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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
8/10/2019 Petition for clarifying opinion
2/23
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
8/10/2019 Petition for clarifying opinion
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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
8/10/2019 Petition for clarifying opinion
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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.
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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
8/10/2019 Petition for clarifying opinion
7/23
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
8/10/2019 Petition for clarifying opinion
8/23
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]8/10/2019 Petition for clarifying opinion
9/23
xhibit
A
8/10/2019 Petition for clarifying opinion
10/23
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
8/10/2019 Petition for clarifying opinion
11/23
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
8/10/2019 Petition for clarifying opinion
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xhibit
B
8/10/2019 Petition for clarifying opinion
13/23
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
8/10/2019 Petition for clarifying opinion
14/23
.
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
8/10/2019 Petition for clarifying opinion
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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.
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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.
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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).
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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