Lau’s council seat remains vacant after court ruling

A district court judge last week denied expelled City Councilman Stan Lau’s request for a preliminary injunction but reaffirmed his earlier ruling that the city council violated the state’s Open Meeting Law when it expelled Lau on March 4, leaving the two sides split over what the decision means for Lau’s status on the council.

Third Judicial District Court Judge Leon Aberasturi issued his finding during an Aug. 11 hearing and directed attorneys for both sides to submit written orders for his review by Sept. 11. 

The disagreement between the parties stems from a second vote by the City Council to expel Lau on April 15.

After the City Council voted to expel Lau on March 4, Lau filed an emergency petition on March 24 seeking declaratory and injunctive relief, along with a temporary restraining order, arguing the council could not vote to expel him because the agenda item for the March 4 meeting did not list expulsion as a possible action. The court granted that motion, saying there was enough evidence to justify immediate intervention. In that order, Aberasturi found that Lau would face “immediate and irreparable injury, loss or damage” if the city moved ahead with declaring his seat vacant and filling it before the matter could be heard.

That temporary restraining order remained in place until the preliminary-injunction hearing, which was originally set for April 10 and postponed multiple times before it was held Aug. 11.

Meanwhile, the council took action April 15 on an agenda item labeled as “Discussion and Possible Corrective Action” which did specify expulsion as a possible action. The agenda for the April 15 meeting was posted by the City on April 9, and on April 10 Lau filed an emergency motion for a supplemental temporary restraining order to stop the council from considering the April 15 agenda item. After hearing arguments during a hearing on April 13, Aberasturi denied Lau’s request and allowed the city to proceed with the agenda item on April 15. The City Council approved a motion on the corrective action item to expel Lau by a 3-1 vote.

Attorney Jeff Dickerson, representing Lau, and City Attorney Aaron Mouritsen disagree on whether expulsion of Lau under the April 15 corrective action stands.

During an interview on Aug. 12, Dickerson said Aberasturi’s ruling that the Open Meeting Law was violated at the March 4 meeting means the vote on the resolution to expel Lau was void ad initio, which is a Latin phrase meaning “from the beginning.”

“He was never expelled, is what the legal effect of that is,” Dickerson said. 

Dickerson said the purpose of the April 15 agenda item for corrective action was limited to preventing the Attorney General’s Office from prosecuting the City Council, civilly or criminally, for a violation of the Open Meeting Law and does not apply to the expulsion itself.

“So, it was a prophylactic vote in order to keep the city from being attacked by the AG on another front,” Dickerson said.

Mouritsen said the city’s position is that Lau is still expelled. 

“We, of course, disagree, and its our position that the April 15 vote is the corrective action, but it is also still a standing item on its own,” Mouritsen said. “The April 15 vote has not been overruled by the judge.”

The court did not rule on the April 15 corrective action during the Aug. 11 hearing.

“And the reason it wasn’t addressed is because Stan Lau’s attorney, in any of his pleadings, did not ask for it to be addressed,” Mouritsen said. “He only asked for the March meeting to be addressed. It was not in front of the court to make a ruling on the April 15 (meeting).”

Mouritsen said that he expects there to be additional litigation in regard to the April 15 meeting.

“It’s going to have to be resolved in court, I imagine,” he said.

The other part of Aberasturi’s ruling at the Aug. 11 hearing was to deny Lau’s request for an injunction. Dickerson presented a PowerPoint presentation during that hearing in which he argued that the City Council does not have the authority to expel Lau.

He cited Nevada Revised Statue 266.240 which states a City Council can expel a member for cause. Dickerson argued that the statute does not define cause and instead delegated the definition of cause to cities. He also cited the City’s Municipal Code stating, “The Fernley City Council may punish its members for disorderly conduct, as defined by resolution, and with the concurrence of two-thirds of the members of the City Council, may expel a member for cause, as defined by resolution.” 

Dickerson said the Council has adopted resolutions defining disorderly conduct but never adopted a resolution defining the “cause”.

“The council never gave itself expansionary power,” Dickerson said. “Power must exist before it can be exercised.”

In denying the motion for preliminary injunction, the court found the City of Fernley did follow its municipal code and state statutes and stated what grounds Lau was expelled for.

Aberasturi directed Dickerson to prepare an order in regard to the Open Meeting Law ruling, and Sean Lancaster, an attorney who represented the City alongside Mouritsen, to prepare the order for the denial of the preliminary injunction and submit them to the court by Sept. 11. The judge will review and finalize the order before entering it. 

“Usually the courts will have the prevailing party prepare a sample draft order, circulate to the other parties to see if there’s any disagreements, and then the judge will adjust it to be exactly what the judge wants,” Mouritsen said.

Dickerson said he and Lancaster agreed to write a joint order that would cover both aspects of the ruling in one order.

Meanwhile, Lau’s seat remains vacant at least until the judge enters the final order. 

“At that point, our position is that Lau is entitled to take his seat, because he never was expelled,” Dickerson said.

If, as Mouritsen expects, Lau’s expulsion stands, Nevada Revised Statutes require the council to fill a vacant seat, but Aberasturi’s order that the seat not be filled while litigation was pending remains in effect until a final order is filed.

“We’ll see what the judge’s order says, but if the judge’s order removes that block, then we would have to fill Stan Lau’s seat,” Mouritsen said. “We probably need more clarification from the judge before we know what we’re doing with that.”

Lau’s term expires in December, and he was unable to run for reelection due to term limits.