Castorena v. City of Los Angeles

• Decision Date: 29 October 1973
• Citation: 110 Cal.Rptr. 569,34 Cal.App.3d 901
• Court: California Court of Appeals Court of Appeals
• Parties: Pio C. CASTORENA et al., Petitioners, v. CITY OF LOS ANGELES, Respondent. Civ. 41084.

Page 569

110 Cal.Rptr. 569

34 Cal.App.3d 901

Pio C. CASTORENA et al., Petitioners, v. CITY OF LOS ANGELES, Respondent.

Civ. 41084.

Court of Appeal, Second District, Division 5, California.

Oct. 29, 1973.

Rehearing Denied Nov. 14, 1973.

Robert H. Perez, Arthur A. Corrales, Thomas Stanley, Model Cities Center of Law and Justice, Los Angeles, Armand Derfner, Lawyers' Committee for Civil Rights Under Law; Mario Obledo, San Francisco, Miguel Garcia, Pico Rivera, Joe C. Ortega, Herman Sillas, Jr., Mexican-American Legal Defense and Education Fund, Los Angeles, Stanley Wm. Levy, Stanton L. Stein, Beverly Hills, Bruce Warner, Michael Saphier, Los Angeles, Lawrence William Steinberg, Beverly Hills Bar Assn. Law Foundation, Beverly Hills, Rudolph A. Diaz, Los Angeles, for petitioners.

Laurence R. Sperber, ACLU Foundation of Southern Cal., Beverly Hills, Edmund G. Brown, Jr., Sacramento, amicus curiae, for petitioners.

Burt Pines, Roger Arnebergh, City Attys., Thomas C. Bonaventura, Asst. City Atty., for respondent.

KAUS, Presiding Justice.

In this original proceeding for a writ of mandate, petitioners seek to enjoin the City of Los Angeles ('City') from using a councilmanic redistricting plan adopted in September 1972. They also ask that we order the City to adopt a redistricting plan proposed by petitioners or any other 'CONSTITUTIONALLY VALID REAPPORTIONMENT PLAN.' we granted an alternative writ in January 1973. The City Council elections, in which the challenged districting plan was used, were held as scheduled in April 1973. ¹

BACKGROUND

In Calderon v. City of Los Angeles, 4 Cal.3d 251, 271, 93 Cal.Rptr. 361, 481 P.2d 489, filed March 2, 1971, our Supreme Court held that the City's charter provision for councilmanic districting based on registered voters, rather than population, was unconstitutional.

The City's charter (Art. II, § 6, subd. 2(a)) was then amended to provide:

'Between July 1 and September 15 of each tench year, commencing with the year 1972, the Council shall, by ordinance, which shall be effective upon publication, redistrict the City into fifteen (15) districts, . . . (containing) as nearly as practicable, one-fifteenth of the total population of the City of Los Angeles. . . .

'In 1973, the terms of those members of the Council elected from the odd districts shall commence. The terms of those members of the Council elected from the even numbered districts shall commence in 1975.'

Beginning in April 1972, petitioners became involved in the City Council's redistricting efforts. They submitted two preliminary plans and a final plan of their own, the so-called MALDEF plan. After some months of discussion and dispute, a redistricting plan (L.A. City Ordinance No. 143,900) was eventually passed on September 19 over the mayor's veto. It was published on September 22, 1972.

Petitioners' allegations and contentions are contained both in the petition and 200 pages of briefs. ² The City filed both a demurrer and an answer, a memorandum of points and authorities, and about 10 exhibits, consisting largely of counterdeclarations justifying the redistricting with respect to petitioners' contentions. Supplemental material has been submitted by both sides. Although the City's answer denies many of the allegations in the petition, we assume that petitioners' factual allegations are true. ³

PETITION

The petition is filed by various persons who live in the areas affected by the reapportionment, and by a grass-roots organization concerned with Mexican-American reapportionment problems. ('Chicanos for Fair Reapportionment.') ⁴ The petitioners purport to represent themselves and all other Chicanos living in the City. They allege:

The City Council is required by law to reapportion ⁵ the 15 councilmanic districts between July 15, 1972 and September 15, 1972.

The population of the City based on the 1970 census, was 2.8 million; the Chicano population was about 518,800, or 18.4 percent of the total. About half of the Chicano population lives in the east-central area of the City, often called the 'barrio.' ⁶

Chicano residents share a 'vital community of interest based on a common cultural heritage, traditions, and the Spanish language'; discrimination by the 'Anglo majority' ⁷ has forced upon them a community of interest in achieving equal opportunity; Chicanos are poorer than other groups; many of their objectives can be Chicanos were restricted in their access to the ballot for over 75 years; ⁹ previous City Councils, in apportioning councilmanic districts 'arbitrarily and discriminatorily dissected' Chicano negighborhoods, with the 'intent and effect of diluting' Chicano voting strength and making it 'almost impossible' for Chicanos in any one district to elect a councilman responsive to their interests. ¹⁰ As a direct and inevitable result of this discrimination, Chicanos are unrepresented in the City Council. In the past 72 years there has been only one Chicano on the City Council and there have been no other councilmen who adequately represent the views of the Chicano community.

achieved only through the legislative[34 Cal.App.3d 906] process. Because the community of interest shared by Chicanos is generally not shared by the 'dominant surrounding Anglo society,' Chicanos can achieve their legislative goals only if they have a meaningful opportunity to elect to the City Council persons who will be sensitive to the interests most important to the Chicano community. ⁸

One September 11, 1972, the City Council passed ordinance number 143,900, the redistricting plan challenged here; on September 15, 1972, the mayor vetoed the plan; on September 19, 1972, the City Council overrode the mayor's veto, and on September 22, 1972, the ordinance was published.

Until the adoption of the challenged redistricting plan, no City Council district had a majority of Chicanos. Under the previous districting plan, the maximum concentration of Chicanos was as follows: 41 percent (district 9), 38 percent (district 14), and 35 percent (district 4). ¹¹ It is impossible to draw more than one district with a Chicano population concentration of 60 percent or greater. The plan adopted by the City provides for one district with a 67 percent Chicano population (district 14) and one with a 30 percent Chicano population (district 4). ¹²

The petition continues: The California and United States constitutions require that City Council redistricting be carried out without constructing districts which dilute minority voting strength, and without regard to protecting incumbents. The City has refused to redistrict in a lawful manner; rather, 'the City has sought to perpetuate the status quo by again carving up large geographically compact Mexican-American neighborhoods and incorporating the pieces into arbitrarily drawn districts with heavy Anglo population.'

Petitioners also contend that the ordinance passed by the City Council is void because, contrary to the requirements of the Charter, it was not passed until September 19 and was not published until September 22, 1972.

Finally petitioners allege that the City's plan is invalid because the Chicano districts were even-numbered (4 and 14) rather than odd-numbered, which means that councilmanic elections for those districts will not be held until 1975. ¹³

PRELIMINARY MATTERS

Certain matters should be disposed of before evaluating petitioners' major contentions.

The April 1973 Election. When the petition was filed the April 1973 election had not been held. Today it is history. Even if petitioners' point regarding the even-numbering of districts 4 and 14 were well taken, it would not and should not follow that an invalid apportionment plan could not be used on an interim basis. (Ely v. Klahr (1971), 403 U.S. 108, 113--115, 91 S.Ct. 1803, 29 L.Ed.2d 352; Legislature v. Reinecke, 6 Cal.3d 595, 603, 99 Cal.Rptr. 481, 492 P.2d 385.) Petitioners' characterization of the statute of 'void' adds nothing to resolving the issue. Reapportionment plans are not budget appropriations, as was made clear in Reynolds v. Sims (1964), 377 U.S. 533, 585, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506: 'With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court's decree.'

Since the next election will involve districts 4 and 14, the issue of the validity of the City's plan with respect to the numbering of districts is moot. (Ely v. Klahr, Supra, 403 U.S. 108, 114, 91 S.Ct. 1803, 29 L.Ed.2d 352.)

The Alleged Lateness of the Redistricting Ordinance. Petitioners argue, in effect, that the City Council missed the boat because its ordinance was not passed over the mayor's veto until September 19 and was not published until September 22. The Charter is silent on what is to happen if the City Council fails to act within the time limits prescribed by it. 'The requirements of a statute are directory, not mandatory, unless means be provided for its enforcement.' (Gowanlock v. Turner, 42 Cal.2d 296, 301, 267 P.2d 310, 312.)

When the Supreme Court in Legislature v. Reinecke, 9 Cal.3d 166, 167, 107 Cal.Rptr. 18, 507 P.2d 626, gave the State Legislature one last chance to enact 'valid reapportionment measures,' it was years past the constitutional deadline for the enactment of such laws. (See Legislature v. Reinecke, Supra, 6 Cal.3d 595, 599, fn. 1, 99 Cal.Rptr. 481, 492 P.2d 385.) We cannot believe that the Supreme Court encouraged legislative action which, if petitioners are correct, it would have been forced to void.

Validity of MALDEF Plan. ¹⁴ The validity or desirability of the plan submitted by the petitioners--the so-called MALDEF plan--is not really the issue before this court. Rather, it is the constitutionality of the plan adopted by the City. The MALDEF plan is only discussed for the purpose...