Hendo Filing

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Electronically Filed Jul 18 2014 03:25 p.m. Tracie K. Lindeman Clerk of Supreme Court Docket 65716 Document 2014-23440

description

A filing over Mayor Andy Hafen's term limits.

Transcript of Hendo Filing

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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

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    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

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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 them. Thus, no matter how2 Workman describes himself in his brief, he is not entitled to the office of Mayor of3 Henderson.4 econd, the City must be able to rely on the state laws, constitutional5 provisions, and the provisions set forth in the Henderson City Charter, that govern6 candidates, elections, and the removal of elected officials. There are provisions in7 both state law and under the Henderson City Charter (enacted by the legislature8 pursuant to NRS 266) that allow candidates to challenge the qualifications of9 candidates pre-election. There are also pre-election writs available to keep

    10 candidates off the ballot. There are statutes governing candidate contests of11 election results. Contrary to Workman s contention that he lacked the resources to12 do so, bringing pre-election challenges can be cost and resource free to the13 challenger, so long as they are not frivolous. There are constitutional provisions14 and statutes authorizing quo warrant writs. There are constitutional provisions and15 statutes providing for recall of public officers. However, there is no provision16 granting an individual the right to file a post-election writ (other than quo warranto)17 with this Court more than a year after the deadline for contesting an election has18 passed.9 ranting Workman s writ petition at this point would set a dangerous

    20 precedent that would all but eviscerate the substantial law governing challenges to21 candidate qualifications, the procedures for contesting elections, and the processes22 for removing public officers. Allowing former competing candidates to bypass23 those procedures would subject the City to potentially endless challenges of its24 elected officials by way of writ petition.25 inally, while there is no question that this Court has jurisdiction to26 determine a quo warranto action, Workman s request for writ relief asks this Court27 to exercise the power vested in the City s legislative bodya division of the state28 legislative body to determine the qualifications and removal of its members. This

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    Candidate Percent of VoteHafen, Arthur A. Andy 54.84Hamilton, Eddie In Liberty 2.22Robinson, K yler 1.06Saku ra, Jerry 1.37Scala, Joe 2.62Simmons, Clayton .70Workman, Rick 37.18

    See Certified Copy of Election Results from the 2013 Mu nicipal Primary Election,attached hereto as Ex. B.

    Prior to the election, no candidate filed a written challenge, of any kind, toany of the candidates. See Ex B at il 8. Specifically, no candidate filed a writtenchallenge with the City Clerk concerning Mayor Hafen s purported lack ofqualification to run for mayor as a result of an alleged violation of Nevada s termlimits as set forth in Article 15, Se ction 3 of the Co nstitution of the State of Nevada.See id at 118. No candidate brought any other pre-election contest in district courtand no candidate sought a writ to keep Mayor Hafen off the ballot. Workman,however, did request an ethics opinion from the City Attorney concerning whetherhe could maintain his employment with the City if he were elected Mayor, which

    1 request is inconsistent with this Court s prior recognition and enforcement of the2 separation of powers among the co-equal branches of Nevada s government.3 However in the event this Court creates a vacancy by issuing a writ ordering Mayor4 Hafen s removal from office, this Court should allow the vacancy to be filled as set5 forth in the Henderson City Charter.6 V FACTS7 he facts of this case are well established in the briefs filed by the parties.8 However, the only facts essential to the City s brief are as follows. A primary9 election for the office of the Mayor of Henderson was held On April 2, 2013. The

    10 results of that election are as follows:

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    101 112131 4151 61 71 81 92 0212 22 32 42 52 62 72 8

    1 would violate Sec. 1.080 of the Henderson City Charter. See Correspondence fromHenderson City Attorney responding to Workman's inquiry attached hereto as ExC Workman made no inquiry concerning any ethical violation that might haveresulted from Hafen's candidacy.

    Following the election on April 2, 2013, until the filing of Workman'sRequest for Leave to File a W rit of Quo W arranto or A lternatively, Petition for W ritof Mandamus or Other Extraordinary Relief on May 21, 2014, no candidate filed anelection contest in d istrict court or attempted to initiate a reca ll.

    V ARGUMENTA. Workman is Not a Competing Office Holder.Workman has styled himself as a competing office holder. See Pet. Brief

    at p. 4, lns. 12-13; p. 9, ln. 24. The term competing office holder is not used inthe statutory provision governing quo warranto actions and does not appear to havebeen used in any opinion by this Court concerning a quo warrant action. See NRS3 5 et seq. In fact, an exhaustive search of state and federal case law conducted inpreparing this brief revealed no opinions that used the term competing officeholder.

    Workman appears to use the term competing office holder in an effort tosatisfy the well settled limitation of quo warranto actions to persons claiming to beentitled to a public office. See NRS 35; see also Lueck v. Teuton 12 5 Nev. 674 ,4 ec. 1.080(1)(a) of the Henderson City Charter states:

    1 he Mayor and Council Members shall not:(a) Hold any other elective office with the State of Nevada or any

    of its political subdivisions or any other employment with theCity, except as provided by law, as a member of a board orcommission which is ancillary to the office which he holds oras a m ember of the board o f trustees of a c ounty school district.

    5 Workman made this opinion public through numerous press articles. See forexample http:/ /www.reviewjoumal.cominews/elections/former-henderson-mayoral-candidate-protests-bullying-tactics.

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    1 679, 219 P.3d 895, 898 (2009) (noting that NRS 35 does not permit a person with2 only a general interest in quo wanranto relief to pursue such a remedy, absent3 participation from the attorney general and leave of the court).4 espite Workman's attempt to invent a new recognizable term that would5 supply an interest sufficient for quo warranto relief, Workman is not an office6 holder, nor is he entitled to any office. Under the laws of Nevada and pursuant to7 the Henderson City Charter, there are many ways that a person may be entitled to8 hold the office of Mayorhe or she can:

    1. Be the only declared candidate for the office after the filing deadline haspassed see NRS 2 93C.18 0(1));

    2. Receive more than a majority of the votes in a primary election see NRS293C.175) ;

    3. Win a general election see id. ;4. Upon contest, be found by a district court to have received the greatest

    number of legal votes 6 see NRS 293 .417) ;5. Receive the m ost votes in a recall election see Nev. Con st. art 2, 9 );6. Be appointed to a vacancy in the office by a majority of the City Council

    see Henderson City Charter 1 .07 0 ); or6 RS 293.410, which sets forth grounds for election contests refers to illegalvotes as opposed to legal votes. Illegal votes are votes cast by illegal voters, notvotes cast for an unqualified or otherwise ineligible candidate. In re Moore 6 5Nev. 393, 397, 197 P.2d 858, 860 (1948). Nevada law provides that votes may becast and counted for unqualified candidates, including even a deceased candidate.See NRS 293C.370. Further, ineligibility for office at the time of election and thecasting of illegal votes are two separate grounds for post-election challenge, afterthe votes have been initially counted. Compare NRS 293.410(2)(b) with NRS293.410(2)(c). Thus, votes cast for an unqualified or ineligible candidates are legalvotes for the purpose of determining which candidate received the greatest numberof legal votes. Ingersoll v. Lam b, 75 Nev. 1, 4, 333 P.2d 982, 984 (1959) ( [V]otescast for a deceased, disqualified, or ineligible person are not to be treated as void orthrown away, but are to be counted in determining the result of the election asregards the other candidates. ).

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    . Win a special election held to fill a vacancy in the office see id.).2 here is no provision under Nevada law that entitles a party who received the3 second most votes cast in a primary (without later winning a general election) to the4 office of Mayor. The fact that Workman finished with 37.18% of the votes cast5 does not give him any greater legal claim to the office of Mayor than Eddie In6 Liberty Hamilton, Kyler Robinson, Jerry Sakura, Joe Scala, or Clayton Simmons,7 who all also finished with less than a majority of the vote in the primary election8 held on April 2, 2013, and who all also fail to satisfy any of the other legal9 provisions that might entitle them to the office of Mayor of Henderson. See Ex. A.

    10 Thus, Workman's claim that he is a competing office holder is meritless. 7he Respondents and the Mayor have sufficiently set out the American

    12 Rule (under which an election runner-up has no claim to office) in their briefs in13 reference to Workman's standing. See Resp's. Brief at pp.8-10; Real Party in14 Interest's Brief at pp. 8-11. However, the holding in Ingersoll v. Lamb 75 Nev. 115 4, 333 P.2d 982, 984 (1959) explaining the American Rule, is important when16 considering any request by Workman that this Court install him as the Mayor of17 Henderson. A party cannot by mandamus obtain an office when he has finished in18 second placenot even when he receives 45% of the vote and his opponent is19 deceased. Ingersoll 75 Nev. at 6, 333 P.2d at 984 8 . If Ingersoll could not obtain20 his desired office by mandamus, then Workman should not be able to do so here by21 obtaining only 37.18% of the vote in a seven person primary.2 22 32 42 52 62 72 8

    7 orkman's claim, even if it were true, would result in a violation of Sec.1.080 of the H enderson City Charter.8 ngersoll received 1,161 votes, his deceased opponent, Lester V. Smithreceived 1 489.8

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    B . orkman s Petition for Writ Relief Seeks to Eviscerate Nevada sRobust B ody of Law Governing Elections and W ould Disrupt theEfficient Governance of the City.34 n Nevada, candidates and citizens have ample means to challenge the5 qualifications of candidates, contest election results, unseat officials who have6 usurped an office from another, and recall them from office. Candidates and/or7 others with standing, as appropriate may:8 . Submit written challenges to a candidate s qualifications prior to the9 lection see NRS 293 C.186);

    10 . Seek a pre-election writ to prohibit a candidate from appearing on theallot see Child v. Lomax, 124 Nev. 600, 606, 188 P.3d 1103, 1107

    12 2008); Lorton v. Jones, 322 P.3d 1051, 1054, 130 Nev. Adv. Rep. 813 Nev. 2014);14 . File an election contest in district court see NRS 293.410 setting forth15 ultiple grounds for challenging the results of an election including16 ligibility of elected official);17 . Seek to, and if granted leave, file a quo warrant action see NRS 35;18 ueck, 125 Nev. at 67 9, 219 P.3 d at 8 98 ); and/or19 . Initiate a recall see Nev. C onst. Art. 2, 9; see also NRS 30 6 et seq.).20 ontrary to Workman s contention, many of these remedies are not resource21 prohibitive. See Pet. Brief at p. 16, Ins. 17-20. For instance, as long as a pre-22 election challenge to a candidate s qualifications is not frivolous, there is no cost to23 the challenger and there is limited use of the challenger s resources. See NRS24 293C.186. Under the provision that governs challenges to the qualifications of25 candidates for city office, all a challenger needs to do is prepare a written challenge26 to the qualifications of a candidate and file it with the City Clerk. See NRS27 293C.186(4). The City Attorney then reviews the challenge, and if he determines28 there is probable cause to support the challenge, brings an action to determine it in

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    1 an appropriate court. See id. The challenger is not a party to the actionthe City2 Attorney does all the work, thus a pre-election challenger spends limited funds and3 resources to challenge the qualifications of a candidate pre-election. See id. As4 such, a challenger is only exposed to costs if a court finds that the challenge was5 frivolous. See NRS 293C.186 6).6 imilarly, any citizen may initiate a recall with limited expenditure of funds.7 There are no filing costs associated with filing a petition for recall. See NRS 306 et8 seq. In fact, the statutory provision governing recall provides that a person who9 brings or signs a recall petition is immune from civil liability, thus there is zero risk

    10 of incurring legal fees or associated court costs. NRS 306.015(6).his Court should not cure Workman s failure to exhaust, or even attempt,

    12 any of the many available pre or post-election remedies (other than quo warranto)13 with mandamus relief. This Court has made clear that quo warrant is the exclusive14 remedy for challenging a person s right to hold office. Heller v. Legislature of Nev.15 120 Nev. 456, 464, 93 P.3d 746, 751(2004) (emphasis added). Further, this Court16 has held that mandamus is ill-suited for post-election challenges to a candidate s17 right to hold office. Id.; see also Child 124 Nev. at 606, 188 P.3d at 110718 (considering pre-election request for mandamus to keep candidate off the ballot);19 Lorton 322 P.3d at 1054 (same). In Heller this Court stressed the importance of quo20 warrant as the exclusive remedy for challenging a seated public official:21 uo warrant is the Gibraltar of stability in government tenure. Once22 person is duly elected or duly appointed to public office, thecontinuity of his services may not be interrupted and the uniform23 orking of the governmental machinery disorganized or disturbed by24 ny proceeding less than a formal challenge to the office by thataction which is now venerable with age, reinforced by countless25 recedent, and proved to be protective of all parties involved in a26 iven controversy, namely, quo warrant.27 Heller 120 Nev. at 464, 93 P.3d at 751 (quoting In re Board of School Directors of28 Carroll Twp. 407 Pa. 156, 180 A.2d 16, 17 Pa. 1962)).

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    orton is not the panacea Workman hopes it to be. Lorton does nothing to2 alter the well-established framework this Court has recognized concerning3 candidate challenges, election contests, and the other remedies for the removal of4 elected officials. Lorton was a pre-election writ to determine the qualification of5 certain candidates to run for office. Lorton 322 P.3d at 1053. The Court made6 clear that Lorton applied to pre-election challenges when it limited the opinion to7 helping future potential candidates and challengers understand the effect of8 term limits. Id. Had this Court intended Lorton to apply beyond the traditional pre9 election writ and statutory post-election contest context, it could have stated so, but

    10 it did not. Id.rior to Lorton this Court similarly applied the term limits provision in the

    12 pre-election context. See Child 124 Nev. at 605-06, 188 P.3d at 1107. This Court13 emphasized its role in doing so as important because it would avoid impairing voter14 input. Id. Further, this Court specifically acknowledged the difference in available15 pre-election challenge and post-election contest remedies. Id. In detailing the16 post-election remedies, this Court made no mention of writ relief. See id. at n. 15.17 Lorton makes clear that Mayor Hafen may not run again for the office of Mayor,18 but it does nothing to advance the idea that he should be removed from office now19 because of his lack of qualification for future office. Lorton, 322 P.3d at 1053.20 evada law provides a way for its people to police candidates and elected21 officials at every stage of the political and governing processesfrom candidacy22 through the end of the candidate's term in office. The City, its citizens, and for the23 sake of effective government, its public officers, must be able to rely on these24 provisions as the exclusive remedies for challenging candidates, contesting25 elections, and unseating elected officials.26 he failure to limit challenges to the methods currently set forth under27 Nevada law would wreak havoc on the operation of government, exposing the City,28 its citizens, and its public officials to the constant threat of vacancies in officea

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    1 significant disruption to the administration of public business. Vacancies and other2 disruptions of government are not trivial: the law abhors vacancies in public3 office for any period of time. See State v. Triplett 134 Ohio St. 480, 17 N.E.2d4 729, 731 (Ohio 1938); State v. Lutz 226 Ala. 497, 147 So. 429, 432 (Ala. 1933);5 Johnson v. Collins 11 Ariz. App. 327, 464 P.2d 647, 651 (Ariz. Ct. App. 1970);6 State Ex ReL Warder v. Gainer 153 W. Va. 35, 167 S.E.2d 290, 296 (W. Va.7 1969); Territory by Attorney Gen. v. Morita 41 Haw. 1, 25 (Haw. 1955)8 ( Vacancies in public office are contrary to the proper and efficient administration9 of business. ); Ex. Rel. Penrose v. Greathouse 48 Nev. 419, 422, 233 P 527, 528

    10 (1925) (recognizing Nevada's legislative policy to fill the vacancy for the office ofdistrict judge by election as soon as practicable after the vacancy occurs ); State v

    1 2 Wells 8 Nev. 105, 109 (1872) (noting that a district attorney appointed to fill a13 vacancy properly served until the qualification of a successor . . . because the14 presence of such an officer is necessary to the proper conduct of public business ).15 his Court should not grant Workman relief that will usher in endless16 challenges to public officials to the detriment of the operation of the government of17 the City. As a result, if this Court denies Workman's request for leave to file an18 action quo warranto, it should not resort to mandamus to provide him relief.19202122 orkman asks for the unprecedentedthe removal of a public official who23 received more than a majority of the votes cast in a primary election and the24 appointment of a candidate who received significantly less than the majority of the25 votes in that same primary election. It is a fundamental principle of popular26 government that the legally expressed will of the majority must prevail in27 elections. Banks v. Zippert 470 So. 2d 1147, 1149 (Ala. 1985). Nevada's judicial28 branch has significant responsibility in ensuring the integrity of elections by

    C . orkman s Petition for M andamus Relief Invites this C ourt to Bend.,if Not Break, the Boundaries Am ong the C o-Equal Branches ofGovernment.

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    1 presiding over challenges to candidate qualifications before they are placed on the2 ballot. See NRS 293C .186; NRS 293.182; Child 124 Nev. at 606, 188 P.3d at 11073 (considering pre-election request for mandamus to keep candidate off the ballot);4 Lorton 322 P.3d at 1054. The judicial branch is also the arbiter of statutory post-5 election contests for all public officials, which specifically exclude the members of6 the State Legislature. NRS 293.407; Hdler 120 N ev. at 466, 93 P.3d at 753.7 owever, this Court has recognized that its powers to remove public officials8 from office are limited by the separation of powers doctrine and the express9 provisions of the Constitution of the State of Nevada, namely quo warranto. Heller

    10 120 Nev. at 464,93 P.3d at 751.rticle 3, Section 1 1) of the Constitution of the State of Nevada states:

    12 he powers of the Government of the State of Nevada shall be divided13 nto three separate departments the Legislative the Executive and theJudicial; and no persons charged with the exercise of powers properly14 elonging to one of these departments shall exercise any functions,15 ppertaining to either of the others, except in the cases expresslydirected or perm itted in this constitution.1617 Emphasizing the importance of that constitutional provision, this Court stated in18 Heller:

    As we have previously recognized, separation of powers is probablythe most important single principle of goverment declaring andguaranteeing the liberties of the people. It works by preventing theaccumulation of pow er in any one branch of government.

    120 Nev. at 466, 93 P. 3d at 752 citing Galloway v. Truesdell, 83 Nev. 13, 18, 422P.2d 237, 241 (1967) and 1 Ronald D. Rotunda & John E. Nowak, Treatise onConstitutional Law 3.12, at 394 3d ed. 1999)).

    This Court rightly rejected Heller's request for an order forbidding executivebranch employees from serving in the legislature. Heller 120 Nev. at 466 93 P.3dat 752. The Court not only relied on Article 4, Section 6 of the Constitution of theState of Nevada, which expressly grants the legislature the right to judge the

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    1 qualification, elections and returns of its own members, but the Court also2 recognized the principal of legislative self-protection.3 n City of Sparks v. Sparks Mun. Court this Court reiterated that the judiciary4 is a coequal branch of government, with the inherent powers to protect itself and5 administer its affairs. 302 P.3d 1118, 1128, 129 Nev. Adv. Rep. 38 (Nev. 2013).6 This Court also noted that [e]ach governmental branch also has certain inherent7 powers, by virtue of its sheer existence and as a coequal branch of government, to8 carry out its basic functions. Id. The Court further established that municipal9 courts, as coequal branches of their local governments, are protected by the

    10 constitutional separation of powers doctrine and possess inherent judicial powers to11 the same extent as the other courts of this state. Id.1 2 t follows then, that municipal legislative and executive bodies also possess13 inherent powers to the same extent as their state legislative and executive branch14 counterparts. Id While there is no express constitutional provision providing that15 members of municipal legislative bodies may judge the qualification of their own1 61 7 9 n explaining legislative self- protection in Heller this Court quoted theMinnesota Supreme Court as follows:1 81 9 t is obvious, that a power must be lodged somewhere to judge of theelections, returns, and qualifications of the members . . . . The only2 0 ossible question on such a subject is, as to the body, in which such a2 1 ower shall be lodged. If lodged in any other than the legislative bodyitself, its independence, its purity . . . may be destroyed . . . . No other2 2 ody but itself can have the same motives to preserve and perpetuate2 3 hese attributes; no other body can be so perpetually watchful to guardits own rights and privileges from infringement, to purify and2 4 indicate its own character, and to preserve the rights, and sustain the2 5 ree choice of its ow n constituents. Acco rdingly the power has alway sbeen lodged in the legislative body by the uniform practice of England2 6 nd America.2 7 Heller 120 Nev. at 469, 93 P.3d at 754 (quoting Scheibel v. Pavlak 282 N.W.2d28 843, 847 (Minn. 1979)).

    1 4

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    1 members, the power to do so is an inherent power of each body. See Lueck 1252 Nev. at 676, 219 P.3d at 896 (holding that despite lack of standing by movant, the3 Court could consider merits of decision to remove judge from office under its4 supervisory responsibilities over the judicial branch). 1 The inherent power each5 branch of government has to administer its responsibilities is subject to express6 constitutional limitations and laws that do not violate those express provisions. See7 Lueck 125 Nev. at 677-78, 219 P.3d at 897 (explaining the constitutional basis for8 the Court s authority over the judicial branch).9 hus, when it comes to the legislative branch, the Court may act in a limited

    10 sphere with respect to the qualifications, elections, and returns of legislators11 including when the legislature has: (1) devised a role for the courts by statute, such12 as election contests, (2) infringed upon personal constitutional rights, or (3)13 imposed extra-constitutional qualifications. Heller 120 Nev. at 471, 93 P.3d at14 756.15 his Court has confirmed that the Mayor and the City Council are part of a16 separate, legislative branch and specifically that the Mayor is a member of the17 City s legislative body. See generally City of Sparks 302 P.3d at 1130 (discussing18 the powers of the various branches of municipal governments); see also Lorton 3 2 219 P.3d at 1058-59 (holding that the office of mayor under the Reno City Charter20 [similar to the Henderson City Charter] is a member of the local governing body21 and a member of the legislative, not executive branch). Thus, in the absence of a22 devised role for this Court by statute, the assertion of a personal constitutional right,23 or the imposition of an extra-constitutional qualification, this Court has no role to24 determine Mayor Hafen s qualification for office. Heller 120 Nev. at 471, 93 P.3d2 52 62 72 8

    t orkman cites Lueck for the principle that the Court may grant discretionaryrelief without limitation when public policy is at issue. See Pet. Brief at p. 11.Wrong. The Court s reason for granting relief in Lueck stemmed from itssupervisory authority over the judicial branch, not a general authority to removeelected officials in the name of public policy

    15

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    I at 756. That role is left to the members of the Henderson City Council. ee2 Henderson City Charter Sec. 2.060(1) and (2) (providing that the City Council may3 judge the qualifications and elections of its own members and adopt rules for the4 government of its members).

    s set forth above in detail, this Court's post-election role is limited to6 determining timely election contests and quo warranto actions. At this point, any7 action outside of quo wan anto is left to the voters of Henderson through recall, or8 the members of the City Council. ee Henderson City Charter Secs. 2.030 and9 2.060.

    10 owever, in the event this Court does act to order Mayor Hafen's removal11 from office, in no event should this Court appoint Workman as Mayor. Again,12 under the long standing principles of separation of powers, this Court should leave13 the filling of any vacancy to the Henderson City Council. ee Henderson City14 Charter 2.030 (providing that a vacancy may be filled by a majority vote of the15 remaining council, or special election called by resolution); see also Lueck 12516 Nev. at 686, 219 P.3d at 902 (ordering Governor to declare office vacant and17 providing that office would be filled by applicable appointment process .18 I CONCLUSION19 orkman is not a competing office holder or otherwise entitled to the20 office of Mayor of Henderson. While he likely cannot maintain a quo wan anto21 action, the City's interest is that this Court not appoint an individual as Mayor who22 lost the primary election and who has never met any test for occupying the office.23 Further, Workman's claim that he is a competing office holder for the office of24 Mayor of Henderson, while maintaining his employment with the City, in violation25 of Section 1.080 of the Henderson City Charter, calls the veracity of Workman's26 assertion into question.27 orkman failed to exhaust or attempt any of the numerous statutory and28 constitutional methods for challenging Mayor Hafen's qualifications for office. He

    16

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    1 failed to present this Court with a valid reason as to why he did not attempt one of2 those challenges. In order to ensure the efficient operation of government, the City,3 its residents, and its public officials must be able to rely on the constitutional and4 other state law provisions for challenging candidate qualifications and the fitness of5 office holders.6 orkman's request for a writ of mandamus to remove the Mayor more than a7 year after the 2013 election invites this Court to impinge upon the inherent power of8 the legislative branch and tests the doctrine of the separation of powers. This Court9 should decline that invitation.

    10 or the reasons set forth in this brief and in the briefs filed by Respondents11 and Mayor Hafen this Court should deny Workman s request for leave to file a writ12 of quo warrant and deny his request for mandamus or other extraordinary relief.13 In the event this Court is inclined to order Mayor Hafen s removal, this Court14 should not appoint Workman to the office of Mayorfor many reasons, including15 separation of powers but chiefly because Workman is not entitled to be mayor.16 Any vacancy created by this Court should be filled by the City Council as set forth17 in the Henderson City Charter.18 ATED this /7 4 4 d y of July 20 1 4.19202122232425262728

    CITY OF HENDERSONJOSH M. REID, City Attorney

    11 6CizJOSH M. REIDCity AttorneyBRANDON P. KEMBLEAssistant City Attorney240 Water Street MSC 1 44Henderson Nevada 8 9 01 5Attorneys for Amicus CuriaeCITY OF HENDERSON

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    RAP 28.2 CERTIFICATE OF COMPLIANCE2 hereby certify that this brief complies with the formatting requirements of3 NRAP 32 a) 4), the typeface requirements of NRAP 32 a) 5) and the type style4 requirements of NRAP 32 a) 6) because this brief has been prepared in a5 proportionally spaced typeface using Microsoft Word in Times New Roman in font6 size 14.7 further certify that this brief complies with the page or type-volume8 limitations of NRAP 32 a) 7) because, it is proportionately spaced, has a typeface9 of 14 points or more, and contains approximately 5006 words

    10 inally, I hereby certify that I have read this amicus brief, and to the best of11 my knowledge, information, and belief, it is not frivolous or interposed for any12 improper purpose. I further certify that this brief complies with all applicable13 Nevada Rules of Appellate Procedure, in particular NRAP 28 e) 1), which requires14 every assertion in the brief regarding matters in the record to be supported by a15 reference to the page and volume number, if any, of the transcript or appendix16 where the matter relied on is to be found. I understand that I may be subject to17 sanctions in the event that the accompanying brief is not in conformity with the18 requirements of the Nevada Rules of Appellate Procedure.19 ATED this ay of July 2014.202122 RANDON P. KEMBLE232425262728

    18

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    CERTIFIC TE OF SERVICEI HEREBY CERTIFY that I am an employee of the CITY OF

    HENDERSON and that on this 17th day of July 2014 I electronically filed andserved by electronic mail and United States Mail a true and correct copy of theabove and foregoing BRIEF OF AMICUS CURIAE CITY OF HENDERSON INSUPPORT OF RESPONDENTS AND REAL PARTY IN INTEREST properlyaddressed to the following:Stephanie Rice, Esq.Hardy Law Group96 98 W inter StreetReno, NV 89503ttorney for PetitionerThe Ho norable Catherine Cortez MastoAttorney General of the State of Nevada100 N . Carson StreetCarson City, NV 89701RespondentThe Honorable Ross MillerNevada Secretary of State101 N orth Carson Street, Suite 3Carson City NV 89701-3714RespondentTodd L . Bice, Esq.Jordan T. Sm ith, Esq.3883 Howard Hughes Parkway, Suite 800Las Vegas, Nevada 89169ttorneys for Real Party in Interest

    23456789

    10

    123

    141516171819202122232425262728

    n emp loyee of City of the Henderson

    19

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    ECL R TION OF S BRIN MERC D NTE2 I. My name is Sabrina Mercadante, I am over the age of 18, and I am competent to3 estify concerning the matters set forth in this declaration.4 2. I make this declaration in support of the Brief of Amicus Curiae City of5 enderson In Suppo rt of Respondents and R eal Party in Interest.6 3. I am the City Clerk for the City of Henderson, and I have been in that position7 ince September 7 2010.8 4. I am familiar with the policies and procedures relating to elections at the City of9 enderson.

    10 5. I am responsible for administering ballot process and maintaining electionecords pursuant to NRS 29 3C.

    12 6. I am responsible for maintaining ballots, lists and records pursuant to NRS 293C.13 7. I am also familiar with the costs and procedures relating to special elections.14 8. At no time prior to the primary election held on April 2, 2013, did my office15 eceive a challenge, of any kind, concerning the qualifications of any candidate16 or the office of Mayor.17 9. At no time following the primary election held on April 2, 2013, did I receive a18 equest to inspect any records pursuant to an election contest or receive any other19 ype of challenge.20 10. The estimated cost to hold a special election is 123,000.00.21 11. There are significant resources and time commitments associated with preparing22 or and conducting a special election that would otherwise be used to conduct23 ity business.2425262728

    Page 1 of 2

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    12. Ex B is true nd correct certified copy of the results of the prim ry electionheld on April 2 201 3

    I declare under penalty of perjury that the foregoing is true and correct.

    Dated this r2i day of July 2014.

    SABRINA MERCADANTE

    23

    6789

    10

    12131415161718192 0212 22 32 42 52 62 72 8

    Page 2 of 2

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    142,8135,9299,1092,600

    Total.- 7 ,638

    4.156.381.82

    12.35

    155/155 100.009,618

    390186241459123

    6,520Total... 7,537

    54.842.221.061.372.620.70

    37.18100.00%

    155/155 100.002,6872,7072,4908,450

    Total... 6,334

    16.4516.5715.2451.73

    100.00%155/155 100.00

    6,8036,9921,7231,178

    Total... 6,696

    40.7541.8810.327.06

    100.00

    2 13 MUNICIPAL PRIMARY ELECTIONApril 2 2013

    Subdivision ReportClark County

    Official Final--HENHenderson - At LargeRegistration Turnout

    Election Day TurnoutEarly Vote TurnoutMail Turnout

    MAYOR OF HENDERSONHafen, Arthur A. 'Andy'Hamilton, Eddie 'In Liberty'Robinson, KylerSakura, JerryScala, JoeSimmons, ClaytonWorkman, Rick

    CITY COUNCIL, WARD III, HENDERSONCutler, BruceDoyle, Milt E.Lale, ErinMarz, John F.

    MUNICIPAL COURT JUDGE, DEPT. I, HENDERSONDiGiacomo, Sandy AllredStevens, Mark JeffreyThompson, Gary D.Zach, Terry Jones

    R T I F Im i n u m m I b m B7) . I TRalt h e oxgrasiellialifilliamilfte t i a n tApril 03, 2013 8:28 AM age 1 of 1

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    Ex C

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    4.. N.4 Rate 7 Ca :lone

    CITY OF HENDERSONCity Attorney s Office

    Josh M. Reid, City AttorneyP.O. Box 95050, MSC 144

    Henderson, NV 89009-5050702) 267-1200VIA E MAIL

    March 28, 2013Rick WorkmanAccreditation CoordinatorHenderson Police Department223 Lead StreetHenderson, Nevada 89009

    Re: Personal and Confidential Advisory OpinionDear Mr Workman:

    I was informed today that at some point close in time to your decision to file yourDeclaration of Candidacy for Mayor of Henderson, you contacted a member of the CityAttorney's Office ( CAO ) to determine if your decision to run for such office would have anybearing on your employment with the City. Although you never requested a formal opinionfrom the City Attorney, it appears that you were under the impression that a formal opinion,setting forth the City's position on the issue was going to be prepared and provided to you.On behalf of the CAO, I apologize for the apparent breakdown in communication. For yourfuture reference, as a City employee you have two resources when seeking an ethics opinion.Under HMC 2.40.100 you can ask the City Attorney for an Advisory Opinion. Requests foran Advisory Opinion should be made in writing to the City Attorney. In addition, as a Cityemployee you may ask for an ethics opinion by the Nevada Commission on Ethics.

    With respect to your decision to run for Mayor and any effect that your candidacy mayhave on your current employment with the City, HMC 2.40.090(B) states [a] City employeemay run for or hold political office so long as that office is not inconsistent with the employee'sjob duties. This provision in the HMC is not a bar against City employees, including you, fromrunning for elective office. This provision relates to a City employee's ability to fulfill their workduties while running for elective office. Under HMC 2.40 someone could file a complaint withthe City Attorney with regard to a City employee's violation of this provision, but I can assureyou that this has not occurred with respect to your candidacy.

    With respect to the City of Henderson Charter, Sections 1.080 1(a) and (2) do notpreclude a City employee from running for Mayor. Nevertheless, these provisions of theCharter do not allow the Mayor or any member of the City Council to be a City employee.Accordingly, if you are successful in your mayoral campaign you will have to resign as a City

    City Attorney's Office (702) 267-1200 fax (702) 267-1201 www.cityofhenderson.com

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    Rick Workman Advisory OpinionMarch 28 2013Page 2

    employee before taking the Oath of Office as Mayor. Unless you resign from youremployment you would automatically forfeit your office as Mayor.Should you have any questions or need additional information regarding this important matterplease feel free to contact me at your convenience. Again I apologize again for any delay.

    Sincerely

    Josh M. ReidCity Attorney