California Court Delays Removal of 3 Mission Viejo City Councilors

The Civic Center in Mission Viejo on June 30, 2022. John Fredricks/The Epoch Times

A California appellate court issued an order last week delaying the removal of three Mission Viejo City Councilors from their seats just one day before an order by an Orange County Superior Court judge would have forced them to resign.

The court granted the city’s petition to delay the order on Sep. 29, giving both the city and plaintiff an opportunity to provide more evidence by Oct. 18 and allowing the councilors to remain in office until a final decision has been made.

“The complicated legal issues presented in this matter have resulted in the court asking for additional briefing on these first instance issues that have significant consequence statewide,” Mission Viejo City Attorney William Curley said in a statement.

Aaron Hand, an attorney for Mission Viejo resident Michael Schlesinger—who challenged the councilors’ legitimacy to hold office in May—pointed out that the council “request[ed] for delay only, without any request for reversal on the merits.”

“The Court of Appeal’s grant of a stay—while maintaining Judge Schwarm’s finding that the defendants are guilty of remaining in office after their terms expired in 2020—likely reflects the Court’s shock that a majority of a city council could so deceive the public and run roughshod over voters’ rights,” Hand told The Epoch Times in an email. “We are confident that the appellate court will ultimately agree with Judge Schwarm that a City Council cannot simply decide not to call an election in order to remain in power.”

The latest ruling comes after Superior Court Judge Walter Schwarm in August ordered Mayor Wendy Bucknum, Mayor Pro Tem Ed Sachs, and Councilman Greg Raths to vacate their seats by the end of September—leaving only two councilors on the dais.

During an August hearing, Schwarm said he would leave it up to the city manager and staff to decide how the council would function without a quorum.

In anticipation of this, the council unanimously voted to increase City Manager Dennis Wilberg’s power during a Sep. 27 meeting.

According to a city staff report, Wilberg now holds “all non-legislative powers necessary to maintain, advance and satisfy the obligations, duties, promises, contracts, laws, propositions or similar governmental actions deemed necessary or desirable by the City Manager.”

This means Wilberg can now write and approve contracts, amend the city’s budget and put contracts out to bid; the staff report did not provide spending limits for Wilberg.

Back in May, Schlesinger filed a quo warranto—a special form of legal request to test whether a person has the legitimacy to hold his or her current public office—with the state to remove councilors Sachs, Raths, and Bucknum from office on the grounds the elected officials’ terms expired; the quo warranto was approved by state Attorney General Rob Bonta the same month.

The issue stems from a legal settlement that forced the city to switch from five at-large seats, in which candidates run citywide, to a system made up of five separate districts.

A 2018 lawsuit by the Southwest Voter Registration and Education Project contended the at-large system disenfranchised minority voters and violated the California Voting Rights Act.

In switching to district elections, the council extended all councilors’ terms from two to four years. Councilors Sachs, Raths, and Bucknam—elected in 2018—would appear on the ballot in 2022 instead of 2020, and councilors Kelley and Goodell—elected in 2020—won’t be up for reelection until 2024.

In April, Schwarm filed a separate lawsuit arguing that councilors Kelley and Goodell should also appear on the 2022 ballot. In July, Schwarm ruled in favor of Schlesinger, forcing all five city councilors to appear on the ballot in November.