Tre Hargett, Secretary of State State of Tennessee 0 . 2 15? i 3 Division of Elections 312 Rosa Parks Avenue, Floor Nashville, Tennessee 37243-0305 Mark Goins 615-741-7956 Coordinator of Elections Mark.Goins@tn. gov April 11, 2012 Cliff Rodgers, Administrator of Elections Knox County Election Commission 300 Main Street Knox Co Courthouse Room 218 Knoxville, TN 37902 Re: Residence Determination for Qualification for Ballot Dear Cliff: I have reviewed a number of documents, court cases, and Tennessee statutes regarding the determination of residence for Ms. Shelley Breeding. The KGIS map below speaks for itself in identifying the residence issue. Knox County ?31 Ns. . 2 . . Breeding Residence 2 tc 1 5913 . -1 fy 9" 1 1 V. Anderson County County L|ne Ms. Breeding would like to qualify to seek the office of 'Tennessee House District No. 89 which is located in Knox County. No portion of Anderson County is located in District No. 89. Article II, Section 9 of the Tennessee Constitution provides the following: No person shall be a Representative unless he shall be a citizen of the United States, ofthe age of twenty-one years, and shall have been a citizen of this state for three years, and a resident in the county he represents one year, immediately preceding the election. [Emphasis added] Therefore, in order to meet the Tennessee Constitutional requirements, Ms. Breeding must be a resident of Knox County for one year preceding the election. Based upon the information provided to this office, 3805 Elizabeth Downs Lane, Knoxville, sits in both Anderson County and Knox County. The mailbox lies in Knox County. The house, however, sits wholly in Anderson County. Ms. Breeding pays property taxes on her residence to Anderson County. ln fact, this office has not been able to find any evidence that Ms. Breeding has paid any property taxes on her residence to Knox County. Ms. Breeding, by and through legal counsel, Tammy Kaousias, questioned the reliance on the KGIS maps and maps provided by Anderson County government officials. Although Ms. Breeding suggests that her house may sit in Knox County, she cannot provide a map or survey which proves that contention. She did provide a map from Zillow.com that depicts a small portion of her home in Knox County. However, further research on Zillow.com shows Anderson County to be the county of location (see attached). Consequently, the maps that have been filed in both Knox County and Anderson County are the only maps which can be relied upon by the election commission to determine residence. lt should be noted that local government GIS technology has been relied upon in the Tennessee Court of` Criminal Appeals. See State of Tennessee v. Jason R. McCallum, No. W2010-01075-CCA- R3-CD, 2011 Tenn. Crim. App. Lexis 325 (Tenn. Crim. App. May 5, 2011). Therefore, it is reasonable for the election commission to rely on maps provided by the respective county governments. Otherwise, voter redistricting, setting precinct boundary lines and qualification of candidates would be in a state of flux, complete chaos, and probably impossible to accomplish. Again through her attorney, Ms. Breeding points out she has been a registered voter in Knox County. However, Ms. Breeding should have been registered to vote in Anderson County based upon both the location of the county line and her dwelling. Ms. Breeding's attorney suggests that regardless of where the house is located, other factors listed in Tenn. Code Ann. 2-2-l22 should override the physical location of the home in establishing a residence. It is argued we should take into consideration the fact her cars are registered in Knox County, she works in Knox County, and she is involved in Knox County. However, in this situation, these factors are not as relevant as where the residence or dwelling place sits. There are persons who have multiple dwellings, live in the various dwellings at different times of the year or during different seasons in the year. Yet, both case law and statutory law conclude that a person may only have one legal residence. ln these situations, the factors and principles outlined in Tenn. Code Ann. 2-2-122 become critical and helpful in determining which of the multiple dwelling places constitutes the one residence of those individuals. Page 2 In Ms. Breeding's cse, she lives in one house which is situated in Anderson County. The factors of Tenn. Code Ann. 2-2-122 need not be used to determine Ms. Breeding's residence because her habitation and dwelling place is fixed in Anderson County. That Ms. Breeding has car tags registered in Knox County, is involved in IQ1ox County, works in Knox County, and has been mistakenly registered to vote in Knox County does not change the fact that Ms. Breeding's house is situated in Anderson County. Furthermore, although it is possible a court might apply Tenn. Code Ann. 2-2-122 to determine if someone running for office is eligible, in Asberry v. Garrett, Appeal No. 01-A-01-9511-C11 00515, i996 Tenn. App. Lexis 372, at *6-7 (Tenn. Ct. App. June 19, 1996), the court observed, "Tenn. Code Ann. 2-2-107 and 2-2-122 both fali within a chapter of the Code regulating voter registration in Tennessee, not candidate eligibility. Thus, they are inapplicable to this appeal." In Asberry, Deborah Garrett won a city election, but Everett Asberry contested the election on the grounds that Ms. Garrett did not reside in the city from which she was elected. Ms. Garrett owned a pharmacy in the city limits. She received mail at the pharmacy and listed the store on her driver's license. The pharmacy contained a living area. The record shows Mrs. Garrett had been very active in the city's civic, cultural, and reiigious affairs. Ms. Garrett also owned a farm house outside of the city limits. Ultimately, the court decided, without fully defining "residence," that the pharmacy living space was more akin to a break room and ruled her ineligible, because she was not a resident of the city and the farm house was her actual residence. Indeed, if the court does not apply Tenn. Code Ann. 2~2-122, the court may apply the principles laid out in Brown v. Hows, 42 210 (Tenn. 1931). in Brown, the court held that the term "residence" as used in a constitutional provision is uniformly construed as the equivalent to a domicile. The court accepted the definition of "domicile" as the following: That place where a man has his true, fixed, and permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning. Brown, 42 at 21 1-12. The court further opined: A person cannot live in one place and by force of imagination constitute some other his place of abode. The intent and fact, as already stated must concur. Brown, 42 at 212 (quoting State v. Savre, 105 N. W. 387, 388 (Iowa 1905)). The court held the person at issue was a resident of Williamson County and an illegal voter in Davidson County. Applying Brown and Asberry to these facts, it would appear that Ms. Breeding might not be a resident of Knox County for purposes of being eligible to run for the state house of representatives. in the alternative, should the court apply Tenn. Code Ann. 2-2-122 for qualifying candidates to run for office, it is still questionable as to whether Ms. Breeding is a resident of Knox County. Certainly, factors are listed in the statute for determining whether someone is a resident. However a person's "habitation" seems to be a dominant factor in deciding residence. Ms. Breeding argues that what really matters is not where the home is physically located but certain other factors, such as where Mrs. Breeding chooses to participate on boards, work, and register her vehicles. This conclusion, however, is contrary to the holding in Asberry. Page 3 Tennessee is surrounded by eight states. Hypothetically, suppose the map herein shown was of one of the eight states that border Tennessee. For example, person X's home is located in Kentucky but the mailbox is in Tennessee. Suppose person under penalty of perjury of law submitted a voter registration form affimiing they in fact resided in Tennessee. The election official relying on the information from the person and seeing a Tennessee address registers the individual to vote. Person works in Tennessee, serves on boards in Tennessee, and proceeds to register the vehicle he/she drives in Tennessee. However, person pays taxes on his or her home to Kentucky. Using the analysis supplied by Ms. Breeding, person would meet the residence requirement in the Tennessee Constitution and could be a candidate for the Tennessee Legislature even though his or her home is located in Kentucky. incidentally, the question has been raised as to what responsibility the election commission has regarding keeping non-qualified candidates off the ballot. Specifically, Op. Tenn. Att'y Gen. 02-032 (March 15, 2002) cites Tenn. Code Ann. 2-5-204 and states: It is the duty of each county election commission to place only qualified candidates on the ballot. Therefore, if a county election commission is aware that a candidate does not meet the qualifications for the office he/she seeks, then it is the duty of the commission to refuse to place that individual's name on the ballot. Furthermore, Op. Tenn. Att'y Gen. 82-312 (June 23, 1982) states: The county election commission has the duty to exclude from the ballot a potential candidate who is clearly unqualified, as would be the case if he had not resided in the district for one year immediately preceding the November election. Therefore, it is my opinion that in order to properly determine Ms. Breeding's qualifications, the Knox County Election Commission should petition the court to determine whether Ms. Breeding is a "resident" of Knox County for the purposes of being eligible to run for the state house of representatives. I am providing this advice because the Knox County Election Commission is in a no-win situation. Should the Knox County Election Commission place Ms. Breeding on the ballot, her candidacy will likely be challenged. ln the alternative, should the election commission not place Ms. Breeding on the ballot, her denial will likely be challenged. It is conceivable under the facts that the Knox County Election Commission could get sued either way the commission decides on this issue. Under these circumstances, it is better to receive the courts guidance on the front end of the issue. After the court's determination of these facts, the election commission can make a reliable decision regarding Ms. Breeding's qualification to seek the office of Tennessee House of Representative, District No. 89. I hope this guidance proves to be helpful to you. Should you have additional questions, please let me know. Sincerely, Mark Goins Coordinator of Elections Attorney-at-Law Page 4 3805 Elizabeth Downs Ln, Knoxville, TN 37931 - Zillow Page 1 0f2 Compare with public facts Garage sqft: 484 -- Edit hOl'|'lE facts 793 4/ I 1/20 2