Former justice, legal historian lists problems with electing judges

As Navajo voters go to the polls to decide whether judges and justices should be elected rather than appointed, a former member of the tribe's bench weighed in on the subject.

Former Associate Supreme Court Justice Ray Austin said this question has come up several times since the 1970s - each time the Navajo Nation Council does not like a ruling made by a district court or by the tribe's Supreme Court.

Austin, the author of a highly regarded history on the Navajo justice system, said tribal judges were appointed by the BIA from 1892 to 1950. From 1950 to 1958 they were elected and after 1958, the tribe went back to appointment.

The Navajo Nation Council in 1958 held a long debate on the matter of elected versus appointed and decided to go to with appointed for several reasons, Austin said.

Austin said he determined through his research that:

• When judges were elected, according to the council resolution, "there had been a marked breakdown of the court system to enforce orders, enforce collection of debts, protect contracts and secure basic rights."
• Some judges said people would come before their court and point out that they helped to get them elected, so they expected a favorable decision by the judge as payback.
• Then Chairman Paul Jones said "we didn't want the judges to be worried about politics" but this happened when judges were elected.
• Another study indicated that, in some cases, judges postponed making decisions on certain cases because they were afraid it would hurt their re-election efforts. No matter how they ruled, they realized that the losing side would campaign against a judge when he came up for re-election.

That's why the decision was made to go to appointed judges - "to make sure that politics and friendships and pressures did not enter into their decision," Austin said.

He said the judicial appointment system used currently by the Navajo Nation is "unique" and "a one-of-a-kind" in the United States.

"It works very well at vetting people for judge positions," he added.

The candidates are screened by the Council's Judiciary Committee and the best ones are sent to the president, who interviews three candidates and selects one, who then goes before the Council for confirmation.

Once selected, the judge goes through a two-year probationary period during which he or she receives extensive training from the National Judicial College and the National Indian Justice Center.

The judge then goes through an evaluation process, which includes public input, before receiving his or her permanent, lifetime appointment.

As a result of this, the Navajo court system has been called the "flagship" of American Indian tribal courts, said Austin, who wrote "Navajo Courts and Navajo Common Law: A Tradition of Tribal Self-Governance" (University of Minnesota Press, 2009).

The current system has also received the support of outside interests who are wary of any system in which the courts may not be free of political influence. The election of judges and justices, this reasoning goes, would send a bad message to anyone thinking about investing in a new business on the reservation.

"The appointment system has resulted in an experienced, competent and well-trained Navajo judiciary," Austin said. "An election system would result in a turnover of Navajo judges every four years. New judges will have to be continually retrained on the basics of law, case management, legal research and writing, and administration."

There is also a concern that elected judges would postpone making decisions until after elections and if they lose that would mean that the new judge would have to start all over again, thus delaying a decision for years, he said.

The courts now handle 70,000 cases a year.

"With an election system, we can expect open cases to balloon to more than 100,000 cases a year within a few years," Austin predicted.

He said states are moving away from directly electing judges because the practice turns judges, whose sole allegiance is supposed to be to a fair interpretation of the law, into politicians.

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