August 29, 2020
A legal action has determined that the Ho-Chunk Nation Legislature must refrain from making any budgetary decisions until a hearing can be made on Monday, Aug. 31
An “Ex Parte Temporary Restraining Order and Scheduling Preliminary Injunction Hearing” has been issued by the Ho-Chunk Nation Trial Court. The hearing is scheduled for Monday, Aug. 31.
The Honorable Associate Trial Court Judge Mary Jo B. Hunter ruled on the matter.
Ho-Chunk Nation Executive Branch and Marlon WhiteEagle, in his official capacity as president of the Ho-Chunk Nation, sought the injunction against the Ho-Chunk Legislature after the Legislature passed a 60-day budget.
WhiteEagle and the Executive Branch contended, by filing for the injunction, that the Legislature exceeded its Constitutional authority by passing a line-item budget. Resolution 6-24-20B, passed by the Legislature, incorporated specific line-item budgets for each department of the Executive Branch.
In the ruling, Judge Hunter explained that the Court adopted a four-prong test for the purpose of evaluating requests for preliminary injunctions. The request from the Executive Branch and WhiteEagle met all four of those criteria.
The first prong for an injunction is the “No Adequate Remedy at Law,” meaning that money damages will not address the harm caused by the Legislature. In this case, the injunction is sought to “prevent the HCN Legislature from further interfering with the duties of the Executive Branch. Such relief is non-monetary and is only achievable through seeking an injunction as the plaintiffs are now doing. Therefore, the Court finds that the plaintiff has met the first prong,” the court document stated.
The second prong is “The threatened injury outweighs the harm of issuing an injunction.” The plaintiffs argue that the Legislature’s choice of reducing the Executive Branch’s 60-day budget with specific line items resulted in irreparable harm. Specifically, the plaintiffs allege that the line-item budget cuts led to layoffs of Executive Department staff without input of the president or other Executive Department staff, Judge Hunter stated in the document.
The plaintiffs state that this resulted in the firing of many employees within the Executive Branch and that many of those fired were members of the Ho-Chunk Nation. The result of the Legislature’s line-item budget, the plaintiffs allege, constituted a violation of the constitutionally guaranteed separation of powers.
“The plaintiffs’ allegations are extremely serious concerns that have potentially grave consequences for the Nation as the Legislature’s line-item budgets passed through continuing resolution appropriation bills could potentially have the effect of encroaching on the Executive Branch’s ability to ‘execute, administer, and enforce the laws of the Ho-Chunk Nation necessary to exercise all powers delegated by the General Council and the Legislature…’” the court document stated.
Should the Court not grant the temporary restraining order, the Executive Branch could suffer irreparable harm, Judge Hunter stated in the document.
The third prong is “There is a reasonable likelihood of success on the merits.”
The plaintiffs’ contended that the Legislature’s actions “disguise a direct encroachment of the constitutionally-mandated duties of the Executive Branch and of the President by choosing not to appropriate funds for the 2020-2021 Fiscal Year.’ The plaintiffs’ further allege that the HCN Legislature cannot demonstrate any constitutional basis for its exercise of issuing the budgets in continuing resolutions in the manner that occurred.”
Judge Hunter wrote that “the Court cannot find anything in Article V of the Ho-Chunk Nation Constitution that would allow such line-item budgeting to be passed through legislation in the manner referenced above. This implies a reasonable likelihood that the Legislature violated the Ho-Chunk Nation Constitution’s separation of powers clause under Article III § 3. Thus, the Court finds that there is a reasonable likelihood of success on the merits.
The fourth and final prong of the preliminary injunction is “Granting the injunction serves the public interest.”
“A restraining order and preliminary injunction in this matter upholds the Ho-Chunk Nation’s Constitution, the Nation’s laws, and protects employees of the Ho-Chunk Nation, many of whom are members of the Nation, from potentially unnecessary layoffs. The Ho-Chunk Nation’s Constitution clearly states that ‘No branch of government shall exercise the powers or function delegated to another branch,’” Judge Hunter wrote in her decision.
“A violation of this clause has the effect of damaging the separate-but-equal constitutional framework of the Nation. Additionally there are many people’s jobs that are stake when another branch unilaterally determines where and much money can be appropriated for type of expense incurred within each branch and department of government. Consequently, the Court finds that granting the temporary restraining order and preliminary injunction serves the public interest,” Judge Hunter stated.
Judge Hunter declared that the Court will convene a Temporary Restraining Order Hearing telephonically at 9:00 am Aug. 31, 2020, CDT.
“The defendants shall refrain from addressing any legislative budgetary matters schedule on August 31, 2020, until the Court is able to render a decision regarding the p1aintiff’s complaint, which the Court intends to do on an expedited basis,” Judge Hunter wrote.
However, the Ho-Chunk Nation Legislature met for an Emergency Legislative Meeting on Saturday, Aug. 29, and passed a 63-day budget. The court has not issued a statement on whether or not the Legislature’s action is a violation of the court order declared the prior day.
