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Special Election Backers Press 2-Track Strategy

December 30, 2017

 

Santa Barbara’s first big political issue of 2018 already has emerged, hours before Chronos orders global IT to run the annual calendar reboot. 

 

All that’s at stake is the rule of law, and the future of representative democracy.

 

On Dec. 5, amid the smoke and fury of a then-erupting, more existential news event, the outgoing city council voted 6-to-1 to fill Cathy Murillo’s District 3 seat by appointment, when she becomes mayor at the next council meeting, Jan. 9. 

 

Now, activists who brought district elections to the city quietly have organized an inside-outside strategy aimed at reversing that vote, and giving Westside voters the power to pick a successor for Cathy’s seat through a special election.

 

 

“Let the neighborhoods decide,” proclaims a widely circulated flyer, posted below, that announces a community meeting next week to build support for the special election. “Do not allow special interests to influence council members in this appointment process.”

 

Lock up the kids, Maude, it’s on.

 

 

A brief digression for pre-Thomas background. Readers who have had more pressing concerns the past few weeks may be forgiven for possessing only the haziest recollections of the critically important, appointment-special election issue (quick, personal Thomas debrief: the Horse Whisperer and co-conspirators safely evacuated The Herd, along with the 95-year old lady with two fractured vertebrae; the midwives had to wear headlamps because the power was out, but Felix Rain Macayan Guron also safely entered the world, at home, also on Dec. 5). 

 

No fears, you can find our Proustian-length recap and analysis of the issue here.

 

Plenty of free parking. 

 

 

 

State of play. Everyone back up to speed? Good, here’s a gaze at the current political landscape.

 

1) The key players. When the new council is sworn in on Jan. 9, three of the six members who voted to authorize an appointment process – Frank Hotchkiss, Bendy White and Mayor Helene Schneider – will be out of the door, and two new ones – Eric Friedman and Kristen Sneddon, will be seated.

 

With Cathy the only incumbent to have voted in favor of a special election, this means that the previous 6-to-1 vote will begin as a 3-to-1 vote, with Friedman and Sneddon, two beneficiaries of district elections, positioned potentially to vote with Murillo to block the appointment process. Then, all bets are off - more work for reporters! 

 

In an email, Kristen said the new council "should revisit the issue" and suggested she leans toward a special, depending on cost. Eric also mentioned cost - it would be $30K if consolidated with the regular June 2018 primary, $300,000 if not  - adding that, "The priority consideration for me is whether a special election or appointment ensures the residents of D3 are fully represented."

 

So there's that.

 

 

 

2) The inside play. On Dec. 26, retired Judge Frank Ochoa, representing original district election plaintiffs Jacqueline Inda And Sebastian Aldana, dispatched a closely-reasoned, 5,078 word letter, strongly making the case for a special election and for why the new council should junk City Attorney Ariel Calonne’s advice that council should appoint someone to fill the final two-years of mayor-elect Cathy’s seat, the path on which the outgoing council embarked on Dec. 5.

 

Although it was sent to everybody with a phone extension at City Hall, it has a crucial audience of two: Friedman and Sneddon.

 

Ochoa’s letter, appended below, is worth a read in full, but we would be remiss not to call special attention to the penultimate graf on page 6, a remarkable bit of legal wordsmithing from which he somehow emerges unscathed after astonishingly juggling three – 3, count ‘em, 3 – hoary clichés, and which no doubt will be taught in every law school in the land before long.

 

Plaintiffs assert that the council is in uncharted waters. Attempting to fit the process for filling the impending vacancy in District 3 of the Santa Barbara City Council into the processes set forth in…the Santa Barbara City Charter, which can only reasonably be applied to citywide elections and not district elections, is akin to the proverbial effort to fit the round peg into a square hole. It is reaching into a barrel which contains only apples in an effort to find an orange. It is a "fruitless" endeavor. It cannot be done.

 

You can’t make this stuff up.

 

 

The outside play. On Wednesday, Jan. 3, community activists, led by Inda, have organized a neighborhood meeting to inform District 3 voters about the so-far low-profile appointment-special election conflict and to build support for the latter. That will be held at 6:30 p.m. at Tony Becerra’s Koei Kan Karate Do, 1427 San Andres Street.

 

Come early, have dinner – El Zarape’s just a few steps awayl

 

 

 

 

Images: (Above) Saturday Evening Post New Year's cover, 1911; Baby Felix, born Dec. 5, 2017; Uplogix.com; Frank Ochoa; Jacqueline Inda.

(Below) Flyer for Jan. 3 community meeting about District 3 vacancy; Text of Judge Ochoa letter; Spanish-language flyer announcing Jan. 3 meeting.

TEXT OF JUDGE FRANK OCHOA (RET.) LETTER ON BEHALF OF SPECIAL ELECTION

 

December 26, 2017

Mayor Elect Cathy Murillo
Members of the Incoming City Council City of Santa Barbara
City Hall
735 Anacapa St.
Santa Barbara, CA 93101

Via: Hand Delivery and Email

 

Request to Conduct a Special Election Rather Than an Appointment in the 3rd City Council District

 

Dear Mayor Elect Murillo and Members ofthe Incoming City Council:

 

Process for the Impending Vacancy

 

I represent two of the plaintiffs in Banales v. City of Santa Barbara, Jacqueline Inda and Sebastian Aldana, Jr., (hereafter "plaintiffs"). This case, which was brought under the California Voting Rights Act, established district elections in the City of Santa Barbara. Although I am Of Counsel with the firm of Sanger Swysen & Dunkle, the firm is not involved in the representation of these clients.

 

Plaintiffs are aware that the City Council will not be meeting on December 26,2017, nor on January 2,2018. The next scheduled meeting of Council will occur on January 9, when the newly elected Council members and Mayor are sworn in to office. Because of that circumstance, this position statement is submitted to the incoming Mayor and Council members, with copies to all existing council members and the current Mayor.

 

On December 5,2017, the current council voted 6-1 to "clarify the district succession rules". Their action placed the City on track for an appointment process for the filling of the 3rd District seat. This council seat will become vacant upon Mayor-elect Murillo's assumption of the Office of Mayor of the City of Santa Barbara to which she was elected last month.

 

Members of the Council, during discussion, acknowledged that the process to be utilized will not be determined by them. That decision will be made by the new council when the vacancy occurs. Plaintiffs are requesting that the action taken on December 5 be abandoned and that Council enact an ordinance establishing a special election to fill said vacancy.

 

Reference will hereinafter be made to the "Council Agenda Report" (referred to as "Report") submitted by the City Administrator's Office/City Clerk's Office, City Attorney's Office, regarding the subject: "Consideration of Charter Revisions To Address District Elections, Council Member And Mayoral Succession, And Even-Year Election" originally prepared for the March 14, 2017 meeting of Council, updated on November 14, 2017, and considered at the December 5 council proceeding.

 

Plaintiffs are sincerely appreciative of the fact that the Santa Barbara City Attorney, Mr. Ariel Calonne, has been open and forthcoming in his communication with plaintiffs' counsel in regard to the concerns raised by plaintiffs over the past few weeks. We look forward to the opportunity to discuss issues related to Charter revision amendment proposals which would update the Charter to current, post-Banales circumstances, as well as addressing other issues related to the California Voting Rights Act and the soon to be in effect California Voter Participation Rights Act.

 

The grounds for the request for the abandonment of the appointment process and the implementation of a special election are based on the merits of the issue and the fact that that the current Mayor and members of Council based their votes on misinformation which unduly and inappropriately affected the results of the vote. In particular, the Mayor and Council were informed that the action being taken was unaffected by the Banales final judgment and was further required by provisions of the City of Santa Barbara Charter.

 

With due respect to the City Attorney and his office, plaintiffs suggest that the Report misstates the import of the final judgment in the Banales case. It also is based upon the application of Section 503 of the City Charter to the impending council vacancy, which is clearly inapplicable at present.

 

In addition, the Council vote was manifestly impacted by a staff estimate to the effect that conducting a special election to fill the 3rd District seat on council would cost $300,000.00. That estimate, given to Council by City Administrator, Mr. Paul Casey, was based on an incorrect conclusion that a special election would have to occur in April, 2018. The actual date for any special election for the impending vacancy in District 3 would be the June 5, 2018 statewide primary election. City staff estimated that the cost of a special election on that date would be $30,000.

 

This incorrect information was provided to Council during discussion at the time of its vote on December 5. There was no vacancy on Council at that time. There will be no vacancy until January 9, 2018, when Council Member Murillo is sworn in as Mayor. As will be discussed later, California Government Code Section 36512, which provides special election options for general law cities in circumstances such as those which will be before the new council, provides that a special election "shall be held on the next regularly established election date not less than 114 days from the call of the special election."

 

The trigger for any process to fill a vacancy in an elective office is "the commencement of the vacancy". California Government Code Sec. 36512(b), (the provisions of which will be discussed hereafter). If the new Council were to determine that a special election should be called on January 9, the first day of the vacancy, the election would have to occur after May 3, 2018, which is the 114th day after January 9. The next election day after May 3, 2018 is June 5, 2018.

 

City staff were presumably focused on April 3, 2018, which is a designated state special election date. But that date could not be 114 days after the call of a special election, since no election may be called until a vacancy exists. Council was, therefore, provided with incorrect information regarding the date at which any special election for the impending vacancy would occur, as well as the costs which would attend thereto, by a difference of ten-fold.

 

On December 7, pursuant to the Freedom Of Information Act, Plaintiffs requested from the City the information upon which the estimate given council on December 5th for the cost of a special election was based. That information was received by Plaintiffs on December 18. Those emails are attached to this letter as Exhibit "A." 

 

Further, plaintiffs assert that the issue of cost should, in any event, be a minor consideration to the Council regarding this issue, which fundamentally relates to bringing full democracy to fruition
within the City of Santa Barbara. As Mayor Elect Murillo stated in explaining her vote against the council action on December 5, "I do think the people in a district should pick their leader, their direct representative ...."

 

Banales Final Judgment

 

On April 6, 2015, the Superior Court of the State of California for the County of Santa Barbara entered a Final Judgment in the matter of Frank Banales, Sebastian Aldana, Jr., Jacqueline Inda, and Benjamin Cheverez vs. City of Santa Barbara, Case No. 1468167.

 

That lawsuit was based on alleged violations of the California Voting Rights Act which is deemed to be fundamental and transformative state legislation regarding local electoral processes. Pursuant to the Act, "An at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or abridgment of the rights of voters who are members of a protected class." (Section 14027).

 

The action of the City Council on December 5,2017, to commence the process of filling the impending vacancy by appointment by council instead of by special election violates terms of the final judgment in Bonates, as well as the California Voting Rights Act. 

 

The vacancy is for a seat which will be open as a result ofthe 3'd District's City Council member being elected to the office of Mayor in a citywide election. To ensure that the impending vacancy is filled in a manner which does not impair the ability of a protected class to elect a candidate of its choice, the City Council must provide for a special election.

 

District 3 is the largest majority-minority district in the City of Santa Barbara and its residents would not be allowed to elect a replacement to their soon-to-be open seat if Council's December 5 action is followed by the new council.

 

Also, pursuant to the terms of the Judgment in the Banales case, "City Council members are required to be residents of their respective electoral districts and to be nominated and elected by the residents of their respective electoral districts." (Page 1, 4th Paragraph, Exhibit 2, Page 3, Lines 23-25.)

 

There is no provision in the terms of the final judgment which allows for, authorizes, or countenances any form of appointment process for any vacancy on council. Filling this important vacancy by council appointment rather than a special election is inconsistent with the terms of the judgment entered in Banales as well as the California Voting Rights Act.

 

It could also expose the City to the risk of litigation in the form of an equitable relief action. Such an action could take the form of a Writ of Mandamus, a Writ of Prohibition; or an action Quo Warranto, which challenges the right of a person to hold a public office after that person assumes an office. Plaintiffs are not desirous of the pursuit of such a course of action and would prefer an amicable resolution to this dispute. It is their hope as interested and concerned citizens to work with the Mayor and Council, and the City Attorney and their respective staffs to assist in the creation of a fair and meaningful process.

 

Santa Barbara City Charter Section 503

 

The Report to Council notes that the current version of City Charter Section 503 has been in effect in its current form since 1982. Until 2013, the City conducted mayoral and council member elections on a citywide basis. Section 503 contained a reasonably workable methodology for the filling of a city council opening created by the election of a city council member to the position of Mayor during that time period.

 

In 2015, in accordance with the judgment entered in the Banales case, council members were elected by district. Council member Murillo, who had previously been elected in a citywide election, was elected as the District 3 council representative.

 

The Report to Council notes that lithe first paragraph of section 503 obviously did not anticipate district elections." This clearly understates the case.

 

Paragraph 1

 

As the Report states, the first paragraph of the section reads:

 

"Section 503. Vacancies.

A vacancy on the City Council, occurring as the result of the election of a member of the City Council to the office of Mayor, shall be filled by appointment by the City Council, within thirty (30) days of the election, of the unelected candidate who received the highest number of votes for election to the City Council at said election. Said person shall serve the remaining term of the City Councilmember who was elected to the office of Mayor." (Italics added) (bolded emphasis in original report to Council)

 

Thus, under Section 503, if a council member is elected to the post of Mayor, and, for example, 3 council members were elected from a field of 13 persons at that same election, the # 4 vote-getter (although not elected) would be appointed by the council to fill the vacated council seat of the person elected to be the Mayor. This could only occur in a citywide election.

 

The term "at said election" refers to that same election. The meaning of "said" is: "Before mentioned. This word is constantly used in contracts, pleadings, and other legal papers, with the same force as 'aforesaid"'. Black's Law Dictionary. It is a reference back to a thing which was already mentioned, in this case, the election at which the Council member was elevated to the position of Mayor.

 

The Report then states: "The district elections problem arises because there would never be a qualified unelected candidate remaining after a mayoral election." It goes on to depict how Section 503 would play out in two district election scenarios.

 

What follows is an alternative description of the meaning of those scenarios. For illustrative purposes, assume a City has 6 members elected by district-from districts A, B, C, D, E, and F; and a mayor who is elected citywide. Terms are for four years and elections are staggered such that there is an election for districts A, B, and C in the same year-Year 1.

 

The election for districts D, E, and F occur two years thereafter-in year 3. Further assume that the sitting Council member from District A decides to run for Mayor.

 

If the Mayoral election is in year I, the election would coincide with the end of council member from District A's current term. Sjhe would run for Mayor and there would be an open election among other candidates for the District A seat. As the City Attorney noted during the discussion on December 5, one cannot run for election to the post of Mayor and, at the same time, run for a council seat, for such is prohibited by state law. There would, therefore, never be an opening in District A created by the election of Councilmember A to the office of Mayor.

 

If the mayoral election occurs in year 3, and the councilmember from district A wins, there would be no qualified "candidate who received the highest number of votes for election to the City Council at said election" because there was no election in district A that year. As the City Attorney so aptly pointed out in the discussion on December 5, no other person on the ballot "qualifies" for appointment.

 

The Report therefore correctly opines that the first paragraph of Section 503 cannot apply to current district election circumstances. The District Election lawsuit, the terms of the final judgment, and the existing city election process resulting therefrom do not fit within the confines of the paragraph 1 of Section 503, such that it is rendered obsolete.

 

Paragraph 2

 

The Report turns to paragraph 2 of section 503, which states, in a bolded-for-highlighting- purposes sentence:

 

"In the event there is no unelected City Council candidate at the election at which a member of the City Council is elected Mayor, the City Council vacancy shall be filled as provided in this paragraph." Based on this sentence, the Report concludes, "In sum, under the current City Charter the Council must fill by appointment any vacancy created by an incumbent council member being elected mayor mid-term".

 

But the highlighted language cannot be pulled out and read in a vacuum.

 

The insurmountable problem is that a complete and proper reading of either paragraph contained within Section 503 cannot lead to the stated conclusion. In fact, a clear reading of the entirety of Section 503 can only lead to the conclusion that it has no impact on the council in the present circumstance because it is rendered obsolete by the governing principles of current elections.

 

Paragraph 1 of Section 503, which the Report correctly concludes cannot, in any practical sense, be made applicable to present circumstances, defines the Paragraph's application by stating "A vacancy on the City Council, occurring as the result of the election of a member of the City Council to the office of Mayor ..."

 

That is exactly what will occur when Mayor-Elect Murillo is sworn in as Mayor in January.

 

Paragraph 2 of Section 503, upon which the Report relies for its conclusion mandating that Council is bound to adopt an appointive process, defines the Paragraph's application by stating, "~ vacancy on the City Council, or in the Office of Mayor, from whatever cause arising other than expiration of term or the election of a member of the City Council to the Office of Mayor ...II "

 

Other than" precludes Paragraph 2 from applying to this issue. Paragraph 2, by it plain terms and clear language, does not apply to filling a council vacancy created by the election of a council member to the position of Mayor. (Bolding, underlining and larger font used for emphasis)

 

Paragraph 1, which on its face applies to this impending vacancy, cannot be applied because there can never be a person who meets the qualifications set forth in the paragraph. And Paragraph 2 cannot be utilized because, on its face, and by its plain language, it does not apply to this impending vacancy. Section 503 of the Santa Barbara City Charter, in its entirety. has been nullified and rendered obsolete by the final judgment in the Banales litigation and cannot be utilized as authority to dictate an appointive process.

 

Section 503 provides no answer

 

It is impossible for Council to utilize Section 503 for an additional reason. Paragraph 1, which,
on its face would appear to apply to this conundrum requires that a vacancy such as that which will
occur on January 9 "shall be filled by appointment by the City Council, within 30 days of the election ...." which created "(a) vacancy on the City Council."

 

The election which will create a vacancy here occurred on November 7,2017. More than 30 days have already passed. The Council did not, and could not have filled the vacancy within the time frame contained in the Charter provision because no vacancy exists, even to this date. Plaintiffs point this out merely to demonstrate that Section 503 is clearly unworkable, obsolete, and abrogated by terms of the final judgment in Banales, and the resulting district electoral process.

 

Additionally, if the Charter binds the Council regarding elections, what of the language of
existing Charter Section 500 which requires that elective officers of the City "be elected from the City at large"?

 

The final judgment in the Banales litigation was signed by Judge Donna D. Geck on April 6, 2015. It requires that the City utilize a district election process, and the City has gone through the public process of creating city council districts. It has utilized those districts in elections in 2015 and 2017. And yet the Charter provision which governs whether Council elections are "at large" or "by district" has yet to be brought into consonance with that court judgment.

 

It is clearly the case that the City Charter, in certain provisions related to electoral process is null and void.

 

Plaintiffs assert that the council is in uncharted waters. Attempting to fit the process for filling the impending vacancy in District 3 of the Santa Barbara City Council into the processes set forth in Section 503 of the Santa Barbara City Charter, which can only reasonably be applied to citywide elections and not district elections, is akin to the proverbial effort to fit the round peg into a square hole. It is reaching into a barrel which contains only apples in an effort to find an orange. It is a "fruitless" endeavor. It cannot be done. Council should look to other non-binding, but persuasive alternatives to fashion a unique solution to a one of a kind problem.

 

Plaintiffs assert that the council should immediately call for a special election to fill the vacancy created on January 9. Until a revision to Section 503 is effected, Council should deem Section 503 to have been abrogated by the terms of the judgment in the district election lawsuit. This would leave Council free to fashion a fair and democratic methodology for filling the impending vacancy in District 3 by utilizing state statutes as non-binding guideposts in this unique situation. These statutes can be deemed persuasive in nature since they do not bind a Charter city, but have been followed for decades by all general law cities in California. Approximately 80% of all cities in California are general law cities.

 

And the City Charter, by its terms, allows for the use of state statutory electoral processes. The Charter of the City of Santa Barbara provides in Section 1302. Procedure for Holding Elections:

 

"All elections shall be held in accordance with the provisions of the Elections Code ofthe State of California, as the same now exists or hereafter may be amended, for the holding of Municipal Elections so far as the same are not in conflict with this Charter. The City Council may by ordinance supplement the provisions of said Elections code insofar as the same are not in conflict therewith."

 

Because Charter Section 503 has been rendered null and void by the Banales final judgment and the City's move to district elections, it does not present a conflict with the Election Code provisions discussed herein. There is no impediment to the utilization of these state statutes.

 

The Council, therefore, has the power to utilize, or to be guided by state elections statutes in developing a process to fill the impending vacancy in the 3rd District. The Report from the City Attorney itself states that "(tjhe City Council has a number of options for addressing this issue. First, under state law the City Council may fill a council vacancy with any qualified person within 60 days by appointment or by calling a special election." (Citing Gov. Coder Sec. 36512; Elec. Coder Sec. 10229.) (emphasis added)

 

The issue regarding the process to be utilized by Council to fill the vacancy which occurs in District 3 will be before the new Council as of January 9. Plaintiffs assert that Council should follow one of the various provisions of California Government Code Sec. 36512 which allow for a special election process, because to do so comports with Banales and the California Voting Rights Act and fully implements principles of democracy.

 

Special Election Options

 

Section 36512 presents a number of different options for Council to consider.

 

Option #1:

 

Under subsection (b) "lf a vacancy occurs in an elective office provided for in this chapter, the council shall within 60 days from the commencement of the vacancy, either fill the vacancy by appointment or call a special election to fill the vacancy". The vacancy will occur on January 9, 2018. 60 days from the commencement of that vacancy is March 9, 2018. Council has until that date to either fill the vacancy by appointment or call a special election. Plaintiffs assert that Council must, on the basis of the authorities presented, call for a special election.

 

Pursuant to (b) (I), "(i)f council calls a special election, the special election shall be held on the next regularly established election date not less than 114 days from the call of the special election. As long as a special election is called by the February 6, 2018, regular council meeting, or within approximately 3 days thereafter, lithe next regularly scheduled election date not less than 114 days from the call of the special election" is June 5, 2018.

 

Option #2 (with subparts):

 

Under subsection (c): "a city may enact an ordinance that does any ofthe following:"

 

(1) It may require that a