Oglesby v. Williams

BELL, Chief Judge. The issue this case presents for resolution is whether the Circuit Court for Worcester County correctly concluded that the appellant, Beau H. Oglesby, failed to meet the eligibility requirements to run for State’s Attorney for Worcester County in the November 2002 general election. After oral arguments before this Court, we issued an order affirming the judgment of the trial court.. We now set forth the reasons for that order.

I. On December 14, 2001, the appellant filed a certificate of candidacy with the Worcester County Board of Elections, thus indicating his intention to be a candidate for election to the office of State’s Attorney for Worcester County. Shortly thereafter, in January of 2002, questions began to be raised by members of the media concerning whether the appellant met ³⁶⁵ the constitutional eligibility requirements, see Article V, § 10, of the Constitution of Maryland, 1 i.e., whether he had “resided for at least two years, in the county, or city, in which he may be elected.” One of the appellees, 2 William G. Williams, 111, a registered voter and Chairman of the Worcester County Democratic State Central Committee, was aware of the issue as evidenced by his comments quoted in The Dispatch/Maryland Coast Dispatch, “[w]e’re certainly keeping an eye on the situation, but we haven’t formally requested an investigation into [Mr. Oglesby’s] residency requirements.” 3 4 More than four months after making those remarks, the appellee tiled in the Circuit Court for Worcester County a Complaint for Declaratory Judgment, challenging the appellant’s eligibility to run for State’s Attorney for Worcester County and seeking to have his certificate of candidacy declared void. In response, the appellant filed a Motion to Dismiss the Complaint for Declaratory Judgment, arguing that the action was untimely. He maintained, citing Maryland Code (1957, 1997 Repl.

Vol., 1998 Supp.) Article 33, § 12-202(b), 4 that, ³⁶⁶ because the appellee had knowledge of the predicate fact for his judicial challenge as early as January 25, 2002 when he was quoted on the subject in The Dispatch/Maryland Coast Dispatch, he had ten (10) days to file an action challenging the appellant’s candidacy. Noting that the appellee did not file his action within that 10-day time period, the appellant concluded that the appellee’s action was time-barred and, thus, could not challenge his candidacy. The trial court denied the appellant’s Motion to Dismiss. Nevertheless, Mr. Williams filed an amended Complaint adding as an additional plaintiff, Frances Sturgis, the other appellee.

Following trial, the Circuit Court rejected the appellant’s argument that this action was controlled by the Election Code, Article 33, §§ 12-201 et seq., thus, confirming its prior ruling that the declaratory judgment action was timely filed. The court also found that two days before being added as a party, Ms. Sturgis had no knowledge of the lawsuit or of the appellant’s residency qualifications. The court viewed the issue to be resolved solely as involving the question whether Mr. Oglesby met the constitutionally imposed residency requirements for the office of State’s Attorney and, thus, qualified to run for that office. On that issue, the appellant admitted that he had been domiciled in Wicomico County for a period of time beginning in December 1995, until some point in 2000.

He argued, however, that his purchase of real property in Worcester County, coupled with his intention to be domiciled there, effectively established his residency within the two-year period prescribed by Article V, Section 10 of the Maryland Constitution. In the alternative, he submitted that the constitutional provision at issue permit ³⁶⁷ ted him to tack prior periods of residency in Worcester County to his current residency to satisfy the two-year residency requirement. The Circuit Court rejected both arguments, holding that the “[constitutional requirement for residency is a strict rubric [and] ... [w]hile the precise words are not within the constitutional provision, a candidate for the office of State’s Attorney must live for two years immediately prior to the election within the county in which he or she runs.” Considering and weighing the factors for resolving questions of residency identified by this Court in Bainum v. Kalen, 272 Md. 490, 499 , 325 A.2d 392, 397 (1974), the court then concluded that Mr. Oglesby failed affirmatively to demonstrate that he had changed his domicile to Worcester County prior to November 5, 2000, two years prior to the election in which the appellant intended to run as a candidate. The Circuit Court declared that Mr. Oglesby did not meet the constitutional eligibility requirements to run for the Office of State’s Attorney and, consequently, ordered that Mr. Ogles-by’s name not be placed on the November 5, 2002 General Election Ballot for that office.

The appellant noted an appeal to the Court of Special Appeals, and this Court issued, on its own initiative, a writ of certiorari prior to proceedings in that court. Oglesby v. Williams, 370 Md. 268 , 805 A.2d 265 , 2002 Md. Lexis 579 (2002).

II

We set out the facts as gleaned from the trial court’s opinion to guide our review of this case. The appellant graduated from the University of Baltimore Law School in 1994 and is currently licensed to practice law in the State of Maryland. From February 1995 until September 1995, he resided, under a six-month lease, at 24’/¿ 48th Street in Ocean City, Maryland, where he received his mail. During this seven-month period, the appellant was working full-time, in Wicomico County, as a law clerk in the Wicomico County Circuit Court in Salisbury, Maryland.

In addition, the appellant worked part-time in Worcester County, at a retail outlet ³⁶⁸ in Ocean City, Maryland. He was not registered to vote in either Wicomico or Worcester County. Until December 12, 1995, the appellant was registered to vote in Prince George’s County. In September 1995, the appellant relocated to Wicomico County, where he practiced law.

Within a few month of relocation, he registered to vote in Wicomico County. After four years of residing in Wicomico County, he and his wife, in the spring of 2000, decided to relocate in Worcester County. After appellant’s wife changed her primary working area to Worcester County, the Oglesbys engaged a realtor to help find a suitable home in Worcester County for purchase. Their attempts to find a suitable home that fit their needs having proved unsuccessful, the couple bought a parcel of land, located at 50 Capetown Road, Ocean Pines, Maryland, on which to build a permanent residence.

In July of 2000, the contract for purchase of the lot was executed and the couple tendered an earnest money deposit. On September 5, 2000, the Oglesbys closed on the lot and the construction financing and construction began almost immediately. The appellant listed his Wicomico County residence as his address oh the deed. Throughout the construction period, the appellant made almost daily trips to the construction site to inspect the progress of the construction.

Although the bulk of his mail was still being delivered to his Wicomico County address, he arranged to receive mail relating to insurance and the bank loans for the Ocean Pines property at the Ocean Pines address. The appellant paid water and sewer fees on his new home while it was under construction. In addition, he paid home-owner association dues to the Ocean Pines Association and property taxes to Worcester County. At the same time, the appellant paid taxes in Wicomico County.

During this period, he remained a member of the Wicomico County Bar Association, but did not join the Worcester County Bar Association. As he had done while a resident of Wicomico County — the court found that the appellant had voted in most of the primary and general elections in Wicomico County — the appel ³⁶⁹ lant voted in the November 7, 2000 general election in Wicomico County. In order to vote in Wicomico County, a voter, upon registering to vote, must sign an oath attesting to residency in Wicomico County. 5 The appellant did not change his driver’s license and voter registration, expressly evidencing his Worcester County residence, until April of 2001. 6 The certificate of occupancy for the appellant’s Worcester County home was issued on December 18, 2000. The Oglesbys moved into the Worcester County home on December 20, 2000, and they have since lived there continuously.

The trial court concluded that the “evidence conclusively demonstrates that [Wicomico County was the appellant’s] domicile, and the question before this court is whether the domicile ended — and, consequently [the appellant’s] Worcester County domicile began — on September 5, 2000 when [the appellant] closed on property in Worcester County, or whether [the appellant’s] domicile changed following November 5, 2000, the date that [the appellant] would have to domicile in Worcester County in order to be eligible for the office of State’s Attorney.” III. In this Court, the appellant makes three arguments in urging this Court to reverse the judgment of the trial court: ³⁷⁰ that, pursuant to the Election Code, Article 33, §§ 12-201 et. seq., the challenge, by the appellees Williams and Sturgis, to the appellant’s candidacy was time-barred; that the appellant, due to the special circumstances of his relocation to Worcester County, fully complied with the residency requirements of the State Constitution; and that, by tacking his prior period of Worcester County residency to his current residency, the appellant fully complied with the residency requirements of the State Constitution. We reject each of those arguments. A. To be sure, § 12-201 makes the provisions of the subtitle pertaining to judicial challenges of contested elections applicable “to an issue arising in an election conducted under” the Election Code.

One such issue arguably is the timeliness of a challenge to a candidacy, pursuant to § 12-202(b). As we have seen, that provision permits a registered voter to “seek judicial relief ... in the appropriate circuit court -within the earlier of: (1) 10 days after the act or omission or the date the act or omission became known to the petitioner; or (2) 7 days after the election results are certified, unless the election was a gubernatorial primary or special primary election, in which case 3 days after the election results are certified.” There is evidence that the appellee Williams was aware of the issue of the appellant’s eligibility to run for State’s Attorney some four months prior to filing the declaratory judgment action. Nevertheless, we shall again not reach the issue. 7 At oral argument in this Court, counsel for the appellant conceded that if the addition of Ms. Sturgis as a plaintiff was ³⁷¹ proper, then the applicability of the Election Code would be a moot issue. Resolution of that question is governed by Maryland Rule 2-212.

That rule provides for the permissive joinder of parties in Circuit Court when a “person asserts a right to relief jointly, severally or in the alternative in respect to or arising out of the same transaction, occurrence or series of transactions or occurrences, and if any question of law or fact common to all these persons will arise in the action.” The evidence at trial indicated that the joinder of Ms. Sturgis as a plaintiff was a hotly contested issue, with both sides producing evidence in support of, and by way of challenge to, her permissive joinder. Counsel for the appellant challenged the evidence offered by the appellees to establish that Ms. Sturgis did not have disqualifying information within the relevant time period, arguing strenuously that Ms. Sturgis had to have known of the dispute regarding the appellant’s residency more than 10 days before she was added as a plaintiff in the declaratory judgment action. Moreover, Ms. Sturgis was subjected to cross-examination by counsel for the appellant. The trial court found that Ms. Sturgis, a registered voter since 1940, was added as a plaintiff only two days after learning of the appellant’s challenged residency status.

We “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Maryland Rule 8-131(c). 8 In addition, we must consider the evidence in the light most favorable to prevailing party. Urban Site v. Levering, 340 Md. 223, 230 , 665 A.2d 1062, 1065 (1995); Geo. Bert.Cropper, Inc. v. Wisterco, 284 Md. 601, 620 , 399 A.2d 585, 595 (1979). Thus, we decide not ³⁷² whether the trial judge’s conclusions of fact were correct, but only whether they were supported by a preponderance of the evidence.

E.g., Levering, 340 Md. at 230 , 665 A.2d at 1065 ; State Insurance Comm’r v. Nat’l Bureau, 248 Md. 292, 305 , 236 A.2d 282, 289 (1967). We conclude that the Circuit Court did not err in joining Ms. Sturgis as an additional plaintiff. Accordingly, we need not, and do not, address the applicability to this case of § 12-202(b) of the Election Code. B. Article V, § 10 of the Constitution of Maryland, titled “Qualifications of State’s Attorneys,” provides that “[n]o person shall be eligible to the office of the State’s Attorney who has not been admitted to practice law in this State, and who has not resided, for at least two years, in the county, or city, in which he may be elected.” Const., Art. V, § 10.

The word “resided” has expressly been held by this Court to mean domiciled. Blount v. Boston, 351 Md. 360, 364-66 , 718 A.2d 1111, 1113-14 (1998); Roberts v. Lakin, 340 Md. 147, 153 , 665 A.2d 1024, 1027 (1995) (“This is in accord with our decisions generally that the words “resided” or “resident” in various constitutional and statutory provisions mean “domiciled” or “domiciliary” unless a contrary intent is shown.”); Rasin v. Leaverton, 181 Md. 91, 93 , 28 A.2d 612, 613 (1942) (“The requirements in the Constitution of residence for political or voting purposes is one of a place of fixed, present domicile”); See also Stevenson v. Steele, 352 Md. 60, 69 , 720 A.2d 1176, 1180 (1998); Garcia v. Angulo, 335 Md. 475, 477 , 644 A.2d 498, 499 (1994); Wamsley v. Wamsley, 333 Md. 454, 458 , 635 A.2d 1322, 1324 (1994), Thus, any inquiry into whether a candidate for the Office of State’s Attorney meets the “residency’ requirements set forth in Article V, § 10, must focus upon the candidate’s domicile. Blount, 351 Md. at 366 , 718 A.2d at 1114 . This Court’s longstanding view on determining a person’s domicile was stated in Roberts, supra, 340 Md. at 153, 665 A.2d at 1027 , where the Court wrote: ³⁷³ “The words reside or resident mean domicile unless a contrary intent is shown.

A person may have several places of abode or dwelling, but he can have only one domicile at a time. Domicile has been defined as the place with which an individual has a settled connection for legal purposes and the place where a person has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place he has, whenever he is absent, the intention of returning. The controlling factor in determining a person’s domicile is his intent. One’s domicile, generally, is that place where he intends to be.

The determination of his intent, however, is not dependent upon what he says at a particular time, since his intent may be more satisfactorily shown by what is done than by what is said. Once a domicile is determined or established a person retains his domicile at such place unless the evidence affirmatively shows an abandonment of that domicile. In deciding whether a person has abandoned a previously established domicile and acquired a new one, courts will examine and weigh the factors relating to each place. This Court has never deemed any single circumstance conclusive.

However, it has viewed certain factors as more important than others, the two most important being where a person actually lives and where he votes. Where a person lives and votes at the same place such place probably will be determined to constitute his domicile. Where these factors are not so clear, however, or where there are special circumstances explaining a particular place of abode or place of voting, the Court will look to and weigh a number of other factors in deciding a person’s domicile.” Id., quoting Dorf v. Skolnik, supra, 280 Md. at 116-117, 371 A.2d at 1102-1103 (emphasis in original). Furthermore, this Court has stated that the place of voting is the “highest evidence of domicile.” Blount, supra, 351 Md. at 369 , 718 A.2d at 1115 ; Bainum, supra, 272 Md. at 498 , 325 A.2d at 397 (“the two most important elements in determining domicile are where a person actually lives and where he votes”); Roberts, supra, 340 Md. at 154, 665 A.2d at 1027 (“Evidence ³⁷⁴ that a person registered or voted is ... ordinarily persuasive when the question of domicile is at issue,” quoting Comptroller v. Lenderking, 268 Md. 613, 619 , 303 A.2d 402, 405 (1973)).

Furthermore, actual residence, coupled with voter registration, “clearly createfs] a presumption that [the person] was domiciled” there. Roberts, supra, 340 Md. at 155, 665 A.2d at 1028 . See Bainum, 272 Md. at 498-499 , 325 A.2d at 397 (“[w]here the evidence relating to voting and the evidence concerning where a person actually lives both clearly point to the same jurisdiction, it is likely that such place will be deemed to constitute the individual’s domicile”). In other words, the law presumes that where a person actually lives and votes is that person’s domicile, unless special circumstances explain and rebut the presumption.

Id., citing Harrison v. Harrison, 117 Md. 607, 615 , 84 A. 57, 59 (1912). In Blount , we noted that the “concept of domicile is somewhat elusive.” Blount, supra, 351 Md. at 367 , 718 A.2d at 1114 . Nevertheless, the principles for determining a person’s domicile' are well settled. A domicile once established continues until a new domicile is established.

Blount, supra, 351 Md. at 371 , 718 A.2d at 1116-1117 (once a person’s place of domicile is determined, there is a presumption that it continues until superseded by new domicile). To establish a new domicile there must be an “abandonment” of the former domicile and an “acquisition” of a new domicile. Id.; Bainum, 272 Md. at 498 , 325 A.2d at 396-397 ; see also Roberts, supra, 340 Md. at 154, 665 A.2d at 1027 . Furthermore, our case law has held that “[i]n order to effect a change of domicile, ‘there must be an actual removal to another habitation, coupled with an intention.’ ” Blount, supra, 351 Md. at 372 , 718 A.2d at 1117 , quoting Bainum, 272 Md. at 498 , 325 A.2d at 397 ; Shenton v. Abbott, 178 Md. 526, 530 , 15 A.2d 906, 908 (1940).

The “abandonment of the old domicile [must be] so permanent as to exclude the existence of an intention to return to the former place, [and] ... there must be both the animus manendi and animus non revertendi.” Shenton, supra, 178 Md. at 534 , 15 A.2d at 910 . We have further held that, “[i]f a person has actually moved to a new abode, with the intention ³⁷⁵ of remaining there for an indefinite time, and establishing it as a place of fixed present domicile, that place is to be deemed his domicile, notwithstanding he may entertain a floating intention to return to his former domicile at some future time.” Id. at 532-533 , 15 A.2d at 909 . We further explained these firmly rooted concepts in Blount , when we stated that “there are two aspects of the intent element which are prerequisites for a change of domicile.” Blount, 351 Md. at 372 , 718 A.2d at 1117 . First, the person must intend to abandon his or her former domicile.

Second, the new place of habitation must be intended by the person to be the new domicile. Id. Both factors must be firmly established together to fulfill the intent requirement. We begin our analysis with the presumption that appellant was domiciled in Wicomico County beginning in December 1995 until some time in 2000, a proposition with which the appellant does not disagree.

The evidence showed that, during this time frame, the appellant actually resided, and was registered to vote, in Wicomico County, thus creating the presumption. Thus, by his own admission, the appellant was a domiciliary of Wicomico County during this time. In addition to living and voting in Wicomico County, he worked and paid taxes in Wicomico County. The appellant maintained professional memberships and associations in Wicomico County.

Finally, the majority of his personal belongings were located at his Wicomico County residence. Assuming that the appellant is not entitled to tack any prior Worcester County residency onto his current residency in that county, he could satisfy the residency requirement for the office of State’s Attorney of Worcester County only had he established his Worcester County residency prior to November 5, 2000, or two years preceding the date of the general election in which he sought to be elected. Thus, our inquiry into the appellant’s domicile involves determining whether the appellant effectively abandoned his previously established domicile of choice, viz Wicomico County, and established a new domicile in Worcester County prior to November 5, 2000. ³⁷⁶ Relying on this Court’s holdings in Stevenson and Blount , the appellant argues that his domicile should be determined by his intent. On that premise, he urges the Court to view his ownership of real property and the construction of a new home thereon, coupled with his actions in furtherance of that ownership of real property, as forming the requisite intent to establish a domicile in Worcester County and, consequently, the affirmative acts to establish that he abandoned his Wicomico County residence.

More specifically, he invites