Boos v. Yazzie

6 Navajo Rptr. 211
CourtNavajo Nation Supreme Court
DecidedSeptember 24, 1990
DocketNo. A-CV-35-90
StatusPublished

This text of 6 Navajo Rptr. 211 (Boos v. Yazzie) 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
Boos v. Yazzie, 6 Navajo Rptr. 211 (navajo 1990).

Opinion

OPINION

Opinion delivered by

AUSTIN, Associate Justice.

I

Petitioner Steven Boos initiated this original proceeding before this Court seeking to prohibit Judge Robert Yazzie, trial judge of the Window Rock District Court, from enforcing an order appointing petitioner to represent an indigent defendant accused of criminal offenses in the Navajo Nation trial court.

DNA People's Legal Services, Inc., (DNA) is a non-profit corporation which receives federal funding pursuant to the Legal Services Corporation Act, 42 U.S.C. §§ 2996 etseq. (1974). DNA uses federal funds to represent eligible indigent clients in federal and state courts and in the courts of the Navajo and Hopi Nations. Nearly all of DNA's clients in the Navajo Nation are members of the Navajo Tribe. DNA receives federal funds subject to conditions imposed by federal statutes and regulations promulgated thereunder.

Defendant Peter MacDonald Jr. is a member of the Navajo Tribe. Defendant MacDonald Jr. has been charged along with his father, Peter MacDonald Sr., of numerous criminal offenses in the Window Rock District Court of the Navajo Nation. The first group of charges making up the first case, Navajo Nation v. MacDonald, No. WR-CR-3642-3643-89, stems from allegations that the MacDonalds sought and obtained unlawful payments of money from persons [212]*212doing business with the Navajo Nation or seeking to do business with the Navajo Nation. This case was scheduled to commence trial on September 18, 1990. Since the filing of this petition, this trial has been rescheduled to start on September 26, 1990. The second group of charges making up the second case, Navajo Nation v. MacDonald, No. WR-CR-4314-4341-89, alleges certain criminal activities by the MacDonalds arising from the sale of the Big Boquillas Ranch to the Navajo Nation. This case is scheduled to commence trial on October 23, 1990. A third trial is scheduled to commence in December, 1990. That trial involves only defendant MacDonald Sr. and it involves allegations of Election Code violations.

On August 9, 1990, Judge Yazzie appointed petitioner Boos and co-counsel Lawrence Long to represent defendant MacDonald Jr. in the first two trials. These appointments were made after finding that the defendant was indigent. Mr. Long, who is not employed by DNA, has 17 years of legal experience in the Navajo courts. Mr. Long accepted his appointment without protest and is therefore not a party to this petition.

Petitioner Boos is an attorney employed by DNA at its office located near Mexican Hat, Utah. Petitioner is a member of the state bars of Arizona and Utah and has been a member of the Navajo Nation Bar Association (NNBA) since October, 1984. Aside from his appointment that is the subject of this petition, petitioner was appointed to represent a criminal defendant in a Navajo court only once during his six years of membership in the NNBA. That is also the only appointment he has received in a Navajo court during his employment with DNA. Also, while employed by DNA, petitioner was appointed once by a Utah state court to represent a defendant charged with a felony in a Utah court.

Judge Yazzie also appointed three other attorneys to represent either defendant MacDonald Jr. or his father in the three trials. Not one of the three other attorneys is employed by DNA. The first attorney is employed by the Navajo Nation, the second is employed by the Navajo Housing Authority, and the last is in private practice from off the Navajo Reservation.

Petitioner Boos previously filed with this Court a petition seeking a writ to prohibit Judge Yazzie from enforcing his appointment. Essentially, the same issue he raised in the first petition is the subject of this petition. We denied the first petition after finding that petitioner had failed to satisfy the requirements necessary for this Court to issue a writ. Honorable Boos v. Honorable Yazzie, No. A-CV-29-90 (Order filed on August 29,1990). Petitioner filed a petition for reconsideration of our August 29,1990 order which we denied by our order of September 6,1990. Petitioner filed a second petition for reconsideration which we denied by order filed on September 12,1990. On the second petition for reconsideration, petitioner presented relevant new facts and argument which he had not made in the original petition. Because the new facts came to light after we had decided the original petition, we permitted petitioner to file this present petition.

In addition, petitioner's employer, DNA People’s Legal Services, has filed a [213]*213Motion for Leave to File Brief Amicus Curiae, together with a Brief of Amicus Curiae. This motion is granted and the Brief of Amicus Curiae is included in the record. The Navajo Nation, through its Special Prosecutor, has also submitted a Response Brief to petitioner's petition and DNA's brief. The Navajo Nation's brief is also made a part of the record.

II

Two issues are presented in this petition. The first is whether petitioner's appointment to represent an indigent defendant charged with crimes in Navajo court violates 42 U.S.C. § 2996e(d) (6) and 45 C.F.R. § 1604. If there is a violation, petitioner shall be permitted to withdraw from court-appointed representation. The second is whether petitioner's appointment constitutes a taking of private property for public use without compensation in violation of 1 N.T.C. § 8 (1986).

A

The Navajo Nation concedes that petitioner and DNA have satisfied the requirements set forth in Yellowhorse v. Window Rock Dist. Ct., 5 Nav. R. 85, 87 (1986), for review of a petition for extraordinary relief. And just recently we held that a petition for a writ of prohibition is an appropriate remedy to test a trial court's ruling that an attorney cannot withdraw from a case. Navajo Nation v. MacDonald Sr., 6 Nav. R. 206 (1990). We therefore will decide on the merits the questions raised.

In addition, DNA's brief demonstrates that a decision on the issues raised by petitioner Boos will affect every other DNA attorney or advocate who has been appointed to represent an indigent defendant in a criminal case in the Navajo district courts. Attached to DNA's brief is a memorandum to all DNA attorneys and advocates, dated September 7, 1990, directing .them as follows:

(1) Decline to take any further court appointments [and] (2) Inform the courts for current court appointments you cannot work on these cases. This includes all court appointments criminal or otherwise with one exception. (Emphasis in original).

The exception is made for guardian ad litem appointments.

The September 7, 1990 memorandum followed an emergency session of the DNA Board of Directors which unanimously voted to prohibit petitioner Boos from using DNA resources and worktime to represent defendant MacDonald Jr. The Board allegedly took this action on the advice of Timothy Shea, General Counsel of Legal Services Corporation.

[214]*214B

This Court has the inherent power to regulate the practice of law within Navajo territorial jurisdiction.

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6 Navajo Rptr. 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boos-v-yazzie-navajo-1990.