Court defers action on Shirley request for TRO

Window Rock District Court Judge Geraldine Benally deferred a decision on granting a temporary restraining order against the Navajo Nation Council on Wednesday, which would have allowed President Joe Shirley Jr. to go back to work.

Benally's decision in effect means Shirley will remain on administrative leave, at least for the time being.

Her official ruling is due Thursday, in which she could grant the restraining order or stay the proceedings for up to 60 days, giving time for proper notification of the defendants - the speaker and council.

"I don't know if the parties named have been given proper notice of the hearing," Benally said. "This court is unable to proceed today."

Shirley - represented by Michelle Dotson, legal counsel for the president's office, and Phoenix lawyers Paul Charlton and Benjamin Runkle - filed a request for a temporary restraining order on Monday in Window Rock District Court. Charlton is a former U.S. attorney for Arizona.

No one appeared at the hearing from the legislative branch.

Charlton argued that the request for a restraining order was an emergency and should be acted upon immediately. In any case, the council was informed immediately after placing Shirley on leave through a memorandum from the attorney general who stated that legal action was imminent, he said.

The restraining order was directed at the Navajo Nation Council and Speaker Lawrence T. Morgan (Iyanbito/Pinedale), and would prohibit them from acting on the resolution that placed Shirley on administrative leave.

The council voted Oct. 26 to place Shirley on leave pending further investigation into his involvement in two business dealings that went sour and cost the tribe millions of dollars.

In November, a representative of the Navajo Nation's Department of Justice said Attorney General Louis Denetsosie has decided that information uncovered so far warrants a special prosecutor to further investigate.

Frustrated by Denetsosie's refusal to appoint a special prosecutor last year, when details of the business debacles became clear, the council appropriated $500,000 and commissioned investigations by two outside law firms.

The law firms did not have subpoena power, which meant they could not compel anyone to divulge information, but what they found was sufficient for Denetsosie to reverse himself and seek a special prosecutor.

Morgan has declined to release the reports, even to Shirley, but they were discussed by delegates in executive session, and resulted in the decision to sideline Shirley while the investigation is still open.

Shirley's petition to the court challenges the legality of the council's vote. Putting him on leave was not in the best interest of the Navajo people and violated his right to due process, he argued in his TRO request.

The council "failed to provide President Shirley with notice and an opportunity to be heard," the motion states.

The council's actions violated several tribal laws and traditions including separation of powers, Shirley asserted.

"To maintain a sense of order and peace, Shirley has voluntarily chosen not to return to his office," the motion states. "The president's voluntary action cannot be viewed as his concession that the law is valid. It is not."

He also brought up the timing of the council's vote, which took place after the court system gave the green light to Shirley's government reform initiative that would reduce the council from 88 to 24 members.

According to Navajo law, the council is required to specifically state its grounds for finding that Shirley "seriously breached his fiduciary trust" to the people, the motion states.

"The council wholly fails to identify what its 'grounds' are, let alone how its 'grounds' are reasonable," his motion states. "This failure deprives the people of the opportunity to determine whether the council's determination or belief was objectively reasonable."

In addition, the council resolution made no mention that placing Shirley on leave was in the best interest of the Navajo people, another requirement for placing the tribal president on leave.

Shirley also questions the bill's "emergency" label. Under tribal law, legislation undergoes a lengthy review process in committee before reaching the council for a vote. Emergency bills are not subject to review and can be brought to a vote quickly.

However, only specific measures can be called an "emergency" and the leave bill did not meet the requirements for that label, Shirley contends.

In fact, he refers to the attorney general's earlier memorandum to the council stating there was only "scant evidence that the president engaged in any criminal conduct."

Shirley also challenged the leave resolution on procedural grounds, saying it was never sent to the president's office for signature or veto.

"The council's refusal or failure to present the resolution to the Executive Branch means the resolution never became law," it states.

Being put on leave amounted to punishment without benefit of trial, Shirley claims. 

Shirley also suggests the council influenced his stand-in, Vice President Ben Shelly, to fire his top aide, Patrick Sandoval. And he hints that more heads will roll in the executive offices unless the court acts fast.

"The council's action has deprived (the people) of their leader," the motion states. "The more time that passes without the president in office, the more unchecked action the council is taking and the more integral staff will be terminated."

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