ENDORSED FILED IN MY OFFICE THIS

IN THE PUEBLO OF ISLETA APPELLATE COURT PUEBLO OF ISLETA, JUL 0 91 . -0/ ISLETA, NEW MEXICO

MEIN iSILTA TRUK COURT

Z A CC /2_ -0/4-

Diane L. Peigler,

Petitioner Appellant,

v.

Pueblo of Isleta Tribal Council,

Respondent-Appellee

LEGAL BRIEF

Diane L. Peigler 92 Tribal Road 10 Bosque Farms, New Mexico 87068 (505) 315-0590

TABLE OF CONTENTS

ARGUMENT Page 1

I. Analyzing the 1947 Constitution and the amendments of 1970 and 1990, and reading all the relevant provisions together, it is clear that Article VII, Section 2c applies to any "elected officer" of the pueblo, and that "any elected officer of the pueblo" includes any elected tribal council member, not only "elected officers of the Council" Page 1

a. The 1947 Constitution provides clear evidence that the word "officer" includes any official position, either elected or appointed, within the tribal government Page 1

b. The 1970 Constitution provides the first provisions on "Removal and Recall" and plainly distinguishes the steps to unseat an appointed officer and an elected officer. The meaning of elected "officer" of the pueblo remains consistent with the 1947 Constitution Page 3

c. The current Constitution includes an important substantive change from the 1970 Constitution related to how tribal council members are selected, through election of all 12 members. This change increased the potential use of Art. VII, Section 2c to unseat "any elected officer of the pueblo" because there are now 12 such officers on council. The meaning of elected "officer" of the pueblo still remains consistent with the 1947 Constitution Page 9

d. The meaning of "any elected officer of the pueblo", as referred to in Art. VII, Section 2c and Section 2d has never been narrowed to mean only "elected officers of the Council", as argued by the Appellee Page 10

II. It is clear that Section 2c mandates a referendum election be held to allow the voters who voted in the preceding election to participate in the potential unseating of an "elected officer of the pueblo" . Page 15

111. As a matter of policy, this Court must require the council to follow Article VII, Section 2c for "any elected officer of the pueblo", requiring a referendum election by the voters, to allow the voters their role in the process of unseating an "elected officer" that they have voted into office. To allow the council to do so without the voters' participation is an abuse of the council's power and goes beyond what is granted in the Constitution ..Page 17

CONCLUSION Page 18

COMES NOW, Petitioner-Appellant, Diane L. Peigler, unrepresented by

counsel, as requested by this Court by Order dated June 27, 2012 and respectfully

files this Brief in Case No. IAC 12-014; ITC No. CV-CM-0615-2012.

This Court has requested briefing regarding how Article VII and Article VIII

of the Pueblo of Isleta Tribal Constitution ("Constitution") are applicable in light

of the change to Article VI- Nominations, Elections and Appointments whereby

the electoral process allows for a general election for the purpose of electing a

governor and council members (Constitution, Amendments Certified November

1990 / See also 1970 and 1947 Constitutions).

ARGUMENT

L Analyzing the 1947 Constitution and the amendments of 1970 and 1990, and reading all the relevant provisions together, it is clear that Article VII, Section 2c applies to any "elected officer" of the pueblo, and that "any elected officer of the pueblo" includes any elected tribal council member, not only "elected officers of the Council".

a. The 1947 Constitution provides clear evidence that the word "officer" includes any official position, either elected or appointed, within the tribal government.

In the original Constitution approved in 1947, the only officials that were

elected were the Governor, President and Vice-President of the Council. (See

1947 Constitution, Art. III, Section 10.) The process for electing those three

positions was through nomination by voters, with the top three nominated

candidates running in the election. The top vote-getter would be seated as

Governor; with the second highest vote-getter seated as President of the tribal

council and the third place position seated as Vice-President of the tribal council.

(See 1947 Constitution, Art. III, Section 11.) The remaining ten tribal council

members were appointed by the Governor (4 appointments), President of council

(3 appointments), and Vice President of council (3 appointments). (See 1947

Constitution, Art. IV, Section 3b.) Importantly, throughout the entire 1947

Constitution, there is reference to the word "officer", and this word is used to

describe not only those who are elected, but any official position held in the tribal

government, whether it be an elected or appointed position. For example, Art. III

Section 1 lists the "officers" of the executive branch to include the Governor, first

and second lieutenant governors, sheriff; undersheiiff, secretary and treasurer.

(See 1947 Constitution.) Of these positions, only the Governor was elected, as is

currently the case. However, the use of the word "officer" to describe the other

official positions provides guidance as to how this term is still defined today.

Further use of the word "officer" throughout the original Constitution shows how

this term was and still is intended to include all elected and appointed officials.

(See 1947 Constitution, Art III, Section 11: "The new Governor shall select all

other officers except the Treasurer... "; Art III, Section 12 a) "...the ranking

officer of the executive branch of which shall instruct him and inaugurate him ....;

Section 12 b) "The other officers of the executive branch shall be sworn into

office....). Even more indicative of the meaning of the word "officer", Art. VI-

Special Election. includes two references "...and the other executive and

legislative officers shall be selected in accordance with the procedure..." and

"The officers so elected or chosen shall remain in office..." The use of the word

"officer" in the original Constitution provides clear evidence that this term, as

used in the current Constitution, is not so narrow as the Appellee contends. The

Appellee argues that because the Appellant "is not an Elected officer of the

Council", Art. VII, Section 2c does not apply in the current instance. (See

Respondent's Memorandum of Law in Support of Motion to Dismiss, page 3,

argument re-asserted as Response to Notice of Appeal, page 2.) The proper

interpretation of the current Constitution compels this Court to consider the

historical meaning of the word "officer" as exemplified in the original and

amended versions of the Constitution. Using the historical meaning of the word

"officer", which is also consistent with its meaning in the 1970 and current

version of the Constitution, the Appellant is undoubtedly an "officer of the

pueblo". The definition of "officer" in Black's Law Dictionary (Sixth Edition) is

a "Person holding office of trust, command or authority in corporation,

government, armed services, or other institution or organization". Upon election,

the Appellant received the authority to sit as a member of the tribal council vested

with the authority to act in such office, thus meeting the generally accepted, legal

definition of an "officer of the pueblo".

b. The 1970 Constitution provides the first provisions on "Removal and Recall" and plainly distinguishes the steps to unseat an appointed officer and an elected officer. The meaning of elected "officer" of the pueblo remains consistent with the 1947 Constitution.

Of more significance, the 1970 amendments to the Constitution provide

further guidance to the Court on the current meaning of Art. VII, Section 2 c. The

relevant 1970 amendments to the Constitution added an article to specifically set

forth the process of nomination, election and appointment of all tribal government

3

officers. The 1970 Constitution also added the article on "Removal and Recall"

that is at issue in this case. This version of the Constitution provides the first

clear distinction between "appointed" and "elected" offices, not mentioned in the

1947 Constitution, and uses the term "elected officers" to include the governor,

president, and vice-president of the council"... (See 1970 Constitution, Art. VII,

Section 2c). The reference to these three positions is very important in the

analysis of the current meaning of Art. VII, Section 2c. At the time, these three

positions were the only positions that were elected. The remaining ten Tribal

council members were still selected by appointment (Governor-elect: 4

appointments, Council President-elect and Vice-President-elect, 3 appointments

each) (See 1970 Constitution, Art. VI, Section 10). Thus, the inclusion of the

listing "the governor, president, and vice-president" is further confirmation that

"Any elected officer of the pueblo" meant any and all elected officers. As is

common in statutory language, the text "including the governor, president, and

vice-president of the council" does not restrict the applicability of the provision to

only those officers. Plainly, the listing is meant to confirm that the term "Any

elected officer" includes those officers listed and could potentially refer to other

elected officers, if any. In the case at hand, the other elected officer of the pueblo

includes the Appellant.

The new addition of the article regarding removing and recall also lends

assistance to the analysis. Here, the new distinction between "elected officer" and

"appointed officer" cannot be ignored. The purpose of the new article was likely

to set forth the process of how any tribal government official or officer may be

unseated from his position. Article VII, Section 2 clearly includes both elected or

appointed officers and describes the process for unseating such officers. Art. VII,

Section 2a describes a process where the council has the ability to potentially

consider unseating an accused officer or council member by providing due

process and a hearing. An "accused officer" could be an appointed officer, such

as the executive officers serving as first or second lieutenant, sheriff, undersheriff,

or an accused council member, as is the case at hand. The word "accused"

modifies both "officer" and "council member". It must be noted that at the time,

an appointed officer would have also included the 10 tribal council members who

had been appointed to office. Of utmost importance, the next two portions of

Section 2 must be considered further clarification of how "any appointed officer

of the pueblo or council member" and "any elected officers of the pueblo" are to

be unseated with two distinct processes. Section 2b describes the unseating by

2/3 affirmative vote of the full council, if the accused officer is "Any appointed

officer of the pueblo or council member". The word "appointed" is intended to

modify both "officer" (for example, the first or second lieutenant) and "council

member" (the ten individuals then appointed into office). This is a consistent

method of avoiding redundancy of text in a statute. The writers of the

Constitution could have been more clear by writing "Any appointed officer of the

pueblo or appointed council member", but the use of "appointed" to modify both

words avoids superfluous language. Further, the actual process described is a

reasonable one to unseat an appointed officer or appointed council member

because such pueblo official has not been elected by tribal voters. At that time,

10 appointed council members could have been unseated by a simple 2/3

affirmative vote for removal by the full council. Appellee's argument that

Section 2b applies in the current case is an obvious misinterpretation of Section

2b, that is applicable to appointed officers of the pueblo or, at the time, appointed

council members, stating that the "Appellant is a member of Council and not an

elected officer". (See Respondent's Memorandum of Law in Support of Motion to

Dismiss, page 2-3, argument re-asserted as Response to Notice of Appeal, page 2)

However, Section 2c is unmistakably distinguishable from Section 2b.

The plain text of Section 2c states "Any elected officer of the pueblo, including

the governor, president, and vice-president of the council shall be removed from

office following such hearing if by an affirmative vote of not less than two-thirds

(2/3) of the full council, the council shall vote to hold a referendum election on

the question of such recall, and provided that a majority of the registered voters

who cast their ballots in the preceding election vote in favor of recalL" Although

long and complicated, this is one sentence, requiring the reader to read all

portions in unison. The sentence uses the word "removed" along with the word

"recall" to describe the steps that must be taken to unseat "any elected officer".

This provision is the first instance that there is reference to both removal and

recall. It applies to "any elected officer", which at that time, would have meant

the only three position that were elected positions; that is the Governor, President

of the Council, or the Vice President of the Council. Reading Section 2c in

conjunction with Section 2b informs this Court that Section 2c is meant to first,

distinguish the process for unseating an appointed council member (Section 2b)

6

versus unseating an elected officer of the pueblo (Section 2c) and secondly, adds

the mandatory requirement of the council "voting to hold" a referendum election

to allow the voters to vote for or against such recall. The use of the word

"removal" instead of using the extra language of "removal and recall" throughout

the 1970 Constitution merely eliminates superfluous language and the need to use

the words "removal and recall" throughout the 1970 Constitution whenever

referring to the process that is applicable to "any elected officer of the pueblo"

provided in Section 2c or Section 2d. An example can be seen in Art. VIII of the

1970 Constitution that states "In the event of the death, resignation, removal or

incapacity of any member of the council... (See Art. VIII, Section 1). There is no

reference to a recall, although a recall is clearly provided for in Section 2c and

Section 2d. The writers clearly intended the use of the word "removal" to include

the recall process, as described in Art. VII, Section 2c and 2d, whenever referring

to the unseating of any elected officer, but avoided the redundancy of citing

"removal and recall" in every instance where this event is mentioned. If that is not

the case, Section 1 should then read "In the event of the death....removal, recall

or incapacity of any member of the council..." The method of avoiding

superfluous language is seen in numerous instances throughout the Constitution,

including Article VII and Article VIII ( See Art. VII, Section 2c, Section 2d; Art.

VIII, Section 1, Section 2, Section 3, Section 4, Section 6) This is further

evidence that the use of the word "removal" throughout the Constitution intends

to mean the process provided in Section 2 to unseat an officer, and avoids the

superfluous language of "removal and recall" when applicable to any elected

officer of the pueblo". Clearly, this Court must read Art. VIII to be consistent

with Art. VII, Section 2c which sets out how "Any elected officer of the pueblo"

shall be unseated, requiring a referendum election to involve the tribal voters in

the potential unseating of an elected officer that they have voted into office. This

interpretation is reasonable and consistent with a democratic process by which the

voters have the ultimate say in the unseating of an elected official. The Appellee

incorrectly states that "when the Constitution was amended in 1978 and 1990,

Article VII was not amended." (See Respondent's Memorandum of Law in

Support of Motion to Dismiss, page 3, footnote 1, argument re-asserted as

Response to Notice of Appeal, page 2.) In fact, the 1970 Constitution is the first

time that Art. VI, Art. VII, and Art. VIII came into being, thus the meaning of

"officer of the pueblo" would still have the same meaning as the original 1947

Constitution, meaning any official, elected or appointed, of the tribal government.

Appellee incorrectly argues that Art. VII Section 2 should read "may be removed

and recalled from office" in order for the Appellant's position to be correct (See

Respondent's Memorandum of Law in Support of Motion to Dismiss, page 2, II

A, argument re-asserted as Response to Notice of Appeal, page 2). This analysis

is superficial and flawed. In fact, Appellant agrees that Art. VII Section 2 is

properly written, describing how "any elected or appointed officer of the pueblo,

member or officer of the council... may be removed or recalled from office in the

following manner:". It is the first portion of the Section, meant to describe and

include every possible tribal official that could be subject to being unseated.

Then, Section 2a, 2b, 2c and 2d proceed with the specifics steps for unseating of

8

either appointed or elected officials, and the different requirements needed for the

different category of tribal official. Section 2a describes the hearing process that

the council must use. Section 2b describes how "any appointed officer of the

pueblo or council member" may be unseated, with the word "appointed"

modifying both "officer of the pueblo" and "council member". Section 2c

describes how "any elected officer of the pueblo", including the Appellant, may

be unseated. Section 2d describes how tribal voters may petition to recall "any

elected officer of the pueblo".

c. The current Constitution includes an important substantive change from the 1970 Constitution related to how tribal council members are selected, through election of all 12 members. This change increased the potential use of Art. VII, Section 2c to unseat "any elected officer of the pueblo" because there are now 12 such officers on council. The meaning of elected "officer" of the pueblo still remains consistent with the 1947 Constitution.

The most significant analysis of the relevant articles of the Constitution

requires a comparison of the 1970 and 1990 Constitutions. The 1970 Constitution

first introduced provisions relating to "Nominations, Elections and

Appointments" (Art. VI); "Removal and Recall" (Art. VII); and "Filling

Vacancies and Special Elections" (Art. VIII). The language and text of the

"Removal and Recall" provisions did not change with the 1990 amendments.

However, an importance substantive change took place in the 1990 Constitution

that informs this Court of the current meaning of these provisions. The 1990

Constitution changed how tribal council members are selected (See Constitution,

Article VI, Section 5). Tribal council seats are no longer appointed positions. As

9

was the ease in the original Constitution and the 1970 Constitution, the second

highest and third highest vote-getters for the Governor's seat are no longer seated

as the President and Vice President of the Council. There are separate nomination

processes for the Governor's position and 12 tribal council member positions.

(See Constitution, Article VI, Section 5). All tribal council seats, including the

President and Vice President of the Council, are filled through the election

process, with no appointments to the tribal council by the Governor-elect. The

Governor-elect retains the authority to appoint the named executive officers as

provided in Art. IV and Art. VI, Section 15. Another important substantive

change is the method by which the President of the Council and Vice President

are selected. Instead of being the second and third vote-getters in the Governor's

race, the 1990 Constitution requires that of all 12 individuals elected to the

council, these individuals shall "elect amongst themselves a president and vice-

president of the council and designate one of its members as council secretary..."

(See Constitution, Art. V, Section 5).

d. The meaning of "any elected officer of the pueblo", as referred to in Art. VII, Section 2c and Section 2d has never been narrowed to mean only "elected officers of the Council", as argued by the Appellee.

It is important to note that at all times, the definition of "officer of the

pueblo" was not narrowed to include only "officers of the Council". If the

writers of the 1990 Constitution meant to change or narrow the definition of

"officer of the pueblo", it would stand to reason that the text in Art. VII 2c would

10

have been amended to make such distinction. The Appellee unconvincingly

argues that the Appellant is "not an elected officer of the Council,...therefore

Section 2c does not apply" (See Respondent's Memorandum of Law in Support of

Motion to Dismiss, page 3, first and second line, argument re-asserted as

Response to Notice of Appeal, page 2.) Importantly, Section 2c does not state

that "Any elected officer of the Council...shall be removed by..." The text states

"Any elected officer of the pueblo...shall be removed by..." This Court must

recognize that since the 1947 Constitution and throughout the amendments, the

term "officer of the pueblo" has meant any official who serves in a position with

the tribal government, appointed or elected.

For purposes of determining which council members Section 2c applies to,

as Appellee suggests, narrowing the applicability of Section 2c to only "elected

officers of the Council" would lead to a ridiculous result. For example, the

current officers of the Council are President Fred R. Lujan, Vice President Joseph

R. Lucero, and Secretary Barbara Jiron-Sanchez. It would be completely contrary

to a democratic process that Section 2c only applies to these particular tribal

council members because they are elected officers of the Council, especially

given the fact that these officer position are not chosen by tribal voters, but

amongst the 12 individuals that get elected to tribal council. This obviously

flawed argument would mean that the provisions for unseating any elected officer

(Section 2c), requiring a referendum election, would only apply if the accused

officer happens to be named as an officer of the Council. This would allow the

other nine tribal council members, who are clearly "elected officers of the pueblo"

11

to be removed solely by an act of the council under Section 2b, clearly applicable

only to an appointed officer of the pueblo or appointed council member (as was

the process in the 1970 Constitution). The Appellee states that Section 2b is

applicable in the case at hand. However, this one-dimensional analysis does not

consider that the word "appointed" modifies both "officer of the pueblo" and

"council member" which would have applied prior to the 1990 amendments when

there were 10 appointed council members. Further, Appellee's argument does not

address the substantive changes that took place in the 1990 Constitution to now

elect all 12 tribal council seats. Applying Section 2b to the Appellant's case

denies the tribal voters their role in unseating an elected official through the

removal and recall process referred to in Section 2c. This flawed interpretation is

inconsistent with the meaning of "officer of the pueblo" as used in all versions of

the Constitution.

Furthermore, Art. VII Section 2d provides additional support that the

unseating of any elected officer requires a recall election, and that "Any elected

officer" is not narrowly construed to mean only "elected officers of the Council",

as Appellee argues. Section 2d allows the voters to petition for the recall of "any

elected officer of the pueblo" through the submitting of a petition signed by at

least twenty-five percent of the voters registered voting in the last preceding

election. If Appellee's interpretation is correct, and "elected officer of the

pueblo" applies only to "elected officers of the Council", then tribal voters would

not be able to petition for recall of the nine council members who happen not to

be named as "elected officers of the Council". This interpretation would lead to

12

an absurd result, in that tribal voters would only be allowed to utilize Section 2d

in the rare instance where the elected council member that they wish to potentially

unseat through recall must be an "elected officer of the Council". This faulty

argument would deprive tribal voters of their role in both processes described in

Section 2c and 2d. That is unreasonable and cannot be what the writers intended.

The Appellant contends that Section 2c and 2d apply to all twelve elected council

members, who fit the definition of "any elected officer of the pueblo". The

voters must be given their role in unseating "elected officers of the pueblo",

whether it be through the mandatory referendum election to vote for or against the

recall in Section 2c or through the ability to potentially unseat not only an

"elected officer of the Council" but any of the 12 members elected to a tribal

council seat, as described in Section 2d. The Appellee's position is not consistent

with the likely purpose of the 1990 amendments. Why would the writers provide

for added ability of tribal voters to now elect all 12 council seats, much more due

process, much more specificity in all areas concerning nominations, vacancies,

special elections, and then proceed to narrow Section 2c to be applicable only if

the duly-elected council member is then elected as an "officer of the Council"?

This argument does not make sense.

Additionally, the Appellee argues that the Appellant "fails to discuss the

provision in [sic] Constitution that governs in this case" (See Respondent's

Memorandum of Law in Support of Motion to Dismiss, page 3, B, first line,

argument re-asserted as Response to Notice of Appeal, page 2) and further asserts

that Article VIII, Section 1 "controls and was followed by Tribal Council to the

13

letter". (See Response to Notice of Appeal, page 2, II, line 3). Appellant is NOT

arguing that Appellee did not properly follow the process for a Special Election.

Appellant is arguing that the Special Election is premature. The applicability of

Art. VIII, Section 1 has not yet come into play. The requirements of Art VII,

Section 2c have not been followed for the unseating of an "elected officer of the

pueblo". If the proper process is followed, a referendum election will be held on

the "question of such recall" and the Appellant will properly be unseated, if "a

majority of the registered voters who cast their ballots in the preceding election

vote in favor of recall". At the point following the referendum election; if the

majority of eligible voters vote in favor of recall, then Art. VIII, Section 1

regarding a Special Election would become effective, if the council uses its

discretion to declare the seat vacant. It must be noted that the council can NOT

unilaterally declare the Appellant's seat vacant without first following the process

in Art. VII, Section 2c, including the referendum election and the results showing

the majority of voters are in favor of the recall. Two seats of elected officers of

the pueblo were declared vacant on June 1, 2012. This was an invalid action by

the Appellee without first holding the mandatory referendum election and

determining if the majority of voters favored the recall. This action by the

Appellee and the scheduling of the Special Election led to the filing of the

Emergency Petition for Declaratory Judgment requiring Tribal Constitutional

Review and Request for Injunctive Relief that initiated this matter.

Notably, Appellee's citing to only the word "removal" and not "recall" or

"removal and recall" throughout the Constitution (See Respondent's

14

Memorandum of Law in Support of Motion to Dismiss, page 3, B, paragraph 2,

and page 4, line 1; argument re-asserted as Response to Notice of Appeal, page 2)

fails to recognize the need for avoiding redundant language when the processes

described in Section 2c and Section 2d address how "any elected officer of the

pueblo" can be unseated, either by the 2/3 affirmative vote of full council and the

majority of eligible voters voting in favor of the recall (Section 2c) or by just the

voters themselves through a petition and a majority vote in favor of recall after

such an election (Section 2d).

It is clear that Section 2c mandates a referendum election be held to allow the voters who voted in the preceding election to participate in the potential unseating of an "elected officer of the pueblo".

The Appellee states that Section 2c "only requires Tribal Council to vote

to hold an election, not to hold an election..." and that the provision "only

requires Tribal Council to decide whether to hold an election or not...the

Constitution does not make the calling of a referendum election mandatory, but

rather gives Tribal Council the power to choose whether or not to hold a

referendum election." (See Respondent's Memorandum of Law in Support of

Motion to Dismiss, page 3, II, A, paragraph three; argument re-asserted as

Response to Notice of Appeal, page 2.) This interpretation certainly is a

distinction without a difference. Art. VII, Section 2c is written in one long,

complicated sentence, requiring the reader to read all portions in unison. The

intent is to provide the specific steps for unseating "any elected officer of the

pueblo" and it is reasonable that the voters must be involved in the process

because the voters participated in electing such officers. Further, the language in

Section 2c does not state that "the council shall vote whether to hold a referendum

election on the question of such recall", it clearly states "the council shall vote to

hold a referendum election on the question of such recall..." Consistent with

the 1990 amendments to provide the voters with more active participation in the

electoral process, to argue that the council now has the unilateral authority to

decide whether or not to allow voters their role in such an important process, as

provided in law, is an injustice and deprives the voters their voice. Further, it is

possible that the words "the council shall vote to hold a referendum election on

the question of such recall..." could mean that the council is vested with power

to choose when to hold such an election, not whether to hold it or not. The

language of Section 2c is mandatory. Art. VIII provides guidance to this Court on

the mandatory nature of Art. VII, Section 2c. In contrast, four separate sections of

Art. VIII contain discretionary language, stating "the position may be declared

vacant by the council and filled for the remainder of the term..." (Art. VIII,

Sections 1, 2, 3, 4). In these instances, the council clearly has the power to decide

whether or not to declare the seat vacant. The Appellee incorrectly interprets this

same discretion to be applicable to a Section that does not contain discretionary

language. If the writers of the Constitution meant to give the discretion to the

council in instances invoked under Art. VII, Section 2c, the language would read

"Any elected officer of the pueblo, ... shall be removed from office following

such hearing, by an affirmative vote of not less than two-thirds (2/3) of the full

council, the council may vote to hold a referendum election on the question of

16

such recall..." Clearly, that is simply not the case here. The requirement in Art.

VII, Section 2c that "the council shall vote to hold a referendum election on the

question of such recall" is unambiguous. Also, it is consistent with the other

articles in the Constitution that use discretionary language to give the council the

ability to use such discretion.

III. As a matter of policy, this Court must require the council to follow Article VII, Section 2c for "any elected officer of the pueblo", requiring a referendum election by the voters, to allow the voters their role in the process of unseating an "elected officer" that they have voted into office. To allow the council to do so without the voters' participation is an abuse of the council's power and goes beyond what is granted in the Constitution.

This Court should also consider the purpose of Art. VII, Section 2 in the

overall framework of the Constitution. It is not likely that the council should have

such discretion, in cases that would clearly include the potential unseating of one

of their own members. Given that discretion, the voters' ability to be an active

part of the electoral process would be suppressed. Allowing the council to unseat

"any appointed officer of the pueblo or [appointed] council member" makes

sense because these officers have not been elected. However, as a matter of

policy, to do the same for "any elected officer of the pueblo" who the voters have

elected is clearly giving the council much more ability to assert authority and use

their discretion in a manner that is beyond the scope of power granted to it in the

Constitution. If this Court interprets the relevant provisions of the Constitution as

the Appellee suggests, the council could then possibly continue to remove duly-

elected council members by following the process in Art. VII, Section 2b, without

any regard to the voters who elected those individuals into office and who should

17

be part of the process. The Appellee is asserting as much power as it believes it

should have, and this Court is the only avenue that tribal voters have to test the

constitutionality of such actions.

The Pueblo of Isleta requests that this Court issue an order requiring

Appellant to "pay for the costs of the enjoined election, including costs for

publication of notices, postage, copies, printing, paper, staff time preparing for the

election, and other costs", if the Appellant ultimately fails on this claim. That

request is yet again, another assertion of power by the council that is unjust and

unreasonable. The handling of this matter is of utmost concern to not only the

Appellant, but to the voters of the pueblo. Testing the constitutionality of the

council's actions and having this Court interpret the relevant provisions of the

Constitution is far from a frivolous action or a personal quarrel. The Appellant is

following the proper process to determine the validity of the council's actions and

filed the action as quickly as possible. It would be unfair to request that any tribal

member pay the costs of an election that has been properly contested through the

appropriate judicial process.

CONCLUSION

The closer review and analysis of the relevant provisions of the 1947

Constitution, the 1970 Constitution, and the current Constitution provides

significant support that Art. VII, Section 2c is applicable in the case at hand

because this Section applies to "any elected officer of the pueblo". The

Constitution does not require a council member to be an "elected officer of the

Council" in order for Section 2c to apply. The word "appointed" in Art. VII,

18

Section 2b modifies both "officer of the pueblo" and "council member", which

would have applied in the 1970 Constitution to the appointed council members

during that time. Art. VII, Section 2b does not apply to this case because the

Appellant is not "appointed". Additionally, the language in Art. VII, Section 2c

mandates that a referendum election be held to allow the eligible voters the ability

to either vote in favor or against the unseating of an "elected officer of the

pueblo", including the Appellant. The Appellant respectfully requests this Court

to overturn the erroneous determination by the lower court that the "Constitution

does not require a recall of an elected official to conduct a special election to fill

the vacancy created by removal by disciplinary action" and further requests this

Court to interpret the relevant provisions of the Constitution and determine. as a

matter of law, that Article VII (Removal and Recall), Section 2 c is applicable in

this case and that the council must first hold a referendum election to determine if

the majority of eligible voters are in favor of unseating the Appellant prior to

properly declaring the seat vacant and holding a special election to fill such

vacancy.

Respectfully Submitted,

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61.re \Ter 92 Tribal Road 10 Bosque Farms, New Mex c 87068 (505) 315-0590

19

CERTIFICATE OF SERVICE

The undersigned hereby certify that a true and correct o

forwarded to the Respondent, Isleta Tribal Council, on this

July, 2012.

' ■ ■ ■ , 4 \ 07.0 ii. L. Pe

Alai_ er

'w OF

going was

day of

20

Time ' Peigler 92 Tribal Road 1 Bosque Farms, New Mexico 87068 (505) 315-0590

tfully Submi

IN THE PUEBLO OF ISLETA APPELLATE COURT

PUEBLO OF ISLETA

ISLETA, NEW MEXICO

Diane L. Peigler,

Petitioner-Appellant,

v.

Pueblo of Isleta Tribal Council

Respondent-Appellee

AVAILABLE DATES

COMES NOW, Petitioner-Appellant, Diane L. Peigler, unrepresented by counsel, as

requested by this Court by Order dated June 27, 2012 and respectfully files this Available Dates

in Case No. IAC 12-014; ITC No. CV-CM-0615-2012.

Appellant is available for oral argument at anytime, as determined by this Court.

CERTIFICATE OF SERVICE

The undersigned hereby certify that a true and of the foregoing was forwarded to the

Respondent, lsleta Tribal Council, on day of July, 2012

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r.1°P4,1/P Pi '411.wta. e L"'1gler