Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS101423, Aurelio Munoz, Judge.
Bell, McAndrews & Hiltachk and Paul T. Gough; Robert S. Gerstein for Defendant and Appellant City Elections Official Manuela Giron.
Albert Robles; and Eduardo Olivo for Cross-defendants, Respondents and Cross-appellants Don A. Huff, Alejandro Lopez, David Johnson, Miguel De Loera, David Chuha, Robert Cibrian, Juan Garcia and Denise Salazar.
Raymond G. Fortner Jr., County Counsel, and Judy W. Whitehurst, Principal Deputy County Counsel, for Cross-defendant and Respondent Los Angeles County Registrar-Recorder/County Clerk Conny B. McCormack.
WOODS, J.
This appeal arose out of an action filed by the elections official of the City of Vernon, Bruce Malkenhorst, Jr. (the “Elections Official”) for an order pursuant to Elections Code section 2213 directing the Los Angeles County Registrar-Recorder (the “Registrar”) of voters to cancel the voter registrations of eight individuals who had registered to vote in the April 2006 Vernon municipal elections. The Elections Official argued that the eight voter registrations should be cancelled because (1) the location they had listed as their residence could not legally serve as a domicile for the purposes of the California Elections Code; and (2) the registrations were made pursuant to a fraudulent scheme purportedly concocted by three other individuals—Eduardo Olivo, Cris Summers and Albert T. Robles—to take over Vernon. After a bench trial the court concluded that the voters were entitled to judgment because they were legally domiciled in Vernon when they registered to vote and that the Elections Official had not demonstrated that the voters had registered pursuant to an illegal or fraudulent scheme in violation of the California Elections Code.
After the trial Mr. Malkenhorst was replaced as the city’s elections official by Manuela Giron. Ms. Giron has been substituted in as the appellant in this matter.
References to statute pertain to the Elections Code unless otherwise indicated.
On appeal, the Elections Official claims the court misapplied the law of domicile and erred in concluding that the registration of the voters was not otherwise fraudulent. As we shall explain, the evidence presented at trial demonstrated the voters had satisfied the requisite domicile requirements under the law and also supported the trial court’s legal conclusion the Elections Official failed to prove that the voters were registered in a manner that violated the Elections Code such that their registrations must be cancelled. Accordingly we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts described below emerged during the bench trial in this matter.
Vernon.
The City of Vernon is a small industrial charter city not far from downtown Los Angeles. It has few residential units, and of those that exist many are owned by the city and occupied by Vernon city employees who pay rents well below the market rate for the county. As of January 2006 approximately 90 registered voters lived in Vernon. Prior to 2006 Vernon had not conducted a contested municipal election in 25 years and many of the same council members and city officials had remained in power for more the 30 years. The city has five city council members, one of whom serves as mayor. For the last 50 years members of the founding families continued to retain positions of power in the city government.
46th Street Property.
In 2005, 2721 E. 46th Street was a 1,440 square foot commercial building in Vernon owned by Abdolvahid Eskandarian, who had purchased the building in 2003 for $180,000. The building (hereinafter known as the 46th Street Property) was zoned for residential use, though was not at the time designed for residential occupancy. Eskandarian had leased the building to T.K. Productions to use as a music studio through 2009. In the summer of 2005, Cris Summers had approached Eskandarian about purchasing the property on behalf of Eduardo Olivo. Eskandarian was not initially interested in selling the property, but eventually agreed to sell it for $450,000; the sales contract listed “Pacific Properties LLC” as the buyer. Olivo claimed to be the managing member of the LLC. The purchase contract indicated a closing date for February 28, 2006, but Summers expressed an interest in possession by the buyer to occur by January 13, 2006.
Pacific Properties, LLC is an entity registered to a third party who claimed to have no knowledge of the transaction and denied authorizing Summers or Olivo to act on its behalf. Olivo stated that “Pacific Properties” was the shorthand name for “Atlantic Pacific Properties” an entity which he claimed to own and control.
In early January 2006, Olivo approached the current tenant, T.K. Productions and paid it $35,000 to assume the lease and vacate the premise immediately. At trial, Summers claimed that Eskandarian knew about the transaction. Eskandarian testified that he realized that the buyer would work something out with the current tenant and knew that the buyer was going to buy T.K. Productions out of the lease, but Eskandarian testified that he thought the building would remain empty until after the close of escrow. Eskandarian also denied any knowledge that the new intended use of the 46th Street Property would be a residence.
Under the lease between T.K. Productions and Eskandarian, T.K. Productions could not assign the lease without paying Eskandarian $500 and obtaining Eskandarian’s consent.
The Eight Voters .
Beginning on January 6, 2006, eight unrelated individuals, respondents in this action: Don A. Huff, Alejandro Lopez, David Johnson, Miguel Deloera, David Chuha, Robert Cibrian, Juan Garcia and Denise Salazar all moved into the 46th Street Property (the “Voters”).
The Voters had signed a residential lease agreement between themselves and Pacific Properties, LLC to rent the 46th Street Property for a total of $2,500 a month (or approximately $500 per bedroom). The interior of the property had been renovated and subdivided into bedrooms, a bathroom and kitchen area. Summers represented herself as the property manager and the Voters believed that Olivo either owned or was in the process of purchasing the property. The Voters believed that they were legally occupying the 46th Street Property with the knowledge and consent of the owner.
Testimony of the Voters further indicated that they had each moved into the property between January 6 and 9, 2006. The Voters had moved in all of their personal belongings into the rooms. They each testified that they had notified family and friends they had moved to Vernon and filed a change of address with the post office and each also notified DMV of their new Vernon address.
Several of the Voters, namely Cibrian, Garcia, Salazar and Lopez had known each other from high school and others, Johnson, DeLoera, Chuha and Huff had either worked together at some point or knew Olivo. With the exception of Huff all of the Voters appeared to be in their early twenties and had completed no formal education beyond high school. They had all held temporary, low- paying jobs in various fields including construction and manual labor. Before moving to 46th Street, each of the Voters had lived with relatives, or friends. They all had shared bedrooms, or slept on the floor, on couches or in vehicles. Few of the voters had ever been to Vernon nor did any of them claim any connection or knowledge about the city before they moved to the 46th Street Property. Each claimed that the move to 46th Street in Vernon—even if it meant sharing a living space with strangers was a step up for them because it gave them more space, it was closer to their respective jobs or job prospects or because the rent was cheaper ($250 to share a room) than what they had been paying before. All of them told the court they expected to live permanently in Vernon and had no intent to live elsewhere.
Albert T. Robles and Alejandro Lopez are cousins. Robles had also referred Lopez to participate in training to install satellite dishes.
The Elections Official presented evidence that Robles and Summers were involved with an satellite dish installation company, Horizon South Services, Inc. and that certain voters, namely Lopez and Johnson had done work for Horizon South prior to and after the move to the 46th Street Property. The Elections Official further purported to show that Voters Cibrian, Garcia, Chuha and DeLoera were recruited to work for Horizon South when they moved to Vernon. Nonetheless, with the exception of Lopez, these Voters either denied such contentions or denied any specific knowledge of Horizon South, and even Lopez denied that he was aware of any connection between Robles or Summers and Horizon South.
In addition, even though none of them had undergone a credit check, paid a rental deposit or first month’s rent to move in, they all denied they had been promised housing, employment or compensation in exchange for their votes or to register to vote. They each indicated they had worked around the building, cleaning and fixing it up in various ways in exchange for their first month’s rent. With the exception of Huff the other Voters testified that they were unaware of the April 2006 city election prior to moving to the property and did not move to the city to vote in the election.
Between January 9 and 13, 2006, all of the Voters registered to vote and listed the 46th Street Property as their home. All of them denied that they were instructed by Summers, Olivo or any one else that their occupancy at 46th Street was conditioned on their registering to vote. In addition, on January 13, 2006—the last day to file nomination papers for the April 2006 election, three of the voters and residents of the 46th Street Property—Huff, Lopez and Johnson—filed papers and nomination forms with the City of Vernon to run for city council and listed 46th Street as their home address. The other voters residing at 46th Street had signed the nomination papers.
When asked during the trial what motivated him to run for city council, Huff stated that he had decided to run for city council in 2005 before he moved to the city. Huff testified that after he decided to run for office and to move to Vernon, he asked Olivo whether he was aware of any inexpensive property he could rent in the city; Huff stated he was going to move to Vernon even if it meant that he would live out of his car. Huff denied that Olivo assisted him financially in making the move to Vernon. He indicated that he was thinking about moving closer into Los Angeles (from Baldwin Park) for work reasons and visited Vernon to attend city council meetings. He stated that he did not like the way he had been treated when he attended Vernon city council meetings in the Spring of 2005 and he suspected the city was corrupt and fraught with conflicts of interest because the city owned a lot of the housing occupied by city employees and because the housing was inexpensive. Huff testified that he encouraged Johnson and Lopez to run for city council and that Huff asked the other residents of the 46th Street Property to register and vote for him.
At some point in the past Huff had unsuccessfully run for city council in Baldwin Park.
Johnson stated that he decided to run because he was a competitive person and he felt inspired by the example set by Huff and Lopez. Lopez stated that before moving to Vernon he had not thought about running for public office and could not articulate a reason he should run, but when Huff mentioned it to him he thought it was just something to do.
Because the records of the county registrar-recorder had listed the 46th Street address as a commercial business, the registrar conducted an investigation of the Voters’ registrations to determine whether anyone lived at the address. An on-site visit by a Registrar employee revealed that the Voters were living in an industrial building that had been renovated into housing. The Registrar’s photographs revealed that the space had been divided into bedrooms and had been furnished with household items and had plumbing. The Voters provided the Registrar a copy of the residential lease agreement. After the Registrar conducted its investigation, the Registrar coded the eight registrations as “active.”
Efforts to Evict the Voters and Cancel their Registrations.
In January 2006, Malkenhorst was the assistant city attorney, clerk and elections official for the city of Vernon. When Huff, Lopez and Johnson went to the city clerk’s office to file their nomination papers to run for city council, Malkenhorst became suspicious because they acted “nervous.” Malkenhorst testified that he was surprised that on the last day to file nomination papers three new people appeared with nomination forms signed by people all occupying the same address. He suspected that perhaps they did not live in the city—that they were precinct shopping. Malkenhorst began his own investigation of the individuals over the Internet which revealed to him a “daisy chain” connection between Summers, Olivo and Albert T. Robles. Vernon City investigators were also sent to the 46th Street Property to inspect it. They found that some of the windows failed to comply with fire and safety codes. The Vernon Building Department determined that the 46th Street Property was unsafe for occupancy because of the violations and ordered the occupants to vacate the premises. The Vernon city officials also contacted Eskandarian about the occupancy and code violations. On January 20, 2006, Eskandarian cancelled the escrow, but after Olivo deposited the full sales price in escrow, Eskandarian indicated that he would proceed with the sale if he received certain assurances including that he would be indemnified for any losses arising out of the use of the property prior to the close of escrow, and that the property would only be occupied by the former tenant until the close of escrow. On January 23, 2006, Olivo attempted to provide Eskandarian with a written assurance. However, on January 25, 2006, Eskandarian cancelled the sale once and for all, and requested the assistance of the Vernon police to evict the Voters. On January 26, 2006, the police evicted the Voters from the 46th Street Property.
Albert T. Robles had been convicted of numerous federal felonies in July of 2005 based on his actions when he served as Treasurer of the City of South Gate. During the trial the Elections Official presented evidence that Robles had been present at the 46th Street Property helping clean and prepare it for occupancy and that at one point he was seen at one of the hotels where the Voters were residing after they had been evicted. During their respective testimony, all of the Voters stated that they either did not know Robles or knew him by sight but had no real contact with him before, during or after their occupancy at the 46th Street Property.
From the date of eviction until March 2006, the Voters were housed in various hotels in Vernon at the expense of Olivo. The Voters indicated that Olivo and/or Summers arranged for and paid for the motels because they felt responsible for causing the Voters to be evicted and to make up for the fact that although the Voters had all signed the month-to-month rental agreement and worked on the property, none of them had occupied the 46th Street Property for an entire month prior to being evicted.
Thereafter, the Voters lived at various locations throughout the city, including sleeping in tents or cars parked at the 46th Street Property or on city streets.
In March 2006, the court issued a preliminary injunction prohibiting the Voters from occupying the 46th Street Property or camping outside the building.
On January 27, 2006, Malkenhorst sent the Voters letters indicating that their respective voter registrations had been cancelled. Malkenhorst also sent Huff, Lopez and Johnson letters indicating that their nomination forms had been rejected. Later that day, the Vernon City Council acted to cancel the April 13, 2006, election because the three incumbents were running unopposed.
Litigation
On February 1, 2006, the Voters filed a petition for a writ of mandate in the superior court seeking reversal of the cancellation of their voter registrations by the City of Vernon. Thereafter, the Vernon Elections Official filed a cross-complaint in the superior court seeking an order directing the Registrar to cancel the Voters registrations under Elections Code section 2213. The Elections Official claimed that the registrations were illegal because Voters were not domiciled in Vernon when they registered and that their registrations were made pursuant to a plan by Robles, Summers and Olivo to take over the city of Vernon. (The Election Official’s Cross-Complaint.)
On March 10, 2006, the court granted the Voters petition to re-instate their voter registrations on the grounds that only the Registrar had the authority to unilaterally cancel voter registrations. The court severed the Elections Official’s Cross-Complaint. Voters filed a demurrer to the cross-complaint asserting among other arguments that the Vernon Elections Official acting in his official capacity lacked standing to seek the cancellation of voter registrations under Election Code section 2213, that the Elections Official had improperly used city funds to support the litigation and that pursuing the action violated conflict of interest rules. The trial court overruled the demurrer in April 2006.
On March 27, 2006, Voters Cibrian and Garcia filed a cross-action seeking an order to cancel the voter registrations of 60 other registered voters in the city of Vernon alleging voter fraud and claims that the voters were not domiciled in Vernon. On June 26, 2006, the trial court sustained the demurrer to Cibrian’s and Garcia’s lawsuit.
In addition, Voters and council candidates Huff, Lopez and Johnson sent a letter to the other registered voters in the city advising them that they could be subject to criminal proceedings if they voted in the election but owned property elsewhere. Huff, Johnson and Lopez also filed unsuccessful actions to disqualify the mayor and other incumbent city council members from running in the April 2006 election.
All of the Voters, except DeLoera, voted in the April 11, 2006, Vernon election. The lower court ordered the ballots to remain sealed and uncounted until the resolution of the legal claims in the trial court.
By order of the trial court, the ballots remained sealed and were not counted until judgment was entered in this action in October 2006. Ultimately, the incumbents were re-elected and Huff, Johnson and Lopez were defeated.
The Elections Official’s Cross-complaint proceeded to a bench trial in May and June 2006. After closing arguments, the court announced its decision denying relief. In announcing the decision, the court stated that although it appeared Olivo, Summers and Robles had hatched a scheme to take over the city of Vernon and used the Voters as pawns to achieve those ends, all of the Voters had established their legal domicile in Vernon when they registered to vote. The court indicated that the only question that remained was whether fraudulent activity occurred which would justify the cancellation of the Voters registrations, specifically, whether from all of the circumstances it was reasonable to infer that cheap housing, and possibility of jobs or other promises were offered illegally in exchange for their votes in violation of the Elections Code. The court thereafter concluded that there was insufficient evidence to set-aside the registrations and stated its ruling in favor of the Voters.
When the parties requested a statement of decision, the court ordered the Elections Official to prepare the first draft, but indicated that the parties should collaborate on it. The minute order indicated the court would “hold” the statement of decision for 15 days for opposition. Thereafter the Elections Official prepared a draft statement of decision, served it on the Voters and the Registrar and then filed it three days later. The court signed the Elections Official’s Statement of Decision four days after receiving it and prior to Voters filing their objections to it. On October 16, 2006, over the Voters’ and Registrar’s objections, the court filed the version of the statement of decision it had previously signed that had been prepared by the Elections Official. On October 20, 2006, the court entered judgment for the Voters.
The Voters and the Registrar complain to this Court that they had no meaningful opportunity to participate or collaborate on the drafting of the statement of decision and that as a result it is one-sided in favor of the Elections Official. They assert that though it contains accurate legal conclusions the statement of decision also contains many irrelevant factual conclusions. While it appears that the statement of decision reflects only the version of the facts of the Elections Official and that the trial court failed to “hold it” for 15 days prior to “signing it”, the respondents have not provided this court with a complete record of the proceedings from the October 2006 hearing when respondents asserted their objections to the statement. Thus, it is difficult for this court to fairly assess the court’s reasons for adopting the Elections Official’s version. Nonetheless, our assessment of the merits of this appeal is unaffected as we have the benefit of the entire record from the trial to review. We can, irrespective of the recitation of facts found by the statement of decision, determine whether the evidence presented at trial supports the court’s legal conclusions. Under the prevailing substantial evidence standard of review for factual findings, we construe the facts in a manner so as to support the sound legal conclusions and judgment. (See California School Employees Assn. v. King City Union Elementary School Dist. (1981) 116 Cal.App.3d 695, 702.) In any event, even considering the factual findings in the statement of decision, as adopted by the trial court, we would reach the same conclusion on appeal.
The Elections Official timely appeals. The Voters filed a cross-appeal.
In their cross-appeal the Voters challenged a number of rulings and orders, including an order denying their SLAPP motion and an order overruling the demurrer. Voters’ cross-appeal was dismissed by this court several times for failure to observe the rules of court, but ultimately was re-instated. On September 24, 2007, the Elections Official filed a motion to dismiss based on an argument that the cross-appeal was untimely. On October 24, 2007, this court granted the motion in part and thereby dismissed as untimely filed the appeal from the order denying the SLAPP motion.
DISCUSSION
Before this court, the Elections Official asserts the trial court erred in refusing to order the cancellation of the voter registration of the Voters. Specifically, the Elections Official asserts that the court misapprehended the law pertaining to sections 2213 and 349 in finding the Voters were legally domiciled in Vernon when they registered to vote. In addition, the Elections Official asserts that even if they were domiciled in Vernon their registrations were illegal under section 2213 because the Voters were housed in Vernon temporarily pursuant to a fraudulent scheme to take over the City of Vernon by gaining a majority on the city council in the April 2006 municipal election. Prior to reaching the merits of these contentions, we consider two preliminary, threshold matters: first, whether the appeal is moot; and second several arguments presented by the Voters in connection with their cross-appeal from the trial court’s ruling overruling their demurrer.
I. Mootness
In its respondent’s brief the Registrar properly acknowledges that because the April 2006 Vernon municipal election has already occurred and because the Voters were permitted to participate in the election, this matter is technically moot. Nonetheless, the Registrar requests that we retain the case and decide the merits because the matters raised in this appeal have wide reaching implications that could effect future elections.
The courts have developed various doctrines to permit the appellate review of a case in which an issue on appeal is no longer of consequence to the parties and any ruling would have no practical effect on them. One exception to the mootness doctrine applies to those controversies, including those touching on election laws, that are capable of repetition and yet evading review. (See Kagan v. Kearney (1978) 85 Cal.App.3d 1010, 1014 [court applied exception to mootness doctrine to assess the merits of a claim concerning minimum residency requirements to register to vote in a state election].) This is such a case. In our view, this case poses issues concerning voter registration and domicile requirements that are likely to reoccur. Yet, given that a person may register to vote shortly before an election, compared to the slower pace that challenges to voter residency can move through the court system, these issues may evade review for a significant period of time. Consequently, this court exercises its discretion to resolve the underlying issues in this appeal.
II. The Voter’s Cross-Appeal
Among other issues contained in the Voters’ notice of cross-appeal was a challenge to the trial court’s ruling overruling their demurrer.
The Voters did not file an opening brief on the cross-appeal as anticipated by the rules of court. Indeed, the Voters’ briefing is confusing in this respect and violates the standards for appellate briefing set forth in the California Rules of Court. When a cross-appeal is taken the respondent, as cross-appellant, need not file a separate brief on the cross-appeal but may include, in a separate section of his respondent’s brief, the points he desires to raise on his cross-appeal. Here the Voters chose not to file a separate opening brief on their cross-appeal. Instead, they included in the respondent’s brief their arguments regarding their cross-appeal. However, in violation of California Rules of Court, rule 8.204(a), they did not identify the cross-appeal arguments in a separate section of their respondent’s brief labeled as such, but instead the Voters placed those arguments at the beginning of the brief without identifying the points that were part of their response to the Elections Official’s opening brief and which points were part of their cross-appeal. When defective briefs are filed, this court has the option to return the briefs to counsel for correction, order the briefs stricken with leave to file new briefs or to disregard the defects and consider the briefs as if they were properly prepared. (Cal.Rules of Court, rule 8.204(e).) Although these defects are troublesome and complicate our review, we note that the Elections Official had an opportunity to and did in fact provide a response to the cross-appeal in her reply. In view of this and in the interests of efficiency and judicial economy, we choose to disregard the defects and treat the Voters’ brief as if it had been prepared properly. We caution counsel, however, that such neglect of the court rules will not be favorably considered by this court in the future.
In its demurrer to the Elections Official’s cross-complaint, the Voters argued, as they do before this court, that the cross-complaint should have been dismissed because the Elections Official lacked standing to bring an action to cancel voter registrations under section 2213.
Section 2213 provides, in pertinent part: “Any person may proceed by action in the superior court to compel the county elections official to cancel any registration made illegally or which should be canceled by reason of facts that have occurred subsequent to the registration. If the voter whose registration is sought to be canceled is not a party to the action, the court may order him or her to be made a party defendant.” (Elec. Code, § 2213.) The Voters argue that pursuant to the express language of section 2213 only a natural, private individual can proceed under the statute and the Elections Official does not qualify as a “person” because he filed the action in his official capacity representing the electors of Vernon. Given the purpose of the statute, we do not agree.
The term “person” is not defined in this statute. It is also clear that an “Elections Official” is a position that is held by “a person.” (Elec. Code § 320 [“‘Elections official’ means . . . any person who is charged with the duty of conducting an election.”) Thus, the issue is whether an elections official acting in official capacity, as here, qualifies as a person under section 2213. Case law provides no direct or recent guidance in this matter. However, in 1963, the California Attorney General issued an opinion addressing the definition of “person” under a former (and identical) version of section 2213, specifically section 391. (See 41 Ops. Cal. Atty. Gen. 178 (1963).) In the opinion, the Attorney General opined that a district attorney, acting in his official capacity, qualified as a person under the statute and could file an action to cancel certain voter registrations. The analysis in the opinion is persuasive. The Attorney General first acknowledged that in general the term “person” as used in a statute usually has been held to exclude the state actors and political subdivisions, absent express intent to include them. The opinion further noted that this general rule is limited to situations “in which there is an encroachment upon the powers of the governmental agency or official involved. Where there is no impairment of sovereign powers, the reasons for the rule cease to exist and it becomes necessary to ascertain whether the Legislature intended the statute, notwithstanding the general language, to be applicable to governmental bodies.” (See 41 Ops. Cal. Atty. Gen. p. 179.) The Attorney General’s opinion cites other examples where the term “person” had been construed to include government officials acting in their official capacities. The opinion further described the rules of statutory construction in another case, quoting from, People v. Centr-O-Mart (1950) 34 Cal.2d 702, 704:
In People v. Centr-O-Mart, supra, 34 Cal.2d 702, the court determined that a district attorney qualified as a “person” under the Unfair Businesses Practices Act and thus could seek an injunction on behalf of the people of his county.
“Where a statute is not expressly made applicable to government, it is for the courts to determine whether the Legislature intended it to apply to government. In making that determination, it is proper to consider all matters which, under the rule of statutory interpretation, shed light on the legislative intention. Words of a statute must be given such interpretation as will promote rather than defeat the general purpose and policy of the law. The Legislature here has specifically declared that the purpose of the act is to ‘safeguard the public.’ It would appear that the state, acting through its law enforcement officers, is a proper party plaintiff to bring suit for that purpose, and that the Legislature did not intend to exclude it by implication.”
The Attorney General’s opinion interpreting the former section 2213 further determined that the statute did not encroach upon the rights of the state and that its purpose was to insure compliance with the laws concerning the qualifications of voters. The Attorney General concluded that the statute must be interpreted to include public officials because to exclude the state “would be to lose sight of [the state’s] responsibility to take steps to insure compliance with voter qualifications established by the California Constitution,” and that limiting the statute to private persons “might have the effect of defeating the basic purpose of the section, namely, the prevention of unqualified persons from voting and would be contrary to the basic rule of statutory construction to the effect that statutes are to be construed so as to refrain from defeating their legislative objectives.” (See 41 Cal. Atty. Gen. Ops. p. 181.) We agree.
In our view, the “any person” language is merely an express recognition that a private individual may seek the cancellation of voter registrations, but it is not a limitation on the rights of others, including the right of state actors under the statute. (Pierce v. Superior Court (1934) 1 Cal.2d 759, 763 [interpreting a former version of section 2213, the Supreme Court concluded: “[t]he fact that a remedy is given to a private individual to institute such an action could not operate to deny the power of the attorney-general to bring a similar action on behalf of the state.”].) In fact the statute appears to expand a right to challenge voter registrations, which would otherwise only belong to the state. (See id. at p. 769, Thompson, J., dissenting.)
In Pierce, the California Supreme Court examined whether the California Attorney General could bring an action in equity to cancel voter registrations. In concluding the attorney general could so act if certain safeguards were met, the Pierce court rejected the petitioner’s argument that voter registrations could only be challenged pursuant to the former section 2213 by private individuals. (Pierce v. Superior Court, supra, 1 Cal.2d at p. 762.)
Furthermore, because local election officials are charged with organizing and administering fair and open elections in their precincts such officials have as much interest as any private elector in determining that only legally registered electors vote in elections; and such officials may have more resources to pursue actions under section 2213.
Finally, Legislative history of this code section supports our construction of “person” to include more than a private individual. The original iteration of section 2213 was enacted in 1872 in Political Code section 1109. In 1872, as today, the statute indicated that an action to seek the cancellation of voter registration could be brought by “any person.” The Comment of the California Code Commission purposing the law noted that “[t]he section above gives to any person, at any time, the right to purge the Great Register. Committees of political parties may always examine the register, and may take steps, under the provisions of this section, to purge it of names not legally thereon.” (Political Code section 1109 (1872); italics added.) We give substantial weight to this comment. (See Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1144 [“In determining the intent and understanding of the 1872 Legislature, we give substantial weight to the comments of the California Code Commission which proposed the 1872 Civil Code”]; Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 817 [“true meaning and intent” of Civil Code section “cannot proceed without reference to the Code Commissioners’ Note”].) Given that the Comment expressly recognized the rights of political party committees to act on behalf of their members to seek a remedy under the statute, it stands to reason that those same rights of action would extend to government officials acting on behalf of their constituents.
In view of the foregoing we conclude that the Elections Official, acting in his or her official capacity, has standing to bring an action under section 2213 in the superior court to compel the county elections official to cancel any registration made illegally. The trial court did not err in overruling the Voters’ demurrer to the Elections Official’s cross-complaint.
We observe that the Voters asserted two additional claims in their demurrer to the cross-complaint which require a brief mention. Specifically, they claimed that: (1) the trial court acted in excess of its jurisdiction when it permitted the Elections Official to use public funds to remove the Voters from the voter rolls for the private benefit of the incumbent council members; and (2) the filing of the cross-complaint violated conflict of interest provisions in the Government Code.
III. Elections Official’s Appeal
On appeal the Elections Official challenges the trial court’s failure to cancel the Voters registrations under section 2213. Our analysis of this matter begins with a review of the basic principles of California election law.
An “elector” is “any person who is a United States citizen 18 years of age or older and a resident of an election precinct at least 15 days prior to an election.” (Elec. Code, § 321.) A “registered voter” is an elector who has complied with the registration requirements set forth in the Elections Code and is therefore allowed to “vote at any election held within the territory within which he or she resides and the election is held.” (Elec. Code, § 2000, subd. (a); see Collier v. Mensel (1985) 176 Cal.App.3d 24, 30; Kagan v. Kearney (1978) 85 Cal.App.3d 1010, 1014-1015; Cothran v. Town Council (1962) 209 Cal.App.2d 647, 661.) In this case the only issue concerning the Voters’ qualifications pertained to whether they legally resided in Vernon.
“Residence” for purpose of being an “elector” means ‘domicile.’” (Elec. Code, § 349; DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260, 1263, fn. 1.) Under section 349, subdivision (b), “[t]he 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.) Under the Election Code “domicile” for voting purposes may include “[r]esidence in a trailer or vehicle or at any public camp or camping ground” or even a public park. (Elec. Code, § 2027; Collier v. Mensel, supra, 176 Cal.App.3d at p. 31.) It is the place of physical presence coupled with the intention to make that place one’s permanent home. (Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1113-1114.) Domicile is the “fixed home of a party as understood by himself and his neighbors and friends.” (Burt v. Scarborough (1961) 56 Cal.2d 817, 820.)
While a person may, at any given time, have more than one physical place of abode or residence, he or she may have only one domicile; and a domicile, once established, is presumed to continue until a new one has been acquired. (Walters v. Weed (1988) 45 Cal.3d 1, 7-8.) Further, the acquisition of a new domicile is generally understood to require an actual change of residence accompanied by the intention to remain either permanently or for an indefinite time in the new locality; the burden of proving such a change rests with the party asserting it. (DeMiglio v. Mashore, supra, 4 Cal.App.4th at p. 1268; Hartman v. Kenyon (1991) 227 Cal.App.3d 413, 422 [the burden to prove that a person voted in a precinct where they were not domiciled is on the challenger].) Indeed, “[t]he mere intention to acquire a new domicile, without the fact of removal avails nothing, neither does the fact of removal without the intention.” (Elec. Code, § 2024.) In addition, “California law gives great weight to the voter’s representation of where his domicile is” and that “[a]ny doubt in the interpretation of the law shall be resolved in favor of the challenged voter.” (Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 578.)
Because section 2213 does not specify any particular standard of proof, the burden of proof at trial upon a party challenging election law residency requirements appears to be proof by a preponderance of the evidence. (See Pierce v. Harrold (1982) 138 Cal.App.3d 415, 427-428 [finding that the traditional civil standard of proof by preponderance of the evidence applied to an election contest wherein it was claimed that a candidate for superior court had falsely stated her residence in her declaration of candidacy].)
Under section 2201, a county elections official shall cancel the registration of a voter if, among other circumstances not relevant in this case, the registrar is ordered to do so by a court. (See Elec. Code, § 2201, subd. (d).) As described elsewhere herein, under section 2213 such an order may be sought in the superior court to compel the registrar to cancel any registration made illegally or which should be canceled by reason of facts that have occurred subsequent to the registration. (Elec. Code, § 2213.)
Section 2201 provides in full: “[t]he county elections official shall cancel the registration in the following cases:
Here the Elections Official asserts that the Voters’ registration should be cancelled under section 2213 because: (1) the Voters were not legally domiciled in Vernon when they registered to vote in the April 2006 election; or (2) in the alternative, that the registrations were made pursuant to an illegal and fraudulent scheme to take over the city. We address each of these contentions in turn.
A. The Voters’ Domicile
The Elections Official stipulated that the Voters actually inhabited the 46th Street Property when they registered to vote. The Elections Official maintains, however, the Voters were not legally domiciled in Vernon, asserting the 46th Street Property did not constitute a “fixed habitation” under section 349 because the Voters presence at the property was illegal. The Elections Official points out the Voters did not have the owner’s consent to reside at the property and because the Voters were effectively trespassing on the property their habitation was necessarily temporary and could not therefore be “fixed.” The Elections Official also highlights that the occupation of the property violated municipal housing codes.
The Elections Official’s characterization of this situation as one concerning whether Voters meet the requirement of a “fixed habitation” under section 349 is inapt. Contrary to what the Elections Official suggests, the fixed habitation element does not concern whether such a place can legally serve as a dwelling nor whether a person may legally reside there. (Collier v. Mensel, supra, 176 Cal.App.3d at p. 31 [finding that a public park could serve as a fixed habitation even though it could not legally be designated as a place for camping].) Nor do we agree with the Elections Official’s reading of Collier—that the Collier court determined the public park was a fixed habitation simply because it was a common gathering place for homeless persons and because the police did not enforce the law and tolerated their presence. Instead, the “fixed habitation” element of the domicile requirement concerns whether the place of habitation can actually function and serve as a dwelling place. (See Collier v. Mensel, supra, 176 Cal.App.3d at p. 31 [examining the definition of fixed habitation in section 349 and concluding that a fixed habitation is a “physical area where a person can sleep and otherwise use as a dwelling place”].) Fixed habitations may include camp grounds, city parks, trailers and motor vehicles. (Ibid.; Elec. Code, § 2027.) Under this standard the 46th Street Property qualifies as a fixed habitation place.
Here the issue concerns not whether the 46th Street Property constitutes a “fixed habitation” but instead whether the Voters had rational intent to reside at the property under section 349. The Elections Official concedes that the Voters had the subjective intent to make Vernon their permanent home, but maintains that based on the illegality of their habitation their intent was not rational. Collier is instructive on this point. In Collier, a group of indigent homeless people sought a writ of mandamus from the trial court to compel the Santa Barbara County clerk-recorder to register them to vote. The petitioners had listed as their domicile a city park in which camping and sleeping were prohibited. In reversing the trial court’s order denying the petition, Division Six of this District, analyzed the intent issue as follows:
“It is important to point out that, pursuant to city ordinance, the city park appellants designate as their residence is legally forbidden for use as a residence. Since appellants have ‘no right’ to use the park for a habitation, do they have the required intent to remain there? Yes. Appellants’ intent to remain in the park is legally independent of any intent to violate the ordinance. We do not hold that respondent cannot enforce its ordinance making it illegal to live in a public park. We do hold that so long as petitioners actually reside there, they may register to vote in that precinct.” (Id. at p. 32.)
Thus, under Collier a voter’s intent to reside at a particular place is objectively rational so long as they intend to remain and they are actually present at the dwelling place.
In view of Collier and Election Code statutes pertaining domicile (i.e., §§ 349 and 2424) we interpret domicile to require a fixed habitation and an subjective intent to remain which is objectively reasonable based, at a minimum, on the voter’s actual presence at the domicile at the relevant time of voter registration. The Voters in this case intended to remain at the 46th Street Property and actually lived at the property when they registered to vote. The legality of their presence is a separate matter that does not undermine their intent to live there.
In addition, unlike the voters in Collier, the evidence presented in the trial here showed the Voters believed in good faith that they lived at the 46th Street Property legally with the consent of the owner—they had each signed the lease to rent the property and had no reason to believe that they would be evicted on January 26, 2006. Likewise, there is no evidence that the Voters sought to hide their presence at the 46th Street Property while they lived there between January 9, 2006 and January 26, 2006. In addition, though they did not pay rent for the first month, they all believed that their work on the property was in exchange for the first month’s rent, and all of them testified that they intended to remain in Vernon and live at the property on a permanent basis.
Consequently, in our view, when they registered to vote between January 9 and January 13, 2006, the Voters’ intent to claim the 46th Street Property as their domicile was as objectively rational as the intent of those voters in Collier who lived illegally in the public park in Santa Barbara. The Voters here satisfied the domicile requirements of section 349 and their registrations were not illegal under section 2213 on that basis, irrespective of any housing code violations or the fact that they lived at the property without the consent of the property owner.
Our analysis, however, does not end with Collier. Our case raises the additional issue not addressed in Collier, namely, what effect does a post-voter registration eviction or removal from the fixed habitation have upon a voter’s domicile? In this case the Voters were evicted from the 46th Street Property not long after they registered to vote. The effect of the eviction on their domicile issue is answered in Walters v. Weed (1988) 45 Cal.3d 1, 7-9. In Walters electors challenged the results of a city council election in Santa Cruz. The plaintiffs argued that a number of UC Santa Cruz students who voted in the on-campus precincts were not actually domiciled in those precincts and thus cast illegal votes. (Id. at p. 4.) Evidence presented during the trial demonstrated that almost 200 students who had previously resided on campus and registered to vote using their campus addresses no longer resided in the on-campus precincts in which they voted and were either unable or unwilling to return to live on campus. The evidence also showed that many of those students had yet to acquire a new domicile prior to the election. (Id. at p. 6.) The California Supreme Court, based on the principle that residence can only be changed by the union of act and intent and the notion that everyone has in law a domicile (i.e., “everybody belongs somewhere”), determined that even though the students could not return to on-campus housing they retained their on-campus domicile until they had established a new one. (Id. at p. 14 [“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”].)
In sum, under Walters and Collier to prevail on the claim that the Voters lacked a legal domicile in Vernon warranting the cancellation of their voter registrations, the Elections Official needed to demonstrate that the Voters’ irrationally intended to reside in Vernon because they did not actually ever reside at the 46th Street Property or intended to remain in Vernon only on a temporary basis to begin with, or that they established a new domicile outside the city after they had been evicted from the 46th Street Property. The Elections Official failed to satisfy its burden of proof on these matters.
The evidence presented at trial showed that the Voters did not willingly abandon the 46th Street Property, that they all remained in Vernon living in motels, tents, trailers and cars after they had been evicted from the 46th Street Property and they would have returned to the property if permitted to do so. The Elections Official did not demonstrate that any of them had acquired a new domicile outside of Vernon prior to the April 2006 election.
Accordingly, the trial court did not err in concluding that the Voters were legally domiciled in Vernon when they registered to vote.
B. The “Scheme” to Take Over the City
Before this court the Elections Official asserts that even if the Voters were legally domiciled in Vernon when they registered to vote in the April 2006 election, their registrations should nonetheless be cancelled because they were registered pursuant to a fraudulent scheme to take over the city orchestrated by Summers, Olivo and Robles. The Elections Official maintains that the Voters were “pawns” who were clandestinely placed at the property in a situation that Summers, Olivo and Robles knew could only be temporary.
The Elections Official’s “fraudulent scheme” argument is flawed. The Elections Official has failed to present any recognized legal basis or relevant authority to support this fraudulent scheme theory. The statutory grounds upon which a voter’s registration can be cancelled are limited to those situations provided in section 2201 and a purported fraudulent scheme to take over a city is not listed among those statutory grounds. Likewise section 2213 does not include any mention of “fraud” as a basis to seek a court order directing cancellation of a voter’s registration. Cancellation of voter registration under section 2213 requires more than a showing that the Voters or Summers, Olivo and Robles engaged in acts that may have been dishonest, misleading, unethical, or amounted to a breach of contract. Section 2213 requires a showing of “illegality”—that they violated the law, and more precisely election laws.
Cancellation of voter registration can also be sought under section 2213 based on facts that have occurred subsequent to the registration which would show that the registration should be cancelled. Read in the context of this statute such subsequent facts would be those warranting cancellation either because they disclosed subsequent illegality or would otherwise justify cancellation under section 2201. We observe that this aspect of section 2213 is not directly at issue in this case as the Elections Official’s claims of fraud focus primarily on events which occurred prior to the Voters’ registration.
The Election Code contains numerous detailed provisions proscribing illegal election activity in sections 18000 through 18578. The ones implicated in this case which concern voter registration and the corruption of the voting process criminalize such conduct as: (1) causing or procuring the voter registration of (or allowing ones self to be registered to vote) knowing that he or she or that the person registered is not entitled to register (§ 18100); (2) offering or promising employment, gifts, consideration, or housing with the intent to secure the vote of that person or to induce them to vote for a particular person or measure (§§ 18520, 18521, 18524) or (3) committing fraud in connection with any vote cast or to be cast. (§ 18500.) The Elections Official did not expressly rely on any of these sections in an effort to prove its fraudulent scheme argument below, and in any event the evidence presented at trial did not prove them.
In the statement of decision, it appears that the Elections Official expressed a third theory for cancellation of voter registrations in addition to the fraudulent scheme argument, namely, that the Voters had all violated sections 18100 and 18521. Notably, on appeal the Elections Official makes no claim that the court erred in rejecting this third theory.
As to section 18100, there was no evidence presented at trial that the Voters had knowledge that they were not entitled to register to vote in Vernon. As discussed elsewhere, they all testified that they believed they were entitled to register to vote using the 46th Street Property address. Concomitantly, the Elections Official did not prove that Summers, Olivo or Robles willfully caused or procured the registrations of the Voters. Concerning, section 18500, we agree with the Registrar that this section requires a showing of specific intent to commit fraud. (See 81 Ops. Cal. Atty. Gen. 321 (1998) [finding that prosecution for fraudulent voting requires proof of specific intent].) There was no evidence presented that the Voters registered to vote or cast their ballots knowing that they were either not entitled to vote in the city, or that they intended to move to the city on a temporary basis solely to cast votes in the election or was there evidence that the Voters knew they were domiciled elsewhere. In addition, notwithstanding any contracts or lease agreements that Summers, Olivo, Robles allegedly breached (or interfered with), and notwithstanding any misinformation or misunderstandings the trio purportedly perpetuated or disseminated, the Elections Official simply did not demonstrate that they willfully committed fraud in connection with the voting process.
Furthermore, even assuming that Summers, Olivo and Robles engaged in a concerted effort which brought the Voters to the city, the Elections Official did not prove that Summers, Olivo or Robles promised the Voters housing, employment or any other consideration to get them to register to vote or in exchange for their votes. All of the Voters denied that Summers, Olivo or Robles directly asked them or otherwise encouraged them to register to vote. With the exception of Huff the Voters testified that they moved to Vernon for various personal or employment reasons unrelated to the election or the political process. Given the circumstances from which each Voter had come, the move to the 46th Street Property was not an objectively unreasonable decision.
Finally, there was no direct or substantial evidence presented that Summers, Olivo, and Robles intended to import voters into Vernon on a temporary basis. The Elections Official has not shown that this case represents the “precinct shopping” situation described in Walters in which people abandon their domiciles to vote in precincts of their current temporary residences and thereby “create a system in which people could vote anywhere they chose, regardless of their ties to the community.” (Walters v. Weed, supra, 45 Cal.3d p. 12.) It appears based on the evidence presented at trial that there was an effort underway to move additional residents (and potential voters) into the city of Vernon permanently and have them participate in the local political process. While this was a circumstance that caused great concern among the long time residents and city leaders to say the least, such an effort is not per se illegal or fraudulent. (See Jolicoeur v. Mihaly, supra, 5 Cal.3d at pp. 572-573[in concluding that unmarried, emancipated minors (otherwise eligible to vote) had the right to register from the domicile of their choice, the court observed, “[f]ears of the way minors may vote or of their impermanency in the community may not be used to justify special presumptions -- conclusive or otherwise -- that they are not bona fide residents of the community in which they live].”) Absent the requisite showing of illegality in the registration or voting process, the community’s fear that new residents to Vernon will disrupt the way of life or the balance of power that has existed in the city for generations, is not enough to disenfranchise these Voters. Indeed, both the state and federal courts have long recognized the freedom and constitutional province of an individual to participate in political activity as a fundamental principle of a democratic society and as among the most valuable rights of citizenship.
We caution that nothing in this opinion should be read to immunize (or viewed as an endorsement of) the actions allegedly undertaken by Summers, Olivo and Robles in this case. Instead, our conclusion results because the Elections Official simply failed to prove what he set out to demonstrate, namely, that voters were imported into the City of Vernon on a temporary basis solely to participate in the April 2006 municipal election pursuant to illegal and fraudulent means in violation of the Election Code.
In view of all of the foregoing, we conclude the trial court properly entered judgment for the Voters on the Elections Official’s Cross-Complaint.
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
We concur: PERLUSS, P.J. JACKSON, J.
Summers was a disbarred attorney who had also suffered prior felony convictions for forgery and embezzlement and had been an attorney for Robles when he was the Treasurer in South Gate. Olivo had served as the City Attorney for Vernon, but was fired in 2004. In the Spring of 2006, Olivo had become City Attorney of Commerce.
Also, during March 2006, Summers and Olivo entered negotiations with another Vernon property owner (and a church) to open a 60-bed men’s home in Vernon (the “Santa Fe Property”). The deal fell through when the church backed out.
As to the first argument, the Voters rely on case law that held that the trial court erred (and acted in excess of its jurisdiction) when permitted the district attorney to maintain an action to intervene in a labor dispute. (Safer v. Superior Court (1975) 15 Cal.3d 230, 241.) In Safer the Supreme Court concluded that the district attorney lacked both standing and legal authority to use public resources to intervene in what was essentially a private civil matter. Safer has no relevance to the case before us. As we have concluded, the Elections Official had standing and authority to act under section 2213, and the matter at issue—the legality of voter registration is not a private matter, but instead concerns issues of great public import concerning the qualifications of electors to participate in the political process.
Concerning the second argument in the demurrer, relating to the allegations of conflicts of interest and Government code violations by various parties and individuals interested in the case, we observe that whether the Elections Official or others violated the conflict of interest provisions in the Government Code in bringing this action is simply not material to the underlying matters alleged in the cross-complaint nor to the issue of whether the cross-complaint is legally infirm. Even assuming that a conflict of interest was shown, such a conclusion would not inform the merits of the action or necessarily warrant its dismissal.
“(a) At the signed, written request of the person registered.
“(b) When the mental incompetency of the person registered is legally established as provided in Sections 2208, 2209, 2210, and 2211.
“(c) Upon proof that the person is presently imprisoned or on parole for conviction of a felony.
“(d) Upon the production of a certified copy of a judgment directing the cancellation to be made.
“(e) Upon the death of the person registered.
“(f) Pursuant to Article 2 (commencing with Section 2220).
“(g) Upon official notification that the voter is registered to vote in another county or state.
“(h) Upon proof that the person is otherwise ineligible to vote.” (Elec. Code, § 2201.)