Crownpoint District Court denies a motion to vacate Navajo peacemaking or
enter a protective order, laying out the standards for a protection order and
applying them to the testimony provided at hearing. The court finds a violation of the good faith pleading
standards of Rule 11(a)(1) of the Navajo Rules of Civil Procedure by the
IN THE DISTRICT COURT OF THE NAVAJO NATION
DISTRICT OF CROWNPOINT, NAVAJO NATION (NEW MEXICO)
A. BEGAY, Plaintiff No. CP-CV-129-97
August 3, 1999, the court entered an order sending this case into peacemaking
in hopes that traditional process would resolve the issues between the
parties. Subsequently, three
peacemaking sessions were held, and the plaintiff then made a motion to vacate
peacemaking. It was sweeping in
its allegations of wrongdoing and impropriety by the peacemakers assigned to
the case. Upon a review of the
motion, the court instructed that the proper standards for a motion to vacate
peacemaking are the protective order provisions of Rules 4.1 and 5.1 of the
Navajo Peacemaker Court Rules, and that the plaintiff would have to present
evidence to show that there were violations of those provisions before the
court could terminate the peacemaking process.
Accordingly, the court conducted an evidentiary hearing on the motion
on November 4, 1999. This opinion
and order constitutes the court’s decision on the motion to vacate
peacemaking, treated as a motion for a protective order under Rule 4.1 of the
rules for peacemaking. The court
was troubled by the contentious claims made by the plaintiff’s attorney and
ordered the preparation of a transcript of the hearing to review to make
certain that this decision is based on the evidence presented to the court.
The standards for the issuance of a protective
order are whether there has been:
by the Peacemaker or harassment by another which is not properly handled by
of personal privacy to an unreasonable extent.”
by the Peacemaker in the peacemaking process which is degrading, inhuman,
dangerous, assaultive or otherwise violative of basic human rights.”
which constitutes a violation of the Navajo Nation Code of Judicial Conduct,
as it applies to peacemakers. Rule 4.1, Navajo Peacemaker Court Rules.
Borg, Esq., the plaintiff’s attorney, called Irene Barber, Lucy Curtis,
Katherine Domingo, and Jerry Begay as witnesses. Irene Barber and Lucy Curtis are plaintiff Jerry A. Begay’s
sisters, and Katherine Domingo is the plaintiff’s niece.
They were present at peacemaking sessions and witnessed the interaction
of the peacemakers and the parties. The
peacemakers were Alice Benally and Tex Anderson, Jr., and they were assisted
by Imogene Long, who is the peacemaker liaison for this judicial district.
Henrietta J. Smith and her husband, Michael Smith, who participated in
the peacemaking sessions, were present at the hearing but did not testify.
testimony of the plaintiff and his family members shows no harassment by
either the peacemakers or by a party. There
were some complaints about the amount of time devoted to issues raised by
Henrietta J. Smith and her husband, Michael Smith. Ms. Smith is the plaintiff’s decedent’s natural daughter.
The issues she brought into peacemaking related to a failure to include
her as an heir in the probate proceedings which resulted in Mr. Begay being
named as the decedent’s administrator, and Ms. Smith’s questions about
whether the traditional marriage between Mr. Begay and the decedent was
proper. At one point, the
peacemakers excluded individuals from the discussions of whether or not there
was a marriage out of privacy considerations. While there may have been some understandable annoyance about
devoting a great deal of time to the marriage issue, and there was testimony
regarding some resentment of Ms. Smith making a claim for the potential
proceeds of any settlement, that hardly rises to the level of harassment.
While the plaintiff’s attorney attempted to show that the peacemakers
had threatened the plaintiff and his family in an attempt to deter them from
consulting with Mr. Borg, that did not emerge from the testimony.
The verb, to "harass,” means "1.
To disturb or irritate persistently.
2. To wear out; exhaust.
3. To enervate (an enemy)
by repeated attacks or raids.” AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 600 (1981).
There is no evidence of harassment in this case.
While there were some disagreements, and disagreement is the very
reason for peacemaking, witnesses said that proceedings were respectful.
is no invasion of personal privacy issue here, although the peacemakers
limited participation in the discussions of whether or not there was a proper
traditional marriage to protect the plaintiff’s personal privacy and that of
the decedent’s natural daughter.
court found no evidence whatsoever of any conduct in the peacemaking process
which was degrading, inhuman, dangerous, assaultive or otherwise violative of
any basic human right. There did
not appear to be any violation of the Navajo Nation Code of Judicial Conduct.
testimony by the plaintiff’s witnesses, the plaintiff’s attorney had the
opportunity to examine both Alice Benally and Tex Anderson, Jr., the
peacemakers who attended the peacemaking sessions. (Mr. Anderson was absent from one session due to vehicle
problems.) The plaintiff’s
attorney had the opportunity to confront the peacemakers with his theories
that a $25,000 proposed settlement had been forced on Mr. Begay and that they
had abused the process by exercising favoritism toward the defendant.
The testimony did not support the plaintiff’s attorney’s theories
or even raise concerns that there may be something to them.
plaintiff’s evidence on the motion to vacate was, as a contemporary saying
goes, "The gate is down; the bells are ringing; the lights are flashing -
but the train ain’t coming.” The
plaintiff’s attorney was unable to prove either the elements of the
peacemaking protective order rule (which are quite broad, considering that the
major provisions of the Navajo Nation Code of Judicial Conduct apply) or the
theories offered in the motion to vacate.
court must take this occasion to observe that the over-zealousness of the
plaintiff’s attorney is quite obvious in the record and in the transcript.
He made sweeping accusations against the peacemakers’ honor and
integrity (and that of the peacemaker liaison) which were simply unfounded.
The plaintiff’s attorney repeated the same questions over and over to
Irene Barber, making it obvious that if she did not say what the attorney wanted
her to say, he was going to keep asking until he got the answer he wanted.
Unfortunately, the "facts” recited in the motion to vacate existed
only in the attorney’s mind, and his clients did not confirm his fantasies
about what happened. (By "clients”
the court refers to testimony by the plaintiff’s sisters to the effect that
Mr. Borg represents them as well as their brother, the named plaintiff, when it
is not apparent what interest they may have in the decedent’s death.)
Rule 11(a)(1) of the Navajo Rules of Civil Procedure provides that when
counsel signs a pleading, his or her signature is a certificate that the facts
in that pleading are made in good faith, are believed to be true and accurate,
and are based upon a reasonable investigation of asserted statements of fact.
The testimony elicited in the hearing before the court clearly shows that
counsel either did not make a reasonable investigation of the facts or he is
guilty of bad faith pleading. The
court will resist the temptation to sanction counsel under Rule 11, or to raise
the more serious issue of contempt of court by unfounded attacks on the
peacemakers. The court will leave
those matters to the parties. However,
this opinion will stand as a lesson for members of our bar of how a motion
should not be made.
The attorney for the plaintiff attempted to sway the court with his
sweeping allegations of wrongdoing by the peacemakers, but when the court
insisted upon testimony to prove them, the attempt was a dismal failure.
plaintiff has had his day in court on the issue of fairness in peacemaking, and
the plaintiff’s attorney has had the opportunity to prove his theories.
At end, the theories have more to do with attempting to discredit
peacemaking than with the facts. In
1982, when the Navajo Nation judges adopted the peacemaking rules, they clearly
had the prevention of abuses of the process in mind.
None of the standards for protection of the 1982 rules is present in this
case, and there is nothing else to move the court’s discretion to terminate
the peacemaking process.
it is hereby ORDERED that the motion to vacate peacemaking is denied and this
matter shall return to peacemaking for a period of time not to exceed sixty (60)
this 13th day of December, 1999
Irene Toledo, District Judge
top of page