NAVAJO NATION DISTRICT COURT ADULT CIVIL TRAFFIC INFRACTION PROGRAM P R O C E D U R E S

Transcription

1 1 NAVAJO NATION DISTRICT COURT ADULT CIVIL TRAFFIC INFRACTION PROGRAM P R O C E D U R E S ** These procedures are pending formal adoption by the Navajo Nation Supreme Court** Revised 3/4/09 blue Grammatical/Clarifying Edits 3/13/09 red INTRODUCTION In 2008, the Navajo Nation Council began funding judicial hearing officers to hear adult civil traffic infraction cases as authorized by 14 N.N.C. 102 (1988). With the hire of the judicial hearing officers, a new procedure for hearing civil traffic infractions has been put in place based on Navajo Nation statutory law and the Fundamental Laws of the Diné (Diné bi beenahaz áanii). A number of considerations went into the design of the new procedure. Since 2002, the Council has mandated that the values and principles of Diné bi beenahaz áanii be upheld in the interpretation of our laws and in rendering decisions and judgments. Until now, because any change in court procedure involves all manner of complex adjustments, our courts continue to rely substantially on Anglo procedural law. With the hire of judicial hearing officers, we have an opportunity to address the area of civil traffic infractions separately from formal civil procedure in our courts and ensure the procedures substantially reflect the values and principles of Diné bi beenahaz áanii. The new procedures apply only to civil traffic infractions involving drivers 18 years of age and older. Serious criminal traffic misdemeanor offenses will continue to be heard by District Court judges according to ordinary court rules. Violations by juveniles will continue to be heard in Family Court. The economic circumstances of the Navajo people and the overwhelming workload of Navajo Nation prosecutors were also considered. In 2004, 50% of the Navajo Nation public lived below the poverty line. The principle of k é in civil traffic infraction matters emphasizes not only the duties and obligations of individuals to their community, but also respect, solidarity, compassion and cooperation. Alternative punishments may be available to drivers upon proof of economic hardship. The shortage of prosecutorial resources on the Navajo Nation is only too well documented. Prosecutors are overwhelmed by the number and severity of cases and there is a need to strategize how to maximize the intent of our laws. We know that surrounding states have not required prosecutors in traffic infraction hearings for many years. Distinguished from criminal traffic misdemeanor offenses in the Navajo Nation Code, civil traffic infractions are minor regulatory violations for which the penalty may be no greater than a fine civil assessment fee. In order to free up prosecutors to work on more serious cases in the public safety interest of our people, prosecutors need not be present at Navajo Nation civil traffic infraction hearings. Any proceedings that seek to include Diné values and principles must be rooted in Diné bi beenahaz áanii principles of fundamental fairness. In civil traffic infraction hearings, individuals shall be given the opportunity to meaningfully participate, baa yáti, and speak for themselves, ák i hadoodzih. Communities will be able to speak also. The matter will be considered carefully, baa jé ahónáago, and comprehensively, ná bináhaazláo, in order that conduct will be confronted and made right, bee k éndzísdlįį. The basic beenahaz áanii, k é, will be given the

2 2 highest value and will guide conduct in the proceedings, as in life. The below Procedures apply only to civil traffic infraction proceedings in the Navajo Nation District Courts involving drivers 18 years of age and older. They may be cited as Civ. Traff. Pro. A. RIGHTS 1. You have the right to be treated respectfully and without bias or favor. 2. You have the right to challenge your ticket in an open and nonadversarial discussion forum. 3. You have the right of meaningful participation, which includes the right to defend yourself through talking things out; to bring out all the positive aspects of your relation to the community; to take personal responsibility; to apologize to yourself and others, and to make right. 4. An attorney or tribal court advocate may be present on your behalf and may speak. Community members with a substantial interest in the outcome also have the opportunity to speak on the subject being discussed at the proceedings, but may not legally represent you. 5. You have the right to a full and fair consideration of the matter(s) and for all decisions to be explained. 6. If you are a first time violator or a repeat violator who has paid in full all prior traffic fees and cannot afford to pay your traffic infraction fine(s) civil assessment fee(s) for violations other than 14 N.N.C. 547 (Infant/child passenger restraints), you have the right to request that the fine(s) fee(s) be suspended and replaced with alternative punishment that reflects the seriousness of the violation and promotes respect for the law. 7. You have the right to appeal decisions. 8. You have the right to have Diné bi beenahaz áanii applied as the primary law in the proceedings and decision making where not inconsistent with Navajo Nation statutes and regulations and where statutes and regulations are silent. B. DUTIES 1. You have the duty to comply with provisions of the Navajo Nation Motor Vehicle Code relating to civil traffic infractions at 14 N.N.C , 500, 546 and You have the duty to respond to your traffic ticket by the appearance date. 3. You have the duty to appear at your scheduled hearings. 4. You have the duty to exercise forbearance and respect in the time used and subject(s) discussed in

3 3 hearings. 5. You have the duty to submit requests and documents within time limits. 6. You have the duty to pay all admitted or adjudicated traffic infraction fees fines and/or to complete alternative punishment. C. ISSUANCE OF TICKETS 1. Who May Issue. Tickets may be issued by Navajo Nation police officers or duly deputized state law enforcement officers for infractions on roads and highways within the Navajo Nation. A ticket must contain both a written description and the statutory provision of the alleged infraction. 2. Driver Options at Time of Issuance. At the time a ticket is issued, a driver may admit responsibility, deny responsibility, or decline to admit or deny. 3. Appearance Date. The appearance date on the ticket (usually approximately 30 days) is NOT the hearing date. It is the date by which the driver and police officer must respond. 4. The following must be done on or before the appearance date: a) By the Driver If you have admitted responsibility. If you admitted responsibility when the ticket was issued, the appearance date is the date by which your fine civil assessment fee must be paid. If you cannot afford to pay, you need to ask for a hearing by the appearance date in order to be considered for alternative punishment. If you neither pay your fine civil assessment fee or request alternative punishment by the appearance date, you will be in default of payment for the full amount of the fine civil assessment fee. If you have denied responsibility or declined to either admit or deny. If you denied responsibility, or declined to admit or deny when the ticket was issued, you must contact the District Court by the appearance date to schedule a hearing. If you have not contacted the court by the appearance date, a default judgment will be issued finding you responsible for the full amount of the fine civil assessment fee. b) By the Police Officer The police officer is required to deposit the ticket with the District Court of the Navajo Nation by the appearance date. If the police officer fails to deposit the ticket by the appearance date, the matter will be dismissed. D. ALTERNATIVE PUNISHMENT

4 4 1. When Alternative Punishment May Be Granted. The principle of k é emphasizes not only the duties and obligations of individuals to their community, but also respect, solidarity, compassion and cooperation. Alternative punishments for violations other than 14 N.N.C. 547 (Infant/child passenger restraints) may be available to first time violators or repeat violators who have paid in full any prior traffic fees drivers upon proof of economic hardship or as otherwise required by Diné bi beenahaz áanii. The alternative punishments shall reflect the seriousness of the violation(s) and promote respect for the law. Examples of alternative punishment are driving safety classes, parenting classes, and child passenger safety seat program classes. 2. Requesting Alternative Punishment. If you are unable to pay all or part of a fine civil assessment fee, you must inform the Adult Traffic Infraction Program and request alternative punishment before you become obligated to pay the fine civil assessment fee based on a final Order. This means that you must make the request either at or before your hearing. Once an order is issued imposing the fine civil assessment fee, it may be too late. You may request alternative punishment when you submit a written request for a hearing on or before the appearance date on your ticket, or verbally at a hearing. 3. Repeat Violators With Unpaid Traffic Fees Ineligible. Violators of any chapter of the Navajo Nation Motor Vehicle Code who have outstanding civil assessment fees are not eligible for alternative punishments. 4. Infant/Child Passenger Restraints. First time violators of 14 N.N.C. 547 (Infant/child passenger restraints) shall have their civil assessment fee of $125 reduced to $75 after submitting proof both of having attended a two hour Children Are Precious Passengers (CAPP) course taught by a certified child passenger safety technician, and of having obtained an appropriate child restraint device. Repeat violators are not eligible for fee reduction. 5. Proof of Inability to Pay. You will be required to provide proof of inability to pay. Proof may include affidavits from Social Services, bank statements, TANF statements, unemployment stubs, and/or testimony from community members. 6. Peace Bond. The decision maker may require you to post a peace bond to guarantee that you fulfill the alternative punishment. The bond will be returned to you when the punishment is completed. 7. Reinstatement of Fine Civil Assessment Fee; Forfeit of Peace Bond. If you do not complete the alternative punishment by the time limit stated in the judgment, and further have not requested an extension for good cause, the amount of the suspended fine civil assessment fee will be reinstated. A Notice of Reinstatement of Fine Civil Assessment Fee will be issued. You must pay your original fine civil assessment fee within thirty (30) days of receiving the Notice of Reinstatement. Any peace bond amount will be forfeited and applied toward payment of the fine civil assessment fee. E. PAYMENT OF FINE CIVIL ASSESSMENT FEE 1. Range of Fines Civil Assessment Fees. Infraction fines civil assessment fees range from $37.50 to $500 according to a fee schedule.

5 5 2. When Fines Civil Assessment Fees Must Be Paid. Fines Civil assessment fees must be paid within thirty (30) days of admission of responsibility, or issuance of an Order in which you are determined to be responsible for an infraction(s). 3. Method of Payment. Payment may be by cashier s check or money order. Mail or bring your money order to the District Court whose address is on the back of your ticket. Make sure you include your case number with your payment so it can be properly applied. F. FAILURE TO PAY FINES CIVIL ASSESSMENT FEES 1. Failure to Pay Your Fines Civil Assessment Fees. If you do not pay your fine civil assessment fee within the time limits, you will be found in default of payment for the full amount of the fee. An Order to Show Cause may be issued for you to appear and explain your non payment before a district court judge in a formal proceeding that will be conducted according to court rules. The judge may find you in civil contempt. The default will be reported to the Navajo Nation Information Management Services which will negatively impact your employment and business opportunities, and eligibility for certain Navajo Nation services in accordance with applicable Navajo Nation laws and policies, including but not limited to the Navajo Business and Procurement Act, 12 N.N.C et seq. Subject to legislation applicable laws and/or tribalstate intergovernmental agreements, your default may be transferred for third party collection and your default may be reported to state motor vehicle departments and other agencies which may result in state driver license suspension. 2. Excessive Amount of Unpaid Fines Civil Assessment Fees. 2 N.N.C. 203(E) requires the Judicial Branch to uphold the values and life way embodied in Diné bi beenahaz'áanii in punishment, interpreting laws and rendering decisions and judgments. Diné bi beenahaz'áanii requires a high standard of personal accountability, bee k éndzísdlįį. When a driver owes an excessive amount of unpaid traffic fines fees, this indicates not only a lack of personal responsibility, but also a lack of respect and accountability to the community whose safety and well being are severely impacted by repeated traffic violations on Navajo Nation roads. When unpaid civil traffic infraction fines fees exceed $1,000, the driver's name will be posted in the court and may be posted in the driver's chapter and community center. G. STATEMENTS AND REQUESTS 1. Contacts with the Court. In all written or verbal contacts with the Court, be sure to note down your ticket and/or case number. You may use forms provided on the Civil Traffic Program website. 2. Written Requests. You may use forms provided on the Adult Civil Traffic Program website to write to the Court with any request. Make sure you write down your case number so that your request may be properly processed. 3. Responses to Requests shall be issued within three (3) working days of submission of any request.

6 6 4. "Submission" means the date a request or statement is received by the District Court Adult Civil Traffic Infraction Program. 5. Requests for Hearing must be submitted by the appearance date. The District Court shall issue a Notice of Hearing to the driver and police officer within fifteen (15) days of receiving a hearing request. 6. Requests for Telephonic or Video Hearing must be submitted in writing at least ten (10) days prior to the date of a scheduled hearing. Your request must contain a phone number at which you can be reached. If a request is granted, witnesses including the police officer may also appear telephonically or by video, where available. You will be notified in writing whether the request is granted or denied. 7. Requests for Continuance must be submitted in writing with the court at least five (5) days before the hearing date, unless there is an emergency justifying a later filing. 8. Requests for Alternative Punishment may be made in a written request for a hearing, or verbally at a hearing. 9. Witness Appearance Form. No subpoenas are needed. If your witnesses need a document from the court to excuse them from school or work to attend the hearing, you may fill out the Witness Appearance Form and have it signed by the Court Clerk to give to your witness s school or employer. 10. Statements. Participants and witnesses who plan to speak at the hearing may also submit written statements prior to or at the hearing, or after the hearing if permitted by the decision maker. 11. Notice of Appeal Rights. The decision maker must give you a written Notice of Appeal Rights at your hearing. H. GOOD CAUSE The Diné bi beenahaz áanii principle of fundamental fairness requires that if you or the police officer are late in meeting time limits or fail to appear at your hearing, you will be allowed to explain the reason. If there is good cause, the failure may be excused at the discretion of the decision maker. I. TRAFFIC INFRACTION HEARING 1. Jurisdiction. The proceedings explained below apply only to adult civil traffic infraction hearings involving drivers eighteen (18) years of age and older pursuant to 14 N.N.C Serious criminal traffic misdemeanor offenses will continue to be heard by District Court judges according to court rules. Violations by juveniles will continue to be heard in Family Court. 2. Infractions and Misdemeanor Offenses Resulting From A Single Traffic Stop a Single Ticket. If a driver has been charged with both infractions and misdemeanor offenses resulting from a single traffic stop, the District Court may combine and hear the infractions and misdemeanor offenses shall be combined and heard according to court rules and a prosecutor will be required. In such cases, the infractions shall be

7 7 processed for prosecution attached to, and in the same manner as, the misdemeanor offenses arising from the same stop. 3. Diné bi beenahaz áanii. Applicable Diné bi beenahaz áanii will guide the decision maker and participants in the conduct of the proceedings. 4. Informality and Open Discussion. Civil traffic infraction hearings for drivers 18 years of age and older will be informal, nonadversarial and conducted in the manner of a respectful meeting with all formalities observed at such meetings. No prosecutor will be present. Subject to any necessary guidelines for control established by the decision maker, the format shall be open discussion with all participants able to ask questions. This format requires participants to exercise mutual forbearance and respect in the time used and subject(s) discussed. 5. What May Be Discussed. The hearing will focus on the alleged infraction. If responsibility is admitted or found, the hearing will then focus on the driver s ability to pay, the positive aspects of the driver s relation to the community, personal responsibility, any apologies, and making right. 6. Who May Attend. An advocate and/or community members who wish to speak on your behalf may attend. 7. Nályééh. If there is a third party involved, e.g. collisions with livestock, nályééh may be determined at the hearing or a further hearing may be convened for this purpose. 14 N.N.C. 104 permits a judge to dismiss any pending actions based upon a civil traffic infraction citation if all parties claiming injury or damage resulting from the traffic incident acknowledge that they have received full compensation from you and are satisfied. You may request guidance from the decision maker as to how to request dismissal of the infraction case and other pending cases based upon the civil traffic infraction citation after satisfaction of nályééh. 8. Proof of Inability to Pay. In order to have a fine civil assessment fee suspended in whole or part and be given alternative punishment, you need to provide proof of inability to pay. Proof may include affidavits from Social Services, bank statements, TANF statements, unemployment stubs, and/or testimony from community members. 9. Role of Police Officer. The police officer issuing the traffic citation is a witness and may speak only when questioned. The police officer may be excused from the proceeding upon fulfilling his/her witness duties. 10. Duty of Decision maker. The decision maker shall ensure that all information is obtained relevant to a full and fair consideration of the infraction or of the driver s inability to pay. 11. Basis For the Decision. The decision maker must determine that more likely than not the driver did commit the infraction in order to determine that he/she is responsible. 12. Teaching Discussions. The decision maker as Nataanii has a duty to teach Diné values that would aid the driver in understanding the consequences of the infraction, personal responsibility, k e, and his/her valued place in the Diné community.

8 8 13. Failure of Driver to Appear. If the driver does not appear at the hearing, the hearing may proceed in the driver s absence and a default judgment may be entered. 14. Failure of Police Officer to Appear. If the police officer issuing the traffic citation witness fails to appear at the hearing without good cause, the matter shall be dismissed with prejudice and any money deposits made by the driver shall be returned to the driver. 15. Judgments, including Default Judgments, shall be issued no later than ten (10) days following a hearing and shall state a reason for the decision. Time limits for payment of fines fees and/or completion of alternative punishments shall be written clearly on the judgment, as well as the consequences of nonpayment and non completion. 16. No Right to Jury Trial. As non criminal statutory violations under 14 N.N.C. 100 that are heard in a noncourt forum based on Fundamental Law principles, adult civil traffic infractions are miscellaneous matters under 7 N.N.C. 253, which are expressly An adult civil traffic infraction proceeding is exempted from the right to a jury trial under by 7 N.N.C. 651 because it is a miscellaneous civil matter that may be heard by a non judge civil traffic hearing officer under 14 N.N.C See also, 7 N.N.C. 253(A)(3). J. APPLICABLE DINÉ BI BEENAHAZ ÁANII The below Diné bi beenahaz áanii values and principles will guide the decision maker, participants, and witnesses in the proceedings. **NOTE: This section is subject to ongoing refinement in consultation with learned elders of the community being discussed with peacemakers and will be finalized prior to adoption.** 1. Comprehensiveness Nahat'á Nahat á is part of the core circle. Nahat á may include preventive measures or planning for solutions. Ná bináhaazláo Ná bináhaazláo means providing parties with a sense of completeness or comprehensiveness. It also means fairness and doing whatever is necessary in bringing in all problems, solving a problem or coming to a comprehensive solution. Ná bináhaazláo, is achieved when community members are brought back into a state of beauty, harmony and balance, hózho. Baa jé ahónáago Baa yáti Banyazti Baanyádoti Haleebee Baa gé ahónáago means take time to do it right, with careful consideration; the matter has been talked about and concluded. Baa yáti means meaningful participation, the opportunity to speak, or talking things out. This opportunity requires mutual forbearance and respect in the time used and subject(s) discussed. The goal is to assist the process. Banyazti means it was talked about; it was discussed. Baayádiiti means it will be talked about; it will be discussed. Haleebee means given the opportunity; do it thoroughly.

9 9 Ák i hadoodzih Ák i yádoołtih Ák i hadidoodzih Nabík íyáti Na ák íyá yánílti Na ák íyáti Ídaa ná ookąąh Ák i hadoodzih means you are going to speak for yourself. Ák i yádoołtih means you are speaking for yourself now. Ák i hadidoodzih means you will speak for yourself. Nabík íyáti means to inspect talk; particularity of the discussion or talk; to discuss a certain issue. Na ák íyá yánílti means defending oneself through talking things out; a sense of forgiving discussions; to bring out all the positive aspects of one s relation to the community. Na ák íyáti means the right to defend oneself. In Navajo, it includes the right to apologize to oneself and others, and to make right and also to plead for mercy, ídaa ná ookąąh. Ídaa ná ookąąh means you speak for yourself in order to make things better for yourself and others. 2. Fairness Ná bináhaazláo Naat ááh Natahnii Yíní dílyínee Aheełt éigo Ádił ídlį Ná bináhaazláo means providing parties with a sense of completeness or comprehensiveness. It also means fairness and doing whatever is necessary in bringing in all problems, solving a problem or coming to a comprehensive solution. Laws that are fair, and that reinforce relationships, are an essential component of dispute resolution. Naat ááh means leaders, or the decisions made by the leaders according to existing laws. Our forefathers set the standards and principles which we abide by and believe in today. Natahnii or nantaagooi alaagii means to lead; specifically, to look out for. Yíní dílyínee means modestly, humbly. One may be a respected leader, but he/she is still one of the people. Respect will be given as long as one properly carries out the role. Aheełt éigo means people are treated the same. As we talk about this problem, we need to respect each other and treat each other equally. Ádił ídlį means respect for self and others. As sacred beings, one treasures oneself and others. 3. Personal Responsibility Bee K éndzísdlįį Bee K éndzísdlįį means the offender has the personal responsibility to confront the violation, acknowledge his or her conduct, and make right. The offender must face the

10 by your actions. Failure to confront the truth is corrosive and destroys the personality. The Fundamental Laws of the Diné are necessary to maintain an orderly society in the modern world, and it is the duty and responsibility of everyone living and working in Dinétah to learn these laws. There are consequences for violation of these laws. 10 Kahna adá Kahna adá means walking in your own footsteps; experiencing consequences. Bik ee kana adá / bíni dineesdlįį means the consequences will follow you when responsibility is not accepted. 4. Navajo values are established from connection with one another and with the natural world. Iiná dóó á ál į Shábik ehgo Bee yis'ah go oodááł Hózhó/ Akehi hozhoon Bíla ashdla ii K é Sa ąh Naaghéí Bik eh Sa ąh Naaghéí Bik eh Hózhoón Niidlį Iiná dóó á ál į means Diné life and culture. Shábik ehgo means the natural path of the sun. Bee yis'ah go oodááł means a room was created for you; you have capability of strength of body and mind, you only need to recognize it. Hózhó or Akehi hozhoon means taming oneself; harmony, beauty and balance in this life. Bíla ashdla ii is an affirmation. We affirm our name, nihízhi', Diné, which means the people, human, or beings with five fingers, Bíla ashdla ii. We also have a spiritual name, Diyin Nohookáá Dine é, or Holy Earth Surface People. Through our name, we affirm the human in all tribes and nations, and respect for the individual, all our relatives, and all living beings, ádił ídlį. Through respect, we affirm there is a proper place and value for all human beings. Everything is alive and everything has a name. K é is a basic beenahaz áanii. The Diné are related to all creation through K é. Through K é we are related to one another and to our ancestors. K é must be observed if we are to continue to exist as Diné. K é imposes a duty on us to instruct and guide one another. It emphasizes restorative justice, ensuring that individuals living in disharmony are brought back into right relationships and into the community to reestablish order. Sa ąh Naaghéí Bik eh means the balance of our lives with the natural path of the sun. We strive to follow the established path of life, signified by the natural path of Hózhoón Niidlį the sun, Shábik ehgo, and this is the foundation of iiná dóó á ál į, Diné life and culture. Our human journeys, Oodááł, shall be helped by our human institutions, as we follow the natural path of the sun, Shábik ehgo, in strength of body, mind, and spirit, Bee yis'ah go oodááł. Sa ąh Naaghéí Bik eh Hózhoón Niidlį means the wholistic or holy path of male and female beings. Navajo Philosophy tells us that everything we are and do as Diné People is a reflection of our Diné Origin, a reflection in which we are considered sacred people from the bottom of our feet to the top of our heads. We are all bound by the laws of nature. We have to atone to what we violate, hurt or destroy that is considered sacred in every aspect, including places, animals, birds, reptiles, amphibians and even insects.