Hobson v. Pow

Citation434 F. Supp. 362
Decision Date16 June 1977
Docket NumberCiv. A. No. 76-G-1453-W.
PartiesWayne T. HOBSON, Individually, and on behalf of all others similarly situated, Plaintiff, v. Gladys POW, Virginia Sansing, Tommie Jones, Individually, as members of the Board of Registrars of Bibb County, and on behalf of all other Boards of Registrars in the State of Alabama, Glen Smitherman, Individually and as Sheriff of Bibb County, and William J. Baxley, Individually and as Attorney General of the State of Alabama, Defendants.
CourtU.S. District Court — Northern District of Alabama

COPYRIGHT MATERIAL OMITTED

Edward Still and Judith S. Crittenden, Birmingham, Ala., for plaintiff.

James S. Ward, Asst. Atty. Gen., Montgomery, Ala., for the Attorney General of the State of Alabama.

Charles C. Partin III, Stone & Partin, Bay Minette, for Baldwin County Board of Registrars.

MEMORANDUM OF DECISION

GUIN, District Judge.

This action for declaratory and injunctive relief has been instituted and maintained under the first and fourteenth amendments of the Constitution of the United States and 42 U.S.C. §§ 1983 and 1988. This court has jurisdiction over the parties and the subject matter of this action.

This action was filed on October 26, 1976, by Wayne T. Hobson, for himself and for the class of men who had been or would be disenfranchised by Ala.Const., Art. 8, § 182 (1901), and Ala.Code of 1940 (Recomp. 1958), Tit. 17, § 15, because of a conviction for "assault and battery on the wife." The complaint alleged these provisions denied men equal protection of the laws. The defendants Gladys Pow, Virginia Sansing and Tommie Jones were the Board of Registrars of Bibb County.1 They were sued individually and as representatives of the class of Boards of Registrars. Glen Smitherman, Sheriff of Bibb County, and William J. Baxley, Attorney General of Alabama, were sued for interim injunctive relief only.

The plaintiff requested a temporary restraining order. Upon notice to the defendants, the court heard and granted the application for the temporary restraining order, the text of which is set out below.2 By agreement of the parties the temporary restraining order was allowed to expire (after the November Presidential election) and the case was submitted on plaintiff's motion for summary judgment.

The plaintiff requested discovery from the absent members of the defendant class. Because the plaintiff's discovery covered official records of the defendants and was deemed not burdensome, the court granted the motion.3

CLASS STATUS

The responses of the Boards to the interrogatories show that at least 160 men have been denied registration. Along with the men who will be affected by this provision in the future, the 160 present class members are so numerous that joinder of all is impracticable. There is a common question of law binding this class together: is the "wife-beater" provision unconstitutional? Wayne Hobson's claim is typical of the members of the class in that he is barred from voting because of his conviction. It makes no difference whether these men were excluded from registering or were later purged from the voting rolls.4 Hobson and the class all share one characteristic — they cannot vote because of this disqualifying offense — and this fact is more important than any other in regard to this attack on the franchise provisions of the Alabama Constitution. Because of his congruity of interest with the class, Hobson has represented the class fairly and adequately. Notice of the pendency of the class action is not necessary when, as here, the case is brought pursuant to the provisions of Rule 23(b)(1) and (b)(2) of the Federal Rules of Civil Procedure.

The defendant class consists of 67 three-member boards, making joinder impracticable. As noted above, the plaintiff's attack centers on the constitutional provision itself, not the actions of any particular board.

As already noted, some of the boards have failed to answer the interrogatories, some have purged "wife-beaters" and some have not; some keep adequate records and some do not. These differences are handled by the establishment of three sub-classes:

Sub-class A:
Those boards that did not respond to the interrogatories or which have records of purged electors for less than ten (10) years: Autauga, Baldwin, Barbour, Bibb, Blount, Bullock, Calhoun, Chambers, Cherokee, Chilton, Choctaw, Clarke, Clay, Cleburne, Coffee, Conecuh, Coosa, Covington, Crenshaw, Cullman, Dale, Dallas, DeKalb, Escambia, Etowah, Fayette, Franklin, Greene, Hale, Henry, Jackson, Jefferson, Lamar, Lauderdale, Lee, Lowndes, Marengo, Marion, Montgomery, Pickens, Pike, Saint Clair, Shelby, Sumter, Talladega, Tallapoosa, Tuscaloosa, Walker, Washington, Wilcox, and Winston;
Sub-class B:
Those boards which have purged "wife-beaters" and have records for more than 10 years: Madison, Mobile and Russell; Sub-Class C: Those boards which have not purged "wife-beaters" within the last 10 years: Butler, Colbert, Elmore, Geneva, Houston, Lawrence, Limestone, Marshall, Monroe, Morgan, Perry, Randolph, and Russell.
CONSTITUTIONALITY

This action concerns the application of constitutional and statutory provisions of Alabama law by the registrars of Bibb County. The provisions in question state as follows:

Section 182. The following persons shall be disqualified both from registering, and from voting, namely:
All idiots and insane persons; those who shall by reason of conviction of crime be disqualified from voting at the time of the ratification of this Constitution; those who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, ... Emphasis supplied. Ala.Const., Art. 8, § 182.
§ 15. Disqualifications of elector to vote. — The following persons shall be disqualified both from registering and voting: All idiots and insane persons; those who were by reason of conviction of crime disqualified from voting at the time of the ratification of the Constitution on November 28, 1901; those who have been since November 28, 1901, or who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on wife, .... Emphasis supplied. Ala.Code of 1940 (Recomp. 1958), Tit. 17, § 15.

The plaintiff was removed from the list of registered voters in Bibb County and was disqualified from voting or standing as a candidate for public, elective office in Alabama because he had been convicted of assault and battery on his wife, a misdemeanor charge. (See Ala.Code 1940 (Recomp.1958), Tit. 14, § 33.)

It is well established that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. That right is one which is, perhaps, "preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). While the right to vote can be restricted, the purpose of the restriction and the overriding state interest served by it must meet a close constitutional scrutiny. Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). In such cases, a court must determine whether the exclusion is necessary to promote a compelling state interest. Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970).

The State's interest in preserving the "purity" of the franchise may allow it to exclude all felons, c.f., Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), but exclusion of some, but not all, of a subject category of persons (here, misdemeanants) must be supported by a compelling state interest. See, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). The State can show no such interest here — or even a rational reason — to support the exclusion of wife beaters, while not excluding others convicted of assault and battery pursuant to Title 14, § 33.

To survive constitutional review, gender-based classifications, at a minimum, must be "reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971), quoting from F. S. Royster Guano Company v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920). The Constitution tolerates no difference based exclusively on sex for those persons similarly situated.

In this case, the plaintiff has been denied the right to vote because of a conviction for assault and battery against his spouse. Yet, women who are convicted of assault and battery against their spouses do not lose their right to vote.

A number of lower courts have found that the principle of equal protection is violated when different punishment for offenses is grounded merely on the basis of gender. Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972); United States ex rel. Robinson v. York, 281 F.Supp. 8, 16 (D.Conn.1968); Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968). In the present case, men and women who are convicted of spousal assault and battery are treated differently: only men are denied the right to vote.

This case does not question "whether a State may constitutionally exclude some or all convicted felons from the franchise." Richardson v. Ramirez, supra. Instead, it questions whether the state may exclude people from the franchise by treating one...

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    ...upon and to be intended to discriminate on the basis of race—a suspect classification. Likewise, in the earlier case of Hobson v. Pow, 434 F.Supp. 362 (N.D.Ala. 1977), the district court applied strict scrutiny to Alabama constitutional and statutory provisions that disenfranchised men upon......
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