The state’s top prosecutor said there is a “strong public interest” in having a court decide if the terms of three Mission Viejo City Council members were extended by two years without the public’s say.
Attorney General Rob Bonta’s opinion released Thursday, May 19, allows a Mission Viejo resident to file a lawsuit asking a judge to answer the question whether council members Ed Sachs, Wendy Bucknum and Greg Raths, who were elected in 2018, should have had to run for election again in 2020 or if the extension of their terms by two years because of delays in changes to the city’s election process should stand.
He said the resident’s challenge “presents substantial questions of law and fact” that warrant a court decision.
The three council members were expected to serve a shortened term while officials implemented a new voting system in response to allegations minority voting groups has been disenfranchised in the past. When in 2020, officials needed more time to get the system agreed on in a court settlement — called cumulative voting — up and running, Sachs, Bucknum and Raths remained in their seats, expecting to serve for a full four-year term.
Bonta’s decision gives the green light to resident Michael Schlesinger to pursue legal action that aims to remove them. Because this type of lawsuit challenging a public office holder’s right to be in their seat needs the attorney general’s OK, Schlesinger asked Bonta in a January application for his approval.
This same kind of legal action was seen recently in a challenge over an Orange County Board of Education seat. Member Tim Shaw was temporarily barred from serving on the board last month after a La Habra resident got approval from Bonta and filed a suit against him earlier this year.
Schlesinger, who is described by his attorneys as a retired veteran, contended in the application that public announcements and officials records indicate the candidates elected in 2018 would serve for a two-year term, and residents who turned up at polls to cast their vote that year were under the impression they were choosing a representative for a shortened period. When November 2020 came, the terms of Sachs, Bucknum and Raths should have expired, the filing states.
City Attorney Bill Curley has rebuffed the accusations that city leaders arbitrarily extended their seats, saying that the two-year terms were contingent on the city implementing cumulative voting, which would have required all five council seats to be up for election the same year. When city officials couldn’t make it work in 2020, then the terms reverted “to consistent with existing city and state law,” which stipulate council members be elected to four-year terms, he said previously.
Curley said in an interview Friday he wasn’t surprised by Bonta’s decision, because the circumstances of the dispute are unprecedented in the city and involve “very substantive legal issues at play,” which the attorney general believes a court should sort out. But Curley noted that he was “very comfortable and confident in our legal analysis,” adding that “we think we’re entirely valid and appropriate, and they see it otherwise.”
City officials tried for several years to get cumulative voting to work in Mission Viejo, after a lawsuit brought by a voting rights group in 2018 argued the existing at-large voting method was diluting the voice of its minority communities. After running into pushback from the state over the use of a cumulative voting system, the city in 2021 ditched the plan, opting instead to implement by-district voting this November. Several cities and other municipal agencies up and down the state have faced similar challenges to their at-large voting system and made changes.
In granting Schlesinger’s request to seek a court decision, Bonta wrote that his opinion doesn’t determine whether Schlesinger’s claims are correct, but that his ask met the three requirements for approval:
- That this type of lawsuit is a possible remedy for the issue at hand
- That the claims present “substantial issues” over whether the elected officials are rightfully holding office
- That authorizing the lawsuit would serve the public interest
Attorney Aaron Hand, who is representing Schlesinger, said the first step will be to ask in the next couple days for Sachs, Bucknum and Raths to resign on their own before filing the lawsuit.
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