High court in Council's crosshairs
Both associate justices out, Council taking aim at chief justice
By Marley Shebala
WINDOW ROCK, Oct. 14, 2010
Legislation to amend the rules for the Council's Judiciary Committee governing removal of Supreme Court justices and district court judges is targeting Chief Justice Herb Yazzie, according to a "confidential" memo on the bill.
On Wednesday, the Judiciary Committee voted against the permanent appointment of Associate Justice Louise Grant, although she had resigned Oct. 8 and did not attend the hearing.
A day earlier, the committee voted against permanent appointment of Associate Justice Eleanor Shirley, despite a hearing in which no negative comments or information about her were presented.
According to Navajo law, the president cannot reappoint people to the bench once the Judiciary Committee has voted not to confirm them in a permanent appointment.
Leonard Tsosie (Pueblo Pintado/Torreon/Whitehorse Lake), the only lawyer on the Judiciary Committee, said Tuesday that the committee's 4-3 vote against Justice Shirley was "revenge" for the Supreme Court's ruling in favor of President Joe Shirley Jr. (no relation) and against the Council's position in recent cases.
"The evidence before us didn't support voting against Justice Shirley," said Tsosie, one of three committee members who voted to confirm her. "In fact, it was unanimously satisfactory."
On Wednesday, committee Chairman Kee Allen Begay (May Farms/Round Rock) denied Tsosie's claim.
"The actions of the committee are not to retaliate against the Supreme Court like honorable Leonard Tsosie claims. The committee acted in the best interest of the Navajo people by upholding trust and being an accountable government," Begay said. "Honorable Tsosie has a history of instigating arguments if a decision does not benefit his values, belief systems or himself."
In May, the Supreme Court upheld the lower court's dismissal of voter Tim Nelson's complaint seeking to overturn a Dec. 15 election that reduced the 88-member Council to 24.
The high court also ordered the Navajo Election Administration to immediately conduct an election for 24 delegates and not 88, derailing efforts by current Council leaders to postpone the downsizing for four years.
The justices also upheld the lower court decision that the Council illegally placed President Joe Shirley Jr. on leave pending a special prosecutor's investigation of two business deals that cost the tribe millions.
The high court's ruling is now being recognized as a landmark decision that addresses the role of Diné Fundamental Law, the encroachment of the Council into the judicial branch, the balance of power between the executive and legislative branches, and the primary role of the Navajo people in shaping their government.
According to Sept. 13, 2010, memo labeled "confidential" and addressed to Chief Legislative Counsel Frank Seanez from Delegate Lorenzo Curley (Houck/Lupton/Nahata Dziil), proposed legislation to amend the Judiciary Committee's hearing rules is intended "to remove the Navajo Nation Chief Justice."
The subject of Curley's memo is "Legislation for Removal of Chief Justice Herb Yazzie." Curley, one of two lawyers in the Council, was the original sponsor of the legislation but informed Seanez that he had turned it over to Delegate Raymond Joe (Blue Gap/Tachee/Whippoorwill).
The chief justice said Wednesday that he learned about the bill when it went before the Judiciary Committee last week. The committee took no action because Joe did not appear to present it.
Asked if he knew about Curley's Sept. 13 memo to Seanez, Yazzie responded, "No comment."
Begay, meanwhile, said the Judiciary Committee was unaware of legislation to change its rules and remove Chief Justice Yazzie. Neither Curley nor Joe are members of the committee.
"I cannot comment on what others are doing," Begay said. "The bottom line is the committee is following procedures of what is in the code and policy."
Chief Justice Yazzie said he asked the Judiciary Committee on Wednesday to cancel Grant's probationary hearing because "she was not seeking permanent appointment."
Committee member Harold Wauneka (Fort Defiance) said Tuesday that the committee proceeded with Grant's hearing because she had initially notified them that she was resigning Oct. 30.
Wauneka, who supported Justice Shirley's confirmation, said that her strongest attribute was that she spoke Navajo, which is lacking among some of the judges.
Yazzie said Grant decided to resign and take advantage of her retirement.
Begay said the committee delivered an "unsatisfactory rating" for Grant because the chief justice did not provide written copies of evaluations for her.
"The only thing that was brought to the committee was the quarterly evaluation," Begay said. "The legislative process for recommending a judge or justice consists of a two-year probationary evaluation, which the committee failed to receive.
"The Judiciary Committee did not make any official comments on the retirement of probationary Associate Justice Louise Grant," he added, noting that the committee has no jurisdiction over retirement.
Begay said the committee voted against Justice Shirley's appointment as a result of various factors.
He said the committee identified Shirley's "dependency" on Yazzie, lack of dissenting opinions authored by her, her "inadequate preparation," and the failure of the Navajo Nation Bar Association to provide sufficient information regarding the evaluation of judges.
The committee plans to meet Oct. 28 to remove Justice Shirley, according to Alastair Bitsoi, a public information officer with the legislative branch.