Can the City of Bell Gardens file a quo warranto lawsuit to remove a city council member who missed every regular meeting for 60 straight days?

Plain-English summary

Bell Gardens, a general law city in southeast Los Angeles County, asked the AG for permission to sue council member Jennifer Rodriguez to remove her from office. The legal vehicle is quo warranto, an old form of action used to challenge whether someone is unlawfully holding a public office. Under Code of Civil Procedure section 803, a private party (including a public agency) cannot file quo warranto on its own; it has to ask the AG for permission first.

The City's theory was straightforward. Government Code section 36513(a) declares: "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." The City pointed to a 60-day window between July 25, 2016 (Rodriguez's last attended meeting) and September 23, 2016. During that window, Bell Gardens held three regular council meetings (Aug 8, Aug 22, Sept 12), and Rodriguez was absent from all three.

Rodriguez did not deny the absences. She argued that her doctor's note restricting her activity through August 9, 2016 excused them. But she did not explicitly request, and did not receive, permission from the council to be absent from any of the three meetings. The dispute boils down to what "permission" means in section 36513: does a doctor's note count? Must the council formally vote to excuse the absence? When does an excuse have to be presented? Section 36513, the Bell Gardens municipal code, and the case law are all silent.

The AG applied the standard quo warranto leave standard: do the application's allegations present substantial questions of law and fact, and would judicial resolution serve the public interest? The AG concluded yes on both counts. The "permission" question is genuinely unsettled, and Bell Gardens and its residents have a real interest in knowing whether Rodriguez had vacated her seat by operation of law. Leave to sue was granted.

The AG also took the opportunity to note that city councils have concurrent jurisdiction with quo warranto over qualifications questions: the council itself could have judged whether Rodriguez was disqualified under its powers in Government Code sections 36512 (vacancy filling) and 36812 (judging member qualifications). The council instead chose to route the question through the courts via quo warranto, which the AG observed it was authorized to do.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The quo warranto procedure under Code of Civil Procedure section 803 has been stable for many decades, and Government Code section 36513 has not been substantially altered. But anyone applying this opinion to a current dispute should still verify current statute, current AG quo warranto guidelines, and any later opinions or appellate decisions on what "permission" means under section 36513. The underlying facts of the Rodriguez case are also history at this point: the AG did not adjudicate the merits, only the leave question.

Common questions

Q: What is quo warranto?
A: It is an old common-law writ, now codified in California at Code of Civil Procedure section 803, used to challenge whether someone is unlawfully holding a public office or franchise. The Latin name means "by what authority." Modern uses include challenges to elections, residency disputes, term-limit violations, conflict-of-interest disqualifications, and (as here) statutory forfeiture for absence.

Q: Why does the AG act as gatekeeper?
A: Because quo warranto is filed in the name of "the people of this state" and effectively asks a court to remove a public officer. Section 803 lets the AG file on the AG's own information, or on a private party's complaint with AG permission. The AG screens to make sure the filing is in the public interest and not, for instance, a politically motivated nuisance suit.

Q: What is the AG looking for in deciding whether to grant leave?
A: Two things: (1) substantial questions of law or fact warranting judicial resolution, and (2) public interest in letting the suit go forward. The AG does not decide the merits at this stage. The AG also looks at countervailing factors like pending litigation of the same issues or the shortness of remaining time in the term.

Q: Could the city council just have removed Rodriguez itself?
A: Possibly. Government Code section 36812 says a council "shall judge the qualifications of its members," and section 36512 governs vacancy filling. The AG noted that a city council and the courts sitting in quo warranto have concurrent jurisdiction over councilmember qualifications questions. The council can decide directly, or it can route the question to court via quo warranto. Bell Gardens chose the latter.

Q: What does "absent without permission" mean under Government Code section 36513?
A: That is exactly the unsettled question the AG identified. The statute does not define "permission." The City argued Rodriguez never requested permission for the August 8, August 22, or September 12 meetings, and the council never granted any. Rodriguez argued her doctor's note operated as an excuse. Whether a doctor's note suffices, whether the council must formally vote to excuse, and when the excuse must be offered are all open questions for the trial court.

Q: Does the 60 days have to be 60 consecutive calendar days, or 60 days containing meetings?
A: Section 36513 says "60 days consecutively from the last regular meeting he or she attended." The AG framed the period as the calendar period from July 26 to September 23, 2016 (the 60 days following the July 25 meeting Rodriguez attended). The statute requires absence from all regular council meetings during that 60-day window.

Q: What if a council member was absent because of a true medical emergency?
A: That is the kind of fact-specific question the AG noted was for judicial resolution. As a practical matter, a council member who anticipates medical absences typically asks the council to formally excuse them in advance, which removes any ambiguity about "permission." A blanket doctor's note covering only part of the relevant period (as in Rodriguez's case) raises a harder question.

Q: Where can I find more AG quo warranto opinions?
A: The AG publishes quo warranto opinions in the bound Opinions of the Attorney General volumes (this one at 100 Ops.Cal.Atty.Gen. 26). The AG's Quo Warranto Guidelines explain the application process, the standard, and the documents the AG expects.

Background and statutory framework

The quo warranto writ. Code of Civil Procedure section 803 codifies California's quo warranto procedure: "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 "complaint of a private party" language has been read to include public agencies acting as relators. The City of Bell Gardens fit that role here. AG practice routes such complaints through a leave application: the proposed relator submits the complaint, the AG evaluates the application, and the AG either grants leave (which permits filing in superior court in the name of the people) or denies it.

The leave standard is described in Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, and in many AG opinions: substantial questions of law and fact, and public interest. The standard does not require the AG to predict who will win, only to confirm that the dispute is real and the suit serves the public.

The councilmember-vacancy statute. Government Code section 36513(a) is the substantive law: "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." The companion provision, section 36512, governs how vacancies are filled.

Concurrent jurisdiction with the council. A general law city's council also has its own authority over member qualifications. Government Code section 36812 provides that the council "shall judge the qualifications of its members." Earlier AG opinions (41 Ops.Cal.Atty.Gen. 98, 100 (1963); 76 Ops.Cal.Atty.Gen. 157, 162-163 (1993)) and case law (McGregor v. Board of Trustees of the Town of Burlingame (1911) 159 Cal. 441, 446-447; Klose v. Superior Court (1950) 96 Cal.App.2d 913, 921-922) establish that this council power is "not exclusive": quo warranto is also available. The council can pick which path to use.

The unresolved "permission" question. The substantive merits question (whether Rodriguez's doctor's note operated as "permission" within the meaning of section 36513) is the kind of statutory-interpretation issue the AG explicitly punted to the trial court. The questions the AG flagged were: can a doctor's note excuse a council member's absence? When must the excuse be proffered? Does a city council have discretion to excuse a medical absence, or any absence? The opinion does not answer these.

Citations and references

Statutes:

• Code of Civil Procedure section 803 (quo warranto)
• Government Code section 36513, subdivision (a) (60-day absence vacates councilmember office)
• Government Code section 36512 (filling council vacancies)
• Government Code section 36812 (council judges member qualifications)

Cases:

• Nicolopulos v. City of Lawndale, 91 Cal.App.4th 1221 (2001) (quo warranto requires AG leave; standard for evaluating leave application)
• McGregor v. Board of Trustees of the Town of Burlingame, 159 Cal. 441 (1911) (council qualification authority is not exclusive)
• Klose v. Superior Court, 96 Cal.App.2d 913 (1950) (same)
• City of Orange v. San Diego County Employees Retirement Assn., 103 Cal.App.4th 45 (2002) (general law cities derive powers from general statutes)

Earlier AG opinions cited:

• 41 Ops.Cal.Atty.Gen. 98 (1963) (council and quo warranto concurrent jurisdiction)
• 76 Ops.Cal.Atty.Gen. 157 (1993) (quo warranto procedure; public agencies as relators)
• 95 Ops.Cal.Atty.Gen. 50 (2012) (leave standard: substantial questions, public interest)
• 95 Ops.Cal.Atty.Gen. 77 (2012) (judicial resolution as sufficient public purpose)
• 97 Ops.Cal.Atty.Gen. 1 (2014) (public agencies may be relators)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/17-305_1.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General

OPINION
of
XAVIER BECERRA
Attorney General
ANYA M. BINSACCA
Deputy Attorney General

No. 17-305
November 2, 2017

Proposed relator the CITY OF BELL GARDENS has requested leave to sue proposed defendant JENNIFER RODRIGUEZ in quo warranto to oust her from the public office of city council member on the ground that she was absent from all regular city council meetings without permission for 60 days, thereby forfeiting her office under Government Code section 36513.

CONCLUSION

There are substantial questions of law and fact as to whether Rodriguez was absent from all regular city council meetings for 60 days, thereby forfeiting her office under Government Code section 36513. As a result, allowing the action to proceed would serve the public interest. Therefore, leave to sue in quo warranto is GRANTED.

ANALYSIS

Standard for Approving a Quo Warranto Application

Quo warranto is the form of action used to challenge whether a person is unlawfully holding a public office. The process is authorized by Code of Civil Procedure section 803, which 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."

Where the quo warranto action is initiated "upon a complaint of a private party," the Attorney General acts as a gatekeeper; the party must obtain the Attorney General's permission before filing an action in superior court. Even though section 803 references the "complaint of a private party," public officers and public agencies, such as the City of Bell Gardens in this case, may also pursue a quo warranto application as a relator. With respect to cities specifically, we note that city councils and the courts sitting in quo warranto have concurrent jurisdiction over questions of councilmember qualifications. We have previously observed that "[t]he primary authority for determining whether a vacancy exists in a councilman's office is the city council itself under its power to fill a vacancy in a council seat, Gov. Code § 36512, and to 'judge the qualifications of its members,' Gov. Code § 36812." However, as we further observed, "[t]his power of the city council is not exclusive." Having determined there may be a substantial question whether one of its members is disqualified from further service on the council due to excessive absences, the city council here has elected to pursue a quo warranto adjudication in the first instance, as it is authorized to do under Code of Civil Procedure section 803.

In evaluating whether to grant leave to sue, we do not endeavor to resolve the merits of the controversy, but rather "decide whether the application presents substantial issues of fact or law that warrant judicial resolution, and whether granting the application will serve the public interest."

The Application Presents Substantial Questions of Law and Fact

The City of Bell Gardens is a general law city, and thus derives its powers from the general statutes enacted by the Legislature. Government Code section 36513 provides that, "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." The City alleges that Rodriguez was absent for a 60-day period, thereby vacating her seat.

The City's municipal code sets the regular meetings of the city council for the second and fourth Mondays of each month. The regular meetings during the 60-day period following the council's July 25, 2016 meeting (i.e., July 26 through September 23, 2016) took place on August 8, August 22, and September 12, 2016. The city council minutes from each of those meetings reflect that Rodriguez was absent. Council minutes also reflect that Rodriguez was absent from the two regular council meetings that occurred during the 60-day period between November 22, 2016 and January 21, 2017.

Rodriguez does not dispute that she was absent from those meetings. Instead, she maintains that her absences were excused by the fact that her doctor had restricted her activity during at least part of that time. Rodriguez provides a doctor's note saying that she was seen on July 25, 2016, that her activity is restricted, and that she may return to work or school on August 9, 2016. The City maintains that Rodriguez never requested permission to be absent from the August 8, August 22, or September 12, 2016 meetings.

The meaning of "permission" to be absent from council meetings is not elucidated by Government Code section 36513, the City's municipal code, or the case law.

We think the scenario here raises substantial questions of law and fact as to whether Rodriguez vacated her council seat under Government Code section 36513. For example, can a doctor's note excuse a city council member's absence from a meeting? If so, when must that excuse be proffered? Does a city council have discretion to excuse a medical absence, or any absence? Questions such as these, as well as any factual disputes, may be addressed and resolved in a judicial proceeding.

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 the granting of leave to sue in quo warranto, absent countervailing circumstances such as pending litigation of the issues or shortness of the time remaining in the term of office." We are not aware of any reason here to depart from our general rule. Both the City of Bell Gardens and the public have an interest in a judicial determination of whether council member Rodriguez vacated her city council seat by operation of law due to absence over a 60-day period.

Accordingly, the application for leave to sue in quo warranto is GRANTED.