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Memorandum

MATHIAS H. HECK, JR.

Prosecuting Attorney

To: Vidor T. WhIsman I From: Nolan Thomas

1

Subject: "Residence" and the reading of

II Date: November 14, 2008
R.C. 3503.02

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
,~pp,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 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."
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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.)
F~B Cj 200) OH5 P 4

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.