No. SC-CV-68-14 SUPREME COURT OF THE NAVAJO NATION Dale Tsosie and Hank Whitethorne, Petitioners, Navajo Board of Election Supervisors and ‘The Navajo Election Administration, Respondents, ORDER Before, YAZZIE, H., Chief Justice, SHIRLEY, E., Associate Justice, and PLATERO, W.J., Associate Justice by Designation, An original action for a writ of mandamus against the Navajo Board of Election Supervisors and the Navajo Election Administration concerning Cause Nos. OHA-EC-005-14 and OHA-EC-007- 14, Chief Hearing Officer Richie Nez, presiding. David R. Jordan, Gallup, New Mexico, for Petitioner Dale Tsosie: Justin Jones, Farmington, New Mexico, for Petitioner Hank Whitethorne: Michael P. Upshaw, Scottsdale, Arizona, for Respondent Navajo Election Administration; Kellie A. Peterson, Flagstaff, Arizona, for Respondent Navajo Board of Election Supervisors; Marianna Kahn and Steven C. Boos, Office of Legislative Counsel, Window Rock. Navajo Nation. for the Navajo Nation Council: James W. Zion, Albuquerque, New Mexico, for Joe Shirley. Jr-; Russell Begaye, Window Rock, Navajo Nation, pro se: and Frankie Davis, Provo, Utah, pro se. On October 23, 2014 the Court entered a Permanent Writ of Mandamus against the Navajo Election Administration (NEA) and the Navajo Nation Board of Election Supervisors (NNBOES), ordering compliance with 11 N.N.C. § 44 by immediately reprinting the ballots for the 2014 presidential election without the name of the disqualified candidate, Christopher C. Deschene. On October 31, 2014, in an Order to Show Cause proceeding to enforce the Permanent Writ of Mandamus, the Court found 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 indirect civil contempt and removed them as Navajo Board of Election Supervisors for failing to comply with the Court’s October 23, 2014 order, and violating Navajo Nation Election laws. On December 30, 2014, the 22"" Navajo Nation Council enacted two legislations: Res. CD-80-14 and Res. CD-81-14. Resolution CD-80-14 authorizes a special presidential run-off election and a special general presidential election for the office of the president that includes Deschene, essentially nullifying the 2014 primary election results for the office of the president Resolution CD-81-14 pardons and reinstates the previously removed Navajo Nation Board of Election Supervisors. Having recognized the resolutions being in direct conflict with the Court's October 23, 2014 and October 31, 2014 orders to proceed with a yeneral election as provided for in LE N.N.C. § 44, the Court allowed briefing on the validity of the two resolutions passed by the 22" Navajo Nation Council. In lieu of submitting points and authorities on the validity of the two resolutions, the 23% Navajo Nation Council as well as the Navajo Nation Department of Justice urges the Court to Participate in buqyut’ in attempt to reach a consensus of the underlying issues. Though “talking things out” is certainly supported by fundamental law, the Court denies the requests for setting up and participating in haavar i, given the unique and special circumstances of this case. First, the Court is not a party to the case qu tioning the validity of the resolutions. Judicial review of legislative actions is mandated by Navajo law and an exclusion of judicial review is precluded, or otherwise illegal. Halon v. MacDonald, | Nav. R, 189, 203-206 (Nav. Ct. App. 1978) (“When the Navajo Tribal Council adopted Title 7 it did not exclude review of Council actions from its broad grant of power to courts.) The Court is thus prohibited from surrendering its right and authority of judicial review as if a party whose essential duties aresubject to agreements by litigants, This Court was petitioned to render a decision on the legality of Council's actions and “when called upon to do so in a proper case, the Courts may not decline the obligation”. Halona v. MacDonald, | Nav, R. 341, 351 (Nav, Ct. App. 1978). Second, not all parties are in agreement to “talking things out.” Obviously skeptical of Council's sincerity in asserting huyaat ? as a viable method for resolving the dispute properly before the Court, Petitioners and Candidates Joe Shirley Jr. and Russell Begaye each expressed objections to participate. Furthermore, the NEA stated “the validity of such legislation should be addressed so [Director Edison} Wauneka and NEA can act accordingly." Respondent Wauneka's and NEA Response to Motion for Contempt at | (January 16, 2015). The Court consistently held that talking things out in the spirit of peacemaking is voluntary and no person is forced to participate. fv the Matter of Quiet Title 10 Livestock Grazing Permit No, 8-487, SC-CV-41-09 (Nav. Sup. Ct. December 29, 20111) (Attorney fees and costs cannot be based on a party's refusal to participate in family meetings and peacemaking as such participation is voluntary.) Finally, any agreements reached through buayat i must also comply with Navajo law. See Estate of Kindle, 8 Nav. R. 150 (Nav. Sup. Ct. 2001) (The judge is the gatekeeper who makes certain the law was followed before adopting an agreement made during peacemaking into an order of the court.) As more fully discussed in a subsequent written opinion, the Court settled the validity of 11 N.N.C. § 8(A)(4) and has already rendered a decision on the matters that the Council and the NDOJ claim to remain subject to baavat i, e.g. who will be candidates for the Office of the Navajo Nation President and whether previously removed Navajo Nation Board of Election Supervisors can resume participation in the 2014 presidential election, The Court having already rendered a judicial decision as to these matters, any agreements through baayad ‘ito revisit or even circumvent settled Navajo law, particularly the Navajo Nation Election Code, cannot and will not be considered by this Court Time is of the essence as a valid election is of the utmost priority. Setting a time and place for “talking things out” that includes essential parties who do not wish to participate on futile, Therefore, the Court will render matters that have already been addressed by this Court is a decision on the record. The parties were given ample opportunity to thoroughly brief the Court. The Amicus Curiae brief filed by Frankie Davis is accepted. ‘The Motion for Reconsideration filed by the NNBOES remains pending with the Court, All objections or concurrences to this recent motion filed by NNBOES shall be filed no later than Thursday, February 12, 2015 by 5:00 P.m. Furthermore, no oral argument will be held. Therefore, the Motion for Reconsideration filed by the Office of Legislative Counsel to allow Mr. Steven Boos to present oral argument is moot. An opinion with regard to the validity of the two aforementioned resolutions will be issued at the earliest opportunity. Ye Dated this // tay of February, 2OY5, = ‘ aed this // “tay of Fel Wie Gazer Aa Associate Justice telephonically approved) Associate Justice