Henderson Mayor Andy Hafen won a close election, and he won a blowout. That’s the nature of politics.
But few people saw the latest and potentially most lethal threat to his mayoralty coming: A ruling in a Reno term-limits case that gives rise to the possibility of his ouster at the hands of the Nevada Supreme Court.
The list of those blindsided includes Hafen himself; although he sits on the board of the Nevada League of Cities and Municipalities, that organization declined to take a stand in the Reno case, even after high court justices requested the league file a friend-of-the-court brief. League officials say the issue was discussed, but because there was no consensus among the league’s many members, they couldn’t take a position.
That’s bad news for Hafen, because the court’s ruling in the case of Lorton v. Jones was bad news for long-serving local officials. The court held members of a “local governing body” — regardless of whether they are serving as city council members or mayors — are all subject to the same cumulative 12-year term limits that voters approved in 1994 and 1996. In other words, if you serve 12 years as a councilman, you can’t run for mayor, because you’ve hit your 12-year limit.
Hafen has served on the Henderson Council since 1987, long before term limits were a bad idea. However, per the new Supreme Court ruling, he hit his 12-year mark halfway through his first mayoral term, which he won in a close election in 2009. Thus he shouldn’t have been on the ballot in 2013, when he handily defeated Henderson city employee Rick Workman in the primary election.
Now Workman is demanding Hafen give up his seat under threat of a lawsuit. That proceeding — called a writ of quo warranto — basically demands that Hafen defend his right to hold his seat.
Back in 2013, nobody had any idea the court would rule as it did in the Lorton case. Undoubtedly, that’s why Workman failed to challenge Hafen’s legitimacy to appear on the ballot at the time. And although the Lorton ruling was entirely focused on the facts of the Reno case, it has broad application for others, especially Hafen.
Usually, the attorney general brings a quo warranto action, although a private party who alleges a rightful claim to an office can bring such an action on behalf of the state, too. Here, Workman might have a problem: Yes, he ran against Hafen and lost, and he can argue that but for Hafen’s name on the ballot, he was the highest vote-getter and would have won. But if Hafen been constitutionally barred from running, it’s highly likely that another member of the council — a person with higher name recognition, more municipal experience and a greater ability to raise campaign funds — would have run and won.
But even if Workman can’t establish standing, the Supreme Court could still act: In 2009, justices ruled a citizen who brought a lawsuit against a judge, claiming his appointment had expired, didn’t have standing. But the court nonetheless took up the case and ordered then-Gov. Jim Gibbons to declare the office vacant. As one court observer put it, the Supreme Court can act if it wants to act.
If the court does act, there’s no way to escape the reasoning in the Lorton precedent: It means Hafen has exceeded term limits for his office. Justices could remove him (by what the law deliciously calls a “judgment of ouster”), leaving the city to fill the seat, either by appointment, by a special election, or by allowing the mayor pro tem (currently Councilman Sam Bateman) to become mayor, and filling Bateman’s seat by appointment or special election.
Perhaps that friend of the court brief wouldn’t have made a difference. But one lesson here seems to be, when the court asks for an opinion in a case that could have profound effects for local governments, it’s probably a good idea to speak up.
Steve Sebelius is a Las Vegas Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or firstname.lastname@example.org.