City Council meetings on February 25 and then March 11, 2014 mentioned a lawsuit over redistricting at the latter meeting. It would ultimately both violate the Berkeley City Charter and nullify the Council minority's intent to use the old district lines for November.
The Council minority felt secure that its referendum prevented the Council majority's new district lines from being applied for the November election. The new lines included a "student district" for District 7, intended by Mayor Tom Bates to defeat Kriss Worthington, his enemy. A large number of redistricting alternatives were presented to the Council, several from George Beier, who had previously lost to Kriss Worthington.
But the Council majority already had adopted the lines it wanted for November. People with different lines were ignored.
Kriss Worthington best represented Council minority views on this subject when he asked a "rhetorical" question about who would ever sue the City of Berkeley over the referendum compelling use of the old districts. To his surprise Mayor Bates loudly answered "I would."
Kriss Worthington appeared shocked. The March 11 motion to place the referendum on the November 4 ballot was amended by Mayor Bates and his Council majority to include a future Executive Session, passing 6-3. The Council minority was opposed to an Executive Session, because that's how the Council, meeting privately with the City Attorney and a few other staff, makes decisions regarding lawsuits. But there was nothing wrong about the motion itself. The Council then adjourned.
Regardless of what some people think, that Executive Session Never Took Place.
This is all on videotape for February 25 and March 11, 2014 Council meetings at:
With the video, you need to find where the referendum is on each agenda and then jump to those discussions.
Berkeley City Charter Section 113, Conduct of Legal Proceedings, states:
"... the Council shall have control of all litigation of the City and may employ other attorneys to take charge of any litigation or to assist the City Attorney therein."
Despite the Council not authorizing any lawsuit against the referendum and its supporters, City Attorney Zach Cowan nevertheless ignored both the Charter and the Municipal Code to file the lawsuit he had been planning for some time.
And Cohan had already hired an outside law firm, without City Council approval, another violation of City Charter Section 113. The chosen firm was Remcho, Johansen & Purcell, leading specialists in California election law. They seemed to have already drafted everything needed to win, working under an illegal contract dated January 30, 2014. One later contract for $30,000 with that firm, dated February 26, 2014, includes a totally false justification: "Legal Advice re Redistricting Ordinance adopted by Council Feb. 25, 2014". (The prior contract is attached.)
Of course that redistricting ordinance had been adopted in December 2013, leading to the referendum. Council took no referendum action of any kind on February 25, 2014, putting the entire matter over to March 11. All contracts between the City of Berkeley and Remcho, Johansen & Purcell violated the City Charter. But with the City Attorney's blessing, the City Manager, Auditor and others in city staff went along with such lawless activity.
The City of Berkeley's contract with Remcho, Johansen & Purcell was later amended on April 24, 2014 to add another $110,000 for a total of $140,000. This contract not only violated Berkeley City Charter Section 113, but the amount exceeded a clear $50,000 limit under Municipal Code Section 7.18.010A: "expenditures [contracts] ... which exceed the amount of $50,000 shall require Council approval." I do not believe any such required approval ever took place, more lawlessness.
A source for documents from links, which I have relied upon, is at:
Otherwise I do not support many of the opinions expressed in that article.
The City Attorney's chosen law firm sued official sponsors of the referendum on April 3, 2014, making defendants in court out of people exercising their First Amendment Constitutional rights to petition the government for a redress of grievances. This had never happened before in Berkeley, although it was standard procedure for Remcho, Johansen & Purcell.
The firm's late founder, Joe Remcho, had done this successfully decades earlier. The claim then and now was that old district lines failed to comply with latest census data, a denial of Constitutional rights to people in under-represented districts. The old Berkeley district lines were based on the 2000 census, while the Council majority's new lines utilized the 2010 census. It would prove to be a winning argument.
I believe it is inherently unfair when the City of Berkeley, with unlimited resources to hire the best law firm, sues citizens and forces them into court at a tremendous disadvantage. All three members of the Council minority became defendants, but they were no better off than other ordinary citizen sponsors of the referendum against Council majority district lines. They lacked attorneys, although the Council minority really needed legal help much earlier, when planning their strategy against the new district lines. Now they were all in trouble and had no unified strategy.
To eliminate inherent unfairness, plaintiffs should have been Berkeley voters, making the case that old district lines discriminated against them. Then the City of Berkeley would have defended its referendum provisions under Charter Section 93, which called for use of the old district lines. I admit this "fairer" scenario is pure fantasy on my part. But note that only in this political case was the City of Berkeley a plaintiff. In all other such cases the City has been the defendant, far as I can recall.
(The City is plaintiff in a lawsuit to prevent sale of the main Post Office, but with 9-0 Council support, it's unrelated to contesed Berkeley politics in my opinion. You can be sure this case, with an outside attorney, was conducted as specified in Charter Section 113.
While totally illegal under the Berkeley City Charter and Municipal Code, the city's anti-referendum lawsuit made a valid argument on the merits. The California Supreme Court, with Rose Bird as Chief Justice, held decades ago that the need for fair and equal districts took precedence over a referendum. (Assembly v. Deukmejian, 30 Cal. 3d 638 (1982). Chief Justice Bird wrote:
"Maintaining the old election districts for the upcoming election would raise troubling questions about the future of reapportionment in our state. It would create a serious risk that every reapportionment plan would be delayed at least two years before it could be implemented."
One lead attorney winning that 1982 case, for Democrats against a Republican referendum, was Joe Remcho, as in Remcho, Johansen & Purcell.
Among Berkeley referendum defendants only Kriss Worthington went into debt hiring a law firm. Jesse Arreguin chose to represent himself, while most of the other referendum sponsors did little or nothing, far as I know.
To demonstrate how bad things were, I believe it was the law firm hired by Councilman Worthington who wrote an April 4, 2014 letter to the City Attorney which mistakenly accepted fiction that the City Council had voted to hire outside counsel for filing the lawsuit on March 11, 2014. Such imagination led to claims in the letter that the Brown Act (public meeting/agenda requirements) had been violated. Yet the Council had done nothing of the sort regarding outside counsel and a lawsuit, other than call for an Executive Session never held.
I want to again refute one popular fiction: The Berkeley City Council never authorized either hiring an outside law firm or filing a lawsuit. Lack of action cannot be a violation of the Brown Act. It was the Berkeley City Charter and Municipal Code that were violated by the City Attorney.
In Alameda County Superior Court, the matter was decided by a judge who ruled for the City of Berkeley that the City Council's new district lines must be used for the November 4 election. That was the law, as established by former California Chief Justice Rose Bird, later deprived of her position by conservative Republicans who denied Bird confirmation .
The Referendum, now virtually meaningless, became ballot measure "S", in which the Council Majority's lines were approved by the voters. Although not in court, I believe that at least Councilman Arreguin tried to raise the fundamental illegality of this lawsuit, perhaps supported by the attorney for Councilman Worthington. But the judge had no interest in that subject, preferring to rule on the merits of old districts vs. new districts.
So Kriss Worthington would have to seek re-election with the District 7 lines Mayor Bates thought would finally beat him. The Council minority's referendum was futile. It would all be up to voters in the new District 7, referred to as the "Student District".
One aspect of Berkeley politics always means placing blame on someone for undesirable results. I believe Mayor Bates was correctly informed early on by an attorney, not necessarily the City Attorney, that no referendum would prevent the Council majority's district lines from being used on November 4. There is little doubt that Mayor Bates communicated to the Council minority how they were wasting time on the referendum, since a judge would order use the Council majority's lines. So the only real surprise was how the lawsuit would be conducted.
The Council minority ignored both the Bates warning and an opportunity to place the referendum on the June 2014 ballot, which was their best option on February 25, as indicated by the City Clerk. The Council minority's lack of legal counsel at all times, until it was too late, left them at a disadvantage. After the Mayor's warning, the Council minority needed a lawyer, who might have informed them that no referendum on the November ballot was likely to prevent use of the Council majority's new district lines. There were better choices for the Council minority, such as an initiative or referendum for the June ballot.
It's reasonable to also blame the Council majority for doing nothing. This provided the City Attorney with a clear path to violating both the City Charter and the Berkeley Municipal Code.
Mayor Bates attached an Executive Session to the motion that carried on March 11, 2014. He should have insisted upon holding that Executive Session. Then 5 or 6 Council majority votes would have provided legal authority for the lawsuit and the outside firm. While lack of 5 votes, highly unlikely, killed the lawsuit. But that would have been legally proper either way. Instead Mayor Bates ignored his own amendment to the March 11, 2014 motion that announced/required a future Executive Session. I do not know his reasons and can only speculate.
Many City Attorneys, not just Zach Cowan, are experts at manipulating the Berkeley City Council. It's a very sad part of Berkeley political history that I have written about at length. The Council majority must be blamed for hiring Zach, on a 7-2 vote, when a far more qualified, professional city attorney was rejected without even being interviewed. The City Council's failure to exercise its powers under the Berkeley City Charter, instead deferring to staff, is a continuing problem.
Now it appears that the Council majority trusts Zach, even when he's totally wrong.
With no attorney on the City Council for many years, this has been an opportunity for abuse by both the current City Attorney and his predecessor.
It's impossible to establish whether Mayor Bates or anyone else on the Council majority side knew that the City Attorney was violating the Berkeley City Charter and Municipal Code. Zach Cohan must have said that an Executive Session was unnecessary. If believed by Mayor Bates and the Council majority, it suggests they either lacked copies of the City Charter or never were aware of Charter Section 113.
So they share a portion of blame with the City Attorney.
It really was City Attorney Zach Cohan who had the most to lose at an Executive Session called by Mayor Bates. Cohan had already violated City Charter Section 113 by hiring the outside firm without required Council approval. An Executive Session might have exposed illegal contracts with Remcho, Johansen & Purcell. So I believe the City Attorney wanted no possible Council interference with the plans he had already set in motion. And he succeeded; with no Executive Session held.
No student candidate ran in District 7, an irony considering all the efforts both for and against the new district's configuration.
Instead Mayor Bates and his Council majority endorsed Sean Barry, a former student, as their hope to finally defeat Kriss Worthington.
The Worthington campaign was run by students, presenting him as the Councilmember who had always been representing students, appointing many of them to boards and commissions.
When the votes were counted Kriss Worthington had won again with low turnout:
Kriss Worthington 832 (55%) Sean Barry 662 (44%)
This was the last try for Mayor Bates to defeat Kriss Worthington, a final failure. Now Councilman Worthington would serve four more years, until 2018, while Mayor Bates intended to retire in 2016. The Council minority had successfully defended its most endangered member.