JUDICIAL BRANCH OF THE NAVAJO NATION

PERSONNEL RULES FOR JUDGES & JUSTICES

Adopted by the Judicial Conference by Resolution on December 19, 2002;
Approved and Adopted by Judiciary Committee Resolution JCJA-02-03 on January 7, 2003

TABLE OF CONTENTS

Judiciary Committee Resolution JCJA-02-03, January 7, 2003

I.

AUTHORITY, SCOPE AND PURPOSE

II.

APPOINTMENT AND SEVERANCE

III.

ASSIGNMENT OF JUDGES

IV.

MANAGEMENT DUTIES AND RESPONSIBILITIES OF NAVAJO NATION JUDGES

V.

USE OF PUBLIC PROPERTY

VI.

SEXUAL HARASSMENT

VII.

HOURS OF WORK

VIII.

LEAVE

IX.

TRAINING

X.

JUDICIAL PERFORMANCE EVALUATIONS

XI.

COMPLAINTS AND GRIEVANCE PROCESS

 

I. AUTHORITY, SCOPE AND PURPOSE

These Personnel Policies for Navajo Nation Judges and Justices are promulgated pursuant to the Chief Justice's administrative and supervisory authority under 7 N.N.C. 371 (1995), upon recommendation of the Navajo Nation Judicial Conference. These policies shall become effective upon approval by the Judiciary Committee of the Navajo Nation Council pursuant to 2 N.N.C. 574(L) (2001). The policies are intended to govern the conduct of judges and to be binding upon them. No Judicial Branch policy or statements shall be approved that are inconsistent with these policies.

The purpose of these policies is to ensure that all judges and justices have the same rights and general conditions of employment with respect to each other and all other Judicial Branch employees. These policies are designed to assist the judges and justices of the Navajo Nation in performing their duties and responsibilities by providing information on personnel policy statements and rules for dealing consistently with human resource issues. These policies apply to all probationary and permanent judges and justices upon appointment by the Navajo Nation President and confirmation by the Navajo Nation Council. Whenever the term "judge" or "judges" is used hereafter in this document, it shall refer to both judges and justices. These policies do not create an employment contract by implication, and the rights and privileges granted judges and justices are only those specifically stated.

Because the Judicial Branch is committed to continually improving and refining its personnel administration system, these policies may be amended from time to time by the Chief Justice upon recommendation of the Navajo Nation Judicial Conference, and upon review and approval of such amendments by the Judiciary Committee.

Intrinsic to all sections of these policies are the precepts that judges and justices, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judges and justices are arbiters of fact and law for the resolution of disputes, and highly visible symbols of the Navajo Nation government. These policies are intended not only to provide uniform and consistent employment standards for the judges and justices, but also to afford effective and fair treatment for all employees and personnel, and all persons coming into contact with the Courts.

These policies are to be applied and construed consistent with Navajo law, which shall include the Navajo Nation Code, the Navajo Nation Code of Judicial Conduct as approved by the Judiciary Committee and other relevant decisional law. The policies are not to be construed to impinge on the essential independence of judges in making judicial decisions.

 

II. APPOINTMENT AND SEVERANCE

The appointment and severance of judges and justices is provided for in the Navajo Nation Code. Therefore, nothing in these policies shall be read to be inconsistent with those procedures. This section is intended only to refer to and supplement the applicable Code sections.
 

A.

Appointment

 

1.

Judges and justices are appointed pursuant to 2 N.N.C. 574 (2001), 7 N.N.C. 354 (1995) and 7 N.N.C. 355 (2000).

B.

Severance

Severance of judges and justices from their position may occur by resignation, retirement, removal or death.

 

1.

Resignation

 

 

(a)

A judge who wishes to resign shall submit written notice of resignation to the Chief Justice at least sixty (60) calendar days before the effective date of resignation. The letter shall state the effective date and time, and reasons for leaving.

 

 

(b)

Within ten (10) calendar days, the Chief Justice must accept or deny the notice of resignation in writing.

 

 

(c)

A judge who resigns may, with the approval of the Chief Justice, withdraw the resignation in writing, provided that the withdrawal is made prior to its effective date.

 

2.

Retirement

 

 

(a)

A judge may retire as provided in 7 N.N.C. 353.

 

 

(b)

A judge who wishes to retire must submit a written notice to the Chief Justice stating the effective date and time.

 

 

(c)

A judge who wishes to retire may, with the approval of the Chief Justice, withdraw the notice of retirement in writing, provided that the withdrawal is made prior to its effective date.

 

3.

Removal

 

 

(a)

A judge may be removed from his or her position pursuant to 7 N.N.C. 352 (1985).

 

4.

Death

 

 

(a)

If a judge dies while in office, the effective date of severance will be the date of death.

 

III. ASSIGNMENT OF JUDGES

To ensure stability and consistency in the administration of the Judicial Districts, and to ensure continuity in the handling of court cases by judges, it is preferable that each judge, insofar as is practicable, be permanently stationed at one of the established judicial districts.
 

A.

Duty Stations for Judges

 

1.

Every judge of the Navajo Nation shall be assigned to a duty station in one of the judicial districts of the Navajo Nation. Each assignment of a judge to a duty station is to be made by the Chief Justice of the Navajo Nation after consultation with the Judicial Conference. Initial temporary assignment of a newly confirmed judge may be made without the recommendation of the Judicial Conference, pending consultation with the Judicial Conference.

 

2.

When making an assignment, the following factors shall be considered: the need for efficient caseload management, the best interests of the Navajo Nation Judicial Branch, and personal and family hardships on the assigned judge.

B.

Temporary Assignment of Judges Outside of Duty Stations

 

1.

The Chief Justice may temporarily assign a judge to a district outside of his or her duty station only in the following situations:

 

 

(a)

Where a judge is ill or absent and there is not another judge within that judge's district available to hear the judge's cases;

 

 

(b)

Where a judge enters an order of recusal, and there is not another judge within the district available to hear the case on which the judge recused;

 

 

(c)

Where the judge or all judges of a judicial district certify that they have a case backlog and the Chief Justice finds that the assignment of another judge is necessary to alleviate the backlog;

 

 

(d)

Where the Chief Justice determines that, because the district faces a case of particular importance or complexity and length, the assignment of another judge is required to assist in case management for the district;

 

 

(e)

Where the Chief Justice and the Judicial Conference find that assignment of a judge is necessary for the administrative convenience of the courts or is necessary to avoid any appearance of impropriety or scandal.

 

2.

A judge will not be temporarily assigned to another district unless the requesting district has performed the following procedure

 

 

(a)

When the assignment is because of recusal, the court administrator must file a written request with the Chief Justice, attaching copies of the orders of recusal signed by each judge of that district.

 

 

(b)

When the assignment is for any other reason, the district requesting the assignment must file a written request with the Chief Justice. The request must be signed by all judges of the district, except those judges who are absent or ill at the time of the request.

 

 

(c)

All requests for assignment must provide that complete arrangements have been made for the visiting judge's per diem, lodging, and other necessary expenses. Any request for assignment must list the cases and/or hearings which the existing judge is to hear, the days or hours for which the assignment is to begin and end, and/or the type of administrative duties which the visiting judge is to perform.

 

3.

The judicial district requesting the services of another judge or hosting the visiting judge outside of his or her duty station must pay all of the visiting judge's reasonable and necessary expenses from the requesting court's budget. "Reasonable and necessary expenses" shall include transportation, lodging, meals, and other necessary expenses. The district shall reimburse either the judge directly for using his or her personal vehicle, or, if the judge uses a Navajo Nation vehicle assigned to another judicial district, then the reimbursement shall be paid to that district. The visiting judge's expenses cannot be denied because of the length of the assignment at a district other than his or her duty station.

 

4.

The court administrator of the host district shall be responsible for making arrangements for all personnel, materials, and supplies needed by the visiting judge, including necessary clerks, bailiffs, and other personnel. Except where specifically assigned by the Chief Justice, the visiting judge shall have no administrative responsibilities or authority within the hosting district, other than to comply with all policies and rules applicable to all judges.

 

5.

The Chief Justice shall develop two lists of judges for assignment: one for judges permanently assigned in New Mexico districts, and one for judges permanently assigned in Arizona districts. Except in unique circumstances, when choosing which judge to assign the Chief Justice shall determine from which of the two states the request came. Unique circumstances may include, but not be limited to, instances when one state experiences a shortage of judges due to resignation or retirement. The Chief Justice shall first choose the judge whose name appears at the top of the corresponding list for assignment. If that judge does not recuse himself or herself, his or her name shall be moved to the bottom of the list. If he or she recuses, his or her name will remain at the top of the list, but the Chief Justice shall choose the next name on the list. If that judge does not recuse, his or her name shall be moved to the bottom of the list. The procedure will continue until a judge is chosen without recusal. A judge from one state may consent to assist a judge from another state, or to have his or her name placed on the list from both states. Such consent shall be made in writing to the Chief Justice, and the requesting judge may remove his or her name from the additional list at any time upon notice to the Chief Justice. Once the lists are initially developed, the order of the names cannot be changed except by the procedure described above.

 

IV. MANAGEMENT DUTIES AND RESPONSIBILITIES OF NAVAJO NATION JUDGES

Judges are ultimately responsible for the judicial and administrative duties and responsibilities attached to the judicial districts to which they are assigned. With respect to the Supreme Court, the responsibility for judicial and administrative responsibilities lies in the Chief Justice or his designee. To ensure the optimum performance of their primary responsibilities to hear and decide cases, the judges' administrative responsibilities with respect to the daily management and operations of their judicial districts and the supervision over the judicial district employees are delegated to the Court Administrators of the Districts. The daily management and operations of the Supreme Court and supervision over the Supreme Court employees lies with the Chief Justice or his designee. Judges shall exercise sole direct supervision of the Court Administrators and the Staff Attorneys within their judicial districts.

From time to time the services of the staff attorneys may be used by the Office of the Chief Justice in consultation with the district court judges from the staff attorney's assigned district.

 

V. USE OF PUBLIC PROPERTY

Inappropriate and improper use of public property, including public funds, time, personnel and assets is prohibited. Judges and justices should ensure that their use of such property is for proper and official purposes only. Judges and justices should also ensure that the use of such property by persons under their supervision and control, direct or otherwise, is carried out properly and only for official purposes.

All writings, products and other things, including but not limited to intellectual properties relating to a judge or justice's work with the Courts produced by that judge or justice in the course of his employment with the Judicial Branch remains the property of the Judicial Branch and may not be sold, copyrighted, owned or possessed by the judge for purposes of distribution for personal financial gain. All such property must be surrendered to the Judicial Branch upon leaving office.

 

VI. SEXUAL HARASSMENT

The Navajo Nation Judicial Branch expressly prohibits any form of employee harassment based on sex or sexual preference. It is the policy of the Navajo Nation Judicial Branch to protect all judges and employees regardless of gender identity, male or female, against unsolicited or unwelcome behavior of a sexual nature. This policy applies to the conduct of all judges and justices of the Navajo Nation Courts and to all incidents of alleged sexual harassment.

A.

Definition

Sexual Harassment is defined as unsolicited or unwelcome conduct of a sexual nature that has a negative effect or interferes with a person's work performance or creates an intimidating, hostile, or offensive work environment. It can be verbal or physical. "Unsolicited or unwelcome" includes any attention that a reasonable person would know is unwanted or unwelcome.

B.

Filing a complaint

Any person alleging sexual harassment by a judge must file a written complaint with the Chief Justice. The Chief Justice shall immediately forward the original complaint to the Judicial Conduct Commission (Commission). The Commission shall then proceed with an investigatory process in accordance with its rules and procedures then in effect.

C.

Confidentiality

An allegation of sexual harassment shall be investigated in a manner so as to protect, as much as possible, the privacy of all persons involved.

D.

Retaliation

 

1.

The Navajo Nation Judicial Branch prohibits any form of retaliation against any employee for filing a bona fide complaint under this policy or for assisting in an investigation. A judge found to have retaliated against another person in connection with a report or its investigation shall be subject to disciplinary action.

 

2.

If after an investigation of sexual harassment the Commission determines that the complaint is not bona fide, disciplinary action up to and including removal may be taken against the person who filed the complaint.

E.

Duty to report

Judges have an affirmative duty to maintain the workplace free of sexual harassment and to report sexual harassment in a timely manner.

F.

Training

Judges shall provide training opportunities for court employees within their respective jurisdiction regarding this section and regarding the characteristics of sexual harassment. All judges shall receive education that enables them to recognize sexual harassment and to take appropriate action pursuant to this section.

G.

Allegations by other persons

This section protects all employees and judges from sexual harassment. However, judges are held to strict moral conduct at all times, even outside the workplace and with respect to nonemployees.
Sexual harassment committed by a judge against a person not employed by the Navajo Nation Judicial Branch is a violation of Canon 7 of the Code of Judicial Conduct. That section states: "A Navajo Nation judge shall avoid impropriety and the appearance of impropriety in all activities."
Allegations of sexual harassment by non-employees shall be handled in accordance with the Commission's rules and procedures then in effect.

H.

Administrative Leave

The Chief Justice shall, upon the recommendation from the Judicial Conduct Commission, place a judge on administrative leave with or without pay. The Chief Justice shall also, upon the same recommendation, do whatever is reasonably necessary to protect the complainant. Any action taken by the Chief Justice pursuant to this section shall be within 5 working days of the Commission's recommendation.

Failure of the Chief Justice to take action recommended by the Commission within 5 working days of the Commission's recommendation shall result in disciplinary action against the Chief Justice as recommended by the Commission.

I.

Judiciary Committee

The Judiciary Committee shall be notified, in writing, of the outcome or result of any sexual harassment complaint against a judge within 5 working days of the conclusion or recommendation of the Commission.

J.

Penalties

A judge found to have violated this policy against sexual harassment shall be subject to discipline including suspension without pay, public censure, or removal.

 

VII. HOURS OF WORK
 

A.

Standard Work Day

Judges lead by example. To ensure that the courts of the Navajo Nation are accessible to the Navajo public during normal working hours and recognizing as well, that judges are, as public officials, often times called upon to provide judicial and administrative services beyond the normal work day, judges should be observant and attendant to the normal 8-hour work day. Judges should report to their duty stations in a timely manner and remain until the close of business day to ensure their accessibility to the conduct of court business. A continual and substantial deviation from this observance without authorization and to the detriment of the court may result in discipline of a judge.

B.

Flextime

A judge may be authorized to deviate from the standard work day by the Chief Justice. This deviation however, must take into account the needs of the judicial district to which the judge is assigned.

 

VIII. LEAVE

The needs of judges shall be balanced with the needs of the public for judicial efficiency when considering leave so that judges are afforded reasonable opportunities to enjoy leave time while fulfilling judicial duties and public expectations. The public expects its judges to be available when they are needed. Judges are expected to perform their public duties and to devote sufficient time to their work to complete it promptly and diligently.

A.

Types of Leave

 

1.

Annual leave -- Is an allotted and authorized absence for rest, recreation or other purposes.

 

2.

Sick Leave -- Is leave taken for medical purposes, including treatment of and/or recuperation from illness by the judge or a judge's family member. "Treatment" includes both traditional and modern practices. For the purposes of this section, "family member" shall include the judge's spouse, child, sibling, parent, grandparent, or grandchild. A doctor's or medicine man's statement shall be required for sick leave beyond a three (03) consecutive day period. Extended sick leave shall be available to judges when circumstances dictate. The Chief Justice shall require documentation substantiating extended sick leave from the requesting judge.

 

3.

Leave for jury or witness duty -- A judge who is summoned to jury duty or subpoenaed as a witness in a judicial proceeding shall be granted leave with pay by the Chief Justice for the time required to meet the obligations compelled under summons or subpoena. The judge shall provide as much advance notice to the Chief Justice as possible prior to the time of the required appearance.

When a judge continues to draw his or her judicial salary while appearing in response to a jury summons or subpoena, any witness fees or other compensation received for the judge's appearance shall be remitted to the Administrative Office of the Courts. The judge may, however, retain any reimbursements for expenses incurred by the judge, including meals, mileage, lodging or replication of documents.

 

4.

Voting leave -- A judge who is a registered voter may take up to four (4) hours leave as needed to cast his or her vote in any federal, state, local or Navajo Nation election, during the hours when polling places are open.

 

5.

Military leave -- A judge who is a member of the National Guard, a reserve component of the Armed Forces of the United States, or who is inducted into the Armed Services shall be provided military leave as called upon to serve and in accordance with applicable federal law.

Judges who are required to serve will be paid their full salary and benefits for the first 80 hours of military leave taken for each year. Judges who volunteer or who may be required to serve beyond 80 hours shall serve without pay, but shall continue to receive full fringe benefits during the period of military service.

 

6.

Bereavement leave -- The Chief Justice shall grant a judge up to eight days of paid leave to attend the funeral of an immediate family member and for the observance of traditional mourning ceremonies and periods. Should a judge require additional time to grieve, the Chief Justice may authorize such additional time as may be needed with or without pay.

For the purposes of this rule, "immediate family members" shall honor traditional Navajo concepts of family, and shall include but not be limited to the judge's: spouse, child, stepchild, foster child, parent, grandparent, grandchild, sibling, half-brother or sister.

 

7.

Administrative leave -- The Chief Justice may approve paid or unpaid administrative leave for judges under any of the following circumstances:

 

 

(a)

to allow a judge to provide community legal education to the public;

 

 

(b)

emergency situations, such as extreme weather conditions, fire, flood, or malfunction of publicly-owned or controlled machinery or buildings;

 

 

(c)

pursuant to an executive declaration by the Chief Justice that a state of emergency, disaster, or grief exists;

 

 

(d)

upon determining that it is in the best interest of the judiciary for a judge to be temporarily relieved of duty pending an investigation of alleged wrongdoing.

 

8.

Holiday Leave -- The Navajo Nation Judicial Branch will observe all holidays declared by the Navajo Nation and federal governments, except for Columbus Day. The Chief Justice may also declare up to four additional holiday days for the Judicial Branch each calendar year.

 

9.

Family Leave -- Family leave is available, with pay, to all judges under particular circumstances that are critical to the life of a family, including:

 

 

(a)

Upon the birth of the judge's child;

 

 

(b)

Upon the placement of a child with the judge for adoption or foster care;

 

 

(c)

When the judge is needed to care for his/her child, spouse, or parent who has a serious health condition; or

 

 

(d)

When the judge is unable to perform the functions of his/her position because of a serious health condition.

B.

Accrual Rate

Judges and justices shall accrue annual and sick leave at the following rates:

 

1.

Judges with less than 3 years of service to the Judicial Branch shall be allotted 156 hours of annual leave and 156 hours of sick leave per annum.

 

2.

Judges with more than three years and less than eight years of service to the Judicial Branch shall be allotted 208 hours of annual leave and 208 hours of sick leave per annum.

 

3.

Judges with more than eight years of service to the Judicial Branch shall be allotted 260 hours of annual leave and 260 hours of sick leave per annum.

C.

Carryover

No more than 320 hours of annual leave may be carried forward from one calendar year to the next. No more than 320 hours of sick leave may be carried forward from one calendar year to the next.

D.

Payment of Excess Leave

No judge shall be paid for unused annual leave or sick leave at any time, including severance from employment with the Judicial Branch

E.

Procedures For Requesting Leave

Aside from unforeseen or emergency circumstances, judges should seek leave approval as far in advance of anticipated leave as possible, and in no event less than seven days before a planned leave is to begin. The Chief Justice shall approve or disapprove all leave requests made by judges in a timely and reasonable manner.

F.

Leave Responsibility And Scheduling

It shall be the responsibility of the judge to ensure that their absence from the court does not adversely impact the judicial efficiency of the court. In multi-judge districts, the judges shall coordinate their planned leave and arrange to assume the duties of other judges in their absence or unavailability where judicial action is required. The Chief Justice may grant extended sick leave when circumstances dictate and when such leave requested is substantiated.

G.

Donation of Leave

A judge may donate his or her allotted leave to another judge, Judicial Branch employee or to an employee within another branch of the Navajo Nation government for justifiable reasons, with the approval of the Chief Justice.
An employee from the Judicial Branch may donate sick leave hours to a judge or justice pursuant to applicable rules and policies.

 

IX. TRAINING

The importance of having a well-educated judiciary cannot be overstated. As much as or more than any other public official, a judge must be adequately knowledgeable in the law, procedures, traditions and wisdom of the Navajo Nation to fulfill his or her public and ethical responsibilities. Because of the paramount importance of training, it is the responsibility of both the Navajo Nation Judicial Branch as a whole and every judge individually to identify and provide training needs for both themselves and their colleagues.

A.

Specialized Subjects

The following subjects have been identified as specialized job-related subjects necessary for the judges of the Navajo Nation judiciary:

 

1.

Managing the courtroom

 

 

(a)

Inherent court powers

 

 

(b)

Judicial policy
 

 

2.

Fundamental laws of Din

 

 

(a)

Traditional law

 

 

(b)

Customary law

 

 

(c)

Natural law

 

 

(d)

Common law
 

 

3.

Court rules

 

 

(a)

Navajo Rules of Civil Procedure

 

 

(b)

Navajo Rules of Criminal Procedure

 

 

(c)

Navajo Rules of Probate Procedure

 

 

(d)

Navajo Rules for Repossession Proceedings

 

 

(e)

Navajo Rules of Civil Appellate Procedure

 

 

(f)

Navajo Rules of Appellate Procedure

 

 

(g)

Navajo Nation Child Support Guidelines

 

 

(h)

Navajo Children's Code Rules of Procedure

 

 

(i)

Navajo Nation Domestic Abuse Protection Act

 

 

(j)

Din Elder Protection Act

 

 

(k)

Navajo Court's Appointment of Counsel and Indigency Policy

 

 

(l)

Navajo Rules for Small Claims Proceedings
 

 

4.

Administrative law (Navajo administrative agencies, exhaustion of remedies, due process, fair hearings, etc.)

 

5.

Civil and criminal jurisdiction

 

6.

Civil rights (Indian Civil Rights Act and Navajo Nation Bill of Rights) and Navajo Nation Sovereign Immunity Act

 

7.

Contempt

 

8.

Contracts and commercial law

 

9.

Criminal law and procedure

 

10.

Domestic relations

 

11.

Evidence

 

12.

Children's law

 

13.

Judicial ethics

 

14.

Judiciary Committee's purposes and powers

 

15.

Jury trial practice

 

16.

Legal research and writing

 

17.

Peacemaking

 

18.

Probate

 

19.

Probation law

 

20.

Title II, Title VII and other relevant N.N.C. titles

 

21.

Torts

 

22.

Trial practice

 

23.

Other subjects identified in Judicial Conference

B.

Training Requirements

 

1.

Minimum Training Hours

 

Every judge shall earn a minimum of fourteen (14) hours of training each calendar year. At least two (2) of the required fourteen (14) hours shall be on judicial ethics. At least four (4) hours shall be related to writing skills.
 

At the end of each fiscal year, each judge shall sign a statement attesting to the courses taken and the number of hours attended for each course.

 

2.

Approved Training Organizations

 

 

 

(a)

Permanent Judges (and probationary justices with previous appointments as permanent judges)


Judges may fulfill mandatory training hours by completing courses offered by the Judicial Branch (including courses offered at annual conferences and quarterly judicial conferences), the Navajo Nation, the National Indian Justice Center, the National Judicial College, the Navajo Nation Bar Association, any state bar association, a college or university, or any other training organization approved by the Chief Justice.

 

 

 

(b)

Probationary Judges

 

Navajo Nation judges on probationary status shall immediately attend an approved course of study offered by the National Judicial College or the National Indian Justice Center. Completion of the course of study shall satisfy the training requirement of 7 N.N.C. 355(C) (1995).
 

The approved course of study for all probationary judges shall include, but not be limited to, courses in the following subjects:

 

 

 

i.

Conducting a trial

 

 

 

ii.

Court/Courtroom management

 

 

 

iii.

Evidence

 

 

 

iv.

Decision making

 

 

 

v.

Domestic violence

 

 

 

vi.

Ethics

 

 

 

vii.

Fundamental laws of Din

 

 

 

viii.

General jurisdiction

 

 

 

ix.

Judicial writing

 

 

 

x.

Managing complex litigation

 

 

 

xi.

Search, seizure and criminal procedure

 

 

 

xii.

Special court jurisdiction
 

 

 

 

In addition to the required courses for all probationary judges, probationary justices shall also attend courses in Appellate rules and procedure.

 

The Chief Justice may approve a deviation from the approved courses of study for good reason, such as course unavailability.

C.

Training Priority

Probationary judges shall have priority to receive mandatory judicial training.

D.

Training Request Procedure

Every judge seeking training shall submit a training request package to the Chief Justice for approval. The package shall include:

 

 

(a)

completed Judicial Branch Training Request Form;

 

 

(b)

brochure, agenda, program or flyer advertising the course;

 

 

(c)

memorandum describing how the course will benefit the judge; and

 

 

(d)

information on court docket status, scheduled hearings, pressing or urgent matters, and whether arrangements have been made with another judge to handle these matters in the judge's absence.

 

 

All training requests must be submitted as far in advance as possible, but in no event less than ten days before the training is scheduled to begin. In multi-judge districts, the judges shall coordinate their training requests and arrange to assume the duties of other judges in their absence where judicial action is required.

 

X. JUDICIAL PERFORMANCE EVALUATIONS

Judges and justices are appointed officials exercising considerable authority over the most valued interests of Navajo people and institutions. They must be counted upon to perform their duties according to the highest standards of personal and professional conduct.
 

The review and evaluation of judges' performance benefits both the public and the judges themselves. It provides an opportunity for objective and responsible inquiry into each judge's strengths and weaknesses. It offers guidance on training priorities for the judge. Most importantly, it assures the public that their judiciary is open to objective analysis and improvement of the performance of its public duties.
 

The purpose of this section is to establish the scope, frequency, criteria and procedures for judicial performance review in furtherance of the above principles. The intent of this section is to create an objective, fair, confidential and constructive review process that will lead to improvements in the performance of individual judges and the Navajo Nation Judiciary as a whole.

A.

Scope and frequency:

 

1.

Probationary Judges and Justices:

The Chief Justice shall review and evaluate the performance of all probationary judges and justices of the Navajo Nation Courts every six months during the judge's probationary period and at the end of the judge's probationary period.

The Judiciary Committee shall review and evaluate the performance of the Chief Justice during his probationary period.

 

2.

Permanent Judges and Justices:

The Chief Justice shall review and evaluate the performance of all permanent judges and justices of the Navajo Nation Courts every year of each judge's tenure, according to the principles and procedures set forth in this section. A permanent judge with an exemplary performance evaluation for four (04) consecutive years may be reviewed and evaluated every third year thereafter, while in good standing.

The Judiciary Committee shall review and evaluate the performance of the Chief Justice after his or her probationary period has expired.
 

 

3.

Scope of review:

The performance evaluation shall review and analyze the judge's performance since the last evaluation, if any, in at least the following areas:

 

 

(a)

judicial conduct and demeanor

 

 

(b)

understanding of and ability to apply the law, procedural rules, and Navajo tradition applicable to each case

 

 

(c)

oral and written expression skills

 

 

(d)

punctuality and attendance

 

 

(e)

timeliness and diligence in discharging official duties

 

 

(f)

collegiality

 

 

(g)

skill at supervising and directing staff

 

 

(h)

adherence to personal and professional ethical standards

 

 

(i)

diligence in obtaining and contributing to educational and training programming

 

 

(j)

adherence to administrative policies and rules of the Judicial Branch

 

 

(k)

physical capacity to perform judicial duties

 

 

(l)

any other issues or areas of concern or of outstanding achievement pertaining to the judge under review.

 

 

In conducting its review of the above factors, the performance review team shall not consider the judge's legal skills, or knowledge or application of the law in any pending case that is then under judicial review.

B.

Evaluation Procedures:

 

1.

Initiation of process:

The Chief Justice shall initiate a periodic performance review process for each judge or justice:

 

 

(a)

not later than one month prior to the end of each six month period of the probationary term of a new judge or justice,

 

 

(b)

not later than three months prior to the end of the two-year probationary period of the judge or justice, and

 

 

(c)

not later than three months prior to the end of each year after the date of filing of the last evaluation report of any permanent judge or justice, and

 

 

(d)

not later than three months prior to the end of the each year after the date of the last evaluation report on a permanent judge with four (04) prior consecutive exemplary performance evaluations.

 

2.

Notice to judge:

The Chief Justice shall initiate the performance review process by notifying the judge that a probationary or periodic performance review will begin, and outlining to the judge the steps to be undertaken, substantially as set forth in this section.

 

3.

Appointment of performance review team:

For each judicial performance review, the Chief Justice shall appoint a performance review team comprising the Chief Justice, a judge designated by the Chief Justice from a different judicial district than the judge under review, a Navajo Nation Bar Association Commissioner from the judge's district designated by the judge under review, and a member of the Judiciary Committee designated by the Judiciary Committee. If the judge under review fails to designate a NNBA Commissioner for the team, the Chief Justice and his designee to the team shall jointly select a NNBA Commissioner. Every effort shall be made to avoid conflicts of interest on the review team, including avoiding the appointment of members with close personal or family ties to, or conflicts with, the judge under review.

 

4.

Procedure for obtaining evaluative information:

 

 

(a)

The performance review team shall gather information about the judge's performance, as appropriate to the circumstances involving the judge under review.

 

 

(b)

In every review, the performance review team shall at a minimum take the following steps:

 

 

 

i.

Ask the judge under review to assess his or her own strengths and weaknesses in each performance area listed in A (3), above;

 

 

 

ii.

Conduct and analyze the results of a standard written survey of local attorneys (the Navajo Nation Bar Association survey may be used for this purpose), other judges, court staff and law enforcement officers assessing the judge's performance in each area;

 

 

 

iii.

Review all survey results with the judge and offer the opportunity for the judge to explain, supplement or refute any unfavorable survey responses, provided that the team shall not identify, nor reveal any information that could allow the judge to recognize, the comments of any particular respondent;

 

 

 

iv.

Recommend to the judge any corrective measures, training, management changes or other action the judge should take to remedy any deficits that the team finds credible; and

 

 

 

v.

Summarize all of the above information and recommendations, plus the judge's response to any recommendations, in a confidential memorandum transmitted directly to the Chief Justice.

 

 

 

vi.

Recommendations to a judge for corrective action that a team might offer may include, but are not limited to:

 

 

 

 

1.

projecting a more impartial, responsive, and/or concerned demeanor during proceedings;

 

 

 

 

2.

adoption of improved case management techniques;

 

 

 

 

3.

participation in specified types of training programs; or

 

 

 

 

4.

participation in a mentoring relationship.

 

 

(c)

The confidential memorandum reporting on the findings and recommendation of the team reviewing the performance of each judge shall be placed in the judge's confidential personnel file and disclosed only upon direction of the Chief Justice or the judge under review. This document shall be treated in all respects as a protected document within the meaning of the Navajo Nation Privacy and Access to Information Act, 2 N.N.C. 85(A)(4). The Chief Justice may only disclose the contents of the report when:

 

 

 

i.

it is subpoenaed or requested in discovery for a judicial proceeding;

 

 

 

ii.

it is needed by a licensed practitioner as a medical or psychiatric record;

 

 

 

iii.

it is requested by the Judiciary Committee, provided that the Committee agrees in writing to protect the confidentiality of the memorandum, pursuant to 2 N.N.C. 86 G;

 

 

 

iv.

as otherwise provided in 2 N.N.C.86 et seq.

 

 

(d)

Upon reviewing the team's confidential memorandum assessing the performance of the judge and its recommendations, the Chief Justice shall accept the team's report and recommendations.

C.

Merit or Bonus Pay

While all judges will be evaluated, only those who are on permanent full-time status and who
have completed at least one year of continuous service will be eligible for merit or bonus pay recommendation.
No merit or bonus pay shall be approved unless funds are appropriated and available. If funds are available, merit or bonus pay may be given according to policies and procedures established by the Chief Justice.

 

XI. COMPLAINTS AND GRIEVANCE PROCESS

Judges and justices play the most vital role and bear the highest responsibility within the Navajo Nation for dispensing justice. Their credibility and effectiveness depends upon maintaining public confidence in the integrity and fairness of all the judges. The public must therefore be given a way of registering complaints against judges whom they believe have acted unfairly or irresponsibly, and must know that their complaints are considered seriously. To create a fair and consistent work environment, Judicial Branch staff and district employees must also be able to file complaints about judges whom they believe have acted in violation of the law or these policies. At the same time, judges must not be deterred from the impartial performance of their duties by fear of having to defend unfounded complaints against them when they act in accordance with the law and their conscience.

A.

Complaints against judges and justices

Anyone may grieve any actions taken by a judge or justice in violation of these policies. With the exception of sexual harassment and complaints against the Chief Justice, all complaints against judges or justices shall be initiated by filing a written complaint with the Chief Justice. The complaint must specify the alleged misconduct and provide factual information, including any available documentation supporting the allegation. Within 10 working days the Chief Justice shall notify the complainant in writing that he intends to handle the complaint pursuant to his 7 N.N.C. 371 administrative duties or to transfer the matter to the Judicial Conduct Commission (Commission) or other appropriate entity.

When deciding how to proceed with the complaint against a judge, the following factors shall be considered: the nature and complexity of the complaint and whether further involvement of the Chief Justice may create an appearance of impropriety or unfairness.

 

1.

If the Chief Justice transfers the complaint to the Commission, the matter shall proceed according to the Commission's rules and procedures then in effect without further action from the Chief Justice.

 

2.

If the Chief Justice transfers the complaint to another appropriate entity (e.g., Office of Ethics and Rules, Office of the Prosecutor, etc.) the matter shall proceed according to the entity's rules and procedures then in effect. The Chief Justice shall immediately notify the complainant and affected judge in writing of the transfer.

 

3.

If the Chief Justice chooses to handle the complaint pursuant to his 7 N.N.C. 371 administrative duties, he shall conduct appropriate research and investigation in a timely and reasonable manner. After appropriate investigation, the Chief Justice may:

 

 

i.

Dismiss the complaint as unfounded;

 

 

ii.

Dispose summarily of any complaints alleging minor infractions by directing the judge to accept counseling, training, mentoring or supervision;

 

 

iii.

Proceed to a formal disciplinary process pursuant to his disciplinary authority. The Chief Justice may consult with the Commission if formal discipline is necessary.
 

B.

Complaints against the Chief Justice

Complaints against the Chief Justice shall be transferred to the Commission to proceed according to the Commission's rules and procedures then in effect.

C.

Grievances against the Chief Justice as administrator

A grievance may also be filed by a judge against the Chief Justice or Acting Chief Justice in his administrative capacity for any alleged unfair treatment in the exercise of these policies. All grievances against the Chief Justice or Acting Chief Justice in his administrative capacity are to be filed with and heard by the Judicial Conduct Commission, pursuant to its rules and procedures then in effect.

D.

Retaliation

There shall be no retaliation or reprisal of any sort by judges or justices against a grievant.