Oregon Advisory Opinions February 21, 1966: OAG 66-25 (February 21, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-25.

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359

Serviceman whether stationed on or off a military base in Oregon may establish an Oregon domicile for any purpose including registering to vote by a clear showing of intent to become an Oregon domiciliary.

You state:

"A serviceman formerly a resident of another state is serving in Oregon. He is living on a military reservation. He has decided to make Oregon his permanent residence. He pays Oregon State income tax. His car is registered with the Oregon State Department of Motor Vehicles. In his military records he shows Oregon as his permanent residence. He also wishes to register and vote."

"May an individual as described above register and vote as provided in the general election laws of this state?"

Servicemen stationed in Oregon are the subject of Article II, § 5, Oregon Constitution, reading:

"No soldier, seaman, or marine in the Army, or Navy of the United States, or of their allies, shall be deemed to have acquired a residence in the state, in consequence of having been stationed within the same; nor shall any such soldier, seaman, or marine have the right to vote."

Zimmerman v. Zimmerman, (1945) 175 Or. 585, 155 P. (2d) 293, construed the word "deemed" in § 5 as creating a disputable presumption leaving a serviceman free if he has the requisite intent and lives in Oregon on a military reservation, to establish an Oregon residence, a word used interchangeably by the court (at p. 603) with domicile.

Turning to Oregon's election laws, electors are defined by Article II, § 2, Oregon Constitution, as here material reading:

"(1) Every citizen of the United States is entitled to vote in all elections * * * if such citizen:

"(b) Has resided in this state during the six months immediately preceding the election * * *

"(c) Is registered prior to the election * * *." (Emphasis supplied)

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360

"* * * register * * * any qualified elector who personally appears [before an election official] * * * and requests to be registered." (Emphasis supplied)

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453

We have seen that the court equated "residence" and "domicile" in Zimmerman for the purposes of Article II, § 5. This also applies to Article II, § 2, for the reason as stated in Opinions of the Attorney General, 1962-1964, pp. 463-464:

"Ordinarily where residence is made a qualification for the enjoyment of a privilege, residence and domicile are considered as synonymous. * * *"

Returning to the acquisition of Oregon domicile by a serviceman, Volmer v. Volmer, (1962) 231 Or. 57, 371 P. (2d) 70, goes further than Zimmerman by holding this can be accomplished whether he lives on or off an Oregon military post (at p. 61):

"The capacity of a member of the armed forces to acquire a new domicile during a tour of military duty has been recognized in this state. Zimmerman v. Zimmerman, 175 Or at 607. The husband in the case at bar could have acquired a domicile in Oregon at any time during his tour of duty here if he formed the requisite intent to do so. Zimmerman v. Zimmerman, supra at 591-593; Restatement, Conflict of Laws §§ 15-16, 18-21 (1934). In the case of a soldier ordered to a post in this state, however, the fact of residence here, standing alone, whether he lives on or off the military post, is not evidence of the intent necessary for the acquisition of a new domicile. Zimmerman v. Zimmerman, supra (government quarters); Beasley v. Beasley, 93 NH 447, 43 A2d 154 (1945) (apparently private quarters). * * *

"Further, the ordinary conduct of a person residing in this state incident to a military assignment here does not constitute sufficient evidence of the necessary domiciliary intent. To be relevant, conduct must be probative of intent, and not merely an incident of living in a given place. * * *" (Emphasis supplied)

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360

As the first paragraph of the above extract states, there are two requisites for a domicile change to Oregon: Actual presence and intent. One of the facts you have given us not present in Volmer is that his military record has been changed to Oregon by affirmative act of the serviceman. This change of residence on the individual's military record is an additional fact to be considered on the question of intent to establish Oregon residence because upon release from active duty a serviceman would be relinquishing a valuable right given him by law, that is, transportation costs to his home. 37 U.S.C., § 204 (e).

Though holding that a serviceman is free if he has the requisite intent to establish an Oregon domicile, Zimmerman (175 Or. at 604) said that it was not "wholly free from doubt" whether such domicile would be for all purposes including voting. That doubt has been removed by Carrington v. Rash, (1965) 380 U. S. 89, 94, 13 L. Ed. (2d) 675. Carrington involved a Texas constitutional provision which, as construed by the Texas Supreme Court, prevented a serviceman who changed his domicile to Texas during his military duty there from voting in Texas while in the armed forces. Holding this to be a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the Supreme Court said (380 U.S. at 96-97):

"We deal here with matters close to the core of our constitutional system. 'The right . . . to choose,' [citing case] that this Court has been so zealous to protect, means, at the least, that States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the state. [citing case] By forbidding a soldier ever to controvert the presumption of nonresidence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment. '[T]here is no indication in the Constitution that . . . occupation affords a permissible basis for distinguishing between qualified voters within the state.' [citing case]

"We recognize that special problems may be involved in determining whether servicemen have actually acquired a new domicile in a State for franchise purposes. We emphasize that Texas is free to take reasonable and adequate steps, as have other States, to see that all applicants for the vote actually fulfill the requirements of bona fide residence. But this constitutional provision goes beyond such rules. '[T]he presumption here created is . . . definitely conclusive---incapable of being overcome by proof of the most positive character.' [citing case] All servicemen not residents of Texas before induction come within the provision's sweep. Not one of them can ever vote in Texas, no matter how long Texas may have been his true home. '[T]he uniform of our country . . . [must not] be the badge of disfranchisement for the man or woman who wears it.' "

Opinions of the Attorney General, 1962-1964, pp. 463-464, quotes from In re Noyes' Estate, (1947) 182 Or. 1, 17, 185 P. (2d) 555, regarding the quantum of proof in a serviceman's change of domicile case:

" '* * * while a member of the armed forces can abandon a domicile and acquire another, it requires the clearest and most unequivocal proof to show that he has done so during his term of enlistment. * * *' "

The opinion also suggests the procedure to be followed in cases of claimed change of domicile to Oregon by officials deciding those matters (election officials in your case):

"The evidence offered [in each case] in support of change of residence should * * * be carefully verified and, if true and no evidence of a contrary intent appears, residency may be regarded as established. * * *"

We conclude that a serviceman, whether stationed on or off a military base in Oregon, may establish an Oregon domicile for any purpose including that of registering to vote by a clear showing of intent to become a domiciliary of Oregon. And once a domiciliary he must be permitted to vote when qualified under the requirements of Oregon's election laws above discussed.