Untitled California Attorney General Opinion ( 1999 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
BILL LOCKYER
Attorney General
:
OPINION : No. 99-104
:
of : April 15, 1999
:
BILL LOCKYER :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
GUY B. MEYERS has requested this office to grant leave to sue in quo
warranto upon the following:
ISSUES OF FACT OR LAW
Is Lorraine Rollins unlawfully occupying the office of director of the
Calaveras County Water District for the Fifth District?
CONCLUSION
Whether Lorraine Rollins is unlawfully occupying the office of director of the
Calaveras County Water District for the Fifth District presents substantial issues of fact and
law; it is in the public interest to grant leave to sue so that a judicial resolution of the issues
presented may be obtained.
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PARTIES
GUY B. MEYERS (“relator”) seeks a judicial determination of the validity of
the actions taken by the directors of the Calaveras County Water District (“CCWD”) on
December 16, 1998, declaring his office as director for the Fifth District to be vacant and
replacing him on February 10, 1999, by appointing Lorraine Rollins (“defendant”).
MATERIAL FACTS
On November 7, 1995, relator was elected to a four-year term as director of
the CCWD for the Fifth District. On December 16, 1998, the directors of the CCWD voted
to declare the office of director for the Fifth District to be vacant upon the ground that
relator was no longer a resident of or domiciled in the Fifth District. On February 10, 1999,
the directors appointed defendant to fill the declared vacancy in the office of the Fifth
District.
Relator asserts that he was a resident of the Fifth District as of November 7,
1995, that he continues to be a resident of the Fifth District, and that it is his intent to remain
a resident of the Fifth District. He declares that his driver’s license bears a post office box
mailing address in Valley Springs, Calaveras County, and that his vehicle registration shows
the same mailing address. He further declares that his concealed weapons permit gives his
address at a location on St. Andrews Street in Valley Springs and that he has received utility
bills for that address. He further states that he is registered to vote in the Fifth District.
Relator declares that he owns a business and “several pieces of real property in the Fifth
District.”
The Directors of the CCWD have presented evidence supporting their claim
that relator’s residence is located in the City of Lodi, San Joaquin County, including both
a 1997 grant deed for the property and a trust deed executed in 1998 to secure a loan listing
relator’s residence as the Lodi property. Also presented are reports of witness interviews
concerning relator’s presence at the Lodi property and his absence from his claimed
residence in Calaveras County.
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ANALYSIS
The first issue to be resolved is whether relator’s continued residence within
the Fifth District is required during his term of office as a member of the CCWD’s
governing board. Under the County Water District Law (Wat. Code, §§ 30000-33901), a
director for the Fifth District of the CCWD must be a “voter” within the Fifth District at the
time of his or her election to the board (Wat. Code, § 30735). Accordingly, he or she must
be a “resident” of the Fifth District (see Elec. Code, §§ 321, 359), which means that within
the Fifth District must be that single “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” (Elec. Code, § 349, subd. (b); see 79
Ops.Cal.Atty.Gen. 243 (1996)).
We have previously determined that in the absence of any 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).) Here, Water Code section 30508
provides a slight variation upon this requirement:
“If a director’s place of residence, as defined in Section 244 of the
Government Code, is moved outside district boundaries or outside the
boundaries of that director’s division where elected from a division, and if
within 180 days of the move or of the effective date of this section the director
fails to reestablish a place of residence within the district or within the
director’s division, it shall be presumed that a permanent change of residence
has occurred and that a vacancy exists on the board of directors pursuant to
Section 1770 of the Government Code.”
Government Code section 244 in turn provides:
“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.
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“(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.”
Government Code section 1770 additionally states in part:
“ An office becomes vacant on the happening of any of the following
events before the expiration of the term:
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“(e) His or her 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, or within which
the duties of his or her office are required to be discharged. . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
In 81 Ops.Cal.Atty.Gen. 94, 97 (1998), we recently analyzed the meaning of
“residence” as that term is used in Government Code section 1770:
“. . . ‘Residence’ for purposes of Government Code section 1770
means ‘domicile,’ a place of physical presence coupled with an intention to
make that place one’s permanent home; a person may only have one domicile
at any given time. (See Walters v. Weed (1988) 45 Cal. 3d 1, 7; Smith v. Smith
(1955) 45 Cal. 2d 235, 239; DeMiglio v. Mashore (1992) 4 Cal. App. 4th 1260,
1268; Fenton v. Board of Directors (1984) 156 Cal. App. 3d 1107, 1113; 79
Ops.Cal.Atty.Gen. 21, 25-26 (1996); 73 Ops.Cal.Atty.Gen. 197, 208-209
(1990); 72 Ops.Cal.Atty.Gen. 8, 11 (1989).)”
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It is readily apparent that substantial questions of fact and law exist as to whether relator’s
place of residence complies with the requirements of Water Code section 30508. If it does
comply, he has the right to regain his office through quo warranto proceedings.
In 79 Ops.Cal.Atty.Gen. 21 (1996), we considered whether a quo warranto
action should be filed where the mayor of the City of Parlier had been removed from office
by the city council. The council declared the mayor’s office vacant on the ground that he
no longer resided in the city and appointed a replacement. We granted the mayor’s
application to sue in quo warranto to determine whether he had been unlawfully replaced.
We stated:
“Applications for leave to sue in quo warranto normally involve a
direct challenge to the right of a person to hold public office, usually on the
ground that he or she has failed to meet the required qualifications for the
particular office, such as a residency requirement. (73 Ops.Cal.Atty.Gen.,
supra, 200.) Here, the challenge is somewhat different in that it does not
concern the qualifications of defendant, but rather those of the relator. Was
relator subject to an ongoing residency requirement in holding the office of
Mayor of Parlier, and if so, did he fail to maintain his status as a legal resident
of the city?
“In 73 Ops.Cal.Atty.Gen. 197, supra, we determined that a quo
warranto action was the proper remedy under circumstances parallel to those
presented here. There a school personnel commissioner was removed from
office by a school board for failing to maintain his residence within the school
district. We granted leave to sue, since the current commissioner’s title to the
office was dependent upon the legitimacy of the board’s prior determination
that the office had become vacant. Our analysis relied primarily on the case of
Klose v. Superior Court (1950) 96 Cal. App. 2d 913. In Klose, the court stated:
“ ‘. . . where [an] appointing power considers a vacancy in office to
exist, it may appoint a successor, without proceedings to declare the vacancy
to exist, and that when it does so appoint[,] the official succeeded may by quo
warranto question whether there was any vacancy.’ (Id., at p. 917.)” (Id., at
pp. 22-23.)
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PUBLIC INTEREST
As a general rule, we have viewed the existence of a substantial question of
fact or law as presenting a sufficient “public purpose” to warrant the granting of leave to
sue. Accordingly, leave will be denied only in the presence of other overriding
consideration. (81 Ops.Cal.Atty.Gen. 94, 98 (1998).) We find no countervailing
considerations herein. Whether relator’s residence within the Fifth District, both past and
present, satisfies the requirements of Water Code section 30508 is a matter for judicial
resolution.
Accordingly, the application for leave to sue in quo warranto is GRANTED.
*****
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