A panel of three Court of Appeals judges today said they would rule quickly in the residency case for House candidate Darin Mitchell, who a Maricopa County Superior Court judge ruled last month did not live in his district and therefore should not be on the ballot.
Mitchell defeated Republican Rep. Russ Jones in the primary election in Legislative District 13, and shortly after, Jones filed a complaint stating Mitchell did not live in the district. Though a Superior Court judge decided with clear and convincing evidence that Mitchell lived outside the district, the Court of Appeals last month allowed his name to stay on the ballot because he was not served correctly with the complaint.
The arguments in the Court of Appeals today were based on whether Mitchell waived his right to personal service by continuing on with his defense, and whether the laws allow a legislative election challenge through the courts to begin with.
The panel of three judges – John Gemmill Margaret Downie and Lawrence Winthrop – said that they recognized the time factor involved in the case, and would issue a decision quickly.
The two sides sparred over whether the complaint is moot because the court doesn’t have the authority to intervene in legislative election challenges under A.R.S. 16-678, which states that the preceding election challenge laws, “shall [not] be deemed to affect in any manner procedures relating to contests of elections of members of the Legislature.”
Mitchell’s attorney, Timothy La Sota, told the panel of judges that he had discovered legislative history that shows what the Legislature intended to do when they last amended A.R.S. 16-678 in 1991.
“That legislative history makes it clear that they were indeed intending to divest the judiciary of their role vis-à-vis contests of elections involving legislators,” he said.
La Sota said the sole authority to declare candidates ineligible rests with the credentialing committees in the Legislature, and Jones can still file a complaint with the House Credential Committee after the general election.
But Gemmill seemed suspicious of the argument that the Legislature is the sole arbitrator of election contests for legislative candidates.
“If the Legislature intended to take all of this out of the hands of the courts, wouldn’t they have done something more clear than 16-678?” Gemmill asked.
Jones’ attorney, Tom Ryan, agreed that once somebody has been elected to office and the official canvas has been announced, the Legislature is the sole arbitrator of challenges, but said that beforehand, it’s still in the courts’ jurisdiction.
He said that if the courts had no authority over election challenges for lawmakers, then candidates could do whatever they wanted in the primary election and not have to worry about repercussions.
“That means candidates in the primary elections can be as dirty as they want, they could procure illegal votes, they could bribe poll workers, they could lie about what district they live in and the court system would have no opportunity to oversee that,” he said.
La Sota also argued that his motion to dismiss based on lack of personal service should stand, and he didn’t waive his client’s right to personal service, even when he continued on with his defense after the motion was dismissed.
“You’re allowed to make your objection and if it’s denied, then you don’t have to exit the courtroom in order to preserve that objection, you can stay there and defend (your case on the merits),” La Sota said.
But Downie questioned if by going along with the trial and not filing the motion to dismiss for lack of service alone, without other defenses, La Sota had waived his client’s service rights.
“As I read the transcript, it seemed as if you engaged the court on other matters, particularly scheduling and other evidentiary issues, without addressing directly the motion to dismiss for lack of service,” Downie said.
La Sota said that because of the tight timeframe, he had to file his motion to object to personal service and the subject matter of the case together, and that doesn’t mean he waived service.
He said that the list of witnesses and exhibits he entered into evidence doesn’t mean Mitchell submitted to the court’s jurisdiction or waived his right to personal service.
“The list of witnesses and exhibits, that was a courtesy we afforded to Mr. Ryan,” he said. “I’m almost sorry I did it, but we were trying to play nice and we made our objections clear.”
Ryan admitted that Mitchell was not served properly under the law, but argued that because Mitchell actively participated in the case, due process was met and Mitchell waived his right to be personally served.
“The plain fact of the matter here in this case is there were multiple efforts for relief sought in the case, they called their own client to the stand who was sworn in to testify, they got to call every witness they wanted to call. Due process was comported with as well as personal jurisdiction,” Ryan said.