Klumker v. Van Allred

Decision Date06 May 1991
Docket NumberNo. 19077,19077
Citation811 P.2d 75,1991 NMSC 45,112 N.M. 42
PartiesGeorgia KLUMKER, Plaintiff-Appellant, v. Guss VAN ALLRED, Jr., Defendant-Appellee.
CourtNew Mexico Supreme Court
OPINION

MONTGOMERY, Justice.

This is an election contest. The unsuccessful Democratic candidate for the office of county commissioner in Catron County in 1988,1 Georgia Klumker, challenged the result of the election, in which Republican Guss Van Allred was declared the winner by a vote of 735 to 731. Klumker contested this result in district court,2 attacking the absentee ballots cast by three of Van Allred's half-cousins (the Allred brothers)3 and asserting that three other absentee ballots, cast for Klumker, had been improperly rejected by the precinct board and should have been counted in her favor. The principal issue raised by her challenge relates to the residence for voting purposes of each of the Allred brothers. The district court rejected the challenge and confirmed the count as certified by the county clerk, holding that the Allred brothers were residents of Catron County for voting purposes and that the other three ballots had been properly rejected. Klumker appeals and we reverse, finding a lack of substantial evidence to support the court's findings as to residence and holding that the court's application of provisions of the Absent Voter Act4 to disqualify the other three ballots was erroneous as a matter of law.

I.

The Allred brothers were born and reared in Catron County. They and other extended family members have a family homestead in Glenwood, which the brothers visit two or three times a month (or, in Robert Allred's case, perhaps as often as every Sunday). They keep clothing and other personal effects and property there; and each of them intends, during times when he is absent, to return to the home at Glenwood and, someday, to return and reside there permanently.

However, prior to the 1988 election each of the Allred brothers had lived elsewhere for periods ranging from eight to eighteen years. John Allred moved to Texas in 1970 and has lived continuously in that state since then. He voted in El Paso County in the 1986 and 1987 general elections and in the 1988 primary. Robert Allred moved to Lordsburg in Hidalgo County, New Mexico, in 1975. He voted there during the period 1976-86. Bruce Allred moved to Silver City in Grant County, New Mexico, in 1979; he voted there in the 1984 and 1986 general elections.

Robert and Bruce Allred each owns a home in Lordsburg and Silver City, respectively. John Allred has rented or owned a residence in El Paso, Texas, since 1981. Each of the brothers is married and has children; these immediate family members live in the respective homes of the three brothers. Each is employed in or near the community where his immediate family lives; and each lists this place of residence on his automobile registration, driver's license, tax returns, and bank account. In April 1988 Robert and Bruce registered to vote in Catron County, and in October of the same year John did likewise. Each was "physically present," as the trial court found, in Catron County at the time he registered. None made any change in his living arrangements at or before that time. All three voted in the general election by absentee ballot.

The district court found that although each of the Allred brothers had always considered Glenwood his home and permanent residence, because of the scarcity of employment in Catron County each had a job that required him to maintain a second residence outside the county but at which his habitation was not fixed. The court also found (expressing the finding as a conclusion of law) that the place in which each brother's habitation was fixed and to which, whenever he was absent, he had the intention to return was Glenwood, Catron County, New Mexico. Klumker challenges these findings as not supported by substantial evidence and as flowing from an incorrect application of the New Mexico statute prescribing rules for determining residence for voting purposes, NMSA 1978, Section 1-1-7 (Repl.Pamp.1985).

The precinct board rejected absentee ballots cast by Mrs. Tolbert Lyon and Mr. W.A. Sullivan, each of whom voted for Klumker. The two ballots were rejected because the forms on the reverse side of the mailing envelopes for the ballots did not contain the printed name of the voter on a line provided for that purpose, were not dated, contained (in the case of the Sullivan ballot) the wrong registration number, and did not contain (in the case of the Lyon ballot) the voter's address. The district court concluded that these were proper reasons for rejection.

Another absentee ballot was marked "spoiled" by the precinct board.5 The ballot was rejected because the machine used to tabulate the absentee ballots would not accept it, the voter had voted for more than one presidential candidate, and it was marked as a straight ticket but had been voted as a split ticket. The trial court held the first two of these three reasons proper for rejecting the ballot.

Klumker asserts on appeal that the Sullivan, Lyons, and "spoiled" ballots were improperly rejected and, under our Election Code, should have been counted.

II.

Under New Mexico law, "residence" for voting purposes is defined as follows: "[T]he residence of a person is that place in which his habitation is fixed, and to which, whenever he is absent, he has the intention to return[.]" Section 1-1-7(A). We recently considered this definition, and the other rules for determining residence for voting set out in Section 1-1-7, in Apodaca v. Chavez, 109 N.M. 610, 788 P.2d 366 (1990). That case involved circumstances analogous to those in the present case, insofar as they bear on the question of a voter's residence for voting purposes. We held that the person whose residence was challenged6 resided in the county where he maintained a significant physical presence and intended to remain. Id. at 614-15, 788 [112 NM 45] P.2d at 370-71. The instant case presents facts which in many ways are the opposite (or, as Klumker suggests, the "flip side") of the facts in Apodaca. Whereas in Apodaca the person whose residence was challenged (Chavez) spent substantial amounts of time at his home in Santa Fe County (three or four nights a week), always voted in that county, and used a Santa Fe County address on his driver's license, tax returns, bank accounts, and other important documents, the Allred brothers spent most of their time with their families outside Catron County, voted elsewhere than in Catron County before registering there in 1988, and used addresses outside Catron County on their important documents.

In Apodaca, we took note of the presumption in Section 1-1-7(B) that

the place where a person's family resides is presumed to be his place of residence, but a person who takes up or continues his abode with the intention of remaining at a place other than where his family resides is a resident where he abides[.]

We ruled that this presumption was rebutted by the evidence that, despite the fact that his immediate family resided in Rio Arriba County, Chavez had continued an abode, with the intention of remaining, at a place in Santa Fe County. 109 N.M. at 615, 788 P.2d at 371. Here, the presumption is reinforced, rather than rebutted, by the evidence as to where each of the Allred brothers abides. The trial court made no finding of where each abides, but it may be fairly inferred, from the court's findings that the brothers' "habitation" was fixed in Catron County, that the court found they did, in fact, abide in that county.

There was no substantial evidence to support such a finding. The terms "abode" and "habitation" are synonyms for the place where a person lives. Apodaca reconfirms that in New Mexico a person can live in more than one place. Id. at 613, 788 P.2d at 369; see also State ex rel. Magee v. Williams, 57 N.M. 588, 592-93, 261 P.2d 131, 133 (1953). Nevertheless, "[t]here can be only one residence" for voting purposes. Section 1-1-7(C); Williams, 57 N.M. at 592, 261 P.2d at 133. Although residence is often "largely a question of intention," Klutts v. Jones, 21 N.M. 720, 727, 158 P. 490, 492 (1916), we recognized in Apodaca that intent and a significant physical presence must be conjoined to establish a place as one's residence for voting purposes. See Apodaca, 109 N.M. at 614, 788 P.2d at 370. While the trial court found on substantial evidence that the Allreds' intention was to return to Catron County, there was no substantial evidence that they had, at any time during the 8-18 year period before 1988, the requisite physical presence in Catron County. In short, and unlike Mr. Chavez in Apodaca, there was no evidence that they actually lived in Catron County.

The trial court's only findings bearing on physical presence were that each of the Allred brothers maintained clothing and other personal property at their home and ranch in Glenwood, that they each spent as much time as they could there, and that each was "physically present" when he registered to vote. The last finding--physical presence on registering to vote--has no particular legal significance. What is required is not momentary, or occasional or sporadic, physical presence; it is significant physical presence consistent with the ordinary conception of living (or abiding, or residing, or dwelling, or maintaining a habitation) in a place. The Allred brothers may have been physically present in the county clerk's office when they registered to vote; they may have returned to Glenwood two or three times a month or even every Sunday; and they may have kept various articles of personal property there and worked to keep up the ranch and make various repairs there. But there was no evidence that ...

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    • United States
    • Court of Appeals of New Mexico
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