The real test of residency


To The Editor:

Residency is notoriously difficult to prove or disprove. Some law enforcement officials believe that the most important evidence of residency is whether there is milk in the refrigerator, underwear in the dresser, and high water bills. It is not. It is a person’s intention to make a place his or her residence.

An important case on the residency of an official is State ex rel. Husted vs. Brunner, et al., 123 Ohio St. 3d 288 (Ohio 2009). Whether one is an elector matters if it is a requirement to hold a political office.

In 2008, then state senator Jon Husted’s status as an elector of Montgomery County was challenged on residency grounds. Husted’s wife and their daughter resided in Franklin County. Husted testified that he split his time between Franklin Co. and Montgomery Co. He testified that it was his intention to return to Montgomery Co. when his public service was over. He testified that he paid taxes on the residence in Montgomery County, that he received mail there, and returned at least weekly.

The MC Board of Elections was split as to whether Husted was a resident. In breaking the tie, then Secretary of State Jennifer Brunner (of the opposite political party from Husted) broke the tie in favor of finding that Husted was NOT a resident of Montgomery County. Husted filed for a writ of mandamus.

This writ of mandamus case was decided in Husted’s favor. The Ohio Supreme Court ordered the MC Board of Elections to recognize that Husted was an elector of Montgomery county and entitled to vote there.

While the posture of the case was a challenge to Husted’s status as an elector (given his state legislative duties and laws pertaining to that), it is still significant to the situation in Hillsboro that the Ohio Supreme Court found a person’s intent to live in a certain place as a compelling factor in determining residency. Significantly, the Court found that Sec. of State Brunner erred in not giving proper weight to Husted’s intention to make Kettering his permanent residence for voting purposes.

The Court stated, “Second, the secretary of state failed to accord proper weight to Husted’s intent that his Kettering home remain his permanent residence for purposes of voting. R.C. 3503.02 ‘provides that the person’s intent is of great import,’ State ex rel. Stine v. Brown Cty. Bd. of Elections, 101 Ohio.St.3d 252, 2004-Ohio-771, 804 N.E.2d 415, ¶ 15, and thus ‘emphasizes the person’s intent to make a place a fixed or permanent place of abode.’ State ex rel. Duncan v. Portage Cty. Bd. of Elections, 115 Ohio.St.3d 405, 2007-Ohio-5346, 875 N.E.2d 578, ¶ 11. The secretary of state conceded that ‘Senator Husted’s undisputed testimony repeatedly emphasized his intent to return to Montgomery County on a full-time basis when his public service is completed,’ but she ultimately discounted this uncontroverted evidence….Third, the secretary of state erroneously relied exclusively on R.C. 3503.02(D) (which creates a presumption that the place where the family of a married person resides is the person’s place of residence) to decide the residency issue.”

While law enforcement officials performed a commando raid of the Mayor’s home looking for underwear and milk, they perhaps forgot to get the most relevant evidence for the case – the Mayor’s statement about whether he considers Hillsboro and his residence there “home.”

Laura A. Curliss, J.D.

Former Assistant Law Director

City of Hillsboro

Yellow Springs, OH

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