BERKELEY -- Redrawing City Council district boundaries just got even more complex.

The city has sued itself in order to ask the courts to use the council district boundary lines for the November election that were approved by the City Council in December, but were the subject of a successful referendum the following month.

The city clerk is named as a defendant, but the actual opponents, named as "real parties in interest," are three councilmen -- Kriss Worthington, Jesse Arreguin and Max Anderson -- and several citizens, who sponsored the referendum.

The complaint filed April 3 in Alameda County Superior Court on behalf of the city by the San Leandro law firm Remcho, Johansen & Purcell, says the city clerk believes that, given the referendum, he should use the 2002 council boundaries for the November election.

The lawsuit contends the court, instead, should impose the district boundaries for the November election approved by the December ordinance, even though it was placed on hold after the successful referendum.

It calls for using those boundaries "to avoid violating the United States and California Constitution and the Berkeley City Charter, and ... provide certainty for voters, candidates and elections officials."

Referendum supporters, however, have engaged their own attorneys, who contend the council violated the Brown Act, the state's open meeting law, at its March 11 meeting, where the agenda addressed the issue of placing the referendum before the voters in June. The council approved placement in November, rather than June.


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Further, the supporters' attorneys say, the council voted to retain outside legal counsel without placing it on the agenda.

"The council's actions thus violated the Brown Act because the agenda did not identify either placement of the referendum on the November 2014 ballot or the hiring of outside counsel as potential actions by the Council," Richard Miadich of Olson Hagel & Fishburn, said in an April 4 letter to the city attorney, asking for "immediate action to remedy these violations of the law."

Miadich also alleged that the city violated its charter by placing the referendum before the voters in November and not, as the charter mandates, on "the next occurring regular statewide or general or special municipal election," which would have been June.

The $30,000 city contract with Remcho, Johansen & Purcell, dated Feb. 26, 2014, is for "Personal services -- legal advice re Redistricting Ordinance adopted by Council Feb. 25, 2014."

While the contract was dated Feb. 26, the council did not vote to engage outside legal services until two weeks later.

City spokesman Matthai Chakko explained in an email: "Our job is to be prepared and anticipate potential issues. Since these types of cases require a fast pace, the City Attorney retained outside counsel in case the City needed them on short notice."

Contacted for comment, Worthington called signing the contract before the council vote "outrageous and incredible."

"It looks like a political act, not an administrative act," he said. "That is so sad and disappointing that anyone would enter into such a contract before the City Council discussed or voted on it."

On other questions regarding the lawsuit, Chakko declined to comment for this story given "pending litigation," as did James Harrison of Remcho, Johansen & Purcell. Mayor Tom Bates' office referred this newspaper to the city attorney, who did not return requests for comment.

The boundaries for District 7, Worthington's district, are at the heart of the redistricting controversy. The December 2013 ordinance set new council boundaries both to equalize the number of residents in each district and to create one district consolidated around a special interest group -- students.

The debate between the council majority and the three council members supporting the referendum and named in the lawsuit has been principally over whether to include several blocks north of campus within a "student" district.

The December ordinance removes these blocks, where student co-ops traditionally support Worthington, who claims the intent of the approved ordinance is to remove progressives like himself from office.

Worthington said he would like a judge to review a variety of possible council district maps for the November elections.

"If they were going to the judge and said, 'here are all the plans, you pick one,' I would have no problem with that," he said.

Attorneys were set to be in court April 8 to set a schedule for hearing the lawsuit.

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