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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

1

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

2

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

3

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

5

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

6

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.

8

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

10