Big costs, heavy hitters in ACLU suit against Yakima

Aug. 10--Meet Stephan Thernstrom, Yakima's$151,900 man.

The Harvard University professor emeritus of history and his wife, Abigail, have a decades-long career as conservative analysts of racial inequality in the United States. They argue -- in numerous books, articles and lectures -- that election data over time have shown a steady trend against racially polarized voting, and that voting districts drawn to promote the interests of ethnic minorities impede effective democracy.

Thernstrom has been paid to testify in 27 federal court cases across 10 states in the course of his career, but no entity has paid him more than Yakima did in its ongoing effort to defeat an American Civil Liberties Union lawsuit that would force the city to elect all City Council members by district.

The ACLU says a new system is needed to give fair representation to the city's Latino population, and Yakima so far has been willing to foot the growing price tag to prove that all of the city's voters are well represented.

Piling on fees to attorneys and other expert witnesses, the city has paid $743,347 so far to defend the case since the ACLU filed suit in August 2012 on behalf of former City Council candidate Rogelio Montes and resident Mateo Arteaga.

Litigation expenses are typically paid by the city's insurance pool, but Yakima's policy doesn't cover expenses in cases such as this because the plaintiffs aren't asking for monetary damages; they seek a change in the election system.

Costs could skyrocket if the city loses the case. The ACLU's attorneys could seek legal fees from the city, which would have to come from the city's coffers because its insurance pool already declined to cover the case.

As costs mount -- attorney fees for July alone were more than $38,000 -- Yakima's outside legal team blames the ACLU for part of the high cost. Francis Floyd, an attorney from the Seattle law firm Floyd, Pflueger & Ringer contracted by the city to defend the case, said the ACLU has "turned the city upside down" seeking evidence in the case.

The city has produced more than 340,000 pages of documents in the case and more than 50 people have been deposed, including the current City Council, according to court records.

"Aggressive litigation tactics by the plaintiff necessarily escalate the cost of litigation," said Floyd, whose firm has been paid $464,724.26 by the city so far in the case.

ACLU of Washington spokesman Doug Honig called that a mischaracterization.

"Civil rights litigation is complex, and the ACLU has engaged in routine fact discovery, as has the city of Yakima," Honig said.

Yakima has a history of expensive litigation, including a recent lawsuit it filed against a contractor accused of botching plans for the Lincoln Avenue underpass, leading to $4 million in cost overruns. The city received a $1.35 million settlement in May, which more than covered its litigation costs of $804,694.

And in the 1990s, it paid more than $2 million to a Seattle attorney it hired to represent the city in years of litigation surrounding the development of the West Valley Wal-Mart.

In 2011, 58 percent of city voters rejected a ballot initiative to redistrict the city in a way similar to what the ACLU proposes.

Invoices provided to the Yakima Herald-Republic by the city are heavily redacted to protect legal strategy. The invoices only show the total amounts charged, but don't list the specific services provided by attorneys.

Like the city, ACLU representatives declined to discuss specifics in the case because it is still pending. But the low profile around the litigation so far belies a heavy-hitting legal fight with historic implications.

"This is the first case of its type in the state of Washington," Floyd said.

The trial date, which has been repeatedly delayed due to the complexity of the case, is tentatively set for Sept. 22 at the William O. Douglas Federal Building in Yakima. The case will be argued in front of Judge Thomas O. Rice of the federal Eastern District Court of Washington.

The city has paid a total of $278,623 to Thernstrom and two other expert witnesses hired to rebut the testimony of the ACLU's four expert witnesses. The ACLU's team includes experienced expert witnesses from similar ACLU lawsuits around the country, including an elections statistician from North Carolina, a demographer who specializes in redrawing election districts, and professors from the University of Washington and the University of California at San Diego.

Yakima hired Thernstrom to rebut the findings of UW professor Luis Fraga, who submitted a report detailing what he calls a long history of discrimination against Latinos in the Valley, and University of California at San Diego professor Frances Contreras, who argued that local school systems are unresponsive to the needs of the Latino community.

The ACLU's lead attorney is Kevin Hamilton of the Seattle law firm Perkins Coie, which is handling the case pro bono. Hamilton has been involved in redistricting cases in seven states, but is perhaps best known as the attorney for former Gov. Chris Gregoire during the 2004 vote recount in which she narrowly defeated Republican Dino Rossi.

Hamilton also represented comedian-turned-U.S. Sen. Al Franken, D-Minn., in a court battle over an electoral recount in 2009.

In a deposition between Hamilton and Thernstrom, Thernstrom acknowledges his compensation in the case "is distinctly the largest" he has ever received. Thernstrom charged $350 an hour for his services.

"And the city of Yakima never said to you, 'Whoa, whoa, you're spending too much money,'?" Hamilton asked Thernstrom. "Instead they simply paid your invoices when you submitted them?"

"That's correct," Thernstrom said.

Thernstrom goes on to justify the cost by adding that he has never spent as much time researching any other case he has testified in. Floyd said Thernstrom's hourly rate was competitive with other national experts they considered hiring.

"We've reviewed the bills," Floyd said. "He did a lot of work."

The ACLU hasn't revealed how much it has paid its four expert witnesses.

The ACLU has filed a motion to exclude Thernstrom's testimony, citing a number of criticisms, pointing to errors Thernstrom admits making in his reports and raising the issue that he has never been to Yakima or previously studied the city. The ACLU also has expert witnesses who didn't visit Yakima to compile their reports, but the two experts Thernstrom was hired to rebut, Fraga and Contreras, did spend extensive time in the Yakima Valley.

Hamilton and the ACLU's goal is to prove the city of Yakima's current election system violates Section 2 of the federal Voting Rights Act by diluting the Latino community vote. They say a history of racially polarized voting makes it impossible for candidates from Yakima's sizeable Latino community to be elected to the council, thus putting the system in violation of federal law.

Latinos make up more than 41 percent of Yakima's population, according to the 2010 U.S. Census, but not one has ever been elected to the Yakima City Council. Latinos make up about a third of the city's voting age population.

The Yakima City Council broke the gender and racial barriers in the 1970s and has had three female mayors, including the first for a major city in Washington, and one black mayor over the years.

Council members are currently elected under a hybrid system of at-large voting for three seats and district-based voting for four seats. District elections only occur in the primary, but all seven seats are voted on citywide in general elections.

The city adopted the current system in 1976 after residents approved a charter amendment to create four voting districts for primary elections. In 2011, Montes finished last out of three candidates in the 2nd District primary.

But another 2011 race also had a big role in the ACLU lawsuit: More than 58 percent of city voters (5,832) rejected a proposition to create seven voting districts for council elections, which the lawsuit essentially proposes.

Conservative opponents, such as Yakima Valley Business Times publisher Bruce Smith, labeled that initiative an attempt by local Democrats to elect more of their own kind to the body, which is nonpartisan.

Three years later, Smith said the ACLU lawsuit is no different.

"This has nothing to do with right or wrong," Smith said. "This is all about the liberal element wanting to make it easier to win a seat on the Yakima City Council."

The proposition also suffered from what supporters in hindsight said was a distraction: placing 10-year term limits on council members who are elected to four-year terms. Mary Baechler, one of the authors of the 2011 proposal, said it allowed opponents to move the issue away from supporters' primary goal of equal representation.

"The 10-year term limits made an easy way to confuse people and convince them redistricting wasn't a good idea," Baechler said. "It was really an issue of basic fairness."

But Montes' loss and the defeat of the redistricting proposition are almost footnotes compared to the large body of investigative work compiled by the ACLU and addressed in the city's rebuttals that debate politics, immigration, race relations and key historical events from the Yakima Valley as far back as the 1890s.

The only similar case in state history also comes into play: a 1968 federal case also under the Voting Rights Act that overturned Yakima County's imposition of a literacy test for Latino voters. It's not specific to the city of Yakima, but the ACLU can point to such significant events in the area to argue a history of discrimination exists in the city.

Like the ACLU, the city is also using Section 2 of the Voting Rights Act to make its case. But its attorneys argue that creating some Latino-majority districts would actually dilute the vote of Latinos outside of those districts.

In other words, if the city isn't in violation of the Voting Rights Act now, they say it would be under the ACLU's proposal.

The ACLU's demographer submitted various scenarios for creating seven council districts, which vary between two and three out of the seven potentially having a minority majority among the voting age population. Under none of the proposals would all seven current council members still reside in their own district.

If Yakima loses the case, the judge has broad authority under federal law to decide how City Council districts would be drawn, according to sources close to the matter who did not want to be quoted. That would likely be decided through another long and arduous legal process in the remediation phase.

Both sides requested the case be decided without a jury.

If the ACLU is successful, it could pursue cost reimbursement from the city. Those estimates aren't publicly available, but they could be far more substantial than what the city has spent defending the case.

In May, Skagit County was ordered to pay $2.1 million in legal costs to the ACLU of Washington and another law firm following a years-long case challenging the adequacy of the county's indigent defense system.

In the Yakima voting rights case, the ACLU has what is called a cooperating attorney agreement with the lawyers from Perkins Coie. If the court awards the attorneys the cost of legal fees, that money would be donated to a fund to help future ACLU efforts around the state.

If Yakima wins, the city also has the option to file a motion to recoup the costs of defending the case.

"That would be premature" to discuss now, Assistant City Attorney Helen Harvey said. "It would be something we would evaluate."

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