CONCORD – The state Ballot Law Commission, in a split decision, decided Monday that Republican businessman Walt Havenstein is eligible to be a candidate for governor although he told the panel that he spent most of his time in Maryland during 2007 to 2012.
The panel majority accepted Havenstein’s argument that he never lost his domicile in New Hampshire while working in Maryland and Virginia and living for more than half of those years in a Maryland condominium. Havenstein said returned “home” on most weekends and at any other time he could, and he always intended to return full-time to his home in Alton, N.H.
The vote was 3-2, with Democratic attorney Martha Van Oot joining two Republicans, BLC chairman Bradford Cook and Michael Eaton, in the majority, while Democratic attorney Donald Manning and Gov. Maggie Hassan’s recent appointee, Roger Wellington, were in the minority.
The decision came after a deliberation of about 20 minutes following a nearly two-hour hearing in which Havenstein was the lone witness and was questioned by his own attorney, David Vicinanzo, and an attorney for the New Hampshire Democratic Party, Gregory Ahlgren.
Havenstein had sought the declaratory ruling after filing for the office earlier this month to try to put aside the issue of whether he met the constitutional and statutory requirements that he has been a resident of New Hampshire and domiciled in the state for at least seven years prior to filing for the office.
The NHDP challenged Havenstein, charging that he, by declaring his Bethesda, Maryand, condominium his “principal residence” on documents that afforded him property tax breaks and on the mortgage for the property, and by obtaining a Maryland vehicle registration and driver’s license while he worked in Mayrland, had not met the state statutory requirement that to be a resident of New Hampshire, one must have, “through all of his actions, demonstrated a current intent to designate that place of abode as his principal place of physical presence for the indefinite future to the exclusion of all others.”
None of the members of the commission spoke during or after the vote upholding Havenstein’s eligibility, but the majority apparently believed Havenstein’s argument that although he worked and lived in Maryland for most of the years 2007 to 2012 while heading two major corporations, he kept his domicile in the Granite State and always intended to return to the Granite state full-time when he retired.
The vote as officially to uphold Secretary of State William Gardner’s decision to accept Havenstein’s filing for governor earlier this month.
Havenstein said after the vote he believed the majority of the commission was convinced by “the fact that I came home. I came home routinely, as often as I could. So the context of domicile was never at issue, certainly not in my mind and as it turned out not in the minds of the majority of the Ballot Law Commissioners.
“Now we’re on to getting back to the voters and delivering our message across the state,” he said. “It was a little bit of a distraction but we’ve been saying all along that I was eligible so this was a bit of vindication more than anything else.”
Chairman Cook said early in the hearing that under the law, “There is no appeal from the Ballot Law Commission. What we say is it, right, wrong or indifferent.”
After the vote, Democratic National Committeeman Peter Burling, an attorney, took issue with that assertion.
“The chairman of the commission clearly misspoke when he said there was no appeal,” he said.
“At the core of this is the state of New Hampshire’s constitutional provision – there is clearly law that there is an appeal to the (state) Supreme Court from that. I’m not saying it will be taken, but there is plenty of reason here to (appeal) it.”
Burling said, “Mr. Havenstein, who is clearly a decent man, did not have to apply for a Maryland license. Maryland law requires proof of residency in order to get a license. That must have taken place.”
He said Havenstein, instead of taking the homeowners credit on his Maryland property tax bill, “had some moral obligation to say, ‘I’m sorry, I’m not a resident here and that’s not my primary residence.’ I don’t credit the notion that a real estate broker just led him through this.”
Attorney Ahlgren had said during the hearing that Havenstein had not given up his residence in New Hampshire through 2009.
But he and, later, Burling, said that when Havenstein in 2009 left BAE Systems in Maryland and continued to live in his Bethesda condominium when he took another post, to head Scientific Applications International Corporation, he gave up his residency.
At that point, said Burling, “he steps into that ‘inter-world’ in which basically the State of New Hampshire says, ‘you no longer have domicile; you’ve lost it because there is no ‘definite-ness’ to your return.’
“Cases for 150 years have talked about that and in my view, it’s likely a higher court is going to have to decide. It’s the issue of the Governor, and whether our Constitution still speaks or whether someone has changed the game,” said Burling.
The state Democratic Party indicated after the vote it will continue to raise the issue as the campaign moves forward. State party chair Raymond Buckley said Havenstein admitted “that he took tax breaks available only for Maryland residents and didn’t live in New Hampshire most of the year.
“The taxpayers of Maryland will obviously want their money back and the people of New Hampshire are going to have a hard time understanding why someone who claims he wants to lead the Granite State was spending the majority of (several years) in another state,” Buckley said.
Havenstein issued a statement Monday afternoon, saying, “The Democrats have been making unfounded claims about this in the press for months which everyone can now see were false. This is politics as usual for them: they know they can’t win on the issues, so they want to make the election about anything else.
“Now that this matter has been put to rest, they are going to have to debate the things that matter to Granite Staters: jobs, the economy and the future of our state.
“This vindicates what we have known all along: New Hampshire has been my home for the past 15 years and I’m eligible to run for and serve as governor,” Havenstein said.
During the hearing, Havenstein said he moved to New Hampshire in 1999, living first in Bedford, and then in Alton.
He said he had no intention of moving to Maryland but when BAE Systems asked him to become CEO of the entire company, and relocate to Maryand, he purchased the Bethesda condominium while “trying to get home whenever I could.”
He said he purchased a vehicle in Maryland and was required to register it in that state, although he had other vehicles registered in New Hampshire.
In purchasing the condominium Havenstein acknowledged signing a form to give him an exemption from a Maryland “recordation tax,” in which he declared the condo his “principle residence” by occupying it at least seven of the following 12 months.
He also acknowledged signing a form giving him a residency tax break. The form said he would occupy the condominium as a “principle residence” for 183 days of the following year.
Havenstein also acknowledged he automatically received a homestead tax exemption on what the State of Maryland considered his “principle residence” in 2008, although he was not required to apply for the exemption until 2012.
He also signed a mortgage document that said the condominium would be his “principle residence.”
But Havenstein said such references were simply required by Maryland law. He noted that while he had the condominium in Maryland, all of his W-2 forms and any documents of a “contractual nature” were sent to Alton. He said the State of Maryland sent his 1099 forms to Alton. He said he always voted in New Hampshire for the past 15 years.
He also said all of his State of Maryland income tax returns forms were sent to his Alton address except in 2007, when his Maryland address was used.
He was asked why not 2007.
“It was just what Turbo Tax cranked out,” Havenstein said.
Ahlgren said he would not have argued against Havenstein’s eligibility had he left Maryland in 2009 and returned to Alton. But he said that when Havenstein took the position at SAIC and continued living in the condominium, and then purchased another condominium in North Carolina, he relinquished his residency under the legal definition in New Hampshire.
Havenstein attorney Vicinanzo said, “Franklin Pierce was a resident of the White House for four years but he never lost his domicile in New Hampshire.”
Ahlgren said Pierce was out of the state “for a definite period,” but had he changed his mind and stayed in Washington for an indefinite period, he would have relinquished his residency.
Ahlgren said Havenstein “believes he can meet the constitutional requirement by simply establishing domicile,” but said “intent” is not enough to satisfy the law.
He said Ahlgren does not meet the legal requirement that “New Hampshire is his place of abode ‘to the exclusion of all others.’
“He had it on a tenuous basis until 2009, but then he lost it,” Ahlgren said. “As honest as his intentions were, he wasn’t here.”
Monday afternoon, the campaign manager for Havenstein’s Republican primary opponent, Andrew Hemingway, issued a statement:
“We are looking forward to the opportunity to demonstrate the clear differences between the two candidates looking for the Republican nomination,” said Alicia Preston. “Mr. Havenstein has said that this is a race about experience — agree. It’s a race about the right kind of experience. Unlike Mr. Havenstein, Andrew has built and sold small businesses right here in New Hampshire and understands the needs of the small business person. Andrew has spent the past five years fighting for New Hampshire citizens by leading the charge to successfully repeal the devastating LLC tax, by working to elect 100 House members who stand with conservative values and by fending off the ever growing arm of government.”
Havenstein, she said, has shown that he has a “lack of understanding of the process” at the State House.