Can a California county supervisor be appointed to a vacancy if they only moved into the district four days before the appointment, and their family stays in the home they came from?
Question
Should the Attorney General grant leave to sue David Kyle Brown in quo warranto over allegations he doesn't satisfy the legal residency requirements for serving on the Alameda County Board of Supervisors, District 3?
Conclusion
Substantial issues of law and fact exist about Brown's eligibility, and the public interest favors a court resolving them. Leave to sue is granted.
Official Citation: 105 Ops.Cal.Atty.Gen. 111
Plain-English summary
After District 3 Supervisor Wilma Chan was killed by a car in November 2021, the Alameda County Board of Supervisors had to fill the vacancy. Chan's chief of staff, David Brown, sought the appointment. At the time of Chan's death, Brown was living with his wife and two children in Walnut Creek (Contra Costa County), in a house he and his wife had owned since 2010.
Four days before the board's vote, Brown moved into a friend's one-bedroom apartment in Oakland (in District 3) and changed his voter registration. The board appointed him on November 16, 2021. About a month later he moved to his own one-bedroom apartment in the same complex, on a 13-month lease ending one week after the appointment term expires. His wife and children stayed in Walnut Creek.
The Alameda County Taxpayers' Association argued that Brown failed two residency requirements:
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One-year prior-residency rule. Section 2.04.020 of the county administrative code says each board member "must have been [an elector of his district] for at least one year immediately preceding his election." Brown had been in District 3 for four days when appointed, not one year. The fight: does "preceding his election" cover appointed members or only elected ones?
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In-district residency during incumbency. The county charter says each member "must reside [in the district] during his incumbency." Under California law, "reside" means "domicile", a person's fixed habitation, the place they intend to remain and to return to when absent. Brown had a six-decade history with Walnut Creek and a family rooted there. He took an Oakland one-bedroom on a 13-month lease ending right at the end of his appointment. Did that change his domicile?
The AG said both questions are substantial enough for a court. On the first, "elect" sometimes carries a narrower meaning (chosen by voters) and sometimes a broader one (appointed or selected); the California Supreme Court has read it both ways depending on context. On the second, the AG had no reason to doubt Brown's stated intent to make District 3 his "permanent home for now," but a court could plausibly infer the move was for a fixed and temporary purpose, with the family home in Walnut Creek as the place he would return to when his term ended. That ambiguity warrants litigation.
The AG noted that he (Rob Bonta) had recused himself; the Chief Deputy Attorney General (Venus D. Johnson) ran the decision.
What this means for you
If you're appointed to fill a vacancy in a charter county
A four-day move to a friend's apartment is not a safe foundation for incumbency residency. If your family stays at your old home, your work and social life remain there, and your new lease tracks the length of your appointment, expect a domicile challenge. The principle is "union of act and intent": both physical presence in the new place and an intention to remain at least indefinitely. Saying "I will continue living here at least until my term ends" is exactly the kind of fixed, temporary intent that domicile law disqualifies.
If you are serious about the appointment, plan the move before the vacancy is filled. Lease (or buy) at least a year, register everything (voter registration, DMV, taxes, healthcare, mailing address) at the new address, and consider whether your family is moving with you. The presumption in California Government Code section 244 is that family domicile follows the person. If your family stays put, your domicile claim is uphill.
If you're a charter county or charter city writing or amending residency rules
This opinion is a flashing light: if your administrative code or charter mixes "elected" with "each member" in a single sentence, you have a built-in ambiguity for appointees. The fix is to add explicit language: either "each member, whether elected or appointed" or separate sentences for the two paths. The same applies to other eligibility rules (citizenship duration, age, criminal record). Resolve the ambiguity in code before someone resolves it in court.
If you're a candidate considering appointment to a vacancy
Move first, accept the seat second. Do it with paperwork. The four-day move that Brown made is the textbook example of what a quo warranto challenger will point to.
If you're a voter or watchdog evaluating an appointment
The procedural path is quo warranto, requested via the AG. The AG screens for substantial questions and public interest, then a court decides. Expect the case to focus on the appointee's intent (where do they sleep, where do they keep their things, where is their family, where do their bills come) and on the structural ambiguity in the local code (who counts as having "preceded his election"). Domicile is fact-intensive: it's an inference from many small things.
If you're a county counsel briefing a board on a candidate
Run a domicile checklist before the vote. Length and type of new lease, family location, voter registration history, DMV record, prior connections to the district, intent statements in writing. Document each item in the appointment record. A board that votes on a thinly-evidenced domicile claim has set up a quo warranto problem for itself.
Common questions
What's the difference between "residence" and "domicile" in California law?
A person can have multiple residences (any place where they actually live for more than a temporary sojourn) but only one domicile (the fixed habitation they intend to return to). Statutory residency requirements that use "resident" or "reside" almost always mean domicile, per Walters v. Weed (1988) 45 Cal.3d 1.
How do California courts decide where someone is domiciled?
By looking at acts and declarations. Common evidence: voter registration, DMV records, mailing address, tax filings, family location, lease length, where furniture and personal items are kept, where the person sleeps most nights, social and professional ties, intent statements (especially statements made before any litigation began). The decisive element is intent, but intent is read from the cumulative facts.
Is "moving in with the intent to remain at least until my term ends" enough?
Probably not. The case law (DeYoung v. De Young, Glassford's Estate) requires intent to remain "either permanently or for an indefinite time." A fixed end date tied to the office's term is closer to the legal definition of "temporary sojourn," especially when the person's family stays in the prior home.
Does the one-year prior-residency requirement apply to appointed officers in Alameda County?
That is one of the substantial questions the AG flagged. The administrative code says "each member" must have been an elector for at least one year immediately preceding "his election." Whether appointed members are covered by "his election" is unresolved. The California Supreme Court in Barrett v. Hite (1964) read "elect" to include appointment in a different context, but the AG declined to predict which way an Alameda County court would go.
What about Government Code section 25041's 30-day rule?
Section 25041 applies only to elections by voters, not to appointments, because it ties its 30-day requirement to a deadline for filing nomination documents. The AG also said it is doubtful that section 25041, as a state-law rule, would override the eligibility provisions in a charter county like Alameda whose charter and administrative code already address supervisor qualifications.
If a court doesn't rule before the term ends, does the case become moot?
Possibly. The AG noted timing alone is rarely a basis for denying leave to sue and that the office had granted leave on shorter timelines in other cases (e.g., the Wesson opinion 22-304, with about ten months remaining; opinion 22-302, with less than six months remaining). But practically, a court could decline to rule on issues that will be moot by the time the appellate process completes.
Background and statutory framework
Quo warranto authority and standard:
- Code Civ. Proc. § 803 (private quo warranto requires AG leave; covers persons who "usurp, intrude into, or unlawfully hold" any public office)
- Rando v. Harris (2014) 228 Cal.App.4th 868 (AG's three-part test)
- Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221 (residency claims are cognizable in quo warranto)
Charter county home rule:
- Cal. Const. art. XI, § 4 (governing charter counties)
- Penrod v. County of San Bernardino (2005) 126 Cal.App.4th 185 (home rule definition)
- Dibb v. County of San Diego (1994) 8 Cal.4th 1200 (charter county powers)
Domicile rules:
- Cal. Gov. Code § 244 (basic domicile rules: physical presence + intent; family location presumption; one domicile at a time)
- Cal. Elec. Code §§ 321, 349, 2024, 2027, 2028 (electors, residency definitions, change-of-domicile mechanics)
- Walters v. Weed (1988) 45 Cal.3d 1 (residence as domicile in statutory context)
- DeYoung v. De Young (1946) 27 Cal.2d 521 (intent to remain "permanently or indefinitely")
- DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260 (party asserting change has burden of proof)
Local provisions:
- Alameda County Charter, § 4 (each member must be an elector and reside in district during incumbency)
- Alameda County Administrative Code, § 2.04.020 (one-year prior-residency requirement; "no supervisor shall, during the term... be eligible for appointment to any office or position carrying compensation")
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/22-303_0.pdf
Original opinion text
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
VENUS D. JOHNSON
Chief Deputy Attorney General
OPINION
of
VENUS D. JOHNSON
Chief Deputy Attorney General
MARC J. NOLAN
CATHERINE BIDART
Deputy Attorneys General
No. 22-303
June 17, 2022
The ALAMEDA COUNTY TAXPAYERS' ASSOCIATION, INC.,
MARCUS CRAWLEY, DAVID DENTON, STEVE SLAUSON, and ROBERT
TUCKNOTT, have applied for leave to sue DAVID KYLE BROWN in quo warranto to
remove him from his public office as a member of the Alameda County Board of
Supervisors, representing District 3. The application asserts that Brown is ineligible to
serve on the Board of Supervisors because he did not and does not satisfy the legal
residency requirements for that office.
We conclude that there are substantial issues of law and fact as to whether
Brown is eligible to hold office on the Alameda County Board of Supervisors and,
because the public interest will be served by allowing the proposed quo warranto action
to proceed, the application for leave to sue is GRANTED.
(Attorney General Rob Bonta voluntarily recused himself from personal involvement in
this matter. Accordingly, the Chief Deputy Attorney General has exercised and will
continue to exercise final authority over the Department's decisions in this matter.)
INTRODUCTION AND BACKGROUND
On November 3, 2021, Wilma Chan, the Supervisor for District 3 on the Alameda
County Board of Supervisors, was struck by a car and ultimately died from her injuries,
creating a vacancy on the Board of Supervisors. Shortly after, proposed defendant
Brown, who was Supervisor Chan's chief of staff, decided to seek appointment to serve
the remainder of Chan's term. At the time of Chan's death, Brown was living in a house
in the City of Walnut Creek, in Contra Costa County, with his wife and two minor
children.
After Chan's death, Brown began taking a series of steps to establish residency in
the City of Oakland, in Alameda County's District 3. According to his sworn statements,
Brown moved into a friend's apartment in Oakland on November 12, 2021.
Approximately one month later, Brown moved into his own apartment in the same
apartment complex. Brown also changed his voter registration and various mailing
records to those Oakland addresses. Meanwhile, Brown's wife and children continued to
reside in their Walnut Creek home.
On November 16, 2021, the Board of Supervisors voted to appoint Brown to the
vacancy created by Chan's death. Brown's appointment to the Board will last until the
end of Chan's term on January 2, 2023. At that time, the District 3 candidate elected in
the upcoming election cycle will assume the District 3 seat on the County Board. Brown
is not a candidate in the upcoming election cycle.
In March 2022, the applicants applied for leave to sue Brown in quo warranto.
They contend, among other things, that Brown is ineligible to serve on the Alameda
County Board of Supervisors because he did not, and still does not, meet the legal
residency requirements for holding that office. For that reason, they seek to remove
Brown from his seat on the Board of Supervisors.
Brown urges us to deny the application, asserting that he is currently and was at
the time of his appointment a resident of Alameda County District 3, and that he has
therefore satisfied all applicable residency requirements for his position on the Board of
Supervisors.
ANALYSIS
Quo warranto is a civil action used, among other purposes, to challenge an
incumbent public official's right or eligibility to hold a given public office. This form of
action is codified in section 803 of the Code of Civil Procedure, which provides that "[a]n
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."
Where, as here, a private party seeks to pursue a quo warranto action in superior
court, that party (known in this context as a relator, or proposed relator) must first apply
for and obtain the Attorney General's consent to do so. In determining whether to grant
that consent, we do not attempt to resolve the merits of the controversy. Rather, we
consider (1) whether quo warranto is an available and appropriate remedy; (2) whether
the proposed relator has raised a substantial issue of law or fact that warrants judicial
resolution, and (3) whether authorizing the quo warranto action will serve the public
interest. As discussed below, the answer to all three questions is "yes," and we therefore
grant leave to sue.
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Availability of Quo Warranto Remedy
First, quo warranto is an available and appropriate remedy here. The proposed
relators contend that Brown, by failing to meet the legal residency requirements for the
office to which he was appointed, is unlawfully usurping, intruding into, or holding
public office on the Alameda County Board of Supervisors within the meaning of Code
of Civil Procedure section 803. We have repeatedly treated the alleged failure to meet
legal residency requirements to hold a particular public office as cognizable grounds for a
suit in quo warranto. -
Substantial Issues Regarding Legal Eligibility to Serve
We next examine whether there are substantial issues of law or fact as to whether
Brown has satisfied the legal residency requirements for serving on the Alameda County
Board of Supervisors. We believe that there are. Alameda County is a charter county,
and its charter and county administrative code set forth residency requirements for
members of the county Board of Supervisors. Section 4 of the charter provides in
relevant part that each board member "must be an elector of the district which he/she
represents [and] must reside therein during his/her incumbency[.]" In addition, section
2.04.020 of the county administrative code states, in part, that each member "must be an
elector of the district which he represents, must reside therein during his incumbency, and
must have been such an elector for a[t] least one year immediately preceding his election,
and that "[n]o supervisor shall, during the term for which he has been elected, or for one
year thereafter, be eligible for appointment to any office or position carrying
compensation and created by the Charter or by ordinance."
A Substantial Issue of Law Exists as to Whether the One-Year Prior Residency
Requirement Applies to Brown
Taking the one-year prior-residency requirement first, the parties disagree as to
whether it applies to an appointee such as Brown. If it does, then it would disqualify
Brown from holding office because he did not move to Alameda County until November
12, 2021, four days before his appointment to the Alameda County Board of Supervisors.
But if the prior-residency requirement applies only to officials who are elected, and not to
those who are appointed, then it has no effect on the question of Brown's eligibility to
serve on the Board of Supervisors.
As mentioned, this prior-residency requirement comes from the county
administrative code, which specifies that "[e]ach member" of the Board of Supervisors
must have been an elector in the member's district for at least "one year immediately
preceding his election." Proposed relators maintain that this requirement literally
applies to each member of the Board of Supervisors, regardless of whether the member is
elected or appointed. As for the phrase "preceding his election," proposed relators note
that the California Supreme Court has explained in comparable circumstances that, while
the meaning of "elect" ordinarily refers to a determination by voters, it may also carry a
broader meaning and refer to a person who is selected, chosen, or appointed. Using the
broader interpretation here would harmonize the terms of the provision and give full
effect to the provision's prefatory and seemingly inclusive subject, "[e]ach member."
It would also avoid the peculiar result that the provision's general prohibition against
supervisors holding another appointed county office or position carrying compensation
during their term or for one year thereafter would not apply to appointees. On the other
hand, Brown argues that the reference to "election" at the end of the provision should be
read according to the term's ordinary meaning as a determination made by the voters,
thereby narrowing the provision's coverage to only elected members, so that the one-year
prior residency requirement would not apply to appointed members like Brown.
In our view, the provision's reference to "each member," on the one hand, and to
an "election," on the other hand, creates an ambiguity. It is not clear whether this
provision applies to a member who did not stand for election. While ambiguities are
ordinarily resolved in favor of eligibility for holding office, we have previously granted
quo warranto applications when faced with eligibility requirements that contained
ambiguous terms and there was a lack of authoritative guidance as to their meaning.
We face a similar scenario here. We therefore conclude that whether the one-year prior
residency requirement applies to Brown presents a substantial issue of law warranting
judicial resolution.
Substantial Issues of Law and Fact Exist as to Brown's Residency During the
Term of His Incumbency
As a separate and independent basis for granting this application, we find that
there are also substantial questions about whether Brown satisfies the residency
requirements that apply during his term of office. The County Charter provides in
relevant part that each board member "must be an elector of the district which he/she
represents [and] must reside therein during his/her incumbency[.]" The parties disagree
about whether Brown has effectively changed his legal residence from Contra Costa
County to Alameda County's District 3 for the purposes of this requirement.
In this context, an "elector" refers to a person who is a citizen at least 18 years old
and is a "resident" of a precinct in this State. And as the California Supreme Court has
explained, statutory residency requirements, even those that use the unmodified and
more general terms "resident" or "residence", refer to the legal concept known as
"domicile." A domicile is a person's fixed habitation where the person intends to
remain, and intends to return whenever absent. In other words, "[i]t 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." A residence, in contrast,
"connotes any factual place of abode of some permanency, more than a mere temporary
sojourn."
For this reason, a person may have multiple residences, but may have only one
domicile at any given time. Thus, a domicile "cannot be lost until another is gained."
Once established, a domicile is presumed to continue until it is shown that a new
domicile has been acquired. To change domicile requires a "union of act and intent."
A person must intend to acquire a new domicile and physically move there to effectuate
the change. The party asserting a change in domicile, here, Brown, has the burden of
proving such a change.
The determination of domicile is a mixed question of fact and law which may
involve many factors, such as an official's acts and declarations, 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 domicile of a person's family is
generally deemed to be that person's domicile. Thus, the Elections Code provides that
"[i]f a person has a family fixed in one place, and the person does business in another
place, the former is the person's place of domicile." However, if a person "has taken up
an abode in another place with the intention of remaining, and the person's family does
not so reside with the person, the person is a domiciliary where the person has so taken
up the abode." As to one's "intent to remain" in this context, our Supreme Court has
recognized that the "acquisition of a new domicile is generally understood to require an
actual change of residence accompanied by the intention to remain either permanently or
for an indefinite time without any fixed or certain purpose to return to the former place of
abode."
With these principles in mind, we now turn to the question of whether Brown has
maintained a domicile in District 3 "during his[] incumbency," as required by the County
Charter. On November 12, 2021, Brown changed his voter registration residence
address from the Walnut Creek family home, which Brown and his wife had purchased in
2010, to an apartment located in Oakland, within Alameda County's District 3. In his
sworn statement submitted with his opposition to the present application, Brown states
that, on that same date, he also changed his address with the Department of Motor
Vehicles and physically moved into the Oakland apartment. Brown explains that a friend
was already leasing the one-bedroom apartment, but was staying elsewhere, and agreed
that Brown could stay in his apartment. Brown and his friend executed a lease
"addendum" adding Brown as a resident, along with his friend, who remained on the
lease. Brown did not assume the lease, which specified a month-to-month tenancy, on
his own. Brown also states that he changed his address for county records and
"medical/healthcare items" and to this apartment's address.
Brown recounts that, on December 11, 2021, he moved to another one-bedroom
apartment in the same Oakland apartment complex (and still within District 3), and
produced a lease agreement signed by him and the apartment management company. The
lease term is for 13 months, beginning on December 10, 2021, and ending on January 9,
2023, one week after the term of Brown's appointment expires on January 2, 2023.
Shortly after the move to the second apartment, Brown states that he changed his voter
registration to list the new address and did the same for county records. He states that he
pays for the water and trash for this address and that he furnished the apartment with
some items from his Walnut Creek house, some items he bought from his friend in the
prior apartment, and some new items.
Since his move to the district, apart from special occasions such as holidays,
Brown states that he typically spends approximately six nights a week in the district, and
one night a week with his family at their home in Walnut Creek. He also states that he
has regularly spent three afternoons and evenings (Wednesdays, Fridays, and Sundays) at
the home in Walnut Creek; that his wife and children have visited and once stayed the
night at the Oakland apartment; and that his younger child often stays with him there for
part of the weekend.
Brown describes his intent regarding his residency as follows: "My intention when
I moved to [my friend's] Oakland apartment was to make the Third District my
permanent home for now." He also states that he currently considers the second
apartment in Oakland to be his home and adds:
I do not know what awaits me after my term as Third District Supervisor
ends, but I am certain I will continue living in Oakland at least until then.
And given my ties to the community which date back to 1992, I would like
to continue serving the community in some capacity. I would be happy to
stay in Oakland after my term ends in January.
As for his family, Brown states that they will not be moving to Oakland, but will
remain permanently where they are, at the Walnut Creek residence.
We have no reason to doubt the sincerity of Brown's acts and stated intent to make
the Third District his "permanent home for now" and at least through the end of his
appointed term on the Board of Supervisors. But as mentioned above, a change in
domicile requires both a physical presence and an intent to remain at the new location
"either permanently or for an indefinite time without any fixed or certain purpose to
return to the former place of abode."
Based on the limited facts before us, we cannot determine whether Brown's acts
and declarations are enough to satisfy the "intent to remain" element of establishing one's
domicile. For example, although other conclusions are possible, it might reasonably be
inferred that the circumstances of Brown's move indicate an intent to domicile in
Oakland for a fixed but temporary period of time, with the eventual intent of returning to
Walnut Creek. Would such a scenario comport with the legal principles governing an
asserted change of domicile? Again, we express no view as to how a court would
ultimately adjudicate this question. We merely conclude that there are substantial
issues of law and fact surrounding Brown's domicile during the term of his incumbency,
and that these issues warrant a judicial resolution.
- The Public Interest Favors Authorizing the Proposed Action
Finally, we conclude that it is in the public interest to have this matter
conclusively resolved through the prescribed legal process of quo warranto. We
generally view the need for judicial resolution of a substantial question of fact or law as a
sufficient "public purpose" to warrant granting leave to sue, absent countervailing
circumstances.
Brown contends that the shortness of time left on his term, which will expire in
early January 2023, and the fact that he is not running for a subsequent term on the Board
of Supervisors, are countervailing circumstances such that granting the present
application would not serve the public interest. We disagree. Although we cannot
control how long it takes for a court to adjudicate a quo warranto proceeding, a court
might well resolve this matter before January 2023. Additionally, we believe that the
public interest would benefit from obtaining clarity on (1) whether the Alameda County
Administrative Code requires each member of the Board of Supervisor to satisfy a one-year prior residency requirement, and (2) whether the acts and declarations here are
sufficient to establish domicile within the particular district.
Accordingly, the application for leave to sue in quo warranto is GRANTED.