The opinion
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
-----------------------------------
:
OPINION :
: No. 88-791
of :
: FEBRUARY 17, 1989
JOHN K. VAN DE KAMP :
Attorney General :
:
N. EUGENE HILL :
Assistant Attorney General :
:
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ALBERT J. KING has requested leave to file suit in quo
warranto to challenge the qualifications of Tony Silva to hold
elected office in the City of Huron. The dispute arises as a
result of the maintenance of two separate residences by Mr. Silva,
one in the City of Kerman and one in the City of Huron.
Mr. King's request raises the issue of whether or not Mr.
Silva is qualified to hold elective office in the City of Huron.
CONCLUSION
It is determined that leave to sue should be denied.
STATEMENT OF MATERIAL FACTS
Mr. Silva has been a member of the City Council of Huron
since 1978. He was first selected as mayor by the members of the
City Council in 1982. He was reelected to the City Council in
November of 1986 and was again selected mayor by his colleagues.1/
On or about April 5, 1983, Mr. Silva and his wife Martha
purchased a home located at 11510 W. Stanislaus in the City of
1. The statement of facts is based upon assertions made by
each party which have either been admitted or not controverted by
the other party. In his declaration submitted to this office,
Mr. Silva claims that when he was approximately 15 years old, his
family moved to 18754 11th Street in the City of Huron.
1. 88-791
Kerman, approximately 38 miles from the City of Huron. The Silvas
subsequently filed a claim for a homeowners' property tax exemption
on the property in the City of Kerman.
Sometime in July of 1983, Mr. Silva moved a 1,200 square
foot mobile home trailer, complete with two bedrooms, a bath and
kitchen, onto the property located at 18754 11th Street in the City
of Huron. The mobile home is owned by his brother-in-law. Since
October of 1983, the Silvas spend at least one to three nights a
week at the mobile home in the City of Huron.
CONTENTIONS OF THE PROSPECTIVE PARTIES
Mr. King contends Mr. Silva's residence is in the City of
Kerman and not in the City of Huron. As such, he contends
Mr. Silva has usurped, intruded into and unlawfully held and
exercised the office of City Councilman in the City of Huron. Mr.
King therefore claims Mr. Silva is in violation of Government Code
section 36502, which relates to the qualifications of a city
councilman.2/
Mr. Silva, however, declares the mobile home located in
the City of Huron to be his permanent domicile. In support of his
claim, Mr. Silva contends he registered to vote in 1973 and listed
as his address P.O. Box 364, Huron, California. It is his
contention that he is still registered to vote at this address. He
also states that his driver's license from 1982 to the present
lists the post office box as his address and lists his street
address as 18754 11th Street, Huron, California. He asserts that
the gas and electric bill for the mobile home is listed under his
name and is sent to the post office box in the City of Huron.
Further, he claims all of his mail is received at the Huron
address.
2. The parties raise the propriety of realtor's counsel's
participation in this matter, since he had previously advised the
proposed defendant on this issue. Also at issue, is the
propriety of the city attorney's representation of the proposed
defendant. Further, the proposed defendant claims this matter
arose as a result of an investigation by the Fresno County
Sheriff's Department occurring on or about August 29, 1986,
involving certain establishments, one of which was owned by the
proposed realtor. These issues are, however, outside the scope
of this inquiry.
2. 88-791
ANALYSIS
I
CRITERIA FOR QUO WARRANTO
In deciding whether to grant leave to sue in quo
warranto, the Attorney General considers the following factors:
1. Whether there is a substantial issue of law or fact
within the scope of the Code of Civil Procedure section 803,
that requires judicial resolution.
2. Whether the public interest will be served by seeking
a judicial resolution of the issue.
An action in quo warranto challenging the qualifications
of an office-holder may be brought only by the Attorney General or,
with the Attorney General's consent, by a private party (Code Civ.
Proc. §§ 803, 810). Quo warranto actions are commenced in the
interest of the public to redress wrongs that injure the public
(City of Campbell v. Mosk (1961) 197 Cal.App.2d 640, 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 realtor 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
3. 88-791
holding in the 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 Cal.App.2d at 650; 67
Ops.Cal.Atty.Gen. 151-154.)
II
ARE THERE JUSTICIABLE ISSUES ON THE QUESTION
OF PROPOSED DEFENDANT'S RESIDENCY
In reviewing the application of the realtor for leave to
sue, two questions must be answered: Has the proposed realtor
raised a substantial question about the qualifications of the
proposed defendant to hold office? And if he has, would the public
interest be served by resolution of the question?
Mr. King claims Mr. Silva is not qualified to hold office
pursuant to Government Code section 36502. This office has been
informed by the Council of County Governments that the City of
Huron adopted a city manager form of government. Thus, the
qualifications of its elected officers to hold office are
determined pursuant to Government Code section 34882.
Government Code section 34882 provides:
"A person is not eligible to hold office as a member
of a municipal legislative body unless he is otherwise
qualified, resides in the district and both resided in
the geographical area making up the district from which
he is elected and was a registered voter of the city at
the time nomination papers are issued to the candidate as
provided for in Section 22842 of the Elections Code."
In addition, Government Code section 1770 provides, in
pertinent part, as follows:
"An office becomes vacant on the happening of any of
the following events before the expiration of the term:
". . . . . . . . . . . . . . . . . . . . . . .
4. 88-791
"(e) His ceasing to be an inhabitant of the state,
or if the office be local and one for which local
residence is required by law, of the district, county, or
city for which he was chosen or appointed, or within
which the duties of his office are required to be
discharged; provided, however, that the office of judge
of a municipal or justice court shall not become vacant
when, as a result of a change in the boundaries of a
judicial district during an incumbent's term, said
incumbent ceases to be an inhabitant of the district for
which he was elected or appointed to serve."
The term "resides" as used in section 34882 is not
defined nor is the term "residence" as used in section 1770(e).
However,
"In determining the place of residence the following
rules shall be observed:
"(a) It is the place where one remains when not
called elsewhere for labor or other special or temporary
purpose, and to which he or she returns in seasons of
repose.
"(b) There can only be one residence.
"(c) A residence cannot be lost until another is
gained.
"(d) The residence of the parent with whom an
unmarried minor child maintains his or her place of abode
is the residence of such unmarried minor child.
"(e) The residence of an unmarried minor who has a
parent living cannot be changed by his or her own act.
"(f) The residence can be changed only by the union
of act and intent.
"(g) A married person shall have the right to retain
his or her legal residence in the State of California
notwithstanding the legal residence or domicile of his or
her spouse." (Gov. Code, § 244.)
The California Supreme Court has recognized that the term
"residence" as used in Government Code section 244 actually means
"legal residence" or "domicile." Walters v. Weed (1988) 45 Cal.3d
1, 7; Smith v. Smith (1955) 45 Cal.2d 235, 239; Fenton v. Board of
Directors (1984) 156 Cal.App.3d 1107, 1113. We believe that
definition should apply to Government Code sections 1770 and 34882.
5. 88-791
Elections Code section 200, subdivision (a), defines the
term "residence" as meaning a person's "domicile" for voting
purposes. It defines the domicile of a person as that place in
which his or her habitation is fixed, wherein the person has the
intention of remaining, and to which, whenever he or she is absent,
the person has the intention of returning. At any given time, a
person may only have one domicile. (See Elec. Code, § 200, subdiv.
(b).) Subdivision (c) of section 200 of the Elections Code
provides, however, that the residence of a person is that place in
which the persons' habitation is fixed for some period of time, but
wherein he or she does not have the intention of remaining. It
further provides that at any given time, a person may have more
than one residence, but may not have more than one domicile.
While Mr. Silva may have established "residency" in the
City of Huron, the question becomes whether or not he is domiciled
in that city pursuant to Government Code sections 34882 and
1770(e).
The test for determining a person's domicile is physical
presence plus an intention to make that place his permanent home.
(Fenton v. Board of Directors, supra, 156 Cal.App.3d at 1116.) In
applying this test, reviewing courts have looked at a number of
factors in order to determine a person's domicile. ( Id.) For
example, where a person votes, acts, and declarations of the party
involved and a person's mailing address. (Id., citations omitted.)
To insure that everyone has a domicile at any given time,
the statutes adopt the rule that a domicile is not lost until a new
one is acquired. Government Code section 244(c); Walters v. Weed,
supra, 45 Cal.3d 1, 7.
In the declaration submitted by Mr. Silva to this office,
he declares that his extended "family" (presumably parents and
siblings) has resided at 18574 11th Street in Huron since 1969.
Mr. Silva declares this address to be his residence. In 1981
Mr. Silva declares he married his wife Martha and that they spent
two to three nights a week at his residence in Huron. In 1983, Mr.
Silva states they purchased a home in the City of Kerman, but that
they still spent two to three nights a week at the residence in
Huron. Mr. Silva declares that since October 1983, he and his
family (presumably Martha and their two children) spent at least
one to three nights a week in the mobile home owned by his brother
in-law, Joe Garcia, located at 18574 11th Street, in the City of
Huron. Mr. Silva declares he considers the mobile home his
permanent domicile and that his driver's license and vehicle
registration lists the City of Huron as his residence. He further
declares he had continuously been a registered voter in the City of
Huron since 1973.
6. 88-791
Mr. Silva cites the case of Fenton v. Board of Directors,
supra, 156 Cal.App.3d 1107, in support of his position that he
meets the qualifications to hold office in the City of Huron.
Fenton involved the question of whether or not a member of the
board of directors (Fenton) of the Groveland Community Services
District was a resident of the district and qualified to hold
office. Fenton owned real property on Big Oak Road in Big Oak
Flat, California, which was within the boundaries of the Groveland
Community Services District. Fenton also owned real property in
Ferndale, California, which was approximately four miles outside
the boundaries of the district. Fenton claimed a homeowner's
exemption on the Ferndale property, listed her telephone number in
the phone directory with the Ferndale address, and lived almost
exclusively at the Ferndale address. (Id. at 1111-1112.) Fenton,
however, had been registered to vote at the Big Oak Flat property
address since 1950, with the exception of one year, 1977; regularly
visited the Big Oak Flat property varying from at least once a day
to a few times a month; considers the Big Oak Flat address as her
home, and uses that address on her driver's license, vehicle
registration, concealed weapons permit, and voter's registration.
(Id. at 1112.)
The court upheld the trial court's finding that although
Fenton had been physically residing outside of the district, she
was in fact "domiciled" within the district and was therefore
"residing" within the district under Government Code section 61200.
(Id. at 1117-1118.) The evidence established that when she moved
to the property within the district it became her domicile. Her
intent, thereafter, was manifested by her declarations at trial,
her actions, as manifested by her consistent listing of the
property address as her residence, and the fact that she
consistently returned to the property to check on its welfare, all
supported the conclusion that her domicile was in fact her
residence within the district. ( Id.) Also, the court found the
trial court did not err in considering the rebuttable presumption
of a domicile pursuant to Election Code section 211, relating to a
person who maintains homeowner's property tax exemption on dwelling
of one of his or her residences, in order to determine Fenton's
domicile. Although Fenton had previously applied for such an
exception on the property outside the district, the presumption was
not found to apply, because her driver's license listed a post
office box address within the district as her residence address.
The court held that substantial evidence supported the conclusion
that the post office box address was in fact the equivalent of a
residence address, considering the location was a rural area. (Id.
at 1115-1116.)
The Fenton case is indeed very similar to the Silva
situation. The burden of proving residence is on the party
alleging it. ( Catsiftes v. Catsiftes (1938) 29 Cal.App.2d 207,
7. 88-791
210.) In 8 Ops.Cal.Atty.Gen. 221 (1946), this office denied leave
to sue in quo warranto under similar factual circumstances, finding
that direct evidence of lack of intent to change residence,
including the proposed defendant's declaration of his intent,
outweighed circumstantial evidence connecting the proposed
defendant to another residence. The evidence as heretofore
presented appears to lead to the same conclusion. (See Fenton v.
Board of Directors, supra, 156 Cal.App.3d 1107, 1117.)
In the present application, there is evidence in the
Declaration of Silva to indicate substantial personal activity in
and about his Kerman home or "residence." However, there is also
significant personal activity associated with the Huron residence.
While the question of domicile is a mixed question of law and fact
(Fenton v. Board of Directors, supra, 156 Cal.App.3d at 1117), many
factors enter into the equation, including where an individual is
registered to vote and his or her address for mail (Ballf v. Public
Welfare Department (1957) 151 Cal.App.2d 784, 788-89), where tax
returns are filed (Johnson v. Johnson (1966) 245 Cal.App.2d 40,
44), where an automobile is registered (8 Ops.Cal.Atty.Gen. 221
(1946)), and where a homeowner's exemption or renter's credit is
taken (Elec. Code § 211). However, the critical element is that of
intent. While declarations of intent are significant, they are not
determinative. The acts must be examined as well. Mauro v. Dept.
of Mental Hygiene (1962) 207 Cal.App.2d 381, 389.
An examination of all the facts presented to us indicates
that Mr. Silva intended to maintain his domicile in the City of
Huron. The facts presented to us are not seriously in dispute.
In considering this application, "it is not the province
of the Attorney General to pass upon the issues in controversy or
to indicate whether the proposed plaintiff or defendant should, in
his opinion, prevail, but rather he is to determine whether there
exists a state of facts or question of law that should be
determined by a court in an action in Quo Warranto." (19
Ops.Cal.Atty.Gen. 87, 88 (1952).)
Here, as in the situation before us in 8
Ops.Cal.Atty.Gen. 221, supra, we have been provided the relevant
facts. While one party may emphasize one portion of the facts to
the exclusion of other facts, they appear not to be in dispute.
Here, as in our previous opinion, "[w]hen weighed against the
direct evidence produced by and on behalf of the proposed defendant
the showing made by the proponents is not persuasive . . ." to
establish that Mr. Silva is not a resident of the City of Huron (8
Ops.Cal.Atty.Gen. 221, 223; c.f. Fenton v. Board of Directors,
supra, 156 Cal.App.3d 1107).
8. 88-791
We are also mindful of the general principle that
ambiguities concerning the right to hold public office should be
resolved in favor of eligibility. Helena Rubenstein Internat. v.
Younger (1977) 71 Cal.App.3d 406, 418.
"We consider disqualification from public office a
significant civil disability. In California, the right
to hold public office has long been recognized as a
valuable right of citizenship. In 1869, in People v.
Washington, 36 Cal. 658, 662, our Supreme Court declared
that '[t]he elective franchise and the right to hold
public offices constitute the principal political rights
of citizens of the several States.' In Carter v. Com. on
Qualifications etc., 14 Cal.2d 179, 182 [93 P.2d 140],
the court pointed out: '[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 . . . ."
(Italics added.) More recently, the high court, citing
Carter, has termed the right to hold public office a
'fundamental right.' (Zeilenga v. Nelson, 4 Cal.3d 716,
720 [94 Cal.Rptr. 602, 484 P.2d 578]; Fort v. Civil
Service Commission, 61 Cal.2d 331, 335 [38 Cal.Rptr. 625,
392 P.2d 385].) Thus, any ambiguity in a constitutional
provision calling for forfeiture of an existing office
and disqualification from holding public office should be
resolved in favor of continued eligibility. . . ."
(Helena Rubenstein Internat. v. Younger, supra, 71
Cal.App.3d at 418.)
We believe that principle should also guide us in this
situation.
Historically, the Attorney General has not granted leave
to sue in quo warranto unless some public purpose would be served.
(67 Ops.Cal.Atty.Gen. 151, 153 (1984).) 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 purposed relator to sue in quo warranto.
(Id., at 154.) As stated in City of Campbell v. Mosk, supra, 197
Cal.App.2d 640, 650:
"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."
9. 88-791
However, as stated above, under the facts and
circumstances of this matter, the demonstrated intent of Mr. Silva
is to remain a resident of the City of Huron. We believe that the
authorization of this proceeding would not serve the public
interest. For the foregoing reasons, leave to sue is denied.
* * * * *
10. 88-791