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How Mitchell survived – for now

Legislative District 13 candidate Darin Mitchell stands during a courtroom appearance Sept. 18. (Ryan Cook/RJ Cook Photography)

Mary Wilkening was at her Litchfield Park home on the afternoon of Sept. 18, when she heard the news that Darin Mitchell, her alleged neighbor, would be unopposed on the November ballot to be her next representative in the state House.

The news came as a shock and disappointment. She and two other neighbors on her block had recently testified in Maricopa County Superior Court that Mitchell, a candidate for the Arizona House of Representatives in Legislative District 13, had never actually lived in the district.

The neighbors knew Mitchell did not live where he said he did, in the vacant home owned by his campaign chairwoman across the street from Wilkening’s house. And Maricopa County Superior Court Judge Robert Oberbillig agreed with them.

Just a day earlier on Sept. 17, Oberbillig found clear and convincing evidence that Mitchell didn’t live in the district despite swearing under oath that he did. Oberbillig threw Mitchell off the ballot.

But now he is back on it, facing no competition in the general election, thanks to a technicality and a Sept. 18 deadline for printing election ballots.

“You kind of feel betrayed by the system,” Wilkening said, although she noted that the fight isn’t over.

She is still wondering, “How did this happen?”

The technicality

The Arizona Court of Appeals and Supreme Court decided to keep Mitchell on the ballot after he said he had not been served correctly with the election complaint filed by Rep. Russ Jones’ attorney, Tom Ryan.

Jones, of Yuma, brought the complaint after Mitchell defeated him in a three-way GOP primary for one of two seats in the state House for Legislative District 13, which stretches from the West Valley to the Colorado River.

Wilkening had seen Mitchell’s address in a candidates guide and noticed he listed the address of the house across from her that had been vacant for more than a year. So she tipped off Jones, and he took Mitchell to court.

Arizona law states that legal challenges to nominating petitions can be served through the Secretary of State’s Office. But in election challenge cases, it requires defendants to be served personally, five days before trial.

Ryan was filing an election challenge, but served paperwork to the Secretary of State’s Office, not to Mitchell himself, which turned out to be a fatal flaw to their case.

The issue was one of the first that Mitchell’s defense raised in the first day of trial, asking Oberbillig to dismiss the case with prejudice because the defendant was never personally served and did not receive adequate time to prepare for the case.

Oberbillig agreed with Ryan that serving the Secretary of State’s Office satisfied the requirements, and denied the motion to dismiss the complaint. He did, however, agree not to issue a ruling until five days had passed after the Secretary of State’s Office was served – and held his ruling until Sept. 17, the day the ballots were scheduled to start printing.

“We’re jumping through hoops here because there’s a printing deadline.

The statute doesn’t require us to jump through those hoops… I’m not as hung up on the 17th because we have to print ballots, I’m hung up on due process,” Oberbillig said on the first day of the trial.

On Sept. 18, the Court of Appeals granted Mitchell a stay to provide more time to consider the merits of the appeal. The state Supreme Court let the stay remain in effect. Because the printing of ballots could not be delayed, Mitchell’s name remained on the ballot.

Up against a deadline

Veteran election law attorneys say this kind of confusion isn’t uncommon in election challenge cases, given the fast pace and unique rules.

Lisa Hauser, an attorney at Gammage and Burnham, said the time period for serving a defendant can often be a problem in cases where the courts are up against a deadline for printing ballots.

“The difficulty sometimes is that the courts want to move forward and hear the cases fast,” she said.

Dan Barr, an attorney at Perkins Coie, agreed. He said the little differences between time periods and rules for motions, along with the need for a speedy resolution, can easily lead to a critical error.

“The time compression is so severe and the rules are different based on what type of challenge you’re filing, so it’s that sort of thing where the mistakes are understandable,” he said.

Barr said it is vital that lawyers follow the rules and that complaints are served properly, but in reality, Mitchell knew he had been served through his lawyer.

“Was his defense compromised in any way because he was not provided adequate notice of the lawsuit? Of course not,” Barr said. “But at the same time, the rules are the rules.”

After losing on the merits of the case, Mitchell and his attorney Timothy La Sota, of Tiffany and Bosco, turned to the Court of Appeals on the issue of service. The next day, a trio of judges in a phone conference decided to grant Mitchell’s stay. They did not consider evidence about whether Mitchell was staying in the home.

At the exact moment the Court of Appeals decided to reinstate Mitchell, Jones was in Yuma, in a room with more than 110 district precinct committeemen, waiting for the final tally of their vote on who should replace Mitchell on the ballot.

The news that there would be no replacement, that Mitchell would be the district’s candidate on the ballot, came just minutes before the result was tallied. By a margin of 67 to 46, Jones was the winner. But now the vote was moot.

Ryan was at his Chandler office when he got the news. Ryan immediately filed an appeal with the Arizona Supreme Court, and got a hearing scheduled for 4:45 p.m. But a judge denied his request to overturn the lower court’s stay, and moments later, just after the 5 p.m. deadline, the ballots began to be printed.

There was no going back. Mitchell once again had his slot on the general election ballot for the state House of Representatives in LD13.

Hugs and handshakes

Just 24 hours earlier, Jones and Ryan were on top of the world. They had finished their second day of testimony in Superior Court and were waiting for Oberbillig’s ruling at a nearby Starbucks. When the news came in, there were hugs and handshakes all around. Ryan danced a little jig, and Jones took a moment to pray to the “guy upstairs.”

Even veteran political observers said they faced an uphill battle in getting Oberbillig to overturn the results of the primary election, essentially invalidating the 8,572 votes that Mitchell won and declaring him an illegitimate candidate. It was a precedent-setting case that struck a blow to the “kooks, goofballs, charlatans and cheats” as Ryan put it.

The win was personal for both: Jones lost an election to Mitchell and Ryan took on the case pro-bono for a chance to disgrace his nemesis, Mitchell’s campaign strategist Constantin Querard.

In two long days of testimony, the court had heard from three neighbors, all of whom said they had never seen Mitchell in the Litchfield Park home. The judge heard from the contractor in the remodeling project at the Litchfield Park home, who said he had seen Mitchell “maybe twice” in the time he was working there. The contractor had never seen shoes or clothes in the bathroom, never seen towels or a toothbrush in the bathroom. The court considered photos taken the day before the primary election, which showed a dirty home under construction with no signs of life except a bare mattress lying on the floor of the master bedroom.

Oberbillig weighed the evidence against Mitchell’s testimony that he lived in the home. Mitchell said he spent most of his nights there, and that he ate, bathed and received mail in the home. Oberbillig also heard from Mitchell’s “landlords” Jeff and Theresa Koontz, who said they had let him stay there rent-free because they wanted a reliable tenant in the house. Theresa is also Mitchell’s campaign chair.

In the end, the judge didn’t believe them, and ruled that there was clear and convincing evidence Mitchell did not live in the district.

But what had been a small hiccup at the beginning of the trial – when La Sota moved to have the case dismissed over the issue of proper service, ended up choking their victory.

Finding a friendlier district

In the face of so much evidence, Mitchell’s claim to live in an empty home was uncommon. But his tactic for getting elected isn’t. For many state lawmakers and legislative candidates, moving into a different home to run in a more politically friendly district is an inconvenient reality.

With redistricting re-drawing the political boundaries in the state, this has been an especially active year for carpetbaggers, as they’re called.

Of the 75 incumbents hoping to return to the Legislature next year, at least six of them moved from their home into a friendlier district.

There is no way to tell how many new candidates moved after the lines were redrawn.

Often candidates only have to move a mile or two down the road to completely change their chances of winning. Crossing a political boundary in districts dominated by one party can take a candidate from having zero chance of being elected to having a fighting chance in the primary and a sure bet in the general election.

Before the lines were redrawn, Mitchell’s home where he lives with his fiancée was in the old LD12, a solidly-Republican district that covers parts of the West Valley. After redistricting, he ended up in the new LD19, which is heavily Democratic. Just about a mile away from his home is the boundary with LD13, a solidly Republican district. Like his GOP running mates, Rep. Steve Montenegro and Sen. Don Shooter, Mitchell decided to move. Only Mitchell didn’t actually move.

At one point during the redistricting, Jones was also drawn into a Democratic-leaning district. The lines were later tweaked, leaving him in LD13, but he told the Arizona Capitol Times that he was willing to call it quits instead of moving to further his political career.

“It would’ve bothered me. I would feel like a little bit of a carpetbagger, frankly,” Jones said in January. “I would’ve had trouble with my conscience on it.”

Querard, Mitchell’s campaign manager, was quoted in the same article saying voters don’t usually pay much attention to legislators’ moves.

Mitchell was eventually reported by a voter who did pay attention. But in reality, no official entity checks candidates’ residency, said Matt Roberts, spokesman for the Secretary of State’s Office.

The office doesn’t have the authority to check candidates’

residencies, Roberts said. Candidates sign sworn statements on their nomination forms attesting to their addresses and the office receives hundreds or thousands of candidates in an election year. The office simply doesn’t have the resources to check them all and leaves that up to candidates’ challengers.

Continuing the fight

Mitchell’s name is on the ballot, but Ryan is still fighting to make sure he doesn’t become a state representative. He plans to continue to challenge Mitchell’s ability to take a seat in the House based on the Superior Court’s ruling that there was clear and convincing evidence that Mitchell didn’t live in LD13.

“It was a temporary victory,” Ryan said. “(Mitchell will) be able to say ‘Well, at least I got on the ballot’ but he’ll never be able to take office.”

The original hearing in front of Oberbillig was to get the court to stop the ballots from being printed with Mitchell’s name on them and to get the court to find that Mitchell is not qualified to run in the district.

Ryan hopes he can return to the Superior Court and file an election challenge before the same judge asking that Mitchell be declared unqualified to serve in the office. If that happens, Mitchell’s name would still appear on the ballot, but votes for him would not count and a write-in candidate, potentially Jones, could win.

But if that fails, Ryan has a backup plan.

Each chamber in the Legislature has a credential committee that checks over winning candidates’ paperwork and declares them qualified to hold the office. It’s usually a ceremonial process, but the committee does have the authority to recommend to the full body that someone be stopped from taking office. If all else fails, Ryan plans to make his case to the credential committee, showing that a judge has ruled with clear and convincing evidence that Mitchell does not live in the district, and therefore cannot hold the office.

If that is the case, Jones is still out of luck, because Mitchell’s replacement would have to come from Maricopa County, where Mitchell lives.

House Speaker Andy Tobin, a Republican from Paulden, said he is going to discuss the issue with his legal counsel. But he said he would prefer to let it play out in the courts before taking a stand on what he, as a member of the credentialing committee, would do.

La Sota, Mitchell’s attorney, said he is also gearing up for another legal battle. He said he respectfully disagreed with Oberbillig that Mitchell never lived in the district, and now that Mitchell is back on the ballot, he’s focusing on making sure Mitchell takes the seat.

“I consider us victorious on getting

Mr. Mitchell back on the ballot,” he said. “I have no illusion that the fight is over, but I’m happy with the position we are in.”

Wilkening is also ready to go back to court. Even though she thought the matter was settled, she said she would again take the stand and testify that Mitchell didn’t live in the home across the street until after the media firestorm and lawsuit.

“I’m glad to hear that Mr. Jones is going to try again, and I’m willing to help,” she said.

 

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