Sloan denies Shirley bid to block judge question

By Noel Lyn Smith
Navajo Times

WINDOW ROCK, Oct. 14, 2010

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Judge Allen Sloan has declined the request by President Joe Shirley Jr. to issue an injunction preventing the referendum on electing Navajo Nation judges from appearing on the Nov. 2 ballot.

Sloan issued his decision Oct. 11 following a five-hour hearing Oct. 8 in Window Rock District Court.

"Having considered the evidence presented at the hearing and being otherwise fully advised in the matter, the court enters its order denying the application," Sloan wrote.

Shirley said he would appeal the decision to the Navajo Nation Supreme Court once Sloan issues his written ruling explaining his decision. That explanation had not been released as of press time Wednesday.

Meanwhile early and absentee voting is back on schedule after being suspended Oct. 4 when Sloan issued a temporary restraining order pending the hearing.

Edison Wauneka, director of the Navajo Election Administration, said his office restarted the early walk-in voting process and is issuing absentee ballots.

Once word reached the election office late Monday afternoon, about 200 absentee ballots were mailed out.

"Hopefully there is no more interference with the election process," Wauneka said.

Wauneka's staff is now awaiting the official ballots for the Nov. 2 general election to arrive from the printer, located in the Albuquerque suburb of Rio Rancho.

Any ballots cast before the Oct. 4 restraining order will be counted, including the question on electing judges.

Wauneka said each NEA office has a copy of the 36-page referendum and that it is available for review on the Web at

On Wednesday the president's office issued a detailed critique of the referendum, a copy of which is available at under "press releases." (The title is "Window Rock District Court denies preliminary injunction to remove 'hidden agenda' referendum from election ballot.")

Wauneka said the next step is to see if the Navajo Nation Council will approve funding to pay for public education on the referendum, which would make sweeping changes to three sections of the Navajo Nation Code.

There is very little time left to educate voters about all the changes that would come from the referendum, and neither the council nor the Navajo Board of Election Supervisors has taken any action to do so, said Kiersten Murphy, Shirley's lawyer.

Murphy said that it took her more than an hour to read the referendum bill before asking Navajo Board of Election Supervisors Chairman Larry Biltah why NBOES approved simple ballot language that does not completely explain the impact the referendum would have on Navajo law.

She noted that the ballot language does not mention revisions to the qualifications to become a judge or justice, their salaries and retirement benefits, and the composition of the courts.

Biltah said NBOES based its decision to approve the ballot language in accordance to the law.

NBOES Vice Chair Jonathan Tso agreed, pointing out that it is the board's duty to simplify ballot language so each voter, regardless of education level, could understand it.

"We could be out there today educating the public," Tso said. "Instead we a being in here fighting this."

Backers of the referendum promised NBOES that the Council would appropriate money for the public education drive, but it has not done so. Election officials also admitted that they had not created any materials for such a presentation.

Tso said if the Council approves the funding, part of it would be used to pay for additional poll workers who would answer questions pertaining to the referendum on Election Day at the polling locations.

Michael Upshaw, NBOES attorney, said in his opening statement that the election board did everything by the book.

"All they have done is follow their responsibilities and duties under the Navajo Nation Code," Upshaw said.

Throughout the hearing, Shirley's lawyers argued that the referendum was invalid because it was not submitted to the president for review after the Council approved it in July.

They also asserted that the referendum violates Fundamental Law, k'é, due process, and the separation of powers.

Lawyers for the Council and the NBOES argued that the referendum did not have to go before Shirley for his review and consideration because it did not enact new laws.

They also stated that referendums proposed by the Council or by chapters do not need presidential approval before going to voters.

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