P. ex rel. Lacey v. Robles ( 2020 )

Filed 1/29/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE ex rel. JACKIE B290697
LACEY as District Attorney, etc.,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BC608075)
v.
ALBERT ROBLES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.
Albert Robles, in pro. per., for Defendant and Appellant.
Jackie Lacey, District Attorney, Phyllis Asayama and
Kenneth Von Helmolt, Deputy District Attorneys, for Plaintiff
and Respondent.
Albert Robles (Robles) served simultaneously as a member
of the board of directors of the Water Replenishment District of
Southern California (WRD) and as mayor of Carson, California.
The Los Angeles County District Attorney (District Attorney)
obtained permission from the Attorney General to sue Robles in
quo warranto, a Latin term for a legal proceeding that demands a
person show by what authority he or she exercises a public office.
In the quo warranto suit, the District Attorney argued Robles
was violating Government Code section 1099 (Section 1099),
which makes it unlawful to simultaneously hold incompatible
public offices—meaning, as relevant here, offices for which “there
is a possibility of a significant clash of duties or loyalties” based
on the powers and jurisdiction of the offices. (§ 1099, subd.
(a)(2).) The trial court agreed, removing Robles as a director of
the WRD. We now consider, in the main, whether the District
Attorney properly initiated the quo warranto action and whether
Robles’s two public offices are indeed incompatible within the
meaning of the statute.
I. BACKGROUND
A. Robles’s Dual Offices
The WRD serves 43 cities in southern Los Angeles County,
including Carson.1 The WRD is governed by a five-member board
1
“Prior to the formation of the [WRD], groundwater was
being produced from the Central Groundwater Basin . . . and the
West Coast Groundwater Basin (collectively Basins) that
provided water to residents in Los Angeles County in amounts
that ‘greatly exceeded natural replenishment, creating a
condition in the Basins known as “overdraft.” That overdraft
condition caused numerous problems, including drastic overall
decline of the elevation of the groundwater table and the
2
of directors, each of whom is assigned to represent one of five
geographic divisions. Prior to his removal from office, Robles
represented WRD division five, a division that includes Carson
within its boundaries. He was first elected to the WRD in 1992,
and he was re-elected continuously through November 2016 (his
most recent term was to expire in 2020).
The Water Replenishment District Act empowers the WRD
to replenish groundwater supplies by buying, selling, and
exchanging water; spreading, sinking, and injecting water into
aquifers; storing, transporting, recapturing, recycling, purifying,
and treating water; and building infrastructure. (Water Code,
§ 60221.) The WRD is also authorized to make expenditures and
take legal action to prevent contamination of, and remove
contaminants from, water basins. (Water Code, § 60224.)
The WRD board of directors charges a “replenishment
assessment” to fund its operating expenses and other activities.
(Water Code, § 60305.) The replenishment assessment is “levied
upon the production of groundwater from groundwater supplies
within the district during the ensuing fiscal year” and “fixed by
the board at a uniform rate per acre-foot of groundwater
produced.” (Water Code, § 60317.) Carson contracts with two
private companies to provide pumped groundwater to the city
and its residents, and the companies pay the WRD’s
intrusion of seawater into the Basins.’ As a result of these
concerns, in 1959 the [WRD] was formed by a vote of the citizens
of Los Angeles County and pursuant to the Water Replenishment
District Act enacted in 1955, codified at [Water Code] section
60000 et seq. . . .” (Water Replenishment Dist. of Southern
California v. City of Cerritos (2013) 220 Cal. App. 4th 1450, 1454
(Cerritos).)
3
replenishment assessment and pass on the cost in the water rates
they charge.
Having opted to levy a replenishment assessment, the
WRD board of directors is statutorily obligated to hold hearings
each year to “determin[e] whether and to what extent the
estimated costs thereof for the ensuing year shall be paid for by
[the] replenishment assessment.” (Water Code, § 60306.)
Members of the public can attend these hearings, and as Robles
testified during a deposition, residents in the area served by the
WRD do attend the assessment-setting hearings every year. City
council members (from cities other than Carson, Robles said) also
attend to object to the amount of proposed replenishment
assessments.
Beyond expressing views at a replenishment assessment
hearing, a party opposing a replenishment assessment may file a
“judicial action or proceeding to attack, review, set aside, void, or
annul a resolution or motion . . . levying a replenishment
assessment.” (Water Code, § 60317.) In addition, as mayor of
Carson, Robles can file—and has in the past filed—a protest with
the Public Utilities Commission to object to the rates being
charged by the two private water companies contracting with
Carson.
While serving as a WRD director, Robles opted to run for a
city council seat in Carson, and he was elected to the council in
March 2013.2 Late the following year, the District Attorney
2
Robles’s involvement in Carson politics, however, began
earlier. In 2012, for instance, he lobbied the Carson city council
not to join a lawsuit in which several neighboring cities
challenged the WRD’s 2010-2011 replenishment assessment as
an illegal tax under Article XIII D of the California Constitution
4
informed Robles he was holding two incompatible offices under
Section 1099, which meant under the law he would forfeit his
WRD directorship. Robles nonetheless continued to occupy both
offices, and in April 2015, Robles’s Carson city council colleagues
appointed him to fill the vacant office of mayor (as mayor he still
sits on the city council).
B. Quo Warranto Proceeding
In April 2015, the District Attorney applied to then-
Attorney General Kamala Harris for leave to sue Robles in quo
warranto. General Harris granted the application in a December
2015 published opinion, finding that “[w]hether the doctrine of
incompatible offices precludes [Robles] from simultaneously
serving as a director of the [WRD] and as city council member
and mayor for the City of Carson presents substantial questions
of fact and law warranting judicial resolution.” (98
Ops.Cal.Atty.Gen. 94 (2015).)
Having obtained the Attorney General’s leave to sue, the
District Attorney filed a complaint in quo warranto in January
2016. The complaint alleged Robles had “usurped, intruded into,
and unlawfully held and exercised the office of Director of the
WRD in violation of [Section 1099], and continued to do so once
he was sworn into the office of Mayor of the City of Carson . . . .”
The complaint further alleged the two offices were incompatible
under Section 1099 “because the WRD and the City of Carson
have overlapping territory, duties and responsibilities, and a
clash of duties is likely to arise in the exercise of both offices
(Proposition 218). (Cerritos, supra, 220 Cal.App.4th at pp. 1454-
1461.)
5
simultaneously.” The District Attorney sought Robles’s ouster
from the WRD board of directors under Section 1099 plus a fine
and costs under Code of Civil Procedure section 809.
At the November 2016 general election, when the mayoral
term the city council appointed him to fill was set to expire,
Robles was elected mayor of Carson. Later in 2017, with the quo
warranto proceeding well underway, the two public bodies on
which Robles sat (the WRD board of directors and the Carson city
council) took actions purporting to authorize him to
simultaneously hold both offices. Specifically, in December 2017,
the WRD board of directors adopted Resolution No. 17-1069,
amending the WRD’s administrative code to state WRD board
members may “hold positions in other governmental agencies and
cities within the District boundaries provided that the
governmental agency or city is not a groundwater pumper/or has
previously owned in the previous 25-years [sic] the right to pump
groundwater within the District.”3 A few days later, the Carson
city council passed an ordinance providing, with retroactive
effect, that elected or appointed officers of the city may
simultaneously hold certain other elected or appointed offices,
including on the WRD’s board of directors.4
3
At oral argument, Robles represented that the WRD also
enacted an ordinance to similar effect. As the trial court correctly
observed, however, the record includes only an unsigned copy of
the ordinance labeled “draft,” which “is not evidence of any WRD
action.”
4
The ordinance required a four-fifths majority to pass, and
Robles cast the deciding fourth vote approving the ordinance.
6
The trial court held hearings on the quo warranto
complaint in February and April 2018. At the first hearing, the
trial court determined Robles’s offices were incompatible under
Section 1099 because there were several possible ways in which
the duties and loyalties of both would conflict. These include
Carson’s potential interest in challenging replenishment
assessments, Carson’s power to make land use decisions
impacting the groundwater supply, the possibility that Carson
would acquire groundwater pumping rights and become even
more directly enmeshed with the WRD, and the prospect that the
WRD would negotiate to purchase public land in Carson to
construct water-related infrastructure.
After receiving supplemental briefing and holding a second
hearing, the trial court rejected Robles’s contention that he was
“compelled or expressly authorized by law” to hold both offices.
The court found the WRD’s enabling act does not permit it to
authorize holding of other public offices and, even if it did, a mere
resolution (which is what the WRD board of directors passed)
does not have the force of law. The trial court also rejected
Robles’s contention that the quo warranto proceeding must be
dismissed for lack of jurisdiction on the theory that the Attorney
General’s authorization to sue was no longer effective now that
he had been re-elected to both offices in November 2016 and the
terms he was serving at the time of the authorization had
expired.
Having determined Robles was in violation of Section 1099,
the trial court granted the District Attorney’s quo warranto
petition and, in May 2018, entered judgment removing Robles
from the office of WRD director. This appeal ensued.
7
II. DISCUSSION
We think it obvious that a shopkeeper who sets the prices
that customers must pay would face a real possibility of divided
loyalties if simultaneously selected to be a consumer advocate for
the customers who patronize the store.5 On our facts, Robles is
the shopkeeper—setting water replenishment assessments his
Carson constituents must ultimately pay (or legally protest).
Section 1099 forbids this sort of conflicted arrangement by
making it unlawful to hold multiple public offices where there is
a “possibility of a significant clash of duties or loyalties” between
them. (§ 1099, subd. (a)(2).)
All the ancillary arguments Robles advances to avoid quo
warranto removal as WRD director notwithstanding this conflict
in loyalties are unpersuasive. He contends, as we shall first
5
The memoirs of former President Ulysses Grant give us a
more colorful illustration of the example: “On one occasion, when
stationed at a post of several companies commanded by a field
officer, [Braxton Bragg] was himself commanding one of the
companies and at the same time acting as post quartermaster
and commissary. . . . As commander of the company he made a
requisition upon the quartermaster—himself—for something he
wanted. As quartermaster he declined to fill the requisition, and
endorsed on the back of it his reasons for so doing. As company
commander he responded to this, urging that his requisition
called for nothing but what he was entitled to, and that it was the
duty of the quartermaster to fill it. As quartermaster he still
persisted that he was right. In this condition of affairs Bragg
referred the whole matter to the commanding officer of the post.
The latter, when he saw the nature of the matter referred,
exclaimed: ‘My God, Mr. Bragg, you have quarreled with every
officer in the army, and now you are quarrelling with yourself!’”
(Grant, Personal Memoirs of U.S. Grant (1886) vol. II, pp. 86-87.)
8
discuss, the quo warranto suit should never have been brought
because the District Attorney is not a “private party” eligible to
sue under Code of Civil Procedure section 803 (Section 803), the
quo warranto statute. But Section 803’s use of the term “private
party” does not preclude public officers like the District Attorney
from suing in quo warranto where the Attorney General has
given her permission—as former Attorney General Harris did
here; the reference to “private” only serves to distinguish other
parties from the Attorney General, who may herself prosecute a
quo warranto action. Robles also claims the two public bodies on
which he sits consented to his holding of both offices so as to
invoke a proviso in Section 1099 that allows simultaneous
holding of even possibly conflicting offices when “compelled or
expressly authorized by law.” (§ 1099, subd. (a).) But that
statutory reference to “law” should be read as a reference to state
law, of which there is none exempting Robles, and regardless, the
WRD passed only a resolution approving Robles’s dual offices—
and a resolution is not “law.” Finally, the remaining handful of
arguments Robles raises seeking reversal of the trial court’s quo
warranto ruling are easily dispatched, as we shall explain.
A. The District Attorney Is a Proper Party to Sue Under
Section 803
“The quo warranto remedy is currently codified in section
803, and it is ‘the specific action by which one challenges “any
person who usurps, intrudes into, or unlawfully holds or exercises
any public office.”’” (Rando v. Harris (2014) 228 Cal. App. 4th 868,
875.) The text of Section 803, last amended in 1907, provides in
relevant part: “An action may be brought by the attorney-
general, in the name of the people of this state, upon his own
9
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 prominent role of the Attorney General has its origins
deep in British history for reasons largely irrelevant today.
[Citation.] The modern rationale is, ‘The remedy of quo warranto
is vested in the People, and not in any private individual or
group, because disputes over title to public office are viewed as a
public question of governmental legitimacy and not merely a
private quarrel among rival claimants . . . . [¶] . . . [¶] Although
the Attorney General occasionally brings a quo warranto action
on the initiative of that office, or at the direction of the Governor,
usually the action is filed and prosecuted by a private party who
has obtained the consent of the Attorney General, for “leave to
sue in quo warranto.” . . .’ [Citations.]” (Nicolopulos v. City of
Lawndale (2001) 91 Cal. App. 4th 1221, 1228.) The Attorney
General’s gatekeeping function “also ‘protects public officers from
frivolous lawsuits.’ [Citation.]” (Id. at p. 1229.)
The procedures by which a putative party other than the
Attorney General seeks leave to sue in quo warranto are set forth
in California Code of Regulations, title 11, sections 1 to 11, which
emphasize the Attorney General’s ongoing supervisory role after
granting a relator (i.e., a party suing on the People’s behalf) leave
to sue. (Cal. Code Regs., tit. 11, § 8 [“The Attorney General may
at all times, at any and every stage of the said proceeding,
withdraw, discontinue or dismiss the same, as to him may seem
fit and proper; or may, at his option, assume the management of
10
said proceeding at any stage thereof”]; see also People ex rel. City
of Downey v. Downey County Water Dist. (1962) 202 Cal. App. 2d
786, 803 (Downey).)
Here, there is no dispute the District Attorney sought and
obtained leave to sue Robles in quo warranto by following the
procedures established by the pertinent regulations. Robles
contends, however, that the Attorney General had no power to
authorize the District Attorney to sue because she is not a
“private party” eligible to serve as a relator under Section 803.6
Robles’s chief argument in support of this narrow understanding
of the language of Section 803 is that another code section
exclusively defines the circumstances under which a local
government entity may prosecute a quo warranto action.
The code section Robles cites, Code of Civil Procedure
section 811, provides that a quo warranto action “may be
maintained by the board of supervisors of any county or city and
county or the legislative body of any municipal corporation,
respectively, in the name of such county, city and county or
municipal corporation against any person who usurps, intrudes
into or unlawfully holds or exercises any franchise, or portion
thereof, within the respective territorial limits of such county,
city and county or municipal corporation and which is of a kind
6
Robles did not make this argument during the proceedings
below; there was no challenge that the District Attorney was
statutorily ineligible to prosecute the quo warranto action. The
issue is therefore forfeited on appeal, but we exercise our
discretion to address the point because it involves a pure question
of law on a subject of significant public interest. (Cedars-Sinai
Medical Center v. Superior Court (1998) 18 Cal. 4th 1, 6-7 & fn. 2;
City of San Diego v. Boggess (2013) 216 Cal. App. 4th 1494, 1503.)
11
that is within the jurisdiction of such board or body to grant or
withhold.” According to Robles, it was improper for the District
Attorney to proceed under Section 803 when the County Board of
Supervisors could have proceeded under Code of Civil Procedure
section 811. But unlike Section 803, which provides for quo
warranto actions involving both offices and franchises, Code of
Civil Procedure section 811 addresses only the latter. The
County Board of Supervisors therefore could not have sued to
oust Robles from his WRD office under this section.
Furthermore, Code of Civil Procedure section 811 does not
limit public officers’ eligibility to serve as relators under Section
803. Rather, it defines circumstances under which a local
government entity may file a quo warranto complaint in its own
name, i.e., without obtaining the Attorney General’s consent to
bring an action in the name of the People of the State of
California. (See City of Oakland v. Hogan (1940) 41 Cal. App. 2d
333, 344-345 [“Section 811 of the Code of Civil Procedure gives
the right to a board of supervisors or the legislative body of a
municipal corporation, in the name of the county or in the name
of the municipality, to bring an action in quo warranto”]; San
Ysidro Irrigation Dist. v. Superior Court of San Diego County
(1961) 56 Cal. 2d 708, 716 (San Ysidro) [“‘The provisions of
Section 811 apparently are desirable for two reasons: (1) They
permit such actions to be maintained by local bodies, which
usually have a very direct and immediate interest in preventing
the usurpation of such franchise; (2) The Attorney General may
be relieved of the necessity of maintaining such an action if the
local body proceeds to do so’”].)
In rejecting Robles’s understanding of Section 803, we are
convinced the statute’s reference to a “private party” serves only
12
to distinguish the Attorney General from others, public or
private, that she may authorize to sue. Present and past
Attorneys General have “never interpreted the language of
section 803 in such a narrow manner as to exclude public officers
and agencies from qualifying as relators” (76 Ops.Cal.Atty.Gen.
157, 163 (1993)), and even more important, there is a bevy of
published case law in which public entities have brought quo
warranto actions on behalf of the People of the State of
California. (See, e.g., People ex rel. City of Commerce v.
Argumedo (2018) 28 Cal.App.5th 274, 278-279 [city “sought
permission from the California Attorney General to sue [city
council member] in quo warranto, pursuant to [Section 803]”];
People ex rel. City of Bellflower v. Bellflower County Water Dist.
(1966) 247 Cal. App. 2d 344, 345 [city brought quo warranto action
to challenge existence of water district]; see also San Ysidro,
supra, 56 Cal.2d at p. 714 [citing Attorney General’s opinion in
another case that “a municipal corporation has no status
different from a ‘private person’ in testing the validity of the
existence of another political subdivision and so is subject to
[Section 803]”].) We therefore hold the former Attorney General
properly deputized the District Attorney under Section 803 to
bring this quo warranto action.
B. Robles’s Dual Offices Are Incompatible Because They
Give Rise to a Possibility of a Conflict In Duties or
Loyalties and There Is No “Law” Compelling or
Expressly Authorizing Him to Hold Both Offices
In a quo warranto action, the person holding multiple
offices—not the party suing in quo warranto—has the burden to
prove the offices are compatible. (People ex rel. Stephenson v.
13
Hayden (1935) 9 Cal. App. 2d 312, 313; People ex rel. Smith v. City
of San Jose (1950) 100 Cal. App. 2d 57, 59 [“‘“It was a peculiarity
of both the common-law writ of quo warranto and information in
the nature of quo warranto that the ordinary rules of pleading
were reversed and the state was bound to show nothing”’”].)
Robles does not dispute the trial court’s factual determinations
concerning the functions of his two offices, but he contends the
trial court applied incorrect legal standards in concluding they
are incompatible.
1. A possible clash of duties or loyalties
Section 1099 prohibits public officers from simultaneously
holding two incompatible public offices. (§ 1099, subd. (a).) With
one exception, offices are incompatible if “(1) Either of the offices
may audit, overrule, remove members of, dismiss employees of, or
exercise supervisory powers over the other office or body. [¶] (2)
Based on the powers and jurisdiction of the offices, there is a
possibility of a significant clash of duties or loyalties between the
offices. [¶] (3) Public policy considerations make it improper for
one person to hold both offices.” (§ 1099, subd. (a).) The
exception applies when “simultaneous holding of the particular
offices is compelled or expressly authorized by law”; in that
circumstance, the offices are not deemed incompatible even if one
(or more) of the three aforementioned circumstances is true.
(§ 1099, subd. (a).) A public officer holding incompatible offices
“shall be deemed to have forfeited the first office upon acceding to
the second.”7 (§ 1099, subd. (b).)
7
Enactment of Section 1099 was meant to codify the
common law rule prohibiting an individual from holding
incompatible public offices. (§ 1099, subd. (f).) An uncodified
14
Section 1099’s definition of incompatible offices is not
materially different from the formulation recited in an Attorney
General quo warranto opinion that is described as the “impetus”
for codifying the common law rule against holding incompatible
offices. (Assem. Jud. Com., Analysis of Sen. Bill No. 274 (2005-
2006 Reg. Sess.) July 5, 2005, p. 3.) That opinion authorized a
quo warranto suit against Blanca Rubio, who was serving as a
director of a water district and as a trustee of a school district
within the same water district. (87 Ops.Cal.Atty.Gen. 153, 153
(2004) (the Rubio Opinion).) Citing prior Attorney General
opinions that rely, among other things, on a 1940 case decided by
our Supreme Court (People ex rel. Chapman v. Rapsey (1940) 16
Cal. 2d 636 (Rapsey)), the Rubio Opinion states the following test
for incompatibility, which was later incorporated in Section 1099:
“‘Offices are incompatible if one of the offices has supervisory,
auditory or removal power over the other or if there would be any
significant clash of duties or loyalties in the exercise of official
duties. Only one potential significant clash of duties or loyalties
is necessary to make offices incompatible.’ [85 Ops.Cal.Atty.Gen.
60, 61 (2002).]” (87 Ops.Cal.Atty.Gen. 153, 154 (2004).)
The facts and holding of the Rapsey decision cited in the
Rubio Opinion help illustrate the meaning of the key provision in
section of Senate Bill No. 274, the legislation that added Section
1099 to the Government Code, emphasizes that “[n]othing in this
act is intended to expand or contract the common law rule
prohibiting an individual from holding incompatible public
offices. It is intended that courts interpreting this act shall be
guided by judicial and administrative precedent concerning
incompatible public offices developed under the common law.”
(Stats. 2005, ch. 254, § 2.)
15
Section 1099 for purposes of this appeal, namely, the one
deeming offices incompatible if they present the possibility of a
significant clash of duties or loyalties. The defendant in Rapsey
held the positions of city judge and city attorney in San Bruno.
(Rapsey, supra, 16 Cal.2d at p. 637.) The defendant maintained
the two positions were compatible because the city attorney was
not required to “appear before the city court in connection with
prosecutions which might arise under any of the city ordinances.”
(Id. at p. 643.) Our Supreme Court rejected that view, concluding
it was “obvious that [the defendant] may be required from time to
time to appear before the city judge and prosecute or defend
actions to which the city is a party.” (Ibid., italics added.) This
prospect rendered the duties of the offices “‘repugnant’” because
in that circumstance the defendant could “‘only perform the
duties of one office by neglecting to perform the duties of the
other.’” (Ibid.)
In its analysis, the Rapsey court surveyed case law and
commentary applying the common law of incompatible offices.
The authorities the Rapsey court reviewed varied to some degree
in describing how severe a clash between duties or loyalties must
be to render two offices incompatible. (Rapsey, supra, 16 Cal.2d
at pp. 641-642.) But the holding in Rapsey and the authorities
quoted are unanimous, however, that a clash of duties or loyalties
need not actually be realized to render two offices incompatible.
Rather, incompatibility is determined by the functions of the two
offices in the abstract and there need not be a showing that an
officeholder’s loyalties actually have been tested—or that it is
inevitable they will be tested—for the offices to be incompatible.
(Ibid. [“‘Incompatibility arises . . . from the nature of the duties of
16
the offices’”]; see also id. at p. 642 [“‘where the functions of two
offices are inconsistent, they are regarded as incompatible’”].)
This principle has been adopted and applied in myriad
subsequent Attorney General opinions, including the Rubio
Opinion. (87 Ops.Cal.Atty.Gen. 153, 154 (2004) [“Whether an
actual conflict in duties has previously occurred in the two offices
is not determinative since it is sufficient that a conflict may occur
‘in the regular operation of the statutory plan’”]; see also 63
Ops.Cal.Atty.Gen. 623, 626 (1980) [“The fact that some of our
opinions had analyzed the question of incompatibility from the
viewpoint of actual conflict does not detract from the fact that
potential as well as actual conflicts of duties and loyalties are
encompassed by the doctrine”]; 67 Ops.Cal.Atty.Gen. 409, 414
(1984); 101 Ops.Cal.Atty.Gen. 56, 61-62 (2018).) More important,
Section 1099 itself adopts this principle in its text, stating a
possibility of a significant clash of duties or loyalties is what
renders two offices incompatible.8 (§ 1099, subd. (a)(2); Oxford
8
The sound prophylactic rationale that supports the
principle is summarized in a more recent 2010 Attorney General
opinion: “The rule does not await the occurrence of an actual
clash before taking effect, but intercedes to prevent it; the mere
possibility of a conflict is sufficient to make two offices
incompatible. . . . Regardless of the honor or integrity of the
incumbent, one individual cannot hold two incompatible offices at
the same time. It is the nature of the office, not the character of
the individual, that determines the rule’s application. The
essence of the doctrine of incompatible offices is that a public
officer should never be in the position of having to disqualify
himself or herself from performing the functions of one office
because he or she happens to be the incumbent of another office.
‘He can only perform the duties of one office by neglecting to
perform the duties of the other. It is not for him to say in a
17
English Dict. Online (2019)
[as of Oct. 18, 2019] [“possibility” includes “[t]he
condition or quality of being possible; capability of existing,
happening, or being done (in general, or under particular
conditions). Also: contingency, likelihood, chance”], archived at
.)
Notwithstanding the plain meaning of Section 1099, Robles
contends that offices are compatible unless there is a “concrete”
conflict capable of repetition. Robles claims support exists for his
reading of the statute in Rapsey’s observation that “it is obvious
that [the defendant, in his role as city attorney,] may be required
from time to time to appear before the city judge.” (Rapsey,
supra, 16 Cal.2d at p. 643.) But that observation hurts, not
helps, Robles’s case. Our Supreme Court’s use of the word “may”
describes a possible state of affairs, i.e., circumstances that might
or might not come to pass. (Oxford English Dict. Online (2019)
[as of Oct. 28, 2019] [various
definitions of “may,” including: “7. Expressing present subjective
possibility, i.e. the admissibility of a supposition, in a direct or
indirect statement”], archived at .) That possibility, however, was enough for the Rapsey
court to conclude the two offices in question were incompatible.
We therefore approach the question in this case with the
appropriate common law and statutory framing in mind: not
particular instance which he will perform and which he will not.
The public has a right to know with certainty.’” (93
Ops.Cal.Atty.Gen. 110, 111 (2010).)
18
whether such a clash for a WRD director who is simultaneously a
mayor and councilmember for a city within the WRD’s
boundaries is inevitable or more likely than not, but whether it is
possible.
The trial court found several significant clashes of duties or
loyalties would possibly arise from Robles’s simultaneous holding
of the WRD and Carson offices, but only one is necessary to
create a problematic conflict under Section 1099. (§ 1099, subd.
(a)(2) [offices are ordinarily incompatible if “there is a possibility
of a significant clash of duties or loyalties”], italics added.) We
focus on the WRD’s replenishment assessment authority, and as
already foreshadowed, we are convinced Robles has not carried
his burden to show, considering the powers and jurisdiction of his
dual offices, there is no possibility of a significant clash of duties
or loyalties.
As a WRD director, Robles must set the replenishment
assessment levies each year that will ultimately be paid by his
constituents in Carson, among others (and the city itself, as
government buildings and agencies are concerned). Just as in
Rapsey, it is obvious this may give rise to conflicts: as mayor and
a councilmember, Robles faces at least a short-term electoral
incentive—if not an office-holding duty—to minimize the amount
of the replenishment assessment those in Carson must pay. As a
WRD director, on the other hand, Robles’s duties and loyalties
point largely in the opposite direction and require his chief
concern in setting the amount of the replenishment assessment
to be ensuring the adequacy of the groundwater supply, not the
financial impact of the assessment on the cities and residents
that must pay it.
19
Though not necessary to our conclusion, the historical
record shows the conflict in the powers and jurisdiction of the
offices we have described is not merely a theoretical one. In
deposition, Robles confirmed local residents appear at the
replenishment assessment setting hearings every year and even
city council members from affected cities attend to object to
proposed assessments. Though the record does not tell us in
what cities live the residents who have appeared at these
hearings nor what cities have been represented by the officials
who have attended, it is quite possible that Carson residents
have appeared or may appear in the future to object to proposed
replenishment assessments, which would put Robles in the
difficult (we would say unlawful) position of trying to balance
countervailing incentives and duties. Furthermore, objections to
replenishment assessments have in the past ripened into
litigation between cities and the WRD. (See, e.g., Cerritos, supra,
220 Cal. App. 4th 1450.) If past is indeed prologue (Shakespeare,
The Tempest, act II, scene 1, line 289), it is certainly possible
disputes between the WRD and its customers—cities and
residents in the area the WRD covers—will again arise. And
even if such a dispute does not first arise between Carson and the
WRD, there is a distinct possibility that Carson will be asked to
take sides, as evidenced by Robles’s efforts in 2012 to lobby the
Carson city council not to join the Cerritos litigation. Perhaps it
goes without saying, but there is little better example of divided
duties or loyalties than being a party on both sides of a lawsuit—
or even, for that matter, being forced to pick a side.
Section 1099 is meant to ensure a conflict in duties or
loyalties between public offices never materializes. We are
confident here the trial court correctly concluded Robles did not
20
carry his burden to show there is no possible significant clash of
duties with respect to Robles’s WRD role in setting
replenishment assessments and acting as an advocate for Carson
residents and government agencies as water consumers.
2. Holding both offices is not compelled or
expressly authorized by law
Notwithstanding the conflict in duties and loyalties we
have identified, Section 1099 does not deem offices beset by such
a conflict incompatible if “simultaneous holding of the particular
offices is compelled or expressly authorized by law.” (§ 1099,
subd. (a).) Robles maintains this exception of sorts applies here
because the WRD board of directors on which he sits passed a
resolution (stated in general terms but obviously meant to apply
to him) authorizing directors to hold positions in other
governmental agencies and cities within the District boundaries
and because the city council on which he sits approved an
ordinance (with his deciding vote) retroactively authorizing city
elected or appointed officials to simultaneously hold office as a
director of the WRD or on certain other public bodies. We reject
Robles’s reliance on the “compelled or expressly authorized by
law” proviso in Section 1099 for two reasons: first, the
Legislature’s reference to “law” is best understood as a reference
to state, not local, law, and second, even if the reference to “law”
could be understood to allow local jurisdictions to deem offices
compatible notwithstanding a possible conflict in duties or
loyalties, all of the affected office-holding local jurisdictions must
enact such a law. Here, the WRD has no authority to authorize
its board members to hold incompatible offices and a WRD
resolution is not law for purposes of Section 1099.
21
Discussing the first of these reasons first, the most natural
reading of the Legislature’s unqualified use of the term “law” in
Section 1099 is as a reference to law passed by the same body
that enacted Section 1099, i.e., state law.9 Even more to the
point, however, that understanding of the statute is confirmed by
its drafting history.
The Legislature settled upon Section 1099’s “compelled or
expressly authorized by law” provision only after first proposing
draft language that stated there would be exemptions to the
prohibition on holding offices with conflicting duties or loyalties
“as provided in [Government Code] Sections 1128 and 1129” and
“as provided by local ordinance.” (Sen. Bill No. 274 (2005-2006
Reg. Sess.) as introduced Mar. 29, 2005.) In its analysis of this
earlier draft of the statutory language, the Senate Local
Government Committee warned that “[l]ocal loopholes loom[ed]”
because “[a]ny time the Attorney General finds conflicts, local
officials could wiggle out of the problem by persuading their
colleagues to adopt local ordinances.” (Sen. Local Gov. Com.,
Analysis of Sen. Bill No. 274 (2005-2006 Reg. Sess.) Apr. 6, 2005,
p. 3.) By removing the “as provided by local ordinance” clause,
the Legislature eliminated the risk of such loopholes and
reserved for itself the sole power to create exceptions to Section
1099.10
9
Insofar as public officers may be compelled or authorized to
occupy certain offices under federal law, there would be no need
to specify that “law” includes federal law. The Legislature would
know that under well-established supremacy principles, federal
law would preempt state law to the contrary.
10
Robles contends Section 1099 preserved a common law rule
that local bodies may authorize individuals to hold incompatible
22
This legislative intention is borne out by historical practice
prior to Section 1099’s enactment, at least with respect to dual
office-holding of the type at issue here. In 1990 (years before the
Legislature enacted Section 1099), the Legislature made a WRD-
specific exemption to the common law incompatible offices
doctrine by passing legislation that did allow WRD directors to
simultaneously serve as elected city officials. The WRD,
however, lobbied against the legislation—arguing it would give
rise to unacceptable conflicts11—and the Legislature repealed it
offices. The cases he cites for such a rule, however, merely
confirm the Legislature’s ability to do so. (See American Canyon
Fire Protection Dist. v. County of Napa (1983) 141 Cal. App. 3d
100, 104 [“We conclude that the Legislature has chosen to
abrogate the common law”]; McClain v. County of Alameda (1962)
209 Cal. App. 2d 73, 79 [“There is nothing to prevent the
Legislature, however, from allowing, and even demanding, that
an officer act in a dual capacity”].) Although the Attorney
General opined, prior to Section 1099’s enactment, that “a charter
city may abrogate the common law rule [against holding
incompatible offices] by appropriate legislation” (82
Ops.Cal.Atty.Gen. 201, 204), any such power does not itself
derive from the common law. (Ibid.; 66 Ops.Cal.Atty.Gen. 293,
296-298.) Thus, the Legislature’s expressed intention not to
“expand or contract” the common law (Stats. 2005, ch. 254, § 2)
does not demonstrate it intended to permit locally authorized
exceptions to Section 1099. Indeed, the available legislative
history we have already discussed confirms the opposite, i.e., that
the Legislature intended to occupy the field on a matter of
statewide concern and preclude “local loopholes.” (See T-Mobile
West LLC v. City and County of San Francisco (2019) 6 Cal.5th
1107, 1116 [discussing preemption principles generally].)
11
In a letter to the Governor urging repeal of the exception,
the then-president of the WRD argued: “Elected public officials
23
the following year. (Assem. Com. on Local Gov., Analysis of
Assem. Bill No. 2231 (1991-1992 Reg. Sess.) Mar. 14, 1991, p. 2;
Stats. 1991, ch. 1176, § 3.) This history provides further evidence
that when the Legislature enacted a statute that allowed holding
possibly conflicting public offices if “compelled or expressly
authorized by law,” it had in mind state laws of the type it had
earlier enacted and repealed. We are therefore of the view that
the Carson ordinance and WRD resolution enacted here cannot
make Robles’s occupancy of two offices compatible by being
“compelled or expressly authorized by law.”
Moreover, even assuming for argument’s sake that
“compelled or expressly authorized by law” were meant to include
local law, not just state (or federal) law, the trial court was
correct that the WRD lacks authority to authorize a board
member to hold incompatible offices. The WRD resolution in
question includes a boilerplate reference to the WRD’s
“legislative authority” in a preamble, but the resolution cites no
provision of the WRD’s enabling legislation giving it the power to
permit board members to hold incompatible offices. To the
contrary, “[w]ith the exception of powers related to groundwater
contaminants, WRD’s power may be exercised only for
replenishment purposes. ([Water Code] §§ 60221, 60224, 60230.)”
(Central and West Basin Water Replenishment Dist. v. Southern
should not be permitted to make decisions for two entities with
conflicting responsibilities. Among other things, a
Replenishment District has the power to levy groundwater
pumping assessments on cities, has the power of eminent
domain, and frequently enters into contracts with cities within its
boundaries. These are all areas where conflicts are likely, and
where a single elected official should not serve both districts.”
24
Cal. Water Co. (2003) 109 Cal. App. 4th 891, 897.) Even the
broadest grant of power to replenishment districts, Water Code
section 60220’s provision that a replenishment district “may do
any act necessary to replenish the ground water of said district,”
is not plausibly read to support a resolution intended to exempt
board members from Section 1099. Nothing in the record
suggests Robles’s presence—especially while simultaneously
holding an incompatible office—is necessary to the WRD’s
functioning.
Robles’s related contention that the Carson ordinance alone
is sufficient to trigger the Section 1099 compelled or authorized
exception cannot be reconciled with the rationale underlying the
incompatible offices doctrine. Incompatibility is a two-way street.
The Carson ordinance does not direct city council members who
hold incompatible offices to put the duties of their other office
first in all instances. In other words, the Carson ordinance does
not eliminate the possibility of a significant clash of duties or
loyalties—it accepts that possibility. Even if the residents of
Carson can live with a conflicted mayor, they cannot decide for
the residents of the 42 other cities within the WRD’s boundaries
that a conflicted WRD board member is acceptable.
C. The District Attorney Was Not Required to Re-Apply
for Leave to Maintain the Quo Warranto Suit
Robles had just over 10 months left to serve in his elected
WRD board term and his appointed Carson mayoral term when
the Attorney General granted the District Attorney leave to sue
in late 2015. In discussing general principles Attorneys General
have applied in determining whether a quo warranto action
would serve the public interest, the Attorney General opinion
25
authorizing this action explained that, generally, “the need for
judicial resolution of a substantial question of fact or law [i]s a
sufficient ‘public purpose’ to warrant granting leave to sue,
absent countervailing circumstances not present here (such as
pending litigation or shortness of time remaining in the term of
office).” (98 Ops.Cal.Atty.Gen. 94, 101 (2015).) The Attorney
General concluded leave to sue should be granted
notwithstanding the prospect that Robles’s terms in office might
expire before the quo warranto action concluded.
Though the District Attorney obtained the Attorney
General’s authorization to sue without temporal limitation and
filed the quo warranto action before the term Robles was then
serving expired, Robles contends the District Attorney was
required to re-apply for leave to sue when he began serving new
terms upon his election to both offices in November 2016. In so
contending, Robles relies on the reasoning in an 1895 Supreme
Court case: “Each term of an office is an entity separate and
distinct from all other terms of the same office. If [an
officeholder] violate[s] any duty imposed upon him as an
incumbent of the office . . . during a former term the law
furnishes a mode or modes for his punishment; but to remove him
from an office to which he has been subsequently elected is not
the punishment for such violation of duty prescribed by any law
of this state.” (Thurston v. Clark (1895) 107 Cal. 285, 288
(Thurston).)
Thurston, however, has no relevance to quo warranto
proceedings; the officeholder in Thurston faced removal under a
former Penal Code statute repealed in 1929. (Thurston, supra,
107 Cal. at p. 287.) That statute permitted removal of an
officeholder for misconduct in office, and construed strictly as a
26
penal statute, the Thurston court concluded this “in office”
language must be understood to permit removal only while
serving the term during which the misconduct occurred. (People
v. Cherry (1989) 209 Cal. App. 3d 1131, 1133.) Section 1099 is not
a penal statute, however, and regardless, it admits of no similar
“in office” limitation.
Moreover, even if the Thurston holding were found to have
some bearing on civil quo warranto proceedings, it would not
dictate a different result here. Robles was not removed from the
WRD board of directors because of some discrete act of
misconduct prior to November 2016. He was removed from his
position because he continuously occupied incompatible offices
both before and after November 2016. Robles held both offices
when the Attorney General authorized the quo warranto
proceeding, and he held both offices when the trial court rendered
its decision removing him from the office of WRD director. That
is all that was necessary.12
12
Beyond being legally unnecessary, requiring a party
bringing a quo warranto action to seek leave to maintain an
already-filed lawsuit upon a dual officeholder’s commencement of
new terms of office is also practically unnecessary. Under settled
law, “[t]he Attorney General may at all times, at any and every
stage of [a quo warranto] proceeding, withdraw, discontinue or
dismiss the same, as to him may seem fit and proper; or may, at
his option, assume the management of said proceeding at any
stage thereof.” (Cal. Code Regs., tit. 11, § 8; see also Downey,
supra, 202 Cal.App.2d at p. 803 [“A quo warranto proceeding
brought in the name of the People is not to redress the wrongs of
the relator nor to enforce its rights; it is in no legal sense under
the relator’s control”].) There is no need to seek authority from
the Attorney General to maintain an already-filed quo warranto
27
D. The Order Precluding Robles from Deposing the
District Attorney Was Not an Abuse of Discretion
During discovery, the District Attorney moved for a
protective order prohibiting Robles from taking her deposition.
Robles contended he was entitled to take the District Attorney’s
deposition because, based on his understanding of Section 803,
she was necessarily suing him in her capacity as a private citizen.
The trial court rejected this premise, found the District Attorney
had no unique or superior knowledge concerning the quo
warranto action, and issued the protective order. The trial court
also indicated, although no motion was then before it, that it was
“likely” to grant a motion for a protective order prohibiting Robles
from taking the deposition of the deputy district attorney
handling the case.
Robles contends the District Attorney cannot
simultaneously qualify as a “private party” for purposes of
Section 803, the quo warranto statute, and as the head of a public
agency for purposes of the discovery rules under which the trial
court issued the protective order prohibiting Robles from taking
her deposition. (See generally Nagle v. Superior Court (1994) 28
Cal. App. 4th 1465, 1467-1468 [“It is the general rule in California
and federal courts that the heads of agencies and other top
governmental executives are normally not subject to depositions”]
(Nagle).) As we have explained, however, the term “private
party” in Section 803 is meant only to refer to individuals or
entities other than the Attorney General. Absent a showing that
the District Attorney had direct personal factual information
lawsuit because the Attorney General at any time may assume
control of the prosecution of the action or dismiss it.
28
pertaining to material issues in this case that is not available
through any other source—a showing Robles did not make—he
was not entitled to take the District Attorney’s deposition.
(Nagle, supra, at p. 1468; Contractors’ State License Bd. v.
Superior Court (2018) 23 Cal.App.5th 125, 132.)
In addition to arguing the trial court improperly issued a
protective order as to the District Attorney, Robles contends the
trial court improperly “refused to allow” him to depose trial
counsel. The trial court did not, however, prohibit Robles from
noticing a deposition of the deputy district attorney—it merely
indicated it was “likely” to issue a protective order if the issue
were presented. The issue never was presented, though, and
Robles cannot obtain reversal by challenging an order the trial
court never made.
E. The Trial Court Did Not Rely on Evidence It Excluded
Robles contends the trial court’s conclusions are based on
evidence it previously excluded as inadmissible. He suggests a
declaration submitted by a deputy district attorney was “gutt[ed]”
by three sustained objections, observes the declaration is cited 88
times in the trial court’s decision, and leaves it to us to infer that
some number of these citations must be to inadmissible
statements. The trial court’s evidentiary rulings left most of the
declaration untouched, however, and the court’s conclusions are
not based on statements ruled inadmissible.
29
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on
appeal.
CERTIFIED FOR PUBLICATION
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
30