*1 carry out all functions court and duties of during pendency proceeding this until further order pro paid judge Court. He shall of this be his services as tempore in the same amount and same manner respondent. parties special prosecutor
We advise will also appointed in this appropriate matter take all opinion. opinion actions not inconsistent with this This shall being authority special prosecutor, be sufficient for said after named, qualify immediately upon taking so an oath this and to assume duties in We Mr. matter. now direct Melvin, investigating Supreme chief L. Cecil officer Disciplinary Commission, prosecutor Court to assist said objective an manner. Arterburn, participating all court,
For Justices of J., participating. C. not Reported at 317 N.E.2d
Note. — Perry Judge Matter Evrard, In The David E. Circuit Court. August 22, 1975; page
[No. Filed 1172S154. amended first filed September 3, 1975.] *3 Burner, Evansville, respondent. John of for Miller, Special David V. Prosecutor, Evansville, peti- of tioner. original presented J. This
DeBruler, action was to by Court a Judge of respondent Petition the Removal of Perry the jurisdiction Circuit This Court. Court assumed of authority the case under vested in 7, this Court Art. of Following the acceptance Indiana Constitution. of the our case, respondent challenged jurisdiction. our re In In Evrard (1974), 423, 841, rejected 263 Ind. 317 N.E.2d this Court challenge appointed judge pro tempore and a the of Perry Circuit Court until serve final resolution of the appointed hearing case. The Court also a successor officer and special prosecutor January 1975, 30, in the case. On serve response respondent filed a to the Petition for Removal. Rabb, hearing officer, I. the Honorable Saul
The successor special petition filed his hearing upon and the conducted Respondent 7, Findings us on March 1975. of Fact with un- Court, which we deem motions to this addressed several today. light make upon in of the decision we necessary to rule alleged part based in for Removal The Petition is occurring in the season of laws, of the election violations respondent a candidate. at which Primary Election respondent filed declaration charge first is Judge Perry Court Circuit office candidacy for the March Perry Circuit Court on Clerk of 16, 1970, in which March Secretary on of State and with qualified that he statement knowingly false he made Indiana, County, in Perry violation resident of voter being 3-1-32-48, Burns 29-5948.1 Ind. Code § § unlawfully voted, charge respondent is that The second Primary voting, unlawfully in his wife and abetted aided Primary that at the time of May 5, on Election legal residents respondent and were his wife Election being 3-1-32-10, Virginia, violation of Ind. Code State § 29-5910,2 being 35-1-29-1, Burns Code Burns § § 9-102.3 § charge May 5, 1970, passed
The third Virginia passing from, the from, and aided wife Election, May Indiana, voted 5th into the State any candidacy, “Any person file declaration of 1. who shall . . . nomination, knowing same, part petition certificate or guilty felony.” falsely thereof, . be deemed to be made . . shall having legal qualifications “Whoever, of a voter who is represents duly be, registered and authorized vote as himself *4 any falsely represents himself as a voter at election au- or whoever any whatever, office law to be held in this state votes thorized guilty felony.” election, be of a or to vote at shall offers such felony “Every person shall aid or abet in the commission of a 3. who may principal if a in the same manner as he were . be . . . convicted . . punishment and, upon he shall suffer the same . such conviction . . prescribed by punishment penalties law for the as are and principal.” voting precinct, neither bona fide while was a resident of 3-1-32-13, being Code 29-5913.4 in violation of Ind. Burns § § charge respondent conspired is that fourth with his father, Evrard, committing purposes Fred J. of above, in three offenses enumerated violation Code 35-1-111-1, being Burns 10-1101.5 § § petitioners’ respondent
The substance case had is legal County Perry residence in no at the time he filed candidacy, respondent sworn declaration of and that neither legal county his wife in that at nor had residences the time they May petitioners’ It voted on at 1970. belief that times, Virginia. both were said It residents of respondent registered is a fact that both and his wife to vote Perry 7, 1970, County, on March and it follows therefore registered that both respondent were to vote on date filed Primary. on his declaration and both voted in the date allegation respondent made in case There no this did legal County in Perry prior residence establish Pri- mary, but residence that such was insufficient in duration legal qualify candidacy voting purposes. residence for and Rather, petitioners contend that no at all residence by respondent prior Primary established and wife to the accept posture Election. We this case do not con- requirements law, any be, if pre- sider there any particular primary residence be duration. If filing had fide wife a bona residence and his date of voting, then those the declaration acts not un- would be If, hand, respondent on the other lawful. not wife did any passes state, from 4. “Whoever other state into this and votes state, attempts any voting precinct or or vote at ward of this not being voting precinct at the a bona fide resident such ward, time or felony.” guilty be shall “Any person persons person or who any shall unite or combine with persons purpose committing or for the felony, other within state; persons this or or knowingly or without who shall any person persons, body, or unite with persons, association or combination of object felony felonies, is the commission of whose or within shall, state, conviction, twenty- fined not without than less dollars, nor than imprisoned more five thousand five dollars state prison years years.” than two nor more less than fourteen *5 440 dates, have those a fide his acts would bona residence statements, existence of statements and the such
involved false support petitioners’ give contention considerable to would subject respondent disciplinary ac- should Court to assumptions, proceed Upon these we consider this case. tion. to Pedigo Grimes, 148, In (1887) v. 113 this Court con legal establishing requirements voting for a sidered the resi definitely requires person dence. law The particular place permanent intend a his to make upon good residence and act intention in faith. person show to court evidence of acts undertaken must requisite intent, in furtherance of that intent make believable. or manifest and Whether not a meets requirement residency voting is contextual determination for to be court a consideration of individual made any probably having facts one is case. limited While to single voting given time, purposes any residence for the fact at “residence,” place abode, more than one he has investment, commitment, social and has substantial which he purposes, useful number which is interest, and among many be considered fact others to only one relevant Duguid, App. (1931) 266, 93 Ind. Brownlee 178 by a v. court. prior such the abandonment resi Conduct as 174. N.E. contemporary intention to establish a statements of and dence are be considered Brittenham principal residence to also. new al., (1897) App. 18 Ind. et Robinson v. Judge 1969, then Fall incumbent
In the late resign announced intention to Perry Court Circuit During Thanksgiving January 1, 1970. judgeship effective City, respondent to Tell asked visits and Christmas dis- judgeship the next General Election. He for the run Party Democratic officials friends and this matter with cussed 1970, He January, run for the early decided to office. and, City purchase of a house Tell immediately discussed the realtor to look for a house for asked realtor 1970, respondent publicly February 10, an- buy. On him to Judge his intention candidacy office nounced his County. Perry respondent permanently Both to return 1970, registered Perry County vote on March wife claiming City, residence. On Street, Tell their Eleventh candidacy signed 11,1970, respondent March declaration and, oath, on March it with the Secre- under he filed tary of of Indiana. City
Respondent periodically Tell and his wife returned during February, May, January, March the months of April, respondent 1970. In estimate of cost of obtained an *6 moving City. month, furniture In he his to Tell that same resigned Justice, patent attorney Department as at the U.S. but was a that offered and assumed contractual relation with Department April, 1970, July, purpose from for the to winding up his work. year respondent
At an time, 1965, pur- earlier had airplane an City chased and his visits to Tell become had frequent. airplane more airplane a This and newer which purchased registered was had in been FAA with the giving respondent City. address at Tell From graduated through when he from Purdue July, at completed he Perry County, respondent which time his move to military was absent from the State Indiana reason of his employment service and his with the Re- U.S. Government. spondent Virginia and his wife traveled from on City to Tell May 3,1970, May and 5th. voted foregoing support
Most of the facts tend to the formation intent City of an to establish a residence in Tell at the times coupled here, in
relevant with acts furtherance there respondent of. public made several statements and commitments to for office, run clearly were expression an an intent to City establish a residence in Tell parents. the home of his These statements did not stand steps Virginia alone. He took overt to his sever in connections Washington, D.C., City. to Tell and and move On the other hand, respondent also evidence established that owned in Virginia were and children in that his new wife’s
house both there and the cars and driver’s licenses school Virginia, in respondent his reflected their residence and wife believe, up Primary even the time of the Election. We sub- respondent’s position had however, he Virginia and responsibilities and in commitments stantial husband, home- lawyer, step-father, Washington, D.C., as a owner, the time to become pilot driver at he decided and Judge Perry County in to establish a resi- candidate for and require respondent’s position to there. To dence Virginia acquired City, his in Tell house one sold given employment abruptly entirely, his up moved his Indiana, an children from their school obtained wife’s accomplished license, and all other Indiana driver’s such odds completely severed all connections would have with and ends as Washington area, Virginia a condition and the of establish- ing Indiana, No such residence would unreasonable. township precinct of voter’s residence assurance absolute integrity process. protect of the election required question shows without evidence Here parents to establish a residence intent formed the Virginia buy house another one until could sell parents County. Perry The fact that the residence with period only a limited is not decisive. be for intended to *7 supra. respondent Pedigo Grimes, Both and were wife his v. during place periodically at that the months bodily present May. February, and January, March Both them- conducted of Virginia a manner consistent and in with in Indiana selves County. Perry steps intent to move to The expressed their sufficient residence they took to establish a at the were qualify register, declare parents them to his and to home of Primary in candidacy, vote No false state- Election. to been in the declaration shown made ment is therefore implied voting, as candidacy be from the of or to act registered vote and had respondent had to established parents City. in Tell at the home his residence charge Upon respondent consideration of that aided and violating abetted wife in manner his laws election legal above, described we find that same test applied determining to residence should whether respondent’s voting or not wife resi established appear parents. dence at the her home of husband’s It would Margaret right adopt to us Evrard choose to had voting By of her husband. residence of this volun reason tary marriage respondent, choice and her entitled was she parents’ to claim the benefit his home. connections with his support find We therefore is insufficient the evidence respondent conclusion that aided abetted his wife violating unlawfully conspired the election law f ather to so violate the law. part
The final Petition Removal is based allegation respondent unlawfully aided abetted wife, Margaret, Bigamy, felony the commission 35-1-81-1, being as defined in Ind. Code 10-4204: Burns § § being “Whoever, married, again, marries the former being alive, matrimony husband or wife and the bond of legal undissolved, having presumption still and no of death guilty bigamy. arisen, is . . relating charge The facts to this show that on December Margaret 1969, respondent married Buckler. At that time Margaret living Buckler had husband from whom she was unspecified divorced. She had been informed from some that her been source husband had killed or had died Viet- marriage, After the nam. she learned that her husband was living. thereupon fact a divorce him, She secured from and she respondent were remarried. hearing knowledge found that officer had no marriage Margaret’s at the time of husband was living. still He had been told her that her husband according dead, and, findings to the fact, dead, although nothing that he believed he did verify given facts, information she had him. Under these *8 unlawfully respondent when acted conclude cannot
we 29,1969. Margaret on December married Perry tempore pro judge appointment of the The terminated, E. hereby and David is ordered Circuit Court hereby and instructed authorized reassume Evrard is regular Judge Perry Circuit functions and duties Court. concur; Prentice, J., Hunter, J., dissents
Givan, C.J., and follow; Arterburn, J., participating. opinion to Dissenting Opinion matter, lengthy The this dissent. record Hunter, J. I charges entirety, in its sustains upon careful review against respondent. dissent are The facts disclosed in this record, from the conclusions out verbatim so set by the may compared drawn herein with those drawn repeatedly by out- majority. This Court has been harassed tempore appointment judge pro its this siders since of a expected, pressure is to be matter last While such November. complete the entire excuse for a less than review of it is no record, course, great creates which, takes a deal of time and finally reached. pressures until a decision is additional maintaining responsibilities polic- The Court ing than judiciary we devote no attention deserve less appeals. civil and criminal
I. charge The first filed declaration Judge candidacy Perry Circuit the office of of the Court 1970, Perry Court on March with the Clerk Circuit Secretary on March violation and with (1969 3-1-32-48, Repl.), 29-5948 Ind. Code Burns § § provides pertinent part: any or “Any person . . file declaration of who shall . thereof, knowing same, part candidacy, . . . guilty falsely . of a made . . shall be deemed
to be felony.” filing declaration a false crime essence *9 filing the swearing any of of candidacy the and false 3-1-9-5, 29-3605 Burns required by Code averments § § statute], candidacy (Code Ed.) of declaration [hereinafter provides: Receipt showing filing Filing not more than primary, notary public the the the clerk the board parties of the oaths, candidate shall be county recorder, county office, criminal or surveyor, councilman, township clerk of candidate “Candidates substantially the state case peace, primary the clerk of and members of including shall have United coming the circuit of a a of county for constable, declaration, subscribed and sworn juvenile court, — Indiana, election, unless at least candidate States, or other Declarations seventy under circuit judge been other assessor, the circuit court following court, county auditor, printed judge trustee, — pecuniary members member of the the the court in filed with for [70] sheriff, county provisions of representative in — county form: township assessor, calendar city prosecuting the Form authorized office.—The circuit, superior, probate, an official ballot committee of the the mail — county court, by case of the commissioner, in the secretary forty — general days township Disqualification the Place county treasurer, coroner, attorney; case of [40] to administer prior to such primary candidate name the assembly to before of of justice candidate days advisory congress filing political state used county county of with law; city — no at of of a “DECLARATION OF CANDIDACY “County of---1
Y ss: of Indiana J “I, --, under- (Name printed typewritten) must be certify hereby signed, qualified do am a I voter of--, -precinct Township City of-, the-ward or Town or of Indiana, -, County State of and reside at -; am a member of the- I inserted) (Complete residence address must be request you place my party; name on the official primary party to of said office ballot be voted for the primary of-’ held the-- election day of-, 19-. this-day and sworn to me “Subscribed before My Expires: Commission (Hour Date) Filed office of-at- - day local time this of-,
P.M./A.M. 19-. tion, of the circuit court of tomail been is a filed. or the clerk of of the circuit graph. a statement shall be considered filed ceived “Not candidacy, *10 candidate, filed in the name of the more than No declaration of Declaration such candidate who shall have the showing court, office the circuit office of the one the as the case of of that such [1] address set out in such candidacy the date on which such declaration was candidate, day candidacy as of court, secretary county, secretary after a may candidate has filed declara- the date may as the case be. shall declaration shall have of state or the clerk be made mail and of state or the clerk office secretary filed and hour it is re- be made may by declaration, declaration which he be, of state by shall tele- candidacy “No declaration of shall be valid unless filed with or received in secretary the office of the state of or the by of clerk the circuit court 12 o’clock noon local time of day prior primary the fortieth calendar to a election. Im- mediately court and the filing after the deadline for clerk circuit the of a secretary certify of state shall and release to public: (1) list each candidates for office for political (2) party each list of all declarations of candidacy legality validity questioned. or whose is All concerning legality validity questions the or aof declaration candidacy of made to the clerk of the court circuit shall by county the be referred to and determined and of election board questions concerning legality validity all the [or] secretary shall declaration made to of state be the by referred to and determined the state election board. “Any person who executes and files a declaration candi- dacy any per salary for for pro- office which a diem or is by filing disqualified for be vided tion law shall from declara- candidacy per for other office for which a salary provided by original or is diem for law until such candidacy is declaration withdrawn. any public qualified run office candidate shall be “No jurisdiction the the office he within unless resides running. residency shall The of the candidate he is which secretary by or clerk of state be determined by by court the standards established IC circuit by 9.” 3-1-21-3, P.L. section as amended Acts [Emphasis added.] candidacy analysis of statute shows the declaration of
An must material averments made candidate. that three qualified First, candidate must swear that he voter. is Finally, must Secondly, he must swear to residence. he allegations membership. party contained swear to his charge averments; the first there is first relate to two truly the Demo- question that was a member of no Party. cratic QUALIFIED A VOTER? RESPONDENT
WAS Law. Statement citizenship voter, age, qualified one must meet the be a To requirements 3-1-7-26, Burns residency Code § 1974), (Code Supp. cited as voter Ed. [hereinafter §29-3426 qualification statute], provides:
proper reside age a citizen of city election, will at that “Every [Emphasis added.] Indiana six the next application, precinct precinct [6] who will thirty ensuing United months, to be until be at [30] States, who, general time, registered days, least next have resided in the state township or eighteen shall be entitled, city election, following if such sixty [18] continues general precinct.” [60] years who days *11 without language, must read the italized statute be This Whitcomb, it been declared v. has unconstitutional. Affeldt Supp. 69, (1970) aff’d mem. F. 405 U.S. 92 Ct. 319 S. (1972). Ed. 2d 1304, 31 L. 576 qualification statute, the voter met
Under age requirements. Thus, respondent citizenship and would qualified purposes voter for of the declaration of candi- 448
dacy requirement statute if he also met residence qualification voter statute. voting
“Residence” that as term is in our means used laws Perhaps unfortunately, used domicil. the terms have been interchangeably Yonkey in Thus, Indiana case law. v. in Cornelison, (1866) 245-50, State ex rel. find we following statement: “But, case, from the evidence in the we think too clear it controversy, Yonkey, going Washing- admit of in ton, under purposes the circumstances and shown evidence, in county, not did lose his in residence Clinton or alleged. general rule, ‘cease to therein reside’ as As a family where a the domicil keeper, man is the head of a and is a house family legal presumed place is to be his requires change residence. It an intention in order to domicil, the residence person place if and therefore leaves his temporarily, otherwise, business or but with the intention of returning, thereby he does not lose domicil, acquire as he could not such absence one else- Die., where. See Bouvier’s Law title ‘Domicil,’ and au- Here, Yonkey family thorities cited. resided in with his county, family Clinton continued to there. reside residence, going It evident Clinton continued to reside Clinton Washington was his and in it did he to lose intend in residence county change Washington. or it to He therefore county.” Ordinarily, simply residence place person connotes where sense, In may lives. more one resi- have than dence; i.e., may he have a home Indiana, summer winter home in Florida. As employed term is voting laws, however, the mere fact that one has a residence ipso in Indiana person’s does not facto mean that such domicil legal home—his may “residence” —is Indiana so he right exercise franchise or become an office-seeker. Thus, kept it must be mind that term “resident” it voting appears our art, represents laws is a word of legal significance conclusion of domicil. The dis- such may tinction one is that while several residences, have may only one domicil. RESTATEMENT OF CON- (1934). following In FLICTS discussion, use I will §
449 “residence,” the those are because “resident” and terms the law; how- the case appearing in both the statutes and terms legal respondent’s ever, precise is domicil. the issue statutory constitutional, residence, determining are there In disagreement guidelines applied. I have no and case law (1887) Pedigo Grimes, majority’s restatement with the v. when that residence established 113 13 is N.E. place particular person definitely a a “. . intend to make . [s] good upon that intention in permanent and residence act[s] although appears faith,” little broad. such restatement a legal Pedigo was portions standard from which the gleaned states: court, therefore, not, can the the “We disturb decision of testimony clearly persons unless the that the who shows they illegal the were asked to state for whom cast voted votes. testimony Taking the This the that can be does not show. view testimony appellant, most favorable to the utmost is, of it that entered the said voters University Bloomington entering at time of without having making place formed a definite intention of that they residence, subsequently their that determine but did right gave it should be their residence. This them the vote, because there is no evidence that this good intention, their think formed acted faith. We they gone Bloomington clear, it if had remaining simply students,
the intention of
as
there
change
intention,
they
acquired
no
would not have
Granby Amherst,
Fry’s
1;
residence.
v.
(10
7 Mass.
Election
698;
Case,
Irwin,
Am. R.
71 Pa.
302
v.
Dale v.
Ill.
St.
Vanderpoel O’Hanlon,
170;
[*] [*] person can, conceive, make no difference “It we good faith to make the if he has elected student, ais college residence, is located since there place where why may imaginable reason not be both is no college place and a resident where at a student merely student, place college If he is at is situated. resident; then he not a but if place he has selected that abode, acquires as his he a residence which entitles him vote, possesses if qualifications. the other
# [*] [*] “. . instance, . In this citizens, having up taken Bloomington having residence home, no other were although there, entitled to they may vote in- not have *13 always. frequently tended to remain there It is said the is somewhere, books that a man must have a home and it agreed place bodily this home is at the where he is present making domicile, with the intention of it his al- though may change have in view a of residence at some Cooley McCrary Elections, future time. section 39.” Lim., 754; Const. be found in Green v. may A similar formulation of residence Simon, (1896) App. 360, 17 Ind. 367, 693, 46 N.E. 695: general “The is, rule a man can have place but one residence, that, and to lose his place, residence one acquire he must residence in place. another Personal presence place alone at another does not determine matter. He must remove returning without intention of to his home as such. He must remove place to another See Culbertson v. the intent to make it his home. Board, v. etc., 361, 52 cited; Astley Ind. and cases Capron, supra; Moore v. Brendel v. Dunning, 29 130.” also, Ill. See Kugler, Brownlee v. (1951) App. 122 104, Ind. 101 661; N.E.2d v. Duguid, (1931) App. 93 266, Ind. 174; 178 Petty N.E. Petty, (1908) App. 443, 42 995; Ind. 85 N.E. Brittenham v.
Robinson, (1897) 502, App. 18 Ind. 48 616. N.E. finally, in Scott, And State ex (1908) rel. White v. Ind. 171 349, 358-59, 409, 412-13, 86 N.E. we following find the sum- mary: question “The largely of residence is one of A intention. intention, however, mere change place from one to an other, is not change sufficient. To effectuate a of residence the intent fixed to remove unequivocally must be formed, and place settlement another upon, resolved and either accomplished or its establishment upon, entered with no
present returning intention of to the former place, or of departing from the latter. Intention and action co must Pedigo Grimes, (1888) exist. 148, 113 152, Ind. v. Culbertson v. cited; authorities Board, etc., (1876) 52 Ind. Green v. 361; Simon, (1897), App. 17 See, also, Ind. 360.
451 Rep. Fry’s 302, Case, (1872) 10 Am. Election 71 Pa. St. change purpose ‘a 698. such said in a recent case We change unaccompanied by or residence, actual removal change Eel abode, of domicile.’ does not constitute a 433, (1900) rel., 155 State, River R. Co. v. ex Co., Chesapeake, etc. R. effect see To the same v. Penfield 24 Sup. Ed. (1890) 134 Ct. L. U.S. collated. Eng. Ency. 697, and cases (2d ed.), Am. and Law floating intention, it as is some unsettled, An indefinite or permanent or residence home called, to establish a times locality the actual affect undetermined does not some into journey may that a it here be said residence. So territory inspection, accompanied another state state, such other permanently to remove to with an intent satisfactory found, does not amount place aif been approved location has change an of residence until step chosen, affirmative only some but not taken in the transfer to the discovered from the former personal effects only home.” bona place, latter fide pre- Moreover, case law indicates the above review determining one’s residence. may useful sumption Green, supra: According to may consideration, connection, “We take into
presumption a shown to the residence of place place until particular a continues in that been in also, contrary ex White v. is shown.” See rel. Scott, Kline, (1973) supra; but Vlandis see v. U.S. 2230, L. 2d 37 Ed. 93 S. Ct. 3-1-21-3, guidelines statutory set are forth Ind. Code The § (Code Ed.), provides: which Burns 29-4803 § determining. determin- “Residence voters —Rules —In for ing precinct a voter the election boards residence of they governed by following so far as shall rules be applicable: are “(1) person gained shall not be A considered to have a any county residence in porary into which he has come tem- for merely employment, educational, purposes other or making county permanent without intention such his home; “(2) goes county person If a another state or into within making residence, this he shall intention it state with the considered have lost in this be to his residence removed; county state, or the from which he “(B) If a the in- removes to another state with remaining place tention of there for an indefinite time as a residence, of dence in this he shall to have lost his be considered resi- notwithstanding state, to he intends return time; at some future “(4) shall be establishment place family a where immediate resides man’s temporary residence, if considered his it but be family, for his immediate or transient purposes considered; it shall not be so “(5) If a living man has family his immediate in one place and another, he does business in shall former be considered residence, but up when a man has taken any place abode and his shall be there, remaining with the intention of family refuses to him, place reside with then such residence; considered his a married woman not living in a may household with her husband establish from, voting separate husband; her residence “(6) Subject provisions to the of this article [3-1-1-1— 3-1-33-2], single man residence of shall be considered usually be sleeps; to where he “ (7) person employed temporarily No in the construction repair any railroad, canal, or municipal, other or work public nature, of acquire or state or project federal work shall any precinct residence into which came purpose; for such provision but this shall be held to agents extend to station or permanently sectionmen who reside in such precinct, right determining and in any person employed by any company a railroad or public register vote, work to all the members of the precinct election he is a board shall satisfied that bona- precinct temporary fide resident not there purposes merely, unsupported shall and his affidavit not be necessary any held conclusive as to fact him entitle vote; “(8) soldier, seaman, marine, army navy No or of the to or of their allies, United States shall be deemed acquired consequence residence the state in having same; been within the shall stationed nor soldier, right vote; such seaman or marine have the “(9) Any permanent inmate of a shall be soldier’s home precinct resident considered a same is located; *15 “(10) person shall No have deemed to lost residence by in the state reason of his absence either on business of States; this state or of the United
453 person adjudged feeble minded “(11) or If a is insane feeble insane or to an institution and is committed gained a resi- not be considered have minded, he shall county, township, voting purposes ward dence for he is committed to which the institution precinct is which located. Those provisions Art. 3 are
The constitutional §§ (10), (8) 3-1-21-3 correspond with Code provisions § (Code Ed.), re- are (8), (10), and so Burns §29-4803 peated here. Facts.
2. Statement hearing found, supports, such officer and the record
finding that: City, April 24th, 1932, Respondent “The was bom Tell family grew up living
Indiana, City, in Tell with his at 914 Eleventh Street.” origin City. Tell
Thus, respondent’s domicil of was finding significant The next is: graduation September “In after his three months Respondent University, called active
from Purdue was duty in the Air Force. United States years “Respondent spent two Air United States during period duty, Force, stationed was entire active metropolitan Washington, D.C., in the area.” portion 3-1-21-3, of Ind. Code Burns 29-4803 Under § § Ed.), supra, provides, person be deemed (Code “No shall by ab- in the state his residence reason of his lost States,” respondent’s on business ... of United sence ... origin Air Force. not lost while he domicil of pro- RESTATEMENT OF CONFLICTS Section : vides OF
“DOMICIL CHOICE. through acquired, “(1) domicil domicil of choice A legally will, his own who is the exercise of changing capable domicil. choice, person “(2) acquire estab- a domicil must To making it his dwelling-place the intention of lish a home. *16 “(3) physical fact presence The dwelling-place at a they concur; intention to it a home make must if so, moment, change do even for a place. of domicil takes “(4) acquire A can only a domicil of choice in one ways:
of three
(a) having home, acquires no he place home in a domicil; other than his former (b) having gives a home in place, one up he it as such acquires place; new home in another (c) having homes, regard two he comes to the one of previously them principal his domicil as his
home.” left military After service, the facts indicate gave up origin that he (Tell his domicil City) and estab- choice, lished a domicil perhaps several, metropolitan Washington, following D.C. area. The findings, supported by the change. record indicate such
[*] “2. [*] [*] leaving “Prior to his duty active with the United States September Air Force in 1956, Respondent obatined employment with the Department United States of Com- merce Washington, in beginning job D.C. Before Department the month Tell Commerce, Respondent took a one spent family vacation and the time with his in City, Indiana. in at Force, “While the Air Respondent commenced Law Georgetown University School D.C., in Washington, attending night. school at July “In 1959, Respondent job left his with the Department of Commerce and Depart- went to work in the Navy ment of Washington, stayed D.C. He of with the Department Navy May until at which time he employed by Department was as a Patent the United States of Justice Attorney in Washington, D.C. “Respondent’s employment Department with the of Justice early April continued until at which time he resigned of the he because was a Judge Candidate the Office of Perry Perry County, Circuit Court Indiana. “6. government thirty-second Evrard’s page David “At the appears out personnel filled there and document record Evrard, signed by which Evrard, David E. David a E. King out as 3700 space ‘Legal filled Residence’ Alexandria, Virginia.” Street,
“7. registered 30, 1968, September David E. Evrard “On filling by personally Arlington County, Virginia, vote registration signing form voters out Arlington, Virginia, St., as 4262 35th address listed his SO. King Street, Alex- previous as 3700 address registration con- Virginia. form said voter’s andria, tained the *17 following registration oath: “ OATH ‘REGISTRATION “ hereby registration quali- application make for as a T Evrard, Arlington, Virginia. I, E. fied voter David of (or affirm) solemnly I am entitled to do register and that I am swear State, the laws of this and under Constitution right exercising disqualified the not from sufferage by Virginia. the of Constitution E. DAVID EVRARD
“‘s/ ” Signature of Voter’ “8. making mar- 28, 1969, application for a “On November riage Indiana, Evrard County, David E. license Harrison writing place on that his of residence stated under oath Road, Church, Fairfax 3224 Falls date was Graham Virginia.” County, “9. days 8, later, 1969, “Ten David E. Evrard December Jacqueline Ele- personally mentary Buckler in Hill enrolled Walnut Jacqueline Evrard, and, under the name School out, filled E. form which he David Evrard’s on the enrollment name ‘step father’ appears line the ‘Father’ as on the for ‘Margaret shown, Anne’, no last name with words name. In space provided for the Mother’s appear in the ‘Family Respondent Ad- document, set out the this same Road, Church, Virginia.” dress’ as Falls Graham
“19. registered 4, 1970, two auto- David E. Evrard “On March licensing vehicle bureau with the motor mobiles Virginia, giving Road, his as 3224 address Graham Church, Virginia.” Falls Additionally, respondent purchased the record indicates that resale, for rental refurbished real and maintained estate property in the D.C. area. respondent employment
While all remained at times in the government service, I U.S. from after his severance foregoing clearly respondent believe the evidence shows finally area, established domicil choice D.C. Church, Virginia. at Falls I conclusion notwith- reach this standing provisions Code §3-1-21-3(10) respondent which majority (“From apparently relied graduated through when he July, 1970, from Purdue completed Perry County, respondent time he move military absent from the State Indiana reason of employment Government,”) service and his with the U.S. applicable. finds candidacy statute, supra, declaration of indicates proper place filing for candidacy a declaration of
office secretary state, of circuit court county point determining clerk. The critical whether respondent had established a in Indiana new domicil of choice 7, 1970, is not March the date when filed Perry County, rather, declaration in but March *18 respondent when swore the truth of to his declaration candidacy 16, 1970, and March when was it filed with secretary of state.
Respondent alternatively maintained, majority and the opinion implicitly holds, respondent acquired that a new Indiana, prior domicil in of choice to March This 1970. finding upon: based
(1) Respondent’s Thanksgiving and to visits Christmas City 1969; Tell in (2) visits, including party Political and caucuses with leaders public candidacy, during announcement of 1970; January, February, March, months of Respondent’s testimony up to (8) that made his mind he 1970; early January, in run for the office testimony (4) Respondent’s his friend who him about respondent a consulted realtor, City, finding in in sometime home a Tell early January, 1970. to majority apparently finds these actions sufficient The unequivocally respondent’s intent to remove was show that City Tell resolved formed, settlement fixed Church, returning present to intention of Falls no supra. Scott, ma- Virginia. The State rel. White v. See ex to is sufficient rebut evidence jority the above finds Church, respondent’s Falls residence in presumption that supra. Virginia Green, as of March See continued sustain this record does not conclusion. setting portion Before out that demon- record which respondent’s plans City to return Tell had strates to following unequivocal, yet sections, comments and become OF should illustrations of the RESTATEMENT CONFLICTS considered: REQUIRED. 19. NATURE OF INTENTION “§ acquisition required “The intention domicil fact, an and not of choice is intention to make home acquire an a domicil. intention “Comment: acquire make and desire to domi- “a. Intention to home have domicil cil. A sometimes desires get the of one or more place, in order benefit certain having legal there, consequences a domicil but change place; this desire home to that wish to does not place effect in has no a certain domicil to fixing there. his domicil $
Í “Illustrations: Y; X, A, desires to vote state domiciled “1. registration intending goes day, claim there on there, intending to make a home there, but not a domicil
458 put his name voting has on the list as domiciled
there. He is not domiciled in Y.” 20. PRESENT INTENTION. “§ acquisition “For the of a domicil of choice the intention to make a home must an intention be to make a home at the moment, not make to a home in future. “Comment: possess requisite “a. In intention, order to one say my not, home, must be able to this but, is to be my
is now home.” also, (4), §3-1-21-3(3), See Code Burns §29-4803(3), supra. (4), (CodeEd.),
The record shows that the declaration candidacy filed secretary 16, 1970, completed with the of state on March notary to Washington, sworn before a on March D.C. dates, family respondent, 1970. On those wife and his Road, lived Virginia, Graham Church, re- Falls spondent’s stepchild attended school in Falls On Church. 4, 1970, respondent procured Virginia March new vehicle registration. steps respondent
Most of overt took in demon- strating City intention transpire his move Tell did not until candidacy after declaration had been The filed. steps first of mid-April these respondent occurred when resignation Department, thereby submitted his to the Justice severing financial lifeline. testimony regarding registration carefully scrutinized, should for it shows respondent yet had not April, middle of 1970—irrevo- —the cably Indiana; committed himself he had to discuss resign run, matter with his wife whether to decide employment or to withdraw from the race and continue his Department. Justice respect resignation, With to his testified at hearing Judge before follows: Rabb as E. BY OF EVRARD DIRECT EXAMINATION DAVID BUNNER, THE RESPONDENT JOHN COUNSEL FOR G. Q. right. your regular employment with did “All the When *20 Department cease?” Justice regular em- April “In That was when A. way employed as ployment under the former I
civil servant ceased.” Q. you tell that came us how about?” “Will my A. called asked Ruckelshaus me at office and “William me to come over the civil to office. He was head of Department time. of the division that Justice got Baize, there, recall, as I both he and Mr. When I his assistant, present and, almost that’s were I’m sure right, sure present and almost know Mr. Baize was I’m I they They me that had been Bill was. informed candidacy public for a office that had filed informed and I they to I intended that to know whether wanted stay Department or run with for office.” —” Q. it more less an either or “Was definitely an either A. “It was or.” your
Q. you “So, did inform them at time of uh, ?” intentions recall, very inform them at that moment. A. I I didn’t “As hap- my her had think called wife and told what I I already up made our mind and pened. We had changed thing fact only this could have longer employment and would even without that which be we savings try on our had to to live meant we her went ahead ask before I felt I should I him.” told you April, Q. part of do know ?” this was in what “And exactly it was.” April, I recall when don’t A. “Mid [R.p. 116-117.] testified February 5, 1975, deposition, on
In his as follows:
QUESTIONS MILLER, BY DAVID V. SPECIAL
PROSECUTOR Q84 resign you April ?” intended “Had resign early Spring; intended I didn’t A. “I know, particular picked out didn’t No. date because I necessary actu- exactly for me to when it would be Perry County ally physically present because purposes; County- of election I discussed that with the Chairman.”
Q85 you “Did someone have a conversation with indicating Department you Justice that it would be necessary you resign your because of candi- dacy ?” (spell), A. “Both Ruckleshaus was then head William who Department Justice, the civil of his division Bayes ; assistant, Gary (spell) I to both talked them.” Q86 your opinion employ- “Were both ment dacy them Department your candi- of Justice political for a office were violations of the Hatch Act?” they A. “That’s said.” what Q87 “Did those April conversations occur in ?”
A. “Yes.” Q88 your resignation “That was reason for ?” A. “Yes.”
[*] [*] [*] *21 Q92 telling you resign you that “Before discuss the matter with them would did anyone matter of —not being you anyone did confer rehired —but with about you resign?” not should whether or having so; my A. “I can’t recall done I’m sure I called wife.” finally, Gary Baise, H. And at the respondent’s who time of resignation serving special was assistant Assistant to the Attorney States, General deposi- United in testified his tion, matter, filed record as follows:
QUESTIONS BY BROWN, J. HOWE COUNSEL FOR PETITIONER Q. you any “Did have connection with Mr. Evrard terms employment of his work or his ?” “No, really, A. day-to-day no. Not on a basis.” Q. “What were the you occasions that caused to become acquainted with him?” A. met “I Mr. Evrard first when (pho- Mr. Ruckelhouse netic) practice and joined and I department, because it was a go every attorney ours to around to see every individual department who worked in the That approximately time. would have been March April or of 1969. only “The other occasion I had to meet Mr. Evrard was approximately March of 1970.” Q. that occasion ?” was “What brought my “It had been that he was A. attention running an Indiana.” office State Q. you anything have do or conversation “And did regard Mr. to that information ?” Evrard with “Yes, A. I did.” Q. that conversation ?” substance of “What appointment and asked an I called A. “I Mr. Evrard in the running public office State for a him if he was of Indiana.” Q. give?” response did Mr. Evrard “What replied he “He was.” A. Q. place took ?” further conversation “What give time, him advised him that would “At that I I
A. really One, he could withdraw from two choices. Department remain office and Justice regarding nothing in his file enter would I advised was—or at least I was Act, which he Hatch violating time; he at that would he that to leave Department of employment Justice in violation of Hatch he was obviously, because
Act.” say Q. you him of this ?” advised “You affirmative) (Nods
A. response he make ?” Q. did “What his wife and he to call recall, he said wanted “As I A. her about situation.” talk with place took ?” Q. conversation “What my afternoon, and recall, left officethat “Again, as I A. following day. me that He told the this matter with him from heard I wife, and he had discussed he thought return resign position and would that he Indiana.” resign position ?” fact he in Q. “Did “Yes, he did.” A. *22 respondent’s purchase significant overt act was next
The following primary May 8, 1970, the City, Tell on a home of City family to Tell Finally, respondent moved his May 5. of in mid-summer. respondent consider the fitting proper to acts
It is determining that intent 16, 1970, to March prior 462 bootstrap approach, however, a to the It is consider
date. date, majority opinion that occurred after the events which as establishing respondent’s does, as intent on March record, respondent’s prior From the acts March to language demonstrate, paraphrase not to do the § supra, CONFLICTS, OF an intention the RESTATEMENT City fact, only Tell a home in make but demonstrate to acquire a domicil. desire opinion is of the that writer not was required candidacy
qualified voter the declaration of guilty charged. is, therefore, statute the offense
II. charged aiding Respondent abetting his also with in her violation wife election laws this state which voting. prohibit from nonresidents These laws are set out majority opinion. very cursory In treatment charge, majority states: legal “. . . we find that same test of residence determining applied respondent’s should be whether or not voting established a residence at home of her hus- wife Margaret appear parents. that band’s It would to us Evrard voting right adopt to choose to residence had her husband. voluntary her By of this choice and reason
marriage claim the respondent, she is entitled to benefit parents’ therefore home. We of his connections with find support con- is insufficient evidence his wife respondent aided and abetted clusion unlawfully conspired violating law, or the election violate the law.” to so father domicil of husband is the
Ordinarily, the domicil of the 355; (1865) Code Ind. Jenness, Jenness wife. v. separation (Code Ed.). no 29-4803 Where 3-1-21-3, Burns § § respondent’s, occurred, finding to have is shown law, re Virginia dictates, as matter domicil Virginia domiciliary. con Such also spondent’s wife was principle of solely however, rest clusion, does voting of regard residence and to the With announced. law *23 468 following respondent’s wife, hearing officer made the findings:
“12. May 1970, 3, “On David E. Evrard from the traveled State Virginia being City, Indiana, purpose of present to Tell for the of Primary to cast his in the Election on vote Indiana trip May 5, accompanied 1970. David on E. Evrard was by Margaret Respondent’s Evrard, who, Ann Buckler with Primary knowledge, of Election also in the Indiana voted said May 5,1970.” “20. “Margaret Ann Yowaiski Buckler was bom in Evrard Maryland Washing- only Maryland in the lived ton, July moving area until of 1970. D.C. to Indiana registering Perry County, In 7, Indiana on March vote St., 1970, Margaret gave Ann 914 11th her address as City, that Tell Margaret evidence Indiana. There is insufficient had Ann her residence at that address.”
“21. May 1970, Margaret “On Ann Yowaiski Buckler Evrard Primary Perry County, Election, voted in Indiana. the Indiana Margaret vote, In order to cast traveled such Ann May Virginia private in a air- to Indiana from 1970 by All of these flown and craft owned David E. Evrard. Margaret Evrard, by were actions Ann Yowaiski Buckler knowledge the full David done of E. Evrard.” with stipulation addition, parties’ facts, in the In we find: Margaret (Evrard) “19. from Anne Buckler was divorced Raley by April Lawrence DIVORCE A Buckler on DECREE OF Circuit Court MATRIMONII VINCULO Arlington Virginia depositions County, the basis living Margaret taken Anne was 2-3-70. 2-3-70 On Church, Road, Falls at 3224 David E. Evrard Graham Virginia deposition stated said she course of Virginia domiciliary herself to be that she considered there, name that her was remain and intended to Deposition Margaret (Contents been Buckler. Anne stipulated)” Margaret an Indiana Ann Evrard was first issued “21. time, that January, 1972. Prior to she Driver’s License Margaret the name of Anne under to drive licensed was Maryland.” by the Yowaiski Margaret clearly Anne Evrard shows
The record whole primary voted in the not a of this state she resident when respondent flew election of 1970. The record also shows purpose voting election. in said her to state charge majority’s supported This sufficient evidence. hearing finding there officer’s failure to address is inexcusable. Mrs. residence evidence of Evrard’s insufficient time, there same a review the record indicates At the *24 any conspiracy to presented violate insufficient evidence was I, involving there- father. respondent and his the above laws fore, majority. finding the concur with such
III. against charge respondent and he aided The final is that bigamy. felony commission of the abetted wife knowledge majority had no While finds that alive, Mrs. husband still review Evrard’s entire not lead record does conclusion. parties stipulated authenticity following to the
facts: January 12, Raley “12. Margaret Evrard) 1964, On Lawrence and Buckler (now Margaret Yowaiski known as Anne Anne Washington, married in Two children were D.C. Jacqueline marriage: Buckler on
were born of this Denise Joseph In and Michael Buckler on 1967 5/27/64 Mr. 5/16/66. separated. Buckler To the best of David Mrs. knowledge, Buckler chil- Evrard’s Lawrence last saw said Spring of 1968.” dren or Summer Raley into United “18. States Buckler inducted Lawrence 1968, draftee; Army 12, he served in November discharged in and was in 1969 Vietnam Raley stipulated (Army Buckler of Lawrence Record genuine)” Margaret Buckler or Anne Neither Evrard “14. David any report any member from received official ever Evrard of Lawrence in his any Army source that other official or the United States missing action Raley killed Buckler was during dead at time captured or otherwise action or Army.” United States service marriage Margaret “15. The Anne Yowaiski Buckler Raley and Lawrence by Buckler was not terminated death.” August, In 1969, “16. David Evrard contacted Everett Germain, Attorney an practice licensed to Virginia regarding filing aof divorce action on behalf Margaret against Raley Anne Buckler Lawrence Buckler. employment accepted purpose Mr. Germain for said September said divorce action was filed on Arlington County being Court, docketed as Circuit Chancery Cause #19755.” “17. On December 1969 David E. Evrard married Margaret Anne Yowaiski Buckler at Erenchtown, Harrison County, pursuant marriage Indiana by to a license issued County, Application Clerk said based an Marriage signed License under oath David E. Evrard Margaret (The Ann Yowaiski Buckler. contents of Application stipulated).” said have been “18. application On date when said was made and signed David E. Evrard knew that the last name of his prospective bride was Buckler rather than Yowaiski and was, time, that of pending there at that in the Circuit Court Arlington County, Virginia, proceeding for divorce Margaret being filed on behalf Chancery Anne Buckler naming Raley Cause No. 19755 Lawrence Buckler as de- fendant. proceeding On 11-28-69 and 12-29-69 said divorce had not been dismissed nor was David E. Evrard *25 having aware of contact been made with Everett regarding Germaine dismissal thereof.” findings hearing The full of the officer on the issue are follows:
“4. Respondent Margaret “The became friends with Ann Yo- family. waiski and her frequently He her visited family Maryland. Maddox, Margaret near 1964, In Ann Yowaiski married Lawrence Buckler and two children were marriage. born of that 4, 1967, Margaret “On November and Lawrence Buckler separated. After the separation, very there was little con- Margaret tact between Buckler and her husband. “In 1968, November Buckler was Army. drafted into the His wife and children were not listed as next-of-kin, but rather he listed mother. No allotment was taken out Army pay of Buckler’s for his children his insurance and
policy payable was made to mother. Margaret 1969, “In the summer of Evrard and Buck- David year marriage September that she ler and in discussed against He was Lawrence Buckler. filed suit divorce relating to documents served while in Vietnam with the Law, repre- Virginia proceeding was pursuant and to by hearing April court subsequent 1970, in sented at attorney. appointed 1969, Margaret that Buckler told “Later in the was Fall in died been killed or had Lawrence Buckler had either name address was unknown Her informant’s Vietnam. findings. these Margaret out in hereinafter set to Buckler as conver- immediately Respondent of this informed “She year, Thanksgiving of that vacation over sation and County, In- marriage Harrison they license in obtained diana. Margaret 29, 1969, Buck- Evrard and David “On December Indiana, County, in Harrison ler were married time, a Roman is, at that was Respondent’s Catholic Brother who Priest. prior his mar- Respondent of never married to “The had been
riage 29th, December prior making period application “From a of time to his marriage Indiana, County, in Novem- license Harrison marriage subsequent and until a time to ber on December Respondent believed Lawr- though fact, dead, Raley even did was, ence Buckler Mar- he received from nothing verify information garet Ann. Margaret “Subsequent marriage, received Evrard her to believe that there was information caused conveyed alive, and Buckler possibility that Lawrence was Respondent. such information Department inquiries De- Respondent made “The in fact Buckler was time later learned fense and some alive. proceeding “Margaret the divorce proceeded with then granted 1969, and September of she
had been filed a early April of 1970. Buckler divorce from Lawrence May 5, 1970, prior granted her divorce “After remarried Margaret Evrard were *26 Evrard David Tijuana, Mexico.” “13. “Margaret supposed Ann Evrard heard of the ‘death’ of her whose name Raley person first husband, Buckler, Lawrence from a relationship cannot she remember and whose gave explain. Buckler Mr. she cannot this informa- She Margaret Respondent. tion to Ann the Re- Buckler spondent nothing verify the did made no effort Raley account of the ‘death’ of Lawrence Buckler. Neither attorney Respondent Margaret Ann informed Buckler Germaine, Margaret at- Everett Buckler’s who was Ann torney concerning action, in her the ‘death’ of divorce Mr. Buckler.”
“14. marriage her to David “That than one month after less Margaret awith Evrard, Buckler conversed Ann Evrard prior place employment, heard that person her Respondent’s does Raley wife Buckler was alive. Lawrence not remember or the the occurrence the exact time of conveying identity such information.” “15. 29, 1969, on December the date of finds that “The Court Raley marriage, that Lawrence Buckler was alive.” “16. April Divorce rendered in the Decree of “After marriage Margaret terminating Ann Buckler Margaret Raley Buckler, Evrard and David E. Lawrence Tijuana, Mexico and were married Buckler went Ann again April 18,1970.” hearing stipulations of these fact and In addition to findings, whole, particularly as a testi- the record officer’s Evrard, scrutiny closer deserves than mony Mrs. gives incredulous, opinion majority it. It least, make
say a mother of two children would not stranger being by that her inquiry advised further been father of her children had killed husband and knowledge only that advice of death It is common war. messenger. had a official Evrard cases travels Mrs. such college junior one high education and attended school learning pur- her year. that on testified husband’s She ported death: *27 my biggest thing “. the time . . mind that was truly respected, a that had man wanted to I I my going
marry to me care was be and take of children. I electricity guaranteed turned off and my and clothes and not food things. most im- all of the That was the thing portant me at that time.” to condition, Although apparently about her financial concerned procure any death effort to made no whatsoever Mrs. Evrard might family or have been entitled. her to which she benefits death, respondent her husband’s Evrard told of Mrs. When Defense, Department verify of the death with failed to he military although familiar with the the record shows he was former member the armed himself a of and was locator service notify at- respondent or Mrs. Evrard Nor did forces. respondent for Mrs. knew and selected torney, whom the procuring in divorce Evrard, terminate his efforts her to short, the rea- Buckler. In evidence and Lawrence from inescapably conclu- lead inferences therefrom sonable respondent he married Evrard Mrs. sion that knew when marriage by the had not been terminated that her former by decree or death of her husband divorce.
IV. charged transpired respondent actions for which election, respondent prior served election. Since his has judge Perry responsibly position in Court. as Circuit hearing by respondent, Based on evidence introduced found officer that: good Judge “Respondent reputation excellent has as high regard Judges Attorneys in as such
and is held Indiana.” Southern Perry respondent has conducted the It commendable is Judicial Ethics. accordance with Code of Circuit Court respondent not adhere to the same did It unfortunate is high a candidate. standards when respondent’s Perry Circuit
Impressed by service disregard ignore majority opinion has chosen to or bench, the guilt as respondent’s demonstrate record which facts charged. might
Respondent’s post-election be considered conduct should mitigation finding guilt, punishment upon it but acts deciding guilt innocence of the not considered charged. my
It
three
is
belief the record
a whole sustains
charges against
transgressions
respondent.
are
such
These
good
conscience
this
not
serious nature that
Court should
ignore
issue
very minimum,
Court should
them. At a
public reprimand
definite
consider a
should
period
suspension. Only then
announce
would we
yet
judicial
judge
circuit
vehemence that
the office
*28
prize
in a
holds are barred.
where no
race
Reported at
Johnie B. Wilson Indiana. Rehearing September 274S41. Filed denied [No. November 1975.]