Navajo voters to decide on election of judges

By Felicia Fonseca
Flagstaff, Arizona (AP) July 2010

Navajo voters will have an additional box to check at the polls on Election Day.

Tribal lawmakers approved a bill during July that would ask voters whether they want to change judges from being appointed to being elected. If passed on Nov. 2, three tribal Supreme Court justices and 17 district court judges would be elected starting in 2012. “I’m looking forward to their discussions and debates on the subject,” the bill’s sponsor, Thomas Walker, said of voters. “I know that people appreciate decision-making given to them, especially of this magnitude. The direct participatory involvement, I think, is good.”

Supporters of the effort to elect judges say it ensures they are accountable to the people. Critics, including the tribe’s Judiciary Branch, say it damages the ability of judges to be impartial in court and ensures that only those with sufficient financial resources would seek office.

Some tribal lawmakers also raised concerns that the measure was introduced in retaliation for a string of tribal Supreme Court decisions that sided against the council.

“Even if they’re saying it’s not, it takes on that appearance,” said council Delegate Leonard Tsosie.

“Although I respect the people’s right to vote, I think we should try to give them the best solution possible,” he said. “And this particular legislation would not do that.”

Under the current system, the council’s Judiciary Committee evaluates candidates and makes a recommendation to the tribal president for appointment. The appointee then goes before the council for confirmation.

Those who make it past a probationary period serve life terms.

Tsosie, who sits on the council’s Judiciary Committee, said the tribe already struggles with a shortage of applicants for judgeships. He said he would prefer a system under which sitting judges are subject to retention elections.

Walker suggested the application process might be intimidating or had presented other barriers that weren’t apparent.

“By opening up to the nation, I think there are quite a few Navajos that have what it takes to be a judge,” he said.

If Navajos vote to elect judges, all sitting judges and justices would have to resign or retire in January 2013 and would lose their retirement benefits. Newly elected judges and justices would be subject to retention elections every four years.

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

Edison Wauneka, director of the Navajo Election Administration, said he saw no problem with placing the question on the ballot but that funding would be needed to educate Navajos about the referendum.

Tribal members have played a small part in establishing laws through referendums, which are placed on the ballot by the Tribal Council. Since 1994, five referendums have gone before voters, three of which asked whether the tribe should establish gaming.

The council ended its summer session July 21.

Lawmakers also passed a measure to more than double the tribe’s tobacco taxes. The tribe had been assessing a tax of 40 cents for a standard pack of cigarettes on the reservation, which is less expensive than in most states.

That figure goes up to $1 per pack under the new measure, and taxes per ounce for loose tobacco go up by more than double.

Arizona kicks back a portion of the excise taxes it charges on tobacco to the tribe, and the tribal measure will allow the Navajo Nation to receive a portion of the New Mexico tax as well, said council Speaker Lawrence Morgan.

The measure also allows the tribe’s tax commission to make any changes in tax amounts going forward, instead of bringing them to the council for a vote.

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, which was funneled into the tribe’s general fund.