Judge hears Grayeyes’ case
Fitzgerald says no evidence San Juan clerk broke laws when he removed Navajo candidate from election ballot
by Doug McMurdo
The Times-Independent
Jan 28, 2019 | 1361 views | 0 0 comments | 40 40 recommendations | email to a friend | print

Court was an all-day affair Wednesday, Jan. 22 in a case alleging San Juan County District 2 Commissioner Willie Grayeyes is an Arizona resident and ineligible to hold office in Utah.

Witnesses for the member of the Navajo Nation testified Grayeyes’ umbilical cord is buried on Piute Mesa, which is on Navajo Mountain and within San Juan County’s District 2, and that traditionally is how residency is established.

Witnesses for Kelly Laws, the San Juan County Republican who unsuccessfully opposed Grayeyes in the November election, filed the lawsuit in December. Court documents filed by his attorney, Peter Stirba of Salt Lake City, rely heavily on an investigation conducted by San Juan County Sheriff’s deputy Colby Turk, who testified twice during the marathon court session, according to a report published in the San Juan Record’s online edition.

While Turk allegedly uncovered seemingly damning evidence that Grayeyes is an Arizona resident – he pays taxes on a home he owns in Page that is listed as his primary residence, for example – the Record reported people have questioned whether Turk was authorized to conduct an investigation on Navajo Mountain.

Laws said his objective in filing the lawsuit was to ensure election laws are upheld – and to have the election results annulled – but others question why it was filed “at the last possible moment,” according to the Record.

Grayeyes has four attorneys working for him, according to court documents, but it was Durango, Colorado attorney Steven Boos, who is licensed to practice law in Utah, who argued on his behalf Wednesday.

The court file has seen a flurry of activity in recent days, including a request from Grayeyes for summary judgment based on “laches,” a legal term defined as “a lack of diligence and activity in making a legal claim,” alleging Laws did not file the lawsuit “at the earliest opportunity, and, therefore, under the equitable doctrine of laches, his claims, however meritorious they may be, are barred and must be dismissed.”

They note that Laws did not serve court papers to Grayeyes until Jan. 7, “minutes before Mr. Grayeyes was to be sworn into office at an inaugural ceremony.”

While Laws in his lawsuit seemed to provide a compelling case that Grayeyes doesn’t live in San Juan County, Grayeyes’ attorneys note in court documents that Grayeyes first registered to vote in San Juan County more than three decades ago. They also point out that Grayeyes “is a Navajo Indian and, viewed from a Navajo perspective, Mr. Grayeyes and his ancestors have lived in the area of Piute Mesa, Utah, since the time when Navajo people emerged from the Fourth World.”

A more contemporary argument they made pointed out that voter registration depends on a showing of residency. The San Juan County Clerk could have refused Grayeyes’ 1984 attempt to register to vote if there were any question as to his residency, but didn’t. “That approval created a presumption that Mr. Grayeyes, as a legally registered voter, had a principal place of residence in San Juan County, a presumption which thereafter could not be overcome except in a showing, by clear and convincing evidence, that he had established a new principal place of residence.”

Further, Grayeyes re-registered in 2016 after, his attorneys argue, the county clerk “conducted what apparently was an illegal purge of Navajo voters. Mr. Grayeyes, restating his residency in San Juan County, re-registered to vote with the clerk. The clerk approved his application for registration, thereby renewing the statutory presumption that Mr. Grayeyes was a resident of San Juan County…”

The attorneys suggest Grayeyes’ residency was questioned only after he became politically active in a number of areas, such as his support for keeping intact Bears Ears National Monument or reforming how San Juan County draws its district boundaries.

This is not the first time Grayeyes’ residency has been challenged. It happened when he first ran for office in 2012. He lost that race, but his attorneys claim San Juan County has refused to honor several GRAMA requests for copies of the challenge. He was challenged again in 2016.

The attorneys cite “official misconduct” by San Juan County Clerk John David Nielson, whom they allege overstepped his authority when he enlisted Deputy Turk to investigate Grayeyes’ residency, backdating at least one critical document, withholding evidence and lying under oath. The attorneys also claim Laws’ son, San Juan County Attorney Kendall Laws, referred a criminal complaint against Grayeyes to Davis County Attorney Troy Rawlings, who refused to pursue the allegations.

They also claim both Nielsen and Turk “admitted under oath” in depositions that they knew Grayeyes was a resident of Navajo Mountain. This is why, according to court documents, a federal judge forced Nielsen to put Grayeyes’ name back on the November ballot after he removed it without just cause.

Former Grand County Attorney Andrew Fitzgerald on Dec. 21, one week before Laws filed his lawsuit, in a letter sent to San Juan County opted not to pursue criminal charges against Nielsen following the federal judge’s ruling that Grayeyes was improperly removed from the ballot.

Nielsen backdated a complaint that challenged Grayeyes’ residency and used that complaint to justify removing Grayeyes from the ballot. Fitzgerald in his letter explaining why no charges would be filed said he could find not a criminal statute that applied, in either state election law or Utah criminal codes. He said that backdating the complaint was not a “smoking gun.”

Fitzgerald rejected a misdemeanor abuse of office charge because he could not prove Nielsen intended to benefit himself or others – or to harm Grayeyes. Fitzgerald also said Nielsen, who was in his first term, sought advice from the San Juan attorney, a former clerk and the Lt. Governor’s office. Fitzgerald told the Salt Lake Tribune in a report published earlier this month that there was no evidence Nielsen took the actions he did to keep Republicans in power in San Juan County. Instead, Fitzgerald said the people he reached out to for help “really didn’t help him.”

Grayeyes ultimately defeated Laws by about 150 votes – 973 to 814.

Seventh District Judge Don Torgerson said he would issue a ruling by Jan. 28.

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