BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
1
6
7
AB 1676 (Fuentes) 6
As Amended August 2, 2010
Hearing date: August 12, 2010
Government Code (URGENCY)
MK:mc
ELECTED OFFICIALS: RESIDENCY REQUIREMENTS
HISTORY
Source: Author
Prior Legislation: AB 892 (Dymally) - 2003, failed Assm. E., R.
& C.A.
Support: California Common Cause; American Federation of State,
County and Municipal Employees, AFL-CIO
Opposition:None known
Assembly Floor Vote: Ayes 72 - Noes 0
KEY ISSUE
SHOULD IT BE A MISDEMEANOR FOR A NONJUDICIAL ELECTED OFFICIAL OF ANY
COUNTY, CITY, OR SCHOOL DISTRICT TO FAIL TO CONTINUE HIS OR HER
DOMICILE WITHIN THE DISTRICT IN WHICH HE OR SHE WAS ELECTED?
PURPOSE
(More)
AB 1676 (Fuentes)
PageB
The purpose of this bill is to create civil and criminal
penalties for failing to continue one's domicile within the
district for which one was elected for a county, city or school
district office.
Existing law provides that the domicile of a Member of the
Legislature or a Representative in the
Congress of the United States shall be conclusively presumed to
be at the residence address indicated on that person's currently
filed affidavit of registration. (Elections Code 2026.)
Existing law requires a person to be a registered voter and
otherwise qualified to vote for an office at the time that
nomination papers are issued in order to be eligible to be
elected to that office, unless otherwise specifically provided.
(Elections Code 201.)
Existing law provides that a local office for which local
residence is required by law becomes vacant if the official who
holds that office ceases to be an inhabitant of the district,
county, or city for which the officer was chosen or appointed.
(Government Code 1770.)
Existing law provides that a person is not eligible to hold
office as councilmember, city clerk, or city treasurer unless he
or she is at the time of assuming the office an elector of the
city, and was a registered voter of the city at the time
nomination papers are issued to the candidate as provided for in
Section 10227 of the Elections Code. 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. (Government Code
36502.)
Existing law requires county supervisors and city
councilmembers, where they are elected by district, to reside in
the district from which they were elected during their
incumbency. (See Government Code 25041 and 34882.)
(More)
AB 1676 (Fuentes)
PageC
Existing law requires a member of a county board of education,
in any county where board members are elected by trustee area,
to be an elector of the trustee area during his or her term of
office. (Education Code 1000.)
Existing law permits a county charter or a city charter to
provide for the method of election of local elected officials
and the procedures for removal of local elected officials.
(Article XI, Sections 4 and 5 of the California Constitution.)
Existing law provides that 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. (Elections Code 349(b).)
This bill would make it a crime for a person elected to a
nonjudicial office for a county, city, or school district, to
move outside the jurisdiction that he or she represents during
his or her term of office. This bill does not apply to special
districts. Specifically, this bill:
a)Requires a person who is elected to a nonjudicial office for a
county, city, or school district to continue to maintain his
or her place of domicile within the jurisdiction in which
voters are qualified to vote for the office during his or her
term of office.
b)Provides that a person does not violate this provision if,
after being elected for a term of office, the boundaries of
the jurisdiction in which voters are qualified to vote for the
office are changed during that term of office.
c)Provides that a person who violates the provisions of this
bill shall immediately forfeit his or her office and is
disqualified from holding any state or local public office for
a period of four years. Provides that this penalty shall
apply to all persons holding a nonjudicial office for a
(More)
AB 1676 (Fuentes)
PageD
county, city, or school district at the time of the effective
date of this bill.
d)Provides that any person serving a term of a nonjudicial
office for a county, city, or school district commencing on or
after November 2, 2010, who violates the provisions of this
bill, shall be subject to a civil penalty not to exceed $1,000
or by imprisonment in a county jail not exceeding six months,
a fine not exceeding $1,000, or by both the fine and
imprisonment.
e)Permits an action to enforce the provisions of this bill for a
violation to be brought by the Attorney General (AG), the
district attorney or county counsel of a county for a
violation involving an office whose territory is located
wholly or partially within that county, or the city attorney
of a city for an office whose territory is located wholly or
partially within that city.
f)Defines "domicile" as that place in which a person's
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.
g)Finds and declares that Members of the Legislature should
reside in the districts that they are elected to represent in
order to ensure that their constituents are adequately and
effectively represented. Calls on each house of the
Legislature to review its rules relative to the qualifications
to hold office in the Legislature and to amend those rules as
appropriate.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006, plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
(More)
AB 1676 (Fuentes)
PageE
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006, Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
(More)
AB 1676 (Fuentes)
PageF
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
---------------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
(More)
AB 1676 (Fuentes)
PageG
According to the author:
Existing law requires that a person running for local
office be domiciled in the district that they aspire to
represent for a proscribed period of time in order to be
qualified. The law is unclear as to whether they must
continue to be domiciled in the district after they are
elected. This lack of clarity is problematic for a
number of reasons. First, the people of a district have
a right to be represented by someone who lives in their
district and understands the unique needs and desires of
the constituents. Further, most constituents presume
that they are being represented by someone who lives in
their district, and this belief is logical given the
requirement of residency in the district to run for the
seat. Finally, the public good is best advanced when
representatives are in touch with their constituents.
To allow elected officials to live in areas potentially
far removed from the district they were elected to
represent frustrates the goals of representative
democracy.
2. Residency Requirements
Existing state law establishes a variety of residency
requirements for holding elective state or local office, which
vary depending on the office sought or held. For most elective
state and local offices, residency requirements apply at the
time a person is running for office, either at the time a
candidate takes out nomination papers, or for some specified
period of time before the election. In most cases, existing law
also explicitly requires elected officials to maintain their
residency in a district or jurisdiction once in office.
For instance, existing state law provides that when members are
elected by district, rather than at-large, county supervisors
(Government Code Section 25041), city councilmembers (Government
Code Section 34882), and members of a county board of education
(Education Code Section 1000) must live in the district or
trustee area that they represent. In cases where members are
(More)
AB 1676 (Fuentes)
PageH
elected at-large, state law typically requires elected officials
to live within the jurisdiction which they represent.
Existing law further provides that an officeholder loses his or
her office if he or she moves outside of the jurisdictions in
which he or she was elected.
This bill would provide that a person must maintain his or her
domicile within the jurisdiction during his or her term of
office.
3. New Misdemeanor
Under existing law, an office is considered vacant if the
officeholder ceases to have his or her residence in the
jurisdiction. Furthermore, under existing law, if a person lies
on their nomination papers under penalty of perjury regarding
their domicile, he or she can be charged with a felony.
This bill would create a new civil penalty and a new 6-month
misdemeanor for failing to maintain one's domicile within the
jurisdiction during the term of office. It is not clear why
this new crime is necessary. Under existing law, a person will
lose his or her office if he or she moves out of the district.
Is this really an appropriate offense for a criminal penalty?
As evidenced by the recent indictment of Los Angeles City
Councilman Richard Alaron, if a person has gone beyond the act
of just moving and has committed perjury or fraud, he or she can
be criminally charged under existing statutes.
While the author's statement states that it is unclear whether a
person must remain "domiciled" in the jurisdiction in which he
or she was elected, it is very clear that if a person changes
his or her residence to outside the district, his or her office
is considered vacant. If there is an argument that this
provision in Government Code Section 1770 is not clear enough,
shouldn't that section or another be amended just to clarify its
(More)
AB 1676 (Fuentes)
PageI
intent?
If a person moves, under existing law their position is
considered vacant. If a person intentionally deceives the
electorate by pretending to live somewhere they don't, they may
have committed fraud. Who is this bill intended to apply to
that is not already covered by existing law?
IS THIS THE TYPE OF CONDUCT THAT SHOULD BE CRIMINALIZED?
SINCE EXISTING LAW ALREADY SAYS AN OFFICE IS VACANT IF THE
OFFICEHOLDER MOVES OUT OF THE DISTRICT, WHAT IS THE NEED FOR
THIS NEW PROVISION?
4. Disqualification for Four Years
This bill also provides that if a person violates this
provision, he or she immediately forfeits the office and is
disqualified from holding any state or local public office for a
period of four years.
5. Definition of Domicile
This bill adopts the definition of domicile from Elections Code
Section 349(b) which provides:
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.
6. Moving for Any Reason?
(More)
This bill provides that a person "shall continue to maintain his
or her domicile within the jurisdiction in which voters are
qualified to vote for the office during his or her term of
office." Penalties apply to those who don't continue to
maintain his or her domicile as required. What if a person
moves out of the jurisdiction and in doing so knows and is
willing to forfeit his or her office? If he or she does not
resign before the move, is he or she subject to the penalties?
What if with a short time left in office, a person moves into a
neighboring district to care for his or her sick relative? If
they keep their house but do not believe they will be living in
the house again during the term of office, is he or she subject
to the penalties? What if a house is destroyed by fire or flood
and the only house the officeholder can get to accommodate his
or her family is right outside the district, if they will not
return to the destroyed property until the end of the term has
the officeholder violated this provision?
SHOULD THE REASON A PERSON MOVED OUT OF THE DISTRICT BE
CONSIDERED?
IF A CRIME IS BEING CREATED, SHOULD SOME INTENT TO DECEIVE BE
REQUIRED?
DOES THIS APPLY TO ANY PERSON WHO MOVES OUT OF THE DISTRICT,
EVEN IF THE OFFICEHOLDER INTENDS TO FORFEIT HIS OR HER OFFICE?
7. When Will This Take Effect?
This bill provides that subsection (a), the prohibition on
changing domiciles, and subsection (b), regarding forfeiture of
office and future prohibition from holding office, take effect
when the statute takes effect. Since this is currently an
urgency measure that will take effect immediately upon its being
signed, it will apply to current officeholders. The bill
further provides that the civil and criminal penalties apply
only "to persons holding their offices under terms of office to
commence on or after November 2, 2010." Thus, the civil and
criminal penalties will apply only to those newly elected in the
(More)
AB 1676 (Fuentes)
PageK
November election. While criminal penalties should be
prospective, the language in this section is confusing. Now
that there is an urgency clause in the bill, should the bill
instead be silent on this issue and just take effect when
signed?
8. Legislative Findings and Declarations
This bill provides:
The Legislature hereby finds and declares that, in order
to ensure that Members of the Legislature adequately and
effectively represent their constituents, those elected
to the Legislature should be domiciled in the districts
that they are elected to represent. As each house of
the Legislature judges its rules relative to the
qualifications to hold office pursuant to Section 5 of
Article IV of the California Constitution, each house of
the Legislature should review its rules relative to
qualifications to hold office and should amend those
rules as appropriate.
Why does this need to be in a bill? If the Legislature finds
and declares it and thus thinks it is necessary to review its
rules, then the Legislature can just review them without a
legislative declaration saying that they should.
SHOULD THE FINDINGS AND DECLARATIONS IN SECTION 3 OF THE BILL BE
DELETED?
***************