Friday, December 23, 2011

Did Court Miss Statute Dealing With "Nontraditional Residences" In Deciding White Case?

Secretary of State Charlie White
I have to give credit where credit is due.  Doug Masson, an attorney who runs the excellent blog, Masson's Blog, does an excellent summary of Marion County Judge Louis Rosenberg's opinion that concludes that Secretary of State Charlie White was  not eligible to be elected Secretary of State because he was not legally registered at his ex-wife's house.  In the process, Masson does some research and hits on a statute that appears to have been overlooked by the parties, or at least was not discussed in the opinion.  Before looking at that statute, let's first review the residency statute that is at the heart of the Charlie White case:
IC 3-5-2-42.5: “”Residence” means the place (1) where a person has the person’s true, fixed, and permanent home and principal establishment; and (2) to which the person has, whenever absent, the intention of returning.”
Judge Rosenberg concluded that White had moved out of the apartment but had not moved into the condo.  However, he said White's stay at the ex-wife's house could not have been his residence because he was only there temporarily awaiting the move to the condo. As I have argued, by law everyone has a residence and the only residence White could possibly have claimed is his ex-wife's house where the facts are he was living. 

Attorney Masson though raises another issue, the possible applicability of a statute not discussed in Judge Rosenberg's opinion.  That statute is IC 3-5-5-18:
 “Notwithstanding IC 3-5-2-42.5, an individual with a nontraditional residence whose residence is within a precinct, but is not fixed or permanent, resides in that precinct.”
That seems to deal exactly with the facts of White's living situation.  The statute says that even if he is staying temporarily at his ex-wife's house, he is a resident in that precinct.   And that is precisely where White registered to vote.


Cato said...

If opposing counsel didn't raise this rather obvious statute, there are some large ethical concerns for the judge to consider. This statute appears dispositive, and it's inconceivable that it was innocently missed.

artfuggins said...

Then could White have simply parked his car in the precinct and claimed that he was living in the car? While not a legal basis, it is hard to believe that new wife was letting him return to the ex-wife's condo to "sleep".

Pete Boggs said...

No Art, the SS candidate couldn't pull off the live in car thing, as he wasn't pursuing a pop music career (Jewel). Would "ethical concerns" for the judge be somehow dispositive of a partisan free profile?

Doug said...

I have no idea how the briefing went; but if White was claiming that Broad Leaf was his permanent residence, then he wouldn't necessarily have cause to raise the temporary residency statute. And, if Parker was claiming that Overview was White's residence, then he wouldn't have cause to cite the temporary residency statute; particularly in the face of White's claim that he was a permanent resident at Broad Leaf.

So, I wouldn't be in a hurry to conclude that anybody did something wrong by not focusing on that statute even if it ends up being the most applicable.