Request By:
Mrs. Peggy Lancaster Smith
P.O. Box 646
Cadiz, Kentucky 42211
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of March 10 in which you relate that you were appointed to fill the unexpired term of the office of property valuation administrator. Prior to this time you had served as deputy for a period of fifteen (15) years. You are now a candidate for the Democratic Party nomination to this office and the question has been raised as to whether or not you possess the residential qualifications.
In conjunction with your question you relate the following facts:
"The facts are as follows: I was born and raised in Trigg County. I am a 1965 graduate of Trigg County High School. In November, 1966, I was employed by the PVA office. This employment has continued uninterrupted. I was appointed PVA of the county. I am a registered voter in the Caledonia-Roaring Springs precinct in Trigg County and have been continuously registered to vote in Trigg County since approximately 1966.
"In the course of my 15 years of employment with the PVA office in Trigg County, my husband and I have owned and resided at several locations in Trigg County. We presently own an undivided one-half interest in a home and 10 acres on Route #1 in eastern Trigg County. I have two children, Frankie, age 13, and Marc, age 10, both of whom have been continuously enrolled and are presently enrolled in the Trigg County School system.
"The question about my satisfying the constitutional qualifications to seek the office of PVA apparently stems from the fact that my husband is employed as a policeman by the City of Hopkinsville in Christian County, which adjoins Trigg County. In August, 1980, my husband's employer, the Hopkinsville Police Department, imposed a condition on his employment that he reside in the City of Hopkinsville in order to continue serving on its police force. Upon learning of this requirement, my husband promptly leased a home located in Hopkinsville. Since leasing this home, my husband has moved some of our furniture to the Hopkinsville home and I have spent some evenings there. Over one-half of my furniture is still located in Trigg County and I have continued to spend over one-half of my evenings at our Trigg County residence. During the time period while we have had the Hopkinsville home rented, I have continued to work at the Trigg County PVA office and my children have continued to go to Trigg County schools. I have been maintained on the rolls as a registered voter in Trigg County; I have continued to pay Trigg County property taxes on the property which we own here; and I have continued to hold out and claim that I am a resident of Trigg County. In fact, no one has previously questioned my residency in Trigg County and the matter has only arisen after I announced for the office of PVA.
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"Based on the foregoing facts, do I satisfy the requirements under Section 100 of the Kentucky Constitution to seek the office of Trigg County Property Valuation Administrator?"
KRS 132.370 (2) requires a PVA to possess the qualifications required of § 100 of the Constitution which, in turn, requires this officer to be a legal resident of the county for one year next preceding his election.
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, coupled with the intent to remain there. The individual's intent is the dominant factor. See
Nunn v. Hamilton, 265 S.W.2d 526, 233 Ky. 663 (1930).
There are certain statutory guidelines to be used in determining a voter's legal residence which would apply in this instance and we refer you to KRS 116.035 from which we quote the first and second subsections:
"(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.
From the facts given to the effect that you continue to be a registered voter in the county and hold yourself out to be a resident of the county, that your husband was required to move to an adjoining county to hold a position with the Hopkinsville Police Department during employment, that your children continue to be enrolled in the Trigg County Schools, that you and your husband continue to own and reside at a residence in Trigg County, though you spend some time in the other county to be with your husband, would, we believe, be sufficient evidence to sustain your contention that you are in fact a legal resident of Trigg County and, therefore, will meet the constitutional residential qualifications. Though we believe that you are qualified insofar as residence is concerned, it is nevertheless a question that ultimately can only be decided by the courts.
We might mention here that police officers in cities of the third class are not required by statute to actually or legally reside within the city in order to be qualified. See OAG 79-369, copy attached.