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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?
I am somewhat confused by the fact that someone other than Alvarez brought the case forward…what standing do they have to force the issuance of nomination papers to someone else? Shouldn’t Alvarez bring the case up?
I am not an attorney, but I certainly feel that laches could definitely apply base on the above. Should be interesting.
Paragraph 3 of the complaint explains the argument that Madrid has standing; I haven’t looked up the citations, but my guess is that as a citizen of Santa Ana who wants to vote for a candidate being denied ballot access, he would.
Why Alvarez didn’t file herself is probably more a question of politics than law — although if her filing it could have led to a demand that she produce her records regarding all ads and statements made on part of 2008’s Measure D, maybe she’d have a good reason to want to be able to deny personal involvement in the suit. Time to ask some insiders!
If he has standing, then laches may not hold water on Alvarez’s case. He would argue that he just found out that Alvarez was not able to obtain the paperwork and therefore he acted as quickly as he could and as quickly as anyone should expect of a voter.
That’s why I mentioned the notion that as what I understand to be a very close political associate of Alvarez, he was unlikely to have learned about it much after the moment when she did. If he denies this and makes your argument, his credibility on that point would be assessed by the judge. You already know how I think that that will go.
not only am i an attorney but i play one on television and i would have to agree with the esteemed mr diamond, with one caveate. the real party in interest is the city of santa ana who i am sure will respond to the lawsuit. the issues are 1) we all know how good the city attorney is and 2) how hard does the city want to fight this. if the powers that be go along with what ms alvarez wants to do, they put up a token response and she gets another term. greg is right, the best opposition will come from another “citizen”
on the flip side, do not underestimate mr baric, he is very good
How would you like to wake up to THAT every morning?
Wow. Thats a classy comment Mike!
I was just reading similar comments about your signifacant other elsewhere.
Thats Kharma bro.
Let’s review:
Julio is Fat = BAD
Sal is Fat = OK
Beth Is Ugly = BAD (tripple bad depending on the blogger)
Claudia Is Anti-Semitic = BAD (REALLY REALLY BAD)
Todd Gallinger, CAIR Activist = GOOD (that one is really fucked up)
Michele Has Bad Hair = Good (Really good according to the same blogger)
Michele is a whore = Good
Jose Solorio is a whore = Bad (This is wierd and a stretch but really happened)
And on and and on.
Now we have
Claudia is “ugly”. man this gets tiresome.
I am advocating for the hurtful free zone: where we can call anybody ANYTHING. Let’s let it roll, it will be ugly, but like in strip mining we’ll fuck up the entire landscape and up with some nice jewelry.
So if you are ready to lay it down Tardif, so am I.
No one said that Claudia is ugly – dipshit sean mill – that is your MO, to put words into others mouths. She is obviously not ugly – on the outside.
All I’m going to say is that that is not “dipshit Sean Mill” writing, nor his partner in crime. No further guesses allowed.
I think Claudia is HOT. A little spitfire Latina with a cute accent. and smart to boot.
I’ll drink to that DWM
She is also conniving, mean, rude, ill-mannered, imperious and arrogant.
….. abusive, bad-mannered, boorish, discourteous, graceless, impolite, inconsiderate, insulting, uncivil, and ungracious.
Sounds like you’ve only got ONE problem with her. Plus a thesaurus.
Nahhhh, if that were true they’d all be in alphabetical order. Hey, wait a minute!
(To be fair, “conniving” was a somewhat different concept.)
The thesaurus did help – but those descriptions of her character, or lack thereof, are all quite accurate.
Can we bag on Busty now?
Wait, I thought that Republicans like her! Doesn’t she have the State Party Vice Chair as her lawyer? And you’re slagging her? Now I’m all confused!
She does have a beautiful voice, but so did Josef Stalin — NOT THAT I AM COMPARING HER TO STALIN, OF COURSE!
Again, we can jokingly NOT compare Claudia to a guy who killed far more than Hitler
(Citation: Twentieth Century Atlas – Death Tolls”. See also: Aleksandr Solzhenitsyn: The Gulag Archipelago 1918–1956, 1973–1976 ISBN 0-8133-3289-3) and thats OK.
But, one quip about the ashtray in Chases Mercede’s gets you kicked of the council.
TOO TOO MUCH.
The comparison is to her comparison of the Chases to Hitler. Didn’t you ever watch Seinfeld?
Who made a quip about the ashtray in Chase’s Mercedes? I missed that one.
No. Never would. WEAK SHOW. WEAK WRITING. For the sheep.
But, this explains a lot.
No soup for you.
Wow. We have found someone who hates Seinfeld.
You are out on the ledge on your own on this one, friend.
As Fiala used to say, “The Bumper…”
UPDATE:
Judge was to rule today…decision delayed because Claudia Alvarez has joined the lawsuit.
“Published: July 25, 2012 Updated: 5:46 p.m.
Judge to decide if Alvarez can seek fourth term
City Councilwoman Claudia Alvarez has joined a legal action filed by parks commissioner Max Madrid, an appointee of hers.”
http://www.ocregister.com/news/-365509–.html
Claudia joined the lawsuit? To quote Condi Rice, “no one could have foreseen….”
Is anyone intervening on the other side? David Benevides has hinted that other Council members may not be all that sorry to see Claudia win — not for her benefit, but for theirs.