U.S. District Judge John S. Rhoades said Tuesday that he probably will order San Diego City Council members to submit to questioning by Chicano Federation attorneys who want to know the origin of a redistricting map that won council backing in a 5-4 vote July 9.
Rhoades, noting that "turnabout is fair play," also indicated that he would let council members' attorneys question members of the Redistricting Advisory Board, which submitted a competing redistricting plan to the council.
Rhoades will make a final decision on the public depositions during a 10 a.m. hearing next Tuesday. At an Aug. 15 hearing, Rhoades will determine if the city is making a good-faith effort to honor the agreement that settled a voting rights lawsuit brought by the federation against the city in 1988. The agreement requires that council districts be redrawn to provide a district that has a majority Latino population.
While Rhoades said he is likely to allow depositions, he stopped far short of granting the Chicano Federation's demand for a court order that would force the council to adopt the redistricting map drawn by the advisory board.
"At this moment, there is no judicial order pending," Rhoades told the dozen lawyers who gathered in the federal courthouse for Tuesday's hourlong meeting. "All of the balls are now in the city's court."
Rhoades, who praised the city for conducting a seven-hour public hearing Monday night, argued that legislative action, not court orders, is more likely to generate a legal and constitutional redistricting map.
"I am fearful that if I were to hold a hearing now, rather than waiting for the democratic process to take its course, that the heat generated (by litigation) would consume the entire redistricting process," Rhoades said.
However, Michael Aguirre, attorney for the Chicano Federation, argued that it was time for Rhoades to force the city to adopt the redistricting map the advisory board submitted to the council earlier this year.
"We have to take (legal) action now," he said. "They are not going to change their minds" and vote for the advisory board's map, he said.
Aguirre argued that any further delay would erode a Latino's chances of winning in the 1991 election in District 8.
But during Tuesday's hearing, Rhoades told Aguirre: "It's not my job to draw the map. . . . It would be in error if I were to enter the political arena."
While Rhoades refused to enter the map-drawing process, he repeatedly cautioned attorneys representing Council Members John Hartley, Linda Bernhardt, Bob Filner, Wes Pratt and Abbe Wolfsheimer--the five who supported the controversial council map--that a trial to determine if there were federal Voting Rights Act violations would be "very, very expensive . . . (to the) taxpayers who are going to pay the freight . . . and the image of San Diego."
Rhoades cautioned that any eventual finding that the city violated the 1965 Voting Rights Act when it endorsed the so-called "Hartley map" on July 9 would void the results of subsequent elections.
Rhoades, who spoke bluntly throughout the hearing, told the assembled attorneys to tell their City Council clients that "this is not a political game and they are in a court of law." And, when an attorney for three of the council members continued to press Rhoades for an explanation of why depositions were necessary, the judge curtly replied, "I ask the questions, I don't answer them."
The judge also directed Jack Katz, the city's senior chief deputy attorney, to "encourage" Wolfsheimer, who left last weekend for a European vacation, to "cut her visit short because this is important." Wolfsheimer is scheduled to return in time for a scheduled redistricting public hearing Aug. 13, a staff member said.
Wolfsheimer's absence was significant at Monday night's seven-hour public hearing at Golden Hall. During the meeting, which ended shortly after 2 a.m. Tuesday, nearly 100 San Diegans testified for or against the Hartley map and the advisory board's map. But without Wolfsheimer's vote, the marathon meeting ended with the council's eight members deadlocked 4 to 4 and unable to muster a majority for either of the two proposed maps.
The council also failed to address the redistricting vote during Tuesday's meeting, which ended about 5 p.m. when a majority of council members left the chambers for business or personal reasons. Acting Deputy Mayor Judy McCarty said the redistricting debate will continue at the regularly scheduled council meeting Tuesday.
Attorney Jack Lorenz, who represented Filner, Hartley and Bernhardt at Tuesday's court hearing, said his clients "are not ashamed" of their actions. But he argued that "to force them to be deposed at this point would be premature."
Filner, Bernhardt and Hartley, who were in Rhoades' courtroom Tuesday, all said during interviews that they would submit to depositions if so ordered by the judge Tuesday. The three, along with Pratt, praised Rhoades for determining that it was the council's job to draw the redistricting map.
Rhoades' decision to schedule his next status conference Aug. 15 means the council will be able to gather even more testimony before the court date, during a public hearing Aug. 13, Bernhardt said. "That's good, because San Diegans want to have a public process," she said.
But Pratt, Filner and Bernhardt attacked Mayor Maureen O'Connor for not allowing additional votes at the end of Tuesday's lengthy public hearing, which was attended by more than 500 San Diegans.
"I wanted to make some amendments to the Hartley map, but the mayor cut off discussion, cut off the debate," Pratt said. "I don't understand that because (on Tuesday) she's telling the federal judge that the council doesn't want to act."
Filner said it was "disheartening" for O'Connor to call for depositions when she was not allowing the council to do its job.
It was Brian D. Monaghan, O'Connor's private attorney, who first suggested that Rhoades allow depositions to proceed. Monaghan told Rhodes that the intense political battle over redistricting has created a "siege mentality" at City Hall that is preventing the council from going about its daily business.
Rhoades said it would be inappropriate for him to enter the map-drawing debate at this time, because there is no evidence of a Voting Rights Act violation and because the city has not yet officially adopted any map.
But he told council members and the Chicano Federation that he would only step in if, at some point, there was evidence that the city had adopted a redistricting map that was "illegal or unconstitutional." Rhoades also cautioned the council to give thought to the "appearance" of wrongdoing.
"Regardless of whether the people were shut out, or whether the members of the council who presented the Hartley plan on July 9, gave the required notice, the perception of the public that they were not privy to what was going on . . . made the whole process suspect," Rhoades said in a 10-page memorandum that he read to the attorneys during Tuesday's hearing.
While the process might prove to have been "rational and good . . . the perception of closed-door activity was there, and (the court's involvement) . . . was to open the process to the public."
"I'm very interested to know the background of how, why and when the Hartley plan was approved," Rhoades said.
But the judge also said the federal courthouse was not the proper venue for those with allegations that the five-member council majority violated the state's Brown Act, which prohibits five or more council members from holding private meetings to discuss specific kinds of issues. Rhoades said that Brown Act complaints should be directed to the San Diego County district attorney, the state attorney general or the county grand jury.