Can a California charter city council appoint a councilmember to a vacancy more than 30 days after the vacancy if its charter sets a 30-day deadline?

Question

Two community organizations applied for leave to sue Michael Danielson in quo warranto to remove him from the Arcadia City Council, on the ground that the Council's appointment of Danielson violated Arcadia Charter provisions governing vacancy appointments.

Conclusion

Granted. A substantial question of law exists as to whether Danielson's appointment was lawful, and the public interest favors judicial resolution.

Official Citation: 105 Ops.Cal.Atty.Gen. 141

Plain-English summary

Arcadia is a charter city governed by a five-member city council. The Arcadia City Charter, art. IV, § 400, requires the City Council to fill a vacancy by majority vote within thirty days. If it does not, the Charter requires the Council to call an election "for the earliest possible date to fill such vacancy."

On November 13, 2021, a councilmember died, creating a vacancy. The Council held special meetings in December 2021 to consider appointees and to consider calling a special election in April 2022. The Council could not agree on either path. The Council met again in February 2022 and on March 29, 2022, considering resolutions to call an election, but did not call one. On March 29, 2022, the Council appointed Michael Danielson to fill the vacancy.

Two community organizations (HQH Chinese American Equalization Association and Arcadia Voters' Rights Group) applied for leave to sue Danielson in quo warranto. They argued the Charter's 30-day deadline closed the appointment door at the December 13, 2021 mark, after which the only lawful path was a Council-called election. Therefore the March 29, 2022 appointment was outside the Council's authority, the relators argued.

The AG declined to resolve the merits but granted leave because there is a substantial question of law about how to read the Charter: does the 30-day rule operate as a hard deadline (after which only an election is permitted), or as a "soft" deadline (after which the Council must call an election OR may still appoint)? Reasonable readings exist on both sides, and that is enough for a quo warranto leave grant.

The opinion also addresses parallel mandamus litigation. The relators had filed a court petition seeking mandamus and injunctive relief on the same theory. The AG found that the parallel proceeding was not an obstacle to granting quo warranto leave, since quo warranto and mandamus address different aspects of officeholding (quo warranto goes to title to office; mandamus to particular acts).

What this means for you

Charter cities with similar vacancy-filling rules

The opinion emphasizes that vacancy-deadline language matters. If your charter sets a 30-day window for appointment with election as the fallback, the safer reading is that missing the deadline closes off the appointment path. Pre-deadline strategies: schedule meetings and votes within the window; if consensus is impossible, call the election before the deadline expires to preserve flexibility.

If you are amending your charter, write the deadline rule with explicit language about what happens when the deadline passes (e.g., "the Council shall thereafter only have authority to call an election" vs. "the Council retains discretion to appoint or call an election after the deadline expires").

Charter city attorneys advising on vacancy filling

Document the Council's deliberations during the deadline period. If the Council cannot reach majority consensus on either an appointment or an election within the deadline, escalate the issue. After the deadline, recommend the election path to avoid quo warranto exposure. If the Council insists on a late appointment, document the legal advice and the Council's rationale.

Candidates appointed to fill a vacancy after a charter deadline

Your seat may be vulnerable to quo warranto challenge. Consult counsel about whether the city's charter language and the timeline of the appointment creates exposure. Public actions taken in your seat during the litigation are generally validated by the de facto officer doctrine, but personal officeholding is at risk.

Voters and good-government advocates

The quo warranto path (with AG leave) is available to private parties as proposed relators. Identify charter language, document the deadline timeline, and consult counsel on the legal theory before filing.

Common questions

What did Arcadia's charter require?
Article IV, § 400 of the Arcadia City Charter: the City Council shall fill a vacancy by majority vote within thirty days; if it does not, the Council shall call an election for the earliest possible date.

Did the Council miss the deadline?
Yes. The vacancy arose November 13, 2021. The Council appointed Michael Danielson on March 29, 2022, more than 4 months later.

Is the 30-day rule a hard deadline?
The opinion treats this as a substantial question of law. Both readings (hard deadline vs. soft deadline) are reasonable. The court will resolve which applies.

Can private parties bring quo warranto?
Yes, as relators with AG leave. Two community organizations brought this application. The AG screens; if granted, they file in superior court in the People's name.

What about the existing mandamus action filed by the same relators?
The AG concluded the parallel mandamus proceeding does not block quo warranto leave. Quo warranto goes to title to office; mandamus to particular acts. The two can run in parallel.

Does Danielson stop serving while the case is pending?
No. Quo warranto challenges do not automatically suspend officeholding. Danielson continues serving until removed by court judgment.

What about Danielson's votes during this period?
The de facto officer doctrine generally validates the acts of officials whose appointments are later determined invalid. So Danielson's votes during the litigation period likely remain valid even if his seat is later held unlawfully filled.

Does this apply to general law cities?
General law cities are governed by Government Code § 36513 and similar statutes, which provide a different vacancy-filling timeline. This opinion is specific to Arcadia's charter language, but the principle (charter deadlines matter) generalizes.

Background and statutory framework

Arcadia City Charter:
- Art. IV, § 400 (vacancy filling: 30-day appointment window or election fallback).

Quo warranto procedure:
- Cal. Code Civ. Proc. § 803.
- AG three-part test: availability, substantial issue, public interest.

Parallel relief:
- Mandamus, injunctive, and declaratory relief actions can run in parallel with quo warranto. The AG's grant of leave is not blocked by such parallel proceedings.

Citations

• Arcadia City Charter, art. IV, § 400
• Cal. Code Civ. Proc. § 803

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/22-603.pdf

Original opinion text

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

:
OPINION
:
:
of
:
:
ROB BONTA
:
Attorney General
:
:
CATHERINE BIDART
:
Deputy Attorney General
:

No. 22-603
August 18, 2022

Proposed relators HQH CHINESE AMERICAN EQUALIZATION
ASSOCIATION and ARCADIA VOTERS’ RIGHTS GROUP (Relators) have applied to
this office for leave to sue proposed defendant MICHAEL DANIELSON (Defendant) in
quo warranto to remove Defendant from his public office on the Arcadia City Council.
Relators assert that the City Council’s appointment of Defendant violated Arcadia City
Charter provisions governing vacancy appointments.
We conclude that a substantial question of law exists as to whether Defendant’s
appointment to the Arcadia City Council was lawful. Further, the public interest will be
served by allowing the proposed quo warranto action to proceed. Consequently, the
application for leave to sue is GRANTED.
BACKGROUND
The City of Arcadia is a charter city governed by a five-member city council. 1 In
the event of a vacancy, the Charter provides that the City Council by majority vote shall

1

Arcadia City Charter, art. IV, § 400.

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fill the vacancy within thirty days, and if it does not, shall call an election “for the earliest
possible date to fill such vacancy.” 2
On November 13, 2021, a vacancy arose when a councilmember passed away.
The Council held special meetings in December to consider potential appointees and to
consider calling a special election in April 2022. At those meetings, a council majority
could not agree on an appointee, nor on a resolution to call an election. On February 7
and March 29, 2022, the Council again considered resolutions on an election, but did not
call one. Instead, on March 29, 2022—more than thirty days after the vacancy
occurred—the Council appointed Defendant to fill the vacancy.
On May 16, 2022, Relators filed a petition in court seeking mandamus, injunctive,
and declaratory relief, seeking to remove Defendant on the ground that his appointment
was unlawful, and to invalidate his vote on redistricting maps. On June 10, 2022, we
received Relators’ application for leave to sue in quo warranto to remove Defendant on
the ground that his appointment was unlawful. For the reasons set forth below, we grant
Relators’ application.
ANALYSIS
Quo warranto is a civil action used to challenge the lawfulness of a public official
holding a given public office. 3 A private party who seeks to pursue such an action must
first obtain the consent of the Attorney General. 4 In deciding whether to grant consent,
we do not attempt to resolve the merits of the controversy. Instead, we grant leave to sue
if we determine that (1) quo warranto is a proper remedy to resolve the issue presented;
(2) the application presents a substantial question of law or fact warranting judicial

We are informed that voters will consider substantive amendments to this provision in
November of this year. But at all times relevant to this application, the Arcadia City
Charter has provided that “[a]ny vacancy on the Council shall be filled by a majority vote
of the remaining Councilmembers within thirty days after the vacancy occurs,” and that
“[i]f the Council fails, for any reason, to fill such vacancy within said thirty-day period, it
shall forthwith call an election for the earliest possible date to fill such vacancy.” (Id.,
§ 403(c).)

2

See Code Civ. Proc., § 803; Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th
1221, 1225; People ex rel. Pennington v. City of Richmond (1956) 141 Cal.App.2d 107,
117.

3

International Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687,
693-698.

4

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resolution; and (3) granting the application would serve the overall public interest. 5 Here,
these requirements are met.
1. Availability of Quo Warranto
Quo warranto is an available and appropriate remedy here. It is the proper action
to determine whether, as a result of an invalid or improper appointment, a public official
unlawfully holds a public office.6 Relators’ argument, if accepted, would mean that
Defendant is unlawfully holding public office on the City Council due to a defective
appointment.
2. Substantial Issue Regarding the Lawfulness of the Appointment
The parties dispute whether the City Council’s appointment of Defendant was
lawful. Relators contend that his appointment, made more than thirty days after the
vacancy arose, was unlawful based on the plain meaning of the Charter’s provisions. 7
The Charter states that “[a]ny vacancy on the Council shall be filled” by majority vote of
the Council “within thirty days after the vacancy occurs.” 8 And if the Council does not
make an appointment within that time frame “for any reason,” the Council “shall
forthwith call an election for the earliest possible date.” 9 The California Supreme Court
has explained that, while it is not dispositive, “[o]rdinarily, the term ‘shall’ is interpreted
as mandatory and not permissive.” 10
Defendant contends that the thirty-day period is not mandatory, but directory,
meaning that the Council retained its appointment authority after the period expired. For
support, he points to a California Supreme Court case pertaining to a board of
supervisors’ appointment of a cemetery superintendent. 11 The governing ordinance at
issue in that case provided that the board “shall” annually appoint someone in October. 12
Unlike here, the provision was silent on what would happen if no appointment were made
5

Rando v. Harris (2014) 228 Cal.App.4th 868, 879; 96 Ops.Cal.Atty.Gen. 36, 40 (2013).

105 Ops.Cal.Atty.Gen. 65, 67 (2022); see Code Civ. Proc., § 803; Nicolopulos v. City of
Lawndale, supra, 91 Cal.App.4th at p. 1225; 103 Ops.Cal.Atty.Gen. 33, 35-36 (2020).

6

See Citizens Planning Assn. v. City of Santa Barbara (2011) 191 Cal.App.4th 1541,
1545 (plain-meaning rule used to construe statutes also applies to charters).

7

8

Arcadia City Charter, art. IV, § 403(c).

9

Ibid.

10

People v. Standish (2006) 38 Cal.4th 858, 869.

11

See People ex rel. Jacobs v. Murray (1860) 15 Cal. 221, 222.

12

Ibid.
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within the given time frame. 13 The Court found that the board’s power to appoint did not
expire after October, stating that the general rule is that a given time for a public body to
act in exercising a public function is directory, not mandatory. 14
In a subsequent case, however, the California Supreme Court elaborated on the
general rule, explaining that a prescribed time to act may be mandatory, not directory,
when time is of the essence. 15 Here, the Arcadia Charter directs that if the City Council
does not make an appointment within thirty days, it “shall forthwith call an election for
the earliest possible date.” 16 This language suggests that time is of the essence in this
circumstance. And the Charter says nothing about extending the Council’s authority to
appoint beyond the initial thirty-day period, further supporting the view that the Council
had a mandatory obligation to call an election after the passage of thirty days without an
appointment.
For these reasons, while we acknowledge Defendant’s arguments to the contrary,
we find that there is at the very least a substantial issue of law as to whether Defendant’s
appointment was lawful.
3. Public Interest in Favor of Authorizing Suit
Finally, we believe that the public interest is served by authorizing this quo
warranto action. Generally, the existence of a substantial question of law or fact presents
a sufficient “public purpose” to permit an action in quo warranto, absent countervailing
circumstances. 17 Defendant contends that there are numerous countervailing
circumstances here but, as discussed below, we are not persuaded.
To begin, Defendant asserts that this application will likely soon become moot
because his term expires shortly after the November 8, 2022, general election. 18 But it is
conceivable that a court could resolve the matter before then, especially since there are no
disputed facts and Relators have made similar arguments in their related case filed in

13

Ibid.

14

Id., at p. 223.

15

Tuohy v. Chase (1866) 30 Cal. 524, 526.

16

Arcadia City Charter, art. IV, § 403(c).

17

105 Ops.Cal.Atty.Gen. 69, 74 (2022); see 86 Ops.Cal.Atty.Gen. 82, 85 (2003).

See Arcadia City Charter, art. IV, § 403(c) (“A person appointed by the Council to fill
a vacancy shall hold office until the next general municipal election and until his
successor qualifies”).
18

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May. In any event, we do not normally reject a quo warranto application based solely on
timing considerations. 19
Next, Defendant contends that his removal would be futile because the Council
would likely reappoint him, but the Government Code expressly provides that “no person
elected or appointed to the governing body of any city, . . . having an elected governing
body, shall be appointed to fill any vacancy on that governing body during the term for
which he or she was elected or appointed.” 20
Further, we do not agree that Relators were unreasonably dilatory in bringing this
quo warranto application. Relators acted reasonably timely in filing their application
roughly two-and-a-half months after the Council’s decision to appoint Defendant. 21 And
if Defendant were ultimately removed as a result of the proposed quo warranto action, the
Council could fill the vacancy by appointment and avoid the hardships said to arise from
a vacancy. 22
We are also unmoved by Defendant’s suggestions that this application is
motivated by an improper purpose or brought by inappropriate relators, some of whom
might not reside in Arcadia. As stated in prior opinions, “[w]e normally do not attempt to
assess the motivation of individual relators.” 23 Further, neither the Code of Civil
Procedure nor our quo warranto regulations require a relator to be a resident of the
particular jurisdiction, and we do not otherwise find reason to question Relators’ interest
in this action. 24 Relator Arcadia Voters’ Rights Group is indisputably based in Arcadia,

19

97 Ops.Cal.Atty.Gen. 12, 19 (2014).

See Gov. Code, § 1752, subd. (a); see also 105 Ops.Cal.Atty.Gen., supra, at p. 67
(finding a substantial legal issue as to whether the appointment at issue was invalid under
this Government Code section).
20

See People ex rel. Black v. Bailey (1916) 30 Cal.App. 581, 587 (rejecting laches
argument where relator brought quo warranto within 90 days).
21

See Arcadia City Charter, art. IV, § 403, subd. (a) (Council vacancy exists “if a
Councilmember resigns, is legally removed other than by recall, dies, or forfeits his
office”); Gov. Code, § 1770, subd. (j) (vacancy arises upon “[t]he decision of a
competent tribunal declaring void his or her election or appointment”).
22

75 Ops.Cal.Atty.Gen. 112, 116 (1992); see also 95 Ops.Cal.Atty.Gen. 67, 75, fn. 39
(2012).
23

See Code Civ. Proc., §§ 803-811 (provisions on quo warranto); Cal. Code Regs.,
tit. 11, §§ 1-11 (regulations on quo warranto).
24

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and members of Relator HQH reside in Arcadia even though the organization is
registered elsewhere.
Lastly, we reject Defendant’s contention that there is minimal public interest in
interpreting the charter provision at issue here because that provision is subject to
revision and has no application outside the City of Arcadia. First, the susceptibility of a
law to change does not diminish the value of ensuring its correct interpretation and
application. Second, a city charter provision, by its very nature, applies only within the
city. Such a provision cannot evade judicial review simply because it does not apply
more widely.
In sum, none of Defendant’s arguments persuades us that judicial resolution of this
matter would be against the public interest. Instead, as we recently stated in another
matter, “the validity of the appointment process employed here is a question of public
importance that would benefit from judicial review.” 25
For the above reasons, the application for leave to sue in quo warranto is
GRANTED.

105 Ops.Cal.Atty.Gen., supra, at p. 68 (granting leave to sue to challenge appointment
to Orange County Board of Education on ground that appointment was unlawful).
25

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