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Memorandum
MATHIAS
H.
HECK,
JR.
Prosecuting Attorney
To:
Vidor
T. WhIsman
I
From:
Nolan Thomas
Subject:
"Residence"
and
the reading
of
R.C. 3503.02I
Date:
November
14,
2008
1
I
I
I've given some thought to the provIsions
of
R.C. 3503.02 and
how
thoseprovisions -specifically, divisions (A) and (0) -can
be
reconciled where they appear toconflict
\lVhat
fOllows
is
a
summary
of
what I've found after researching the relevantstatutes and other legal authorities and
an
observation
of
my
own.Courts
have,
at times, given
the
several factors different treatment.
In
someinstances, 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 trumpthe individual's intention to return to another.
tn
the latter category falls
State ex
reI.
Eaton
v.
Erie
Cty, Bd.
of
Elections,
Erie
, ~ p p ,
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
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 considerationof 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 andmtent, 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.
8 7 - B ~ 3 6 ,
thecourt determined that
an
individual retained
a
residence in one place even
though
he
and
his
wife
\Nere
living
inan
apartment in another, since he and his wife were living inthe 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 asettled 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 anelement of intent to return to a settled abode. There is
an
indicia
of
permanence toclassify it
as
a legal residence."The court
in
Bell
v.
Marinko
(6
th
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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JJ
intent: "Bona fide residence may
be
determined not only by
an
intention to reside at afixed place, but also factors that express such
an
intent.
We
find that these factorsinclude 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 severalcomments
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
presentintent.' 1992 Ohio
OP.
Atty.
Gen.
No.
008.
"If
a
person has one home, that home
is
the person's voting residence. If aperson 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 thanone of the situations described
in
R,C
3503.02(B)-(H),
and thus to have morethan one residence. This
is
possible because "[a] man may have more than oneresidence although
he can
have
only one domicile," and R.C. 3503.02 uses theterm residence rather than the more narrow legal concept of domicile, When
an
indiVidual
has
more than one dwelling that qualifies
as
a voting residence, theindividual 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." 1993Ohio
00.
AttY.-Gen.
No. 55
(internal citations omitted).The decisions of the Ohio Supreme Court have not consistently fallen into one ofthese 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 ofresidence
]s
"fixed habitation." "Habitation"
is
defined
in
Webster's Third NewInterr.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
thesame 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 beconsidered
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 notedthat
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 thefamilies "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'sresidence,
e.g.,
the intentions of the parties, then
R.C.
3503.02
is
very quickly read outof existence.)
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