Ed Sachs, Wendy Bucknum & Greg Raths Guilty of “Usurping” Office, Ordered Removed from Mission Viejo City Council
On August 31, 2022, Judge Walter Schwarm of the Orange County Superior Court ruled that Ed Sachs, Wendy Bucknum, and Greg Raths (the Defendants named in People of the State of California v. Sachs, Raths & Bucknum, Case No. 30-2022-01262431-CU-JR-CJC) illegally remained in office after their two-year elected terms expired in December 2020. Each was ordered to be removed from office effective August 31st at 5:00 p.m., pending a 30-day stay to allow the Defendants to apply for emergency “writ” relief from the Court of Appeal. (A copy of the Judgment attaching the August 31st Order is available from the MV Guardian Library here. Note: Some PDF files linked here exceed 20MB.)
Case Recap
In November 2018, the City of Mission Viejo held an “at large” election for three seats on its city council, and told potential candidates and the public that the three seats would have a two-year term. Ed Sachs, Wendy Bucknum, and Greg Raths were the top three vote winners, and were sworn into office in December 2018. Their terms of office therefore expired two years later–in December 2020. But the Mission Viejo City Council (with the three Defendants constituting a majority) decided not to put those three seats on the ballot in November 2020. The Court ruled that this was illegal, and that the City could not simply extend the terms of those council members by refusing to hold an election. Since they had no lawful right to remain in office after December 2020, the Court ordered that the must be removed from office.
The Court rejected each of the council members’ excuses:
The Defendants claimed that the 2018 election wasn’t really for two-years because the two-year only applied if the City changed to a new voting scheme called “cumulative voting,” and so their terms became four-year terms when the City failed to adopt cumulative voting. The Court rejected that argument.
Here, the court finds that the prescribed terms for Defendants’ City Council seats were for two years based on the Stipulated Judgment (PRJN, Exhibit A), Notice of Election (PRJN, Exhibit C), Resolution 18-52 (PRJN, Exhibit E), and the Amended Stipulated Judgment (PRJN, Exhibit G). The Stipulated Judgment (PRJN, Exhibit A) and Amended Stipulated Judgment (PRJN, Exhibit G) did not extend those terms because their purpose was to address the CVRA violation in OCSC Case No. 30-2018-00981588. Under Government Code section 36503, Defendants’ terms of office expired on or about December 11, 2020. Therefore, the court finds that Defendant—Ed Sachs, Defendant—Wendy Bucknam, and Defendant Greg Raths are not lawfully holding their offices.
8/31/2022 Minute Order, p. 6.
The Defendants claimed that the Court approved their term extension based on a filing in another case. The Court rejected that argument, noting that the City never made any explicit request to extend the Defendants' terms of office.
Here, by approving the Stipulated Judgment (PRJN, Exhibit A) and the Amended Stipulated Judgment (PRJN, Exhibit G) in the SVREP case in the form proposed by the parties, this court did not approve extension of Defendants’ prescribed two-year terms. The Stipulated Judgment (PRJN, Exhibit A) and the Amended Stipulated Judgment (PRJN, Exhibit G) do not expressly state Defendants’ terms would be extended beyond the prescribed two-year terms for which they were elected.
8/31/2022 Minute Order, p. 5.
And, contrary to their arguments, the City never told the Court that voters had elected the Defendants to a two-year term of office when Defendants claim to have asked the Court to extend their terms.
Mr. Curley’s [the City Attorney's] declaration did not state that Defendants’ two-year terms would be extended if the Amended Stipulated Judgment was entered. Rather, the ex parte application and the Amended Stipulated Judgment reflected the intent of the parties to give the City more time to attempt to implement cumulative voting as a remedy for “. . . inadvertently dilut[ing] the vote of a minority population.” (Trial Brief; 4:21-22.) 4:21-22.)
8/31/2022 Minute Order, p. 5.
The Court also stated that if the City attempted to insert a term extension into a settlement agreement, that would be void since it would have been illegal.
Even assuming that the Stipulated Judgment and the Amended Stipulated Judgment could be interpreted to extend Defendants’ prescribed two-year terms to four years, Defendants have not shown that such an extension would be legal. Timney v. Lin (2003) 106 Cal.App.4th 1121, 1129 (Timney) states, “Moreover, our Supreme Court and other California courts have rejected the notion that a settlement judge may properly act to ‘approve’ an illegal contract and thereby shield it from invalidation. [Citation.] We have found no case, and the parties have cited none, holding an illegal forfeiture provision may be enforced by the courts, even as part of a settlement agreement.” The Stipulated Judgment and the Amended Stipulated Judgment were not illegal under Timney because their purpose was to address the CVRA violation.
8/31/2022 Minute Order, p. 5.
The Court ordered that each Defendant be removed from office, but allowed them to seek an emergency "writ" appeal.
Each was ordered removed from office on August 31st at 5:00 p.m., although the ruling was stayed for 30 days to allow the defendants to seek an emergency appeal via a “writ” procedure.
The Defendants, however, never sought that emergency relief. Instead, they filed papers trying to further delay being held accountable for their actions–until after the November 2022 election–effectively asking the Court of Appeal to prevent them from ever being held accountable.
Taxpayers Are Paying for the Council Members' Personal Defense.
Having a majority of the city council thrown off the dais is not only embarrassing to Mission Viejo, it comes at substantial cost to Mission Viejo taxpayers. Although this lawsuit named each council member individually (as required in a quo warranto action), the City "agreed" to pay for their paid for defense; each is represented by William Curley, the City Attorney, and his outside law firm, Harper & Burns LLP, which bills the City on an hourly basis. The "decision" to pay for the Defendants' legal troubles, however, does not appear to be reflected in any public agenda item or meeting minutes.
Court records also indicate that while the City was not named as a Defendant, it inserted itself into the lawsuit as an "intervenor," also represented by the City Attorney and his outside law firm. This dual role--representing the individuals' and their personal interests, while also representing the City and the interests of its citizens--raises a serious conflict of interest questions.
After their loss, Defendants and City brought on an additional legal team, consisting of three more lawyers from outside law firm Ring & Bender LLP.
How Much Has This Cost Mission Viejo Taxpayers?
The public may never know how much the City has spent covering for the Defendants. The City has consistently refused to provide copies of its legal bills in response to public records act requests, citing attorney-client privilege. In addition, the City has not separately tracked the legal fees across related cases, co-mingling them together in financial reports provided in response to public records act requests. And the records that is has provided are incomplete. For example, in public records act responses obtained by the MV Guardian, for the only four-month period from April 2022-July 2022, so far the City has paid more than $96,000 in legal fees for this case and the related writ of mandate case. But these cannot be complete, as this case started at least as early as January 2022, when an application was submitted to the Attorney General's office by a concerned citizen, and significant case activity occurred after July 2022.
What is a “quo warranto” lawsuit and how did this case come about?
The California Attorney General’s website explains that a quo warranto lawsuit is special proceeding to challenge an official's claim to office, and the only way to remove an illegal officeholder from office. Given the extreme nature and remedy, the lawsuit must be brought by or on behalf of the State of California, and the Attorney General’s office must approve of any such challenge brought by a private citizen:
“The remedy of quo warranto is vested in the People, and not in any private individual or group, because the question of who has the right to hold a public office is a matter of public concern, not a private dispute. The requirement of obtaining approval also serves the important purpose of protecting public officers from frivolous challenges.”
California Attorney General's Office, Legal Opinions of the Attorney General - Quo Warranto - Right to Public Office, https://oag.ca.gov/opinions/quo-warranto
In January 2022, Mission Viejo resident Michael Schlesinger submitted an application to the Attorney General’s office, alleging that council members Sachs, Bucknum, and Raths remained in office illegally. After providing the Defendants an opportunity to respond to the application, on May 26, 2022, the Attorney General Office’s Opinions Unit issued Opinion No. 22-101, authorizing the lawsuit in a 12-page opinion. The People v. Sachs, Raths & Bucknum lawsuit was filed in Orange County Superior Court that same day.
Why were the 2018 elections held for two-year terms?
The two-year terms of office at issue in this case stem from the City Council’s decision in 2018 to hold elections for two-year terms for the City Council in order to settle a case brought against the City for allegedly violating the California Voting Rights Act (“CVRA”), titled Southwest Voter Registration & Education Project v. City of Mission Viejo (referred to as "SWVREP v. MV" in other court documents). (MV Guardian coverage on that case to follow). That case was also scheduled to be heard by Judge Schwarm, but was quickly settled by the Plaintiff in that case and the City, with the City agreeing in a closed session to pay $180,000 in attorneys’ fees to the plaintiff’s counsel, and the City promising to transition to a new voting scheme called "cumulative voting." The City never implemented cumulative voting because (as the City was aware from the start) California law did not recognize that form of voting.
Didn't the City claim that the 2018 elections were really for four-year terms?
When the City entered into the Stipulated Judgment in the SWVREP v. MV, it agreed that the 2018 elections would be for two-year terms.
All of the City's actions after that point consistently informed potential candidates and the public that the election was for two-year terms on the city council. These facts and evidence were laid out in court briefing and exhibits that were cited in the Court's August 31st ruling.
For example, a July 27, 2018 press release stated: "Mission Viejo City Council Members voted into office this November will serve for two years rather than the traditional four-year terms. The City will work with the community on voter education in the coming years."
The City’s July 30, 2018 Notice of Election stated:
In the November 2018 election, Ed Sachs, Wendy Bucknum, and Greg Raths were the top three vote getters, and were declared the winners of those three council seats. and were sworn into their respective two-year terms of office in December 2018. The two-year terms of office were clearly stated in Resolution No. 18-52, unanimously adopted by all council members and signed by then-mayor Ed Sachs.
The City pivoted to a "four year" claim as the 2020 elections approached.
According to documents filed in the Court proceeding, the council members’ profiles on the City website also indicated that their “Term expires November 2020.” (Filed in Court as Exhibit U).
As the 2020 elections approached, the City had not implemented cumulative voting, and the City Council unilaterally decided that the incumbent members would simply stay in office without an election. Instead, the City Council only placed the other two seats (those held by Trish Kelley and Brian Goodell) on the ballot that year, for two-year terms, as reflected in Resolution 20-25 adopted unanimously by the City Council on June 23, 2020. (Filed in Court as Exhibit G).
But on June 25, 2020, the Defendants simply changed their profiles to instead state that their terms expired in 2022, as revealed in response to a public records request filed with the Court. (Filed in Court as Exhibit V.)
Notably, the City called the 2020 elections for only two seats, and the Defendants updated their web profiles, changing their own two-year terms of office (expiring in November 2020) into four-year terms (expiring in November 2022), in June 2020--weeks before the Court in SWVREP v. MV even considered the "amendment" that supposedly extended their terms.
Did the Defendants hold a crystal ball and see the "extension" in the future? Or did the City intentionally submit a vague and ambiguous "amendment" to the Court in 2020 so that they could later claim that their actions were "approved" by the Court when questioned by the public?
Either way, this case is a reminder that the public must remain vigilant and hold their elected officials accountable.