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20130314_Public_Comment (4)
BELINDA ESCOBOSA HELIIR, CA Bar No. 214178 1 bescobosalietzer @aclu- sc.org BAR.DIS VAKILI, CA Bar No. 24778' bvakill@aclu-sc.org aclu- sc.org ACLU Foundation of Southern California 3 2100 N Broadway, Suite 209 Santa Ana, CA 92706 4 (714) 450 -3962; (714) 450 -3969 (Fax) 5 MORRIS .l_ BAILER, CA Bar No. 048928 mballer ,gdblegal.com 6 LAURA L. HO, CA Bar No. 173 179 tho @gdblegal.com 7 GOLDSTEIN, DEMCHAK, BAILER, BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000 8 Oakland, CA 94612 9 (510) 763- 9800; (510) 835 -1417 (Fax) 10 Attorneys for Plaintiffs .J OSE MORENO, AMIN DAVID, and CONSUELO GARCIA I 1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF ORANGE, CIVIL COMPLEX CENTER SANTA ANA I3 14 .JOSE MORE-NO, AMIN DAVID, and Case No.: CONSUELO GARCIA, 15 16 Plaintiffs, COMPLAINT FOR VIOLATION OF 17 vs. CALIFORNIA, VOTING RIGHTS ACT 18 CITY OF ANAHEIM, 19 Defendant. 20 21 22 23 24 25 26 27 �R COMPLAINT FOR VIOLATION OF CALIFORNIA VOTING RIGHTS ACr - CASE NO.: S�I�cZ:Y�E I INTRODUCTION 2 1. This action is brought by Plaintiffs for declaratory and injunctive relief against the City 3 of Anaheim ( "Anaheim" or "City ") for its violation of the California Voting Rights Act of 2001 4 ( "CVRA "), Cal. Elec. Code §§ 14025 - 14032. Because of the prevalence of racially polarized voting in 5 City elections, Anaheim's at -large method of electing its City Council has resulted in vote dilution for 6 Latino residents, impairing their ability to elect candidates of their choice or to influence the outcome 7 of City elections, and has long denied Anaheim's Latino residents effective political participation in the 8 City's electoral process. The CVRA was enacted to remedy precisely this kind of vote dilution. 9 2. Although Latinos make up 53% of the population in Anaheim, there are currently no 10 Latino members of Anaheim's City Council. (The terms "Latino" or "Latinos," as Plaintiffs will use I 1 them throughout this case, are intended to include both male "Latinos" and female "Latinas ".) In fact, 12 in the City's history, only three Latino individuals have ever served on the City Council. The City's 13 use of an at -large system to elect its City Council and the prevalence of racially polarized voting is 14 responsible for the absence of any Latinos on the City Council. This, combined with a history of 15 discrimination in the City that still impacts the Latino community, reveals a lack of meaningful access 16 for Latinos to the political process in Anaheim. 17 3. Plaintiffs bring this action to enjoin Anaheim's continued abridgement of Latino voting 18 rights. Anaheim's at -large method of election violates the CVRA. Plaintiffs seek a declaration from 19 this Court that Anaheim's current at -large method of elections violates the CVRA, and an injunction to 20 prevent Anaheim from continuing to impose or apply its current at -large method of election and to 21 require Anaheim to implement district -based elections or other alternative relief tailored to remedy the 22 City's violation of the CVRA, 23 JURISDICTION AND VENUE 24 4. This Court has jurisdiction over Plaintiffs' claims for declaratory and injunctive relief 2S under the CVRA, Cal, Elec. Code § 14032. 26 27 7.R 1 394360 -6 COWLAINT I oft VIOLATION OF CALIFORNIA VOTING RIGHTS ACT - CASE NO.: 1 5. Venue is }groper in this Court because Defendant is located in the County of Orange, 2 where violations of the CVRA have occurred and, unless enjoined, will continue to occur. CAC.. CODE 3 Crv- P. § 395 (a). 4 F 5 6. Plaintiff Jose Moreno is a registered voter residing in the City of Anaheim. He is Latino 6 and as such a member of a protected class under the CVRA- Plaintiff Moreno is an Associate 7 Professor in the Department of Chicano & Latino Studies at California State University, Long Beach. 8 Plaintiff Moreno is a member of the Board of Education foi the Anaheim City School District, and he 9 is the current president of Los Amigos of Orange County, a community group established in 1978 to 10 discuss and address issues and concerns in Orange County affecting the Latino community. 11 7. Plaintiff Amin David is a registered voter residing in the City of Anaheim. He is Latino 12 and as such a member of a protected class under the CVRA. Plaintiff David is the founder and former 13 president of Los Amigos of Orange County. 14 8. Plaintiff Consuelo Garcia is a registered voter residing in the City of Anaheim. She is 15 Latina and as such a member of a protected class under the CVRA. Plaintiff Garcia is a public 16 elementary school teacher in the Anaheim City School District, a position she has held for 17 years. 17 9. Defendant Anaheim is an incorporated municipality situated within the County of 18 Orange, Anaheim is governed by a City Council, which consists of a Mayor and four council members 19 who are elected at -large and serve four year terms. As a political subdivision organized and operating 20 under the laws of the State of California and created for the provision of government services, 21 Anaheim is subject to the CVRA. Cal. Elec. Cade § 14026 (c). 22 FACTS 23 Anah C ea Po oration and Denta ra hics 24 10. The 2010 Census reported that the City of Anaheim has a population of 336,265, 25 making it the 10th largest city in California and the largest city in the state which still elects its City 26 Council through at -large elections. The City has a total area of 50.8 square miles, spread more widely 27 from east -to -west than from north -to- south. 7R 2 COMPLAINT FOR VIOLATION OF CALIFORNIA VOTING RIGHTS ACT - CASE NO -: -� 394360 -6 1 11. According; to the 20101 Census, Anaheim has 177,467 Latina inhabitants, making up 2 52.8% of the City's population, while the non- Latino white population, with 92,362 inhabitants, makes 3 up only 27.5% of the City's population. There are 49,857 Asian Americans in Anaheim, making up 4 roughly 15% of the population. No other racial or ethnic group makes up more than 3% of the 5 population. 6 12. The American Community Survey ("ACS") 5-year-Estimate, which provides an official 7 estimate based on a survey of a random sample of the population, estimates that in 2010, Anaheim had S a total Citizen Voting; -Age Population ("CVAP ") of 168,775. ACS estimates that Latinos make up 9 32% of the total CVAP, while the non - Latino white population makes up about 46% of the total. 10 Asian Americans make up roughly 17% of the CVAP of Anaheim. 11 13. None of the current members of Anaheim's City Council is Latino. From 1870 to the 12 present, despite the fact that many Latino candidates have run for Council seats, only three different 13 Latino individuals have won election to the City Council. No Latino has ever been elected Mayor. 14 14. Approximately one -sixth of Anaheim's population — about 55,000 people --- resides in 15 Anaheim 1- fills, an affluent area on the .far east of the City which stands geographically somewhat 16 detached from the remainder of the City. Per capita, Anaheim Hills has more libraries, parks, 17 community centers and fire stations than any other part of the City. The racial/ethnic makeup of 18 Anaheim Hills is very different from that of the remainder of Anaheim as well. On information and 19 belief, of the roughly 55,000 residents of Anaheim Hills, about 40,000 — or 72% — are non - Latino 20 white, about 9,400 -- or 17% -- are Asian American, and only about 6,000 — or 12% — are Latino. In 21 addition to its distinctive ethnic and geographic characteristics, Anaheim Hills is also politically 22 distinct from the rest of the City, as nearly every political entity with boundaries in Anaheim — 23 including the state Assembly and Senate, the County Board of Supervisors, and the United States 24 House of Representatives --- has a district boundary line separating Anaheim Hills from the rest of the 25 City. 26 27 �R 3 mm COMPLAINT FOR V[oLAIJON OF CALIFORNIA VOTING RIGHTS ACT -CASE NO.: 39436 © -6 1 15. In the rest of the City outside of Anaheim Hills, Latinos make up a majority of the 2 residents, with the highest geographic concentration of Latinos located in a geographically compact 3 area in the central part of the City, where Latinos constitute a majority of the CVAP. 4 Anaheim's Election System and Its E on Latinos 5 1.6. Anaheim conducts an at -large election system for its City Council, which is composed 6 of the Mayor and four Council members. This election system allows all of the eligible voters in the 7 1 entire City to vote for all of the candidates running for Council seats and for Mayor. Candidates are 8 not required to reside in any particular portion or zone of the City, meaning any eligible voter may vote 9 for any candidate, regardless of where the voter or candidate resides. 10 17. General municipal elections are held every even - numbered year in the City. Elections 11 are staggered: the Mayor and two Council members were elected at the general municipal election held 12 in November 1994 and have been elected each fourth year thereafter, and two Council members were 13 elected at the general municipal election held in November 1996 and have been elected each fourth 14 year thereafter. The single leading vote- getter for Mayor and/or the two leading vote - getters for 15 Council member are elected. The next scheduled election is November 6, 2012, at which time two 16 Council members will be elected. 17 18. Latino advocates and groups have long claimed that the City's at -large elections deny 18 them access to the local political system and supported plans to establish single- member districts. In 19 late 1991, a group called on the City to abandon at -large elections, claiming that the all - white City 20 Council was not representative of the City's diversity. In 1992, City Council member William Ehrle 21 proposed a ballot measure to eliminate at -large elections and to replace them with district elections, 22 arguing that it would allow Latinos and other racial and ethnic minorities greater political access. In 23 May 1992, the City Council voted 3 -2 to prevent the proposed measure from being placed on the 24 November 1992 ballot. 2511 19. The at -large election system in Anaheim impairs the ability of Latino voters to elect 2111 candidates of their choice or to influence the outcome of elections for City Council. 27 7.R 394360 -6 4 COMPLAINT FOR VIOLATION OF CALIFORNIA VOTING RIGHTS ACT - CASE NO.: 1 Racially Polarized V its Consequences in Anahei 2 20. Elections in Anaheim., and in particular those for Mayor and City Council, are 3 characterized by a pattern of racially polarized voting. Racially polarized voting Occurs when there is a 4 difference in the choice of candidates or other electoral choices that are preferred by voters in a S protected class, as compared to the choice of candidates and electoral choices that are preferred by 6 other voters in the electorate. Cal. Elec. Code § 14028(b). Racially polarized voting exists in Anaheim. 7 because there is a difference between the choices of candidates or other electoral choices preferred by 8 Latino voters and the choices of candidates and electoral choices that are preferred by voters in the rest 9 of the electorate. Often this difference is manifested by large differences in the rates at which Latino 10 voters express their preference and vote for Latino candidates, which are significantly higher than the 11 rates at which other voters express preference and vote for such candidates. Furthermore, the adverse 12 consequences of racially polarized voting for Latino voters' ability to elect candidates preferred by 13 there are exacerbated by the existence of racial bloc voting among non - Latino voters who do not 14 support, and vote against, candidates preferred by Latino voters. 15 21- Such polarized voting dilutes the vote of the Latino community in Anaheim and impairs 16 their ability to elect candidates of their choice or to influence the outcome of City elections. 17 22. Because Latinos and the rest of the electorate express different preferences on 18 candidates and other electoral choices and the Latino. electorate is a minority of the total electorate 19 (albeit a very substantial minority), the non - Latino voting majority dominates Anaheim City Council 20 elections and can, and usually does, defeat the preferences of Latino voters. As a result, non - Latino 21 voters have dictated the outcome every City Council election in Anaheim, with Latino voters having 22 greatly reduced influence, far less than proportionate to their numbers in the population or the 23 electorate, on election outcomes. 24 23. There were two successful Latino candidates in 2002, Bob Hernandez and Richard 25 Chavez. Those candidates were elected in circumstances unique to that time: specifically, both were 26 decorated ex- firemen elected in the first City elections after the September 11 terrorist attacks, which 27 generated a national wave of gratitude and admiration for firefighters and other first responders. Those ?R 5 COMPLAINT FOR VIOLATION OF CALIFORNIA VOTING RIGHTS ACT - CASE NO.: 394360 -6 I circumstances allowed Hernandez and Chavez to win a significant, and in the history of Anaheim 2 elections unprecedented, "crossover" vote from non - Latino voters that was critical to their success in 3 the election. However, despite the advantages of incumbency, only Hernandez was successful in his 4 re- election campaign in 2006; Chavez, despite receiving a larger percentage of the Latino vote than 5 Hernandez did and emerging as the Latino preferred candidate, lost to a non - Latino candidate. 6 V ote Dilution and Additional Probative Eactors 7 24. The use of an at -large election system has had a particularly negative effect on Latino 8 voting strength in Anaheim because it is coupled with disparities in socio- economic advantages, the 9 City's history of racial and ethnic discrimination against Latinos, and expressions of hostility to Latino 10 interests on racially and ethnically divisive political and policy issues, providing further evidence of a 1 I violation of the CVRA. See Cal. Elec. Code §§ 14O28(e) 12 25. Latinos in Anaheim have suffered from, and continue to bear the effects of, past 13 discrimination in areas such as education and employment, which hinder their ability to participate 14 effectively in the political process. In Anaheim, there are significant disparities in the educational 15 levels of Latino and non - Latino white residents. According to the 2010 ACS estimates, only 53% of 16 Latinos 25 or older have graduated from high school, while 91 % of non - Latino whites have done so. 17 Likewise, only 9% of Latinos have a Bachelor's or a graduate degree; the corresponding figure for 18 non- Latino whites is 30 %. These educational disparities are reflected in significant economic 19 disparities. Per capita annual income was $14,315 for Latinos but $35,635 for non - Latino whites. The 20 percentage of Latinos living in poverty was 20.3% but only 6.1% for non - Latino whites. 21 26. Anaheim has a long history of discrimination against minorities, including Latinos, and 22 of racial tension. In 1924, at least three Ku Klux Klan members were elected to the City Council and 23 earned the City the nickname "Klanaheim." That year, Anaheim was the site of the largest white 24 supremacist rally in California history. In 1928, La Palma School was built as a segregated school for 25 Mexican children in Anaheim, and the City did not desegregate its Mexican schools until 1957, a 26 decade after that practice was declared unconstitutional by the federal courts in Westminster School 27 Dist. of Orange County v. Mendez. In the 1940s, `non. - whites' were only permitted to swim in the �.R 6 COMPLAINT FOR VIOLATION OF CALIFORNIA VOTING RIGHT'S ACT - CASE NO.: 394360 - I City's public pool on Mondays, the day before it was cleaned, and Mexican- Americans were not 2 permitted to use the City's public tennis courts. During the 1950s, Anaheim officials bulldozed a 3 Latino neighborhood to clear space for parking lots near the baseball stadium where the Philadelphia 4 Athletics held their spring training. In 1978, allegations of ethnically motivated police brutality created 5 a rift between the Latino community and police, erupting in a riot at Little People's Park. 6 27. Anaheim's history of discrimination extends to recent years. 1rt the rnid- 1990's, 7 Anaheim became the first city in California to have federal immigration officers stationed permanently 8 at their city jail and the police force advocated for the authority to enforce federal immigration laws, 9 raising fears of racial profiling. In 2001, in response to complaints made to the police about racial 10 profiling, Anaheim police secretly investigated the backgrounds of prominent members of the Latino 11 community, including Plaintiff David, and presented the corresponding dossiers to the City Council in 12 closed session. Inn. 2002, the Anaheim planning Commission, referring to prominent Mexican 1.3 supermarket chain Gigante as "too Hispanic" and objecting to its Spanish language signage, opposed 14 the store's attempts to do business in Anaheim. In 2005, residents of La Colonia, a generations -old 15 Latino neighborhood located in an unincorporated area virtually surrounded by Anaheim, voted to 16 defeat annexation attempts by the City, out of fear that it would result in their being driven out of their 17 homes, as the City had done with other Latino neighborhoods. This often tense and discriminatory 18 history has entrenched the ethnic and racial divide in the City, exacerbating the already polarized 19 voting patterns and magnifying its dilutive effects. 20 28. Subtle or overt racial appeals have been made during campaigns and elections in 21 Anaheim which have likely further polarized the electorate. In 1988, the campaign. for Republican 22 state assembly candidate Curt Pringle hired uniformed security guards to stand outside polling stations 23 in heavily Latino neighborhoods, holding placards reading `Non - Citizens Can't Vote" and demanding 24 identification from voters. The same candidate was later elected mayor of Anaheim and served 2 terms 25 from 2002 to 2010. In 1999, the school board for Anaheim. Union High School District voted to bill 26 Mexico and the federal government for the cost of educating unlawful immigrants, and a candidate for 27 a school board position suggested the schools should turn new students over to federal authorities if W 7 CONTL.AINT FOR VIOLATION OF CALIFORMA VOTING RIGHTS ACT - CASE NO.: I I I they could not prove they were in the country lawfully, a practice the federal courts had previously 2 11 ruled is unconstitutional. 3 29. further evidence of the lack of meaningful access for Anaheim Latinos to the political 4 1 process is found in the City Council's appointments to the City's boards and commissions, which snake 5 decisions that significantly affect the everyday lives of the community and its residents in a wide variety of areas such as land use planning, development, parks and recreation, and other aspects of 7 civic affairs. On information and belief, Latinos are drastically underrepresented on Anaheim's boards 8 and commissions in relation to the percentage of Latinos in the population. 9 30. 'rhe existence of these additional probative factors as alleged in paragraphs 23 -29 both 10 exacerbates and underscores the dilutive effects of Anaheim's at -large election system. Cal. Elec. 11 Code § 14028(e) 12 Remedies and Alternatives to At -1 arge Election Syrstems 13 31. An alternative method of election, specifically, district -based elections, with district area 14 11 lines drawn in a fair and non - discriminatory manner, would provide an opportunity for Anaheim's 15 Latino community and voters to elect candidates of their choice and/or influence the outcome of 16 11 elections in the City and would counteract the dilutive and discriminatory effects of Anaheim's at -large 1711 elections. 18 32. Unlike the designation of the entire City as an at -large entity for election of its 19 governing body, Anaheim currently divides itself into four districts — East, Central, South, and West — 20 for the purposes of facilitating policing by district and administering Neighborhood District Councils, 21 which seep to improve neighborhoods but have no official legislative authority. On information and 22 belief, the East District encompasses Anaheim /-fills, while the Central District encompasses an area 23 where Latinos are the most numerous and geographically compact. The West and South districts are 24 ethnically more diverse. Such a geographical definition of districts for use in a district election system 25 for City Council, or some other division of the City into geographically defined district election areas, 26 would provide an appropriate remedy for Anaheim's violation of the CVRA and would enhance the 27 7R 8 COMPLAINT FOR VIOLATION OF CALIFORNIA voTiNG RIGHTS ACT - CASE No.: 394360 -6 ability of Latino voters to elect candidates of their choice and /or to influence the outcome of City Council elections. Wei 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 79 33. Unless enjoined from applying or imposing at -large elections for City Council in Anaheim, Defendant will continue to conduct elections under the unlawful at -large election system and Latino voters will continue to suffer from discrimination and dilution in their exercise of their voting rights. The injury caused by such discrimination and dilution is, and will. be, irreparable. FIRST CAUSE OF ACTION (Violation of California Voting Rights Act, Cal, Elec. Code §§ 14025- 14032) 34. Plaintiffs incorporate paragraphs 1 through 33 as though fully set forth here. 35. Defendant's imposition or application of an at -large method of election, as that term is defined. in California Elections Code section 14026(a)(1), for elections to City Council impairs the ability of Latinos to elect candidates of their choice and their ability to influence the outcome of elections, in violation of the CVRA. Cal. Elec. Code §§ 14027 -28. 36, The Court is authorized to provide appropriate remedies, including the imposition of district -based elections that will permit Latinos a fair opportunity to elect candidates of their choice and/or to influence elections, tailored to remedy the violation of the CVRA, by the City of Anaheim. 37. An actual controversy has now arisen and exists between the parties relating to their legal rights and duties, as to which Plaintiffs desire and are entitled to a declaration of their rights. 38. Anaheim has failed and refused to take the steps necessary to ensure that its elections conform with the CVRA. Anaheim's wrongful and unlawful conduct has caused, and unless enjoined by this Court, will continue to cause, immediate and irreparable injury to Plaintiffs. Plaintiffs have no adequate remedy at law for the injuries they currently suffer and will continue to suffer unless this Court enjoins Defendant. 111 111 111 0 COMPLAINT FOR VIOLAMN OF CALIFORNIA vOTING RIGHTS ACT - CASF NO.: 394360 -6 1 PRAYER FOR RE LIEI!a 2 Accordingly, Plaintiffs request that this Court: 3 A. rind and declare that Defendant's imposition or application of an at -large method of 4 election to elect its City Council violates the CVRA and that the adoption of an election system using 5 single - member districts is required to remedy the violation; 6 B. Grant permanent injunctive relief prohibiting Defendant from imposing or applying its 7 current at -Large method of election to elect the City Council; 8 C. Grant injunctive relief mandating that Defendant impose and/or apply district -based 9 elections, as that term is defined by California Elections Code § 14026(b), including the adoption of 10 fairly constituted districts that do not dilute Latino voting strength or otherwise discriminate against 11 Latinos, or other alternative relief tailored to remedy Defendant's violation of the CVRA; 12 D. Grant Plaintiffs' attorneys' fees and costs of litigation under California Elections Code 13 § 14030, Cal. Code of Civil Procedure § 1021.5, and/or other applicable law; and 14 F. Grant Plaintiffs such further relief as the Court may deem just and proper. 15 Dated: June_, 2012 Respectfully submitted, 16 BELINDA ESCOBOSA HELZER, CA Bar No. 214178 17 bescobosahelzer @clu- sc.org BARDIS VAKILI, CA Bar No. 247783 18 bvakili @aclu- sc -org ACLU Foundation of Southern California 19 2100 N Broadway, Suite 209 Santa Ana, CA 92706 20 (714) 450 -3962; (714) 450 -3969 (Fax) 21._ MORRIS I_ BALLER, CA Bar No. 048928 22 mballer @gdblegal.com LAURA L. HO, CA Bar No. 173179 23 lho @gdblegal.com GOLDSTEIN, DEMCHAK, BALLER, BORDEN & 24 DARDARIAN 300 Lakeside Drive, Suite 1000 25 Oakland, CA 94612 (510) 763 - 9800; (510) 835 -1417 (Fax) 26 Attorneys for Plaintiffs JOSE MORENO, AMIN DAVID, 27 and CONSUELO GARCIA ?.R 10 COWL.AINT FOR VIOLATION OF CALIFORNIA VOTING RIGHTS ACT - CASE NO.: 394360 -6 1 2 3 4 5 6 7 8 9 13 14 15 16 17 18 19 20 21 22 23 24 2 5 26 2 7 28 CRISTINA L. TALLEY, ESQ. (SBN 10 7 2 9 8 ) CITYATTORNEY KRISTIN PELLETIEl ESQ, (SBN 15537 SENIOR ASSISTANT CITY ATTORNEY City of Anaheim 200 South Anaheim Boulevard, Suite 35 Anaheim, CA 928o5 Telephone (7 765 Facsimile: (7 765 Email- CTallgy(&anaheim.net Email: KPelletier@anaheim.net NIELSEN MERKSAMER PARRINELLO GROSS & LEONI LLP MARGUERITE MARY LEONI, ESQ. (SBN 1o1696) CHRISTOPHER E. SKINNELL ESQ. (SBN 227093) 2350 Kerner Boulevard, Suite 25o San Rafael, California 94941 Telephone: (415) 389-6800 Facsimile: (415) 388-6874 Email: mleoniOnmgovlaw.com Email: eskinnellonmgovlaw,com 11 1 111111111111 Jill, 1 11111111 111111111111 Attorneys for Defendant CITY OF ANAHEIM Plaintiffs, VS. CITY OF ANAHEIM, Defendant. ELECTROMICALLY FILED Superior Court of California, County of Orange 08/2912012 at 10:55:00 Alvil Clerk of the Superior Court By Sonya Wison.Deputy Clerk JUDGE: Hon. Gail A. Andler DEPARTMENT: Moi ACTION FILED: June 28, 2012 TRIAL DATE: None Set DEFENDANT CITY OF ANAHEIM'S ANSWER TO UNVERIFIED COMPLAINT CASE NO. 30-2o12-oo57qqq8-CU-CR-CXC I I M 3 4 5 6 7 8 9 10 11 12 1 3 14 15 16 1-7 18 19 20 21 22 2 3 24 25 26 2 7 28 ATKINSON, ANDELSON, LOYA, RUUD & ROMO IRMA RODRIGUEZ MOISA, ESQ. (SBN 162272) WARRENS. KINSLER, ESQ. (SBN 1 03 2 65) DAVID A. SOLDANI ESQ. (SBN 210 1280o Center Court Drive, Suite 3 00 Cerritos, California 9 Telephone (562) 6 Facsimile: (562) 653 Email: iLmoisa-@aalrr.com Email: wkinslergaalrr.com Email: dsoldaniftalrrxom Attorneys for° Defendant CITY OF ANAHEIM DEFENDANT CnY OF ANAHEIM'S ANSWER TO UNVERIFIED COMPLAINT CASE NO. 30-2012-00579998-CU-CR-CXC 1 2 3 4 5 6 7 s 9 to 11 1 2 1 3 1 4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant CITY OF ANAHEIM (hereinafter "Defendant ") answers the unverified complaint of plaintiffs JOSE MORENO, AMIN DAVID, and CONSLTELO GAR.CIA (collectively the "Plaintiffs ") as hereinafter set forth. 1. GENERAL DEN 1. Pursuant to Section 431. of the California Code of Civil Procedure, Defendant generally and specifically denies each and every allegation, statement, natter, and thing set forth in and alleged in the unverified complaint, and specifically denies that Defendant has violated the California Voting Rights Act of 2001 (California Elections Code § 14025 o seq., hereinafter the "Act ") and denies that Plaintiffs are entitled to the relief i prayed for or any relief whats against Defend 11 DEFENSES 2. For Defendant's separate affirmative defenses to the cause of action alleged in the unverified complaint, and without admitting that Defendant has the burden of proof on any of these defenses, Defendant alleges on information and belief as follows: FIRST AFFI RMATIVE DEFENSE (Dome Rule Powers of a Charter City) 3. The application of the Act to the City of Anaheim would violate Article XI, § 5(a) & (b) of the California Constitution, and section 5 00 of the Charter of the City of Anaheim, SECOND AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) 4. Each and every purported cause contained in the Complaint fails to allege facts sufficient to state a cause of action against Defendant. THIRD AFFIRMATIVE DEFENSE (Good Faith) S. Defendant has acted at all times in good faith and in accordance with the laws of the State of California and without intent to deprive Plaintiffs of their rights or to cause other injury. DEFENDANT CITY OF ANAHEIM'S ANSWER TO UNVERIFIED COMPLAINT CASE NO.3o- 2012- 0o579998- CU- CR -CXC Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 7 FouRTH AFFIRMATIVE DEFENSE Good Faith) 6. Defendant has acted at all tinges in good faith and with the reasonable belief that its actions were valid. FIFTH AFFIRMATIVE DFFFNSE (loo night To Injunctive Or Declaratory Relief) 7. The Complaint and each purported cause of action therein fail to state a basis upon which declaratory or injunctive relief can be granted because Defendant has no present duty to perform the acts sought to be compelled and there is no corresponding right in Plaintiffs thereto. SIXTH AFFIRMATIVE DEFENSE (Prior Election of Minority - Preferred Candidates) 8. The Act authorizes consideration of the election of minority candidates who are the chosen candidates of the plaintiff minority group in determining a violation of the Act. Over the past io years numerous candidates for the Anaheim City Council, who were preferred by Latino voters in the City, were elected to the Council. SEVENTH AFFIRMATIVE DEFENSE (Violation of the Fourteenth Amendment to the United States Constitution and Article I, § 7 of the California Constitution) 9. The Act is unconstitutional, on its face and as Plaintiffs seek to have it applied in this action, pursuant to the provisions of Section 1 of the Fourteenth Amendment to the United States Constitution, and to the provisions of Section 7 of Article I of the California Constitution. EIGHT AFFIRMATIVE DEFENSE (Violation of Federal doting Rights Act) lo. The Act and its application in this case violate section 2 of the federal Voting Rights Act., 42 U.S.C. § 1 973• DEFENDANT CITY OF ANAHEIM'S ANSWER TO UNVERIFIED COMPLAINT CASE NO.30- 2012 - 00579998- CU- CR -CXC Page 2 1 2 !, 3 4 s 6 7 8 9 1n 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NINTH AFFIRMATIVE D EFENSE (Violation of Section 31 of Article 1 of the California Constitution) 11. The Act violates Section 31 of Article 1 of the California Constitution. TENTH AFFIRMATIVE DEFENSE (Nei Vote Dilution) 12. Plaintiffs' claims are barred in whole or in part because they cannot demonstrate vote dilution. ELEVENTH AFFIRMATIVE DEFENSE (Lack of Causation) 13. Plaintiffs' claims are barred in whole or in part because there is no causal relationship between the at -large elections authorized by the California Constitution and the Charter of the City of Anaheim and any alleged failure of plaintiffs to elect their chosen candidates. TWELFTH AFFIRMATIVE DEFENSE Failure To Comply With Gov't Code 810 et. se . 14. Plaintiffs are barred for a portion or all of the relief sought in the complaint because Plaintiffs failed to comply with the provisions of the Government Claims Act, Government Code § 81o, et. seq. THIRTEENTH AFFIRMATIVE DEFENSE LacheS 15. Plaintiffs are barred from a portion or all of the relief sought in the complaint by the doctrine of laches. FOURTEENTH AFFIRMATIVE DEFENSE Waiver 16. Plaintiffs, by their actions, omissions and /or conduct have waived any potential entitlement to all of the relief sought in the complaint. DEFENDANT CITY OF ANAHEIM'S ANSWER TO UNVERIFIED COMPLAINT CASE NO.3a- 2o12- oo679998- CU- CR -CXC Page 3 I RAI s 10 11 . 12 13 14 is 16. 17 1$ 19 . 20 21 22 23 :24 .25 2.6 27 28 o f UMA&UN11 17. Plaintiffs are barred from a port on or all of the relief sought in.the complaint by operation of the applicable statues of limitations. WHEREFORE, Defendant prays: 1. That Plaintiffs tale: nothing by their :Complaint; 2. For entry of Judgment against Plaintiffs and in favor of Defendant; and 3. That Defendant be awarded its costs of.suit and attorneys' fees; and 4. That the Court order ,rather and ff irther relief to Defendant as deemed just and proper. Dated: Al1gLD.St p 201 ATKI '� N. , ANDE ON, 1:.�OY.f'�,y�.£RV "VL & SEOIVHV By. David A. 6 dani Dated. August 29 ; 2012 NIELSEN MERKSAMER P ARRIN ELLO CR & LEONI LLP BY liar ite Mary Leoni &---- tors or Iaeferadat CITY OF AN AHEIM ANSWER TOVNVE IFtEn Page 4 ,, 2 7 8 9 10 11 12 13 14 1 6 16 17 J 19 20 21 22 23 24 25 2 6 27 28 I, the undersigned, declare under penalty of perjury that: I am a citizen of the United States employed in the County of Darin. I am over the age of iS and not a party to the within cause of action. My business address is 235o Kerner Boulevard, Suite 250, San Rafael, California 94901. 1 am readily familiar with my employer's practices for collection and processing of correspondence for mailing with the United States Postal Service and for pickup by Federal Express. On August 29, 2012, I served a true copy of the foregoing ANSWER OF DEFENDANT CITY OF ANAHEIM TO UNVERIFIED COMPLAINT FOR VIOLATION OF THE CALIFORNIA VOTING RI GHTS .ACT OF 2001 on the parties in this action, at the addresses reflected below, as follows: Morris J. Baller, Esq. Laura L. Ho, Esq. Goldstein, Demchak, Baller, Borgen & Dardarian 3oo Lakeside Drive, Suite x000 Oakland, California 94612 -3536 E -mail: mballerPgdblegal.com E-mail: Iho@gdblegal.com Belinda Escobosa Helzer, Esq. Bardis Vakili, Esq. ACLU Foundation of Southern Calif. 2 oo N. Broadway, Suite 2o9 Santa Ana, California 927o6 E -mail: bescobosahelzter aclu -sc.or E -mail: bvakili aclu -sc.o Attorneys for Plaintiffs JOSE MORENO, AMIN DAVID and CONSUELO GARCIA BY ELECTRONIC SERVICE: By transmitting by email to the above party(ies) at the above email addresses. X BY U.S. L4- By following ordinary business practices and placing for collection and mailing at 2350 Kerner Blvd., Suite 260, San Rafael, California 949 on August 29, 2012, a true copy of the above - referenced document(s), enclosed in a sealed envelope; in the ordinary course of business, the above documents would have been deposited for first -class delivery with the United States Postal Service the same day they were placed for deposit, with postage thereon fully prepaid. Executed in San Rafael, California, on August 29, 2012. I declare under penalty of perjury, that the foregoing is true and correct. Keri L. Marmon -� DEFENDANT CITY OF ANAHEIM's ANSWER TO UNVERIFIED COMPLAINT CASE NO.30- 2012- 00579998-CU- CR -CXC Page 5 3 4 7 9 0 a 12 13 14 :15 16. '7 18 19 .20 21 .02 2 8 24 25 '.26 27 28 CRISTINA L. TALLEY, ESQ. (SBN 1 07298) CITY ATTORNEY KRISTIN PELLETIER, ESQ. (SBN 155378) SENIOR ASSISTANT CITY ATTORNEY City of Anaheim 200 South Anaheim Boulevard, Suite 356 Anaheim, CA 92805 Telephone: (714) 765-5169 F,ksimile: (714) 765-5123 Email: CTallgy@anaheim.net Email- KPelletieroanaheim.net NIELSE N MERKSAMER PARRINELLO GROSS & LEONI LLP MARGUERITE MARY LEONI, ESQ. (SBN ioi696) CHRISTOPHER E. SKINNELL, ESQ. (SB'NT 92 7093) 235o Kerner Boulevard,. $i4be 250 San Rafael, California 94941 Telephone.: (415) 389-6.800 Facsimile (415) 388-6874 Email: mleoniPnmgov1'qw.com. Email:. cski -qm (Counsel fbr Defendant Continued on next page) attorneys, or Defendant CITY OF ANAHEIM IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE JOSE MORENO, AMIN DAVID, and ) CONSUELO GARCIA, CaseNo. 30-2012-00579998- CU-CR-CXC Plaintiffs, I vs. I CITY OF ANAHEIM, Civil Unlimited Defendant. DATE, November 15, 2012 TIME: 2:6o p,m. DEPT: C13 JUDGE: Hon. Gregory Munoz ACTION FILED: June 28, 2012 TRIAL DATE: None Set DEFENDANT CITY OF ANAHEIM'S MEMORANI OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STAY LITIGATION 1 .ATKINSON, .ANDELSON, LOYA, RUUD & ROMO IRMA RODRIGUEZ MOISA, ESQ. (SBN 162272) 2 WARREN S. KINSLER, ESQ. (SBN 103265) DAVID A. SOLDANI, ESQ. (SBN 210302) 12800 Center Court Drive, Suite 300 4 Ce California 9 Telephone. (5 653 - Facsimile (562) 653 6 Email. imoisafo aalrr.Mm Email: wkinsler@aalrr.c_arn 7 Email: dsold ni a s Attorneys for Defendant CITY OF ANAHEIM Q az g 14 15 16 17 is 19 20 21 22 2 .3 2q. 2� 26 27 26 i DEFENDANT CITY OF ANAHEIM'S MEMORANDUM CASE NO. 30.2012 - 170579998 -CU-CR OF POINTS AND AUTHDRITIES IN SUP1'O T Car MOTION TO:STAY LITIGATION x 4 V t3 iz x� 14 A5, x6 17 i8 xg ao Z 22 2 3 2-4 25 z& , . z8 I . INTRODUCTION ..e., e ..............>.,, e.e, n,. ne.<...,...... a..oa,. nn......,,..e. ..,..,...... II. FACTUAL; BACKGROUND .. o,..n n ....... ...:..e...e.e.,en,e,...n.e.:,. — .........o...n,............... III ARGUMENT n,., .,, n ...:............n.. nnn...mnaean..aaa.oaaaab...aaa, nano ;..,a.n.er.e.v..,ae.,e;....... n.es..... A. This Court. Has Inherei t Power To Stay This Action ............. ................. B. The City Has Constitutionally Granted "Plenary Authority" Over The Manner And Method Of Election Of Its Council Members, A Temporary Stay Shoul Issue In Deference To. This Constitutional Grant Of Plenary Power To The City ........,.,. :.............n C. A. Temporary Stay Is Consistent With The Separation Of Powers- Doctrine Because Determining The Proper Electoral System.. For A City Is A Political Question Properly Consigned. To The Legislative Processes Of The City .......... n ................e..... I D. Issuing A Stay Will Promote Judicial Economy And Will NotPrejudice Plaintiffs ... ....:.............:... n............,,,....... ................,,............� IV. CONCLUSION-- ..ee..... e .................... n..... n, e. n,,,.,,.,..... ......,,....................,.� DEFENDANT CITY OF ANAHEIM'S MEMORANDUM OI' POINT'S AND Al3'I HORITIE8 IN SUPPORT" OF MOTION TO STAY LITIOATIONT NCO. Page i 'S. rg 10 11 12 1 1 15 ;6 1? 18 _9 20 21 22 ,23 4 2s 26 27 28 CASES Bailey v. Fosca Coil Co., 216 Cal. App. 2d 813 (1963) ...................... ............ ..................... ... ......... - ........ .. 9 Connecticut Indemnity Co., v. Superior Court of Sala Joaquin County, . 23 Cal. 4th 80.7 (2000) ..................................................... .q.. .............. ...,. x2. Freiberg v. City of Mission Viejo, 33 Cal. A.pp: 4th 1484 (1995) ... ......., e ... ...:..e... ....:.:::.:.......... . ............. 8 Graham a DairnlerChrysler, 34 Cal-4t 553 ( 2004). e,,..,. ...... . a.,,,,,. a......... ............... . ............ - .; ........ . 8 Griswold v. County ofSa'n Diego, 32 Cal. App. 3d 56 (1973) ...... ........................ .......................,....... ........10 Johnson v. Bradley, 4 Cal. 4th 389 (1992).: ... .................... ....... w ................ ........ Legislature of California v. Reinecke, 6 Cal- 3d 595 ( 197 .......... ................ ............... ....................... .............................10 :Nadler v. ,Schwarzenegger, 136 Cal. App. 4th 1827 (?-oo6) ........... ............................. ............ <.................. 11 Pacific Legal Foundation o. California Coastal Commission, 33 Cal. 3d 158 (1982:) ............................................................. .............................14 San Francisco F ire Fighters Local 798 v. City and County of Scary Francisco, 3 Cal. 4th 653 (2oo6) .......................................................... .............................12 .Silver v. Brown, ................... .................. 63 Cal. 2d 841 (1966) . ..................................... . 11 State Building & Construction Trades Council of California V o City of Vistas...... 54 Cal. 4th 547 (2012) 9 f Walker v. Superior Court, 53 Cal. 3d 2.57 ( 1 990 ... ........................................................ ..........:.............:...... g DEFENDANT CITY OF ANAHEIM'S MEMORA.N[ OF POINTS AND AUTHoRmEs 1N SUPPORT of MOHON TO STAY LITIGAMN CASE NO. 30-20 Page i i i 2 J 8: i o 12 1 3 xs 17 18 39 20 21 22 2S 24 �* 26 �1 28 S TATUTES California Cade of Civil Procedure § 187. ........ ............ ........ ........ ................... 9 ElectionsCode § 3-4027 ........................... .............................. ........... ...,... — ..........w..:.. 4 Elections Code:§ 14028— .... ............ e....,,..., ...,,,....w..........r......... Elections 14029 .... . ........... ...................................... ., 14 El ections Code § 14030 — .... . ....... ............ ..................... . .. 4, Evide C ade § 452(g ....... ..................... . ... ......................:a...... 4 Evidence Code § 453 ............................... ........... .,......... 4 CONSM CALIFORNIA CONST IL O California Constitution .... . • ....... .................. 9 Article § ......,... .................. a...,....... .....d....,:.,.........:.,..... ......,.......... 3) 9 :Article XI, § 3 ................ .......................... ..,...,...................................... ......,, ArticleX1, § 5( a)..,..-. ....... ,........ ......... ......:...... ..:...............I............ 1.— 9 Article XI, § 5 (b) ..,,.,, . ....,.,r .... ...................... .......a.or,..- «..,,.. ....... 2, 10, 12, x5 Anaheim. City Charter, § 5cs.o ......................,,.,.........,...,....... ....,.,...,r.........,......... 3,4 A naheim City Charter, § 504,.., ....... — 11 ........................ ,..,., .— .... ......._.................. 4 Orange County Registrar of Voters at www.oevote archive . . ......... ....... .................. ...................... - .... I ............. - ............. "t ..,. .4 OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STAY LITIGATION NO, 30 -20 Page iii 1 2 s . s xx xz 13 14 1.5 1s 17 is 19 20 21 22 23 24 a5 26 27 28 Defendant City of Anaheim, a charter city pursuant to Article XI, § 3 of the California Constitution, respectfully requests a temporary stay of this action to I permit the City's political processes, commenced before this action was filed, to address the voting rights issues presented in the complaint. This is an action under the California Voting Rights Act ( "CVRA ") challenging the City's use of an at -large electoral ;system as provided in its Charter. Under that electoral system, seven of the ten vacancies on the City Council since 2.02 have been filed by Persons who are members of a racial minority group, including five by persons2 of j Hispanic or %gin. Nevertheless, plaintiffs allege that "[bjecause of the prevalence of I racially polarized voting m i City elections, Anaheim's at -large method of electing its City Council has resulted in vote dilution for Latino residents, impairing their ability to elect candidates of their choice or to influence the outcome of City elections, .,." Complaint, Ti. Plaintiffs: pray that this Court mandate "that Defendant impose and /car apply district -based elections" for the election of its City Council members commencing with the November 20 14 elections. (Complaint, Prayer t C.) In April of this year, Plaintiffs' counsel sent a letter to the City advising of their view that the City's electoral system violated the CVRA and demanding that the City change to district -- based elections, In response, the City commenced a political process to educate its citizens about the issue and involve them in the discussion about changing the City's electoral system. Anaheim cannot chap e its electoral system b fiat, only a majority of the voters can do that by approving a ballot measure to amend the CityYs Charter. The City scheduled an initial public forum on the issue for July 11, 2012. On June 2o, the City informed Plaintiffs' attorneys about the need for a public process/ vote, and the scheduling of the July public forum. The City invited NO.3 Page I ft?4bAN CITY OF ANAHEIM'S MEMOPANI OF POINTS.AND AUTHORITIES IN ' SUPPORT OF MOTION TO STAY LITIGATION S A 5 6 7 . 9 13 14 15 16 1 7 is 19 20 21 2 4 25 26 27 as Plaintiffs' attorney to participate in the panel discussion. Rather than accepting the invitation, the Plaintiffs filed this lawsuit one week later. The City's public process has continued with the issue of the City's electoral system discussed at council meetings amidst a cacophony of opinion about how the council members should be elected. On August 8, 2012, the City Council appointed a Citizens' Advisory Committee on Elections and Community Involvement specifically charged with studying and providing advice to the City Council on numerous issues including "potential changes in the City's election systems, including election by-district —" Resolution No. 2o2 -o9o. The. Committee's first meeting is on October 18, 2o12, anal it is required to complete its work on or before May 31, 2Oi3:. The City requests a stay of this action to perrdit the political processes, set in motion by the: City before this action was filed, to be completed. A stay would: 1. Respect the mandate of California Constitutio'n Article XL A),, which grants charter cities "plenary authority" over "the manner in which, the method by which, the times at which, and the terms for which the several municipal officers ... shall be elected.' 2. Allow the legislative branch to resolve the quintessentially political question of the configuration of the City's electoral system, which is specifically consigned to it, and thus respect the proper role'of the legislative branch under the separation of powers doctrine. 3. Promote judicial economy and economy to the parties by deferring litigation over an election system that may be replaced before the next City Council elections. A stay until the early summer 2013 Will not harm Plaintiffs. The next City Council elections are in November 2014. A measure can be placed on the ballot in sufficient time to be implemented for the November 207.4 elections. If the Plaintiffs are not happy with the outcome of the political process, there is ample b i fffiENDANT CITY Or ANAHEIM'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STAY LITIGATION CASE NO. Page 2 a I time to complete this litigation before the November 2014 elections. In any case, whichever party prevails at finial, an appeal is likely, which would delay the implementation of a new court - ordered electoral system beyond 2014 elections. Thus, the political process. is the best chance for a change for 2014, and the City continues to urge the Plaintiffs to participate. 1 The City has met and conferred with Plaintiffs, sending a letter to their 7 attorney on August 23, 2012, proposing a stipulated stay until July 1, 2013. Plaintiffs refused, advising. the City that, in essence, the only resolution acceptable to there is either a negotiated judgment or judgment after litigation mandAting the City to change its electoral system. They will not accept a political process which involves a vote of the citizens of Anaheim.. Anaheim is a Charter City. Section 56o of its Charter provides: The elective officers of the City shall consist of a Mayor and four City Council members elected from the City at large and at the times and in the manner provided in this Charter who shall serve for a term of four years and until their respective successors qualify. Section. 500 of the Charter can be amended only by a majority vote of the citizens ig 20 21 22 23 . 24 2$ 25 27 28 of Anaheim. Cal. Const. art. XI, § 3(c). Data available through the Census Bureau reflect that persons of Hispanic origin constitute about 32 percent of Anaheim's eligible voters, i.e. citizens of voting age; citizens of Asian origin constitute approximately 1-7 percent of Anaheim's eligible voters. Compl. ¶ z 2, Since 2oo2, there have been ten seats up for election on the City Council two every two years. Persons who are members of a racial minority group have filled seven of those seats: 3 The CityCouncil consists of four City Council members and a separately elected Mayor. No persar. of Hispanic origin has run for election to the office of Mayor since at least 2002, and many years prior. City Charter § 500 & 504, The City's election records since 2002 are available in the archives portion of the website of the Orange County Registrar of Venters at Arw ote &orn / data /cleciot- IDI3ENDANT CITY Of ANAI EIM'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT QP MOTION TO STAY LITIGA'I']ON CASE NO. 30-20 Page 3 I 2 3 4 7 a 9 10 13 1.2 xr# x� 16 1 7 18. 19 20 ax. 22- 23 24 25. 26 27 28 r *0a f ! 0 Bob Hernandez Richard Chavez Lorri Galloway Marry S idhu Bob Hernandez Harry Sidhu Lorri Galloway Hispanic Hispanic Hispanic /Asian (Filipino.) Asian (Indian) Hispanic Asian (Indian) ispanzc/Asian (Filipino) Sections 1027 and 140 o the California 'Voting Rights Act provide, in relevant part, 1:4027: An at -large method of election may not be unposed or applied in. a manner that impairs the ability of a protected class to elect candidates of its choice or its ab ility to influence the outcome of an election, as a result of the dilution or the abridgment of the. rights of voters who are. members of a protected Glass, ,.. 14[028. (a) A violation of Section 14027 is established if it is shown that racially polarized voting occurs iii elections for members of the governing body of the political subdivision or in elections incorporating other electoral choices by the voters of the political subdivision.... . One circumstance that may be considered in determining a violation of Sectiion 14027 and this section is the extent to which candidates who are members of a protected class and who are preferred by voters of the protected class, as determined by an analysis of voting behavior, have been elected to the governing body of a political subdivision that is the subject of an action based on Section 14027 and this section. In a CVR.A action, prevailing plaintiffs are entitled to an award of reasonable attorneys' fees and coasts, including expert fees. Prevailing defendants can secure no such award, not even costs of suit. Elec. Code § 14030. On April 11, 2012, Plaintiffs' counsel sent a letter to the City stating that he had determined that racially polarized voting occurs in the City, which Plaintiffs claimed was sufficient to prove a violation of the CVFA. Plaintiffs' counsel demanded that the City Council change the City's method of election; "We demand resu ts- archive. The City requests,jodicial notice of the above election results. Ev. Code H 452(g) & 453• DEFENDANT CITY of ANAMUM'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT of MOTION TO STAY LInGATION 30 -201 Page 4 1 21 4 '6 .7 9 ;4 15 17 1.8 19 20 21 22 23 24 25 26 27 28 that the City change from at-large to district elections." A copy of this. letter is attached to the Declaration of David Soldani ("Soldani Dec.") as Exhibit A. The City Council does not have the ability to change the City's electoral system on its own. Also, the consistent record of minority electoral success raises a question about whether the City's electoral system violates the CVRA. However there are other governmental reasons w h y th v oters may wish to change the City's electoral system. Therefore, the City commenced a process of public education and I outreach to the City's voters to investig6t.e the issues raised in Plaintiffs' demand I letter, educate the - voters about available alternativesl and hear from the voters on the issue. (Soldani Dec.,$ 4.) BY telOhOne On Jude 2 0, and a few days later in a letter dated June 22, 2012, the City advised Plaintiffs' cou nsel about this process and the scheduling of a public hearing and forum for July 11, 2012. The City's attorneys wrote: As we discussed by telephone on June 2o, 2012, a decision to change to district-based elections could have far reaching of . ects on the citizens. of the City, and to date, there has been no public discourse on this . issue. Rather than make a decision on this important issue in a - vacuum, the City believes that it is imperative to involve the citizens of the City in the decision making Process. To this end, the City has scheduled a public hearing for July 11, 20-12, at which a panel. of experts will provide a presentation . on voting rights issues and redistricting; ... The City would like to extend to you a formal invitation to participate on.this panel. I I (Soldani Dec., T 5 & Ex. B.} The City also asked that it be provided with the information concerning racially polarized voting that had been developed, so that information could be considered by the City in its decision-making process. (1d.) Rather than accept the invitation, the Plaintiffs filed this action on June 28, 11 2-012. Also, they did not provide the evidence they claim to have concerning racially polarized voting and a violation of the CVRA- (Soldani Dec. t 7.) - UF - ,FF-NDANI' CITY OF ANAHEIM'S MEMORANI OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STAY LITIGATION Page 5 a� s: 9, 10 12 a � :L6 17 �a 19 20 21 22 23 2s 26 2 7 2$ The public forum went forward nevertheless, and since then, the issue: of the City's electoral system has been discussed in public comment and on the Council's agenda several times. (oldani Dec. $ S.) The public, and Plaintiffs themselves, have been very vocal in public comment to the City Council, manifesting a ; divergence of opinion about how the City should modify its electoral system, if at all. Some have asserted that four of the City's council members should be elected in districts.; Anaheim's Mayor proposed that the council be expanded to six members elected by- district at a Council meeting at which members of the public, at the same time, were, advocating. for expanding the Council to eight: members elected by- district. Others have suggested the elimination, of the. office of mayor and the institution of alternative electoral methods including at- large elections with residency areas, cumulative or limited voting systems, And ranked choice voting. (Soldani Dec., ¶ 9.) In light of the divergence of public opinion, on August 8, 2o12, the Anaheim City Council adapted Resolution No, 2o12 -o90 for the purpose of, among other things, engaging the public in studying the pity's electoral system and recommending potential changes to promote the full participation of all citizens in local elections and ensure that all citizens of the City of Anaheim have an equal opportunity to elect their chosen candidates. The resolution provides for the formation of a Citizens Committee whose mandate is specifically to study different election systems for the City, including various forms of district - based elections, and to make a recommendation to the City Council on or before .lay 3 1, 2012. (oldani Dec., Ex. C.) Resolution No. 2012 -090 specifically provides in paragraph 4(1) that the Committee "shall provide advice to the City Council on promoting the full participation of all ethnic and racial groups in local elections, including recommendations on the following: DEFENDANT CITY OF ANAHEIM'S MI MORANDUI OF PO NT5 AND ,AUTHORITIES IN SUPPORT OF M OTION TO STAY LITIGATION CASE N0.3 Page 6 L 3 4 b s z� Potential changes in the City',$ election systems, including election by- district (solely elected by residents of that district), residency - required districts (that retain at-large elections), continuing with an at - large elected mayor or resuming Anaheim's historic system of having the mayor appointed by the council, the number of districts, if any, cumulative voting; traditional runoff voting, and the date of elections; ..." The Citizens Committee is now formed, its first organizational meeting was October t8, 2012 it is.. required to complete its work can or before Nlay . 1, 201 3. (Soldani Dec., fix. C.) .After the passage of Resolution No, 2_oj2 -o9o, the City sent a letter to Plaintiffs' counsel asking if his clients would stipulate to a temporary stay of the litigation to permit the parties and the community to focus on the political process, and allow the Committee to do its work. T City wrote 19 20 21 22 23 24 25 ab 27 28 Since the City's electoral system can be changed only by the voters of Anaheim, the Commission is a continuation of public outreach/ education efforts by the City we discussed by telephone on June 20, 2oi2, and again by letter to you dated. June 22, 20.2. You may recall at that time, the City had scheduled a public. hearing and educational forum on this issue for July il, 2012_, You, . however, chose nevertheless to attempt to preempt and disrupt the 'political process by filing the above action on June 28, 2012. Given the continuation of this City's public outreach /education effort and the timing of completion of the Commission's work, we respectfully request that your clients stipulate to a temporary stay of the litigation that would last until July 1, 2013, This approach allows the political and commun involvement process to continue to its completion and would save the City (and your clients) costs and expenses that they may never have needed to incur. At the conclusion of the Commission's work, the City will be in a position to evaluate its recommendations and place any needed measures on the ballot for voter approval in time to be implemented for the next regularly scheduled City Council election in November of 2014. Of course, your clients would be free to continue to litigate the matter should a legal cause for such exist following the City Council's acting upon the Commission's final recommendations. B FPNDANT CITY OF ANAI-II I?vI'S MEMORANL OF POINTS AND AUTHORITI ES IN SUPPORT O MOTION TO STAY LITIGATION CASE NO. Page 7 I If an agreement to stipulate to a stay of the litigation cannot be reached, we will seek such a stay by motion to the court. I ! (Soldani Dec., � 16 & Ex. D.) s .9 0 11 12 1 3 , 14 1.5 1s 1 7 is 19 20 21 22 23 24 25 26 2 7 ,28 Plaintiffs' counsel sent a response on September 4, P- 0I2 refusing to agree to a stag. It is clear from that letter that the only resolution acceptable to the, Plaintiffs is a court order, stipulated or otherwise, forcing the City to change its electoral system to one suitable to then., without regard to the. views of the public or a dote of the peop . (Soldani Dec. ¶ 17 & Ex. E.) Plaintiffs also will not assist the Citizens Committee. by providing the evidence to support their allegations that the City is in violation of the CVRA including the evidence of racially polarized voting. Plaintiffs retorted to the City's renewed request for this information "We do not believe that process is being undertaken. with any serious consideration of changing the election system, and therefore will not subunit to that process evidence that properly belongs in, and will be provided to, the Court and the City at the appropriate stage of the litigation process." (Soldani Dec.,, Ex. E.) Plaintiffs recently propounded substantial discovery, including into the formation of the Committee and its individual members. (Soldani DecA 18 .). This Court has the inherent power to stay the pending litigation in deference to the legislative processes of the City of Anaheim, which had commenced a process to examine Anaheim's election system before this action was filed. 2 The City believes that it is equally clear that the Plaintiffs filed their action immediately after the learned of the City's political process to try to perfect their right to claim attorneys' fees pursuant t; Elec. Code .§ 14030. If there is no lawsuit, plaintiffs are not entitled to fees render section 1403( and the so-called "'catalyst theory." Graham v. DaimlerChrysler (2004) 34 Cal.4th 553,57 Plaintiff's apparently believe that a stipulated court order changing the City's electoral systen would strengthen their claim for an award of attorneys' fees. OF POINTS AND AUTHORITIES IN SUPPORT OF NOTION TO' STAY LITIGATION 34.20i z- 005'79998- eta- C1R -cxc I'a8e $. z 11 Freiberg v. City of Mission Viejo, 33 Cal. App. 4th 1484, 1 4 8 9 ( ( "Trial courts generally have the inherent power to stay proceedings in the interest of justice and to promote judicial efficiency. "). The inherent power of the court to ensure the orderly administration of ,justice is derived from Article V1, § x of the California. Constitution, which provides that the judicial power of the state is vested in the Supreme Court, counts of appeal, and superior courts.. Walker v. Superior Court, 53 Cal. 3d 257,266-67 (199 } Further, California Code of Civil Procedure section 1.87 provides additional authority for this Court to exercise: its inherent power to stay these proceedings 1! �s 4. x6 17 1.8 19 20 21 .22 23 24 2 26 27 .s and ensure the orderly administration of justice. Bailey v. Fosca Oil Co., 216 Cal. App. 2d 813, 817 $ (1963) (upholding a trial court's authority to isslue a stay as derived from common law and Code of Civil. Procedure section 187). The statue permits this Court to adopt "arty suitable process or mode of proceeding" in conformity with the spirit of the Cade. Cal. Code Civ, Proc. §x.87. A temporary star should issue in this case. Tempo B, The City Has Constitutionally Granted "Plenary Authority Over. The Manner And method Of Election Of Its Council Members; A ,o This C onstitutional Grant Of Plenary Power To The City. Anaheim is a Charter City. Charter cities are authorized by the California Constitution to govern their own municipal affairs. gate Building & Construction Trades Council of California v. City of Vista, 54 Cal. 4t 547, 552 (20 2). article XI, § 5, subdivision (a) of the California Constitution provides the general rule that charter cities may make and enforce all ordinances and regulations with respect to municipal affairs. This means that ordinances adopted by charter cities to govern municipal affairs supersede state law. State Building & Construction Trades Council, supra, 54 Cal. 4th at 552. DEFENDANT CITY 0F ANAHEIM'S MEMORANDUM OF POINTS AND AE1 n4ol mis rN suppoRT of MOTION TO STAY LITIGATION CASE NO..30- 2412- I1p579= Page 9 1 3 4 12 =s: 14 6 17 18 .tg, 20 21 22 23 2 4 26 27 28 In this case, there is no need to speculate about whether the City's electoral system is a municipal affair. Article XI, § s(b) specifies core categories of municipal affairs where charter cities have "plenary authority" to legislate, These core areas include the manner, method and conduct of city elections. Article XI, § s(b) provides. "(4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide [in all city charters for] the manner in which, i I the method by which, the times at which, and the terms for which the several municipal officers ... shall be elected ...... See, Johnson v. Bradley, 4 Cal. 4th 339, 398 (1992). A temporary stay would demonstrate appropriate deference to this Constitutional grant of plenary power to the City of Anaheirn. Before this litigation was filed, in the exercise of its plenary authority, the City commenced a legislative and political process to evaluate and recommend changes to the method and manner by which City Council members are elected, a core municipal affair, and to place those choices before the voters. A temporary stay of" this litigation would permit the political process to operate to completion. C. A. Temporary Stay Is Consistent With The Separation Of Powers Doctrine Because Determining The Proper Electoral System For A. City Is A Political Question Properly Consigned To The Legislative Processes Of The City. Determining a method of electing members of the City's legislative body is a peculiarly political question entrusted to the City by Article X1, § 5(b). The public process to date has generated numerous opinions about the proper method for electing City Council members for the City of Anaheim ranging from the status quo to expanding the City Council to eight members elected by- district, and alternative methods of election such as limited voting, cumulative voting and ranked choice voting. Which method would best serve the residents of Anaheim is an intensely political question, which the courts are generally reluctant to tackle. See, e.g., Legislature of California v. Reinecke, b Cal. 3d 595, 598 (1972) ( "As we have CASE NO, 34 -20 Page 10 DEFLNDANT CITY OF ANAHEIM'S MEMORANE OF POrNTS AND AUTHORITIES IN SUPPORT OF MOTION TO. STAY LITIGATION ' repeatedly emphasized in the past, ... reapportionment is primarily a matter for the legislative branch of the government to resolve. "); Griswold v. Country of Son .Di�90, 32 Cal. App. 3d 56; 62 0973) ( "Apportionment is peculiarly a political function addressed to the legislative branch and involves matters not appropriate 4ear courts to de4de. "); Nadler v. Schwarz.enecgger, 136 Cal. App. 4th 1327, 1 338 11 (2o06) ("Court should not be "second- guessing what has consistently been s 17 as ?s 20 21 :22 2 3 25 26 27 28 referred to as a political. task for the legislature; a task that should not be I monitored too closely by the courts]." (Davis v. Bandemer, supra, 478 U.S. at P. 1 33 [92 L. Ed. 2d at p. io61 -) While the above cases concern adjustments to a jurisdiction's electoral districts, the same considerations apply in 'this case. Determining an alternative electoral system will require consideration of legitimate competing interests that only the legislative process is equipped to weigh and balance. Plaintiffs in this case have raised an interest. under the CV; but there are other interests as well that must be taken into account when considering the question of changing the City's electoral system.. 'these interests include the rights of other groups protected under the CV considerations of geography, topography,. and historical and developing communities of interest, as well as the administrative structure, and land use and other policies and goals of the City. Even in situations when electoral systems have been declared to be illegal, the courts have recognized that the duty to craft a remedy is one best left to the legislative body. For example, in Silver v. Brown, 63 Cal. 2d 841, 847 (1966), the California Supreme Court stated: The makeup and apportionment of the Legislature involve peculiarly political questions that are not appropriate for this court to decide. They are far better entrusted to the collective political wisdom of the Legislature subject to the power of initiative and referendum reserved to the people. ... To preserve diversity of representation, the Legislature may deem it wise to change the number of 'its DEFENDANT CITY OF ANAHEIM'S M1:,MOKANL OF PC11NT5 AND AUTi [OR [TIES IN.SUPPORT OF MOTION TO STAY LITIGATION CASE ISO, 34.241 Page I I x 2 4 6 a 9. a� 12 14 15 z6 17 is 19 20 21 22 2 3 24 25 26 27 28 members. It may deem it wise in some cases to provide for the election of more than one senator or assemblyman at large from a dual or multimember district. In other cases it may deem it preferable to join part of one county to another in forming a district. Courts are generally reluctant to interfere in the political process of determining the manner and method for electing the local legislative body of a city based on the policies of judicial restraint and deference to the legislative body to which political questions are consigned. Judicial deference to the City's ongoing political process to study and cm.nsider alternatives to its current electoral system is consistent with the s eparation of powers doctrine under which the legislative branch. is entitled to deference from the courts in those natters entrusted to it. One such matter is the manner and method of electing City CouncR members under Article XI, § 5(b) of the Constitution. This separation of powers and legislative deference principle I applies to both state and local legislative bodies. See, San Francisco Fire Fighters I Local 798 a City and County of San Francisco, 38 Cal. 4th 653, 667 ( 2006). Connecticut. Indemnity Co., v. ,Superior Court of Sari Joaquin County, 23 Cal. 4th 807, 814 (2000) ( "It is a well -seed principle that the legislative branch [of a city] I is entitled to deference from the courts because of the constitutional separation of powers. (Western States Petroleum .Assn. v. Superior Court (1995) 9 Cal. 4th 559, 57 138 Cal.. Rptr, 2d 139, 888 P. 2d 12681. "). In creating the Citizen Committee, the City Council has undertaken a legislative investigation into the specific concerns of plaintiffs and others regarding the current at- large election system. Legislative bodies may conduct such investigations to assist their legislative decision - making. Connecticut Indemnity supra, 23 Cal. 4th at 814. The Citizen Committee has explicit instructions to conduct a wide- ranging investigation, make recommendations on potential changes to the City's electoral process, and consider alternative systems, including the election by- district method advocated by Plaintiffs. tangoing litigation parallel to the political process could hamper the Citizen Committee's investigative work DEFENDANT CITY OF ANAHEIM'S MEMOKANI OF PONTS AND AUTHORITIES Chi SUPPORT OF MOTION TO STAY LITJdATION CASE NO. 30-201 Page 12. 4 6 7 io 11 -12 14 1 5 16 1 7. 18 19 20 21 22 23 :24 26 �7 28 through intrusive discovery and preemptive motions discouraging a wide-ranging investigation of the electoral system and consideration of all potential alternatives. The threat of becoming embroiled in ongoing litigation could even chill the willingness of citizen members to serve and perform this important function. This Court should invoke. its inherent authority and the separation of powers doctrine to stay these proceedings to allow the deliberative legislative process, begun before this action was filed, to run its course. D. Issuing A Stay Will Promote Judicial Economy And Will Not Prejudice Plaintif1s. A stay would also be protective of judicial resources so that they are not expended on a matter that may ultimately be resolved or significantly changed through the ongoing political process. Allowing this litigation to move forward in parallel with the Citizen Coinmittee work. would be aparticularly inefficient use of judicial kesource8 because the facts are currently evolving. The status of the.. Anaheim election system may change based on the recommendations of the Citizen Committee, potentially rendering any judicial determination on the issue of the legality of the at-large system unnecessary and/or merely advisory, The Citizens Committee may recommend by-district elections with or without an expansion of the size of the. City Council, potentially mooting this action. The Citizens Committee could also recommend a different system of electing City Council members, for example through a limited or cumulative voting system. The CVRA does not mandate by-district elections as the only remedy, but allows other solutions to an alleged violation. Elec. Code § 14029. Should a change to an alternative to by-district elections be implemented, a challenge to the new election system would not be ripe. There is an argument that the CVRA does not apply to I such electoral systems. I DEFENDANT CITY OF ANA14EIWS MEMO ANT OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STAY LITIGATION CASE NO. 30-201 Page 13 5 6 i2 �3. 14 17 is 19 20 21 22 ,2$ 24 25 26 27 28 Staying the litigation would. promote judicial efficiency by ensuring that any determinations made by the court are based on an actual set of facts that are in dispute. Such a "ripeness" requirement helps regulate a court's workload and is grounded in the recognition that "judicial decision making is best conducted in the context of an actual set of facts so that the issues- will he framed with sufficient definiteness to enable the. court to make a decree finally disposing. of the controversy." Pacific Legal Foundation v. California Coastal Commission, 33 Cal. 3d 158, i7o (1980. A stay would also %promote economy to the parties: by avoiding unnecessary expense of discovery of and litigation about facts that are subject to change in a manner that would moot this action, or significantly alter it. Plaintiffs have recently propounded a significant amount of discovery that will likely result in discovery motions. The City itself intends to file immediately additional procedural and possibly dispositive motions if a stay is not granted. All of this is an unnecessary expenditure of resources . if the City's electoral system is changed through the political process. Permitting extensive litigation now also allows Plaintiffs to unfairly pad their inevitable claim for attorneys' fees if the City does change its electoral system pursuant to the political process that the City Council set in motion prior to the filing of this action. A temporary stay until the early summer of 2013 will not be prejudicial to the Plaintiffs. The next City Council elections are not until November 2014, nearly 16 months later, ample time for the City to place a kneasure on the ballot changing the City's electoral system for 2014. This is also ample time for Plaintiffs to seek temporary relief and in which to complete trial of this action should the Plaintiffs not be satisfied with the outcome of the political process. Moreover, the judgment in this case is very likely to be appealed because it will be the first judicial decision applying the California Voting Rights. Act since its enactment in 2-ow. Given the. OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO. STAY LITIoNnoN Page 14 2 3 4 7 8' 9 40 11 x2 ig :16 17 is .39 20 21 22 23 .24 25 f)6 27 28 time necessary to complete an appeal, it is highly unlikely that a judicially imposed by-district electoral system would be used for the City Council elections in 2-014, Lastly, the Plaintiffs' best opportunity for a change for the 2014 elections is through the political process, including their fall participation by, among other things, providing to the Citizens Committee whatever evidence they may have of racially polarized voting and the alleged violation of the CAA. Such evidence would certainly be pertinent to the Committee's work. Irv. C0_NCL1US10N The. City of Anaheim respeoff ally requests a temporary stay of this action until, July i, m3 in deference to its plenary authority under Article XI, §5(b)(4 Of the California Constitution and the political process set in place before the filing of this action to exercise that authority. Dated: October—, 2,012 NIELSF.,N MERKSAMER PARRINELLO GROSS & LEONI LLP By: Marguerite Mary Leoni Dated: October 22:, 2012 ATIUNSOX, LOYA, RUUD & ROMO By: "Divid A. Soldani Attorneys for Defendant CITY OF ANAHEIM DEFENDANT C ITY OF ANAHE IM'S MEMORANDUM OF POINTS AND AUTHORITIE IN SUPPORT OF MOTION TO STAY LITIGATION CASE NO, i time necessary to complete an appeal, it is Highly unlikely that a judicially iniposed by-district eleaoral system would be used for the City Council cle: tions in '2014. Lastly, the Plaintiffs' best opportunity for a change fol' the 2014 ulecLiorl s is through the political process, iuluding, their full participaLion b37, alliollg 01110 :• 5 tllhYgs, prat =icling to the Citizens Cesninjittee whatev& evidence they niav have (A r; racially palarifed voting and the alleged violation of the (_VM,. Such o idelice 1 would certainly.be pertinent to the Committee's work. I: . CONCLUSION Tlie, City of Anaheim r spectf611y retltjeso a temporary Stay OF this action o.ntil July a, 2q i;3 in deference In its plenary a,.1thority jxei:er Article XT, §5(b)(4) pf 41 the California Ccinstitution &nd the political process set in place before the fling Of i : this aetion ib exor that authority. i Dated: October :�. , 20x2 NIELREIN 11 ERKSAMER 4 PARRINELLO GROS's & LEO.3�I l ,p 1 z;y r } i ?6 ? By: t ( arguerite NI- Leoni 19 �i Dated: October 2 ", 901. °? A'I`KTNSO�,'AN I�aI..SC}N, LOYA, RUUD & RC)M0 20 j _tea j D avid A. sQldani 1 Attorneys for Mendant i , CITY OF ANAI-1-HIM �a i ! Ni1[•: t), 1\ t'i'!' Y' f3I•' 1" �'\ lii :ili'S:k1lihit.}lZr1A`1JI,iA•i , 'C't14) .`+: t3..,? I, U?• �;t:�7�3 t'E�- i'. \C': 1 tlE'i'(1!\'!5A N'1)A (1 ?1ORY1"E} ? IN:i[!1'1'.ORT01: - i'{ ?.s'}'_lY 13Pi IGATIO t li i3 1 2 13 4 �5 6 7 io 12 1 3 1 4 1 5 i6 1 .7 18 19 21 22 2 3 24 25 . 26 28 X BY PERSONAL SERVICE: I placed the above document in a sea". envelope. I caused said envelope. to be handed to our messenger service to delivered by hand to the above address(es). Executed in Fresno, California, on October 23, 2012. 1 declare under penalty of perjury, that the fore red. %Z=�— Karen PieriJ DEFENDANT CITY OF ANAHEIM'S MEMORANI or POINTS AND AUTHMITICS IN SUPPORT OF MOTION TO STAY LITIGATION CASE NO. 30-20 12-00579998-CU-CR-CXC page 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17' 18' 19 20 21 22 23 24 25 26 27 28 BELINDA ESCOBOSA HELZER, CA Bar No. 214178 bescobosahelzer @aclu- sc.org BARDIS VAKILI, CA Bar No. 247783 bvakili @aclu- sc.org ACLU Foundation of Southern California 2100 N Broadway, Suite 209 Santa Ana, CA 92706 (714) 450 -3962; (714) 450 -3969 (Fax) MORRIS J. BALLER, CA Bar No. 048928 mballer @gdblegal.com LAURA L. HO, CA Bar No. 173179 lho @gdblegal.com KATRINA L. EILAND, CA Bar No. 275701 keiland@gdblegal.com GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 (510) 763 -9800; (510) 835 -1417 (Fax) ROBERT RUBIN (BAR NO. 85084) robertrubinsf@gmail.com LAW OFFICE OF ROBERT RUBIN 315 Montgomery Street, 10th Floox San Francisco, CA 94104 (415) 434 -5118 Attorneys for Plaintiffs JOSE MORE-NO, AMIN DAVID, and CONSUELO GARCIA IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE JOSE MORENO, AMIN DAVID, and CONSUELO GARCIA, Plaintiffs, VS. CITY OF ANAHEIM, Defendants. Case No.: 30- 2012 - 00579998 -CU -CR Civil Unlimited ` WA M Effj U 11 IM 9W 10 , 104 ; Date: December 6, 2012 Time: 2:00 p.m. Dept: C13 Jude: Hon. Gregory Munoz Action Filed: June 28, 2012 Trial Date: None Set PE.ATNTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION - CASE NO.: 30- 2012 - 00579998 -CU-CR 434402 -15 l 2 3 4 5 6 7 8 g 10 ll 12 13 14 15 16 17 18 19 %0 21 %2 23 24 25 20 27 28 L INTRODUCTION ............................. —.— ................................. - .................. ............ ........... l . D. FACTUAL ----------------------------.-- .............. 2 111 ARGUMENT --'----------^'^^^--'—'--------''-'—'---'—'--~^^^^^'-5 A. There Is No Authority for the Issuance of a Stay Based on a Speculative Event that May _`" May Not ^°.~^^.~~~~~.~^~k^~..^.`.~.~'.~ .---.--.......--. l. Judicial Efficiency Would Not BcServed b«4 Stay ............................................. 6 2. Denial nfa Stay Does Not Prejudice the City' ................................ ..................... 9� 3. A Stay Would Severely Prejudice Plaintiffs . ........ .................................... —....... lA B . The Absolute the Court and Has Been Rejected ByEvery Court that Has Considered & ...................... .... 12 C' Separ u[ Powers Does Not Justify /\Stov.— .......................... .............................. l3 i rmINnrFS'MsmoRANDuMm, POINTS AND AUTHORITIES IN OPPOSITION ro DEFENDANT CITY opANA | MOTION rnSTAY LrrmN,mJm' CASE mo: 30e012*0 799Yo�U-Cn I TABLE OF A VTHOFJTIES L Pages` JB 3 ST ATE C ASES 4 Gonzalez v. City of Compton (Los Angeles Super. Ct., No. BC450494, March 17, 2011) ....................... .............................13 5 Freiberg v. City of Mission Viejo, 6 33 Cal. App. 4th 1484 (1995) ..5 � 7 In re Lamps Plus Overtime Cases, 8 125 Cal. R tr. 3d 590 (2011) 278 P.3d 259 (Cal. 2011) ............................................................................ ..............................7 9 Johnson v. Bradley, 10 4 Cal. 4th 389 ( 1992) .................................................................................. .............................12 11 Rey v. Madera Unified Sch. Dist., 12 203 Cal, App. 4th 1223 ( 2012) ................................................................... ............................... 8 13 Rice v. Superior Court, 136 Cal. App. 3d 81 (19 8 2) .................................... ........................... ... ....... .............................. 5 14 Sanchez v. City of Modesto, 15 145 Cal. App. 4th 660 ( 2006) ....................................................... ............ :.......... .................... 13 16 Satorre v. San Mateo County 17 (San Mateo Super. Ct., No, C1V504866, Oct. 3, 2011) .............................. .............................13 18 State Bldg. and Constr. Trades Council v. City of Vista, 54 Cal. 4th 547 ( 2012) ................................................................................ .............................12 19 Walker v. Superior Court, 20 53 Cal. 3d 257 ( 1991) ..................................................... ............................... ........................... 21 FE DERAL C ASES 22 Cotner v. City of Martin, 23 445 F.3d 1113 (8th Cir. 2006) ........... .............. ............................ ... ............ ,............. ---- .....14 24 Gold v. Johns — Manville Sales Corp., 723 F.2d 1068 (3d Cir. 1983) . ................................ .................... — ............................... ........... 5 25 Landis v. North American Co., 26 299 U.S. 248 (1936) .. ......... -- .................................................................... ..............................5 27 McGhee v. Granville County, 860 F.2d 110 (4th Cir. 1988) ...................................................................... .............................14 28 ii PLAINTIPW MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAI -IM'S MOTION TO STAY LITIGATION -CASE NO.: 30-2012 - 00579998 -CU-CR 434402 -16 1 2 3'' 4' 5 6' 7 8 9 10 11 1.2 13 14' 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reynolds v. Sims, 377 U-S. 533 (1964) ...................................................................... Rivers v. Walt Disney Co,, 980 F. Supp. 1358 (C.D. Cal. 1997) ............................. ........... White v. Weiser, 412 U.S. 783 (1973) ....................................... ............................... ........................................ ... ............................... 5 ......... .............................14 STATE STATUTES California Election Code § 14025 ........................................................................................................... .............................1, 3 § 14028(b) ......................................................................................................... ...................... ........3 § 14031 ......................................................................................................... .............................2, 13 OTHER A.U"TBORITIES Eric Carpenter, Kring, Brandman Win Council Seats in Anaheim, OrangeCounty Reg., Nov. 7, 2012— ........................................................................................ 3 Bonnie Eslinger, Judge Resets Trial on San .Mateo County's Besieged Voting System Until After Fall Election, Palo Alto Daily News, July 26, 2012 ......................... ............................... 8 David Garrick, Escondido Rejects Charter Measure but Approves General Plan Update, N. County Tildes, Nov. 6, 2012 .................................................................. ............................... 7 David Garrick, Escondido: Voting Rights Lawsuit Shifts to Fight over Election District Boundaries N. County Times, June 1, 2012 .................. ........................................... ................. 7 Abby Sewell et al., Compton Plans Ballot Measure on Switching to Voting by District, L.A, Times, March 1, 2412 . ............................ ..................................... ..................................... 7 111 PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORI'T'IES IN OPPOSITION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION - GASP NO.: 30- 2012 - 00579998 -CU-CR 434402 -16 2 4 11 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs Jose Moreno, Amin David, and Consuelo Garcia challenge the City of Anaheim's ( "the City" or "Anaheim ") at -large election system for electing City Council members. The system violates the California Voting Rights Act ( "CVRA') by impermissibly diluting the voting strength of Latino residents, thereby depriving them of their right to participate meaningfully in local elections. See Elec. Code §§ 14025 et seq. Plaintiffs' lawsuit is timed to enable a judicial resolution of the legality of Anaheim's at -large election system and the implementation of an appropriate remedy prior to the next City Council election in November 2014. However, the City asks the Court to grant a nine month stay of Plaintiffs' case based only on the possibility that the City might consider changing its election system. The City does not point to any specific event that will occur and obviate the need for litigation. Rather, it relies on the convening of a citizens advisory committee that will consider a long list of election - related matters, including the possibility of changing the election system_ While characterizing this as a "legislative investigation," the City includes no commitment that it will actually remedy its CVRA violations; indeed, there is no proposed ordinance or policy change, nor any concrete scheduled event that would render further litigation unnecessary and justify a suspension of this action.. Judicial efficiency is disserved by stalling the resolution of a lawsuit on the mere possibility that a future event, which is dependent on multiple contingencies, might possibly impact the case. Indeed, allowing the parties to proceed with discovery, which involves minimal Court resources, would promote judicial efficiency, as the case could then move more expeditiously to trial in the likely event that the City's investigation does not dispose of Plaintiffs' CVRA claims. The interests of justice also weigh strongly against staying the litigation, as a stay would prejudice Plaintiffs by delaying the vindication of their civil rights. The City's stay request rests on two legal arguments: (1) the City has absolute "plenary power" over the manner and method of conducting its elections, and (2) determining the appropriate election system for a city is a political question to be resolved only through the legislative process. Neither of 1 In August 2012, the City requested that Plaintiffs agree to a stay until July 2013 (Plaintiffs promptly refused). It then delayed filing its motion until October 2012 after Plaintiffs served discovery. Thus, a stay, if granted, will result not only in a nine month delay of Plaintiffs' lawsuit from the time Anaheim filed its motion, but effectively an 1 I month delay in total. I PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION - CASE NO.: 30- 2012 - 40579998 -CU-CR 434402 -1& 1 2 3 4 5 6 7 8 9 10 1I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 these two contentions is supported by case law or warrants a stay. The City's assertion of "plenary power" over elections has been rejected by every court that has considered it. Similarly, the question of whether this action impermissibly seeks resolution of a political question should be answered through litigation, rather than its avoidance. The Court should not grant the stay requested by the City based on an entirely uncertain, speculative "investigative" process that offers no assurance that Plaintiffs' concerns will even be addressed, much less fairly and conclusively resolved. ft�N �!! Kl111►`1:17 In 2001, California enacted the CVRA., which prohibits use of an at - large election method in a manner that impairs the ability of a racial minority group to influence the outcome of an election. The legislature passed the law in order to safeguard the right to vote and ensure equal protection of the laws, as guaranteed by the California Constitution- See Elec. Code § 14031. Plaintiffs sent the City a demand letter on April. 11, 2012, informing Anaheim that its at -large election system violates the CVRA and demanding that it change its method of election. See Declaration of Morris J. Balser, submitted herewith ( "Bailer Decl. "), Ex. A. in the seven months since then, the City has engaged in a continuous pattern of delay and evasion. The City first responded by requesting that Plaintiffs defer filing the lawsuit until after the November 2012 election because the City might decide to put a measure on the ballot to change the at- large system. Although Plaintiffs declined to delay filing until November 2012, they agreed to await the results of the City Council's June 2012 meeting in which Plaintiffs' demand was scheduled to be discussed. At its June 2012 meeting, however, the City Council took no action except to schedule a public meeting on the issue of City elections for July 11, 2012. In light of the City's failure to act expeditiously to remedy its CVRA violations, Plaintiffs filed . this lawsuit on June 28, 2012, alleging that the City's use of an at -large election system violates the CVRA because it impairs the ability of Latino voters to elect candidates of their choice or to influence the outcome of elections. See Bailer Dec1. Ex. B, Pis.' Compl. T 1, Plaintiff's contend that the prevalence of racially polarized voting, along with several other factors, including a history of 2 Racially polarized voting occurs when there is a difference in the choice of candidates or other electoral choices that are preferred by voters in a protected class, as compared to the choice of 2 PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSI'T'ION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION - CASE NO.: 30 -2012- 00579998 -CU-CR 434402 -16 discrimination in the City that still impacts the Latino community's exercise of its voting rights, results 2 3 4 5 6 7 9 10 11 12 13 14 15 1.6 17 18 19 20 21 22 23 24 25 26 27 28 in a lack of meaningful access for Latinos to the political process in Anaheim. Id. T 2. Under Anaheim's Council - Manager form of government, the City Council operates as the legislative body and a City Manager acts as the chief administrative off Currently, four City Council members are elected at -large to serve four -year terms in alternate slates every two years. The Mayor is also a member of the City Council and is elected at -large for four years. Anaheim, with a population of approximately 336,000, is the largest city in California that still elects its City Council through at -large elections. Id. T 10. Although Latinos make up 32% of the City's total Citizen Voting- - Age Population (and over half of its total population), no Latinos currently sit on the City Council. Id. 12 -13. In fact, in the City's history, only three Latinos have ever served as City Council members, and none has been elected Mayor. Id. ¶ 13. Plaintiffs seek to enjoin Anaheim's continued abridgement of Latino voting rights. They request a declaration that the City's current at -large election system violates the CVRA and an injunction to prevent the City from continuing to impose or apply its current at -large method of election for the November 2014 and all subsequent City Council elections. Under Election Code Section 14025, the CVRA authorizes the Court to order appropriate remedies, including the imposition of district -based elections, or other alternative relief, which will permit Latinos a fair opportunity to elect candidates of their choice and/or to influence elections. After Plaintiffs fled this lawsuit, the City Council considered whether to place a measure on the November 2012 ballot that, if passed, would have changed the election system from an at -large to a (continued ...) candidates and electoral choices that are preferred by other voters in the electorate. Elec. Code § 14028(b). Because the Latino electorate supports different candidates than the rest of the electorate, the non - Latino voting majority dominates the City's elections and can, and usually does, defeat the preference of Latino voters. Pls.' Compl. 122. J In the November 2012 City Council election, two non - Latinos were elected to the two open seats, even though at least three Latinos ran for office. See Baller Decl. Ex. H, Eric Carpenter, Kring, Brandman Win Council Seats in Anaheim, Orange County Reg., Nov. 7, 2012. Q Anaheim contends that a greater number of members of a racial minority group, including Hispanic persons, have been elected; however, it provides no evidentiary support for its assertions. See De£'s Mot. at 34. In any event, the racial composition of the City Council is a disputed fact that cannot be resolved on the present motion. Indeed, the merits of Plaintiffs' claims are not at issue and have no bearing on the appropriateness of a stay. If anything, the existence of factual disputes weighs in favor of permitting the parties to discover and present evidence to the Court without delay. PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DFFENTIANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION - CASE NO.: 30- 2012 - 00579998 -CU-CR 434402 -16 2 3 4 5 6 7 9 10 11 12 1.3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 district -based plan. In August 2012, the City Council voted against the measure, rejecting it by the same 3 -2 margin as it did twenty years earlier in 1992. Icy. ¶ 18. Instead of approving a ballet measure, the City Council passed Resolution 2012 -090, which convened a Citizens Advisory Comrrlittee on Elections and Community Involvement ('Committee"). See Baller Decl. Ex. C. In late August 2012, counsel for Anaheim contacted Plaintiffs' counsel and requested that Plaintiffs stipulate to a stay of the litigation until July 2013 on the basis of its convening of the Committee. See Bailer Decl. Ex. D. Plaintiffs declined to suspend the litigation by agreement and indicated that they would oppose any stay request made to the Court because the Committee is not a serious or adequate response to Plaintiffs' contentions, and because Anaheim's proposal rests on too many contingencies without any assurances that Plaintiffs' claims will be addressed. The instant motion was filed two months later, after Plaintiffs served discovery. The Committee is composed of individuals appointed by members of the City Council, a majority of whom have opposed changing the election system from the at -large system under which they were elected. Among many other tasks, the Committee is supposed to look at different election systems and may make non - binding recommendations to the City Council regarding the adoption of new election method. Compliance with the CVRA is not among the topics the Committee is to consider, and Anaheim suggests that the Committee may recommend election system changes for "other governmental reasons" unrelated to compliance with the CVRA. See Def.'s Mot. at 5. The Committee is currently scheduled to make any recommendations by May 31, 2013, but the authorizing resolution also provides for the possibility that the City Council may prolong its deliberations, as the Committee may complete its work "on such other dates as shall be set by the City Council." See Baller Decl. Ex. C T 5. According to the City's plan, if*the Committee recommends any proposed changes to 5 Although the Declaration of David Soldani submitted with the City's motion refers to Plaintiffs' counsel's letter as Exhibit E, there was no such exhibit attached to that Declaration. A copy of that letter is attached to the Bailer Declaration as Exhibit F. The letter spells out in detail many of the deficiencies of the Committee process, and Plaintiffs' reasons for believing it to be no more than a delay tactic by the City. 6 The Committee is also tasked with evaluating such matters as how to encourage voter registration, how to identify and engage community groups in elections and in local government decision - making, and language assistance programs. See Baller Decl. Ex. C. PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION -CASE NO.: 30- 2012- 00579998WCU -CR 434402 -96 2 3 4 5 6 7 8 9 1.0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the city's electoral system, the City Council will then consider them and determine whether to place a measure on the ballot for voter approval. In other words, the City is not committing to do anything through the Committee other than drag out the process of considering possible changes for well over a year after Plaintiffs notified the City of its liability under the CVRA. Notably, in its motion, the City dogs not provide the Court with a timeline for the City Council's consideration of any possible recommended changes to the election system, nor does it disclose when voters might be presented with a potential ballot measure. Rather, without pointing to a specific timeframe, the City vaguely asserts that a measure can be placed on the ballot before the November 2014 elections. Although the City's motion does not provide the Court with this important information, the City has publicly stated on its website that any vote on a ballot measure to change the City's election system would not take place until the June 2014 primary election — a mere five months before the next City Council election in November 2014. See Baller Decl. Ex. G. Im There Is No Authority for the Issuance of a Sta y Based on a Speculative Event that Ma or May Not — Take Place on an Unknown„ Future Date. As Defendant notes, "[tlrial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency." Freiberg v. City ofMission Viejo, 33 Cal. App. 4th 1484, 1489 (1995) (citing Walker v. Superior Court, 53 Cal. 3d 257, 266 (1991); Rice v. Superior Court, 136 Cal. App. 3d 81, 89 (1982)). See also Gold v.Johns—Manville Sales Corp., 723 F.2d 1068, 1077 (3d Cir. 1983). Whether to issue a stay requires the "exercise of judgment, which must weigh competing interests and maintain an even balance." Landis v. North American Co., 299 U.S. 248, 254- 55 (1936). Courts generally consider the following factors in determining whether a stay is warranted under the circumstances: (1) judicial economy; (2) the moving party's hardship; and (3) potential prejudice to the non - moving party. Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997). All three of these factors weigh heavily in favor of denying the requested stay in this case. First, judicial economy would not be served by stalling the resolution of Plaintiffs' claims for nine months given the multiple layers of uncertainty involved in the City's proposal. The Court's resources are minimally burdened at the early stages of litigation where the parties are engaged in the exchange 5 PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN 0PPOsmoN "1 DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION - CASE NO.: 30 -2012- 00579998 -CU-CR 434402 -16 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of information through discovery largely without the involvement of the Court. However, Plaintiffs would be more likely to invoke the Court's resources for any discovery issues if they are forced to wait for nine months to even begin discovery because the litigation schedule will be severely compressed and there will be less time for meeting and conferring between the parties. Second, Defendant has raised no hardship justifying a stay. There is nothing that prevents the Committee from continuing to study the issue while this lawsuit proceeds, and its work Haight even help inform the City on the design of an appropriate remedy at the conclusion of the case. Notably, the City does not even attempt to argue that it will be prejudiced if the stay is not granted. Rather, it contends that a stay should issue in deference to its purported "plenary authority" to manage its election system and because, it argues, the design of an election system is committed to the legislative process. These two arguments are both legal in nature, however, and the City has failed to raise them by demurrer. Moreover, these principles do not permit the City to ignore statewide anti- discrimination laws like the CVRA_ Finally, the interests of justice also counsel against the issuance of a stay where, under the City's proposed timeline, there is a high likelihood that the requested stay will result in Plaintiffs' inability to secure the relief they seek prior to the next City Council election in November 2014. 1. Judicial Efficiency Would Not Be Served by a StM. Anaheim contends that a stay until July 2013 is warranted because it would provide the Committee with an opportunity to study the election system and recommend to the City Council whether to place a new election system proposal on the ballot. However, the duration of the requested stay — until July 2013 — far exceeds any period of time necessary for the City to decide whether it is willing to convert voluntarily to by- district elections. It would not be efficient to stall resolution of Plaintiffs' claims, which implicate the voting rights of thousands of Latino residents, for nine more months while the Committee engages in a process that in no way assures that the City's CVRA 7 As Plaintiffs show, the City has no such "plenary authority," and the "legislative process" applicable here includes the restrictions imposed by the State Legislature in enacting the CVRA. See Section 11I.I3., below - s As noted above, in august 2012 the City Council voted not to permit the citizens of Anaheim to decide in November 2012 whether to change their election system. 6 PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITE.S IN OPPOSITION TO DEFE-NDANI' Crl'Y OF ANAHEIM'S MOTION TO STAY LtTIGA"I'ION - CASE NO.: 30- 2812 - 00579998 -CU-CR 434402 -16 violations will be adequately addressed, or that anything at all will be done. Of course, nothing prevents the Committee from continuing its work while the parties engage in discovery and prepare to try the case in the likely event that the City chooses not to remedy its CVRA violations, or that even if a vote is taken on such a measure, it fails. Courts are generally disinclined to stay litigation on efficiency grounds where, as here, the need 8 9 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for a stay is premised on an uncertain event that will not necessarily impact the resolution of issues in the case. See In re Lamps Plus Overtime Cases, 125 Cal. Rptr. 3d 590, 606 (2011), review granted and opinion superseded on other grounds, 278 P.3d 259 (Cal. 2011) (affirming trial court's refusal to issue stay to await decisions from the California Supreme Court on key class certification issues, reasoning that the Supreme Court cases had been pending for some time and it would not be efficient to stall resolution of class actions in the interim). In CVRA cases where parties have stipulated to short stays of litigation, or where courts have ordered trial continuances, the defendant entity had taken concrete steps toward changing the voting system to a CVRA- compliant method, subject only to final approval at a certain time in the near future. For example, parties have stipulated to a short stay of proceedings or settled CVRA matters after reaching an agreement with the defendant municipality to place a change to district -based elections on the next election's ballot. Recently, after the City of Escondido agreed in .tune 2012 to place a new city charter on the ballot for voter approval, which would have changed the election of city council members from an at -large system to a district -based plan, the plaintiffs agreed to suspend the case for several months until after the November 2012 elections. Similarly, the plaintiffs in a CVRA action against the City of Compton settled in February 2012 after reaching an agreement with. the City to place a measure on the June 2012 ballot that would institute district based voting. The parties agreed that, if the measure did not pass in June, it would go to the voters again in the November 2012 election. 10 9 See Baller Decl. Ex. 1, David Garrick, Escondido: Voting Rights Lawsuit Shifts to Fight over Election District Boundaries, N. County Tinges, .tune 1, 2012. The voters of Escondido, however, rejected the measure. See Baller Decl. Ex, J, David Garrick, Escondido Rejects Charter Measure but Approves General Plan Update, N. County Times, Nov. 6, 2012. But at least in Escondido, the lawsuit was only delayed by a few months, and only after a ballot measure was pending. Ia See Baller Decl. Ex. K, Abby Sewell et al., Compton Plans Ballot Measure on Switching to Noting by District, L.A. Times, March 1, 2012. PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITI(iAT'ION -CASE NO.: 30-2012-005 79998 -CU-CR 434402 -'16 Likewise, in a CVRA case brought against the Madera Unified School District, the parties 2 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stipulated to a stay of the action pending further order of the court when, following the court's order preliminarily enjoining the certification of the results of the upcoming election, the District's Board approved a specific plan for converting from at -large to CVRA compliant trustee -area elections, to addition to the Board's concrete steps, the County Committee, acting pursuant to the education code, approved the District's proposal to establish trustee areas and to convert the system of electing board trustees to a trustee -area electoral system. See, Rey v. Madera Unified S'ch. fist., 203 Cal. App. 4th 1.223, 1229 -30 (2012). Similarly, the trial court recently granted the County of San Mateo's ( "the County" or "San Mateo ") request to postpone the scheduled August 2012 trial date on the legality of the County's at- large system for electing supervisors pending the outcome of the November 2012 election.I I At the time of the continuance, the County had already placed a measure on the November ballot asking San Mateo voters to decide whether the County should replace its at -large supervisor elections with a district -based plan. The circumstances under which Anaheim seeks a stay of the instant proceedings differ significantly from these cases in a number of ways. First, in San Mateo, for example, judicial efficiency was not implicated in the same way because the parties had already engaged in discovery and were prepared to try the case in the event the voter measure failed. There was also sufficient time between the vote on the measure and the next regularly scheduled supervisor elections in which to hold a trial and implement appropriate remedies. Here, however, the City has requested a complete suspension of proceedings for nine months before discovery in the case has even gotten underway. Second, in all of the cases where litigation was suspended for a short period, the finial decision regarding a change to CVRA- complaint elections was to take place on a fixed date in the near future. indeed, in San Mateo, the date of the November election was imminent— approximately three months away — when the court granted the continuance. 11 Bailer Decl. Ex. L, Bonnie Eslinger, Judge Resets Trial on San Mateo County's Besieged Voting System until After Fall Election, Palo Alto Daily News, July 26, 2012. PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION - CASE NO.: 30- 2012 - 00579998 -CU-CR 434402 -16 In this case, by contrast, Anaheim merely argues that the stay would provide the Committee the 2 3 4 5 6 7 9 10 11 12 13 14 1.5 16 17 18 19 20 21 22 23 24 25 26 27 28 opportunity to merely study the issue and recommend to the City Council whether to make some change to the election system. Ifthe Committee decides to recommend the adoption of district -based elections that would comply with the C RA, and if the City Council adopts the recommendation., then the voters would decide whether to change the election system. If the voters approve the measure, Anaheim ambitiously asserts, the new election system could be implemented in time for the next regularly scheduled City Council election. However, in the likely event that one or more of these various contingencies in the City's proposal do not materialize, it would be virtually impossible to conduct a trial and implement remedies in advance of the November 2014 election. This is precisely the type of "justice delayed" that the City has sought since before the suit was filed, and now seeks to prolong by its motion. Moreover, minimal judicial resources are expended in the early states of litigation where the parties are engaged in the exchange of information through discovery largely without the involvement of the Court. Thus, permitting the case to continue while the Committee investigates the issue will not undermine judicial efficiency. It is also crucial that this litigation advance so that, in the event the Committee does not recommend that an appropriate plan be placed on the ballot, or the City Council does not place its recommendation on the ballot, or the ballot measure fails, the case will not have to start from the beginning with no discovery having taken place and with the November 2014 election rapidly approaching. Indeed, if for example, the Committee recommends a change to district -based elections and the City Council places a measure on the ballot, but the voters reject the measure in June 2014, it would be nearly impossible to litigate the case to trial and implement appropriate remedies in the five -month period between the June 2014 and November 2014 elections. Even if it realistically could be done, having to litigate the case under such an accelerated timeline would surely place a tremendous strain on the Court. 2. denial of a Stay Does Not PrORAjee tlrc City. The City has not even attempted to argue that it would be prejudiced if a stay is not issued. Of course, nothing prevents the Committee from continuing to study the various issues with which it has been tasked while this litigation proceeds. Thus, denying the stay would not interfere with the City's 9 PI -AINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION - CASE NO.: 34 -2012- 00579998 -CU-CR 434402 -16 im 4 5 6 7 political process. Indeed, the results of the Committee's investigation could assist the City in crafting a remedy if the Court finds that its current at- large system violates the CVRA. Father than argue that it will be prejudiced if this litigation continues, the City rests its motion for a stay on the premise that granting its requested relief is consistent with its "plenary authority:' to manage its affairs and with the notion that the legislative process should be permitted to devise an election system. As explained, inf a, in Sections III.B. and III.C., however, these arguments are improperly raised and contradicted by I case law. 3. A Stav Would Severely Prejudice Plaintiffs. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ]Plaintiffs will be severely prejudiced by the granting of a stay because the schedule established by Resolution No. 2012 -090 and incorporated into the City's stay request will likely preclude the implementation of any remedy before the November 2014 City Council elections. Indeed, the City's timeline will likely prevent Plaintiffs from securing an adjudication of the request for relief that they have sought and further delay the full inclusion of Latinos in Anaheim's political process should the Court uphold their claims. Anaheim asserts that a nine -month long stay of this litigation will not harm Plaintiffs because its plan could potentially result in the voluntary implementation of a new election system before the next City Council election in November 2014. This would be true, however, only if all of the following four contingencies materialize: (1) the Committee completes its work in accordance with the tentative schedule set out in the resolution (and the City Council does not extend that schedule), (2) the Committee recommends the adoption of a CVRA- compliant election system, (3) the City Council approves an appropriate measure adopting such a system to be placed on the ballot for voter approval on an election date prior to the November 2014 election, and (4) the City's voters approve the measure. The course of this lawsuit should not be derailed on the basis of so many uncertain future events. The City suggests that, even in the event that any of these contingencies does not take place, Plaintiffs will not be harmed because there will be ample time in which. to complete trial of this action before the November 2014 elections. Def.'s Mot. at 14. This is simply not true. Indeed, one possible outcome of the City's proposal is that the Committee does not recommend any changes to the election system. In this case, even if the lawsuit resumes immediately in July 2013 after a one -year delay from 10 PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION - CASE NO.: 30- 2012 - 00579998- CU-C:R 434402 -16 2 4 the time of its filing, the parties will have barely a year in which to fully litigate the case from discovery through trial and to implement any remedies before the November 2014 election. As difficult as that would be, the task would become impossible if Anaheim were to file a notice of appeal from any remedial order that the Court might enter, as is likely. See Dcf's Mot. at 3. The same is true if the City Council chooses not to place any recommended proposed changes on the ballot. Another possibility is that the Committee recommends changes to the election system and the 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City Council approves a measure for the ballot. Although there is no guarantee that any changes the Committee may recommend would adequately remedy the City's CVRA violations or that the voters would approve therm, the City will likely move for a further stay pending the outcome of the election in I June 2014. If a further stay were granted, there would certainly be insufficient time in which to fully litigate the case through trial and implement remedies before the November 2014 City Council elections. Notably, in its motion, the City neglects to mention that, under its proposal, the voters would not be presented with any potential ballot measure to change the election system until the regularly scheduled primary election in June 2014. See Baller Deel. Ex. G. Presumably the City failed . to explain the specifics of its proposed timeline because it would strain credulity for the City to argue that, if the voters were to reject an acceptable ballot measure, this case could be fully litigated and remedies could be implemented in the only five months between the June 2014 and November 2014 elections. Delaying this lawsuit will have serious consequences for Plaintiffs. Indeed, it will likely result in yet another election in which the Latino voters of Anaheim are denied full access to the political process in violation of the CVRA. see Reynolds v. Sims, 377 U.S. 533, 585 (1964) (recognizing the importance of the Court's role, when considering a stay in a voting rights case, in ensuring that invalid elections do not tape place). In contrast, rejecting the City's stay request would mean that for the next nine months the parties can engage in discovery (which Plaintiffs have already begun but which the 12 The likelihood that a majority of all the voters would vote to change the election system — in what is effectively the same type of at -large election that Plaintiffs contend denies Latinos the opportunity to prevail — is remote, as Escondido's experience illustrates. PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAFEIM'S MOTION TO STAY LITIGATION - CASE NO.: 30- 2012 - 0(1579998 -CU-CR 434402-16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City is delaying with this stay request), and be prepared to present the Court with evidence to support any dispositive motions and/or trial during 2013. B. The City's Absolute "PlenaEy A thus " Argument Is Not Properly Before the Court and Has Been Reiected By Every Court that Has Considered It. The City's /notion argues that the Court should stay the litigation in deference to its constitutional "plenary authority" to manage its municipal affairs. See Def.'s Mot. at 9 -10. If the City wanted that argument to be heard early in the litigation, it should have filed a demurrer to challenge the applicability of the CVRA to charter cities and sought dismissal of this action on that basis. Instead, the City answered this lawsuit on August 29, 2012, after Plaintiffs agreed to a one -month extension which afforded the City Council sufficient time to consider _ and reject --- a proposed ballot measure for a change to district elections. See Baller Deel. Ex. E. A stay motion is not the proper vehicle to raise the issue. Evers. if it were, the municipal affairs doctrine does not provide grounds for issuance of a stay pending completion of a lengthy and uncertain administrative process. In addition, the City's argument will fail when and if it is properly raised just like it has failed in every other court that has considered it. The City is simply incorrect that, as a charter city, it is free to conduct its elections in any way that it chooses, including by a method that operates to deprive a protected class of its ability to elect the candidates of its choice. Under the municipal affairs doctrine, despite a charter city's interest in local self-governance, it may not ignore state anti - discrimination laws such as the CVRA. A state statute life the CVRA supersedes a city charter where there is an actual conflict between the statute and the charter, and where the statute is narrowly tailored and reasonably related to an issue of statewide concern. See Johnson v. Bradley, 4 Cal. 4th 389, 399 (1992); State Bldg. and Constr. Trades Council v. City of Vista, 54 Cal. 4th 547, 552 {2012) ("state law is supreme with respect to matters of `statewide concern "') (citation omitted). The CVRA, which proscribes the use of at -large elections that dilute or abridge the voting rights of a protected class, is unquestionably a statute that addresses issues of "statewide concern" — as evidenced by the fact that the Legislature enacted it as a law of statewide application. Moreover, it is an anti - discrimination statute 13 If the City votes at any point to put district elections on the ballot, then that would be the proper time for the Court to reconsider the appropriateness of a stay. PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION - CASE NO.: 30- 2012- 00579998 -CU-CR 434402 -16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 i 23 24 25 26 27 28 designed to "implement the guarantees" of the equal protection and voter eligibility clauses of the California Constitution. Elec. Code § 14031. See also Sanchez v. City of Modesto, 145 Cal. App. 4th 660 (2006) (repeatedly describing the CVRA as an anti- discrimination statute). Finally, the CVRA is narrowly tailored to address the problem of racially polarized voting in at -large election system that impairs the rights of a protected class to elect candidates of its choice or influence the outcome of an I election. Given this clear case law, courts have uniformly rejected charter cities' arguments that their plenary powers under the California Constitution excuse therm from compliance with the CVRA. See Baller Decl. Ex. M, Gonzalez v, City of Compton (Los Angeles Super. Ct., No. BC450494, March 17, 2011), Notice of Ruling on Demurrer of Def. City of Compton to Pis.' Compl. (overruling the defendant's demurrer and finding that the CVRA addresses a matter of statewide concern and is narrowly tailored); Ex. N, Satorre v. San Mateo County (San Mateo Super. Ct., No. CIV504866, Oct. 3, 2011). The same result should be reached here, when and if the City properly presents its argument for adjudication. C. Sel2aration of Powers Does Not Just* A Stay. The City also urges the Court to issue a stay because, it contends, the design of its electoral system is properly consigned to the City's legislative process and, therefore, granting a stay would be consistent with the separation of powers doctrine. See Def.'s Mot. at 10. Again, this argument, which essentially contends that the legislative process may operate free of court intervention, should have been raised in a demurrer. But even if it had been properly raised, the argument would not justify the imposition of a stay. As explained in Section 1II.B, Plaintiffs do not disagree that municipalities are generally free to fashion their election systems the way they please; however, they may not do so in a planner that violates state law. There is no support for the City's proposition that a municipality may indefinitely shield itself from voting rights lawsuits by announcing its intention to initiate a legislative process to determine whether to voluntarily change its election procedure to one that does not violate the law. Moreover, this litigation does not prevent the political process from moving forward, nor is a stay necessary to allow the process to continue. Thus, separation of powers is not even implicated here. 13 PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITMS IN OPPOSITION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION -CASE NO.: 3 0 -20 12- 005 7999 8- C'U-CR 434402 -16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In support of its argument, the City cites cases holding that reapportionment is primarily a matter for the legislative branch. Of course, the present case does not involve reapportionment, which features the quintessentially legislative process of line drawing. Even if they were applicable here, the City's cases do not stand for the proposition that a reapportionment plan or election system may never be challenged or that a court may not impose a remedy for plans that violate the law. Instead, these cases are consistent with the general principle that where electoral districts or systems have been found to violate voting rights statutes, the defendant entity may be given the first opportunity to craft a remedy to cure the violation and submit it to the court for review. Because, as the City correctly notes, the design of election systems is generally consigned to the legislative process, courts may accord the entity's remedial plan deference at that stage. 5ee, e_g_, McGhee v. Granville County, 860 F2d 110, 115 (4th Cir. 1988) (citing White v. Weiser, 412 U.S. 783, 794 -95 (1973)); Cottier v. City of Martin, 445 F.3d 1113, 1123 (8th Cir. 2006). Notably, although courts generally defer to legislatively designed plans at the remedial stage, they still exercise oversight to ensure that voting rights violations are fully remedied and they may reject a defendant's proposal if it is inadequately curative. As the Eighth Circuit has explained in the analogous federal Noting Rights Act context, "[i]f the legislative body fails to respond or responds with a legally unacceptable remedy, `the responsibility falls on the District Court' to exercise its discretion in fashioning" a plan. McGhee, 860 F.2d at 115 (citations omitted). Moreover, this case is not at the remedial stage, and the responsibility to determine whether the general type of election plan (i.e., at- large) used by the City complies with the CVRA lies squarely within the judicial function. Thus, in this case, regardless of whether the City might eventually make a voluntary change to its election system, the Court should first determine whether its current system violates the CVRA and, if so, will need to ensure that the remedial plan is fully inclusive of Latino voters. The City has failed to demonstrate that an entirely uncertain, speculative exploratory project justifies a lengthy suspension of Plaintiffs' lawsuit, which seeks to safeguard the voting rights of the Latino residents of Anaheim. On the contrary, the history of this case before and after the filing of the 14 PLAIN'TIF1= S' MEMORANDUM OF POINTS AND AU"T"HORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAKEM'S MOTION TO STAY LITIGATION - CASE NO.: 30- 2012 - 00579998 -CU-CR 434402 -16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complaint shoves that the City's present motion is nothing more than a continuation of its ongoing effort to delay or avoid judicial review of the lawfulness of its at -large election system under the CVRA. For the foregoing reasons, the City's Motion to Stay should be DENIED. Dated: November )1, 2012 Respectfully submitted, umd� &&, MORRIS J. BAL , CA Bar No. 048928 mballer @gdblegal.com LAURA L. HO, CA Bar No. 173179 lho @gdblegal.com KATRINA L. EILAND keiland @gdblegal.com GOLDSTEIN, DEMCHAK, BALLER, BORDEN & DARDARIAN 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 (510) 763 -9800; (510) 835 -1417 (Fax) BELINDA ESCOBOSA HELZER, CA Bar No. 214178 bescobosahelzer@aclu- sc.org BARDIS VAKILI, CA Bar No. 247783 bvakili @aclu- sc.org ACLU Foundation of Southern California 2100 N Broadway, Suite 209 Santa Ana, CA 92706 (714) 450-3962; (714) 450-3969 (Fax) ROBERT RUBIN (BAR NO. 85084) robertrubinsf@gmail.com LAW OFFICE OF ROBERT RUBIN 315 Montgomery Street, 10th Floor San Francisco, CA 94104 (415) 434 -5118 Attorneys for Plaintiffs JOSE MORENO, AMIN DAVID, and CONSUELO GARCIA 15 PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF ANAHEIM'S MOTION TO STAY LITIGATION - CASL NO.: 30 -2012- 00579998 -CU•CR 434402 -16