The three-member Sampson County Board of Elections did so unanimously after deciding that challenger and current Dist. 5 commissioner Malachi Faison did not present sufficient evidence to convince the panel that Albert Kirby did not live within the district in which he ran.
Faison said he intends to appeal the Monday night ruling.
The commissioner’s contention since filing a request to investigate Kirby’s residency in late July has been that his opponent was registered to vote and claimed residency at 820 Southwest Blvd. although he actually lived at 476 Indiantown Road, which is in commissioner District 3.
Kirby has denied the allegation from the start.
Monday night, his attorney, Marshall Hurley, reiterated that fact and, after Faison was allowed to give sworn testimony, called for a dismissal of the complaint against his client.
“This borders on ridiculous,” Hurley said in making his motion to dismiss. “There is no evidence to substantiate the allegation he (Faison) has made against my client that he does not live at 820 Southwest Blvd. This is what can be termed frivolous. It has no legal merit, and there is no evidence that has been given that supports the claim.
“However disgruntled Mr. Faison may be, I assert there is not a factual basis, not a legal basis, to move forward,” Hurley stressed to the board.
In Faison’s testimony he echoed remarks he has made since July that Kirby did not live at the Southwest Boulevard address, and he told the Board of Elections he believed his opponent lived on Indiantown Road.
The discovery that Indiantown Road was actually not in District 5, Faison said, was made after he lost the primary election and was researching what he termed as demographics of the District 5 race.
During his research, Faison said, he discovered that Kirby had listed his address at 820 Southwest Blvd.
“I knew that wasn’t his address,” Faison attested, further stating that he knew Kirby’s address to be 476 Indiantown Road. He even pointed to a campaign finance report filed on April 23, 2010 that listed Kirby’s address as the one on Indiantown Road.
“I’m asking the Board of Elections to disqualify Mr. Kirby from holding office in District 5,” he stated emphatically before sitting down.
During his testimony, Faison talked about the Southwest Boulevard residence, stating that five adults voted from that same address and that the tax office records showed it was a two bedroom, one-bath residence. He further stated that there were three separate “land line” telephones at that address, one of which belonged to Kirby.
But Faison’s evidence was based solely on his belief that Kirby lived at the Indiantown Road address, without any documentation to back it up.
Pressing for answers during his cross-examination, Hurley asked Faison what knowledge he had that Kirby did not live at the Southwest Boulevard and what knowledge and evidence he had to back up his claim that his client lived on Indiantown Road.
Shaking his head and claiming he didn’t have to answer questions, Faison at first refused to respond. But Hurley pressed more.
“Can you show us a piece of paper that indicates Mr. Kirby doesn’t live at 820 Southwest Blvd.?
“Can you give us a basis of knowledge that he lives on Indiantown Road?”
Faison then told Hurley he understood that Kirby had built a house on Indiantown Road.
“What knowledge do you have of his residence?” Hurley queried.
“I know he doesn’t live at Southwest Boulevard,” Faison stated, getting agitated. “I’m not here to be interrogated. I’ll talk to my attorney ... he just couldn’t be here tonight.”
Again Hurley pressed Faison for evidence.
“You sent a letter to this board saying he lives on Indiantown Road. What knowledge of his residence do you have?” Hurley asked again.
Hurley said Kirby is owner of the Indiantown Road property, but that ownership of property has no relevance to where he lives and claims his domicile. “He owns that property, but he happens not to live at that property.”
He further stated that finance reports with the Indiantown Road address listed were filed by Kirby’s paralegal and was simply “a mistake.”
Then the attorney asked Faison if he found any public record anywhere that proved Kirby lived on Indiantown Road.
Faison said no.
Repeatedly Hurley asked Faison for evidence to prove his claim. Faison did not produce any, other than to state his belief that Kirby lived on Indiantown Road.
“Do you know where Mr. Kirby lives?” Hurley finally asked Faison.
“Not exactly,” Faison stated.
At that point, Hurley called for the dismissal based on the lack of evidence. Two elections board members — chairman Jackie Hobbs and member James Hall — didn’t agree with the motion at first, saying they believed it was their duty to investigate the claim.
“I think it would be in the best interest of this board to determine where Mr. Kirby stays,” Hobbs said. “That would satisfy everyone’s mind.”
But Hurley interrupted, saying the legal proceeding was not about “satisfying the curiosity as to where he lives.”
Elections board member Ted Lockerman, a retired attorney, agreed with Hurley, telling his fellow board members that the proceedings — and the board’s responsibility — was to determine the legitimacy of the claim based soley on the evidence.
“In my personal opinion, Mr. Faison has failed to show any evidence that leads me to believe Mr. Kirby doesn’t live where he says he lives,” Lockerman said.
Hobbs, however, wasn’t completely satisfied, and asked Kirby, who was also under oath, if he, in fact, lived at the 820 Southwest Blvd. residence.
“Do you sleep there at night?” Hobbs asked.
Kirby said he did.
After Hobbs’ brief inquiry of Kirby, Lockerman made the motion to dismiss the complaint based on the evidence presented.
“There was nothing in this hearing that outweighs where Mr. Kirby says he lives. Domicile is very difficult to prove, and the heaviest weight is given to where the person says he lives,” Lockerman said.
Hall and Hobbs concurred with Lockerman, raising their hands with him in voting to dismiss.
A written record of the dismissal must be filed, at which time, Lockerman said, Faison had 10 days in which to appeal.
“I will appeal,” Faison said, standing.