Filed 2/5/16
                              CERTIFIED FOR PUBLICATION




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                            (San Joaquin)
                                                ----



RALPH LEE WHITE,                                                   C073482

                 Plaintiff and Appellant,                   (Super. Ct. No. 39-2012-
                                                            00279925-CU-WM-STK)
        v.

CITY OF STOCKTON et al.,

                 Defendants and Respondents;

ANN JOHNSTON,

                 Real Party in Interest and Respondent.



      APPEAL from a judgment of the Superior Court of San Joaquin County, Lesley
Holland, Judge. Affirmed.

       Michael F. Babitzke, Inc., Michael F. Babitzke; and Aliyah S. Abdullah for
Plaintiff and Appellant

      John M. Luebberke, City Attorney, Neal C. Lutterman, Deputy City Attorney;
Burke, Williams & Sorensen, Manuela Albuquerque, and Stephen E. Velyvix for
Defendants and Respondents.

        Freeman Firm and Thomas H. Keeling for Real Party in Interest and Respondent.




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       This appeal asks us to interpret a term limit provision found in the City of
Stockton’s city charter. The voter adopted provision, section 606 of article VI of the
Stockton City Charter (hereafter section 606), reads in relevant part: “No person elected
as either Mayor or Councilmember shall be eligible to serve, or serve, as either Mayor or
Councilmember for more than two (2) terms . . . .”
       Plaintiff Ralph Lee White contends the measure imposes a limit on the cumulative
number of terms a person may serve in elective office, no matter the combination of
offices served. The City of Stockton (the City) argues, and the trial court found, the
measure does not impose a cumulative limit. We agree with the City and affirm the
judgment.
                                     BACKGROUND
       By petition for writ of mandate, White sought to remove real party in interest Ann
Johnston as mayor of the City of Stockton and to enjoin placing her name on the
municipal election ballot of June 2012 for reelection as mayor. White contended
Johnston was ineligible to sit as mayor and to run for reelection under section 606. He
argued section 606 limited a person from serving in elected office, either as mayor or as a
council member or in any combination of both, to no more than two cumulative four-year
terms. Because Johnston had served two terms as a council member prior to being
elected mayor, White asserted she was ineligible to serve as mayor and to run for
reelection.
       The trial court denied White’s petition for an alternative writ. Johnston’s name
was placed on the June 2012 ballot, as was White’s, who also was running for mayor.
Johnston received the most votes in the election and qualified for a runoff election.
White did not qualify. That November, Johnston lost the general election.
       Following a hearing, the trial court on March 11, 2013, denied White’s petition for
writ of mandate. A restriction on the constitutional right to hold public office must be
expressed in unambiguous terms. The court found section 606 was ambiguous because it

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did not clearly and plainly impose a cumulative term limit. It then found the City’s
construction of section 606 as not imposing a cumulative limit was reasonable and not
clearly erroneous in light of the official ballot pamphlet used when the voters adopted
section 606 and the City’s consistent practice of not reading section 606 as imposing a
cumulative limit.
       White appeals from the trial court’s judgment.
                                      DISCUSSION
       We conclude section 606’s plain language indicates the measure applies to the
offices of mayor and council member separately, not cumulatively. Were we to
determine the measure was ambiguous, we would reach the same conclusion. The
materials before the voters when they adopted section 606, the City’s consistent
interpretation and application of the measure, and other provisions of the city charter
regarding elected officers, indicate the voters intended section 606 to apply to the offices
of mayor and council member separately, not cumulatively.
                                              I
                                    Standard of Review
       Construing a city charter is a legal issue we review de novo. (United Assn. of
Journeymen v. City and County of San Francisco (1995) 32 Cal.App.4th 751, 759, fn. 6.)
The same principles of construction we apply to statutes apply to interpreting city charter
provisions. (Id. at p. 760.)
       “In construing a provision adopted by the voters our task is to ascertain the intent
of the voters. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 (Lungren).) We look
first to the words themselves, which should be given the meaning they bear in ordinary
use. (Id. at p. 735; Killian v. City and County of San Francisco (1978) 77 Cal.App.3d 1,
7.) If the language is clear and unambiguous there is no need for construction and courts
should not indulge in it. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 800.)
However, this plain meaning rule does not prohibit a court from determining whether the

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literal meaning of a charter provision comports with its purpose, or whether construction
of one charter provision is consistent with the charter’s other provisions. (See Lungren,
supra, at p. 735.) Literal construction should not prevail if it is contrary to the voters’
intent apparent in the provision. (See California School Employees Assn. v. Governing
Board (1994) 8 Cal.4th 333, 340.) ‘An interpretation that renders related provisions
nugatory must be avoided . . . , [and] each sentence must be read . . . in the light of the
[charter’s overall] scheme . . . .’ (Lungren, supra, at p. 735.) Provisions relating to the
same subject matter must be harmonized to the extent possible. (Schmidt v. Retirement
Board (1995) 37 Cal.App.4th 1204, 1210.)
       “When statutory language is susceptible of more than one reasonable
interpretation, courts should consider a variety of extrinsic aids, including the ostensible
objects to be achieved, the evils to be remedied, the legislative history including ballot
pamphlets, public policy, contemporaneous administrative construction and the overall
statutory scheme. (Lungren, supra, 45 Cal.3d at p. 740, fn. 14; San Bernardino Valley
Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 601.) As a last
resort, the interpretation that leads to the more reasonable result will be followed.
(Californians for Population Stabilization v. Hewlett–Packard Co. (1997) 58 Cal.App.4th
273, 295 [disapproved on another ground in Cortez v. Purolator Air Filtration Products
Co. (2000) 23 Cal.4th 163, 171, 175].) A court may not insert qualifying provisions not
included, and may not rewrite a statute to conform to an assumed intention which does
not appear from its language. (Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54
Cal.App.4th 121, 134.)” (International Federation of Professional & Technical
Engineers v. City and County of San Francisco (1999) 76 Cal.App.4th 213, 224-225.)
                                              II
                            Interpreting Section 606 on Its Face
       With these rules of construction in hand, we turn to section 606. Written by the
city council and approved by the electorate, it reads in pertinent part: “No person elected

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as either Mayor or Councilmember shall be eligible to serve, or serve, as either Mayor or
Councilmember for more than two (2) terms . . . .” White contends section 606 is not
ambiguous, and on its face imposes a cumulative term limit on serving as an elected city
official. He asserts the term “either” means “one and the other of two” or “one or the
other of two.” He claims this definition makes it clear section 606 prohibits candidates
from serving in any combination of the two offices for more than two terms.
       White also contends section 606’s second reference to mayor or council member is
really a reference to an elected office on the city council, just as the measure’s first
reference to “person[s] elected as either Mayor or Councilmember” can be seen as a
reference to any elected member of the city council.
       The measure’s language is clear, but it does not support White’s interpretation.
Section 606 is addressed to certain “persons.” Its subjects are the individuals elected as
either mayor or council member, who collectively comprise the city council. However,
the measure prohibits those persons from serving, or being eligible to serve, in either the
office of mayor or the office of council member for more than two terms. The restriction
imposes term limits based on the elected office, not on membership in the city council as
a whole.
       As a conjunction, the word “either” is “used as a function word before two or
more coordinate words, phrases, or clauses joined [usually] by or to indicate that what
immediately follows is the first of two or more alternatives . . . .” (Merriam-Webster’s
Collegiate Dict. (11th ed. 2006) p. 399, col. 1, original italics.) Section 606 imposes
limits on a person serving in the office of mayor, or, alternatively, the office of council
member, but not on both cumulatively.
       White contends that if the city council, which authored section 606, had intended
the provision to apply to each elected office independent of the other, it could have
included language expressly stating so. The lack of such language, White asserts, shows
the city council’s intention that section 606 apply cumulatively. To the contrary, in this

                                               5
instance, the lack of such language indicates the city council did not intend for section
606 to apply cumulatively.
       Constitutional law requires any limitation on a citizen’s right to stand for election
for a public office to be stated expressly and clearly. “[T]he right to hold public office,
either by election or appointment, is one of the valuable rights of citizenship. . . . The
exercise of this right should not be declared prohibited or curtailed except by plain
provisions of law. Ambiguities are to be resolved in favor of eligibility to office.
[Citation.]” (Carter v. Commission on Qualifications of Judicial Appointments (1939) 14
Cal.2d 179, 182.) The right to run for, and hold public office may “be curtailed only if
the law clearly so provides.” (Woo v. Superior Court (2000) 83 Cal.App.4th 967, 977.)
       Because of this rule, it was incumbent upon the city council, if it intended section
606 to apply cumulatively, to say so clearly. It did not. For example, the California
Constitution imposes a cumulative limit on the number of terms a person may serve in
the state legislature. It reads, in part: “During her or his lifetime a person may serve no
more than 12 years in the Senate, the Assembly, or both, in any combination of
terms. . . .” (Cal. Const., art. IV, § 2, subd. (a)(4).) Section 606, however, does not
include a similar type of statement. Because the measure does not contain an express and
clearly written cumulative limitation, we are required to resolve any ambiguity in favor of
eligibility to run for office.
       The City’s interpretation does just that. Its construction is reasonable and clear
from the measure’s language: No person elected as either mayor or council member may
serve in the office to which he or she was elected for more than two terms. For example,
a person elected as mayor is not eligible to serve as mayor for more than two terms, nor is
he or she eligible to serve as a council member for more than two terms if he or she later
wins an election to that office.




                                              6
                                             III
                      Interpreting Section 606 Using Extrinsic Aids
       Because the City’s interpretation is the only reasonable interpretation, we need not
rely on extrinsic aids to see if a different interpretation would apply. However, were we
to conclude White’s interpretation of section 606 was reasonable, and the measure was
therefore ambiguous, our review of extrinsic aids would still convince us that the
Stockton voters did not intend section 606 to impose a cumulative limitation. Taken
together, the ballot materials, the city’s implementation of section 606, and other
provisions in the city charter indicate the voters intended section 606 to apply to the
offices of mayor and council member separately, not cumulatively.
       We begin by reviewing the ballot materials, but to do that correctly, we must place
them in context. They disclose the voters were given an opportunity to adopt a more
restrictive term limit provision, but the voters instead chose what became section 606. At
the general election in 1986, Stockton voters were asked to approve one of two city
charter amendments designed to reform the city council. Both addressed the election of,
and qualifications for, the offices of mayor and council member. The first proposed
amendment, Measure B, proposed the city council consist of a mayor and eight council
members. The mayor would be elected at large, and the council members would be
elected through district elections, with one council member elected from each district.
Measure B also included a term limit provision, which read: “No person elected as a
member of the City Council shall be eligible to serve, or serve, for more than two
consecutive terms . . . .” (Italics added.) Because Measure B defined the city council as
including the mayor and the council members, its term limit provision, applying as it did
to all persons elected as members of the city council, would have imposed a cumulative
term limit.




                                              7
       The other proposed amendment, Measure C, included the provision that became
section 606. Measure C proposed the city council consist of a mayor and six council
members. The mayor would be elected at large, but, unlike in Measure B, all of the
City’s voters would elect a council member for each of the six districts from the two
candidates who received the most votes in separate district elections. Also, unlike
Measure B’s term limit provision that applied to all persons “elected as a member of the
City Council,” Measure C’s term limit provision, i.e., what became section 606,
prohibited persons elected as “either council member or mayor” from serving or being
eligible to serve “as either council member or mayor” for more than two terms.1
       At the election, then, the voters were given the opportunity to adopt a term limit
provision that would have applied cumulatively, and they chose instead a provision that
did not expressly impose a cumulative limit. This indicates the voters did not favor a
cumulative limitation; they intended section 606 to apply to each elected office
separately. “ ‘ “Where a statute, with reference to one subject contains a given provision,
the omission of such provision from a similar statute concerning a related subject is
significant to show that a different intention existed.” [Citation.]’ [Citation.]” (People v.
Licas (2007) 41 Cal.4th 362, 367.)
       Other ballot materials do not strongly indicate that Measure C’s term limit
provision would apply cumulatively. The city attorney’s impartial analysis of Measures
B and C implied the term limit provisions in both measures would apply to the separate
elected offices. Describing Measure B, the city attorney wrote: “No councilmember or
the Mayor could serve more than two consecutive terms . . . .” Describing Measure C,




1      We note the measure’s language contained in the ballot materials used the phrase
and spelling “council member or mayor,” while the codified version of section 606 uses
the phrase and spelling “Mayor or Councilmember.” Nothing in the record explains the
differences. Like the parties, we assume the differences are immaterial.

                                             8
the city attorney wrote: “No councilmember or the Mayor could serve more than two (2)
terms . . . .” These statements distinguish between the two elected offices. Voters would
not understand these statements to mean the council members and mayor were limited to
two cumulative terms.
       Only one argument contained in the ballot materials addressed the term limit issue;
the argument in favor of Measure C. That argument stated: “Measure C would also limit
council members to two terms in office, ridding the city of ‘Career Politicians’ and
provide a fresh source of new ideas.” Unlike the actual language of Measure C, the
argument either addressed itself only to council members, or, more likely, it did not
distinguish between council members and the mayor.
       After reading the ballot measures’ actual language, the city attorney’s analysis,
and the argument in favor of Measure C, voters may have been confused as to what the
term limit provision in Measure C actually would do. We find section 606’s actual
language and the voters’ choice of Measure C over Measure B to be the most persuasive
evidence of intent. The ballot argument, because of its contradiction to the measure’s
language, is the least compelling evidence of intent in this instance. “As a general matter,
. . . ballot pamphlet arguments are intended as advocacy pieces, and voters undoubtedly
are aware that such arguments may tend to overstate or exaggerate the benefits or
detriments of a proposition and often are written in broad rhetorical terms that do not
necessarily reflect the specific language or effect of the measure itself. As a
consequence, a court must be cautious in considering such arguments and in attempting
to gauge what weight the arguments properly should bear in the court’s interpretation of a
proposition’s language.” (Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24
Cal.4th 537, 585 (conc. & dis. opn. of George, C.J.).)
       We find another indication of voter intent from reviewing how the City has
applied section 606. As we would expect, the City has not applied it cumulatively. The
Stockton City Clerk, Bonnie Paige, declared the City has consistently interpreted section

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606 to apply to each elected office independently to preclude a person from holding more
than two terms as a council member or more than two terms as mayor. The City has
never applied section 606 to preclude a council member who has served two terms in that
office from running for mayor, or to preclude a mayor who has served two terms in that
office from running for council member. Since the voters adopted section 606, two
persons who have served two terms as council members have run for mayor, and both
stood for election. No person who has served two terms as mayor has run for council
member. The City’s application of section 606 is another indication that the voters did
not intend section 606 to be applied cumulatively.
       A third type of extrinsic aid to assist our analysis is the city charter itself. When
constructing a charter provision, we are obligated to harmonize it with other charter
provisions. White contends that because the mayor and the council members are all
members of the city council, section 606 should apply cumulatively. We disagree,
because the charter treats the offices of mayor and council member separately except
where it expressly says it is treating them cumulatively. Section 606 best harmonizes
with the charter when we interpret it to apply to the offices of mayor and council member
separately.2
       The charter distinguishes between the city council, the office of mayor, and the
office of council member. The city council is the governing body of the city. Members
of the city council are the six “Councilmembers” and the “Mayor.” (Stockton Charter, §
401.) When the charter addresses the members of the city council cumulatively as a
group, it expressly does so by referring to them as the “Council” (Id., § 401 et seq.) or
“City Council.” (Stockton Charter, § 500 et seq.) When the charter addresses the
members of the city council collectively and individually, it does so by using such



2     On our own motion, we take judicial notice of the Stockton City Charter. (Evid.
Code, § 451, subd. (a).) (See http://qcode.us/codes/Stockton/)

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phrases as: “Neither the Council nor any of its members nor the Mayor” and “the
Council, its members and the Mayor.” (Stockton Charter, § 408.) Of course, section 606
does not use any of the language the charter uses when the charter refers to the members
of the city council collectively.
       Except for those circumstances just noted, the charter treats council members and
the mayor separately. Council members and the mayor are elected under different
procedures. Council members are nominated through district elections and then voted
upon by the voters of the entire city at a general municipal election. Each council
member must reside in the district he or she represents. (Stockton Charter, § 601.)
Signatories to nominating papers for a candidate for council member must reside in the
candidate’s district. (Stockton Charter, § 703.) In contrast, the mayor is elected by all of
the city’s voters at a primary municipal election. If no candidate receives a majority of
the votes, the two candidates receiving the most votes vie for the office at a runoff
election to be held at the next general election. The candidates for mayor must reside in
the city but not in any particular district. (Stockton Charter, § 602.) The signatories to
his or her nominating papers must reside in the city but not in any particular district.
(Stockton Charter, § 703.)
       The charter also imposes on the mayor more responsibility in governing the city
than it does on council members. The mayor is to devote his or her full time to the office.
(Stockton Charter, §§ 410, 1100.) The charter does not impose a similar requirement on
council members. The charter mandates “the Mayor shall be the political leader within
the community by providing guidance and leadership to the Council, by expressing and
communicating to those he or she serves the City’s policies and programs and by
assisting the Council in the informed, vigorous and effective exercise of its powers.”
(Stockton Charter, § 1101.)
       Continuing with similar examples, we note the mayor is required to preside at city
council meetings, to control the agenda for those meetings, to make recommendations to

                                             11
the city council and the city manager on policy and program matters, and to direct
appointed city officials to report to the council. (Stockton Charter, § 1102(a), (b), (c),
(d), (l).) The mayor is required to give a state of the city address annually and to
articulate the policy plans he or she proposes for the City. (Id., § 1102(i).) The mayor is
also required to nominate a vice mayor from among the council members. (Stockton
Charter, § 1103.)
       The mayor oversees the City’s budget. The mayor prepares and delivers to the
city council the Mayor’s Proposed Budget Priorities and Direction and the Mayor’s
Budget Message (Stockton Charter, § 1905), and the Mayor’s Final Budget
Modifications. (Stockton Charter, § 1907.) The mayor recommends adjustments to the
city budget and proposes modifying or curtailing any city service. (Stockton Charter, §
1102(k).) Council members do not carry these obligations.
       With the city charter so clearly distinguishing between the offices of mayor and
council member, section 606 can be harmonized with the charter only by constructing it
to impose term limits on the offices of mayor and council member separately. Just as the
charter distinguishes between the separate offices unless it expressly addresses them
collectively, section 606 distinguishes between the separate offices, and it does so
without expressly addressing the offices in any type of collective manner.
       In short, all of the extrinsic aids we may legitimately review—the ballot materials,
the City’s practice under section 606, and the language of the city charter—indicate the
voters intended section 606 to apply to the offices of mayor and council member
separately, not cumulatively. The trial court reached the correct result.
                                             IV
                                 Alleged Evidentiary Error
       White asserts the trial court erred when it determined two declarations he
submitted to support his petition were irrelevant. The trial court did not err. One
declaration was from White, attesting that he was a council member when Measure C

                                             12
was placed on the ballot, and that the council intended the term limit provision to apply
cumulatively. The other declaration was from Michael Rishwain, an attorney employed
in the city attorney’s office when Measure C was drafted and who assisted in preparing
the city attorney’s impartial analysis. Mr. Rishwain stated it was his recollection that the
consensus among attorneys in the city attorney’s office was that the term limit provision
would apply cumulatively.
       These declarations were irrelevant. Only ballot materials placed before the voters
are relevant to determining what the voters intended when they adopted section 606.
Individual legislator opinions and legislative committee reports that were not provided to
the voters are inadmissible to determine voter intent. (Robert L. v. Superior Court (2003)
30 Cal.4th 894, 904-905; Delaney v. Superior Court, supra, 50 Cal.3d at p. 801, fn. 12.)
                                       DISPOSITION
       The judgment is affirmed. Costs on appeal are awarded to defendants and the real
party in interest. (Cal. Rules of Court, rule 8.278(a).)



                                                           NICHOLSON          , J.



We concur:



      BLEASE                 , Acting P. J.



      DUARTE                 , J.




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