This week Beverly Hills city council in a 3–2 split vote agreed to put the question of term limits to voters at the June 7, 2022 municipal election. Pending voter approval of the ballot initiative, the city will enact a three-term, lifetime limit for elected positions of city council and treasurer. And terms already served would count against the three-term limit. Moreover term limits would appy to current elected officials too.
Why term limits? The issue was brought to city council’s attention last July by two former councilmembers, Nancy Krasne and Robert Tanenbaum, who urged a November 2021 ballot measure to limit the terms of elected officials to three and, importantly, to apply that limit to elected officials past, present and future. City council agreed to bring that forward for discussion and it appeared on the January 26th agenda for discussion.
January: City Council Agrees to Put it to Voters
On January 26th city council voted 4–1 in study session to put term limits to voters in November. But the timing of the ballot measure (in an off-year election) and the retrospective application of term limits, which would count terms already toward the three-term lifetime limit, generated concern among members of the public and even raised questions on the council dais.
The timing was a particular concern. Should an important change in Beverly Hills governance be decided in an off-year election in November? “I don’t really have a problem with it going on in November,” said Mayor Les Friedman. “I think quite frankly that is preferable.” The mayor’s logic for an off-year election: the city council election wouldn’t distract from the question.
Councilmembers Lili Bosse and Julian Gold quickly agreed to the timing and agreed, too, that past and current terms should count toward the term limit. Councilmember Robert Wunderlich agreed to count past terms served (it would apply to the current councilmembers) but he was uncertain about the timing. He reluctantly agreed.
Councilmember John Mirisch dissented. “Quite frankly, it does seem to be a little bit discriminatory,” he said. Mirisch would be the only candidate immediately affected if voters approve term limits in November because he could not run for a fourth term in the next municipal election. (He has not said that he’s running.)
Despite concern about the timing and the applicability to terms already served, a council majority of four agreed to put the term limits measure on this November’s ballot. Staff was directed to return with a draft resolution to put the measure on the ballot and an accompanying draft ordinance to enact term limits should voters approve. Watch the video.
February: Speed Bumps on the Road to Term Limits
When city council discussed term limits on February 16th the concerns about timing and the retrospective application of term limits complicated the discussion. State statute requires a term limits initiative to appear on a “regularly scheduled election” ballot and prohibits the retrospective counting of terms served.
In January the staff report erroneously identified November as “the next regularly scheduled election.” In fact the municipal election on June 7, 2022 is the next regularly scheduled election. The term limits initiative would have to wait for the June ballot. For city council that was a problem: councilmembers clearly want term limits to go to voters before the municipal election.
If term limits is put to voters coincident with the city council election in June, then term limits could not prevent a three-term councilmember from potentially winning a fourth term in that election. John Mirisch is the only three-term councilmember up for reelection in 2022. Both the timing, and the counting of terms already served toward the three-term limit, appeared to the public like council was embracing term limits to keep him from a fourth term.
Public comment underscored the point. Callers labeled term limits in this form “self-serving and ill-motivated,” “unfair and wrong,” “politically motivated,” and “orchestrated to prevent John Mirisch from running in the next election.” Callers opposed term limits by about 10-to-1 and questioned the council majority’s “insidious motivation” to deny Mirisch the opportunity to run for reelection. “This is the epitome of the corruption that has infiltrated our city council,” one caller added, mentioning “kickbacks” from developers as a motivation.
The other point of contention was the retrospective counting of terms. The city council majority wants to count terms already served toward the proposed three-term limit. But state statute is clear on only counting terms served after enacting term limits (the law specifically uses the language “prospectively”).
Supporting that reading of the law, the California attorney general’s office a decade ago opined that enactment of term limits should not have “effect on the rights, obligations, acts, transactions and conditions performed or existing before the statute was adopted.” Hence it must be applied prospectively.
Public comment likewise took issue with the council’s interest to apply term limits retrospectively. One person called it “a blatant disrespect for the law” and part of the plan to keep Mirisch off the ballot. Another called it out as a transparent effort “designed to deny one person, councilperson John Mirisch, our champion, his term and it is an affront to democratic ideals.”
Council conceded that the next “regularly scheduled election” is June 7, 2022 and the resolution approving term limits for the ballot identifies that municipal election as when the measure will appear. But the resolution includes a clause that would put it to the voters sooner if the legislature subsequently amends the election calendar:
Calling and giving notice of the holding of a municipal election to be held in the city of Beverly Hills on Tuesday, June 7, 2022, or the next regularly scheduled election date, whichever is earlier… — Resolution (emphasis added)
That clause keeps hope alive that term limits could reach the ballot in advance of the 2022 municipal election, which would keep Mirisch from running for reelection.
The timing problem aside, the retrospective application of term limits was much more problematic. The city attorney’s memo to council concedes that a plain reading of the term limits statute suggests that terms served prior to enactment could not count because that is not a ‘prospective’ application of term limits.
Beyond the attorney general’s opinion on ‘prospectively,’ the city attorney’s memo also refers to a report from the California Secretary of State that was provided to legislators in 1995 as lawmakers were drafting the term limits bill. The relevant passage:
This bill requires that limits apply prospectively; time in office already served by an officeholder would not count against any limit on time in office imposed as a result of this bill. — California Secretary of State report
The city attorney noted that legislators were aware of the secretary of state’s “interpretation of the proposed statute,” and that such knowledge speaks to the legislature’s intent to apply term limits only prospectively. The memo said the city could suffer an adverse judgement if the city’s term limits ordinance was challenged in court.
The city attorney’s memo identified an effective loophole, though: “An opinion of the Attorney General does not set binding legal precedent, so this opinion does not necessarily preclude other interpretations of the law.”
City council grasped at that opportunity to count terms served toward the proposed lifetime limit of three terms even if it left term limits vulnerable to challenge. Here is the rationale employed in the term limits ordinance to argue that retrospectively really means prospectively.
The California Attorney General has opined that prospectively means that terms served prior to the effective date of the ordinance cannot be counted against term limits established by the ordinance…. However, an ordinance which applies only to future terms of office meets the definition of “prospectively” used by the Attorney General. The term ‘prospectively’ does not preclude a law that applies to future acts, but which is guided by the acts or conditions which have occurred prior to the law’s enactment. Therefore, when applying a new law to a future action or condition, such as a limit on holding an elected office in the future, the law may rely on the acts or conditions which have occurred prior to the law’s enactment. Therefore, the City Council and the voters intend this ordinance to be prospective. The ordinance would not change the current term of persons in office on its effective date, but it would consider the past terms served by City officeholders. — Ordinance Section 4 (emphasis added)
The city attorney is not convinced that the rhetorical gymnastics will hold up to a court challenge, so he recommended adding a severability clause to the ordinance to separate the provision that could be stricken down from the rest of the ordinance.
However, to the extent that a court strikes down the City Council and the voters’ intent to have this ordinance apply to elected officeholders who previously served three terms, such intent shall be severable from the rest of the ordinance. The City Council and voters would have enacted the three term limit even if this means that the terms served by elected officeholders prior to the effective date of this ordinance cannot be counted against the term limits established by this ordinance. — Ordinance section 4
If the tortured logic of the term limits ordinance is successfully challenged, then the severability clause is something of an escape hatch. What the clause really says to the court: “If we’re wrong on this, what we really meant to do was to do it the way the legislature actually intended.”
The Beverly Hills term limits initiative is headed to the June 7, 2022 municipal election ballot. If voters approve it will take effect immediately but not in time to keep any current councilmember from a fourth term. Since councilmembers generally don’t seek fourth terms we can’t help but wonder if term limits is an answer to a question that nobody asked. Has the public been concerned about it?
We dug through the online archives of the Weekly and Courier going back to 2008 and, aside from the occasional comment for or against, we didn’t see term limits figure at all into the public conversation. Neither the Courier nor the Weekly has editorialized for or against term limits for city elected officials. It just seems not to be an issue in our community.
But city council did previously talk about term limits. Back in 2010 then-mayor Jimmy Delshad asked his colleagues to consider a limit of two terms because he thought it could bring “new blood” and ideas to city council. But Delshad himself expressed concern about how it would be received. He cautioned his colleagues, “This is not a political move for any reason at all… and it will not include anyone sitting on city council.” City council took no action. As the Courier reported, term limits was simply “shot down by councilmembers.”
But public comment to city council a decade ago anticipated the discussion today. On balance comments opposed term limits by 2-to-1 and all speakers at the meeting opposed it. They made a few salient points:
- We should not put term limits to voters at a low turnout election because only a few thousand voters could determine whether term limits would affect the electoral choice of more than 20,000 registered voters;
- Term limits is not necessary when Beverly Hills voters routinely turn out incumbents and elect newcomers to city council; and,
- Limiting the terms of elected councilmembers “increases the power of staff, lobbyists, and the bureaucracy.”
That last observation resonates with our reservation about term limits in Beverly Hills. Read our commentary.