Kohn v. Davis

• Decision Date: 26 October 1970
• Docket Number: Civ. A. No. 6047.
• Citation: 320 F. Supp. 246
• Parties: Richard S. KOHN and Brenda F. Kohn v. Deane DAVIS, Governor of the State of Vermont, Thomas Hayes, Lt. Governor of the State of Vermont, Richard Thomas, Secretary of State of the State of Vermont, James Jeffords, Attorney General of the State of Vermont, John Burgess, Speaker of the House of Representatives, Maurice Chandler, Chairman of the Board of Civil Authority of the Town of Peacham, Vermont, Louis Lamoureux, Theodore Farrow, George Meech, Francis Berwick, John Keenan and Gilbert Randall, members of the Board of Civil Authority of the Town of Peacham, Vermont.
• Court: U.S. District Court — District of Vermont

320 F. Supp. 246

Richard S. KOHN and Brenda F. Kohn v. Deane DAVIS, Governor of the State of Vermont, Thomas Hayes, Lt. Governor of the State of Vermont, Richard Thomas, Secretary of State of the State of Vermont, James Jeffords, Attorney General of the State of Vermont, John Burgess, Speaker of the House of Representatives, Maurice Chandler, Chairman of the Board of Civil Authority of the Town of Peacham, Vermont, Louis Lamoureux, Theodore Farrow, George Meech, Francis Berwick, John Keenan and Gilbert Randall, members of the Board of Civil Authority of the Town of Peacham, Vermont.

Civ. A. No. 6047.

United States District Court, D. Vermont.

October 26, 1970.

Richard S. Kohn, pro se, and for plaintiff Brenda F. Kohn.

Martin K. Miller, Asst. Atty. Gen., Montpelier, Vt., for defendants Deane Davis, Thomas Hayes, Richard Thomas, James Jeffords and John Burgess.

Kyle T. Brown, Jr., Witters & Brown, St. Johnsbury, Vt., for defendants Maurice Chandler, Louis Lamoureux, Theodore Farrow, George Meech, Francis Berwick, John Keenan and Gilbert Randall.

Before WATERMAN, Circuit Judge and LEDDY and OAKES, District Judges.

LEDDY, District Judge.

This is an action for injunctive and declaratory relief brought pursuant to the provisions of 42 U.S.C.A. § 1983. The jurisdiction of the court was invoked under 28 U.S.C.A. § 1343(3), and this court has jurisdiction of the matter. Since injunctive relief restraining the operation of Vermont Statutes and officers of the State of Vermont and of the Town of Peacham is sought, a statutory three-judge district court was convened in accordance with 28 U.S.C.A. § 2284.

I. STATEMENT OF FACTS

The following facts were alleged by plaintiffs and conceded by defendants. Plaintiff, Richard S. Kohn, is 28 years old, a citizen of the United States and a resident and domiciliary of the State of Vermont since June 28, 1970, when he moved from Rhode Island to the Town of Peacham, Vermont, with the intention of making Vermont his residence. He is a lawyer, employed, and he has taken and passed the bar examination administered by the State of Vermont. He is now certified to practice in the State Courts of Vermont.

Brenda F. Kohn, spouse of plaintiff Richard Kohn, is also 28 years old and is a citizen of the United States. She was born in Hyde Park, Vermont, and after living in Rhode Island for a time, she moved to the Town of Peacham, Vermont with her husband on June 28, 1970, with intent to make Vermont her residence. She is employed as a teacher at Lyndon State College, Lyndonville, Vermont.

On September 4, 1970, plaintiffs appeared before the Town of Peacham Board of Civil Authority at its regularly scheduled meeting to revise the voter checklist in order that plaintiffs' names might be added to the list of eligible voters for the primary and general elections to be held on September 8 and November 3, 1970, respectively. Under Vermont law, the taking of the Freeman's Oath is one of the conditions precedent to the right to vote under Chapter II, § 36 of the Vermont Constitution. Both plaintiffs were administered the Freeman's Oath by the Peacham Board of Civil Authority. However, the Board refused to add the plaintiffs to the list of eligible voters on the basis that plaintiffs did not satisfy the one year residency requirement required by Vermont law.

II. APPLICABLE VERMONT LAW

On the question here presented, the Constitution of Vermont and the validity of two Vermont Statutes must be tested against the constitutional guarantees of the United States.

Chapter II, § 34 of the Vermont Constitution which is of venerable origin, since its source is the Vermont Constitution of 1777, provides that to enjoy the privileges of a freeman, including the right to vote, one year's residence in Vermont is required.

SECTION 34. Every person of the full age of twenty-one years, who is a natural born citizen of this or some one of the United States or who has been naturalized agreeably to the Acts of Congress, having resided in this state for the space of one whole year next before the election of representatives, and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a freeman of this state:

You solemnly swear (or affirm) that whenever you give your vote or suffrage, touching any matter that concerns the State of Vermont, you will do it so as in your conscience you shall judge will most conduce to the best good of the same, as established by the Constitution, without fear or favor of any person (emphasis in original).

In addition, 17 V.S.A. § 62 (1957) requires a one year residency in Vermont in order to vote for state officers and further requires as part of the one year, a ninety day residence in a town in order to vote for representatives to the general assembly and justices.

§ 62. Voters at general election

Every citizen twenty-one years of age or more, having resided in the state one year next preceding a general election, who has taken the freeman's oath as provided in the constitution, shall have the right to vote at such election for the officers to be elected thereat in the town where he resides on the day of such election; but he shall not vote for representatives to the general assembly or justices at such election, unless he has resided during the ninety days next preceding such election in the town which is his residence on the day of such election.

Lastly, 17 V.S.A. § 63 requires all of the above for a Vermont citizen who leaves the state and who after residing elsewhere returns.

§ 63. Removal; nonresidence

A citizen, after removing from and residing without the state, shall not vote at such election, until he has resided in this state one year preceding the day of such election and taken the oath of allegiance to the state, the oath to support the Constitution of the United States and the freeman's oath.

III. ISSUES PRESENTED

Plaintiffs have questioned and placed in issue only the one year durational residency requirement set down by Vermont law. Plaintiffs claim that the one year durational residency requirement abridges their right to equal protection of the laws secured under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and interferes with their right to interstate travel. Accordingly, we confront only the validity of the one year durational residency requirement of the State of Vermont as a precondition to the exercise of plaintiffs' right to vote.

The court is not unmindful of the fact that we encounter a legal issue which is difficult of resolution. It has long been established that the right is reserved to the States "* * * to determine the conditions under which the right of suffrage may be exercised * * *" (citations omitted). Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072 (1959). However, the individual must also be protected and it is settled law that

* * * once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.

Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966).

IV. EQUAL PROTECTION

Governmental classifications which create a disparity in treatment are the foundation of all violations of the equal protection clause. The applicable Vermont laws, all of which require a one year durational residency, create a discriminatory treatment differential in that Vermonters who have resided in the State for one year can vote while those who have not resided in the State for one year cannot. Thus, a discriminatory classification results based solely upon duration of residence in Vermont. However, before this classification and its necessary effects rise to the level of an equal protection violation, it must be shown that the discriminatory classification is unjustified in terms of governmental purpose under the applicable standard of review.

(a) Standard of Review

At least two standards have emerged for testing the constitutional validity of a state statute on equal protection grounds. See generally, Note, Developments in the Law-Equal Protection, 82 Harv.L.Rev. 1065, 1077-1132 (1969). The first standard of review, which seems to have the longest history, looks simply to the reasonableness of the classification in light of its legislative purposes. Judged by this standard, "A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). See also Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L. Ed.2d 1435 (1960); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 55 L.Ed. 369 (1911).

The second standard defines a more active judicial posture and under it, a discriminatory classification can be upheld only when it is necessary in the service of some compelling state interest. It is clear that in the absence of some fundamental and constitutionally protected right the "active" or "compelling state interest" test will not apply. See McDonald v. Board of Election, 394 U.S. 802, 806-807, 89 S.Ct. 1404, 22 L. Ed.2d 739 (1969). In McDonald, the Supreme Court refused to apply the more stringent "compelling state interest" test because it was not shown that the statute had

* * * an impact on appellants' ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. 394 U.S. at 807, 89 S.Ct. at 1408 (emphasis added).

Indeed, whenever the Supreme Court has characterized a right as "fundamental", the compelling state interest standard is applied. Interests found to be fundamental and worthy of application of the compelling state interest test are the right to travel, Shapiro v. Thompson, 394 U.S. 618...