Robert B. Baker has been a member of the Public Service Commission (PSC) since his initial election in 1992. The General Assembly subsequently “amеnded OCGA § 46-2-1 to establish that new members elected to the commission must reside within specific districts.”
Cox v. Barber,
In order to be elected аs a member of the commission from a [PSC] District, a person must have resided in that district for at least 12 months prior to election thereto. A person elected as a member of the commission from a [PSC] District by the voters of Georgia must continue to reside in that district during the person’s term of office or that office shall thereupon become vacant.
OCGA§ 46-2-1 (b). “The legislаture made this residency requirement effective for elections for . . . district two in [November] 2004. [Cit.]” Cox v. Barber, supra at 416. See also OCGA § 46-2-1 (d). Although Commissioner Baker did not previously reside in District Two, he purchased a home in Clarke County, which is in that district, in August 2003. After defeating Roger Dоzier in the primary, Baker was elected as Commissioner from District Two in November 2004.
Thereafter, Dozier and Eleanor McMannon (Appellants), as citizens, taxpayers, and registered voters residing in PSC District Two, filed a petition for writ of quo warranto against Commissioner Baker, alleging that he actually resides in DeKalb County, which is in District Three. After discovery, the trial court granted summary judgment in favor of Commissioner Baker, finding in an extensive order “that the undisputed evidence in the record establishes [his] intent to mаke Clarke County his residence for at least 12 months prior to his election to the PSC as the District Two Representative. . . .” Appellants appeal from that order.
1. Appellants contend that the trial court erred by applying the wrong legal standard to the term “reside” as used in OCGA § 46-2-1 (b). “Wherever a form of ‘the word “reside” occurs either in the
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statutes or in the constitution оf Georgia with respect to voting, it should be construed to mean “domicile.” ’ [Cit.]”
Holton v. Hollings-worth,
2. Appellants further contend that the trial court improperly limited the evidence which it considered and erroneously found that Commissioner Bаker meets the legal residency requirements as a matter of law. Although domicile is a mixed question of law and fact which is оrdinarily for a jury where the evidence is in conflict, domicile should be determined by the trial court as a matter of law when the evidence establishes a plain and palpable case.
Webb v. Oliver,
Commissioner Baker testified by deposition that his intention in 2003 was to make District Two his permanent residence. See OCGA § 21-2-217 (a) (3), (4.1), (6). He presented documentation of his legal residency in that district which included his voter registration and voter history, driver’s license, homestead exemption on property in Clarke County in 2007, and vehicle registrations.
Anderson v. Flake,
Commissioner Baker’s evidence is not refuted by the fact that he still uses and pays expenses for thе DeKalb County home, which is now wholly owned by his wife and for which she claimed homestead exemption in 2004 through 2006. “Neither the domicile nor the residence of one spouse is presumed to be that of the other spouse.
OCGA§ 19-2-3. [Cit.]”
Lance v. Safwat,
Furthermore, the trial court correctly recognized that “[t]he prоper question for [it] is not [Commissioner Baker’s] motive for his actions, but rather his intent to establish [legal] residency in Clarke County.” Although Commissioner Baker changed his domicile in order to run for election in District Two, he was not forced to do so, but voluntarily toоk numerous steps to make Clarke County his permanent residence. Compare Williams v. Williams, supra at 439 (where a woman did not chаnge her domicile when she was forced to leave her husband because of his cruel treatment, lived or boarded with friеnds in an adjacent jurisdiction, and desired to return when possible).
Appellants’ evidence of Commissioner Baker’s longtime рersonal and professional associations outside of District Two and his continued use of the DeKalb County address for checks and bank statements does not prove that he failed to abandon the DeKalb County house as his domicile, but only shоws that he has retained certain past ties outside District Two. None of Appellants’ evidence presented any facts inconsistent with Commissioner Baker’s evidence and sworn intention that his domicile is in Clarke County.
Davis v. Holt,
Because the plain, pаlpable and undisputed evidence presented by [Commissioner Baker] showed that [he] had satisfied the residency requirements of the [district] in which [he] was elected to serve as a [PSC commissioner], the trial court was authorized to grant [his] motion for summary judgment. [Cit.]
Anderson v. Flake, supra.
Judgment affirmed.