Luna et al v. County of Kern et al

Filing 208

ORDER AND FINAL JUDGMENT APPROVING AGREEMENT FOR STIPULATED ORDER, SETTLEMENT & RELEASE OF CLAIMS signed by District Judge Dale A. Drozd on April 11, 2018. (Doc. No. 206)(Munoz, I)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OSCAR LUNA, et al.,

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No. 1:16-cv-00568-DAD-JLT

Plaintiffs,
v.
COUNTY OF KERN, et al.,

ORDER AND FINAL JUDGMENT
APPROVING AGREEMENT FOR
STIPULATED ORDER, SETTLEMENT &
RELEASE OF CLAIMS

Defendants.
(Doc. No. 206)
Following trial in this matter, this court found that Kern County’s 2011 redistricting plan

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for the election of the members of the County Board of Supervisors violated Section 2 of the

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Voting Rights Act, 42 U.S.C. § 1973, for the reasons set out in the court’s February 23, 2018

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findings of fact and conclusions of law. (Doc. No. 188.)

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Thereafter, following a status conference before the undersigned, the parties reached a

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settlement with respect to the remaining issues which would otherwise be resolved in the

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remedial phase of this litigation. (Doc. No. 206.) Having reviewed the parties’ moving papers,

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the Agreement for Stipulated Order, and the Settlement & Release of Claims between the parties,

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and good cause having been shown, the court finds as follows:

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1. The Agreement for Stipulated Order, Settlement & Release of Claims (“the

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Agreement”), attached hereto as Exhibit 1, is approved as a fair, adequate, and

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reasonable remedy for the violation previously found by the court in this action;
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2. The Interim Redistricting Plan, attached to the Agreement as Exhibit A, is to be

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employed in the next two elections for the Kern County Board of Supervisors, and is

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adequate and necessary to remedy the violation of Section 2 of the Voting Rights Act

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found by this court in its findings of fact and conclusions of law entered in this case on

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February 23, 2018. The parties agree, and the court finds, that the Interim

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Redistricting Plan comports with traditional redistricting principles and constitutional

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constraints, provides a political process that is equally open to voters of all races and

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ethnic origins in Kern County, and reasonably allows Latino voters an opportunity to

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elect candidates of choice in two of the five supervisorial districts in the Interim

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Redistricting Plan. The court has given proper deference to the legislative

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prerogatives of the Kern County Board of Supervisors, who approved the plan

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contained in the Agreement; and

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3. The court hereby specifically incorporates the terms of the Agreement, paragraphs 1–

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10, into this order, and retains jurisdiction to enforce the terms of the Agreement until

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the November 6, 2018 supervisorial elections are certified in accordance with state

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law.

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IT IS SO ORDERED.
Dated:

April 11, 2018
UNITED STATES DISTRICT JUDGE

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EXHIBIT 1

AGREEMENT FOR
STIPULATED ORDE,R, SETTLEMENT & RELEASE OF CLAIMS
LI-INA ET AL. V. COUNTY OF KERN, ET AL.

This agreement is between Plaintiffs Oscar Luna, Alicia Puentes, Dorothy
Yelazquez and Gary Rodriguez, ("Plaintiffs" herein), and Defendants County of
Kem and the Kern County Board of Supervisors ("County Defendants" herein),
who are the parties in a lawsuit filed in the Eastern District of California entitled,
Luna et al. v. County of Kern, et al., Case #1:16-cv-00568-DAD-JLT ("the case"
or "the lawsuit" herein). Plaintiffs and County Defendant are jointly referred to as
"Parties," herein.
WHEREAS, at a status conference on March 6,2018, Judge Drozd ordered that
the parties participate in a settlement conference on March 28,2018, presided over
by Magistrate Judge Jennifer L. Thurston in an attempt to resolve the remedial
phase of this case (Dkt. #193); and
WHEREAS, the parties appeared at the settlement conference on March28,2018,
and they negotiated in good faith throughout the day, resulting in terms of an
offer; and

WHEREAS, on March 28, 2018, Judge Thurston ordered that the parties
participate in a status conference at2 p.m. on March 30, 2018; and
WHEREAS,

it is the desire of the parties to resolve all remaining

issues

in this

case,

NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS AND FIIRTHER
AGREE AND STIPULATE THAT AN ORDER AND FINAL JUDGMENT
CONTAINING THE TERMS SET FORTH IN PARAGRAPHS I.O THROUGH
1O.O OF THIS AGREEMENT MAY BE ENTERED AGAINST KERN
COUNTY AND IN FAVOR OF PLAINTIFFS.

1.0

2011 Redistrictine Plan: Defendant County of Kern shall not use the 2011

redistricting plan contained in Chapter 2.06 of the Kem County Ordinance Code
for any further elections for a seat on the Board of Supervisors.

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2.0

Interim Redistricting Plan: Further elections for the Board of Supervisors
through 2020 shall be held in the districts reflected in the map attached hereto as
Exhibit A. In the process of implementing the districts reflected in Exhibit A, the
County Engineer or County Elections Official may amend the district boundaries
to correct or adjust technical effors or defects, provided that the parties agree such
corrections or adjustments shall not materially affect the demographic
characteristics of the districts. The County Surveyor or the County Elections
Official shall advise County Counsel of any such corrections or adjustments that
might be necessary to implement the map. County Counsel will give notice to
Plaintifß of any change in the demographic characteristics of the districts
necessitated by the corrections or adjustment. Plaintiffs will respond within 24
hours following notice, to agree or object to the demographic changes, and will in
good faith approve any changes that do not materially affect the demographic
characteristics of the districts.
The parties agree that the Interim Redistricting Plan is adequate and necessary to
remedy the violation of Section 2 of the Voting Rights Act found by this court in

its Findings of Fact and Conclusions of Law entered in this case on February 23,
2018. The parties further agree that the plan comports with traditional
redistricting principles, and provides a political process that is equally open to
voters of all races and ethnic origins in Kern County, and reasonably allows Latino
voters an opportunity to elect candidates of choice in two of the five Supervisorial
districts in the plan.

3.0

June 2018 Supervisorial Electran$: The elections scheduled for June 2018 in

Supervisorial Districts 2 and 3 shall be cancelled

4.0

November 2018 Suoervisorial Elections: S upervisorial elections shall be
held in Districts 2, 3, and 4 on November 6,2018, using the Supervisorial District
boundaries reflected in the map attached hereto as Exhibit A. The Supervisorial
Elections in District 2,3, and 4 in November 2018 shall be plurality-win. There
will be no run-off. Subsequent elections for these seats shall be conducted in
accordance with California state law governing the election of county supervisors.

5.0

Two-Year Term: The November 6,2018, Election in Supervisorial District 4
shall be for a two-year term. The term of the current District 4 incumbent which
was scheduled to end in 2020 shall be truncated by two years. Subsequent

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elections for that seat beginning

in 2020 shall be for four-year terms as provided

by California law.

6.0

Oualified Candidates and Residencv Requirement: Candidates who have
already been certified as qualified for the June 2018 ballot in the Supervisorial
District 2 and Supervisorial District 3 elections shall be deemed qualif,red for the
November 2018 election in those districts. If any candidates who have qualified
for the ballot in Districts 2 and 3 are moved out of the district under the
Supervisorial District boundaries reflected in Exhibit A, the residency requirement
for these candidates to run for election will be waived; but in the event one of
these candidates is elected, that candidate must move into the district he or she
represents before taking office. Failure of such candidate timely to establish
residency in the district where elected shall create a vacaîcy to be filled in
accordance with law.

7.0

In-Lieu Petition Period: The in-lieu filing period for candidates running for
election in Districts 2, 3, and 4 shall open on July 2,2018, and run through July
27,2018. The period for circulating nomination papers and filing of the
declaration of candidacy for Districts 2,3 and 4 shall be as provided in state law.

8.0

in all other respects the
November 6,2018, supervisorial elections shall be conducted in accordance with
General F,lection Law: Except as set forth above,

1aw.

9.0

Jurisdiction: The court shall retain jurisdiction over this case until the
November 6,2018, supervisorial elections are certified in accordance with law.

10.0 Attorneys' Fees: Defendant County of Kern shall pay Plaintiffs, in
accordance with instructions received from Plaintiffs' attorneys, the sum of three
million dollars ($3,000,000) in full and complete satisfaction of any and all claims
they may have for payment of attorneys' fees, costs, expert fees, or any other
expenses with regard to this case. Payment shall be made by Defendant County of
Kern by check payable to the Mexican American Legal Defense and Educational
Fund within thirty (30) days after execution of the Agreement. The Parties will
bear its/herlhis/their own costs, expenses and attorneys' fees of whatever nature or
cause that are incurred after execution of this Agreement.

I 1.0 Dismissal of Individual Defendants: The individual defendants in this action

are Mick Gleason, Zack Scrivner, Mike Maggard, David Couch, Leticia Perez,
John Nilon, and Mary B. Bedard. Each is sued in his or her official capacity only.

be dismissed from this action with

Each

of the individual

12.0

Release: In return for the mutual promises and other consideration provided

defendants shall
prejudice by no later than April 6,2018.

in this Agreement, Plaintiffs, for themselves and their past, present or future heirs,
beneficiaries, executors, administrators, off,tcers, directors, agents, partners,
successors and assigns ("Releasors"), do hereby fully release, acquit, waive and
forever discharge Defendants and its past, present or future board members,
elected officials, administrators, officers, employees, agents, successors and
assigns ("Releasees"), from any and all claims, actions, causes of action, factual
allegations, demands (including without limitation demands for equitable and
injunctive relief), debts, damages, costs, expenses including expert fees, losses, or
attorney's fees of whatever nature involving the County's 2011 redistricting plan,
whether or not known, suspected or claimed arising out of, based on, or in any
way related to the facts alleged (or facts that could have been alleged) in the
Complaint filed in the lawsuit, Section 2 of the federal Voting Rights Act, of the
Constitution of the United States of the Constitution of the State of California,
which Claims the Releasors have or may have against the Releasees, except for
rights to seek enforcement of this Agreement. In this Paragraph, the conjunctive
includes the disjunctive.

13.0 Exoress Waiver of All Claims

rler California Civil Code Section 1542

It is further understood and agreed that this Agreement extends to all of the abovedescribed Claims and potential Claims, and that all rights under California Civil
Code ç 1542 are hereby expressly waived by Plaintiffs for themselves and the
other Releasors with respect to all such Claims. Section 1542 provides as follows:

release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release. which if known bv him must have materiallv affected his

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settlement with the debtor."

Notwithstanding these provisions of Section 1542, Plaintiffs and Defendant
expressly acknowledge that this Agreement is intended to include in its effect,

without limitation, all Claims based on the facts alleged (or that could have been
alleged) in the Complaint in this lawsuit, which they do not know or suspect to
exist in their favor at the time of execution hereof and that the settlement reflected
in this Agreement contemplates the extinguishment of all such Claims.

14.0 Intemretation: The interpretation of this Agreement shall be governed by
the laws of the State of California and any applicable laws of the United States.
This Agreement shall be construed as though jointly prepared by the Parties and
any uncertainty or ambiguity shall not be construed against any one Party.

15.0 Execution in Counterparts/ Electronic Signatures. This Agreement may be
executed in counterparts, and facsimile or scanned signatures will have the same
force and effect as the original, and consistent with the local rules of the Eastern
District of California, electronic signatures shall suff,rce.

16.0 Entire Agreement. The Parties acknowledge that no representations,
inducements, promises or agreements, oral or otherwise, have been made by any
Party or anyone acting on behalf of a Party which are not embodied herein, and
that no other agreement, representation, inducement or promise not contained in
this Agreement shall be valid or binding. Any modif,rcation, waiver or amendment
of this Agreement will be effective only if it is in writing and signed by the Party
to be charged.

17.0 Reoresentation by Counsel. Each of the Parties expressly acknowledges and
represents that hel she/ it has been represented by counsel in the negotiations
culminating in this Agreement. Each of the Parties has read this Agreement,
reviewed the same with counsel, and fully understands the meaning and effect of
each and every provision of this Agreement, in particular the meaning and effect
of the releases and the waiver of rights under California Civil Code $ 1542.
Signatures of Plaintiffs

Dated: ô3 -

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Oscar Luna

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ignatures of Plaintiffs

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Dated:
Oscar Luna

Dated:

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Puentes

Dated

Dorothy Yelazquez

Dated
Gary Rodriguez

Signatures of Defendant:

County of Kern

Dated

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MarkNations, Kern County Counsel

Approval as to Form

MALDEF

Dated:

Denise Hulett
Attorneys for Plaintiffs

OFFICE OF KERN COUNTY
COUNSEL

Dated:

By:

tututtNutiott@
Attorneys for Defendants

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Dated:

Alicia Puentes

Dated: n I

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Dated:

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Gary

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ignatures of Defendant:

County of Kern

Dated:

By
Kern

Counsel

Approval as to Form:
Dated:

3l 3o Ir (

Denise
Attorneys for Plaintiffs

OFFICE OF KERN COUNTY
CO

Dated:

By
ty Counsel
ations, Kern
Attorneys for Defendants

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INTERIM PLAN DEMOGRAPHICS

District

Population
(2010)

Deviation
(No
Prisons)

%
Deviation
(No
Prisons)

% LCVAP
2009
ACS

% LCVAP
2016
ACS

% Latino
Registration
Share –
2014
General
Election

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163,243

1,222

0.75%

13.9%

18.3%

13.4%

2

161,210

-811

-0.50%

21.8%

28.3%

22.9%

3

168,194

6,173

3.81%

23.8%

31.1%

25.0%

4

160,077

-1,944

-1.20%

59.9%

68.1%

64.1%

5

157,383

-4,638

-2.86%

50.2%

63.0%

57.9%

ACS – U.S. Census, American Community Survey