Shirley v. Office of Hearings & Appeals

8 Am. Tribal Law 240
CourtNavajo Nation Supreme Court
DecidedJune 22, 2009
DocketNo. SC-CV-24-09
StatusPublished
Cited by8 cases

This text of 8 Am. Tribal Law 240 (Shirley v. Office of Hearings & Appeals) 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
Shirley v. Office of Hearings & Appeals, 8 Am. Tribal Law 240 (navajo 2009).

Opinion

OPINION

This matter concerns an original action for an extraordinary writ filed by President Joe Shirley, Jr., on behalf of the Initiative Petition Committee, against the Office of Hearings and Appeals (OHA). We initially denied the request for a writ of mandamus and, in the alternative, issued an alternative writ of superintending control setting this matter for a hearing. On May 14, 2009, following the hearing, this Court issued a permanent writ of superintending control appointing a hearing officer, pursuant to 2 N.N.C. § 1053(A), and ordered expeditious disposition of this case.

I

This matter first came before the Court on a certified question from the OHA. See In the Matter of Two Initiative Petitions Filed by Navajo Nation President Joe Shirley, Jr., 7 Am. Tribal Law 628 (Nav.Sup.Ct.2008). In that case, this Court dealt with one of two petitions of concern in this action. The issue was whether the Navajo Nation Council (Council), in addition to the Navajo People, may independently make amendments to Section 102(A) of the Title 2 of the Navajo Nation Code to change the size of the Council. This Court held that the Council may not amend Section 102(A) independently; it must defer to the will of the Navajo People.

President Shirley, head of the Initiative Petition Committee, sought to have two measures placed before the Navajo People. On October 28, 2008 President Shirley submitted two initiative petitions to the Navajo Election Administration (NEA) for examination and signature verification. The first initiative petition is to allow the Navajo people to decide whether the Navajo Nation Council should be reduced from 88 to 24 members. The second initiative petition is to grant budget line item veto authority to the President of the Navajo Nation. On November 7, 2008 the NEA determined that both of the petitions failed to acquire the requisite number of signatures. The NEA calculated that 16,530 signatures were required, representing 15 percent of all 110,202 eligible voters as required by 11 N.N.C. § 404(B)(11). The Petition Committee had obtained 18,638 signatures for its first petition, of which only 14,273 were determined valid, and 18,002 signatures for its second petition, of which only 13,622 were determined valid. The NEA invalidated thousands of signatures on both petitions, finding, inter alia, that the signature belonged to unregistered voters or that they appeared more than once on the petition. On November 12, 2008, pursuant to 11 N.N.C. § 404(B)(13)(e), the NEA notified the Initiative Petition Committee of its notice of insufficiency.

President Shirley requested a review of the invalid signatures. On November 14, 2008 the NEA denied this request. On November 17, 2008, President Shirley filed a request for a hearing in the OHA, challenging the NEA’s insufficiency determination. Several months had passed and no hearing officer was appointed to preside over the matter. Rather, the Chief Hearing Officer of the OHA recused herself2 [243]*243and her later attempts to appoint other individuals as hearing officers were unsuccessful.3 On May 5, 2009, President Shirley filed a petition for writ of mandamus alleging the OHA failed and refused to carry out its mandated task, as required by 11 N.N.C. § 404(B)(13)(e), to expeditiously determine the sufficiency or insufficiency of the two initiative petitions at issue here. This Court issued an alternative writ of superintending control and held a hearing on May 14, 2009 in St. Michaels. At the hearing, the Court informed the parties of its proposal to appoint a district court judge as a hearing officer to oversee this election matter so it could be addressed expeditiously and without cost to the OHA and the parties. At the conclusion of the hearing, the Court issued a writ of superintending control. The Court issues this opinion to explain its decision.

II

The issues in this case are (1) whether it is necessary and proper for the Navajo Nation Supreme Court to issue a writ of superintending control in an election dispute where due to varying circumstances, the OHA failed to expeditiously appoint a hearing officer, set a hearing, and enter a decision within its review and (2) whether this Court may appoint a judge of the Navajo Nation Courts as a hearing officer in the OHA to superintend and render a decision in this matter.

III

The Supreme Court of the Navajo Nation has the authority to issue “any writs ... [njeeessary and proper to the complete exercise of [our] jurisdiction.” 7 N.N.C. § 303(A) (as amended by Navajo Nation Council Resolution No. CO-72-03 (October 24, 2003)). “Writs are extraordinary remedies issued only when there is no plain, speedy and adequate remedy at law.” Johnson v. Tuba City Dist. Ct., 7 Am. Tribal Law 566, 569 (Nav.Sup.Ct.2007). A writ is appropriate when a lower court or tribunal over which we have appellate review “abuses its discretion in such an egregious way that only immediate action by this Court will remedy the damage done to a party.” In the Matter of A.P., 8 Nav. R. 671, 678 (Nav.Sup.Ct.2005).

Furthermore, this court may use its writ authority when the issues at stake are “of significant impact throughout the Navajo Nation.” Id. In addition, such a writ may be appropriate to ensure public confidence in the Navajo Nation government. “The government of the Navajo Nation belongs to the Navajo people. A government cannot operate effectively unless the citizenry has confidence in its government.” Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159, 167, 3 Am. Tribal Law 508, 511 (Nav.Sup.Ct.2001), Finally, a writ of superintending control may be appropriate to protect this Court’s appellate jurisdiction. Chuska Energy Co. v. The Navajo Tax Commn, 5 Nav. R. 98, 102-103 (Nav.Sup.Ct.1986).

Petitioner alleges that more than five months have passed and OHA has failed and/or refused to conduct a healing as required by Navajo Nation law, and has failed and/or refused to appoint a hearing [244]*244officer to superintend this ease, despite repeated requests by Petitioner. OHA counters that Petitioner failed to prove that it refused or neglected to act to have this matter heard. OHA further asserts delays were due to Petitioner’s lack of cooperation. We agree with Petitioner. OHA abused its discretion in an egregious way such that only immediate action by this Court will ensure the timely appellate review of this election matter. We further find it necessary and proper for the Supreme Court to issue a permanent writ of superintending control because of the significant issues at stake and the need to protect public confidence and our appellate jurisdiction.

First, the issues at stake here are of significant impact throughout the Navajo Nation. The petition itself suggests a significant change in the structure of Navajo government by reducing the size of the Council and granting the President line-item veto power. But more importantly, the issues raised by the Petitioner involve the fundamental right of the People to participate in their democracy and determine their form of government. The concept of self-governance at an individual level and at the national level is expressed in Title 1 of our Diñé Fundamental Law and the Navajo Bill of Rights, Self-governance is an inherent right. 1 N.N.C. § 202(D), Self-governance is premised on the principle that “Diñé bi nahat’á is the foundation of the Diñé bi naat’á (government).” 1 N.N.C. § 202.

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Bluebook (online)
8 Am. Tribal Law 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shirley-v-office-of-hearings-appeals-navajo-2009.