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Workman v. Attorney General petition

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A lawsuit filed by Henderson resident Rick Workman seeking to oust incumbent Mayor Andy Hafen from office, on the grounds that he's ineligible to serve because he's exceeded constitutional term limits.

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Electronically Filed
May 21 2014 10:13 a.m.
Tracie K. Lindeman
Clerk of Supreme Court
Docket 65716 Document 2014-16534
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Henderson Mayor, Arthur "Andy" Hafen is currently holding office in violation
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of the 1 996 Term Limits Amendment to the Nevada Constitution in that he had already
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served almost seventeen (1 7) years in office when he was re-elected in 201 3 . See,
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Nev. Const. Art. 1 5, §3 .
 
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Petitioner Rick Workman ("Petitioner") elector citizen, by and through his
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counsel Stephanie Rice, Esq. and Hardy LawGroup, hereby respectfully petitions this
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Court for leave to file or proceed with a quo warranto action herein pursuant to NRS
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3 5.090 and in accordance with NRS Chapter 3 5, or in the alternative, Writ relief
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pursuant to NRAP 21 , Article 6, Section 4 of the Nevada Constitution and NRS 3 4.1 60
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and seeks removal of the Mayor of Henderson, Arthur "Andy" Hafen (hereinafter "Mr.
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Hafen") because he is not qualified and was not qualified at the time of his election
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thereto to hold such position.
 
1 3  
Petitioner herein bases his request on Article 1 5, Section 3 of the Nevad a
1 4 Constitution, which provides:
 
1 5  
1 . No person shall be eligible to any office who is not a qualified
elector under this constitution.
2. No person may be elected to any state office or local governing
body who has served in that office, or at the expiration of his current
term if he is so serving will have served, 1 2 years or more, unless the
permissible number of terms or duration of service is otherwise
specified in this constitution.
Nev. Const. Art. 1 5, §3 . Mr. Hafen served his maximum allotted "twelve years or
more" as a member of the Henderson City Council at the end of the four-year term he
was elected to in 2007. As such, The additional term or terms Mr. Hafen has been
elected to on the governing body of the city of Henderson as Mayor, are void, as a
matter of law. His continued service therein constitutes an ongoing and direct violation
of Article 1 5, Section 3 (2) of the Nevada Constitution.
Accordingly, Petitioner respectfully asks this Court to grant Petitioner leave
herein 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 the
Nevada Secretary of State as the Chief Elections Officer of the state, to take action and
mandate that Arthur "Andy" Hafen be immediately removed from the legislative body
of the city of Henderson, as he has exceeded the twelve-year term limit constraints set
forth in Article 15, Section 3(2) of the Nevada Constitution. He was not qualified for
re-election thereto and is not, therefore, qualified to continue to unlawfully hold such
seat.
I. THIS COURT'S DISCRETION TO EXERCISE ITS JURISDICTION IS
NECESSARY AND PROPER IN THIS CASE
a. Jurisdiction
This 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 pertinent
part, "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 to
the complete exercise of its appellate jurisdiction."
Further, NRS 35.080 provides this Court with jurisdiction to hear quo warrant°
actions as follows: "An action under this chapter can be brought in the Supreme Court
or 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 of
Mandamus or other extraordinary Writ relief. Accordingly, this Court has jurisdiction
to hear the matters set forth herein. Nev. Const. Art. 6, §4; NRS 34.150.
b. Quo Warrant° Proceedings.
Petitioner recognizes that, pursuant to NRS 35.010(1):
A civil action may be brought in the name of the State: 1. Against a
person who usurps, intrudes into, or unlawfully holds or exercises, a
public office, civil or military, except the office of assemblyman or
state senator, or a franchise, within this state, or an officer in a
corporation 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 Attorney
General has declined to do so. 1 As such, Petitioner is forced to turn to the provisions
of NRS 35.090, which provides:
Upon application for leave to file a complaint, the court or judge
may, in its discretion, direct notice thereof to be given to the
defendant previous to granting such leave, and may hear the
defendant in opposition thereto; and if leave be granted, an entry
thereof shall be made on the minutes of the court, or the fact shall be
endorsed by the judge on the complaint, which shall then be filed.
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9 NRS §35.090. Petitioner respectfully seeks such permission herein. "Where the
1 0 attorney general refuses to act, one claiming election to an office may, by leave of
1 1 court, bring quo warranto on his own relation, when he has no other remedy." State ex
1 2
rel. McMillan v. Sadler, 2 5 Nev. 1 31 , 58 P. 2 8 4 (1 8 99) modified, 2 5 Nev. 1 31 , 59 P.
1 3 546 (1 900) and modified, 2 5 Nev. 1 31 , 63 P. 1 2 8 (1 900). "Ordinarily, only the state
1 4 attorney general may file a quo warrant° action under NRS §35.01 0-.2 70." State ex
1 5 rel. Holland v. City of Reno, 2 62 P.2 d 953, 954 (Nev.1 953). However, the Court in
1 6 Belec v. Amerco, 39 F.3d 1 1 8 6 (9th Cir. 1 994), articulated the criteria this Court has
1 7 used for making an exception to that general rule:
1 8  
An exception may be made if three criteria are met: (1 ) the action
would -provide the only possible basis for relief to the private
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plaintiff, (2 ) the attorney general has refused to bring the action, and
(3) the refusal "under the circumstances was improper and not in the
2 0  
public interest." Id (construing State ex rel. McMillan v. Sadler, 58
P. 2 8 4 (Nev.1 8 99)). Whether these criteria have been met is
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determined when the private plaintiff applies for leave to bring the
action. Holland, 2 62 P.2 d at -954; see also Nev.Rev.Stat. § 35.040
2 2
 
 (requiring leave to file action on behalf of relator). Deciding whether
to grant leave "amount[s] to a review of the attorney general's
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actions.
2 4 Belec v. Amerco, 39 F.3d 1 1 8 6 (9th Cir. 1 994), citing Holland, 2 62 P.2 d at 954.
2 5 Petitioner herein meets such criteria.
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1 A true and correct copy of correspondence from the Attorney General's office
declining quo warrant° action is attached to Petitioner's Appendix at Exhibit "1 ."
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[Emphasis Added]. NRS §3 5 .0 1 0 .
1 2  
Here, Petitioner is both a private citizen of this State, as well as a competing
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office holder. Petitioner ran against Mr. Hafen, along with five (5 ) other candidates, in
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Henderson's 20 1 3 municipal election. 2 Out of 1 42,8 1 3 registered voters, only 1 7,6 3 8 ,
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or roughly 1 2% voted in the primary election on April 2, 20 1 3 . Id Mr. Hafen won
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with 5 4.8 4%of the vote. Petitioner received the next highest vote at 3 7.1 8 %. Id. The
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other five (5 ) candidates received less than 8 % of the vote, combined. Id. Petitione
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complied with the provisions of NRS Chapter 3 5 and respectfully made requests of the
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Attorney General, Secretary of State (as the Chief Elections Officer) and/or the
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Governor respectively, to act or compel action against Mr. Hafen; however, those
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requests were declined. 3
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Petitioner's only choice is to request leave of this court to bring this quo
23 wan- anto action himself. See, State ex rel. McMillan v. Sadler, 25 Nev. 1 3 1 , 5 8 P. 28 4
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(1 8 9 9 ) modified, 25 Nev.1 3 1 , 5 9 P.5 46 (1 9 0 0 ) modified, 25 Nev.1 3 1 , 6 3 P.1 28 (1 9 0 0 ).
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2 A true and correct copy of Henderson's 20 1 3 Municipal Primary Election results are
attached to Petitioner's Appendix at Exhibit "2," pages PA0 0 0 0 0 5 - 0 0 0 0 0 6 .
3 A true and correct copy of Petitioner's requests are attached to Petitioner's
Appendix at Exhibit "3 ." See also, Exhibit "1 " attached to Petitioner's Appendix.
1 .  This action is the only appropriate basis for the relief
NRS §3 5 .0 1 0 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 or
exercises, a public office, civil or military, except the office of
Assemblyman, Assemblywoman or State Senator, or a franchise,
within this state, or an officer in a corporation created by the
authority of this state.
2. Against a public officer, civil or military, except the office of
Assemblyman, Assemblywoman or State Senator, who does or
suffers an act which, by the provisions of law, works a forfeiture of
the office.
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2.  The Attorney General has refused to brim, - the action.
2  
On April 4, 2014, Petitioner, by and through counsel, sent a request via both
3 United States Postal Service as well as facsimile (to avoid delay), to the Honorable
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Governor Sandoval, Attorney General Cortez Masto and Secretary of State Miller,
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respectfully asking that they "Please consider this a formal request to commence quo
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warrant° proceedings against the current Mayor of Henderson, Andy Hafen." 4
 
7  
Three weeks later - after failing to hear anything at all in response to Petitioner's
8 April 4, 2014 request - on April 25 , 2014, Petitioner sent a follow-up request via both
9 United States Postal Service (this time by Certified Mail) as well as facsimile (again,
10 to avoid delay). Id.
 
1 1  
Later that same day, counsel for Petitioner learned via the Las Vegas Review
12 Journal that the Governor's office maintains that the request "is a legal matter for the
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secretary of state's and attorney general's offices" and further, that the Secretary of
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State's office "ha[d] received the letters and will review them." 5 To date, Petitioner
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has not received any direct response from the Governor's office, or the Secretary of
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State's office.
 
17  
However, on May 1, 2014, Petitioner received correspondence from the
18 Attorney General's office stating, "[I] am writing to inform you that this Office does
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not intend to bring a quo warranto action against Mayor Hafen." 6 As such, it is clear
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that the Attorney General has refused to bring this action.
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3.  The Attorney General's refusal to bring the action is improper and
against 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 is
attached 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 be
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adequately enforced by prospective application, and that retrospective application may
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produce inequitable results to the voters by removing the official whom they re-elected
4 prior to the ruling in Lorton." (Citations Omitted). Id.
 
5  
The reasoning of the Attorney General's office to decline action against Mr.
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Hafen is flawed, and thus, refusal to bring such action is improper and fundamentally
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against public interest. This Court addressed a similar "retrospective application"
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argument with respect to Article 15 , Section 3 of the Nevada Constitution in Miller v.
9 Burk, 124 Nev. 5 79, 5 92-95 , 188 P.3 d 1112, 1121-23 (2008). In that case, this Court
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held that "applying Article 15 , Section 3 (2) to preclude real parties in interest from
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serving in the same position in 2009 does not constitute an impermissible retrospective
12 application." Id.
 
13  
In Miller v. Burk, the real parties in interest made the argument that Article 15 ,
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Section 3 cannot be applied retrospectively "because an individual's years of service
15 are necessarily linked to the individual's election, including within a years-of-service
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calculation those terms that were filled based on an election held before the term-limit
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amendment became effective is an impermissible retrospective application of the term-
18 limit amendment." Id. at 5 92-5 93 .
 
19  
However, this Court disagreed and citing to Public Employees' Benefits
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Programv. LVMPD, 124 Nev. 13 8, 179 P.3 d 5 42, 5 5 3 (2008) held, "just because a
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statute draws upon past facts does not mean that it operates 'retrospectively.' " Id.
22 This is the exact case here.
 
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This case pertains to an immediate, current and ongoing disregard of an
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established Nevada Constitutional Amendment, which past facts serve to corroborate.
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Therefore, Petitioner is asking that this Court draw upon the past facts: Mr. Hafen has
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held a seat on the legislative body of the city of Henderson for more than twenty-five
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(25 ) years- seventeen (17) of them after the enactment of Article 15 , Section 3 (2).
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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 hold
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office with the city of Henderson.
 
3  
Article 15, Section 3 (2) of the Nevada Constitution has been a valid law in this
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state since its enactment in 1996. Petitioner is not asking that any interpretation
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thereof be applied prior to its 1996 enactment. Petitioner simply seeks to enforce the
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law, as written in 1996 and as interpreted by this Court in Lorton v. Jones, 13 0 Nev.
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Adv. Op. 8, 3 22 P.3 d 1051 (2014), reh'g denied (Mar. 5, 2014). Lorton v. Jones did
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not amend Article 15, Section 3 (2) or add, change or supplement any part thereof, or
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any other statute or law for that matter.
 
10  
Applying the analysis set forth by this Court in Lorton v. Jones to the instant
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matter does not constitute retrospective application of Article 15, Section 3 (2), it
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simply "draws upon past facts" and, as this Court has previously held, doing so "does
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not mean that it operates 'retrospectively.' "See, Miller v. Burk, 124 Nev. 579, 592-
14
95, 188 P.3 d 1112, 1121-23 (2008); Citing, Public Employees' Benefits Program v.
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LVIVIPD, 124 Nev. 13 8, 179 P.3 d 542, 553 (2008).
 
16  
Accordingly, the Attorney General's refusal to take action to remove Mr. Hafen
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and its reasoning therefor, is improper and fundamentally against public interest (as
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discussed more fully herein).
 
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c. Alternative Writ Relief.
 
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A writ of mandamus is available to compel the performance of an act that the
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law requires as a duty resulting from an office, trust or station, or to control an
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arbitrary or capricious exercise of discretion. Brewery Arts Center v. State Bd. o
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Examiners, 108 Nev. 1050, 1053 , 843 P.2d 3 69, 3 72 (Nev. 1992); NRS 3 4.160.
 
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Should this Court deny Petitioner's request for leave to proceed in quo warranto,
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in the alternative, Petitioner respectfully asks this Court to exercise its discretion to
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hear this matter on the merits under its general Writ discretion. Specifically, Petitioner
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asks this Court to grant alternative Writ relief directing the Attorney General or the
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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 has
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exceeded the twelve-year term limit constraints set forth in Article 15, Section 3 of the
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Nevada Constitution, and thus he was not qualified for re-election thereto, and is
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therefore, not qualified to continue to unlawfully hold such seat.
 
5  
The decision to entertain a petition for mandamus is discretionary within this
6 Court. Redecker v. District Ct. (Mosley), 122 Nev. 164, 167, 127 P.3d 520, 522
7 (2006); See also, S. California Edison v. First Judicial Dist. Court of State of Nevada,
8 255 P.3d 231, 234 (Nev. 2011), reh'g denied (Sept. 20, 2011).
 
9  
This Court may consider whether "judicial economy and sound judicial
10 administration militate for or against issuing the writ." Id. at 167. While Petitioner
11 understands and holds great respect for the long-standing precedent of this Court - that
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the issuance of writs is an extraordinary remedy - Petitioner respectfully asks this
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Court to hear this matter following its previous decisions granting writ relief, where
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the circumstances reveal urgency and strong necessity. See, Cote H. v. Eighth Judicia
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District Court ex rel. County of Clark, 175 P.3d 9 06, 9 08 (Nev. 2008 ).
 
16  
Mandamus relief is justified here, given the important matter of public concern a
17
issue. Additionally, and while not binding on this Court, under similar circumstances
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California courts have held as follows:
 
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A private party in California may bring a quo warranto action to
challenge any person allegedly holding or exercising public office
 
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unlawfully. Cal.Civ.Proc.Code § 8 03 (19 8 0); Nicolopulos v. City of
Lawndale, 9 1 Cal.App.4th 1221, 111 Cal.Rptr.2d 420, 422-25
 
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(2001). The quo warranto procedure is the exclusive remedy to
challenge title to an elected office and is an adequate post-
 
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deprivation process to satisfy procedural due process. Id
D'Agostmo's argument that the quo warrant° process is inadequate
 
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because the Attorney General must approve the suit fails because an
arbitrary denial of permission by the Attorney General can be
 
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challenged in a state mandamus action. Id. at 425.
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[Emphasis Added]. D'Agostino v. Delgadillo, 111 F. App'x 8 8 5, 8 8 7 (9 th Cir. 2004).
 
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Petitioner finds this to be the ease with respect to Nevada's Writ statutes as well
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because NRS 34.170 explicitly provides, "[Writ shall be issued in all cases where
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there is not a plain, speedy and adequate remedy in the ordinary course of law.. . . ."
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[Emphasis Added]. Even if this Court declines Petitioner's request to proceed in quo
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warrant°, NRS 34.170 provides for a catchall procedural remedy (which is of course
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not to be abused) when circumstances such as this arise. Perhaps even more
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importantly, when a Petitioner has a good faith belief that the Attorney General has
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erred in declining to proceed with requested action.
6  
Accordingly, Petitioner brings this alternate request for Writ relief as a private
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citizen, because this matter involves an issue of great public importance and seeks to
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enforce a public duty. See, NRS 34.170. See also, Indep. Am. Party of Clark Cnty. ex
9
rel. Hansen v. Miller ex rel. State, 124 Nev. 1476, 238 P.3d 8 21 (2008 ).
 
10  
This Court held in State v. Gracey, 11 Nev. 223 (18 76), "Where the writ o
11 mandamus is sought for the enforcement of a public right, common to the whole
12
community, it is not necessary that the relator should have a special interest in the
13
matter." In State v. Gracey, 11 Nev. 223 (18 76) and also later reaffirming it's holding
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therein in Indep. Am. Party of Clark Cnty. ex rel. Hansen v. Miller ex rel. State, 124
15
Nev. 1476, 238 P.3d 8 21 (2008 ), this court addressed the issue of standing for wri
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petitions stating:
 
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[W]hen a petition seeks to enforce a public duty and involves a
public right, the petitioner 'is not required to show that he has any
 
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legal or special interest in the result, it being sufficient if he shows
that he is interested, as a citizen, in having the laws executed and
 
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the right enforced.' Gracey, 11 Nev. at 229-30; see also State Bar of
Nevada v. List, 97 Nev. 367, 368 , 632 P.2d 341, 342 (198 1). Based
 
20  
on this reasoning, we conclude that petitioner has standing to bring
this petition.
21
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[Emphasis Added]. Indep. Am. Party of Clark Cnty. ex rel. Hansen v. Miller ex rel.
State, 124 Nev. 1476, 238 P.3d 8 21(2008 ); citing, State v. Gracey, 1 1 Nev. 223 (18 76).
In addition to being a competing office holder, Petitioner is a citizen of
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Henderson, Nevada; and, as such, he has an interest in having the term limit laws of
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the State of Nevada enforced.
27  
From the time the term limits amendment was enacted in 1996, Mr. Hafen has
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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 to
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mention the almost-decade, he served, prior to the enactment of term limits. If a
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person "has served" in an office on a local governing body or "will have served" in
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an office on that local governing body for twelve (12 ) years or more by the time his
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current term expires, that person may not be elected to that office. Mr. Hafen's re-
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elections to Henderson's governing body after he exceeded Constitutional term limits,
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were in violation of the Nevada Constitution, and therefore cannot stand.
 
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d. As a Matter of Public Policy, Relief by this Court is Necessary.
 
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Denial of Petitioner's requested relief, would effectively allow Mr. Hafen to
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continue to completely disregard the purpose and intention of the term limits
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amendment. This Court has a strict policy of interpreting statutes "in light of the
12
policy and spirit of the law" and to "avoid absurd results." In re Orpheus Trust, 12 4
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Nev. 170, 179 P.3 d 5 62 (2 008 ); Citing, Hunt v. Warden, 111 Nev. 12 8 4, 12 8 5 , 903
14
P.2 d 8 2 6, 8 2 7 (1995 ).
 
15  
In 1994 and again in 1996, the initiative to limit terms of state and local officials
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appeared on the general election ballots, proposing to amend the Nevada Constitution
17
to impose term limits upon various state and local officers. 7 In Nevada, such
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initiatives must be approved by voters at two consecutive elections before it becomes
19
law. See, Nev. Const., Art. 19, §2 (4).
 
2 0  
Argument encouraging passage of the twelve-year term limitation read, in
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pertinent part: "Proponents argue that passage will stop career politicians since no
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one will be able to hold office for several terms. . . . local governing body members
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would have the opportunity to focus on the issues instead of reelection." [Emphasis
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Added]. Id.
 
2 5  
The term limit initiative not only passed in 1994, it overwhelming passed by
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nearly 70% of the vote statewide, then passed again in 1996. As set forth herein, the
2 7
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7 A true and correct copy of the initiative from the 1994 general election is attached to
Petitioner's Appendix at Exhibit "5 ," PA00002 8 - PA00003 1.
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statistics with respect to Mr. Hafen's improper re-election pales in comparison. Out of
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142,813 registered voters in Henderson, only 17,638 - or roughly 12% - voted in the
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primary election on April 2, 2013. Mr. Hafen won with 54.84% of the vote. What that
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means is Mr. Hafen was re-elected in 2013 by less than 7% of the total registered
5
voters of the city of Henderson.
 
6  
On November 27, 1996, the twelve-year term limitation went into effect and
7 became law. Since that time, Mr. Hafen has served more than seventeen (17) years on
8
Henderson's governing body. To allow Mr. Hafen to remain in office and finish out
9
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 of
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Henderson for more than thirty (30) years. (More than twenty (20) of them occurring
12
after the enactment of the 1996 term limits amendment).
 
13  
The voters of this State have spoken overwhelmingly in favor of term limits. Mr.
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Hafen cannot and should not be permitted to blatantly disregard the will of the voters
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and the Nevada Constitution.
 
16  
In Lueck v. Teuton, 125 Nev. 674, 676, 219 P.3d 895, 896 (2009), this Court
17
held,
 
18  
That question initially was brought to this court's attention when
movant, a private Nevada citizen, sought leave to file a petition on
 
19  
behalf of the State of Nevada for a writ of quo warranto removing
the judge from office. As we conclude that movant lacks standing,
 
20  
however, we consider the merits of the fudge's commission under
 
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our supervisory responsibilities over the judicial branch.
22
[Emphasis Added]. This Court has also used its discretion to grant Writ relief when
23
public policy is served by the Supreme Court's invocation of its original jurisdiction,
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and when a "petition raises an issue that presents an urgency and necessity of sufficient
25
magnitude to warrant the Supreme Court's consideration." We People Nevada ex rel.
26
Angle v. Miller, 124 Nev. 874, 192 P.3d 1166 (2008). Extraordinary relief is necessary
27
by this Court, because Mr. Hafen is currently continuing to serve the city of
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Henderson, in direct violation of Article 15, Section 3(2) and the voice of the people of
2
the state of Nevada.
 
3  
This is not a request based on some obscure technicality, where an elected
4
official has served a few days, weeks or even months past their maximum allotted
5 terms, although that would not be any more in compliance with the law than the
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instance circumstance. This is a particularly egregious situation, where we have an
7 elected official who, at the end of his current term, will have served literally more
8 than thirty (30) years on the Henderson City Council, more than twenty (20) of them
9
after the 1996 term limits amendment was passed.
 
10  
Petitioner clearly has standing due to the important matter of public concern
11 raised herein and this Court should grant relief, as requested herein, and hear this
12
matter on the merits.
13
II. MRHAFEN MUST BE REMOVED AS HIS CONTINUED SERVICE IS
IN DIRECT VIOLATION OF THE LAWS OF THIS STATE.
14
a. The Nevada Constitution, in combination with the Henderson City
Charter, prohibits Mr. Hafen from continued service on behalf of the
city of Henderson.
17
 
18  Article 15, Section 3(2) of the Nevada Constitution reads:
 
19  No person may be elected to any state office or local Koverning
body
who has served in that office, or at the expiration of his current term
 
20  if he is so serving will have served, 12 years or more, unless the
permissible number of terms or duration of service is otherwise
 
21  specified in this constitution.
22 [Emphasis Added]. As this Court recently clarified in Lorton v. Jones, 130 Nev. Adv.
23 Op. 8 , 322 P.3d 1051, 1057-58 (2014), reh'g denied (Mar. 5, 2014), Article 15, Section
24 3(2) precludes "reelection to the local governing body as a whole when a member has
25 served on that body for 12 years or more in any capacity."
26
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15
16
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1
 
It is undisputed that the Mayor of Henderson is a member of the Henderson City
2
Council, which holds the legislative power of the City. 8 Section 2.01 0of the
3 Henderson City Charter states in relevant part:
4  
1 . The legislative _power of the City is vested in a City Council
5
 
consistinff offour Council Members and the Mayor.
. . .
6  
4. All Council Members, including the Mayor, must be voted upon
by the registered voters of the City at large and, except as otherwise
7  
provided in section 5 .020, shall serve for terms of 4 years.
8
[Emphasis Added]. Section 3 .01 0of the Henderson City Charter further holds, "The
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Mayor shall: (a) Serve as a member of the City Council and preside over its
1 0
meetings." [Emphasis Added].
Mr. Hafen was first elected to the Henderson City Council in June of 1 98 7, and
1 2
has been a member thereof, ever since. 9 Accordingly, Mr. Hafen has served the city of
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Henderson for more than twenty-five (25 ) years- seventeen (1 7) of them after the term
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limits amendment went into effect. 1 0 If a person "has served" in an office on a local
1 5
governing body or "will have served" in an office on that local governing body for
1 6
twelve (1 2) years or more by the time his current term expires, that person may not be
1 7
re-elected thereto. [Emphasis Added]. Accordingly, Mr. Hafen is not qualified, and
1 8
was not qualified, when he was elected in 201 3 to continue to hold any seat on the
1 9
Henderson City Council.
20
21
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8 In Lorton v. Jones, this Court referenced the Henderson City Charter stating, "See,
23 e.g., Henderson City Charter, Art. II, § 2.01 0(1 ) (providing that the Henderson city
24
Nev. Adv. Op. 8 , 3 22 P.3 d 1 05 1 , 1 05 3 (201 4), reh'g denied (Mar. 5 , 201 4).
council is made up of four council members and the mayor)." Lorton v. Jones, 1 3 0
25
9 True and correct copies of Mr. Hafen's biography as published by the City of
Henderson's website from both 2008 and 201 4 are attached to Petitioner's Appendix at 26
Exhibit "6," PA00003 2- PA00003 4.
27
1 0 See also, true and correct copies of the Election Returns for the City of Henderson
28
from 1 995 -201 3 , attached to Petitioner's Appendix at Exhibit "7," PA00003 5 -
PA000043 .
1 3
The very purpose of the term limits amendment, as presented to the voters by
2
ballot initiative — twice - was to "stop career politicians since no one will be able to
3 hold office for several terms. . . . local governing body members would have the
4
opportunity to focus on the issues instead of reelection." 1 1 [Emphasis Added].
 
5  
The term limit initiative passed overwhelmingly in 1994 and again in 1996.
6
Accordingly, on November 27, 1996, the twelve-year term limitation went into effect
7 and became law. The people of this State have spoken. Yet, despite the clear voice o
8 the people, Mr. Hafen has made it no secret that he has proudly become exactly wha
9 Article 15 , Section 3 (2) was enacted to prevent: a career politician.
 
10  
By his very own admission Mr. Hafen publically represents,
 
11  
It's been an honor to serve the citizens of Henderson for nearly
three decades and I'm as excited about continuing to serve as
 
12  
your Mayor . . .
 
13  
I am fortunate enough to be [in the] position to concentrate on
public service full-time and it's a unique and fulfilling position to
 
14  
be in.
15
[Emphasis Added]. 12 Further, Mr. Hafen was featured as a keynote speaker at the
16
20 13 Banner Conference, a seminar type conference to "Improve your professional
17
relationships and grow your business." 13 The program advertisement claims "The
18
program will be keynoted by Mayor Andy Hafen of Henderson, NV (sister city to Las
19
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 22 year career as City
Councilman and ultimately becoming a popular mayor." [Emphasis Added]. Id.
Petitioner understands and respects that this Court only exercises its discretion
to grant extraordinary Writ relief for very selective matters, and circumstances of
11 See, Exhibit "5 ," attached to Petitioner's Appendix at PA0 0 0 0 28 - PA0 0 0 0 3 1.
12 A true and correct copy of Mr. Hafen's biography published on his "Re-Elect
Mayor 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 20 13 is
attached to Petitioner's Appendix at Exhibit "9," at PA0 0 0 0 5 0 .
1
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absolute necessity. Petitioner does not move this Court for such relief lightly. In fact,
2
Petitioner pursued every possible alternative avenue prior to seeking the instant relief.
3  
NRS 293 C.185(2) requires Mr. Hafen to sign a Declaration of Candidacy
4
whereby he declares under penalty of perjury that he will:
5  
. . . qualify for the office if elected thereto, including, but not limited
to, complying with any limitation prescribed by the Constitution
6
 
 
and laws of this State concerning the number of years or terms for
which a person may hold the office . .
7
first requested that Mr. Hafen voluntarily resign from his position. In part, based upon
10
his declaration, under penalty of perjury, to comply with the term limit provisions of
the Nevada Constitution. 14 However, Mr. Hafen refused to do so. 15 It can be argue
12
that failing to resign after explicitly agreeing, under penalty of perjury, to comply with
13
any term limit provisions set forth in the Nevada Constitution, which obviously
14
includes Article 15, Section 3 (2), constitutes an intentional disregard of the law.
15  
In addition, Mr. Hafen's refusal to voluntarily resign from his office appears
16
even more disingenuous in light of the fact that the first year he ran for the seat o
17
Mayor in 2009, he acknowledged that he was still running for a Henderson City
18
Council position. His admission is contained within the filing of his Nevada Financial
19
Disclosure Statement with the Secretary of State on February 18, 2009. 16 The
20
pertinent portion thereof reads, "Section A (Public Office): List all public offices for
21
which this financial disclosure statement is required and check each box accordingly
22
i.e. annual, candidate or appointment filing. NRS 281A.620.1(g)." Id. In response, Mr.
23
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26
27
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14 True and correct copies of Petitioner's requests to Mr. Hafen to voluntarily resign
from office are attached Petitioner's Appendix at Exhibit "10," PA000055- PA000069.
15 A true and correct copy of Mr. Hafen's Response is attached to Petitioner's
Appendix at Exhibit "11," PA000070- PA000072.
16 A true and correct copy of Mr. Hafen's 2009 Financial Disclosure Statement is
attached to Petitioner's Appendix at Exhibit "12," at PA000074.
8
9
[Emphasis Added]. In an attempt to avoid the need for judicial intervention, Petitioner
15
1
Hafen answers that the Title of the Public Office is "Henderson City Councilman7
2
and checks the box indicating that he is a "Candidate." [Emphasis Added]. Id. He
3
did not indicate or imply that he believed or understood the position of Mayor to be a
4
separate office, nor a different governing body, apart from the City Council.
 
5  
At that point in time, Mr. Hafen was a current Council member who was elected
6 to that term in 2007. Yet, he was also running that year as a candidate for the seat of
7
Mayor, which he was ultimately elected to, later that year. This demonstrates that even
8
prior to this Court's recent decision in Lorton v. Jones, Mr. Hafen was very much
9
aware of, and formally acknowledged, the fact that the seat of Mayor is simply another
10
seat on the Henderson City Council. /d.
 
11  
As such, Mr. Hafen should be estopped from arguing that it would be
12
"inequitable" to remove him, because prior to this Court's decision in Lorton v. Jones,
13
he could not have known that the seat of Mayor was just another seat at the same City
14
Council table. By his own filing admission, which he signed declaring the information
15
therein was "accurate and correct," he was well aware of this fact, more than five (5 )
16
years prior.
 
17  
In addition, any argument that this matter should have been raised as a challenge
18
to Mr. Hafen's candidacy when he was running for the office is of no effect. Just
19
because someone lacks the resources to challenge unlawful conduct, does not
20
somehow make the conduct lawful. What if no one has the resources or ability to
21
formally challenge Mr. Hafen at the next election? Should he decide to run for another
22
seat on the Henderson City Council and win election again, is that legal or acceptable?
23
Does the fact that he was not challenged as a candidate mean that he gets to continue
24
to hold public office in direct violation of the Nevada Constitution?
 
25  
We all make choices. And we are also responsible for the consequences of the
26
choices we make. If a person make the choice to regularly drive faster than the speed
27
limit, they might get away with it for several years before finally being caught.
28
However, when law enforcement does eventually catch them, they are still punished
16
1
for violating the law- despite the fact that they had gotten away with it for several
2
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 not
4
mean that he should be permitted to continue to do so. We cannot allow lawmakers to
5 be lawbreakers.
6
III. CONCLUSION
7  
Once 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 o
9
his current term, will have served literally thirty (30) years on the Henderson City
1 0
Council more than twen 20 of them after the 1996 term limits amendmen
11
was enacted. Not only did Mr. Hafen effectively acknowledge and admit that he was
1 2 aware the seat of Mayor is just simply another seat on the Henderson City Council - as
1 3
evidenced by his 2009 Financial Disclosure Statement. He has publically represented -
1 4
and boasted -about the fact that he has devoted his life to becoming a "career
1 5 politician" with the City of Henderson.
1 6  
To allow Mr. Hafen to get away with such conduct, in direct defiance of the
1 7
express intent of Article 1 5 , Section 3 (2) and allow him to continue to his sea
1 8
representing the city of Henderson, is a gross violation of the Nevada Constitution and
1 9
a slap in the face to the voters of this state, who voted overwhelmingly in favor of term
20
limits. Twice.
21  
We cannot allow lawmakers to be lawbreakers.
22  
Based on the foregoing and any ordered arguments, Petitioner respectfully
23
requests that this Court grant Petitioner leave to proceed with this matter, as a quo
24
warranto action, to remove Mr. Hafen from office; or, in the alternative, grant the Writ
25
relief requested herein directing Attorney General Cortez Mast° and/or Secretary of
26
State Miller (as the Chief Elections Officer), to take action and mandate that Arthur
27
"Andy" Hafen be immediately removed from office on the legislative body of the city
28
of Henderson, Nevada.
1 7
Mr. Hafen has exceeded the twelve-year term limit restriction set forth in Article
15, Section 3(2) of the Nevada Constitution and because he was not qualified for re-
election therein, he is thus, not qualified to continue to unlawfully hold such seat.
DATED this 214 4 day of May, 2014 .
EPHWNIE RICE, ESQ.
HARDY LAW GROUP
Attorney for Rick Workman,
Relator/ Petitioner
18
IV. VERIFICATION
Under penalties of perjury, the undersigned declares that he is the
Relator/Petitioner in the foregoing Request for Leave to File a Writ of Quo Warrant°
or, Alternatively, Petition for Writ of Mandamus or Other Extraordinary Relief an
that I know the contents thereof; that the pleading is brought in good faith and that th
matters set forth therein are true of my own knowledge, except as to those matters
stated on information and belief, and that as to such matters, I believe them to be true.
Executed this ?/5 " - - day of May, 2014.
,
41 { . •
RICK lfORKMAN, Relator/ Petitioner
I
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V. CERTIFICATE OF SERVICE
 
2  
Pursuant to NRCP 5(b), I hereby certify that I am an employee of Hardy Law
3
Group and that on this day, I caused to be delivered by U. S. Mail, postage pre-paid, a
4
true and correct copy of the foregoing Request for Leave to File a Writ of Quo
5 Warranto or, Alternatively. Petition for Writ of Mandamus or Other
6
Extraordinary Relief to the individual(s) listed below at the following address(s):
7 The Honorable Catherine Cortez Masto
8 100 N. Carson Street
Attorney General of the State of Nevada
Carson City, Nevada 8 9701
9 Fax: (775) 68 4-1108
10 The Honorable Ross Miller
Nevada Secretary of State
11 101 North Carson Street, Suite 3
Carson City, NV 8 9701-3 714
12
Todd L. Bice, Esq.
13
Pisanelli Bice
3 8 8 3 Howard Hughes Parkway, Suite 8 00
14 Las Vegas, Nevada 8 9169
15
16
17
 
18
 
DATED this6- c4\_ Day of May, 2014.
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