A Bad Day in Court (News Analysis)

By Dave Blake
Tuesday April 29, 2014 - 11:41:00 PM

The odds were good, but the outcome looks bad.

Yesterday the Court proceedings over redistricting in Berkeley took place before Judge Evelio Grillo at the Oakland Post Office chambers of Alameda Superior Court. Five people representing disenfranchised Berkeley voters, including two disaffected Councilmembers, one alternative redistricting plan proponent representing himself, one attorney representing both Councilmember Worthington and the proponent of the non–Bates machine student plan together, and one attorney representing a Berkeley voter who supported the referendum faced the one lonely attorney representing the city, Margaret Prinzing, from high-powered and Demo-party-structure–connected Remcho, Johansen & Purcell. (The City Clerk also sent a legal representative, who played a careful and refreshingly neutral role in the arguments.)

The referendum supporters knew the case law better and argued better, but not well enough, it seemed likely, to overcome the judge’s inclination to defer to the legislative body whose deliberations were in question, our City Council. Judges, understandably, want to respect the division of power, and you need a strong and clear argument to overcome that tendency.

I hope my sense is in error, but the judge didn’t seem much swayed by the sheer numbers of plans submitted (four against the Council plan), nor the fact that all the Council plan opponents seemed willing to have any of the other plans approved, so long as they weren’t the Council plan. His focus instead was on whether, and if so just why, the Council plan was manifestly inappropriate. 

The hearing began with tedious argument about whether or not the Council violated the Brown Act. They obviously did, which everyone, in their way, pretty much owned up to (even the City’s lawyer, who, in order to counter the argument that the City Attorney shouldn’t have hired outside counsel to represent the Council majority suing the city without first getting an authorization vote from the Council, only managed to cite a Municipal Code section empowering the CA to act on his/her own to hire outside representation when the city was sued for negligence. And she’d clearly prepared that argument in advance.) The judge wasn’t focused on the Brown Act, which is about openness and notification, not actions; he’s not going to overturn a Council decision because they acted, no matter how cravenly, without properly letting citizens know what they were doing. (The Council is meeting as I write this to “correct” these errors by voting retroactively to approve what they did earlier but without proper notification.) 

In the more germane discussion that followed, the judge asked one question I thought was crucial, and invited everyone to answer: Why is it significant that the Council picked one set of students to be in the so-called student district, and choose to move another set out? The answers were a patchwork, mostly having to do with asserting the importance of recognizing diverse student populations, but noone understood that the judge’s question itself showed that he was missing the issue at stake: whether the voters can be allowed to have any say at all over the configuration of their city’s Districts for the coming November election. The judge was not impressed by the answers, and nothing else after that seemed to break through to him, even a reliably impassioned plea from District 3 Councilmember Max Anderson to restore the elements of the democratic process that have been thoroughly trampled on, and to make sure that the people’s right to oversee their elected representatives isn’t completely ignored. 

All this hoo-hah has been, from the beginning, about finding a way to get rid of Worthington in the November election. The judge kept saying that the legal precedents having to do with truncated legislative processes weren’t on point, because the referendum hadn’t yet been before the voters for a vote, and wouldn’t be till November. But it was the Council’s February decision not to put the ordinance on the June ballot, as the Charter requires, that was the decisive event in this legislative process. Certainly, if their plan lost at the polls (well, when, not if, the Council majority would surely lose that vote because the District 7 map looked like a classic gerrymander), there would have been another hasty court. But in that case the Council’s plan, having been rejected, would have had no claim to deference. When they refused to put their plan before the voters in time to apply it to the November election districts, they surrendered any claim they had to first consideration before the Court and truncated the legislative process dealing with their ordinance. The real tragedy is, as Councilmember Anderson was trying to clarify, that a decision to grant the writ will mean that the Council has managed by a combination of stalling and refusing to put the matter before the voters to completely escape the referendum right. 

Don’t get me wrong; the judge is not some corrupt part of a machine. But, due to a number of factors, including a considerable number of red herrings but also a rambling presentation on behalf of the voters, he hasn’t shown any awareness that what the Council majority’s writ is actually asking him to do is to insulate them completely from the right of voters to step in by referendum to stay the operation of odious decisions by the elected body. 

The judge will issue his decision at 4 pm today. He's already rejected the Council majority's last request, that, in the event he decides in their favor, he also stay the normal operation of an appeal in order for the city clerk to proceed to prepare the ballot for the November election, which he noted would give undue and unnecessary added weight to the City Council majority's position.