A Mission Viejo resident is challenging in court the scheduling of two City Council seats for the 2024 ballot, arguing the members were previously elected to two-year terms and should be up for a vote in November.

A lawsuit filed April 7 in Orange County Superior Court argues that all five Mission Viejo City Council seats should be up for election this November because that is what is laid out in a 2020 settlement agreement stemming from a separate lawsuit over how the city’s elections were conducted.

Mission Viejo, along with many cities, school districts and other special districts in California, had been challenged for its at-large election process, which voting rights groups say dilute the vote of minority community groups.

In trying to address the concerns, city leaders planned to change to a cumulative voting method in 2020, with all five council members elected at the same time, verses being staggered as they had been in the past. To make the seats align, some were elected for two-year terms.

That change to the voting system was delayed, with city officials hoping to adopt it with the 2022 elections. It was ultimately abandoned last year because of concerns from state election officials. Instead, the city is going with the more common district election system, and the City Council recently approved the new election codes and the map for dividing Mission Viejo into five voting districts.

Now the city is staggering the seats again, with three council members on the ballot in November and two in 2024 – all elected to four-year terms.

The lawsuit argues the city is violating state law and the settlement by allowing two council members who were elected to two-year terms in 2020 to bypass a spot on the ballot this year. But city officials said that condition of the agreement no longer applies, now that the city adopted an election method that requires the terms of the council seats be staggered.

The terms of the 2018 winning council members, Wendy Bucknum, Greg Raths and Ed Sachs, were previously changed back to four years, and the two who were elected in 2020, Trish Kelley and Brian Goodell, were recently scheduled for election in 2024 – and that second change is what the new lawsuit is challenging.

Attorneys in the lawsuit argue the new city code is “callously disregarding” both the settlement agreement “that all five districts be placed up for election in November 2022 and the fact that all five of the incumbents’ terms of office will expire (or will already have expired) in December 2022.”

In certifying the results of the 2020 election, the two-year terms of Goodell and Kelley were set under state law, said Aaron Hand, an attorney representing resident Michael Schlesinger in the lawsuit.

“When a term is set as a two-year term, that’s fixed,” Hand said. “So it is a fact that Goodell and Kelley’s terms will expire in December of this year, two years from when they were sworn in.”

Schlesinger is also asking the state attorney general to allow him to sue separately over the previous change to the terms of the other three City Council members because of the delays in implementing the city’s election plans.

Since that legal action would challenge the members’ right to hold their existing seat on the council, it requires the attorney general’s approval. A decision has not been released yet, Hand said.

All five council members should be on the ballot this year, he said, adding that “the outcome may well be that the same people are placed into office, but it’s a dangerous precedent for democracy for elected officials just to say ‘I’m not going to call an election for my seat when my term expires.’”

City Attorney Bill Curley said the allegations laid out in the recent lawsuit are “flat wrong.”

The language in settlement agreement that describes how the city should align its election years through two-year terms for some council members is linked to their implementing cumulative voting, he said. Curley pointed to a section in the original 2018 agreement that says the members in office at the time “shall continue in office until the expiration of their respective terms,” saying that, absent the adoption of cumulative voting, that means following the city’s standard four-year term.

The settlement “was a way to give direction separate and distinct from the Municipal Code law, but it applied if there was cumulative,” Curley said. “If there’s not cumulative, the Municipal Code law applies.”

The lawsuit asks a judge declare the council’s adoption of the March ordinance “in violation of the law” and demand the city includes all five district seats in this year’s election.

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