Irvine’s Special Election to Fill Vacancy in District 5 Under Fire For Unlawfulness
Irvine’s Special Election to fill former City Councilmember Larry Agran’s vacant seat this April is under fire by allegations of being unlawful. Paul Mitchell, Vice President of Political Data, Inc., published an article highlighting the opinions of Attorney General Rob Bonta and former Attorney General Kamala Harris, raising questions about the lawfulness of Irvine’s upcoming Special Election.
Irvine residents living in City Council District 5, which includes the neighborhoods of University Park, West Park, Woodbridge, and Rancho San Joaquin, will be voting to fill the City Council vacancy created by Councilmember Larry Agran being elected to Mayor this past November.
For background, in the 2022 General Election, Larry Agran was elected by the entire city’s electorate in an at-large election to a four year City Council seat. Agran was elected Mayor in the November 2024 General Election, leaving 2 years of his Council seat remaining, prompting a special election to fill the vacancy.
Background on Measure D – Council Expansion and Districting
The Irvine City Council approved a Charter Amendment to expand the City Council from five to seven members, and transition from at-large elections to six (6) by-district elections, which voters approved (Measure D) in the March 2024 Primary Election.
Irvine Municipal Code Article IV, Section 400
Councilmember Mike Carroll requested an unusual and allegedly unlawful provision stating that said if the mayor elected in 2024 comes from either districts 5 or 6, ONLY voters from one of those districts would elect their replacement in a special election in 2025, which is now being called into question. The language at issue is found in Article IV, Section 400, which states,
Notwithstanding the first sentence in the third paragraph of this Section 400, the second sentence in the first paragraph of Section 401, or the first sentence of the second paragraph of Section 401, the Mayor and Council members in office at the time this Charter provision takes effect shall continue in office until the expiration of their respective terms and until their successors are elected and qualified, so long as they remain legally registered voters and residents of the City. Recall proceedings, if any, of any Council member(s) serving the remainder of a term pursuant to this provision, and the election of a successor to such Council member(s) to complete that term, shall be conducted at large. If any Council seat held by a Council member serving the remainder of a term pursuant to this provision becomes vacant prior to the end of such term by means other than the recall, such Council seat shall be filled by appointment or election at large; provided, however, that if the vacating Council member resides in either the Council District designated 5 or the Council District designated 6 then, notwithstanding Section 403, a by-district election shall be held for the District where the vacating Council member resides at the earliest feasible date.
A similar questionable amendment regarding vacancies was prompted by former City Councilmember Anthony Kuo, a fellow Republican ally to Mike Carroll, requested a similarly unusual amendment before re-elected Mayor Don Wagner announced he was running for the Orange County Board of Supervisors (OCBS) seat in 2019, stating should there be a vacancy in the mayor’s seat, the mayor pro tem would automatically slide into the mayor’s seat without an appointment or Special Election, removing voters’ participation in the standard democratic process. As a result, Christina Shea filled the mayor’s seat, and Anthony Kuo was appointed mayor pro tem. See cityofirvine.org
Anthony Kuo has thrown his name into the race for Agran’s vacant City Council seat in District 5, leaving some wondering whether Carroll’s odd provision was in anticipation of Kuo’s candidacy, similar to Kuo’s amendment request for Wagner’s OCBS candidacy.
Opinion of Former Attorney General Kamala Harris
Former Attorney General Kamala Harris opined on questions relating to the filling of vacancies stating, “redrawn boundaries should not be used for a given office until the first regular election for that office.” The first regular election for District 5 residents is set to be in 2026. Therefore, according to Harris’ analysis, those who elected Councilmember Larry Agran in 2022 – all the voters throughout Irvine, not just those who reside in District 5 – are the ones who get to fill the vacancy.
Harris’ opinion further states:
Government Code section 36512, subdivision (b), states in pertinent part: “If a vacancy occurs in an elective office . . . , the council shall . . . fill the vacancy by appointment or call a special election to fill the vacancy. . . . A person appointed or elected to fill a vacancy holds office for the unexpired term of the former incumbent.” A sensible inference from this wording is that since the appointed council member “holds office for the unexpired term of the former incumbent,” the boundaries of the former incumbent should also be used for that same unexpired term.
And, while we have found no case law specifically addressing the question before us, as it pertains to city council districts, the California Supreme Court has addressed which geographical area to use for special elections to fill vacancies for United States representatives and California state senators after redistricting. In the first of these two cases, Sloan v. Donoghue, the Supreme Court held that when the Legislature changed the boundaries of a congressman’s district after his election, and then the congressman died during his term, “the special election to fill out the remaining years of the vacant seat was properly held in the district as it existed at the time of the dead legislator’s election.” The Court found this to be “the only practical and sound conclusion” and explained that it would result in “retaining the same proportionate Congressional representation under the old apportionment act and giving to the new apportionment act application to the selection of representatives for the Seventy-eighth and succeeding Congresses, as intended.”
Opinion of Attorney General Rob Bonta
Attorney General Rob Bonta also answered questions relating to filling vacancies. Though his opinion is regarding school boards, “the boundaries in effect at the time the member was elected apply for the purpose of filling the vacancy” regardless.
Bonta further states:
While those opinions both involved election statutes not relevant here, our conclusions in both opinions were supported by an observation that the relevant statutes focus on the term of office, rather than on the individual holding the office or on the effective date of the boundary change. We reasoned that if an appointed member holds office “for the unexpired term of the former incumbent,” then it makes sense to use the former boundaries for the same unexpired term. We elaborated that “it would be inharmonious if the boundaries that the appointed member represented were to change during the elective term of office, based on the fortuity that the elected incumbent happened to resign or was otherwise unable to serve out his or her full term.”
This conclusion accords with longstanding judicial precedent. In Sloan v. Donoghue, the Court of Appeal held that when the Legislature changed the boundaries of a congressional district, and then the incumbent died, the special election to fill the remainder of the term should be held in the district as constituted at the time of the original election. Legislature v. Reinecke resolved a similar issue in the context of California’s staggered election system for state senators after decennial reapportionment. Applying Sloan, the Court of Appeal decided that the senators who were elected before the boundaries changed were entitled to serve out their four-year terms, and that if vacancies occurred in those districts before the next regular election, they would be filled using the old boundaries.
Questions Regarding Irvine’s Legal Counsel
City Attorney Jeff Melching did not present any concerns regarding Councilmember Carroll’s provision during the City Council meetings discussing the special election or during the meetings to determine the parameters of Measure D. Unlike some other cities, ie: Huntington Beach, Long Beach, Redondo Beach, the City Attorney is appointed by the City Council and not voted in by the electorate, raising questions of objectivity.
Teri Sforza of the Orange County Register states in her opinion article, “Elected city attorneys and clerks and treasurers and police chiefs are scarce in California, and their modus operandi can be quite different from the professionals who answer to city councils rather than directly to voters.”
“City attorneys have a very important job: They’re the city’s lawyer, trying to keep it out of trouble, defending it in lawsuits, advising on what the city can and can’t do. The overwhelming majority of California city councils directly appoint the city attorney — in 469 of 482, according to the League of California Cities. And the vast majority of city attorneys are not city employees — about two-thirds of them — instead working for outside firms that contract with the city for legal services. Only one-third of city attorneys are actually on staff as city employees.” This is true of Irvine’s City Attorney Jeff Melching, who works for the firm Rutan & Tucker and whose appointment is determined by the City Council majority.
7 Comments
edmondsmeyerson
January 4, 2025 at 4:34 pmSo it should be a at large election but just for district 5? Please correct me if I am reading this wrong. If I am correct then everyone getting to vote for district 5’s council member seems way wrong.
Branda Lin
January 4, 2025 at 5:00 pmBased on the two cited Opinions by former AG Harris and AG Bonta, the conclusion is, the boundaries in effect at the time Larry Agran was elected to the City Council should apply for the purpose of filling the vacancy for that same seat. Another way to put it, the same voters who elected Larry Agran to the City Council should be allowed to vote for his replacement. Since Agran was elected to the City Council at-large, his vacant seat should also be elected at-large. Additionally, the Harris Opinion stated (from article), “redrawn boundaries should not be used for a given office until the first regular election for that office.” The first regular election for District 5 residents is set to be in 2026. Therefore, according to Harris’ analysis, those who elected Councilmember Larry Agran in 2022 should get to vote for his replacement this April of 2025. AG Bonta’s analysis stated, “A special election to fill a [ ] vacancy must be conducted according to the district boundaries as they existed when the term began, not according to the district boundaries adopted by intervening redistricting.”
edmondsmeyerson
January 4, 2025 at 10:00 pmSo these are just opinions by Harris and Bonta. The rules for elections were different when Agran won his 4 year council term. According to Harris and Bonta we should just ignore the new rules until 2026. I guess that would mean that anyone running for the remaining 2 years does not have to live in district 5? My opinion is that the new rules should apply. There is no good reason to stick to the old rules until 2026.
RobbyK
January 4, 2025 at 7:21 pmNice article, very informative. But ‘under fire’ is not an action item, is this correct? In other words, because of Mike Carroll’s unusual request last March, Irvine will proceed with their special election plan to put to vote strictly of District 5 boundary residents to replace Larry Agran for his remaining term as a District 5 city council member? And nothing stands in the way?
Please advise if tangible action items are available… perhaps contacting Attorney General Rob Bonta??
TammyKim
January 4, 2025 at 9:20 pmDee Fox, also known as Dee Ann Rosenberry and Jay Newman among other aliases, has relentlessly targeted me with baseless accusations and vitriol. Initially, her attacks were aimed at Mike and Farrah, but curiously, these ceased once Larry aligned with them. Now, acting as Larry’s enforcer, she continues to propagate falsehoods without restraint. It’s clear she devotes considerable time to crafting and spreading these lies, undermining honest discourse. Despite my efforts to extend attempts to sit down to resolve any concerns, she seems uninterested in dialogue or truth, preferring to attack rather than engage constructively. It’s important to recognize the destructive impact of such behavior on genuine discourse.
JB/CCW
January 5, 2025 at 2:44 am(Moderators, please delete my first comment on this post, I added it prematurely!)
You make a lot of good points here, and I’m glad you’re bringing this to more people’s eyes. However, I think it might be over exaggerated and potentially even false.
Firstly, to be fair, I definitely don’t think this was done out of malice. Voters approved a 7-member by-district city council in March 2024 (Measure D), so I assume this special election is being held specifically in District 5 to get that going as quickly as possible without having to wait until 2026. Also, it seems a little sensational to say this is “unlawfulness,” given that Rob Bonta says explicitly in his opinion that “The provision does not say whether old boundaries or new boundaries should apply to filling the vacant term.” It sounds like these people’s opinions are just that — opinions. Plus, most of the opinions/cases you cited, while compelling, relate to school districts and congressional districts, not necessarily city councils. That doesn’t mean the reasoning behind those decisions is unconvincing, it just further supports the defense that the City isn’t necessarily breaking the law.
There is also a case to be made that some redistricting situations are different from the one we’re facing in Irvine. To support the need for elected officials to retain the boundaries they were elected to even after redistricting, Paul Mitchell cities Sara Jacobs keeping her seat representing California’s 53rd Congressional District a year after it was erased in a redistricting because, if she had been forced out, the 53rd District would have gone without representation for a year. However, I feel this justification is unconvincing. In Irvine’s case, having a district election rather than an at-large election doesn’t strip anyone of representation, because no district is being erased. Furthermore, it’s not a redistricting committee that’s choosing what the districts look like and shaping the special election; it was the voters. Mitchell argues that Agran’s 2022 at-large election should be upheld with the reasoning that “The state redistricting commission or a county or city council can’t undo that voter’s right to a representative.” But can the voters? You could argue having the district election is more in line with the voters’ desires because of their approval of district elections. Bonta argues that old districts should apply in a special election following redistricting because existing statutes regarding filling vacancies try to “ensure that seats will continue to be filled in a predictable, patterned way, and that casual vacancies will not disrupt the pattern.” What if it’s the voters themselves, not the governing body or a death or a criminal proceeding, that are deciding to disrupt that pattern? This sort of case-by-case reasoning is why I’m less inclined to just accept the generalizations made around congressional districts (Sara Jacobs, Sloan v. Donoghue) and school districts (Rob Bonta); applying that logic here just seems very nitpicky.
Harris’s opinion was much more interesting to me because it looks like it addresses the actual policies that govern city council elections, and therefore the most relevant to Irvine. This stood out:
“Elections Code section 21606 speaks directly to council terms and elections after boundary changes. Subdivision (a) of this statute provides: “The term of office of any council member who has been elected and whose term of office has not expired shall not
be affected by any change in the boundaries of the district from which he or she was elected.” Subdivision (b) continues: “At the first election for council members in each city following adjustment of the boundaries of councilmanic districts, a council member shall be elected for each district under the readjusted district plan that has the same district number as a district whose incumbent’s term is due to expire.”
Harris’s opinion centers around supporting the relators’ claim that “the phrase ‘the first election’—i.e., the event that triggers the use of the ‘readjusted district plan’ in Elections Code section 21606, subdivision (b)—means the first regular election for a given council office after the boundary adjustments” and that a special election/appointment, such as the one given to Yxistian Gutierrez in 2013 in Moreno Valley after their city council’s redistricting, doesn’t count.
But after they were successful and Gutierrez was ousted (see “Judge finalizes ruling that Councilman must leave” and “State Supreme Court rejects ousted Councilman Yxstian Gutierrez’s appeal” in The Press-Enterprise), this is how that same law looks now (https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=ELEC§ionNum=21606):
” (a) The term of office of any council member who has been elected and whose term of office has not expired shall not be affected by any change in the boundaries of the district from which the council member was elected and that member shall continue to represent the constituents residing in the district boundaries from which the member was elected for the duration of that term of office. This section does not prevent a city council from assigning a city elected official or city official to provide constituent services to residents of an area that is temporarily not represented by a council member due to redistricting.
“(b) At the first election for council members in each city following adoption of the boundaries of council districts, excluding a special election to fill a vacancy or a recall election, a council member shall be elected for each district under the new district plan that has the same district number as a district whose incumbent’s term is due to expire. ***This subdivision does not apply when a city transitions from at-large to district-based elections.***”
I feel like this makes it pretty clear that the 2014 opinion by Kamala Harris does not apply to Irvine’s current election. Moreno Valley was filling a vacancy after districts were redrawn, whereas Irvine is filling a vacancy after a transition from at-large to by-district. Therefore, subdivision (b) doesn’t apply, therefore the special election is legal.
It makes sense: the City is undoubtedly holding the special election to fill the currently empty 7th seat on the city council, as is required under Government Code section 36512. It could’ve done that at-large, as Paul Mitchell is suggesting. But instead, it (by “it,” maybe Jeff Melching?) realized that there was nothing legally stopping the City from holding it by-district, so they decided to go forward with a District 5 election to accelerate the implementation of Measure D and follow the voters’ choice. They only had to let Councilmember Treseder (elected 2022) finish her full 4-year term because her term of office has not expired like Agran’s has, meaning she falls under subdivision (a).
I’m not a lawyer, and I’d really like to hear Jeff Melching’s take on this. But I just know there are some problems with using a decade-old opinion to support an argument: the law changes.
JB/CCW
January 5, 2025 at 1:53 pmForgot to mention this in my comment, but perhaps the reasoning I present differentiating Irvine’s special election from those with the redistricting of congressional and school districts is why the state provided this exception in the law for city councils transitioning from at-large to by-district elections.
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