On September 21, the Hon. Walter Schwarm of the Orange County Superior Court issued Judgment finding Defendant Councilmembers Ed Sachs, Greg Raths, and Wendy Bucknum “guilty of usurping or intruding into, or unlawfully holding the office of member of the City Council of Mission Viejo, and is excluded and removed from his (or her) respective office as City Council Member of the City of Mission Viejo as of 5:00 p.m. on August 31, 2022….”
The Court originally issued its order on August 31, 2022, and allowed the Defendants a 30-day stay to file an emergency “writ” petition with the Court of Appeal. Having failed to file for emergency relief by September 20, the Defendants attempted to argue that the Court’s stay should be interpreted as an indefinite one–lasting until any appeal was ultimately decided. Judge Schwarm summarily rejected that interpretation of his Order.
As noted during Tuesday’s hearing, the City Council had done nothing to prepare for the ouster of the Defendants since the Court issued its ruling on August 31st. In public statements, the City has indicated that it intends to “go dark” unless the Court of Appeal intervenes.
Aaron Hand, counsel for the resident that initiated the lawsuit on behalf of the People of the State of California responded: “It is unfortunate that the City Council, caught in a years-long lie, plans to pull a political stunt and shut down the government just before an election. Their claim that the City cannot operate with only two remaining members is false. There is clear precedent allowing those two members to appoint a third so as to form a quorum and conduct City business. That path forward has been clear since the Attorney General authorized this lawsuit in May.”
Defendants and City have attempted to delay a decision on the merits by falsely claiming that holding the Defendants accountable will adversely affect the City’s operations. But there is clear precedent from the California Supreme Court in the case of Nesbitt v. Bolz, 13 Cal. 2d 677 (1939), allowing the remaining two councilmembers to appoint a third councilmember to conduct the City’s business. At an August 30th hearing, the Court offered to include language in its Order providing clear direction for the remaining council members, but the City Attorney outright refused to even discuss the issue, calling it a “separation of powers issue.”
Michael Schlesinger, the Mission Viejo resident that petitioned the Attorney General to seek relief on behalf of Mission Viejo’s residents stated: “I appreciate Judge Schwarm’s diligence in deciding these issues. While it is unfortunate that the Defendants still refuse to accept responsibility, the Order confirms the rights of the people to elect their officials. All of the incumbents are on the ballot this Novembers; I urge my fellow residents to hold all of those incumbents accountable for stealing away their rights in 2020, and make their voices heard at the ballot box.”
This case stems from the City’s decision in 2018 to hold elections for two-year terms for the City Council in order to settle a case brought against the City for violating the California Voting Rights Act (“CVRA”). However, in 2020, the City had not implemented the settlement and the City Council unilaterally decided that the incumbent members would holdover without an election. Michael Schlesinger, a resident of Mission Viejo, brought this action to remove the offending councilmembers to remove them from office, a procedure which required approval from the California Attorney General. The Attorney General granted approval to bring this action on May 26, 2022, and the case was filed in the name of the People in the Orange County Superior Court later that day.
The City had previously attempted to unilaterally extend the term of the other two councilmembers, Trish Kelley and Brian Goodell, who had been elected to two-year terms in 2020. Mr. Schlesinger brough a lawsuit to force the City to hold elections to those seats, and Judge Schwarm previously issued a writ of mandate requiring the City to hold elections. As a result of Mr. Schlesinger’s diligence, all five city council seats will be on the November ballot.
A copy of the Judgment and operative minute orders is available for download:
For More Information:
Aaron R. Hand (Bunsow De Mory LLP [email protected], (949) 258-9237); or
Lee Fink (Brower Law Group, APC, [email protected], (949) 328-1548); or
Brett Murdock (Law Offices of Brett Murdock, [email protected], (714) 582-2217)
