M EMQRAN DLJ M City of Poway
ADDITIONAL MATERIALS
(Agenda Related Writings/Documents provided to City Council or Staff after distribution of the Agenda Packet for the January 21, 2025 Council Meeting) DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
January 21, 2025
Honorable Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
Alan Fenstermacher, City Attorney
[email protected]
Discussion and Possible Action to Fill Council Vacancy
On the evening of Sunday January 19, 2025, the City received a letter asserting that Councilmember Pepin no longer resides in Poway District 1, and thus his office is currently vacant (Attachment A). The City Attorney's office has reviewed the letter, and spoken with Councilmember Pepin, and provides the following detailed legal analysis for the City Council's consideration .
Discussion:
For approximately 8 years, Councilmember Pepin has lived at 13924 Olive Mesa Court in District 1 in Poway ("Poway Residence"), where he is currently registered to vote. His driver's license currently lists the Poway Residence, and his vehicle is registered at the Poway Residence.
Since November 21, 2024, Council member Pepin has been traveling over the holidays for an extended period of time, working remotely as necessary while commuting back and forth to the area. The Poway Residence has been rented out during that time.
Councilmember Pepin has not yet established a new permanent residence. There is no other fixed address or residence that he has identified as his home or where he has registered for any purpose.
Issue Presented:
Is Council member Pepin no longer eligible to hold office as the City Councilmember for District 1 in the City of Poway, and is his office thus automatically vacant? 1 of36 January 21, 2025, Item #4
Short Answer:
After analyzing all available legal authority and the relevant facts this office was able to obtain in the time permitted, it appears that Councilmember Pepin is still eligible to hold his office pursuant to Elections Code section 244 and a California Supreme Court ruling, because he has not yet established a new "domicile," or legal residence. California law mandates that at all times, every person must have a legal residence, referred to as a domicile, for the purposes of voting and holding public office, and therefore "[e]ven if a voter has left his residence with the intention not to return to it, that residence remains his domicile as long as he has not acquired a new one." (Walters v. Weed (1988) 45 Cal.3d 1, 9 [emph. added]; see also, Elec. Code§ 244(c) ["A residence cannot be lost until another is gained."].) As discussed in detail herein, the California Supreme Court in Walters - which analyzed the eligibility of college students to vote in a district which they had left, with no intention to return - recognized an odd "gap" in the law, which on one hand requires a person's "domicile" to be where he or she resides and intends to return, but on the other hand requires everyone to have a domicile (Walters, 45 Cal.3d at 8) (Attachment B).
In addition to students, the Walters case is often applied to transients or those on extended trips such as Council member Pepin, as recognized by several County registrar's FAQ pages, such as the following from Sacramento County: "If you have moved away from Sacramento County but, you have not re established a voting domicile, you may continue to use Sacramento County as your voting domicile until a new one is established -- even though you may have no intention of returning here. This is pursuant to court case Walters v. Weed (1988) AKA "UCSC Student Voting Case." 45 Cal.3rd.1. Voters who are students, traveling around the country, or are transient are often in this category.''1 Detailed Analysis:
I. Vacancy Analysis
A city council member who moves their residence outside the city or district from which they were elected immediately vacates their office: "A person is not eligible to hold office as councilmember ... 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. If, during his or her term of office, he or she moves his or her place of residence outside of the city limits or ceases to be an elector of the city, his or her office shall immediately become vacant" (Gov. Code § 36502(a); see also, accord, Poway Municipal Code section 2.04.070(() [" . . . Termination of residency in a district by a member of the City Council shall create an immediate vacancy for that Council district unless a substitute residence within the district is established within 30 days after the termination of residency."].) "Unless otherwise specifically provided, no person is eligible to be elected or appointed to an elective office unless that person is a registered voter and otherwise qualified to vote for that office at the time that nomination papers are issued to the person or at the time of the person's appointment" (Elec. Code§ 201 ). "Residence" as used above is a term of art, and is defined by state law as a "person's domicile" for both a person's eligibility as an elector and to hold elected office (Elec. Code § 349(a)). Determining a City 1 https://elections.saccounty.net/VotebyMail/Pages/SAC VRE DF No Longer Physical.aspx 2 of36 January 21, 2025, Item #4
Council member's domicile is the key question both for determining the Councilmember's "residence" and whether not he or she is an elector of the City (See, 72 Cal.Op.Atty.Gen. 63 (1989), Section II [detailed description of the legal definition of "residence" of a City Councilmember] (Attachment C); see also, Elec. Code§ 201.) Thus, the sole question here is: where is Council member Pepin's domicile? ''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(b); see also, Gov.
Code 243 ["Every person has, in law, a residence'l) Elections Code section 2023 states that "[i]f a person moves to another state as a place of permanent residence, with the intention of remaining there for an indefinite time, he or she loses his or her domicile in this state, notwithstanding that he or she intends to return at some future time." Additionally, Government Code section 244 requires the following rules to be observed for determining an individual's sole legal residence/domicile (emphasis added):
In determining the place of residence the following rules shall be observed:
(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.
As explained in the California Municipal Law Handbook, the leading municipal law treatise published by University of California's Continuing Education of the Bar ("CEB"), edited and updated yearly by an Editorial Board of municipal attorneys appointed by the President of the California League of Cities, City Attorneys Department:
3 of36
"Legal residence, also referred to as "domicile," is defined as physical presence combined with an intent to remain. Fenton v Board of Dirs. (1984) 156 CA3d 1107, 1112. A person has a legal residence at all times and retains a prior legal residence until a new residence is established. Walters v Weed (1988) 45 C3d 1, 7. Moreover, a temporary move outside of the city's boundaries with the intent to return does not create a loss of domicile. See 101 Ops Cal Atty Gen 42 (2018) (opining that council member temporarily moving in with in-laws in another city after expiration of lease did not result in loss of domicile when council member was actively seeking to lease new residence within city). A number of statutes provide aids to determine residency. See, e.g., Elec C §2021 (temporary departure or stay does not affect residence), §2031 (homeowner's property tax exemption and renter's credit can create January 21, 2025, Item #4
rebuttable presumption of residence); Govt C §244 (rules regarding residency)." (California Municipal Law Handbook, §1.193(2) (Attachment D)2.)
A similar summary was provided by the Attorney General, in its Opinion No. 96-100, available at https://oag.ca.gov/system/files/opinions/pdfs/96-11 0.pdf:
''The Supreme Court has ruled that the term "residence" as used in section 244 means "legal residence" or "domicile." (Walters v. Weed (1988) 45 Cal.3d 1, 7; Smith v. Smith (1955) 45 Cal.2d 235, 239; see also Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1113; 72 Ops.Cal.Atty.Gen. 8, 11 (1989).) The test for determining a person's domicile is physical presence coupled with an intention to make that place his or her permanent home. (Fenton v. Board of Directors, supra, 156 Cal.App.3d at 116.) To ensure that everyone has a domicile at any given time, the Legislature has adopted the rule that a domicile is not lost until a new one is acquired. (§ 244, subd. (c); Walters v. Weed, supra, 45 Cal.3d at 7.) Stated otherwise, a domicile, once acquired, continues until it is shown that a new domicile has been acquired. (DiMiglio v. Machore (1992) 4 Cal.App.4th 1260, 1268.)" (Emphasis added.) In more recent opinions, the Attorney General has often provided the following summary of the law for determining a Councilmember's legal residence or domicile (or a very similar version of it), essentially saying the same thing:
In this context, the residence of a public official or candidate for public office means his or her legal residence, also referred to as domicile - which is in turn defined as a person's fixed habitation where he or she intends to remain, and intends to return to whenever absent.
While a person may have multiple residences, a person may have one domicile only at any given time. Thus, a domicile "cannot be lost until another is gained." To change domicile, it requires a "union of act and intent." (101 Cal.Ops.Atty.Gen. 16 (2018) [emph added].) In Walters v. Weed, a seminal case which involved a challenge to the eligibility of college students to vote in a district they had left, and had no intention to return to, the California Supreme Court explained the following:
"Sections 202, subdivision (b) and 205 of the Elections Code and sections 243 and 244 of the Government Code rest on the well established principle that every person has in law a domicile or, as stated in the vernacular by the trial court, "everybody belongs somewhere." To insure that everyone has a domicile at any given time, the statutes adopt the rule that a domicile is not lost until a new one is acquired. These fundamental principles are supported by a long and diverse line of authority. [case citations omitted] The few California decisions that have addressed the specific question of what constitutes one's domicile for voting purposes have affirmed the fundamental principles set forth above. [case citations omitted]
2 This section of the Municipal Law Handbook, as well as other relevant sections cited herein, have bene attached hereto for reference.
4 of36 January 21, 2025, Item #4
Given the principle that everyone must have a domicile somewhere, a gap appears to exist in the statutory scheme. On the one hand, section 200, subdivision (b) declares that in order to establish one's domicile, one must have a fixed habitation, the intent to remain and, when absent, the intent to return. On the other hand, the remaining statutes in the scheme comprise a legislative mandate that everyone be domiciled somewhere and that the act of leaving one's domicile without the act and intention of establishing a new one does not extinguish the old. ''These statutes," the trial court cogently observed, "do not mesh." The trial court posed a simple hypothetical to illustrate the gap in the statutory scheme: "What of a person who has departed a residence with the unequivocally expressed intention not to return but who views his new abode as a temporary stopping place and does not intend it to be his domicile?" Under section 200, subdivision (b), the person is arguably left without a domicile, no longer entitled to vote in the precinct of the abandoned residence. Under sections 202, subdivision (b) and 205 of the Elections Code and sections 243 and 244 of the Government Code, the person retains the abandoned residence as his or her domicile for voting purposes until such time as a new one is acquired. The hypothetical is not an idle one but rather, according to the trial court, applies to the particular situation described by "many, if not most" of the witnesses in this case.
Confronted with statutes that appear to be at odds with each other, as illustrated by the hypothetical, the trial court endeavored to reconcile the statutes by gleaning from them the following rule: "Even if a voter has left his residence with the intention not to return to it, that residence remains his domicile as long as he has not acquired a new one." The trial court's rule, in our view, properly harmonizes the relevant statutes and merits our adoption." (Walters, 45 Cal. 3d at 8-9 [emph. added] (See, Attachment B).) In light of the above, it is the opinion of this office that Council member Pepin currently remains eligible for his office as Councilmember, given that based on the facts as presented, he has not established a new domicile. Thus, his previous domicile remains his current domicile/legal residence.
II. Abandonment
Councilmember Pepin does not appear to have abandoned his office under the common law rules, because his resignation clearly states it was not effective until a successor is appointed. "In order to constitute an abandonment of office, the abandonment must be total, and under such circumstances as clearly to indicate an absolute relinquishment. Moreover, the officer should manifest a clear intention to abandon the office and its duties, although his intention may be inferred from conduct.
If the acts and statements are such as clearly indicate absolute relinquishment, a vacancy is thereby created without the necessity of a judicial determination." (Walter v Adams (1952) 110 Cal.App.2d 484, 489.)
Government Code section 36513 states the following: "[i]f a city councilmember is absent without permission from all regular city council meetings for 60 days consecutively from the last regular meeting he or she attended, his or her office becomes vacant and shall be filled as any other vacancy . . . Notwithstanding subdivision (a), if a city council meets monthly or less frequently than monthly and a city councilmember is absent without permission from all regular city council meetings for 70 5 of36 January 21, 2025, Item #4
days consecutively from the last regular meeting he or she attended, his or her office becomes vacant and shall be filled as any other vacancy." Councilmember Pepin provided the City Manager with advance notice of his absences, and thus they are considered excused. Furthermore, the City Council only has one meeting in January, and thus the 70-day rule applies. It has been 63 days since Council member Pepin's attendance at his last regular City Council meeting.
Ill. The City Attorney Does Not Determine Whether or not Councilmember Pepin's Office is Vacant The City Attorney has no power to declare that a Councilmember's office is vacant. This can be done by majority vote of the City Council based on specific statutory grounds, or by a legal action filed by either the Attorney General or a third party with prior authorization from the Attorney General. (Code Civ. Proc. § 803; Harris v. Quintero (2014) 228 Cal.App.4th 868.) This Attorney General quo warranto action is the exclusive remedy. (Nicolopulos v City of Lawndale (2001) 91 Cal.App.4th 1221, 1225; California Municipal Law Handbook, §1.202 5.)
If the City Council disagrees with this office and believes that Councilmember Pepin is no longer eligible for office, it may direct staff to agendize a declaration of vacancy based on Government Code section 36502 by majority vote.
Attachments:
A. January 19, 2025 Letter to City Attorney
B. Walters v. Weed (1988) 45 Cal. 3d 1
C. In Re Lancaster Citizens for Better Government, 72 Ops. Cal. Atty. Gen. 63 D. Excerpts from the California Municipal Law Handbook
Reviewed/Approved By:
Assistant City Manager
6 of36
Reviewed By:
/Lu vL-1/ / /
Atfm Fenstermacher
City Attorney
Approved By:
Ch~
City Manager
January 21, 2025, Item #4
January 19, 2025
TO: Alan Fenstermacher, Poway City Atty
FROM: Chris Cruse, Hiram Soto, residents of D1 In Poway RE: Brian Pepin's residency requirements
We want to bring to your attention Brian Pepin's ineligibility to continue as a Poway City Council member. Given the clear evidence that Mr. Pepin no longer resides in District 1 or Poway for that matter, he is disqualified from participating in any capacity as a City Council member. This includes casting votes during the upcoming January 21 meeting, as any such actions would be in direct violation of municipal law. Any votes cast by Mr. Pepin will be illegal and therefore legally contested .
Furthermore, while we recognize that in past cases council members have provided valid rental agreements to demonstrate continued residency, we suspect that Mr. Pepin may attempt to produce a backdated agreement or similar documentation to justify his eligibility. We want to make clear that any such backdated arrangements will be scrutinized thoroughly. The integrity of this process demands transparency and corroboration with independent evidence to ensure compliance with the law.
Poway Municipal Code Section 2.04.070(C):
" ... the member of the City Council elected or (in the event of a vacancy filled by the City Council) appointed to represent a district must reside in that district and be a registered voter in that district. .. Termination of residency in a district by a member of the City Council shall create an immediate vacancy for that Council district unless a substitute residence within the district is established within 30 days after the termination of residency." Facts supporting termination of residency
As of January 19, Mr. Pepin remains registered to vote at 13924 Olive Mesa Ct., Poway. See date of screenshot at the top left.
7 of36 ATTACHMENT A January 21, 2025, Item #4
[ Return to Search I
Voter Information
VoterName BRIAN PEPIN
Voter ID 2537646
Street Address 13924 OLIVE MESA CT
Zip Code 92064
Registered On 08/12/2022
Registered REPUBLICAN
Vote Centers
Public records and available information indicate he and his family vacated the residence shortly after he submitted his resignation letter on November 25, 2023. The house at 13924 Olive Mesa Ct. has since been listed as a rental property on multiple platforms and is currently occupied by tenants according to records. See recent images below, easily accessible online:
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Property was listed as rented on January 15, and neighbors have reported the presence of new tenants for some time:
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In his resignation letter to City Manager Chris Hazeltine, Mr. Pepin cited work obligations as the reason for stepping away from the Council :
"My work in political consulting and communications consulting has expanded and grown since I joined the City Council, and I'm choosing to focus on continuing to grow my business in the coming year."
However, the letter made no mention of his relocation outside District 1 or Poway. Furthermore, no record exists of Mr. Pepin re-registering to vote at a new residence within the district.
Residency is inconsistent with active representation
Since submitting his resignation, Mr. Pepin has been notably absent. He did not attend the December 3 or December 17 council meetings. In response to a December 19 email inquiry from Chris Cruse, you indicated that Mr. Pepin's absences were "excused." However, these absences, combined with the evidence of his relocation, suggest he has effectively ceased to fulfill the duties of his office.
Conclusion
The evidence is clear: Mr. Pepin's residency in District 1 has been terminated, and he has not established a new residence within the district. This renders him ineligible to continue as a council member, and an immediate vacancy must be declared pursuant to Poway Municipal Code Section 2.04.070(C). Any attempts to justify his eligibility through backdated or otherwise questionable arrangements must be carefully scrutinized and challenged.
We demand that you take immediate and decisive action to enforce Poway's municipal laws by declaring an immediate vacancy for the District 1 council seat. Upholding the integrity of our city government requires holding all council members accountable .
Sincerely,
Chris Cruse and Hiram Soto
Residents of District 1, Poway
9 of36 January 21, 2025, Item #4
Walters v. Weed, 45 Cal.3d 1 (1988)
752 P.2d 443, 246 Cal.Rptr. 5, 45 Ed. Law Rep. 1147
FJ KeyCite Yellow Flag - Negative Treatment
Distinguished by Clark v. McCann , Cal.App. 4 Dist., December 24, 2015
45 Cal.3d 1, 752 P.2d 443, 246
Cal.Rptr. 5, 45 Ed. Law Rep. 1147
Supreme Court of California
NORMAN A. WALTERS et
al., Plaintiffs and Appellants,
V.
JANE WEED et al., Defendants and Appellants
S.F. No. 25130.
Apr 28, 1988.
SUMMARY
In an action by citizens to set aside a municipal election on the ground that certain students had voted illegally, the trial court in confirming the election upheld the votes of students who had voted in precincts where they had formerly been domiciled, but who had since moved to temporary
locations elsewhere in the city and had abandoned their former domiciles. (Superior Court of Santa Cruz County, No. 87518, Harry F. Brauer, Judge.) The Court of Appeal, First Dist., Div. Three, No. A028686, reversed.
The Supreme Co~rt reversed the judgment of the Court of Appeal with directions . It held that where a person leaves his or her domicile with the intention to abandon it, and where that person currently resides in a place in which he or she does not intend to remain, that person may vote in the precinct of his or her former domicile until a new domicile has been acquired. It further held that, notwithstanding Elec . Code, § 200 (domicile requires a fixed habitation, intent to remain, and intent to return after temporary absences), Elec. Code, §§ 200- 217 (determination of domicile for voting purposes), were intended to prevent people who had in fact acquired new domiciles from voting in the precincts of their abandoned ones, and thus did not address cases such as the instant one in which voters had left their former domiciles but had not acquired new ones. (Opinion by Panelli, J., with Mosk, Broussard and Arguelles, JJ. concurring. Separate dissenting opinion by Eagleson, J., with Lucas, C. J., and Kaufman, J., concurring.)
HEAD NOTES
Classified to California Digest of Official Reports
( I)
Domicile § 2--Definitions and
Statutes--"Residence" as Meaning "Domicile."
Distinctions--
The term "residence" in Gov. Code, §§ 243 *2 ("Every
person has, in law, a residence") and 244 (determination of place of residence), actually refers to "legal residence" or "domicile."
(2)
Elections § 2--Definitions and Distinctions--Domicile.
For purposes of voting, every person has in law a domicile, and that domicile is not lost until a new one is acquired. (3a, 3b, 3c, 3d)
Elections § 7--Electors--Residence--Domicile for Voting- Voting in Precinct of Former Domicile.
Where a voter leaves his or her domicile with the intention to abandon it, and where that voter currently resides in a place in which he or she does not intend to remain, that voter may vote in the precinct of his or her former domicile until a new domicile has been acquired . That rule is unaffected by Elec.
Code, § 200 (domicile requires a fixed habitation, intent to remain, and intent to return after temporary absences), based on the legislative history and the circumstances surrounding the enactment of the entire legislative scheme defining domicile for voting purposes (Elec. Code, §§ 200-PJ 217).
That scheme was intended to prevent people who had in fact acquired new domiciles from voting in the precincts of their abandoned ones; it does not address cases in which voters have left their former domiciles but have not acquired new ones.
[See Cal.Jur.3d (Rev), Elections, § 35 et seq.; Am.Jur.2d, Elections , § 66 et seq.]
(4)
Statutes§ 51--Construction--Codes--Conflicting Provisions- Different Codes.
In examining statutes that appear to conflict , a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. Statutes that are apparently in conflict 10 of 36 ATTACHMENT B January 21, 2025, Item #4
WESTLAW © 2025 Thorr1son Reute1·s . No claim to migina! U S. Government Wmks.
Walters v. Weed, 45 Cal.3d 1 (1988)
752 P.2d 443, 246 Cal.Rptr. 5, 45 Ed. Law Rep. 1147
should, if reasonably possible, be reconciled, even where the court interprets provisions in different codes.
(5)
Statutes § 43--Construction--Aids--Committee Reports-
Statement by Bill's Author.
Although there is a judicial reticence to rely on statements made by individual legislators as an expression of the intent of the entire body, such statements may be accepted as an aid to asce11aining a statute's underlying purpose where the statements have given some indication of the arguments made to the Legislature and were subsequently printed by it, and where the committee transcript reveals the discussion and events at the committee hearing. Thus, a Senate committee hearing transcript incorporating the testimony of a bill's author commanded respect as an expression of the intent of the entire Legislature toward the bill. The committee's discussion, which comprised a full day's testimony , indicated that other legislators and *3 witnesses shared the author's views on both the need for, and the purpose of, the proposed bill.
(6)
Statutes § 21--Construction--Legislative Intent--General Principles.
A wide variety of factors may illuminate the legislative design of a statute, such as context, the object in view, the evils to be remedied, the history of the time and of legislation on the same subject, public policy, and contemporaneous construction.
(7)
Statutes § 45--Construction--Presumptions--Use of Terms Previously Construed by Judiciary.
Where the Legislature uses terms that have already been judicially construed, the presumption is almost irresistible that it used them in the precise and technical sense placed upon them by the cowis.
(8)
Elections § 18--Contests--Grounds--Electors Voting in
Precincts of Former Domiciles.
In an action to set aside a municipal election, the trial court properly upheld the votes of students who had voted in
precincts where they had formerly been domiciled, but who had since moved to temporary residences elsewhere in the city and had abandoned their former domiciles. The abandoned 11 of 36
domiciles had been the only locations where the students had satisfied the domicile requirements of Elec. Code, § 200 . Further, such a finding was consistent with the principle that one's domicile is unaffected by relocation where that relocation is accomplished without the intent to make a new residence ( Elec. Code, § 205); complied with the mandate that no one can be without a domicile (Gov. Code, § 244 ); and supported public policy and statutory ( Elec. Code, § 217) expressions of disfavor with disenfranchisements.
COUNSEL
Ronald A. Zumbrun, Anthony T. Caso, Jonathan M. Coupal, John H. Findley, Timothy J. Morgan and Liberty, Morgan & Glidden for Plaintiffs and Appellants.
Gary M. Cohen, John W. Keker, Keker & Brockett, Mitchell Page, Page & Cohen and Robert E. Taren for Defendants and Appellants.
John K. Van de Kamp, Attorney General, Andrea Sheridan
Ordin, Chief Assistant Attorney General, Marian M. Johnston and Manuel M. Madeiros, Deputy Attorneys General as
Amici Curiae on behalf of Defendants and Appellants. *4 PANELLI,J.
This case presents the question whether voters who leave their domiciles with no intention of returning to live there lose their right to vote in their former domiciles even though they have not yet established new domiciles. In light of the principle that everyone must have a domicile somewhere, we conclude that such individuals retain their right to vote in the precincts of their former domiciles . 1
Facts
On November 8, 1983, Jane Weed and three other candidates were elected to the Santa Cruz City Council. Ms. Weed
received the fewest number of votes of the four declared winners. Based on a Santa Cruz County Grand Jury report that found voting irregularities in the four on-campus precincts at the University of California, Santa Cruz (UC Santa Cruz), plaintiffs , a group of individual citizens, contested Weed's election. They alleged that 472 of the persons who voted in the on-campus precincts were not domiciled in the precincts in which they voted and thus cast illegal votes. Plaintiffs filed a statement of contest of election, seeking a declaration that candidate Bill Fieberling, who lost to Weed by 145 votes, be declared the rightful winner.
January 21, 2025, Item #4
WESTLAW © 2025 Thomson Reuters. No claim to original U.S. Government Works . 2 Walters v. Weed, 45 Cal.3d 1 (1988)
752 P.2d 443, 246 Cal.Rptr. 5, 45 Ed. Law Rep. 1147
At the time of the election in 1983 the 4 72 voters in question were students at UC Santa Cruz. They had lived and registered to vote on the univers ity campus. When they returned to school in the autumn of 1983, many were unable or chose not to live on campus . However, by the time voter registration closed , not all of these students had obtained off-campus housing where they intended to rema in. As a result, they voted in their former campus precincts. The question therefore presented is whether these students lost their right to vote on campus during the period between the date on which
they abandoned their campus domiciles with no intention of returning there to live and the date on which they established new domiciles . For the reasons set forth below, we hold that these students did not vote illegally. We therefore uphold the election results.
Procedures Below
This case involved a lengthy trial, at which 292 voters testified. To avoid the intrusive , time-consuming process of requiring the students to disclose *5 the tenor of their votes (Evid . Code, § 1050), the trial court approved the parties' stipulation to the use of a formula which permitted the court to find that for every ten illegal votes found within the four on-campus precincts, nine were to be counted for Weed and one for Fieberling. The nine-to-one formula was based on the trial court's taking judicial notice of the political profile of UC Santa Cruz students: "[A] candidate or issue that appeals to the left side of the spectrum and prevails or fails narrowly in Santa Cruz as a whole carries the campus by 88 to 96 percent of the votes cast. ... " 2 The use of this type of formu la has been approved in prior decisions (see, e.g., Singleta,y v.
Kelley ( 1966) 242 Cal.App .2d 611 [51 Cal.Rptr . 682]) and is not at issue here. By a computation similarly not at issue, the trial court determined that under the nine-to-one formula, one hundred eighty-two illegal votes citywide were necessary to set aside the election results , as permitted by section 20024 of the Elections Code, 3 and declare Fieberling the winner.
The court found that 193 voters who testified did not
physically reside in the on-campus precincts in which they voted and "unequivocally" expressed at trial the intention not to return to live on campus. Of these 193 voters, the trial court found that only 113 had acquired a new domicile as of I month before the election and had therefore voted illegally. 4 As to the remaining 80 voters , the trial court affinned the legality of their votes based on the principle , codified in section 244 of the Government Code, that one cannot lose a domicile until 12 of 36
a new one is acquired. The trial court found that only 113, rather than the necessary 182, votes had been cast illegally and confirmed Weed's election . *6
The Court of Appeal reversed , declaring Fieberling the winner in place of Weed. The Court of Appeal hinged its analysis on section 200, subdivision (b) of the Elections Code which provides that one's domicile for voting purposes 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 .... " Thus , the court held that, as a matter of law, the 193 persons who moved from their campus domiciles without the intention of returning .there to live lost the right to vote in those precincts , regardless of whether they had established new domiciles. 5 The effect of the court's decision was to disenfranchise those voters who abandoned a former domici le without having established a new one. We granted Weed's petition for review to reconcile the apparent conflict between the Government Code provisions relied on by the trial court and the Elections Code provisions relied on by the Court of Appeal.
Discussion
A. Elections Code Section 200.
The California Constitution provides that "[a] United States citizen 18 years of age and resident in this state may vote" and directs the Legislature to "define resident and provide for registration and free elections. " (FJCal. Const., art. II, §§ 2, f=J 3.) To comply with this constitutional mandate, the Legislature enacted sections 200- 217 of the Elections Code, setting forth the criteria to determine one's residence for voting purposes .
Section 200 of the Elections Code provides: "(a) Except as provided in this article, the term 'residence' as used in this code for voting purposes means a person's domicile . [,r] (b) 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 ofreturning. At a given time, a person may only have one domicile. [ii] (c) The residence ofa person, as used in this article , is that place in which the person's habitation is fixed for some period of time, but wherein he or she does not have the intention ofremaining. At a given time, a person may have more than one residence." (ltalics added .) January 21, 2025, Item #4
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Plaintiffs contend that the definition of domicile set forth in section 200, subdivision (b) demonstrates that the Court of Appeal was correct in *7 invalidating the 193 votes cast by students who voted on campus after having relocated with no intention to return to campus to live. Indeed, as aptly stated by the trial court, "If section 200 were the only statute on point, this case would be very easy to decide. The overwhelming majority of voters, far more than necessary to overturn the election, testified unequivocally that when they moved [off campus], they had formed the clear resolve not to return to the campus to live. Those students could not have more clearly renounced the ambit of section 200[, subdivision] (b )." The trial court correctly recognized, however, that section 200 of the Elections Code is not the only statute to be considered; sections 202, subdivision (b) and 205 of the Elections
Code and sections 243 and 244 of the Government Code must also be taken into account.
B. Elections Code Sections 202, Subdivision (b) and
205; Government Code Sections 243 and 244.
Section 202, subdiv ision (b) of the Elections Code provides:
"A person does not gain a domicile in any precinct into which he or she comes for temporary purposes merely, without
the intention of making that precinct his or her home ." Section 205 of the Elections Code provides: "The mere
intention to acquire a new domicile , without the fact of removal avails nothing , neither does the fact of removal without the intention." Additionally , sections 243 and 244 of the Government Code set forth rules for determining one's "domicile"-a term referred to in those sections alternately as one's "legal residence " or "residence. " Section 243 of the Government Code provides: "Every person has, in law, a
residence ." Section 244 establishes: "In determining the place ofresidence , the following rules shall be observed: ... [~] (b) There can only be one residence . [1 (c) A residence cannot be lost until another is gained .... [~] (t) The residence can • be changed only by the union of act and intent." (I ) We have recognized that these Government Code sections which use the term "residence" actually mean "legal residence" or "domicile, " and we have interpreted them accordingly. (Smith v. Smith (1955) 45 Cal.2d 235, 239 [288 P.2d 497]; accord F=1Fenton v. Board of Directors (1984) 156 Cal.App .3d 1107, 1113-1114 [ 203 Cal.Rptr . 388].)
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(2) Sections 202, subdivision (b) and 205 of the Elections Code and sections 243 and 244 of the Government Code rest on the well established principle that every person has in law a domicile or, as stated in the vernacular by the trial court, "everybody belongs somewhere. " To insure that everyone has a domicile at any given time, the statutes adopt the rule that a domicile is not lost until a new one is acquired. These fundamental principles are supported by a long and diverse line of authority. (See, e.g., Mitchell v. U.S. ( 1875) 88 U.S. (21 Wall) 350,353 [FJ22 L.Ed. 584, 588]; *8 Sampsell
v. Superior Court (1948) 32 Cal.2d 763, 774 [ 197 P.2d
739]; Smith v. Smith (1955) 45 Cal.2d 235, 239 [288 P.2d 497]; Estate of Glassford (1952) 114 Cal.App.2d 181 ,
186 f :1249 P.2d 908, 34 A.L.R .2d 1259]; P c hapman v.
Superior Court (1958) 162 Cal.App .2d 421, 426-427 [F=1328 P.2d 23]; In re Leff (1972) 25 Cal.App.3d 630, 642 [102 Cal.Rptr . 195]; Rest.2d Conf. of Laws, § 19; I Beale, A Treatise on the Conflict of Laws (1935) ch. 2, pp. 181-182.) The few California decisions that have addressed the specific question of what constitutes one's domicile for voting
purposes have affirmed the fundamental principles set forth above. cP Huston V. Anderson (1904) 145 Cal. 320, 328-329 [FJ 78 P. 626]; People v. English (1921) 54 Cal.App. 90 [201 P. 145]; see also FJ col/ier v. Menzel (1985) 176 Cal.App.3d 24 [ 221 Cal.Rptr . 110].)
C. The Gap in the Statutory Scheme.
Given the principle that everyone must have a domicile
somewhere, a gap appears to exist in the statutory scheme.
On the one hand, section 200, subdiv ision (b) declares that in order to establish one's domicile, one must have a fixed habitation, the intent to remain and, when absent, the intent to return. On the other hand, the remaining statutes in the scheme comprise a legislative mandate that everyone be domiciled somewhere and that the act of leaving one's domicile without the act and intention of establishing a new one does not extinguish the old. "These statutes ," the trial cou1t cogently observed , "do not mesh."
The trial court posed a simple hypothetical to illustrate the gap in the statutory scheme: "What of a person who has departed a residence with the unequivocally expressed intention not to return but who views his new abode as a temporary stopping January 21, 2025, Item #4
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place and does not intend it to be his domicile?" Under section 200, subdivision (b ), the person is arguably left without a domicile , no longer entitled to vote in the precinct of the abandoned residence . Under sections 202, subdivision (b) and 205 of the Elections Code and sections 243 and 244
of the Government Code, the person retains the abandoned residence as his or her domicile for voting purposes until such time as a new one is acquired . The hypothetical is not an idle one but rather, according to the trial court , app lies to the particular situation described by "many, if not most" of the witnesses in this case .
D. Reconciliation.
(3a) Confronted with statutes that appear to be at odds with each other, as illustrated by the hypothetical, the trial court endeavored to reconcile the statutes by gleaning from them the following rule: "Even if a voter has left his residence with the intention not to return to it, that residence remains *9 his domicile as long as he has not acquired a new one." The trial court's rule, in our view, properly harmonizes the relevant statutes and merits our adoption.
( 4) In examining statutes that appear to conflict , we are guided by settled rules of statutory construction. The most fundamental of these rules is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. ( Brown v. Superior Court (1984) 37 Cal.3d
477, 484 [FJ208 Cal.Rptr. 724, 691 P.2d 272].) Statutes that are apparently in conflict should , if reasonably possible , be reconciled (FJ Associated Home Builders etc., Inc. v. City of Livermore (1976) I 8 Cal.3d 582, 596 [F'.J 135 Cal.Rptr. 41 , 557 P.2d 473, 92 A.L.R.3d 1038]), even when the court interprets provisions in different codes (P Building Material & Construction Teamsters' Union v. Farrell (1986) 41 Cal.3d 651, 665 [ 224 Cal.Rptr . 688, 715 P.2d 648]).
(3b) Sections 200- 217 of the Elections Code represent
the Legislature's response to numerous allegations of election fraud in the local elections held in San Francisco and San Bernardino in 1975. (Bolinger , Cal. Elec . Law During the Sixties and Seventies: Liberalizatio n and Centralization, 28C West's Ann . Elec. Codes (1977 ed.) pp. 55, 83-86.) The allegations were based on reports that many city residents had moved to outlying areas with the intent to remain in the suburbs , but had returned to vote in their former city 14 of 36
precincts. Among those who had migrated to the suburbs
were a number of city employees of San Francisco "believed to be more than enough to determine the outcome of many elections, including measures involving pensions of city employees ." (Id. at p. 84.)
Shortly after these allegations were published , Senate Bill No. 1653 was introduced , part of the four-bill package which was ultimately chaptered as sections 200 217 of the Elections Code . (Sen. Bill No. 1653 ( 1975- 1976 Reg. Sess.).) In testifying before the Senate Committee on Elections and Reapportionment as to the purpose of Senate Bill No . 1653, the bill's author stated: "l'm sure you recognize the fact that a person can have more than one residence but a person
cannot have more than one domicile and so [Senate Bill No. 1653] seeks to arrive at that particular point. ... [The bill attempts] to set forth ... in statutory form for the first time some of the court decisions on the question of domicile and residence ... [so] the Clerks and the voters will know where people should vote .... [Senate Bill No . 1653] also defines what's meant by domicile and residence ; a question of act and intent required to establish a domicile ... . " (Transcript of Hg. on Voter Residency and Registration before Sen. Com. on Elec. and Reapportionment (Mar. 5, 1976) pp. 6-13.) *10 Plaintiffs argue that the legislative intent underlying sections 200 217 of the Elections Code was to prevent voters
from casting ballots in the precincts of their abandoned domiciles. Plaintiffs are only partially correct. It is clear from the circumstances surrounding the adoption of sections 200~ 2l7 , and from the statements made by the autho r of the bill, that the Legislature sought to prevent people who had in fact acquired new domiciles from voting in the precincts of their abandoned domiciles .
(5) Although there is a marked judicial reticence to rely on statements made by individual members of the Legislature as an expression of the intent of the entire body ( Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 258 [ 104 Cal.Rptr . 761, 502 P.2d 1049]), the Senate
committee hearing transcript , incorporating the author's testimony , commands respect for two reasons. First, we have in the past accepted an individual legislator's statement as an aid to ascertaining a statute's underlying purpose when the statement has given some indication of the arguments made to the Legislature and was subsequently printed by the Legislature. ( California Teachers Assn. v. San Diego January 21, 2025, Item #4
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Community College Dist. (1981) 28 Cal.3d 692, 700 [ 170 Cal.Rptr . 817, 621 P.2d 856].) Second, the transcript reveals the discussion and events at the hearing, aspects which we may properly consider. ( In re Marriage of Bouquet
(1976) 16 Cal.3d 583, 590 [ 128 Cal.Rptr. 427, 546 P.2d 1371]; F=lRich v. State Board of Optomet,y (1965) 235
Cal.App .2d 591, 603 [ 45 Cal.Rptr . 512].) That discussion, which comprised a full day's testimony, indicates that other legislators and witnesses shared the author's views on both the need for, and the purpose of, Senate Bill No. 1653.
(6) We have recognized that a wide variety of factors may illuminate the legislative design, '"such as context, the object in view, the evils to be remedied , the history of the time and of legislation upon the same subject, public policy and contemporaneous construction."' ( In re Marriage
of Bouquet, supra, 16 Cal.3d 583, 587, quoting Alford v.
Pierno ( 1972) 27 Cal.App.3d 682, 688 [ I 04 Cal.Rptr. 11 0].) ( 3c) The election fraud alleged in connection with the 1975 elections , and the references to that fraud during the consideration of Senate Bill No. 1653, suggest a legislative intent to clarify vague voter residency requirements, with the goal of preventing voters who had established new domiciles from voting in the precincts of their abandoned domiciles.
Thus, sections 200- 217 of the Elections Code were not
drafted to address the specific problem raised by this case in which people left their domiciles but did not acquire new ones.
Additionally, we may presume that the Legislature was aware of prior judicial decisions that examined voter residency requirements . ( Buckley v. Chadwick (1955) 45 Cal.2d
183, 193 [ 288 P.2d 12].) (7) Where the *11 Legislature uses terms already judicially construed, "the presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the
com1s. [Citations.]" (City of L ong Beach v. Marshall (1938) 11 Cal.2d 609, 620 [82 P.2d 362].) ( 3d) This presumption is strengthened further by the author's statements at the committee hearing that the purpose of the bill was to bring the unclear statutory requirements into conformity with the court decisions that had defined domicile for voting purposes.
The guidance provided by those decisions ~ Huston v.
Anderson, supra, 145 Cal. 320 and People v. English, supra, 54 Cal.App . 90-aids considerably our task of reconciling 15 of 36
section 200, subdivision (b) with the other relevant statutes .
Those decisions have as their pole star the requirement that a domicile of choice cannot be created without the union of act and intent. Sections 202 , subdivision (b) and pa205 of the Elections Code and section 244 of the Government Code are similarly guided. Since we may presume that the Legislature did not intend to act inconsistently on the same subject (FJ Jacobs v. State Bd of Optomel!y (1978) 81 Cal.App.3d 1022, 1031 [FJ 147 Cal.Rptr. 225]), we agree with the trial cow1 that section 200, subdivision (b) must be read in light of the other statutes to ensure that, for voting purposes, "everybody belongs somewhere ."
(8) With this principle in mind, we return to the facts of the present case. It is undisputed that when the students whose votes are at issue registered to vote on campus,
sometime before the autumn of 1983, they satisfied the
three requirements of section 200, subdivision (b). Their habitation was fixed, they lacked the present intention to move elsewhere and, when absent, they viewed their campus accommodations as the place to which they intended to return.
It is also without dispute that when these students returned to school in the autumn of 1983 and resided temporarily in the off-campus homes or apartments of friends, in cars parked in remote campus parking lots, or in tents pitched under the campus redwoods , they no longer satisfied the section 200, subdivision (b) requirements, because their habitation was not fixed, they intended to move elsewhere and,
when absent, they did not necessarily view their temporary accommodations as the place to which they intended to return.
Bearing in mind the principle that one can never be without a domicile, the question we must resolve is, "Where were these students domiciled for voting purposes when they resided at their temporary locations during the autumn of 1983 ?"
To answer the question , we have before us three alternatives :
I) the domiciles which the students would eventually
establish, i.e., their "future domiciles"; 2) the location of the students' temporary residences (i.e., their residences on the last day of voter registration); or 3) the location of the *12 students' abandoned domiciles. 6 Alternative number one, the students' future domiciles, is inappropriate; unlike their counterparts whose votes the trial court invalidated, the students whose votes are at issue had not yet established new domiciles. Thus, many if not all of these students were obviously unable to identify the location of their future domiciles , and the law does not demand such prescience .
Alternative number two, the students' temporary residences , January 21, 2025, Item #4
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is also inappropriate. Use of such residences for voting purposes would ignore the section 200, subdivision (b)
requirements of a fixed habitation , the lack of a present intention to move elsewhere , and the intention, when absent , to return to the temporary accommodations. Moreover ,
allowing people who abandon their domiciles to vote in the precincts of their current tempora1y residences would create a system in which people could vote anywhere they chose, regardless of their ties to the community. Voters who abandon their domiciles could temporarily stay in precincts where their votes would have the greatest impact. We decline to allow such precinct shopping. 7
Alternative three, the former domicile , presents the logical choice. It is the only location where the student had satisfied the requirements of section 200, subdivision (b ). It is also consistent with the statutory principle that one's domicile is unaffected by one's relocation where that relocation is accomplished without the intent to make the new residence one's domicile. (p:ilElec. Code, § 205 .) Finally, it ensures the continued integrity of the legislative mandate codified in Government Code section 244 that no one can be without a domicile.
We agree with the dissent that the main concern here is forum (or precinct) shopping and that the legislative goal of the statutes in question was *13 the deterrence of election fraud. However, we believe this concern is best met and the legislative objective best served by the rule we adopt today.
Under the dissent's approach , a voter would have an incentive to move into an area temporarily to attempt to establish a domicile for a given election. The dissent provides no limiting standards to control fraud; one who claimed to have left a prior domici le and had not established a new one would be allowed to vote wherever he or she happened to be at the time registration closed . Only by keeping an eye on each such voter after the election could it be determined if the claim had been fraudulent. Our approach offers the necessaiy standards to prevent such carpetbagging; it leaves a voter where he or she was unless and until a new domicile is established under standard principles. The decision to move cannot be made at the last minute for voting purposes alone. Our approach can be faulted at most for possibly not deterring a voter from returning to a former location to vote by falsely claiming not to have established a new domicile elsewhere. But such fraud would be more noticeable and thus easier to detect than a fraudulent claim that an old domicile had been abandoned 16 of 36
such that the individual should be allowed to vote in a new, albeit temporary, locale.
Our "looking backward " in time to one's "past" domicile for voting purposes has both legislative and judicia l
precedent. Section 217 of the Elections Code, enacted
contemporaneously with section 200, subdivision (b ), entitles a duly registered voter in any precinct in California who removes therefrom within 28 days prior to an election to vote in the voter's abandoned precinct. The purpose of the statute is to assure that the voter is not disenfranchised. (Kagan v. Kearney (1978) 85 Cal.App.3d 1010, 1017
[149 Cal.Rptr . 867].) As our previous discussion of the circumstances surrounding the enactment of sections 200 through 217 explains , however, the underlying premise
of these enactments is that the voter has acquired a new domicile. Hence , the 28-day rule of Elections Code
section 217 does not directly address the situation presented here, where no new domicile has in fact been established .
Neve1theless , we adopt the statutory scheme underlying Elections Code sections 202, 205 and 217, and
Government Code sections 243 and 244, that the voters retain their "current " domiciles until they acquire-through the union of act and intent-new domiciles.
Policy considerations also support the use of students' abandoned domiciles for voting purposes . Our adoption of the trial court's rule avoids disenfranchisement. Were we to adopt the hold ing of the Court of Appeal, anyone who moved from one domicile and had not yet established another would be left without a domicile and thus would be unable to vote anywhere during the period of travel. University students would be especially hard hit, as it is not uncommon for them to relocate at summer's beginning *14 or end, precisely when voter
registration periods close. In communities with large student populations and low vacancy rates, the student's search for a new domicile can be particularly exasperating-and time consuming . Thus , under the Court of Appeal's holding, many students would be subject to disenfranchisement. Such a result is, in itself, intolerable; it also conflicts with our holding that no construction of an election law should be indulged that would disenfranchise any voter if the law is reasonably susceptible to any other meaning ( Otsuka v. Hite (1966) 64 Cal.2d 596, 603-604 [ 51 Cal.Rptr. 284, 414 P.2d 412]), and it ignores our holding that students 18 years of age or older must be treated the same as other California residents January 21, 2025, Item #4
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for voter registration purposes (FJ Jolicoeur v. Mihaly (1971) 5 Cal.3d 565 [f:J 96 Cal.Rptr . 697, 488 P.2d !]).
Specifically, the Court of Appeal has disenfranchised the students by creating an implied presumption that a new
domicile is created whenever a person intends to abandon his or her former domicile. The Cou1t of Appeal held: "A person who has moved from his or her voting domicile and who has no intention ever to return there to live does not satisfy [the requirements of section 200, subdivision (b )]. We conclude as a matter of law that such a person is no longer domiciled for voting purposes in the place from which he or she has moved, and necessarily intends to acquire a new domicile elsewhere, regardless of his or her subjective expressions of intent with respect to that acquisition." (Italics added.) The problem with the Colllt of Appeal's analysis is that the students in this case had not in fact acquired new domiciles elsewhere. They had merely established residences. The acquisition of a new domicile requires the union of act and intent. Even if the students intended to acquire new domiciles in the abstract, they had not yet moved to a place where they intended to remain.
The result of the Court of Appeal's presumption is that the students cannot vote in their former domiciles, because they have abandoned them; they cannot vote in the precincts
of their current residences, because they do not have the intentions to remain and hence cannot qualify their residence as their domicile; and they cannot vote in their future domiciles, because they do not yet reside there. Such a disenfranchisement cannot be sustained.
Our holding in this case is narrow in its scope. We hold that when a person leaves his or her domicile with the intention to abandon it, and when that person currently resides in a place in which he or she does not intend to remain, that person may vote in the precinct of his or her former domicile until a new domicile has been acquired. *15
Conclusion
The judgment of the Court of Appeal is reversed with
directions to affirm the judgment of the trial colllt confirming the election of Jane Weed. Parties to bear their own costs.
Mosk, J., Broussard, J., and Arguelles, J., concurred.
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EAGLESON, J.
I dissent. This is one of those unusual cases in which
a dissenting justice can say appropriately: "I dissent for the reasons stated in the majority opinion." In my view the Court of Appeal properly construed and applied to
the circumstances of this case the statutes governing voter domicile and registration.
The problem in this case is simple. The solution should be.
A voter moves from his residence and voting domicile. He concedes that he does not intend to return to that residence, and is temporarily residing elsewhere. He intends to find a new residence, one that may or may not be in the precinct of his former domicile, at some future, but indefinite, time.
The majority conclude that the precinct of this voter's forn1er residence and voting domicile will continue to be his voting domicile indefinitely until he not only makes up his mind to create a voting domicile elsewhere but actually does so by moving to a new residence at which he intends to remain for the foreseeable future. No matter how often he moves, or how long he remains out of the precinct of his former domicile, he may cast his vote in that precinct until he decides that his ClllTent residence is not "temporary."
The majority reason that acceptance of the voter's assertion that, although he has abandoned his former residence and voting domicile without intent to return to that residence, his present residence is only temporary, and therefore permitting him to continue to vote in the former precinct, will avoid fraudulent voting. A greater danger of fraud would exist, they claim, if we conclude that the voter has established a new voting domicile. The majority suggest that fraudulent voting would be easier because voters could move to a precinct in order to influence an election in a location at which they did not intend to remain, and then move back to their prior domicile. The majority make this suggestion notwithstanding the objective evidence and concession by the voter that he has left his former voting domicile-evidence that he has moved himself and his possessions out of his former residence and has lived in a new precinct for more than 28 days.
Somehow, in the view of the majority, fraud is more easily perpetrated if we permit a voter, who has actually gone to the trouble and expense of *16 moving, to vote in the
location to which he has moved, than if we permit him to claim for an indefinite period that he does not intend to remain in that location and therefore remains domiciled for January 21, 2025, Item #4
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voting purposes in a precinct in which he does not live and to wh ich he says he has no intent to return. Not only is the logic leading to this result untenable , but the result cannot be reconciled with the clear legislative intent that voters who have abandoned their voting domicile, i.e., those who have moved without intent to return, may not continue to vote in the precinct of that domicile for more than 28 days . The strained logic of the majority is not necessary to achieve the goal of avoiding possible disenfranchisement of members of our increasingly peripatetic citizenry, and, as the election at issue demonstrates , the result affords an incentive to engage in a type of fraud the Legislature sought to eliminate . The impact may be minimal in an election like that here involved, one for at-large seats on a city counc il. In a city which elects council members by district, however , or on measures or candidates who appea r only on the ballot for the precinct of the voters' former domicile , the result may well be that persons who no longer reside in the precinct (or city, or county) and have no intention of ever doing so again will control the outcome of the election.
The majority accept and apply an untenable syllogism:
Because everyone must have a voting "domicile," a person who has abandoned a domicile with no intent to return thereto , but has not yet established a residence at which he intends to remain for the indefinite future, continues to be domiciled at the location to which he intends not to return .
I suggest that both thoughtful reflection and adherence to the clear legislative intent underlying our election laws support the well-reasoned decision of the Court of Appeal. Once a voter has abandoned his domicile , his place of residence at the close of registration is his voting domicile until such time as he actually moves on to a permanent domicile. This is true whether the voter is a student living " in the woods behind Crown College " or in a van parked on the University of California Santa Cruz "east remote parking lot"; 1 a student who has left the dormitory and is staying with friends until he locates an apartment of his own; or a San Francisco city employee who has moved from the City and County of San
Francisco but harbors an *17 "intent" to return to make the city his permanent residence and thus claims the right to vote in his former precinct (where , by coincidence , he is able to influence his civil service benefits) . None of these voters is legally entitled to vote in the precinct in which he was formerly domiciled in any election that takes place more than 28 days after he has moved. He has no recognizable interest in casting a vote on any matter that relates to his former domicile but not his present residence , and his vote should not 18 of 36
be permitted to dilute those of persons presently domiciled in, and directly affected by, an election concerning the former domicile.
As the majority properly acknowledge, the historical
perspective in which the 1976 amendments to the Elections Code, 2 those governing voter residence and domicile,
were enacted offers valuable insights into the intent of the Legislature. The amendments reflect the Legislature's recognition of changes in voter demographics that had
by the time of the amendments created a need to both
make the franchise accessible to a more youthful and
mobile population and to prevent the abuse of the franchise made possible by that very mobility . The problem of
accommodating the election law to these phenomena has been described by Bruce Bolinger , the consult ant to the Assembly Committee on Elections and Reapportionment, in his article California Election Law During the Sixties and Seventies:
Liberalization and Centralization (28C West's Ann . Elec.
Code ( 1977 ed.) p. 55) (hereafter Bolinger), a document which the majority acknowledge but whose importance is
not adequately considered . As Bolinger notes, the courts had already construed and applied the existing ( I 96 I) code provisions to accommodate these changes , and the purpose of the 1976 amendments to the code was to incorporate these decisions, not, as the majority would do, to overrule them.
The first demographic change , that which is reflected in the Santa Cruz election that is the subject of this controversy , followed the lowering of the voting age to 18 years. With that change , a product of the adoption in I 971 of the Twenty-sixth Amendment to the United States Constitution , 3 thousands of college students who had not theretofore been electors were permitted to register to vote . Controversy immediately erupted as to whether these students should be permitted to register in any location other than the domicile of their parents.
That controversy was promptly resolved by this court In FJ Jolicoeur v. Mihaly (1971) 5 Cal.3d 565 [ 96 Cal.Rptr. 697, 488 P.2d l ]. Construing and *18 applying the
provisions of the 196 I code to these newly enfranchised voters, we held that 18-year-old citizens had to be treated as emancipated minors for voting purposes. We recognized the possibility that if students registered in their college communities they might control a local election even though they did not intend to remain in that location after graduation .
We also recognized , however , that the Legislature had January 21, 2025, Item #4
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expressly prohibited exclusion of a college student from a local election if the student had abandoned his former domicile. Former section 14283, enacted as part of the 1961 code, then provided: "A person does not gain or lose residence solely by reason of his presence at or absence from a place ... while a student of any institution of learning .... This section shall not be construed to prevent a student at an institution of learning from qualifying as an elector in the locality where he resides while attending that institution when in fact the student has abandoned his former residence." (Stats. 1961, ch. 23, § 3, p. 766.)
Under the 1961 code, therefore, a college student who had left the home of his parents without intent to return , i.e., who had abandoned his former domicile, could properly
register and legally vote in the community within which he resided even though that residence was temporary because the student at all times intended to move upon graduation.
This was true whether the move to the college community occurred upon matriculation or a month before graduation.
The dispositive fact was that the voter had abandoned his former residence. Whether he intended to make his college residence a permanent domicile was irrelevant. Until such time as the voter who had abandoned a former domicile
actually established a new domicile, his domicile for voting purposes was his current place of residence-not the domicile he had abandoned.
We recognized in FJ Jolicoew ; supra , 5 Cal.3d 565, that if former section 14283 were not construed and applied in this manner to the newly enfranchised 18- to 20-year-old voters, these persons would then be forced or permitted to cast their ballots in elections at their former domicile, elections in which they had no stake in the outcome and which they should not be permitted to influence. "The second major evil accomplished by allowing or forcing voters to vote in districts not their own is that voters of other districts have inflicted upon them a voter with no stake or interest in the outcome of the election.
The extent of the evil is not only that residents of California would be asked to decide issues in Arizona or Hawaii. Small towns in California would be especially affected by such a rule, since the number of young people from the town who have left for other areas may be substantial in comparison to the town's total population. Allowing unmarried minors who reside elsewhere to vote may effectively turn a small town over to the control of unconcerned outsiders. Over a century ago we *19 recognized the wisdom of requiring voters to be residents of the jurisdiction: '[C]itizens ... should not deal with public questions through the ballot box until they at 19 of 36
least [have] the benefit of an opportunity to learn the public wants, of concerting measures the best calculated to provide for them, and of selecting proper men to ca1Ty those measures into effect; ... ' ( Bourland v. Hildreth , supra, 26 Cal. 161, 179.) Allowing minors to vote at fictional residences would .compromise the integrity of the political process." (5 Cal.3d at p. 577.) Former section 14283, of course, did not create a special registration status for college students. Its purpose was to ensure that they, like all other voters, would be free to establish a domicile at the place of their actual residence even though the intent of the voter was never that this residence would be his permanent home.
Where the majority errs is in assuming that the code does not now provide for these same persons, those whose ballots were challenged here, and other voters who have abandoned their former domiciles and whose residence at the time of an election is "temporary" because they intend at some future, but possibly indefinite, time to move on. In fact, the same provisions that were in effect at the time of our decision in F:J Jolicoew; supra, 5 Cal.3d 565, govern the instant case.
Sections 20 I to 217 did not spring full grown from
the legislative consciousness in 1976. They are no more than renumbered versions of the statutes in effect at the time of Jolicoeur, appearing then as article 3 (§§ 14280-14291) of the 1961 code. Although modified to define and substitute where appropriate "domicile" for "residence," and to reflect cmTent concerns regarding "sexist" use of gender references, these provisions are a continuation of the 1961 statutes which, as construed prior to their reenactment in 1961, do establish the means by which the domicile of the challenged voters is to be established and govern the proper disposition of this case. Overlooking this, the majority create a new rule, one which conflicts with the judicial construction given the prior statutes and with the legislative intent to incorporate that construction. The majority do so notwithstanding the absence of any indication that the Legislature intended to change the law in this respect and in the face of evidence that the result reached here is one which the Legislature intended to avoid. 4 For ease of comparison, I set forth the relevant 1961
provisions (Stats. 1961, ch. 23, § 3, pp. 766-767) and their current counterparts with changes *20 indicated, noting first that subdivision (a) of present section 200 ("Except as provided in this article, the term 'residence' as used in this code for voting purposes means a person's domicile." ) had no 1961 counterpart.
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1961: Section I 4280-"The term of residence is computed by including the day on which the person's residence commenced and by excluding the day of the election ."
1976: Section 201-"The term of domicile is computed by
including the day on which the person's domicile commenced and by excluding the day of the election ."
1961: Section I 4282-"The residence of a person is that place in which his habitation is fixed and to which, whenever he is absent , he has the intention ofreturning."
I 976: Section 200, subdivision (b )-"The domicile of a person is that place in which his 01· 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."
I 961: Section I 4283- "A person does not gain or lose
residence solely by reason of his presence at or absence from a place while employed in the service of the United States or of this State, nor while engaged in navigation, nor while a student of any institution of learning, nor while kept in an almshouse, asylum or prison. This section shall not be construed to prevent a student at an institution of learning from qualifying as an elector in the locality where he resides while attending that institution, when in fact the student has abandoned his former residence."
I 976: Section 206-"A person does not gain or lose a
domicile solely by reason of his or her presence or absence from a place while employed in the service of the United States or of this state, nor while engaged in navigation, nor while a student of any institution of learning, nor while kept in an almshouse , asylum or prison. This section shall not be construed to prevent a student at an institution of learning from qualifying as an elector in the locality where he or she domiciles while attending that institution, when in fact the student has abandoned his or her former domicile."
1961: Section 14284-"A person who leaves his home to
go into another state or precinct in this State for temporary purposes merely , with the intention of returning, does not lose his residence."
1976: Section 202, subdivision (a}--"A person who leaves his or her home to go into another state or precinct in this State for temporary purposes merely, with the intention of returning, does not lose his or her domicile." *21
1961: Section 14285-" A person does not gain a residence in any precinct into which he comes for temporary purposes merely, without the intention of making that precinct his home."
1976: Section 202, subdivision (b }-"A person does not gain a domicile in any precinct into which he or she comes for temporary purposes merely, without the intention of making that precinct his or her home."
1961: Section 14286--"If a person removes to another state with the intention of making it his residence, he loses his residence in this State."
1976: Section 203-"lf a person moves to another state with the intention of making it his or her domicile, the voter loses his or her domicile in this state."
196 I: Section 14287-"If a person removes to another state as a place of permanent residence, with the intention of remaining there for an indefinite time, he loses his residence in this State, notwithstanding that he entertains an intention ofreturning at some future period."
1976: Section 204-"If a person moves to another state as a place of permanent residence, with the intention ofremainino b there for an indefinite time, he or she loses his or her domicile in this state, notwithstanding that he or she intends to return at some future time."
1961: Section 14288-"The place where a man's family
resides is his residence unless it is a place for temporary establishment for his family or for transient objects.
Residence in a trailer or vehicle or at any public
camp or camping ground may constitute a residence for
voting purposes if the registrant complies with the other requirements of this article."
1976: Section 207-"The place where a person's family is domiciled is his or her domicile unless it is a place for temporary establishment for his or her family or for transient objects.
"Residence in a trailer or vehicle or at any public
camp or camping ground may constitute a domicile for
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voting purposes if the registrant complies with the other requirements of this article."
1961: Section 14291-"The mere intention to acquire a new residence , without the fact of removal avails nothing, neither does the fact ofremoval without the intention."
1976: Section 205-"The mere intention to acquire a new
domicile, without the fact of removal avails nothing, neither does the fact of removal without the intention."
A comparison of these 1961 and 1976 provisions should
dispel any doubt as to the legislative intent in enacting the 1976 amendments to the code. The Legislature intended to distinguish the concept of residence for voting *22 purposes from other uses of that term, and to that end adopted the term "domicile," but to continue the substance of the 1961 provisions.
In so doing the Legislature also continued a legislative limitation on the period of time a voter could lawfully vote in the precinct of his former domicile after having abandoned that domicile . That limitation, first enacted in 1973 as section 203.5 (Stats. 1973, ch. 23, § 1, p. 41), became section 217 . lt now provides: "A person duly registered as a voter in any precinct in California who removes therefrom within 28 days prior to an election shall, for the purpose of such election, be entitled to vote in the precinct from which the person so removed until the close of the polls on the date of such election ." These persons, therefore , and no others, are entitled to vote in a precinct in which they are no longer domiciled .
Significantly, the majority fail to explain how the rule they adopt is to be applied to those persons who, while professing that their residence is only temporary, in fact fail over many months to acquire a new domicile. Under the majority's rule, all that is necessary to retain the right to vote in the precinct of one's abandoned domicile is a bona fide belief that one's present living arrangements are only temporary, to a large extent, a subjective determination not easily refuted. How can this construction of the statute be reconciled with the legislative effort to avoid voter abuse and fraud of the type encountered in San Francisco and San Bernardino shortly before the 1976 amendments? Bolinger , supra, explained the relevance of this problem to the amendments: "Until revised and renumbered in 1976, the Elections Code defined the
residence of a voter as 'that place in which his habitation is fixed and to which, whenever he is absent, he has the intention of returning.' Determining a voter's 'intention' is difficult at best and the migration of voters to suburbia seems to have aggravated the problem as became evident in San Bernardino and San Francisco during 1975 and 1976. In San Bernardino it was the migration in part of the younger generation of Mexican-Americans out of the barrio in the city's First Ward to other areas including surrounding cities, such as Colton and Redlands, while retaining or subsequently resuming their registration in the First Ward .... In San Francisco it was the migration of literally thousands of persons from the city to towns in surrounding Bay Area counties while continuing to register and vote in San Francisco, which as the heart of a major controversy over what constituted residence and which, in turn, prompted changes in the state law on residence .... " ... It wasn't until the San Francisco situation dramatized the problem that legislation was introduced to clarify the meaning of residence. [The change] sought to clarify the meaning of voter residence by substituting 'domicile' for 'residence,' the domicile now being the place in which
the *23 individual's habitation is fixed, and to which, 'whenever he or she is absent, the person has the intention of returning."' (Bolinger, supra, pp. 83-86.) This concept of domicile cannot be reconciled with the retention of the right to vote in an abandoned domicile. It was just that approach to "residence" under the former law which the
1976 amendments sought by clarification to eliminate. The majority, however, would construe the change so as to permit the very evil the Legislature sought to overcome-large
numbers of voters returning to abandoned precincts to cast their votes in elections in which they have no stake. The majority blinks at history and the factual context giving rise to the legislation.
While acknowledging the legislative history which confirms that the changes that were made in 1976 sought to incorporate some judicial decisions on the concept of domicile and
residence (maj. opn. at p. 10, the majority fail to grasp the significance of those decisions. As FJ Jolicoew; supra , 5 Cal.3d 565, demonstrates, a voter who has abandoned his domicile acquires a new one at his place of "temporary" residence even if he does not intend that place to be his pe1manent residence. It is the abandonment that is crucial. He may not elect to remain in a state of suspended domiciliation by the subjective expedient of harboring hope that at some future time he will find yet another place to live.
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The majority suggest that under our construction of the statutes there is no standard by which to limit the ability of a voter who claims to have left his former domicile to fraudulently register to vote in the location of his temporary residence. This concern overlooks the much greater incentive to fraud under the majority reading of the statutes . How long may a voter who is not residing in his claimed domicile continue to vote in the precinct of his former residence? How long does his actual residence remain temporary
simply because he claims a subjective intent to find other, more permanent housing? The suggestion that the majority's approach serves to avoid fraudulent registration is simply untenable. To the extent that any objective evidence of the domicile of a voter exists, it lies in his actual physical removal from his former residence and his taking up residence elsewhere. The greater incentive for fraud by far exists if the person who has removed himselfand his possessions from his voting domicile to another location need only declare that he intends to move yet again .
The lengthy trial in this case, the necessity of ascertaining the subjective intent of voters no longer resident in the precincts in which they claimed the right to vote, and the impossibility of ascertaining in the individual case the point at which an "intent" not to remain in the voter's actual residence must be recognized as nothing more than a "hope," all underscore the wisdom of the legislative choice . The rule proposed by the majority invites *24 not only fraud , but also repeated challenges and costly contest proceedings when persons long gone return to vote in the precinct of their former domiciles claiming that their present residence is "temporary" and thus is not yet a "domicile."
The majority also fail to perceive or acknowledge that the rule they create is inconsistent with the express provision in section 204 which excludes from the ballot persons who leave the state intending to remain at their new residence for an indefinite time even if they intend at all times to return to this state; and that in section 207 which permits persons who live temporarily in public camps or camping grounds to establish a domicile at that location even though residence at such locations cannot be presumed to be permanent.
The fear of the majority that some voters may be
disenfranchised upon expiration of the 28-day period for reregistration because they have not yet established a new domicile is unwarranted . Persons who fail during that period to find accommodations in which they plan to remain, are domiciled at the location of their current habitation. The Court of Appeal so held when considering the circumstances of the homeless "residents" of Santa Barbara's Fig Tree Park in Collier v. P Menzel, supra, 176 Cal.App.3d 24.
The result there is consistent with that which I propose.
The county registrar had refused to accept the affidavits of registration submitted by the homeless , claiming that the address was insufficient. The voters were advised that they were legally entitled to vote at their former precinct until they had established new residences . The Cmut of Appeal disagreed and ordered that the voters be registered at the address given on their affidavits .
Construing and applying section 200 to the situation of the homeless who claimed Fig Tree Park as their residence,
the court concluded that the park was a dwelling place
or place of habitation for these citizens, and that their signature on an affidavit giving the address of the park as their place of residence was sufficient to establish a present intent to remain there . The court noted the Legislature has expressly sanctioned domicile in a public camping ground , and reasoned that like a camping ground the park was "a physical area where a person can sleep and otherwise use as a dwelling place ." ( 176 Cal.App .3d at p. 31.) None would argue that these citizens intended to make the park their permanent home, but like the college students here , they had abandoned their former domicile, and for the indefinite future intended to return to the park after temporary absences .
The park was, for voting purposes, their domicile, just as the domicile of the challenged voters here was the location at which they resided at the time of the election . *25
The construction adopted by the majority is both completely unrealistic and contrary to legislative intent. I would affinn the judgment of the Comt of Appeal.
Lucas , C. J., and Kaufman, J., concurred.
The petition of plaintiffs and appellants for a rehearing was denied June 23, 1988. *26
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Footnotes
Strictly for purposes of clarity, we refer in this opinion to a person's physically abandoned home as his or her "former" domicile, even though we hold in this case that the former precinct remains the "current" domicile for voting purposes until a new domicile is acquired . We do this in an effort to distinguish the "former" domicile from the person's current temporary residence and future domicile. 2 According to the trial court, defendant Weed and candidate Mike Rotkin were the two "progressives" among the top four candidates; the other winning candidates, Arnold Levine and Katy Sears-Williams, were "moderates."
Candidate Bill Fieberling, a moderate, actually received the sixth highest number of votes, 107 votes behind Bruce Van Allen, a progressive. The trial court determined that Van Allen had "no stake in this case even though he garnered more votes than Fieberling. Judged by the [nine-to-one] yardstick adopted by the court, Van Allen received precisely as many illegal votes as did Weed ." FN3 Section 20024 of the Elections Code provides: "An election shall not be set aside on account of illegal votes, unless it appears that a number of illegal votes has been given to the person whose right to the office is contested or who has been certified as having tied for first place, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to that other person." 4 The trial court divided the students into the following groups: "1. Persons who are likely to return to the campus to live .... [11] 2. Persons who had evinced an intention not to establish a post-campus domicile and whose testimony on that point was credible .... [11] 3. Persons whose life circumstances showed an intention not to consider their post-campus residence at the relevant time as their domicile .... [11] 4. People who have no place to roost except at the University .... [11] 5. People whose testimony did not persuade me that they clearly should have voted in a different precinct. ... [11] 6. People who, as of October 11, 1983, had a domicile in a precinct other than the one in which they voted."
The trial court found that only those 113 persons in the last category voted illegally . 5 The Court of Appeal explicitly did not determine where the 193 students should have voted: "[T]hose 193 voters voted in a precinct in which they had no fixed habitation, and to which they had no intention to return.
We cannot on this record decide where else each of these individuals could or should have registered to vote. We hold only that each had lost his or her campus precinct voting domicile and therefore voted illegally in that precinct in the election at issue."
6 In England, a fourth alternative, dispositive of the issue presented here, exists. Under the English rule, a person's domicile of origin (i.e., domicile at birth) is revived during the period when the person is traveling from an abandoned domicile to a new domicile of choice. (See Rest.2d Conf. of Laws, § 19, reporter's notes, com. b, pp. 78-79.) The doctrine of revival has not been adopted in the United States. (Ibid.) 7 The dissent's preference for alternative two is primarily based on an erroneous interpretation of ~ Jolicoeur v. Mihaly (1971) 5 Cal.3d 565 ~ 96 Cal.Rptr. 697,488 P.2d 1]. In Jolicoeur we held that newly enfranchised voters between the ages of 18 and 21 had to be treated the same as adults for voting purposes, thus preventing local precincts from requiring young voters to register at their parents' domiciles. Although the 23 ~f~t interprets Jolicoeur as further holding that a voter must be allow1~~<o1Pt~i{; 91J2~!ir~ritJJJs or --her- resicier:1Ge-reQardless-of-whether-that-resicier:1Ge-is-permar:ier:it-or-tempotary , a.-lose -reaciir:ig.of-J0/icoeur WEST.I. A\ (r,)H '),n')hC:, T J--•l'.''Yl"':l!J Ro ,Jto1·fh ~.1,-, rl::,i...-, 1+"' r,r i41'1o "a' I I c.:: ·1G 0..11orn"'f' "''"'t l'Hlr,d,c t w I t Md sno st ar-t e yotfng"1,;,oters in ar case 'C a1meu a" om1c1 ea.way '· rom t e1r·paren s. e express y s a,e Walters v. Weed , 45 Cal.3d 1 (1988)
752 P.2d 443, 246 Cal.Rptr. 5, 45 Ed. Law Rep. 1147
that "[t]he youth ... claims his current residence as his domicile but would be disqualified solely, 'on account of age"' and that "[a]n unmarried minor must be subject to the same requirements in proving the location of his domicile as is any other voter." ( FJ 1d. at p. 571 .) Although in Jolicoeur we discussed the potential temporary status of voting-aged students, we did not hold that such temporary status should be ignored. Rather, we simply affirmed the legislative mandate that a young person's right to vote at his or her current residence should not be abridged solely because of the person's "student status." ( Id. at pp. 576-577, 582.) The trial court expressed concern that the registrar of voters' computer had refused the registration applications of the student voters who had no other address, and on that basis concluded that it was proper for them to use another campus address even though that address was in a different precinct. Permitting an elector to vote at a fictitious address is not the solution to an unlawful refusal to register a voter although such registrations were clearly the least onerous for the students. Mandamus is appropriate to compel the registrar to accept the affidavit of registration for an elector's actual domicile. (See, e.g., Jolicoeur v. Mihaly (1971) 5 Cal.3d 565 96 Cal.Rptr. 697, 488 P.2d 1]; P ea/lier V. Menzel (1985) 176 Cal.App.3d 24 rP 221 Cal.Rptr. 110].)
2 All statutory references herein are to the Elections Code. 3 A similar amendment of the California Constitution followed in 1972 when section 1 (now § 2) was added to article 11, providing: "A United States citizen 18 years of age and resident in this state may vote." 4 The majority suggest that permitting unsettled voters to vote in the precinct of their former domicile is necessary to avoid the danger of "forum shopping." Forum shopping, of course, is just what the challenged voters in this case did. Assuming that such conduct is prevalent, the Legislature has determined that retaining a voting domicile in a precinct in which the voter no longer lives and to which he does not intend to return is the greater of the two possible evils.
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Office of the Attorney General
State of California
Opinion No. 88-891
May 31, 1989
*1 LANCASTER CITIZENS FOR BETTER GOVERNMENT
The Lancaster Citizens For Better Government, as relators, have filed an application with this office for leave to sue Els Groves in quo warranto to test his right to continue to hold the office of councilman of the City of Lancaster. The dispute arises as the result of the maintenance of two separate residences by Mr. Groves.
CONCLUSION
We conclude that leave to sue should be denied.
I. RELATORS CONTENTIONS
The proposed complaint in quo warranto and the verified statement of facts filed by the relators set forth the following factual and legal contentions. Factually, it is pointed out that Els Groves was duly elected to the city council of the City of Lancaster on April 8, 1986 and assumed such office on April 15, 1986. It is alleged that at such time and until about February 24, 1988, Mr. Groves lived within the City of Lancaster at a particular address. It is then alleged that on or about February 24, 1988 Mr. Groves vacated his abode at that address in Lancaster and moved his family and his furniture to a home he purchased in the Rancho Vista development of the City of Palmdale, approximately one and one-half miles south of the City of Lancaster.
It is alleged that on or about March I, 1988, Mr. Groves rented an apartment in the City of Lancaster; that Department of Motor Vehicle records disclose his motor vehicles to have been registered at the Palmdale address through April 1988; that Mrs. Groves registered to vote at the Palmdale address but re-registered at the Lancaster apaitment in April, 1988; and that Mr.
Groves stated during a council meeting on March 21, I 988, and later in a letter to the editor of the Antelope Valley Press, that he intended to maintain a dual residence at the Palmdale home and the Lancaster apartment. Based upon the foregoing facts, relators contend that Els Groves vacated his office as city councilman pursuant to section 36502 of the Government Code and 1770, subdivision (e) of that code. The former section provides that an incumbent vacates such office "[i]f during his term of office he moves his place of residence outside the city limits or ceases to be an elector of the city." The latter section provides that an office becomes vacant if the incumbent ceases "to be an inhabitant of the ... city for which the officer was chosen or appointed or within which the duties of his or her office are required to be discharged." The relators urge that residence or inhabitance as used in these sections requires "legal residence" or "domicile" and not mere habitation. Accordingly they urge that pursuant to the provisions of section 244 of the Government Code, Mr. Els Groves abandoned his "legal residence" or "domicile" in Lancaster when he moved his furniture and family to Palmdale, and began living there. In this respect section 243 of the Government Code provides:
*2 "Every person has, in law, a residence."
Section 244 then provides in part as to residence:
"In determining the place of residence the following rules shall be observed:
"(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 return in seasons of repose;
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LANCASTER CITIZENS FOR BETTER GOVERNMENT, 72 Ops. Cal. Atty. Gen. 63 ... "( b) There can only be one residence:
"(c) A residence cannot be lost until another is gained ... "(f) The residence can be changed only by the union of act and intent.. .. " The California Supreme Comt has "recognized that these Government Code sections which use the term ±residence' actually mean legal residence' or 'domicile' and ... [has] interpreted them accordingly .... " ( Walters v. Weed (1988) 45 Cal.3d I, 7.).
Relators therefore urge I) that under the facts Mr. Groves demonstrated the requisite "union of act and intent'' necessary to change his " legal residence" or "domicile " from Lancaster to Palmdale when he moved there with his family, and hence 2) he automatically vacated his office of city councilman by such change pursuant to section 36502 and section 1770, subdivision ( e) of the Government Code.
IL CONTENTIONS OF THE PROPOSED DEFENDANT
In his response to this application for leave to sue, Mr. Groves, the proposed defendant , contends that he at all times has remained a domiciliary and elector of the City of Lancaster and that his move to Palmdale was intended to be and has always been temporary .
In suppo1t of this, Mr. Groves points out in his statement of facts that he is a sales representative for the Rancho Vista development of the City of Palmdale . He states that he saw this development as a source of investment. Accordingly, he states that he purchased the home in Palmdale solely as an investment and moved there to be present while improvements were being made. He states that he considered it to be too expensive to retain his former abode in Lancaster while temporarily living in Palmdale ; that he still owns that property (a condo) which he has rented out; and that he moved a portion of his possessions into an apartment in Lancaster, which he shares with his daughter, before moving temporarily to the Palmdale house. He also states that he has changed his voter registration and car registration to the Lancaster apartment address . He also states that he has never filed a homeowner's exemption on the Palmdale house . And as of the date of filing his response to the instant quo warranto application with this office, Mr. Groves stated that he had just sold the Palmdale house and contemplated completely moving back to Lancaster in the near future. By letter dated December 22, 1988, Mr. Groves advised us that he had actually moved to a newly purchased home in Lancaster, thus ending his dual residency.
In further support of his position that he moved to Palmdale with the intent that such move was for only temporary purposes, Mr. Groves states that prior thereto he discussed the matter with the city manager , the city attorney, his son-in-law (an attorney), his fellow council members, and the League of California Cities, all of whom agreed that he could temporarily move to the Palmdale house without giving up his residence in Lancaster for purposes of retaining to his office . Additionally , Mr. Groves states that this is the fifth property he has purchased as an investment to demonstrate that this is not an unusual thing for him to do. However, he does admit that this is the first of these to which he has actually moved . *3 In addition to contending that, under the foregoing facts, he did not exhibit the requisite union of act and intent to change his domicile or legal residence under section 244 of the Government Code, Mr. Groves relies upon section 202 of the Elections Code, which provides :
"(a) A person who leaves his or her home to go into another state or precinct in this state for temporary purposes merely, with the intention of returning, does not lose his or her domicile. "(b) A persons does not gain a domicile in any precinct into which he or she comes for tempo rary purposes merely, without the intention of making that precinct his or her home." 26 of36 January 21, 2025, Item #4
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We have also ascertained that at all times Mr. Groves was and has been registered to vote in the city of Lancaster.
III. THE APPLICABLE LAW
As noted at the outset, relators rely upon sections 36502 of the Government Code, as well as sections 244 and 1770, subdivision ( e) of that Code, in urging that Els Groves vacated his office of city councilman. Re la tors are correct in their assertion that these are the main provisions to be considered herein.
Section 36502 of the Government Code now and at all times material herein provides:
"A person is not eligible to hold office as councilman, city clerk, or city treasurer unless he is at the time of assuming such 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 22842 of the Elections Code.
"If, during his term of office, he moves his place of residence outside of the city limits or ceases to be an elector of the city, his office shall immediately become vacant." (Emphasis added.) Also as noted at the outset, section 244 of the Government Code provides the rules for determining "residence" which under the case law has been determined to mean "legal residence" or "domicile." Section l 770, subdivision ( e) provides that loss of "legal residence" or "domicile" will constitute a vacation of office where local residence is a qualification for office.
In 1965 this office had the occasion to consider these legal provisions in a quo warranto application. By letter opinion (I.L. 65- 147) we granted leave to sue to test the right of a city councilman to continue to hold office in the town of Los Altos Hills.
The councilman claimed to have taken up only temporary residence in Mountain View while he searched for a new home in Los Altos Hills.
In this letter opinion we discussed at length the foregoing Government Code provisions as well as prior opinions of this office.
These opinions included 35 Ops.Cal.Atty.Gen. 198 (1960) and 30 Ops.Cal.Atty .Gen. 6 (1957) , both relied upon relators herein.
In those opinion we had also granted leave to sue city councilmen who had removed their physical residences or abodes outside of their cities. In our l 965 letter we pointed out the basic legal and factual issues which inhere in the second paragraph of section 36502 and related provisions such as sections 244 and I 770, subdivision (e) of the Government Code. These are:
*4 I. What is meant by the term "residence" as used in the second paragraph of section 36502 . Does it mean "legal residence or domicile"? Does it mean physical habitation or abode? Or does it mean both?
2. Whether the council person in fact lost his or her "legal residence" or "domicile" within the city by moving from the city.
We further pointed out that whether the council person retains a "legal residence" or "domicile" within the city is germane not only to the possible meaning of residence in section 36502 of the Government Code, but is crucial to his or her continuing status as an "elector" of the city, an additional requirement of section 36502 . Relying upon the then applicable constitutional and statutory provision, we pointed out that "residence" for purpose of being an "elector" means "domicile" (See now Cal.
Const. , aii. Il, § § 2 and 3; Elec. Code, § § 17, I 8, 100, 200 et seq.; Walters v. Week, supra, 45 Cal.3 d I.) Interestingly, we find little in the law since 1965 to modify our basic analysis set forth above. Section 36502 of the Government Code, and section 1770, subdivision (e) of the Government Code remain the same. Although the California Constitution and the Elections Code have been amended somewhat with respect to qualifications to vote, the basic requirement still is that residence for purposes of being an "elector" means "legal residence" or "domicile." Accordingly, in order to be an "elector" of a city, one must still be a domiciliary thereof.
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No new cases have been decided interpreting sections 36502 and 1770, subdivision ( e ). The only case law of some significance appears to be Fenton v. Board of Directors (1984) 156 Cal.App .3d 1107. That case involved the question whether the director of a community service distr ict vacated her office by taking up a physical residence outside of the district. Section 61200 of the Government Code provides that directors must "be registered electors residing within the boundaries ... " of the district. The director had retained her voter registration within the district. The trial court and the court of appeal both determined that she was still domiciled in the district within the meaning of the section 61200 of the Government Code. However , all parties and the court agreed that the word "residing " meant "domiciled " in this case or that it was to be governed by the provisions of section 244 of the Government Code. Accordingly , the case, although involving a code section analogous to section 36502, is not clear analogous authority for the proposition that residence as used in section 36502 of the Government Code means domicile.
We have, however , just recently issued some opinions of this office where significantly the issue was whether local officials resided within the boundaries of their local agency to qualify them to hold office. We equated "residence " with "domicile" by virtue of section 244 of the Government Code . Thus in 72 Ops.Cal.Atty.Gen. 8, (1989) we denied leave to sue in quo warranto to test the right of a city councilman to hold office where he maintained two separate residences. That opinion involved not section 37502 of the Government Code , but section 34882. Otherwise it involved issues similar to those herein. 1 And in 72 Ops.Cal.Atty.Gen . 15 (1989) we denied leave to sue to test the right of four members of a board of directors of a county water district to hold office where they each maintained multiple residences. In that opinion the requirement was that each should be "a voter" of the district to hold office, also raising issues similar to those raised herein as to the "domicile" of the board members. *5 In the first cited 1989 opinion above we discussed at length the concept of "residence" or "domicile. " For example, we stated at 72 Ops.Cal.Atty .Gen. at page 12:
"While Mr. Silva may have established 'residency' in the City of Huron, the question becomes whether or not he is domiciled in that city pursuant to Government Code sections 348 82 and 1770( e ). "The test for determining a person's domicile is physical presence plus an intention to make that place his permanent home. (Fenton v. Board of Directors , supra , 156 Cal.App.3d at 1116.) In applying this test, reviewing courts have looked at a number of factors in order to determine a person's domicile . (Id.) For example , where a person votes, acts, and declarations of the party involved and a person's mailing address . (Id., citations omitted.) "To insure that everyone has a domicile at any given time, the statutes adopt the rule that a domicile is not lost until a new one is acquired. Government Code section 244(c) ; Walters v. Weed, supra , 45 Cal.3d 1,7." And in 72 Ops .Cal.Atty.Gen . at pp.13- 14, we further elaborated on the concept of"Iegal residence" or "domicile" and the tests to be applied , relying heavily on Fenton v. Board of Directors , supra , 156 Cal.App.3d 1107: We stated in part:
"In the present application , there is evidence in the Declaration of Silva to indicate substantial personal activity in and about his Kerman home or± residence.' However , there is also significant personal activity associated with the Huron residence. While the question of domicile is a mixed question of law and fact (Fenton v. Board of Directors , supra , 156 Cal.App.3d at 1117), many factors enter into the equation , including where an individual is registered to vote and his or her address for mail (Ballfv .
Public Welfare Department (1957) 151 Cal.App.2d 784, 788- 89), where 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 (Elec .Code § 211 ). However, the critical element is that of intent. While declarations of intent are significant , they are not determinative. The acts must be examined as well. Mauro v. Dept. of Mental Hygiene ( 1962) 207 Cal.App.2d 381 , 389.
"An examination of all the facts presented to us indicates that .Mr. Silva intended to maintain his domicile in the City of Huron.
The facts presented to us are not seriously in dispute. 28 of 36 January 21, 2025, Item #4
WESTLAW © 2025 Thomson Reuie 1·s. f\Jo claim to original U.S Government Works. 4 LANCASTER CITIZENS FOR BETTER GOVERNMENT, 72 Ops. Cal. Atty. Gen. 63 ... "We are also 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." A somewhat similar approach was taken by this office in the second 1989 opinion, cited above, with respect to the county water district directors.
IV. THE ROLE OF THE ATTORNEY GENERAL
In 72 Ops.Cal.Atty .Gen. 8, 9-10 (1989) , supra, we summarized the role of the Attorney General in Quo Warranto matters in part as follows:
*6 "Historically, the Attorney General has not granted leave to sue in quo warranto unless some 'public purpose' would be served (e.g., 36 Ops.Cal.Atty.Gen. 317, 319 (1960) ; 29 Ops. Cal.Atty.Gen . 204, 208 (1957) ; 27 Ops.Cal.Atty.Gen. 225,229 (1956) ; 26 Ops.Cal.Atty.Gen. 180, 190 (1955); 21 Ops.Cal.Atty.Gen. 197, 201 (1953) .) The 'public purpose' requirement has been viewed as requiring 'a substantial question of law or fact which calls for judicial decision .' (25 Ops.Cal.Atty.Gen . 237, 240 (1955) .) While '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 questions of law that should be determined by a court' (25 Ops.Cal.Atty.Gen. 332 , 341 (1955); 24 Ops.Cal.Atty.Gen. l 46, 151- 152 ( 1954); 19 Ops.Cal Atty.Gen. 87, 88 ( 1952); 17 Ops.Cal.Atty.Gen. 46, 47 (1951 ); 15 Ops.Cal.Atty.Gen. 62, 63 (1950) ), the mere existence ofa 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 proposed realtor to sue in quo warranto .
In City of Campbell v. Mosk , supra, 197 Cal.App.2d 640, the court said:
" 'We do not believe ... that the debatable issue inevitably produces the quo warranto. Indeed, the Attorney General's exercise of discretion is posited upon the existence of a debatable issue. To hold that the mere presentation of an issue forecloses any exercise of discretion would mean, in effect, that contrary to the holding in the Lamb [v. Webb (1907) 151 Cal. 451] case, the Attorney General could exercise no discretion .
"The crystallization of an issue thus does not preclude an exercise of discretion, it causes it. " '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 ..... (197 Cal.App .2d at 650; 67 Ops.Cal.Atty.Gen. 151-154.)' "
V. DECISION
We conclude that no substantial issue of law or fact has been raised by this application for leave to sue. We further conclude that it would not be in the public interest to grant leave to sue.
As to potential issues of law, we are involved herein with a dual residence situation. Such was not the case in our 1965 letter opinion, discussed ante, nor in 35 Ops.Cal.Atty.Gen. 198 (1960) , supra, or 30 Ops.Cal.Atty . Gen. 6 (1957) , supra. Those quo warranto applications involved councilmen who moved from their cities completely, albeit for allegedly temporary purposes.
If Els Groves can be said to have retained his "domicile" or "legal residence" in Lancaster by his dual residence , then no issue of law is raised as to the interpretation of section 36502 of the Government Code. No matter what interpretation is legally to be placed upon this term "residence" in section 36502, he would meet such requirements by virtue of his dual residence. And, as noted, we have ascertained that he has always been registered to vote in Lancaster, thus verifying his status as both an " elector" and "voter at all times material herein .
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WESTLAW © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 LANCASTER CITIZENS FOR BETTER GOVERNMENT, 72 Ops. Cal. Atty. Gen. 63 ... *7 Accordingly , the only possible material issue we see presented by this application is the mixed question of law and fact as to whether Els Groves retained his "domicile" or " legal residence " in Lancaster when he moved to his Palmdale house.
In our view the facts as presented to us by Els Groves as well as the fact that he at all times retained his voting residency in Lancaster overwhelmingly support the view that he retained his "domicile" there. As noted by us in our recent opinion , 70 Ops.Cal.Atty .Gen. 8, 13 (1989) , relying heavily on Fenton v. Board of Directors , supra, 156 Cal.App .3d 1107, 1117 to deny leave to sue Councilman Silva:
"The Fenton case is indeed very similar to the Silva situation. The burden of proving residence is on the party alleging it. (Catsiftes v. Catsiftes (1938) 29 Cal.App.2d 207, 210.) In 8 Ops.Cal.Atty.Gen. 221 (1946) , this office denied leave to sue in quo warranto under similar factual circumstances , finding that direct evidence of lack of intent to change residence, including the proposed defendant's declaration of his intent, outweighed circumstantial evidence connecting the proposed defendant to another residence . The evidence is heretofore presented appears to lead to the same conclusion. (See Fenton v. Board of Directors , supra , 156 Cal.App .3d 1107, 1117.)"
We believe we have the same situation herein, that is, very strong direct evidence of Els Groves intent versus only some circumstantial evidence to the contrary.
Finally, we believe that it would not be in the public interest to grant leave to sue in quo warranto . At this juncture we note this is the second quo warranto application on this issue which has been filed with this office from the City of Lancaster since February 24, 1988. The first , filed on behalf of the city itself, was withdrawn. This matter has been an issue in the city for over a year. We do not believe that we should permit the matter to continue at issue for months , or even perhaps years, unless we are of the belief that a strong case for ousting Mr. Groves exists. We believe Mr. Graves's sale of the Palmdale property and his complete return to Lancaster weakens the relator's case to the point where a successful prosecution is extremely doubtful.
Accordingly, we do not believe it would be in the public interest to burden either the city or the courts with this problem, but believe that it should be considered to have become moot by Mr. Groves sale of the Palmdale home and his complete return to the City of Lancaster. (Cf. 36 Ops.Cal.Atty .Gen. 317, 319-320 (1960) ; 35 Ops.Cal.Atty.Gen. 115, 119 (1960) .) For the foregoing reasons , leave to sue is denied .
JOHN K. VAN DE KAMP
Attorney General
Clayton P. Roche
Duputy
Footnotes
Government Code section 34882 , applicable to a city manager forms of government , provides :
"A person is not eligible to hold office as a member of a municipal legislative body unless he is otherwise qualified, resides in the district and both resided in the geographical area making up the district from which he 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 22842 of the Elections Code ."
72 Ops. Cal. Atty. Gen. 63 (Cal.AG .}, 1989 WL 429202
£ n<l of' Docu ment '<_'.· 2025 Thomson Reuters. No chum to or iginal U.S. Governm~.nt Works 30 of 36 January 21, 2025, Item #4
WEST AW © 2025 Thomson Reuters. No claim to onginal U.S Government Wmks. 6 The California Municipal Law Handbook» 1 Nature of Municipal Corporations» III. INTERNAL ORGANIZATION OF CITIES » § 1.184 B. City Council » § 1.190 4. Vacancies and Termination of Office » b.
Common Bases for Finding of Vacancy»
§ 1.193 (2) Nonresidence
A city council member who moves their residence outside the city or district from which they were elected immediately vacates their office. Govt C §36502(~)_( citY.), §34882 ( district). See Govt C § 1770(f) . See also 72 Ops Cal Atty Gen 63 (1989) (applying rules).
Legal residence, also referred to as "domicile," is defined as physical presence combined with an intent to remain. Fenton v Board of_Dirs. (1984) 156 CA3d 1107, 1112. A person has a legal residence at all times and retains a prior legal residence until a new residence is established. Walters v Weed (1988) 45 C3d l ,J_. Moreover, a temporary move outside of the city's boundaries with the intent to return does not create a loss of domicile. See 101 Ops Cal Atty Gen 42 (2018) ( opining that council member temporarily moving in with in-laws in another city after expiration of lease did not result in loss of domicile when council member was actively seeking to lease new residence within city). A number of statutes provide aids to determine residency. See, e.g.,Elec C §2021 (temporary departure or stay does not affect residence), .§2031 (homeowner 's property tax exemption and renter's credit can create rebuttable presumption of residence); Govt C §244 (rules regarding residency). 31 of36 ATTACHMENT D January 21, 2025, Item #4
The California Municipal Law Handbook» 1 Nature of Municipal Corporations» III. INTERNAL ORGANIZATION OF CITIES » § 1.184 B. City Council » § 1.190 4. Vacancies and Termination of Office» b.
Common Bases for Finding of Vacancy»
§ 1.194 (3) Abandonment
An office may be vacated by acts or words of the officeholder indicating an intent to relinquish the office; this doctrine can be useful to give effect to a technically imperfect resignation ( Walter v Adams ( 1952) 110 CA2d 484,489 ):
In order to constitute an abandonment of office, the abandonment must be total, and under such circumstances as clearly to indicate an absolute relinquishment. Moreover, the officer should manifest a clear intention to abandon the office and its duties, although his intention may be inferred from conduct. If the acts and statements are such as clearly indicate absolute relinquishment, a vacancy is thereby created without the necessity of a judicial determination.
A statutory version of this rule appears in Govt C §36513, which provides 60 days' unexcused absence from council sessions ( or 70 days if the council meets once a month or less frequently) will vacate the office of the absent council member. See Govt C § 1770 ( other events causing vacancy). The Attorney General has opined failure to discharge the duties of a redevelopment agency board member for 3 months in contravention of Govt C .§l 770(g). does not vacate the city council seat of the absent member. 67 Ops Cal Atty Gen 459 (1984). 32 of 36 January 21, 2025, Item #4
The California Municipal Law Handbook» 1 Nature of Municipal Corporations» III. INTERNAL ORGANIZATION OF CITIES » § 1.184 B. City Council »
§ 1.202 5. Challenges to Right to Hold Office
If it appears a person holds a public office illegally, the Attorney General, or any person acting by leave of the Attorney General, may file an action in quo warranto to vacate the office. CCP §.§803- 811 . Such an action is the exclusive remedy in cases when it is available. NicoloJ2_ulos v City_giLawndale (2001) 91 CA4th 1221, 1225. 33 of 36 January 21, 2025, Item #4
The California Municipal Law Handbook» 3 Elections» III. CANDIDATE QUALIFICATIONS» III. CANDIDATE QUALIFICATIONS
§3.33 A. Residency Requirement
A candidate must be a registered voter of the city at the time nomination papers are issued. Govt C §.§34904, 36502. See also Elec C §201 (held unconstitutional on other grounds in Schaefgr v Townsend (9th Cir 2000) 215 F3d 1031 ). A candidate for a municipal legislative body must maintain a legal residence or domicile within the city or, if elected by or from a district, be a resident of the geographical area comprising the district from which they are elected. Govt C §34882; Elec C §349 (defining "residence"). A determination of domicile rests on a combination of conduct and intent. See 87 Ops Cal Atty Gen 30 (2004).
NOTE ► Residency and other issues affecting a person's right to hold or exercise public office are decided by quo warranto actions, which must be either initiated or approved by the California Attorney General. CCP .§.§803- 811 ; Rando v Harris (2014) 228 CA4th 868; 87 Ops Cal Atty Gen 30 (2004). 34 of 36 January 21, 2025, Item #4
The California Municipal Law Handbook» 3 Elections » III. CANDIDATE QUALIFICATIONS » B.
Qualifications for Particular Office »
§3.35 2. Qualifications for Council Member, Clerk, or Treasurer To hold the office of council member, clerk, or treasurer, a person must be an elector of the city at the time of assuming office and a registered voter at the time nomination papers are issued. If a candidate moves their residence to a place outside the city limits or ceases to be an elector, the office held by that person immediately becomes vacant. Govt C §36502.
NOTE ► An "elector" is any person who is a U.S. citizen at least 18 years of age and, except as specified in Elec C §321 (h)., a resident of an election precinct on or before the day of an election. Cal Const art 11,_§2.; Elec C .§321(f!). A voter is an elector who is registered as such. See Elec C §359. 35 of 36 January 21, 2025, Item #4
The California Municipal Law Handbook» 3 Elections» V. VOTERS AND THE VOTING RIGHTS ACT» A.
Voter Qualifications »
§3.63 2. Determination of Residence and Domicile
Residence for purpose of voting means a person's domicile. Elec C §349(.~).. Domicile is defined as that place where
• A person's habitation is fixed;
• That person intends to remain; and
• That person intends to return after an absence.
Elec C §349(.h) ..
At a given time, a person may only have one domicile. Elec C §349(.h).. See also Elec C §.§2020- 2035; Walters v Weed (1988) 45 C3d 1,.1; Collier v Menzel (1985) 176 CA3d 24,.ll. 36 of 36 January 21, 2025, Item #4