IN THE SUPREME COURT OF OHIO
State ex rel. Jon A. Husted,
Relator, Case No. 09-1707
V. Original Action in Mandamus Expedited Election Matter Jennifer L. Brunner, et al.,
Respondents.
RELATOR'S EVIDENCE
Maria J. Armstrong (0038973) Richard Cordray (0038034) Counsel ofRecord Ohio Attorney General Anne Marie Sferra (0030855) Richard C. Coglianese (0066830) Jennifer A. Flint (0059587) Assistant Attorney General BRICKER & ECKLER LLP Counsel ofRecord 100 South Third Street Damian Sikora (0075224) Columbus, Ohio 43215 Erick D. Gale (0075723) Telephone: (614) 227-2300 30 East Broad Street, 16th Floor Facsimile: (614) 227-2390 Columbus, Ohio 43215-2400 E-mail: [email protected] Telephone: (614) 466-2872 E-mail: [email protected] Facsimile: (614) 728-7592 E-mail: [email protected] E-mail: rcoalianeseaag.state.oh.us Counselfor Relator Counsel for Respondent, Jennifer L. Brunner, Ohio Secretary of State
Victor T. Whisman Assistant Montgomery County Prosecuting Attomey 301 West Third Street, 5th Floor Dayton, OH 45422 E-mail: whismanvt a,mcohio.org F 0^LS IL'/ Counsel for Respondent, Montgomery County Board of SEQ 28 2009 Elections CLERK OF COURT SUPREME COURT OF OHIO
3337849v1 INDEX TO RELATOR'S EVIDENCE
AFF 1: AFFIDAVIT OF MARIA ARMSTRONG Exhibit A: March 11, 2009 letter to Secretary from Montgomery County Board of Elections and attached: 1. Transcript of testimony from January 7, 2009 Board meeting. 2. Memorandum in Support of Dismissal submitted to Board on February 19, 2009. 3. Transcript of opinion from Board counsel during February 25, 2009 Board meeting. 4. Position papers of Board members.
Exhibit B: June 8, 2009 letter to Board from Brunner.
Exhibit C: July 14, 2009 letter to Secretary from Board and attached: 1. Partial transcript of June 29, 2009 Board meeting. 2. Copies of documents from Regine Elliott; Jim and Marybeth Rutledge; and Progress Ohio.org. 3. Documents presented at June 29, 2009 Board meeting by Board Member Gantt and Board Member Lieberman. 4. Position papers of Board members.
Exhibit D: Directive 2008-79.
Exhibit E: April 7, 2009 letter from Secretary to Board regarding tie vote.
Exhibit F: April 8, 20091etter from Secretary to Relator regarding tie vote.
Exhibit G: April 17, 20091etter from Relator to Board providing requested information.
Exhibit H: September 21, 2009 tie-breaking decision by Secretary. Exhibit 1: July 6, 20091etter to Secretary from Relator regarding tie vote.
AFF 2: AFFIDAVIT OF MEGHAN BRECKENRIDGE VALENTINE
Exhibit J: October 10, 2008 Assistant General Counsel Brian Shinn's e-mail regarding the Secretary's procedure for tie votes.
Exhibit K October 28, 2008 letter from Secretary to Morgan County Board of Elections regarding tie vote relating to Richard D. Welch is an elector of Morgan County.
3337849v1 Exhibit L: Transcript of Morgan County Board of Elections, September 2, 2008
AFF 3: AFFIDAVIT OF JON A. HUSTED.
aria). Armstr6ag.(0038973) el of Record Anne Marie Sferra (0030855) Jennifer A. Flint (0059587) BRICKER & ECKLER LLP 100 South Third Street Columbus, Ohio 43215 Telephone: (614) 227-2300 Facsimile: (614) 227-2390 E-mail: [email protected] E-mail: asferract)bricker.com E-mail: jflint,^abricker.com Counselfor Relator
3337849v1 CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Relator's Evidence was sent to the
following, via electronic mail, this 280' day of September, 2009 upon the following:
Richard N. Coglianese Victor T. Whisman Assistant Attorney General Asst. Montgomery Cty. Prosecuting Attorney Constitutional Offices Section 301 West Third Street, 5th Floor 30 E. Broad Street, 16`h Floor Dayton, OH 45422 Coluinbus, OH 43215 E-mail: whismanvtgmcohio.org E-mail: richard.co [email protected] Counsel for Respondent, Montgomery County Counselfor Respondent, Jennifer L. Brunner, Board of Elections Ohio Secretary ofState
3337849v1 IN THE SUPREME COURT OF OHIO
State ex rel. Jon A. Husted
Relator, . Case No. 09-1707
v. . Original Action in Mandamus Expedited Election Matter Jennifer L. Brunner, et al.
Respondents.
AFFIDAVIT OF MARIA J. ARMSTRONG
STATE OF OHIO ss: County of Franklin
Now comes Maria J. Armstrong being first duly cautioned and sworn, and states the
following:
1. I am an attomey with the law firm of Bricker & Eckler LLP, counsel for Jon A.
Husted, the Relator, in this action.
2. I have knowledge of the matters stated in this Affidavit and am competent to
testify on the matters set forth herein.
3. The following documents included as Exhibits for this matter are a true and
accurate representation of public records requested and received from the Montgomery
County Board of Elections:
Exhibit A: March 11, 20091etter to Secretary from Montgomery County Board of Elections, and the attached documents submitted to the Secretary:
1. Transcript of testimony from January 7, 2009 Board meeting.
2. Memorandum in Support of Dismissal submitted to Board on February 19, 2009.
3337918vt 3. Transcript of opinion from Board counsel during February 25, 2009 Board meeting.
4. Position papers of Board members.
Exhibit C: July 14, 20091etter to Secretary from Board, and the following documents:
1. Partial transcript of June 29, 2009 Board meeting.
2. Copies of documents from Regine Elliott; Jim and Marybeth Rutledge; and Progress Ohio.org.
3. Documents presented at June 29, 2009 Board meeting by Board Member Gantt and Board Member Liebennan.
4. Position papers of Board members.
4. The following documents included as Exhibits for this matter are a true and
accurate representation of public records and correspondence received from the Ohio Secretary
of State:
Exhibit B: June 8, 20091etter to Board from Brunner.
Exhibit D: Ohio Secretary of State Directive 2008-79.
Exhibit E: Apri17, 20091etter from Secretary to Board regarding tie vote.
Exhibit F: April 8, 20091etter from Secretary to Relator regarding tie vote.
Exhibit H: September 21, 2009 tie-breaking decision by Secretary.
5. The following documents included as Exhibits for this matter are true and
accurate copies of letters sent from the Relator to the Secretary.
Exhibit I: April 17, 20091etter from Jon Husted
Exhibit J: July 6, 20091etter from Jon Husted
2 3337918v1 FURTHER AFFIANT SAYETH NAUGHT.
Sworn to before me and subscribed in my presence this Z day of September, 2009.
Terd L Kovakhllc Notary Public Notary Pubk, State of Ohio My Commissiuo Expkes 124)9-2013
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Enctosure.4 January 7, 2009 Jon Husted Residency Hearine Transcriut
The Montgomery County Board of Elections met in session at 11:00 a.m. on Wednesday, January 7, 2009. The meeting was called to order by Chairman Gregory Gantt. Members in attendance were Thomas J. Ritchie, Dennis Lieberman, and James Nathanson.
The following is a testimony transcript of a public hearing that was held to investigate the residency of State Senator Jon Husted.
GG The main purpose of our meeting here is this issue that we've discussed a couple of times previously at our Board meeting and we have Speaker Husted, sorry Senator Husted present. What I thought we would do is if Jon could come up to the table and Vic if you could swear him since he is going to testify. VW Sure...for the purposes of the record so that we are clear about what we are doing here, this is an administrative investigatory hearing that is being conducted under authority of ORC 3501.11 (j) duties of the Board, duties with regard to investigating irregularities under the code. The Board received two requests to investigate. The first was received on October 27th from Progress Ohio. The second was received on October 28th from somebody named Regine Elliot requesting that the Board conduct an investigation into the voting residence of Senator Husted. So this is what it's all about. Senator Husted has been kind enough to appear here without subpoena, and we appreciate that. I think what we'll do is to allow you to go ahead and make an opening statement and then we'll open it up to questions by the Board. I think we'll just travel on up the table in order, if that's acceptable to everybody. Would you raise your right hand please? Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God? JH I Do. VW Would you state your name please? JH Jon Husted VW Thanks Jon. JH Thank you Mr. Chairman and members of the Board. I would like to make some opening conunents that I have prepared. I would first say thank you for the opportunity to provide these opening remarks. I believe it will be helpful in resolving the question that you've been asked to explore. As I understand from the letter you sent inviting me to appear today, that the question has to do solely with my residency and my ability to vote in Kettering. The matter of service in the Ohio Senate was resolved by the voters of the 6th District, certification of election by this Board, and the oath of office administered to me in the Ohio Senate by Chief Justice Evelyn Stratton. I have lived in the Dayton area for 24 years, including the last 14 at 148 Sherbrooke Drive in Kettering. It is the only home I own. It is the place that I pay my taxes, receive my mail, and where I have voted for 14 years. Not to mention that this Board has certified my candidacy at this address and my election at this address five times in the past 10 years. During those 14 years in Kettering, I have also worked at the Montgomery County Commissioners, the Dayton Area Chamber of Commerce and later ran for State Representative in 2000. I have
Page 1 of 16 served in the legislature since 2001. At the support and urging of the legislative delegation, community leaders, and my own personal desire to achieve greater influence in the affairs of the State of Ohio on behalf of the Dayton region, I pursued an appointment to the Finance Committee of the Ohio House of Representatives, which controls all matters related to the State of Ohio, and soon began a campaign to become a leader in the House majority. This was done with the recognition that it would take a substantial commitment of time and energy applied in Columbus and travel across the State of Ohio. However, I recognize that these were necessities of perfomiing the job and achieving these goals. Along the road of achieving my goals, I served as the Vice- Chairman of the Subcommittee of Primary and Secondary Education and later was the Chairman of that committee, a committee which held its meetings in the evening. I later ran for and was elected to the position of Speaker of the Ohio House of Representatives. This was the first time that someone from Montgomery County had been elected to this position in nearly two centuries. It was a responsibility that I have taken very seriously, just as I take my new role as Senator very seriously. Being Speaker is a seven day a week job and included oversight of over 200 employees, 20 committees, Chairing the Rules and Reference Committee, the Joint Legislative Ethics Committee, the Legislative Services Committee, and the review of every piece of legislation that's referred to that committee and brought to the House floor. These are just to name a few of my duties. After completing a late night Finance Committee meeting in my first term in the Ohio House, I was driving home to Kettering and fell asleep at the wheel and drove off the road. Fortunately, I did not crash, I was not injured, and I did not injure anyone else. I was lucky and I leamed an inexpensive lesson. At that point, I arranged to spend nights at the home of some family that I had in the Columbus area. This was less than an ideal solution in the short term, so I soon found an apartment for rent and another short term solution. Over time, I have rented, owned, or stayed with family in at least six different places while carrying out my duties. This has enabled me to do my job, but it is not my home. My experience is not dissimilar from many current and former legislators from both parties. In the past, Congressman Tony Hall and Senator Jeff Jacobson have exercised their judgment on this issue. Cun-ently, there are a notable number of legislators of both parties who have the same or similar circumstances as I do. In fact, some don't even own property in their own districts or rent there, yet own a home in Columbus and claim their voting residency in their districts. Having stated all of these reasons that I am compelled to spend time in Columbus, let me be clear...Columbus is not my home. I have never abandoned my residency in Kettering and when my public service is completed, I intended to return home full-time to Kettering. As a legislator and given these facts, I hope you will conclude as I know that under Article II, Section III of the Ohio Constitution and under Section 3503.02 of the Ohio Revised Code that I meet the standard and the requirements of residency. I appreciate your responsibilities and I appreciate the opportunity to express my conunitment to serving the people of the Dayton area and how I have done so according to my oath of office and in compliance with the Constitution and the laws of the State of Ohio. Thank you Mr. Chairman and the Board members.
Page 2 of 16 VW All right. We'll throw the meeting open to questions. Mr. Nathanson, do you have any questions? JN I have one and I reserve the right to...as I would think Board members would expect to ask questions. , I just want to be very clear, because I appreciate first of all Senator that you appeared here voluntarily. I appreciate your willingness to help us get this matter resolved. The one thing that I want to be very clear on, because there was a sentence in your testimony...It is your intention on completion of your term in public service to return to your home in Kettering? JH That is correct. JN Thank you. No further questions at this time. VW Mr. Lieberman. DL Before I begin my questions Senator, I just want to make this statement ... I have been accused of being partisan in this matter of asking that this investigation take place. I want to make sure that you're clear on what my position is. My position is as a Board member that I have an obligation under the law to look at the facts and to apply the law to those facts. If I did anything less than that, I would not be doing my duty. I think that's true for all of the Board members here. We had a complaint filed, we had two complaints. One by Progress Ohio, which arguably could be called partisan and frankly did not impress me. It was only when we received a complaint from one of your neighbors, that's a Republican, that we felt that we had to do something under the law. It is my intention not to be partisan in this matter. It is my intention to marshal the facts, to figure out what the law is, and to apply the law to those facts and wherever it falls it will fall. I want you to know that. I know there have been recent articles in the newspaper, you've done some very good things for our community. This is not a witch hunt. This is simply us doing our job as what we have to do. JH I respect that. DL I don't think you'd expect any less. As the job you've done and Speaker and now as Senator, I know that you want the law to be applied evenly to everybody. That's what we're going to do. Thank you very much. With that speech, thank you very much for coniing here and answering some questions. What prompted I think the initial inquiry is that under Section 3503.02 (d), it states that the place where the family of a married person resides shall be considered to be the person's place of residence, with some exceptions, separation, divorce, that kind of thing. In a newspaper article it was indicated that your family resides in Columbus. Is that accurate? JH Does my family reside in Columbus? I would say that for the most part that's accurate. DL OK. Is there a part that's not accurate about that statement? JH Well, let me explore the issue since we're going to have a discussion on what the law is, which is something that you said. The law on the matter related to Section (d) and as I further discovered in e-mails that I have seen pass across the way from political operatives in Columbus that were sent to the Brunner campaign and other members of the Brunner organization and Democratic chairmen that there is the Spangler case as it relates to Section (d). And I would just say that when you look at the law as it relates to this, because that's what I did. As a lawmaker, this is what I do. We look at the laws and any actions that I take I review them thoroughly to make sure that I am in compliance
Page 3 of 16 with those laws. If you look at the remainder of the Code, you'll see that under Section (a)(b)(c) and (g) and (g) is most notable. Let me please read this...If a person removes from this state to engage in the services of the United States government, the person shall not be considered to have lost the person's residence in this state during the period of such service, and likewise, should a person enter employment of the state the place where such person resided at the time of the person's removal shall be considered to be the person's place of residence. This is also consistent with a similar prevision as it specifically relates to legislators under Article II, Section III of the Ohio Constitution. And to the extent that...fust of all there needs to be recognition as a legislator and as an employee of the State of Ohio that the Code and the Constitution recognizes the distinctions for what residency is applied to. In the particular case of the Spangler case as it relates to Section (d) that is considered no longer good law and not the prevailing thought of the courts. It was a 1984 case. There have been numerous cases over the years, Klink vs. Irik that talk about the intent and provide leeway for someone to establish residency in this state. There was also a case here, Lakes vs. Young in the Montgomery County Board of Elections that ruled a candidate's temporary removal of his family to another district does not undermine his residency status, no by the temporary removal of his family elsewhere either in fact nor by intention abandoned his residency. There are other sinvlar relevant cases, Stine vs. Brown County, Duncan vs. Portage County, and opinion by the Ohio Attorney General in 2002 that relates to this particular matter. In the case of Spangler, that does not deal with the legislature. It does not deal with the specific instances covered in the rest of the law and in the Constitution. Frankly, the Constitution and Section (g) in my particular case are relevant. To the extent that I left Montgomery County at all, it was due to my employment with the State of Ohio. Under Section (g) it says that Montgomery County basically shall be considered my place of residence because for me, as a qualified elector in the State of Ohio, to do otherwise ... Let me also point out that Bell vs. Morinco case in 2004 that basically concluded that family residency standing alone does not presumptively conclude a voter's residency. If fact, I could not qualify as an elector in any other county in the state under Sections (a)(b)(c) and (g) of the law because I am a resident of Montgomery County and to the extent that I am not here, it's where I intend to return upon my completion as an office holder. Therefore, I would be completely disenfranchised were you to disqualify me as a resident of Montgomery County. DL All right Senator, let me try this again. I appreciate the law and our job is to figure out what that law is. I've done some research. We have a lawyer who is going to give us some guidance. I don't think it would be misplaced for you to give us a brief of your own as to what you believe the law to be. I welcome that. We'll take a look at that. Today though, I think really what I'd like to do is to try to determine what the facts are so that we can then determine ... apply the law, as what you've stated and what we may find it to be to those facts. (d) is only one Subsection of 3503.02. There are others. How they all apply is how you look at the law and then come up with your final determination. But we have to have the facts to be able to look at that. So, if we could...I'm not going to tell you that you cannot go ahead and talk about the law if you want to, that's fine. It would probably be better to put it in a brief for us if that's what you want to do.
Page 4 of 16 JH Well, if I could just respond. It is entirely important to understand those facts. Section (g), the Constitution, and a recognition that Section (g) does not apply as the courts have held to all of the other factors that are considered when you are in the employ of the State of Ohio or a legislator. DL You mean Section (d), not (g)? (d) is the one... JH Correct, yes correct. That is particularly important because for the purposes of this discussion, I am not disputing that I spend a considerable amount of time in Columbus. DL Right. JH That is not a question of dispute. I split time between both places, I acknowledge that. The point of the matter is that I am here to explain that as a law maker, as a person who is overseeing the House of Representatives for the past four years, it is important to know that I have done my homework in preparation for how I've conducted my life and fulfilled my responsibilities. So, I think it's important since we're reading this into the record that those things be made available. DL I'm not going to stop you from doing that, but I also have a job to get to what the facts are. Unless there's anything more you want to say about the law... JH I'm sure there will be. DL We'll take that all into consideration, Ok? JH I understand. DL When I asked you if you're family lived in Columbus, you said for the most part. What I'm trying to get at is if there's a part that they don't, then what is that part? Where would they live if they don't live in Columbus? JH Kettering DL Ok. How often are they in Kettering? JH I don't keep records of how often we're there or not. It all depends on the activities that are going on, what my commitments are in Columbus, and if it makes sense to be there or not to be there. DL Do you know...I'm talking about your family now, not you personally, we'll get into that in a little bit, do you know when the last time was that your fanuly was in Kettering? JH Last weekend. DL Ok. Did they stay the night or the day? JH Last weekend...I don't think we stayed last weekend. DL Ok. How many children do you have? JH I have two. DL Do they have rooms at the Kettering residence? JH Yes. DL Do they go to school in Kettering? JH I have a daughter who is two years old, so she does not attend school. My son is 13 and his mother lives in Upper Arlington. He has attended school there since he was in kindergarten. DL Ok. I think it would be helpful for you to make the record clear as to chronologically ... you've had your house in Kettering for 14 years? JH 14 years.
Page5of16 DL You weren't married to the person to whom you are married now at the time that you bought the residence? JH That's correct. DL When did you get married to the person you are married to now? JH Approximately three years ago. DL Where did she live at the time? JH She lived in Columbus. DL So, she had never lived in Kettering and you moved her there, it's just that she already lived in Columbus when you married her? JH And we've maintained ... she's maintained a house there. She's in the real estate business. We've also remodeled the house in Kettering, a project that she was responsible for and lead. We did all that just two years ago. DL Ok. You're son goes to school in Upper Arlington. There seems to be some confusion as to how many houses you own. JH I don't own any. DL Does your wife own... JH Yes. DL Ok. How many houses does she own? JH One. DL Ok. Was there a time when she owned more that one? JH I believe there has been. I believe so, yes. DL I'm just going from my recollection ... stories in the newspaper. JH Yes, I believe so. DL Ok. Did you have any ownership other than dower rights in any of those homes? JH I believe in one of them I did. DL Which one would that have been? JH I believe it was the Branson condominium. DL Ok. JH A couple of blocks from the Statehouse. DL Ok. When did you own that? Do you know? JH Three years ago...I don't know precisely. That's approximate. DL Ok. JH I think it was for less than a year. DL All right. Initially, when you were a state legislator, I think in you're opening statement that you used to conunute back and forth until you almost had a bad accident. When you became speaker, did you get an automobile and a driver? JH The House has several automobiles. They're not assigned to anyone in particular. I didn't have a driver. We do have a security ... we did have a sergeant of arms who is security personnel, who on certain occasions would serve in that capacity. DL OK. Would he drive you back and forth...this is difficult without putting it in a timeline...let's say within in the past year, Ok? Would he drive you back and forth to your Kettering residence? JH Has he ever done that, yes. Was it a frequent occurrence, no. DL Ok. In the past year, how often would you come back to the Kettering residence?
Page 6 of 16 JH Not daily, but at least weekly. DL Would you spend the night at the Kettering residence? JH On some occasions, yes. On some occasions, no. DL Ok. Basically, pick up your mail? JH It really depended on the day and the circumstances and what the schedule demanded of me. DL Did you get the Dayton Daily News? JH I don't have a subscription to the Dayton Daily News. The Dayton Daily News for the record comes to my office in Columbus. I'm a regular reader plus the online version, which I really like, so I get updated information. DL Good Answer. They were very nice to you last week. JH I don't ride the roller coaster. DL Back to this residency issue. You do get mail at the Kettering residence? JH Yes. DL Bills are sent there? JH Yes. DL How about DP&L. Do you pay DP&L at that residence? JH Yes. DL Can you tell me what you're average DP&L bill would be for the past year at the Kettering residence? JH I can't. I don't know off hand. DL Would you estimate that it was less than $100? Was it more than $100? Was it more than $200? JH I don't know. I really don't. DL Do you know what the square footage of your residence is? JH It's property value went down because Karl sent me something the other day and that's not so good. I don't know. It's not a big place. I don't really even know. I'm not the real estate person in my family, so. Let me just describe it. It's three bedroom. It's got a dining room, a living room, one and a half baths, a laundry room, garage. DL Is it a ranch? JH Ranch. DL Ok. Do you know...when you purchased the Kettering residence, is that in your name? JH Yes, it is. DL I received...you haven't seen this so I'm going to make a copy for everybody here, a letter, I'm not going to call it an affidavit because I don't see that it's been signed under oath from the Rutledge's at 4101 Breckenridge Road in Kettering. Do you know who they are? JH No. DL They report to be neighbors of yours. They have indicated that your deed is in a trust. Do you know anything about that? JH The only thing of it is...again, when I got married we did a will to avoid...as you get advised to make sure that there are no problems with the probate of the distribution if something were to happen to your property, then you put it in a trust that then you can
Page 7 of 16 give to your children in the family, and likewise my wife did the same thing with her assets. I believe that's what they would be talking about. DL Now, did you release your dower right in that trust? JH I don't know. I don't know the details as it relates to that. DL Ok. That would have been three years ago that you would have put that residence into a trust? JH Two years ago. It didn't happen immediately. JN I'm not try to be a lawyer...he's going by recollection. DL Right. JN That's a statement we don't know about, so you made an absolute statement ... when you put it in trust. DL That's what I'm asking. JH What ever that means...I'm just giving you the motivation for why those things happen. It's a fairly... DL Your objection is clearly noted, JN Just go on, just go on. DL To the best of your knowledge, it's in a trust? JH If we didn't have such a high estate tax in this state we wouldn't have those kinds of problems. DL You've got to take care that. JH I guess we need to take care of that...something to work on. TR We'd appreciate that. JH I have. I got criticized the last time I did it, so. DL Do you know where that trust would have been recorded? JH I don't know any answers to those questions, other than..,the law firm that handled it for me is Chemesky, Heyman & Kress. DL Ok. That could be helpful. JH Which is a local law finn. DL You have no problem if asked...giving us a copy of that trust, would you? JH I don't know what the...I'd have to check. I don't know what it is exactly what it is, or what the purpose is. I don't like to give my personal financial records out to people... DL Sure JH Because I don't think anybody would expect to have to do to vote. DL Just trying to marshal all the facts so we can make a good and honest determination as to what's happening. That may be one of the facts that we may need to look at. JH Sure. DL If we deem that it is, would you have a problem in releasing that to us? JH I would certainly entertain that request and do my best to fulfill it. DL Ok. Is my recollection correct, that you said you get there about once a week to your Kettering residence? JH No. What I said is that I'm not there daily, but I'm there weekly. DL Ok. Can you average it for me? Is it more than once a week? JH It really just depends on what the schedule is and what demands of my time are. That's as best as I can do for you.
Page 8 of 16 DL Ok. It's my understanding, and correct me if I'm wrong, ok...because I don't know all of this and that's why I'm asking all these questions...it is my understanding that the house when you're a legislator, that you can apply for basically travel expenses to and from your house and that it's a bulk amount, which is provided to you. Is that an accurate statement? JH To the best of my ability to explain it...legislators are reimbursed for travel for one round trip per week... DL Ok. JH And that's it. If you drove five times you would get reimbursed once. DL You did apply for that? JH Every legislator who lives within a certain district automatically qualifies for it under the law. DL And you took yours? JH Yes. DL You were reimbursed for the travel back and forth? JH No. I was reimbursed for some travel, certainly not all the travel. DL You don't have to detail the travel? You don't have to say I went back to my house? JH You don't have to say...there's no...I went one time this week, five times the next week. DL Right. Where does your wife work, or does she? JH She is an independent business owner. DL Ok. Does she have an office? JH I believe she does. I believe she has an office at Keller Williams, which is a real estate company. I think she's now the lead broker there. I think officially that's what she does. She also on occasion does home care visits as a physical therapist. DL Does she work... JH She works with sore backs. - SH That may not be advisable. JH She'll back a special visit for you. DL Will she make a special trip for me? Which leads me to my next question...does she do all of her work in Columbus? Is that where she basically works? JH Mostly. I think there's some work she does outside of the area, but mostly in Columbus. DL Ok. Do you get any other newspapers delivered to you at the Kettering residence? JH Do I get newspapers? I get all kinds of magazines...all kinds of things. DL Ok. Understand here Senator, I'm trying to give you an opportwuty here... JH Sure. DL To establish that you're there. JH Tax and Climate newspaper that I read last night. I got Tax Reform newsletter and newspaper that I get there. Heatland Institute information ... these are just things that were in the mail yesterday. DL Ok. Did you bring any documents with you today, which might help us with this understanding of where your residence may or may not be? We didn't ask you to. JH I didn't. Let me just...my taxes are there, my retirement is there. All of my sort of ...I'm not going to say that everything is sent there, but for the vast majority of all of the things
Page 9 of 16 that I do. Sometimes I have things sent to the office because of the nature of what it is and its more business related than personal related. DL Sure. JH That's the residence that my official business is conducted through. DL Ok. When you say your taxes are sent there, what do you mean by that? JH My property taxes, my income taxes. DL You pay your property taxes. JH Yes. DL You pay your property taxes in Montgomery County. JH My property taxes are obviously Montgomery County based. DL Right. JH And my income taxes. DL When you say are they sent there...are you saying that your accountant would send your taxes to your Kettering address? Is that what you're talking about? JH When you get...my accountant is a local accountant and that's where... DL Ok. You pay Kettering municipal taxes? JH Yes. As a legislator, yes. DL Ok. How about Columbus ... do you pay any taxes in Columbus? JH Not that I'm aware of. DL Ok. Other than the situation where you and your wife both have... JH I guess I've paid a few property taxes there for property that I've owned there, but everything is moved through my local Kettering Sherbrooke address. DL Ok. Would you have available like a private or public calendars ... Blackberrys, which could establish that you come back to Kettering for the weekend? JH I don't keep records my...of what I use for my personal time on any calendar. Look ... frankly as a very public figure I don't keep my private affairs on any public calendar. DL How about a private calendar? JH No. DL On your family calendar you have a trip to Kettering? JH No. Because it happens so frequently that it's not like something that you schedule. The weekend before I was in Kettering. I went hunting. I Shot a deer...helped out the farmers and the motorists from Montgomery County. I don't put that kind of stuff on my schedule. DL There might be some that disagree with that. JN We won't get into that. DL So, you went hunting in Kettering last weekend? JH Not in Kettering, but Montgomery County. DL I was going to say, that would have been a problem. JH That would be a hard place to find...I guess there are a few places down by Moraine and NCR. Not a lot of good hunting places in Kettering. JN Don't mention Moraine to this Board. DL And you come back for UD games and things like last night? JH Yes.
Page 10 of 16 DL Your PERS statements ... where are those sent? JH I believe they're sent to Sherbrooke...I'm pretty sure of that. They may be sent to the office, but I believe its Kettering, Sherbrooke Drive. DL Kettering. JH Yes. DL How about pay stubs? Do you have direct deposit for when you get paid? JH I think its direct deposit. I know its direct deposit. DL What bank would it be deposited in? JH I don't know. My account is here with Day Air Credit Union in Dayton. It's where I've banked since I went and enrolled at UD in 1985. DL Ok. JH I don't...I think...my paycheck may go to my wife's account, though. DL That is important. JH That is important. TR Sounds right to me. GG Me too. SH Everybody's don't? TR What do you got Dennis? DL Would that be a Columbus bank? JH I don't know exactly where that's deposited ... precisely in the bank. I have my account at Day Air Credit Union, like I said. That's where I bank from.... which I have since 1985 on Wilmington Pike. DL Do you have any banks in Columbus. JH I don't, no. DL Your automobiles ... do you know where they might be registered, Montgomery County? JH Yes, Montgomery County. Purchased at Voss. I purchased a Chevy Trailblazer, which up until December 23'a was made in my district. Unfortunately, that's not the case anymore. DL Credit card bills? JH Various places. I think my credit card goes to the office because I do a lot of expenses on that. DL Do you have a telephone at the Kettering address? JH I do. DL Do you have a fixed phone...LAN phone as they call it now? JH Yes. DL Ok. Do you pay any taxes in Columbus? JH Not that I'm aware of.any more. DL I think I may have asked that. JH I think you did. DL I assume...groceries that you purchase...do you purchase groceries for the Kettering residence? JH Yes. I purchase them for both...when I'm in Columbus and when I'm in Kettering. Dorothy Lane Market, Trader Joes, Krogers are the kind of the places that I go when I'm in Kettering. I see you're nodding...you must hit the same spots?
Page 11 of 16 DL That wasn't me nodding. I go to a lower class of grocery store. JH What's that? GG I saw your wife at Trader Joes two weeks ago. DL She goes there, I don't. I'm a Kroger person. JN For the record it should be noted that Member Lieberman shops at a different location than his wife. DL All in Montgomery County. JN I believe its where she... JH Because they need the sales tax. DL That's right. If we could take a break forjust for a minute. I want to make a copy to give this to everybody. I just need to stand up for a minute. GG Stand if recess for a minute.
RECESS
GG Ok, we're all back. When we recessed we left off with Member Lieberman. DL I only have a couple more questions for you Senator, at this stage. I'm sure that in your position as Speaker that you had many occasions in which you would travel...not just to Kettering ... places in the state ... probably outside of the state and you would received reimbursement for that travel, where would that be sent? JH There are a couple of occasions that I recall that I may have been reimbursed for travel. If I was, I think that it would have come to my office. DL On the application that you would make for that reimbursement, would you put your office, your Columbus home, or your Kettering home? JH It would depend on where I was leaving from. That would be the determination factor on what you would be compensated for the travel to and from. DL Do you recall any occasion which it was the Kettering home? JH Gosh, I think so. I would think that would be the case, but I don't know precisely. DL I'm talking now...let's put things into perspective ... I'm talking within the past three years? Do you recall anytime in which you would have had reimbursements sent to the Kettering home? JH I don't know...again, I don't know. I did not travel on state business where I was reimbursed on other than a handful...It wasn't a common thing. DL Right. JH Most of the time that I would travel would be something that I would pay for, or if it was campaign related ... that I would pay for out of the campaign. It would be so infrequent ... and that would be something that a staff person would handle for me. I don't fill out the forms and do that kind of thing, so I just don't know. DL Ok. You don't have a recollection? JH I don't. DL I may have asked you this question ... forgive me if I did, sometimes I do this. Do you have any banks in Columbus that you bank at? JH Not that I'm aware of. There might be a joint account that has my name on it, but I do not bank there.
Page 12 of 16 DL Ok. A joint account with your wife? JH Yes. I don't personally...I don't use an ATM card. I haven't used an ATM card since the early 90's after I got charged an ATM fee and I refuse to pay it anymore. The only checking account that I write checks out of is out of the account at Day Air Credit Union. There may be an account that has my name on it, but I don't use it. DL Ok. Senator... JH You know what, there's also a campaign...I was also in charge of the Ohio Republican Campaign Committee and I was the person in charge of that. That's not personal, that's campaign. DL I'm talking about personal. JH Yes. DL The only personal account that you think that you might have in Columbus would be a joint account with your wife? JH That's all I would know, and I don't use it. I don't write checks out of it. I don't do things like that. DL You don't write checks out of it, but from what I understood you to say...your check is direct deposited into you wife's account? Would it be that account, that joint account? JH I believe so. DL Ok. I want to factually ask you one question and then of course legally I want to ask you one other question, which I know you wanted to get into some of this law stuff, so I'll give you an opportunity. JH I don't necessarily want to. DL Senator, I've handed you a letter from the Rutledge's, who report to be neighbors of yours. I don't know whether they are or not, but they report to be. Have you had a chance to read that? JH Other than what I'm looking at right now, no. - DL Their address is 4101 Breckenridge Road. Is that within your neighborhood, do you know? JH Yes, Breckenridge is in the neighborhood. DL They make some allegations in here that basically you're never there. They go by and the mail is piled up...the newspapers are piled up. JN Dennis, may I just interrupt for a minute. DL I'd rather you not. JN I know. I'm a little uncomfortable about having anyone respond...ask questions you want, I'm not trying to stop the questions, but I feel very uncomfortable in anyone having to respond to a series of statements, allegations by these people. We don't know who they are. You've asked a series of questions based on it. DL Let me give you the reason why. GG Let me jump in there. This is an e-mail from Mary Beth Rutledge to Mary Beth Rutledge. We know she's a lawyer here in town. I think she's active in the Democratic Party. DL I don't know that. GG No where in here does it mention newspapers... I just read it. I'll read it again. I'm very suspicious of this e-mail coming in at the 11`h hour addressed from herself to herself.
Page 13 of 16 There's no where here Dennis where I see any reference to newspapers piling up. It appears to me that Ms. Rutledge has conducted her own. DL Look at paragraph 5. GG Paragraph 5. DL Yes. GG Walks around the dog. Ok, I missed that part. Sony. DL Before you interrupt me...you both will have your opportunities, all right? I'm not saying this is true or false. I believe in the Democratic process of due process. Which means, that I believe when you're accused of something, you should be able to face your accusers and give a response. I'm just giving the Senator an opportunity to respond to what to what she's saying. JH Ask your question. I'll respond to your question. DL Ok. JH I'm not going to respond to this. I'll respond to your question. DL Basically, she's saying and the other neighbor who filed the complaint is that you're not there...your children don't go to school there...you don't buy groceries, etc. Their concern is that you're not there. How do you respond to that. JH Well, first of all...it's been my home for 14 years and to the extent that I am not there, I'm conducting business on their behalf. Whether they like the job that I do or don't. I know that there are people that don't. 62% of them like the job that I did and they voted for me in the last election and 38% didn't. I'm sure that among those 38%, there are people that are unhappy with me and would love try to fmd anything they could to make my life difficult. That's Democracy ... that's the American process. I understand and respect that. But, I am there in Columbus fighting for these people. I'm fighting for Mary Beth and Jim Rutledge everyday to make sure that this region is as strong as it can be. They only have one person to do that. T'here's only one Senator, there's only one Representative from that district and for the past four years there has been only one Speaker of the House. Doing the job correctly is hard and it puts a lot of strain going back and forth and trying to manage all of the challenges that exist in trying to do that. Whether they like the way I'm doing it or not. I'll just respond to one thing...we had a power outage. If I call DP&L and I ask them for help, what am I supposed to do...ask them to come and fix my neighborhood first because it's me? No. I told them that look, these folks have power outages. I want you to be aware of them. Please give them information so that they know and they can plan. It was one of those situations that a lot of people were suffering. I can't just tell a utility company to fix my neighborhood just because I happen to be in a position of authority. I asked them to do what they would do for anybody else and to improve the way that they're doing things. DL Ok. Forgive me...I don't mean...John, I'm not trying to be rough on you at all. I'm trying to get the facts. I'm still not clear as to whether you are in Kettering, what you would consider to be frequently or infrequently. Let's keep this within the past three years, or two years since the situation changed when you got married and your family now lives in Columbus. Are you there frequently or infrequently, as you define it? JH I understand that this is the third time that we've explored this question...I'11 give you the best answer that I can. I am there weekly, but not daily and I do my best to split the time
Page 14 of 16 between my responsibilities in Columbus and my obligations to the district. I feel that I've done that with...to the best of my abilities. DL Ok. I guess that makes it clearer for me. You are there weekly. JH Yes. DL Ok. Now, the legal question that I just wanted to ask you about. This is more a curiosity than anything else. Under 3503.02, which we looked at earlier and you gave me... JH Yes, we went into our little legal brief. DL Right. Under 3503.02...I've looked at (d)...I've looked at all of this. As a legislator, do you know why they basically exempted the United States government elected office holder but not state office holders under this provision? JH I don't see that state elected office holders are treated any differently than federal elected office holders. DL Under (g), it only refers to persons removed from the state to engage in the services of the United States government. JH But if you read on...and likewise should the person enter employment of the state, the place where such person resided at the time of the person's removal shall be considered the person's place of residence. DL But that's a person that was in the United States govemment, then goes to the state. That's not how you read that? JH Again, should the person enter employment of the state. I've entered employment of the state, so do lots of people. I'll repeat...under (a)(b) and(c), because I intend to return full-time to Kettering. Under (g), it would be in my reading...I wouldn't be able to register to vote in any other place but where I have and intend to return to. DL I think that this is important as far as what's in your mind, whether it actually...I know you're not a lawyer, so how you read the law and what commas mean and everything else, is something that you might not be trained in. I think it's important to know that in your mind what you're telling us is that you think (d) or (g), paragraph (g) would exempt you from the rest of the provision as far as residency. JH I'm saying that among the many provisions in the law...look, I'm a law maker. I can change a law anytime I want. DL That's why I'm curious why it wasn't changed. JH I don't believe it's necessary...I'm not in the business of changing laws specifically for me and it's been very clear that under Article H, Section III of the Constitution and (g) frankly, that disregarding all the facts that we've discussed here that this is...to the extend that I am not here it's only because I am in service to the state doing my constitutional obligations as an elected official of employ of the State of Ohio. DL Ok. I was just curious why that hadn't been changed to clearly include elected state office holders. JH I guess we've been operating since...throughout time as it is pretty clear, but every once in a while I guess people want the opportunity to clear it up and I welcome the opportunity to do that. DL Ok. I think you'll be glad to know I don't have any other questions at this time. JH Thank you. VW Mr. Ritchie.
Page 15 of 16 TR I just want to say to the Senator and my fellow Board members ... certainly any questions that are asked here today are not intended by me to be partisan in any manner. The statements that were given to us ... evidently the chairman and other members of the Board have privileges that I don't have knowing that this lady is a legal representative. I believe a person should have a right to have folks appear before this Board if there's any questions about the validity of the statement and if there's any clear circumstances here. I guess we could give opportunity for these folks who have complained to come forward in some form of a public hearing and give testimony to the Board. For a long period of time I've made my living representing folks and giving them the right to face their accusers and to fmd the facts. That is the only thing that I'm concerned with here is the facts of whether you are or not. I think those concerns should be answered before the voters in this county and for clearness of at least myself as a Board member here. I think that as time goes on...if there's any doubt about any of the statements or the complaint that's filed, the people who made those complaints should be given the opportunity to come forward and give their testimony before the Board members. GG My comment is on this...this is not a complaint to our Board. We have two complaints before us and that's why we called this hearing. This is an e-mail sent from someone to themselves that was provided to Mr. Lieberman. I think both Tom, you, and Dennis have tried very hard to keep politics out of this. I appreciate that. I think I'm suspect of something that arrives the day of the hearing that is political. DL It's my fault that it arrived the day of the hearing. I received it when I was in the hospital and didn't find it until yesterday. GG It's dated December 17th. DL Today's January 6a'. GG I understand. Not sent to you, not sent to us...I don't give this any merit whatsoever. I believe the Senator has answered al] of Dennis' questions. Many of the questions that I would have had, you have already asked Dennis. I'm satisfied with his testimony. I'm also satisfied...I'm wearing my Board hat today, but I'm also a lawyer. I don't sit here as a lawyer, but I've litigated residency issues before. I don't know if you have too before Dennis, but I'm very familiar with these statutes and the Constitution. I believe probably what I see is a public perception, where there are distinctions made for federal, state, and different people that the average person wouldn't understand. I know on a personal level, my son and Jon's son have chased each other around his back yard before. I have no questions. Thank you for your list of questions Dennis. I'm satisfied. VW Ok. Anything else you want to add Jon before we move on? JH No. I appreciate the opportunity to clarify these issues and address them. Everybody have a wonderful day. VW Thank you very much. JN Again, I want to thank the Senator for appearing. Thank you Senator. JH You're quite welcome. DL I'm going to move that we recess briefly here, again...then come back.
Prepared by: R. Lehman
Page 16 of 16 BEFORE 7'HE PViONTGQMERI' COUNTY BOAIH} OF Ets ^' `^i"5 D
In Re. R e s i d e n c y ^ 9 1 9 ^ ^ 9A39 I i 32 . of Ion; Husted : - . - . t,..
MEMURANDUM 31V S[Tp1'ORT OF 1}1S14flSSAL OF ItESfPENC'i' R-EAI2ING
On January 7, 2009, 'The Montgomery County Board of Elections e"i3oard") reviewed
questions surrounding the residency of State Senator Jon IIusted for the purpose of deternizuing
the vthJidity of his voter registration. Senator Husted testified and provided infarmationn that he
resides at 148 Sherbnooke Drive, Ketterizw, Ohio 45429, and has consistently maintained his
residency in Montgoinery County for at least foviteen years. The Board continued its review of
this issue until pebnimy 25, 2009 to consider the legal issues involved in this case.
The testimony and #he public record aliratly before this 1Board establish that Senator
Husted entered the service of the state in 2000, at which time he was clearly and unquestionably
a resident of Montgomery County. The Senator still resides, and intends to continue residing, in
Montgomery County. Thus, he meetst the residency provisions of R.C. 3503.02. The Senator
appreciates this opportonit.y to provide this Board with the following outtiae on statutory and
case law, which establish that his residence is Montgomery County.
I. tlhiu Lasv Provides.that Senetor Husted's Residency is lY7oruteomery C'ountY.
Senator 14usted testified that Ketteting, Ohio has been his home for fourteen years and is
the place where he lived before his first caznpaign for the Ohio House of Representatives in
2000. Montgomery County is where he worked, paid taxes, voted, and corttinsuatly owned a
home. In 2000, Senator Husted was eleeted tU the House of Representatives and entered the
employment of the staie. Since 2000, he has spent significant time in Cohunbus as part of his
off'icial responsibilities to the state.
Staying in Czilumbus was a means by which Senator Flusted executed his oP.ficiai public
243042SV'L responsibiiities, but Coiumbus is not his home. His home is and has been Kettering, Ohio. It is
important to note that nothing has been presented to refute these facts,
Senator Husted testified before the Board tha:i, to the extent he left Montgomery County
temporurily, he did so as an elected metnber of the Ohio House of Representatives and has
testified to the Board that he continually maintained his intention to return to Montgomery
County followiia.gg his service to the state. No evidence has been presented to refute his assertion
as to intenL It is the Senator's intention that takes precedence over any other factor.
A. AMlication of R C 3502 D2 Establishes Senator Eiusted's Residenev in Mont^rv C-ountv.
Case law and R.C. 3503.02 make clear that Senator Husted resides in Montgomery
County. R.C. 3503.02(A), (B), and (C) provide that the intent of the person is the paramount
consideratian, Those seations provide:
(A) That place shaIl be co:isidered the residenee of a person in whieh the person's habitation is fixed and to which, whenever the person is absestt, the person has the intention of rettitizting,
(33) A person shall not be considered to have lost the p.erson's residence who leaves the persora.'s home and goes into another state or connty of this state, for temporary purposes only, with the intention of retuxning.
A person shaII not be considered to have gained a residence in any county of tlv.s state into which the person comes for temporary purposes only, without the intention of anaking such county the pernfanent place of 8bode.
Each of these subsections focuses on the voter's intent. The instant inquiry regarding
Senator Husted's residency arose primarily because his spouse and children reside in Franklin
County. R.C. 3503.02(D) suggests that an individual's residency is determitied by revievving the
location of that person's spouse and childtert:
The place wlteere the family of a married person resides shall be considered to be the persan's place of residence; except that when the spouses have septzrated and Yive apart, the place where such a spouse resides the length of time required to entitle a person to vote shall be considered to be the spouse's place of residence.
2 Moaza,n Application of R.C. 3503.02(A), (B), (C), and (G) all dictate that Senator Husted's
residency is in Montgomery County. Only R.C. 3503.02(D) when applied in a vacuum,
suggest a contrary result. Thus, applying R.C. 3503.02 to this issue, as tllis Board must do, can
lead to conflicting outcomes, A singul.ar focus in Section (D) creates a clear cnntlict witb every
other relevant provision of R. C. 3503.02 in this instance. The Courts instruct this Boaxd how
such conflicts must be resolved: the voter's intent is of paratnount importance. Moreover, a
shWilar focus on subsection (D) is prohibited as unconstitutional under a recent federal court
opinion. Subsection (D) simply carmot be applied in a vacuum in these analyses.
B. Conflietine Results frotn Apslication_of R,C. 3503.02 Must Be Resolved in Favor of Senator Husted.
Ohio courts have long recognized tbat the various provisions of R.C. 3503.02 can create
contradictory outcomes in different factual situations. In such cases, courts look to the e__.. ot's
intent as the parmount issue to resolve residency questions. A series of cases highfights the
intent of the voter as dispositive in de#effiining residency issues.
More than 50 years ago, ttthe Ohio Supreme Court recognized that the intent of the elector
is the most important factor in sorting through conflic#ing applications of the residency rules.
Reviewing the precursor to our present R.C. 3503.02, Justice Taft (concurring) wrote that "if a
literai intespretation is given to the language used by the General Assembly, an individual tnrnrs.y
sometimes come within the definiti.oxf of more than one of the situations" described in the law.
.State ez rel Klirrk v. Eyrich (1452),157 Ohio Sf. 338, at 343.
Justice Taft went on to analyze the midency rules and found that the rules wem intended
to gt?tut the elector leeway to determine residency for himseif:
Apparently, the General Assembly, in providing for voting at the residence and setting forth rules for determination of such residence, recognized that there would be instances in which it would be difficult for an individual to determine where his clamieile was or -A&at his only voting residence was, if no leeway was given him to determine that for himself witbin certain limitations. The rnles which the Creneral
2931i428YE Assembly specified were apparently intended to enable an individual in such a situation to select as his residence some place which fairly confornted with one or more of the several rules sAecified, even though it mieht not conform with &me of the other t'ules so specified or might not be his domicile. Icl. at 344, emphasis added.
The ,Eyrich case examined a set of facts very similar to those before this Board in Senator
Husted's case. In Eyrich, a protest was filed challengin,g the candidacy of a person running for
a#fiCe in E:Camilt,on County. The candidate's spouse resided in Franklin County, but the candidate
did "still have a place of habitation at his Cincinnati address and reeeives some mail there."
Evidence in the case established that the candidate had "at one time fixed his habitation in
Cincinnati," had "intention eventually to return from Franklin county to Cincinnati", and "has
not gone to Fianklin county for permanent parposes." The Court upheld the Board's
detetminaLion allowing the candidate tx7 run for election in Haniilton County, even though "any
intention he may have to retunt to Cyn.einnaii is a remote, as distinguished from the immediate
ich he has of retnrning to Frranklin County."
If anythiitg, Senator I-lusted's connections and ties to Montgomery County are even
satvnger tttan, those presented in Byrich. Yet even under this more tenuous set of facts, the t7hio
Supreme Court upheld residency in .isyrich based upon the candidate's expression of intent.
Since Eyrich, a steady line of cases has focused on the intent afthe candidate. In State ear
reL Iluman v. Portage Coeuity BtL of Elections (2007), 115 Ohio St. 3d 405, the Ohio Supreme
Court reviewed R.C. 3503.02 and stated: "That statute gr^qRhasim the person's intent to 3nal:e a
place a fbced or permanent place of abode." ldL at 406, emphasis added ?"he Court w-ent on
to quote from R.C. 3503.02 (A), (B), and (C), all of which focus o», intent. In fact,
RC. 3503.02(F), (F), and (1) also foons on intent. Similarly, in State ex ret. Stine v. Brown
County Bcl. of Elections (2004), 101 Ohio St. 3d 252, 254, the Supreme Conrt wrote tYsnt R.G.
3503.02 "provides that the person's intent is of great import." See also, State ex rel. Lukes v.
4 2930428dL .Y'otrng (1954), 161 Ohio St. 341.
The Ohio Secretary of State recently ruled on a residency issue where the ties to the
elector's coutsty were even more remote than here. In an October 28, 200$ opinion, 5ecretary of
State Jennifer Brunner ruled that an elector's temporary leave from his county of residence, the
elector's intent to return to that county, and actions taken by the elector supporting the intent to
return to the county of residence are the relevant factors in determining that elector's residency.
A protest was filed against thq residency nf former County Prosecutor Richard Welch.
Mr. Welch temporarily resided in neighboring Washington County due to military deployment
and extensive renovatiions to his Morgan County home. The Secretary reviewed a tie vote by the
Morgan County Board of Elections on the question of whether Mr. Welch was a properly
registered elector of Morgan County.
The Secretary analyzed R.C. 3503.02(A)> (B)i (D), (F), and (0) and detertnined that Mr.
Welch had only tetnporarily taken leave frrom Morgan County and always intended to retum.
iTnlike Senator Rusted's frequent stays in Montgomery County, Mr. Welch only stayed in
Morgan Gounty one night during a five-year period between Spring 2003 and Septecnber 2,
2048, i7nder R.C. 3503.02(B), the Secretary concluded that Mr. Welch was specifically
permhtedto temporatily leave his county of residency without losing his voter registration the,re
so long as he inten.ded to return and regaxxlless of the fact that his spouse also lived in
Washington Countv.
Like Nh'. Welch, Senator Husted's leave from Montgomery County is temporary and
fully related to his gAvermnental service in the Ohio legislature. Senator liusted fully intends to
return to Montgomery County following his eleetive service. As such, and based on the
Secretary's decision in the Welch case, the Board must find Senator Husted a properly qualified
and registered elector of Montgomery County.
5 243042Sw2 The Ohio Attorney General su:mnied up the relevant case law in 200- Ohio Op. Atty Gen.
No, 25: "If a person has more than one horne, the facts may support a voting residence in more than one location, and the individual's intent witl be relevant to a deternvnation of which of those locations is the residence for voting purposes." Here, his swom statement of intent, application of state law and the Ohio Constitution, all lead to a single conclusion as to his residency in Montgomery County.
C. SinguFar Focus on R.C. 3563.02Ml is InaPWopriate.
NVhile some may urge the Board to ignore the other provisions of R.C. 3503.02 and apply aection (D) in a vacuuan, this Board may not do so. P. single case that suggests a eontrary result may well be raised for this Board's consideration. However, that case is distinguisbahle and has effeetively been overctiled.
In State ex rel. Spangier v. G'arpcrlsoga County Board nf'.8lec#inns (1983), 7 Ohio St: 3d
20, a challenge was raised to a candidate's eligibility to rnn for municipal. election in the City of
Brook Park based upon the fact that the candidate's family resided in Falrview Patk.
y, the candidate owned a house in Brook Park and workeed in Brook Park. Frs wife owned a house in Fairview Park and the two "maintained separats iesidences due to the demands of their respectt'zve occupatio.bs and requirenaents of their children'.s schooling." Id at 22, Justice
Brown dissenting. The Cuyahoga County Board of Elections concluded that the candidate was eligible to run for election in Brook Park, but the Ohio Supreme Court reversed.
ht a 4-3 Opinion, without providing a detailed recitation of the facts or even the
1 e, the Spangler Court seemed to rely exclusively on R.C. 3503.02{I)).
Without analyzing any otber factors, the majority of the Court concluded that since the caudidate was married and his fami3.y resided in Fairview Park, the candidate was not eligible to rsm for election in Brook Park.
6 The rnajority did note that R.C. 3503.02(D) had not always been construed strictly and
cited two cases where the residence of the elector's farrtily was not dispositive. The Srangler
majority cited State ex rQt. Lakes u. Board of.l;'lections (1954), 161 Ohio St. 341 and Cox v.
Union City (1948), 84 Ohio App. 279, both of which held that R.C. 3503.02(A) did nat operate
to changc the candidate's res'sdency even though the voter's family was living elsewhere because
the voter intetat was to remain a resident of the jurisdiction involved. Yet the majority of the
Court in the Sprrngler decision seemEd, without explanation, to focus solely on the issue of
where the voter's family lived.
Justices Brown, Locher, and Fiahnes dissented in Spangier and highlighted
Jt..C 3503:42(A). The dissent pointed out that there was no evidence to refute the candidate's
ssse=tion that he intended to make Brook Park bis pennanent residence. The dissertt focused on
the candidate's intent and would have upheld the board of election's decision to allow the
candidate to run for office inBronk Park.
Spangler cannot properly be cited for the proposition that a caudidate is automtatically
assigned residency based solely upon where his family lives. First, there is very little narrative in
the niajority opinion, and it is impossitile to tell what other facts, if any, vere considered by the
S;vungler majority. More recent decisions of the Ohio Supreme CowM cited above, have not
followed ,Spangier. The Secretary of State properly rejected a singular focus on the residency of
the voter's fi=ily in the Welch matter. FinOly, to the extent Sprrragler tnight suggest that a
singular focus on R.C. 3503.02{D) is permissible, it has been overruled.
In Bell Y. Marinko, 367 F. Supp 3d 508 (2004), the Sixth Circuit Court of Appeals
reviewed R.C. 3503.02(D) and firmly held that applying xL.C. 3503.02(D) as an irrebuttable
presumption was unconstitutional. In short, the holding in Bell makes clear that this Board may
not apply 1LC. 3503.02(D) to presumptively conclude residency. Applying R.C. 3503.42(D) as
7 293042HY1 an irrebuttable presumption would, as the Bell Court maele clear, violate a voter's equal
protection rights.
In fact, Senator Husted's constitutional rights must be considered in several contexts
here. Ruling that Senator Husted is not a resident of Montgomery County effectively
disenfranchises bittt from voting anywhere. Ohio taw is clear that the election laws should be
liberally construed to favor an elector's right to vote. This Board must "interpret tfie durational
votitu^ requireauent liberally for ... no construction of an election law should be indulged that
would disenfrenchise any voter lf the law is reaspaably susceptible of any other meaning."
Kyser v. Board of'Elections, (1973), 36 Ohio St. 17 at 23. (;xitemal quotations and cite omitted.)
Here, an interpretation of R.C. 3503.02 to declare Senator Husted's residence as Montgomery
County is more than just a reasonable interpretation. It is an interpretation that squarely
compotls with the facts of tlxis case, Ohio law, the Ohio Gonstitution and basic principles of
protecting a voter's ability to cast a ballot.
TI. The Ohio Constitution Governs Leslslaiive l^esidcuev.
Article rt, §3 of the Ohio Constiwtion provides:
"Senators and zepresentatives shall have resided in their respective districts one year next preceding tlreir election, unless they shall have been absent on the public business of the United States, or of this ftte,°" [Emplasis added.]
The Ohio Constitution specaficSily recognizess that legislators must be absent from their districts
in order to perforni their official duties. The Board should likewise recognize that fact, Clearly,
Senator Hi'isted's time away from Montgomery County occurred during his public service as an
elected member of the Qliio legislature and for the benefit of the constituents he represents here..
This Consdtirtional ptovisioo, is consistent with and lends significant legal support to the
application of R.C. 3503.02(G). Leaving the district to serve the state is a speoific statutory
exemption that is given even greater forae and efFect by the Constitutional provision specific to
$ 2930438v2 legislators. The Ohio Constitution is also consistent with provisions of T{.C. 3503.02(B), which provides that "an elector shatl not be considered to have lost ihe person's residence who leaves the person's home and goes into another state or county of this state, for temporary pmposes anty, with the intention of retnzxmxg." Senator Husted's temporary and intermittent time away
from Montgomery County, as outlined above, was just that- temporary. He regularly retEUns to
Montgomery County, maintains significant ties here, owns a home here, and testified under oath
of his intent to return more permanently once his state elected service is over. In fact, the
Senator recently began a new job in Montgomery County with the Dayton Area Chamber of
Commerce furthering his long ties to the area and building upon his prior employment with the
Montgomery County Commissioners and with the Dayton Area Chamber of Commerce.
Ohio Constitutian Article I[, §3 and the plain language of R.C. 3503.02(0) dictates the
result of this Board's inquiry: Senator Husted is a resident of Montgomery County.
it.C 3503 02(G] Stsuyarts Senator iElnsted's Residency in Monteomery County-.
During the heming, this Board questioned the impact of Ohio Revised Code Section
fi° C,°'} 3503.02(G) R.C. 3543.02(0) provides: "If a peison removes from this state to engage 3n tlle services of the United States government, the person shall not be considered to have lost the person's residenee in this state during the period of such serviae, and likewise should the person eater oyment of the state the place where such person resided at the time of the ;on's removal shall be considered to be the rerson's pi,ace of residence."
he last hearing, Senator H313ted npted that in addition ta all of the other facttW and
legal support for his residency in Montgomery County, R.C. 3502.20(G) specifically establishes
his residency as Montgomery County.
The language of Section (G) is plain and unambiguous.- the place where a state employee
resides before leaving the jnrisdietion for state service shall be his residence. Thus, the clear
language of R.C. 3503.02(0) sets Montgomery County as Senator Husted's residence for
9 purposes of Ohio election law. R.C. 1.42 requires that the words and phrases in statutes be read
in context and con_stzued according to the rules of grammar and common usage. Statutory
language that is "plain and unarttbiguous and conveys a clear and definite meaning," need not be
interpreted, rath.er, the plaiti meaning should be applied. Meeks v. .!°ctpqdopulns (1980), 62 Ohio
St.2d 187, 190, citing Sears v. Weimer (1944), 143 Ohio St, 312, paragraph five of the syllabus.
See also, .Stute v. Hairsion, 2004 Ohio 969; Howard v. Miami 71vp. .Fare I3iv., 2008 Ohio 2792.
The well-accepted rules of statutory construction require that statutes be construed in
accordance with common sense and reason and not result in absurdity. State ex rel. Webb v
Board of Er7uc. (1984), 10 Ohio St3d 27, citing Prosen u llu„^fy (1949), 152 Ohio St. 139, and
Crowt v. DeLuca (1972), 29 Ohio St. 2d 53. R.C. 3503.02(G) is clear: Senator Iiusted's
residence is Montgomery Ooonty.
Ohio statutes are equally clear that Senator Husted as ia "the employment of the state."
He is not employed by his legislative district; any poliiical subdivision, or any other entity
relativee to his legislative service. It is simply not accurate under Ohio law to define any Ohio
legislator as an employee of anytlting but the state.
State employment is specifically defined in the Revised Code at R.G. 109.36. R.C.
109.36(A) tlefiries an "officer or employee" as any per5on who serves in an elected or appointed
office or position with the state or is employed by the state. R.C. 109.36(B) defines "state" as
specifically including, but not iinaited to, "the General Assembly." Section (D) further defines
the term "employer°' as the General Assembly, among other instrumentalities of the state.
Clearly, S,enator Husted is serving in an elected position for the state of Ohio and falls squarely
under the definitions provided in R.C. 109.36. He is employed by the state.
The definitions included in R.C. 109:36 are incorporated throughozit Ohio law in
numeroxis contexts. The provisions clarify that a state legislator is in fact a state emplayee, and
1o 29ana2Svz not the employee of his district or some any other political subdivision. For exmztple,
R.C. 109.361 requires that the At.torney General provide representation to state employees and o#licers. 3.'he Attorney General has represented state legislatars on numerous occasions and without ever questioning their status as employees of the state. See, for example, Habeeb v.
Ohio House of Representatives, 2007 Ohio 5426 at17: "At the time of the ineident, Shirley
Sniath was seMng as a member of the Ohio House of Representatives and it is undis uted that she was a state official as defined in 1t.C. 109.36." (emphasis added, examining application of personal immunity for state employees.)
Further, the basic common law of employment lends fiuther support to the fact that the state, and not the d'tsta'ict, employs a legislator. The state sets a legislator's salary and benefits; the state provides office space, supplies and st^; the state regulates the work hours and duties; and the state pays employment tax, worlcers compensation and other taxes as the employer of a
r. Article II, §20 of the Ohio Constitution, provides that the General Assembly, and not a legislative district thereof, fittes the term of ofUce and compensation for members of the
General Assembly. See aTso R.C. 101.27.
State legislators are provided state medieal insurance through the Depattrnent of
Adntir list of types of public employees. VWlhile the sts.te is listed as an eligible public etnployer, noihing within R.C. 145.01(B) includes a legislative district as an eligible public employer. Yet, legislators are covered under the Public Employees Retirement System. See also, 19$2 Ohio Op. Atty Cren. No. 80. R.C. 124.151 requires direa# deposit of compensation for every "state employee"' and defines compensation to include the salary as well as travel allowance paid to state legislators under R.G. 101.27. 11 Notlting in the Revised Code suggests that a legislative district, and not the state itse3f, is the employer of a legislator. A legislator cannot be an employee of his district for one simpie reason: a legislative district is not a political subdivision or any other type of entity given the authority or ability to employ individuals. Politioal subdivisions are defined in numerous places in Ohio law, including R.C. 109.36(C), as municipal corporations, townships, counties, school dista'itcts, or other bodies carporate and politic. l.egislative districts are not political subdivisions. Rather, a legislative t3istrict is part of the state. A district is without separate legal status, independent funding, or the suthnrity to employ. A distttict is simply a boundary line that defines the territories within the General Assembly as established through the apportionment process in Article XI, §7. "The only General Assembly districts recognized in law are the geographic boundaries set up by the decennial apportionment process ...:" 1991 Ohio Op. Atty Gen. No 45, examining the residency requirement of legislators trnder R:C. 3.15. 'Iltis Board may not ignore R.C. 3503:02(Cr). Doing so would lead to the kind of absurd result which Ohio courts repeatedly rejecL Ohio law sirnply camtot permit a sihmtion where an elected official is required to leave his district to do the state's business, and tbsn punish that official by disenfranclrising him and stripping him of his right to vote. The absurdity of such a conclusion is only highEighted when the constitutional issues involving this matter are examined. IV. Conclusion. Senator Husted's home has been and continues to be in Montgomery County. The Senator's teurporary time away fram Montgomery Countywhile on official public businass as an elected member of the C7hio Cleneral clearly avail him of the exemption found in R.C. and offer the proteciions under Article Il, §3 of the Ohio Constitution. Moreover, his clear intent to rnaintazn his permanent home and residence in Montgomery County now, and following his tenure in pubiic service, align with myriad decisions of Ohio courts in 12 29313A2Se8 view-ing an elector's intent as the partsmount inquiry in determine residency. As such and for the reasons outlined above, the Board's inquiry inio Senator 14ns€Ed's residency should end Nvith a finding that his official residence is 148 Sherbrooke T3rive, Kettering, Ohio, and that he is and remains eligible to vote in Montgomery County. Respectfally submitted, ia 7. Arinstfong {403897: Christopher N. Slagle (0077641) BRICK,:ER & ECKI.ER LLl' 100 South Tbnrd Street Colutnbus, OH 43215 Phone: 614.227.2300 Fax: 614.127.2390 }rmail:marmslxongftriaker.cont E mail:cslasie briaker.eom Counsel for Senator Jon Rusted CERTIFICATE OF SERVICE . I hereby certify #hat a true copy of the foregoing tvlEit+&ORANDUM IN SUPPORT OF DISIvIISSAL OF RESIDENCY HEARING was served via regular Unitad States mail, postage prepaid, upon the following this /Oday of February 2049. Victor T. Whisman, Esq. Assistant Montgomery County Prosecuting Attomey 307 West'Z#ra.rcl Street, 5th Moor Dayton, OH 45422 Counsel, lv.tontgomery County Board of Elections February 25, 2009 Board Meeting: Jon Husted Residencv The Montgomery County Board of Elections met in session at 11:00 a.m. on Wednesday, February 25, 2009. The meeting was called to order by Chairman Gregory Gantt. Members in attendance were Thomas J. Ritchie, Dennis Lieberman, and James Nathanson. The following is a transcript of discussion regarding Senator Jon Husted's residency. GG Next item ... report from legal counsel on the question we asked you regarding Senator Husted. VW You had asked me to interpret Ohio Revised Code Section 3503.02(G). In the interim we have received a Memorandum in Support of Dismissal of Residency Hearing from Senator Husted's attorney Maria Armstrong. I suppose all of you have gotten a copy of that. I've reviewed that also. This is kind of an odd thing. Let me start with this, (G) of course says "If a person removes from this state to engage in the services of the United States government, the person shall not be considered to have lost the person's residence in this state during the period of such service, and likewise should the person enter the employment of the state, the place where such person resided at the time of the person's removal shall be considered to be the person's place of residence. " Senator Husted, when he tesrified at the last Board meeting, or the meeting before last, indicated that it was his opinion under that particular section that this exempted him from (D) of 3503.02, which is the subsection that says that if a person's family resides in a particular location as other than the county where he's registered, then that shall be considered his place of residence. Interestingly enough, the Senator's attorney. has argued that 3503.02(G) should be read...here's that word again that you and I discussed yesterday ... that term in uari materi a with Article 2, Section 3 of the Ohio Constitution. Article 2, Section 3 says "Senators and representatives shall have resided in their respective districts one year next preceding their election, unless they shall have been absent on the public business of the United States, or of this State. " The Senator's position, I believe, is that when you read this together with 3503.02(G), that it can be fairly read to mean that having once been elected...if you've been absent from your particular jurisdiction on the business of the state, which would be his business in Columbus on behalf of the local district, that he doesn't loose his place of residence in Montgomery County as a result of that. The Senator's attomey has argued that that's perfectly clear under the Code. I would submit that it's not perfectly clear at all...it's anything but. This is a good example of a poorly drafted section of the Code. I don't know what it means, to be quite frank with you. It certainly can be read the way that the Senator is suggested, but if you look at the actual wording of this particular subsection ... the key term is removal, and in the first clause, removal is with reference to removal from the state. In the second clause, there's no particular word that modifies that in anyway shape or form, it just says removal. I don't know...removal from what? Removal from the city, removal from the county, removal from the state...who knows? I don't know. My position is this ... expanding beyond this just a little bit, if you'll entertain this. I've had private discussions with several of you Page 1 of 4 since we began discussing this. You'll recollect that I have said on several occasions that it's my opinion that subsection (D) is in fact something that is known as a rebutable presumption. (D) says "The place where the family of a married person resides shall be considered to be the person's place of residence; except that when the spouses have separated and live apart, the place where such a spouse resides the length of time required to entitle a person to vote shall be considered to be the spouse's place of residence. " We've had some prior conversation about whether shall means shall in that particular statute. As the lawyers in the room know, most of the time it does, but not always. In this particular instance I would say that it does not. The reason I say that...this is mentioned in the Senator's brief, and it's fairly well stated, it comports with the conclusion that I had already drawn with regard to this ... although, to be honest with you, I was not familiar at the time with the case of Carrington vs. Rash, although it was sited, I had not read it then, and the Bell vs. Marinko case. Bell vs. Marinko is a case that emanates out of the Northern District of Ohio at Toledo...it specifically addresses this 3503.02(D). Basically, what it says is that...let me read just one little part of this, it says that "bonafide residents may be determined not only by an intent to reside at a fixed place, but also factors that express such an intent. " If you look at 3503.02 in its totality, what you're talking about...when you look at (D), (D)'s not talking about intent, it's talking about an objective fact...a person's family resides some place else. That is an expression, if you will, according to this court , and I think correctly so of intent. Intent is not only what a person says, intent can also be implied from the person's acts. The person in this particular instance has a family, which resides some place else. The Carrington case, which is sited by the Federal District Court in Toledo, and this Bell case basically says that if you're going to keep from n,nning afoul to the equal protection clause when you're talking about residency and presumptions regarding residency, you're going to have to make those presumptions rebutable, as opposed to irrebutable. Now, if you look at this within the context of the Ohio statute and within the context of what you've got before you...I think what this all boils down to is this, Senator Husted's family doesn't live here, they live some place else. That objectively raises the question...is the residence in Montgomery County proper or should it be proper in the other location? The presumption is that the residence is other than Montgomery County, but the presumption is capable of being overcome. It's overcome by presentation of evidence. The evidence has been presented here by way of the testimony of Senator Husted. So, the question before you in my opinion is whether or not the evidence that was presented by the testimony of Senator Husted, which comports with the other intent sections of 3503.02, was sufficient to overcome the presumption in subsection (D) with regard to the residence of his family. Now, the other thing that I want to address just briefly with regard to that is...we've got this Spangler case, which the lawyers know is hanging around out there, which talks about this particular subsection and more or less seems to indicate that it's a forgone conclusion ... if that's the situation, your family resides some place else, then for residence purposes that's your residence. But the Spangler case did not look at, and did not discuss the Carrington case...the Carrington case preceded that. I think basically, if I might, that it is something that probably escaped their attention. The question of whether or not (D) should be Page 2 of 4 applied as an absolute, or whether it's something that can be overcome simply was not something that they examined. The Bell court in Toledo did'examine it...I think they examined it properly. Under those circumstances, I think that with regard to this again, what you've got to ask yourselves as a Board is whether or not the evidence that was presented by Senator Husted with regard to residency was sufficient to overcome the presumption of residency that occurs in subsection (D). GG Vic, after that hearing I started doing some digging on my own. I asked BeI to forward to each of you...there was an opinion by Secretary Brunner on October 28 of 2008 in Morgan County. Did you get a chance to review that? VW It appears that Senator Brunner has interpreted subsection (D) in the same manner as the Bell vs. Marinko case. GG It's very similar to Senator Husted's testimony. I also found, even though it's not an opinion on the... JN She's not quite Senator yet. VW That's right, pardon me. Not quite yet. GG On the Ohio State Law website discussing Governor Strickland having a home in Washington, Columbus, and in his district. I said in my e-mail to all of you...I said based upon...and I look as we've leamed, not so much at case law and Secretary Brunner says, reading her opinion of October 28s' and this law opinion, and based on Governor, I'm sorry, Senator Husted's testimony, I make a motion that I'm satisfied with his testimony that he is a resident of Kettering...he was on the ballot. I make a motion that we've done our job and investigated this and that he's a resident of 148 Sherbrooke Avenue. JN And I second the motion. DL Before we vote, I think we probably ought to have some discussion on this. GG Please. DL We've spent a lot of time on this and just to remind everyone of the background...this came to our attention initially through a Dayton Daily News article about claiming exemptions in Columbus and Dayton. I think that's how it came to the public's view. Then, we received a complaint from two different individuals, one of whom...one is not an individual, one is a 501 C3, the other is an individual who filed a complaint with us to investigate Mr. Husted and whether or not Mr. Husted lives in the district. That was a registered Republican from his district. Based on that, we decided to do an investigation. One of the things that we did was that we asked Mr. Husted in here to give testimony, which he did do. Unfortunately, there's no documentation provided by him to support some of the assertions he was making. No utility bills; the trust that he mentioned as far as his deed to the house...I was really interested in examining that because I think that goes to future intent...never received that; Kettering income tax to demonstrate whether he's paying an income tax in the City of Kettering as his residence...didn't receive that; didn't receive any utility bills as mentioned. Did look as some water bills, which would indicate that he has very low water usage in that Kettering residence. One of the things that struck me about his testimony was the fact that he couldn't remember ... he said that he and his family had visited the residence the weekend before, however, he couldn't even remember if they stayed overnight. So, I'm looking at this based upon the legal interpretation, not under Spangler, but I'm looking at it under the Bell analysis. The Bell Page 3 of 4 analysis is that there is a rebutable presumption, as I understand it. A rebutable presumption to me means that it is undisputed that his family lives in Columbus, therefore, the is a presumption that his residence is in Columbus. That needs to be rebutted with some evidence by Mr. Husted. I think he fell short in his testimony of rebutting that evidence. Therefore, based upon that, I'm going to have to vote against your motion. GG Tom. TR You know where I'm at on the issue. We have talked previously and I'm going to have to vote against the motion also. GG Ok. Call the question. Do roll ca1l...Member Nathanson. JN In support of the motion. GG Member Lieberman. DL Against GG Member Ritchie. TR Against GG Chair votes for. 7N We have to do it again. DL Three times. GG Second time. DL Are you changing your vote? JN I am for the motion DL Against TR Against GG For. Third time. JN I support the motion. GG Thank you. DL Against. TR Against. GG For. Ok, we have a 2-2 tie. 14 days, is that our plan? SH Position papers from both sides. GG Ok. Prepared by: R. Lehman Page 4 of 4 Position Paper of Tom Richey and Dennis Lieberman; Montgomery County Board of Election Members Re: 2-2 Tie On The Question of Senator Husted's Residency 1. BACKGROUND The Dayton Daily News ran an article before the November 2008 Election questioning the residency of then Speaker, John Husted. The question at issue was then Speaker Husted and his wife clainling tax exemptions in both Franklin County, Ohio and Montgomery County, Ohio when only one would be appropriate. Subsequent to the Dayton Daily News article there were complaints filed asking for the investigation of then Speaker Husted's residency by Progress Ohio, a 501(C)(3) organization and by a registered Republican residing in Speaker Husted's legislative district. Both of the filings however, were too late to be considered for the November election. Therefore, the Montgomery County Board of Elections agreed to consider the residency of Speaker Husted for purposes of voter registration prior to the next election. The investigation itself, how it was going to be conducted and documents to be produced were the subjects of much discussion. Member Lieberman had requested a list of eighteen documents from then Speaker Husted. This request was not agreed upon by the two Republican members of the Board of Elections. A compromise could not be reached and documents were NOT produced by Speaker Husted. There was an agreement that now Senator Husted would appear before the Board of Elections for purposes of his testimony relating to his residency, without subpoena. Senator Husted appeared before the Board of Elections on January 7, 2009 at 11:00 a.m. Senator Husted first made a statement and then was questioned by member Lieberman regarding his residency. II. FACTS Senator Husted began by making a statement to the Board of Elections claiming that his residence at 148 Sherbrooke Drive in Kettering, Ohio is the "only home I own." "It is the place where I pay my taxes, receive my mail and where I voted for 14 years." Senator Husted then stated that he is in Columbus, Ohio often "Being speaker is a 7 day a week job and included oversight of over 200 employees, 20 comnuttees,..." Senator Husted then explained that after he fell asleep at the wheel one evening on his way back to Kettering he decided to spend nights in Columbus. "This was less than an ideal solution in the short term, so I soon found an apartment for rent and another short term solution. Over time, I had rented, owned, or stayed with family, in at least six different places while carrying out my duties." Senator Husted took the position that "Columbus is not my home. I have never abandoned my residency in Kettering and when my public service is completed, I intend to return home full time to Kettering." However, upon further questioning, Senator Husted stated the following. "Does my family reside in Columbus? I would say for the most part that is accurate ° After further questioning about whether his family stays in Kettering he stated that they were in Kettering "last weekend. Okay. Did they stay the night or the day? Last weekend...I don't think we stayed last weekend." Senator Husted further stated, "My son is thirteen and his mother lives in Upper Arlington. He has attended school there since he was in Kindergarten." Senator Husted's second marriage occurred approximately three years ago. "She lived in Columbus." "And we have maintained... She's maintained a house there. She is in the real estate business. We have also remodeled the house in Kettering, a project that she was responsible for and led. We did all of that just 2 years ago." When asked how many houses he owns, Senator Husted's response was "I don't own any." His wife "owns one house" which is different from earlier testimony when Senator Husted stated the Kettering house is the only house he has ever owned. When asked about his DP&L bills, Senator Husted said the following: DL: "Can you tell me what your average DP&L bill would be for the past year at the Kettering residence?" JH: "I can't. I don't know off hand." DL: "Would you estimate that it was less than $100.00? Was it more than $100.00? Was it more than $200.00?" JH: "I don't know. I really don't." At one time, Senator Husted claimed that the Kettering residence was in his name, however, when confronted with an affidavit from a neighbor of his who indicated that Mr. Husted's Kettering house deed was in a Trust his response was: "The only thing of it...again, when I got married, we did a will to avoid...As you get advised to make sure that there are no problems with the Probate of the distribution if something were to happen to your property, then you put it in a Trust that then you can give to your children in the family, and likewise my wife did the same thing with her assets. I believe that's what they would be talking about." Senator Husted did not know the details of his Trust. To try to clarify whether his Kettering property is in a Trust the following question was asked: "To the best of your knowledge, it's in a Trust?" Senator Husted: "If we didn't have such a high estate tax in this State you wouldn't have those kinds of problems." Senator Husted was asked to provide a copy of the Trust and his response was "I don't know what the...I would have to check. I don't know exactly what it is, or what the purpose is. I don't like to give my personal financial records out to people..." Again when asked to provide it to us his response was "I would certainly entertain that request and do my best to fulfill it " However, he never did fulfill the request. When asked how often he was at the Kettering residence, Senator Husted's response was "...I'm there weekly." DL: "OK. Can you average it for me? Is it more than once a week?" JH: "It really just depends on what the schedule is and what the demands on my time are. That is the best that I can do for you." Senator Husted claims that he pays Kettering Municipal income taxes and that his income tax bills are sent to the Kettering residence. Senator Husted wasn't sure where his P.E.R.S. statements are sent. Senator Husted's paycheck goes to his wife's account in Columbus, although Senator Husted claims that he has an account at Day Air Credit Union in Dayton. Senator Husted claims not to have any banks in Columbus and when asked the question "Do you have any banks in Columbus?" Senator Husted's answer was "I don't, no." Senator Husted's paycheck is deposited in his joint banking account in Columbus, but he claims not to write any checks out of it. The above was the essence of Senator Husted's testimony to the Board of Elections. Although Mr. Lieberman requested a number of documents, including utilities, water, telephone, local tax returns, P.E.R.S. statements, bank accounts, the trust account which would include his Kettering property, none of the above were produced and the two Republican Board members refused to require them to be produced. A public records request was sent to the Montgomery County Water Dept., by member Tom Richey. In response a number of records were received for a three year time period. These records establish two matters. One, that Senator Husted's water usage was so low as to suggest no one was living in the Kettering residence. Two, that when water bills would be paid in this three year period of time they were paid by the joint checking account in Columbus, Ohio. III. THE LAW The controlling legislation to determine the residency of a person for purposes of voting is Ohio Revised Code §3503.02. Subsection (A) of O.R.C. §3503.02 states that "a place shall be considered a residence of a person in which the person's habitation is fixed and to which, whenever the person is absent, the person has the intention of retuming." In trying to determine a person's fixed habitation subsection (D) of O.R.C. §3503.02 states "The place where the family of a married person resides, shall be considered to be the person's place of residence..." Subsection (G) of O.R.C. §3503.02 further states "If a person removes from this State to engage in the services of the United States Government, the person shall not be considered to have lost the person's residence in this State during the period of such service,..." Senator Husted felt that subsection (G) was applicable to him. His Attorney filed a Brief maintaining that it was applicable to him. However, it was the opinion of the Montgomery County Prosecutor's office which represents the Board of Elections that subsection (G) is not applicable to Senator Husted and it is also the opinion of the author of this Memorandum that it is not applicable as it only applies to federal employees and individuals in Congress. The Ohio Supreme Court in State ex rel. Spangler v. Cuyahoga County Board of Elections (1983), 7 Ohio St.3d 20, held that if a candidate was married and his family resided in Fairview Park, the candidate was not eligible to run for elections in Brooke Park. The Spangler Court relied exclusively on Ohio Revised Code §3503.02(D). The Spangler decision is a mandatory application of Ohio Revised Code §3503.02(D). If the Board of Elections were to follow the Ohio Supreme Court's ruling in Spangler, then it would have to find that Senator Husted's family lives in Columbus and not in Montgomery County and therefore his proper voter registration is in Franklin County and not Montgomery County. In Bell v. Marinko, 367 F.3d 588 (2004) the Sixth Circuit Court of Appeals reviewed Ohio Revised Code §3503.02(D) and held that it cannot be treated as an irrebuttable presumption. The Bell case held that §3503.02(D) is a rebuttable presumption. If the Board follows the mandates of the Bell case, then the evidence of Senator Husted's family living in Columbus establishes a rebuttable presumption that Senator Husted is incorrectly registered and should register in Franklin County. However, that presumption may be rebutted by evidence sufficient in nature to demonstrate that his residency is actually in Montgomery County, Ohio. Member Richey and Member Lieberman followed the Bell decision and found that there was a rebuttable presumption that Senator Husted resides in Franklin County, Ohio and not at the Kettering, Ohio residence. Members Richey and Liebernnan further found that there was insufficient evidence presented for them to make a finding that Senator Husted rebutted the above presumption and properly resides in Kettering, Ohio. All that Senator Husted presented was a self-serving statement and somewhat vague answers to questions. When asked to present documentation to support his swom statement, Senator Husted failed to present any documents to corroborate his statements before the Board of Elections. When members Richey and Lieberman asked members Gant and Nathanson to request our attorney to issue a subpoena for records, members Gant and Nathanson refused. It is impossible to make a determination as to the proper residency of Senator Husted if the Board of Elections is forced to rely solely on the testimony of Senator Husted. His testimony alone was insufficient to overcome the legal presumption that his residency is in Columbus, Ohio. Senator Husted has received the respect and deference of this board in investigating the complaints which have been lodged against him. However, Senator Husted is not above the law, nor should he be treated any differently than any other citizen of this State when reviewing a complaint about their residency. Members Lieberman and Richey voted against the Motion to fmd that Senator Husted is properly registered in Montgomery County, Ohio for purposes of residency because there was insufficient evidence to rebut the uncontested fact established by Senator Husted's admission that his family resides in Franklin County, Ohio. Therefore, until sufficient evidence is presented in the form of documentation to corroborate Senator Husted's statements at the board of Elections members Lieberman and Richey cannot vote for a motion which fmds that Senator Husted is properly registered in Montgomery County, Ohio. Respectfully Submitted, Dennis A. Lieberman, Member, Montgomery County Board of Elections -w J N °o arch 9, 2009 -+o ^ 7a ,--, fTt The Honorable Jennifer Brunner n Ohio Secretary of State fT7 30 East Broad Street, 14th Floor .; •C Columbus, OH 43215 m O Dear Secretary of State Brunner: N On January 7, 2009 and again on February 25, 2009, the Montgomery County Board of Elections (`Board") reviewed questions surrounding.the residency and voter registration status of State Senator Jon Husted. At the January 7, 2009 hearing, Senator Husted appeared voluntarily and testified, under oath, to clear and uncontroverted information that he resides at 148 Sherbrooke Drive, Kettering, Ohio 45429, and has consistently maintained his residency in Montgomery County for at least fourteen years. The Board continued its review of this issue until a second hearing on February 25, 2009. Following continued and lengthy discussion and information from the Board's counsel, the Board members tied 2 to 2 on the issue of whether Senator Husted is a resident of Montgomery County. Both meetings were properly noticed under the Open Meetings Act and the subject of fairly extensive media coverage. Yet not one person came forward to testify against Senator Husted. Moreover, not one bit of evidence, besides Senator Husted's testimony, has been formally presented, authenticated, or entered into the record. The record in this matter is completely one-sided in favor of finding Senator Husted's residency in Montgomery County. More than five months has passed since this issue first arose. A primary election is looming and we have a properly registered voter who mants to vote in our county without controversy or contention. We respeotfally disagree with our esteemed colleagues who feel that they do not have sufficient information to make a decision. After two highly-publioized meetings, our record is and should be closed. The evidence is overwhehningly one-sided. Based upon the evidence before this Board and Ohio law, we voted to find that Senator Husted resides in, and is eligible to vote in, Montgomery County. Our votes comply with the Ohio Constitution, statutes, and case law in determining the residency of electors and, speoifically, an elector who is a member of the Ohio General Assembly. We respeatfully urge you to concur with our votes and end this prolonged matter once and for all. Senator Husted testified that Kettering, Ohio has been his home for fourteen years and is the place where he lived before his first campaign for the Ohio House of Repiresentatives in 2000. He further testified that Montgomery County is where he works, pays taxes, votes, and continually owns a home. In 2000, Senator Husted was elected to the House of Representatives and entered the employment of the state. Since 2000, he testified that he spends a significant time in Columbus as part of his official responsibilities in the Ohio General Assembly. Senator Husted testified before the Board that, to the extent he left Montgomery County temporarily, he did so as an elected member of the Ohio House of Representatives. Since this Letter to Secretary of State Brnnner Husted Residency Issue March 9,2009 Page 2 of 2 issue first arose, Senator Husted's ties to this county have only strengthened. Now elected to the Ohio Senate, Senator Husted's time-consuming duties as Speaker of the House have ended. He recently started another job in addition to his position with the Ohio Senate: that job is in Montgomery County. The Senator testified, under oath, and answered myriad questions relating to his residency at 148 Sherbrooke Drive in Kettering. The Senator answered specific questions, under oath, detailing specific and frankly, very personal matters to establish that: - He continually owns a home in Montgomery County. - He intends to reside and continues to reside here. - He works in Montgomery County. - He pays his property taxes in Montgomery County. - He pays his state income taxes in Montgomery County. - He pays Dayton Power & Light utility bills in Montgomery County. He pays other utility bills in Montgomery County. . His P13RS account and statements are mailed to Montgomery County. - He banks with Dayton Air Credit Union. He shops for groceries at the Kroger, among other locations, in Kettering. His vehicles were purchased in Dayton. His vehicles are registered in. Montgomery County. He spends time in Kettering frequently and regularly, but because of his duties to his Montgomery County constituents, is not here not continually. All of the questions asked of Senator Husted and his responses to each are clearly detailed in the official Transcript from the Board's January 7, 2009 hearing on this issue. (A copy of the transcript is,attached.) We found that staying in Columbus was a means by which Senator Husted executed his official public responsibilities, but.Columbus is not his home. The fact that his family resides there now is not dispositive, nor can it be under the law. His home is and has been Kettering, Ohio. It is important to note that nothintt has been presented to refute these facts. NothinQ has been presented to us to undemiine the Senator's swom statement related to his intent to reside in Montgomery County. The testimony and infonnation presented to the Board at our January 7, 2009 hearing firmly establish that Senator Husted is a resident of Montgomery County. He gave a clear statement of his intent to reside, and continue to reside, in Montgomery County. Thus, he meets the residency provisions of R.C. 3503.02. We adopt and incorporate the attached brief, submitted by Senator Husted, which outlines the law in this matter and the legal significance of the Senator's int.ent as to his residency. On February 25, 2009, the Board met again regarding Senator Husted's residency. No additional testimony, materials, evidence, or documentation refuting any discussion item or statement made by Senator Husted at the January 7, 2009 hearing was presented. In addition to being properly noticed as public meetings, both meetings were well publicized. The Dayton Daily News and local television stations covered the meetings. Still, no one has come forward to refute any answer to any question presented to Senator Husted nor has any information or documentation been presented to refute the fact that his residence is located at 148 Sherbrooke Letter to Secretary of State Brunner Husted Residency Issue March 9, 2009 Page 3 of 3 Drive. (A copy of the official Transcript from the February 25, 2009 hearing is attached.) Our fellow board members asked a number of questions about water bills, the Senator's wife, her job, their children, a housing trast of some sort, and other vague and undocumented matters. This issue arose from an e-mail obtained by a single member of the Board, and was first shared with the Board as a whole during the hearing on January7th. The individual who sent the e-mail inquiry either chose not to attend the January 7th, hearing or sat silently by without providing any testimony, a single document, or any evidence. The Senator, on the other hand, voluntarily appeared and answered all. questions under oath. Frankly, the weight and amount of the evidence presented in this matter was not sufficient to support a parking ticket, let alone justify disenfranchising a voter. Boards of Elections simply cannot disenfranchise a voter without significant and substantial reasons for doing so. The public was given not one, but two separate opportunities to come forward and provide us with those reasons. No one did. The questions have been raised and appropriately and fully answered. We have all the information necessary to determine that Senator Husted does, in fact and under Ohio law, reside in Montgomery County and may vote here. This Board has already prolonged this matter for longer than it has in any other similar case. In other situations related to a voter's residency, we've given all due deference to the right to vote and acted quickly. It troubles us that Senator Husted is being treated differently than any other voter. Prolonging this matter potentially disenfranchises a duly registered and eligible elector. A primary election will be held on May St'.' If Senator Husted must reregister elsewhere as a result of your ruling, he only has until April6{'` to do so. However, the evidence before us all leads to but one conclusion: Senator Husted is properly registered here. Based on the Board's inquiry into. Senator Husted's residency matter, the two meetings held on this issue, and the resulting information provided, it is clear that Senator Husted's home has been and continues to be in Montgomery County. Through counsel, Senator Husted provided the Board an overview of the legal standards governing-residency issues for elected members of the Ohio General Assembly. We believe that memorandum is compelling and answers any outstanding legal issues. Thus, we are attaching the Senator's legal brief to this letter and urge the Secretary to consider its merits in voting to end this matter. For the reasons outlined above and accompanying this letter, we urge you to break the pending tie vote to end any additional inquiry into Senator Jon Husted's residency and find that his official residence is 148 Sherbrooke Drive, Kettering, Ohio, and that he is and remains eligible to vote in Montgomery County. Respectfully submitted, Gregory Gantt, Chairman / James Nathanson, Member Montgomery County Board of Elections Montgomery County Board of Elections JENNIFER BRUNNER OHIO SECRETARY OF STATE 1 SO EAST BROAD STREET, 16TH FLOOR COLUMBUS.OHIO 43215 USA TEL: 1-877-767-6446 FAX: 1-614-644-0649 WWW. SOS.STATE.OH. U5 June 8, 2009 Steven P. Harsman, Director Montgomery County Board of Elections 451 West Third St. Dayton, Ohio 45481 RE: Tie vote on whether Jon A. Husted is a qualified elector of Montgomery County Dear Mr. Harsman: On February 25, 2009, the Montgomery County Board of Elections reached a tie vote on the question of whether Jon A. Husted (hereinafter "Husted") is a qualified elector of Montgomery County. My analysis and direction to the Board are outlined below. Background Husted currently serves as state senator, representing Ohio's Sixth Senate District, having been elected at the 2008 general election. Prior to his term in the state senate, Husted served as state representative from the Thirty-seventh House District from 2001 through 2oo8. Husted also served as Speaker of the Ohio House of Representatives from 2005 through 2oo8. Following requests for investigation into Husted's residency received on October 27 and 28, 20o8, the Montgomery County Board of Elections initiated an investigation of Husted's residency and qualifications as an elector of Montgomery County.l The Board conducted an investigatory hearing on January 7, 2oog, at which Husted appeared and testified on his own behalf. On February 25, 2009, the Board reached a tie vote on a motion to find that Husted is a resident of Montgomery County, residing at 148 Sherbrooke Drive, Kettering, Ohio. In accordance with RC. 35oi.nt(X) and with the procedures outlined in the Ohio Election Official Manual, the Montgomery County Board of Elections submitted the tie vote to me on March ii, 2oo9. After reviewing the transcripts and board members' position statements included with the tie vote submission, I concluded that there was insufficient evidence to properly determine Husted's residency. As discussed herein, Husted's testimony clearly denionstrated his future intention to return to Montgomery County when his term of public service is complete. The record was incomplete and inconsistent, however, with regard to evidence of his present circumstances - an essential element in determining where Husted's "habitation is fixed." R.C. 3503.02(A). = The procedural history of the investigation of Husted's residency and resulting tie vote is more fully outlined in my letter to the Board dated April 7, 2009. Montgomery County Tie Vote - Husted Residency Page 2 of 5 June 8, 2oo9 Due to the lack of sufficient evidence, on April 7, 2009, I advised the Board that I was holding the tie vote in abeyance and would be providing Husted the opportunity to submit additional documentation supporting his claim of residency in Montgomery County. On April 8, 2009, I issued a letter to Husted requesting that he submit documents and records related to his residency, specifically utility records for the relevant time period, local tax returns, Ohio Public Employees Retirement System statements, bank account records, and legal documents related to the property located at 148 Sherbrooke Drive. These documents had previously been sought by Montgomery County Board of Elections member l:ieberman, but the Board had not compelled their production, nor had Husted voluntarily produced the documents. On April 17, 2009, Husted responded by sending a group of documents directly to the Montgomery County Board of Elections, with a copy to my office. Husted's response included some of the documents that had been requested, along with additional materials offered in support of his residency. After reviewing Husted's voluntary submission, I determined that further information would be needed to settle the question of his residency. Specifically, Husted's submission was incomplete with respect to utility and property records. In order to accurately determine Husted's residency, additional information on these areas would be necessary. R.C. 3501.05 permits the Secretary of State to "administer oaths, issue subpoenas, summon witnesses, [and] compel the production of books, papers, records, and other evidence" in the performance of her statutory duties, including the duty to resolve tie votes from boards of elections. Pursuant to this authority, my office issued six subpoenas for documents related to utility consumption, occupancy, and ownership of the property located at 148 Sherbrooke Drive, as well as Husted's ownership of property in Franklin County, Ohio. The documents received in response to these subpoenas are discussed herein and are enclosed with this letter for the Board's consideration.2 Discussion The tie vote of the Montgomery County Board of Elections concerns whether Jon A. Husted is a qualified elector of Montgomery County. The statute providing the rules for determining the residence qualifications of an Ohio elector is R.C. 3503.02. The portions of R.C. 3503.02 relevant to this matter are: All registrars and judges of elections, in determining the residence of a person offering to register or vote, shall be governed by the following rules: (A) That place shall be considered the residence of a person in which the person's habitation is frxed and to which, whenever the person is absent, the person has the intention of returning. (emphasis added) (B) A person shall not be considered to have lost the person's residence who leaves the person's home and goes into another state or county of 2 The copies of documents received in response to the subpoenas being provided to the Board have been redacted to remove any of Husted's personal or confidential information, in accordance with the requirements of Obio law. Montgomery County'ISe Vote - Husted Residency Page 3 of 5 June 8, 2009 this state, for temporary pttrposes only, with the intention of returning. (emphasis added) (C) A person shall not be considered to have gained a residence in any county of this state into which the person comes for temporary purposes only, without the intention of making such county the permanent place of abode. (emphasis added) (D) The place where the family of a married person resides shall be considered to be the person's place of residence; except that when the spouses have separated and live apart, the place where such a spouse resides the length of time required to entitle a person to vote shall be considered to be the spouse's place of residence. (emphasis added) (F) Except as otherwise provided in division (G) of this section, if a person removes from this state and continuously resides outside this state for a period of four years or more, the person shall be considered to have lost the person's residence in this state, notwithstanding the fact that the person may entertain an intention to return at some future period. (G) If a person removes from this state to engage in the services of the United States government, the person shall not be considered to have lost the person's residence in this state during the period of such service, and likewise should the person enter the employment of the state, the place where such person resided at the time of the person's rernoval shall be considered to be the person's place of residence. (emphasis added) Husted was the only witness to testify at the Board's January 7, 2009 hearing.3 Reviewing Husted's testimony and applying it to the rules for determining residence under R.C. 3503.02 (listed above), it is clear that, prior to 2oo1, Husted was a resident of Montgomery County, living at 148 Sherbrooke Drive in Kettering. It is undisputed that since 2oor., Husted has spent "considerable" time living outside Montgomery County on a regular basis. It is also undisputed that Husted's family presently resides outside Montgomery County. Thus, it appears that Husted has homes in both Montgoinery County and Franklin County. Although an individual may have more than one home, under Ohio law only one of these homes may be his "residence" for purposes of voter registration. Determining Husted's eligibility to be a Montgomery County voter requires determining which of his homes constitutes his "voting residence." Husted's testimony repeatedly emphasized his intent to return to Montgomery County on a full time basis when his public service is completed. The courts have noted that a "person's intent is of great import" in applying R.C. 3503.02. State ex rel. Stine V. Brown Cty Bd. ofElections (2004),1o1 Ohio St.3d 252, 2004-Ohio-771, at ¶15. However, "[b]ona frde residence may be determined not only by an intention to reside at a fixed place, but also by factors that express such an intent." Bell v. Marinko a The contents of Husted's testimony are more fully outlined in my letter to the Board dated April 7,2009. Montgomery County Tie Vote - Husted Residency Page 4 of 5 June 8, 2009 (C.eL6, 2004),367 F•3d 588, 592 (emphasis added). The law expressly provides that residence is the location where a person's "habitation is fixed." R.C. 3503.o2(A) (emphasis added). A voter's present circumstances are necessarily part of the analysis in determining his voting residence. These determinations have historically been conducted on a case-by-case basis, applying the guidelines contained in RC. 3503.02. Determining Husted's residency likewise depends on an analysis of the available facts and application of those facts to the statutory guidelines. Because further information has been developed which the Board did not possess during its initial deliberations, it is appropriate that the Board reconsider the question of Husted's residency. The evidence provided in Husted's submission and the documents received in response to this office's subpoenas should assist the Board in applying the statute and deternmining where Husted's habitation is presently fixed. The Board previously received Husted's voluntary submission and should review the documents included with that submission. Included with this letter are the documents received in response to this office's subpoenas, which are briefly outlined below. • Documents received from the Montgomery County Auditor related to Husted's ownership and property tax payments for the property located at 148 Sherbrooke Drive, Kettering, Ohio. • Documents received from Dayton Power & Light Company related to electricity consumption for the property located at 148 Sherbrooke Drive during calendar years 20oo and 2oo8 and natural gas consumption during calendar year 2000.4 • Documents received from Vectren Corporation related to natural gas consumption for the property located at 148 Sherbrooke Drive during calendar year 2008. • Documents received from the Montgomery County Department of Water Services related to water consumption for the property located at 148 Sherbrooke Drive during calendar years 2ooo and 2oo8. • Documents received from the United States Postal Seruice related to mail forwarding requests for mail received at 148 Sherbrooke Drive. • Documents received from the Frankfin County Auditor related to Husted's ownership and property tax payments for properties located in Frankiin County. As a part of its reconsideration of this matter, the Board is also advised that it possesses the power to subpoena witnesses to testify and appear at a hearing if the Board members believe that is necessary. RC. 3503•24(B)- 4 Tbe amount of time spent at a location may be relevant to determining whether an individual is a resident of that location, especially where the individual divides his or her time among multiple locations. See, e.g., Bell v. Marinko, 367 F.3d 588, 59o fn.2 (6th Cir. 2004) (noting that the appellants spent "one hundred ninety-four days each year" on KelIey's Island and otherwise resided in Franklin County, Ohio)_ Husted testified that he °split[s] time between° Columbus and Kettering and that he began arranging for overnight stays in Columbus during his first term as a state representative. Hearing Tr. 2, 5. Husted could not specifically state how frequently he is present at the pmper[y in Kettering. Hearing Tr. 5. In determining whether Husted lives at 148 Sherbrooke Drive a sufficient amount of time to qualify as a resident of Montgomery County, it may be useful to compare utility usage for that property from the most recent period that he resided solely in Kettering (zooo) with the time period most relevant to the residency challenge (zoo8). Montgomery County Tie Vote - Husted Residency Page 5 of 5 June 8, 2009 Decision Therefore, I am returning this matter to the Montgomery County Board of Elections for further review and reconsideration. The Board is directed to consider the documents and information provided by Husted and the documents and information provided with this letter. Basedupon its reconsideration, the Board should reach a determination on the question of Husted's residency. Sincerely, Jennifer Brunner &51 R°^s P;O $^Cj i`n5Oft 49$ $-j7flS 7r^wQ$ D7IX€CTOR 9t^Pr,^e P. Nmam^Oa Eet^? S^ Smitli rah ^^^d,,R^OW or-rOnunnec, Tttar^^ yoiiieTadverues for ycer Enclosures June 29, 2009 Board Meetine: Jon Husted Residency The Montgomery County Board of Elections met in session at 10:25 am on Monday, June 29, 2009. The meeting was called to order by Chairman Gregory Gantt. Members in attendance were Thomas J. Ritchie, Dennis Lieberman, and James Nathanson. The following is a transcript of discussion regarding Senator Jon Husted's residency. GG The next item on the agenda is the review of Senator Husted's residency. I thought, maybe for starters, I've got a packet that Secretary Brunner sent us. I went to the last page because I was questioning exactly how do we approach this. On page 5 of her letter to us she says "I am returning this matter to the Montgomery County Board of Elections for further review and reconsideration. The Board is directed to consider the documents and information provided by Husted and the documents and information provided with this letter. Based upon its reconsideration, the Board should reach a determination on the question of Husted's residency." That's kind of the...so we're all clear was the instruction that was sent back to us. JN Why don't you re-make the motion and then we'll have that as the motion to debate. GG To remake? JN I think it would be better to remake the motion. GG Re-make the motion that I originally made, which is motion to vote that Jon Husted is a qualified elector of Montgomery County. JN And I second that motion. GG And then discussion. DL Is that the issue? GG That's on page 1 of her... JN Do you want to make sure that that was the motion? Do we have... BS We do have that. GG Do we have the motion I made? BS Yes. DL I know that's a general statement of it. JN Why don't we see what the actual motion is...I can withdraw my second. DL I think the' issue's a little more narrow than that. JN I think the issue is that we have to vote on the motion that we tied on, DL I agree. JN Do you have our opinion? BS Give me a second. That's your opinion. BS Mr. Lieberman, that was yours. I didn't know if you wanted it or not. JN I think we're about to get it out of the official minutes. BS This is when Jon actually came Robin. I don't think that's when we made the motion. SH It was at a later meeting. DL Much later. SH On February 25a'. Page I of 9 GG We want to be correct, and I thought it was in this packet. BS Do you know who made the motion? GG I did. SH Is a resident of 148. BS Make sure you go to the page before Greg to make sure your initials are next to the paragraph that... SH The official transcript would have that. BS Can you re-play it? We didn't download it in there? SH We transcribed that meeting, so we should have the... GG This one says "Chairman Gantt stated that he is satisfied with Senator Husted's testimony that he is a resident of Kettering. He made a motion that the Board has conducted the investigation and that Senator Husted is a resident of 148 Sherbrooke Avenue." JN The motion is that Senator Husted is a resident of.. GG Montgomery County, living at 148 Sherbrooke Ave. JN I second the motion as provided by the Chairman. GG Is that ok? DL Yes. GG Ok. Discussion. I guess we all got the packet. DL We did. I defer to the Chairman's privilege if he wants to start the discussion. GG Sure. Thank you Dennis. I took...as you all did, I received the Secretary's packet together with all the tabs and all the information from Senator Husted that he submitted in that. I went through this...I didn't want to hand you this memo that I did here today. I went through it kind of line by line on my own and got deeper into the revised code than I originally had intended. But it appeared to me that a least my position in looking a this...there seems to be a battle between two subsections of one section of the revised code...looking at (D) and (G) and what applied and going though some Attomey General opinions and case law and everything, I came to the conclusion that (G) is an exception so that when that is an exception we have Senator Husted's clear testimony that he intends to retum. I gave in my memo the three things that I picked out of Secretary Brunner's...trying to use her words that "It is clear that prior to 2001 Jon Husted was a resident of 148 Sherbrooke." I don't think it's disputed that he has homes both in Montgomery County and Franklin County. And the last piece is why she sent it to us. I think this is a legal question more than a factual question. As instructed by Secretary Brunner ... reviewed everything and taken a second look and still as I read 3503.02 (D) and (G) and the other subsets believe that Senator Husted's testimony is satisfactory. DL So I'm clear on what your advocating here...are you suggesting that there's really no need to look at the facts because (G) is an exception, which...and I read your memo and frankly I can't believe you spent that much time...you did a good job. GG It's wonderful that U.D. provides interns over the summer. DL I knew somebody had to do that for you. GO We do have facts, there are some facts that have been established, but once we get to those when we're getting deep into the section of the code. Page 2 of 9 DL So, as I understand your position clearly...his intent to move back he testified to. Is it your position that we don't have to determine whether there's a fixed habitat to move back to? All we have to do is to determine if (G) applies that's the end of the question because he can move out the area, live with his family in Columbus, as long as he intends some day to move back? GG I believe he still has a physical property and address here. DL I'm not sure if that's necessary under your analysis, but is that necessary? GG I think it's necessary. DL You think it is necessary...not that he has ownership, but he has some place to return to? GG If you have intent to return, you have to have a place to return, which I think is different than some of the things we read on fixed habitation has its own definition. DL Ok. But (G) exempts him from...like if I, who am not an elected office holder were to move to Columbus because I have a job now in Columbus and return occasionally to Dayton, I would not be able to take advantage of (G), only elected office holders or state employees or government employees? GG That's what the statute says. DL Ok. I just wanted to make sure that I was clear on your position. GG Now, with like a college student that maintains their...I think this has bigger implications than just Senator Husted and elected officials. Look a college students that live, let's say keep their residence here and declare that as their residence, but their spending time...I forget what section it is Dennis, where there's a difference between when you're in state and out of state, there's a four year time limit when it's out of state. DL After you retire. GG I'm not going to retire. DL I just wanted to be clear where you were on that. So you think (G) is applicable to state senators as well as congressmen or state employees who leave the state of Ohio? GG Leave the State of Ohio. DL So you think it applies to those who leave the county and go to Columbus, not to just leave the State of Ohio and go to... JN I think it applies to state elected, not just federal. GG Yes. DL Ok. All right. Tom, do you want to... TR I read all of the documents. I think it's pretty clear. JN I just want one slight modification on a technical level for my own mind to what the chairman has said...I do believe that there is evidence that this is a residence that he does return to, and the issue is does he return ...how much does he return? This is not a vacant building that he has not been to, but simply owns since he's begun his career. He does at times come back to, how often is a different issue. I don't think it's just a vacant building to return to. My position on this issue has nothing to do with that issue. The Secretary has clearly stated that she accepts Senator Husted's statement of intent and does not call into question that part. I am not a lawyer and every time I read legal documents I'm thankful for that decision. What I hear is that there may be some split legal opinion on these issues. Honest lawyers can disagree on the interpretation and it's up to adjudicating or other bodies to decide. When that becomes important to me is that as long as the law Page 3 of 9 does not absolutely mandate, as long as no one questions the veracity of the Senator's statement of intent, as long as to some extent that residence is there, my position has been the-same since the beginning...I do not want this Board to put an unnecessary burden through precedent on state legislators and how they have to conduct themselves. Their work is in Columbus, particularly for leadership, their work is in Columbus. It may be nice if the law were changed and made clearer, and I'll address that in a moment. But the bottom line is...it is more important for our legislators to do the work that we elect them to do and then leave it up to the voters to decided whether or not their ties back to the community is sufficient, as long as it's not blatantly opposed to statute. I just don't want to be in a position of putting precedent out in front there that may begin to impact not only how legislators conduct themselves in this manner, but allow it to become campaign issues for other legislators or in other situations. We have always in this Board behaved in a way to give maximum flexibility on the ballot and maximum flexibility to our candidates ... I view this as an extension to that, and therefore more on the desire to avoid harmful precedents more than anything else I will be emphatically supporting the Chairman's motion. DL I've reviewed your memo, Greg. It has some things in it which we hadn't considered before, even though Vic had written a memo about (G) and said that (G) was not applicable to this situation. So I read your memo and your citations to the attorney general opinions because it concerned me that perhaps we missed something. The problem with the attorney general opinions is that one is dated 1939 and the other is dated 1962 and it involves a different statute. The statute was amended so that...the statute used to say that if you removed yourself from the county and you were a state employee, that you could move back. The statute was changed and it now reads "if a person removes from the state to engage in the services of the United States government, the person shall not be considered to have lost a person's residence in this state during the period of such service. And likewise, should the person enter the employment of the state, the place where such a person resided at the time of the person's removal shall be considered to be the person's place of residence." That's the new statute, which was considered by Vic and Vic gave us some case law. I looked at the case law that he gave us and I don't think it's applicable to this situation, because what I think it's referring to is whether you are employed by the state or the federal government, if you leave this state for that employment, that you're still considered to be a resident of where you were removed. I don't think (G) is applicable. If it is, I would vote with you on this issue. But, I don't think it is. Therefore, I think we have to do what we've been asked to do by the Secretary of State, which was to review the packet of information that she gave...to determine if there is a fixed habitat according to such section (A) of the Revised Code. So I did, and you will note from the unprofessional way this is done...it was done by me as opposed to a clerk, but I graphed the usage here for electric to determine what usage was in 2000 to 2008, in an effort to try to determine whether or not there is a fixed habitat, which is what I think we have to do in accordance to the law and in accordance with what was provided by the Secretary of State. You'll note that on this graph there is a huge disparity between his usage in 2000, which was the year that he was found to be living here in the residence in Kettering, and his usage in 2008. Unfortunately, for 2007, Page 4 of 9 although we have some figures, we don't have all the figures for that year, so I didn't want to distort it by including that year completely. 2008 usage was 23 percent of the year 2000, which I think is exceptionally low for usage for electricity. I also did it for water, but I did a different graph this time, because I was running out of time. On this graph the water usage, which I think is particularly pertinent as far as the common usage if you have a fixed habitat, which is what I think is up to us to determine. If you look at the water usage, year 2000 was 43, the year 2008 was 15 and he had a period of time where he had no water usage at all for approximately four months...there was no water usage at all in 2008. The 2008 water usage was 34 percent of the 2000 water usage. GG When you say 34 percent, what do you mean by that? DL I mean it was...the reverse of that would be that he used 66 percent less water in 2008 than he did in 2000. For electricity, the figure would be 77 percent less electricity in 2008 than 2000. JN More charts? DL No, that's all I have. GG Can I ask you a couple of questions? DL I'm not done yet. JN Go. DL Then I applied this to the Ohio Revised Code. I think according to the case law, the 6`h Circuit case that we looked at, I don't think there's an irrebuttable presumption that if the family lives in Franklin County that means that his residence or fixed habitat is in Franklin County, but I do believe that it is a rebuttable presumption that if he lives in.... if it's established that his family resides in Franklin County that it's a rebuttable presumption that that's where his residence is for the purposes of this statute. At least that's what I think the 6tt' Circuit case said. I then looked to determine whether he has rebutted this presumption. I looked at the graphs that I gave you. I looked at the fact that he applied for a tax exemption in Columbus. I looked for the fact that while he is the trustee in 2006/2007 he actually transferred ownership of his home here in Montgomery County to a trust, in which he's a trustee. I don't know the terms of that trust. I asked for, but we never got that. It may or may not be relevant. The fact is that it is in a trust, so he doesn't actually own that property himself anymore, he is a trustee of that property. I also looked at the mail that comes to his house. He gave us a whole lot of mail that comes to his house, and I think that was a positive in my analysis for him. However, the negative was that he did have instructions to the post office to forward some mail to the Speaker of the House address in Columbus. That would have been a negative, in my analysis. There were two changes of address to Columbus on that regard. I don't know particularly what was changed, whether they were important documents or things he didn't consider important. The things he did give us to look at...I reviewed everything he gave us to look at...it demonstrates that he does get mail at that residence. They appear to be magazines and that kind of thing. I looked at the testimony that he gave us. I reviewed all of the evidence that we had before us and I can only come to the conclusion that he does not have a fixed habitat in Montgomery County. Now, if you want to ask me any questions. JN Just a couple questions. 1 want to make sure that I understand your charts. Page 5 of 9 DL Ok. JN In 2000, which is your baseline... DL That'-s the year that the Secretary of State found that he was a full time resident. JN So, he was a full time resident in 2000? DL That's what she found. JN 2007, 2008 he was a legislator? DL I believe that's correct, according to his testimony. JN Ok. If you look for example at February of 2008...this doesn't actually affect my...my basis for my position is different, but I still want to address your charts. He was a full time resident in February of 2000... DL Right. JN and water usage, I assume this is was cubic....water units was 10. In 2008, when you believe he wasn't a resident, his was water usage was 13. DL Correct. JN He used more water when he wasn't a resident than when he was a resident. DL Correct. JN Secondly... DL For that one month. JN I'm not good at math, but let's assume you say 34 percent on water, and the reason I think water is important is because electricity you have that going for certain purposed anyway, water is a little bit different. DL Right. JN Let's assume this 34 percent is correct. What's 34 percent of seven? SH 2.13, two and one third. DL How did you do that? BS He's a mathematician, but you guys told him we couldn't call him that. JN So that would mean that given the usage that instead of being there seven days a week, he's probably there two days a week. DL I don't know if you... JN I don't know either, but my point is...it's not as if the usage is zero. The usage for one month was even higher, whether or not what is the viable level is a subjective point. Again, this doesn't affect my vote, but even your nambers suggest he has to be there some significant amount of time to at least use a third of the amount of water. I really think we can go back and forth on this. I think again, honest people can disagree on how...what is fixed habitat. Honest people can disagree on Section (G). I believe in the end this is an area we as a Board should not go for its impact on other legislators. I reiterate my position in support of the Chairman's motion. DL If I can only clarify for a minute what you're saying Jim, I understand your bottom line. Your math might be a little skewed. JN It's not my math, it's my Director's math. SH Thanks, Jim. DL All he did was give you the dividend you wanted. There were four months where there was zero water usage, that means he didn't even flush the toilet. Now, he can either hold it a long time or he wasn't there. Let's be real about some of this stuff. Page 6 of 9 JN Certain times he wasn't there, yes. But that's not all over the course of the eight years. DL No. I'm not saying that he wasn't there over the course of the eight years. Our job is to consider fixed habitat. In order to determine fixed habitat, we have to...as far as I know the law says we have to look at all this stuff. That's why I looked at it. I accept your bottom line. Let me tell you this for the record and so you understand...if two things were to happen independent of each other, not necessarily in conjunction with each other, I, in the future would be willing to take your position. I sympathize with elected office holders, I really do. One would be...change the law. You know, they've changed it before. All they have to do is change it again so that they're exempt, clearly exempt from this provision...and that they're not to be considered like everybody else in the county. JN I wish they actually would change the law, but we both know that changing that kind of law creates a little bit of a political risk...voters would react to it. My view is...if I'm going to see political courage on the part of my legislators, hopefully I'm going to see it on the budget and not this. Yes, it would obviously be better if the law were changed ... our lives would be easier, but I can understand the political risks, and as I said...there are other areas I wish there to be political courage more important than this. In the end, the other reason for the view that I'm taking is that in the end it is up to the voters to decide if that official is or is not appropriately attuned to their needs...if they feel he is an absentee official and that is harmful...in the end the ballot box is the corrective tool, and that is a more affective tool, a more appropriate tool than a vote on this Board. TR Just let me say, I certainly disagree with some of your comments. First of all, I don't think we can turn a blind eye to what we have an obligation to make a decision on here. The courage of a legislative body is to act on everything, not just on picking and choosing whether it's a budget, or it's modification of the residency requirement. We can banter this about all day, but I think we have an obligation to make the decision here, as a Board and let other folks follow... JN Tom, we're in complete agreement on that...we have to decide. TR If I could...I'm not going to play around all afternoon with this thing. I just think that in my opinion...there's not a clear residence in my mind with Mr. Husted being there. I think water, electric, too many other things, statements, bank records, children in school. I've seen employees discharged over my 32 years of public service for a hell of a lot less than what I'm looking at here. I said that in previous hearings that some of you folks might have a lot more experience on other things, but representing public employees on violation of residency has been something that I have had to do for a lot of years. I know that if I were sitting in a hearing with a public official, that this employee would have been discharged at the close of that hearing when we had it. I'm not persuaded by the evidence that's here today. Whether that person is a green person...in my opinion, there's clearly not a residence that I'm comfortable with. I can not support, as much as I would like to, Mr. Gantt's position or Jim's either. I think that we're going to have to let other folks help us make this decision because I'm not comfortable with the motion. JN I'm prepared to move the question if everyone's... GG One quick comment...I respect what you guys said, the one thing... DL You know, I never did get to finish my second point. Page 7 of 9 TR Sorry. GG The one thing that I take great acception with Dennis, and I said this last time what we talked about the trust...in my private practice I do estate-planning work and I create_trusts for people all the time, and they are there own trustees and they do not loose their right to vote. I think that's just a side issue from all this that we have...we have four inches and gaining of materials and we've not...we've looked at this and we've done our job. But, that trust part of it that we've talked about before, that's a whole another can of worms and someone... DL Can I interrupt you for just a second...that was not a determining factor for me. GG I understand. DL It was just one. GG You mentioned it again, and in my opinion, we can disagree on some of this stuff, but that...you take out there because it affects so many people in so many places that they do that for estate planning purposes. We would have a mass of list of people to go through and determine whether or not they still own their homes and in the trust, you are your own trustee, you're just re-titling that for estate planning purposes. Second point? DL My second point. As I said, they're independent of each other. If the circumstances change in the future and he establishes a fixed residence in Kettering, then I would have no problems at that time in agreeing with your motion. But right now, the motion is couched in terms of the affirmative, that means we would have to find that he is a resident in Kettering, Ohio. I can't agree with that. I don't think we have sufficient evidence that he is a resident. JN There's more that we could say, but I think we're ready to vote unless... GG Call the question. JN I move the question. GG Roll call vote. Member Nathanson? JN Yes DL Do you have to do a roll call first? We haven't tied yet. GG Ok. DL I think we have to tie first. GG All in favor? GG Aye. JN Aye. GG All opposed? DL Opposed. TR Opposed. GG Does that count as the first round? DL Now, we have to do roll call three times. GG Member Lieberman? DL No. GG Member Nathanson? JN Yes. GG Member Ritchie: TR No. Page 8 of 9 GG The Chairman votes yes. GG Member Ritchie? TR No. GG Member Lieberman? DL No. GG Member Nathanson? JN Yes. GG The Chairman votes yes. GG Member Ritchie? TR No. GG Member Lieberman? DL No. GG Member Nathanson? JN Yes. GG The Chairman votes yes. SH We'll need your position papers for this second tie vote within 14 days so we can submit it to the Secretary's office. 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Ifdhid-t^r bi adier Sirl;hat theFr we" seikoim ^age^Mr^an "thssamn`lii o$'. 804 *Sr bt+t in"FAd to 7atumt to Ow city 1vh^ Rti^ ft^OtYi v5C elfare ot ttm 66er'chiklr^n whwtd petr^. 347 [A`. Rllk tsas bvrnht 136 €ar Hlb Averaue. Hts tr3athOF isa^Iivd$ttiM $It ,ro€Ilre, Qurin^->^ndaAt^^?e^r^ ^ Iniem5hlp ana^ sfttPIqyliiaryt e[ ^atiqus h1^piCiN fip nt^ver Ifu^i ^nilff ek^nY a[tepiaaa. Whila qe1f^tettaid^ hls,tvHar and chlKrlran Itued. at 136 f4MIs RYanuttand he alwayra returced thera aftr fils s*uPrt^ elwVhdri. YVEean OP. CJ11tO "dY dhed hdrpurthased tris rncth^l`# TriWeskFn tha Far Hflls.A?renue bclttse a^l lt-sc4rk*nES (I[ hehog 1'ulky fthmmitlw, i^o 0=4tng the sole a.wner, ahl'slma. tttbt time h$ h®a cared ^it his Cndttw ^ bnd ieott^d a^ the *perqt.and-l3kE6de7J fe fts rr1an^oftme-nt and upketR. Abwt 19t2 4 194q or. [iita purcha4ecl a hcuse et 224+Nent OpmnAvOnk In the ®ty.of 00wodd:and I* -arid his 4vite ar4 rtllwcen ewW iFnm 330 Pw Hgts Avmtue tb 114 4+^& Dixtin a+ pnwe„ whgr4 tm?y s+Anwed to kve wd May or ]uiM ^vf l+^53 At tW O fle, In arffik}k^n a *4a91Ere hauae a,t 3Z4 Weai Dizfln Avtnue they IrRW i^ ct chetr 6arnbM td 1.^6 Far Hft Rvmue,, pati tu 30 Wea Flrs€ fteK In tho oty of oey6an,.SafNp„ wtlsm.q r,` p^ r^rr^ cn a rrv4.'iotl to dv2,ru4 3;^^ttriv stripli,^s ilt^t a per3ou•evt;3i ywxxarcd' t3190OII *^y res:it[e n=aWkie bYiCo fai ^?e^ $zu fe2irv4" 053T1,T LLlS kx ^16r 1^.'E1I^C,IICC;; ;ustM lxs.s dn:..-. ra itt xetfeyu;a Lot;t-, i;•,.p "snld 1-s 1* 1^ e' Yvs^4eazc^ sta iia uTiiat ®trtii3 .1-r vr ; ^liatii^"rf^t ttf°3303„O^f L t E WGS' Vt E rsan'r lslatp^C r€ ljntt 351,,,KiCi}: t^ A, V=-muea additio} i;- ^^i»etT th^ stx^^s rass veg3¢b .Es`gMulti; i >'_^ ^ii^a.:ut3 pes*i[m p^ I to A4r Tiu9tWs }.Ee"pn fft,1'Ctt3.j-t! tii;'t ^;Si€]t St^fe^ 6Y"ta!-.. . !n^;g^^ #a b^ ^^^ thr v: c1n..am^se tn^^ ^i[P sst b4 v1'at^i,^ L6,*2 x6tstrt^d 6y ccML-ar,s' •i`a f^:^:th^t'u^rr+ fls:: t.*k11ti^W. „VzJua aW ss:msrC €ompirXN :nHn r..n c twa, th& same:ntio fi^ ba appiied [r fi&,: ^4; ^kt^nn:nxi ^Ia w L)ex sltstffid bi^ i oasz `rkwle# vld ttd:•i t^ei^ cmnfl c1 i i ^is^u tb^ac ¢ss;t^u rx lv dete^tnl^,^ ^ i^c3i pQraa^sitta ie mar^ ^ wtitG V rit^itla^ Kpcagyl^ v=hoaw. M 0ta®tiita6,6v& ov oft^,e potcKtai^ .vFptaErRF4?Oit 4f,3,MT'; i; 4a w`.r'M1r, 1(I.,^)FDSYy' WfiYmll(!I PaIU.eC?7iia1 the okc,G•-'F I'f^ unEStu^i ke^atuzPnt pt`^eusied end unm^ied ^eapl^,ut.g'^i^lEc,stm^S^^ ehat ^s G^s^^^^,^ i u chu nppr raets ean 4ie argu^d`.tio be ^a ia€^ust rtS^t ^^^ ^^ati^^ I a^t^ ^Q z^s^m cr qw*roa^ ,n^q.^ttv^: €is vi^1e^ ti* Q.gz. 0:49^1^, rn ^tf^, ^ n, i t I,w,.;r thAt utwee Ybis a"®eh the duejrtDw*sfi^rt:s atTTB^i p^ra^: ^3 p^t^^t^ a} tLw I i r Amitndenmnt to tfae LI,S: Cansiakt^ti^an.,"+v^a.ul^l .^e:vio3qt^, l^aau^ ^ti tl^se ©€oblt'^; tu^^ gi ;^` the fe^r=t nlze.e a^03_t^^(lNfa 6 npt euen otven sx6 :rn^Tal+Ic i13a1 t:vi¢ iuierpeemtjeiav€tiyd iacNdvpted 6y`^V ^itirt if ^5(]3.4 g11 ppppns iLi gov â fYSufJ.'.Tlk^,d md . 13f1if11 6Cffi!E ►n { F^t tt^ t74^'^'kk^: i^ctr^,t3l f^r of I FoUtrwlng. tkte a ^ a3[}^^fY^Ac)^:tsd 3599 4^,20).' g^[^l^qn^ ts*ith^?^+1^'^t^ ^ ^pp^^eat^ean Grarit^ ^'i,i^i`eAt W 15- 0(t:'t) 0 F.ur cr^ccr^ipfis^. ttiis: r^, ^4 SL^aii -^ a6=6s•°1 ir^ is% n^Y ^^^3 b^^• 'I^ ^rc?^c^c ^^°' ^4^r io fa^ tiii it sntt^u.ti^;' e cs, ^^ 'I`iiott 19::M ^ttgd M.flxD.J ndBn dites t`emi}y ofausa i-ssi&d..:ahalt be ur`^§ ix:'^i• Aoeiressed th^ ^pplic^.lu+n ^ ^54^^;4^#^a) ^} ^k i^ possLF^Ia rezx[44szve uu^ar#t^ c^.ti9® stutpqey ^^^u1 bpigai+^^ i^ ^izvor $f aii Nci^iE:sa : Idovevet„ tltis i5nsit?Q*p ^40m m4tab1e :3i3Bd u^titatees, First, it rtil*s 3 iC n[ f^ ';, -: An3^ pcccrpp:4rrd ^ttt cti^y Tes^uire^ r^] geopl^ in gok "am^a^A ^t^ii^ Wha gim re]ocalcd i w;U t;. eJ wtg in order 10 ,m4o stl.'b thAt Ghmy tetam ttYe^r *widwc} itou.g= 3L: e.t6.]l 3: ^;,:^".^{ii; ktit!?alrf f^i^^ ^YC^^hks g^^f^ ^^waL^s zrtiua ^mu^iiirig de^ti'^tgly w^ ra^la ^n,l ^t:'srf nc t uffsidl tb^ rvAy&-tw^ Mni's. If 35133;02(0) is kiveo eft --t as in{ei^td by the At-imrrv• ^en r^ opini a isulslio sEtvav,#o= )MW tg7g oriiy En trVent,smtement or seticin thai tli 5ni"•h^^. 7 nPr resitlmce e.an bc liold againsG him car Fser, i cti m cauvl'wmys lac secm^id-pftsgd, e,n^v, `sf3S^3.^2L^ 3SG3.Qa "s F -Fr 1 i e^TF^^ a^ ^eat,^^ nWtc^ *,plg in -lG F':a PuM 'Dublac ic^ k,-'ttriG^tQe(amd ha bQ at*# f`a^m llaetr ^n :i', all"Ou.* eleaa"J sryl5 ^fFiC ^LY'I$I1C S^#1$'^$ ftk^fSC^tq.H^.}''^O;tfJ^¢^f^ ^€7C'L^Y'^tF'^, : niovehisiw-,' mwat'^ t^ ta^atabon '^fs ^ q -+g Gi Itb' iutmti'on t M2E Pf3"l y'0,T1No A;S1?zNLZ--WHRRX F=39N REMOt E[a T, Dii>. tzct tslr GSwA{nk (A otkm & 7v-^ -^T^tB?^'P,kN'^khL S`ra'k^^-STA1^. W;;it;Y+Aanr q _ ^PCYP.C+^-^tti-- v[7C8 E :7 r ,y: ^^^ Cyrap+-G kki^t .t^ k7i d jIddeea o#2W** k t A^er3r^g to im^Iefusr ^e yitn c;*raif Ns g r^r]ee r^ ^^t ti# ^y`itadt by+ aTipI3r a 3n ih $bY433M7i e (aaHE hP# ee5loq^'143 , ^r 84d ^IR j3.^II^3S^VF[{^}^ ; ^^MWBRA4 ar rP4Voi-lluee9F ta r 1^a0 q Th5.:¢itW([{u4 :P^ ^r R'^, ":^ rg^4evad ta tk; "^ 'CN SCTg,l1+^ i^C^! ^NPI L^iE. ir, r^. ki'{^ ^DE Yw9^1i1}7^ i+^9; ssakft3 ehm^ W U f^i31R1k ^S^n.^'r-..,,:^^ 4'.'.S^A 3S^k"r}fW ]}^s8qe WbCYe 4lMli j^'#XG3r ^&e^lpt^ at t6c vE r^+ ra^ 5i} ^dtlv^? NF:sit ba cvcts^drsq^ spd ^taTt( tv1t^+ j^1gCv [Ft rr,?.3[{. . ; 3.'qe CCeM 'fl:^e1?x]nary nu-taosaa aq.t^:9e t^1C8 ^ettCti. $^s,5:r y,ep OmLome6- eii *rmii a giorTa{t- cd a7ao®tiaae;ubt 64 ^aciaCSbtJE :Sr-s ym A r.adPAjr ut..$utagraqhg ef thd alsere PC^ lpqScCF d# LLt!pxmoa¢- ix,¢:y, tlvar tla^ r^3iciwnctn tblc zta@e ot a pmi5d arigngt4 i+i 39kt ^ara 137ar,t :Eyv^s rs:qd^t (b3i.ditt774^ FhE ^P7G^1 nt seSY6%$+'.9'7{'}^^ . -. .- ^`.... . ?r u^'dHC tt'.dptmexNiiw;: tii^aGf}ytlr ^ar eiat a^ssa7i pet^'Pri b;+a Leii#^i,tFs rsaE.. slanaa ir abi9. odut[ tr^a coflE4rlyCtJ saj7seu^+q cjt43¢f;2Drty^^'^^t^f ^,S i^.F^9mp (,rmr, khe ^,r3uertulCeri.^aer.4G3t; r^tFtlrr^ca.ak.t9uid11^':S^ab^[^8p^[iYgErr^6ra.^ an,i J_ r rii'a nkstvc fi^^er.: ^; ^aweilrig rricrs^[' et^a^iy Ga^i^tn tlree tha . m:suFer fFkrg:X^-2^az*r+d? l..ieS:tCy u^5qit k'^e i^t„+^th. of ^tTi^4 thbt.9c^F. pet^qtY flt ca[..aa.Y'r11; ,ou.rccp1qvi^P. neC ^v1 i^ r+.^ura'kp Qhld„ hia ivgtf^pcy.^^d ^c s,' " d^s t^sp arad of t^^^ ^ttrd^ cve9a aha2 ^v»13,y J :. k yenbd tr€ ^tpt^ #jr+f 4ti ^^c^x r C+^ $so6t 6Lt ^v^ ^$d `^^ {ia €lar01,'r^] ^ • r r^i^• : ^i:^lfi^!? {ziv^ i.: ^.-^: arc t "!^-'I'ik^^. ?N..trlrr. i9*4601W to f3te k 2h4 tmtnm 010,70aaboec a^ 3h^ plack,rk s :eq,l i'u io$ r s;iCT.- Rv+:#g. itt :'; use ptsica I Y§lE^^ l^I7itMyIX} t®'^t1tCf aR^F 7^G'{Mj^^^,8e e7S9€I ^: [ioM^'Ic„ ^ (r*m wuth Iis eccrd^ved<^c^^ , kstaq ^€ +zra , ,r:: lils. in^tizn ib aEturs i.ti^c, fi9w+:v:r, 7' a?w^^ M r, ipd;:i'rs.^+^a9°Cf tltirac:.tllf: ^fL^^il] 3t^.#s Ica^.[,iiir.-^^ ;^ e^'`fii3m "wh^'rh he rar^ove3 itaupe4sEk,. ,1Qlt^^kl^fl^ ^x:^+I>,,:r« 06,40 coWaw, ^ils^;::^ p^aj^ Qh4 f+tSe53v' 161, R t^ ^• '^,..^15^4' :C' A^9774'^ :•i .' -z',nl[Ywlt ^l4as3ii,ryai^aalt "P't perrv bain . is,T t. aees€svsG''<* 31^'-1 azt t ^n1 ^It@^^€ u.,Xttl ^591^+µ;".-W tivqA So`^t',S?#IN^ .^,,'^Oyiy^;^1. .. ]^'4^ff ni y1R•.Gr^^f^ktill EGYa G ^tlC(11 L'j^S: $t^al^^'. rr:ja97lx '1J mricerl'LlS.wb ::au6cp 85t1[kAl: 3r pst^tt!!i!e y"e s U:s cI lte Odi"acCk "4 m^W¢ .-^ ^tja R:-a1+6-1i.er^stc-as^a smn5o® tiio4'. s:,m'q ;ii'EFi th+EaS I:+^^d7Et. -:T"9:-S$s6 i c, ry ^y^-a,' isr rxikFC sic`#ach. easd[j^tlr^ y^d 4c^ttSiSii^ '^Atii11^5 GR7o:i+4c0754 "PpWCfS [D[^SGt ^IS:^^ ^ o'$cVe!3411+^.'- -.. . .. !t C91Lpq V°dBtl}l CQ' CxCsLlk1vC q;^t,. 9f Ci115LY^' ,Wtia^ C^1RN6'F^1'^^+]LLti ^3"s'0 r,a'- t:^ -;..:.! M02, F,nsd4res3 Cadq whtekt kaadg 0 ia}itm^ 4^ =l^seutlricd ^^Galttvil{f^"i+^ss tt^t4e^s e¢ ^ ^naht, : E : x a A6e37ap44= vtoei ad#tte {^bers.V eEa gt,it Lf ;.f 4@w^s$ grevi'de^ ^ sCet^m 9S^ D5 pt: r,#^t ^tv ^r s '^k,^il' ^tln'ets§1 ^}tM1t.° he F^'^! . ug^`tRe raf1o+ Ari fbr ptr *Q4 ^^t1*k^;L^zt17^dFVO^qter=eft^tW:e c-. f36 t^wd^Abw#^ r^ m^$ wsarovf^ eqsr e ^3tn^ P,tsr tn r? . e,{s :a7 iPj' ^ti+sriuFC3r+^ r:si^qWC^ b¢ a di3xsm tQx [h ! r.,: =: £oeilx en 46s["Oo. & t3^144 I.':1T,. w^, 1u ^eteJ ^a £sntl^ws e S^kt&YB.dOE^, Jul$gs't C£ t1^CC54^} !r ^tffel'7'?, p'I,s ^&^1^t aHerSCg-4a ^'>riC vu^c snalY h^ ^ .._:', x ^:tsP€> ' hk^I seE Jlar, t, i y thm. tt }. 1ulJ Y,xll YIIkaSab^ nd#i- 3TA J+i¢r'a. ike'6inki 3et;ijnios^uflrv1" .pta73k-hfi^- NnO4 wN^, cie ha.lr^, x^cirYdd`-a4em:^ t: ;•r aF Prnpr,iy qapMeahi5p =Eiw ^.i a ett.7s7^. ^ w I ltr^¢intey ^ e A70le[ lo #a ihk;a P,t^^.r^:` FrECI; ^qu.4t^Ly.1'^ {'S.LtE '!e'1,L"FG; 4fY. ^^1,45 ^di 3, .!.! :6.n-cr$ Fnfi x'^*.,^d t^5^ *t'Gt5C_tjt B"^C'17CGlG LWf4i S3KeF^c Y`^lYyllks,;^'+ $ $^jl4(f^^ ^7'^+. +l^E''^ .na>wt it« d^ufd6+^: ia b; r^Se,t^d pp nCR_tdi 2l9.t^^l''IICA.]l[Ly trt-[} f r^^ ^t` ^1+]25^^tYF3 '^d^eG. $'GF^4^y!. pt3t^ CU-' p:rVd(IEt^(t ^$ 5^^1i ^A^ ^ 3^P9•N1 ! `°I':G 0{I}^'CS:tl6^ 'hs^ rrra;-41 sd . ... :If; r••:a s ° 1zk cl:: ^;['raxst. p :1 r t4dait i ar ct t,^ - ^^;n^.+ xnt eia4h a^.a&^k, .s6tett^S,u `^ rtr . €_$^: ! i'or Gua^atG^'me ^uS^ic,oi^esl^t.kd 9^t%'SCa^^"^i^sq^"ekj+. t c:..I i:^cttt;s^; C^tst^y ati^Ey fi7t^f;^LtC4yts t3§si'ed1,E, t`.^r ^8t#^1 + •^^ 2t teK L`7^k"r1^J.^ ISY 14PY^gk fiif{!kQ d^:t^'bIG ^;haA,E dftiM ibwjs.Co 76c a;x ._n nnu ^mi1^ ^t^a^suSt^^ pr,s^^ 5 ki^ p01f^ 4t1^ ta ;r^ptee6 EcaeEy, `nie pa.^' ttmi '.-urt P,artjL^ 2; n. „e::}il; 4faf: t.^ dilt:^?.^ t•:r ^ :.'.:id-^7rs ^'^'r`'`,.e^i G,7;7ulrtcL P.' tncsyt^-r. ^-wur Ju1; 1.O; 2409 !^TtlB-74-a^sei: i ^f pro^iai^. ic^ at ^e_e^ r 'bow^f 4 Ixol?e !bi En y^tur tifftcqvIc represprat a mtscamage or FmFer "procedure^^ ^iul ikest►iamitWd to 6is 0001 ^^aznr titr^^ir^.^^^r^y c^t^frod=^Fsat bec^^e z^F: b 4#cs as a stafia leswiltor* ot spmd a11 af his famo iu m,*gaam^ Clo"bk ]He, retOmthem as oftm us ^Ws "es in i e s9rrice allpW, NcFffiiQ liaslsdtn piti^rlu^^ #G L^^' ^,St's^iain^s^t. Leimr Fo, SeenCazvog$tm firmner I-FumA Rasidcnc} Iafiwe 7u[yo; *9. Pq2C2,Gpf 2 sxrnt€ary, aR criF t4sa eviderave.pzovidet! o€t1v s lanard meet utility xbDar& ihat vou subeititteti to the H1•15tddf8 Ltwity d bfI& hit .catff^ state SCIYiLg, ^e- hw cOp.tmilEd to ^BiXi a PTSOW tn ft A ^e ^ .1atA&Swtor of pres &6%vd that the 8ca►^tar ^it- on aucatge, %t dqsa iodfiu^, bo b S& ca h4 tbe4 yszur AW For ^v^ Q^^suqi' ^t^i^^y^a ►t^t^ i^d 1Y^ve t^epn iiurrar;^ia i^ra^i^^bix ^ed f'crWus. .I4*4904. ^1i ^ tFio i'sisteatt wfEh }rhtF I with'A t1drilktli$t 5ciljgq3' RoWd t a wpy ot y,nttr 401 vse m-Qeat4y. d%sur e 1iige-. You t[a etii q M04tg#mvr3 COui^Y, Itespeetfuliy submittcc], :'^App;.OTt, 3itmber titipili,e`rY C[?uti^ l^ttaff! nf EleeEio^ C,acaA Page I. nf4 LETW€3F- @r1#tC4'TI[1N. L1F i ip, $ • Tidtr" far r4nr2sid^s:° ^^n 333^.8i+,1^Vt^t]'G slfe" end ^feswtree ersriAr^, dtimilesi eka g^+tiirje tawt rnay have m®rg tfian orr e,leg Inar IOCW sdiW dl'MtM taha IsphF^alty° pea t pares Qfiggim wl^ i" Mwin^rcrr4ecactl^^ ^ s^ ^ddq, 2S,t^c C7acide ARPEP^: ^^o ^lr,^anss^s.:et; aa r.~^W.aft1^Md W 345 1954 a}td k9541^53 ^1 k^tlP 0^I6MiN sdwuld be rs ^s^ 7#ie evrd^ In"m^ mt tus trscJl a^hcpl r^#T^enEJiNng at i^fsl^r'^ilsPVanu^ tn ^tii^" fx)[tCalsdhTaf,rMStriCEdaail6e rifi6.bGaa:admrre51do#3betwon-a% **^.^Choat r^fderts saaal! l^ ai1 ^3eit^ ^vli^i ar^'ctu^ck^n at av^il^`i^ 'aaskleiiks hf ^I re^f^onGe ^alf Eâ^ 5^ s^hhr^cal lri wirkh a^iif r^derit.JS ^(^littgd ta.a^nd b; e^r or ^ scttgal ^hJ^k may adaitt i^Tt^r =ns to t"pubttc {7^txed(M5 tvi€lnn thQ 1ihY4t84n c# O*qmdq Rlgn tWard thd cW vurtEwut nj,ry. The jsii3gq alki rrot d'ctarrttitse vONOfel" dao 09Fef0anhwes rbimat a4€ #he t)akkvoad CIty Sdsq! msui(;t 7ie did tlrid, 4ax9 h-41nonds aR=stippnrW, bXr#te aufdknbe, that. Ca?W ortle eftred the Oatfwo)d City FG^h *Coi Rar the sthcsot jWr 140-1954 and OW#*l^r addr^^+t i^'Far "ills Alo*6U6; ihat,trs9tfiTq that Yoar g+ieifttiFf d0prtnrn4,d thetahe wr.3t o Mnteshpene NpU luf>:,ti^iltlrEaa^d ffe# In ^ra4J?^thout cdliet^lrtg ['klltln^`fffh7fr the defanstant; t#^dt plalntirl'ai1^T11tt6d fiek fp'r tlsE Skk^ling yeiC'`4Md^3 ot7^Ioh¢ t(rltb0n^r 7113J200$ - iTrH -£'.aae T-aw - 5earrch -Ri=le Fage 2 of 4 tultlon frdm TfiG CGuttOtCanlnio{b PAM herd t.hat wadar the prav^Tsacg^^rf 3^7A7fs, Edevi906 Code, plhitakrff had made aok ereeMrlanra xheNOY i^a1P tTae aGena^ ^tr,s uf ^r c611^ ^a ^In^'.w,as^lao^kal# ^ncfa^,r^" ^ne ^dwe 4901 r^u{^ PtaWr^ fraYn *kh MtuS, Upon kfiik No. the Oo4rt 1i* that the petinori [Mw taState atau:a +aPikwn. haqs ftEsgnoe.aT' :i trill el asico'Merm 4",(1Sti1d ti954rhvriyO-.Vte Oall-^lrst'.CGnsldar whtlt& mom P^9^1b43C' t5E` ^0:`l^' 3^1CY+'C4^^ '^'1 SS^149^ ^'?IS^t'I{^ tJUkl^. [hew.ENY!'yearr deia^n^S lisring aer0k^gamsn^% ls ^r!,'bY:th^ ^i^rri^3nt a esr^rrsc^s^rie-t^rr^;rt^ta Ry k1 qW_WpOn .Orsi D* ^d kWAetlaO alang granslrtWaerlartaen[^s ^ratt^er, F^k t^Ins J{v^kp^, ^I^lk;p^,p^P2f!';fiG ^mkk^kf16^1^311^n^tl:Prpbat tlifri^r dMd^ ^Y ^r ^ r^n^^®^r^by upon tt?4 qkar ^a'r^r^qrs^r;^°^ k.s^^tt ^.^I.v^^ nrght^:;^3^t7'!N^t►2R^;t^t A+^p^ib;^r' 6. Ifvwag n:v}tlmlh ^n^n^ }^ a# i^& lat ^IlsAvent^ at le^st ©ncrr^eeh da^, trkque^kgr ^It ^uadi^ aa^5pru,^^tidAg ^ Ewq^r Pa^4 tas qud^itiVr t^¢ ^ r^q41^ :fi,>a^ e^^ ^i ^r^ ^4r+^Yit1^ >^r^ 1^^^ ^na or twa me^ts a^era Ph^,Y^q^t ^iihd a+r^ F^llf^says#^fddrF^^deh^ot^rfe^c5c^rtii^hi^#^m ^niPeirinar^^fhistltneEf^ heAOTngdan%Auenue addresst whleh•W.Oe onls%ierE 1n1^ eC^rn6^+, ^sa °^f[e. $IiQ^ tlld i^t er^^sl tiehk^ ^ E^re rQdsxlr^l, Bea;; ^¢rt^ta^ ^t h^o ^ra^ta^n^ F^nw^; >€r1d'^^sr ^ Im^kfer ^Sr^Uae^ ^ Serdairi ^mrBn tl Gr> and Mm DWas®id dagy€Bd. nStftpbd1p st?'! PaMoontt w11or- Um ^ lnc'a6 r^B1^^kngas! ch^ end tltak oE the grindkilc ^ 347 M. QII4d Was bGNP:dW6 i'ar Fi14Aveksua. Nit tr3^fh^ hasrii^ tN^^,^11 €^urrk,^'r^fahdaiitY f^ra Vi IriGeltr€hl^ and.adilpJayn7 tnt at 4artqu^ Y^sPiCdrs I^ ryowee Ir+^ ^3G^nilyr at'aiiy One 0ra^,l4hile'te Irtiternad, hisr!vJfr*ndchlydren Ilgld: ar'I:4^ 04iP:ElrrtS A tenUa^:^A3f h0 dlways rokun*tfthefe afbe. hls e)burvi's elseivhar+e, WEaen Dr.131116'5 fetheY dfadTi6 purcT^awd his mother; rltkeF^Sti^n the Nv Hi^s Avenue hau^ It5 €atrt^en^ {ie heT^ fuiry furnr^jt thtt9^L'Samirg the *ole ovmet; aild 5rifee CC18ft trh'tb W h aS eared tor hK mdEFw t 86tt kifort ad aN4cr #he propekty and dttEended Bts ICs.rrtarr^geti^nt end upke^p -kWut Y"R ifr 1943 (ir. qift R.urdw-mW a hglm°et 224'4V'ett rNa[(#t AYerNOe In t176 Oiq 4P OdcYld*^&;utd Tir3and arkp cr1Wr*1 kXNW kram 13fa riq` klals AVMue rOZZ4 wese ucuittAvelt!+1N waore 4wf 4mmaesa co ®s!e. upw may ar 1+353. Ar #tO^tr ia, irt aPiOdpaNnn of salrrn4 the bvuse 4 2Z4 W DLvrnn Aranoe t1ey, m a Ad pmt ai stAtk unfprre ta W F-or H015 wmu^, part t4 383 Y^lei l$ra SSa^t lniho * er €Ywo coi tW ari a :$2.$T/sWts"1iraoWCW_Lawfreaislt't>zuqbbpp-4 7P13121 Gwumk= - QH. -Cast Law• , S4an:h -Rcsult Page3at4 busihmaid maM.ine^ ^,a9aitmaf^k, AMii part tb a *ee which he there 9nwn4d Ih:Clinken Coun3g anct nafgth #re and hts tarfllly -=upied a[mitoashte ¢artlan d the tiBne, paftlcularly in mmrir and^ en. Dr. DlO&W. alsrx ihai:.atthls bnne they rmn+red ttwit m-idawf`om 224 W40 Oiaoan Awnue bxk.tV 134 Far tlJils 11wmue.`iby used t1MS latC& addrewfar, .. r&,eiving mail, aisv-dS ttPeM yartinq Ydsk^tim atldas dre ^Sddr^esi ^m i^vftklti t@h^y m^lde thalr Iroi^nai Rrct^ety t^c re&am^^. t7r, pi(le rAntinuesttin;beFr^ 3rl s.' rf altat t36 rqr 3111n AVeEgue entl at ftis- ptaca o? ^ineea. ftei^.rcing kn 59€6 SniiAttipEt^tt bSlfOd dr.`^i$a:'^N^da^^and?Y3taeidy(u iiave"a'n k htad unorgF 0pqEp endW iOp1Ec+51: ";Yes I.[al9 ^tH^$ t^ai^i^ 7F Fioe facE3^ 3kna 13&ftr1-lgla A14nuO 40MS/ t ts. mY hoin^, it h^s aaedl^.m^is^^d'^'^ aA^ I v^['e. th^ v1aS^•wF^Ye.binke^l tti^'^n ^^t#^?:as: etana ean,k^gi^s^^uC bn^ ^i,ktir Che afEoer." x bt 19S3 ft inatl5®r rnYa5ftl1mn®"hw homa Wh thd' Fe'k Hllb,t +'v4e4^ee drie^,nat ^)Y aP^^i,;all^pt^lgff^ ah^1^^+^e` "tlarn3cile laaye"tltffererat maanlrkgS, tF^t^€ tr^qtt^?it1Y hear an It : ria`domklle whem ba has ^ had a re^fs9en- tbe,Cira Iri pg^,& mhY rarsaWmErRy fm_-*ffih+#tl hj tFia lvcsltwr, aY hi$"daiMk1e:ak that to MRe earh nl !ha'S'e1atitts sgnietimes appaan alrr^us^^ Yatl@d ^^ k^fe ^r Es b whr^ dfitey ale ep0^0d wit}^autaf^mphna an ^u^"taviaw of Ctiese vmluRnrntiu^s^}in^^ns, t m^y he alasbni,ed * 3791^ cJlaracter4silts 6Y9t8raen V'Oo1nicile ars that It Issir1g1@ ld^{{rluln^h^'isib say^ a petSaSn ian hawe h€1¢^ne dair6clte ak ^ g;veti {T^L, ancY suchttemicif^ canrinues i^ft^: $^rpkhtle'i^'^stabYtshad: IY la our ni€!?t, t^e^ dadeaiqaritTs i'1^mkile rl^trhsy Ehe 1^1.e het^^'Iri q^n i4as at 136 Far tMIs Avkittp^iin tf5e CSalifnwotl Ctq SrlM) t7strnct: Els+ta parWt mty ^,mvtra^n.a^aa n^ldenre at the sar+bG dma O tJEi^ 3urlsprvdsnce (Zd). 161, E1Ar1ode, S;wgn 8; *ant v. ,lanas{.59 S3A711 ^, .^^ 545; Hip v, althmuenMPg^ 19 Uhlis ilgy 09; 77 camplarr]iJrisSs ^slrOum, Z9S; 37r4:Aelterlcan 349 Jeiltfsprtld^ce, 2t^Z, ^amidla.;SecRlc7n 9. And again, t^thCS^t aC#omlitiny ^ e daau^ie aevi^v nF the dcti i^r9dMr*, u-n th+a bmis of tst 1'aftsnd CU^cum3tansces detslhx!'abosre , we are 'of the ripinWn that, s'ccthe . Si^#3c^n 3313.54, R^vtsed roda; defcian2 was:an ectuai rPsideYrCbt` 336, faf ^1hts.^nue:, Fie waS pl'!ys'It^IPy pre^nt^antl 11^+ing there as a househakler" during slgoi#kant parts of eada day and sdr 1mOOrW.nE purpnses cons(36tntw1lh Pe^Tanaie. TheiVSiva9 no suhEetPuge, >1ru! 1i*1i1g aeniporary ar aiccieEentdt aE}ut siWM teslitenm. His rtxu^, twmW,ere c7eoa tae,rMaroer,tt pre*Pt and 3ubstafiRal. hlt^#.r'12tI9^t2,24^,81?s4ttesiQ4ltE+oa9islCasamL^+v`res^itt?nipibei ^ 7?IM2 C.a.wmale,er- E?H - Case Law - $catch - Rgstt12 4.of 4 Pqftp6 Me pf #h0 re'dstms fgr#W vAF(g +SP dei"rnitians,af rOAkenm is dat if eerrn I ppfied fu naanSrdlT€ereat rs Geen epPrepri8tefy smteil l 9 10 v0omln4 "athar staiut s, in fttcrisfnktti n cf "lsta €idn elsiAy tti^ 1^rtn ^re^iitenl# FhQ oqrt5 fdok;Qrim407Y NegiSit-PA pue.pnsg ds:vreal asthe.ebn6Dc2" 19A Arnerir,ire ]urtspr•`ud®ree+ 28kr poena€IIa, Sftof"attorrlldnoe t mentlatory irr 0hb^ and ftre c^rrresp^idingbd^++ertur P^bl^6roii khat=freea en apAnn[x+iq•p6Hftt a&ret SE?ap 1Je 0all6k^idtr-ivtry rtiild 0 sc3301 dO "Siich (^ th^ ^ttm^rY rPQse at ^tIEMi' 33^.5^, R^ui^l-^tiz:'3'E^tS^'atss^ md^, `kqei^feir^;1^e11b4rall^ ^3trued tb tlteac^5iii^ll^ment:oi fts Infi^nd`ed PtP{P^. T^Mnffitsr, Ri0,as c9urrfQ^r ^r^cng otl,^r tntn^9 at;at "d^^nx a1^;cr^rned a^,d n1al^ained a^I^r^ ^^^den.c^ aj sioD 'Wkfn-Ifnqtart Av^wa, Greene tbrrrit, bhl6} v,9i®^ tss rc^)tl^^ vhth urtor fiemt^r>^]^is €aml[y W^ ^{hfc^i w^^ a^ ^ iemOtory r"Td^:. r^a ^io rr?^tl^sa^l^.tv^h ^^ ^^itg puc ^ rii# cr^gysld^it n^i ^^y qnr ^Y l^onststertt s+fthf nur ^tisl^ ^^eY?rof ^u^ eptpign that d^ndari^l^s ^tt OdakI r6ode116 afth ni R^iqri ^i tju^stiett b^'an il^Ef^ l^f^^IMt^: &uk^e"fltd't^raC^uGS}hatit ia$ I^E'np^ th^ d^ends(^i^ Nep;er[mf,pre Jud'aeipraa !he pfa,'uiHiftappearng.irk #he r^mrd;tirejudtJm^n} I^A amed: 9udott[eht.oKrmet,`. 4'J#^ffi%SNP R:7., C9tYGUFB Eti^'^► IedD i iu ^^rtiixfrle r^aFGi e^kTUlet^r Iuy'^, 7kt3Sh,` bl^{s;Apt^ 412.242.8 1{stdt^S+q^I+b4tikslGss^ L^awr{r^su[#?ntrmhc-4 W1312QW: }'osiuon ^,apwr taf 2!Jiundg<.•mwy C'.oun,v Fiourcl•czl°Etvzt3uns .vlembzr ^^ttnib Lacb^•tn4h and 9"Emrntts Rztcili.,-R^^aailing l ie Vn4 'en Ltelritiori uo- Jpri RusWs t^.esidemj' lb^ hEeanWonidq Co.ynttiBoardL-fE,lecEitsqslh soisldert€i^ doctttn€eds 6d itifotba^.tF^tl Vot<^ed by Se^wr Iit,st^ 'k #lie ^l+iciini^nt^ ^tntl jt pre,^ld^stt^}^fi}^^i`iet4^^> ^It'tzirte^n^arf?anlti^nu^dthat^nxp^xnr^^t^-is^'1+^Sa^iltaf^^F$^tii^i A'wonu, 1^eE^er)qg :4^lt^tt, WrtlE+m Gantt zad ^att^atlsz}^z a^rtczf ya., N.ieanba.rs Webman;Eierrt Wi^lti^ np, , taW ?" 9 'illvh:^*5 6 "E ^-L3E' t^7.Ci .t•'^G'(S"'^1^^'Oi^,."-'t^55^ ^t7^1^_'r'. m'ierr.cx 1t tkze'sr service tt, ttia 00, }^r^as^itt^rr`3 C^fli.s: , vuMa AVAS t prpAdjq as3p; f3l^e;tl^ea^fca^a i ^^^'m revtewd1-he sla-cl q cttcrng, Cihlr^^uth I tJ0Q t& 2-008, A g?Oh-Wr^ idl?^tch€^i^'^#i ^Cl's os^^^^l^cl i^! az zt^ ^t^m^soalce addr^ss i^i ko t^73^1a^ ^^sst1>a^r?ti^^ iEritlt ea-20€1{}* Thzrcvs a arf{ut4ble, rhgt his re,giderac,-, 10.:E0 Cttklttnbu'q tPfiel'e Setlatcxr }•T,ia§tad W"jfied t14Oh9s A27^},^^-` 40fda5: T}'SCP£'-4Rt'I•' LSk`0 fortiiHrding "dCEarE3's reqSECat4 to C61iSS1Ib'C13^^tS151 IC^Fteri^i^, fQlt^o: l^h^r^it ^^rrazt r^'iu^tedrecoiv^l xft;^v ^hcrt^xutrA^.^.^•ru^eadc^sk ^l€d nt^^l^?e€tr tn:7ae cri"sWIcutace" Or zuvpagttant"t ^f^Ex^u^e ^i^^lt}^ cta^i:usta^^ ^nd t^sei ^ak,^ aE^l^^s l.E^b^^istt and^iz^e £4at, tt?kld# ^} d^es nititi^r^ e a, f `.^k&d hafattat st 14Ft S}ta,brn^tc^ ^^ en^^. }t>, C3ltizfi ^uid ^a^ erc^Yeie the ptt#tia E^Nt E,c ravedtg in Cnltrtnbui; Qh6ss islt3t his, tll=lv. . T3ieaLfoiv; W^imher^ Ritii.hie ^nd }adhdtt•= uatcxl ri:l on the rrit;tityn tliut Senulc,r Hwted; is a Slserbro©1€e_ Aupxue, Xe4tetrt,g, bhtu. BAard u# Ele,= o JENNIFER BRUNNER OHIO SECRETARY OF STATE 180 EAST BROAO STREET, i 6TH FLOOR COLUMBUS. QHIO 43215 USA TEL: 1-877-767-6446 FAX: 1-614-644-0649 WbVRCBO5.5TATE.OH. US DIRECTIVE 2008-79 Septembei` 5, 2008 TO: ALL COUNTY BOARDS OF ELECTIONS MEMBERS, DIRECTORS, AND DEPUTY DIRECTORS RE: Required Procedures in Administering Voter Challenge Statutes, R.G. 3503.24 and 35o5-i9 The intent of this directive is to prescribe procedures that ivill limit boards of elections' potential exposure to signiflcant awards of damages and attorneys' fees in suits brought by Ohio voters itihose voter registrations have beeu canceled based on application of Ohio's voter challenge statutes in a inanner that conflicts with fedeialstatutory and constitutional law. The Secretary of State issues this directiveto harmonize the provisions of R.C. 3503-24 and 3505.19 with the National Voter Registration Act ("NVI2A") and the United States Constitution to ensure that boards of elections do not unconstitutionally cancel a voter's registration witliout the due process guarantees in the United States Constitution and federal law. The office of Yhe Secretary of State has conclucted, based on comprehensive legal researeh and analysis of Ohio's voter challenge statutes and controlling federal law, that R.C, 3503•24 and 3505.19, if applied in conflict wi:th requirements of federal law, will place boards of elections in a legally vulnerable position. The Ohio challenge statutes autliorize, under certain circi.imstances, the cancellation of an Ohioan's voter registration witliout first providing the voter due process protectioiis of adequate notice and opporttinity to demonstrate that the challenge to his or her status as a qualified registered elector should be denied, and that his or her registration should not be canceled. The procedures established in this directive include the requirement tliat, where a challenge is subsnitted pursuant to ILC: 3503.24 and 3595.19 asserting that a registered elector is not qiialified to vote, a hearinE must be held before the next eleetion as a requisite for the board canceling the challenged voter's registration, vvhich may result in disenfranchisement of that voter for that electiox><. This directive will: • Provide procedures for boards of elections to follow in administering voter cliaIlenges grioi to Election Day to ensure'tkiat boards do not unconstitutionally deprive a voter of his or lier constitutional rights and to avoid costly litigation. • Explain the current status of Ohio law regarding voter challenges before Election Day. • Explain how certain provisions in flliio law tnay conflict 4+zth federal law and the United States Constitution regarding canceling a voter's registration without due process based on a voter challenge before Flection Day. Directive 2008-79 Required Procedures in Administering Voter Challenge Statutes, R.C. 3503.24 and ¢SO^.ia Rage 2 of 12 REOUIRED PROCEDURES TO AVOID AN UNCONSTITUIONAL DEPRIVATION OF A VOTER'S DUE PROCESS RIGHTS The Secretary of State issues this directive to harmonize the provisions of R.C. 3503.24 and 35o5.19-with the NVRA and the United States Constitution to ensure that boards of elections do not unconstitutionally cancel a voter's registration without the due process guarantees required by the United States Constitution and federal law. Under this directive, a board of elections that has received a challenge under R.C. 3503.24 or 3505.19 may not cancel a voter's registration based solely on the basis of board records unless it has first provided the voter notice and opportunity to appear at a public hearing. The board's records may be considered at the hearing, which is an administrative proceeding, despite the hearsay nature of the board's records. However, absent having first provided adequate notice to the challenged voter of his or her opportunity to be heard, to confront adverse witnesses and to present evidence, in a manner as described in this directive, information contained in the board's records may not be the sole justification for canceling a voter's registration. I therefore hereby direct that a board presented with a iLC. 3503.24 or R.C. 3505.19 challenge to a registered voter's status as a qualified elector must follow these procedures: Challenges Received Under R.C -qao3 z4 (Form No. 2.r;7 or Form No. zan) i. When a board receives a RC. 3503.24 challenge of another elector's right to vote,' the board shall first determine whether the person submitting the challenge is an elector in the county and has fully completed either Form No. 257 or Form No. 259. If the person is not an elector of the county, the board shall immediately deny the challenge. If the person has not used either of the prescribed forms, the board shall immediately deny the challenge. 2. If the person submitting the challenge is an elector of the county and has submitted a completed, prescribed form, the board shall prepare a Notice of Hearing that notifies the chaIIenged voter of all of the following: a. That the voter's right to vote has been challenged, and the name of the person subniitting the challenge, along with a copy of the form filed by the elector who has filed the challenge. b. The date, time and place of the hearing. c. That the voter has a right to appear and testify at the public hearing and present evidence demonstrating that the challenge should be denied. d. That the voter has a right to call and subpoena witnesses to appear at the hearing. e. That the voter has a right to be represented by counsel at the hearing and may cross- examine witnesses. f. That at the end of the hearing, cancellation of the voter's registration requires a majority vote of the members of the board of elections. I R.C. 3503.24 provides that "a challenge of the right to vote of any registered elector inay be made by any qualified elector of the county at the office of the board of elections not later than twenty days prior to the election. The applications or challenges, with the reasons for the application or challenge, shall be filed with the board on a form prescribed by the secretary of state and shall be signed under penalty of election falsification." Directive 2oo8-79 Required Procedures in Administering Voter Challenge Statutes, R.C. 3503.24 and q.9 oe 19 page s of iz g. That if the board members tie on the issue of cancellation, the matter shall be submitted to the Secretary of State for final resolution of whether the voter's registration shall be canceled. 3. The director shall send the Notice of Hearing to the challenged voter's address of record by first class forwardable U.S. mail. The notice shall be mailed no later than three days prior to the date scheduled for the hearing. R.C. 3503.24(B) provides that the notice may be sent "no later than three days before the day of any scheduled hearing." The Secretary of State strongly encourages boards of elections to send the notice at least eight to ten days prior to the scheduled hearing, as a court may determine that three days is not constitutionally sufficient notice. 4. The director shall provide the person who filed the challenge with written notice of the date and time of the hearing, and of the person's right to call and subpoena witnesses for the hearing. 5. The person challenging an elector's right to vote bears the burden of proving, by "clear and convincing evidence," a higher standard of proof than "preponderance of the evidence" used in typical civil court cases, that the challenged voter's registration is invalid. The return of a R.C. 35oi.19 Election Day notice (the 6o-day notice) as "undeliverable" by the post office is, by itself, insufficient to cancel a voter's registration under this standard. 6. After receiving all of the evidence at the hearing, the board shall immediately decide whether the challenge should be granted or denied. If the board grants the challenge by deciding that the name of any challenged person is not entitled to be on the official registration list, the person's name shall be removed and the person's registration forms canceled. If the board determines that the name of the challenged person should appear on the registration list, the challenged person's eligibility is confirmed and poll workers may not challenge the person's eligibility to vote on Election Day. 7. If the voter does not appear at the hearing, either in person or through the appearance of legal counsel, the board may consider its records to determine whether those records demonstrate, by clear and convincing evidence, that the challenged voter is not qualified to vote. Only then may the board sustain the challenge and cancel the challenged voter's registration by removing his or her name from the official registration list. 8. If the board members tie on the issue of cancellation, the matter shall be submitted to the Secretary of State for final resolution of the issue. 9. Consistent with R.C. 3503•01, the following constitute valid grounds for canceling a voter's registration: a. The challenged voter is not a citizen of the United States. b. The challenged voter is not of the age of 18 years or over as of the date of the election. c. The challenged voter is not a resident of the county in which the challenge was filed. d. The challenged voter did not register to vote at least 3o days prior to the day of the election. e. Certified proof of the death of the challenged voter exists. f. The challenged voter has been convicted of a felony and the conviction has not been reversed or annulled, and the felon remains incarcerated as a result of the felony conviction. (Note, a person who is convicted of a felony but is incarcerated for a Directive 2008-79 Required Procedures in Administering Voter Challenge Statutes, R.C. 3503•24 and 3FoF tq DaFe a of 12 misdemeanor violation or on new charges not yet adjudicated, and not as a result of a felony sentence of incarceration, a felony probation or community control violation or a post-release control violation, is eligible to vote if other requirements have been met.) In addition, a person convicted of a felony whose registration was not canceled during-his or her period of incarceration, and who has been released, is not subject to cancellation following his release from incarceration based on his felony conviction. (RC. 3503.21(A)(3) and R.C. 2961.o1.) That is, persons who have been convicted of felonies, incarcerated, but have been released, are not disqualified on the basis of their previous felony incarceration status if their registration was not previously canceled. Persons under post-release control supervision or under a non-jail felony community control (probation) sanction are not incarcerated and therefore, if registered, are eligible to vote. g. The challenged voter has been adjudicated incompetent by a court for the purpose of voting as provided in R.C. 5122.301. h. The challenged voter has failed to respond to a confirmation notice by the board and has failed to vote at least once during a period of four consecutive years, which period shall include two general federal elections. i. The challenged voter has been mailed a confirmation notice sent by the board and has failed to update his or her registration and to vote at least once during a period of four consecutive years, which period shall include two general federal elections. lo. The hearing shall be held, and the challenge decided, no later than ten days after the board receives the challenge. Although R.C. 3503.24(D) allows boards of elections to postpone hearings for challenges received within 30 days of an election, the instructions in Secretary of State Directive 2007-o6 remain in effect and the Secretary strongly advises against postponing any hearing until after the date of the election (which causes the challenged voter to vote provisionally instead of by regular ballot). Challenges Received under R.C..Osos.in i. When a board receives a challenge of an elector's right to vote under R.C. 3505.19,' the board shall first determine whether the person submitting the challenge is an elector in the state of Ohio. If neither the challenger nor the person challenged is an elector, the board shall immediately deny the challenge. A challenge under R.C. 35o5.19 may be made by a qualifying elector who appears in person at the office of the board of elections, or by letter addressed to the board, challenging the right of another registered elector to vote. Any such challenge must state the ground upon which the challenge is made, and must be signed by the challenger giving the challenger's address and voting precinct. 2 RC. 3505.19 provides: "Any person registered as an elector may be challenged by any qualified elector as to the registered elector's right to vote prior to the nineteenth day before the day of an election. Such qualified elector may, either by appearing in person at the office of the board of elections, or by letter addressed to the board, challenge the right of such registered elector to vote. Any such challenge must state the ground upon which the challenge is made, and must be signed by the challenger giving the challenger's address and voting precinct. If the board is satisfied, in accordance with division (B) of section 3503.24 of the Revised Code, that the challenge is well- taken, the director shall so indicate on the registration cards and shall so notify in writing the judges of the precinct. If such challenged person offers to vote at such election, the challenged person shall be examined as in the case of an original challenge. If such person establishes, to the satisfaction of the judges, that the person's disabiHties have been removed and that the person has a right to vote, the person shall be permitted to vote." Directive 2oo8-79 Required Procedures in Administering Voter Challenge Statutes, R.C. 3503.24 and asos ie page S of 12 2. If the person submitting the challenge is an elector of the state of Ohio, the board shall prepare a Notice of Hearing that notifies the challenged voter of all of the following: a. That the voter's right to vote has been challenged, and the name of the person submitting the challenge, along with a copy of the any letter or form filed by the elecYor who has filed the challenge. b. The date, time and place of the hearing. c. That the voter has a right to appear and testify at the public hearing and present evidence demonstrating that the challenge should be denied. d. That the voter has a right to call and subpoena witnesses to appear at the hearing. e. That the voter has a right to be represented by counsel at the hearing and may cross- examine witnesses. f. That at the end of the hearing, a decision that the challenge is "well-taken" requires a majority vote of the members of the board of elections. g. That, if the board members tie on the issue, the matter shall be submitted to the Secretary of State for fmal resolution of whether the challenge is "well-taken." 3. The director shall send a Notice of Hearing to the challenged voter's address of record by first class forwardable U.S. mail. The notice shall be mailed no later than three days prior to the date scheduled for the hearing. R.C. 3503-24(B), which is incorporated into R.C. 3505•19, provides that the notice may be sent "no later than three days before the day of any scheduled hearing." The Secretary of State strongly encourages boards of elections to send the notice at least eight to ten days prior to the scheduled hearing, as a court may determine that three days is not constitutionally sufficient notice. 4. The director shall provide the person who filed the challenge with written notice of the date and time of the hearing, and of the person's right to call and subpoena witnesses for the hearing. 5. The person challenging an elector's right to vote bears the burden of proving, by "clear and convincing evidence," a higher standard of proof than "preponderance of the evidence" used in typical civil court cases, that the challenged voter's registration is invalid. The return of a R.C. 35oi.19 Election Day notice (the 6o-day notice) as "undeliverable" by the post office is, by itself, insufficient to cancel a voter's registration under this standard. 5. After receiving all of the evidence at the hearing, the board shall immediately decide whether the challenge is well-taken. If the board members tie on the issue whether to grant or deny the challenge, the matter shall be submitted to the Secretary of State for final resolution. 6. If the board grants the challenge by determining that it is well-taken,3 the board shall NOT cancel the challenged voter's registration by removing his or her name from the 3 The board's decision should be based on one of the following determinations: a. The challenged voter is not a citizen of the United States. b. The challenged voter is not of the age of i8 years or over as of the date of the election. c. The challenged voter is not a resident of the county in which the challenge was filed. d. The challenged voter did not register to vote at least 3o days prior to the day of the election. e. Certified proof of the death of the cballenged voter epsts. Directive 2oo8-79 Required Procedures in Administering Voter Challenge Statutes, R.C. 3503.24 and 15o5 lq nage 6 of 12 official registration list. Instead, the director shall notify the poll workers in the challenged elector's precinct of the board's decision and mark the elector's name in the poll book, including the reason the board finds the challenge to be well-taken. If the challenged voter offers to vote on Election Day, the poll workers shall challenge the elector-pursuant to R.C. 35o5.2o, and the board's decision that a challenge is well-taken is final (RC. 3505.20). In all cases, including when a challenge has been well-taken by a board of elections, poll workers who are unable to determine that the person who offers to vote on Election Day has a right to vote, the person shall be permitted to vote a provisional ballot. In cases where the board has not determined a challenge under R.C. 3505•19 and poll workers are satisfied after examining the challenged elector under R.C. 3505•20 that the elector has a right to vote, the elector shall be permitted to vote a regular ballot. 7. If the board denies the challenge by determining that the challenge is not well-taken, the director shall instruct the poll workers that the challenged voter's eligibility is confirmed and the voter niay not be challenged by the poll workers on Election Day. 8. The hearing shall be held, and the challenge decided, no later than ten days after the board receives the challenge. Although RC. 3503.24(D) allows boards of elections to postpone hearings for challenges received within 30 days of an election, the instructions in Secretary of State Directive 2oa7-o6 remain in effect and the Secretary strongly advises against postponing any hearing until after the election (which causes the challenged voter to vote provisionally instead of a regular ballot). Boards of elections are encouraged to contact their county prosecutor for additional advice concerning notice and opportunity to be heard at a constitutionally required hearing. f. The challenged voter has been convicted of a felony and the conviction has not been reversed or annulled, and the felon remains incarcerated as a result of the felony conviction. (Note, a person who is convicted of a felony but is incarcerated for a misdemeanor violation or on new charges not yet adjudicated, and not as a result of a felony sentence of incarceration, a felony probation or community control violation or a post-release control violation, is eligible to vote if other requirements have been met.) In addition, a person convicted of a felony whose registration was not canceled during his or her period of incarceration, and who has been released, is not subject to cancellation foilowing his release from incareeration based on his felony conviction. (R.C. 35o3.2i(A)(3) and R.C. 2961.oi.) That is, persons who have been convicted of felonies, incarcerated, but have been released, are not disqualified on the basis of their previous felony incarceration status if their registration was not previously canceled. Persons under post-release control supervision or under a nonjail felony community control (probation) sanction are not incarcerated and therefore, if registered, are eligible to vote. g. The challenged voter has been adjudicated incompetent by a court for the purpose of voting as provided in R.C. 5i22.3oi. h. The challenged voter has failed to respond to a confirmation notice by the board and has failed to vote at least once during a period of four consecutive years, which period shall include two general federal elections. i. The challenged voter has been mailed a confirmation notice sent by the board and has failed to update his or her registration and to vote at least once during a period of four consecutive years, which period shall include two general federal elections. DircctiVe 2008-79 Required Procedures in Adniinistering Votcr Challenge Stattites, R.C. 3503.24 and gSori iq oaP,e 7 of 12 No Due Process Hearing Reqciired for Election Day Poll Worker Challenges pursua.nt to R. C. 3505.20 A challenge made by a poll worker at a polling place on Election Day pursuant to R.C. 3505.20 does not rcquire advance notice and opportunity to be heard, nor are the procedures set forth above required for a poll worker chaâenge on Election Day. Where poll workers find an individual not qualified to vote when at a poll'uig location, that individual shall be provided the opportunity to vote a provisional ballot. If you have questions concerning this directive, please contact your assigned elections attorney. Sincerely, Jennifer Brunner Directive 2oo8-79 Required Procedures in Administering Voter Challenge Statutes, R.C. 3503.24 and RSOF 19 page 8 of 12 APPENDIX-SUPPORTING LEGAL ANALYSIS OHIO LAW ON VOTER CHALLENGES PRIOR'TO ELECITON DAY R.C.35o3•24 P.C. 3503.24 allows any elector to challenge the right to vote of another elector in that county no later than the 20th day before an election. The challenge shall be filed using one of the forms prescribed by the Secretary of State (Form No. 257 or Form No. 259). The law provides that when a board of elections receives a challenge, it shall promptly review its records. If the board is able to determine that a challenge should be granted based solely on the basis of the board's records, the board may immediately vote to grant the challenge and thereby cancel the challenged voter's registration without notice to or opportunity to be heard by the challenged voter. If the board is not able to determine whether a challenge should be granted or denied based solely on the board's records, the director shall promptly set a time and date for a public hearing. The director shall then notify the challenged voter of the hearing, and the hearing shall be held, and the challenge decided, no later than ten days after the board receives the challenge. If the board determines that the challenge should be granted, the board shall remove the person's name from the official registration list and cancel the voter's registration. If the challenge is filed within 30 days of an election, the board, in its discretion, may postpone the hearing, and any notifications of that hearing, until after the day of the election. Any hearing postponed shall be conducted not later than ten days after the day of the eIection. Any elector who is the subject of a challenge with a hearing postponed until after the election shall be permitted to vote a provisional ballot at the election. The provisional ballot shall not be counted unless the hearing conducted within ten days after the election results in the elector's inclusion in the official voter registration list. R.C. 35o5.i9 RC. 35o5.19 allows any elector in the state of Ohio to challenge the right to vote of any other elector prior to the t9u day before an election. The challenger shall either send a letter to the board of elections or appear in person. Similar to a challenge under R.C. 3503•24, when the board receives the challenge, it shall promptly review the board's records. If the board is able to determine that a challenge should be granted solely on the basis of the board's records, it may immediately grant the challenge and thereby cancel the challenged voter's registration without notice or an opportunity to be heard by the challenged voter. If the board is not able to determine whether a challenge should be granted or denied based solely on the board's records, the director shall promptly set a time and date for a hearing. The director shall then notify the challenged voter of the hearing, and the hearing shall be held, and the challenge decided, no later than ten days after the board receives the challenge. If the board determines that the challenge is well-taken, the board shall notify the precinct poll workers of that determination. If the challenged person appears to vote on Election. Day, the poll workers shall examine the elector as in the case of an original challenge. If the elector establishes, to the satisfaction of the poll workers, that the person's disabilities have been removed and that the person has a right to vote, the person shall be permitted to vote. Directive 2oo8-79 Required Procedures in Administering Voter Challenge Statutes, R.C. 3503.24 and s-504 xg page o of 12 If the challenge is filed within 3o days of an election, the board, in its discretion, may postpone the hearing, and any notifications of that hearing, until after the day of the election. Any hearing postponed shall be conducted not later than ten days after the day of the election. Any elector who is the subject of a challenge with a hearing postponed until after the election shall be permitted to vote a provisional ballot at the election. The provisional ballot shall not be counted unless the hearing conducted within ten days after the election results in the elector's inclusion in the official voter registration list. Secretary of State Direotive 2007-o6 Secretary of State Directive 2oo7-o6, issued April 4, 2007, advises boards against postponing the challenge hearing and to consider all challenges submitted pursuant to R.C. 3503.24 and 3505.ig at one or more hearings held prior to the election. It is the Secretary of State's position that voters who believe they have been disenfranchised are more likely to sue the boards of elections, resulting in court challenges that will be time-consuming for the board and the county prosecutor at what will already be a busy election time. In the event the board chooses not to hold a hearing before the election, Directive 2oo7-o6 provides that it may serve as evidence against a board in resulting litigation. This instruction remains in effect. Secretary of State Directive 2007-11 Secretary of State Directive 2007-11, issued July 13, 2007, provided instructions concerning maintenance of a general voter records maintenance program as mandated by the National Voter Registration Act (the "NVRA") and included instructions to ensure that cancellations of voters' registrations complied with specific requirements of that federal law. This directive complements and supplements the instructions contained in 2007-i1 concerning the administration of a general program that makes a reasonable effort to remove the names of ineligible voters as described in the NVRA. FEDERAL AND CONSTII tT1TONAL LAW REGARDING CANCEI.I.ATION OF A VOTER'S REGISTRATION The National Voter Registration Act The NVRA, commonly referred to as the "motor voter law" (see 107 Stat. 77, 42 U.S.C. 197399). was signed into law on May 20,1993. The purposes of the NVRA are to increase the number of voter registrations for eligible citizens, to enhance the participation of eligible citizens in the voting process, to protect the integrity of the electoral process, and to ensure accurate and current voter registration rolls are maintained. The provisions of this federal law became effective on January 1, 1995. Following passage of the NVRA, the Ohio General Assembly enacted Substitute Senate Bill No. 300 to incorporate the requirements of the federal law into Ohio law. The provisions of the state law became effective January 1, 1995• Under the federal NVRA, a county board of election may legally cancel a voter's registration for reasons of residency only if the elector has either (i) confirmed in writing that he or she has moved to a different precinct, or (2) failed to respond to a particular notice sent by boards of elections and failed to vote at two general elections for federal office.' 4 Specifically, 42 U.S.C. § i973gg-6(a)(3) and 6(a)(4), provide: Directive 20o8-79 Required Procedures in Administering Voter Challenge Statutes, R.C. 3503.24 and QSOti 19 page io of 12 Thus, under the NVRA, a board may remove the name of a voter from its rolls where the voter confirms in writing that he has moved outside the county, or if the board has acted according to a "general program" as prescribed in 42 U.S.C. § 1973gg-6(a)(4). Absent those circumstances, however, a county board of elections may not remove a voter's name from its list of registered "In the adnzinistration of voter registration for elections for Federal office, each State shall (3) provide that the name of a registrant may not be removed from the official list of eligible voters except - "(A) at the request of the registrant; "(B) as provided by State law, by reason of criminal conviction or mental incapacity; or "(C) as provided under paragraph (4). "(4) conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of - "(A) the death of the registrant; or "(B) a change in the residence of the registrant, in accordance with subsections (b), (c), and (d) of this section." And 42 U.S.C.A. § 1973gg-6(d), provides: "(i) A State shall not remove the name of a registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has changed residence unless the registrant- "(A) confirms in writing that the registrant has changed residence to a place outside the registrar's jurisdiction in which the registrant is registered; or "(B) (i) hasfailed to respond to a notice described in paragraph (2); and (ii) has not voted or appeared to vote (and, if necessary, correct the registrar's record of the registrant's address) in an election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice. "(2) A notice is described in this paragraph if it is a postage prepaid and pre-addressed return card, sent by forwardable mail, on which the registrant may state his or her current address, together with a notice to the following effect: "(A) If the registrant did not change his or her residence, or changed residence but remained in the registrar's jurisdiction, the registrant should return the card not later than the time provided for mail registration under subsection (a)(i)(B) of this section. If the card is not returned, affirmation or confirmation of the registrant's address may be required before the registrant is permitted to vote in a Federal election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice, and if the registrant does not vote in an election during that period the registrant's name will be removed from the list of eligible voters. "(B) If the registrant has changed residence to a place outside the registrar's jurisdiction in which the registrant is registered, information concerning how the registrant can continue to be eligible to vote. (Emphasis added) Directive 2oo8-79 Required Procedures in Administering Voter Challenge Statutes, R.C. 3503.24 and RrOR Da£e 11 of 12 voters, i.e., based on a R.C. 3503.24 or 3505.19 challenge asserting non-residence, unless the board first sends the voter, by forwardable mail, a prepaid and pre-addressed return card; the voter fails to respond to that notice; and the voter does not vote during the next two general elections for federal office. See Directive 2007-11 for additional instructions to assure board compliance with the NVRA. The United States Constitution In addition to the NVRA, the United States Constitution provides a due process guarantee that "An elector cannot be disenfranchised without notice and an opportunity to be heard" because "denial of the right to vote is a denial of a fundamental liberty. " Bell v. Marinko (2002, D.C. Ohio), 235 F.Supp.2d 772, 777. See also, League of Women Voters of Ohio v. BlackweIl (2005, N.D. Ohio) 432 F.Supp.2d 723, 73o ("[Plaintiffs] contend that local officials removed the names of the individual plaintiffs, and others, from the voter registration rolls and did not provide them with either notice or opportunity to challenge the decision. That conduct, if true, would be actionable under § 1983." (Emphasis added.)) Legal Conclusions: Potential Conflicts between State and Federal Law i. R.C. 3503.24 and 3505•19 must be read in pari materia with the provisions of the NVRA and the United States Constitution. 2. Where a voter has not confirmed in writing that he or she has moved outside the county, R.C. 3503.24 and 3505.19 are in conflict with the NVRA to the extent that they authorize the removal of a registered elector's name from the list of qualified electors based on non-residency without first having provided the elector with a prepaid and pre- addressed return card notice, sent to the voter by forwardable mail, and at a point in time not earlier than two federal election cycles after the date of the notice. In light of this conflict, the federal NVRA prevails over the Ohio statutes. This conclusion is supported under federal preemption doctrine and in light of the federal government's authority to prescribe rules for conducting elections to federal office, including the office of president. 3. A board of elections may not rule favorably on a challenge to a registered elector's status as a qualified voter and remove that voter from the voter registration rolls without first providing the due process requisites, secured by the United States Constitution, of adequate notice and an opportunity to be heard. 4. A board of elections would be vulnerable in a 42 USC § 1983 action should it receive a challenge on an elector's right to vote and, under the authority of R.C. 35o3.24 and 3505.i9, remove a voter from its list of qualified voters based on non-residency without first providing notice to the challenged voter and holding a hearing. This would be the case even though R.C. 3503.24 purports to authorize removal based solely on "the records maintained by the board." 5. An elector will be provided necessary due process, and the board will significantly minimize its exposure to an award of.damages and attorneys' fees in a 42 USC § 1983 action, by providing notice and holding an adequate hearing that gives a challenged voter Directive 2oo8-79 Required Procedures in Administering Voter Challenge Statutes, R.C. 3503.24 and qyoS 1q page 12 of 12 the opportunity to be heard and to confront adverse witnesses. This is true even though R.C. 3503.24 on its face permits removal from the rolls without those protections. Providing notice and a hearing prior to depriving a voter of his or her fundamental liberty interest in having the right to vote provides the voter constitutional due process. That is, R.C. 3503.24 is not unconstitutional on its face, although it would be unconstitutional as applied if a board canceled a voter's registration without providing prior notice and an opportunity for a challenged voter to appear at a hearing. ..1ENNIFFR BRUNNER CJI-l.10 SECRETARY OF STATE, ISO EAST BROAD STREET, I 6TH rLOOR COLUMRUS, OHIO 43215 USA TEI: 1-877-767-6446 FA%: 1-6I4-644-0649 WPV W.SOS.STATE.OH. US April 7,2009 Steven P. Harsman, Director Montgomety County Board of El.eclions 451 West Third St. Dayton, Ohio 454$1 I2E:'Be vote on whether Jon A. kIusted is a qualified elector of Montgomery County Dear Mr. Harsnian: On February 25, 2oog, the Montgomery County Board of Elections reached a tie vote on the question of whether Jon A. I-Iusted is a qualified elector of Montgomery County. My analysis and decision are outlined below. Backgrotutd Husted currently serves as state senator, representing Ohio's Sixth Senate District, having been elected at the 2oo8 general election. Prior'to his term in the state senate, Husted served as state.representative from the Thirty-seventh House District from 2o0i tllrough 2oo8. I-Iusted also served as Spealcer of the Ohio I-Iouse of Representatives from 2005 through 2oo8. On October 27, 2008, the Montgomety County Board of Elections ("the Board") received a telephone call and subsequent facsimile fiom a representative of ProgressOhio, a non- profit corporation, requesting an investigation of Husted's residency. Hearing Tr. i.' Then, on October 28, 2oo8, the Board received another investigation request from Regine Elliot, a Montgomery County elector, hiearing Tr. i. Based oii this challenge, the Board initiated an investigation of Husted's residency and qualifications as an elector of Ivlontgomery County. Unfortunately, neitlrer of the investigation reqttests was included in the official record submitted by the Board. The Board conducted an investigatory hearing on January 7, 2009. Husted attended the hearing. There is no record that Husted'cvas represented by counsel at the hearing. Victor Whisman of the Montgomery County Prosecutor's office appeared at the hearing as legal counsel for the Board of Elections. At the conclusion of the hearing, the Board initially reached a tie vote on the question of requesting additional documents from Husted. T'his motion was subsequently writhdrawrt pending the receipt of additional legal research from Whisman. On February 25, 2oog, the Board received the requested legal research from Whisman. Following a discussion among the Board members, Board Chair Gregory Gantt made the 1 The Board conducted a hearing regarding Husted's residence on January 7, 2009. References to the hearing are referred to by the abbreviation "Hearing Tr." And the page number in the transcript. Montgomey County Tie Vote - Jon A. Husted Residency Page 2 of 5 following motion: "I make a motion that we've done our job and investigated this and that [Husted is] a resident of 148 Sherbroolce Avenue [sic]." The motion was seconded by Board Member James Nathanson. Board Members Gantt and Nathanson voted in favor of the motion, while Board Members Dennis Lieberman and Thomas Ritchie voted against the motion, resulting ini a tie vote. In accordance with R.C. 35o1.1i(X) and with the procedures-outlined in the Ohio Election Official Manual, the Montgomery County Board of Elections subniitted the tie vote to me on March 11, 2oo9. My analysis and decision are outlined below. Discussion The tie vote of the M.ontgo.mery County Board of Elections concerns whether Jon A. Husted is a qualified elector of Montgomeiy County. The statute providing the rules for determining the resiclence qualifications of an Ohio elector is R.C. 3503.02. The portions of R.C. 3503.02 relevant to this matter are: AIl registrars and juclges of elections, in determining the residence of a person offering to register or vote, shall be governed by the following rules: (A) That place shall be considered the residenee of a person in which the person's habitation is fixed and to whicJl, whezeuer the person is absent, the person has the intention of returning. (emphasis added) (B) A person shall not be considered to have lost the person's residence who leaves the person's home and goes into another state or county of this state, for temporary pwposes only, with the intention of returning. (eniphasis added) (C) A person shall not be considered to have gained a residence in any county of this state into which the person comes for-temporary purposes only, without the intention of making such couni^j the permanent place of abode. (emphasis a(ided) (D) The place where the family of a marri,ed person resides shall be considered to be the person's place of residence; except that rvhen the spouses have separated and live apart, the place where sucb a spouse resides tlie length of time required to entitle a person to vote shall be considered to be the spouse's place of residence. (emphasis added) (F) Except as otherwise provided in division (G) of this section, if a person removes from this state and continuously resides outside this state for a period of four years or more, the person shall be considered to have lost the person's residence in this state, notwithstanding the fact that the person may entertain an i:ntention to return at some future period. (G) If a person removes from this state to engage in the services of the United $tates government, the person shall not be considered to have lost the person's residence in this state during the period of such service, and Montgomery County Tie Vote - Jon A. Husted Residency Page 3 of 5 lekewise should the person enter ilie eTnployrnent of the state, the place iuhere such person resided at the time of the person's removal stwlI be considered to be the person s place of residence. Husted was the only vvitness to testify at the hearing. Husted presented the following evidence on his own behalf regarding the relevant factors of R.C. 3503.02: I-iusted owns a home at 148 Sherbroolce Drive in Kettering, Montgomery County, Ohio. Hearing Tr. r. He has owned that home for the past fourteen years. Hearing Tr.1. Husted is registered to vote at 148 Sherbroolce Drive. Hearing Tr.1. Prior to running for state representative in 2ooo, while living in Kettering, Husted worked for the Montgomery County Commissioners and the Dayton Al•ea Chamber of Commerce. Hearing Tr.1. Husted has served in the General Assembly since 2ooz. Hearing Tr.1-2. During his first term as a state representative, Husted began arranging for overnight stays in Columbus. Hearing Tr. 2. Husted has "rented, owned, or stayed with family in at least six different places" during his tenure as a state representative and state senator. Hearing Tr. 2. At one point, approximately three years ago, Husted and his wife had oivnership in a condominiLun located in Columbus, near the Statehouse. Hearing Tr. 6. Husted and his wife have a two-year-old daughter. I-Iearing Tr. 5. At the time of their marriage, Busted's wife resided in Columbus. Hearing Tr. 6. Since tlleir lnarriage, Husted's wife has "maintained" a house in Franklin County. Hearing Tr. 6. Husted also has a thirteen-year-old son who lives in Upper Arlington rvith Husted's former wife. Hearing Tr. 5. I-Iusted's son attends sr.hool in Upper Arlington. Hearing Tr. 3. Husted testified that "for the most part [it is] accurate" that his family resides in Columbus. Hearing Tr. 3. He stated that he personally "split[s] time between" Columbus and Kettering, spending a "considerable amount of time in Columbus." Hearing Tr. 5, i4-15. He further testified that during the pastyear he has returned to 148 Sherbrooke Drive "[n]ot daily, but at least weeldy" and that "[o]n some occasions" he has spent the night at 148 Sherbrooke Drive. Hearing Tr. 6-8,14-t5. Hustecl's children have rooms at the residence at 148 Sherbroolce Drive, and his ivife supervised the remodeling of the home two years ago. Hearing Tr. g-6. Approximately two years ago, 148 Sherbroolce Drive was apparently placed into a trust. Hearing Tr. 7-8. Husted stated that he receives various forms of maIl at the 148 Bherbroolte Drive location. Hearing Tr. 7. There is a telephone at 148 Sherbrooke Drive. Hearing Tr.1i. Husted pays the Dayton Power & Light bill for 148 Sherbrooke Drive, but could not recall the amount of the average br7l during the past year. Hearing Tr. y. Husted testified that his taxes and retirement statements were sent to 148 Sherbrooke Drive and that this is the location that his "official business" is conducted through. Hearing Tr. 9-1o. Husted has a bank account with Dayton Air Credit Union. Hearing Tr. 11. Under further questioning Husted stated that lie "may" share a joint account rvith his wife in Columbus and that his paychecks "may" be deposited to this joint account, but that he does not use the account. Hearing Tr. 11-i3. Husted's automobile is registered in Montgomery County, Ohio. Hearing Tr. ii. Montgomery County Tie Vote - Sorn A. Ilusted Residency Page 4 of 5 Husted claimed that to the extent he departed from Montgomery County, it was due to his role as a state legislator. Hearing Tr. 4. FIusted testified that intends to return to Kettering fitll-time when his public service ends. Hearing Tr. 2, 4, 15 Following the public hearing, one Board member moved to request that Husted present twospecific documents, his Dayton Power & Light utility bills and a copy of the trust documents related to oNUership of 148 Sherbrooke Drive. The Board reached a tie vote on this motion - but that tie vote was not submitted to tne for consideration because the member subsequently rvithdrew his motion. It does not appear that there were any further formal attempts by the Montgomery Cotnity Board of Elections to secure documents from Husted. When these facts are applied to the relevant rules for determining residence under R.C. 3503.02 (listed above), it is clear that, prior to 2001, I-Ittsted was a resident of lbiontgomery County, 1hdng at 148 Sherbrooke Drive in Kettering. It is undisputed that since 2ooi, Husted has spent "considerable" time living outside Montgomery County on a regular basis. It is also undisputed that Husted's family resides outside Montgomery County. Thus, it appears that I-Iusted has homes in botli Montgomery County and Franldin County. Although an individual may have more than one home, he may only have one "residence" for purposes of voter registration. Determining Husted's eligibility to be a Montgomery County voter requires determining which of these homes constitutes his "voting residence." Ohio law defines "voting residence" as "[t]hat place' * if in tvhich the person's habitation is fixed and to which, wirenever the person is absent, the person has the intention of returning." RC. 3503.02(A). Otlier provisions of RC. 3503.02 provide guidelines that election officials must use in determining whether an address qualifies as an elector's "voting residence." Husted's undisputed testimony repeatedly emphasized his intent to return to Montgomery County on a full time basis when his public service is completed. The courts have noted that a"person's intent is of greatimport" in applying R.C. 3503.02. State ex r•ei. Stine v. Broavn Cty 13d. ofEleciions (2004), ioi Ohio St.gd 252, 2004-Ohio- 774at 117,5. However, "[b]ona fide residence may be determined not only by an intention to reside at a fixed place, but also by factors that express such an intent." Bell v. A2'arinko (C.A.6, 2004), 367 F.3d 588, 592 (emphasis added). The law expressly provides that residence is the location where a person's "habitation is fi,^ced" R.C. 3503•02(A) (eniphasis added). Avoter's present circumstances are necessarily part of the analysis in determining his voting residence. These determinations have historically been conducted on a case-by-case basis, applying the guidelines contained in R.C. 3503-02, Although there is no evidence to dispute Husted's intent to return to Montgomery County at some point in the future, the record is unclear as to where his habitaHon is presently fixed. He testified that he returns to Montgomery County on a weekly, but not daily basis. However, he also testified that he spends "a considerable amount of time in Colunibus." From his testimony alone, it is not clear whether Husted is a Montgomery County resident who periodically remains in Franldin County or a Franldin County resident who periodically travels to Montgomery County. Montgomeiy County Tie Vote - Jon A. Husted Residency Page 5 of 5 Reviewing Che evidence offered at the hearing, many of Ilus'ted's staten-ients were unclear, incomplete, or partially contradictory. For example, he indicated that he previously owned property in Franldin County, but could uot specify when or how long he owned this property. Husted was also unclear on the details of ownership regarcfing both 148 Sherbrooke Drive and his wife's property in Franklin County. There was also a laclcof clarity Mth regard to utility usage at 148 Sherbrooke Drive, which would tend to indicate how frequently the properLy is actually occupied. Husted testified that he pays the utilities fbr the property, but could not recall details about average cost of these utilities. Regarding this poizit, Board Members Lieberman and Ritchie assertecl in their position statement that water utility records for 148 Sherbroolce Drive, received pursuant to a public records request, indicated usage so low as to suggest no one was living there and that these water bills rvere paid from a joint checldng account based in Columbus. The issue of Husted's location of residence is an important question requiring careful and thorough consideration, because it affects his funclamental right to vote. Moreover, in an effort to afford the greatest election integrity, only eligible persons are permitted to be electors, to protect the electorate from dilution by unauthorized votes. Wlien deciding a question of such irnport, it is essential to have a clear, well-developed record. Unfortunately, in this case, the official record submitted by the Montgomery County Board of Elections is insufficient to permit ine'to decide the matter without fui-ther information. A significant portion of the material submitted in the official record involves legal arguments regarding whether R.C. 3503.02(D) orS5o3.o2(G) conelusivelyresolve this question. While these argumezrts are useful, residency determinations require a fact- specific, case-by-case analysis. Due to the lack of clear, specific factual evidence in the official record it is impossible to perfonn the necessary analysis without further information. Decision Therefore, I am holding this matter in abeyance while Senator Husted is separately provided Mth the opportunity to submit additional documentation that niay assist the board in its decision. Sincerely, Jennifer Brunner JENNIFER BRUNNER OHIO SECRETARY OF STATE 180 EAS-- 5R0?D STF.EET, I6TH FLCO9 ColuN[+US.ONIO 43215 USA TEL; 1 -877-767-6446 FAn: 1-614•644-0649 WWN1. 509.8:':1TE. oia.Us April 8, 2009 VIA U.S. MAIL The Honorable Jon Husted Senator, 6th Ohio Senate District Ohio Senate Statehouse Columbus, Ohio 43215 RE: Montgomery County Board of Elections tie vote Dear Senator Husted: I am w-riting svith reference to the pending tie vote of the Montgomery County Board of Elections regarding the issue of your proper residence for voter registration. It appears that members of the Montgomery County Board of Elections sought certain documents and records relevant to the question of your residence. These documents ine] utility records for the periods of time addressed in the board's review (e.g., electricity, wa telephone) for the property located at 148 Sherbrooke Drive in Kettering, Ohio. Other re• induded local tax returns, Ohio Public Employees Retirement System statements, bank F records, and legal documents relative to a trust holding the property located at i48 Shert Drive. Although the Board did not exercise its authority to subpoena these documents, ii provided you wdth an opportunity to make a voluntary submission in support of your clai you were and are a current resident of Montgomery County. It appears that you declinec opportunity to submit these records. As you know, ensuring the greatest election integrity requires not only that eligible persc permitted to be registered and to vote, but also that only eligible persons be permitted to electors. This allows all who are eligible to participate and protects the electorate from d by unauthorized votes. Unfortunately, the official record, including the transcript of you testimony at the Board's hearing on this matter, lacks sufficient documentation to resolv evidentiary issues regarding the question of your residence, both at the time in question currently. Documentary evidence is essential to build the clear, well-developed record n to determine this type of question. I respectfully request that you provide my office with the documents listed above and an documents you believe may be relevant to assisting the board and my office determine y voting residence at the time involved in the board's investigation and presently. Any cor regarding confidential or private information contained in these documents (e.g., Social Security numbers), will be addressed by recent practices developed in response to legislation enacted requiring redaction before release to the public. Please respond to this request by April 18, 2009. Thank you for your cooperation in this important matter. You may contact me if you have any questions. Sincerely, cc: Montgomery County Board of Elections Jon Husted, 148 Sherbrooke Drive, Kettering, Ohio, 45429 JENNIFER BRUNNER OHIO SECRETARY OF STATE ISO EnS"' BROAD ST(.EET, I6TH FLCQV COLUl.'FUS.OHIO 43215 USA TEL: 1-877-767-5446 Fl.x: 1-61 A-644-0649 'l(Y'i4V.i05.G:',t].:. Dlf. U5 April 8, 2oo9 VIA U.S. MAIL The Honorable Jon Husted Senator, 6th Ohio Senate District Ohio Senate Statehouse Columbus, Ohio 43215 RE: Montgomery County Board of Elections tie vote Dear Senator Husted: I am writing with reference to the pending tie vote of the Montgomery County Board of Elections regarding the issue of your proper residence for voter registration. It appears that members of the Montgomery County Board of Elections sought certain documents and records relevant to the question of your residence. These documents incl utility records for the periods of time addressed in the board's revievv (e.g., electricity, wa telephone) for the property located at 148 Sherbrooke Drive in Kettering, Ohio. Other re included local tax returns, Ohio Public Employees Retirement System statements, bank a records, and legal documents relative to a trust holding the property located at 148 Sher1: Drive. Although the Board did not exercise its authority to subpoena these documents, i1 ptovided you with an opportunity to make a voluntary submission in support of your clai you were and are a current resident of Montgomery County. It appears that you decline^ opportunity to submit these records. As you lmow, ensuring the greatest election integrity requires not only that eligible persc permitted to be registered and to vote, but also that only eligible persons be permitted to electors. This allows all who are eligible to participate and protects the electorate from d by unauthorized votes. Unfortunately, the official record, including the transcript of you testimony at the Board's hearing on this matter, lacks sufficient documentation to resolv ecddentiary issues regarding the question of your residence, both at the time in question currently. Documentary evidence is essential to build the clear, well-developed record n to determine this type of question. I respectfully request that you provide my office with the documents listed above and an documents you believe may be relevant to assisting the board and my office determine y voting residence at the time involved in the board's investigation and presently. Any cor regarding confidential or private information contained in these documents (e.g., Social Security numbers), wi11 be addressed by recent practices developed in response to legislation enacted requiring redaction before release to the public. Please respond to this request by April 18, 2009. Thank you for your cooperation in this important matter. You may contact me if you have any questions. Sincerely, P:^^ Jennifer Brunner cc: Montgomery County Board of Plections Jon Husted, 148 Sherbrooke Drive, Kettering, Ohio, 45429 April 17, 2009 Steven P. Harsman, Director Montgomery County Board of Elections 451 West Third St. Dayton, Ohio 45481 Dear Director Harsman: This is in response to the letter dated April 7, 2009 sent to you by Secretary of State Brunner conceming my residency. In that letter, the Secretary advised that she would hold the decision about my residency "in abeyance." The next day, the Secretary sent a letter to me asking that I submit to her certain specified documentary evidence for consideration. First, let me say that I have voluntarily and fiilly cooperated with this Board every step of the way. With this letter I am continuing to do so. I respect this Board and the duties that it must carry out. However, I must strenuously object to the unprecedented manner in which my situation is being handled and the extraordinary length of time this has taken. No formal complaint, application, or protest has been filed pursuant to R.C. 3503.19, 3503.24, or any provision of law. Had that occurred, a formalized, statutory process for resolving the residency issues would have taken place on an expedited time&ame. None of those timeframes or procedures was accorded to me. On the contrary, I have been subjected to more. hearings, more requirements and more time than any other- voter whose residency is challenged--even when that challenge is raised through the appropriate procedural channels. If I were any other voter appearing at the polls, I could cast a regular ballot simply by just showing a drivers' license. If I lived in a homeless shelter, I could register to vote from there, even though I had just moved in and had no intention of staying for any prolonged period of time. If I were a college student, I'd be given latitude to vote from my college address or my home address. Perhaps most baffling is the treatment a$orded recently in the residency issues raised before the Morgan County Board of Elections. In that situation, the Secretary broke a tie in favor of an elector with a far more tenuous fact pattem and at the same time that questions about my residency were first being raised. In the Morgan County matter, the elector at issue spent only one night in five years at his Morgan County home. He testified, as did I, to his intent to reside in Morgan County and testified that his absence from the county was only temporary. In the tie breaking letter on that case, the Secretary did not hold her decision in abeyance. She did not demand additional documentation. hi fact, there does not appear to have been any documentation presented in that case at all. Rather, the Secretary gave deference to the Husted Residency Issue April 17, 2009 Page 2 of 4 testimony of the elector and ruled in favor of the Morgan County elector based upon his testimony ielated to his intent. We have nothing less here. Iri fact, in the Morgan County matter, the Secretary's tiebreaking letter indicates that one hearing was held, and less than two months Iater, a fmal decision in favor of the elector was issued by the Secretary. Here, ahnost four months has elapsed since the first hearing and more than six months has gone by since the initial "inquiry" to this Board. This Board has held two meetings, and willnow apparently hold a third. And we are still not finished. I must also object to the catl for more evidence in the face of the record before this Board. No one came forward to testify besides me. The record is completely devoid of any evidence to undermine my testimony. Despite the Secretary's reference to water bills in her tiebreaking letter, these bills were never introduced into the record, authenticated, or presented to me for review by this Board. Rather than rely upon the uncontroverted evidence ah-eady in the record, the Secretary has shifted and increased the burden on an elector in my case. Apparently, the 'Secretary looked outside the record in making her decision, now seeks documentation and must believe that to be an appropriate and lawful review. I do not agree. While I am surprised that the Secretary would look outside the record, I am offended that she asks for additional documentation to be presented to her and her alone. I do not believe that her statutory authority allows her to seek out and use evidence that is not available to the rest of this Board. As such, I present this evidence to this Board and ask that you consider the evidence before you with an unbiased and objective eye. I ask you to reach a favorable resolution quickly and put an end to this inquiry. Finally, I continue to assert that the Ohio Constitution.:: and Revised Code Section 3503.02(G) fix the place of my residency at the place I resided when I entered state service. It appears from the transcript that the Prosecutor never squarely addressed the question presented to him by this Board. Rather, he simply ruled that the statute was ambiguous and could be interpreted in different manners, a point with which I disagree. Nor do I agree that, to the extent any ambiguity exists, it should be construed to disenfranchise a voter. This is a question of law that does not require additional evidence to resolve. The Secretary states that I "declined the opportunity" to submit records to this Board. (April 8, 2009 letter.) At the same time, she admits that the Board withdrew its motion to seek additional documentation and acknowledges that no subpoena was issued. (Apri17, 2009 letter.) I was never asked to provide documentation, nor did I ever "decline the opportunity" to present documentation. Despite the many objections and reservations that I outline above, I am continuing to cooperate and am producing the records requested. There are no surprises. The documents are entirely consistent with my swom testimony. In addition to the testimony previously given, I appreciate the Board's consideration of the attached_ Husted Residency Issue April17,2009 Page 3 of4 Again, I urge this Board to consider my sworn statements in addition to, and in Hght of, the attached documentation. I live in Montgomery County. I intend to continue to reside there. To the extent I am not in the county, it was only temporary, as a result of my service to the state and to the residents of my district, and always with the intention of retmning. Very truly yours, cc: The Honorable Jennifer Brunner Husted Residency Issue April 17,2009 Page 4 of 4 INDEX OF ATTACHMENTS Tab 1. A copy of my driver's license, listing my residence in Montgomery County. Tab 2. A copy of a bank statement from the Dayton Air Credit Union in Montgomery County. Tab 3. Statements from Social Security, Deferred Compensation, and Davis Funds all showing the Montgomery County address. Tab 4. The general warranty deed that shows ownership of the Kettering property. Tab 5. Dayton Power & Light spreadsheet showing electric usage for the last five months (as available on the DP&L website. Tab 6. A copy of a recent cable bill at the Kettering property. Tab 7. A sample of records showing ongoing repairs and maintenance for the Montgomery County house. Tab 8. Evidence that property taxes have been paid in Montgomery County. Tab 9. Pay stubs evidencing current employment in Montgomery County. Tab 10. Pay stubs from state service showing the Montgomery County home address. Tab 11. PERS statement showing the Montgomery County mailing address. Tab 12. A copy of the most recent financial disclosure from showing home addressed listed as Kettering, current employment by the Dayton Chamber of Commerce, and banking relationship with Dayton Air Credit Union. Tab 13. Records showing vehicle registration in Montgomery County, and noting purchaser of vehicle in Montgomery County. Tab 14. Documents supporting church membership in Montgomery County. Tab 15. A small sample of the mail received at the Montgomery County address. 885 ACCOUNTNUMBER PAGE ^ PO.Box292980 s 1 DAYAIR Kettering, Ohio 45429-8980 • C R I D I T Y N 1. O N 01MAY07 31MAY07 www.dayalr.org. ^ - - STATEMEN(.PERIOD - FROM TO Phone inquiries to: 937-643-2160 G JON Because you just need the money! . Whether it-'.s a car, jet ski, engageinentring; or a.vacation..., -Day.Air:has a loanto suit youi:.needs..: Ask us about all of.Day Airs.low rateloans. today! I NOTICE See reverse side for important information MAIN - ' . 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International Stock Funds Consider these helpful options: Am • Select a single LifePath fund, Small-Cap Stock Funds 4111111111116 which is automatically diversified and re-balanced. Mid-Cap Stock Funds qw • Use our web based "Planning Tools" to help allocate among Large-Cap Stock Funds 11111111111110 investment options. Bond Funds • Call a Program Account Executive for a personal Stable Value •^^ discussion about your account. Total .. ^ (see page 3 for moreinformation on asset allocation) 1-677-644-6457 • www.0hio457.org MerroT6yndh Agreement Regarding Your Securiiies Aceouat aud Other impottant Informatinn Cost Dan/Realized Capital Cains.& Lossesi Cost data and Realized Capital Gains/Losses am ro^dded for You, the Client,and w g Merrill Lynch Pierce Fentier & Smith Incorporated (MLPF&S) a registered infon'tutional pur poees only. P3ease review for accurary. MLPF&S isnot ccsponsi6le for onuttedpor restated broker-dealer and wholly-owned sdbsi'diary ofBankt)sof.A in Cotporation, agee as fo e(lows: data. Plase consult your tax advisor to determ's[te the tax consequences pf your securitfes transactions. Your (1) We will direct youf^ order for gn equity or opuon rouv t a routing system to what is xp ected to statement is not an offldal accounting of gamsQosses and we do or re^p ort gains/losses to^ the IRS. Pleasc 6cthebestexeeutmntenuesforthat.equttyoro fidu. * refv to your rtcords, tnde confinnanons arid your CtonsolidatedaTa ^s Aeporzin Statement (Form 3099). (2) Exupt for 0 8419 . - . .. . ^ . ,'^,i ..:. i1 of 12 77341455005790000a N. 3ulactc . ^ ^00B1052 005790 ^. Primary Account 666•52X14 TOTAL MERRILL" JON HUSTED 148 SHERBROOKE DR. n YOUR MERRILL LYNCH REPORT July 01,-2008 - Ju ly 31, 2008 DAYTON OH 45429-1742 PORTFOLIO SUMMARY July 31 Net Portfolio Value 4910011& Your assets "Mina !'r Your liabilities NeedlnvestmentGuidance? 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Clickthe'help" tab at SMART SOLUTIONS: INVESTMENT IDEAS FOR CHALLENGING TIMES the top of the screen once you log in: Even in today's economy, there are always smart places for your.money: We .: . brought together some of the best minds in investing, politics and industry t6 + sharethoughtsonthecurrentmarketVisittotalmerrill.com/smartsolutions: ,. . 024 8419 10f11 0108903 007035_, P.O. Box 8406 Boston, MA 02266-8406 October 26, 2007 Page 1o( 1 @ www.davisfunds.com @ 1-800-279-0279 STATE STREET B K& TR CUST CESA JON HUSTED(RIIFBO , ALEXHUSTED(MINOR). ^InvestmentRepresentative 148SHERBROOKEDR BepNameSCOTTFSAAD^. DAYTDN OH 45429-1742 Rep Number 8419 'Dealer.-..^. 0010101 ; ^ - DDOL'42 .,-Brarieh` 666' ...... Dealer MERRILL LYNCH )Juiririu^uiu^ri)rimnl)inriiir,iirir)rir,i(iririiuri 40 N MAIN ST STE 2600 OAYTON OH 45423-1008 Davis Nevv York Venture Class A Fund Number 425 Account Number S Coverdell ESA STATE STREET BK & TR CUST CESA JON HUSTED (RI)FBO ALEX HUSTED (MINOR) Account Transactions Trade Dollar = Share = Number Total Date Transaction Description Amount Price of Shares Shares Beginning Balance aWAMP 10/26 2007 PARTICIPANT CONTRIB. 10126 SALES CHRGE PERCENT4.76 Ending Balance Please note that due to rounding, the sales charge percentage reflected is an approximate value. See the prospectus for actual sales charge information. ------....- ...... Additional lnvestment Coverdell. ESA : qse this form for additional investmentsto this account Davis New York Venture Class A. • Makeyourcheckpayableto'DavisFunda.' . • ' ThirdpanyahenksareNOTaecepted. AccountOwnerfs) TATE STREET BK &TR CUST CESA Wrilethefund&accountnumberanyourcheck - ' JDNHUSTED(RI)FBD - ALEX HUSTED (MINORI Making Changes ta Your'Account7 148 SHERBRDOKE DR Q Pleasecheckboxatleftandrfoteanychanges . undNumber 26 DAYTDNOH 45429-1742 toyouraccauntonthebackofthisform. AccountNumber DAVIS FUNpS --^Contributi4nType -- - InveslmentAmount CuventYear Previous Year Dairls POBOX8406 PARTICIPANTCONTRIBf]TION $- • . 02099CM0 BOSTON MA 02266-8406 ROLLOVER - ^ . ' '•^_$_ iiiurrri,)uiriiiim) Tatallnvesnoent . $_ {} 0 q 00D000D 002222214185 0000425 ^c..n:ixu..eseonomnanDiamnmx.rnw^sn iswmrmouisisos , 0 www.davisfunds.com 0 1-800-279-0279 Investment Representative >00778 56479&5 001 008174 SCOTT F SAAD STATE STREET BK & TR CUST CESA JON HUSTED (RI)FBO MERRILL LYNCH 40 N MAIN ST STE 2600 ALEX HUSTED (MINOR) 148 SHERBROOKE DR DAYTON OH 45423-1008 DAYTON OH 45429-1742 Portfolio Value Beginning Value on 01/01/2008 + Purchases ^ One of the joys of the Holiday Seasbn is the + Income Distributions opportunity to say thank you, and to wish you the ^ very best for the New Year. Withdrawals Change in Value ' As you review your statement, please contact Ending Value on 12/31/2008 Investor Services with any questions you may have. You may qualify for a reduced sales charge on mutual fund purchases of Class A shares. Additianally, shareholders who sell Class B or C mutual fund shares may pay a contingent deferred sales charge. Please refer to the current Prospectus, Statement of Addltional information or contact your financial advisor for information on charges and other fees, Breakpoints, Letters of Intent, Rights of Accumutation or the Subsequent Repurchase Privilege. Fund Summary Your Fund and Total Share Total Account Numbers Shares Owned x Price = Market Value Retirement Accounts Davis New York-Venlure Fund Class A 4^^ dim womR Davis New Yodc Venture Fund Class B ^ 4m mono Total Market Value Your retirement account balance as of.December 31, 2008, is being provided to the IRS, as required by law. Retirement Summary Current Year Contributions Prior Year Contributions Rollover Salary Deferral Plan Type Employer Participant Employer ,`Partlclpant Fo,IRAPlansonly. Fo,5D3C$SlmpleFfaw Educatlon Savings Account 41P w It is important to review all account transactions and promptly report any discrepancies to Davis Funds and to your broker dealer firm. Please re-confirrn any oral communication in writing to further protect your account. Feel free to contact Investor Services with any questions you may have. RIt5:1)1' R.E `LtAF)LE FNVEBTrN f^i`'. et74-DAVISRDLL age o rtairtbFtd 81r29 • SMIIJHRV 24 2007 <:ENt:nAL WARftANTY DEED KRRL ^. ittlfH CUUNTV hI[IITDR Canv/Tran i: ks87 f.00 GENERAL WARRANTY DEED* JON A. HUSTED, MARRIED, of Montgomery County, Ohio, for valuable consideration paid, grant(s) with general warranty covenants, to JON A. HUSTED, TRUSTEE ( OR SUCCESSOR TRUSTEE ) UNDER THE AGEEMENT OF TRUST FOR JON A. HUSTED, DATED NOVEMBER 27, 2006 , whose tax-mailing address is, the following REAL PROPERTY: Situated in the State of Ohio, County of Montgomery and in the City of Kettering and bounded anddescribed as follows: Being Lot Number Seventy Four (74), of CASTEL HILLS SECTION TWO, as the same is numbered and delineated upon the recorded plat thereof, of record in Plat Book " W ", page 97 of the Plat Records, Recorder's Office, Montgomery County, Ohio. PROPERTY ADDRESS: 148 Sherbrooke Drive, Kettering, Ohio 45429 PARCEL NUMBER: N64-6-15-10 •^^^ ^ SUBJECT TO RESERVATIONS, CONDITIONS, RESTRICTIONS AND EASEMENTS OF RECORD IF ANY AND TAXES AND ASSESSMENTS HEREAFTER DUE AND PAYABLE. Prior instrument Reference: Microfiche 93-0468, page A05; Mircrofishe 02-165, page D04 of the Deed Records of Montgomery County, Ohio. Tina L. Husted, wife of the Grantor, releases all rights of dcwer therein Executed this 19th day of January, 2007. LI-2//^ -&-? u-m (iti) ^, STATE OF OHiO Tina L. H^ted COUNTY OFYAkW4W, FRANKLIN ss. BE IT REMEMBERED, That on this 19th day of January, 2007 me, the subsoriber, a Notary Public in and for said State, personally came JON A. HUSTED AND TINA L. HUSTED, MARRIED the Grantor(s) in the foregoing instrument, and acknowledged the signing thereof to be their voluntary act and deed. IN TESTIMONY THEREOF, I have hereunto subscribed my name and affixed my official seal on the day and yearjAsaforesaid. -(Notary Public) blic-State of Ofiio mmission Expires: ROIANN L. DUWO N,j,f PuWE, $IZIe of 0111c MyCanm"issmEtOM 130-2010 m ^^ [q gis inst+ument was preparetl by: GRANTOR + NtgO 1 8 lyW p,v1iY, aM XurtEY[ SunVc 00'q^ n i^ o The Dayton Power and Light Company ______AMOUNT DUE ------AMOUNT PAID LATE PAYMENT PROMPTPAYMENT NO PAYMENT DUE 000009221 01 AV 0.324 000045 LTR DUE DATE FOR PROMPT PAYMENT JON HUSTED ANN HAMILTON 148 SHERBROOKE DR APR 02 2009 DAYTON OH 45429 1111 JgIo 111 1111111ji„LiIIIIInilillill.., I PAGE 1 OF 2 0000084125301206300000000000000 -PLEASE RETURN THIS PORTION WHEN MAILING PAYMENT SO ADDRESS SHOWS THROUGH WINDOW- ______------______1FAME/6EflU1C.e'EUSE(^J^tT.^ YOUR ACCOUNT JON HUSTED NUMRER^ EMERGENCY SERVICE ANN HAMILTON (877) 40UTAGE 148 SHERBROOKE DR PRESENT ENTIRE (877) 468-8243 DAYTON OH 45429 BILL WHEN PAYING IN PF.RSON qCCOUNTINFCAMATION (937) 331-3900 NEXT METER THIS BILL DUE DATE FOR READING DATE MAILED PROMPT PAYMENT LATE PAYMENT PROMPT PAYMENT APR 07 2009 MAR 11 2009 APR 02 2009 0.00 "rR SERVICE PERIOD METER READINGS SERV FROM TO DAYS PRESENT PREVIOUS USAGE AMOUNT EL FEB 06 MAR 09 31 61840 61643 197 4011111^ YOUR ACCOUNT BALANCE LAST MONTH loom PAYMENT RECEIVED MAR 05 411111^ BALANCE FORWARD 4011111111111111, TOTAL AMOUNT BILLED FOR THIS MONTH dlllll^ YOUR TOTAL ACCOUNT BALANCE 4momm THANK YOU FOR YOUR PREVIOUS PAYMENT PRICE-TO-COMPARE: IN ORDER FOR YOU TO SAVE MONEY, A NEW SUPPLIER MUST OFFER YOU A PRICE LOWER THAN DP&L'S PRICE OF $14.67, OR 7.4 CENTS PER KWH, FOR THE SAME USAGE THAT APPEARS ON THIS BILL. YOU MAY CONTACT DP&L FOR A WRITTEN EXPLANATION OF THE PRICE-TO-COMPARE MESSAGE. !!!WE MAY REPORT INFORMATION ABOUT YOUR ACCOUNT TO CREDIT BUREAUS. LATE PAYMENTS, MISSED PAYMENTS, OR OTHER DEFAULTS ON YOUR ACCOUNT MAY BE REFLECTED IN YOUR CREDIT REPORT.!!! 000000000000 Iilll l illl l llll l llll l llll ll ll M 03112009-C0058-F15011-BILL-BAR Jon Husted 148 Sherbrooke Drive Dayton, Ohio 45429 ConsumnGon (kwh) Cost 1 April 229 2 March 197 3 February 256 4 January 266 5 December 232 I oouou9-ooa0e9L loz /^TIME WARNER 10303 074618002 3001 ` CABLE Pape:1 of 2 Service Period Due Date Amount Due 03/05 - 04/04 03/25/09 sow Account Summary 4wgunt #: Aw"F Customer Code: 5608 Service Address: 148 SHERBROOKE DR HOW T0 REACH US - --- DAYTON, OH 45429-1742-48 CustemerServioe PREVIOUS BALANCE 1(937)294-6400 or 1(800)425-2225 Action Line PAYMENT(S) 1(866)408-2225 MONTHLYCHARGES Web Site www.timewamereable.com TAXES AND FEES Total Amount Due CUSTOMER CARE CENTER The Village at Dayton Mall (Across from Borders) 2834 Miamisburg Centerville Rd Payments received after 03/05/09 will be reflected on your next statement. Dayton, Ohio 45459 10:OOam-8:OOpm Monday - Saturday Thank you for being our customer! We look forward to bringing you the 12:OOpm-6:00pm Sunday latest in technology and providing you with !ocal customer service - 24 hours a day, seven days a week. Visit www.timewamercable.com for more information on a!l of our products and services. Don't have Digihal Cab!e7 Check out what you're missing. Access to over 200 channels, including 48 Music Choice Channels, Interactive On-Screen Program Guide, access to Movies On Demand & the most popular cable programs on your schedule with Free On Demand. Call today for more information or visit our website at www.timewamercab!e.com. See Page 2 For Account Details rv^WAR021-P01001 (01N6) zaas ______Please detach and enclose this coupon with yourpaymenl. TIME WARNER Account Number CABLE Payment Due Date Total Amount Due P0 BOX 429542 03/25/09 CINCINNATI, OH 45242-1812 Now "Please allow 7 - 10 days for delivery antl paymem prncessing. See reverse side for more convenient payment options. ^ I"III'^I^I ^I^I^ ^I^I) IIIII II'II IIIII IIIII'IIII ^^'I IIII TIME WARNER CABLE-SWO DIVISION JON HUSTED Yoo03n9 Nan-G 1 ez- 148 SHERBROOKE DR P0 BOX 1060 DAYTON, OH 45429-1742-48 CAROL STREAM IL 60132-1060 103030010030746180023200008051060 JOB INVOICE 0,30 4fS2(Z DATE O E ORDER TAKEN BY TO r PHONE NO. CUSTOMER ORDER # ^ ^[lS'j2zL^ S ADDRESS JOB LOCATION JOB PHONE STARTING DATE l^rO ATTENTION TERMS OTY. MATERIAL UNIT - AMOUNT DESCRIPTION OF WORK iC'-dEOWx U6 6'1`^vi4l0- / i S MISCELLANEOUS CHARGES. G^,^'G,^z! c f^Z I 2z^ C'LzI C.IryG /-/ C, f7 --^ 96^ro616. pe-'^na '/ 1c&5-& W,900 62/3 0/! (W A'(l MAl wCc s-0 a f0-j-oe-inl c ,S-0 Za LABOR HRS RATE AMOUNT A&yu -f -^/^j ^-' &-zn6-T 6.n-1!)o12- lOt-VY6116 ^4Z^h9CJZ t 2YcJ ^r t^ (tiu S C J^'i ^^ 4olL^ ^fF^ i + C.MJvO/t t ^^L^ WORK ORDERED BY DATE ORDERED TOTAL MATERIALS DATE COMPLETED TOTAL MISCELLANEOUS ; CUSTOMER APPROVAL fz61cl'-. SIGNATURE ^c *^ W AUTHORIZED SIGNATURE _ aedams NC2817 JOB INVOICE SPECIAL SERYICES CUSTOMER INVOICE - Continued Last Name: AMES Page 2 of 7 N 0. ^Ub4-10VUby WSTAI:IAT(t^^ ^ i ICo remrdl. : .. : : ' REF 6101 TiNA HUSTED INSTALL LABON CRAR6E ADDRESS: 148 SHERBROOKE DR TRIP CHARGE: ^ CITY: KETTERING STATE: OH ZtP: 45429 CREDIT FOR DEPOSITIMEASURE COUNTY: MONTGOMERY SALES TAX RATE: 6.500 TAX: Merchandise • N LABOR - N f' t PHONE INSTALLER SPECIAL INSTRUCTIONS:SAATA CECELIA GOLD, EASED EDGE, ORUP IN SINK BASIC IfISTALLATlON LABON INCLUDES: 1. kn home inspection to verity the layout, rneasurements, 7. Finished exposed ends Iflat finish no edge detaill special installation requirements and templating. examp]e: next to range or refrigerator. 2. Delivery and normal instatlation of countertop. 8. Eased polished edge on backsplash lall exposed edges}, ?. Ir•.r.L._^ fauc^7 hd^.t.ip^n:r ri.q` tc.4 '-I. I:)CieJtlS'I SInR U: I f.....:^iliji CUIUI:I iJ11pOa5Mtld fUy; .... $lnei..ikild eaSC.i o6(fz I:IJ:UdUd (EU.iLP 10 21:i1 U( mauntf per project. EdgaN 24-3cm) from Group A edges. 5. Wall support cleats as needed at corner cabinets. 11. FinaL clean up of installation related debris and 6. Eased or radius corners up to 3/4" max. _ jnbsRe. UNLESS STATED ABOVE THIS INSTALLATION DOES N OT INCLUDE: THE FOLLOWING OPTIONS AR8 AVAILABLE BY ESTIMATE ONLY Cut around post or odd shapes Support material fm overhang (required for overhangs oi 6' Custom edges ondaacksplash or morel Disconnect or reconnect of plumbing or elactricaf Window silfs( garden windows & pass throughs Repair or afterations to existing cabinetry. Cabinet bump outs ' . . SPECIAL NOTES: ' No work will be done on the weekends or holidays. canceltation fees and for any missed scheduled ' An adult must be present at the time of instalL appointments with the install. The instager will contact the customer within XX business • Granite is composed of natural material, ceior variations, days after receiving the paid purchase order to scheduo veigning, minerat streaks are common, This must be the templatelmeasure appolntment. reviewed with the customer. • Existing countertops must be removed prior to templating. ' Customer should be prepared to be without full use of sink • Custamer is responsible forpayment of the appointment and app fiances installation. during EBb Of 1YSXlfll 11. Page 2 of 7 No. 3854-100869 CuStomef Copy .. zo vV lr VIYICn .RrlJtyc - IAIItiIuBO Last F1ar176: AMES Paga 3 of 7 NO. Jt5b4' 1UVk;by - ^:^. REF>7182 BASiC tNSTALLATION LABOR: SKU '.. .. DESI"R[PT10iV' a r" r'S ` ( ^ `^y pY [^ {v s, .:...... , a.a ..: n...... > , r ... .e.e`: ...... ,.^ .,...... V Mf.x . ,....^^ - ._^^^ 42-062 GRANITE COUNTERTOPSINATIONAL) 1.00 EA N $0.01 $0.01 DPTIDNALLABBRSELECTEDINCLBDES: t -.`T :-rx ^+st tx Yx ....xas .3 ''...lla'3 '.d) ^ &"^" .•NY3 r Lx &II 8 ^. A.,.. , ...,« :, . ^fav . 9^x'^.^o..x. , ...R...S k^iotx . ..' , ^` 0"vt^^..^ #0 r...L^:^:1^"' x ...... _> .. ^cc^...: 05 ,,.GRANITE COUNTERTOPS / BACKSPLASH 1 118" (3CM) GROUP A! 7.50 SF N $59.00 TINA HUSTED IYSTALL LABOR CHARBE: 111111=110 ADDRESS: 148 SHERBROOKE DR TRIP CHARGE: CITY: KETTERING STATE: OH ZIP: 45429 CREDIT FOR DPDSfTlMEASURE: i CDRNTY:MONTGOMERY SALESTA%RATE: 6.500 TAX:Merchandise- N LABDR• N r r ^ PHDNE: INSTALLER SPECIAL INSTRUCTI6NS:VERTE BUTTEflfL'i, FREE EASE9 EOGE TREATMENT, DRGP IN SIAK " BASiCINSTALLATIONLABDRINCLBDES: 1, In home inspection to verify lhe ]ayovt, measurements, 7. Finished exposed ends Iflat finish no edge detaill special inslallation requirements and templating. example: next to range or refrigerator. 2. Owwdy btrJ Iw,i^lal A15tuucuull Ul ^.GJiitml6y. G. f;u],4 VuilSiicJ CdifV' oil La,:kSpI55i1u^i:>V^+a^„ calycbl. 3. Includes taucet hole drilling [up to 4 holes). 9. Su6top m support strips. 4. Includes 1 sink or 1 coaktop cutout [unpolished top 10. Standard eased edge included IEdgep 10-2cm or mounU per pra)ect. Edged' 24-3cm} from Group A edges. 5. Wall support cleats as needed at corner cabinets. 11. Finai clean up of installation related debris and 6. Eased or radius corners up to 3/4' max. jobsite. UNLESS STATED ABOVE THIS INSTALLATION DOES NOT INCLUDE: THE FOLLOWING OPTIONS ARE AVAILABLE Hy ESTIMATE ONCY Cut around post or odd shapes Supporl material for overhang (requ3red tor overhangs of 6" Custom edges on backsplash or morel Disconnect or reconnect of plumbing or electrical Window sills/ garden windows & pass throughs Repair or alterations to existing cabinatry. Cabinet bump outs SPECIAL NOTES; ' No work will be done on the weekends or holidays. cancellation fees and for any missed scheduled An adult must be present at the time of install. appointments with the instalt. • The installer will contact the customer within XX business - __ _ • Granite is composed of naiural material, cobr variations, •r• CO:qTqNUfie 8^ ^1ff PA^'• ' :'.: Page 3 of 7 No. 3854-100869 C„Stomer Copy JOB INVOICE ^-kp-x) TO MATERIAL UNI7 MISCELLANE OUS anJ ,32C4? .?; ^.:. :.• . WORK ORDERED 9Y TOTAL NiATER1Al.S ;USTOMER APPROVAL SIGNATURE 1UTHORIZED SIGNATURE W-d°^"- NC2817 JOB INVOICE 04/26/2007 THU 0E:27 [TX/RX NO 7201] Id002 t+M01U11^ M^1 Mo AAMIMIMM^t MT•: /i i^ cb I •awwrv w: ^aw www r^ae w: a^orur sr: suorv"MM MIAU W1 we ^ wr ^MM f/WUYM* Kf6ft7MI4v Ma 0!p Cw G..i ider o 36 A d75 3 o Zu^,o Fdr65 60 HoI.^L^ Ft6JG/1-/NGr . ^.C?o s^-G. O. EOO- G^v^vas^t BoA^.o ^^s F ^ o 7Pr.3 5'&T ^m^T ZO o C^ L a Lf i ^ 7-1 4-4 avv S^ 3^ ^ Mv Puu.Ne GrFi o Y Wkc-L Lvr^2x o ^ ^,o Af oll w ^oa ^RO CW.t/Tu,'L?>F's _ / a o 6coc.^ 3200 ViS!jaSaL Jc^E F/ic2e ^ '0000 !t 46^ AJG- ao 9o F,tlT .i 4113•J0Av G/Af-L _ n!s vci^ r7 p^ C^ CL^ /fN tJP ^o /l^roo^c W4ttPAf^^ NN/ N T71V G. 2'o So -- ^ 06% " Soa'c^ m f firLTOT OTAI fOC MMOQ . CON. a M. 0 2_9% _{1 u rCt WATMWAC 7C. O.T. •^.sM ^w_ I ru raa iau^rr^^ n^^ 5 a TAGtOC0110 NMMA' .._Y fAl roe ovowdae v^tu wst^ ^o- TAl qA00MTMIQ► TOTA6 MNM OMY fIRTO'T - ow.• ...M,....^ .Ya 5 20 .^ MONTGOMERY COUNTY tI REAL ESTATE TAX BILL CAROLYN RICE, TREASURER MONTGOIVIERYC o U N T Y FIRST HALF 2007 N64 00615 0010 KETTERING CITY-KETTE N64 00615 0010 HUSTED JON A TR 148 SHERBROOKE DR 148 SHERBROOKE DR DAYTON, OH 45429-1742 HUSTED JON A TR 74 CASTLE HILLS 2 99.5900 RESIDENTIAL 32,520 95,780 128,300 LAND IMPROVEMENT TOTAL AVOID 10 PERCENT PENALTY PAY ON OR BEFORE FEBRUARY 13, 2008 If you need a stamped receipt, return entire bill with a self addressed stamped envelope. No receipt will be retumed unless requested. YOUR CANCELLED CHECK IS A VALID RECEIPT ^t^- .^ w^, ^^^^^^•^,^ •-••-----•••- - 5.< -•--•- ••••-•-•- •••-••° •• -'-• •-•---•-•• ------^ - - . ^ MONTGOMERY COUNTY REAL ESTATE TAX BILL CAROLYN RICE , TREASURER MONTC oUNTYOIVIRRY SECOND HALF 2007 N64 00615 0010 EAMUINGaw KETTERING CITY-KETTE N64 00615 0010 HUSTED JON A TR 148 SHERBROOKE DR 148 SHERBROOKE DR DAYTON, OH 45429-1742 HUSTED JON A TR 74 CASTLE HILLS 2 99.5900 .33841 RESIDENTIAL LAND 32,520 65.8877 IMPROVEMENT 95,780 2,235.80 TOTAL 128,300 -756.62 350.56 WA FMAm aIM; -147.92 LAND 11,380 -36.98 IMPROVEMENT 33,520 133.58 TOTAL .00 788.00 44,900 LAND 10.75 IMPROVEMENT TOTAL .00 AVOID 10 PERCENT PENALTY .00 PAY ON OR BEFORE .00 .00 JULY 16, 2008 If you need a stamped receipt, return entire bill with a self addressed stamped envelope. No receipt will be returned unless requested. YOUR CANCELLED CHECK IS A VALID RECEIPT •---•-----'- ^<•---.r------•------.....-•------•-•---..°...-c----••------•-----^------•-----•----• HORIZON PAYROLL SERVICES DAYTON AREA CHAMBER OF Fifth Third Bank COMMERCE Dayton Ohio 1 CHAMBER PLAZA DAYTON, OH 45402 Check No. DEPARTMENT DATE 000200 02/13/2009 -AMOUNT- **^***,^*************** 000200 See Net Pay Below PAY3 JON A HUSTED The 148 SHERBROOKE DR vtler KETTERING, OH 45429 Or ** NON-NEGOTIABLE`^^** ^a 4 ' ^^WF3W^TNM6P U SEGYIRITY FEATURES INCLUDED, DETAILS ON BACK. e moo e:0000000001: 0000000000011. HORIZON PAYROLL SERVICES DAYTON AREA CHAMBER OF Fifth Third Bank 70-2390 COMMERCE Dayton Qhio 719 1 CHAMBER PLAZA 0421 DAYTON, OH 45402 Check No. 006396 DEPARTMENT DATE 000200 02/27/2009 AMOUNT" **********,r********************** 000200 See Net Pay Below 'AY JON A HUSTED . The 148 SHERBROOKE DR der KETTERING, OH 45429 or ** NON-NEGOTIABLE`^** . . iOtb'WiiHHE^ 8 SECURITY FEATURES INCLUDED, DETAILS ON BACK. LU ^ 4oooooaDao1: o000000000011• Pay Inquiry Page 1 of 2 New Window. I Help I Customize Page. I 1tep!a "DAew Paycheck ^ MN HUSTED 4*0 Pay: 1111 111 O'Noompany: State of Ohio ! y- gin Date: 01/01/2007 IWAdtMess: Pay End Date: 01131/2007 30 E Broad St Check Date: 01/02/2007 Rw;`...W Columbus, OH 43215-3430 aw*wa Differeni_Paycheck Genera **`WtUAfY JON A HUSTED Employee ID : Empt Rcd: 0 Address: 148 Sherbrooke Dr Pay Group; Monthly Legislature Kettering, OH 45429-1742 Department: REP 100000 - Members Location: Riffe Tower 12 Job Title: Elected Official Service: 6 Years 1 Months 6 Days Pay Rate: 41mom Annual Longevity: 4Years 1 Months 4 Days Barg Unit: 31 In Unit Group Life: Cert Status: Unclassifi Seniority Credits: 0.0000 i Next Ste p Date: Business Unit: GLASM Institutional Credits: Tax Data Fed Marital Status: Aft* OH Marital Status: Fed Allowances: OH Allowa nces: 4 Fed Addi Percent: ^ OH Addl Percent: Fed Addl Amount: ^ OH Addi Amount: owt --- .--- ...... _...____. Gross Earnings ^ Fed Taxable Gross ^ Total Taxes[ Total Deductions[ Net Pay Current am IIIIIIIIIIIII0 111111111111111b Earnings Taxes Des cription Amount Descriptio I Hours Rate Amou Reg Hrs Fed Withholdng lom I Fed MED/EE OH Withholdng OH KETTERING Withholdng ^ Total: Total: EXHIBIT I lf httns://hcm.oaks.ohio.eov/Dsc/hcnrd internal/EMPLOYEE/HRMS/c/ROLE EMPL,OYEE.... 4/I6/2009 Pay Inquiry Page I of 2 New Wndow I He^ I CustomizePage I„^ Vie*p&ycheck liwy,WiG d"04 JONMOTED Net Illvj4kow^ /!'!'.It^ r Comaw: State of Ohio Pay Be n LS y. 12/01/2008 Addr,^ Pay EndDate: 12/31/2008 OM-0,416 E Broad St Check Date: 12/01/2008 Columbus, OH 43215-3430 View aDifferent Paycheck General Name: JON A HUSTED Employee ID: 0 Address48 Sherbrooke Dr Pay Group: Monthly Legislature Kettering, OH 45429-1742 Department: REP100000 - Members Location: Riffe Tower 12 Job Title: Elected Official Service: 8 Years Months 6 Days Pay Rate: vmm^ Monthly Barg Unit: 31 In Unit tongevity: 6Years Months 4Days Group Life: VAIMMONOW Cert Status: Unclassifi Seniority Credits: 0.0000 Next Step Date: Business Unit: GLASM Institutional Credits: Tax Data Fed Marital Status: 00 OH Marital Status: Fed Allowances: OH Allowances: Fed Addl Percent: OH Addt Percent: Fed Addi Amount: OH Addi Amount: ` Paycheck Summary Gross Earningsl Fed Taxable Grossl Total Taxes' Total Deduction>s Net Pay Current mx^ lvowlb Earnings Taxes Description ^ Hours^ Ratel Amount Description Amount Reg Hrs 111^ Fed Withhaldng ^ Fed MED/EE OH Withholdng OH KETTERING Withholdng ^ Total: otal: som sow" I 1 https://hcm.oaks.ohio.govlpsc/hcprd_internal/EMPLOYEE/HRMS/c/ROLE EMPLOYEE.PY [C.-- 4/16/2009 Pay Inquiry Page 1 of 2 New Window I Help I C_ustomizePage I „^ Viavoeycheck JON+I,"TED Net P^?`^%W=NP ow Com^ny: State of Ohio Pay Begin Date: 01101/2009 Addr^^! Pay End Date: 01/31/2009 41111^0 E Broad St Check Date: 01/02/2009 Columbus, OH 43215-3430 View a Different Paycheck 104Mvaa*'w General Name: JON A HUSTED Employee ID: WIENW EWfkW 0 "'.yA4 Address: 148 Sherbrooke Dr Pay Group: Monthly Legislature Kettering, OH 45429-1742 Department: SEN100000 - Members Location: State House Job Title: Elected Official Service: 8 Years 1 Months 6 Days Pay Rate: 490111111111111W Annual Barg Unit: 31 In Unit Longevity: 6 Years I Months 4 Days Group Life: lnw^ Cert Status: Unclassifi Seniority Credits: 0.0000 Next Step Date: Business Unit: GLASM Institutional Credits: Tax Data Fed Marital Status: am OH Marital Status: Fed Allowances: ^ OH Allowances: a Fed Addi Percent: ^ OH Addl Percent: am Fed Addl Amount: #Am OH Addl Amount: ow Paycheck Summary Gross Earningsi Fed Taxabie Gross! Total TaxesI Total Deductions^ Net Pay Current A^ 4ow %W Earnings Taxes Description Hours Rate Amoun 'Description 1 Amount Reg Hrs Fed Withfioldng mmI Fed MED/EE OH Withholdng OH KETTERING Withholdng^ ^ otal: 1110^ Total: j I ^ ^ I llttns=//hcm.oaks.ohio.aov/nsc/hcnrd internal/L-'MPLOYEE/HRMS/c/ROLE EMPLOYEE.PY [C... 4/16/2009 Pay Inqu'try Page I of2 New Window I Help I Customize Pace I ^ Vievrr..:f^ycheck JON li^MED 4t*k Net P**:Xwmo^ Compfg, State of Ohio Pay Begin Date: 02/01/2009 Addre%W PayEnd Date: 02/28/2009 *'^^ E Broad St Check Date: 02/01/2009 Columbus, OH 43215-3430 Vew aDi_fferentPaycheck General Name: JON A HUSTED Employee ID: ^ Emej," 0 #O#WAOW Address: 148 Sherbrooke Dr Pay Group: Monthly Legislature Kettering, OH 45429-1742 Department: SEN100000 - Members Location: State House Job Title: Elected Official Service: 8 Years 2 Months 3 Days Pay Rate: loom"& Annual Barg Unit: 31 In Unit Longevity: 6Years 2Months 1Days Group Life: Cert Status: Unclassifi Seniority Credits: 0.0000 Next Step Date: Business Unit: GLASM Institutional Credits: Tax Data Fed Marital Status: ^ OH Marital Status: Fed Allowances: OH Allowances: Fed Addl Percent: OM OH Addl Percent: Fed Addt Amount: ts OH Addl Amount: Paycheck Summary 1 Gross Earnings Fed Taxable Grossl Total iaxesl Total Deductions' Net Payl Current d^ +gloo 4110^ Noi doolm Earnings Taxes Description I Hoursl Rate: Amount Description Amount Reg Hrs Fed Withholdng Fed MED/EE OH Withholdng OH KETTERING Withholdng Total: Total: I 1 httos:/:hcnt.oaks.ohio.eov/osclhcnrd interna(/EMPLOYF,E/EIKMS/c/RQLE EMPLOYF.F..PY IC-- 4/16/2009 Pay liiquiry Page 1 of 2 New Window I Help I customize Page I„tto Vie^ycheck JON Izli#:TED Net Aq naft a Com%N^ State of Ohio Pay Begin Date: 03/01/2009 Address^ Pay End Date: 03/31/2009 "116 30 E Broad St Check Date: 03/02/2009 Columbus, OH 43215-3430 View a DaerePt Paycheck ^amt' General Name%ftW HUSTED Employee ID: ^ EmpiRcI. 0 Address: 148 Sherbrooke Dr Pay Group: Monthly Legislature Kettering, OH 45429-1742 Department: SEN100000 - Members Location: State House Job Title: Elected Official Service: 8 Years 3 Months 6 Days Pay Rate: NNMIINO Annual Barg Unit: 31 In Unit Longevity: 6 Years 3 Months 4 Days Group Life: Cert Status: Unclassifi Seniority Credits: 0.0000 Next Step Date: Business Unit: GLASM Institutional Credits: Tax Data Fed Marital Status: faM OH Marital Status: Fed Allowances: r OH Allowances: Fed Addl Percent: OH Addl Percent: Fed Addt Amount: ^ OH Addl Amount: Paycheck Summary 1 Gross Earnings Fed Taxab3eGross^ Total Taxesl Total Deductionsi Net Pay P urrent anow SNOW 410W tisoft low Earnings Taxes Description I Hours Rate Amount Description Amount Reg Hrs Fed Withholdng RetroWRtre Fed MED/EE OH Withholdng OH KETTERING Withholdng Total: _ otal: 1- 1 1 https://hcm.oaks.ohio.govfpsc/hcprd_internallEMPLOYEE/HRMS/c/ROLE EMPLOYEE.PY tC.._ 4/16/2009 Pay Inquiry Page 1 of 2 ^.. e^w. Wndow I Help I Customize Page A"WOMO A,Mmw* View Paycheck JON HUSTED Net Pay: 411100M Company: State of Ohio Pay AddreSg^^'^'^ AWMZ Pay End WWya Wq4t0012009 Check DOW",,;w *A*4p1/2009 ap.^0101OEBrZSJ4 Columbus, OH 43215-3430 View a Different Paycheck .:,41,40 Geraeral Nam e:.S',VpAt A H 4ft^&V Etfiptoyee ID: J^ Empt Rcd: Address: 148 Sherbrooke Dr Pay Group: Monthly Legislature Kettering, OH 45429-1742 Department: SEN100000 - Members Location: State House d43i:6^rt^^.i'fk I Job Title: Elected Official Service: 8 Years 4 Months 5 Days Pay Rate: SAIMMO Annual Barg Unit: 31 In Unit Longevity: 6Years 4 Months 3 Days Group Life: IONENIM Cert Status: Unclassifi Seniority Credits: 0.0000 Next Step Date: Business Unit: GLASM [Urtitutional Credits: L Tax Data Fed Marital Status: ORNW OH Marital Status: Fed Allowances: 9 OH Allowances: {I, Fed Addl Percent: aum OH Addl Percent: Fed Addl Amount: aw OH Addi Amount: ------^ r-- Paycheck Suminary ,J Gross Earningsl Fed Taxable Grossf Total Deductionsl Net Pay Current ^o a -40maw YTD a^trwe 411e011111111111116 i► idoom Earnings Taxes YTD Description Amount+ YTD Desciptior, i Houa f ^ate Arnount JJ Ainount Fed Withholdng Reg Hrs low RetroWRtre Fed MED/EE OH Withholdng i ^el OH KETTERING 21111111111111111^ 2^ Withholdng https:: hcm.o^ils.ottio.go^,^psc!ltcprd internal/EIvIPLOYEE/H[LN4SIc/ROLE_EIviPLOYEE.PY [C..- 4/16/2009 Ohio Public Employees Retirement System Personal statement of estimated benefits for Jon A klusted Jon A Husted 148 Sherbrooke Dr Kettering, OH 45429-1742 Your Benefits at a Glance This information is accurate as of December 31, 2008 Traditional Pension Contributions (see pages 4 and 5 for a detaited explanation) Plan Contributions made during 2008 ^ Contributions as of Deoember 31, 2008 Additional Annuity and Applicabie Interest Account Vaiue (see pages 4 and 5 fora detaited explahation) Account Value as of December 31, 2008 Service Credit (see page 5 fora service credit breakdown) Service Credit eamed and/or purchased during 2008 1.456 years Senrice Credit as of December 31, 2008 11.334 years Projected Retirement Your estimated annual pension at September 01, 2022 = This is the earliest date you qualify for a pension based on your continuous full-fime employment. (see pages 6 and 7 for other projections) Health Care Coverage When applying for age and service retirement, OPERS members currently must have at least 10 years of Ohio service credit in the plan to partiGpate In one of the OPERS health care plans. Your eligibility for health care coverage will be determined at the time you appiy for retirement. Please retain thts statement for your records 219576 5BT018427 $40 FILiN,f, FEE THIS STATEMENT IS TO BE FILED IN 2009 FOR THE CALENDAR YEAR 2008 JOINT LEGISLATIVE ETHICS COMMITTEE 2008 Financial Disclosure Statement To be filed in 2009 Please include complete addresses and telephone numbers for both your home and your employer PLEASE PRINT OR TYPE (Dc not use pencil) q tlause Or OSeute DistrlCt # 1. NAME OF PERSON FILING STATEMENT Husted Jon A LAST FIRST MIDDLE INITIAL 2. HOME ADDRESS 148 Sherbrooke Kettering 45429 STREET CITY ZIP CODE Montgomery TELEPHONE NUMBER 937-293-4275 COUNTY 3. CURRENT EMPLOYER (Other than the General Assembly) Dayton Chamber of Commerce 1 Chamber Piaza Dayton OH 45402 STREET CITY STATE 2IPCODE Montgomery TELEPHONE NUMBER 937-226-1444 COUNTY 4. PLEASE CHECK THE APPROPRIATE BOX, AND FILL IN THE REQUESTED INFORMATION. a, MEMBERS OF THE GENERAL ASSEMBLY DURING 2008 OR 2099 0 Elected OR q Appointed to the General Assembly If appointed, what was the date of your appointment It elected or appointed, what are (were) the dates of your most current term: From 11112069 To: b. EMPLOYEES OF THE GENERAL ASSEMBLY OR LEGISLATiVE AGENCY q Designated by JLEC as a required filer Date of employment c. VOLUNTARY FILERS q Name of Agency of Voluntary Filer 1 d. Please disclose the name of any elected office - other then the Generai Assembly - and any state board or commission appointment help in 2008 or 2009; Montgomery Co. Republican Cent. Comm. Financial Disclosure Statement Instructions YOU MUST COMPLETE THIS FORM IF: • You are a member of the General Assembly during 2009; • You were a member of the General Assembly during 2008; • You are an employee of the General Assembly or any legislative agency who has been designated by the Joint Legislative Ethics Committee, or your agency, as a required Fder. FILING FEE: Each form must be accompanied by a $40 FILING FEE (check or money order oniy made payable to JLEC). Campaign funds MAY be used for this fee. If you are, or were, an employee (non-elected) of the General Assembly, or any legislative agency, your aaencv is required to pay the $40 fee. PENALTIES: Any person who fails to file a com lete financia{ disclosure statement by the appropriate deadiine may be assessed a late filing fee of ten dollars for each day the statement is late, up to a maximum of $250.00, and may also be subject to criminal prosecution. In addition, any person who files a false statement may be subject to criminal prosecuflon. FILING DEADLINES: The filing deadline is Wednesday Aprii 15, 2009, nu less one of the following applies: An Incumbent member of the General Assembly whose name will appear on any 2009 Primary Election ba(lot for local office. The filing deadline is th'sty days prior to the Primary Election orApril 15, 2009, whichever is earliest. APPOINTEES TO THE GENERASSEMBLY: Any person appointed to fill a vacancy for an un-expired term in the General Assembly must file within 15 days after he or she qualifies for office. EMPLOYEES: An employee of the General Assembly, or any legislative agency, must file by April 15, 2009, unless you were employed or promoted after that date, then you must file within 90 days after employment or promotion. FOR MORE INFORMATION, PLEASE CONTACT THE JOINT LEGISLATIVE ETHICS COMMITTEE, OFFICE OF THE LEGISLATIVE INSPECTOR GENERAL AT ( 614) 728-5100. THIS IS A PERSONAL FINANCIAL DISCLOSURE STATEMENT. THIS IS NOT A CAMPAIGN FINANCE RELATED REPORT. 2 1. INCOME Complete EITHER Section A or Section B, whichever is the appropriate section. A. IF YOU ARE A MEMBER OF THE GENERAL ASSEMBLY IN 2009 OR WERE A MEMBER OF THE GENERAL ASSEMBLY IN 2008: You are required to list EVERY source of income and must identify the amount of each source of income received in accordance with the following ranges using the appropriate ietter: A. $0 - $999; B. $1,000 - $9,999; C. $10,000 -$24,999; D. $25,000 - $49,999; E. $50,000 -$99,999; F. $100,000 or more. Also, list each source of income received by any other person for your use or benefit, "Income" includes gross income for federal tax purposes and interest and dividends on all governmental securities. You are not required to list the sources of income of your spouse, unless the income was received specifically for your use or benefit. MILEAGE REIMBURSEMENT IS REPORTED IN "SECTION 8. TRAVEL". DO NOT INCLUDE MILEAGE REIMBURSEMENT IN "SECTION 1. INCOME". You are not required to list the individual ftems of income from your business or profession, only the name of any business, governmental agency, or empioyer from which you received income EXCEPT (1) you must list the source and dollar amount of income received, or shared with a partner in your business or profession, that is attributable to services or goods provided to a client or customer who is a'7egisiative agent" AND/OR (2) you must list the source and dollar amount of income received from a person or entity that is doing or seeking to do business with the General Assembly. Attorneys, physicians, and psychologists shouid list each practice separately but need not disclose the names of their clients or patients, unless those clients or patients are legislative agents. If the cl'ient or patient is a kegisiative agent, you must disclose each client or patient, unless excepted under Revised Code 102.02(A)(2)(c). For each source of income listed, briefly describe the services for which the income was received. EXAMPLE: SOURCE OF INCOME SERVICE PERFORMED AMOUNT (A, B, CD, E,ORF State of Ohio SenatorlRepresentative D Smith and Jones Law Firm Lawyer C 123 Main Street Rental income B Friendly National Bank Interest on Savings Account A Christo her Columbus - Le isfative Agent Boat Insurance Policy $143.00 IF NONE, CHECK HERE q SOURCE OF INCOME SERVICE PERFORMED AMOUNT A, B, C, D, E, OR F A. State of Ohio Speaker/Member E B. Da -Air Credit Union Interest Income A C. Merrill Lynch Interest Income A D. E. F. 3 B. IF YOU ARE AN EMPLOYEE OF THE GENERAL ASSEMBLY OR ANY LEGISLATIVE AGENCY; You are required to list each source of gross income. You are not required to disclose any dollar amounts except as indicated below. Also, list each source of income received by any other person for your use or benefit. Remember to list your public employment as a source of income. "Income" includes gross income for federal tax purposes and interest and dividends on all governmental securities. You are not required to list the sources of income of your spouse, unless the income was received for your use or benefit. You are not required to list the individual items of income from your business or profession, only the name of any business, governmental agency, or employer from whlch you received income EXCEPT (1) you must list the so rce and dollar arnount of income received, or shared with a partner in your business or profession, that Is attributable to services or goods provided to a client or customer who is a"tegistative agent" ANDIOR (2) you must list the source and dollar amount of income received from a person or entity that is doing or seeking to do business with the General Assembly. Attorneys, doctors, and psychologists should list each practice separately but need not disclose the names of their clients or patients, unless those clients or patients are legislative agents. If the client or patient is a iegislative agent, you must disclose each client or patient, unless excepted under Revised Code 102.02(A)(2)(c). For each source of income listed, briefly describe the services for which the income was received. IF NONE, CHECK HERE q SOURCE OF INCOME SERVICE PERFORMED AMOUNT (if uired A. S. C. D. E. F. 2. IMMEDIATE FAMILY MEMBERS List the names of inernbers of your immediate family. "Immediate family" is defined as your spouse residing in your household and any dependent child. IF NONE, CHECK HERE q A C. Tina Husted Kathryn Husted B. D. Alex Husted 4 3, BUSINESS NAMES List all names under which you or members of your immediate family do business. IF NONE, CHECK HERE ^ A. C. TH Com an of Ohio B. D. 4. INVESTMENTS List the names of each corporation incorporated or authorized to do business in Ohio and each trust, business trust, partnership, or association transacting business in Ohlo in which you or any other person for your use or benefit had an investment of more than $1,000 during 2008 (at fair market value as of December 31, 2008, or the date of disposition, whichever is earlier) or in which you hold an office or have a fiduciary relationship (regardless of any monetary Investment, including holding office in a not-for-profit corporation). Include all investmerds of more then $1000 even though they constitute sources of Income. You do not have to disciose accounts with banks, building and loan associations, savings and loan associations, and credit unions if the amount is a deposit orwithdrawable share account. For each listing, give a brief description of the investment, office, or relationship. EXAMPLE: NAME OF CORPORATION, TRUST, NAME OF INVESTMENT, OFFICE, BUSINESS TRUST, PARTNERSHIP, OR FIDUCIARY RELATIONSHIP OR ASSOCIATION Acme Corporation Common Stock Smith and Jones Partner Public Em I ee Retirement System of Ohio PERS) Mutual Fund Public Em io ee Deferred Compensation Mutual Fund Smith Cieanin Com an Board of Directors Brokerage Firm Money Market Account ABC Fund Mutual Fund Neighborhood Civic Assooiation Volunteer Trustee XYZ Inc. President IF NONE, CHECK HERE [3 NAME OF CORPORATION, TRUST, NAME OF INVESTMENT, OFFICE, BUSINESS TRUST, PARTNERSHIP, OR FIDUCIARY RELATIONSHIP OR ASSOCIATION A. OPERS Retirement Account/Mutual Fund(s) B. State of Ohio Deferred Compensation Mutual Fund s C. Merrill Lynch CMA, IRA, College Fund, 401-K D. Mont ome Coun Deferred Compensation Mutual Fund s) 5 ' S. REAL ESTATE List all leasehold or ownership interests in real property, flocated in Ohio to which you hold legal title or in which you have any beneficial interest. You do not have to list your personal residence or any real property used primarily for personal recreation. List by address or other description. IF NONE, CHECK HERE [] STREET ADDRESS CITY COUNTY ZIP CODE A. 148 Sherbrooke Drive Kettering Mon ome 45429 B. Coventry Road U erArlin ton Franklln 43221 C. 2305 Haverford Road Columbus Frank4n 43220 6. CREDITORS List the names of a11 of your creditors residing or transacting business In Ohio to whom you owe, or have owed, at any time during the calendar year 2008, more than $1,000 in your own name or in the name of any other person. You must disclose automobile loans, credit card accounts, and all other similar accounts if the balance has exceeded $1,000 at any time during the calendar year 2008, even if no balance is currently outstanding. You do not have to disclose the debts on your personal residence or real property used primarily for personal recreation, or debts resulting from the ordinary conduct of a business or profession. IF NONE, CHECK HERE [3 A. C. American Express Welis Fa o B. D. VISA 7. DEBTORS List the names of all of your debtors residing or transecting business in Ohio who owe, or have owed, rou at any time during the calendar year 2008, more than $1,000 in your own name or in the name of any other person for your use or benefit. If you are an attorney, a doctor, or a psychologist, you do not have to diselose the narimes of your clients or patients. You do not have to disclose the names of persons indebted to you if the debt results from the ordinary conduct of your business or profession. Banks, building and loan associations, savings and loan associations, and credit unions need not be listed if the only moneys owed to you by them are moneys which you deposited with such institutions or which are in a withdrawabie share account IF NONE, CHECK HERE 0 A. C. 5 s. rlZa vEL List the source and amount of each payment of expenses incurred for travel. Travel expenses include payments or reimbursements received by you in your own name, or by any other person for your use or benefit, for travel In connection with your official duties. You must disclose every payment or reimbursement of expenses for travel both inside and outside of Ohio. You must disclose travel payments or reimbursernents, INCLUDING MILEAGE REIMBURSFMENTS made to you, or on your behalf, by the General Assembly. You do not have to disclose expenses incurred at a meeting or convention of a national or state organization to which any state aaency, including, but not limited to, any legislative agency or state institution of higher education as defined in section 3345.011 of the Revised Code, pays membership dues. For example: the General Assembly pays dues to the following organizations: (1) National Council of State Legislatures (NCSL); (2) Council of State Governments (CSG); (3) American Legislative Exchange Council (ALEC); (4) Nationat Conference of Insurance Legislators (NCOIL}; (5) State Legislator Leaders Foundation (Naiional Speakers Conference); and (6) Senate Presidents Forum. IF NONE, CHECK HERE p SOURCE AMOUNT A. Ohio House of Re resentatives - Mileage Reimbursement 3,931.06 B. Aspen Institute: Aspen-Rodel Fellowship Seminar In the Middle East; 2/23108 - 3/2/08 $13,181.00 C. Aspen Institute: Aspen-Rodel Fellowship Seminar in Aspen; 12111PL008-12I1512008 2,695.01 D. 9. GIFTS List the source of each gift or gifts worth more than $75, aggregated for the calendar year 2008, received by you in your own name, or by any other person for your use or benefit If you are a member of the General Assembly, also list the source of each gift or gifts over $25, aggregated for the calendar year 2008, received from a teaislative aaent. You do not have to disclose the source of gifts received under a will or by Inheritance. Also, you do not have to disclose the source of gifts received from your spouse, parents, grandparents, children, grandchildren, siblings, nephews, nieces, uncles, aunts, cousins, step-relations, brothers-in-law, sisters-in-law, sons-in-law, daughters-in-law, fathers-in-law, mothers-in-law, or any person to whom you stand in loco parentis, or received by way of distribution from any inter vrvos or testamentary trust established by a spouse or ancestor. If you are a member or staff member of the General Assembly, you are prohibited from receiving a gift or gifts from a legislative agent where the value of the gift or gifts, aggregated per calendar year, exceeds $75. IF NONE, CHECK HERE [] A. C. See attached B. D. 7 10. MEALS, FOOD AND BEVERAGES List the source of each payment of expenses for meals and other food and beverages received In connection whh your official duties and that exceed $100 aggregated for the calendar year 2008. Expenses include payments or reimbursements to you. You must include the General Assembly If it was the source of expenses or reimbursements for meals, food, or beverages totaling over $100 for the calendar year 2008. You are not required to disclose the source of meals and other food and beverages provided at a meeting at which you participated in a panel, seminar, or speaking engagement or at a meeting or convention of a national or state organization to which anYstate asiencv, including, but not limited to, any legislative agency or state institution of higher education as defined in section 3345.011 of the Revised Code, pays membership dues. Nor must you disclose any meals or beverages, which have been reported in Section 8 above as travel expenses paid by the General Assembly. If you are a member or staff member of the General Assembly, you are prohibited from receiving from a legislative agent more than $75 aggregated per calendar year as payment for meals and other food and beverages. IF NONE, CHECK HERE E] A. C. Inter-Universi Council of Ohio ( IUC) Kids Votin Dinner B. D. 11. NON-DISPUTED lNFORMATION If you have received a statement from a legislatlve agent or employer which contains information described in R.C. Section 101.73(F)(2) and you do not dispute the information contained in the statement, either list below all of the non-disputed information contained in the statement(s) or attach a copy of the statement(s) to this form. IF NONE, CHECK HERE F^ A. See attached. 12, LICENSES Any member of the General Assembly who engages in the conduct or practice of a particular business, profession, trade, or occupation that is subject to licensing or regulation by any branch, department, division, institution, instrumentality, board, commission, or bureau of the state, is required to file a notice that he or she is the holder of a particular Iicense, or is engaged in such activity, as part of the financial disGosure statement. 7herefore, if you are a member of the General Assembly, list all Iicenses held or a description of any regulated activity. IF NONE, CHECK HERE 0 License Held Regulated Aetivity El 8 BEFORE SIGNING THIS STATEMENT, CHECK EVERY QUESTION TO MAKE CERTAIN YOU HAVE DISCLOSED THE NECESSARY INFORMATION OR, IF YOU HAVE NOTHING TO DISCLOSE IN A GIVEN QUESTION, YOU HAVE CHECKED THE BOX MARKED "NONE." IF THE ANSWER TO ANY QUESTION IS OMITTED. THE STATEMENT IS iNCOMPLETE UNDER THE LAW AND WILL BE RETURNED TO YOU. PERSONS WHO FAiL TO FILE A COMPLETE STATEMENT BY THE APPROPRIATE DEADLINE MAY BE ASSESSED A LATE FILING FEE AND MAY BE SUBJECT TO CRIMINAL PROSECUTION. By signing below, I swear or affirm that this statement and any additional attachments have been prepared or carefully revlewed by me, and constitute a comp)ete, truthful, and correct disciosure of all required information. By signing below, I also acknowledge awareness and understanding of Seations 102.02(0) and 2921.13(A)(7) of the Ohio Revised Code which prohibit me from knowingly filing a false statement and which are criminal misdemeanors of the first degree, punishable by a fine of not more than $1,000 or imprisonment of not more than six months, or both. (See Revised Code Sections 102.99(B), 2921,13(D), and 2929.21.) In addition, I acknowledge awareness and understanding of Sections 3.04 and 124.34 of the Ohio Revised Code under which filing a false statement may be grounds for removal from public office or dismissal from public employment. By signing below, I also acknowledge that either I have, or my public agency has, paid the $40 FfLING FEE (check or money order ONLY made payable to JLEC) which must accomoanv this disclosure form. Your Signature is Required Q d" Date q- ll - 0_j (Please sign in blue ink) NOTE: No person is requireFlto fite more than one financial disclosure statement for any given calendar year wRh the appropriate ethics agency. If you are a member of the Ohio General Assembiy you will file the JLEC Statementwith the Joint Legislative Ethics Committee regardless of your status as a former local or statewide offlceholder, candidate for bcal or statewide office or service on a state board or commission. tt you are a member of the General Assembly and receive a Financial Disclosure Statement from the Ohio Ethics Commission, DISREGARD the statement provided by the Ohio Ethics Commission. RETAIN A COPY OF THIS STATEMENT FOR YOUR RECORDS This statement must be filed with: JOINT LEGISLATIVE ETHICS COMMiT7EE OFFICE OF THE LEGISLATIVE INSPECTOR GENERAL 50 West Broad Street, Suite 1308 Columbus, Ohio 43215-5908 (614) 728-5100 FOR OFFIGIAL USE ONLY: Reviewed by ,^Jr "^ Date Tk Complete q incomplete Date form returned to filer. Date completed form returned to OLIG -!_„_L- 9 Senator Husted Addendum to 2008 JLEC Financial Disc[osure Statement Section 9: Gifts Inter-University Council of Ohio (lUC) House Republican Caucus Staff- Garmin OPS The Wilds - zoofari ticlcetslvi sit Soin International - golf outing Jack and Charlotte Kessler- golf outing David Brennan - golf outing Forest City Enterprises -basketball tickets Section ! I: Non-disputed information Category ot Em lo er at a Legislative ent Amount Ex enditure Detatfs Date Inter-University Council of Ohio IUC $38.00 Meals Dinner 71i0/2008 Inter-University Council of Ohio lUC $89.00 G(fts Award 7110/2008 Awards Ceremony funch Ohio Coalitfon of Quality Education $11.20 Meals and bevera e 8/27I2008 OSU Chabad House/dba Schottenstein Chabad House $29.95 Gifts Tie 412312008 h"v``_.E1 tiE . n v`•.•':f'-7Y_L: ^'E:_ ^:5'adFis:'fi' OH v^r''3^`'^ i U:3:s 148S^^=.iitsii^l^?:r'= ^s< Sg>'f'-c:3i:N!i, Cl€#..$.£l•l`c-:s L L^^LDPRD 57.i(lo:ri_t: L -Nf':3l'4/'^3 s L78N DISCDARGL UENDI$C'HABGE Lienlidtler ^ - - ^ Lienhv Ce - ' :.AUthonictlcisnature dste: CLERK OFCUUl2TS LfENCANCELLATtON CLERROF.N(MS1.IE+^^ICANC:fiLLpTION n^:- ...... dk.pnty Clerk ' - ' datc Deputy C7crk '- date 7`08915`879^ IIII I ill IIIII IIIII IIII IIII IIIII IIIII IINI II II IIIII IIIII * i 0 8 9 1 5 8 7 9 4* ^si2.,^ WqN ^ JPtl.vi.clw r• • • ^ ^• ^ N\1V 3800 Bev. 5/04 EXHIBIT ; Saint Albert the Great Church Non-Profit Org. 3033 Far Hills Avenue U.S. POSTAGE Kettering, Ohio 45429 PAID Dayton, Ohio Permit No. 277 REQUESTED IN-HOME DATES: Feb. 19-20th j_y***************5 DIGIT 45429 Mr• Jon Husted 148 Stierbrooke Dr Kettering OH 45429-1742 SAINT ALBERT THE GREAT PARISH 3033 Far Hills Avenue Kettering, Ohio 45429 February, 2009 Dear People of Saint Albert the Great, As our nation, our community and our fellow parishioners go through this time of turmoil, it is always comforting to know we have the Lord to turn to for His guidance and love. Lent is the perfect season for us to recall and relive Christ's joumey from Ash Wednesday through Holy Week to the Resurrection of our Lord, Jesus Christ, on Easter Sunday. As you know, Ash Wednesday is February 25th. Your parish would like to enhance this time of reflection and renewal by sending you the enclosed booklet. This "Little Black Book" contains a six-minute daily reflection for each day of Lent, from Sunday, February 22nd through Holy Saturday, April 11th. We have had copies of this particular booklet available for the Lenten & Advent seasons for the past several years and they have been very well received. In fact, we have run out very quickly and many parishioners have been disappointed not to be able to obtain one. Therefore, we are again sending one copy to every registered parisli family There ndll be many opportunities for worship and reflection at your parish during Lent. Spiritual Reading materials wiil be located in the Gathering Space. Worship events will include • Evening Prayer and ttte Stations of the Cross on Thursday evenings (Evening Prayer wiR begin at 7 pnt wed the Statiorr.r will fotlow at 7:30 pnt) • Stations of tlte Cross on Friday evenings at 7: 00 pne. • A special Way of flte Cross in story, nnuic and prayer on Tleursday, Alareh 19th, 7.•00 pnr • We are also irr the process of obtaining speakers for Wednesday evenings at 7.-00 pm in church during Lent Topics nnd speakers to be annouuced; watch the bu/letin for this infornuation. I would like to take this opportunity to thank you for the outstanding support you give your parish with your gifts of time, talent and treasure. No parish could survive without these gifts, and you are abundantly generous. Thank you for living the Gospel and serving the Mission of our Lord, Jesus Christ. Your reverence and devotion to His Church is an inspiration to your priests. Please know that your priests pray for you daily. I wish you a Lenten season of reflection and, with the help of Jesus, a time to increase the love we have for God, others and self. In Christ, ,rt « s C. Rev. Thomas E. Meyer Pastor enclosures SPIRITUAL EVENTS FOR LENT ASH WEDNESDAY, WEDNESDAY, FEBRUARY 25 LENTEN SPEAKER SERIES - Wednesdays 7 Masses at 8:30 am; 12 noon and 6:00 pm. pm Ashes are di:rribnted duringMass. Speakers to be announced. Heid in church. STATIONS OF THE CROSS • Thursday evenings at 7:30 pm (following Evening Prayer) • AND Friday evenings at 7:00 pm LENTEN COMMUNAL RECONCILIATION SERVICES with St. Charles, St. Francis & Incarnation • Tuesday, March 7, 7:00 pm at Incarnation Parish • Thursday, March 26; 7:00 pm at St. Francis of Assisi Parish REGULARLY SCHEDULED CONFESSIONS AT ST. ALBERT • Fridays: Confessions 11:15 to 11:45am Saturdays: 3:30 to 4:15pm (unless there is a funeral) (before 4:30 pm Mass) Rectory Phone: 937-293-1191 Rectory Fax: 937-293-1848 Website: www.stalbertthegreat.net St. Albert the Great Church 3033 Far Hills Avenue Kettering, Ohio 45429 March 30, 2009 Mr. Jon Husted 148 Sherbrooke Drive Dayton, OH 45429-1742 Dear Mr. Husted: Thank you for your continued support of our Church and for your willingness to consider making a pledge to the 2009 Catholic Ministries Appeal. As you are aware, the Appeal provides critical funding to help feed the hungry, shelter the homeless, care for patients and caregivers in hospitals, counsel inmates in jails and prisons, educate lay ministers and ordained clergy, provide Catholic ministry on college campuses and medical care and pension benefits to our retired priests. I hope you share my enthusiasm for this Appeal and will consider your own gift that will help support so many Catholic ministries in our region. As devoted Catholics, we must commit to helping those less fortunate. The Catholic Ministries Appeal is critical for providing those ministries that our parish alone cannot provide. So I would like to ask you for something extraordinary. Specifically, I ask for you to consider making an additional sacrifice by increasing your level of giving. If you have not contributed to the Appeal lately, I invite you to join your fellow parishioners in doing so. Your support at this time will instill confidence in our parish as we aim to meet our goal, inspire others to give, and most importantly, enable us to help many families tliroughout the Archdiocese. God has blessed the Archdiocese of Cincinnati with caring, active and committed families. The 2009 Catholic Ministries Appeal presents each of us with a special opportunity to share and serve with Christ's love. Thanks again for your consideration of this special request. With every good wish, I am Sincerely yours in Christ, ^-^-^J• ^^a,..pv C yrU..^,_^ . Rev. Thomas E. Meyer Pastor tele: 937-293-1191 parish e-mail: [email protected] fox: 937-293-1848 website: www.stalbertthegreat.net JENNIFER BRUNNER OHIO SECRETARY OF STATE 180 EAST BROAD STREET, 16TH FLOOR CoLUMeUS, OHIO 43215 USA TEL: 1-877-767-6446 FAX: 1 -614-644-0649 WWW. SOS. STATE.OH. US MEMORANDUM To: All Active Entities Filing Campaign Finance Reports with the Secretary of State From: Curt Mayhew, Campaign Finance Administrator Date: February 24, 2009 RE: Adjusted Campaign Contribution Limits In accordance with R.C. 3517.104, adjustments to campaign contribution limits have been made by this office. The contribution limits contained in R.C. 3517.102 and 3517.10(B)(4)(e) must be adjusted for inflation in each odd numbered year based on the Consumer Price Index for All Urban Consumers. The current contribution limits were multiplied by the six and eight-tenths percent (6.8%) increase in the Consumer Price Index from 2006 to 2008 and the product was then added to the existing contribution limits. 'The adjusted limit was then rounded to the nearest $25 for the limits specified in R.C. 3517.10(B)(4)(e). As amended by Am. Sub. H.B. I of the 126th General Assembly, Special Session, the adjusted limits specified in R.C. 3517.102 were not rounded. I have included a copy of the 2009 Adjusted Campaign Contribution Limits report. This report contains a detailed explanation of the procedures used in adjusting the contribution limits, a breakdown of all campaign contribution limits, and a reference chart containing the adjusted contribution limits. These new contribution limits are effective beginning February 25, 2009. If you have any questions, please contact me at (614) 466-1231 or cmayhewnsos state.oh.us RHINE McLIN Mayor C I TYof K30 AYTONe OHIO O F F I C E O F T N E C I T Y C O M M 1 S 5 1 O N 101 WEST THIRD STREET • P.O. BOX 22 • DAYTON, OHIO 45401 CITY HALL • ( 937) 398.3636 November 11, 2008 Jon Husted 148 Sherbrooke Drive Kettering, OiI 45429 Dear Jon: Congratulations on your election victory. It is a truly a commitment to serve under difficult times and to make a difference. Wishing you much success in your endeavor and if I can be of any assistance do contact me. Rhine McLin Mayor PS: "People will listen a great deal more patiently while you explain your mistakes than when you explain your successes." -Wilbur N. Nesbit DAYI'ON ' November 11, 2008 Senator-Elect Jon Husted 148 Sherbrooke Drive Kettering, OH 45429 Dear I wanted io take a moment to congratulate you on a successfu12008 election. It ttnly is a source of pride for the University of Dayton to see our alunmi serve in the Ohio Senate. Your strong commitment to public service reflects very positively on your alma mater. On behalf of the University, I wish you all the best. If there is anyway that we can assist you in transitioning into your new role as State Senator, please let us know. You can contact the University's Government Relations Director, Ted Sucaro, at (937) 229-4158 or via cell phone at (937) 266-3087. Once again, congratulations on your new avenue in public service! Sincerely, `D a'__.'.-_ Daniel J. Curran, Ph.D. President OFFICE OF THE PRFSIDENT 300 College Park Dayton, Ohio 45469-1624 (937) 229-4122 (937) 229-3396 Fax Department of Neurological Surgery N-1021 Doan Hall 410 W. 10th Avenue . . ' . Columbus, OH 43 210-12 4 0 Phone: (614) 293-8714/ Fax: (614) 293-4281 u\irrasiTY www.neurosurgery.osu.edu. The Honorable Jon Husted 148 Sherbrook Drive Kettering, Ohio 45429 Dear Senator Husted: behalf of The Ohio State University Comprehensive Cancer Center and the Dardinger Brain Tumor Laboratory, I would like to offer you my congratulations of your recent election to the Ohio Senate 6th District. I would like to thank you for all of your past support and would appreciate your continued support of o.ur Cancer Program, the patients we serve and their families. I look forward to working with you in the 1280' Ohio General Assembly. E. Antonio Chiocca, M.D., Ph.D. Professor and Chairman, Department of Neurological Surgery. Dardinger Family Professor of Oncologic Neurosurgery Director, Neurosurgical Services The Ohio State University EAC/bd JAD - AND - ASSOCIATES LLC November 10, 2008 The Honorable Jon Husted State Senator-Elect 148 Sherbrook Drive Kettering, ^45429 ^ Congratulations on your election to the Ohio Senate. I am so pleased that you have been selected by the citizens of your district to serve them in the Senate. I wish you all the best and hope you will let me know if there is any way I can be of assistance to you. 57 West Broad StreeS Suite 970 • Columbus, Ohio 48215 614/2240777 • Fax: 614/2240802 jadavidson®ameritech.net Kettering City School District Steven G.Clark Treasurer 3750 Far Hills Avenue Kettering, Ohio 45429 January 29, 2008 Jon Husted State Senator 148 Sherbrooke Drive Kettering OH 45429 Dear Jon, I am proud to present to you Kettering City School District's Comprehensive Annual Financial Report (CAFR) for the fiscal year ended June 30, 2007. This report contains information about the Kettering City School District's financial condition and educational structure. It has been prepared in conformance with Generally Accepted Accounting Principles as set forth by the Governmental Accounting Standards Board and complies with General Accounting Standards Board standard numbers 34 and 40. In addition, the Auditor of State's Independent Auditor's Report is included in the CAFR. The Comprehensive Annual Financial Report has been submitted to the Government Finance Officers Association for consideration for their Certificate of Achievement for Excellence in Financial Reporting and to the Association of School Business Officials for consideration for their Certificate of Excellence in Financial Reporting. I am pleased to report that the Kettering City School District received both awards for last year's CAFR. Fewer than 4% of all governmental entities receive both awards. I hope you find this report informative and educational. Steven G. Clark Treasurer/CFO Serving The Children Of Kettering And Moraine Ag science: INSIDE Risk or Public Policy ...... 2 "1Ve4e the one rea[entity ruhere tbe state reward from Communications . . . . 9 of 0bio invests in the agricultural sector Organization ...... 5 raw milk? for researtb and development." Industry News ...... 7 PG 7 PG 3 Noteworthy...... 8 ----^ A POBLICATION OF THE OHIO FARM Bl^RL9lle FEUERATIoN OHIO'S LAIiGEST AGRICUL'TUIiAL nER'SI'APFR FEBRUARY 5, 3009 I VOLUME 8 I ISSUE 9 OFBF examining Damage Report Ohio's metal There's a long way to go to control theft law the deer herd, but complaining is a start q Members say more needs to bedone BY SETH TEiER 7,677 I 8,723 COMPLAINTS[OtlPWqS PPERMITSERMITS FEWER DEER Lasr,year, Ohm legislarors tried make it harder fOr unlzwful s of beer kegs, grzve mark- rsn guardrads, manholc covers and BY AMY UEiH GRAVCS Ohio has more deer ehaq n can manage, evd ocher menl mamdals co cash 1n ` Chru lienney, Ohio Farnl Burexu Fcderarion's rhetrgoods. Gotaprobfemsvrthdeerdamagingy-ourcrops? s" (OFBF) dtracmr of legislamc relaions. Faperls Afier a sharp the 1n mcril theft, Takeacrionbygetringdeerdamagcpermits.which 3F csrtmam that Ihe deer popularion is more rhan the smte issued a uevaavv for scrap allowyou m kJl a cermin aumbcr ofdeer on yout 700,000. OFBF pollcy cslls for reducing rhzr dealers that ealled for thorough m- properry. Thas's the advice ofDavid Risley, execu- ^ numberra250,000. cordkeeping and pue resrricrions on ve administrator br the Ohio Division of Wdd- \\'hila OMo Di,ision of Wildlife ofLcials dodt eomonly evolen Irems. Bk's Wildl'IfeManagememandResazrch. £ h-rhefinalnumberofdeerkllledlassyear,thq Farm Bureau nembers have Lasuyezprhee-0dlifedivisionissued1,591 deer esldmorerhanll6,000d«r.ves BY nFN TOLFNO 90th annual mcenng in San Mm- RegulamRy Po6cyAdamSharp. waker pmgr.m.'We asked for more o, 6rmer delegarex scr policies Whik the 369 ddegazes (Indod and beaer training for employers to Ohio played e key role I. esnb- rhar will guide the organiznolon For ing 13 Fmm Ohio) indicared shar an awsswlierha or nottheyc-an ux the lishing posidons on farm cmpl0y- Ihecomingy The February 17, 2009, meeting will be taped and a recast will be presented on Cable Channel2l Friday, February 20, 2009, at 7: 00 p. m., and Saturday, February 21, 2009, at 3: 30 p. m. Leslie Miller, President Pam Gillette, Vice President Deborah Bobbitt, Member Doug Hess, Member Tom Wolf, Member Rusty Clifford, Ph.D., Superintendent Larry Campbell, Ph.D., Assistant Superintendent Dana Green, Business Manager Ryan Slone, Treasurer Scheduled Meetings West Carrollton High School Community Room 7:00 p.m. March 4 and 18, 2009 April 15, 2009 May 6 and 20, 2009 June 3 and 17, 2009 July 15, 2009 August 5 and 19, 2009 September 2 and 16, 2009 October 7 and 21, 2009 November 4 and 18, 2009 December 9, 2009 www.alz.org Advocacy and Pu61ic 202 393 7737 p Policy Office 866 865 0270 t 1319 F Street N.W., Suite 500 Washington, O.C.20004-1106 alzheimer's % association® Honorable Jon Husted State Senator 148 Sherbrooke Dr Kettering OH 45429-1742 Dear Senator Husted, Congratulations on your e!ection, and thank you for your willingness to seroe as a legislator. Alzheimer's disease affects 5.2 million Americans and their families today. It is now the. sixth leading cause of death, and without effective treatments, one in seven baby boomers face a future with Alzheimer's. State officials are grasping the present and looming picture of Alzheimer's disease as a serious public health crisis - and are taking action by creating state government Alzheimer's disease plans, working access to qua!ity !ong term care and helping constituents find information and support through the Alzhein'}er's Association. The enclosed brochure summaries our policy priorities and provides constituent service information. If we can assist you with constituent services or provide policy resources please contact us. Sincerely, A -r^^^ , • Michael Spiaine Director, State Policy and Advocacy Programs [email protected] the compassion to care, the leadership to conquer PERIODICALS U.S. POSTAGE PAID ohio -^`'^ COLUMBUS OHIO Council tN of Churches 6230 Busch Boulevard, Suite 430 Columbus, OH 43229-1879 x*r^m^ss^z^+K^**+^^^^^z^^^x:cs3-DIGIT 454 ]OHNHUSTED THIRTY-SEVENTH HOUSE DISTRICT 148 SHERBROOKE DR KETTERING, OH 45429-1742 This malting was taken to the post office the week of FEBRUARY 9th If you feel you have received it unusually late, please call your local post office CaCendar 15 Foundation, Board of Trustees, Columbus Executive Committee, Columbus 17 Orthodox Holy Friday 19 Orthodox Pascha February, 27-30 National Workshop on Christian Unity, 18 OHVOAD Phoenix 25 Ash Wednesday 29 Ecumenical Legislative Advocacy Day, Columbus March 2 Orthodox Lent begins May 4 Board meeting, Columbus 5 Faith and Order Commission 6 World Day of Prayer 7 National Day of Prayer 13-14 Synod of the Covenant Assembly, Toledo 15 ELCA, Northeastern Ohio Synod Assembly, 23 Northwest Ohio Denominational Leaders, Akron Perrysburg 15-16 ELCA, Northwestern Ohio Synod Assembly, 27 Columbus Executives/Bishops gathering Toledo 20 Board meeting April OHVOAD 1 Justice & Advocacy Comniission 31 Pentecost 5 Passion/Palm Sunday 9 Maundy Thursday June 10 Good Friday 5-6 ELCA, Southern Ohio Synod Assembly, 1 l Holy Saturday 7 Orthodox Pentecost 12 Orthodox Palm Sunday 7-1 1 UMC, West Ohio Conference, Lakeside Easter VHESOFiIEU OHIO DEPARTMENT OF JOB AND FAMILY SERVICES (hIHS'1 CLASSMAIL BUREAU OF TAX OPERATIONS U.S. POSTAGE PAID PO BOX 182413 I Ohio Uepl COLUMBUS OH 43218-2413 of Job anc Family L Services JFS 66550 (6P2008) ADDRESS SERVICE REQUESTED IMPORTANT TAX INFORMATION EMCLOSED OHIO UNEMPLOYMENT COMPENSATION TAX FORMS 134112/1 HUSTED FDR OHIO 148 SHERBROOKE DR KETTERING OH 45429-1742 ^i^ll^l^t^llllll n^I^^1^11111^^^III^I^II^II^1^1^II^^11^il^lll^ LEAGUE OF WOMEN VOTERS NON-PROFIT OF THE GREATER DAYTON AREA U.S. POSTAGE Talbott Tower, Suite 1208 PAID 131 N. Ludlow Street DAYTON, OHIO Dayton, OHIO 45402-1703 PERMIT NO. 105 RETURN SERVICE REQUESTED We are on the web www.lwvdayton.org Advocating Voter Education and 3 6 37 Action on Issues The Honorable Jon Husted 148 Sherbrook Drive Kettering, OH 45429 4m=+29 = =-=P2 '1Cu_jea." President's Message I've been asked a number of would be an opportunity for and Kids Votin.g, we have times in the past months just the Dayton League to hired Susan Hesselgesser. what the League was doing now improve our visibility, She will start the first of that the elections were over. enlarge our joint efforts April. it should be a real The questioners are always with other organizations boon to our operations. surprised that we do things and expand our exposure • We have 3 interns from UD during other parts of the year! on our international affairs working on an update of the positions. Know Your County booklets So what are some of the things • We are observing a number for both Montgomery and going on? of local government entities Greene Counties. These We have been told that our as a part of Sunshine Week updated publications will be application to LWVUS to host programming. League published on our website, a Russian delegation was volunteers will be observing hopefully by late spring/ impressive and although we 15 different governmental early summer. were not among the three units in the next month. • The 2009 Directory of Public League's chosen to host a • A kickoff of our 90th year Officials is at the printer's Russian delegation, our was held February 26th at and should be out late application still has high which we honored our 50 March. priority for consideration to year members. There are Yes, there are other things we host a group from one of the lots of exciting plans are working on: Voter Service expansion countries of around the 90th year projects, programs, Speakers Azerbaijan, Tajikistan or celebration coming up. Bureau, etc. However, this Kazakhstan. The LWVUS is • After interviewing people gives you some possible now waiting to see how for an Education responses for if you are asked many groups from those Coordinator position which what we do after elections! areas might be coming. This will be shared between us &/ca¢on Dayton Dhio RECEIPT FOR Habitat 1041 S. Patterson Blvd., Dayton, Ohio 45402 DONATED for Humanity® (937) 586-0860 ext. 11 and ext. 14 ITEMS DONOR Ik S IV^ Dayton Ohio Habitat for Humanity Inc. is a.charitable organization under IRS tax code section 501 (c)3 ADDRESS Iy^ '2'^OKi` {/!L and donations are tax deductible. Donors are responsible for placing /6XT/-zQC.IjC' !o Vs-t/Z... a value on each donated item. This acknowledges, with ourTHANKS, your items (below) donated to our ReStore. Dayton Ohio Habitat for Humanity did not provide any goods or services in consideration for this donation. 1^9 15'FVt^ 4 hF Z4- N4- 4^ JENNIFER BRUNNER OHIO SECRETARY OF STATE 180 EAST e(tOAO STFEET, 16TH FLOOR COLUMBUS, OHIO 43215 U5A TeL: 1-677-767-6446 FAX: 1-614-644-0649 WWW.SO5.51'ATE_ oH. US September 2i, 2009 Steven P. Harsman, Director Montgomery County Board of Eleetions 451 West Third St. Dayton, Ohio 45481 RE: 8econd tie vote on whether Jon Husted is a qualified elector of Montgomery County Dear Mr. Harsman: On June 29, 2009, the Montgomery County Board of Elections {"the Board") reached a tie vote on the question of whether Jon Husted ("Husted") is a qualified elector of Montgomery County. The Board previously reached a tie vote on this question on February 25, 2009. My decision on the matter is set forth below. Iiacks=roundl Senator Husted currently serves as state senator, representing Ohio's Sixth Senate District, having been elected at the 2008 general election. Prior to his term in the state senate, Husted served as state representa tive from the Thirty-seventh House District from 2oo1 through 20o8. Husted also served as Speaker of the Ohio Honse of Representatives from 20o5 through 2008. On October 27, 2oo8, the Montgomery County Board of Eleclions ("the Board") received a telephone caIl and subsequent facsimile from a representativeof ProgressOhio, a non- profit corporation, requestiug an investigation of Husted's residency. Hearing Tr. 1.1 Then, on October 28, 2oo8, the Board received another investigation request from Regine Elliot, a Montgomery County elector. Hearing Ti.1: Based an this request, the Board initiated an investigation of Senator Husted's residency and qualifications as an elector of Montgomery County. Unfortunately, neither of the investigation requests was included in the official record submitted by the Board for its first tie vote on this issue. The Board conducted an investigatoiy hearing on January 7, zoag. Senator Husted attended the hearing. There is no record that Senator Husted was represented by counsel at the hearing. Victor Whisman of the Montgomery County Prosecutor's office appeared at the hearing as legal counsel for the Board of Elections. At the conclusion of the hearing, the Board initially reached a tie vote on the question of requesting additional documents from Husted. This motion was subsequently withdrawn pending the receipt of additional legal research from Whisman. On February 25, 2009, the Board received the requested legal research from Whisman. Following a discussion among the Board members, Board Chair Gregory Gantt made the 'The Board conducted a hearing regarding Husted's residence on January 7, 2009. References to the hearing are referred to by the abbrev'iation "Hearing Tr." And the page numberin the transcript. Montgomery Counh> Tie Vnte - Jon IIusted Resideticy Page a of 12 following motion: "I make a motion that we 've done our job and investigated this and that [Husted is] a resident of 148 Sherbroolce Avenue [sic]." The motion was seconded by Board Member James Nathanson. Board Members Gantt and Nathanson voted in favor of the motion; while Board Members Dennis Lieberman and Thomas Ritchie voted against the motion, resulting in a tie vote. In accordance tvith R.C. 350i•11(X) and with the procedures outlined in the Ol1io Election Official Manual, the 114ontgomery County Board of Elections submitted the tie vote to me on March 11, 2oo9. After reviewing the materials submitted by the Board, I concluded that additional factual informatian was required to resolve this question. On April 7, 20o9, I notified the Board that Iwas holding the matter in abeyance to allow for the collection of additional evidence. The following day I requested that Senator Husted submit certain additional documents and re.cords that had been sought by some of the Board members_ Husted responded on April 1.7, 2oog, by sending a collection of documents to the Board that included some of the-requested records, Because this response was incomplete, I issued subpoenas to several government offices and utilities to obtain records related to Senator Husted's residency. These records were collected and submitted to the Board on June 8, 2oo9, with instructions to reconsider the matter and to reach a determination on the question of Senator Hasted's residency. On June 29, 2oo9, the Board met and briefly discussed the additional evidence and the law.relevant to determining an elector's residence. Once again, Board Chair Gantt moved that the Board hold that Senator Husted is a resident of Montgomery County, "7iving at 148 Sherbrooke Avenue [sic]." June Mtg. Tr. 2. The motion was seconded by Board 141eniber Nathanson. Board Chair Gantt and Member Nathanson voted in favor of the motion, while Board members Lieberman and Ritchie voted against the motion, tesulting in a tie vote. June Mtg. Tr. 8-9. In aceordance with R.C. 3501.11(X) and with the procedures outlined in the Ohio Election Official Manual, the Montgomery Counf} Board of"Elections submitted the tie vote to tne on July 14, 2009. Prior to the tie vote being submitted to me by the Montgomery County Board of Elections, Senator Husted filed in my office on July b, 2oo9, a request that I"finally resolve this case within ten (to) days of your official receipt of the same." On August 1i, 2009, Senator Husted filed an action in mandamus with the Sttpreme Court of Ohio, seeldng the following: 1. Dismissal ofthe chall.enge to his eligibility to vote in Montgomery County because it ivas not a "proper challenge" and alleging an "unlawful delay" in resolving the matter. 2. An order that the Secretary deny the challenge based on lacic of evidence in the record that he was not eligible to vote in Montgomery Cotmty. 3. An order that the Secretary deny the chaIlenge on the basis that the evidence in the record shows that he was eligible to vote in Montgomery County. 4. An order that the Secretary issue a ruling on the challenge. On September 14, 2oo9, the Supreme Court of Ohio.dismissed all of Senator Husted's claims, except the last one and ordered that the tie vote be broken no later than seven (7) days from its decision. My analysis and vote on the motion are outlined below. Montgomery County Tie Vote - Jon Husted Residency Page 3 of 12 Discussion Courts have recognize.d the signifiGance of an individual's constitutional right to vote. State ex reI. Eaton v. Erie Cty Bd. ofElections, 2oo6-Ohio-966, 2006 WL 513910 (Sixth Appellate District, 2/28/2006). The court also recognized in that case that federal court interpretations of the National Voter Registration Act, "found that the consideration of the residence and voting piecinet of a voter's spouse is arr appropriate factor to consider in furtherance of a state's goal to see that all applic.ants fulfill the residency requirement°" when exatnining the application of RC. 3503.02(D).Z Bell v. Marinko (C.A.6 2004), 367 F.3d 588,592-593. In State ex rel. Eaton v: Erie LYy. Bd. ofElections, the court relied on evideneethat Relator Eaton's wife lived in Florida and had voted there to uphold the decision of the Erie County Board of Elections that he was not entitled to be an elector of Kelley's Island and therefore nolonger entitled to file as a candidate for reelection to the Kelley's Island council. This was despite the fact that, in addition to testimony on his frequency of being at Kelle}'s Island, he also testified that he had a Kelley's Island mailing address, and that the Kelley's Island address tvEis ou his state and federal income tax returnsi that he believed that the address on his personal automobile registration had been on Kelley's island for ten years, and that he reported no earnings in I7lorida. The fact thatEaton's wife lived full-time in Florida and voted there was enough for the court to uphold the Erie County Board of Elections' actions in stripping him of lus voting rights and denyi3ng hiun further rights to reapplyfor voter registration. See; also, State ex rel. Spangler v. Bd. of Eiections of Cugalroga Cty., 7 Ohio St.3d ao, 21 (holding that an candidate for office was not a resident of Brook Park where his family resided iin Fairview Parlc and "there was no evidence that the residence of [the candidate's] family in Fairview Park was temporary or that they ever intended to live in the city of Broolc Parll'). Based on the holding of the Sixth District Court of Appeals in State ex reI. Eaton v. Erie Cty Bd. of Elections, and the similar fact pattern of Senator Husted's case to that of the relator in the Eaton case, his voter registration should be cancelled by the Montgomery: County Board of Elections; despite the fact that he is a state elected official who serves in Columbus butsays he intends to return to Kettering. R.C. 3503.o2(G) 9 There is no evidence that Senator Husted and his wife are or ever have been separated or live separately. Since I am ordered in mandamus by the Supreme Court of Ohio to break this tie vote, I note that I am able to take notice of information that further exists publicly and that is beyond the record, unlilte as would be the limitation of a judicial determination. From the record of this matter, I understand Senator Husted's wife's name to be Tina L. IIpsted. Reviewing the ivebsite of the Franklin County Board of Flections 2 R.C. 35o3.o2(D) provides: Me place rvhere the family of a mazried p.erson resides shall be consider•ed to be the person's place of residence; except that when the spouses haveseparated and live apart, the place where such a spouse resides the.lengtlr of time required to entitle a person to vote shall be consi(lered to be the spouse's place of residenee.° 9 R.C. 35o3.o2(G) provides: "If a person removes from this state to engage in the servicea.of the United States govenment, the person shall not be considered to have lost the peraop's residence in this state dtiring the period of snch service, an.d likewise should the person enter the employment of the state, the place where such person residedat the Hme ofthe person's renmuul shall be considered to be the persnn'splace ofresidence." (emphasis added) Montgomery County Tie Vote -.Ion I-Iusted Resideney Page 4 of 12 (http://vote.franltlincountyohio.gov/voter/voterSearch.cfrn), the entry ofsimply her first and last name provides information she is a registered elector in Tratiklin Connty, and is registered to vote at the address of 23o5 Haverford Road, Columbus, Ohio 43220. A further public online search of the state's statewide voter registration database (http://wivrv.sos.state.oh.us/SOS/voterquery.aspY) of the voter registration of his wife indicates also indicates that'ITna L. Husted lives at 2305 Haverford Road, Columbus, Obio 4322o, and has voted as an elector of that residence since the 2002 general election and most recently in the 2008 presidential primary and general elections. t', sitnilar online public records search of the voter registration of Senator Husted indicates that he is registered at 148 Sherbrooke Drive, Kettering, Ohio 45429, and has voted as an elector of that residence since the 2000 presidential primary election and most recently in the 2008 presidential primary and general elections and May 2009 primary election. As an initial matter, it is necessaiy to clarify some:issues surroundingthe timing of this residencyinvestigation. Husted, Board Chair Gantt, and Board Member Nathanson have all expressed concerns about delays in resolving the investigation. Gantt-Nathans.on First Position Paper, at t, 3; Gantt-Nathanson Seeond Position Paper, at 1. I share their concern that voterregistratio.n investigations be resolved promptly and accurately. The investigation regarding Husted's residency c6mmenced in late October 20o8 and the matter has no:w been pending for approximately eleven months. However, in this case it is the Board's osvn process that has consumed the vast majority of the time since the investigation comrilenced. The Board did not conduct a hearing on the matter until early January 2oo9, m.cre than two months after the requests wrere filed. The Board then waited nearly two months before holding a vote on the matter. The incompleteness of the record submitted by the Board required this office to first offer ta Senator Husted the opportunity to provide additional docunients for consideration, which he provided to the Board and copied to the Secretary. The record was still incomplete at that time, since the Board's deliberations on obtaining additional records through its investigatory subpoena power resulted in a tie vote. The Secretary of State, therefore, used the investigatory slibpoena power of the offica to obtain the records that the Board was unable to obtain and referred the matter back to the Board in the hopes that a tie vote could be avoided. Then, after receiving the additional docunlents obtaita'ned by this office, the Board took another month to review the matter and reached a second tie vote. Thereafter, Senator Husted, himself, added to the time by prematurely filing an action with the Supreme Court of Ohio to try to force the Secretary's hand to rule in his favor. The time required to resolve this matter could have been substantially reduced if the Board and Senator Husted had cooperated in a complete and thorough investigation in a timely manner. A. Legal standards governing voter registration residence Under Ohio law every United States citizen who is at leasteighteen years old, has been a resident of the state at least thirty days before the relevant election, has been registered to vote for at least thirty days before the relevant election,, and is a resident of the county and precinct where he or she seeks to vote has the quali F^rcations of an elector and is entitled to vote. R.C. 35o3.oz(A). B.C. 3503.02 provides the rules for determining the residence qualifications of an Ohio elector. The portions of R.C. 3503.o2 relevant to this matter are: All registrars and judges of elections, in determining the residence of a person offering to register or vote, shall be governed by the following rnLes: Montgomery County Tie Vote - Jon Husted Residency Page 5 of 12 (A) That place shall be considered the residence of a person in which the person's habitation is fijced and to zvhich, whenever the person is absent, theperson has the intention of returnfng. (emphasis added) (B) tY person shall not be considered to have lost the person's residence who leaves the person's hnme and goes into another state or connty o#'this state, for temporary purposes only, with the intention of returning. (C) A person shall not be considered to have gained a residence in any county of this state into qhichthe person coiues for temporary purposes only, without the intention of maleing such county the permanent place of abode. (D) The pCace. where the. famih,/ of a married person resides sTta11 he coitsidered to be the person's place o.^'residence; except that when the spouses have separated and live apart, the place where such a spouse resides the length of time required to entitle a person to vote shall be considered.to be the spouse's place of residence. (emphasis added) (F) $xcept a,s otherwise provided in division (G) of this section, if a person removes from this state and continuously resides outside this state for a period of four years or more, the person shall be considered to have.lost the pers.on's residence in this state, notwithstanding the fact that t'he person may entertain an intention to return at some future period. (G) If a person rentoves from this state to engage in the serviceg of the United States government, the person shall not be considered to have lost the person's residence in this state during Elhe period of such service, and Iiketuise shottid the person enter the employment of the state, the place where such person resided at the time of the person's removal s/iall be coruidered to be theperson'splace ofresidence. As discussed below, resolving the challenge toSenator Husted's residency involves harmotiiziftg three potentially conflicting portions.'of this statute: (i) the general rule based on ari individual's present circunistances and intent, (2) the exception for married voters, and (3) the exception for certain government employees. B. Nature of proceeding before the Board While there are specit'ic statutes in Ohio law regarding challenges to an individual's voter registration, this particular matter was specifred at the. Board's first bearing as an investigation pursuant to &C. 35o1.11(,T).+ (HearingTh i), In addition, the Board has the duty to"[i]nvestigate.and deterrnine the residence qualifications of electors" under R.C. 35oi.ia(Q). The Board attemptecl to resolve the matter of Senator Husted's voter a R C. 35ol.1,t(J) requires a board of elections to: "Investigate in•egularities, nonperformance of duties, brviolations of'iYtie XXXV of the Revised Code by alection off'icers.and other persons; administer oaths, issue snbpoenas, summon witnesses, and compel the production ofbooks, papers, records, and other evidence in connection with any such investigation; and report the facts to the prosecuting attorney or the secretary of state." Montgoinexy Countv Tie Vote - Jon Hasted Residency Page 6 of 12 registration based on the resi'clency questions raised at the hearings and was unable to resolve the question, referring the matter as a.tie vote to the Secretary of State. The Secretary utilized the investigatory authority of the office (R.C. 350i.05(N)(r)) to provide. the.Board with more information to avoid a tie vote and to determine Senator Husted's qualifications as an elector, but the Board was unable to reach a decision vdthout reaching a tie and has referred the matter back to the Secretary of State. The Secretary of State has been ordered by the Supreme Court of Ohio at Senator Husted's demand, to break the Board's tie vote. Given the importance of the right to'vote ta our system of government, it must be zealously protected. Voting is a "fundamental political right, because [it is] preservative of allrights." Yick Wo v. Hopkins (1886),118 U.S. 356,370; Reynolds v. Sims (1964), 377 U.S. 533, 562. The arc of Ainerican history-, from the Fifteenth, Nineteenth, and Twenty-sixth amendments to the United States Constitution to the.Voting Rights Act of 1965 and the National VoterRegistration Act of 1993, bends toivard expansion and protection of the right to vote. When an individual qnalifies to register and exercise this vital right, it should not be removed lightly. Emphasizing again that this matter is not before the Board upon a challenge to Senator Husted's voter registration, but rather, upon the Board's own investigation, I note that on challenges I have directed boards of elections to apply a heightened standard of review so that the burden of proving that a registered elec.tor is not qualified to vote under Ohio law must be established by "clear and convincing evidence.". See, Secretary of State Directive 2008-79 (http://F,na-tv.sos.state.oh.us/SOS/elections/Directives/2oo8% 2oDirectives/2 008- 79.aspx). This heightened standard shall be applied in this instancean my casting of my vote, in an abundance of caution and out of respect for Seuator Husted's service to the State of Ohio. In addition to preservhtg and protecting the right to vote, this off'ice lias worked to protect against voter registration fraud and voter fraud. Last year, Directives 2oo8-25, 2oo8-56, 2oo8-57, 2oo8-72, 2oo8-73, and 2on8-74 instructedboards of elections in minimum security reqitirements to guarantee protection of ballots and voting systems. These steps have helped to enscue safe and secm-e elections with no significant delays or problems. C. Evidence related to Senator FTusted's residency Senator Husted was the onlywitness to testify at the Board's hearing in January. Husted presented the following evidence on his own behalf regarding the relevant factors of R.C. 3503,02: Senator Husted owns a home at 148 Sherbrooke Drive in Kettering, Montgoniery County, Ohio. He has owned that home for the past fourteen years.. Senator H usted is registered to vote at 148 Sherbroolce Drive. Prior to running for state representative in 2ooo, while living in Kettering, Hustedworked for the Montgomery County Commission and the Dayton Area Chamber of Commerce. Senator Husted has served in the General Assembly since 2ooi.. During his first term as a state representative, Senator Husted began arranging for overniglit stavs in Columbus_ SenatorHusted has "rented, owned, or stayed with family in at least six different places" during his tenure as a state representative and state senator. Hearing Tr. 2. At one Montgomery County Tie Vote - Jon Husted Residency Page 7 of 12 point, approYimately three years ago, Senator Husted and his wife.had ownership in a condominium located in Colunibns, near the Statebouse. Senator Husted and his wife have a two-year-old daughter. Sc- nator Husted's wife is a real estate broker, with an office in Franklin County. She also performs physical therapy services, "mostly in Columbus." Hearing Tr. 9. At the time of their marriage, Senator Husted's wife resided in Columbus and since the marriage,,Senator Husted's wifehas "maintained" a house in Franklin County. Hearing Ti'. 5-b• Senator Husted also has a thirteen-year-old son who lives and attends school in Upper Arlington. Hearing Tr. 5. Senator Husted testffied that "for the most part [it is] accurate" that his. family resides in Columbus. Hearing Tr. 3. He stated that he personally "split[s] fiime between" Columbus and Kettering; spending a "considerable amotmt of time in Columbus." Hearing Tr. 5,14-15• Iie further testified that during the pasty-ear he has returned to 148 Sherbrooke Drive "[n]ot daily, but atleast weeldy" and that "[o]n some occasions" hehas spent the-night at 148 Sherbrooke Drive. Hearing Tr. 6-8;14-15. Senator Husted's children have rooms at the residence at 148 Sherbrooke Drive, and his current^vife supervised the remodeling of the home two years ago. Senator Husted also testified that the vveekend before the heacing he and his family traveled to Kettering for a hunting trip but did not stay at the Sherbroolce. Drive home. Hearing Tr. 5; to. Senator Rusted stated that he receives various forms of mail at the. 148 Sherbrooke Drive location. Husted pays the Dayton Puwer & I.ight bill for 148 Sherbroolce Drive, but could ilotrecall the amount of the average bill during the past year. Senator Husted testified that his taxes and retirement statements are sent to 148 Sherbrooke Drive and that this is. the location through which his "official business" is conducted. Hearing Tr. 9-1o. Senator Husted has a ban]t account with Dayton Air Credit Union. Under further questioning, Senator Husted admitted that he has a j oint personal checking account with his w*ife in Columbus to which his paychecks are deposited.. Hearing Tr. 11-13. Senator Husted's automobile is registered in Montgomery County, Ohio. Senator I-Iusted claimed that to the extent he departed from IVIontgomery County, it was due to his role as a state legislator. Hearing Tr. 4. Senator Husted testified that he intends to return to Kettering full-time when his public service ends. Hearing Tr. 2, 4, Following the Board's initial tie vote and my reqpest for further 5upporting docurnentation, Senator Husted submiited to the Board records demonstrating that his driver's license and automobile ate registered in MontgomeryCounty. The documents further showed that Senator Husted has sonie utility services at 14$ Sherbroolce Drive and that Senator Husted receives mail from private entities and state and local government agencies at that address. Senator Husted provided a copy of his required financial disclosure forms indicating that he listed 148 Sherbrooke Drive as his address. He also submitted copies of invoices reflecting the renovations to that property discussed in his hearing testiinony. The documents included pay stubsfrozn the Dayton Area Chamber of Commerce and records from the Day Air Credit Union reflecting financial ties to Montgomery County. In addition to Senator Husted's testimony and voluntarily-submitted documents, the record contains documents received in response to subpoenas issued by this office. These records reflect that Senator Husted has owned the property at 148 Sherbrooke Drive since October.1995- He transferred that property to a trust in January 2oo7. An October 21, 2oo8 letter from Montgomery County Auditor Karl L Keitb to Senator Montgomery CountyTie Vote - Jon Husted Residency Page 8 of 12 Husted indicates that Senator Husted has continually received a 2.5% tax rollback on the 148 Sherbrooke Drive property as his "principal residence." The property at 148 Sherbrooke Drive is servGd bywater, natural gas; and electrical utilities. The records for these utilities reflect notably reduced eonsumption duiing 2008 when compared with similar records from 20ao. For example, there was no reeorded water consumption at 148 Sherbrooke Drive during March tlirougli July 2oo8, while during the same period in zooo approximately 21 hundred cubic feet of water were used. Similarly, from April through October 2008 no more than 112 kilowatt hoursof electricity were consnmed in any single month; dur"ing the comparable period in 2oon, no less than 28o kilowatt hours'of electricity were consumed every month, According to records from the United States Postal Service, from January 2o05 to January 2oo6 and March 20o6 to February 2oo7, Husted had all mail frorim 148 Sherbroolte Drive forwarded to his state office at 77 South High Street in Columbus. Documents. received in response to a subpoena also help to olarify some of the issues . regarding Senator Husted's presence in Columbus.. From October 2003 to March 2oo6, he owned a condominium located at 91i-L ManorLane in Columbus. From February 2oo6 to March 2007, Husted and his wife owned a condominium located at 14S North High Street, Unit looo in Columbus. On February 3, 2006, Mrs. Husted cleelared under penalty of perjury in the conveyance docuinents that the 145 North High Street condominium would be their principal.residence by January 1, 20 07, and that the property was eligible for the 2:5"/n property tax rollbacle. The Husteds sold the 145 North High Street condominiuni in March 2007. D.. Analysis of legal and faetual arguments related to Husted's residency When these facts are applied to the relevant rules for determining residence under R.C. 3503.02 (listed above), it appears that prior to aool Senator Husted was a resident of Montgomeiy County, living at 148 Sherl>ro.oke Drive in Kettering. Zt is undi.sputed that since 20o1, Husted has spent "considerable" time living outside,Iviontgoinery County on a regular basis. It is also undisputed that Senator Husted's family resides outside Montgomery County. Thus, it appears that Senator Husted has homes in both Montgomery County and Franldin County. Although an individual may have more than one home, he may only have one "residence" for the purposes of voter registration. Determirtirlg Senator Husted's eligibility to be a Montgomery County elector requires determining which of these homes constitutes his "voting residenee." i. Application of the state employee residence prnvisi:on Board Chair Gantt and Member Nathanson argue that Senator Hustsd's residency is governed by RC.g5o3.oz(G). Gantt-Nathimon Second Position Paper, at 2. That statute provides, in part; that when a person "enters the employment of the state, the place where such person resided at the time of the person's removal shall be considered to be the person'splace of residence." R.C. 35o3.a2(G). Based on this provision they claim that Senator Husted's residence was effectively fixed in Montgomery County from the moment he became a state legislator. Board Chair Gantt opined that Senator Husted "could have even sold his home and terminated any employment he has in the [Kettering] area without affecting 11is residency status" and that "the only action taken by Mr. Hustedwithin the last eight years that could bavepossibly affected his residencv is his marriage to a wroman who resided in the Columbus area." Gantt Memo, at 5. Montgomery County 15e Vote - Jon Husted Residency Page 9 of rz Section 3, Artiele II of the Ohio Constitution requires state legislators to reside iit their district for a year prior to election.s Engaging in a legal fiction that a legislator remains a "resident" of his district by virtue of holding office regardless of his actual, physical presence in the district violates this constitutional requirement. Therefore, I expressly reject this rationale to determine Senator I3usted's residency. Additionally, Gantt and Nathanson ignore a key issue in the interpretation of RC. 3 fin3. o2(G)-the type of "removal" required to trigger tbe statute. The first clause of tlie statute speaks to when a person "removes from this state" to serve the federal government. In such case, the person does not lose his or her residence in the state while In gov.ernmentservice. Thestatutecontinues: "and likewise should the person enter the employment of the state," he or she will similarly not lose his or her residence in the state. A literal reading of the statutehas no application to Senator Husted's situation, since he has not removed from the state, only from Montgomery County. 2. Applieati.on ofthe married voter residence provision Board memb.ers Liebernian and Ritchie argue, in part, that the analysis of Husted's residency is gover.ned by the rule regarding married voters in R.C. 3503.02(D). Lieberriman-Ritchie Second Positioq Paper. This statute providesthat."[t]he place where the family of a married person resides shalI be considered to be the person's place of residence," exceptwhere the spouses have separated and live apart.6 R.C. 3503.02(D) (etnphasis ad.ded). Husted testified that "for the most part" his wife and young, daughter reside in Columbus. Husted's wife (nvns a home in Upper Arlington that she claims as her"principal residence" for property tax purposes. There is no evidence that Iiusted and his wife are separated and liNdng apart. In fact, Senator Husted admitted that his paycheek goes into a bank account held jointly with his wife in Columbus. Hearing Tr. 12-13.. He toolc pains in his testimony to indicate that his wife dnes som@times perform physical therapy out of town, that she returns to Kettering with him occasionally, but in the trip most recent to the hearing, the family did not stay at the Kettering location. Hearing Tt. 9-i1. Thus, according to Lieberman and Ritchie, Rusted should be considered a resident of Franldin County, Ohio. s In a brief filed with the Board following the lrearing and incorporated by reference i.nto the position statement of Gantt and Nathanson following the first tie vote, Senator Husted argues that Section 3,Article II bolsters his residency claim because it provides an exeeption to the one year residency requirement if the prospective state legislator "[has] been absent on the public business' *' of this State." Section 3, Article II, Ohio Constitution. Senator Husted claims that this elause constitutes recognition that legislators "must be absent froni their districts in order to perform their official duties." Husted Memo in Support of Dismissal, at B. Obxdou.slv, state legislators are required to leave their districts from time to time to attend to duties in Columbus. Even given the added responsibilities that Senator Husted bore as Speaker of the House of Representatives, it is not dear that he was required to remain outside his district for long periods of time when the General Asseinbly was not in session. Purther, it is riot clear on its face that this constitutional provision vvas intended to enable absentee legislators, and Senator Husted offers no authority to support this position. 6 The courts have held that the "separated and liv[ing] apart" exception in R.C. 3503.02(D) only refers to the physical location of the spouses and does not require the courts to inquire in[o the status ar quality of the marital union. So long as the spouses physically maintain two separate residences, the exception may apply. Cox u. VtlFage of Union City (i948), 84 Ohio App_ 279, 282. Mantgomery County Tie Vote - Jon FInsted Residency Page lo of 12 Although the statute contains mandatory language (i.e., "shalt be considered"), the United States Court of Appeals for the Sixth Circuit has ruled that R.C. 3g03.o2(D) does not violate the Equal Protection Clause of the Fourteentil Amendinent to the United States Constitution, as the statute is applied as a rebpttable presumption that a married voter resides where his or her family resides. Bell v. Marinko (C.A.6, 2004), 367 F.3d 588, 593• Sworn testimonyor an affidavit may be sufficient to overcome the presumption. Senator Husted did not make it clear from his testimony that he and his wife reside separately, and the presumption in R,C. 35o3•Q2(D) is not rebutted by his testimony or by records he provided either at the hearing or in response to the Secretary of 5tate's offer to allow him to produce mor@ information. Even using the clear and convincing evidentiary standard, his testimony fails to rebut the presumption that he lives with his wife and daughter in Franklin County. Moreover, the evidence of his wife's voter registration and voting history establish by clear and convincing evidence under RC..35o3.o2(D) that he has lost his Montgomery Countyresidency status, such as occurred in State e.'r rei. Eaton v, Erie County Bd. ofElections; when an offtce holder sought to run for reeleetion but was stripped of his voting rights ivhen his wife maintained a permanent.residence in Florida and voted there. 3. Applicatiori of the.general residency determination rule Because the Secretary of State is applying a clear and convincing standard to Senator Husted's situation, it is useful to loolc at whether the application of the general residency determination rule may operate to rebut the presumption of R.C. 3503.o2(D) that has notbeen.rebutted by Senator Husted's testimony. Under R.C. 3503.02(A) the law defines "voting residence" as °[t]hat place °*'` in which the person's habitation is fixed and to which, ivhenever the perrson is absent, the person has the intention of returning " R.C. 3503.o2(A). Senator Husted's nndisputed testimony repeatedly emphasized his intent to return to Montgomery County on a full-time basis when his public serctice is completed. The coiurts have noted that a "person's intent is ofgreat import" iri. applying R.C. 3503.02. State ex ret. Stine v. Brown Ctj Bd. of Elections (2004),101 Ohio St.3d 252, 2004-Okio- 7.71, at ¶x5. However, "[b]ona fide residence.maybe determined not only by an intention to reside at a fixed place, but also by factors that express such an iritent " Bell u. Marrinko (C.A.6, 2004), 36q F.3d 588, 592 (emphasis added)- The law expressly provides that residence is the location where a person's "habitation is. fixed." R.C. 3503.02(A) (emphasis added), Senator Husted admitted in his testimony before the Board that he sometimes took reimbursement for travel out of the state and that the reimbursements depended on where he was leaving from, but that he could not recall any reimbursements for travel from his Kettering loca'tion. Hearing'IY.12. He indicated that he purchased groceries for both locations in Kettering and Columbus. Hearing Tr. ii. He indicated that he and his familytraveled to both places and that the children had bedrooms in both places, but he did not cite any instances where the family stayed in Kettering. I-Iearing Tr. 5,1o. With respect to the location wllere Husted's habitation is presently fixed, the evidence does not rebut the presumption that lus residence is wdth his family in Franldin County. Senator Husted testified that he is in Montgomery County weeldy, but not daily. He retains a habitable dwelling in Montgomery County and has made certain improvements to that dwelling; however, use of the property is sporadic as is evidenced from utility records. Senator Husted claims the Montgomery County property as his "principal Montgomery County TSe Vote - Jon Hnsted Residency Page ii of 12 residence" for property tax purposes. In addition to his state legislative role, Senator Husted is employed by a Montgomery County entity and conducts at least some of his financial business through a Montgomery County-based bank. He at times receives mail at the Montgomery County address, and like John Eaton, in State ez rel. Eaton v. Ei'ie ChjBd. ofElections, some of his personal business appears to be conducted through the Montgomery County address. These facts, however, under case law are not sufficient to find that Senator Husted's presence is currently fixed in Montgoinery County. Other portions of the evidentiary record suggest a contrary conclusion_ Senator Husted, by his ozvn admission, spends a "considerable amount of time in Columbus." His wife, young daughter, and school-age son all reside in Franklin County. His v,dfe owns a home in Franklin County, and Senator Husted himself owned or co-owned at least two different properties in Columbus between 2oo3 and 2007. Senator Husted reported that one of these Columbus condominiums Nvas his "principal residence" for property tax purposes in 2oo6. For nearly two calendar years he had all mail fonyarded from his Mointgomery County dwelling to an address in Columbus. Utility records for the Montgomery County property deinonstrate a substantial decline in consumption as compared to 2ooo, including a period in2oR8, with no reported water consumption, suggesting:a substantiaUy reduced presenee in Montgomery County. These.facts support a finding tlrat Senator Husted's presence is currently fixed in Frauldin County and that he periodically returns to Montgomery County on a temporary basis. With respect to Senator Husted's intention to rettirn to Montgomery County, he testified under oath that any absence from Montgomery County is temporary and that he intends to return full-time once his state service is completed. Made under penalty of perjury, such testimony is due a proper amount of deference. No contrary testimony was offered at the hearing. However, in of Stzite ex reI. Eaton v. Erie C[y Bd. of Elections, the board found that there was conflicting evidence and testimony. The Sixth District Court of Appeals quoted from the board's transcript: ''TNe have eensidered the operation of an application of 3go2(D) of the Ohio Revised Code and loolcing at the authority of the Bell case from the Sixt'h Circuit, consider it as evidence, rather coiis'ider the application and residency of the spouses as evidence, but not as dispositive of the Board's finding..." Other facts outlined above provide evidence contrary to 8enator Husted's stated intentions. For example, the fact that Senator Husted's tivife. owns a liome in Franklin County and has one or more established businesses in the Colunibus area suggest that she intends to remain in Franklin County. Because there is no testimony tltat Senator Husted and his ivife live separately, it is not unreasonable to anticipate that he will continue to reside in Franldin County cvith his family even when his public service is complete. Lilcewise, claiming a Columbus condomininni as his "principal residence" is e-ytidence conlrary to an intent to return to Montgomery County. In Directive 2008-79, T instructedboards of elections thatan existing voter's registration could only be cancelled upon a showing of "clear and conviiicing evidence." "Clear and convincing evidence is that measure or degree of proof which cvill produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Cross u. Ledford (1954)161 Ohio St. 469, 477. As outlined in detail above, the evidence in the record supports by clear and convincing etiddence that Senator Husted i,.c not and has not been a resident of Montgomery County before and since the time the Board undertook its investigation. While Senator Husted's subjective testimony claims an intention to return to a"tired" habitation, the weight of the evidence based on his actions Moatgomexy County 17e Vote - Jon Husted Residency Page 12 of 12 and those of his family uuder the relevant legal. provisions tip the scale so clearly against bis assertions that I am convinced and hold the firm belief that he is no longer a resident of Montgomery County and therefore is not eligible to vote there. I note that hisvoting history during the pendency of this investigation should not be a subject for further inquiry; as the question of whether he was entitled to vote, there remained at issue and he should not be thus penalized. Decision^ For the foregoing reasons, I votC with Board'members Lieberman ahd Ritchey AGAINST the motion that Senator Rusted is a resident of Montgomery County, residing at 148 Sherbrooke Drive, Kettering; Ohio. Accordingly, the motion fails. The Montgomery County Board of Elections is hereby instructed to proceed accordingly. Sincerely, Jennifer Brunner 2804 JU:^ -b i ii 4= 57 July 6, 2009 The Honorable Jennifer Brunner Secretary of State 180 East Broad Street, 16`t' Floor Coluinbus, Ohio 43215 Dear Secretary BmmTler: As you know, on June 29, 2009 the Montgomery County Board of Elections deadlocked once more on the issue that we have exhaustively addressed since before the general election of 2008. The protracted length of the decision in this matter is surely unprecedented in the state of Ohio. I firnily believe that only eligible persons with the requisite qualitications should be perniitted to vote in Ohio. This investigation, however, has stretched the boundaries of due process, fairness, and common sense, and has outlasted even the appearance of an unbiased, even-ltanded inquiry. In your own words, you have riglitly pointed out the very real due process considerations any time a challenge is subinitted that attacks the voting qualifications of a registered elector, and command local Boards that any challenge should be challenge decided no later than ten days after the board receives the challenge. (See your Directive 2008-79, addressed to all local Boards of Flection before this inquisition commenced.) I hope you believe Ihat I am entitled to this same due process, as would be auy ordinary citizen whose right to vote has been challenged. Accordingly, I strongly urge you to request position papers frotn the Montgomery County Board of Elections as soon as possible, and ask that you fnally resolve this case witliin ten (10) days of your official receipt of the same. Fairness and due process demand no less. Thank you for your consideration. IN THE SUPREME COURT OF OHIO State ex rel. Jon A. Husted Relator, . Case No. 09-1707 V. . Original Action in Mandamus Expedited Election Matter Jennifer L. Brunner, et al. Respondents. AFFIDAVIT OF MEGHAN BREAKENRIDGE VALENTINE STATE OF OIUO ss: County of Franklin Now comes Meghan Breakenridge Valentine being first duly cautioned and sworn, and states the following: 1. I am an attomey with the law firm of Bricker & Eckler LLP, counsel for Jon A. Husted, the Relator, in this action. 2. I have knowledge of the matters stated in this Affidavit and am competent to testify on the matters set forth herein. 3. On May 22, 2009, Relator made a public records request to the Ohio Secretary of State, requesting records related to Secretary of State Brunner's decision to break the tie-vote of the Morgan County Board of Elections pertaining to a challenge filed against Richard D. Welch seeking to cancel his voter registration in Morgan County on the basis that he was not a resident of Morgan County. 4. On or about July 1, 2009, the Secretary of State's Office responded to this public records request. The exhibits attached hereto are true and accurate copies af some 3335486v3 of the records that the Secretary of State's office submitted in response to the public records request. 5. Exhibit J is a true and accurate copy of Assistant General Counsel Brian Shinn's October 10, 2008 email to Marlys Barbee explaining the procedures employed by the Secretary for breaking tie votes. 6. Exhibit K is a true and accurate copy of the Secretary's October 28, 2008 tie breaking letter issued by the Secretary. 7. Exhibit L is a true and accurate copy of the Transcript of the September 2, 2008 hearing before the Morgan County Board of Elections. 8. The documents received from the Secretary of State's Office reflect that Secretary Brunner issued her decision within one month after she received the tie-vote submission from the Morgan County Board of Elections. 9. The records received from the Secretary of State's Office reflect that the Secretary's decision was based solely on the record provided to her from the Morgan County Board of Elections; the Secretary did not require Mr. Welch to submit additional records or seek additional information from other sources to support her decision. FURTHER AFFIANT SAYETH NAUGHT. ,,-/12774^^ Meghan Breakenridge Valentine Sworn to before me and subscribed in my presence this 196ay of September, 2009. RENDRAS. COOK Notary Public NdnY Pub9c, State a oNo s iNyCommissknErpkesNaYember2D,2Dt3 \ ,,9^^^^,•f paf• 2 3335486v3 / Shinn, Brian From: Shinn, Brian Sent: Friday, October 10, 2008 10:49 AM To: 'Marlys Barbee' Subject: RE: Reply, please Ms. Barbee, The Secretary of State has developed procedures for handling tie votes in accordance with her statutory duties under R.C. 3501.11(X). We normally do not consider materials that were not submitted to the board of elections as part of its decision. It is similar to a court of appeals not considering new evidence in reviewing the decision of a trial court on appeal. Mr. Tigner testified at the hearing and had the opportunity to present his position to the board. If the Morgan County Board of Elections has any concerns about Mr. Padden and his representation of them inthis matter, that is between the board and him. He did advise them about this matter back in February 2008, and he was present for the hearing on September 2, 2008. I was available to the board of elections to answer questions about Title35 during their deliberations. Mr. Yosowitz was NOT giving the Morgan County Board of Elections legal advice. He, was making a legal argument to the board on behalf of his client, Mr. Welch. Brian Shinn Assistant General Counsel -----Original Message----- From: Marlys Barbee [mailto:[email protected]] Sent: Friday, October 10, 2008 10:26 AM To: Shinn, Brian Cc: Shaffer, Paddy-OEJC; Tigner, Mike Subject: Reply, please Dear Brian, Members of the Coalition would like to know if the letter I sent you yesterday will actually be used in review of the Welch/BOE case. • Another question we have has to do with the lack of counsel given to the BOE in Morgan County by the Prosecuting Attorney hired for that task. Mr. Padden, Guernsey Co. P:Atty., gave them NO counsel to the BOE following the hearing on September 2, 2008. When it was near the time limit for the vote to be taken by the BOE, Mr. Padden was on vacation and said he would not be available for any 'counsel before October 23, 2008. However, the BOE did receive additional counsel from Mr. Yosowitz, who is Mr. Welch's attorney. (A copy of that letter of counsel may be obtained from the Director of the BOE, if you desire to have it.) There seems to be something wrong in this action. Thank you, in advance, for your reply. Sincerely, EXHIBIT : Marlys J. Barbee 1 JENNIFER BRUNNER OHIO SECRETARY OF STATI= 180 EAST BROAp STREPT, i6TH PLO6R COLUMBUS, OHIo 43215 USA TEL: 1-877-767-6446 FA%:1-614-644-0949 tNtYW.5O5-5TATE.OH. US October 28, 20o8 Miranda Mullen, Director Morgan County$oard of Electioins 155 E. Main St., ltzn. 157 McConnelsville, Ohio 43756 RE:. Tie vote on whethex Richard D. Welch is an elector of lYIorgan County 'Dear Ms. Mullenc On September 99, 2oo8, the Morgan Cnunty Board of Elections reached a tie vote on the question of whether Richard. D. Welch is aqualifieil elector of Morgan County. M3= analysis and decision are outlined below. Background Welch currently serves as Morgan County prosecuting attorney, hauing been elected at the 2ooo general election and re-elected at the 2004 general election. Welch filed a declaration of candidacy andnominati'ng petition to run as Morgan Countyprosecuting attorne,y, in the 2oo8 Republican primary election. Welch is currently deployed with the U.S.. military seving in Iraq, In, his absence, assistant Morgan County prosecuting attorney.tlniy Graham i's serving as acting prosecuting attorney. On November 4, 2oo7, Miehael Tigner., an elector of Morgan County affiliated Nuith the Republican Party, filed a protest against Welch's candidacy asserting that Welch. is not qualified to be a candidate for prosecuting attorney because he is not a resident of'Morgan County. On January 22, 2oo8, the Morgan County Board of Elections received a letter fi^om Welch withdraNving from the race for prosecuting attorney. The board unanimouslyvoted to accept his withdrawal on January 23, 20o8. Although Welch withdrew from the eleciion, Tigner's protest also raised the issue of Welch's. status as an elector of Morgan County. The Morgan County Board of Elections held a hearing regarding Welch's status as an elector of Morgan County on JanuaLy 23, 2008. Welch was unable to attend the hearing because of his military deployment, Dan. Padden, Guernsey County prosecuting attorney, Was appointed as special prosecutor to represent the board of elections a;a^ •-.. Morgan County Board of Elections Page 2 of 6 Tie Vote on Richard D . Welch's Status as an Elector of Morgan County due to the conflict of interest of acting prosecuting attorney Graham being an employee of Welch. The board of elections voted 3-i to cancel Welch's voter registration at the end of the January 23, 20o8 hearing. However, based upon a request by Welch submitted through his legal counsel, the board later reconsidered its decision and on February 26, 2oo8, voted to stay the matter pursuant to the Servicemembers Civil Relief Act (5o App. U.S.C. 522) until Welch was available to participate in the hearing. The hearing was rescheduled for September 2, 2008. Welch attended the hearing and was represented by Attorney Andrew N. Yosowitz of the law firm of Isaac, Brant, Ledman & Teetor, LLP. Tigner appeared pro se. Guernsey County Prosecuting Attorney Padden represented the Morgan County Board of Elections as special prosecutor. Welch and Tigner testified at the hearing, and Tigner was permitted to question Welch and to make a closing statement in support of his protest. On September 29, 2008, the Morgan County Board of Elections held a special meeting to consider Welch's status as an elector of Morgan County. The board of elections first voted unanimously to remove the stay that was issued on February 26, 20o8. Then, Board Member Mary Anna Wallace then made the following motion: "We will reaffirm that based on the original findings, he (Welch) is not a qualified elector of Morgan County." The motion was seconded by Board Member Azcal Wilson. Board Members Wallace and A. Wilson voted in favor of the motion, while Board Chair James B. Wilson and Board Member J. Louise Pennock voted against the motion, resulting in a tie vote. In accordance with R.C. 35oi.u(X) and with the procedures outlined in the Ohio Election Official Manual, the Morgan County Board of Elections subniitted the tie vote to me on October 3, 20o8. My analysis and decision are outlined below. Discussion The tie vote of the Morgan County Board of Elections concerns whether Richard D. Welch is a qualified elector of Morgan County. The statute providing the rules for determining the residence qualifications of an Ohio elector is R.C. 3503.02. The relevant portions of R.C. 3503.02 to this matter are: All registrars and judges of elections, in determining the residence of a person offering to register or vote, shall be governed by the following rules: (A) That place shall be considered the residence of a person in which the person's habitation is fixed and to which, whenever the person is absent, the person has the intention of returning. (B) A person shall not be considered to have lost the person's residence who leaves the person's home and goes into another state or county of this state, for temporary purposes only, with the intention of returning. n .« Morgan County Board of Elections Page 3 of 6 Tie Vote on Richard D. Welch's Status as an Elector of Morgan County (D) The place where the family of a married person resides shall be considered to be the person's place of residence; except that when the spouses have separated and live apart, the place where such a spouse resides the length of time required to entitle a person to vote shall be considered to be the spouse's place of residence. Hxx (F) Except as otherwise provided in division (G) of this section, if a person removes from this state and continuously resides outside this state for a period of four years or more, the person shall be considered to have lost the person's residence in this state, notwithstanding the fact that the person may entertain an intention to return at some future period. (G) If a person removes from this state to engage in the services of the United States government, the person shall not be considered to have lost the person's residence in this state during the period of such service, and likewise should the person enter the employment of the state, the place where such person resided at the time of the person's removal shall be considered to be the person's place of residence. Welch and 15gner were the only witnesses to testify at the hearing. The board provided a transcriptl of the protest hearing. The following undisputed evidence was presented at the hearing regarding the relevant factors of RC. 3503•03: Welch owns a home at io8 Liberty Avenue in McConnelsville, Morgan County, Ohio. Tr. 23. He and his wife purchased the home from his parents in i99i or 1992. Tr. 25. He operated his law practice from the McConnelsville home starting in i99i, and he and his wife moved into the McConnelsville home in 1994• Tr• 25-26. They lived in the home and operated his law practice out of the home until 2ooi. Tr. 26. After he was elected Morgan County prosecuting attorney, he closed his law practice in 2oo1. Tr. 26. In May i999, Welch purchased a house in Belpre, Washington County, Ohio as an investment property. Tr. 26. They attend church in Parkersburg, West Virginia, and they would spend some weekends at the Belpre home related to their church activities. Tr. 27. However, their primary residence was the McConnelsville home. Tr. 27-28. After being elected prosecuting attorney and closing his law practice, Welch decided to renovate the McConnelsviIle home extensively. Tr. 28-29. The renovation was supposed to take a year, from the fall of 2002, until approximately the end of summer or fall 2003. Tr. 30. Construction began in 2002, and they moved out of the McConnelsville home due to the construction in the spring of 2003, prior to May 2003. Tr. 31, 6i. They did not move into another home in Morgan County; instead, they moved into the Belpre (Washington County) home for financial reasons. Tr. 31. Problems developed with the contractor that resulted in the renovation being delayed. Tr• 33-35. I References to the transcript of the September 2, 2008 protest hearing are referred to by the abbreviation "Tr." and the page number in the transcript. Morgan County Board of Elections Page 4 of 6 TSe Vote on Richard D. Welch's Status as an Elector of Morgan County Welch is a Colonel in the U.S. Army and a special services officer with approximately 36 years of military service. Tr. 36-37. On September 26, 2003, Welch received notice that he was being mobilized to active duty with the U.S. military and that he had to report to Ft. Hood, Texas on October 5, 2oo3• Tr. 35. Although he set up a plan to finance and complete the work that had to be done to the McConnelsville home, the contractor did not complete the work and eventually abandoned the project. Tr. 35-38• When Welch came home for leave in December 2004, the house was gutted and uninhabitable, and the contractor could not be located. Tr. 39-41. In July 2005, Welch returned from active duty in Iraq for two weeks before being sent to the Army War College in Pennsylvania for ten months. Tr. 44-45. He attended the Army War College until June 20o6. Tr. 45. At that point, he returned to Ohio and was living at the Belpre home because the McConnelsville home was uninhabitable when he returned. Tr. 45. He obtained new financing and hired a new contractor to complete the renovation starting in September 20 05. Tr. 44. Welch returned to his position as Morgan County prosecuting attorney in June 2oo6, but by the end of 2oo6, he learned that he would be redeployed to active duty in Iraq again. Tr. 47. He was redeployed to Iraq in February 2007, and as of the hearing date, Welch was still serving on active duty with the U.S. military under his current deployment. Tr. 47. The Belpre home was listed for sale in February 2007, before Welch left for Iraq again. Tr. 48. Mr. and Mrs. Welch are selling the Belpre house to help pay for the renovation of the McConnelsville house. Tr. 49. In February 2oo8, Mr. Welch's wife began moving things back into the McConnelsville house. Tr. 48. Welch testified that his wife has close friends in the Vietnamese-American community in the Parkersburg, West Virginia/Belpre, Ohio area but that she will be happy to move back to MeConnelsville if he is there. Tr. 59. Welch testified that he and his wife had always intended to return to the McConnelsville home and that he considers it his legal residence. Tr. 55-56, 63. They have invested approximately $15o,ooo in the McConnelsville home, and it is not finished yet Tr. 52. He indicated that had he not been redeployed to active military service, he could have moved forward with a new contractor more quickly. Tr. 54-55. He considers his absence from Morgan County as temporary and has spent a considerable amount of money to get back to Morgan County as quickly as possible. Tr. 67. He spent the night before the hearing at the McConnelsville home. Tr. 23. When these facts are applied to the relevant rules for determining residence under R.C. 3503.02 (listed above), it is dear that Mr. Welch and his wife left Morgan County in the Spring of 2003, and moved to their other home in Washington County while the McConnelsville house was being renovated. Although Welch testified that they started moving things back into the McConnelsville house at different points, from his testimony, the only date certain that he stayed in the McConnelsville house between the spring of 2003 and the date of the hearing (September 2, zoo8) was the night before the hearing. Morgan County Board of Elections Page 5 of 6 Tie Vote on Richard D . Welch's Status as an Elector of Morgan County However, the inquiry under R.C. 3503.o2 requires more than a mere surface examination of how long Welch has lived outside Morgan County. R.C. 3503.02 (B) specifically permits an elector to leave the county for temporary purposes and to retain his or her status as an elector of the county as long as the person intends to return. If an absence from the state equals four years or more of continuous absence, then the person loses his or her status as an elector regardless of intent under R.C. 3503.02(F). Moreover, the period of absence due to Welch's military service cannot be counted against him under R.C. 3503.0 2(G). When the periods of Welch's active duty military service are subtracted, the undisputed evidence reveals that Welch has only lived outside of Morgan County for approximately fourteen months (from May 2003, through October 5, 2003, and from June 2oo6, until February, 2007). Neither RC. 3503.02 nor the case law interpreting the current statute provide a definition of what constitutes a "temporary"absence. Prior to the 1971 amendment to R.C. 3503.03 in Amended Senate Bill 46o, the statute defined "temporary purposes" as permitting "a period of absence not in excess of three years." See, e.g. State ex rel. Lakes v. Young (1954),16i Ohio St. 341. 343 (citing the definition of "temporary purposes" in the former version of R.C. 3503.02). Under R.C. 3503.o3(F), a temporary absence cannot amount to four years or more of continuous absence from the state. Thus, Welch's total absence from Morgan County of fourteen months qualifies as a temporary absence. It is also undisputed that Welch always intended to return to Morgan County after the renovations to the McConnelsville home are completed. They have invested approximately $i5o,ooo in the McConnelsville home and hired a new contractor to take over the renovation when the prior contractor abandoned the project Additionally, Welch placed the Belpre home for sale before his latest deployment to Iraq, and he and his wife have moved some of their possessions back to the McConnelsville home on several occasions. Moreover, there is no evidence that Welch intends to remain in Washington County. The only other factor to consider in the residence determination is the residence of Welch's wife under R.C. 3503.02(D), which provides that the place where the family of a married person resides "shall be considered to be the person's place of residence." However, courts have held that R.C. 3503.02(D) cannot be applied to create an irrebuttable presumption of residence. Bell v. Markino (C.A.6, 2004),367 F•3d 588,593• The undisputed testimony from the hearing was that Welch's wife left Morgan County to move into the Belpre home in 2003, while the McConnelsville home was being renovated. Mrs. Welch could not return to the McConnelsville home while it was uninhabitable, but she began moving items back to the McConnelsville home after the new contractor began working on the house in 2005. Welch testified that she has been splitting her time between the Belpre home and the McConnelsville home. Mrs. Welch was not called as a witness, and her status as an elector of Morgan County was not an issue before the board of elections. Thus, there is insufficient evidence to draw any conclusion regarding Welch's residence based upon his wife's residence. Morgan County Board of Elections Page 6 of 6 Tie Vote on Richard D . Welch's Status as an Elector of Morgan Countv Because Welcb's total period of absence from Morgan County exclucling his active duty militaty service amounts to a temporaty abscnce, because he testified he lias maintainecl an intent ta return to Morgan County, and because he has taken nuni,erous actions that support his intent to return to Morgan County, I conclude that Mr. Welch is a qualified elector of Morgan County. Decision For tlre foregoing reasons, I vote inrith Board Chair J. Wilson and Board Member Pennoek AGAINST the niotion to reaffirm the finding that Welch is not a qttalified elector of Morgan County. Accordingly, the motion fails. Because Welch has ah•eady snbmitted a valid application for an absentee ballot as an armed services voterpursuant to R.C. 3511.02 and Advisory 2008- 29 and because the time for him to return his absentee ballot is short, the Morgan County Board of Elections is hereby instructed to issue Welch an absentee ballot inunediately in accordance ivith Adaisory 2oo8-29.. Sincerely, Jennifer Brunner WELCH.txt 1 BEFORE THE BOARD OF ELECTIONS MORGAN COUNTY, OHIO 2 3 4 BOARD OF ELECTIONS HEARING ) 5 ) 6 IN RE: RICHARD WELCH ) 7 ) 8 - - - 9 PROCEEDINGS before the Board Of Elections, 10 taken before me, 7ennifer D. Jarrett, Registered 11 Professional Reporter and Notary Public in and for the 12 state of Ohio, set forth at the Morgan county 13 Courthouse, 37 East Main Street, McConnelsville, ohio, 14 taken on Tuesday, September 2, 2008, beginning at 15 2:07 p.m. 16 17 TAHYI VIDEO & COURT REPORTING, LTD. 334 Main Street 18 P.D. Box 935 zanesville, Ohio 43702-0935 19 20 21 22 23 24 25 0 TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 2 1 APPEARANCES: Page 1 EXHIBIT WELCH.txt 2 3 BOARD OF ELECTIONS: 4 ]ames B. wilson, chairman 5 Mary Anna wallace, Member 6 Azcal E. Wilson, Member 7 J. Louise Pennock, Member 8 9 SPECIAL PROSECUTING ATTORNEY: 10 DANIEL G. PADDEN Attorney at Law 11 Tribbie, Scott, Plummer & Padden 139 Courthouse square 12 Cambridge, Ohio 43725 13 14 ON BEHALF OF RICHARD WELCH: 15 ANDREW N. YOSOWITZ 16 Attorney at Law Isaac, Brant, Ledman & Teetor, LLP 17 250 East Broad street, suite 900 Columbus, Ohio 43215 18 19 ALSO PRESENT: 20 Nancy Robison -- Deputy Director 21 Miranda Mullen -- Director 22 23 24 25 TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 3 1 INDEX 2 3 OPENING REMARKS AND INTRODUCTION OF MEMBERS . . 4 4 Page 2 WELCH.tXt TESTIMONY BY MICHAEL TIGNER...... 7 5 6 OPENING STATEMENT BY MR. YOSOWITZ...... 23 7 RICHARD WELCH 8 DIRECT EXAMINATION BY MR. YOSOWITZ ..... 24 CROSS-EXAMINATION ...... 60 9 10 CLOSING STATEMENTS BY MR. TIGNER ...... 82 11 BY MR. YOSOWITZ...... 84 12 CLOSING REMARKS...... 91 13 14 15 16 17 Is 19 20 21 22 23 24 25 TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 4 1 - - - 2 PROCEEDINGS 3 - - - 4 MR. WILSON: My name's ]ames B. Wilson. 5 I'm president of the election board, and, of course, 6 everyone knows why we're assembled here today, to 7 verify or declare Richard Welch a civilian resident. Page 3 WELCH.tXt 8 colonel; is that correct? 9 MR. WELCH: Correct. 10 MR. WILSON: And Dan Padden is with us 11 from Guernsey County prosecutor's office. He's our 12 counsel. i'd like to introduce the Board members 13 starting with Louise Pinnock, Mary Anna Wallace, Azcal 14 wilson and Ann Block from the Secretary of state's 15 office. And put your hand up, Nancy. she's the 16 department director. And -- 17 M5. MULLEN: Miranda. 18 MR. WILSON: -- Miranda Mullen is the 19 director. I only work with them every other day. so 20 I think that's all I need to say. And, Mr. Padden, 21 would you like to get the procedures started? 22 MR. PADDEN: Are you calling the 23 meeting to order? 24 MR. WILSON: This meeting is called to 25 order. we have to do that. And we'll -- I might add TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 5 1 that afterwards we might vote here. If someone 2 determines a reason, we might take it to executive 3 session before we vote, but that will be announced. 4 very good. 5 MR. PADDEN: All right. For the 6 record, my name is Dan Padden. i'm the prosecuting 7 attorney of Guernsey county and have been asked by the 8 judge of the Common Pleas Court of Morgan county to 9 sit as special prosecuting attorney and provide legal 10 advice to the Board. Page 4 WELCH.txt 11 Today's hearing is a hearing to determine 12 whether or not Mr. Welch is a qualified elector as 13 that term is used in the Revised Code. And as I 14 understand it, what brings us here is that an initial 15 protest by Mr. Tigner was made as to the 16 qualifications of Mr. welch to run for prosecuting 17 attorney. And there was a hearing previously held 18 where Mr. Welch had withdrawn his request or his 19 petition to run for prosecutor. And today is the 20 hearing on his -- whether or not he is a qualified 21 elector as that term is used in the Revised code. 22 So I would call on Mr. Tigner to address the 23 Board first. I imagine he would be sworn by the court 24 reporter. once he's finished, counsel can ask him any 25 questions. The Board could ask him questions. And TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 6 1 then when we're finished with that, if there's anybody 2 else to present any evidence on behalf of Mr. Tigner, 3 you could do that. And Mr. welch can call any 4 witnesses as he wishes or present any testimony he 5 wishes. 6 so first I would ask Mr. Tigner to be sworn. 7 MR. TIGNER: First, we're having the 8 second hearing -- the first hearing was on his 9 residency. it wasn't on his candidacy. Everything 10 that was in the first hearing was about his residency. 11 I think you're a little bit confused because it was 12 the residency that we was talking about. 13 MR. PADDEN: Residency to run for Page 5 WELCH.txt 14 office, not residency to vote. 15 MR. TIGNER: No, his residency as a 16 resident here in Morgan county because the first time 17 he was actually directed about and what I gave 18 testimony to of where he lived. we already voted, and 19 the vote was taken that he's not a resident, so we're 20 here for a second hearing because they have already 21 voted. 22 MR. PADDEN: The issue that arose is 23 whether there was proper notice given, so the eoard 24 has made initiative to have a full hearing and giving 25 him an opportunity to be heard. so at this time you TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 7 1 can be sworn in to testify. 2 3 - - - 4 MICHAEL TIGNER, 5 being by me first duly sworn, as hereinafter 6 certified, testified as follows: 7 - - - 8 MR. PADDEN: 7ust go ahead and make 9 your statement to the Board. 10 MR. TIGNER: Give my statement to the 11 eoard? 12 MR. PADDEN: Yes, sir. 13 MR. TIGNER: Like I said, the first 14 time was about the residency part. I did file a 15 complaint with the soard of Elections November 4th, 16 2007. I guess it says: This is an official protest Page 6 WELCH.txt 17 against Mr. Welch's application to run for prosecuting 18 attorney in Morgan county. 19 MS. ROBISON: Mike, we're having a 20 problem hearing you. 21 MR. TIGNER: State law says that: A 22 person running for office must reside in county, and 23 it is a known fact this man does not reside in Morgan 24 County, rather he and his family live in Washington 25 county in the city of Belpre, furthermore -- I did TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 U 8 1 make a mistake in the next six words -- furthermore, 2 his children attend school there. someone told me 3 because I got a phone call, so that is wrong, and I do 4 apologize for making that mistake in the complaint, 5 but it still has to do with his residency on the 6 complaint. 7 The Board of Elections had a meeting 8 February 26th, 2008, and someone spoke up about the 9 hearing and so forth. it says: several questions 10 will come to light. should there be a hearing will be 11 a question that is posed along with was the notice 12 adequate? 13 Mr. Welch put in the paper: welch said he 14 doesn't understand why the hearing proceeded after he 15 submitted his decision to withdraw from the election. 16 in the letter he actually stated: Residency. And 17 Mr. Welch, in turn, of all people, should know what 18 the laws are regarding candidacy and residency because 19 to run for office, you have to reside in the county Page 7 WELCH.tXt 20 and public office in the county is made up by the 21 people in the county and not somebody that lives 22 outside the county. And he didn't think they would 23 continue. 24 Kind of sounds like from two years ago 25 somebody said they was unaware of what the laws were. TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 9 1 i've done law enforcement for 28 years. sometimes 2 you've got excuses, or they didn't know, they didn't 3 think or so forth. it sounds to me like we're getting 4 the same thing here, that as an attorney, Mr. Welch is 5 a very smart man. He knows what the laws are. 6 Here is an email that the aoard of Elections 7 sent to Mr. Welch November the 26th, 2007, and it 8 says: The reason for this email is that Michael 9 Tigner has filed a protest against you and your 10 residency, so he was notified of residency. It didn't 11 say anything about candidacy. it says residency. 12 That was November, so he knew it had to do with his 13 residency. This is November. 14 January 9th, 2008, Mr. Richard D. welch of 15 901 Boulevard Drive, selpre: This is a notice of a 16 hearing that had been.set by the Morgan county soard 17 of Elections in regards to your residency, not 18 candidacy, residency. A protest letter was received 19 from Michael Tigner on November 4th, 2007 that is 20 questioning your residency. Again, not candidacy, 21 residency. That's what we talked about in the first 22 hearing. Page 8 WELCH.txt 23 And also the question of was it adequate 24 enough -- enough time adequate? well, this is lanuary 25 9th, and we had the hearing January 23rd. That's 14 TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 10 1 days notice. That's two weeks that he, you know, 2 could have had somebody here to represent him in his 3 behalf, a family member, his wife, legal 4 representation, 14 days to have somebody here to 5 represent him. And it says: if you are not able to 6 attend the hearing, you may send a representative on 7 your behalf. 8 And the one for today has only been like 9 four days. short notice. so there was enough time 10 there to have adequate representation, and it did 11 concern his residency was what I'm saying. Now, to 12 get to the residency part -- I'm getting nervous. can 13 I have my water? sorry. 14 I got a letter here that was sent to the 15 Board of Elections from Mark Landes; is that you? 16 MR. YOSOWITZ: No. Landes, L-A-N-D-E-S. 17 MR. TIGNER: And his letter to the 18 Board of Elections really states: since the protest 19 was directed at his candidacy -- which is wrong, it 20 was directed to his residence -- colonel welch 21 informed your aoard that he would withdraw his name as 22 a candidate. He was notified in every letter that it 23 was his residency, not actually what his attorney was 24 addressing to you. 25 colonel Welch naturally felt that his Page 9 WELCH.txt TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 11 1 withdrawal would obviate the need for any hearing on 2 his status as the protest was now moot. That's really 3 not so because he should have known there was a 4 question of his residency, and also he says: Had 5 Colonel welch been able to attend the board's hearing, 6 he would have been able to show two things: His 7 residence has been -- past tense, has been; Colonel 8 welch resided in McConnelsville, did reside, past 9 tense, resided in McConnelsville. That's past tense. 10 The law says that to be able to vote, that 11 you have to live within the county 30 days prior to 12 the election. Mr. welch did not live in Morgan county 13 30 days prior to election. section of the law 14 3503.02: Rules for determining residence: That place 15 shall be considered the residence of a person in which 16 the person's habitation is fixed and to which, 17 whenever the person is absent, the person has the 18 intention of returning. That means when you get up in 19 the morning, you go to work, when you leave, you plan 20 on returning to your habitation. 21 Well, for several years that's been 22 Mr. welch's intent, coming to work, return to Belpre. 23 He lived in Belpre. That's what that law refers to. 24 The place where the family of a married 25 person resides shall be considered to be the person's (740)454-7157 0 TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 12 Page 10 WELCH.tXt 1 place of residence. Where you and your family reside 2 is your place of residence. 3 Except as otherwise provided in division G 4 of this section, if a person removes from this state 5 and continuously resides outside this state for a 6 period of four years or more, the person shall be 7 considered to have lost the person's residence in this 8 state, notwithstanding the fact that the person may 9 entertain an intention to return at some future 10 period. 11 Now, he goes into the military as a 12 uniformed u.s. citizen. It says: uniformed services 13 Personnel: A member of the uniformed services, armed 14 forces, merchant marine and the commissioned corps of 15 the Public Health service, is eligible to vote a 16 regular ballot from the voting address in Ohio at 17 which the service member resided for 30 days 18 immediately before leaving Ohio to commence active 19 duty service. 20 No one is saying Mr. welch cannot vote. 21 it's just where can he vote? A regular ballot from 22 the voting address in Ohio at which the service member 23 resided, where he lived at that time, 30 days 24 immediately before leaving Ohio to commence active 25 duty service. TAHYI VTDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 13 1 when Mr. welch was called up, he was living 2 in selpre, so his place to vote is Belpre. That's the Page 11 WELCH.txt 3 uniformed Military Code. He can vote, but he has to 4 do it where he resided 30 days before he leaves for 5 service. There's a case law, Kyser versus aoard of 6 Elections, Revised Code 3503.01, makes no reference to 7 a person's former status as a resident. Makes no 8 reference to your former residence. It only refers to 9 his present status. Present means now. whenever he 10 has been a resident -- whether he has been a resident 11 of the voting precinct 30 days next -- preceding the 12 election at which he offers to vote. 13 ohio Revised Code lists two elements which 14 determines a residency: Fixed habitation, and two: 15 The intention of returning to that habitation. It is 16 the present intention which determines a person's 17 residency status, i.e., his intention during the 18 30-day period referred to in 3503.01 and not his past 19 intention some three years in the past when he was 20 living in a stationary household. He cannot have 21 residence in a place where he has not lived for three 22 years and to which he presently has no intention of 23 returning as Kyser versus Board of Elections. 24 Case law right there, 30 days to be able to 25 vote. And your present intent of where you live TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 14 1 presently. ohio Attorney General's opinion: 2 Residency for voting purposes is statutorily defined 3 in RC 3503.02. A person who does not meet the 4 residency requirements of Rc 3503.02 does not qualify 5 as an elector and, consequently, may not be elected or Page 12 WELCH.txt 6 appointed in any office in the state of ohio. That's 7 Attorney General's opinion. 8 You have to be a resident in your county to 9 hold a county job. Those county jobs are for people 10 here that wants to represent the people here. You 11 know, if Mr. Welch wanted to have his house renovated, 12 remodeled, then he should have found a place here in 13 Morgan County to reside and live so he could have kept 14 that status here. He chose to go to Belpre, which 15 broke that status. He needed to live in Morgan County 16 so he could serve the people and live with the people 17 that he's representing. 18 And 3503.06: Registration as electors -- 19 circulation or signing of initiative or referendum: 20 No person shall be entitled to vote at any election, 21 or to sign or circulate any declaration of candidacy 22 or any nominating or recall petition, unless the 23 person is registered as an elector and will have 24 resided in the county and precinct where the person is 25 registered for at least 30 days at the time of the TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 15 1 next election. 2 well, if you go out here and want to run for 3 office and stuff, there's so many laws that's been 4 broken by Mr. welch telling people he lives here when 5 he doesn't live here, running for office when he 6 doesn't live here, that's a conflict because he 7 actually represents, in his capacity when he's back, 8 he represents the Board of Elections so the conflict Page 13 WELCH.txt 9 of interest between the Board of Elections and the 10 prosecutor. You know, when you sign an absentee 11 ballot and request to vote, anything you put on here, 12 address or whatever, the spouse: whoever commits 13 election falsification is guilty of a felony of the 14 fifth degree. 15 This man has done this several times; that 16 his address is 901 Belpre -- Boulevard, Belpre. 17 Morgan county auditor's office has that listed as a 18 single-family residence subject to Mr. Welch. Morgan 19 county, 108 East Liberty street is listed as an office 20 building. This was his office. This is an office 21 building. Furthermore, how can you live in a house 22 with no water when the water record shows the water 23 has been turned off since 2002? You can't reside in a 24 house with no water. 25 Regarding what to do with this, this is a TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 16 1 piece of paper from the Marietta Times right here: 2 Area man awarded the Bronze star. on December 9th 3 colonel Rick welch of Belpre was awarded the Bronze 4 star Medal. Area residents know that he's a resident 5 of Belpre. Like I say, you really can't live in a 6 house that don't have no water. You're not living 7 there. 8 I talked to Mr. welch one night at the 9 library. we was going over a lot of things about 10 corruption here in Morgan County, and he told Trent 11 McDaniel and I that he would go meet with vanessa Page 14 WELCH.txt 12 Mcoaniels on the way home. We was talking about an 13 incident, and he said on his way home. He called 14 vanessa and told Vanessa he would like to talk to her, 15 and they met in Beverly when he was on his way home. 16 And he told her the same thing about stating to her 17 that -- he did state he did get to talk to her on his 18 way home. 19 when he's referring to people, he's 20 referring to people on his way home, going home. ]ust 21 like any of us would say: when I get done at work, 22 I'm going to go home. That's where you live. That's 23 where you reside. so he's been doing a 90-some 24 thousand dollar a year job trying to keep it. I would 25 maybe say the same thing, but you've got to live in TAHYI VIDEO & COURT REPORTING, LTD. ( 800)526-6508 (740)454-7157 0 17 1 the county, not in another county. 2 That's pretty much all i have. i hope 3 everybody understands what the law says, that you have 4 to reside in the county to vote in the county, and 5 that's the law. 6 MR. PADDEN: DO you have any more 7 evidence you want to present, Mr. Tigner? 8 MR. TIGNER: what's that? 9 MR. PADDEN: Do you have anything else 10 you wanted to add? 11 MR. TIGNER: No, not right now. 12 MR. PADDEN: Do you wish to question 13 him? 14 MR. YOSOWITZ: Thank you. Just Page 15 WELCH.tXt 15 briefly, Mr. Padden. For the record, I'm Andrew 16 Yosowitz, No. 00750036, and I represent Mr, welch. 17 18 CROSS-EXAMINATION 19 BY MR. YOSOWITZ: 20 Q. I just have a couple questions for you. 21 A. okay. 22 Q. You mentioned or you showed something from 23 Morgan County Auditor's website. 24 A. Yes. 25 Q. okay. Did Mr. Welch prepare that? TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 18 1 A. Do what? 2 Q. Did Mr. Welch prepare that document? 3 A. No, but he had an office there. it was a 4 known fact that that was his office where he practiced 5 law, and that's why the auditor's listed it as an 6 office because that's what it was. 7 Q. And you're aware that he also lived there as 8 well? 9 A. No, I'm not aware, and I really, truly don't 10 remember him ever living there. 11 Q. Okay. 5o you don't know? 12 A. I don't know. 13 Q. The water's been turned off since 2002 to 14 the present? 15 A. I'm not sure about the present, but in 2002 16 to present supposedly yes, it's like a vacant house. 17 Q. so if the water had been turned on now, you Page 16 WELCH.txt 18 have no knowledge of that? 19 A. N0. 20 Q. The newspaper article where Colonel Welch 21 was awarded the Bronze star and the writer listed his 22 address in aelpre, did Colonel Welch write that 23 article? 24 A. No. 25 Q. okay. in that article, was he interviewed? TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 19 1 A. Was it an interview? I mean, a lot of times 2 military will send out notification to newspapers when 3 things happen, so it could have been something that 4 was sent out from the military to the local papers so 5 they would know that he received the Bronze Star. I'm 6 not sure how it got there or anything like that, no. 7 Q. Let me rephrase my question. In the 8 article, is there a statement from Colonel Welch 9 stating that he lives in Belpre? 10 A. No. 11 Q. okay. so the writer who wrote that article 12 could be mistaken and you don't know if they ever 13 talked to Colonel Welch about that? 14 A. No, I don't. 15 Q. Okay. Do you have any other documentary -- 16 or documentation to support your feelings other than 17 the auditor's report and the newspaper article? 18 A. I know I looked into phone records. 19 MR. YOSOWITZ: EXCuse me, ma'am. 20 A. I remember I looked in the phone records. Page 17 WELCH.txt 21 There was no listing for a phone number for Mr. Welch 22 in Morgan county, but there was a phone listing for 23 Mr. Welch in Belpre and it was listed in the phone 24 book, his phone number, address, 905 Boulevard Drive, 25 Belpre, so he actually had a phone registered and TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 20 1 stuff but not in Morgan county. 2 Q. when was that, sir? 3 A. oh, gosh, I forget what book I looked at, 4 but a couple years back. 5 Q. Do you have any knowledge of utilities or 6 phone records since that time? 7 A. No. And, really, actually, the Board of 8 Elections should look into that, you know, things that 9 were reported to them and they should have been doing 10 the investigation also beyond just to check things 11 out. 12 Q. I'm sure they will do that. 13 A. I mentioned that to the Board of Elections 14 also, all the correspondence that I said was wrote to 15 him at the Belpre address. 16 Q. okay. Do you have any knowledge of where 17 his other official correspondence was sent, tax 18 records, military orders? 19 A. No. That's something the Board of Elections 20 should have investigated upon. 21 Q. So that's a no, you don't have any idea? 22 A. I don't have any idea, no. 23 Q. And you agree that present intent is Page 18 WELCH.tXt 0 22 1 EXAMINATION 2 BY MR. PADDEN: 3 Q. Mr. Tigner, I only have one question for 4 you. The initial protest that you filed, the first 5 sentence was: This is an official protest against 6 Mr. Richard Welch's application to run for prosecuting 7 attorney. It's that statement that put all of this in 8 motion, correct? 9 A. The first sentence, yes, was his residency 10 in the complaint. Like I said, you have to be a 11 resident to be able to run for that office because 12 this job is supposed to be for the people that live in 13 this county to serve the people of this county, not 14 live in another county. 15 MR. PADDEN: Yes, sir. Does the Board 16 have any questions for Mr. Tigner? 17 (NO RESPONSE.) 18 MR. PADDEN: All right. Mr. Yosowitz, 19 do you wish to present any evidence to the Board? 20 MR. YOSOWITZ: Thank you, Mr. Padden. 21 if it's okay, just a brief opening statement. 22 MR. PADDEN: Sure. 23 MR. YOSOWITZ: And will I be allowed to 24 make a closing statement as well? 25 MR. PADDEN: Sure. TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 23 1 MR. YOSOWITZ: I just wanted to Page 20 WELCH.tXt 2 address -- for the record, I got your letter and I 3 understand your objection in holding today's hearing. 4 For the record, Mr. welch's position would be that 5 when the hearing went forward without him, the earlier 6 hearing, it was a violation of the service Member 7 Civil Relief Act. we had written a letter to the 8 Board of Elections to set aside or stay the decision, 9 and we appreciate that they did that. And the whole 10 purpose of that is so that Mr. welch has an 11 opportunity to be heard and present evidence, evidence 12 that would be difficult to present when he's in Iraq. 13 some of the case law on this point I want to 14 give you, state, ex rel. versus Erie County aoard of 15 Elections. There's a website for that case, 2006 ohio 16 966. when someone's residency is challenged, they 17 have a right to a public hearing, which is what we're 18 doing right now. They have a right -- the challenged 19 individual may testify, which, of course, would be 20 impossible if Mr. welch is in iraq. He has the right 21 to call witnesses as well as be represented by 22 counsel, so it's not so easy to just say he could have 23 sent a representative. That would have denied him the 24 opportunity to be heard. 25 in addition, we're not disputing that this TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 24 1 is a residence determination hearing. That's what 2 3503 is about. it applies to candidates and everyday 3 citizen voters alike, so whether we couch this in 4 terms of Mr. welch's candidacy or his status as just a Page 21 WELCH.txt 5 qualified elector, it does deal with his residence. 6 The fact that he withdrew his candidacy, we're not 7 disputing that. The hearing can still go forward. 8 with that, I would call on Mr. welch to testify. 9 10 - - - 11 RICHARD WELCH, 12 being by me first duly sworn, as hereinafter 13 certified, testified as follows: 14 DIRECT EXAMINATION 15 BY MR. YOSOWITZ: 16 Q. Could you state your name, please, for the 17 record? 18 A. Richard Welch, W-E-L-C-H. 19 Q. And you understand we're at a hearing today 20 to determine whether you're a qualified elector in 21 Morgan County? 22 A. I do. 23 Q. Just briefly, can you tell the Board about 24 your connection to Morgan County? 25 A. You know, born and raised in Morgan County TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 25 1 out in Center Township. I always say I was a little 2 schizophrenic because we get shipped out into Fort 3 Frye school District, so I grew up in Morgan County, I 4 went to school down in Beverly, ohio, at Fort Frye, 5 which is in Washington, and other than the three years 6 and six days when we were traveling with parents, we 7 came back here, I finished high school and, you know, Page 22 WELCH.tXt have always come back, you know, here when i come back from college or the military. Q. what about your family, are they from Morgan County? A. My -- which part of my family? Q. How about your parents? A. My father grew up in the same place in Morgan county out in center Township where his father and grandfathers were from. My mother's actually from west Virginia. she was born there. And my -- three of my brothers and sisters grew up here in Morgan county as well. Q. Do you have relatives that still live in Morgan county? A. I have an aunt who lives here. I have several cousins who live here, and, of course, my father is deceased, my mother lives in Beverly, and my brothers and sisters all seem to congregate there as TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 26 1 well. 2 Q. Do you own a house in Morgan county? 3 A. Yes. 4 Q. And where is that house? 5 A. 108 East Liberty Avenue. 6 Q. And where did you sleep last night? 7 A. At that same address. 8 Q. And where have you been -- strike that. 9 How long have you been on military leave? 10 A. on this tour or -- Page 23 WELCH.txt 11 Q. Just this current leave? 12 A. since February -- early February -- February 13 6th, I believe it was, 2007. 14 Q. okay. How long have you been -- you're on 15 leave right now? 16 A. Yes. 17 Q. How long have you been on this latest leave? 18 A. Just a week and two days, I think. 19 Q. And where have you been staying? 20 A. Actually splitting the time between here and 21 the house down in Belpre. 22 Q. And why is that? 23 A. The house here we're getting everything back 24 in, and the house in Belpre is on the market for sale 25 and has been for some time, so we're finishing getting TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 27 1 our things back out of there to get them here. 2 Q. The house on East Liberty in Morgan County, 3 how long have you had that house -- or strike that. 4 How long has that house been in your family? 5 A. since, I think, september 1991. 6 Q. And who purchased it in 1991? 7 A. My mother and father purchased it in the 8 beginning or -- 9 MR. PADDEN: Mr. Welch, can you keep 10 your voice up? They are having a hard time hearing 11 you back here. 12 Q. I'm going to step back so if I can hear you, 13 chances are everybody can hear you? Page 24 WELCH.txt 14 A. My mother and father purchased it, I think, 15 September of 1991, and I don't know the exact date, 16 but sometime within a year or two my wife and I bought 17 it from my parents. 18 Q. And what was your intention in purchasing 19 that house from your parents? 20 A. In '91 or '92 when we purchased it -- 21 actually in September of '91 I opened my law office 22 there when I first came back -- actually, that was on 23 the tail end of redeploying from Desert Storm, and we 24 had lived in Columbus during that -- just before that. 25 we intended to come here, set up an office here. We TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 28 1 actually lived, though, in Beverly. we had a house 2 down in Beverly, which is a few miles down the road, 3 so the initial intent was to open a law office here in 4 McConnelsville. 5 Q. And how long was that house used only as an 6 office? 7 A. It was used as an office, solely as an 8 office until September of 1994. We sold our house in 9 Beverly. I also had an office in Beverly, and I was 10 trying to cover a lot of counties here and just, you 11 know, was a little too much. so most of our work was 12 here, so we sold the house in Beverly and that's when 13 we moved into the house and made it a home office. 14 Q. And so you moved into the house in 1994? 15 A. September of 19 -- actually, my wife moved 16 in, and I was on my way to Haiti, so I was there for Page 25 WELCH.txt 17 three months until they got everything moved in and 18 then I came back and joined her here. 19 Q. And where was the office in the house? 20 A. it was downstairs. There were two big rooms 21 downstairs. one of those was my office, one of the 22 larger rooms was where the secretaries and clients 23 would wait, and the secretaries were there. our house 24 was upstairs. There were two -- two and a half 25 bedrooms and a bath upstairs, and then a small kitchen TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 29 1 downstairs that we used for the residence. 2 Q. And how long did you use the house as your 3 home, slash, office? 4 A. until -- I closed the office, I think, in 5 June of 2001, you know, after i became prosecutor. 6 You have six months to wrap up your private practice, 7 so I officially closed it as an office in ]une of 8 2001. 9 Q. okay. well, let's back -- let me back up a 10 little bit before you became prosecutor. Do you own 11 any other property? 12 A. we own the house in Belpre, 901 Boulevard 13 Drive. 14 Q. And how long have you owned there? 15 A. That -- I think we closed on that sometime 16 in the summer, around May perhaps, of 1999. 17 Q. And why did you purchase that property? 18 A. we actually purchased it as an investment 19 property. we go to church, we work and help with Page 26 WELCH.txt 20 church down in Parkersburg. There was a couple in 21 that church who were going to retire and they, you 22 know, approached us about buying the property. They 23 were going to finance it, so it was an easy deal to 24 get into. It was a good location, and we thought it 25 would be a good investment property. And we thought TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 30 1 we could use it on the weekends when we're working at 2 the church. We would go down on a Friday, sometimes a 3 saturday night, spend the night and then come back 4 here on a Sunday night. 5 Q. But your primary residence was in 6 Mcconnelsville? 7 A. Yes. 8 Q. And when did you become county prosecutor? 9 A. i took office in ]anuary of 2001. 10 Q. okay. And you were reelected in 2004? 11 A. Yeah. Yes. 12 Q. Did you make any changes around the year 13 2000, 1999 to your home in McConnelsville? 14 A. well, I mean, we always had the desire to -- 15 you know, if you ever were in it, it was very old and 16 it was an old house, but we made it the best we can. 17 we always wanted to remodel it, and so we, for three 18 or four years, talked to contractors and we were 19 trying to come up with an idea on how to do that. 20 when I became prosecutor, I knew I could 21 close my private practice, then we wanted to do a 22 major remodeling of it, you know, to make it a Page 27 WELCH.txt 23 residence. And so that actually began, I think, in 24 october of 2002, right around that time frame. 25 Q. okay. 7ust to clarify, from 1994 to 2002, TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 31 1 other than any deployments or weekends, your primary 2 residence was the Mcconnelsville residence? 3 A. Yes, yes. 4 Q. who did you hire to do -- well, before I get 5 to that, what other things did you want to do with 6 this renovation? - 7 A. well, you know, I wanted -- again, if you 8 were ever in there, in the basement, there was an 9 old-style basement. You have big sandstone blocks and 10 kind of more of a dirt floor, so I wanted really a 11 more modern basement. We wanted to put kind of an 12 office, you know, library kind of place downstairs and 13 a family room. we couldn't do it that way, so that 14 was going to require someone to go under the house and 15 dig that out. we also wanted to add -- either enlarge 16 or add a whole new room, kitchen, and it was a 17 one-and-a-half-story house, so we wanted to go up a 18 little higher and put a full two stories on the house. 19 Q. so this was an extensive renovation? 20 A. Yes. 21 Q. who did you hire to do the renovation? 22 A. DLB Contractors. It was a contractor from 23 down in Waterford, Dennis slack. 24 Q. Did you know Dennis Black? 25 A. I have known him for a number of years, yes. Page 28 WELCH.txt TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 D 32 1 Q. Is that one of the reasons that you hired 2 him? 3 A. well, I talked to several contractors, but, 4 I mean, you know, Dennis was the one who -- who kind 5 of really gave me what I thought was a reasonable plan 6 for digging out the basement, you know, going under 7 the house and doing what I wanted. Everyone else was 8 saying: You don't need to do that; you should just 9 seal it up and -- but he was the one who said, you 10 know -- and it was -- he showed me a plan on how to do 11 it. so that, plus I knew him and his father and 12 family, and, you know, that made that decision. 13 Q. And how much was this renovation originally 14 supposed to cost? 15 A. well, I think the first part -- the first 16 plan we had, it was right around 30 to $35,000. we 17 were going to do the initial -- you know, what we kind 18 of talked about in the beginning. 19 Q. And -- 20 A. That would not have included the new 21 addition on to the house. 22 Q. And how long was.this reconstruction 23 supposed to take? 24 A. You know, we finally got to where -- from, 25 like I say, late fall of 2002 when we knew we were TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 33 Page 29 WELCH.txt 1 going to begin, we were anticipating being back in the 2 house in the fall -- you know, the end of the summer 3 of the next year, 2003, or end of fall. 4 Q. I want to show you what's been marked, we'll 5 call it welch Exhibit 1. It's a five-page -- sorry, 6 six-page document. would you take a look at that and 7 tell me what that is? 8 A. This -- these are a series of itemizations 9 and estimates that i received from Dennis Black, you 10 know, based on what we talked about in me doing the 11 house. And then -- the first page is actually the 12 original estimate that he and I signed. 13 The second page is a proof of his liability 14 insurance, and then the following three, four, five, 15 six, page seven are just additional itemizations as he 16 saw the project and broke it out in terms of price. 17 Q. And some of those additional itemizations 18 are dated in 1999. Do you know why that is? 19 A. You know, I think honestly I may have talked 20 to him in '99. As I said, we were talking about 21 renovating it, you know, for several years, even if we 22 had kept it as an office and home. It's either -- i 23 don't remember getting this in 1999, so it was either 24 that he still had that date or maybe his computer, you 25 know, calendar was messed up. I don't know, but the TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 34 1 date we began is the date I signed it here and dated 2 it october 29th, 2002. Page 30 WELCH.tXt 3 Q. And did construction begin in fall of 2002? 4 A. He started -- yes, he started doing some 5 things, you know, moving toward getting the house 6 ready for the major construction. 7 Q. And did you continue to live in the house 8 when the construction started? 9 A. Yes. we lived in the house until -- well, 10 actually, my wife left, I think, a month probably 11 before I did because the dust was getting so bad for 12 her, but i stayed until -- until he totally was 13 gutting the entire house, tearing out the walls, 14 everything. It was just uninhabitable, and that's 15 when I left. That would have been sometime in, you 16 know, around the spring of 2003 where I finally just 17 realized I couldn't stay there any more. 18 Q. And where did you go to stay during the 19 renovation? 20 A. To the selpre house. 21 Q. okay. And why didn't you rent a house in 22 Morgan County? 23 A. You know, honestly it was a matter of 24 finances. we were investing all the money that we had 25 saved or -- to get into that project. we had the TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 35 1 investment, and we had the property in aelpre, which 2 was big enough we could move everything from this 3 house down there and wouldn't have to get any extra 4 storage or, you know, incur extra expenses. 5 Q. How long -- Page 31 WELCH.txt 6 A. For up to a certain time we were also paying 7 double utilities until there came a time where they 8 did disconnect for safety reasons. They moved the 9 meter for the gas and were putting a new meter in up 10 to a certain time. 11 Q. I had a question to ask you and I'm trying 12 to remember where I was. How long did you anticipate 13 having to stay at the Belpre house? 14 A. Just until -- until the fall -- end of the 15 summer or fall of 2003. I mean, initially that's what 16 we thought. 17 MR. TIGNER: i'm sorry? 18 MR. YOSOwITZ: 3. 19 A. 2003. 20 Q. And did DLB construction finish in 2003? 21 A. No. 22 Q. what happened? 23 A. well, you know, I -- at times during that 24 period -- I mean, I was always up here, of course, at 25 the office and would check on it, and there were times TAHYI VIDEO & COURT REPORfiING, LTD. (800)526-6508 (740)454-7157 0 36 1 where I saw -- I didn't like some things that I saw 2 there of how the site was looking, you know, I wanted 3 them to clean it up and protect it a little bit, 4 especially as it crept in the summer toward fall 5 because you get a lot of people walking up and down 6 the street during football season. There was an 7 incident in the beginning of the summer where one of 8 his employees kind of knocked -- under the new Page 32 WELCH.txt 9 addition knocked in the wall with the backhoe, just 10 made a wrong swing with the boom and knocked it in, so 11 we had to get an insurer to look at that and make sure 12 we figured out a way to get that structure back on 13 track. 14 so, you know, in the fall, I would say, you 15 know, along about August or september I started 16 thinking we got to get this project moving because it 17 was just moving too slow. 18 Q. Did you address your concern to Mr. Black? 19 A. Yes, I sent him some letters during that 20 time period to talk about these issues. 21 Q. Keeping that in mind, I want you to take a 22 look at Welch Exhibits 3, 4 and 5. I know I skipped a 23 number. I'm going to get back to it. And referencing 24 the number, please tell me what those are. 25 A. Exhibit 3 is a letter I wrote him after TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 37 1 the -- we had the problem with the basement wall 2 telling him I think we ought to talk to his insurer to 3 just make sure that everything is covered, and then I 4 wanted to make sure that it didn't affect the 5 structure, you know, give some assurance that it was 6 going to be all right. 7 so that's the letter I wrote him about 8 telling him I think we ought to hear from his insurer 9 before we move forward, and, you know, get him up 10 there to take a look at it because I knew the insurer 11 would probably want to do that. Page 33 WELCH.txt 12 Q. Before you go on, so this accident with one 13 of his employees delayed construction on your house? 14 A. Right. 15 Q. okay. I'm sorry. Continue on. 16 A. And then in May 2003, this is where, you 17 know, I told him I would get up to look. I missed him 18 and I asked him to do some things about putting the 19 web fencing around the project site for safety. I 20 told him I had seen some damp spots in the basement, 21 moisture. I kind of told him that's something that is 22 really important to us because we wanted to fix up the 23 basement to be able to live in it. We didn't want a 24 lot of water problems in the basement, so it's 25 addressing the issues I saw down in the basement with TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 38 1 the dampness, some of the cracks in the one part of 2 the wall, just asking him for a status report on it 3 and to address those issues. 4 In August of 2003 I wrote him a letter and 5 told him basically I was shocked by how bad everything 6 was looking and people frankly were starting to 7 complain to me about how bad it was looking, you know, 8 because I was a public servant, I was cognizant, 9 really worrying about making sure that it was safe and 10 that it wasn't an eyesore to the community, so I was 11 trying to prod him to, you know, to get moving on the 12 project. 13 Q. Let me ask you this. why didn't you let him 14 go at that point? Page 34 WELCH.txt 15 A. You know -- I mean, he had done what 16 everyone else had said they couldn't do. He had dug 17 out -- the house had not fallen in. He had dug out 18 the basement. It moved pretty aggressively in the 19 very beginning, and because of the relationship, I 20 mean -- you know, work is tough and I know his whole 21 family, and so I was just trying to work with him and 22 get him back on track. I mean, I thought he was -- I 23 mean, he was a conscientious person and he had just, 24 as I said, done some things that others had not even 25 wanted to try, and it looked like they were okay. TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 39 1 Q. Now, the last letter there was in August of 2 2003. In september of 2003, you were called to 3 military duty, is that correct? 4 A. Right, the end of -- september 26th, you 5 know, I got the call that I was going to be mobilized 6 in support of Iraqi Freedom, so that was september 7 26th I had to report to Fort Hood, Texas on October 8 5th, so I didn't have much time. 9 Q. well, before we get there -- before you 10 left, did you try and get Mr. Black on schedule? 11 A. I did because I honestly tried to -- I 12 wanted to set up a plan. we were already overdue, you 13 know, to be back in the house, and I wanted to set up 14 a plan so that while I was gone he could execute the 15 phases of the plan to get my wife back so she wouldn't 16 have to worry about that as an additional thing while 17 I was gone. so we sat down and drafted a plan to do Page 35 WELCH.txt 18 that. 19 Q. okay. And I want to show you what's been 20 marked as Welch Exhibit No. 2. Can you tell the Board 21 what that is? 22 A. Right. This is a description of the plan 23 that had six phases to it where each phase had a 24 particular part of the project that we would do and 25 the monetary amount that we would require. And we had TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 40 1 it set up so that he would, you know, ask for the 2 money either from my wife or go to the bank. The 3 waterford Bank had the loan to get the -- to get the 4 payment, so it was set up in six phases that should 5 have been finished into the end of the year, around 6 the middle of November, the first of December of 2003. 7 Q. okay. In September of 2003, you're deployed 8 in support of operation iraqi Freedom. Let me just 9 ask you briefly. what do you do in the military? 10 A. Well, i'm a special forces officer, you 11 know, I am right now being used in my unconventional 12 warfare specialty, and I run the reconciliation 13 program for Baghdad province, which is also the tribal 14 awakening to fight Al-Qaeda. That's what I do now. 15 what I did then was I was a civil military 16 advisor for the commanding general of the province in 17 Baghdad, and we were responsible for all the 18 reconstruction, all the, you know, working setting up 19 the government offices, the civil constitution, that 20 type of thing. Page 36 WELCH.txt 21 Q. How long have you been in the military? 22 A. In 15 days it will be 36 years. 23 Q. And let me ask you sort of an abstract 24 question. while this was going on, if you wanted to 25 leave the military to take care of this stuff, could TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 41 1 you have left the military? 2 A. I wouldn't have been able to get, you know, 3 leave, emergency leave to take care of it. And 4 when -- when September 11th happened, 2001, there were 5 some critical skills in the military that military was 6 short. one of them was special forces trained 7 personnel, so they put a stop-loss on, you know, 8 reassignments and retirements and that type of thing, 9 so I was stuck under the stop-loss. 10 Q. If you wanted to retire from the military 11 today, you've got 36 years, would you be able to? 12 A. I have enough years to retire. The question 13 is how they would release me under the stop-loss. 14 Q. so you're deployed in september 2003. How 15 long is that deployment for? 16 A. well, that was october. I left in October 17 of 2003, and the first three months I went to Fort 18 Hood, Texas, and then they sent me to jordan for some 19 special training, and then I came back to Texas. Then 20 I deployed to Iraq in January of 2004. So the whole 21 period of time during that time was 21 months. 22 Q. what's going on with your house while you're 23 in the military? Page 37 WELCH.txt 24 A. Well, I came back here December of 2003 for 25 my Christmas -- they gave everyone block leave before TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 42 1 we all deployed to Iraq, and I saw that Dennis had not 2 finished. He still wasn't on schedule. He had done 3 some things, but he wasn't on schedule. So I went to 4 him again and, you know, he reassured me that he would 5 have it ready by the end of the spring for my wife 6 to -- you know, so she could get back in while I was 7 gone. 8 Along about sometime maybe in the spring of 9 2004 I started getting emails from, you know, some of 10 my family and from my, you know, secretaries who were 11 saying: Hey, you know, we haven't seen Dennis at the 12 project for a while, we're not sure that he's working 13 on the project. Everybody was trying to shield me 14 from it. They didn't think I needed that extra 15 stress, but I said: No, i need to know what's going 16 on with the project. Then they kept, you know, kind 17 of giving me an update. 18 I had my family trying to find Dennis, my 19 brother and my father at the time to try to locate him 20 and try to figure out what was going on. I was 21 emailed some pictures that showed the condition -- 22 what appeared to be the condition of the house. so I 23 was starting to realize at this point I think he's 24 just not going to finish the project. 25 Q. when did you get a chance to first see the TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 Page 38 WELCH.tXt 0 43 1 house again yourself? 2 A. I came home for leave in December of 2004 3 for, I think, two and a half weeks, so I overlapped 4 December of '04 to January 2005, and that's when I saw 5 it. 6 Q. What was the condition of the house? 7 A. It was just totally gutted. I mean, it 8 looked like -- it looked like, you know, someone had 9 just gone in there and destroyed everything. I mean, 10 it was totally, of course, uninhabitable. 11 Q. And why was it uninhabitable? 12 A. well, because Dennis had just abandoned the 13 project. He just left and didn't complete the 14 project. And he had left -- he left the house 15 unsealed. He didn't even seal it up, so it became a 16 home for pigeons. They lived there during that time 17 period and, you know, just left it in a mess. 18 Q. I want you.to take a look at welch Exhibits 19 6-A through 6-N. Just flip through those and tell me 20 when you're done. 21 A. okay. 22 Q. And what are those pictures of generally? 23 A. These are pictures -- it looks like all of 24 them are pictures of the inside of the Liberty Street 25 or Liberty Avenue home. And, I mean, they were sent TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 44 1 to me. These were pictures that were captured, I Page 39 WELCH.txt 2 think it was in -- I think sometime early 2004, I 3 believe. 4 Q. okay. And when you came home in late 2005, 5 early -- in late 2005, is that a fair and accurate -- 6 A. or 2004. 7 Q. 2004. Thank you. Is that a fair and 8 accurate depiction of how your McConnelsville home 9 looked? 10 A. Yeah. 11 Q. In Exhibit 6-A I notice there's a lot of 12 white dots on the floor -- well, boards that are on 13 the floor. Do you know what those are? 14 A. Pigeon droppings. 15 MR. YOSOWITZ: And, Mr. Padden, we'll 16 make all these available following the hearing. 17 Q. so at that point, even if you had wanted to 18 come back and live at that house, it just wasn't 19 possible? 20 A. It was completely gutted. I mean, you 21 know -- 22 Q. Did you still want to come back to the 23 house? 24 A. well, I didn't want to come back and live 25 there, but, I mean, yes, I mean, we put a lot of money TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)4 54-7157 0 45 1 into it. I mean, that's where we had intended to, you 2 know, come back to. 3 Q. You didn't want to live there when it was in 4 that condition? Page 40 WELCH.txt 5 A. No, no, it was unequipped for anyone. 6 Q. And while you were on leave in late 2004, 7 early 2005, did you attempt to contact Mr. Black 8 again? 9 A. I did. I tried to find him. I had trouble 10 finding him. I finally wrote him a letter that -- I 11 honestly can't remember if I delivered it to his 12 house, a copy to his house in waterford and left it 13 and then I sent some registered mail to him. 14 Q. would you take a look at Welch Exhibit No. 7 15 and tell me what that is? 16 A. Yeah, this is a letter I wrote dated 7anuary 17 10th, 2005 where I told Dennis about what I saw when I 18 came back, how much I had paid him and I considered 19 him, you know, to be in breach of the contract, and I 20 told him to do certain things, one of which was to 21 turn everything over to a new contractor that we had 22 talked to, which he said that he could finish the 23 project. 24 Q. And did he respond to you? 25 A. He did. I mean, i've seen this letter 0 TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 46 1 you're getting ready to show me. 2 Q. This is Welch Exhibit No. 9? 3 A. I think he probably gave that to my father 4 or brother. I don't remember when, but Dennis, this 5 was his response where he says, you know, there was no 6 contract. He says that he ceased work in the middle 7 of January because of failure to work out financial Page 41 WELCH.txt 8 matters. That's why we had the phase plan, all the 9 finances were at the bank. He just obviously used the 10 money and didn't do the work and didn't buy the 11 materials. 12 Q. okay. And did you make it -- did you have 13 to make an insurance claim based on the condition of 14 the house? 15 A. I did. I mean, to me it was not a matter in 16 which he just walked away, it was the condition in 17 which he left the house. it was like he destroyed the 18 house. so I did write a letter to his insurance 19 carrier to try to see if there was an insurance claim. 20 We were frankly out of money, you know, I mean, to do 21 it. we were going to have to go back to the bank and 22 try to get additional money, so I thought if there was 23 an insurance claim available, that certainly would 24 have helped. 25 Q. And looking at welch Exhibits 8 and 10, can TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 47 1 you identify those? 2 A. Exhibit 8 is the letter I wrote to Miss 3 Corinna Hall. she was the Grange Insurance claims 4 representative. This is a letter telling her -- 5 trying to make a claim, and then also we had contacted 6 Rich Lemal, the person I told you about. we wanted 7 him at least to seal the house. He was willing to 8 seal the house and then clean it up. He wasn't going 9 to be able to get to the construction right away, but 10 we wanted to seal it so it wouldn't suffer any further Page 42 WELCH.txt 11 damage. 12 Q. And how do you spell Richard's last name? 13 A. L-E-M-A-L. 14 Q. And he's another contractor? 15 A. Yes. 16 Q. And did they accept or deny your claim? 17 A. They -- this was a claim for the damages and 18 for the cleanup and they -- they said we'll pay you 19 for -- I forget, it was a minimal amount -- if you 20 sign away all your liability claims against DLB 21 contracting, and, of course, I wasn't willing to do 22 that at that point in time. so we ended up paying 23 Mr. Lemal just to clean it up and seal it to protect 24 it. 25 Q. And that's what welch Exhibit 10 is? TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 48 1 A. Exhibit 10 is actually from my insurer. 2 Q. okay. 3 A. You know, we wanted to put our insurer on 4 notice that we've got a problem at the house and, I 5 mean, they came out and inspected and said: Yeah, the 6 house is uninhabitable. The birds have infested it 7 and they dropped my insurance because of it, so, you 8 know, they said we can't insure this it's so bad; we 9 can't insure it. we did get insurance through another 10 carrier, but -- 11 Q. okay. so what did you decide to do at this 12 point? 13 A. We decided to get with the new contractor. Page 43 WELCH.txt 14 As I said, all he could do in the spring of 2005 was 15 seal it up, and then once we agreed on -- or got the 16 situation with the money for the cleanup, he cleaned 17 it up. But then I had to go back when I came back 18 from Iraq in July of 2005. It was only two weeks and 19 they sent me on my way to the Army war college for ten 20 months, so we had to then begin working with the bank. 21 we had to get a second mortgage on the house in 22 Belpre, you know, and go through title searchs, 23 appraisals, and all that type of thing, so that 24 delayed it, but he then began work on the project in, 25 I think, september of 2005 -- TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 49 1 Q. okay. 2 A. -- to try to finish the project. 3 Q. so this project that originally started in 4 2003 is still going on in 2005? 5 A. Yes. 6 Q. okay. And Exhibit 11 is the estimate from 7 Mr. Lemal? 8 A. Yeah. There was one just before this. This 9 was the final -- his final estimate when -- we wanted 10 him to give us an estimate on what it would take to 11 finish what we had started in 2002, so this was the 12 estimate which was just a little more than what we had 13 already paid and sunk in the property. 14 Q. okay. And before Mr. Lemal started and took 15 over for Mr. Black, you wrote one more letter to 16 Mr. Black? Page 44 WELCH.tXt 17 A. I believe so. 18 Q. And that's in Exhibit 12. And what does 19 that letter address with -- address with Mr. Black? 20 A. I think I had -- this was -- you know, I 21 came back from Iraq in ]uly of '05, and I met with 22 Dennis, you know, to tell him: okay, what are we 23 going to do? He said: well, I need to know what your 24 position is. so I wrote him a letter telling him what 25 my position was, you know, with regard to him. TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 50 1 Q. okay. 2 A. And that's what this letter is. 3 Q. so you're only back for a couple weeks and 4 then you have to -- not deploy, but you have another 5 military assignment? 6 A. Right. 7 Q. And where do you go? 8 A. Carlisle, Pennsylvania to the Army war 9 college. 10 Q. And how long was that assignment for? 11 A. It was -- the school was actually ten 12 months. I was there until June 10th of 2006 is when I 13 graduated. 14 Q. And what happened after june of 2006? 15 A. I came back to Ohio. 16 Q. And was your ohio house habitable at that 17 point? 18 A. No. 19 Q. okay. And how long were you back -- and so Page 45 WELCH.txt 20 you're living at the Belpre house? 21 A. Right. 22 Q. And incidentally, did you ever hide the fact 23 that you were living at the Belpre house? 24 A. No. I mean, you know, many conversations -- 25 I actually came up -- Mr. Tigner will remember in my TAHYI VIDEO 0 & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 51 1 first campaign right at his front porch, you know, 2 some people had raised the fact that I owned a house 3 down in Belpre and we -- you may not remember, but we 4 talked about it. And I told him, as I told everyone, 5 our intent was to eventually renovate this place and 6 turn it -- you know, actually rehabitate it. 7 And I think the night that you're talking 8 about at the library, Mr. Tigner talked about it, and 9 I think I remember he said: well, if I don't follow 10 through with these issues, you know, of corruption, 11 you know, looking into them, he would have a reason to 12 remove me from office. so, you know, the fact that he 13 seems surprised about this is, you know, disingenuous, 14 I think, but -- but I never hid it. It was something 15 that was always certainly on my mind because I do 16 understand the issue. 17 And I'm very sorry for the Board that I have 18 caused them this trouble honestly and this issue, but 19 our intent has always been to get into this as our 20 permanent residence and we spent a lot of money to get 21 there. 22 MR. TIGNER: I wanted to object for me. Page 46 WELCH.txt 23 MR. YOSOWITZ: What's the basis of your 24 objection? 25 MR. PADDEN: You'll get a chance to ask TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 ( 740)454-7157 0 52 1 him questions when he's done. 2 MR. TIGNER: okay. 3 Q. okay. You're back here. You're working at 4 the prosecutor's office until -- and this is in 2006 5 until when? 6 A. June of -- then I got notified again in late 7 2006 that, you know, I was going to have to pull 8 another tour in Iraq in which I left in February of 9 2007. 10 Q. Did you have any choice in the matter? 11 A. No. 12 Q. And how long was this scheduled deployment? 13 A. This one was one year. It was a one-year 14 deployment, and then when I was there, they tapped me 15 to stay another year, so I'm still there. 16 Q. 5o this is your current deployment? 17 A. Right. 18 Q. And during this time, was -- did Mr. Lemal 19 finish work on your house or -- 20 A. You know, he finished it to where we thought 21 we could start getting back into the house. we didn't 22 have enough funds to finish the entir e house. We 23 still have the basement unfinished. we've got the 24 water issue that we're going to deal with. Two 25 bedrooms and a half bath upstairs are still not done. Page 47 WELCH.txt TAHYI VIDEO 0 & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 53 However, he had finished it where we, you know, we thought we could move back in and live there, and in, I think, August of 2006, right around in the fall we began bringing things back and I stayed there from time to time during that time, you know, in bringing things as we could. And then after I got notified that I was going to be deployed, we rented the U-Haul truck and started doing a major move-in in December of '06. And right after the first of the year, right after Christmas holiday, and then we had another setback. we had a really -- you know, a pipe that was exposed under the kitchen sink that broke and we came in and, you know, water about two inches on the kitchen floor and the dining room floor there that required an insurance, you know, claim in terms of to fix it. That didn't get fixed until -- he didn't get the damage to the floor fixed until, I think, around February of 2008 of this year, and then my wife began, you know, again continuing to move things in and splitting her time between getting this house set up again and, you know, out-loading the house down in selpre, which has been for sale since just before I left for Iraq the last time. Q. In February of 2007? A. '07, right. TAHYI VIDEO & COURT REPORTING, LTD. (800)S26-6508 (740)454-7157 0 54 Page 48 WELCH.txt 1 Q. So the house in Belpre was on the market in 2 February of 2007 in an anticipation of finally being 3 able to move back to -- 4 A. Right. 5 Q. -- McConnelsville? 6 A. Right. And honestly, we weren't really -- 7 we wanted to hold on to it as an investment, but we 8 just can't. Financially, we are going to have to try 9 to sell it. 10 Q. In order to pay for the renovation? 11 A. Right, right. 12 Q. And as it stands presently, you moved a good 13 amount ofyour stuff back in to your McConnelsville 14 home? 15 A. Yes. still living out of boxes, but -- 16 Q. But you're able to stay there? 17 A. Right. 18 Q. And while all this was going on, did you get 19 mail at your McConnelsville house? 20 A. Yeah. we never stopped getting mail. our 21 official mail at this address -- you know, as you 22 said, all the tax records, all of my military orders, 23 all of my official mail comes to this address. we 24 never changed it. we did have a time where we 25 disconnected, as I said, the utilities and the phone, TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 55 1 you know, we disconnected. You know, we have cell 2 phones now, so that's what we used mostly, so you're Page 49 WELCH.tXt 3 right about the telephone. 4 Q. Do you use your cell phone as a primary 5 phone now? 6 A. Did I when I was here? I had to use it, you 7 know, since i've been gone. 8 Q. so your military orders came to the house in 9 Mcconnelsville. what would happen if you didn't get 10 those records orders? 11 A. I could try to tell them I didn't get them, 12 but I would probably be at Fort Leavenworth in a 13 confinement facility. 14 Q. You pay taxes on the McConnelsville home? 15 A. Yes. And it may still be listed as an 16 office, but the auditor will do -- he and I have 17 talked about it. He will do a reassessment of it 18 since the major construction, so I anticipate that 19 whenever he does that, then that, of course, will 20 change. 21 Q. Notwithstanding the fact that it was listed 22 as an office, you were actually living there? 23 A. Right. 24 Q. Regardless of how it was listed? 25 A. Right. 0 TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 56 1 Q. okay. Mr. Tigner mentioned notice for the 2 hearing and notices from the Board of Elections. Did 3 those also go to the Mcconnelsville house? 4 A. I think they sent one to each. They were 5 trying to cover all the bases I think, so they sent Page 50 WELCH.txt 6 one to the Belpre house and one to McConnelsville and 7 I got emails in iraq so that they made sure what was 8 going on. 9 Q. okay. I'm going to show you some final -- I 10 don't have these marked yet, but these will be marked 11 as Exhibits 13-A through 13-F. Take a look at those 12 and tell the Board what those are. 13 A. These are pictures of the outside and the 14 inside of the Liberty Street house, and I think these 15 were taken in September 2005 when Mr. Lemal, the new 16 contractor, actually got in and started working to 17 finish the project. He had sealed it up, as I said, 18 earlier in the year, but hadn't been able to get back 19 to actually start the construction. And this just 20 shows kind of some of the same photos, but it's been 21 cleaned up and he's redoing some of the work inside. 22 Q. And Exhibits 14 and 15? 23 A. It just notes -- it's kind of listing some 24 of the payments that we had made to Dennis Black from 25 the beginning until July of 2003 in that time period, TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 57 1 and it also lists some things that have been bought. 2 It's not everything, but it's up to date as the 3 amendment to the last three there. 4 Q. And is 15 about the same thing? 5 A. 15 is just another -- right. 15 does the 6 same thing, but tries to say, okay, what was it for 7 and has it been completed. I was trying to determine 8 what he had actually done for the money that he had Page 51 WELCH.tXt 9 received, so this is my handwriting in 14 and 15. 10 Q. And, total, how much would you say you spent 11 on this renovation? 12 A. You mean to date? 13 Q. To date. 14 A. Probably 140, $150,000 we have sunk into the 15 property. And, of course, it's not finished yet. 16 it's nice now. if you see it, it bears no resemblance 17 to these pictures, but it's been a long time getting 18 it done. 19 Q. And where do you want to live? 20 A. At that address, the Mcconnelsville. 21 Q. And have you always intended to return to 22 that address? 23 A. Yes. 24 MR. YOSOWITZ: One moment, Mr. Padden. 25 Q. Just so we're clear, you don't dispute that TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 58 1 at the aelpre house that the utilities were on at that 2 house, and you paid those utilities? 3 A. when we initially went there, though, we 4 were just using it like one or -- a Friday or a 5 Saturday. we just put in the bear essentials, you 6 know, just enough to make it comfortable for the time 7 we were there, and as we vacated this house, we moved 8 everything we had there. 9 Q. And the reason the utilities were turned off 10 at the Morgan County house, your McConnelsville house 11 was A, because the house was gutted, and B, for safety Page 52 WELCH.txt 12 reasons for the workers inside? 13 A. Right. And it appeared at the time we 14 had -- the gas meter was down in the basement inside, 15 for instance, we were going to move it, so we had to 16 get someone in there to be able to shut the gas off in 17 time for them to move it, so there was a period of 18 time where some of those services were totally 19 disrupted, but it was because of the necessity of the 20 project. 21 Q. well, I think that's all I have. Is there 22 anything else you would like to say? 23 A. Again, I apologize to the aoard. This is an 24 issue that I certainly know you have more and better 25 things to do and I really do apologize for the people TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 59 1 of the county even creating the situation where that 2 question could be raised. we intend to reside here. 3 We put a lot more money in this house than we have the 4 house down in Washington County, and that's where I 5 intend to return when they let me return. I withdrew 6 my candidacy because I thought if that resolves the 7 issue, I mean, I honestly was in a position to deal 8 with it where I was and where I was going at the time, 9 and I thought, well, perhaps that's -- that's -- that 10 would resolve the situation and it obviously didn't. 11 So I know all of you. I trust your judgment and 12 whatever you decide. I bear no ill will to anyone. I 13 just am sorry we created that situation. 14 Q. one last question regarding your candidacy Page 53 WELCH.txt 15 and your time as prosecutor. How has your military 16 duty affected either being prosecutor or running for 17 prosecutor? 18 A. I mean, that's the other thing. I mean, you 19 know, everyone here I know is a patriot and everyone 20 supports the veterans, and they have supported me, but 21 the thing that weighs on your mind is at some point 22 you realize, if they are never going to let me come 23 back for a while, I need to vacate the office. we 24 need to get someone in here that can help the county, 25 especially in this time of crisis for the county. So TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 60 1 i appreciate all the support, but it's just obvious 2 it's just not a -- you know, i'm just not able to get 3 it done. 4 MR. YOSOWITZ: Thank you. I would 5 offer these to the Board, Exhibits 1 through, I think, 6 15. 7 MR. PADDEN: Thank yOU. Does the Board 8 have any questions for Mr. welch? 9 MS. PINNOCK: I'm Louise Pinnock, and 10 you know that. What I want to know is if you had not 11 been called away, if you had been able to stay here 12 and supervise getting the remodeling done, would you 13 be back in Morgan county by now? 14 MR. WELCH: Yes, yes. I mean, 15 that's -- and that was the other frustrating part for 16 me. Everyone I got to help me had their own issues in 17 their life. No one can handle your problem as well as Page 54 WELCH.txt 18 you can. But, yeah, if i had been here, I would have 19 continued pressing or sling-loaded as we say in the 20 military and move on with a new.contractor. 21 MS. WALLACE: Mary Anna Wallace. You 22 know, when we take on the Board of Elections, we take 23 an oath just like you did when you're a prosecutor. 24 we uphold the laws in the united States and the state 25 of Ohio, and if we knowingly know something and don't 0 TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 61 1 take an action, then we've committed a felony, and 2 that felony is a fourth degree, six to eighteen months 3 in jail, $5,000 fine. 4 Now, if we go and people come in to register 5 to vote and we sign off and said yes, that person 6 lives here and they don't live here, we are 7 responsible, right? 8 MR. WELCH: Right. 9 MS. WALLACE: BUt your responsibility 10 was to live here to vote, and you didn't, right? 11 MR. WELCH: No, I was a resident. I 12 was a legal resident of this county. 13 MS. WALLACE: what made it legal if you 14 were sleeping in Belpre? 15 MR. WELCH: Well, but I intended to 16 return. My absence was not -- my absence from the 17 county was necessitated because of what I have 18 described and because of our situation. we intended 19 to return to this county, and everything we did was 20 designed not to -- not to, you know, pour more into Page 55 WELCH.txt 21 our place in Washington county, but deport it here as 22 fast as we could to get back here. 23 So my intent always has been to return, you 24 know, and for the period of time I was away on 25 military duty, I was a resident where I resided, my TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 62 home of record, my military home of record was here, so in my view, I was a resident and a qualified -- MS. WALLACE: All right. Tell me this. You're in iraq. something happens to you. They are going to notify your wife. Are they going to come to Liberty, or are they going to Boulevard? MR. WELCH: Actually, they were going to notify my brother because I didn't want my wife to be the first one to hear, so I listed my brother as the person to notify. MS. WALLACE: okay. This is from the auditor in Washington County. You had your house in Belpre remodeled also, right, according to this? MR. WELCH: Some things. It was nothing major. MS. WALLACE: It said you changed from a two to three bedrooms, and you added -- what does it say here -- 1,200 square feet. MR. WELCH: I can't believe that. It looks like the same place I left. No, this is not -- MS. WALLACE: That's not your house? MR. WELCH: No. Well, now, yeah, 23 this -- okay. This is the sale price. This is who we Page 56 WELCH.txt 24 bought it from, but we didn't do anything like add a 25 rec room or anything like that. TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 63 1 M5. WALLACE: It says it was done. 2 MR. WELCH: Yeah. I don't know what to 3 tell you. 4 M5. WALLACE: You didn't remodel the 5 house? 6 MR. WELCH: No. I think the only thing 7 my wife had done while I was gone is put laminate down 8 on a couple different floors. 9 MS. WALLACE: Well, this is 2003. 10 MR. WELCH: No. I'm sorry. We didn't 11 do any construction. we didn't add a rec room or do 12 any change or restructure of the house. 13 MS. WALLACE: Your tax bill from the 14 Belpre house, where does that go? 15 MR. WELCH: That goes to the Belpre 16 house, I think. Anything related to that house we 17 have go directly to that house. 18 MS. WALLACE: Okay. I'm really 19 concerned about this. You had to move to Belpre 20 because you were having this house remodeled. why 21 didn't you sell the Belpre house then and you would 22 have had the money and you could have stayed here? 23 MR. WELCH: I felt a lot of things like 24 that -- my father told me: Don't start this project, 25 you will end up putting more in it, and he was right. TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 Page 57 WELCH.txt 0 64 He just went along and said: Good luck with this. MS. WALLACE: HOW was the investment supposed to work in Belpre? was it a rental investment? MR. WELCH: No, we bought the house. The family had several pieces of property that they wanted to sell. They didn't want all of that income coming in that was taxable to them, so they went to their city people. so we bought the house, they financed it, so they hold the first mortgage and we pay them, and it's like a stream of income for them. MS. WALLACE: But how was it supposed to work for you? MR. WELCH: well, we were hoping that the house would increase in value. It's in a residential area. it's not far from schools. It's a corner lot, so we thought maybe it will increase in value and we can settle at some point in the future or hold on to it and return. We can rent it out, but we needed it during this project. That's why we ended up there. MS. WALLACE: But it was in the wrong county. MR. WELCH: obviously. ASCAL WILSON: I just have a few TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 65 1 questions also with politics aside and personal Page 58 WELCH.tXt feelings aside. Azcal Wilson, Board of Elections. But according to what you were sworn in to do, make a decision, my first question, what was your address you gave to the military as your residence when you signed in to the service? You were sent to service in 2007. MR. WELCH: 108 East Liberty, McConnelsville. Thank you. That's my home address. MS. WILSON: Does your wife have relatives or good friends that live in Belpre? MR. WELCH: She has -- yes. No family lives in Belpre, but there are some vietnamese people that live in Parkersburg and Belpre. MS. WILSON: And she likes it better possibly down there than possibly up here? MR. WELCH: Well, the vietnamese folks, the women kind of run together like some of our circles, so they do have a lot of close friendships. MS. WILSON: I can understand that being in the service. And do you think she'll be happy to move back here to Mcconnelsville? MR. WELCH: As long as i'm there probably she will, but no, she's -- I mean, it's tough for her also, but she's not that far away that she can't visit with the people there. I mean, and TAHYI VIDEO 0 & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 66 honestly, until we sell the house, you know, she has a close friendship and can go to their house. MS. WILSON: okay. I believe that's all. Thank you. Page 59 WELCH.txt 5 MR. PADDEN: Other questions for 6 Mr. Welch? 7 MR. TIGNER: I do. 8 MR. PADDEN: Have you ever voted in 9 washington County since, say, 2000? 10 MR. WELCH: No. 11 MR. PADDEN: All right. Yes, sir. 12 MR. TIGNER: You stated earlier that 13 you left the house on Liberty in the spring of 2003 14 because you were getting cluttered out of the 15 building? 16 MR. WELCH: Somewhere after the first 17 of the year. 18 MR. TIGNER: So you was living in the 19 house without any water? 20 MR. WELCH: There was water in the 21 house. 22 MR. TIGNER: Not according to the water 23 company. 24 MR. WELCH: There was water there until 25 I left whenever that was. TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 67 1 MR. TIGNER: water where? 2 MR. WELCH: There was water there until 3 I left the hous e. 4 MR. TIGNER: Okay. But you left in the 5 spring of 2003, but you wrote a letter on May 14th of 6 2003, which is saying: I was up to look at the house 7 yesterday and apparently missed you. Everything looks Page 60 WELCH.txt 8 like it is progressing. 9 MR. WELCH: Right. 10 MR. TIGNER: So which way was it, 11 Mr. Welch? You stated -- you are under oath. I 12 raised my hand and swore to tell the truth, but you 13 committed perjury a little bit ago when you say our 14 conversation at the library having to do with 15 residency, we talked about sheriff ]enkins, Dave 16 white, 7r., but nothing was ever said about your 17 residency because I didn't know anything about it at 18 that time. 19 MR. PADDEN: Mr. Tigner, ask him a 20 question. Don't make a statement. You're here to ask 21 him questions. 22 MR. TIGNER: Do you want to take that 23 back, you know, that that conversation was there 24 because Trent was there and that was never said. I 25 mean, you must be mistaken. TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 68 1 MR. WELCH: There are two questions. 2 The first one is the letter I wrote was after I had 3 left, you know, the house, whenever it was. I don't 4 know the exact date, but the May letter was after I 5 had vacated the house. so, you know, chronologically 6 it's after I vacated. 7 The conversation with you, you're right, the 8 meeting was not about this. The meeting was about 9 those things that you said. You made the comment to 10 me about my residency because I was asked about it, Page 61 WELCH.tXt 11 and you said: Well, maybe this is something I can 12 use -- if you don't follow through and do these 13 things, maybe this is something i can do to have you 14 removed. 15 MR. TIGNER: That sounded like I was 16 threatening you. 17 MR. WELCH: No, it was your clever way. 18 You had your smile on your face. 19 MR. TIGNER: That sounds like I'm 20 threatening you, but I'm telling you there was no 21 comment said like that. it was not brought up. 22 MR. YOSOWITZ: Is there a question? 23 what's your question? 24 MR. WELCH: My recollection is that's 25 what you said to me. TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 69 1 MR. TIGNER: Did you, from 2002 until 2 now, live in Morgan county where you could actually 3 vote according to the law where your present intent 4 today -- present intent was to uphold the election 5 Board, is your present intent, not whether you 6 intended to return, not whether he thought he would 7 return. Present intent to vote means now, do you 8 understand that, Mr. welch? 9 MR. WELCH: Not really. 10 MR. YOSOWITZ: Hold on. Hold on. He's 11 basically asking him the legal conclusion of this 12 meeting, which is up to the Board, and they will 13 interpret the law in the way they see fit. so asking Page 62 WELCH.txt 14 him if he's a qualified elector is not a proper 15 question. 16 MR. TIGNER: Well, he's a prosecuting 17 attorney advising the Board of Elections. He's 18 supposed to be an advisor. He should know whether 19 he's a qualified elector. I'm asking him if he was a 20 resident here to be able to vote according to what the 21 statute says? 22 MR. PADDEN: I think that question is 23 fine. 24 MR. WELCH: My answer is yes, and my 25 present intent is and always has been that this is my TAHYI VIDEO & COURT REPORTING,LTD. (800)526-6508 (740)454-7157 0 70 1 legal residence. 2 MR. PADDEN: This being? 3 MR. WELCH: 108 EaSt Liberty Avenue, 4 McConnelsville ohio. 5 MR. TIGNER: DO you realize to be an 6 elected official you have to reside in the county? 7 MR. WELCH: Yes, I know all of those 8 statutes. That's why this has been such an issue and 9 why we're trying to resolve it. 10 MR. TIGNER: with a job that's paid 11 90-some thousand dollars, why wouldn't you reside in 12 the county where you're supposed to be a resident? 13 MR. WELCH: Because -- 14 MR. YOSOWITZ: I'll object. It's our 15 position he did. For the legal purpose of residency, 16 he did reside in the county. Page 63 WELCH.txt 17 MR. TIGNER: I'm done. 18 MR. PADDEN: Okay. Mr. Tigner, do you 19 have any other questions for Mr. Welch? 20 MR. TIGNER: No. I'm done. 21 MR. PADDEN: Yes, ma'am. 22 PADDY SHAFFER: My name is Paddy 23 Shaffer. I'm the director of the Ohio Election of 24 Justice Campaign, a national organization that is 25 looking at elections across this country. This TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 71 1 situation has been brought to our attention and we 2 have been watching it unfold for a little while now. 3 I also am an artist, and visual things help 4 me a lot, so here was one of the things that I needed 5 to understand. so I got a little county map here, 6 okay? This is Morgan County. okay. over here is the 7 ohio River done in this beautiful shade of blue. 8 Morgan County is a beautiful county. 9 MR. YOSOWITZ: Excuse me. is there a 10 question? 11 MS. SHAFFER: I have a question that 12 will go with this, and this is real important because 13 this gets to the root of the whole thing. Morgan 14 County is a beautiful, beautiful county with wonderful 15 people that deserve to have a good prosecutor and 16 officials of all levels. This place deserves to be 17 run well. 18 I'm appalled by what I have learned so far, 19 and coming in and taking a look at the situation, I Page 64 WELCH.txt 20 have never seen a county looking as dyer as this one 21 looks. so that whole thing is -- many of you are 22 here, and from what I understand, this is how things 23 are always going. Know from an outsider's point of 24 view, this is really troubling. 25 so here's Morgan county. Here's Belpre. I TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 72 1 asked about how long it takes. What is it, about a 2 40-minute drive? You're out of the county. That is 3 not in this county. 4 I have run as a candidate for the united 5 States Congress before. i know when I filled out 6 those forms, they said on them -- 7 MR. YOSOWITZ: I'll move to strike. 8 MS. SHAFFER: It said on the form that 9 what I was filling out -- and i don't remember the 10 exact words, but the idea that if I put in something 11 false, it was a felony. I took that very seriously. 12 I studied my forms. I thought about every answer I 13 put on my forms. I can't imagine as a candidate to 14 put in an address that I don't live at. I can't 15 imagine going and voting, something that I consider a 16 very important right in this country and something not 17 to take lightly. 18 And as I have been studying elections across 19 this nation, and i've been called into many states to 20 study what happens, and I have heard over and over 21 about voter fraud, voter fraud. We've got to watch 22 out for it. What I found the big problem is, election Page 65 WELCH.tXt 23 fraud. i'm much more concerned with the technician 24 that has access to hundreds or thousands of machines 25 than I am about Barney smith going and voting twice, TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 73 1 okay? 2 But if this was anyone else than a prosecutor 3 who was living in another county wanting to vote here, 4 you guys would probably have him locked up in jail 5 quickly and we would hear in the local papers voter 6 fraud, voter fraud. This is a great example of it. 7 The election center in Texas, the Ohio Association of 8 Election officials, we all talk about it, and this is 9 very valid across this nation. 10 if you look at Tova wang's report, the 11 EAC -- 12 MR. PADDEN: Ma'am, I'm going to 13 interrupt you. 14 M5. SHAFFER: -- on voter fraud, this 15 is serious. And the man did not live here. 16 MR. PADDEN: Do you have a question for 17 Mr. Welch? 18 MS. SHAFFER: I do. 19 MR. PADDEN: Could you ask him that 20 question? 21 Ms. SHAFFER: Within this county and 22 representing these people, do you really think that 23 you would feel good if the other people running the 24 offices no one lived here, if they didn't live in the 25 county, if everybody pretended they lived here, would Page 66 WELCH.txt 0 TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 74 1 that be okay? 2 MR. WELCH: No, and I agree with 3 everything you said. The difference is I didn't live 4 in the other county and then sneak into Morgan county 5 and ask to be elected as a prosecutor. I lived in 6 Morgan county when I was, you know, asked to run for 7 prosecutor, and the only thing that necessitated my 8 temporary absence was something I couldn't foresee, 9 but out of necessity. so everything we've done, every 10 dime we've spent is to get back into the county as 11 fast as we can. 12 MS. SHAFFER: It'S irrelevant as a 13 candidate. it's irrelevant as elector. You have to 14 live in this county. 15 MR. YOSOWITZ: Ob]ection. 16 MR. PADDEN: Okfly. Keep the question 17 to him. 18 MS. SHAFFER: And so from this 19 standpoint, how are the voters of this county supposed 20 to look at their ballots this year? And so this is 21 kind of two-fold, it's to you: one, I would like to 22 know your opinion, but the Board of Elections, the 23 voters learn about the situation. How many candidates 24 are they supposed to trust actually do live in their 25 district? TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 75 Page 67 WELCH.txt 1 I understand there's a village council 2 person that doesn't live in the district and 3 somebody's playing with borderlines, so that's two 4 incidents of this in this county. I understand that 5 as far as even other requirements and things coming 6 out of your office, that Mr. Howdyshell working for 7 you blocked Mr. Tigner from being a sheriff candidate. 8 This is under your direction because you're the 9 prosecutor. Granted, you're not in the country at the 10 time is my understanding. Did that situation ever get 11 resolved because it's another election situation and 12 you were counsel to them. 13 So when you returned as counsel, did you 14 suggest that the Board of Elections investigate and 15 resolve that? Because i have concerns with not only 16 you as a prosecutor, the situation with the out of 17 county, but what kind of advice as prosecutor are you 18 giving these people? And they need good advice. 19 MR. PADDEN: we're going to limit you. 20 This is an issue of whether or not he's a qualified 21 elector as it exists in the Revised code. These are 22 things that you're asking about his prior term of 23 office that may be valid, but not as to this issue, so 24 if you have something as to this issue that the Board 25 has before it, fine, but if not, this isn't the time TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 76 1 to ask those things. 2 MR. WELCH: I don't mind answering Page 68 WELCH.txt 3 unless she's going -- I really don't. 4 MR. PADDEN: okay. Does anybody 5 else -- 6 MS. SHAFFER: I have one last -- 7 MR. PADDEN: All right. 8 MS. SHAFFER: Do you see that there is 9 a huge conflict of interest for you to be counsel? 10 And I know they have you here as counsel today, but 11 the idea that you could even be counsel for them as 12 you finish up your term -- 13 MR. YOSOWITZ: objection, relevancy. 14 MS. SHAFFER: And on the idea of what 15 if there's another candidate that lives out of county 16 or something, what if they come to you with such a 17 situation? These good people need good direction, and 18 so how do you advise them? Let's say with this map 19 maybe they are just barely over the line. what if 20 they are in waterford and the candidate is having a 21 house remodeled, but we want to run for office here in 22 Morgan county and Ms. wallace says, you know, we've 23 got this situation again, what are we going to do, how 24 do you advise them? 25 MR. WELCH: First of all, one of the TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 77 1 reasons I withdrew my candidacy was because, honestly, 2 this has created a real serious problem for this Board 3 of Elections. I agree with you the integrity of the 4 election process is important for people to have 5 confidence in the results of their election, so I Page 69 WELCH.txt 6 withdrew, not because of the issue -- I agree with 7 Mike on the issue -- i withdrew because it just was 8 going to create more trouble for the Board and for the 9 county they didn't need. 10 As to your issue, it's clear. There would 11 be a legal determination by the Board about whether 12 somebody is a qualified elector just like we're doing 13 right now. 14 MS. SHAFFER: So if the situation was 15 before us today, how would you advise them? Is that 16 person a candidate? 17 MR. WELCH: if someone filed a protest, 18 you know, we don't know the status of -- I know when 19 people come in and sign, you know, sign the 20 registration, you know, we don't know the status of 21 everyone in the county, so sometimes it goes unnoticed 22 unless someone raises the issue. if the issue is 23 raised, then we would have a hearing just like the 24 Board come in, and we would call the matter to hearing 25 and decide the status of that elector. And that's TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 78 1 what I would advise them. 2 But if they -- if I came back to fill my 3 term and the Board feels like they have a conflict 4 with me, you know, because of this issue or I feel 5 like, you know, I couldn't honestly and objectively 6 advise the Board, I would recommend they get a special 7 advisor to get them through the process. That's how 8 we -- that's how we work those issues. Page 70 WELCH.txt 9 MS. SHAFFER: So my recommendation from 10 what I understand is you've put them in the position 11 that they may have committed fourth degree felonies? 12 MR. WELCH: No. 13 MS. SHAFFER: Yes. when you fill out 14 your -- 15 MR. YOSOWITZ: objection. 16 MS. SHAFFER: -- petitions and they 17 process them, they also are supposed to do them in 18 good faith that what they have done is correct. You 19 have put these women at risk. 20 MR. YOSOWITZ: Objection. 21 MS. SHAFFER: My suggestion here would 22 be that we follow the law, and there's a section of 23 the law that went into the ohio Revised code in House 24 Bill 3 that enables the ohio Attorney General to 25 investigate when prosecutors do not investigate TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 79 1 election crimes in their county. And we have a 2 situation here that, rather than it being investigated 3 and dealt with, that the problem comes from the 4 prosecutor. There's a conflict of interest. You 5 really can't investigate it. 6 I don't know how far you're going to go with 7 Guernsey County, and I would be thrilled beyond belief 8 if we got a really good investigation out of Guernsey 9 county, and that would look wonderful, and it would be 10 reported across the nation. I don't know where this 11 will go. i'm curious to see, but within it, what Page 71 WELCH.tXt 12 you've put these ladies at risk for is not fair with 13 them. I recommend that the Attorney General does 14 investigate. I hope that the secretary of state does 15 follow up and look at it. 16 One, the Secretary of state would need to 17 counsel them on making certain it doesn't happen 18 again, you know, the idea of schooling, okay. Also, I 19 don't know what happens -- we have precautions -- 20 MR. YOSOWITZ: I'm going to object and 21 move to strike all of this. 22 MR. PADDEN: You need to ask a 23 question. You said you have one more. Have you asked 24 your last question then? 25 MS. SHAFFER: Are you aware of the TAHYI VIDEO & COURT REPORTING, LTD. ( 800)526-6508 (740)454-7157 0 80 1 section of the Ohio Revised Code in House Bill 3 that 2 brought up the AG can investigate when prosecutors 3 don't? 4 MR. WELCH: I see that as nothing new. 5 1 see the AG has broad authority, you know, to 6 investigate. Normally they try to work with county 7 prosecutors, but if the county prosecutor is the 8 problem, they will simply conduct their investigation 9 and inquiry without -- you know, in a proper way, so I 10 don't see that as something new. 11 MS. SHAFFER: So you are -- 12 MR. WELCH: There may be a new statute 13 to try to beef up the integrity of the -- 14 MS. SHAFFER: The date of it is 2006. Page 72 WELCH.txt 15 It's 109.95 in case you would like to look into it. 16 MR. WELCH: But the practice is not new 17 for the Attorney General to step in and -- 18 MS. SHAFFER: Well, actually, I had 19 spoken with Jim Petro previously on election, and he 20 said he was not allowed to look into the accounts and 21 election problems, that it was up to the prosecutor, 22 that he had no jurisdiction. 23 MR. WELCH: That's a matter of policy, 24 not a matter of jurisdiction. 25 MR. PADDEN: Does anybody else have any TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 81 1 other questions for Mr. Welch? 2 DELLA BRADLEY: Would you rather be 3 here in your house in McConnelsville than -- 4 MR. PADDEN: would you stand and tell 5 the court reporter your name and then you can -- 6 DELLA BRADLEY: Della Bradley. Would 7 you rather be here in your house than being in Iraq? 8 MR. WELCH: well, the typical answer is 9 yes, I would rather be here, but I-- you know, I do 10 feel deeply -- 11 DELLA BRADLEY: COmmitted? 12 MR. WELCH: Yeah, about being in Iraq. 13 DELLA BRADLEY: Do you recall the first 14 time you ran for prosecutor that you told them all -- 15 and the party begged you to run, and you told them all 16 that your military responsibilities was to come first, 17 your country come first? Page 73 WELCH.tXt 18 MR. WELCH: Yes. 19 DELLA BRADLEY: And they still begged 20 you to run. Now, does anybody else in this room 21 remember this? 22 MR. WELCH: Right, but -- they asked me 23 to run or to consider running, some did, and I said -- 24 the reason I had not run before is because -- this is 25 before 2000 -- was because I was in operational TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 82 1 command, so I knew the chances of me being deployed 2 were great, and I just knew I couldn't do both. 3 In 1998 I went to the Pentagon and had a -- 4 you know, pretty much an office job and didn't require 5 deployment, and so when I was asked in 2000 if I would 6 consider, I thought, well, maybe now is the right 7 time. of course, no one anticipated september 11th, 8 which changed everyone. 9 so, yes, I mean, that's one reason I didn't 10 select it before -- or didn't accept it before, but 11 afterwards I thought things were okay, but obviously 12 it's worse now than it was before. 13 DELLA BRADLEY: I think this is an 14 unusual situation that we all should look at quite 15 carefully, and I do have faith and confidence in the 16 Board that they will realize what's taken place here. 17 okay. 18 MR. PADDEN: Any other questions? 19 Anything else, sir? 20 MR. YOSOWITZ: I'd like to make a Page 74 WELCH.txt 21 closing statement, but it's Mr. Tigner's challenge, so 22 he can go first. 23 MR. PADDEN: Do you want to make any 24 kind of closing statement, Mr. Tigner? 25 MR. TIGNER: Yeah. Revised Code TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 83 1 3503.01 makes no reference to a person's former status 2 as a resident. It only refers to his present status, 3 present status. Not because his house is being 4 rebuilt and work done. It's his responsibility to be 5 here. on the voting precinct 30 days preceding the 6 election, 30 days before, not six years, eight years 7 getting a house done. 8 I mean, it's smoke. I was unaware that I 9 didn't have six years of my schooling to be qualified 10 for sheriff, and the prosecutor's office advised him 11 he was allowed to run and the man wasn't. We're 12 getting a bunch of smoke. 13 we're getting a bunch of malarky of why -- I 14 support our troops and I feel bad for the ones on the 15 front line and stuff, but this doesn't have anything 16 to do with his military. It's where he resides, where 17 his wife resides. It's in Belpre. It has been for 18 years. 19 And, remember -- please remember this. It 20 does state present intent preceding -- 30 days 21 preceding the election of which he offers to vote. 22 oRC 3503.02 lists two elements which determines the 23 residency. its habitation, where he lives now, not on Page 75 WELCH.txt 24 Liberty Street. He lives in Belpre now. The intent 25 during the 30 days, 30 days prior referring to the ORC TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 84 1 3503.01, and not his past intent, some three years in 2 the past when he was living in the statutory 3 household. 4 He cannot have a residence -- cannot have a 5 residence -- I hope you listen to that, people. He 6 cannot have a residence in a place where he has not 7 lived for three years and to which he presently has no 8 intent on returning. He's not planning on returning 9 now. it's going to be a while before he does this. 10 This is case law. It's the present intent, and all we 11 heard up here was this thing about the house and 12 pictures of it. 13 My God. You go remodel a house. I rebuilt 14 a lot of them. it looks pretty bad before it gets 15 better. it takes time to remodel a house, but, 16 please, when you're voting, remember what the law 17 says, not because he is overseas or the good ole boy. 18 We've got the good ole boys here, and look what they 19 have done. 20 MR. PADDEN: Thank you. Mr. Yosowitz, 21 do you wish to make any kind of closing remark? 22 MR. YOSOWITZ: Sure, yes. Thank you. 23 First, let me say the only statute at issue here is 24 3503.02, not 3503.01. The Ohio legislature has given 25 us the rules for residency determination. It's TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 Page 76 WELCH.txt 0 85 1 enclosed in that statute and no other. 2 one of the things that you'll notice about 3 Revised code 3503.02 is that it mentions the word 4 intention six times. And the reason for that is that 5 you can leave a house temporarily, and you are still a 6 qualified elector of the county that you came from if 7 you have the intention of returning back. And what 8 we've tried to show you today, and I think what we 9 have shown you is that Mr. welch's past, present, 10 future intent has always been to come back to his 11 Mcconnelsville home. You don't spend $100,000 on 12 renovations if you're not coming back to that house. 13 And you don't spend $100,000 in renovations so that 14 you can vote in the county where you don't live. That 15 just doesn't make any sense. it's absurd to think so, 16 and you wouldn't put your other house on the market 17 which would leave you with no place to live. 18 3503.02(A): Residency shall be determined 19 by the following rules: That place shall be 20 considered by the residence in which the person's 21 habitation is fixed, and to which the person is 22 absent, the person has intent of returning. As I 23 said, he has always had the intention ofireturning to 24 that address. The military has the address in 25 McConnelsville. His driver's license has that TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 86 1 address. His taxes go to that address. If he did not Page 77 WELCH.txt 2 have the intention of returning, all of that would 3 have been transferred to the house in Belpre. 4 There are sections A through I. They all talk 5 about intention. some even talk about service in the 6 military, and that's section G, and it says if you 7 have to go into the military on active duty, you don't 8 lose your residence. obviously you're not living in 9 the county, but by virtue of him going -- of Colonel 10 welch going into the military and serving his country, 11 he doesn't lose his Morgan County elector status. He 12 just doesn't. I mean, that's what the law says. 13 You want to talk about case law? what does 14 the case law say interpreting 3503.027 I would submit 15 that Kyser isn't applicable. it interprets the wrong 16 statute. But in any case, i've taken a look at some 17 case law, and I have the cites if you want to look at 18 them. state, ex rel. spangler versus Board of 19 Elections of cuyahoga County. This is Ohio 7, ohio 20 st.3d 20. And the issue in that case was -- and this 21 is a case in which the candidate actually was found 22 not to be a qualified elector, and I'm going to cite 23 it to you because of what the court said. In this 24 case the candidate, his family lived outside of -- he 25 was running for city attorney or law director of Brook TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 87 1 Park, Ohio. That's a city up near Cleveland. His 2 family lived outside of the city of Brook Park in a 3 place called Fairview Heights, Ohio. He leased a 4 place in Brook Park staying there two to four nights a Page 78 WELCH.txt 5 week for work, but spent the rest of that time outside 6 of that house. 7 And what the court said, the candidate had 8 no present intention of moving to the city in which he 9 sought office, and this time it's the opposite 10 situation than what we have here. Colonel Welch didn't 11 buy a house and start living in Morgan County so that 12 he could all of a sudden move from washington County 13 and vote here. He has lived here and temporarily 14 moved out for construction. obviously it is 15 fraudulent if you live outside and temporarily as a 16 sham lease or purchase a residence just so you can be 17 an elector of that city or county. That's not the 18 case that we have here. Mr. welch -- I always say 19 colonel or Mr. Mr. Welch has always lived here. He 20 has always intended to live here. And, in fact, if 21 we're judging this on the present, which is what we 22 have to judge it on, we can't judge it on his status 23 three years ago. That's not the issue. it's his 24 status today. He has moved back in or begun the 25 process of moving back in to his McConnelsville house. TAHYI VIDEO & COURT REPORTING, LTD. ( 800)526-6508 (740)454-7157 0 88 1 He slept there last night. And so he is here in 2 Morgan county. 3 Another case, supreme court, State, ex rel. 4 Nichols versus vinton county soard of Elections, 20 5 Ohio 5t.3d 1, and another case in which they talk 6 about intentions. There was no evidence in that case 7 to support the conclusion that the candidate, the Page 79 WELCH.txt 8 elector had no intention of returning to, in this case 9 Harrison Township. He had rented out -- to give you 10 some background, he was trying to be a qualified 11 elector of Harrison Township. He had rented out his 12 Harrison Township home to tenants. He listed his 13 Harrison Township home for sale with a realtor and he 14 moved to a different address. 15 That's not what we have here. Mr. Welch has 16 never rented or put the McConnelsville house -- put 17 the McConnelsville house up for sale. indeed, his 18 house in Belpre is up for sale and has been since 19 2007. He has not moved to a different address. A 20 couple other cases to draw your attention to, one more 21 recently, state, ex rel. Stine versus Brown County 22 Board of Elections, 101 ohio st.3d 252, paragraph 15. 23 in election cases involving candidate residence 24 issues, the court applies Revised code 3503.02 is of 25 great import. You should also see state, et rel. TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 89 1 Duncan versus Portage County, Ohio st.3d 405, 2 paragraph 11: The statute emphasizes the person's 3 intent to make a place a fixed or permanent place of 4 abode. 5 Now, should you find that his intent was not 6 to return to McConnelsville, by all means, then he is 7 not a qualified elector of Morgan county. with the 8 exhibits that you have and the evidence that we have 9 presented, I think we have shown beyond any doubt that 10 Mr. Welch has always intended to come back to Morgan Page 80 WELCH.txt 11 county and that is the dispositive issue. 12 Certainly you should not apply case law that 13 talks about a different statute. There is one statute 14 that agrees here -- or that is important here, and 15 that's 3503.02. I will grant you he has had to leave 16 his Mcconnelsville house for a long time. There's no 17 definition of temporary in the Revised code, at least 18 not in terms of this section, but that's why I think 19 intent is so important. He could not live in the 20 McConnelsville house. The house was gutted. It had 21 no utilities, and even if it did have utilities, he 22 still couldn't have lived in it. There were pigeons 23 living in the house, the foundation was open, water 24 was coming into the basement, and this was something 25 that was supposed to take a few months. TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 90 1 if the first contractor did his job and 2 completes the renovation, we are not here having this 3 hearing, but he didn't and it was a catastrophe. And 4 colonel Welch, despite his best efforts, is 6,000 5 miles away trying to deal with this stuff, and it's 6 just not progressing very fast and he cannot move back 7 into the house. something that was supposed to take 8 three months took years. Is it something that he 9 could have foreseen? Maybe. Probably not to this 10 extent. And if you look at the pictures, you'll see 11 just how bad it was. 12 The statutes are designed to protect against 13 fraud. This isn't a situation where Mr. welch is Page 81 WELCH.tXt 14 trying to pull the wool over the eyes of the voters of 15 Morgan County. He didn't try and fake his way into 16 voting here. He would not spend $100,000 to do that. 17 it's just not worth it. And anyone who says otherwise 18 is just -- it's absurd. iust wouldn't do it. If you 19 want some of the cases that I have cited, I have them. 20 MR. PADDEN: I'll provide them to them. 21 MR. Y0S0WITZ: okay. All of the 22 information you need to make your decision is based in 23 that statute and the cases interpreting that statute. 24 I urge you to give attention to his intent and what 25 his intent was because that's what the statute tells TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 91 1 you to do, and I find that Mr. welch is a qualified 2 elector of Morgan County. Thank you. 3 Mr. Padden, one last thing for the record, 4 if the Board of Elections and Mr. Tigner wants to view 5 the McConnelsville house as it presently is, we have 6 no objection to that. it's about a two-minute walk 7 away. That's up to the Board. 8 MR. PADDEN: All right. 9 MR. WILSON: well, we've heard a lot of 10 information. we've got lots of pictures, lots of 11 papers, a lot of information to read, and I'm 12 recommending we take this information, these pictures 13 and information on writing, and we'll view them and 14 then we'll issue a statement in writing. And I don't 15 know how long that will take. 16 MS. WALLACE: I would like to have a Page 82 WELCH.txt 17 copy of the court record of what she's doing, the 18 court reporter. I think we should have time to study 19 that. 20 MR. PADDEN: so your request is to take 21 this matter under advisement and then issue a written 22 decision? Is that -- 23 MR. WILSON: Is that agreeable with the 24 Board? well, we are in session. 25 MS. PINNOCK: I make a motion we go out TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 92 1 of session. 2 MS. WILSON: second the motion. 3 MR. WILSON: All who vote say aye. 4 (BOARD RESPONDS.) 5 (THE PROCEEDINGS CONCLUDED AT 4:45 P.M.) 6 - - - 7 8 9 10 11 12 13 14 15 16 17 18 19 Page 83 WELCH.txt 20 21 22 23 24 25 TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 0 93 CERTIFICATE STATE OF OHIO ) ) ss: COUNTY OF MUSKINGUM ) I, Jennifer D. Jarrett, a Registered Professional Reporter and Notary Public in and for the state of ohio, duly commissioned and qualified, do hereby certify that the witnesses were by me first duly sworn to testify to the truth, the whole truth, and nothing but the truth in the cause aforesaid; that the testimony then given by them was by me reduced to stenotype in the presence of said witness; that the foregoing is a true and correct transcript of the testimony so given by them as aforesaid, transcribed from my stenographic notes; and that this deposition was taken at the time and place in the foregoing caption specified, and was completed without adjournment. I do further certify that I am not a relative, employee, or attorney of any of the parties hereto, and further that I am not a relative or employee of any attorney or counsel employed by the parties hereto, or financially interested in this action. I am not, nor is the court reporting firm with which I am affiliated, under contract as defined in Civil Rule 28(D). IN WITNESS WHEREOF, I have set my hand and affixed my seal of office at zanesville, ohio, on this 5th day of september, 2008. Page 84 WELCH.txt 7ennifer D. 7arrett, RPR 23 Notary Public in and for the state of ohio 24 My commission expires on August 31, 2010. 25 TAHYI VIDEO & COURT REPORTING, LTD. (800)526-6508 (740)454-7157 Page 85 IN THE SUPREME COURT OF OHIO State of Ohio ex rel. Jon A. Husted, 148 Sherbrooke Drive Case No.0 9 - 14 55 Kettering, Ohio 45429 Relator, . Original Action in Mandamus V. Jennifer L. Brunner, Ohio Secretary of State 180 East Broad Street Columbus, Ohio 43215 Respondent. COMPLAINT FOR WRIT OF MANDAMUS Maria J. Armstrong (0038973) Counsel ofRecord Anne Marie Sferra (0030855) Jennifer A. Flint (0059587) BRICKER & ECKLER LLP 100 South Third Street Columbus, Ohio 43215 Telephone: (614) 227-2300 Facsimile: (614) 227-2390 E-mail: [email protected] E-mail: asferranbricker.com E-mail: iflint@,bricker.com Counselfor Relator :11, o d .! t o CI,€fiH OF t';)!t(21 SUPREME cobiRT 0H10 AFFIDAVIT Jon A. Husted, being duly cautioned and swom., states that he has personal knowledge of and is competent to testify to the factual allegations set forth in this Complaint for Writ of Mandamus. These factual allegations are true to the best of my knowledge and belief. Sworn to before me and subscribed in my presence this l^^ day of August, 2009. ^ " a/-OL" Teni L Kovalft rataryPuk sW etohw Notary Public My CommYsim 6cpkat 120620t8 7 My commission expires on: /Y'^07-ZU(3 3131020v7