“ZOT!” Steve Young Files His Argument Against Mimi Walters — and It’s Devastating

I’ve been provided with a copy of the moving papers filed last Friday by SD-37 candidate Steve Young against Marian K. “Mimi” Walters, in Case No. 34-2012-8000 1270, Young v. Walters, a hearing for which will be held in Santa Ana Sacramento on Oct. 19.  They’re very powerful.  I’m going to try to walk you through them, since it’s Sunday night and you probably have some free time to do some light reading.

In case it ever comes up, Mimi Walters’s stunt from two years ago of drinking tequila shots with Meg Whitman and Carly Fiorina and a “Latino Outreach Event” also does not make her Latino — or mean that she’s not an immigrant-basher.

The first document is something called a Memorandum of Points and Authorities.  This is the argument you make, along with citations, when filing a motion (such as a motion to keep Schemin’ Mimi off of the ballot, which I’d suppose would apply ab initio, that is “from the beginning,” to negate her filing in the first place given that she would have perjured herself in swearing that she lived in the district.  (Contrast that with Joe Moreno in AD-69, who swore that he was eligible to run for that seat in good faith.)  The filing is indented; my comments aren’t, but are in italics.

1. UNLESS SENATOR WALTERS PROVES SHE RESIDES IN THE 37TH DISTRICT, SHE IS DISQUALIFIED FROM RUNNING FOR THAT OFFICE.

Elections Code § 201 entitled: “Eligibility for elective or appointive office” provides,

“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 persons appointment.” [Elections Code § 201 (emphasis added).]

Votes cast by nonresidents are properly rejected as illegal because constitutional qualifications of electors include residence in election precinct and only qualified electors are entitled to exercise voting franchise. [Garrison v. Rourke (1948) 32 Cal.2d 430] A voter’s legal residence establishes the place where he will vote at ordinary elections. [39 Op.Atty.Gen. 211, 4-6-62.] Failure to actual reside in the proper area means the voter is not qualified to cast a ballot. [4 Op.Atty.Gen. 214, 9-25-44] By extension of the meaning of Elections Code § 201, a voter disqualified by lack of residence would also be disqualified from running for the state senate.

Therefore, in order to be eligible to run for the State Senate seat, Senator Walters must qualify by actually residing in the 37th district.

One thing I like about this is that it clarifie what the problem is here: Walters can’t run for office in SD-37 because she can’t vote there.  You may want to argue that someone ought to be able to run to represent whatever area they please — and if the voters don’t like it they can simply refuse to elect them.  This is, in fact, how it works for Congress, where one need only be a resident of the state to represent any given district.  But that’s not how it works for our state legislature.  Ask yourself this: does Mimi Walters have an interest in voting for the other people on the ballot in and around her Laguna Niguel mansion — or does she have an interest in voting for others on the ballot in Irvine, where she may occasionally set foot but where she has no interest as homeowner, renter, or even transient?  If it seems weird for her to be able to vote for Stephen Choi over Larry Agran for Mayor of a city where she doesn’t live (which is not something I recommend even residents do) instead of whether Paul Glaab belongs on Laguna Niguel’s City Council, that’s due to the intuition that she does not really reside in Irvine.  Of course, a legal analysis won’t stop there.

2. SENATOR WALTERS BEARS THE BURDEN OF PROOF ONCE PETITIONERS ESTABLISH THAT SHE WAS PREVIOUSLY DOMICILED IN A DIFFERENT DISTRICT.

Petitioners have the initial burden of showing that Walters had a pre-existing non-qualifying domicile. [DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260] To do so, Petitioners have shown that Walters was registered to vote at 3 Inspiration, Laguna Niguel, California, which is outside the 37th District, and that she was the state senator from that area. Petitioners submit that this is sufficient proof as well as her voter registration form that shows her prior address as outside the 37th district.

Once Petitioners make that showing, Senator Walters bears the burden of proving, by way of defense, that she acquired a new domicile within the 37th Senate District.  [DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260]  The candidate bears the burden to prove that she was domiciled in the district before the election, rather than requiring contestants to prove she was not. [ibid]  The law aids Petitoiner’s cause by presuming that once Mimi Walters acquired a domicile in the 33 District, that domicile continues until she proves she actually acquired a new domicile. [ibid]

Some of you may think that it’s unfair to put the burden on Walters prove that she lives in the 37th district.  And, in fact, that’s not the initial burden in the case.  She only has to show that she lives in the district if Young can prove that she was previously domiciled — a word that means “resided,” but also a little but more — outside of the district.  If Young can’t meet that burden, he loses.  Once Young meets that burden, then the burden shifts to Walters to prove her move — and if she can’t bear that burden, then she loses.

 3. SENATOR WALTERS’ RENTAL OF A 570 SQUARE FOOT APARTMENT IS INSUFFICIENT PROOF BECAUSE [SHE] CONTINUED TO RESIDE IN THE 14,000 SQUARE FOOT RESIDENCE WHERE SENATOR WALTERS WAS PREVIOUSLY REGISTERED TO VOTE.

Elections Code § 349 defines “Residence” as,

“(a) “Residence” for voting purposes means a person’s domicile.

 (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 of returning.  At a given time, a person may have only one domicile.

(c) The residence of a person 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 of remaining. At a given time, a person may have more than one residence.” [Elections Code § 349 (emphasis added).]

Young added the boldface — and I put the key sentence in bright orange.  One’s domicile is one’s residence, but one can have one or many residences that are not one’s domicile.  Sure, Walters can claim that she resides in Irvine.  But unless it’s intended as her permanent residence above and beyond any other residence that she may have, it’s not her domicile.  And it’s  your domicile that determines where you can vote — and thus where you can run for office.

Elections Code § 2021 deals with temporary moves like Mimi Walters has made:

“(a) A person who leaves his or her home to go into another. . . precinct in this state for temporary purposes merely, with the intention of returning, does not lose his or her domicile.

(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.” [Electoins Code § 2021]

By all indications, Mimi Walters has not permenantly relocated to the 570 square foot apartment, and with a “wink – wink, nod – nod” will begin sleeping in her 14,000 square foot house as soon as she has sewn up the November 2012 election victory. That is where her husband and children live (according to the registrar of voters), 6 beds will not fit into her 570 squre foot apartment, and there is no ocean view like her 14,000 square foot house has.

Further, Senator Walters’ family has not made the move, despite the statements on her official State Senate Website that Senator Walters, her husband and their 4 children now live in Irvine [in a 570 square foot apartment]. Senator Walters family members continue to be registered to vote at the Laguna Niguel residence. There is no furniture in the 570 square foot apartment. There are no indications of any one living at the apartment.

Sometimes, when reading a legal filing, one may think to oneself: “that must have been especially fun to write.”  This is one of those times.

Elections Code § 2027 makes the place Senator Walters’ family resides her domicile:

“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.”

Elections Code § 2028.

“If a person has a family fixed in one place, and he or she does business in another, the former is his or her place of domicile, but any person having a family, who has taken up an abode with the intention of remaining and whose family does not so reside with him or her, is a domiciliary where he or she has so taken up the abode.”

This is Walters’s winning comeback to Young — if she wants to argue that she has no intention of continuing to live with the rest of her family.  My guess is that she won’t try this gambit.  It sure would be funny, though.

 4. MULTIPLE RESIDENCES DO NOT ALLOW SENATOR WALTERS TO SELECT THE APARTMENT AS HER DOMICILE UNLESS SHE ACTUALLY LIVES THERE.

Elections Code § 2032 provides,

“Except as provided in this article, if a person has more than one residence and that person has not physically resided at any one of the residences within the immediate preceding year, there shall be a rebuttable presumption that those residences in which he or she has not so resided within the immediate preceding year are merely residences as defined in subdivision (c) of Section 349 and not his or her domicile.” [Elections Code § 2032]

In other words, if Walters hasn’t ever actually “resided” in Irvine at all, the burden on her is to prove that Irvine is nonetheless her domicile.

5. THE PRESUMPTION OF RESIDENCE IN A LEGISLATOR’S AFFIDAVIT OF REGISTRATION UNDER ELECTIONS CODE § 2026 DOES NOT APPLY TO A CHALLENGE TO A LEGISLATOR’S FRAUDULENT STATEMENT OF RESIDENCE.

Elections Code § 2026 provides a presumption that Walters may assert in opposition to Petitioners’ claim:

“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]

[§] 2026 is not a game changer for Petitioners however. Elections Code § 2026’s presumption is intended to allow elected officials to obtain a residence near Sacramento while maintaining, for voting purposes, their home district residence as their domicile. [People v. Superior Court (2011) 197 Cal.App. 4th 511, 513] The  presumption does not apply if address listed on registration affidavit is not one of legislator’s legal residences. [ibid]

The conclusive statutory presumption that the domicile of a member of the Legislature is at the residence address indicated on the member’s currently filed affidavit of voter registration applies only if the address indicated on the member’s currently filed affidavit of voter registration is one of the member’s legal residences. [People v. Superior Court (2011) 197 Cal.App.4th 511]

Young has here anticipated the main defense that Walters is likely to bring: that a legislator who goes to Sacramento, even if they reside there year-round, maintains their “residence address” on their affidavit of registration as their domicile.  This has allowed Walters to continue to be considered domiciled in Laguna Niguel even if she spent more than half of her time (or even owned a house, which I don’t know is so) in Sacramento.  One could have made the argument prior to 2011 that this presumption would apply even if the address on the affidavit of voter registration was not actually one’s residence.  However, Young cites a case showing that that argument was rejected in court just last year.

Walters’s attorney will probably try to find some way to “distinguish” that case, showing that its holding should not apply here, but it’s hard to think of a more absurd and “contrary to the spirit of the law” assertion about domicile than that Walters moved 30 minutes away from her mansion to live in her dinky apartment.  (With, let’s not forget, her family.)  In some ways, the most interesting evidence against Walters is that she and my opponent Bob Huff got Proposition 40 — trying to reject the new Senate lines drawn in redistricting — onto the ballot for this fall.  If those lines hadn’t changed, she could have saved herself several months rent in Irvine.  I’ll plan to publish the “opposition” to the memo of points and authorities when it comes out, which I think should be at the end of this week.  

Young also presented, in his sworn declaration, some new evidence about Walters’s “residence” in the Irvine apartment.

20. I [am] informed and believe and based thereon allege that Mimi Walters has not lived in the Irvine Apartment until service of the Petition for Writ of Mandate. I say this because I have visited the Irvine Apartment in early September 2012, after the State Senate adjourned. There was no sign of anyone living there. I knocked on the door, no one answered. I talked to people that lived in apartments near the Irvine apartment. All of them reported that they had not seen anyone living in the apartment “for a long long time.”  I asked if they ever saw anyone coming or going as an occupant of the apartment would do.  They said, “never.”

21 Other members of my campaign staff have been to the apartment and reported observations. One member went there for many days straight and took pictures of flowers left on the door step in June 2012 that wilted. No one was there, whether family members or the senator.

Young’s declaration is supported, on this point, by sworn declarations from his assistants Marion and Erin, both of whom looked through a gap in the blinds to find the apartment effectively empty.  But there’s more!

22 On September 27, 2012, after I effectuated service of the petition on Mimi Walters, an investigator from our campaign went to the apartment. Ms Walters and two of her campaign staff were there on the patio. The investigator had gone to the apartment the day before (September 26, 2012) and reported that no one was there, although there was a bar-b-q on the patio, with a patio set and a pair of large men’s shoes at the front door.

Ha-ha.  Just try to tell me that Mimi’s not scared by this suit — she’s scared enough to actually pretend to reside in her district for a bit!  While she’s there, perhaps one of her neighbors can explain to Sen. Walters what “Zot!” means.