Gilbert won’t appeal a judge’s decision that paves the way for Councilman-elect Laurin Hendrix to claim his seat on the dais two months ahead of schedule.
Two weeks after he beat Councilman Bill Spence outright in the August Primary, Hendrix sued to be seated immediately instead of waiting until January to assume office.
On Sept. 10, Superior Court Judge Daniel Kiley ruled that Hendrix could be seated Nov. 3.
“I am pleased that the court ruling demonstrated that the rule of law was on my side,” said Hendrix. “At the same time, it is unfortunate that there is a negative side of Gilbert government — the good-old-boy mentality needs to go.”
Hendrix’s lawsuit against the town, Town Clerk Lisa Maxwell and Spence argued that since there was no need to hold a run-off in November for the two-year seat, the elected Primary Election winner should not have to wait until January to take the seat occupied by an appointee.
Hendrix’s attorney, Timothy La Sota, cited state laws to support his argument – including one that says a person elected to fill the remainder of an unexpired term of a vacant office can take the oath of office and begin serving within 90 days after the canvass of an election.
The town’s outside attorney argued otherwise and said that particular state statute did not intend for a successor to an appointed candidate take office earlier than the other candidates who are declared elected in the primary or general election. The town has a run-off election in November for mayor.
Kiley, who addressed each of the state statues cited by attorneys for all parties, stated while he agreed with the defendants that the seating of a candidate should take place after “the entire election process” concludes, he found the election for the two-year seat is completed and Hendrix is entitled to take his seat on Nov. 3.
Although town code stipulates that council members take office in January following their election, a state law “which does not entitle Mr. Spence to remain in office after the conclusion of the process by which his successor was elected,” take precedence, according to the nine-page ruling.
The judge also agreed with Hendrix’s assertion that the winner of an election need not wait until the following January to take the seat of the appointed officeholder.
“To hold that Hendrix must wait more than five months after his Aug. 4 victory over Mr. Spence to assume the seat now held by Mr. Spence would be contrary to public policy as reflected in statue and case law that disfavors the continued tenure in office of an appointee after the completion of the process by which a successor is chosen by the voters,” Kiley wrote.
In late August, Hendrix’s attorney also filed an emergency request that the court immediately bar the Council from taking any official action until Hendrix’s seating was resolved. The judge denied that request.
Spence said he prevailed because the judge rejected Hendrix’s accusations that he was a “usurper” and that his votes were invalid.
“I was very pleased the judge made it a point to specifically identify there was no usurping with regards to me being on Council and that I was legally there and my votes were legally valid,” Spence said.
“In discussion with my attorney we prevailed on both those counts,” Spence said. “I don’t intend to file an appeal from the portion of the lawsuit that deals directly with me.
“I am disappointed that taxpayer money and town resources were wasted in order to defend the legal actions taken by myself and the town.”
Spence was appointed in March to fill the seat vacated by Eddie Cook, who was appointed Maricopa County assessor. Spence was to serve for nine months until someone was elected to that position.
Gilbert spokeswoman Jennifer Harrison declined to say why the town will not appeal the ruling on Hendrix’s suit.
She said there was no figure yet for the attorney costs to defend against the suit.
“We do not have this information available at this time,” she said. “The law firms bill monthly in arrears, and we have not yet received the August invoices from either firm. We will not receive the invoices for September until sometime in October.”
Hendrix in an email said some of his initial undertakings upon taking office included the town’s newly formed ambulance service, which could begin operations as early as May.
“I am only one member of the Town Council but I will vote against all efforts to move forward the socialized ambulance service that has been proposed,” Hendrix said. “Ironically, all of the council members that support this expansion of government received substantial campaign support from labor unions that stand to benefit from the expansion of unionized labor.
“In some cases, the labor unions spent more on these candidates then the candidates spent on themselves,” Hendrix said. “I would expect to see strong labor union support in future elections for the same candidates as long as these candidates remain loyal to their union supporters.”