Supreme Court explains contempt ruling

CHINLE

The divisiveness over the Navajo Nation Supreme Court’s Oct. 31 oral contempt ruling compelled the court to go to great lengths — 12 pages, to be exact — to explain its decision in its written order, made public Wednesday evening.

“Because of the continuing politicalization of this Court’s judgments, it is necessary to give the Court’s procedural perspective of how and why this matter has gotten to the point of contempt,” justices Herb Yazzie and Eleanor Shirley wrote in introducing their opinion.

After a hearing in Chinle District Court, the justices had found the Navajo Board of Election Supervisors — but not Election Administration Director Edison Wauneka — in contempt of a previous writ of mandamus for failing to postpone the election for Navajo Nation President and failing to remove disqualified candidate Christopher Clark Deschene’s name from the ballot.

Justice Irene Black had removed herself from the contempt case after filing a dissenting opinion when the justices issued a write of mandamus for the election, stating the court had exceeded its authority.

“The Respondents, through the Chief Legislative Counsel, filed a response to the motion on October 30, 2014,” the Supreme Court opinion reads. “The response brief, however, did not state that the Respondents complied with the Permanent Writ of Mandamus. In particular, it did not state the Respondents implemented 11 NNC 44 by reprinting the ballots without the name of the disqualified candidate and postponing the November 4, 2013 general election.”

Instead, the finding reads, “Respondents put forward arguments that would have been more appropriately raised in their Sept. 25, 2014 Amicus Curiae brief” in which NBOES argued that it did not have statutory authority to challenge what a candidate had written on his application.

“Moreover,” the justices wrote, “the arguments furthered by the Chief Legislative Clounsel on behalf of the board are in total disregard of Navajo Election laws as enacted by his other client — the Navajo Nation Council.

“Furthermore, these statements were made even after Deschene’s explicit statements that he ‘accepts that this Court has determined it was necessary to remove him from the ballot and remove the ability of the People to elect him,’” the court wrote, quoting from Deschene’s objection to paying the court costs of Hank Whitethorne and Dale Tsosie, who brought the original case against him for allegedly lying about his Navajo language fluency on his candidate registration form. (Deschene lost that case.)

The board’s attorney, Steve Boos, had argued that the writ of mandamus was contrary to the will of the people, and the NBOES should not be held in contempt for trying to uphold the people’s will.

However, “The issues raised by the respondents as to the validity of 11 NNC 8(A)4 (the language requirement) are settled,” the court wrote.

In a footnote, it added, “This Court stated almost eight years ago that ‘Though the rights to choose leaders and to participate in the Navajo political process are fundamental, they are not absolute.’”

“Nonetheless,” the document continues, “at the hearing, the Respondents merely reiterated the arguments from their briefs and offered no additional information to show cause why they should not be found in contempt. The fact is there was absolutely no showing that the Respondents actually complied with the (Office of Hearings and Appeals) and this Court’s order.      “This open defiance is maintained throughout the Respondents’ response brief.”

Boos had also argued that the election was already under way with early and absentee ballots, so the court’s order would have required halting an election already in process.

The court didn’t buy it.

“The fact remains that as early as September 5, 2014, the Respondents were on notice of a complaint filed against Deschene in the OHA,” the decision reads. “Additionally, the Respondents were on notice of the subsequent appeal to this court on September 15, 2014, which resulted in a final order from OHA disqualifying Deschene on October 9, 2014.”

According to the justices, Deschene’s disqualification should have automatically gone into effect after the deadline for all challenges had lapsed on Oct. 21.

“Instead,” their decision reads, “after Oct. 21, 2014, the Respondents took no action having commenced absentee voting with an unaltered ballot bearing the name of the disqualified candidate in violation of their duty … to present ‘qualified’ individuals to the public.”

The justices also argue in their decision that the NBOES exceeded its mandate by attempting to interpret the law rather than upholding it.

“In our October 23, 2014 order, we stated the Board is no longer a hearing body and doesn’t have authority to declare Navajo laws invalid through judicial review,” the document says.

Although Yazzie, the chief justice, hinted at the hearing he would deal at some point with the government attorneys who were supposed to be advising the NBOES, the decision issues a strong reprimand but stops short of a penalty for them.

“The Court is troubled by the actions of the government attorneys in this case, particularly the actions of the attorneys from the Navajo Department of Justice and the Office of Legislative Counsel,” the justices state. “At the onset of this dispute, the attorneys from these offices had the opportunity to urge the Board to comply with the decision of the OHA at the October 13, 2014 Board meeting by informing members that 11 NNC 44 was a ministerial act that required no Board action for the (Navajo Election Administration) to execute.

“Instead, government lawyers incorrectly informed the Board that how the NEA should deal with the disqualification is up to the Board.”

The attorneys also continued to advise the Navajo Nation Council as it prepared “retroactive legislation” that would have modified the language requirement, “giving the appearance of furthering the political desire of one candidate whom had been disqualified,” the justices wrote. “We have said, ‘under all circumstances, it is the heightened duty of the government lawyer to be independent, candid, neutral rather than partisan because of their duty to the public trust, and most of all through their analysis.”

The Supreme Court decision finds the election supervisors — Wallace Charley, Jonathan Tso, Norman L. Begay, Harry D. Brown Sr., Michael Coan, Lenora Fulton, Frannie George, Ruth Watson and Tom M. White Jr. — in contempt of court, in violation of Navajo election laws, and remiss in their duties.

It strips them of their authority to supervise the 2014 election, removes them from their posts and orders the Navajo Nation controller to place a hold on all meeting expenditures and stipend payments.

As for the two members — White and Begay — who were running for Council, “the NEA shall also enforce 11 NNC 240 as to those named members should they be elected,” the court instructs.

Title 11 NNC 240, however, has to do with removal of the president, vice-president or Council delegates and placing them on administrative leave, leaving it unclear as to what to do about the vacancies left on the ballot by the two former election supervisors.

The election administration declared the Council elections in White’s and Begay’s districts invalid, but by Friday had not yet determined whether to postpone those elections until Dec. 23 along with the presidential election, or simply allow their challengers to step in.

“Mr. Wauneka is in meetings right now dealing with that very topic,” an employee at the NEA told the times Friday morning.

“We are a nation of laws,” the court states in its decision. “If we are to continue on our journey as a sovereign Nation, we must collectively uphold and respect the laws of our Nation, especially those laws that are embedded in our identity as Diné.”