Jim Torgeson’s, Jay Adleman and JoshuaBendor

During a virtual hearing on Jim Torgeson’s lawsuit before Superior Court Judge Jay Adleman, left, attorneys JoshuaBendor, top right, and Tim LaSota made their arguments.

A Gilbert man’s attempt to overturn the town’s voter-approved $515-million bond was tossed out of court.

Maricopa County Superior Court Judge Jay Adleman granted Gilbert’s motion to permanently dismiss Jim Torgeson’s lawsuit, which claimed that the town’s removal of his anti-bond signs before early voting began unduly affected the Nov. 2 election’s outcome. The transportation and infrastructure bond passed by 164 votes.

The judge in his seven-page ruling agreed with the Town’s assertions that Torgeson’s lawsuit is “time barred” and that he lacked a legal basis for his suit – a main point in the Town’s request to toss it. The Arizona Court of Appeals agreed and turned thumbs down on even hearing an appeal.

“The Arizona Supreme Court has made clear a plaintiff has to challenge pre-election practices once he knows about them,” said attorney Joshua Bendor, representing the Town at a Dec. 20 virtual hearing. “Torgeson waited two months to sue. He sat on his rights.

“If he had sued before the election and the court had agreed with him on the merits, perhaps they could have ordered some appropriate remedy other than invalidating the will of the people. But now, that’s the only remedy Torgeson seeks.”

Bendor also pointed out that Torgeson failed to cite a case in Arizona or in any jurisdiction where a court has overturned an election for conduct remotely similar to the brief removal of political signs.

Torgeson’s attorney Tim LaSota did not respond to a request for comments.

 Adleman said Torgeson needed to have filed his challenge before the election took place. 

“Arizona law has repeatedly noted that any challenges associated with procedural violations of the electoral process must be brought prior to the actual election,” the judge said. 

He cited Kerby v. Griffin, which ruled that “procedures leading up to an election cannot be questioned after the people have voted.”

And in Abbey v. Green, if the parties allow an election to proceed in violation of the law which prescribes the manner in which it shall be held, they may not, after the people have voted, then question the procedure,” the judge noted.

At issue was the Town’s removal of about 57 of Torgeson’s signs from the public rights-of-way because officials said they didn’t follow campaign laws by including a contact name. Torgeson’s phone number, however, was on the signs.

LaSota at the time argued that the state statue did not apply to his client because he was neither a political candidate nor a political action committee and threatened to sue if the Town continued with its practice. LaSota claimed the Town targeted Torgeson’s signs because it didn’t like the message. 

Torgeson reposted his signs and the Town left them alone.

The judge said though Torgeson raised substantive issues pertaining to the Town violating his First Amendment rights by removing his signs, “the underlying dispute between the parties involves the plaintiff’s compliance (or lack thereof) with mandatory voter information to be included on election signs, as well as the Town of Gilbert’s enforcement of protocols associated with the placement of campaign signs within the town.”

“Quite frankly, these issues pertain to the electoral process and pre-election procedures. As such, they must be raised prior to the election,” the judge said.

Adleman also said Torgeson’s complaint does not rise to the level of an offense as viewed by a law that allows for an election contest if an official received a bribe or reward or “has committed any other offense against the elective franchise.”

Torgeson “asserts that this election contest involves the catch-all provision noted above,” the judge said. “Arizona law has indicated that an ‘offense against the elective franchise’ is conduct that would ‘deprive a voter of the opportunity to exercise his free and unfettered judgment.’

“Mr.Torgeson’s complaint expressly acknowledges that – prior to the commencement of the early voting period – the Town of Gilbert agree to discontinue any efforts to remove this signs. His complaint further concedes that all of his signs were replaced by Oct. 8, 2021, shortly after the early voting period started. This occurred well before the date of the election on Nov. 2, 2021.”

Adleman said in light of his ruling, it was not necessary to address the additional issues raises such as if the Town’s treatment of Torgeson’s signs was consistent with campaign laws and whether Torgeson has shown that the Town’s conduct somehow changed the election results.

“As to the latter issue, however, the Court notes that this election was not so close as to trigger a mandatory recount” under state law, he said.

Two days after Adleman issued his ruling, Torgeson filed a petition for special action with the Court of Appeals on Dec. 22.  The three-judge court on Dec. 23 declined to hear the case.