Court orders Ed Foster seated as Mayor of Quartzsite

By JOHN GUTEKUNST
Parker Pioneer
Wednesday, October 17, 2012 10:17 PM MST

La Paz County Superior Court Judge Michael Burke has granted Quartzsite resident Ed Foster’s request for a Writ of Mandamus and ordered him sworn in and seated as the town’s mayor. At a hearing Oct. 17 in Parker, he ruled the Town Council had no authority to add qualifications for elected officials beyond those set by the state, as the town had in an ordinance which stated persons who owed delinquent taxes, fines or fees to the town could not serve in elected office.

Burke ruled further that, even if the council had this authority, the funds Foster owes the town were not included the section of the town code regarding elected officials owing money to the town.

The council will have until their next regularly scheduled meeting Oct. 23 to swear Foster in and seat him.

Foster was the winner of the town’s May 15 election for Mayor, defeating Jerry Lukkasson, 401 voted to 315. On June 4, the Town Council declared he was not qualified to serve as mayor. This was done following an executive session, and no reason was given at the time. It was later announced that, under Section 2-1-10 of the town code, Foster was disqualified because he owed the town $2,500 from a court settlement.

Foster filed suit, seeking a Writ of Mandamus (from Latin “We command”) to order the council to seat him as mayor. In September, his attorney, Julie LaBenz, expressed optimism the case could be settled out of court.

The council rejected a proposed settlement at their Oct. 9 meeting. Some of the persons from the audience who spoke during the meeting said the courts should be allowed to decide the case.

In oral arguments Oct. 17, LaBenz stated the town had exceeded its authority in setting more qualifications for elected office than those set by the Arizona Constitution and Arizona Revised Statutes. She added that, even if they had that authority, Foster owed a court judgment, and that was not included in 2-1-10.

LaBenz said it was clear the Town Council would do anything to keep Foster out of office.

“The town has turned democracy upside down,” she said. “It must be made clear the Quartzsite Common Council is not more powerful than the voters of Quartzsite.”

The attorney representing the town, Kristin Mackin, of the firm of Sims Murray, responded the state has amended state statutes along the lines of Quartzsite’s 2-1-10. She added Foster had the court judgment against him and was aware of the ordinance while he filed his nominating papers.

Mackin said the council was right to be concerned about debts owed the town, and they performed their legally required duty to judge the election and the qualifications of the candidates. She said a Writ of Mandamus could only be granted when public officials have not performed their duties, and added state law provides councils with some discretion in matters like these.

Burke said the question was whether the town had the authority to set qualifications for elected officials beyond those set by the state. He cited a Supreme Court case, Powell v. McCormack, from 1969 in which the court ruled the House of Representatives did not have the authority to set qualifications for elected office beyond those set by the Constitution.

By analogy, Burke said this meant the town did not have the authority to set more qualifications than those set by state law and the Arizona Constitution. He said the council can judge the qualifications of elected officials, but they cannot set new ones. He further ruled that, even if Section 2-1-10 were valid, it did not mention or cover court judgments.

Burke granted the Writ of Mandamus and ordered Foster seated by the next council meeting. He also awarded him attorney’s fees.

“There was no other way this could’ve turned out,” Foster said after the hearing. “The council needs to realize the rules apply to them.”

Foster said the entire matter, along with the investigations of vote fraud, has cost the town a lot of money.

Foster said he hopes to work toward bringing Quartzsite back together. He said he hoped to get the town’s finances in order, and to have its insurance restored.

“I’ve got quite a job to do,” he said.