North County cities latest target of voting rights lawsuits

In the past two years, Kevin I. Shenkman has filed many lawsuits to get cities, school boards and other jurisdictions to comply with the 2001 California Voting Rights Act by electing their officials through districts based on population demographics, instead of electing from the area at-large. The law aims to increase racial minority representation in government.

Oceanside City Council voted 3-2 last week to proceed with districts rather than fight Shenkman's lawsuit.

Carlsbad City Council considered a similar move at its meeting Tuesday, also driven by a threat from Shenkman, but no final vote was taken.

Shenkman had a background in patent law when he took on the city of Palmdale for failing to comply with 2001 California Voting Rights Act.

Now, two years after that lawsuit gained him $4.5 million in attorney fees, his firm, Shenkman & Hughes PC, is at the forefront of a cottage industry that some opposing litigators have described as excessively lucrative.

The cases follow a similar pattern. Plaintiffs, typically local residents, pay nothing to the attorneys and receive no money if their case prevails: The money awarded by the courts goes to pay the lawyers instrumental in suing.

In the last couple of years, Shenkman and a small network of plaintiffs' attorneys have collected attorney fees ranging from $290,000 to $1.3 million. They continue to sue cities, school boards and other jurisdictions, and Shenkman expects business to keep booming in 2017.

"It's an area where we can make a living and do some good, and there are so few of those in the legal profession," Shenkman said.

His success, however, hasn't come without controversy.

Some jurisdictions continue to fight the lawsuits, including the city of Santa Monica, which as of this week is scheduled for trial in October. A hearing on a demurrer is scheduled May 22.

George H. Brown of Gibson, Dunn & Crutcher LLP described "fundamental differences of opinion" with Shenkman in a recent motion on behalf of Santa Monica that seeks a discovery referee. Pico Neighborhood Association v. City of Santa Monica, BC616804 (L.A. Super. Ct., filed Apr. 12, 2016).

Other lawyers who settled lawsuits complain Shenkman's fees are excessive. Attorneys for the city of San Juan Capistrano recently described Shenkman's fees as "unreasonable" and "not 'necessarily incurred'" as established by case law.

Richard L. Hasen, a professor at University of California Irvine School of Law and an election law expert, said lawmakers purposely included a provision in the Voting Rights Act that gives attorney fees to winning plaintiffs to encourage exactly what Shenkman is doing.

"That's how it's supposed to work," Hasen said. "You're basically using attorneys' fees as a way to spur litigation. The California Legislature had to realize if they're providing for attorneys' fees, they're creating this incentive."

Best Best & Krieger LLP's Whitney R. Blackhurst, James B. Gilpin and Jeffrey S. Ballinger, representing San Juan Capistrano, noted in their Nov. 16 opposition to Shenkman's fee request that the lawsuit was resolved through a stipulated judgment "less than four months" after it was initiated.

"During those four months, no depositions were taken, only one court hearing was held, and no expert information was exchanged," they wrote. "Yet, plaintiffs, through the use of six attorneys and two expert witnesses, somehow managed to rack up $22,810.50 in attorneys' fees and $50,127.14 in expenses."

Shenkman argued in his reply that he was being frugal, and that the complexity of the case and the risk he undertook supported him requesting a fee multiplier, which he didn't do "in recognition of defendant's cooperation."

He also noted that in other cases that have settled early, "the fee awards have still been substantial."

"For example, the cities of Santa Clarita and Garden Grove agreed to pay plaintiffs' attorneys fees of $600,000 and $290,000, respectively, in settlement of [voting rights act] cases prior to any depositions, motions or other significant litigation activity," Shenkman wrote in his reply.

Orange County Superior Court Judge Peter J. Wilson granted Shenkman's motion on Dec. 1 in the San Juan Capistrano case. Shenkman & Hughes will receive $226,570.50 for 387.3 hours. The Parris Law Firm in Lancaster is to get $5,740 for 12.4 hours, and the Law Offices of Milton C. Grimes will receive $10,500 for 15 hours. They'll also collectively be reimbursed nearly $50,000 in expert witness costs. Southwest Voter Registration Education Project v. City of San Juan Capistrano, 2016-00832243 (O.C. Super. Ct., filed Jan. 27, 2016).

Shenkman enlisted Parris and Grimes for the first time in 2013 after concluding he had a solid case against Palmdale and could use help from more experienced trial attorneys. Jauregui v. City of Palmdale, BC483039 (L.A. Super. Ct., filed April 18, 2012).

They also helped in the only other lawsuit to go to trial: Garrett v. City of Highland, DS1410696 (San Bernardino Super. Ct., filed July 18, 2014). San Bernardino County Superior Court Judge David S. Cohn ordered the city to move to voting by districts after a bench trial in January 2016. Shenkman's attorney fees were $1.3 million.

Morris J. "Mike" Baller, of counsel with Goldstein, Borgen, Dardarian & Ho, and San Francisco sole practitioner Robert Rubin also have worked with Shenkman. Before Shenkman entered the scene, Rubin, then with the Lawyers' Committee for Civil Rights in San Francisco, filed one of the earliest districting lawsuits in California. In 2009, he sued the Madera Unified School District. A judge awarded $162,500 in attorney fees instead of the requested $1.7 million.

Shenkman founded Shenkman & Hughes in 2011 with Mary R. Hughes, with whom he worked for 10 years at Gibson Dunn in Los Angeles. He said they happened upon Palmdale by chance. Darren Parker, chairman of the California Democratic Party African-American Caucus, contacted him about pursuing a case in Palmdale.

Parker said he wasn't bothered by Shenkman's lack of experience at the time.

As a former McDonald's manager, Parker's interest was piqued by Shenkman's work in a class action involving fast-food restaurant wages. He felt Shenkman had the right convictions and wanted to at least ask him a few questions. Five years later, the men are close friends, and Parker said he's proud of Shenkman's ongoing lawsuits.

"The work that Kevin is doing has given communities voices that they may not have otherwise had and put different people at the table," Parker said. "I think it's been a blessing for this state."

meghann_cuniff@dailyjournal.com