In an order issued at 4:15 p.m. Friday, May 17, the Cherokee Supreme Court granted a petition for writ of prohibition that McCoy’s attorney James Kilbourne had filed seeking to prevent a hearing the Eastern Band of Cherokee Indians Board of Elections had scheduled for May 21. The scheduled hearing, which could have ended with McCoy’s removal from the ballot, resulted from a protest of McCoy’s candidacy that Saunooke filed May 2.
According to the order, the petition was allowed “on the ground that this Court has previously decided this same matter, and that, to allow a new hearing this close to the June 6, 2019, primary election brought under a similar statute (Cherokee Code 1616-4.1, governing decertification of a candidate) with respect to the same underlying legal issues based on the same underlying incident in a matter that this court has already decided, would frustrate the Court’s order of April 29, 2019, violate fundamental fairness, and cause appellant to suffer irreparable harm.”
The order was signed by Chief Justice Kirk Saunooke and Associate Justice Robert C. Hunter, with Associate Justice Brenda Pipestem voting against her colleagues.
In her dissenting opinion, filed May 20, Pipestem said that the court had no jurisdiction to interfere before the board held its hearing and that preventing the hearing “stripped the rights” of tribal citizens to protest election certifications.
“Eastern Band of Cherokee citizens who are registered to vote have the right under Election Code to challenge the certification of a candidate for elected office,” she wrote. “The majority’s decision violates that right for purposes of ‘judicial economy’ and exercises jurisdiction where there is none.”
The order would have been McCoy’s final hurdle in what has been an unfolding struggle to get on — and stay on — the ballot for the Primary Election June 6.
But on Monday, May 20, Saunooke submitted his own petition to the court, seeking to intervene as a party in the case and have the court dissolve the order it had issued May 17. Saunooke submitted his order pro se — meaning, representing himself.
According to Saunooke’s petition, he was the “real party of interest” in the writ of prohibition, but yet he was given no notice of the proceedings.
“This Court considered the motions filed by the other parties without providing Saunooke with appropriate due process and an opportunity to be heard,” he wrote.
The failure of any party to include Saunooke in the filed writ of prohibition violates the Indian Civil Rights Act, he wrote, depriving Saunooke of his right to due process.
Saunooke also took issue with the majority opinion that the hearing should not proceed because the court had already ruled on “the same underlying legal issues based on the same underlying incident.” The protest “includes reference to other matters” as well, Saunooke wrote, listing three incidents in which McCoy had allegedly misused the power of her elected position and claiming that she lied on previous applications for candidacy by claiming she had never defrauded the tribe.
“Had Saunooke been property notified of this proceeding the Court would have learned of additional matters and allegations not previously considered by the Court or the Board of Elections,” he wrote.
The previous challenge to McCoy’s candidacy dealt with allegations that she defrauded the tribe when she accepted a $1,500 payment from the University of Alabama in 1996. The payment included a $1,000 consultation fee as well as $500 for travel expenses, though she had also received a travel advance from the tribe. The Tribal Council at the time held a hearing on the matter and declined to discipline McCoy, who two months later was the top vote-getter in the race to represent Big Cove on Tribal Council. She was certified to run in every election thereafter through 2015, after which she retired until deciding to run for chief in 2019.
Based on an investigation into the events of 1996, the election board declined to certify her this time around. The board upheld its decision following a hearing April 9, but when the Cherokee Supreme Court heard the matter April 29 it overturned the board’s decision, ordering McCoy’s certification as a candidate. A written opinion explaining the court’s decision-making process is forthcoming.
While Election Day is not until June 6, voting has already begun. Absentee voting started May 1 and early voting began May 13. It will continue through May 27.
In his response, Kilbourne took issue with Saunooke’s claim that his lack of inclusion in the writ of prohibition violated his due process rights, as the granting or rejecting of the writ would not deprive him of life, liberty or property. Kilbourne also argued against the assertion that because Saunooke’s protest involves “reference to other matters,” it should trigger a new hearing before the board.
“While Saunooke’s motion contains a reference to several allegations, none of the claims, however salacious, raise any additional legal issues regarding the certification of Teresa McCoy,” Kilbourne wrote. “While Ms. McCoy denies each of these claims alleged in the protest, they are only relevant to an election attack ad rather than a protest of certification.”
The court did not conclude that Saunooke’s protest is the same as the protest it had already considered, Kilbourne said — only that the “same underlying legal issues” were at play.
Kilbourne also questioned whether Saunooke should have the right to file a protest related to the University of Alabama episode at all, as he was Tribal Council’s legislative counsel in 1996.
“His protest alleges that he received certain information from a member of Tribal Council while acting as an attorney for the Tribal Council,” Kilbourne wrote. “This raises complex issues of client confidentiality and conflict of interest that are unique to Saunooke and which could arguably prevent him from participating in a protest against Teresa McCoy.”
As of press time, the court had not yet issued its ruling on Saunooke’s petition.