Naize suit sent to Peacemaker Court
By Alastair Lee Bitsoi
WINDOW ROCK, May 8, 2014
Council placed Naize on paid administrative leave during an April 4 special session for allegedly having conspired and bribed former and current delegates with monies from discretionary accounts. He is accused of misusing almost $37,000 in discretionary funds and faces one count of conspiracy and ten counts of bribery.
In an order issued to both parties Wednesday, Window Rock District Court Judge Carol Perry agreed with Naize's May 5 request to have the matter resolved in peacemaking, the Diné traditional method of dispute resolution.
"The court also agrees that a restoration of healthy relationships is in the best interest of our government and the people," Perry said. "The purpose of peacemaking is to promote harmony consistent with Navajo Nation statutes and Diné bi beehaz'áannii."
Perry also said that the district court will stay in the proceedings of the case until May 31 or until it receives notice from the Peacemaking Program of the outcome of the court's referral.
"The Window Rock District Court Peacemaking Program shall contact the members of the Navajo Nation Council regarding their desire to participate Hozhji naat'aah or other efforts deemed appropriate by the program," Perry added.
The court's referral to the peacemaking program comes after Perry's April 30 "Order to Submit" essentially requested clarification from the parties – plaintiff Naize vs. 12 Council members and the executive director of Legislative Services, the defendants – on the role of Naize during the council's April 4 special session, and whether or not he was permitted to vote on the bill that placed him on paid administrative leave.
It was last Friday that Perry was to make a decision on Naize's request for a preliminary injunction against the defendants, but after further evidence and testimony provided to the court during oral arguments held last week, she issued the April 30 'order to submit.'
In the order, Perry requested both parties to discuss in their briefs whether or not provisions in Title II of the Navajo Nation Code allows for Naize to cast a vote on resolution CMA-17-14, the bill placing him on paid administrative leave.
Perry provided the parties a May 5 deadline to submit their briefs.
In his briefs, Naize's legal counsel, led by Brian Lewis, of the Greenburg Traurig, LLC, argued that the original intent of the bill, referred to as Legislation No. 0069-14 or Resolution No. CMA-17-14, that put his client on paid administrative leave, changed from being a bill to remove him as Speaker.
He also stated that amendments to the bill, which changed from removing Naize as speaker to placing him on paid leave, violated the Council's Rules of Order.
"This was the reason Speaker Pro Tem Edmund Yazzie declared the document legally insufficient and out of order during the special session, based on the advice of legal counsel, Mariana Kahn," Lewis said.
During the deliberations of the April 4 special session, Naize appointed Yazzie as speaker pro tem, after which the council voted favorably of to have him act as the speaker pro tem.
"Accordingly, unlike in the case of Legislation No. 0069-14, because the amendments made during the Special Session of April 4, 2014 were unlawful and invalid, Speaker Naize could not have legally and validly voted on what came to be designated Resolution No. CMA-17-14," Lewis wrote.
As part of his briefs, Naize also wrote a letter to the court informing Perry of his desire to have the matter be settled in peacemaking.
"I, Johnny Naize, as a participant in the above-captioned case respectfully offer this letter agreeing to submit this matter to peacemaking and to make a good faith effort to talk out our differences in accordance with Navajo tradition," Naize said
Naize's letter also requests for a continuance of the proceedings to allow for sufficient time for the peacemaking process be completed.
Perry had told both parties during oral arguments they had the option to bring their matter before peacemaking, and in her April 30 'order to submit' explained she hadn't receive such a request. Thus, she requested both parties, in their briefs, to discuss whether or not Naize was allowed to vote, according to provisions in Title II.
Contrary to his arguments, Navajo Nation Attorney General Harrison Tsosie, legal counsel for the 12 Council members and one tribal employee, argued that Naize had the opportunity to vote on the bill that placed him on paid leave – not as speaker but as a council delegate.
According to the Council's Rules of Order, the only exceptions for when a speaker or speaker pro tem is allowed to vote on a matter is during the event of a tie, or when a council delegate declares he or she has a "conflict-of-interest" on the matter being considered by the legislative body.
"In the case of proposed Legislation No. 0069-14, Speaker Pro Tem Yazzie, not Plaintiff Naize, was restricted to voting only in the event of a tie," Tsosie said.
He also said, "In addition, Plaintiff Naize did not declare a conflict of interest as to proposed Legislation No. 0069-14. Therefore, Mr. Naize was not prohibited from on voting proposed Legislation No. 0069-14, which was subsequently adopted as Resolution No. CMA-17-14."
And instead of making himself available to have his voice heard, Naize joined his supporters in walking out of the council chambers before the final vote was taken on Resolution No. CMA-17-14, Tsosie wrote.
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