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Rules of Appellate Procedure

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The Navajo Rules of Appellate Procedure

These rules became effective April 1, 1978. From 1978 to 1987, criminal and civil appeals were governed by these rules. Criminal appeals are still governed by these rules. See, Lee v. Navajo Nation, 6 Nav. R. 124, 2 Nav. A.R. 79 (Nav. Sup. Ct. 1989). All civil appeals are now governed by the Navajo Rules of Civil Appellate Procedure as of March 1, 1987.

These are unannotated rules. For the annotated rules, see NAVAJO NATION PRACTICE BOOK, Fourth Edition, T&B Publishing.

These rules, adopted by unanimous vote of the District Judges of the Navajo Nation, shall govern the procedures in all cases in the Court of Appeals and shall become effective on April 1, 1978.

2(A)

“Decision,” as used in these rules, shall mean a written disposition of an appeal, including a disposition by opinion, memorandum decision, or order, pursuant to Rule 22.

2(B)

“Judgment,” as used in these rules, shall mean any appealable order, whether denominated an order, a judgment, a decree, or otherwise

2(C)

“Mandate,” as used in these rules, shall mean an order of the Supreme Court to the district court or administrative agency directing certain action to be taken or disposition to be made respecting a case appealed.

2(D)

“Transcript,” as used in these rules, shall mean a reporter’s transcript, a transcription of an electronic recording, a narrative statement of evidence pursuant to Rule 9(c), or an agreed statement pursuant to Rule 9(d).

2(E)

“Upon motion,” as used in these rules, shall mean a motion of a party to the appeal, in accordance with Rule 6(a), and on order of the district court or Supreme Court as the case may be. It shall also include an order of the district court or Supreme Court upon its own motion.

2(F)

“Upon stipulation,” as used in these rules, shall mean a stipulation of the parties to the appeal, and an order of the district court or Supreme Court as the case may be.

Except as otherwise provided in Rule 5(b), the Supreme Court may upon motion for good cause shown suspend the requirements or provisions of any of these rules in a particular case, and may order proceedings in accordance within its discretion. These rules shall be liberally construed in the furtherance of justice.

4(A)

Filings; Form of Papers; Number of Copies. All papers required or permitted to be filed in the Supreme Court shall be filed with the Clerk of the Supreme Court. All papers filed shall be typewritten and double-spaced. Quotations may be single-spaced. The paper must be white, opaque, unglazed, and 8.5 by 11 inches. The papers shall contain a caption setting forth the title of the Navajo Nation Supreme Court, the title of the case, the case number and a brief descriptive title. All filings, except those provided by Rule 9, shall consist of an original and four (4) copies. Filings may be accomplished by certified mail addressed to the Clerk, but filing shall not be timely unless the papers are received and stamped by he Clerk within the time fixed for filing.

4(B)

Service of All Papers Required; Notice by The Court; Manner of Service. Copies of all papers filed by any party shall be served by a party or person acting for him, who is over the age of 18, on all other parties to the appeal at or before the time of filing. This rule shall not apply to the transcript filed pursuant to Rule 9. Service may be personal or by mail. Personal service includes delivery of the copy to counsel, or a clerk, or other responsible person over the age of 18 at the office of counsel. Service by mail is complete on mailing. Service of copies of notices and papers that the Clerk of the Supreme Court must serve on parties to the appeal shall also be made in accordance with the foregoing.

4(C)

Proof of Service. Papers presented for filing shall contain an acknowledgement of service by the person served, or proof of service in the form of a statement of the date and manner of service and of the name of the person served, signed by the person to made service. Proof of service may appeal on or be annexed to the papers filed.

4(D)

Service on Attorney or Guardian Ad Litem; Substitution; Notice. Attorneys and guardians ad litem in the district court or at the administrative hearing will be deemed attorneys and guardians ad litem of the same parties in the Supreme Court until a substitution is made or there has been an appropriate withdrawal. Service of notices, briefs, and all papers shall be made, when appropriate under these rules, on such attorneys or guardians ad litem until a substitution is made and notice thereof given to all other parties.

RULE 1. Title and Scope of Rules

 

These rules shall be known as the Navajo Rules of Civil Appellate Procedure and they shall be cited as N.R.C.A.P. These rules shall govern the procedure in civil appeals to the Navajo Nation Supreme Court. These rules shall become effective on March 1, 1987.

RULE 2. Definitions

2(A)

“Decision,” as used in these rules, shall mean a written disposition of an appeal, including a disposition by opinion, memorandum decision, or order, pursuant to Rule 22.

2(B)

“Judgment,” as used in these rules, shall mean any appealable order, whether denominated an order, a judgment, a decree, or otherwise

2(C)

“Mandate,” as used in these rules, shall mean an order of the Supreme Court to the district court or administrative agency directing certain action to be taken or disposition to be made respecting a case appealed.

2(D)

“Transcript,” as used in these rules, shall mean a reporter’s transcript, a transcription of an electronic recording, a narrative statement of evidence pursuant to Rule 9(c), or an agreed statement pursuant to Rule 9(d).

2(E)

“Upon motion,” as used in these rules, shall mean a motion of a party to the appeal, in accordance with Rule 6(a), and on order of the district court or Supreme Court as the case may be. It shall also include an order of the district court or Supreme Court upon its own motion.

2(F)

“Upon stipulation,” as used in these rules, shall mean a stipulation of the parties to the appeal, and an order of the district court or Supreme Court as the case may be.

RULE 3. Suspension of Rules.

 

Except as otherwise provided in Rule 5(b), the Supreme Court may upon motion for good cause shown suspend the requirements or provisions of any of these rules in a particular case, and may order proceedings in accordance within its discretion. These rules shall be liberally construed in the furtherance of justice.

RULE 4. Filing and Service.

4(A)

Filings; Form of Papers; Number of Copies. All papers required or permitted to be filed in the Supreme Court shall be filed with the Clerk of the Supreme Court. All papers filed shall be typewritten and double-spaced. Quotations may be single-spaced. The paper must be white, opaque, unglazed, and 8.5 by 11 inches. The papers shall contain a caption setting forth the title of the Navajo Nation Supreme Court, the title of the case, the case number and a brief descriptive title. All filings, except those provided by Rule 9, shall consist of an original and four (4) copies. Filings may be accomplished by certified mail addressed to the Clerk, but filing shall not be timely unless the papers are received and stamped by he Clerk within the time fixed for filing.

4(B)

Service of All Papers Required; Notice by The Court; Manner of Service. Copies of all papers filed by any party shall be served by a party or person acting for him, who is over the age of 18, on all other parties to the appeal at or before the time of filing. This rule shall not apply to the transcript filed pursuant to Rule 9. Service may be personal or by mail. Personal service includes delivery of the copy to counsel, or a clerk, or other responsible person over the age of 18 at the office of counsel. Service by mail is complete on mailing. Service of copies of notices and papers that the Clerk of the Supreme Court must serve on parties to the appeal shall also be made in accordance with the foregoing.

4(C)

Proof of Service. Papers presented for filing shall contain an acknowledgement of service by the person served, or proof of service in the form of a statement of the date and manner of service and of the name of the person served, signed by the person to made service. Proof of service may appeal on or be annexed to the papers filed.

4(D)

Service on Attorney or Guardian Ad Litem; Substitution; Notice. Attorneys and guardians ad litem in the district court or at the administrative hearing will be deemed attorneys and guardians ad litem of the same parties in the Supreme Court until a substitution is made or there has been an appropriate withdrawal. Service of notices, briefs, and all papers shall be made, when appropriate under these rules, on such attorneys or guardians ad litem until a substitution is made and notice thereof given to all other parties.

RULE 5. Computation; Shortening or Extension of Time.

5(A)

Computation of Time. In computing any limits required by these rules, or by order of the Supreme Court, or by any applicable law, the day of the act, event, or judgment shall not be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or court holiday, in which case the period shall extend to the end of the next business day which is not a Saturday, Sunday, or court holiday.

5(B)

Shortening or Extension of Time. The time for doing any of the acts provided for in these rules, or by order of the Supreme Court, or by any applicable statute, may be shortened or extended upon stipulation and approval by the Supreme Court, or upon written motion for good cause shown, but the Supreme Court may not shorten or extend the time for filing a Notice of Appeal.

5(C)

Additional Time After Service by Mail. Whenever a party is required or permitted to do an act within a prescribed period after the filing of a paper and the paper is served on the party by mail, seven (7) days shall be added to the prescribed period.

Note: When the N.R.C.A.P. Rule 9(a)(2) time limit passes without a transcript having been filed and without an extension request made to the district court, N.R.C.A.P. Rule 5(b) is available to the appellant to ask this Court, upon a showing of good cause, to shorten or extend the time for filing the record; However, "good cause" does not mean addressing a matter that has previously been, or should have been, brought to the attention of the lower court. Rule 5(b) is not to be used to skirt the Rule 9(a)(2) authority of the district court. NHA v. Dennison, No. SC-CV-04-12 (Apr. 20, 2012).

6(A)

 (1)

Content of Motions; Response; Reply. An application for an order or other relief shall be made by filing a written motion. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall specifically state the grounds on which it is based, and shall set forth the order or relief sought. Any party may file a response to a motion within 20 days after service of the motion. The moving party may file a reply memorandum within 10 days after service of the response. The reply memorandum shall be confined strictly to rebuttal of points argued in the response to the motion.

6(A)

(2)

 Motion Papers Requiring Supporting Affidavits or Other Evidence. Motion papers that rely on facts not apparent in the record, and of which the Supreme Court cannot take judicial notice, shall be supported by affidavit or other satisfactory evidence.

6(B)

 Motions for Procedural Orders. Notwithstanding the preceding subdivisions, motions for procedural orders may be acted upon at any time, without awaiting a response thereto. Any such motion must contain an affidavit containing the following:

 

(1)

The reason why the motion constitutes a motion for procedural order and can be acted upon without a response; and

 

(2)

A description of all efforts to secure a stipulation from adverse counsel and the reasons why the stipulation has no been obtained.

7(A)

Filing the Notice of Appeal. All appeals shall originate by filing a written Notice of Appeal with the Clerk of the Supreme Court. A certified copy of the judgment, order, or administrative decision being appealed, signed by the judge or hearing officer and dated, must be attached to the notice of Appeal, and the filing fee must be paid at the time of filing.

7(B)

Filing Fee. The Clerk shall not accept any appeal for filing and no appeal shall be considered filed until the filing fee has been paid and a copy of the final judgment has been attached. Filing fees shall be established by the Supreme Court and become effective upon thirty (30) days notice to the public.

Note: In Thomas-Pittman v. Navajo Nation, No. SC-CV-56-11 (Nav. Sup. Ct. Dec. 14, 2011) the Supreme Court emphasized that the filing fee is jurisdictional and may be waived only where required under the Navajo Nation Bill of Rights

7(C)

Content of the Notice of Appeal. The Notice of Appeal shall state the title of the Navajo Nation Supreme Court and of the action; shall specify the party or parties taking the appeal; shall designate the judgment or part thereof appealed from; shall name the court or administrative agency from which the appeal is taken; and shall be signed by the attorney, or if the party is not represented by an attorney, then by the party taking the appeal. (The Notice of Appeal shall conform to Form 1 below).
 

Form 1. Notice of Appeal.
If the appeal is from the entire judgment, the following form is recommended:
IN THE SUPREME COURT OF THE NAVAJO NATION
Appellant or Petitioner,          No.:_________
vs.
Appellee or Respondent.
Notice is hereby given that the above named ____________ appeals to the Supreme Court of the Navajo Nation from the judgment entered in this action by the (name of Court or Agency) on the ____ day of _______, (year).

 

_______________________
Name of Attorney (or Party taking Appeal if not represented by Attorney

If the appeal is from part of the judgment, the following form is recommended:
IN THE SUPREME COURT OF THE NAVAJO NATION
Appellant or Petitioner,          No.:_________
vs.
Appellee or Respondent.
Notice is hereby given that the above named ____________ appeals to the Supreme Court of the Navajo Nation from the following part of the judgment entered by the (name of Court or Agency) on the ____ day of _______, (year):
[Specify the part of the Judgment appealed from here.]

 

_______________________
Name of Attorney (or Party taking Appeal if not represented by Attorney

Note: See Rule 24 of these Rules for separate caption requirements in appeals from Navajo Nation Children's Code judgments of the Navajo Nation Family Court.

7(D)

Service of the Notice of Appeal. The Notice of Appeal and any motions or other papers filed in support of an appeal shall be served in accordance with Rule 4(b). Service shall be sufficient notwithstanding the death of a party or his counsel.

7(E)

Filing of Notice of Appeal with the District Court or Administrative Agency. The appellate shall file a copy of the Notice of Appeal with the district court or administrative agency and shall have this copy dated by the district court clerk or the administrative agency. The district court or administrative agency shall be notified of the appeal in the above manner not later than the same day the Notice of Appeal is filed with the Supreme Court

8(A) Time; Personal Representatives; Cross-Appeal. The Notice of Appeal required by Rule 7 shall be filed not later than thirty (30) days after the entry of the judgment from which the appeal is taken, unless a different time is provided by law. If a party dies during the time he is entitled to take an appeal, the appeal may be taken by his personal representative within 90 days after the death of the party. A notice of cross-appeal may be filed by an opposing party within 20 days from the date the Notice of Appeal is filed.

Note: See Rule 23 of these Rules for the 5-day time limit for fulfilling bond requirement in appeals from forcible entry and detainer proceedings.

8(B)

Extension of Appeal Time. When any of the following motions are timely filed, the time for appeal is extended, and the times set forth in Rule 8(a) shall be computed from the entry of any of the following orders:
  (1) Granting or denying a motion for judgment notwithstanding the verdict.
  (2) Granting or denying a motion to amend or make additional findings of fact whether or not granting the motion would alter the judgment.
  (3) Granting or denying a motion to alter or amend the judgment.
  (4) Denying a motion for new trial. If more than one of the foregoing motions is timely filed, the expiration of the time for appeal is to be computed from the date of the entry of the order which disposes of the last remaining motion. When a motion to amend or make additional findings of fact is granted, the time does not begin to run until the amendment or addition has been accomplished by court order. The same applies also to the granting of a motion to alter or amend the judgment. For the purposes of this subdivision, entry of an order occurs when the judge or hearing officer signs and dates the order.

(A)

As soon as the copy of the Notice of Appeal has been filed with the district court and a stay of execution granted or denied, the clerk of the District Court shall forward to the clerk of the Court of Appeals a record of the case consisting of the following:
 

1)

The case file, containing all original papers filed and orders entered in the case and the electronic recordings of the proceedings,
 

2)

A written transcript, only if requested by the Clerk of the Court of Appeals,
 

3)

The certificate of the district court clerk that the file (and transcript, if applicable) is complete and accurate,
 

4)

The order granting the stay of execution and setting conditions, if any, or the order denying the stay.

(B)

When an appeal has been decided, the Clerk of the Court of Appeals shall return the District Court file as provided in Rule 11.

(A)

The Chief Justice may disqualify himself on motion of one of the parties or on his own motion. When the Chief Justice disqualifies himself, the Acting Chief Justice shall preside over the case.

(B)

The hearing of all appeals shall be in open court before a panel consisting of the Chief Justice and two associate justices named by the Chief Justice. No judge who heard a case on the merits in the District Court shall be named to hear an appeal of the same case. All trials de novo shall be without a jury.

(C)

If either party fails to appear at the time set for the hearing of the appeal, the Court may hear the evidence or the argument presented by the party so appearing and decide the appeal on the basis of such presentation and the briefs submitted.

(D)

If both parties or their counsel so stipulate, the Court may decide the appeal on the basis of the briefs alone.

The Court of Appeals shall render its decision in writing within thirty days of the date of oral argument or entry of stipulations pursuant to Rule 10. Such written decision shall constitute the final judgment of the Court. When a case is reversed or remanded with directions, the written decision of the Court of Appeals shall constitute a mandate to the district court to carry out the judgment of the Court of Appeals.

The Clerk of the Court of Appeals shall mail or deliver to the District Court clerk a certified cop of the Court’s decision along with the District Court’s case file.

The judgment of the Court of Appeals shall be filed as of the date it is given. Any motion for rehearing, motion for clemency or other motion or petition filed after the Court of Appeals has given its judgment shall be allowed only upon consideration by a panel of three judges. When any such motion or petition is filed, the Chief Justice may deny it or if he considers it of sufficient importance, he may set it for hearing. Any such motion or petition shall be regularly scheduled for a hearing at which both the appellant and respondent have been notified and are represented. No single judge shall have any authority to modify the judgment or to order any temporary stay of execution.

No trial de novo shall be allowed on an appeal from a judgment entered on a plea of “guilty”. If a defendant pleads “guilty” and afterwards believes the plea was by mistake, he may apply to the District Court for permission to change his plea to “not guilty” and have a trial on the issues in the district court. If the District Court denies the motion to change the plea, the order denying the motion may be appealed to the Court of Appeals. Also, an appeal may be taken after a plea of guilty and a judgment and sentence on the plea under Rule 5 on a question of law as to the legality of the sentence or judgment, provided that the defendant has first applied to the District Court to correct the judgment or sentence as provided in Rule 5(d).

(A)

The Court of Appeals will take original jurisdiction in a habeas corpus proceeding if necessary. The writ of habeas corpus will be denied if there is an adequate remedy by appeal or if there is an adequate remedy by motion in the District Court or habeas corpus in the District Court.

(B)

An action of habeas corpus shall be commenced by filing a petition for a writ of habeas corpus with the clerk. If the petition is in proper form, the Chief Justice shall then sign and issue the writ of habeas corpus directing the person having custody of the person detained to appear in the Court of Appeals on a certain date and bring the detained person with him and show cause why the person should not be released.

(C)

The return date on the writ of habeas corpus shall be given priority on the Appeals Court docket and the case shall be set for hearing for as early a date as possible. The person holding custody shall be served with the writ by the Navajo Police, or the Chief Justice may appoint some person not a party to the case to make immediate service. The clerk shall notify the petitioner of the date set for hearing.

(D)

All habeas corpus proceedings in the Court of Appeals shall be heard by the Chief Justice and two associate justices. Neither the Chief Justice nor any other Justice shall sign an order releasing the person being held prior to a hearing on the writ.

The Clerk of the Court of Appeals shall keep a file of all opinions of the Court of Appeals and such opinions shall be published or otherwise made available to the trial judges and to all counselors and advocates practicing before the Navajo courts and shall constitute the case law for the Navajo Nation.

The cost of providing the written opinions shall be borne by the person requesting the opinions except that no charge will be made to any personnel of the Judicial Branch of the Navajo Nation.

The Court of Appeals will take original jurisdiction in proceedings for a writ of mandamus or a writ o[f] prohibition or in other special proceedings only when it appears that no remedy is available from a District Court.

All requests for appeal, petitions, motions, stipulations, orders and other actions taken by or before the Court of Appeals must be in writing and properly dated and signed, except motions, stipulations, and orders made during a hearing or trial.

In any proceeding the Court may, in its discretion, direct the counsel for the parties to appear before the Court for a conference prior to the trial date to consider:

(A)

Simplifying the issues.

(B)

Amending the complaint or answer to make a clearer statement of the case.

(C)

The possibility of getting either side [to] admit facts or documents which will avoid unnecessary proof.

(D)

The possible limitations of the number of witnesses covering the same facts.

(E)

The issues or points of law which are to be considered.

The pre-trial conference shall be with the Chief Justice.

The Chief Justice may, in his discretion, require the counsel to prepare and present a pre-trial order covering the matters agreed upon at the pre-trial conference.

Whenever counsel has once filed papers in an appeal, such counsel shall not be allowed to withdraw from the appeal except by order of the Chief Justice upon written motion stating good cause and naming new counsel.

In computing any time limits required by these rules, by order of the Court of Appeals, or by any applicable law, the day of the act, event, or judgment shall not be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or court holiday, in which case the period shall extend to the end of the next day which is not a Saturday, Sunday, or court holiday.