Attorney: Court must act on Henderson mayor term limits

Henderson Mayor Andy Hafen should be removed from office immediately, and his lawyers should behave more professionally, the attorney for a city employee challenging the mayor’s legitimacy said in a court filing.

Reno attorney Stephanie Rice fired back against briefs filed by the attorney general’s office, the city of Henderson and Hafen himself in a case that asserts Hafen has stayed in office far longer than state term limits allow. She’s suing on behalf of Rick Workman, who ran against Hafen last year but lost in the primary election.

Although the attorney general, the city and Hafen’s lawyer contend that Workman lacks standing to bring a challenge, Rice argued in her briefs that the constitutional term limits law doesn’t require anyone to bring a challenge; a violation is a violation and the court has the authority and duty to correct it, Rice writes. And the fact that Workman failed to challenge Hafen on the grounds of term limits until a year after the election doesn’t matter, she argues.

The Constitution “…does not say that it only applies if and only if a challenge is made prior to the individual being elected to that office; it states that ‘No person may be elected’ if that individual has served in that office, or at the expiration of the individual’s current term, will have served, 12 years or more,” Rice writes. “In 2009, when Mr. Hafen ran for the seat of mayor, he could not be again elected to Henderson’s governing body because at the end of the current term he was serving, he would have served 12 years or more.” (emphasis in original)

A brand new rule of law?

The fact is, Workman most likely didn’t challenge Hafen in 2013 because he wasn’t aware of a possible interpretation of term limits that holds a person is limited to 12 years total on a local governing body, regardless of whether those years are spent serving as a city council member or as mayor.

Most people in Nevada were of the view that the mayor’s office in cities such as Henderson was separate and distinct from the office of a city council member, such that a person could serve for up to 12 years on the council but still be eligible to serve as mayor for up to another 12 years. (In fact, an attorney general’s opinion written in 2008 and made public in 2012 came to that very conclusion.) That’s also the most likely explanation for why the secretary of state or Henderson officials didn’t stop Hafen from filing for re-election in 2013, too.

But that all changed in 2014, when Rice — representing Reno mayoral candidate Eddie Lorton — persuaded the Nevada Supreme Court to rule that a person who had served for 12 years on the council couldn’t run for mayor, since term limits applied equally to both jobs. The case — Lorton v. Jones — surprised many, although a Legislative Council Bureau legal opinion requested in 2011 but not revealed until 2013 had come to the same conclusion.

Still, the attorney general argues the ruling in the Lorton case created a new rule of law, one that should only be applied prospectively. But Rice argues in her brief that the case presented an entirely new issue, and didn’t overturn past precedents. As a result, it’s not a new rule, it’s simply the correct interpretation of how the law always should have been interpreted, she argues. And, she adds, the outcome was easily foreseeable.

“There is no question that this was a foreseeable decision. The fact that it was not brought before this court prior to the Lorton case has no bearing on whether or not the outcome was clearly foreshadowed,” she writes.

Although the opposing parties argue that Workman doesn’t have standing to bring a case, and that even if he did, he can’t compel the state to remove Hafen from office, Rice argues that court retains the authority to either allow Workman to bring a lawsuit to evict Hafen from office; to direct state authorities to act; or to remove the mayor by its own order.

“The interpretation and enforcement of the Nevada Constitution are exclusively judicial functions,” Rice writes. “In this case, it is for this court to determine whether the Nevada Constitution has been breached and the consequences that follow such a breach.”

In sum: “To allow Mr. Hafen to continue for the remainder of his term as a legislator for the city of Henderson would be permitting Mr. Hafen to serve as a member of the governing body of the city of Henderson for literally three (3) decades. To permit such conduct is to clearly ‘retard’ the public policy behind this court’s decision in Lorton to enforce the spirit of the law behind the term limits amendment and protect the will of the voters who voted for it overwhelmingly — twice,” she writes.

And again: “Allowing Mr. Hafen to finish out his term for a total of three (3) decades in office will not cure the constitutional flaw in his service, nor does it protect the overwhelming intent of the voters who voted for and passed the term limits amendment in two separate elections.”

Getting personal

Rice also addressed allegations that Workman was bringing his lawsuit to take revenge on Hafen for the mayor’s primary victory.

“It is no secret that the city of Henderson has a history of ‘bending,’ or what many view as ‘breaking’ the rules for the political powers that be. That is not only unethical, it is unfair,” she writes. “Nevada prides itself on being a tight-knit state and community. But that pride quickly turns to resentment when back-room handshakes and political back patting get to the point of completely obliterating the law — here, a law that the voters of this state voted overwhelmingly to pass — twice.”

And Rice also struck back at an allegation contained in Hafen’s brief, which implies she made a misstatement of fact that could violate court rules, when she referred to Workman as “a competing office holder.”

“It is undisputed that Mr. Workman ran against Mr. Hafen for the seat of mayor,” Rice writes. “Accordingly, by the regularly understood, common meaning of running against someone, Mr. Workman was competing against Mr. Hafen for the seat of mayor. Any arguments that Mr. Workman was not a competing office holder are simply arguments trying to further muddy the waters before this court.”

But while Workman may have been a candidate for office, he never actually was elected to office. Therefore, it doesn’t appear it can legitimately be said that Workman is, in any sense, an office holder. At most, he was an aspirant to hold office, but was denied the chance by Hafen’s victory.

With all the pleadings filed, the case will now be set for oral arguments before the justices.