360 F.Supp. 1182 (N.D.Iowa 1973), 73-C-1002, Sosna v. State of Iowa

Docket Nº:73-C-1002-ED.
Citation:360 F.Supp. 1182
Party Name:Carol Maureen SOSNA, on behalf of herself and all others similarly situated, Plaintiff, v. The STATE OF IOWA, and A. L. Keck, Individually and as Judge of the District Court of the State of Iowa in and for Jackson County, Defendants.
Case Date:July 16, 1973
Court:United States District Courts, 8th Circuit
 
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Page 1182

360 F.Supp. 1182 (N.D.Iowa 1973)

Carol Maureen SOSNA, on behalf of herself and all others similarly situated, Plaintiff,

v.

The STATE OF IOWA, and A. L. Keck, Individually and as Judge of the District Court of the State of Iowa in and for Jackson County, Defendants.

No. 73-C-1002-ED.

United States District Court, N.D. Iowa, Eastern Division.

July 16, 1973

H. Edwin Simmers, Paul E. Kempter, Dubuque, Iowa, for plaintiff.

Richard C. Turner, Atty. Gen., George W. Murray Special Asst. Atty. Gen., Des Moines, Iowa, for defendants.

Before STEPHENSON, Circuit Judge, McMANUS and HANSON, Chief District Judges.

STEPHENSON, Circuit Judge.

Plaintiff, Carol Maureen Sosna, is presently a resident of Green Island, Jackson County, Iowa. She has resided there since August 1972, prior to which she resided in the State of New York. She was married to respondent, Michael Sosna,

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on September 5, 1964 in the State of Michigan.

In September 1972, plaintiff instituted marriage dissolution proceedings against respondent, a non-resident, in the District Court of Iowa, Jackson County, pursuant to Iowa Code Chapter 598. Iowa Code § 598.6 (1971), 1 requires a one year Iowa residency by a petitioner when the respondent is a non-resident. By order dated December 27, 1972, the Honorable A. L. Keck, a co-defendant herein, in ruling on a special appearance of respondent, dismissed the petition pursuant to Iowa Code § 598.9 (1971) 2 for want of jurisdiction.

Plaintiff now brings this class action pursuant to Fed.R.Civ.P. 23, and seeks to have §§ 598.6 and 598.9 (1971) declared unconstitutional as violative of her right to petition for redress of grievances under the First Amendment, 3 the Fourteenth Amendment, 4 and in violation of her right to travel freely from one state to another insofar as it imposes a one year durational residency requirement. She also prays for an injunction against its further applications. A three-judge district court was convened to consider the merits of this cause. See, 28 U.S.C. § 2281. 5

"[D]urational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are ' necessary to promote a compelling governmental interest."' Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969).

We are not dealing here with the right to vote nor the privilege to receive welfare as involved in Dunn, supra and Shapiro, supra. In Dunn, the Court held that a durational residency requirement imposed under Tennessee law which precluded newcomers from voting was not necessary to further a compelling state interest. With emphasis placed upon the difference between bona fide residence requirements and durational residence requirements, the Court noted that new residents as a group may be less informed relative to state and local issues than older residents, and that durational residency requirements will exclude some uninformed new residents. It concluded, however, that "... as devices to limit the franchise to knowledgeable residents, the conclusive presumptions of durational residence requirements are much too crude. ... They represent a requirement of knowledge unfairly imposed on only some citizens." The basic constitutional right to vote, therefore, could not be annulled

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where the "relationship between the state interest in an informed electorate" and the one year residency requirement demonstrated "simply too attenuated a relationship." Dunn v. Blumstein, supra, 405 U.S. 330, 359-360, 92 S.Ct. 995, 1012 (1972).

In Shapiro, the Court noted that the record reflected "weighty evidence" that the main thrust of the durational residency requirement in issue was to exclude from that jurisdiction the poor who needed or would probably need relief. Shapiro v. Thompson, supra, 394 U.S. 618, 628, 89 S.Ct. 1322, 1328, 22 L.Ed.2d 600 (1969). In declaring the welfare residency requirement unconstitutional, the Court reasoned that implicit in any attempt to restrain potential welfare recipients from entering a state, when the motivating factor of the indigents is to seek higher benefits, is the notion that this class of indigents is "less deserving than indigents who do not take this consideration into account." Id. 394 U.S. 618, 631-632, 89 S.Ct. 1322, 1330. The net effect of the requirement was the creation of two classes of indigents-the sole distinction being a residency requirement which denied the newcomers the very means to obtain their subsistence. Id., 394 U.S. 618, 627, 89 S.Ct. 1322, 1327.

Furthermore, the Court expressly stated in Shapiro that it did not purport to outlaw summarily all duration residency requirements.

"We imply no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel." 394 U.S. 618, 638 n. 21, 89 S.Ct. 1322, 1333 n. 21.

Unlike voting or welfare, the concept of divorce is not a constitutional right, nor is it a basic necessity to survival. See, Whitehead v. Whitehead, 492 P.2d 939, 945 (Hawaii 1972); accord, Coleman v. Coleman, 32 Ohio St.2d 155, 291 N.E.2d 530, 533 (1972). Divorce is wholly a creature of statute, with the absolute power to prescribe the conditions relative thereto being vested in the state. 6 See, Pennoyer v. Neff, 95 U.S. 714, 734-735, 24 L.Ed. 565 (1877).

It is significant to note in this connection that the Iowa Dissolution of Marriage Act is based upon a "no-fault" concept of divorce. See, 20 Drake L. Rev. 211 (1971). While this innovative reform promotes a more harmonious dissolution of a marital breakdown, cf., In re Marriage of Williams, 199 N.W.2d 339, 342 (Iowa 1972), it was not the intent of the legislature to create in Iowa a virtual sanctuary for transient divorces based upon sham domiciles. To the contrary, Iowa law favors the preservation of marriage whenever possible, as evidenced by the ninety-day conciliation period of the new Iowa act. The period is mandatory unless waived by the court upon a showing of good cause. 7 Moreover, the deferral period may well foster a re-examination of marriage so that a couple might determine whether the move itself has helped restore tranquility to their estranged relationship. Place v. Place, 129 Vt. 326, 278 A.2d 710, 711-712 (1971); accord, Coleman v. Coleman, supra, 32 Ohio St.2d 155, 291 N.E.2d 530, 535 (1972). It also serves to discourage Iowa from unnecessarily interfering with a marital relationship between non-residents in which it has no interest.

Based upon the foregoing, with particular consideration being given to

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the power of a state to regulate its own laws governing marriage and its dissolution, Pennoyer v. Neff, supra, 95 U.S. 714, 734-735, 24 L.Ed. 565 (1877); accord, Boddie v...

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