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Judge orders Mission Viejo council seats challenged in lawsuit to be on November ballot

Mission Viejo leaders need to start planning to include two more City Council seats on November’s ballot, a judge ordered Tuesday in a lawsuit brought by a resident challenging terms in office.

The council seats currently held by Trish Kelley and Brian Goodell had been scheduled for the 2024 general election, which would have made for four-year terms. But Orange County Superior Court Judge Walter Schwarm, in granting a preliminary injunction Tuesday, said voters were told in 2020 the two positions would serve a fixed two-year term so the city could implement a new voting method – cumulative voting – and though that change had to be scrapped, he was “ordering a general municipal election for those two disputed seats.”

The decision means the city will need to plan for all five City Council seats to be on the ballot in November.

The city’s attempt to implement cumulative voting came after it was sued in 2018 by a voting rights group that argued Mission Viejo’s longtime system of at-large voting, like many other municipalities across the state, was racially polarizing. When the city couldn’t get cumulative voting up and running because of pushback from the state, it was decided a district-based voting system would be implemented instead, and city officials planned to revert to the election terms laid out in municipal code, which is four years, city attorney Bill Curley has said.

Schwarm said he will still hear the city’s arguments for extending the two terms before issuing a final judgement. A court date had already been scheduled for September.

Attorneys for resident Michael Schlesinger filed for the preliminary injunction because they said that hearing was too close to the November elections and too late for people to mount a campaign for the seats. The filing period to run for office is July 18 to Aug. 12 in Orange County.

Attorney Aaron Hand, one of the lawyers representing Schlesinger, said the judge’s decision is a good indication a second lawsuit filed by Schlesinger will be successful. Schlesinger is seeking to remove from office the other three City Council members, Wendy Bucknum, Greg Raths and Ed Sachs, who were elected to two-year terms in 2018 while the city was first working to get cumulative voting set up and stayed in office beyond 2020 because officials needed more time.

Schwarm’s Tuesday decision “touched directly” on the issues of that lawsuit as well, which argues “they are not authorized to sit because they were not reelected,” Hand said.

Curley disagreed with that interpretation, saying he sees the judge’s decision to wait for more discussion before finalizing his ruling as leaving open the possibility that Schwarm may change his thinking on the case.

But for now, city leaders will work quickly to inform residents about the court’s order that now directs two additional seats to be placed on the ballot in November, and provide details on how to run, Curley said.

Because the city would need to stagger the election years for the seats after the November election, attorneys for Schlesinger requested that two of the seats this year be voted in for two-year terms and the remaining three for four-year terms. Curley at Tuesday’s hearing said the proposed two-year terms would violate municipal code, and posited four-year and six-year terms for the seats.

At a hearing on Wednesday, June 29, Schlesinger’s attorneys will ask the judge to prevent the city from allowing any council seat to serve a term longer than four years.

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