EXECUTIVE DIRECTOR Hector O. Villagra
CHAIR Stacy Horth-Neubert VICE CHAIR Rob Hennig
CHAIRS EMERITI Michele Goodwin Marla Stone Shari Leinwand Stephen Rohde Danny Goldberg Allan K. Jonas* Burt Lancaster* Irving Lichtenstein, MD* Jarl Mohn Laurie Ostrow* Stanley K. Sheinbaum* *deceased
ORANGE COUNTY OFFICE • 765 THE CITY DRIVE, SUITE 360 • ORANGE, CA 92868 • T 714.450.3962 • F 714.583.8046 • ACLUSOCAL.ORG Sent via email
May 7, 2024
Laguna Niguel City Council
City Hall/Council Chambers
30111 Crown Valley Parkway
Laguna Niguel, California 92677
[email protected]
RE: May 7 City Council Meeting – Public Comment re City’s Mandatory Duty to Comply with California Voting Rights Act’s Safe Harbor Reimbursement Provision (Cal. Elec. Code § 10010(f))
Honorable Members of the Laguna Niguel City Council:
The ACLU Foundation of Southern California is committed to protecting the voting rights of all Californians, including those 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 missed its deadline to reimburse prospective plaintiffs’ counsel, Michelle Jackson, for the cost of the work product generated to support the June 16, 2023 notice letter. See Cal. Elec. Code § 10010(f)(1). 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 16 notice letter.
I. The City’s Failure to Comply with its Mandatory Duty Under Section 10010(f) could 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’s author
1 Assemb. Bill 350, Sen. Comm. on Approps., Aug. 11, 2016 Hearing Analysis Addendum (noting author agreed to add a safe harbor “for political subdivisions who are acting in good faith”); see also Assemb. Bill 350, Assemb.
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added Section 10010(f) precisely to address local government concerns over the prospect of costly CVRA litigation by capping fees and costs.2
The City could have refused to transition; it instead adopted a resolution of intent and ultimately moved to district-based elections as a direct result of the notice letter. 3 The City opted
for the safe harbor process precisely “to avoid the significant costs of any potential litigation”4 and to ensure that the prospective plaintiff’s ability to recover “attorney’s fees and costs are capped at $34,791.”5 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 and it confirmed this understanding when it entered into an agreement with Ms. Jackson on July 27, 2023 to extend the transition period.6 Despite this understanding, the City has violated the CVRA by failing to issue a reimbursement within 45 days of the January 24, 2024 demand. Cal. Elec.
Code § 10010(f)(1) (setting statutory deadline of 45 days for payment).
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 Laguna Niguel 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. Ms. Jackson has Sufficiently Corroborated her Consulting Costs
Ms. Jackson has already substantiated her co sts by producing a detailed invoice from the consultant. See Cal. Elec. Code § 10010(f)(1) (listing a “detailed invoice for demography
Comm. on Elec. and Redistricting, August 29, 2016 Hearing Analysis (hereinafter, “Assemb. Bill 350 Aug. 29 Assemb. Elec. Analysis”) (showing support for bill from the League of California Cities, the League of California Cities Latino Caucus, and the City Clerks Association of California). 2 Assemb. Bill 350 Aug. 29 Assemb. Elec. Analysis at 4-5 (quoting League of California Cities argument in support of safe harbor provision to cap fees for cities “making good faith efforts to switch to districts by ordinance”). 3 See Transition to District Elections, City of Laguna Niguel, https://www.cityoflagunaniguel.org/DocumentCenter/View/24975/20230726_D1_Reso-No-2023-1444. 4 Laguna Niguel Ordinance No. 2023-226 Establishing By-District Elections at 1 (Jan. 16, 2024), https://www.cityoflagunaniguel.org/DocumentCenter/View/26268/ORD-2023-226---By-District-Elections. 5 July 26, 2023 Laguna Niguel Staff Report re Resolution of Intention to Transition from At-Large to By-District Elections at 2-3, 4, https://cityofrsm.granicus.com/MetaViewer.php?view_id=2&clip_id=781&meta_id=59177 (“The Cty must reimburse claimant within 45 days of the written demand.”) (emphasis added). 6 July 23, 2023 Agreement Between Residents and the City of Laguna Niguel at 1-2 (confirming that the parties agreed that the City had a mandatory duty to reimburse Ms. Jackson).
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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, the consultant’s curriculum vitae, and the consultant’s demographic studies within the past five years and amounts charged for those studies. 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, that a party produce a canceled check to show that a consultant has been paid, or that a party produce documentation beyond an invoice or time records to corroborate the consultant’s work.
Some of the City’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 the consultant contract or studies prepared by the consultant, the City will also have to turn over that information for its consultants. 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 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 consultant’s contract, the City could have litigated the matter.
It did not, and Ms. Jackson’s refusal to comply with all or some of 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 and her time entries, and the City now has a mandatory duty to reimburse Ms. Jackson.
We are concerned that the City has taken an approach to the safe harbor provision that undermines the CVRA and that this approach not only violates the law but will also no doubt chill other prospective plaintiffs from sending CVRA notice letters. We urge you to comply with the CVRA and immediately reimburse Ms. Jackson.
Sincerely,
Julia A. Gomez
Senior Staff Attorney
Cc: Kelly Jennings, Mayor, [email protected] Stephanie Oddo, Mayor Pro Tem, [email protected] Laguna Niguel City Council
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Ray Gennawey, Councilmember, [email protected] Gene Johns, Councilmember, [email protected] Stephanie Winstead, Councilmember, [email protected] Scott C. Smith, City Attorney, [email protected]
EXHIBIT A
WUHSD/PEREZ SETTLEMENT AGREEMENT Page 2 of 3
3. WUHSD will prepare and send to the PEREZ LAW FIRM Internal Revenue Service Form 1099 reflecting the above-stated Settlement Payment provided for herein as miscellaneous income, and will forward said Form 1099 to the appropriate governmental agencies. It is further expressly understood and agreed that the PEREZ LAW FIRM has not relied upon WUHSD and/or its attorneys for any advice as to the taxability, whether pursuant to federal, state or local income tax statutes or regulations, or otherwise, of the Settlement Payment made and consideration transferred hereunder, and that the PEREZ LAW FIRM will be fully and solely responsible for all respective tax obligations it may have, if any exist under law, arising from the Settlement Payment in the sums specified herein. Likewise, WUHSD will be responsible for any of its own tax obligations which may arise, if any exist under law, due to the above-stated Settlement Payment.
4. In consideration of the conditions set forth above, after execution of this Agreement, PEREZ LAW FIRM will file a notice of case settlement hereby effectively resolving Case No. 19STCP04238.
5. It is a further condition of the consideration hereof and the parties’ intention that in executing this Agreement it should be effective as a bar to each and every claim, demand and cause of action by the PEREZ LAW FIRM against WUHSD, for attorney’s fees and costs related to, associated with, or arising from any claims asserted in L.A.S.C. Case No. 19STCP04238 (and the related appellate case, Case No. B315375) (hereafter, the Pending Lawsuit).
6. As it pertains to the PEREZ LAW FIRM entitlement to recovery of attorneys’ fees and costs from WUHSD in the Pending Lawsuit, in consideration of the promises set forth herein, the PEREZ LAW FIRM agrees, on behalf of themselves (and their attorneys, representatives, successors and assigns) to unconditionally release and forever discharge WUHSD, its Board members, agents, employees, attorneys, and representatives for all claims for attorneys’ fees and costs related to, associated with, or arising from any claims set forth in the Pending Lawsuit, and as of the date of this Settlement Agreement.
7. It is expressly understood and agreed by the Parties that this Agreement is in full accord, satisfaction and discharge of attorneys’ fees and costs and that this Agreement has been executed with the express intention of effectuating the legal consequences provided for in Section 1541 of the California Civil Code. Section 1541 has been fully explained to the Parties by its/their legal counsel is fully understood by the parties as pertains to those matters released in paragraph 5.
Section 1541 reads as follows:
AN OBLIGATION IS EXTINGUISHED BY A RELEASE
THEREFROM GIVEN TO THE DEBTOR OR THE
RELEASED PARTY BY THE CREDITOR OR
RELEASING PARTY, UPON A NEW CONSIDERATION,
OR IN WRITING, WITH OR WITHOUT NEW
CONSIDERATION.
8. The Parties warrant that they will cooperate with each to effectuate the terms of this Agreement. Accordingly, where appropriate, each Party will sign any and all additional papers and obtain and convey any and all necessary documentation to any other Party.
9. It is further expressly understood and agreed that if at any time a violation of any term of this Agreement is asserted by any Party hereto, said Party shall have the right to seek specific performance of said term or any other necessary and proper relief from any court of competent jurisdiction, and the prevailing party shall be entitled to reasonable costs and attorneys’ fees.