Mississippi Advisory Opinions September 13, 1995: AGO 000010111 (September 13, 1995)

AGO 000010111.

Dear Mr. Gamble:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

"On behalf of the Lamar County Election Commission we would like to request an opinion from your office regarding the recent Democratic Primary Election for the Superintendent of Education for Lamar County. Questions have been presented to the Commission concerning the residency qualifications of the successful candidate.

The facts are as follows:

1. The candidate moved from Jones County, Mississippi to Lamar County, Mississippi on July 19, 1994, and applied to vote in Lamar County on July 19, 1994. A copy of the application is attached for your review.

2. Prior to moving to Lamar County on July 19, 1994, the candidate had held homestead exemption in Jones County. See attached.

3. The candidate qualified to run for the office of Superintendent of Education of Lamar County, Mississippi on January 13, 1995.

4. On August 4, 1995, the candidate and her husband renounced and rescinded their homestead exemption in Jones County for the tax year 1995. See attached letter.

5. The candidate won the August 8, 1995, primary and is now unopposed in the general election.

Did this candidate meet the residency requirements for qualifying for the Office of Superintendent of Education?

As you know it is the Election Commission's responsibility to place the candidate's name on the ballot in the general election. Please advise us regarding this matter at your earliest convenience. Should you have any questions, please do not hesitate to contact me."

We preface our response by stating that whether a particular candidate for a county office in the November 7, 1995 General Election meets the residence requirements is a question of fact which must be determined by the county election commission. However, we understand that the question of law that is an issue in making that determination is whether an application for homestead exemption in Jones County which was rescinded by the candidate in question on August 4, 1995 prevents her from being a candidate for the office of Lamar County Superintendent of Education. The candidate received tax benefits on her Jones County property for the year 1994. The 1994 taxes being paid by said candidate in 1995.

The issue in Gadd v. Thompson, 517 So. 2d 576, (Miss. 1987) is similar to the one raised in your letter. Jack Gadd qualified as a candidate in the 1987 Democratic Primary for the District Thirteen seat in the Mississippi Legislature which includes Benton County but does not include Lafayette County. Gadd received a majority of the votes cast in the first primary.

The facts in Gadd pertinent to this opinion are summarized as follows:

1. Mr. Gadd and his wife were long time residents of Benton County.

2. In August, 1985, Gadd was hired as an assistant women's basketball coach at Ole Miss.

3. Mr. Gadd bought a house in Oxford and moved into the house in January, 1986 but remained on the voter rolls in Benton County.

4. On March 13, 1986, Gadd's wife filed for homestead exemption in Lafayette County.

5. The Gadds received the benefits of homestead exemption on their Oxford residence for the year 1986.

6. The Gadds repaid the amount credited to them under the homestead exemption.

In Gadd the Court said:

"Article 4, Section 41 of the Mississippi Constitution provides in part:

No person shall be a member of the House of Representatives ... who shall not have been a resident citizen of the State four years and of the county two years, immediately preceding his election.

This Court has consistently held that for election purposes, residency and domicile are synonymous in Mississippi. (citations) Therefore, the key issue in this appeal is whether or not Gadd's filing for homestead exemption in Oxford created his domicile there.

Our definition of domicile was handed down in 1943. In order to be an actual bona fide resident of a county, 'there must have been (1) an actual residence voluntarily established in said county, (2) with the bona fide intention or remaining there, if not permanently, at least indefinitely.' (citations) Thus, in the case at bar, the important question is whether filing for homestead exemption establishes Gadd's animus manendi. Is the homestead exemption conclusive evidence that Gadd intended to remain in Lafayette County indefinitely? (citation)

...

We hold as a matter of law that the filing of a homestead exemption conclusively establishes domicile for electoral purposes in the county of filing, regardless of circumstances indicating that certain ties to other counties still exist.

...

It must be remembered that Gadd did not refund his credit until after he had received it; his case would be much stronger if he had rescinded his application before receiving the benefit of it."

We understand the Court's ruling in Gadd to be that once an individual files for homestead exemption in a particular county, that conclusively establishes residency in that county for electoral purposes for an indefinite period. However, the Court did not, in our opinion, hold that a homestead exemption application on file in a particular county in January of a particular year precludes an individual from establishing residence in another county and being a candidate for public office in that county.

As pointed out by the Court in Gadd one must be a resident of the county (or district) he seeks to serve for the two years immediately preceding his election to the Mississippi House of Representatives. In contrast, the office of County Superintendent of Education sought by the candidate now in question only requires that one be a qualified elector and meet certain other basic requirements. To be a qualified elector of a county one must reside in that county for a period of only thirty days. See MCA, Section 23-15-11. Gadd received the benefits of homestead exemption in Lafayette County for the year 1986. He received no benefits for the year 1987. The Court ruled that the filing for homestead exemption in 1986 conclusively established Gadd's residence in Lafayette County. The Court noted that Gadd's case would have been much stronger if he had rescinded his application before receiving the benefit of it. This, obviously, is referring to the benefit he received for the year 1986.

The instant case is distinguishable in another respect. When Gadd applied for homestead exemption in Lafayette County in 1986 it conclusively established his residence there and effectively prevented him from being a resident of House District Thirteen for the two years immediately preceding the election as required by Section 41, Mississippi Constitution of 1890. The candidate now in question, according to the facts set forth in your letter, moved from the county in which she had applied for homestead exemption to Lamar County on July 19, 1994 and rescinded her application for homestead exemption in Jones County on August 4, 1995 prior to receiving any benefits for calendar year 1995. As previously state, the only residency requirement to hold the office she seeks is thirty days. We have long held to the proposition that all qualifications required of a candidate for public office are required to be met at the time such candidate is elected (at the 1995 November General Election). Please see the enclosed copy of an opinion addressed to Mrs. Lorena Dean, dated September 20, 1979.

In response to your question, we again state that the determination of residency is a question of fact which must be made by the Lamar County Election Commission. However, based on the facts and legal authorities stated and cited above, it is our opinion that the candidate in question is not disqualified as a candidate in the 1995 Lamar County General Election by virtue of having applied for and received homestead exemption benefits in Jones County for calendar year 1994, even though that application was not rescinded until August 4, 1995.

Sincerely,

MIKE MOORE ATTORNEY GENERAL

By:

Phil Carter Special Assistant Attorney General

PC:sm Enclosure