Montogomery County Prosecutors Report

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Memorandum

MATHIAS H. HECK, JR.

Prosecuting Attorney

I From:

To: Vidor T. WhIsman

Nolan Thomas

1

II Date: November 14, 2008

Subject: "Residence" and the reading of R.C. 3503.02

I I've given some thought to the provIsions of R.C. 3503.02 and how those provisions - specifically, divisions (A) and (0) - can be reconciled where they appear to conflict \lVhat fOllows is a summary of what I've found after researching the relevant statutes and other legal authorities and an observation of my own. Courts have, at times, given the several factors different treatment. In some instances, they are treated as guideposts to be used in determining "residence." In others, specific provisions are permitted to prevail over more general ones, such that, for example, the residence of an individual's family in one place is sufficient to trump the individual's intention to return to another.

tn the latter category falls State ex reI. Eaton v. Erie Cty, Bd. of Elections, Erie No. E-05-065, 2006-0hio-966, in which the court effectively upheld a decision of a Board of E!ections which found an individual was not a resident where he owned a

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second home in another state, his wife was a full-time resident of that state, and his vv'ife had registered to vote in that state. The court's decision displays no consideration of the individual's intent to reside in one place or another. Declsions falling into the first category generally treat "residence," as that term is used in the first sentence of R.C. 3503.02, to mean a combination of habitation and mtent, and then use divisions (A) through (I) as tools to determine an individual's intent. In State ex rei. Bigler v. Graham (January-26, 1988), Belmont App. No. 87-B~36, the court determined that an individual retained a residence in one place even though he and his wife \Nere living in an apartment in another, since he and his wife were living in the apartment only temporarily and evinced an intent to return to the first place. Important to that court's decision was its definition of "residence": "residence means a settled or permanent horne or domicile and includes the fact of abode and intention of remaining. InterNoven through the definition of residence in a myriad of cases is an element of intent to return to a settled abode. There is an indicia of permanence to classify it as a legal residence." th

The court in Bell v. Marinko (6 Cir. 2004), 367 F.3d 588 likewise treated one of the divisions of R.C. 3503.02 as a guidepost for determining the uitimate question of

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intent: "Bona fide residence may be determined not only by an intention to reside at a fixed place, but also factors that express such an intent. We find that these factors include the residence and voting precinct of a voter's spouse. To that end, consideration of the residence of a voter's spouse in determining the voter's residence is relevant and appropriate." Supporting the approach taken by the courts in these mo cases are several comments in the Opinions of Ohio's Attorneys General, which are as follows: ''The fact that an individual lives a majority of the time elsewhere may be evidence of which habitation he views as fixed and which he views as temporary. Ultimately the determination of residency is a question of fact based on present intent.' 1992 Ohio OP. Atty. Gen. No. 008.

"If a person has one home, that home is the person's voting residence. If a person has more than one home, the facts may support a voting reSIdence in more than one location, and the individual's intent wiJI be relevant to a determination of which of those locations IS the residence for voting purposes." 2002 Ohio Op.8tty. Gen, No. 25. "It is possible, however, for an individual to come within the scope of more than one of the situations described in R,C 3503.02(B)-(H), and thus to have more than one residence. This is possible because "[a] man may have more than one residence although he can have only one domicile," and R.C. 3503.02 uses the term residence rather than the more narrow legal concept of domicile, When an indiVidual has more than one dwelling that qualifies as a voting residence, the individual may seiect which of the qualifying places is his or her voting residence, although by law the individual is of course limited to choosing only one." 1993 Ohio 00. AttY.-Gen. No. 55 (internal citations omitted). The decisions of the Ohio Supreme Court have not consistently fallen into one of these categories or the other. For example, in Kyser v. Bd. of Elections of Cuyahoga Cty. (1973), 36 Ohio St.2d '17, 303 N.E.2d 77, after stating that R.C. 3503,02 "defined" "residence," the court remarked that "[t]he essence of that statutory definition of residence ]s "fixed habitation." "Habitation" is defined in Webster's Third New Interr.ational Dictionary', as "* .... dwelling place; house, home, residence,"" Kyser v. Bd. of Elections of Cuyahoga Cty. (1973), 36 Ohio St.2d 17, 303 N.E.2d 77. At the same time, the Court strictly applied R.C. 3503.02(0) to determine the residence of an individual and did so over a dissent that argued that the individual's intent should be considered In its decision in State ex rei. Spangler v. Bd. of Elections of Cuyahoga ely. (1983), 7 Ohio St.3d 20, 455 N.E.2d 1009. However, in that opinion, the majority noted that it had, at times, permitted "residence" within the meaning of R.C. 3503,02 to be found at a place other than where an individual's family resided on the grounds that the families "were residing elsewhere on a temporary basis, with the intention of returning." (It should be noted that if the "residence" of an indiVidual's family is to be determined by the same rules that govern the determination of the individual's residence, e.g., the intentions of the parties, then R.C. 3503.02 is very quickly read out of existence.)

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It appears to me that the interpretation that gives effect to all provisions of Re. 3503.02 is also the one that permits the more specific divisions to prevail over the general ones. Under this approach, the general provisions are those that pertain to an individual's intent (A), (B), and (C), for example. The other provisions, then represent legislative declarations that an individual's intentions are conclusively established by certain behaviors, e,g., a continuous absence of more than four years, voting In another state, and relocating one's family.