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Thursday, July 3, 2014

Analysis: Ballot Law Commission had to navigate legal inconsistencies in rendering Havenstein decision

Staff Writer

CONCORD - The narrow majority on the Ballot Law Commission kept Republican candidate for governor Walt Havenstein on the ballot because his actions demonstrated an intent to remain a New Hampshire resident even while living in a Maryland condo for more than four years.

The written opinion of the BLC will be released once Chairman Brad Cook, a Manchester Republican, receives in writing a dissenting opinion from member Donald Manning, a Manchester Democrat. That could happen Thursday afternoon. ...

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CONCORD - The narrow majority on the Ballot Law Commission kept Republican candidate for governor Walt Havenstein on the ballot because his actions demonstrated an intent to remain a New Hampshire resident even while living in a Maryland condo for more than four years.

The written opinion of the BLC will be released once Chairman Brad Cook, a Manchester Republican, receives in writing a dissenting opinion from member Donald Manning, a Manchester Democrat. That could happen Thursday afternoon.

“I think we refer to it as a close case; there certainly were a lot of factors involved here,” said Cook who has been on the commission since 2005.

“The majority felt Mr. Havenstein clearly met the test as an inhabitant of the state who created a domicile in New Hampshire and maintained that residency over the past seven years.”

The state Constitution and state law require candidates for governor to reside in the state for the immediate seven years prior to seeking that office.

There’s little doubt the commission’s ruling will make reference to the numerous definitions in state law of resident, inhabitant and one’s domicile.

The vague, seemingly contradictory language in those statutes has led over the years to BLC decisions that have not been consistent.

“Every election cycle, you can have new members so each commission takes its own independent look at it,” Cook explained.

One of the most jarring rulings dates back to 1986 when supporters of then-Gov. John H. Sununu tried to knock his GOP primary opponent Roger Eaton off the ballot.

Eaton had bought a retirement home in Canaan in April 1979, within the seven-year residency requirement, but he didn’t live in the home full-time until July 1980.

In the meantime, Eaton kept his prior residence of Oxen Hill, M.D., had a Maryland driver’s and voted in Maryland’s May 1980 presidential primary.

Then in 2000, the BLC kept Hudson Democratic lawyer Len Foy as a state Senate candidate even though for 10 years ending in 1996 he had lived in California, owned property, became a member of that state’s bar and voted in referendum elections in that state.

“I called that ‘I left my heart in New Hampshire case,’’’ said Steve Duprey, who later served on the BLC for five years but at that time was state GOP chairman.

In response, the Republican-controlled Legislature adopted a law that voting in another state became a “presumption” you have surrendered your New Hampshire domicile.

Havenstein passed the hurdle by only voting in New Hampshire in state, local and national elections over the past seven years.

But that alone would not have been enough to keep him on the ballot.

The majority no doubt was convinced by other facts speaking to Havenstein’s intent to always return, such as the fact his wife lived full-time throughout this period at their home in Alton.

Havenstein also remained active in local philanthropic work and kept all his important possessions in Alton prompting his lawyer, David Vicinanzo to refer to the $1 million, Bethesda condo as a “spartan apartment.

Another key indicator the majority may allude to is that more than a decade ago, the family moved from Bedford to Alton.

At that time, Havenstein was running the Nashua headquarters of BAE Systems and for 18 months he rented a condominium in Nashua so he could be closer to work.

That’s the very reason why Havenstein said he bought the condo in Bethesda because it was a 10-mile drive to commute to BAE’s national headquarters where he worked.

The Telegraph first reported in March that from 2008-11 Havenstein claimed the condo in Maryland as his principal residence in order to receive two state tax breaks worth at least $5,400.

It’s clear the majority concluded Havenstein had every legal right to the tax breaks based on the number of days he spent living there and they didn’t reveal an intent to ever surrender his New Hampshire domicile.

Meanwhile, the two, dissenting BLC members have plenty of ammunition on their side beyond the out-of-state tax breaks.

Havenstein only kept a Maryland driver’s license for a few years during that time, he paid Maryland resident income taxes and kept the condo even after he “retired” from BAE.

Following a few months full-time back in Alton, Havenstein return in 2009 to the same condo to live another two years there as CEO of another government contracting firm, SAIC.

Ex-BLC member Duprey said he’s not surprised only Cook has commented publicly on the case.

“It was an informal practice that the chairman alone spoke for the commission,” Duprey said.

“I always considered the position a quasi-judicial role because there hasn’t been a successful appeal of a BLC decision. I let the decisions speak for themselves.”

Permitting, public commentary by BLC members also could violate the privacy of deliberations, he said.

“You are encouraged behind closed doors to frankly speak your mind about these cases. If all of that spills out, it could really have a chilling effect going forward,” Duprey added.

Ironically, however, this court of last resort on all challenges to someone’s state candidacy has no operating rules so each commission has to figure out for itself how to function.

Kevin Landrigan can reached at 321-7040 or klandrigan@nashuatelegraph.com. Also, follow Landrigan on Twitter (@Klandrigan).