Alabama Advisory Opinions May 17, 2000: AGO 2000-146 (May 17, 2000)

AGO 2000-146.

Dear Representative Allen:

This opinion of the Attorney General is issued in response to your request. QUESTIONS

1. Is taxpayer Paul Sullivan eligible to seek the Republican nomination in School District 3 of the Tuscaloosa County Board of Education if it is his intent to establish permanent residency in District 3 before the General Election on November 7, 2000?

2. Does Paul Sullivan meet the residency requirement of section 16-8-1(b) of the Code of Alabama?

According to the facts presented to this Office, Mr. Paul Sullivan physically lives in a home located in Tuscaloosa County School Board District 2. Mr. Sullivan has lived in that home and voted in District 2 for the past several years. Mr. Sullivan owns a family home place, a house where he and his brothers and sisters were born, which is clearly located in District 3. The house has electrical and water connections and is presently used by members of the family as a hunting house. Mr. Sullivan has recently stated that he plans to renovate the house and live there on a permanent basis. Based upon this intention to move into the house located in District 3, Mr. Sullivan wishes to run for a seat on the school board in District 3.

A county school board member must be a resident of the district he represents, and "residency shall have been established at least one year before the general election at which the candidate is to be elected." ALA. CODE § 16-8-1 (1995).

The term "residency," when used in connection with political rights, is synonymous with "domicile." Harris v. McKenzie, 703 So. 2d 309 (Ala. 1997); Mitchell v. Kinney , 242 Ala. 196, 5 So. 2d 788 (1942). To establish a domicile, an individual must establish residence with the intention to remain permanently or for an unlimited time. Osborn v. O'Barr , 401 So. 2d 773 (Ala. 1981). With respect to the residency of a voter, the Alabama Supreme Court has stated:

A voter having acquired a legal residence, been duly registered as a voter of the county and precinct or ward . . . may retain such residence until he has abandoned and removed therefrom with the intent to become a resident elsewhere. Temporary absence from one's residence for the purposes of his employment and the like, without the intent to abandon the home town and acquire a domicile elsewhere permanently, or for an indefinite time, does not forfeit his right to vote. Jacobs v. Ryals, 401 So. 2d 776, 778 (Ala. 1981) (quoting Wilkerson v. Lee , 236 Ala. 104, 181 So. 296 (1938)).

The question presented here is whether Mr. Sullivan has established a residence in District 3 and whether he has done so one year before the general election in which he intends to be a candidate. A candidate does not acquire a legal residence merely by stating an intention to reside in a particular home or district. A candidate must have a physical presence in the district, as well as the intention to reside in the district.

Whether Mr. Sullivan may be a candidate in the Republican Primary is a matter that must be determined by the county Republican Executive Committee, which has the authority to hear pre-primary challenges to the legal qualifications of its candidates. Knight v. Gray , 420 So. 2d 247 (Ala. 1982); Perloff v. Edington, 302 So. 2d 92 (Ala. 1974). The committee has a responsibility to ensure that only qualified candidates are certified to be placed on the ballot. ALA. CODE § 17-16-12 (1995); Opinion to Honorable Mike Bolin, Probate Judge, Jefferson County, dated April 12, 1996, A. G. No. 96-00183.

Based solely upon the facts presented here, it appears that Mr. Sullivan is not a resident of District 3. This Office does not make findings of fact, and there may be additional facts that would affect the determination of Mr. Sullivan's residency. The county executive committee should initially make this determination.

This opinion is distinguishable from the conclusion reached in the opinion to Honorable Raymond E. Ward, Attorney for Tuscaloosa County Board of Education, dated March 20, 2000, A. G. No. 2000-109, concerning the residency of Mr. Rick Harbin. In the Ward opinion, based upon the facts presented, including the fact that Mr. Harbin had been misinformed by the county Board of Registrars that his temporary house was in District 3, this Office found that Mr. Harbin had established a residence in District 3 and that he had not abandoned that residence by moving, based on misinformation, to a home in another district.

Political parties have the authority to hear pre-primary challenges to the legal qualifications of their candidates and must ensure that only qualified candidates are certified to appear on the ballot.

A candidate does not acquire a legal residence merely by stating an intention to reside in a particular home or district. A candidate must have a physical presence in the district, as well as the intention to reside in the district.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

22516v3/15554