No. SC-CV-31-14' No. SC-CV No. SC-CV No. SC-CV No. SC-CV NAVAJO NATION SUPREME C6URT

Transcription

1 No. SC-CV-31-14' No. SC-CV No. SC-CV No. SC-CV No. SC-CV NAVAJO NATON SUPREME C6URT " Navajo Housng Authorty Pettoner v. ' 1 Navajo Naton Labor Commsson t Respondent. ; And Concernng: Myra Lsa Taylor Jackson Tsose Perette Baldwn-Gumbrecht Eleanor Jmm. Sarah Rggs Real Partes n nterest. OPNON Before YAZZE H. Chef Justce SHRLEY E. Assocate Jrstce and SLOAN A. Assocate Justce by Desgnaton. 1 : <. An orgnal acton aganst the Navajo Naton Labor Commss~n concernng Cause Nos. NNLC NNLC NNLC NNLC and NNLC Charperson Casey Watchman presdng.. Edward J. Hermes Phoenx Arzona Emery B. McCabe Wndow Rock Navajo Naton and Patterson V. Joe Phoenx Arzona for Pettoner; Jennfer Sk~et Wndow Rock Navajo Naton for Respondent; Davd R. Jordan Gallup New Mexco for Myra Lsa Taylor Perette Baldwn Gumbrecht Eleanor Jmm and Sarah Rggs; Lucas M. Frank Albuquerque New Mexco for Jackson Tsose. Ths consoldated acton s before ths Court on f~e separate pettons for a wrt of prohbton aganst the Navajo Naton Labor Commsson ("<pommsson") on the grounds that Ths case was heard at oral argument and subsequently decded by a Pru1e1 of three justces. On May the Chef Justce retred but only after the Court met and fmalzed ths decson.

2 clamants n ths consoldated wrt acton whose separate ~ases reman pendng before the Commsson. All the clamants except one clam they were unjustly dscharged by NHA. The ffth clamant resgned voluntarly but dsputes NHA's calculaton of her annual leave payout clamng a substantal underpayment. All pursued NHA' s nternal grevance process four losng before the NHA Grevance Commttee and one told by.1 NHA md-process and wthout explanaton that the nternal grevance process was beng sus]ended and that she should fle an Offce of Navajo Labor Relatons charge whch s the frst step toward the flng of a complant before the Commsson. All subsequently proceeded to fle Navajo Preference n Employment Act (NPEA) complants before the Commssonseekng monetary and non-monetary relef as authorzed at 15 N.N.C. 612(A) for volatons ofthe NPEA. - Specfcally 15 N.N;C. 612(A)(1) provdes that up9n a fndng of an NPEA volaton. the Commsson s to ssue a remedal order that shall nclltde "wthout lmtaton drected hrng renstatement dsplacement of non-navajo employe~s back-pay front-pay njunctve relef mandated correctve acton to cure the volaton wthn Jreasonable perod oftme and/or upon a fndng of ntentonal volaton mposton of cvl fn~s; provded that lablty for backpayor other forms of compensatory damages shall not accrue from a date more than two years pror to the date of flng of the Charge whch s the bass for.the complant." Secton 612(A)(2) ' permts the award of costs and attorney's fees n certan crcumstances. NHA fled separate pettons for a wrt of prohbton requestng that ths Court prohbt 2

3 the Commsson from hearng any of the fve cases on th~ bass of lack of subject matter j ' jursdcton due to soveregn mmunty as set forth at 6 ~.N.C. 623 of NHA's Plan of Operatons. NHA argues that ths Court's decson n NHA V Johns No. SC-CV (Nav. Sup. Ct. September ) provded that soveregn mmun~y sprngs from wthn the NHA's Plan of Operatons tself and not the Navajo Soveregn nlmunty Act (NSA) and further provded that NHA's mmunty from money judgments mjst be separately and specfcally waved n order for monetary clams under the NPEA to be pursued aganst NHA. NHA argues that snce NHA has not specfcally waved ts mmunty uhder 6 N.N.C. 623 as to NPEA clams nor has t entered nto employment contracts specfcally acknowledgng the applcaton of the NPEA t s mmune from money judgments n such qlams; therefore the Commsson lacks jursdcton to hear such clams. We granted an alternatve wrt to stay the Commsson's proceedngs and posed fve specfc questons to the partes namely () why the Commsson also loses jursdcton over the non-monetary portons of the Real Partes n nterest (RP)'s NPEA clams; () why 15 N.N.C. 609 of the NPEA requrng that all transactonal documents bn the Navajo Naton entered nto by an employer contan an agreement to strctly abde by all requrements of the NPEA or j otherwse have the terms and provsons of the NPEA "ncorporated theren as a matter of law" does not apply; () whether NHA's mmunty can be broaderthan ts parent the Navajo Naton. government; (v) n what way nsurance proceeds are or are?-ot "property" wthn the meanng of 6 N.N.C. 623; and (v) why front-payor back-pay s ndt vested n an employee under an exstng budget rather than consdered a money judgment. Oral argument was held on September at the Navajo Department of Transportaton n Tse Bonto. We now ssue our decson. 3

4 ; NHA's case n ts brefs and at oral argument may be summarzed as follows. NHA beleves ts mmunty at 6 N.N.C. 623 s "unque" due to ts recept of federal housng dollars... and that ths Court's opnon n NHA v. Johns requres there must be an express waver of 6 N.N.C. 623 by contract rather than apply the exceptons to nmunty under 1 N.N.C. 554 of the NSA. Also relyng on NHA v. Johns NHA argues that that the NPEA does not supersede ' any provson n NHA's Plan of Operatons because ths Cmrl1 overruled n ts entrety Tso v. ' NHA No. SC-CV-0-02 (Nav. Sup. Ct. August ) ncludng the Tso Court's vew that 6 N.N.C. 623 was merely a "statutory exempton" overrddenby the NPEA under the presumed l ntent of the Councl. NHA goes on to assert that NHA s mmune from NPEA monetary clams as 6 N.N.C. 623 has not been specfcally waved by contract; as to NPEA clams. Frstly the mmunty at 6 N.N.C. 623 s not a gbneral mmunty from sut but a ' " "condtonal lmtaton" on NHA's qualfed consent to sue and be sued as set forth at 6 N.N.C. 616(B)(1). NHA v. Johns slp op. at 7 (ctng NHA v. Dana 5 Nav. R. 157 (Nav. Ct. App. ~ 1987». t exempts all NHA property and funds from judcal process but however provdes for several specfc exceptons: (1) when there s "specfc reference n any statute ctng ths provson and statng clearly that the excepton s waved"; (2) when NHA has oblged tself r through pledges and lens; (3) when the federal government Wtshes to pursue remedes under the r subchapter; and (4) when NHA pursues evcton actons. 2 6N.N.C At oral argument 2 6 N.N.C. 623 provdes: Wthout excepton all property ncludng funds acqured or held by the Authorty pursuant to ths subchapter shall be exempt from levy and sale by vrtue of any ard all executon and no executon or other judcal process shall ssue aganst the same nor shall any judg~ent aganst the Authorty be a charge or len upon such property. No excepton to ths secton shall be recognzed wthout a specfc reference n any statute ctng ths provson and statng clearly that the excepton S waved. However the provsons ofths secton shall not apply to or lmt the rght of the oblgee to pursue any remedes for the enforcement of any pledge or len gven by the Authorty on ts rents fees or revenues or the rght of the federal government to pursue any remedes conferred upon t pursuant to the provsons of ths subchapter or the rght of the Authorty to brng evcton actons'n accordance wth 616(B)(l8) ofths ttle. 4

5 ;".\ NHA agreed that t could expend funds voluntarly to remedy employment-related ssues through ts nternal grevance process and otherwse could oblgate ts~lf usng any method so long as t s not compelled to do so under a money judgment. t s well wthn NHA's powers pursuant to 6 N.N.C. 616(B)(3) to enter "freely" nto contracts wth "any p~rson." There s no ndcaton that. contracts entered nto by NHA requre mmunty wavers by11 specfc reference to 6 N.N.C nor does the provson so requre. :1 Secondly on October the Navajo 'Naton: Councl amended the NSA to :... '. expressly "affrm" that NHA s wthn the defnton of "Navajo Naton." NHA v. Johns slp op. at 2 (ctng Resoluton CO-55-04(codfed at 1 N.N:C. $52(P)). NHA's argument that ts soveregn mmunty at 6 N.N.C. 623 s unque from that conferred under the NSA and greater than that' of the Navajo Naton s msplaced. Secton 623 s a complex and mult-faceted provson that has been frequently msread and msappled dje to ts multple components and exceptons. As we stated n NHA v. Johns "t has never been" questoned that NHA's mmunty ;. sprngs from herent governmental mmuntes as a publc Hody created to serve 'an essental. '. 11. publc and governmental purpose' n the area of reservaton horsng." NHA v. Johns slp op. at 6 (ctng 6 N.N.C ). The Councl's Ttle 1 amendments n 2004 clarfed and codfed NHA's herent governmental mmunty as part of the ravajo Naton government and furthermore made NHA's scheme of qualfed mmuntes "subject to the [NSA]." 6 N.N.C (B)(1). Ths ncludes the NSA's scheme of exceptolls to mmunty whch expressly provdes that the Navajo Naton may be sued n the Navajo -}Jaton courts "wth respect to any " clam whch s wthn the express coverage and not exclu~ed by ether commercal lablty :1 nsurance carred by the Navajo Naton or an establshed Navajo Naton self-nsured and/or other clams program of the Navajo Naton government." 1 NlN.C. 554(F). NHA's Plan of 5 ~

6 ~ Operatons at 6 N.N.C. 616(B)(10) permts NHA to purchase ~nsurance aganst "any rsk.;' Ths l. ": power for NHA to purchase nsurance aganst "any rsk" s Unqualfed and does not exclude purchase of nsurance aganst NPEA -related rsks.' NHA.' s 'rrtmunty s no less and no greater than that ofthe Navajo Naton. Thrdly n the NPEA the Councl defnes 'the fem "1rhployer" to 'nclude "all persons frms assocatons corporatons and the Navajo' Nator and all of ts agences and nstrumentaltes who engage the servces of a person for co~pensaton whether an employee agent or servant." 15 N.N.C. 603(B). Both before and f~llowng ts specfc ncluson as ' Navajo Naton n 2004 NHA s an "employer" wthn the me$ng of the NPEA whch ncludes all persons frms assocatons corporatons and the Navajo ~aton and all of ts agences and nstrumentaltes. As an employer 15 N.N.C. 609 addresses as a matter of law what must be contaned n NHA's employment-related transactonal documebts wth ts employees namely "a provson pursuant to whch th~ employer and any other contr~ctng party affrmatvely agree to j strctly abde by all requrements of [the NPEA]. Wth respect to any transacton document whch does not contan the foregong provson the terms fd provsons of [the NPEA] are ncorporated theren as a matter of law and the requrements of [the NPEA] shall consttute affrmatve contractual oblgatons of the contractng PartJ. 15 N.N.C. 609(A) (Emphass added). The wordng and effect of ths provson on NHA'sl employment relatonshp wth ts employees coupled wth NHA's power to freely enter contrac~s s plan and unambguous. As a matter of law NHA may not evade ts responsbltes as an e~ployer under the NPEA by falng l to nclude reference to ts NPEA responsbltes n ts lemployment-related transactonal documents. These nclude ts personnel polces manual ru).d any 'contracts for employment 1 ' servces. As a matter of law all requrements of the NPEA ncludng NPEA remedes and 6

7 sanctons are ncorporated nto all such documents. Navajo Naton laws must be read comprehensvely and: n combnaton not pnon pcked :1 for provsons that support a gven poston. NHA v. Johns slp op. at 11; n the Matter offrank l Seanez No. SC-CV slp op. at 10 (Nav. Sup. Ct. Janua~ ). Where a provson s part of such a larger scheme the whole ofthat scheme necessarly fgures n the nterpretaton of that provson. NHA v. Johns slp op. at 11. The NPEA s:: necessarly part of the statutory scheme of NHA n ts role as employer and must be read together wth ts Plan of Operatons. The result may be complex. Our nterpretaton of our statutes. must not negate the complextes found wthn our laws but must attempt to reconcle and gvb force to ther combned general ntent. See e.g. Nelson v. Shrley No. SC-CV-03-1O slp op. at 15 (May )(affrmng that nterpretaton of a statute must not negate the complextes found wthn our Fundamental Laws as understood wthn the context of the Navajo Naton): t s clear that the NPEA apples :: fully n NHA's employer-employee relatonshps and that NHA has the power at 6 N.N.C. 616(B) to purchase nsurance aganst NPEA-related rsks an~ pursue varous other optons n order to make good on ts preference-related promses. The Commsson s faced wth complants seekng r~lef (manly back-pay front-pay renstatement njunctve relef and attorney fees and costs) ut;lder 6 N.N.C. 612(A). We reject NHA's attempt to characterze clamants' requested relef as "monetary clams" prohbted by 6 " " N.N.C. 623 rather than permssble NPEA remedes and s~nctons. We fnd the Commsson has jursdcton to hear NPEA complants aganst the NHAabd to address the remanng ssues n the frst nstance. t also has authorty to mpose remedes and sancton pursuant to the NPEA. Enforcement of any remedal orders may be thereafter pursued n thecourts of the Navajo Naton pursuant to 6 N.N.C. 612(C). 7

8 . Based on the foregong NHA's petton for a wt of prohbton s DENED. The cases. are remanded to the Labor Commsson for t to proceed to a hearng on the merts n each case. ~. ~ Dated th~day ofmay 2015; nunc pro tunc May mcate J. Assoca e Justce 8