Term-limits lawsuit asks whether mayors are unique

Is Henderson Mayor Andy Hafen really the city’s legitimately elected mayor?

That intriguing question is raised because of a lawsuit filed against the city of Reno and two former Reno City Council members who may run for mayor in next year’s elections. The lawsuit — filed by businessman and would-be mayor George “Eddie” Lorton — contends the mayor is part of the City Council, so if you’ve already served the maximum 12 years as a council member, you can’t run for mayor.

If the state Supreme Court upholds that view, Hafen could be in trouble: He served 22 years on the Henderson City Council (10 of those after the term-limit amendment took effect) before he was elected mayor in 2009. If 12 years is the limit for council service, Hafen passed it in 2011 and should have been ineligble to run in 2013, when he won re-election handily.

But hizzoner shouldn’t start sweating just yet.

First, the lawsuit is not yet suitable for a hearing before the state Supreme Court. That’s because filing for Reno offices doesn’t open until March 3, and an allegedly term-limited candidate isn’t an official candidate until the papers are filed. The lawsuit admits as much, conceding there is a procedure for challenging candidates in state law, but “at this time the procedures of [the law] provide no plain, speedy or adequate remedy in the ordinary course for petitioner in this case.” Translated: You can’t challenge a candidacy that hasn’t happened yet, which means this case is as ripe as a green banana.

Lorton’s attorney, Stephanie Rice, argues the timeline for printing ballots is extraordinarily tight, and that a challenge filed after the close of candidate filing doesn’t leave enough time to litigate the issue. But it still smacks of requesting an improper advisory opinion.

Procedural objections aside, even if the court were to take up the case, there’s not much hope for Lorton’s argument.

The lawsuit cites a 2011 Legislative Counsel Bureau opinion requested by state Sen. Ben Kieckhefer, R-Reno. That eight-page document concludes that because the Reno City Charter explicitly makes the mayor a full voting member of the City Council, “we believe the mayor is to be regarded as a member of the City Council for all purposes, including application of the term-limit provision.” Thus, “a person who has served 12 years or more in office as a council member on the Reno City Council is not eligible to be elected as the mayor because the mayor is a member of Reno’s local governing body.”

That’s about the only support for the idea that the office of mayor is essentially the same as the office of city councilman, however. More compelling is a 2008 attorney general opinion, which looked to the unique status of the mayor’s job to differentiate those offices.

“It is our opinion that the two positions are nevertheless separate and distinct,” wrote Deputy Attorney General Marta Adams. “The voters certainly understand that the offices are distinct; they cast votes for mayor and city councilman respectively and the mayor has additional, independent executive duties which are distinguishable from other city councilman positions.”

Under Reno’s charter, the mayor not only serves as the ceremonial head of local government, he or she can call special meetings, declare emergencies and deputize additional city police officers. Lorton’s argument might have merit under a different charter. For example, in Huntington Beach, Calif., the city charter says council members are all elected at large, and they choose a mayor from among themselves. But Reno’s charter is much different.

For that matter, so is Henderson’s, which also imbues the separately elected mayor with powers not granted to regular council members.

Thus, it seems reasonable the Supreme Court should rule that term-limited council members are still eligible to run for mayor — even if they’ve already served 12 years on the council. That means Lorton can’t use term limits to eliminate popular rivals from next year’s ballot — and Mayor Hafen can rest easy, knowing he’s got at least one more term before he has to leave office.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or ssebelius@reviewjournal.com.