Berkeley's Council Majority Has It Sewed Up Again, Thanks to Tax-Paid Lawyering

By Becky O'Malley
Friday May 02, 2014 - 03:08:00 PM

As of the time of writing it appears that proponents of submitting the Berkeley City Council majority’s redistricting plan to the voters will not appeal a judge’s decision to allow the disputed council district boundaries to be used for the November city council elections, which will choose councilmembers for new four year terms. The legal sleight of hand which made this possible is much too slippery to detail here, but the real-world result is that the decision effectively nullifies citizens’ right to challenge council decisions using the method authorized in the City of Berkeley Charter. 

The main magic trick pulled out of Mayor Tom Bates’ hat is putting the referendum on the same November ballot as the election of councilmembers, instead of on the next election after the petitions qualified, which would have been June. 

If the voters had overturned the new district lines in the June elections, as polls suggested they might, one of the alternative configurations could have been used in November. Or if the council majority had followed previous practice, they would have reached a settlement with referendum proponents which made the whole dispute moot. 

Instead, Berkeley taxpayers paid some tens of thousands of dollars to Remcho, Johansen & Purcell, LLP, a top-drawer law firm which boasts on its own website that it’s “listed in Capitol Weekly's (Annual) Top 100 unelected political players.” It’s a pay-to-play society these days, and RJP’s a major player, thanks to lucrative fees from government pockets. (By the way, the Mayor seems to have met with the lawyers even before the council authorized legal action.) 

Referendum backers, on the other hand, have to pay their own legal fees, also in the tens of thousands. Doesn’t seem fair, does it? And that’s one reason why they probably won’t appeal. 

The outcome of this particular court case could have been predicted, and in fact was predicted by several observers. Lower court judges tend to defer to elected bodies in local matters, partly because they seldom understand the labyrinthine particularities of local charters. Challengers often win on appeal, but that’s costly when the electeds can dip into the public till to pay their unelected counsel. 

The most annoying thing about the whole brouhaha is that in the end it amounts to not much more than the Bates machine’s greedy desire to rid themselves of Councilmember Kriss Worthington, a thorn in the side of at least the last two mayors because he persists in asking the hard questions in a go-along-to-get-along environment. In November, if Worthington runs again, the more progressive students who live in co-ops and residence halls on the Northside will have been gerrymandered out of his district—and even though he won handily last time without a runoff, it will be harder this time. 

It might not make much difference anyhow, sad to say. Berkeley continues on its inexorable march to become Piedmont Del Norte, as little bungalows down near San Pablo are selling for a million bucks a pop and downtown is condoized for the benefit of the new-rich DINKies. Family size houses in the hills and Elmwood are being bought up as pieds-a-terre for international oligarchs, pushing out the professors who used to live there. 

It will be interesting to see who, if anyone, wants to run for the Berkeley City Council in November. The entrenched incumbent councilmembers who haven’t been gerrymandered out of their existing districts have an enormous advantage in a city which has no news source which reaches any substantial percentage or range of voters. Running against incumbents is a thankless job when name recognition counts for much more than qualifications, and where money (especially developers’ largesse) speaks louder than words. Glancing at big glossy deceptive mailers seem to be the main way most voters make up their minds these days, and that’s what bucks can buy.