Tate v. Collins

• Decision Date: 26 November 1985
• Docket Number: No. 80-2381-M.,80-2381-M.
• Citation: 622 F. Supp. 1409
• Parties: Rozelle TATE, et al., Plaintiffs, v. David COLLINS, et al., Defendants
• Court: U.S. District Court — Western District of Tennessee

622 F. Supp. 1409

Rozelle TATE, et al., Plaintiffs, v. David COLLINS, et al., Defendants

No. 80-2381-M.

United States District Court, W.D. Tennessee, W.D.

November 26, 1985.

Susan L. Kay, Nashville, Tenn., for plaintiffs.

Michael W. Catalano, Asst. Atty. Gen., William F. Howard, Acting Director of Law, Nashville, Tenn., for defendants.

MEMORANDUM DECISION

McRAE, Chief Judge.

Intervenors Ronald Newson and three other inmates at the Tennessee State Penitentiary in Nashville, have petitioned this Court for clarification of its Final Consent Order entered September 17, 1980, in this case on the issue of a proper determination of prisoners' voting domiciles. Specifically, intervenors submit that they are entitled to the opportunity to rebut a presumption that they are domiciled in the county of their residence immediately prior to incarceration and thereby to establish new domicile at the penitentiary in Davidson County.

Newson, et al., were granted permission to intervene pursuant to Fed.R.Civ.P. 24(b). State Coordinator of Elections David Collins (Collins) is properly before the Court as an original defendant in Tate, and the Davidson County officials are before the Court as persons bound by the previous injunction pursuant to Fed.R. Civ.P. 65.

FINDINGS OF FACT

The facts of this controversy are not disputed by the parties. In earlier proceedings in this case, Tate v. Collins, 496 F.Supp. 205 (W.D.Tenn.1980), which concerned absentee voting procedures for Tennessee prisoners convicted of "noninfamous" crimes, this Court included in its Final Consent Order a paragraph to be followed in determining a prisoner's voting residence.

The paragraph stated:

The registrant's right to register shall be determined in accordance with the provisions of Tennessee Code Annotated sections 2-2-120—2-2-122. A registrant presently incarcerated in a jail, workhouse, prison or other penal institution shall be presumed to legally reside at his last free-world residence prior to his conviction unless a contrary intent is shown pursuant to the Tennessee Code Annotated sections 2-2-120—2-2-122 (emphasis added).

Subsequent to entry of this Order, defendant Collins instructed county election officials throughout the state of Tennessee to reject the voter registration application of any prisoner who subjectively asserted on the application that the county of incarceration was his legal residence for voting purposes but whose last free-world residence was not the county of incarceration, absent some type of objective manifestation of a change of residence.

In 1981, the Tennessee General Assembly enacted Chapter 337 of the Public Acts of 1981 which repealed T.C.A. § 2-2-121 and deleted the subjective questions set forth in T.C.A. § 2-2-116 for determining legal residence for voting purposes. However, Chapter 337 replaced these subjective questions with the following subjective affirmation:

I, being duly sworn on oath (or affirmation) declare that the above address is my legal residence and that I plan to remain at such residence for an undetermined period of time and say that to the best of my knowledge and belief all the foregoing statements made by me are true.

The enactment of Chapter 337 did not alter defendant Collins' interpretation of the final consent order.

There are approximately 320 male inmates at the Tennessee State Penitentiary in Davidson County who are eligible to vote. Because Tennessee law now provides that anyone convicted of a felony after 1981 is ineligible to vote, the number of imprisoned eligible voters should not increase and can be expected to decrease gradually over time. In 1984, a number of inmates otherwise eligible to vote sought to register in Davidson County. The Davidson County election officials, acting upon instructions authorized by statute from defendant Collins, adopted a policy declining to recognize domicile in Davidson County for any inmate whose last free-world residence prior to incarceration was elsewhere than in Davidson County. That policy continues in effect according to depositions filed in this Court.

CONCLUSIONS OF LAW

A. Grounds for Decision

Intervenors have urged among other grounds for decision that defendants' actions are in conflict with a proper reading of the Final Consent Order as informed by the principles for establishment of domicile adopted by the state and federal courts and the legislature of Tennessee.

Because the issue before the Court can be decided on nonconstitutional grounds, it is unnecessary to decide whether the current Tennessee scheme either on its face or as applied is unconstitutional. The Court notes, however, that in developing a plan to regulate the voter registration process for prisoners, it is mindful of the necessity to narrowly tailor the least restrictive means necessary to promote the compelling state interest in prevention of voting irregularities. See Kramer v. Union Free School District, 395 U.S. 621, 632-33, 89 S.Ct. 1886, 1892, 23 L.Ed.2d 583 (1969).

B. Determinations of Voting Domicile

Tennessee Code Annotated §§ 2-2-116, 2-2-120, 2-2-122 and 2-2-125 contain the following provisions salient to the determination of a prisoner's domicile for voting purposes:

1. § 2-2-122(a)(2) and (3), which state that, "A change of residence is generally made only by the act of removal joined with the intent to remain in another place.... A person does not become a resident of a place solely by intending to make it his residence. There must be appropriate action consistent with the intention."

2. § 2-2-122(a)(4), which states that, "A person does not lose his residence if, with the definite intention of returning, he leaves his home and goes to another ... place within this state for temporary purposes, even if of years duration." (emphasis added)

3. § 2-2-122(a)(5), which states, "The place where a married person's spouse and family have their habitation is presumed to be his place of residence, but a married 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."

4. § 2-2-122(a)(6), which states that, "A person may be a resident of a place regardless of the nature of his habitation, whether house or apartment, mobile home or public institution ..." (emphasis added).

5. § 2-2-122(a)(7), which states, "A person does not gain or lose residence solely by reason of his presence or absence while employed in the service of the United States or of this state, or while a student at an institution of learning, or while kept in an institution at public expense, or while confined in a public prison, or while living on a military reservation." (emphasis added)

6. § 2-2-122(b), which states, "The following factors, among other relevant matters, may be considered in the determination of where a person is a resident:

(1) His possession, acquisition or surrender of inhabitable property;

(2) Location of his occupation;

(3) Place of licensing or registration of his personal property;

(4) Place of payment of taxes which are governed by residence;

(5) Purpose of his presence in a particular place;

(6) Place of his licensing for activities such as driving;

(7) That he shall have been a resident of this state for a period of at least twenty (20) days prior to such registration. (emphasis added)

7. § 2-2-116, which states that the permanent registration record shall be "substantially as follows" and prescribes the following declaration: "I, being duly sworn on oath (or affirmation) declare that the above address is my legal residence and that I plan to remain at such residence for an undetermined period of time ..."

8. § 2-2-120 and -125, which state that, "The registrar shall determine, from the registrant's answers to the questions on the permanent registration record and other questions, if necessary, whether the registrant is entitled to register. If the registrar determines that the registrant is entitled to register, he shall declare the registrant a registered voter .... If the registrar determines that the registrant is not entitled to be registered, he shall tell the registrant the reason, ... that he has a right to appeal ... and offer him an appeal form. If the commission believes that the appellant has violated the law in registering, it shall report the matter to the grand jury and the district attorney general." (emphasis added)

The language of the Final Consent Order, supra, sets out three principles for the determination of a prisoner's voting domicile: (1) a presumption of domicile at the last free-world residence; (2) an opportunity for the prisoner to show a contrary intent, that is, to rebut the presumption; and (3) an obvious direction that the prisoner's contrary showing and the overall resolution of the domicile issue should be accomplished pursuant to the statutory scheme. That statutory scheme contemplates an opportunity for a prisoner to establish a new domicile at the place of incarceration and provides guidelines relevant to the determination of the sufficiency of that showing. The Tennessee Supreme Court has said that domicile is "the home or habitation fixed in any place, without a present intention of removing therefrom." Brown v. Hows, 163 Tenn. 178, 182, 42 S.W.2d 210, 211 (1931). The United State Court of Appeals for the Sixth Circuit has elaborated:

To acquire a domicile within a particular state, a person must be physically present in the state and must have either the intention to make his home there indefinitely or the absence of an intention to make his home elsewhere. Stifel v. Hopkins, 477 F.2d 1116, 1126 (6th Cir.1973).

The requisite intent, thus, is that a person have "no present intention of changing" the place of abode, a quality the Supreme Court has termed "the essence of domicile." Gilbert v. David, 235 U.S. 561, 570, 35 S.Ct. 164, 167, 59 L.Ed. 360 (1919).

Historically, a prisoner or other person kept at an...