Page 1 of 4

February 25, 2009Board Meeting: Jon Husted Residency

The Montgomery County Board of Elections met in session at 11:00 a.m. on Wednesday,February 25, 2009. The meeting was called to order by Chairman Gregory Gantt. Members inattendance were Thomas J. Ritchie, Dennis Lieberman, and James Nathanson.The following is a transcript of discussion regarding Senator Jon Husted’s residency.GG Next item…report from legal counsel on the question we asked you regarding SenatorHusted.VW You had asked me to interpret Ohio Revised Code Section 3503.02(G). In the interim wehave received a Memorandum in Support of Dismissal of Residency Hearing fromSenator Husted’s attorney Maria Armstrong. I suppose all of you have gotten a copy of that. I’ve reviewed that also. This is kind of an odd thing. Let me start with this, (G) of course

says “If a person removes from this state to engage in the services of the United States government, the person shall not be considered to have lost the person’s residencein this state during the period of such service, and likewise should the person enter theemployment of the state, the place where such person resided at the time of the person’sremoval shall be considered to be the person’s place of residence.”

Senator Husted,when he testified at the last Board meeting, or the meeting before last, indicated that itwas his opinion under that particular section that this exempted him from (D) of 3503.02,which is the subsection that says that if a person’s family resides in a particular locationas other than the county where he’s registered, then that shall be considered his place of residence. Interestingly enough, the Senator’s attorney has argued that 3503.02(G)should be read…here’s that word again that you and I discussed yesterday…that term inpari materia with Article 2, Section 3 of the Ohio Constitution. Article 2, Section 3 says

“Senators and representatives shall have resided in their respective districts one year next preceding their election, unless they shall have been absent on the public business of the United States, or of this State.”

The Senator’s position, I believe, is that when youread this together with 3503.02(G), that it can be fairly read to mean that having oncebeen elected…if you’ve been absent from your particular jurisdiction on the business of the state, which would be his business in Columbus on behalf of the local district, that hedoesn’t loose his place of residence in Montgomery County as a result of that. TheSenator’s attorney has argued that that’s perfectly clear under the Code. I would submitthat it’s not perfectly clear at all…it’s anything but. This is a good example of a poorlydrafted section of the Code. I don’t know what it means, to be quite frank with you. Itcertainly can be read the way that the Senator is suggested, but if you look at the actualwording of this particular subsection…the key term is removal, and in the first clause,removal is with reference to removal from the state. In the second clause, there’s noparticular word that modifies that in anyway shape or form, it just says removal. I don’tknow…removal from what? Removal from the city, removal from the county, removalfrom the state…who knows? I don’t know. My position is this…expanding beyond this just a little bit, if you’ll entertain this. I’ve had private discussions with several of yousince we began discussing this. You’ll recollect that I have said on several occasions thatit’s my opinion that subsection (D) is in fact something that is known as a rebutable

Page 2 of 4

presumption. (D) says

“The place where the family of a married person resides shall beconsidered to be the person’s place of residence; except that when the spouses haveseparated and live apart, the place where such a spouse resides the length of timerequired to entitle a person to vote shall be considered to be the spouse’s place of residence.”

We’ve had some prior conversation about whether shall means shall in thatparticular statute. As the layers in the room know, most of the time it does, but notalways. In this particular instance I would say that it does not. The reason I saythat…this is mentioned in the Senator’s brief, and it’s fairly well stated, it comports withthe conclusion that I had already drawn with regard to this…although, to be honest withyou, I was not familiar at the time with the case of

Carrington vs. Rash

, although it wassited, I had not read it then, and the

Bell vs. Marinko

case.

Bell vs. Marinko

is a case thatemanates out of the Northern District of Ohio at Toledo…it specifically addresses this3503.02(D). Basically, what it says is that…let me read just one little part of this, it saysthat

“bonafide residents may be determined not only by an intent to reside at a fixed place, but also factors that express such an intent.”

If you look at 3503.02 in its totality,what you’re talking about…when you look at (D), (D)’s not talking about intent, it’stalking about an objective fact…a person’s family resides some place else. That is anexpression, if you will, according to this court , and I think correctly so of intent. Intentis not only what a person says, intent can also be implied from the person’s acts. Theperson in this particular instance has a family, which resides some place else. The

Carrington

case, which is sited by the Federal District Court in Toledo, and this

Bell

casebasically says that if you’re going to keep from running afoul to the equal protectionclause when you’re talking about residency and presumptions regarding residency, you’regoing to have to make those presumptions rebutable, as opposed to irrebutable. Now, if you look at this within the context of the Ohio statute and within the context of whatyou’ve got before you…I think what this all boils down to is this, Senator Husted’sfamily doesn’t live here, they live some place else. That objectively raises thequestion…is the residence in Montgomery County proper or should it be proper in theother location? The presumption is that the residence is other than MontgomeryCounty, but the presumption is capable of being overcome. It’s overcome bypresentation of evidence. The evidence has been presented here by way of the testimonyof Senator Husted. So, the question before you in my opinion is whether or not theevidence that was presented by the testimony of Senator Husted, which comports with theother intent sections of 3503.02, was sufficient to overcome the presumption insubsection (D) with regard to the residence of his family. Now, the other thing that Iwant to address just briefly with regard to that is…we’ve got this

Spangler

case, whichthe lawyers know is hanging around out there, which talks about this particularsubsection and more or less seems to indicate that it’s a forgone conclusion…if that’s thesituation, your family resides some place else, then for residence purposes that’s yourresidence. But the

Spangler

case did not look at, and did not discuss the

Carrington

case…the

Carrington

case preceded that. I think basically, if I might, that it is somethingthat probably escaped their attention. The question of whether or not (D) should beapplied as an absolute, or whether it’s something that can be overcome simply was notsomething that they examined. The

Bell

court in Toledo did examine it…I think theyexamined it properly. Under those circumstances, I think that with regard to this again,what you’ve got to ask yourselves as a Board is whether or not the evidence that was

Page 3 of 4

presented by Senator Husted with regard to residency was sufficient to overcome thepresumption of residency that occurs in subsection (D).GG Vic, after that hearing I started doing some digging on my own. I asked Betty to forwardto each of you…there was an opinion by Secretary Brunner on October 28

of 2008 inMorgan County. Did you get a chance to review that?VW It appears that Senator Brunner has interpreted subsection (D) in the same manner as the

Bell vs. Marinko

case.GG It’s very similar to Senator Husted’s testimony. I also found, even though it’s not anopinion on the…JN She’s not quite Senator yet.VW That’s right, pardon me. Not quite yet.GG On the Ohio State Law website discussing Governor Strickland having a home inWashington, Columbus, and in his district. I said in my e-mail to all of you…I said basedupon…and I look as we’ve learned, not so much at case law and Secretary Brunner says,reading her opinion of October 28

and this law opinion, and based on Governor, I’msorry, Senator Husted’s testimony, I make a motion that I’m satisfied with his testimonythat he is a resident of Kettering…he was on the ballot. I make a motion that we’ve doneour job and investigated this and that he’s a resident of 148 Sherbrooke Avenue.JN And I second the motion.DL Before we vote, I think we probably ought to have some discussion on this.GG Please.DL We’ve spent a lot of time on this and just to remind everyone of the background…thiscame to our attention initially through a Dayton Daily News article about claimingexemptions in Columbus and Dayton. I think that’s how it came to the public’s view.Then, we received a complaint from two different individuals, one of whom…one is notan individual, one is a 501 C3, the other is an individual who filed a complaint with us toinvestigate Mr. Husted and whether or not Mr. Husted lives in the district. That was aregistered Republican from his district. Based on that, we decided to do an investigation.One of the things that we did was that we asked Mr. Husted in here to give testimony,which he did do. Unfortunately, there’s no documentation provided by him to supportsome of the assertions he was making. No utility bills; the trust that he mentioned as faras his deed to the house…I was really interested in examining that because I think thatgoes to future intent…never received that; Kettering income tax to demonstrate whetherhe’s paying an income tax in the City of Kettering as his residence…didn’t receive that;didn’t receive any utility bills as mentioned. Did look as some water bills, which wouldindicate that he has very low water usage in that Kettering residence. One of the thingsthat struck me about his testimony was the fact that he couldn’t remember…he said thathe and his family had visited the residence the weekend before, however, he couldn’teven remember if they stayed overnight. So, I’m looking at this based upon the legalinterpretation, not under

Spangler

, but I’m looking at it under the

Bell

analysis. The

Bell

analysis is that there is a rebutable presumption, as I understand it. A rebutablepresumption to me means that it is undisputed that his family lives in Columbus,therefore, the is a presumption that his residence is in Columbus. That needs to berebutted with some evidence by Mr. Husted. I think he fell short in his testimony of rebutting that evidence. Therefore, based upon that, I’m going to have to vote againstyour motion.