ACLU reads the riot act to Rancho Santa Margarita. What is REALLY going on?

As you know if you follow this blog, especially the contributions of South OC Paine, there is a bipartisan coalition of minority voters who’ve been trying to force the Four Holdout Cities of South Orange County to switch to a District Elections system, like most of OC already has. This is partly for more diverse racial representation (as the California Voting Rights Act [CVRA] aims to do) but just as much to break up the cozy incestuous Cabals that have controlled these cities for decades – almost all white, almost all Republican, and almost all living close to each other in the City’s most prosperous neighborhoods and solicitous to those Cities’ biggest special interests.

Well, if you’re keeping score at home:

  • San Clemente has been most co-operative, switching to the new system and paying, as required by law, attorney Michelle Jackson her legal fees for helpfully pushing them to this reform (although dead-ender Councilman Steve Knoblock did try something crazy to try to stop this, which we’ll report on when we get the green light)
  • Laguna Hills has been LEAST co-operative, under the guidance of City Attorney Greg Simonian (whom they share with RSM) and has opted to fight the CVRA in court – a rash fight that is always expensive and never won;
  • Laguna Niguel and Rancho Santa Margarita, on the same page somehow, agreed to move to District Elections but have refused, illegally, to pay Michelle UNTIL THEY CAN GET THE IDENTITY OF THE ANONYMOUS PLAINTIFFS! And some other BS demands that won’t stand. (Also bad – RSM has managed to create a District Map that protects all the incumbents.)

Well, the American Civil Liberties Union has had to step in to the fray in the last three cities, and last week they sent, and read, the following threatening letter to the RSM Council. (And at the end of this letter, if you get that far, I’m going to add my own commentary, my own opinion on what this is really all about, and it’s not District Elections! – Vern)

Dear Members of the Rancho Santa Margarita City Council:

The ACLU Foundation of Southern California is committed to protecting the voting rights of all Californians, including the rights of historically disenfranchised communities. The California Voting Rights Act (CVRA) has been an important tool for the ACLU and other advocates to protect minority voting rights by addressing dilutive at-large systems throughout the state. It is thus concerning that the City is refusing to fully comply with the CVRA’s safe harbor requirement that you reimburse prospective plaintiff’s counsel Michelle Jackson for the cost of the work product generated to support the June 21, 2023 notice letter. [See Cal. Elec. Code § 10010(f).]

It is further concerning that the City of Laguna Niguel is also now undermining the CVRA by taking the same approach of refusing to comply with the reimbursement provision.

We urge you to avoid wasting hundreds of thousands of dollars in taxpayer funds defending a Section 10010(f) lawsuit and hold up your end of the safe harbor compromise by immediately reimbursing Ms. Jackson for all costs associated with the June 21 notice letter.

I. The City’s Continued Refusal to Comply with its Mandatory Duty Under Section 10010(f) will Likely Result in Costly Litigation

The CVRA’s safe harbor is an alternative dispute resolution process that allows a local government that receives notice letter to assess its risk of liability and avoid litigation by: 1) adopting a resolution of intent to transition to district-based elections within a specified time; and 2) reimbursing a prospective plaintiff following the transition for the fees and expenses associated with sending a notice letter. See Cal. Elec. Code §§ 10010(e)-(f).

The reimbursement provision is a key part of the compromise that the League of California Cities supported when the Legislature enacted the bill establishing the safe harbor in 2016.1 In fact, the bill author added Section 10010(f) precisely to address local government concerns over the prospect of costly CVRA litigation by capping fees and costs at no more than $30,000, as adjusted for inflation.

The City could have refused to transition, but it instead adopted a resolution of intent and ultimately moved to district-based elections as a direct result of the notice letter. The City opted for the safe harbor process precisely to avoid “the potential extraordinary cost to defend [a CVRA] lawsuit” and to ensure that the prospective plaintiff’s “ability to recover attorneys’ fees . . . is restricted.” The Council was therefore aware before adopting the resolution of intent that the safe harbor imposes a mandatory duty on the City to reimburse Ms. Jackson for up to “approximately $37,500.”

Despite this understanding, the City has continued to rely on meritless arguments to refuse to negotiate with Ms. Jackson. The City Attorney has at no point made a counteroffer and has outright denied Ms. Jackson’s demand for reimbursement. Among the many arguments, discussed in more detail below, the City maintains that Ms. Jackson must agree to make the identity of the prospective plaintiff a matter of public record and must comply with litigation rules of disclosure for trial experts to corroborate pre-litigation consulting costs.

The City’s insistence on having Ms. Jackson comply with frivolous requests and its refusal to engage in good faith negotiations means that the City has already violated the CVRA’s requirement that it issue a reimbursement within 45 days of the demand. Cal. Elec. Code §10010(f)(1) (setting statutory deadline for payment and recognizing that reimbursement may be “in an amount to which the parties mutually agree”).

If the City continues to refuse to pay Ms. Jackson, she could file a straightforward petition for a writ of mandate to enforce Section 10010(f) and for catalyst fees under Section 1021.5 of the California Code of Civil Procedure. [See Graham v. Daimler Chrysler Corp., 34 Cal.4th 553, 568 (2004) (endorsing the catalyst theory, which permits an attorney to collect fees if a party changes their behavior because of the attorney’s efforts).] That litigation could, in turn, cost Rancho Santa Margarita taxpayers hundreds of thousands of dollars.

In 2018, for example, the Whittier Unified School District also received a CVRA demand letter, availed itself of the safe harbor, and then refused to comply with Section 10010(f). Law Office of Carlos R. Perez v. Whittier UHSD (“Perez”), 87 Cal. App. 5th 463, 468-69 (2023). The school district’s refusal to comply with the safe harbor prompted the attorney for the prospective plaintiffs to file an action for reimbursement. Id. at 469. Following a successful appeal by the attorney, the parties settled the lawsuit for $227,000, almost $200,000 more than Section 10010(f)’s cap on fees and costs. This number does not include the costs the school district incurred on its own attorneys and consultants for the initial transition, the reimbursement dispute, and the Section 10010(f) litigation. A copy of the settlement agreement is attached as Exhibit A.

The City can avoid these exorbitant costs simply by following the law and reimbursing Ms. Jackson.

II. There is No CVRA Requirement to Make a Prospective Plaintiff’s Identity a Matter of Public Record

The City has argued that it cannot reimburse Ms. Jackson unless she agrees to make the identity of the prospective plaintiff a matter of public record. There is no such public disclosure requirement in the CVRA’s safe harbor provision or in any other relevant law. The absence of a public disclosure requirement is underscored by the fact that the City agreed to avail itself of the safe harbor without first requiring that Ms. Jackson make the prospective plaintiff’s name public.

Ms. Jackson has nonetheless offered to share the name of the prospective plaintiff with the City Attorney, which would protect the plaintiff from harassment and allow the City Attorney to confirm that the notice and reimbursement letters were sent on behalf of a prospective plaintiff with standing. The City Attorney has consistently rejected this offer, however, unnecessarily prolonging the safe harbor process beyond the statutory deadline.

The City relies on Perez to argue that Ms. Jackson must provide documentation identifying the prospective plaintiff that will become a matter of public record. Public disclosure and documentation, however, were not at issue in Perez. Instead, the court in Perez held that: 1) the term “prospective plaintiff” includes an individual who has not formally retained the law firm but who the law firm avers it will be able to name as a plaintiff; and 2) that reimbursement under Section10010(f) is not limited to out-of-pocket costs actually paid by the prospective plaintiff. [87 Cal. App. at 466.]

The court’s opinion in Perez did not hold, or even suggest, that a lawyer must publicly divulge the name of a prospective plaintiff where litigation is unnecessary because a jurisdiction has availed itself of the safe harbor provision. While the attorney in Perez did agree to identify the prospective plaintiffs [see id. at 470-71] so has Ms. Jackson, and disclosure to the City Attorney will confirm that Ms. Jackson sent the demand letter and incurred costs on behalf of a plaintiff.

Importantly, public disclosure of individual plaintiffs is not guaranteed during active litigation. For example, in cases where, as here, there is a fear of harassment, courts routinely allow plaintiffs to proceed using a fictitious name. [See, e.g., Doe v. Lincoln USD, 181 Cal. App. 4th 758, 766-67 (2010) (collecting state cases where plaintiffs proceeded using a fictitious name); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000) (noting that courts will allow parties to use pseudonyms when “nondisclosure of the party’s identity ‘is necessary . . . to protect a person from harassment, injury, ridicule or personal embarrassment’”) (citation omitted).]

To the extent the City maintains that it needs the name of the prospective plaintiff for accounting purposes, that assertion is also incorrect. Under California law, fees and costs belong to the attorney. Flannery v. Prentice, 26 Cal. 4th 572, 590 (2001); see also Perez, 87 Cal. App. at 466 (attorney could seek reimbursement under Section 10010(f) even when prospective plaintiff had not paid any out-of-pocket costs).

Ms. Jackson is thus the proper payee, not the prospective plaintiff. There is therefore no legal or practical reason why the City needs the name of the plaintiff, and the City’s insistence on making this individual’s identity a matter of public record raises concerns about potential harassment.

III. Section 10010(f) Does Not Incorporate Trial Expert Rules of Disclosure

Ms. Jackson already substantiated her costs by including detailed invoices from the consultant with her initial demand for reimbursement. See Cal. Elec. Code § 10010(f)(1) (listing a “detailed invoice for demography services” as an example of documentation that substantiates costs). Nonetheless, the City has also requested that Ms. Jackson turn over: the contract with the consultant, evidence that the consultant’s business is registered, evidence that Ms. Jackson paid the consultant, and the consultant’s contact information, curriculum vitae, work product, and employer identification number. Requiring additional information such as a curriculum vitae and the demographer’s work product goes far beyond what the statute calls for and is thus inconsistent with basic principles of statutory interpretation. Moreover, portions of the City’s request are inconsistent with ordinary litigation practices, none of which requires that a litigation or consulting expert have a business that is registered in a specific city or state.

Some of the City Attorney’s excessive requests appear to be based on state and federal rules for trial expert disclosure. [See, e.g., Cal. Code Civ. Proc. §§ 2034.210-310; Fed. R. Civ. Proc. 26(a)(2) & (b)(4).] Section 10010(f), however, does not incorporate trial expert rules of disclosure. State and federal rules of disclosure apply only in active litigation and only for experts who will testify at trial. See id. The trial expert disclosure rules also apply to both parties, i.e., if we accept that the City may demand “expert” disclosures, the City will also need to turn over their consulting analyses.

What’s more, the identity of consulting experts and their analyses are protected from discovery. DeLuca v. State Fish Co., Inc., 217 Cal. App. 4th 671, 688 (2013) (in state court, communications with a non-testifying consultant are privileged and any analyses by that consultant constitute qualified work product that cannot be discovered without good cause); Fed. R. Civ. Proc. 26(b)(4)(D) (in federal court, non-testifying consultants retained “in anticipation of litigation” are exempt from discovery absent a showing of “exceptional circumstances”).

The City’s opinions of the consultant’s findings or qualifications, including whether the consultant’s business is properly registered, are therefore irrelevant to the City’s right to corroborate the costs incurred by Ms. Jackson. If the City wanted discovery such as the contract between Ms. Jackson and the consultant or wanted to challenge the consultant’s qualifications or analysis, the City could have litigated the matter. It did not, and Ms. Jackson’s refusal to comply with these unreasonable requests is not a basis for the City to deny payment.

Ms. Jackson has already corroborated her fees and expenses by providing consulting invoices, her time entries, and receipts for other costs, and the City now has a mandatory duty to reimburse Ms. Jackson. We are extremely concerned that the City has taken an approach to the safe harbor provision that undermines the CVRA, that the City of Laguna Niguel is now also taking the same approach, and that this approach not only violates the law, but will no doubt chill other prospective plaintiffs from sending CVRA notice letters. We urge you to comply with the CVRA and immediately reimburse Ms. Jackson.

Julia A. Gomez
Senior Staff Attorney, ACLU Foundation of Southern California.

Michelle Jackson.

Vern again, and I’m going to give my opinion on why RSM & LN are refusing to pay Ms. Jackson and demanding to know who her client(s) or plaintiff(s) are… and it’s NOT about the cities’ reluctance to accept the reform of districting, or even so much about retaliating against the plaintiffs (who I can assure you are real people with noble motives.)

RSM’s permanent boss Tony Beall, as well as Laguna Niguel’s boss Ray Gennawey, have made it clear repeatedly that they think these districting lawsuits are some kind of vendetta against them by Michelle’s husband, former assemblyman Bill Brough of Dana Point, whom they drove out of politics with false (and recanted) #metoo claims.

And Bill’s offense, in their eyes? Having the gall to demand an AUDIT of Tony’s precious, and totally corrupt, TCA (Transportation Corridor Authority) which at the time was trying to extend the 241 Toll Road into the HEART OF SAN CLEMENTE, along with a whole lot of other malfeasance. Apparently they can’t bring themselves to believe that someone else (whom they can’t identify) is behind this drive for reform in the South County.

This is pure Beall (and Gennawey) guilt and paranoia – Brough has nothing to do with this, and Michelle is just doing the job, a good job, that she was paid to do. But the people of Rancho Santa Margarita and Laguna Niguel are gonna be on the hook for hundreds of thousands for Beall’s and Gennawey’s guilt and paranoia?

This, at the same time as Beall’s jihad against the Boys and Girls Club down there has become an operatic shouting match between Tony and everybody else in town and on the dais? (Coverage of that to come shortly!) If the voters of RSM and LN continue to re-elect these petty tyrants then they are truly sheeple who deserve every hulking legal bill they get.

And that is my two cents. Vern out.

About Vern Nelson

Greatest pianist/composer in Orange County, and official political troubadour of Anaheim and most other OC towns. Regularly makes solo performances, sometimes with his savage-jazz band The Vern Nelson Problem. Reach at, or 714-235-VERN.