Sosna v. Iowa 360 F. Supp. 1182

STEPHENSON, Circuit Judge.

Plaintiff, Carol Maureen Sosna, is presently a resident of Green Island, Jackson County, Iowa. She has resided there since August 1972, prior to which she resided in the State of New York. She was married to respondent, Michael *1183Sosna, on September 5, 1964 in the State of Michigan.

In September 1972, plaintiff instituted marriage dissolution proceedings against respondent, a non-resident, in the District Court of Iowa, Jackson County, pursuant to Iowa Code Chapter 598. Iowa Code § 598.6 (1971),1 requires a one year Iowa residency by a petitioner when the respondent is a non-resident. By order dated December 27, 1972, the Honorable A. L. Keck, a co-defendant herein, in ruling on a special appearance of respondent, dismissed the petition pursuant to Iowa Code § 598.9 (1971)2 for want of jurisdiction.

Plaintiff now brings this class action pursuant to Fed.R.Civ.P. 23, and seeks to have §§ 598.6 and 598.9 (1971) declared unconstitutional as violative of her right to petition for redress of grievances under the First Amendment,3 the Fourteenth Amendment,4 and in violation of her right to travel freely from one state to another insofar as it imposes a one year durational residency requirement. She also prays for an injunction against its further applications. A three-judge district court was convened to consider the merits of this cause. See, 28 U.S.C. § 2281.5

“[Djurational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are ‘necessary to promote a compelling governmental interest.’ ” Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969).

We are not dealing here with the right to vote nor the privilege to receive welfare as involved in Dunn, supra and Shapiro, supra. In Dunn, the Court held that a durational residency requirement imposed under Tennessee law which precluded newcomers from voting was not necessary to further a compelling state interest. With emphasis placed upon the difference between bona fide residence requirements and durational residence requirements, the Court noted that new residents as a group may be less informed relative to state and local issues than older residents, and that durational residency requirements will exclude some uninformed new residents. It concluded, however, that “. . .as devices to limit the franchise to knowledgeable residents, the conclusive presumptions of durational residence requirements are much too crude. . They represent a requirement of knowledge unfairly imposed on only some citizens.” The basic constitutional right to vote, therefore, could not be an*1184nulled where the “relationship between the state interest in an informed electorate” and the one year residency requirement demonstrated “simply too attenuated a relationship.” Dunn v. Blumstein, supra, 405 U.S. 330, 359-360, 92 S.Ct. 995, 1012 (1972).

In Shapiro, the Court noted that the record reflected “weighty evidence” that the main thrust of the durational residency requirement in issue was to exclude from that jurisdiction the poor who needed or would probably need relief. Shapiro v. Thompson, supra, 394 U.S. 618, 628, 89 S.Ct. 1322, 1328, 22 L.Ed.2d 600 (1969). In declaring the welfare residency requirement unconstitutional, the Court reasoned that implicit in any attempt to restrain potential welfare recipients from entering a state, when the motivating factor of the indigents is to seek higher benefits, is the notion that this class of indigents is “less deserving than indigents who do not take this consideration into account.” Id. 394 U.S. 618, 631-632, 89 S.Ct. 1322, 1330. The net effect of the requirement was the creation of two classes of indigents — the sole distinction being a residency requirement which denied the newcomers the very means to obtain their subsistence. Id., 394 U.S. 618, 627, 89 S.Ct. 1322, 1327.

Furthermore, the Court expressly stated in Shapiro that it did not purport to outlaw summarily all duration residency requirements.

“We imply no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel.” 394 U.S. 618, 638 n. 21, 89 S.Ct. 1322, 1333 n. 21.

Unlike voting or welfare, the concept of divorce is not a constitutional right, nor is it a basic necessity to survival. See, Whitehead v. Whitehead, 492 P.2d 939, 945 (Hawaii 1972); accord, Coleman v. Coleman, 32 Ohio St.2d 155, 291 N.E.2d 530, 533 (1972). Divorce is wholly a creature of statute, with the absolute power to prescribe the conditions relative thereto being vested in the state.6 See, Pennoyer v. Neff, 95 U.S. 714, 734-735, 24 L.Ed. 565 (1877).

It is significant to note in this connection that the Iowa Dissolution of Marriage Act is based upon a “no-fault” concept of divorce. See, 20 Drake L. Rev. 211 (1971). While this innovative reform promotes a more harmonious dissolution of a marital breakdown, cf., In re Marriage of Williams, 199 N.W.2d 339, 342 (Iowa 1972), it was not the intent of the legislature to create in Iowa a virtual sanctuary for transient divorces based upon sham domiciles. To the contrary, Iowa law favors the preservation of marriage whenever possible, as evidenced by the ninety-day conciliation period of the new Iowa act. The period is mandatory unless waived by the court upon a showing of good cause.7 Moreover, the deferral period may well foster a re-examination of marriage so that a couple might determine whether the move itself has helped restore tranquility to their estranged relationship. Place v. Place, 129 Vt. 326, 278 A.2d 710, 711-712 (1971); accord, Coleman v. Coleman, supra, 32 Ohio St.2d 155, 291 N.E.2d 530, 535 (1972). It also serves to discourage Iowa from unnecessarily interfering with a marital relationship between non-residents in which it has no interest.

Based upon the foregoing, with particular consideration being given to *1185the power of a state to regulate its own laws governing marriage and its dissolution, Pennoyer v. Neff, supra, 95 U.S. 714, 734-735, 24 L.Ed. 565 (1877); accord, Boddie v. Connecticut, supra, 401 U.S. 371, 376, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971), we are convinced that Iowa’s interest in establishing a one-year deferral period8 is sufficiently compelling to render §§ 598.6 and 598.9 of the 1971 Iowa Code constitutionally permissible.9

McMANUS, Chief Judge

(dissenting) :

I am compelled to dissent. In my view the majority’s analysis of the constitutional issues involved is deficient. They incorrectly restrict the right to travel rationale, improperly apply the strict equal protection test and ignore the due process/access to the courts argument.

Citing Dunn v. Blumstein and Shapiro v. Thompson, supra, the majority concedes that durational residence requirements must be “measured by a strict equal protection test.” From that point, however, the thrust of the opinion seems to be an attempt to distinguish the residence laws at issue in Dunn and Shapiro from that at issue here. Great emphasis is placed upon the fact that Dunn involved the right to vote and Shapiro the right to welfare benefits, while this case involves only divorce, “not a constitutional right, nor ... a basic necessity to survival.” The purpose of this distinction is unclear, but it appears to be a justification for utilizing some unidentified test, less stringent than strict equal protection. Although the majority does offer several purportedly “compelling” justifications for the discriminatory classifications inherent in section 598.6 of the Iowa Code, the record is devoid of evidence to support these justifications, since the state produced absolutely no evidence. See Dunn, supra, 405 U.S. at 346, 92 S.Ct. 995, 31 L.Ed.2d 274. Also the majority never expressly recognizes the necessity for considering less onerous alternatives when applying the “strict equal protection test.” Accordingly, I deem it necessary to set forth what I consider to be the appropriate constitutional analysis mandated by the relevant case law.

It can no longer be disputed that the right to unhindered interstate travel and settlement, in and of itself, is a fundamental right guaranteed by the constitution of the United States. Dunn v. Blumstein, supra, at 338, 92 S.Ct. 995 (1972); Oregon v. Mitchell, 400 U.S. 112, 237, 91 S.Ct. 260, 27 L.Ed.2d 272 (separate opinion of Brennan, White and Marshall, JJ.), 285-286 (Stewart, J., concurring and dissenting, with whom Burger, C. J., and Blackmun, J., joined) (1970). Shapiro v. Thompson, supra, 394 U.S. at 629-631, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). It is also clear that section 598.6 of the Iowa Code is a durational residence requirement which penalizes only petitioners who have re*1186cently exercised the right to interstate migration. The majority’s attempt to distinguish Dunn and Shapiro seems unfounded in view of the explicit language in Dunn wherein the court stated that “whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel) we conclude that the State must show a substantial and compelling reason for imposing durational residence requirements.” Id, 405 U.S. at 335, 92 S.Ct. at 999.

The standard, therefore, that must be applied in determining the constitutionality of sections 598.6 and 598.9 of the Iowa Code (1971) is the strict equal protection test. Under this test the burden is on the state to demonstrate that (1) the classification serves a compelling state interest, and (2) that no less restrictive alternatives are available to the state. As the court stated in Dunn, “It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity.” Id, at 343, 92 S.Ct. at 1003; see Oregon v. Mitchell, supra, 400 U.S. at 237, 239, 91 S.Ct. 260; Shapiro v. Thompson, supra, 394 U.S. at 634-638, 89 S.Ct. 1322; N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1962); Wymelenberg v. Syman, 328 F.Supp. 1353 (E.D.Wisc.1971). See also Whitehead v. Whitehead, 492 P.2d 939, 948 (Hawaii 1972) (Levinson, J., dissenting).

As the first “compelling” justification for section 598.6, the majority has found that it serves to prevent Iowa from becoming “a virtual sanctuary for transient divorces based upon sham domiciles.”1 This finding completely avoids the basic issue. Admittedly, Iowa has a legitimate interest in not becoming a “divorce mill.” The critical question, however, is whether this interest is served by denying bona fide resients of the state the right to seek a dissolution.2 In creating an irrebuttable presumption against recently arrived residents, the Iowa law sweeps too broadly since there are less restrictive alternatives available to the state. In my opinion, the Iowa judiciary is perfectly competent to determine whether the residence of a petitioner has been maintained in good faith and not for the purpose of obtaining a dissolution.3 *1187Neither the specter of perjury nor the argument for administrative convenience is supportive of the majority’s position or sufficient to justify the durational residence requirement in question. See Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (June 1973); Dunn, supra, 405 U.S. at 345-354, 92 S.Ct. 995; Boddie v. Connecticut, 401 U.S. 371, 381-382, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Shapiro, supra, 394 U.S. at 633, 89 S.Ct. 1322; Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). As stated in Dunn, supra, 405 U.S. at 351-352, 92 S.Ct. at 1007-1008,

“The State’s legitimate purpose is to determine whether certain persons in the community are bona fide residents. A durational residence requirement creates a classification that may, in a crude way, exclude nonresidents from that group. But it also excludes many residents. Given the State’s legitimate purpose and the individual interests that are affected, the classification is all too imprecise. In general, it is not very difficult for Tennessee to determine on an individualized basis whether one recently arrived in the community is in fact a resident, although of course there will always be difficult cases. But since Tennessee s presumption from failure to meet the durational residence requirements is conclusive, a showing of actual bona fide residence is irrelevant, even though such a showing would fully serve the State’s purposes embodied in the presumption and would achieve those purposes with far less drastic impact on constitutionally protected interests.”4

With regard to the other reasons advanced by the majority in support of § 598.6, I am convinced that they do not serve any compelling state interest. Initially, the majority states that the one-year “deferral period may well foster a re-examination of marriage so that a couple might determine whether the move itself has helped restore tranquility to their estranged relationship.” This reasoning, however, completely ignores the fact that § 598.6 requires a one-year residency of a petitioner only in the limited situation where the respondent does not reside in Iowa.5 It is difficult to conceive how “a couple might determine whether the move itself has helped restore tranquility to their estranged relationship” when in fact they are living in different states. The majority’s argument would be more plausible had the state seen fit to impose a one-year deferral period where both *1188the petitioner and the respondent are residents of the state.

The final state interest advanced by the majority is that the one-year deferral period “serves to discourage Iowa from unnecessarily interfering with a marital relationship between non-residents in which it has no interest.” This argument, however, ignores the fact that in the case of a bona fide resident, the state does have an interest in the marriage relationship regardless of whether the petitioner has been in Iowa for one year. Additionally, the argument ignores the fact that Iowa imposes no one-year deferral period in the situation where the respondent has recently moved to Iowa and the petitioner still lives in another state. The unnecessary interference in that situation, if any, would appear to be no different than in the present case.

Finally, the majority has ignored the due process/access to the courts concept enunciated in Boddie v. Connecticut, supra. Contrary to the majority’s contention that “divorce is wholly a creature of statute, with the absolute power to prescribe the conditions relative thereto being vested in the state”, and recognizing that marriage is a fundamental human relationship involving interests of basic importance in our society, the court in Boddie held that a state may not, consistent with the obligations imposed by the Due Process Clause, deny one class of citizens access to the procedures for adjusting that relationship, absent a showing by the State of a sufficient countervailing justification for that denial. Boddie, supra, 401 U.S. at 380, 91 S.Ct. 780; Wymelenberg v. Syman, supra; Whitehead v. Whitehead, supra. As with the filing fee requirement in Boddie, the durational residence requirement of § 598.6 denies one class of citizens access to the only procedure available for obtaining a dissolution. As a result, the state must show a sufficient countervailing justification for its restriction on plaintiff’s right to access to the courts to dissolve her marriage, which it totally failed to do.

For the above reasons I am of the view that the state has shown no sufficient countervailing justification to support its one-year residence requirement in light of the alternatives available.