Workman v. Attorney General petition

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Electronically FiledMay 21 2014 10:13 a.m.Tracie K. LindemanClerk of Supreme Court

Docket 65716 Document 2014-16534


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enderson Mayor, Arthur Andy Hafen is currently holding office in violation2 of the 1996 Term Limits Amendment to the Nevada Constitution in that he had already3 served almost seventeen (17) years in office when he was re-elected in 2013. See,4 Nev. Co nst. Art. 15, 3.5 etitioner Rick Workman ( Petitioner ) elector citizen, by and through his6 counsel Stephanie Rice, Esq. and Hardy Law Group, hereby respectfully petitions this7 Court for leave to file or proceed with a quo warranto action herein pursuant to NRS8 35.090 and in accordance with NRS Chapter 35, or in the alternative, Writ relief9 pursuant to NRAP 21, Article 6, Section 4 of the Nevada Constitution and NRS 34.160

10 and seeks removal of the M ayor of Henderson, Arthur Andy Hafen (hereinafter M r.Hafen ) because he is not qualified and was not qualified at the time of his election

12 thereto to hold such position.3 etitioner herein bases his request on Article 15, Section 3 of the Nevad a

14 Constitution, which provides:5 . No person shall be eligible to any office who is not a qualifiedelector under this constitution.

2. No person may be elected to any state office or local governingbody who has served in that office, or at the expiration of his currentterm if he is so serving will have served, 12 years or more, unless thepermissible number of terms or duration of service is otherwisespecified in this constitution.Nev. Const. Art. 15, 3. Mr. Hafen served his maximum allotted twelve years ormore as a member of the Henderson City Council at the end of the four-year term hewas elected to in 2007. As such, The additional term or terms Mr. Hafen has beenelected to on the governing body of the city of Henderson as Mayor, are void, as amatter of law. His continued service therein constitutes an ongoing and direct violationof Article 15, Section 3(2) of the N evada Co nstitution.

Accordingly, Petitioner respectfully asks this Court to grant Petitioner leaveherein to proceed with this matter in a quo warranto action or, in the alternative, grant

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Petitioner Writ relief and direct the Attorney General of the State of Nevada and/or theNevada Secretary of State as the C hief Elections Officer of the state, to take action andmandate that Arthur Andy Hafen be immediately removed from the legislative bodyof the city of Henderson, as he has exceeded the twelve-year term limit constraints setforth in Article 15, Section 3(2) of the Nevada Constitution. He was not qualified forre-election thereto and is not, therefore, qualified to continue to unlawfully hold suchseat.I. THIS COURT S DISCRETION TO EXERCISE ITS JURISDICTION ISNECESSARY AND PROPER IN THIS CASE

a JurisdictionThis Court has original jurisdiction over quo warrant and other writ actions, as

set forth in Article 6, Section 4 of the Nevada Constitution, which states in pertinentpart, The court shall also have power to issue writs of mandamus, certiorari,prohibition, quo warranto, and habeas corpus and also all writs necessary or proper tothe com plete exercise of its appellate jurisdiction.

Further, NRS 35.080 provides this Court with jurisdiction to hear quo warrantactions as follows: An action under this chapter can be brought in the Supreme Courtor in the district court of the proper county. NRS 35.080. There is no just, speedy,or adequate remedy at law other than leave to proceed in quo warranto, a Writ ofMandamus or other extraordinary Writ relief. Accordingly, this Court has jurisdictionto hear the matters set forth herein. Nev. Const. Art. 6, 4; NRS 34.150.

b Quo Warrant ProceedingsPetitioner recognizes that, pursuant to NR S 35.010 (1):

A civil action may b e brought in the nam e of the State: 1. Against aperson who usurps, intrudes into, or unlawfully holds or exercises apublic office civil or military, except the office of assemblyman orstate senator, or a franchise, within this state, or an officer in acorporation created by the authority of this state.

[Emphasis Added]. However, desp'te Petitioner's good faith request to the Governor,

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Attorney General and Secretary of State to commence such action, the AttorneyGeneral has declined to do so. 1 As such, Petitioner is forced to turn to the provisionsof N RS 35.09 0, which provides:

Up on app lication for leave to file a comp laint, the court or judg emay, in its discretion, direct notice thereof to be given to thedefendant previous to granting such leave, and may hear thedefendant in opp osition thereto; and if leave be granted, an entrythereof shall be made on the m inutes of the court, or the fact shall beendorsed by the judge on the complaint, which shall then be filed.89 N R S 35 .09 0. Petitioner respectfully seeks such permission herein. W here the

10 attorney general refuses to act, one claiming election to an office may, by leav e of1 1 court, bring quo w arranto on his ow n relation, when he has no other remedy. State ex2 rel. McMillan v. Sadler 25 N ev. 13 1 , 58 P. 284 (1899 ) modified 25 N ev. 1 31 , 59 P.3 546 (1 900) and modified 25 N ev. 1 31 , 63 P. 1 28 (19 00 ). Ordinarily, only the state

14 attorney general may file a quo warrant action under N R S 35 .01 0-.270 . State ex15 rel. Holland v. City of Reno 262 P .2d 953 , 954 (N ev.19 53 ). However, the Court in6 Belec v. Amerco 39 F.3 d 1 1 86 ( 9th Cir. 1 99 4), articulated the criteria this Court has

17 used for making an exception to that general rule:8 n excep tion may be m ade if three criteria are met: (1 ) the actionwould provide the only possible basis for relief to the private9 laintiff, (2) the attorney general has refused to bring the action, and(3 ) the refusal under the circumstances w as improper and not in the20 ublic interest. Id (construing State ex rel. McMillan v. Sadler 58P. 284 Nev.1899)). Whether these criteria have been met is

2 etermined w hen the private plaintiff applies for leave to bring theaction. Holland 262 P .2d at 954; see also N ev.Rev.Stat. 35.04022 requiring leave to file action on behalf of relator). Deciding w hetherto grant leave am ount[s] to a review of the attorney general's2 3 ctions.24 Belec v. Amerco 39 F.3d 1 1 86 (9th Cir. 19 94), cit ing Holland 262 P .2d at 95 4.2 5 Petitioner herein meets such criteria.

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26 ii2728 rue and correct copy of correspondence from the Attorney General's officedeclining quo w arrant action is attached to Petitioner's Appendix at Ex hibit 1 .

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11 1 [Emphasis Added]. NRS 35.010.1 2 ere, Petitioner is both a private citizen of this State, as well as a competing1 3 office holder. Petitioner ran against Mr. Hafen, along with five (5) other candidates, in1 4 Henderson's 2013 municipal election. 2 Out of 142,813 registered voters, only 17,638,1 5 or roughly 12% voted in the primary election on April 2, 2013. Id Mr. Hafen won1 6 with 54.84% of the vote. Petitioner received the next highest vote at 37.18%. Id The1 7 other five (5) candidates received less than 8% of the vote, combined. Id Petitione1 8 complied with the provisions of NRS Chapter 35 and respectfully made requests of the1 9 Attorney General, Secretary of State (as the Chief Elections Officer) and/or the2 0 Governor respectively, to act or compel action against Mr. Hafen; however, those2 1 requests were declined. 32 2 etitioner's only choice is to request leave of this court to bring this quo23 wan anto action himself. See, State ex rel. McMillan v. Sadler 25 Nev. 131, 58 P. 2842 4 1899) modified 2 5 Nev.131, 59 P.546 1900 ) modified 2 5 Nev.131, 63 P.128 1900 ).2 52 6 2 A true and correct copy of Henderson's 2013 Municipal Primary Election results areattached to Petitioner's Appendix at Exhibit 2, pages PA000005-000006.

3 A true and correct copy of Petitioner's requests are attached to Petitioner'sAppendix at Exhibit 3. See also, Exhibit 1 attached to Petitioner's Appendix.

1 his action is the only appropriate basis for the reliefNRS 35.010 provides that a quo warrant action is the proper proceeding to

remove a public officer who unlawfully holds office, asserting that:A civil action may be brought in the name of the State:1. Against a person who usurps, intrudes into, or unlawfully holds orexercises a public office civil or military, except the office ofAssemblyman, Assemblywoman or State Senator, or a franchise,within this state, or an officer in a corporation created by theauthority of this state.2 Against a public officer civil or military, except the office ofAssemblyman, Assemblywoman or State Senator, who does orsuffers an act which, by the provisions of law works a forfeiture ofthe office.

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2 he Attorney General has refused to brim - the action2 n April 4, 2014, Petitioner, by and through counsel, sent a request via both

United States Postal Service as well as facsimile (to avoid delay), to the Honorable4 Governor Sandoval, Attorney General Cortez Masto and Secretary of State Miller,5 respectfully asking that they Please consider this a formal request to commence quo6 warrant proceedings against the current Mayor of Henderson, Andy Hafen." 47 hree weeks later - after failing to hear anything at all in response to Petitioner's8 April 4, 2014 request - on April 25, 2014, Petitioner sent a follow-up request via both9 United States Postal Service (this time by Certified Mail) as well as facsimile (again,

10 to avoid delay). Idater that same day, counsel for Petitioner learned via the Las Vegas Review

1 2 Journal that the Governor's office maintains that the request is a legal matter for the13 secretary of state's and attorney general's offices and further, that the Secretary of14 State's office ha[d] received the letters and will review them. 5 To date, Petitioner15 has not received any direct response from the Governor's office, or the Secretary of16 State s office.1 7 owever, on May 1, 2014, Petitioner received correspondence from the18 Attorney General's office stating, [I] am writing to inform you that this Office does19 not intend to bring a quo warranto action against Mayor Hafen. 6 As such, it is clear2 0 that the Attorney Gen eral has refused to bring this action.21

3 he Attorney General s refusal to bring the action is improper andagainst public interest.The Attorney General's office is mistaken in its reasoning for not pursuing

action against Mr. Hafen. In declining to commence action, the Attorney General's

4 see, Exhibit 3 attached to Petitioner's Appendix at PA000009- PA000024.5 A true and correct copy of the Las Vegas Review Journal's April 25, 2014 article isattached to Petitioner's Appendix at Exhibit "4," PA000026.5 See, Exhibit 1, attached to Petitioner's Appendix at PA000001- PA000003.

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office writes, It appears that Lorton established a new rule of law which will be2 adequately enforced by prospective application, and that retrospective application may3 produce inequitable results to the voters by removing the official whom they re-electedprior to the ruling in Lorton. (Citations Omitted). Id.

5 he reasoning of the Attorney General's office to decline action against Mr.6 Hafen is flawed, and thus, refusal to bring such action is improper and fundamentally7 against public interest. This Court addressed a similar retrospective application8 argument with respect to Article 15, Section 3 of the Nevada Constitution in Miller v.9 Burk 124 Nev. 579, 592-95, 188 P.3d 1112, 1121-23 (2008). In that case, this Court

1 held that applying Article 15, Section 3(2) to preclude real parties in interest from1 1 serving in the same position in 2009 does not constitute an impermissible retrospective1 2 application. Id.1 3 n Miller v. Burk the real parties in interest made the argument that Article 15,14 Section 3 cannot be applied retrospectively because an individual's years of service1 5 are necessarily linked to the individual's election, including within a years-of-service1 6 calculation those terms that were filled based on an election held before the term-limit1 7 amendm ent became effective is an impermissible retrospective application of the term-1 8 limit amendment. Id. at 59 2-593.1 9 owever, this Court disagreed and citing to Public Employees' Benefits2 0 Program v. LVMPD, 124 Nev. 138, 179 P.3d 542, 553 (2008) held, just because a21 statute draws upon past facts does not mean that it operates 'retrospectively.' Id.22 This is the exact case here.23 his case pertains to an immediate, current and ongoing disregard of an2 4 established Nevada Constitutional Amendment, which past facts serve to corroborate.25 Therefore, Petitioner is asking that this Court draw upon the past facts: Mr. Hafen has2 6 held a seat on the legislative body of the city of Henderson for more than twenty-five2 7 (25) years- seventeen (17) of them after the enactment of Article 15, Section 3(2).28 Then, in applying those past facts to the term limits amendment and this Court's

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clarification thereof, Mr. Hafen must be removed from unlawfully continuing to hold2 office with the city of Henderson.3 rticle 15, Section 3(2) of the Nevada Constitution has been a valid law in this4 state since its enactment in 1996. Petitioner is not asking that any interpretation5 thereof be applied prior to its 1996 enactment. Petitioner simply seeks to enforce the6 law, as written in 1996 and as interpreted by this Court in Lorton v. Jones, 130 Nev.7 Adv. Op. 8, 322 P.3d 1051 (2014), reh'g denied (Mar. 5, 2014). Lorton v. Jones did8 not amend Article 15, Section 3(2) or add, change or supplement any part thereof, or9 any other statute or law for that matter.

10 pplying the analysis set forth by this Court in Lorton v. Jones to the instantmatter does not constitute retrospective application of Article 15, Section 3(2), it

12 simply draws upon past facts and, as this Court has previously held, doing so does13 not mean that it operates 'retrospectively.' See, Miller v. Burk 124 Nev. 579, 592-14 95, 188 P.3d 1112, 1121-23 (2008); Citing, Public Employees Benefits Program v.15 LVIV IPD 12 4 Nev. 138, 179 P. 3d 5 42 , 5 5 3 2 008).16 ccordingly, the Attorney General's refusal to take action to remove Mr. Hafen17 and its reasoning therefor, is improper and fundamentally against public interest (as18 discussed m ore fully herein).19 Alternative Writ Relief2 0 writ of mandamus is available to compel the performance of an act that the2 1 law requires as a duty resulting from an office, trust or station, or to control an2 2 arbitrary or capricious exercise of discretion. Brewery Arts Center v. State Bd. o2 3 Examiners 108 Nev. 1050, 105 3, 843 P.2 d 369 , 372 Nev. 199 2 ); NRS 34.16 0.2 4 hould this Court deny Petitioner's request for leave to proceed in quo warranto,2 5 in the alternative, Petitioner respectfully asks this Court to exercise its discretion to2 6 hear this matter on the merits under its general Writ discretion. Specifically, Petitioner2 7 asks this Court to grant alternative Writ relief directing the Attorney General or the2 8 Nevada Secretary of State (as Chief Elections Officer), to take appropriate action o

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mandate that Mr. Hafen be immediately removed from office. Mr. Hafen has2 exceeded the twelve-year term limit constraints set forth in Article 15, Section 3 of the3 Nevada Constitution, and thus he was not qualified for re-election thereto, and is4 therefore, not qualified to continue to unlawfully hold such seat.5 he decision to entertain a petition for mandamus is discretionary within this6 Court. Redecker v. District Ct. Mosley), 122 Nev. 164, 167, 127 P.3d 520, 5227 (2006); See also, S. California Edison v. First Judicial Dist. Court of State of Nevada,8 2 55 P.3d 231, 2 34 (Nev. 2 011), reh g denied (Sept. 20, 2 011).9 his Court may consider whether judicial economy and sound judicial

10 administration militate for or against issuing the writ. Id. at 167. While Petitioner11 understands and holds great respect for the long-standing precedent of this Court - that2 the issuance of writs is an extraordinary remedy - Petitioner respectfully asks this3 Court to hear this matter following its previous decisions granting writ relief, where4 the circumstances reveal urgency and strong necessity. See, Cote H. v. Eighth Judicia5 District Court ex rel. County of Clark 17 5 P.3d 906, 908 (Nev. 2008).6 andamus relief is justified here, given the important matter of public concern a7 issue. Additionally, and while not binding on this Court, under similar circumstances8 California courts have held as follows:

19 private party in California may bring a quo warranto action tochallenge any person allegedly holding or exercising public office2 0 nlawfully. Cal.Civ.Proc.Code 803 (1980); Nicolopulos v. City ofLawndale, 91 Cal.App.4th 1221, 111 Cal.Rptr.2d 420, 422-252 2001). The quo warranto procedure is the exclusive remedy tochallenge title to an elected office and is an adequate post-22 eprivation process to satisfy procedural due process. IdD'Agostmo's argument that the quo warrant process is inadequate23 ecause the Attorney General must approve the suit fails because anarbitrary denial of permission by the Attorney General can be2 4 hallenged in a state man damu s action. Id. at 42 5.25 [Emphasis Added]. D Agostino v. Delgad illo, 111 F. App x 885, 887 (9th Cir. 2 004).2 6 etitioner finds this to be the ease with respect to Nevada's Writ statutes as well2 7 because NRS 34.170 explicitly provides, [Writ shall be issued in all cases where28 there is not a plain, speedy and ad equate remedy in the ordinary course of law.. . . .

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[Emphasis Added]. Even if this Court declines Petitioner's request to proceed in quo2 warrant, NRS 34.170 provides for a catchall procedural remedy (which is of course3 not to be abused) when circumstances such as this arise. Perhaps even more4 importantly, when a Petitioner has a good faith belief that the Attorney General has5 erred in declining to proceed w ith requested action.6 ccordingly, Petitioner brings this alternate request for Writ relief as a private7 citizen, because this matter involves an issue of great public importance and seeks to8 enforce a public duty. See, NRS 34.170. See also, Indep. Am. Party of C lark Cnty. ex9 rel. Hansen v. Miller ex rel. State 124 Nev. 147 6, 238 P.3d 821 2008).

10 his Court held in State v. Gracey 11 Nev. 223 (1876), Where the writ o11 mandamus is sought for the enforcement of a public right, common to the whole12 community, it is not necessary that the relator should have a special interest in the3 matter. In State v. Gracey Nev. 223 (1876) and also later reaffirming it's holding

14 therein in Indep. Am. Party of Clark Cnty. ex rel. Hansen v. Miller ex rel. State 1245 Nev. 1476, 238 P.3d 821 (2008), this court addressed the issue of standing for wri

16 petitions stating:17 W]hen a petition seeks to enforce a public duty and involves apublic right, the petitioner is not required to show that he has any18 egal or special interest in the result, it being sufficient if he sho wsthat he is interested as a citizen in having the laws executed and19 he right en forced. Gracey 11 Nev. at 229-30; see also State Bar ofNevada v. List 97 Nev. 367, 368, 632 P.2d 341, 342 (1981). Based20 n this reasoning, we conclude that petitioner has standing to bringthis p etition.212 2232 4

[Emphasis A dded]. Indep. Am. Party of Clark Cnty. ex rel. Hansen v. Miller ex rel.State 124 Nev. 1476 , 238 P.3d 821 2008); cit ing, State v. Gracey 11 Nev. 22 3 1876 ).

In addition to being a competing office holder, Petitioner is a citizen of25 Henderson, Nevada; and, as such, he has an interest in having the term limit laws of2 6 the State of Nevada enforced.2 7 rom the time the term limits amendment was enacted in 1996, Mr. Hafen has2 8 served on the Henderson City Council, most recently in the seat of Mayor. Thus, Mr.

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Hafen has clearly exceeded the permissible term limit by several years now; not to2 mention the almost-decade, he served, prior to the enactment of term limits. If a3 person has served in an office on a local governing body or will have served in4 an office on that local governing body for twelve (12) years or more by the time his5 current term expires, that person may not be elected to that office. Mr. Hafen's re-6 elections to Henderson's governing body after he exceeded Constitutional term limits,7 were in violation of the Nevada C onstitution, and therefore canno t stand.8 . As a Matter of Public Policy Relief by this Court is Necessary.9 enial of Petitioner's requested relief, would effectively allow Mr. Hafen to

10 continue to completely disregard the purpose and intention of the term limits1 1 amendment. This Court has a strict policy of interpreting statutes in light of the1 2 policy and spirit of the law and to avoid absurd results. In re Orpheus Trust, 1241 3 Nev. 170, 179 P.3d 562 (2008); Citing, Hunt v. Warden, 111 Nev. 1284, 1285, 90314 P.2d 826, 827 19 95) .1 5 n 1994 and again in 1996, the initiative to limit terms of state and local officials1 6 appeared on the general election ballots, proposing to amend the Nevada Constitution1 7 to impose term limits upon various state and local officers. 7 In Nevada, such1 8 initiatives must be approved by voters at two consecutive elections before it becomes19 law. See, Nev. Const., Art. 19, 2(4).20 rgument encouraging passage of the twelve-year term limitation read, in2 1 pertinent part: Proponents argue that passage will st p career po liticians since no22 one will be able to hold office for several terms. . . . local governing body members23 would have the opportunity to focus on the issues instead of reelection. [Emphasis24 Added]. Id.25 he term limit initiative not only passed in 1994, it overwhelming passed by26 nearly 70% of the vote statewide, then passed again in 1996. As set forth herein, the2728 7 A true and correct copy of the initiative from the 1994 general election is attached toPetitioner's Appendix at Exhibit "5," PA000028- PA000031.

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statistics with respect to Mr. Hafen's improper re-election pales in comparison. Out of2 142,813 registered voters in Henderson, only 17,638 - or roughly 12% - voted in the3 primary election on April 2, 2013. Mr. Hafen won with 54.84% of the vote. What that4 means is Mr. Hafen was re-elected in 2013 by less than 7% of the total registered5 voters of the city of Henderson.6 n November 27, 1996, the twelve-year term limitation went into effect and7 became law. Since that time, Mr. Hafen has served more than seventeen (17) years on8 Henderson's governing body. To allow Mr. Hafen to remain in office and finish out9 his current term would defeat the entire purpose of the term limits amendment, by

10 permitting and condoning his service as a career politician, serving the city ofHenderson for more than thirty (30) years. (More than twenty (20) of them occurring

1 2 fter the enactment of the 1 9 9 6 term limits amendment).13 he voters of this State have spoken overwhelm ingly in favor of term limits. Mr.1 4 Hafen cannot and should not be permitted to blatantly disregard the will of the voters15 and the Nevad a Constitution.1 6 n Lueck v. Teuton 125 Nev. 674, 676, 219 P.3d 895, 896 (2009), this Court17 held,18 hat question initially was brought to this court's attention whenmovant, a private Nevada citizen, sought leave to file a petition on19 ehalf of the State of Nevada for a writ of quo warranto removingthe judge from office. s we conclude that movant lacks standing,20 owever, we consider the merits of the fudge s comm ission un der21 ur supervisory responsibilities over the judicial branch.22 [Emphasis Added]. This Court has also used its discretion to grant Writ relief when23 public policy is served by the Supreme Court's invocation of its original jurisdiction,24 and when a petition raises an issue that presents an urgency and necessity of sufficient25 magnitude to warrant the Supreme Court's consideration. We P eople Nevada ex rel.26 Ang le v. Miller 124 Nev. 874, 192 P.3d 1166 (2008). Extraordinary relief is necessary2 7 by this Court, because Mr. Hafen is currently continuing to serve the city of2 8


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Henderson, in direct violation of Article 15, Section 3(2) and the voice of the people of2 the state of Nevada.3 his is not a request based on some obscure technicality, where an elected4 official has served a few days, weeks or even months past their maximum allotted5 terms, although that would not be any more in compliance with the law than the6 instance circumstance. This is a particularly egregious situation, where we have an7 elected official who, at the end of his current term, will have served literally more8 than thirty 30) years on the Hen derson City Council, more than twenty 20) of them9 after the 199 6 term limits amendment w as passed.

1 etitioner clearly has standing due to the important matter of public concern11 raised herein and this Court should grant relief, as requested herein, and hear this2 matter on the m erits.

1 3 II MRHAFEN MUST BE REMOVED AS HIS CONTINUED SERVICE ISIN DIRECT VIOLATION OF THE LAWS OF THIS STATE1 4a. The Nevada Constitution in combination with the Henderson City

Charter prohibits Mr. Hafen from continued service on behalf of thecity of Henderson1718 rticle 15, Section 3(2) of the Nevada Constitution reads:19 o person may be elected to any state office or local Koverning odywho has served in that office, or at the expiration of his current term20 f he is so serving will have served, 12 years or more, unless thepermissible number of terms or duration of service is otherwise21 pecified in this constitution.22 [Emphasis Added]. As this Court recently clarified in Lorton v. Jones 1 3 0 Nev. Adv.23 Op. 8, 322 P.3d 1051, 1057-58 (2014), reh'g denied (Mar. 5, 2014), Article 15, Section24 3(2) precludes reelection to the local governing body as a whole when a member has25 served on that body for 12 years or more in any capacity.262 72 8

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t is undisputed that the Mayor of Henderson is a member of the Henderson City2 Council, which holds the legislative power of the City. 8 Section 2.010 of the3 Henderson City Charter states in relevant part:4 . The legislative _power of the City is vested in a ity ouncil5

onsistinff offour Council Members and the Ma yor.. . .6 . All Council Members including the Mayor must be voted uponby the registered voters of the City at large and, except as otherwise7 rovided in section 5.020, shall serve for terms of 4 years.8 [Emphasis Added]. Section 3.010 of the Henderson City Charter further holds, The9 Mayor shall: (a) Serve as a member of the ity ouncil and preside over its

10 meetings. [Emphasis Added].Mr. Hafen was first elected to the Henderson City Council in June of 1987, and

12 has been a member thereof, ever since. 9 Accordingly, Mr. Hafen has served the city of3 Henderson for more than twenty-five (25) years- seventeen (17) of them after the term

14 limits amendment went into effect. 1 0 If a person has served in an office on a local5 governing body or will have served in an office on that local governing body for

16 twelve (12) years or more by the time his current term expires, that person may not be17 re-elected thereto. [Emphasis Added]. Accordingly, Mr. Hafen is not qualified, and18 was not qualified, when he was elected in 2013 to continue to hold any seat on the19 Henderson C ity Council.2 0212 2 8 nLorton v. Jones, this Court referenced the Henderson City Charter stating, See,2 3 e.g., Henderson City Charter, Art. II, 2.010(1) (providing that the Henderson city2 4 Nev. Adv. Op. 8, 32 2 P.3d 1 051, 1 053 (201 4), reh g denied (Mar. 5, 201 4).

council is made up of four council members and the mayor). Lorton v. Jones, 1302 5 9 True and correct copies of Mr. Hafen's biography as published by the City ofHenderson's website from both 2008 and 2014 are attached to Petitioner's Appendix at6 Exhibit 6, PA000032- PA000034.2 7 1 0 See also, true and correct copies of the Election Returns for the City of Henderson2 8 from 1995-2013, attached to Petitioner's Appendix at Exhibit 7, PA000035-PA000043.

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The very purpose of the term limits amendment, as presented to the voters by2 ballot initiative twice - was to stop career politicians since no one will be able to3 hold office for several terms. . . . local governing body members would have the4 opportunity to focus on the issues instead of reelection. [Emphasis Added].5 he term limit initiative passed overwhelmingly in 1994 and again in 1996.6 Accordingly, on November 27, 1996, the twelve-year term limitation went into effect7 and became law. The people of this State have spoken. Yet, despite the clear voice o8 the people, Mr. Hafen has made it no secret that he has proudly become exactly wha9 Article 15, Section 3(2) was enacted to prevent: a career politician.

1 y his very own admission Mr. Hafen publically represents,1 1 t s been an honor to serve the citizens of Hend erson for nearlythree decades and I'm as excited about continuing to serve as12 our M ayor . . .13 am fortunate enough to b e [in the] position to concentrate onpu blic service full-time and it s a uniq ue and fulfilling position to14 e in.15 [Emphasis Added]. 1 2 Further, Mr. Hafen was featured as a keynote speaker at the16 2013 Banner Conference, a seminar type conference to Improve your professional17 relationships and grow your business. 1 3 The program advertisement claims The18 program will be keynoted by Mayor Andy Hafen of Henderson, NV (sister city to Las19 Vegas). Mayor Hafen will share insights on how he's built a successful personal

brand, how he leveraged his name in politics to a successful year career as CityCouncilman and ultimately becoming a popular mayor. [Emphasis Added]. Id

Petitioner understands and respects that this Court only exercises its discretionto grant extraordinary Writ relief for very selective matters, and circumstances of

1 1 See, Exhibit 5, attached to Petitioner's Appendix at PA000028- PA000031.1 2 A true and correct copy of Mr. Hafen's biography published on his Re-ElectMayor Andy Hafen" Website is attached to Petitioner's Appendix at Exhibit "8."13 A true and correct copy of an advertisement for the Banner Conference 2013 isattached to Petitioner's Appendix at Exhibit "9," at PA000050.

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absolute necessity. Petitioner does not move this Court for such relief lightly. In fact,2 Petitioner pursued every possible alternative avenu e prior to seeking the instant relief.3 RS 293C.185(2) requires Mr. Hafen to sign a Declaration of Candidacy4 whereby h e declares under penalty of perjury that he w ill:5 . . qualify for the office if elected thereto, including, but not limitedto, complying with any limitation prescribed by the onstitution6 nd laws of this State concerning the num ber of years or terms forwhich a person m ay hold the office7

first requested that Mr. Hafen voluntarily resign from his position. In part, based upon10 his declaration, under penalty of perjury, to comply with the term limit provisions of

the Nevada Constitution. 4 However, Mr. Hafen refused to do so. 5 It can be argue12 that failing to resign after explicitly agreeing, under penalty of perjury, to comply with1 3 any term limit provisions set forth in the Nevada Constitution, which obviously14 includes Article 15, Section 3 (2), constitutes an intentional disregard of the law.15 n addition, Mr. Hafen's refusal to voluntarily resign from his office appears1 6 even more disingenuous in light of the fact that the first year he ran for the seat o1 7 Mayor in 2009, he acknowledged that he was still running for a Henderson City18 Council position. His admission is contained within the filing of his Nevada Financial19 Disclosure Statement with the Secretary of State on February 18, 2009. 6 he2 0 pertinent portion thereof reads, Section A (Public Office): List all public offices for21 which this financial disclosure statement is required and check each box accordingly22 i.e. annual, candidate or appointment filing. NRS 281A.620.1(g)." Id In response, M r232 4252 62 72 8

14 True and correct copies of Petitioner's requests to Mr. Hafen to voluntarily resignfrom office are attached Petitioner's Appendix at Exhibit 1 0 , PA0 0 0 0 55- PA0 0 0 0 69 .15 A true and correct copy of Mr. Hafen's Response is attached to Petitioner'sAppendix at Exhibit "11," PA000070- PA000072.16 A true and correct copy of Mr. Hafen's 2009 Financial Disclosure Statement isattached to Petitioner's Appendix at Exhibit "12," at PA000074.

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[Emphasis Added]. In an attempt to avoid the need for judicial intervention, Petitioner

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Hafen answers that the Title of the Public Office is Henderson City Councilman72 and checksthe box indicating that heis a Candidate. [E mphasis Added]. Id He3 didnot indicateor imply that he believedor understoodthe position of Mayor to be a4 separate office nor a different governing body apart from the CityCoun cil.5 t that point in time, Mr. Hafenwas a current Council memberwho was electedto that term in 2007.Yet, hewasalso runningthat year as a candidate for the seat of

7 Mayor, which he wasultimately elected to, later that year. This demonstrates that even8 prior to this Court s recent decision in Lorton v. Jones Mr. Hafen was very much9 aware of, and formally acknowledged, thefact that theseat of Mayor is simply another

1 seat on the HendersonCity Council. /dssuch, Mr. Hafen should be estopped from arguing that it would be

1 2 "inequitable" to remove him,because prior to this Court's decision in Lorton v. Jones1 3 he could not have knownthat the seat of Mayor was just another seat at the same City1 4 Council table. By his own filing admission, which hesigned declaring the information1 5 therein was "accurate andcorrect," hewas well aware of this fact, more thanfive (5)1 6 yearsprior.17 n addition any argumen t that this matter should have beenraised as a challenge1 8 to Mr. Hafen s candidacy when hewas running for the office is of no effect.Just19 because someone lacksthe resources to challenge unlawful conduct, does not2 somehow makethe conduct lawful. What if no one hasthe resources or abilityto21 formallychallenge Mr. Hafen at the next election? Should hedecide to run for another22 seat on the Henderson City Council and winelection again, is that legal or acceptable?23 Does the fact thathe was not challenged asa candidate mean that hegets to continue24 to holdpublic officein direct violation of the Nevada Constitution?25 e all make choices.And we are also responsible for the consequencesof the26 choices we make. If aperson make the choice toregularly drive faster than the speed27 limit,they might get away with it for several years before finallybeing caught.28 However,whenlaw enforcement does eventually catch them, theyare still punished

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for violating the law- despite the fact that they had gotten away with it for several2 years prior. Just because Mr. Hafen has been able to fly under the radar so to speak,3 getting away with ignoring the will of the people for the past several years does not4 mean that he should be permitted to continue to do so. We cannot allow lawmakers to5 be lawbreakers.6 III CONCLUSION7 nce again, this is not a baseless request on grounds of some obscure

technicality. This is a situation where we have an elected official who, at the end o9 his current term, will have served literally thirty 30) years on the Henderson C ity0 Council more than twen 20 of them after the 1996 term limits amendmen

was enacted. Not only did Mr. Hafen effectively acknowledge and admit that he was2 aware the seat of Mayor is just simply another seat on the Henderson City Council - as3 evidenced by his 2009 Financial Disclosure Statement. He has publically represented -4 and bo sted about the fact that he has devoted his life to becoming a career5 politician with the City of Hend erson.

16 o allow Mr. Hafen to get away with such conduct, in direct defiance of the7 express intent of Article 15, Section 3(2) and allow him to continue to his sea8 representing the city of Henderson is a gross violation of the Nevada Constitution and9 a slap in the face to the voters of this state, who voted overw helmingly in favor of term

2 0 limits. Twice.2 1 e cannot allow lawm akers to be lawb reakers.2 2 ased on the foregoing and any ordered arguments, Petitioner respectfully23 requests that this Court grant Petitioner leave to proceed with this matter, as a quo2 4 warranto action to remove Mr. Hafen from office; or in the alternative grant the Writ25 relief requested herein directing Attorney General Cortez Mast and/or Secretary of2 6 State Miller (as the Chief Elections Officer), to take action and mandate that Arthur2 7 Andy Hafen be immediately removed from office on the legislative body of the city2 8 of Henderson, Nevada.

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Mr. Hafenhas exceededthe twelve-year term limit restriction set forth in Article15, Section 3 2) of the Nevada Constitution and because he was not qualified for re-election therein he is thus not qu lifiedto continue to unlawfully hold such seat.

DATEDthis 2 day ofMay, 2014.

EPHWNIE RICE ESQ.HARDY LAW GROUPAttorney fo r Rick W orkmanRelator/ P etitioner

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IV VERIFICATIONUnder penalties of perjury the undersigned declares that he is the

Relator/Petitioner in the foregoing Request for Leave to File a W rit of Quo W arrantor Alternatively Petition for Writ of Mandamus or Other Extraordinary Relief anthat I know the contents thereof; that the pleading is brought in good faith and that thmatters set forth therein are true of my own knowledge except as to those mattersstated on inform ation and belief and that as to such matters believe them to be true.

Executed this ? 5 day of May 2014.

4 { RICK lfORK M AN Relator/ Petitioner

I23456789

101 1121 3141516171 819202122232425262728

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V. CERTIFICATE OF SERVICE2 ursuant to NRCP 5 b), I hereby certify that I am an employee of Hardy Law

Group and that on this day, I caused to be delivered by U. S. Mail, postage pre-paid, a4 true and correct copy of the foregoing Request for Leave to File a W rit of Qu o5 Warranto or Alternatively. Petition for Writ of Mandamus or Other6 xtraordinary Relief to the individual s) listed below at the following address s):7 The Honorable Catherine Cortez Masto8 100 N. Carson StreetAttorney General of the State of NevadaCarson City, Nevada 897 019 Fax: 775) 684-1108

10 The Honorable Ross MillerNevada Secretary of State11 101 North Carson Street, Suite 3Carson City, NV 89701-371412 Todd L. B ice, Esq.13 Pisanelli Bice3883 How ard Hughes Parkway, Suite 80014 Las Vegas, Nevada 8916915161718 ATED this6 c4\_ Day of May, 2014.192 0212 22 32 42 52 62 72 8

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