Request By:
Mr. Earnest B. Gabbard
Box 234
McKee, Kentucky 40447
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 7 in which you relate that you have announced for nomination to the office of jailer of Jackson County at the May 24 primary. You have served as jailer for four terms but retired in June, 1976. You keep your furniture and household goods in McKee, Kentucky, which is located in Jackson County where you have voted all your life. However, you were told that you could not run because you went to Richmond in December looking for a part-time job where you engaged a room at your brothers to keep from driving back and forth from McKee, Kentucky. Under the circumstances you desire to know whether or not you have retained your legal residence in McKee and are therefore qualified to run for the office.
It is sometimes difficult to determine one's legal residence since it is based upon fact and intention and such is, of course, a question for the courts to decide. As we said, legal residence in Kentucky is based upon fact and intention and consists of actual residence at a place in Kentucky, coupled with the intent to remain there. See
Nunn v. Hamilton, 26 S.W.2d 526, 233 Ky. 663 (1930). Intention is the dominant factor in determining legal residence and when actual residence is established, coupled with the intention to make one's home at that address permanently, the person becomes a legal resident thereof, even though he lives elsewhere temporarily.
To review the law more fully on the question with respect to residence for voting purposes we refer you first to the provisions of KRS 116.035 which read as follows:
"(1) A voter's residence shall be deemed to be at the place where his habitation is, and to which, when absent, he has the intention of returning;
"(2) A voter shall not lose his residence by absence for temporary purposes merely; nor shall he obtain a residence by being in a county or precinct for such temporary purposes, without the intention of making that county or precinct his home;
"(3) A voter shall lose his residence by removal to another state or county with intention to make his permanent residence there, or by removal to and residence in another state, with intention to reside there an indefinite time, or by voting there, even though he may have had the intention to return to this state at some future period."
The Court of Appeals in defining the term "residence" has held that it means legal domicile as distinguished from the place of actual abode and it is not lost by temporarily departing with the intention of returning. See
Elam v. Maggard, 165 Ky. 733, 178 S.W. 1065 (1915).
In the case of
Everman v. Thomas, 303 Ky. 156, 197 S.W.2d 58 (1946), the Court of Appeals expressed the following legal requirements for establishing an individual's right to register and vote at a particular location:
". . . Residence for the purpose of voting means a place of fixed domicile, and carries with it the element of permanence; there must be the act of abiding, coupled with the intention of remaining and making the place one's home to the exclusion of other places. Intent may not be proved by mere declarations. The declarations are to be judged by the conduct of the party, and where there is a discrepancy they yield to the conclusion to be drawn from his acts . . ."
The Everman case, supra, contains many factual situations, some of which appear pertinent to the question presented by you. For example, the court cited the case of a former county official of Powell County that had moved to Lexington about three years before the election where he continued to be employed. This man had sold his property in Powell County but had left some furniture and he testified that he regarded Powell County as his home, and intended to return there some day. The court gave him the benefit of the doubt, and held that he was entitled to vote in Powell County. In another situation we find a well driller who went from place to place drilling wells but who always treated Powell County as his permanent residence where he had voted continually. The court held that he was entitled to vote in Powell County notwithstanding he had actually resided in Menifee County for more than two years before the election. Another case is that of a farm tenant who stated that he had temporarily moved to another precinct for the purpose of cultivating some land. The court held that he was entitled to vote in his old precinct where he had left furniture in a tenant house.
From the facts given, we believe that you have continued to retain your legal residence in McKee, Kentucky, since it seems apparent that your work in Richmond was temporary and that your intention as well as the factual evidence supports the fact that your legal residence is McKee, Kentucky. Such questions, however, are always subject to court action since each factual situation is different.
In any event, the clerk must accept your filing papers and it will be up to an opposing candidate or qualified voter to bring an action in circuit court to determine your right to remain on the primary ballot. See KRS 118.176.