Tell the Irvine City Council To Repeal Its Unconstitutional Anti-LGBTQ Law!

“If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.” — Louis Brandeis, Justice of the United States Supreme Court

Please join us on July 14, 2020, when the Irvine City Council decides whether to approve the motion from Councilmembers Melissa Fox and Farrah N. Khan to repeal and remove a cruel and unconstitutional anti-LGBTQ ordinance that has been part of Irvine’s Municipal Code as Sec. 3-5-501 through 503 since 1989.

[UPDATE: Sign our Petition to Repeal and Remove Irvine’s Ant-LGBTQ Ordinance].

Most residents of Irvine do not know that our diverse and forward-thinking city has an ordinance on the books that specifically and explicitly denies anti-discrimination protection to people based on their sexual orientation.

In fact, most residents are shocked when they learn that the Irvine Municipal Code includes the following:

“Sec. 3-5-503. – City Council parameters.

Except as provided in section 3-5-502, the City Council shall not enact any City policy, law or ordinance that:

A.  Defines sexual orientation as a fundamental human right.

B.  Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.

C.  Provides preferential treatment or affirmative action for any person on the basis of their sexual orientation.”

We believe it is outrageous that this cruel and unconstitutional law is still on the books in Irvine! It’s long past time for it to be repealed and removed!

These provisions were added by Ord. No. 89-1, which was adopted as Measure N by 53% of the voters as an initiative on Nov. 7, 1989, overturning an Irvine Human Rights Ordinance enacted by the Council in July 1988 that prohibited discrimination based on sexual orientation.

The main proponent of the Measure N ballot initiative and the subsequent anti-LGBTQ ordinance was a group calling itself the “Irvine Values Coalition,” led by carwash-developer Michael Shea and his then-wife (and later Irvine mayor) Christina Shea.

According to Christina Shea, the initiative was needed because the earlier Human Rights ordinance gave “special legislative protection to the homosexual, bisexual and lesbian communities” and “homosexuality is characterized by a wide range of sexual perversions, varying degrees of promiscuity and a disproportionate percentage of sexually transmitted diseases.”

Irvine’s anti-LGBTQ ordinance violates both the Equal Protection Clause of the United States Constitution and California’s Unruh Civil Rights Act.

In Romer v. Evans, 517 U.S. 620 (1996), the U.S. Supreme Court ruled that the Equal Protection Clause of the Constitution prohibits a state from banning LGBTQ people from seeking “specific legal protection from injuries caused by discrimination.”

The facts of Romer v. Evans are as follows: after various cities and counties in Colorado enacted laws prohibiting discrimination based on sexual orientation, the State of Colorado, through a ballot initiative, amended its state constitution to “prohibit[] all legislative, executive or judicial action at any level of state or local government designed to protect . . . homosexual persons or gays and lesbians.”  As the Supreme Court explained, under the amendment, “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”

The Supreme Court declared that the Colorado constitutional amendment was based upon animosity toward homosexual people and lacked a rational relation to any legitimate governmental purpose.  Accordingly, the Court determined that Colorado’s constitutional amendment violated the Equal Protection Clause of the 5th Amendment of the U.S. Constitution, applicable to the states through the 14th Amendment.

Like the Colorado constitutional amendment that the Supreme Court invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance attempts to prohibit local government action “designed to protect . . . homosexual persons or gays and lesbians” [i.e., protects people based on “sexual orientation.”] and like the Colorado constitutional amendment invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination.” Accordingly, Romer v. Evans renders Irvine’s anti-LGBTQ ordinance unconstitutional.

Moreover, not only is Irvine’s anti-LGBTQ ordinance unconstitutional, it also clearly contradicts and is superseded by California’s Unruh Civil Rights Act, which explicitly prohibits discrimination against people based on “sexual orientation.”

Because state law supersedes any city law or local ordinance, the Unruh Civil Rights Act’s prohibition of discrimination on the basis of sexual orientation anywhere in California means that Irvine lacks the power to declare that “the City Council shall not enact any City policy, law or ordinance that: Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.”

We would like the see the eyes of the world on Irvine. 

We believe that the three others on the Irvine City Council — Mayor Christina Shea and Councilmembers Anthony Kuo and Mike Carroll — are far more likely to vote to repeal and remove this cruel and unconstitutional ordinance from the Municipal Code if they know that PEOPLE ARE WATCHING!

You can read more about the origins of this anti-LGBTQ ordinance — how it was promoted by (now Mayor) Christina Shea and her then-husband Michael Shea out of animosity and fear toward LBGTQ people and as a launching pad for their right-wing political careers — at Melissa Fox’s blog post HERE.

The Irvine City Attorney, who is an ally of Mayor Christina Shea, has stated that because this anti-LGBTQ ordinance was made law by a ballot initiative, it can only be repealed and removed by another ballot initiative. Our argument against this assertion is that this ordinance is clearly unconstitutional under many United States Supreme Court cases, as well as in violation of federal and state law; for this reason, it’s repeal and removal does not change the law in a way that requires another ballot measure.

In fact, the California Legislature dealt with this very issue in its repeal of the unconstitutional sections of Prop 187 by Senate Bill 396 (2014) by a majority vote of the Legislature without a vote of the entire electorate.  As the Judicial Committee of the California Senate noted, “Under existing law, California’s Constitution only authorizes the Legislature to amend or repeal initiative statutes by way of another statute that becomes effective only when approved by the electors –unless the initiative statute permits amendment or repeal without their approval. (Cal. Const., art. II, Sec. 10, subd. (c).) This bill [SB 396] seeks to repeal several state statutes implemented upon voter approval of Proposition 187, which generally prohibited the provision of various benefits to undocumented aliens. That proposition did not authorize the Legislature to amend or repeal its provisions without voter approval.”

Nevertheless, the Judicial Committee found that the Legislature had authority to repeal the unconstitutional sections of Prop 187 without a vote of the entire electorate. It reasoned that because the bill did not modify or repeal any provisions of Prop 187 except those that are unconstitutional and therefore unenforceable, it did not make any change in existing law. Accordingly, “SB 396 would not impermissibly repeal or amend the initiative; rather, it would merely update California statutes to accurately reflect current law.” The bill passed the Assembly and the Senate with only a single No vote.

The same circumstances exist here. Keeping this discriminatory language on the books, “causes confusion and harmful outcomes . . . [Therefore], it is fitting that [we] expressly acknowledge the detrimental impact of the discriminatory [language] by removing its stain from the state’s statutes.”  That is precisely what our City Council needs to do now, and what the precedent of SB 396 gives us clear authority to do: “expressly acknowledge the detrimental impact of the discriminatory [language of Sec. 3-5.501-503] by removing its stain from the [City’s Code.]”

In addition to being unconstitutional and in violation of superseding state laws, Irvine’s anti-LGBTQ ordinance is a cruel and embarrassing relic of a more prejudiced time.

Does Irvine want to remain on record as being one of the very few cities in America, and  indeed the world, that still officially discriminates against people based on their sexual orientation?  We hope not!

Please watch the Irvine City Council Meeting online on July 14.

Please ask your friends and family to watch.

And, crucially, LET THE IRVINE CITY COUNCIL KNOW THAT YOU’RE WATCHING THEM!

You can WATCH the meeting live on ICTV, Cox Communications local access channel 30, and AT&T U-verse channel 99, and livestreamed online at cityofirvine.org/ictv.

You can CONTACT the other three members of the Irvine City Council to tell them to REPEAL AND REMOVE IRVINE’S ANTI-LGBTQ ORDINANCE here:

Mayor Christina Shea:
christinashea@cityofirvine.org

Councilmember Anthony Kuo:
anthonykuo@cityofirvine.org

Councilmember Michael Carroll:
michaelcarroll@cityofirvine.org

You can SIGN OUR PETITION to Repeal and Remove Irvine’s Ant-LGBTQ Ordinance.

Please see our Facebook event page, hosted by Melissa Fox, Farrah N. Khan, Tammy Kim, and Lauren Johnson-Norris.

Rally for Flying the Pride Flag in Irvine! Tues., June 23, 2020 Time: 3:30 pm at Irvine City Hall Plaza!

June is Pride Month, when the State of California, and nations and cities around the world, stand with the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community as they declare their pride in who they are and who they love.

Show your support for flying the Pride Flag in Irvine by joining Irvine City Councilmembers Melissa Fox and Farrah N. Khan at a Rally at City Hall before Tuesday’s Irvine City Council Meeting! 

What: Rally for Flying the Pride Flag in Irvine
Where: Irvine City Hall, 1 Civic Center Plaza
Date: Tues., June 23, 2020
Time: 3:30 p.m. 

Click here to see the Facebook event page for the Rally.

Remember face coverings and social distancing is legally required in Irvine! Let’s keep each other safe while we make the world a better place!

Please also show your support for flying the Pride Flag in Irvine by contacting Mayor Christina Shea and the Irvine City Council to let them know. We need only one more vote! Contact the Irvine City Council: https://www.cityofirvine.org/city-council/contact-council

Note: At the following meeting on July 14th, we will be urging the Irvine City to repeal and remove its unconstitutional and cruel anti-LGBTQ ordinance!
https://melissafoxblog.com/2020/06/14/irvine-should-repeal-its-anti-lgbtq-ordinance-now/

Irvine Should Repeal Its Anti-LGBTQ Ordinance Now!

At the Tues., July 14, 2020, Irvine City Council meeting, I will move to repeal Irvine’s anti-LGBTQ ordinance [Sec. 3-5-501 through 503] as unconstitutional under the Equal Protection Clause of the United States Constitution and in violation of California’s Unruh Civil Rights Act, which explicitly prohibits discrimination against people based on “sexual orientation.”

Councilmember Farrah Khan has agreed to join me in putting this item on the July 14 Council agenda and in supporting this motion.

Most residents of Irvine do not know that our diverse and forward-thinking city has an ordinance on the books that specifically and explicitly denies anti-discrimination protection to people based on their sexual orientation.

In fact, most residents are shocked when they learn that the Irvine Municipal Code includes the following:

“Sec. 3-5-503. – City Council parameters.

Except as provided in section 3-5-502, the City Council shall not enact any City policy, law or ordinance that:

A.  Defines sexual orientation as a fundamental human right.

B.  Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.

C.  Provides preferential treatment or affirmative action for any person on the basis of their sexual orientation.”

These provisions were added by Ord. No. 89-1, which was adopted as Measure N by 53% of the voters as an initiative on Nov. 7, 1989, overturning an Irvine Human Rights Ordinance enacted by the Council in July 1988 that prohibited discrimination based on sexual orientation.

The main proponent of the Measure N ballot initiative and the subsequent anti-LGBTQ ordinance was a group calling itself the “Irvine Values Coalition,” led by carwash-developer Michael Shea and his then-wife (and later Irvine mayor) Christina Shea.

According to Christina Shea, the initiative was needed because the earlier Human Rights ordinance gave “special legislative protection to the homosexual, bisexual and lesbian communities” and “homosexuality is characterized by a wide range of sexual perversions, varying degrees of promiscuity and a disproportionate percentage of sexually transmitted diseases.”

This anti-LGBTQ ordinance violates both the Equal Protection Clause of the United States Constitution and California’s Unruh Civil Rights Act.

In Romer v. Evans, 517 U.S. 620 (1996), the U.S. Supreme Court ruled that the Equal Protection Clause of the Constitution prohibits a state from banning LGBTQ people from seeking “specific legal protection from injuries caused by discrimination.”

The facts of Romer v. Evans are as follows: after various cities and counties in Colorado enacted laws prohibiting discrimination based on sexual orientation, the State of Colorado, through a ballot initiative, amended its state constitution to “prohibit[] all legislative, executive or judicial action at any level of state or local government designed to protect . . . homosexual persons or gays and lesbians.”  As the Supreme Court explained, under the amendment, “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”

The Supreme Court declared that the Colorado constitutional amendment was based upon animosity toward homosexual people and lacked a rational relation to any legitimate governmental purpose.  Accordingly, the Court determined that Colorado’s constitutional amendment violated the Equal Protection Clause of the 5th Amendment of the U.S. Constitution, applicable to the states through the 14th Amendment.

Like the Colorado constitutional amendment that the Supreme Court invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance attempts to prohibit local government action “designed to protect . . . homosexual persons or gays and lesbians” [i.e., protects people based on “sexual orientation.”] and like the Colorado constitutional amendment invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination.”

Accordingly, Romer v. Evans renders Irvine’s anti-LGBTQ ordinance unconstitutional.

Moreover, not only is Irvine’s anti-LGBTQ ordinance unconstitutional, it also clearly contradicts and is superseded by California’s Unruh Civil Rights Act, which explicitly prohibits discrimination against people based on “sexual orientation.”

Because state law supersedes any city law or local ordinance, the Unruh Civil Rights Act’s prohibition of discrimination on the basis of sexual orientation anywhere in California means that Irvine lacks the power to declare that “the City Council shall not enact any City policy, law or ordinance that: Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.”

Irvine anti-LBGTQ initiative was one of several ballot measures across the nation in the late 1980s and early 1990s not only to seek to repeal existing anti-discrimination ordinances, but to proactively prohibit any local unit of government from ever passing such ordinances in the future.

Hence, the Irvine anti-LGBTQ ordinance includes provisions that purport to make it extremely difficult for a future Irvine City Council  to repeal it.  According to the ordinance, “Any law or ordinance pertaining to Section 3-5-503 may only be enacted by obtaining the approval of a majority of the voters of the City of Irvine voting on the measure at a regular or special election. Such a measure may only be placed on the ballot by citizen’s initiative or a two-thirds majority vote by the City Council.” [Sec. 3-5-502.].

The Supreme Court in Romer v. Evans made clear that it is an unconstitutional violation of the Equal Protection Clause to single out LGBTQ people for special burdens. including burdening them with special difficulties in enacting anti-discriminatory laws.  According, it is clear that the procedural provisions of Irvine’s anti-LGBTQ ordinance — requiring a 2/3 vote of the Council and then a ballot initiative for repeal — is again a violation of the Equal Protection Clause of the 5th and 14th Amendments because it is designed to make passage of protections against discrimination based on sexual orientation especially burdensome and difficult.

The California Legislature dealt with this very issue in its repeal of the unconstitutional sections of Prop 187 by Senate Bill 396 (2014) by a majority vote of the Legislature without a vote of the entire electorate.

As the Judicial Committee of the California Senate noted, “Under existing law, California’s Constitution only authorizes the Legislature to amend or repeal initiative statutes by way of another statute that becomes effective only when approved by the electors –unless the initiative statute permits amendment or repeal without their approval. (Cal. Const., art. II, Sec. 10, subd. (c).) This bill [SB 396] seeks to repeal several state statutes implemented upon voter approval of Proposition 187, which generally prohibited the provision of various benefits to undocumented aliens. That proposition did not authorize the Legislature to amend or repeal its provisions without voter approval.”

Nevertheless, the Judicial Committee found that the Legislature had authority to repeal the unconstitutional sections of Prop 187 without a vote of the entire electorate. It reasoned that because the bill did not modify or repeal any provisions of Prop 187 except those that are unconstitutional and therefore unenforceable, it did not make any change in existing law. Accordingly, “SB 396 would not impermissibly repeal or amend the initiative; rather, it would merely update California statutes to accurately reflect current law.” The bill passed the Assembly and the Senate with only a single No vote.

The same circumstances exist here.

Like the parts of Prop 187 repealed by a simple majority vote of the Legislature in 2014, the anti-LGBTQ ordinance is unconstitutional and enforceable. Like the unconstitutional parts of Prop 187, although Irvine’s anti-LGBTQ ordinance is unconstitutional and unenforceable, its language remains on the books. Keeping this discriminatory language on the books, “causes confusion and harmful outcomes . . . [Therefore], it is fitting that [we] expressly acknowledge the detrimental impact of the discriminatory [language] by removing its stain from the state’s statutes.”

That is what our City Council needs to do now, and what the precedent of SB 396 gives us clear authority to do: “expressly acknowledge the detrimental impact of the discriminatory [language of Sec. 3-5.501-503] by removing its stain from the [City’s Code.]”

In addition to being unconstitutional and in violation of superseding state laws, Irvine’s anti-LGBTQ ordinance is a cruel and embarrassing relic of a more prejudiced time.

Does Irvine want to remain on record as being one of the very few cities in America, and  indeed the world, that still officially discriminates against people based on their sexual orientation?  I hope not.

For all of these reasons, I will move to repeal Irvine’s anti-LGBTQ ordinance.  

As noted above, Councilmember Farrah Khan has agreed to join me in putting this item on the next Council agenda for Tues., July 14, 2020, and in supporting this motion.

If you agree with us, please tell Mayor Christina Shea and the rest of the Irvine City Council that Irvine’s anti-LGBTQ ordinance [Sec. 3-5-501 through 503] needs to be repealed NOW.

Contact the Mayor and the Irvine City Council by email here.

June is Pride Month: Support Flying the Pride Flag at Irvine City Hall!

June is Pride Month, when the State of California, and nations and cities around the world, stand with the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community as they declare their pride in who they are and who they love.

June holds historic significance for the LGBT community.  In 1969, the Stonewall Riots occurred in the New York City as a protest against the police department’s unfair targeting of the LGBT community. The Stonewall Riots led to political organizing that is considered to be the beginning of the modern LGBT civil rights movement. The following year, the first LGBT Pride Parade was held in New York City on the anniversary of the Stonewall Riots. Today, California has the largest LGBT population in the nation and is home to over forty LGBT Pride celebrations. 

As Governor Newsom stated recently in his Pride Month Proclamation, “The LGBTQ community has worked tirelessly for respect, equality and their very right to exist. Their battles have been fought in the courts, from marriage equality to demanding equal protection under the law.  While there has been remarkable progress towards acceptance and equality in recent years, members of the LGBTQ community in the United States and around the world still face an unacceptable level of discrimination and violence. This includes LGBTQ people who aren’t safe at home and those who do not have a home in which to stay.  We must push back against those who threaten the safety of LGBTQ Californians and challenge our progress. And we must continue to make the case that all human beings share something fundamental in common – all of us want to be loved, and all of us want to love. We cannot march in a parade this June, but we can and will stand with our LGBTQ family, friends and neighbors. Pride celebrations may look different this year, but in California, no matter the circumstances, we are proud to support our LGBTQ community’s right to live their lives out loud. As we celebrate Pride across the state, we must continue to demand equal rights for all to create a California for all.”

Last year, I asked the Irvine City Council to fly the Pride Flag from our Civic Center. In doing so, we would be joining many other cities, including Anaheim, Costa Mesa, Laguna Beach, and Fullerton, as well as the Orange County Fairgrounds, in flying the Pride Flag to recognize Pride Month by making it clear to all that our community is a place where LGBT people are visible, accepted, and welcome.

Unfortunately, although dozens of residents spoke at the meeting in support of flying the Pride Flag, the Council defeated the proposal and I was the only Councilmember to speak in favor of it. Councilmember Mike Carroll even called the Pride Flag “a spectacle of divisiveness.” 

In fact, in direct response to my motion to fly the Pride Flag, the Irvine City Council took the unprecedented step of voting to prohibit a council member from placing an item on the agenda without two other council members’ approval.  As the Orange County Register correctly stated in a powerful editorial opposing the Council’s action, “the transparent goal [was] to shut down the views of the political minority.”

Following the City Council’s rejection of my Pride Flag motion, I joined with numerous other Irvine residents in our own Pride Flag event in front of City Hall, celebrating LGBTQ Pride and diversity in Irvine.  I also placed a Pride Flag in front of my office at City Hall.

I said at the time that I had no intention of being silent.  Therefore, I will again bring a motion to the Irvine City Council to fly the Pride Flag from our Civic Center as a visible and prominent expression of our City’s commitment to equal rights for all and to ensure that our LGBTQ community can live their lives out loud.

Under the new rules imposed by the City Council majority in response to my Pride Flag motion last year, I asked Councilmember Farrah Khan to join me in placing this motion on the City Council agenda.  She told me she was working with other, Republican, councilmembers on a Pride-related agenda item.  When I asked her specifically whether the item included flying the Pride Flag, she did not respond.

I have now seen the agenda item, a proclamation, and it does not call for flying the Pride Flag from the Civic Center as a clear symbol of Irvine’s commitment. 

Accordingly, this year I will again bring a motion to fly the Pride Flag from our Irvine Civic Center.

Please show your support for flying the Pride Flag in Irvine by contacting Mayor Christina Shea and the Irvine City Council to let them know.  Click here for their email addresses.

Click here for a link to e-comment of the agenda item. Your comment is supposed to be read aloud by the clerk during the City Council meeting.

As Harvey Milk told us, “Hope will never be silent.”

UPDATE: Tues., June 9, 2020

I am deeply disappointed that no other member of the Council supported my motion to fly the Pride flag in Irvine during Pride. Not Mayor Christina Shea. Not Councilmembers Farrah Khan, Anthony Kuo, or Mike Carroll. What an embarrassment for our City. 

 

Defend Democracy. Tell the Irvine City Council: These are the Public’s Meetings!

City Councils are not private clubs. Public meetings in a real democracy should not be stage-managed by the political majority to prevent public discussion of issues that they want to avoid for their own political advantage.

Last July, while I was on a long-planned vacation to visit my son in Alaska, the Irvine City Council adopted a new anti-democratic policy that prohibits an item from being placed on the agenda unless the mayor or two city council members agree to do so.

As the Orange County Register correctly stated in a powerful editorial opposing the Council’s action, “the transparent goal is to shut down the views of the political minority.”

The new policy was in direct response to my proposal in June to fly the Gay Pride Flag from City Hall during Gay Pride Month. Although dozens of residents spoke at the meeting in support of flying the Pride Flag, the Council defeated the proposal and I was the only Councilmember to speak in favor of it.

In opposing this restrictive and anti-democratic agenda policy, the Register observed that “Public-meetings laws have a vital purpose in a free society. The public is supposed to be privy to the inner workings of government so they can witness the sausage-making legislative process in action, ugly and unappetizing as it can be. Unfortunately, many local officials act as if hearings are a show – a way to put their best foot forward before the citizenry.”

The Register also recognized that while the new rule was adopted specifically to silence me, the effect of the rule will be to silence all disagreement and dissent:

“Fox has previously discussed supposedly ‘divisive’ issues ranging from flying the LGBTQ flag at City Hall to creating a veterans’ cemetery near the Great Park. But this fracas isn’t about the particular issues any member might want to discuss, but about whether a duly elected official has the right to publicly discuss them. Councils are not private clubs . . . These are the public’s meetings and all officials, even minority voices, represent their constituencies. All elected bodies need to encourage wide-ranging discussions so the public can be part of the self-government process – and not just observers of a carefully crafted script. That’s the essence of representative democracy.”

At this Tuesday’s Irvine City Council meeting, the political majority will propose to extend this anti-democratic policy to the Great Park Board (composed of the members of the Irvine City Council) as well as to all City Commissions.

The public should not tolerate this extension of the current majority’s attack on representative democracy.

Please attend the Tuesday, September 10, 2019, Irvine City Council meeting and let them know that your City Council is not a private club. The meetings of the City Council, the Orange County Great Park, and Irvine City Commissions belong to the public and cannot be staged managed for political advantage. 

As the O.C. Register eloquently stated, “These are the public’s meetings and all officials, even minority voices, represent their constituencies. All elected bodies need to encourage wide-ranging discussions so the public can be part of the self-government process – and not just observers of a carefully crafted script. That’s the essence of representative democracy.”

As I stated in July, I have no intention of being silent.

And neither do you.

OC Register Editorial: Democracy Cannot be Stage-Managed by the Majority for their Own Convenience and Political Advantage

The Orange County Register’s editorial of July 17, 2019, correctly calls out and condemns the recent move by the Irvine City Council to prevent a Council Member from putting an item on the agenda unless two other members agree to do so.

As the Register states, “The transparent goal is to shut down the views of the political minority. Irvine officials said they want to stop ‘grandstanding,’ but one person’s grandstanding is another’s chance to raise vital concerns.”

The Register also recognizes that while the new rule was adopted specifically to silence me, the effect of the rule will be to silence all disagreement and dissent:

“Fox has previously discussed supposedly ‘divisive’ issues ranging from flying the LGBTQ flag at City Hall to creating a veterans’ cemetery near the Great Park. But this fracas isn’t about the particular issues any member might want to discuss, but about whether a duly elected official has the right to publicly discuss them. Councils are not private clubs . . . These are the public’s meetings and all officials, even minority voices, represent their constituencies. All elected bodies need to encourage wide-ranging discussions so the public can be part of the self-government process – and not just observers of a carefully crafted script. That’s the essence of representative democracy.”

Thank you to the OC Register for recognizing that public meetings in a real democracy cannot be stage-managed by the majority for their own convenience and political advantage.

As I’ve said before, Irvine’s current pro-Trump Council majority, again aided by its ostensibly Democratic ally, has made it clear that they are following in Irvine the very same playbook of obstruction and bullying used in Washington by Trump and Mitch McConnell, and with the same goal: to silence opposing voices.

But I have no intention of being silent.

And neither do you.

As with Trump and McConnell, we must persist and resist every day, and throw them out decisively in November 2020.

In the meantime, I’ll continue to raise my voice to speak for progressive policies and values — like respect for LGBTQ people, a state cemetery for our veterans, implementation of a serious plan to tackle climate change, more accessible child care, ending sexual violence and discrimination in the workplace, building affordable housing, and ensuring greater government transparency — as I was elected to do.

 

No, We Won’t Back Down

At its last meeting, the Irvine City Council took the unprecedented step of voting to prohibit a council member from placing an item on the agenda without two other council members’ approval.

Now, only the mayor will be allow to put an item on the agenda — a power that until last week had for decades belonged to every individual member of the City Council.

There have been many shifting majorities on the City Council over the years, but no other Council has gone so far to silence dissenting voices and points of view.

You can read about what took place in this excellent article in Voice of OC, including how this new rule is directed squarely at me in retaliation for proposing that Irvine fly the Pride Flag at City Hall, and how they made sure to propose the new rule — and then quickly enact it —  while I was on a long-planned trip to Alaska.

The truth is that Irvine’s Republican, pro-Trump Council majority — created by appointment in a back-room deal with its ostensibly Democratic ally and the developer FivePoint — has made it clear that they are following in Irvine the very same playbook of obstruction and bullying used in Washington by Trump and Mitch McConnell, and with the same goal: to silence opposing voices.

But I have no intention of being silent.

And neither do you.

As with Trump and McConnell, we must persist and resist every day.

And throw them out decisively in November 2020.

In the meantime, I’ll continue to raise my voice to speak for progressive policies and values — like respect for LGBTQ people, a state cemetery for our veterans, implementation of a serious plan to tackle climate change, more accessible child care, ending sexual violence and discrimination in the workplace, building affordable housing, and ensuring greater government transparency — as I was elected to do.

 

Democracy Requires an Election to Fill the Vacancy on the Irvine City Council

When Irvine Mayor Donald Wagner took office as an Orange County Supervisor, Mayor Pro Tem Christina Shea automatically took his place as Mayor.

As a result, there is now a vacancy on the Irvine City Council.

Democracy requires an election rather than an appointment to fill this vacancy.

According to law, a vacancy on the Irvine City Council can be filled by appointment by the remaining four members of the Council or by election by the vote of all the residents of Irvine.

Even if the City Council appoints a new member, the people can still override that appointment and demand an election by filling a petition signed by seven percent of the voters of the City.

Some argue that precedent and financial concerns support appointing the third-place runner-up in the previous election to the open seat on the Irvine City Council, rather than holding an election in which the people will choose the person to serve as their representative.

In fact, neither precedent nor principle support an appointment over the people’s choice as determined by an election.

Since the incorporation of Irvine as a City in 1971, there have been three times that a vacancy needed to be filled for a councilmember.

In the first instance, on October 15, 1985, Ralph A. “Ray” Catalano, a professor at UCI and a former planning commissioner, was appointed to serve the remaining three years of Councilmember David Sills term when Sills resigned from the Council to become a superior court judge.

Significantly, Catalano was not the next highest vote-getter in the previous election.  Catalano was not even a candidate in that election and had never run for office. The person who was the next highest vote-getter in the previous election, Mary Ann Gaido, was not appointed to the open seat. Catalano later explained that he was a political compromise choice and was picked by Sills as his successor.

That is the only time that the Irvine City Council has used an appointment by Councilmembers rather than an election by the people to fill a vacancy on the Council.  In every other case of a vacancy on the City Council, the seat has been filled by a vote of the people in a special election.

Our very first Irvine City Council election was a special election, held on December 21, 1971, when Irvine residents approved the City charter.

On November 6. 1990, a special election was held to fill the vacancy on the City Council when Councilmember Sally Anne Sheridan was elected Mayor the previous June. The next highest vote-getter from the previous election – again it was Mary Ann Gaido – was not appointed.  Bill Vardoulis, who had not run in the prior election, entered that race and won that special election.

On November 3, 1992, a special election was held to fill the vacancy on the City Council when Councilmember Art Bloomer resigned with two years remaining in his term.  The next highest vote getter from the year of Bloomer’s election – and it was again Mary Ann Gaido — was not appointed. Greg Smith won that special election.

Additional special elections have also been called numerous other times for various reasons, such as voting on charter amendments, measures and ordinances.

In fact, in the history of municipal elections in Irvine, special elections seem to be the rule rather than the exception.

Third-place candidates have been elected to the City Council under Measure A, which was adopted by the voters in 1991.

Measure A provides in that in City Council elections where one of the sitting Councilmembers is running for Mayor, the voters can cast three ballots for candidates for the office of City Council, so that “if a council member whose term of office has not yet expired is elected to the office of Mayor, the vacancy in the office of that Councilmember shall be filled by the candidate for Councilmember receiving the third highest number of votes.”

So far, this situation has happened four times.

On June 7, 1988, third-place City Council candidate Cameron Cosgrove was elected when Larry Agran was elected Mayor.

On November 7, 2000, third-place City Council candidate Beth Krom was elected when Larry Agran was elected Mayor.

On November 2, 2004, third-place City Council candidate Sukhee Kang was elected when Beth Krom was elected Mayor.

On November 4, 2008, third-place City Council candidate Larry Agran was elected when Sukhee Kang was elected Mayor.

Our current situation is very different from those cases.

In those cases, the voters were given the explicit opportunity to vote for three candidates for City Council.

As a result, the third-place candidate gained his or her seat on the City Council directly and democratically through the knowing vote of the people, not by appointment based on coming in third when the voters only had the choice of two.

Indeed, as I have shown, our City has NEVER appointed a Councilmember based on a third-place or next-highest finish in a previous election.

Some have argued that we should use this method of appointment – which we’ve never used before – simply in order to save the money that would need to be spent on an election.

First, it should be noted that other local cities are conducting special elections for councilmembers that could easily be coordinated by the Orange County Registrar with our own, thereby reducing the cost of the election.

Most importantly, however, I believe that democracy is worth the cost.

Democracy is far from perfect.

Many of us are convinced that we could pick better officials than those the people elect.

But that is not what our nation is about.

We elect our officials as our representatives; they are not appointed over us.

Democracy is messy, inefficient, and, yes, sometimes expensive.

In the words of Winston Churchill, “democracy is the worst form of Government except for all those other forms that have been tried from time to time.”

I agree.

We should fill the vacant seat on the City Council with the choice of the people as determined by an election.

UPDATE:

On Wednesday, April 3, 2019, the Irvine City Council officially declared a vacancy on the Council.

I have been informed by the city’s attorney and the city manager this declaration “starts the clock” regarding the process of filling the vacant council seat. We now have 60 days from April 3, 2019, to come to an agreement on the appointment of a new Councilmember or there will be an election.

Residents have 30 days from April 3, 2019, to file a petition signed by seven percent of Irvine’s registered voters to require an election regardless of what the council does.

UPDATE:

There is now a Republican proposal to circumvent this voting process by using an arbitrary ‘point proposal,’ under which “each Councilmember shall list three (3) applicants [candidates] in order of preference.” The candidates will be assigned the following point values: Top candidate 3 points, second candidate 2 points, and third candidate, 1 point.

Under this proposed procedure, the applicant receiving the most points will be appointed.

This proposed “point ” procedure:

(1) has never been used by the Irvine City Council to decide how to fill a council vacancy or to make any other appointment;
(2) violates the most crucial principle of a representative democracy — that the people’s representatives are selected by majority rule.

Arbitrarily assigning points to 1st, 2nd, and 3rd choice applicants, and then saying the applicant with the “most points” wins, is simply a way to avoid majority rule. It undermines the basic legitimacy of Irvine’s government.

Please attend the next Irvine City Council meeting on Tuesday, April 9, at approximately 3:00 p.m. to make sure your voices are heard.

UPDATE:

While the so-called “point” procedure was defeated at the last meeting, the question of whether to appoint or have an election is still not settled.

Please attend the next Irvine City Council meeting on Tuesday, April 23, where the Council will likely decide either on a process for appointment of the 5th council member to the vacant seat or deadlock to cause an election.

Closed session starts at 4:00 p.m. and the open meeting begins at 5:00 p.m. The agenda is packed so this may run late.

Let the voters have their say!