Sosna v. State of Iowa

• Decision Date: 16 July 1973
• Docket Number: No. 73-C-1002-ED.,73-C-1002-ED.
• Citation: 360 F. Supp. 1182
• Parties: 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.
• Court: U.S. District Court — Northern District of Iowa

360 F. Supp. 1182

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, E. D.

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, 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

"Durational 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 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 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. Connecticut, supra, 401 U.S. 371, 376, 91 S.Ct. 780, 785, 28 L. Ed.2d 113 (1971), we are convinced that Iowa's interest in establishing a one-year deferral period⁸ is sufficiently compelling to render §§ 598.6 and 598.9 of the 1971 Iowa Code constitutionally permissible.⁹

McMANUS, Chief Judge (dissenting):

I am compelled to dissent. In my view the majority's analysis of the constitutional issues involved is deficient. They incorrectly restrict the right to travel rationale, improperly apply the strict equal protection test and ignore the due process/access to the courts argument.

Citing Dunn v. Blumstein and Shapiro v. Thompson, supra, the majority concedes that durational residence requirements must be "measured by a strict equal protection test." From that point, however, the thrust of the opinion seems to be an attempt to distinguish the residence laws at issue in Dunn and Shapiro from that at issue here. Great emphasis is placed upon the fact that Dunn involved the right to vote and Shapiro the right to welfare benefits, while this case involves only divorce, "not a constitutional right, nor . . . a basic necessity to survival." The purpose of this distinction is unclear, but it appears to be a justification for utilizing some unidentified test, less stringent than strict equal protection. Although the majority does offer several purportedly "compelling" justifications for the discriminatory classifications inherent in section 598.6 of the Iowa Code, the record is devoid of evidence to support these justifications, since the state produced absolutely no evidence. See Dunn, supra, 405 U.S. at 346, 92 S.Ct. 995, 31 L.Ed.2d 274. Also the majority never expressly recognizes the necessity for considering less onerous alternatives when applying the "strict equal protection test." Accordingly, I deem it necessary to set forth what I consider to be the appropriate constitutional analysis mandated by the relevant case law.

It can no longer be disputed that the right to unhindered interstate travel and settlement, in and of itself, is a fundamental right guaranteed by the constitution of the United States. Dunn v. Blumstein, supra, at 338, 92 S.Ct. 995 (1972); Oregon v. Mitchell, 400 U.S. 112, 237, 91 S.Ct. 260, 27 L.Ed.2d 272 (separate opinion of Brennan, White and Marshall, JJ.), 285-286 (Stewart, J., concurring and dissenting, with whom Burger, C. J., and Blackmun, J., joined) (1970). Shapiro v. Thompson, supra, 394 U.S. at 629-631, 89 S.Ct. 1322, 22 L. Ed.2d 600 (1969); United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). It is also clear that section 598.6 of the Iowa Code is a durational residence requirement which penalizes only petitioners who have recently exercised the right to interstate migration. The majority's attempt to distinguish Dunn and Shapiro seems unfounded in view of the explicit language in Dunn wherei...