February 25, 2009

Board Meeting: Jon Husted Residency

The Montgomery County Board of Elections met in session at 11:00 a.m. on Wednesday,
February 25, 2009. The meeting was called to order by Chairman Gregory Gantt. Members in
attendance were Thomas J. Ritchie, Dennis Lieberman, and James Nathanson.

The following is a transcript of discussion regarding Senator Jon Husted’s residency.

GG Next item…report from legal counsel on the question we asked you regarding Senator
Husted.
VW You had asked me to interpret Ohio Revised Code Section 3503.02(G). In the interim we
have received a Memorandum in Support of Dismissal of Residency Hearing from
Senator Husted’s attorney Maria Armstrong. I suppose all of you have gotten a copy of
that. I’ve reviewed that also. This is kind of an odd thing. Let me start with this, (G) of
course says “If a person removes from this state to engage in the services of the United
States government, the person shall not be considered to have lost the person’s residence
in this state during the period of such service, and likewise should the person enter the
employment of the state, the place where such person resided at the time of the person’s
removal shall be considered to be the person’s place of residence.” Senator Husted,
when he testified at the last Board meeting, or the meeting before last, indicated that it
was his opinion under that particular section that this exempted him from (D) of 3503.02,
which is the subsection that says that if a person’s family resides in a particular location
as other than the county where he’s registered, then that shall be considered his place of
residence. Interestingly enough, the Senator’s attorney has argued that 3503.02(G)
should be read…here’s that word again that you and I discussed yesterday…that term in
pari materia with Article 2, Section 3 of the Ohio Constitution. Article 2, Section 3 says
“Senators and representatives shall have resided in their respective districts one year
next preceding their election, unless they shall have been absent on the public business of
the United States, or of this State.” The Senator’s position, I believe, is that when you
read this together with 3503.02(G), that it can be fairly read to mean that having once
been elected…if you’ve been absent from your particular jurisdiction on the business of
the state, which would be his business in Columbus on behalf of the local district, that he
doesn’t loose his place of residence in Montgomery County as a result of that. The
Senator’s attorney has argued that that’s perfectly clear under the Code. I would submit
that it’s not perfectly clear at all…it’s anything but. This is a good example of a poorly
drafted section of the Code. I don’t know what it means, to be quite frank with you. It
certainly can be read the way that the Senator is suggested, but if you look at the actual
wording of this particular subsection…the key term is removal, and in the first clause,
removal is with reference to removal from the state. In the second clause, there’s no
particular word that modifies that in anyway shape or form, it just says removal. I don’t
know…removal from what? Removal from the city, removal from the county, removal
from the state…who knows? I don’t know. My position is this…expanding beyond this
just a little bit, if you’ll entertain this. I’ve had private discussions with several of you
since we began discussing this. You’ll recollect that I have said on several occasions that
it’s my opinion that subsection (D) is in fact something that is known as a rebutable

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presumption. (D) says “The place where the family of a married person resides shall be
considered to be the person’s place of residence; except that when the spouses have
separated and live apart, the place where such a spouse resides the length of time
required to entitle a person to vote shall be considered to be the spouse’s place of
residence.” We’ve had some prior conversation about whether shall means shall in that
particular statute. As the layers in the room know, most of the time it does, but not
always. In this particular instance I would say that it does not. The reason I say
that…this is mentioned in the Senator’s brief, and it’s fairly well stated, it comports with
the conclusion that I had already drawn with regard to this…although, to be honest with
you, I was not familiar at the time with the case of Carrington vs. Rash, although it was
sited, I had not read it then, and the Bell vs. Marinko case. Bell vs. Marinko is a case that
emanates out of the Northern District of Ohio at Toledo…it specifically addresses this
3503.02(D). Basically, what it says is that…let me read just one little part of this, it says
that “bonafide residents may be determined not only by an intent to reside at a fixed
place, but also factors that express such an intent.” If you look at 3503.02 in its totality,
what you’re talking about…when you look at (D), (D)’s not talking about intent, it’s
talking about an objective fact…a person’s family resides some place else. That is an
expression, if you will, according to this court , and I think correctly so of intent. Intent
is not only what a person says, intent can also be implied from the person’s acts. The
person in this particular instance has a family, which resides some place else. The
Carrington case, which is sited by the Federal District Court in Toledo, and this Bell case
basically says that if you’re going to keep from running afoul to the equal protection
clause when you’re talking about residency and presumptions regarding residency, you’re
going to have to make those presumptions rebutable, as opposed to irrebutable. Now, if
you look at this within the context of the Ohio statute and within the context of what
you’ve got before you…I think what this all boils down to is this, Senator Husted’s
family doesn’t live here, they live some place else. That objectively raises the
question…is the residence in Montgomery County proper or should it be proper in the
other location? The presumption is that the residence is other than Montgomery
County, but the presumption is capable of being overcome. It’s overcome by
presentation of evidence. The evidence has been presented here by way of the testimony
of Senator Husted. So, the question before you in my opinion is whether or not the
evidence that was presented by the testimony of Senator Husted, which comports with the
other intent sections of 3503.02, was sufficient to overcome the presumption in
subsection (D) with regard to the residence of his family. Now, the other thing that I
want to address just briefly with regard to that is…we’ve got this Spangler case, which
the lawyers know is hanging around out there, which talks about this particular
subsection and more or less seems to indicate that it’s a forgone conclusion…if that’s the
situation, your family resides some place else, then for residence purposes that’s your
residence. But the Spangler case did not look at, and did not discuss the Carrington
case…the Carrington case preceded that. I think basically, if I might, that it is something
that probably escaped their attention. The question of whether or not (D) should be
applied as an absolute, or whether it’s something that can be overcome simply was not
something that they examined. The Bell court in Toledo did examine it…I think they
examined it properly. Under those circumstances, I think that with regard to this again,
what you’ve got to ask yourselves as a Board is whether or not the evidence that was

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 presented by Senator Husted with regard to residency was sufficient to overcome the
presumption of residency that occurs in subsection (D).
GG Vic, after that hearing I started doing some digging on my own. I asked Betty to forward
to each of you…there was an opinion by Secretary Brunner on October 28th of 2008 in
Morgan County. Did you get a chance to review that?
VW It appears that Senator Brunner has interpreted subsection (D) in the same manner as the
Bell vs. Marinko case.
GG It’s very similar to Senator Husted’s testimony. I also found, even though it’s not an
opinion on the…
JN She’s not quite Senator yet.
VW That’s right, pardon me. Not quite yet.
GG On the Ohio State Law website discussing Governor Strickland having a home in
Washington, Columbus, and in his district. I said in my e-mail to all of you…I said based
upon…and I look as we’ve learned, not so much at case law and Secretary Brunner says,
reading her opinion of October 28th and this law opinion, and based on Governor, I’m
sorry, Senator Husted’s testimony, I make a motion that I’m satisfied with his testimony
that he is a resident of Kettering…he was on the ballot. I make a motion that we’ve done
our job and investigated this and that he’s a resident of 148 Sherbrooke Avenue.
JN And I second the motion.
DL Before we vote, I think we probably ought to have some discussion on this.
GG Please.
DL We’ve spent a lot of time on this and just to remind everyone of the background…this
came to our attention initially through a Dayton Daily News article about claiming
exemptions in Columbus and Dayton. I think that’s how it came to the public’s view.
Then, we received a complaint from two different individuals, one of whom…one is not
an individual, one is a 501 C3, the other is an individual who filed a complaint with us to
investigate Mr. Husted and whether or not Mr. Husted lives in the district. That was a
registered Republican from his district. Based on that, we decided to do an investigation.
One of the things that we did was that we asked Mr. Husted in here to give testimony,
which he did do. Unfortunately, there’s no documentation provided by him to support
some of the assertions he was making. No utility bills; the trust that he mentioned as far
as his deed to the house…I was really interested in examining that because I think that
goes to future intent…never received that; Kettering income tax to demonstrate whether
he’s paying an income tax in the City of Kettering as his residence…didn’t receive that;
didn’t receive any utility bills as mentioned. Did look as some water bills, which would
indicate that he has very low water usage in that Kettering residence. One of the things
that struck me about his testimony was the fact that he couldn’t remember…he said that
he and his family had visited the residence the weekend before, however, he couldn’t
even remember if they stayed overnight. So, I’m looking at this based upon the legal
interpretation, not under Spangler, but I’m looking at it under the Bell analysis. The Bell
analysis is that there is a rebutable presumption, as I understand it. A rebutable
presumption to me means that it is undisputed that his family lives in Columbus,
therefore, the is a presumption that his residence is in Columbus. That needs to be
rebutted with some evidence by Mr. Husted. I think he fell short in his testimony of
rebutting that evidence. Therefore, based upon that, I’m going to have to vote against
your motion.

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GG Tom.
TR You know where I’m at on the issue. We have talked previously and I’m going to have
to vote against the motion also.
GG Ok. Call the question. Do roll call…Member Nathanson.
JN In support of the motion.
GG Member Lieberman.
DL Against
GG Member Ritchie.
TR Against
GG Chair votes for.
JN We have to do it again.
DL Three times.
GG Second time.
DL Are you changing your vote?
JN I am for the motion
DL Against
TR Against
GG For. Third time.
JN I support the motion.
GG Thank you.
DL Against.
TR Against.
GG For. Ok, we have a 2-2 tie. 14 days, is that our plan?
SH Position papers from both sides.
GG Ok.

Prepared by: R. Lehman

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