HomeMy WebLinkAbout11 COUNCIL LIMITS 01-20-97 LAW OFFICES OF
WOODRUFF, SPRADLIN & SMAR'~
A PROFESSIONAL CORPORATION
ENDA
MEM,ORANDUM
NO. 11
1-20-97
TO:
FROM:
DATE:
RE:
Honorable Mayor and Members of the City Council
City of Tustin
City Attorney
January 3, 1997
Proposed Ordinance to Confirm the Voters' Wishes to Limit City CoUncil
Terms of Office to Two (2) Full Consecutive Terms
BACKGROUND:
On November 8, 1994, the voters of the City of Tustin, approved a ballot measure
limiting terms of office of members of the City Council to two (2) full consecutive terms.
At that time general law cities did not have the authority to enact term limits. The ballot
measure provided that the provisions of the term limit ordinance would not be binding on
the City until general law cities were authorized by State legislation to adopt term limits.
(Exhibit 1) Subsequently, in 1995, the State Legislature authorized general law cities to
establish term limits that would apply prospectively. The legislative scheme provided for
such a term limit ordinance to be submitted to a vote of the people. After that. legislation
was approved by the Governor, we recommended that the City Council seek an Attorney
General's opinion to validate the November, 1994, ballot measure approved by the voters,
in light of the new State legislation. It was our opinion at that time that if the measure was
validated that it would apply to terms beginning in 1996. (Exhibit 2) Subsequently, a
Legislative Counsel's opinion on the effectiveness of Tustin's ordinance under the new
State legislation was solicited by Senator Ross Johnson's office. Unfortunately, the
legislative counsel concluded that since the City Council did not have the authority to enact
an ordinance in November of 1994, neither did the voters, even if the ordinance provided
that it would not become effective until the Legislature authorized such ordinances.
(Exhibit 3)
In order to assist Tustin to carry out the wishes of the voters, special state legislation
was enacted to permit the City Council of the City of Tustin to adopt an ordinance to limit
the number of terms a member of the City Council may serve without submitting the
1100-00012
39792_1
Honorable Mayor and Members of the City Council
City of Tustin
January 3, 1997
Page 2
proposal to the electors of the City for approval, "provided that a proposal containing those
same provisions was submitted to the electors of the City of Tustin at a regularly scheduled
election and a majority of the votes cast on the question favored the adoption of the
proposal." Government Code Section 36502.5 (Chapter 310 of the 1996 statutes, SB
1421). This Section further provides that:
"Any ordinance adopted pursuant to this section shall apply
prospectively from the effective date of this section."
As discussed in the attached Exhibit 3, it was and continues to be our opinion that
an ordinance that is adopted to confirm the voters wishes will apply prospectively to terms
beginning in 1998. Because of the special legislation, it is nOt necessary for Tustin to seek
the approval of the voters. Without this special legislation, the City Council would have
been obliged to submit term limit ordinance to the voters for their approval.
.PROPOSED ORDINANCF'
Attached hereto is a blacklined copy of the proposed ordinance, showing how it
differs from the measure approved by the voters. (Exhibit 4) Attached at Exhibit 5 is a
clean copy of the proposed ordinance. We have not changed any of the substantive
provisions, which are found in Section 1307(b). We have added a subsection (b)(3) which
states that:
"This ordinance shall apply prospectively from the effective
date of the enactment of Government Code Section 36502.5,
which date is January 1, 1997."
This additional language is required by Government Code Section 36502.5.
We have deleted subsection (c). The first sentence of that subsection is no longer
valid. The second sentence has no substantive legal effect. Of course, this is a comment
that any person running for election to the City Council can make, in opposition to those
who have already served two (2) full consecutive terms.
1100-00012
39792_1
Honorable Mayor and Members of the City Council
City of Tustin
January 3, 1997
Page 3
RECOMMENDATION:
Approve reading by title only and approve motion for first reading.
LOIS E. JEFFREY '. U
Enclosures
cc: William A. Huston, City Manager
Pamela Stoker, City Clerk
Valerie Crabill, Senior Deputy City Clerk
1100-00012
39792_1
EXHIBIT 1
5
?
8
9
10
11
12
15
14
15
16
17
18
19
9.0
22
25
9.6
9.7
ORDINANCE NO. 1126
AN ORDINANCE OF THE PEOPLE OF THE CITY OF TUSTIN, CALIFORNIA,
LIMITING CONSECUTIVE TERMS OF MEMBERS OF THE CITY COUNCIL.
Pursuant to California Elections Code 4017, the people of
the City of Tustin hereby ordain as follows:
SECTION 1. ESTABLISH~IENT OF LIMITATIONS ON CONSECUTIVE
TERMS OF MEMBERS OF THE CITY COUNCIL.
Section 1307 of Chapter 3 of Article 1 of the
Tustin City Code is hereby added to read as follows:
"1307 Limitation on Conseq. utive Terms of Members of the
: Council.
(a) Findings and Purpose.
The people hereby find and declare:
(1) The Founders established a system of
representative government based upon free, fair, and
competitive elections. The increased concentration of
political power in the hands of incumbent representatives has
made our electorial system less free, less competitive, and
less representative.
(2) The ability of legislators to. serve an
unlimited number of terms contributes heavily to the extremely
high number of incumbents who are reelected. This unfair
incumbent advantage discourages qualified candidates from
seeking public office and creates a class of career
politicians, instead of the citizen representatives envisioned
by the Founders. These career politicians become
representatives of the bureaucracy, rather than of the people
whom they are elected to represent.
(3) The purpose of this Ordinance is to
restore a free and democratic system of fair elections, and to
encourage qualified candidates to seek public office, by
limiting the powers of incumbency, by placing limitations upon
the number of consecutive terms which may be served by members
of the City Council.
(b) Limitations on Consecutive Terms for Council
Members.
(1) No person shall be elected as a member'of the
City Council for more than two (2) full consecutive terms.
Any membe~ of the City Council who has served two (2)
consecutive terms shall not be reelected as a member of the
City Council for at least two (2) years from the last date of
the second consecutive term.
1
3
5
6
7
8
9
10
11
12
13
li
15
16
17
18
19
20
21
22
(2) This Ordinance shall not operate to shorten any
current term of members of the City Council presently in
office.
(c) ADDlicability of Other Laws.
In the absence of state legislation to allow general
law cities to establish term limits, section 1307(b) will not
be binding on the City until general law cities are authorized
by state legislation to enforce term limits. The voters,
however, can reject candidates who seek public office for more
than two (2) consecutive terms now.
(d) Severabilit¥.
If any section, subsection, subdivision, sentence,
clause, phrase, or portion to this Ordinance, is for any
~eason held to be invalid or unconstitutional by the decision
of any court of competent jurisdiction, such decision shall
not affect the validity of the remaining portions of this
Ordinance. The people of the City of Tustin hereby declare
that they would have adopted this Ordinance, and each section,
subsection, subdivision, sentence, clause, phrase, or portion
thereof, irrespective of the fact that any one or more
sections, subsections, subdivisions, sentences, clauses,
phrases, or portions thereof be declared invalid or
unconstitutional.
SECTION 2. EFFECTIVE DATE.
Pursuant to Elections Code 4017, the Ordinance shall
become effective upon the City Council's and the City Clerk's
certification that this measure has passed by a majority vote
of the people.
ADOPTED by a vote of the people of the City of Tustin on
the 8th day of November, 1994 , and certified by the
Tustin City Council on the ~th day of December' ,
1994.
95 ' ATTEST:
27 /~ E. WYNN, City Clerk
THOMAS R. SA~%RELLI, Mayor
EXHIBIT 2
MEMORANDUM
TO:
FROM:
DATE:
RE:
Honorable Mayor and Members of the City Council
City Attorney
September 21, 1995
Effect of Senate Bill 2 Pertaining t~~,~for City Officials
.-
Summary of Issues
On August 11, 1995, the Governor signed into law Senate Bill 2, authored by
Senator Quentin Kopp. The new law specifically authorizes the imposition (or repeal) of
term limits on the governing boards of local governmental entities, including city councils,
county boards of supervisors, county boards of education, school and community college
districts, and special districts. Term limits may be initiated by the governing boards
themselves or by the voters through the initiative process, but only become operative upon
approval by a majority of the voters in the jurisdiction. The new law will go into effect
January 1, 1996.
The City Council has asked for the City Attorney's opinion on the effect of the new
law on Measure H, that was approved by the voters last November. The City Council has
also asked whether the term limits established by Measure H apply to existing, or to
prospective terms of office.
Conclusion
SB 2 becomes effective on January 1, 1996. The City's term limit ordinance,
Measure H, is subject to the requirements, conditions, and limitations of SB 2. it is our
opinion that Measure H substantially complies with SB 2, and should be given effect on
January 1, 1996. It is also our opinion that in approving SB 2 the Legislature's intent was
to enable voters to enact prospective term limits, and not to apply such limits retroactively.
to terms already served or begun. Accordingly, the term limits of Measure H, as
conditioned by SB 2, would apply to City Council terms beginning in April of 1.996... In our
opinion, based on SB 2, completed terms served and terms still in effect as of April, 1996,
should not be counted as terms subject to the limitations of Measure H.
We recommend that the City Council consider soliciting an Attorney General opinion
on the effectiveness of Measure H and the interpretation of SB 2. SB 2 is already the
Honorable Mayor and Members of the City Council
September 21, 1995
Page 2
subject of varying interpretations, and Tustin's enactment of Measure H in advance of SB
2 is a situation, not addressed by SB 2, which contemplates prospective action by the
voters.
Analysis
Senate Bill 2, amends Government Code section 36502 to read as follows:
"... (b).Notwithstanding any other provision of law, the city council of a
general law or charter city may adopt or the residents of the city may
propose, by initiative, a proposal to limit or repeal a limit on the number of
terms a member of the city council may serve on the city council, or the
number of terms an elected mayor may serve. Any proposal to limit the
number of terms a member of the city council may serve on the city. council,
or the number of terms an elected mayor may serve, shall apply
prospectively only and shall not become operative unless it is submitted to
the electors of the city at a regularly scheduled election and a majority of the
votes cast on the question favor the adoption of the proposal ..... "
[emphasis added]
in November of 1994, the voters of the City of Tustin approved Measure H, adding
Section 1307 to the Tustin City Code to limit members of the City Council to two (2) full
consecutive terms. (Ordinance No. 1126.) The ordinance recognized that, at that time,
state legislation did not allow general law cities to establish term limits, it therefore included
subsection (c):
"In the absence of state legislation to allow general law cities to establish
term limits, section 1307(b) will not be binding on the City until general law
cities are authorized by state legislation to enforce term limits .... "
Our 1994 ballot analysis explained that the ordinance would not come into effect
until such time as state legislation was enacted which authorized general law cities to adopt
term limits. We cautioned that:
"If and when that did occur, this ordinance could come into effect, provided
that it met any requirements, conditions, or limitations that a new state ia?
might impose" [emphasis added]
1100-00012
17326_1
Honorable Mayor and Members of the City Council
September 21, 1995
Page 3
Finally, we clarified that when the ordinance did become effective, it would not shorten any
term of office of any councilmember then in office.
in our opinion, although it was not enacted at an election after January 1, 1996,
Measure H substantially complies with the requirements of the new statute, namely that a
majority of the electors of the city approve the ordinance at a regularly scheduled election.
Accordingly, we believe the measure may be given effect as of January 1, 1996, when SB
2 becomes effective. This is, however, a'situation not addressed by SB 2, which appears
to contemplate voter approval after January 1, 1996.
The next issue is what terms are affected by SB 2. By the provisions of the SB 2,
term limits "shall apply prospectively only".
In construing a statute, you first look to its words, and if there is.any doubt as to
meaning, you look to evidence of legislative intent in the arguments considered by the
Legislature. In this case both the words of the statute and other documents considered by
the Legislature emphasize the "prospective" nature of the term limit authority. In the
author's summary that was submitted to members of the Legislature, Senator Kopp
described the term limit authority in SB 2 as "prospective in nature" and "prospective in ...
application." This implies that retroactive application to prior or existing terms was not.
intended or authorized by SB 2.
In a telephone conference with Mr. Dan Friedlander, Senator Kopp's chief of staff,
he stated that the intent of SB 2 was to affect terms of office that begin after January 1,
1996. Depending upon how the Legislative Counsel, Attorney General, or the courts
interpret SB 2, there could be some retroactive application in local ordinances, even if SB
2 applies only to terms beginning after January 1, 1996. For example, SB 2 could be
interpreted as permitting term limits enacted at a-November, 1996 election to apply to a
term beginning in April of 1996. Alternatively, SB 2 could be viewed as a general limitation
on the voters' ability to affect prior terms or those in effect at the time of approval of a local,
ordinance. In our opinion, the wording of the statute best supports the latter view. We
therefore conclude that, assuming Measure H becomes effective January 1, 1996, it affects
City Council terms of office that begin in April of 1996. Measure H should not be applied
to previous terms of office, and those being served as of January 1, 1996.
As you may be aware, congressional term limits were struck down bY the. United
States Supreme Court during the past year as violating the First Amendment. i:-iowever,
term limits on state legislators have been upheld by the California Supreme Court. It is
1100-00012
17326_1
Honorable Mayor and Members of the City Council
September 21, 1995
Page 4
possible that term limits on State legislators and local officials will be challenged in federal
court.
We will keep you informed of any further developments regarding this issue.
LOIS E. JEF~~"
Enclosures (SB 2 and Measure.H)
cc: William A. Huston, City Manager
Pamela Stoker, City Clerk
1100-CX~012
17328..1
D.£splay 1995-19~ 3£11 Text - IN~ORF_~.TION
BILL T~XT
_~AG~
the number of te---m~ a member of th~ governir_g hoard of ~he ¢ou~m~_i-.y collage
di~t--ic~ m~y ~erve on the governi~g board o~ a c~ni~y college ~~.
~y proposal ~ [~it th~ n~er of te~ a m~er of ~e gove~g bo~d of a
co.unity collage d~==i~ may ~erve on the gov~ning bo~d of a c~ni%y
=olleg~ distr!c= .sh~I apply pro~ively ouly an4 ~hal! not bec~e'
~less i% i~ submitted =o the ele~or~ of ~m c~un~T ~llege dis~ri~ at a
real,fly schooled ~le=t!oc. and a majority of the votes casu oa =he
favor the ado~tlon of the
~300) of OiFl;ton 9 of the Elect!one
(2) A proDosai ~l~a~ to the electors by the governing ~d p~ua~
(co~encing with Ss~ion 9500) of Divizion 90~ =~e Elec=ioas Co~.
SEC. 4. Se~ion 25000 of the Government ~de is ~nde~ =o read:
25~0. {a} Each county shall have a board of supe~iso=z con~&s=ang
five me--rs. Not ~re than =h~e me,ers shall be elected au =he s~
foll~ing their ele~ion the m~er~ mo eLe==ed shall so cl~~'
b~ 10: =~a= three m~rm =ha!l serve for four ye~s, and =wo for two ye~,
There.=er the te~ of office of each me.er ~ha!! be four
(b) Notwl=h~anding any other provision of law, the hoard of =~isors
~y genial law or =h~e= co.nay may a4o~ or the resident~ of =he =o~n~ may
~o~se, b~ ~i=iative, a pro~sal to l~it or =mp~al ~ limi= on =he
=~ a m~e= of the ~d of =upervisors may se~e on the bo~d of
supe~isorsl '~y ~ro~sal to l~it the n~er of te~s a me~r o~ ~he
of ~~isors ~y se~ on th~ board o~ supe~isor~ shall apgly pro~pec=iveL~
only an~ shall no~ ~come o~r~tive unless it is submit=ed =o the el~or~
the o~nt~ at a regul~ly scheduled elec=ion and a majority o~ =he ~=~
on ~e ~m~io~ favor =he ad,ion of the pro~sal.
SEC. 5. Section 36502 of th~ Gover~ent 0~e is ~endsd to
S6~02. (a) A ~on .Is not elig~Le to hold office as councilme~er,
clerk, or city ~rea;urer ~Less he or she is a= the time of assuming
=~e n~na=ion pa~r~ ~e i~mu~d to t~ ~andid~e as provided for in .Section
If, d~g hi~ or her tm~ o~ offi~ he or she moves h~ or her place
bi~ or her offi=~ shall ~edia=ely beco~ vacant.
(b) No~itb=t~n9 any ~her p~vision of law, the city council of
pxo~e, by initiative, a pro~ogal to Limit ~ re~al a 1~= on the n'~r of
=e~ a .~ber of %h~ city council may se~e on =he ci=y council, or
nu~er of tm=ms ~ ~le~d ~r may se~e. ~y pro, sa! =o l~i~ ~he
of te~ a me~= of the cl=y c~nctl may s~ ~ the city council,
n~e= of tm~s an elected mayor may s~m, s~i1 a~ly prospe~iFeI~ onl~
~estion favor the ad~tion of the pro~=al. No=wi=h~nanding =he provisions
Display 199S-199~ ~il~ T--~t - I~'~DRMATION ·
BiLL NIIR~ER; SB 2
~i~L TEXT.
.
of ~is ~d!vl~io~, t~ prov~sionz o~ ~y city. cha~
of a di~=ic= may adorn ~ =he resident~ of a district may
~itia=ive, a pro, sa1 to l~m~= O= cecal a li~t on the n~er of te~s a
shall a~ly ~o=pec=ively ~d ~hall nou bmc~e
.
sutured Co =he ele~ors of =he dic==&C~ a= a re~l~ly s=he~led ele~ion
bound~imm.
.
~C. 7. The ena~ent by the L~islaturm of chis a~ =haL1 no~ preju~ce
140 of t~ Nove~er ~, !990, ~tatewide g~neral elation.
p~s~t to ~ 7 (c~ncing with Se~ion 17~00) o~ D~vision 4 of Ti=lc 2 of
the Gove~nt ~de for costs ~da~e~ by the
r~edie= to obtain ~~rsement avail~!e co i= unde= ~a=C 7 (~m=~g with
FULL TEXT OF MEASUP~"
CITY OF TUSTIN
·
ORDINANCE NO. 112,5
;..N ORDINANCE CF THE PEOPLE OF THE CITY OF TUSTiN, CAUFORNIA,
U)JI~NG CONSECUTIVE TERMS OF MEMBERS OF THE CITY COUNCIL.
nt to CaJifomia E~ections Code 4017, the people of the City of Tustin
,~ret-! ordain as follows:
SECT;ON 1. ESTABLISHMENT OF LIMITATIONS CN CCNSECUTIVE TERMS
3F )JEMSERS OF THE CITY COUNCIL.
S~:on 1307 of Chapter 3 of Article 1 of the Tustin City Code is hereby added
:o rest as follows:
1307 Umitation on Consecutive Terms of Members of ~e Council.
(a) F:ndinqs and Put,se.
The people hereby find and declare:
(1) The Founders established a system of representative government based
..~pon free, fair, and compe!ftive elections. The increased concentraUon of political
~wer in the hands of incumbent representatives has made our eIectorial s/stem
ess free, less competitive, and less representative.
(2) The ability of legislators to serve an unlimited number of terms contributes
heavily to the extremely high number of incumbents who are reelected. This unfair
:ncumbent advantage discourages qualified cancr,:lates from seeking public of'rice
~nd c,,eates a class of career por~ddans, instead of the citizen representatives
~visioned by the Founders. These career politicians become representatives of
;he ~reaucracy, rather than of the people whom they are elected to repr. esent.
(3) The purpose of this Ordinance is to restore a free ~ democratic system of
'air e!ections, and to encourage qualified candidates to seek public office, by
;imiting the powers of incumbency, by plating limital~ons upon the number of
:;onsecutive terms which may be served by members of the City Coundl.
03) Umitations on Consecutive Terms for Counc~ Members.
(1) No person shaJl be etected as a member of the C;ty Counc'l for more than
.'wo (2) full consecutive terms. Any member of the City Council who has served
;',vo (2) consecutive terms shall not be reelected as a member of the City Counc~
for at least two (2) years from the last date of the second consecutive term.
"- :s Ordinance shall not operate to shorten any current term of members of
.. 3ouncii presently in office.
(c) Acolicabilitv of Other Laws,.
in the absence of state legislation to allow general law cities to establish term
:imits, section 130703) will not be binding on the City unb'i general law cities are
au,,h, odzed by state legislation to enforce term limits. The voters, however, can
-ejec~ candidates who seek public office for more than two (2) consecutive terms
(d) Severabil~.
If any sectio, n, subsection, subdivision, sentence, clause, phrase, or portion of
;his Ordinance, is for any reason held to be invalid or unconstifudonai by the
:lecision of any court of competent jurisdiction, such decision shall not affect the
,,alicity of the remaining portions of this Ordinance. The people of the City of Tustin
~ereby declare that they would have adopted this Ordinance, and each section,
subsection, subcr~sion, sentence, clause, phrase, or portion thereof, irrespectfve
3f the fact that any one or more sections, subeec~ons, sul:x:rMsions, sentences,
:lauses, p~rases, or portions thereof be declared invalid or unconstitu'donaL
.SECTION 2. EFFECTIVE DATE.
Pursuant to Elections Code 4017, the Ordinance shall become effective upon
:he City Council's and the City CIerk's certifica~on that this measure has passed
3y a majority vote of the people.
3o-514
IMPARTIAl- ANALYSIS aY CITY A'i-r0RNEY
MEASURE H
CITY OF TUSTIN
State law does not currenW aJlow general law cities r~e the City of Tustin to
establish term limits for counc~members. A~ordingly, this ordinance could ncr
come into effect until such time as sate legislation is enacted which authc, dzes
general law cities to adopt term limits. If and when that should cc, cur, this crdina'.ce
could come into effect, 13'ovided that it met any requirements, conditions, cr
limitations that a new state law might impose. Subject to the ~egoing limitaticns,
this ordinance would proh~it a city counc~member from serving more I~an h,,,o
(2) full consecutive terms. A full term is four (4) years. Under this ordinance a
counc~member who is elected to a full term may be elect, ed subsequently to
another full term, and may serve a to~ of eight (8) consecutive years. A~ter fft~t,
the incumbent would have to wait at least two (2) years to be elect, ed to serve cn
the City Council again. When this o~nance becomes effec'Jve, it would not
shorten ~ term of office of any councilmember then in office. Once effec'~e,
this ordinance could only be amended o~ repealed by a vote of the peo~e of ~e
City of Tustin. It should be noted that this ordinance is idenl~cal to another
ordinance on the ballot, except that the other ord'mance would limit terms to three.
(3) full terms, or a total of twelve (12) consecutive yeas. If this ordinance .is
approved by a majority o! those voting and the other is not, only this ordinance
will be adopted. If both ordinances are approved by a majodty o[ those vo~g,
then the ordinance with the greater number of "yes' votes will be the controlling
law. If neither ordinance is approved by a majority of those vol~g, then neither will
be adopted.
s/Lois E. Jeffrey
City A~torney, City of Tustin
EXHIBIT 3
LAW OFFICES OF
WOODRUFF~ SPRADLIN & SMART
A P~o~=Ess~:~u~t. Co~Po~'noN
PRIVILEGED & CONFIDENTIAl_
'MEMORANDUM
TO:
Honorable Mayor and Members of the City Council
City of Tustin
FROM: City Attorney
DATE: July 26, 1996
RE:
_ City of Tustin's Term Limit Ordinance; SB 1421
Backqround
As you know the City's term limit ordinance was approved by the voters before the
State legislature authorized general law cities to establish term limits. The ordinance was
worded so that it took effect upon State legislative authorization. Unfortunately, the State
law permitting cities to enact term limits (SB 2) did not make any provision for
grandfathering in an ordinance such as Tustin's. In addition, language in SB 2 and in the
legislative history of the bill emphasized the prospective nature of the enactment.
Accordingly, I informed you in January of 1996, that there was an issue with respect to the
effectiveness of our ordinance and that an Attorney General's opinion would be advisable.
(See attached Memorandum.)
Prior to seeking that opinion, I spoke with Berkeley Maughan, who informed me that
he .had provided my opinion on the City's ordinance to the staff of Tustin's State legislators
and that they were interested in pursuing an amendment to State law that would allow
Tustin's ordinance to take effect as of January 1, 1996, which was the date the State
legislation authorizing term limits became effective. Through Berkeley, I learned that an
effort would be made to seek a legislative counsel's opinion first, to see if legislation was
in fact needed for Tustin. (Such opinions are not made public like Attorney General
opinions.) The legislative counsel ultimately concluded that Tustin's ordinance was not
valid, because even though it was slated to become effective upon State authorization,
when it was enacted there was no authority in State law that would empower the voters to
impose term limits. Hence, it was void at the outset. (See attached Legislative Counsel
Opinion.)
Subsequently, Senator Johnson's office, in conjunction with Senator Kopp's office
(Senator Kopp was a principal author of SB 2), prepared an amendment to the Government
Code designed to assist the City of Tustin, but generally'applicable to all general law cities.
The bill permitted the city council of a general law city to adopt, without voter approval, a
measure to limit the number of terms a member of the city council may serve, provided that
Honorable Mayor and Members of the citY Council
City of Tustin
July 26, 1996
Page 2
a proposal containing those provisions was submitted to and was approved by a majority
vote of the city voters at a regularly scheduled meeting held after December 13, 1993, and
prior to January 1, 1996. {See SB 1421 attached.) Although this bill was introduced in
January of 1996, this office was not made aware of the bill or the Legislative Counsel's
opinion until recently. When the bill went to the Assembly Policy Committee on June 11,
1996, the bill was amended to specifically relate to the City of Tustin. According to staff
members at Senator Johnson's office, this is because the City of Tustin was determined
to be the only City in the State that fit the parameters of the bill. The Assembly and Senate
approved SB 1421, as amended, and it was signed by the Governor. It becomes effective
January 1, 1997.
SB 1421
VVhat the bill does is to enable the City Council of the City of Tusti~ to preserve the
decision the voters made in November of 1994, to establish term limits of two consecutive
terms for members of the City Council. The City Council could do this after January 1,
1997, by adopting an ordinance substantially similar to Measure H. It would not be
necessary for this ordinance to be submitted to the voters for ratification or reapproval.
However, the new term limits ordinance would apply to terms beginning in 1998, not
to existing terms. This is because both SB 2 and SB 1421 are intended to be applied
prospectively;, they are not intended to affect existing or prior terms. The City Council terms
of office that began in March of 1996 will not be governed by a City Council ordinance that
is adopted after January 1, 1997.
If this matter needs to be brought before the City Council now for discussion, we
recommend that it be agendized by the City Council. The City cannot take action based
on SB 1421 until after January 1, 1997. If any member of the City Council has a question,
please feel free to give me a call. -,
LOIS E. JEFFR~(~) ~/ (~
Enclosures
cc: William A. Huston, City Manager
John E. Cavanaugh, Esq.
Mary E. Binning, Esq.
Tustin Opinion Notebook
1100-O0012
32295_1
BY: STATE_CAPTTOL; ~-96 2:48PM; 9161234567 => '714 835 7787; #2
BION M. GREGORY
Sacramento, California
January 12, 1996
Honorable Ross Johnson
4074 State Capitol
Paul Anlilla Eve B. Kro~
Hems Rao A, wu Shale FL Kunlz
ChMe~ C. Asba aat:my Laa,~
J~ J. A~ak L B~ ~e
~e F. ~y~-V~ ~ G. ~
G~ae L ~ K~ S. ~
City Council: General Law Cities: Term ~imits - ~3~884
Dear Senator Johnson:
You have asked us to discuss whether an ordinance
limiting the number of consecutive terms that a member of a city
council of a general law city may serve thereon, which was adopted
by the general law city and approved by the voters thereof prior
to the enactment and effective date of Chapter 432 of the Statutes
of 1995, but expressly contingent upon the enactment of
legislation authorizing general law cities to adopt term limits,
would be effective to apply to members of the city council elected
after January 1, 1996, the effective date of Chapter 432 of the
Statutes of 1995. You have also asked us to discuss, if the
ordinance is not effective to apply to members of the city council
after January 1, 1996, whether a statute may be enacted that would
be effective to validate the ordinance so as to apply to member=
of the city council elected after January 1, 1996.
Chapter 432 of the Statutes of 1995 (hereafter Chapter
432), which became operative on January 1, 1996 (subd. (c), Sec.
8, Art. IV, Cal. Const.), adds a subdivision (b) to Section 36502
of the Government Code, providing, in part, as follows:
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"(b) Notwithstanding any other provision of
law, the city council of a general law or charter
city may adopt or the residents of the city may
propose, by initiative, a proposal to limit or
repeal a limit on the number of terms a member of
the city council may serve on the city council, or
the number of terms an elected mayor may serve.
Any proposal to limit the number of terms a member
of the city council may serve on the city council,
or the number of terms an elected mayor may serve,
~hall apply prospectively only and shall not become
operative unless it is submitted to the electors of
the city at a regularly scheduled election and a
majority of the votes cast on the question favor
the adoption of the proposal .... "
Chapter 432 provides that on or after January 1, 1996, a
city council of a general law city may adopt a measure to ~mpose
or repeal a limit on the number of terms that a city council
member or an'elected mayor may serve. The voters may also submit
a similar proposal by initiative measure on or after January 1,
1996. In either event, the proposal may not become operative
unless it is submitted to the city voters at a regularly scheduled
election and the proposal is approved by a majority of the votes
Cast on the question.'
By way of background to this recent enactment, as a
general proposition general law cities have only those powers
conferred on them by the Legislature, together with such powers as
are necessarily incident to those granted (IrwiD v. ~ of
Manhattan Beach, 65 Cal. 2d 13, 20; and Widdows v. Koch, 263 Cal.
App. 2d 228, 239). While the Legislature has broadly.empowered
cities to pass ordinances not in conflict with state law or the
constitution (sec. 37100, Gov. C.), we view this simply as a
legislative recognition of a city's ability to enact local
regulatory and'prohibitory legislation under the city's police
power (Sec. 7, Art. XI, Cal. Const.).
In this regard, a limitation upon the number of
consecutive terms that an elective city official such as a city
council member may serve is not, in .our opinion, a measure that
can be enacted under the police power because it is not a
regulatory measure of the sort associated with the exercise of the
1 A general law city may submit a proposition to the voters
of the city at a regular election or at a special election for
that purpose (sec. 10201, Elec. C.). The proposition may be for
the enactment of an ordinance (Sec. 9222, Elec. C.) or the
adoption of an initiative measure (Secs. 9214 and 9215, Elec. C.).
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Honorable Ross Johnson - p. 3 - #34884
police power (see Rose v. State of California, 19 Cal 2d 713,
730) . -- ' - '
In YouDqer v. Boa¥~ _of Supervisors, 93 Cal. App. 3d
864, the voters of a county had approved an amendment to the
county charter 'to limit the number of consecutive terms that an
elective county official could serve. The court held that the
measure of power accorded charter counties under the California
Constitution and general state laws did not include the power to
limit the term~ of elective officials.
The court reasoned that the term limitation constituted
an additional qualification for office and conflicted with the
general statewide law concerning qualifications for holding county
elective office (Id.~ at p. 872; 'and see Sec. 24001 and following,
Gov. C.; compare gawdrey v. city Q~ Redondo Beach, 15 Cal. App.
4th 1212, holding that a city charter provision limiting the tez~ns
of city council members and the mayor was a municipal affai~ under
section 5 of Article XI of the California Constitution relating to
city charters, and was not preempted by state law).
In Steinkamp v. Te_~lia, 210 Cal. App. 3d 402, at page
%05, the court invalidated a general law city's ordinance limiting
council members to two consecutive terms. The court concluded
that various provisions of the Government Code (Secs. 36501 to
36524, incl., Gov. C.) affect the eligibility of persons for local
offices in a general law city and establish the intent of the
Legislature to preempt local regulation of eligibility for
election to offices of general law cities (Id., at p. 404).
The court cited Section 36502 of the Government Code as
providing that a person is not eligible to hold office as a
council member unless he or she is an elector at the time of
assuming office, and was a registered voter of the city at the
time nomination papers are issued to the candidate (Ibid.). The
court noted the similarity of Section 36502 to Section 24001 of
the Government Code, relating to the eligibility of county elected
officers (Ibid.). The court held that the conclusion of ~
v. Board of Supervisor~, supra, that Section 24001 constituted
evidence of the Legislature,s intent to exercise statewide control
over the qualifications of elected county officials was applicable
to Section 36502 and elected officials of general law cities
(Ibid.). Based on this reasoning, the court held that a general
law city ordinance limiting the number of consecutive terms that a
city council member may serve was preempted by state law (Id., at
p. 405).
Thus, under state law applicable to general law cities
prior to the operative date of Chapter 431, January 1, 1996, there
cas no limitation on the number of terms that a city council
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Honorable Ross Johnson - p. 4 - ~34884
member of a general law city could serve, and there was no
authority given to the legislative body of a general law city'to
limit the number of terms that a city council member could serve.2
It follows that a city ordinance adopted prior to the
operative date of Chapter 432, could not limit the number of terms
that a member of a city council of a general law cit~ could serve,
both because the ordinance would be an enactment in excess of the
city's authority and because the ordinance would be preempted by
state-taw. Moreover, a general law city did not have the
authority, prior to January 1, 1996, to submit a proposition to
the voters to.-limit the number of terms that may be served by city
council members.
The fact that the effectiveness, of the ordinance was
expressly contingent on the enactment of legislation authorizing
general law cities to adopt term limits, would not convert an
enactment of the city, with or without voter approval, that was
otherwise in excess of its authority into one Within its statutory
authority upon the operative date of Chapter 432. The
unauthorized legislative act of the general law city is not
conferred validity by virtue of-the conditional nature of the act.
To make the city's legislative act valid upon some future act of
abe Legislature would have ~he effect of conferring powers on
members of the.city council and the voters of the general law city
that they did not'possess at the time of the adoption of the
ordinance. Under this construction, future members of the city
council and future city voters would be left with the alternatives
of being subject to term limits imposed without legal authority,
or of being required to take legislative and electoral action to
repeal those term limits. There is no authority to support the
validity of substantive enactments contingent upon future
validation (see discussion below). That result would be contrary
to the principle discussed above that general law cities may
exercise only those powers conferred on them by the Legislature.
Moreover, if the authority conferred in Chapter 432 was
applied to previous action by the legislative body and voters of a
general law city, a retrospective application of Chapter 432 would
result. In this connection, it is fundamental that: (1) the
general presumption is that legislative changes do not apply
retrospectively unless the Legislature expresses its intention
that they should do so, or there is a clear legislative intent to
that effect; and (2) the presumption of nonretroactivity rests in
2 Where a city has no power to act under an existing state
statute, that power cannot be created by an initiative measure
(Bagley v. City of Manhattan Beach, 18 Cal. 3d 22, 26-27).
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Honorable Ross Johnson - p. 5 - #34884
part upon the fact that the purpose of a legislative alteration
would not often attain significant advancement by a 1
the amended legislation to transactions which prece~ ication of
lative change (see ~ an~ o~ i_~ ins. Co. v.
legis d the
st~te'Bd~ of E_qualizatio~, 4 Cal. App. 3d 21, 34).
There is no clear expression of leglslati
Chapter 432 that it be applied retrospectively. To the contrary,
under the rules summarized above, Ch_~jpter 432 must be construed
prospectively; tha~ is, to authorize the local adoption of term
~mits bY legislative action and voter approVal
~fter its effective date (January 1, 1996
-- ' - ~ For thl~ reason ahdfor
the other reasons"discusse~ above, we conclude that Chapter
432 would not be construed to provide ~tatutory authorization for
the ordinance in question.
With respect to the question of whether the Legislature
may validate the subject ordinance so as to apply to members of
the city council elected after January 1, 1996, the effective date
of Chapter 432, the courts have held that although the Legislature
may pass a statute that effectively would validate procedural
irregularities of a local agency,' it may not validate
jurisdictional irregularities of a local agency.
It has been held that a defect, omission, or other
irregularity in a proceeding of a governmental body is
jurisdictional if it goes to the root of the authority of the.body
to act in the first instance, in which case the defect, omission,
or other irregularity cannot be validated or cured (see J__0/L~ v.
Walke~, 47 Cal. App. 2d 566, 569; Miller v. McKenna, 23 Cal. 2d
774, 782). A validating statute cannot breathe life into
proceedings that are void in their inception (see eo~ v. TowB
of Corte Madera, 115 Cal. App. 2d 32, 40).
In ~ v. oT_q_~_ o~f torte Madera, supra, an annexation
case, the court rejected the appellant's contention that one
city's annexation proceeding that was subsequent to an annexation
proceeding by a different city and therefore invalid by reason of
priority of annexation under law was nevertheless valid because
its validity was not contested within'the three-month period'
following the purported completion date, as prescribed by statute.
The court rejected this contention and h~ld that a requirement of
law that prohibited annexation of territory subject to a pending
prior annexation was jurisdictional. In other words, a proceeding
totally invalid at the outset cannot be made valid by a validation
statute at a later date.
With regard to procedural matters that properly may be
validated or cured by a validation act the court in Miller v.
McKenna, supra, stated as follows at page 781:
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"While the Legislature cannot cure the
omission of jurisdictional requisites, the manner
of procedure, ~~urisdiction ~~LUJ~E~ and
the mandates of due ~rocess are complied with, are
matters within the legislative discretion and may
be subjected to the exercise of the healing power
so long as further constitutional inhibitions are
obseL-ved.- (Emphasis added.)
Based on the above authorities, we think that a court
would characterize the ordinance in question as one falling within'
the category of jurisdictional irregularities ~ince, at the time
~hat a city council, me~ber could serve, consequently, we think
that a. court would hold that the Legislature could not validate
the adoption of the ordinance, or the voter approval thereof,
because the city council and the voters lacked the jurisdiction to
adoDt the measure at'the time of its purported adoption.
Very truly yours,
Bion M. Gregory
Legislative Counsel
DBJ:fw
David B. Judsor~
Deputy Legislative Counsel
9t61234567 06-28-96 02:4SPM P~'~'~ ::I:I:?~S
Senate Bill No. 1421
CHAPTER 310
An act to add Section 36502.5 to the Government Code, relating to
the City of Tustin.
[Approved by Governor July 29, 1996. Filed with
Secretary of State July 29, 1996.]
LEGISLATIVE COUNSEL'S DIGEST
SB 1421, Johnson. City of Tustin: term limits.
The law existing prior to January 1, 1996, did not authorize the
imposition of limitations on the number of terms that persons may
serve on governing bodies of general law cities. As of that date,
existing law authorizes a city council of a general law city to adopt a
measure that imposes a limit on the number of terms a member of
a city council may serve, provided that it is submitted to the city
voters at a regularly scheduled election and is approved by a majority
vote.
This bill would permit the city council of the City of Tustin to adopt,
without voter approval, a measure to limit the number of terms a
member of the ci.ty council may serve provided that a proposal
containing those provisions was submitted to, and was approved by,
a majority vote of the city voters at a regularly scheduled election.
The bill also would provide that any ordinance adopted pursuant to
these provisions would apply prospectively from the effective date
of the enactment of this bill. '
The California Constitution provides that a local or special statute
is invalid in any case if a general statute can be made applicable.
This bill would declare that, due to the unique circumstances
within the City of Tustin that the bill is intended to remedy, a general
statute within the meaning of specified propulsions of the California
Constitution cannot be made applicable and a special statute is
necessary.
The people of the State of California do enact as follo~-s:
SECTION 1. Section 36502.5 is added to the Government Code,
to read:
36502.5. Notwithstanding the provisions of Section 36502, the city
council of the City of Tustin may adopt by ordinance a proposal to
limit the number of terms a member of the city council may serve on
the city council without submitting the proposal to the electors of the
city for approval, provided that a proposal containing those same
provisions was submitted to the electors of the City of Tustin at a
regularly scheduled election and a majority of the votes east on the
question favored the adoption of the proposal.
Any ordinance adopted pursuant to this section shall apply
prospectively from the effeetive date of this section.
SEC. 2. The Legislature finds and declares that, because of the
unique circumstances applicable only to the City of Tustin, a statute
of general applicability earmot be enacted within 'the meaning of
subdivision (b) of Section 16 of Article IV of th~ California
Constitution. Therefore, this special statute is necessary.
EXHIBIT 4
! ORDINANCE NO
~"~ ..... '- to ~~-~ mlcc ~' ~^-017, tThe. City
~~ . .~;'~,,~.~
co~ncit of the City of Tustin hereby ordains as follows:
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SECTION ~3!. ESTABLISHMENT OF LIMITATIONS ON CONSECUTIVE TERMS
OF MEMBERS OF THE CITY COUNCIL.
Section 1307 of Chapter 3 of Article 1 of the Tustin
..... amended to read a's follows:
City Code is hereby ~~ .............
"1307 Limitation on Consecutive Terms of Members of the Council.
(a) Findings and Purpose.
(1) The Founders established a system of
representative government based upon free, fair, and competitive
elections. The increased concentration of political power in the
hands of incumbent representatives has made our electorial system
less free, less competitive, and less representative.
(2) The ability of legislators to serve an
unlimited number of terms contributes heavily to the extremely high
number of incumbents who are reelected. This unfair incumbent
advantage discourages qualified candidates from seeking public
office and creates a class of career politicians, instead of the
citizen representatives envisioned by the Founders. These career
politicians become representatives of the bureaucracy, .rather than
of the people whom they are elected to represent.
(3) The purpose of this Ordinance is to restore
a free and democratic system of fair elections, and to encourage
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Ordinance No.
Page 2
qualified candidates to seek public office, by limiting the powers
of incumbency, by placing limitations upon the number of
consecutive terms which may be served by members of the City
Council.
(b) Limitations on Consecutive Terms for Council Members.
(1) No person shall be elected as a member of the City
Council for more than two (2) full consecutive terms. Any member
of the City Council who has serVed two (2) consecutive terms shall
not be reelected as a member of the City Council for at least two
(2) years from the last date of the second consecutive term.
(2) This Ordinance shall not operate to shorten any
current term of members of the City Council~ presently in office.
If any section, subsection, subdivision, sentence,
clause, phrase, or portion to this Ordinance, is for any reason
held to be invalid or unconstitutional by the decision of any court
of competent jurisdiction, such decision shall not affect the
validity of the remaining portions of this Ordinance. The
~ityi~!~;Counc'it~ of the City of Tustin hereby declares that
thcyit/~:~6~id:~H~e~ adopted this Ordinance, and each s~tion,
subs~tion, subdivision, sentence, clause, phrase, or portion
thereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses, phrases, or portions thereof be
declared invalid or unconstitutional.
Ordinance No.
Page 3
by ...... Czty Tust~- ~
day of ,~ ~ ~~ficd ~" ~^ ~"~-
................. i v~ , .... _
TRACY WILLS WORLEY, Mayor
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PAMELA STOKER, City Clerk
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39827
ORDINANCE NO. 1175
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA,
CONFIRMING THE VOTERS' WISHES EXPRESSED ON NOVEMBER 8, 1994, TO
LIMIT CONSECUTIVE TERMS OF MEMBERS OF THE CITY COUNCIL.
The City Council of the City of Tustin hereby ordains as
follows:
SECTION 1.
AUTHORITY.
This Ordinance is enacted pursuant to Government Code
Section 36502.5 (Chapter 310, 1996 Statutes; SB 1421).
SECTION 2.
FINDINGS.
On November 8, 1994, at a regularly scheduled election,
the electors of the City of Tustin approved a proposal to limit
consecutive terms of members of the City Council to two (2) full
consecutive terms. This proposal added Section 1307 of Chapter 3
of Article 1 of the Tustin City Code. This ordinance contains the
same provisions on the limitation of City Council terms as the
proposal approved by Tustin electors.
SECTION 3. ESTABLISHMENT OF LIMITATIONS ON CONSECUTIVE TERMS OF
MEMBERS OF THE CITY COUNCIL.
Section 1307 of Chapter 3 of Article 1 of the Tustin
City Code is hereby amended to read as follows:
"1307 Limitation on Consecutive Terms of Members of the Council.
(a) FindinGs and Purpose.
-- _
The City Council hereby acknowledges that the. voters of
Tustin have found and declared that:
(1) The Founders established a system of
representative government based upon free, fair, and competitive
elections. The increased concentration of political power in the
hands of incumbent representatives has made our electorial system
less free, less competitive, and less representative.
(2) The ability of legislators to serve an
unlimited number of terms contributes heavily to the extremely high
number of incumbents who are reelected. This unfair incumbent
advantage discourages qualified candidates from seeking public
office and creates a class of career politicians, instead of the
citizen representatives envisioned by the Founders. These career
politicians become representatives of the bureaucracy, rather than
of the people whom they are elected to represent.
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Ordinance No.
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(3) The purpose of this Ordinance is to restore
a free and democratic system of fair elections, and to. encourage
qualified candidates to seek public office, by limiting the powers
of incumbency, by placing limitations upon the number of
consecutive terms which may be served by members of the City
Council.
(b) Limitations on Consecutive Terms for Council Member~.
(1) No person shall be elected as a member of the City
Council for more than two (2) full consecutive terms. Any member
of the City Council who has served two (2) consecutive terms shall
not be reelected as a member of the City Council for at least two
(2) _years from the last date of the second consecutive term.
(2) This Ordinance shall not operate to shorten any
current term of members of the City Council presently in office.
(3) This Ordinance shall apply prospectively from the
effective date of the enactment of Government Code Section 36502.5,
which date is January 1, 1997.
SECTION 4
SEVERABILITY.
If any section, subsection, subdivision, sentence,
clause, phrase, or portion to this Ordinance, is for any reason
held to be invalid or unconstitutional by the decision of any court
of competent jurisdiction, such decision shall not affect the
validity of the remaining portions of this Ordinance. The City
Council of the City of Tustin hereby declares that it would have
adopted this Ordinance, and each section, subsection, subdivision,
sentence, clause, phrase, or portion thereof, irrespective of the
fact that any one or more sections, subsections, sentences,
clauses, phrases, or portions thereof be declared invalid or
unconstitutional.
PASSED AND ADOPTED, at a regular meetin9 of the City Council
for the City of Tustin on this day of , 1997.
TRACY WILLS WORLEY, Mayor
ATTEST:
PAMELA STOKER, City Clerk