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  • 8/10/2019 Petition for clarifying opinion

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    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.

  • 8/10/2019 Petition for clarifying opinion

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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.