Hafen’s not dead yet

If you thought Henderson resident (and city employee) Rick Workman was simply going to walk away from his electoral-turned-legal battle to oust incumbent Mayor Andy Hafen from office, think again.

Workman, who lost the 2013 primary election to Hafen, has been trying to get the mayor to leave office ever since the Nevada Supreme Court ruled in February in Lorton v. Jones that the state’s term limits law prohibits anyone from serving more than 12 years on a local government, whether that service is as a council member or as mayor.

Prior to the ruling, most people assumed term limits applied separately to council members and mayors, such that a person could serve up to 12 years as a member of the council, then run for mayor and serve up to another 12 years. But after would-be Reno mayor Eddie Lorton sued to prevent a pair of term-limited incumbents from subsequently seeking the mayor’s office in elections this year, the Supreme Court sided with Lorton’s interpretation.

That ruling affects Hafen, who has served since 1987 on the Henderson City Council, long before term limits were even proposed and made part of the state constitution by voter initiative in 1994 and 1996. If the Lorton precedent had been in place all along, Hafen would have been barred from running for mayor in 2009. Now, Workman is seeking to apply the ruling’s logic and oust Hafen from office immediately.

Workman tried asking Hafen to step down voluntarily, and when that failed, he petitioned state officials to bring a lawsuit to oust Hafen. But after Attorney General Catherine Cortez Masto refused, saying the Lorton ruling should only be applied going forward, Workman’s lawyer — Stephanie Rice, the same attorney who won the Lorton case — filed a petition with the state Supreme Court.

There are some problems with Workman’s petition, however.

Workman has no claim to the office. Rice styles Workman in her petition as both “a private citizen of this State, as well as a competing office holder.” But that’s not accurate: Workman has never held office in Henderson. He finished a distant second in the 2013 mayoral primary. (Hafen won the race outright with 54.8 percent of the vote, compared to Workman’s 37.2 percent.) And although Rice tries to minimize the significance of Hafen’s victory by noting only 12 percent of registered voters participated in the election, there’s no asterisk here: Hafen won, and as such was named mayor. Workman lost, and as such was never anything more than an office seeker, not an office holder.

This fact becomes important because typically, the type of petition Rice is pursuing is available only to a person who has a rightful claim to an office that has been usurped by another person. Since Workman was never elected to the office of mayor, he has no such claim, and thus doesn’t appear to have standing to bring such a petition. (This is not a fatal defect, as I explain below. In addition, Rice has applied for an alternative writ of mandamus to force state officials to bring an action to oust Hafen.)

You may not agree with the AG, but that doesn’t mean she’s wrong. One of the grounds upon which a private person may bring the kind of petition Workman is seeking arises when the attorney general refuses to act, and that refusal “under the circumstances was improper and not in the public interest.”

Rice argues that’s precisely what’s happened here, because the attorney general concluded in a May 1 letter that the Lorton ruling “established a new rule of law which will be adequately enforced with prospective application….”

“The Attorney General’s office is mistaken in its reasoning for not pursuing action against Mr. Hafen,” Rice contends. “The reasoning of the attorney general’s office to decline action against Mr. Hafen is flawed, and thus refusal to bring action is improper and fundamentally against public interest.”

Rice argues that simply because a law draws upon past facts (i.e. Hafen’s re-elections in 1999, 2003 and 2007, after the term-limits law went into effect) does not mean applying the Lorton ruling constitutes applying the term limits law retroactively. (She cites a case to that effect.) But if the attorney general’s office is correct — and there’s at least enough evidence to suggest that its interpretation is valid — then the Lorton case established an entirely new doctrine. While Rice may dismiss that interpretation, it will be up to the court to decide which is most valid.

Timing is everything in politics. In 2013, when Hafen ran for mayor, the prevailing view in the state was that the office of mayor and the office of council member were separate, as far as term limits went. (Indeed, even the author of the term-limits initiative, Sig Rogich, said the issue was never addressed in debates over the initiative, but if it had come up, he’d have considered the offices subject to separate 12-year limits. And even the attorney general’s office identified the ruling as “a new rule of law.”)

But that doesn’t prevent Rice from accusing Hafen of willingly flouting the term-limits law when he signed his declaration of candidacy, which certifies under penalty of perjury that Hafen “compl[ied] with any limitation prescribed by the Constitution and laws of this state concerning the number of years or terms for which a person may hold the office.”

According to Workman’s petition, “It can be argued that failing to resign after explicitly agreeing, under penalty of perjury, to comply with any term limit provisions set forth in the Nevada Constitution, which obviously includes [the term limits section] Article 15, Section 3(2), constitutes an intentional disregard of the law,” (emphasis in original).

But Hafen could only intentionally disregard the law if he had sufficient notice that he was breaking it. Up until the Lorton ruling, however, the prevailing view was that Hafen could, in fact, seek office as mayor even if he’d served 12 years on the council. There was, at the very least, enough ambiguity to justify a legitimate argument that the offices were separate. It was only after the Lorton ruling — which surprised many observers, including me — that the state of the law was clarified by the state Supreme Court. By that time, Hafen had been easily re-elected.

This fact becomes important when one considers that even Workman didn’t raise the issue when he should have — after Hafen had filed for re-election. Workman never objected to Hafen’s candidacy as barred by term limits until after the Lorton ruling was issued, which suggests that he, too, shared the belief in 2013 that Hafen’s candidacy was legitimate.

Rice tries to explain away Workman’s silence thusly: “Just because someone lacks the resources to challenge unlawful conduct does not somehow make the conduct lawful,” she wrote. “What if not one has the resources or ability to formally challenge Mr. Hafen at the next election? Should he decide to run for another seat on the Henderson City Council and win election again, is that legal or acceptable? Does the fact that he was not challenged as a candidate mean that he gets to continue to hold public office in direct violation of the Nevada Constitution?”

But it wasn’t Workman’s lack of resources (he made $125,453 in base pay as the city’s criminalistics administrator in 2013, according to the Transparent Nevada website) that kept him from raising the argument. In fact, Workman could easily have raised the issue cost-free by simply talking to the press, including the Review-Journal, which endorsed him over Hafen in the 2013 race. Workman certainly showed no compunction about accusing the city of intimidation after he lost the primary.

Yet he remained silent on what could potentially have been an election-changing issue because of “a lack of resources”? That’s simply unbelievable.

And if Hafen does try to file for re-election in 2017, no one will have to challenge him, as the entire state now has constructive notice (under the Lorton precedent) that he and all similarly situated elected officials are barred by term limits from seeking further terms. (Indeed, members of the Las Vegas City Council who find themselves term-limited are looking to other offices outside the city to further their careers.)

But none of that may matter. It’s entirely possible, however, that Workman’s obvious lack of standing and his failure to timely raise the issue of Hafen’s eligibility for office might not stop his petition. That’s because in a case directly on point — 2009’s Lueck v. Teuton — the Supreme Court held that a judicial challenger lacked standing to evict an ineligible judge from office, but the court elected to decide the case anyway, ultimately ousting the judge.

The facts in this case are similar: A private citizen with no particular claim to an office is seeking a writ to evict an officeholder on constitutional grounds. A legal and policy question is presented — was Hafen eligible for office when he ran in 2013 (which, it appears under Lorton, he was not). What now should be done? Should he be allowed to complete his term, but barred from future elections? Or should he be removed from office immediately?

The court may — and I stress may — elect to rule notwithstanding the flaws in Workman’s claims. But this case has surprised observers before, and thus we should have no expectations as to what justices may or may not do.