For the ACLU, Activists, and Anaheim: It’s Miller Time! A Court Preview


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When it comes to Tuesday’s hearing — I’ve heard and read it called both that and a mere “status conference,” so I’m ready for whatever – before Judge Franz Miller on whether Anaheim will have to go to trial to defend its position of refusing to even let citizens vote on the question of whether to introduce single-member districts, I differ from my friend-from-across-the-aisle Cynthia Ward in one major respect.

Cynthia, commenting this past weekend on the Voice of OC‘s characteristically excellent story on this issue, had this to say:

The judge is about to hand us our own butts, we will have to write a big fat check to the ACLU (something I detest the idea of) and we end up with Districts anyway. We should’ve settled last year! Morons! These are the WORST stewards of our public funds that the City has EVER had! Ever!

(She also quipped: “I guess if we wanted this settled the ACLU should’ve hired Pringle!”  For the win!)

I, by contrast, love the idea of the city of Anaheim writing a big fat check to the ACLU.  They need to get their money somewhere; in the best case, as here, it comes from stubborn idiots who don’t mind spending the public’s money.  (Anaheim voters, please take note at who is WAAAAAAASTING YOUR HARD-EARNED MOOOOOOONEY!)  So, when the ACLU wins a subsequent suit someday requiring a huge series of permanent homeless camps to be built in the Anaheim Hills, everyone will know who to thank!

That said, is tomorrow the day when Franz Miller will lower the boom on the city?  Probably not.  Cautious judges in big cases, especially ones who want their decisions to be upheld on appeal, tend to give the party they know is both rich and wrong a whole lot of rope, allowing them to struggle until they tie themselves up in knots.

It would be lovely (and an efficient use of judicial resources!) for Judge Miller to use tomorrow’s proceeding as an opportunity to go absolute Judge Roy Bean on the defendants.  I’d love to see him order Anaheim to impose real voting districts immediatamente, jail for contempt Kris Murray and anyone else who claims that candidate residency districts are ”district voting according to state law,” force the city to impose a new income surtax and Disneyland gate tax to fund the ACLU and city services for the next century, exile Curt Pringle to anywhere but Brea or Fullerton, and undo the effect any spending vote where Tom Tait voted “no” over the past three years as the work of imbeciles.

I don’t expect this to happen.  (There is an outside chance this might be considered judicial activism.)  So here’s what I expect Judge Miller to do instead.

(1) reject the city’s attempt to have the case tossed out,

(2) order the case to proceed to trial, where the ACLU can continue racking up the fees it needs to continue turning our country into Sweden, except with mandatory high-speed rail (YES!) at Disney’s expense.  (YESSSSS!)  (Just kidding.  Love ya, Disney.  Now start behaving!), and

(3) if, as I presume, the ACLU has its own summary judgment motion pending, my guess is that Miller won’t grant it yet, but will instead provide for an expedited trial.  (Election cases can in some circumstances be fast-tracked; with the need to determine what will be voted on next year and when, this should be one of them.)  Tossing out the city’s case would simply give Anaheim another chance to appeal.  All they can really achieve at this point is delay; why give it to them?  (I’d be happy to be wrong about that, of course.)

So let’s take a look at what to look for tomorrow.

Dr. Jose Moreno being interviewed by PBS at Anaheim rally

ACLU-represented Plaintiff Dr. Jose Moreno being interviewed by PBS at Anaheim rally for single-member districts.

1. Are there remaining disputed matters of fact?

This case could conceivably come down to a pure matter of law: given a set of undisputed facts, does the California Voting Rights Act require Anaheim to have real – (REAL ones, Kris Murray, REAL!!!) — single-member voting districts?  If all facts are in and none are in dispute, then Judge Miller — part of whose job, by the way, is to interpret the law — just gets to make his decision.  That could come tomorrow, if he’s already done a bit of opinion drafting and feeling especially aggressive, but he could tell them that he’ll release a written opinion later.

Now this is important: most of what the city has been arguing so far has not actually even been trying to create disputed matters of fact.  Seriously.  You would think that they would have done thing, but generally, they haven’t.

Instead, the city (mostly through the verbiage of the mostly punctuation-free Ms. Murray) has been arguing that districts are a bad idea, that people should vote against them, that having districts would inevitably turn Anaheim into some hell-hole like Los Angeles or San Francisco, or San Diego or San Jose, where all sorts of factions try to get more than their fair share out of the city budget with some success rather than just the wealthy commercial interests being able to do so.  (“Anarchy!  Anarchy, I tells ya!”)

The question of whether districts are a good idea policywise is not, as Judge Miller surely knows, a consideration for him.  The consideration is: what does the law require?  The judge is not to impose a preferred policy over the requirements of the law, because — well, theoretically it could be that the people running the city do not actually have the best interests of minority voters in mind and should not be taken to provide definitive opinions as to what’s best.

(Along these lines: every time the Council members have said “gee, all the people I’ve talked to don’t want single-member districts, I’ve inwardly said “Sweet!”  It’s like they’re testifying that they’re out of touch with the minority community!  Sure, they think that they do a great job of representing everyone in the city equally, as Murray claimed.  You can get yourself to believe anything when you’re clueless and don’t really care!  I really look forward to the day she admits that what she calls providing lots of money for Central Anaheim includes items like the streetcar and the Gardenwalk Giveaway.)

The City has also claimed that it provides lots of money — especially in the budget it just passed, purely coincidentally with the knowledge that a lawsuit predicated on their failure to do so was freaking pending against them — to more needy neighborhoods.  (Cops to arrest them, for example!  And urban tanks!)  Sadly for their case, this too does not enter into the equation.  The question is whether the voting system of the city prevents minority voters from getting their preferred candidates elected.

It’s pretty clear that, in Anaheim, they don’t.  Latino Democrats — of which Filipina-Spaniard Lorri Galloway is only the latter) — with the ability to raise serious money haven’t even been bothering to run in Anaheim.  (Seriously: Leos, Chuchua, Chavez — Republicans.  Even Moreno, should he run, will not be from the same party — the Democrats — as most Latinos in Anaheim and elsewhere.)  The retort from the Council is that, “look, Jennifer Rivera came in 4th place in 2012, and she didn’t even campaign!”  (One of the Council members — I think that it was Eastman or Kring — really did made this argument with a straight face.)  Yeah — that was because she had a same name as a beloved Mexican superstar celebrity.  You give me an unknown and unfunded candidate named Ronald Reagan or Martin Luther King and I promise you that he (or she — why not?) will get a whole lot of votes.

If there’s a disputed matter of fact that could save the city from a summary judgment, it would be the woeful “Demographer’s Report,” upon which it appears to be placing most of its chips.  This report is so misguided and, just as importantly, misused, that the Judge would be justified in giving it no weight.  But — give ‘em enough rope, right?  I think that instead he’d say “OK, we’ll let it go to trial” — lord, please let it be televised — and not only fork over that much more money to the city but destroy the expert witness’s reputation forever.  I take no joy in that.

2. If the Defendant is in the wrong, what is an appropriate remedy? 

The funny thing about us activists seeking a vote on whether Anaheim should install single-district voting is that it should not even go to a vote.  the imposition of districts is required by law; a judge should simply impose it on the city, along with a nice big fine and an orange jumpsuit for Kris Murray if she so much as mentions candidate residency districts.

But yeah — if Judge Miller is cautious, he’ll say “go ahead and vote.”  Give the city a chance to remedy the situation itself.  (Give them and independent groups a chance to violate campaign finance laws, as well!  He can issue general orders for compliance, you know.)  And if they somehow don’t – then impose it anyway.  See, you don’t want to be activist if you don’t have to, but at some point you have to.  I’ve been informed by one who should know that when this issue arose in Compton, the judge ordered the city and the Council to endorse it and not to oppose it.  The vote went the right way by the lights of justice.

Vote on what, though?  On what the city put on the ballot?  No way.

The cheap trick that the Murrjority played, unnecessarily crafting a candidate residency referendum (and an ordinance as well) that would conflict with a separate ballot measure that would implement voter residency requirement was, I think, a little too frickin’ obvious.  I expect that the ACLU will point out to the judge exactly what they did and how it is designed – gratuitously designed — to raise the hurdle for a citizens initiative of the sort that Los Amigos and its amigos might conceivably be cooking up if need be.

I expect that at that point Judge Miller will call a recess, retire to his chambers for a few minutes until he no longer has to laugh out loud, and come back and say: “you know what?  Let’s only leave the part of that charter amendment on the ballot that actually changes something in the charter.”  So, that referendum will become solely about candidate residency and not about “plus at-large.”  And then, Judge Miller will be able to use his judicial powers to order the other piece of the puzzle — a voter residency ballot measure — onto the June 2014 ballot.

I don’t think that that will happen tomorrow, though.  I think that we’re headed for a very entertaining and ultimately gruesome (for the Murrjority) trial.  What else could Judge Miller order as relief for the plaintiffs?   I don’t know — but I expect that it will be something that will make the city wish that they had settled with the ACLU when they still could.

Which, at this moment, they still can — as early as tomorrow, if they have their wits about them.


About Greg Diamond

Worker's rights attorney now moving into "good governance" litigation. North Vice Chair of Democratic Party of Orange County and occasional candidate. Proud to be prolix. Unless otherwise specifically stated, his writings never speak for the Democratic Party at the local, county, state, national, or galactic level. He tries to either suppress or openly acknowledge his partisan, issue, ideological, and "good government" biases in most of his writing here. If you have a question about any particular writing, just ask him about it and (unless you are an pseudonymous troll) he will probably answer you at painful length. He lives in Brea but generally doesn't blog about it. A family member works as a campaign treasurer for Wendy Gabriella in AD-73; he doesn't directly profit from that relatively small compensation and it doesn't affect his coverage. He does advise some campaigns informally and without compensation, although in 2014 he may receive some compensation for campaign consulting and fundraising for the campaign of Jorge Lopez for Orange County Assessor.