Opinion No. ( 1992 )

The Honorable H.G. Foster Prosecuting Attorney 20th Judicial District P.O. Box 1105 Faulkner County Courthouse Conway, Arkansas 72032

Dear Mr. Foster:

This is in response to your request for an opinion on two questions regarding the service of an incumbent justice of the peace who, prior to the 1992 general election, allegedly moved his residence into another justice of the peace district. He won the election to represent his former district and still allegedly resides outside that district. You pose two issues for resolution: 1) whether the justice of the peace is currently properly serving; and 2) whether his paychecks should cease immediately, or whether some type of legal action is necessary.

It is my opinion that both questions are addressed by statute. Section 14-14-1306, a part of the county government code, provides as follows:

(a) All county, county quorum court district, and township officers shall reside within their respective townships, districts, and counties.

(b) An office shall be deemed vacant if a county officer removes his legal residence from the county or if a district or township officer removes his legal residence from the district township from which elected.

(c) For purposes of this section, legal residence shall be defined as the domicile of the officer evidenced by the intent to make such residence a fixed and permanent home. [Emphasis added.]

The primary factor in determining domicile is intent. As stated in Brick v. Simonetti, 279 Ark. 446, 449, 652 S.W.2d 23 (1983), "[g]leaning a state of mind is uncertain work, at best, yet intent, in large measure, determines where one's home is." Intent is relevant in determining domicile if there are two potential places where a person's residence may be, or if a person leaves one residence temporarily with the intent to return. Davis v.Holt, 304 Ark. 619, 623, 804 S.W.2d 362 (1991). The question of intent is one of fact to be ascertained not only by the statements of the person involved, but by his or her conduct as well. Shinn v. Heath, Director, 259 Ark. 577, 535 S.W.2d 57 (1976). Factors to be considered in determining the requisite intent are declarations of the parties, exercise of political rights, payment of personal taxes, a house of residence and a place of business. Gooch v. Gooch, 10 Ark. App. 432,664 S.W.2d 900 (1984).

Because the issue of residence in each case is one of fact, this office cannot provide a definitive answer to your first question regarding whether the justice of the peace you describe is domiciled in the district so as to meet the requirements of the statute. This factual question must be decided in the first instance either in a judicial proceeding or by the quorum court pursuant to the provisions of A.C.A. § 14-14-1309(a)(2), which provides the answer to your second question.

Section 14-14-1308(5) provides that a county, quorum court district, or township office shall be considered vacant if, among other things, "the incumbent ceases to meet any residence requirements for office." Section 14-14-1309 (a)(2) gives the quorum court the authority to declare such offices vacant "[u]pon determination . . . that a condition of vacancy exists. . . ." The statute provides that the determination of vacancy shall be conducted through the process of resolution as prescribed by law if the resolution shall have been published prior to the meeting date in which the resolution is to be considered. A.C.A. §14-14-1309 (a)(2). Subsection (b) of the statute allows the officer whose domicile is in question to appeal the declaration of vacancy to the circuit court within thirty days.

Your first question therefore is one of fact, to be determined either in a judicial proceeding, or by the quorum court with the right of appeal. In response to your second question, the justice of the peace in question should continue to receive his paycheck until he is declared ineligible pursuant to one of these methods.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh