Bainum v. Kalen

• Decision Date: 01 September 1974
• Docket Number: No. 135,135
• Parties: Stewart W. BAINUM, Jr. v. Elias KALEN et al. ,
• Court: Maryland Court of Appeals

Page 490

272 Md. 490

325 A.2d 392

Stewart W. BAINUM, Jr. v. Elias KALEN et al.

No. 135, Sept. Term, 1974.

Court of Appeals of Maryland.

Per Curiam Order Aug. 28, 1974.

Opinion Sept. 30, 1974.

Appeal from the Circuit Court for Anne Arundel County pursuant to certiorari to the Court of Special Appeals; E. Mackell Childs, Judge

James E. Carbine, Baltimore (Stanley J. Neuhauser and Weinberg & Green, Baltimore, on the brief), for appellant.

Ellen Luff, Gambrills, for appellees Elias Kalen and others.

Francis B. Burch, Atty. Gen., and George A. Nilson, Asst. Atty. Gen., Baltimore, for appellee State Administrative Board of Election Laws.

Argued before MURPHY, C. J., SMITH, DIGGES and ELDRIDGE, JJ., and ROBERT F. SWEENEY, Special Judge.

ORDER

PER CURIAM.

For reasons to be stated in an opinion to be filed later, it is, this 28th day of August, 1974,

Ordered, by the Court of Appeals of Maryland, that the order of the Circuit Court for Anne Arundel County dated Ordered, that the mandate be issued forthwith.

August 26, 1974, be, and it is hereby, affirmed with costs; and it is further

OPINION

ELDRIDGE, Judge.

The appellant Stewart W. Bainum, Jr., filed a certificate of candidacy for the nomination of the Democratic Party for the office of State Senator representing the twentieth legislative district, located in Montgomery County. The appellees, residents of the twentieth legislative district, contending that Mr. Bainum did not meet the constitutional qualifications to be eligible for the office, brought this action in the Circuit Court for Anne Arundel County for a writ of mandamus and for declaratory relief. The defendants were Stewart W. Bainum, Jr., the State Administrative Board of Election Laws, and the State Administrator of Election Laws. Upon cross-motions for summary judgment, the circuit court (Childs, J.) issued an order dismissing the State Administrator of Election Laws from the case, declaring that Mr. Bainum was ineligible to be a candidate for the Democratic Party's nomination for the Maryland Senate and ordering that a writ of mandamus issue directing the State Administrative Board of Election Laws to remove Mr. Bainum from the ballot for the upcoming primary election. Mr. Bainum then took an appeal to the Court of Special Appeals, Because of the importance of the matter, and the need for expedition, we granted a writ of certiorari prior to a decision by the Court of Special Appeals. On August 28, 1974, two weeks before the primary election, we entered a per curiam order affirming the order of the Circuit Court for Anne Arundel County. We now state our reasons for the affirmance.

Article III, Section 9, of the Constitution of Maryland provides in pertinent part:

'No person shall (b)) eligible as a Senator or Delegate, who at the time of his election, is not a citizen of the State of Maryland, and who has not resided therein, for at least three years, next preceding the day of his election . . ..'

The question upon which Mr. Bainum's eligibility turns is whether he has, within the meaning of the constitutional provision, 'resided' in Maryland for the three years preceding the 1974 election. Thus, to be eligible for the Maryland Senate, he must have 'resided' in Maryland continually from November 1971.

The basic facts concerning Mr. Bainum's residence were undisputed. Stewart W. Bainum, Jr., was born in Montgomery County, Maryland and lived there with his parents until the fall of 1964, when he was 18 years old. From the fall of 1964 to June 1968, Mr. Bainum attended Pacific Union College in California, except that he spent a portion of 1967 at Andrews University in Michigan. He returned to his parents' home in the summers of 1965, 1966, 1967, and for two and one-half weeks in 1968. He spent the remainder of the summer of 1968 in Europe.

From the fall of 1968 to June 1970, Mr. Bainum studied for a Master of Business Administration degree at the University of California at Los Angeles. He was married in Los Angeles to a California resident on July 7, 1969. Following the marriage, Stewart Bainum and his wife lived in a Montgomery County, Maryland, apartment for one and a half months. They also spent two months in the summer of 1970 living at Mr. Bainum's parents' home.

While attending graduate school in California, Stewart Bainum registered to vote and actually voted in the June 1970 California primary election. He obtained a California driver's license in 1969 or 1970. He bought a car which he registered in California, and he later bought another car which he registered in Oregon. Mr. Bainum had a savings account in California before his marriage and a joint checking account in California after his marriage. At the same time, he maintained a checking account in Maryland.

From August 1970 to May 1971, Stewart Bainum was employed as a teacher of Business Management at Southern Missionary College in Tennessee. He filed no Maryland State Income Tax return covering the time of his employment in Tennessee. He and his wife rented a furnished house while in Tennessee. They had a joint checking account here, and Stewart Bainum also continued to keep his Maryland checking account. In January 1971, Mr. Bainum informed the college president that he would not continue to teach after May 1971. Concerning his stay in Tennessee, Mr. Bainum testified:

'Q. Mr. Bainum, you said you went to Tennessee, and if I understand you correctly, that when you went to Tennessee, if you liked Tennessee you might have stayed there indefinitely?

'A. No, I said it was a trial. The trial was to find out if I liked the teaching profession. It is conceivable that I would have liked teaching and teaching in that environment and stayed there the rest of my life, as was conceivable when I went to college as a student.'

From July 19, 1971, to August 14, 1972, Stewart Bainum and his wife lived in Oronoco County, Michigan, where Mr. Bainum took graduate courses at Andrews University and his wife taught in a high school. They returned to Mr. Bainum's parents' home for several visits in 1971 and a visit in May 1972. In March 1972, Stewart Bainum registered to vote in Michigan, and he voted in a Michigan primary election on May 16, 1972. When registering to vote he signed a sworn statement that he had established a Michigan residence and reported only his California registration as a previous voter registration. Stewart Bainum obtained Michigan tags for his car in 1971, and a Michigan driver's license in 1972. He reported a capital gain on the sale of some Maryland property on his 1971 Michigan State Income Tax return. He paid no tax on this capital gain since he reported it as accruing during his Tennessee residence. Mr. Bainum filed no Maryland Income Tax return for the same period. His Federal Income Tax return for 1971 listed his Michigan address.

With regard to his residence in Michigan, Stewart Bainum testified as follows:

'A. Given the fact that I went to Michigan and during that period I was in kind of a trial period, I went there not knowing where I would go afterwards.

'Q. So, when you went up there you didn't know if you would stay there, return to Maryland, or go to some other state, is that correct?

'A. I didn't think about it to be frank. There was no reason to think about it. I'm not that insecure that I have my life mapped out five years ahead . . ..'

In August 1972, Stewart Bainum and his wife returned to Maryland where they have resided until the present time. Mr. Bainum continued to use Michigan tags on his car until the beginning of 1973 and to use a Michigan driver's license until early 1974. In 1973, Mr. Bainum filed a Maryland Income Tax return for the year 1972, in which he stated that he had been a resident of Maryland only from '8/72 to present.' On this return, $5,996.53 was subtracted from total income and reported as 'income earned as non-resident.'

On these facts, Judge Childs concluded for the court below:

'. . . whatever his original intentions may have been and whatever his present intentions now are, . . . at least, while he was in Michigan he gave up his Maryland residence, established a residence for political purposes in the State of Michigan and therefore has not complied with the residency requirements of the Maryland Constitution in order to qualify for the office he seeks.'

Judge Childs chiefly relied upon the facts that Stewart Bainum registered to vote and voted in Michigan, treated Michigan as his domicile for tax purposes, and obtained a Michigan driver's license and Michigan tags for his automobile. We agree with Judge Childs that as of November 1971, and for a period of time thereafter, Mr. Bainum 'resided' in Michigan rather than Maryland and thus did not meet the constitutional residency requirement to be a candidate for the Maryland Senate.

Preliminarily, a question has been raised in this case concerning the meaning of the term 'resided' in Article III, Section 9, of the Maryland Constitution. It is suggested that the word 'reside' or its equivalent, as used in constitutional or statutory provisions setting forth qualifications for political office or voting, means actual physical presence or abode rather than domicile. Some language in the opinion in Shaeffer v. Gilbert, 73 Md. 66, 70-71, 20 A. 434 (1890), arguably supports the distinction. However, to the extent that it does, the language from the Shaeffer case was specifically disapproved by this Court in Gallagher v. Bd. of, etc., Elections, 219 Md. 192, 206, 148 A.2d 390 (1959).

From Thomas v. Warner, 83 Md. 14, 20, 34 A. 830 (1896), and Howard v. Skinner, 87 Md. 556, 559, 40 A. 379 (1898), until the present, this Court has consistently held that the words 'reside' or 'resident' in a constitutional provision or statute delineating rights, duties, obligations, privileges, etc., would be construed to mean 'domicile' unless a contrary intent be shown. Thus, our predecessors stated in Howard v. Skinner, supra, 87...