When can a California city sue to remove a council member by claiming the member did not actually live in the council district during the residency window?

Plain-English summary

Devon Minnema, a 21-year-old Dixon resident, learned in late July 2016 that the District 3 city council incumbent intended to seek reelection. Rather than run against the incumbent, Minnema decided to move to District 4, where the seat would be open. He stated that he relocated on July 27, 2016, to his aunt and uncle's house at 1320 Revelle Court in District 4, and then on September 19, 2016, to a garage space at 1205 Valley Glen, also in District 4. He obtained nomination papers for District 4 on August 2, 2016, won election that November, and took his council seat.

The City of Dixon, after fielding doubts about Minnema's residence, hired an investigator and ultimately applied to the AG for leave to sue Minnema in quo warranto, arguing he was ineligible because he did not actually reside in District 4 from the date of nomination through the election. The AG denied the application.

The reasoning was straightforward. California law treats "residence" of a public official or candidate as legal residence (domicile), which is fixed habitation plus intent to remain and return. A person can have multiple residences but only one domicile. Domicile cannot be lost without acquiring another, and changing domicile requires "a union of act and intent." Because intent matters, the AG required a "substantial showing" before authorizing a judicial challenge to a person's office.

Minnema's evidence was substantial: a sworn affidavit of residence, post office change-of-address confirmation, voter registration entries (signed under penalty of perjury) listing his District 4 addresses, sworn affidavits from his uncle, mother, stepfather, and former roommates, a copy of a bill addressed to him at Revelle Court, photographs taken at Revelle Court, a public Facebook post identifying his Revelle Court address, rental receipts for the Valley Glen garage space, copies of text messages with his aunt arranging the Revelle Court stay, a flight itinerary documenting his September trip to Texas (which explained one period when neighbors did not see him), and corroborating witness affidavits about helping him move.

The city's evidence was largely circumstantial and unsworn: neighbors who did not see Minnema (one of whom, in a sworn affidavit, stated only that he was "confident" he would have seen Minnema if Minnema had lived there); the city's investigator finding the timing of the move "unclear due to contrasting witness statements"; observations that Minnema had been seen at his mother and stepfather's District 3 home (which Minnema explained was property-management work for his absent parents); and roommates who said Minnema moved to "Valley Glen" without mentioning Revelle Court (which roommates later explained referred to the Valley Glen subdivision in which Revelle Court is located).

The AG also rejected the city's intent argument. The fact that Minnema moved to District 4 specifically to run for office did not defeat his domicile there. As the AG quoted from prior opinions, "moving to an electoral district in order to run for office in that district does not defeat the intent for domicile, nor do temporary moves within the district." The garage living space did not matter either: domicile does not require a traditional dwelling, only "a place of fixed habitation." And the existence of multiple residences was permissible; the question was which residence was the legal one, which was a matter of intent.

The AG ended with the operating principle for close cases: "ambiguities concerning the right to hold public office should be resolved in favor of eligibility." Even where there were arguable issues, the issues did not rise to the level of a "substantial" question warranting quo warranto, and granting leave would not have served the public interest.

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

What is "domicile" for purposes of California public office residency?

Domicile is a person's fixed habitation where they intend to remain and to which they intend to return when absent. A person can have multiple physical residences but only one domicile at a time. Once established, domicile is not lost until another is gained. Changing domicile requires both physical presence at the new place and the intent to make it the new permanent home.

What kind of evidence supports a domicile finding?

The standard non-exclusive list includes: acts and declarations by the official, mailing address, voter registration, car registration, tax returns, where any homeowner's or renter's credit is taken, sworn affidavits, leases or rental receipts, utility records, bills addressed to the person, change-of-address confirmations, and photographs. The "critical element," as the AG put it, is intent.

Can a person establish domicile in a council district just to run for office there?

Yes. The AG quoted DeMiglio v. Mashore (1992): permanency and intention to remain "have nothing to do with the actual dwelling," and a person "could be domiciled in one town all his or her life and have many residences, some obviously temporary." Moving to a district to run for office and making temporary moves within the district while looking for stable housing do not defeat the domicile.

What standard applied to the City of Dixon's quo warranto application?

The AG applies a two-part framework before granting leave to sue: (1) is there a substantial issue of law or fact warranting judicial resolution, and (2) would allowing the action to proceed serve the public interest. Both must be satisfied. The threshold for "substantial" is meaningful: as the AG quoted, "there must be affidavits so full and positive from persons knowing the facts as to make out a clear case of right in such a way that perjury may be brought if any material allegation is false."

Why didn't the city's investigation tip the balance?

Most of the city's evidence was unsworn statements from neighbors and others, which the AG could not weight as heavily as Minnema's sworn declarations and supporting documentary record. The investigator herself reported "contrasting witness statements" and concluded the timing of the move was "unclear." That uncertainty is the opposite of a substantial showing.

What does "ambiguities resolved in favor of eligibility" mean in practice?

When the evidence on both sides creates a genuine doubt about a candidate's eligibility, the doubt favors letting the elected official keep the seat. The AG cited Helena Rubenstein for this principle and applied it as a tiebreaker in close cases. The principle does not protect officials whose ineligibility is demonstrated by a clear evidentiary showing; it protects them where the showing is itself ambiguous.

Background and statutory framework

Residency requirements for general law city council members

California Government Code section 34882 imposes the residency requirement for city council members in general law cities. Continuous residence in the represented district is required from the time nomination papers are issued. The AG's prior opinions, including 79 Ops.Cal.Atty.Gen. 243 (1996) and 75 Ops.Cal.Atty.Gen. 26 (1992), have made clear 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." Loss of district residence after election can therefore void continued service.

The City of Dixon operates under a city manager form of government authorized by Government Code section 34851. The city's council seats are tied to geographic districts within the city. District 3 and District 4 are adjacent.

Quo warranto basics

Quo warranto, originally a Crown writ used by English monarchs to challenge claims to office or franchise, became a statutory action under Code of Civil Procedure section 803. Today it is the procedural mechanism for testing whether a person lawfully holds a public office. A private party (or, here, a municipality) needs leave from the AG before filing the action.

The leave-to-sue analysis is preliminary; the AG does not decide the merits of the underlying dispute. But the AG's review is "particularly pertinent" in domicile cases because so much depends on intent, which means the case will rise or fall on credibility and weight of evidence rather than on any cleanly disposable legal question.

Domicile statutes

Government Code section 244 codifies California's domicile rules. Subdivision (a) defines residence as "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." Subdivision (b) limits a person to one domicile at a time. Subdivision (c) provides that domicile "cannot be lost until another is gained." Subdivision (f) requires "a union of act and intent" to change domicile. Elections Code section 349, subdivision (b), parallels these definitions.

How the AG weighed the evidence

The AG worked through each of the city's allegations:

On the Revelle Court period, the AG had Minnema's sworn change-of-address, voter registration, and nomination papers all dated August 2, 2016, all listing 1320 Revelle Court. His uncle's affidavit attested to residence there. Text messages with his aunt corroborated the arrangement. A bill in his name was sent to the address. A photograph dated August 15 placed him at the residence helping with pets while his aunt and uncle were in Hawaii. A public Facebook post on August 2 identified Revelle Court as where he lived. Even neighbor reports were mixed; at least one occasionally saw Minnema and his vehicle there.

On the Valley Glen period, the AG had Minnema's sworn declaration of residence, an updated voter registration dated September 19, 2016, listing 1205 Valley Glen, sworn affidavits from his mother, stepfather, and a resident in the room above the garage, rental receipts spanning September 2016 to May 2017, and text messages arranging the rental. The city's own investigator acknowledged the property owner and her son, both living on site, corroborated seeing Minnema's vehicle there.

On the period when Minnema was reportedly at his mother and stepfather's District 3 house, the AG accepted Minnema's explanation: he was managing the property for his parents who were in Texas for fourteen months, and his presence at that address did not establish domicile there. On the trip to Texas in early September 2016, an itinerary and corroborating affidavits explained why neighbors might not have seen him at Revelle Court that week.

On the city's "intent" argument, the AG applied DeMiglio: permanency of the dwelling is irrelevant; intent to remain in the district matters. Minnema's documented housing search in District 4, voter registration, and prior community ties (school, church, downtown association service) all supported intent to make District 4 his domicile.

Citations

The AG's analysis pulls from settled California domicile case law and a long line of prior AG opinions:

• DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260 is the leading authority for the proposition that domicile turns on intent to remain in the district, not on permanency of any particular dwelling.
• Collier v. Menzel (1985) 176 Cal.App.3d 24 holds that even a public park, while not legally designated for camping, can qualify as fixed habitation. Cited here to support that a garage qualifies as a place of fixed habitation.
• Walters v. Weed (1988) 45 Cal.3d 1 establishes the legal-residence-equals-domicile principle for public officers.
• Helena Rubenstein Internat. v. Younger (1977) 71 Cal.App.3d 406 is the source of the "ambiguities resolved in favor of eligibility" tiebreaker.
• Rando v. Harris (2014) 228 Cal.App.4th 868 addresses the AG's broad discretion in granting or denying leave to sue and the threshold for "substantial" issues of law or fact.
• Lamb v. Webb (1907) 151 Cal. 451 is the historical source of the "substantial showing" standard requiring affidavits "so full and positive" that perjury could be brought on any false material allegation.

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/17-601_0.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
CATHERINE BIDART
Deputy Attorney General

No. 17-601
April 11, 2018

Proposed relator, the CITY OF DIXON, applies to this office for leave to sue proposed defendant DEVON MINNEMA, Dixon city council member from the city's District 4, in quo warranto to oust him from that office on the ground that he did not reside in District 4 at all times required by state law.

CONCLUSION

Proposed relator does not raise a substantial question of law or fact that warrants initiating a judicial proceeding, and allowing the proposed quo warranto action to proceed would not serve the public interest. Proposed relator's application for leave to sue in quo warranto is therefore DENIED.

ANALYSIS

Proposed relator the City of Dixon (City) is a general law city with a city manager form of government. As such, eligibility to be a council member requires continuous residence in the represented City district from the time nomination papers are issued. Here, the City requests leave to sue proposed defendant Devon Minnema (Minnema) in quo warranto under Code of Civil Procedure section 803 to challenge his right to hold the office of city council member from the City's District 4.

Specifically, the City alleges that Minnema is ineligible to hold office because he did not reside in District 4 on August 2, 2016, the date on which he obtained his nomination papers, and also questions his residence in District 4 from that date and continuing through his election to the council in November 2016. For the reasons discussed below, we find that the City's allegations do not raise a substantial legal or factual issue that would warrant the initiation of a quo warranto lawsuit.

Quo warranto

A party granted leave to sue from the Attorney General may bring a lawsuit in the name of the People of the State of California "against any person who usurps, intrudes into, or unlawfully holds or exercises any public office . . . ." In considering whether to grant leave to sue, we must determine whether (1) there is a substantial issue of fact or law warranting a judicial resolution, and (2) allowing the proposed quo warranto action to proceed would serve the overall public interest. Our analysis is guided by the principle that a "chief object in requiring leave is to prevent vexatious prosecutions, and the rule is inflexible that there must be affidavits so full and positive from persons knowing the facts as to make out a clear case of right in such a way that perjury may be brought if any material allegation is false."

Applicable law concerning "legal residence" or "domicile"

In this context, the residence of a public official or candidate for public office means his or her legal residence, also referred to as domicile, which is in turn defined as a person's fixed habitation where he or she intends to remain, and intends to return to whenever absent. While a person may have multiple residences, a person may have one domicile only at any given time. Thus, a domicile "cannot be lost until another is gained." To change domicile, it requires a "union of act and intent."

Because a determination of domicile is based not only on physical conduct, but also intent, the requirement that a substantial showing be made before we authorize judicial resolution is particularly pertinent. The determination of domicile is a mixed question of fact and law which may involve many factors, such as acts and declarations by the official, his or her mailing address, voter registration, car registration, tax returns, and where a homeowner's or renter's credit is taken, but the critical element is intent.

The parties' contentions and our analysis of the evidence

Minnema resided outside of the City's District 4 before July 27, 2016. Prior to that date, Minnema, at 21 years of age, resided in the City's District 3, with roommates, in his mother and stepfather's home, while they lived in Texas for fourteen months. On July 26, 2016, Minnema learned from the District 3 incumbent council member that the member would seek reelection that fall; upon learning of this, Minnema stated that he would move to District 4, so as not to run against the District 3 incumbent. The parties do not dispute these preliminary facts. What is disputed, however, is the question where Minnema resided when he obtained his nomination papers on August 2, 2016, through his election a few months later.

On the one hand, Minnema has stated under penalty of perjury that he moved to District 4 on July 27, 2016, and has resided in District 4 ever since. Specifically, he states that he moved on that date to 1320 Revelle Court, and then on September 19, 2016, to 1205 Valley Glen, both of which are locations within District 4.

On the other hand, the City alleges in its application for quo warranto that Minnema did not reside in District 4 from the time he obtained his nomination papers through his election. In response to doubts expressed to the City about Minnema's residence, the City hired an investigator to look into the matter, and its allegations here are largely based upon its investigator's report.

As to the Revelle Court address, the City relies on unsworn statements made by neighbors to its investigator that they did not see Minnema or his vehicle there (although the investigator's report also indicates at least one neighbor occasionally saw Minnema and his vehicle there during the relevant period), and a sworn affidavit from Revelle Court neighbor Fermin Rubio, who stated he did not observe Minnema living on Revelle Court but was "confident" that he would have if that had been the case. The City further disputes Minnema's Revelle Court residency because it was temporary, because Minnema was still seen at his mother and stepfather's home in District 3 during this time period, and because Minnema's former roommates at the District 3 home told the investigator that Minnema moved from there to the Valley Glen address without mentioning the intervening Revelle Court address. The City also alleges that Minnema produced no physical evidence of his presence at Revelle Court and rebuffed its requests for an affidavit of residence.

As to the 1205 Valley Glen address, the City disputes Minnema's residence at this location in large part because he claims to have resided in its garage, which lacks a bathroom. The City also alleges that Minnema and his mother contacted a property manager during the relevant period, urgently seeking housing for Minnema in District 4. The City's investigator, however, found that Minnema initially resided at 1205 Valley Glen on a periodic basis, but concluded that the timing of his move there was unclear due to contrasting witness statements, the lapse of time, and the lack of a traditional lease. The investigator also generally concluded it was likely that Minnema stayed the night at multiple residences after his conversation with the District 3 incumbent.

In his sworn response to the City's application for quo warranto, Minnema maintains that on July 27, 2016, the day after learning that the District 3 incumbent would seek reelection, he began formally residing at 1320 Revelle Court, where his aunt and uncle live, in District 4, and moved numerous boxes of his belongings there. Minnema also maintains that on September 15, 2016, he moved to 1205 Valley Glen, owned by his friend's mother, from whom he rented the garage space, while continuing to look for more suitable housing.

With his response, Minnema provided his signed affidavit of residence in District 4 that the City had previously requested. He also provided a copy of a post office confirmation dated August 2, 2016, showing his address change to 1320 Revelle Court, and his voter registration and nomination papers (both processed on August 2, 2016, and signed under penalty of perjury) which list his address as 1320 Revelle Court. Minnema updated his voter registration on September 19, 2016, to show his address as 1205 Valley Glen.

In addition to his affidavit, change-of-address confirmation, voter registration, and nomination papers, Minnema also provided sworn affidavits by his uncle, mother, stepfather, and former roommates, as well as copies of rental receipts, text messages with his aunt, and communications with friends and potential landlords documenting his search for housing in District 4.

The affidavit from Minnema's uncle, signed October 4, 2016, states that Minnema resided at 1320 Revelle Court since June 1 of that year. No affidavit by Minnema's aunt was provided, but a copy of Minnema's text messages with her corroborate his arrangements to stay at the Revelle Court house in a fully-furnished bedroom. Because Minnema asserts that he resided on Revelle Court for only about a month and a half, until other accommodations could be found, we would not expect much physical evidence to exist of his residence there. But in addition to his uncle's affidavit and text messages with his aunt, Minnema also provided a copy of a bill in his name sent to him at the Revelle Court address during the relevant period. He also provided a copy of a picture of him, dated August 15, 2016, with his aunt and uncle's pets whom he helped take care of during one of the weeks he was there while his aunt and uncle were in Hawaii. And the City investigator's report includes a copy of Minnema's public Facebook post, dated August 2, 2016, in which he replies "Revelle Court" to a question of where he lives.

As to the City's allegation that he was still seen at the home of his mother and stepfather in District 3 after July 27, 2016, Minnema attributes this to his property-management duties at that address while his mother and stepfather were away in Texas until they returned in September of 2016. With regard to his former roommates' statements to the City's investigator that Minnema moved from the District 3 address to "Valley Glen" (without mentioning the intervening Revelle Court address), the roommates explain under oath that they were not referring to the specific address of 1205 Valley Glen, but to the Valley Glen subdivision in which Revelle Court is located.

We next turn to the affidavit from Minnema's father. He attests that, on July 27, 2016, the day after Minnema confirmed that the District 3 incumbent was running for reelection, he helped Minnema move several boxes and a bookshelf to 1320 Revelle Court, and then on September 15, helped him move those items and a box spring and mattress to 1205 Valley Glen. The affidavit states that on both occasions, they used Minnema's father's pickup truck, due to problems with Minnema's and his mother's vehicles. The affidavit also states that, during the week of September 1, 2016, Minnema left his vehicle at his father's residence (which is located outside of District 4) while Minnema visited his mother and stepfather in Texas, accounting for the vehicle's absence from Revelle Court for one of the weeks he resided there.

Minnema's mother and stepfather also attest that, near the end of September, they helped Minnema move the rest of his belongings to the 1205 Valley Glen garage space, and witnessed on multiple occasions his messy living space there. An affidavit from a resident of the room above the garage at 1205 Valley Glen attests that Minnema moved into the garage space in September. Minnema also provided copies of text messages arranging to rent that space, along with rental receipts that cover the period between mid-September of 2016 through mid-May of 2017. And, according to the City's own investigation, a few neighbors corroborated seeing Minnema's vehicle nearby, as did the property owner and her son (both of whom lived there).

As to Minnema's refusal to voluntarily comply with the City's requests for a signed affidavit of residence, we believe that his refusal to the City has little significance because he provided it with his response, along with his sworn statements of residence on his nomination papers and voter registration.

Finally, we address the City's argument that, notwithstanding the issue of Minnema's physical presence at his claimed residences, Minnema lacked the intent to permanently reside in District 4 so as to establish his domicile there. Specifically, the City asserts that Minnema's alleged residences were temporary, not permanent, and that he sought to establish residence in District 4 solely to run for office. Minnema maintains that he intended his move to District 4 be permanent, and points to his previous ties to the district, including his attendance at public schools and church, and his service on a downtown association, within the district. In our view, Minnema's documented communications of his search for housing in the district during the relevant period support his sworn stated intent to remain there.

In any event, the City's challenge to Minnema's intent is misplaced. Even though Minnema's living space at the Valley Glen address was a garage, a domicile need not be a traditional place of residence, so long as it is a place of fixed habitation. And there is no requirement for an intent to permanently remain at a particular dwelling; instead, what matters is the intent to permanently remain in the district. It is of no consequence that Minnema sought residence in District 4 to run for office, and made temporary moves within the district while establishing a domicile there: Moving to an electoral district in order to run for office in that district does not defeat the intent for domicile, nor do temporary moves within the district. Again, it is the intent to remain within the district that matters. We believe that Minnema's actions, which "speak louder than words," are consistent with and reflect his stated intent, and that the City has presented insufficient evidence to cast doubt upon that intent.

After carefully considering all of the evidence presented, we find that no substantial showing has been made that would warrant the initiation of a quo warranto action on the question of Minnema's residency. In sum, the City's challenge is based on scant, ambiguous, circumstantial, and largely unsworn evidence, as opposed to the direct, sworn statements of action and intent (and supporting documentation) that Minnema has provided. In general, "ambiguities concerning the right to hold public office should be resolved in favor of eligibility." We recognize that the parties offer competing scenarios here, but we have broad discretion in ruling on quo warranto applications, and the presence of an arguable or debatable issue does not necessarily establish that the issue is a substantial one, much less that the dispute warrants judicial resolution in a quo warranto action. In light of the evidence presented to us, we perceive no substantial question of law or fact that would warrant a judicial examination of the issue whether Minnema was domiciled in District 4. And, given our analysis, we further conclude that it would not serve the public interest to perpetuate, or expend scarce judicial resources on, such an inquiry. For the reasons discussed above, the application for leave to sue in quo warranto is DENIED.