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Mitchell wins in Court of Appeals, declared legitimate candidate
Republican state House candidate Darin Mitchell won again today when a panel of Court of Appeals judges ruled he was improperly served with paperwork in his residency challenge and declared him a legitimate candidate for the office.
Last month, a Maricopa County Superior Court judge ruled by clear and convincing evidence that Mitchell did not live in his district as required by law and therefore should not be on the general election ballot.
But the Arizona Court of Appeals vacated that ruling today because the plaintiff, Rep. Russ Jones, who lost to Mitchell in the primary election, did not properly serve Mitchell with the complaint.
The Court of Appeals did not consider whether or not Mitchell lived in the district.
“Because Mitchell was not properly served with the summons and complaint in this case, we conclude that the Superior Court lacked personal jurisdiction over Mitchell and we therefore vacate its judgment,” wrote Appeals Court judges John Gemmill, Margaret Downie and Lawrence Winthrop.
Mitchell’s attorney, Timothy La Sota, said that even though Superior Court Judge Robert Oberbillig found by clear and convincing evidence that Mitchell did not live in the vacant house owned by his campaign manager, the law is the law, and Mitchell was not properly served with paperwork.
“I think the law is not a technicality for them or for us,” he said. “We certainly disagreed with the trial court finding, we still maintained he was a resident, he got almost 9,000 votes. We just happened to prevail in the way we prevailed, but I think this is the proper conclusion… It’s not a technicality, it’s the law.”
Jones’ attorney, Tom Ryan, said he doesn’t believe there is enough time to take the matter to the state Supreme Court before the election. He will instead take the matter to the state House Credentialing Committee, which has the authority to recommend to the full chamber that an elected member be ruled ineligible to take the seat.
“I think once they realize that (Mitchell) has lied to the people of LD13, I don’t think anybody is going to want to serve with this guy,” Ryan said.
But House Speaker Andy Tobin, who heads up the House Credentialing Committee, said that without any allegations of criminal behavior, he doesn’t believe the committee will prevent Mitchell from taking the seat.
He said the Credentialing Committee is mostly a formality, and he doesn’t know of any time that the committee has kept a member from taking office after an election.
“I think this is Mr. Ryan reaching for straws after two elections, assuming Mr. Mitchell wins this election, and after the courts having put (Mitchell) back on (the ballot),” he said. “I don’t know how he thinks the credentialing committee will overthrow the will of the voters on two occasions and the courts.”
Tobin said if the voters of Legislative District 13 – which runs from the West Valley to Yuma – don’t want Mitchell to represent them, they still have the chance to vote for one of the write-in candidates running for the office.
Democrats didn’t put up any candidates in the Republican-heavy district, so Mitchell and his running mate, Rep. Steve Montenegro, will be unopposed on the ballot for the two seats.
However, four Republicans have filed as write-in candidates in the district. Jones cannot run as a write-in candidate in the district because of a state “sore loser’s law.”
Mitchell could not immediately be reached for comment.
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