People v. Ed Sachs

315 Cal.Rptr.3d 810

The PEOPLE EX REL. Michael SCHLESINGER, Plaintiff and Respondent,

v.Ed SACHS et al., Defendants and Appellants.

G061838

Court of Appeal, Fourth District, Division 3.

Filed December 4, 2023

As Modified December 13, 2023

Appeal from a judgment of the Superior Court of Orange County, Walter P. Schwarm, Judge. Affirmed. Defendants’ request for judicial notice. Granted. Plaintiff’s request for judicial notice in support of respondent’s brief. Denied. Defendants’ request for judicial notice in support of appellants’ opening brief. Denied. Plaintiff’s request for judicial notice and to augment the record. Denied. (Super. Ct. No. 30-2022-01262431)

Ring Bender, Patrick K. Bobko, Norman A. Dupont, Jay A. Tufano, Irvine; Harper & Burns, William P. Curley, III, Orange, Colin Burns, Alexandra Halfman, Orange; Klapach & Klapach and Joseph S. Klapach, Beverly Hills, for Defendants and Appellants.

Bunsow De Mory, Aaron R. Hand; Brower Law Group, Lee K. Fink; The Law Offices of Brett Murdock, Brett M. Murdock, Brea; Moskovitz Appellate Team and

Myron Moskovitz for Plaintiff and Respondent.

OPINION

SANCHEZ, J.

INTRODUCTION

A judgment for writ of quo warranto entered in September 2022 ordered and decreed the removal from office of Ed Sachs, Wendy Bucknum, and Greg Raths as members of the City of Mission Viejo (Mission Viejo) City Council. The quo warranto judgment adjudged Sachs, Bucknum, and Raths to be holding office unlawfully because their respective two-year terms of office, to which each had been elected in November 2018, had expired in December 2020.

Sachs, Bucknum, Raths, and Mission Viejo (collectively defendants) appeal from the judgment for quo warranto. We affirm.

Sachs, Bucknum, and Raths were elected to the Mission Viejo City Council in November 2018 for two-year terms of office, rather than four years as prescribed by Government Code section 57377 (section 57377), pursuant to the terms of a stipulated judgment by which Mission Viejo settled a lawsuit brought to address violations of the California Voting Rights Act of 2001 (Elec. Code, § 14025 et seq.: CVRA). The intent of the stipulated judgment was to remedy the dilution of minority group voting rights by implementing a system of cumulative voting for Mission Viejo City Council members to start with the November 2020 general election.

To maximize the remedial effect of cumulative voting, the stipulated judgment provided that city council members elected in November 2018 would have two-year terms of office so that all five city council seats would be up for election in the November 2020 general election and every general election thereafter. Sachs, Bucknum, and Raths were city councilmembers at the time who voted to approve the stipulated judgment.

By July 2020 it became clear that cumulative voting could not be implemented in time for the November 2020 general election. As a consequence, Mission Viejo entered into an amended stipulated judgment pushing the date for cumulative voting back to the November 2022 general election. Sachs, Bucknum, and Raths did not stand for reelection in November 2020 but continued to hold office after December 2020, when their two-year terms expired. After seeking leave from the California Attorney General, plaintiff Michael Schlesinger brought this lawsuit in quo warranto as relator on behalf of the Attorney General to remove Sachs, Bucknum, and Raths from office.

The cornerstone of defendants’ appeal is the argument that Elections Code section 14029, which authorizes broad remedies for violations of the CVRA, does not permit the implementation of two-year terms of office for city councilmembers because section 57377 imposes an ironclad requirement of four-year terms. Although Sachs, Bucknum, and Raths, as Mission Viejo city councilmembers voted to approve the stipulated judgment, they argue now, as they did before the trial court, that the provision in the stipulated judgment that council members elected in 2018 serve two-year terms of office violates section 57377. Sachs, Bucknum, and Raths claim that, as a consequence, they must be deemed to have been elected in November 2018 as councilmembers to four-year terms of office and were entitled to stay in office past their two-year terms. Accordingly, defendants argue, Sachs, Bucknum, and Raths were lawfully holding office when the judgment for writ of quo warranted was entered in August 2022.

We do not need to address “the interplay” between Elections Code section 14029 and section 57377, as defendants claim we are called upon to do. Assuming defendants’ construction and harmonization of Elections Code section 14029 and section 57377 are correct, the result they propose—that Sachs, Bucknum, and Raths receive four-year terms of office—is not. In November 2018, Sachs, Bucknum, and Raths were elected as city councilmembers for two-year terms, not four-year terms. Preelection public announcements told the voters that Sachs, Bucknum, and Raths were running for two-year terms, the public election notice stated they were running for two-year terms, and the city council resolution declaring the election results declared that Sachs, Bucknum, and Raths had been elected for two-year terms. We uphold the results of the November 2018 municipal election by affirming the judgment of quo warranto.

The judgment adjudges Sachs, Bucknum, and Raths to be “guilty of usurping or intruding into, or unlawfully holding … office as member of the City Council of Mission Viejo.” This is traditional quo warranto language taken from Code of Civil Procedure section 803. We stress that quo warranto is a civil proceeding, not a criminal prosecution, and Sachs, Bucknum, and Raths have neither been charged with nor convicted of any crime.

FACTS

I. The CVRA Lawsuit Against Mission Viejo and the Stipulated Judgment

[1] Mission Viejo is a general law city¹ governed by a city council comprised of five members who for many years were elected for four-year, staggered terms. (Mission Viejo Mun. Code, §§ 2.04.010 to 2.04.140; see Gov. Code, §§ 34101, 36501, subd. (a), 36503, 57377; Elec. Code, § 1301, subd. (b).) For several decades, Mission Viejo used an “at-large” voting system under which each councilmember represented the entire city and each voter had the right to vote for all open council seats. (Elec. Code, § 14026, subd. (a).)

In 2018, the Southwest Voter Education Registration Project (SVERP) brought a lawsuit against Mission Viejo to challenge its at-large voting system. The SVERP alleged’ Mission Viejo’s at-large system for council elections diluted the voting rights of Latino voters and thereby violated the CVRA. The lawsuit was settled in July 2018 by means of a stipulated judgment (the Stipulated Judgment) providing that all elections for the Mission Viejo City Council would use cumulative voting unless Mission Viejo were to adopt voting by districts.²

Cumulative voting gives each voter as many votes as there are council seats available and allows each voter to allocate more than one vote to any candidate. As an example, if three seats are up for election, a voter may use three votes for one candidate, two votes for one candidate and one vote for another, or one vote for each candidate. Cumulative voting can make it easier for minority groups to achieve representation. In district-based voting, a city is separated into geographical districts, each represented by a council member, and voters within each district vote only for a candidate to represent their district.

(Elec. Code, § 14026, subd. (b); Gov. Code, § 34871.)

The Stipulated Judgment also provided that starting in November 2020 council elections no longer would be staggered and voters simultaneously would elect all five council seats every four years. Mission Viejo was required to amend its municipal code to reflect this change. When the Stipulated Judgment was entered, Sachs, Bucknum, and Raths were serving as Mission Viejo City Council members with terms that were set to end in December 2018. In order for all five council seats to be up for election in 2020, the Stipulated Judgment provided that the elections in 2018 for the seats held by Sachs, Bucknum, and Raths would be for two-year terms. In succeeding elections after 2018 (2020, 2024, 2028 etc.), the term of office for councilmembers would be four years.

The trial court signed the Stipulated Judgment without conducting a hearing and, in accordance with its terms, retained jurisdiction. Soon after entry of the Stipulated Judgment, Mission Viejo issued a public announcement stating, “Mission Viejo City Council Members voted into office this November will serve for two years rather than the traditional four-year terms.” When the candidate filing period for the 2018 election closed, Mission Viejo issued another public announcement which, after identifying the five candidates, stated, “[T]he five candidates are running for two-year terms rather than the typical four-year term because of the recent Voting Rights Litigation Settlement.”

II. The November 2018 Municipal Elections

In July 2018, Mission Viejo issued a public notice of election for its November 2018 election that stated the election would be for three members of the city council for “[f]ull term of two years.” The Mission Viejo City Web site announced that Sachs, Bucknum, and Raths were running for two-year terms of office “rather than the typical four-year term because of the recent Voting Rights Litigation Settlement.”

At the November 2018 election, Sachs, Bucknum, and Raths were elected to two-year terms. In December 2018, the Mission Viejo City Council adopted resolution No. 18-52 declaring that Sachs, Bucknum, and Raths had been elected as members of the city council for terms of two years, That resolution declared the notice of election to have been lawful and the election complied with statutory requirements for general law cities. Sachs, Bucknum, and Raths voted in favor of the resolution, and Sachs, as mayor,...