An appeals court has granted Democrat Gabriela Mosquera’s request for emergent relilef in her appeal of a lower court’s ruling that annulled her November election victory.
The ruling means Mosquera will be sworn in as a new Assemblywoman at noon tomorrow absent any further action.
Mosquera won election to the Assembly in the 4th District, but her victory was challenged by Republican Shirley Lovett on the grounds that Mosquera had not lived in the district for one year prior to the election.
A Superior Court judge ruled in Lovett’s favor, invalidating the election results. Mosquera had argued that the residency requirement was uncsontitutional based on a 2001 federal court ruling. But Superior Court Judge George Leone dismissed that ruling, saying that the residency requirement had been upheld in other states.
Mosquera appealed for emergent relief in hopes of having a decsion in time to be sworn in Tuesday.
In granting the relief, the appeals court ruled that Mosquera had shown the proabability of success in an appeal. Mosquera based her appeal on the grounds that if the state begins to uphold the one year residency requirement, it should be only on cases going forward and not retroactively.
Attorney Matt Wolf, who represents Lovett, said he will file an application for the case to be heard before the Supreme Court in advance of tomorrow’s swearing in. If the state’s high court refuses to hear the case, Wolf said he is confident he will win the appeal. Wolf said the issue of prospective application of the residency requirement – only cases going forward – was never raised during the initial trail before Judge Leone and should not have been raised during an appeal.
“I think we will win eventually, but in the meantime, we believe that Gabriela Mosquera will be violating the constitution if she takes the oath of office tomorrow,” Wolf said.
Mosquera Attorney Bill Tambussi said the issue of retroactive application of the measure was raised in the trial court.
“(Wolf) should read the record and Judge Leone’s opinion because it did come up,” he said. “The decision today is exactly what it should be and it’s one that carries out the will of the voters. That’s what will happen tomorrow when miss Mosquera is sworn in before the Assembly.”
