FIVE COMPONENT PARTS OF AN INITIAL PLEADING

FIVE COMPONENT PARTS OF AN INITIAL PLEADING

Presenter: Dav id Wi l son- S ta f f A t torney

INITIAL PLEADINGS

HCN R. Civ. P. 3. Complaints.

General. A civil action begins by one of the following procedures:

(A) filing a written Complaint with the Clerk of Court and paying theappropriate fees. The Complaint shall contain short, plain statements of thegrounds upon which the Court’s jurisdiction depends, the facts andcircumstances giving rise to the action, and a demand for any and allrelief that the party is seeking. Relief should include, but is not limited to,the dollar amount that the party is requesting. The Complaint must containthe full names and addresses of all parties and any counsel, as well as atelephone number at which the complainant may be contacted. TheComplaint shall be signed by the filing party or his/her counsel, if any.

INITIAL PLEADINGS

Petition

Government as respondent

Petitioner and respondent

Complaint

Individual or Government as defendant

Plaintiff and defendant

INITIAL PLEADING

Five (5) Required Components:� Jurisdiction

� Body

� Remedy/Relief

� Identity

� Signature

PART I: JURISDICTION

Procedural Basis: “The Complaint shall contain short, plain statements of the grounds upon which the Court’s jurisdiction depends . . . .”� HCN R. Civ. P. 3(A)

•Subject Matter

•Personal

PART I(A): SUBJECT MATTER JURISDICTION

Constitutional Conferral of Authority: “The Trial Court shall have original jurisdiction over all cases and controversies, both criminal and civil, in law or in equity, arising under the Constitution, laws, customs and traditions of the Ho-Chunk Nation.” � CONST., ART. VII, § 5(a)

If the dispute or cause of action does not arise from “the Constitution, laws, customs [or] traditions of the Ho-Chunk Nation” in the first instance, then the Court lacks subject matter jurisdiction to hear the claim. CONST., ART. VII, § 5(a). Muriel Whiteagle-Lee v. Judy Whitehorse et al., CV 09-06 (HCN Tr. Ct., Mar. 18, 2009) at 6.


Statutory Conferral of Authority: “The Ho-Chunk Judiciary shall exercise jurisdiction over all matters with [sic] the power and authority of the Ho-Chunk Nation including controversies arising out of the Constitution of the Ho-Chunk Nation; laws, statutes, ordinances, resolutions, and codes enacted by the Legislature; and such other matters arising under enactments of the Legislature or the customs and traditions of the Ho-Chunk Nation.” � HCN JUDICIARY ESTABLISHMENT & ORG. ACT, 1 HCC § 1.4


Cases and Controversies

� Judicial Power: “[T]he exercise of the judicial power is limited to ‘cases’ and ‘controversies.’ Beyond this it does not extend, and unless it is asserted in a case or controversy within the meaning of the Constitution, the power to exercise it is nowhere conferred.”

Muskrat v. United States, 219 U.S. 346, 356 (1911)

� “A controversy is ‘the thing in dispute’; a dispute of law that grants the HCN courts subject matter jurisdiction. A dispute in law in which the HCN Trial Court can apply.”

Ho-Chunk Nation v. Harry Steindorf et al., CV 99-82 (HCN Tr. Ct., Feb. 11, 2000) at 3, aff'd, SU 00-04 (HCN S. Ct., Sept. 29, 2000).


Cases and Controversies� Distinction: “The term ‘controversies,’ if distinguishable at all from ‘cases,’ is so in that

it is less comprehensive than the latter, and includes only suits of a civil nature. . . . The term[s] impl[y] the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.” Id. at 356-57 (citation omitted)

� Muskrat v. United States, 219 U.S. 346, 356-57 (1911) (citation omitted)


Custom and Tradition:� Articulated by Traditional Court

� grandparent visitation, contract disputes


“The Trial Court shall have original jurisdiction over all cases and controversies, both criminal and civil, in law or in equity, arising under the Constitution, laws, customs and traditions of the Ho-Chunk Nation.”

CONST., ART. VII, § 5(a)


Applicable Law v. Executive Proclamation

� Executive Orders: “‘[T]he binding nature of [an e]xecutive [o]rder is limited to the Executive's authority to issue such an order . . . .’ Jean Day et al. v. HCN Pers. Dep't, CV 96-15 (HCN Tr. Ct., Aug. 21, 1996) at 5. The President's capacity to execute laws does not extend so far as to permit the promulgation of laws. ‘“The duty of the President to see that the laws be faithfully executed is a duty that does not go beyond the laws or require him [or her] to achieve more than [the legislative branch] sees fit to leave within his [or her] power.”’” � David Abangan v. HCN Dep’t of Bus., CV 01-08 (HCN Tr. Ct., Mar. 25, 2003) at 21

(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring) (quoting Myers v. United States, 272 U.S. 52, 177 (1926))) (footnote omitted)


Applicable Law v. Executive Proclamation

�Agency By-Laws: “The plaintiff purports to allege a violation of law, namely a violation of an unsubstantiated bylaw. . . . The Court notes that it is problematic when an agency does not follow its internal directives or provides the public with faulty internal directives, however these directives do not have the force of law.” � Muriel Whiteagle-Lee v. Judy Whitehorse, Chair et al., CV 09-06 (HCN Tr. Ct., Mar.

18, 2009) at 7 (citing David Abangan v. HCN Dep’t of Bus., CV 01-08 (HCN Tr. Ct., Mar. 25, 2003))


Necessity of Presence

�No Substitute Course: “[S]ubject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.”� United States v. Cotton, 535 U.S. 625, 630 (2002)

�Obligation to Ensure: “[C]ourts . . . have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”� Arbaugh v. Y & H Corp., 126 S. Ct. 1235, 1244 (2006)


Necessity of Presence

� Timeliness of Objection: “[I]t has been the virtually universally accepted practice of the federal courts to permit any party to challenge or, indeed, to raise sua sponte the subject matter jurisdiction of the court at any time and at any stage of the proceedings. . . . [J]urisdiction otherwise lacking cannot be conferred by consent, collusion, laches, waiver, or estoppel.”� Sadat v. Mertes, 615 F.2d 1176, 1188 (7th Cir. 1980)


Necessity of Presence� Independent from Merit: “Jurisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.”� Bell v. Hood, 327 U.S. 678, 682 (1946)

PART I(B): PERSONAL JURISDICTION

Constitutional Conferral of Authority: � “The jurisdiction of the Ho-Chunk Nation shall extend to all [tribal] territory . . . and to

any and all persons or activities therein . . . .”

� CONST., ART. I, § 2

� “The Ho-Chunk Nation, in exercising its powers of self-government, shall not . . . deprive any person of liberty . . . without due process of law.”

� CONST., ART. X, § 1(a)(8)


Statutory Conferral of Authority:

� “The jurisdiction extends over the Nation and its territory, persons who enter its territory, its members, and persons who interact with the Nation or its members wherever found.”� HCN JUDICIARY ESTABLISHMENT & ORG. ACT, 1 HCC § 1.4

� “[F]acilitating the extension of jurisdiction over legal persons and entities, who have consented to jurisdiction or by their presence within the territory acquiescence to the government’s protection, is a necessary and legitimate function of the government.”

� LONG ARM ORDINANCE, 2 HCC § 15.2


Existence� Dual Criteria: “In order for a court to validly exercise personal jurisdiction over a

non-resident defendant: (1) a statute must authorize service of process on the non-resident defendant, and (2) the service of process must comport with the Due Process Clause.”

� In re Celotex Corp., 124 F.3d 619, 627 (4th Cir. 1997)


Existence� Effect of Long-Arm Statute: “Because the . . . legislature designed its long-arm

statute to extend personal jurisdiction to the limits allowed by . . . due process, our normal two-step inquiry merges into one.”

� Ellicott Mach. Corp. v. John Holland Party, Ltd., 995 F.2d 474, 477 (4th Cir. 1993)


Existence

� Due Process Considerations: “The Court has noted three reasons why a State should be able to assert jurisdiction over non-residents who purposefully direct their activities toward that State. First, a State has an obvious interest in providing a forum for its resident to redress injuries inflicted by non-residents. Second, it would be unfair not to allow jurisdiction where the defendant has derived benefits from the activities directed toward the forum State. Finally, modern methods of transportation and communication make it much less onerous now for a person to defend himself in a remote forum.”� Pittsburgh Terminal Corp. v. Mid Allegheny Corp., 831 F.2d 522, 525-26 (4th Cir.

1987) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-74 (1985))


Existence� Primary Consideration: “Notwithstanding these considerations, the constitutional

touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.”

� Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)); see also Ho-Chunk Nation v. Ross Olson, CV 99-81 (HCN Tr. Ct., Sept. 18, 2000) at 11-13


Ability to Waive

� Individual Right: “The requirement that a court have personal jurisdiction flows . . . from the Due Process Clause. The personal jurisdiction requirement recognizes and protects an individual liberty interest. It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. . . . Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived.”� Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-03 (1982)


Ability to Waive� Failure to Respond: “A party that fails to raise a defense of lack of personal

jurisdiction at the appropriate time is deemed to have conferred personal jurisdiction on the court by consent.”

� Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990)


Ability to Waive

� Initial Judicial Review: “Jurisdictional objections to the court's power over the person are waived unless timely asserted by motion or answer. Thus, because personal jurisdiction may be conferred by consent of the parties, expressly or by failure to object, a court may not sua sponte dismiss for want of personal jurisdiction, at least where a defendant has entered an appearance by filing a motion, as here, or otherwise.” � Zelson v. Thomforde, 412 F.2d 56, 58-59 (3rd Cir. 1969) (citations omitted)

PART II: BODY

Procedural Basis: “The Complaint shall contain . . . the facts and circumstances giving rise to the action . . . .”� HCN R. Civ. P. 3(A)

PART II: BODY

Tribal Interpretation

� Facts, Not Claims: “Rule 3(A) intentionally speaks in terms of ‘facts and circumstances’ as opposed to ‘claims.’ The defendant expresses doubt over the validity of the claim, but it shall have ample opportunity to address that issue following submission of a responsive pleading. . . . Since a litigant, pro se or otherwise, may fail to properly employ legal principles or standards . . . , Rule 16(A) implicitly acknowledges the existence of a Complaint devoid of reference to law or the misguided application thereof.”

Casey A. Fitzpatrick v. Ho-Chunk Nation, CV 99-31 (HCN Tr. Ct., June 25, 1999) at 4

PART III: REMEDY

Procedural Basis: “The Complaint shall contain . . . a demand for any and all relief that the party is seeking.”� HCN R. Civ. P. 3(A)

� Constitutional Basis: “The Trial Court shall have the power to issue all remedies in law and in equity including injunctive and declaratory relief and all writs including attachment and mandamus.”

� CONST., art. VII, § 6(a); see also James Smith et al. v. Ron Wilbur, SU 99-12 (HCN S. Ct., Feb. 8, 2000) (limiting relief in a default judgment to that requested in the pleading)

PART III: REMEDY

Legal Relief� Money Damages: “[T]he relief sought here -- actual and punitive damages -- is the

traditional form of relief offered in the courts of law.”

� Curtis v. Loether, 415 U.S. 189, 196 (1974)

PART III: REMEDY

Sovereign Immunity

Section 1. Immunity of Nation from Suit.

The Ho-Chunk Nation shall be immune from suit except to the extent that the Legislature expressly waives its sovereign immunity, and officials and employees of the Ho-Chunk Nation acting within the scope of their duties or authority shall be immune from suit.

Section 2. Suit Against Officials and Employees.

Officials and employees of the Ho-Chunk Nation who act beyond the scope of their duties and authority shall be subject to suit in equity only for declaratory and non-monetary injunctive relief in Tribal Court by persons subject to its jurisdiction for purposes of enforcing rights and duties established by this constitution or other applicable laws.

HCN CONST., ART. XII §§ 1-2.

PART III: REMEDY

Equitable Relief� In General: “The term ‘equitable relief’ can assuredly mean . . . whatever relief a

court of equity is empowered to provide in the particular case at issue. But . . . ‘equitable relief’ can also refer to those categories of relief that were typicallyavailable in equity (such as injunction, mandamus, and restitution, but not compensatory damages).”

� Merten v. Hewitt Assocs., 508 U.S. 248, 256 (1993)

PART III: REMEDY

Equitable Relief� Basic Test: “The basis of injunctive relief in the federal courts has always been

irreparable harm and inadequacy of legal remedies.”

� Bacon Theatres v. Westover, 359 U.S. 500, 506-07 (1959)

� The standard for granting injunctive relief has been set forth in Warner, et al v. Ho-Chunk Nation Election Board, CV-95-03 (HCN Tr. Ct. June 26, 1995), Order Granting Stay, as follows: (1) no adequate remedy at law; (2) the threatened injury to the petitioner outweighs the harm of the injunction; (3) the petitioner has a reasonable likelihood of success on the merits and (4) granting the injunction serves the public interest. HCN Election Bd. et al. v. Aurelia Lera Hopinkah, SU 98-08 (HCN S. Ct., Apr. 7, 1999) at 8-9.

PART III: REMEDY

Equitable Relief� Ancillary Monetary Impact: “Our cases have long recognized the distinction between an action at law for damages -- which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation -- and an equitable action for specific relief -- which may include an order providing for the reinstatement of an employee with backpay, or for ‘the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer's actions.’ Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949) (emphasis added). The fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as ‘money damages.’”� Bowen v. Massachusetts, 487 U.S. 879, 893 (1988)

PART III: REMEDY

Equitable Relief� Specificity: “‘The term “money damages” . . . normally refers to a sum of money used

as compensatory relief. Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies “are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled.”’”

� Bowen v. Massachusetts, 487 U.S. 879, 895 (1988) (quoting Md. Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1446 (D.C. Cir. 1985))

PART III: REMEDY

Equitable Relief� Effect of Injunction:

� “An injunction is a prohibitive writ issued by a court of equity forbidding a party-defendant from certain action, or in the case of a mandatory injunction, commanding positive action.” � United Bonding Ins. v. Stein, 410 F.2d 483, 486 (3rd Cir. 1969)

� “Injunctions are appealable without regard to finality . . . , and this is true of mandatory injunctions -- orders to do -- as well as of the more common negative injunctions, which are orders not to do, or to stop doing.” � Chrysler Motors Corp v. Int’l Union, 909 F.2d 248, 249 (7th Cir. 1990)

PART III: REMEDY

Equitable Relief� Types of Relief

� Restitution: “‘[R]estitution, in contrast to damages, is a remedy commonly ordered in equity cases and therefore an equitable remedy in a sense in which damages, though occasionally awarded in equity cases, are not.’”

� Great-West Life & Annuity Ins. v. Knudson, 534 U.S. 204, 215 (2002) (quoting Reich v. Cont’l Cas. Co., 33 F.3d 754, 756 (7th Cir. 1994))

PART III: REMEDY


� Specific Performance

� Outstanding Monetary Obligation: “[A]n injunction to compel the payment of money past due under a contract, or specific performance of a past due monetary obligation, was not typically available in equity.”

� Great-West Life & Annuity Ins. v. Knudson, 534 U.S. 204, 210-11 (2002)

PART III: REMEDY


� Specific Performance

� Property Isolation: “[F]or restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant’s possession.”

� Great-West Life & Annuity Ins. v. Knudson, 534 U.S. 204, 214 (2002)

PART III: RELIEFEquitable Relief� Types of Relief

� Job Retention: “[I]t is clear that judgments compelling ‘employment, reinstatement or promotion’ are equitable.”

� Lorrilard v. Pons, 434 U.S. 575 n.11 (1978) (citation omitted)

PART III: RELIEF


� Backpay: “[T]he remedy of backpay did not exist at common law. . . . A backpay claim is remedially analogous to personal injury or breach of contract claims because backpay awards compensate employees for lost wages and benefits before trial. Backpay is compensatory because the award is measured by an employee's loss rather than an employer's gain.”

� Millsap v. McDonnell Douglas Corp., 368 F.3d 1246, 1252-53 (10th Cir. 2004) (citations omitted)

PART III: RELIEF

Declaratory Relief

�Categorization: “Actions for declaratory judgments are neither legal nor equitable . . . .”� Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 284 (1988)

� Justification: “A less intrusive remedy than an injunction, a declaratory judgment provides relief when legal or equitable remedies are too intrusive or are otherwise inappropriate.” � Dickinson v. Ind. State Election Bd., 933 F.2d, 497 (7th Cir. 1991) (citing Steffel v.

Thompson, 415 U.S. 452, 466-67 (1974))

PART IV: IDENTITY

Procedural Basis: “The Complaint must contain the full names and addresses of all parties and counsel, as well as a telephone number at which the complainant may be contacted.”� HCN R. Civ. P. 3(A)

PART IV: IDENTITY

Minimum Information : “Upon order of the Court for good cause shown, service of process may be accomplished by publishing the contents of the Summons. . . . In the case of non-members of the Ho-Chunk Nation, the contents of the Summons . . . 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.” � HCN R. Civ. P. 5(C)(1)(f)

PART IV: IDENTITY

Absence of Personal Jurisdiction: “Incomplete or improper service results in a lack of jurisdiction over the person incompletely or improperly served.” � HCN R. Civ. P. 5(F)

Dismissal for Lack of Service: “A Complaint must be served and proof of service filed with the Court within one-hundred twenty (120) calendar days of filing, or it will be considered dismissed without prejudice by the Court with notice provided to the filer.”� HCN R. Civ. P. 5(G)

PART IV: IDENTITY

Subsequent Mailing: “After the first successful service of process, the Court and the parties will then perform all written communications through regular mail at that address. Therefore, each party to an action has an affirmative duty to notify the Court and all other parties of a change of address within ten (10) calendar days of such change.” � HCN R. Civ. P. 5(C)(3)

PART V: SIGNATURE

Procedural Basis: “The Complaint shall be signed by the filing party and his/her counsel, if any.� HCN R. Civ. P. 3(A)

PART V: SIGNATURE

Testament: “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 that the person knew, or should have reasonably known, was relevant to the action.” � HCN R. Civ. P. 16(A)

PART V: SIGNATURE Acceptance of Responsibility: “[T]he Ho-Chunk Nation Supreme Court adopts by reference the Wisconsin Court Rules of Professional Conduct for Attorneys (SCR Chapter 20) for the Ho-Chunk Nation Courts.” � In Re Adoption of Rules of Prof’l Conduct for Att’ys (HCN S. Ct., Aug. 31, 1996)

Potential Ramifications: “Individuals wishing to file an action in the HCN Court System are responsible for acquiring their own legal representation. . . . Lay Advocates are expected to adhere to all Rules of the Court and conduct themselves with utmost professionalism. . . . Individuals dissatisfied with their representation must address those issues with the Lay Advocate and file necessary action to gain satisfaction.” � Gary Lonetree, Sr. v. John Holst, as Slot Dir., et al., SU 98-07 (HCN S. Ct., Apr. 29, 1999) at 10

INITIAL PLEADING

Five (5) Required Components:� Jurisdiction

� Subject Matter

� Personal

� Body

� Remedy/Relief

� Identity

� Signature

QUESTIONS & ANSWERS

Documents

FIVE COMPONENT PARTS OF AN INITIAL PLEADING