Shivelhood v. Davis, Civ. A. No. 6479.

• Decision Date: 30 December 1971
• Docket Number: Civ. A. No. 6479.
• Citation: 336 F. Supp. 1111
• Parties: Edwina SHIVELHOOD et al. v. Deane C. DAVIS, Governor of the State of Vermont, et al.
• Court: U.S. District Court — District of Vermont

336 F. Supp. 1111

Edwina SHIVELHOOD et al. v. Deane C. DAVIS, Governor of the State of Vermont, et al.

Civ. A. No. 6479.

United States District Court, D. Vermont.

December 30, 1971.

COPYRIGHT MATERIAL OMITTED

Karen McAndrew, American Civil Liberties Union of Vermont, Burlington, Vt., for plaintiffs.

Martin Miller, Asst. Atty. Gen., State of Vermont, Montpelier, Vt., for defendants Deane C. Davis, Governor of the State of Vermont and James Jeffords, Atty. Gen. of the State of Vermont.

Chester S. Ketcham and Wynn Underwood, Underwood, Lynch & Ketcham, Middlebury, Vt., for all remaining defendants.

OPINION AND ORDER

LEDDY, Chief Judge.

I

Five students at Middlebury College, Middlebury, Vermont, brought this action against the Town Clerk and the members of the Board of Civil Authority of the Town of Middlebury and the Governor and Attorney General of the State of Vermont, alleging deprivation of their voting rights. The action was dismissed as to the Governor of Vermont on December 27, 1971, and was dismissed as to the Attorney General of Vermont on December 29, 1971, for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b) (6).

The named plaintiffs originally sought to maintain this action on behalf of "all students who attend institutions of learning within the State of Vermont, and who wish to register and vote in the communities in which they attend school." We think that this suit may properly be maintained as a class action pursuant to Fed.R.Civ.P. 23(b) (1) (A) and 23(b) (2). However, it is our opinion, and the plaintiffs' attorney now concedes, that the class should be limited to those students physically residing in the Town of Middlebury who desire to register and vote therein. Only for a class so limited are "questions of law or fact common to the class" raised by the complaint. Fed.R.Civ.P. 23(a) (2).

This class definition is still quite broad. We do not narrow it further at the present time because this broad class definition may be necessary to insure the efficacy of prospective injunctive relief relating to procedures to be followed by the Middlebury Board of Civil Authority in examining voter applications. Although some of the relief which may be granted may not apply to all members of the class, Rule 23 provides sufficient flexibility to enable us to limit various types of relief to various class members.

The plaintiffs have requested a preliminary injunction permitting them to vote in the special election to be held on January 7, 1972, for the purpose of electing a United States Senator and Congressman and for voting on a local charter question. Moreover, the regular town meeting is scheduled for early March and it is not anticipated that a final order will be entered before this meeting. The plaintiffs have therefore requested that the preliminary injunction continue in force until a final disposition of the case. An evidentiary hearing on plaintiffs' request for preliminary injunction was held on December 27 and 29, 1971, all parties being represented by counsel.

Any decision as to the propriety of a preliminary injunction does not reflect our opinion on the merits of final relief. Nevertheless, the plaintiffs have demonstrated at the hearing on their request for a preliminary injunction that the Middlebury Board of Civil Authority has improperly interpreted the standards of law by which it was to evaluate the plaintiffs' applications for voter registration. In light of this, and recognizing the fundamental nature of the franchise and the fact that restrictions thereon are subject to the closest scrutiny, we think that some form of preliminary relief is appropriate. See, e.g., Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969).

Because domicile is largely a question of fact to be ascertained by the Middlebury Board of Civil Authority, it would be improper for this Court to review the applications of each class member and decide who may or may not be allowed to vote at the forthcoming election. However, because we have before us considerable evidence concerning the five named plaintiffs, we think that at least those of the named plaintiffs who, in all probability, would have been registered if proper legal standards had been observed should be allowed to vote at the January 7, 1972, election. Moreover, we will order that the Board of Civil Authority reconsider all applications of members of the class prior to the March town meeting.

II

17 V.S.A. § 64(a) (Supp.1971) requires that the Middlebury Board of Civil Authority in determining domicile must determine whether an individual "is domiciled in Middlebury as his permanent dwelling place, with the intention of remaining there indefinitely, or returning there if absent from it." The Board of Civil Authority has interpreted this provision as requiring that applicants intend to remain in Middlebury permanently. We think this is error, and that the statute must be construed as requiring only an intent to remain in Middlebury "indefinitely." Thus, an individual's knowledge that he will graduate from an institution of learning and may possibly leave Middlebury after his graduation does not of itself preclude him from obtaining domicile in Middlebury if he has no definite plans to leave the Town and move elsewhere. Similarly, an individual's present intention to attend graduate school outside of Middlebury does not of itself preclude him from obtaining domicile in Middlebury if he presently intends to return to Middlebury after graduation from graduate school.

17 V.S.A. § 64(b) (Supp.1971) states that the filing of "a written statement under oath, in a form prescribed by the secretary of state, certifying as to the period immediately preceding such filing during which he has continuously resided in that town" constitutes "prima facie evidence of the commencement or period of such person's residence in a municipality or voting district, and in the state, for all purposes." This statement is subject to the penalties of perjury, and a knowingly false statement is subject to a $5,000.00 fine. Accordingly, the Board of Civil Authority is required to place on the voter check list any member of the class who files such a statement unless the Board has sufficient evidence which would serve to rebut such a statement.

The quantum of evidence required to rebut the prima facie evidence of an applicant's oath is not capable of precise determination. The Board of Civil Authority must honestly and fairly evaluate all the evidence which it has available in order to determine whether this evidence is sufficient to overcome the applicant's sworn statement. In making this evaluation, the Board must bear in mind that election laws are to be liberally construed and that a very heavy burden of proof must be met if persons are to be disenfranchised. Cf. Kohn v. Davis, 320 F.Supp. 246 (D.Vt.1970).

Because, as previously noted, domicile is largely a question of fact for the Board's determination, this Court will...