Mission Viejo taxpayers could have to pay $715,000 in attorneys' fees stemming from a pair of lawsuits filed after the city council extended the terms of its entire membership in 2020 without an election.
That’s the most recent tally stemming from Orange County Superior Court Judge Walter Schwarm’s order in one of the cases late last week.
Schwarm previously found last year that former councilmembers Ed Sachs and Greg Raths, and current Councilmember Wendy Bucknum, had overstayed their terms in office by more than two years. Schwarm also ordered the city to put the two other council members, Brian Goodell and Trish Kelley, whose terms were up in 2022, on last year's ballot.
The city is still fighting the case against Sachs, Raths and Bucknum. Goodell and Kelley were both reelected by voters in November. An appeals court is expected to issue a ruling in mid-December.
It started over voting rights
In 2018, the city of Mission Viejo was studying the possibility of switching from at-large to by-district elections in order to stave off a legal threat under the California Voting Rights Act. The law was intended to help remedy the lack of political power among Latinos and other groups in California whose votes have historically been diluted in local elections.
Adopting by-district elections, where residents elect a representative from their geographic section of the city, is the standard remedy for challenges under the state voting right act. But Mission Viejo decided instead to adopt cumulative voting, where voters cast as many votes as there are seats, and they can cast multiple votes for one candidate.
The California Secretary of State rejected the city's plan in 2019, leaving city officials scrambling to adopt a new voting system before the 2020 election. The city agreed with the voting rights' plaintiffs to put off the switch until the 2022 election, and in the meantime, the city council voted to extend their own terms to bridge the two-year gap.
For more on what happened read: An Orange County City Could Soon Be Without A Functioning Government. Here's Why You Should Care
Residents take notice and push back
In 2021, some residents started questioning why three council seats hadn't been on their November 2020 ballot. Then they decided to take the city to court.
The city argued that they were just trying to comply with the settlement agreement in the voting rights case, which had been signed off on by Schwarm, the Orange County Superior Court judge.
But in 2022, Schwarm ruled against the city, finding that Goodell and Kelley could not remain in their seats until 2024, as the council planned, but rather had to run for their seats in the 2022 election.
Then, just before the election, Schwarm ruled that Sachs, Raths and Bucknum had overstayed their terms in office by more than two years and should've had to run for re-election in 2020.
The city appealed the latter decision. But while the appeal was pending, the court ordered the three councilmembers to step down, leaving Mission Viejo for a short time last year with just two of its normal five councilmembers.
What's next?
So far, Schwarm has ordered the city to pay plaintiffs a combined $715,000 for attorneys fees in the two cases. Mission Viejo is still trying to fight off at least one of the rulings. City Attorney Wiliam Curley told LAist in an email that the sum awarded by Schwarm is about half as much as the plaintiff's initially sought. Curley said the city “has been working hard to seek proper fees and cut the chaff out of very inflated numbers."
Lee Fink, one of the lawyers for the plaintiffs, said in an Oct. 8 news release that plaintiffs had offered to settle the question of attorneys' fees in February for $550,000 but the city rejected the offer.
Meanwhile, the appeals court still has to make a final decision in the case. Michael Schlesinger, the lead plaintiff in the case, told LAist if the appeals court sides with him, it could put in question the validity of all of the decisions made by the Mission Viejo City Council during the two-year period in which three council members in question were acting without voter approval.
Those decisions include a controversial vote to issue $19 million in bonds to purchase a downtown building, which forced the city to make cuts in other areas like after school care.
The appeals court is expected to rule in the case before the end of the year.
