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By Brian Hews
Five weeks ago Hews Media Group-Community News published a report pertaining to Article IV of the Cerritos City Charter, which was re-written after voters overwhelmingly approved Proposition H in 1988 that mandated term limits.
Barrows supporters, who cited then Attorney General Bill Lockyer’s 2004 opinion, slammed the report.
Conversely, Cerritos voting residents who are tired of seeing the same city council members cycle through the City every two years, praised the report.
The City, through its attorney, sent out a press release to all media outlets contradicting the report citing the 2004 AG’s opinion, even taking the highly unusual and questionable step of posting the letter on the City’s website under “Top Stories.”
The City and City Attorney posted the letter on the City’s website and also sent the letter, through the Communications Department, to all media outlets.
The reaction by Barrows supporters and the City was vitriolic.. and it was premature.
HMG-CN traveled to the Los Angeles County court archives and obtained two judicial decisions from 1988 and 1989 that invalidate the AG’s opinion.
Judge J. Kimbal Walker stated in his 1988 decision, case number SEC 66417, “When the (1988) election is had, all the council members will be ineligible to run or serve a third consecutive term.”
Judge Jerold Krieger stated in his 1989 decision, case number SEC 77109, “it is adjudged and decreed that any member of the City Council of the city of Cerritos who has served more than two consecutive terms is prohibited from seeking reelection.”
Ruling by Judge Krieger in 1989, “consecutive two-terms… is prohibited from seeking reelection.” The ruling was clear and Attorney General Lockyer was in error rendering an opinion in 2004 given this 1989 ruling. The City spent at least $100,000 defending the City in the lawsuit, fighting an initiative that was passed by over 65% of Cerritos residents.
Both rulings should effectively ban Barrows from running for office in April.
The judicial rulings also call into question the City Attorney’s own motives and actions in not following the rulings since 1989, and not informing City personnel, including the Cerritos City Clerk’s office of the court cases, while relying on an AG’s opinion written fifteen years later.
Attorney General Lockyer’s 2004 opinion on Article IV, the opinion should have never been issued as there was a “controlling authority,” the 1989 Krieger ruling. Click on image to read opinion.
Judges rulings are law; AG opinions, according to the AG’s own website, are advisory.
Worse, the ‘88/’89 court decisions were inexplicably left out of the AG’s 2004 decision.
And they were left out of Cerritos City Attorney Mark Steres’ press release.
HMG-CN talked to a legal advisor who stated, “Steres should have, at the very least, considered the content of the 1988-89 judicial rulings, along with Lockyer’s opinion, before writing the press release.”
The 1989 court case, filed Nov. 2, saw Hydelita Soto, representing herself, go up against the powerful City of Cerritos’ law firm of Brown, Winfield, and Conzoneri (Brown), who was paid by the city of Cerritos to defeat Prop H.
It was a classic David versus Goliath scene, but Soto still won the case.
From the size of the briefs, it looked as if Cerritos spent well over $100,000 fighting Prop H, a proposition that over 65% of Cerritos residents voted for.
Soto, after winning, received $1,364 in fees.
The case centered around the now infamous Article IV which stated “any Council member who has served two consecutive four year terms shall not be eligible for a period of two years to seek reelection.”
Barrows served two consecutive Cerritos council terms, starting in 2007 and leaving office in March 2015.
In the report, HMG-CN wrote that Barrows could not “seek” office until March 2017-two years after he left office-thereby disqualifying him from the council race after Barrows filed in late January 2017.
Five days later, Cerritos’s City Attorney Mark Steres sent out the release citing the 2004 opinion written by then California AG Bill Lockyer.
In his 2004 opinion, which was not a judicial court ruling, Lockyer ruled that Paul Bowlen and John Crowley could retain their council seats and that Article IV did not ban candidates from running for office in two years after serving two consecutive four-year terms.
Ironically, the ruling was in complete conflict with the vocal and extremely well funded No on Prop. H campaign, who’s members obviously thought the proposition was a complete ban on running for council after serving tow consecutive terms.
The No on Prop H campaign spent more than $50,000 to defeat the initiative, garnering most of the money from questionable developers who had an interest in keeping certain City Council members in their seats.
The No on H campaign materials boldly and succinctly stated, “if this amendment passes, any city councilmember in their second term cannot be a candidate for an additional term.”
Days after the Lockyer’s opinion, Metropolitan News-Enterprise, a well respected legal newspaper based in Los Angeles, wrote an article stating that, “Lockyer has opined that Prop. H refers to the date of the next general election, not the date that a person becomes a candidate.”
Met News stated that the opinion interpreting a city charter by Lockyer was “highly unusual” and something that Lockyer “declined to do in at least two cases” earlier in the year.
Met News cited Lockyer’s decision to refuse to rule on whether Los Angeles City Attorney Rocky Delgadillo held his office in accordance with the Los Angeles’ City Charter.
Several individuals, including then-Public Defender Michael Judge, had claimed that Delgadillo had not been qualified to practice law prior to taking office because he was an inactive State Bar member for a period of time.
Lockyer cited the “usual practice of not interpreting local charters and ordinances in determining Delgadillo’s case.”
Later, Lockyer denied to rule on a case brought by citizens of Inyo County who contended that having a single individual hold two local positions violated a local initiative.
And recently, HMG-CN sent a letter asking the current AG to intervene in Cerritos in relation to Article IV.
The AG’s office wrote, “It is our general policy that local governments are primarily responsible for citizen complaints, and that appropriate local resources should be utilized for the resolution of such complaints.”
It is unknown why Lockyer ruled on the Cerritos case in 2004, when just months before, Lockyer refused to rule on two very similar cases.
His opinion becomes even more questionable given that Lockyer failed to cite the two judicial decisions in 1988 and 1989.
The exclusion calls into serious question the accuracy of the AG’s opinion.
In the 1989 Soto v Brown case, Brown spared no expense in litigating with Soto, citing 21 precedent cases, four articles from the California Constitution, four government codes, and one evidence code.
The information from the case was readily available, yet Lockyer inexplicably cited only one case from Brown list in his 2004 opinion.
The 1989 Case-David versus Goliath-
The case began in Nov 1989 with Soto, arguing in her initial brief that Prop H. should be read literally and enforced.
“Defendant, city of Cerritos, acting through city attorney Brown, has expressed its intent not to comply with the charter amendment (Prop. H), therefore a judicial declaration is necessary.”
Brown subsequently filed what is called a demur 28 days later asserting the lawsuit could be quickly resolved because Soto did not present a valid case. Brown cited the 21 cases, and several articles under the constitution.
On December 11 Soto filed an Amicus Curiae . An Amici is someone who is not a party to a case and is not solicited by the party but who assists the court by offering information on the case. The decision whether to admit the information lies at the discretion of the court.
The information was later allowed by Judge Krieger.
The two people who offered advice were David Diaz of the Los Angeles City Two-Term Limit Coalition and current L.A. City Councilman Curren Price Jr. who at the time was with Inglewood Citizens for Reasonable Reform.
Diaz was attempting to amend the Los Angeles City Charter to two terms in office; Price Jr. was doing the same thing to the Inglewood City Charter.
Messrs. Diaz and Price Jr. stated, “The attack by the city of Cerritos on the initiative measure passed by the people of Cerritos challenges the power of the people to limit terms of office of their elected officials. The two initiatives presently circulating in Los Angeles and Inglewood maybe directly threatened by the first decision of the trial court in this action.”
“An adverse trial court decision could also threaten initiatives currently being circulated in San Jose as well as current term limitation provisions in place in fifteen charter cities in California. The decision could have a significant effect on term limitations provisions already in place.”
The two slammed Brown for their obvious conflict of interest position, “the failure of the city attorney to defend the citizens gives the appearance of a conflict of interest by supporting the position of the incumbents on the City Council who pay Brown’s bills.”
“They are using the resources of the city to attack the provisions that affect their tenure in office. That raises the issue of the credibility of the city’s position.”
“In addition, the conflict exists in the city attorney’s obligation as city attorney to be a public officer. His duties include vigorous enforcement in defense of the laws passed by the people yet he is defending the legislative body that is challenging the charter amendment.”
The two finished stating, “The charter provision was passed by initiative. Any ambiguity should be interpreted in favor of the people.”
Brown argued that local governments cannot limit the tenure of local elected officials and that State law preempted Prop. H.
Charter counties and general law cities are granted specific power by the state when not in conflict with state laws.
Charter cities, such as Cerritos, are granted plenary (unlimited) powers except as to those that have been preempted by the State.
Krieger ruled that the court must “ look to the test for preemption set forth (in a case called) in re Hubbard.”
“Is there an adverse effect of the local ordinance (Prop H.) on transient citizens of the State that outweighs the possible benefit to the city?”
Krieger ruled that Prop. H did not have an effect on the transient citizen.
“By definition, the person who would become ineligible to run for office has been in the city for at least eight years.”
“The person who votes must have been registered to vote and residents of the city for a period of 30 days.”
Krieger stated that the court finds there has been no preemption meaning Prop H. was valid under the Cerritos City Charter.
“The court finds that there is no ambiguity as to the applicability of the limit in the number of terms to those council members who have served two terms as of the date of the next election.”
Brown’s demur was denied.
On December 27, 1989 a judgment was entered with Krieger saying, “it is hereby adjudged and decreed that any member of the City Council of the city of Cerritos who have served two or more consecutive terms is prohibited from seeking reelection pursuant to the provisions of Article IV of the Charter of the city of Cerritos.”
Attorney General’s opinions are usually treated as authoritative by the officers and agencies who have requested them.
But the city of Cerritos did not request the 2004 AG’s opinion, Cerritos residents requested the opinion.
The AG’s website states, “Opinions of the Attorney General, while not binding, are entitled to “great weight.” In the absence of controlling authority, these opinions are persuasive since the legislature is presumed to be cognizant of that construction of the statute.(Napa Valley Educators’ Association v. Napa Valley Unified School Disrict. (1987) 194 Cal.App.3rd 243, 251.)
But there was a controlling authority- the 1988 decision by Walker and the 1989 decision by Krieger, therefore the AG’s opinion is overridden.
In reality the AG, given the 1988/’89 decisions, should have never opined on Article IV.
HMG-CN sent an email Wednesday to City Attorney Mark Steres and City Manager Art Gallucci alerting them that HMG-CN wanted a quote Thursday afternoon. HMG-CN sent a second email on Thursday describing the story, that email went unanswered. HMG-CN sent another email Friday, this time to Gallucci, Steres, Barrows, and all City Council members asking for comment, that email went unanswered.
Click here to see Part 1 of the 80 page Soto v. Brown Case
Click here to see Part 2 of the 80 page Soto v. Brown Case
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