Bad Conduct Should Limit Tribal Immunity, High Court Told 1/14/2018

1/11/2018 Bad Conduct Should Limit Tribal Immunity, High Court Told – Law360

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Bad Conduct Should Limit Tribal Immunity, High Court Told
By Michael Phillis
Law360, New York (January 10, 2018, 9:49 PM EST) — Lewis Tein PL urged the U.S. Supreme Court
on Tuesday to hear the law firm’s bid to overturn a Florida appeals court ruling that shielded the
Miccosukee Tribe from malicious prosecution claims, arguing the case presents an opportunity
determine the breadth of tribal sovereign immunity.
The law firm said in a reply brief that its appeal was a good vehicle to determine “whether the lower
court has jurisdiction to hear claims based on the Miccosukee Tribe’s off-reservation tortious
conduct.” Contrary to the tribe’s contention in its December opposition brief, the law firm said it
wasn’t suddenly bringing up new arguments. Lewis Tein said it was advocating for the Supreme Court
to hear a case where there was a “gap” in jurisprudence.
The law firm wants the Supreme Court to overturn a decision by Florida’s Third District Court of
Appeal that found that a lower court had erred when it preserved the firm’s suit against
the Miccosukee Tribe of Indians of Florida. The law firm accused the tribe of spending five years
trying to destroy the reputations of the practice and name partners Guy Lewis and Michael Tein by
lodging meritless lawsuits accusing them of participating in a purported embezzlement and kickback
scheme with former tribal leaders.
“Petitioners have always framed their challenge to the Miccosukee Tribe’s assertion of sovereign
immunity as being based on the tribe’s intentional torts and criminal conduct that the tribe
voluntarily undertook in a nontribal venue — the Florida state and federal court systems,” the reply
said.
The lower courts were “presented with arguments going to the core applicability of the doctrine of
tribal immunity,” the reply said.
The tribe said in its opposition brief that the Supreme Court had not “left open” how tribal immunity
applies to off-reservation torts. According to the tribe, only Congress can “abrogate” sovereign
immunity, which should be applied broadly.
The Florida appellate panel found the tribe didn’t “clearly, unequivocally and unmistakably” waive its
immunity with regard to the firm’s malicious prosecution action, although three judges seemed
troubled they couldn’t provide the attorneys any relief. After Lewis Tein saw the Florida Supreme
Court deny its bid to review the question of the case, the firm asked the Supreme Court to take the
case in November.
The law firm’s reply said there are still questions about the breadth of tribal immunity in offreservation
torts. It cited as an example an Alabama Supreme Court decision that it said contrasted
with the instant case. In the Alabama case, Wilkes v. PCI Gaming Authority, the court said sovereign
immunity didn’t protect the tribe “with regard to tort claims asserted against them by nonmembers.”
The Miccosukee Tribe acted in an “egregious” manner, according to the law firm, which makes this
case especially worth the Supreme Court’s time.
“Here, the Miccosukee Tribe did not simply find itself subject to a claim of negligence as a result of a
‘one-off’ tort,” the reply said. “Rather, the tribe engaged in what one federal judge described as an
unrelenting ‘legal crusade’ against Lewis Tein.”
The feud stemmed from a wrongful death action against two tribe members over a fatal 1998 car
accident. Lewis Tein was hired to take over the tribe members’ defense in 2005, and a few years
later, the victim’s relatives secured a roughly $3.2 million judgment, which they sought to enforce
against the Miccosukee as well, even though the tribe wasn’t part of the suit, according to the
opinion.
In 2011, Bernardo Roman, the tribe’s new attorney, got involved, sending the attorney for the
victim’s family checks and check stubs purporting to show that the Miccosukee Tribe was paying
Lewis Tein for its work on the case when, in fact, the tribe had loaned the tribe members the money.
Based on that move, the family’s attorney launched what turned out to be a false claim of perjury
and fraud on the court against Guy Lewis and Michael Tein, the opinion said.
In those proceedings, Roman moved for a protective order and to quash a deposition subpoena, but
the Third District Court of Appeals held that he and the tribe had waived their sovereign immunity by
providing the checks to the family’s attorney. Ultimately, the court found for Lewis and Tein,
according to the opinion.
A tangled web of litigation followed, with the tribe repeatedly trying to go after the firm in state and
federal court with no success. In the process, the tribe was hit with sanctions multiple times,
including in January 2015, when a Florida federal court judge ordered Roman and the tribe to cough
up nearly $1 million after deeming the attorney’s behavior “egregious and abhorrent,” the opinion
said.
Representatives for the law firm and the tribe did not immediately respond to requests for comment.
The firm is represented by Curtis B. Miner and Roberto Martinez of Colson Hicks Eidson PA.
The tribe is represented by Robert O. Saunooke of Saunooke Law Firm PA and George B. Abney,
Daniel F. Diffley, Andrew J. Tuck, Eric C. Schnapp and Michael J. Barry of Alston & Bird LLP.
The case is Lewis Tein PL et al. v. Miccosukee Tribe of Indians of Florida, case number 17-702, in the
Supreme Court of the United States.
–Additional reporting by Adam Lidgett, Nathan Hale and Shayna Posses. Editing by Jill Coffey.
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