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10/21/2009 9:59:00 PM
Legal wrangling continues as city ballots reach voters
Paul Katan
Paul Katan

Cindy Barks
The Daily Courier

PRESCOTT - As the final ballots arrive at their destinations to Prescott voters this week, the legal quandary over the validity of the Nov. 3 general election drags on in the courts.

On Wednesday - in advance of anticipated consideration by the Arizona Court of Appeals on Oct. 26 - all three sides in the City of Prescott election lawsuit summed up their cases.

Written briefings were due to the court by Wednesday, and attorneys for the City of Prescott, candidate Paul Katan, and the Taxpayer Protection Initiative complied by filing the documents before the close of business.

The case involves the city's decision in September not to place City Council candidate Paul Katan's name on the general-election ballot. Katan, the seventh-place finisher in the Sept. 1 city primary, maintained that he should have moved up and onto the ballot after fifth-place finisher Bob Bell withdrew from the race in mid-September.

Katan, who later became a write-in candidate, filed a motion against the city on Oct. 9, and Yavapai County Superior Court Judge Michael Bluff ultimately ruled in his favor and issued an order late Thursday, Oct. 15, that halted the election.

That prompted Prescott to file an appeal with the Arizona Court of Appeals this past Monday morning, asking the higher court to weigh in on the "irreparable harm" that a cancellation of the election would have on the voters, the candidates, and the city.

Late Monday afternoon, the Court of Appeals conducted a telephonic hearing on the city's motion to suspend Bluff's order, and ultimately agreed that the election should continue.

That prompted Prescott to notify the Yavapai County Recorder's office that the approximately 5,000 ballots that had been on hold since Bluff's Thursday order should go out in the mail.

The County Election Department then mailed the remainder of the ballots late Monday, guaranteeing that all 24,996 Prescott ballots were in the mail prior to that day's deadline.

Even as the Court of Appeals judges granted the stay, however, they said they had yet to decide the merits of Katan's case, and scheduled a conference to consider the matter further the next Monday, Oct. 26.

While the bulk of the information in Wednesday's briefings repeats the arguments that attorneys have made in previous hearings, the documents also include new emphases.

For instance, Katan's attorney Gil Shaw stresses the fact that the city continued to mail ballots on Wednesday afternoon and all day Thursday, even though Bluff had hinted from the bench that he would rule against the city.

"Apparently, the city took that as a window of opportunity to dump the 10,000 ballots in the mail on Wednesday afternoon, and then an additional 7,000 ballots on Thursday, the day of the judge's ruling," Shaw wrote.

At the start of the hearing on the morning of Oct. 14, Shaw said, only about 2,550 of the city's ballots had gone out in the mail.

But the city's response maintains that it had no definitive reason to delay mailing until Bluff had ruled officially.

"The city's and the county's continued mailing of ballots cannot be considered 'dirty hands'...because the mailing of ballots followed the directive of (state law authorizing mail-in ballot elections)," states the city's briefing. "And it would hardly be proper for the city and county officials to violate these provisions and take it upon themselves to halt an event as important as a general election in the absence of a written court order."

The city also continued to maintain that local and state law provides no authority for moving one candidate up when another withdraws from the City Council race.

While "Bell was among the candidates who received the highest number of votes, his subsequent withdrawal and removal from the ballot did not change that fact," stated the city's brief. "Nor did Bell's withdrawal transform Katan into one of the six candidates who received the highest number of votes in the primary election."

But Shaw disagreed, maintaining, "The minute Bell's name was removed from the ballot, he was no longer a 'candidate' and thus was not one of 'the candidates...who received the highest number of votes..."

In the matter involving the Taxpayer Protection Initiative (Proposition 401), Timothy Hogan with the Arizona Center for Law in the Public Interest claims that Bluff's decision to halt the city election "has now jeopardized the constitutional rights of the initiative proponents and the citizens of Prescott to vote on Proposition 401."

The initiative seeks to require that any city project exceeding a cost of $40 million must go to the vote of the public.

Hogan's argument contends that "The danger in delaying an election on Proposition 401 is obvious. Without Proposition 401, the City Council can execute contracts that are otherwise prohibited by the proposition for at least two years."

City officials have stated that the next time Prescott could conduct a general election would be fall 2011.

Officials expect the Court of Appeals to consider the matter in a judge's conference on Monday, without further oral arguments. Court of Appeals Judge John Gemmill said Monday that the court would "try to get a decision out shortly thereafter."

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Reader Comments

Posted: Monday, October 26, 2009
Article comment by: Scotty

" this was no accident, but a planned move to keep a candidate off the ballot " So is that why Mr. Katan lost in the primary and didn't even make it on the ballot in the first election? He he really didn't finish 7th but was the victim of a conspiricy of Prescott voters at the direction of the city council to vote for 6 other candidates just to keep Mr Katan off the ballot? How diabolical! Especially if you consider all they really had to do to keep Mr. Katan off the ballot would have been for Mr. Bell to stay in the race. If Mr. Katan had the support some of you think he has, we wouldn't be going thru this in the first place.

Posted: Friday, October 23, 2009
Article comment by: not Hypocrisy?

Hypocrocy? If nasa had any idea they would have such a hard time landing on the moon, why didn't they wait until 2006 to do it when better technology was at hand? ------------- This man decides he's not a sheep and you want to know why he didn't make that decision years ago? talk about hypocrisy.

Posted: Friday, October 23, 2009
Article comment by: Read This One Paul !!!!

The editor has removed this comment because it violates the Terms of Use agreement for The "Use of Service" portion states, "If you use the Service, including the Messages Boards or Blogs, or submit essays, e-mail messages or other information ... you agree to abide by and be bound by the following:
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Posted: Thursday, October 22, 2009
Article comment by: Joan Donahue

For all of you who have thrown your ballots out, don't fall for the tactics telling you to get a new ballot. Until we find out how this mess got started,who was behind it, and why aren't we getting anything from City Hall regarding this matter?, and how about a word or two from our next Mayor, Marlin? New ballots should be printed and I for one don't want to hear the same old same old "we just don't have the money", if that's the case it's because the city used it all for their favorite projects and the hell with the people.Well suck it up City Hall, stop your whining, print the new ballots and stop this idiotic wrangling. Look hard and think really deep folks, this was no accident, but a planned move to keep a candidate off the ballot so the Council would be seated by the powers to be who might be more willing to go along with certain agendas, then other candidates,might be or might not be, but something to think about. THIS WAS NO ACCIDENTAL MISTAKE, what next, is ACORN coming to town.

Posted: Thursday, October 22, 2009
Article comment by: know he's right

Seems this monsterous mix up has done what the Cowboy Mafia had intended. Prevent 401 from getting passed so they can get their pipeline and make millions. This election needs to be halted and all new ballots be sent out to all the voters. Its a scam the Good Ole Boys have perpetrated.I wouldn't vote that boy Dog Catcher.

Posted: Thursday, October 22, 2009
Article comment by: Steven Ayres, poll worker

Parker and everyone else who's unsure: vote the ballot you have, and send it in right away. If the court orders a change, you'll get another one, and you should vote that one too.

To those who've thrown away their ballots: get a replacement ballot from from Fair St. It's standard procedure to have plenty of replacements on hand for people who've made mistakes.

For those who are disgusted by the whole mess and feel like dropping out: Don't let this little glitch get you down. More voters make a better result.

Posted: Thursday, October 22, 2009
Article comment by: I'm just sayin'

Sure, he's within his rights - but he came in 7th with not a shot of winning. The fact that he created a nightmare and cost to the taxpayers of Prescott, you can bet he'll never get elected in this town. Besides, we already have enough leftists in D.C. to kill the country.

Posted: Thursday, October 22, 2009
Article comment by: Parker Anderson

One thing I don't get (silly me), do we still use the ballots we have and mail them in now for future counting? Or do we wait and see if the court orders new ballots? Will those who have already mailed in their ballots (I haven't) be allowed to vote again if new ballots are ordered?

Posted: Thursday, October 22, 2009
Article comment by: shame on you

To all of you who so against what Paul Katan did and are so sure that the corrupt little City government is so darn right. I can just guess what country you are from, China, Russia, Mexico or some other country that doesn't give their citizens the right to vote or do anything or say anything against the corrupt shenanigans they pull off. What ever happened to America?

Posted: Thursday, October 22, 2009
Article comment by: Can't vote now.

My wife and I were going to vote (not for Katan) and I favor the 401 and 2 of the other candidtates but we threw our ballots out when the judge declared the ballots invalid. So we will not vote. This is a very messed up election and I don't think it's Mr. Katan's fault for trying to get his name on that ballot. I know a lot of people who will not vote now.

Posted: Thursday, October 22, 2009
Article comment by: Prescott voter

Again, vague or ambiguous language in our City Charter seems to be at the root of this mess. Hope the new mayor and council will spend a few dollars to clean up the city charter to save us lots more money in future legal fees (and put Gil Shaw out of business.)

Posted: Thursday, October 22, 2009
Article comment by: Dave

Apples--- You've not read the charter and wouldn't know how to stay awake long enough to figure out what it says. Stop acting like an ignorant conservative. Katan's move is completely legitimate. The City, Mayor and Council have not acted in the best interest of the citizens of Prescott. They should have avoided even a hint of impropriety by allowing a 7th place finisher onto the ballot. As it stands now, everything the next council will want to implement will be challenged and fought over, leaving the government in a stalemate. This will serve the elected officials well, but not the citizens. Katan gave the City an out by requesting that he be properly "advertized" as a write in candidate, but got nowhere. What the heck to you expect the guy to do, give up and go home. Nope- the local ranking repubs are in for a fight now. Moderates like myself know when the deck is stacked and will likely join in against this action. Good Luck Paul.

Posted: Thursday, October 22, 2009
Article comment by: No name provided

Joan, you not voting makes a whole lot of sense to...hmmm, I can't imagine who.

Posted: Thursday, October 22, 2009
Article comment by: Write in Paul Katan's Name

Paul Katan is absolutely right to, and within his rights to, legally contest the dirty rotten tricks that the COP has used to manipulate the results of this election. The city charter clearly states if there are three open slots for the City Council, then there should be six folks listed as choices! If the city fails to place him on the ballot in a new election, I am certanly going to write him in during the current ballot mailing. He has a lot of moxie and will not bend and fold like many of the current council.

Posted: Thursday, October 22, 2009
Article comment by: No name provided

Interesting article.

Posted: Thursday, October 22, 2009
Article comment by: Joan Donahue

I for one refuse to vote in this election until they clean up the mess that someone in this city has made and you can bet your bottom dollar that was a planned move to keep Katan's name off the ballot, plus the timing of Bell's removing his name from the ballot was no coincidence. Who, what, and why, still need to be investigated. This smells like a dead rat to me.

Posted: Thursday, October 22, 2009
Article comment by: How about them apples

As I've said before, the City IS and HAS BEEN clearly correct on this matter all along. Only those who DIDN'T read the City Charter or CAN'T comprehend what they read or simply don't care what it says and are in favor of Katan could think otherwise. The only problem is that Shaw convinced Judge Bluff he had merit when in fact Katan did not have legal standing. The appellant court will clear this election to go forward in a heart beat without Katan hanging on the coat tail of an election he already lost once. What a waste of time and money to have to fight this. NOW the very best thing that can come from all this would be IF ALL Katan's supporters would simply boycott this election. The reason I say this is because this sub-crowd of voters Katan represents, if they didn't vote would favorably impact a couple OTHER ballot items. How about them apples.

Posted: Thursday, October 22, 2009
Article comment by: Scotty

Hogan's argument contends that "The danger in delaying an election on Proposition 401 is obvious. Without Proposition 401, the City Council can execute contracts that are otherwise prohibited by the proposition for at least two years." What contracts would those be? Could they be water project contracts? Why didn't you just call it the "stop the pipeline initative" to begin with...oh yeah, you can't try to fool the elderly and uninformed by telling them it's about "taxpayer protection", which it's not. What a Fraud.

Posted: Thursday, October 22, 2009
Article comment by: Gary

these actions will only hurt you in the polls Paul

Posted: Thursday, October 22, 2009
Article comment by: Hypocrisy?

If Mr. Katan is so willing to stand up for what is right and follow the letter of the law then why did he not do so in 2002?

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