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. 21-1103
of :
: December 16, 2021
ROB BONTA :
Attorney General :
:
LAWRENCE M. DANIELS :
Deputy Attorney General :
THE HONORABLE RITA L. NEAL, COUNTY COUNSEL OF SAN LUIS
OBISPO COUNTY, has requested an opinion on questions relating to an election to fill a
vacancy on a board of supervisors after redistricting.
QUESTIONS PRESENTED AND CONCLUSIONS
1. Will the boundaries for San Luis Obispo County Supervisorial District Three
adopted in 2011 apply to the 2022 election to fill the unexpired term of a deceased
incumbent elected in 2020?
Yes. The boundaries of District Three adopted in 2011, which were in effect at the
time of the deceased incumbent’s election in 2020, control until the next regular election
for that seat in 2024, when the boundaries adopted in 2021 will control.
2. Will the individual elected at the 2022 Supervisorial Election for District Three
serve a two-year or four-year term?
The individual will serve two years because the election is to fill the remainder of
the term of the deceased incumbent.
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BACKGROUND
San Luis Obispo County is a general law county that is divided into five
supervisorial districts. Each supervisor is elected to office for a four-year term, and the
supervisorial elections alternate every two years between the odd-numbered districts and
even-numbered districts. The following chronology recounts the circumstances giving rise
to the two questions addressed in this opinion.
• On September 20, 2011, after the 2010 decennial census, the San Luis Obispo
County Board of Supervisors adopted new boundaries for its supervisorial
districts.
• On March 3, 2020, Adam Hill was re-elected to District Three of the San Luis
Obispo County Board of Supervisors for a four-year term running from
January 2021 to January 2025. Districts One and Five also held elections.
• On August 6, 2020, Supervisor Hill passed away.
• On November 20, 2020, Governor Newsom appointed Dawn Ortiz-Legg to fill
the vacancy in District Three.
• On December 14, 2021, using the 2020 decennial census results, the San Luis
Obispo Board of Supervisors adopted new boundaries for the county’s
supervisorial districts.
• On June 7, 2022, an election will be held to fill the remainder of the unexpired
term in District Three. On that same date, regular elections will be held for
District Two and District Four.
The period for submitting candidate paperwork for the June 2022 election will begin
in early January 2022. By then, according to the county, it needs to advise candidates of
the district boundaries for the election, partly because these boundaries affect whether
candidates are qualified to run based on their legal residence. Accordingly, the county
counsel has requested an opinion about which District Three boundaries will control for
the June 2022 election—the old boundaries adopted in 2011 (and used when Supervisor
Hill won re-election in 2020) or the new boundaries adopted in December 2021. Relatedly,
the opinion request asks whether the term for the District Three supervisor elected in the
2022 election will be two years or four years.
After examining the statutes governing elections to fill vacancies on boards of
supervisors after redistricting, including recent legislative amendments, and after re-
examining our 2014 opinion addressing similar questions regarding city council vacancies,
we conclude that the old boundaries control and that the winner of the 2022 election for
District Three supervisor will serve for two years. We set forth our reasoning below.
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ANALYSIS
In a general law county, the board of supervisors comprises five members elected
to four-year, staggered terms. 1 Generally, each supervisor represents a district rather than
the county at large. 2 The Governor must make an appointment to fill any vacancy on a
board of supervisors. 3 The appointed supervisor then serves until a successor is elected at
the next general election. 4 If the next general election after appointment occurs at the mid-
point of the four-year term of the incumbent who vacated the office, the newly elected
supervisor will serve for two years—the remainder of that four-year term. 5 On the other
hand, if the appointment occurs in the second half of the incumbent’s term, the next general
election will not take place until the incumbent’s term is set to expire, in which case the
appointee will serve the remainder of the incumbent’s four-year term, and the supervisor
who is elected will serve a new, four-year term. 6
After each federal decennial census, the board of supervisors must adopt new
boundaries for the supervisorial districts to make their populations substantially equal. 7 A
change of boundaries during a supervisor’s term of office does not change the term of
office. 8
The first question presented involves the statutory provision governing which
boundaries must be used in elections of supervisors after redistricting. Elections Code
section 21506, subdivision (b), provides:
At the first election for county supervisors in each county following
adoption of the boundaries of supervisorial districts, excluding a special
election to fill a vacancy or recall election, a supervisor shall be elected for
1
Gov. Code, §§ 24203, 25000, subd. (a).
2
Gov. Code, § 25040.
3
Gov. Code, § 25060.
4
Gov. Code, §§ 24201, 25061; see Elec. Code, §§ 324, subd. (a), 1000, 1001.
5
Gov. Code, §§ 24201, 25060, 25061; 64 Ops.Cal.Atty.Gen. 1, 3-4 (1981); 32
Ops.Cal.Atty.Gen. 108, 111-112 (1958).
6
Gov. Code, §§ 25060, 25061; 64 Ops.Cal.Atty.Gen., supra, at p. 4.
7
Elec. Code, § 21500; see Cal. Const., art. XXI, § 2, subd. (d)(1); 52 U.S.C. § 10301et seq.; Evenwel v. Abbott (2016) 578 U.S. 54, 57-60.
8
Elec. Code, § 21506, subd. (a).
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each district under the new district plan that has the same district number as
a district whose incumbent’s term is due to expire. 9
We must examine whether the June 2022 election to fill the San Luis Obispo County
Supervisorial District Three vacancy is “a special election to fill a vacancy.” If so, the
boundaries used in this election would not be according to the “new district plan.” Instead,
the boundaries would be based on the prior district plan.
To determine whether this type of election is a “special election” under Elections
Code section 21506, we turn to the statute authorizing elections to fill vacancies on boards
of supervisors, Government Code section 25061. Section 25061 specifies that “[t]he
election of a supervisor to fill the vacancy for the unexpired term shall be held at the next
general election.” 10 But this statute does not expressly declare whether this type of election
is “special.”
Under the Elections Code, a “special election” is “an election, the specific time for
the holding of which is not prescribed by law.” 11 Conversely, a “regular election” is “an
election, the specific time for the holding of which is prescribed by law.” 12 As for a
“general election,” it is a statewide election that occurs in even-numbered years on
specified dates. 13
Considering these definitions, we inquire whether an election to fill a vacancy, held
at a general election in the middle of a deceased supervisor’s term, occurs at a specific time
prescribed by law. On the one hand, a general election is held on a regular election date,
which is a specific time prescribed by law. 14 On the other hand, an election for this office
9
Elec. Code, § 21506, subd. (b) (emphasis added).
10
Gov. Code, § 25061.
11
Elec. Code, § 356.
12
Elec. Code, § 348.
13
Elec. Code, §§ 324, 1000, 1001.
14
Elec. Code, § 324, subd. (a)(2) (a general election is “[t]he election held throughout
the state on the first Tuesday after the first Monday of November in each even-numbered
year” or “any statewide election held on a regular election date”).
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would not always, or even usually, be held at this specific time—only when a vacancy in
the first half of the supervisor’s term necessitated the election. 15
As to which of these interpretations should prevail, the courts have provided
authoritative guidance, instructing that an election to fill a vacancy is a special election,
even if it takes place during a general election. 16 The California Supreme Court has stated
that “[a]n election to fill a vacancy occasioned by the death or resignation of an officer is
a special election, and the provision of our laws which requires such elections to be held at
the same time and place with general elections, does not change their character.” 17 As
framed by another court, “[i]t is not necessarily the time or manner of holding an election
to fill a vacancy that makes it a special election, but the fact that it is held at a time other
than the time fixed by law to elect an officer for the regular or defined term.” 18 Thus, a
special election to fill a vacated office may occur at a general election.
In light of this guidance, we conclude that because the election to fill a supervisorial
vacancy takes place at a time not designated by law for the regular election of that office,
it is a special election for that office. 19 Accordingly, the plain text of Elections Code
section 21506 excludes this category of elections from the general rule that new district
boundaries shall apply in elections after redistricting. Instead, the old district boundaries
apply.
We find further support for this conclusion in the legislative history of Elections
Code section 21506. This history indicates that the Legislature agreed with our
15
Gov. Code, §§ 24203, 25000, subd. (a), 25061. If a supervisorial vacancy occurs in
the second half of the four-year term, the next general election will occur when the term is
expiring and thus will be a regular election for that office, not a special election. (Gov.
Code, §§ 24202 [“Supervisors shall be elected at the general election prior to expiration of
the term of the incumbents”], 25061 [no election to fill vacancy where “the term expires
on the first Monday after January 1st succeeding the election”]; see 64 Ops.Cal.Atty.Gen.,
supra, at p. 4.)
16
People ex rel. Lee v. Prewitt (1899) 124 Cal. 7, 10-11; People ex rel. McKune v.
Weller (1858) 11 Cal. 49, 64; People v. Porter (1856) 6 Cal. 26, 29; accord, State ex rel.
Lanier v Hall (N.D. 1946) 23 N.W.2d 44, 49; People ex rel. Anderson v. Czarnecki (Ill.
1924) 143 N.E. 840, 841.
17
People v. Porter, supra, 6 Cal. at p. 29.
18
State ex rel. Lanier v Hall, supra, 23 N.W.2d at p. 49.
19
Similarly, a special election to fill a council vacancy may occur during a general
election. (Elec. Code, §§ 324, 1000, subds. (a), (d), (e), 1001; Gov. Code, § 36512, subd.
(b)(1).)
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interpretation in a prior Attorney General opinion of a statute corresponding to section
21506.
In that prior opinion, we construed Elections Code section 21606, pertaining to
elections for city council members of general law cities after redistricting. 20 At that time,
also, section 21606’s language closely tracked that of section 21506, the statute concerning
county supervisors. 21 Subdivision (b) of section 21606 provided that “[a]t the first election
for council members in each city following adjustment of the boundaries of council[]
districts, a council member shall be elected for each district under the readjusted district
plan that has the same district number as a district whose incumbent’s term is due to
expire.” 22
We interpreted this language in the context of examining whether a person
appointed to fill a city council vacancy must have legal residence in the boundaries of the
district effective at the time of the incumbent’s election or after the intervening
redistricting. In interpreting the pertinent statutory language, we observed that because the
phrase “the first election” triggered use of the “readjusted district plan,” the issue was
whether the phrase included special elections and appointments to fill vacancies. 23 We
preliminarily noted that the term “first election,” if read in isolation, conceivably could
encompass a special election to fill a council vacancy. 24
Examining the phrase “first election” in the entire statutory context, however, we
determined that, for several reasons, it applied only to the next regular election for that
office, not to an appointment or special election. 25 First, we explained, Elections Code
“section 21606, subdivision (b), directs that, in the first election post-reapportionment, the
districts filling seats under the readjusted district plan will be those with the same district
numbers as those ‘whose incumbent’s term is due to expire’ . . . , which is when the next
regularly-scheduled election would take place.” 26 Second, “by its use of the plural form,
the statute’s introductory phrase ‘[a]t the first election for council members’ indicates that
the election would be for multiple council positions, which, again, would indicate a
regularly-scheduled election, rather than a specially-held election to fill a vacancy.” 27
20
97 Ops.Cal.Atty.Gen. 12 (2014).
21
See Stats. 1994, ch. 920, § 2.
22
97 Ops.Cal.Atty.Gen., supra, at p. 15.
23
Id. at p. 15.
24
Id. at pp. 15-16.
25
97 Ops.Cal.Atty.Gen., supra, at p. 16.
26
Ibid.
27
Ibid.
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Third, subdivision (a) of section 21606 (essentially identical to its county counterpart in
section 21506) “specifies that ‘the term of office’ of any council member shall not be
affected by a change in district boundaries” and therefore that “the ‘term of office’ would
continue for its full duration, further indicating that the redrawn boundaries should not be
used for a given office until the first regular election for that office.” 28 Fourth, we believed
that “it would be inharmonious if the boundaries that the appointed member represented
were to change during the elective term of office, based on the fortuity that the elected
incumbent happened to resign or was otherwise unable to serve out his or her full term.” 29
Lastly, our interpretation found analogous support in California Supreme Court precedent
that had applied this same rule to district boundaries for United States representatives and
California state senators after redistricting. 30 Thus, we concluded, “the district boundaries
used when the former council member was elected are to be used for the remainder of his
or her unexpired term when filling his or her vacancy.” 31
Significantly, this statutory interpretation of Elections Code section 21606
(governing council members of general law cities) applies neatly to the parallel language
of section 21506 (governing county supervisors). 32 Moreover, as we will explain, we
believe that the Legislature subsequently codified our interpretation of the language present
in both these statutes.
In 2020, in Assembly Bill No. 1276 (AB 1276), the Legislature made various
changes to local redistricting procedures. 33 To section 21506 and section 21606, the bill
added the phrase discussed above—“excluding a special election to fill a vacancy or recall
election.” 34 According to a committee analysis, this amendment merely “clarifies that the
28
Ibid.
29
Id. at pp. 16-17 (“The voters within the old boundaries were the ones who elected the
[official] for that term, not the voters of the part of the new district that lies outside those
boundaries”).
30
Id. at pp. 17-18, citing Legislature v. Reinecke (1973) 10 Cal.3d 396, 404-406 &
Sloan v. Donoghue (1942) 20 Cal.2d 607, 609.
31
Id. at p. 18.
32
See Lexin v. Super. Ct. (2012) 47 Cal.4th 1050, 1091 (statutes on the same subject or
class of things will be read consistently “to the extent their language permits”).
33
See Stats. 2020, ch. 90, §§ 4, 13.
34
The companion statutes now read:
At the first election for county supervisors in each county [council members
in each city] following adoption of the boundaries of supervisorial [council]
districts, excluding a special election to fill a vacancy or recall election, a
supervisor [council member] shall be elected for each district under the new
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first election for county supervisors in each county or for councilmembers in each city
following adoption of the boundaries of supervisorial districts does not include a special
election to fill a vacancy or a recall election, as specified.” 35
Courts presume that the Legislature is aware of an Attorney General opinion
construing a statute. 36 Absent corrective measures by the Legislature to change the
opinion, courts also presume that the Legislature did not intend to displace the Attorney
General’s interpretation. 37 Relatedly, “[a]n amendment which in effect construes and
clarifies a prior statute must be accepted as the legislative declaration of the meaning of the
original act, where the amendment was adopted soon after the controversy arose
concerning the proper interpretation of the statute.” 38
In amending Elections Code sections 21506 and 21606, the Legislature was
presumably aware of our recent opinion interpreting the language “first election” in context
to mean “first regular election” for the given office. 39 Further, nothing in the legislative
record suggests that in adding the language, the Legislature was taking corrective measures
to supersede the opinion. Instead, by clarifying, the Legislature presumably was making a
declaration of existing law rather than changing it. Indeed, it would be anomalous for the
Legislature to deviate without justification from the longstanding federal, state, and
municipal rule of using the old boundaries in this situation. 40
district plan that has the same district number as a district whose incumbent’s
term is due to expire.
(Elec. Code, § 21505, subd. (b), italics added, bracketed portions added to reflect language
of Elec. Code, § 21606, subd. (b); see Assem. Bill No. 1276 (2019-2020 Reg. Sess.) as
amended Jul. 2, 2020.)
35
Sen. Com. on Elec. and Const. Amendments, analysis of Assem. Bill No. 1276 (2019-
2020 Reg. Sess.) as amended Jul. 29, 2020, Aug. 1, 2020, p. 4, italics added; see Cal.
Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 646
(“Committee reports are often useful in determining the Legislature’s intent”).
36
Cal. Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17; People v.
Gjersvold (2014) 230 Cal.App.4th 746, 751.
37
Cal. Assn. of Psychology Providers v. Rank, supra, 51 Cal.3d at p. 17; People v.
Gjersvold, supra, 230 Cal.App.4th at p. 751.
38
Western Security Bank v. Super. Ct. (1997) 15 Cal.4th 232, 243-244, internal
quotation marks omitted.
39
See 97 Ops.Cal.Atty.Gen., supra, at p. 16.
40
See Legislature v. Reinecke, supra, 10 Cal.3d at pp. 405-406.
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Also, as the requestor points out, an election to fill a city council vacancy is a
“special election,” and the Legislature in enacting AB 1276 intended the election
procedures for cities and counties to be consistent. According to the Legislative Counsel’s
digest, “the bill would make technical, clarifying, and conforming changes to make these
provisions consistent” for “counties, general law cities, and charter cities” with respect to
the “procedures and criteria pursuant to which [they] adopt supervisorial and council
district boundaries for the purpose of electing members of a county’s board of supervisors
or a city’s council.” 41 The Government Code specifically directs that a council vacancy
shall be filled by appointment or “special election.” 42 Thus, the same excepting phrase—
“excluding a special election to fill a vacancy”—in the companion statute for city council
members means that an election to fill a vacancy of a city council member elected under
the old boundaries will use the old boundaries. 43 To satisfy the Legislature’s desire for
consistency in supervisorial and council district boundaries, the exception in Elections
Code section 21506, subdivision (b), should be read in the same way. 44
In AB 1276, and in an earlier, 2019 bill, Assembly Bill No. 849 (AB 849), another
commenter finds additional evidence of the Legislature’s intent that old boundaries be used
when filling a supervisorial vacancy after redistricting occurs during the term of office.45
41
Legis. Counsel’s Dig., Assem. Bill No. 1276 (2019-2020 Reg. Sess.); see Van Horn
v. Watson (2008) 45 Cal.4th 322, 332, fn. 11 (“Although the Legislative Counsel’s
summary digests are not binding, they are entitled to great weight” in ascertaining
legislative intent, internal citations omitted).
42
Gov. Code, § 36512, subd. (b) (“If a vacancy occurs in an elective office provided
for in this chapter, the council shall, within 60 days from the commencement of the
vacancy, either fill the vacancy by appointment or call a special election to fill the
vacancy”).
43
Elec. Code, § 21606, subd. (b).
44
Because we find that the phrase “special election to fill a vacancy” in Elections Code
section 21506, subdivision (b), includes an election to fill a supervisorial vacancy at a
general election, we reject the suggestion of one commenter that the Legislature meant to
apply the phrase only to a small number of charter counties whose charters specifically call
for special elections to fill vacancies. Rather, we agree with the requestor that if the
Legislature wished to “reduce the scope of this exclusion from 58 counties to little more
than a handful,” it would have been explicit and would not have sought to “‘hide elephants
in mouseholes.’” (Deputy County Counsel Daniel P. Solish, Memo. to San Luis Obispo
County Counsel Rita L. Neal Re: the Effect of Redistricting on the 2022 District Three
Supervisorial Election, Nov. 10, 2021, p. 10, quoting Mendoza v. Fonseca McElroy
Grinding Co., Inc. (2021) 11 Cal.5th 1118, 1135.)
45
Assem. Bill No. 849 (2019-2020 Reg. Sess.).
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AB 1276 was, in part, a “clean-up bill” for AB 849. 46 In AB 849, the Legislature had added
the following language to section 21506 for county supervisors and similar language to
section 21606 for city council members: “The successor to the office of supervisor in a
supervisorial district for which the district boundaries have been changed shall be a resident
and voter of that supervisorial district.” 47 Interpreted broadly, this amendment could have
been seen as inconsistent with our 2014 opinion, applying the new district boundaries even
to the election of a supervisor filling the vacancy (the “successor”) of the supervisor elected
under the old district boundaries. But in the process of enacting AB 1276, the Legislature
deleted this provision of AB 849. 48 It seems that in doing so, the Legislature was correcting
any misconception that the new boundaries should be used in this situation.
Based on our analysis, we conclude, as to question one, that at the June 2022 election
to fill the unexpired term of San Luis Obispo’s District Three supervisor elected in 2020,
the 2011 boundaries rather than the 2021 boundaries apply.
In question two, we are asked whether the term of the candidate elected at the 2022
supervisorial election for District Three will serve a two-year term or four-year term.
Nothing has altered the law on this. The election is to “fill the vacancy for the unexpired
term,” which is four years for a supervisor. 49 This “term of office” is not “affected by any
change of the boundaries of the district from which the supervisor was elected.” 50 Since
the term of office of Supervisor Hill, the deceased supervisor elected in 2020, was four
years, the supervisor who is elected to District Three in 2022 will serve for two years, the
remainder of that term.
*****
46
Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill.
No. 1276 (2019-2020 Reg. Sess.) as amended Aug. 19, 2020, Aug. 21, 2020, pp. 5-6.
47
Former Elec. Code, § 21506, subd. (d), as amended by Stats. 2019, ch. 557, § 9; see
former Elec. Code, § 21606, subd. (c), as amended by Stats. 2019, ch. 557, § 22 (“The
successor to the office in a council district in which the boundaries have changed shall be
a resident and voter of that council district”).
48
Assem. Bill. No. 1276 (2019-2020 Reg. Sess.) as amended Jul. 29, 2020, §§ 4, 13.
49
Gov. Code, § 25061; see Gov. Code, §§ 24203, 25000, subd. (a).
50
Gov. Code, § 21506, subd. (a); see 64 Ops.Cal.Atty.Gen., supra, at p. 3 (“the phrase
‘term of office’ relates to the office and not to the incumbent” and “always remains the
same”), citing Holbrook v. Bd. of Directors of Imperial Irr. Dist. (1937) 8 Cal.2d 158, 161
(“In a term of office there may be several tenures but the term of office remains the same”).
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