Justices Won’t Hear Fla. Firm’s Tribal Immunity Case 1/16/2018

Justices Won’t Hear Fla. Firm’s Tribal Immunity Case

Share us on:   By Michael Phillis

Law360, New York (January 16, 2018, 2:59 PM EST) — The U.S. Supreme Court on Tuesday declined to take Lewis Tein PL’s bid to overturn a Florida appeals court ruling that the Miccosukee Tribe of Indians of Florida didn’t have to face malicious prosecution claims because of its tribal sovereign immunity, locking a win for the tribe in place.

The denial of the law firm’s petition for a writ of certiorari means that a unanimous August decision by Florida’s Third District Court of Appeal will stand. That ruling said a lower court had made a mistake when it preserved Lewis Tein’s suit accusing the Miccosukee Tribe of spending five years trying to smear the reputation of the firm and name partners Guy Lewis and Michael Tein through meritless lawsuits accusing them of participating in a purported embezzlement and kickback scheme with former tribal leaders, among other allegations.

“We are obviously very pleased with the outcome,” Robert Saunooke, the tribe’s attorney, told Law360 on Tuesday. “The Supreme Court clearly acknowledged that the lower court was correct in that the Miccosukee Tribe, like other governments, is immune from suit under the well-settled doctrine of sovereign immunity.”

A representative for the law firm did not immediately respond to a request for comment.

The law firm filed its petition with the high court in November after the Florida Supreme Court declined to hear the case. It asserted that the case was the right opportunity for the high court to address the “off-reservation reach of tribal sovereign immunity,” arguing that various courts had reached differing conclusions on the matter.

In its petition, Lewis Tein also argued the high court had voiced concerns about the reach of tribal immunity and expressly left open the question of whether it applies to tortious conduct committed against individuals who are not tribe members.

“This case presents the question whether the sovereign immunity of an Indian tribe can be stretched so far as to protect it from intentional torts, and even criminal conduct, that it inflicts on non-Indians, off reservation,” the law firm’s petition said.

The firm asserted that the Florida appeals court extended immunity beyond ordinary torts such as negligence to intentional torts such as malicious prosecution and even to criminal conduct. It also allowed the immunity to be applied to an instance when a tribe purposely abused an off-reservation, nontribal institution in the state and federal court system, according to Lewis Tein.

The tribe disagreed, saying that the doctrine of sovereign immunity had long been properly settled.

“Contrary to petitioners’ assertions, this court has not ‘left open’ whether tribal sovereign immunity applies to off-reservation torts,” the Miccosukee Tribe said in December. “Rather, this court, and lower federal and state courts, have applied tribal sovereign immunity broadly. And this court has explicitly stated that only Congress can abrogate tribal sovereign immunity.”

The now-final Florida appeals panel decision found the tribe didn’t “clearly, unequivocally and unmistakably” waive its immunity with regard to the firm’s malicious prosecution action, although the three judges seemed troubled they couldn’t provide some relief for the attorneys.

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.

The law firm filed the present case against the tribe in August 2016.

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 firm is represented by Curtis B. Miner and Roberto Martinez of Colson Hicks Eidson PA.

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 Jack Karp.