Morongo tribal law is silent, federal law shall apply. Where Morongo tribal and federal laws are silent, the court may, in its discretion, apply other law as provided in MTCO Section 22.02.(b) Custom
In any civil case where all parties are in agreement and where there is no Morongo tribal law, ordinance or policy to the contrary, the customs and traditions of the Tribe may be used exclusively to resolve the dispute. Where any doubt arises as to the customs and traditions of the Tribe, the court may, in its discretion, request the advice and input of impartial elders familiar with tribal customs and traditions. This advice may be provided either through formal testimony or any other procedure mutually agreed upon by the court and the parties.(c) Intertribal Agreements
Where the Tribe enters into an agreement pursuant to MTCO § 1.1.12 and any conflict arises between the law of the Morongo Tribe and the law of the other tribes or tribal organizations who are party to the agreement, the court may, in its discretion, apply the laws of the other tribes or tribal organizations.
(Authority – MTCO §§ 2.2.02, 2.2.03 & 2.2.08.)
Rule 7.5. Presence of Parties and Witnesses.
(a) Subpoena
A “subpoena” is a document that requires a witness to appear in court and give testimony or that requires someone to provide the court with documents or other items. Preparation and service of the subpoena is the responsibility of the party seeking to have the court issue the subpoena. Subpoena forms can be obtained from the Court Clerk. A party representing himself or herself may seek assistance of the court in the preparation and service of the subpoena. The court may, in its discretion, require such party to submit a subpoena to the court for approval prior to service.
(b) Time for Issuance of Subpoenas
Subpoenas shall be issued by the court within a reasonable amount of time before the hearing or trial.
A party shall use its best efforts to notify any witness who has been subpoenaed to appear in court. The party shall give sufficient prior notice of the hearing date so that the witness may make the necessary arrangements to appear.
If a person who has been properly served with a subpoena fails to appear or produce required documents or items, the case may be postponed or dismissed, judgment may be entered against the absent party if the person who failed to appear is a party, or the court may proceed to hold the hearing or trial. The person who fails to appear or produce documents may also be held in contempt of court and fined in accordance with MRC Rule 1.6.
(Authority – MTCO § 2.2.08)
The court may postpone a trial upon the request of a party, upon agreement of all parties, or at the court’s discretion for good cause and on such terms as the court deems appropriate.
(Authority – MTCO § 2.2.08)
Rule 7.7. Statement of Decision.
After the trial, the court shall render and announce its decision in accordance with MRC Rule 8.4.
(Authority – MTCO § 2.2.08)
A “default judgment” is a judgment granted by the court against a defendant who has failed to file a written answer or otherwise defend against a claim. Any party pursuing a claim may request a default judgment be entered through a noticed motion after the time to answer an initial pleading has expired. The court may enter a default judgment against any party who has been properly served with notice and who fails to answer an initial pleading in accordance with MRC Rule 3.2(d) and (e). The court shall enter a default judgment in accordance with MRC Rule 8.4.
(Authority – MTCO § 2.2.08.)
Rule 8.2. Summary Decision (Summary Judgment and Adjudication).
A “summary decision” is a judgment granted on a claim or defense where there is no genuine issue of fact for the court to resolve and the moving party is entitled to prevail on the claim or defense as a matter of law. Any time after thirty (30) days from the commencement of an action, any party may file a noticed motion for a summary decision. The court may render a summary decision in favor of the moving party on any claim or any defense where there is no genuine issue of fact for the court to resolve and where the moving party is entitled to judgment as a matter of law. If the court is able to render a decision on all issues in a case and no issues of fact remain for the court to resolve, the court shall enter a summary judgment in accordance with MRC Rule 8.4. If the court is unable to render a decision on all issues in the case, it shall enter a summary adjudication for those issues it can resolve and then try the remaining issues of fact.
(Authority – MTCO § 2.2.08.)
Rule 8.3. Dismissal of Actions.
A “dismissal” is the termination of an action or claim without further hearing by the court. A dismissal may be with “prejudice” or “without prejudice.” A dismissal without prejudice does not bar a party from refiling the same case with the court. A dismissal with prejudice bars a party from refiling the same case with the court.
A “voluntary dismissal” is dismissal of a lawsuit at the request of the plaintiff/petitioner or by agreement of all the parties. A plaintiff or petitioner may file a notice of voluntary dismissal with the court at any time prior to the filing of an answer by any defendant. Upon receipt of the notice of voluntary dismissal, the court shall dismiss the case without prejudice if an answer has not been filed with the court.
Any party may file a noticed motion to dismiss all or part of a case. The court may dismiss a claim or an entire case if: (1) the court lacks jurisdiction to hear a claim; (2) a plaintiff or petitioner moves to dismiss a claim it has filed after an answer has been filed by a defendant; (3) a party’s pleadings fail to establish a right of relief under the law, even assuming that all factual allegations made by the party’s pleadings are true; (4) a party fails to comply with court rules or an order of the court; or (5) there has been no action taken by any party regarding the case for nine (9) months. As an alternative to granting a motion to dismiss, the court may grant a party permission to amend its pleadings to allow the party to properly establish a right of relief under the law. The court may dismiss a case with or without prejudice.
(d) Court Motion for Dismissal
On its own motion, the court may move to dismiss an action. The court may dismiss an action for any reason provided in MRC Rule 8.3(b). When making its own motion, the court shall provide both parties with written notice that unless good cause is shown why the case should not be dismissed, the case will be dismissed in thirty (30) days. The court shall review any response by a party to such written notice. In its discretion, the court may set a hearing to adjudicate its own motion.
(Authority – MTCO § 2.2.08.)
A “judgment” is a final order of the court which disposes of an entire case or claim. The court shall enter all judgments into the record in written form. All judgments shall be in writing and must be entered within twenty (20) days after a trial or hearing or after the filing of any post-hearing or post-trial briefs. Default judgments, summary judgments and dismissals of actions shall be considered judgments and, as such, shall be entered into the court record in written form.
(Authority – MTCO §§ 2.2.08 & 2.3.01.)
Rule 8.5. Motion for Reconsideration.
Any party may file a noticed motion requesting the court to amend or reconsider any judgment entered pursuant to MRC Rule 8.4, including a request to the court to grant a new hearing or trial. A party requesting a motion for reconsideration must file the motion within ten (10) days from the entry of judgment. The court may deny the motion without a hearing or may schedule a hearing to adjudicate the motion. If the court grants the motion, it shall enter a new judgment into the court record pursuant to MRC Rule 8.4.
(Authority – MTCO § 2.2.08.)
A judgment will be considered a final judgment when the time for filing a motion for reconsideration has passed and no party files such a motion or when the court denies a motion for reconsideration. The court clerk shall enter the date when a judgment becomes final into the docket book of the court.
(Authority – MTCO § 2.2.08.)
In its discretion, the court may award litigation costs, attorney’s fees and pre-judgment interest to the prevailing party unless otherwise prohibited by tribal law.
“Trust assets” are land or money which are held in trust or restricted status for an Indian or an Indian tribe by the United States of America. The court may not use trust assets to satisfy any judgment of the court.
(Authority – MTCO §§ 2.2.08, 2.3.02 & 2.4.02.)
Rule 8.8. Satisfaction of Judgment.
Unless a party requests the court to enforce a judgment, the court shall take no action to satisfy or enforce a judgment. A party may request the court to enforce a judgment if the party against whom judgment has been entered fails to comply with the judgment within a reasonable time after the judgment becomes final.
(Authority – MTCO §§ 2.2.08 & 2.4.01.)
Rule 9.1. Appeal from Final Judgment.
Subject to the limitations set forth in the Morongo Tribal Court Ordinance and these Rules, any party who has a good faith belief that the court made a mistake in interpreting the law or made a decision that was not supported by substantial evidence and such error materially affected the outcome of his or her case may appeal a final judgment of the court.
(Authority – MTCO §§ 2.2.08 & 1.3.04.)
Rule 9.2. Limitations on Appeal.
Subject to the provisions of Rule 6.4, any judgment, ruling or order issued by the court which is not final may not be appealed.
Any party contesting a judgment for taxes owed to the Tribe may not appeal a tax decision until such party either pays the assessed tax or judgment or provides security equal to the amount of such assessment or judgment.
(Authority – MTCO §§ 2.2.08, 1.3.02 & 1.3.07.)
Rule 9.3. Filing and Notice of Appeal.
Any party who wishes to an appeal a final judgment of the court must file a written notice of appeal with the court within twenty (20) days after the judgment becomes final. Such notice of appeal should comply with the format provided in MRC Rule 2.1 – 2.6 and shall contain the reasons why the party appealing believes the court misinterpreted the law and such misinterpretation materially affected the outcome of the case.
Within five (5) days after a notice of appeal has been filed with the court, the clerk shall send a notification of appeal to the trial judge who heard the case and to all parties involved. The notification shall contain the names of the parties, the case docket number, the date of judgment, the nature of the judgment and the reasons for the appeal provided by the party appealing the final judgment.
(Authority – MTCO §§ 2.2.08 & 1.3.02.)
Upon filing an appeal with the court pursuant to MRC Rule 9.3, a party may make a motion to the trial judge that the judgment be stayed until the appeal is heard by the Appellate Department. In the event a stay is granted, the party filing the appeal must post a bond or other undertaking in an amount set by the court to secure compliance with the judgment, unless the court waives this requirement for good cause.
(Authority – MTCO §§2.2.08, 1.3.02 & 1.3.03.)
The Appellate Department shall hear all appeals from final judgments of the trial court. A panel consisting of an odd number of judges, not less than three (3) in number, shall hear any appeal. The panel shall render its decision by a majority vote and such decision shall be the decision of the Appellate Department.
(b) Schedule and Notice of Hearing
After consulting the members of the appellate panel, the clerk shall schedule the hearing no sooner than forty-five (45) days and no later than one hundred twenty (120) days from the date the notice of appeal is filed pursuant to MRC Rule 9.3(b). The clerk shall provide notice of the appellate hearing to all parties at least thirty (30) days before the appellate hearing.
(Authority – MTCO §§ 2.2.08, 1.3.01, 1.3.03 & 1.3.04.)
Although not required, any party to an appellate hearing may submit an appellate brief at least fifteen (15) days before an appellate hearing. Appellate briefs should conform to the format provided in MRC Rule 2.1 – 2.6. Unless leave of court is granted, appellate briefs may not be longer than fifteen (15) pages excluding the first page, table of authorities and table of contents. Appellate briefs should explain the legal reasons why the party believes the trial court either made a reversible error or did not make such an error. Either party may also submit reply briefs not less than five (5) days before an appellate hearing, subject to the same rules for appellate briefs.
(Authority – MTCO §§ 2.2.08 & 1.3.02.)
The appellate panel shall not hear any new testimony or allow any new evidence to be introduced at the appellate hearing. The appellate panel may only consider the record created during trial, written appellate briefs and oral arguments of the parties.
(Authority – MTCO §§2.2.08, 1.3.02, 1.3.04 & 1.3.05.)
Rule 9.8. Grounds for Reversal.
A final judgment of a trial court shall be reversed or modified only if the record indicates that the trial court incorrectly applied the law in a manner that materially affected the outcome of the case or if the final judgment is not supported by substantial evidence in light of the record taken as a whole. Substantial evidence is more than a mere scintilla of evidence and is enough evidence for a reasonable mind to accept the conclusions of the court. No judgment of a trial court shall be reversed where the record shows that the same result would have occurred even if the trial court had not made the alleged error(s).
(Authority – MTCO §§2.2.08, 1.3.02 & 1.3.06.)
An appellate panel may affirm a judgment, modify a judgment, reverse a judgment or vacate a judgment and remand the case back to the trial court for further proceedings. An appellate panel may also dismiss an appeal for failure to comply with the Morongo Tribal Court Ordinance or the Rules. After an appellate hearing, the appellate panel shall issue a written opinion explaining its decision. Unless an ordinance provides otherwise, the decision of an appellate panel is final and no further appeal is allowed.
(Authority – MTCO §§2.2.08, 1.3.02 & 1.3.08.)
CHAPTER 10. ADMINISTRATIVE RULES
The court clerk shall act as the code custodian for the court. The clerk shall certify as authentic all amendments, corrections, revisions and updates of the MTCO. The clerk shall keep an official indexed and written record of all certifications made. Certifications as to the authentic status of the law set out in the MTCO shall be made under oath and shall set forth the specific date upon which any amendment or repeal went into effect. All certifications shall be permanently attached to the document which is being certified and kept in the permanent files of the code custodian.
The court clerk shall be responsible for providing all copies of certified amendments, corrections, revisions or updates to the court and the Tribal Court Law Library.
The court clerk shall keep a journal of all customary law obtained and/or applied in any proceeding.
(d) Roster of Tribal Court Bar Membership
The court clerk shall maintain a roster of all persons admitted to the Tribal Court Bar.
(Authority – MTCO §§ 1.1.08, 1.4.03, 2.2.03 & 2.2.08.)
Rule 10.2. Judicial Conduct, Disqualification and Oath of Office.
All judges shall protect and promote the highest standards of judicial conduct. Judges shall uphold the integrity and independence of the judiciary, avoid impropriety and the appearance of impropriety, act with impartiality and diligence in performing his or her judicial duties, conduct quasi-judicial and extra-judicial activities in a manner so as to minimize the risk of conflict, and refrain from inappropriate political activity.
A judge may disqualify himself or herself, or be disqualified by a majority vote of the remaining judges, in any of the following situations:
(i) The judge has any direct or indirect personal or financial interest in the case;
(ii) The case involves a member of the judge’s immediate family, which includes the following individuals: parent, child, spouse, significant other, sibling, grandparent, grandchild, aunt, uncle, niece, nephew or spouse of any of the listed individuals, whether or not related to the judge by blood, adoption or marriage; and
(iii) Any other situation where the judge cannot be impartial.
(Authority – MTCO §§ 1.1.03(c), 1.2.06, 1.2.08 & 2.2.08.)
Rule 10.3. Appearance and Representation.
Any person eighteen (18) years of age or older who is legally competent may represent himself or herself in the MTC. Any person who is not at least eighteen (18) years of age, or who is not legally competent, must appear through a parent or legal guardian. The parent or legal guardian may designate a spokesperson or attorney on the minor/legal incompetent’s behalf. All persons appearing in the MTC shall have the right to be represented by a spokesperson or attorney who is a member in good standing of the TribalCourt Bar so long as the spokesperson or attorney is not currently an employee of the Tribe or a member of the Tribal Council.
(Authority – MTCO §§ 2.2.08 & 2.2.09.)
The court shall furnish to the Tribal Council monthly reports concerning all court actions involving children.
(Authority – MTCO §§ 2.2.08 & 3.3.01.)
The court shall be located on the Morongo Reservation at 12700 Pumarra Road, Banning, California 92220.
(Authority – MTCO § 2.2.08.)
A court proceeding may be transcribed by a certified court reporter who shall submit a certified copy of all recorded proceedings to the court clerk. Otherwise, proceedings shall be tape-recorded.
(Authority – MTCO § 2.2.08.)
The use of qualified interpreters is authorized in judicial proceedings involving the hearing impaired and/or non-English speaking individuals. All interpreters serving in a legal proceeding, whether certified or uncertified, shall abide by the following rules:
(i) An interpreter shall interpret or translate the material thoroughly and precisely;
(ii) An interpreter shall use the level of communication that best conveys the meaning of the source and shall not add or omit anything or interject the interpreter’s personal moods or attitudes;
(iii) No interpreter shall render services in any matter in which the interpreter is a potential witness, associate, friend or relative of an opposing party unless the opposing party agrees otherwise;
(iv) No interpreter shall render services in any matter in which the interpreter has an interest, financial or otherwise; and
(v) Except in the interpreter’s official capacity, no interpreter shall discuss, report or comment upon a matter before the court.
(Authority – MTCO § 2.2.08.)
Chapter 11. CASES INVOLVING CHILDREN
All child protection proceedings shall be considered and treated as confidential. No person shall give or release any information about the case, including the names of parties and of the child, to anyone who is not a party to the case, an employee or officer of the court, or an officer of the law, without a court order.
Upon the filing of a petition pursuant to subsection (c) below, the child who is the subject of the proceeding becomes a ward of the court and remains so until the court dismisses the case.
A child protection proceeding is started by filing a petition with the court. The petition may be filed by any person who has probable cause to believe that a child of the Tribe is a child in need of the court’s protection. Except in the case of an emergency removal, the petition, which may result in removal of the child, shall be filed after all family preservation/intervention services have been offered to the parent, guardian or custodian of the child.
(i) Petition Format
A petition should follow the same format provided in MRC Rule 2.1 – 2.6.
(ii) Contents of Petition
A child petition shall contain the following information:
A. Name, address and age of the child;
B. Names and addresses of the child’s parents and/or custodians;
C. Names and addresses of any other persons with an interest in the child;
D. Nature and extent of the child’s injury, abuse or neglect;
E. Any evidence of injury, abuse or neglect such as a medical report, witness report or a teacher’s report;
F. Any information that may be helpful in identifying the cause of the child’s injuries or neglect; and
G. A statement designating the tribe(s) of which the child is a member or is eligible for membership.
(i) Temporary Custody Order
Upon review of the petition and after the court has determined that it has jurisdiction, the court may issue an order directing that the child be taken into the custody of the Tribe and making the child a ward of the court if the court finds there is probable cause to believe the child is in need of protection. The court may make the child a ward of the court and leave the child in the physical custody of the parent, custodian or guardian if it finds that to do so would be in the child’s best interests.
(ii) Temporary Custody Placement
After taking the child into custody, the court shall place the child in a temporary custody placement that is the least physically and emotionally detrimental to the child. The following placement preferences apply unless a Tribal Resolution changes the order of placement preference or the court finds that changing the placement preference is in the best interests of the child:
A. an extended family member;
B. a licensed Indian foster home on or near the child’s reservation;
C. a licensed Indian foster home;
D. a licensed foster home;
E. another licensed facility; i.e., a facility operated by a licensed child welfare services agency; or
F. another suitable place, other than a facility for the care of children adjudicated wards of the court and which meets standards for shelter-care facilities established by other agencies.
If a court order is issued taking a child into the physical custody of the Tribe and making a child a ward of the court, the court shall issue a Notice to Appear in court to the parent(s), custodian and/or guardian of the child. The notified party shall appear at a hearing held within seventy-two (72) hours of the child being taken into custody. The parent(s), custodian and/or guardian shall have the right to call their own witnesses and to question witnesses called by any other party. If the court finds that it is in the child’s best interests to remain a ward of the court until a full hearing is held and a final custody order is entered by the court, it shall issue an order stating this.
The court may retain legal custody and return physical custody of the child to the parent(s), custodian or guardian if it finds that it is in the child’s best interests to do so. If the court finds it is in the child’s best interests to return legal custody of the child to the parent(s), it shall dismiss the case. The court may order the parent(s), guardian or custodian of the child to participate in such social programs or services as it deems appropriate or pursuant to recommendations of social services even if it dismisses the petition.
The court shall set a decision hearing within thirty (30) days of the temporary custody hearing. The parties may agree to have the hearing held at a later date or the court may order a hearing at a later date if the court determines there is good cause to do so. If the court finds that the child continues to be in need of protection, the court shall enter a judgment committing the child to the custody of the Tribe and making the child a ward of the court for a period of no longer than two (2) years. The court may order that the child remain in a foster home until further order. The court may order the child, parent(s), custodian or guardian to take educational classes, alcohol or drug treatment or other programs that the court believes are appropriate and likely to serve the best interests of the child or the purpose of reunifying the family.
A case plan shall be developed for each family subject to the jurisdiction of the court. The case plan shall include coordination of services, monitoring the family’s progress and reporting such progress to the court. A written case plan for each child under the jurisdiction of the court shall include a detailed service plan designed to reunite the family and to achieve placement in the least restrictive (most family-like) setting available and in close proximity to the parents’ home consistent with the best interests and special needs of the child. In the event that reunification is determined not to be in the best interests of the child, the family and/or the tribe, the service plan shall be designed to achieve other appropriate permanent placement goals that are in the best interests of the child, the family and/or the tribe.
Any report prepared by a social worker or case worker employed by the Tribe shall be admitted as evidence if such report is filed with the court and served on all parties at least five (5) days before any hearing conducted under this chapter. Any hearsay evidence contained in such report shall also be admitted as evidence including the statements or reports of any social worker, counselor, therapist, psychologist or psychiatrist used to create such report.
At the request of any party or at the court’s own initiative, a review hearing shall be held to determine the appropriateness of the child’s plan, whether the child should continue to remain a ward of the court, whether any conditions placed on the child or any party should be modified or if further conditions are appropriate. A review hearing shall be held prior to the time the Tribe’s custody expires according to the court’s order. If the court finds that it is in the child’s best interests for the child to remain a ward of the court, it shall enter another order committing the child to the custody of the court so long as the cumulative period that the child is a ward of the court does not exceed two (2) years without providing for a long-term foster care plan.
(j) Termination of Parental Rights
(i) Procedure
Any person or entity with a right to custody of a child may file a petition with the court requesting that parental rights to the child be terminated. If, after setting and holding the decision hearing, the court finds the best interests of the child would be served and the conditions necessary to terminate the parental rights exist, it shall issue a judgment terminating parental rights in whole or in part depending on what is in the best interests of the child. If it finds that the conditions necessary to terminate parental rights do not exist, it shall dismiss the case, or the court may authorize another case plan if it finds the best interests of the child will be served by avoiding the termination of parental rights.
(ii) Necessary Findings for Involuntary Termination of Parental Rights
The court may terminate parental rights to a child only if it finds beyond a reasonable doubt that: (l) if the parental rights are not terminated, the continued custody of the child by one parent is likely to result in serious emotional or physical damage to the child; or (2) the child has been subjected by his or her parent(s) to sexual abuse; or (3) the child has been abandoned; or (4) the parent(s) voluntarily consent(s) and sign(s) a waiver acknowledging termination of parental rights after full disclosure to the parent(s) in accordance with MTCO §3.2.02 (b) and MRC Rule 11.2(b).
(iii) Effect of Termination of Parental Rights
If a parent’s rights are terminated in whole, he or she no longer has any right to the child or any responsibility for that child. A termination in whole completely severs the parent-child relationship. A termination of parental rights in part only terminates the parent’s rights to legal and physical custody of the child and the responsibility to financially support the child.
(Authority – MTCO §§ 3.6. through 3.6.11.)
Recognizing the important bond between a parent and a child, the provisions of these rules will not apply to any child custody proceedings between parents.
(b) Voluntary Termination of Parental Rights
Any parent or guardian may voluntarily consent to the termination of his or her parental rights to any minor child. However, no voluntary consent will be valid unless sections (i) and (ii) below are met:
(i) Informed Consent to Termination of Parental Rights
In order to voluntarily terminate parental rights, consent must be given more than ten (10) days after the birth of the child, in the presence of a judge or designated representative of the court, and the parent or Indian custodian must sign a statement declaring that they were fully informed of the legal ramifications of their voluntary consent to termination of their parental rights.
(ii) Certification
A judge or designated representative of the court certifies in writing that the terms and consequences of the consent to termination of parental rights were fully explained in detail and were fully understood by the parent or Indian custodian and that the parent or Indian custodian knowingly and voluntarily relinquished their parental rights and the person relinquishing parental rights is informed that he or she has the right to be provided with an interpreter to explain the voluntary consent, its consequences and their right to withdraw the voluntary consent, the time limit to do so and the procedure for doing so.
(iii) Withdrawal of Voluntary Consent to Termination of Parental Rights
A voluntary consent to the termination of parental rights can be withdrawn anytime within ten (10) days of giving the voluntary consent. After ten (10) days, withdrawal can only be done with the court’s permission. The court shall give permission only if it finds that it is in the best interest of the child to do so.
(c) Commencement of Child Custody Case.
In all child custody proceedings (i.e., where the child has previously been removed from the custody of the child’s parent(s), guardian or custodian in an emergency removal), the court shall hear all the facts and evidence brought before it and shall consider the rights of all parties to the case, including those of the child. The court shall award custody on the basis of the best interests of the child and this shall take precedence over the rights of any other person or entity. The court may award shared custody if it finds that such shared custody is in the child’s best interests.
(i) Petition to initiate a Child Custody Case.
A petition is required in order to initiate a Child Custody case. The petition shall provide the following information:
A. The name, address and age of the child(ren);
B. The names, addresses, and phone numbers of the child’s parents and any custodians of the child;
C. The names and addresses and phone number of any other person or tribe with an interest in the child;
D. The nature and extent of the child’s injury, abuse or neglect;
E. Any evidence of injuries, abuse or neglect (doctor’s reports, public health nurse report, health assistance report, teacher’s report, report of witness to injury, abuse or neglect, etc.);
F. Any information that may be helpful in identifying the cause of the child’s injuries or neglect; and
G. A statement designating the tribe(s) of which the child is a member or is eligible for membership.
(ii) Temporary Custody Order
After the court determines that it has jurisdiction, the court may issue a court order directing that a particular person or persons have temporary physical custody of the child until a Decision Hearing can be held. The court may issue such an order if requested and after holding a hearing in which the parties shall participate and may have witnesses and present evidence, so long as such witnesses and evidence is within the permissible limits established by these rules.
(iii) Decision Hearing
The court shall set a Decision Hearing within thirty (30) days of the temporary custody hearing. The parties may agree to have the hearing held at a later date. The court may order a hearing at a later date if the court determines there is good cause to delay the hearing. After the hearing, the court shall issue a custody order. In deciding who should have custody of a child and what visitation with the child is appropriate for those people not awarded physical custody, the court shall take into consideration the following factors:
A. The child’s wishes if the child is twelve (12) years old or older (and in asking the child’s wishes, the court will not place the child under undue mental or emotional pressure); the child’s understanding of the nature of the proceedings; and the ramifications of declaring his or her preferences.
B. The love and affection existing between the child and the persons requesting custody.
C. The person best able to meet the needs of the child including educational, physical, emotional, manual, religious, cultural and any other special needs.
D. The stability of the home environment likely to be offered by each person requesting custody of the child.
E. The advantages of keeping the child in the community where the child resides.
F. The most time the child could spend with each person to whom the child has an emotional tie, considering the actual time spent with such person, the physical locations of such persons to one another, the enrollment of the child in a school near one of the persons and the desirability of the child remaining at that school.
G. The person(s) requesting custody most apt to encourage a loving relationship between the child and the other persons to whom the child has emotional ties.
H. Any evidence of domestic violence, child abuse or child neglect in the proposed custodial household or a history of violence between the persons requesting custody;
I. Any evidence of substance abuse by the proposed custodian or anyone living with the custodian which would or does directly affect the emotional or physical well being of the child; and
J. Any other facts or evidence the court determines to be relevant to the custody determination.
(iv) Custody Order
The court may order that a party or parties allow visitation, supervised or non-supervised, to the parties not given physical custody and if the court finds it would be in the best interests of the child to maintain those relationships.
(v) Change of Order
Any extended family member of the child’s tribe may request that an award of custody of a child or visitation with a child be modified. If, after a hearing, the court determines that the change would be in the best interests of the child, it shall enter such an order.
(Authority – MTCO §§ 2.2.08, 3.2.02, 3.7.01 through 3.706.)
The court may, in its discretion, issue an order requiring a Tribal member parent to pay for the support of his or her minor child or children during the pendency of child protection or child custody proceedings. “Support” for purposes of this provision includes, but is not limited to, (1) payments made for foster or alternative care of the child or children, and (2) payments made for services provided by the Tribe’s social services division. In the event that the Tribal member parent fails to satisfy a support order, the court may further order that the Tribal member parent’s per capita payments be garnished on a periodic basis until all sums due and owing pursuant to the support order have been satisfied.