November 12, 2001
Re: Vacancy by failure to meet residency requirement
Dear Sir,
As we discussed on Friday, a commissioner of your Town has moved to another state, although
he continues to attend commission meetings. It is my understanding that he owns a residence
in town, at which he has not resided for almost a year and which has not received any utility
services for several months. I am advised that when he returns to your Town for meetings he
stays at a relative’s house.
As you pointed out, Section 3 of the Charter is very clear that commissioners “shall remain
residents of the town on penalty of automatically forfeiting their offices.” The questions posed
are: (1) How is residency determined ?; (2) Is this provision of the charter enforceable? and,
(3) How to proceed to declare a vacancy.
State law specifies residency requirements for purposes of the Election Code in T.C.A.' 2-2-122.
The requirements apply to both voters and candidates for office, as T.C.A.' 2-1-103 provides “All
elections for public office, for candidacy for public office....shall be conducted under this title.” A
copy of T.C.A.' 2-2-122 is attached, as it is rather lengthy and practically all of the language is
relevant to your inquiry. You will note that residence is defined as “that place in which the
person’s habitation is fixed” which is only changed by “removal joined with the intent to remain in
another place.” T.C.A.' 2-2-122(a)(1)(2). The statute goes on to list factors to be considered,
such as the place of habitation of their spouse and family, location of occupation, place of
licensing or registration, and the purpose of the person’s presence in a particular place. T.C.A.'
2-2-122(a)(5) and (b)(1).
The Courts have considered the issue of residency for officeholders. In Bailey v. Greer, 468
S.W.2d 327 (Tenn. 1971), the Supreme Court determined that two justices of the peace had
changed their residency from the district in which each was elected, and were therefore no
longer eligible to remain in office. One of the justices in that case, Squire Harvey, set up
residence outside his district, although he spent most of his time at his elderly mother’s
residence within the district. Squire Harvey continued to receive his mail and farm his land in the
district. Mrs. Harvey testified that she and her husband lived together in their home in Dunlap,
outside the district, and referred to their house in the district as “the other house.” The Court
found that Squire Harvey had moved his residence outside the district, and was no longer able
to hold office.
The Court did not rely on T.C.A.' 2-2-122 in the Bailey v. Greer opinion, but the statute and case
are consistent. One must look at the specific facts surrounding a person’s living situation to
arrive at a determination of whether that person has moved their residence.
The residency requirement is enforceable for candidates and office holders. The U.S. District
Courts found the prior version of the law, which required one year of residency in a district prior
to receiving the right to vote, to be unconstitutional in its application to voters. Blumstein v.
Ellington, 337 F.Supp. 323 (M.D.Tenn. 1970). No such finding has been made regarding the
application of such requirement to candidates and office holders, so that provision of your Town
charter is enforceable.
The charter provides that if a commissioner moves his residency outside the Town, he does so
“on penalty of automatically forfeiting [his] office.” Section 3. No enforcement measures are
required to declare the office vacant if a candidate moves his residence. I believe you are
correct that a resolution adopted by the Commission will be sufficient. Be aware, however, that
he will have the right to challenge the action in Court, as the determination of whether a person
has changed their residency is factual issue. Persons aggrieved by the application of statutory
rules based on factual analysis are entitled to have a jury hear those facts to determine if the law
should be applied.
I hope this is helpful. Please let me know if you need further information.
Sincerely,
Melissa A. Ashburn
Legal Consultant