Wednesday, June 24, 2015

Pechanga DENIED Appeal in Cosentino v. Fuller. Embarrassingly Swift Loss for Their Attorneys. Amicus Brief by BIA's Dutschke's Niece NOT Needed. PALA loses.

It was but a FEW SHORT days ago when we wrote that the Pechanga Attorney had filed for a rehearing in the Cosentino v Fuller case, you 'member:

The attorney who LOST a 3-0 decision, wants to re-try the case in his filings in the Benedict Cosentino case.  Attorney Frank Lawrence does what EVERY LOSER does, file for a rehearing.   in his filings linked here it appears that he's trying to argue the case again.  I admit I'm not a lawyer, but I started watching legal shows as a kid, maybe the Defenders or Perry Mason.  I'm pretty sure you can't win an appeal hearing with this.

"OH, wait you're HONORS, I forgot to argue this at trial"  doesn't seem to be a winner.  It makes one think that even Pechanga's John Macarro, who couldn't pass the CA bar, would know that.  WHO's PAYING THESE GUYS?  They had an opportunity to give evidence ... AT TRIAL.

I'd love to think  the appellate court reads my blog, (like the Justice Department, Congress, BIA, and Interior does regularly) but most likely it was so easy to decide, they took a few short weeks from the filing.

How embarrassing to be rebuked in this manner:

The issue we decided was whether sovereign immunity applied to protect Defendants from plaintiffs’ claims, and we decided that issue based on Turner v. Martire (2000) 82 Cal.App.4th 1042, and the other cited cases addressing sovereign immunity for tribal officials. Defendants were given and full and fair opportunity to brief and argue that issue and those authorities. The remainder of the rehearing petition is an attempt to reargue the merits of the case that likewise does not warrant rehearing.

AND:

Defendants’ request to depublish the opinion also is DENIED. A depublication request is properly directed to the Supreme Court. (Cal. Rules of Court, rule 8.1125.) A request that we depublish our own opinion is essentially a request that we reconsider our decision to publish the opinion. We decline to do so. 


You can read the Cosentino v Fuller Denial Here .   Oh, and the Amicus brief the niece of BIA's Amy Dutschke filed?   Not mentioned.... LOL...  Pechanga people, DEMAND that Mark Macarro and his council get the HOUSE IN ORDER.  With this kind of management, you could lose EVERYTHING>

25 comments:

'aamokat said...

The only card they can play is we are a sovereign nation and we can do anything within our lands we want to and nobody can tells us we can't do it. This is a chip taken out of the abuse of sovereignty in tribes like Pechanga.

Anonymous said...

Excellent news!

Anonymous said...

Perry Mason ,..Lol (my cousin vinny)

Anonymous said...

Pala Band of Mission Indian Members: Did you authorize Sara Dutschke and Ian Barker to file the AMICUS CURAE on your behalf?

Once again, must be nice to throw your money away on lawsuits that you didn't authorize. How much did this junk cost you anyways?

P-A-T-H-E-T-I-C.

Anonymous said...

Pala lost?

Anonymous said...

PALA didn't even get into the GAME.... They got all dressed up with a brief and the Appeals court didn't even look at it.

How much are the attorney's getting paid, again? Even John Macarro should have seen this..

Anonymous said...

Pala is in the 9th circuit.

Anonymous said...

What is happening in pala? Can R&R explain?

Anonymous said...

How much per hour to put together a 35 page brief? 50 per page? Is it a retainer?

How much does incompetence cost?

Anonymous said...

It is a great decision for Indian Country. Tribal Governments can be held accountable. Not tribes but those that run the tribes. That is what they asked reconsideration about. Tribes need to remember, tribes are sovereign so long as they do not violate tribal, state and federal laws. If they do violate these laws, then they are not sovereign.

Anonymous said...

This is definitely promising news towards the tides turning. Hopefully it is the first domino to fall. It shows how corrupt these tribal committees are trying to join together to keep the right people from being able to fight for their rights. To join together using tribal money to pay for these very expensive lawyers to try to keep a case from being published so that it can be referred to in future cases, reveals their knowledge that they are in the wrong and very corrupt, maybe this too will be useful. It is an admission of guilt, because they would not have bothered or needed to bring Pala in on it.

Reinstatement_Restitution said...

It is a revealing move for the Pala attorneys to attempt to reopen the matter by offering new evidence. There was a lawsuit filed against the Pala EC claiming they overstepped their authority when they disenrolled the Britten descendants. The 9th Circuit court of appeals upheld the lower court decision that the Pala EC was acting in its official capacity and was therefore entitled to the protection of sovereign immunity..

It appears that the Pala EC fears others might seek to sue and use the Cosentino decision as precedent. They obviously did not like the ruling. In my opinion the Pala EC has run roughshod over tribal law and given themselves the power to enact ordinances without the approval of the General Council. This is a clear example of overstepping authority since the Constitution states that the General Council is the governing body of the Band.

Up to this point the Court has steered clear of these cases claiming lack of jurisdiction. The only reason the Cosentino case was heard was because it involved a party outside the tribe.

This type of infringement on sovereignty will probably not be useful to tribal members seeking recourse to actions of tribal leaders. These are obviously internal tribal affairs and the courts should not intervene. However, if former tribal members are prepared to sue as US Citizens, and seek remedies outside the purview of the tribe there is an opportunity to use this precedent.

It will take some brave disenrollees to forego reinstatement and file suit for civil rights violations in a tribe that offers ICRA protections in its governing document.

Does Pala fit that description? Yes.

Anonymous said...

No tribe, with the exception of the Onondaga, are truly "sovereign" due to the fact that tribes accept federal monies with stipulations on how those monies can be spent. Sovereignty is an illusion.

Perry Mason wannabe said...

The only reason the Cosentino case was heard was because it involved a party outside the tribe.

That is correct,look at California civil code 52.1 and study that.

If you could state a claim or (hook under the above code) lets talk.

But membership always goes back to the santa clara case and then your dead.

Anonymous said...

So are you saying disenrollees are a party inside the tribe?

Anonymous said...

Membership should be determined by the tribe. But it should be done fairly, based on hard evidence. And everyone should have to abide by the same standards. I do not believe this is the case in pala. It seams that the disenrolled have more than proven the should be members.

Reinstatement_Restitution said...

It depends on what you're arguing in court, and what remedy you are seeking. Most of the disenrollment cases claim that the tribes violated tribal law, or that the tribes terminated members without just cause. The complainants seek to be reinstated. These are internal tribal matters because the disenrollees claim to be tribal members.

The Courts will routinely dismiss such cases because they have no jurisdiction and the tribes have sovereign immunity. If disenrollees filed suit as US Citizens whose civil rights were violated, or perhaps filed civil suit for fraud then the Courts might not so readily dismiss. It is fraud to steal tribal benefits by illegally terminating membership, but the Courts most likely would still dismiss such suits unless the arguments avoided the issues of disenrollment and reinstatement.

It is definitely a tricky puzzle, but now there is a court ruling that tribal employees are not entitled to immunity when they act outside their authority. Defining the limits of that authority, demonstrating action outside the limits, and asking for a remedy that does not involve the tribe is a possible path to success.

In the Cosentino case it was clear that the gaming committee terminated his employment for personal reasons. They actually said as much. No immunity for them because they didn't follow the rules.

Anonymous said...

In the Cosentino case , it was a tort case ( civil wrongs )by those tribal members. It was not about membership but, business ethics .

If you even mentioned membership they would cry "santa clara", and the tribes right to say who's a member.

They would also state, private right of action. The case would be tossed into Fedral court and dismissed.

This is not the first casino labor issue case ( where a tribe lost).

It is interesting how this case (trumps) the (IGRA) private right of action.

Anonymous said...

Once tribes illegally remove federal recognized tribal members, they are acting as the federal government, therefore have forfeited sovereignty. Simple.

Reinstatement_Restitution said...

What tribes forfeit when they disenrollment is authority over the terminated members. Ex-members are no longer bound by tribal law, and even though the has jurisdiction over the land, ex-members do not have to comply with any attempts to enforce tribal law. It is a sticky situation. Tribes can make it very difficult for allottees and residents of the reservation so there may be little benefit in refusal to comply. It still is an option for disenrollees to explore.

Anonymous said...

It wasn't the Tribe that disenrolled in the Pala case,it was the 5 council members that took it upon them selfs to disenroll without even consulting the Tribe, as a whole.Those greedy fuckers.

Anonymous said...

Same at Pechanga, except the band did vote to stop ALL disenrollments and accept ALL currently enrolled members. The council allowed the band to loose its rights, ignored and dishonored the band, disrespect ALL elders and ALL ancestors who gave us our rights.

FUCK_Reinstatement_Restitution said...

Actually we voted on it

FUCK_Reinstatement_Restitution said...

Actually we voted on it

FUCK_Reinstatement_Restitution said...

Actually we voted on it