Court Rejects Move to Prevent Seating of Viejo Councilman

An Orange County Superior Court commissioner Tuesday denied a request for a temporary restraining order aimed at preventing City Councilman-elect Robert A. Curtis from being sworn into office when Mission Viejo officially becomes a city Thursday.

Papers were filed in Superior Court on Tuesday by an attorney for Robert Breton, who came in sixth when Mission Viejo elected five members to its first City Council and passed an incorporation measure on Nov. 3.

Breton is contesting that election, charging that Curtis violated the California Election Code by not meeting the legal residency requirements when he filed for city office in August.

Hearing Postponed

But Commissioner Ronald L. Bauer postponed a hearing on the request for a preliminary injunction until April 22, to give Curtis and his attorney more time to respond to the charges. Curtis, 32, was notified Monday by Breton’s attorneys that a restraining order would be sought to attempt to remove him from office.

Bauer’s ruling means that Curtis will be sworn in Thursday along with four other City Council members-elect during a ceremony marking Mission Viejo’s incorporation as Orange County’s 27th city.

Breton, 42, and his attorneys have charged that Curtis was not a resident of Mission Viejo when he filed his election candidacy papers on Aug. 27, 1987, in violation of the state Election Code, which requires a candidate for office to be a resident and a registered voter within the area he would be elected to serve.

Breton, a deputy attorney general for the state Justice Department, is calling for Curtis, who also is a lawyer, either to resign or be declared ineligible for office, and that he, Breton, should replace him.

Slept on Floor

Before the election filing deadline of Aug. 27, 1987, Curtis had been living in Aegean Hills, an unincorporated area adjacent to Mission Viejo. After Curtis’ failed attempts to have Aegean Hills included in Mission Viejo’s incorporation proposal, his father bought a condominium in Mission Viejo, where Curtis slept on the floor in a sleeping bag on Aug. 26 to establish his residency.

In court documents, a photocopy of Curtis’ voter registration application shows that Curtis dated it Aug. 27. However, the registrar’s verification date on the application is Aug. 26.

Breton’s lawsuit maintains that Curtis knew he was not a Mission Viejo resident on Aug. 26 and postdated the application Aug. 27, with the intention of spending the night of Aug. 26 in the condominium.

According to the county assessor’s office, the deed to the condominium was issued to Curtis’ father, Robert L. Curtis, on Aug. 31.

Curtis said he did spend the night of Aug. 26 on the floor of the unfurnished condominium.

“I never had any intention to (deceive) the registrar of voters. It was my intention to register and reside in the city on the 26th of August,” Curtis said, adding that it is possible he might have mistakenly written Aug. 27 on the application because “the date was very present in my membranes” as the last day to file candidacy papers.

Breton, who was out of town Tuesday and could not be reached for comment, was represented in court by his attorneys.

‘Ladened With Hearsay’

Commissioner Bauer told Breton’s attorneys he was concerned that Breton waited until two days before Curtis’ inauguration to file the lawsuit because he has had since November to file it. Bauer also said the lawsuit was “heavily ladened with hearsay and incompetent evidence.”

According to court documents, Breton believes that to allow Curtis to remain in office will have an “irreparable” effect on the new city. Curtis and Breton “have fundamental differences . . . and would take the city in different directions,” Breton declared in court documents.

“If there are variances in philosophies and political goals between the two candidates, it appears more of the electorate chose to vote for the defendant,” Bauer told attorneys for both sides, referring to Curtis, a Republican who received the second highest number of votes in the nonpartisan election and Breton, a Democrat who came in sixth.

Curtis said the incorporation would be “a bit dampened” by the court action. “I’m angry I’ve not been able to put this behind me prior to now.”

Curtis’ attorney, Dana W. Reed, said after the hearing, “This is pure politics. . . . It’s a decision to try to embarrass Mr. Curtis and the people of Mission Viejo.”

But Breton’s attorneys said they intend to see Curtis taken out of office.

“The key event today is we filed a lawsuit,” said Breton’s attorney, Philip R. Recht of the Los Angeles-based law firm of Manatt, Phelps, Rothenberg & Phillips. “What counts here is who wins the lawsuit. I’m sure it will be done in 90 days. There will be a winner and a loser. My goal is to win the war; this is just a preliminary skirmish.”

Curtis’ father and stepmother now live in the Mission Viejo condominium, Curtis said. Curtis’ wife and two children continued to live in Aegean Hills until two months ago, when Curtis and his wife bought a house in Mission Viejo.

Breton was an elected board member of the Mission Viejo Community Services District, an agency that provided some of the community’s services by collecting a portion of the property taxes.