Stottlemyer v. Stottlemyer

Dissenting Opinion by

Mr. Justice Roberts:

I dissent. I cannot approve, as the majority does, the closing of the courthouse door with a one-year time lock to a Pennsylvanian seeking a divorce from another Pennsylvanian. The majority seeks to justify this denial of access by saying that there is only a deferral of the judicial remedy. But it is proverbial that “Justice delayed is justice denied,” and this jurisprudential doctrine is expressly recognized in the Pennsylvania Constitution: “All courts shall be open; and every man for an injury done him . . . shall have remedy by due course of law, and right and justice administered without . . . delay.” 1 The one-year residence requirement for commencement of divorce proceedings thus violates the Pennsylvania Constitution and the federal guarantee of due process of law. 2

Furthermore, the majority errs seriously in its equal protection analysis. In my view, it is not enough that *523 this durational residence requirement satisfies the “rational relationship” test. Rather, it cannot stand unless “necessary to promote a compelling governmental interest.” 3 Because the Commonwealth’s interests could be served by means less burdensome to the fundamental interests involved, the one-year residence requirement is not necessaA"y to the promotion of the Commonwealth’s interests and, therefore, must fall.

I.

As Mr. Justice Harlan wrote for the United States Supreme Court in Boddie v. Connecticut, 401 U.S. 371 , 91 S. Ct. 780 (1971): “[T]he right to due process reflects a fundamental value in our American constitutional system.

“[D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.” Id. at 374, 377 , 91 S. Ct. at 784, 785 .

Further, the opportunity to be heard must be “granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 , 85 S. Ct. 1187, 1191 (1965), quoted in Boddie v. Connecticut, supra, at 378 , 91 S. Ct. at 786 . 4 Boddie also provides a guide for ascertaining the precise content of this requirement as it applies to those seeking divorce. “[A]lthough they assert here due process rights as would-be jilaintiffs, we *524 think appellants’ plight, because resort to the state courts is the only avenue to dissolution of their marriages, is akin to that of defendants faced with exclusion from the only forum effectively empowered to settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court. For both groups this process is not only the paramount dispute-settlement technique, but, in fact, the only available one. In this posture we think that this appeal is properly to be resolved in light of the principles enunciated in our due process decisions that delimit rights of defendants compelled to litigate their differences in the judicial forum.” 401 U.S. at 376-77 , 91 S. Ct. at 785 (emphasis added).

Because those seeking divorce, unlike most defendants, require judicial relief from the status quo, the precise analogy must be to those defendants who have been subjected to preliminary injunctions. It can hardly be imagined that due process would be accorded if the state, where a preliminary injunction affecting such a fundamental interest as that in marriage had been entered, forbade any inquiry into its propriety for one year. And certainly it cannot be asserted that such a moratorium would be permitted by the Pennsylvania Constitution, which commands that justice be “administered without... delay.” 5

The majority acknowledges the authority of Boddie , but contends that it has been limited by the decisions in United States v. Kras, 409 U.S. 434 , 93 S. Ct. 631 (1973), and Ortwein v. Schwab, 410 U.S. 656 , 93 S. Ct. 1172 (1973). Those cases are entirely inapposite to the question before us. Both relied on the absence of any effect upon a fundamental interest, coupled with the “existence of alternatives... to the judicial remedy.” *525 Ortwein v. Schwab, supra, at 659, 93 S. Ct. at 1174, United States v. Kras, supra, at 445-46, 93 S. Ct. at 638. In the instant case, however, we are faced with precisely the factors which Boddie found controlling: the state-created requirement of access to the judicial process as “the exclusive precondition to the adjustment of a fundamental relationship.” 401 U.S. at 383 , 91 S. Ct. at 788 . Consequently, Boddie governs this case.

In a further effort to escape the mandate of Boddie , the majority contends, without textual support, that Boddie applies only where there is a “threat of permanent denial of access to the courts.” Ante at 522. Even on its own premise, this argument is doomed to failure, for it ignores the mobility of our populace. For many people, more or less frequent changes of domicile are a fact of life. In this very case, appellant changed her domicile twice within ai year. If Illinois imposed a similar durational residence requirement, then appellant would have been precluded from even seeking a divorce for her entire 11 month period of residence in Illinois and then for an additional year after her return to Pennsylvania. This amply illustrates that the challenged statute, combined with similar requirements in other states, does indeed threaten long and indefinite denials of access to the courts, similar to that involved in Boddie .

But even if the majority’s distinction of Boddie were conceded, there would still remain the unmistakable mandate of our state constitution that justice be “administei*ed without . . . delay.” This command is the rock upon which any effort to sustain the statute before us must founder, for it clearly forbids the Commonwealth to delay for an entire year any access to the courts by a Pennsylvania citizen otherwise entitled to relief against another Pennsylvania citizen.

*526 For these reasons, the one year residence requirement for access to the divorce courts violates both article I, section 11 of the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution.

II.

This statute also denies appellant the equal protection of the laws guaranteed by the Fourteenth Amendment.

As the majority recognizes, “any statutory classification which ‘penalizes’ the exercise of the right of interstate travel must be supported by a compelling state interest.” Ante at 509, Shapiro v. Thompson, 394 U.S. 618, 634 , 89 S. Ct. 1322, 1331 (1969); Dunn v. Blumstein, 405 U.S. 330, 339 , 92 S. Ct. 995, 1001 (1972); Memorial Hospital v. Maricopa County, 415 U.S. 250, 258 , 94 S. Ct. 1076, 1082 (1974). Surely denial of appellant’s right to seek divorce because of her recent exercise of the right to travel penalizes her for that exercise.

The Commonwealth, by means of the one-year residence requirement, denies appellant access to the courts for the purpose of seeking a divorce — “the adjustment of a fundamental human relationship.” 6 “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

“Marriage is one of the ‘basic civil rights of man’ . .. .” Loving v. Virginia, 388 U.S. 1, 12 , 87 S. Ct. 1817, 1824 (1967).

Where the burden imposed on the interstate traveler affects so fundamental an interest, that burden must be viewed as a penalty imposed upon those who have *527 recently exercised their constitutional right to “migrate, resettle . . . and start a new life” 7 in Pennsylvania.

It may be objected that the interest at issue here is not marriage, but divorce. However, as the Supreme Court recognized in Boddie v. Connecticut, 8 the two interests are not easily separated. Only by resort to the courts may spouses “liberate themselves from the constraints of legal obligations that go with marriage, and more fundamentally the prohibition against remarriage.” 9 Clearly, to one whose existing marriage is lifeless, the right to remarry is equivalent in importance to the right to marry initially. While the state may regulate the grounds on which divorce will be granted, it may not discriminate among those who meet its substantive requirements on the basis of an unconstitutional criterion. See Boddie v. Connecticut, 401 U.S. 371, 385-86 , 91 S. Ct. 780, 790 (1971) (I)OUGLAS, J., concurring in the result).

Neither is it sufficient to reason, as some courts 10 have that divorce is only deferred briefly and “[djivorce can wait. 11 As previously noted, many people, for occupational or other reasons, change domicile relatively frequently. The danger of denying the more mobile segments of our population any access to the divorce courts for long periods through cumulation of durational residence requirements is a powerful argument *528 for insisting that these requirements be justified by a compelling state interest.

It is also no answer to say, “There is no indication that appellant was compelled to travel to [Pennsylvania] prior to filing for a divorce . . . .” Coleman v. Coleman, 32 Ohio St. 2d 155 , 159 n.4, 291 N.E.2d 530 , 533 n.4 (1972). This forces those in appellant’s position to choose between migration and prompt adjustment of their marital situations. Even more importantly, where, as here, the respondent spouse chooses to migrate, one in appellant’s situation is then forced to sacrifice important values no matter what course is taken. If she chooses to follow her spouse, she abandons all hope of prompt relief should reconciliation prove unsuccessful. If she refuses to migrate, she abandons all hope of reconciliation and must then undertake an ex parte divorce proceeding, which cannot settle matters of property or child custody, Estin v. Estin, 334 U.S. 541 , 68 S. Ct. 1213 (1948), and is subject to collateral attack, Williams v. North Carolina [II], 325 U.S. 226 , 65 S. Ct. 1092 (1945).

Despite the magnitude of this burden, the majority concludes that it does not constitute a penalty. As an original proposition, it would seem that, “[a] ‘penalty’ in this context means the suffering of ‘disadvantage, loss or hardship due to some action.’ ” Larsen v. Gallogly, 361 P. Supp. 305, 307 (D.R.I. 1973) (three-judge court) (holding Rhode Island two-year residence requirement for divorce unconstitutional). The majority, however, relies on two recent opinionless orders 12 *529 of the Supreme Court affirming district courts which upheld, against right to travel challenges, one-year durational residence requirements for entitlement to subsidized in-state tuition rates for public higher education. While the basis for these orders is unclear, they appear to rest upon a conclusion that the durational residence requirements there involved did not “penalize” the interstate traveler. 13 Consequently, it does appear that not every cost imposed upon the exercise of the right to interstate travel will be deemed a “penalty.”

But the burden imposed here is not merely the denial of subsidized tuition at a state university or of a “license to . . . hunt, or fish.” 14 Bather it involves denial of access to the courts of this Commonwealth for the purpose of seeking a divorce. 15 It can hardly *530 be doubted that the interest in divorce is of greater constitutional magnitude than that in a college tuition subsidy. 16 Furthermore, whatever may be the constitutional status of the right to receive welfare benefits, compare Memorial Hospital v. Maricopa County, 415 U.S. 250, 257-61 , 94 S. Ct. 1076, 1082-83 (1974), with Dandridge v. Williams, 397 U.S. 471, 487 , 90 S. Ct. 1153, 1162 (1970), it is clear that it “has far less constitutional significance” than the right to seek a divorce. Ortwein v. Schwab, 410 U.S. 656, 659 , 93 S. Ct. 1172, 1174 (1973). It is therefore clear that this case is governed by Shapiro, Dunn, and Memorial Hospital , requiring the application of the more stringent standard.

This conclusion also represents the overwhelming consensus of the federal courts which have passed on this issue. Makres v. Askew, 500 F.2d 577 (5th Cir. 1974), aff'g Shiffman v. Askew, 359 F. Supp. 1225 (M.D. Fla. 1973) (both applying compelling interest standard); Larsen v. Gallogly, 361 F. Supp. 305 (D.R.I. 1973) (three-judge court); Mon Chi Heung Au v. Lum, 360 F. Supp. 219 (D. Hawaii 1973) (three-judge court); Wymelenberg v. Syman, 328 F. Supp. 1353 (E.D. Wis. 1971) (three-judge court); contra, Sosna v. Iowa, 360 F. Supp. 1182 (N.D. Iowa 1973) (three-judge court) (2-1), prob. juris, noted, 415 U.S. 911 , 94 S. Ct. 1405 (1974).

What, then, are the state interests which purport to justify the one-year durational residence requirement here involved? They have been succinctly stated: “[I]t is indelibly ingrained in our federal system that *531 the entire field of marriage and divorce is left to the individual regulation of the several states. . . . [T]he states have a vital and individual interest in such regulation, not only with respect to the effective implementation of their own internal policies, but also in avoiding any intrusion upon the authority and policies of a sister state concerning the same marriage or the same parties. . . . [T]he states have an equally vital and closely related interest in assuring the future validity and integrity of their judicial decrees, particularly in ex parte proceedings predicated upon constructive service of process, because those decrees are subject to collateral attack in other jurisdictions and may frequently involve the personal and property rights of third persons whose legal interests are peculiarly dependent upon those decrees, i.e., subsequent spouses of the parties, the children of both, their respective estates and others.” 17

These are weighty interests indeed, which may well be compelling. But it is not enough that the state interests be compelling. The state must also use means which are precisely tailored to serve those interests without unnecessarily burdening the exercise of the right to travel. Memorial Hospital v. Maricopa County, 415 U.S. 250, 262-69 , 94 S. Ct. 1076, 1084-88 (1974); Dunn v. Blumstein, 405 U.S. 330, 345-60 , 92 S. Ct. 995, 1004-12 (1972); cf. Dean Milk Co. v. City of Madison, 340 U.S. 349, 354-56 , 71 S. Ct. 295, 298-99 (1951). The durational residence requirement here is not so tailored. The requirement is unduly burdensome to the exercise of the right to travel in at least two ways.

First, the statute 18 fails to distinguish between those divorce proceedings conducted ex parte and those, such *532 as this, 19 where both spouses are (new) domiciliarles of the Commonwealth and properly before the court. 20 In cases where both spouses are Pennsylvanians no other jurisdiction has any interest in the marriage and the dangers of collateral attack are extremely remote. Consequently, the Commonwealth has no substantial interest in excluding those cases from its courts for even the year required to satisfy the statutory requirement. Thus, without regard to the broader issues tendered, the statute is unconstitutional as applied to those cases where both parties, as here, are domiciliarles of the Commonwealth and both are before the court.

Second, the statute precludes those, like appellant, who have been residents for less than one year from even attempting to show they are bona fide domiciliar *533 ies. No matter how overwhelming their proof of domicile, the statute closes the courts to them. All the state interests advanced may be fully served by a finding of domicile which is adequately supported to withstand collateral attack, bolstered as it is by the constitutional mandate that “great deference” be accorded such judgments even on the issue of jurisdiction. Williams v. North Carolina [II], 325 U.S. 226, 234 , 65 S. Ct. 1092, 1097 (1945). Consequently, a rebuttable presumption that those resident for less than one year are not domiciliaries would adequately serve the state interests in question. 21 To the extent that false allegations of domicile are feared, that problem may be met by judicial vigilance, stringent requirements of proof, and the ordinary tools used to prevent and detect perjury. It may be that few will be able to prove domicile with sufficient clarity, but that does not justify failure to give relief to those who can.

Surely this statute could be made less onerous to interstate travelers by both of the means suggested above. Neither of them requires sacrifice of the weighty state interests implicated in the durational residence requirement. In response, the majority answers only that more judicial time would be required to ascertain the facts in each case. 22 Economy of judicial effort, *534 however desirable, is simply not a compelling interest. As the Supreme Court said in Stanley v. Illinois, 405 U.S. 645, 656-57 , 92 S. Ct. 1208, 1215 (1972): “. . . [I]t may be argued that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case .... The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less and perhaps more, than mediocre ones.

“Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of [fact], when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand. 23

*535 Because the statute before us is not narrowly tailored to the service of the state purposes which purport to justify it, the Equal Protection Clause forbids that it be given any effect. As noted in Part I of this opinion, the statute is also inconsistent with Article I, section 11 of the Pennsylvania Constitution and the Due Process Clause of the Fourteenth Amendment. For all of these reasons, I would reverse the order of the Superior Court and remand to the Court of Common Pleas for proceedings on the merits.

Mr. Justice Mandeeino joins in this dissenting opinion.

Pa. Const, art. I, §11 (emphasis added).

U.S. Const., amend. XIV, §1.

Dunn v. Blumstein, 405 U.S. 330, 342 , 92 S. Ct. 995, 1003 (1972) (emphasis in original); Memorial Hospital v. Maricopa County, 415 U.S. 250, 262-69 , 94 S. Ct. 1076, 1084-88 (1974); Shapiro v. Thompson, 394 U.S. 618, 634 , 89 S. Ct. 1322, 1331 (1969).

See also the cases cited in Boddie, 401 U.S. at 377 -79 & n.3, 91 S. Ct. at 785 -87 & n.3.

Pa. Const., art I, §11.

Boddie v. Connecticut, 401 U.S. 371, 383 , 91 S. Ct. 780, 788 (1971) (per Hablan, J.).

Memorial Hospital v. Maricopa County, 415 U.S. 250, 255 , 94 S. Ct. 1076, 1080 (1974), quoting from Shapiro v. Thompson, 394 U.S. 618, 629 , 89 S. Ct. 1322, 1328 (1969).

401 U.S. 371 , 91 S. Ct. 780 (1971).

Id. at 376 , 91 S. Ct. at 785 .

Whitehead v. Whitehead, 53 Hawaii 302, 312 , 492 P.2d 939, 945 (1972). See also, Davis v. Davis, 297 Minn. 187, 193 , 210 N.W.2d 221, 225 (1973); Coleman v. Coleman, 32 Ohio St. 2d 155 , 159 n.5, 291 N.E.2d 530 , 533 n.5 (1972).

Whitehead v. Whitehead, 53 Hawaii 302, 312 , 492 P.2d 939, 945 (1972).

Starns v. Malkerson, 401 U.S. 985 , 91 S. Ct. 1231 (1971), aff’g mem. 326 F. Supp. 234 (D. Minn. 1970); Sturgis v. Washington, 414 U.S. 1057 , 94 S. Ct 563 , aff’g mem. 368 F. Supp. 38 (W.D. Wash. 1973).

Hadnott v. Amos, 401 U.S. 968 , 91 S. Ct 1189 , aff’g mem. 320 F. Supp. 107 (M.D. Ala. 1970), which is also relied upon by the majority is not in point. Although the district court purported to *529 uphold the validity of Alabama’s durational residence requirement for circuit judge candidates, 320 F. Supp. at 119-23 , that portion of the opinion is sheer dictum. The court had already determined that the plaintiff was not a resident of the judicial circuit at all. Because residence, as opposed to durational residence, requirements create no burden on the right to travel, they do not raise the sort of constitutional problems now before us. Memorial Hospital v. Maricopa County, 415 U.S. 250, 253-54 , 94 S. Ct. 1076, 1080 (1974). Thus, the finding of non-residence was sufficient to dispose of petitioner’s claim to placement on the ballot without regard to the validity of the durational residence requirement.

This was the basis of both of the district court decisions which were affirmed. More importantly, it is difficult to ascertain what compelling state interests, incapable of being served by less onerous means, might have sustained the requirements against the strict scrutiny mandated by Shapiro and Dunn if a “penalty” were found.

Shapiro v. Thompson, 394 U.S. 618 , 638 n.21, 89 S. Ct. 1322 , 1333 n.21 (1969) (reserving decision on whether durational residence requirements for these privileges constitute penalties for exercise of the right to interstate travel).

With regard to the weight of this interest, cf. Pa. Const., art. I, §11: “All courts shall be open; and every man for an injury done him . . . shall have remedy by due course of law, and right and justice administered without. .. delay.”

Compare, Boddie v. Connecticut, 401 U.S. 371, 383 , 91 S. Ct. 780, 788 (1971) (marriage “fundamental relationship'’) and Loving v. Virginia, 388 U.S. 1, 12 , 87 S. Ct. 1817, 1824 (1967) (“Marriage is one of the ‘basic civil rights of man’ . . . .”) with San Antonio Independent School District v. Rodriguez, 411 U.S. 1 , 93 S. Ct. 1278 (1973) (education not fundamental right).

Shiffman v. Askew, 359 F. Supp. 1225, 1231 (M.D. Fla. 1973), aff’d Makros v. Askew, 500 F. 2d 577 (5th Cir. 1974), quoted in the amicus brief for the Commonwealth.

“No spouse shall be entitled to commence proceedings for divorce by virtue of this act who shall not have been a bona fide *532 resident in this Commonwealth at least one whole year immediately previous to the filing of his or her petition or libel: Provided, That, if the proceedings for divorce are commenced in the county where the respondent has been a bona fide resident at least one whole year immediately previous to the filing of such proceedings, in such ease, residence of the libellant within the county or State for any period shall not be required. The libellant shall be a competent witness to prove his or her residence.” Act of May 2, 1929, P.L. 1237, §16, as amended, 23 P.S. §16 (Supp. 1974).

The case having been dismissed on preliminary objections in the nature of a demurrer, aU properly pleaded facts are taken as admitted for the purpose of testing the sufficiency of the complaint. Balsbugh v. Rowland, 447 Pa. 423 , 290 A.2d 85 (1972); Engel v. Parkway Co., 439 Pa. 559 , 266 A.2d 685 (1970); Fawcett v. Monongahela R. Co., 391 Pa. 134 , 137 A.2d 768 (1958). The complaint alleges that, after moving to Illinois, the parties returned to Pennsylvania, to reside permanently therein. This adequately alleges that both are domiciliaries of Pennsylvania. Coulter Estate, 406 Pa. 402, 406 , 178 A.2d 742, 745 (1962); Publicker Estate, 385 Pa. 403, 405 , 123 A.2d 655, 658 (1956).

See, e.g., Iowa Code §598.6 (1971), quoted in Sosna v. Iowa, 360 F. Supp. 1182 , 1183 n.1 (N.D. Iowa 1973) (durational residence requirement inapplicable where respondent is resident of state and personally served).

There may be other means by which the state might decrease even further the burden imposed upon the exercise of the right to travel. If so, then a statute which cures only the defects noted in this opinion would still be invalid, for the compelling interest standard permits the state to use only the least burdensome means available. It is unnecessary to the decision of this case to consider whether any alternatives even less burdensome than those mentioned herein are available.

Ante at n.21. The enormous numbers of cases there mentioned are largely irrelevant to the issue here presented. The statute here involved virtually assures that none of them involve persons resident in this Commonwealth for less than one year. Only in those cases where neither party meets the one year residence *534 test will any additional scrutiny be required. The number of such cases is purely speculative but surely only a small fraction of the total number of divorces.

Footnotes omitted. See also Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 645 , 94 S. Ct. 791, 798-99 (1974) (presumption that teacher unfit to teach during last five months of pregnancy); Vlandis v. Kline, 412 U.S. 441, 451 , 93 S. Ct. 2230, 2236 (1973) (presumption of non-residence based on student status since time of arrival); United States Dept. of Agriculture v. Murry, 413 U.S. 508, 513-14 , 93 S. Ct. 2832, 2835-36 (1973) (presumption of non-indigency based on prior year’s claimed dependency for income tax purposes); Bell v. Burson, 402 U.S. 535, 540-41 , 91 S. Ct. 1586, 1590 (1971) (presumption that uninsured motorist involved in auto accident is subject to liability for that accident).