Thursday, October 05, 2006

Republican bloggers' legal malpractice

Cross-posted at BSB:

First, Lincoln Logs recycles the same evidence he was using three months ago about the Stricklands claiming a property tax credit for their condo in Franklin County as a "new development." Then, he tried to whip the entire right-wing blogsphere in a frenzy over a complaint being filed in Columbiana County over Strickland's voting registration in Lisbon, where the Stricklands also reside in an apartment. (By the way, despite assurances to the contrary for months now, nobody has offered any evidence that the Stricklands do not also reside in their Lisbon apartment.)

Second, despite Matt's assurances to the contrary, the person objecting is hardly the "objective" Democrat he claims:

"[Columbiana GOP county chair] Johnson said he was pleased with the actions of Ms. Long, whose son, Larry Long Jr., is an outspoken supporter of Republican gubernatorial candidate Ken Blackwell."
The person's complaint would have seemed less partisan if it was immediately joined by a press release from the Columbiana County Republican Party and pushed by Matt at Lincoln Logs, RAB, Weapons of Mass Destruciton, and then by the Blackwell's campaign blog.

The article also establishes that Strickland, in fact, frequently stays at the Lisbon apartment:

Dennis Johnson said the elections board will give the complaint a fair hearing, but he said anyone who lives in Lisbon can tell you that Strickland stays at his apartment when in this part of the district, especially the employees at the Steel Trolley Diner, which he frequents.“You can talk to the people at the diner who would see him late at night” when Strickland stopped in for a piece of pie, he said.

WARNING: BORING LEGAL CONTENT AHEAD

Matt then asserts, with no legal authority, that Strickland is guilty either of voting fraud or tax fraud simply because Strickland applied for a tax credit for the condo as an owner-occupied home. Dole asserts that the form shows that the Franklin County property is Strickland's primary residence. However, Ohio election law doesn't require you to vote from your "primary residence." In fact, there's nothing in the Ohio Revised Code that comes anywhere near the term "primary residence" for voting purposes.

Also, apparently Matt doesn't know the definition of "residence," or else he'd know that a person can have only one domicile, but can have more than one residence.

So for the purposes of the uneducated, here's the difference between the two:

Residence: Bodily presence as an inhabitant in a given place.

Domicile: Bodily presence as an inhabitant in a given place with the intention of staying permanently. [Source: Black's Law Dictionary, 7th ed.]

The Ohio Revised Code provision that lays out the standard for voting residency, R.C. 3503.02, states that a residence is a person's habitation which is fixed and, whenever the person is absent, has the intention of returning. Note, it doesn't say the place where the person intends to permanently live. The Stricklands said they bought their Columbus condo to have a place to stay whenever they were traveling outside of the district while he was in Congress. Since Strickland will not be in Congress much longer, I'd say his stays in Columbus is pretty temporary. Also, as the article above points out, Strickland does return to the Lisbon apartment quite often. Statute satisifed.

In State, ex rel. Lakes v. Young, (1954), 161 Ohio St. 341, the Ohio Supreme Court ruled that a candidate, whose wife and child lived in Dayton, received mail in Dayton, and a registered letter address to his voting address could not be delivered, and the fact that other people were currently renting his voting residence, was not sufficient to find that candidate was not eligible to run for office in the precinct where he was registered to vote. The candidate ate, slept, and received visits from his wife within the precinct, and planned to return to the premises after the current tenants moved out. In that case, the Ohio Supreme Court overturned a Board of Elections decision to remove the candidate from the ballot.

In State, ex rel. Klink v. Eyrich (1952), 157 Ohio St. 338, the Ohio Supreme Court upheld the Hamilton County Board of Elections' decision to affirm the right of a candidate to run for office from his contested voting residence. The Court affirmed the Board decision. In his concurrence, one noted justice of the Supreme Court found that the evidence in the case required the conclusion that the "place where . . . [his] family . . . resides is in Franklin County." However, the justice noted that the question still remained if Franklin County was the only place where the candidate could vote.

The justice wrote:

"[T]hat very evidence discloses that, whenever [the candidate] is away, even when he is in Cincinnati, he has the intention of returning to Franklin County. On the other hand, [R.C. 3503.02] represents a modification of paragraph a of that statute. Admittedly, [the candidate] at one time fixed his habitation in Cincinnati.

There is also substantial evidence of [the candidate's] intention eventually to return from Franklin County to Cincinnati. Also, there is evidence that he has not gone to Franklin County for permanent purposes. If the antithesis of 'permanent purposes' is 'temporary purposes, and the words in [subsection] c of the statute tent to indicate then the rule stated in [subsection] b of the statute would support the board's position."

The justice then looked at what is now R.C. 3503.02(F) which states "if a person removes from this state and continuously resides outside this state for a period of four years or more, the person shall be considered to have lost the person's residence in this state, notwithstanding the fact that the person may entertain an intention to return at some future period."

The justice wrote:

"This paragraph provides only for the effect of 'remaining . . . an indefinite time' where there is removal 'to another state,' not to another part of the state. There is no similar provision [to R.C. 3503.02(H) which holds that a person loses their Ohio residency upon exercising their right to vote in another state] about losing a residence in one part of the state because of going into another part and voting there. Therefore, even if [the candidate] could have voted in Franklin County, it would not follow, under the words of paragraphs f and h of the statute, that he could not later vote in Cincinnati, even though he was living in Frnaklin County for an indefinite period.

"In making provision for the place where an elector may vote, the General Assembly has not specified that he may vote only at his place of domicile. Instead the words "resident" . . . and "residence" . . . have been used. A man may have more than one residence although he can have only one domicile.

"The mere fact that the ordinary meaning of the provisions of the applicable statutes may give a particular individual a choice of more than one place as his voting residence is no reason for determining that those statutes should be so construed as not to permit that. Obviously, such individual can vote only once at the same election.

"Apparently, the General Assembly, in providing for voting at the residence and setting forth rules for determination of such residence, recognized that there would be instances in which it would be difficult for an individual to determine where his domicile was or what his only voting residence was, if no leeway was given him to determine that for himself within certain limitations. The rules which the General Assembly specifed were apparently intended to enable an individual in such a situation to select as his residence some place which fairly conformed with one or more of the several rules specified, even though it might not conform with some of the other rules so specified or might not be his domicile."

And who was that Justice? None other than Justice Kingsley A. Taft. (Poor Ken Blackwell. The Taft family is a curse upon him!)

Oh, and before the Republicans think that even if their challenge succeeds means that Ted Strickland won't be able to vote in four weeks, they really should have read R.C. 3503.30 which states:

"When by mistake a qualified elector has caused himself to be registered in a precinct which was not his place of residence, the board of elections, on full and satisfactory proof that such error was committed by mistake, may, on his personal application and proof of his true residence, correct his registration form. The board may correct all errors occurring in the registration of electors when it finds that the errors subject to corrections were not of fraudulent intent."

No wonder the Cleveland Plain Dealer has already called Lincoln Logs legal malpractice "lame."

Poor Matt Dole, he's been wrong about Bob Ney's innocence, Chuck Blasdel's electibility, the NRCC's promise to pump paid media dollars in OH-06, and this (yet again.)

Can't imagine what he'll say when this complaint fails. And I sure as heck hope Matt and all these other Republicans never voted absentee while away from college. Unless, they intended to move back home with his parents after college, they're guilty of a fourth degree felony under their radical interpretation of this statute which has already been rejected by the Ohio Supreme Court.

6 comments:

Anonymous said...

You're not a very good lawyer...and it shows. (sorry) Look at me, I cited a bunch of cases and statutes, and cut and pasted a lot of stuff out of context.

Anyways, smells like tax fraud.

Anonymous said...

Hee, hee. Yeah, you should change the name of your blog to "Modern guy with a law degree who spends all his free time at his computer in his parents' basement or on Match.com."

I know, it's a long title, but likely more accurate.

Modern Esquire said...

Yeah, because cited case law and statutes really is a poor way of making legal arguments. Instead, I should just sound like some jackass calling into some talk radio show.

BTW, do you have any evidence that what I wrote took anything out of context? I didn't think so.

Also, just so you know. I'm married, and my parents live several hours away in my childhood home which had no basement. The fact that you had to go with a false ad hominem attack shows that you really have no intelligent response to the subject matter.

Turn off your computer, and go do your homework, son.

Thanks for reading, though.

Anonymous said...

How many election law cases have you handled, Mr. 2005 graduate?

Bet the number rhymes with Zero! (and, yes, zero DOES rhyme with zero)

Kudos on the use of ad hominem, though, and thanks for the "thanks for reading." Also, on a serious note, I appreciate that you do not censor comments.

Modern Esquire said...

Unlike the Republican party hack attorney representing the complaintant, I am authorized by the Ohio Supreme Court to appear before the Board of Elections or any other agency hearing election law matters.

Outside of law professors, very few attorneys call themselves election lawyers as it's not really a speciality.

Since election law is based largely on court case law and statutes, it doesn't require specialized knowledge like patent law.

I'm also authorized to appear before the U.S. District Court of the Southern District of Ohio and won the top constitutional law prize in law school.

So, yeah, I know what I'm talking about. The fact that nobody has come up with any legal authority to counteract the cases I've cited says something.

In fact, Congressman Strickland's attorney, who does call himself an elections law expert, submitted a memorandum to the Board of Elections very similar to the one posted here.

That should say something.

Anonymous said...

"You're not a very good lawyer...and it shows. (sorry) Look at me, I cited a bunch of cases and statutes."

The next time I submit a brief, I'll be a good lawyer and just not mention the applicable cases and statutes. I stand corrected in my practice of law!