FROM:
DATE:
Sid Hemsley, Senior Law Consultant
July 15, 2008
RE: Questions
You have the following questions from the City:
1. What are the residency requirements for city councilmen, and how do council members, or candidates for council “prove” their residency?
It appears to me that the residency requirements for city council members are found in
Article IV, ' 8 of the City Charter, as follows: “The City Council may, by resolution, declare a vacancy in the Office of Mayor or on the City Council if either the Mayor or a Councilman resigns, dies, moves his residence from the city ....”
The strong implication of that provision requires the mayor and city council member to be residents of the city while they are serving in those positions. as a mayor or city council member.
In addition, Tennessee Code Annotated, ' 8-48-101 provides that:
Any office in this state is vacated by:
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(3) Ceasing to be a resident of the state, or of the district, or county for which the incumbent was elected or appointed.
At first glance that statute arguably does not apply to municipal offices. However, because it applies to “Any office in this state....” it probably does apply to municipal offices.
The determination and “proof” of residency is not necessarily easy in some cases. For the purposes of the election code of the state, residency is determined by Tennessee Code Annotated, section 2-2-122, a copy of which is attached. That is true with respect to both voters and
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candidates for office. Tennessee Code Annotated, section 2-1-102, says that “The purpose of this title is to regulate the conduct of all elections by the people....” In addition, Tennessee Code
Annotated, section 2-1-103, says that “ All elections for public office, for candidacy for public office, and on questions submitted to the people shall be conducted under this title.” Tennessee
Code Annotated, section 2-5-204, provides that “Each qualified candidate’s name shall be placed on the ballot as it appears on the candidate’s nominating petition....” For that reason, where a residency qualification attaches to an office under a statute or charter, Tennessee Code
Annotated, section 2-2-122, applies on questions of residency.
The Tennessee courts have also spoken with respect to what constitutes residency for officeholders. In Bailey v. Greer, 468 S.W.2d 327 (Tenn. 1971), a Tennessee constitutional and two statutory provisions provided that justices of the peace who “removed” from the districts in which they were elected vacated their offices. Two justices of the peace of the Sequatchie County
Court moved from the district in which they were located but continued to serve on the county court. At the time of his election, Squire Bailey lived in a house on land in the community of
Daus, which was located in the Sixth Civil District. During his term he married, and he and his wife bought a residence near Dunlap, which was located in the Fourth Civil District. However, he continued to vote at Daus and to receive his mail there. He also did some farming and gardening at his home in Daus, left some furniture and clothing at his house there, and spent an occasional night in the house. On cross examination, he testified as follows:
“Q. Where did you take your meals and sleep during that time?
A. At home.
Q. That’s right, at home here in Dunlap that you referred to just north of town, that’s right, isn’t it, and you’ve considered that your home and everybody in the county knows it, isn’t that true?
A. No, it isn’t.
Q. I know you maintain and everybody knows you maintain another home, all I’m saying is a home where a man lives and that’s where you nodded your head northward on the stand just now, didn’t you?
A. I guess so.”
During the time in question Squire Bailey told several people he lived in Dunlap. In her testimony, Mrs. Bailey referred to the place in the Fourth Civil District near Dunlap as “home” and referred to the place at Daus as “the other house.”
At the time of his election, Squire Harvey and his wife lived on a farm owned by Ms.
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Harvey which was located in the Seventh Civil District. Squire Harvey also maintained a farm that had no house on it, and which was also located in the Seventh Civil District. His mother’s house was also located in the Seventh Civil District. During Squire Harvey’s term, Ms. Harvey sold the farm and the Harveys moved into a house Mrs. Harvey bought in Dunlap, which was located in the Fourth Civil District. However, after the move Squire Harvey spent most of his time at his mother’s house because she was 87 years old and needed constant attention; he also continued to get some of his mail there. In addition, he still continued to farm his land in the
Seventh Civil District. Mr. Harvey was in the hospital and did not testify, but Ms. Harvey testified that she lived in the Town of Dunlap, and that she and Squire Harvey continued to live there as husband and wife.
The question of whether the justices of the peace had removed from the districts in which they were elected was a question of fact, said the Court. Cases in which the words “residence” and “domicile” had been construed for the purpose of determining situs of personal property for taxation or administration of a decedent’s estate or for determining jurisdiction in divorce cases
“do not furnish appropriate guidelines which we can follow for the purpose of determining whether or not a justice of the Peace has vacated his office “by removal” from the District wherein he was elected.” [At 335.] There were no Tennessee cases on point, but cases in other estates with similar statutes “have held that under such statutes ‘removal’ is a ‘change of place, especially of habitation.” [Citations omitted.] [At 335.] Under the facts in this case, concluded the Court, the two justices of the peace had removed from the district within the meaning of the statutes.
Tennessee Code Annotated, section 2-2-122, lists the factors from which a determination of residence is made. The fixed star in all of them is the “residence” of the person in question.
Factor (1) is, “The residence of a person is that place in which the person’s habitation is fixed, and to which, whenever the person is absent, the person has a definite intention to return.”
Although Tennessee Code Annotated, section 2-2-122, was not an issue in Bailey, that statute and case are entirely consistent; the latter gives one a good idea of what facts the court will look at to determine one’s “habitat.”
But in some cases, an officeholder may move outside the city for one reason or another without affecting his fixed habitation and his intention to return. For example, if his house in the city burns down, he may temporarily move outside the city to, say, the house of a relative or friend, but have every intention of returning as soon as his house in the city is rebuilt, or he builds a new house there. Whether or not a person removes his residency from a place is highly fact dependent.
2. Must a city council member resign from the office to run for the office of mayor?
There appears to be no doubt that it is constitutional under the U.S. and Tennessee
Constitutions for the General Assembly to adopt what the U.S. Supreme Court called ”resign to run” general laws or private acts. [See in particular Clements v. Fashing, 457 U.S. 957 (1982).]
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Those statutes, in various ways, prohibit an officeholder from running for another office while he holds his present office. However, the problem with what is ostensibly such a provision found in Article III, ' 4 of the City Charter is that it isn’t clear that it is a resign to run provision. It provides simply that, “However, no person shall be eligible for qualification for city council who holds any other public office under either federal, state, county, or city government.” Most resign to run provisions expressly provide that a person who wishes to be a candidate for a certain office is not qualified to run for that office if he holds any other certain public offices, or certain public offices, the consequence of which is that the person must resign from his present office before he can run for the office he seeks. Article III, ' 4 does not clearly do that. It is obvious that it can be read that way. But it can also be read to mean that person seeking the office of city council member is not qualified to hold that office, the corollary of which is that he could resign from that public office before either being elected, or appointed to, the office of city council member.
Under Tennessee’s Rules of Statutory Construction, when a statute is ambiguous, those rules are triggered to resolve the ambiguity. Those rules have appropriately been called “dealerschoice” law; the courts can pick and apply the particular rules of statutory construction that produce a certain result. But because Article III, ' 4 can be read two ways, it appears ambiguous.
Two of those rules of statutory construction are that the intention of the General Assembly is the cardinal rule in interpreting statutes, and the second is that statutes will be given a plain reading.
It can certainly be argued that it was the intent of the General Assembly that Article III, ' 4 be read to mean that a person could not run for another public office while he holds one of the other public offices listed in that statute. But, as pointed out above, a contrary intent can still be found in the statute. For that reason, it does not appear to me that a plain reading of that statute resolves the ambiguity.
One of the rules of statutory construction deals with the question of whether a statute will be strictly or liberally construed. I have been unable to find any case in Tennessee where that rule has been applied to a statute dealing with the eligibility of a person for election or appointment to an elective office. But in Tennessee, the right to become a candidate for public office, as well as to vote, is a property right. [See Joyner v. Browning, 30 F.Supp. 512 (W.D.
Tenn. 1939).
As we shall see below, essentially the same doctrine exists in other states. In those states, the question of whether a statute dealing with the eligibility of a candidate for public office should be strictly or liberally construed has often arisen, and the universal rule is that such statutes are liberally construed in favor of the candidacy (or strictly construed if the restriction in the statute is considered to be a disqualification). In City of Miami Beach v. Richard, 172 So.2d
480 (Fla. App. 1965), says:
The rule of [statutory] construction applicable under the circumstances is succinctly stated by the Supreme Court of Florida in the case of Ervin v. Collings, (Fla. 19567) 85 So.2d 852, 853, in
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which the court says in dealing with the eligibility of a candidate:
A * * * to hold one ineligible to run for office where neither the constitution nor the statute does so in express terms is contrary to every democratic precept.’
‘Moreover, in the same case the Court says if there is a doubt as to the eligibility of the candidate,
A * * * under every accepted rule of interpretation, the doubt or ambiguity must be resolved in favor of eligibility * * *’ [At 481-
82]
It is said in Jarnigan v. Harris, 226 S.W.2d 108 (Ga. App. 1976), that:
Inasmuch as these statutes limit an individual’s right to hold office they must be construed broadly in favor of those seeking office.
Gazan v. Heery, 183 G. 10(54), 187 S.E.2d 371. ‘(T)he right of a citizen to hold office is the general rule, ineligibility the exception; and therefore a citizen may not be deprived of this right without proof of some disqualification specifically declared by law. ‘Patten v. Miller, 190 Gs. 123, 139, 8 S.E.2e 757, 769. [At 109]
Similarly, Velazquez v. Soliz, 490 N.E.2d 1346 (Ill.App., 1 Dist. 1986), says that:
Illinois courts have held that the right to hold office is a valuable one. The exercise of the right should not be prohibited or curtailed except by plain provisions of the law. Statutes imposing disqualification should be construed liberally in favor of eligibility
, and every doubt must be resolved in favor of eligibility.
Livingston v. Olgilivie (1969), 42 Ill.2d 9, 250 N.E.2d 138. [At
1350]
There are other cases that reach similar results, but I will mention only one more: In
Gilbert v. Breithhaupt, 104 P.2d 183 (Nev. 1940), the court conceded that a statue dealing with the eligibility of a candidate for office could be read two ways, and it pointed to cases supporting each interpretation. But it came down on the side of the interpretation that supported the eligibility of the candidate, declaring that:
The right to hold public office is one of the valuable rights of citizenship. The exercise of this right should not be declared prohibited or curtailed except by plain provisions of law.
Ambiguities are to be resolved in favor of eligibility to office. In
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I could be wrong on how the courts would interpret the provision in Article III, ' 4, at issue. But the above cases should be sufficient to cause great concern on the part of the City about how it will be interpreted. For that reason, I advise the city to amend that provision and make clear what it means.
Carter v. Commission on qualifications of J.A., 14 Cal.2d 179, 93
P.2d 140. In 46 C.J., at p. 937, ' 32, it is said: “Statutes imposing qualifications should receive a liberal construction in favor of the right of the people to exercise freedom of choice in the selection of officers. Furthermore, disqualification provided by the legislature are construed strictly and will not be extended to cases not clearly within their scope. * * * .” [At 184]
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