Metlakatla plaintiff motions rejected

KETCHIKAN — The federal judge assigned to the Civil Rights Act complaint of two Metlakatla residents, on Wednesday, denied two motions by the plaintiffs while ordering them to explain why a federal court should have jurisdiction in the matter.

Jim Scudero and Michele Gunyah, who ran for MIC mayor and secretary, respectively, filed a complaint under the Civil Rights Act on April 1 in the U.S. District Court in Ketchikan.

The federal complaint follows the March 18 dismissal in Metlakatla Tribal Court of a challenge to the election filed in that court. The complaint alleges several violations of the U.S. Constitution, Indian Civil Rights Act, the MIC Constitution and election ordinances before, during and after the 2015 election.

A writ of prohibition filed by Scudero and Gunyah on April 8 asks the federal court to disqualify the Metlakatla Tribal Court from presiding over any further proceedings stemming that case, and a motion for discovery submitted on Tuesday by the plaintiffs seeks the court to order an election audit.

MIC Mayor Audrey Hudson was re-elected in the 2015 election, receiving 392 votes to Scudero’s 351. Judith Eaton was elected MIC secretary, receiving 415 votes to Gunyah’s 333 votes, according to election information provided by MIC at the time.

Hudson, multiple MIC council members and MIC itself are named as defendants in the complaint.

Christopher Lundberg, an attorney with the Portland-based law firm Haglund Kelley LLP, serves as Metlakatla Indian Community’s general counsel. He and his clients cannot comment on pending litigation.

The order filed Wednesday by Chief U.S. District Judge Timothy M. Burgess also denies both the writ and the motion for discovery.

The writ argues that the federal court should “issue an order prohibiting … any further proceedings or (decisions on) any further motions in the (Metlakatla Tribal Court” because Scudero and Gunyah “have a well-grounded fear that judicial bias exists” in that court, according to Burgess’s order.

“The reason for this request is that counsel for defendants in the tribal court case ‘filed a motion to seek fees … after the plaintiff’s ‘Notice to Appeal’ was denied’ in the tribal court case,” according to Burgess’s order. “Plaintiffs contend that the motion for fees ‘can only be seen as a fear and intimidation tactic to discourage the plaintiff from advancing this case.’”

“ … None of plaintiff’s assertions or attached documents, however, provide this court with the grounds and authority for interfering with the motion for costs pending in the Metlakatla Tribal Court,” Burgess’s order continued.

As for the motion for discovery that requested an election audit, Burgess wrote that the “request is premature at this stage in the litigation.

“Furthermore, discovery is normally conducted in federal court, without judicial involvement, under the Federal Rules of Civil Procedure,” Burgess continued. “Only after a party fails to adequately respond to a proper request for discovery, may the party making the request file a motion asking for court assistance in obtaining the discovery.”

The order also states that the federal court “cannot discern the source of its jurisdiction” in this case from the complaint filed by Scudero and Gunyah.

No further action will be taken in this case until the plaintiffs comply with Burgess’s order. If they do not fully comply with the order, the case will be dismissed. Scudero and Gunyah must respond to Burgess’s order explain the source of the federal court’s jurisdiction over their complaint on or before May 13, according to the order.

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