Judge Moves up Hearing of Lawsuit Over Mission Viejo Councilors’ Terms

The new name for the Orange County Superior Court's West Justice Center is revealed in a livestreamed ceremony in Westminster, Calif., on Nov. 6, 2020. Screenshot via Superior Court of California County of Orange

MISSION VIEJO, Calif.—All five Mission Viejo city councilors may appear on the election ballot this November, after a judge recently decided to hear a lawsuit challenging their terms next week instead of in August.

While three councilors—Ed Sachs, Greg Raths, and Mayor Wendy Bucknam—were already up for re-election in November, a Mission Viejo resident Michael Schlesinger sued the city, arguing that councilors Trish Kelley and Brian Goodell should also appear on the ballot.

Last week, Orange County Superior Court Judge Walter Schwarm granted Schlesinger’s request to move the court hearing date from August 2 to June 28.

Shlesinger’s attorney Lee Fink told the Epoch Times this was done because the original date would be too late for the court to judge the case ahead of the election.

“The court agreed, and even the city conceded, that it was critical to advance the hearing so that the court could consider the matter before the city council formally calls the election and takes the necessary steps to administer the elections,” Fink said. “This is necessary to ensure that, when the elections process begins, all five City Council seats are placed before the voters.”

Schlesinger’s lawsuit, filed back in April, claimed all five seats should be up for election in 2022 due to a 2018 lawsuit settlement in which the city agreed to change its voting model to cumulative voting, which allows each voter to cast up to five ballots for any of the city’s five council seats.

The cumulative model was supposed to begin at the November 2020 elections, which elected councilors to two-year terms instead of the city’s regular four-year terms in order to settle the 2018 lawsuit filed against the city.

However, the council announced in July 2021 that it will instead move to a district-based election system in November 2022 after several setbacks in getting state approval. The district-based system divides a city into several districts, each represented by one councilor to be elected only by voters within the district.

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

Seeking to remove the first three councilors, Schlesinger also 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 last month and was approved by the California Attorney General Rob Bonta even though their seats already will be up for grabs in November.

City Attorney William Curley said in a statement last month that Schlesinger’s quo warranto is “without merit.”

“This lawsuit by Mr. Schlesinger is completely without merit, and the city looks forward to vigorously defending it and prevailing in court,” Curley stated.

He said the city “has diligently worked in good faith to lawfully comply” with the 2018 lawsuit’s stipulations to adopt the cumulative voting method but was blocked by the state, which does not allow cumulative voting in any city without a law passed by the state.

In 2018, the Southwest Voter Registration and Education Project sued Mission Viejo, saying the city’s at-large voting system—in which all voters could vote for all seats in an election—disenfranchised Latino voters, which violated the California Voting Rights Act.

According to the statement, Mission Viejo will continue to move forward with implementing district-based voting, saying it will “create more appropriate representation for Mission Viejo residents, especially the Latino community.”

On June 28, Schwarm will also be hearing a request from the city to dismiss Schlesinger’s case as meritless.