A majority of the Mission Viejo City Council were tossed off the dais by an Orange County Superior Court judge Wednesday, but they won’t be officially removed until a state appeals court reviews the case.
Voice of OC first reported on the removal of Mayor Wendy Bucknum and Councilmen Ed Sachs and Greg Raths earlier this week when Orange County Superior Court Judge Walter Schwarm issued a tentative ruling saying they’d overstayed their terms in office.
Schwarm formally approved the ruling in court Wednesday morning, but changed the wording so that it wouldn’t go into effect until the city had a chance to appeal the ruling, which Mission Viejo City Attorney Bill Curley said they plan to do.
Michael Schlesinger, the Mission Viejo resident who sued the council arguing they illegally extended their terms, celebrated Schwarm’s decision in a statement Wednesday morning.
“This is a tremendous victory for Voting Rights and the people of Mission Viejo,” Schlesinger said.
Should the city lose their appeal, there is no plan in place for how the city would function with just two members since the council needs a majority of three to make official decisions.
Curley said that losing three council members could have major consequences for the city, and that they would need time to figure out a plan.
“The city needs to be able to work out whatever comes its way,” Curley said in court Wednesday morning. “You need three (council members).”
Aaron Hand, Schlesinger’s attorney, said he worries the city will use the appeal as an attempt to delay the removal of the council members.
“We hope that the city will move quickly so the people of Mission Viejo will stop having to write paychecks for their defense and the court of appeals can rule quickly,” Hand said at a news conference after the hearing. “We think the law is clear on the merits and the court of appeals will affirm the judge’s order in rapid succession.”
Hand said the city has the legal authority to appoint one council member in order to create a three-member majority, leaving the city able to function properly.
“The city can continue to do business,” Hand said, adding the city’s argument is “once again an effort to delay a decision on the merits and delay the 95,000 people who live in Mission Viejo’s right to vote.”
The issue over term extensions came after city council members attempted to convert the city from at-large voting to cumulative voting – a system that would require the entire council to go on the ballot at once.
To fix that, city council elections in 2018 and 2020 were widely advertised by the city as two-year terms, with city leaders saying they were right on the cusp of moving to a new election system for years.
However, multiple California Secretaries of State told the city council and city attorney that cumulative voting was not an approved voting method for Mission Viejo, and that without approval by the state legislature, they couldn’t use it.
But when their two-year terms were up in 2020, Bucknum, Sachs and Raths all stayed on the dais, with Curley arguing that because no changes to the city charter had been made, they were required to serve the full four-year term.
While Schwarm was the judge who initially approved the council’s term extensions in 2020, he said he wasn’t told at the time that voters thought the council was only running for two-year terms.
“The court was not provided with that information … that the city had informed the voters that the terms for the city council seats were two years,” Schwarm said during Wednesday’s court hearing.
The city ultimately threw in the towel on trying to get cumulative voting last year as they were hitting the deadline to implement a new voting system and instead switched to district elections.
Councilmembers Brian Goodell and Trish Kelley will remain on the dais through the November election, finishing out the two-year terms they started in 2020.
While they also attempted to extend their terms to four years, Schwarm ruled in an earlier case that the entire city council was required to go on the ballot in 2022.
All five council members are listed on the ballot for November’s election under the city’s new district voting method.
Sachs and Raths are running in the same district, so only one of them could be voted back onto the council later this year.
Noah Biesiada is a Voice of OC reporter and a corps member with Report for America, a Groundtruth initiative. Contact him at email@example.com or on Twitter @NBiesiada.
Angelina Hicks is a Voice of OC Reporting Fellow. Contact her at firstname.lastname@example.org or on Twitter @angelinahicks13.
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