GILBERT'S UTILITY FUTILITYCRESADE TO SEIZE APS TERRITORY ENDS WITH A WHIMPER
In an east Mesa courtroom on Election Day, November 3, John Barry stood alone, the last warrior in a five-year fight between his tiny hometown of Gilbert and utility giant Arizona Public Service Company.
Representing himself, Barry asked the judge to force the Gilbert Town Council to carry out its takeover of APS utility operations in central Gilbert. The council pulled the plug on the takeover last December, four years after Gilbert residents--spurred by town studies promising cheaper electric rates--voted to authorize the move.
Noting the irony of his Election Day appearance, Barry asked the judge to decide once and for all "whether the results of a mandatory election are mandatory."
"If the politicians are not bound by a question on the ballot," Barry wrote in a brief filed before the hearing, "why do we bother to have elections?"
Gilbert, which once was APS' adversary in the case, was Barry's foe on November 3. Steven Bennett, attorney for the Town of Gilbert, told the judge that the 1987 vote merely gave the town permission to take over the APS zone but didn't mandate it. He said the town had a right to halt the takeover because it no longer looked economically feasible; Gilbert could no longer guarantee that its rate would be lower than APS'.
Barry, a jovial, retired teacher, knew his case was a long shot. Several attorneys, fearing that APS would intervene in the suit, had declined to represent him.
In 1987, it was Gilbert--then with a population of 17,600, half its current size--that was the underdog. After a series of APS rate hikes in the early Eighties, the town began to explore alternatives for the four-square-mile area (the remainder of Gilbert is served by Salt River Project). The City of Page had recently taken over electric service from APS, and consultants predicted a Gilbert-run utility could undercut APS rates by as much as 10 percent over ten years.
But APS drew the line at Page, fighting Gilbert every step of the way. "It's our livelihood. . . . We took steps to try to maintain our company," says APS spokesperson Maria Arellano.
Despite a fierce campaign by APS in which utility employees went door to door in Gilbert, residents in September 1987 narrowly passed two ballot measures, one authorizing the takeover and the other approving issuance of up to $27 million in bonds to pay for it.
After withstanding two APS-backed challenges to the validity of the election, Gilbert began condemnation hearings. It negotiated several arrangements to get the operation off the ground, including a deal in which the City of Mesa would run Gilbert's operations as part of a settlement of an unrelated legal dispute between the two communities.
But Gilbert's plans began to unravel. "APS' tactic was delay and conquer, and that's what it came down to," says Steve Chader, a former town councilmember.
APS fought condemnation proceedings, and the town's legal fees began to mount (reaching $1.5 million by 1991). APS' electric rates, meanwhile, were not increasing as rapidly as the feasibility studies had envisioned. And the makeup of the town council changed.
New councilmembers weren't so convinced that the town could offer lower rates ten years down the road. Although the town was perhaps only weeks away from resolution in its legal battle with APS, some councilmembers feared the outside chance that an appeals court might overturn an earlier denial of severance damages to APS. That would add millions to takeover costs.
In December 1991, the council voted 4-3 to halt the takeover and strike a settlement deal with APS under which Gilbert agreed to pay APS' legal fees if it attempted another takeover within five years.
Barry, who had been watching the fight from the sidelines, was furious--both with the decision to halt the takeover and with the "cushy" settlement for APS. He was upset that the council did not wait for the appeal to come down before making its decision. He felt "disenfranchised."
Along with others who lived in the disputed area, Barry took up the fight. The citizens filed a petition to put the takeover question back to the voters and initiated a recall effort against Mayor Jo Albright and Vice Mayor Paul Beavin, both of whom had voted to halt the takeover. Albright resigned rather than face the recall; Beavin retained his seat in the recall election.
The town refused to put the question on the ballot again, claiming the decision to abandon was an administrative move, not a legislative action subject to a referendum.
Barry found a lawyer to represent the citizens in their quest for a new election (that case is pending), but he wound up representing himself in his claim that the town had no authority to stop the takeover.
Barry had "no idea" what to do, but went to a legal typing service he found in the telephone book and told the proprietor, "I want to sue the Town of Gilbert for arbitrarily and capriciously overturning the vote of the electorate."
He then spent months in the library researching his case and writing motions, and met several times with Tim Hogan, director of Arizona Center for Law in the Public Interest.
On Election Day--more than five years after Gilbert's citizens narrowly approved the takeover--Barry went before Superior Court Judge Kenneth Fields. Barry told the judge that "never has a town or city council in Arizona overturned the results of a mandatory election."
Fields granted Barry about 15 minutes to make his case--not the 45 minutes Barry had planned for. He had to gloss over some of his main points; he became emotional. "Nothing grows in this area, your honor," he said. "Everything grows in the SRP area."
Bennett, the town's attorney, criticized Barry for presenting a "litany of facts" without addressing many of the legal issues. He said Barry failed to show why Gilbert could not halt the takeover.
When Barry left the courtroom, his ever-present grin had vanished. His confidence was shaken.
"I did lose my temper," he says. "You're not supposed to lose your temper in court."
Earlier this month, Fields ruled that the voters "authorized . . . but did not mandate" Gilbert to establish the utility business. "Councilmembers were acting properly in December 1991 when they reached a compromise agreement with the Arizona Public Service Company," Fields wrote in a three-page ruling.
Although the lawsuit requesting a town plebiscite on the council's action is still pending, Barry admits the outlook is bleak. Even if the matter is put to a vote, it may well be defeated, he says.
"I'm through," Barry says. "I gave it my best shot, but there's nothing else I can do." For all practical purposes, the fight--billed as "David versus Goliath" in 1987--is over. Goliath won.
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