Nearly two years to the day since it was served with a lawsuit by the Southwest Voter Registration Project seeking to create single-member districts, and never once having discussed the matter in open session, the ENE has learned the City of Cypress has agreed to enter mediation in an effort to settle the lawsuit.
Shenkman’s original demand letter, which came after the city appointed (now Mayor Pro-Tem) Scott Minikus to a vacant Council seat rather than an Asian candidate who ran strong in the 2020 election, accused Cypress of violating the California Voting Rights Act.
The most recent U.S. Census (2020) indicates that nearly 40 percent of the citizenry in Cypress is of Asian descent and suggested that the handpicking of Minikus over Carrie Hayashida demonstrated a bias. Both Minikus and Hayashida, among other candidates, filed to fill the vacancy created by the resignation of Stacy Berry.
Moreover, the lawsuit claims without a change to the city’s election system, wherein all five candidates run citywide, it will be more difficult to have elected representatives on the Council who are more representative of the city’s population.
In addition, the city’s muted response to the demand letter, under a previous administration, ultimately drew the actual lawsuit and another lawsuit against the city, filed by Californians Aware, for a lack of transparency with its citizens.
After the lawsuit was filed, residents Malini Nagpal and Katie Shapiro signed as local plaintiffs along with the Southwest Voter Registration Project. After more than a year of jostling, which gave the city time to hold what will likely be its last at-large city Council election in November, Shenkman proceeded with the suit earlier this year.
While the city Council has not relayed the information to the public, Shenkman told the ENE, without disclosing who voted for or against, that the City Council had voted 3-2 for mediation a few months ago In closed session, then actually voted 5-0 more recently, also in closed session, to proceed to mediation.
Mediation does not mean that the suit will be settled, said Shenkman, but it means that it could be settled. Nagpal, one of the plaintiffs, confirmed to ENE that she has been notified of the mediation proceeding and they have been asked to review a number of potential outcomes.
Critics of the Council’s handling of the issue have always asserted the city was wasting taxpayer money by its opposition. It’s hard to determine how much the city has actually spent, but the city is now paying three law firms, even if only one of them is technically charged with defending the city in the case.
Aleshire & Wynder is the city’s legal counsel of record, Rutan & Tucker now inspects public records requests and the NorCal firm of Boersch & Illovsky has been retained specifically to defend the city in the CVRA lawsuit.
Shenkman said it is highly possible that the Cypress Council saw the handwriting on the wall when the State’s Supreme Court ruled Aug. 23 against the City of Santa Monica in a similar suit. Shenkman said the City of Santa Monica will end up paying upwards of $20 million in legal fees in its losing court battle.
“In practical terms, perhaps the city has seen the folly of their ways,” said attorney Kevin Shenkman of Shenkman and Hughes law firm, who filed the suit on behalf of the Southwest Voter Registration project.
In addition, the closed-door vote in Cypress to go to mediation comes after three of the five Council members, Frances Marquez, David Burke and Mayor Anne Hertz-Mallari had been deposed in the lawsuit.
According to two of three depositions for which ENE has already obtained copies, there were some threats and other issues with potential ramifications as they testified under oath. With the vote to move to mediation, is unclear now whether Mayor Pro-Tem Scott Minikus or newly elected Council member Bonnie Peat will be deposed, he said.
Shenkman said the two sides will meet with court-approved mediator Jeff Krivis in Encino on Nov. 1. “This is not a court proceeding and the public is not allowed,” he added.
The entire process of Southwest vs. Cypress CVRA lawsuit is being overseen by Orange County Superior Court Judge David A. Hoffer, said Shenkman.
Settlement of the case could end with any number of acceptable scenarios, including single-member districts, districts with ranked choice voting or even perhaps a mayor elected city-wide and single-member districts.
There are any number of acceptable possibilities, he said.
Shenkman said it was not likely, however, that the judge would throw out the most recent election because of the city’s conduct. While it has happened in the past, Shenkman said the city’s recent decision to move to mediation may temper any of the remedies that judges have used for cities that show absolutely no inclination to cooperate.
It’s up to the mediator now to bring the two sides together, said Shenkman, who added that the court proceedings will only resume if the two sides are not able to reach a settlement agreement in mediation.