Can a California school board trustee be removed for not living in the trustee area she was elected to represent?

Plain-English summary

The Klamath-Trinity Joint Unified School District in Humboldt County has seven trustee areas. Trustee Area Six covers Weitchpec, where the district runs a small Yurok elementary school with about 11 students. Trustee Area Two covers Willow Creek, an hour's drive away on a frequently closed road, which has a much larger elementary school enrolling about 210 students. Patricia Kelley was elected to represent Area Six in November 2017 and was sworn in on January 9, 2018.

Kelley and her husband own a house in Weitchpec (Area Six) and rent another home in Willow Creek (Area Two), where their granddaughter, a first-grader under Kelley's legal guardianship, attends the Trinity Valley Elementary School. Kelley acknowledged that she had moved to Willow Creek roughly twelve years earlier and had spent most of her time there because it was closer to her job and her children's activities. She did not live in Weitchpec when she submitted her candidate paperwork.

The district asked the California Attorney General for permission to file a quo warranto lawsuit removing Kelley from the Area Six trustee seat. The AG granted leave. California law requires a school district trustee to legally reside in the trustee area both when elected and throughout the term (Ed. Code, § 5030, subd. (b); Gov. Code, § 1770, subd. (e)). For this purpose, "residence" means legal residence or domicile: physical presence with intent to make the place a permanent home (Walters v. Weed (1988) 45 Cal.3d 1, 7-8). The AG identified two substantial questions for a court to resolve. First, whether Kelley's domicile was actually in Willow Creek, not Weitchpec, at the time of her November 2017 election. Her own statements ("I did not live in Weitchpec at the time I applied to run") and a long paper trail (employment forms, guardianship paperwork, her granddaughter's student registration, district correspondence) all used the Willow Creek address. Second, whether Kelley had genuinely moved back to Weitchpec since the election, as she claimed in a December 2017 affidavit. Her granddaughter still attended school in Willow Creek, the rental was still in her name, and Kelley did not specify how often she actually stayed at the Weitchpec house. The Secretary of State had referred the matter to the Humboldt County District Attorney for investigation. The AG concluded that the public interest favored letting a court resolve these factual questions and granted the district leave to sue. The opinion did not finally decide that Kelley was disqualified; it left the merits to the trial court.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What's the residency rule for California school board trustees?
A: The trustee must legally reside in the area they represent both when elected and throughout the term (Ed. Code, § 5030, subd. (b); Gov. Code, § 1770, subd. (e)). "Reside" means legal residence, which California treats as the same as "domicile" (Fenton v. Bd. of Directors (1984) 156 Cal.App.3d 1107, 1116). A person can have several physical residences but only one domicile (Smith v. Smith (1955) 45 Cal.2d 235, 239).

Q: How is domicile determined?
A: It's a place of physical presence joined with the intent to make that place a permanent home. The most important element is intent, but the AG and courts also look at acts and declarations, mailing addresses, homeowner's exemption, driver's license, voter registration, business and personal contacts, and where the person's children go to school (Walters v. Weed (1988) 45 Cal.3d 1, 7-8). Once a domicile is established, it's presumed to continue until the person shows that a new one has been acquired (90 Ops.Cal.Atty.Gen. 82, 86 (2007)).

Q: Can a candidate establish a new domicile just to run for office?
A: It's permitted, but the candidate must actually move, not just say they will. Establishing domicile in order to qualify for office is allowed (101 Ops.Cal.Atty.Gen. 16, 21 (2018)). What's not allowed is declaring an intent without meaningful physical presence. The relator in a domicile-change case carries an initial burden, then the candidate has to show actual physical presence at the alleged new home. The AG noted that Kelley's statement to an elections manager that she "could move in a weekend" if necessary suggested her actual home was elsewhere.

Q: Does where my grandchild goes to school affect my domicile?
A: It can be evidence. Children's school location is one of the conventional factors courts and the AG consider. Here, Kelley's granddaughter attended a school an hour's drive from the claimed Weitchpec residence, on a road that frequently closes, in an area where the district did not generally allow Weitchpec students to attend. The district reasonably argued that the granddaughter's continued enrollment in Willow Creek undermined the claim of a real move back to Weitchpec.

Q: What evidence supported the substantial-issue finding?
A: Several layers. Kelley's own admission that she had spent most of her time in Willow Creek for years and did not live in Weitchpec when she applied to run. The Willow Creek address on her 2005 District employment application, her April 2017 resignation letter, her 2010-2017 notices of assignment, her 2015 letter of temporary guardianship, and her granddaughter's 2015 and 2017 school registration forms. District correspondence sent to Kelley about her granddaughter's attendance, mailed to Willow Creek one week before the election. By contrast, a 2001 letter sent to her at the Weitchpec address came back unclaimed.

Q: Can a candidate fix a residency problem by moving after election day?
A: No. A school district trustee must legally reside in the area both when elected and throughout the term. If she did not legally reside there at the time of her election, she is ineligible to serve, even if she later changes her legal residence to the area after the election (86 Ops.Cal.Atty.Gen. 194, 195 (2003); 73 Ops.Cal.Atty.Gen. 197, 207 (1990)). That's why the AG's first inquiry was directed to Kelley's residency at the time of the election in November 2017.

Q: Did the AG grant the district's request that the AG personally prosecute the case?
A: No. The district asked the AG to litigate the quo warranto action because of the district's limited financial resources. The AG declined, calling the matter "purely local" and best suited to the district's own counsel under AG supervision (Cal. Code Regs., tit. 11, §§ 6-9).

Background and statutory framework

The Klamath-Trinity Joint Unified School District is a public school district in Humboldt County, organized into seven elected trustee areas. Trustee Area Six covers Weitchpec; Area Two covers Willow Creek. Trustee Patricia Kelley was elected to Area Six on November 7, 2017, and sworn in on January 9, 2018.

Quo warranto under Code of Civil Procedure section 803 lets the AG, on his own information or on a private party's complaint, sue a person who usurps, intrudes into, or unlawfully holds public office. A private relator (here the school district) must obtain the AG's permission. The AG decides whether substantial questions of fact or law exist for judicial resolution and whether granting leave serves the public interest, without resolving the merits (Rando v. Harris (2014) 228 Cal.App.4th 868, 873; Citizens Utilities Co. v. Super. Ct. (1976) 56 Cal.App.3d 399, 406).

A school district trustee is a public officer for quo warranto purposes (97 Ops.Cal.Atty.Gen. 1 (2014); 86 Ops.Cal.Atty.Gen. 194, 195-196 (2003); 84 Ops.Cal.Atty.Gen. 154, 155-156 (2001); 58 Ops.Cal.Atty.Gen. 888, 891-892 (1975)). California requires school district trustees to reside in their trustee area both when elected and continuously through the term (Ed. Code, § 5030, subd. (b); Gov. Code, § 1770, subd. (e); Klamath-Trinity Bd. Bylaw 9220).

Education Code section 35160.5(b) sets out rules on intradistrict transfer of students within a district, ordinarily requiring a parent to choose a school within the district where they live. The opinion noted that Kelley had not requested an intradistrict transfer for her granddaughter, suggesting that the granddaughter remained in Willow Creek attendance because Kelley still resided there.

Citations and references

Statutes:
- Code of Civil Procedure section 803 (quo warranto)
- Education Code section 5030(b) (trustee area residency)
- Education Code section 35160.5(b) (intradistrict student transfers)
- Government Code section 1770(e) (vacancy on loss of local residence)
- Government Code section 244 (residence and domicile)
- Government Code section 12172.5(b) (Secretary of State enforcement referrals)

Cases:
- Rando v. Harris (2014) 228 Cal.App.4th 868
- Walters v. Weed (1988) 45 Cal.3d 1
- Fenton v. Bd. of Directors (1984) 156 Cal.App.3d 1107
- Smith v. Smith (1955) 45 Cal.2d 235
- Citizens Utilities Co. v. Super. Ct. (1976) 56 Cal.App.3d 399
- City of Campbell v. Mosk (1961) 197 Cal.App.2d 640

Prior AG opinions cited:
- 13 Ops.Cal.Atty.Gen. 127 (1949)
- 58 Ops.Cal.Atty.Gen. 888 (1975)
- 73 Ops.Cal.Atty.Gen. 197 (1990); 73 Ops.Cal.Atty.Gen. 354 (1990)
- 81 Ops.Cal.Atty.Gen. 98 (1998)
- 84 Ops.Cal.Atty.Gen. 154 (2001)
- 86 Ops.Cal.Atty.Gen. 82 (2003); 86 Ops.Cal.Atty.Gen. 194 (2003)
- 87 Ops.Cal.Atty.Gen. 30 (2004)
- 89 Ops.Cal.Atty.Gen. 55 (2006)
- 90 Ops.Cal.Atty.Gen. 82 (2007)
- 93 Ops.Cal.Atty.Gen. 144 (2010)
- 95 Ops.Cal.Atty.Gen. 43 (2012)
- 97 Ops.Cal.Atty.Gen. 1 (2014); 97 Ops.Cal.Atty.Gen. 12 (2014); 97 Ops.Cal.Atty.Gen. 50 (2014)
- 98 Ops.Cal.Atty.Gen. 94 (2015)
- 99 Ops.Cal.Atty.Gen. 74 (2016)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/17-1201.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL
State of California

XAVIER BECERRA
Attorney General

OPINION of XAVIER BECERRA, Attorney General; LAWRENCE M. DANIELS, Deputy Attorney General

No. 17-1201
August 23, 2018

Proposed relator KLAMATH-TRINITY JOINT UNIFIED SCHOOL DISTRICT has requested leave to sue proposed defendant PATRICIA KELLEY to remove her from the public office of trustee of the Board of Trustees of the Klamath-Trinity Joint Unified School District on the ground that she did not legally reside in the trustee area that she represents at the time of her election and during her term.

CONCLUSION

Leave to sue is GRANTED to determine whether proposed defendant PATRICIA KELLEY meets the legal residency requirements for holding the public office of school district trustee.

ANALYSIS

Introduction

The Klamath-Trinity Joint Unified School District (District) is a public school district in Humboldt County. The District is organized into seven trustee areas, each represented by an elected board trustee. On November 7, 2017, Patricia Kelley (Kelley) was elected as trustee of Area Six, which serves the area of Weitchpec. Kelley was sworn in as trustee on January 9, 2018.

Under state law, a school district trustee must reside in the trustee area he or she represents. Here, the District seeks leave to sue Kelley in quo warranto to remove her from office based on the District's allegation that, both at the time of the election and since then, Kelley has resided in Area Two, which serves the area of Willow Creek, rather than in Area Six, which she represents. After reviewing the parties' submissions, we find that the District has raised substantial questions of fact and law concerning whether Kelley resided and resides in Area Six and that it would be in the public interest to allow the District to pursue its claim in court. Accordingly, we grant the District leave to sue.

Factual Background

The central facts regarding Kelley's residence at the time of her election are undisputed. Kelley and her husband own a house in Weitchpec, located in Area Six. Area Six includes the Weitchpec Yurok Magnet/Elementary School, which enrolls 11 students from transitional kindergarten through third grade. Kelley also rents a property in Willow Creek, located in Area Two. She and her husband have custody of a granddaughter, who is in the first grade at the Trinity Valley Elementary School in Willow Creek. Trinity Valley serves about 210 students from transitional kindergarten through eighth grade and is about an hour's drive away from Weitchpec.

Kelley states that she moved to Willow Creek from her and her husband's house in Weitchpec about 12 years ago. After that, she "lived most of the time" at the rental in Willow Creek because it "was much closer to [her] job and [their] children's sports, school (no Jr. High or High School in the Weitchpec area), and jobs." She says, "I did not live in Weitchpec at the time I applied to run for the School Board." She and her husband "are raising two young grandchildren," aged 21 months and seven years, and they "have four grandchildren attending schools in the district, and several planning to as they reach school age." She explains that "the rental near Willow [C]reek was very convenient and necessary." At the same time, she continued to keep up the Weitchpec home and remained "very connected to the Weitchpec community."

Kelley alleges that before the election, someone from the county office of elections told her that she was eligible to run for the seat in Area Six as long as she was registered to vote there. After a manager there later informed her that the superintendent of the District believed she was ineligible to run because she did not live in Area Six, she told the manager that "if policy stated [she] had to live in Weitchpec, [she] could move in a weekend, as [she and her husband] have a home there." Documentation submitted by the District corroborates that Kelley primarily lived at the Willow Creek address from at least 2005 to the time of the election.

On the other hand, the facts regarding Kelley's current residence are controverted. After the election on November 7, 2017, the Secretary of State's office initiated an investigation of Kelley's residence. In connection with this investigation, Kelley signed an affidavit on December 6, 2017, stating that she has "just moved back to Weitchpec." She alleges that now, "[m]ore home time is spent in Weitchpec," that her "husband spends most of his time there," and that they plan to make improvements to the property and retire there.

The District, however, points out that Kelley still maintains her Willow Creek residence and that her granddaughter continues to attend Trinity Valley Elementary School. Further, the District has received no notification that her granddaughter resides at a new address. Although Kelley has asked to receive her mail regarding board matters at the Weitchpec address since being sworn in, she continues to receive mail from Trinity Valley Elementary School at the Willow Creek address. The District contends that Kelley continues to reside in Willow Creek and disputes that Kelley has moved back to Weitchpec.

Applicable Law

Code of Civil Procedure section 803 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 . . . within this state." The state possesses this remedy, known as quo warranto, to protect the people's interests. In determining whether to grant an application for leave to sue in quo warranto, we do not resolve the matter on the merits, but instead decide whether the application presents a substantial issue of fact or law appropriate for judicial resolution and whether the application would serve the overall public interest. For quo warranto purposes, a school district trustee holds a "public office."

A person may not serve as a board trustee of the District unless the person resides in the trustee area the person represents both when elected and throughout his or her term of office. A person's "residence" for this purpose means his or her "legal residence" or "domicile." A domicile or legal residence is a place of physical presence joined with the intent to make that place a permanent home. Although a person may reside in multiple locations, a person may have only one domicile at a time. In determining which of two residences is a person's domicile, we look at a combination of the person's intent and conduct, although the critical element is intent. Considerations in determining domicile include the person's acts and declarations, mailing addresses on official documentation, homeowner's exemption, driver's license, voter registration, business and personal contacts, and children's living arrangements or school location. There is a presumption that once a domicile is established, it continues until it is demonstrated that a new domicile has been acquired.

Substantial Questions Are Presented in the Quo Warranto Application

We first determine if there is a substantial question whether Kelley's legal residence was outside of Area Six at the time of her election. She is ineligible to serve as trustee if she did not legally reside there at the time of her election, even if she later changed her legal residence to Area Six after the election.

The parties agree that at the time of the election, Kelley had two residences: the house that she and her husband own in Weitchpec in her trustee area (Area Six), and her rental in Willow Creek where her granddaughter, who is under Kelley's legal guardianship, attends elementary school (Area Two). Kelley admits that, when the election was held, she "lived" in Willow Creek. She states that she "moved" to the Willow Creek address about 12 years ago and that since then, she "spent most of the time" there because it was more convenient to take care of her children and was closer to their sports activities. And she states that when the issue of legal residency was brought to her attention before the election, she told the election board manager that she could "move" to Weitchpec if necessary. Although not necessarily determinative, Kelley's statements suggest that at the time of her election, she considered the Willow Creek residence to be her permanent home.

Kelley's use of the Willow Creek address as her mailing address on documents relating to her employment, guardianship, and granddaughter's education also indicates that she physically resided there at the time of her November 2017 election. Kelley worked for the District from 1987 to June 2017. Originally, in 1987, Kelley identified her address as the Weitchpec address on her employment eligibility verification form. Years later, however, a 2001 District correspondence to Kelley at the Weitchpec address was returned as unclaimed. Then, in both her 2005 application for a new position within the District and her April 2017 letter of resignation, Kelley listed her address as the Willow Creek address. From the 2010-2011 school year through the 2016-2017 school year, the District used the Willow Creek address for Kelley in its notices of assignment. Kelley identified this same Willow Creek address in her letter of temporary guardianship of her granddaughter in 2015 and on her granddaughter's student registration forms in 2015 and 2017. And on October 30, 2017, only one week before the election, the District sent correspondence to Kelley at her Willow Creek address regarding her granddaughter's attendance. Along with Kelley's statements, these documents raise a substantial question about whether Kelley's domicile was in Willow Creek, outside of Area Six, her trustee area, at the time of the election.

Moreover, there is a viable dispute over where Kelly currently domiciles. She asserts that at some unspecified date after the election, she moved back to her house in Weitchpec within Area Six. She has also asked to receive her mail involving board business at the Weitchpec address. However, Kelley acknowledges that she still keeps the Willow Creek residence as one of her "two homes," and she fails to set forth when she stays at the Weitchpec address. Nor does she dispute that a granddaughter in her custody still attends Trinity Valley Elementary School, or that she has failed to notify the school of a change of address to Weitchpec. The school is in Willow Creek, an hour's drive from Weitchpec on a road that is frequently closed. In fact, according to the superintendent, the District ordinarily does not permit students living in Weitchpec to attend Trinity Valley for attendance reasons. This undermines Kelley's claim that she has moved back to Weitchpec since her election. The District thus presents an additional substantial question of fact or law: whether Kelley currently resides in Area Six.

Granting the Application to Sue Would Serve the Public Interest

Absent countervailing circumstances, we view the need to judicially resolve a substantial question of fact or law to be a sufficient public purpose to warrant granting leave to sue in quo warranto. We see no countervailing circumstances here. Accordingly, the District's application for leave to sue in quo warranto is GRANTED to determine whether Kelley satisfies the legal residency requirements for holding the public office of school district trustee for Area Six of the Klamath-Trinity Joint Unified School District.