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. 22-804
:
of : December 1, 2022
:
ROB BONTA :
Attorney General :
:
KARIM J. KENTFIELD :
Deputy Attorney General :
The HONORABLE TIFFANY N. NORTH, COUNTY COUNSEL, COUNTY OF
VENTURA, has requested an opinion on a question relating to filling a vacancy on the
county Board of Supervisors.
QUESTION PRESENTED AND CONCLUSION
When a vacancy arises on the board of supervisors in a general law county,
Government Code section 25061 authorizes an election to fill the seat for the remainder
of the term at the next “general election,” subject to certain timing considerations. Are
the general election dates for statewide elections in Elections Code section 324(a)(2)
considered “general election” dates for purposes of filling a board of supervisor’s
vacancy under Government Code section 25061?
Yes, the general election dates in Elections Code section 324(a)(2) are considered
“general election” dates for purposes of filling a vacancy on the board of supervisors
under Government Code section 25061. For a date to qualify as a general election date
under section 324(a)(2), it must be a regular election date specified in Elections Code
section 1000, and a statewide election must be held on that date.
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BACKGROUND
This opinion request arises from a vacancy on the Ventura County Board of
Supervisors. Ventura County is a general law county divided into five supervisorial
districts. 1 Each supervisor is elected to office for a four-year term, with staggered
elections alternating every two years between the odd- and even-numbered districts. 2
As relevant here, Carmen Ramirez was elected to serve as the District 5
Supervisor for Ventura County on November 3, 2020. Her four-year term of office began
on January 5, 2021, and will end on January 6, 2025. On August 12, 2022, Supervisor
Ramirez passed away, creating a vacancy on the Board of Supervisors. 3
In a general law county like Ventura, the Government Code dictates how such a
vacancy is filled. Under Government Code section 25060, “the Governor shall fill the
vacancy,” with the appointee to “hold office until the election and qualification of [a]
successor.” In September 2022, the Governor appointed Vianey Lopez to fill the vacancy
until a successor is elected and qualified.
As to the timing of a successor’s election, Government Code section 25061
authorizes an election to fill a supervisor vacancy for the remainder of the term at the
“next general election,” unless that election would occur in the term’s fourth and final
year. This opinion request asks how to identify the “next general election” under section
25061 in the context of the District 5 vacancy on the Ventura County Board of
Supervisors. 4
1
The California Constitution recognizes two types of counties: general law counties and
charter counties. In a general law county, state statutes “regulate the [county’s] powers
and governmental structure.” (Dibb v. Cnty. of San Diego (1994) 8 Cal.4th 1200, 1206.)
Charter counties, in contrast, can exercise local control over certain “matters concerning
the structure and operation of local government.” (Id. at p. 1207.)
2
Gov. Code, §§ 24203, 25000, subd. (a).
3
Gov. Code, § 1770, subd. (a).
4
In addressing this request, we assume that section 25061 may authorize an election here
notwithstanding the Governor’s appointment of Vianey Lopez to the District 5 seat. As
our prior opinions have stated, a gubernatorial appointment under section 25060 lasts
only until the “election and qualification of [a] successor,” including an election provided
for under section 25061. (See 104 Ops.Cal.Atty.Gen. 80, 81 (2021);
64 Ops.Cal.Atty.Gen. 1 (1981).)
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ANALYSIS
We begin by construing the phrase “next general election” in Government Code
section 25061, which provides in full: “The election of a supervisor to fill the vacancy
for the unexpired term shall be held at the next general election, unless the term expires
on the first Monday after January 1st succeeding the election.” 5 Our construction of that
language is informed by the California Supreme Court’s decision in Hedlund v. Davis. 6
There, the Court considered a county charter providing that, in case of a vacancy for
certain county offices, county voters must elect an officer to fill the vacancy “for the
unexpired term” at the “next general election.” 7 Consistent with the ordinary meaning of
“next,” the Court construed “next general election” to refer to “the very first general
election which occurs following the vacancy, for which election candidates could qualify
under any method prescribed by law.” 8 We believe the same construction of “next
general election” should apply to section 25061, whose language is substantially similar
to the charter in Hedlund. In other words, we construe “next general election” in section
25061 to refer to the first “general election” following the vacancy at which there is still
time for candidates to qualify for the ballot. 9
We note that “next general election” in section 25061 does not mean the next
regularly scheduled election for the vacated seat. In other statutes, the phrase “next
general election” has been construed in that manner to refer to the election at which the
office is normally filled for the full four-year term. 10 But that reading would make little
sense in the context of section 25061, which provides that the candidate selected at the
“next general election” shall serve for the remainder of “the unexpired term.” 11 Indeed,
construing “next general election” in section 25061 to refer to the election at which a
supervisor is ordinarily elected would render the entire provision a nullity: Supervisors
5
Gov. Code, § 25061 (emphasis added).
6
Hedlund v. Davis (1956) 47 Cal.2d 75.
7
Id. at p. 79 (emphasis added).
8
Id. at p. 80.
9
This interpretation is consistent with our past opinions. (See 64 Ops.Cal.Atty.Gen.,
supra, at pp. 1, 3-5; 28 Ops.Cal.Atty.Gen. 17, 18 (1956); unpublished opn. I.L. 76-96
(May 11, 1976).)
10
See, e.g., People v. Col (1901) 132 Cal. 334, 335-338 (applying section 25, subdivision
19, of the County Government Act of 1897 to a vacancy for county auditor).
11
See Hedlund v. Davis, supra, 47 Cal.2d at p. 80 (declining to construe “next general
election” to refer to the election where the office is ordinarily filled because doing so
“would render meaningless the [charter’s] words ‘for the unexpired term’”).
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are ordinarily elected in the fourth and final year of the term. 12 But section 25061
expressly bars holding a vacancy election in the term’s final year. We therefore construe
“next general election” in section 25061 to refer to the first general election following the
vacancy where there is sufficient time for candidates to qualify for the ballot.
We turn, then, to identifying when that election might be in the circumstances
here. Although the Government Code does not define “general election,” the Elections
Code does. 13 As relevant here, the opinion requestor asks how to apply Elections Code
section 324(a)(2), which defines “general election” as “[a]ny statewide election held on a
regular election date as specified in Section 1000.” 14
As a threshold consideration, the requestor observes that section 324(a)(2) defines
“general election” in the context of a statewide election, whereas supervisor elections are
limited to an individual county. 15 But California often schedules local elections along
with statewide races, to reduce election costs and improve voter participation on votes
concerning local issues. 16 Government Code section 24200, for instance, requires
electing numerous county officers at the “general election at which the Governor is
elected.” Because there is nothing unusual about consolidating a county election with a
statewide election, we construe the term “general election” in section 25061 in
accordance with the definition provided by the Elections Code—including the dates
specified in section 324(a)(2).
We thus consider the possible “general election” dates following the vacancy at
issue here, for District 5 of the Ventura County Board of Supervisors. As noted, section
12
See Gov. Code, §§ 24200, 24202.
13
See, e.g., Ryder v. City of Los Altos (1954) 125 Cal.App.2d 209, 210-11 (construing the
Government Code to incorporate relevant provisions of the Elections Code);
104 Ops.Cal.Atty.Gen., supra, at p. 82 (same).
14
Elections Code section 324(a)(1) defines “general election” to also include the
“election held throughout the state on the first Tuesday after the first Monday of
November in each even-numbered year.” We need not separately analyze this provision
here, as the same dates are defined as a “general election” under section 324(a)(2) and
Elections Code section 1000(e).
15
County Counsel Analysis Regarding Next General Election Date For Purposes Of
Filling A Board Of Supervisors Vacancy, at p. 4 (Aug. 31, 2022) (“County Counsel
Analysis”).
16
See, e.g., 100 Ops.Cal.Atty.Gen. 4 (2017) (discussing the California Voter
Participation Rights Act, which requires holding certain local elections on a statewide
election date to ensure adequate voter turnout).
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324(a)(2) defines “general election” as any “statewide election held on” one of the five
regular election dates “specified in section 1000.” The section 1000 dates, in turn, are:
(a) The first Tuesday after the first Monday in March of each even-numbered year
that is evenly divisible by four.
(b) The first Tuesday after the first Monday in March of each odd-numbered year.
(c) The second Tuesday of April in each even-numbered year.
(d) The first Tuesday after the first Monday in June in each even-numbered year
that is not evenly divisible by four.
(e) The first Tuesday after the first Monday in November of each year. 17
Under section 1000, then, the election dates following the District 5 vacancy are:
(a) March 5, 2024; (b) March 7, 2023; (c) April 9, 2024; (d) June 2, 2026; (e) November
8, 2022, November 7, 2023, and November 5, 2024.
Considering these dates in chronological order, the earliest date—November 8,
2022—is a “general election” date under section 324(a)(2) because a statewide election
was held on that date. 18 According to the requestor, however, that election occurred too
soon after the District 5 vacancy for candidates to qualify for the ballot. 19 Therefore, as
discussed above, that date does not count as the “next general election” for purposes of
filling the vacancy under Government Code section 25061.
The next possible section 1000 election date is March 7, 2023, followed by
November 7, 2023. But no statewide election is scheduled on either date. 20 So long as
17
A range of statutes require scheduling elections on one of these dates. (See, e.g., Elec.
Code, § 1301, subd. (a) [general municipal election]; Gov. Code, § 1780, subd. (e)(2)
[special district governing board election]; Educ. Code, § 5018, subd. (a) [elementary
school district governing board election].)
18
See Elec. Code, §§ 1200, 1001, subd. (a). This election was also a “general election”
under section 324(a)(1), as it was “held throughout the state on the first Tuesday after the
first Monday of November in [an] even-numbered year.”
19
See County Counsel Analysis, at pp. 2-3.
20
See California Secretary of State, Upcoming Elections,
https://www.sos.ca.gov/elections/upcoming-elections (as of Nov. 30, 2022).
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that remains the case, they cannot be “general election[s]” under section 324(a)(2), which
expressly requires that a “statewide election” be “held” on the date in question. 21
The final possible section 1000 dates are March 5, 2024, April 9, 2024, November
5, 2024, and June 2, 2026. But the first three of those dates fall in the final year of the
term—2024—and Government Code section 25061 makes clear that an election to fill a
supervisor vacancy for the remainder of the term may not be held during that year.
Section 25061 directs that the “election of a supervisor to fill the vacancy for the
unexpired term shall be held at the next general election, unless the term expires on the
first Monday after January 1st succeeding the election”—that is, unless the next general
election is in the final year of the four-year term. 22 As to the final date—June 2, 2026—it
is plainly too late to hold an election for the remainder of a term that expires in January
2025.
In sum, there is no “general election” date on which an election could be held to
fill the District 5 supervisor seat for the remainder of Supervisor Ramirez’s term. The
statewide “general election” dates specified in Elections Code section 324(a) are either
too early or too late for section 25061 to authorize a vacancy election. The next election
for the District 5 seat should therefore be held in 2024, in the ordinary course, for the new
four-year term beginning in January 2025.
21
It is beyond the scope of this opinion to analyze the separate question of whether, if a
statewide special election were scheduled on one of these dates, it would necessarily be
deemed a “general election.” Although the requirements of section 324(a)(2) would
appear to be satisfied, section 324(b)(1) could be read to suggest that, for a date to qualify
as a general election, there must be an election for a Congressional Representative on that
date. We are not asked to construe section 324(b)(1) here, and we express no opinion on
how to harmonize section 324(a)(2) and section 324(b)(1).
22
In addition, April 9, 2024, is not a “general election” under section 324(a)(2) because
there is no “statewide election” scheduled to be “held” on that date. (Elec. Code, § 324,
subd. (a)(2); see California Secretary of State, Upcoming Elections,
https://www.sos.ca.gov/elections/upcoming-elections (as of Nov. 30, 2022).)
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