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History of charter counties shows limits on terms limits

By From page A1 | July 25, 2014

A state law, put into effect after two court cases, prevents the El Dorado County Charter Review Committee, and by extension the Board of Supervisors, from limiting terms for elected department heads.

This was the conclusion of previous committee Chairperson Cris Alarcon in his published notes from 2010. “The Supreme Court of California has ruled that the California Constitution does not allow term limits within a County Charter,” Alarcon wrote.

He cited Younger v. Board of Supervisors, 1979, “which held that counties are political and legal subdivisions of the state and, as such, can do only that which is authorized by state law or the state Constitution. When challenged, however, the court ruled that the county Board of Supervisors never had the authority to place the matter before the public, since no law authorized interfering with the number of times the public can elect a county officer.”

The official opinion of the case stated that the San Diego Board of Supervisors attempted to limit all county elected offices to three consecutive four-year terms or two consecutive six-year terms through a charter amendment in 1976. Voters approved of the amendment, as had happened in both Los Angeles County and El Dorado County (two terms for the supervisors), but state Attorney General Evelle J. Younger and San Diego County District Attorney Edwin L. Miller saw it as a violation of the state Constitution.

The state Supreme Court agreed with Younger and Miller. “We conclude the power of a county operating under a charter permitting local self-government is nevertheless restricted to the authority granted by the state Constitution. We hold (the amendment) unconstitutional for it is an enactment in excess of the county’s authority.” 

This decision was upheld in Cawdrey v. City of Redondo Beach, 1993. The city charter had been amended in 1975 to limit city council members and the mayor to two terms. “The amendment provides no person shall serve more than two terms, whether consecutive or not. In the case of council members, the two-term limitation applies regardless of the districts represented,” the official opinion stated. 

In 1990, Ronald Cawdrey petitioned the city clerk to run for a third term as a council member, but the clerk declined the nomination. Cawdrey and a supporter, Mark Conte, appealed the decision. They “sought a writ of mandate from the Superior Court commanding the city to accept Cawdrey’s nomination papers and to place his name on the ballot. They also sought to enjoin enforcement of charter section 26,” the section pertaining to term limits. 

The pair contended that “the California Constitution does not authorize charter cities to limit the tenure in office of their elected officials,” that “the authority of charter cities to limit the tenure in office of their elected officials is preempted by state law” and the section “violates the constitutional guarantees of free speech and equal protection.”

While the state Supreme Court ruled that the charter city had the power to limit terms as charter cities have power over “municipal affairs,” the ruling for charter counties from Younger was upheld as counties are legal subdivisions of the state and thus subject to the state Constitution.

The Cawdrey decision led to the state Legislature adding Government Code 25000(b) to state law, Alarcon wrote.

The code states: “Notwithstanding any other provision of law, the board of supervisors of any general law or charter county may adopt or the residents of the county may propose, by initiative, a proposal to limit or repeal a limit on the number of terms a member of the board of supervisors may serve on the board of supervisors. Any proposal to limit the number of terms a member of the board of supervisors may serve on the board of supervisors shall apply prospectively only and shall not become operative unless it is submitted to the electors of the county at a regularly scheduled election and a majority of the votes cast on the question favor the adoption of the proposal.”

As there is no mention of elected heads, it has been interpreted that boards can only limit themselves. “It clearly addresses only the Board of Supervisors members themselves,” Alarcon wrote. “The statute does not authorize the board to place an initiative before the people regarding the number of terms to be served by the offices of Sheriff, District Attorney or Assessor,” he continued. “Therefore, the only initiative which could be lawfully voted upon by the people was one to establish term limits on the board members themselves, and only on the board members.”

The issue, Alarcon wrote, could be handled by a separate referendum that did not involve the board or charter. “Term limits may be separately addressed by the voters but not,” he emphasized, “as part of the charter. Elimination from the charter removes this issue from legal attack. Should term limits be considered, they should be considered by voters in referendum separate and apart from the charter.”

Alarcon voiced his opinion to keep the section of the charter in its entirety as they did not have the power to change term limits other than the board. “Term Limits were not rejected in 1979 because they were in a County Charter, but because term limits were not legally authorized in California in 1979. This changed after 1993; term limits were voted on as a single issue by voters in El Dorado County, and this issue won by the widest margin of any other issue in that election. This is both legal and the will of the people of El Dorado County.”

The committee voted 4-1 to eliminate the section, with Alarcon being the dissenting vote. However, the board rejected the committee’s recommendations as the committee ultimately only recommended the revocation of the entire charter.

Alarcon did not respond to a request for comment.

The County Charter, including an amendment for term limits for the Board of Supervisors, was ratified Nov. 8, 1994.

Cole Mayer

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