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Mitchell Ruling

Mitchell Ruling

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Published by: matthendley on Sep 18, 2012
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10/10/2012

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Michael K. Jeanes, Clerk of Court*** Filed ***
SUPERIOR COURT OF ARIZONAMARICOPA COUNTYCV 2012-09585509/17/2012CLERK OF THE COURTHON. ROBERT H. OBERBILLIGR. AguileraDeputy RUSSELL JONESTHOMAS M RYANv.DARIN MITCHELL, et al.WILLIAM MORRIS FISCHBACH IIICOLLEEN CONNOR MICHELE LEE FORNEYWILLIAM J KEREKESAPPEALS-CCCATTORNEY GENERALCOUNTY ATTORNEY-CIVIL SECTIONDOCKET-CIVIL-CCCELECTION CHALLENGE HEARINGDAY 2RULINGCourtroom-OCH 309.Prior to commencement of the proceedings, Defendant’s exhibit 71 and Plaintiff’s exhibits72 through 89 are marked for identification.9:40 a.m. This is the time set for continued Election Challenge Hearing Re: Plaintiff’sApplication for Order to Show Cause and for Preliminary and Permanent Injunctive Relief. Thefollowing parties are present or represented as indicated:
Plaintiff Russell Jones is present with counsel, Thomas M. Ryan.
Defendant Darin Mitchell is present with counsel, William M. Fischback, III andTimothy LaSota.Docket Code 019
Form V000A
Page 1
 
SUPERIOR COURT OF ARIZONAMARICOPA COUNTYCV 2012-09585509/17/2012
Defendant Secretary of State Ken Bennett is represented by counsel, MichelleForney. Also present with Ms. Forney is Assistant Secretary of State, Jim Drake.
Defendants Maricopa County Recorder Helen Purcell and the Maricopa CountyBoard of Supervisors are represented by counsel, Otis Smith. Also present withMr. Smith is Karen Osborne, the Maricopa County Elections Director.
Defendants Yuma County Recorder Robyn Pouquette, who is present, and theYuma County Board of Supervisors are represented by Deputy County Attorney,William Kerekas. Ms. Pouquette and Mr. Kerekas appear telephonically.A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.Johnny Robert Rae is sworn and testifies.Plaintiff’s exhibits 72, 73, 74, 75, 76, and 77 are received in evidence.Upon motion of Defendant’s counsel, Plaintiff’s exhibit 90 is marked for identification andreceived in evidence.Sandra Dowling is sworn and testifies.Pursuant to stipulation of the parties’, Defendant’s exhibit 71 and Plaintiff’s exhibits 78through 89 are received in evidence.Barry Voegele is sworn and testifies.The witness is excused.11:10 a.m. The court stands at recess.11:20 a.m. Court reconvenes with the parties and respective counsel present.A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.Diane Rosztoczy is sworn and testifies.The witness is excused.Plaintiff rests.Docket Code 019
Form V000A
Page 2
 
SUPERIOR COURT OF ARIZONAMARICOPA COUNTYCV 2012-09585509/17/2012Jeffrey Koontz is sworn and testifies.Defendant’s exhibit 42 is received in evidence.12:01 p.m. The court stands at recess.1:19 p.m. Court reconvenes with the parties and respective counsel present.A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.Closing arguments are presented.
IT IS ORDERED
taking this matter under advisement.2:57 p.m. Hearing concludes.
LATER:RULING
In this Legislative District 13 election challenge, Contestant/Plaintiff Russell Jones allegesthat Contestee/Defendant Darrin Mitchell does not reside in District 13 but instead, actually residesin District 19.The Trial to the Court took place on September 13 and 17, 2012. The Court has consideredall the evidence, applicable law, determined credibility, and issues its ruling below:
Law
The Contestant has the burden of proof by clear and convincing evidence. Blaine v.McSpadden, 111 Ariz.147,149 (1974)Pursuant to Article 7, §15 of the Arizona Constitution, a candidate for public office must bea qualified elector of the political subdivision in which that candidate may be elected. Similarly,A.R.S. §16-311(A) requires that a candidate file a nominating paper at least 90 days before the primary election “giving the person’s actual residence address”, and be a qualified elector whoresides in the district the candidate proposes to represent. A.R.S. 16-101(B) defines resident torequire “actual physical presence in the political subdivision, combined with an intent to remain.”Finally, A.R.S. §16-672(A)(2) permits an elector to challenge whether the contestant “was not atthe time of the election eligible to the office.”Docket Code 019
Form V000A
Page 3

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