______________________________________ 

______________________________________________________________________________ 

 

 

 

 

 

 

 

 

TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

DANIEL E. LUNGREN
 

Attorney General
 

OPINION : 

: No. 96-802 

of : 

: November 20, 1996 

DANIEL E. LUNGREN : 

Attorney General : 

: 

ANTHONY S. Da VIGO : 

Deputy Attorney General : 

: 

JAMES R. WINSTON has requested this office to grant leave to sue in quo warranto 

upon the following: 

ISSUE OF FACT OR LAW 

May an individual, whose residence is situated on both sides of a city's boundaries and 

whose principal dwelling is located on the portion of the property outside the city's boundaries, occupy 

the office of city council member? 

CONCLUSION 

An individual, whose residence is situated on both sides of a city's boundaries and 

whose principal dwelling is located on that portion of the property outside the city's boundaries, may 

occupy the office of city council member. 

PARTIES 

JAMES R. WINSTON ("relator") contends that MARJORIE SMITH ("respondent") is 

unlawfully exercising the office of Town Council Member of the Town of Windsor, County of Sonoma. 

1. 96-802
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MATERIAL FACTS
 

Since June 1978 respondent has owned and resided upon a 19.5 acre parcel in the 

County of Sonoma. A creek separates 3.5 acres from the remainder of the parcel. The principal 

dwelling unit, a water tower, a detached garage, and a barn are located on the larger segment. A 

smaller detached structure, used for sleeping, eating, and other domestic purposes but which lacks 

independent bath or kitchen facilities, is situated on the smaller segment. Also located on the smaller 

segment is a domestic water well from which the larger dwelling structure obtains its water. The same 

electric lines, telephone lines, and power meter serve both the larger and smaller dwelling units. 

In July 1992 the Town of Windsor ("city") was incorporated as a municipality, with the 

city's boundary defined in part by the creek dividing respondent's property. The 3.5 acre segment was 

incorporated into the city, while the larger segment remains situated in unincorporated territory. At the 

time of incorporation, the Sonoma County Assessor assigned separate parcel numbers to respondent's 

property, which identified respectively the segment within the city and the segment outside the city. 

Respondent's property bears a mailing address on a highway within the city, and the 

entire property is accessible by a driveway from within the city. Records of the Sonoma County 

Registrar of Voters identify the property by its address within the city, and accordingly respondent has 

registered to vote and continues to be registered as an elector within the city. 

In December 1994 respondent was elected as a member of the town council after city 

and county officials, including the Sonoma County Counsel and Registrar of Voters, determined that 

she was properly an elector and registered voter of the city. 

ANALYSIS 

In deciding whether to grant leave to sue in the name of the People of the State of 

California, we consider initially whether there exists a substantial question of law or fact which requires 

judicial resolution, and if so, whether the filing of an action in the nature of quo warranto would serve 

the overall public interest. (79 Ops.Cal.Atty.Gen. 159, 160 (1996).) 

Relator's application for leave to sue is predicated upon the contention that respondent 

resides outside of the boundaries of the city and is therefore ineligible to hold the office of city council 

member. 

1. Requirement of City Residency 

It is clear that a city council member of a general law city must reside within the 

boundaries of the city. The city in question is governed by Government Code section 34882,1 which 

provides as follows: 

1

Unidentified section references are to the Government Code. 

2. 96-802
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

"A person is not eligible to hold office as a member of a municipal legislative 

body unless he or she is otherwise qualified, 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 as 

provided for in Section 10227 of the Elections Code." 

More generally, subdivision (a) of section 36502 states in part: 

"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 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 as provided for in Section 10227 of the Elections Code." 

An "elector" is "any person who is a United States citizen 18 years of age or older and a 

resident of an election precinct at least 29 days prior to an election." (Elec. Code, ' 321.) A 

"registered voter" is allowed to "vote at any election held within the territory within which he or she 

resides and the election is held." (Elec. Code, ' 2000, subd. (a); see Collier v. Menzel (1985) 176 

Cal.App.3d 24, 30; Cothran v. Town Council (1962) 209 Cal.App.2d 647, 661.) 

"Residence" for purposes of voting means a person's "domicile" (Elec. Code, ' 349, 

subd. (a)), which is defined as follows: 

"The domicile of a person is that 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. At a given time, a person may have 

only one domicile." (Elec. Code, ' 349, subd. (b).) 

We have previously determined 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).) Accordingly, if respondent does not qualify as a 

resident of the city, she is not qualified to hold the office of city council member. 

2. Residency in Parts of Two Precincts 

We first examine whether a person's residency for purposes of being an elector and a 

registered voter may be affected by his or her property's "partition" by a political boundary. Here 

respondent's property was in effect "divided" by the city's boundary at the time of incorporation in 

1992. The property is required by law to be in separate precincts. (Elec. Code, ' 12222 ["No precinct 

shall be established so that its boundary crosses the boundary of any . . . incorporated city . . ."].)2 

2

Whether some restrictions may be placed upon respondent preventing her from switching back and forth between the 

two precincts--for administrative or other reasons--is beyond the scope of this opinion. 

3. 96-802
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On the other hand, we have no doubt that respondent's "domicile" is located within the 

city's limits, and thus she may qualify as an "elector" and "registered voter" of the city for purposes of 

holding city office under the governing statutes. She "inhabits" the entire 19.5 acres as her residence 

and intends to remain. (See Collier v. Menzel, supra, 176 Cal.App.3d at pp. 30-31; Bayshore Sanitary 

District v. City of Brisbane (1965) 232 Cal.App.2d 259, 265-267; cf. City of Port Heuneme v. City of 

Oxnard (1959) 52 Cal.2d 385; Cothran v. Town Council, supra, 209 Cal.App.2d 647; People v. City of 

Richmond (1956) 141 Cal.App.2d 107.) She qualifies to hold city office under the literal terms of 

sections 34882 and 36502.3 

The fact that respondent's domicile is also partly located outside the city's boundaries is 

not a disqualifying factor under any express statute. It is true that in Gray v. O'Banion (1913) 23 

Cal.App. 468, 478, the court quoted from a text containing the following interpretive principles: 

"`"When the boundary line between two localities passes through the residence 

of one whose domicile is at issue, if the portion of the house on one side of the line is 

sufficient to constitute a habitation by itself while the other portion is not, the first will 

be considered the domicile. If the line divides more equally, then that portion is 

deemed the domicile where the occupant mainly and substantially performs those 

offices which characterize his home (such as sleeping, eating, sitting, and receiving 

visitors); but in the event of a still closer division, then that part where he habitually 

sleeps is so considered in the absence of other facts showing a positively contrary 

intention."'" 

The foregoing principles have been superseded by statutory law (see Civ. Code, ' 22.2; 

74 Ops.Cal.Atty.Gen. 86, 88 (1991)); Elections Code section 2034 provides: 

"A person domiciled in a house or apartment lying in more than one precinct 

shall be registered as domiciled in the precinct designated by the county elections 

official on the basis of the street address or other precinct the county elections 

official considers appropriate unless the person requests . . . that he or she wishes to 

be domiciled for registration purposes in another precinct in which his or her house 

or apartment lies. . . ." 

While this statutory language refers to "a house or apartment," it does not expressly require the 

dwelling to be comprised of a single, structurally integrated unit. Here respondent's larger and 

smaller dwelling units, served by the same telephone and power lines and used from time to time 

for sleeping, eating, and other domestic purposes, may well comprise an integral dwelling place. 

Applying Elections Code section 2034 under these circumstances, we do not find a compelling 

basis for dividing respondent's residence into multiple residences, necessitating a determination of 

domicile as between them. Rather, as provided in the statute, the street address (which in this case 

3

The administrative action of the Sonoma County Assessor, assigning two parcel numbers to respondent's property for 

purposes of assessing taxes, does not effectuate a subdivision of the property. (62 Ops.Cal.Atty.Gen. 147, 149 (1979).) The 

property remains an integral place for purposes of determining respondent's "domicile." 

4. 96-802
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

lies within the city) or the precinct requested by the individual in question (which in this case is 

located within the city) may determine the place of respondent's domicile for elector and voter 

registration purposes. 

In any event, no substantial question of law is presented by relator's application with 

respect to respondent's place of domicile for purposes of sections 34882 and 36502. 

3. The Public Interest 

Finally, it is well settled that the mere existence of a justiciable issue does not 

establish that the public interest requires a judicial resolution of the dispute or that the Attorney 

General is required to grant leave to sue in quo warranto. (75 Ops.Cal.Atty.Gen. 287, 289 (1992).) 

As stated in City of Campbell v. Mosk (1961) 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." 

We believe it would not be in the public interest to burden the parties, the city, and 

the courts with this dispute, and that a contrary disposition would discourage participation by 

citizens in holding public office. (74 Ops.Cal.Atty.Gen. 26, 29 (1991).) Further, we are mindful 

of the general principle that ambiguities concerning the right to hold public office should be 

resolved in favor of eligibility. The court stated in 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 principle political rights of citizens of the several States.' In 

Carter v. Com. on Qualifications etc., 14 Cal.2d 179, 182, 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 the 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; Fort v. Civil Service Commission, 61 

Cal.2d 331, 335.) 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. . . ." 

The proposed action would not be in the public interest, and leave to sue is therefore 

DENIED. 

* * * * * 

5. 96-802