Lawsuits of General Council, Legislature take step forward against each other

By Ken Luchterhand

Court action on General Council versus Legislature took a twist and turn on Thursday, Feb. 1, in Ho-Chunk Trial Court.
The two lawsuits were combined into one hearing in court, with Judge Mary Jo Hunter presiding.
Attorney Michael Murphy, representing the Ho-Chunk Legislature, argued that Attorney Daniel Finerty could not represent either General Council or Gerald Cleveland. In addition, Murphy argued that he did not have 10 days to provide a response to an amendment to the lawsuit against the Legislature.
One case, CV 1734, is Ho-Chunk Nation Legislature versus Gerald Cleveland, while the other case, CV 1735, is General Council versus Ho-Chunk Nation Legislature.
The lawsuits hinge on actions taken the General Council meeting at the Sept. 16, 2017, when an early vote adjourned the meeting before all resolutions were addressed. The meeting was resumed and the remaining resolutions were presented and voted upon.
However, the Ho-Chunk Legislature declined to take action on any resolutions after the initial adjournment.  Representatives for General Council have contended that the latter resolutions were addressed legally, with a quorum of Ho-Chunk members, and that the Ho-Chunk Constitution dictates that General Council resolutions must be acted upon by Legislature within 45 days. 
Finerty stresses that the definition of General Council is contained in the Ho-Chunk Constitution, Article IV, Section 1, which states:
“Powers of General Council. The People of the Ho-Chunk Nation hereby grant all inherent sovereign powers to the General Council. All eligible voters of the Ho-Chunk Nation are entitled to participate in General Council.”
By definition, General Council has authority above the Executive, Legislative and Judicial branches of Ho-Chunk government, Finerty said.
In the courtroom, representing General Council was Joy Thompson and Wendy Runninghorse, with attorney Finerty appearing in court via telephone. Finerty also represented Gerald Cleveland in the case against him a General Council. Cleveland was not present, something Finerty and Murphy agreed upon that he didn’t need to attend.
Attorney Michael Murphy, representing the Legislature, provided arguments on two issues. He argued against Finerty being able to represent General Council  or Cleveland in court. Murphy said the contract, which Legislature approved on Sept. 1, was between Finerty and the Office of General Council, but neither General Council itself or Cleveland.
As for the amendment to the lawsuit against Legislature, Murphy said that he did not have enough time to review and provide an answer to an amendment. Murphy contended that he is allowed 10 days to respond the amendment.
Finerty responded by saying he provided the amendment many weeks ago, but he didn’t provide the amendment within the full document, which was an oversight on his part.
Finerty said that the issues presented by Murphy were not a barrier to making a decision about future court appearances. He said the main issue is that the Legislature refused to  act upon resolutions passed by a quorum at the General Council meeting. He cited Article 4, Section 3A, which states:
“The General Council retains the power to set policy for the Nation. This policy shall be resolutions proposed and approved at Annual Meetings and Special Meetings, by a majority vote of the qualified voters of the Ho-Chunk Nation General Council. This policy shall be made into laws, including codes, ordinances, resolutions and statutes by the Legislative Branch of the Ho-Chunk Nation within forty-five (45) days after a majority vote of the qualified voters of the Ho-Chunk Nation General Council at Annual Meetings and Special Meetings. The Executive Branch shall enforce this policy within sixty (60) days of the majority vote of the qualified voters of the Ho-Chunk Nation General Council. In the event that this policy is not enacted by the Legislative Branch or enforced by the Executive Branch within fifteen (15) days of the aforementioned deadlines, the Ho-Chunk Nation General Council shall file suit in the Ho-Chunk Nation Tribal Court against elected officials of the Ho-Chunk Nation branch of government. The Supreme Court of the Ho-Chunk Nation shall have original jurisdiction within fifteen (15) days of filing date of suit.”
“When you look at what has been done by General Council, it all has been done with Constitution authority,” Finerty said.
Murphy said he still needed the full 10 days to respond and he only received the full document the week before the court hearing.
As for the approval of Finerty as Cleveland’s attorney, Finerty expressed that Legislature was extending “a little bit of overreach.”
Judge Hunter said that she preferred to wait until both parties had time to look at documents and respond to them, also to decide whether Finerty could represent Cleveland in court. Also, she wanted the attorneys’ briefings before the scheduling date. The briefings are their opinions on the cases and what they would like to see done to resolve the lawsuits.
Hunter offered two weeks, which fell on Feb. 14, but she said that might not work well for everyone involved because it was Valentine’s Day, so she extended it to Feb. 16. She said it would be a telephone hearing so that they were not required to make personal appearances in court. At that time, the schedule would be set for future court appearances concerning the two cases.
Judge Hunter said that she did not have to recuse herself from the case because, although she is an enrolled Ho-Chunk member, she did not attend the Sept. 16, 2017, General Council meeting. In addition, she knows that a publication concerning the cases was published by Legislature and mailed to members, which might influence her opinion on the cases, however, she did not read that publication, therefore she did not need to remove herself from the cases.
The legality of publishing and mailing of that document has been questioned by several Ho-Chunk members, since it may interfere with a court case in progress in a possible attempt to sway official or public opinion.
According to the court papers filed, the annual General Council session was called to order on Sept. 16, with more than 20 percent of the eligible voters, or at least 1,086 members, present. After a chairperson was approved and a secretary was appointed, the floor was opened to accept resolutions.
A slate of 18 resolutions were proposed and scheduled to be on the docket to be discussed and voted upon. Of the 18 proposed resolutions, 10 were approved by vote.
After the General Council session, Ho-Chunk Nation Attorney General Amanda WhiteEagle issued a legal opinion of the 2017 General Council Actions. On Oct. 3, outside counsel for the Office of General Council, Daniel Finerty of Lindner and Marsack, Milwaukee, provided a legal opinion as to the legality of the General Council resolutions.
Copies of the regular and condensed meeting transcripts were provided to Michael Murphy, Legislature counsel, on Oct. 6 and 10.
The Legislature subsequently considered and adopted a resolution, acknowledging that the 2017 General Council lawfully adopted all 10 resolutions that passed by voting at the General Council session.
“Nonetheless, the Legislature, by adopting the resolution, claimed that the meeting was ‘procedurally confusing’ in that a motion to adjourn was adopted by the General Council after Resolution H was approved, yet the Chairman of the meeting decided to continue the meeting,” the legal document stated.
“The Legislature, by adopting the resolution, concluded that ‘due to procedural problems with the 2017 General Council meeting, the Legislature deems it more reasonable to adhere to the first adjournment of the General Council on Sept. 16, 2017,’ which it nonetheless concluded complied with the General Council’s meeting procedures,” the legal document stated.
The letter warned that legal action would be taken if no action on reversing the decision had taken place by Nov. 14. Since no action had been taken, General Council filed a complaint first with the Executive Branch, then the Ho-Chunk Nation Trial Court on Nov. 15.
In addition, on Nov. 15, 2017, the Legislature filed a lawsuit against Gerald Cleveland, citing, “… the Chair of the September 16, 2017, General Council meeting acted beyond the scope of his authority in ignoring the General Council’s approved motion to adjourn and in allowing the General Council meeting to carry on as a Special Meeting.”