Shiffman v. Askew

• Decision Date: 01 June 1973
• Docket Number: 71-401.,Civ. No. 73-38
• Citation: 359 F. Supp. 1225
• Parties: Seymour B. SHIFFMAN, Plaintiff, v. Reuben O'Donovan ASKEW, Governor of the State of Florida, and Robert Shevin, Attorney General for the State of Florida, Defendants. Catherine L. MAKRES, Plaintiff, v. Reuben O'Donovan ASKEW, Governor of the State of Florida, and Robert Shevin, Attorney General for the State of Florida, Defendants.
• Court: U.S. District Court — Middle District of Florida

359 F. Supp. 1225

Seymour B. SHIFFMAN, Plaintiff, v. Reuben O'Donovan ASKEW, Governor of the State of Florida, and Robert Shevin, Attorney General for the State of Florida, Defendants.

Catherine L. MAKRES, Plaintiff, v. Reuben O'Donovan ASKEW, Governor of the State of Florida, and Robert Shevin, Attorney General for the State of Florida, Defendants.

Civ. Nos. 73-38, 71-401.

United States District Court, M. D. Florida, Tampa Division.

June 1, 1973.

COPYRIGHT MATERIAL OMITTED

Richard A. Bokor, Tampa, Fla., Larry H. Spalding, Sarasota, Fla., for plaintiffs.

Jerry E. Oxner, Asst. Atty. Gen., Tallahassee, Fla., Herbert T. Schwartz, of Schwatrz, Schwartz & Lo Pucki, Gainesville, Fla., for defendants.

MEMORANDUM OPINION

HODGES, District Judge.

Following the lead of recent decisions concerning statutory durational residency requirements, the Plaintiffs in these cases challenge the constitutionality of Florida Statute § 61.021 (1971), F.S.A. A provision familiar to all lawyers, that section dictates that in order to obtain a dissolution of marriage ". . . the party filing the proceeding must reside six months in the state before filing the petition . . ."

Plaintiffs allege that they recently moved into the state as residents with the intention to make Florida their permanent home, and that their respective marriages are irretrievably broken¹ so that, but for the residency requirements of the statute, they would immediately institute proceedings in the state courts seeking dissolution of those marriages. The jurisdiction of this Court is invoked pursuant to 42 U.S.C.A. § 1983 and 28 U.S.C.A. §§ 1343(3), 2201 and 2202. The suits were filed as class actions pursuant to Rule 23, F.R.Civ.P.,² and the relief sought is a declaratory decree and injunction prohibiting the state from continuing to enforce its residency law.³

Two preliminary questions must be considered. First is the State's motion that this Court abstain from the exercise of jurisdiction pending consideration of the issues by the Courts of Florida. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Principal reliance is placed upon Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), but this is not a case involving an underlying criminal prosecution, as in Younger, and neither is it a case in which the issue of state law is unsettled, as in Reetz, so that a state court construction of the statute might avoid a constitutional confrontation and a possible irritant in the federal-state relationship. In the absence of such special circumstances abstention is unwarranted. E. g., Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964). The second preliminary question is whether the claim is moot since the named Plaintiffs could now satisfy the residency requirement of the statute they attack. It is established, however, particularly in class actions of this kind, that mootness does not occur when the issue is a continuing one "capable of repetition, yet evading review." E. g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 712-713, 35 L.Ed.2d 147 (1973); Dunn v. Blumstein, 405 U. S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). It is necessary, therefore, to consider the merits of Plaintiffs' claim.

The Plaintiffs' argument begins, chronologically, with the Supreme Court's decision in United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), builds upon other opinions rendered in the interim, and culminates with the recent decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed. 2d 201 (1973). Guest is the launching pad because it was there that the right of interstate travel was characterized as a basic constitutional right despite ". . . recurring differences in emphasis within the Court as to the source of that right." (383 U.S. at 759, 86 S. Ct. at 1179). With the pad thus constructed the first significant launching occurred in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), in which the Court invalidated a one year residency requirement as a prerequisite to the receipt of state welfare assistance. The residency restriction was held to be violative of Equal Protection and especially the right to travel. The precedential significance of the decision was the Court's application of the "compelling state interest" test. If the sole constitutional challenge had been an asserted denial of Equal Protection, the "traditional" standard would have been applied and the classification approved unless found to be "without any reasonable basis." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911), cited in Shapiro, 394 U.S. at 638, 89 S.Ct. at 1333, note 20. The Court concluded:

"But, of course, the traditional criteria do not apply in these cases. Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest. Under this standard, the waiting-period requirement clearly violates the Equal Protection Clause." (394 U.S. at 638, 89 S.Ct. at 1333).

The practical utility of the right to travel having been forcefully demonstrated as a means of potent constitutional assault, particularly with regard to residency requirements, the next application occurred in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). In that instance the Court vitiated Tennessee's durational residency requirement as a pre-condition to registration as an elector, leaning heavily upon Shapiro and indicating that any durational residency condition imposed by a state necessarily impinges upon the right to travel so that it can pass constitutional muster only if supported by a compelling state interest.

These principles were most recently solidified in the Court's so-called abortion cases, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). In the latter opinion the Court held the residency requirement of the Georgia statute to be unconstitutional, citing the right to travel concept of Shapiro as well as the Privileges and Immunities Clause (93 S.Ct. at 751-752).⁴

Plaintiffs thus mount a substantial multi-faceted constitutional challenge arguing a denial of equal protection, violation of the right to travel, breach of the privileges and immunities clause, and, citing Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), denial of due process and access to the courts. It cannot be said, however, that any or all of these various decisions necessarily compel a conclusion that all statutory durational residency requirements are per se unconstitutional. Rather, they stand for the proposition that such restrictions must be supported by a "compelling state interest." And while the compelling interest standard is a stringent one, to be sure, as demonstrated by the results achieved in these same decisions, it would be paradoxical to assume that compelling interests are altogether non-existent.

The precise issue—durational residency as a precondition to suit for divorce—has been judicially considered on four occasions with divergent results. Wymelenberg v. Syman, 328 F.Supp. 1353, (E.D.Wis.1971); Place v. Place, 278 A. 2d 710 (Vt.1971); Whitehead v. Whitehead, 492 P.2d 939 (Hawaii 1972); Coleman v. Coleman, 32 Ohio St.2d 155, 291 N.E.2d 530 (1972). The three-judge District Court in Wymelenberg struck the statute while the three state decisions upheld it. For the reasons that follow, I have concluded that the Florida Statute is supported or justified by a compelling state interest and is entitled to constitutional exoneration.

From the inception of our Federal system through Pennoyer v. Neff⁵ to the equally well known decisions in Williams I and II,⁶ and most recently in Boddie v. Connecticut, supra, the Supreme Court has consistently recognized the unique status of marriage and divorce as involving a myriad of socio-legal ramifications, virtually all of which are left to the exclusive province of the states. In 1858 the Court declared:

"Our first remark is—and we wish it to be remembered—that this is not a suit asking the court for an allowance of alimony . . .

"We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony . . ." Barber v. Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1858).⁷

Mr. Justice Frankfurter addressed the subject as frequently, and certainly as exhaustively, as any other member of the Court. E. g., Williams I, 317 U.S. at 304, 63 S.Ct. at 216 (concurring opinion); Williams II, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (majority opinion); Sherrer v. Sherrer, 334 U.S. 343, 356, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429 (1948) (dissenting opinion). In the latter case he said:

"If the marriage contract were no different from a contract to sell an automobile, the parties thereto might well be permitted to bargain away all interests involved, in or out of court. But the State has an interest in the family relations of its citizens vastly different from the interest it has in an ordinary commercial transaction. That interest cannot be bartered or bargained away by the immediate parties to the controversy by a default or an arranged contest in a proceeding for divorce in a State to which the parties are strangers."

* * * * * * "That society has a vital interest in the domestic relations of its members will be almost impatiently conceded. . . . Nowhere in the United

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