Court voids Shirley ouster

F irst, Window Rock District Court Judge Geraldine Benally ruled that the Navajo Nation Council acted outside its authority when it placed President Joe Shirley Jr. on leave Oct. 26.

Then she ruled Monday evening that the legislation that the council had used to do so was null and void.

Shirley was back in his office two hours later.

"It makes my heart feel glad," Shirley said in an impromptu gathering of his supporters at his office Monday night. "Judge Benally ruled the legislation they used was invalid. It's as though there really was no law and I was never on leave."

Benally's ruling came exactly seven weeks after the council voted 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.

She had originally called a hearing on Shirley's request for a temporary restraining order prohibiting the council from acting on its leave bill.

However, Shirley's legal team, Benjamin Runkle and Kiersten Murphy of the Phoenix law firm Gallagher and Kennedy, argued that the council did not follow its own policies and procedures and denied Shirley due process, meaning the council acted outside of its scope of authority.

Benally agreed. Runkle then asked her to nullify the council's bill, and Benally again agreed, ruling the legislation null and void. Her written ruling was due out late Wednesday.

Paul Charlton, the lead attorney on Shirley's legal team and former U.S. district attorney for Arizona, was called to a separate hearing in New York and was not present at Shirley's proceedings.

Shirley also was not present at the district court hearing in Window Rock, although his supporters and staff aides nearly filled the courtroom. A handful of council delegates and legislative branch employees were also present. Speaker Lawrence Morgan (Pinedale/Iyanbito) appeared but left after less than an hour.

Frank Seanez, chief legislative counsel, asked Benally to allow his office to offer its legal services to represent the council in the case. However, Runkle objected, saying Seanez, who serves at the pleasure of the council and drafted the bill putting Shirley on leave, might be called as a witness.

Senior legislative attorney Tamsen Holm then was admitted to represent the council.

Holm repeatedly apologized to Benally during the four-hour hearing for not being prepared to argue the legislative branch's side of the case. Her declarations could form the basis for an appeal of Benally's ruling, on grounds that the legislative branch did not have adequate representation.

"I'd like to remind the court that I have not prepared to argue this case," Holm said.

Seanez had no comment following the hearing, but earlier Monday said the legislative branch was under the impression that Benally would grant a 20-day continuance. The council would have used that time to find an outside attorney, he said.

Benally did seem to be leaning towards granting the continuance when she first heard the case Dec. 9. However, two days later she instead set an evidentiary hearing for Monday to determine if the council deserved the delay.

Specifically, the hearing was to determine if the council's actions were protected by the tribe's Sovereign Immunity Act. If so, then Benally would have granted the continuance.

However, Runkle argued that the council acted outside its scope of authority and therefore was not covered by the act. He argued that the council - like any public servant - while acting in line with its duties, could still violate its scope of authority.

"Just as a police officer is acting in an official capacity within the Navajo Nation, but if they use excessive force, then that violated the fundamental rights of the people," he said. "If a delegate purports to act as a police office, it's not his position, it's outside the scope of authority."

Shirley immediately reinstated Patrick Sandoval as his chief of staff, reversing Sandoval's firing earlier this month by Vice President Ben Shelly, who was in charge while Shirley was on leave. Sandoval's firing was made without consulting Shirley, who did not agree with Shelly's action.

"To me, he's never left," Shirley said of Sandoval Monday night. "They might say they released him but to me he never left."

It's likely the council will appeal Benally's decision, but Runkle said, "If it is appealed, I have no doubt the outcome will be the same."

"The council failed to follow proper procedures and it also acted in a way that violates Navajo traditional law," he said.

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