Mississippi Advisory Opinions February 23, 2001: AGO 2001-0107 (February 23, 2001)

Advisory Opinion Text

John W. Davies, Esquire

Attorney for Town of Prentiss

Post Office Box 389

Prentiss, Mississippi 39474

Re: Residency of Candidate

Dear Mr. Davies:

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

I am legal counsel for the Town of Prentiss. During the Town's meeting for February it was brought to my attention one of our aldermen may not be able to run for re-election. At your earliest convenience please respond to the following questions.

One of the aldermen is going through a divorce. In the property agreement, his wife will receive possession of the home but he will remain co-owner with his wife. He will continue to pay 2 the monthly note as well as 2 of the maintenance. The house is in the town. Since the separation of the parties he has lived with his parents who reside out of town. If the divorce is granted prior to the qualification date and this alderman is still living with his parents, can he run for alderman?

What if, he states he intends to move back in town after the qualification deadline but before the date of election?

If the divorce is not granted until after the date of qualification but before the election and he still resides outside of town, can he be on the ballot?

The last scenario, if the divorce is not granted until after the election and he still resides outside of town, can he keep the position if he states he intends to establish residency in town.

There has been some discussion, if he is living outside the town when the divorce is granted, how much time should he be allowed to find residence within the municipal limits? If this is not done, when should the board of aldermen take action to vacate his seat?

In response to your inquiry please see the enclosed opinion addressed to Honorable Carl Mickens, dated June 15, 1995. In that opinion we said that it is the responsibility of the appropriate election commission or, in the case of a primary, the appropriate party executive committee, to make a factual determination on a case by case basis as to whether the candidate has abandoned the district as his place of residence or whether he is only temporarily away from his residence. Also, in that opinion we said that the general rule is that once residency is established, it continues until removal to another locality with the intent to remain there and abandonment of the old domicile without intent to return.

To assist the appropriate officials in making the required factual determination we offer the following.

If the alderman in question, as co-owner, is getting the benefit of homestead exemption on the home inside the corporate limits, it would create a rebuttable presumption that that is his residence for election purposes. Hinds County Election Commission v. Brinston, 671 So.2d 667 (Miss. 1996) .

We are also enclosing a copy of our opinion addressed to Essie Conaway et al., dated September 20, 1989 which sets forth certain guidelines from the Mississippi Supreme Court that should be followed in determining residency. Please note that the rule on homestead exemption as stated in that opinion has been modified by Brinston.

Sincerely,

Mike Moore, Attorney General

Phil Carter, Special Assistant Attorney General