Decisively losing a voting rights lawsuit, paying close to $1 million in legal bills and being hit with a punishing multi-million dollar award apparently won’t dissuade the Santa Clara City Council from pursuing an appeal of Judge Thomas Kuhnle’s ruling that the City’s former at-large election system violated the California Voting Rights Act.
The City isn’t just appealing last August’s ruling. It’s also appealing the remedy and the award, according to Richard Konda of the Asian Law Alliance, who said that the City’s attorney Steven Churchwell advised him of the City’s plans. To date the City has only filed an appeal of the ruling.
“Do they have an unlimited amount of money?” was Konda’s reaction to his conversation with Churchwell.
The answer is, of course, no. Santa Clara is heading into deficits in the near term, according to City financial reports presented at last month’s Council goal-setting meeting, as well as facing tens of millions in unfunded infrastructure needs and a growing unfunded pension liability upward of half a billion dollars.
Santa Clara is already on the hook for $4 million in this lawsuit: a $3.16 million award for the plaintiffs’ attorney fees and $850,000 for Churchwell’s fees. All indicators point to the legal meters continuing to tick upward at a similar rate if the City goes forward with its appeals.
Statewide, the median time for an appeal to move from notice of appeal to a published decision is currently 914 days, 2.5 years, according to the 2018 California Courts Statistics report. In San José’s Sixth District appeals court the median time for an appeal to work its way through the system is 803 days — 28 months — with 1,264 days — 3.5 years — marking the longest duration for an appeal in that court.
During that time the City will have to post an appeal bond that secures the award plus an additional 50 percent — a total of about $4.5 million — pending the outcome of the appeal. During the appeal’s duration the bond will accrue interest — in Los Angeles County the interest on an appeal bond is 10 percent. At a conservative rate, say 5 percent, that’s nearly another half million dollars compounded over the two years the appeal is likely to be in court.
Add to that additional court fees, legal bills and another award of legal costs to the plaintiffs if the City loses. Santa Clara paid Churchwell $720,000 in 2018 alone for his first-ever foray into CVRA litigation, and he’s been on the case since 2017. It’s not outside the bounds of probability that Santa Clara will be in for another $1 million in legal bills before the appeals are done.
If the City loses, as is probable, there will likely be an additional award to the plaintiffs. Even if the additional fees are less than the original award, a reasonable guess is that those will top another $1 million.
That makes a total tab of between $5 and $7 million. And that’s if the appeals are only in court two years. Another year would likely cost the City another $1 million.
The City must argue that the ruling, remedy and award were wrongly decided based on law and legal precedent and file new briefs to that effect. They can’t just re-litigate the case, and no new evidence or witnesses can be introduced. Likewise, the plaintiffs must also file briefs arguing that the case, remedy and award were correctly decided.
The likelihood of the City winning on appeal is vanishingly small. No California city has ever won a CVRA case since the law was passed almost 20 years ago. The two cases that went to appeal — Palmdale and Modesto — also lost on appeal.
The Santa Clara City Attorney’s office did not respond to a request for comment.