On May 2, the day after the election board certified McCoy in response to an April 29 order from the court, the board received a formal protest of that certification. A hearing is scheduled for May 21 — just 17 days before the June 6 Primary Election — but McCoy is seeking to have the protest dismissed without a hearing through a petition for a writ of prohibition her attorney James Kilbourne filed with the Cherokee Supreme Court May 10.
Request for decertification
“I have information, which I have attached to this protest, indicating that Ms. McCoy is not qualified to run as a candidate and should be decertified by the board,” reads the protest letter tribal member Robert Osley Saunooke wrote to the election board. “This information centers on Ms. McCoy’s actions in defrauding the Tribe of funds during a period of time that I was acting as Legislative Counsel for the Tribe. It is my belief that Ms. McCoy covered this information up, failed to disclose it to prior election boards, and utilized the help of others to hide this information knowing that it would disqualify her from holding or running for office.”
McCoy provided The Smoky Mountain News with a copy of the protest. The election board did not respond to a request for the document.
The April hearings were held pursuant to tribal law in Section 161-4(c) that allows would-be candidates to appeal should the election board decline to certify them to run. McCoy appealed to the election board in an April 9 hearing and then to the Cherokee Supreme Court, which ordered her certification April 29.
Saunooke filed his protest under Section 161-4.1, a separate process that deals with decertification of a candidate who has already been certified.
“I agree with the Supreme Court’s decision. It was based on minimum due process,” said Saunooke. “Whoever advised the election board did not consider or advise the board on the manner in which a hearing should be conducted. At a minimum Ms. McCoy should have had the chance to hear and confront the evidence as it was presented. Also, no one was under oath. If the Supreme Court had not taken issue with this it would allow any person to simply make up some allegation against a candidate in the future. That is not the case here and I want to make sure that a full hearing, with sworn testimony under oath, including testimony by Ms. McCoy (who was not under oath during the election board hearing) occurs. The election board can then decide what to do.”
According to a transcript of the election board hearing, McCoy, as well as the witnesses she called to testify, were under oath. However, interviews that the election board conducted prior to the hearing, including one with Saunooke, were not done under oath. The election board did not disclose the existence of these interviews, or their contents, to McCoy prior to her hearing, according to testimony before the Cherokee Supreme Court.
While the court issued its order in the case on the same day as the hearing, it has yet to issue an opinion explaining the reasoning behind that order.
Saunooke’s protest deals with the same series of events questioned during the initial hearings.
In 1996, McCoy and her sister-in-law Kathie McCoy attended a Native American Graves Protection and Repatriation Act consultation at the University of Alabama. At the time, McCoy represented Big Cove on Tribal Council and Kathie McCoy was the tribe’s NAGPRA representative. Both women received a travel advance from the tribe to pay for food and lodging, with Kathie McCoy also receiving compensation for mileage; McCoy’s advance was $432 and Kathie McCoy’s was $475.80.
However, the University of Alabama later mailed checks to the two totaling $1,500 apiece. The payment included a $1,000 consultation fee as well as reimbursement for mileage, lodging and meals, according to vouchers the university prepared as copied in the election board’s investigation.
The election board said that the incident qualified as defrauding the tribe, because when McCoy accepted the university’s travel reimbursement tribal funds had already been expended to cover those costs. She should have repaid the travel advance to the tribe and diverted the consultation fee as well, since she was already being compensated for her time as a Tribal Council representative, the board said in its letter withholding certification, adding that McCoy had “aided, abetted or encouraged another to defraud the tribe” when she cashed Kathie McCoy’s check for her.
In addressing the Supreme Court, McCoy’s attorney James Kilbourne said that the election board had “oversimplified” the definition of fraud, failing to point to a single statement McCoy made that was knowingly false. She was entitled to her travel advance when she received it, and there is no evidence that she knew the payment from the university included compensation for expenses in addition to the consultation fee, he said. During the hearing, no policy that would have been effective in 1996 was brought forward to show that McCoy would have been required to reconcile her expenses after travel occurred. Tribal Council held a hearing on the issue in June 1997 and declined to discipline McCoy, who was the top vote-getter in Big Cove during the election two months later.
Contents of the protest
In his letter to the election board, Saunooke lists six people who he plans to call as witnesses before the election board. Saunooke names former Principal Chief Michell Hicks, who was the tribe’s finance director in 1996; Tribal Prosecutor Justin Eason; Neil Ferguson, who investigated the incident for the Cherokee Indian Police Department at the time; Secretary of Finance Cory Blankenship, Kathie McCoy and himself. Of the six, Kathie McCoy was the only one to testify during the April 9 hearing.
Saunooke alleges that McCoy’s conduct makes her unfit to hold office and believes holding a new hearing before the election board will be an important opportunity to place McCoy under oath and ask her questions about the alleged fraud. Teresa McCoy’s name does not appear on the list of witnesses, however.
“She can be truthful or she can commit perjury,” he said. “Either way the truth will come out and if the board decides to certify her the people can then decide to elect her by being fully informed of her duplicity and dishonesty.”
The packet of supporting documents Saunooke attached to his protest is very similar to the original investigation on which the board based its decision not to certify McCoy in April. In fact, it is identical save for four sheets that deal with $548.20 Kathie McCoy received from the tribe for travel expenses during two trips in 1995 and 1996.
The only other difference is the absence of a verification sheet, signed by McCoy attesting that the “verified complaint and the allegations therein” were “true to the best of his own knowledge” and dated April 6, 2017, included as page 40 of the original investigation. The string of numbers at the bottom of the sheet showed it actually matched a case McCoy filed against Tribal Council in 2017 — during the April 9 hearing, Lori Taylor, a paralegal in McCoy’s case, told the election board it was “criminal” to relocate a verification sheet like that.
Saunooke said he had no idea where the initial documents in the investigation came from but that in compiling his protest he took some of the records he had kept from his office when acting as legislative counsel for the tribe and added those to the documents that are now part of the public record following the April 29 court hearing.
According to the board’s filed response to Kilbourne’s petition for a writ of prohibition on the hearing, Saunooke’s protest will encompass more evidence than that contained in the original investigation.
“Saunooke alleges he has a firsthand account from his time as the Tribe’s Legislative Counsel to give the Board,” the document says. “He also alleges a pattern of misconduct by McCoy which includes her covering up information, failing to disclose information to prior Election Boards, and utilizing the help of others to cover information up. Furthermore, he lists at least two new witnesses whose names do not appear anywhere in the prior record of the Board filed with the Court on April 26, 2019.”
For her part, McCoy has continuously contended that she did nothing wrong in 1996 and that her issue with certification this time around has more to do with politics than with evidence — McCoy has been certified to run in every election between 1997 and 2015, despite the fact that the payment from the University of Alabama was public knowledge and the subject of a 1997 hearing before Tribal Council, which was reported as a front-page story in The Cherokee One Feather at the time.
“This has to stop,” she said. “This spiteful, vengeful behavior from someone who presents himself as a professional. It has to stop.”
Back to court
In a petition for a writ of prohibition filed May 10, Teresa McCoy’s attorney James Kilbourne laid out multiple reasons why he believes the Cherokee Supreme Court should prevent the Eastern Band of Cherokee Indians Board of Elections from holding a hearing that could result in McCoy’s decertification from the race for principal chief. The board, in turn, gave its reasoning for why the petition should be denied in a response filed May 13 and signed by attorneys Chris Siewers and Geoffry Strommer in addition to Interim Attorney General Mike McConnell.
Timing of the protest
Kilbourne argues that Saunooke’s protest is invalid because it wasn’t filed until May 2. Tribal law lays out two timelines for the filing of certification protests — within 30 days of the last day candidates can be certified, and within five days after publication of the preliminary unofficial candidate list. As stated in the law, March 31 is deadline to certify candidates, so May 2 would fall more than 30 days afterward; it has also been more than five days since The Cherokee One Feather published the preliminary candidate list, Kilbourne said. The law also enables the election board to decertify a candidate at any time before the election if that candidate “no longer meets the applicable eligibility requirements.” However, no longer meeting the requirements “requires that there be a change of circumstances or newly discovered evidence” after the initial certification, Kilbourne wrote.
The board’s attorneys say that “unambiguous” language in Cherokee law allows the election board to act at any time before a primary election, and that “a change of condition or newly discovered facts” is not a requirement — “the only way for the Board to determine if new information and evidence will be presented is to move forward with the scheduled hearing and make that determination,” the attorneys wrote. Additionally, Saunooke’s protest met the deadline, because while it did not occur within 30 days of the March 31 deadline, it did occur just one day after McCoy was actually certified by the board. In order to have filed a protest within 30 days of March 31, they argued, Saunooke would have had to file his protest of McCoy’s certification before she was actually certified. As to the five-day deadline, the attorneys say it’s unclear what that means, as the only list of candidates the board is required to publish, as per Cherokee law, is the list of candidates for primary election required to appear in The Cherokee One Feather by May 10 — that the five-day deadline refers to five days after May 10 is “the only reasonable interpretation.”
McCoy is already on the ballot
Early and absentee voting have already begun; ballots are already printed with McCoy’s name on them. In the 2004 case Saunooke v E. Band of Cherokee Indians, Kilbourne wrote, the court ruled that the election board does not have authority to decertify a candidate who is on the ballot, setting a precedent that applies in this case.
The Saunooke decision does not apply, the board’s attorneys say, because that case arose after voters elected Bob Blankenship to Tribal Council but before the election board certified the results. In that case, the court found that the board overstepped its authority by not certifying the votes on the basis of Blankenship’s qualifications for office. The vote certification process exists to attest that votes are authentic, not to recertify a candidate’s qualifications for office. McCoy has not yet been elected to office, so her situation is not parallel to that found in Saunooke, the attorneys say.
The legal doctrines of collateral estoppel and res judicata prevent defendants from having to re-litigate an issue that’s already been decided in court. Kilbourne believes the May 21 hearing will constitute a rehashing of an issue that’s already been ruled on by the court, which “conclusively determined Teresa McCoy as a candidate for Principal Chief.” In addition to the recent hearings before the election board and Supreme Court, Kilbourne wrote, the issue was also heard and dismissed by Tribal Council in 1997, and the election board has certified McCoy in every election in which she has run since 1997.
These doctrines don’t apply in McCoy’s case, the board’s attorneys wrote, because res judicata and collateral estoppel require that the actions in question involve the same parties, or parties that are acting in concert. The first action did not involve Saunooke, and “there is no privity” between the board and Saunooke, so the doctrines don’t apply, the attorneys wrote.
Standard of proof
One of the issues discussed amply during the April 29 hearing was the lack of a uniform standard of proof used by election board members in determining whether McCoy should be deemed to have defrauded the tribe and therefore be ineligible for candidacy. That lack of clarity has not been rectified, wrote Kilbourne, and “the lack of a clear standard violates substantive due process.”
No final determination
McCoy “jumped the gun” by filing a writ for prohibition, the board’s attorneys wrote in their response, because the board has not yet held the hearing related to Saunooke’s protest or determined what its outcome should be. The Supreme Court can only review a “final determination” from the election board, they wrote — it can’t intervene in a pending administrative action.