(L-R) Unknown woman, Darrell Tso Sr. and Navajo Nation Council Speaker Johnny Naize, who used the back door of the Window Rock District Court to leave an April 8, 2014, hearing on his temporary restraining order against 12 Council delegates and one employee and drive away in a vehicle driven by Ansley Curley. Photo by Marley Shebala
I just got back from the preliminary hearing on suspended Navajo Nation Speaker Johnny Naize’s plea to the Window Rock, Ariz., District Court to halt the 12 Navajo Council and one tribal legislative employee from putting him on administrative leave, even though he has been on administrative leave since the Council voted 12 in favor, 0 opposed to put him on administrative leave on April 4, 2014. The Council’s action was based on a legal requirement for any Council delegate holding the position of speaker, which is that the delegate must be in “good standing” and Naize lost his good standing when the Navajo Nation Speaker Prosecutors filed criminal charges of conspiracy to commit bribery and bribery in December 2013 against him.
Naize, through his private attorneys from Denver, Colo., asked the tribal court for a temporary restraining order on April 7, 2014. District Court Judge Carol Perry ordered more evidence to help her make a decision on the TRO and she also ordered a hearing on April 8, 2014.
On April 8, 2014, Perry ordered a second hearing on April 16, 2014, after the parties were unable to produce all the evidence she ordered and additional legal requests had been made by both sides that included disqualification of the Navajo Department of Justice as attorneys for the 12 Council delegates and one tribal legislative staff and dismissal of the TRO petition because it was not filed properly as mandated by the Navajo Nation Sovereign Immunity Act. Naize is seeking the TRO against the 12 delegates as individuals, not elected officials of the Navajo Nation government.
The April 16, 2014, hearing was postponed to today because some of the evidence that Perry requested was still in the process of being compiled. Perry asked for an English transcript of the April 4, 2014, Council session, identification in the English transcript where Navajo language was used and the English translation; a true account of the presence and absence of individual members constituting a quorum and the identification of any changes in the membership entering or exiting the floor.
On April 18, 2014, Judge Perry issued an order for a hearing today and tomorrow, April 24 and 25, 2014. Perry stated that the hearings would each begin at 9 a.m.
Today’s hearing started about 9:15 a.m. and Naize’s attorney, Brian Lewis, who works for the law firm, Greenburg Traugig,LLP, of Denven, spoke first because it was his client who had to justify to the court that a restraining order was needed.
According to Lewis, there are only two issues involved in the court’s decision to grant a restraining order against the 12 delegates and one employee. The two issues identified by Lewis are that the Council failed to follow tribal law and the 12 “yes” votes to put Naize on paid leave was legally insufficient.
Lewis noted that the evidence, which was a tape recording of the April 4, 2014, session would clearly show that the Council was given legal advice by Navajo Nation Deputy Attorney General Dana Bobroff, which was concurred by Legislative attorney Mariana Kahn, that tribal law, specifically Title 2, didn’t provide for the Council to put Naize on paid leave.
Lewis added that the tape recordings would also show that the first time that administrative leave for Naize was discussed was when Delegate Danny Simpson brought it up on the Council on April 4, 2014. The legislation in front of the Council was for removal of Naize and when the Council amended it to paid leave for Naize, it changed the intent of the legislation, which required an entirely new legislation.
But Lewis emphasized there was so much “confusion,” which can be heard in the tape recordings.
Lewis then explained to Judge Perry that he would calling on Delegate Katherine Benally, Public Information Director Jared Touchin, Legislative Staff Assistant Hensley Curley, and Chief of Staff Jarvis Williams. As Benally, Touchin, Curley and Williams existed the court room, Navajo Justice Department attorney Henry Howe explained that since the hearing was a civil matter that it was necessary for the Naize’s witnesses to leave. Judge Perry, in her opening remarks, noted to the attorneys that the hearing was not a criminal proceeding and that it was a civil proceeding.
Howe, in his opening statements, said that Lewis had jumped into the middle of the legal process instead of acknowledging the civil process, which mandated that Lewis, as Naize’s attorney, show the Court that Naize had experienced “injury” and “irreparable harm,” especially since Naize’s legal pleas for the temporary restraining order repeatedly stated that he would experience irreparable harm and injury if he was put on paid leave. Howe said that Naize was put on administrative leave with pay, which meant he is still receiving his speaker’s salary, living in the speaker’s house, using the speaker’s SUV and continuing to be a Council delegate and represent his communities.
Howe noted that the Council used the Navajo way of debate by completely discussing all their options in positively dealing with how Naize’s criminal charges had cast a huge dark cloud over the reservation and tribal government that also seeped into other governments and the national public.
Lewis then called Touchin to the witness stand and questioned him about his tape recordings of the April 4, 2014, Council session. And when it was clear that Lewis would be using Touchin’s tape recordings as the official recording of the April 4, 2014, Council session, Howe objected. He was allowed to question Touchin who confirmed that his tape recordings were not properly considered the official tape recordings of the Council session.
Howe also noted to the Court that he was not interested in blocking the official tape recordings of the April 4, 2014, session. His intent he said was to ensure that the “official” recordings of the April 4, 2014, Council session were used in the court. He added to the Court and Lewis that he would support a brief recess for Lewis to obtain the official Council session recording. Earlier, Howe explained that a set of the official recordings were emailed and mailed to Lewis’ Denver office.
Lewis agreed to the recess and Judge Perry ordered a recess at 10 a.m. that would end at 1:30 p.m.
As Naize was leaving the court room, I asked him several time about how he was paying for his legal counsel, which is the Denver law firm of Greenburg Traurig. Naize never answered. Naize also once again took the back stairs and back doors to exit the Window Rock District Court.
I also asked Naize’s Chief of Staff Williams about how Naize was paying for his legal fees. Williams’ repeatedly answered: “I’m at home.” I also asked Williams if he was continuing to receive his pay as chief of staff. Speaker Pro Temp LoRenzo Bates appointed an interim Chief of Staff Leonard Gorman after Williams failed to report to work after the Council placed Naize on paid leave. Williams’ answer was that his fiancee gives him money. As Williams got in his vehicle, he told me to ask Lewis how Naize was paying Greenburg Traurig.
Lewis, who was talking to his co-counsel, Harriet A. McConnell, in the court house parking lot, said that Greenburg Traurig were providing Naize legal services free of charge or pro bono. McConnel added that the Denver law firm was also defending Naize against the Special Proseuctors criminal charges pro bono.
