Friday, April 11, 2003
Lockyer Says Term Limits Do Not Bar Senate Majority Leader From Running Again
By a MetNews Staff Writer
By a MetNewsStaff Writer
Term limits don’t bar Senate Majority Leader Don Perata, D-Oakland, from running for re-election next year, Attorney General Bill Lockyer has concluded.
Lockyer issued an opinion late Wednesday in response to a request by Perata, a senator since 1998.
Perata, then an assemblyman, was first elected to the Senate on Nov. 3, 1998 to serve out the second half of Democrat Barbara Lee’s four-year term after she was elected to Congress. Perata didn’t take his seat in the Senate until Dec. 7, 1998, when the Legislature began its 1999-2000 session.
He was elected to a full term in 2000, and was sworn in for that term on Dec. 4, 2000.
Proposition 115 establishes a limitation of two four-year terms for constitutional officers and state senators, and three two-year terms for Assembly members, beginning with the 1990 general election. The limitation generally applies to a partial term, but not to “any unexpired term to which a person is elected or appointed if the remainder of the term is less than half the full term.”
Since Perata served a few days less than two years of Lee’s term, measured from his swearing-in date, the exception applies and the partial term does not count, Lockyer said.
“We believe the most reasonable interpretation ... is to measure the remainder of the unexpired term from the date when the oath of office was taken,” the attorney general explained. “Only actual service in office would be counted.”
This district’s Court of Appeal, Lockyer noted, reached a similar conclusion in interpreting the Los Angeles City Charter’s term limits provision and allowing former Councilman Mike Woo to run for the council again in 2001.
Measuring the time served from the swearing-in date makes sense, the attorney general said, because there were no legislative duties for Perata to perform before the Legislature convened. In a footnote, Lockyer said he was not expressing an opinion as to what the consequences would be if a newly elected legislator were to delay being sworn in during a session so as to reduce the length of time served to less than half the term.
Lockyer also cited the traditional rule that ambiguities concerning the right to hold office are construed in favor of eligibility.
In an unusual occurrence, Lockyer issued a press release commenting on the opinion.
“This opinion answers a simple question: Given the facts relating to Senator Perata’s assumption of office in 1998, may he run for one more term in the State Senate? Unfortunately, simple questions don’t always result in easy answers when applying complex and sometimes conflicting statutory, constitutional and court-made laws.
“The facts surrounding Senator Perata’s special election in 1998 are unique and, I believe, clearly lead to the conclusion that he is eligible to run for re-election. In short, Senator Perata did not begin serving his term until he took the oath and was authorized to exercise the powers and duties of a senator.
“There are those who will disagree with my interpretation of the law, and it is safe to assume that a court ultimately will decide the issue.”
The opinion, No. 3-106, was prepared for Lockyer by Chief Deputy Attorney General Peter Siggins and Deputy Attorney General Gregory L. Gonot.
Copyright 2003, Metropolitan News Company