                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 95-CA-01026-SCT
HINDS COUNTY ELECTION COMMISSION, CONNIE COCHRAN, CHAIRMAN, J.W.
"JIM" TAYLOR, LELIA RHODES, MARGARET MCLARTY AND RUTH SHIRLEY
v.
HENRY L. BRINSTON

DATE OF JUDGMENT:                                    10/6/95
TRIAL JUDGE:                                         HON. ROBERT LEWIS GIBBS
COURT FROM WHICH APPEALED:                           HINDS COUNTY CIRCUIT COURT

                                                     FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS:                            VICKI R. SLATER

                                                     MICHAEL S. ALLRED

                                                     JOHN I. DONALDSON
ATTORNEYS FOR APPELLEE:                              SORIE S. TARAWALLY

                                                     LOUISE HARRELL
NATURE OF THE CASE:                                  CIVIL - ELECTION CONTEST
DISPOSITION:                                         REVERSED AND RENDERED - 3/28/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                      4/18/96




      EN BANC.


      McRAE, JUSTICE, FOR THE COURT:


¶1. This case involves an appeal from the decision of the Circuit Court of the First Judicial District of Hinds
County which declared Henry L. Brinston qualified as a candidate for the office of Circuit Clerk of Hinds
County, Mississippi. Because of Brinston's failure to rescind his Madison County homestead exemption or
to produce evidence establishing residency elsewhere, we reverse the lower court and conclude he is not
qualified to be a candidate in the race for Circuit Clerk of Hinds County.

¶2. Henry L. Brinston submitted an application for candidacy as an independent candidate for the office of
Circuit Clerk of Hinds County, Mississippi to the Hinds County Election Commission ("Commission") on
March 1, 1995. The Commission wrote Brinston on March 31, 1995 informing him that without further
proof of his residency in Hinds County, he would not be qualified to run for office in Hinds County. The
Commission based its decision on Brinston's homestead exemption documentation which established him as
a Madison County resident. The Commission wrote Brinston on September 7, 1995 and informed him
again to present proof of residency in Hinds County. By letter dated September 7, 1995, Brinston informed
the Commission that his homestead exemption was claimed in Madison in January of 1994, but that he had
changed his residency to his mother's house in Hinds County to 2421 Newport Street in Jackson due to
marital problems. He also provided additional evidence of his attempt to establish residency in Hinds
County.

¶3. On September 13, 1995, the Commission denied Brinston's application for candidacy based on
Brinston's failure to rescind his homestead exemption filed in Madison County. Brinston filed a petition for
judicial review with the Circuit Court of the First Judicial District of Hinds County pursuant to Miss. Code
Ann. § 23-15-963 (1972). After an expedited hearing on September 29, 1995, the trial court reversed the
Commission's decision and entered an order finding Brinston qualified as a candidate for Circuit Clerk of
Hinds County. The trial court subsequently denied the Commission's motion for reconsideration. The
Commission appealed by Bill of Exceptions to this Court pursuant to Miss. Code Ann. § 23-15-963(6)
(1972).

¶4. Since this case does not concern the qualifications of legislative candidates, we find the case of Gadd v.
Thompson, 517 So. 2d 576 (Miss. 1987), overruled in part by Foster v. Harden, 537 So. 2d 905
(Miss. 1988)(1) controlling in this matter. In Mississippi, residence and domicile are synonymous for
election purposes. Gadd, 517 So. 2d at 578. The county of domicile requires that an actual residence be
voluntarily established with a bona fide intention of remaining in that county for an indefinite period of time.
Id. at 578; Smith v. Smith, 194 Miss. 431, 434, 12 So. 2d 428, 429 (1953).

¶5. In Gadd, this Court determined the residence of a legislative candidate for purposes of Article IV, § 41
of the Mississippi Constitution. We held that "the filing of a homestead exemption conclusively establishes
domicile for electoral purposes in the county of filing, regardless of circumstances indicating that certain ties
to other counties still exist." Gadd, 517 So. 2d at 579. Because an individual must be permitted to prove
that his residency is somewhere other than it might appear, this Court clarifies this holding to mean there is a
strong but rebuttable presumption of residency in the county where the homestead exemption is filed. The
location of the homestead exemption creates this strong presumption because of the benefit in the form of
tax relief one receives by filing.

¶6. A closer look at the Gadd case demonstrates that Gadd never negated the presumption that his
residence was in the county where he filed his homestead exemption. Id. at 577-78. The facts revealed that
Gadd remained on the voting rolls in the county he sought candidacy, but that he owned no real property in
that county. Id. at 577-78. Although Gadd maintained a post office box in the county in which he desired to
be elected, he had filed his homestead exemption and paid taxes in a county other than the one in which he
was seeking election. Id. at 577-78. Because Gadd's homestead exemption was filed in another county and
he introduced no other compelling evidence proving residency elsewhere, this Court declared Gadd
unqualified to be a candidate and de-certified him as a nominee for the state legislature. Id. at 579.

¶7. The facts of the case at hand are analogous to the situation presented in Gadd. Brinston's homestead
exemption was filed in Madison County although he remained on the voting rolls in Hinds County.
Consequently, there is a strong presumption that his residence was in Madison County. Brinston was
notified by the Commission of problems with his qualifications based on his homestead exemption in
Madison County, yet he failed to take any kind of corrective action to prove his homestead was in a
location different than it appeared to be. Brinston has shown nothing other than a mailing address at his
mother's house in an attempt to establish residency in Hinds County. He has received the benefit of his
homestead exemption for the entire year in Madison County. Therefore, the lower court's judgment in this
case is reversed as Henry L. Brinston is not qualified to run for the office of Circuit Clerk of Hinds County,
Mississippi.

¶8. REVERSED AND RENDERED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN AND SMITH, JJ., CONCUR.
BANKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS, J.
MILLS, J., NOT PARTICIPATING.




      BANKS, JUSTICE, DISSENTING:


¶9. Today's decision has no practical effect on the parties. Indeed, Brinston suggested that the appeal was
mooted by the decision of the Election Commission to comply with the order of the circuit court and place
his name on the ballot rather than take advantage of the automatic stay of that decision which obtained
when this appeal was taken. Moot or not, however, it is clear from the record that Brinston's campaign was
of little real consequence.(2) What is important is the precedent we establish. Because I believe that the
court errs in applying Gadd(3) to the facts of this case, I dissent.

¶10. To begin, I must confess that if Gadd were before the court today, I would not have voted for the
majority opinion. In my view, the electoral process is not well served by the erection of barriers to a
candidacy that have no relevance to the issue at hand which is the expression of the will of the majority of
the electoral unit with respect to its representatives. I would not have regarded the filing of the homestead
exemption application as dispositive of the issue of residency for electoral purposes as this Court did in
Gadd. To the extent that the majority opinion retreats from that position, I agree with its direction. It does
not go far enough, however.

¶11. Moreover, the majority, by applying its lessened standard to the evidence before it, has assumed the
role of fact finder. The original decision of the Election Commission applied Gadd as written rather than as
interpreted by the Court today. The trial court decision distinguished Gadd on the facts but it has never had
the opportunity to determine whether the presumption decreed today had been overcome.

¶12. If the issue is to be decided here, I believe that the evidence before the court is sufficient to rebut the
presumptive effect of the filing of an application for homestead exemption which the majority bestows upon
that occurrence. First, the evidence suggests that Brinston applied for a Madison County homestead
exemption in 1994, not 1995, the year here in question. Later in 1994, he was separated from his wife and
he moved back to Hinds County. He never removed his name from the voting rolls in Hinds County. He
was, at all times relevant, employed in Hinds County. The trial court found, based upon unrefuted evidence,
that Brinston had marital problems and that from and after November 1994 he continuously resided at
2421 Newport St. in the City of Jackson, Hinds County. As distinguished from Gadd, the office sought by
Brinston required residency for a period of only thirty days, not the two-year requirement applicable to
legislative candidates.

¶13. The trial court also noted the difference between the homestead exemption application in Gadd and
that used in the present case. The Gadd application suggested that the home in question was Gadd's sole
residence. Brinston's application made no such assurance, referring instead to his "primary home."

¶14. Finally, in order to give the filing of a homestead exemption application presumptive effect, there must
be a finding that such an application was filed. Our statutory scheme respecting applications for homestead
exemption require no annual application, only if there has been no change in "the property description,
ownership, use or occupancy since January 1 of the preceding year." Miss. Code Ann. § 27-33-31 (1995).
In the event of such a change, a new application is required. The trial court found no new application for
homestead exemption in evidence and that, while taxes had been paid in March 1995, these taxes were for
the year 1994. It is not clear then, whether Brinston ever received in tax benefit for the year 1995. Whether
he did or not, it is perfectly clear that he made no affirmative declarations for the year 1995 out of which a
presumption of residency could arise.

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

ROBERTS, J., JOINS THIS OPINION.


1. In Foster, this Court overruled Gadd to the extent that it was inconsistent with the Mississippi
Constitution of 1890, art. IV, § 38 which vests competence of a legislative candidate's qualifications in each
house of the legislature. Foster, 536 So. 2d at 907.

2. There is little to indicate that there was a real campaign and Brinston's dilatory response to the residency
issue as chronicled by the majority may be taken as evidence of the seriousness of the endeavor.

3. Gadd v. Thompson, 517 So. 2d 576 (Miss. 1987), overruled in part by Foster v. Harden, 537 So.
2d 905 (Miss. 1988).
