SANTA ANA, Calif. (CNS) — An Orange County Superior Court judge removed three of five Mission Viejo City Council members from office Wednesday in a long-running dispute over the way the city elects its council members, but delayed imposition of his ruling for 30 days to allow the city to appeal.
The order takes effect at 5 p.m. Wednesday if city officials do not appeal.
On Tuesday, Judge Walter Schwarm signed an order for an election of all five council members in November, but city officials were already complying with that.
On Wednesday, Schwarm removed Council Members Wendy Bucknum, who is the mayor, Ed Sachs, the mayor pro tem, and Greg Raths because their terms ended in December 2020. That would leave just Council Members Brian Goodell and Trish Kelley on the board.
Schwarm said Tuesday that he wanted to “sleep on it” regarding whether he has the authority to decide what’s next for the council. On Wednesday, he decided it should be left up to the city whether one or more council members should be appointed to reach a quorum.
“I’m disappointed,” Raths told City News Service. “I like serving my community, but if it’s what the judge says I’ll go along with and run for re-election in November.”
Raths said it’s possible that if the city does not prevail in an appeal and he has to leave office in a month, the council could just reappoint the three members until November.
City Attorney Bill Curley on Tuesday argued that Schwarm should leave the full council in place until November. Curley said cutting the council down to just two members leaves “a lot of uncertainties” for city officials trying to do business in the next several weeks.
Schwarm responded by saying that “the city is always going to have these uncertainties,” with turnover of elected leaders. “I don’t know what the answer is — maybe it’s not the judge’s problem,” Schwarm added. “But I don’t take the community’s concerns lightly.”
Also at issue is whether Bucknum, Sachs and Raths can claim that they are council members on November’s ballot. Attorneys for Michael Schlesinger, a retired veteran who sued to oust the three council members and prompt elections, have argued that the three cannot claim to be incumbents because they were improperly in office and are no longer council members.
The dispute dates back to litigation in 2018 that challenged the way the city elects its council members. The city had been doing what is known as at-large elections in which everyone in the city votes on the candidates for council, but the litigation challenged that, arguing that state law required the city to separate into districts so residents of each district could elect their own representative.
Instead, the city agreed to a settlement in which it would hold elections by a process called cumulative voting, which is often done in corporations and allows voters to cast several ballots for one candidate. Under that scenario, a voter could cast five ballots for Raths, for example, and no one else.
The Secretary of State’s Office rejected the cumulative voting plan, saying it was not legal for a city such as Mission Viejo, which is a general law city and not a charter city. The registrar of voters and secretary of state officials said they did not know how to execute such a voting plan, Raths said.
Raths said he favored the district-wide voting from the beginning, but research showed that Latino residents in the city were spread evenly throughout the community and officials could not come up with a minority-majority district, so they pivoted toward the cumulative voting plan.
“We thought if the Latino community had a candidate, they could all get behind that person with five votes per person, but the secretary of state said no,” Raths said.
City officials agreed to two-year terms for the three council members in 2018, so the whole council could all be up for election in 2020, but it was contingent on the settlement that included the cumulative voting plan, Raths said.
When that fell through, city officials converted their terms back to four-year terms and the city clerk and city attorney advised that such a move was OK, Raths said.
When Schlesinger sued, Raths said, “I’m thinking this guy doesn’t have a case. I figured our city attorney and city clerk knows what they’re talking about, but now we’ve got to step down. I’ll step down whenever they want me to and I’ll run for re-election.”
In the 2020 election, the council did not hold an election for Raths, Bucknum and Sachs “effectively granting themselves a two-year extension,” the attorneys for Schlesinger argued in court papers. “And now, in 2022, the city is poised to do so once again, affording the same illegal benefit to the other two council members.”
Schlesinger’s attorneys have argued for staggered elections in November so that at least two of the council members are elected to two-year terms and the other three for four-year terms. That issue will apparently be left up to the next city council after November’s election.
Schlesinger’s attorney, Aaron Hand, told CNS that he hoped city officials would not appeal.
“Their tactic all along has been to delay... which we find abhorrent,” Hand said. “We hope if they do (appeal), they do so with great speed so the finality of this order can be confirmed so they can’t continue this false narrative that it’s a tentative ruling.”
Raths said council members only receive a $1,000 stipend, so it’s tantamount to a volunteer job and he serves because he enjoys it.
“We serve the city and make sure the city is run effectively and efficiently,” Raths said. “It’s just something I enjoy doing.”
Raths blamed the litigation on “political maneuvering by the Canyon Democrats to kind of smear our good name so their candidates can win election in November.”
Raths is running against his across-the-street neighbor Sachs, so it is possible they could split the vote and a Democrat wins that district, he said.
Hand argues that with health insurance and pension benefits, the real value of compensation for the council members is closer to $25,000 annually.
“This is tremendous vindication for the voters of Mission Viejo,” Hand told reporters later. “As my client Michael Schlesinger commented earlier, this is about voting rights and about the people’s right to vote. The municipality decided not to call an election and almost got away with it, and that is a true and very scary infringement on the fundamental right this country runs on.”