Yakima’s appeal seeking to stay City Council elections has been turned back by the federal 9th Circuit Court of Appeals.
In a decision released Friday, the court said the city’s appeal should be heard by the federal district court judge who first ordered the elections.
And in a related development, that district court judge, Thomas Rice, ordered the city of Yakima to pay $1.8 million in legal costs and fees to the American Civil Liberties Union of Washington.
In a lawsuit brought against the city by the ACLU, Rice ordered the city to revamp its election process earlier this year after ruling Yakima’s voting system violated the federal Voting Rights Act by routinely suppressing the rights of Latinos. Yakima is appealing the judge’s earlier ruling in the 9th Circuit Court, but the appeal is expected to be delayed pending a decision in a Supreme Court case that could effectively overturn the lower court’s ruling.
Yakima’s defense attorney Francis Floyd said he believes the city won’t challenge the $1.8 million judgment. The ACLU had originally asked the court for $2.8 million, while Yakima’s legal team asserted the ACLU’s fees and costs shouldn’t exceed $500,000.
“I would say the city is very happy with Judge Rice’s ruling and would have no intention of appealing that,” said Floyd, a Seattle attorney contracted by the city.
Floyd said the fees order could still be nullified depending on what happens with the city’s appeal and the Supreme Court case it hangs on. That case, Evenwel v. Abbott out of Texas, could completely change the way local and state voting districts are drawn, particularly in cities such as Yakima with significant non-citizen immigrant populations.
Yakima has already paid more than $1 million defending the case since it was filed in August 2012. The ACLU brought the case on behalf of Yakima residents Rogelio Montes and Mateo Arteaga.
Few Yakima City Council members could be reached for reaction to the judge’s order Friday. Councilman Dave Ettl said he had not seen the court filings and would not comment.
Councilman Rick Ensey said the amount is still significant, but he’s happy to see it lowered.
“If the ACLU had knocked off $1 million to begin with, I think we would have just walked away from this thing,” Ensey said. “Now, other council members have their teeth stuck in this and I have no idea what they’re going to do.”
In the judge’s ruling Friday, Rice generally sided with the city’s argument that attorney fees should be based on normal attorney rates found in Central Washington rather than Seattle rates, which tend to be much higher. ACLU attorneys argued they were not aware of counsel in Yakima with adequate experience in voting rights law and that if they did exist, they would have been deterred by the unpopularity of the issue.
But Rice said the ACLU did not provide evidence that qualified attorneys weren’t available anywhere in the “local forum,” meaning the counties of Eastern Washington in which the court holds jurisdiction.
“Plaintiffs have failed to carry their burden to present evidence justifying departure from the local forum rule,” Rice wrote.
Rice also threw out one billing for training employees on a document management system as normal office overhead not associated with the case. Rice also dismissed the ACLU’s claims for costs involving “database maintenance” citing a lack of evidence that these costs couldn’t have been covered under other billings.
Yakima also argued the ACLU had no incentive to lower costs because its outside legal team was working on the case for free. But Rice said the city also fiercely sought to defend its elections system in court, and cannot complain that the ACLU worked just as vigorously.
“The city of Yakima chose to litigate this matter tenaciously, defending the entrenched electoral system at every turn,” Rice wrote. “Yakima had every right to do so, but it cannot now be heard to complain that an award commensurate to the time Plaintiffs necessarily spent in response to this vigorous defense was unreasonable.”
It was unclear Friday if the Yakima City Council would schedule a special meeting to discuss Friday’s court developments. The next council business meeting is scheduled for July 7.
A record 25 candidates are running for the seven Yakima City Council district seats this year, including eight Latino candidates, another record for a city election. Military and overseas ballots for the August primary already have been mailed, and local ballots will be mailed July 15.
If a court does order a stay of the elections, it’s unclear what would then happen. The primary is Aug. 4.