Third Judicial District Judge David Huff has issued a temporary restraining order prohibiting the swearing in of Don Parsons later today. The judge also scheduled a hearing in Yerington for January 26 at 1:30 p.m. Until Judge Huff's ruling today, Parsons was considered the winner of the Ward 2 seat on the Fernley City Council by a razor-thin margin over Don Howard.
With just hours remaining before new Fernley City Council members were scheduled to be sworn in Wednesday afternoon, Secretary of State Ross Miller filed a writ of mandamus seeking to have the city and/or county conduct a new election for the Ward 2 seat. At the same time Tuesday, Miller asked the court to issue an injunction barring Don Parsons from being sworn in until a new election can be carried out.
In the ruling filed at 11:56 a.m. Wednesday morning, Judge Huff wrote, "This matter came before the Court on an 'Emergency Petition for Writ of Mandamus and Request for Injunction,' which was filed with the Court Clerk on January 6, 2009. The court finds that a Temporary Restraining Order is an appropriate relief on a temporary basis."
Further on in the four-page ruling, Judge Huff indicates that the court has jurisdiction to take action because lawfully registered voters were precluded or prevented from voting, and the swearing in of Parsons would result in irreparable injury by disenfranchising those lawfully registered voters.
The Temporary Restraining Order was granted pending a hearing on the request by the Secretary of State for a preliminary injunction and the resolution of the emergency request for a writ of mandamus, according to the ruling.
"The City of Fernley shall not swear in Candidate Donald Parson as Ward 2 City Council member of Fernley City on January 7, 2009," Judge Huff concludes.
Rumblings of voter irregularities first arose the day after the Nov. 4 general election in which two seats on the Fernley City Council were to be decided. Apparently, there were 47 voters in the area of Winnie’s Lane that were coded in error to be in Ward 5, as opposed to Ward 2.
In a memo dated Nov. 14, City Clerk Lena Shumway informed then City Manager Gary Bacock that she had talked with Matt Griffin, Deputy Secretary of State for Elections, and he relayed details of his discussion with Nikki Bryan, Lyon County Clerk/Treasurer. At that time, Griffin told Shumway that Lyon County had already contacted the D.A.’s office.“To Mr. Griffin’s understanding, since 49 voters in a specific ward were not able to vote there should be a Special Election, but the decision would have to be made by Lyon County and the D.A.’s office,” Shumway said in the memo.
In late November, Lyon County Clerk/Treasurer Nikki Bryan explained that the problem originated with the extension of Winnie’s Lane in to a new sub-division over the last couple of years. The “street file” was not updated and it automatically sets precincts and wards.
“We should’ve caught it, but we just missed it,” Bryan said of the glitch that placed 47 voters in Ward 5, when they should have been allowed to vote in Ward 2. “This was fixed when we became aware of the problem. It’s just unfortunate that it wasn’t caught before the election.”
Don Howard submitted a letter of complaint regarding the problems with the coding of the wards shortly after the election, however Judge Huff threw out the complaint indicating that it did not meet statutory requirements for contesting the election.
In that original ruling, Judge Huff said, “It is unclear from the letter submitted by Contestant (Donald Howard) whether he is contesting the election or simply making a complaint concerning the election process. If, in fact, the intent of Contestant is to contest the election, he has failed to comply with the statutory requirements of NRS 293.407. In view of the failure of Contestant to comply with statutory requirements, the court lacks jurisdiction to hear this matter.”
In comments made in late November, Fernley Mayor Todd Cutler questioned why the coding issues with the addresses were not discovered in the primary election. Regardless of the outcome, the Mayor said he viewed the situation as a problem that needed to be resolved by Lyon County.
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I am glad to see this is finally being taken care of. The real problem I have with this is the fact that the mayor, 5 council members, 5 county commissioners, a county clerk, and Judge Huff all did nothing, until a reporter finally looked into it and got something done. I realize that elections may not be their number 1 item. But the fact that some people did not get to have their vote count is deffinitely something to pursue! Our right to vote and have it count is one of the rights that we still have. And in my opinion I feel that any one of the elected officials could have pursued this matter instead of looking the other way and ignoring it. I hope we look at this as a learning experience and all of work together to see that nothing like this happens again.
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