Hinnant v. Sebesta, Civ. No. 72-440

• Decision Date: 14 August 1972
• Docket Number: 72-443.,Civ. No. 72-440
• Citation: 346 F. Supp. 913
• Parties: Jim HINNANT, individually and as representative of the class of similarly situated residents of the State of Florida, Plaintiff, v. Jim SEBESTA, as Supervisor of Elections, Hillsborough County, Florida, and as one of like class, and the State of Florida, Defendants. Joel Francis WOODMAN, individually, and Joel Francis Woodman, as representative of the class of similarly situated residents of the State of Florida, Plaintiff, v. James SEBESTA, Supervisor of Elections, Hillsborough County, Florida, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

346 F. Supp. 913

Jim HINNANT, individually and as representative of the class of similarly situated residents of the State of Florida, Plaintiff, v. Jim SEBESTA, as Supervisor of Elections, Hillsborough County, Florida, and as one of like class, and the State of Florida, Defendants.

Joel Francis WOODMAN, individually, and Joel Francis Woodman, as representative of the class of similarly situated residents of the State of Florida, Plaintiff, v. James SEBESTA, Supervisor of Elections, Hillsborough County, Florida, et al., Defendants.

Civ. Nos. 72-440, 72-443.

United States District Court, M. D. Florida, Tampa Division.

August 14, 1972.

Jim Hinnant, pro se.

Richard P. Condon, Tampa, Fla., Leslie Harold Levinson, Gainesville, Fla., amicus curiae.

Richard P. Condon, Tampa, Fla., for plaintiff Joel Francis Woodman.

Robert Shevin, Atty. Gen., State of Florida, Tallahassee, Fla., for State Defendants.

Michael J. O'Brien, Resident County Atty., Hillsborough County, Tampa, Fla., for defendant Jim Sebesta.

MEMORANDUM OPINION

HODGES, District Judge.

On February 10, 1972, following argument of the case before a three-judge panel, my colleagues held in Woodsum v. Boyd, 341 F.Supp. 448 (M.D.Fla.1972), that the durational residency requirements of Florida Statute 97.041, F.S.A., (1971) were unconstitutional under the equal protection clause of the Fourteenth Amendment. At that time the Florida law specified a minimum residency of one year in the state and six months in the county as a prerequisite to registration as an elector. Relying primarily upon Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), the Court held that the "compelling state interest test" was applicable, and that the state had not justified its statutory residency requirements in satisfaction of that stringent standard.

Any doubt as to the correctness of the decision in Woodsum was shortly removed by the Supreme Court opinion of March 21, 1972, in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). See Judge Young's concurring opinion in Woodsum, 341 F.Supp. at 454-455. By its decision in Blumstein the Supreme Court invalidated Tennessee's voter residency requirement of one year in the state and three months in the county.

During this period the Florida Legislature was sitting in regular session, having convened on February 1, 1972; and in obvious response to Woodsum and Blumstein, it enacted Chapter 72-197, Laws of Florida (1972), amending Florida Statute 97.041, F.S.A. so as to require a durational residency of sixty days. The Act was signed by the Governor on April 12 and filed in the office of the Secretary of State on April 13, 1972.

The present election schedule in the state is as follows. A primary election (and general election for certain non-partisan offices) will be conducted on September 12; a second primary or run-off election will be held on October 3; and the general election will be conducted on November 7. See Florida Statutes 100.031, 100.061 and 100.091, F.S.A. The registration period, insofar as the two primaries are concerned, ended on August 12, 1972, or 30 days prior to the date of the first primary election. Florida Statute 98.051(2), F.S.A. With regard to the general election, however, the books will remain open for registration until the thirtieth day preceding that election under the terms of the same statute, i. e., Section 98.051(2).

Having thus set the stage, attention can now be turned to the instant cases. The complaint of the plaintiff Hinnant was filed on August 2, 1972, and that of the plaintiff Woodman on the following day. Each was filed as a class action under 42 U.S.C.A. § 1983, and both attack the constitutionality of the sixty day durational residency requirement established by the recently enacted amendment of Florida Statute 97.041 (Chapter 72-197, Laws of Florida). On August 2, immediately after the filing of the first case, notice was dispatched to Chief Judge Brown of this Circuit together with a suggestion that a three-judge court be convened pursuant to 28 U.S.C.A. §§ 2281 and 2284. By letter dated August 4, received August 7, 1972, Judge Brown declined to constitute a three-judge court, saying: "I am of the view that there is no substantial Federal question any longer involved . . ." Cited in support of this decision was the Blumstein case and Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala.1970), affirmed, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971).

While Judge Brown did not expressly refer to Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), his refusal to convene a three-judge court must have been predicated upon the principle it established. In Bailey the Court held that despite the requirements of 28 U.S.C.A. § 2281, it is unnecessary to convene a three-judge court if, under prior decisions, the state statute being attacked is so palpably unconstitutional that any contention to the contrary would be frivolous.

Thus, upon receipt of Judge Brown's letter of August 4, this court promptly ordered the defendants to appear on August 11, 1972, and show cause why Florida Statute 97.041, F.S.A. as amended, should not be declared unconstitutional. The parties appeared, evidence was presented and argument was heard at that time.

Any questions concerning the jurisdiction of the court, the maintenance of these suits as class actions, and other kindred preliminary issues are clearly foreclosed by Woodsum and Blumstein, and no useful purpose would be served by any further discussion of those matters. Indeed, the same might also be said of the merits of the cases, particularly in view of Judge Brown's decision as noted earlier. Nevertheless, the arguments advanced by the State in support of the statute should at least be noted and briefly considered.

It is first contended that neither Blumstein nor any other decision dealing with the issue has yet struck down a durational residency requirement as short as sixty days. Secondly, it is urged that Florida is virtually unique among the states in that it attracts a huge number of part-time winter residents, tourists and other transients so that the likelihood of fraudulent registration is enhanced.

If the state actually closed its registration books sixty days prior to state and local elections and, in addition, could forcefully demonstrate that this period of time was necessary to verify the eligibility of electors and otherwise accomplish the many administrative tasks preparatory to conducting the election itself, then its argument in support of a sixty day period might have weight. But just as Tennessee did in Blumstein, Florida has elected to permit registration until thirty days before the election, and in so doing has already demonstrated that the thirty day period is sufficient for administrative preparation. See Woodsum v. Boyd, 341...