Mississippi Advisory Opinions September 28, 2012: No. 2012-00452 (September 28, 2012)

No. 2012-00452.

Dear Representative Flaggs:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

You state that the special charter of the City of Vicksburg (the City) requires one to be a resident of the City for a minimum of two (2) years in order to be a candidate for the office of mayor. You then set forth certain factors that describe your residency within the City and seek our opinion on whether those factors satisfy the proper residence requirements to run for the office of mayor.

Pursuant to Mississippi Code Annotated Section 7-5-25 (Revised 2002) the Attorney General is restricted to issuing official opinions on questions of law. The question of whether one meets the residency requirements to be a candidate for public office is one of fact which can only be answered by the appropriate election officials subject to judicial review. In making those factual determinations there are certain guidelines laid down by the courts that should be considered. They are as follows:

1. Residency and domicile under the election laws are synonymous. Hubbard v. McKey, (1966);

2. Domicile, once established, continues until removal to another locality with intent to remain there and abandonment of the old domicile without intent to return. Hubbard, supra;

3. The foundation of domicile is intent. This intention may be established by physical presence, declaration of intent, and all relevant facts and circumstances, and in this connection it has been held that the declarations of the party himself are most important. Stubbs v. Stubbs, (1968);

4. In the absence of any avowed intention, and of acts which indicate a contrary intention, a long continued residence is regarded as a controlling circumstance in determining the question of domicile. In most cases it is unavoidably conclusive. Stubbs, supra;

5. Ownership of property, whether real or personal, in the county (or municipality) is not an indispensable requirement to establishing domicile or permanent residence thereon or the continuation of such domicile and permanent residence once established. Stubbs, supra;

6. Long continued residence is controlling and conclusive in determining the question of domicile in the absence of any avowed intention, and of acts which indicate a contrary intention. Stubbs, supra;

7. Residence in fact, coupled with the purpose to make the place of residence one's home, are the essential elements of domicile. Texas v. Florida, , 83 L.Ed. 817 (1939);

8.The intention to make a home must be an unqualified one, not conditional on the happening of a future event. Jones v. State, , (1949);

9. Domicile is not determined by the fact of residence alone, but actual residence in a place is a circumstance which tends to prove domicile in that place; it is prima facie evidence of domicile. The fact that a person stays at a place may be explained, however, and the presumption of domicile arising therefrom rebutted. Cheek v. Fortune, 341 F.Supp 729 (N.D.Miss., 1972);

10. In determining domicile one's statements of intent are entitled to little weight when in conflict with the facts. Cheek, supra; and

11. If one has filed for homestead exemption it creates a strong but rebuttable presumption that the property on which the homestead exemption is claimed is one's residence for election purposes. Hinds County Election Commission v. Brinston , (Miss. 1996)

In regard to the two (2) year residency requirement, Section 21-15-2 (Chapter 590, Laws of 2002) was effectuated pursuant to the Voting Rights Act on July 22, 2002 and amended by Chapter 455, Laws of 2003 which clarified that its provisions are applicable to special charter municipalities and was effectuated on June 9, 2003. It provides:

No municipality, including municipalities operating under a charter city, code charter or special charter, shall impose any additional requirements on holding any municipal elective office or receiving compensation for any elective office except as may be provided by law.

The general rule is that legislation is deemed to operate prospectively unless it is clearly stated or can be clearly inferred that it is given retroactive effect. Klass v. Continental Southern Lines, (1955); MS AG Op., O'Donnell (August 22, 2008); MS AG Op., Ross (May 1, 2012).

It is our understanding that the two (2) year residency requirement to hold the office of mayor predates the enactment of Section 21-15-2.

Nevertheless, the operative wording of the statute is that no municipality shall " impose " any additional requirements to holding elective office. Impose means " to establish or apply as compulsory .... b. to establish or make prevail by force ." Merriam Webster's New Collegiate Dictionary, 1974 ed. (Emphasis added).

Thus, Section 21-15-2 prohibits not only the establishment or enactment of additional requirements beyond what is provided by law, but also prohibits the enforcement of any such requirements. Therefore, the city may not enforce a two-year residency requirement and the proper residency requirement would be thirty days in accordance with Section 23-15-11 of the Code.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General