Aaron Hand of Bunsow De Mory LLP, along with Lee Fink of Brower Law Group, APC and Brett Murdock of the Law Offices of Brett Murdock, secured a preliminary injunction confirming the rights of citizens to select their representatives, preventing two incumbent city council members in the City of Mission Viejo from unlawfully extending their terms of office beyond the two-year terms to which they were elected by voters. And the City’s attempt to use California’s anti-SLAPP provisions to prevent a citizen—in this case, a retired veteran—from challenging the illegal actions of the City was soundly rejected by the Court, which also ordered that fees and costs may be recovered for having the respond to the City’s motion.
Hon. Walter Schwarm issued a ruling on June 28, 2022 that requires the City of Mission Viejo to hold elections for all five city council seats in the November 2022 election. Judge Schwarm’s ruling comes in a case brought by Mission Viejo resident Michael Schlesinger regarding the City’s consistent refusal to call elections for councilmembers elected to two-year terms when those terms expired.
While city council members are typically elected to four-year terms, the City Council elections held in November 2020 were for two-year terms, to settle a California Voting Rights Act lawsuit filed against the City. In November 2020, Mission Viejo residents elected two city council members (Trish Kelley and Brian Goodell) to two-year terms. But rather than placing those open seats, corresponding to newly created Districts 2 and 4, on the ballot this November, the City Council indicated that it would unilaterally, and without a vote of the public or even the Council, extend those terms.
In response to Mr. Schlesinger’s efforts to enforce the right to vote of the people of the City of Mission Viejo, the City accused Mr. Schlesinger of infringing its First Amendment rights and filing a frivolous lawsuit. The City filed an anti-SLAPP motion to dismiss the case. The Court’s ruling not only rejects the City’s assertion, but finds that the City’s position is without merit and authorizes Mr. Schlesinger to seek attorneys’ fees for responding to the City’s motion.
The Case is Schlesinger v. City of Mission Viejo, Orange County Superior Court (OCSC) Case No. 30-2022-01253878-CU-WM-CJC
Background
This case is one of two related cases now pending before the Superior Court to uphold the rights of the citizens of Mission Viejo to actually elect city council members when their terms expire.
The first case, Schlesinger v. City of Mission Viejo, seeks a Writ of Mandate requiring the City to place Districts 2 and 4 up for election in November, 2022 as the two-year elected terms of council members Brian Goodell and Trish Kelley–whose seats correspond to those Districts–will expire in in December 2022.
The second case, a Quo Warranto action entitled People of the State of California ex rel. Schlesinger v. Sachs, Bucknum, and Raths, OCSC Case No. 30-2022-01262431-CU-JR-CJC seeks a declaration that Mayor Wendy Bucknum and Councilmembers Ed Sachs and Greg Raths do not properly hold office because they were elected to two-year terms of office in 2018, and were never re-elected when their terms of office expired in December 2020.
