TUSTIN : Council Sued Over Election Decisions

In an unusual action Monday, City Clerk Mary Wynn sued the City Council in an attempt to force it to approve polling places, precincts and precinct boards for the scheduled April 10 election.

The suit, which names the four individual council members, the council as a body and the city, is necessary so that Wynn can prepare for the election, City Atty. James G. Rourke said. The council deadlocked last week on the election details, usually a routine matter. Councilmen John Kelly and Earl J. Prescott, who oppose holding the elections in April instead of in November, voted against a resolution to approve the election details.

The state election code and state law require City Council members to approve such details 29 days before the scheduled election, or March 12 in this case, said Robert Owen of the Costa Mesa law firm Rutan & Tucker, which is handling the suit for the city.

Superior Court Commissioner Julian Cimbaluk set a March 9 hearing date for the case, although Prescott and Kelly asked that the hearing be delayed until the city retains a defense attorney to represent them.

Prescott said that state law entitles him to a lawyer and pointed out that former Councilman Ronald B. Hoesterey was allowed to choose his own attorney when Prescott and Kelly filed a suit against him, contesting his residency.

Rourke said a decision has not been made about whether to hire defense attorneys for Prescott and Kelly.

“If the City Council decides to hire someone and pay for their defense, they can,” Owen said.

Prescott and Kelly say this latest suit is a good chance to settle the question of Hoesterey’s residency at the time of the Nov. 20 meeting, the date when the council majority voted to move elections to April. Although the suit by Prescott and Kelly was dismissed in January, the judge never ruled on the residency question.

Prescott and Kelly say that if the court rules that Hoesterey was not a resident at the time of his vote on the election change, the April 10 election date is invalid. But Owen said that will not be decided in this case.

“It takes a specific action to throw out a law,” Owen said, adding that the issue of Hoesterey’s residency is irrelevant in this case.