Two-thirds trouble

The increasingly complex war over redistricting in Butte County has a new battlefront: A lawsuit filed Dec. 3 by a group of opponents of Plan 5 alleges that the Board of Supervisors never had the legal authority to hire outside counsel to sue the county clerk, Candace Grubbs.

At a Nov. 26 meeting, the board voted 3-2 to hire Bell and sue Grubbs because of her refusal to accept their ballot wording—she called it “biased and inflammatory"—describing their controversial redistricting Plan 5, which was the target of a successful referendum drive and will be on the March 5 ballot. They also sued Grubbs because she refused to use the new district lines drawn by Plan 5 for the election, saying that by law they could not be applied until voted upon.

The new lawsuit cites a 1988 case, Harvey vs. Butte County, in which an appellate court judge ruled that, in order to hire a private lawyer with public funds, by law five-member county boards of supervisors must have at least four affirmative votes.

The Board of Supervisors, the suit points out, agreed to hire attorney Charles Bell and sue Grubbs with only three votes. Kim Yamaguchi, Curt Josiassen and Bob Beeler voted to do so, while Jane Dolan and Mary Anne Houx voted against the action. Three votes are not enough, the new lawsuit states, and the board’s suit should be thrown out.

Worried that there just may be something to this new suit, county Auditor-Controller Dave Houser (he’s the one who writes checks on the county’s behalf) asked county Counsel Bruce Alpert this week if he should hold off paying Bell until a judge rules on it. Houser confirmed that Bell hadn’t yet received a dime from the county, not even the $2,000 advance his contract required.

Citing a conflict of interest (he has stated publicly that he agrees with Grubbs’ legal stance and actions), Alpert passed the request for his opinion to interim Chief Administrative Officer Larry Odle, who confirmed Monday he hired an independent law firm—McDonough, Holland and Allen, of Sacramento—to give a legal opinion on the case before the county starts paying Bell for his work.

Bell, who was served with the new lawsuit Monday morning just before he was to leave Sacramento to attend a Board of Supervisors meeting in Oroville, could not be reached for comment on the matter. As it turned out, he did not attend Monday’s meeting. He told Odle that he was unable to make the trip because of car trouble.

The new lawsuit was filed on the heels of another piece of bad news for Yamaguchi, Josiassen and Beeler. On Monday, Dec. 3, Superior Court Judge Roger Gilbert declined their request to fast track their lawsuit against Grubbs, citing that they hadn’t given sufficient reason to move the case up from its original court date of March 11.

The trouble with that date, claimed attorney Ben Davidian, who works with Bell, in papers filed at the court, is that it falls after two other important dates: the Dec. 7 deadline for filing supervisorial candidate papers and, more important, the March 5 election.

It’s clear that the three supervisors who support Plan 5 wanted the early hearing so they could force Grubbs to start accepting supervisorial candidate applications from prospective candidates who live in districts 2 and 3 as Plan 5 draws them. Grubbs acknowledged this week that she had no intention of doing so and said she would do so only if ordered by a court.

Josiassen, who has supported Plan 5 since July, when Yamaguchi first proposed it, said he’s unclear about the content of this new lawsuit, given that he hasn’t seen it yet. He said, though, that what he’s heard troubles him. He’s adamant that the new districts drawn by Plan 5 need to be used for the March 5 election because the old boundaries, which are based on 1990 census figures, are unconstitutional in terms of population distribution.

“This still doesn’t address the need for a court to look at those lines and address the constitutionality of them,” Josiassen said. “That’s what we’re going to keep going back to.”

He added that requiring the board to have a four-fifths vote to hire outside legal counsel would “tie our hands.”

“I don’t know how we’re supposed to deal with not having legal counsel when [Alpert] is conflicted out,” he said. “That would make it really tough on us.”

Rick Crabtree, one of the lawyers who filed the suit, said that’s the point. He said his clients have been considering litigation for some time and decided to file last week. Keith Wagner, Dolan’s lawyer, is the other lawyer who is listed in the suit as a plaintiff’s attorney. Dolan herself is not.

“We came to the conclusion that the board has no concern for following the law," said Crabtree, who was mayor of Paradise from 1983-84. "It is apparent that they intend to do whatever they want until someone sues them, so that’s what we did."