Jerry A. Begay -vs- Benson Silversmith

The 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 plaintiff’s attorney.

IN THE DISTRICT COURT OF THE NAVAJO NATION

JUDICIAL DISTRICT OF CROWNPOINT, NAVAJO NATION (NEW MEXICO)

JERRY A. BEGAY, Plaintiff No. CP-CV-129-97

-vs-

BENSON SILVERSMITH, Defendant.

OPINION AND ORDER

On 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:

1. “Harassment by the Peacemaker or harassment by another which is not properly handled by the peacemaker.”

2. “Invasion of personal privacy to an unreasonable extent.”

3. “Conduct by the Peacemaker in the peacemaking process which is degrading, inhuman, dangerous, assaultive or otherwise violative of basic human rights.”

4. Conduct which constitutes a violation of the Navajo Nation Code of Judicial Conduct, as it applies to peacemakers. Rule 4.1, Navajo Peacemaker Court Rules.

Scott 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.

The 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.

There 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.

The 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.

Following 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.

The 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.

The 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.

The 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.

Accordingly, 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) days.