By Matt Ward
The legal dueling continues between Nye County and the Town of Pahrump over the town’s lawsuit seeking to remove a controversial question from the November ballot.
In the latest court filing, the town’s attorneys responded to the county’s earlier motion to dismiss, which called into question whether the town board violated the state’s open meetings law when it voted to authorize legal action in July. The county argues that such a violation would void the town’s action.
After Tuesday’s county commissioner meeting, it looks as if the county might now be considering a wholly separate lawsuit against the town over this.
The town filed its suit on Aug. 13, the county responded with a motion to dismiss on Sept. 4, and the town filed for a preliminary injunction against the ballot question on Sept. 7.
The town then filed a response to the county’s motion to dismiss on Sept. 13.
The town’s latest motion is blistering.
“The County’s Motion to Dismiss Motion is a waste of this Court’s resources and does not serve the interests of justice. Despite the rhetoric and misinformed allegations in the Motion, the fact is that the Town Board voted in open meeting to initiate the Complaint in the above-captioned matter in adherence with the Open Meeting Law, and there is no basis to find that the County will suffer harassment and multiple suits because the Town is the named plaintiff rather than the Town Board,” reads the opening line of the town’s opposition filing.
The argument eventually returns to the fundamental reason behind the town’s lawsuit — that county commissioners authorized a ballot question that lets voters decide the fate of the town board form of government in Pahrump without first saying for the record whether or not they believe that form of government has run its course.
“What the County presents is an improperly styled, timed, and argued motion for summary judgment that asserts claims that the County does not have standing to pursue under the Open Meeting Law. The County’s Motion is an obvious attempt to defer defending its actions, presumably because it was on advice of counsel or lack thereof that the Commission failed to follow Nevada law by disregarding the requirement of NRS 269.022 that it make a determination that the best interests of the Town are no longer served by a town board form of government.”
On Tuesday, Nye County District Attorney Brian Kunzi sought, and was given, explicit permission by county commissioners to defend the county’s interests in court by filing a countersuit against the town should it become necessary.
It appeared from back-up material in the commission agenda that Kunzi is paving the way for another legal salvo in the case.
The wording of the action item suggests as much: “Discussion and deliberation regarding initiating action pursuant to NRS 241.037 to file suit to declare void action taken by the Pahrump Town Board on July 24, 2012, to initiate a lawsuit challenging the ballot question asking for the elimination of the town board.”
Watching from his office in Reno, the town’s contract attorney Bret Meich, with law firm Armstrong Teasdale, said he believes the latest county move is part of a legal strategy to hedge its bets should a judge refuse to dismiss the town’s lawsuit.
Meich says the county has no standing to argue that the town violated the state’s open meetings law in the first place — only the state attorney general and members of the public can file such a grievance, he says — and in fact, the language used to agendize the town’s legal action during its July meeting is nearly identical to similar language used by the county when it considers its own legal action.
That argument is crystal clear in the town’s latest filing.
“The County argues that the Town Board failed to take action authorizing the Complaint and, nonsensically, that the Town Board’s action authorizing the Complaint violates the Open Meeting Law. Whatever argument the County asserts, the County’s Motion should be denied. The Town Board authorized the Complaint, and the Board adhered to the Open Meeting Law — using the same agenda item language that the County Commission has used following closed sessions. Moreover, these allegations are not appropriate on a motion to dismiss, and the County’s bald allegations are plainly insufficient to overcome its high burden. Importantly, the County does not have standing to challenge the Town’s actions under the Open Meeting Law.”
Meich says the town will likely take up an item during its Oct. 9 meeting that will ratify the town board’s earlier vote to approve its lawsuit against county, thereby potentially dealing a blow to the county’s entire argument.
“Although completely unnecessary, the Town Board may place the matter of the filing of the Complaint against the County on its next agenda, and its action may conclusively ratify its earlier vote to initiate the lawsuit. Despite the County’s flawed presentation of this issue on a motion to dismiss, despite the Town Board’s adherence to the Open Meeting Law, and despite the County’s lack of standing to challenge the Town’s action, the Board may place a detailed, extensively supported agenda item on its October agenda. While not required under the appropriate legal standard, should the Board elect to ratify its previous public vote to direct the Town Attorney to file the instant action, the County’s argument will be moot by its own standard,” the town’s opposition motion states.
Attempts to reach Kunzi by press time were not successful. As this case has developed, he has repeatedly argued that the town’s board is merely attempting to keep voters from deciding the fate of their own local government and that the county is merely preserving the right of voters to choose how they are governed.
So far, most commissioners — and town board members for that matter — have been mum on the merits of this unusual legal dispute.
Most realize that to speak publicly is to invite potential legal repercussions in court. However, that didn’t stop Commissioner Butch Borasky, who ironically pushed for the ballot question at issue during a July 3 commission meeting, from expressing his lament during Tuesday’s commission meeting that public resources are being spent on government infighting.
“We’re not doing the taxpayers any good suing each other. Too bad that it had to come to that,” he said.
Kunzi responded, “We didn’t file the lawsuit, we’re just answering it,” before Borasky dropped the subject and commissioners moved on to other business.
District Court Judge Robert Lane is expected to begin hearing arguments in this case on Oct. 15. By then, potentially hundreds of overseas, military and absentee ballots will likely have already been cast.