Martin M. McMahon, Esquire
County Attorney for the County of Montgomery
755 Roanoke Street, Suite 2F
Christiansburg, Virginia 24073-3182Dear Mr. McMahon:
I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.
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- Issue Presented
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- Response
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- Background
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- Applicable Law and Discussion
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For purposes of voting, and thus holding elective office, Virginia law provides that "residence" and "resident" require "both domicile and a place of abode."8 To establish domicile, a voter or candidate "must live in a particular locality with the intention to remain,"9 To satisfy the "place of abode" requirement, an individual must have a physical dwelling place within the relevant jurisdiction.10 When one maintains several abodes, domicile will control what constitutes residence for purposes of voting and holding elective office.11 As established in the cases discussed below, residence and domicile - terms that are sometimes used interchangeably - are both governed by intent.
In determining residence pursuant to those provisions, the Supreme Court of Virginia has given significant weight to the intent accompanying an officer's presence in a particular district.12 The Court has explained that, where an individual "[leaves) his original residence with the intention of returning, such original residence continues in law, notwithstanding the temporary absence of himself and family."13 Mere absence from a fixed home, however long continued, cannot work the change. Indeed, the Supreme Court of Virginia has held that a college student who lives in Virginia for several years has not established residency here, despite the length of time spent here, in the absence of evidence that he intends to abandon his prior residence in Florida.14 It has also held that a citizen who established extensive, wide-ranging, and meaningful ties to a Virginia community over a period of several years was not a Virginia resident because he did not intend to give up his legal domicile in West Virginia.15
As to domicile, "[t]here must be the animus to change the prior domicil[e] for another."16 Moreover, "[w]here a man has two places of living, which is his legal residence is to be determined largely, where the right to vote or hold office is involved, by his intention."17 There is a presumption that a domicile once acquired subsists until a change is proved, and the burden of proving the change is on the party alleging it.18 Accordingly, I conclude that an officer will not be deemed to have vacated his elected office unless he also demonstrates an intention to establish a permanent residence outside of his original district.19
Finally, as to "place of abode," the facts under consideration entail the supervisor being required to live outside his district for only nine months per year and retaining ownership of his home within his district, with the intent to return to it. Under these facts, he has a physical dwelling place20 within the district and thus satisfies the requirement of having a "place of abode" within the district.
Conclusion
The question of intent is a fact-specific inquiry, and domicile is "determined by considering relevant factors establishing a person's intent to remain in the jurisdiction."21 As a result, whether a particular person fulfills the residency requirements for holding an elective office is a question beyond the scope this Opinion.22 Nevertheless, it is my opinion that, as a general rule, when a member of a county board of supervisors relocates to another district within the county for a temporary job for nine months a year, with the intent to continue owning his home and maintaining his domicile within the district from which he was elected, and with the intent to return home after completion of his temporary employment, he has not taken up automatically, or as a matter of law, a new residence for purposes of § 15.2-1526.23 Thus, he has not vacated his elected office.
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- With kindest regards, I am
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- Very truly yours,
Mark R. Herring
Attorney General
- Very truly yours,
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- With kindest regards, I am
1 See, e.g., VA. CONST. art. 11, §§ 1, 5; VA. CODE ANN. § 242-500 (2011).
- 2 VA. CONST. art. II, § 5.
3 VA. CODE ANN. § 24.2-101 (Supp. 2013); see also VA. CONST. art. II, § 1.
4 VA. CODE ANN. § 15.2-1525 (2012).
- 6 Section 15.2-1526 (2012).
7 2003 Op. Va. Att'y Gen. 104, 107.
g VA. CONST. art. H, § 1; VA. CODE ANN. § 24.2-101. 9 Section 24.2-101.
I° hi; see 1993 Op. Va. Att'y Gen. 33, 40.
12 See, e.g., Kegley v. Johnson, 207 Va. 54, 58, 59, 147 S.E.2d 735, 737, 738 (1966) ("The crucial factor, then, in the case before us, is [the prospective voter's] intention with respect to his stay in Albemarle County. . . We simply say that [his] presence in [the] County, without the requisite domiciliary intent, was not sufficient to qualify him as a resident for voting purposes.").
13 Dotson v. Commonwealth, 192 Va. 565, 571, 66 S.E.2d 490, 493 (1951) (discussing whether a member of the board of supervisors of Dickenson County who relocated to Wise County vacated his office). See Williams v. Commonwealth, 116 Va. 272, 277, 81 S.E. 61, 63 (1914) (holding that "[a] legal residence, once acquired by birth or habitancy, is not lost by temporary absence for pleasure, health, or business, or while attending to the duties of a public office.").
- 14 Kegley, 207 Va. at 54, 147 S.E.2d at 735.
16 Id at 347, 93 S.E. at 682 (italics in original) (quoting Lindsay v. Murphy, 76 Va. 428 (1882)), accord Harrison v. Harrison, 58 Va. App. 90, 103, 706 S.E.2d 905, 912 (2011). 1 note that, although not necessarily conclusive, the length of the absence likely is a factor in determining intent.
- 17 Dotson, 192 Va. at 571, 66 S.E.2d at 493. 19 Williams, 116 Va. at 278, 81 S.E. at 63.
- 20 VA. CODE ANN. § 24.2-101.
21 1993 Op. Va. An)/ Gen. at 39.