Courts Outline Contents

Transcription

1 Courts Outline Topics covered: Issues of justiciability, including standing and mootness, structure of the courts and administration of the courts by the Chief Justice. For cases relating to the crime of interference with judicial proceedings, see Criminal Outline. For cases relating to all other government operations, see Government Outline. Contents I. Diné Bi Beenahaz áanii... 1 A. Use of Diné Bi Beenahaz áanii in courts Navajos know best how to provide for Navajos General descriptions of Diné Bi Beenahaz áanii Diné Bi Beenahaz áaniii makes Navajos distinct from Americans... 1 B. Proving Diné Bi Beenahaz áanii in courts Claims must be scrutinized Proof required only when custom is questioned Caution required in applying tradition Tradition need not be raised in pleadings Pre-trial conferences Sources of tradition Fundamental law arguments must not be delayed... 5 II. Traditional views of dispute resolution... 5 A. Peacemaking Process of peacemaking Importance of consensus in dispute resolution Restoring harmony... 5 B. Importance of finality in dispute resolution... 5 C. Talking things out and házhó ógó... 6 III. Justiciability... 7 A. Justiciability generally... 7 B. Role of egalitarianism in justiciability... 7 C. Ripeness... 7 D. Advisory opinions... 8

2 E. Mootness General concept Diné Bi Beenahaz áanii Court may disregard mootness for issues that will continue to arise Specific instances of mootness... 9 F. Standing General concept Diné Bi Beenahaz áanii Party must have an interest Specific instances of standing IV. Maintaining order in Court proceedings A. Importance of maintaining order Obligation and power of court Duty of counsel Importance of following rules of court Intemperate language and civility B. Gag orders C. Sanctions General rules on sanctions Due process D. Disqualification of judges Right to impartial judge Personal bias Family relationship Method of requesting disqualification Moving party cannot provoke judge Waiver E. Bench warrants F. Contempt power General concept Types of contempt... 17

3 3. Due process issues Remedies for contempt Statutory authority Inherent authority Contempt proceedings Criminal cases G. Fraud on the court V. Structure of the court A. General descriptions of Navajo courts B. Indian courts are not courts of general jurisdiction C. Regulation of courts D. Creation of the courts by the council E. Interpretation of statutes on Court structure F. Supreme Court [formerly the Court of Appeals] Supervisory responsibility Structure Administration of the Court G. Lower courts Family court District courts have no appellate power Transfer of cases to the District Court from the Advisory Committee in H. Peacemaking courts Description of peacemaking Diné Bi Beenahaz áanii Civil rights issues Judicial review of peacemaking agreement Criminal sentencing Description of Peacemakers I. Powers and responsibilities of the judiciary Judicial Code of Conduct Rule making power... 28

4 3. Judicial immunity Judicial staff may not represent parties Obligation to respect k é VI. Appointment and removal of judges A. Appointment process Application process Probationary terms Appointment to permanent status Judicial appointments are confirmed by the Council, not the President B. Judicial disqualification C. Filling of vacancies and recalling judges on an interim basis D. Removal of judges VII. Federal courts... 33

5 I. Diné Bi Beenahaz áanii A. Use of Diné Bi Beenahaz áanii in courts 1. Navajos know best how to provide for Navajos Navajos know best how to provide for Navajos. Validation of Marriage of Francisco, 6 Nav. R. 134 (Nav. Sup. Ct. 1989). Navajo oral history contains no stories of leaders or assistance coming from the outside. Validation of Marriage of Francisco, 6 Nav. R. 134 (Nav. Sup. Ct. 1989). 2. General descriptions of Diné Bi Beenahaz áanii The application of Diné bi beenahaz áanii is, of course, essential to the development and administration of modern Diné justice and it will be considered in the Judicial Branch s harmonization of Navajo Fundamental Law and the Courts rules of procedure. Begay v. Alonzo, No. SC-CV-40-08, slip op. (Nav. Sup. Ct. November 7, 2008). Dine' Bi Beenahaz áanii has application to all facets of Navajo life. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005). What is presently termed in the Navajo tribal courts as Navajo Common Law is a system of law based upon customs and traditions. These customs and traditions are grounded in the Navajo creation stories, which until recently have been passed on orally. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). Navajo customs and traditions stem from the creation story which was orally handed down. Jini (it is said) is the basis of the creation story, implying a story told formerly by others. Each Navajo individual thus has a right to develop his/her skills to repeat the story, thus the variations. The creation stories were built upon scandals and what may be called gossip today. They survived and formed the basis of Navajo teachings. Ridiculing a wrongdoer is a form of control and discipline. If you are not careful people will be saying that about you. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). Navajo common law is preferable to custom because it reflects the fact that Navajo custom and tradition is law. In re Estate of Belone, 5 Nav. R. 151 (Nav. Sup. Ct. 1987). You cannot separate native peoples from their culture and tradition. Pavenyouma v. Goldtooth, 5 Nav. R. 17 (Nav. Ct. App. 1984). Navajo Common Law consists of the customs, traditions and usages of the Navajo People. Tome v. Navajo Nation, 4 Nav. R. 159 (W.R. Dist. Ct. 1983). You cannot separate native peoples from their culture and tradition. Goldtooth v. Goldtooth, 3 Nav. R. 223 (W.R. Dist. Ct. 1982). In Navajo culture and tradition children are not just the children of the parents but they are children of the mother s clan. Goldtooth v. Goldtooth, 3 Nav. R. 223 (W.R. Dist. Ct. 1982). 3. Diné Bi Beenahaz áaniii makes Navajos distinct from Americans Navajo traditional laws and values are what make Navajos distinct from Americans. Maintaining a distinct culture is important for the purposes of maintaining Navajo identity, Navajo land, and Navajo resources. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

6 B. Proving Diné Bi Beenahaz áanii in courts 1. Claims must be scrutinized While this is a general statement, the solution lies in the courtroom. Whether parties expect tradition to be applied will come out in testimony, and the Navajo Tribal Council has very wisely provided that judges may take care of any doubts that they are using custom and tradition by requesting the advice of counselors. Because the court room is the place to make the determination, the trial judge is in the best position to apply customary law. In this case, the trial judge heard sufficient testimony on the customary law of child custody. In the Matter of the Estate of Lee, 8 Nav. R. 820 (Ship. Dist. Ct. 2004). It should be noted that the application of custom depends on a good many circumstances and all the facts of the case. In the Matter of the Estate of Lee, 8 Nav. R. 820 (Ship. Dist. Ct. 2004). Where a claim is made under the traditions or customs of the Navajo Nation, particular scrutiny must be made of those traditions. Hood v. Bordy, 6 Nav. R. 349 (Nav. Sup. Ct. 1991). The danger in using Navajo custom and tradition lies in attempting to apply customary principles without understanding their application to a given situation. Navajo custom varies from place to place throughout the Navajo Nation. Old customs and practices may be followed by the individuals in a case or not. There may be a dispute as to what the custom is and how it is to be applied; or, A tradition of the Navajo may have so fallen out of use that it cannot any longer be considered a custom. The courts should see whether a particular custom or tradition is generally accepted and applicable to the parties before the court. Hood v. Bordy, 6 Nav. R. 349 (Nav. Sup. Ct. 1991). 2. Proof required only when custom is questioned Where no question arises as to custom or usage, the court need not avail itself of experts in Navajo culture. Hood v. Bordy, 6 Nav. R. 349 (Nav. Sup. Ct. 1991). Where no question arises as to custom or usage, the court need not avail itself of experts in Navajo culture. Matter of Estate of Apachee, 4 Nav. R. 173 (W.R. Dist. Ct. 1983) It is only where there is a doubt regarding the custom or usage that the court need avail itself of experts in Navajo culture. A judge must take judicial notice of local law. Apache v. Republic Nat l Life Ins. Co., 3 Nav. R. 250 (W.R. Dist. Ct. 1982). 3. Caution required in applying tradition The danger in using Navajo custom and tradition lies in attempting to apply customary principles without understanding their application to a given situation. Navajo custom varies from place to place throughout the Navajo Nation. Old customs and practices may be followed by the individuals in a case or not. There may be a dispute as to what the custom is and how it is to be applied; or, A tradition of the Navajo may have so fallen out of use that it cannot any longer be considered a custom. The courts should see whether a particular custom or tradition is generally accepted and applicable to the parties before the court. Lente v. Notah, 3 Nav. R. 72 (Nav. Ct. App. 1982).

7 4. Tradition need not be raised in pleadings The failure to raise Dine bi beenahaz áanii in the initial pleading will not lead to exclusion of the claim. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). Where a claim relies upon Navajo custom, the custom must be alleged and the pleading must state how the custom supports the claim. Benally v. Denetclaw, 5 Nav. R. 174 (Nav. Sup. Ct. 1987). (Note: this holding is presented in strikeout mode because it was overruled by Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004)). Where a claim relies upon Navajo custom, the custom must be alleged and the pleading must state how the custom supports the claim. In re Estate of Belone, 5 Nav. R. 151 (Nav. Sup. Ct. 1987). (Note: this holding is presented in strikeout mode because it was overruled by Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004)). Local custom must be specifically pleaded. In re Estate of Belone, 5 Nav. R. 151 (Nav. Sup. Ct. 1987). (Note: this holding is presented in strikeout mode because it was overruled by Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004)). 5. Pre-trial conferences Tradition may be discovered by an informal pretrial conference with two or three experts. Counsel may attend the conference, but only to ask clarifying questions. In re Estate of Belone, 5 Nav. R. 151 (Nav. Sup. Ct. 1987). 6. Sources of tradition a) Generally Tradition may be proven by resort to judicial opinions, learned treatises, by judicial notice being taken or by expert witnesses. Hood v. Bordy, 6 Nav. R. 349 (Nav. Sup. Ct. 1991). Tradition may be proven by resort to judicial opinions, learned treatises, by judicial notice being taken or by expert witnesses. Matter of Estate of Bigthumb, 6 Nav. R. 453 (W.R. Dist. Ct. 1989). Tradition may be proven by resort to judicial opinions, learned treatises, by judicial notice being taken or by expert witnesses. Benally v. Denetclaw, 5 Nav. R. 174 (Nav. Sup. Ct. 1987). Tradition may be proven by resort to judicial opinions, learned treatises, by judicial notice being taken or by expert witnesses. In re Estate of Belone, 5 Nav. R. 151 (Nav. Sup. Ct. 1987). Tradition may be proven by resort to judicial opinions, learned treatises, by judicial notice being taken or by expert witnesses. Matter of Estate of Apachee, 4 Nav. R. 173 (W.R. Dist. Ct. 1983). b) Judicial notice Under Resolution CN-69-02, judges and justices are required to take notice of Dine bi beenahaz áanii (Navajo Common Law) in Navajo courts. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). 7 N.N.C. 204(a) requires the court to take judicial notice of Navajo traditional law. Hood v. Bordy, 6 Nav. R. 349 (Nav. Sup. Ct. 1991). Even if custom and tradition are arguably maters of factual evidence, and not simply reading the law as it is printed, it is clear that a court can take judicial notice of customs as adjudicative facts. Hood v. Bordy, 6 Nav. R. 349 (Nav. Sup. Ct. 1991).

8 If custom is generally known within the community, or if it is capable of accurate determination by resort to sources whose accuracy cannot reasonably be questioned, it is proven. Hood v. Bordy, 6 Nav. R. 349 (Nav. Sup. Ct. 1991). If judicial notice is taken of Navajo custom, the order must clearly state the custom upon which the District Court is relying. Benally v. Denetclaw, 5 Nav. R. 174 (Nav. Sup. Ct. 1987). The court must take judicial notice of Navajo traditional law. In re Estate of Belone, 5 Nav. R. 151 (Nav. Sup. Ct. 1987). If the court takes judicial notice of a particular custom as Navajo common law, it must clearly set forth in its order the custom on which it is relying, so that the basis for its decision is clear and can be reviewed by the Supreme Court. In re Estate of Belone, 5 Nav. R. 151 (Nav. Sup. Ct. 1987). 7 N.N.C. 204(a) requires the court to take judicial notice of Navajo traditional law. Matter of Estate of Apachee, 4 Nav. R. 173 (W.R. Dist. Ct. 1983). Even if custom and tradition are arguably maters of factual evidence, and not simply reading the law as it is printed, it is clear that a court can take judicial notice of customs as adjudicative facts. Matter of Estate of Apachee, 4 Nav. R. 173 (W.R. Dist. Ct. 1983). If custom is generally known within the community, or if it is capable of accurate determination by resort to sources whose accuracy cannot reasonably be questioned, it is proven. Matter of Estate of Apachee, 4 Nav. R. 173 (W.R. Dist. Ct. 1983). The court can "find" the Navajo common law through its own knowledge of it, since it is a matter of common knowledge, or through proof of it. Tome v. Navajo Nation, 4 Nav. R. 159 (W.R. Dist. Ct. 1983). c) Expert witnesses The court may request the advice of counselors familiar with customs and usages when there is any doubt about them. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002). The court must first determine the witness status as an expert, assess the relevance of his testimony, and find it will aid the court s or the jury s understanding of a given custom before relying upon the testimony. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002). The preferred procedure is to conduct an informal conference with two or three experts when there is a doubt about the existence or nature of a custom that could determine a dispute s outcome and expert testimony is used to determine the law. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002). The goal is to arrive at a consensus about a given custom using the traditional Navajo procedure of discussion in a non-adversarial setting. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002). That avoids the situation where a party tries to interpret custom to benefit his or her own interest. Expert opinions are only opinions and should not be used to usurp or unduly influence the decision of the trier of fact. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002). Tradition may be discovered by an informal pretrial conference with two or three experts. Counsel may attend the conference, but only to ask clarifying questions. Farley v. McGee, 7 Nav. R. 596 (Ship. Dist. Ct. 1999). If tradition is at issue, the trial judge must satisfy himself as to the expertise of the proffered witness. In re Estate of Belone, 5 Nav. R. 151 (Nav. Sup. Ct. 1987). As to Navajo tradition, a witness may be qualified based upon his familiarity with Navajo traditions acquired by oral education or his adherence to a traditional way of life, or though his long-term interest in deepening his knowledge of Navajo custom, or through his status within the

9 community as a person with a special knowledge of custom. In re Estate of Belone, 5 Nav. R. 151 (Nav. Sup. Ct. 1987). 7. Fundamental law arguments must not be delayed Important matters involving Navajo Fundamental Law must not be raised in a dilatory fashion. Begay v. Alonzo, No. SC-CV-40-08, slip op. (Nav. Sup. Ct. November 7, 2008) II. Traditional views of dispute resolution A. Peacemaking 1. Process of peacemaking Peacemaking is another type of non-judicial dispute resolution. However, Peacemaking, unlike arbitration, is based on Navajo principles of non-adversarial decision making that emphasize bringing the parties back into harmony. Green Tree Servicing v. Duncan, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. August 18, 2008). With full voluntary participation (t áá ałtso altso ałhíł ka iijée go) and consensus, a resolution is reached with all participants giving their sacred word (hazaad jidísingo) that they will abide by the decision. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006). 2. Importance of consensus in dispute resolution Consensus of all of the participants is critical to resolution of the dispute, concern or issue. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006). Peacemaking is premised upon participation by all those affected, including victims. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006). 3. Restoring harmony The resolution (guided by Diné bi beenahaz áani), in turn, is the basis for restoring harmony (bee hózh= náhodoodleeł). Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006). Hózh= is established if all who participated are committed to the agreement and consider it as the final agreement from which the parties can proceed to live in harmony again. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006). B. Importance of finality in dispute resolution It is a principle of the Dine to consider missed opportunities and the need for finality when a party seeks additional opportunities to challenge a decision or seek exemption from clear deadlines. Begay v. Alonzo, No. SC-CV-40-08, slip op. (Nav. Sup. Ct. November 7, 2008). There must be a limit on the number of opportunities that claimants in a probate action have to prove the existence of an alleged will. If one does not seize an available opportunity to be heard, one cannot later complain seeking more opportunities. He or she already allowed the opportunity to escape, bi[ ch i niyá, and finality must be sought because the uncertainties that go with disputes

10 must not be inordinately delayed. Begay v. Alonzo, No. SC-CV-40-08, slip op. (Nav. Sup. Ct. November 7, 2008). A party must know when the matter has come to a close and when the judgment can be enforced. Jurisdictional requirements and restrictive timelines are therefore important for the maintenance of these principles. Begay v. Alonzo, No. SC-CV-40-08, slip op. (Nav. Sup. Ct. November 7, 2008). Finality is established when all participants agree that all of the concerns or issues have been comprehensively resolved in the agreement (ná bináheezláago bee t áá łahjį ti14eezlhgo bee ałgha deet 3). Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006). It is a Navajo legal concept that once parties have had an opportunity to have their say, a decision on the matter is final, and should not be disturbed. The Court has applied this concept to recognize the doctrine of res judicata. Matter of Estate of Kindle, No. SC-CV-40-05, slip op. (Nav. Sup. Ct. May 18, 2006). Both finality and fairness are important Navajo Common Law values. Mitchell v. Davis, 8 Nav. 542 (Nav. Sup. Ct. 2004). Navajos traditionally respected the finality of a decision. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992). When all have been heard on a dispute and the decision is made, it is respected. This has been the Navajo way since before the time of the present judicial system. The Navajo people did not learn this principle from the white man. They have carried it with them through history. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992). Navajos traditionally respected the finality of a decision. Halwood v. Badonie, 6 Nav. R. 16 (Nav. Sup. Ct. 1988). When all have been heard on a dispute and the decision is made, it is respected. This has been the Navajo way since before the time of the present judicial system. The Navajo people did not learn this principle from the white man. They have carried it with them through history. Halwood v. Badonie, 6 Nav. R. 16 (Nav. Sup. Ct. 1988). C. Talking things out and házhó ógó Házhó ógó is not man-made law, but rather a fundamental tenet informing us how we must approach each other as individuals. Green Tree Servicing v. Duncan, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. August 18, 2008). Házhó ógó is an underlying principle in everyday dealings with relatives and other individuals. Green Tree Servicing v. Duncan, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. August 18, 2008). Házhó ógó applies to civil cases just as much as it applies to criminal cases. Green Tree Servicing v. Duncan, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. August 18, 2008). A dismissal of a Labor Commission action for the alleged failure to talk things out below denies an employee his or her statutory right to be heard, and therefore his or her ability to "talk things out" with his or her employer with the assistance of the Commission, the body entrusted by the Council to facilitate k e in employment disputes. Taylor v. Dilcon Community School, 8 Nav. 717 (Nav. Sup. Ct. 2005). Nályééh includes the respectful talking out of disputes. Allstate Indemnity Co. v. Blackgoat, 8 Nav. R. 627 (Nav. Sup. Ct. 2005). It is a traditional Navajo custom to talk things out, meaning that all sides try to reach an agreement through extended discussion rather than try to solve problems through the adversarial procedures of western style courts. Our courts keep this tradition alive through peacemaking procedures. In the Matter of the Guardianship of J.N.T., 8 Nav. R. 829 (Chin. Fam. Ct. 2005).

11 Juries are a part of the fundamental Navajo principle of participatory democracy where people come together to resolve issues by talking things out. Duncan v. Shiprock Dist. Ct., 8 Nav. R. 581 (Nav. Sup. Ct. 2004). Through the process of talking things out, community members in disharmony are brought back into a state of hózhó. Duncan v. Shiprock Dist. Ct., 8 Nav. R. 581 (Nav. Sup. Ct. 2004). Because the participation of the community in resolving disputes is central to Navajo tradition, restrictions on the right to jury trials shall be applied narrowly. Duncan v. Shiprock Dist. Ct., 8 Nav. R. 581 (Nav. Sup. Ct. 2004). There are procedures for arriving at nályééh that involve the respectful talking out of a dispute. The person requesting nályééh should be willing to lay out all the facts of the problem and the injury and the listener should acknowledge the request to talk out the problem and then participate in good faith. Singer v. Nez, 8 Nav. R. 122 (Nav. Sup. Ct. 2001). To avoid disruptions of relationships, Navajo common law mandates that controversies and arguments be resolved by talking things out. This process of talking things out, called hoozhoojigo, allows each member of the group to cooperate and talk about how to resolve a problem. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996). III. Justiciability A. Justiciability generally This Court limits what cases Navajo courts can hear, and has articulated such restrictions in terms of the bilagáana concept of justiciability. Perry v. Navajo Nation Labor Commission, No. SC- CV-50-05, slip op. (Nav. Sup. Ct. August 7, 2006). In its theoretical form, justiciability considers whether the dispute sought to be adjudicated can be presented in an adversarial context, in a form historically viewed as capable of judicial resolution by English/American courts. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). The Navajo judicial system mimics the American adversarial system in some ways, but it will not interpret unintended limitations on the district courts based on federal court case law or inapplicable U.S. legislation. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). B. Role of egalitarianism in justiciability One of the major differences between Western principles of adjudication and Navajo legal procedure as participatory democracy is that it is essentially egalitarian. Egalitarianism is the fundamental principle of participatory democracy. The egalitarian principle is the ability of the people as a whole to make law. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). One of the major differences between Western principles of adjudication and Navajo legal procedure as participatory democracy is that it is essentially egalitarian. Egalitarianism is the fundamental principle of participatory democracy. The egalitarian principle is the ability of the people as a whole to make law. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995). C. Ripeness Where compact was neither approved nor implemented at the time of the filing of the complaint, and the complaint was not subsequently amended, Appellants have not yet suffered an injury that authorizes the courts to intervene. Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007).

12 Their claims are not ripe for review, because there are no facts that show actual effects on Appellants' land. Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007). D. Advisory opinions Supreme Court cannot issue advisory opinions based on alleged future injuries. Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007). Based on this, we have adopted a bar on advisory opinions, stating that we not issue a decision where an issue is not before us. Bizardi v. Navajo Nation, 8 Nav. R. 593 (Nav. Sup. Ct. 2004). Court will not issue an advisory opinion on issues not necessary to the resolution of a dispute. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002). Navajo Supreme Court will not and cannot give advisory opinions. In re Nav. Bd. of Elec. Supervisors, 6 Nav. R. 302 (Nav. Sup. Ct. 1990). E. Mootness 1. General concept Where parties could not demonstrate how they were damaged, case may be moot because no actual dispute exists. Sells v. Rough Rock Community School, 8 Nav. R. 643 (Nav. Sup. Ct. 2005). Navajo courts recognize the doctrine of mootness. Bizardi v. Navajo Nation, 8 Nav. R. 593 (Nav. Sup. Ct. 2004). 2. Diné Bi Beenahaz áanii Supreme Court will not issue opinions when the parties are no longer in disharmony, because the issue is then moot. Matter of Termination of Yazzie, Nos. SC-CV and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007). Mootness is consistent with the purpose of our judicial system, to assist parties in talking things out under k'é to bring them into hozho. If there is no longer a dispute between parties, litigation does not serve that purpose, and courts and tribunals should avoid deciding theoretical legal questions by dismissing the case. Perry v. Navajo Nation Labor Commission, No. SC-CV-50-05, slip op. (Nav. Sup. Ct. August 7, 2006). The doctrine of mootness is consistent with Navajo values. Navajo courts serve the purpose of bringing people in dispute back into harmony. Through talking things out with respect under the principle of k'e, our courts assist in bringing litigants into hozho. The necessary prerequisite is disharmony. Bizardi v. Navajo Nation, 8 Nav. R. 593 (Nav. Sup. Ct. 2004). Where parties are no longer in disharmony, it is inappropriate for court to continue with case. Bizardi v. Navajo Nation, 8 Nav. R. 593 (Nav. Sup. Ct. 2004). 3. Court may disregard mootness for issues that will continue to arise Where issue will continue to arise unless it is answered, there are likely other individuals who are currently in the same situation as the parties in the action before the Court, and the parties and the Navajo Nation need guidance as to the law, the Supreme Court will issue an opinion notwithstanding possible mootness. Matter of Termination of Yazzie, Nos. SC-CV and SC- CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

13 4. Specific instances of mootness The issuance of an alternative writ by the Supreme Court created an independent dispute which was not rendered moot when the parties settled the initial dispute. Perry v. Navajo Nation Labor Commission, No. SC-CV-50-05, slip op. (Nav. Sup. Ct. August 7, 2006). Where Supreme Court had already ruled that non-navajos had standing to allege violations of the NPEA, corporate employer could not allege that NPEA violated equal protection on the grounds of mootness. Manygoats v. Atkinson Trading Co., 8 Nav. R. 321 (Nav. Sup. Ct. 2003). Where justice had been suspended by the Council, allegations against the justice for violations of the Canons of Judicial Conduct would be dismissed as moot. McCabe v. Walters, 5 Nav. R. 43 (Nav. Ct. App. 1985). Dispute over whether due process rights were violated when children were taken was moot because children had since been returned. Barber v. Barber, 5 Nav. R. 9 (Nav. Ct. App. 1984). F. Standing Standing may lie with a private citizen if he has a personal stake in the controversy. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978). 1. General concept One element of justiciability is standing, which, in federal constitutional law, allows only those who have an injury in fact to file a suit to seek relief. Perry v. Navajo Nation Labor Commission, No. SC-CV-50-05, slip op. (Nav. Sup. Ct. August 7, 2006). The Court has applied standing in several cases, but it has never adopted one test to define it. The Court instead reviews a litigant's standing based on the nature of the relief sought. Perry v. Navajo Nation Labor Commission, No. SC-CV-50-05, slip op. (Nav. Sup. Ct. August 7, 2006). Under the standing doctrine, a court conducts a fact-based analysis of the case before it and considers whether it is appropriate to make a decision in the case. Owens v. Sloan, 7 Nav. R. 215 (Nav. Sup. Ct. 1996). The question of standing cannot be allowed to deflect our courts from examining the merits of the case when the connection between the plaintiffs and the cause of action is not inconsequential. The connection here is not tenuous nor are the plaintiffs seeking to litigate matters which really do not affect any of their legitimate interests. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978). 2. Diné Bi Beenahaz áanii The Court does not blindly adopt federal notions of standing, but instead considers what standing means in the Dine context. Perry v. Navajo Nation Labor Commission, No. SC-CV-50-05, slip op. (Nav. Sup. Ct. August 7, 2006). Navajo courts recognize the doctrine of standing pursuant to their own common values of substantial justice rather than as the term is understood in federal courts. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). For Navajo courts to close their doors to legislative review based on standing, either as a matter of convenience or to avoid considering sensitive political issues, is an abrogation of Navajo judicial responsibilities and is abhorrent to Diné concepts of participatory governance and due process. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

14 It is abhorrent to the Dine Life Way to violate the right of a community member to speak or to express his or her views or to challenge an injury, whether tangible or intangible. This right is protected to such an extent that the right to speak to an issue is not limited to the real party in interest." Rather, the right belongs to the community as a whole, and any member of that community may speak. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). The non-navajo concept of governance protects one's right to speak because that right has historically been oppressed. The Diné Life Way has always accepted that right unconditionally. Therefore, we do not focus on the existence of a right to speak or express our opinions; instead, we seek to protect the exercise of what we inherently know to exist. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). Through time, our traditional form of participatory democracy has given way to non-navajo formality; this flexibility is necessary to accommodate the ever-changing face of Navajo governance and its attendant complexities. But the acceptance of formality does not circumscribe the absolute right of the Navajo citizen to complain about the manner in which he or she is governed. We have said before that participatory democracy does not come from the non-navajo, and today we aver that it also does not come from the Council. It comes from a deeper, more profound system of governance: the Navajo People's traditional communal governance. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). Whether governance occurred at a public meeting place, a windmill, someone's homestead, the final day of a traditional ceremony or at a chapter meeting, the root of that process comes from the Dine Life Way. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). Our narratives on the Dine Life Way are replete with allusions to communal or participatory governance. Nowhere in our life journey narratives is there any indication that one was denied the privilege to speak, nor shunned for asking. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). 3. Party must have an interest When reviewing standing, court must consider whether the party seeking judicial relief is a party that can seek the relief he asks for. That is, the court must ask whether this party is the proper one to raise these issues. Owens v. Sloan, 7 Nav. R. 215 (Nav. Sup. Ct. 1996). When reviewing standing, the court must be careful not to allow a litigant to assert the other party s legal rights and to rest his claim to relief on the other party's legal rights. Such third-party standing is strongly discouraged. Owens v. Sloan, 7 Nav. R. 215 (Nav. Sup. Ct. 1996). 4. Specific instances of standing a) Preventing violations of rules of legal practice Litigants and counsel have standing to prevent violations of rules of legal practice. All parties before the courts and tribunals of the Nation have an interest in preserving the integrity of our legal system. Perry v. Navajo Nation Labor Commission, No. SC-CV-50-05, slip op. (Nav. Sup. Ct. August 7, 2006). b) Public law disputes Absent specific legislative limitations, anyone may bring a public-law dispute to the Navajo Nation courts. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

15 In practice, most private suits are brought by the individual harmed by the alleged wrong, and standing to sue is therefore self-evident. It is only where the question is of a public nature that an interested community member is likely to bring suit. It is in these latter cases that standing must be more closely scrutinized to determine whether the petitioner's standing is restricted. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). Without legislative prohibition, the Supreme Court will not declare that any individual Navajo citizen lacks standing to challenge governmental conduct. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). Ordinary Navajos, as constituents, have the power to challenge illegal expenditures by the Council. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002). It is not sound practice to open the court's doors to suits by every citizen having a disagreement with policy decisions of the legislative body. Courts are not a second political arena for losing combatants to stage a re-match. However, there are occasions when a private citizen's interests rise above the policy decision represented by the expenditure and reach the level of civil rights which the legislative body is no less charged with protecting than the courts. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978). Ordinarily, private citizens lack standing to challenge validity of expenditures from public treasury. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978). Note: this holding is presented in strikeout format because the Supreme Court s ruling in Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004), casts doubt on its continued viability. c) Election disputes Dissatisfied voters lack standing to bring suit under the election code, because the law limits claims to aggrieved candidates. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). Only candidates aggrieved by election code violations have statutory standing to challenge election results. Fulton v. Redhouse, 6 Nav. R. 333 (Nav. Sup. Ct. 1991). d) Employment disputes Employer did not have standing to challenge the NPEA on equal protection grounds. Allegations suggesting violations of the civil rights of hypothetical non-navajo employees do not give rise to a case or controversy. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000). e) Sovereign immunity defenses Private individuals do not have standing to raise Sovereign Immunity defenses because that legislative act is meant to shield only public officials or government entities. Only those whom the Act seeks to shield have standing to raise the defenses within the Act. Owens v. Sloan, 7 Nav. R. 215 (Nav. Sup. Ct. 1996). f) Council delegates Members of the Council have standing to raise questions about what law governs Council proceedings. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

16 IV. Maintaining order in Court proceedings A. Importance of maintaining order 1. Obligation and power of court One of the major policies of law is that courts should discourage multiple litigation by using their inherent authority to control the progress of cases. Benalli v. First Nat. Ins. Co. of America, 7 Nav. R. 329 (Nav. Sup. Ct. 1998). The Navajo Nation justices and judges must act in ways which do not undermine public confidence in the integrity of the Navajo Nation courts. In re Excusal of Ferguson, 7 Nav. R. 320 (Nav. Sup. Ct. 1998). Judges have an ethical obligation to use their power to control proceedings and prevent inappropriate conduct in the courtroom. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992). One of the inherent powers of a court is the power to control proceedings. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992). Courts have inherent powers to govern their operations. The powers inherent in court governance are the powers that courts call upon to be able to function institutionally. That is to say, courts use them to regulate and conduct their internal affairs and to prescribe rules and conditions for the oversight of those persons who are or become actors in the activities related to the judicial process. They come into being from the necessity or courts to govern themselves. Begay v. Nav. Elec. Admin., 7 Nav. R. 139 (Nav. Sup. Ct. 1995). Among the inherent powers of courts to govern their operations is the power to impose sanctions for misconduct by attorneys and parties or for abusive litigation practices. Begay v. Nav. Elec. Admin., 7 Nav. R. 139 (Nav. Sup. Ct. 1995). 2. Duty of counsel Counsel in applying the rules set out in the NRCAP must apply them in good faith when they certify that they have served the opposing counsel properly and in a timely manner. Failure to do so is within the disciplinary boundaries of the Navajo Nation Bar Association and also within the boundary of the contempt powers of judges where there is abuse of the rules or the court system. Johnson v. Dine College, 8 Nav. R. 221 (Nav. Sup. Ct. 2002). Counsel can expect that if they are discourteous, impolite or abusive, they will be disciplined, either through a contempt citation, court disciplinary action, bar disciplinary action or counseling by the court following a trial or hearing. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992). 3. Importance of following rules of court Participants in litigation jeopardize the judicial process when they refuse to abide by its rules. Platero v. Mike, 7 Nav. R. 130 (Nav. Sup. Ct. 1995).

17 4. Intemperate language and civility Supreme Court will not tolerate inflammatory language, insults, abuses of people (including judges, counsel, parties or witnesses) or any inappropriately aggressive conduct. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992). Trials and hearings must be civil. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992). Counsel can expect that if they are discourteous, impolite or abusive, they will be disciplined, either through a contempt citation, court disciplinary action, bar disciplinary action or counseling by the court following a trial or hearing. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992). No document that is proffered to the court should contain language which is insulting, accusative or improper. In re Admission of Wilson, 4 Nav. R. 137 (Nav. Ct. App. 1983). The Court cannot allow matters to be discussed in an affidavit which are inflammatory, not relevant to the matters in the case and designed to sway the Court s favor out of sympathy. Skeet v. Skeet, 4 Nav. R. 21 (Nav. Ct. App. 1983). Intemperate language will be grounds to strike an appellate brief. Wilson v. Wilson, 3 Nav. R. 63 (Nav. Ct. App. 1982). B. Gag orders Generally information on court proceedings is open to the public, so that the Navajo people may know what its courts are doing. Johnson v. Tuba City Dist. Ct., No. SC-CV-12-07, slip op. (Nav. Sup. Ct. December 7, 2007). There is no general prohibition on parties revealing information on their cases or authorization for courts to impose such prohibition. It then appears that authority to issue a gag order is within the sound discretion of the district courts. Johnson v. Tuba City Dist. Ct., No. SC-CV-12-07, slip op. (Nav. Sup. Ct. December 7, 2007). Though the district courts have discretion to issue a gag order, the courts must carefully consider such a significant restriction on the parties, and, importantly, justify it with clear reasons. Johnson v. Tuba City Dist. Ct., No. SC-CV-12-07, slip op. (Nav. Sup. Ct. December 7, 2007). A gag order is a more significant a restriction than the sealing of case files or closing of proceedings to the public, as it not only shields certain cases from public scrutiny, but also restricts the ability of the parties to freely discuss their situation. Johnson v. Tuba City Dist. Ct., No. SC-CV-12-07, slip op. (Nav. Sup. Ct. December 7, 2007). The general policy of the Navajo Nation is that court proceedings are open to the public and information on court proceedings is public information unless statutorily restricted, and it is therefore especially important that any restriction on the parties to discuss their case with the public be justified. Johnson v. Tuba City Dist. Ct., No. SC-CV-12-07, slip op. (Nav. Sup. Ct. December 7, 2007). C. Sanctions 1. General rules on sanctions The Court has the inherent power to sanction parties and attorneys for misconduct or abusive litigation practices. Begay v. Nav. Elec. Admin., 7 Nav. R. 139 (Nav. Sup. Ct. 1995).

18 The Court may compute the time justices put into the study of the appeal, staff time and expenses to determine the actual cost to the Navajo Nation and require a party, counsel or both to pay that expense. Begay v. Nav. Elec. Admin., 7 Nav. R. 139 (Nav. Sup. Ct. 1995). The Court may also determine the reasonable costs of innocent parties on appeal. Begay v. Nav. Elec. Admin., 7 Nav. R. 139 (Nav. Sup. Ct. 1995). The assessment will be designed to reimburse the Navajo Nation and innocent parties for the time and expense caused by the appeal, and it may include monetary sanctions to punish for misconduct. Begay v. Nav. Elec. Admin., 7 Nav. R. 139 (Nav. Sup. Ct. 1995). 2. Due process The Court will provide the right of notice and an opportunity for a hearing before assessing penalties. Begay v. Nav. Elec. Admin., 7 Nav. R. 139 (Nav. Sup. Ct. 1995). D. Disqualification of judges 1. Right to impartial judge Parties have a right to a fair and impartial judge. Plummer v. Brown, 6 Nav. R. 86 (Nav. Sup. Ct. 1989). 2. Personal bias A judge must disqualify himself or herself when he or she has a personal bias through prejudice or personal knowledge. Johnson v. Tuba City Dist. Ct., No. SC-CV-12-07, slip op. (Nav. Sup. Ct. November 7, 2007). The bias or prejudice of a judge can be shown through statements of the judge indicating he or she favors or disfavors one of the parties, and therefore cannot be objective in considering the case. Bias may also be shown if the judge's treatment of one of the litigants is so egregious that the judge's ability to be fair and impartial is in question. Johnson v. Tuba City Dist. Ct., No. SC-CV , slip op. (Nav. Sup. Ct. November 7, 2007). Canon Eleven of the Judicial Code of Conduct establishes standards for the disqualification of judges. One standard states that a judge should disqualify herself if she has a personal bias through prejudice or personal knowledge. Wirtz v. Black, No. SC-CV-09-06, slip op. (Nav. Sup. Ct. August 7, 2007). Personal bias sufficient for disqualification must arise from an extra-judicial source and result in an opinion on the merits based upon some other source other than what is learned from participation in the case. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989). Judge should be disqualified if he has an interest in the case, is biased or prejudiced, or has some relationship to a party in the case. Plummer v. Brown, 6 Nav. R. 86 (Nav. Sup. Ct. 1989). Judges are disqualified as a matter of public policy if they have an interest in the matter or where the judge has a degree of relationship to the party. Toledo v. Benally, 4 Nav. R. 142 (W.R. Dist. Ct. 1983). Sufficient facts must be alleged to show prejudice or bias. Toledo v. Benally, 4 Nav. R. 142 (W.R. Dist. Ct. 1983). Bias against attorney is not enough to disqualify a judge unless the party shows, through affidavits with specific facts, that the bias is of a sufficient degree as to adversely affect the client s interest. Toledo v. Benally, 4 Nav. R. 142 (W.R. Dist. Ct. 1983).

19 Statutes on disqualification should be liberally construed to ensure justice free from bias. Matter of Estate of Peshlakai, 3 Nav. R. 180 (Ship. Dist. Ct. 1981). Sufficient factual matters must be presented by affidavit to show bias. Test is whether affidavit reveals legitimate fear party will not receive a fair trial. Matter of Estate of Peshlakai, 3 Nav. R. 180 (Ship. Dist. Ct. 1981). Bias against attorney is not enough to disqualify a judge unless the party shows, through affidavits with specific facts, that the bias is of a sufficient degree as to adversely affect the client s interest. Yazzie v. Nav. Bd. of Elec. Supervisors, 1 Nav. R. 213 (Nav. Ct. App. 1978). 3. Family relationship A judge must disqualify himself where he has a familial relationship to a party. Plummer v. Brown, 6 Nav. R. 88 (Nav. Sup. Ct. 1989). Judge should be disqualified if he has an interest in the case, is biased or prejudiced, or has some relationship to a party in the case. Plummer v. Brown, 6 Nav. R. 86 (Nav. Sup. Ct. 1989). Judges are disqualified as a matter of public policy and in the interest of impartiality where there is an interest the judge has in the matter or where the judge has a degree of relationship to a party. Matter of Estate of Peshlakai, 3 Nav. R. 180 (Ship. Dist. Ct. 1981). 4. Method of requesting disqualification Generally, a petitioner first must file a motion to disqualify the judge in the trial court before seeking disqualification from the Supreme Court. Wirtz v. Black, No. SC-CV-09-06, slip op. (Nav. Sup. Ct. August 7, 2007). In the alternative, the petitioner can submit a writ of prohibition to the Supreme Court, including facts to support the assertion that the lower court is deviating from proper judicial activity. Wirtz v. Black, No. SC-CV-09-06, slip op. (Nav. Sup. Ct. August 7, 2007). Court can disqualify judge without requiring petitioner to first file motion with trial court where trial court s conduct is sufficiently egregious. Wirtz v. Black, No. SC-CV-09-06, slip op. (Nav. Sup. Ct. August 7, 2007). Judge may be disqualified under Rule 40, Nav.R.Civ.P., but not by seeking an administrative order from Chief Justice. Excusal of Judge Ferguson, 7 Nav. R. 320 (Nav. Sup. Ct. 1998). A judge may be disqualified on the court's filing of an order disqualifying himself or on motion of a party. If a party files a motion for disqualification it must be supported by affidavit showing sufficient facts and grounds for disqualification. When a judge is disqualified, a copy of the order shall be sent by the court clerk to the Chief Justice who shall name another judge to hear the case. Excusal of Judge Ferguson, 7 Nav. R. 320 (Nav. Sup. Ct. 1998). The motion for disqualification must be filed sixty days prior to the trial date, and the district judge, not the Chief Justice, has discretion on the decision. Excusal of Judge Ferguson, 7 Nav. R. 320 (Nav. Sup. Ct. 1998). Supreme Court, en banc, can also remove a district judge from a case using 7 N.N.C This section authorizes this Court to issue any writs or orders necessary and proper to the complete exercise of its jurisdiction or to prevent or remedy any act of any Court which is beyond such Court's jurisdiction, or to cause a Court to act where such Court unlawfully fails or refuses to act within its jurisdiction. Excusal of Judge Ferguson, 7 Nav. R. 320 (Nav. Sup. Ct. 1998). In exceptional circumstances, a party may directly ask the Supreme Court to disqualify a district judge through a petition for writ of prohibition. Excusal of Judge Ferguson, 7 Nav. R. 320 (Nav. Sup. Ct. 1998).