Can Shakir Khan, the former Lodi City Councilmember, sue to challenge his replacement Ramon Yepez and reclaim his seat through a quo warranto action?

Question

Should the Attorney General grant Shakir Khan leave to sue Ramon Yepez in quo warranto to remove Yepez from his seat on the Lodi City Council, on the theory that the Council unlawfully declared Khan's former seat vacant and unlawfully appointed Yepez to fill it?

Conclusion

Yes. Substantial issues of fact and law exist as to whether the Council lawfully declared the seat vacant and lawfully appointed Yepez. The public interest is served by letting the proposed quo warranto action proceed. The application for leave to sue is GRANTED.

Official Citation: 106 Ops.Cal.Atty.Gen. 97

Plain-English summary

In November 2020, Shakir Khan was elected to the Lodi City Council. On February 16, 2023, local authorities arrested him on election-fraud charges and took him to the San Joaquin County Jail. Around 4 p.m. that afternoon, the Mayor of Lodi went to the jail and met with Khan in an interrogation room. According to the Council, Khan resigned during that jailhouse meeting. According to Khan, he never resigned, and even if he had, he withdrew the resignation immediately afterward.

The Council moved fast. On February 28, it declared the seat vacant based on Khan's purported resignation, and later appointed Ramon Yepez to fill it. Khan tried to stop the appointment in federal court via a temporary restraining order. The federal court denied the TRO and pointed Khan toward quo warranto as the right procedural vehicle.

Khan then filed an application with the AG for leave to sue Yepez in quo warranto. Yepez, the City, and the Council jointly opposed.

The AG's role on a leave-to-sue application is not to decide the merits. The AG asks two questions: (1) does the proposed action present a substantial issue of fact or law, and (2) is the public interest served by allowing the suit to proceed? On both questions the AG sided with Khan. There are real factual questions about whether Khan resigned at the jailhouse meeting, whether any resignation was valid given the circumstances of his custody, whether he timely withdrew it, and whether the Council's vacancy declaration complied with Government Code §§ 1750 and 1770. The public interest in correctly seating an elected city councilmember warranted letting the action proceed in court.

The opinion does not decide whether Khan won; it just opens the door to the lawsuit.

What this means for you

If you are a city councilmember or city attorney handling a vacancy

A vacancy declaration based on a contested resignation is high risk. Get the resignation in clear writing, signed in non-coercive circumstances, and confirm there is no withdrawal before declaring the seat vacant under § 1770. If those steps were skipped, the council's appointment of a replacement can be unwound through quo warranto, with the AG willing to grant leave even when there is a parallel federal lawsuit.

If you are a former officeholder claiming you never resigned

Quo warranto is the right tool for ousting a sitting officeholder you say is in your seat. You file the application with the AG; the AG decides whether to grant leave; if granted, you bring the action in superior court in the AG's name on relation of you. Federal-court TROs to stop a council appointment are typically unavailable, but the federal court's denial does not foreclose state-court quo warranto.

If you are a journalist covering local government

This is a procedural posture story, not a merits ruling. Khan won the right to sue, not the seat. The AG explicitly noted she was not deciding whether the resignation actually happened or was effective.

Common questions

Q: What is "quo warranto"?

Latin for "by what authority." It is a civil action under Code of Civil Procedure § 803 to challenge whether someone holds public office lawfully. Only the AG can bring it directly, but a private party can apply to the AG for leave to bring it in the AG's name. If granted, the private party (called a "relator") litigates the case.

Q: What test does the AG use on a leave-to-sue application?

Two prongs: (1) does the proposed action present a substantial question of fact or law, and (2) does the public interest favor letting it proceed in court. The AG does not decide the merits at the leave stage. A grant is procedural permission; the actual case is decided by the superior court.

Q: Why couldn't the federal court resolve this?

The federal TRO denial reflected that quo warranto is the proper state-law mechanism to challenge an incumbent's right to public office. Federal courts often defer to that state procedure, and the federal court here pointed Khan toward it.

Q: Does this opinion get Khan back his seat?

No. It only authorizes the lawsuit. The superior court will hear the merits: whether Khan resigned, whether any resignation was valid in the circumstances of his arrest and custody, whether he timely withdrew, and whether the Council's vacancy declaration complied with state law.

Q: What if Khan is convicted of election fraud while the quo warranto case is pending?

A subsequent felony conviction can itself trigger a vacancy under different provisions of § 1770, independent of the resignation question. That could moot the quo warranto action even if Khan would otherwise prevail.

Background and statutory framework

Cal. Code Civ. Proc. § 803. Authorizes quo warranto: 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."

The two-prong AG leave-to-sue test. The AG considers (1) whether substantial questions of fact or law are presented and (2) whether the public interest favors letting the suit proceed. Settled cases include Rando v. Harris (2014) 228 Cal.App.4th 868 and People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804.

Cal. Gov. Code §§ 1750, 1770. Govern the procedure for resignation from public office and the events that create a vacancy, including resignation. The validity and timing of a resignation under these provisions is the merits question the superior court will decide.

Citations

• Cal. Code Civ. Proc. § 803 (quo warranto)
• Cal. Gov. Code §§ 1750, 1770 (resignation, vacancy)
• Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221
• People ex rel. Pennington v. City of Richmond (1956) 141 Cal.App.2d 107
• Rando v. Harris (2014) 228 Cal.App.4th 868
• People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/23-402.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. 23-402
November 30, 2023

SHAKIR KHAN has applied to this office for leave to sue RAMON YEPEZ in quo warranto to remove Yepez from his seat on the Lodi City Council. Khan, the former holder of that seat, alleges that the City Council unlawfully determined that Khan's seat was vacant and therefore unlawfully appointed Yepez to fill it.

We conclude that there are substantial issues of fact and law as to whether the City Council lawfully determined Khan's former seat was vacant and (as a result) whether the Council lawfully appointed Yepez to fill it. Consequently, and because the public interest will be served by allowing the proposed quo warranto action to proceed, we GRANT the application for leave to sue.

INTRODUCTION

Shakir Khan was elected to the Lodi City Council in 2020 and served as a councilmember until the City Council, based on Khan's purported resignation, determined his seat vacant on February 28, 2023.

The events leading to Khan's purported resignation began on the morning of February 16, 2023, when local authorities arrested him on election fraud charges and then took him to the San Joaquin County Jail, where he was held in custody. Around 4 p.m. that afternoon, the Mayor of Lodi went to the jail and met with Khan in an interrogation room. After Khan purportedly resigned at that meeting, the City Council declared Khan's seat to be vacant, and subsequently appointed Yepez to fill it. Khan maintains that he did not agree to resign during that meeting and claims that, even if he had, he timely withdrew any such resignation and thus no vacancy arose.

Khan's attorney sought a temporary restraining order in federal court, seeking to prevent the Council from filling Khan's seat. The court denied the order, and in doing so referred to the availability of a quo warranto lawsuit to challenge the Council's actions. Khan then filed the quo warranto application before us. Yepez, the City of Lodi, and the Lodi City Council filed a joint opposition. For simplicity and brevity, and because these parties' interests and positions are aligned, we attribute the joint opposition's arguments to the City.

ANALYSIS

Quo warranto is a civil action used, among other purposes, to challenge an incumbent public official's right or eligibility to hold a given public office. Code of Civil Procedure section 803 authorizes this form of action, stating that it "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 . . . within this state."

When a party seeks to pursue a quo warranto action, it must first obtain the Attorney General's consent to do so. In determining whether to grant consent, we do not attempt to resolve the merits of the controversy. Rather, we consider (1) whether quo warranto presents a substantial issue of fact or law warranting judicial resolution, and (2) whether the public interest is served by allowing the proceeding to be filed.

Full opinion text continues in the linked PDF.