The Beverly Hills City Council decided in a tense hearing to place term limits for Council members on the ballot on June 7, 2022. If approved by a majority of voters, the initiative would limit those holding city elected positions (Councilmembers and City Treasurer) to three terms. But the initiative contains a legally problematic provision that would apply the limits retroactively, including to the Council members currently serving in office. In a memo to the City Council, City Attorney Laurence Wiener expressed ambivalence over whether that provision would stand legal muster. Nonetheless, a majority of the Council voted to place the initiative on the ballot as written, with Mirisch and Vice Mayor Robert Wunderlich casting no votes.
While term limits exist throughout different levels of government, they are not required in most cases. At the highest level of government, the President of the United States has been limited to two terms since the ratification of the 22nd Amendment to the United States Constitution.
United States Senators and Representatives, however, can serve without term limits (Democrat Representative John Dingell from Michigan holds the record for longest time served at 59 years). On the state level, members of the California State Legislature can serve 12 years in either the Assembly, the Senate, or a combination of the two. Californian governors are limited to two terms. In Los Angeles County, County Supervisors can hold the position for three terms.
A staff report compiled for the Jan. 26 City Council Study Session notes that, as of October 2019, 123 of California’s 482 cities had voter established term limits. Voters in Santa Monica passed a ballot initiative in 2018 restricting city council members to three terms.
Under the California Government Code, local jurisdictions may impose term limits on city councils. As Wiener’s memo points out, however, the text of the law explicitly states that the limits should not consider terms served prior to the adoption of the law. According to Government Code section 36502, “Any proposal to limit the number of terms a member of the city council may serve on the city council shall apply prospectively only.”
While the question has never been addressed in court, Wiener’s memo points to an opinion issued by then-California Attorney General Kamala Harris in 2012. That year, the Northern California city of Loomis passed an initiative limiting city council members to two consecutive four-year terms. In response to a request for guidance by a state lawmaker, Harris released an eight-page opinion holding that new term limits could not apply to terms previously served.
“A term served on a town council that was served prior to the effective date of a local initiative term-limit ordinance may not be counted against the term limit imposed by that ordinance,” Harris wrote. “We find no ambiguity in the requirement of Government Code section 36502(b) that locally enacted term-limit provisions must apply prospectively.”
Wiener’s memo dives into the legislative history behind that Government Code section. In particular, he looks at SB 2, the 1995 law that introduced the word “prospectively” into the code. At the time, the Secretary of State filed a report on the bill that clarified the understanding of the word: “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.”
But, Wiener also noted, “the Secretary of State’s report is not a traditional source of legislative intent. The Secretary of State is not a member of the legislature and his report is not direct evidence what the legislature intended.”
Timing of Initiative
There was some confusion on the matter of when the initiative would appear on the ballot. At the Jan. 26 Study Session, the City Council instructed staff to place the initiative on the ballot in the Nov. 2 Los Angeles County General Election. But at the Feb. 17 Regular Meeting, the Council voted to put the matter on the June 7, 2022, ballot. This change hinges on the legal definition of the term “regularly scheduled election.” The law that enables cities to place term limits on the ballot requires that they do so only in regularly scheduled elections and not special elections. The next eligible date is the statewide election in June 2022.
The resolution passed by the Council does allow for the possibility that the state legislature may alter election law in such a way that a regularly scheduled election happens sooner. The resolution states that the initiative will come before residents on “Tuesday, June 7, 2022, or the next regularly scheduled election date, whichever is earlier.” But, as Wiener told the Council, he puts that down as a “small chance.”
The confusion seems to have animated some of the opposition voiced by members of the public during the meeting. Many of the residents who called and wrote into the Feb. 16 meeting saw the move as an attempt to bar Councilmember Mirisch from serving another term. Under the original timeline, if the initiative were to pass this November as written, Mirisch would not be able to run for re-election on the June 2022 ballot. Now, with the initiative moved to the same ballot as the council election, Mirisch will have the chance to serve at least one more additional term.
Despite this chance of election date, the council nonetheless heard strong opposition to the proposal. Many took issue with they perceived as the legal flimsiness of the initiative.
“I would urge the city council not to invite litigation, not to invite unnecessary expenditures and to enact an ordinance that is facially valid as opposed to one which is not facially valid,” Janice Barquist said.
Beverly Hills-based lawyer and regular TV legal commentator Ron Richards also appeared via video. In an extended Q&A between Mirisch and Richards, Richards warned that the city would be inviting litigation on itself with the initiative.
“I don’t understand why the council would want to adopt something that is so legally flawed in its inception. A statute should take the narrow view, so it passes without controversy. In this statute, there’s no support,” Richards said.
The vast majority of the opposition during the hearing saw the proposal as an affront to Mirisch. “I am aware that the agenda of the rest of the City Council members in adopting term limits is to prevent John Mirisch from running for reelection, as he is the only council member that would be affected,” one comment said. The initiative would also prevent Councilmembers Lili Bosse and Dr. Julian Gold from seeking reelection when their terms expire in two years.
Multiple comments tied the term limits to Mirisch’s lone opposition to the 2020 mixed use ordinance, which allows combination commercial-residential developments in certain commercial corridors in the city. The comments claimed evidence that the term limits targeted Mirisch because of his opposition to the ordinance. “[T]he rest of the city council members want this ordinance pushed through so they can reward their fat cat developer friends with lucrative contracts and most likely received kickbacks,” one comment said. “Please don’t approve term limits or you can make sure that, when the rest of the current council members who support the mixed-use ordinance come up for reelection, we will not vote to keep them in office.”
But in a twist, Councilmember Lili Bosse read a “mass email” that she said had been forwarded to her by a friend that made many of the arguments voiced by the commenters. The email, as read into the record by Bosse, warned that “the City Council majority intends to adopt term limits to preclude our best council member, John Mirisch, from running for council again in the June 7, 2022, city election, at which three council members will be elected.”
“The city council majority is displeased with Mirisch because he was the only one of them who cared that the vast majority of residents opposed their mixed-use ordinance, which would bring tall, substandard, under-parked buildings to our neighborhoods,” Bosse read from the email. She declined to name the resident who sent out the email. Bosse directly asked Weiner if the ordinance would prevent Mirisch from running in the June 2022 city election and he responded that it did not.
When it came time for Mirisch to speak, he did not directly address the outpouring of support on his behalf, though he noted that the initial decision to place the item on the November ballot may have caused some confusion. Before he voted against the resolution, he argued that term limits made sense of certain governmental structures, but not for Beverly Hills. “From my perspective, maybe in larger governing bodies where special interests can play a larger role, term limits may make sense in executive positions. I don’t necessarily agree with the notion that term limits make sense in smaller communities,” he said.
Other councilmembers, however, responded directly to the comments and the accusations leveled against them.
“There’s a lot of misinformation out there,” said Gold, who moved to place the initiative on the ballot as written. “The fact of the matter is that the ordinance is not just about John. The ordinance is about Lili and it’s about me, and ultimately it’ll be about Bob and Lester, and it will be about all of those who came before should they ever want to seek reelection to a position that they held for three terms.”
“I feel very insulted and I have to say on the record that nowhere in any fiber of my being am I discussing this or wanting to put this on the ballot for anybody specifically,” said Bosse. “This is not something that we as a council are deciding. This is something that we are asking our community to decide.”