Acothley v. Perry

10 Am. Tribal Law 25
CourtNavajo Nation Supreme Court
DecidedMarch 1, 2011
DocketNo. SC-CV-08-11
StatusPublished
Cited by1 cases

This text of 10 Am. Tribal Law 25 (Acothley v. Perry) is published on Counsel Stack Legal Research, covering Navajo Nation Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acothley v. Perry, 10 Am. Tribal Law 25 (navajo 2011).

Opinion

OPINION AND OMNIBUS ORDER AND WRIT OF SUPERINTENDING CONTROL

On January 26, 2011, Petitioners’ Counsel David Jordan filed an application to this court to issue a Writ of Superintending Control in order to disqualify the Special Prosecutor (SP) and Window Rock District Court judges, and dismiss the above cases. The basis for the application is delay in the proceedings, ex parte contact between Respondent Judge Carol Perry and the SP Alan L. Balaran, prosecuto-rial misconduct, and the SP’s unlicensed practice of law. At the time of this application, a motion for Mr. Jordan’s disqualification as counsel to Petitioners was pending in the Window Rock District Court. On January 31, 2011, this Court issued an Alternative Writ staying all proceedings in the district court.

Briefs and responses having now been received from the parties and from the Navajo Nation Attorney General as ami-cus curiae, we have become fully aware that the logistical issues raised before the Court encompass not only the instant cases but all the Discretionary Fund Cases (see infra) filed to the Window Rock District Court between October 20-21, 2010. It is also now apparent to this Court that solutions being pursued by the trial courts will not resolve the logistical issues and actually create severe difficulties for the [29]*29prosecution and permit large-scale gaming of the justice system by defendants. Substantial delays foreseeable in all these cases present extraordinary circumstances and a risk of irreparable harm. Therefore, as the Court issues its decision on the Petition, we further issue an Omnibus Order and Writ of Superintending Control applicable to all the Discretionary Fund Cases.

I

AUTHORITY

The Supreme Court of the Navajo Nation has the authority to issue “any writs ... [njecessary and proper to the complete exercise of [our] jurisdiction.” 7 N.N.C. § 303(A) (as amended by Navajo Nation Council Resolution No. CO-72-03 (October 24, 2003))%1B. “Writs are extraordle nary remedies issued only when there is no plain, speedy and adequate remedy at law.” Johnson v. Tuba City Dist. Ct., No. SC-CV-12-07, 7 Am. Tribal Law 566, 569 (Nav.Sup.Ct. November 7, 2007). A writ is appropriate when a lower court or tribunal over which we have appellate review “abuses its discretion in such an egregious way that only immediate action by this Court will remedy the damage done to a party.” In the Matter of A.P., 8 Nav. R 671, 678, 6 Am. Tribal Law 660 (Nav.Sup.Ct.2005). Furthermore, this court may use its writ authority when the issues at stake are “of significant impact throughout the Navajo Nation.” Id. In addition, such a writ may be appropriate to ensure public confidence in the Navajo Nation government. “The government of the Navajo Nation belongs to the Navajo people. A government cannot operate effectively unless the citizenry' has confidence in its government.” Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159, 167, 3 Am. Tribal Law 508 (Nav.Sup.Ct.2001).

II

DISCUSSION

This matter concerns issues arising from the unprecedented filing of 259 criminal charges in the Window Rock District Court in a two-day period from October 20-21, 2010, all alleging that 78 delegates of the 20th and 21st Navajo Nation Council had committed theft, fraud, forgery, abuse of office, tampering with public records and conspiracy concerning millions of dollars of discretionary funds intended for the assistance of indigent members of the Navajo Nation pub-(Discretionary Fund Cases).1 Of the charged delegates, eleven were re-elected in November, 2010 and now serve as delegates on the 22nd Council.2 Petitioners are 24 of the charged delegates. These cases which concern millions of dollars of Navajo Nation public funds are of immense public concern, and rightly so. The concern is obvious in that the Navajo people need to know what becomes of their money and whether these re-elected incumbents legitimately may serve on the present Council. We perceive no difference between the due process rights of the defendants and the Navajo people to whom the government treasury belongs.

a. Delays

Mr. Jordan asserts that Petitioners’ cases should be dismissed because a witness list was not provided at arraignment pursuant to Nav. R. Cr. P. Rule 25(a) and [30]*30information listed under Rule 25(b) and (c) was also not timely provided after arraignment. Additionally, a pre-trial conference was not scheduled within twenty days of Petitioners’ jury demand pursuant to Rule 31(d). He further asserts a violation of Petitioners’ speedy trial rights, as proceedings have not advanced in these three months since charges were filed, during which time taped transcripts show that there were ex parte discussions between Judge Perry and the SP on November 8, 2010 and January 10, 2011 regarding transfer of some cases to the other district courts because Mr. Jordan asserts that these communications are highly prejudicial to Petitioners and amounted to judicial and prosecutorial misconduct requiring disqualification. Additionally, the January 10 discussion was during a motion hearing which Petitioners were provided no notice of and did not attend. Finally, he asks for the SP’s disqualification due to unauthorized practice of law pursuant to 17 N.N.C. § 377.

Firstly, no rule cited by Mr. Jordan requires mandatory dismissal upon violation of discovery and pretrial time requirements. Nav. R. Cr. P. Rule 25(a) gives the trial judge the option of accepting a list of witnesses at a later date. Rule 25(b) and (c) requires only that the information be made available pursuant to what has been described as an “open file rule.” See Navajo Nation v. Bigman, 3 Nav. R. 231 (1982). Finally, we agree with the Attorney General that Mr. Jordan has misread Rule 31(d), and the rule plainly sets no time limit within which a pre-trial conference must be held.

This Court is cognizant that we have previously set a high standard for the due process rights to trial of those accused of crimes. Unlike the bilagaana courts, which only require a showing that evidence is lost, memories are dimming, defense witnesses have disappeared, or that defense is impaired, in order to find that delays in criminal proceedings have violated civil rights under the Due Process Clause of the U.S. Constitution, see, e.g., United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), our courts have further taken into account the “anxiety” caused to a charged individual when trial is unreasonably delayed. See Navajo Nation v. Bedonie et al, 2 Nav. R. 131 (Nav.Ct.App.1979) (identifying three interests the speedy trial right was designed to protect, including incarceration, anxiety, and impairment to defense). Under our Navajo Bill of Rights, criminal defendants have a right to a speedy trial. 1 N.N.C. § 6 (2005). In determining whether the right to a speedy trial has been violated, the Court applies four factors: 1) the length of the delay, 2) the reason for the delay, 3) the defendant’s assertion of the right, and 4) the prejudice to the defendant caused by the delay. Navajo Nation v. McDonald, 7 Nav. R. 1, 11 (Nav.Sup.Ct.1992); Navajo Nation v. Bedonie, 2 Nav. R. 131, 139 (Nav.Ct.App.1979); Seaton v. Greyeyes, No. SC-CV-04-06, 6 Am. Tribal Law 737, 741 (Nav.Sup.Ct. March 28, 2006). The Court interprets these factors in light of Diñé bi beenahaz’áanii. Navajo Nation, v. Badonie,

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Bluebook (online)
10 Am. Tribal Law 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acothley-v-perry-navajo-2011.