Judge rules for council-majority-approved map in bitter Berkeley redistricting battle

The BSDC map approved by Judge Grillo will be used in November, unless an appeal overturns the decision.

The BSDC map approved by Judge Grillo will be used in November, unless an appeal overturns the decision.

Judge Evelio Grillo ruled today in favor of using the council-majority-approved district lines in the November 2014 election. Grillo heard closing arguments in City of Berkeley v. Tim Dupuis and Mark Numainville Tuesday.

In a 35-page opinion, Grillo determined that the council-approved map, also called the BSDC map, “is the one that best complies with meeting the mandates of equal protection and minimizing any disruption to the election process.” 

“Obviously I am disappointed,” said Councilman Jesse Arreguín in an email to Berkeleyside. “I hoped that the judge would have given more consideration to the several alternate maps submitted which were constitutionally compliant and complied with the City Charter, rather than entering the political thicket and picking a map that was stayed by a successful citizens referendum.

“This ruling sets a terrible precedent and encourages cities to purposely time their action on a referendum so as to inoculate it from challenges and renders the citizens right to a referendum as a futile exercise of democracy and makes a referendum essentially meaningless,” Arreguín said.

According to Arreguín, one of the three council members named as parties of interest in the redistricting suit, referendum proponents have not yet decided whether to appeal the ruling. The city’s lawyer, Margaret Prinzing from Remcho, Johansen & Purcell, had no comment on the decision.

Read more about the redistricting battle in past Berkeleyside coverage.

The alternatives considered by the judge — the 2002 district map, the MAPMINDS proposal submitted in 2011, the minimum deviation map presented to the council this month, and the USDA map introduced in mid-2013 — were rejected for a variety of reasons. According to the ruling, the 2002 map “raises a serious equal protection concern,” because of the unequal populations in districts. The MAPMINDS map predated Berkeley’s Measure R, setting new districting rules. The judge writes that it had not been reviewed for compliance by city staff, the public or the council under the amended City Charter. The judge rejected the minimum deviation map because of “the lack of verification and analysis and the lack of opportunity for comment.” The USDA map, the judge wrote, “was twice considered and twice rejected by the City Council, the legislative body charged with reapportionment.”

Grillo’s ruling points out that if the redistricting referendum passes fails in November, the City Council will need to start the redistricting process over and consider alternatives to the BSDC map. If the referendum fails passes, the ruling says, the BSDC map will be used for all future elections until the next decennial redistricting process (wrongly described by the judge as a “centennial redistricting process”). (Update The actual wording of the referendum will be “Shall ordinance No. 7,320-N.S. be adopted?”, referring to the BSDC map.)

The other contentious issue in Tuesday’s hearing, whether the Brown Act had been violated by council actions, was, according to the judge, rendered moot by the City Council’s approval Tuesday night of an item that “cured or corrected these claimed Brown Act violations.” In the decision, Grillo writes that the city had 30 days from notice of a challenged action to “cure or correct,” and the 30 days ran to May 3.

Update, 5:50 p.m. Councilman Laurie Capitelli said he was “relieved” by the judge’s decision.

“I’m looking forward to doing more productive work,” he said.

Related:
Judge plans to rule today on Berkeley redistricting lines (04.30.14)
Op-ed: How to see through the fog of redistricting (04.30.14)
Op-ed: It’s time to compromise on Berkeley redistricting (04.29.14)
City of Berkeley heads to court over redistricting lines (04.09.14)
Official pushes for independent redistricting panel (03.20.14)
Berkeley redistricting maps to be on November ballot, judge to choose which lines to use (03.12.14)
Council majority pushes redistricting decisions to March (02.26.14)
Berkeley redistricting referendum effort prevails (02.03.14)
Long-time Berkeley progressives back referendum drive (02.03.14)
Redistricting opponents secure signatures to secure vote (01.22.14)
Op-ed: We don’t need a redistricting referendum (01.10.14)
Tight deadline to get redistricting referendum on ballot (01.03.14)
Berkeley redistricting map splits council, community (12.18.13)

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  • Victory for the people!

    Hooray! Justice is served!

  • bgal4

    whose surprised?

  • EricPanzer

    “…rather than entering the political thicket and picking a map that was stayed by a successful citizens referendum.”

    This was not a “successful citizens referendum” it was a successful citizens’ petition to put a referendum on the ballot. This means that somewhere in the ballpark of 10–15% of voters were induced (often with blatantly false information) to sign a petition to support putting to a vote a measure that was approved at a 2-to-1 margin by elected representatives. Contrary to Arreguin’s assertions, siding with less than 10% of the City’s total population against the decision of a super-majority of their representatives would be the real entry into the “political thicket.”

    “This ruling sets a terrible precedent and encourages cities to purposely time their action on a referendum so as to inoculate it from challenges and renders the citizens right to a referendum as a futile exercise of democracy and makes a referendum essentially meaningless,”

    Typically, the point of a referendum is to block implementation of an ordinance. For a more typical referendum that addresses a run-of-the-mill City ordinance, delaying a decision on whether to repeal or go to the ballot would redound to the benefit of those seeking to block implementation. Opponents would effectively get an extended reprieve—that is, a longer period of time over which the ordinance is not implemented because its fate remains in question. Even in the unlikely event the City did try this legal approach with a more conventional ordinance, the ordinance wouldn’t become operative until a court found in the City’s favor anyway.

    Even more importantly, redistricting, while done by ordinance, is far from typical, and the City’s chosen course of action has virtually no impact on other referendum efforts. Effectively, the question the City asked the court in the suit was:
    “Should the City allow the upcoming referendum to block implementation of new districts? Or, consistent with other legal precedent, should other City Charter requirements, constitutional concerns, and recent votes of the people effectively trump the staying effect of a referendum, in this instance?”

    The City was empowered and compelled to seek this remedy only because failing to do so would have likely resulted in both violating other Charter provisions and disenfranchising voters in overpopulated districts. There are few if any other situations where the City would be likely or
    well-advised to seek intervention by the Courts to effectively enact an
    otherwise stayed ordinance or action. The City’s actions will not have a “chilling effect” on future referenda, unless those referenda likewise specifically address Council actions that:

    1) Are required by the Charter to be completed by a certain critical date;
    2) Are necessary to resolve or otherwise address an issue of Constitutional rights; and/or
    3) Are otherwise immediately necessary to avoid violations of other legal provisions.

  • Diane

    Thank goodness for common sense. What a massive waste of time and money. Why does politics in Berkeley always get hijacked by the same crowd?

  • Guest

    I’m not a lawyer, but this seems like a reasonable decision to me. I hope it ends here, but will it? Can the decision be appealed? Will it be?

  • guest

    Does anyone know exactly how much of our tax dollars Worthington, Arreguin & Anderson wasted with this? I’d love to know the dollar amount.

  • JohnD

    Wow, it’s seems some common sense prevailed! Too bad we can’t charge Arreguin and Worthington for these costs. They didn’t have the votes on the council. It will be interesting to see if they actually have the votes among residents when this goes to a referendum.

    It might be good to note in the article that there has been NO referendum yet on this, and certainty not a successful one. That quote without any further context is highly misleading.

    The judges ruling actually made clear that if the referendum was successful the council would have to consider other maps.

    Worth the expenditure though to avoid having our democratic and representative democracy totally hi-jacked by these threats of disruption.

  • emraguso

    Thanks for noting this. We’ll make sure it’s clear. I believe Lance was referring to the successful signature-gathering process.

  • Woolsey

    I haven’t been following this. Can anyone explain why some districts have little protuberances?

  • emraguso

    That was his quote, but I can see what you mean. Lance will follow up on clarifying ASAP.

  • emraguso

    If you mean where the little houses are, that’s where sitting council members in those districts live. Under the adopted rules, sitting council members cannot be drawn out of their districts. That’s been a hot topic in the BSide comments section in the past but not sure the best way to direct you to them. I know Capitelli has said recently that it was a mistake (in retrospect) to make that part of the rules, and I believe Arreguín has suggested changing that as part of his stated plans to try to create an independent redistricting commission. It’s definitely been a political issue.

  • AnthonySanchez
  • Woolsey

    Thanks. So two council members are attached to their districts by umbilical cords and three live on or very near the borders of their districts. And, no self respecting council member wants to live in West Berkeley – don’t those folks deserve representation?

  • Antonio Noguerra

    Hmm, and if you rewind a few frames more, what were the options available to Arreguin and a Worthington when the Council of which they are a part originally voted and reached the same conclusion as the judge? Answer: they could have been part of the loyal opposition rather than sucking up time with their referendum.

    The compromise you speak of would have involved giving into political terrorists and I’m glad that didn’t happen.

  • Doc

    But this means Berkeley might get out from under the self appointed Berkeley Progressive minority?! Crime might go down, parks improve, shopping districts become nicer, schools might even check registration! Will it still be Berzerkeley?

  • George

    Tell me again about the rabbits, Doc.

  • Alina

    I very much agree. We need to get rid of the ridiculous incumbency requirement (makes for laughable maps) and we need a West Berkeley district.

  • guest

    This sentence rings so true:

    “(Berkeley residents)..were induced (often with blatantly false information) to sign a petition to support putting to a popular vote a redistricting map that was approved at a 2-to-1 margin by elected representatives.”

    I remember the petitioners coming to my home. The basic spiel: “this petition is to allow for redistricting.” Nothing about how that petition was actually a referendum on an agreed to, council-approved map. It was so easily to mislead people since virtually everyone is in favor of some sort of redistricting.

    The referendum group should be ashamed of themselves. They’re not, but that shows their true shameful, deceiving character. It’s this “chop off the nose to spite the face” type of behavior that hurts the entire city. When you get 96% of what you want and it’s still not enough, it shows who you really are.

  • MissNDemocracy

    AN, are you from Berkeley? Because calling progressives “political terrorists” is so Republican, and antithetical to Berkeley values, as is kow towing to the “loyal” Bates cabal. You’re recommending just what right wingers want, that people don’t pay attention or express their will but just trust their selected “reps” who actually only represent corporate interests. At least you put your name, AN, tho it is a misnomer. Your kind of hyperbole provokes war. I believe most of the nasty commenters on BerkeleySide (aka BS) are fictional, created by someone who is paid by developers and/or the Chamber of Commerce. The Councilmembers who listen to their constituents and best heed their interests are Worthington, Arreguin, and Anderson. The others disregarded the vast majority of constituents who weighed in re their gerrymandered map, and disregarded 100% of those who spoke during public comment last Tues on items 29, 47, 48 etc. http://berkeley.granicus.com/MediaPlayer.php?publish_id=5b8c70e0-21d3-1032-bf3f-792d77cd9eae

  • guest

    So to say it a different way, Worthington, Arreguin, and Anderson cost the city of Berkeley taxpayers $30,000.00 — that could have been spent on schools, fixing potholes, or maintaining our parks — because they didn’t want to follow the rules and were too lazy to submit their own maps until well after the deadline.

  • No argument from me.

    Is your argument that Worthington & Arreguin were too clueless to know that their actions re: the referendum would result in exactly this, and their ignorance and selfishness ended up costing the taxpayers yet again?

    if so, you may be right!

  • MissNDemocracy

    The council majority first tried to redraw the district lines so that Councilmembers Arreguin and Worthington would be living in other Councilmembers’ districts, but they couldn’t get away with that so, instead, they imposed the gerrymandered map despite compelling opposition from the vast majority of voters who weighed in via email and in person at the meetings. Their unwillingness to compromise an iota left no recourse but the referendum. Now they have deprived all of Alameda County of that right to redress of government by illegally launching a lawsuit against that democratic right. The progressive 3 offered many compromise maps including some that they didn’t like. Any of them would have been more fair for Berkeley: http://berkeley.granicus.com/MediaPlayer.php?publish_id=5b8c70e0-21d3-1032-bf3f-792d77cd9eae

  • MissNDemocracy

    Your story rings false. Anyone who used misleading info would not have been allowed by referendum proponents to continue gathering signatures. People at least skim before signing. One of them would have reported that. The referendum statement at the top of the signature pages was clear and concise. “guest”, you are the one who posted blatantly false info w/out your name or photo. Shame on you.

  • MissNDemocracy

    Of course it can be appealed, and should be, and would be were this not a pay to play system with deMOCKracy of by and for the 1%.

  • MissNDemocracy

    Gratitude to the many commenters & signers of this related, still timely, MoveOn petition: http://petitions.moveon.org/sign/berkeley-city-council?source=s.fwd&r_by=363923

  • guest

    No matter how hard Worthington, Arreguin, Anderson and there minions try to spin this, it is heartening to see that most of our well informed electorate is starting to understand these tactics for what they are: wasteful, time consuming sour grape political games that we tax payers have to swallow and digest. This same cadre of the Council minority is now trying to circulate petitions to unwind our Downtown Plan that is starting to show great community benefit. A Downtown Plan that was overwhelmingly adopted by every single voting precinct in our City – including the precincts within their own districts. They also want to make it so that any building in West Berkeley over 45 feet high must be approved by voters. I’m sorry – whose interests are they “protecting?” We have a representative democracy, not a comprise democracy. Our democracy has been compromised for too long.

  • guest

    Is there going to be a referendum item on the November ballot? I’m so confused.

  • Chris

    Well put Antonio!

  • guest

    “Because calling progressives “political terrorists” is so Republican,
    and antithetical to Berkeley values, as is kow towing to the “loyal”
    Bates cabal.”

    “Your kind of hyperbole provokes war.”

    Who is the one who is really guilty of the sort of hyperbole that provokes war?

  • guest

    nice, call people liars without evidence.

    anonymity has been discussed many times in the comments sections before. why don’t you go ahead and use your real name and post your address if you’re so into publicizing your beliefs.

    lastly – PAID signature gatherers have no incentive to describe exactly what’s on the page in front of them. i’m not saying that all are intentionally misleading people. however, the one who came to my door did NOT explain the situation appropriately and after discussions with my neighbors on this topic, they felt deceived after having signed the petition.

  • guest

    Anyone who used misleading info would not have been allowed by referendum
    proponents to continue gathering signatures.

    Not true, at all. There were many reports of misleading information and bigoted speech coming from signature gatherers and they were defended in comments here and kept on the campaign.

    http://www.berkeleyside.com/2014/01/03/tight-deadline-to-get-redistricting-referendum-on-ballot/#disqus_thread

    People at least skim
    before signing.

    Not in my experience.

    One of them would have reported that

    Why? What good would it have done?

  • guest

    Worthington is a Faux-gressive, not a Progressive.

  • John Freeman

    What good would it have done?

    It would have elevated this rumor about petition abuse beyond just Berkeleyside comments like yours.

    To me, it seems pretty transparent that a few “guest” commenters are keeping up the drumbeat to create the illusion of a scandal where there is none.

  • Erich

    Hang on a second! I am confused. Does this mean that an “In & Out” Burger WILL be opening on the Ave? and what about all the blighted property and “Homeless” vandals & vagrants clustered around The Ave and Haste?

  • guest

    It would have elevated this rumor about petition abuse beyond just Berkeleyside comments like yours.

    What evidence do you have that reporting paid signature gatherers spreading misleading information to the people who were in charge of gathering signatures for the referendum would have resulted in any change at all?

    To me, it seems pretty transparent that a few of Worthington’s diehard supporters are trying to downplay the reports of misleading statements made by paid signature gatherers and overinflated the relative support for the referendum to make it seem like a popular uprising when it wasn’t one.

  • emraguso

    Unless there’s some kind of compromise reached, there will be a redistricting referendum on the ballot. My understanding is it would allow voters to approve or deny the council-adopted lines.

  • emraguso

    And I think it’s too late for a compromise.

  • Peter Moore

    At least two different people collecting signatures for the referendum at the Berkeley Bowl at different times were repeatedly and openly lying about the referendum. I was there. This is my name and photo. What’s your name?

  • MissNDemocracy

    What lies did they tell? I heard none.

  • Antonio Noguerra

    This is just lazy ideological speech. There is not a single set of “Berkeley values,” and your definitions of progressive, right wing, and cabal are tortured posturing. The people who speak at public comment are hardly representative of the residents of Berkeley, though if you believe that, it would explain much.

  • http://www.DemocracyNow.org MissNDemocracy

    The Mayor and his 5 cronies were the ones who illegally launched a lawsuit using public funds, ie our taxes, rather than compromise! Worthington used his own hard-earned money to hire a lawfirm to defend the people’s right to referendum. Arreguin and Anderson defended themselves, without attorneys, but the case would have had NO chance without Worthington’s attorney.

  • http://www.DemocracyNow.org MissNDemocracy

    Nice turn of phrase which perfectly describes Baits, MyOh and MOOre. They are green-washing FAUX-gressives. Wengraft, Crapitelli and Woesniak rarely even pretend to be progressive.

  • guest

    Is it lazy ideological speech or crazy ideological speech?

  • guest

    Two West Berkeley residents ran against Darryl Moore in District 2 in 2012. Moore still won in every West Berkeley precinct. There was only one precinct in which Moore didn’t best even the combined total of his two challengers, and even then, the difference was 19 votes.

    It’s pretty clear that this is not an issue for West Berkeley voters. Most people in West Berkeley really like Moore and have voted for him repeatedly.

  • Diane

    Maps were submitted late, out of policy. And most of us in this city were fine with the original map.
    All that has happened since has been the usual Berkeley sideshow. Most of us don’t have time or inclination to attend meetings to wrangle over things like this. I’d much rather the $30k had been spent on fixing my broken sidewalk that I requested Berkeley Engineering to fix two years ago…
    Berkeley council too often mistakes the vocal minority of the usual crowd of squeaky wheels for the majority.

  • guest

    Updoc is a healthy, nutritious gluten-free green.