Solicitor General Opinion 16-95

Solicitor Gen. Op. 16-95

Date: May 30, 1995

This Opinion is issued pursuant to 1142-MLC-3 § 16. 04 and in response to a Memo from Chief Justice Natalie Weyaus. (See Attached)

As a starting point the Court of Central Jurisdiction has all the judicial authority of the Mille Lacs Band except as otherwise limited by law. This is expressed in the new Judicial statute § 8 captioned Judicial Authority. Additionally this statute will be interpreted using first the Plain Meaning Standard and with the Intent of Band Assembly in mind.

The answer to your question of who is on the Court of Appeals is that the judges and justices holding office pursuant to 1143-MLC-4 remain on the Court of Appeals until August of 1996 pursuant to § 12.06 of the new statute. One of the reasons for passage of the new Judicial statute was to decrease the number of judges and justices. To add three new justices to the existing five would not help in accomplishing this goal. However, this does not mean that there couldn’t be additional appointments in the event of vacancies on the court.

The cases currently going to court should be heard by the District Court Judge. Realizing we do not currently have a District Court Judge to hear cases we have several options in the interim. First of all court operations must proceed. The courts refusal to hear cases until a District Court Judge is selected must not continue. There are many cases that need resolution and this is affecting the general welfare of the Mille Lacs Band and its people.

The new statute grants very broad authority to the court and having a Special Magistrate preside in cases is a simple solution in the interim until a judge is selected. The authority for a Special Magistrate to hear a case can be found in § 8.06. Additionally, one of the required duties of the Chief Justice is to determine whether a Special Magistrate might be needed, pursuant to § 16.06. Additionally Special Magistrates acting as justices and judges pursuant to § 8.06 will have § 20 judicial immunity from suit in the performance of their duties to the same extent as other justices and judges of the court.

In regards to existing justices presiding over District Court cases, though it is not preferred it can be done, especially with the consequences of not hearing cases so potentially hazardous. A crisis situation has arisen and the potential for a tragedy is a reality. The court has broad judicial authority as stated above. In fact all of the inherent judicial authority of the sovereign except as limited by law. More specifically § 8.06 refers to a “law trained” Special Magistrate. The existing justices fall into this category. They are law trained in that they all have attended several training seminars and have ample experience to fit a “law trained” standard.

Having justices hear trial level cases until a District Court Judge is selected is within the Court of Central Jurisdiction’s authority. This authority can be administered by the Chief Justice pursuant to the broad authority expressed in § 16.07 or by the court itself pursuant to § 8 and § 8.06. The judicial authority of the court is there unless expressly limited by law. Here there is not a limitation. This is a crisis situation and the court must continue.

In answer to the question of what happens to old court orders they are still in place unless otherwise restricted. Which some are. Obviously the court order presuming an individual is guilty contradicts 1140-MLC-1 § 11 called Presumption of Innocence. A broad statement as to which orders are valid is beyond the scope of this opinion and needs to be handled on an order by order basis. However they are presumptively val id. The court should however report the procedural orders it has adopted to Band Assembly and update existing rules pursuant to § 8.01 et seq.

In regards to your last question of cases having been heard where a judgment or order has not been signed it is appropriate for the presiding judge at the hearing if they have made findings and determinations. The judge need to sign the orders for the cases they heard. This will clear up their dockets and is more an administrative issue. The cases do not need to be reheard.

James M. Genia
Solicitor General