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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.

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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

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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.