Electronically Filed

Jul 18 2014 03:25 p.m.

Tracie K. Lindeman
Clerk of Supreme Court
Docket 65716 Document 2014-23440
TABLE OF CONTENTS
TABLE OF CONTENTS .i
TABLE OF AUTHORITIES
I. INTRODUCTION .1
II. INTERESTS OF THE CITY OF HENDERSON 2
III. SUMMARY OF ARGUMENT .3
IV. FACTS 5
V. ARGUMENT 6
A. Workman is Not a "Competing Office Holder." .6
B. Workman's Petition for Writ Relief Seeks to Eviscerate Nevada's Robust
Body of Law Governing Elections and Would Disrupt the Efficient
Governance of the City 9
C. Workman's Petition for Mandamus Relief Invites this Court to Bend, if
Not Break, the Boundaries Among the Co-Equal Branches of
Government .12
VI. CONCLUSION 16
VII. CERTIFICATE OF COMPLIANCE 18
VIII. CERTIFICATE OF SERVICE 19
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TABLE OF AUTHORITIES
Cases
Banks v. Zippert, 470 So. 2d 1147, 1149 (Ala. 1985) 12
City of Sparks v. Sparks Mun. Court, 302 P.3d 1118, 1128, 129 Nev. Adv. Rep. 38
(Nev. 2013) 14,15
Child v. Lomax, 124 Nev. 600, 606, 188 P.3d 1103, 1107 (2008) passim
Ex. Rel. Penrose v. Greathouse, 48 Nev. 419, 422, 233 P. 527, 528 (1925) .12
Galloway v. Truesdell, 83 Nev. 13, 18, 422 P.2d 237, 241(1967) 13
Heller v. Legislature of Nev., 120 Nev. 456, 464, 93 P.3d 746, 751 (2004)....passim
In re Moore, 65 Nev. 393, 397, 197 P.2d 858, 860 (1948) 7
In re Board of School Directors of Carroll Twp., 407 Pa. 156, 180 A.2d 16, 17 (Pa.
1962) 10
Ingersoll v. Lamb, 75 Nev. 1, 4, 333 P.2d 982, 984 (1959) 7, 8
Johnson v. Collins, 11 Ariz. App. 327, 464 P.2d 647, 651
(Ariz. Ct. App. 1970) 12
Lorton v. Jones, 322 P.3d 1051, 1054, 130 Nev. Adv. Rep. 8
(Nev. 2014) .passim
Lueck v. Teuton, 125 Nev. 674, 679, 219 P.3d 895, 898 (2009) .passim
Scheibel v. Pavlak, 282 N.W.2d 843, 847 (Minn. 1979) 14
State v. Lutz, 226 Ala. 497, 147 So. 429, 432 (Ala. 1933) .12
State v. Triplett, 134 Ohio St. 480, 17 N.E.2d 729, 731 (Ohio 1938) 12
State v. Wells, 8 Nev. 105, 109 (1872) 12
11
State Ex Rel. Warder v. Gainer, 153 W. Va. 35, 167 S.E.2d 290, 296
(W. Va. 1969) 12
Territory by Attorney Gen. v. Morita, 41 Haw. 1, 25 (Haw. 1955) .12
Nevada Constitution Provisions
Nev. Const. art 2, 9 7, 9
Nev. Const. art 3, 1 13
Nev. Const. art 4, 6 13
Nev. Const. art 15, 3 5
Statutes
NRS 35 et seq. .6, 7, 9
NRS 266 et seq. 4
NRS 293 et seq. 3
NRS 293.182 .13
NRS 293.407 .13
NRS293.410 7,9
NRS 293.410(2)(b) .7
NRS 293.410(2)(c) .7
NRS 293.417. .7
NRS 293C et seq. 3
NRS 293C.175 7
NRS 293C.175(4) .1,3
1 1 1
NRS 293C.180(1) .7
NRS 293C.186 9, 13
NRS 293C.186(4) 9, 10
NRS 293C.186(6) 10
NRS 293C.370 7
NRS 306 et seq .3, 9, 10
NRS 306.015(6) 10
Henderson City Charter Provisions
Henderson City Charter Sec. 1.070 .3, 6, 7, 8
Henderson City Charter Sec. 1.080 .6, 8, 16
Henderson City Charter Sec. 2.030 16
Henderson City Charter Sec. 2.060 16
Secondary Sources
1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law 3.12, at
394 (3d ed. 1999) 13
Nevada Rules of Appellate Procedure
NRAP 29(a)
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1 BRIEF OF AMICUS CURIAE CITY OF HENDERSON IN SUPPORT OF
RESPONDENTS AND REAL PARTY IN INTEREST'
I. INTRODUCTION
Petitioner Rick Workman ("Workman") was one of the seven candidates who
ran for the office of Mayor of the City Henderson (the "City" or "Henderson") in a
primary election held on April 2, 2013. Prior to the election, none of the
candidatesincluding Workmanfiled any challenge concerning the qualifications
of Real Party in Interest Andy "Arthur" Hafen ("Hafen" or "Mayor Hafen").
When the votes were counted following the election, Hafen received 5 4.8 4%
of the votes cast and pursuant to NRS 293C.175 (4) 2 was declared elected to the
office of Mayor of Henderson. Workman only received 37.18 % of the votes cast,
and like the five other candidates for Mayor, did not receive a sufficient percentage
of the votes required to be declared elected to the office of Mayor. At no time
following Hafen's election, until now, did any candidate file a post-election contest
or challenge, of any kind, concerning his qualification for office.
Now, more than a year after Mayor Hafen's election and assumption of
office, Workman asks this Court for unprecedented relief. Presumably, by seeking
leave to file a writ of quo warranto and declaring himself a "competing office
holder", which he is not, Workman is asking (or will ask) this Court not only to
1
The City of Henderson files its amicus brief without leave of the parties or
the Court pursuant to NRAP 29(a).
2 NRS 293C.175 (4) provides:
If, in a primary city election held in a city of population category one
or two, one candidate receives more than a majority of votes cast in
that election for the office for which he or she is a candidate, the
candidate must be declared elected to the office and the candidate's
name must not be placed on the ballot for the general city election. If,
in the primary city election, no candidate receives a majority of votes
cast in that election for the office for which he or she is a candidate,
the names of the two candidates receiving the highest number of votes
must be placed on the ballot for the general city election.
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I remove Hafen (who won a more than a majority of the votes cast in the election),
2 but also to appoint Workman (who did not win more than a majority of the votes
3 cast in the election) as the Mayor of Henderson. Alternatively, if the Court does not
4 agree that Workman is entitled to the office of Mayor of Henderson through a quo
5 warranto action, he appears to be asking this Court to mandate that Mayor Hafen
6 immediately be removed from office, and install Workman or create a vacancy.
7 None of these options are in the interest of the City or its residents.
8 Granting Workman's Petition will not only work a significant hardship on the
9 City in this case, but it will open the door for future, unpredictable disruptions of
10 the City's government and operations. Granting Workman's Petition would
11 endorse the following untenable precedents: (1) a person who has received less
12 than the majority of the votes cast in a primary election for an office may obtain the
13 office anyway; and (2) any person, at any time, may challenge the results of an
14 election in court without any regard for, or attempted compliance with, the statutory
15 and constitutional provisions governing challenges of candidates and elected
16 officials. Such precedents would jeopardize the sanctity of the election process and
17 are inconsistent with the principles of effective and reliable government.
18 Thus, this Court should deny Workman's request for leave to file a writ of
19 quo warrant and his petition for a writ of mandamus or other extraordinary relief.
20 However, if this Court is inclined to grant any writ relief to Workman, it should
21 limit that relief to the removal of Hafen as the Mayor of the City and allow the City,
22 to fill the vacancy pursuant to the provisions of the Henderson City Charter.
23 II. INTERESTS OF THE CITY OF HENDERSON
24 The City has multiple interests in Workman's request for leave and writ
25 petition. First, the City is interested in the efficient operation of the City
26 government. A vacancy created in the office of Mayor would be a significant
27 hardship on the City, requiring the appointment or special election of a new Mayor
28 and potentially the appointment or special election of a new council person. See
2
1 Declaration of Sabrina Mercadante, City Clerk for the City of Henderson, attached
2 hereto as Ex. A., at 4 1111. A special election would be a significant cost to the City. 3
3

Second, the City has significant responsibility to properly enforce procedures

4 challenging the qualifications of candidates. The City has an interest in making
5 sure those procedures are followed and in exercising its statutory discretion
6 regarding such challenges. The City also has an interest in relying on the statutory
7 and constitutional procedures that govern challenges of candidate qualifications,
8 election contests, and removing candidates, including: the provisions set forth in
9 NRS Chapters 293 and 293 C, valid quo warranto proceedings initiated by rightful
10 office holders, and removal of public officials as set forth in NRS 3 06 and the
11 Constitution of the State of Nevada.
12

Further, the City has an interest in supporting the will of its residents who
13 participated in the primary election, who in this case cast more than a majority of
14 their votes for Mayor Hafen and, as an obvious corollary, did not cast more than a
15 majority of their votes for Workman.
16

Finally, the City has an interest in seeing that its laws, as set forth in its City
17 Charter, are followed. For example, if the Court is inclined to create a vacancy as a
18 result of Workman's request for leave or writ petition, the City has an interest in
19 seeing that the vacancy is filled according to Section 1.070 of the Henderson City
20 Charter, which outlines the procedures for filling vacancies in elective office.
21

III. SUMMARY OF ARGUMENT

22

The City's support of Respondents and Mayor Hafen is threefold. First,

23 Workman claims to be a "competing office holder." Presumably, this claim relates
24 to the requirements for bringing a quo warranto action and suggests to this Court
25 that Workman is somehow entitled to the office of Mayor of Henderson. There are
26 many ways under Nevada law that a person may be entitled to hold the office of the
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The estimated cost to hold a special election would be approximately
28 $123 ,000.00. See Ex. A at 4 4 10.
3
1 Mayor of Henderson, but Workman has met none of them. Thus, no matter how
2 Workman describes himself in his brief, he is not entitled to the office of Mayor of
3 Henderson.
4 Second, the City must be able to rely on the state laws, constitutional
5 provisions, and the provisions set forth in the Henderson City Charter, that govern
6 candidates, elections, and the removal of elected officials. There are provisions in
7 both state law and under the Henderson City Charter (enacted by the legislature
8 pursuant to NRS 266) that allow candidates to challenge the qualifications of
9 candidates pre-election. There are also pre-election writs available to keep
10 candidates off the ballot. There are statutes governing candidate contests of
11 election results. Contrary to Workman's contention that he lacked the resources to
12 do so, bringing pre-election challenges can be cost and resource free to the
13 challenger, so long as they are not frivolous. There are constitutional provisions
14 and statutes authorizing quo warrant writs. There are constitutional provisions and
15 statutes providing for recall of public officers. However, there is no provision
16 granting an individual the right to file a post-election writ (other than quo warranto)
17 with this Court more than a year after the deadline for contesting an election has
18 passed.
19 Granting Workman's writ petition at this point would set a dangerous
20 precedent that would all but eviscerate the substantial law governing challenges to
21 candidate qualifications, the procedures for contesting elections, and the processes
22 for removing public officers. Allowing former competing candidates to bypass
23 those procedures would subject the City to potentially endless challenges of its
24 elected officials by way of writ petition.
25 Finally, while there is no question that this Court has jurisdiction to
26 determine a quo warranto action, Workman's request for writ relief asks this Court
27 to exercise the power vested in the City's legislative bodya division of the state
28 legislative body to determine the qualifications and removal of its members. This
4
Candidate Percent of Vote
Hafen, Arthur A. 'Andy' 54.84%
Hamilton, Eddie 'In Liberty' 2.22%
Robinson, Kyler 1.06%
Sakura, Jerry 1.37%
Scala, Joe 2.62%
Simmons, Clayton .70%
Workman, Rick 37.18%
See Certified Copy of Election Results from the 2013 Municipal Primary Election,
attached hereto as Ex. B.
Prior to the election, no candidate filed a written challenge, of any kind, to
any of the candidates. See Ex. B at il 8. Specifically, no candidate filed a written
challenge with the City Clerk concerning Mayor Hafen's purported lack of
qualification to run for mayor as a result of an alleged violation of Nevada's term
limits as set forth in Article 15, Section 3 of the Constitution of the State of Nevada.
See id. at 118. No candidate brought any other pre-election contest in district court
and no candidate sought a writ to keep Mayor Hafen off the ballot. Workman,
however, did request an ethics opinion from the City Attorney concerning whether
he could maintain his employment with the City if he were elected Mayor, which
1 request is inconsistent with this Court's prior recognition and enforcement of the
2 separation of powers among the co-equal branches of Nevada's government.
3 However, in the event this Court creates a vacancy by issuing a writ ordering Mayor
4 Hafen's removal from office, this Court should allow the vacancy to be filled as set
5 forth in the Henderson City Charter.
6 IV. FACTS
7 The facts of this case are well established in the briefs filed by the parties.
8 However, the only facts essential to the City's brief are as follows. A primary
9 election for the office of the Mayor of Henderson was held On April 2, 2013. The
10 results of that election are as follows:
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1 would violate Sec. 1.080 of the Henderson City Charter. 4 See Correspondence from
Henderson City Attorney responding to Workman's inquiry attached hereto as Ex.
C. 5 Workman made no inquiry concerning any ethical violation that might have
resulted from Hafen's candidacy.
Following the election on April 2, 2013 , until the filing of Workman's
Request for Leave to File a Writ of Quo Warranto or Alternatively, Petition for Writ
of Mandamus or Other Extraordinary Relief on May 21, 2014, no candidate filed an
election contest in district court or attempted to initiate a recall.
V. ARGUMENT
A. Workman is Not a "Competing Office Holder."
Workman has styled himself as a "competing office holder." See Pet. Brief
at p. 4, lns. 12-13 ; p. 9, ln. 24. The term "competing office holder" is not used in
the statutory provision governing quo warranto actions and does not appear to have
been used in any opinion by this Court concerning a quo warrant action. See NRS
3 5 et seq. In fact, an exhaustive search of state and federal case law conducted in
preparing this brief revealed no opinions that used the term "competing office
holder."
Workman appears to use the term "competing office holder" in an effort to
satisfy the well settled limitation of quo warranto actions to persons "claiming to be
entitled to a public office." See NRS 3 5 ; see also Lueck v. Teuton, 125 Nev. 674,
4

Sec. 1.080(1)(a) of the Henderson City Charter states:

1. The Mayor and Council Members shall not:
(a) Hold any other elective office with the State of Nevada or any
of its political subdivisions or any other employment with the
City, except as provided by law, as a member of a board or
commission which is ancillary to the office which he holds or
as a member of the board of trustees of a county school district.
5
Workman made this opinion public through numerous press articles. See for
example,http:/ /www.reviewjoumal.cominews/elections/former-henderson-mayoral-
candidate-protests-bullying-tactics.
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1 679, 219 P.3d 895, 898 (2009) (noting that NRS 35 does not permit a person with
2 only a general interest in quo wanranto relief to pursue such a remedy, absent
3 participation from the attorney general and leave of the court).
4 Despite Workman's attempt to invent a new recognizable term that would
5 supply an interest sufficient for quo warranto relief, Workman is not an office
6 holder, nor is he entitled to any office. Under the laws of Nevada and pursuant to
7 the Henderson City Charter, there are many ways that a person may be entitled to
8 hold the office of Mayorhe or she can:
1. Be the only declared candidate for the office after the filing deadline has
passed (see NRS 293C.180(1));
2. Receive more than a majority of the votes in a primary election (see NRS
293C.175);
3. Win a general election (see id.);
4. Upon contest, be found by a district court to have received the greatest
number of legal votes6 (see NRS 293.417);
5. Receive the most votes in a recall election (see Nev. Const. art 2, 9);
6. Be appointed to a vacancy in the office by a majority of the City Council
(see Henderson City Charter 1.070); or
6
NRS 293.410, which sets forth grounds for election contests refers to "illegal
votes" as opposed to legal votes. Illegal votes are votes cast by illegal voters, not
votes cast for an unqualified or otherwise ineligible candidate. In re Moore, 65
Nev. 393, 397, 197 P.2d 858, 860 (1948). Nevada law provides that votes may be
cast and counted for unqualified candidates, including even a deceased candidate.
See NRS 293C.370. Further, ineligibility for office at the time of election and the
casting of illegal votes are two separate grounds for post-election challenge, after
the votes have been initially counted. Compare NRS 293.410(2)(b) with NRS
293.410(2)(c). Thus, votes cast for an unqualified or ineligible candidates are legal
votes for the purpose of determining which candidate received the greatest number
of legal votes. Ingersoll v. Lamb, 75 Nev. 1, 4, 333 P.2d 982, 984 (1959) ("[V]otes
cast for a deceased, disqualified, or ineligible person are not to be treated as void or
thrown away, but are to be counted in determining the result of the election as
regards the other candidates.").
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1 7. Win a special election held to fill a vacancy in the office (see id.).

2 There is no provision under Nevada law that entitles a party who received the
3 second most votes cast in a primary (without later winning a general election) to the
4 office of Mayor. The fact that Workman finished with 37.1 8% of the votes cast
5 does not give him any greater legal claim to the office of Mayor than Eddie "In
6 Liberty" Hamilton, Kyler Robinson, Jerry Sakura, Joe Scala, or Clayton Simmons,
7 who all also finished with less than a majority of the vote in the primary election
8 held on April 2, 201 3, and who all also fail to satisfy any of the other legal
9 provisions that might entitle them to the office of Mayor of Henderson. See Ex. A.
1 0 Thus, Workman's claim that he is a competing office holder is meritless. 7

1 1 The Respondents and the Mayor have sufficiently set out the "American
1 2 Rule" (under which an election runner-up has no claim to office) in their briefs in
1 3 reference to Workman's standing. See Resp's. Brief at pp.8-1 0; Real Party in
1 4 Interest's Brief at pp. 8-1 1 . However, the holding in Ingersoll v. Lamb, 75 Nev. 1 ,
1 5 4, 333 P.2d 982, 984 (1 959) explaining the American Rule, is important when
1 6 considering any request by Workman that this Court install him as the Mayor of
1 7 Henderson. Aparty cannot by mandamus obtain an office when he has finished in
1 8 second placenot even when he receives 45% of the vote and his opponent is
1 9 deceased. Ingersoll, 75 Nev. at 6, 333 P.2d at 9848. If Ingersoll could not obtain
20 his desired office by mandamus, then Workman should not be able to do so here by
21 obtaining only 37.1 8%of the vote in a seven person primary.
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Workman's claim, even if it were true, would result in a violation of Sec.
1 .080 of the Henderson City Charter.
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Ingersoll received 1 ,1 61 votes, his deceased opponent, Lester V. Smith
received 1 ,489.
8
B. Workman's Petition for Writ Relief Seeks to Eviscerate Nevada's
Robust Body of Law Governing Elections and Would Disrupt the
Efficient Governance of the City.
3
4 In Nevada, candidates and citizens have ample means to challenge the
5 qualifications of candidates, contest election results, unseat officials who have
6 usurped an office from another, and recall them from office. Candidates and/or
7 others with standing, as appropriate may:
8 1. Submit written challenges to a candidate's qualifications prior to the
9 election (see NRS 293C.186);
10 2. Seek a pre-election writ to prohibit a candidate from appearing on the
11 ballot (see Child v. Lomax, 124 Nev. 600, 606, 188 P.3d 1103, 1107
12 (2008); Lorton v. Jones, 322 P.3d 1051, 1054, 130 Nev. Adv. Rep. 8
13 (Nev. 2014);
14 3. File an election contest in district court (see NRS 293.410 setting forth
15 multiple grounds for challenging the results of an election including
16 eligibility of elected official);
17 4. Seek to, and if granted leave, file a quo warrant action (see NRS 35;
18 Lueck, 125 Nev. at 679, 219 P.3d at 898); and/or
19 5. Initiate a recall (see Nev. Const. Art. 2, 9; see also NRS 306 et seq.).
20 Contrary to Workman's contention, many of these remedies are not resource
21 prohibitive. See Pet. Brief at p. 16, Ins. 17-20. For instance, as long as a pre-
22 election challenge to a candidate's qualifications is not frivolous, there is no cost to
23 the challenger and there is limited use of the challenger's resources. See NRS
24 293C.186. Under the provision that governs challenges to the qualifications of
25 candidates for city office, all a challenger needs to do is prepare a written challenge
26 to the qualifications of a candidate and file it with the City Clerk. See NRS
27 293C.186(4). The City Attorney then reviews the challenge, and if he determines
28 there is probable cause to support the challenge, brings an action to determine it in
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1 an appropriate court. See id. The challenger is not a party to the actionthe City
2 Attorney does all the work, thus a pre-election challenger spends limited funds and
3 resources to challenge the qualifications of a candidate pre-election. See id. As
4 such, a challenger is only exposed to costs if a court finds that the challenge was
5 frivolous. See NRS 293C.186(6).
6 Similarly, any citizen may initiate a recall with limited expenditure of funds.
7 There are no filing costs associated with filing a petition for recall. See NRS 306 et
8 seq. In fact, the statutory provision governing recall provides that a person who
9 brings or signs a recall petition is immune from civil liability, thus there is zero risk
10 of incurring legal fees or associated court costs. NRS 306.015(6).
11 This Court should not cure Workman's failure to exhaust, or even attempt,
12 any of the many available pre or post-election remedies (other than quo warranto)
13 with mandamus relief. This Court has made clear that quo warrant is the exclusive
14 remedy for challenging a person's right to hold office. Heller v. Legislature of Nev.,
15 120 Nev. 456, 464, 93 P.3d 746, 751(2004) (emphasis added). Further, this Court
16 has held that mandamus is ill-suited for post-election challenges to a candidate's
17 right to hold office. Id.; see also Child, 124 Nev. at 606, 188 P.3d at 1107
18 (considering pre-election request for mandamus to keep candidate off the ballot);
19 Lorton, 322 P.3d at 1054 (same). In Heller this Court stressed the importance of quo
20 warrant as the exclusive remedy for challenging a seated public official:
21 Quo warrant is the Gibraltar of stability in government tenure. Once
22
a person is duly elected or duly appointed to public office, the
continuity of his services may not be interrupted and the uniform
23 working of the governmental machinery disorganized or disturbed by
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any proceeding less than a formal challenge to the office by that
action which is now venerable with age, reinforced by countless
25 precedent, and proved to be protective of all parties involved in a
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given controversy, namely, quo warrant.
27 Heller, 120 Nev. at 464, 93 P.3d at 751 (quoting In re Board of School Directors of
28 Carroll Twp., 407 Pa. 156, 180 A.2d 16, 17 (Pa. 1962)).
10
1 Lorton is not the panacea Workman hopes it to be. Lorton does nothing to
2 alter the well-established framework this Court has recognized concerning
3 candidate challenges, election contests, and the other remedies for the removal of
4 elected officials. Lorton was a pre-election writ to determine the qualification of
5 certain candidates to run for office. Lorton, 322 P.3d at 1053. The Court made
6 clear that Lorton applied to pre-election challenges when it limited the opinion to
7 helping "future potential candidates" and "challengers" understand the effect of
8 term limits. Id. Had this Court intended Lorton to apply beyond the traditional pre-
9 election writ and statutory post-election contest context, it could have stated so, but
10 it did not. Id.

1 1 Prior to Lorton, this Court similarly applied the term limits provision in the
12 pre-election context. See Child, 124 Nev. at 605-06, 188 P.3d at 1107. This Court
13 emphasized its role in doing so as important because it would avoid impairing voter
14 input. Id. Further, this Court specifically acknowledged the difference in available
15 pre-election challenge and post-election contest remedies. Id. In detailing the
16 post-election remedies, this Court made no mention of writ relief. See id. at n. 15.
17 Lorton makes clear that Mayor Hafen may not run again for the office of Mayor,
18 but it does nothing to advance the idea that he should be removed from office now
19 because of his lack of qualification for future office. Lorton, 322 P.3d at 1053.

20 Nevada law provides a way for its people to police candidates and elected
21 officials at every stage of the political and governing processesfrom candidacy
22 through the end of the candidate's term in office. The City, its citizens, and for the
23 sake of effective government, its public officers, must be able to rely on these
24 provisions as the exclusive remedies for challenging candidates, contesting
25 elections, and unseating elected officials.

26 The failure to limit challenges to the methods currently set forth under
27 Nevada law would wreak havoc on the operation of government, exposing the City,
28 its citizens, and its public officials to the constant threat of vacancies in officea
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1 significant disruption to the administration of public business. Vacancies and other
2 disruptions of government are not trivial: "the law abhors vacancies in public
3 office" for any period of time. See State v. Triplett, 134 Ohio St. 480, 17 N.E.2d
4 729, 731 (Ohio 1938); State v. Lutz, 226 Ala. 497, 147 So. 429, 432 (Ala. 1933);
5 Johnson v. Collins, 11 Ariz. App. 327, 464 P.2d 647, 65 1 (Ariz. Ct. App. 1970);
6 State Ex ReL Warder v. Gainer, 15 3 W. Va. 35 , 167 S.E.2d 290, 296 (W. Va.
7 1969); Territory by Attorney Gen. v. Morita, 41 Haw. 1, 25 (Haw. 195 5 )
8 ("Vacancies in public office are contrary to the proper and efficient administration
9 of business."); Ex. Rel. Penrose v. Greathouse, 48 Nev. 419, 422, 233 P. 5 27, 5 28
10 (1925 ) (recognizing Nevada's legislative policy "to fill the vacancy for the office of
11 district judge by election as soon as practicable after the vacancy occurs"); State v.
12 Wells, 8 Nev. 105 , 109 (1872) (noting that a district attorney appointed to fill a
13 vacancy properly served "until the qualification of a successor . . . because the
14 presence of such an officer is necessary to the proper conduct of public business").
15 This Court should not grant Workman relief that will usher in endless
16 challenges to public officials to the detriment of the operation of the government of
17 the City. As a result, if this Court denies Workman's request for leave to file an
18 action quo warranto, it should not resort to mandamus to provide him relief.
19
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22 Workman asks for the unprecedentedthe removal of a public official who
23 received more than a majority of the votes cast in a primary election and the
24 appointment of a candidate who received significantly less than the majority of the
25 votes in that same primary election. "It is a fundamental principle of popular
26 government that the legally expressed will of the majority must prevail in
27 elections." Banks v. Zippert, 470 So. 2d 1147, 1149 (Ala. 1985 ). Nevada's judicial
28 branch has significant responsibility in ensuring the integrity of elections by
C. Workman's Petition for Mandamus Relief Invites this Court to Bend.,
if Not Break, the Boundaries Among the Co-Equal Branches of
Government.
12
1 presiding over challenges to candidate qualifications before they are placed on the
2 ballot. See NRS 293C.186; NRS 293.182; Child, 124 Nev. at 606, 188 P.3d at 1107
3 (considering pre-election request for mandamus to keep candidate off the ballot);
4 Lorton, 322 P.3d at 1054. The judicial branch is also the arbiter of statutory post-
5 election contests for all public officials, which specifically exclude the members of
6 the State Legislature. NRS 293.407; Hdler, 120 Nev. at 466, 93 P.3d at 753.
7 However, this Court has recognized that its powers to remove public officials
8 from office are limited by the separation of powers doctrine and the express
9 provisions of the Constitution of the State of Nevada, namely quo warranto. Heller,
10 120 Nev. at 464,93 P.3d at 751.
11 Article 3, Section 1(1) of the Constitution of the State of Nevada states:
12 The powers of the Government of the State of Nevada shall be divided
13
into three separate departments, the Legislative, the Executive and the
Judicial; and no persons charged with the exercise of powers properly
14 belonging to one of these departments shall exercise any functions,
15
appertaining to either of the others, except in the cases expressly
directed or permitted in this constitution.
16
17 Emphasizing the importance of that constitutional provision, this Court stated in
18
Heller:
As we have previously recognized, separation of powers "is probably
the most important single principle of goverment declaring and
guaranteeing the liberties of the people." It works by preventing the
accumulation of power in any one branch of government.
120 Nev. at 466, 93 P. 3d at 752 (citing Galloway v. Truesdell, 83 Nev. 13, 18, 422
P.2d 237, 241 (1967) and 1 Ronald D. Rotunda & John E. Nowak, Treatise on
Constitutional Law 3.12, at 394 (3d ed. 1999)).
This Court rightly rejected Heller's request for an order forbidding executive
branch employees from serving in the legislature. Heller, 120 Nev. at 466, 93 P.3d
at 752. The Court not only relied on Article 4, Section 6 of the Constitution of the
State of Nevada, which expressly grants the legislature the right to judge the
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20
21
22
23
24
25
26
27
28
13
1 qualification, elections and returns of its own members, but the Court also
2 recognized the principal of "legislative self-protection." 9
3 In City of Sparks v. Sparks Mun. Court, this Court reiterated that the judiciary
4 is a coequal branch of government, with the inherent powers to protect itself and
5 administer its affairs. 302 P.3d 1118, 1128, 129 Nev. Adv. Rep. 38 (Nev. 2013).
6 This Court also noted that "[e]ach governmental branch also has certain inherent
7 powers, by virtue of its sheer existence and as a coequal branch of government, to
8 carry out its basic functions." Id. The Court further established that municipal
9 courts, as coequal branches of their local governments, are protected by the
10 constitutional separation of powers doctrine and possess inherent judicial powers to
11 the same extent as the other courts of this state. Id.
12 It follows then, that municipal legislative and executive bodies also possess
13 inherent powers to the same extent as their state legislative and executive branch
14 counterparts. Id While there is no express constitutional provision providing that
15 members of municipal legislative bodies may judge the qualification of their own
16
17
9
In explaining legislative self- protection in Heller this Court quoted the
Minnesota Supreme Court as follows:
18
19

It is obvious, that a power must be lodged somewhere to judge of the

elections, returns, and qualifications of the members . . . . The only
20

possible question on such a subject is, as to the body, in which such a

21

power shall be lodged. If lodged in any other, than the legislative body
itself, its independence, its purity . . . may be destroyed . . . . No other
22

body, but itself, can have the same motives to preserve and perpetuate
23

these attributes; no other body can be so perpetually watchful to guard

its own rights and privileges from infringement, to purify and
24

vindicate its own character, and to preserve the rights, and sustain the
25

free choice of its own constituents. Accordingly, the power has always
been lodged in the legislative body by the uniform practice of England
26

and America.
27
Heller, 120 Nev. at 469 , 9 3 P.3d at 754 (quoting Scheibel v. Pavlak, 282 N.W.2d
28 843, 847 (Minn. 19 79 )).
14
1 members, the power to do so is an inherent power of each body. See Lueck, 125
2 Nev. at 676, 219 P.3d at 896 (holding that despite lack of standing by movant, the
3 Court could consider merits of decision to remove judge from office under its
4 supervisory responsibilities over the judicial branch).
10
The inherent power each
5 branch of government has to administer its responsibilities is subject to express
6 constitutional limitations and laws that do not violate those express provisions. See
7 Lueck, 125 Nev. at 677-78, 219 P.3d at 897 (explaining the constitutional basis for
8 the Court's authority over the judicial branch).

9 Thus, when it comes to the legislative branch, the Court may act in a limited
10 sphere with respect to the qualifications, elections, and returns of legislators
11 including when the legislature has: (1) devised a role for the courts by statute, such
12 as election contests, (2) infringed upon personal constitutional rights, or (3)
13 imposed extra-constitutional qualifications. Heller, 120 Nev. at 471, 93 P.3d at
14 756.

15 This Court has confirmed that the Mayor and the City Council are part of a
16 separate, legislative branch and specifically that the Mayor is a member of the
17 City's legislative body. See generally, City of Sparks, 30 2 P.3d at 1130 (discussing
18 the powers of the various branches of municipal governments); see also Lorton, 322
19 P.3d at 10 58-59 (holding that the office of mayor under the Reno City Charter
20 [similar to the Henderson City Charter] is a member of the local governing body
21 and a member of the legislative, not executive branch). Thus, in the absence of a
22 devised role for this Court by statute, the assertion of a personal constitutional right,
23 or the imposition of an extra-constitutional qualification, this Court has no role to
24 determine Mayor Hafen's qualification for office. Heller, 120 Nev. at 471, 93 P.3d
25
26
27
28
to
Workman cites Lueck for the principle that the Court may grant discretionary
relief without limitation when public policy is at issue. See Pet. Brief at p. 11.
Wrong. The Court's reason for granting relief in Lueck stemmed from its
supervisory authority over the judicial branch, not a general authority to remove
elected officials in the name of public policy.
15
I at 756. That role is left to the members of the Henderson City Council. See
2 Henderson City Charter Sec. 2.060(1) and (2) (providing that the City Council may
3 judge the qualifications and elections of its own members and adopt rules for the
4 government of its members).
5 As set forth above in detail, this Court's post-election role is limited to
6 determining timely election contests and quo warranto actions. At this point, any
7 action outside of quo wan-anto is left to the voters of Henderson through recall, or
8 the members of the City Council. See Henderson City Charter Secs. 2.030 and
9 2.060.
10

However, in the event this Court does act to order Mayor Hafen's removal
11 from office, in no event should this Court appoint Workman as Mayor. Again,
12 under the long standing principles of separation of powers, this Court should leave
13 the filling of any vacancy to the Henderson City Council. See Henderson City
14 Charter 2.030 (providing that a vacancy may be filled by a majority vote of the
15 remaining council, or special election called by resolution); see also Lueck, 125
16 Nev. at 686, 219 P.3d at 902 (ordering Governor to declare office vacant and
17 providing that office would be filled by applicable appointment process).
18

VI. CONCLUSION
19

Workman is not a "competing office holder" or otherwise entitled to the

20 office of Mayor of Henderson. While he likely cannot maintain a quo wan -anto
21 action, the City's interest is that this Court not appoint an individual as Mayor who
22 lost the primary election and who has never met any test for occupying the office.
23 Further, Workman's claim that he is a "competing office holder" for the office of
24 Mayor of Henderson, while maintaining his employment with the City, in violation
25 of Section 1.080 of the Henderson City Charter, calls the veracity of Workman's
26 assertion into question.
27

Workman failed to exhaust or attempt any of the numerous statutory and

28 constitutional methods for challenging Mayor Hafen's qualifications for office. He
16
1 failed to present this Court with a valid reason as to why he did not attempt one of
2 those challenges. In order to ensure the efficient operation of government, the City,
3 its residents, and its public officials must be able to rely on the constitutional and
4 other state law provisions for challenging candidate qualifications and the fitness of
5 office holders.

6 Workman's request for a writ of mandamus to remove the Mayor more than a
7 year after the 2013 election invites this Court to impinge upon the inherent power of
8 the legislative branch and tests the doctrine of the separation of powers. This Court
9 should decline that invitation.

10 For the reasons set forth in this brief and in the briefs filed by Respondents
11 and Mayor Hafen this Court should deny Workman's request for leave to file a writ
12 of quo warrant and deny his request for mandamus or other extraordinary relief.
13 In the event this Court is inclined to order Mayor Hafen's removal, this Court
14 should not appoint Workman to the office of Mayorfor many reasons, including
15 separation of powers but chiefly because Workman is not entitled to be mayor.
16 Any vacancy created by this Court should be filled by the City Council as set forth
17 in the Henderson City Charter.
18
DATED this /7- 44..day of July, 2014.
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CITY OF HENDERSON
JOSH M. REID, City Attorney
11/6Ciz
JOSH M. REID
City Attorney
BRANDON P. KEMBLE
Assistant City Attorney
240 Water Street, MSC 144
Henderson, Nevada 89015
Attorneys for Amicus Curiae
CITY OF HENDERSON
17
1 NRAP 28.2 CERTIFICATE OF COMPLIANCE

2 I hereby certify that this brief complies with the formatting requirements of
3 NRAP 32(a)(4), the typeface requirements of NRAP 32(a)(5) and the type style
4 requirements of NRAP 32(a)(6) because this brief has been prepared in a
5 proportionally spaced typeface using Microsoft Word in Times New Roman in font
6 size 14.

7 I further certify that this brief complies with the page or type-volume
8 limitations of NRAP 32(a)(7) because, it is proportionately spaced, has a typeface
9 of 14 points or more, and contains approximately 5006 words

10 Finally, I hereby certify that I have read this amicus brief, and to the best of
11 my knowledge, information, and belief, it is not frivolous or interposed for any
12 improper purpose. I further certify that this brief complies with all applicable
13 Nevada Rules of Appellate Procedure, in particular NRAP 28(e)(1), which requires
14 every assertion in the brief regarding matters in the record to be supported by a
15 reference to the page and volume number, if any, of the transcript or appendix
16 where the matter relied on is to be found. I understand that I may be subject to
17 sanctions in the event that the accompanying brief is not in conformity with the
18 requirements of the Nevada Rules of Appellate Procedure.

19

DATED this day of July, 2014.

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22

BRANDON P. KEMBLE
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am an employee of the CITY OF
HENDERSON, and that on this 17th day of July, 2014, I electronically filed and
served by electronic mail and United States Mail a true and correct copy of the
above and foregoing BRIEF OF AMICUS CURIAE CITY OF HENDERSON IN
SUPPORT OF RESPONDENTS AND REAL PARTY IN INTEREST properly
addressed to the following:
Stephanie Rice, Esq.
Hardy Law Group
96 & 98 Winter Street
Reno, NV 89503
Attorney for Petitioner
The Honorable Catherine Cortez Masto
Attorney General of the State of Nevada
100 N. Carson Street
Carson City, NV 89701
Respondent
The Honorable Ross Miller
Nevada Secretary of State
101 North Carson Street, Suite 3
Carson City, NV 89701-3714
Respondent
Todd L. Bice, Esq.
Jordan T. Smith, Esq.
3883 Howard Hughes Parkway, Suite 800
Las Vegas, Nevada 89169
Attorneys for Real Party in Interest
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An employee of City of the Henderson
19
1

DECLARATION OF SABRINA MERCADANTE

2 I. My name is Sabrina Mercadante, I am over the age of 1 8, and I am competent to

testify concerning the matters set forth in this declaration.

42. I make this declaration in support of the Brief of Amicus Curiae City of

Henderson In Support of Respondents and Real Party in Interest.

6 3 . I am the City Clerkfor the City of Henderson, and I have been in that position

since September 7, 201 0.

8 4. I am familiar with the policies and procedures relating to elections at the City of

Henderson.
1 0 5 . I am responsible for administering ballot process and maintaining election

1 1

records pursuant to NRS 293 C.

1 2 6. I am responsible for maintaining ballots, lists and records pursuant to NRS 293 C.
1 3 7. I am also familiar with the costs and procedures relating to special elections.
1 48. At no time prior to the primary election held on April 2, 201 3 , did my office

1 5

receive a challenge, of any kind, concerning the qualifications of any candidate

1 6

for the office of Mayor.

1 7 9. At no time following the primary election held on April 2, 201 3 , did I receive a

1 8

request to inspect any records pursuant to an election contest or receive any other

1 9

type of challenge.
20 1 0. The estimated cost to hold a special election is $1 23 ,000.00.
21 1 1 . There are significant resources and time commitments associated with preparing

22

for and conducting a special election that would otherwise be used to conduct

23

City business.
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Page 1 of 2
12. Ex. B is a true and correct certified copy of the results of the primary election
held on April 2, 2013
I declare under penalty of perjury that the foregoing is true and correct.
Dated this r2i, day of July, 2014.
SABRINA MERCADANTE
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Page 2 of 2
142,813
5,929
9,109
2,600
Total.- 17,638
4.15%
6.38%
1.82%
12.35%
155/155 100.00%
9,618
390
186
241
459
123
6,520
Total... 17,537
54.84%
2.22%
1.06%
1.37%
2.62%
0.70%
37.18%
100.00%
155/155 100.00%
2,687
2,707
2,490
8,450
Total... 16,334
16.45%
16.57%
15.24%
51.73%
100.00%
155/155 100.00%
6,803
6,992
1,723
1,178
Total... 16,696
40.75%
41.88%
10.32%
7.06%
100.00%
2013 MUNICIPAL PRIMARY ELECTION
April 2, 2013
Subdivision Report
Clark County
Official Final--HEN
Henderson - At Large
Registration & Turnout
Election Day Turnout
Early Vote Turnout
Mail Turnout
MAYOR OF HENDERSON
Hafen, Arthur A. 'Andy'
Hamilton, Eddie 'In Liberty'
Robinson, Kyler
Sakura, Jerry
Scala, Joe
Simmons, Clayton
Workman, Rick
CITY COUNCIL, WARD III, HENDERSON
Cutler, Bruce
Doyle, Milt E.
Lale, Erin
Marz, John F.
MUNICIPAL COURT JUDGE, DEPT. I, HENDERSON
DiGiacomo, Sandy Allred
Stevens, Mark Jeffrey
Thompson, Gary D.
Zach, Terry Jones
CERTIFI n
m inum m Ib m
B 4.7)
". "I"T R Cal
th e
oxgrasiellialifilliamilfte Itiant
April 03, 2013 8:28 AM

Page 1 of 1
Ex. C
0
4.. 'N. E 5
.4 Rate 76 Ca 4:lone
CITY OF HENDERSON
City Attorney's Office
Josh M. Reid, City Attorney
P.O. Box 95050, MSC 144
Henderson, NV 89009-5050
(702) 267-1200
VIAE-MAIL
March 28, 2013
Rick Workman
Accreditation Coordinator
Henderson Police Department
223 Lead Street
Henderson, Nevada 89009
Re: Personal and Confidential Advisory Opinion
Dear Mr. Workman:
I was informed today that at some point close in time to your decision to file your
Declaration of Candidacy for Mayor of Henderson, you contacted a member of the City
Attorney's Office ("CAO") to determine if your decision to run for such office would have any
bearing on your employment with the City. Although you never requested a formal opinion
from the City Attorney, it appears that you were under the impression that a formal opinion,
setting forth the City's position on the issue was going to be prepared and provided to you.
On behalf of the CAO, I apologize for the apparent breakdown in communication. For your
future reference, as a City employee you have two resources when seeking an ethics opinion.
Under HMC 2.40.100 you can ask the City Attorney for an Advisory Opinion. Requests for
an Advisory Opinion should be made in writing to the City Attorney. In addition, as a City
employee you may ask for an ethics opinion by the Nevada Commission on Ethics.
With respect to your decision to run for Mayor and any effect that your candidacy may
have on your current employment with the City, HMC 2.40.090(B) states "[a] City employee
may run for or hold political office so long as that office is not inconsistent with the employee's
job duties." This provision in the HMC is not a bar against City employees, including you, from
running for elective office. This provision relates to a City employee's ability to fulfill their work
duties while running for elective office. Under HMC 2.40 someone could file a complaint with
the City Attorney with regard to a City employee's violation of this provision, but I can assure
you that this has not occurred with respect to your candidacy.
With respect to the City of Henderson Charter, Sections 1.080 1(a) and (2) do not
preclude a City employee from running for Mayor. Nevertheless, these provisions of the
Charter do not allow the Mayor or any member of the City Council to be a City employee.
Accordingly, if you are successful in your mayoral campaign you will have to resign as a City
City Attorney's Office (702) 267-1200 fax (702) 267-1201 www.cityofhenderson.com
Rick Workman Advisory Opinion
March 28, 2013
Page 2
employee before taking the Oath of Office as Mayor. Unless you resign from your
employment, you would automatically forfeit your office as Mayor.
Should you have any questions or need additional information regarding this important matter,
please feel free to contact me at your convenience. Again, I apologize again for any delay.
Sincerely,
Josh M. Reid
City Attorney