-----------------------------------

----------------------------------------------------------------

 

 

 

 

 

 

 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:


 OPINION	 :


 : No. 88-792


 of	 :


 : FEBRUARY 17, 1989


 JOHN K. VAN DE KAMP :


 Attorney General :
 : 
 N. EUGENE HILL :


 Assistant Attorney General 	 :


 :
 

C.R.E. SMITH filed an application for leave to sue in quo warranto
 

in the name of the People of the State of California on the relation of Richard
 

Clements versus proposed defendants William Bennetta, Marlon Malcom, Shirley
 

Anderson, and Margaret Feldstein. This application included a Notice of
 

Application to Sue, a proposed verified Complaint in Quo Warranto, Points and
 

Authorities for Leave to Sue, a Declaration of William B. Hafferty, and a Proof
 

of Service of these documents upon the proposed defendants. 


On February 6, 1987, the proposed defendants submitted a response to
 

the application for leave to sue. A reply was submitted on March 5, 1987; the
 

proposed defendants submitted a rebuttal on March 11, 1987. Proposed defendants
 

were requested to provide additional information by letter dated May 27, 1987,
 

and both parties responded to a request for information concerning the bond issue
 

and recall election, said request issued on September 1, 1987. Thereafter, this
 

matter was taken under consideration by the Attorney General's Office. 


CONCLUSION
 

It is determined that leave to sue should be denied. 


STATEMENT OF MATERIAL FACTS
 

Background:
 

On or about April 24, 1984, the Board of Supervisors of the County
 

of Sonoma adopted a resolution ordering the formation of the Timber Cove County
 

Water District, formally confirming the April 10, 1984 election of each of the
 

proposed defendants as directors of said district. The proposed defendants
 

entered into possession of said offices on that date and have continued in
 

possession and have exercised the duties of said offices to the present date. 


A controversy presently exists within the Timber Cove Water District
 

concerning a proposed expansion and improvement of the water system at a cost of
 

approximately $1.8 million. In January of 1987 improvement bonds were issued and
 

liens against the lots were recorded on February 2, 1987. On September 22, 1987,
 

the proposed defendants were the subjects of a recall election. The voters of
 

the Timber Cove Water District chose to retain all four directors. Two of the
 

proposed defendants have since faced their electorate and been returned to office
 

(Anderson and Feldstein). 


1	 88-792
 
 

 

 

 

 

 

 

 

Proposed Defendant Bennetta:
 

Proposed defendant Bennetta first registered to vote in Sonoma County
 

on April 8, 1980. He owns a two-bedroom home at 22210 Umland Circle in Timber
 

Cove, and claims a homeowner's property tax exemption on the dwelling. Mr.
 

Bennetta is the registered owner of a 1978 Toyota pickup truck. His registration
 

of the vehicle with the Department of Motor Vehicles shows an address of P.O. Box
 

26603 in San Francisco, and that the vehicle is garaged primarily at 2210 Umland
 

Circle in Timber Cove. 


Mr. Bennetta is listed in the San Francisco phone book with an
 

address of 3515 Fillmore Street. Mr. Bennetta declares that he maintains a
 

studio apartment at that address for business purposes, and that he shares such
 

apartment on an alternating basis with another resident of Sonoma County. Mr.
 

Bennetta spends occasional evenings there while on business. He does not claim
 

a renter's credit with the Franchise Tax Board on such address. In response to
 

an inquiry into the percentage of time he spent at Timber Cove between May 1986
 

and May 1987, Mr. Bennetta declared that he spends the greater degree of time not
 

in Timber Cove or San Francisco but at a friend's home in Petaluma. No further
 

information was provided with respect to this Petaluma abode. 


Mr. Bennetta utilizes the previously referenced post office box in
 

San Francisco for all of his mail. His personal stationary shows an address in
 

the upper left-hand corner of 22210 Umland Circle in Timber Cove, and in the
 

upper right-hand corner of P.O. Box 26603 in San Francisco. It is Mr. Bennetta's
 

practice to type in "Address for mail" adjacent to the post office box listing.
 

The proposed relator claims, through the declaration of private
 

investigator William B. Hafferty, that numerous neighbors, associates and people
 

who work with Mr. Bennetta all contend that his principal residence is in San
 

Francisco. None of these individuals is named; however, one is listed as the
 

Public Information Officer for Pacific Discovery magazine, a journal to which
 

Mr. Bennetta has submitted articles. Mr. Bennetta contends that there is no
 

public information officer for such magazine, and that no one associated with
 

such journal has sufficient contact with him to know his principal residence. 


Mr. Bennetta's term on the board expires in 1989. 


Proposed Defendant Malcom:
 

Proposed defendant Marlon Malcom owns a residence at 22174 Coast
 

Highway in Timber Cove, and he claims a homeowner's property tax exemption on
 

this dwelling. He receives his mail at a post office box in Duncan Mills, which
 

address is listed with the Department of Motor Vehicles for the registration of
 

his 1971 Dodge vehicle. He has been registered to vote in Sonoma County, at the
 

Timber Cove address, since October of 1983. 


Mr. Malcom maintains a one-bedroom apartment for use an office at
 

1725 Jones Street in San Francisco. He has been listed in the San Francisco
 

telephone book at this address. He contends that he only occasionally spends
 

nights there when he is in San Francisco on business. 


Mr. Malcolm's term on the board expires in 1989. 


Proposed Defendant Anderson: 


Proposed defendant Shirley Anne Anderson is the owner of a home at
 

22070 Highway One in Timber Cove. She became sole owner of the property in 1983
 

2 88-792
 
 

 

 

 

 

 

 

 

pursuant to a divorce decree. Since January, 1984, she has been registered to
 

vote in Sonoma County, listing the Timber Cove property as her residence. 


At the time of her divorce, Ms. Anderson and her ex-husband had
 

ownership interests in four properties besides the Timber Cove home: a
 

condominium in Boulder, Colorado, a house in Connecticut, an interest in an
 

office complex in San Rafael, and a house in San Geronimo. It appears that prior
 

to her divorce, Ms. Anderson and her husband primarily resided at the San
 

Geronimo home. 


During and following her divorce proceeding, Ms. Anderson had a
 

series of temporary residences throughout Marin County. The May, 1986, Marin
 

County telephone book lists an address for her at 2036 Paradise Drive in Tiburan,
 

a residence she claims she maintained between August 1, 1985, and March, 1986.
 

In March of 1986 she moved into a home she owns in San Geronimo,
 

separate from the one she and her ex-husband had previously owned. Tenants who
 

had been living at the property had vacated in February of 1986 due to storm
 

damage. Ms. Anderson contends she is merely staying at the property pending
 

extensive repairs. In addition to her Timber Cove and San Geronimo homes,
 

Ms. Anderson has a one-half ownership in a condominium in Novato.
 

Ms. Anderson utilized her homeowner's property tax exemption for her
 

Novato property between 1983 and March of 1985. Since that time, it has been
 

taken on the Timber Cove property. She has not utilized her renter's credit at
 

any of the aforementioned locales. 


Commencing in 1976, and excepting certain periods of 1979 and 1980,
 

Ms. Anderson has been employed by the Marin County Assessor's Office in San
 

Rafael. She claims that at the present time she cannot find suitable work for
 

her skills at Timber Cove. She states that she spends at least one weekend per
 

month at Timber Cove in order to attend Board meetings. 


Ms. Anderson's term on the board expires in 1991. 


Proposed Defendant Feldstein: 


Proposed defendant Margaret Feldstein is the owner, along with
 

husband Milton Feldstein, of a home on Bufano Court in Timber Cove. They also
 

own a home on Cedarberry Lane in San Rafael. Margaret Feldstein has been
 

registered to vote in Sonoma County since January 11, 1984. Although proposed
 

relator contends that she did not vote in the November, 1986, general election,
 

Ms. Feldstein avers that she did so by way of absentee ballot. 


Milton Feldstein works in San Francisco and frequently travels. He
 

took the couple's homeowner's property tax exemption on the San Rafael property,
 

is registered to vote there, and has registered two vehicles at that locale.
 

Ms. Feldstein has been retired since 1982. She travels extensively, both with
 

and without her husband. She contends that she spends at least one weekend per
 

month at Timber Cove in connection with Board meetings, and also spends holidays
 

and her husband's vacation time there. 


Ms. Feldstein's term on the board expires in 1991. 


CONTENTIONS OF THE PROSPECTIVE PARTIES
 

The proposed relator contends that none of the proposed defendants
 

are residents of Timber Cove, and therefore they are not "voters" within their
 

3 88-792
 
 

 

 

election precincts and not qualified to be directors per section 30500 of the
 

Water Code. 


The proposed defendants contend that their intent is for Timber Cove
 

to be their domicile and therefore they are lawful domiciliaries of Timber Cove,
 

and duly elected and serving members of the Timber Cove Water District. 


ANALYSIS
 

I
 

CRITERIA FOR QUO WARRANTO
 

Quo warranto actions are commenced in the interest of the public to
 

redress wrongs which injuriously affect the public. City of Campbell v. Mosk
 

(1961) 197 Cal.App.2d 640, 648-50; People v. Lowden (1885) 2 Cal.Unrep. 537, 542.
 

In deciding whether to issue leave to sue, the basic question is whether a public
 

purpose would be served. As stated in 39 Ops.Cal.Atty.Gen. 85, 89 (1962):


 "In deciding whether to grant or deny leave to sue, the
 

Attorney General must not only consider the factual and legal
 

problems involved, but also the overall public interest of the
 

people of this state . . ." 


Or as stated in 35 Ops.Cal.Atty.Gen. 123, 124 (1960): 


"This office has the duty to conduct a preliminary
 

investigation of proposed quo warranto litigation to determine
 

whether a substantial issue of fact or law exists which should be
 

judicially determined (11 Ops.Cal.Atty.Gen. 182, 183; 27
 

Ops.Cal.Atty.Gen. 33, 35), and leave should be granted only if there
 

is some public interest to be served. ( People v. Bailey, 30
 

Cal.App. 581, 584.)"
 

See also 67 Ops.Cal.Atty.Gen. 151 (1984); 40 Ops.Cal.Atty.Gen. 78,
 

81 (1962); 37 Ops.Cal.Atty.Gen. 172, 175 (1961). The "public purpose"
 

requirement has been interpreted as requiring "a substantial question of law or
 

fact which calls for judicial decision." 67 Ops.Cal.Atty.Gen. 151, 153 (1984);
 

25 Ops.Cal.Atty.Gen. 237, 240 (1955). 


In deciding whether or not to grant leave to sue, this office does
 

not reach a determination concerning which party should or is likely to prevail
 

before a court. As stated at 12 Ops.Cal.Atty.Gen. 340, 341 (1949): 


 "[I]n acting upon an application for leave to sue in the name
 

of the people of the State, 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 question of law
 

that should be determined by a court in an action quo warranto; that
 

the action of the Attorney General is a preliminary investigation,
 

and the granting of the leave is not an indication that the position
 

taken by the relator is correct, but rather that the question should
 

be judicially determined and that quo warranto is the only proper
 

remedy." 


Thus, in reviewing applications for leave to sue in quo warranto,
 

this office addresses three fundamental questions:
 

1. Is quo warranto the proper remedy to resolve the issues which are
 

presented?
 

4 88-792
 
 

 

 

 

 

 

2. Has the proposed relator raised a substantial question of law or
 

fact?
 

3. Would the public interest be served by judicial resolution of the
 

question?
 

All three questions must be resolved in the affirmative in order for
 

this office to grant leave to sue. 


In determining whether to issue or to deny leave to sue, the Attorney
 

General is accorded broad discretion. This discretion is derived from the
 

statute. Code of Civil Procedure section 803 provides that the Attorney General
 

"may" bring the action on his or her own information or on complaint of a private
 

party, and it "must" be brought when the Attorney General "has reason to believe"
 

that the appropriate conditions exist or when directed to do so by the Governor.
 

The use of the word "must" in the latter portion of the provision does not create
 

a mandatory duty due to the qualifying language that the Attorney General must
 

have "reason to believe" that the appropriate conditions exist. 8 Witkin, Cal.
 

Procedure (3d Ed. 1985) Extraordinary Writs, section 7 at p. 646; International
 

Association of Fire Fighters v. City of Oakland, supra, 174 Cal.App.3d 687, 697.
 

Hence, the Attorney General "has discretion to refuse to sue when the issue is
 

debatable". Id.
 

II
 

IS QUO WARRANTO THE PROPER REMEDY?
 

The first issue to be resolved is whether quo warranto is the proper
 

remedy to test the title to the office of member, Board of Directors, Timber Cove
 

Water District. 


As noted above, applications for leave to sue in quo warranto are
 

governed by the provisions of Code of Civil Procedure section 803, which provides
 

in pertinent part as follows: 


"An action may be brought by the attorney-general, in the name
 

of the people of this state, upon his own information, or upon the
 

complaint of a private party, against any person who usurps,
 

intrudes into, or unlawfully holds or exercises any public office .
 

. ." 


As indicated by this section, the remedy of quo warranto is available
 

to resolve the question of title or right to a public office. Housing Authority
 

v. City Council (1962) 208 Cal.App.2d 599, 603. In fact, quo warranto is the
 

only proper procedure to determine the right or title to a public office occupied
 

by a de facto incumbent. Klose v. Superior Court (1950) 96 Cal.App.2d 913.
 

Insofar as this application seeks a determination of the right of proposed
 

defendants to qualify as members of the Board of Directors of the Timber Cove
 

Water District, quo warranto is appropriate. 


Leave to sue in quo warranto, however, will only be granted when an
 

application for leave to sue presents a substantial issue of law or fact which
 

it would be in the public interest to determine judicially. 35 Ops.Cal.Atty.Gen
 

123, 124 (1960); 11 Ops. Cal.Atty.Gen. 182, 183 (1948). 


5 88-792
 
 

 

 

III
 

ARE THERE JUSTICIABLE ISSUES ON THE QUESTION
 

OF PROPOSED DEFENDANTS RESIDENCY? 


Division 12 of the California Water Code, section 30000 et seq.,
 

governs county water districts. Section 30500 states that each such district
 

shall have a board of five directors, "each of whom, whether elected or
 

appointed, shall be a voter of the district." Section 18 of the Elections Code
 

defines "voter" as "any elector who is registered under the provisions of this
 

code." Section 17 of the Elections Code requires an elector to be "a resident
 

of an election precinct at least 29 days prior to an election." 


It follows, therefore, that a director of a county water district
 

must have been a resident of such district at least 29 days prior to being
 

elected thereto. This is in conformity with previous determinations of this
 

office which have consistently held that local elective public officers must be
 

residents of the particular jurisdiction in which they serve. See 66
 

Ops.Cal.Atty.Gen. 229 (1983); 47 Ops.Cal.Atty.Gen. 36 (1966). 


Rules governing determination of "residence" are found in Government
 

Code section 244. It provides as follows: 


"(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." 


It has been held that the term "residence" used in section 244 means
 

"domicile." Walters v. Weed (1988) 45 Cal.3d 1, 7; Smith v. Smith (1955) 45
 

Cal.2d 235, 239. As such, we are guided by the test for determining domicile,
 

which "is physical presence plus an intention to make that place his [or her]
 

home." Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1116. 


The question of domicile is a mixed question of law and fact. Id.
 

at 1117. Many factors enter into this 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 his or her 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 (Cal. Elec. Code § 211; Fenton v. Board of Directors,
 

supra, at p. 1112). 


6 88-792
 
 

 

 

 

 

 

 

 

 

The critical element is one of intent, and while the declarations of
 

the individual in this regard are important, such declarations are not
 

determinative. The acts of the individual must be examined as well. Mauro v.
 

Department of Mental Hygiene (1962) 207 Cal.App.2d 381, 389. 


We have before us Declarations from each of the office holders so
 

stating their intent. In all cases, their expressed intent is that their
 

domicile or residence be at their Timber Cove home. The declarations also recite
 

additional actions each have taken that supports that stated intent. Those acts
 

vary among the four proposed defendants, but each sets forth activity that
 

implements their declared intent. The proposed realtors cite other facts which
 

are believed to negate that intent. We find the situation similar to that before
 

us in 8 Ops.Cal.Atty.Gen 221 (1946). In that opinion, we had presented a member
 

of a Board of Supervisors who was alleged not to be a resident of his
 

supervisorial district. The proposed defendant filed a declaration setting forth
 

his stated intent and recited demonstrated facts which supported it, such as
 

voter's registration, mail delivery, personal attendance at the address within
 

the district. The proposed relator filed declarations showing auto registration
 

outside the district, postal changes of address and others tending to suggest
 

residency outside the district. 


We denied the application concluding that the direct evidence
 

produced by the proposed defendant, when weighed against the evidence offered by
 

the proposed relator, was not persuasive. That opinion recognized that while a
 

person may have more than one "residence," a person may have only one domicile.
 

Fenton, supra, at page 1115. The material submitted by the proposed relator does
 

establish the fact that each proposed defendant has more than one residence. But
 

it does not establish the domicile of the proposed defendant. 


We are 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 see no justiciable controversy over the proposed defendants'
 

domicile. The criteria to establish domicile in accord with the recognized
 

standard has been met by the proposed defendant by facts that are not in dispute.
 

While other facts are given to us, we do not believe that makes for a controversy
 

7 88-792
 
 

 

 

 

 

 

 

appropriate for judicial review. 8 Ops.Cal.Atty.Gen 221, supra; c.f. Fenton v.
 Board of Directors, supra, 156 Cal.App.3d 1107.
 

IV
 

WOULD THE PUBLIC INTEREST BE SERVED BY
 

JUDICIAL RESOLUTION OF THIS DISPUTE? 


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 inCity 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." 


Here the public interest would not be served by authorizing this
 

action. the primary issue to be litigated is the intent of the proposed
 

defendant to establish domicile. That intent has been manifested by evidence
 

submitted to this office and we cannot say as a matter of law it is inadequate
 

or as a matter of fact it is incorrect. Indeed, precedent supports the opposite
 

conclusion. 8 Ops.Cal.Atty.Gen. 221; Fenton v. Board of Directors, supra, 156
 

Cal.App.3d 1107. When coupled with the public interest in eligibility to hold
 

public office and the resolution of ambiguities in support of that request
 

(Helena Rubenstein Internat. v. Younger, supra, 71 Cal.App.3d 406), we see little
 

purpose in forcing the proposed defendant to respond to a judicial proceeding on
 

such showing. Such disposition would discourage participation of citizens on
 

public boards and commissions such as this water district board. That result is
 

not in the public interest. Consequently, for the reasons stated in this
 

analysis, we believe the proposed action not to be in the public interest. For
 

the foregoing reasons, leave to sue is denied. 


* * * * *
 

8 88-792