In re Two Initiative Petitions Filed by Shirley

7 Am. Tribal Law 628
CourtNavajo Nation Supreme Court
DecidedJuly 22, 2008
DocketNo. SC-CV-41-08
StatusPublished
Cited by6 cases

This text of 7 Am. Tribal Law 628 (In re Two Initiative Petitions Filed by Shirley) is published on Counsel Stack Legal Research, covering Navajo Nation Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Two Initiative Petitions Filed by Shirley, 7 Am. Tribal Law 628 (navajo 2008).

Opinion

OPINION

This case concerns a request for a certified question from the Office of Hearings and Appeals (OHA) arising out of a dispute between the President of the Navajo Nation and the Speaker of the Navajo Nation Council over the decision of the Navajo Nation Election Administration (Election Administration) that two initiative petitions are sufficient under the election laws. The Court accepts the question, and holds that the Navajo Nation Council deferred to the Navajo People to make amendments to Section 102(A) of Title II of the Navajo Nation Code, and may not amend it independently.

I

The relevant facts are as follows. On April 29, 2008, Navajo Nation President Joe Shirley, Jr. (President) filed two documents, each called a “Navajo Nation Wide Initiative Petition” (collectively “Initiative Petitions”) with the Election Administration. If approved by Navajo voters, the Initiative Petitions would reduce the number of Navajo Nation Council delegates from 88 to 24 and expand the powers of the President by giving him line-item veto authority. The Election Administration reviewed the Petitions, and declared them sufficient. The Navajo Nation Speaker Lawrence Morgan (Speaker) filed an objection to the Initiative Petitions with OHA, challenging the determination that the Petitions were sufficient, and moved for summary judgment. President Shirley filed a motion to dismiss on the grounds that OHA lacks jurisdiction in the matter.1

According to Petitioner OHA, the parties currently are discussing a settlement of their dispute, but a disagreement on one issue of law hampers resolution. Specifically, as discussed in more detail below, the parties disagree whether Section 102(A) of Title II, which states that the Council is made up of 88 delegates, can be amended only by Navajo voters, or also by the Council. The parties jointly filed a motion asking that OHA certify the question to this Court. OHA filed its Petition for Certification of a Question (Petition) with this Court on July 16, 2008. According to OHA, the parties want the Court to answer the question prior to the beginning of the regular session of the Navajo Nation Council on July 21, 2008. According to the parties, an answer before then is “essential to the mutually beneficial outcome of their settlement discussions.” Petition at 3.

II

The issues in this case are (1) whether the Supreme Court can accept certified questions from OHA, (2) whether the Court can accept the specific question asked by OHA, and (3) whether the Council, in addition to the Navajo People, may make amendments to Section 102(A) of Title II of the Navajo Nation Code.

HI

There is a threshold question not discussed in OHA’s Petition: whether the Supreme Court can accept a certified [630]*630question from OHA, a quasi-judicial tribunal under the Executive Branch. Both parties in the OHA proceeding requested the question be certified, but the Supreme Court is obliged to examine its own jurisdiction despite their agreement that the Court has authority to hear this matter. See In re A.P., No. SC-CV-02-05, 6 Am. Tribal Law 660, 662, 2005 WL 6235943 at *2 (Nav.Sup.Ct.2005). The Court has answered certified questions before, but all have been questions submitted by trial courts. See In re Excused of Ferguson v. Marshall, 7 Nav. R. 320,1 Am. Tribal Law 489, 1998 WL 35278255 (Nav.Sup.Ct.1998); Navajo Nation v. MacDonald, 6 Nav. R. 204 (Nav.Sup.Ct.1990); Navajo Housing Authority v. Betsoi, 5 Nav. R. 5 (Ct.App.1984). Prior case law suggests only trial courts, not administrative agencies, can certify questions to this Court. See In re Navajo Board of Election Supervisors, 6 Nav. R. 302, 303-04 (Nav.Sup.Ct.1990). According to the Court, the Navajo Board of Election Supervisors could not certify a question, because answering a certified question from an administrative agency under the Executive Branch would violate separation of powers principles. Election Supervisors, 6 Nav. R., at 304.

Notwithstanding prior case law, the Office of Hearings and Appeals can certify this question to the Court. Principles of separation of powers are not implicated in this instance. Though the OHA is a quasi-judicial tribunal in a separate branch of the Navajo Nation government, this Court has appellate authority over the legal conclusions it makes in this ease, just as it has appellate authority over the trial courts. See 11 N.N.C. § 404(B)(14)(b)(7) (2005) (establishing appellate authority over OHA decisions on initiative petition objections). Therefore, our appellate authority over OHA gives this Court the jurisdiction to hear its certified questions, and Election Supervisors is overruled.

IV

The next issue is whether the Court can accept OHA’s specific question. The Court has set out the necessary elements for a certified question in Navajo Housing Authority v. Betsoi. 5 Nav. R. 5, 6-7 (Nav.Ct.App.1984). To be accepted, the question (1) must be one of legal doubt requiring a final determination of law, (2) must be of material importance or an issue of substantial public interest, and (3) may so affect the merits of the controversy that it ought to be determined by the Court before further proceedings in the lower tribunal. Id. at 6-7. Further, the question should be “carefully and precisely framed” to present “distinctly and clearly” the proposition involved. Id. at 7. Finally, the request for certification should contain “the proper statement of the ultimate facts upon which the question arises” and should “clearly show” what the lower tribunal wishes the Court to do. Id.

The Court holds the question presented fulfills these elements. The question whether the Council may independently amend Section 102(A) has never been before this Court. It therefore is of legal doubt, and requires a final determination of law. It dearly is of material importance to the Navajo Council and the People. It is precisely framed, and the proposition involved is distinct and clear: whether the Council has authority to amend Section 102(A). OHA has presented the ultimate facts underlying the question, and clearly has stated what it wishes the Court to do.

The only issue is whether OHA has shown that the question may affect the merits of the underlying dispute. According to OHA’s Petition, the question arises out of settlement discussions between the [631]*631two parties. According to OHA, resolution of the question will allow the parties to settle their differences, and ultimately will result in dismissal of the dispute. However, it appears that the precise question is not before OHA in either the motion to dismiss filed by the President or the motion for summary judgment filed the Speaker. OHA does not attach the motions to its Petition, but its limited description of those motions suggests that the power of the Council to independently amend Section 102(A) is not directly at issue.

The Court nonetheless holds that the question will affect the merits of the underlying controversy, and accepts the question. The Court is satisfied that resolution of the question will result in resolution of the parties’ dispute. OHA asserts that the parties are near settlement, and that this question is the only thing in the way of resolving the dispute. Once settled, the suggestion is that the underlying case before OHA will be dismissed. The potential effect of the Court’s answer to the question on the ultimate resolution of the case is sufficient to certify the question and answer it.

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Related

Todacheene v. Shirley
9 Am. Tribal Law 322 (Navajo Nation Supreme Court, 2010)
Nelson v. Initiative Committee to Reduce Navajo Nation Council
8 Am. Tribal Law 407 (Navajo Nation Supreme Court, 2010)
Office of the Navajo Nation President v. Navajo Nation Council
9 Am. Tribal Law 46 (Navajo Nation Supreme Court, 2010)
Navajo Election Administration v. Shirley
8 Am. Tribal Law 261 (Navajo Nation Supreme Court, 2009)
Shirley v. Office of Hearings & Appeals
8 Am. Tribal Law 240 (Navajo Nation Supreme Court, 2009)

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7 Am. Tribal Law 628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-two-initiative-petitions-filed-by-shirley-navajo-2008.