                        OFFICE OF THE ATTORNEY GENERAL

                              State of California

                              JOHN K. VAN DE KAMP

                                Attorney General

                      -----------------------------------
                                       :

                   OPINION	            :

                                       : No. 88-792

                      of	              :

                                       : FEBRUARY 17, 1989

             JOHN K. VAN DE KAMP      :

              Attorney General        :

                                       : 

               N. EUGENE HILL         :

         Assistant Attorney General 	 :

                                       :

       ----------------------------------------------------------------


            C.R.E. SMITH filed an application for leave to sue in quo warranto

in the name of the People of the State of California on the relation of Richard

Clements versus proposed defendants William Bennetta, Marlon Malcom, Shirley

Anderson, and Margaret Feldstein.      This application included a Notice of

Application to Sue, a proposed verified Complaint in Quo Warranto, Points and

Authorities for Leave to Sue, a Declaration of William B. Hafferty, and a Proof

of Service of these documents upon the proposed defendants. 


             On February 6, 1987, the proposed defendants submitted a response to

the application for leave to sue. A reply was submitted on March 5, 1987; the

proposed defendants submitted a rebuttal on March 11, 1987. Proposed defendants

were requested to provide additional information by letter dated May 27, 1987,

and both parties responded to a request for information concerning the bond issue

and recall election, said request issued on September 1, 1987. Thereafter, this

matter was taken under consideration by the Attorney General's Office. 


                                   CONCLUSION


It is determined that leave to sue should be denied. 

                          STATEMENT OF MATERIAL FACTS


Background:


            On or about April 24, 1984, the Board of Supervisors of the County

of Sonoma adopted a resolution ordering the formation of the Timber Cove County

Water District, formally confirming the April 10, 1984 election of each of the

proposed defendants as directors of said district.     The proposed defendants

entered into possession of said offices on that date and have continued in

possession and have exercised the duties of said offices to the present date. 


            A controversy presently exists within the Timber Cove Water District

concerning a proposed expansion and improvement of the water system at a cost of

approximately $1.8 million. In January of 1987 improvement bonds were issued and

liens against the lots were recorded on February 2, 1987. On September 22, 1987,

the proposed defendants were the subjects of a recall election. The voters of

the Timber Cove Water District chose to retain all four directors. Two of the

proposed defendants have since faced their electorate and been returned to office

(Anderson and Feldstein). 





                                       1	                                 88-792

Proposed Defendant Bennetta:

            Proposed defendant Bennetta first registered to vote in Sonoma County

on April 8, 1980. He owns a two-bedroom home at 22210 Umland Circle in Timber

Cove, and claims a homeowner's property tax exemption on the dwelling.        Mr.

Bennetta is the registered owner of a 1978 Toyota pickup truck. His registration

of the vehicle with the Department of Motor Vehicles shows an address of P.O. Box

26603 in San Francisco, and that the vehicle is garaged primarily at 2210 Umland

Circle in Timber Cove. 

            Mr. Bennetta is listed in the San Francisco phone book with an

address of 3515 Fillmore Street.     Mr. Bennetta declares that he maintains a

studio apartment at that address for business purposes, and that he shares such

apartment on an alternating basis with another resident of Sonoma County. Mr.

Bennetta spends occasional evenings there while on business. He does not claim

a renter's credit with the Franchise Tax Board on such address. In response to

an inquiry into the percentage of time he spent at Timber Cove between May 1986

and May 1987, Mr. Bennetta declared that he spends the greater degree of time not

in Timber Cove or San Francisco but at a friend's home in Petaluma. No further

information was provided with respect to this Petaluma abode. 


            Mr. Bennetta utilizes the previously referenced post office box in

San Francisco for all of his mail. His personal stationary shows an address in

the upper left-hand corner of 22210 Umland Circle in Timber Cove, and in the

upper right-hand corner of P.O. Box 26603 in San Francisco. It is Mr. Bennetta's

practice to type in "Address for mail" adjacent to the post office box listing.


            The proposed relator claims, through the declaration of private

investigator William B. Hafferty, that numerous neighbors, associates and people

who work with Mr. Bennetta all contend that his principal residence is in San

Francisco. None of these individuals is named; however, one is listed as the

Public Information Officer for Pacific Discovery magazine, a journal to which

Mr. Bennetta has submitted articles. Mr. Bennetta contends that there is no

public information officer for such magazine, and that no one associated with

such journal has sufficient contact with him to know his principal residence. 


            Mr. Bennetta's term on the board expires in 1989. 


Proposed Defendant Malcom:

            Proposed defendant Marlon Malcom owns a residence at 22174 Coast

Highway in Timber Cove, and he claims a homeowner's property tax exemption on

this dwelling. He receives his mail at a post office box in Duncan Mills, which

address is listed with the Department of Motor Vehicles for the registration of

his 1971 Dodge vehicle. He has been registered to vote in Sonoma County, at the

Timber Cove address, since October of 1983. 

            Mr. Malcom maintains a one-bedroom apartment for use an office at

1725 Jones Street in San Francisco. He has been listed in the San Francisco

telephone book at this address. He contends that he only occasionally spends

nights there when he is in San Francisco on business. 

            Mr. Malcolm's term on the board expires in 1989. 


Proposed Defendant Anderson: 

            Proposed defendant Shirley Anne Anderson is the owner of a home at

22070 Highway One in Timber Cove. She became sole owner of the property in 1983





                                       2                                  88-792

pursuant to a divorce decree. Since January, 1984, she has been registered to

vote in Sonoma County, listing the Timber Cove property as her residence. 

            At the time of her divorce, Ms. Anderson and her ex-husband had

ownership interests in four properties besides the Timber Cove home:           a

condominium in Boulder, Colorado, a house in Connecticut, an interest in an

office complex in San Rafael, and a house in San Geronimo. It appears that prior

to her divorce, Ms. Anderson and her husband primarily resided at the San

Geronimo home. 

            During and following her divorce proceeding, Ms. Anderson had a

series of temporary residences throughout Marin County. The May, 1986, Marin

County telephone book lists an address for her at 2036 Paradise Drive in Tiburan,

a residence she claims she maintained between August 1, 1985, and March, 1986.


            In March of 1986 she moved into a home she owns in San Geronimo,

separate from the one she and her ex-husband had previously owned. Tenants who

had been living at the property had vacated in February of 1986 due to storm

damage. Ms. Anderson contends she is merely staying at the property pending

extensive repairs.   In addition to her Timber Cove and San Geronimo homes,

Ms. Anderson has a one-half ownership in a condominium in Novato.


            Ms. Anderson utilized her homeowner's property tax exemption for her

Novato property between 1983 and March of 1985. Since that time, it has been

taken on the Timber Cove property. She has not utilized her renter's credit at

any of the aforementioned locales. 

            Commencing in 1976, and excepting certain periods of 1979 and 1980,

Ms. Anderson has been employed by the Marin County Assessor's Office in San

Rafael. She claims that at the present time she cannot find suitable work for

her skills at Timber Cove. She states that she spends at least one weekend per

month at Timber Cove in order to attend Board meetings. 


            Ms. Anderson's term on the board expires in 1991. 


Proposed Defendant Feldstein: 

            Proposed defendant Margaret Feldstein is the owner, along with

husband Milton Feldstein, of a home on Bufano Court in Timber Cove. They also

own a home on Cedarberry Lane in San Rafael.       Margaret Feldstein has been

registered to vote in Sonoma County since January 11, 1984. Although proposed

relator contends that she did not vote in the November, 1986, general election,

Ms. Feldstein avers that she did so by way of absentee ballot. 


            Milton Feldstein works in San Francisco and frequently travels. He

took the couple's homeowner's property tax exemption on the San Rafael property,

is registered to vote there, and has registered two vehicles at that locale.

Ms. Feldstein has been retired since 1982. She travels extensively, both with

and without her husband. She contends that she spends at least one weekend per

month at Timber Cove in connection with Board meetings, and also spends holidays

and her husband's vacation time there. 

            Ms. Feldstein's term on the board expires in 1991. 


                    CONTENTIONS OF THE PROSPECTIVE PARTIES

            The proposed relator contends that none of the proposed defendants

are residents of Timber Cove, and therefore they are not "voters" within their





                                       3                                  88-792

election precincts and not qualified to be directors per section 30500 of the

Water Code. 

            The proposed defendants contend that their intent is for Timber Cove

to be their domicile and therefore they are lawful domiciliaries of Timber Cove,

and duly elected and serving members of the Timber Cove Water District. 


                                     ANALYSIS

                                         I

                            CRITERIA FOR QUO WARRANTO


             Quo warranto actions are commenced in the interest of the public to

redress wrongs which injuriously affect the public.     City of Campbell v. Mosk

(1961) 197 Cal.App.2d 640, 648-50; People v. Lowden (1885) 2 Cal.Unrep. 537, 542.

In deciding whether to issue leave to sue, the basic question is whether a public

purpose would be served. As stated in 39 Ops.Cal.Atty.Gen. 85, 89 (1962):

             "In deciding whether to grant or deny leave to sue, the

      Attorney General must not only consider the factual and legal

      problems involved, but also the overall public interest of the

      people of this state . . ." 


              Or as stated in 35 Ops.Cal.Atty.Gen. 123, 124 (1960): 


               "This office has the duty to conduct a preliminary

      investigation of proposed quo warranto litigation to determine

      whether a substantial issue of fact or law exists which should be

      judicially   determined   (11   Ops.Cal.Atty.Gen.   182,   183;   27

      Ops.Cal.Atty.Gen. 33, 35), and leave should be granted only if there

      is some public interest to be served. (       People v. Bailey, 30

      Cal.App. 581, 584.)"


            See also 67 Ops.Cal.Atty.Gen. 151 (1984); 40 Ops.Cal.Atty.Gen. 78,

81 (1962); 37 Ops.Cal.Atty.Gen. 172, 175 (1961).         The "public purpose"

requirement has been interpreted as requiring "a substantial question of law or

fact which calls for judicial decision." 67 Ops.Cal.Atty.Gen. 151, 153 (1984);

25 Ops.Cal.Atty.Gen. 237, 240 (1955). 


            In deciding whether or not to grant leave to sue, this office does

not reach a determination concerning which party should or is likely to prevail

before a court. As stated at 12 Ops.Cal.Atty.Gen. 340, 341 (1949): 

           "[I]n acting upon an application for leave to sue in the name

      of the people of the State, it is not the province of the Attorney

      General to pass upon the issues in controversy, but rather to

      determine whether there exists a state of facts or question of law

      that should be determined by a court in an action quo warranto; that

      the action of the Attorney General is a preliminary investigation,

      and the granting of the leave is not an indication that the position

      taken by the relator is correct, but rather that the question should

      be judicially determined and that quo warranto is the only proper

      remedy." 


            Thus, in reviewing applications for leave to sue in quo warranto,

this office addresses three fundamental questions:


              1. Is quo warranto the proper remedy to resolve the issues which are

presented?





                                         4                                 88-792

             2.   Has the proposed relator raised a substantial question of law or

fact?

             3. Would the public interest be served by judicial resolution of the

question?

            All three questions must be resolved in the affirmative in order for

this office to grant leave to sue. 

             In determining whether to issue or to deny leave to sue, the Attorney

General is accorded broad discretion.      This discretion is derived from the

statute. Code of Civil Procedure section 803 provides that the Attorney General

"may" bring the action on his or her own information or on complaint of a private

party, and it "must" be brought when the Attorney General "has reason to believe"

that the appropriate conditions exist or when directed to do so by the Governor.

The use of the word "must" in the latter portion of the provision does not create

a mandatory duty due to the qualifying language that the Attorney General must

have "reason to believe" that the appropriate conditions exist. 8 Witkin, Cal.

Procedure (3d Ed. 1985) Extraordinary Writs, section 7 at p. 646; International

Association of Fire Fighters v. City of Oakland, supra, 174 Cal.App.3d 687, 697.

Hence, the Attorney General "has discretion to refuse to sue when the issue is

debatable". Id.


                                         II

                        IS QUO WARRANTO THE PROPER REMEDY?


            The first issue to be resolved is whether quo warranto is the proper

remedy to test the title to the office of member, Board of Directors, Timber Cove

Water District. 


             As noted above, applications for leave to sue in quo warranto are

governed by the provisions of Code of Civil Procedure section 803, which provides

in pertinent part as follows: 


             "An action may be brought by the attorney-general, in the name

      of the people of this state, upon his own information, or upon the

      complaint of a private party, against any person who usurps,

      intrudes into, or unlawfully holds or exercises any public office .

      . ." 

             As indicated by this section, the remedy of quo warranto is available

to resolve the question of title or right to a public office. Housing Authority

v. City Council (1962) 208 Cal.App.2d 599, 603. In fact, quo warranto is the

only proper procedure to determine the right or title to a public office occupied

by a de facto incumbent.     Klose v. Superior Court (1950) 96 Cal.App.2d 913.

Insofar as this application seeks a determination of the right of proposed

defendants to qualify as members of the Board of Directors of the Timber Cove

Water District, quo warranto is appropriate. 

            Leave to sue    in quo warranto, however, will only be granted when an

application for leave to    sue presents a substantial issue of law or fact which

it would be in the public   interest to determine judicially. 35 Ops.Cal.Atty.Gen

123, 124 (1960); 11 Ops.    Cal.Atty.Gen. 182, 183 (1948). 





                                         5                                 88-792

                                       III

                   ARE THERE JUSTICIABLE ISSUES ON THE QUESTION

                   OF PROPOSED DEFENDANTS RESIDENCY? 

            Division 12 of the California Water Code, section 30000 et seq.,

governs county water districts. Section 30500 states that each such district

shall have a board of five directors, "each of whom, whether elected or

appointed, shall be a voter of the district." Section 18 of the Elections Code

defines "voter" as "any elector who is registered under the provisions of this

code." Section 17 of the Elections Code requires an elector to be "a resident

of an election precinct at least 29 days prior to an election." 


            It follows, therefore, that a director of a county water district

must have been a resident of such district at least 29 days prior to being

elected thereto. This is in conformity with previous determinations of this

office which have consistently held that local elective public officers must be

residents of the particular jurisdiction in which they serve.           See 66

Ops.Cal.Atty.Gen. 229 (1983); 47 Ops.Cal.Atty.Gen. 36 (1966). 


            Rules governing determination of "residence" are found in Government

Code section 244. It provides as follows: 


            "(a)   It 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. 


            "(b)   There can only be one residence. 


            "(c)   A residence cannot be lost until another is gained. 


            "(d) The residence of the parent with whom an unmarried minor

      child maintains his or her place of abode is the residence of such

      unmarried minor child. 


            "(e) The residence of an unmarried minor who has a parent

      living cannot be changed by his or her own act. 

            "(f) The residence can be changed only by the union of act
      and intent.

            "(g) A married person shall have the right to retain his or
      her legal residence in the State of California notwithstanding the

      legal residence or domicile of his or her spouse." 

            It has been held that the term "residence" used in section 244 means

"domicile." Walters v. Weed (1988) 45 Cal.3d 1, 7; Smith v. Smith (1955) 45

Cal.2d 235, 239. As such, we are guided by the test for determining domicile,

which "is physical presence plus an intention to make that place his [or her]

home." Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1116. 

            The question of domicile is a mixed question of law and fact. Id.

at 1117. Many factors enter into this equation, including where an individual

is registered to vote and his or her address for mail ( Ballf v. Public Welfare

Department (1957) 151 Cal.App.2d 784, 788-89), where his or her tax returns are

filed (Johnson v. Johnson (1966) 245 Cal.App.2d 40, 44), where an automobile is

registered (8 Ops.Cal.Atty.Gen. 221 (1946)), and where a homeowner's exemption

or renter's credit is taken (Cal. Elec. Code § 211; Fenton v. Board of Directors,

supra, at p. 1112). 





                                        6                                  88-792

            The critical element is one of intent, and while the declarations of

the individual in this regard are important, such declarations are not

determinative. The acts of the individual must be examined as well. Mauro v.

Department of Mental Hygiene (1962) 207 Cal.App.2d 381, 389. 

            We have before us Declarations from each of the office holders so

stating their intent.     In all cases, their expressed intent is that their

domicile or residence be at their Timber Cove home. The declarations also recite

additional actions each have taken that supports that stated intent. Those acts

vary among the four proposed defendants, but each sets forth activity that

implements their declared intent. The proposed realtors cite other facts which

are believed to negate that intent. We find the situation similar to that before

us in 8 Ops.Cal.Atty.Gen 221 (1946). In that opinion, we had presented a member

of a Board of Supervisors who was alleged not to be a resident of his

supervisorial district. The proposed defendant filed a declaration setting forth

his stated intent and recited demonstrated facts which supported it, such as

voter's registration, mail delivery, personal attendance at the address within

the district. The proposed relator filed declarations showing auto registration

outside the district, postal changes of address and others tending to suggest

residency outside the district. 


            We denied the application concluding that the direct evidence

produced by the proposed defendant, when weighed against the evidence offered by

the proposed relator, was not persuasive. That opinion recognized that while a

person may have more than one "residence," a person may have only one domicile.

Fenton, supra, at page 1115. The material submitted by the proposed relator does

establish the fact that each proposed defendant has more than one residence. But

it does not establish the domicile of the proposed defendant. 


            We are mindful of the general principle that ambiguities concerning

the right to hold public office should be resolved in favor of eligibility.

(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 principal political rights of citizens of the

      several States.' In Carter v. Com. on Qualifications etc., 14

      Cal.2d 179, 182 [93 P.2d 140], 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 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 [94 Cal.Rptr. 602, 484 P.2d 578]; Fort v. Civil Service

      Commission, 61 Cal.2d 331, 335 [38 Cal.Rptr. 625], 392 P.2d 385].)

      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.

      . . ." ( Helena Rubenstein Internat. v. Younger, supra, 71

      Cal.App.3d at 418.) 

            We see no justiciable controversy over the proposed defendants'

domicile.   The criteria to establish domicile in accord with the recognized

standard has been met by the proposed defendant by facts that are not in dispute.

While other facts are given to us, we do not believe that makes for a controversy





                                       7                                  88-792

appropriate for judicial review. 8 Ops.Cal.Atty.Gen 221, supra; c.f. Fenton v.

Board of Directors, supra, 156 Cal.App.3d 1107.

                                       IV

                     WOULD THE PUBLIC INTEREST BE SERVED BY

                    JUDICIAL RESOLUTION OF THIS DISPUTE? 


            Historically, the Attorney General has not granted leave to sue in

quo warranto unless some public purpose would be served. (67 Ops.Cal.Atty.Gen.

151, 153 (1984).) The mere existence of a legal dispute does not establish that

the public interest requires a judicial resolution of the dispute or that leave

automatically should be granted for the purposed relator to sue in quo warranto.

(Id., at 154.) As stated inCity of Campbell v. Mosk, supra, 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." 


            Here the public interest would not be served by authorizing this

action.   the primary issue to be litigated is the intent of the proposed

defendant to establish domicile. That intent has been manifested by evidence

submitted to this office and we cannot say as a matter of law it is inadequate

or as a matter of fact it is incorrect. Indeed, precedent supports the opposite

conclusion. 8 Ops.Cal.Atty.Gen. 221; Fenton v. Board of Directors, supra, 156

Cal.App.3d 1107. When coupled with the public interest in eligibility to hold

public office and the resolution of ambiguities in support of that request

(Helena Rubenstein Internat. v. Younger, supra, 71 Cal.App.3d 406), we see little

purpose in forcing the proposed defendant to respond to a judicial proceeding on

such showing. Such disposition would discourage participation of citizens on

public boards and commissions such as this water district board. That result is

not in the public interest.      Consequently, for the reasons stated in this

analysis, we believe the proposed action not to be in the public interest. For

the foregoing reasons, leave to sue is denied. 


                                   * * * * *





                                       8                                  88-792

