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Arntz v. Superior Court of the City and County of San Francisco

August 24, 2010

JOHN ARNTZ ET AL., PETITIONERS,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, RESPONDENT;
MICHELA ALIOTO-PIER, REAL PARTY IN INTEREST.



(San Francisco City & County Super. Ct. No. CGC-10-500796). Honorable Peter J. Busch.

The opinion of the court was delivered by: Richman, J.

CERTIFIED FOR PUBLICATION

The voters of the City and County of San Francisco imposed term limits on their board of supervisors in 1990 by putting this language into the City Charter: "No person elected or appointed as a Supervisor may serve as such for more than two successive four-year terms. Any person appointed to the office of Supervisor to complete in excess of two years of a four-year term shall be deemed, for the purpose of this section, to have served one full term." (S.F. Charter,*fn1 § 2.101 (section 2.101).) The practice of counting service of less than four years as a full term is known as "rounding up," and it is central to this dispute.

There have been four elections since 1990 where the voters of San Francisco considered Charter initiatives affecting the composition and election of the board of supervisors, and in none of them was there any hint that term limits would be relaxed. Nevertheless, the San Francisco Superior Court concluded that when an appointed supervisor has served three years of a predecessor's four-year term--two of them after having stood at the polls and been elected in his or her own right--that period of service is not rounded up and does not count as one of the two terms--a conclusion that would allow an appointed supervisor to serve more than the voter-mandated maximum of 10 consecutive years. This conclusion was erroneous because it would eviscerate section 2.101. We hold that when an appointed supervisor has served three years of one term, and then been elected and served four years of another term, the rounding up language of section 2.101 is operative, and prohibits the supervisor being a candidate for another four-year term. Because respondent court ruled that the supervisor could run again, we order issuance of a peremptory writ of mandate upholding the decision of election officials refusing to put the supervisor's name on the ballot.

BACKGROUND

In June 1990, five months before term limits were adopted for state officers (see Legislature v. Eu (1991) 54 Cal.3d 492, addressing Cal. Const., art. IV, § 1.5, added by Prop. 140 adopted at the November 1990 general election), the voters of San Francisco adopted what is now section 2.101. Originally designated section 9.100, it provided in pertinent part:

"Notwithstanding any provisions of this section or any other section of the charter to the contrary, from and after the effective date of this section as amended, no person elected or appointed as a supervisor may serve as such for more than two successive four-year terms. Any person appointed to the office of supervisor to complete in excess of two years of a four-year term shall be deemed, for purposes of this section, to have served one full term upon expiration of that term. No person having served two successive four-year terms may serve as a supervisor, either by election or appointment, until at least four years after the expiration of the second successive term in office. Any supervisor who resigns with less than two full years remaining until the expiration of the term shall be deemed, for the purposes of this section, to have served a full four-year term." It further provided that, "The effective date of this section as amended is July 1, 1990. All supervisors holding office on that date shall be deemed to have served one full four-year term upon the expiration of their current terms of office."

In November 1995, the voters adopted a new Charter. Now considerably shortened and renumbered as section 2.101, the term limit provision read:

"Each member of the Board of Supervisors shall be elected at a general election and shall serve a four-year term commencing on the eighth day of January following election and until a successor qualifies. The respective terms of office of the members of the Board of Supervisors in effect on this date this Charter is adopted shall continue.

"No person elected or appointed as a Supervisor may serve as such for more than two successive four-year terms. Any person appointed to the office of Supervisor to complete in excess of two years of a four-year term shall be deemed, for the purpose of this section, to have served one full term. No person having served two successive four-year terms may serve as a Supervisor, either by election or appointment, until at least four years after the expiration of the second successive term in office. Any Supervisor who resigns with less than two full years remaining until the expiration of the term shall be deemed, for the purposes of this section, to have served a full four-year term."

The voter information pamphlet provided by the City devoted more than 20 pages to summarizing the proposed Charter and presenting pro and con arguments. Nothing in this material suggested that the reduced language made any substantive change to the term limits provision adopted five years earlier. And the rounding up language remained untouched.

In November 1996, in an effort to increase electoral accountability, San Francisco voters approved a new system of electing members of the Board of Supervisors, by district rather than citywide. As part of the transition, the measure provided that half of the Board of Supervisors elected at the next general election would serve two-year terms, while the other half would serve four-year terms. It also showed that attention was still being paid to rounding up: "Those members of the board of supervisors . . . who only serve an initial two year term, shall not be deemed to have served a full term for purposes of the term limit established by Section 2.101." (S.F. Charter, § 13.110(f).)

Until 2002, vacancies on the board of supervisors were filled by the mayor under this provision of the Charter: "If a vacancy shall exist on the Board of Supervisors because of the death, resignation, permanent disability or the inability of a member to otherwise carry out the responsibilities of the office, the Mayor shall appoint a qualified successor. Should more than 29 months remain in the unexpired term, the appointee shall serve until the next general election municipal or statewide election occurring not less than 120 days after the appointment, at which time an election shall be held to fill the unexpired term." (Former § 2.102.)

This appointment power was deemed insufficiently democratic, which led to Proposition C, which came before the voters on November 6, 2001. It passed, and so the mayor's appointment power was curtailed. The voters repealed section 2.102 and replaced it with section 13.101.5. As relevant here, the new provision specified that if the mayor appointed a person to fill a vacancy as supervisor, that person "shall serve until a successor is selected at the next general election occurring not less than 120 days after the vacancy at which time an election shall be held to fill the unexpired term, provided that (1) if an election for the vacated office is scheduled to occur less than one year after the vacancy, the appointee shall serve until a successor is selected at that election or (2) if an election for any seat on the same board as the vacated seat is scheduled to occur less than one year but at least one 120 days after the vacancy, the appointee shall serve until a successor is selected at that election to fill the unexpired term." (§ 13.101.5(c).) Again, nothing was mentioned about changing the essential features of term limits, and rounding up remained in place.

In November 2002, Gavin Newsom, the supervisor for District Two, won election to a four-year term commencing January 8, 2003, and ending on January 8, 2007. In December 2003, Newsom was elected mayor.

On January 26, 2004, having been sworn in as mayor, Newsom appointed Michela Alioto-Pier as his successor as the supervisor for District Two.

On November 2, 2004, pursuant to section 13.101.5, Alioto-Pier was elected to serve the remainder two years of the term to which Newsom had been elected in 2002.

On November 7, 2006, Alioto-Pier was elected to a four-year term as supervisor for District Two. That term was to commence on January 8, 2007, and end on January 8, 2011.

Less than a year into her new term, Alioto-Pier was already eyeing another, and sometime during that year asked the city attorney whether she could run in 2010. In a written opinion dated February 6, 2008, he answered that she could not, squarely because of the rounding up language in section 2.101: "[Y]our appointment and subsequent election to finish the term that expired in January 2007 counts as a full term for purposes of the Charter's term limits provisions. You served nearly three years of a four-year term. The Charter provides that persons 'appointed . . . to complete in excess of two years of a four-year term' will be deemed to have served a full term. This rounding up provision refers to appointees who serve more than two years of the ...


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