De Kamp, 041684 CAAGO, AGO 84-409
|Docket Nº:||AGO 84-409|
|Case Date:||April 16, 1984|
"The board of administration of this system is continued in existence. "It consists of: " ..................... "(c) An official of a life insurer, an officer of a bank, and an elected official of a contracting agency, and one person representing the public, appointed by the Governor."Effective January 16, 1984, section 20100(c) was amended but still retains the requirement for "an official of a life insurer." On or about April 30, 1981, then-Governor Edmund G. Brown, Jr., appointed Mel Rubin to the Board of Administration of the Public Employees' Retirement System as the "official of a life insurer" pursuant to Government Code section 20100, subdivision (c). Since April 30, 1981, Mr. Rubin has held and exercised this position on the Board of Administration. His term continues to January 15, 1985. At the time of his appointment, the proposed defendant was a trustee of certain Taft-Hartley trust funds. The Taft-Hartley plan is a benefit program negotiated by a labor union with the employer, pursuant to which the employer makes contributions into the plan on behalf of the members of the union. (29 U.S.C. § 186.) The particular plans at issue here provide for a retirement pension; a joint vacation plan; a supplementary unemployment and disability plan; a medical and dental insurance program; and a joint death benefit plan. Under the joint death benefit plan, employers contribute into a fund from which beneficiaries of employees are paid death benefits upon the employees' death. There are additional payments in the event of an accidental death. Contentions The proposed relator contends that a trustee of a Taft-Hartley trust which pays death benefits to an employee's family and other benefits does not hold the requisite qualifications for appointment to the Board of Administration of the Public Employee's Retirement System as "[a]n official of a life insurer." The proposed defendant contends that his position as trustee of a Taft-Hartley employee benefit plan renders him an official of a life insurer as that term is used in Government Code section 20100, subdivision (c). Criteria for Deciding Whether to Grant Leave to Sue in Quo Warranto An action in quo warranto challenging the qualification of an office-holder may be brought only by the Attorney General or, with the Attorney General's consent, by a private party. (Gov. Code, §§ 803, 810.) Quo warranto actions are commenced in the interest of the public to redress wrongs that injure the public. (City of Campbell v. Misk (1961) 197 Cal.App.2d 640, 648, 650; People v. Lowden (1855) 2 Cal.Unrep. 537, 542.) Historically, the Attorney General has not granted leave to sue in quo warranto unless some "public purpose would be served." (E.g., 36 Ops.Cal.Atty.Gen. 317, 319 (1960); 29 Ops.Cal.Atty.Gen. 204, 208 (1957); 27 Ops.Cal. Atty.Gen. 225, 229 (1956); 26 Ops.Cal.Atty.Gen. 180, 190 (1955); 21 Ops.Cal.Atty.Gen. 197, 201 (1953).) The "public purpose" requirement has been viewed as requiring "a substantial question of law or fact which calls for judicial decision." (25 Ops.Cal.Atty.Gen. 237, 240 (1955).) While "it is not the province of the Attorney General to pass upon the issues in controversy, but rather to determine whether there exists a state of facts or questions of law that should be determined by a court" (25 Ops.Cal.Atty.Gen. 332, 341 (1955); 24 Ops.Cal.Atty.Gen. 146, 151-152 (1954); 19 Ops.Cal.Atty.Gen. 87, 88 (1952); 17 Ops.Cal.Atty.Gen. 46, 47 (1951); 15 Ops.Cal.Atty.Gen. 62, 63 (1950)), the mere existence of a legal dispute does not establish that the public interest requires a judicial resolution of the dispute or that leave automatically should be granted for the proposed relator to sue in quo warranto. In City of Campbell v. Mosk, supra, 197 Cal.App.2d 640, the court said:
"We do not believe . . . that the debatable issue inevitably produces the quo warranto. Indeed, the Attorney General's exercise of discretion is posited upon the existence of a debatable issue. To hold that the mere presentation of an issue forecloses any exercise of discretion would mean, in effect, that, contrary to the holding in Lamb [v. Webb (1907) 151 Cal. 451] case, the Attorney General could exercise no discretion. The crystallization of an issue thus does not preclude an exercise of discretion; it causes it. " ..................... "The exercise of the discretion of the Attorney General in the grant of such approval to sue calls for care and delicacy. Certainly the private party's right to it cannot be absolute; the public interest prevails . . . ." (197...
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