In re the Appointment of the Tuba City District Prosecutor

1 Navajo Rptr. 168
CourtNavajo Nation Supreme Court
DecidedJuly 27, 1977
StatusPublished

This text of 1 Navajo Rptr. 168 (In re the Appointment of the Tuba City District Prosecutor) 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
In re the Appointment of the Tuba City District Prosecutor, 1 Navajo Rptr. 168 (navajo 1977).

Opinion

KIRK, Chief Justice

This matter comes on appeal from an order entered June 17, 1977, by Robert Walters, Tuba City District Judge, commanding Raymond Tso, Acting Chief Prosecutor, to assume the duties of the Tuba City District Prosecutor for thirty days for the purpose of orienting and training the newly appointed prosecutor for that district, Mr. Joe Ray, Jr.

This order was in fact the second order entered in that case. The first order, issued May 9, 1977, held Tso in contempt of court for failing to appoint a district prosecutor for over six months.

This order had also been the subject of an appeal, which was dismissed as moot in view of the District Judge's decision of June 17 vacating that order at a hearing held pursuant to Rule 5(d) of the [169]*169Rules of Appellate Procedure.

Upon vacating that order, the order presently appealed from was entered, pursuant to Judge Walters' interpretation of Title 7, Section 30S of the Navajo Tribal Code.

That section reads, in part as follows:

The judge may appoint a member of the Tribe as prosecutor. 7 N.T.C. § 306.

There is no legislative record of any discussion of this part of the Code.

The order required Tso to be in Tuba City, Arizona, five days a week from 8:00 A.IV!. to 5:00 P.M., from June 20, 1977 to July 20, 1977, for the purposes of training Mr. Joe Ray, Jr., and of assisting him in the actual prosecution of cases.

Apparently, negotiations were held in the judge's chambers concerning the nature of this order. Lawrence Ruzow, counsel for the Acting Chief Prosecutor, and Tso himself evidently did not anticipate a new order being entered on June 17th.

The situation was evidently exacerbated by Tso's having spent two weeks avoiding a bench warrant commanding his arrest for failure to comply with the first order. The bench warrant was withdrawn at the June 17th hearing.

[170]*170When the second order was entered and the motion for reconsideration denied, the decision was immediately appealed and a stay of execution requested on June 21, 1977.

The stay was denied on the grounds that there was no injury to appellant in complying with the order pending appeal.

Meanwhile, appellant here had filed suit in the federal District Court for the District of Arizona, naming Robert Walters as defendant and raising substantially the same issues as are raised by this appeal.

This obvious attempt to intimidate the Navajo Courts was an example of the irresponsibility of counsel for the appellant. A further example was provided in the oral argument when Ruzow argued that the judge's order was the result of manipulations by certain Judicial staff.

The real issues in this case can be summarized as follows:

1. Does the order of June 17, 1977, constitute "peonage" as that term is used at 18 U.S.C. § 1581?
2. Does the order of June 17, 1977, constitute "involuntary servitude" as that term is used in the Thirteen Amendment to the U.S. Constitution and at 18 U.S.C. § 1584?
3. Did any extra-judicial statements made by Judge Walters about this case constitute a deprivation of the due process guaranteed by 25 U.S.C. § 1302(8) and the Navajo Bill of Rights, 1 N.T.C. § 8?
4. Was the order of June 17, 1977, properly grounded in 7 N.T.C. § 306?
5. Was the order of June 17, 1977, actually one In the nature of mandamus and, if so, is the writ of mandamus barred to Navajo District Courts by Rule 16 of the [171]*171Rules of the Court of Appeals?

The first issue can. be disposed of summarily. Counsel for appellant admitted at the hearing that the "peonage" argument was an ignorant one. “Peonage" refers to imprisonment for debt or forced labor in repayment of debt. Pierce v. United States, 14 F.2d 84 (5th Cir., 1944). The facts here clearly exclude this claim. The argument having been raised at all illustrates the dangers of preparing briefs based on headnote research rather than on reading the cases.

The second argument is almost equally silly. "Involuntary servitude" has never been held by any court we know of to include a court order requiring an irresponsible public official to do his duty. In fact, cases have held the various forms of apparent involuntary servitude are not such within the meaning of the Thirteenth Amendment to the United States Constitution.

For example, State v. Rush, 46 N. J. 399, 217 A.2d 441 (1966), holds that assignment of counsel without compensation to represent indigent defendants does not constitute involuntary servitude or peonage.

Delorme v. International Bartenders' Union, 18 Wash.2d 444, 139 P.2d 619 (1943), stands for the proposition that a court may require a person subject to its jurisdiction to perform his duty [as the court sees it] without violating the Thirteenth Amendment.

[172]*172The Selective Service Act has been held not be "involuntary servitude" prohibited by the Thirteenth Amendment. Selective Draft Law Cases, 245 U.S. 366 (1918).

Of course, there have been numerous cases alleging that various civil rights acts impose involuntary servitude on those seeking to discriminate. This form of "servitude" has not been held unconstitutional. Neither has the servitude imposed by "back-to-work" court orders in labor-relations cases been held to violate the Constitutional prohibition.

It is, therefore, clear that compulsory public service even uncompensated does not violate the Thirteen Amendment. In this case, the public service required of Tso was that for which he was already being paid, if one assumes that a duty of any supervisor is to train his subordinates to propely carry out the jobs for which he has hired them. We do not feel this to be an unwarranted assumption. Whether the training was carried out in Window Rock or Tuba City does not seem to be the controlling factor, so long as the choice is reasonably related to the underlying purpose.

We simply can not understand the argument that "involuntary servitude" exists in spite of the public purpose served, in spite of the relationship of the required service to the appellant's established duties (examined in the light of common sense), and in spite of the fact that appellant was compensated both for his services and for his expenses during the limited life of this order.

[173]*173The third issue presents a case of over-reaching argument. No one would argue that statements in the nature of those referred to in Berger v. United States, 255 U.S. 22

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Related

Selective Draft Law Cases
245 U.S. 366 (Supreme Court, 1918)
Berger v. United States
255 U.S. 22 (Supreme Court, 1921)
Scheib v. United States
14 F.2d 75 (Seventh Circuit, 1926)
State v. Rush
217 A.2d 441 (Supreme Court of New Jersey, 1966)
Delorme v. International Bartenders' Union, Local 624
139 P.2d 619 (Washington Supreme Court, 1943)

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1 Navajo Rptr. 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-appointment-of-the-tuba-city-district-prosecutor-navajo-1977.