Oregon Legal Research Blog
Mandamus Proceeding: Kristof v. Fagan (Feb 2022)
Filed: February 17, 2022
IN THE SUPREME COURT OF THE STATE OF OREGON
State ex rel NICHOLAS KRISTOF,
Plaintiff-Relator,
v.
SHEMIA FAGAN,
Secretary of State of the State of Oregon,
Defendant.
(SC S069165)
Read the OPB 2/17/22 article: “Oregon Supreme Court says no to Nick Kristof’s governor candidacy,” which also links to the court’s decision, or:
Link to the 2/17/22 PDF and read the full 33 page decision from the Oregon Supreme Court’s website. (Advance Sheets 2022 # 5)
Note: “Final publication in the bound volumes of the official Oregon Reports are accessible through the State of Oregon Law Library Digital Collection.”
Briefs can or will also be found at the State of Oregon Law Library’s digital collection.
Excerpts from the 2/17/22 decision:
“.… Relator [Kristof] filed Oregon income taxes, as well as New York income taxes, in 2019 and 2020, although he did not include in his submission whether he had filed in Oregon as a resident or nonresident….” [Page 7 of the 217/22 PDF (not the final, official decision, which will be published in the print Oregon Reports)]
“... The secretary contends that that interpretation of “resident” was common at the time that the Oregon Constitution was ratified; under that interpretation, a person can be a resident within only one state at a time; and it is the only interpretation that yields a sufficiently definite standard….” [Page 10 of the 217/22 PDF (not the final, official decision, which will be published in the print Oregon Reports)]
“…. Although the residency requirement of Article V, section 2, has been part of the Oregon Constitution since 1859, this court has not yet had occasion to interpret it….” [Page 11 of the 217/22 PDF (not the final, official decision, which will be published in the print Oregon Reports)]
“.… Those provisions show that the residency requirement for voting did not turn entirely on physical presence. They make clear that even extended periods of absence from the state do not disqualify a person from being counted as a resident for that purpose, provided that the reason for the absence is one of those listed, all of which either have a temporary character or are likely to be involuntary. And, conversely, they reveal that even extended physical presence within the state is insufficient, in and of itself, to make a person a resident….” [Page 13 of the 217/22 PDF (not the final, official decision, which will be published in the print Oregon Reports)]
“…. But what we find most informative is the legal backdrop against which Article V, section 2, was ratified. During the mid-nineteenth century, laws or constitutions that included residency requirements for voting or officeholding were commonplace, and they were overwhelmingly interpreted to require domicile. As one treatise explained, ….” [Page 16 of the 217/22 PDF (not the final, official decision, which will be published in the print Oregon Reports)]
“…. We owe no special deference to legislative enactments when interpreting the Oregon Constitution, but that law — enacted within two decades of ratification and embodying an interpretation of the constitution provides further evidence of how residency requirements connected to political rights and qualifications were understood at the time….” [Page 20 of the 217/22 PDF (not the final, official decision, which will be published in the print Oregon Reports)]
“…. Whether relator was domiciled in Oregon in November 2019 therefore turns on two distinct questions: whether relator ceased to be domiciled in Oregon at any point and, if so, whether he regained an Oregon domicile by November 2019….” [Page 22 of the 217/22 PDF (not the final, official decision, which will be published in the print Oregon Reports)]
Regarding the mandamus request:
“.… Put differently, “[i]f mandamus shall lie in this cause, it must appear from the record that the relator possesses a clear, legal right to the thing demanded, and it must be the imperative duty of the Secretary of State to perform the act so demanded…. our task is not to conduct our own review of the facts; rather, it is to decide whether the evidence in the record, assessed under the correct legal standard, would have compelled a decision in relator’s favor. Only that would entitle him to a writ of mandamus directing the secretary to determine that he met the durational residency requirement set out in Article V, section 2.7….” [Page 24 of the 217/22 PDF (not the final, official decision, which will be published in the print Oregon Reports)]
Read the full 33-page decision. [Note: That 2/17/22 PDF (Advance Sheets 2022 # 5) is not the final, official Oregon Supreme Court decision, which will be published in the print Oregon Reports and also available online after final edits at the State Law Library of Oregon’s digital collection database.]