Madrid/Alvarez Lawsuit: Premature Litigation?

I spent some time last night reviewing the lawsuit filed yesterday by Max Madrid against Santa Ana City Clerk Maria Huizar. Madrid’s suit asks the court to force the clerk to issue nomination papers to Mayor Pro Tem Claudia Alvarez so that she can seek a fourth term on the city council.

Santa Ana voters approved an extension of term limits from two to three four-year terms before having to step aside for eight years in 2008. Madrid’s suit asserts that the initiative, for which he was campaign treasurer, reset the clock on terms for sitting Council members. If correct, the voters were duped into granting Alvarez and all other sitting Council members the ability to serve for three more council terms on top of whatever time they had served prior to 2008.

I see several problems with Madrid’s suit. First, Madrid is not the party harmed by the determination by two legal opinions sought by the Council which are the foundation of Huizar’s statement in April that Alvarez is ineligible to serve past the end of her current third term. The only party harmed if Alvarez is denied access to nomination papers is Alvarez, not a third party like Madrid.

Second, Madrid alleges that Alvarez has been denied nomination papers for the upcoming city council election. That is not the case since nomination papers are not available to anyone until July 16^th. In addition, since the papers are not yet available, and Alvarez has not requested them, or been denied access to them, there is no cause for a lawsuit.

Third Madrid’s suit alleges that since the initiative did not specify how the extension affected existing members of the council that it reset the clock on all terms for members elected after the passage of the measure.

Madrid is asking the court to subvert the clear intent of the initiative, and the voters who  approved it, that council members could only serve for three terms before having to sit out for two terms (eight years).

The legal analysis in the ballot statement stated:

Measure D amends Section401 of the Charter to change the term limits of city councilmembers from two terms to three terms.

If Measure D is approved, the amendments would be in effect for the November 2008 General Election.

Here is the complete impartial analysis and arguments for Measure D and the sample ballot.

Measure BB (Approved in November 2006) established an 8 year waiting period before a councilmember who has been termed-out may run again for City Council from any ward in the city.

Measure D and BB also did not change the City Charter to include any date specific language regarding the commencement of their respective changes. In 1986, Measure G added date specific language “Prior to the general election in 1988” to Section 101.1 of the City Charter to clarify when the city would be divided into six (6) wards (instead of seven (7) wards, as previously done prior to the 1986 election).

The only date specific language related to Measure D is found in the Santa Ana City Attorney’s Impartial Analysis that states: “the amendments would be in effect for the November 2008 General Election.” Remember, there was only one (1) amendment regarding term limits: two (2) was changed to three (3).

The only candidate on the November 2008 ballot that was affected by the passage of Measure D was the incumbent from Ward 5 (Alvarez). She had been elected to the City Council in November 2000 and then elected to her second consecutive term in November 2004. Because of the passage of Measure D in February 2008, Alvarez was allowed to be on the November 2008 ballot to seek a third consecutive term.

The first two problems related to standing and whether any denial of ballot access had actually occurred, may be enough to stop Madrid’s lawsuit in its tracks. If it isn’t stopped there, a judge is going to have to conclude that the voters intended to give all sitting council members three additional terms on the council before term limits took effect. That runs contrary to the clear actions taken by Santa Ana voters with both Measure D in 2008 and BB in 2006.

Also it should be noted that Madrid’s attorney is Steve Baric of Baric and Tran. Baric is CRP Vice Chairman in March of 2011. He is the President of the California Republican Lawyers Association and serves on the Board of Directors and the Executive Committee of the California Republican Party. Baric’s business partner is former State Assemblyman Van Tran.

Baric is an interesting choice of attorney for Madrid, who is a staff member of Democratic State Senator Lou Correa.