Can a California elected official be ousted in quo warranto for running under her married name when she still uses her birth name on payroll records?

Plain-English summary

Judy Morris won election as Trinity County Supervisor in District 2 in July 2016, defeating Thomas Fox by a wide margin (71% to 27.7%). After she was sworn in, Fox asked the California Attorney General for permission to file a quo warranto lawsuit removing Morris from office and installing himself instead. His theory was that Morris's "legal name" was her birth name, "Judy Yzquierdo," and that running under her married name "Morris" without a court order changing her name amounted to using a "fictitious name" under Elections Code section 18200, a felony statute.

The undisputed facts: Morris was raised under the name Judy Marie Yzquierdo. She married Jeffrey Morris in 1998. Jeffrey Morris served as Trinity County Supervisor until 2008, when he ran for U.S. House. Judy Morris was elected to fill that seat. She was elected to a full term in 2012, by which time she was publicly known as "Judy Morris." After 2012 she and Jeffrey Morris divorced, but she continued to use her married name socially and on her ballot, while Trinity County continued to pay her under "Yzquierdo."

The Attorney General denied the application. California has long recognized a common law right to change one's surname by general usage, without a court order or any statutory procedure. Code of Civil Procedure section 1286, the statutory name-change procedure, only provides a public record of the change; it does not abrogate the common law right (Code Civ. Proc., § 1279.5, subd. (a)). The Webster's definition of "fictitious," which controlled the meaning of section 18200, was "feigned, imaginary, not real, counterfeit, false, not genuine." A name a person has used publicly for years, run for office under previously, and continues to use socially is not fictitious. Morris's continued use of "Yzquierdo" for some purposes (like payroll) did not undo her common law adoption of "Morris." It is common for women to use a married name for some purposes and a maiden name for others, the AG noted, citing case law and a Bustle/Time article discussing the practice. Even setting all that aside, the AG flagged that an Elections Code section 18200 violation requires a criminal conviction before it can trigger a vacancy under Government Code section 1770(h), and Morris had not been convicted. Fox had unsuccessfully tried to get her prosecuted.

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: Can a person change their name in California without going to court?
A: Yes, by long-standing common law. Any competent adult may change their name by general usage or habit, with no statutory or judicial filing required (In re Ross (1937) 8 Cal.2d 608, 609; Application of McGehee (1956) 147 Cal.App.2d 25, 26; Turesky v. Superior Court (1950) 97 Cal.App.2d 838). The court-based name-change procedure in Code of Civil Procedure section 1286 is optional. Its function is to create a public record, not to grant a name change that would otherwise be unavailable (Weathers v. Superior Court (1976) 54 Cal.App.3d 286, 288-289). Code of Civil Procedure section 1279.5(a) explicitly preserves the common law right.

Q: What is "fictitious" under Elections Code section 18200?
A: The statute makes it a felony to subscribe a fictitious name to a nomination petition, or to subscribe another person's name. The opinion adopted the dictionary meaning: feigned, imaginary, not real, counterfeit, false, not genuine. Webster's definition guided the legislative intent inquiry. A name a person has actually used publicly, including in past elections, is not fictitious. The opinion contrasted People v. Slattery (1943) 59 Cal.App.2d 451 (a name with no underlying account or arrangement was prima facie fictitious in a forgery prosecution) and People v. Ryan (1925) 74 Cal.App. 125 (a person could lawfully adopt a name and transact personal business under it absent fraud).

Q: Does it matter that Morris uses different names for different purposes?
A: Not as a matter of California name law. People often use a maiden name professionally and a married name socially, or vice versa. The AG cited Weathers (a woman who used her maiden name during marriage could petition for divorce under that name) and a Ninth Circuit observation that "a woman may use her married name for social purposes and her maiden name for business or professional purposes" (United States v. El Beialy (9th Cir. 2013) 539 Fed.Appx. 791, 795). Many people retain a former spouse's name after divorce. The opinion declined Fox's claim, unsupported by authority, that "common law procedure requires that a person only use one name at a time."

Q: Did the AG decide Morris was not in violation of any rule?
A: The opinion found no substantial issue of fact or law requiring judicial resolution and no public interest in expending judicial resources on the dispute. It noted but did not rest on a separate problem with Fox's theory: a vacancy under Government Code section 1770(h) only arises after a conviction under Elections Code section 18200, and Morris had not been convicted. Fox had repeatedly tried to get a prosecutor to charge her, without success.

Q: What does this opinion mean for someone running for local office under a different name?
A: Historically, the opinion shows that California recognized a wide latitude for candidates to use a name they were already publicly known by, even without a court-ordered name change. Today's election officials, however, may apply different procedural requirements. The opinion is a 2018 take on the legal substance; current ballot-name regulations, candidate-statement procedures, and any relevant Elections Code amendments should be checked before relying on this opinion as a guide to current ballot-name practice.

Q: How does the AG decide quo warranto leave-to-sue?
A: Two-step analysis. The application must (1) raise a substantial issue of fact or law warranting judicial resolution and (2) show that granting leave will serve the public interest (Rando v. Harris (2014) 228 Cal.App.4th 868, 873; 95 Ops.Cal.Atty.Gen. 50, 51 (2012)). Allegations must rest on direct evidence, not information and belief. Speculation does not suffice. Here, the undisputed facts answered the legal question without needing a trial.

Background and statutory framework

Code of Civil Procedure section 803 codifies quo warranto, allowing the AG to sue a person who unlawfully holds public office. A private relator must obtain the AG's leave first.

Elections Code section 18200 makes it a felony to subscribe a fictitious name to a nomination petition. Government Code section 1770(h) lists, as a vacancy-causing event for elected office, "his or her conviction of a felony or of any offense involving a violation of his or her official duties."

California's name law recognizes both a statutory procedure (Code Civ. Proc., § 1286) and a common law right of self-designation by general usage (In re Ross (1937) 8 Cal.2d 608). Code of Civil Procedure section 1279.5(a) confirms that the statutory procedure does not abrogate the common law right.

The Trinity County Supervisor seat at issue had been held by Jeffrey Morris until 2008, when he ran for U.S. House. Judy Morris won the seat that year, served, and was elected to a full term in 2012. Sometime after the 2012 election, the Morrises divorced. Judy Morris ran for re-election in 2016 under "Morris" and won 71% to 27.7%.

Citations and references

Statutes:
- Code of Civil Procedure section 803 (quo warranto)
- Code of Civil Procedure section 1286 (statutory name-change procedure)
- Code of Civil Procedure section 1279.5(a) (preserving common law name change)
- Elections Code section 18200 (fictitious name felony)
- Government Code section 1770(h) (vacancy on conviction)

Cases:
- Rando v. Harris (2014) 228 Cal.App.4th 868
- In re Marriage of Schiffman (1980) 28 Cal.3d 640
- In re Ross (1937) 8 Cal.2d 608
- Weathers v. Superior Court (1976) 54 Cal.App.3d 286
- People v. Slattery (1943) 59 Cal.App.2d 451
- People v. Ryan (1925) 74 Cal.App. 125
- United States v. El Beialy (9th Cir. 2013) 539 Fed.Appx. 791

Prior AG opinions cited:
- 83 Ops.Cal.Atty.Gen. 136 (2000) (common law name change valid in California)
- 95 Ops.Cal.Atty.Gen. 50 (2012)
- 96 Ops.Cal.Atty.Gen. 48 (2013)
- 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/18-601_1.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; MANUEL M. MEDEIROS, Deputy Attorney General

No. 18-601
August 28, 2018

Proposed relator THOMAS J. FOX has requested leave to sue proposed defendant JUDY MORRIS in quo warranto to oust Morris from the public office of Trinity County Supervisor, on the ground that, in her election documents, she used her married name, "Morris," rather than her birth name, "Yzquierdo," in alleged violation of Elections Code section 18200.

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 Thomas J. Fox (Fox) was one of two candidates on the ballot for Trinity County Supervisor, Electoral District 2, in an election held on July 7, 2016. The other candidate, who won the election, was proposed defendant Judy Morris (Morris). Morris was sworn into office on January 2, 2017. Fox alleges that Morris "has usurped the office of Trinity County Supervisor . . . in that she appeared on the ballot under a name which is not legally her name," in asserted violation of Elections Code section 18200 (hereafter, Section 18200). Fox alleges that Morris's legal name is "Judy Yzquierdo," the name under which she is compensated by Trinity County, not "Morris," which is her married name. Fox seeks leave to file a complaint in quo warranto ousting Morris from office and installing him instead.

The gravamen of Fox's complaint is that, once she was divorced, Morris was not legally permitted to continue to use her married name unless she stopped using her birth name "Yzquierdo" for all purposes, or alternatively, obtained a court order changing her name from "Yzquierdo" to "Morris." Fox argues that, since Morris continues to use "Yzquierdo" for some purposes and has not obtained a court order changing her name, her use of her married name "Morris" for purposes of the 2016 election amounts to use of a "fictitious name" within the meaning of Section 18200. As discussed in further detail below, we disagree and therefore deny Fox's application.

"Quo warranto," literally meaning "by what authority," was a writ at common law, by which the crown instituted a formal inquiry into whether a subject had the right to hold public office. The remedy is currently codified in section 803 of the Code of Civil Procedure, which provides in relevant part:

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 . . . .

A private party seeking to bring such an action must obtain the consent of the Attorney General. In deciding whether to grant leave to sue, we do not resolve the merits of the dispute, but only "decide whether the application presents substantial issues of fact or law that warrant judicial resolution, and whether granting the application will serve the public interest." Morris declined to file a response, so we reach our conclusion based on our analysis of the present application, the undisputed material facts, and the applicable law.

The undisputed material facts are as follows: Since early childhood, Morris's name was Judy Marie Yzquierdo, a name that she continues to use for some purposes. Although Fox alleges that he could find no California record of her marriage, he acknowledges having been introduced to "Jeff and Judy Morris" in May 2009, at which time Jeffrey Morris was the Trinity County Supervisor for Electoral District 2. Judy Morris succeeded to her husband's supervisorial seat in 2010, and was thereafter elected to a full term in 2012. "Shortly after this election, it became public knowledge in the County that Jeffrey Morris and Defendant [Judy Morris] were divorced." Judy Morris ran for election in 2016 using her married name, but she receives compensation from Trinity County under the name "Yzquierdo." Morris has not obtained a court order for a name change.

"Name changes may arise from personal or parental preference, adoption, and other circumstances. Indeed, in California and elsewhere the right of a competent person to choose and change her or his surname cannot lightly be overcome." The common law recognizes the right of any adult person to change his or her name by general usage or habit without the necessity of legal proceedings. Code of Civil Procedure section 1286, which embodies a statutory procedure for change of name, merely provides a public record of the change.

The undisputed facts establish that Morris has been publicly known by her married name, "Judy Morris," for some substantial period of time. Indeed, Fox acknowledges that Morris was elected under that name in 2012. The name, therefore, cannot be said to be "fictitious." Webster's defines "fictitious" as "of, relating to, or characteristic of fiction," and further defines "fiction" as "something invented by the imagination or feigned." One court has defined the term as "that which is not real, but imaginary." In the context of the crime of passing a "fictitious bank bill," the court defined the term as meaning "feigned; imaginary; not real; counterfeit; false; not genuine." Under the facts here and the commonly understood meaning of the term "fictitious," Morris cannot reasonably be said to have used a fictitious name in the 2016 election.

It is of no legal consequence that Morris uses her married name for some but not all purposes, or that she continues to use her married name though she may no longer be married to Jeffrey Morris. It is not uncommon, for example, that women will continue to use their maiden name in their professional status. So, too, many women continue to use their married name even after divorce.

In light of the undisputed facts, proposed defendant's use of her married name "Judy Morris" for election in 2016 cannot reasonably be said to have constituted the use of a "fictitious name" for that purpose, even if she continues to use her birth name "Judy Yzquierdo" for other purposes. There being no substantial issues of fact or law that warrant judicial resolution, it would not serve the public interest to expend scarce judicial resources on pursuing the inquiry. The application for leave to sue in quo warranto is, accordingly, DENIED.