EPCOR asks judge to move trial (January 7, 2022)
BULLHEAD CITY — Attorneys representing EPCOR Water Arizona have asked the Mohave County Superior Court to move the upcoming trial in the eminent domain case filed by the City of Bullhead City.
Late Wednesday, attorneys from Baker Donelson, Caldwell & Berkowitz P.C. and Mooney, Wright, Moore & Wilhoit PLLC filed an emergency motion for a change of venue based on their belief that the city and news coverage of the ongoing proceedings have tainted the local jury pool.
The motion asks Judge Charles W. Gurtler to move the trial that will determine the court-ordered sale price of EPCOR’s system to the city, scheduled to begin Jan. 24 in the Mohave Superior Court’s Bullhead City courthouse, to an unspecified location outside Mohave County.
“The city’s efforts to prejudice the jury pool this close to trial warrants a change in venue pursuant to (Arizona Revised Statute) 12-406,” the motion states.
“The court has the power to change venue here due to the city’s prejudicial remarks in the press and otherwise.”
The request for change of venue cites media coverage — particularly by the Mohave Valley Daily News — that included “inflammatory comments” by city officials “throughout this litigation.”
It also refers to the city’s “illegal electioneering” prior to the Proposition 415 vote in 2019 that authorized the city to proceed with efforts to take over operation and ownership of the local water system.
Cited were advertisements paid for by the city and the H2O political action committee prior to the Proposition 415 election, comments made by city officials in written arguments in support of the proposition, videos posted on various Facebook accounts as well as comments made on the record during television broadcasts of open meetings of the Bullhead City Council.
The motion alleges that city officials and supporters of Proposition 415 cast EPCOR’s incorporation as a Canadian company in a negative light, which the filing called “personal attacks directed at EPCOR.”
The Arizona Attorney General’s Office did find that the city illegally spent city funds — or used advertising space that was a public resource — for “local billboards to display electioneering messages in favor of Proposition 415” in violation of ARS 9-500.14.
The filing also accuses the city of making statements during court depositions and during “some sort of site tour orchestrated for the reporter,” referring to a site tour conducted in September for the benefit of Bullhead City Council members and staff.
A Mohave Valley Daily News reporter provided coverage of the tour.
It also refers to a Jan. 4 article published by the Daily News about unexpected problems encountered since the Sept. 1 takeover of operation, noting the story and comments contained in it were made “less than three weeks before trial and just after the juror questionnaires in this case had already been returned by prospective jurors.”
“The city’s comments so close to trial (and after jurors have already responded regarding their knowledge of the case) serves no purpose other than to unfairly prejudice the jury pool.”
The city’s comments were offered in response to questions posed by the Daily News and were not unsolicited.
The motion filing also asks the court for another form of relief if a change of venue is not granted, advising the court that “it should mitigate the harm done by the city’s comments by excluding Bullhead City residents from the jury” and other specific actions.
“If the court is unwilling to grant a change of venue for any reason, however, it should still attempt to mitigate the prejudice caused by the city’s most recent statements to the press.”
The 57-page motion — 16 pages of text and 41 pages of supporting exhibits — concludes that “Frankly, the city has simply attempted to do publicly what it cannot do through the court system by influencing the jury through prejudicial comments.”
“Because the city’s own actions have made it unlikely that EPCOR will be able to obtain a fair and impartial trial in Mohave County, EPCOR respectfully requests that the court transfer venue of this action pursuant to ARS 12-406. If the court is unwilling to change venue for any reason, in the alternative, EPCOR respectfully requests that the court address and mitigate the city’s public comments by (1) excluding Bullhead City residents from the jury; (2) precluding the city from introducing any evidence of alleged post-date-of-value information regarding the city’s analysis and operation of the system; (3) ordering that the city shall not make any further public comments designed to prejudice the jury pool before trial; and (4) ordering that the city should pay EPCOR’s cost in having to bring this motion before the court.”
The filing did not specify the costs referenced in the fourth requested action.
The motion asks for “expedited argument and ruling.”
City officials declined comment.
A pretrial conference in the case is scheduled before Gurtler at 9:30 a.m. today at the Bullhead City courthouse.
Source: Bill McMillen, Mohave Daily News