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HomeMy WebLinkAbout04/15/2015 Special Meeting/Adj to Executive Session 202 YAKIMA CITY COUNCIL SPECIAL MEETING April 15, 2015 City Hall -- Council Chambers 1 PM Special Meeting regarding Montes and Arteaga v. City of Yakima -- MINUTES 1. Roll Call Council: Mayor Micah Cawley, presiding, Assistant Mayor Kathy Coffey, Council Members Maureen Adkison, Tom Dittmar, Rick Ensey, Dave Ettl and Bill Lover Staff: City Manager O'Rourke, City Attorney Cutter and City Clerk Claar Tee 2. Consideration of Montes and Arteaqa v. City of Yakima and action that may be taken in the case Motion: Ensey moved and Coffey seconded to adjourn to Executive Session to discuss pending litigation for up to 30 minutes. The motion carried by unanimous vote. Council reconvened at 1:20 p.m. Frances Floyd, Counsel for the City of Yakima in the Montes matter, read the following statement (paraphrased). I would like to emphasize the City Council has repeatedly stated on previous occasions that the City has not sought to stay the elections. As a result, elections for all seven positions on the City Council will proceed this year according to the Court's order of February 17, 2015. Although the elections will be going forward as ordered by the Court, the City can still appeal the Court's orders from the liability and remedy stages of this case. The deadline to file is this Friday, April 17. would like to talk about the merits of a potential appeal as we recently learned of a redistricting case in Texas involving the one - person, one -vote principle of the 14th Amendment's Equal Protection Clause. This is the same principle involved in our case. The name of the case is Sue Evenwel vs. Gregg Abbot (Governor of Texas). The U.S. Supreme Court case is No. 14 -940, and the lower court decision that is being appealed from the U.S. District Court for the Western District of Texas is Case No. 14 -CV -335. This case is currently on the steps of U.S. Supreme Court, which means the Evenwel case was decided at the trial court level by a three -judge panel in Texas and is being appealed directly to the U.S. Supreme Court, bypassing the Fifth Circuit Court of Appeals. The appellants have filed a jurisdictional statement, and briefing on whether the U.S. Supreme Court should take the case will be completed by next week. According to the appellants' counsel, we will likely know by the end of May or early June whether the U.S. Supreme Court will accept the case for review, which only requires the approval of four of the nine Justices. Counsel for the Evenwel case has reviewed our briefing and we have reviewed theirs. We agree both cases present identical constitutional issues under the one - person, one -vote clause. Evenwel asks the Supreme Court to clarify whether this principle requires districts to be apportioned on the basis of either total population or on citizen voting -age population (CVAP). This is the same issue argued in our case. The redistricting plan proposed by the ACLU and adopted by the Court creates a substantial Page 1 of 3 203 misweighting of votes among the districts, which we believe violates the 14th Amendments Equal Protection Clause and in our case, the misweighting of the votes is even greater than in Evenwel. Counsel for Evenwel has advised us that our case will be raised by them in their briefing to the Supreme Court to demonstrate this is a compelling, nationwide issue. Counsel has also asked us to file an amicus brief in Evenwel if review is accepted by the Supreme Court. If the Supreme Court accepts review, it could change the law and have significant implications in our case, including a potential reversal of the Court's orders on the liability and remedy stages of this case. We should know by the end of May or early June what happens in Evenwel. There is no guarantee the Supreme Court will take the case or, if it chooses to take the case, that it will decide it in a manner favorable to the City. If the Council elects not to appeal, it will foreclose the opportunity to benefit from any future favorable decision in Evenwel. The case cannot be reopened. If the City appeals, it will preserve its rights to wait and see what the Supreme Court decides. A withdrawal of the appeal can happen at any time. A notice of appeal is a simple, one -page document, but it is critical as it preserves the City's right to proceed with an appeal. The total cost for preparing and filing a notice of appeal would be no more than $600. No significant expenses would be incurred by either side until the briefing stage begins, which is estimated to be July of this year. Additionally, there will be no experts involved on the appeal. I am advising the Council that costs for a full appeal including all briefings will be less than $100,000 and the Council can withdraw the appeal at any time. Lastly, if we file a notice of appeal, it would not foreclose our ability to renew negotiations with the ACLU. The ACLU has asked the Court to award $2.8 million in attorneys' fees, which the City has opposed as unreasonable and excessive. I have been engaged in settlement negotiations with the ACLU regarding a reduction of their fee; however, these negotiations have been unsuccessful. Negotiations are confidential and cannot be publicly disclosed, although the City Council has been advised of the status in Executive Session. If the Council accepts the ACLU's offer, the City will waive all rights to an appeal and will receive no benefit from a potential Supreme Court decision in Evenwel. The City has three options: 1) Direct counsel to file a Notice of Appeal before April 17, 2015; 2) Do nothing -- the Council would elect not to file a Notice of Appeal and instead would wait to see what Judge Rice orders on the ACLU's fee petition. This option would waive any rights to appeal on the merits and foreclose any opportunity to benefit from a potential Supreme Court decision in Evenwel. This option would preserve a right to appeal an order on attorneys' fees; 3) Pay the ACLU's fees as per the settlement offer and waive all rights to appeal any issues. Council Member Dittmar stated he has reviewed the information and understands there is a lot of emotion involved. However, this comes down to a constitutional question. He doesn't believe the City's current districting plan or proposed plan is racist, but that Yakima is more in the center of a right political system and if you run on that you will get elected; race does not matter. Council Member Ettl believes electoral equality is the cornerstone and doesn't feel this issue has received the attention it deserves. As an example, District 1, as the ACLU proposed, has nearly the ' same population as District 7. If you take the total number of people who can vote in District 1 it's 5,000 and in District 7 it's just below 10,000. That means the weight of the vote in one district outweighs the other by two -to -one. Council Member Lover stated last month he wasn't in favor of an appeal, and didn't see anything they could do to affect the liability; however, this information changes that. This is important nationally and it won't affect our election system this year. Assistant Mayor Coffey feels this is not the time for an appeal, and the City needs to move on so the community can heal and come together. While she Page 2 of 3 204 understands $2.8 million is a tremendous amount of money, she believes they have to move forward as a community. Mayor Cawley stated he ran for election at age 20 and is still the youngest member on the Council. By ending his term and two others he believes it is disenfranchising the youth and senior votes. This is about the constitution and if they do nothing it is game over. Motion: Dittmar moved and Ettl seconded that the City Council direct legal counsel in the case to appeal the Orders of the Honorable Thomas O. Rice of the United States District Court for the Eastern District of Washington issued in Montes v. City of Yakima on August 22, 2014, February 17, 2015 and March 19, 2015. The motion carried by a 5 -2 vote with Coffey and Ensey voting no. 3. Adjournment Motion: Ensey moved and Coffey seconded to adjourn to the next Council Business Meeting on April 21, 2015 at 6 p.m. at City Hall. The motion carried by unanimous vote. The meeting adjourned at 1:43 p.m. ('■ CERTIFICATION READ AND CERTIFIED ACCURATE BY ! �� �- i 7 - / COUNCI MBER DATE 07 CO, .IC L MEMBER DATE ATTEST: atUr) COG, J • ' `4 CITY CLERK �, , ; f 9 D � MAYOR * • 1 Cj � s • 1 Page 3 of 3