IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-CA-01026-SCT

HINDS COUNTY ELECTION COMMISSION, CONNIE COCHRAN, CHAIRMAN, J.W.

"JIM" TAYLOR, LELIA RHODES, MARGARET MCLARTY AND RUTH SHIRLEY

v.

HENRY L. BRINSTON

DATE OF JUDGMENT: 10/6/95

TRIAL JUDGE: HON. ROBERT LEWIS GIBBS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

FIRST JUDICIAL DISTRICT

ATTORNEYS FOR APPELLANTS: VICKI R. SLATER

MICHAEL S. ALLRED

JOHN I. DONALDSON

ATTORNEYS FOR APPELLEE: SORIE S. TARAWALLY

LOUISE HARRELL

NATURE OF THE CASE: CIVIL - ELECTION CONTEST

DISPOSITION: REVERSED AND RENDERED - 3/28/96

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 4/18/96

EN BANC.

McRAE, JUSTICE, FOR THE COURT:

¶1. This case involves an appeal from the decision of the Circuit Court of the First Judicial District of Hinds

County which declared Henry L. Brinston qualified as a candidate for the office of Circuit Clerk of Hinds

County, Mississippi. Because of Brinston's failure to rescind his Madison County homestead exemption or

to produce evidence establishing residency elsewhere, we reverse the lower court and conclude he is not

qualified to be a candidate in the race for Circuit Clerk of Hinds County.

¶2. Henry L. Brinston submitted an application for candidacy as an independent candidate for the office of

Circuit Clerk of Hinds County, Mississippi to the Hinds County Election Commission ("Commission") on

March 1, 1995. The Commission wrote Brinston on March 31, 1995 informing him that without further

proof of his residency in Hinds County, he would not be qualified to run for office in Hinds County. The
Commission based its decision on Brinston's homestead exemption documentation which established him as

a Madison County resident. The Commission wrote Brinston on September 7, 1995 and informed him

again to present proof of residency in Hinds County. By letter dated September 7, 1995, Brinston informed

the Commission that his homestead exemption was claimed in Madison in January of 1994, but that he had

changed his residency to his mother's house in Hinds County to 2421 Newport Street in Jackson due to

marital problems. He also provided additional evidence of his attempt to establish residency in Hinds

County.

¶3. On September 13, 1995, the Commission denied Brinston's application for candidacy based on

Brinston's failure to rescind his homestead exemption filed in Madison County. Brinston filed a petition for

judicial review with the Circuit Court of the First Judicial District of Hinds County pursuant to Miss. Code

Ann. § 23-15-963 (1972). After an expedited hearing on September 29, 1995, the trial court reversed the

Commission's decision and entered an order finding Brinston qualified as a candidate for Circuit Clerk of

Hinds County. The trial court subsequently denied the Commission's motion for reconsideration. The

Commission appealed by Bill of Exceptions to this Court pursuant to Miss. Code Ann. § 23-15-963(6)

(1972).

¶4. Since this case does not concern the qualifications of legislative candidates, we find the case of Gadd v.

Thompson, 517 So. 2d 576 (Miss. 1987), overruled in part by Foster v. Harden, 537 So. 2d 905

(Miss. 1988)(1) controlling in this matter. In Mississippi, residence and domicile are synonymous for

election purposes. Gadd, 517 So. 2d at 578. The county of domicile requires that an actual residence be

voluntarily established with a bona fide intention of remaining in that county for an indefinite period of time.

Id. at 578; Smith v. Smith, 194 Miss. 431, 434, 12 So. 2d 428, 429 (1953).

¶5. In Gadd, this Court determined the residence of a legislative candidate for purposes of Article IV, § 41

of the Mississippi Constitution. We held that "the filing of a homestead exemption conclusively establishes

domicile for electoral purposes in the county of filing, regardless of circumstances indicating that certain ties

to other counties still exist." Gadd, 517 So. 2d at 579. Because an individual must be permitted to prove

that his residency is somewhere other than it might appear, this Court clarifies this holding to mean there is a

strong but rebuttable presumption of residency in the county where the homestead exemption is filed. The

location of the homestead exemption creates this strong presumption because of the benefit in the form of

tax relief one receives by filing.

¶6. A closer look at the Gadd case demonstrates that Gadd never negated the presumption that his

residence was in the county where he filed his homestead exemption. Id. at 577-78. The facts revealed that

Gadd remained on the voting rolls in the county he sought candidacy, but that he owned no real property in

that county. Id. at 577-78. Although Gadd maintained a post office box in the county in which he desired to

be elected, he had filed his homestead exemption and paid taxes in a county other than the one in which he

was seeking election. Id. at 577-78. Because Gadd's homestead exemption was filed in another county and

he introduced no other compelling evidence proving residency elsewhere, this Court declared Gadd

unqualified to be a candidate and de-certified him as a nominee for the state legislature. Id. at 579.

¶7. The facts of the case at hand are analogous to the situation presented in Gadd. Brinston's homestead

exemption was filed in Madison County although he remained on the voting rolls in Hinds County.

Consequently, there is a strong presumption that his residence was in Madison County. Brinston was

notified by the Commission of problems with his qualifications based on his homestead exemption in
Madison County, yet he failed to take any kind of corrective action to prove his homestead was in a

location different than it appeared to be. Brinston has shown nothing other than a mailing address at his

mother's house in an attempt to establish residency in Hinds County. He has received the benefit of his

homestead exemption for the entire year in Madison County. Therefore, the lower court's judgment in this

case is reversed as Henry L. Brinston is not qualified to run for the office of Circuit Clerk of Hinds County,

Mississippi.

¶8. REVERSED AND RENDERED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN AND SMITH, JJ., CONCUR.

BANKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS, J.

MILLS, J., NOT PARTICIPATING.

BANKS, JUSTICE, DISSENTING:

¶9. Today's decision has no practical effect on the parties. Indeed, Brinston suggested that the appeal was

mooted by the decision of the Election Commission to comply with the order of the circuit court and place

his name on the ballot rather than take advantage of the automatic stay of that decision which obtained

when this appeal was taken. Moot or not, however, it is clear from the record that Brinston's campaign was

of little real consequence.(2) What is important is the precedent we establish. Because I believe that the

court errs in applying Gadd(3) to the facts of this case, I dissent.

¶10. To begin, I must confess that if Gadd were before the court today, I would not have voted for the

majority opinion. In my view, the electoral process is not well served by the erection of barriers to a

candidacy that have no relevance to the issue at hand which is the expression of the will of the majority of

the electoral unit with respect to its representatives. I would not have regarded the filing of the homestead

exemption application as dispositive of the issue of residency for electoral purposes as this Court did in

Gadd. To the extent that the majority opinion retreats from that position, I agree with its direction. It does

not go far enough, however.

¶11. Moreover, the majority, by applying its lessened standard to the evidence before it, has assumed the

role of fact finder. The original decision of the Election Commission applied Gadd as written rather than as

interpreted by the Court today. The trial court decision distinguished Gadd on the facts but it has never had

the opportunity to determine whether the presumption decreed today had been overcome.

¶12. If the issue is to be decided here, I believe that the evidence before the court is sufficient to rebut the

presumptive effect of the filing of an application for homestead exemption which the majority bestows upon

that occurrence. First, the evidence suggests that Brinston applied for a Madison County homestead

exemption in 1994, not 1995, the year here in question. Later in 1994, he was separated from his wife and

he moved back to Hinds County. He never removed his name from the voting rolls in Hinds County. He

was, at all times relevant, employed in Hinds County. The trial court found, based upon unrefuted evidence,

that Brinston had marital problems and that from and after November 1994 he continuously resided at

2421 Newport St. in the City of Jackson, Hinds County. As distinguished from Gadd, the office sought by
Brinston required residency for a period of only thirty days, not the two-year requirement applicable to

legislative candidates.

¶13. The trial court also noted the difference between the homestead exemption application in Gadd and

that used in the present case. The Gadd application suggested that the home in question was Gadd's sole

residence. Brinston's application made no such assurance, referring instead to his "primary home."

¶14. Finally, in order to give the filing of a homestead exemption application presumptive effect, there must

be a finding that such an application was filed. Our statutory scheme respecting applications for homestead

exemption require no annual application, only if there has been no change in "the property description,

ownership, use or occupancy since January 1 of the preceding year." Miss. Code Ann. § 27-33-31 (1995).

In the event of such a change, a new application is required. The trial court found no new application for

homestead exemption in evidence and that, while taxes had been paid in March 1995, these taxes were for

the year 1994. It is not clear then, whether Brinston ever received in tax benefit for the year 1995. Whether

he did or not, it is perfectly clear that he made no affirmative declarations for the year 1995 out of which a

presumption of residency could arise.

¶15. For the foregoing reasons, I would affirm the judgment of the circuit court.

ROBERTS, J., JOINS THIS OPINION.

1. In Foster, this Court overruled Gadd to the extent that it was inconsistent with the Mississippi

Constitution of 1890, art. IV, § 38 which vests competence of a legislative candidate's qualifications in each

house of the legislature. Foster, 536 So. 2d at 907.

2. There is little to indicate that there was a real campaign and Brinston's dilatory response to the residency

issue as chronicled by the majority may be taken as evidence of the seriousness of the endeavor.

3. Gadd v. Thompson, 517 So. 2d 576 (Miss. 1987), overruled in part by Foster v. Harden, 537 So.

2d 905 (Miss. 1988).