State ex rel. Kristof v. Fagan

• Citation: 369 Or. 261,504 P.3d 1163
• Decision Date: 17 February 2022
• Docket Number: SC S069165
• Parties: STATE EX REL Nicholas KRISTOF, Plaintiff-Relator, v. Shemia FAGAN, Secretary of State of the State of Oregon, Defendant.
• Court: Supreme Court of Oregon

369 Or. 261

504 P.3d 1163

STATE EX REL Nicholas KRISTOF, Plaintiff-Relator,

v.Shemia FAGAN, Secretary of State of the State of Oregon, Defendant.

SC S069165

Supreme Court of Oregon.

Submitted on the briefs January 27, 2022.

February 17, 2022

Misha Isaak, Perkins Coie, Portland, filed the briefs for plaintiff-relator. Also on the briefs were Thomas R. Johnson and Jeremy A. Carp.

Benjamin Gutman, Solicitor General, Salem, filed the brief for defendant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Kirsten M. Naito, Christopher A. Perdue, and Patricia G. Rincon, Assistant Attorneys General.

Nicholas Kahl, Nick Kahl, LLC, Portland, filed the brief for amici curiae WLnsvey Campos, Imani Dorsey, Nancy Haque, Reyna Lopez, Becca Uherbelau, and Andrea Valderrama.

Thomas M. Christ, Sussman Shank, LLP, Portland, filed the brief for amici curiae Bill Bradbury and Jeanne Atkins.

Drew L. Eyman, Snell & Wilmer, LLP, Portland, filed the brief for amici curiae Leaven Community Land and Housing Coalition, Dr. Angela E. Addae, and David Fidanque. Also on the brief was Clifford S. Davidson, Portland.

Harry B. Wilson, Markowitz Herbold, PC, Portland, filed the brief for amicus curiae Derrin "Dag" Robinson. Also on the brief was Hannah K. Hoffman, Portland.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, and Nelson, Justices, and Landau and Nakamoto, Senior Judges, Justices pro tempore.^*

PER CURIAM

Relator is a prospective candidate for governor. After he filed his declaration of candidacy with the Secretary of State, the secretary asked relator for additional information to substantiate that he will "have been three years next preceding his election, a resident within this State," as required to serve as governor by Article V, section 2, of the Oregon Constitution. Relator submitted additional materials in support of his claim that he meets the constitutional eligibility requirement. Upon reviewing those materials, the secretary determined that, although relator had previously been a resident of Oregon, he had been a resident of New York since at least 2000 and he had not reestablished Oregon residency by November 2019. The secretary therefore concluded that relator did not meet the constitutional requirement. The secretary notified relator of that determination, informing him that, as a result, his name would not be placed on the ballot in the primary election. The next day, relator filed a petition for writ of mandamus in this court, asking us to direct the secretary to reverse her determination and to instruct county officials to place relator's name on the ballot. The secretary agreed that this court should decide this case. We issued an alternative writ of mandamus directed to the secretary and set an expedited schedule for briefing.

In communicating its decision to relator, the Elections Division correctly emphasized that "it is not the Elections Division's role to determine whether any candidate is sufficiently ‘Oregonian’ " or "to examine the depth or sincerity of a candidate's emotional connection to Oregon." That is not this court's role either. It is undisputed that relator has deep roots in Oregon and has consistently spent time here over many years. This case, however, requires us to decide two legal questions: (1) the meaning of "resident within this State," as those words are used in Article V, section 2, of the Oregon Constitution ; and (2) whether the secretary was required to conclude that relator met that legal standard. As we explain below, we conclude that "resident within," when viewed against the legal context that surrounded the Oregon Constitution's 1857 ratification, is best understood to refer to the legal concept of "domicile," which requires "the fact of a fixed habitation or abode in a particular place, and an intention to remain there permanently or indefinitely[.]" Reed's Will , 48 Or. 500, 504, 87 P. 763 (1906). Under that legal concept, a person can have only a single residence at a time. Id. For the reasons that follow, we further hold that, on the record before the secretary, she was not required to conclude that relator was domiciled in Oregon between November 2019 and December 2020. Finally, although relator challenges the constitutionality of the durational residency requirement in Article V, section 2, we conclude that that question is not properly considered through this mandamus proceeding. We therefore dismiss the alternative writ and deny relator's petition.

I. BACKGROUND

Relator is an author, journalist, and farmer who wishes to run for governor, as a candidate in the Democratic primary. Relator filed with the Secretary of State as a candidate on December 20, 2021. The next day, the Elections Division reached out to his campaign, stating that it needed additional information to process the filing, in connection with the requirement in Article V, section 2, of the Oregon Constitution that a candidate for governor shall have been an Oregon resident for three years before the election. The letter noted that relator had voted in New York State as recently as 2020.

Relator responded with a lengthy packet of materials, including an affidavit from relator, two declarations from relator's friends, and excerpts of relator's writings referring to Oregon. The packet also included legal materials and analysis in support of an argument that relator had been an Oregon resident for three years or more. The information contained in the packet, detailing relator's connections to Oregon, was substantially as follows.

Relator moved to Oregon in 1971, at the age of 12. He lived on a farm in Yamhill County that was owned by his parents. Relator left Oregon to attend college in 1978. He began working for the New York Times in 1984. He spent at least some part of the years between 1978 and 2000 abroad, including in China and Japan, due to his employment as a journalist. During that 22-year period, relator was registered to vote in Oregon and maintained an Oregon driver's license.

During that same period, relator began to purchase property in Oregon. Relator first purchased a 150-acre property in Yamhill County in 1993. He subsequently purchased another property, around twice the size, in McMinnville. Relator managed both properties, including by planting trees, stocking ponds, maintaining roads, managing government forestry programs, and renting out cropland. Relator has paid Oregon property taxes on both pieces of property since purchasing them.

Relator also remained involved with the family farm. From 1984, relator spent "part of every summer" on the family farm in Oregon, with the exception of 1989. However, the only year in which he spent most of his time in Oregon was 1994. Other than that, relator's submission gave no specifics about how much time relator would typically spend in Oregon. In 1994, he built an addition to the family farm that included bedrooms for himself and his wife, and for his children. Relator and his immediate family keep personal items at the farm, and he continues to receive mail there. In 2010, when relator's father died, relator "assumed his responsibilities as primary manager of the farm." That involved "maintain[ing] farm equipment, order[ing] trees, repair[ing] roads, and manag[ing] timber."

However, relator also developed connections with the State of New York, in addition to his employment at the New York Times. In 1999, relator purchased a home in Scarsdale, New York. In 2000, relator began filing income taxes in New York, and he registered to vote there at the same time. In addition, likewise beginning in 2000, relator obtained and maintained a New York driver's license, which he maintained until December 2020. Relator's children attended public schools in Scarsdale, New York, with the exception of 1999, when they attended school in Oregon. Relator was employed by the New York Times until October 2021.

Relator began spending more time in Oregon in 2018 and 2019, much of it in connection with a book that he was writing about economic and social changes in Yamhill County. He and his wife "spent considerable time during [2018] and in 2019 at home in Oregon conducting interviews and other research for the book," although he provides no further indication of the extent of his time in Oregon during those years, compared to his time in New York. At the same time, relator made a "significant investment of time, effort, and money to transition the family farm, whose primary crop had been cherries, to grow cider apples and wine grapes instead." Relator began leasing the farm from his mother, and he and his wife formed an Oregon limited liability corporation in August 2019. Relator hired three employees, whom he supervises. Relator also purchased additional acreage adjacent to the farm in 2020. Relator filed Oregon income taxes, as well as New York income taxes, in 2019 and 2020, although he did not include in his submission whether he had filed in Oregon as a resident or nonresident. Although relator was physically present in Oregon at the time, he cast a New York ballot in the 2020 general election. Relator did not change his voter registration to Oregon until December 2020. Relator likewise retained a New York driver's license until December 2020.

Relator's affidavit states that he has viewed Oregon as his "home" since he moved here at the age of 12. Relator's submission includes four interviews or pieces of writing in which he referred to Oregon as his home. Relator states that the family farm is where he lives and where he feels at home, and he plans to retire to Oregon. He further states that "[i]t is my intention that I am a resident of the State of Oregon," both during and prior to the three-year period at issue in this case.

Relator's packet also contains declarations from two of his friends. The first, a resident of Yamhill County, confirms that relator returned to Oregon virtually every year and that relator has spent more time in Oregon since 2018. He...