Cook v. Board of Registrars

740 S.E.2d 223, 320 Ga. App. 447, 2013 Fulton County D. Rep. 787, 2013 WL 1092851, 2013 Ga. App. LEXIS 210
CourtCourt of Appeals of Georgia
DecidedMarch 18, 2013
DocketA12A1946
StatusPublished
Cited by2 cases

This text of 740 S.E.2d 223 (Cook v. Board of Registrars) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Board of Registrars, 740 S.E.2d 223, 320 Ga. App. 447, 2013 Fulton County D. Rep. 787, 2013 WL 1092851, 2013 Ga. App. LEXIS 210 (Ga. Ct. App. 2013).

Opinion

DOYLE, Presiding Judge.

In this discretionary appeal, Henry Cook appeals the trial court’s ruling that he is not a resident of Randolph County and therefore not an elector qualified to vote in that county. Because there is an absence of evidence to support a finding that Cook intended to remove his domicile to another jurisdiction, we reverse.

In an earlier proceeding,1 the Supreme Court of Georgia summarized the procedural history of this case as follows:

On October 25, 2010, after a hearing held pursuant to OCGA § 21-2-228, the Appellee Board of Registrars of Randolph County [the “Board”] ruled that Cook, who was then [448]*448serving on the Randolph County Board of Education, was not a resident of Randolph County and therefore was not an elector qualified to vote in that county. See OCGA § 21-2-216 (a) (4) (to vote in a primary or general election, a person must be a “resident of this [S]tate and of the county ... in which he or she seeks to vote”). Appellant appealed that ruling to the superior court, see OCGA § 21-2-228 (f), and filed a motion for an emergency hearing and a motion for stay and/or supersedeas, basing the motions in part on the ground that he had qualified to be on the ballot as a candidate for the School Board at the November 2, 2010, general election. Before the trial court ruled, Cook voted in and won the November 2 election; the following day, the court stayed the Board of Registrars’ ruling.
On November 29, 2010, the trial court issued an order directing that this case be tried with a separate case that Cook had filed against the Board of Elections of Randolph County, apparently after he learned that the elections board was contemplating filing a challenge to Cook’s qualifications as a candidate for the November 2 election based on the Board of Registrars’ ruling. On December 29,2010, however, the trial court announced that it was dismissing the lawsuit challenging Cook’s candidacy as moot because the election had already occurred. The court proceeded only with the hearing on the appeal of the Board of Registrars’ decision regarding Cook’s qualifications as a voter.
The trial court heard extensive evidence from both parties regarding Cook’s residency.[2] On April 15, 2011, the court entered an order concluding that Cook was not a resident of Randolph County and therefore was not an elector qualified to vote there.3

Cook now appeals that ruling.

“Findings of fact regarding voters’ residency shall not be set aside unless clearly erroneous, and due regard shall be given to the [449]*449opportunity of the trial court to judge the credibility of the witnesses.”4 Further, we note:

Wherever a form of the word “reside” occurs either in the statutes or in the constitution of Georgia with respect to voting, it should be construed to mean “domicile.”... [So t]he word “reside” here is used in the sense of “domicile.” This meaning of residence is consistent with the rules for determining residence in the sense of domicile in the Election Code. OCGA § 21-2-217[, which applies in this case].5

The determination as to domicile is a mixed question of law and fact normally for the factfinder, but it may become a question of law in plain and palpable cases.6

1. Cook contends that the trial court erred by concluding that the Board was authorized to remove him from the list of eligible electors of Randolph County. The genesis of this dispute arose when Cook, a life-long resident of Randolph County and an elected member of the Randolph County Board of Education, bought a house in Dothan, Alabama, after his Randolph County house, located on Howell Mill Road, burned down in October 2008.

There is no dispute that until the fire, Cook was domiciled in Randolph County at the Howell Mill house. At the hearing before the trial court, Cook testified that after his house burned, he stayed at his ailing mother’s house until his mother’s death in September 2009. In the interim between the house fire and his mother’s death, Cook purchased a house across the state line in Dothan, Alabama, in February 2009, and it is apparent that he spent some time there. Cook also testified that he also spent some portion of his time living at a house owned by his sister (or her heirs), located in Randolph County. In April 2009, Cook applied for a homestead exemption at his sister’s house, believing that he could claim it as his residence, but it was denied after the county property appraiser visited the property in July and early August 2009 and found it to be uninhabited.

As evidence that Cook had not resided in Randolph County since the time of the fire, the trial court found that the power company records showed no usage at Cook’s sister’s house from January to May 2009. Likewise, the city water records indicated no water use at the sister’s house from March 2009 to January 2010, when it was [450]*450switched to the name of Cook’s nephew. Cook testified that he allowed his nephew to move into the house while the nephew saved money for his own home. The trial court also noted that Cook failed to produce certain subpoenaed utility or bank records associated with his Dothan property.

Based on the evidence from the hearing, the trial court found that the Board was authorized to remove Cook’s name from the list of electors qualified to yote in Randolph County.

OCGA § 21-2-216 (a) (4) provides that no person shall vote in any election unless the person is, inter alia, “[a] resident of this [SJtate and ofthe county.. .in whichhe or she seeks to vote.” OCGA § 21-2-217 (a) provides the rules for determining residence for purposes of voting.7 These rules are as follows, in relevant part:

(1) The residence of any person shall be held to be in that place in which such person’s habitation is fixed, without any present intention of removing therefrom;
(2) A person shall not be considered to have lost such person’s residence who leaves such person’s home and goes into another state or county or municipality in this [S]tate, for temporary purposes only, with the intention of returning, unless such person shall register to vote or perform other acts indicating a desire to change such person’s citizenship and residence;
(4) If a person removes to another state with the intention of making it such person’s residence, such person shall be considered to have lost such person’s residence in this [S]tate;
(5) If a person removes to another state

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Bluebook (online)
740 S.E.2d 223, 320 Ga. App. 447, 2013 Fulton County D. Rep. 787, 2013 WL 1092851, 2013 Ga. App. LEXIS 210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-board-of-registrars-gactapp-2013.