Without Precedent

If a group of disgruntled Blue Lake residents succeeds in their effort to simultaneously recall three members of the city council, it will thrust the city into unprecedented territory. According to Journal consultations with more than a dozen legal experts and legislative analysts, the triple recall would leave the city with a council potentially unable to govern absent action from the state Legislature or intervention from the governor.

The issue stems back to Assembly Bill 2582, which passed the state Legislature in August of 2022. Before that law went into effect, a local recall election would see voters confront questions of whether to recall an officer and who should succeed them simultaneously on a single ballot. But as a part of a number of reforms designed to make it more difficult to recall elected officials, state Assemblymember Stephen Bennett authored A.B. 2582 to separate the recall vote from the election of a successor.

If those pushing for a recall are successful, first in getting enough signatures to put the issue before voters and then in getting a majority of Blue Lake voters to agree that Mayor John Sawatzky, Councilmember Kat Napier and Councilmember Elise Scafani should be removed from office, it would leave the council with just two occupied council seats. (And that’s assuming the council will have already appointed a replacement for Christopher Firor, who resigned in May.)

The California Government Code requires a city council to have a quorum of members present at a meeting to do just about anything, other than adjourn or order absent members to show up. If the recall effort succeeds, Sawatzky, Napier and Scafani would be removed from office as soon as the election results are certified, which would then immediately freeze the council, leaving it unable to take action to appoint their replacements or call an election.

“It’s been interesting going through it all and seeing there’s really no solution,” said Humboldt County Registrar of Voters Juan Paul Cervantes. “We saw it pretty early on in the process and game played it out and looked at the election code and the government code, and you saw what was lacking. We ran it by colleagues and everyone’s stumped.”

Cervantes said he is working with the offices of North Coast state legislators, Assemblymember Chris Rogers and Senate President Pro Tem Mike McGuire, to find a solution, potentially crafting legislation to address it. A representative for McGuire’s office confirmed both have met with Cervantes and their staffs are engaged on the issue.

Legal and legislative experts reached by the Journal either said they didn’t know enough to comment, did not want to comment with the recall pending or came to the same conclusion. The issue is very much on the radars of the California Secretary of State and Attorney General’s Offices, though neither would comment on it. The League of California Cities pointed the Journal to the California Government Code Section 36810, which specifies that it takes a majority of the council to constitute a quorum and limits the ability of a council without a quorum present to do anything other than adjourn or compel attendance of absent members. The organization then suggested the Journal contact the city attorney, saying they would have more “information on their city’s protocol.”

The matter is not a local protocol issue, however, but a gap between the government code’s quorum requirement and the election code, which requires a governing body to either appoint someone to fill a vacancy or officially call an election to fill vacant seats — actions requiring a quorum.

Blue Lake City Attorney Ryan Plotz said Blue Lake obtained outside counsel on the recall process at his recommendation and referred inquiries to Michael Colantuono. By email, Colantuono said there plainly is a “gap in the law here” that the legislature may have to step in to close.

“But cities have managed to function without quorums by doing only those things already approved in a budget or otherwise, and awaiting a quorum to make new policy,” he said.

If the recalls are ultimately successful, Colantuono also said he believes the lame duck council may be able to call a special election to fill its soon to be vacant seats before certifying the election results and being removed, or that the Humboldt County Board of Supervisors could step in and call the election for Blue Lake. (The Journal was unable to find provisions in law allowing one jurisdiction to step in and call another’s election.)

California Attorney General Rob Bonta weighed in on a similar situation in 2022, issuing what’s known as “an attorney general opinion,” a legal interpretation that is entitled to some deference by the courts but not legally definitive.

That opinion waded into the murky legal waters of Mission Viejo, a city of about 90,000 people south of Irvine. The details there are complex, but the basic story is that in 2018, a group sued the city under the voting rights act seeking to change its at-large system and the city entered into a settlement a short time later to institute “cumulative voting,” a system that gives voters as many votes in a single election as there are candidates, allowing them to cast them all behind a single candidate for office or otherwise divide them up as they see fit. The settlement also changed council members’ terms of office, aligning them all to come open simultaneously every four years.

The California Secretary of State’s Office ultimately had legal concerns about cumulative voting, implementation became delayed and the court gave the city more time to find a solution, while its council remained in a state of electoral limbo, with some members serving beyond their elected terms. In January of 2022, a local resident sued to remove three of the council’s members from office, contending they were serving past the expirations of their terms and were acting unlawfully as council members.

As part of their defense, Mission Viejo council members and the city argued that removing them from office would not be in the public interest as it would leave the council without a quorum, incapacitating the city government. (The resident ultimately won the case, but an appeals court ordered the council members in question to remain in office until the city held a special election.)

In his opinion, Bonta addressed the quorum question but did not weigh in unequivocally.

“Generally, a majority of a city council — a quorum — must be present to conduct any business,” he wrote. “However, two remaining members of the five-member city council may be authorized to fill a vacancy despite the lack of a quorum.”

In a footnote supporting this assertion, Bonta points to a 1939 California Supreme Court case, Nesbitt v. Bolz, which centers around whether a court could compel two members of Arcadia, California’s five-member city council to appoint people to fill the vacancies created by the recall of two of their colleagues after the fifth member of the council resigned in protest. The court found they could, but the case is far from apples to apples to Blue Lake, as Arcadia is a charter city that operates under a different set of rules than the California Government Code, which general law cities, like Blue Lake, are bound to. Bonta’s other citations — an appellate case and two previous attorney general opinions — seem contradictory at points and similarly murky.

In short, there appears to be no clear precedent.

Meanwhile, in Blue Lake, recall proponents continue their effort to get the roughly 256 signatures needed to qualify the recalls of Sawatzky, Napier and Scafani for the ballot, arguing that their decision not to adopt a housing element required by the state and to part ways with longtime City Manager Amanda Mager have “placed this city in jeopardy.” (Sawatzky, Napier and Scafani, meanwhile, have argued they’ve acted in the city’s best interest and the recall amounts to sour grapes over recent election results.)

Elissa Rosado, a recall proponent who is helping collect signatures, says they remain hopeful to collect the needed signatures by the Aug. 2 deadline.

Rosado, who says she considers the recall a “moral issue,” says she and other volunteers are aware that if the effort succeeds, the council will no longer hold a majority. She says they’ve consulted with the Humboldt County Elections Office and believe the state attorney general would appoint a council member to allow it to reach a quorum and appoint new members or call an election.

There appears to be no precedent for that, nor anything in the government or election codes that would currently allow it.

Thadeus Greenson (he/him) is the Journal’s former news editor.

This article appears in The Conductor.