Court to decide on legal request after primary election

Scott Csernyik

10/13/2005 12:00:00 AM

A Tribal court judge is expected to rule Oct. 21-10 days after the primary election-over unresolved issues concerning a District 1 candidate and her attempt to circumvent and abolish mandatory drug testing for Tribal Council hopefuls.

The matter is expected to be heard before Saginaw Chippewa Community Court Judge Bruce E. Plackowski, who originally ruled against Delores Jackson's request for a temporary preliminary injunction on Sept. 8.

Jackson then took the matter before the Saginaw Chippewa Appellate Court who ruled against the lower court on three of the four criteria used to determine emergency relief in an Oct. 3 ruling.

In establishing the grounds for a temporary restraining order, the plaintiff has the burden of establishing the following four factors:

-Plaintiff will suffer irreparable harm without the order;

-Absence of substantial harm to the defendant;

-The order would serve the public interest; and

-Plaintiff's likelihood to prevail on the merits.

The appellate court opinion called the plaintiff's likelihood to prevail is "the most difficult [question] to resolve on appeal."

"In reaching this conclusion, the community court neither cited nor discussed any facts or case law," wrote Associate Justice Frank Pommersheim. "While this Court is sympathetic to the perceived exigencies that likely led to such a sparse record and opinion, it nevertheless effectively short-circuited the ability of this Court to exercise its reviewing (as opposed to supervisory) function.

"The abuse of direction standard assumes an adequate record to review and to make judgements about, but such a record is not currently before this Court on this issue. To find either party in such circumstances threatens potential unfairness and injustice for all. Despite what might appear to be unorthodox, this Court has no choice but to reverse and remand the community court's decision on this issue (not issues A, B, or C) for a full and immediate hearing..."

The appellate court ordered the community court to hear legal arguments pertaining to claims concerning the Saginaw Chippewa Tribal Constitutional, unreasonable search and seizure, freedom of religion, as well as defenses.

Since 1994, the Saginaw Chippewa Indian Tribe of Michigan has required a negative drug test prior to being a candidate for a Tribal Council election. On July 27, Tribal Council specified the test would be a hair follicle drug test. Prior to that time, the test was unspecified, but all testing was done by urine sample.

Nominating petitions were made available for the general election on Aug. 15 and due by Sept. 15. All final drug test results were to be returned to the Tribal Clerk's Office no later than one day prior to the approved date for the posting of the candidate list for the general election. According to the election schedule, the candidate's list was to be posted by 5 p.m. on Sept. 22.

In an Oct. 4 press release, Tribal officials defended the mandatory drug testing requirement.

"The Tribal Council believes that the mandatory drug testing requirement for Tribal Council candidates that has been in place since 1994 is needed to protect the Tribe and its community," according to the release. "While the Tribal Council respects the decisions of the Tribal Appellate Court, it is truly disheartening that the Court apparently paid little attention to the arguments raised and the complete factual record upon which the Tribal Court Judge based his decision."

A total of 57 candidates were on the Oct. 11 ballot, with District 1 Tribal members able to vote for up to 20. Of all the candidates, Jackson was the only one who refused to take the hair follicle drug test. The other 56 individuals took the test and passed.

In her lawsuit, filed Aug. 17, Jackson alleged violations of the 1986 amended Tribal Constitution and the Indian Civil Rights Act. She also maintained that amending Ordinance No. 4 within weeks of the election schedule "is procedurally unfair and places a chilling effect on plaintiff and other candidates interested in running for Tribal Council in the 2005 general election because candidates are being forced to choose between submitting to an unlawful search of their persons or forgoing the right to run for Tribal Council."

In its 10-page opinion, the appellate court recognized that "time became an important factor in the litigation" pertaining to scheduling court dates with respect to the Oct. 11 primary election.

But when the appellate court found the community court abused its direction in regard to absence of substantial harm to the defendant, the three justices ruled "there is no potential harm to the Defendant Tribe in this instance."

"The only potential harm alleged by the Tribe is that �the election process would be thrown into disarray' if preliminary relief is granted," stated the ruling. "We do not agree with that allegation. The election process will not be disturbed in any way. It will go forward each step of the way exactly as required by the Tribal Constitution and related Tribal ordinances."