Mississippi Advisory Opinions January 19, 1996: AGO 96-0006 (January 19, 1996)

Advisory Opinion Text

Charles E. Johnson

Superintendent of Education

Wilkinson County

Post Office Box 785

Woodville, Mississippi 39669

Re: Legality of an elected official living in another state

Dear Mr. Johnson:

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

Is it legal for an individual, who has been elected to serve as a school board member in this state, to operate a business and live in another state and still keep his/her position on the school board?

Section 37-5-1(1) of the Mississippi Code Annotated states:

There is hereby established a county board of education in each county of the State of Mississippi. Said county board of education shall consist of five (5) members, one (1) of which, subject to the further provisions of this chapter and except as is otherwise provided in Section 37-5-1(2), shall be elected by the qualified electors of each supervisors district of the county. Except as is otherwise provided in Section 37-5-3, each member so elected shall be a resident and qualified elector of the district from which he is elected.

Section 37-5-3 states that no one who is a resident of the territory within a municipal separate school district or a special municipal separate school district is eligible to be a member of the county board of education.

We have previously opined that the question of whether an official has “removed” out of the jurisdiction for which he or she was elected or appointed is one of fact. See the prior opinion to Mayor Mike Thomas, dated February 4, 1992; see also Hon. Bernard Handy, dated July 29. 1981, attached. The Mississippi Supreme Court in Hubbard v. McKey , 193 So.2d 129 (Miss. 1966) held that domicile, once established, continues until removal to another locality with intent to remain there and abandonment of the old domicile without intent to return. See generally the prior opinion to Hon. Neola Hutto, dated July 10. 1991, attached.

The remaining members of the school board are responsible for making a factual determination of whether the school board member has abandoned his or her district or is only temporarily away. The school board's findings would not preclude a legal challenge to this matter. See the prior opinion to Alderman Brian Barcellona, dated April 13, 1994, attached.

If this office can be of any further assistance, please let us know.

Very truly yours,

Mike Moore, Attorney General.

Sandra M. Shelson, Special Assistant Attorney General.

State of Mississippi

February 4, 1992

Mayor Mike Thomas

City of Horn Lake

2285 Goodman Road

Horn Lake, Mississippi 38637

Dear Mayor Thomas:

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

“I am currently serving as Mayor for the City of Horn Lake. I am in the process of selling my current home and building a new home inside the city of Horn Lake corporate boundaries. There will be a period of time in which I will need to rent a home until my new home is completed. My question is: ‘Can I rent a home outside the corporate limits of the city of Horn Lake until my new home is completed without vacating my official position or must I rent inside the corporate limits, please bear in mind that I will be remaining inside DeSoto County.”’

Mississippi Code Annotated Sec. 25-1-59 (Revised 1991) provides in part:

“If any.... municipal officer during the term of his office shall remove out of the.... municipality for which he was elected or appointed, such office shall thereby become vacant and the vacancy be supplied as by law directed. ...”

The question of whether an official has “removed” out of the jurisdiction for which he was elected or appointed is, of course, one of fact. The municipal election commission has the responsibility to make the factual determination as to whether a qualified elector has abandoned the municipality as his place of residence or whether he is only temporarily away from his residence. If the commission removes an elected official's name from the registration list he would no longer be a registered voter and his office would be vacated. The commission's actions would, of course, be subject to review by the courts. We are enclosing a copy of an opinion addressed to Honorable Neola Hutto, dated July 10, 1991 which sets forth the guidelines for determining residency as set down by the Mississippi Supreme Court. As you will see, the general rule is that 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 v. McKey, 193 So.2d 129 (1966). However, the findings of the municipal election commission are not conclusive in this matter and would not preclude a legal challenge to your right to continue to hold the office in question.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.

Office of the Attorney General.

State of Mississippi

July 29, 1981

Honorable Bernard Handy

Election Commissioner, Quitman County

Route 2, Box 205

Sledge, Mississippi 38670

Dear Mr. Handy:

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

Your letter states as follows:

“I am Bernard Handy, Election Commissioner for Beat One of Quitman County, Mississippi. Our commission has been having problems deciding if a particular family who claims to reside in Sledge, Beat One, Quitman County, Mississippi. But I know for a fact that this family lives in Memphis, Tennessee. His family use to live in Sledge, Mississippi, but he moved to Memphis and has lived there for over five years. He owns a gas company in Sledge, which he holds that his ownership entitles him to vote in Quitman County. He claims that he will move back at some point in time but no one knows when.

“The rest of the commission wants to let him stay on the voting rolls, but as I see it, he does not reside in the county, nor even the state. If we let him register, then people who use to live here and pay taxes can vote.

“I am requesting a decision from your office on this matter. Please advise us of your decision.”

We preface our response to your inquiry by stating that the residence qualification is a factual determination to be made by the Quitman County Board of Election Commissioners, based upon all surrounding facts and circumstances indicating any outward manifestation of intent which is the foundation of the residence requirement.

This office previously responded to a question similar to yours in an opinion dated April 13, 1971, addressed to Mrs. Ethel C. Madison and signed by Assistant Attorney General W. D. Coleman.

The following guidelines are taken directly from that opinion and should be considered by the board in making the factual determination of residency.

“The Mississippi Supreme Court in the case of Hubbard v. McKey , 193 So.2d 129, at page 132 (1966) held in an election contest that:

“‘Domicile, once established, continues until removal to another locality with intent to remain there and abandonment of the old domicile without intent to return.’

“citing Jones v. State , 207 Miss. 208, 42 So.2d 123 (1949); Smith v. Deere , 195 Miss. 502, 16 So.2d 33 (1943); May v. May , 158 Miss. 68, 130 So. 52 (1932) .

“The opinion in Hubbard v. McKey , supra, also held:

“‘Residency and domicile under our election laws are synonymous.’

“It was stated by our Supreme Court in the case of Stubbs v. Stubbs , 211 So.2d 821 (1968) that:

“‘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.’

“The court opinion in Stubbs v. Stubbs , supra, also quoted from the former opinion in Hairston v. Hairston , 27 Miss. 704 (1854):

“‘From the nature of the subject, it is impracticable to lay down any very definite rule by which either the fact of a permanent residence, or the intention of permanent residence, is to be ascertained . . . in all cases, the question whether a person has or has not acquired a domicile, must depend mainly upon his actual, or presumed intention. . . . As a domicile may be acquired by a longer or shorter residence, depending upon the circumstances of the case, its true basis and foundation must be the intention . . . . The apparent or avowed intention of residence, not the manner of it , constitutes domicile.’ (Emphasis added) “The court in Stubbs v. Stubbs , supra, continued to quote from Hairston v. Hairston , supra, as follows:

“‘ 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.’

“Ownership of property, whether real or personal, in [the] county is not an indispensable requirement to establishing domicile or permanent residence thereon or the continuation of such domicile and permanent residence once established.

“It is clear from the above and foregoing quoted holding of the Mississippi Supreme Court that 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, . . .”’

If this office can be of benefit in the future, please do not hesitate to contact us.

Very truly yours,

Bill Allain Attorney General.

Phillip C. Carter Special Assistant Attorney General.

July 22, 1981

Honorable William Allain

Attorney General for the State of Mississippi

Jackson, MS 39205

RE: Voting Division

Dear Sir:

I am Bernard Handy, Election Commissioner for Beat One of Quitman County, Mississippi. Our commission has been having problems deciding if a particular family who claims to reside in Sledge, Beat One, Quitman County, Mississippi. But I know for a fact that this family lives in Memphis, Tennessee. His family use to live in Sledge, Mississippi, but he moved to Memphis and has lived there for over five years. He owns a gas company in Sledge, which he holds that this ownership entitles him to vote in Quitman County. He claims that he will move back at some point in time but no one knows when.

The rest of the commission wants to let him stay on the voting rolls, but as I see it, he does not reside in the county, nor even the state. If we let him register, then people who use to live here and pay taxes can vote.

I am requesting a decision from your office on this matter. Please advise us of your decision. Thank you for your prompt consideration in this matter.

Sincerely

Bernard Handy Election Commissioner of Quitman County

Office of the Attorney General.

State of Mississippi

July 10, 1991

Honorable Neola Hutto

Election Commissioner

Post Office Box 428

Waynesboro, Mississippi 39367

Dear Ms. Hutto:

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

“Is it legal to purge names of known persons who have moved from the county but has not signed a cancellation form or registered in another county or state?”

Mississippi Code Annotated § 23-15-153 (1972) provides in part:

“(1) At the following times the commissioners of election shall meet at the office of the registrar and carefully revise the registration books and the pollbooks of the several voting precincts, and shall erase therefrom the names of all persons erroneously thereon, or who have died, removed or become disqualified as electors from any cause ; ....” (emphasis added)

In response to your inquiry, once a county election commission has made the factual determination that a voter has “removed” himself from his county of registration, said commission has the statutory duty and obligation to remove that voter's name from the registration books and pollbooks regardless of whether he has signed a cancellation form or registered in another county or state. In making these factual determinations as to residency, the guidelines set forth in the attached opinion addressed to Ms. Essie Conaway, et al. , dated September 20, 1989 should be followed.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.

Office of the Attorney General

State of Mississippi

September 20, 1989

Ms. Essie Conaway

Ms. Shirley Kennedy

Ms. Josephine Strickland

Municipal Election Commissioners

Post Office Box 160

Burnsville, Mississippi 38833

Dear Commissioners:

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

“The election commission of the special election for the city of Burnsville would like a ruling and/or opinion of who is considered a legal resident of said city.

We realize that common sense should rule, that in order to be a legal resident you must reside inside the city limits, but during an election common sense seems to be in short supply. We know it is too late for this election, but we will need the same information next spring when the mayor and alderman election is held, maybe even more so.

We are already seeing people registered, giving other peoples addresses saying they eat and sleep there, so therefore they are eligible to vote in the coming election. Is this sufficient for establishing a legal residence? If a person has two homes, one inside the city the other outside and they have the water and lights cut off the home inside the city and move to the home outside the city, can they still vote in the city elections, legally that is.

If a person is drawing a check for being mentally incapable of working can they be legally qualified to hold a public office?”

In response to your questions concerning residency we are enclosing copies to two (2) former opinions of this office addressed to Honorable Jerry M. Gilbreath, dated January 5, 1978 and Honorable Bernard Handy, dated July 29, 1981 respectively and the attachments thereto. In summary those opinions state that it is the responsibility of the appropriate election commission to make the factual determinations on questions of residency on a case by case basis and sets forth certain guidelines laid down by the courts that should be considered in making each such determination. The guidelines are as follows:

1. Residency and domicile under the election laws are synonymous. Hubbard v. McKey , 193 So.2d 129 (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% u;

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 , 211 So.2d 821 (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% u;

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% u;

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% u;

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 , 306 U.S. 398, 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 , 207 Miss. 208, 42 So.2d 123 (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 a 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); and

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

In addition to the guidelines listed above, the Mississippi Supreme Court has held that as a matter of law, the filing for 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. Gadd v. Thompson , 517 So.2d 576 (1987); Hollowell v. Vandevender , 358 So.2d 1328 (1978) .

In response to your question concerning an individual who is mentally incapable of working and whether or not he is eligible to hold public office, please see the enclosed copy of an opinion addressed to Honorable W.C. “Buck” Rogers, Jr., dated August 9, 1989. In summary that opinion states that in order for one to be disqualified from voting (and consequently holding public office) he must have been judicially determined to be insane.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.

Office of the Attorney General

State of Mississippi

July 29, 1981

Honorable Bernard Handy

Election Commissioner, Quitman County

Route 2, Box 205

Sledge, Mississippi 38670

Dear Mr. Handy:

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

Your letter states as follows:

“I am Bernard Handy, Election Commissioner for Beat One of Quitman County, Mississippi. Our commission has been having problems deciding if a particular family who claims to reside in Sledge, Beat One, Quitman County, Mississippi. But I know for a fact that this family lives in Memphis, Tennessee. His family use to live in Sledge, Mississippi, but he moved to Memphis and has lived there for over five years. He owns a gas company in Sledge, which he holds that his ownership entitles him to vote in Quitman County. He claims that he will move back at some point in time but no one knows when.

“The rest of the commission wants to let him stay on the voting rolls, but as I see it, he does not reside in the county, nor even the state. If we let him register, then people who use to live here and pay taxes can vote.

“I am requesting a decision from your office on this matter. Please advise us of your decision.”

We preface our response to your inquiry by stating that the residence qualification is a factual determination to be made by the Quitman County Board of Election Commissioners, based upon all surrounding facts and circumstances indicating any outward manifestation of intent which is the foundation of the residence requirement.

This office previously responded to a question similar to yours in an opinion dated April 13, 1971, addressed to Mrs. Ethel C. Madison and signed by Assistant Attorney General W. D. Coleman.

The following guidelines are taken directly from that opinion and should be considered by the board in making the factual determination of residency.

“The Mississippi Supreme Court in the case of Hubbard v. McKey , 193 So.2d 129, at page 132 (1966) held in an election contest that:

“‘Domicile, once established, continues until removal to another locality with intent to remain there and abandonment of the old domicile without intent to return.’

“citing Jones v. State , 207 Miss. 208, 42 So.2d 123 (1949); Smith v. Deere , 195 Miss. 502, 16 So.2d 33 (1943); May v. May , 158 Miss. 68, 130 So. 52 (1932) .

“The opinion in Hubbard v. McKey , supra, also held:

“‘Residency and domicile under our election laws are synonymous.’

“It was stated by our Supreme Court in the case of Stubbs v. Stubbs , 211 So.2d 821 (1968) that:

“‘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.’

“The court opinion in Stubbs v. Stubbs , supra, also quoted from the former opinion in Hairston v. Hairston , 27 Miss. 704 (1854):

“‘From the nature of the subject, it is impracticable to lay down any very definite rule by which either the fact of a permanent residence, or the intention of permanent residence, is to be ascertained . . . in all cases, the question whether a person has or has not acquired a domicile, must depend mainly upon his actual, or presumed intention. . . . As a domicile may be acquired by a longer or shorter residence, depending upon the circumstances of the case, its true basis and foundation must be the intention . . . . The apparent or avowed intention of residence, not the manner of it , constitutes domicile.’ (Emphasis added)

“The court in Stubbs v. Stubbs , supra, continued to quote from Hairston v. Hairston , supra, as follows:

“‘ 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.’

“Ownership of property, whether real or personal, in [the] county is not an indispensable requirement to establishing domicile or permanent residence thereon or the continuation of such domicile and permanent residence once established.

“It is clear from the above and foregoing quoted holding of the Mississippi Supreme Court that 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, . . .”’

If this office can be of benefit in the future, please do not hesitate to contact us.

Very truly yours,

Bill Allain Attorney General.

Phillip C. Carter Special Assistant Attorney General.

Office of the Attorney General

State of Mississippi

April 13, 1994

Alderman Brian Barcellona

City of Ridgeland

108 Brookhill Cove

Ridgeland, MS 39157

Re: Residency Requirements

Dear Alderman Barcellona:

Attorney General Mike Moore has received your request for an official opinion from this office and has assigned it to me for research and reply. In your letter you state:

I presently serve as alderman from Ward 3 in Ridgeland. Ridgeland is a code charter municipality. As required by statute I reside in my ward.

I am planning to build a new house within my existing ward. Before I do so I need to complete the sale of my existing home. There may be an interval during which I will require temporary housing. I fully intend to remain a resident of my ward. I request your official opinion as to what steps I must take to maintain my residency after the sale of my present home.

1. In view of my intent to remain a resident must my temporary housing be within my ward. (I would not consider temporary housing outside the city, but have some concern as to its availability within my ward)?

2. What, if any, time limits would I face on temporary housing?

Please see our prior opinions dated February 4, 1992 to Mayor Mike Thomas and July 10, 1991 to Honorable Neola Hutto. In summary, those opinions hold that Mississippi Code Section 25-1-59 governs this area. That Section provides in part:

If any ... municipal officer during the term of his office shall remove out of the ... municipality for which he was elected or appointed, such office shall thereby become vacant and the vacancy be supplied as by law directed ...”

The question of whether an official has “removed” out of the jurisdiction for which he was elected or appointed is, of course, one of fact. The municipal governing board has the responsibility to make the factual determination as to whether an officer has abandoned the municipality as his place of residence or whether he is only temporarily away from his residence. However, the findings of the municipal board are not conclusive in this matter and would not preclude a legal challenge to your right to continue to hold the office in question.

If I may be of further assistance, please do not hesitate to contact me.

Sincerely,

Mike Moore Attorney General.

Phil Carter Assistant Attorney General.

Computer Generated Copy From The Mississippi

Attorney General Opinions Database

February 04, 1992

Mayor Mike Thomas

City of Horn Lake

2285 Goodman Road

Horn Lake, Mississippi 38637

Dear Mayor Thomas:

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

“I am currently serving as Mayor for the City of Horn Lake. I am in the process of selling my current home and building a new home inside the city of Horn Lake corporate boundaries. There will be a period of time in which I will need to rent a home until my new home is completed. My question is:

‘Can I rent a home outside the corporate limits of the city of Horn Lake until my new home is completed without vacating my official position or must I rent inside the corporate limits, please bear in mind that I will be remaining inside DeSoto County.”’

Mississippi Code Annotated Section 25-1-59 (Revised 1991) provides in part:

“If any .... municipal officer during the term of his office shall remove out of the .... municipality for which he was elected or appointed, such office shall thereby become vacant and the vacancy be supplied as by law directed. ...”

The question of whether an official has “removed” out of the jurisdiction for which he was elected or appointed is, of course, one of fact. The municipal election commission has the responsibility to make the factual determination as to whether a qualified elector has abandoned the municipality as his place of residence or whether he is only temporarily away from his residence. If the commission removes an elected official's name from the registration list he would no longer be a registered voter and his office would be vacated. The commission's actions would, of course, be subject to review by the courts. We are enclosing a copy of an opinion addressed to Honorable Neola Hutto, dated July 10, 1991 which sets forth the guidelines for determining residency as set down by the Mississippi Supreme Court. As you will see, the general rule is that 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 v. McKey, 193 So.2d 129 (1966) . However, the findings of the municipal election commission are not conclusive in this matter and would not preclude a legal challenge to your right to continue to hold the office in question.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.

Computer Generated Copy from the Mississippi

Attorney General Opinions Database

July 10, 1991

Honorable Neola Hutto

Election Commissioner

Post Office Box 428

Waynesboro, Mississippi 39367

Dear Ms. Hutto:

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

“Is it legal to purge names of known persons who have moved from the county but has not signed a cancellation form or registered in another county or state?”

Mississippi Code Annotated upon 23-15-153 (1972) provides in part:

“(1) At the following times the commissioners of election shall meet at the office of the registrar and carefully revise the registration books and the pollbooks of the several voting precincts, and shall erase therefrom the names of all persons erroneously thereon, or who have died, removed or become disqualified as electors from any cause; ....” (emphasis added)

In response to your inquiry, once a county election commission has made the factual determination that a voter has “removed” himself from his county of registration, said commission has the statutory duty and obligation to remove that voter's name from the registration books and pollbooks regardless of whether he has signed a cancellation form or registered in another county or state. In making these factual determinations as to residency, the guidelines set forth in the attached opinion addressed to Ms. Essie Conaway, et al., dated September 20, 1989 should be followed.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.