Navajo Council bill seeks to have judges elected

By Felicia Fonseca
Flagstaff, Arizona (AP) July 2010

Navajo lawmakers are set to take up an issue that long has been a source of controversy around the country.

Should judges be elected?

Legislation on the Tribal Council's summer session that starts Monday in Window Rock seeks to put that question before voters in November. If approved, three tribal Supreme Court justices and 17 district court judges would be elected starting in 2012.

Retired U.S. Supreme Court Justice Sandra Day O'Connor has been pushing state legislatures to end the practice of electing judges, contending partisan elections and the fundraising that comes with it damages the ability of judges to be impartial in court.

Supporters, including the sponsor of the tribal measure, say electing judges ensures they are accountable to the people. More than 30 states elect judges in some form.

“The pros and cons are both there,” said Tribal Council Delegate Thomas Walker. “And the Navajo people have never entertained this consideration until now. If this legislation goes through, then the people for the very first time would have that debate and make that decision.”

The Navajo system of seating judges is similar to that in the state of Arizona in which a panel recommends candidates to the governor and one is appointed. But in the Navajo system, that panel is the Tribal Council's Judiciary Committee. An additional step on the Navajo Nation is the entire Tribal Council's confirmation of the president's appointment.

Walker's effort to have judges elected drew immediate criticism when heard before a council committee last month. Some Navajos contend it resulted from a string of tribal Supreme Court decisions that went against the council.

The tribe's judiciary branch said electing judges ensures that only those with sufficient financial resources would seek office, regardless of their qualifications.

“The people deserve to know there is an alternative,” a statement from the branch read. “We can place the task of selecting and evaluating judges in the hands of an independent commission comprised of a cross-section of the public, rather than in the hands of the council.”

Under the measure, candidates for district judge and Supreme Court justice would have to pay a $1,500 and $1,000 filing fee, respectively, to seek a four-year term. All sitting judges and justices would have to resign or retire in January 2013 and would lose their retirement benefits.

Elected district judges would earn $80,000, Supreme Court justices $90,000 and the chief justice $100,000 a year.

Walker said the legislation was requested from among constituents who want a direct say in changes to their government. “Either way it's an exercise of democracy to let the people decide,” he said.

Other legislation on the council's agenda includes a bill to consolidate elections that are held every two years on the Navajo Nation to save money. If approved, the measure would extend the current terms of council delegates, and the president and vice president, by another two years. The council hasn't favored past attempts at doing so.

Another measure would more than double the tribe's tobacco taxes.

American Indian reservations are a popular place for tobacco users to purchase cigarettes, cigars and chewing tobacco. While federal excise taxes are assessed on tobacco products sold there, state excise taxes don't always apply and some tribes choose not to implement their own tax.

The Navajo Nation assesses a tax of 40 cents for a standard pack of cigarettes on the reservation, which is less expensive than in most states. The measure would increase that figure to $1 per pack and more than double the taxes per ounce for loose tobacco.

“This is a sin tax,” said Navajo Tax Commission executive director Martin Ashley. “We're trying not only to increase revenues but discourage tobacco use.”

The tribe's tobacco tax, which went into effect in 1995, generates the least amount of revenue among the seven taxes collected by the tribe. In fiscal year 2009, it brought in nearly $342,000 that gets funneled into the tribe's general fund.