Motions to Dismiss filed in pay raise lawsuit

by Jan 15, 2016NEWS ka-no-he-da0 comments





The defendants in a lawsuit filed in Cherokee Tribal Court on the issue of the disputed pay raises approved by Tribal Council in October 2014 have filed six Motions to Dismiss the case.  The Motions list various reasons for dismissal ranging from sovereign immunity of the plaintiffs to a lack of standing by the defendants.

The Motions filed state the following:

  • First Motion to Dismiss: “Defendants move to dismiss Plaintiffs’ claims on the grounds that Plaintiffs lack standing.” (One Feather Note: The Legal Information Institute from the Cornell University Law School states, “Standing, or locus standi, is a capacity of a party to bring suit in court…only those with enough direct stake in an action or law have ‘standing’ to challenge it.”)
  • Second Motion to Dismiss: “…said claims are barred in whole or in part by sovereign immunity, public official immunity, absolute immunity, legislative immunity, and/or other immunity doctrines.”
  • Third Motion to Dismiss: “…Plaintiffs have failed to exhaust their administrative remedies, including by pursuing potentially available relief directly from the Tribal Council.”
  • Fourth Motion to Dismiss: “Defendants move to dismiss Plaintiffs’ claims against Defendants Brown, Owle, Parker, and James Taylor on the grounds that Plaintiffs’ Complaint fails to state a claim upon which relief may be granted against these Defendants.”
  • Fifth Motion to Dismiss: “Defendants move to dismiss Plaintiffs’ claim for civil conspiracy on the grounds that it fails to state a claim upon which relief may be granted as it is not recognized by Cherokee law.”
  • Sixth Motion to Dismiss: “…Plaintiffs have failed to join one or more necessary parties.”

The Motions state that Meghann K. Burke, Asheville-based attorney for the plaintiffs, was served with the notice on Dec. 18, 2015.  She declined to comment on this ongoing litigation.

In addition to former Principal Chief Michell Hicks and former Vice Chief Larry Blythe, the following are named as defendants in the lawsuit and are being sued in their individual capacity:  former Tribal Council Chairwoman Terri Henry, Tribal Council Chairman Bill Taylor, former Birdtown Rep. Gene “Tunney” Crowe Jr., Yellowhill Rep. Alan B. Ensley, Birdtown Rep. Albert R. Rose, Painttown Rep. Virginia Lee Bradley (Tommye) Saunooke, former Big Cove Rep. Perry Shell, Cherokee County – Snowbird Rep. Adam Wachacha, former Yellowhill Rep. David Wolfe, former Cherokee County – Snowbird Rep. Diamond Brown, former Tribal Council Chairman James “Jim” Owle, former Wolftown Rep. Michael Parker, and former Big Cove Rep. James “Bo” Taylor.  Former EBCI Deputy of Finance Kim Peone is being sued in her official capacity.

Resolution No. 261 (2014), passed on Oct. 14, 2014, is the main point of contention in the lawsuit.  That legislation approved the FY2015 EBCI tribal budget and included pay raises for the members of Tribal Council which the EBCIJA alleges is in violation of Section 117-15(a) which states, “Pay increases for the Tribal Council members shall not exceed the amount appropriated in that fiscal year for Tribal employees.  These pay increases shall not take effect until the next elected Tribal Council members are seated…”

Wolftown Rep. Bo Crowe was the only one to vote against Res. No. 261 with Big Cove Rep. Teresa McCoy and Cherokee County – Snowbird Rep. Brandon Jones both being absent.

In the lawsuit, the EBCIJA alleges, “…the average Tribal employee pay raise was 1% of their salaries in 2013.  Historically, pay increases have averaged 3% of each employee’s then-existing salary.  Thus, Tribal Council pay raises far exceed ‘the amount appropriated in that fiscal year for Tribal employees’ un Cherokee Code 117-15(a).”

According to records from the EBCI Office of Budget and Finance that were attached to the official court documents filed with the lawsuit, the pay for the Tribal Council Chairman increased from $75,000 to $86,400.  The pay for the Vice Chairman increased from $72,500 to $83,500, and the pay for the other Tribal Council representatives increased from $70,000 to $80,600. The court document alleges that defendants Taylor, Brown, Owle and Parker all received “one-time lump-sum payments”.

In the past several months, there have been several pieces of legislation discussed and voted upon dealing with the lawsuit.  In November 2015, a resolution (Res. No. 47 – 2015) seeking Tribal Council to waive sovereign immunity in the case was killed.  At the time, Becky Walker, an EBCI tribal member who spoke on behalf of EBCIJA, commented, “There has been a black cloud hanging over our community since last October…all that we’re asking for is a Declaratory Judgment.  We’ve not asking for a settlement from the Tribe.”

Prior to debate on that resolution was a multi-session debate over legal representation for the defendants in the case.  In Annual Council on Oct. 14, 2015, Tribal Council passed a resolution (Res. No. 30 – 2015) stating that those named in the case would be responsible for their own representation.  Rep. McCoy submitted the resolution and stated at the time, “When we are charged, we are responsible.  We will step up and do what’s right…we will pay for our legal representation by ourselves.”

Eight days later, on Oct. 22, 2015, Council passed Res. No. 36 (2015) which rescinded Res. No. 30 and provides for a case-by-case review of legal service fees.  Co-introduced by Yellowhill Rep. Anita Lossiah and Birdtown Rep. Travis Smith, the legislation states that if an elected official is found by a court of law “to have been acting outside the scope of his or her official authority”, then the Tribe will require repayment of legal fees incurred.