Can a California city councilmember be removed from office for not actually living inside the city?

Plain-English summary

A Ridgecrest city council candidate, Scott Leahy, asked the California Attorney General for permission to file a quo warranto lawsuit to remove Wallace T. Martin, who had won a council seat in November 2016. Leahy's claim was that Martin's actual home had been a property on Felspar Avenue in unincorporated Kern County, just outside Ridgecrest, for fifteen years, and that the steps Martin took to look like a Ridgecrest resident (a short-term lease on Lee Avenue starting July 2016, a duplex purchase on California Avenue in October 2016) were paperwork moves, not a real change of domicile.

Under California law, a city council candidate must legally reside (be domiciled) inside the city when nomination papers issue, when the candidate is elected, and continuously through the term. "Domicile" means a place of physical presence joined with the intent to make it a permanent home. A person can have several residences but only one domicile. Once established, a domicile is presumed to continue until a new one is shown.

The Attorney General granted leave to sue. The opinion did not finally decide that Martin was disqualified. It decided, only, that there were substantial issues of fact and law worth letting a court resolve, and that letting that lawsuit proceed served the public interest. The AG noted that Martin had not provided meaningful evidence of physical presence at the Lee Avenue rental between the lease's July 2016 start and his October 2016 duplex purchase, that he had stated he leased the property to "follow the letter of the law" to be eligible, and that several declarations from neighbors and process servers tended to show he was not actually living at any Ridgecrest address well into his term.

Currency note

This opinion was issued in 2019. 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: Is "residence" the same as "domicile" for California elected office?
A: For purposes of holding a city council seat, yes. The cases cited by the AG (Walters v. Weed (1988) 45 Cal.3d 1; Smith v. Smith (1955) 45 Cal.2d 235) treat the residency requirement as a domicile requirement: physical presence plus intent to make the place a permanent home. Government Code section 244 and Elections Code section 349 both echo that definition.

Q: Can a candidate have two residences and still be qualified?
A: A person can have multiple physical residences, but only one legal domicile (Gov. Code, § 244, subd. (b); Smith v. Smith). For city council eligibility, the question is which place is the candidate's domicile.

Q: What evidence shows where someone is domiciled?
A: Walters v. Weed (1988) 45 Cal.3d at 7-8 and Government Code section 244 list a non-exhaustive set of factors: a person's acts and declarations, mailing address, voter registration, tax returns, driver's license, and homeowner's exemption. The AG also noted that the most important evidence of intent is the person's conduct, not their statements (85 Ops.Cal.Atty.Gen. 90, 93 (2002)).

Q: Does it matter that Martin moved into Ridgecrest just to run?
A: No. Establishing a domicile in order to qualify for office is permitted (101 Ops.Cal.Atty.Gen. 16, 21 (2018); see Johnson v. Johnson (1966) 245 Cal.App.2d 40, 45). What is not permitted is the reverse: declaring an intent to move while not actually doing so. The AG's concern in this case was that Martin's presence at the Ridgecrest addresses was thin enough to raise a substantial question about whether the move ever really happened.

Q: Who carries the burden in a domicile-change case?
A: Once a relator shows the candidate's domicile was outside the locality, the candidate has the burden of showing a change of domicile inside the locality, including a showing of physical presence at the alleged new home (DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260, 1268-69; 90 Ops.Cal.Atty.Gen. 82, 86 (2007)).

Q: Is the AG deciding the merits in a leave-to-sue opinion?
A: No. The AG decides whether a substantial issue of fact or law exists, and whether allowing a quo warranto suit would serve the public interest (Rando v. Harris (2014) 228 Cal.App.4th 868, 879). If yes, the case proceeds to superior court for a real merits determination. The court, not the AG, ultimately decides whether the candidate forfeits the office.

Q: What kinds of evidence supported the substantial-issue finding here?
A: A grant deed showing fifteen-year ownership of the Felspar Avenue property outside Ridgecrest. Martin's own statements, including a public statement that he had rented the Lee Avenue property "from a friend on a temporary basis" and that he had done so to "follow the letter of the law." A declaration from a neighbor of the California Avenue duplex who said she watched the property for many months and never saw Martin or his vehicles there. Process server declarations showing repeated unsuccessful attempts at the Ridgecrest addresses, and successful service at Felspar Avenue at 8:32 a.m. with Martin appearing as if he had just woken up.

Background and statutory framework

California law requires a person serving as a city council member to reside within city boundaries when nomination papers are issued, when assuming office, and throughout the term of office (Gov. Code, §§ 1770, subd. (e), 34882, 36502, subd. (a)). For this purpose, residence means legal residence or domicile (Walters v. Weed (1988) 45 Cal.3d 1, 7).

Quo warranto is the established mechanism to test whether a person lawfully holds public office, codified at Code of Civil Procedure section 803. The Attorney General controls access: a private relator must obtain leave from the AG before filing in superior court (Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, 1228-29). The leave-to-sue inquiry has two parts: (1) whether a substantial issue of fact or law exists warranting judicial resolution, and (2) whether allowing the proposed action serves the overall public interest (Rando v. Harris (2014) 228 Cal.App.4th at 879).

In this case, both prongs were satisfied. The AG identified three separate substantial issues: whether Martin had changed his domicile to Ridgecrest by the August 2016 nomination date, whether he had done so by the November 2016 election, and whether his domicile remained Ridgecrest continuously after the election. As to public interest, the AG noted there were no countervailing considerations (the term was not nearly over, no parallel litigation was pending) and that ensuring elected officials actually meet residency requirements is itself a public-interest goal.

Citations and references

Statutes:
- Code of Civil Procedure section 803 (quo warranto)
- Government Code sections 1770(e), 34882, 36502(a) (city council residency)
- Government Code section 244 (residence and domicile)
- Elections Code section 349, subdivision (b) (domicile defined)

Cases:
- Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221
- 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
- DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260
- Johnson v. Johnson (1966) 245 Cal.App.2d 40

Prior AG opinions cited:
- 101 Ops.Cal.Atty.Gen. 16 (2018)
- 100 Ops.Cal.Atty.Gen. 29 (2017)
- 99 Ops.Cal.Atty.Gen. 74 (2016)
- 98 Ops.Cal.Atty.Gen. 85 (2015)
- 98 Ops.Cal.Atty.Gen. 94 (2015)
- 97 Ops.Cal.Atty.Gen. 1 (2014)
- 97 Ops.Cal.Atty.Gen. 12 (2014)
- 95 Ops.Cal.Atty.Gen. 43 (2012)
- 90 Ops.Cal.Atty.Gen. 82 (2007)
- 87 Ops.Cal.Atty.Gen. 30 (2004)
- 86 Ops.Cal.Atty.Gen. 82 (2003)
- 85 Ops.Cal.Atty.Gen. 90 (2002)
- 81 Ops.Cal.Atty.Gen. 98 (1998)
- 76 Ops.Cal.Atty.Gen. 157 (1993)
- 73 Ops.Cal.Atty.Gen. 197 (1990)
- 72 Ops.Cal.Atty.Gen. 8 (1989)
- 72 Ops.Cal.Atty.Gen. 63 (1989)
- 35 Ops.Cal.Atty.Gen. 198 (1960)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/18-1103.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. 18-1103
June 13, 2019

Proposed relator SCOTT LEAHY has requested leave to sue proposed defendant WALLACE T. MARTIN to remove him from the public office of member of the Ridgecrest City Council on the ground that proposed defendant MARTIN did not legally reside in the city at the time his nomination papers were issued, at the time of his election, and during his term of office.

CONCLUSION

Leave to sue is GRANTED to determine whether proposed defendant WALLACE T. MARTIN meets the legal residency requirements for holding the public office of council member of the City of Ridgecrest.

ANALYSIS

Introduction

Ridgecrest is a general law city in Kern County governed by a city council consisting of a mayor and four members who serve at large. Proposed defendant Wallace T. Martin (Defendant) was elected as a Ridgecrest city council member in November 2016. Proposed relator Scott Leahy (Relator), another candidate in the election, has submitted an application in quo warranto challenging Defendant's eligibility to serve as council member for failing to be a legal resident of Ridgecrest, as required by state law, and has offered evidence and argument why he should be allowed to sue in court to remove Defendant from the office he now holds. After carefully reviewing the parties' submissions, we conclude that a substantial question is presented regarding Defendant's legal residency and that it would be in the public interest to allow a quo warranto lawsuit to proceed.

Background

The following timeline reflects the parties' allegations about Defendant's legal residency:

• A copy of a grant deed submitted by Relator indicates that Defendant and his wife bought a property on Felspar Avenue, located in an unincorporated area of Kern County, just outside the City of Ridgecrest, on October 3, 2001. According to a copy of another grant deed submitted by Relator, Defendant and his wife made an interspousal transfer of this property to Defendant on September 22, 2016. A newspaper article dated April 7, 2017 reports that at a Ridgecrest City Council meeting, Defendant referred to this property as his "former home." In his sworn declaration dated November 19, 2018, Defendant refers to the property as "our [his and his wife's] property."

• According to Defendant's declaration, he entered into a rental agreement to lease a property on Lee Avenue in Ridgecrest on June 27, 2016, almost 15 years after he and his wife purchased the home on Felspar. Defendant further declares that the rental agreement took effect on July 1, 2016. According to a newspaper article submitted by Relator, Defendant reportedly stated at a candidate forum held on September 29, 2016, that he was leasing the property "from a friend on a temporary basis." Later, Defendant was reported to have stated at an April 7, 2017 city council meeting that he had rented the Ridgecrest property in order to "follow the letter of the law" to be eligible for city council.

• On August 2, 2016, as reflected in a copy of Defendant's nominating papers submitted by Relator, Defendant stated listing his residence as the Lee Avenue address. Also on August 2, 2016, according to both Defendant's declaration and his reported statement at the candidate forum mentioned above, he registered to vote using the Lee Avenue address.

• On or about October 25, 2016, according to Defendant's declaration, Defendant completed a purchase of a duplex property on California Avenue in Ridgecrest. At the city council meeting held April 7, 2017, Defendant stated that he had done so as an "extra step" to establish legal residency in the city.

• On November 8, 2016, Defendant won election to the Ridgecrest City Council in the Kern County consolidated presidential general election. Relator asserts that on December 7, 2016, Defendant was sworn into office.

• On January 17, 2017, Defendant declares, the tenant in one of his duplex units on California Avenue in Ridgecrest vacated the premises at Defendant's behest. Defendant further declares that sometime in April 2017, after completing substantial repairs, he moved into this unit. His declaration further states that on April 7, 2017, he changed his driver's license to reflect this address, and that on June 5, 2018, he changed his voter registration in kind.

In his application to sue in quo warranto, Relator states that Defendant "still lives" on Felspar Avenue outside Ridgecrest and does not live at either the Lee or California Avenue addresses in Ridgecrest. Relator attaches reports from a private investigator suggesting that Defendant lodged at the Felspar Avenue address from May 9 through 11, 2018, and from May 14 through 15, 2018. In his declaration, the investigator states that during these periods, Defendant went to his place of work in Ridgecrest in the morning, came home to the Felspar Avenue address after work, and stayed there in the evening.

In the declaration he submitted in support of his opposition, Defendant states that he "stayed at" the Felspar Avenue address from May 9 through 11, 2018, and that he did so to care for his wife (as well as some animals on his property) because she needed treatment for a "medical condition." Defendant also states that he "once again stayed at" Felspar on the "evening" of May 14 and explains that this was to care for his animals while his wife traveled to UCLA for medical treatment. Defendant contends, however, that even assuming he has dual residences both inside and outside the Ridgecrest city limits, this "4-day snapshot out of 815 possible days" does not negate that his "domicile" was and is in Ridgecrest.

In reply, Relator submits additional evidence to show that contrary to Defendant's contention, it was not merely these dates that Defendant stayed at the Felspar Avenue address. Relator contends that his evidence demonstrates that Defendant's "dual residence claims . . . are a sham attempt at establishing domicile in Ridgecrest city to make him eligible for city council." To support this assertion, Relator submits a sworn declaration from Lori Acton (another candidate in the Ridgecrest city council election), who states that from September 2017 through June 2018, she lived in a residence on California Avenue that had "an unobstructed view" of Defendant's duplex units, one of which Defendant states that he moved into in April 2017. Acton alleges that she had a "daily routine of checking for [Defendant] or his vehicles" at the duplex but that she never observed Defendant, his wife, or their cars there. Acton says that, between February and May 2018, she "would drive [her] boyfriend's sons to school each morning at 7:20 a.m." and "check" the "duplexes," and, likewise, did not see Defendant, his wife, or their vehicles there. Acton further swears that between May 2018 and October 2018, while driving to her father's residence (which she did with "considerable" frequency during this period "due to his declining health"), she passed by Defendant's duplex property each time, "specifically looked to determine" whether Defendant's or his wife's cars "were parked at that location," but "[a]t no time did [she] ever see" either of their cars parked there. On the other hand, when "occasionally" driving by the Felspar Avenue residence outside Ridgecrest, she "would observe" Defendant's and his wife's "vehicles parked in their driveway behind an electronic gate." Additionally, Acton declares that "[f]or over the past two years [she] has received telephone calls from multiple individuals who have attended dinner parties at the [Defendant and his wife's] county residence on Felspar."

Relator has also submitted declarations from two process servers, Peggy Partida and Kenneth Yule, in support of his claim that Defendant still legally resides at the Felspar Avenue property, not at any Ridgecrest address. The contents of these declarations are described below.

First, on October 27, 2018, at 8:32 a.m., Peggy Partida "personally served" Defendant at the Felspar Avenue address with the quo warranto application materials now under consideration. At the time of service, Partida declares, Defendant came to the door looking "as if he had just woken up" and wearing "sweats." Then, on October 29, 2018, at 7:25 a.m., according to an "affidavit of due diligence" (signed under penalty of perjury) attached to her declaration, Partida attempted to serve Defendant with an amended verified statement of facts at the Lee Avenue property in Ridgecrest (which Defendant was leasing) but received "no answer." At 8:00 a.m., Partida declares, she attempted to serve Defendant at the Felspar Avenue address. Partida says that while she was "on a public road while in [her] car," Defendant's wife "threatened to call the sheriff if [she] did not leave."

Subsequently, on October 31, 2018, according to process server Kenneth Yule's declaration and attached "affidavit of reasonable diligence" (also signed under penalty of perjury), Yule unsuccessfully "personally attempted" to serve Defendant at the Felspar, California, and Lee addresses with the same amended pleading at 6:00 p.m., 6:30 p.m., and 7:05 p.m., respectively. On November 3, 2018, at 11:20 a.m. in yet another unsuccessful service attempt, according to Yule's declaration and attached affidavit of reasonable diligence, Yule saw Defendant's "two toned Dodge Ram parked in front of his gate at" the Felspar Avenue property. Finally, on November 5, 2018, at noon, according to Partida's declaration and proof of service, after Defendant requested to meet in a public place, Partida served Defendant at a Denny's restaurant in Ridgecrest.

Applicable Law

Quo warranto is an action for challenging whether someone lawfully holds a public office. 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." If a private party desires to bring a quo warranto lawsuit in superior court, the party must first obtain leave from the Attorney General. In determining whether to grant such leave to sue, we do not decide the merits of the controversy; rather, we decide whether there is a substantial issue of fact or law warranting judicial resolution and whether permitting a quo warranto action to commence would serve the overall public interest.

The position of city council member is a public office for quo warranto purposes. An established ground to challenge a city council member's occupation of the office in a quo warranto proceeding is that the member does not legally reside in the city. Specifically, a person may not serve as a city council member unless the person resides within city boundaries when nomination papers are issued, when assuming office, and throughout the term of office. For this purpose, residence means "legal residence" or "domicile." Legal residence or domicile is defined as a place of physical presence joined with the intent to make the place a permanent home. It is the place where a person has "the most settled and personal connection." Although a person may have multiple residences, a person may have only one legal residence/domicile. Factors considered in determining domicile include the person's acts and declarations, mailing address, voter registration, tax returns, driver's license, and homeowner's exemption.

Once established, a domicile is presumed to continue until it is demonstrated that a new domicile has been acquired. Where a relator establishes a defendant's domicile outside the relevant locality, the defendant has the burden of showing a change of domicile inside the locality. In such a case, the defendant must make a sufficient showing of "physical presence" at the alleged new domicile. To satisfy the "critical element" of intent, "declarations of intent are significant," but "they are not determinative. The acts must be examined as well." Although there is nothing improper about establishing a domicile in order to gain eligibility for office, "[i]t is not enough that a [person] desires to acquire or keep a 'legal residence' or 'legal domicil;' the intention necessary for the acquisition of a domicil is an intention as to the fact, not as to the legal consequences of the fact."

Substantial Questions Exist as to Defendant's Legal Residency

It is uncontested that from October 2001 to June 2016, Defendant's domicile was his Felspar Avenue property in unincorporated Kern County outside the City of Ridgecrest. Defendant therefore carries the burden of showing that he changed his domicile to a location inside Ridgecrest before being issued his nomination papers in August 2016 and before his election in November 2016.

Based on a careful review of the parties' submissions, we have no cause to doubt that Defendant intended that his rental property on Lee Avenue would function as his domicile for purposes of his nomination to city council, effective July 2016, but there remains a question whether it actually became his new domicile, that is, a place of physical presence joined with the intent to make it his permanent home. Defendant stated only that he was leasing the property "on a temporary basis" for the sake of demonstrating legal residency in Ridgecrest. While Defendant changed his voter registration to the Lee Avenue address around the time of his nomination, he has not declared that he spent any time there, let alone lived there, nor that he took any concrete steps to make it his home. We therefore find a substantial question as to whether Defendant has carried his burden of showing that he had changed his longtime domicile to a location inside Ridgecrest at the time of his nomination.

Moreover, there is a legitimate issue whether Defendant established a domicile within Ridgecrest between his nomination in August 2016 and his election in November 2016. In October 2016, Defendant purchased a duplex on California Avenue in Ridgecrest as an "extra step" to establish legal residency. Here too, Defendant's intent that his domicile be legally considered as Ridgecrest for the purpose of the election is apparent. But again, what is lacking is any corroborating evidence of his physical inhabitation, or even his physical presence, at his temporary rental on Lee Avenue between the nomination and election. According to Defendant, he did not move into one of his duplex units on California Avenue in Ridgecrest until April 2017, after his election. We therefore also find a substantial question whether Defendant has carried his burden of showing a change of domicile to Ridgecrest before the election.

Lastly, we believe that Relator has raised a significant issue as to whether Defendant has been domiciled in Ridgecrest continuously since his election in November 2016. Defendant alleges that he moved into a duplex unit on California Avenue in April 2017, but that leaves the period from November 2016 to April 2017 with no evidence that he had a fixed habitation in Ridgecrest beyond his statements that he entered into a rental agreement with a friend in order to become eligible for city council. And although Defendant summarily declares that he moved into the California Avenue unit that he purchased, he does not allege how often he has been dwelling there.

In fact, the evidence submitted by Relator credibly suggests that there has been, at least, a sizable amount of time when Defendant has had no physical presence in Ridgecrest since the election. To summarize, one potential witness declares that she regularly observed Defendant's duplex unit on California Avenue from September 2017 through October 2018 (daily from September through June, and frequently thereafter), not seeing Defendant, his wife, or their cars there. Defendant was served with the original quo warranto application in the morning at his Felspar Avenue property (outside Ridgecrest), appearing as though he had just woken up, which suggests he had slept there overnight. In addition, the process servers could not locate Defendant at his Ridgecrest addresses on multiple dates, also corroborating the allegation that he has not established an abode within Ridgecrest. Indeed, Defendant does not dispute that he happened to be staying at the Felspar Avenue location on the days of the investigator's stakeout in May 2018. Other evidence allegedly identifying Defendant's and his wife's vehicles and dinner parties at their Felspar Avenue property also tends to show their regular presence there.

Without purporting to resolve Relator's claim, or conclusively determine the facts at issue, we find that the totality of the evidence submitted to us raises a substantial question whether Defendant's domicile has been in Ridgecrest at all times while serving as council member.

The Overall Public Interest Warrants Allowing Relator to Pursue a Quo Warranto Action

Absent countervailing considerations, we have viewed the existence of a substantial question of fact or law as presenting a sufficient "public purpose" to warrant granting leave to sue in quo warranto. We see no countervailing considerations here. Accordingly, Relator's application for leave to sue in quo warranto is GRANTED.