Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General
_________________________
:
OPINION : No. 19-1201
:
of : August 24, 2020
:
XAVIER BECERRA :
Attorney General :
:
MANUEL M. MEDEIROS :
Deputy Attorney General :
:
________________________________________________________________________
JEREMIAH BROSOWSKE (Relator) requests leave to sue Defendants CITY OF
HESPERIA and BRIGIT BENNINGTON in quo warranto to remove Defendant
Bennington from the District 4 seat on the Hesperia City Council, on the ground that
Relator is lawfully entitled to hold that seat, but was wrongfully unseated by the City
Council due to an alleged ineligibility to hold the office.
CONCLUSION
Relator raises substantial issues of fact and law as to his eligibility to hold the
District 4 seat on the Hesperia City Council and, therefore, as to Defendant Bennington’s
present right to hold that seat. Because it is in the public interest to have those issues
judicially resolved, Relator’s request for leave to sue is GRANTED.
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ANALYSIS
Relator Jeremiah Brosowske contends that he was lawfully elected to the District 4
seat on the Hesperia City Council, but that he was then unlawfully ousted from that seat by
the Council in September 2019. The Council found that a vacancy existed in the office
because, in its assessment, Relator was not and had not been a registered voter and resident
of Hesperia District 4 at all times related to his office-holding, as required by statute and
county ordinance. The Council thereafter appointed Defendant Brigit Bennington to
replace Relator as the District 4 representative. Relator now seeks leave to sue Bennington
and the City of Hesperia in quo warranto. He seeks an order removing Bennington from
the disputed seat and restoring him to that office, as well as other relief. For the reasons
stated below, we GRANT Relator’s request to proceed in quo warranto.
Background
On May 23, 2018, Hesperia City Council member (and Mayor) Russ Blewett died,
leaving a vacancy on the Council. Relator decided to run for Mr. Blewett’s former seat,
which represented the city’s District 4.1 Relator asserts that, shortly after the vacancy
opened, he moved from his home in Apple Valley to the home of a friend, William Jensen,
at 8075 E Avenue, which is located in District 4 of the City of Hesperia. On July 11, 2018,
the Council appointed Relator to fill the District 4 seat, pending the election later in
November.
On July 25, 2018, Relator obtained his nomination papers from the city election
official to run for the District 4 seat.2 This date is significant because, under the
Government Code and a Hesperia city ordinance, a candidate for the District 4 seat on the
City Council must be a resident and registered voter of District 4, as of the date on which
he or she obtains nomination papers for election.3 At the November 6, 2018 election,
Relator was elected to a four-year term in the District 4 seat, defeating Bennington for the
position.
1
In June 2017, the City Council voted to establish a by-district election system and a
sequence of elections to begin in November 2018. Five districts were created; the council
members representing Districts 2, 3, and 4 were elected at the November 2018 election.
(Hesperia Ordinance No. 2017-09; see Hesperia Mun. Code, § 1.09.020.)
2
See Elec. Code, § 10227 (nomination papers).
3
Gov. Code, §§ 34882, 36502, subd. (a); Hesperia Mun. Code § 1.09.020(B).
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Some five months later, at the April 2019 City Council meeting, William Jensen—
with whom Relator claimed to reside at an address within District 4—informed the Council
that Relator, in fact, never did reside with him and therefore had not been a resident of
District 4 on July 25, 2018.4 At the August 2019 Council meeting, Councilmember
Cameron Gregg requested that the agenda for the September meeting include consideration
of appointing a special counsel to investigate “potential felony voter fraud” by Relator.
Councilmember William Holland requested that the September meeting agenda also
include a vote to declare Relator’s seat vacant.
On September 3, 2019, the date of a scheduled City Council meeting, Relator filed
a preemptive action in San Bernardino County Superior Court, in which he sought an ex
parte order that would have prohibited the Council from declaring the District 4 seat vacant,
and required the Council to proceed through an action in quo warranto if the Council
desired to remove him from office.5 The trial court denied the requested relief,6 and the
Council meeting proceeded as scheduled. At the meeting, the Council (by a 3-2 vote)
appointed a special counsel to investigate Relator’s residency and, thereafter, declared the
District 4 seat vacant. On October 15, 2019, the Council appointed Bennington to serve as
the District 4 representative until the next general municipal election on November 3, 2020.
The person elected at that time will hold office for the remainder of the term.7
4
Defendants submitted a declaration from William Jensen in their opposition to
Relator’s application, in which Jensen attests that Relator, in fact, never resided at his
home, “though we had planned for him to do so.” Jensen acknowledged, nevertheless, that
he previously signed a document confirming that Relator resided with him, in order to help
Relator find his own place within the district. Jensen also acknowledged that he sometimes
“sarcastically” referred to Relator as his “roommate.” In May 2019, Jensen submitted an
“Election Voter Complaint Form” to the Secretary of State, alleging possible voter fraud
on the part of Relator.
Brosowske v. Hesperia City Council, San Bernardino County Superior Court No.
5
CIVDS1926015.
6
The superior court’s minute order from the hearing on Relator’s ex parte motion states,
“Ex parte application argued. After argument, court finds: ex parte orders denied.”
According to Relator’s characterization of the ruling, “With reasoning influenced by
separation of powers and Klose v. Superior Court [(1950) 96 Cal.App.2d 913, and cited
below], the Court declined to interfere in a future council action. The Court also noted that
Proposed Relator had not yet been removed and might not be removed, suggesting that
Proposed Relator’s request was premature.” Defendants, whose counsel was also present
at the hearing, do not dispute Relator’s characterization.
7
Gov. Code, § 36512, subd. (b)(2)(A).
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Relator now seeks leave to sue in quo warranto to unseat Bennington on the ground
that Relator’s removal, and therefore Bennington’s appointment, were unlawful.
The Quo Warranto remedy
“Quo warranto,” literally meaning “by what authority,” was a writ at common law,
by which the Crown instituted a formal inquiry into whether a subject had the right to hold
public office.8 The remedy has evolved to become a judicial action brought by the
sovereign people of the state, through their attorney general, to try a public officer’s right
to hold the public office. In California, the remedy is currently codified in section 803 of
the Code of Civil Procedure.9
An individual (known as the “relator”)10 who seeks to bring a quo warranto action
must first obtain the consent of the Attorney General,11 and the decision whether to grant
that consent (or “leave to sue”) lies within the Attorney General’s broad discretion.12 In
deciding whether to grant leave to sue, we do not resolve the merits of the dispute itself,
but only “decide whether the application presents substantial issues of fact or law that
warrant judicial resolution, and whether granting the application will serve the public
interest.”13 In the circumstances presented by this case, we must also consider as a
8
Rando v. Harris (2014) 228 Cal.App.4th 868, 875 (Rando); 101 Ops.Cal.Atty.Gen.
76, 77 (2018).
9
The statute provides: “An action may be brought by the attorney-general, in the name
of the people of this state, upon his own information, or upon a complaint of a private party,
against any person who usurps, intrudes into, or unlawfully holds or exercises any public
office, civil or military, or any franchise, or against any corporation, either de jure or de
facto, which usurps, intrudes into, or unlawfully holds or exercises any franchise, within
this state.” (Code Civ. Proc., § 803.)
10
Quo warranto actions are brought by the Attorney General, in the name of the People
of the State of California, “on relation” (ex rel.) of a private person. (See People ex rel.
Leavitt v. Bass (1910) 15 Cal.App. 62, 66 [“Leavitt is merely the relator—the informant”];
People ex rel. Goodell v. Garrett (1925) 72 Cal.App. 452, 455; 73 Ops.Cal.Atty.Gen. 197,
201 (1990) [relator “acts merely as informant”]; 35 Ops.Cal.Atty.Gen. 198, 199 (1960)
[same].)
11
Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, 1228-1229
(Nicolopulos).
12
Rando, supra, 228 Cal.App.4th at pp. 877-878.
Rando, supra, 228 Cal.App.4th at p. 879; 101 Ops.Cal.Atty.Gen. 16, 17 (2018); 87
13
Ops.Cal.Atty.Gen. 30, 31 (2004) (Attorney General makes no final judgment).
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preliminary matter whether quo warranto is an appropriate remedy.14
Quo Warranto is an appropriate remedy here
For quo warranto to be an available remedy, the defendant must be holding a public
office, and the relator must be challenging the defendant’s right to hold that office.15 The
position of city council member is a public office for quo warranto purposes.16
Commonly, the relator in a quo warranto proceeding challenges the qualifications
of the defendant officeholder, for example, by alleging defendant’s ineligibility to hold the
office because of a nonqualifying residence.17 Here, however, although Relator challenges
Bennington’s right to hold the District 4 seat, he does not challenge her qualifications for
the office. Rather, he disputes the existence of the vacancy in the District 4 seat that she
was appointed to fill. Stated otherwise, in this context it is Relator’s eligibility, rather than
Defendant’s, that is ultimately at issue. Despite its unusual framing, this circumstance has
been found to be a proper use of a quo warranto proceeding.
In Klose v. Superior Court,18 for example, the Court of Appeal, construing the
California Supreme Court’s opinion in People v. Brite,19 stated that “where the appointing
power considers a vacancy 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.”20 Accordingly, where the
existence of a vacancy is summarily declared but disputed, as it was here, the ousted officer
is assured that “he may always have his day in court before it can be conclusively adjudged
against him that the office was vacant at the time the [successor’s] appointment was
made.”21
14
102 Ops.Cal.Atty.Gen. 20, 22 (2019); 101 Ops.Cal.Atty.Gen. 24, 27-28 (2018).
15
102 Ops.Cal.Atty.Gen., supra, at p. 22; 96 Ops.Cal.Atty.Gen. 36, 41 (2013).
16
99 Ops.Cal.Atty.Gen. 74, 76 (2016); 87 Ops.Cal.Atty.Gen., supra, at p. 31.
17
See, e.g., 102 Ops.Cal.Atty.Gen. 56 (2019) (application to sue incumbent city
councilmember based on residency); 101 Ops.Cal.Atty.Gen. 70 (2018); 101
Ops.Cal.Atty.Gen. 42 (2018); 99 Ops.Cal.Atty.Gen. 74, supra.
18
Klose v. Superior Court (1950) 96 Cal.App.2d 913 (Klose).
19
People ex rel. Tracy v. Brite (1880) 55 Cal. 79.
20
Klose, supra, at p. 917.
Klose, supra, 96 Cal.App.2d at p. 918, quoting People ex rel. Fleming v. Shorb (1893)
21
100 Cal. 537, 540-541; see also Nicolopolus, supra, 91 Cal.App.4th at p. 1228 (no due
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Based on Klose, we have previously granted an elected mayor leave to sue in quo
warranto for the purpose of testing the right of his appointed successor to the office, which
had been declared vacant on residency grounds.22 Inasmuch as the material facts here are
indistinguishable from those cases, we conclude that quo warranto is an appropriate remedy
to test Bennington’s right to hold the District 4 seat based on the Council’s summary
declaration of a vacancy that she was appointed to fill.
Relator raises substantial issues of law and fact concerning his eligibility to hold
the District 4 seat on the Hesperia City Council
As we explained above, in deciding whether to grant leave to sue, we do not resolve
the merits of the dispute, but only decide whether the application presents substantial issues
of fact or law that warrant judicial resolution, and whether granting the application will
serve the public interest. Where, as here, the relator is himself claiming unlawful
dispossession from the office at issue, he presents a “right distinct in kind from the right of
the general public enforceable by an action in the nature of quo warranto.”23 Relator’s
election and swearing-in invested him with at least prima facie title to the office.24 In these
circumstances, leave to sue will ordinarily be granted where the supporting documents and
evidence “are in proper legal form and prima facie sufficient.”25
We review first the eligibility requirements that underlay the City Council’s
declaration of a vacancy in the District 4 seat. Government Code section 34882 provides,
in relevant part: “A person is not eligible to hold office as a member of a municipal
legislative body unless he or she . . . resides in the district and both resided in the
geographical area making up the district from which he or she is elected and was a
registered voter of the city at the time nomination papers are issued to the candidate . . . .”26
Similarly, Government Code section 36502 provides: A person is not eligible to hold office
as councilmember, city clerk, or city treasurer unless he or she is at the time of assuming
process violation because quo warranto procedure provides for restoration to office and
damages).
22
79 Ops.Cal.Atty.Gen. 21 (1996); see also 73 Ops.Cal.Atty.Gen. 197, supra (leave to
sue granted to ousted appointed member of school district personnel commission, whose
office had been declared vacant on residency grounds).
23
84 Ops.Cal.Atty.Gen. 206, 207 (2001), citing International Assn. of Fire Fighters v.
City of Oakland (1985) 174 Cal.App.3d 687, 697.
24
Duley v. Peacock (1911) 17 Cal.App. 418, 422.
25
84 Ops.Cal.Atty.Gen., supra, at p. 207.
26
Gov. Code, § 34882.
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the office an elector of the city, and was a registered voter of the city at the time nomination
papers are issued to the candidate . . . .”27 Finally, Hesperia city ordinance requires: “[T]he
city council member elected to represent a district must reside in that district and be a
registered voter in that district, and any candidate for city council must reside in, and be a
registered voter in, the district in which he or she seeks election at the time nomination
papers are issued . . . .”28
Regarding the legal requirements to establish residency, we observe that “residence”
here, means “legal residence” or “domicile.”29 A person’s legal residence or domicile is
defined as a place of “physical presence plus an intention to make [the] place a permanent
home.”30 The City Council declared a vacancy based on its belief that Relator was not
domiciled in District 4 on and after July 25, 2018. A person need not intend to make a
specific house or dwelling his or her permanent home in order to establish a domicile within
the relevant electoral jurisdiction.31 While a person may have multiple residences, a person
may have only one domicile at any given time.32 Factors considered in determining
domicile include the person’s acts and declarations, mailing address, voter registration, tax
27
Gov. Code, § 36502, subd. (a).
28
Hesperia Mun. Code, § 1.09.020(B).
Walters v. Weed (1988) 45 Cal.3d 1, 7; Smith v. Smith (1955) 45 Cal.2d 235, 239; 101
29
Ops.Cal.Atty.Gen., supra, at p. 17; 72 Ops.Cal.Atty.Gen. 8, 11 (1989).
30
Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1116; see Elec. Code, §§
349, subd. (b), 2021, subd. (b); Gov. Code, § 244, subd. (a).
31
See, e.g., 101 Ops.Cal.Atty.Gen., supra, at p. 22 (2018) (finding intent to make
electoral district permanent residence notwithstanding temporary housing within that
district). The court in DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260 observed:
[T]he concept of a temporary versus permanent move has to do with the
territorial jurisdiction, not the actual dwelling place: [T]he notions of permanency
and an intention to remain which attach to the domicile concept have nothing to do
with the actual dwelling, and everything to do with the actual place or location. A
person could be domiciled in one town all his or her life and have many residences,
some obviously temporary.
(Id. at pp. 1269-1270, internal quotation marks omitted; see also Collier v. Menzel (1985)
176 Cal.App.3d 24, 31 [“While a park may not be legally designated as a place for camping,
it is a physical area where a person can sleep and otherwise use as a dwelling place”].)
32
Elec. Code, § 349, subd. (b); Gov. Code, § 244, subd. (b).
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returns, driver’s license, and homeowner’s exemption.33
Defendants argue that Relator, in his quo warranto application, failed to submit
evidence that he was a registered voter of the City as of the critical date. They contend,
therefore, that Relator “failed to establish one of the two key elements of residency required
to hold office on the Council.”34 But Relator need not conclusively prove his entitlement
to office to gain our consent to sue. For our purposes, Relator need only show the existence
of substantial issues of law or fact warranting judicial resolution concerning his eligibility
to hold office. And we find here that Relator has sufficiently met his burden. Relator
submitted a copy of his Declaration of Candidacy in support of his application to us, and
this sworn document does attest, “I am a registered voter.” The Declaration was signed on
August 9, 2018, some 14 days after Relator obtained his nomination papers.
Additionally, Defendants’ own submissions suggest that Relator was a registered
voter in the City of Hesperia District 4 on the critical date. Defendants submitted a copy
of the voter-fraud complaint that William Jensen sent to the Secretary of State. There,
Jensen stated: “On or about June 21, 2018, I challenged Jeremiah [Brosowske] as to why
Voter Registration card [sic] was coming to my house? He never gave an answer.”35 The
mailing of the Relator’s Voter Registration card to Mr. Jensen’s address is, in itself, an
indication that as of that date Relator was registered as residing at that address, i.e., even if
that circumstance is disputed.
Moreover, the City Council has publicly posted Relator’s sworn application for
appointment to the seat vacated by the death of Mayor Blewett. In that application, dated
July 2, 2018, Relator listed both his home address and his mailing address.36 The
application clearly indicated that an applicant must be registered to vote in the City of
Hesperia, and that the address listed on the application form would be used “for voter
registration verification.” The application bears the hand-written notation: “VR verified
33
99 Ops.Cal.Atty.Gen., supra, at pp. 76-77.
34
Defendants’ Memorandum in Opposition, p. 3.
35
Defendants’ Opposition, Exh. B, Attachment 1.
36
Relator’s application is appended to the agenda for the July 11, 2018 City Council
meeting, available at https://hesperia.legistar.com/MeetingDetail.aspx?ID=613251&GUI
D=5A3F6C8D-4DB7-46A0-A3BC-B1BF311B958A&Options=info&Search= (as of Aug.
21, 2020). The addresses are redacted from the public document; applicants were advised
on the form that personal information would not be made public. We have no reason to
doubt that Relator gave as his home address, “8075 E Avenue, Hesperia,” and Defendants
have not alleged that Relator gave a different address on his application for appointment.
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7/21/18.” If, as would appear, the abbreviation “VR” stands for “voter registration,”37 then
this verification occurred four days before Relator obtained his nomination documents on
July 25, 2018.
The City Council declared a vacancy based on its belief that Relator was not legally
residing, or “domiciled,” within District 4 on and after July 25, 2018. The issue is thus
whether Relator was domiciled somewhere within District 4 as of that date.38 On this point,
Relator states in a sworn declaration that: “Since late May, 2018, and prior to obtaining the
paperwork necessary to run for office, I changed my residence from Apple Valley,
California to my friend’s residence located in Hesperia, District 4.”39 And: “Since pulling
papers to run for office, and indeed prior to this and prior to serving the unexpired term of
the previous councilmember representing District 4, I had not lived in my prior residence
in Apple Valley. Instead, I resided at my friend’s house in District 4, and intended to make
District 4 my permanent home.”40 Also, as we discussed above, Relator’s application for
appointment to the City Council appears to support his claim to have resided as a registered
voter at 8075 E Avenue in Hesperia on July 25, 2018—i.e., within District 4.
Relator’s nomination papers indicate that he gave his address “as registered to vote,”
at “8075 E Avenue” in Hesperia, the home of William Jensen. And Relator has submitted
multiple declarations from witnesses describing indicia of Relator’s lodging at the Jensen
home.41 Some of them witnessed having seen Relator’s clothing there; others reported
having dropped off both Jensen and Relator at the residence; and others heard Jensen
sometimes refer to Relator as his “roommate,” a fact that Jensen himself acknowledged in
his sworn affidavit that was included in Defendants’ submission.42
37
All of the applications for appointment bear the same hand-written “VR” notation,
with different dates on which the apparent verification took place.
In his submissions to us, Relator does not identify an address other than “8075 E
38
Avenue” as his residence on July 25, 2018.
39
Relator’s Verified Statement, ¶ 4.
40
Id., ¶ 5.
41
Defendant objects to statements made in Relator’s supporting declarations on grounds
of hearsay. However, we are not conclusively adjudicating facts or law, but are simply
determining whether to allow Relator to initiate a quo warranto action, wherein any and all
evidentiary objections may be submitted to the court for consideration and adjudication.
42
Jensen states that he used the term only “sarcastically,” a claim that can be tested in
court.
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Relator also submitted documents tending to prove that, in September 2018, he
established residence at 16784 Sultana Street, also in District 4 of Hesperia. Relator’s
declarants have attested to seeing indications that Relator resided first at the 8075 E Avenue
location and then at the 16784 Sultana Street location.
Relator’s supporting declarations are met with insistent statements to the contrary
from Defendants’ declarants. Based on those statements, Defendants contend that
Relator’s domicile was elsewhere than in District 4, from the date on which he obtained
his nomination papers to September 3, 2019, when the City Council declared his seat
vacant. But Defendants submit no affirmative evidence to show that Relator resided
elsewhere. Critically, Defendants do not show that Relator has failed to make a prima facie
case of residency in District 4 during the relevant timeframe. What we do have is a legal
and factual dispute, suitable for judicial resolution, as to whether Relator was domiciled
within District 4 at all times relevant to his office-holding.
We find, then, that Relator has raised substantial issues of law and fact warranting
judicial resolution on the question of his eligibility to hold office and, therefore, whether a
vacancy in the District 4 seat existed on September 3, 2019, when the City Council declared
that seat vacant.
The public interest will be served by authorizing this Quo Warranto action
We have generally viewed the existence of a substantial question of law or fact as
presenting a sufficient “public purpose” to warrant granting leave to sue in quo warranto.43
Here, we believe the public interest would also be served by a judicial determination
whether a vacancy ever existed in Relator’s District 4 seat and thus whether Bennington
was validly appointed to fill such a vacancy.44 This determination would serve the public,
to ensure “the integrity of public office and . . . the qualifications of [public] officials.”45
43
86 Ops.Cal.Atty.Gen. 82, 85 (2003).
44
73 Ops.Cal.Atty.Gen. 197, 200-201, 212 (1990).
45
97 Ops.Cal.Atty.Gen. 12, 20 (2014), citing 95 Ops.Cal.Atty.Gen. 43, 49 (2012). As
mentioned, an election to fill the District 4 seat for the remainder of what was originally
Relator’s four-year term will be held on November 3, 2020, but this does not alter our
conclusion that a judicial resolution of this matter is in the public interest. First, the holding
of the election will not render Relator’s action moot because Relator, if he prevails on his
claim that the Council unlawfully declared his seat to be vacant, would be entitled to serve
out the four-year term to which he was elected in November 2018. In addition, as discussed
above, an official removed from office in the manner that occurred here “may always have
his day in court before it can be conclusively adjudged against him that the office was
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We therefore GRANT Relator’s application for leave to sue in quo warranto.
*****
vacant at the time the [successor’s] appointment was made.” (Klose, supra, 96 Cal.App.2d
at p. 918, quoting People ex rel. Fleming v. Shorb, supra, 100 Cal. at p. 541.)
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