Judge denies Close request to stop recall election
MISSION – The recall election of David Close, Secretary of the Board of Trustees, will be decided Oct. 4 by voting members of the Confederated Tribes of the Umatilla Indian Reservation (CTUIR) following a ruling by Judge William Johnson that denied Close’s request for a temporary injunction that would have prevented the Election Commission from carrying out its duties.
The Judge based his opinions on the Constitution of the Confederated Tribes of the Umatilla Indian Reservation, which supersedes the Election Code.
Close filed his petition as both an individual and in his official capacity as BOT secretary. Judge Johnson ruled that Close could contest the action of the EC as an individual, but not in his official capacity as secretary of the BOT. Such actions require consensus from the full BOT, according to the Constitution.
His request to recuse the judge was denied because “there is no conflict of interest or other reason for disqualification” as Close contended.
Judge Johnson dismissed outright Close’s argument that the recall petition, signed by more than 250 members of the CTUIR, did not meet requirements of the Election Code as to specific charges, as to the form of the petition for recall, and that the BOT did not make proper findings and determinations required by the Election Code.
The Judge’s opinion also noted that in his petition Close claims it is a conflict of interest for any BOT members to sign the recall petition.
The Tribal Court granted the CTUIR’s motion for summary judgment, which means there were no disputes about the facts of the case and that it is not necessary to go to trial.
In his written complaint, Close contended that the EC should conduct an investigation into the election process because it did not follow requirements of the CTUIR Election Code. The EC asked for clarification from the BOT and received notice from the Board to proceed as required by the Constitution opinion.
According to the Judge’s opinion, the findings were that:
- The EC thoroughly did its job. The BOT reviewed the recall petition and made findings and determinations as to form and signatories and referred the matter to the EC for recall election. - Members of the BOT signed the recall petition and reviewed the petition for referral to the EC. This is not a conflict of interest under law or tribal policy. Ethical consideration can be made by each BOT member who signed.
- The charges contained in the recall petition are clear and in writing, pursuant to the Constitution. They are general and understandable, subject to response. The merit of such charges is determined by the electorate of the General Council. - On June 20, 2016, the BOT voted to approve the recall petition with findings and charges as set forth on the recall petition. This is a making of findings and determinations pursuant to the Constitution. - The BOT, during its deliberations and discussion, determined the recall petition was in proper form pursuant to the Constitution. It also determined it was not fully compliant with the Election Code in what it determined was technicality.
“The lack of technicality,” the ruling states, “is of what Dr. Close complains. The form required by the Election Code includes warnings, in capitalized bold 10 font print, about threats and coercion, and that signatures are final and may not be removed at a later time.”
However, the Court ruled, those technicalities are not contained in the petition for recall.
The opinion of the court is as follows:
“… The General Council has the power and authority to amend the Constitution to include provisions changing or restricting the recall process. Statutes or codes may be enacted without voter approval which bolster or are consistent with constitutional requirements. Any clause or requirement of any statute not consistent with the constitution is not enforceable.
“Such is the case here. The Election Code while bolstering the recall process is inconsistent by its added restrictions of warning and font size. The guarantee of a fair election is required by the Constitution and its requirements as to form. That has always been understood and practiced since the Constitution’s adoption. Any concerns about the purpose or need for such warnings in capitalization are addressed by criminal and civil laws, including regulation by the Election Commission. No suspect election conduct is evident.”