Election critic deserved a hearing, court told

The challengers to the Dec. 15 special election on reducing the council's membership filed their opening brief with the Navajo Nation Supreme Court Tuesday.

The 32-page document was prepared by Flagstaff attorney John Trebon and is the first of what is expected to be several briefs filed before the high court actually hears oral arguments on the case March 12.

Trebon is representing Timothy Nelson and Diné for Fairness in Government, a group consisting of mostly Western Agency voters who want to overturn the election results, in which voters approved reducing the council from 88 to 24 members and granted the president line-item veto authority over council spending measures.

The Supreme Court has invited all interested parties to file briefs in the matter as friends of the court or as intervenors.

A lower court dismissed Nelson's complaint against the election, and Trebon asked the justices to void that ruling, a move that could send his complaint back to the Office of Hearings and Appeals.

On Jan. 15, OHA dismissed Nelson's grievance because it did not list the Navajo Election Administration and Navajo Board of Election Supervisors. Both entities set up the election and should have been listed considering Nelson's complaints challenged the actual event, OHA stated.

Nelson's original complaint asserts a law passed in 1989, which states that a supermajority of voters is needed to change the size of the council.

In addition, his complaint said the ballot questions did not include a proposed plan showing how the changes would be implemented, the council was not given an opportunity to overrule the ballot initiative, and the president unfairly influenced tribal employees by granting two hours of additional leave on Election Day.

Among the first issues addressed in Trebon's brief is whether the OHA had denied Nelson due process by granting President Joe Shirley Jr.'s request for summary dismissal based on Nelson's failure to include key parties to the dispute (namely election officials).

"The unavoidable issue in this case is whether Mr. Nelson was denied due process of law and fundamental fairness," the brief states. "In light of the painful fact that no hearing or discussion of any kind was allowed by the Office of Hearings and Appeals, no factual record was developed."

The right to due process is upheld in both Navajo Nation Code and under the federal Indian Civil Rights Act, and guarantees "procedural fairness in hearings before administrative agencies," the brief states.

Nelson should have been given a chance to be heard before OHA dismissed his complaint, according to the brief.

"Navajo due process requires notice and provides all parties to the dispute with an opportunity to be heard," the brief states. "Navajo people have an established custom of notifying all parties involved in a controversy and allowing them an opportunity to present and defend their positions."

In fact, according to the brief, the OHA decision to dismiss, as made by Chief Hearing Officer Karen Bernally, did not allow anyone to comment on the matter before a decision was made.

Trebon suggests OHA was biased in its ruling, a common theme among opponents of council reduction who were unhappy with administrative and court rulings in favor of letting the question go before voters.

"The order was granted without allowing even a whisper in opposition and without the benefit of discussion or argument," the brief states. "The accelerated dismissal of Mr. Nelson's grievance smacks of partisan politics and disgraceful unfairness."

In addition, Trebon said the Office of Hearings and Appeals did not have the legal authority to dismiss the case without holding a hearing. Although the OHA could have dismissed the case due to insufficiency, it did not and instead dismissed based on a motion filed by Shirley.

"There is no authority for the OHA to dismiss the grievance, subsequent to initial review, on the authority of an unanswered motion," Trebon states.

Since it did not state that the dismissal was based on insufficiency, a hearing was mandatory, the brief states.

"After the hearing was set, due process required that it or an adequate substitute actually take place," according to the brief.

Trebon's brief stated that "sufficiency," a legal term, requires the complaint to list which sections of the code were violated and to contain enough facts to raise the issue that the election may have been unfair. Nelson prepared the complaint himself and specified a list of sections in the code where his concerns were addressed.

Trebon does not argue that Nelson's grievance did not need to include the election administration and supervisors. However, instead of dismissing his grievance entirely, the Office of Hearings and Appeals should have corrected the shortcoming by ordering that they be added as parties, he argued.

"It was grossly unfair to simply dismiss the grievance," the brief states. "Joinder would have been relatively easy to accomplish, if desired. A full and fair hearing could have been accomplished in an efficient and expeditious manner."

It's rare for courts to dismiss a case on such grounds, Trebon states. Usually, dismissal occurs when the parties cannot be joined in the case for reasons of jurisdiction or venue.

The brief reasserted Nelson's original complaint that the election should have required a supermajority of all registered voters in all precincts, not just those who cast votes.

Tribal law is specific in requiring a supermajority approval to pass a special measure or initiative, he asserted.

"The distinction is critical, not meaningless," he states. "The organic statute did not allow the number of tribal council delegates to be easily changed, but required no less than a majority vote of all registered voters in all precincts."

The council created the supermajority rule and when voters approved reducing the council from 88 to 24 members in 2000 in a referendum - a ballot question referred by the council itself - the council dismissed the results, citing the supermajority rule.

However, in a 2008 opinion, Navajo Nation Attorney General Louis Denetsosie said that supermajority rule did not apply to initiatives, which are initiated by voters who are required to gather signatures of 16 percent of all registered voters before the question can be placed on the ballot.

In a separate ruling in 2008, the Supreme Court said laws that make it impossible for the voters to shape their own government are invalid.

Still, Trebon said Navajo laws are not meant to be taken lightly.

"Loose interpretation of election laws leads to abuse or selective enforcement," he said.

Seeking to draw a parallel, Trebon noted that when the council wanted to give itself a raise a few years ago, a simple majority vote was not enough. The salary increase had to be ratified by two-thirds of the chapters.

Trebon's brief is the first of what should be several briefs in the Nelson appeal.

Shirley, the target of Nelson's complaint, is scheduled to file a response by Feb. 26. A rejoinder from Trebon is then due by March 5.

The court also set March 5 as the deadline for amicus (friend-of-the-court) briefs and petitions to intervene (become a party to the case.)

On Monday the Intergovernmental Relations Committee directed the chief legislative counsel to submit a brief in the case on behalf of the council.

The high court is scheduled to hear oral arguments Friday, March 12, at 10 a.m. in the Navajo Nation Museum.

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