Motion filed to dismiss lawsuit, reconsider ruling on election eligibility

BY BRITTNEY BENNETT
Former Reporter
04/23/2018 10:00 AM
TAHLEQUAH – Cherokee Nation citizen Michael Moore has filed a motion asking the District Court to reconsider its April 6 ruling regarding the election eligibility of Principal Chief Bill John Baker and Deputy Chief S. Joe Crittenden, as well as dismiss the petition that led to the ruling.

Moore, an attorney from San Diego, filed the April 13 motion asking the court to allow him to “intervene” and for it to “dismiss” a Feb. 19 petition by CN citizen David Cornsilk.

Cornsilk’s petition asked the court to overturn Attorney General Todd Hembree’s 2016 opinion declaring Baker and Crittenden eligible for candidacy in 2019 because neither had served a full four-year term after being elected in 2011.

Crittenden took office on Aug. 14, 2011, and assumed principal chief duties until Baker was sworn in on Oct. 19, 2011, following a disputed principal chief’s race.

Hembree on March 1 motioned to dismiss Cornsilk’s petition, but on March 26 filed a motion in favor of the court handing down a ruling. District Court Judge Luke Barteaux on April 6 ruled that Baker was eligible for re-election but Crittenden was not.

Moore’s filing asks Barteaux to reconsider and rule on Hembree’s original dismissal motion while rebuking Hembree’s March 26 motion to withdraw.

By withdrawing, Moore states Hembree essentially “attempted to waive sovereign immunity” that he “lacks authority” to do unless given permission by Tribal Council. Moore argues the burden of proof to show the CN waived its sovereign immunity to be sued is on Cornsilk, who “has not shown” any evidence of a waiver.

Moore also argues because “there is no issue or controversy,” the case is not “ripe” for a ruling, as “none of the parties in Cornsilk’s petition have filed to run for office.”

Moore asks that Cornsilk’s petition be declared “premature” because Hembree and Cornsilk are asking for an “advisory opinion” in regards to an interpretation of election law provisions in advance of an actual election.

“They shouldn’t be ruling on matters of speculation,” Moore said. “When it comes to Attorney General Hembree’s pleadings, he withdrew the issue that the court should have been deciding on in order to move his agenda forward, which was to have his opinion deemed legal...It was clever luring by the attorney general, but I hope that the district judge will reconsider the issue of ripeness and recognize that the issue is not ripe and dismiss the case for everyone.”

As of publication, neither Baker nor Crittenden had indicated they planned to run in 2019.

Moore states Cornsilk’s petition also “lacks subject matter jurisdiction” because it is without a “case or controversy” as required by the Supreme Court. Instead, it recommends Cornsilk should challenge Baker and Crittenden’s eligibility “when they actually file for a third term.”

Moore states the CN Constitution provides an “exclusive remedy” for challenging a candidate’s eligibility in Title 26, Section 37(A) or Section 37(B).

Section 37(A) allows any CN citizen who is registered to vote “the right to contest the eligibility of any candidate to run for office” at a hearing with the Election Commission, while Section 37(B) gives the right to appeal decisions concerning a candidate’s eligibility to the Supreme Court.

“In regards to Mr. Cornsilk’s pleadings, it’s all based on speculation,” Moore said. “There was no controversy at the time that he filed, and so people applauded him for filing it and moving forward and trying to have this resolved, but on this kind of issue when there is no controversy, for a non-lawyer to go in and try to have this matter decided, it creates problems.”

Cornsilk said he’s read Moore’s filing. “Basically what it looks like is he reiterated all of the motions to dismiss, the attorney general had filed and withdrew,” he said. “I think his timing is off because if he wanted to join the case he should have done it before the judge ruled or after we appealed. I don’t know why he’s trying to jump into mine, but the more the merrier and I’ll just leave it to the judges to decide whether or not to let him join the case.”

Attempts to contact the attorney general’s office were unsuccessful, though it did file an appeal in the Supreme Court on April 13 concerning Crittenden’s eligibility.

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