HO-CHUNK NATION

RULES OF APPELLATE PROCEDURE

 

INTRODUCTION

Rule 1. Scope of Rules

Rule 2. Composition of the Supreme Court

Rule 3. Conflict of Interest

Rule 4. Recusal

Rule 5. Traditional Advisors

Rule 6. Jurisdiction and Scope of Review

Rule 7. Right of Appeal

Rule 8. Filing Fees and Costs

Rule 9. Computation of Time

Rule 10. Time for Filing and Service of Notice of Appeal

Rule 11. Time for filing Briefs and Memoranda

Rule 12. Form of Briefs, Memoranda or Statements

Rule 13. Record on Appeal

Rule 14. Oral Argument

Rule 15. Opinion of the Supreme Court

Rule 16. Entry and Form of Judgment

Rule 17. Interest on Judgments

Rule 18. Frivolous Appeals

Rule 19. Appeals to General Council

 

Rule 1. Scope of Rules 

a. These rules, adopted by the Supreme Court of the Ho-Chunk Nation, shall govern the appeal process. Where necessary to promote fairness and justice to parties, the Supreme Court may look to Ho-Chunk customs and traditions and the Federal Rules of Appellate Procedure for guidance in applying and supplementing these rules.

b. These rules shall be liberally construed to secure a just and speedy determination of every appeal.

 

Rule 2. Composition of the Supreme Court 

a. The Supreme Court of the Ho-Chunk Nation shall consist of the Chief Justice and two (2) Associate Justices elected in accordance with the Constitution of the Ho-Chunk Nation.

b. When an elected Justice is not available to hear an appeal, a substitute Justice shall be appointed in accordance with the Constitution of the Ho-Chunk Nation, Article VII, Section 13.

c. All appeals shall be heard by a full court.

 

Rule 3. Conflicts of Interest 

Any Justice with a direct personal or financial interest in the appeal before the Supreme Court shall recuse. All such conflicts or potential conflicts of interest shall be disclosed to all parties in the appeal at the earliest possible date and for the record.

 

Rule 4. Recusal 

A Justice may recuse him/herself or a party may request recusal of a Justice by Motion to the Chief Justice of the Supreme Court with Notice given to all parties. Notice shall also be given to the Legislature of any vacancy due to recusal along with a request to appoint a Justice pro tempore to fill such vacancy.

 

Rule 5. Traditional Court 

At the request of a party or on its own Motion, the Supreme Court may consult with and be advised by the Elders of the Traditional Court for guidance on the customs and traditions of the Nation.

 

Rule 6. Jurisdiction and Scope of Review 

a. The Supreme Court shall have the power to interpret the Constitution of the Ho-Chunk Nation and to make conclusions of law.

b. The Chief Justice of the Supreme Court shall, when hearing a case, have authority to compel the production of documents where such is deemed necessary to the rendition of the Court’s opinion. There shall not be a new trial in the Supreme Court. The Supreme Court may review both the factual findings and conclusion of law of the Trial Court.

 

Rule 7. Right of Appeal 

a. All parties have the right to appeal a final judgement or order of the Trial Court. Any party to a civil action, who is dissatisfied with the judgement or verdict may appeal to the Supreme Court.

b. Any party who is aggrieved by a final judgement or order of the trial court may appeal in the manner prescribed by this Rule.

(1) Such party shall within thirty (30) calendar days after the day such judgment or order was rendered, file with the Clerk of Court, a request in writing asking for permission to take an appeal from such judgment or order, together with a filing fee of thirty-five dollars ($35.00 US).

(2) The party taking the appeal shall be referred to as the appellant; all other parties shall be referred to as the appellees. The name of the case shall be the same as that used in the Trial Court.

c. In any case in which an appeal is reflected as required by this Rule, the appellant may petition the Supreme Court for an order staying the judgment or order. A stay shall be granted in all cases in which it is requested unless manifest injustice would result therefrom. The Supreme Court may render a stay conditioned upon execution of a bond to guarantee performance of the judgment or order when deemed necessary.

d. In the event permission for appeal is denied, the Supreme Court shall state the reasons for refusal within fifteen (15) calendar days of receipt of the Notice of Appeal.

 

Rule 8. Filing Fees and Costs 

a. The filing fee for an appeal shall be thirty-five dollars ($35.00).

b. The Chief Justice of the Supreme Court may waive the filing fee upon Motion for a Fee Waiver by the Appellant where the Chief Justice is satisfied the Appellant lacks the means to pay the filing fee. The Motion must include an affidavit demonstrating inability to pay and must accompany the Notice of Appeal.

c. Where the Nation is the Appellant, the filing fee may be waived upon Motion to the Chief Justice of the Supreme Court. The Motion must include an affidavit. However, if the Appellant is a tribal enterprise or board with delegated powers, the filing fee cannot be waived.

d. A cash deposit or bond in an amount equal to the amount of any money judgment, plus costs assessed by the Trial Court, or a Motion for Waiver of this requirement, must accompany the Notice of Appeal. The deposit/bond requirement may be waived only when in the judgment of the Supreme Court such deposit/bond is not in the interest of justice and such waiver does not unnecessarily harm the judgment holder. The Motion for Waiver of the deposit/bond requirement must be requested with Notice to all parties. If the Motion for Waiver is denied, the deposit/bond must be submitted within ten (10) calendar days of the denial. The appeal will be dismissed if the deposit/bond is not paid or waived.

 

Rule 9. Computation of Time 

a. The computation of any time period in these Rules shall be calendar days.

b. When the interests of justice require an expedited appeal, the Supreme Court shall notify all parties promptly of the reduced time limit.

c. There shall be no extension of time limits contained in these rules unless the requesting party demonstrates unforeseen or emergency circumstances.

 

Rule 10. Time for Filing and Service of Notice of Appeal 

a. A written Notice of Appeal from a decision of the Trial Court must be filed with the Clerk of Court within ten (10) calendar days of the date of the final judgment or order. The Notice of Appeal shall identify the party(ies) making the appeal by name and address, and shall identify the final judgment or order being appealed by name and case number.

b. The party filing the appeal must file a short statement of the reason or grounds for the appeal.

c. Copies of the Notice of Appeal shall be served on all parties to the action by the Appellant. Proof of Service shall be promptly filed with the Court.

d. Upon receipt of the Notice of Appeal, the clerk of court shall prepare, certify and file with the Supreme Court all papers comprising the record of the case appealed. A separate docket shall be maintained for the Supreme Court in which shall be recorded each state of the proceedings on each case appealed.

Rule 11. Time for filing Briefs and Memoranda

Within ten (10) calendar days of filing of Notice of Appeal or within such longer time as the Supreme Court shall allow, the appellant shall file a written brief, memorandum or statement in support of her/his appeal. An original and three (3) copies shall be filed with the clerk and one (1) additional copy shall be served upon or mailed to each other party or her/his counselor or attorney. The appellees shall have ten (10) calendar days after receipt of the memorandum or statement within which to file a response, memorandum or statement. A reply brief, memorandum or statement of appellant shall be allowed within leave of Court. Such reply brief shall be filed within ten (10) calendar days of the receipt of the appellee’s response.

 

Rule 12. Forms of Briefs, Memoranda or Statements 

a. Briefs, memoranda or statements shall include the following:

1. A cover page stating the name of the case, the numbers assigned to the case by the Trial Court and the Supreme Court, the name, address and telephone number of the party filing the document and the name, address and telephone number of counsel;

2. A statement of the case which indicates the nature of the case, the disposition by the Trial Court, and the legal issues presented to the Supreme Court;

3. Separately identified legal argument for each issue presented to the Supreme Court;

4. A conclusion stating precisely the relief sought;

5. All pages shall be 8½" by 11" double spaced and consecutively numbered;

6. All laws, rules regulations and cases cited in the document shall be attached as an addendum unless previously provided in the appeal;

7. No other attachments or addenda shall be permitted and will be disregarded by the Supreme Court;

8. All briefs, memoranda and statements shall not exceed twenty (20) pages in length, excluding addendum, and reply briefs shall not exceed six (6) pages in length, excluding addendum.

b. An appeal may be dismissed if the Appellant does not file the written brief memorandum or statement or if the Appellant does not serve all parties.

 

Rule 13. Record on Appeal

The papers filed in the Trial Court, the exhibits and the transcript of the proceedings shall constitute the entire record on appeal in all cases.

 

Rule 14. Oral Argument 

a. At the discretion of the Supreme Court, an oral argument may be ordered in the Appeal. The Supreme Court shall decide the order of presentation, the length of time each party is permitted for their presentation, the issues to be addressed in oral argument, and such other matters as may be necessary. The Order giving Notice of Oral Argument shall include all such matters and shall be served on all parties at least ten (10) calendar days prior to the date set for argument.

b. The Supreme Court shall decide all cases upon the briefs’ memoranda and statements filed plus the oral argument, if heard.

 

Rule 15. Opinions of the Supreme Court 

a. All decisions of the Supreme Court shall be in writing and accompanied by an opinion stating the legal issues and the basis for the decision.

b. Decisions of the Supreme Court shall be issued no later than thirty (30) calendar days after the conclusion of oral argument or after the expiration of time to file a Reply Brief, memoranda or statement if no oral argument is held.

c. The time for issuing a decision and opinion may be extended provided all parties are notified of the extension. The Notice of Extension will include the cause for and length of such extension.

d. If no decision and opinion is issued by the Supreme Court within the time designated, the clerk of court shall contact the Chief Justice of the Supreme Court to determine the status of the decision and opinion if requested by any party. The clerk of court shall report the status of the decision and opinion in writing to all parties. If it appears from the clerk of court’s report that no written decision and opinion is forthcoming, any party may apply to the Chief Judge of the Trial Court for equitable relief.

 

Rule 16. Entry and Form of Judgment 

a. The decision and opinion of the Supreme Court shall be by a majority vote. The Supreme Court may dismiss an appeal, make conclusions of law which reverse and remand the final judgment or order of the Trial Court, in whole or in part, or affirm the final judgment or order of the Trial Court.

b. The clerk of court shall prepare, sign and enter the decision and opinion of the Supreme Court as a judgment when it is filed by the Chief Justice of the Supreme Court.

c. The clerk of court shall serve all parties with a copy of the decision and opinion as entered.

d. Any decision of the Supreme Court shall be final according to the constitution of the Ho-chunk Nation, Article VII, Section 7(c).

 

Rule 17. Interest on Judgments 

a. If a judgment for money is dismissed on appeal, affirmed or upheld on remand, whatever interest is allowed by Legislative enactment or other court rule shall be computed from the date the first judgment was entered by the Trial Court.

b. If a judgment for money is reversed and not upheld on remand, the decision and opinion shall include directions with respect to the interest on the judgment.

 

Rule 18. Frivolous Appeals 

If an appeal is determined to be frivolous by the Supreme Court, and appeal shall be dismissed and costs and fees for counsel may be awarded to the appellee(s). The Supreme Court may also assess expenses incurred by the Supreme Court to the Appellant. If an Appellant has been granted a waiver of fees, the Supreme Court may remand to the Trial Court for the imposition of a duty for community service by the Appellant.

 

Rule 19. Appeals to General Council 

Any party may request a review by the General Council of a decision of the Supreme Court which interpret actions of the legislature. The request shall be made according to procedures set forth by the General Council. The General Council does not retain the power to review and reverse decisions of the Supreme Court which interpret the Constitution of the Ho-Chunk Nation.