Schweisinger v. Jones

• Decision Date: 31 December 1998
• Docket Number: No. C028957,C028957
• Citation: 68 Cal.App.4th 1320,81 Cal.Rptr.2d 183
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 122, 98 Daily Journal D.A.R. 161 Craig A. SCHWEISINGER et al., Plaintiffs and Respondents, v. Bill JONES, as Secretary of State, etc., Defendant and Appellant.

Page 183

81 Cal.Rptr.2d 183

68 Cal.App.4th 1320, 99 Cal. Daily Op. Serv. 122,

98 Daily Journal D.A.R. 161

Craig A. SCHWEISINGER et al., Plaintiffs and Respondents, v. Bill JONES, as Secretary of State, etc., Defendant and Appellant.

No. C028957.

Court of Appeal, Third District, California.

Dec. 31, 1998.

Knox, Lemmon & Anapolsky, Thomas S. Knox, Angela L. Schrimp, and Glen C. Hansen, Sacramento, for Defendant and Appellant.

Strumwasser & Woocher, Fredric D. Woocher, Michael J. Strumwasser, Santa Monica, and Raleigh H. Levine, for Plaintiffs and Respondents.

MORRISON, J.

The People, acting through their reserved initiative powers, enacted the Political Reform Act of 1990, by passing Proposition 140 at the November 1990 General Election. Proposition 140 included a term limit for specified state officers, and was largely upheld by the California Supreme Court. (Legislature v. Eu (1991) 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309.)

Members of the Assembly are limited by Proposition 140 to three terms: "The Assembly has a membership of 80 members elected for 2-year terms. No member of the Assembly may serve more than 3 terms." (Cal. Const., art. IV, § 2, subd. (a).)

The trial court in this case concluded that a person who had served two terms and part of a third term was entitled to seek another term. This interpretation directly conflicts with the purpose of Proposition 140, as manifested by its language, and would lead to irrational results. We conclude that for purposes of the term limit provisions, service of any part of a term "counts" as service of a full term, with a single exception as drafted by the People. Accordingly, we reverse with directions.

I.

The voters of the 71st Assembly District chose Doris Allen to represent them in the 1990 General Election. She served her full term. Apparently as a result of re-districting (see Wilson v. Eu (1992) 1 Cal.4th 707, 780-781, 4 Cal.Rptr.2d 379, 823 P.2d 545), she ran for election in the 67th Assembly District in the 1992 and 1994 General Elections. The voters chose her to represent them each time. She served her full term following the 1992 election, and took office after the 1994 election. She served beginning in December 1994 and rose to the rank of Speaker of the Assembly.

At this point, the voters became dissatisfied with their chosen representative, and exercised their reserved power of recall; over 65 percent of the vote was against Allen. Allen was removed from office in November 1995.

In February 1998, Allen filed her declaration of intention to seek nomination to election to her former office, member of the assembly for the 67th Assembly District, in the June 1998 Primary Election.

Bill Jones, the Secretary of State, returned her filing papers, stating that acceptance of the papers would be contrary to Proposition 140. Allen and a constituent, Craig A. Schweisinger, filed a petition for writ of mandate against Jones in Sacramento County Superior Court. The court granted the petition. Jones timely appealed and sought writ relief.

We summarily denied Jones's application for writ relief from the trial court's decision. Thus, Allen's name appeared on the ballot at the 1998 Primary Election but the voters of Allen's party chose another candidate. Accordingly, there is no immediate relief at issue.

II.

Jones maintains that the appeal is not moot and the point merits discussion. Although Jones's position is not expressly disputed by Allen, a moot case cannot be forced on the court by acquiescence of the parties. (See National Assn. of Wine Bottlers v. Paul (1969) 268 Cal.App.2d 741, 746-747, 74 Cal.Rptr. 303.)

However, at bottom the case presents an important question of law which will certainly recur, but which, in the nature of the case, is likely to escape review. Further, the case is one of great public importance. (See DiGiorgio Fruit Corp. v. Dept. of Employment (1961) 56 Cal.2d 54, 58, 13 Cal.Rptr. 663, 362 P.2d 487; American Civil Liberties Union v. Board of Education (1961) 55 Cal.2d 167, 181-182, 10 Cal.Rptr. 647, 359 P.2d 45.) Allen and others who have served parts of terms are entitled to know the application of the term limit provision of the Constitution to their political aspirations. The time in which to obtain appellate review of election matters is severely compressed, due to the need to prepare ballots. (See, e.g., Fields v. Eu (1976) 18 Cal.3d 322, 325, 134 Cal.Rptr. 367, 556 P.2d 729.) In the event a person was elected and was later determined to be ineligible for office, a removal proceeding might be required, and, most importantly, the voters would be deprived of their chosen representative, necessitating another, costly, election. Finally, Jones is concerned about the possible preclusive effect of the Superior Court judgment, and claims of preclusion have at times been asserted in electoral cases. To avoid these problems, we shall decide the issue now.

III.

The provision at issue reads "The Assembly has a membership of 80 members elected for 2-year terms. No member of the Assembly may serve more than 3 terms." (Cal. Const., art. IV, § 2, subd. (a).) Two possible meanings are tendered. Allen construes "term" to mean a full term, so that she is not precluded from another term because she has served only two terms as of yet. Jones construes "term" as used in "serve more than 3 terms" to embrace any portion of a term.

"Term" has no fixed meaning. "[I]t is impossible to formulate any definition which will comprehend all of the uses made of the word. Therefore, it is necessary in each case to interpret 'term' so as to effectuate the statutory scheme pertaining to the office under examination. [Citations.] In doing so, we indulge in a presumption that constitutional and legislative provisions were not intended to produce unreasonable results. [Citation.]" (Barber v. Blue (1966) 65 Cal.2d 185, 188, 52 Cal.Rptr. 865, 417 P.2d 401; see Caldwell v. Bruning (1966) 64 Cal.2d 111, 117, 48 Cal.Rptr. 849, 410 P.2d 353.)

The primary purpose of Proposition 140 is to limit the advantages of incumbency and eliminate "a class of career politicians, instead of the citizen representatives envisioned by the Founding Fathers." (Cal. Const., art. IV, § 1.5.)

For four reasons, we conclude the language employed by the People, viewed in light of the purpose they sought to achieve, must be read to bar Allen from future election to the Assembly.

First, the People did not say that one may serve three terms, rather they said that "no member ... may serve more than 3 terms." This is a lifetime limitation. (Legislature v. Eu, supra, 54 Cal.3d at pp. 505-506, 286 Cal.Rptr. 283, 816 P.2d 1309.) Were Allen to serve a third full term, she would, in her post-Proposition 140 career, have ended up serving in office "more" than three terms--she would have served three terms plus part of a term. By virtue of the recall, she would be able to "serve" longer than colleagues who had not been recalled. The trial court's conclusion has the effect of validating Allen's "right" to finish her term, or of discounting the term. This is contrary to the normal understanding of a recall, which is an expression of the voters' dissatisfaction with an official. An official does not have the right to avoid the effects of a recall. (Bonner v. Belsterling (1911) 104 Tex. 432, 438, 138 S.W. 571, 575 ["the law provided for the recall at the time the plaintiff in error was elected to his office, and he took it upon the condition that the people might remove him from office"]; Hilzinger v. Gillman (1909) 56 Wash. 228, 235, 105 P. 471, 474; see Good v. Common Council (1907) 5 Cal.App. 265, 267-268, 90 P. 44 ["A responsible government, however, is the very foundation of the republican system, and there appears no reason why a representative should not be made to retire at any time at the request of the people, as well as at the end of a fixed period."].) An official who is recalled--or for that matter, has resigned or is impeached--should have no ability to "serve" a greater duration in office within the meaning of the California Constitution than one who has not. This result would violate the expressed will of the People. There is no ambiguity tendered about the meaning of "serve" or "term" which would account for this result. The only way Allen could avoid this result would be by leaving her last term after serving so much of her last term as, in effect, to complete the uncompleted portion of her aborted term. That possibility is absurd, both because there is no clear mechanism for enforcement and because it would necessitate a special election to fill the vacated seat. "As a general rule, there is a strong presumption against a legislative intent to create a condition which may result in a vacancy. [Citations.]" (Johnson v. Collins (1970) 11 Ariz.App. 327, 331, 464 P.2d 647, 651; see Brodie v. Campbell (1860) 17 Cal. 11, 22.) ["The consequence of the construction contended for by appellant would be to leave an interregnum in this important office, which we cannot suppose was designed by the Legislature."] State ex rel. Rogers v. Johnson (1925) 135 Wash. 109, 113, 237 P. 12, 13.) Therefore, by use of the phrase barring service of "more" than three terms, the People expressed the view that three terms is an absolute maximum, and did not provide for service of, say, three and one-half terms.

Second, in connection with the last statement, the People did allow for service of "more" than three terms in one limited exception which does not cover Allen's situation. A provision of Proposition 140 states that "[t]hose limitations shall not apply to any unexpired term to which a person is elected or appointed if the remainder of the term is less than half of the full term." (Cal. Const., art. XX, § 7.) This clarifies an ambiguity which might exist, regarding the "countability" of the remaining portions of vacant terms, that is, whether filling such position would constitute...