Judge Orders S.D. Council to Testify on Remap Plan : Elections: Decision places city’s political future in limbo. Chicano Federation, which will question council members, hails it as a victory.

Placing the city’s political future in legal limbo, a federal judge Friday ordered City Council members and others to testify about a controversial redistricting plan that opponents argue unconstitutionally dilutes minority voting rights.

Calling his order the first step toward what could be a “difficult, expensive and time-consuming” trial, U.S. District Judge John Rhoades ruled that attorneys for the Chicano Federation of San Diego County may question council members, their staff members and others publicly under oath about the council redistricting plan approved this week.

Chicano Federation lawyers hope to use the sworn depositions, which could begin as early as next week, to prove that the council violated a settlement agreement in the federation’s voting-rights lawsuit against the city, as well as that the redistricting map itself is unconstitutional. Although the map creates the city’s first Latino-majority council district, its critics complain it does too little to enhance minority political clout.

Later Friday, Chicano Federation attorney Michael Aguirre added yet another twist to the long-running dispute by returning to Rhoades’ courtroom to allege that Councilwoman Linda Bernhardt has illegally destroyed her appointment calendars. Those records, Aguirre said, could be vital in demonstrating how the redistricting map evolved--a central question in determining whether its passage violated the settlement pact.

Under City Atty. John Witt’s interpretation of state public records laws, elected city officials are required to preserve their calendars for two years--a policy that Bernhardt was unaware of, according to her attorney, David Lundin. Both Lundin and Bernhardt’s council staff said they did not know whether the councilwoman has discarded her calendars, as Aguirre said “confidential sources” had informed him. Bernhardt could not be reached for comment.

In issuing an order forbidding any such future destruction of records relating to redistricting, Rhoades emphasized that, if Bernhardt did, in fact, do so in the past, “I’d treat it very seriously.” Deliberate destruction of such records, city attorneys noted, could subject the offender to possible criminal sanctions.

Friday’s double hearings were the latest developments in the acrimonious political and legal battle that has careened between City Hall and federal courtrooms since early July.

As Rhoades’ first decision Friday made clear, unless the two sides show a greater willingness to compromise than they have, the legal status of the city’s redistricting plan could remain uncertain during months or even years of litigation.

Dramatizing that point, Rhoades went so far as to raise the specter of the 1991 council elections being set aside by a court’s finding that the redistricting map is illegal.

“If the plan should ultimately be held to be invalid . . . I would have to unscramble the proverbial egg, an undertaking I would not relish,” the judge told a packed courtroom during the one-hour hearing.

Although Rhoades’ 14-page order does not resolve the protracted debate, Chicano Federation leaders quickly hailed it as a significant preliminary victory in their bid to overturn the council’s redistricting map and replace it with one they feel better enhances minorities’ voting rights.

“It’s a victory for us because there was an opportunity for the whole case to go away,” Aguirre said. “We get to keep fighting. It’s not a 100% victory. But I’d rather have our side than theirs after today.”

Indeed, attorneys for the city and individual council members went into Friday’s hearing hoping for judicial approval of the redistricting map approved by a 5-3 council vote Monday. Instead, not only did Rhoades’ decision put the city on the defensive--primarily by granting Aguirre a critical legal tool, the depositions--but some of his most pointed remarks were directed at the council members’ lawyers.

Seeking to cast the unpleasant development in the best possible light, the council’s attorneys stressed that Rhoades’ order leaves the redistricting plan intact, albeit temporarily. Even if the depositions or other legal moves proceed, the attorneys said, they still expect to prevail by demonstrating the plan’s legality.

“The map is the map until a court turns it over,” said Assistant City Atty. Curtis Fitzpatrick. “That hasn’t happened yet.”

“There is no winner and no loser,” Lundin added. “We think the city ultimately will be the winner.”

By bringing the two sides closer to the mutually unpalatable prospect of a lengthy, costly trial, Rhoades’ ruling could provide added impetus for a settlement to avert that possibility. Though he implored both sides to work toward a compromise, Rhoades added that their recent actions leave him pessimistic about the chances of such an agreement.

Lamenting the inability to “resolve what is basically a legislative, not judicial, function,” Rhoades was sharply critical of both sides’ tactics, accusing both of being motivated more by “petty, parochial, personal priorities” than citywide interests. The attorneys’ voluminous briefs, the judge added, have consisted largely of “personal attacks and bombast . . . better left to the TV commercial.”

Although permitting the Chicano Federation to pursue its objections to the council’s map, Rhoades also made it clear that he will not support its request that he order the adoption of a rival redistricting plan proposed by a citizens advisory board.

“This court will not inject itself into the legislative and political arena by prescribing a ‘correct’ solution,” Rhoades said. “I will not prescribe a plan of my own.”

However, Rhoades outlined some other equally problematical potential remedies, including citing the council for contempt for failing to adhere to the settlement, “ordering the council to return to square one of its original deliberations,” or ordering the council to hire an expert to redraw the eight council districts’ lines.

As has been the case over the past two months, Rhoades’ order will continue to focus the redistricting debate more on the procedure by which the various proposed maps were developed than on their content. The theory behind that approach is that, before determining whether the council-passed map meets constitutional standards, it must first be shown that its consideration and approval satisfied the terms of the 1989 settlement agreement between the city and the Chicano Federation.

Under that agreement, the council agreed to establish the citizens advisory board to assist it with its decennial redistricting task and to provide minority groups with a meaningful voice in that process.

However, by summarily rejecting the board’s recommendation in favor of an alternative map offered by Councilman John Hartley, the council violated that pledge, Aguirre argues. Though Hartley’s plan was subsequently reviewed in several lengthy public hearings and underwent several minor modifications before its final approval, Chicano Federation officials contend that it falls short of meeting the city’s promise to maximize Latinos’ and blacks’ voting rights.

Defenders of the council’s map, however, stress that it, like the advisory board proposal, would increase the Latino population in the 8th District from the existing 40% to 51.9%--an increase they cite as evidence of the city’s commitment to the settlement’s overriding goal. Aguirre, though, insists that the districts’ boundaries be drawn on the basis of voting-age population rather than overall population--a criterion that would raise the Latino figure still higher.

At least two additional court hearings in the redistricting dispute are scheduled for next week, and, given the case’s recent history, that number likely will grow by week’s end. In the first, the opposing lawyers will meet with U.S. Magistrate Harry McCue on Tuesday to prepare a schedule for the depositions. Two days later, they will be back before Rhoades to renew their debate over whether the city has complied with or violated the settlement agreement.

Although Rhoades’ order would enable either side’s lawyers to question individuals involved in the redistricting issue under oath, most of the depositions presumably will be conducted by Aguirre. In an earlier brief, Aguirre indicated that he planned to question the five-member council majority that passed the redistricting map at issue, as well as council staff members and others believed to have contributed to the plan’s development.

Such sworn testimony by council members, city attorneys said, apparently would be the first of its kind since the Yellow Cab scandal of the early 1970s, in which then-Mayor Frank Curran, four council members, two county supervisors and a state assemblyman were charged with accepting bribes in exchange for approval of a taxi rate increase.

When Aguirre raised the possibility of sworn depositions earlier in the case, city attorneys suggested that “legislative privilege” might prohibit council members from being questioned about how and why they voted the way they did on redistricting. Questions about whether such a prerogative is properly invoked, Rhoades said, will be settled by McCue.

Giving a hint of how long the dispute could drag out, Rhoades also scheduled a status hearing for November. In addition, he speculated that “no matter what I do,” the case will likely be appealed perhaps as far as the U.S. Supreme Court--a scenario that could be the legal equivalent of putting an asterisk on future council elections.

With that possibility as a backdrop, both sides claim to hope to yet find a way to settle the issue short of a trial. Indeed, after Friday’s second hearing, one attorney on the other side of the case approached Aguirre and asked simply, “What do you want?”

“I think that shows who won today,” Aguirre said later. “When they start asking that, it’s a good sign.”