Electronically Filed

Jul 01 2014 09:20 a.m.

Tracie K. Lindeman
Clerk of Supreme Court
Docket 65716 Document 2014-21398
Petition for Writ of Quo Warrant and Response to the alternative Petition for Writ
of Mandamus, pursuant to this Court's order dated May 28, 2014.
I.
FACTS
Real party in interest, Arthur "Andy" Hafen is currently serving as the
Mayor of the City of Henderson. Petitioner's Appendix (hereinafter "PA") at 45.
Mr. Hafen had previously been elected Mayor of Henderson in the general election
held on June 2, 2009, and served the entire term. PA at 41, 45. Prior to being
elected Mayor in 2009, Mr. Hafen served as a member of the Henderson City
Council. PA at 45. He was first elected to the Council in June, 1987, and has
served continuously as a councilmember until being elected Mayor in 2009. Id.
In 2013, Mr. Hafen again ran for Mayor of Henderson. He was elected to
that position in the primary city election held on April 2, 2013, with 9,618 votes, or
54.84%. PA at 6; see also NRS 293C.175(4) (candidate who receives more than a
majority of votes in the primary election is declared elected). Petitioner Rick
Workman also ran for Mayor of Henderson in that election, and had the second-
highest number of votes, with 6,520 votes, or 37.18%. Id.
No challenge to Mr. Hafen's eligibility for office was filed in connection
with the 2013 election for mayor. See NRS 293C.186 (providing for challenges to
candidates, which may be filed by an elector and pursued by the city attorney if the
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city attorney finds it to be supported by probable cause).
The Attorney General is informed and believes, based on information from
the League of Cities, that Mr. Hafen is the only sitting mayor who has a vote on all
issues that come before their city council and who has served more than a
combined twelve years as mayor or city councilmember.
The Charter of the City of Henderson provides: "The legislative power of
the City is vested in a City Council consisting of four Council Members and the
Mayor." Henderson City Charter, Art. II, 2.010(1), which is similar to the
charter of the City of Reno. See Lorton v. Jones, 130 Nev. Adv. Op. 8, 322 P.3d
1051, 1053 (2014), reh'g denied (Mar. 5, 2014).
II.
ARGUMENT
A. Workman's attempt to oust Mr. Hafen from office is barred by laches.
"Laches is an equitable doctrine which may be invoked when delay by one
party works to the disadvantage of the other, causing a change of circumstances
which would make the grant of relief to the delaying party inequitable." Carson
City v. Price, 113 Nev. 409, 412, 934 P.2d 1042, 1043 (1997) (internal quotations
omitted). In determining whether laches applies, this Court considers: "(1)
whether the party inexcusably delayed bringing the challenge, (2) whether the
party's inexcusable delay constitutes acquiescence to the condition the party is
3
challenging, and (3) whether the inexcusable delay was prejudicial to others."
Miller v. Burk, 124 Nev. 579, 598, 188 P.3d 1112, 1125 (2008).
In Burk, this Court held that the Legislature was barred by laches from
arguing that the language in the term limits ballot initiative was confusing to voters
when they passed it in 1994 and 1996. Id. at 598-99. The court reasoned that the
challenge to whether the language was confusing was ripe pre-election, before
voters voted on the question, because the language was available and that is the
sort of challenge that is normally resolved in determining whether the initiative has
met all the requirements for placement on the ballot. Id. at 598.
By waiting until 12 years after the initiative passed, the court found that the
Legislature had acquiesced to the language. Id. It also found that it would be
prejudicial to the voters if the court were to agree with the Legislature and strike
the term limits just as they were about to be implemented, after the voters had
approved the language 12 years before and expected it to become effective
imminently. Id. at 599.
Similarly in this case, Petitioner Workman is barred by the doctrine of laches
from now seeking to oust Mr. Hafen from office. All of the facts necessary to
bring a challenge to Mr. Hafen's eligibility were apparent when he filed to run for
office in 2013. Also, NRS 293C.186 provides for a special, expedited challenge
procedure to test a candidate's qualifications and eligibility before the election. If
4
the city attorney finds probable cause, the city attorney brings the action, rather
than the cost falling upon the challenger. However, Workman did not bring a
challenge at that time, nor did anyone else. Instead, he brings this challenge more
than a year after Mr. Hafen has been elected to office.
This constitutes inexcusable delay because all of the relevant facts were
available at the time and the law provides a special, expedited challenge process
specifically designed to deal with this type of eligibility determination, and at little
or no cost to the challenger.
The delay also constitutes acquiescence to the condition. Workman could
have brought a challenge during the period designed for such challenges, and
thereby could have timely tested Mr. Hafen's eligibility and potentially removed
him from the ballot. If the city attorney did not find probable cause, Workman
could have filed for declaratory relief or other relief before the election. But since
he did not, he acquiesced to the situation where Mr. Hafen was running for another
term for Mayor, after having served as Mayor or on the Council for more than 12
years.
Finally, if the court were to agree with Workman's challenge now, it would
prejudice Mr. Hafen and all the voters who voted for him. The voters cast their
ballots without any notice that a challenge to Mr. Hafen's eligibility might strip
them of their chosen representative in the middle of his term. Like in Burk, if the
5
challenge had been timely brought, voters would have been able to choose a
different candidate who would be able to serve the whole term. Additionally, new
or different candidates may have also decided to get in the race.
This Court's recent decision in Lorton v. Jones, 322 P.3d 1051 (Nev. 2014)
does not excuse Workman's failure to timely challenge Mr. Hafen's eligibility. In
Lorton, this Court determined that the Mayor of Reno is a member of the City
Council of Reno, and therefore a person who has served on the Reno City Council
for 12 years or more is barred by term limits from being elected Mayor of Reno.
Id. at 1058-59. The Lorton case therefore resolved the legal question of whether
the office of Mayor in Reno is a distinct and separate office from that of
Councilmember for purposes of term limits. Id. at 1053.
Although the legal issue resolved in Lorton had not been decided at the time
of the April, 2013 primary when Mr. Hafen was elected, that is immaterial because
all of the necessary facts to bring the challenge were apparent. For example,
Workman's Petition in this case emphasizes the length of time that Mr. Hafen has
served in the City of Henderson, and the policy behind the term limits initiative.
Pet. at 13-14. He argues that this Court would be failing to enforce the people's
will if it did not now remove Mr. Hafen from office. Pet. at 17. But all of these
facts and all of these policy concerns were well-known to Workman at the time he
was running against Mr. Hafen for Mayor. Yet Workman did not complain until
6
after Mr. Hafen has already been elected and after this Court decided, in a different
case, whether mayor and councilmember could be considered the same "office" for
purposes of term limits.
The delay is inexcusable because nothing prevented Workman from bringing
his challenge before the election, the normal time for resolving such disputes. But
now the facts have materially changed Mr. Hafen was elected with more than
50% of the vote with both Mr. Hafen and the voters who voted for him acting on
the assumption that he was eligible to serve and in fact would serve the term that
he was elected to.
This Court should follow its reasoning in Burk and reject Workman's
attempt to oust an elected office holder as barred by laches, because he could have
brought a proper challenge pre-election, but failed to do so. Both the Motion for
Leave to file a complaint in quo warrant and the alternative Petition for Writ of
Mandamus should be denied for this reason alone.
B. Leave to file a complaint in Quo Warrant should be denied because
Petitioner lacks standing.
Workman asserts that leave should be granted because quo warrant is the
only relief available to him. Petition, pp. 3-4. The error in this argument is that it
presupposes that Workman has standing to seek relief from the courts in the first
instance.
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1 . Workman lacks standing to initiate a quo warranto action against
Mayor Hafen because Workman has not pled facts which, if true,
would show that he is entitled to the office of Mayor of Henderson.
Generally, a person lacks standing to bring an action in quo warranto unless
the person has pled facts that show that he is entitled to the office. See Lueck v.
Teuton, 1 25 Nev. 674, 679, 21 9 P. 3d 895, 898 (2009); Doe v. Bryan, 1 02 Nev. 523,
525, 728 P. 2d 443, 444 (1 986) (justiciable controversy requires a claim of right by
a person with a legally protectable interest in the controversy).
It is not entirely clear whether Workman is asserting that he is entitled to be
declared the Mayor of Henderson. Initially, Workman does not appear to do so,
since he is requesting leave to file under NRS 35. 090, rather than a right to file as a
claimant to the office under NRS 35. 050. Pet. pp. 2-3 (requesting leave to file), pp.
8-9 (requesting Mr. Hafen be removed from office, but not requesting that
Workman be declared to be Mayor). As the court explained in State ex rel.
Holland v. City of Reno, 70 Nev. 1 67, 1 69, 262 P. 2d 953, 954 (1 953), the general
rule is that only the Attorney General may bring quo waiTanto, but that there is an
exception for a person who himself claims to be entitled to the office.
But Workman also asserts that he is "a competing office holder. " Petition,
p. 4. He notes that he ran against Mr. Hafen for the office of Mayor, and that he
obtained the second-highest number of votes. Id. To the extent these statements
are intended to assert that Workman is entitled to be Mayor of Henderson, these
8
arguments fail. Workman is not entitled to the office of Mayor because he did not
obtain the highest number of votes. As a losing candidate, he has no property
interest or other legally recognizable interest in the office of Mayor, and he is not a
"competing office holder." See Snowden v. Hughes, 321 U.S. 1, 6-7, 64 S.Ct. 397
(1944); Taylor v. Beckham, 178 U.S. 548, 577-78, 20 S.Ct. 890 (1900).
To the extent Workman is alleging that he has standing because he would
have been elected, had Mr. Hafen not run, that argument also fails. The outcome
of the election, had Mr. Hafen been barred from running, is speculative. Thus it is
an insufficient basis for standing under either NRS 35.050 or NRS 35.090.
In an analogous situation, this Court has held that where a deceased
candidate receives a majority of the votes, that does not mean that the candidate
with the next-highest number of votes is elected. Ingersoll v. Lamb, 75 Nev. I, 4,
333 P.2d 982, 984 (1959). The court in Lamb explained: "if a majority of those
voting, by mistake of law or fact, happen to cast their votes upon an ineligible
candidate, it by no means follows that the next to him on the poll should receive
the office Id. (quotations omitted). Although the votes for the deceased
candidate are not effective to elect the deceased person, "that is no reason why they
should, in effect, be counted for the former, who, possibly, could never have
received them." Id.
////
9
Thus the fact that Workman ran against Mr. Hafen and got the second-
highest number of votes does not mean that, even should this Court find Mr. Hafen
was ineligible, Workman is entitled to be declared elected Mayor of Henderson.
Instead, a vacancy in the office would result. For this reason, Workman does not
have any legally protectable interest in or claim to the office of Mayor, and he
therefore lacks standing to seek a writ of quo warranto.
2. Workman lacks standing as a private citizen because quo warrant
is not available where the petitioner has only a generalized interest
in seeing the laws enforced.
Workman also lacks standing to bring quo warrant in his capacity as a
private citizen. "The Legislature has not authorized quo warranto petitions by
private citizens with only a general interest in seeing this state's laws upheld."
Lueck v. Teuton, 125 Nev. 674, 679, 219 P.3d 895, 898 (2009). As this Court
explained in Teuton, a person with only a general interest in seeing the laws upheld
may only bring quo waffanto under Chapter 35 with participation of the Attorney
General and with the leave of the court. Id. at 679 (citing NRS 35.040).
Workman is in the same position that Mr. Lueck was in Teuton. Id. In
Teuton, Mr. Lueck did not claim to be entitled to Judge Teuton's office, and
instead only claimed to have an interest as a citizen in the enforcement of the laws.
Id. The court held that Chapter 35 only allows individual citizens to bring quo
warranto in two circumstances: (1) when they claim entitlement to the office; or (2)
10
with the participation of the Attorney General and leave of court. Id.
Since the Attorney General in Teuton declined to bring the action, and Mr.
Lueck was not claiming Judge Teuton's office, the court concluded: "Lueck
therefore does not fit within either provision of NRS Chapter 35 that addresses
who may institute a quo warrant action to oust an individual from office, and
consequently, he does not have standing to institute such an action under that
chapter." Id. Therefore, like in Teuton, Workman lacks standing to institute quo
warrant.
The court in Teuton reached the merits of the petition, even though it found
that Mr. Lueck lacked standing and denied his motion for leave to bring quo
warrant. Teuton, 125 Nev. at 677, 219 P.3d at 897. But, contrary to Workman's
arguments, the court's decision to reach the merits in Teuton does not control this
case. Cf Pet. at 11. Teuton involved a district judge's right to continue to hold the
office after the next general election following his appointment. Id. The court
therefore proceeded on the basis of its inherent powers to "preserve the integrity of
the judicial process" and its "supervisory authority and duties over the proper
administration of justice." Id. Here, the Petition does not involve a judicial office
or officeholder, therefore Teuton does not permit Workman to proceed despite his
lack of standing.
11
3 Workman proposes an incorrect standard for review of the
Attorney General's refusal to bring quo warranto.
Next, Workman argues that he may nevertheless be granted permission to
seek quo warranto if the Court determines that the Attorney General's refusal to
bring a quo waffanto action "under the circumstances was improper and not in the
public interest." Pet. p. 3. Workman relies on State ex rel. McMillan v. Sadler, 25
Nev. 131, 58 P. 284, 286 (1899) 1 , State ex rel. Holland v. City of Reno, 70 Nev.
167, 169, 262 P.2d 953, 954 (1953), and an unpublished Ninth Circuit decision.
Neither Sadler nor Holland is applicable here. First, Sadler was an early
case dealing with a petitioner who claimed to be entitled to the office of governor.
58 P. at 285-86. The Attorney General had refused to bring the action, and at the
time, no statute granted standing to do so by a person claiming entitlement to the
office. Id. at 286. Under those circumstances, the court permitted the petitioner to
bring the action, because he had shown by complaint that he was entitled to the
office, and once the Attorney General refused to bring the action, he had no
remedy. Id.
Holland involved a complaint and information filed by owners of property
which the City of Reno proposed to annex. 262 P.2d at 953. The court found that
the petitioners lacked standing because they had never presented the matter to the
Modified on unrelated matters by 25 Nev. 131, 59 P. 546 (1900) and 25 Nev.
131,63 P. 128 (1900).
12
Attorney General. Id. at 954. The court relied on Sadler, characterizing that
decision as "a review of the attorney general's actions and, in effect, a
determination that his refusal under the circumstances was improper and not in the
public interest." Id. Based on this characterization of Sadler, the court in Holland
then stated that the court may review the Attorney General's decision not to bring
the case, and that the review "may be had upon application of a relator for leave to
bring action." Id.
However, Holland is not applicable to this case for three reasons. First, that
statement in Holland was merely dictum, because the court had already concluded
that petitioners lacked standing since they failed to even present the issue to the
Attorney General.
Second, the court in Holland apparently overlooked the fact that in Sadler,
the petitioner was in the unique position of claiming entitlement to the office
himself, clearly had standing to assert that claim, but that, at the time, he had no
remedy once the Attorney General refused to bring the action. That has since been
con- ected by the enactment of NRS 35.050, which grants standing to persons
claiming entitlement to the office themselves.
Third, Holland is distinguishable from this case because the plaintiffs in
Holland were owners of the land that the city proposed to annex, and therefore
apparently had a direct and personal interest in the annexation, or at least an
13
interest that was distinguishable from the public at large. Compare Teuton, 125
Nev. at 679, 219 P.3d at 898 (noting that Lueck failed to demonstrate an interest in
quo warrant which would exempt him from the requirements of NRS Chapter 35).
By contrast, in this case, Workman has no individual stake in seeing Mr. Hafen
removed from office. Like in Teuton, he has only a generalized interest in
enforcement of the laws which is indistinguishable from that of the public at large.
Furthermore, the reasoning in Holland appears to conflict with this Court's
later analysis in Teuton, where it held that a private party cannot bring quo
warrant, except with both the participation of the Attorney General and with leave
of court. Teuton, 125 Nev. at 679, 219 P.3d at 898. In Teuton, the court did not
review the propriety of the Attorney General's refusal to bring the action. See
generally id.
The analysis of Teuton is the more recent analysis of standing to bring quo
warranto, and it is also the most consistent with NRS 35.040. That statute
provides:
Such officer may, upon the officer's own relation, bring
any such action, or the officer may, on the leave of the
court, or a judge thereof, bring the action upon the
relation of another person; and, if the action be brought
under subsection 1 of NRS 35.010, the officer may
require security for costs to be given as in other cases.
NRS 35.040 (emphasis added).
fill
14
The Court should reject Workman's argument that it must review the
Attorney General's refusal to initiate quo warrant to determine whether it was
improper and against the public interest. Pet. at 3-4. The cases Workman relied
upon involved petitioners who clearly had a direct interest in the case (and
therefore would have standing), but where the statute did not provide them a direct
right to sue and the Attorney General declined to do so.
Here, Workman lacks standing because he has no direct interest in ousting
Mayor Hafen. As explained in Teuton, when the matter is one of enforcement of
the laws generally, standing is reserved only to the Attorney General to bring an
action on behalf of the State as a whole, to address matters of concern to all
citizens. Teuton, 125 Nev. at 679, 219 P.3d at 898.
This is proper because quo warranto is fundamentally an action by the
sovereign to correct a harm against the public and the state by the unlawful
exercise of a franchise granted by the state. Holland, 70 Nev. at 170, 262 P.2d at
954. The narrow standing requirement also protects office holders from frivolous
or harassing lawsuits attempting to oust them from office, by requiring review by
the Attorney General. See Lewis v. Drake, 641 S.W.2d 392, 395 (Tex. App. 1982)
("[public officers] should not be called on to defend their authority unless a proper
legal officer of the State has determined that the question raised is serious and
deserves judicial consideration"). As discussed below, this is also consistent with
15
other states' cases which hold that mandamus will not lie to compel the Attorney
General to bring quo warrant.
4. This is not an extraordinary case requiring exercise of the
Court's original writ authority when no party has standing.
As discussed in Teuton, NRS Chapter 35 does not permit a person to seek a
writ of quo warranto absent participation by the Attorney General. Teuton did not
address the court's original power to issue writs under Nev. Const. Art. 6, 4. See
Halverson v. Hardcastle, 123 Nev. 245, 258, 163 P.3d 428, 438, n. 8 (2007)
(explaining that civil actions under NRS Chapter 35 are distinct from the courts'
original power to issue writs under the Nevada Constitution, and that a "true" writ
of quo warranto pursuant to Art. 6 of the Constitution may issue where the remedy
provided in NRS Chapter 35 is inadequate).
However, Article 6, 4 does not assist Workman in this case, again because
he has no special interest distinct from that of the general public in seeing Mr.
Hafen removed from office. In Halverson, for example, this Court found that
Judge Halverson had standing to seek a writ of quo warranto because she was
challenging certain actions by the chief judge as intrusion upon her own office as
district judge. 123 Nev. at 257, 163 P.3d at 437, n. 6. 2
2
The court in Halverson mentioned the distinction between "civil actions" under
Chapter 35, which are created by the Legislature, and the court's original
jurisdiction to issue writs under Article 6 of the Nevada Constitution. But it did not
clearly state under which mechanism (or both) Judge Halverson could proceed.
16
In this case, Workman has no such interest, and therefore he lacks standing
to seek a remedy under either Chapter 35 or Article 6, 4. See Teuton, 125 Nev. at
679, 219 P.3d at 898 (petitioner had no standing where his interest was
indistinguishable from that of the public in generally seeing the laws enforced); see
also Heller v. Legislature of State of Nev., 120 Nev. 456, 461, 93 P.3d 746, 749
(2004) (stating, in connection with a petition for writ of mandamus, that a person
must demonstrate a "beneficial interest" in order to have standing, and that this
affects the court's original jurisdiction to issue writs) (citing Delogu v. City of
Portland, 843 A.2d 33, 34 n. 1 (Me.2004) and other cases).
Furthermore, Workman had a speedy and adequate remedy available at law:
the challenge procedure in NRS 293C.186. The only reason this legal remedy is
no longer available is that Workman failed to take advantage of it in a timely
manner.
Finally, Workman's lack of standing cannot be overcome by simply arguing
that this is a case of great importance, that there are no factual disputes, etc. Cf.
Pet. at 11. As the Rhode Island Supreme Court held in State ex rel. Webb v. Cianci,
591 A.2d 1193, 1198 (R.I. 1991), these concerns are not the proper criteria for
determining whether to grant leave to challenge a public officer's right to hold
Presumably, because she was challenging an alleged usurpation of her own public
office by the chief judge, she had standing to proceed under either NRS 35.050 or
Article 6, 4.
17
office. Instead, the court explained that it had only granted leave to file a petition in
equity in the nature of quo warranto without the Attorney General's intervention in
cases where the petitioner was himself claiming title to the office. Id. at 1198-99.
The court stated:
The petitioner argues that the matter before us constitutes
a proper case because it raises important state
constitutional issues and lacks any factual dispute. In
doing so, he misinterprets the criteria we have used in
prior decisions as a basis for determining what
constitutes a proper case.
We must reiterate that the petition in equity to challenge
Cianci's title to the office of mayor of the city of
Providence without the intervention of the Attorney
General seeks to vindicate a purely public right on behalf
of the citizens of Providence. The petitioner makes no
claim that he seeks to vindicate a private right on his own
behalf by claiming title to the public office in dispute.
Therefore, following long-established precedent, we
conclude that this petition in equity must be denied.
Id. at 1198-99.
Like in Cianci,
this Court should deny Workman's petition because he has
no interest in the matter distinct from that of the general public.
1 1 1 1
1 1 1 1
1 1 1 1
N H
1 1 1 1
18
WORKMAN'S PETITION FOR WRIT OF MANDAMUS
SHOULD BE DENIED
Workman requests that, if the Court denies his motion for leave to seek a
writ of quo warrant, it grant him alternative relief in the form of a writ of
mandamus commanding the Attorney General or Secretary of State to bring a
petition for writ of quo warrant against Mr. Hafen. Pet., pp. 7-8.
A. The Secretary of State has discretion in enforcement of election laws
therefore mandamus will not lie to require the Secretary to initiate
quo warranto.
Mandamus is an extraordinary remedy, and it is up to this Court's discretion
whether to entertain a petition for writ of mandamus. State ex rel. Depit of Transp.
v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). "A writ of
mandamus will issue when the respondent has a clear, present legal duty to act."
Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603, 637 P.2d 534, 536
(1981). The duty in question must be ministerial, mandatory, and admitting of no
discretion. State Bar of Nevada v. List, 97 Nev. 367, 368, 632 P.2d 341, 342
(1981); NRS 34.160. Mandamus will not lie to control discretionary action, unless
that discretion is manifestly abused or exercised arbitrarily or capriciously. Id.
Mandamus is not available to compel the Secretary of State to initiate quo
warranto. With the exception of persons claiming to be entitled to the office, quo
warrant is generally reserved to the Attorney General alone.
19
The Secretary of State is the Chief Elections Officer of the State.
NRS 293.124. As such, he is responsible for the execution and enforcement of all
state and federal laws governing state elections. Id.
However, no statute or constitutional provision exists which imposes a clear,
present legal duty on the Secretary to act in a case such as this one, where the
election in question has already concluded, and no challenge to Mr. Hafen's
eligibility was filed. Other than pointing out that the Secretary is the Chief
Elections Officer, Workman provides no authority for why a writ of mandamus
should issue requiring the Secretary to attempt to oust Mr. Hafen from office. Nor
has Workman shown that the Secretary has abused his discretion in declining to
initiate quo warranto.
Instead, this Court has noted that typically, quo wan - anto is the exclusive
remedy for attempting to remove a person from office, and that mandamus is
appropriate only before the office is filled. Heller, 120 Nev. at 463, 93 P.3d at
751. In any event, absent a statute imposing a clear duty to act, the Secretary as
Chief Elections Officer has discretion in bringing enforcement actions. Thus
mandamus will not lie against the Secretary to require him to attempt to oust Mr.
Hafen from office.
1 1 1 1
1 1 1 1
20
B. In cases of general interest, the Attorney General has complete
discretion in whether to bring a petition for writ of quo warranto,
and that discretion is not subject to mandamus.
As a threshold matter, this Court should reject the proposition that
mandamus is available as an "alternative" to compel the Attorney General to bring
a quo warrant action. The discretion of the Attorney General in whether to bring
a petition for writ of quo warranto is the subject of a special exception to the
general rule that mandamus is available to control an abuse of discretion.
At common law, quo warranto was at first a prerogative writ of the crown,
but then evolved into an "action in the nature of quo warranto," which was a
criminal proceeding brought by the attorney general. 51 A.L.R.2d 1306. Such a
proceeding was intended to correct unlawful usurpations of office, which was
regarded as a crime against the sovereign, and a private citizen could no more
institute quo warranto than he could prosecute any other crime. Id.; see also
People ex rel. Miller v. Fullenwider, 160 N.E. 175, 176 (Ill. 1928).
Like the decision to prosecute a crime, whether to bring quo warrant was
generally considered a case of purely public interest, left to the sole discretion of
the prosecutor. "Purely public interest" matters are those were the petitioner has
no direct or personal interest in the resolution of the case, and instead has only the
same general interest of every citizen in the enforcement of the laws. See People
ex rel. McCarthy v. Firek, 125 N.E.2d 637, 640-41 (Ill. 1955). By contrast, a
21
"private interest matter" is where an individual has a direct and personal interest in
the outcome of the case, such as where the petitioner is himself claiming to be
entitled to the office. Id.
In line with this history, many states still hold that in matters of purely
public interest, the Attorney General has complete discretion on whether to act.
See e.g. Lewis v. Drake, 641 S.W.2d 392, 395 (Tex. App. 1982); Henderson v.
Miller, 228 Ill. App. 3d 260, 267, 592 N.E.2d 570, 574 (1992); People v. Wood,
104 N.E.2d 800, 804 (Ill. 1952); State ex rel. Shevin v. City of Sanibel, 318 So. 2d
177, 178 (Fla. Dist. Ct. App. 1975); State ex rel. Webb v. Cianci, 591 A.2d 1193,
1199 (R.I. 1991); Cleaver v. Roberts, 203 A.2d 63, 68 (Del. 1964). For the reasons
discussed below, this Court should follow these states.
Workman cites to an unpublished Ninth Circuit case (D'Agostino v.
Delgadillo, 111 F. App'x 885, 887 (9th Cir. 2004)), which in turn relied upon
Nicolopulos v. City of Lawndale, 91 Cal.App.4th 1221, 111 Ca1.Rptr.2d 420, 422-
25 (2001) for the proposition that "an arbitrary denial of permission [to institute
quo warranto] by the Attorney General can be challenged in a state mandamus
action." However, California's quo wan -anto statutes differ from Nevada's, and
therefore mandamus is improper here.
California's quo warranto statutes require that even a person who has a
direct and personal interest in the outcome of the case must receive leave to sue
22
from the Attorney General before bringing the action. Nicolopulos, 91 Cal. App.
4th at 1228-29, 111 Cal. Rptr. 2d at 425; see also Cal. Code Regs. tit. 11, 1
(regulations governing presentment of application for leave to sue to Attorney
General). Thus, in Nicolopulos, a California court of appeals held that, even
though the petitioner claimed title to the office, he was required to first seek leave
to sue in quo warranto from the Attorney General. 91 Cal. App. 4
th
at 1229, 111
Cal. Rptr. 2d at 426.
The California court also pointed out that the Attorney General had
generally granted leave to sue in such circumstances, and that there was no reason
to believe the Attorney General would not similarly grant leave in that case. Id.,
91 Cal. App. 4
th
at 1229, 111 Cal. Rptr. 2d at 425. The court then stated that
mandamus would be available should the Attorney General abuse his discretion by
denying leave. Id.
Thus mandamus would be available where: (1) there was an arbitrary denial
of leave to sue (as opposed to bringing the action directly) (2) to a person who had
a direct and personal interest in the outcome of the case. By contrast, Nevada
directly grants such a person standing to sue through NRS 35.050, so this process
is unnecessary. Furthermore, as discussed above, Workman has not pled facts
showing that he is or may be entitled to the office of Mayor. This case is therefore
distinguishable from Nicolopulos on both the law and the facts, since this case
23
involves only a general interest in enforcement of the laws.
The distinction between private and public interest cases is well-illustrated
by Illinois' line of cases discussing the effects of changes in that state's quo
warranto statutes. In McCarthy, 125 N.E.2d at 640, the Illinois Supreme Court
explained that, under the old statutes, even individuals who had a direct and
personal interest in the matter had to request that the Attorney General or State's
Attorney bring quo wan-anto on their behalf. If these officials refused to do so,
mandamus would lie to compel them to bring the action, if the petitioner pled facts
showing he was entitled to the office. Id.
The court then pointed out that the new quo warranto statutes permitted
persons with a direct interest in the matter to bring the action themselves. Id. It
explained that the purpose of this change was "to eliminate the cumbersome
practice of filing mandamus actions to compel the public law officers to institute
quo warrant proceedings upon the relation of private individuals." Id.
Accordingly, the mandamus procedure was eliminated so that individuals
with a private interest could bring the action directly. Id. But in matters of only
general public interest, the decision of the Attorney General was not reviewable.
See e.g., Henderson v. Miller, 592 N.E.2d 570, 574 (Ill. App. 1992) (stating that
the state's attorney and Attorney General have "complete, arbitrary and unfettered
discretion as to whether they shall institute the action."); People v. Wood, 411111.
24
514, 526, 104 N.E.2d 800, 806 (1952) (where petitioner had no direct interest,
denied both appeal and writ of error).
In Heller, 120 Nev. at 464, 93 P.3d at 751, n. 21, this Court favorably cited
Lewis v. Drake, 641 S.W.2d 392, 395 (Tex. App. 1982), where a Texas court of
appeals explained:
Public officers should be free to perform their duties
without having their authority questioned incidentally in
litigation between other parties. They should not be
called on to defend their authority unless a proper legal
officer of the State has determined that the question
raised is serious and deserves judicial consideration as
required by article 6253. This settled policy of the State
is exemplified by cases holding that the decision of the
Attorney General or the district or county attorney to
present the information under that statute is a matter of
discretion to be exercised for the protection of the public
and cannot be controlled by mandamus.
Id. (emphasis added, citations omitted).
In short, California's quo warrant procedures are similar to the old Illinois
statutes discussed above in that they require a person who has a direct and personal
interest in the case to request the Attorney General to bring quo warrant on the
person's relation. Nevada, like Illinois, has adopted a statute permitting such
persons to bring a quo warranto action themselves. NRS 35.050. Thus Nevada's
laws similarly eliminate the need for mandamus to control an abuse of discretion
by the Attorney General's authority, while affording an avenue for relief to
claimants who have alleged a direct injury or interest in the matter.
25
Here, where the case involves only a general public interest, mandamus is
not proper. Like the courts in Illinois, Texas, Pennsylvania, and the other cases
cited above, this Court should hold that mandamus is not available as an
"alternative" remedy when the matter is one of general public interest.
Similar to a prosecutor's decision whether to charge a crime, the Attorney
General's discretion is complete in such cases. This strikes an appropriate balance
between the interests of the general public in ousting those who unlawfully hold
office, while protecting officials from meritless attacks on their claim to office. If
the Attorney General's refusal to institute quo warranto could be reviewed on
mandamus, even in a case where the petitioner has no particular interest in the
office in question, the practical result would be to effectively circumvent the rule
that only the Attorney General may bring quo warranto actions. This is because the
requestor will always be able to address the merits of his claim through the
ostensible "review" of the Attorney General's decision. By analogy, this would be
similar to allowing any citizen the authority to request judicial review every time a
district attorney decides not to prosecute a particular crime. The Court should
therefore deny Workman's petition for writ of mandamus.
Since the Attorney General, as the proper representative of the State, has
declined to bring a quo warranto action, and the petitioner has no interest in the
matter distinct from that of the general public, there is no party with standing to
26
invoke the Court's jurisdiction. Therefore the petition must be dismissed. See
Heller, 120 Nev. at 462, 93 P.3d at 750 (determining standing to seek a writ
petition as affecting the court's original jurisdiction); Doe, 102 Nev. at 525, 728
P.2d at 444 (a justiciable controversy requires a claim of right by a person with a
legally protectable interest in the controversy).
IV.
THE MOTION FOR LEAVE AND PETITION FOR WRIT OF
MANDAMUS SHOULD BE DENIED BECAUSE THE RULE
ANNOUNCED IN LOR TON APPLIES PROSPECTIVELY ONLY
At the time Mr. Hafen ran for and was elected Mayor of Henderson in April,
2013, the legal question whether the office of Mayor is distinct and separate from
the office of Councilmember had not been determined. Only after Mr. Hafen had
been elected did this Court address the issue, in a different case (albeit one
involving a city charter that is, for these purposes, the same as Henderson's city
charter). Thus the critical question is whether the decision in Lorton applies
retroactively to effectively void an election that occurred before the decision was
rendered, and to oust a sitting officeholder who had been otherwise duly elected.
The general rule is that judicial interpretations of law in civil cases should be
given retroactive application. Miller v. Ashurst, 86 Nev. 241, 244, 468 P.2d 357,
359 (1970). However, in certain cases, prospective application is warranted.
Ziglinski v. Farmers Ins, Grp., 93 Nev. 23, 24, 558 P.2d 1147, 1148 (1977).
27
In determining whether a decision should be applied retroactively, or
prospectively only, the correct analysis involves a three-part test:
(1) "the decision to be applied nonretroactively must
establish a new principle of law, either by overruling
clear past precedent on which litigants may have relied,
or by deciding an issue of first impression whose
resolution was not clearly foreshadowed;" (2) the court
must "weigh the merits and demerits in each case by
looking to the prior history of the rule in question, its
purpose and effect, and whether retrospective operation
will further or retard its operation;" and (3) courts
consider whether retroactive application "could produce
substantial inequitable results."
Breithaupt v. USAA Prop. & Cas. Ins. Co., 110 Nev. 31, 35, 867 P.2d 402,
405 (1994) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1970). 3
Thus, as an initial matter, it is the Chevron Oil test, adopted by this Court in
Breithaupt, which is the correct standard in this case. To the extent Workman
relies on cases dealing with the retroactivity of newly enacted statutes or
constitutional provisions, that reliance is misplaced. See Pet. pp. 6-7.
3 The court in Breithaupt recognized that the U.S. Supreme Court had "expressed
dissatisfaction" with the Chevron Oil test, but nevertheless applied it when
reviewing whether a state court decision should be applied retrospectively. Id. at n.
3. Before Breithaupt was decided, Chevron Oil was overruled by Harper v.
Virginia Dep't of Taxation, 509 U.S. 86, 99-100 (1993). As the Court explained in
Harper, even if Chevron Oil was no longer the correct standard for federal cases,
states are still free to apply whatever standard they wish for determining
retrospective or prospective application of their own decisions. Harper, 509 U.S. at
100. Since Breithaupt was decided after Harper, it appears that this Court intends
to continue to use the Chevron Oil standard when analyzing retroactivity of its own
decisions.
28
It should also be noted that the "rule" in question here is not the term limits
provision in general. Cf Pet. p. 7. Rather, the rule in question is the specific rule
of law announced by Lorton: that when the mayor is also a member of the city
council, it may be considered the same office as the office of councilmember for
purposes of term limits.
A. Applying Lorton to unseat Mayor Hafen from office would constitute
a retrospective application of that decision.
Retroactive application occurs when the decision is applied to conduct that
occurred before the rule was announced. See Beavers v. Johnson Controls World
Servs., Inc., 881 P.2d 1376, 1382, n. 7 (N.M. 1994) (defining "modified"
pro spectivity, pure pro spectivity, and retroactivity of rulings).
Workman argues that there is no retroactivity issue in this case, because
applying the rule in Lorton to unseat Mayor Hafen "does not constitute
retrospective application of Article 15, Section 3(2), it simply 'draws upon past
facts.' Pet. at 7,11. 10-13 (quoting Miller v. Burk, 124 Nev. 579, 188 P.3d 1112
(2008)). Specifically, Workman points to the fact that by the time he was elected
in 2013, Mr. Hafen had already served either as Mayor or on the City Council of
Henderson for more than 12 years. However, this argument should be rejected.
First, Workman applies the wrong standard. He cites to Miller v. Burk, 124
Nev. 579, 188 P.3d 1112 (2008) and Public Employees 'Benefits Program v.
LVMPD, 124 Nev. 138, 179 P.3d 542 (2008), neither of which involved
29
retrospective application of a judicial decision. Instead, they both involved
legislation: the term limits amendment to the constitution, and a statutory
amendment.
Here, the correct standard is that applicable to judicial decisions, not
legislative acts. While these tests are similar in some respects, it is the Chevron
Oil factors that are controlling here. Breithaupt, 110 Nev. at 35, 867 P.2d at 405.
But in any event, Burk and PEBP are distinguishable because neither involved a
new rule which applied to purely past conduct.
PEBP involved an amendment to a statute which required local governments
to begin paying health care premium subsidies for retirees on the effective date of
the amendment, even though the retirees retired prior to the amendment's effective
date. PEBP, 124 Nev. at 154, 179 P.3d at 553. The court explained that this was
not a "retroactive" application because it did not require the local government to
pay premium subsidies for periods before the effective date; rather, it was a
prospective requirement to begin paying subsidies for all existing retirees. Id. 124
Nev. at 155, 179 P.3d at 553-54.
Burk involved the question of whether the term limits amendment, which
became effective in December 1996, applied "retroactively" to count in the 12-year
maximum the term to which a person was elected in November 1996, before its
effective date. Burk, 124 Nev. at 590, 188 P.3d at 1119. The court held that the
30
amendment only applied to terms which commenced after its effective date, and
therefore it was not a retrospective application. Id., 124 Nev. at 592-3, 188 P.3d at
1121. In other words, the term limits amendment was given a "pure" prospective
application, since it only started "counting" years served in terms that commenced
after its effective date.
The relevant event in this case is the April 2013 election, not the fact that
Mr. Hafen had served either as Mayor or on the City Council of Henderson for
more than 12 years. Nev. Const. Article 15, 3(2) provides: "No person may be
elected to any state office or local governing body who has served in that office, or
at the expiration of his current term if he is so serving will have served, 12 years or
more, unless the permissible number of terms or duration of service is otherwise
specified in this Constitution." (Emphasis added.)
Notably, the provision does not prohibit a person from serving more than 12
years. In fact, it expressly acknowledges that in some cases, a person will serve
more than 12 years. Instead, it only prohibits a person from being elected to the
office if he or she has served more than 12 years in that office.
In this case, it is not a matter of drawing on past facts by counting the
number of years Mr. Hafen has served to date. Instead, applying the rule in Lorton
to Mr. Hafen would be a truly retroactive application because it would be
tantamount to declaring the 2013 election void, based on a rule that was announced
31
after the election was completed, after Mr. Hafen was declared elected, and after he
took office.
Thus the question is whether, under the Chevron Oil factors, the Lorton
decision applies retroactively to invalidate the 2013 election for Mayor of
Henderson.
1 3 . The rule in Lorton was an issue of first impression and was not
clearly foreshadowed.
The decision in Lorton established a new principle of law by deciding an
issue of first impression whose resolution was not clearly foreshadowed. First, the
language in Lorton itself shows that the court intended the decision to be
prospective-only. In discussing the propriety of writ relief, the court stated that it
would hear the petition because "resolution of this petition will also help define the
parameters of Article 15, Section 3(2), so that future potential candidates and
challengers will be able to understand the provision's effect." 130 Nev. Adv. Op.
8, 322 13 .3d at 1053 (emphasis added).
Immediately after this sentence, the court specifically mentioned the City of
Henderson and other cities that have charters similar to Reno's charter. Id. The
court's repeated reference to future events (i.e., "will help define" and "future
potential candidates and challengers"), as opposed to past or present (e.g.,
"officers" or "mayors" instead of "future" "candidates" and "challengers") shows
that the rule in Lorton was not intended to retroactively oust sitting officeholders.
32
The resolution of the issue was not clearly foreshadowed. In 2008, the
Attorney General's Office wrote an opinion concluding that the mayor of Reno
was a separate office from that of councilmember. 4 The Legislative Council
Bureau issued an opinion coming to the opposite conclusion. 5 Lorton itself was as
5 -2 decision. See Lorton, 130 Nev. Adv. Op. 8,322 P.3d at 1060.
If anything, dicta in Miller v. Burk, 124 Nev. 5 79, 5 99, 188 P.3d 1112, 1125
(2008) tended to indicate that the offices would be considered to be separate. In
Miller v. Burk, the court stated: "Article 15 , Section 3(2) plainly states that if a
person has served, or at the conclusion of his or her current term will have served,
12 years or more in an office or a position on a local governing body, that person
may not be reelected to that office or position." Id. at 5 99 (emphasis added).
In the Lorton case, real party in interest Dwight Dortch argued that this
statement indicated that the court had already decided the issue and that each
"position" on a local governing body was a separate and distinct position. See
Lorton, 130 Nev. Adv. Op. 8, n. 5 . The court rejected that argument, pointing out
that it was merely dicta, and the issue was not directly addressed in Burk. Id.
4
The opinion was not a published, formal opinion. Although issued in 2008, it was
not disclosed until 2012. See http://blogs.rd.com/renomemo/2012/11/20/attorney-
general-term-limited-reno-city-council-members-can-still-run-for-mayor/
s
It appears that the LCB opinion was not published at the time it was written
either. However, it was published by the Reno Gazette Journal in October, 2013.
See http://blogs.rgj.corn/renomemo/2013/10/16/legal-opinion-termed-out-reno-
city-council-members-cannot-be-reno-mayor/
33
Thus the resolution of the issue in Lorton was not clearly foreshadowed at
the time that Mr. Hafen ran for Mayor of Henderson in April, 2013. Lorton
established a new principle of law, satisfying the first criterion of Chevron Oil for
prospective application.
C. The purpose behind the rule in Lorton would be adequately
enforced if it were given prospective-only application.
The second of the Chevron Oil factors requires the court to "weigh the
merits and demerits in each case by looking to the prior history of the rule in
question, its purpose and effect, and whether retrospective operation will further or
retard its operation." Breithaupt, 110 Nev. at 35, 867 P.2d at 405.
The purpose of the rule in Lorton is to effectuate the voters' intent in passing
the term limits amendment to "stop career politicians." Lorton, 130 Nev. Adv. Op.
8; 322 P.3d at 1057. The court analogized its rule to prohibiting reelection to
different seats or different wards on the same local governing body. Id. at 1058.
The Attorney General is informed and believes, based on information from
the League of Cities, that Mr. Hafen is the only person currently holding office as
mayor who previously served twelve or more years as councilmember (or vice-
versa). Lorton settled the legal question of when mayor and councilmember are
considered the same office for purposes of term limits. That rule will be
adequately enforced even if it is given prospective-only application, because it will
prevent Mr. Hafen from being elected again in the future, and there are no others
34
who are similarly situated.
The court in Lorton applied its decision to the parties before it in that case,
effectively barring the real parties in interest from being placed on the ballot for
the office of Mayor of Reno. This is an example of modified prospectivity (see
Beavers, 881 P.2d at 1382, n. 7) and was appropriate because the election had not
yet occurred, and there was still time to determine who would be eligible to be on
the ballot.
Of course, prospective application of Lorton would mean that Mr. Hafen
would not be removed from office. However, the voters of Henderson have
already determined that Mr. Hafen should be re-elected to office, and Mr. Hafen's
situation is apparently unique across the State. Furthermore, Mr. Hafen is in a
different position than the real parties in interest in Lorton because he has already
been elected to office, whereas the election had not yet occurred in Lorton. For
these reasons, prospective application does not substantially frustrate the purpose
of the rule announced in Lorton. Instead, the interests behind the rule are
adequately protected by prospective application.
D. Retroactive enforcement of Lorton would cause inequitable results.
Finally, the Court must determine whether retroactive enforcement of its
decision in Lorton would produce substantial inequitable results. Breithaupt, 110
Nev. at 35, 867 P.2d at 405. In this case, no one challenged Mr. Hafen's eligibility
35
at the time he ran for office. He won in the primary election with nearly 55% of
the votes. Removing Mr. Hafen from office now would deprive those voters who
chose him of their preferred representative.
Of course, term limits in general always have the effect of limiting voters'
choices. The rationale is that the detriment caused by limiting choices in any
particular race is outweighed by the benefits of reducing the power of incumbency,
bringing new candidates into politics, and so forth. The people themselves enacted
the term limits provisions. Arguably, if Mr. Hafen is not removed from office,
then the people's will on term limits is defeated.
But in this case, the balance of the equities requires prospective application.
It is evident from the people's vote that they approved of Mr. Hafen continuing to
serve, 6 and no one brought a challenge to his candidacy, even though all the
necessary facts were apparent at the time he filed for office.
6
Workman may argue in reply that Mr. Hafen has no "mandate" from the voters
because he was elected in a primary election where turnout was only 12.35%.
However, he received over half the votes in that election, and therefore was
deemed elected pursuant to NRS 293C.175(4). Furthermore, turnout in
Henderson's primary elections has historically (1995 through 2013) ranged from
approximately 9% to a high of 19.3%. PA at 36 -43; see also
http://www.cityofhenderson.com/city clerk/municipal elections/Historical Info/el
ections historical main jmge.php (last visited 06 /27/2014). Thus the turnout at the
election in which Mr. Hafen was elected was typical. Even if one disagrees with
the policy that a candidate obtaining more than half the votes in the primary is
declared elected, that is the policy the Legislature chose and the fact remains that
removing Mr. Hafen from office now would frustrate the will of a majority of the
voters who took the time and effort to participate in the election.
36
The U.S. Supreme Court and other courts have recognized that applying a
judicial decision retrospectively to invalidate a prior election is a remedy of
substantial consequence. For example, in Allen v. State Bd. of Elections, 393 U.S.
544, 572, 89 S. Ct. 817, 835 (1969) the Court found that certain states had violated
the Voting Rights Act, but nevertheless declined to apply its decision
retrospectively to set aside elections held in violation of the Act. But see Perkins v.
Matthews, 400 U.S. 379, 397, 91 S. Ct. 431, 441 (1971) (remanding to the district
court to determine proper remedy, including the potential for invalidating prior
elections, based in part on the fact that Allen had since clarified the states'
obligations).
Similarly, in Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S. Ct. 1897,
1901 (1969), the Court invalidated a statute which permitted only property owners
to vote in certain elections on the issuance of bonds. However, it applied its
holding prospectively to situations in which elections had not been held, state law
still provided time for challenging the election results, or a suit had been filed
within such time frames, but was not yet final. Id.
The Supreme Court of Rhode Island also recognized that public policy
favors the finality of elections. State ex rel. Webb v. Cianci, 591 A.2d 1193, 1200-
01 (R.I. 1991). It therefore denied a petition for writ of certiorari to challenge the
eligibility of a candidate declared mayor-elect of Providence, Rhode Island, where
37
the petitioner failed to file a timely election challenge. Id. at 1201. The court
explained:
The public policy of this state requires that challenges to
qualification of candidates for public office be resolved
as quickly as possible in order that an election may take
place upon the dates previously ordained by the General
Assembly. The state has a compelling interest in the
validity and finality of the election of candidates to all
public offices, but particularly to the office of chief
executive. Only prompt challenges presented in
accordance with statutory and case law may be
considered.
Id, (citations and quotations omitted).
The Alaska Supreme Court's decision in Div. of Elections of State v.
Johnstone, 669 P.2d 537, 545-46 (Alaska 1983) is also illustrative. That case
involved a dispute over whether a judge appointed to fill a vacancy was required to
run for retention in 1984 or 1982. /d. at 538-39. The Alaska Supreme Court held
that the judge was required to run for retention in 1982. Id. at 540. However,
because the judge believed he had to run in 1984, he missed the filing deadline for
the 1982 election. Id. Therefore the court was confronted with whether to apply
its decision prospectively-only, or retrospectively, where the latter would
effectively remove the judge from office. Id. at 543.
As to the third Chevron Oil factor, the Alaska Supreme Court stated: "A
holding resulting in the ouster of Judge Johnstone from office would work an
extreme hardship. Such a result would have been significantly out of line with any
38
'fault' on the part of Johnstone in failing correctly to predict our ruling." Id. at
545. But beyond the judge's own potential reliance on the opinions he received,
the court recognized other equitable considerations, specifically those of the voters.
Id. at 545-46. It therefore held that giving the voters their opportunity to choose to
retain the judge or not militated in favor of permitting the judge to appear on the
1982 ballot, despite his failure to meet the filing deadline. Id. at 546.
Johnstone is arguably distinguishable from this case because here, the voters
themselves have enacted the term limits amendment, which if applied would have
prohibited Mr. Hafen from appearing on the ballot. Thus whether Lorton is
applied prospectively or retrospectively will necessarily frustrate the will of some
voters. If it is applied retrospectively, the voters who chose Mr. Hafen to be their
mayor will have their votes invalidated, and their chosen representative removed
from office. Conversely, if Lorton is applied prospectively only, the voters who
supported the term limits provision (and who anticipated and intended the result in
Lorton) will have that intent frustrated.
The term limits amendment was a statewide initiative which enjoyed broad
support. While the statewide voters generally have an interest in seeing term limits
enforced, the voters of Henderson have a much more palpable and direct interest in
whether Mr. Hafen remains in office. Those voters recently re-elected Mr. Hafen,
with the knowledge that he had already served more than 12 years on either the
39
City Council or as Mayor. It would be inequitable to apply the rule retroactively to
remove a person who was elected before Lorton was decided, thereby invalidating
the votes of the citizens of Henderson who, despite knowledge of Mr. Hafen's
length of service, voted to elect him as their Mayor.
CONCLUSION
Petitioner Rick Workman's motion for leave to file a petition for writ of quo
warranto should be denied because he lacks standing, since he has asserted no facts
which, if true, would show that he has any direct or personal stake in the outcome
of the matter sufficient to create a justiciable controversy. Like the petitioner in
Teuton, Workman has no standing to seek a writ of quo warranto.
Workman's alternative request for a writ of mandamus should also be denied
because he has no interest in seeing Mr. Hafen ousted from office which is distinct
from the public's interest. In such matters, the Attorney General's discretion
whether to institute quo warranto is complete and cannot be challenged by
mandamus.
Nor will mandamus lie against the Secretary of State. As Chief Election
Officer, the Secretary has discretion in enforcement of the election laws. Petitioner
has not shown any ministerial legal duty requiring the Secretary to act in this case,
nor has Petitioner demonstrated that the Secretary has abused his discretion.
IIII
40
Finally, Workman's challenge comes too late. The challenge is barred by
laches because all of the facts necessary to bring the challenge were well known at
the time of the election, a special expedited process exists for testing candidates'
qualifications, yet Workman failed to file the challenge timely. He should not now
be permitted to try to invalidate an election that occurred more than a year ago.
DATED this 30
th
day of June, 2014.
CATHERINE CORTEZ MASTO
Attorney General
By: /s/ Kevin Benson
KEVIN BENSON
Senior Deputy Attorney General
Bar No. 9970
Attorney General's Office
100 North Carson Street
Carson City, Nevada 89701-4717
(775) 684-1114
Attorneys for Respondents
CATHERINE CORTEZ MASTO,
Nevada Attorney General, and
ROSS MILLER, Secretary of State
41
CERTIFICATE OF SERVICE
I declare that I am an employee of the State of Nevada and on this 30 th day
of June, 2014, I served a copy of the foregoing RESPONDENTS' RESPONSE TO
MOTION FOR LEAVE AND ALTERNATIVELY, PETITION FOR WRIT OF
MANDAMUS, by Supreme Court of Nevada CM/ECF Electronic filing to:
Stephanie Rice, Esq.
Hardy Law Group
96 & 98 Winter Street
Reno, Nevada 89503
Todd Bice, Esq.
Pisanelli Bice
3883 Howard Hughes Parkway
Suite 800
Las Vegas, Nevada 89169
/s/ Linda Deming
Employee of the State of Nevada
Office of the Attorney General
42