Untitled California Attorney General Opinion ( 2023 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 22-1002
of :
: May 18, 2023
ROB BONTA :
Attorney General :
:
SUSAN DUNCAN LEE :
Deputy Attorney General :
Proposed Relator City of Moreno Valley has applied for leave to sue proposed
Defendant David Marquez in quo warranto to remove him from his seat on the Moreno
Valley City Council. The City asserts that Marquez forfeited his office because he was
“absent without permission from all regular city council meetings for 70 days
consecutively from the last regular meeting” he attended, in violation of Government
Code section 36513(b).
We conclude that substantial questions of law and fact exist as to whether
Marquez was absent without permission from all regular city council meetings for the
period specified in Government Code section 36513(b) and, as a result, forfeited his seat
on the council. We also conclude that the public interest will be served by allowing the
proposed quo warranto action to proceed. For these reasons, the application for leave to
sue is GRANTED.
BACKGROUND
Moreno Valley is a general law city, and thus derives its powers from the general
statutes enacted by the Legislature. 1 Moreno Valley’s five-member city council consists
1
See City of Orange v. San Diego County Employees Retirement Assn. (2002) 103
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of the elected mayor plus four councilmembers elected by the voters of the districts they
represent. 2
David Marquez, a resident of Moreno Valley, was elected to serve a four-year
term as the City’s District 3 Councilmember, and was reelected to this office in 2020.
His current term will end in December 2024.
The City alleges that Marquez forfeited his seat on the council under the terms of
Government Code section 36513(b), because Marquez was absent, without permission,
from the city council’s meetings for more than 70 consecutive days between June and
September of 2022. Marquez responds that his absences should qualify as “excused”
under section 36513(b) because he gave advance notice to the City and the absences were
for legitimate reasons. He also alleges he did not miss “regular City Council meetings”
for 70 days within the meaning of section 36513(b) because of the Council’s summer
recess. .
ANALYSIS
Quo warranto is a civil action used to challenge the lawfulness of a public
official’s holding of a public office. 3 This form of action is codified in section 803 of the
Code of Civil Procedure, which provides that an action may be brought by the Attorney
General, in the name of the People, “against any person who usurps, intrudes into, or
unlawfully holds or exercises any public office . . . within this state.” 4
Where, as here, a party seeks to pursue a quo warranto action in superior court,
that party must first obtain the Attorney General’s consent to do so. In determining
whether to allow an action to proceed, our role is not to resolve the merits of the
controversy. Rather, we consider (1) whether quo warranto is an available and
appropriate remedy; (2) whether the proposed relator has raised a substantial issue of law
or fact that warrants judicial resolution; and (3) whether authorizing the quo warranto
Cal.App.4th 45, 52.
2
See Gov. Code, § 34871.
3
Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, 1225;
76 Ops.Cal.Atty.Gen. 157, 165 (1993) (quo warranto is the “appropriate remedy to test
the right of a person to hold public office”); see 98 Ops.Cal.Atty.Gen. 94, 96 (2015) (a
member of a city council holds a public office).
4
Code Civ. Proc., § 803; see Rando v. Harris (2014) 228 Cal.App.4th 868, 873;
105 Ops.Cal.Atty.Gen. 65, 67 (2022).
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action will serve the public interest. 5 Here, all three requirements are met, and therefore
we grant leave to sue.
1. Quo Warranto Is an Available and Appropriate Remedy.
Code of Civil Procedure section 803 provides:
An action may be brought by the attorney-general, in the name of the
people of this state, upon his own information, or upon a complaint of a
private party, against any person who usurps, intrudes into, or unlawfully
holds or exercises any public office, civil or military, or any franchise, or
against any corporation, either de jure or de facto, which usurps, intrudes
into, or unlawfully holds or exercises any franchise, within this state.
The Court of Appeal has held that the term “private party” does not preclude a public
entity, such as the City in this instance, from applying for leave to sue in quo warranto. 6
Here, the City argues that Marquez has forfeited his office by excessive absences, and is
therefore now unlawfully holding that office. Quo warranto is therefore an available and
appropriate remedy for seeking Marquez’s removal.
2. The Application Presents Substantial Questions of Law and Fact that Warrant a
Judicial Resolution.
Government Code section 36513 provides as follows:
(a) If a city councilmember is absent without permission from all regular
city council meetings for 60 days consecutively from the last regular
meeting he or she attended, his or her office becomes vacant and shall be
filled as any other vacancy.
(b) Notwithstanding subdivision (a), if a city council meets monthly or less
frequently than monthly and a city councilmember is absent without
permission from all regular city council meetings for 70 days consecutively
from the last regular meeting he or she attended, his or her office becomes
vacant and shall be filled as any other vacancy.
5
Rando v. Harris, supra, 228 Cal.App.4th at pp. 868, 879; 72 Ops.Cal.Atty.Gen. 15, 20
(1989).
6
See People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804, 815, 817 (district
attorney is a “private party” for purposes of the quo warranto statute; statute’s reference
to “‘private’ only serves to distinguish other parties from the Attorney General”).
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The City contends that Marquez’s absences violated section 36513(b) because he
was absent without permission from all regular council meetings held over a period of
more than 70 consecutive days, and that he has therefore vacated his council seat.
Moreno Valley City Council Resolution 2015-71 sets the regular meetings of the
city council for the first and third Tuesdays of each month. There is no dispute that
Marquez attended the regular city council meeting on June 21, 2022, and next attended a
city council meeting on September 20, 2022. The number of days between meetings
Marquez attended (June 21 to September 20) is 91. 7
It is undisputed that Marquez’s first absence during the relevant period was from a
regular meeting held on July 5, 2022. The City observes that the minutes from that
meeting show that Marquez was absent and that “there was no motion made by any
councilmember or passed by the City Council to formally excuse Marquez’s absence.”
Although Marquez does not dispute the minutes, he argues that he should have been
excused because he called the city manager in advance and left a message stating that he
would be prevented from attending the meeting because he was needed for child care.
The City’s filings to date dispute this aspect of Marquez’s claim, instead relying on the
minutes.
The dates for the next three regularly scheduled city council meetings fell on July
19, August 2, and August 16, 2022, but those meetings were not held. A Notice of
Meeting Cancellation was issued on July 12, giving formal notice that the city council
would be in recess on the next three regularly scheduled meeting dates. 8
Following the summer recess, the next regular city council meeting was held on
September 6, 2022. The City again observes that the minutes from that meeting show
that Marquez was absent, and that “there was no motion made by any councilmember or
passed by the City Council to formally excuse Marquez’s absence.” Again, Marquez
does not dispute the minutes, but argues that he should have been excused because he
called the city manager in advance and left a message stating that he would be prevented
from attending the meeting because he had tested positive for COVID.
7
Given that the City has adopted a formal schedule of twice-monthly regular meetings, it
appears that section 36513(a)’s 60-day threshold may potentially apply here. On the
other hand, as mentioned, several scheduled meetings were cancelled during the period of
Marquez’s absence such that the meetings in fact were held “less frequently than
monthly,” so it may be that section 36513(b)’s 70-day threshold is more apt under the
circumstances. We need not dwell on this point, however, because the alleged period of
Marquez’s unexcused absence is 91 days, in excess of either threshold.
8
Notice of Meeting Cancellation posted July 12, 2022 (City Exhibit F).
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Thus, while Marquez does not dispute that he was absent from the July 5 and
September 6, 2022 meetings, he maintains that his absences should have been excused
because he was absent for legitimate reasons. He further maintains that he reported his
absences by leaving phone messages for the city manager, and was never instructed to do
otherwise. Additionally, Marquez argues that because the city cancelled three meetings
in a row for a summer recess, he did not miss “regular city council meetings” for a period
in excess of 70 days and therefore did not violate Government Code section 36513(b).
The City maintains that it keeps a regular meeting schedule with properly noticed
cancellations; that Marquez was not excused from attending the July 5 and September 6,
2022 meetings; and therefore that Marquez vacated his office by operation of section
36513(b).
As described above, Government Code section 36513 applies to a councilmember
who is “absent without permission.” Government Code section 36513 does not define
the meaning of the phrase “absent without permission,” nor does case law or Moreno
Valley’s municipal code. Indeed, we observed as much in a 2017 Opinion in which we
also granted leave to sue on a claim that a city council member had forfeited her seat
under section 36513. 9 For his part, Marquez alleges that he has attempted to discover the
city’s policy for excusing absences of councilmembers, but that the city did not respond
to his requests. The City has not pointed to any evidence of a City policy or procedures
governing excusing absences, nor are we aware of any.
We think that this matter raises substantial questions of law and fact as to whether
Marquez vacated his council seat under Government Code section 36513(b). For
example, does the city have a policy for excusing absences? If a policy exists, is it
communicated to councilmembers? Is child care or illness a valid excuse for a city
councilmember’s absence from a meeting? If so, how and when must the excuse be
proffered? Does the city council have discretion to accept or deny a particular excuse for
absence, and must the city council pass a formal motion to excuse a particular
councilmember’s absence for the excuse to be valid, and the absence therefore permitted
under section 36513? In addition, were there “regular city council” meetings during the
relevant period, or was the period defined by section 36513 tolled during the council’s
summer recess? These and other relevant questions may be addressed and resolved in a
judicial proceeding. 10
9
See 100 Ops.Cal.Atty.Gen. 26 (2017).
See id. at p. 26 (granting leave to sue on claim office was vacated by absences under
10
Gov. Code, § 36513).
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3. Judicial Resolution Serves the Public Interest.
As a general rule, we view the need for judicial resolution of a substantial question
of fact or law as a sufficient “public purpose” to warrant granting leave to sue, absent
countervailing circumstances such as pending litigation of the issues or shortness of time
remaining in office. 11 We are not aware of any reason here to depart from our general
rule. In our view, the City, Councilmember Marquez, and the public have an interest in a
judicial determination whether Marquez vacated his seat by operation of law due to
absence without permission for more than 70 days, and judicial interpretation of
Government Code section 36513 would provide needed guidance to local agencies and
officeholders.
Accordingly, the application for leave to sue in quo warranto is GRANTED.
11
Ibid.
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