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  • 8/10/2019 Petition for clarifying opinion

    1/23

    Petitioners,

    v

    Navajo Board o Election Supervisors

    And the

    Navajo Election Administration,

    Respondents,

    And Concerning,

    Christopher C. Deschene,

    Real Party in Interest.

    PETITION FOR CLARIFYING OPINION

    COUNSEL:

    Bidtah N. Becker, Assistant Attorney General

    Rodgerick T. Begay, Assistant Attorney General

    Kandis Martine, Assistant Attorney General

    Stanley

    M

    Pollack, Assistant Attorney General

    Paul Spruhan, Assistant Attorney General

    NAVAJO NATION DEPARTMENT

    OF

    JUSTICE

    Post Office Box 2010

    Window Rock, Arizona 86515-2010

    Telephone: 928) 871-6937

    Telefax: 928) 871-6177

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    The Department of Justice (DOJ) files this Petition for a Clarifying Opinion to determine

    who legally holds the presidency on January

    13 2 l5?

    In support of its request, DOJ states the

    following.

    I ST TEMENT OF

    FACTS

    The relevant facts are undisputed and subject

    to

    this Court's judicial notice. The primary

    election for Navajo Nation President was held on August 26, 2014. The two candidates

    receiving the highest votes were Dr. Joe Shirley, Jr. and Chris Deschene. Before the general

    election could be held, presidential candidates Dale Tsosie and Hank Whitethorne challenged

    Deschene's qualifications based on his lack of Navajo fluency. The Office of Hearings and

    Appeals (OHA) disqualified Deschene by default on October 9 2014, and this Court dismissed

    Deschene's appeal on October 21, 2014. Tsosie v Deschene No. SC-CV-69-14 (Order

    of

    Dismissal) (October 21,2014).

    Based on Deschene's disqualification this Court ordered the Navajo Election

    Administration to comply with 11 N.N.C. 44 and to reprint the ballots for the presidential

    election.

    Tsosie v Navajo

    d of

    Election Supervisors

    No. SC-CV-68-14, slip op. at 10 (October

    23,2014). The result was that third-place candidate Russell Begaye was to be on the new ballot.

    On November 4 2014, this Court ordered the Navajo Election Administration to hold a special

    election within sixty days of that date.

    Tsosie

    v.

    Navajo

    d of

    Election Supervisors

    No. SC

    This Petition is filed on behalf

    of

    DOJ by all the Assistant Attorneys General, as the Attorney

    General and Deputy Attorney General have recused themselves from this matter and have

    delegated their authority to the AAGs.

    See

    Memorandum

    of

    Attorney General Harrison Tsosie,

    January 6 2015, Exhibit A.

    2 DOJ files its request under Case Number SC-CV-68-14 because the Court's last order

    concerning the date

    of

    the election for President was filed under this number. See Order,

    December 17 2014. As discussed more fully below, the Order required the election to be held

    on or before January 31, 2015. Id

    As

    that time period has not expired, that order is still in effect,

    and therefore the issue of the presidential election is still a live issue in this case.

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    CV-68-14, slip op. at 1 (November 4,2010).

    Before the election could be held, another presidential candidate, Myron McLaughlin,

    challenged Russell Begaye's qualifications. OHA ruled Begaye was qualified on November 24,

    2014, and McLaughlin appealed. On December 16,2014, this Court by memorandum decision

    upheld OHA's ruling on different grounds, thereby upholding Begaye's candidacy.

    McLaughlin

    v Begaye No. SC-CV-80-14 (December 16,2014).

    While the Begaye case was going forward, the Navajo Election Administration filed a

    request with this Court

    to

    extend the general election beyond the sixty day deadline established

    in its prior order, to up to sixty days after all challenges to Begaye's candidacy were resolved.

    See

    Motion for Leave

    to

    Extend Postponed Presidential Election Beyond 60-Day Statutory

    Period (December 13, 2014). This Court granted the request, but required NEA to hold the

    election no later than January 31, 201[5].

    Tsosie

    No. SC-CV-68-14 (Order) (December 17,

    2014). As

    o

    this filing, the Election Administration has not officially scheduled a special

    election before that date.

    t

    is clear that no election will held before Tuesday, January 13,2015.

    Under the Navajo Election Code, the newly elected President and Vice-President are to

    be installed in office at noon on the second Tuesday after the first Monday

    o January following

    their election and their predecessors' term o office shall expire upon their installation in office.

    11 N.N.C. 6(B) (2005). In this case, the predecessor's term should expire on January 13,2015;

    however, as the election will not be held before January 13, 2015, there will be no elected

    President to install.

    Based on this conundrum, the Speaker Pro Tern o the Navajo Nation Council and the

    President separately requested advice from DOJ on its views on what Navajo Nation law requires

    to

    happen

    i

    there is no elected President to swear in. DOJ issued a Memorandum to both the

    2

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    President and the Speaker Pro Tern on December 15, 2014, interpreting the Election Code to

    authorize the current President to hold over as President until a new President is elected by the

    Navajo People and sworn into office. DOJ Memorandum, December 15, 2014, Exhibit

    B.

    On

    December 22, 2014, the Office

    of

    Legislative Counsel issued its own opinion, concluding that

    the Election Code authorizes the Council to select a Speaker Pro Tern

    on

    January 13, who will be

    appointed the President until a Speaker is selected at the first regular session of the Council.

    Opinion

    of

    Chief Legislative Counsel, December 22,2014, Exhibit C. According to the opinion,

    after the Speaker is elected, that person will then be President until an elected President is sworn

    m.

    Id

    As a result

    of

    this legal impasse, DOJ met with legal counsel for the President and the

    Chief Legislative Counsel to facilitate a resolution that would avoid potentially two individuals

    claiming to be President on January 13.

    DOJ was not successful, and upon information and

    belief, there will be two individuals claiming to be President on January 13: the current President

    and whomever the Council selects as Speaker Pro Tern.

    II. A

    CLARIFYING OPINION

    IS

    NECESSARY

    AND

    PROPER UNDER THESE

    UNIQUE CIRCUMSTANCES

    Based on the potential chaos that may arise on January 13, and in the absence

    of

    an

    agreement between the President and Council, DOJ believes this Court should issue a clarifying

    opinion on who should act as President pending the swearing in

    of

    the new President. Such

    opinion is necessary to ensure the continued functioning of the Government.

    a. A clarifying opinion should

    be

    issued in

    the most extreme

    exigent circumstances

    when

    there is an actual threat to the very stability of the Navajo Nation

    government and when

    no factual disputes are necessary to resolve.

    The concept

    of

    a "clarifying opinion" arose from two unique situations involving the

    Office

    of

    the President and the Navajo Nation Council that threatened to destroy the structure

    of

    3

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    the three branch government. See Office of the Navajo Nation President nd

    ice

    President

    v.

    Navajo Nation Council Shirley v. Morgan),

    No. SC-CV-02-10, slip op. at 29 (Nav. Sup. Ct.

    June 2, 2010); Nelson v. Initiative Committee to Reduce Navajo Nation Council, No. SC-CV-03

    10, slip op. at 13-14 (Nav. Sup. Ct. June 2, 2010). Under those circumstances, this Court

    recognized its authority to render opinions on issues related to pending litigation, but not

    necessary to resolve in the parties' specific dispute as presented to the Court.

    See Shirley,

    at 29

    (deciding appropriateness of Council placing President on leave);

    Nelson,

    slip op. at 13-14

    (deciding legality of initiative to reduce size of Navajo Nation Council though underlying

    challenge was properly dismissed by Office

    of

    Hearings and Appeals).

    t

    also stated five broad

    guidelines under which it will consider whether to issue a clarifying opinion:

    1. A clarifying opinion may be issued sua sponte or at the request of a party;

    2. The opinion may be made only in connection with a present suit for declaratory or

    injunctive relief;

    3. There is an allegation of a future injury;

    4.

    The clarifying opinion is needed in order that finality may be achieved in the matter

    before the Court; and

    5. There is reasonable apprehension of an imminent suit in which large costs may be

    incurred and which impacts the public welfare.

    Id.

    In

    DOl s view, in addition to the five previously announced guidelines, clarifying

    opinions should only be issued in the most extreme exigent circumstances when there is an

    actual threat to the very stability

    of

    the Navajo Nation government, as in

    Shirley

    and

    Nelson.

    3

    A

    clarifying opinion also should only be considered when there are no factual findings necessary

    and this Court is only issuing an opinion as a matter

    of

    law.

    3 The fifth element listed by the Court in Shirley does include a consideration of whether an

    imminent lawsuit will impact the public welfare.

    Shirley,

    No. SC-CV-02-1O, slip op. at 29.

    DOJ believes that the additional requirement of an actual threat to the very stability of the

    Navajo government more fully fleshes out the extreme circumstances required for this Court to

    issue a clarifying opinion.

    4

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    Such additional limitations reflect the need for orderly resolution

    of

    cases within the

    Navajo judicial system and clear allocation of responsibilities between the trial courts and the

    Supreme Court.

    h Under those guidelines the present situation requires a clarifying opinion.

    The present case clearly fits the above guidelines. Upon information and belief,

    President Shelly intends

    to

    continue

    to

    act as President based on

    DOl s

    Memorandum, while the

    Council intends to hold a special session on January 13 and name a Speaker Pro Tern

    to

    act as

    President based on the Office of Legislative Counsel s Opinion. Therefore, absent an agreement,

    there

    is

    a real possibility that two individuals will claim to be President on January 13 causing

    disharmony and disruption to the Navajo Government and its People.

    DOJ is mindful

    of

    the role previously played by this Court in litigation to resolve the

    question of whether a Chairman placed on administrative leave or the Interim Chairman

    designated by the Navajo Tribal Council was vested with the executive authority vested in the

    Office

    of

    the Chairman

    of

    the Navajo Government.

    See In re Certified Questions 1 6

    Nav.

    R

    97

    (1989) and

    n re Certified Questions 11 6

    Nav.

    R

    105 (1989). Those decisions helped to restore

    harmony within the Navajo Government and the Navajo Nation during a most difficult time. In

    order

    to

    avoid a repeat

    of

    the events

    of

    1989 where two different Navajo leaders purported

    to

    act

    as the chief executive officer of the Navajo Government, DOJ believes a clarifying opinion in

    this instance is necessary and proper.

    However this Court decides the question, resolution is essential to prevent potential chaos

    on January 13 2015. DOJ attaches its Memorandum and the Office of Legislative Counsel s

    Opinion for the Court s review. Based on those views, or its own view, the Court should resolve

    the matter and advise the President and the Council what Navajo law states should happen under

    5

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    these unique circumstances where there will not be a President sworn in

    on

    January 13,2015.

    Respectfully submitted this 7th day

    o

    January, 2015.

    Bidtah N. Becker, Assistant Attorney General

    Stanley M. Pollack, Assistan Attorney General

    NAVAJO NATION DEPARTMENT

    O

    JUSTICE

    Post Office Box 2010

    Window Rock, Arizona 86515-2010

    Telephone: (928) 871-6937

    Telefax: (928) 871-6177

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    CERTIFICATE OF SERVICE

    I hereby certify that on January 7, 2015, the original

    o

    this PETITION FOR

    CLARIFYING OPINION was filed by hand-delivery to:

    Clerk

    o

    the Court

    Navajo Nation Supreme Court

    Window Rock Navajo Nation) Arizona 86515

    and a copy

    o

    the foregoing was emailed and mailed by U.S.P.S. 1

    st

    class mail to:

    David R Jordan, Esq.

    The Law Offices o David R Jordan, P.C.

    Post Office Box 840

    Gallup, New Mexico 87305-0840

    Email: [email protected]. rhonda@jordanlegaLcom

    Justin Jones, Esq.

    The Law Offices o Justin Jones, P.C.

    Post Office Box 2240

    Farmington, NM 87499

    Email: [email protected]

    Edward

    J

    Hermes, Esq.

    Quarles Brady LLP

    Renaissance One

    Two North Central Avenue

    Phoenix, Arizona 85004-2391

    Email: [email protected]

    and a copy o the foregoing was emailed and/or hand-delivered to:

    Levon B. Henry, Chief Legislative Counsel

    Office

    o

    Legislative Counsel

    Window Rock Navajo Nation) Arizona 86515

    Email: [email protected]

    Ron Haven, Attorney

    Office

    o

    Legislative Counsel

    Window Rock Navajo Nation) Arizona 86515

    By:

    Cece la Thomas, Legal Secretary

    Nava 0 N tion Department

    o

    Justice

    7

    mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]
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    xhibit

    A

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    DANA BOBROFF

    DEPUTY

    ATTORNEY

    GENERAL

    MEMORANDUM

    TO:

    Bidtah Becker, Assistant Attorney General, NRU

    Rodgerick Begay, Assistant Attorney General, ECDU

    Kandis Martine, Assistant Attorney General, HSGU

    Stanley Pollack, Assistant Attorney General, WRU

    Paul Spruhan, Assistant Attorney General, LEU

    Navajo Nation Department of Justice

    FROM:

    ~ z ~

    a1TlSOIlTSOSiettornly General

    Office of the Attorney General

    'Dana Bobroff, Deputy Ato11le)1GeIle;al

    Office of the Attorney General

    DATE: January

    6

    2015

    SUBJECT:

    DELEGATION OF AUTHORITY TO ISSUE ATTORNEY GENERAL

    OPINION AND TAKE OTHER NECESSARY ACTIONS

    As you are aware, the Department of Justice ("DOJ") and Office ofLegislative

    Counsel ("OLC") have issued conflicting advisory memoranda concerning the question ofwho

    will occupy the office and exercise the authorities of the Navajo Nation president on January 13,

    2015 due to the fact that there is not and will not be a President-elect to take office on that date.

    Both advisory memoranda are attached to this memorandum. Because the Attorney General and

    Deputy Attorney General serve "for a term concurrent with the term of the President", 2 N.N.C.

    1962 (B), Assistant Attorney General's ("AAG") Rodgerick Begay and Paul Spruhan were

    delegated authority to issue

    DOJ's

    position

    on

    this matter. This delegation (attached) was

    deemed necessary to avoid any perception of

    bias.

    Regrettably, the issue

    ofwho will occupy the office and exercise the authorities of

    the Navajo Nation president

    on

    January 13,2015 has not been resolved. The issue has both

    direct and collateral effects on the operation of government programs and the authorities and

    responsibilities

    of

    government employees and officials, as well as the general stability

    of

    the

    government.

    P.O. Box 2010 Window Rock

    AZ

    86515 928)871-6345 FAX No. 928)871-6177

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    Memo

    toAssistantAttorneysGeneral,NNDOJ

    RE:

    DELEGATIONOF AUTHORITYTO ISSUE

    ATTORNEY

    GENERALOPINIONAND

    TAKE OTHER

    NECESSARY ACTIONS

    January 6 2015

    Page2

    Under2N.N.C.1963(I),theAttorneyGeneralhastheauthorityto"[d]elegate

    authoritytomembersof hisor herstaff." Pursuanttothisauthority, you,asagroup,arehereby

    delegatedanyandal12N.N.C.

    1963

    (B)&

    (F),

    1964(E)

    &

    (F)and

    1965(A)authorities

    of

    theAttorneyGeneralandDeputyAttorneyGeneraltotakewhateveractionsyou jointly and

    collectively deemnecessarytofacilitateresolution

    of

    notonlywhowilloccupytheofficeand

    exercisetheauthoritiesof theNavajoNationpresidentonJanuary13,2015,butanyquestions

    concerningtheauthoritiesandresponsibilities ofgovernmentemployeesandofficialsandthe

    operationof governmentprograms. Thisdelegationistoaddresstheissuessetforthaboveand

    specificallymayinclude,butisnotlimitedto,theissuance of anofficialOpinionof theAttorney

    Generalpursuantto2

    N.N.C.

    1965,thedefenseorinitiationoflegalactionandthe

    compromise

    or

    settlementof anylegalactionor

    claim

    pursuantto2N.N.C. 1964

    (F).

    Thisdelegationonly

    u t o ~ s

    actionsthatareagreedtoandsignedby llfive

    (5)

    of

    theAAGstowhomthismemorandumisaddressed. Whilethegroupiscertainly

    authorizedtodesignateaspokespersontomeetwithofficials,leadcounselto addressthecourt

    andsimilarmatters,individualAAGsarenotauthorizedtodesignatesomeonetoact n their

    placeonthesespecificmatters.

    TheAttorneyGeneralandDeputyAttorneyGeneralshouldbecopiedonall

    formalactionstakenpursuanttothisdelegation,butshould not beconsultedinadvance.

    Thankyou

    n

    advanceforyourcooperationinthisimportantmatter. Asagroup,

    youhavemorethanseventyfive(15)years

    of

    legalexperienceworkingonissuesaffectingthe

    NavajoNationandweareconfidentthattheoverallinterests of theNationwillbe exceedingly

    wellrepresented

    on

    thecomplexandchallengingissues identifiedabove. .

    Attachments

    xc: BenShelly,President

    TheNavajoNation

    LorenzoBates,SpeakerProTern

    TheNavajoNationCouncil

    HeatherClah,Attorney

    CarolynDrouin,LegalCounsel

    Officeof thePresidentIVicePresident

    LevonHenry, hiefLegislativeCounsel

    Office

    of

    theSpeaker

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    xhibit

    B

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    N V JO N TION DEP RTMENT O JUSTICE

    OFFICE OF THE

    A

    TTORNEY GENER L

    HARRISON TSOSIE

    DANA L BOBR

    Attorney General

    Deputy Attorney Gen

    MEMORANDUM

    TO: HonorableBenShelly,President

    TheNavajoNation

    HonorableLorenzo

    C. Bates,SpeakerProTempore

    22

    n

    NavajoNationCouncil

    FROM:

    DATE:

    SUBJECT:

    In the event that a Navajo Nation President cannot be sworn into office on

    January

    13

    2015,maythe current Presidentcontinuein officeuntil anewPresident is elected

    andswornintooffice?

    ShortAnswer

    Yes, pursuantto

    11

    N.N.C. 6(B),theNavajoNationPresidentmaycontinue in

    office becausethe currentPresident's termends whenanewly electedPresidentissworninto

    office.

    Theterms

    of

    theAttorney GeneralandDeputyAttorneyGeneralrun consistentlywith theterm

    of

    thePresident.

    Therefore,inorderto avoidtheslightestperceptionof bias,thesignatorieswereempoweredtoissuethisOpinionon

    behalfof theNavajoNationDepartmentof Justice(DOJ). Three(3)otherDOJattorneysassistedin thediscussions

    anddrafting

    of

    thisOpinion.

    P.O. Box 2010 Window Rock. Navajo Nation AZ) 86515928-871-6937Fax No. 928-871-6177

    December15,2014

    President

    Shelly'sPresidentialTerm

    I

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    .

    Memorandum to President Ben Shelly and Pro Tempore Speaker Lorenzo Bates

    RE:

    President Shelly's Presidential Term

    December 15, 2014

    Page

    2

    of 5

    In

    2014, our Nation witnessed an unprecedented event: after the Presidential

    primary and prior to the general election, Presidential candidate Deschene was disqualified?

    Thereafter, in two separate Navajo Nation Supreme Court ("Court") Opinions, the Court ordered

    the postponement of the General Election.

    3

    However, in an attempt to keep Chris Deschene on

    the ballot, the Navajo Nation Council passed a resolution

    4

    which was subsequently vetoed by our

    President.

    5

    In accordance with the Court's Order and II N.N.C. 44, Presidential Candidate

    Begaye who received the next highest number of votes, is supposed to be placed on the ballot.

    However, an election grievance was filed against Russell 8egaye and the Office of Hearings and

    Appeals (OHA) did not issue a decision favoring 8egaye until November 24, 2014. On

    December 3, 2012, the Petitioner who filed against Candidate

    8egaye

    filed a Notice

    of

    Appeal

    with the Navajo Nation Supreme Court.

    At this point, it seems inevitable that a Presidential election will not be held on or

    before January 3, 2015.

    6

    The possibility that a Presidential election will not be held is

    problematic

    in

    light of the fact that, pursuant to

    11

    N.N.C. 6(8), the sitting President's term

    expires on January 13, 2015 when a newly-elected President is supposed to be sworn into office.

    Discussion

    At the outset, it must be stated that the Navajo Nation Code does not provide any

    statutory provision(s) that specifically applies to the unprecedented events concerning the 2014

    Presidential general election. This Opinion sets out a reasonable interpretation of applicable

    statutory provisions to the unique circumstances stated above.

    11

    N.N.C. 6 8) states:

    2 See Order

    of

    the Office

    of

    Hearings and Appeals dated October

    9,

    2014 and Navajo Nation Supreme Court

    Opinion, Tsosie

    and

    Whitethorne v Navajo Board

    o f

    Election Supervisors No. SC-CV-68-14, slip op. at 10 (Nav.

    Sup. Ct. October 23, 2014).

    3 Tsosie and Whitethorne

    v

    Navajo oard ofElection Supervisors No. SC-CV-68-14, slip op. at 10 (Nav. Sup. Ct.

    October 23,2014); See also,

    Tsosie

    and

    Whitethorne

    v

    Navajo Board

    of

    Election Supervisors

    No. SC-CV-68-14,

    slip op. at 10 (Nav. Sup. Ct. November 4,2014), wherein the Court required the postponement to be "within 60 days

    of

    November 4,2014."

    4

    CO-47-14.

    5 Veto memorandum dated October 28,2014. The Navajo Nation Council failed to override the President's veto on

    November 13,2014.

    6 This

    is

    because the Navajo Election Administration will need time to print ballots and plan for early voting,

    absentee voting, etc.

    t also seems elementary that the People's choice for Navajo Nation President should not be

    rushed in less than a month's time frame.

    P.O. Box 2010. Window Rock. Navajo Nation AZ) 86515.928-871-6937. Fax No. 928-871-6177

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    Memorandum to President

    Ben

    Shelly and Pro Tempore Speaker Lorenzo Bates

    RE: President Shelly's Presidential Term

    December 15,2014

    Page 3 ors

    At each general election all persons elected to the offices of

    President

    of the

    Navajo Nation, Vice-President

    of

    the Navajo

    Nation and Delegate of the NavD:io Nation Council shall be

    installed

    in

    oftice at noon on the second Tuesday alter the tirst

    Monday

    of

    January following their election and their predecessors'

    term

    of office shall expire upon their installment in office.

    This section

    is

    the only provision in the Code which speaks directly to the

    expiration of a predecessor's term of office. Other statutory provisions address a Presidential

    term only in a general sense.

    7

    A reasonable interpretation

    of

    section

    6 8)

    is that the expiration

    of

    a predecessor's term

    of

    office is conditioned upon two things: I) a general election must occur

    whereby a new President is elected; and 2) the new President is installed when he or she takes

    the Oath

    of

    Office. The statute indicates that the Oath

    of

    Office is taken on the second Tuesday

    after the first Monday

    of

    January, which

    in

    our case is January

    13,

    2015. However, because a

    Presidential election will not likely

    be

    held before that date, there would

    be no

    President to take

    the Oath of Office. With both preconditions being absent, the Presidential predecessor's term

    cannot expire on January 13, 2015.

    In

    most jurisdictions, the extra period

    is

    considered a hold

    over period, and apart from any constitutional or statutory regulation on the subject, an

    incumbent of an office may hold over after the conclusion of his or her term until

    the election

    and qualification ofa successor. g In

    other words, President Shelly's term, as predecessor, will

    not expire until an election is held and a newly elected President takes the Oath

    of

    Office.

    There

    is

    further support in section 6(A)

    of

    the Election Code, which states:

    The term

    of

    office for all offices filled by the general andior

    chapter elections shall be four years. The first half

    of

    the term

    of

    office shall be the first 24 months following the oath

    of

    office for

    that position. he section

    h lf

    of the term of office shall be the

    remaining term prior to the next oath of office for that position.

    (Emphasis added).

    Section 6(A) expressly recognizes that a

    N a v ~ j o

    Nation President's term is four

    years. However, section 6(A) needs to be read in its entirety. The first sentence cannot

    be

    read

    in a vacuum without the context of the following sentence and subsection 6(B) to interpret it.

    Section 6(A) goes on to state that the first half of a four year period is 24 months

    and the second half

    of

    the term

    of

    office is the remaining term prior to the next oath

    of

    office for

    7

    See 2 N.N.C. I002 and II N.N.C. 6(A) which limits a President's term to four years. Additionally,

    in Nelson

    v. Initiative Committee to Reduce the Council,

    No. SC-CV-03-IO, slip op. at 20 (Nav. Sup. Ct. May 28,2010), the

    Navajo Supreme Court suggested that the

    21 1

    Council tenn would expire on January 11,2011. This language can

    be referred to as dicta and not controlling to the issue at hand because the Court did not analyze an official's

    expiration tenn as an actual issue in the case .

    8 See 63C Am. Jur. 2d Public Officers and Employees 148 (emphasis added) (footnote omitted).

    P.O. Box 2010. Window Rock, Navajo Nation AZ) 86515 928-871-6937 Fax No. 9 2 8 ~ 8 7 1 6 1 7 7

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    Memorandum to President Ben Shelly and Pro Tempore Speaker Lorenzo Bates

    RE: President Shelly's Presidential Term

    December 15,2014

    Page

    4

    of 5

    that position." This subsection specifically designates the first half of the period as "24 months"

    but does not specify a set number of months for the second half of the term. It leaves the time

    period open, dependent on when the next oath of office for that position is taken. If the Council

    wanted

    to

    prevent elected officials from holding over

    in

    office they would have fixed the length

    of

    the second half of the term of office to a specific number of months instead of tying it to the

    next oath of office, a potentially unspecified date. Thus, when reading section 6(A) and 6(B)

    together, it is clear that President Shelly's term expires only when the next oath

    of

    office can be

    taken by a newly-elected President.

    For discussion purposes, DOJ considered whether an alternative reading of the

    Code could result in President Shelly's term ending on January 13, 2015. However, there are

    several impracticalities for such a result. First, section 6(A) and section 6(B) would need

    to

    be

    completely disregarded. Second, and moreover, the Navajo Election Administration (NEA)

    would need to be empowered to declare a vacancy.

    Vacancies are described in section 140

    9

    of

    the Election Code, which contemplates

    vacancies by removal, forfeiture

    of

    office, recall, death, resignation, and disqualification.

    Section

    140

    states that the NEA is only authorized

    to

    declare vacancies under such limited

    circumstances. to Thus, because section 140 does not allude to an expired term as a vacancy in

    any way, it is reasonable to suggest that the NEA is not authorized to declare a vacancy resulting

    from an expired term.

    However, even if the Navajo Nation Council could pass emergency legislation

    to

    empower the NEA to declare a vacancy on January

    13,

    2015, there are other important issues

    to

    consider. First, pursuant

    to

    section 141 (C), a vacancy in both the Office

    of

    the President and

    Vice-President, results in the Speaker

    of

    the Navajo Nation Council serving also as the Navajo

    Nation President. Second, if an expired term were to automatically create a vacancy in the

    Office of the President and Vice-President, by the same logic, a vacancy would also occur in the

    Speaker position as well. Pursuant to 2 N.N.C. 282(C), a Speaker

    is

    not chosen until the fourth

    Monday in January (i.e. January 26,2015). This would lead to either not having a President for

    almost two (2) weeks or requiring the Council to immediately appoint a pro tern Speaker to serve

    in the interim. There are problems with both of these scenarios.

    There is nothing in the Code supporting a Council's action to appoint a pro tern

    Speaker who could serve as interim President. Even if the Council could appoint a "permanent"

    Speaker on January 14, 2015, section 141(C) and section 144(B) states that "[s]ervice by the

    Speaker as President

    as

    provided herein shall not create a vacancy in the Office

    of

    the Speaker."

    This is problematic because there would be one person leading two branches of the Navajo

    government. Essentially, this would result in a return of the old Chairmanship position that the

    9 In 2008, Vacancies was moved from section

    141

    to 140

    in

    Title 11.

    1

    See

    11

    N.N.C.

    140(A) stating that vacancies may be declared "[s]ubject to provisions

    of

    this Section."

    P.O. Box 2010. Window Rock, Navajo Nation AZ)

    86515.928 871 6937.

    Fax No. 928-871-6177

  • 8/10/2019 Petition for clarifying opinion

    17/23

    Memorandum to President Ben Shelly and Pro Tempore Speaker Lorenzo Bates

    RE:

    President Shelly's Presidential Term

    December 15,2014

    Page 5 01'5

    Navajo Nation struggled to get away from in 1989. Noteworthy, immediately alter the 1989

    government retorm (1990 to 2005), section 144(C) stated that when the Speaker was required to

    scrve as President, a vacancy would occur in the Speaker position.1

    2

    However, in 2005, the law

    was changed to state the complete opposite, such that service by the Speaker as President does

    not create a vacancy in the Speaker position. \3 The law was changed under the former eighty

    eight (88) Delegate Council. However, in applying the current law, a Speaker, who

    is

    elected by

    at least thirteen (13) Council Delegates and at most twenty-three (23) Council Delegates,

    4

    would

    create a single leader for two

    o

    the three Branches

    o

    our government. Thus, rather than

    stretching the meaning o vacancy beyond what is supported by the Code, and bringing back

    the Chairmanship position (however brief), a more reasonable approach would be to have

    President Shelly continue in office until a new President is elected and can be sworn into office.

    cc: 22

    nd

    Navajo Nation Council

    See CD-68-89, December IS, 1989, stating in relevant part, [r]ecent controversy involving the leadership o the

    Navajo Nation has demonstrated that the present Navajo Nation Government structure allows too much centralized

    ~ o w r without real checks on the exercise o power.

    2

    Section 144 which reaffirms section 14J(C) was not created until 2005 through the Navajo Nation Special

    Elections Act of200S.

    3

    The Navajo Nation Special Elections Act of200S passed

    on

    September

    2

    200S.

    14

    Alternatively, President Shelly was, at one time, elected by a majority o registered votes cast in the 2010

    Presidential election.

    P.O. Box 2010 Window Rock, Navajo Nation AZ) 86515 928-871-6937 Fax No. 928-871-6177

  • 8/10/2019 Petition for clarifying opinion

    18/23

    xhibitC

  • 8/10/2019 Petition for clarifying opinion

    19/23

    Honorable LoRenzo Bales

    Telephone:

    (928)871-7166

    Office ofLegi ilative Counsel

    Pro-

    Tern

    Speaker

    22 d Navajo Nation Council

    Fax #

    (928)871-7576

    MEMORANDUM

    TO LoRenzoC Bates

    SpeakerProTempore

    NavajoNationCouncil

    22

    nd

    NavajoNationCouncilDelegates

    FROM: ____

    ~ ~ ~ ~

    LevonB.Henry,

    ChiefL

    iveCounsel

    Office

    of

    LegislativeCounsel

    DATE: December22,2014

    RE

    : 2014PresidentialElectionVacancies

    1

    ISSUE

    Intheevent

    of

    avacancyintheOrfice

    of

    thePresidentandVice-President

    of

    theNavaj

    0

    Nation,whatisthesuccessionprocess?

    II. SHORTANSWER

    IntheeventboththePresidentandVice-Presidentpositionsarevacant,underNavajo

    NationlawtheSpeakerof theNavajoNationCouncilservesthedutiesandresponsibilitiesas

    Presidentuntilthevacantpositionsarefilledpursuanttolaw. Seegenerally,2N.N.C. 1006;

    11

    N.N.C.141.

    III. FACTS

    The2014generalelectionforPresidentandVice-Presidenthasbeenfarfromordinary.

    ThegeneralelectionwasheldonNovember4,2014,asrequiredby 11 N.N.C.3(A),but

    age o

    5

    qffiC a/Legis/ali"

    COl/lise

    I 77 C Legis/alive lJJ'(Jnch /Post qffi e Box 3390 Window Rock. Arizona /86515

  • 8/10/2019 Petition for clarifying opinion

    20/23

    without the election o a President and Vice-President. The judicial process disqualified a

    candidate

    for

    Navajo Nation President, and the qualification

    o

    a second candidate was

    challenged and recently, the second candidate was determined to be qualified. Therefore, with

    no general election

    for

    the Office o President and Vice-President taking place as o this date no

    elected persons will

    be

    eligible

    to

    be installed

    in

    office on January 13,2015.

    The

    consequence o

    this

    delay

    will cause vacancies

    for

    the positions o President

    and

    Vice-President at

    the time the

    terms

    o

    office for the positions are set to commence in January 2015.

    The general rule is that the Board o Election Supervisors

    has

    the authority

    to

    postpone

    for

    a

    maximum o

    60 days

    any

    Navajo election for

    the

    purpose o printing new ballots required

    because

    o

    changed circumstances. 11

    N.N.C.

    3 E).

    The judicial disqualification o a

    presidential candidate disrupted the statutorily mandated November 2014 general election and

    had

    created

    new

    uncertainty

    in

    the timing

    o

    the Presidential election. It will

    be

    necessary

    to

    extend the presidential election beyond the 60 day period as required in 11 N.N.C. 3 E).

    IV. DISCUSSION

    2 N.N.C. 1002 A-B) establishes the Offices o President and Vice-President 2

    N.N.C.

    1002 C) explicitly provides that [t]he President shall

    be

    elected for a term o four years.,,2

    While the

    Navajo

    courts

    have not

    addressed the

    term

    issue directly, the Navajo

    Supreme

    Court in

    Nelson v

    Initiative ommittee

    to

    Reduce

    Navajo

    Nation

    Council

    et

    al recognized that there are

    discrete term limits for elected officials by stating, We

    have

    hurried this opinion as the timelines

    for the 2010 election are drawing near, and the present authority o the 21st Navajo Nation

    Council will expire on January 11,2011. No. SC-CV-03-1O, slip op. at 20 (Nav. Sup.

    Ct. May

    28,2010). Presumably the Navajo courts will continue

    to

    recognize case precedent regarding the

    discrete term limits established in the Navajo Nation Code, which, in the present situation, will

    expire on January 13,2015.

    1 See

    Tsosie t 01 v. NBOES

    t 01. SC-CV-68-14,

    slip op Nav.

    Sup.

    Ct. Nov.

    4,

    2014) removing all members o the

    Board o Election Supervisors, postponement o presidential election pursuant to Section 3 E} o Title 11

    o

    the

    Navajo Nation

    Code, and

    authority delegated to NEA.

    2

    See also 11 N.N.C. 6 A). The term o office for all offices filled by the general and or chapter elections

    shall be

    four years.

    Page 2 o 5

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    Come January 13,2015, in the absence

    of

    a President-elect and Vice-President-elect for

    the 2015-2019 term; it could

    be

    argued that the current President

    and

    Vice-President remain in

    office

    until

    their successors

    are

    elected.

    3

    This

    position

    is not

    definitively recognized in

    the

    Navajo Nation Code as

    will

    be examined below. While not specifically addressing the current

    election situation, the Navajo Nation Code

    has

    a safety net provision

    in the

    event there

    is

    no

    President or Vice-President.

    However, as

    stated by the Office

    of the

    Attorney General,

    the

    presumptive argument in their scenario

    is

    based on the provisions in 11 N.N.C. 6 B}, the Terms

    ofOffice

    and

    Oath provisions, which state: At each general election all persons elected to the

    offices

    of

    President of the Navajo Nation, Vice-President

    of the

    Navajo Nation ..shall be

    installed in office at noon on the second Tuesday after the first

    Monday

    ofJanuary following

    their election and their predecessor s term office shall expire

    upon

    their installation in office

    (emphasis

    added).

    While this statute

    would

    apply in the ordinary circumstances

    in which

    a

    general

    election has taken place and a President-elect and Vice-President-elect are prepared to

    take

    office, in

    the

    instant

    case

    there is no President-elect or

    Vice

    President-elect.

    The safety net provisions are

    found

    in the

    Navajo

    Nation

    Code,

    Title

    Two and

    Title

    11.

    The

    Code

    provisions anticipate a vacancy

    in

    elected positions

    and,

    while the current situation

    is

    unique,

    the

    Code provisions remain applicable. Because an election date for President and Vice

    President

    is

    set after January

    13,

    20 IS,

    a vacancy

    will

    occur for the Office

    of

    President

    and Vice

    President.

    A vacancy

    is

    defined as:

    A place or position which is empty, unfilled, or unoccupied. n

    unoccupied or unfilled

    post,

    position, or office. An existing

    office, etc., without an incumbent. The state of being destitute

    of

    an incumbent, or a proper or legally qualified officer. The

    term

    is

    principally applied

    to an

    interruption in the incumbency

    of an

    office, or

    to

    cases

    where the

    office

    is not

    occupied

    by

    one

    who

    has

    a legal right to

    hold

    it and

    to

    exercise the rights and perform

    the duties pertaining thereto. The word vacancy, when applied

    to official positions, means,

    in

    its ordinary and popular sense,

    that an office is unoccupied,

    and

    that there

    is

    no incumbent

    who

    has a lawful right to continue therein until the happening of a

    future

    event, though the word is sometimes

    used

    with reference

    to

    an

    office temporarily

    filled.

    Black's

    Law

    Dictionary, 5

    th

    edition.

    See

    Navajo

    Nation Department o

    Justice,

    Office o the Attorney General Memorandum, December

    15,

    2014,

    Subject:

    President

    Shelly s

    Presidential

    Term.

    Page

    3 o 5

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    How

    such vacancies are

    to be

    filled

    is

    addressed

    in 11

    N.N.C.

    141,

    which provides:

    If

    both Navajo Nation President

    and

    Vice President positions

    become vacant simultaneously, resulting

    in

    the absence

    of

    a Vice

    President to succeed the position

    of

    President, a special election

    shall

    be

    conducted to fill the vacancies whether such vacancies

    occur within

    the

    first or second half

    of the

    terms

    of

    office.

    However.

    a Navajo Nation General Election is scheduled within

    90

    days

    vacancies being

    declared

    the Speaker the Navajo

    Nation

    Council shall serve as

    Navajo

    Nation President and shall

    complete

    such

    term office

    Service

    by

    the Speaker

    as

    President

    as

    provided herein shall not create a vacancy

    in

    the Office

    of

    the

    Speaker. (emphasis added). 11 N.N.C.

    141 C).

    A vacancy and service by the Speaker in absence

    ofa

    President is also supported by 2 N.N.C.

    1006

    which provides:

    If

    a vacancy should occur in the Office

    of

    the President

    and

    Vice-President

    of

    the Navajo Nation,

    the

    Speaker

    of

    the Navajo

    Nation Council shall serve

    as

    President

    of

    the Navajo Nation until

    a special election

    is

    held ... Service

    by

    the Speaker

    as

    the President

    shall not create a vacancy

    in

    the Office of the Speaker.

    As provided in the vacancy provisions

    of2

    N.N.C.

    1006

    and 11 N.N.C.

    141 C),

    vacancies in the Office

    of

    the President and Vice President are filled by the Speaker

    of

    the

    Navajo Nation Council until an election

    4

    is held for the positions

    of

    President and Vice

    President. Additionally, the phrase in 2 N.N.C.

    1006

    and

    II

    N.N.C.

    141 C)

    of

    ... Service

    by

    the

    Speaker

    as President shall not create a vacancy in the Office of the Speaker is addressed in 2

    N.N.C.

    287 regarding the appointment

    of

    a Speaker Pro Tern so as not to

    be

    violative

    of2

    N.N

    .C.

    1, establishment

    of

    a three-branch government.

    Pursuant to 2 N.N.C.

    287 A) the Navajo Nation Council at a regular or special meeting,

    in absence

    of

    the Speaker, may select a Speaker Pro Tern from the Chairpersons

    of

    the Standing

    Committees until the Speaker arrives. In addition, 2 N.N.C.

    286 regarding a vacancy in the

    Office

    of the

    Speaker, the Navajo Nation Council shall select

    and

    confirm

    from among

    its

    members a successor to serve the remainder

    of

    the term

    of

    the Speaker. Section 286

    was

    4

    Special election is defined

    as

    [e)lections called

    by th

    Board In

    th

    event

    of

    a sufficient recall

    or

    referendum

    petition

    or

    to

    fill a vacancy in accord

    with

    this Title. 11 N.N.C.

    2{1J {Supp.

    2009).

    Page

    4 of 5

  • 8/10/2019 Petition for clarifying opinion

    23/23

    recently

    used

    in the vacancy

    of

    the Speaker position

    in

    April

    2014.

    Construing the Speaker

    provisions and Speaker Pro Tern provisions in Title 2

    the

    Navajo Nation Council may select a

    Speaker Pro Tern in a special session on January 13 2015. The selection ofSpeaker

    Pro Tern

    on

    January 13 with its accompanying authorities and duties may invite the application of N.N.C.

    1006.

    Subsequently the Navajo Nation Council may select from its membership a Speaker

    Pro Tern to carry out the duties for the

    Navajo

    Nation Council and the Legislative

    Branch

    in

    respect

    of the three branch government.

    In

    the situation presente