Legal briefs received on lawsuits involving Legislature and General Council

By Ken Luchterhand

Briefings have been filed on Feb. 16 in Ho-Chunk Trial Court in the two cases of Ho-Chunk Nation Legislature vs. Gerald Cleveland (CV 1734), and General Council vs. Ho-Chunk Nation Legislature (CV 1735).
The two cases have been combined in Trial Court, even though they are two separate cases.
In the Legislature vs. Gerald Cleveland case, Legislature claims Cleveland overstepped his authority when he continued the Sept. 16, 2017 General Council meeting.
In the General Council vs. Legislature suit, General Council is suing Legislature for not acting on resolutions passed at the same meeting, contrary to directives to Legislature as defined in the Ho-Chunk Constitution.
According to the briefings filed, Legislature Attorney Michael Murphy states that the Office of General Council doesn’t have the right to file a lawsuit; that Attorney Daniel Finerty should not be allowed to represent the General Council; and that the lawsuits between Legislature and General Council should be heard in Trial Court and not Supreme Court.
In Finerty’s briefings, on behalf of General Council, he states that the Office of General Council is authorized to represent General Council, therefore able to file lawsuit; that Finerty was offered a contract to represent Office of General Council which was approved by Legislature; and that the Ho-Chunk Constitution states that the Supreme Court has original jurisdiction in the case of General Council against Legislature. 
Murphy stated that the Office of General Council was established after the General Council Agency (GCA) was eliminated with a resolution at 2016 General Council meeting. Following that action, the Legislature established the Office of General Council with the Establishment Act.
“The Office of General Council shall provide such support and advocacy as are required by the job descriptions for the Office, duly approved by the Legislature of the Nation, and as may be further required by the General Council of the Nation,” Murphy wrote.
He goes on to state that the General Council, General Council Agency, and the Office of General Council are different.
“While the General Council, as an entity, would be a real party in interest to file litigation pursuant to Article IV, Section 3(a) of the Constitution, the same cannot be said for the Office of General Council. The Constitution does not authorize the Office of General Council to file suit,” Murphy stated.
Finerty disagrees in his briefing.
“Having set for the history, the Office is empowered by the Constitution with a grant of constitutional authority by the General Council ‘to accomplish the tasks mandated by the General Council,” Finerty wrote.
“A plain reading of this language in the context suggests that, when the General Council considers and adopts, by the majority of qualified voters, binding policy, as it did on ten (10) separate occasions of Sept. 16, 2017, each passage is a grant of authority by the General Council to the Office to see to it that the policy set by General Council is carried out by the Legislative Branch and the Executive Branches,” Finerty stated.
Murphy contends that Finerty has no right to represent General Council, since he was approved by Legislature to represent the Office of General Council.
Legislature approved an attorney contract and engagement for the law firm of Lindner & Marsack to provide legal representation to the Office of General Council. The Legislature approved the contract by Resolution 8-22-17G, Murphy stated.
“According to the contract with Lindner & Marsack, the sole client of the firm (and Finerty) was toi be the Office of General Council,” Murphy wrote. “At this point, it is clear the existing contract with Lindner & Marsack does not allow plaintiff’s counsel to represent the General Council.”
Finerty counters that Murphy’s claim is unfounded, saying the purpose of the Office of General Counicl is to represent General Council on all aspects.
“As no such constitutional restriction or limitation exists, any obligation suggested by the Legislature that some authority is required to proceed here is unfounded. It is not found is the Constitution and, therefore, does not exist. Further to the extent the Legislature attempts to create or impose barriers to the General Council’s suit, by way of obstructing the Office’s relationship with its attorney, which it already approved, such actions are directly asserted in the Amended Complaint as a attempts to interfere with the Plaintiff’s exercise of the rights granted under Article IV and part of this litigation,” Finerty wrote.
“It is disingenuous for the Defendants to suggest they approved the engagement but they did not approve the engagement detailed in the engagement letter they signed,” Finerty stated.
Murphy made the argument that there appears to be a conflict in the Constitution as to the court with original jurisdiction.
“The language about Supreme Court having original jurisdiction can be read if different ways,” Murphy wrote. “It could mean that the Supreme Court can hear appeal, or take up an original case, within fifteen days of when the General Council files a case in the Trial Court of the Nation. This could amount to something akin to removing an action from the Trial Court to the Supreme Court before the Trial Court even rules on the matter.
“On the other hand, if the reference to ‘original jurisdiction’ means that a  case under Article IV, Section 3(a) can bypass the Trial Court, appears to conflict with the Constitutional language in Article VII, Section 5(a), ‘Any such case or controversy arising within the jurisdiction of the Ho-Chunk Nation shall be filed in the Trial Court before any other court.’ Yet another way to read the provision is the parties have fifteen days to file an appeal in the Supreme Court after the final decision in the Trial Court,” Murphy stated.
Finerty refers to the Constitution, which says the Supreme Court has jurisdiction when General Council sues Legislature for inaction on resolutions.
“Accordingly, the Plaintiff’s filing against the Defendants was timely and appropriate under Article IV, Section 3(a). The language above compels the Trial Court to forward this matter to the Supreme Court so that it can heart the Plaintiff’s claim in the first instance,” he wrote.
Finerty does recognize the apparent contradiction in the Constitution, with Article IV, Section 3(a) in conflict with Article VII, Section 5(a), but offers a view that Article IV, Section 3(a) has precedence.
“When considering that Article IV, Section 3(a) was adopted in Amendment X to the Constitution in 2012 at a time when the foregoing language of Article VII, Section 5(a) was already present, that latter adopted should prevail over the earlier adopted provision,” Finerty wrote.
“A body, such as the Nation which knows of the earlier provisions of the Constitution when voting on later amendments which trumps the earlier language, the later adopted language in Article IV, Section 3(a) should prevail,” Finerty stated.
On that issue, Judge Mary Jo Hunter, presiding judge of the two cases, issued a written question to Supreme Court Chief Justice Todd Matha, Justice Samantha Skenandore, and Justice Tricia Zunker.
In the letter, Hunter asked:
“What is the meaning of ‘the Supreme Court shall have original jurisdiction within fifteen (15) days of filing of suit’ from Article IV, Section 3(a) of the HCN Constitution? a. That the case should be removed from the Trial Court to the Supreme Court; or b. That a party may appeal a Trial Court decision to the Supreme Court within fifteen (15) days after the issuance of a Trial Court decision.
“The Trial Court has stayed the proceedings in the underlying Trial Court cases until a response from Supreme Court is received by the Trial Court,” the letter states.