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Second CA Att'y (Yale Undergrad, Georgetown Law School Grad) Whose Law Firm Handles Election Law Matters -- Says Measure BBB Would Allow Mayor & Council Three More Terms (12 More Years), Not One More Term As Mayor/City Att'y Contend

Reform Coalition opposed to BBB sought law firm opinion after retired Councilwoman Schipske reached same conclusion counter to City Att'y's view


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(October 31, 2018, 4:33 p.m.) -- Following-up on a story reported Oct. 8 by LBREPORT.com, a second State Bar licensed attorney -- this time a Yale undergraduate, Georgetown law school graduate whose firm handles matters that include election law -- has issued an opinion letter on his law firm's letterhead stating that he believes Measure BBB would let incumbent Mayor Robert Garcia and current two-term Council members serve up to 12 MORE years -- a third, fourth and fifth terms in addition to the two to which they've already been elected -- for a potential total of twenty years, not the one additional term that the Mayor has been saying for months, echoed in an October statement by the City Attorney.

In a letter (full text below) released earlier today (Oct. 31) by the Long Beach Reform Coalition PAC which opposes Measure BBB, attorney Gautam Dutta writes in pertinent part:

You asked our office whether Measure BBB will deliver what its supporters promise: a "lifetime" limit of three terms for the Long Beach Mayor and Councilmembers.

The answer is an emphatic No. In fact, Measure BBB will open the door for political incumbents to serve a "lifetime" total of four or more terms.

State law regarding term limits is simple: a new rule on term limits cannot be retroactively imposed on those currently holding elected office. [cites CA Gov't Code 36502(b) ("Any proposal to limit the number of terms a member of the city council may serve on the city council, or the number of terms an elected mayor may serve, shall apply prospectively only[.]") (italics added).

[Scroll down for further.]

Attorney Dutta reached the same conclusion as former Councilwoman Gerrie Schipske, also a CA attorney, who was part of the legal team that successfully produced a settlement (including LB Water Dept. customer rebates) with LB City Hall in litigation challenging a city utility-related practice.

Attorney Dutta's Oct. 31 letter -- visible in full at this link -- also cites a CA Court of Appeals case, Woo v. Superior Court, which issued an opinion in 2000 that then-L.A. Councilman Mike Woo had a right to serve a total of four terms despite ballot text that appeared to ban him from seeking re-election. Attorney Dutta writes:

Simply put, because the "term limits" clock starts fresh for incumbents, Mr. Woo was eligible to serve two additional terms.

The same logic applies for Measure BBB. Currently, Long Beach's hybrid term-limits law allows the Mayor and Councilmembers to serve two terms in office -- but then requires them to run as write-in candidates if they seek to serve more than two terms...

Much like the LA law in Woo, the express terms of Measure BBB seek to impose a three-term limit not only on newly elected officials, but on incumbents who were recently elected in primary or general elections. Because new term limits cannot be applied retroactively, an incumbent like Mayor Robert Garcia (who was re-elected in last April's primary election) could serve an additional three terms as Mayor.

The Court of Appeal decision (3-0) in which L.A. Council incumbent Michael Woo sued L.A. City Hall -- and prevailed -- can be viewed at this link.

CA Government Code section 36502(b) states:

...(b) Notwithstanding any other provision of law, the city council of a general law or charter city may adopt or the residents of the city may propose, by initiative, a proposal to limit or repeal a limit on the number of terms a member of the city council may serve on the city council, or the number of terms an elected mayor may serve. Any proposal to limit the number of terms a member of the city council may serve on the city council, or the number of terms an elected mayor may serve, shall apply prospectively only and shall not become operative unless it is submitted to the electors of the city at a regularly scheduled election and a majority of the votes cast on the question favor the adoption of the proposal. Notwithstanding the provisions of this subdivision, the provisions of any city charter that, on January 1, 1996, impose limitations on the number of terms a member of the city council may serve on the city council, or the number of terms an elected mayor may serve, shall remain in effect. Unless otherwise prohibited by a city charter, any city charter may be amended pursuant to this section or pursuant to the procedures specified in the charter, to include the limitation authorized in this subdivision.

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Mr. Dutta's law firm provides a summary of his professional background at this link..

On Oct. 6, retired Councilwoman Schipske, an opponent of Measure BBB, published an article on her OpenUpLongBeach website titled, "OpenUpLongBeach Discovers Bombshell About Measure BBB" explicitly raising the issue of Government Code section 36502(b) which requires that any term limits provision may only apply to terms served after the effective date of the measure. Ms. Schipske wrote on Oct. 6: "This means that should Measure BBB pass, this current Mayor and City Council will be allowed to seek 12 more years in office. No wonder they are pushing so hard for its passage!"

LBREPORT.com sought comment from the City Attorney before reporting this legalistic aspect of the story. On October 8, the City Attorney's office issued the following statement, which LBREPORT.com published in full:

Government Code section 36502(b) requires term limits to be prospective. Since 1992, the City of Long Beach has had a two-term limit for City Council and Mayor candidates. If someone has served two full terms subject to that limit, the current Charter section applies. This means that any former or current Mayor or Council member who has served two full terms as a non-write-in candidate would be eligible to run for and be elected to only one additional term if Measure BBB passes.

The current Charter section, does not limit the number of write-in terms. In order to keep the application of Measure BBB prospective, a current or former Council member who has served two full terms and any number of write-in terms would be eligible to run for one additional term.

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Earlier today (Oct. 31), LBREPORT.com reached attorney Dutta by phone and recorded a brief Q & A with him, in which we asked him for his response to a pertinent portion of the City Attorney's statement and also asked about possible legal scenarios if Measure BBB passes. LBREPORT.com will be uploading the audio shortly.

Developing.


Oct. 31, 8:28 p.m. Text of Government Code section added, and link to CA Appeals Court case added.

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