A lawyer friend of mine recently sent me an email commenting on the Recount Commission’s ruling on Charlie White’s residency.
“Contrary to what I repeatedly heard from the Commission members yesterday, mostly Wheeler, Indiana law does not state that residence is totally a function of one’s intent. While important, the Supreme Court in the Evan Bayh case said these things about the role of intent in domicile cases. First, it said that “a self-serving statement of intent is not sufficient to find that a new residence has been established.” (“I intended to live at Broad Leaf at the home of the woman I divorced 3 years earlier, while I was engaged to another woman, and after I’d leased and then purchased a condominium with a 30-year mortgage and paid all the utility bills while my fiancé was living there.”) Second, the Bayh case held that residency requires both intent and “evidence of acts taken in furtherance of the requisite intent, which makes the intent manifest and believable.” In other words, one’s professed intent, to be made believable, requires conduct that is consistent with that professed intent. And third, the Court in the Bayh case emphasized that a location cannot be one’s domicile unless it is one’s “true, fixed, permanent home,” not a place (like one’s ex-wife’s home) where one goes occasionally to “crash”, i.e. a purely temporary arrangement.”
The Commission essentially ruled that all White needed to do was profess an intent to reside at his ex-wife’s home. But as my friend pointed out, his ex-wife explicitly testified that the arrangement was “never intended to be permanent but only temporary.” Furthermore, White’s contemporaneous conduct and the circumstances surrounding his divorce and engagement to another woman was–in any world most of us inhabit or recognize–totally inconsistent with his testimony that he intended to take up permanent residence with his ex. He leased and then purchased the new condo and moved his fiancé into it at no charge to her; he represented to his lending institution, to his future employer, to his prior employer and to the IRS that this condo would be his permanent residence. If this were a made-for-TV movie, the obvious question would be: “Were you lying then or are you lying now, Mr. White?”
As my friend conceded, the process is and was intended to be political rather than judicial in nature, so that a political rather than a judicial outcome would result. And that is precisely what happened here. If White thinks he will have as easy a time of it when the criminal charges against him are heard, he’s likely to be very disappointed.
The great irony is that, by refusing Republican and Democratic demands that he resign, White is continuing to embarrass the same Republican party that provided him with last week’s Pyrrhic victory.