So I Spent Much of the Day Drafting thie Demand Letter for Anaheim’s Latest Brown Act Violation

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Now THAT was a good flick. Maybe the only lawyer other than me to wear a brown suit.

There are lots of subplots going on regarding today’s Anaheim Council meeting, where they’re going to try to delay the adoption of new Council Districts until as late as mid-May to early June.  (Read the Staff Report for item 33.)  This is my contribution on behalf of my client, Brian Chuchua.  (Additional people may be added.)  It’s both flavors of demand letter under the Ralph K. Brown Act, the state’s primary Open Meeting Law.  A cure and correct letter addressing what happened in Dec. 8 and a cease and desist letter addressing what’s on the agenda for today.  It’s a public record now, so I thought people might enjoy seeing it.  And if anyone wants to help read it out loud to the Council — should take five or six people to do so at a mere three minutes per person — let me know!  I’d love to have some company with that.

December 15, 2015

BY EMAIL and PERSONAL DELIVERY to:
Mayor Tom Tait
Mayor Pro Tem Lucille Kring
Councilwoman Kris Murray
Councilman Jordan Brandman
Councilman James Vanderbilt
City Attorney Michael Houston
City Clerk Linda Andal

Brown Act Cure & Correct and Cease & Desist Letter re Unagendized Motion re Redistricting

I represent Brian Chuchua, a citizen of and taxpayer in the City of Anaheim.  Additional citizens and taxpayers of Anaheim may (and I expect will) be added to this demand letter at a later time.

This letter serves as both a “Cure and Correct Letter” under Govt. Code § 54960.1 of the Ralph K. Brown Act with respect to actions of the Anaheim City Council taken on December 8, 2015 and a “Cease and Desist Letter” under Govt. C. § 54960.2(a) of that Act as  to actions that the Council’s December 15, 2015 agenda indicates are contemplated to take place at a meeting later this afternoon.

As provided by § 54960.1,  you have 30 days from the receipt of this demand to either cure or correct the challenged action or inform me of your decision not to do so. If you fail to cure or correct as demanded, such inaction may leave me no recourse but to seek a judicial invalidation of the challenged action pursuant to § 54960.1, in which case I would also ask the court to order you to pay my court costs and reasonable attorney fees in this matter, pursuant to Govt. C. § 54960.5.

As provided by Government Code § 54960.2(a), you may respond within 30 days of receiving the letter (Gov. C. § 54960.2(b)) or “elect[] to respond to [this] cease and desist letter with an unconditional commitment to cease, desist from, and not repeat the past action[s] that [are] alleged to [have] violate[d] this chatper.  (Gov. C § 54960.2(c)(1), which spells out the required format.  The unconditional commitment must be approved by the City Council in open session at a regular or special meeting as a separate item of business.  Gov. C. § 54960.2(c)(2).)  The City need not admit that a violation occurred.  Providing an “unconditional commitment shall not be construed or admissible as evidence of a violation.  (Gov. C. § 54960.2(c)(1) and (c)(4).)

1. Recent Relevant Background

Recipients of this letter are well-aware of the background of the Districting process that Anaheim has undergone this year, so I will not renew them in any depth.  I will merely note that on November ___, 2015 your City Council had a first reading of a proposed ordinance to adopt the “Recommended Plan” of the retired judges on the Advisory Committee on Electoral Districts, né “Reyes Map 2,” aka “The People’s Map.”  A second, potentially final, reading of the ordinance was agendized for December 8.

The agenda for that meeting contained Item 23, a Public Hearing with this charge:

This public hearing is regarding, and it may include, the consideration, discussion, modification, and action to adopt an ordinance approving the City Council districting map recommended in the final report of the Anaheim Advisory Committee on Electoral Districts, identified as Recommended Plan Map 3, identifying four City Council districts that will hold elections in 2016  and two City Council districts that will hold elections in 2018, and addressing such other matters contained therein related to formation of six City Council districts.

(Emphases supplied).  The City Clerk read this charge to the Council when the Public Hearing began.

When it came to be his opportunity to speak following Public Comment at the Public Hearing, Councilman Brandman, at 3:03: of the meeting’s video as displayed on the City website, said:

I move we postpone indefinitely the consideration of the proposed ordinance before us.

And instead I propose, by motion, that we direct staff to set up a new series of hearings, beginning in January of 2016, for further consideration of maps that were already submitted to the Advisory Committee on Electoral Districts where the map includes two or more Latino Majority CVAP districts.  I believe there is a sufficient number of alternatives with the maps that have already been submitted for us to successfully achieve all of our objectives.

Subsequent discussion suggested that Mr. Brandman wished to postpone action on choosing a new districting plan until new CVAP (“Citizens of Voting Age Population,” or the theoretical pool of eligible voters) numbers came in from the U.S. Census Office.  He said that he hoped that this would be by January 15, allowing the Council to hold its first public hearing on January 26.  The Consultant to the Council, Demographer Justin Levitt, said that these figures have historically come in at the very end of January, allowing a first Public hearing at the Council’s February 9 meeting.

The first part of Mr. Brandman’s had been to “postpone indefinitely” Item 23, rendering the balance of his motion extraneous.  City Attorney Michael Houston reemphasized this point in restating the motion riot to its formal consideration, stating at The timestamps refer to the meeting video:

Houston [4:21:46]: For clarification, just for Staff purposes, it was a motion to postpone indefinitely with the understanding we will be before you as soon as it is possible for us to be before you.  We understand what, I think, the motion is.

Tait [4:22:02]: So postpone indefinitely until after the numbers come in.  Am I stating that correctly?

Brandman [4:22:10]  With the intent that hopefully with the numbers coming in on January 15, we’ll be ready to go at a first hearing on January 26.  That is my personal hope.

The motion carried 3-2, with Mr. Tait and Mr. Vanderbilt opposed.

Today’s agenda contains Item 33, allowing Council “[d]iscussion and potential action on the Advisory Committee on Electoral Districts [“ACED”] reconvening for further deliberations.”

2. Analysis

Everything but Mr. Brandman’s initial motion to postpone indefinitely the consideration of adopting the ordinance to receive its second reading was an illegal violation of the Brown Act.  None of it had been properly agendized.  Opponents of such an unexpected move had not been prepared to speak to such a possibility.  Of the 30 or so speakers to address the issue in Public Comments, none of them spoke to this possibility.  They had no reason to do so, because the Council’s clear charge did not contemplate it.  (Aside from other contemplated causes of action, the action taken without proper notice on the agenda violated the rights of citizens to address the issues before the legislative body on December 8 thus constituting a violation of Govt. C. § 54954.3 (a) within the Brown Act.)

The Council, as expressed on the agenda and explicitly reiterated by the City Clerk, was to consider only “the City Council districting map recommended in the final report of the Anaheim Advisory Committee on Electoral Districts, identified as Recommended Plan Map 3,” the ordinance approving which was on December 8 receiving its second formal hearing.  The substitution in of other entire maps, or changes not found on other maps, could be have been considered as proposed modifications to this map.  There is no question, for example, that Mr. Brandman did have the right to propose an alternative such as “Consultant Map 2,” which he described that day as an “excellent” proposal.

But while Mr. Brandman had the right to move to modify the map – to propose specific changes for the Council to consider and debate – the second portion of his motion did not limit itself to mere proposed modifications.  He did not to have the right to do what his motion expressed: to set up a new process that would limit the range of submitted maps that could be considered to only 17 that met the new criterion that he introduced – one that had been exhaustively considered and rejected by the panel of judges for reasons expressed in their Report to the City Council – consigning more than 20 to the trash bin.  He could have done so with notice to the public and an agenda item that allowed such a motion, but he did not do so.  He shocked the public with an extreme, extraordinary, and wholly unexpected proposal.

Mr. Brandman’s proposal was not “consideration” of the Recommended Plan.  It was not “discussion” of that plan.  It was not a proposed “modification” of the plan.  It certainly wasn’t “adoption of that plan.  Those were the sole agendized actions with respect to the Recommended Plan.  It was appropriate for the Council to delay their action – as they did – as is generally the case for motions before it.  It was appropriate for the Council to discuss sequencing of elections (which was explicitly part of the proposed ordinance.)  It was appropriate to discuss matters ancillary to the above tasks as related to the mechanics of creating the districts.  It was not appropriate to undo all of the prior work on this task, ignore the judges’ advice called for in the Measure L initiative, and establish new criteria to narrow the number of “acceptable” potential maps to 17.

(This letter only addresses form.  There are substantive reasons as well to reject what the Council did – such as they ended up deciding to consider almost exclusively maps that, as will be shown, are inimical to the goal of representing Latinos.  That will be addressed in one or more separate demands; its absence here should not be taken as a waiver of any such arguments – including improper dilatory impacts.)

3. Application to Today’s Meeting

Any action that would allow inviting the judges to take part in a process that would consider a set of only 17 of the almost 40 maps potentially under consideration is improper because the Council’s vote to adopt the path proposed by Mr. Brandman must be considered null and void.  No such plan is on the table.  Obviously, it is too late to add it to the agenda for today’s meeting; people, again, have no notice.

Because the only legitimate action that took place on Item 23 last week was to postpone it indefinitely, and because Item 33 on today’s agenda is not a public hearing, no action to continue to effectual this illegally passed plan is appropriate to consider.  No action continuing or building upon Mr. Brandman’s motion is properly on today’s agenda.

However, given that the wording of Item 33 allows “[d]iscussion and potential action on the Advisory Committee on Electoral Districts reconvening for further deliberations,” it is possible for the Council to use the agendized item to effectuate the purpose for which it was initially actually intended rather than the perverted version of it that made its way into the Staff Report which now contemplates the Council not completing its task, which was one vote away of being completed a week ago, until mid-May or early June, giving challengers scant opportunity to learn when and where they can run for office.

That is, the Council can authorize asking the judges who served on ACED to present their views on the matter of the appropriate sequencing of the districts in the Recommended Plan – just in case it should ultimately be approved on a second (and third, if the sequencing changes from the contingently approved “1, 2, 4, 5” plan) reading.  Prompt resolution of the boundaries of new districts and sequence of their elections is critical and time is of the essence to avoid prejudicing potential candidates for office not voting on the final map.

For today, the Council is constrained to comport itself with the understanding that no lawful action took place on December 8 with regard to agenda Item 23 other than its being indefinitely postponed.  Item 23 can, of course, be re-agendized as a public hearing for the Council’s next meeting in January – and with that proper notice the Council is empowered to take such steps as it sees fit at that time, providing that those steps are otherwise lawful.

4. Explicit Cure and Correct Demand

Pursuant to Government Code § 54960.2, my client hereby demands that the City of Anaheim cure and correct its action of December 8 as follows:

1. The Council must formally recognize that all but the first portion of Mr. Brandman’s motion on Item 23 on December 8, viz., to postpone indefinitely the second reading of the ordinance regarding districting, was and is null and void ab initio and cannot ground subsequent actions.

5. Explicit Cease and Desist Demand

Pursuant to Government Code § 54960.2, my client hereby demands that the City of Anaheim cease and desist from the following:

1. Any approval of motions that are not within the scope of a given meeting’s agenda.
2. Any subsequent actions based on the prior approval of motions that were not within the scope of a given previous meeting’s agenda.

Sincerely,

Greg Diamond

Greg Diamond, Law Office of Gregory A. Diamond

See y’all at the meeting tonight!  I’ll be there way too late to get a seat.