Untitled California Attorney General Opinion ( 1992 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-1001
of :
: DECEMBER 9, 1992
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
This office has been requested by Bill Steele ("relator") to grant leave to sue in quo
warranto upon the following:
ISSUES OF FACT OR LAW
Has G. B. Tucker ("defendant") ceased to comply with the residence requirement for
representing the fifth supervisorial district, Nevada County Board of Supervisors?
DISPOSITION
No substantial issue of fact or law is presented in connection with defendant's compliance
with the residence requirement for representing the fifth supervisorial district, Nevada County Board
of Supervisors. It is determined that an action in quo warranto would not serve the public interest
and, therefore, leave to sue is DENIED.
MATERIAL FACTS
In November of 1988 defendant was elected to represent the fifth supervisorial district on
the Nevada County Board of Supervisors; his term expires in January of 1993. It is not disputed that
at the time of his election to, qualification for, assumption of, and entry upon his supervisorial
duties, he was a domiciliary of the fifth district.
Relator alleges that in January of 1990, defendant moved from his residence at 12225
Buckeye Road, Nevada City (within the fifth district) to 629 East Broad Street, Nevada City (outside
the fifth district). He further alleges that defendant has rented out his district residence. However,
there are no specific averments respecting the nature, extent, or term of the rental.
Defendant alleges that prior to January of 1990, he maintained his domicile and sole
residence within the fifth district at the Buckeye Road address; that he has maintained his domicile
as well as a place of residence at that address since January of 1990; that he has remained during the
night occasionally at both the Buckeye Road and Broad Street addresses; that his homeowner's
exemption and voter registration address are at the district residence; and that the district residence
is the place to which he intends to return whenever absent.
ANALYSIS
In deciding whether to grant leave to sue in the name of the People of the State of California,
we consider the following fundamental precepts which provide the basis for this analysis: leave will
be granted where there is a substantial question of law or fact which requires judicial resolution and
where the action in quo warranto would serve the overall public interest. (75 Ops.Cal.Atty.Gen. 10,
11-12 (1992).)
The relator's application for leave to sue is predicated upon the contention that continued
residence within a supervisorial district is required of a member of a county board of supervisors
during the entire term of office. In this regard, Government Code section 17701 provides in part:
"An office becomes vacant on the happening of any of the following events
before the expiration of the term:
". . . . . . . . . . . . . . . . . . . .
"(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 the officer was chosen or appointed. . . ."2
The issue to be addressed is whether continued residence within a supervisorial district is
"required by law" for purposes of section 1770. We have previously observed that in the
absence of statutory expression to the contrary, a residence requirement for election remains as a
condition to the continued right to hold office. (75 Ops.Cal.Atty.Gen. 26, 28 (1992); 73
Ops.Cal.Atty.Gen. 427, 429 (1990).) Looking at the governing statutes, we find in section 25040:
"Each member of the board of supervisors shall be elected by the district which he represents, and
not at large . . . ." Section 25041 states: ". . . each member shall have been a registered voter of the
district which he seeks to represent for at least 30 days immediately preceding the deadline for filing
nomination documents for the office of supervisor, and shall reside in the district during his
incumbency."3
While the terms "reside" in section 25041 and "inhabitant" in section 1770 have not been
statutorily defined, we have on prior occasion considered these terms in related contexts; generally,
these terms connote "domicile," i.e., the place where a person's habitation is fixed, at which the
person intends to remain, and to which the person intends to return whenever absent. (75
1
Unidentified section references herein are to the Government Code.
2
A member of a county board of supervisors is clearly the holder of a public office. (§
24000, subd. (o).)
3
The 30-day prefiling residential requirement of section 25041 was ruled constitutional in
Daniels v. Tergeson (1989) 211 Cal.App.3d 1204, 1210-1213. In Wenke v. Hitchcock (1972) 6
Cal.3d 746, the Supreme Court examined the candidate qualification requirements of sections
25040-25041 for purposes of adjustments to the boundaries of supervisorial districts in making them
equal in population under a redistricting plan.
2.
Ops.Cal.Atty.Gen. 26, 28 (1992).) Thus, domicile requires both the act of residence and the element
of intent. (73 Ops.Cal.Atty.Gen. 1
97, 208-211 (1990).)
In our view, relator's allegations that defendant has purchased or moved to a residence
outside the district is not probatively significant, since an individual may well have multiple
residences as that term is commonly understood and as distinguished from the concept of domicile.
(72 Ops.Cal.Atty.Gen. 15, 23 (1989).) Nor would the relator's allegations overcome the direct
evidence of defendant's expressed intent to remain in and return to the district residence whenever
absent, corroborated by documentary evidence of voter registration, driver's license, automobile
registration, tax returns, homeowner's exemption, telephone, and mailing addresses. Under similar
circumstances, we have consistently denied applications for leave to sue in quo warranto to test the
question of residence. (75 Ops.Cal.Atty.Gen. 26, 28 (1992); 73 Ops.Cal.Atty.Gen. 427, 430-431
(1990); see Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1117-1118.)
PUBLIC INTEREST
Moreover, it is well settled that the mere existence of a justiciable issue does not require the
Attorney General to grant leave to sue in quo warranto. (City of Campbell v. Mosk (1961) 197
Cal.App.2d 640, 650; 74 Ops.Cal.Atty.Gen. 31, 32 (1991).) Consideration must also be given
concerning whether maintaining an action in quo warranto in the circumstances presented would be
consistent with the public interest.
Here, the defendant's term of office, to which he was not reelected, expires on January 5,
1993. Only weeks remain of a four-year term. While it cannot be accurately predicted how long
it would take for the proposed action to be filed, heard, and resolved, even in the absence of an
appeal, it is at least reasonably probable that the issue would become moot prior to judicial
resolution. (See 75 Ops.Cal.Atty.Gen. 10, 14 (1992).)
In this regard, our resolution in 73 Ops.Cal.Atty.Gen. 197, 212 (1990), where only four
months remained, is distinguished. There, the public agency declared an incumbent's office vacant
and appointed a successor. We appropriately cited People v. Brite (1880) 55 Cal. 79, People v.
Fleming (1893) 100 Cal. 537, and Klose v. Superior Court (1950) 96 Cal.App.2d 913, for the
proposition that while the failure to maintain a required residence results, without prior adjudication,
in a vacancy to which a successor may be appointed, an incumbent is nevertheless entitled to a
hearing prior to a conclusive determination of vacancy. Thus, although the cited cases did not
involve brief remaining terms, the governing considerations there were significantly different. We
are not concerned here, on the other hand, with a dispossession of office.
When considered in conjunction with the public interest in eligibility to hold public office
and the resolution of ambiguities in support of that interest (Helena Rubenstein Internat. v. Younger
(1977) 71 Cal.App.3d 406, 418; 74 Ops.Cal.Atty.Gen. 26, 29-30 (1991)), we perceive minimal
benefit in compelling defendant herein to respond in a judicial proceeding based upon the showing
presented and in view of the circumstances referred to above.
The proposed action would not be in the public interest, and leave to sue is therefore denied.
*****
3.