state of utah, and/or roosevelt city corporation v. david
TRANSCRIPT
Brigham Young University Law SchoolBYU Law Digital Commons
Utah Court of Appeals Briefs
2002
State of Utah, and/or Roosevelt City Corporationv. David P. Slim : Brief of AppelleeUtah Court of Appeals
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Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.Clark B Allred; Clark A. McClellan; McKeachnie, Allred, McClellan and Trotter; Attorneys forPlaintiff.David Slim; Attorney Pro Se.
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Recommended CitationBrief of Appellee, Utah v. Slim, No. 20021031 (Utah Court of Appeals, 2002).https://digitalcommons.law.byu.edu/byu_ca2/4093
IN THE UTAH COURT OF APPEALS
ROOSEVELT CITY,
Plaintiff/Appellee,
vs.
DAVID P. SLIM,
Defendant/Appellant,
Appeal No. 20021031-CA
Case No. 022000723 TC
BRIEF OF APPELLEE ROOSEVELT CITY
Appeal From the Order of the Eighth Judicial District Court of Duchesne County Honorable,A. Lynn Payne
Clark B Allred Clark A. McClellan McKEACHNIE, ALLRED, McCLELLAN & TROTTER, 121 West Main Street Vernal, Utah 84078 FAX: (435) 789-4918 PHONE: (435) 789-4908
David Slim Attorney Pro-Se P O Box 1671 Roosevelt, UT 84066
Attorney for Plaintiff/ Appellee
Defendant/Appellant
FILED , Dteh Court of An-nows
APR 18 2003
Pautette Su, ::^ Cleric of the C HJrt
IN THE UTAH COURT OF APPEALS
ROOSEVELT CITY,
Plaintiff/Appellee,
vs.
DAVID P. SLIM,
Defendant/Appellant.
Appeal No. 20021031-CA
Case No. 022000723 TC
BRIEF OF APPELLEE ROOSEVELT CITY
Appeal From the Order of the Eighth Judicial District Court of Duchesne County Honorable A. Lynn Payne
Clark B Allred Clark A. McClellan McKEACHNIE, ALLRED, McCLELLAN & TROTTER, 121 West Main Street Vernal, Utah 84078 FAX: (435) 789-4918 PHONE: (435) 789-4908
P.C.
David Slim Attorney Pro-Se P O Box 1671 Roosevelt, UT 8406(
Attorney for Plaintiff/ Appellee
Defendant/Appellant
TABLE OF CONTENTS
TABLE OF CONTENTS i
TABLE OF AUTHORITIES iii
STATEMENT OF JURISDICTION 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW AND STANDARD
OF REVIEW 1
APPLICABLE STATUTES AND RULES 1
STATEMENT OF THE CASE 1
STATEMENT OF FACTS 3
SUMMARY OF ARGUMENT 3
ARGUMENT 4
POINT I THE JURISDICTIONAL ISSUE HAS BEEN RAISED AND REJECTED IN PRIOR DECISIONS OF THE UTAH SUPREME COURT, THE TENTH CIRCUIT COURT OF APPEALS AND THE UNITED STATES SUPREME COURT 6
POINT II
ROOSEVELT CITY SHOULD BE REIMBURSED FOR THE LEGAL FEES INCURRED ON APPEAL 6
CONCLUSION 9
i
TABLE OF AUTHORITIES
Case Law
Parkside Salt Lake Corp. v. Insure-Rite, 37 P.3d 1202
(Utah Ct. App. 2001) 1
State v. Coando, 858 P.2d 926 (1992) 5,6
State v. Haaen, 510 U.S. 399, 114 S.Ct. 958 (1994) . . . 6
State v. Haaen, 858 P.2d 926 (Utah 1992) 5,6,8
State v. Hodges, 2002 Utah 117 (Dec. 2, 2002) 7
State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994) . . . . 1,7
State v. Perank, 858 P.2d 927 (Utah 1992) 5 Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997) 3,6
Utah Code Annotated
Utah Code Ann. §78-2a-3 (2) (j ) 1
Utah Code Annotated § 41-6-147 3
Utah Rules of Appellate Procedure
Rule 33 of the Rules of Appellate Procedure 2,7,8
li
STATEMENT OF JURISDICTION
The Utah Court of Appeals has jurisdiction in this case
pursuant to Utah Code Ann. §78-2a-3(2)(j).
STATEMENT OF ISSUES PRESENTED FOR REVIEW AND STANDARD OF REVIEW
1. Did the Trial Court have jurisdiction over Defendant,
an alleged member of a federally recognized Indian Tribe, for
criminal acts that occurred within the boundaries of Roosevelt
City?
2. Should the Court award costs and fees to Roosevelt
City for responding to an issue that has been squarely decided
in prior cases, and when Defendant fails to raise any argument
for reversal of the prior case authority?
STANDARD OF REVIEW
1. The Court reviews the determination of jurisdiction
on a correction of error standard, and provides no deference
to the trial court. Parkside Salt Lake Corp. v, Insure-Rite,
37 P.3d 1202 (Utah Ct. App. 2001).
2. The Court has discretion to award attorney's fees
for a frivolous appeal. Utah R. App. P. 33(b).
APPLICABLE STATUTES AND RULES
Utah R. App. P. 33.
STATEMENT OF THE CASE
This case involves the prosecution of the Defendant for a
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defective muffler under Utah Code Ann. §41-6-147 arising out
of his operation of a motor vehicle within the boundaries of
Roosevelt City on August 29, 2002. Defendant Slim filed with
the District Court a pleading styled "Request to Transfer or
Dismiss Citation" on September 12, 2002, claiming that he was
an enrolled member of the Navajo Nation of Arizona, and that
the offense occurred, within the Roosevelt City boundaries,
which in his view was within the Uintah and Ouray Indian
Reservation. Slim further alleged that federal courts were
the exclusive forum for adjudicating actions involving
misdemeanor offenses committed by Indians within reservation
boundaries. Roosevelt City opposed the Motion to Transfer
based on the prior decisions of the Utah Supreme Court, the
United States Supreme Court and the Tenth Circuit Court of
Appeals which hold that Roosevelt City is not part of the
Uintah and Ouray Reservation.
Defendant Slim, without waiting for a ruling on his
Motion to Transfer or Dismiss Citation, then filed a Motion
For Stay on October 9, 2002 asserting a stay should be entered
allowing the Court of Appeals to rule in Roosevelt City v.
Slim, No. 20020768 that involves the same issues.
The District Court ruled on the Motions on October 24,
2002. The Court denied the Motion to Transfer and the Motion
to Stay. The case was tried on December 12, 2002. The Court
determined that there was jurisdiction over Mr. Slim and found
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him guilty of the charge of defective muffler, and fined him
$47.00.
STATEMENT OF FACTS
1. The Defendant operated a vehicle on August 29, 2002
within the jurisdictional boundaries of the City of Roosevelt,
Utah. A Roosevelt City officer saw Mr. Slim's operation of
the vehicle, and concluded that the vehicle had a defective
muffler in violation that violated Utah Code Annotated § 41-6-
147.
2. Defendant alleges that he is an enrolled member of
the Navajo Nation of Arizona.
SUMMARY OF ARGUMENT
1. The Utah Supreme Court has determined in a series of
cases, which have been affirmed by the United States Supreme
Court, that Roosevelt City is not within the boundaries of the
Uintah and Ouray Indian Reservation. Under these precedents,
the Courts of the State of Utah have jurisdiction over all
defendants who commit offenses that occur within Roosevelt
City's boundaries regardless of the race or nationality of the
Defendant.
2. This appeal is frivolous in that it addresses an
issue that has been argued and decided many times. The issue
is directly on point with prior decisions of the Utah and
United States Supreme Courts. Defendant does not attempt to
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explain what factual or policy justification would allow this
Court to consider a reversal or modification of well-
established case law. Roosevelt City requests that it be
awarded its costs in filing an opposition briefing, including
reasonable attorneys fees.
ARGUMENT
POINT I
THE UTAH AND UNITED STATES SUPREME COURTS RECOGNIZE THAT ROOSEVELT CITY WAS CREATED ON HOMESTEADED LANDS, AND AS SUCH IS CLEARLY NOT INCLUDED WITHIN THE DEFINITION OF "INDIAN COUNTY."
Defendant's claim that he is not subject to the
jurisdiction of the Courts of the State of Utah has been
directly addressed, and rejected, in a series of prior
decisions of the Utah Supreme Court. In 1992, the Utah
Supreme Court in State v. Hagen, 858 P.2d 926 (Utah 1992),
State v. Coando, 858 P.2d 926 (1992) and State v. Perank, 858
P.2d 927 (Utah 1992) held that the state of Utah had
jurisdiction over the prosecution of offenses committed by
anyone, regardless of their status as members of an Indian
tribe, that occurred within the Roosevelt City boundaries.
The Court held in the cited cases that the exterior boundaries
of the reservation had been diminished by acts of the United
States Congress in 1902 and 1905, and that, with respect to
Roosevelt City, it was not included within the definition of
"Indian Country."
With respect to offenses committed within the boundaries
4
of the City of Roosevelt, the Utah Supreme Court expressly
stated that the State had jurisdiction over those offenses.
The Court stated:
For purposes of criminal jurisdiction, our decision today in State v. Perank, 858 P.2d 927 (Utah 1992), establishes that Roosevelt, Utah is not in Indian Country. In Perank, we held that 1902 and 1905 congressional acts diminished the original Uintah Indian Reservation boundaries and that subsequent homesteading and settlement therefore occurred on lands restored to the public domain. The community of Roosevelt, Utah, where defendant issued all but $70 of the checks involved in this prosecution, is therefore not in Indian country.
State v. Coando, 858 P.2d 926 (Utah 1992).
The decision in Hagenf a companion case to Coando, was
appealed to the United States Supreme Court, and affirmed by
that Court. State v. Hagen, 114 S. Ct. 958 (1994). Thus,
since 1994 the law is well settled in Utah state courts as
well as federal courts that the State has jurisdiction over
all criminal offenses that are committed within the boundaries
of Roosevelt City.
Mr. Slim's present case is at least the third time the
Utah Supreme Court or the Court of appeals has directly
addressed and rejected the position advanced. Besides Haqan,
in the case of State v. Kozlowicz, 911 P. 2d 1298 (Utah Ct.
App. 1996), this Court determined that Utah courts have
jurisdiction to prosecute native americans for conduct
occurring in Roosevelt City. Kozlowicz is indistinguishable
from the case at bar. In Kozlowicz, the Defendant was
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arrested for speeding and failure to respond to an officer's
signal, while driving through the Roosevelt City boundaries.
Defendant, who was attempting to drive to the Ute Indian
Reservation, asserted that Roosevelt officers did not have
jurisdiction over her, an Indian. In addressing and rejecting
the Defendant's jurisdictional argument, the Court held as
follows:
While the lands [where the offense was committed] are clearly within the original boundaries of the Reservation, they are included in the geographic area that the United States Supreme Court determined to no longer be Indian Country. Indeed, the Haqen court specifically mentioned Roosevelt City as being the largest city in those lands opened for non-indian settlement. [citation omitted]. Accordingly, we conclude that Ms. Kozlowicz was not in Indian country when she committed the offenses with which she is charged by the state.
Id. In this case, the decisions of the Utah Supreme Court in
Haqan, Coando, and Kozlowicz are dispositive of the issue now
before the Court.
POINT II
ROOSEVELT CITY SHOULD BE REIMBURSED FOR ITS COSTS AND THE LEGAL FEES INCURRED ON APPEAL.
Defendant Slim's appeal is frivolous. Rule 33 of the
Utah Rules of Appellate Procedure allows this Court to award
fees for frivolous appeals. The Rule reads in part as
follows:
[I]f the court determines that a motion made or appeal taken under these rules is either frivolous
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or for delay, it shall award just damages, which may include single or double costs, as defined in Rule 34, and/or reasonable attorneys fees, to the prevailing party.
Utah R. App. P. 33 (a) .
The Rule sets forth a clear definition of a frivolous
appeal as follows:
For the purpose of these rules, a frivolous appeal, motion, brief, or other paper is one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.
Utah R. App. P. 33 (b) .
Roosevelt City believes that the issue Defendant raises
in the appeal is so frivolous that sanctions should be
awarded. There are two prior cases that address the very
issue raised here, both of which are contrary to the
Defendant's position. Defendant fails to even cite either
case. Defendant has made no effort to raise any new argument.
Rather, he simply relies on worn out arguments that have been
rejected, or which are simply not relevant to the issue, and
factually not accurate. The conclusion this Court can and
should draw is that Defendant did no research or review of the
Hagen case, or any of the other cases regarding the boundaries
of the Uintah and Ouray Indian Reservation and made no effort
to explain why, or how this case could be or should be treated
differently than Hagen and its related cases.. Without an
attempt to explain why his situation is somehow
7
distinguishable from Haaen or Kozlowicz, Defendant's appeal
can only be considered frivolous. The Court should order
Defendant to pay costs and attorneys fees in defending the
appeal as a sanction, and to discourage continued abuse of the
court system. Although Defendant does not have the benefit of
counsel, and may not fully understand the implication and
application of legal authority, he should be held to the same
standard as any other litigant who occupies this Court's
docket and requires another to respond to a frivolous motion.
Indeed, to fail to sanction Defendant only encourages him, and
other similarly situated parties, to file docket clogging
appeals without fear of consequences.
Roosevelt City has briefed this issue on a number of
occasions in State and Federal courts over more than a decade.
In each instance, every court has concluded that Roosevelt
City, because it is located on homesteaded land, is not a part
of Indian Country, and the State has jurisdiction over all
crimes committed within its boundaries. Roosevelt City
requests that this Court review the prior decisions of this
Court and the Utah Supreme Court and conclude there are no new
issues raised here, and rule, once again, that persons who
commit crimes committed in Roosevelt, Utah are subject to
jurisdiction in State Court, whether they are members of the
Ute Tribe, the Navajo Tribe, or any other tribe.
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CONCLUSION
Roosevelt City requests the Court to affirra the verdict,
dismiss the appeal and award it costs and legal fees incurred
on appeal.
Dated this day of April, 2003.
McKEACHNIE, ALLRED, McCLELLAN & TROTTER, P.C. Attorneys for Plaintiff/Appellee
9
MAILING CERTIFICATE
Clark A. McClellan, attorney for Defendant/Appellee
certifies that he served the attached BRIEF OF APPELLEE upon
counsel by placing two true and correct copies thereon in an
envelop addressed to:
DAVID SLIM ATTORNEY PRO-SE P 0 BOX 1671 ROOSEVELT UT 84066
and deposited the same, sealed, with first class postage
prepaid thereon, in the United States Mail at Vernal, Utah, on
the day of April, 2003.
(X^a.- * » Clark A. McClellan
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