Electronically FiledJul 01 2014 09:20 a.m.Tracie K. LindemanClerk of Supreme Court

Docket 65716 Document 2014-21398

Petition for Writ of Quo Warrant° and Response to the alternative Petition for Writ

of Mandamus, pursuant to this Court's order dated May 28, 2014.

I.

FACTS

Real party in interest, Arthur "Andy" Hafen is currently serving as the

Mayor of the City of Henderson. Petitioner's Appendix (hereinafter "PA") at 45.

Mr. Hafen had previously been elected Mayor of Henderson in the general election

held on June 2, 2009, and served the entire term. PA at 41, 45. Prior to being

elected Mayor in 2009, Mr. Hafen served as a member of the Henderson City

Council. PA at 45. He was first elected to the Council in June, 1987, and has

served continuously as a councilmember until being elected Mayor in 2009. Id.

In 2013, Mr. Hafen again ran for Mayor of Henderson. He was elected to

that position in the primary city election held on April 2, 2013, with 9,618 votes, or

54.84%. PA at 6; see also NRS 293C.175(4) (candidate who receives more than a

majority of votes in the primary election is declared elected). Petitioner Rick

Workman also ran for Mayor of Henderson in that election, and had the second-

highest number of votes, with 6,520 votes, or 37.18%. Id.

No challenge to Mr. Hafen's eligibility for office was filed in connection

with the 2013 election for mayor. See NRS 293C.186 (providing for challenges to

candidates, which may be filed by an elector and pursued by the city attorney if the

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city attorney finds it to be supported by probable cause).

The Attorney General is informed and believes, based on information from

the League of Cities, that Mr. Hafen is the only sitting mayor who has a vote on all

issues that come before their city council and who has served more than a

combined twelve years as mayor or city councilmember.

The Charter of the City of Henderson provides: "The legislative power of

the City is vested in a City Council consisting of four Council Members and the

Mayor." Henderson City Charter, Art. II, § 2.010(1), which is similar to the

charter of the City of Reno. See Lorton v. Jones, 130 Nev. Adv. Op. 8, 322 P.3d

1051, 1053 (2014), reh'g denied (Mar. 5, 2014).

II.

ARGUMENT

A. Workman's attempt to oust Mr. Hafen from office is barred by laches.

"Laches is an equitable doctrine which may be invoked when delay by one

party works to the disadvantage of the other, causing a change of circumstances

which would make the grant of relief to the delaying party inequitable." Carson

City v. Price, 113 Nev. 409, 412, 934 P.2d 1042, 1043 (1997) (internal quotations

omitted). In determining whether laches applies, this Court considers: "(1)

whether the party inexcusably delayed bringing the challenge, (2) whether the

party's inexcusable delay constitutes acquiescence to the condition the party is

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challenging, and (3) whether the inexcusable delay was prejudicial to others."

Miller v. Burk, 124 Nev. 579, 598, 188 P.3d 1112, 1125 (2008).

In Burk, this Court held that the Legislature was barred by laches from

arguing that the language in the term limits ballot initiative was confusing to voters

when they passed it in 1994 and 1996. Id. at 598-99. The court reasoned that the

challenge to whether the language was confusing was ripe pre-election, before

voters voted on the question, because the language was available and that is the

sort of challenge that is normally resolved in determining whether the initiative has

met all the requirements for placement on the ballot. Id. at 598.

By waiting until 12 years after the initiative passed, the court found that the

Legislature had acquiesced to the language. Id. It also found that it would be

prejudicial to the voters if the court were to agree with the Legislature and strike

the term limits just as they were about to be implemented, after the voters had

approved the language 12 years before and expected it to become effective

imminently. Id. at 599.

Similarly in this case, Petitioner Workman is barred by the doctrine of laches

from now seeking to oust Mr. Hafen from office. All of the facts necessary to

bring a challenge to Mr. Hafen's eligibility were apparent when he filed to run for

office in 2013. Also, NRS 293C.186 provides for a special, expedited challenge

procedure to test a candidate's qualifications and eligibility before the election. If

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the city attorney finds probable cause, the city attorney brings the action, rather

than the cost falling upon the challenger. However, Workman did not bring a

challenge at that time, nor did anyone else. Instead, he brings this challenge more

than a year after Mr. Hafen has been elected to office.

This constitutes inexcusable delay because all of the relevant facts were

available at the time and the law provides a special, expedited challenge process

specifically designed to deal with this type of eligibility determination, and at little

or no cost to the challenger.

The delay also constitutes acquiescence to the condition. Workman could

have brought a challenge during the period designed for such challenges, and

thereby could have timely tested Mr. Hafen's eligibility and potentially removed

him from the ballot. If the city attorney did not find probable cause, Workman

could have filed for declaratory relief or other relief before the election. But since

he did not, he acquiesced to the situation where Mr. Hafen was running for another

term for Mayor, after having served as Mayor or on the Council for more than 12

years.

Finally, if the court were to agree with Workman's challenge now, it would

prejudice Mr. Hafen and all the voters who voted for him. The voters cast their

ballots without any notice that a challenge to Mr. Hafen's eligibility might strip

them of their chosen representative in the middle of his term. Like in Burk, if the

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challenge had been timely brought, voters would have been able to choose a

different candidate who would be able to serve the whole term. Additionally, new

or different candidates may have also decided to get in the race.

This Court's recent decision in Lorton v. Jones, 322 P.3d 1051 (Nev. 2014)

does not excuse Workman's failure to timely challenge Mr. Hafen's eligibility. In

Lorton, this Court determined that the Mayor of Reno is a member of the City

Council of Reno, and therefore a person who has served on the Reno City Council

for 12 years or more is barred by term limits from being elected Mayor of Reno.

Id. at 1058-59. The Lorton case therefore resolved the legal question of whether

the office of Mayor in Reno is a distinct and separate office from that of

Councilmember for purposes of term limits. Id. at 1053.

Although the legal issue resolved in Lorton had not been decided at the time

of the April, 2013 primary when Mr. Hafen was elected, that is immaterial because

all of the necessary facts to bring the challenge were apparent. For example,

Workman's Petition in this case emphasizes the length of time that Mr. Hafen has

served in the City of Henderson, and the policy behind the term limits initiative.

Pet. at 13-14. He argues that this Court would be failing to enforce the people's

will if it did not now remove Mr. Hafen from office. Pet. at 17. But all of these

facts and all of these policy concerns were well-known to Workman at the time he

was running against Mr. Hafen for Mayor. Yet Workman did not complain until

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after Mr. Hafen has already been elected and after this Court decided, in a different

case, whether mayor and councilmember could be considered the same "office" for

purposes of term limits.

The delay is inexcusable because nothing prevented Workman from bringing

his challenge before the election, the normal time for resolving such disputes. But

now the facts have materially changed — Mr. Hafen was elected with more than

50% of the vote — with both Mr. Hafen and the voters who voted for him acting on

the assumption that he was eligible to serve and in fact would serve the term that

he was elected to.

This Court should follow its reasoning in Burk and reject Workman's

attempt to oust an elected office holder as barred by laches, because he could have

brought a proper challenge pre-election, but failed to do so. Both the Motion for

Leave to file a complaint in quo warrant° and the alternative Petition for Writ of

Mandamus should be denied for this reason alone.

B. Leave to file a complaint in Quo Warrant° should be denied because Petitioner lacks standing.

Workman asserts that leave should be granted because quo warrant° is the

only relief available to him. Petition, pp. 3-4. The error in this argument is that it

presupposes that Workman has standing to seek relief from the courts in the first

instance.

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1. Workman lacks standing to initiate a quo warranto action against Mayor Hafen because Workman has not pled facts which, if true, would show that he is entitled to the office of Mayor of Henderson.

Generally, a person lacks standing to bring an action in quo warranto unless

the person has pled facts that show that he is entitled to the office. See Lueck v.

Teuton, 125 Nev. 674, 679, 219 P.3d 895, 898 (2009); Doe v. Bryan, 102 Nev. 523,

525, 728 P.2d 443, 444 (1986) (justiciable controversy requires a claim of right by

a person with a legally protectable interest in the controversy).

It is not entirely clear whether Workman is asserting that he is entitled to be

declared the Mayor of Henderson. Initially, Workman does not appear to do so,

since he is requesting leave to file under NRS 35.090, rather than a right to file as a

claimant to the office under NRS 35.050. Pet. pp. 2-3 (requesting leave to file), pp.

8-9 (requesting Mr. Hafen be removed from office, but not requesting that

Workman be declared to be Mayor). As the court explained in State ex rel.

Holland v. City of Reno, 70 Nev. 167, 169, 262 P.2d 953, 954 (1953), the general

rule is that only the Attorney General may bring quo waiTanto, but that there is an

exception for a person who himself claims to be entitled to the office.

But Workman also asserts that he is "a competing office holder." Petition,

p. 4. He notes that he ran against Mr. Hafen for the office of Mayor, and that he

obtained the second-highest number of votes. Id. To the extent these statements

are intended to assert that Workman is entitled to be Mayor of Henderson, these

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arguments fail. Workman is not entitled to the office of Mayor because he did not

obtain the highest number of votes. As a losing candidate, he has no property

interest or other legally recognizable interest in the office of Mayor, and he is not a

"competing office holder." See Snowden v. Hughes, 321 U.S. 1, 6-7, 64 S.Ct. 397

(1944); Taylor v. Beckham, 178 U.S. 548, 577-78, 20 S.Ct. 890 (1900).

To the extent Workman is alleging that he has standing because he would

have been elected, had Mr. Hafen not run, that argument also fails. The outcome

of the election, had Mr. Hafen been barred from running, is speculative. Thus it is

an insufficient basis for standing under either NRS 35.050 or NRS 35.090.

In an analogous situation, this Court has held that where a deceased

candidate receives a majority of the votes, that does not mean that the candidate

with the next-highest number of votes is elected. Ingersoll v. Lamb, 75 Nev. I, 4,

333 P.2d 982, 984 (1959). The court in Lamb explained: "if a majority of those

voting, by mistake of law or fact, happen to cast their votes upon an ineligible

candidate, it by no means follows that the next to him on the poll should receive

the office Id. (quotations omitted). Although the votes for the deceased

candidate are not effective to elect the deceased person, "that is no reason why they

should, in effect, be counted for the former, who, possibly, could never have

received them." Id.

////

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Thus the fact that Workman ran against Mr. Hafen and got the second-

highest number of votes does not mean that, even should this Court find Mr. Hafen

was ineligible, Workman is entitled to be declared elected Mayor of Henderson.

Instead, a vacancy in the office would result. For this reason, Workman does not

have any legally protectable interest in or claim to the office of Mayor, and he

therefore lacks standing to seek a writ of quo warranto.

2. Workman lacks standing as a private citizen because quo warrant° is not available where the petitioner has only a generalized interest in seeing the laws enforced.

Workman also lacks standing to bring quo warrant° in his capacity as a

private citizen. "The Legislature has not authorized quo warranto petitions by

private citizens with only a general interest in seeing this state's laws upheld."

Lueck v. Teuton, 125 Nev. 674, 679, 219 P.3d 895, 898 (2009). As this Court

explained in Teuton, a person with only a general interest in seeing the laws upheld

may only bring quo waffanto under Chapter 35 with participation of the Attorney

General and with the leave of the court. Id. at 679 (citing NRS 35.040).

Workman is in the same position that Mr. Lueck was in Teuton. Id. In

Teuton, Mr. Lueck did not claim to be entitled to Judge Teuton's office, and

instead only claimed to have an interest as a citizen in the enforcement of the laws.

Id. The court held that Chapter 35 only allows individual citizens to bring quo

warranto in two circumstances: (1) when they claim entitlement to the office; or (2)

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with the participation of the Attorney General and leave of court. Id.

Since the Attorney General in Teuton declined to bring the action, and Mr.

Lueck was not claiming Judge Teuton's office, the court concluded: "Lueck

therefore does not fit within either provision of NRS Chapter 35 that addresses

who may institute a quo warrant° action to oust an individual from office, and

consequently, he does not have standing to institute such an action under that

chapter." Id. Therefore, like in Teuton, Workman lacks standing to institute quo

warrant°.

The court in Teuton reached the merits of the petition, even though it found

that Mr. Lueck lacked standing and denied his motion for leave to bring quo

warrant°. Teuton, 125 Nev. at 677, 219 P.3d at 897. But, contrary to Workman's

arguments, the court's decision to reach the merits in Teuton does not control this

case. Cf Pet. at 11. Teuton involved a district judge's right to continue to hold the

office after the next general election following his appointment. Id. The court

therefore proceeded on the basis of its inherent powers to "preserve the integrity of

the judicial process" and its "supervisory authority and duties over the proper

administration of justice." Id. Here, the Petition does not involve a judicial office

or officeholder, therefore Teuton does not permit Workman to proceed despite his

lack of standing.

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3 Workman proposes an incorrect standard for review of the Attorney General's refusal to bring quo warranto.

Next, Workman argues that he may nevertheless be granted permission to

seek quo warranto if the Court determines that the Attorney General's refusal to

bring a quo waffanto action "under the circumstances was improper and not in the

public interest." Pet. p. 3. Workman relies on State ex rel. McMillan v. Sadler, 25

Nev. 131, 58 P. 284, 286 (1899) 1 , State ex rel. Holland v. City of Reno, 70 Nev.

167, 169, 262 P.2d 953, 954 (1953), and an unpublished Ninth Circuit decision.

Neither Sadler nor Holland is applicable here. First, Sadler was an early

case dealing with a petitioner who claimed to be entitled to the office of governor.

58 P. at 285-86. The Attorney General had refused to bring the action, and at the

time, no statute granted standing to do so by a person claiming entitlement to the

office. Id. at 286. Under those circumstances, the court permitted the petitioner to

bring the action, because he had shown by complaint that he was entitled to the

office, and once the Attorney General refused to bring the action, he had no

remedy. Id.

Holland involved a complaint and information filed by owners of property

which the City of Reno proposed to annex. 262 P.2d at 953. The court found that

the petitioners lacked standing because they had never presented the matter to the

Modified on unrelated matters by 25 Nev. 131, 59 P. 546 (1900) and 25 Nev. 131,63 P. 128 (1900).

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Attorney General. Id. at 954. The court relied on Sadler, characterizing that

decision as "a review of the attorney general's actions and, in effect, a

determination that his refusal under the circumstances was improper and not in the

public interest." Id. Based on this characterization of Sadler, the court in Holland

then stated that the court may review the Attorney General's decision not to bring

the case, and that the review "may be had upon application of a relator for leave to

bring action." Id.

However, Holland is not applicable to this case for three reasons. First, that

statement in Holland was merely dictum, because the court had already concluded

that petitioners lacked standing since they failed to even present the issue to the

Attorney General.

Second, the court in Holland apparently overlooked the fact that in Sadler,

the petitioner was in the unique position of claiming entitlement to the office

himself, clearly had standing to assert that claim, but that, at the time, he had no

remedy once the Attorney General refused to bring the action. That has since been

con-ected by the enactment of NRS 35.050, which grants standing to persons

claiming entitlement to the office themselves.

Third, Holland is distinguishable from this case because the plaintiffs in

Holland were owners of the land that the city proposed to annex, and therefore

apparently had a direct and personal interest in the annexation, or at least an

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interest that was distinguishable from the public at large. Compare Teuton, 125

Nev. at 679, 219 P.3d at 898 (noting that Lueck failed to demonstrate an interest in

quo warrant° which would exempt him from the requirements of NRS Chapter 35).

By contrast, in this case, Workman has no individual stake in seeing Mr. Hafen

removed from office. Like in Teuton, he has only a generalized interest in

enforcement of the laws which is indistinguishable from that of the public at large.

Furthermore, the reasoning in Holland appears to conflict with this Court's

later analysis in Teuton, where it held that a private party cannot bring quo

warrant°, except with both the participation of the Attorney General and with leave

of court. Teuton, 125 Nev. at 679, 219 P.3d at 898. In Teuton, the court did not

review the propriety of the Attorney General's refusal to bring the action. See

generally id.

The analysis of Teuton is the more recent analysis of standing to bring quo

warranto, and it is also the most consistent with NRS 35.040. That statute

provides:

Such officer may, upon the officer's own relation, bring any such action, or the officer may, on the leave of the court, or a judge thereof, bring the action upon the relation of another person; and, if the action be brought under subsection 1 of NRS 35.010, the officer may require security for costs to be given as in other cases.

NRS 35.040 (emphasis added).

fill

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The Court should reject Workman's argument that it must review the

Attorney General's refusal to initiate quo warrant° to determine whether it was

improper and against the public interest. Pet. at 3-4. The cases Workman relied

upon involved petitioners who clearly had a direct interest in the case (and

therefore would have standing), but where the statute did not provide them a direct

right to sue and the Attorney General declined to do so.

Here, Workman lacks standing because he has no direct interest in ousting

Mayor Hafen. As explained in Teuton, when the matter is one of enforcement of

the laws generally, standing is reserved only to the Attorney General to bring an

action on behalf of the State as a whole, to address matters of concern to all

citizens. Teuton, 125 Nev. at 679, 219 P.3d at 898.

This is proper because quo warranto is fundamentally an action by the

sovereign to correct a harm against the public and the state by the unlawful

exercise of a franchise granted by the state. Holland, 70 Nev. at 170, 262 P.2d at

954. The narrow standing requirement also protects office holders from frivolous

or harassing lawsuits attempting to oust them from office, by requiring review by

the Attorney General. See Lewis v. Drake, 641 S.W.2d 392, 395 (Tex. App. 1982)

("[public officers] should not be called on to defend their authority unless a proper

legal officer of the State has determined that the question raised is serious and

deserves judicial consideration"). As discussed below, this is also consistent with

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other states' cases which hold that mandamus will not lie to compel the Attorney

General to bring quo warrant°.

4. This is not an extraordinary case requiring exercise of the Court's original writ authority when no party has standing.

As discussed in Teuton, NRS Chapter 35 does not permit a person to seek a

writ of quo warranto absent participation by the Attorney General. Teuton did not

address the court's original power to issue writs under Nev. Const. Art. 6, § 4. See

Halverson v. Hardcastle, 123 Nev. 245, 258, 163 P.3d 428, 438, n. 8 (2007)

(explaining that civil actions under NRS Chapter 35 are distinct from the courts'

original power to issue writs under the Nevada Constitution, and that a "true" writ

of quo warranto pursuant to Art. 6 of the Constitution may issue where the remedy

provided in NRS Chapter 35 is inadequate).

However, Article 6, § 4 does not assist Workman in this case, again because

he has no special interest distinct from that of the general public in seeing Mr.

Hafen removed from office. In Halverson, for example, this Court found that

Judge Halverson had standing to seek a writ of quo warranto because she was

challenging certain actions by the chief judge as intrusion upon her own office as

district judge. 123 Nev. at 257, 163 P.3d at 437, n. 6. 2

2 The court in Halverson mentioned the distinction between "civil actions" under Chapter 35, which are created by the Legislature, and the court's original jurisdiction to issue writs under Article 6 of the Nevada Constitution. But it did not clearly state under which mechanism (or both) Judge Halverson could proceed.

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In this case, Workman has no such interest, and therefore he lacks standing

to seek a remedy under either Chapter 35 or Article 6, § 4. See Teuton, 125 Nev. at

679, 219 P.3d at 898 (petitioner had no standing where his interest was

indistinguishable from that of the public in generally seeing the laws enforced); see

also Heller v. Legislature of State of Nev., 120 Nev. 456, 461, 93 P.3d 746, 749

(2004) (stating, in connection with a petition for writ of mandamus, that a person

must demonstrate a "beneficial interest" in order to have standing, and that this

affects the court's original jurisdiction to issue writs) (citing Delogu v. City of

Portland, 843 A.2d 33, 34 n. 1 (Me.2004) and other cases).

Furthermore, Workman had a speedy and adequate remedy available at law:

the challenge procedure in NRS 293C.186. The only reason this legal remedy is

no longer available is that Workman failed to take advantage of it in a timely

manner.

Finally, Workman's lack of standing cannot be overcome by simply arguing

that this is a case of great importance, that there are no factual disputes, etc. Cf.

Pet. at 11. As the Rhode Island Supreme Court held in State ex rel. Webb v. Cianci,

591 A.2d 1193, 1198 (R.I. 1991), these concerns are not the proper criteria for

determining whether to grant leave to challenge a public officer's right to hold

Presumably, because she was challenging an alleged usurpation of her own public office by the chief judge, she had standing to proceed under either NRS 35.050 or Article 6, § 4.

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office. Instead, the court explained that it had only granted leave to file a petition in

equity in the nature of quo warranto without the Attorney General's intervention in

cases where the petitioner was himself claiming title to the office. Id. at 1198-99.

The court stated:

The petitioner argues that the matter before us constitutes a proper case because it raises important state constitutional issues and lacks any factual dispute. In doing so, he misinterprets the criteria we have used in prior decisions as a basis for determining what constitutes a proper case.

We must reiterate that the petition in equity to challenge Cianci's title to the office of mayor of the city of Providence without the intervention of the Attorney General seeks to vindicate a purely public right on behalf of the citizens of Providence. The petitioner makes no claim that he seeks to vindicate a private right on his own behalf by claiming title to the public office in dispute. Therefore, following long-established precedent, we conclude that this petition in equity must be denied.

Id. at 1198-99.

Like in Cianci, this Court should deny Workman's petition because he has

no interest in the matter distinct from that of the general public.

1111

1111

1111

NH

1111

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WORKMAN'S PETITION FOR WRIT OF MANDAMUS SHOULD BE DENIED

Workman requests that, if the Court denies his motion for leave to seek a

writ of quo warrant°, it grant him alternative relief in the form of a writ of

mandamus commanding the Attorney General or Secretary of State to bring a

petition for writ of quo warrant° against Mr. Hafen. Pet., pp. 7-8.

A. The Secretary of State has discretion in enforcement of election laws therefore mandamus will not lie to require the Secretary to initiate quo warranto.

Mandamus is an extraordinary remedy, and it is up to this Court's discretion

whether to entertain a petition for writ of mandamus. State ex rel. Depit of Transp.

v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). "A writ of

mandamus will issue when the respondent has a clear, present legal duty to act."

Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603, 637 P.2d 534, 536

(1981). The duty in question must be ministerial, mandatory, and admitting of no

discretion. State Bar of Nevada v. List, 97 Nev. 367, 368, 632 P.2d 341, 342

(1981); NRS 34.160. Mandamus will not lie to control discretionary action, unless

that discretion is manifestly abused or exercised arbitrarily or capriciously. Id.

Mandamus is not available to compel the Secretary of State to initiate quo

warranto. With the exception of persons claiming to be entitled to the office, quo

warrant° is generally reserved to the Attorney General alone.

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The Secretary of State is the Chief Elections Officer of the State.

NRS 293.124. As such, he is responsible for the execution and enforcement of all

state and federal laws governing state elections. Id.

However, no statute or constitutional provision exists which imposes a clear,

present legal duty on the Secretary to act in a case such as this one, where the

election in question has already concluded, and no challenge to Mr. Hafen's

eligibility was filed. Other than pointing out that the Secretary is the Chief

Elections Officer, Workman provides no authority for why a writ of mandamus

should issue requiring the Secretary to attempt to oust Mr. Hafen from office. Nor

has Workman shown that the Secretary has abused his discretion in declining to

initiate quo warranto.

Instead, this Court has noted that typically, quo wan -anto is the exclusive

remedy for attempting to remove a person from office, and that mandamus is

appropriate only before the office is filled. Heller, 120 Nev. at 463, 93 P.3d at

751. In any event, absent a statute imposing a clear duty to act, the Secretary as

Chief Elections Officer has discretion in bringing enforcement actions. Thus

mandamus will not lie against the Secretary to require him to attempt to oust Mr.

Hafen from office.

1111

1111

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B. In cases of general interest, the Attorney General has complete discretion in whether to bring a petition for writ of quo warranto, and that discretion is not subject to mandamus.

As a threshold matter, this Court should reject the proposition that

mandamus is available as an "alternative" to compel the Attorney General to bring

a quo warrant° action. The discretion of the Attorney General in whether to bring

a petition for writ of quo warranto is the subject of a special exception to the

general rule that mandamus is available to control an abuse of discretion.

At common law, quo warranto was at first a prerogative writ of the crown,

but then evolved into an "action in the nature of quo warranto," which was a

criminal proceeding brought by the attorney general. 51 A.L.R.2d 1306. Such a

proceeding was intended to correct unlawful usurpations of office, which was

regarded as a crime against the sovereign, and a private citizen could no more

institute quo warranto than he could prosecute any other crime. Id.; see also

People ex rel. Miller v. Fullenwider, 160 N.E. 175, 176 (Ill. 1928).

Like the decision to prosecute a crime, whether to bring quo warrant° was

generally considered a case of purely public interest, left to the sole discretion of

the prosecutor. "Purely public interest" matters are those were the petitioner has

no direct or personal interest in the resolution of the case, and instead has only the

same general interest of every citizen in the enforcement of the laws. See People

ex rel. McCarthy v. Firek, 125 N.E.2d 637, 640-41 (Ill. 1955). By contrast, a

21

"private interest matter" is where an individual has a direct and personal interest in

the outcome of the case, such as where the petitioner is himself claiming to be

entitled to the office. Id.

In line with this history, many states still hold that in matters of purely

public interest, the Attorney General has complete discretion on whether to act.

See e.g. Lewis v. Drake, 641 S.W.2d 392, 395 (Tex. App. 1982); Henderson v.

Miller, 228 Ill. App. 3d 260, 267, 592 N.E.2d 570, 574 (1992); People v. Wood,

104 N.E.2d 800, 804 (Ill. 1952); State ex rel. Shevin v. City of Sanibel, 318 So. 2d

177, 178 (Fla. Dist. Ct. App. 1975); State ex rel. Webb v. Cianci, 591 A.2d 1193,

1199 (R.I. 1991); Cleaver v. Roberts, 203 A.2d 63, 68 (Del. 1964). For the reasons

discussed below, this Court should follow these states.

Workman cites to an unpublished Ninth Circuit case (D'Agostino v.

Delgadillo, 111 F. App'x 885, 887 (9th Cir. 2004)), which in turn relied upon

Nicolopulos v. City of Lawndale, 91 Cal.App.4th 1221, 111 Ca1.Rptr.2d 420, 422-

25 (2001) for the proposition that "an arbitrary denial of permission [to institute

quo warranto] by the Attorney General can be challenged in a state mandamus

action." However, California's quo wan -anto statutes differ from Nevada's, and

therefore mandamus is improper here.

California's quo warranto statutes require that even a person who has a

direct and personal interest in the outcome of the case must receive leave to sue

22

from the Attorney General before bringing the action. Nicolopulos, 91 Cal. App.

4th at 1228-29, 111 Cal. Rptr. 2d at 425; see also Cal. Code Regs. tit. 11, § 1

(regulations governing presentment of application for leave to sue to Attorney

General). Thus, in Nicolopulos, a California court of appeals held that, even

though the petitioner claimed title to the office, he was required to first seek leave

to sue in quo warranto from the Attorney General. 91 Cal. App. 4 th at 1229, 111

Cal. Rptr. 2d at 426.

The California court also pointed out that the Attorney General had

generally granted leave to sue in such circumstances, and that there was no reason

to believe the Attorney General would not similarly grant leave in that case. Id.,

91 Cal. App. 4th at 1229, 111 Cal. Rptr. 2d at 425. The court then stated that

mandamus would be available should the Attorney General abuse his discretion by

denying leave. Id.

Thus mandamus would be available where: (1) there was an arbitrary denial

of leave to sue (as opposed to bringing the action directly) (2) to a person who had

a direct and personal interest in the outcome of the case. By contrast, Nevada

directly grants such a person standing to sue through NRS 35.050, so this process

is unnecessary. Furthermore, as discussed above, Workman has not pled facts

showing that he is or may be entitled to the office of Mayor. This case is therefore

distinguishable from Nicolopulos on both the law and the facts, since this case

23

involves only a general interest in enforcement of the laws.

The distinction between private and public interest cases is well-illustrated

by Illinois' line of cases discussing the effects of changes in that state's quo

warranto statutes. In McCarthy, 125 N.E.2d at 640, the Illinois Supreme Court

explained that, under the old statutes, even individuals who had a direct and

personal interest in the matter had to request that the Attorney General or State's

Attorney bring quo wan-anto on their behalf. If these officials refused to do so,

mandamus would lie to compel them to bring the action, if the petitioner pled facts

showing he was entitled to the office. Id.

The court then pointed out that the new quo warranto statutes permitted

persons with a direct interest in the matter to bring the action themselves. Id. It

explained that the purpose of this change was "to eliminate the cumbersome

practice of filing mandamus actions to compel the public law officers to institute

quo warrant° proceedings upon the relation of private individuals." Id.

Accordingly, the mandamus procedure was eliminated so that individuals

with a private interest could bring the action directly. Id. But in matters of only

general public interest, the decision of the Attorney General was not reviewable.

See e.g., Henderson v. Miller, 592 N.E.2d 570, 574 (Ill. App. 1992) (stating that

the state's attorney and Attorney General have "complete, arbitrary and unfettered

discretion as to whether they shall institute the action."); People v. Wood, 411111.

24

514, 526, 104 N.E.2d 800, 806 (1952) (where petitioner had no direct interest,

denied both appeal and writ of error).

In Heller, 120 Nev. at 464, 93 P.3d at 751, n. 21, this Court favorably cited

Lewis v. Drake, 641 S.W.2d 392, 395 (Tex. App. 1982), where a Texas court of

appeals explained:

Public officers should be free to perform their duties without having their authority questioned incidentally in litigation between other parties. They should not be called on to defend their authority unless a proper legal officer of the State has determined that the question raised is serious and deserves judicial consideration as required by article 6253. This settled policy of the State is exemplified by cases holding that the decision of the Attorney General or the district or county attorney to present the information under that statute is a matter of discretion to be exercised for the protection of the public and cannot be controlled by mandamus.

Id. (emphasis added, citations omitted).

In short, California's quo warrant° procedures are similar to the old Illinois

statutes discussed above in that they require a person who has a direct and personal

interest in the case to request the Attorney General to bring quo warrant° on the

person's relation. Nevada, like Illinois, has adopted a statute permitting such

persons to bring a quo warranto action themselves. NRS 35.050. Thus Nevada's

laws similarly eliminate the need for mandamus to control an abuse of discretion

by the Attorney General's authority, while affording an avenue for relief to

claimants who have alleged a direct injury or interest in the matter.

25

Here, where the case involves only a general public interest, mandamus is

not proper. Like the courts in Illinois, Texas, Pennsylvania, and the other cases

cited above, this Court should hold that mandamus is not available as an

"alternative" remedy when the matter is one of general public interest.

Similar to a prosecutor's decision whether to charge a crime, the Attorney

General's discretion is complete in such cases. This strikes an appropriate balance

between the interests of the general public in ousting those who unlawfully hold

office, while protecting officials from meritless attacks on their claim to office. If

the Attorney General's refusal to institute quo warranto could be reviewed on

mandamus, even in a case where the petitioner has no particular interest in the

office in question, the practical result would be to effectively circumvent the rule

that only the Attorney General may bring quo warranto actions. This is because the

requestor will always be able to address the merits of his claim through the

ostensible "review" of the Attorney General's decision. By analogy, this would be

similar to allowing any citizen the authority to request judicial review every time a

district attorney decides not to prosecute a particular crime. The Court should

therefore deny Workman's petition for writ of mandamus.

Since the Attorney General, as the proper representative of the State, has

declined to bring a quo warranto action, and the petitioner has no interest in the

matter distinct from that of the general public, there is no party with standing to

26

invoke the Court's jurisdiction. Therefore the petition must be dismissed. See

Heller, 120 Nev. at 462, 93 P.3d at 750 (determining standing to seek a writ

petition as affecting the court's original jurisdiction); Doe, 102 Nev. at 525, 728

P.2d at 444 (a justiciable controversy requires a claim of right by a person with a

legally protectable interest in the controversy).

IV.

THE MOTION FOR LEAVE AND PETITION FOR WRIT OF MANDAMUS SHOULD BE DENIED BECAUSE THE RULE

ANNOUNCED IN LOR TON APPLIES PROSPECTIVELY ONLY

At the time Mr. Hafen ran for and was elected Mayor of Henderson in April,

2013, the legal question whether the office of Mayor is distinct and separate from

the office of Councilmember had not been determined. Only after Mr. Hafen had

been elected did this Court address the issue, in a different case (albeit one

involving a city charter that is, for these purposes, the same as Henderson's city

charter). Thus the critical question is whether the decision in Lorton applies

retroactively to effectively void an election that occurred before the decision was

rendered, and to oust a sitting officeholder who had been otherwise duly elected.

The general rule is that judicial interpretations of law in civil cases should be

given retroactive application. Miller v. Ashurst, 86 Nev. 241, 244, 468 P.2d 357,

359 (1970). However, in certain cases, prospective application is warranted.

Ziglinski v. Farmers Ins, Grp., 93 Nev. 23, 24, 558 P.2d 1147, 1148 (1977).

27

In determining whether a decision should be applied retroactively, or

prospectively only, the correct analysis involves a three-part test:

(1) "the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed;" (2) the court must "weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation;" and (3) courts consider whether retroactive application "could produce substantial inequitable results."

Breithaupt v. USAA Prop. & Cas. Ins. Co., 110 Nev. 31, 35, 867 P.2d 402,

405 (1994) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1970). 3

Thus, as an initial matter, it is the Chevron Oil test, adopted by this Court in

Breithaupt, which is the correct standard in this case. To the extent Workman

relies on cases dealing with the retroactivity of newly enacted statutes or

constitutional provisions, that reliance is misplaced. See Pet. pp. 6-7.

3 The court in Breithaupt recognized that the U.S. Supreme Court had "expressed dissatisfaction" with the Chevron Oil test, but nevertheless applied it when reviewing whether a state court decision should be applied retrospectively. Id. at n. 3. Before Breithaupt was decided, Chevron Oil was overruled by Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 99-100 (1993). As the Court explained in Harper, even if Chevron Oil was no longer the correct standard for federal cases, states are still free to apply whatever standard they wish for determining retrospective or prospective application of their own decisions. Harper, 509 U.S. at 100. Since Breithaupt was decided after Harper, it appears that this Court intends to continue to use the Chevron Oil standard when analyzing retroactivity of its own decisions.

28

It should also be noted that the "rule" in question here is not the term limits

provision in general. Cf Pet. p. 7. Rather, the rule in question is the specific rule

of law announced by Lorton: that when the mayor is also a member of the city

council, it may be considered the same office as the office of councilmember for

purposes of term limits.

A. Applying Lorton to unseat Mayor Hafen from office would constitute a retrospective application of that decision.

Retroactive application occurs when the decision is applied to conduct that

occurred before the rule was announced. See Beavers v. Johnson Controls World

Servs., Inc., 881 P.2d 1376, 1382, n. 7 (N.M. 1994) (defining "modified"

pro spectivity, pure pro spectivity, and retroactivity of rulings).

Workman argues that there is no retroactivity issue in this case, because

applying the rule in Lorton to unseat Mayor Hafen "does not constitute

retrospective application of Article 15, Section 3(2), it simply 'draws upon past

facts.' Pet. at 7,11. 10-13 (quoting Miller v. Burk, 124 Nev. 579, 188 P.3d 1112

(2008)). Specifically, Workman points to the fact that by the time he was elected

in 2013, Mr. Hafen had already served either as Mayor or on the City Council of

Henderson for more than 12 years. However, this argument should be rejected.

First, Workman applies the wrong standard. He cites to Miller v. Burk, 124

Nev. 579, 188 P.3d 1112 (2008) and Public Employees 'Benefits Program v.

LVMPD, 124 Nev. 138, 179 P.3d 542 (2008), neither of which involved

29

retrospective application of a judicial decision. Instead, they both involved

legislation: the term limits amendment to the constitution, and a statutory

amendment.

Here, the correct standard is that applicable to judicial decisions, not

legislative acts. While these tests are similar in some respects, it is the Chevron

Oil factors that are controlling here. Breithaupt, 110 Nev. at 35, 867 P.2d at 405.

But in any event, Burk and PEBP are distinguishable because neither involved a

new rule which applied to purely past conduct.

PEBP involved an amendment to a statute which required local governments

to begin paying health care premium subsidies for retirees on the effective date of

the amendment, even though the retirees retired prior to the amendment's effective

date. PEBP, 124 Nev. at 154, 179 P.3d at 553. The court explained that this was

not a "retroactive" application because it did not require the local government to

pay premium subsidies for periods before the effective date; rather, it was a

prospective requirement to begin paying subsidies for all existing retirees. Id. 124

Nev. at 155, 179 P.3d at 553-54.

Burk involved the question of whether the term limits amendment, which

became effective in December 1996, applied "retroactively" to count in the 12-year

maximum the term to which a person was elected in November 1996, before its

effective date. Burk, 124 Nev. at 590, 188 P.3d at 1119. The court held that the

30

amendment only applied to terms which commenced after its effective date, and

therefore it was not a retrospective application. Id., 124 Nev. at 592-3, 188 P.3d at

1121. In other words, the term limits amendment was given a "pure" prospective

application, since it only started "counting" years served in terms that commenced

after its effective date.

The relevant event in this case is the April 2013 election, not the fact that

Mr. Hafen had served either as Mayor or on the City Council of Henderson for

more than 12 years. Nev. Const. Article 15, § 3(2) provides: "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, 12 years or

more, unless the permissible number of terms or duration of service is otherwise

specified in this Constitution." (Emphasis added.)

Notably, the provision does not prohibit a person from serving more than 12

years. In fact, it expressly acknowledges that in some cases, a person will serve

more than 12 years. Instead, it only prohibits a person from being elected to the

office if he or she has served more than 12 years in that office.

In this case, it is not a matter of drawing on past facts by counting the

number of years Mr. Hafen has served to date. Instead, applying the rule in Lorton

to Mr. Hafen would be a truly retroactive application because it would be

tantamount to declaring the 2013 election void, based on a rule that was announced

31

after the election was completed, after Mr. Hafen was declared elected, and after he

took office.

Thus the question is whether, under the Chevron Oil factors, the Lorton

decision applies retroactively to invalidate the 2013 election for Mayor of

Henderson.

13. The rule in Lorton was an issue of first impression and was not clearly foreshadowed.

The decision in Lorton established a new principle of law by deciding an

issue of first impression whose resolution was not clearly foreshadowed. First, the

language in Lorton itself shows that the court intended the decision to be

prospective-only. In discussing the propriety of writ relief, the court stated that it

would hear the petition because "resolution of this petition will also help define the

parameters of Article 15, Section 3(2), so that future potential candidates and

challengers will be able to understand the provision's effect." 130 Nev. Adv. Op.

8, 322 13 .3d at 1053 (emphasis added).

Immediately after this sentence, the court specifically mentioned the City of

Henderson and other cities that have charters similar to Reno's charter. Id. The

court's repeated reference to future events (i.e., "will help define" and "future

potential candidates and challengers"), as opposed to past or present (e.g.,

"officers" or "mayors" instead of "future" "candidates" and "challengers") shows

that the rule in Lorton was not intended to retroactively oust sitting officeholders.

32

The resolution of the issue was not clearly foreshadowed. In 2008, the

Attorney General's Office wrote an opinion concluding that the mayor of Reno

was a separate office from that of councilmember. 4 The Legislative Council

Bureau issued an opinion coming to the opposite conclusion. 5 Lorton itself was as

5-2 decision. See Lorton, 130 Nev. Adv. Op. 8,322 P.3d at 1060.

If anything, dicta in Miller v. Burk, 124 Nev. 579, 599, 188 P.3d 1112, 1125

(2008) tended to indicate that the offices would be considered to be separate. In

Miller v. Burk, the court stated: "Article 15, Section 3(2) plainly states that if a

person has served, or at the conclusion of his or her current term will have served,

12 years or more in an office or a position on a local governing body, that person

may not be reelected to that office or position." Id. at 599 (emphasis added).

In the Lorton case, real party in interest Dwight Dortch argued that this

statement indicated that the court had already decided the issue and that each

"position" on a local governing body was a separate and distinct position. See

Lorton, 130 Nev. Adv. Op. 8, n. 5. The court rejected that argument, pointing out

that it was merely dicta, and the issue was not directly addressed in Burk. Id.

4 The opinion was not a published, formal opinion. Although issued in 2008, it was not disclosed until 2012. See http://blogs.rd.com/renomemo/2012/11/20/attorney-general-term-limited-reno-city-council-members-can-still-run-for-mayor/

s It appears that the LCB opinion was not published at the time it was written either. However, it was published by the Reno Gazette Journal in October, 2013. See http://blogs.rgj.corn/renomemo/2013/10/16/legal-opinion-termed-out-reno-city-council-members-cannot-be-reno-mayor/

33

Thus the resolution of the issue in Lorton was not clearly foreshadowed at

the time that Mr. Hafen ran for Mayor of Henderson in April, 2013. Lorton

established a new principle of law, satisfying the first criterion of Chevron Oil for

prospective application.

C. The purpose behind the rule in Lorton would be adequately enforced if it were given prospective-only application.

The second of the Chevron Oil factors requires the court to "weigh the

merits and demerits in each case by looking to the prior history of the rule in

question, its purpose and effect, and whether retrospective operation will further or

retard its operation." Breithaupt, 110 Nev. at 35, 867 P.2d at 405.

The purpose of the rule in Lorton is to effectuate the voters' intent in passing

the term limits amendment to "stop career politicians." Lorton, 130 Nev. Adv. Op.

8; 322 P.3d at 1057. The court analogized its rule to prohibiting reelection to

different seats or different wards on the same local governing body. Id. at 1058.

The Attorney General is informed and believes, based on information from

the League of Cities, that Mr. Hafen is the only person currently holding office as

mayor who previously served twelve or more years as councilmember (or vice-

versa). Lorton settled the legal question of when mayor and councilmember are

considered the same office for purposes of term limits. That rule will be

adequately enforced even if it is given prospective-only application, because it will

prevent Mr. Hafen from being elected again in the future, and there are no others

34

who are similarly situated.

The court in Lorton applied its decision to the parties before it in that case,

effectively barring the real parties in interest from being placed on the ballot for

the office of Mayor of Reno. This is an example of modified prospectivity (see

Beavers, 881 P.2d at 1382, n. 7) and was appropriate because the election had not

yet occurred, and there was still time to determine who would be eligible to be on

the ballot.

Of course, prospective application of Lorton would mean that Mr. Hafen

would not be removed from office. However, the voters of Henderson have

already determined that Mr. Hafen should be re-elected to office, and Mr. Hafen's

situation is apparently unique across the State. Furthermore, Mr. Hafen is in a

different position than the real parties in interest in Lorton because he has already

been elected to office, whereas the election had not yet occurred in Lorton. For

these reasons, prospective application does not substantially frustrate the purpose

of the rule announced in Lorton. Instead, the interests behind the rule are

adequately protected by prospective application.

D. Retroactive enforcement of Lorton would cause inequitable results.

Finally, the Court must determine whether retroactive enforcement of its

decision in Lorton would produce substantial inequitable results. Breithaupt, 110

Nev. at 35, 867 P.2d at 405. In this case, no one challenged Mr. Hafen's eligibility

35

at the time he ran for office. He won in the primary election with nearly 55% of

the votes. Removing Mr. Hafen from office now would deprive those voters who

chose him of their preferred representative.

Of course, term limits in general always have the effect of limiting voters'

choices. The rationale is that the detriment caused by limiting choices in any

particular race is outweighed by the benefits of reducing the power of incumbency,

bringing new candidates into politics, and so forth. The people themselves enacted

the term limits provisions. Arguably, if Mr. Hafen is not removed from office,

then the people's will on term limits is defeated.

But in this case, the balance of the equities requires prospective application.

It is evident from the people's vote that they approved of Mr. Hafen continuing to

serve,6 and no one brought a challenge to his candidacy, even though all the

necessary facts were apparent at the time he filed for office.

6 Workman may argue in reply that Mr. Hafen has no "mandate" from the voters because he was elected in a primary election where turnout was only 12.35%. However, he received over half the votes in that election, and therefore was deemed elected pursuant to NRS 293C.175(4). Furthermore, turnout in Henderson's primary elections has historically (1995 through 2013) ranged from approximately 9% to a high of 19.3%. PA at 36-43; see also http://www.cityofhenderson.com/city clerk/municipal elections/Historical Info/el ections historical main jmge.php (last visited 06/27/2014). Thus the turnout at the election in which Mr. Hafen was elected was typical. Even if one disagrees with the policy that a candidate obtaining more than half the votes in the primary is declared elected, that is the policy the Legislature chose and the fact remains that removing Mr. Hafen from office now would frustrate the will of a majority of the voters who took the time and effort to participate in the election.

36

The U.S. Supreme Court and other courts have recognized that applying a

judicial decision retrospectively to invalidate a prior election is a remedy of

substantial consequence. For example, in Allen v. State Bd. of Elections, 393 U.S.

544, 572, 89 S. Ct. 817, 835 (1969) the Court found that certain states had violated

the Voting Rights Act, but nevertheless declined to apply its decision

retrospectively to set aside elections held in violation of the Act. But see Perkins v.

Matthews, 400 U.S. 379, 397, 91 S. Ct. 431, 441 (1971) (remanding to the district

court to determine proper remedy, including the potential for invalidating prior

elections, based in part on the fact that Allen had since clarified the states'

obligations).

Similarly, in Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S. Ct. 1897,

1901 (1969), the Court invalidated a statute which permitted only property owners

to vote in certain elections on the issuance of bonds. However, it applied its

holding prospectively to situations in which elections had not been held, state law

still provided time for challenging the election results, or a suit had been filed

within such time frames, but was not yet final. Id.

The Supreme Court of Rhode Island also recognized that public policy

favors the finality of elections. State ex rel. Webb v. Cianci, 591 A.2d 1193, 1200-

01 (R.I. 1991). It therefore denied a petition for writ of certiorari to challenge the

eligibility of a candidate declared mayor-elect of Providence, Rhode Island, where

37

the petitioner failed to file a timely election challenge. Id. at 1201. The court

explained:

The public policy of this state requires that challenges to qualification of candidates for public office be resolved as quickly as possible in order that an election may take place upon the dates previously ordained by the General Assembly. The state has a compelling interest in the validity and finality of the election of candidates to all public offices, but particularly to the office of chief executive. Only prompt challenges presented in accordance with statutory and case law may be considered.

Id, (citations and quotations omitted).

The Alaska Supreme Court's decision in Div. of Elections of State v.

Johnstone, 669 P.2d 537, 545-46 (Alaska 1983) is also illustrative. That case

involved a dispute over whether a judge appointed to fill a vacancy was required to

run for retention in 1984 or 1982. /d. at 538-39. The Alaska Supreme Court held

that the judge was required to run for retention in 1982. Id. at 540. However,

because the judge believed he had to run in 1984, he missed the filing deadline for

the 1982 election. Id. Therefore the court was confronted with whether to apply

its decision prospectively-only, or retrospectively, where the latter would

effectively remove the judge from office. Id. at 543.

As to the third Chevron Oil factor, the Alaska Supreme Court stated: "A

holding resulting in the ouster of Judge Johnstone from office would work an

extreme hardship. Such a result would have been significantly out of line with any

38

'fault' on the part of Johnstone in failing correctly to predict our ruling." Id. at

545. But beyond the judge's own potential reliance on the opinions he received,

the court recognized other equitable considerations, specifically those of the voters.

Id. at 545-46. It therefore held that giving the voters their opportunity to choose to

retain the judge or not militated in favor of permitting the judge to appear on the

1982 ballot, despite his failure to meet the filing deadline. Id. at 546.

Johnstone is arguably distinguishable from this case because here, the voters

themselves have enacted the term limits amendment, which if applied would have

prohibited Mr. Hafen from appearing on the ballot. Thus whether Lorton is

applied prospectively or retrospectively will necessarily frustrate the will of some

voters. If it is applied retrospectively, the voters who chose Mr. Hafen to be their

mayor will have their votes invalidated, and their chosen representative removed

from office. Conversely, if Lorton is applied prospectively only, the voters who

supported the term limits provision (and who anticipated and intended the result in

Lorton) will have that intent frustrated.

The term limits amendment was a statewide initiative which enjoyed broad

support. While the statewide voters generally have an interest in seeing term limits

enforced, the voters of Henderson have a much more palpable and direct interest in

whether Mr. Hafen remains in office. Those voters recently re-elected Mr. Hafen,

with the knowledge that he had already served more than 12 years on either the

39

City Council or as Mayor. It would be inequitable to apply the rule retroactively to

remove a person who was elected before Lorton was decided, thereby invalidating

the votes of the citizens of Henderson who, despite knowledge of Mr. Hafen's

length of service, voted to elect him as their Mayor.

CONCLUSION

Petitioner Rick Workman's motion for leave to file a petition for writ of quo

warranto should be denied because he lacks standing, since he has asserted no facts

which, if true, would show that he has any direct or personal stake in the outcome

of the matter sufficient to create a justiciable controversy. Like the petitioner in

Teuton, Workman has no standing to seek a writ of quo warranto.

Workman's alternative request for a writ of mandamus should also be denied

because he has no interest in seeing Mr. Hafen ousted from office which is distinct

from the public's interest. In such matters, the Attorney General's discretion

whether to institute quo warranto is complete and cannot be challenged by

mandamus.

Nor will mandamus lie against the Secretary of State. As Chief Election

Officer, the Secretary has discretion in enforcement of the election laws. Petitioner

has not shown any ministerial legal duty requiring the Secretary to act in this case,

nor has Petitioner demonstrated that the Secretary has abused his discretion.

IIII

40

Finally, Workman's challenge comes too late. The challenge is barred by

laches because all of the facts necessary to bring the challenge were well known at

the time of the election, a special expedited process exists for testing candidates'

qualifications, yet Workman failed to file the challenge timely. He should not now

be permitted to try to invalidate an election that occurred more than a year ago.

DATED this 30th day of June, 2014.

CATHERINE CORTEZ MASTO Attorney General

By: /s/ Kevin Benson KEVIN BENSON Senior Deputy Attorney General Bar No. 9970 Attorney General's Office 100 North Carson Street Carson City, Nevada 89701-4717 (775) 684-1114 Attorneys for Respondents CATHERINE CORTEZ MASTO, Nevada Attorney General, and ROSS MILLER, Secretary of State

41

CERTIFICATE OF SERVICE

I declare that I am an employee of the State of Nevada and on this 30 th day

of June, 2014, I served a copy of the foregoing RESPONDENTS' RESPONSE TO

MOTION FOR LEAVE AND ALTERNATIVELY, PETITION FOR WRIT OF

MANDAMUS, by Supreme Court of Nevada CM/ECF Electronic filing to:

Stephanie Rice, Esq. Hardy Law Group 96 & 98 Winter Street Reno, Nevada 89503

Todd Bice, Esq. Pisanelli Bice 3883 Howard Hughes Parkway Suite 800 Las Vegas, Nevada 89169

/s/ Linda Deming Employee of the State of Nevada Office of the Attorney General

42