Earlier this month, the Costa Mesa filed a lawsuit seeking a court order to place a proposed city charter on the June primary ballot after the city missed its mandatory filing deadline.

But nearly two weeks into the suit, there’s still no official record of Costa Mesa’s elected leaders approving the lawsuit or the hiring of a high-profile law firm to argue the case.

Part of that is likely to change Tuesday evening, when City Council members are slated to authorize an agreement with the law firm, Jones Day, in the matter. But by then it’s likely that a final ruling in the case will already be rendered, which critics say makes the approval after-the-fact.

And though Costa Mesa City Attorney Tom Duarte is directing the Jones Day attorneys and the city is paying for their work, Costa Mesa isn’t officially a party to the suit. The official plaintiff in the case is City Clerk Julie Folcik.

“Is this the new standard [by] which the city operates, that the Council does not have to approve initiation of litigation?” asked Katrina Foley, an attorney and former city councilwoman who will argue against the city in court Tuesday.

Foley also said she asked the city for basic information about the case last week but still hasn’t received a response. She described that as “very unusual.”

“It goes to their secrecy,” Foley added. “They didn’t want anyone to know, and that’s why they didn’t report it out. … They were hoping they could go in under the radar.”

By having the city clerk rather than the city itself as the official plaintiff, Costa Mesa avoided obligations under state law to notify the public that it was considering the suit, to allow the public to address the City Council on the issue and to announce that city leaders had decided to file the suit.

In his preliminary ruling Monday, Superior Court Judge Franz Miller indicated he will deny the city’s request to have the charter put on the June ballot, saying that the city’s lack of official role in the suit undercuts its case.

Folcik “arguably lacks standing” in the suit, and the court is “inclined” to view the city as the true petitioner, Judge Miller’s tentative ruling states. The city’s “attempt to create dichotomy between [the city] clerk and counsel is clever, but unsuccessful,” he added.

CEO Tom Hatch approved Jones Day’s hiring sometime between March 12, when the city’s election paperwork was rejected, — and March 14, according to a city report issued this week.

When the county registrar rejected the paperwork, the City Council had the authority to convene a special meeting the next day to approve the suit and hire the law firm. It also could have authorized the case during the closed session of last week’s regular City Council meeting.

Neither Duarte nor city spokesman Bill Lobdell returned calls or emails seeking comment.


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