The Votes Are In!
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View Winners → Politics Aug 30, 2022
Mission Viejo in Orange County. | Photo courtesy of Don Ramey Logan/Wikimedia Commons (CC BY-SA 3.0)
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An Orange County Superior Court judge signed an order Tuesday for an election of all Mission Viejo City Council members this November, but stopped short of finalizing his tentative ruling to boot three of the council members until then.
Judge Walter Schwarm tentatively ruled that City Council members Wendy Bucknum, who is the mayor, Ed Sachs, the mayor pro tem, and Greg Raths should not still be serving because their terms ended in December 2020. That would leave just Council members Brian Goodell and Trish Kelley on the panel.
Schwarm said he wanted to “sleep on it” regarding whether he has the authority to decide what’s next for the Council.
City Attorney Bill Curley argued that Schwarm should just leave the full Council in place until November. Curley said cutting the Council down to just two members leaves “a lot of uncertainties” for city officials trying to do business in the next several weeks.
Schwarm responded that “the city is always going to have these uncertainties,” with turnover of elected leaders. “I don’t know what the answer is — maybe it’s not the judge’s problem,” Schwarm added. “But I don’t take the community’s concerns lightly.”
Schwarm said he wanted to do more legal research on this authority in terms of ordering whether one or more Council members could be appointed before the election. He ordered attorneys for both sides to return to court Wednesday morning to continue discussions.
Also at issue is whether Bucknum, Sachs and Raths can claim that they are Council members on November’s ballot. Attorneys for Michael Schlesinger, a retired veteran who sued to oust the three Council members and prompt elections, have argued that the three cannot claim to be incumbents because they were improperly in office and are no longer Council members.
The dispute dates back to litigation in 2018 that challenged the way the city elects its Council members. The city had been doing what is known as at-large elections in which everyone in the city votes on the candidates for Council, but the litigation challenged that, arguing that state law required the city to separate into districts so residents of each district could elect their own representative.
Instead, the city agreed to a settlement in which it would hold elections by a process called cumulative voting, which is often done in corporations and allows voters to cast several ballots for one candidate. Under that scenario, a voter could cast five ballots for Raths, for example, and no one else.
But the Secretary of State’s Office rejected that plan, saying it was not legal for a city such as Mission Viejo, which is a general law city and not a charter city.
In the 2020 election, the Council did not hold an election for Raths, Bucknum and Sachs “effectively granting themselves a two-year extension,” the attorneys for Schlesinger argued in court papers. “And now, in 2022, the city is poised to do so once again, affording the same illegal benefit to the other two council members.”
Schlesinger’s attorneys have argued for staggered elections in November so that at least two of the Council members are elected to two-year terms and the other three for four-year terms. That issue will apparently be left up to the next City Council after November’s election.
In his ruling, Schwarm wrote, “Removal of the majority of the City Council members is a drastic measure, which the court does not take lightly, and the count intends to minimize the impact on the residents of the city by providing the city government time to plan before the vacancies occur. Therefore, the court will not remove defendants from office immediately. The court orders defendants Ed Sachs, Wendy Bucknum and Greg Raths excluded and removed from their respective elected offices as city council members of the city of Mission Viejo as of 5 p.m. Sept. 30, 2022.”
The three are allowed to run again in the November election, Schwarm said.
