Judge rebukes San Juan officials over falsified documents - Moab Sun News: News

Judge rebukes San Juan officials over falsified documents

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District judge issues injunction against county clerk and others who sought to disqualify Willie Grayeyes as a candidate for commissioner

Posted: Thursday, August 9, 2018 8:56 am | Updated: 11:00 am, Thu Aug 9, 2018.

A federal judge has ruled that Willie Grayeyes is a candidate in the November election in San Juan County and said the San Juan County Clerk of Courts falsified documents that had been used to disqualify Grayeyes from the ballot earlier this year.

Grayeyes, a member of the Navajo Nation and a Bears Ears National Monument advocate, filed a lawsuit about six weeks ago, U.S. District Court Judge David Nuffer said, after San Juan County challenged Grayeyes’ voter eligibility and then disqualified him from the ballot as a Democrat in the San Juan County Commissioners race.

Grayeyes names Lt. Gov. Spencer Cox, San Juan County Clerk of Courts and Auditor John David Nielson, San Juan County Attorney Kendall G. Laws, San Juan County Deputy Sheriff Colby Turk and citizen Wendy Black as the defendants in the lawsuit.

The parties met in the federal district court in Moab on Tuesday, Aug. 7, for a special hearing on a motion for a preliminary injunction. Grayeyes was asking the court to review the facts in the case so far, and issue an injunction to stop the San Juan County clerk and Utah Lieutenant Governor’s Office from taking further action against him.

On multiple occasions, Nuffer asked Nielson and his defense counsel to show him the state statute that says a voter registration challenge can determine a person’s residency and be used to disqualify a person from a ballot.

Each time that Nuffer asked the question to the defense, Nielson’s attorney, Blake Hamilton, would rise and say, “There isn’t one.”

“Every person is entitled to the due process of the law,” Nuffer said.

Nuffer ruled that Grayeyes is, in fact, a registered voter and is a qualified candidate for the election in San Juan County this year. Nuffer said the San Juan County Clerk violated Grayeyes’ due process and acted outside of the law.

“Nielson solicited Black to backdate the documents outside of his legal authority,” Nuffer summarized. “No question, the statute was not followed here.”

Nuffer issued an injunction stating that the San Juan County Clerk of Courts and the Utah Lieutenant Governor’s Office are now restrained from making any further action against Grayeyes’ voter registration and his declaration for candidacy.

CLERK BELIEVED THAT GRAYEYES WAS NOT ELIGIBLE TO VOTE

Nielson had earlier this year made a decision on Grayeyes’ voter status and determined, through his own independent investigation into Grayeyes’ residency, that he was not eligible to vote. The clerk had further reasoned that Grayeyes would not be an eligible candidate for the ballot, either, but Judge Nuffer said that the clerk’s line of reasoning “conflated” two separate statutes that are in no way linked.

Grayeyes’ voter registration challenge was based upon the complaint of a third person — Black — who said she had gone to check on where Grayeyes resided and later told the clerk that he was not living in San Juan County. 

But Nuffer explained that according to state statute, the San Juan County clerk did not have the authority to launch an independent investigation into Grayeyes’ residency.

The judge heard objections to and discussed some of the 17 exhibits that are filed in the case discovery, including emails and documents from the San Juan County Clerk of Courts.

Hamilton objected to the authenticity of a 2012 email that Grayeyes now refers to as “a residency challenge.” The email had been sent between the clerk’s office and Grayeyes in 2012 just before the November election, Nuffer said. 

Nuffer said, “The email seems to imply an address verification with Mr. Grayeyes’ financials.”

Grayeyes’ attorney, Steven Boos, responded by saying, “I think it’s clear from the document he was looking into the physical address of Mr. Grayeyes.”

“It does seem odd that it came up for no obvious reason,” Nuffer said. 

EMAILS TO SHERIFF’S OFFICE AND TO LIEUTENANT GOVERNOR’S OFFICE

A key exhibit in the case was about due process. Grayeyes had filed a declaration of candidacy on March 9 with the San Juan County Clerk of Courts, to be placed on the November ballot for the San Juan County Commissioners race. 

By Utah Code, Nuffer said, the latest date that anyone could have objected to Grayeyes’ candidacy was some time around March 20. But the following day, Nielson sent an email to the San Juan County Sheriff’s Office saying that there was a question of Grayeyes’ address in 2012, and asked the sheriff’s office to collaborate in launching an investigation.

Judge Nuffer read Nielson’s March 21 email to the sheriff’s office aloud to the court: “It might not hurt to send someone out there ... to take pictures ... to look around.”

Correspondence was also discussed in regard to Nielson’s contacting the Utah Lieutenant Governor’s Assistant Deputy Director of Elections asking for direction on how to handle the challenge to Grayeyes’ residency and voter registration.

According to Nuffer, an email from the Lieutenant Governor’s Office “seems to say that you can challenge a voter registration.” But Nuffer looked directly at the defense table and emphatically said, “A candidate’s voter registration — but not a candidacy.”

Nuffer then said, “It looks to me like since the candidacy challenge had expired, Nielson went to the voter registration challenge because it had not expired.”

In defense, Hamilton said that Nielson had admitted to the “error” in his previously recorded deposition.

“[Nielson] had received no to little training on how to handle this situation ... he went to his predecessor to ask ... that’s why he contacted the sheriff’s office and the lieutenant governor’s office to discuss the process,” Hamilton said.

Though the San Juan County Clerk had affirmed the voter residency challenge, Nuffer said there is no link between a voter registration challenge and a candidacy challenge.

“Does being disqualified as a voter automatically take a candidate off the ballot?” Nuffer asked the defense table. 

Hamilton stood and said there is “no correspondence between anybody saying this is so.”

Nuffer said the San Juan County Clerk did send Grayeyes a letter and told him that his ability to vote and to hold office had been challenged based upon the complaint made about his residency.

QUESTIONING FALSIFIED DOCUMENTS 

The San Juan County Clerk had backdated an April document to reflect a March date, and Nuffer said it looks like falsification. 

“In my view, this is a false document,” he said. “When an official is falsifying a document, it is a cause for concern ... why would he do that?”

“Again,” said Nielson’s attorney, “he has admitted to making the mistake.”

Nuffer said that Nielson and Black had met and made the decision to sign the document with a March 20 date, although whether Black actually made an effort to go look for Grayeyes’ house during that time was disputed.

Nuffer said the clerk then sent Grayeyes a letter stating that due to his residency, he could not be on the ballot. Nuffer again told the defense that there is “a difference between voter status and eligibility for candidacy.”

VOTER STATUS DOES NOT DISQUALIFY CANDIDACY

The defense maintained that their way of reasoning made sense, and Hamilton said, “This was a voter residency challenge and if it affected his ability to vote, it would affect his ability to be a candidate.” 

Nuffer disagreed, saying that there are two separate statutes at play. One statute governs a voter challenge, and a separate statute dictates a candidacy challenge. 

“These are two separate codes. The defense is trying to link them to say the eligibility of a voter registration is a requirement for disqualification of candidacy,” Nuffer said. 

Hamilton challenged Nuffer and said, “If he didn’t meet the residency requirement, he didn’t meet the requirement to be a candidate.”

Nuffer said the question is over whether Grayeyes is eligible to take the position, not whether he meets the requirements to be a candidate. 

Hamilton said there is a lack of case law to define the issue with respect to the eligibility requirement. 

“If you read the statutes as they’re written, it seems to be nonsensical,” Hamilton said. 

Nuffer replied, “As I’ve often said, my job is not to fix the nonsense the state legislature makes.”

SCRUTINY OF DUE PROCESS

Nuffer ultimately said that Grayeyes is a candidate and an eligible voter, and said the San Juan Clerk’s “actions did not comply with state statute.”

Nuffer also reflected on the violation of Grayeyes’ due process. 

“The idea that voter eligibility can be used to challenge candidacy does not exist in Utah law,” Nuffer said.

Acting without statutory authority, Nuffer said, is contrary to the due process of the law and is invalid. 

“Nielson solicited Black to backdate the documents outside of his legal authority,” Nuffer said.

Nuffer issued an injunction for Nielson and other officials and parties in the suit to refrain from taking further action against Grayeyes.

The judge warned that the ruling does not bar any future challenges of making a determination as to Grayeyes’ eligibility to hold the position in office.

Moving forward, Nuffer urged the counsels to reevaluate what facts are left in the case to dispute in the lawsuit, and asked the counsels to follow up with him before the next hearing is scheduled.

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