JUN 12 2012

E3'.L12 .n4 , CLERK, ISLETA TRIBAL COURT

PV FILED

IN MY OFFICE THIS

IN THE PUEBLO OF ISLETA TRIBAL COURT PUEBLO OF ISLETA, ISLETA, NEW MEXICO

Diane L. Peigler,

Petitioner,

RECEIVED TRIBAL tCAJNCIL

CV-CA- 005- W( , v.

Pueblo of Isleta Tribal Council

Respondent.

EMERGENCY PETITION FOR DECLARATORY JUDGMENT REQUIRING TRIBAL CONSTITUTIONAL REVIEW AND

REQUEST FOR INJUNCTIVE RELIEF

COMES NOW, Petitioner, Diane L. Peigler, pro se, and hereby

requests that this Court provide an Emergency Declaratory Judgment

requiring Tribal Constitutional review of the validity and

constitutionality of the scheduling of a Special Election by the

Respondent to fill an alleged "vacancy" of the Tribal Council seat

occupied by Petitioner, prior to Respondent complying with the full

process required under the Pueblo of Isleta Tribal Constitution, Article

VII (Removal and Recall), Section 2c mandating Respondent to "hold

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a referendum election on the question" of recall of Petitioner.

Petitioner also requests that the Court grant an Emergency Temporary

Restraining Order enjoining the Respondent from conducting the

Special Election, or any preliminary proceedings related to the Special

Election until such time that the Court rules on the constitutionality of

such Special Election. The Emergency Temporary Restraining Order

should be issued by the Court to protect the Petitioner until this Court

conducts a hearing on the validity and constitutionality of the

premature scheduling of a Special Election by the Respondent, when

the full Tribal Constitutional process of "removal and recall" required

vacating the Respondent's Tribal Council seat has not yet occurred.

CONDUCTING A SPECIAL ELECTION TO FILL AN ALLEGED "VACANCY" ON THE TRIBAL COUNCIL PRIOR

TO HOLDING A REFERENDUM ELECTION ON THE QUESTION OF RECALL OF DULY ELECTED TRIBAL

COUNCIL OFFICIALS VIOLATES THE TRIBAL CONSTITUTION

AS GROUNDS:

1. This Court has jurisdiction and authority to hear this cause

pursuant to the Pueblo of Isleta Tribal Constitution, Article IX,

Section 5.

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2. Petitioner, Diane L. Peigler, is a duly elected member of the

Isleta Tribal Council, ("Council") for the 2011-2012 Term.

Article VII (Removal and Recall), Section 2 of the Pueblo of

Isleta Tribal Constitution provides a process whereby

Respondent may potentially remove any elected member of the

council, if found guilty in any court of a misdemeanor

involving misconduct reflecting on the dignity and integrity of

the tribal government, or found guilty by the council of

malfeasance in office, or gross neglect of duty.

4. On March 21, 2012, Respondent held a hearing pursuant to

Section 2 a), where a vote was taken to remove Petitioner from

office.

5. By conducting such a hearing, Respondent completed only

Section 2 a) and b) in its effort to remove and recall the

Petitioner, but has clearly not complied with the full process

mandated in Section 2 c) which requires holding a referendum

election on the question of such recall, to validly complete the

removal and recall process required by the Pueblo of Isleta

Tribal Constitution.

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6. Article VII (Removal and Recall) of the Pueblo of Isleta Tribal

Constitution is a two step process by which the Tribal Council

may act on the first step of removal. The voters who cast their

votes in the preceding election have a crucial role in the

removal and recall process, to determine whether or not to

ratify or agree with the Tribal Council's decision through a

referendum election that the Respondent is mandated to hold.

7 Article VII (Removal and Recall) Section 2 c) states that an

elected officer shall be removed from office if an affirmative

vote of not less than two-thirds (2/3) of the council vote as

such. However, the second portion of Section 2 c) states that

the Respondent "shall vote to hold a referendum election on

the question of such recall" (Art. VII, Section 2c, emphasis

added). This language in the Tribal Constitution makes the

calling of the referendum election mandatory. This language is

unambiguous. The Tribal Council must do so to comply with

the law. Without holding the Referendum Election, the Tribal

Council is not fulfilling the full requirements of removal and

recall. The Tribal Council cannot take away the power that

voters have to be a part of the process by simply not holding the

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referendum election. This unconstitutional action would

deprive the voters of their ability to participate in a very

important democratic process set forth in the Tribal

Constitution.

8. In this instance, a key requirement in the process is to allow

voters to have their "say" in the removal and recall of one who

has been duly elected. Only after such referendum election has

occurred "and provided that a majority of the registered voters

who cast their ballots in the preceding election vote in favor of

recall" (Art. VII, Section 2c, emphasis added) would the

Petitioner be validly removed and recalled, requiring me to

vacate my seat on the Tribal Council.

9. The Respondent has voted to hold a Special Election and posted

a Public Notice regarding the Special Election to fill the

position allegedly vacated by my removal and another duly

elected Tribal Council member. (Attachment A). This action is

undoubtedly premature. This attempt by the Respondent to

skip a significant step in the removal and recall process

provided in the Tribal Constitution is of serious concern and

silences the voters' voice. The Respondent cannot substitute its

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judgment and decisions for those of the tribal member voters.

To do so would be an injustice.

10. Without first conducting a referendum election on the question

of the recall of two elected officials, the Respondent is clearly

violating the full process of removal and recall set forth in the

Tribal Constitution, thus stripping away the rightful opportunity

of the voters in the preceding election to have a voice in the

removal and recall process.

PETITIONER'S REQUEST FOR INJUNCTIVE RELIEF

The Pueblo of Isleta Court has recognized the tribal judicial authority

to issue injunctive relief and provide declaratory rulings on matters of

constitutional review regarding Isleta governmental actions. "Generally,

there is a right to a hearing for an injunction and failure to provide a hearing

can be error". See The Matter of) Petition of an Immediate Injunction

and a Determination of the Constitutionality of Action and Omissions of

the Isleta Council and Governor Alvino Lucero, Et. Al. IAC-10-007.

Page 14, Paragraph C. Further, the Court has recognized requirements for

an immediate injunction which include "1.) Likely success on the merits of

the claim; 2.) irreparable injury if the injunction is denied; 3) that the

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issuance of the injunction would not unduly harm others; and 4) that

issuance of the injunction would serve the public interest. (See Page 15 of

Case).

In my case, all four requirements are met. First, I am likely to

succeed in the merits of my claim that it is premature to conduct a Special

Election to fill my allegedly "vacant" seat on the Tribal Council. The

language in the Tribal Constitution is clear on its face. A referendum

election must be conducted pursuant to Article VII, Section 2c to allow the

voters in the preceding election their right to vote to either ratify or nullify

the Tribal Council's decision to remove me from my elected Tribal Council

seat. To follow only the first step of removal in a two step process provided

for in the Tribal Constitution violates tribal law and allows the Respondent

to deprive voters their critical role in the process. Second, I will suffer

irreparable injury if the injunction is denied because if the Special Election

is allowed to proceed, without first properly removing and recalling me from

my duly elected Tribal Council seat, I will unlawfully and improperly been

denied the ability to continue my term of office, without the majority of

voters voting in favor of my recall. There is also irreparable harm that

comes to the voters in the preceding election through the deprivation of their

opportunity to cast their vote in a referendum election regarding my recall.

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The third requirement for an immediate injunction is also met, in that

the issuance of the injunction will not unduly harm others. The Tribal

Constitution requires a referendum election on the issue of my recall. After

the results of such constitutionally required referendum election, if I am

properly removed and recalled, then the Special Election to fill that vacancy

and any other vacancy that may occur can proceed at a later date. The Isleta

Tribal Council is required by the Tribal Constitution "to prescribe and

establish necessary rules and regulations for the conduct of pueblo elections

in accordance with this constitution" (Art. V-Legislative Branch, Section

2g, emphasis added). Clearly, the Respondent has the highest duty to assure

that in such a controversial situation as removing and recalling a duly

elected member of the Tribal Council that each step of the process

prescribed in the Tribal Constitution is followed accurately and legally. To

do less is malfeasance by the Respondent, and an injustice to tribal voters.

Holding the required referendum election to determine the voters' wishes in

this matter followed by a Special Election to fill any vacancy that are the

result of the referendum election does not unduly harm others. In fact, it

gives the Respondent the opportunity to comply with the Tribal Constitution

before moving forward with a Special Election. Finally, the fourth

requirement of serving the public interest cannot be overstated. The proper

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removal and recall of an elected official pursuant to the Tribal Constitution

clearly involves the public interest because the voters of the Pueblo of Isleta

have the right to elect the candidates of their choice. If the Tribal Council is

able to remove such duly elected officials by a simple removal vote, without

following the full process of a referendum election, then the voters are being

deprived of their ability to have a voice in that removal and recall. In the

future, if the majority of the Tribal Council decides that they don't agree

with who the voters elect, they could manipulate the process and simply

decide to conduct a hearing under Article, VII, Section 2 a) and b) and

therefore, deprive the voters their right to determine if that elected official

should, in fact, be removed and recalled. The referendum election

provisions of Section 2c) provides for the public interest (the voters of the

Pueblo) and protects the voters' role in the process. The Tribal Constitution

clearly spells out the process that must occur.

WHEREFORE, the Petitioner respectfully requests that this Court:

A. Grant an immediate injunctive order before June 22, 2012, in the form

of an Emergency Temporary Restraining Order, prohibiting the

Respondent from conducting the Special Election, or any preliminary

proceedings related to the Special Election, until such time that the

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Court conducts a hearing on this matter and rules on the

constitutionality of such Special Election; and

B. Enter a Declaratory Judgment finding that pursuant to Article VII,

Section 2c, of the Pueblo of Isleta Tribal Constitution, the Tribal

Council must hold a referendum election as a necessary step to

properly remove and recall a duly elected tribal council official, and

that to attempt to fill an alleged "vacancy" on the tribal council by a

Special Election prior to such referendum election is unconstitutional.

Respectfully Submitted,

Diane L. Pei

92 Tribal Road 10

Bosque Farms, NM 87068

(505) 315-0590

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Secretary, Barb

PUBLIC NOTICE. DECLARATION OF VACANT TRIBAL COUNCIL

SEATS

At a duly called Tribal Council meeting held on June 1, 2012, a motion was made and passed to declare Vacancies of TWO (2) Tribal Council seats. According to the Isleta Tribal Constitution

which states in Article VIII, Section 1: "In the event of the death, resignation, removal or

incapacity of any member of the Council, the position may be declared vacant by the Council

and filled for the remainder of the unexpired term by an eligible member of the pueblo by

Special Election to the position thus vacated".

According to Resolution No. 2012-041, (Amending of Resolution No. 2008-093A) Adopting

Procedures for Conducting Special Elections, pursuant to Article VIII, Section 6, of the Isleta

Tribal Constitution, #2 of said Resolution states, " that any eligible member wishing to be

considered for election to the vacant position must declare their candidacy for the vacant

position in the Tribal Council Office at least five (5) days prior to the re-registration date by

completing a Tribal Election Candidacy Form and Conflict of Interest Form, in person, in the

Tribal Council Office, Tribal Services Complex". Therefore, any eligible member must declare

their candidacy by June 11, 2012, 4:30 p.m.

According to Resolution No. 2006-157, "registering Candidates shall be given the opportunity

to be tested for illegal drugs, at the Pueblo's expense, with results of such testing, and

whether any Candidate failed to undergo such testing, shall be posted at the polling place".

In accordance with these provisions, Re-registration for the Special Election will be held on

June 16 2012 (ONE DAY ONLY) at the Isleta Elderly Center Kiva Room from 8:00 A.M. to 7:00

P.M. Only individuals who registered to vote in October 2010 for the 2011-2012 election will be

allowed to re-register. For identification purposes, you may be asked to present photo

identification in order to re-register.

The Special Election will take place on Saturday, June 30, 2012 at the Isleta Elderly Center

Kiva Room from 8:00 A.M. to 7:00 P.M. (ONE DAY ONLY). Again, for identification purposes,

you may be asked to present photo identification in order to vote.

IN ORDER TO INSURE THAT THE RE-REGISTRATION AND VOTING FOR THE SPECIAL ELECTION

OCCURS IN A SAFE AND ORDERLY MANNER, THE TRIBAL COUNCIL SECRETARY RESERVES THE

RIGHT TO DIRECT THE SHERIFF/UNDER-SHERIFF AND/OR THE ISLETA POLICE DEPARTMENT

OFFICER(S) TO REMOVE ANY PERSON OR PERSONS WHO ARE UNDER THE INFLUENCE OF

ALCOHOL AND/OR DRUGS OR ANY INDIVIDUAL WHO IS ACTING IN A DISORDERLY MANNER

FROM THE RE-REGISTERING AND VOTING SITE.

CERTIFICATE OF SERVICE

The undersigned hereby certify that a true and correct of the f_ o egoing was forwarded to the Respondents, Isleta Tribal Council on this A.2 day of June, 2012.