Cornman v. Dawson

• Decision Date: 29 January 1969
• Docket Number: Civ. No. 20028.
• Citation: 295 F. Supp. 654
• Parties: Tillye CORNMAN; Herbert Tabor; Celia White Tabor; Edward Tabor; Mary D. Pratt; Elliott Vessell; Reynold R. Holliday; Elizabeth J. Holliday; Chris A. Hansen; Mary E. Hansen; Carlos Shultz; and Frances Legallais, Plaintiffs, v. Rose K. DAWSON and Marie M. Garber, as Members of the Permanent Board of Registry for Montgomery County, Maryland, Defendants.
• Court: U.S. District Court — District of Maryland

295 F. Supp. 654

Tillye CORNMAN; Herbert Tabor; Celia White Tabor; Edward Tabor; Mary D. Pratt; Elliott Vessell; Reynold R. Holliday; Elizabeth J. Holliday; Chris A. Hansen; Mary E. Hansen; Carlos Shultz; and Frances Legallais, Plaintiffs, v. Rose K. DAWSON and Marie M. Garber, as Members of the Permanent Board of Registry for Montgomery County, Maryland, Defendants.

Civ. No. 20028.

United States District Court D. Maryland.

January 29, 1969.

Richard Schifter and Strasser, Spiegelberg, Fried, Frank & Kampelman, Washington, D. C., and Howard J. Thomas, Silver Spring, Md., for plaintiffs.

George W. Liebmann, Asst. Atty. Gen., and Robert F. Sweeney, Deputy Atty. Gen., Baltimore, Md., and Carl Lee Frederick, Jr., Wheaton, Md., for defendants.

Before WINTER, Circuit Judge, THOMSEN, Chief Judge, and HARVEY, District Judge.

HARVEY, District Judge:

In this action brought under the Civil Rights Act,¹ plaintiffs challenge a provision of the Maryland Constitution which they claim has denied them the right to vote. Pursuant to 28 U.S.C. § 2281, a three-judge court has properly been convened, and the case has been heard on the pleadings and stipulations of the parties.

All twelve plaintiffs reside on the grounds of the National Institute of Health, a federal reservation located within the geographical boundaries of Montgomery County, Maryland. Ten of the twelve had been registered voters within the State of Maryland for many years until October 19, 1968 when they were advised by the defendants, who are members of the Permanent Board of Registry of Montgomery County, that their names would be removed from the County voters' registry because as residents of federal property they did not qualify for voting in Maryland under the State Constitution. Two of the plaintiffs attempted to register to vote in the general election to be held on November 5, 1968 but were not permitted to do so for the same reasons.

Plaintiffs thereupon filed this action seeking a declaratory judgment and injunctive relief which would prevent the removal from the voters' registry of the names of ten of the plaintiffs and which would require the registration of the other two plaintiffs. Plaintiffs also filed a motion together with affidavits seeking a temporary restraining order and a preliminary injunction. On October 25, 1968, which was one day after the complaint and motion were filed, a hearing was held before this Court. In view of the very short time for preparation on both sides, the Court did not attempt to render a decision on the merits of the case following that hearing. However, pursuant to 28 U.S.C. § 2284(3), Chief Judge Thomsen entered an order on October 28, 1968 enjoining the defendants until further order of this Court from removing the names from the voters' registry of the ten plaintiffs who had previously been registered.² Such order did not require the defendants to register the other two plaintiffs. Following the submission of briefs, another hearing before the Court was held on January 2, 1969 at which time the case was fully argued on the merits. Additional stipulations have likewise been filed.

The provision of the Maryland Constitution under attack is Article I, § 1, which gives the right to vote to every citizen of the United States of the age of 21 years or more "who has been a resident of the State for one year, and of * * * the county, in which he may offer to vote, for six months next preceding the election, * * *". In Royer v. Board of Election Supervisors, 231 Md. 561, 191 A.2d 446 (1963), cert. den. 375 U.S. 921, 84 S.Ct. 267, 11 L.Ed.2d 65 (1963), the Court of Appeals of Maryland held that residents of a federal enclave located within the State of Maryland are not residents of the State for the purposes of voting. Plaintiffs claim that as so construed, § 1 of Article I of the Maryland Constitution denies them the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. For the reasons hereafter stated, we agree.

Under Article I, section 8, clause 17 of the United States Constitution, Congress is empowered to "exercise exclusive Legislation in all Cases whatsoever * * over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;". Ever since Opinion of the Justices, 42 Mass. 580 (1840), and Sinks v. Reese, 19 Ohio St. 306 (1869), it has been held in most of the cases considering the question that where the federal government has exclusive jurisdiction of an enclave, persons residing in such enclave are not state residents for voting purposes.³ The rationale for these decisions was stated by the Court in Sinks v. Reese as follows, at page 316:

"By becoming a resident of the federal enclave, a person though up to that time he may have been a citizen and resident of Ohio, ceases to be such; he is relieved from any obligation to contribute to their revenues, and is subject to none of the burdens which she imposes upon her citizens. He becomes subject to the exclusive jurisdiction of another power, as foreign to Ohio as is the states of Indiana or Kentucky, or the District of Columbia."

In the earlier cases, there was little doubt that the United States had exclusive jurisdiction over the enclave in question. However, the issue is presented in a somewhat different light in the pending case as a result of the enactment by Congress of various statutes which have effected a retrocession to Maryland and other states of portions of the federal government's exclusive jurisdiction over federal enclaves and the exercise by Maryland of the powers which Congress has returned to the State.

Where the federal government has exclusive jurisdiction over land located within the geographical boundaries of a state, it can hardly be doubted that no constitutional right of a resident of the enclave is infringed by the state's refusal to grant such resident the right to vote. But it would be equally clear that if there were a retrocession by the federal government to a state of all or substantially all incidents of jurisdiction, such state could not constitutionally deny residents of the enclave the right to vote.⁴ The facts of the present case lie somewhere in between these readily demonstrable extremes. The question here is whether Maryland has undertaken to impose on residents of this federal enclave obligations and duties of state citizenship to such a degree that it would amount to unconstitutional discrimination if the right to vote were not likewise granted. Determination of this question requires a balancing of the incidents of jurisdiction still retained by the federal government against those exercised by the State of Maryland as well as consideration of the nature of the right that plaintiffs claim has been denied to them.

Exclusive jurisdiction to lands acquired by the United States for general purposes was ceded by the State of Maryland to the federal government by virtue of Chapter 743 of the Acts of 1906, now codified as §§ 31, 36 and 37 of Article 96 of the Annotated Code of Maryland (1964 Repl. Vol.). Specific consent was given for the acquisition of the grounds of the National Institute of Health in Montgomery County by § 34 of Article 96. Both § 34 and § 36 provide that the State shall retain the right to serve on the federal lands civil and criminal process of the courts of the State.⁵

The first of a series of enactments returning to the states portions of the federal government's exclusive jurisdiction over enclaves was passed by Congress in 1928. In that year, a statute was enacted which provided that in the case of the wrongful death of any person on a federal enclave, the same right of action would exist as though the place were under the jurisdiction of the state within whose exterior boundaries the place was. 16 U.S.C. § 457. In 1936, Congress authorized the states to extend to such areas their workmen's compensation laws. 40 U.S.C. § 290. In that same year, the Lea Act was passed which permitted the levying of gasoline and other motor vehicle fuel taxes upon fuels sold in federal enclaves. 4 U.S.C. § 104.

In 1939, jurisdiction was returned to the states to enforce their unemployment insurance laws within the borders of federal lands. 26 U.S.C. § 3305(d). The most extensive and far reaching retrocession statute enacted by Congress was the Buck Act in 1940. 4 U.S.C. §§ 105-110. That enactment gave the states "full jurisdiction and power" to levy and collect sales, use and income taxes within federal enclaves. A 1947 enactment permitted the states to tax a lessee's interest in real estate leased by the federal government from within an enclave. 10 U.S.C. § 2667(e).

Under the Assimilative Crimes Act, 18 U.S.C. § 13,⁶ the criminal laws of the states are applicable to federal enclaves, if the act or omission is not punishable by a Congressional statute. A 1948 amendment of this Act provides that the state law in force at the time of the act or omission governs if there is no pertinent federal law, eliminating the previous requirement of periodic re-enactments of the Act to keep abreast of changes in state penal laws. In 1950, Congress provided for payments by the federal government to local schools for the children of residents of federal reservations attending such schools. 20 U.S. C. § 236 et seq.⁷

The Maryland Legislature, although not granting residents of federal enclaves within the State the right to vote, has conferred other benefits of State citizenship on such individuals. Following the decision of the Court of Appeals in Lowe v. Lowe, supra, the Legislature in 1927 permitted residents of federal enclaves to use the State courts for divorce matters. § 23 of Article 16, Annotated Code of Maryland (1957 Ed.). Later it opened the State courts to such residents for adoption proceedings. § 69, Article 16. Children of...