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CASE NO.

12-CI-5674

JEFFERSON CIRCUIT COURT DIVISION FOUR (4) JUDGE CHARLES L. CUNNINGHAM, JR.

ROBERT D. WALKER, II v. OPINION AND ORDER

MOVANT

CHRIS THIENEMAN, JEFFERSON COUNTY BOARD OF ELECTIONS, ALISON LUNDERGAN GRIMES, in Her Official Capacity as SECRETARY OF STATE, AND STATE BOARD OF ELECTIONS FOR THE COMMONWEALTH OF KENTUCKY ***********

RESPONDENTS

This action comes before the Court on a challenge to the good faith of a candidate under KRS 118.176. The Movant, Robert D. Walker, II, questions the bona fides of Chris Thieneman, the Republican state senate nominee for the 37th State Senate District. After careful consideration of the record and the memoranda of the parties, as well as the applicable case, statutory and procedural law and being otherwise sufficiently advised, the Court concludes it should have additional information before deciding the issue and directs the parties to procure as expeditiously as possible the additional information. FACTS On October 24, 2012, Robert D. Walker, II, a resident of the 37th State Senate District filed the immediate action questioning the bona fides of Chris Thieneman, the Republican nominee for state senate in that district. The case was randomly allotted to Division 13, but Judge Fred Cowan recused himself pursuant to SCR 4.3000, Canon 3(E)(1), on the 25th. Chief Judge Audra Eckerle randomly re-allotted the case to Division 3, but Judge Mitch Perry was unavailable to hear the matter on the 26th. Accordingly, the Court Administrator’s office

inquired whether this Division could hear the matter. The Court agreed to do so and, with the agreement of the parties, presided over an evidentiary hearing on October 26 and oral argument on November 1, 2012.1 Mr. Walker contends that Mr. Thieneman resides in a condominium located at 2411 Brownsboro Road (hereinafter “Cliff View”), Unit 407, Louisville, Kentucky 40206, which is in the 33rd State Senate District, rather than in the 37th State Senate District. In support, he submitted the affidavit and testimony of John Paul Davis, a Cliff View resident and current president of its Homeowners Association. In his affidavit, Mr. Davis asserts that he has personal knowledge that Mr. Thieneman owns four Cliff View units and resides in Unit 407, where family members regularly visit. On direct examination he added that during conversations contemporaneous with Mr. Thieneman’s purchasing of the units on or about June 30, 2011, he discussed living in Unit 407 and leasing the others to tenants. Since becoming an owner, Mr. Thieneman has been active with the Homeowners Association as it sought to renovate poorly constructed areas of the structure. Additionally, consistent with his affidavit, Ms. Davis testified that Mr. Thieneman has a mail box, and receives mail, at Cliff View. However, under crossexamination Mr. Davis conceded that he only sees Mr. Thieneman once or twice a month and has never actually observed Mr. Thieneman retrieve mail at Cliff View. He is unsure who lives in Unit 407, has never seen the inside of the unit, and does not even know what type of vehicle Mr. Thieneman drives.

                                                            
The Court includes these details about how it came to preside over this case only because there has been a suggestion that the Movant engaged in forum shopping amongst the thirteen divisions of Jefferson Circuit Court. Mr. Thieneman also insisted that he was the victim of an ”ambush tactic” in having a summary hearing only five hours after being served. However, at the beginning of the hearing on the 26th the Court offered both parties the opportunity to take some discovery or to introduce proof on the 1st and both decided to produce all their evidence on the 26th.
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Next, Mr. Thieneman testified about a number of matters pertaining to his residency during the preceding fourteen months or so. Along with family members, Mr. Thieneman develops and manages properties throughout Jefferson County, including mobile home parks, self-storage facilities, office buildings, and others. On more than one occasion, he testified that he is “not the smartest guy,” but surrounds himself with competent professionals and defers to their judgment and expertise when making decisions. To that end, his employees and subcontractors assist in obtaining permits and ensure that projects proceed lawfully. He testified he has moved thirteen times in the past sixteen years.2 Mr. Thieneman owns four units in the Cliff View building. Two are residential and two are office/retail units. He testified that he was reticent to become active with the homeowners association until it became apparent that the building needed some renovations. Then, he testified, he did assist with expert advice on a number of thorny issues. Despite his occasionally staying the night in Unit 407, he maintains that he does not reside at Cliff View. However, he did not refute Davis’s recollection that he had verbalized his intent to do so at one time. In 2005, Tom Thieneman, Chris’s older brother, obtained a building permit for a facility that operates as Fort Locks Self Storage, located at 7650 Dixie Highway. The work description was for a “new building for mini-warehouse and office (no residence)…” and was in use group S-1 and zoning district M2 (Plaintiff’s Exhibit 11).3 Nevertheless, a room described as a manager’s apartment is above the ground level office. The Louisville-Jefferson County Metro Government Department of Inspections, Permits & Licenses issued a Certificate of Occupancy on July 20, 2005, (Plaintiff’s Exhibit 14). Although there is no evidence of a permit relating to
                                                            
Presumably, these experiences would compel one to be familiar with laws pertaining to driver’s licensing and voter registration – or to hire folks who actually pay attention to the law so they might advise you accordingly. 3 In sum, the address is allegedly neither zoned, nor permitted, for residential use.
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plumbing ever being issued, the manager’s apartment, if not the office, includes plumbing according to some of the witnesses. The facility manager could not house her family in the small second story space, so she stayed at a nearby mobile home park owned by Mr. Thieneman. Mr. Thieneman attempted to rent out the space as a residence, to no avail. Thus, the Fort Locks apartment remained unoccupied for a number of months or years. The Court notes that many self-storage facilities have a residential apartment on-site for the manger and this is often touted as a selling point to security-conscious customers. Judging from both its website and Yellow Pages listing, it appears Fort Locks to this day does not claim to have an “on-site manager”. Mr. Thieneman also testified that in late September or early October, 2011, he moved from his residence at 2606 Alia Circle, 40222, near Ballard High School, to the manager’s apartment at 7650 Dixie Highway, near PRP High School. He testified repeatedly during the October 26 hearing and May 11 hearing in Division 34, that 7650 Dixie Highway was his residence starting in late September, 2011, and remains his residence today.5 Unsatisfied with the apartment’s condition, Mr. Thieneman decided to perform some renovations later in the fall. Although he could have stayed at Fort Locks during the renovations, he chose to spend a couple of nights at a motel he owned at 11905 Dixie Highway, near Valley High School.6 One such night fell on the eve of the November 6, 2011, statewide election. Mr. Thieneman allegedly woke up that morning and, it seems, for the first time since moving, gave some thought to voting. Rather than refer to one of the numerous resources available to voters in Jefferson County to determine the polling place associated with his
                                                            
 A comparable action was filed prior to the primary election by a Republican, Mr. Brewer, which was heard and resolved in Division 3. To the extent that case impacts the ruling herein, it will be discussed later. 5 In his brief, Mr. Walker insists that Mr. Thieneman testified he did not move into the Fort Locks apartment until after the 2011 election. Although Mr. Thieneman had difficulty recalling the exact date he moved to Fort Locks, and at one point stated it was “after the election” of November 8, 2011, he presented testimony from himself and others in support of his contention that he moved in sometime in late September or early October. 6 Although on the same road, the motel is in a different senate district than Fort Locks.
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residence at Fort Locks, Mr. Thieneman walked to the polling place closest to both the motel where he had stayed the night and a mobile home park he owned. Once inside, he approached a poll worker to ask where he should vote.7 Rather than determine the polling place associated with 7650 Dixie Highway, which is in precinct A134, she allegedly asked him where he slept the night before. He answered 11905 Dixie Highway, and she advised him that was sufficient to permit him to vote at that polling place as a resident of precinct K132. Consistent with this cavalier approach to the privilege and the responsibility of voting, he executed an “Oath of Voter” form, which reads as follows: When a voter has moved to a new precinct within the same county and is not listed on the current precinct roster, when the officers of an election disagree as to the qualifications of a voter, or when a voter’s right to vote is disputed by a challenger, the voter shall sign the following oath as to his qualifications before he is permitted to vote. I, CHRIS THIENEMAN Thieneman, Chris (Name, Please Print), hereby state, under oath, that I am duly registered as a BEPUBLICAN[sic] (Political Party Preference) voter in this precinct in A134 (County) County, Kentucky and I currently reside at 11905 #1 DIXIE HWY (Current Residence Street Address and Zip Code). My Previous address was 2606 ALIA CIRCLE in this county. I know of no legal disqualifications which should prevent my vote from being cast and counted at this election and I affirm that I have not voted and will not vote in another precinct or by absentee ballot in this state during this election. I understand that any person who falsely signs and verifies any form requiring verification shall be guilty of perjury and subject to penalties therefore. I further understand that if I execute the Oath and am not a registered voter at the current address stated above, I have committed a criminal act.

                                                            
During the Division 3 hearing, Mr. Thieneman testified this polling place happened to be the one assigned to a number of his friends. He also mentioned that he knew some of the poll workers, presumably fellow Republicans. One was his cousin’s wife and the other was a friend. He started discussing politics with the latter before someone else scolded her. Then, that poll worker addressed his primary query: where should he vote? She initially informed him that he could not vote at that location. Then, she “jokingly” asked where he stayed last night. He responded that he stayed at the motel. She then requested that he fill out the Oath of Voter form and said he could vote at that location. Although he knew that “no one could possibly live” in the motel room, in part because it was “the size of a jail cell”, he obligingly filled out the form and voted in that precinct.
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Chris Thieneman 6-6-65 … 11-8-11 (Voter must sign here/Date of Birth/Social Security Number [omitted by redaction]/Date) … Rather than question the obvious impropriety of the poll worker’s advice or rely upon the plain language of the Oath of Voter to dissuade him from doing so, Mr. Thieneman submitted the Oath of Voter form, cast his ballot, and went about his business. In sum, Mr. Thieneman proclaimed to the Jefferson County Clerk and State Board of Elections under penalty of perjury that his residence on November 8, 2011, was 11905 #1, Dixie Highway, Louisville, KY, 40272. There is some confusion about when Mr. Thieneman registered to vote while listing the Fort Locks address as his residence. Mr. Thieneman testified that the only contact he had with the Board of Elections regarding his voter registration was on November 8, 2011, and assumes that his registration changed when he obtained a driver’s license corresponding with his current address at 7650 Dixie Highway. The record includes a “Voter Registration Update” dated January 24, 2012, relating to the Fort Locks address, but the photocopy of his driver’s license filed herein (Plaintiff’s Exhibit 1) indicates it was issued on March 28, 2012.8 After Mr. Thieneman testified, he called four witnesses who testified that he either lives at 7650 Dixie Highway or does not live at Cliff View. April Smith, Mr. Thieneman’s girlfriend, testified that they lived together at the Alia Circle address until October, 2011, when he moved to Valley Station and she to Goshen. Although she does not know precisely when Mr. Thieneman moved to 7650 Dixie Highway, she knows he has lived there for many months. She has stayed there on a number of occasions. Likewise, Mr. Thieneman occasionally stayed with her in Goshen. Occasionally, they stay at Cliff View, Unit 407, which is staged as a model home.
                                                            
Conversely, during the Division 3 hearing on May 11, 2012, a photocopy of Mr. Thieneman’s driver’s license apparently indicated that he obtained a license corresponding with the Fort Locks address on January 20, 2012.
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Next, Ashley Lyons, an individual who rents Unit 307 from Mr. Thieneman, testified that she intends to purchase Unit 407 as soon as she builds her credit to a sufficient point to secure financing. She stated that no one resides in Unit 407 because she would be able to hear foot traffic if it was regularly occupied. As of now, Unit 407 is furnished as a model home. Terry Arrington cleans Mr. Thieneman’s Fort Locks apartment every week and has done so since shortly after Mr. Thieneman arrived in September, 2011. She testified that Mr. Thieneman lives at Fort Locks because he keeps personalty there. (As an additional inference, presumably, a dwelling that needs regular cleaning is frequently occupied.) Finally, Tommy Thieneman, testified that he frequently visits Mr. Thieneman at the Fort Locks apartment. He added that Mr. Thieneman has lived there for many months and they meet for coffee once or twice a week early in the morning at a location close to Fort Locks. ANALYSIS Under KRS 118.176, any qualified voter in a precinct may question the bona fides of any candidate seeking election in a general election in that precinct before the election occurs. The Circuit Court in the judicial circuit in which the candidate resides has jurisdiction over the matter and conducts a trial addressing the matter “summarily and without delay.” KRS 118.176(2). A candidate’s residency is one such bona fide a voter may contest. As for state senators, Section 32 of the Kentucky Constitution requires, amongst other things, that candidates be a resident of Kentucky for “six years next preceding his election, and the last year thereof in the district for which he may be chosen.” “The word ‘resident’ used in reference to a candidate in a state, district, county, or city election shall mean actual resident, without regard to the residence of the spouse of the candidate.” KRS 118.015(7). See also Noble v. Meagher, 686 S.W.2d 458, 462 (Ky. 1985) and Mobley v. Armstrong, 978 S.W.2d 307, 310 (Ky. 1998). “Actual residence is
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defined as an abode where someone actually lives, and ‘not a mere naked legal residence.’” Mobley at 310 quoting Black’s Law Dictionary, 6th ed. Courts evaluate one’s actions as well as intent when determining residency. Id., citing Semple v. Comm., 205 S.W. 789, 791 (Ky. 1918). Amongst other actions, and relevant to the immediate case, courts assess the following: voter registration, where one sleeps most of the time, information contained in one’s driver’s license;9 and where one keeps personalty related to home life. Mobley. at 311. Before addressing the substance of Mr. Walker’s motion, the Court must consider Mr. Thieneman’s argument that the doctrine of res judicata, (specifically, one of its variants: issue preclusion), bars Mr. Walker’s claim because it is substantively identical to the claim a Republican primary candidate for the 37th State Senate District, Thomas Brewer, made earlier in the spring. Yeoman v. Com., Health Policy Bd. contains a brief description of res judicata and its operation: The rule of res judicata is an affirmative defense which operates to bar repetitious suits involving the same cause of action. The doctrine of res judicata is formed by two subparts: 1) claim preclusion and 2) issue preclusion. Claim preclusion bars a party from re-litigating a previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action. Issue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action. The issues in the former and latter actions must be identical. The key inquiry in deciding whether the lawsuits concern the same controversy is whether they both arise from the same transactional nucleus of facts. If the two suits concern the same controversy, then the previous suit is deemed to have adjudicated every matter which was or could have been brought in support of the cause of action.

983 S.W.2d 459, 464-5 (Ky. 1998) (internal citations omitted). The elements of issue preclusion are as follows:
                                                            
Under KRS 186.540(1), individuals must apply for a duplicate license within ten days after moving to a new address. Indeed, the back of each drivers license issued in Kentucky includes the following instruction: “A driver MUST get duplicate license within 10 days of address or name change.” (Emphasis in the original.) Thus, by asserting he moved to PRP in September, Mr. Thieneman essentially confesses to a Class B misdemeanor, KRS 186.990(3).
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First, (1) “the issue in the second case must be the same as the issue in the first case.” In addition, the issue must have been (2) actually litigated, (3) actually decided, and (4) necessary to the court's judgment. Unlike claim preclusion and the rule against splitting causes of action, which apply broadly to any claim which “might have been brought forward at the time[,]” Issue preclusion requires that “[t]he issues in the former and latter actions ... be identical.” Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 374 (Ky. 2010) (internal citations omitted). After reviewing the record relating to Mr. Brewer’s questioning Mr. Thieneman’s bona fides as a candidate for the 37th State Senate District primary in Division 3, the Court concludes that issue preclusion does not apply to bar Mr. Walker from pursuing his claim. Like Mr. Brewer, Mr. Walker submitted the Oath of Voter Mr. Thieneman executed on November 8, 2011, and referenced the dates in which he changed his driver’s license and voter registration to comport with the Fork Locks address. Thus, some of this evidence is the same in Mr. Walker’s case. However, he presents evidence of Mr. Thieneman’s alleged residence at Cliff View both before and after the conclusion of Mr. Brewer’s action. Division 3 did not analyze these new facts. Also, Mr. Walker presents new evidence that the Fort Locks address could not serve as a residence based on zoning and permits. It is true that Judge Perry stated no less than three times that he was determining the following sole issue: “where does he live and how long has he lived there?”10 But new evidence has been presented. Moreover, KRS 118.176 clearly envisions the possibility of a candidate’s qualifications being questioned in both the primary and general elections. Indeed, much mischief could result from a rule which prevented a legitimate review of a candidate’s residency simply because a “friendly” action prior to the primary was resolved

                                                            
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The Court agrees that when distilled to its essence, this is the question KRS 118.176 envisions in a contest of a candidate’s bona fides. The factors listed in Noble, supra, and Mobley, supra, offer counsel and the Court guidance, but not a checklist, of the evidence to be considered when resolving of this fundamental question.

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favorably to the candidate.11 Accordingly, issue preclusion does not bar Mr. Walker from pursuing his claim. Even so, the Court is troubled by the events surrounding Mr. Thieneman’s vote in 2011, and what they mean in the greater context of Kentucky’s electoral laws. Specifically, the Court is concerned that the representations Mr. Thieneman made in Oath of Voter on November 8, 2011, act to estop him from asserting he has resided in the 37th Senate District at least since November 6, 2011, viz., a year preceding the 2012 election. During the hearing the Court shared this concern and related a recent trial in which the plaintiff failed to update her Chapter 13 bankruptcy asset disclosure to include the action being tried. One defendant moved for dismissal on the grounds of judicial estoppel because plaintiff made inconsistent assertions in separate judicial proceedings and sought to benefit from both of them. The doctrine of judicial estoppel “protects the integrity of the judicial process by preventing a party from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding.” Colston Investment Co. v. Home Supply Co., 74 S.W.3d 759, 763 (Ky.App. 2001). Factors courts recognize when analyzing an assertion of judicial estoppel are as follows: “(1) whether the party's later position is clearly inconsistent with its earlier position; (2) whether the party succeeded in persuading a court to accept the earlier position; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Hisle v. Lexington-Fayette Urban County Government, 258 S.W.3d 422, 434-5 (Ky.App. 2008). “[E]stoppel is a question of fact to be determined by the circumstances of each case.” Weiand v.

                                                            
 The Court is not suggesting Mr. Herman’s claim was a friendly contest or that Judge Perry did not conduct a probing inquiry into the matter. Rather, the Court simply acknowledges there are strong policy reasons why the courts and the legislature would allow what might seem, at first glance, to be a ‘second bite at the apple’.
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Board of Trustees of Kentucky Retirement Systems, 25 S.W.3d 88, 91-92 (Ky. 2000) (internal citation omitted). Similarly, equitable estoppel bars a party from benefitting from inconsistent behavior outside a judicial setting. “Under the doctrine of equitable estoppel, certain conduct by a party is viewed as being so offensive that it precludes the party from later asserting a claim or defense that would otherwise be meritorious.” Akers v. Pike County Bd. of Educ., 171 S.W.3d 740, 743 (Ky. 2005). The essential elements of equitable estoppel are[:] (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. And, broadly speaking, as related to the party claiming the estoppel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.

Weiland, supra, at 91(internal citations omitted). After reviewing case law on judicial estoppel and equitable estoppel one principle becomes clear: the law strongly disfavors permitting individuals to benefit in one forum after asserting something inopposite in a different forum. Here, on November 8, 2011, Mr. Thieneman swore under penalty of perjury that his current address was 11905 #1, Dixie Highway, Louisville, KY 40272. He swore to this even though he knew that he did not reside there and in fact considered the motel room at 11905 #1 uninhabitable as a residence. He arguably derived a benefit from this disclosure by being able to

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vote in a foreign precinct.12 Now, despite these actions, he seeks election in the 37th State Senate District by virtue of being a resident at 7650 Dixie Highway for the year preceding the 2012 election on November 6. At a minimum, one could reasonably question whether a candidate so oblivious to, or unconcerned about, the rules has removed himself from consideration of becoming one of 38 persons who will help make the rules in the Commonwealth for the next several years as a senator. The imposition of “electoral estoppel” based on conflicting sworn statements would be a permutation of judicial estoppel which is well-established in law. The use of estoppel to prohibit a candidacy is not unprecedented in Kentucky. In Horn v. Wells, 69 S.W.2d 1011 (Ky. 1934), a candidate resigned from office after an inquiry into improper contributions to his campaign. He later sought to be seated but he was “estopped to now question the validity of his removal” by his earlier conduct. Id., at 1012. A somewhat more analogous fact pattern is found in Thompson v. Emmert, 46 S.W.2d 502 (Ky. 1932), cited by Defendant. There a voter stated in a police court affidavit he resided at one address but later asserted for voting purposes that he lived elsewhere. The case holds the prior statement is a factor to be considered when deciding the ultimate issue of residency but it is not controlling. “The affidavit tends to contradict the testimony of Hubert Baskett, but he is corroborated by the testimony of his sister and his two brothers. The statements made before the police judge were incidental, and not addressed to the issue then under investigation.” Id., at 503. Because the residency representation made in the Oath of Voter was not incidental, but central, to the purpose of the oath, Thompson is distinguishable from the case at bar.
                                                            
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Mr. Thieneman insists that the 2011 ballot was the same throughout Jefferson County, eliminating the possibility that his vote caused any nefarious impact upon the results. The Jefferson County Clerk has confirmed this was so at least as to the two precincts in question, A134 and K132.

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This brings the Court to the public policy considerations that support imposition of electoral estoppel. In his brief, Mr. Thieneman quoted Everman v. Thomas, 197 S.W.2d , 62 (Ky. 1946) for the proposition that “a citizen cannot select for himself a voting place…” This is an apt quote in the context of this case given the public discourse on the topic of voter fraud during the current election cycle. If the behavior Mr. Thieneman and the poll worker engaged in could pass without recourse, public confidence in the integrity of elections would wilt. Indeed, if all it takes to vote in a foreign precinct within Jefferson County is to stay the night somewhere and seek out a friendly, party-affiliated poll worker to assist in executing an Oath of Voter, local hotels in hotly contested precincts would no doubt be sold out on election eve. Such behavior is unlawful and there must be disincentives to deter individuals from engaging in it. Electoral estoppel is one such disincentive. Nonetheless, this Court will not decide this case on that basis for two reasons. First, if such a doctrine is to be adopted and imposed, it should be set out and described by an appellate court rather than a trial court. This Court would encourage the appellate courts to do so should this case be brought to them for review. Second, because it appears Mr. Thieneman would have cast his vote on the same ballot for the same candidates regardless of where he registered, he did not receive any benefit by falsely filling out the Oath of Voter aside from saving himself a drive of several miles from Valley Station to PRP. This seems too insignificant a benefit to impose an estoppel. In summary, the Court is neither precluded from addressing Mr. Walker’s claims solely because of Division 3’s earlier ruling given the new evidence nor is it bound to find against Mr. Thieneman solely because of his Oath of Voter. Thus, the Court must assess the evidence and make a finding as to Mr. Thieneman’s residency.
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Stated very broadly, the evidence amounts to the testimony of several witnesses for Thieneman and the inferences from several documents for Mr. Walker. In weighing this evidence the Court must be mindful of several key considerations. First, it is important that the decision is not perceived as political since the goal here is to foster confidence in the electoral process, not diminish it. Second, the burden is on Walker to prove his case. KRS 118.176(3). Third, the standard for proving same is by preponderance of the evidence. The Court has reviewed decisions regarding residency for electoral purposes from around the country. A West Virginia case and a Virginia case seem to provide valuable guidance.13 The former is White v. Manchin, 318 S.E.2d 470 (W.Va. 1984). In that case, Charles Polan was declared ineligible as a candidate for the state Senate based on the judicial finding that he did not reside in the district he sought to represent. Mr. Polan was a principal in Polan Realty Company which owned several buildings in several areas of metropolitan Huntington. Although he owned a multistory residential building (The Pritchard) in Cabell County, he contended he actually lived in a Spartan second floor “sleeping quarters” of a commercial building he owned in Wayne County. The sleeping quarters were described as sparsely furnished and the bathroom was a public restroom down the hall from, and not connected to, the sleeping area. Conversely, the apartment in The Pritchard was far better furnished and Polan admitted to occasionally sleeping and entertaining there. All of these facts essentially parallel the proof regarding Mr. Thieneman’s circumstances. The opinion points out that because Polan is unmarried, “many of the normal indicia of residence are lacking at both places.” Id., at 485. Under West Virginia’s residency standard, Polan was found to not reside in Wayne County and thus his candidacy for
                                                            
 The Court wishes to acknowledge and thank the Division 4 staff attorney, Eric Darnell, and the State Law Librarian, Jennifer Frazier, for their excellent and expeditious research on legal issues presented herein.
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that senate district was denied. White is as close a case factually as one could hope to find to the case at bar and it supports Walker’s position. However, considerably more information seems to have been provided to the West Virginia courts than has been presented to this Court. The second case is Wilson v. Commonwealth, 2000 WL 527681 (Va. App. 2000).14 On April 11, 1997, Ms. Wilson sought to be placed on the ballot for the 51st District. When she was notified that her voter registration showed here residing in the 13th District, she submitted a new voter registration indicating she had moved to the 51st. She was subsequently prosecuted for election fraud based on her having in fact not moved until several months later. A jury convicted her of that crime and the appellate court upheld the conviction. The most significant evidence of Wilson’s fraud seems to have been utility bills from the two addresses which strongly suggested there had been no transfer of residency until well after Wilson swore she had moved. While this Court is compelled to decide this dispute “summarily and without delay” it is critical that it be resolved based on the Court’s review of all relevant evidence. As Walker points out, Kentucky law emphasizes consideration of objective factors. Mobley, supra., at 311. While the objective evidence tends to favor Walker, the testimony largely favors Thieneman. The Court believes the utility bills for the relevant period for both the Cliff View and the Fort Locks properties may well be the best evidence to guide the Court in weighing this conflicting proof. This will minimize any contention that the decision was based on politics. The previous residency dispute from this senatorial district demonstrates that the Court’s decision can be reached after the election. Stephenson v. Woodward, 182 S.W.3d 162 (Ky.

                                                            
 Because this is an unpublished opinion from the intermediate appellate court of a sister state, it holds little precedential weight. It is cited not for its holding but rather for the evidence presented on the residency issue.
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2005). While a decision before the election might be desirable, a correct decision is more important than a quick one, as both sides would no doubt agree.15 A final issue should perhaps be addressed. Given that Walker has the burden of proof, Thieneman might argue that if the Court needs more evidence, he must win. Such an argument fails for several reasons. First, the Court isn’t saying it can’t decide the case on the current evidence, much less that Walker would lose if it did so. It is simply saying there is potentially critical evidence available and the Court wants to consider it. Second, even if a ruling favorable to Mr. Thieneman was issued today, at least in theory, a new claim could be filed Monday alleging new evidence based on utility consumption. It seems better to avoid that unlikely but vexing scenario by addressing it in this case. Finally, a ‘summary’ proceeding is simplified in comparison to a ‘regular’ proceeding but that does not mean the Court cannot ask questions (as it did at the evidentiary hearing). The answer to this question is just going to take a little longer to answer.

                                                            
 The Court does not want to leave the misimpression that the lawyers have not done their jobs. To the contrary, both legal teams have engaged in exemplary advocacy. They have simply been under the gun regarding time. The Court also expresses its sincere appreciation that both sides have complied with KRS 118.176 (5).
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ORDER IT IS HEREBY ORDERED that a ruling on Mr. Walker’s motion is stayed until Walker and Thieneman are able to procure and produce to the Court, to the extent possible, the records of utility consumption at Thieneman’s “penthouse” condo on Brownsboro Road and his apartment above the office of Fort Locks Self Storage. The time frame in question would be June 2011 to present. The utilities in question would be water, power (LG&E), and telephone. IT IS FURTHER ORDERED that the Defendant Jefferson County Board of Elections shall not certify the results of the election of Senator for the 37th District until further order of this Court. This is an interlocutory order.

_____________________________________ CHARLES L. CUNNINGHAM, JR., JUDGE

xc:

Counsel of Record

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