Posted on 06/24/2004 6:27:29 AM PDT by Theodore R.
Ciro wins one Rodriguez's re-election hopes alive; Cuellar to fight ruling
BY TRICIA CORTEZ Times staff writer
Wednesday afternoon, attorneys in the drawn-out electoral battle between Henry Cuellar and Ciro Rodriguez received the long-awaited phone call from the 4th Court of Appeals.
In a 2-1 vote, the three-judge panel reversed the ruling of the lower court, stating the visiting trial judge erred when he did not allow Rodriguez to introduce evidence of alleged voting irregularities.
The case has been remanded back to Laredo for trial although no date has been set.
Just last week, Cuellar expressed confidence the court would issue a ruling in his favor.
At a late Wednesday press conference, Cuellar said he was "disappointed" with the court's ruling but said his legal team would file a motion for enbanc Monday.
The motion will request a rehearing before all seven justices of the 4th Court of Appeals.
Shortly before the Cuellar press conference, Buck Wood, Rodriguez's attorney, anticipated that Cuellar's team would be filing these motions.
"The other side is going to do everything in their power to stall this," Wood said. "That's what I'd be doing if I were them."
Cuellar, meanwhile, has his eyes set on the November general election.
"Tomorrow morning, when I wake up, I will still be the Democratic nominee. I'll still be ahead by 58 votes," he said, adding, "Tomorrow, when Ciro Rodriguez wakes up, he'll still be the person who lost the primary."
If the case comes back to Laredo for trial, both parties agreed it should last one to two weeks.
Both men are vying to become the Democratic nominee for the 28th Congressional District, which covers 11 counties, and includes the eastern and southern portions of Laredo and Webb County.
Ruling in Rodriguez's favor Wednesday were Chief Justice Alma L. Lopez and Justice Catherine Stone, while Justice Paul W. Green gave a dissenting opinion.
Rodriguez, the incumbent congressman from San Antonio, said he was "extremely elated and pleased."
"We've asked for our day in court and we'll finally have it," he said. "The bottom line is we have the evidence and we're ready to proceed."
The appellate court's decision comes nearly two weeks after oral arguments were presented in San Antonio.
In late May, Rodriguez filed his appeal, and asked the court to overturn a ruling issued by Visiting District Judge Joseph Hart, which dealt a critical blow to his case.
At a May 4 hearing in Laredo, Hart ruled that Rodriguez could not amend his original pleading to introduce evidence of alleged voter fraud, which Rodriguez claimed had reversed the true outcome of the election.
Hart ruled that introducing the evidence would essentially create a new case and therefore constitute prejudice and surprise.
Rodriguez disagreed, and contended that his amended pleading, which contained the names of more than 100 alleged unqualified voters, merely fleshed out his original pleading. It simply alleged that irregularities occurred in the casting, counting and recounting of ballots.
Hart, however, agreed with Cuellar and said the evidence would create a new lawsuit and constitute "prejudice and surprise."
The 4th Court overruled Hart in their Wednesday decision, and said "the trial court abused its discretion in striking Rodriguez's amended pleadings."
The Cuellar team failed to meet the burden of demonstrating this surprise or prejudice, the 4th Court ruled.
"Because the (amended pleading) did not inject a new cause of action, Cuellar had the burden to create a record demonstrating that the amendment resulted in surprise or prejudice," the ruling states. "Cuellar has not met this burden."
On another point, the 4th Court will not allow Rodriguez further inspection of ballots.
Rodriguez initially won the March 9 Democratic primary by a slim 145 votes, out of nearly 49,000 ballots cast.
He lost the nomination, however, when Cuellar requested a manual recount of all ballots and became the nominee by a 203-vote margin.
During the recount, he picked up 414 votes in the two bases of support: Webb and Zapata counties.
Rodriguez subsequently filed an election contest. When Hart ordered a recount of the recount, Cuellar's margin shrunk to 58 votes.
(Staff writers Laurel Almada and Erinn Taylor contributed to this report.)
06/24/04
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