Would-Be Anaheim Councilwoman Loses Battle to Force Appointment : Courts: Shirley McCracken twice came within one vote, but judge agrees with city that three are needed to be seated.

Shirley McCracken, who twice came within one vote of being appointed to the City Council, had her day in court on Friday and lost.

Superior Court Judge William F. McDonald ruled that the city does not have to seat McCracken because she did not receive three City Council votes, a majority.

McCracken, who was the third-place finisher in last November’s election, would not say Friday whether she plans to appeal.

“I don’t know what we’ll do next,” she said after the 45-minute hearing. “I think I did the right thing by bringing it to court.”

McDonald’s ruling gives the council one more week to fill its vacancy. If it hasn’t done so by Jan. 28, a special election will be called.

The council, which next meets on Tuesday, already has failed four times to reach a consensus on any nominees.

McCracken, 57, had argued in court that two votes for her by Mayor Tom Daly and Councilman Frank Feldhaus and an abstention from Councilman Bob Zemel on two separate occasions in December should be enough to put her into office.

But McDonald rejected McCracken’s argument, noting that before each council vote City Atty. Jack L. White had made it clear both verbally and in a memorandum that at least three affirmative votes were required for appointment.

“It’s a very technical but very intriguing issue,” McDonald said before making his ruling. “I think the legislative history and the reading of the rules favors (the city).”

McCracken’s attorney, Ronald H. Bevins, said the Anaheim City Charter does not state that three votes are needed to appoint a council member.

“There is no three-vote rule in Anaheim,” Bevins said. “Does that raise (White’s memo) to the status of law? If it does, then we have a shocking precedent.”

After the hearing, White said the city is “gratified” by the judge’s ruling, which he stressed was based on technical grounds and not McCracken’s qualifications.

“It has nothing to do with Mrs. McCracken as a council candidate,” White said. “We have no reason to believe she’s not a great candidate.”

McCracken has received considerable public support at council meetings, including endorsements of some of those who ran against her in the November election. She also remains the first choice of Daly, who reiterated his support of her at this week’s City Council meeting.

But McCracken has been unable to muster a crucial third vote.

Councilman Lou Lopez has stayed out of the political fray by voting against all nominees and stating that he favors holding a special election.

Zemel, who criticized McCracken for bringing legal action against the city, has yet to vote in favor of a nominee supported by Daly. The mayor has also voted against all of Zemel’s nominees in recent weeks.

The vacancy that has caused such a political storm in Anaheim is due to a change in the city charter, which changed the way voters elect the mayor.

In the past, the mayor was elected by the public from among sitting council members and served a two-year term.

Beginning with last November’s election, the mayor was elected at-large for a four-year term. When Daly was reelected in November for the mayoral post, he was in the middle of his council/mayoral term.

If a special election is called, it would cost an estimated $100,000 and probably wouldn’t take place until June, leaving the council with four members until then.