California Attorney General Opinion 23-901 ( 2024 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 23-901
of :
: May 22, 2024
ROB BONTA :
Attorney General :
:
SUSAN DUNCAN LEE :
Deputy Attorney General :
QUESTION PRESENTED AND CONCLUSION
GOVERNMENT WATCHDOGS, a California non-profit public benefit
corporation, has applied to this office for leave to sue proposed defendant PABLO
BRYANT in quo warranto to remove him from his seat on the Temecula-Elsinore-Anza-
Murrieta Resource Conservation District’s Board of Directors.
We conclude that there is no substantial issue of law or fact as to whether Director
Bryant is lawfully holding office. We further conclude that the public interest would not
be served by allowing the proposed quo warranto action to proceed. Consequently, the
application for leave to sue is DENIED. 1
1
As filed, the application sought the removal of both Director Bryant and former
Director Jeffrey McClenahan, who vacated his seat on the District Board on January 12,
2024, while this application was pending. Given this circumstance, the request to seek
former Director McClenahan’s removal from the Board is denied as moot.
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BACKGROUND
The Temecula-Elsinore-Anza-Murrieta Resource Conservation District (District)
is a resource conservation district governed by Public Resources Code division 9, chapter
3 (sections 9151-9500). Within its boundaries, a resource conservation district may be
given a wide range of responsibilities for preserving local natural resources including
soil, water, forests, lands, and plant and wildlife populations, as well as protecting these
resources from natural and man-made disasters. 2
The District is one of several resource conservation districts within Riverside
County, and covers approximately 790 square miles surrounding the city of Temecula,
including Lake Elsinore, Anza, and Murrieta. 3 The District is governed by a board of
five directors, who are appointed to four-year terms by the Riverside County Board of
Supervisors. 4
Public Resources Code section 9314 sets out requirements for appointing directors
to a resource conservation district. As relevant here, section 9314 provides:
The board of supervisors shall appoint directors . . . from those candidates
who have filed an application with the board of supervisors, as prescribed
by the board of supervisors. If the directors are to be appointed, a notice of
election shall not be published, but a notice of vacancy shall be posted
pursuant to Section 54974 of the Government Code. 5
Pursuant to section 9314, “The expiration of the term of any director does not
constitute a vacancy, and the director shall hold office until his or her successor has
qualified.” 6 As for the timing of appointments, section 9314 provides that, “If the board
of supervisors does not conduct interviews of potential candidates or make an
2
Pub. Res. Code, § 9151.
3
District website, https://www.teamrcd.org/about-us (as of May 20, 2024).
4
Pub. Res. Code, §§ 9314, 9316; Riverside Co. Ord. No. 662, available at
https://rivco.org/county-ordinances (as of May 20, 2024).
5
Pub. Resources Code, § 9314, subd. (b)(1); see Gov. Code, § 54974, subd. (a) (“a
special vacancy notice shall be posted in the office of the clerk of the local agency, on
either the local agency’s Internet Web site or at the library designated pursuant to Section
54973, and in other places as directed by the legislative body”).
6
Pub. Res. Code, § 9314, subd. (a).
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appointment within 60 days after the expiration of the term, the board of directors may
make the appointment.” 7
Riverside County Ordinance No. 662 governs the appointment of conservation
district directors in Riverside County. As relevant here, a person is eligible for
appointment under the ordinance if the person is “a designated agent of a resident
landowner within the District.” 8 With respect to the appointment process, Ordinance
No. 662 states that applications for appointment to the board are to be made on a
designated form provided by the Registrar of Voters, 9 and that “[c]ompleted applications
are to be filed with the Registrar of Voters by the applicable filing deadline date.” 10
We turn now to the timeline of the events at issue:
On February 8, 2022, Pablo Bryant was appointed to fill a vacant seat on the
District Board for the remaining months of a four-year term ending in November 2022.
On September 6, 2022—approximately two months before that earlier term
ended—Bryant filed his application for re-appointment to the Board for a four-year term,
running from 2023 to 2026. It is Bryant’s application for re-appointment that is
challenged here.
Bryant is a resident of San Diego County. His re-appointment application
indicated that he was qualified to serve on the Board as the agent of Temecula resident
and land owner Raymond Stann. In support of his application, Bryant submitted a letter
from Stann, dated August 6, 2022, which verified that Stann was a resident of the District
7
Pub. Res. Code, § 9314, subd. (b)(4).
8
Riverside Co. Ord. No. 662, § 2(c) states:
(1) A Director shall be a registered voter in the state.
(2) A Director shall:
(a) reside within the District and either own real property in the District or
alternatively have served for two years or more as an associate director
providing advisory or other assistance to the Board of Directors, or
(b) be a designated agent of a resident landowner within the District.
(Emphasis in original.) These provisions mirror the qualification provisions for
conservation board members set forth in Public Resources Code section 9352.
9
Riverside Co. Ord. No. 662, § (2)(b) (“The application required to be filed by
candidates shall be the Declaration of Candidacy form . . . as provided by the Registrar of
Voters.”)
10
Riverside Co. Ord. No. 662, §§ (1), (2)(b).
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and an owner of real property within the District on Calle Fuente in the City of Temecula,
and requested that Bryant be appointed to the District Board as his agent.
On September 6, 2022, the same day that Bryant filed his re-appointment
application, a deed was recorded in Riverside County showing Stann’s sale and transfer
of the Calle Fuente property to a new owner.
On September 7, 2022, a deed was recorded in Riverside County showing Stann’s
purchase of another property—also located within the District—on Calle Camellia in the
City of Temecula.
On November 7, 2022, the Riverside County Registrar of Voters filed a Notice of
Vacancy for seats on the District board, pursuant to Ordinance No. 662, section 2(b).
The Registrar of Voter’s Notice stated that regular terms for director positions were
coming open on the five resource conservation district boards within Riverside County,
including the District at issue here. The Notice of Vacancy stated prominently:
“APPLICATION FILING PERIOD: Commencing Nov. 7, 2022, ending Nov. 22, 2022,
at 5:00 p.m.”
On January 9, 2023, Board of Supervisors staff became aware that the Calle
Fuente address submitted on Bryant’s application was no longer accurate.
On January 11, 2023 (approximately seven weeks after the noticed application
period had closed), Bryant provided the Board of Supervisors with Stann’s new Calle
Camellia address, along with a letter from Stann confirming his ownership of the Calle
Camellia property and requesting Bryant appointment to the District Board as his agent.
On January 12, 2023, the Riverside County Assessor’s Office confirmed that
Stann was the owner of the Calle Camellia property.
On January 24, 2023, the Board of Supervisors appointed Bryant to a seat on the
District Board.
Government Watchdogs now applies for our permission to file a quo warranto
action against Bryant to remove him from his seat on the District Board on the ground
that the Board of Supervisors—by accepting Bryant’s early submission and late
correction to his application—failed to observe its own rules in the process leading up to
Bryant’s appointment, rendering that appointment void as a result.
In opposition, the Board of Supervisors contends that all applicable statutes and
ordinances were followed, and that any irregularities in the process were harmless, and
therefore do not void Bryant’s appointment.
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ANALYSIS
Quo warranto is a civil action used, among other purposes, to challenge an
incumbent public official’s right to hold a given public office. 11 When a private party
seeks to pursue a quo warranto action in superior court, as here, that party must first
obtain the Attorney General’s permission to do so. In determining whether to grant
consent, we do not attempt to resolve the merits of the controversy. Rather, we consider
(1) whether quo warranto is an available and appropriate remedy; (2) whether the
application raises a substantial issue of law or fact that warrants judicial resolution; and
(3) whether authorizing the quo warranto action will serve the public interest. 12 We grant
leave to sue where all three of the above factors are present, but in this case, we conclude
that the second and third factors are lacking. We therefore deny leave to sue.
1. Availability of Quo Warranto Remedy
Section 803 of the Code of Civil Procedure authorizes an action in the nature of
quo warranto to remove a person who unlawfully holds a public office. 13 Membership on
the governing board of a resources conservation district is a public office within the
meaning of section 803. 14 The allegations and arguments advanced by Government
Watchdogs here, if accepted, could support a conclusion that Bryant is unlawfully
holding public office. 15 So quo warranto is—at least potentially—an available and
appropriate remedy here.
We note as well that Government Watchdogs alleges violations of state and
federal due process and various ethical violations by the Riverside County Board of
Supervisors and Registrar of Voters during the appointment process, as well as
misconduct in office by proposed defendant Bryant. To the extent these allegations seek
redress against third parties, or against Bryant for his official conduct, they lie outside the
proper bounds of a quo warranto action. 16 Removal of the incumbent official from office
11
Code Civ. Proc., § 803; Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221,
1225; 76 Ops.Cal.Atty.Gen. 157, 162-163 (1993).
12
Rando v. Harris (2014) 228 Cal.App.4th 868, 879; 72 Ops.Cal.Atty.Gen. 15, 20
(1989).
13
See Nicolopulos v. City of Lawndale, supra, 91 Cal.App.4th at p. 1225.
14
84 Ops.Cal.Atty.Gen. 135, 136 (2001).
15
See 85 Ops.Cal.Atty.Gen. 60, 61 (2002) (water district director is public office).
16
In any event, as discussed below, we conclude that the present quo warranto
application fails to demonstrate how the consideration of Bryant’s early application, or
his later update to that application to reflect the address of Stann’s newly-purchased
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based on the incumbent’s ineligibility to hold it, and related monetary penalties, are the
only authorized quo warranto remedies where the lawfulness of holding a public office is
challenged. 17 In other words, the sole cognizable issue here is whether Bryant is lawfully
holding his seat on the District Board.
2. No Substantial Issues Regarding the Lawfulness of Bryant’s Appointment
Government Watchdogs argues that the application period (November 7, 2022 to
November 22, 2022) displayed on the Registrar of Voters’ Notice of Vacancy was
mandatory, and that Bryant should have been disqualified for appointment because he
submitted his application before the opening of this two-week period. Bryant contends
that his early application was properly considered along with all of the other applications
that were received by the noticed closing date of November 22, 2022, at 5:00 p.m. He
also argues that, regardless of the Registrar’s Notice, the Board of Supervisors had the
power to appoint any qualified candidate until at least 60 days after the previous term
expired. 18
Additionally, Government Watchdogs alleges that Bryant’s application reflected
an outdated address for his sponsor, Mr. Stann, which was not corrected until after the
two-week period closed. In response, Bryant argues that he was properly qualified
throughout the relevant period, and maintains that the late correction of Stann’s address
on his application was harmless because the Board properly ascertained Bryant’s
qualifications before his timely appointment.
Our review of the applicable laws persuades us that the early application and late
correction were minor irregularities at worst, inconsequential to the process, and
insufficient to void Bryant’s appointment. 19 Appointments to resource conservation
directorships are governed by Public Resources Code section 9314, which states: “The
property, somehow rendered the appointment process unfair to other applicants.
17
See Code Civ. Proc., §§ 803, 807, 809.
18
See Riverside Co. Ord. No. 662, § 2(b) (“[E]xpiration of a director’s regular term of
office shall occur on the last Friday in the month of November”); see also Pub. Res.
Code, § 9314, subd. (b)(4) (“If the board of supervisors does not conduct interviews of
potential candidates or make an appointment within 60 days after the expiration of the
term, the board of directors may make the appointment.”).
19
See 3 McQuillin, Mun. Corps., § 12:138 (3d ed.) (general rule that method of
appointment must conform to applicable law is subject to exception that harmless errors
may frequently be disregarded); 62 C.J.S. (2024) Municipal Corporations, § 428 (The
appointment is to be made or the election held in the manner prescribed by constitution,
statute, charter, or ordinance).
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board of supervisors shall appoint directors . . . from those candidates who have filed an
application with the board of supervisors, as prescribed by the board of supervisors.” 20
In this case, the Riverside County Board of Supervisors has prescribed, via Ordinance
No. 662, that “Completed applications are to be filed with the Registrar of Voters by the
applicable filing deadline date.” 21 There is no dispute that the law was satisfied in this
respect. The facts before us demonstrate that Bryant filed a completed application “by
the applicable filing deadline date,” which was November 22, 2022, as listed on the
Notice of Vacancy that was posted by the Registrar of Voters.
The claim put forth here is not that Bryant’s application was too late, but that it
was too early. That claim relies on an assumption that the Notice of Vacancy created a
two-week window (from November 7 to November 22, 2022) within which applications
must be filed in order to be validly considered. The applicable law does not support that
assumption. As set forth above, the Public Resources Code establishes a requirement that
a board of supervisors “shall appoint directors . . . from those candidates who have filed
an application with the board of supervisors, as prescribed by the board of supervisors.”
Here, what the Riverside Board of Supervisors has “prescribed” is that applications must
be filed “by the applicable filing deadline date.” 22 The Board of Supervisors has not
prescribed any opening date for applications; that was imposed by the Riverside County
Registrar of Voters, not by the Board of Supervisors. Nothing in state or county law
required an opening date to be set for such applications. 23 It follows that Bryant did not
violate any law by filing his application early.
As to the alleged lateness of Bryant’s correction to his application, we perceive
that to be inconsequential as well. Although Bryant amended his application later in the
process to show Stann’s new address, the record demonstrates that there was no
deficiency in Bryant’s eligibility for appointment. To the contrary, the record
demonstrates that Stann was a resident landowner at all relevant times; that Bryant was
designated as Stann’s agent at all relevant times; and that Bryant’s qualification as
Stann’s agent was officially ascertained and confirmed before Bryant was appointed. We
do not perceive that a late correction to Bryant’s completed application harmed the
process or the other applicants in any way, and we decline the invitation to construe
20
Pub. Res. Code, § 9314, subd. (b)(1) (emphasis added).
21
Riverside Co. Ord. No. 662, § (2)(b) (emphasis added).
22
Riverside Co. Ord. No. 662, § (2)(b).
23
We do not mean to suggest as a general proposition that an application period, for
appointment to public office or otherwise, may not set firm and legally binding opening
and closing dates. We merely conclude that the laws applying specifically to this case do
not provide for a mandatory opening date that would disqualify early filings such as the
one at issue here.
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Bryant’s corrected application as a new application for appointment that was improperly
submitted and considered after the submission deadline.
Government Watchdogs attempts to demonstrate harm by submitting various
declarations describing the experiences of other applicants who assert that they were
qualified for the appointment. In our view, however, none of these proffered declarations
offers any evidence supporting an inference that that the Board of Supervisors’
consideration of Bryant’s early application somehow rendered the appointment process
unfair for those other applicants.
In assessing the present claims, we are mindful that California law has long
recognized the principle that the right to hold public office is a fundamental right of
citizenship, 24 which may not be curtailed unless the law clearly provides for it. 25 Any
ambiguity in a law affecting that right must be resolved in favor of eligibility to hold
office. 26 In this case, there is no law prohibiting the submission of an appointment
application several weeks early, nor does the law clearly prohibit submitting a correction
to a completed application. To the extent that these gaps in the law leave room for
ambiguity about the permissibility of Bryant’s early application and subsequent
correction of that application in this case, we are bound to resolve it in favor of the office
holder.
Even where an issue presented for our consideration is debatable, the Attorney
General has “considerable discretion” in determining whether a particular claim is
sufficiently substantial to warrant the initiation of a quo warranto lawsuit and the
resulting expenditure of judicial resources. 27 We conclude that Government Watchdogs
has not raised substantial issues of law and fact as to whether the alleged defects in
Bryant’s application was sufficient to invalidate his appointment to the District Board.
24
Zeilenga v. Nelson (1971) 4 Cal.3d 716, 720; Woo v. Superior Court (2000)
83 Cal.App.4th 967, 977.
25
Carter v. Com. on Qualifications ,etc. (1939) 14 Cal.2d 179, 182; Helena Rubenstein
Internat. v. Younger (1977) 71 Cal.App.3d 406, 418; see Woo v. Superior Court, supra,
83 Cal.App.4th at p. 977.
26
Carter v. Com. on Qualifications ,etc., supra, 14 Cal.2d at p. 182; Helena Rubenstein
Internat. v. Younger, supra, 71 Cal.App.3d at p. 418; see Woo v. Superior Court, supra,
83 Cal.App.4th at p. 977.
27
106 Ops.Cal.Atty.Gen. 1, 9 (2023); see Rando v. Harris, supra, 228 Cal.App.4th at
p. 875.
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3. No Public Purpose Supports Granting Leave to Sue
In the absence of a substantial question of fact or law requiring judicial resolution,
we find there is no public purpose sufficient to warrant an action in quo warranto. 28
For all the reasons stated above, leave to sue in quo warranto is DENIED.
28
See Rando v. Harris, supra, 228 Cal.App.4th at p. 882.
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