Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 22-803
of :
: January 26, 2023
ROB BONTA :
Attorney General :
:
CATHERINE BIDART :
Deputy Attorney General :
LYNN BOONE applies to this office for leave to sue DEIDRE DUHART in quo
warranto to remove Duhart from her public office as a member of the Compton City
Council on the ground that Duhart did not receive the requisite number of votes under the
Compton City Charter to be appointed to that office. As a separate matter, Boone alleges
that the Compton City Attorney took certain improper and ultra vires actions in declaring
Duhart’s appointment to be valid.
We conclude that there is no substantial question of law regarding Duhart’s
appointment to the City Council, and that it is therefore not in the public interest to
authorize the proposed quo warranto action challenging her appointment. In addition, we
conclude that the alleged actions of the Compton City Attorney in this matter do not give
rise to an action in quo warranto. Consequently, the application for leave to sue is
DENIED.
INTRODUCTION AND BACKGROUND
The City of Compton is a charter city that is governed by a five-member city
council. In March 2022, former Compton City Councilmember Michelle Chambers
resigned from the Council. The appointment to fill this vacancy was placed on the
agenda for the regular council meeting held April 5, 2022. At that meeting, the four
remaining members considered several motions to appoint a replacement. The votes on
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the motion to appoint now-Councilmember Duhart were two in favor, one against, and
one abstaining. The official minutes from the council meeting describe the motion as
having “failed” by this vote count. 1 The Council then considered subsequent motions to
appoint other candidates, but none of those motions passed. 2 One week later, however,
City Attorney Eric Perrodin announced, and produced a memorandum by his office
concluding, that the motion to appoint Duhart had passed. Duhart was then sworn into
office. She continues to occupy that office.
The applicant here is an individual named Lynn Boone, who asserts that Duhart’s
appointment was invalid, and seeks our permission to sue Duhart in quo warranto to
remove her from the City Council. Boone and Duhart agree that Compton’s City Charter
governs the appointment of a Compton City Councilmember. 3 They also recognize that,
unless the specific terms of the Charter provide otherwise, the vote count on the motion
to appoint Duhart to the Council—two votes in favor, one vote against, and one
abstention—would constitute a majority of the four-person quorum that attended the
meeting in question, and therefore would suffice to act for the City Council. Put another
way, “[i]n the absence of express contrary indication, a simple majority of a collective
body constitutes a quorum, and a majority of a quorum is empowered to act for the
body.” 4 And, as we have previously observed, “the basic parliamentary rule” is that “the
direct approval of more than half of those members actually voting for or against the
measure becomes the act or choice of the body,” such that an abstention acts as an
acquiescence “in the action taken by the majority of those who vote affirmatively or
negatively.” 5 Thus, the abstention in this case would serve as an acquiescence to the two-
vote majority of the three members who cast affirmative or negative votes on the motion
to appoint Duhart.
1
Compton City Council Meeting Minutes, April 5, 2022, p. 5.
2
Id. at pp. 5-6.
3
See generally Cal. Const., art. XI, § 5.
4
75 Ops.Cal.Atty.Gen. 47, 49 (1992), citing FTC v. Flotill Products (1967) 389 U.S.
179, 183; People v. Harrington (1883) 63 Cal. 257; 66 Ops.Cal.Atty.Gen. 336 (1983);
62 Ops.Cal.Atty.Gen. 698 (1979); 58 Ops.Cal.Atty.Gen. 706 (1975);
55 Ops.Cal.Atty.Gen. 26 (1972)).
5
62 Ops.Cal.Atty.Gen., supra, at p. 700, italics omitted; see also Dry Creek Valley Assn.,
Inc. v. Board of Supervisors (1977) 67 Cal.App.3d 839, 843; 94 Ops.Cal.Atty.Gen. 100,
106-108 (2011) (reviewing relevant cases and Attorney General opinions and describing
abstention as acquiescence to modified decision-making process through which particular
outcome will be determined).
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While Boone acknowledges what normal parliamentary rules would provide in the
absence of the Charter providing otherwise, she contends that the Charter indeed requires
a higher vote threshold under these circumstances, and that the vote count for Duhart did
not meet that threshold. Specifically, she asserts that section 607 of the Charter requires
at least three affirmative votes to appoint a councilmember. 6 Boone argues further that
the City Attorney’s actions in declaring Duhart’s appointment valid were improper and
ultra vires (that is, beyond his lawful authority). Duhart disputes those arguments. For
the reasons that follow, we conclude that Boone’s allegations do not warrant granting her
application to proceed in quo warranto.
ANALYSIS
Quo warranto is a civil action that is used to challenge the lawfulness of a public
official holding a given public office. 7 A private party who seeks to pursue such an
action must first obtain the consent of the Attorney General. 8 In deciding whether to
grant consent, the Attorney General has broad and extensive discretion. 9
When considering a quo warranto application, we do not attempt to resolve the
merits of the controversy. Instead, we grant leave to sue if we determine that (1) quo
warranto is a proper remedy to resolve the issue presented; (2) the application presents a
substantial question of law or fact warranting judicial resolution; and (3) granting the
application would serve the public interest. 10 As explained below, Boone’s allegations
regarding the City Attorney’s allegedly improper actions raise an issue as to which quo
warranto is not a proper remedy, and her allegations regarding Duhart’s allegedly
improper appointment do not present any substantial question of law or fact warranting a
judicial resolution. Accordingly, we deny Boone’s request for leave to sue.
6
Charter section 607 provides in relevant part: “Unless a higher vote is required by other
provisions of this Charter the affirmative votes of at least three members of the City
Council shall be required for the enactment of any ordinance or resolution, or for the
making or approving of any order for the payment of money.”
7
See Code Civ. Proc., § 803; Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th
1221, 1225; People ex rel. Pennington v. City of Richmond (1956) 141 Cal.App.2d 107,
117.
8
International Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687,
693-698.
9
Rando v. Harris (2014) 228 Cal.App.4th 868, 875, 880-882.
10
Id. at p. 879; 96 Ops.Cal.Atty.Gen. 36, 40 (2013).
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1. Availability of Quo Warranto
Quo warranto is an appropriate remedy to determine whether a public official is
unlawfully holding a public office. Here, Boone principally argues that Duhart is
unlawfully holding public office as a Compton City Councilmember on the ground that
Duhart received an insufficient number of votes to secure appointment to that office.
Thus, quo warranto is an available and appropriate remedy insofar as Boone challenges
Duhart’s appointment on that basis. Consequently, we will proceed to determine whether
this claim also meets our other criteria for granting leave to sue.
As for Boone’s related allegations involving the City Attorney’s alleged improper
and ultra vires actions in this matter, we conclude that those allegations do not form the
basis of an action in quo warranto as they are collateral to the issue of whether Duhart’s
appointment was valid. That is, the validity of Duhart’s appointment as challenged here
depends on how many votes were required for her appointment under the City Charter—
not on an evaluation of the City Attorney’s alleged actions in announcing his
determination with respect to that appointment. Quo warranto is not available to address
Boone’s allegations concerning the City Attorney’s actions, and we therefore put those
allegations aside as we consider whether Boone’s allegations regarding the Charter’s
vote-count requirements present a substantial issue of law that would warrant a judicial
resolution. 11
2. There Is No Substantial Legal Issue with Respect to the Validity of Duhart’s
Appointment
To determine whether a substantial legal issue exists as to whether Duhart’s
appointment required three affirmative votes, we must interpret the City Charter. We
interpret a charter using the same rules for interpreting a statute. 12 As the Court of
Appeal has explained, “In construing a provision adopted by the voters our task is to
ascertain the intent of the voters. We look first to the language of the charter, giving
effect to its plain meaning.” 13 And we employ the ordinary canons of interpretation, such
as the rule that, “Where the words of the charter are clear, we may not add to or alter
them to accomplish a purpose that does not appear on the face of the charter or from its
legislative history.” 14
11
See 96 Ops.Cal.Atty.Gen., supra, at pp. 46-47, and fn. 55.
12
San Diegans for Open Government v. City of San Diego (2018) 31 Cal.App.5th 349,
375.
13
Id. at p. 376, ellipsis omitted.
14
Id. at p. 376.
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Compton’s Charter provides that the City Council shall fill a vacancy in any
elective office by appointment. In relevant part, section 505 states that “[a] vacancy in
any elective office, from whatever cause arising, shall be filled by appointment by the
City Council.” 15 The provision is silent on the number of votes required, and Boone does
not rely on section 505 to support her view that Duhart’s appointment was invalid.
Instead, Boone asserts that section 607—which addresses ordinances, resolutions,
and orders for payment of money—requires three affirmative votes for the appointment
of a councilmember. As mentioned, the relevant part of section 607 states as follows:
“Unless a higher vote is required by other provisions of this Charter the affirmative votes
of at least three members of the City Council shall be required for the enactment of any
ordinance or resolution, or for the making or approving of any order for the payment of
money.” If indeed section 607 required three affirmative votes for the appointment of a
councilmember, the vote count here of two in favor, one against, and one abstaining
would not have been sufficient. 16 Thus, we now consider whether a councilmember
appointment is an “ordinance,” “resolution,” or “order for the payment of money” within
the meaning of section 607.
We can quickly dispense with the notion that a councilmember’s appointment
constitutes an “order for the payment of money.” While Boone points out that
councilmembers receive compensation, the appointment itself cannot reasonably be
understood to be an “order for the payment of money,” and we doubt that the drafters of
the Charter would have used such a roundabout and imprecise way of describing the
action of appointing a councilmember if that is what they had meant. Indeed, as
discussed further below, several other Charter sections expressly pertain to
“appointments,” so the omission of that term in section 607 weighs heavily against
implying it there. As stated in the analogous context of statutory interpretation, “[w]hen
the Legislature has carefully employed a term in one place and has excluded it in another,
it should not be implied where excluded.” 17
This leaves the question whether Duhart’s appointment was an “ordinance or
resolution” within the meaning of section 607. Boone points to a 1993 Attorney General
opinion, also arising out of an application regarding the Compton City Council, in which
we concluded that the three questions presented in that application warranted resolution
15
Compton City Charter, art. V, § 505. It is undisputed that the office of a Compton
Councilmember is an elective office.
16
See 94 Ops.Cal.Atty.Gen., supra, at pp. 106-110.
17
Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876, 881–882, quoting
Grubb & Ellis Co. v. Bello (1993) 19 Cal.App.4th 231, 240.
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by a court in a quo warranto action. 18 One of those questions was whether a
councilmember’s vote for himself to be mayor was invalid under the doctrine against
self-appointments. 19 The opinion observed that, if the councilmember’s vote proved to
be invalid, the vote count would have been two in favor, one against, and one
abstaining—the same vote count here. 20 The opinion briefly asserted that, in that event,
whether the member’s appointment was an “ordinance or resolution” requiring three
affirmative votes would be “but another question of law that merits judicial review and
resolution.” 21 But the opinion did not elaborate further on that point and did not examine
any other provisions of the Charter with regard to that additional question—presumably
because it was not one of the three questions directly presented for consideration. Now
that we are directly confronted with the question, and have examined the Charter
comprehensively with a focus on the sole issue at the center of the controversy here, we
conclude that no substantial legal issue exists as to whether a councilmember
appointment is an “ordinance or resolution.” 22
First, as mentioned above, the Charter’s drafters could have expressly referred to
appointments in section 607, but they did not. That weighs against concluding that they
meant to include appointments by implication when they instead used the terms
“ordinance” and “resolution” in that section. In addition, although the Charter does not
provide an express definition for either “ordinance” or “resolution,” we may glean the
intended meaning of those terms from the Charter provisions that govern them. 23
We turn first to the term “ordinance.” The Charter’s provisions governing
ordinances make apparent that they apply to local legislation:
• section 608 mandates the use of an enactment clause for an ordinance (“The City
Council of the City of Compton does ordain as follows”);
18
76 Ops.Cal.Atty.Gen. 254 (1993).
19
Id. at pp. 256-259.
20
Id. at p. 257.
21
Ibid.
22
Duhart directs our attention to a court order dismissing the ensuing quo warranto
lawsuit; however, the order of dismissal does disclose the basis of the court’s ruling, nor
whether the court even reached the issue now directly before us. We therefore give no
weight to the court’s order of dismissal in that earlier case.
23
See San Diegans for Open Government v. City of San Diego, supra, 31 Cal.App.5th at
p. 376 (stating that provisions susceptible to more than one reasonable interpretation
should be considered in light of “overall statutory scheme”).
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• section 609 directs the City Clerk to publish adopted ordinances or summaries of
them;
• section 610 authorizes the codification of enacted and published ordinances;
• section 611 provides that ordinances are effective 30 days after enactment (except
those relating to specified matters, such as elections);
• section 612 sets forth the punishments for violation of an ordinance;
• section 613 requires the Council to amend an ordinance by its reenactment with
amendments; and
• section 700(b) requires the City Clerk to number all ordinances and to maintain
them in a book.
These provisions make clear that the term “ordinance” in the Charter refers to local
legislation of general application—as opposed to a specific and discrete action taken by
the legislative body, such as an appointment. That understanding is consistent with
Compton’s municipal code and court opinions, which describe ordinances in a like
manner. 24 For these reasons, a particular council action to make an appointment cannot
plausibly be viewed as an “ordinance” under the Charter. Thus, we discern no substantial
issue as to whether an appointment is an ordinance requiring three affirmative votes
under Charter section 607.
The Charter’s text supports a similar conclusion with regard to the term
“resolution.” The Charter requires the City Clerk to number resolutions and maintain
them in a book (like ordinances). 25 It also requires the title of a resolution to be read
24
See, e.g., Compton Mun. Code, § 1-3 (stating that ordinance “[s]hall mean any act of
local legislation . . . so long as it is adopted by the procedure required for the adoption of
an ordinance and so long as it remains in force and effect pursuant to the law,” and that
ordinance “refers to an ordinance of the City of Compton”); San Diego City Firefighters,
Local 145 v. Bd. of Admin. of San Diego City Employees. Ret. Sys., 206 Cal.App.4th 594,
607 (2012) (“ordinance is a local law which is adopted with all the legal formality of a
statute”); Porter v. City of Riverside (1968) 261 Cal.App.2d 832, 836 (“An ordinance
stands in the same relationship to a city charter as does a statute to the constitution of the
state”).
25
Compton City Charter, art. VII, § 700(b) (requiring recording and numbering in books
of ordinances and resolutions).
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aloud and the remainder of the resolution to be read aloud upon request. 26 Nowhere does
the Charter refer to the action taken for an appointment as a “resolution.” 27 On the other
hand, there is a Charter provision, governing appointments to the City’s Planning
Commission, Personnel Board, and Recreation and Parks Commission, that expressly
refers to the act of proposing the appointment as a “motion,” providing further evidence
that the Charter does not envision appointments to be “resolutions.” 28 Tellingly, this
same provision specifies a four-affirmative-vote requirement for those appointments,
illustrating once again that when the Charter’s drafters intended to address the subject of
appointments—and, in that instance, to require a higher vote threshold for certain types
of appointments—they knew how to do so.
Boone asserts that the higher vote count required in this provision and in others
indicates an intent for a higher vote count on councilmember appointments as well. 29 In
our view, however, it is unlikely that these provisions, which are not directly related to
councilmember appointments, evince any intent as to such appointments. If anything,
their applicability to positions other than councilmember supports the conclusion that the
specified higher vote thresholds do not apply in the context of councilmember
appointments. 30
And when we consider the particular appointment at issue here, the motions to
appoint at the meeting in question were not identified on the meeting agenda or elsewhere
26
Id., art. VI, § 607 (“At the time of adoption of a resolution it need be read in full only
if, after reading of title thereof, the further reading thereof is requested”).
27
Cf. Cozzolino v. City of Fontana (1955) 136 Cal.App.2d 608, 610-612 (indicating that,
in absence of statutory requirement otherwise, motion rather than resolution is sufficient
to appoint and remove officer).
28
See Compton City Charter, art. X, § 1002.
29
Boone cites to provisions that require at least four affirmative votes. (See, e.g., id., art.
VI, § 607 (emergency ordinances introduced and adopted at same meeting), art. XIV,
§§ 1408 (specified budget changes) & 1409 (relating to forgoing bid process for public
works exceeding twenty-five thousand dollars, if either city employees themselves will
perform work, or urgent work is needed to preserve life, health, or property).)
30
See footnote 17, ante. Nor does it strike us as particularly surprising that the Charter
requires a greater number of affirmative votes in these contexts than it does in the context
of councilmember appointments. As a practical matter, when there are one or more
Council vacancies to fill, there will be fewer councilmembers available to vote on the
appointment, making it all the more difficult to satisfy a supermajority requirement. In
any event, the Charter specifies the types of appointments that require a higher number of
affirmative votes, and councilmember appointments are not among them.
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as resolutions, and were not titled or numbered as such in the meeting minutes. 31 The
agenda item for the appointment was simply listed as “CITY COUNCIL, DISTRICT 1
APPOINTMENT (DISCUSSION/ACTION).” 32 In contrast, the agenda for the same
meeting contained multiple agenda items for resolutions, each of which were expressly
identified on the agenda as “A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF COMPTON . . . .” 33 For each agenda item regarding a resolution, the agenda packet
contained draft written Resolutions. 34 The meeting minutes identified each resolution
with a title and a number. 35 Yet Boone makes no attempt to argue that Duhart’s
appointment, which Boone views as a “resolution,” was improper for failing to conform
to the requirements for resolutions. 36
Instead, Boone argues that Duhart’s appointment meets a definition of
“resolution” that lies outside of the Charter, in Black’s Law Dictionary. In full, that
definition states:
resolution (17c) 1. Parliamentary law. A main motion that formally
expresses the sense, will, or action of a deliberative assembly (esp. a
legislative body). • A resolution is a highly formal kind of main motion,
often containing a preamble, and one or more resolving clauses in the form,
“Resolved, That . . . .”[37]
Boone argues that the Charter intends for “resolution” to have this broad meaning and
that it encompasses an appointment. But no provision of the Charter uses the term
“resolution” to describe the means for making an appointment. Instead, where the
Charter does describe the means of appointment (in an article addressing council-
appointed boards and commissions), it states that “members of . . . such boards or
commissions shall be appointed, and shall be subject to removal, by motion of the City
Council” adopted by the requisite number of votes. 38 While a dictionary may provide
31
Compton City Council Meeting Minutes, April 5, 2022.
32
Compton City Council Meeting Agenda, April 5, 2022, p. 3.
33
Id. at pp. 3-4.
34
See, id. at pp. 18, 24, 38, 74, 121, 132.
35
See, e.g., Compton City Council Meeting Minutes, April 5, 2022, pp. 4, 6-7.
36
See City of Pasadena v. Paine (1954) 126 Cal.App.2d 93, 96 (explaining that city
council’s disregard of its parliamentary rule on resolution procedure will not invalidate
action taken, but that council cannot disregard mandatory rules in its charter).
37
Black’s Law Dict., 11th ed. 2019, ellipsis in original, italics omitted.
38
See Compton City Charter, art. X, § 1002, italics added.
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insight into the meaning of an otherwise undefined term, an examination of the Charter as
a whole illustrates that it is implausible that the Charter intended “resolution,” and its
concomitant requirements, to encompass a motion to appoint a councilmember. 39
Lastly, Boone argues that the Charter does not state anywhere that a council action
of any sort may be taken by fewer than three affirmative votes. She notes that the Charter
sometimes requires at least four affirmative votes, and reasons that it would be
anomalous for the Charter not to require at least three affirmative votes here as well. 40
We decline to interpret silence on the number of votes for the appointment at issue here
as imposing a specific vote requirement. 41 If the Charter had intended a specific vote
requirement to apply to councilmember appointments, we think it would have expressly
stated as much, like it does elsewhere for other types of appointments. Instead, given the
Charter’s silence on the number of votes required for councilmember appointments, the
most reasonable interpretation is that such appointments are governed by the general
parliamentary rule that a majority of a quorum suffices for the council to take action. 42
In sum, we do not find the vote count issue raised in the application to be a
substantial one that warrants judicial resolution. Even where (unlike here) an issue
presented for our consideration is debatable, the Attorney General has “considerable
discretion” in determining whether a particular claim is sufficiently substantial to warrant
the initiation of a quo warranto lawsuit and the resulting expenditure of judicial
resources. 43 And as the Court of Appeal has explained, an arguable interpretation of a
city charter provision does not automatically elevate a claim into a substantial question of
law or fact for purposes of determining the appropriateness of quo warranto. 44 Here,
39
See Stennett v. Miller (2019) 34 Cal.App.5th 284, 293, fn. 4 (cautioning against
selective court reliance on dictionary definitions to determine statutory intent and
explaining that meaning must be discerned with reference to purpose inferred from
context).
40
See, e.g., Compton City Charter, art. X, § 1002 & footnote 29, ante.
41
See footnote 6, ante; see also Siminoff v. Jas. H. Goodman & Co. Bank (1912) 18
Cal.App. 5, 11, quoting Estate of Apple (1885) 66 Cal. 432, 434 (“Where the Code is
silent, the common law governs”); Gov. Code, § 36512 (general law provision is likewise
silent on number of votes for councilmember appointment).
42
See footnote 4 and accompanying text, and footnotes 6 and 30, ante.
43
Rando v. Harris, supra, 228 Cal.App.4th at p. 875; see id. at p. 882 (“[T]he Attorney
General retains discretion whether to grant leave to sue in quo warranto where an issue is
fair or debatable”).
44
Id., at pp. 875, 880-882; 96 Ops.Cal.Atty.Gen. 48, 49 (2013); see also City of Campbell
v. Mosk (1961) 197 Cal.App.2d 640, 650 (“We do not believe . . . that the debatable issue
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while Boone has ably articulated her views and arguments, we conclude that the Charter
cannot reasonably be read as requiring three affirmative votes to appoint a
councilmember. Accordingly, we find there is no substantial legal issue as to the validity
of Duhart’s appointment that would warrant a judicial resolution.
3. It Is Not in the Public Interest To Authorize the Proposed Quo Warranto Action
Given our conclusions that (1) there is no substantial issue of law or fact
concerning Duhart’s appointment to the Compton City Council, and (2) the allegations
concerning the City Attorney’s actions in this matter do not form the basis of a quo
warranto action, it follows that it would not serve the public interest to authorize the
proposed action.
Accordingly, for the reasons set forth above, the application for leave to sue in quo
warranto is DENIED.
inevitably produces the quo warranto. Indeed, the Attorney General’s exercise of
discretion is posited upon the existence of a debatable issue. . . . The crystallization of an
issue thus does not preclude an exercise of his discretion; it causes it. . . . [¶¶] The
exercise of the discretion of the Attorney General in the grant of such approval to sue
calls for care and delicacy. Certainly the private party’s right to it cannot be absolute; the
public interest prevails”).
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