Request By:
Honorable John P. Kirkham
Attorney at Law
1404 South Virginia Street
Hopkinsville, Kentucky 42250
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of May 7 in which you, on behalf of a member of the Christian County Board of Education running for reelection, state that she has been forced to temporarily move from her present residence because of fire damage. She and her husband plan to rebuild the damaged residence but during the repair and reconstruction period, they will be temporarily living at a residence [owned by them but presently rented] located outside of her district. Further you indicate that the board member and her husband will not be able to move back to their old residence until after the deadline for filing and the actual election in November. Under the circumstances, you raise the following question:
"Is a person eligible to run for Board of Education from the district from which they normally reside when temporarily forced to live outside the district by virtue of a casualty loss and repairs to their normal domicile?"
Our response to your question would be in the affirmative. KRS 160.180 (1) (b) requires a board member to be a voter in the district for which he or she is elected. Assuming that the board member presently meets the qualifications of a voter in her district [which means that she is a registered voter] , such is of itself prima facie evidence that she is a qualified voter and legal resident in the district, unless and until she is purged. See KRS 117.245 (1).
It is always difficult to determine a person's legal residence since it is based upon fact and intention and consists of an actual residence at a place in Kentucky, coupled with the intent to remain there. See
Nunn v. Hamilton, 265 S.W.2d 526, 233 Ky. 663 (1930). The individual's intention is the dominant factor in determining legal residence, and when actual residence is established in a particular locality [as is the apparent case in this instance] 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.
Under the terms of KRS 116.035 [which sets forth certain guidelines to be used in determining a voter's legal residence] , we quote the first and second subsections, 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;"
The Court of Appeals in defining the term "residence" has held that it means legal domicile as distinguished as the place of actual abode and is not lost by temporarily departing with the intention of returning. See
Elam v. Maggard, 165 Ky. 733, 178 S.W. 1065 (1915). Reference is also made to
Everman v. Thomas, 303 Ky. 156, 197 S.W.2d 58 (1946), wherein the court cited many factual situations clearly indicating that a voter may leave his legal residence temporarily with the intention of returning and still legally retain said residence.
Under the facts presented indicating that the board member in question was required to leave her legal and voting residence temporarily because of conditions beyond her control and move to a residence outside of her district until sufficient repairs and reconstruction could be made, such would not cause her to lose her voting residence. Thus, in our opinion she remains legally qualified as far as residency is concerned to continue to hold and run for reelection under the terms of KRS 160.180 (1) (b).