Law and Order recommends removal of Chief Justice

WINDOW ROCK

With 392 public comments in support of removing Chief Justice Herb Yazzie from the bench, the Law and Order Committee listened.

At a special meeting of the Law and Order Committee Tuesday, members supported Council delegate Leonard Tsosie’s effort to remove Yazzie for alleged “malfeasance, misfeasance, or serious neglect of duty” by a 2-0 vote.

With the approval of Tsosie’s bill, a special council session is now recommended for Yazzie’s removal. May 19 is the tentative date, Tsosie said.

“This is not in the form of a revenge, but rather, as stated out in the legislation, of why we seek his removal,” Tsosie said.

According to language in Tsosie’s bill, Yazzie committed six offenses as the chief justice. Those allegations include that Yazzie failed to take action to set up a Judicial Conduct Commission, whose purpose is to provide a forum to hear complaints against judges and justices.

In regards to disqualifying the former Navajo Election Board of Supervisors during the election saga, Tsosie said Yazzie violated their due process rights without a formal complaint and without a hearing.

The issues of legal analysis, including the lack of dissenting opinions by not having a third justice on the bench with Yazzie and Associate Justice Eleanor Shirley is another instance of misfeasance, Tsosie told committee members.

The bill cites 26 cases in which Yazzie issued two-justice opinions.

“The two-justice opinions by the Navajo Nation Supreme Court include very important matters involving laws that are crucial to the Navajo people as a whole and equally, if not more important, to the individual parties,” language in the bill states.

Allegation four accuses Yazzie of violating the separation of powers in exercising his authority over the Office of Hearings and Appeals, an executive branch office, by appointing a district judge to preside over a hearing at the Office of Hearings and Appeals.

It is also alleged that Yazzie failed to uphold Diné bi beenahaz’áanii, or Diné Fundamental Law, and other tribal laws by wrongfully interpreting these laws.

Finally, Tsosie said Yazzie violated the principle of separation of powers and due process of law. He conducted these actions when he disbarred former Chief Legislative Counsel Frank Seanez without referring the issue to the Navajo Nation Bar Association, according to Tsosie.

“Herb Yazzie, as Chief Justice, as the accuser, the trier of fact, and the decision-maker,” language in the bill states. “The Chief Legislative Counsel was denied a fair hearing.”

These reasons are were enough for two committee members – Kee Allen Begay and Otto Tso – to vote in favor of Tsosie’s bill; hence, the 2-0 vote.

Tsosie’s bill comes after Yazzie received a great deal of criticism for his involvement in the decisions to remove former presidential candidate Chris Deschene from the general election ballot, and Yazzie ignoring efforts by the council to get a referendum before the people to decide language fluency.

The decisions by the high court ultimately led to the April 21 general election, in which Navajo Nation President-elect Russell Begaye and Navajo Nation Vice President-elect Jonathan Nez won their seats for the tribe’s highest office.

From the passage of the bill, Yazzie will be notified of his allegations of wrongdoing, according to language in the bill.

Tsosie said that a similar bill would be introduced at the full council level, with the 75 or so chapter resolutions that support his bill.

Otto Tso said the committee and council made numerous requests to Yazzie to talk, especially during the election saga, but instead he sent the people that work for him to provide updates.

“Our voters have been pushing us on this and we sat on this for a while and tabled it,” Tso said, noting that he now favors the bill to remove Yazzie after those failed requests.

Tso voted in favor of the bill to recommend the full council to consider.

Edmund Yazzie, chair of the committee, didn’t vote on the matter. Fellow members Jonathan Perry and Raymond Smith were unavailable at the special meeting.

In addition to the public comments supporting the bill, there were 20 comments submitted that opposed the effort and five inconclusive comments.

One of the opponents of the bill was former Navajo Nation Associate Justice Raymond D. Austin.

In his comments, Austin praised how the Navajo court system is world renown, particularly with the U.S., states of Arizona, New Mexico and Utah and the ninth and tenth circuit of appeals courts.

“If this council were to remove a Navajo Nation judge because it does not like the judge’s interpretation and application of the law, then the council will have done severe damage to the Navajo Nation courts, the Navajo Nation government, and tribal sovereignty,” Austin said, noting that Tsosie’s bill would set a precedent.

In other words, Austin said that because Yazzie is making unpopular decisions, particularly during the election process that finally ended April 21, a judge shouldn’t be removed for those reasons.

He cited how the American people in the 2000 election claimed “voter disenfranchisement” when the U.S. Supreme Court stopped the recount of election ballots in Florida.

The American people, Austin said, argued the court handed the presidency to George W. Bush over Albert Gore, but the American nor their congressional leaders draft a bill to move the chief justices.

“A society that operates under the rule of law accepts a court’s decision for what it is, unanimous agreement or not, and abides by it,” Austin said, before adding, “A society that does not respect the rule of law is always on the cusp of mob rule.”

Austin went on to say that the there is no issue to remove a judge for misconduct, but only if such misconduct involves “commission of a crime, misuse of court funds, consistent neglect of court duties, drug or alcohol abuse, and similar misconduct.”

He added that some Navajo people would prefer the election of judges, but they’re not politicians, and that elected judges would creates more chaos.

Karen Francis, governmental relations officer for the Judicial Branch, reiterated Austin’s concerns about the bill. She noted that since the creation of the Navajo judiciary in 1958, leaders of that time recognized the need to keep politics out of the judicial system.

Then, with the Judicial Reform Act that the Navajo Nation Council passed in 1985, the tribal lawmakers stated that tribal sovereignty requires strong and independent tribal courts to enforce and apply the law.

“The current law for the Law and Order Committee includes the purpose to ‘improve the administration of justice on the Navajo Nation by ensuring a justice system that is independent from political influence…’ The laws of the Navajo Nation are to keep the judiciary as independent as possible,” Francis said.

Like Austin, Francis cited U.S. Supreme Court Justice Emeritus Sandra Day O’Connor, who spoke about an independent judiciary.

“The reason why judicial independence is so important is because there has to be a place where being right is more important than being popular; where fairness triumphs over strength. That place is the courtroom. It can only survive so long as we keep out political influences. In order to dispense the law without prejudice, judges have to be assured they are not going to be subject to retaliation by the other two branches of government with their judicial acts…” Connor famously stated.

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