                         TO BE PUBLISHED IN THE OFFICIAL REPORTS


                              OFFICE OF THE ATTORNEY GENERAL

                                        State of California


                                        DANIEL E. LUNGREN

                                          Attorney General


                            ______________________________________

                   OPINION              :
                                        :          No. 96-802
                   of                   :
                                        :          November 20, 1996
          DANIEL E. LUNGREN             :
            Attorney General            :
                                        :
         ANTHONY S. Da VIGO             :
         Deputy Attorney General        :
                                        :
______________________________________________________________________________

               JAMES R. WINSTON has requested this office to grant leave to sue in quo warranto
upon the following:

                                      ISSUE OF FACT OR LAW

                  May an individual, whose residence is situated on both sides of a city's boundaries and
whose principal dwelling is located on the portion of the property outside the city's boundaries, occupy
the office of city council member?

                                            CONCLUSION

                An individual, whose residence is situated on both sides of a city's boundaries and
whose principal dwelling is located on that portion of the property outside the city's boundaries, may
occupy the office of city council member.

                                               PARTIES

               JAMES R. WINSTON ("relator") contends that MARJORIE SMITH ("respondent") is
unlawfully exercising the office of Town Council Member of the Town of Windsor, County of Sonoma.




                                                   1.                                            96-802

                                                MATERIAL FACTS


                  Since June 1978 respondent has owned and resided upon a 19.5 acre parcel in the
County of Sonoma. A creek separates 3.5 acres from the remainder of the parcel. The principal
dwelling unit, a water tower, a detached garage, and a barn are located on the larger segment. A
smaller detached structure, used for sleeping, eating, and other domestic purposes but which lacks
independent bath or kitchen facilities, is situated on the smaller segment. Also located on the smaller
segment is a domestic water well from which the larger dwelling structure obtains its water. The same
electric lines, telephone lines, and power meter serve both the larger and smaller dwelling units.

                In July 1992 the Town of Windsor ("city") was incorporated as a municipality, with the
city's boundary defined in part by the creek dividing respondent's property. The 3.5 acre segment was
incorporated into the city, while the larger segment remains situated in unincorporated territory. At the
time of incorporation, the Sonoma County Assessor assigned separate parcel numbers to respondent's
property, which identified respectively the segment within the city and the segment outside the city.

                 Respondent's property bears a mailing address on a highway within the city, and the
entire property is accessible by a driveway from within the city. Records of the Sonoma County
Registrar of Voters identify the property by its address within the city, and accordingly respondent has
registered to vote and continues to be registered as an elector within the city.

               In December 1994 respondent was elected as a member of the town council after city
and county officials, including the Sonoma County Counsel and Registrar of Voters, determined that
she was properly an elector and registered voter of the city.

                                                     ANALYSIS

                 In deciding whether to grant leave to sue in the name of the People of the State of
California, we consider initially whether there exists a substantial question of law or fact which requires
judicial resolution, and if so, whether the filing of an action in the nature of quo warranto would serve
the overall public interest. (79 Ops.Cal.Atty.Gen. 159, 160 (1996).)

                Relator's application for leave to sue is predicated upon the contention that respondent
resides outside of the boundaries of the city and is therefore ineligible to hold the office of city council
member.

                  1.       Requirement of City Residency

                 It is clear that a city council member of a general law city must reside within the
boundaries of the city. The city in question is governed by Government Code section 34882,1 which
provides as follows:

    1
     Unidentified section references are to the Government Code.


                                                           2.                                       96-802

                "A person is not eligible to hold office as a member of a municipal legislative
        body unless he or she is otherwise qualified, resides in the district and both resided in
        the geographical area making up the district from which he or she is elected and was a
        registered voter of the city at the time nomination papers are issued to the candidate as
        provided for in Section 10227 of the Elections Code."

More generally, subdivision (a) of section 36502 states in part:

                "A person is not eligible to hold office as councilmember, city clerk, or city
        treasurer unless he or she is at the time of assuming the office an elector of the city, and
        was a registered voter of the city at the time nomination papers are issued to the
        candidate as provided for in Section 10227 of the Elections Code."

                An "elector" is "any person who is a United States citizen 18 years of age or older and a
resident of an election precinct at least 29 days prior to an election." (Elec. Code, ' 321.) A
"registered voter" is allowed to "vote at any election held within the territory within which he or she
resides and the election is held." (Elec. Code, ' 2000, subd. (a); see Collier v. Menzel (1985) 176
Cal.App.3d 24, 30; Cothran v. Town Council (1962) 209 Cal.App.2d 647, 661.)

                "Residence" for purposes of voting means a person's "domicile" (Elec. Code, ' 349,
subd. (a)), which is defined as follows:

                "The domicile of a person is that place in which his or her habitation is fixed,
        wherein the person has the intention of remaining, and to which, whenever he or she is
        absent, the person has the intention of returning. At a given time, a person may have
        only one domicile." (Elec. Code, ' 349, subd. (b).)

                 We have previously determined 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. (75 Ops.Cal.Atty.Gen. 26, 28 (1992).) Accordingly, if respondent does not qualify as a
resident of the city, she is not qualified to hold the office of city council member.

                 2.       Residency in Parts of Two Precincts

                 We first examine whether a person's residency for purposes of being an elector and a
registered voter may be affected by his or her property's "partition" by a political boundary. Here
respondent's property was in effect "divided" by the city's boundary at the time of incorporation in
1992. The property is required by law to be in separate precincts. (Elec. Code, ' 12222 ["No precinct
shall be established so that its boundary crosses the boundary of any . . . incorporated city . . ."].)2


    2
     Whether some restrictions may be placed upon respondent preventing her from switching back and forth between the
two precincts--for administrative or other reasons--is beyond the scope of this opinion.


                                                         3.                                                 96-802

                  On the other hand, we have no doubt that respondent's "domicile" is located within the
city's limits, and thus she may qualify as an "elector" and "registered voter" of the city for purposes of
holding city office under the governing statutes. She "inhabits" the entire 19.5 acres as her residence
and intends to remain. (See Collier v. Menzel, supra, 176 Cal.App.3d at pp. 30-31; Bayshore Sanitary
District v. City of Brisbane (1965) 232 Cal.App.2d 259, 265-267; cf. City of Port Heuneme v. City of
Oxnard (1959) 52 Cal.2d 385; Cothran v. Town Council, supra, 209 Cal.App.2d 647; People v. City of
Richmond (1956) 141 Cal.App.2d 107.) She qualifies to hold city office under the literal terms of
sections 34882 and 36502.3

                The fact that respondent's domicile is also partly located outside the city's boundaries is
not a disqualifying factor under any express statute. It is true that in Gray v. O'Banion (1913) 23
Cal.App. 468, 478, the court quoted from a text containing the following interpretive principles:

                  "`"When the boundary line between two localities passes through the residence
         of one whose domicile is at issue, if the portion of the house on one side of the line is
         sufficient to constitute a habitation by itself while the other portion is not, the first will
         be considered the domicile. If the line divides more equally, then that portion is
         deemed the domicile where the occupant mainly and substantially performs those
         offices which characterize his home (such as sleeping, eating, sitting, and receiving
         visitors); but in the event of a still closer division, then that part where he habitually
         sleeps is so considered in the absence of other facts showing a positively contrary
         intention."'"

The foregoing principles have been superseded by statutory law (see Civ. Code, ' 22.2;
74 Ops.Cal.Atty.Gen. 86, 88 (1991)); Elections Code section 2034 provides:

                  "A person domiciled in a house or apartment lying in more than one precinct
         shall be registered as domiciled in the precinct designated by the county elections
         official on the basis of the street address or other precinct the county elections
         official considers appropriate unless the person requests . . . that he or she wishes to
         be domiciled for registration purposes in another precinct in which his or her house
         or apartment lies. . . ."

While this statutory language refers to "a house or apartment," it does not expressly require the
dwelling to be comprised of a single, structurally integrated unit. Here respondent's larger and
smaller dwelling units, served by the same telephone and power lines and used from time to time
for sleeping, eating, and other domestic purposes, may well comprise an integral dwelling place.
Applying Elections Code section 2034 under these circumstances, we do not find a compelling
basis for dividing respondent's residence into multiple residences, necessitating a determination of
domicile as between them. Rather, as provided in the statute, the street address (which in this case
    3
     The administrative action of the Sonoma County Assessor, assigning two parcel numbers to respondent's property for
purposes of assessing taxes, does not effectuate a subdivision of the property. (62 Ops.Cal.Atty.Gen. 147, 149 (1979).) The
property remains an integral place for purposes of determining respondent's "domicile."


                                                            4.                                                    96-802

lies within the city) or the precinct requested by the individual in question (which in this case is
located within the city) may determine the place of respondent's domicile for elector and voter
registration purposes.

                In any event, no substantial question of law is presented by relator's application with
respect to respondent's place of domicile for purposes of sections 34882 and 36502.

               3.      The Public Interest

                Finally, it is well settled that the mere existence of a justiciable issue does not
establish that the public interest requires a judicial resolution of the dispute or that the Attorney
General is required to grant leave to sue in quo warranto. (75 Ops.Cal.Atty.Gen. 287, 289 (1992).)
 As stated in City of Campbell v. Mosk (1961) 197 Cal.App.2d 640, 650: "The exercise of the
discretion of the Attorney General in the grant of such approval to sue calls for care and delicacy.
Certainly the private party's right to it cannot be absolute; the public interest prevails."

                We believe it would not be in the public interest to burden the parties, the city, and
the courts with this dispute, and that a contrary disposition would discourage participation by
citizens in holding public office. (74 Ops.Cal.Atty.Gen. 26, 29 (1991).) Further, we are mindful
of the general principle that ambiguities concerning the right to hold public office should be
resolved in favor of eligibility. The court stated in Helena Rubenstein Internat. v. Younger (1977)
71 Cal.App.3d 406, 418:

                "We consider disqualification from public office a significant civil disability.
        In California, the right to hold public office has long been recognized as a valuable
       right of citizenship. In 1869, in People v. Washington, 36 Cal. 658, 662, our
       Supreme Court declared that `[t]he elective franchise and the right to hold public
       offices constitute the principle political rights of citizens of the several States.' In
       Carter v. Com. on Qualifications etc., 14 Cal.2d 179, 182, the court pointed out:
       `[T]he right to hold public office, either by election or appointment, is one of the
       valuable rights of citizenship. . . . The exercise of this right should not be declared
       prohibited or curtailed except by plain provisions of law. Ambiguities are to be
       resolved in favor of eligibility to the office. . . .' (Italics added.) More recently, the
       high court, citing Carter, has termed the right to hold public office a `fundamental
       right.' (Zeilenga v. Nelson, 4 Cal.3d 716, 720; Fort v. Civil Service Commission, 61
       Cal.2d 331, 335.) Thus, any ambiguity in a constitutional provision calling for
       forfeiture of an existing office and disqualification from holding public office should be
       resolved in favor of continued                  eligibility. . . ."

               The proposed action would not be in the public interest, and leave to sue is therefore
DENIED.

                                               *****


                                                  5.                                                96-802

