High court ends delay in Shirley reform effort

The Navajo Nation Supreme Court, following a brief hearing May 14, gave a push to the months-stalled case involving President Joe Shirley Jr.'s ballot-based government reform initiative.

The high court made permanent an order of superintending control, and appointed a hearing officer for Shirley's appeal of a decision by the Navajo Election Administration to throw out two proposed ballot questions.

In May 2008 Shirley launched a drive to reduce the tribal council's size by nearly two-thirds, and to enable the tribal president to trim council spending measures using a line-item veto.

On Nov. 12 the NEA said he lacked sufficient valid signatures to place his proposals before voters.

The high court appointed District Court Judge Carol K. Perry as hearing officer for Shirley's appeal of the NEA decision.

The action overrode Chief Hearing Officer Marcella King-Ben, in whose care the appeal had languished since November as she looked for a hearing officer acceptable to both sides in the case.

Addressing the justices at last Thursday's hearing, King-Ben argued against appointing someone not certified by the State Bar of Arizona. Tribal judges and lawyers must belong to the Navajo Nation Bar but are not required to be members of their state bar.

Any decision made by someone not state certified would be appealed, she said. She did not make clear how this would differ from the remedy available to any party who is unhappy with a decision by a state-certified hearing officer, which is to appeal to the Navajo Nation Supreme Court.

When later asked to clarify the difference, King-Ben did not comment.

She also rejected the notion that her office has turned a deaf ear to the case, which has been held up since November.

"We have not failed to hear this matter," King-Ben told the court. "We are awaiting allocations from the president's office (to pay a hearing officer). The writ (of mandamus sought by Shirley) shouldn't be granted to expedite this matter."

A writ of mandamus, if granted, would have put the case directly in the Supreme Court's hands to decide. A writ of superintending control, by contrast, leaves the case in the Office of Hearings and Appeals for now but with the possibility of intervention by the high court.

In its decision, the Supreme Court also set a timeline for the case, saying a hearing should be scheduled before June 4 with a decision rendered within 10 days after the hearing.

"Judge Perry, with cooperation and assistance from the (Office of Hearings and Appeals), shall handle the disposition of this case expeditiously," the court stated.

The decision was signed by Chief Justice Herb Yazzie and associate justices Louise Grant and Eleanor Shirley (no relation to President Shirley).

Trail of delays

Thursday's decision ended a six-month bottleneck in Shirley's effort to get his government reform proposals before Navajo voters.

He needed 16,530 valid signatures for each question and had originally hoped to have them by August, in time to get on the ballot of November's general election (when voter turnout would be highest).

However, his proposals targeted the tribal council put him at odds with Speaker Lawrence T. Morgan, who sought to derail the signature petitions first with a challenge to their "legal sufficiency," and then by offering to negotiate a solution to Shirley's concerns.

Morgan said the goal would be to come up with a comprehensive plan to achieve "true government reform," and he and Shirley met throughout the summer, eventually stating that they had an agreement.

However, Morgan subsequently declined to offer legislation that would have implemented key provisions of the agreement, prompting Shirley to accuse him of "bogus" intentions.

Morgan, under pressure from fellow delegates not to do anything that would reduce the number of council seats, claimed that he'd never agreed to sponsor such a bill.

Shirley had missed the deadline to get on the November ballot but continued gathering signatures in hopes of holding a special election. He submitted over 36,000 signatures on Oct. 28, but the tribal elections office threw out more than 2,000 names on each petition, leaving Shirley short of the number needed to put either question before voters.

He appealed the finding, but his attorney, Albert Hale, openly questioned whether the case would get fair treatment from King-Ben, head of the Office of Hearings and Appeals, because she's a close friend of one of Morgan's chief allies on the council, George Arthur (Nenahnezad/San Juan/T'iistoh Sikaad).

King-Ben rejected Hale's concerns in some of the spiciest language heard publicly in Window Rock for a long time, calling Hale a "womanizer" whose ethical lapses brought his own tenure as tribal president to an early end.

She referred to the cases surrounding Shirley's voter initiative, both his appeal and Morgan's earlier challenge, as "frivolous" compared to her normal caseload of child support, labor dispute and similar bread-and-butter issues affecting Navajo families.

King-Ben: No one wants case

The real cause of the delay, King-Ben said, is that the two sides could not agree on an acceptable hearing officer.

     Citing her own previous work with both the council and the president's office, King-Ben removed herself. She had appointed Window Rock attorney John Chapela to hear Morgan's charge, filed in May 2008, that Shirley's petitions did not meet the legal requirements for a voter initiative.

Chapela later dismissed the case on a technicality - Morgan had failed to include the election office as a defendant, despite the fact that it had certified the language on both petitions before Shirley began circulating them.

But when Shirley appealed the NEA's rejection of a crucial number of signatures, Chief Legislative Counsel Frank Seanez - representing the election office - said Chapela should remove himself because he'd been overheard commenting in favor of a smaller tribal council.

Chapela denied that he would be biased, but stepped down.

Hale, representing Shirley, has since requested two other potential hearing officers but Seanez disagreed with both candidates.

Thursday's hearing came after Hale asked the Supreme Court to issue a writ of mandamus taking over the case. Though the court denied that request, it did agree to step in and give the case a push with the writ of superintending control.

However, King-Ben said the appointment of Judge Perry as hearing officer could actually delay things even further.

In her argument before the justices, King-Ben said she has already selected a hearing officer in Reuben Gallegos, a Window Rock attorney who belongs to both the Navajo Nation and Arizona bar associations. She had yet to finalize a payment agreement with Gallegos, but King-Ben said he is willing to hear the case.

"None of the (attorneys) in this area wants to hear this case," King-Ben said.

In order to finalize the pay agreement, King-Ben said she needs an estimate from Hale on how long he would need to present his case. Then she would need the president's office to allocate the necessary funding.

"He (Hale) never responded to my calls," King-Ben said.

Hale denies the charge and said he turned his time estimate the same time that the legislative counsel did.

She argued that Perry's appointment violates tribal code, which states that hearing officers be attorneys licensed by the tribe and by at least one of the states in which the reservation lies. Any decision made by a hearing officer lacking the proper licensure faces certain appeal, King-Ben said.

Chief Justice Yazzie addressed that matter early in the proceedings, citing the same subsection of tribal code, which gives the chief hearing officer the authority to appoint hearing officers "qualified by education and experience necessary" to handle the office's duties.

Since Perry would not be an employee of OHA,  "the requirement for state licensure doesn't apply," Yazzie said.

During his argument, Hale said he filed multiple requests with OHA to appoint a hearing officer, and that King-Ben and her office had not responded.

"We're faced with a situation where the ball is being hidden, we need to flush that out," Hale said in his opening statement, returning to the basic focus of Shirley's appeal. "We need to determine why those signatures were disqualified."

The Navajo Election Administration is part of the legislative branch, which is headed by Speaker Morgan. Hale called the delays an infringement on the voting rights of the Navajo public.

Hale later softened his tone towards King-Ben, saying he knew she "faced a lot of difficulties" in appointing a hearing officer, such as limited staff and money.

Even if Gallegos were to be chosen as the hearing officer he wouldn't be able to assume his duties until negotiations for pay were settled, further prolonging the delay, added Hale.

Perry is a tribal employee and will hear the case as part of her regular duties.

Following the session, Hale applauded the court's ruling, saying it will allow the Navajo people to exercise their "fundamental right" to change their government.

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