HomeMy WebLinkAbout09 SB 2 TERM LIMITS 10-02-95 LAW OFFICES OF
ROURKE. WOODRUFF & SPRADLIN
A i~I~OFESSIONAL CORPOI~ATION
MEMORANDUM
NO. 9
10-2-95
tO:
FROM:
DATE'
RE:
Honorable Mayor and Members of the City Council
City Attorney
September 21, 1995
Effect of Senate Bill 2 Pertaining to Term Limits 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 1996. 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 law
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. Altematively, 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. However,
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.
_-
Enclosures (SB 2 and Measure H)
cc: William A. Huston, City Manager
Pamela Stoker, City Clerk
1100-00012
17326_1
B~LL ~UHBER~ SB 2
BILL TEXT
d~ri~ ~y ~e on ~he govern~ ~ of a ~nity collie
~y pro~sal ~ l~i= the ~r of t~ a ~r of ~e go~~9 ~d of a
co.unity ~llege d~ri~ ~y ~erve ~ the gov~n~ '~ of a
=olle~8 ~istrict-s~1 apply ~o~~ly only a~ ~hall not ~o~' o~a~ive
favor the ado~ion of the ~o~sal.
93~0) of D~vL~ion 9 of the Ble=tL~e
(~cing with Se~ion 9500) o~ Division 90~ =~ EleCtiOns ~.
SEC. 4. ~ion 25000 of ~ ~ver~ ~de ~s ~~ ~o
25~0. {~} Each county shall ~ a ~ard of su~iso=s uo~sLs~&~g o~
~eneral e~eotion. If the te~ of off~ Of ~re =h~ =~ee ~~ O~ the
TherefOr the ee~ of office of each ~er shall ~ four
(b) N~wl=h~anding any o~r provisL~ of law, ~e ~arU o~ su~sor~ Of
~y gen~al law or cheer ~y ~F ~ or th~ resident~ of =he uo~ may
=~ a m~= of the ~d of ~u~=v~e~s may s~e on the bo~d of
~u~isor~. '~y ~ro~sal to l~it the n~r of =e~s a me~r o~ =~e
th~ ~nty ~t a .r~l~ly Ich~uled ele~lon and a maJori=y o~ ~e ~=e~
on ~ ~~on'~a~o= the ad. ion of ~ prisa1.
36502. (a). A ~n ~8 ~ elig~e to bold offl~ as councilor,
cl~rk, or ol~y ~r~su~r ~ese he ~ s~ is at ~he t~ of ag~uming =~
o~Z~ ~ elec=o~ of the c~, ~d ~ m regL~er~ ~ter of the city
If, d~g hi~ or her te~ o~ o~fi~ he or she ~vas h~ or h~r place of
bi~ ~ her offi=~ shal~ ~~ately b~
(b} ~itb~~nV any ~er p~vis~on o~ law, the city council of
pr~e, b~ iuitiati~, a p~sai to ii. it ~ r~al a 1~= on th~ n~r of
~ a ~r of ehe city ~cil ~y se~ on ~e ci=y council, or ~e
of te~ a me~r of the ci=y c~ncil ~y se~ ~ the city council, or
n~r of t~s an elect~ ~r may s~e, s~ll a~ly prospe~i~elv onl~ and
shall ~ ~~ ~rative unless it is ~bm~=~ to the ele~ors of ~e
at a r~ularly sch~ul~ elation and a majority o~ =he votes cast on the
~estlon favor the ad.rich of the pro.sa1. No=withsnanding =he provisions
Display 199S-199~ Bll~ Text - IN~ORR~TION PAGE
BILL ~R~ SB 2
8ILL TEXT.
,
of ~is ~vl~i~x t~ prov~sion~ O~ ~y =it~. oha~ than, on J~u~ 1,
1996, ~Se ~~Uio~ ~ the ,.~= of te~ a ~er o~ ~h~ city
~3077. (a} Notwithst~di~ ~y o=he= ~t~i~ Of law, the gov~g
~ltiative, a ~sal to l!~!= o= ~e~al a li~t on th~ n~r of te~s
~ of the ~~~g ~dy of ~o ~istri~ ~ ae~e on the ~rnlng
of ~e dish,c=. ~ proposal to l~it the n~sr of te~ a me~= of the
gorging ~ of ehe distract my s~e on =be governing ~dy of the
shall a~ly ~=~c=ively ~d shall no~ ~~ ~ra~ive unless it is
of the sua=e, fo~ ~u~t to general law or a~ial a~, ~= ~h~
~c. ?. T~ ena~ne by th~ ~isla=ure o~ =hi~ a~ ~ n~ preju~
=he le~al ula~s ma~ by any pa~y =o any l~al. sc=lo~ ~onc~rnin~ ~ro~sit~n
140 of t~ Novem~r ~, 1990~ otat~ide general election.
~a~t to m~ 7 (c~ncin9 with Se~ion 17~00) o~ D~vl~io~ 4 of Titl~ 2 of
is '~~ized~ h~ver, =hat a loual a~o~cy 9~ 8Oboo1 di~ri== may ~rsue
~o~lon ~500) ~d ~y other provisions o~ laW.
FULL TEXT OF MEASURE H
CITY OF TUSTIN
ORDINANCE NO. 1126
AN ORDINANCE OF THE PEOPLE OF THE CiTY OF TUSTIN, C, AUFORNIA,
UMITINGCONSECUT1VE TERMS OF MEMBERS OF THE CiTY COUNCIL
suant to CaJifomia Elections Code 4017, the people of the City of Tustin
.oy ordain as follows:
SECTION 1. ESTABUSHMENT 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 Consecutive Terms of Members of the Council.
(a) Findinqs 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
~ in the hands of incumbent representatives has made our eiectoriai system
lessfree, less competitive, and less representative.
(2) The ability of legislators to serve an unlimited number of terms contributes
heavily to the e~emely high number of incumbents who are reelected. This unfair
incumbent advantage discourages qualified candidates from seeking public ofr,:e
and creates a class of career politidans, instead of the dtizen 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, end 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 CoundL
(b) Umitations on Consecutive Terms for Coundl 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 ha~ served
two (2) consecutive terms shall not be reelected as a member of the City Coundl
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
City Coundl presently in office.
,.4 Applicability of Other Laws.
In the absence of state legislation to allow general law titles to establish term
limits, section 1307(b) will not be binding on the City until general law titles are
authorized by state legislation to enforce term limits. The voters, however, can
reject candidates who seek public ofr~e for more than two (2) consecutive terms
now.
(d) Severabil~.
If any secl~n, subsection, subdivision, sentence, clause, phrase, or portion of
this Ordinance, is for any reason held to be invalid or unconslJtutional by the
decision of any court of competent juriscr~on, such decision shall not affect the
validity of the remaining portions of this Ordinance. The people of 1 he City of Tus~n
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 sec~ons, subsec.~ons, subdivisions, sentences,
dauses, 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 C'~y Council's and the City Clerk's certification that this measure has passed
by a majority vote of the people.
30-514
IMPARTIAL ANALYSIS BY CITY ATTORNEY
MEASURE H
rY OF TUSTIN
State law does not currently allow general law cities like the City of Tustin to
establish term limits for councilmembers. Accordingly, this ordinance could not
come into effect until such time as state legislation is enacted which authorizes
general law ci§es to adopt term limits. If and when that should occur, this ordinance
could come into effect, provided that it met any requirements, conditions, or
limitations that a new state law might impose. Subject to the foregoing limitations,
this ordinance would prohibit a city councilmember from serving mere than two
(2) full consecutive terms. A full term is bur (4) years. Under this ordinance a
councilmember who is elected to a full term may be elected subsequently to
another full term, and may serve a total of eight (8) consecutive years. After that,
the incumbent would have to wait at least two (2) years to be elected to sene on
the City Council again. When this ordinance becomes 'effective, it would not
shorten any term of office of any counciimember then in office. Once effective,
this ordinance could only be amended or repealed by a vote of the people of the
City of Tustin. It should be noted that this ordinance is identical to anoti~er
ordinance on the ballot, except that the other ordinance would limit terms to three
(3) full terms, or a total of twelve (12) consecutive years. If this 'ordinance is
approved by a majority of those voting and the other is not, only this ordinance
will be adopted. If both ordinances are approved by a majority of those voting,
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 voting, then neither will
be ~ted.
s/Lois E. Jeffrey
City Attorney, City of Tustin