How a city could continue to operate with just two council members was the focus Tuesday, Aug. 30, of a court hearing in a lawsuit looking to oust three of Mission Viejo’s elected leaders.

The hearing followed a tentative ruling issued on Monday by Superior Court Judge Walter Schwarm, in which he said City Council members Greg Raths, Wendy Bucknum and Ed Sachs should be removed from their seats in office. Schwarm did not make a decision Tuesday whether to make his ruling official, but if he does, it’s believed it would be the first time a judge in Orange County has ousted that many elected representatives at one time.

At the center of discussions during Tuesday’s hearing was whether Schwarm has the authority to decide how the city should address what would be a lack of a quorum should the three elected members be removed, including directing the two remaining council members to fill in the vacant seats with appointments.

Attorneys representing the city told the court they were unsure a remedy exists at all if the three elected members were removed, and said they were concerned how a lack of quorum would jeopardize ongoing city projects.

Attorneys representing the Mission Viejo resident who sued said they believed the judge can fashion a solution for the city.

Another hearing is scheduled for Wednesday, Aug. 31, to continue talks.

The lawsuit against Sachs, Bucknum and Raths, filed in May by Michael Schlesinger, challenges whether the elected members unlawfully extended their terms in office in 2020, from two years to four years, while officials were working to implement a new voting system in the city, which took longer than expected.

Judge Walter Schwarm issued a tentative ruling on Monday saying three elected Mission Viejo city council members would need to vacate their positions. He listens to attorneys during a hearing in Santa Ana on Tuesday, August 30, 2022. (Photo by Mindy Schauer, Orange County Register/SCNG)

In his tentative ruling, Schwarm wrote that he intends to order Sachs, Bucknum and Raths to leave their offices as of 5 p.m. on Sept. 30, noting the month delay because the “removal of the majority of the City Council members is a drastic measure which the court does not take lightly, and the court intends to minimize the impact on the residents of the city by providing the city government time to plan before the vacancies occur.”

The order as written would not bar Bucknum, Raths and Sachs from running for City Council in November.

The city has maintained that the two-year terms for the three elected members were contingent on the city implementing cumulative voting, and when that attempt was delayed and ultimately discarded, the city’s regular ordinance setting four-year terms in office for City Council members kicked in.

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During discussions Tuesday, Curley asked Schwarm to consider waiting until mid-October or later to remove the elected members if he adopts his tentative ruling, arguing leaving the council with just two members would jeopardize projects and city business, such as upcoming union contract negotiations and bond payments.

Schwarm at one point questioned whether he had the authority to delay their removal at all, and on the issue of whether he has the power to direct a remedy for the vacancies, he wondered if, “maybe it’s just not the court’s problem, maybe the city figures it out,” he said.

He said the parties would meet Wednesday morning after having the chance to “think about it a little bit more.”

In a separate lawsuit, Schlesinger sued to prevent the other two City Council members in Mission Viejo, Trish Kelley and Brian Goodell, from staying in office until 2024. The pair was elected in 2020 for what voters were told were also two-year terms while cumulative voting was being worked out, his attorneys said.

Schwarm in June issued a preliminary injunction ordering that all five seats be on the ballot in November. The judge on Tuesday signed an agreement that had been reached between both sides in that case, which confirms that all seats will be up for election.

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