State ex rel. Herdman v. Franklin Cty. Bd. of Elections

• Decision Date: 25 October 1993
• Docket Number: No. 93-1826,93-1826
• Citation: 621 N.E.2d 1204,67 Ohio St.3d 593
• Parties: The STATE ex rel. HERDMAN v. FRANKLIN COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

Page 593

67 Ohio St.3d 593

621 N.E.2d 1204

The STATE ex rel. HERDMAN v. FRANKLIN COUNTY BOARD OF ELECTIONS et al.

No. 93-1826.

Supreme Court of Ohio.

Submitted and Decided Oct. 13, 1993.

Opinion Announced Oct. 25, 1993. ^*

Relator, Randy L. Herdman, filed a statement of candidacy and nominating petition for election to the office of mayor of the village of Brice at the November 2, 1993 election. Respondents, the Franklin County Board of Elections and its members, found that the petition contained sufficient valid signatures. On August 30, 1993, Michael Gipson filed a written protest with respondents. Respondents held a hearing on the protest on September 2, 1993. The substance of the protest concerned whether relator will have been a resident of Brice for one year prior to the election, as required by R.C. 733.24. Relator presented evidence that he will have been a resident for the required period, but respondents voted to sustain the protest and not place relator's name on the November ballot. Relator then filed this mandamus action to compel respondents to place his name on the ballot.

McTigue & Brooks and Donald J. McTigue, Columbus, for relator.

Michael Miller, Franklin County Pros. Atty., and Harland H. Hale, Asst. Pros. Atty., for respondents.

PER CURIAM.

We deny the writ for the following reasons.

In his deposition, ¹ relator alleges that he has, since 1985, considered his parents' former home at 3000 High Street, Brice, Ohio, his permanent residence, even though he had married and lived with his wife, child and stepchildren in Canal Winchester, Ohio, in 1989 and 1990, and had lived in Columbus for a time in 1990. Most important, he claims continuous residence at the Brice address since October 1990. He also states that he informally separated from his wife in October 1990, that she lived with her parents thereafter until relator and his wife reunited in March 1993, that he is an interstate truck driver and may be away from home for long periods, and that he executed a land installment contract to purchase the property at 3000 High Street, Brice, from his mother on June 14, 1993.

Relator has also submitted various documents executed between 1990 and 1993, which give his address as 3000 High Street, Brice. However, respondents discovered at the hearing that on October 30, 1992, relator had applied for an absent voter's ballot for the November 1992 election, stating that he would be absent from the county on election day (November 3, 1992) beginning October 31, 1992, and writing a Columbus address on the application form. Respondents also discovered that relator had not filed a municipal income tax return to Brice for 1992, even though he had income. For these reasons, respondents upheld the protest and refused to place relator's name on the ballot.

R.C. 733.24 states in part:

"The mayor of a village shall be elected for a term of four years, commencing on the first day of January next after his election. He shall be an elector of the village and shall have resided in the village for at least one year immediately preceding his election. * * * "

R.C. 3503.02 states in part:

"All registrars and judges of elections, in determining the residence of a person offering to register or vote, shall be governed by the following rules:

"(A) That place shall be considered the residence of a person in which his habitation is fixed and to which, whenever he is absent, he has the intention of returning.

"(B) A person shall not be considered to have lost his residence who leaves his home and goes into another state or county of this state, for temporary purposes only, with the intention of returning.

" * * *

"(D) The place where the family of a married man or woman resides shall be considered to be his or her place of residence; except that when the husband and wife have separated and live apart, the place where he or she resides the length of time required to entitle a person to vote shall be considered to be his or her place of residence."

We have previously applied this statute in candidate-residence cases. State ex rel. Nichols v. Vinton Cty. Bd. of Elections (1985), 20 Ohio St.3d 1, 20 OBR 75, 484 N.E.2d 690; State ex rel. Spangler v. Cuyahoga Cty. Bd. of Elections (1983), 7 Ohio St.3d 20, 7 OBR 487, 455 N.E.2d 1009; State ex rel. Lakes v. Young (1954), 161 Ohio St. 341, 53 O.O. 249, 119 N.E.2d 279; State ex rel. Klink v. Eyrich (1952), 157 Ohio St. 338, 47 O.O. 198, 105 N.E.2d 399.

Essentially, relator claims residence under division (A), by stating that he has in fact resided at 3000 High Street, Brice, since October 1990, and that he has not lost residence under division (B) because of his temporary absence as a truck driver, or under division (C) because he lived separately from his family when he and his wife were separated. Relator's evidence consists of his testimony and sixteen documents. Respondents rely on two documents--the request for a 1992 absent voter's...