Hendo Filing

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A filing over Mayor Andy Hafen's term limits.

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    Electronically FiledJul 18 2014 03:25 p.m.Tracie K. LindemanClerk of Supreme Court

    Docket 65716 Document 2014-23440

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    T BLE OF CONTENTSTABLE OF CONTENTS iTABLE OF AUTHO RITIESI. INTRODUCTION .1II. INTERESTS OF THE CITY OF HENDERSON 2III. SUMMARY OF ARGUMENT 3IV. FACTSV. ARGUMENT

    A. W orkman is Not a Com peting Office Holder. 6B. Workman s Petition for Writ Relief Seeks to Eviscerate Nevada s Robust

    Body of Law Governing Elections and Would Disrupt the EfficientGovernance of the City

    C. Workman s Petition for Mandamus Relief Invites this Court to Bend, ifNot Break, the Boundaries Among the Co-Equal Branches ofGovernment 12

    VI. CONCLUSION 6VII. CERTIFICATE OF COMPLIANCE 8VIII. CERTIFICATE OF SERVICE 9

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    T BLE OF UTHOR ITIESCasesBanks v. Zippert, 470 So. 2d 1147, 1149 Ala. 1985) 2City of Sparks v. Sparks Mun. Co urt, 302 P.3d 1118, 1128, 129 Nev. Adv. Rep. 38Nev. 2013) 4,15

    Child v. Lomax, 124 Nev. 600, 606, 188 P.3d 1103, 1107 2008) ssimEx. Rel. Penrose v. Greathouse 48 Nev. 419, 422, 233 P. 527, 528 1925) .12Galloway v. Truesdell, 83 Nev. 13, 18, 422 P.2d 237, 241 1967) 3Heller v. Legislature of Ne v., 120 Nev. 456, 464, 93 P.3d 746, 751 2004)....passimIn re Moore 65 Nev. 393, 397, 197 P.2d 858, 860 1948)In re Board of School Directors of Carroll Twp. 407 Pa. 156, 180 A.2d 16, 17 Pa.1962) 0Ingersoll v. Lamb, 75 Nev. 1, 4, 333 P.2d 982, 984 1959) 7, 8John son v. Collins, 11 Ariz. App. 327, 464 P.2d 647, 651Ariz. Ct. App. 1970) 12

    Lorton v. Jones, 322 P.3d 1051, 1054, 130 Nev. Adv. Rep. 8Nev. 2014) passim

    Lueck v. Teuton, 125 Nev. 674, 679, 219 P.3d 895, 898 2009) passimSche ibel v. Pavlak , 282 N.W.2d 843, 847 Minn. 1979) 14State v. Lutz, 226 Ala. 497, 147 So. 429, 432 Ala. 1933) .12State v. Triplett, 134 Ohio St. 480, 17 N.E.2d 729, 731 Ohio 1938) 12State v. Wells, 8 Nev. 105, 109 1872) 2

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    State Ex Rel. Warder v. Gainer 153 W . Va. 35, 167 S.E.2d 290, 296W . Va. 1969) 12

    Territory by Attorney Gen. v. M orita 41 Haw . 1, 25 Haw . 1955) 12

    Nevada Constitution ProvisionsNev. Const. art 2, 9 , 9Nev. Co nst. art 3, 1 13Nev. Const. art 4, 6 13Nev. C onst. art 15, 3

    StatutesNRS 35 et seq. 6, 7, 9NRS 266 et seq.NRS 293 et seq.NR S 293.182 13NR S 293.407 .13NRS293.410 9NRS 293.410 2) b) .7NRS 293.410 2) c) 7NRS 293.417. .7NRS 293C et seq.NRS 293C.175 7NR S 293C.175 4) 1 3

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    NRS 293C.180 1) 7NRS 293C.186 , 13NRS 293C.186 4) , 10NRS 293C.186 6) 0NRS 293C.370NRS 306 et seq 3, 9, 10NRS 306.015 6) 1

    Henderson C ity Charter ProvisionsHenderson City Charter Sec. 1.07 0 .3 6 7 8Henderson City Charter Sec. 1.080 6, 8, 16Henderson City Charter Sec. 2.030 16Henderson City Charter Sec. 2.060 6

    Secondary Sources1 Ronald D Rotunda John E. Nowak Treatise on Constitutional Law 3.12 at394 3d ed. 1999) 3

    Nevada R ules of Appellate ProcedureNRA P 29 a) 1

    v

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    23456789

    10

    1213141516171819202122232 425262728

    BRIEF OF MICUS CURI E CITY OF HENDERSON IN SUPPORT OFRESPONDENTS AND REAL PARTY IN INTEREST

    I INTRODUCTIONPetitioner Rick Workm an ( Wo rkman ) was one of the seven candidates who

    ran for the office of Mayor of the City Henderson (the City or Henderson ) in aprimary election held on April 2, 2013. Prior to the election, none of thecandidatesincluding Workmanfiled any challenge concerning the qualificationsof Real Party in Interest And y Arthur Hafen ( Hafen or Ma yor Hafen ).

    When the votes were counted following the election, Hafen received 54.84of the votes cast and pursuant to NRS 293C.175(4) 2 was declared elected to theoffice of Mayor of Henderson. Workman only received 37.18% of the votes cast,and like the five other candidates for Mayor, did not receive a sufficient percentageof the votes required to be declared elected to the office of Mayor. At no timefollowing Hafen's election, until now, did any candidate file a post-election contestor challenge, of any k ind, concerning his qu alification for office.

    Now, more than a year after Mayor Hafen's election and assumption ofoffice, Workman asks this Court for unprecedented relief. Presumably, by seekingleave to file a writ of quo warranto and declaring himself a competing officeholder , which he is not, Workman is asking (or will ask) this Court not only to

    he City of Henderson files its amicus brief without leave of the parties orthe Court pursuant to NR AP 2 9(a).2 NRS 2 93 C.17 5 (4) provides:

    If, in a primary city election held in a city of population category oneor two, one candidate receives more than a majority of votes cast inthat election for the office for which he or she is a candidate, thecandidate must be declared elected to the office and the candidate'sname must not be placed on the ballot for the general city election. If,in the primary city election, no candidate receives a majority of votescast in that election for the office for which he or she is a candidate,the names of the two candidates receiving the highest number of votesmust be placed on the b allot for the general city election.

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    I remove Hafen (who won a more than a majority of the votes cast in the election),2 but also to appoint Workman (who did not win more than a majority of the votes3 cast in the election) as the Mayor of Henderson. Alternatively, if the Court does not4 agree that Workman is entitled to the office of Mayor of Henderson through a quo5 warranto action, he appears to be asking this Court to mandate that Mayor Hafen6 immediately be removed from office, and install Workman or create a vacancy.7 None of these options are in the interest of the City or its residents.8 ranting Workman s Petition will not only work a significant hardship on the9 City in this case, but it will open the door for future, unpredictable disruptions of

    10 the City s government and operations. Granting Workman s Petition would11 endorse the following untenable precedents: (1) a person who has received less12 than the majority of the votes cast in a primary election for an office may obtain the13 office anyway; and (2) any person, at any time, may challenge the results of an14 election in court without any regard for, or attempted compliance with, the statutory15 and constitutional provisions governing challenges of candidates and elected16 officials. Such precedents would jeopardize the sanctity of the election process and17 are inconsistent with the principles of effective and reliable government.8 hus, this Court should deny Workman s request for leave to file a writ of

    19 quo warrant and his petition for a writ of mandamus or other extraordinary relief.20 However, if this Court is inclined to grant any writ relief to Workman, it should21 limit that relief to the removal of Hafen as the Mayor of the City and allow the City,22 to fill the vacancy pursuant to the provisions of the Henderson City Charter.23 I INTERESTS OF THE CITY OF HENDERSON24 he City has multiple interests in Workman s request for leave and writ25 petition. First, the City is interested in the efficient operation of the City26 government. A vacancy created in the office of Mayor would be a significant27 hardship on the City, requiring the appointment or special election of a new Mayor28 and potentially the appointment or special election of a new council person. ee

    2

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    1 Declaration of Sabrina Mercadante, City Clerk for the City of Henderson, attached2 hereto as Ex. A. at 4 1111 A special election would be a significant cost to the City3 econd the City has significant responsibility to properly enforce procedures4 challenging the qualifications of candidates. The City has an interest in making5 sure those procedures are followed and in exercising its statutory discretion6 regarding such challenges. The City also has an interest in relying on the statutory7 and constitutional procedures that govern challenges of candidate qualifications,8 election contests, and removing candidates, including: the provisions set forth in9 NRS Chapters 293 and 293C, valid quo warranto proceedings initiated by rightful

    10 office holders, and removal of public officials as set forth in NRS 306 and the11 Constitution of the State of Nevada.12 urther, the City has an interest in supporting the will of its residents who13 participated in the primary election, who in this case cast more than a majority of14 their votes for Mayor Hafen and, as an obvious corollary, did not cast more than a15 majority of their votes for Workman.16 inally, the City has an interest in seeing that its laws, as set forth in its City17 Charter, are followed. For example, if the Court is inclined to create a vacancy as a18 result of Workman's request for leave or writ petition, the City has an interest in19 seeing that the vacancy is filled according to Section 1.070 of the Henderson City20 Charter, which outlines the procedures for filling vacancies in elective office.21 II. SUMMARY OF ARGUMENT2 2 he City's support of Respondents and Mayor Hafen is threefold. First,23 Workman claims to be a competing office holder. Presumably, this claim relates24 to the requirements for bringing a quo warranto action and suggests to this Court25 that Workman is somehow entitled to the office of Mayor of Henderson. There are26 many ways under Nevada law that a person may be entitled to hold the office of the2 7 he estimated cost to hold a special election would be approximately28 $123,000.00. ee Ex. A at 44 10

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    1 Mayor of Henderson, but Workman has met none of the