Type in a key word or two concerning the subject or issue in which you are interested in the box at the upper left and tap enter to access any relevant material posted.


Wednesday, August 24, 2016

Determining “continuous residency” for the purpose of qualifying for public office or employment


Determining “continuous residency” for the purpose of qualifying for public office or employment
Glickman v Laffin, 2016 NY Slip Op 05842, Court of Appeals

Candidates seeking election to the New York State Senate must meet the five-year New York State residency requirement and the one-year Senate District residency requirement as set out in Article III, §7 of the New York State Constitution. In addition, such candidates must meet the provisions of Election Law §1-104 in which the term "residence" is defined as "that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return.”*

The Court of Appeals said the primary issue presented by this appeal as whether Steven Glickman, a candidate for the office of State Senator, satisfies the State Constitution's five-year residency requirement that candidates for legislative office are required to satisfy.

In view of Glickman's 2014 registration to vote in Washington, D.C., the court said that his Washington, D.C. registration to vote in that jurisdiction “precludes him, as a matter of law, from establishing continuous residency in New York within the meaning of the Constitution” at this time.

The court explained that residency is typically a factual question and depends on the intent of the individual. As was held in Matter of Ferguson v McNab, 60 NY2d 598, the crucial element for electoral residency purposes “is that the individual must manifest an intent, coupled with physical presence ….” Further, said the court, “according to the record of the 1938 Constitutional Convention, the intent behind the residency requirement was to “ensur[e] that legislative representatives have contemporaneous familiarity and involvement with the issues facing the state and the community they represent.’”

The Court of Appeals the observed that although a person is permitted to have more than one residence, he or she is not permitted to have more than one electoral residence. As Washington, D.C. law provides, in part, that an individual “who attests that he or she ‘[h]as maintained a residence in the District for at least 30 days preceding the next election and does not claim voting residence or right to vote in any state or territory’” is a “qualified elector.’”

Accordingly, when Glickman registered to vote in Washington, D.C., he was required to attest that Washington, D.C. was his sole electoral residence and that he did not maintain voting residence in any other state. In the words of the Court of Appeals, “[t]hese factors clearly demonstrate that Glickman broke the chain of New York electoral residency which did not recommence until he registered to vote in New York in 2015.

Thus, concluded the Court of Appeals, Glickman cannot claim continuous New York residency for the past five years as required by the State Constitution.

* This definition demonstrates that the distinction between an individual’s “residence or residences” and that individual’s “domicile.” Frequently the term residence is used when domicile would be the accurate descriptive term. Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have but one domicile at a given time, regardless of he or she actually is living at such domicile, until the individual designates another place as his or her domicile [see Matter of Newcomb, 192 NY 238 at 250 (1908)]. "It is the fixed and permanent home of the elector from which the Constitution, as well as the Election Law, contemplates that the elector shall register and vote." As the court indicated in Weiss v Teachout, 120 AD3d 701, as used in the Election Law, and presumably in the State Constitution, the term ‘residence' is being used to denote an individual's legal status that is more accurately described as his or her “domicile."

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Readers may share material posted in NYPPL with others provided attribution to NYPPL is given.

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.