Matter of Evrard

333 N.E.2d 765, 263 Ind. 435

• Court: Indiana Supreme Court
• Decided: September 5, 1975
• Docket: 1172S154
• Status: Published

Opinions

DeBruler, J.

This original action was presented to this Court by a Petition for Removal of the respondent Judge of the Perry Circuit Court. This Court assumed jurisdiction of the case under authority vested in this Court by Art. 7, of the Indiana Constitution. Following our acceptance of the case, respondent challenged our jurisdiction. In In re Evrard (1974), 263 Ind. 423, 317 N.E.2d 841, this Court rejected that challenge and appointed a judge pro tempore of the Perry Circuit Court to serve until final resolution of the case. The Court also appointed a successor hearing officer and a special prosecutor to serve in the case. On January 30, 1975, respondent filed a response to the Petition for Removal.

The successor hearing officer, the Honorable Saul I. Rabb, conducted a hearing upon the petition and filed his special Findings of Fact with us on March 7, 1975. Respondent addressed several motions to this Court, which we deem unnecessary to rule upon in light of the decision we make today.

The Petition for Removal is based in part upon alleged violations of the election laws, occurring in the season of the 1970 Primary Election at which respondent was a candidate. The first charge is that respondent filed a declaration of candidacy for the office of Judge of the Perry Circuit Court with the Clerk of the Perry Circuit Court on March 7, 1970, and with the Secretary of State on March 16, 1970, in which he knowingly made the false statement that he was a qualified voter and resident of Perry County, Indiana, in violation of Ind. Code § 3-1-32-48, being Burns § 29-5948.¹

The second charge is that respondent unlawfully voted, and aided and abetted his wife in unlawfully voting, in the Primary Election on May 5, 1970, in that at the time of the Primary Election respondent and his wife were legal residents of the State of Virginia, in violation of Ind. Code § 3-1-32-10, being Burns § 29-5910,² and Ind. Code § 35-1-29-1, being Burns § 9-102.³

The third charge is that on May 5, 1970, respondent passed from, and aided his wife in passing from, the State of Virginia into the State of Indiana, and voted in the May 5th Election, while neither was a bona fide resident of the voting precinct, in violation of Ind. Code § 3-1-32-13, being Burns § 29-5913.⁴

The fourth charge is that respondent conspired with his father, Fred J. Evrard, for the purposes of committing the three offenses enumerated above, in violation of Ind. Code § 35-1-111-1, being Burns § 10-1101.⁵

The substance of petitioners’ case is that respondent had no legal residence in Perry County at the time he filed his sworn declaration of candidacy, and that neither respondent nor his wife had legal residences in that county at the time they voted on May 5, 1970. It was petitioners’ belief that at said times, both were residents of the State of Virginia. It is a fact that both respondent and his wife registered to vote on March 7, 1970, in Perry County, and it therefore follows that both were registered to vote on the date respondent filed his declaration and on the date both voted in the Primary. There is no allegation made in this case that respondent did establish a legal residence in Perry County prior to the Primary, but that such residence was insufficient in duration to qualify as a legal residence for candidacy and voting purposes. Rather, petitioners contend that no residence at all was established by respondent and his wife prior to the Primary Election. We accept this posture of the case and do not consider the requirements of the law, if any there be, that preprimary residence be of any particular duration. If respondent and his wife had a bona fide residence at the date of filing the declaration and voting, then those acts would not be unlawful. If, on the other hand, respondent and his wife did not have a bona fide residence on those dates, his acts would have involved false statements, and the existence of such statements would give considerable support to petitioners’ contention that this Court should subject respondent to disciplinary action. Upon these assumptions, we proceed to consider this case.

In Pedigo v. Grimes, (1887) 113 Ind. 148, this Court considered the legal requirements for establishing a voting residence. The law requires that the person definitely intend to make a particular place his permanent residence and act upon that intention in good faith. The person must show to the court evidence of acts undertaken in furtherance of the requisite intent, which make that intent manifest and believable. Whether or not a person meets the residency requirement for voting is a contextual determination to be made by a court upon a consideration of the individual facts of any case. While one is probably limited to having a single residence for voting purposes at any given time, the fact that he has more than one “residence,” or place of abode, in which he has substantial investment, social commitment, and interest, and which is useful for any number of purposes, is only one relevant fact among many others to be considered by a court. Brownlee v. Duguid, (1931) 93 Ind. App. 266, 178 N.E. 174. Conduct such as the abandonment of a prior residence and contemporary statements of intention to establish a new principal residence are to be considered also. Brittenham v. Robinson et al., (1897) 18 Ind. App. 502.

In the late Fall of 1969, the then incumbent Judge of the Perry Circuit Court announced his intention to resign his judgeship effective January 1, 1970. During Thanksgiving and Christmas visits to Tell City, respondent was asked to run for the judgeship at the next General Election. He discussed this matter with friends and Democratic Party officials and, early in January, 1970, decided to run for the office. He immediately discussed the purchase of a house in Tell City with a realtor and asked the realtor to look for a house for him to buy. On February 10, 1970, respondent publicly announced his candidacy for the office of Judge and his intention to return permanently to Perry County. Both respondent and his wife registered to vote in Perry County on March 7, 1970, claiming 914 Eleventh Street, Tell City, as their residence. On March 11,1970, respondent signed the declaration of candidacy under oath, and, on March 16, 1970, he filed it with the Secretary of State of Indiana.

Respondent and his wife returned periodically to Tell City during the months of January, February, March and May, 1970. In April, respondent obtained an estimate of the cost of moving his furniture to Tell City. In that same month, he resigned as patent attorney at the U.S. Department of Justice, but was offered and assumed a contractual relation with that Department from April, 1970 to July, 1970, for the purpose of winding up his work.

At an earlier time, in the year 1965, respondent had purchased an airplane and his visits to Tell City had become more frequent. This airplane and a newer airplane which was purchased in 1967, had been registered with the FAA giving the address of the respondent at Tell City. From 1954, when he graduated from Purdue through July, 1970, at which time he completed his move to Perry County, respondent was absent from the State of Indiana by reason of his military service and his employment with the U.S. Government. Respondent and his wife traveled from Virginia to Tell City on May 3,1970, and voted on May 5th.

Most of the foregoing facts tend to support the formation of an intent to establish a residence in Tell City at the times relevant here, coupled with acts in furtherance thereof. The respondent made several public statements and commitments to run for office, which clearly were an expression of an intent to establish a residence in Tell City at the home of his parents. These statements did not stand alone. He took overt steps to sever his connections in Virginia and Washington, D.C., and to move to Tell City. On the other hand, the evidence also established that respondent owned a house in Virginia and that his new wife’s children were in school there and that the cars and driver’s licenses of both respondent and his wife reflected their residence in Virginia, even up to the time of the Primary Election. We believe, however, that respondent’s position was that he had substantial commitments and responsibilities in Virginia and Washington, D.C., as a lawyer, step-father, husband, homeowner, pilot and driver at the time he decided to become a candidate for Judge in Perry County and to establish a residence there. To require a person in respondent’s position to have sold his house in Virginia and acquired one in Tell City, given up his employment abruptly and entirely, moved his wife’s children from their school to Indiana, obtained an Indiana driver’s license, and accomplished all such other odds and ends as would have severed completely all connections with Virginia and the Washington area, as a condition of establishing a residence in Indiana, would be unreasonable. No such absolute assurance of a voter’s township and precinct residence is required to protect the integrity of the election process. Here the evidence shows without question that respondent formed the intent to establish a residence with his parents until he could sell his house in Virginia and buy another one in Perry County. The fact that the residence with his parents was intended to be for a limited period only is not decisive. Pedigo v. Grimes, supra. Both respondent and his wife were bodily present at that place periodically during the months of January, February, March and May. Both conducted themselves in Indiana and Virginia in a manner consistent with their expressed intent to move to Perry County. The steps which they took were sufficient to establish a residence at the home of his parents and to qualify them to register, declare candidacy, and vote in the Primary Election. No false statement is therefore shown to have been made in the declaration of candidacy or to be implied from the act of voting, as respondent had registered to vote and had established a residence at the home of his parents in Tell City.

Upon consideration of the charge that respondent aided and abetted his wife in violating the election laws in the manner described above, we find that the same legal test of residence should be applied to determining whether or not respondent’s wife established a voting residence at the home of her husband’s parents. It would appear to us that Margaret Evrard had the right to choose to adopt the voting residence of her husband. By reason of this voluntary choice and her marriage to respondent, she was entitled to claim the benefit of his connections with his parents’ home. We therefore find that the evidence is insufficient to support any conclusion that respondent aided and abetted his wife in unlawfully violating the election law or conspired with his f ather to so violate the law.

The final part of the Petition for Removal is based upon the allegation that respondent unlawfully aided and abetted his wife, Margaret, in the commission of the felony of Bigamy, as defined in Ind. Code § 35-1-81-1, being Burns § 10-4204:

“Whoever, being married, marries again, the former husband or wife being alive, and the bond of matrimony still undissolved, and no legal presumption of death having arisen, is guilty of bigamy. . .

The facts relating to this charge show that on December 29, 1969, respondent married Margaret Buckler. At that time Margaret Buckler had a living husband from whom she was not divorced. She had been informed from some unspecified source that her husband had been killed or had died in Vietnam. After the marriage, she learned that her husband was in fact living. She thereupon secured a divorce from him, and she and respondent were remarried.

The hearing officer found that respondent had no knowledge at the time of his marriage that Margaret’s husband was still living. He had been told by her that her husband was dead, and, according to the findings of fact, he believed that he was dead, although he did nothing to verify the information she had given him. Under these facts, we cannot conclude that respondent acted unlawfully when he married Margaret on December 29,1969.

The appointment of the judge pro tempore for the Perry Circuit Court is hereby ordered terminated, and David E. Evrard is hereby authorized and instructed to reassume the functions and duties as regular Judge of the Perry Circuit Court.

Givan, C.J., and Prentice, J., concur; Hunter, J., dissents with opinion to follow; Arterburn, J., not participating.

1 . “Any person who shall . . . file any declaration of candidacy, certificate or petition of nomination, knowing the same, or any part thereof, to be falsely made . . . shall be deemed guilty of a felony.”

2 . “Whoever, not having the legal qualifications of a voter who is duly registered and authorized to vote as he represents himself to be, or whoever falsely represents himself as a voter at any election authorized by law to be held in this state for any office whatever, votes or offers to vote at such election, shall be guilty of a felony.”

3 . “Every person who shall aid or abet in the commission of a felony . . . may be . . . convicted in the same manner as if he were a principal . . . and, upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.”

4 . “Whoever passes from any other state into this state, and votes or attempts to vote at any voting precinct or ward of this state, not being at the time a bona fide resident of such voting precinct or ward, shall be guilty of a felony.”

5 . “Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony, within or without this state; or any person or persons who shall knowingly unite with any person or persons, body, association or combination of persons, whose object is the commission of a felony or felonies, within or without this state, shall, on conviction, be fined not less than twenty-five dollars nor more than five thousand dollars, and imprisoned in the state prison not less than two years nor more than fourteen years.”