Powered by Max Banner Ads
One of our irregulars here sent me the complaint in the case brought by Max Madrid (generally presumed to be acting as a catspaw for Councilwoman Claudia Alvarez) to force Santa Ana’s City Clerk to issue nomination papers to Alvarez. It was interesting reading. It reinforced my view that Alvarez’s — I mean Madrid’s, of course — case is not absurd on its merits. Cases like this (which technically deal with retroactive application of the law) win more often than one might think — especially given the requirement to resolve ambiguities in the law in the favor of the person seeking to exercise their right. I think that it will likely fail regardless, though, because popular intuition about why it seems to be fishy is pretty much dead on.
(By the way, I’m just helping to educate the public on legal issues here; this is not intended as specific legal advice for any current or potential party or as an invitation to create an attorney-client relationship.)
The problem with the 2008 “Measure D” is that it can arguably be construed in one of two ways: “Councilmembers can only serve a total of three terms” (in which case Alvarez can’t run for re-election) or “From this point forward, Councilmembers can only serve a total of three terms.” In this respect, the ballot measure was not carefully drafted. (On the other hand, if Alvarez, on whose behalf Measure D was drafted, had intended to take this action all along, I supposed we might say that it was very carefully drafted.)
In addition to reviewing case law, a judge trying to decide whether to grant an order to allow Alvarez to take out papers on the merits would probably want to look at the statements for and against the proposition in any Voter Information Guide sent to voters, at campaign literature by proponents (and maybe opponents), etc., to determine what voters thought they were doing when they passed this initiative.
Of course, a judge may not reach the merits at all — and may just toss the case based on the principle of “laches” (pronounced “latches),” which roughly translates to “you snooze, you lose” or “why the heck did you wait to bring up this case until now?”
For those who look at the lawsuit and say “OMG, OMG, the court has to decide this by next Monday, how are they ever going to do it?” — you’re intuition is pretty much right that this is not how things are supposed to work. Instead of the more well-known suit for monetary damages, this is a suit for what is called “equitable relief,” where a judge essentially uses his or her powers to determine what is fair. In most equitable relief, no money changes hands; it involves things like temporary restraining orders and injunctions and orders to act.
With a case like this, one is not supposed to “sleep on one’s rights” — especially not if by doing so one creates an unnecessary sense of urgency for the court. The City Clerk’s decision not to allow Alvarez to take out papers occurred in April; it is highly doubtful that Madrid was not aware of it at around the same time that Alvarez was (i.e., pretty much right away.) Sure, Madrid needed some time to find an attorney and have them put together a motion — but certainly not this much time. (It’s a good-looking motion, but not one that screams out “this took us two months to create!”)
If Madrid deliberately waited until a week before filing opens in order to create an unnecessary sense of urgency, which would among other things would prevent the court from having the time to review the historical facts and determine probable voter intent in approving Measure D, the defense of laches would suggest that the judge would not even have to reach the merits. TROs and such are not a significant part of my practice, but if I correctly remember the relevant civil procedure I would think that (after doing the necessary paperwork) someone could simply stroll into court with a request to intervene in the case and ask the judge to boot the case on the basis of laches without reaching the merits.
I honestly have no idea whether anyone is currently inclined to do this, but there are a lot of smart lawyers in Santa Ana. A fair number of them seem not to want to see Claudia Alvarez be allowed to run for a fourth term, so my guess is that any day now someone will try to invoke laches to lock her door to reelection. But, as I’ve said, this isn’t a significant part of my practice; maybe other attorneys out there will want to present a different view. Anyone?