ACLU & Anaheim: Late-ish Mar. 17 Trial Date Set; Judge Releases the Discovery Kraken

Amin David tells the cameras that he is happy to get his day in court. Co-plaintiffs Jose Moreno (over his shoulder) and Consuelo Garcia (in white) are joined by ACLU attorneys Robert Reid (next to Amin) and Bardis Vakili (behind Garcia), and the woman to his left (whose name, sadly, I did not get.)  The train, it is a-rollin’.

1. Three major victories for the Plaintiffs

It was a mixed day in Court for the ACLU-backed plaintiffs in the case of Moreno v. City of Anaheim, who were supported in the courtroom by dozens of members from the community, but on balance it was more good than bad.  (I should emphasize that the points below are my own interpretations of how things went, not those of Plaintiffs or their attorneys.)  Defendants won on a lot of little issues, but Plaintiffs got favorable rulings on the three biggest ones, which I’ll present in reverse upcoming chronological order:

1. The date for a ten-day trial has been set for March 17, 2014, with a decision expected by the end of March.
2. Before that, on October 1, Judge Miller will reserve a whole morning to decide several motions in the case, including:(a) a motion for dismissal based on the inadequacy of the pleadings, which state the Plaintiff’s case, and which need to be revised in light of the city’s “reform”;(b) another motion for dismissal based on its being too soon to decide whether Anaheim’s new election system fails to remedy any past illegality);(c) a judgment to reinstate the stay on proceeding with trial matters — see just below); and(d) a motion for for bifurcation (making the judge hear evidence only on whether the Plaintiffs can make their case, and decide whether to dismiss their hearing, before getting to questions including appropriate remedies.)

   Judge Miller initially set this for the same day that he would hear over a dozen motions from other cases — but he soon decided that this one would need its own dedicated day.   Good call.  Defendants would probably not consider this a Plaintiff victory; I’ll explain below why I think that it is.  Here’s a preview: if Judge Miller rules on motions as I expect he will on October 1, meaning that he rejects the notion that Plaintiffs don’t have a case, etc., then the path from there to the slaughterhouse for the Defendants is obvious and steep.  Only an idiot, or someone with something huge to hide and no qualms about using public funds to hide it, would continue to contest the case.  That’s a whole year, pre-election, of Team Pringle facing a “drip, drip, drip” of questions about whyyyyy they let this go on.  And if they do go on, they have a nasty surprise awaiting them.

3. And before that, because Judge Miller lifted the “stay” on proceeding with trial procedure, a process called “discovery” will begin — pretty much immediately.  (And by that I mean that I would not be surprised if some interrogatories — formal questions — and demands for production were served on the Defendant before when I will hit “publish” just a few hours after the hearing ended.)If you don’t know what that means, it means that a whole lot of grilling and drilling of witnesses on both sides will take place –potentially including day-long depositions of Kris Murray, Gail Eastman, Lucille Kring, Jordan Brandman, Tom Tait, previous Mayor and current puppeteer Curt Pringle, the members of the Citizens Advisory Committee, the members of the Charter Review Committee the previous and current City Managers, and maybe even the previous and current City Attorneys. (That would be regarding non-confidential communications that were made in public session.  Michael Houston might not divulge much, but maybe Christina Talley might have something to say about comments she has made during meetings!)It’s not clear that the City would be able to depose Pringle, as he’s not (quite) a city employee — more like the reverse is true — but the Plaintiff’s may be able to make a case for it.  Former city employees can’t be forced by the Defendant to testify — but in most cases they may choose to respond to a subpoena on their own volition.

Now here’s why those people named above (especially the trio of Councilwomen) ought to be highly concerned: when you depose someone, you can ask them pretty much anything you want about relevant matters of which they would have personal knowledge.  The deponent’s attorney may object, but the Judge may order compliance.  The deponent’s attorney may then try to strike a response — but this is expensive, cumbersome, risky, and may tend to alienate the Judge.  If they have really been overconfident rather than faking it, they’re about to discover that their actions are going to come at a significant personal cost.

How big of a cost?  Try this on for size: because of the dispute of whether Anaheim is truly doing a sufficient job of representing the poorer areas of the community, we could see questions – to be answered under oath – about the behind-the-scenes circumstances regarding the GardenWalk Giveaway and various transportation-related matters that I suspect Kris Murray is referring to when she talks about supporting the central parts of the city.  (I’d expect the ACLU attorneys to ask her about that.  Honestly, I would probably pay them money to be allowed to depose Kris Murray.)

It’s not the humiliation of being given the “Hulk tosses around Loki” treatment for most of a day that is the real problem; it’s that Murray’s answers (and Eastman’s, etc.) can then become part of the public record.  (It would depend on how much of them the ACLU would attach to exhibits on motions.  My guess is: lots.)

What’s that going to do to someone’s political career?  Well, that may depend on how much and how aggressively they fib, not only in the deposition but in public statements before it.  So … guess who’s in trouble?

2. And some victories for the Defendants

The Defendants had their own victories as well today, in the service of their apparent litigation strategy of Delay, Confuse, and Delay Some More.

Lead Counsel for the city, Marguerite Leoni of Nielsen Merksamer Parrinello Gross & Leoni in San Rafael, did most of the talking today.  She was certainly an immense improvement on Kris Murray — and frankly, given the possibility that she has to listen to recordings of everything Murray says about matters related to this case, she may well be earning her hefty payment from the taxpayers — but her argument left a bit to be desired.  See if you can spot the weakness.

Leoni argued that because the city had adopted the “from district” ordinance (what I call “candidate residency”), all litigation should halt while we all wait and see whether this new ordinance solves the problem.  The fact that there’s no way that this ordinance could solve the problem — under the city’s plan, a Council representative from a given part of the city still have to appeal to the most well-funded and powerful parts of the city, because they can remove that person from office and the voters of the person’s own district cannot.

(I’m trying to find a perfect historical example of this; my attempt for the day is Thomas Gage, Colonial Governor of Massachusetts at the start of the Revolutionary War.  His ability to remain in power did not depend on the political support of the people around him in Boston, but of the political support of the heavy hitters back home in London.)

At any rate, if the same majority of whiter and wealthier voters from the city can elect every damned member of the City Council by a similar majority vote, Anaheim’s new system cannot work even in theory to grant self-determination to voters.  We don’t have to wait to see it in action; we already know that the necessary part is missing.  But there’s an even bigger flaw: can you see it?

Here we go: why would the results of 2014 be considered decisive is answering this question?

First of all, let’s bear in mind that there would be no citywide votes on candidates in June 2014 as well, so that’s not going to tell us anything.  We wouldn’t get any data at all about whether the representatives for the new districts would be the ones chosen by the people in those districts, or otherwise, until after the November 2014 general election.  And then, even if we get that data, that would only be one data point.  (Actually, more likely four correlated data points, but in any event not much.)  In 2015, would the City say “sorry, we still don’t have enough data”?  Sure it would!  Why not?  The Latino proportion of the vote is still growing, so let’s wait until 2017.  And then until 2019.  And then until 2021.

It would take us a long time — an unreasonably long time — to be able to say that we had collected enough information to evaluate the new program — and even then, a blip (as we might expect in 2016, for example) could easily be misleading.  Social science strives not to make broad inferences from a small number of data points; that was one of the problems with the Demographer’s Report.

Leoni did suffer from some of the same problems as Murray, even if her disingenuousness was less transparent.  Consider:

• she actually argued that the districting system that Anaheim was implementing is “recognized” in California Government Code § 34871.  And, indeed, it is: it is “recognized” as a variant of an “at-large” voting system.  That is, it is not a “district” voting system.  Being “recognized” means “nothing.”
  
• she said that 3 of 4, or 5 of 6, districts would come from outside of Anaheim Hills.  OK, maybe — but that is not true of the city’s voters.  As has been explained time and again, Anaheim Hills is chock full of eligible voters and most of the rest of the city is far less so — and that’s before we talk about how high propensity the voters are and what hurdles help keep low-propensity voters away from the polls.
• she said that voters would continue to vote for Council members every two years rather than every four years, rather than having “no say” in off-years.  That’s true so long as you don’t believe that the Mayor is a member of the Council, but in that case you’re wrong.
• She cited at least one court case stating that at-large systems are not constitutional per se.  That too is true.  The Plaintiffs are not arguing that the at-large system is unconstitutional per se.  They are arguing that it has been found unconstitutional under specific circumstances that apply to Anaheim — racially polarized voting that disempowers minorities.  That’s what they have to prove.

I’ll stop there.  (She did not.)

The main victory that the Defendants won was delaying the start of the lawsuit from mid-February or even the end of February to St. Patrick’s Day, March 17.  Why does this matter?  Because the primary election, in which this faces its vote, is coming up on June 3, 2014.  Would a decision on March 31, 2014 allow appropriate ballots to be printed in time for inclusion on the primary ballot?  I tend to doubt it.

This may make it harder for Judge Miller to show “judicial restraint” by putting the matter before voters — and it will certainly delay preparation of campaign material for the elections.  (Remember, those have to be ready in time for early voting — including absentee ballots for overseas military.)  Judge Miller may face the choice of putting in a placeholder ballot-measure prior to trial — or of simply imposing a new system on the city.  (If he’s doing that, I’d like eight districts, please!)

3. Coming soon — an initiative petition?

Here’s where I think that that is going: I think that Los Amigos and its amigos are going to realize before long that the late timing of the trial means they they’re really going to have to go ahead with an initiative campaign for a charter amendment to establish a voter-residency requirement.  That’s the only way to ensure that such a measure is on the ballot.  On the bright side, the citizens of western and central Anaheim are increasingly engaged — and the chance to do such a petition drive would be a great way of organizing them not only for the June primary but for the November election.  So, once again, the city’s clever scheme may leave the Pringlish worse off than otherwise.  (Do you need a lot of money to do a petition drive?  No, nott if you have a whole lot of volunteers.  I can imagine cooperation between Democrats, Greens, Labor, and many Reform Republicans in getting such a drive accomplished.)

On October 1, Judge Miller will be able to get into the meat of the case.  He said candidly in open session today that he’s not an expert in election law — and that he’s not even sure that the OC Superior Court has one of those.  My guess is that, a couple of months from now, he’s going to be enough of an expert to see which side is blowing smoke at him here — and that is very good for the Plaintiffs.

Meanwhile, maybe we’ll work on a “money spent on trial” clock that we can run until October 1 — and that we can then accelerate once the Defendants’ motions are denied and any sensible Council would abandon the attempt to block constitutional reform.

Maybe, before long, Anaheim will have one of those.