TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-110
of :
: April 11, 1996
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
LUIS PATLAN ("relator") has requested this office to grant leave to sue ARCADIO
VIVEROS ("defendant") in quo warranto pursuant to section 803 of the Code of Civil Procedure to test
defendant's right to hold the office of Mayor of the City of Parlier.
CONCLUSION
Leave to sue in quo warranto is granted to test defendant's right to hold the office of
mayor, where the city council appointed defendant to the office after declaring it vacant on the basis
that the incumbent was no longer a resident of the city.
ISSUES OF LAW OR FACT
Does the elective office of mayor of a general law city become vacant if the incumbent
assumes a new residence outside of the city limits? If so, was relator no longer a legal resident of
Parlier when the city council declared his office vacant and appointed defendant?
STATEMENT OF FACTS
Relator was elected Mayor of Parlier in November of 1994. At that time he resided in
Parlier. In April of 1995, he closed escrow on a house in the City of Clovis. Relator's loan application
for the Clovis house required him to agree to occupy, establish, and use the property as his principal
residence within 60 days after execution of the deed of trust and to continue to occupy the property as
his principal residence for at least one year after the date of occupancy.
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Relator declares that at all times relevant to this matter he was a resident of Parlier and
that he has resided in that city on a continuous basis since taking office. He states that he has always
considered Parlier to be his place of residence. Following the close of escrow on his Clovis house in
April of 1995, relator was advised that he might not be able to continue to be the Mayor of Parlier if he
moved his residence to Clovis. He therefore did not move out of his Parlier residence. He is a
registered voter in Parlier, receives the bulk of his mail there, and has not changed his address with the
Department of Motor Vehicles. He has not filed for a homeowner's property tax exemption on the
Clovis house and is seeking to sell the property.
At a special meeting of the city council held on October 4, 1995, a motion to declare
vacant the office of mayor was passed by a 3-2 vote, based primarily upon relator's purchase of the
Clovis house and the lending requirements pertaining thereto. At a regular meeting of the council on
October 12, 1995, the decision declaring the office of mayor vacant was affirmed and relator was
removed therefrom. At a special meeting on October 18, 1995, the council appointed defendant to fill
the vacancy.
CRITERIA FOR QUO WARRANTO
Section 803 of the Code of Civil Procedure provides that an action in the nature of quo
warranto "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. . . ." In determining whether to grant leave to sue upon
the complaint of a private party, this office addresses three fundamental questions: (1) whether quo
warranto is the proper remedy to resolve the issues presented; (2) whether the proposed relator has
raised a substantial question of law or fact; and (3) whether it would be in the public interest to grant
leave to sue. (73 Ops.Cal.Atty.Gen. 197, 200 (1990); 72 Ops.Cal.Atty.Gen. 15, 20 (1989).)
ANALYSIS
1. The Remedy of Quo Warranto
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, at 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.
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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.)
On October 19, 1995, relator filed a petition for a writ of mandate in superior court,
seeking his reinstatement to the office of mayor. On December 27, 1995, the court sustained
defendant's demurrer "on the ground that the proper remedy is a proceeding in quo warranto."
We conclude that a quo warranto action is the proper remedy to determine whether
defendant is lawfully holding the office of Mayor of Parlier.
2. Substantial Issues of Law or Fact
a. Continuing Residency Requirement
Parlier is a general law city with a city manager form of government and an elective
mayor. Government Code section 34904 1 specifies the eligibility requirements for election to the
office of mayor in such a city:
"A person is not eligible to hold office as mayor unless he or she is at the time
of assuming that 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."
Section 34903 states that an elective "mayor is a member of the city council and has all of the powers
and duties of a member of the city council." The eligibility requirements for becoming a
councilmember in a general law city with a city manager are contained in section 34882:
"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."
With respect to cities in general, subdivision (a) of section 36502 states:
"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
1
All references hereafter to the Government Code are by section number only.
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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.
"If during his or her term of office, he or she moves his or her place of
residence outside of the city limits or ceases to be an elector of the city, his or her office
shall immediately become vacant."
Additionally, section 1770, subdivision (e) provides:
"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. . . ." (Italics added.)
Here, it may be argued that we do not have an office "for which local residence is
required by law." Under the express terms of section 34904, eligibility to hold the elective office of
mayor is measured by the person's electoral or voting status at two discrete points in time. In contrast,
other statutes dealing with eligibility requirements for local public officials have been viewed as
imposing ongoing residency requirements only when they incorporate some form of the term
"resident." (See 73 Ops.Cal.Atty.Gen., supra, at 203-206).
However, even if section 34904 does not contain an implied continuing residency
requirement, the more general provisions of sections 34882 and 36502 may still require adherence to
their terms in these circumstances. While a specific statute controls a general statute when the two are
in conflict (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 420), "statutes or
statutory sections relating to the same subject must be harmonized, both internally and with each other,
to the extent possible" (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379,
1387). Under this latter principle of statutory construction, relator may be subject to the requirements
of sections 34882, 34904, and 36502 which are applicable to all councilmembers.
In any event, whether an elected mayor of a general law city is subject to a continuing
residency requirement presents a substantial question of law for a court to resolve.
b. Change of Legal Residence
Assuming relator is subject to a continuing residency requirement, we are faced with a
mixed question of law and fact with respect to whether he has changed his residence to Clovis. Still
within the context of whether a vacancy has occurred, the questions become (1) by what legal standard
is an officeholder's place of legal residence to be determined and (2) has relator met that standard as
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regards residency in Parlier. We find that this inquiry also constitutes a substantial question of law and
fact which justifies granting leave to sue in quo warranto.
The term "residence" as used in subdivision (e) of section 1770 has not been defined by
the Legislature. However, section 244 states:
"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.
"(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."
The Supreme Court has ruled that the term "residence" as used in section 244 means "legal residence"
or "domicile." (Walters v. Weed (1988) 45 Cal.3d 1, 7; Smith v. Smith (1955) 45 Cal.2d 235, 239; see
also Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1113; 72 Ops.Cal.Atty.Gen. 8, 11
(1989).) The test for determining a person's domicile is physical presence coupled with an intention to
make that place his or her permanent home. (Fenton v. Board of Directors, supra, 156 Cal.App.3d at
116.) To ensure that everyone has a domicile at any given time, the Legislature has adopted the rule
that a domicile is not lost until a new one is acquired. (' 244, subd. (c); Walters v. Weed, supra, 45
Cal.3d at 7.) Stated otherwise, a domicile, once acquired, continues until it is shown that a new
domicile has been acquired. (DiMiglio v. Machore (1992) 4 Cal.App.4th 1260, 1268.)
In 72 Ops.Cal.Atty.Gen. 8, supra, we examined a situation where a city mayor
purchased a home approximately 38 miles outside the city limits and filed a homeowner's property tax
exemption for the new residence. He moved a mobile home to his property located within the city,
where he spent one to three nights each week. In determining that the mayor had not changed his legal
residency by such conduct, we stated:
". . . While the question of domicile is a mixed question of law and fact
[citation], many factors enter into the equation, including where an individual is
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registered to vote and his or her address for mail [citation], where tax returns are filed
[citation], where an automobile is registered [citation], and where a homeowner's
exemption or renter's credit is taken [citation]. However, the critical element is that of
intent. While declarations of intent are significant, they are not determinative. The
acts must be examined as well. [Citation.]" (Id., at p. 14.)
Here, there is evidence that relator had, at one time, intended to change his legal
residence to Clovis. However, the question remains whether there ever existed a physical presence in
Clovis coupled with relator's intent to make that place his permanent home. Residence can be changed
only by a union of act and intent. (In re Foster's Estate (1959) 170 Cal.App.2d 314, 316-317.)
Relator has exhibited a pattern of activity which is consistent with holding a "dual residence." A dual
residence would not preclude a determination that he has retained his "domicile" or "legal residence" in
Parlier. (See 75 Ops.Cal.Atty.Gen. 287, 289 (1992); 72 Ops.Cal.Atty.Gen. 63, 70 (1989); 72 Ops.Cal.
Atty.Gen., supra, at 23.)
The circumstances presented by relator are similar to those considered in 73
Ops.Cal.Atty.Gen. 197, supra, where we observed:
"The factual issues bearing on where Mr. Pallan was and is domiciled are thus
conflicting. As to them, in considering the Application `it is not the province of the
Attorney General to pass upon the issue . . . or to indicate whether the proposed
plaintiff or defendant should, in his opinion, prevail, but rather . . . to determine
whether there exists a state of facts or questions of law that should be determined by a
court in an action in Quo Warranto.' [Citations.] In our opinions last year, and ones
before then [citation], when the issue of domicile was raised and the facts presented
were similarly conflicting and equivocal toward establishing the domicile of the
proposed defendant, we viewed that as being insufficient to grant leave to sue in quo
warranto, and denied the Applications accordingly. [Citations.] But those opinions
did not involve a challenge by the former office holder questioning the correctness of
his appointing power's having considered a vacancy to exist in his position and having
filled it. As discussed, Mr. Pallan has a right to be heard in court on that issue.
[Citations.] We thus believe that a substantial mixed issue of fact and law regarding
Mr. Pallan's domicile is presented which should be resolved by a court and justifies
granting leave to sue." (Id., at pp. 210-211; italics added.)
3. The Public Interest
Finally, not only must a substantial question of law or fact be presented for this office to
grant leave to sue, it must be in the public interest to have the matter decided by a court. In the instant
matter, the central question turns on the eligibility of relator to hold the office of mayor, which he
occupied prior to his ouster by the city council.
In determining whether the public interest would be served by granting this application
for leave to sue, we are mindful of the principles expressed in Helena Rubenstein Internat. v. Younger
(1977) 71 Cal.App.3d 406, 418:
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"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.)"
We also find that relator's ouster, having occurred relatively early in his four-year term of office, may
be rectified by a court proceeding (if appropriate) prior to the expiration of the term (see 76
Ops.Cal.Atty.Gen. 254, 262 (1993)), and more importantly, that an elected incumbent is normally
entitled to a judicial hearing prior to a conclusive determination of a vacancy in his or her office (73
Ops.Cal.Atty.Gen., supra, at 212; see 75 Ops.Cal.Atty.Gen., supra, at 290). Lastly, the resolution of
the legal issue of whether an elective city mayor must reside within the city for his or her entire term of
office is important not only to relator and the citizens of Parlier, but to elective mayors and their
respective constituencies throughout the state. (See 73 Ops.Cal.Atty.Gen., supra, at 212.)
Accordingly we believe the public interest would be served by granting the application
for leave to sue.
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