Judge issues restraining order to stop council election

District Court Judge Carol Perry on Tuesday evening issued a temporary restraining order to halt the election of an 88-member Navajo Nation Council.

Perry issued the TRO at the request of former Hardrock/Piñon Delegate Eddie Arthur, who explained at a Tuesday afternoon press conference that he has filed a lawsuit to stop tribal election officials from proceeding with the election unless it's for a 24-member council.

The lawsuit names Edison Wauneka, director of the Navajo Election Administration, as defendant.

Arthur sought the TRO to stop tribal election officials from accepting applications from candidates to fill the current 88 council seats, which Navajo voters said should be reduced in a Dec. 15 special election.

The election is under challenge and the Navajo Board of Election Supervisors has not acted to redraw the council districts, so the 2010 election has been proceeding on the basis of an 88-seat council.

"The Navajo people voted overwhelmingly on Dec. 15, 2009, to reduce the council to 24 delegates and to give line-item veto authority to the office of the president as a check upon the runaway spending by the council," Arthur said as he read from a two-page statement.

"Rather than implementing the vote of the people, Mr. Wauneka, acting as the puppet for the speaker's office and the council, has decided to disregard the Navajo people's vote and called for an election to re-elect an 88-member council. This is wrong!" Arthur stated.

Perry's order specifically prohibits Wauneka from following the legal advice or opinions of Chief Legislative Counsel Frank Seanez if it conflicts with the legal advice or opinions of Attorney General Louis Denetsosie or the tribal courts.

"I have a short comment and that is that the Office of the Chief Legislative Counsel has yet to receive service of any pleadings in this matter," Seanez said Wednesday. "And the Office of Chief Legislative Counsel's response will be through the courts."

At press time Wednesday, Wauneka had not responded to several phone messages from the Navajo Times.

Arthur asked the court to grant a temporary restraining order "without notice" to the defendant, a legal tool intended to stop an imminent threat to the petitioner. A TRO is an emergency measure that has effect only until a hearing can be held on a preliminary injunction, at which point the petitioner faces the burden of convincing the judge that harm will result from not granting the injunction.

Arthur is represented by former Navajo tribal attorney Jim Fitting, now in private practice in Albuquerque. Fitting said the TRO does not affect the election for tribal president and vice president.

Fitting noted that the lawsuit and petition to Perry for a restraining order did not involve the presidential election.

The election office began issuing candidate packets for the council and president races on Feb. 4. May 15 is the deadline to file for the Aug. 3 tribal primary election. The general election is Nov. 2.

Judge Perry set a hearing for May 7 at 9 a.m., where she will rule on issuing a preliminary injunction. If granted, the preliminary injunction would replace the TRO and stay the council election until a trial to determine if the injunction should be vacated or made permanent.

Arthur stated in his lawsuit that if the council elections were allowed to proceed, 88 delegates would take office in January and serve until January 2015, which would delay the effect of the Dec. 15 council reduction vote and possibly allow the delegates to continue trying to overturn the election, as the current council has attempted to do in the months since the special election.

In a town known for its tangled relationships, this case tangles them further. All of the principal players have a history with each other.

Besides his past council membership, Arthur has been serving as chairman of President Joe Shirley Jr.'s Government Reform Task Force, which spearheaded the signature drive on two voter initiatives to reduce the council and expand the veto power of the tribal president.

And years before that, Arthur and Wauneka were allies in the fight to keep the council from awarding pay raises that were not approved by the voters.

In August 2000 Arthur, then Council Delegate Edison Wauneka, and a small group of tribal members successfully sued the council to stop a $10,000 pay raise the delegates had voted for themselves, the president and vice president.

Wauneka announced he was a candidate for tribal president in December 2001, and Arthur was there to support him as head of the Diné for Better Government.

As a presidential candidate, Wauneka pointed to his success at getting the council to put a referendum on the ballot to let voters choose what size council they wanted. The referendum asked voters to choose the size they most preferred, and offered seven alternatives:  24, 32, 44, 48, 72, 88 or 110 delegates.

(Then as now, a majority of voters endorsed a 24-member council, but as a council referendum approval by a majority of all registered voters was required, so it failed.)

And when Wauneka was a delegate pushing for council reduction, it was Perry - then the tribe's elections director - who came under fire from the council. The council was unhappy that the referendum vote and the general election were not held on the date directed by tribal law, which was Aug. 1, 2000.

The election officials said they didn't have the money to hold the election at that point. Then Attorney General Levon Henry and then Chief Legislative Counsel Steve Boos each stated in separate opinions that Navajo law did not allow the postponement of the general election because of the lack of money.

As a subtext to the official dilemma, proponents of council reduction wanted the vote delayed in order to build support among the voters, while many on the council felt just the opposite.

In August 2000, the council ordered Perry's removal and voted to put the Navajo Board of Election Supervisors under the Intergovernmental Relations Committee.

Perry managed to hang onto her job in the changeover but she was put under the supervision of then Legislative Services Director Rose Graham. After the election finally took place in September 2000, she resigned as elections director.

Nine years later, it was Perry, appointed by the Navajo Nation Supreme Court, who heard the case involving Shirley's initiative to reduce the council and on June 25, 2009, ordered a special election held within six months.

On Dec. 15, 2009, a majority of those voting supported council reduction, prompting a fresh legal battle over the fact that a supermajority had not voted for it.

Timothy Nelson of Leupp Chapter raised that issue in his challenge to the election, naming Shirley and the initiative committee as defendants. The complaint was dismissed by a tribal hearing officer on grounds Nelson had named as defendants people who had no control over the election, and left out those who did, namely NBOES and the election office. Nelson, assisted by $50,000 the council gave him to hire a lawyer, immediately appealed the dismissal to the Supreme Court.

In March, Arthur filed a 38-page amicus brief in support of the hearing officer's decision to dismiss Nelson's complaint, and urging the court to certify the election results.

The Supreme Court is scheduled to hear oral arguments in the election case Tuesday, April 20, at 10 a.m. at the Navajo Nation Museum. The hearing is open to the public.

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