MCN Attorney General threatens district judge

Written By: Jerrad Moore

(OKMULGEE, Okla.) A hearing was held in Grayson and Kennedy v. The Citizenship Board of the Muscogee (Creek) Nation case on June 30.

Read this story on Mvskoke Media here. 

The hearing was concerning a motion for sanctions filed by Damario Solomon-Simmons who represents Rhonda Grayson and Jeffrey Kennedy in the case. Sanctions motions are filed to identify litigation misconduct and ask a judge to impose a penalty.

Previously in a March 30 court order MCN District Court Judge Denette Mouser had found that the defendant, in this case the MCN Citizenship Board being represented by the MCN Attorney General’s office, had been “uncooperative and evasive” during the discovery phase of the case. Judge Mouser at that time sanctioned the defendant by awarding $4,728.96 in attorneys fees and costs incurred.

The court ordered the amount be paid to the plaintiff’s counsel within 30 days from March 30. The MCN Attorney General’s office failed to comply with this order, and did not make any request or appeal for additional time to comply.

Solomon-Simmons filed for additional sanctions, which was heard at the June 30 hearing.

According to the order dated July 3,

“Even then, Defendant waited nearly two full months (until just two days before the scheduled hearing) to act on or at minimum acknowledge Plaintiffs’ motion, and yet still failed to demonstrate any genuine defense of its inaction and non-compliance. It is clear to this Court that Defendant’s counsel sought to find any avenue of excuse or justification – legitimate or otherwise – for the failure to comply with the Court’s order, even asking the Court to take judicial notice of an administrative order from the Muscogee (Creek) Nation (“the Nation” or “MCN’) Supreme Court which lays out the grounds for recalling an MCN District Court judge. 

At the June 30, 2023 hearing, upon being handed the administrative order by counsel for Defendant, the Court questioned counsel in open court regarding the motive for presenting it with the order. None of Defendant’s counsel were able to articulate any rational explanation. Thus, the Court’s only inference can be that the true motive of such action was at worst a veiled threat of removal from the bench, or at best an attempt to intimidate the Court prior to its ruling on Plaintiffs’ motion and/or prior to rendering final judgment,…..The Court is shocked and thoroughly disheartened to have seen such behavior from the Nation’s top attorneys. 

While it is not for this Court to decide the ultimate discipline that may or should be handed down, the Court believes counsels’ behavior in attempting to intimidate and mislead the Court may even rise to the level of an actionable violation of professional ethics. Based upon the Court’s findings from the pleadings and the June 30, 2023 hearing, the Court finds that Defendant’s counsel unjustifiably and willfully delayed their client from complying with the Court’s Order dated March 30, 2023, and therefore Plaintiffs Motion for Sanctions is GRANTED.”

The order continues,

“In opposition to Plaintiffs’ Motion for Sanctions, Defendant moves the Court to vacate its March 30, 2023 Order awarding sanctions in the form of attorney fees and costs, or in the alternative to stay proceedings until the Court enters a final judgment in this matter. In support of its motion Defendant’s counsel exhibits a misunderstanding of the nature of sanctions, conflating sanctions with legal remedies. 

Basic understanding of civil procedure should inform Defendant’s counsel that sanctions are awarded as penalties (or “fines”) while a monetary award based upon a final judgment is known as a remedy under the law (commonly identified as or referred to as ‘damages”). Defendant’s counsel makes several arguments based upon this misunderstanding of the law, which the Court finds completely absurd. Defendant’s counsel are three attorneys from the Nation’s Office of the Attorney General, including the Attorney General herself and one former MCN District Court judge. The Court finds it beyond belief that such a misunderstanding of the law and civil procedure, by all three attorneys, is sincere.” 

The Cases’ Status Today

Judge Mouser has ordered that the MCN Citizenship Board has 21 days from July 3 to pay the $4,728.96 in attorneys fees and costs incurred from the March 30 order for sanctions or face a penalty equal to one percent of the unpaid balance each day until the full amount has been paid.

Wisner, Clint Wilson, and Jeremy Pittman were also each sanctioned separately and distinctly for contemptuous behavior and attempted intimidation of the court. They are each required to pay a fine of $500 to the MCN District Court. These fines cannot be paid from the budget of any MCN Department or funds of the Nation.

The trial for Grayson and Kennedy’s suit against the MCN Citizenship Board concluded April 4, 2023. It has been three months and no decision has been delivered.

This article contained an unavoidable conflict where a tribal attorney mentioned in the story, Clint Wilson is the brother-in-law of the reporter, Jerrad Moore. However, Moore has not had direct contact with Wilson regarding this story.