RULES OF CIVIL PROCEDURE
Revised HCN Rules of Civil Procedure (effective 04/15/02)
I. INTRODUCTION TO THE RULES
Rule 1. Scope of Rules
Rule 2. Liberal Construction
II. BEGINNING AN ACTION
Rule 3. Complaints
Rule 4. Filing fees
- Motion to Waive Filing Fee
- Other Costs Waived
Rule 5. Notice of Service of Process
(C) Methods of Service Process
(D) Using a Process Server or Bailiff
(E) Return of Service
(F) Effect of Incomplete or Improper Service
(G) Time Limit for Service of Process
(H) Emergency Notice
Rule 6. Answering the Complaint
(B) Motion for More Definite Statement
Rule 7. Defenses and Counterclaims
Rule 8. Requests to Appear before the Traditional Court
(A) Requests to Transfer Case to Traditional Court
(B) Requests for Assistance on Matters of Custom and Tradition
Rule 9. Class Actions
(B) Prerequisites to a Class Action
(C) Class Actions Maintainable
(D) Notice; Judgment; Actions Considered Partially as Class Actions
(E) Orders in Conduct of Actions
(F) Dismissal or Compromise
Reserved 10 - 12
III. GENERAL RULES FOR PLEADING
Rule 13. Form
Rule 14. Caption
Rule 15. Attachments
Rule 16. Signature of Parties and Counsel; Special Appearances
- Signature of Parties and Counsel
- Special Appearances
Rule 17. Computation of Time
Rule 18 Types of Motions
Rule 19. Filing and Responding to Motions
(C) Motion for Expedited Consideration
Rule 20. Hearings on Motions
Rule 21. Amendments to Pleadings
IV. PARTIES TO AN ACTION
Rule 23. Naming Parties
Rule 24. Substituting, Intervening and Joining Parties
Rule 25. Death of a Party
Rule 26. Appointing Guardian Ad Litem
Rule 27. The Nation as a Party
- Action involving Minor or Adult Incompetent
- Civil Actions.
Rule 28. Joining, Consolidating, & Separating Claims
(A) Joinder of Claims
(B) Consolidation of Claims
(C) Separation of Claims
Reserved 29 - 30
Rule 31. Required Disclosures
- Time of Disclosure
- Authority to Compel
Rule 32. Interrogatories
Rule 33. Depositions
Rule 34. Requests for Documents and Things
Rule 35. Ongoing Obligation
Rule 36. Protective Orders
Rule 37. Non-Compliance
Rule 38. Power to Compel
Reserved 39 - 41
Rule 42. Scheduling Conference
Rule 43. Pre-trial Conference
Rule 44. Presence of Parties and Witnesses
(C) Failure to Appear
Rule 45. Postponement
Rule 46. Jury Trial
Rule 47. Consolidation and Separation of Actions
Reserved 48 - 52
VII. JUDGEMENTS AND ORDERS
Rule 53. Relief Available
Rule 54. Default Judgment
Rule 55. Summary Judgment
Rule 56. Dismissal of Action
(A) Voluntary Dismissal
(B) Involuntary Dismissal
(C) Sua Sponte Dismissal
Rule 57. Entry and Filing of Judgment
Rule 58. Amendment to or Relief from Judgment or Order
(A) Relief from Judgment
(B) Motion for Reconsideration
(C) Motion to Modify
(D) Erratum Order or Reissuance of Judgment
(E) Grounds for Relief
Rule 59. Satisfaction of Judgment
Rule 60. Emergency Order, Temporary Restraining Order and Ex Parte TRO
(A) Emergency Order
(B) Temporary Restraining Order
Rule 61. Appeals
Rule 62. Judgment on the Pleadings
Reserved 63 - 67
VIII. ENFORCEMENT REMEDIES
Rule 68. Stays Pending Appeal
Rule 69. Who is Bound by Judgment
Rule 70. Judgments in Traditional Court Resolution Proceeding
Rule 71. Execution of Judgment
(C) Satisfaction of Judgment
Rule 72. Garnishments and or Lien
Rule 73. Full Faith and Credit and Comity
(A) Full Faith and Credit and Comity
(B) Validity of Foreign Judgment or Order
IX. SPECIAL RULES FOR ELECTION CHALLENGES
Rule 74. Application and Purpose; Sanctions; Definitions
Rule 75. Initiating an Election Challenge; Fees; Time; Service of Process; Required Attachments and Information
- Initiating an Election Challenge
- Service of Process
- Required Attachments and Information
Rule 76. Answering an Election Challenge
Rule 77. Serving the Answer
Rule 78. Hearings; Notice of Hearings; Motion to Appear by Telephone
- Notice of Hearings
- Motion to Appear by Telephone
Rule 79. Discovery
Rule 80. Appeal
- Filing Briefs
- Oral Arguments
- Written Decisions
Rule 81. Forms
Rule 82. Title
Rule 83. Effective Date
Rule 84. Business Hours
APPENDIX OF FORMS
(C) Notice of hearing
(E) Subpoena of witnesses
(F) Certificate of Service
I. INTRODUCTION TO THE RULES
Rule 1. Scope of Rules.
The Ho-Chunk Nation Constitution, Art. VII, Section 7(B) requires that the HCN Supreme Court establish
written rules for the Judiciary. These rules, adopted by the Supreme Court of the Ho-Chunk Nation, shall
govern the procedure of the Trial Courts in all actions and proceedings. The judges of the Trial Court may
look to Ho-Chunk customs and traditions for guidance in applying justice and promoting fairness to parties
Rule 2. Liberal Construction.
These rules shall be liberally construed to secure a just and speedy determination of every action.
II. BEGINNING AN ACTION
Rule 3. Complaints.
General. A civil action begins by filing a written Complaint with the clerk of court and paying the appropriate fees. The Complaint shall contain short, plain statements of the grounds upon which the Court=s jurisdiction depends; the facts and circumstances giving rise to the action, and a demand for any and all relief that the party is seeking. Relief should include, but is not limited to the dollar amount that the party is requesting. The Complaint must contain the full names and addresses of all parties and any counsel, as well as a telephone number at which the Complainant may be contacted. The Complaint shall be signed by the filing party or his/her counsel, if any.
Rule 4. Filing.
(A) General. No document will be considered filed until the filing fee is paid or a Motion to Waive Filing Fees is filed. If the Motion to Waive Filing Fees is denied, and the filing fees are paid within ten (10) calendar days of the denial, the Complaint will be considered filed on the date the Motion to Waive Filing Fees was filed.
(B) Fee. The filing fee for a Complaint in the Trial Court of the Ho-Chunk Nation Judiciary shall be fifty dollars ($50. U.S.). The fee may be waived at the Court=s discretion for good cause.
(C) Motion to Waive Filing Fees. A person asking to file their Complaint without paying the fee shall file an Affidavit stating that they are the complaining party and that they are requesting an order to proceed without paying the filing fee. The Motion shall be accompanied by an Affidavit stating the kind and amount of income earned by their household, household expenses, whether they are represented by a civil legal services program, and any other supporting information which will help the judge understand their situation. A copy of the Motion and Affidavit shall be attached to the Complaint. In the event that the Court denies the Motion to Waive Filing Fees, the moving party shall have ten (10) calendar days from the date of denial, oral or written, in which to pay the filing fees. Should the party pay the fees within the ten-day deadline, the Complaint will be considered filed when the Motion to Waive Filing Fees was filed. Should the ten-day deadline elapse, the Court will consider the Complaint as filed on the date the filing fee is received.
(D) Other Costs Waived. A person authorized to file their petition without paying a filing fee shall also be entitled to have other costs and expenses deferred until the time of settlement or judgment of the action.
Rule 5. Notice of Service of Process.
(B) General. Any time a party files a document other than the Complaint with the Court in relation to a case, the filing party must serve copies on the other parties to the action and provide Certificate of Service to the Court. Any time the Court issues an Order or Judgment in the context of an active case, the Court must serve copies on all parties. Service of process can be accomplished as outlined in Section (C).
- Personal Service is required for the initiation of actions in the following:
(i) Relief requested is over $5,000.00, excluding the enforcement of foreign child support orders; or
(ii) Children=s custody and/or placement are the subject matter of the proceedings.
(b) Where personal service is required by this rule and the Court or the filing party exercises due diligence in unsuccessfully pursuing personal service of process, the filing party may move for permission to pursue service of process by any means provided for in sections (c) through (f). The Court will grant the motion where good cause is shown. The Court may also enter such an order sua sponte for good cause shown.
(c) Service upon a Business, Corporation or Entity. Service may be made upon an agent of a business, corporation or governmental agency.
(d) Service upon an Individual. The required papers are delivered in person to the party=s home or usual and current place of business or employment to someone of suitable age and discretion over fourteen (14) years of age.
(e) Service by Mail. Service of process may be accomplished by sending the required papers to a party by registered mail with return receipt requested, except in the instances of Rule 5(C)(1)(a)(i) and 5(C)(1)(a)(ii) as stated above.
(f) Service by Publication. Upon order of the Court for good cause shown, service of process may be accomplished by publishing the contents of the summons. Where service by publication is being made on a member or members of the Ho-Chunk Nation, the contents of the summons may be published in the Hoc�k Worak or a newspaper of general circulation in an area where the party is most likely to be made aware of the summons. In the case of non-members of the Ho-Chunk Nation, the contents of the summons may not be published in the Hocak Worak, but may be published in a newspaper of general circulation in an area where the party is most likely to be made aware of the summons. If publication is sought in the Hocak Worak, publication must be in two consecutive issues. If publication is sought in a paper of general circulation, publication must be at least
,once per week for four consecutive weeks. Proof of publication must be provided to the Clerk of Court.
(D) Using a Process Server or Bailiff. The Court=s bailiff shall be authorized to serve process in any action filed with the Court. In addition, the Court may authorize other persons to serve process when there is an assurance the other person knows how to effect proper service and will make adequate factual inquiries to assure that service is proper.
(E) Return of Service. A return of service shall be endorsed with the name of the person serving and the date, time and place of service. It shall state the manner in which service was made and shall be filed with the clerk of Court.
(F) Effect of Incomplete or Improper Service. Incomplete or improper service results in a lack of jurisdiction over the person incompletely or improperly served. If a person refuses to accept, service shall be deemed properly performed if the person is informed of the purpose of the service and offered copies of the papers served. If a person intentionally avoids service, the Court may also consider service as properly performed. Upon order of the Court for good cause shown, if the Court or the filing party exercises due diligence in unsuccessfully pursuing service of process, whether personal or otherwise, a Default Judgment may be entered in accordance with Rule 54.
(G) Time Limit for Service of Process. A Complaint must be served, and proof of service filed with the Court within one hundred and twenty (120) calendar days of filing, or it will be considered dismissed without prejudice by the Court with notice provided to the filer. Upon order of the Court for good cause shown, a sixty (60) calendar day extension may be ordered in the event that the Court or the filer exercises due diligence in unsuccessfully providing service of process.
(H) Emergency Notice. The rule governs cases of emergency where the Court may need to conduct a hearing which provides less than forty-eight (48) hours notice to the parties. In cases of emergency, upon motion of a party or sua sponte, the Court can provide notice of a hearing less than forty-eight (48) hours prior to the hearing. In cases of emergency, the Court may provide notice by telephone with written confirmation or by telephone and fax at least forty-eight (48) hours in advance. Documentation of the call or fax shall be included in the record.
Rule 6. Answering a Complaint.
(A) Answer. A party against whom a Complaint has been made shall have twenty (20) calendar days from the date the summons is issued, or from the last date of service by publication to file an Answer with the Clerk of Court. The Answer shall use short and plain statements to admit, admit in part, or deny each statement in the Complaint, assert any and all claims against other parties arising from the same facts or circumstances as the Complaint and state any defenses to the Complaint. The Complaint must contain the full names of all parties and any counsel. The Answer must be signed by the party and his or her counsel and contain their full names and addresses, as well as a telephone number at which the they may be contacted. An Answer shall be served on other parties and may be served by mail. A Certificate of Service shall be filed as required by Rule 5(B).
(B) Motion for More Definite Statement. Should a party against whom a Complaint has been made find that they are unable to formulate an Answer due to deficiencies in the Complaint, they may file a Motion for More Definite Statement within the prescribed time to file an Answer. The Motion for More Definite Statement shall include: a statement of why the Complaint is inadequate, and the information the party would like to have to assist him/her in formulating an Answer. Should the Motion for More Definite Statement be denied, the party shall file an Answer within the time limit set by the judge, said time limit not to exceed twenty (20) calendar days.
Rule 7. Defenses and Counterclaims.
A defense which alleges new facts excusing the conduct of the defendant if statements in the Complaint are true must be affirmatively stated. Counterclaims arising from the same facts or circumstances as alleged in the Complaint shall be raised in the Answer. If a party fails to raise such Counterclaims, he/she shall be forever barred from bringing them to the Court in a future action. Other claims against parties in the action may also be raised in the Answer. A party may file a response to counterclaims raised in the Answer, but is not required to do so.
Rule 8. Requests to Appear before the Traditional Court.
(A) Requests to Transfer Case to Traditional Court - Whenever a party or parties have a right to be heard by the Trial Court, a party may request to appear before the Traditional Court on matters related to custom and tradition of the Ho-Chunk Nation. All parties involved in the dispute must voluntarily consent to appear before the Traditional Court and to be bound by its decision. A party or parties which bring an action before the Trial Court may elect to appear before the Traditional Court at any time.
(B) Requests for Assistance on Matters of Custom and Tradition. Upon a motion of the Court or by a party, the Trial Court may request assistance from the Traditional Court on matters relating to custom and tradition of the Nation, pursuant to the HCN Judiciary Act of 1995, ' 11.
Rule 9. Class Actions.
(A) General. A class action lawsuit is one in which a small number of representatives represent the legal interests of a large number of people. A judge must certify the class for purposes of the litigation. Such Motion shall include: the identity of the class, the basis for personal and subject matter jurisdiction, the legal issues involved, and why it would not be practical to join each person instead of proceeding with a class action. The opposing party shall have ten (10) calendar days to file a Response to this Motion. The Trial Court, at its discretion, may then enter an Order stating whether or not the class has been certified, or convene a fact-finding hearing prior to entering an Order. The Trial Court may conditionally certify the class. At all times during the litigation, the Court may sua sponte reconsider its Order to certify the class.
(B) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(C) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of section (B) are satisfied, and in addition:
(b) as a practical matter, dispositive of the interests of the other members not party to the adjudications or substantially impair or impede their ability to protect their interests; or
(3) the Court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
(D) Notice; Judgment: Actions Conducted Partially as Class Actions.
(E) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the Court may make appropriate orders: (1) determining the course of proceeding or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the Court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or the intervenors; (4) requiring that the pleadings be amended to eliminate allegations as to representation of absent persons, and that the action proceed accordingly; (5) dealing with similar procedural matters.
(F) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the Court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the Court directs.
(G) Appeals. The Supreme Court may in its discretion permit an appeal from an order of the Trial Court granting or denying class action certification under this rule if application to the Supreme Court is made within ten (10) calendar days after entry of the order. An appeal does not stay proceedings in the Trial Court unless the Trial Court or the Supreme Court so orders.
Reserved 10 - 12
III. GENERAL RULES FOR PLEADING
Rule 13. Form.
All pleadings shall be on 82 by 11 inch paper (letter, not legal size) with at least an one (1) inch top margin and an one (1) inch left margin. The information must be typewritten or clearly printed within the margins and double spaced between the lines. The first page of a pleading shall contain the caption.
Rule 14. Caption.
The first line of the pleading shall identify the Court where the action is filed. The names of parties to the action, with the complaining party placed first on the left side of the first page beginning on the next line. The title of the pleading (e.g., Complaint, Answer, Motion) and the case number shall be placed on the right side of the first page, next to the list of parties. Parties shall always be listed in the same order as the Complaint.
Rule 15. Attachments.
Attachments to pleadings must be specifically identified and referenced to in the pleading and conform to the rules for pleading.
Rule 16. Signature of Parties and Counsel; Special Appearances.
(A) The Complaint and Answer shall be signed by the party or his/her counsel. The signature means the statements in the pleading are made in good faith, are believed to be true and accurate, and are based upon adequate research or investigation. The Court may impose sanctions if it finds statements in a pleading are not made in good faith, contain intentional misstatements, or are not based upon adequate research or investigation. This includes omitting material facts or law which the person knew, or should have reasonably known, was relevant to the action. Sanctions may include removing issues from consideration in the action, imposing costs and counsel fees, and any other relief which may be appropriate under the circumstances.
(B) Counsel not admitted to practice before the Ho-Chunk Nation Courts may be permitted to appear on behalf of a client by Special Appearance in an action. In order to be permitted to make a special appearance, counsel must file a motion to allow the special appearance; a proposed Order; and an affidavit containing the oath or affirmation for admission to practice, stating that they are admitted to practice in another state, federal or tribal jurisdiction, and stating they have been in actual practice for two or more years. They must also submit a processing fee for the special appearance of $35.00.
Rule 17. Computation of Time.
(A) When counting days to meet time limits under these rules computation begins on the day after the filing. For example, if a Complaint is filed on the first day of a month and the Answer is due in twenty (20) calendar days, then the date the Answer is due will be the twenty-first day of the month. If the time limit identified in these rules is less than seven (7) calendar days, then Saturdays, Sundays, and legal holidays are not counted in the time limit. Legal Holidays are defined as those recognized by the Ho-Chunk Nation.
(B) If a time limit concludes on a weekend, legal holiday, or day when the Court is closed due to inclement weather or other unforeseen circumstances, then the time limit falls on the next working day. Computation of time originates with the actual Court filing date or Court file stamped date of the document and not the date the notice or the document is received by the party.
Rule 18. Types of Motions.
Motions are requests directed to the Court and must be in writing except for those made at trial. Motions based on factual matters shall be supported by affidavits, references to other documents, testimony, exhibits or other material already in the Court record. Motions based on legal matters shall contain or be supported by a legal memorandum, which states the issues and legal basis relied on by the moving party. The Motions referenced within these rules shall not be considered exhaustive of the Motions available to litigants.
Rule 19. Filing and Responding to Motions.
(A) Filing. Motions may be filed by a party with any pleading or at any time after their first pleading has been filed. A copy of all written Motions shall be delivered or mailed to other parties at least five (5) calendar days before the time specified for a hearing on the Motion. Motions for Extension of Time and More Definite Statement may be filed before the initial pleading.
(B) Responses. A Response to a written Motion must be filed at least one (1) day before the hearing. If no hearing is scheduled, the Response must be filed with the Court and served on the other parties within ten (10) calendar days of the date the Motion was filed. The party filing the Motion must file any Reply within three (3) calendar days.
(C) Motions for Expedited Consideration. Any Motion which requires action within five (5) calendar days shall be accompanied by a Motion for Expedited Consideration. The Motion for Expedited Consideration shall state the reasons why the Accompanying Motion should be heard prior to the normal time period, and what efforts the party has made to resolve the issue with the opposing party prior to filing the Motion for Expedited Consideration.
Rule 20. Hearings on Motions.
The Court may grant a hearing on a Motion at its own discretion or at the request of a party. A party requesting a hearing must (a) schedule the hearing with the Court and (b) deliver or mail notice of the hearing to other parties at least five (5) calendar days prior to the hearing. If the trial is scheduled to begin within the time allowed for a hearing, all responses shall be made by the time scheduled for commencement of the trial. Motions made within fourteen (14) calendar days of trial may be dismissed and costs and fees assessed against the moving party if the Court finds no good cause exists for failing to file the Motion more than fourteen (14) calendar days in advance of the trial.
Rule 21. Amendments to Pleadings
Parties may amend a Complaint or Answer one time without leave of the Court prior to the filing of a responsive pleading, or if no responsive pleading is permitted, at any time within twenty (20) days of the original filing date. Subsequent amendments to Complaints or Answers may only be made upon leave of the Court and a showing of good cause, or with the consent of the opposing party. All amendments to the Complaint or Answer must be filed at least thirty (30) calendar days prior to trial or as otherwise directed by the Court. When an Amended Complaint or Answer is filed, the opposing party shall have ten (10) calendar days, or the time remaining in their original response period, whichever is greater, in which to file an amended responsive pleading.
IV. PARTIES TO AN ACTION
Rule 23. Naming Parties.
Every action shall be brought in the name of the real party in interest, however, a guardian, trustee or other person in a fiduciary position may sue in his/her own name without joining the party for whose benefit the action is maintained. Matters with minors and incompetents as parties shall be filed using only initials and date(s) of birth.
Rule 24. Substituting, Intervening and Joining Parties.
If a party becomes incompetent or transfers his/her interest or separates from some official capacity, another party may be substituted as justice requires. A party with an interest in an action may intervene and be treated in all respects as a named party to the action. To the greatest extent possible, all persons with an interest will be joined in an action if relief cannot be accorded among the current parties without that person, or the absent person=s ability to protect their interests is impeded unless they are a party. Failure to join a party over whom the Court has no jurisdiction will not require dismissal of an action unless it would be impossible to reach a just result without the absent party. The Court will determine only the rights or liabilities of those who are a party to the action, or eligible for relief as part of a class certified under Rule 9.
Rule 25. Death of a Party.
An action may continue following the death of a party with the rights and liabilities continuing in the deceased's successor in interest.
Rule 26. Appointing Guardian Ad Litem.
The Court may appoint a Guardian Ad Litem to represent the interests of a minor or incompetent person who is a party in an action. The Guardian Ad Litem is not a party to the action but is responsible for independently investigating and advising the Court on the best interests of the minor or incompetent person.
Rule 27. The Nation as a Party.
(A) Actions involving Minor or Adult Incompetents. When the Nation files an action concerning a minor or a legally incompetent adult, the Complaint will identify the following as parties: 1) matters with minors as parties shall be filed using only initials and date(s) of birth or matters with incompetents as parties may be filed using their actual names; 2) the parents or legal guardians by names and residence(s); and 3) any other person having physical custody of the child/children by name, relationship to the child/children and residence.
(B) Civil Actions. When the Nation is filing a civil suit, a writ of mandamus, or the Nation is named as a party, the Complaint should identify the unit of government, enterprise or name of the official or employee involved. The Complaint, in the case of an official or employee being sued, should indicate whether the official or employee is being sued in his or her individual or official capacity. Service can be made on the Ho-Chunk Nation Department of Justice and will be considered proper unless otherwise indicated by these rules, successive rules of the Ho-Chunk Nation Court, or Ho-Chunk Nation Law.
Rule 28. Joining, Consolidating and Separating Claims.
(A) Joinder of Claims. Each complaining party in a case must join all claims arising from the same set of circumstances in one action. The complaining party may join all claims against one defendant in one action even if the claims arise from a different set of circumstances.
(B) Consolidation of Claims. The Court, on its own Motion or upon Motion of a party, may order a joint hearing or trial of any and all claims in an action and of multiple actions to avoid unnecessary costs or delay.
(C) Separation of Claims. The Court, on its own Motion or upon Motion of a party, may separate claims in an action for the convenience of the Court and to avoid prejudice or delay.
Reserved 29 - 30.
Introduction. Discovery is the process used among parties to uncover evidence relevant to the action, including the identity of persons having knowledge of facts. Discovery may take place before an action has been filed and may be used for the purpose of preserving testimony or other evidence which might otherwise be unavailable at the time of trial. Discovery may include written interrogatories, depositions, and requests for the production of documents and things. It is the policy of the Court to favor open discovery of relevant material as a way of fostering full knowledge of the facts relevant to a case by all parties. It is the intent of these rules that reasonable open discovery will encourage settlement, promote fairness and further justice.
Rule 31. Required Disclosures.
(B) Time of Disclosure. Unless otherwise stipulated or directed by the Court, these disclosures shall be received by the Court within ten (10) calendar days after the scheduling conference. A party shall make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party=s disclosures or because another party has not made its disclosures.
(C) Authority to Compel. The Court shall have sua sponte authority to compel disclosure or production of discoverable documents, records and other materials, and to compel parties to answer or respond upon the Court=s own motion.
Rule 32. Interrogatories.
A party may submit interrogatories (written questions) to other parties. The requesting party must receive the responding party�s written answers, under oath, within twenty-five (25) calendar days of receiving them. The responding party must include facts he/she knows, facts available to him/her, and give opinions, if requested.
Rule 33. Depositions.
A party may take a deposition (testimony, under oath and recorded) of a deponent (another party or a witness) after giving at least five (5) calendar days notice of the time and place where the deposition will occur to all parties and the deponent. All parties may ask the deponent questions. Depositions may take place by telephone and be recorded stenographically, by tape recording or by other means if the parties agree or the Court so orders.
Rule 34. Requests for Documents and Things.
A party may request another party to produce any documents or things within his/her possession or control for the purpose of inspection and/or copying. This includes permission to enter onto land for testing. The responding party must make the documents or things available to the requesting party within twenty-five (25) calendar days of the date of receiving the request.
Rule 35. Ongoing Obligation
There is an ongoing obligation by any party subject to a discovery request, which continues up to and through the trial, to supplement any response previously answered if new or freshly discovered material previously unavailable is discovered or revealed to them.
Rule 36. Protective Orders.
For good cause, the Court on its own motion or at the request of any party or witness, may enter an Order to protect a party or other person from undue annoyance, embarrassment, oppression or undue burden or expense.
Rule 37. Non-Compliance.
If a party fails to appear or respond as requested under these rules, a party may request or the Court may issue an Order requiring a response and imposing costs, attorney=s fees, and sanctions as justice requires in order to secure compliance.
Rule 38. Power to Compel.
The Court retains the inherent authority to compel disclosure of material it has cause to believe is relevant to the matter before it.
Reserved 39- 41.
Rule 42. Scheduling Conference.
Scheduling Order. The Court may enter a scheduling order on the Court=s own motion or on the motion of a party. The Scheduling Order may be modified by motion of a party upon a showing of good cause or by leave of the Court.
Rule 43. Pre-Trial Conference.
The Court may hold conferences with the parties, or their counsel when the party is represented. Notice of the time, place and purposes must be given far enough in advance to allow all parties to attend. The purposes of a conference may be to foster a resolution of the action without trial, to schedule discovery, motions and hearings to expedite the action, and to formulate a plan for the trial, identifying witnesses to be called, evidence to be presented, unresolved factual and legal issues, and for discussion of any other matter among the parties. A party may be sanctioned for failing to attend a conference if they received at least ten (10) calendar days notice and do not show good cause for failing to attend.
Rule 44. Presence of Parties and Witnesses.
(A) Subpoenas. Subpoenas may be used to cause a witness to appear and give testimony. If a party wishes to have a subpoena issued by the Court, he/she shall furnish a properly prepared subpoena including information necessary for service of process at least ten (10) calendar days before trial. Service will be completed at least three (3) calendar days prior to hearing or trial. When service has been completed, the Court shall mail proof of service to all parties. When service of the subpoena will not be through the Court, the requesting party shall present the properly prepared subpoena to the Court for signature in time to ensure proper service before the hearing or trial and shall return proof of service to the Court prior to the trial. If a party does not timely request a subpoena, he/she shall not be entitled to a postponement because of the absence of the witness. If the subpoena has been timely issued, the Court may, in its discretion, postpone the hearing or trial. A person who fails to appear after being subpoenaed may be held in contempt of Court.
(B) Notice. At all times the parties shall use diligent efforts to notify witnesses subpoenaed to appear in sufficient time so that they might make arrangements needed to appear.
(C) Failure to Appear. If any party fails to appear at a hearing or trial for which they received proper notice, the case may be postponed or dismissed, a judgment may be entered against the absent party, or the Court may proceed to hold the hearing or trial.
Rule 45. Postponement.
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 just.
Rule 46. Jury Trial.
Reserved. Rules and Procedures governing trial(s) are in development.
Comment: The Bill of Rights of the Constitution of the Ho-Chunk Nation, Article X, Section 1, (a)(10) permits trial by jury of no less than six persons for offenses punishable by imprisonment.
Rule 47. Consolidation and Separation of Action.
(A) Consolidation. When actions involving a common question of law or fact are pending before the Court, the Court may order a joint hearing or trial of any or all the matters in issue in the actions; the Court may order all the actions consolidated; and the Court may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
(B) Separation. The Court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to judicial economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, or third-party claims, or issues.
Reserved 48 - 52.
VII. JUDGMENTS AND ORDERS
Rule 53. Relief Available.
Except in a Default Judgment, the Court is not limited to the relief requested in the pleading and may give any relief it deems appropriate. The Court may only order such relief to the extent allowed by Ho-Chunk Nation enactments. The Court may order any party to pay costs, including attorney�s fees, filing fees, costs of service and discovery, jury and witness costs. Findings of fact and conclusions of law shall be made by the Court in support of all final judgments.
Rule 54. Default Judgment.
A Default Judgment may be entered against a party who fails to answer if the party was personally served in accordance with Rule 5(C)(1)(a)(i) or 5(C)(1)(a)(ii) or obtained judicial authorization to pursue other means of service such as publication or if a party fails to appear at a hearing, conference or trial for which he/she was given proper notice. A Default Judgment shall not award relief different in kind from, or exceed the amount stated in the request for relief. A Default Judgment may be set aside by the Court only upon a timely showing of good cause.
Rule 55. Summary Judgment.
Any time after the date an Answer is due or filed, a party may file a Motion for Summary Judgment on any or all of the issues presented in the action. The Court will render summary judgment in favor of the moving party if there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law.
Rule 56. Dismissal of Actions.
(A) Voluntary Dismissal. A plaintiff may file a Notice of Dismissal any time prior to the filing of an Answer. The Complaint will be dismissed without prejudice.
(B) Involuntary Dismissal. After an Answer has been filed, a party must file a Motion to Dismiss. A Motion to Dismiss will be granted at the discretion of the Court. A Motion to Dismiss may be granted for a lack of jurisdiction; if there has been no Order or other action in a case for six (6) months; if a party substantially fails to comply with these rules; if a party substantially fails to comply with an order of the Court; if a party fails to establish the right to relief following presentation of all evidence up to and including trial; or, if the plaintiff so requests.
(C) Sua Sponte Dismissal. The Court, on its own motion, may move to dismiss an action if there has been no filing or other activity on the record for six (6) months, if a party substantially fails to comply with these rules, or if a party substantially fails to comply with an order of the Court. The Court shall give written Notice to all parties that the action will be dismissed after thirty (30) calendar days unless good cause is shown in writing prior to the end of the thirty day period. No further Notice is necessary for the Court to enter a dismissal.
Rule 57. Entry and Filing of Judgment.
All judgments must be signed by the presiding Trial Court judge. All signed judgments shall be deemed complete and entered for all purposes after the signed judgment is filed with the Clerk. A copy of the entered judgment shall be mailed to each party within two (2) calendar days of filing. The time for taking an appeal shall begin running from the date the judgment is filed with the Clerk. Interest on a money judgment shall accrue from the date the judgment is filed with the Clerk at a rate set by the Legislature or at five (5) per cent per year if no rate is set.
Rule 58. Amendment to or Relief from Judgment or Order.
(A) Relief from Judgment. A Motion to Amend or for relief from judgment, including a request for a new trial shall be made within ten (10) calendar days of the filing of judgment. The Motion must be based on an error or irregularity which prevented a party from receiving a fair trial or a substantial legal error which affected the outcome of the action.
(B) Motion for Reconsideration. Upon motion of the Court or by motion of a party made not later than ten (10) calendar days after entry of judgment, the Court may amend its findings or conclusions or make additional findings or conclusions, amending the judgment accordingly. The motion may be made with a motion for a new trial. If the Court amends the judgment, the time for initiating an appeal commences upon entry of the amended judgment. If the Court denies a motion filed under this rule, the time for initiating an appeal from the judgment commences when the Court denies the motion on the record or when an order denying the motion is entered, whichever occurs first. If within thirty (30) days after the filing of such motion, and the Court does not decide a motion under this Rule or the judge does not sign an order denying the motion, the motion is considered denied. The time for initiating an appeal from judgment commences in accordance with the Rules of Appellate Procedure.
(C) Motion to Modify. After the time period in which to file a Motion to Amend or a Motion for Reconsideration has elapsed, a party may file a Motion to Modify with the Court. The Motion must be based upon new information that has come to the party�s attention that, if true, could have the effect of altering or modifying the judgment. Upon such motion, the Court may modify the judgment accordingly. If the Court modifies the judgment, the time for initiating an appeal commences upon entry of the modified judgment. If the Court denies a motion filed under this rule, the time for initiating an appeal from the judgment commences when the Court denies the motion on the record or when an order denying the motion is entered, whichever occurs first. If within thirty (30) calendar days after the filing of such motion, and the Court does not decide the motion or the judge does not sign an order denying the motion, the motion is considered denied. The time for initiating an appeal from judgment commences in accordance with the Rules of Appellate Procedure.
(D) Erratum Order or Reissuance of Judgment. Clerical errors in a Court record, including the Judgment or Order, may be corrected by the Court at any time.
(E) Grounds for Relief. The Court may grant relief from judgments or orders on motion of a party made within a reasonable time for the following reasons: (1) newly discovered evidence which could not reasonably have been discovered in time to request a new trial; or (2) fraud, misrepresentation or serious misconduct of another party to the action; or (3) good cause if the requesting party was not personally served in accordance with Rule 5(c)(1)(a)(i) or (ii); did not have proper service and did not appear in the action; or (4) the judgment has been satisfied, released, discharged or is without effect due to a judgment earlier in time.
Rule 59. Satisfaction of Judgment.
(A) Complete. The person owing money under a judgment must file proof of satisfaction of judgment with the Court stating the amount and date of payment and whether the payment was in full or partial satisfaction of the judgment. The satisfaction must be signed by the person who was owed money.
(B) Partial. A partially satisfied or unsatisfied judgment continues in effect for eight years or until satisfied. The judgment may be renewed for additional eight (8) year periods upon request by any party.
Rule 60. Emergency Order, Temporary Restraining Order and Ex parte Temporary Restraining Order.
(A) Emergency Order. The Court may enter an Emergency Order without a hearing if it appears from the Complaint, affidavits and sworn testimony that irreparable harm will result without the Order. The Order will expire in thirty (30) calendar days unless extended by the Court for good cause. A hearing on the matters contained in the Order will be held prior to its expiration. The removal of a child from its residence by the Department of Social Services or equivalent agency and the imminent destruction of records or property essential to the case are examples of matters which may require an Emergency Order.
(B) Temporary Restraining Order. When it appears from a party=s pleading that a party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure the party, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.
(C) Procedure. The application for an injunction or restraining order made to the Court shall not be heard except upon notice to such other persons as may be defendants in the action unless the Court is of the opinion that irreparable loss or damage will result to the applicant unless a temporary restraining order is granted.
(D) Time. The Court may grant such temporary restraining order at any time before a hearing and determination of the application for an interlocutory injunction. However, such temporary restraining order shall be effective only for thirty (30) calendar days unless extended after notice and hearing thereon, or upon written consent of the parties or their attorneys.
Rule 61. Appeals.
Any final Judgment or Order of the Trial Court may be appealed to the Ho-Chunk Nation Supreme Court. The Appeal must comply with the Ho-Chunk Nation Rules of Appellate Procedure, specifically Rules of Appellate Procedure, Rule 7, Right of Appeal. All subsequent actions of a final Judgment or Trial Court Order must follow the HCN Rules of Appellate Procedure.
Rule 62. Judgment on the Pleadings.
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 55, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion by Rule 55.
Reserved 63 - 67.
VIII. ENFORCEMENT AND REMEDIES
Rule 68. Stays Pending Appeal.
The Trial Court may delay execution of the final Order or Judgment during the appeal on its own motion or on the request of either party if a bond is given or other conditions prescribed by the Court are met that protect the interests of the party in whose favor the final Judgment or Order is entered.
Rule 69. Who Is Bound by Judgment.
All parties and interested persons who are within the jurisdiction of the Court and who had notice of the case pending before the Court are bound by the judgment whether or not they appeared.
Rule 70. Judgments in Traditional Court Resolution Proceeding.
Selection of the Traditional Court by a litigant forecloses the use of the Trial Court. All decisions of Traditional Court will be summarized in writing by the trial judge. The decisions of the Traditional Court will not be appealable. The party selecting resolution by the Traditional Court must be do so in writing and sign an acknowledgment that they understand that they will not be able to appeal its judgment to the Trial Court or Supreme Court. All parties appearing before the Traditional Court must appear voluntarily and consent in writing to the jurisdiction of the Traditional Court. The decisions of the Traditional Court apply only to the parties involved in that dispute, and will not be given any legal authority beyond that provided by the HCN Constitution.
Rule 71. Execution of Judgment.
(A) Judgment. Judgments may be executed through a writ of execution on the property of a person against whom the money Judgment is entered. The party requests an execution of the Judgment by filing a Motion and documenting that the judgment has not been fully satisfied.
(B) Hearing. When such a Motion is filed, the Court shall order the person owing the money to appear and Answer under oath describing his money, property, and income. Failure to appear may be deemed a contempt of Court and the Court may proceed with the execution of Judgment without the person. Money and property may be seized by the Court and held to satisfy the Judgment. Any money, and property seized shall be held for thirty (30) calendar days before being turned over to the party to whom the money is owed. The Court, in its discretion, may release the money or property in less than thirty (30) days, if the release will not cause harm to either party.
(C) Satisfaction of Judgment. The person owing the money may redeem whatever is seized by paying to the Court the full amount of the Judgment, plus interest and any costs to the other parties and the Court in executing the Judgment. This includes the costs of storing and maintaining whatever is seized.
Rule 72. Garnishments and or Liens.
Garnishment/lien is a proceeding to obtain satisfaction of a Judgment for money out of property or money in the possession or control of a third party. A Judgment may be collected through a writ of execution on the income or other funds being held by someone other than the person owing the debt. The person requesting execution of Judgment shall ask the Court to serve the Writ of Execution and an Order directed to the third party which requires them to turn over property or money in their possession or control belonging to the person owing the debt. The property of money shall be turned over to the Court and held as under the above rule on execution of judgments.
Rule 73. Full Faith and Credit and Comity.
(A) Full Faith and Credit and Comity. Unless otherwise enacted by the Legislature, this Court will extend full faith and credit to the judicial records, orders and judgments of the Courts of the State of Wisconsin, the Courts of other states, federal Courts, and other tribal Courts to the same extent the other jurisdiction extends full faith and credit to the judicial records, orders and judgments of this Court. In determining whether to extend full faith and credit, this Court will review the judicial record, order or judgment in question to assure that:
-the foreign Court has jurisdiction over the subject matter and over the persons named;
-any judgment or order is final under the laws of the rendering Court;
-any judgment or order is on the merits and procured without fraud, duress or coercion;
-any judgment or order was procured in compliance with the procedures required by the rendering Court.
(B) Validity of Foreign Judgment or Order. No lien or attachment based on a Judgment or Order rendered by a Court of another jurisdiction will be filed, docketed or recorded in this Court unless it has been given full faith and credit by the Trial Court of the Ho-Chunk Nation.
IX. SPECIAL RULES FOR ELECTION CHALLENGES
Rule 74. Application and Purpose; Sanctions; Definitions.
(A) Application. The Special Rules for Election Challenges shall apply to a proceeding within the Ho-Chunk Nation (HCN) Court System where a party (or parties) seek(s) to challenge an election. Unless otherwise provided for in the Special Rules for Election Challenges, the HCN Rules of Civil Procedure and the HCN Rules of Appellate Procedure shall apply.
(B) Purpose. The Special Rules for Election Challenges conform to the special constitutional requirements and allow the Trial Judge to fairly hear and decide the case within the set time limits.
(C) Sanctions. Any failure by a party to comply with these rules may result in sanctions. The Trial Court judge may order sanctions at the discretion of the Court. Sanctions may include finding against an absent party on the matter for which a hearing was held or dismissal of the case with prejudice.
(D) Definitions. The following definitions shall apply to the Special Rules for Election Challenges:
Rule 75. Initiating an Election Challenge; Fees; Time; Service of Process; Required Attached and Information.
(A) Initiating an Election Challenge. A party may initiate an action in the Trial Court by filing the required Complaint along with a fifty dollar ($50. U.S) filing fee.
(B) Time. The action must be initiated within ten (10) days after the Election Board certifies the election results.
(C) Service of Process. The Complaint, Summons, and any Notice of a hearing shall be made on the Attorney General of the Ho-Chunk Nation and on the Chair of the Election Board within two (2) calendar days of the date of filing in the Trial Court and shall be accomplished by overnight, certified mail. The filing party shall pay such overnight, certified mailing costs. Service may be accomplished by facsimile transmission with leave of the Court and if such service will not prejudice any party. Should a party other than the Ho-Chunk Nation and Election Board be named, service of process shall be accomplished by overnight, certified mail. The filing party shall pay such overnight, certified mailing costs.
(D) Required Attachments and Information. The plaintiff shall attach to the Complaint a list of contact information for the purposes of Service of Process. The list shall include the day telephone number, evening telephone number and address of all named plaintiffs and their counsel, if retained. Those parties not having access to a phone or a fax are excused from providing a phone number or fax number, but must provide the Court with a reliable alternative means of contacting them.
Rule 76. Answering an Election Challenge.
(A) The defendant shall file an Answer to the Complaint within five (5) calendar days of the filing of the Complaint in the Trial Court.
Rule 77. Serving the Answer.
(A) On or before the day the Answer is filed, the defendants shall serve copies of the Answer and all related documents on all opposing parties or their counsel. A Certificate of Service shall be completed and attached to the Answer.
(B) All responsive pleadings must be served upon the opposing party or parties required by HCN R. Civ. P. 5(B).
Rule 78. Hearings; Notice of Hearings; Motion to Appear by Telephone.
(A) Hearing. The Trial Court may hold as many hearings as necessary to expedite the proceeding, including pre-trial hearings, status conferences, show cause hearings and evidentiary hearings.
(B) Notice of Hearings. Notice of any hearings shall be in writing and served at least twenty-four (24) hours prior to the hearing. Parties may waive the twenty-four (24) hour notice and may accept services by facsimile.
(C) Motion to Appear by Telephone. Parties may participate by telephone, at their own expense, if the Court grants the motion to appear by Telephone. The Court must find that a telephone appearance will not prejudice any party. Motions to appear by telephone must be in writing and made expeditiously to the Court.
Rule 79. Discovery.
All documents and things, answers to interrogatories, and responses to requests for admission requested during discovery shall be provided to the requesting party within three (3) calendar days unless otherwise ordered by the Court. Depositions will be conducted as the parties agree or as ordered by the Court.
Rule 80. Appeals.
(A) Appeals. The final judgment of the Trial Court is appealable to the Ho-Chunk Nation Supreme Court. The Appellant and/or Appellee may obtain a copy of the trial transcript at their own expense.
(C) Oral arguments. Oral arguments may be held at the discretion of the Chief Justice of the Supreme Court. Requests for oral argument should be made with the Notice of Appeal for the Appellant�s Brief or with the Appellee�s Response Brief.
(D) Written decisions. The Supreme Court shall hear and issue a written decision on the appeal within thirty (30) calendar days of the Notice of Appeal. The thirty (30) day requirement does toll, if and when, a recusal occurs and an appointment of a Justice Pro Tempore is sought from the HCN Legislature.
X. GENERAL PROVISIONS
Rule 81. Forms.
Sample forms are available through the Trial Court of the Ho-Chunk Nation and are intended to indicate the simplicity and brevity of statements contemplated by these rules.
Rule 82. Title.
These rules may be known and cited as the Ho-Chunk Nation Rules of Civil Procedure, and shall be abbreviated HCN R. Civ. P.
Rule 83. Effective Date.
These rules will take effect on the first Court work day after the date these rules are adopted by the Supreme Court of the Ho-Chunk Nation. They will govern all proceedings brought on or after that date. They will govern all proceedings pending on that date unless, in the discretion of the Trial Court, their application would not be feasible or would work injustice to the parties in the proceeding. In that event, the Trial Court shall devise procedures as are necessary for a full, fair and expeditious resolution of the proceeding.
Rule 84. Business Hours.
The Ho-Chunk Nation Court is open from 8:00 a.m. to 4:30 p.m. Monday through Friday, with the exception of holidays, closings due to inclement weather, or other unforeseen circumstances. For a document to be timely filed, it must be received and stamped by the clerk of court no later than 4:30 p.m. on the date due.
Rules of Civil Procedure;Adopted 5/11/96, Restated and Revised 02/22/97 by the Ho-Chunk Nation Supreme Court at the Ho-Chunk Nation Court Building in Black River Falls, Wisconsin from within the sovereign lands of the Ho-Chunk Nation. Rule 5 (C)(6) amended 6/5/99, amended 1/31/02.
Adopted this 22nd day of February 1996.