OPINION: Attorney General ignores authority of Independent Press Act
Attorney General Todd Hembree recently released an opinion that wrongly affirmed the two-year term of an Editorial Board member. In doing so, he ignored the will and intent of the Independent Press Act.
The issue provoking the opinion began in January of 2012 when Clarice Doyle, a Cherokee Nation citizen and director at Rogers State University, was appointed to the Editorial Board to replace board member Dan Agent. Doyle was Principal Chief Bill John Baker’s nomination to the board and was unanimously confirmed by the Tribal Council.
Soon after her appointment it was discovered that the appointment resolution was drafted in error. The resolution stated that her board term expired in October of 2014, giving her a term less than the term required. The Act explicitly states: “terms of office of the Board members shall be six years.”
Upon discovery of this error, the board directed me to bring it to the attention of the appropriate authorities in order to correct the mistake. I initially discussed it with Hembree who described it to me as a “scrivener’s error,” which is an inadvertent mistake that changes the meaning of the document but does not occur from reasoning or determination. Hembree assured me he would address the mistake.
Later, I discussed the mistake with Council attorney Dianne Barker-Harrold during a phone call. She said that she was on a business trip in Alaska but that she would look into it when she returned.
I also discussed the mistake with Council Speaker Tina Glory-Jordan during a meeting with her in her law office. I shared with her a copy of Doyle’s appointment resolution and a copy of the Independent Press Act with the relevant language highlighted. She assured me that she would look into it.
The mistake was not corrected despite these assurances.
In September, Doyle was informed by a Cherokee Nation Businesses employee that her term was ending and that she would not be reappointed. Doyle then sent a message to me and the Editorial Board members informing us of her departure from the board.
I contacted Hembree and revisited our earlier discussion. Rather than acknowledging the error, he said that there should be a determination about whether the appointment resolution or the Independent Press Act was the legal authority in determining Doyle’s board term.
I argued that the language in the statute was clear in its intent: Editorial Board members were to serve six-year terms. The only two exceptions provided in the Act were for the initial appointments for Seats 4 and 5 when the board was expanded to five seats in the 2009 amendment to the Act.
However, I reasoned that those exceptions did not apply to Doyle’s appointment because those seats had already been appointed to members Jason Terrell and Robert Thompson, respectively. Doyle was replacing a board member and was entitled to a normal six-year term.
Hembree released his official opinion (2014-CNAG-03) several weeks later. It is an interesting read and I encourage all Cherokee citizens to read it themselves. I have several concerns about its factual accuracy and legal analysis.
The first section, titled “Factual Background,” contains numerous factual errors that are easily corrected with a little bit of legislative research.
In the third paragraph it is stated: “John Shurr was appointed by the three other board members to serve a six year term in April of 2010.”
This is incorrect. Shurr was already seated on the board and was reappointed. Shurr was reappointed by the four other board members: Gerald Wofford, Agent, Terrell and Thompson.
It goes on to state: “With the addition of John Shurr, the Board now had four members.”
This is incorrect. With the reappointment of Shurr, the board had five members.
The paragraph then concludes: "… It appears that no one has been appointed to Seat 5 …"
This is a conclusion derived from the previous incorrect statements. After the Act was amended to add two seats to the Editorial Board, it is reasonable to assume that the next appointment, Terrell, was appointed to fill Seat 4, and the following appointment, Thompson, was appointed to fill Seat 5. Both of these appointments were additions to the board. At the time of Thompson's nomination there was one open seat to fill and it’s reasonable to assume it was the Seat 5 described in the amended Act. Thompson did not replace a seated board member but was an addition to the board. He joined members Wofford, Agent, Shurr and Terrell.
This “factual” background lays the foundation for the next section, “Legal Authority and Analysis.” Curiously, this section does not address or even mention the authority of the Independent Press Act. It is the Act that created the board, and it is the Act that stipulates the requirements, limitations and duties for service on the board. Yet its authority is completely absent in the legal analysis.
Hembree opines that there is no ambiguity in the language of the resolution, therefore it is outside the purview of his office to change the term of the appointed office. He correctly asserts that can only be done by the legislative or judicial branches. The important legal point that he fails to address is whether the unambiguous language of the resolution complies with the will and intent of the Independent Press Act, which specifically governs the board terms.
The Tribal Council spoke when it created and then amended the Act in 2000, 2001, 2005 and 2009. In each version of the statute, the same phrase is present: “The terms of office of the Board members shall be six years.”
The appointment resolution is subservient to the statute, and it is a legal axiom that resolutions must be compliant to the relevant statute.
Hembree’s analysis did not examine the relevant and specific language in the Act necessary to place the resolution in a legal context. By disregarding the authority of the Act, a disservice has been done to the government that enacted it, to the Cherokee people who depend on it for a free press, and to all tribal nations that look toward the Cherokee Nation as a beacon of truthful reporting and good governance.
It is concerning to see the Attorney General issue an opinion based on a flawed and inaccurate background analysis because it is his duty to ensure his legal opinions are true and correct. But as an advocate for an independent Cherokee press, it is truly disturbing for me to then see the authority of the Independent Press Act disregarded in a matter as important as the proper determination of an Editorial Board term.
Our free press is only as strong as the law that protects it, and the law can only protect it if it is enforced. It is important that the people hold our public officials accountable to enforce the Independent Press Act so that our historic legacy of independent journalism and press freedoms are preserved. Click here
to read Attorney General Todd Hembree’s opinion.Click here
to go to the Office of the Attorney General website.