Redhail v. Zablocki

• Decision Date: 31 August 1976
• Docket Number: Civ. A. No. 74-C-624.
• Citation: 418 F. Supp. 1061
• Parties: Roger G. REDHAIL et al., Plaintiffs, v. Thomas E. ZABLOCKI et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

418 F. Supp. 1061

Roger G. REDHAIL et al., Plaintiffs, v. Thomas E. ZABLOCKI et al., Defendants.

Civ. A. No. 74-C-624.

United States District Court, E. D. Wisconsin.

August 31, 1976.

Georgia Lutze, Patricia Nelson and Robert H. Blondis, Milwaukee Legal Services, Inc., Milwaukee, Wis., for plaintiffs.

Robert P. Russell, Corp. Counsel, and David J. Siler, Asst. Corp. Counsel, Milwaukee, Wis., for defendants.

Before TONE, Circuit Judge, and REYNOLDS and WARREN, District Judges.

REYNOLDS, District Judge.

This is a class action challenging the constitutionality of a Wisconsin statute, § 245.10(1), (4), and (5) (1973),¹ which requires certain residents to obtain court permission before they can marry. The action is brought pursuant to 42 U.S.C. § 1983, and jurisdiction is conferred by 28 U.S.C. § 1343(3). Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 822 (1972). The statute is attacked on the grounds that it conflicts with rights secured by the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution. The relief sought includes a declaratory judgment that the statute is unconstitutional as well as an injunction restraining its enforcement. We hold that the statute violates the Fourteenth Amendment's equal protection clause and that the relief requested should be granted.

I.

In January of 1972, a paternity action was commenced in the County Court, Civil Division, of Milwaukee County, Wisconsin, against plaintiff Roger G. Redhail in which it was alleged that he was the father of a baby girl born out of wedlock on July 5, 1971. On February 23, 1972, Redhail appeared and admitted that he was the father of the child. On May 12, 1972, Redhail was adjudged the father of the child born on July 5, 1971, and was ordered to pay $109 per month as support for the child until she reached eighteen years of age, and was also ordered to pay court costs.

At the time of his admission of paternity, Redhail was a minor and a high school student. From May of 1972 until August of 1974, he was unemployed, indigent, and unable to pay any support obligation. No payments were, therefore, made, and as of December 24, 1974, there was an arrearage in excess of $3,732.

Redhail's child has been a public charge since her birth and is currently receiving benefits under the Aid to Families with Dependent Children ("AFDC") program in excess of $109 per month. Thus, the child would be a public charge even if Redhail were current in the payment of support ordered in the paternity action.

On September 27, 1974, Redhail filed an application for a marriage license with defendant Thomas E. Zablocki. Zablocki is the County Clerk of Milwaukee County and is responsible for the issuance of marriage licenses in Milwaukee County pursuant to § 245.05, Wis.Stats. On September 30, 1974, an agent of Zablocki denied Redhail's application for a marriage license and refused to issue a marriage license solely because Redhail failed to comply with § 245.10(1), Wis.Stats., in that he did not have a court order granting him permission to marry.

The complaint in this action was filed on December 24, 1974. Since a permanent injunction restraining the enforcement of a state statute was requested, the action was one requiring a three-judge district court, 28 U.S.C. § 2281. Designation of a three-judge court was requested, and on January 6, 1975, the Chief Judge of the Seventh Circuit entered an order designating this three-judge court pursuant to 28 U.S.C. § 2284. Defendant subsequently filed his answer. Notice was given to the governor and the attorney general pursuant to 28 U.S.C. § 2284(2).

On February 18, 1975, plaintiff filed a motion for a class action. The motion sought to have the action maintained as a class action on behalf of all Wisconsin residents subject to the provisions of § 245.10(1) and against a class consisting of all the county clerks within Wisconsin. By order dated February 20, 1975, Judge Reynolds ordered that the action proceed as a class action pursuant to Rule 23(b)(2), Federal Rules of Civil Procedure, on behalf of a class of plaintiffs defined as follows:

"All Wisconsin residents who have minor issue not in their custody and who are under an obligation to support such minor issue by any court order or judgment and to whom the county clerk has refused to issue a marriage license without a court order, pursuant to § 245.10(1), Wis.Stats. (1971)."

The order also established a briefing schedule in the event plaintiffs desired to maintain the action against a class consisting of all the county clerks. While plaintiffs filed a brief in support of the motion, defendant Zablocki has never filed a brief in opposition.

Following the filing of a stipulation of facts and briefs, oral argument was held on June 23, 1975, in which a representative from the Wisconsin attorney general's office participated. The Court requested the parties to discuss the applicability of Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), and plaintiffs later filed a memorandum on this issue.

II.

Before reaching the merits, it is necessary to discuss the Huffman issue as well as to decide whether the action should be maintained against a class of defendants consisting of all the county clerks in the State of Wisconsin.

A.

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Court held that federal courts must refrain from granting injunctions which would interfere with pending state criminal proceedings in the absence of extraordinary circumstances such as when there is a showing of "bad faith" or "harassment" by the state officials responsible for the prosecution, supra at 54, 91 S.Ct. 746, or where the state law to be applied is "`flagrantly and patently violative of express constitutional prohibitions,'" supra at 53, 91 S.Ct. at 755. In a companion case, Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), the same abstention doctrine was held to apply to granting declaratory judgments.²

Huffman v. Pursue, Ltd., supra, extended Younger to a situation where the state court action, although nominally civil rather than criminal, was "in important respects * * * more akin to a criminal prosecution than are most civil cases. The State is a party * * * and the proceeding is both in aid of and closely related to criminal statutes which prohibit the dissemination of obscene materials. * * *" Supra 420 U.S. at 604, 95 S.Ct. at 1208. Huffman also held that the federal plaintiff who has lost at the state court trial "must exhaust his state appellate remedies before seeking relief in the District Court, unless he can bring himself within one of the exceptions specified in Younger." Supra 420 U.S. at 608, 95 S.Ct. at 1210. The Court did not, however, decide whether Younger applies to any type of state court proceeding. Supra at 607, 95 S.Ct. at 1200.

In the circumstances of this action, it is unnecessary to decide whether Younger should be further extended. Plaintiff Redhail did not petition a state court for permission to marry under the provisions of § 245.10(1) after he was denied a marriage license. There is, therefore, no pending state proceeding which would be frustrated by granting the relief requested. In the absence of a pending state criminal prosecution, both declaratory judgments and injunctions may be issued. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). Thus, even assuming that Younger should be held to apply to any type of state court proceeding, since plaintiff Redhail never initiated a proceeding under § 245.10(1), there is no threat to the "principle underlying Younger and Samuels * * * that state courts are fully competent to adjudicate constitutional claims * * *." Doran v. Salem Inn, Inc., supra, at 930, 95 S.Ct. at 2567.

Nor is there any requirement that a federal plaintiff in an action under 42 U.S.C. § 1983, such as Redhail, first apply to state courts for relief. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), established the principle that exhaustion of state remedies is not a prerequisite to commencing a § 1983 action. See also, Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963).

There is, therefore, no barrier to consideration of plaintiffs' claims on the merits even if the principles of Younger and Huffman are held to apply to any state court proceeding.³

B.

Plaintiffs seek to have this action maintained as a class action as to defendants under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The defendant class is defined in the complaint as "all county clerks of counties within the State of Wisconsin, all of whom are required by § 245.10(1) Wis.Stats. (1971) to refuse to issue marriage licenses to members of the class of plaintiffs without a court order." As stated above, defendant Zablocki has not filed a brief indicating why this action should not be allowed to proceed against a class of defendants.

Rule 23(a) prescribes the essential prerequisites that must be satisfied for any class action. They are satisfied here. First, the class of defendants, consisting of the seventy-two county clerks in Wisconsin, is "so numerous that joinder of all members is impracticable." Rule 23(a)(1). Next, there is a question of law common to all the members of the class — the constitutionality of the challenged statute. Thirdly, the claims and defenses of the representative party, defendant Zablocki, are "typical of the claims or defenses of the class," Rule 23(a)(3), since Zablocki's contention that his action in refusing a marriage license to Redhail was justified by the statute would undoubtedly be asserted by the other county clerks. Finally, defendant Zablocki is a representative party who "will...