brief for appellee — Zablocki v. Redhail

Supreme Court brief1978

Ask Donna

What actually matters in this document.

Text

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-879

THOMAS E. ZABLOCKI, Milwaukee County Clerk,

individually, in his official capacity, and on behalf

of all persons similarly situated,

Appellants,

vs.

ROGER G. REDHAIL, individually and on behalf

of all persons similarly situated,

Appellees.

— — —

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF WISCONSIN

BRIEF OF APPELLEES

ROBERT H. BLONDIS

PATRICIA NELSON

ATTORNEYS FOR APPELLEES

P.O. ADDRESS:

LEGAL ACTION OF WISCONSIN, INC.

211 West Kilbourn Avenue

Milwaukee, Wisconsin 53203

(414) 278-7722

INDEX

—

Page

Sr 2

I o¢@ @) {2? #5 3

SUMMARY OF ARGUMENT ........-ccccces 5

tT. cnt danveenndesnééeeeusecuoses 9

ie THIS IS NOT A PROPER CASE

1 ü 9

II. THE CLASSIFICATION CREATED

BY SEC. 245. 10 VIOLATES PLAIN-

TIF FS' RIGHTS TO EQUAL PRO-

re ocneeeeecace 15

III.

IV.

SECTION 245. 10 DEPRIVES PLAIN-

TIFFS OF LIBERTY WITHOUT DUE

PROCESS OF LAW ....ccccsccccces 44

THE DISTRICT COURT WAS CORRECT

IN HOLDING THAT ABSENT DEFEND-

ANT CLASS MEMBERS NEED NOT

BE GIVEN NOTICE ggg 46

CONC LUUSION 2. wc ccccccccccccceces 54

TABLE OF AUTHORITIES

CASES CITED

American Farm Lines v. Bla « Ball

Freight Service, 397 U.S. 532 (1970) ..... 82

Baker v. Carr,

e od oc tea dendeacdudie 8, 46

Barber v. Barber,

21 How. 582, 16 L. Ed. 226

SE 66666666 . „ 28

Beberfall v. Beberfall,

54 Wis. 2d 329, 195 N. W. 2d 625

. eee ese ee ese ee eee eee ess 37, 38

Boddie v. Connecticut,

ILA 6, 13, 21, 22, 26

Bullock v. Carter,

I besedcecetoceoséece 96% OS

Burford v. Sun Oil Company,

319 U.S. 315 (1943)......... — 6, 11, 12, 13

Ex Parte Burrus,

J 8 8 fo rrr . 25

Califano v. Goldfarb,

U.S. , 977 G. 1021 (1977)...... 41

City of Kenosha v. Dosemagen,

54 Wis. 2d 269, 195 N. W. 2d 462

0 51

Cleveland Board of Education v. La Fleur,

414 U.S. 632 (1974) „„ „„ © © „„ „„ eee eee 8, 22, 44

Colorado River Water Conservation

District v. United States, 424 U.S. 800

. eecceces coco BEE

Page

Craig v. Boren,

U.S. „ 97S. Ct. 451

28 29

Douglas v. People of California,

SUS See FED CESS) cccccecocecconses 24, 34

Eisen v. Carlisle & Jacquelin,

417 U.S. 156 (1974). 8,47,48

England v. Louisiana State Board of

Medical Examiners, 375 U.S. 411

618 11, 13

Examining Board of Engineers, Architects

* Surveyors v. Otero, 426 U.S. 572

—197//ʒi ccc eee reece rcesseeseeses 10

Griswold v. Connecticut,

Pe eas ee EEE db césecoccoec 20, 26,44

Hanna v. Plumer,

380 U.S. 460 (196) 48

Hansberry v. Lee,

338 U.S. 32 % „„ 8,48

Harper v. Virginia State Board of

Elections, 383 U.S. 663 (1963) ....... 24

Harris County Commissioners Court v.

Moore, 420 U.S. 77 (97) 9

Holt v. Shelton,

341 F. Supp. 821 (M.D. Tenn. 1972) 23

Hostetter v. Idlewild Bon Voyage Liguor

Corporation, 377 U.S. 324 (1964) 10

Huffman v. Pursue, Ltd.,

420 U.S. % (1%) „ 7, 1, 18

In re Parson's Trust,

56 Wis. 2d 613, 203 N. W. 2d 40

(1973) „ fe fe „% „% „% „% % „„ „ „ „ „1 „ % „ „% „% % „% „% % „% „% „% „ „% „ „ „ „% 42

Juidice v. Vail,

U.S. „ 45 U. S. L. W. 4269

[dec d. March 22, 1977) .......... . q 1I4, 15

Kramer v. Union Free School District,

— ⁵ w ͤꝛ ²˙ ! Ot

Kutzik v. Kutzik,

21 Wis. 2d 442, 124 N. W. 2d 581

1963)

55222 ‚ᷣ U 7755555 4 „ 36

Lake Carriers Association v.

Mac Mullan, 406 U.S. 498 (1972) 11, 16

Lehman Brothers v. Schein,

416 U.S. 386 (1974).

„ „ „ „ „ „„ „% „% „% „% „ „ „ „ „6 „% 10

Leipzig v. Pallamolla,

418 F. Supp. 1073 (E. D. Wis.

n bees ess sees eee eee GK

Loving v. Virginia,

388 U.S. 1 (1967) ..... ä — . 7,21, 26, 44

Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307 (1976) 23333333 18

Page

Mathews v. Eldridge,

424 U.S. 319 (1976(0ͥeꝶũ eee eee eee Ue

Meyer v. Nebraska,

262 U.S. 390 (1923))))33j 219,44

NLRB v. Monsanto Chemical Co,,

205 F. 2d 763 (8th Cir. 1953))) :: eens 52

O'Connor v. O'Connor,

48 Wis. 2d 535, 180 N. W. 2d 735

(1970) ..... ee ae 00000 37

Ohio ex rel. Popovici v. Agler,

280 U.S. 379 (1930). .-cccccccccsccesecee 25

O'Neill v. Dent,

364 F. Supp. 565 (E. D. N. V. 197 23

O'Shea v. Littleton,

414 U. 8. 488 (1974)...-+++- cocccccccccce G8

Paul v. Davis,

424 U.S. 693 (197(7ʒ̃) 1 6 6600 0 . 19,45

Pederson v. Burton,

400 F. Supp. 960 (D. D.C. 1976) . 29

Perry v. Sindermann,

408 U.S. 593 (1972) y „7% „„ 37

Planned Parenthood of Cent. Mo. v.

Danforth, 428 U.S. 52 (1970ù⸗hĩ· 26

Procunier v. Martinez,

416 U.S. 396 (1977/6 18

Page

Railroad Commission of Texas v.

Pullman, 312 U.S. 496 (1943) 9 6, 10, 11

Reetz v. Bozanich,

Dee Gel Ge CPPEEe ceceseceooseseess 6,12,13

Reynolds v. United States,

a Gea Gee EEE cecevedsecceces< 966000 28

Roe v. Wade,

410 U.S. 113 (1973)..... 7,8, 19, 28, 39, 44,45

Royster Guano Co. X. Virginia,

253 U. S. 412 (1920).....

ener „% „% % % „% „% „% „% % „„ „ „ „„ 40

San Antonio lad. School District v.

Rodriguez, 411 U.S. 164973) 7, 24, 40

Shapiro v. Thompson, 394 U.S. 618

SEU ee cecesosces ä 2 7, 18, 27, 28, 33, 39

Shelton v. Tucker,

364 U.S. 479 (1960) 5660000 eee &

Skinner v. Oklahoma,

ene ee eee eee SHB

Sosna v. Iowa,

419 U. S. 393 (1973)) 6,7, 13,27, 47

Spindel v. Spindel,

283 F. Supp. 797 (E. D. N. v. 1968) soe OF

vii

Page

Stanley v. IIlinois,

405 U.S. 645 (1% 7,26

State of Wisconsin v. J.C. Penney Co.,

311 U.S. 435 16% „ „„ 33

State v. Mueller,

44 Wis. 2d 387, 171 N. W. 2d 414

eee ese 060 560000 . 38,42

Tate v. Short,

401 U.S. 395 (1971 ä 24

United States v. Kras,

409 U.S. 434 (149733) 500 0 060000 21,22

United States v. Jackson,

390 U.S. 570 (196) ä 33

Weinberger x. Weisenfeld,

420 U.S. 636 (197) 2 41

Welker v. Welker,

24 Wis. 2d 570, 129 N. W. 2d 134

PP rrrrrrrrrire rie e 41

Williams v. Illinois,

399 U.S. 235 (10% 24

Wooley v. Maynard,

U.S. , 45 U.S. L. W. 4379

(dec'd. April 20, 1977).....2eeeeeee- 7,15

Younger v. Harris,

401 U.S. 37 (19771777 eeeeee . 14,35

viii

Page

Zwickler v. Koota,

! ( („0 11. 14, 16

FEDERAL STATUTES AND RULES

28 U. S. C

.es „0 52

„eee see 55 „0 4, 50

42 U. S. C.

secs. 602 et seq. (supp. 1976) . 36

Federal Rules of Civil Procedure,

.. eee 4, 3, 8, 9, 47, 48, 49, 51, 52, 53

STATE STATUTES

WIS. STAT.

Section 52.01 (1975)......... 500000 eee 41

LL „56 66 640 5 35

L 35

Beeties %ö06 cccccccccesesees „00 922% «=6CU®

. 83 .ccccccces TYTTTITiTTiTTy 35, 36

Section 52.38 ...... „56 6 66 66 „ „ „60 ccccecse 35

DOD Tae SD cccccvevswsedscescssovesses 35

Page

Section 245. 05 (197ù½ùũ1⁵ 3,51

Section 245. 06 ... k ⁰ „46 28

Section 245. oũ „„ 28

Section 245. 10 (1950: 30, 31

Section 245. 10 (1961) ....--- „„%ỹi 31, 32

Section 245. 10 (19699ũ¶h ᷑ Ui „ 32

Section 245.30 (1) (0 (1975) ))1 999 17

Section 247. 2ũ31033 j „%„%ĩn 34

Section 247.24 (1) (asss? 36

Section 247. 245 (1977)))0Mſꝙ/tiõU ::: 42

Section 247. :ꝶ7 „„ 35

Section 247. 2houůõ „ „„„„„„„tẽ 34

Section 247. z322m23222i2ũ·%0 36

Section 247. 37 (1) (fas „„ä. „6 2 coe

Section 295.oů))jůʒut: „„ 35

MISCELLANEOUS

Page

Advisory Committee Note,

, ¶ TK. .. 47, 48, 53

Benett, Eisen v. Carlisle and Jacquelin:

Supreme Court Calls for Revamping of

Class Action Strategy, 1974 Wis. L.

se -w ]%ᷣ ‚ KK. ]³o˙» 0 006008 48

Burger, C. J., Chief Justice Burger Issues

Learend Report, 62 A. B. A. J. 189

,,,, 53

Burger, C. J., Annual Report on the State

of the Judiciary, 62 A. B. A. J. 443

r ⁰˙ •ũĩ 53

Frankel, Some Preliminary Observations

Concerning Rule 23, 43 F. R. D. 39

FF .. 48,49, 52

Miller, Problems of Giving Notice in

Class Actions, 58 F. R. D. 313

c ˙˙ Cc 48-49

Moore's Federal Practice, Vol. 3B..... ae 49

Note, The Importance of Being Adequate:

Due Process Requirements in Class

Actions Under Rule 23, 123 U. Pa. I.

, ̃ R ͤͤ 50 48

Public Health Statistics - Wisconsin,

7. Sra pi aa 41

Statistical Portrait of Women in the

United States. 1975 U. S. Dept. of

Commerce, Bureau of Census (Current

Population Reports: Special Studies:

Series P'23; No. 58). Table 7-4, p. 30....

Wisconsin Assembly Bill 151A - 1959.......

Wisconsin Legislative Council - General

Report, Vol. 5, De «stineeesesesencessue

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-879

THOMAS E. ZABLOCKI, Milwaukee County Clerk,

individually, in his official capacity, and on behalf

of all persons similarly situated,

Appellants,

vs.

ROGER G. REDHAIL, individually and on behalf

of all persons similarly situated,

Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF WISCONSIN

BRIEF OF APPELLEES

II.

III.

QUESTIONS PRESENTED

Should the Court have refused to exercise juris-

diction in this case under the abstention doctrine”?

Does WIS. STAT. sec. 245, 10 violate the right

of plaintiffs to equal protection of the law?

Does WIS. STAT. sec. 245.10 violate the right

of plaintiffs to due process of law?

Was the District Court correct in holding that

notice was not required for absent defendant

class members?

STATEMENT OF THE CASE

This is a direct appeal from the final judgment

and decree entered on August 31, 1976, by order

of a three-judge District Court, declaring WIS.

STAT. sec. 245. 10(1), (4) and (5) (1973) uncon-

stitutional and enjoining its enforcement.

On May 12, 1972, appellee Roger G. Redhail

was adjudged by the Milwaukee County Court, Civil

Division, to be the father of a child born out of

wedlock. He was ordered to pay $109 per month

as support until the child reaches eighteen years

of age, plus court costs. (A. 21).

At the time of his admission of paternity, Red-

hail was a minor and a high school student. From

May, 1972, until August, 1974, he was unemployed,

indigent, and unable to pay any support. He there-

fore made no payments and as of December 24,

1974, there was an arrearage in excess of $3,732.

(A. 21).

Redhail's child has been a public charge since

birth and receives welfare benefits in excess of

$109 per month. Therefore, the child would be a

public charge even if Redhail were current in his

court ordered support payments. (A. 21).

On September 27, 1974, Redhail filed an

application for a marriage license with appellant

Thomas E. Zablocki. Zablocki is the County Clerk

of Milwaukee County and therefore is responsible

for the issuance of marriage licenses in Milwaukee

County. WIS STAT. sec. 245.05 (1975). On

September 30, 1974, Redhail was denied a marriage

license by an agent of Zablocki solely because he

did not have a court order granting him permission

to marry as required by sec. 245. 10(1). (A. 22).

Under sec. 245. 10(1), persons who have minor

issue not in their custody which they have been

ordered to support may not be issued a marriage

license unless a court grants them permission to

marry. Permission to marry must be withheld

unless the marriage license applicant submits

proof that she or he has complied with the support

order and the issue is not likely to become a public

charge. (A. 22). WIS. STAT. sec. 245. 10(1),

(4) and (5) are set forth in the Brief of Appellant,

3-5.

Plaintiff Redhail was unable to submit such

proof and therefore could not obtain permission

to marry. Redhail did not petition the state court

for permission to marry. (A. 22).

The complaint in this action was filed Decem-

ber 24, 1974. The three-judge court was convened

pursuant to 28 U.S.C. 2284 on January 6, 1975.

Notice was given to the Governor and the Attorney

General as required by 28 U.S.C. 2284 (2), and

the defendant subsequently filed his answer.

(A. 16-19).

On February 18, 1975, plaintiff filed a motion

seeking to have the action maintained as a class

action on behalf of all persons subject to the pro-

visions of sec. 245.10, and against a class con-

sisting of all county clerks in the State of Wisconsin.

On February 20, 1975, the action was certified as

a class action pursuant to Rule 23(b) (2), Federal

Rules of Civil Procedure, on behalf of the class of

plaintiffs. The class was defined as:

"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

sec. 245. 10(1), WIS. STATS." (A. 19-20).

The order of February 20, 1975, also estab-

lished a briefing schedule on the issue of the

certification of the defendant class. (A. 20).

Plaintiffs filed a brief on the issue. (A. 2). Neither

defendant Zablocki nor the Wisconsin Attorney

General did so.

A Statement of Uncontested Facts and briefs

on the merits were filed, and oral argument was

held on June 23, 1975. (A. 2).

On August 31, 1976, the action was certified

by the District Court as a class action against the

defendant class of county clerks pursuant to Rule

23(b) (2). The defendant class was defined as

follows:

"All county clerks within the State of Wisconsin,

all of whom are required by sec. 245. 10(1),

WIS. STATS., to refuse to issue marriage

licenses to the class of plaintiffs without court

order." (A. 2-3).

On the same date the District Court issued its

decision declaring sec. 245. 10(1), (4), and (5),

unconstitutional under the Equal Protection Clause

of the Fourteenth Amendment to the United States

Constitution, and enjoining its enforcement by

defendant county clerks. Defendant Zablocki was

ordered to mail a copy of the opinion, order and

judgment to all members of the class he represents.

Judgment was entered and copies thereof were

mailed to the parties. (A. 3).

SUMMARY OF ARGUMENT

I, This action falls within none of the three

categories of cases which could make the exercise

of the doctrine of abstention appropriate.

The state statute in question is not ambiguous

but is clear in its meaning and effect. Therefore,

the doctrine announced in Railroad Commission of

Texas v. Pullman, 312 U.S. 496 (1941) is not

applicable.

The type of abstention which in a limited num-

ber of cases has been applied t#promote comity

between the state and federal governments is in-

appropriate for application here. The Court's

decisions in Burford v. Sun Oil Company, 319 U.S.

315 (1943), and Reetz v. Bozanich, 397 U.S. 82

(1970), are inapposite. The exercise of jurisdiction

by the District Court caused little confusion or dis-

ruption in the operation of Wisconsin's statutory

scheme for the regulation of domestic relations.

There are no complex or ambiguous issues of fact

or law present. Wisconsin has no interest in domes-

tic relations which is not shared by other states.

The fact that the statute in question involves domes-

tic relations did not warrant abstention by the Dis-

trict Court. See, e.g. Sosna v. Iowa, 419 U. 8.

— (1975); Boddie v. Connecticut, 401 U.S. 371

1971).

a, ra:

The doctrine enunciated by this Court in

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)

does not apply because there were no state court

proceedings commenced. Wooley v. Maynard,

U.S. , 45 U. S. L. W. 4379 (dec'd. April

20, 1977).

Il. The legislative classification created by sec.

245. 10 must be subjected to strict judicial scrutiny

because it substantially abridges the right to marry,

a right which is included within the right of privacy,

Roe v. Wade, 410 U.S. 113 (1974); Loving v.

Virginia, 388 U.S. 1 (1967). In addition, sec.

245. 10 results in many plaintiffs being completely

denied the right to marry because of their poverty.

This wealth discrimination provides an additional

justification for applying the strict scrutiny standard

under the test articulated in San Antonio Ind, School

District v. Rodriguez, 411 U.S. 1 (1973).

The strict scrutiny test provides appropriate

protection for the competing interests of Wisconsin

and the individual. In other cases involving domes-

tic relations the Court has carefully considered

these competing interests. See, e.g. Sosna v.

Iowa, 419 U. S. 393 (1975); Stanley v. Illinois,

405 U. S. 645 (1972).

The purpose of sec. 245. 10, clear from the

face of the statute itself, is to prevent the marriage

of poor members of the plaintiff class. The denial

of a constitutional right is not a legitimate state

purpose. Shapiro v. Thompson, 394 U.S. 618

(1969). Other arguable statutory purposes are en-

forcing the parental duty to support, assuring that

children do not become public charges and requiring

counseling of plaintiffs and their intended spouses.

But the State has numerous effective ways of accom-

plishing these purposes which do not abridge the

right to marry. Section 245. 10 is not even ration-

ally related to these purposes because the only re-

sult of the operation of the statute is to grant or

deny permission to marry. Therefore, sec. 245. 10

violates the Equal Protection Clause,

III. Because the right of privacy is a liberty pro-

tected by the Due Process Clause of the Fourteenth

Amendment, Roe v. Wade, 410 U.S. 113 (1974),

many decisions protecting the right of privacy from

unnecessary interference by the state have relied

on due process grounds. E. g. Cleveland Board

of Education v. LaFleur, 414 U. S. 632 (1974).

Because all possible permissable objectives of

sec. 245.10 can be accomplished without infringing

upon the right to marry, sec. 245. 10 deprives

plaintiffs of liberty without due process of law.

IV. The representative defendant requests that

this Court reverse the judgment of the District

Court because the unnamed defendants were not

given formal notice of the proceedings. No case

or controversy exists under Article III of the Con-

stitution between the named defendant and the plain-

tiffs because the named defendant received notice

and participated in the entire litigation. He there-

fore has no "personal stake in the outcome. Baker

v. Carr, 396 U.S. 186 (1962).

Neither Fed, R. Civ. P. 23 nor the Due Pro-

cess Clause mandate that notice be given to all

members of every 23(b) (2) class. Eisen v. Carlisle

and Jacquelin, 417 U.S. 156 (1974); Hansberry v.

Lee, 311 U.S. 32 (1940).

An analysis of the facts present in this case

leads to the conclusion that notice to all unnamed

defendant class members was not required under

either the Due Process Clause or Rule 23. The

interest of all absent class members in the action

was identical to that of the representative party.

The absent class members were adequately repre-

sented. In implementing the statute, each class

member was acting as an agent of the State. There-

fore representation by the Wisconsin Attorney

General was most appropriate.

Because of the cohesiveness and unity existent

in this class of defendants and the effectiveness of

the representation provided, notice to the unnamed

members was not required.

ARGUMENT

I. THIS IS NOT A PROPER CASE FOR

ABSTENTION.

There are three general categories of cases

in which the equitable doctrine of abstention may

be exercised by the federal district courts. Colo-

rado River Water Conservation District v. United

States, 424 U.S. 813-815 (1976). If a case falls

within one of the three categories the court must

then carefully consider the facts and apply the doc-

trine only in special circumstances. Harris County

Commissioners Court v. Moore, 420 U.S. 77, 83

(1975). The case at bar falls within none of the

categories which would make application of the

doctrine appropriate.

A. The statute in question is not ambiguous.

In Railroad Commission of Texas v. Pullman,

312 U.S. 496 (1941), the Court held that when a

federal constitutional claim is premised on an

ambiguous provision of state law the federal court

should abstain in order to avoid both needless

litigation of federal constitutional issues and federal

court error in the interpretation of state law ques-

tions. Id. at 501. The doctrine and its rationale

remain substantially unchanged. Examining Board

of Engineers, Architects and Surveyors v. Otero,

426 U.S. 572 (1976). Although counsel opposed

apparently argue that this Court should direct the

District Court to abstain under the Pullman doctrine

(Brief of Appellants, 16) they point to no ambiguity

in sec. 245. 10, the statute in question.! In fact,

in the Statement of Uncontested Facts at 22-23

which was submitted to the District Court, defend-

ants stipulated to the clear meaning of the statute.

They reiterate the statute's clear meaning and the

effect of its operation on plaintiffs in their brief,

at 16-17. Defendants have pointed to no ambiguity

Defendants did not raise the Pullman absten-

tion issue in the District Court. In previous deci-

sions upholding the refusal of district courts to

abstain, this Court has considered a party's fail-

ure to request the district court to apply the doc-

trine. Hostetter v. Idlewild Bon Voyage Liquor

Corporation, 377 U.S. 324, 329 (1964); accord,

Lehman Brothers v. Schein, 416 U.S. 386, 393

(1974) (Rehnquist, J. concurring).

because there is none in the statute. 5 Therefore,

the Pullman doctrine does not apply.

B. Considerations of comity do not weigh in

favor of abstention.

In a limited number of cases the Court has

ruled that abstention is appropriate to promote

comity betwee. e federal and various state govern-

ments. Colorado River Water Conservation Dis-

trict v. U.S., 424 U.S. at 814-816. Defendants argue

that the present case is one in which the comity

type of abstention is appropriate, citing Burford

—

Zwith due respect, plaintiffs submit that per-

haps defendants misunderstand the Pullman absten-

tion doctrine, for they argue at p. 17 of their brief

that sec. 245.10 is constitutionally uncertain",

rather than uncertain in its meaning. There is of

course no requirement that federal courts abstain

from ruling on the federal constitutionality of a

state statute which is clear in meaning simply

because the statute is constitutionally uncertain.

Lake Carriers' Association v. MacMullan, 406

U.S. 498, 511 (1972). Indeed this Court has noted

on many occasions that under our dual system of

government the federal judiciary is the primary

arbiter of federal constitutional questions. E. g.

England v. Louisiana State Board of Medical Ex-

aminers, 375 U.S. 411, 415-416 (1964); Zwickler

v. Koota, 389 U.S. 241, 245-252 (1967). Plaintiffs

welcome defendants' candid admission that sec.

245. 10 is constitutionally uncertain.

> Defendants failed to raise the comity- based

abstention issue in the District Court. See plain-

tiffs' brief, p.10, f. n. 1.

1 ?

v. Sun Oil Company, 319 U.S. 315 (1943), and

Reetz v. Bozanich, 397 U.S. 82 (1970). Each of

these cases is easily distinguishable from the one

at bar.

In Burford a district court in Texas was asked

to exercise its diversity jurisdiction to rule on the

reasonableness of a Texas administrative agency's

determination concerning the rights of private

litigants in oil and gas fields. This Court held that

the District Court should have abstained because

of Texas' peculiar interest in its natural resources,

the complex legal and factual issues involved, the

District Court's comparative lack of expertise con-

cerning those issues, the fact that Texas had

established its own administrative/judicial system

to resolve the problems, and the disruptive effect

inconsistent federal court decisions would have on

the state policy and economy of Texas. Burford,

319 U.S. at 327-334. In Reetz, plaintiffs sued in

the Alaska federal District Court alleging that an

Alaska statute deprived them of rights under both

the Alaska and Federal Constitutions. In ruling

that abstention was appropriate, this Court noted

that Alaska had a unique concern for its fish re-

sources, that there was an apparent conflict be-

tween the state constitution and the statutes in

question, both of which related to fishing rights,

and that resolution of the conflict between the pro-

visions of state law could obviate the need to re-

solve the federal constitutional question. Reetz,

397 U.S. at 84-87.

None of the factors the Court considered in

Burford and Reetz weigh in favor of abstention in

this case. Here there are no complex issues of

fact or state law. The only issue of complexity

concerns the constitutionality of the unambiguous

state statute. This militates against abstention,

for the federal courts have the primary role in de-

ciding federal constitutional questions. England v.

Louisiana State Board of Medical Examiners, 375

U.S. at 415-416. Unlike the situation in Burford,

the statute in question here is severable from

Wisconsin's comprehensive statutory scheme con-

cerning domestic relations and there is no adminis-

trative system for its enforcement. Therefore,

the exercise of jurisdiction by the District Court

left undisturbed the remainder of Wisconsin's

statutory scheme for domestic relations.

The only point which defendants have advanced

in support of their contention that the District

Court should have abstained in the interest of

comity is the fact that the statute in question is a

part of Wisconsin's regulation of domestic relations.

Wisconsin does have a strong interest in the domes-

tic relations of its citizens. But that interest is not

peculiar to it, as was Alaska's in fishing rights in

Reetz or Texas in oil and gas rights in Burford.

Defendants cite Sosna v. Iowa, 419 U. S. 393

(1975), in support of their argument that the Dis-

trict Court should have abstained in the interest

of comity. On the contrary, Sosna is supportive of

plaintiffs' position. The Court found no fault with

the lower court's exercise of its jurisdiction to

determine the constitutionality of an lowa domes-

tic relations statute. This type of abstention was

not even mentioned by the Court. Neither was the

doctrine mentioned in Boddie v. Connecticut, 401

U.S. 371 (1971), the only other recent decision in

which this Court reviewed a judgment of a lower

federal court concerning the constitutionality of a

state domestic relations statute. Further, plaintiffs

have been unable to find a single circuit or district

court opinion which held the comity-based absten-

tion doctrine a bar to the exercise of its jurisdic-

tion to review the constitutionality of a state statute

solely because the statute concerned domestic rela-

tions.

This Court has frequently noted the harm done

to litigants when district courts delay the exercise

of their jurisdiction under the abstention doctrine.

Zwickler x. Koota, 389 U.S. 241, 251 (1967). The

cost is considerable in terms of money, time and

uncertainty. This suit was started more than

twenty-eight months ago. Until the litigation is

resolved the marital rights and status of the named

plaintiff and the class of persons he represents

will be in doubt. The defendants did not even raise

the question of the applicability of this equitable

doctrine in the lower court. Taking all relevant

factors into consideration, the extraordinary ex-

ception to federal jurisdiction should not be invoked.

C. The Younger-Huffman doctrine is not

applicable.

The Court has ruled that special considerations

of federalism and comity come into play when a

federal district court is asked to intervene in a

pending state court proceeding. Huffman v. Pursue,

Ltd., 420 U.S. 592 (1975); Juidice v. Vail,

— . err.

U. 8s. 45 U.S, L. W. 4269 (dec d. March

22, 1977); Wooley v. Maynard, U. S. ;

45 U.S. L. W. 4379 (dec'd. April 20, 1977).

Defendants have cited Huffman in support of their

argument that the District Court should have

abstained. (Brief of Appellants, 16).* The doc-

trine announced in Younger v. Harris, 401 U.S.

37 (1971), and later held applicable to civil pro-

ceedings in Huffman and Juidice is not applicable

here because no state court proceeding has ever

been commenced. 5

Il. THE CLASSIFICATION CREATED BY SEC.

245.10 VIOLATES PLAINTIFFS' RIGHTS TO

EQUAL PROTECTION OF LAW.

A. Section 245.10 substantially burdens

plaintiffs’ right to marry.

Section 245.10, Wisconsin's "permission to

marry" law, creates two groups of adult, healthy,

competent Wisconsin residents who wish to marry.

One group, the plaintiff class, is composed of

those persons who have minor children not in their

The manner in which defendants framed the

second of the Questions Presented (Brief of Appel-

lants, 6) might lead the Court to believe that the

District Court did not consider the applicability

of Huffman to the case at bar. On the contrary,

this question was briefed and fully considered by

the District Court. (Appendix to Jurisdictional

Statement, 3-5).

presuming that plaintiffs could have brought

an action in state court to raise their federal con-

stitutional claims, this Court has frequently and

recently made clear that even when a state remedy

is available there is no requirement that litigants

custody whom they are under a court-ordered

obligation to support. These persons must obtain

the permission of a court before they can lawfully

marry in Wisconsin or elsewhere. Other persons

need not undergo this procedure.

In order to obtain permission to marry, class

members must file a verified petition with one of

several courts. The person wishing to marry must

give notice of the proceeding to the custodian of the

minor child or children and, if the issue was of

a previous marriage, to the family court commis-

sioners of the county where the divorce was granted

and of the county where permission to marry is

being sought. A full financial disclosure must be

made to the court. Ordinarily a hearing is held at

which both parties to the intended marriage must

appear. The class member must prove compliance

with the prior support order and must also prove

that the child or children are not now and are not

likely to become public charges. If the class mem-

ber can prove both elements, permission to marry

— 2 granted; it not, permission must be with-

eld.

The statute is enforced in several ways.

Wisconsin county clerks may not issue a marriage

license to class members unless they have obtained

a court order granting permission to marry. 7

Class members who wish to marry outside the

State of Wisconsin must first obtain the permission

(footnote 5 cont'd)

go first to state court before they can raise con-

stitutional issues in federal court. Lake Carriers

Association v. MacMullan, 406 U.S. at 510;

Zwickler v. Koota, 389 U.S. at 248.

WIS. STAT, sec. 245. 10(1) (1975)

"WIS. STAT. sec. 245. 10(1) (1975)

of a Wisconsin court or the marriage will be void. 8

In addition, class members who marry without per-

mission are subject to criminal penalties. 9

It is plain that the classification created by

sec. 245.10 substantially burdens the right of plain-

tiff class members to marry. All must endure the

delay, expense and uncertainty of the statutory pro-

cedure as well as meet the requirement of full

financial disclosure. Many, such as Roger Redhail,

are unable to marry anywhere as long as they re-

main residents of the State of Wisconsin because

they are indigent or have limited income. If Red-

hail were to petition for permission to marry, per-

mission would be denied because, due to his in-

digency, he has been unable to satisfy the support

obligation ordered in the pateraity_action. Further-

more, even if he had fully complied with the prior

support order or could somehow pay the arrearage

due, permission to marry would still be denied

because his child receives welfare benefits in ex-

cess of the $109 per month support obligation and

therefore would remain a public charge.

The permission to marry statute restricts the

rights of others besides plaintiffs. Men or women

who want to marry a member of the plaintiff class

are subject to the same burden as plaintiffs them-

selves. They must generally participate in the

statutorily required procedure and suffer the delay

8wis- STAT. sec. 245. 40 (4), (5) (1975)

wis. STAT. sec. 245, 30(1)(f) (1975)

and uncertainty it entails. If permission to marry

is denied, they are deprived of their right to marry

as completely as are plaintiffs.

B. Strict scrutiny is the proper test for

determining whether the classification

created by sec. 245. 10 denies plaintiffs

equal protection.

This Court's equal protection analysis requires

that a legislative classification which interferes

with the exercise of a fundamental right or discrim-

inates against a suspect class be subjected to

strict judicial scrutiny. Massachusetts Board of

Retirement v. Murgia, 427 U.S. 307, 312-313

(1976); Shapiro v. Thornpson, 394 U.S. 618, 634

(1969). The legislative classification created by

the permission to marry law interferes with the

fundamental right to marry of both piaintiff class

members and the people who wish to marry them.

Additionally, the statute presents the type of wealth

discrimination which this Court has held must be

strictly scrutinized.

1. The right to marry is a fundamental right.

In decisions spanning over fifty years, this

Court has recognized that the right to marry is a

fundamental right of citizens, encompassed by and

perhaps basic to the right of personal privacy

guaranteed by the United States Constitution.

The right of privacy is not explicitly guaranteed

by the Constitution. Yet this Court has repeatedly

held that certain zones of privacy do exist under the

orie analysis is similar to the Court's anal-

ysis of First Amendment issues in Procunier v.

Martinez, 416 U.S. 396 (1974).

Constitution. See Roe v. Wade, 410 U.S. 113,

152-153 (1973) and cases cited therein. The

right of privacy is now recognized as "founded in

the Fourteenth Amendment's concept of personal

liberty and restrictions upon state action“. Id.

at 153.

One facet of this right of privacy is the right

of freedom of choice in family matters. Citizens

have a right to be free from undue state inter-

ference in their decisions on whether and whom

to marry, whether to have children, and how their

children should be raised and educated. Paul v.

Davis, 424 U.S. 693, 713 (1976).

Plaintiffs submit that the right to marry is the

most basic of the privacy rights. In our society,

marriage is regarded as the foundation of the

family.

In a long line of decisions, this Court has em-

phasized that marriage is a fundamental right in a

free society. In 1923, the Court held that:

Without doubt, [liberty] denotes not merely

freedom from bodily restraint but also the

right of the individual to contract, to engage

in any of the common occupations of life, to

acquire useful knowledge, to marry, establish

a home and bring up children, to worship God

according to the dictates of his own conscience,

and generally to enjoy those privileges long

recognized at common law as essential to the

orderly pursuit of happiness by free men."

Meyer v. Nebraska, 262 U.S. 390, 399-400

(1923). [emphasis supplied].

20 21

In 1942, the Court held that an Oklahoma In Loving v. Virginia, 388 U.S. 1 (1967), the

statute allowing sterilization of "habitual criminals" Court considered the constitutionality of Virginia's

was unconstitutional as violative of the Equal Pro- miscegenation statutes, which restricted the right

tection Clause of the Fourteenth Amendment to the of the individual to marry the person of his or her

United States Constitution. Skinner v. Oklahoma, choice. In addition to ruling that the statutes violated

316 U.S. 535 (1942). The Court subjected the the Equal Protection Clause, the Court held that

they deprived the Lovings of liberty without due pro-

statutory classification to strict scrutiny because:

cess of law in that:

We are dealing here with legislation which

involves one of the basic rights of men. Mar- The freedom to marry has long been recognized

riage and precreation are fundamental to the as one of the vital personal rights essential to

very existence of the race. 316 U.S, at 541. the orderly pursuit of happiness by free men,

Marriage is one of the 'basic civil rights of

The inclusion of the marital relationship among man fundamental to our very existence and

fundamental rights was again noted in Griswold v. survival, To deny this fundamental freedom

Connecticut, 381 U. S. 479 (1965). In that case a on so unsupportable a basis as the racial classi-

statute forbidding the use of contraceptives was fications embodied in these statutes, clas sifi-

held invalid as a violation of the right to marital cations so directly subversive of the principle

privacy. Mr. Justice Douglas, writing for the of equality at the heart of the Fourteenth Amend -

majority, stated: ment, is surely to deprive all the State's citizens

of liberty without due process of law. The

We deal here with a right of privacy older Fourteenth Amendment requires that the free-

than the Bill of Rights. . Marriage is a dom of choice to marry not be restricted by

coming together for better or for worse, hope- invidious racial discriminations. Under our

fully enduring, and intimate to the degree of Constitution, the freedom to marry or not

being sacred. . . [I]t is an association for as marry a person of another race resides with

noble a purpose as any involved in our prior the individual and cannot be infringed by the

decisions. 381 U.S. at 486. State. 388 U.S. at 12. (cites omitted).

Goldberg, J. concurring wrote: The decisions in Boddie v. Connecticut, 401

U.S. 371 (1971) and United States v. Kras, 409

The entire fabric of the Constitution and the U.S. 434 (1973) provide further support to plain-

purposes that clearly underlie its specific tiffs' position.

guarantees demonstrate that the rights to

marital privacy and to marry and raise a fam- In Boddie, plaintiffs maintained that state

ily are of similar order and magnitude as the statutes which prevented indigents from getting a

fundamental rights specifically protected. divorce without paying filing fees was unconstitu-

381 U.S. at 496. tional. The Court agreed. Citing Skinner v.

Oklahoma and Loving v. Virginia, the Court noted

that the state has monopolized the means for legally

dissolving the marital relationship, and the individ-

ual is unable to free himself. . from the con-

straints of legal obligations that go with marriage,

and more fundamentally the prohibition against re-

marriage, without involving the state's judicial

machinery." 401 U.S, at 376.

In United States v. Kras, the issue was whether

the United States could constitutionally deny a dis-

charge in bankruptcy to indigents who were unable

to pay the filing fee. Boddie was distinguished as

follows:

The denial of access to the judicial forum in

Boddie touched directly, as has been noted,

on the marital relationship and on the asso-

ciational interests that surround ...e establish-

ment and dissolution of that relationship. On

many occasions we have recognized the funda-

mental importance of these interests under our

Constitution. The Boddie appellants’ inability

to dissolve their marriages seriously impaired

their freedom to pursue their protected asso-

ciational activities. 409 U. S. at 444-445,

(cites omitted).

In Cleveland Board of Education v. LaFleur,

414 U.S. 632 (1974), the Court again held that

"Freedom of personal choice in matters of marriage

and family life is one of the liberties protected by

the Due Process Clause of the Fourteenth Amend-

ment. Id. at 639-640.

These decisions make it clear that the right to

marry is a fundamental right. 11

2. Section 245.10 creates a suspect classifica-

tion based on wealth.

Section 245.10 imposes a substantial burden on

all plaintiff class members and the people they wish

to marry. For poor and low-income persons how-

ever, the burden is much more severe. If Roger

Redhail had petitioned for permission to marry,

permission would have been denied since, because

of indigency, he had not been able to comply with

the support order made in the paternity action.

Even if he had complied fully or was able somehow

to pay the arrearage, permission would still have

been denied because his child receives welfare bene-

fits in excess of the court-ordered support. 12

Plaintiffs in Redhail's position, those who are too

poor to pay existing arrearages or enough support

II Lower courts which have decided the issue

have held unanimously that any interference with

the right to marry must be strictly scrutinized.

Pederson v. Burton, 400 F.Supp. 960, 962 (D. D.C.

1975); O'Neill v. Dent, 364 F. Supp. 565, 568-569

(E. D. N. Y. 1973); Holt ». Shelton, 341 F. Supp.

821, 822-832 (M. D. Tenn. 1972).

12 The plaintiff in the companion case, Leipzig

V.! Pallamolla, 418 F.Supp. 1073 (E. D. Wis. 1976),

had complied with his support obligation but was

denied permission to marry because his four minor

children received AFDC benefits.

to assure that their children are not and are not

likely to become public charges, are barred from

marrying. This wealth discrimination inherent in

the statute provides an additional ground for apply-

ing the standard of strict scrutiny.

Legislation which affects the poor more se-

verely than the affluent is common; this unequal

effect is unavoidable and in itself does not invoke

the strict scrutiny test. San Antonio Ind. School

District v. Rodriguez, 411 U.S. 1, 29 (1973). How-

ever, classifications based on wealth have been

strictly scrutinized and overturned in the area of

voting and elections, Bullock v. Carter, 405 U.S.

134 (1972); Harper v. Virginia State Board of

Elections, 383 U.S. 663 (1963); Kramer v. Union

Free School District, 395 U.S. 621 (1969); criminal

procedure, e.g. Douglas v. California, 372 U.S.

353 (1963); and incarceration, Tate v. Short, 401

U.S. 395 (1971); Williams v. Illinois, 399 U.S.

235 (1970).

In San Antonio Ind. School District v. Rodriguez,

this Court reviewed its prior decisions and articu-

lated the distinguishing characteristics of wealth

discrimination which must be strictly scrutinized.

The individuals or groups of individuals who

constituted the class discriminated against

in our prior cases shared two distinguishing

characteristics: because of their impecunity

they were completely unable to pay for some

desired benefit, and as a consequence, they

sustained an absolute deprivation of a meaning-

ful opportunity to enjoy that benefit. 411 U.S.

at 20.

These characteristics are present with respect

to Roger Redhail and many other class members

who are too poor either to satisfy their support

obligations or to pay enough support to assure that

their children will not be public charges. Because

of their poverty, Wisconsin denies those class

members the right to marry and lawfully have and

raise children together. Therefore the statute

does more than unequally affect the poor; it abso-

lutely deprives them of the right to enjoy the

fundamentally important benefits of marriage and

family life.

3. Classifications affecting the right to marry

should not be excepted from the strict

scrutiny test.

Defendants concede that the right to marry is

a fundamental right. (Jurisdictional Statement, 7).

They argue, however, that marriage requirements

should be excepted from the strict scrutiny test

normally employed when a fundamental right is

abridged. They ask this Court to apply the rational

relationship test because domestic relations are

traditionally within the control of the states. This

argument is without merit. 13

13There is a line of cases which holds, often

in sweeping language, that federal courts do not

have diversity jurisdiction to grant divorces or

alimony or to determine questions of child custody.

See e.g. Barber v. Barber, 21 How. 582, 584, 16

L. Ed. 226 (1859); Ex Parte Burrus, 136 U.S. 586

(1890); Ohio ex rel. Popoviciv. Agler, 280 U.S.

379 (1930). This rule, which was based upon the

historical limits of English equity jurisdiction, see

Spindel v. Spindel, 283 F.Supp. 797 (E. D. N.Y.

1968), has no relevance to the case at bar which

seeks protection of federal constitutional rights.

In our federal system, many areas of law

are within the province of the states. Yet the

states power to regulate is limited by the United

States Constitution. Indeed, the purpose of the

Bill of Rights and the Fourteenth Amendment is to

protect the interests of the individual or group of

individuals from overzealous regulation and control

by the government.

There is no question that the states have a

vital interest in the domestic relations of their

citizens. There is also no question that the right

to marry is of fundamental importance to the in-

dividual and is one of the liberties protected by

the Fourteenth Amendment. Where fundamental

individual rights are abridged, the Court carefully

considers the interests of both the individual and

the state. The state may abridge fundamental rights

but only if necessary to accomplish a compelling

state purpose. Defendants' contention that a legis-

lative classification which infringes upon the right

to marry must be upheld unless arbitrary or un-

related to the achievement of a legitimate state

purpose ignores the individual interests involved

in marriage.

In numerous cases involving regulation of the

broad area of domestic relations, this Court has

carefully considered and weighed the competing

interests of the state and the individual. Planned

Parenthood of Cent. Mo. v. Danforth, 428 U.S.

52, 66-72 (1976); Stanley v. Illinois, 405 U.S.

645 (1972); Boddie v. Connecticut, 401 U.S. 371

(1971); Loving v. Virginia, 388 U.S. 1 (1967);

Griswold v. Connecticut, 381 U.S. 479 (1965). In

all of these cases, the Court held that the state's

interest in regulating domestic relations did not

justify the restriction of individual rights.

Sosna v. lowa, 419 U.S. 393 (1975), which in-

volved a challenge to lowa's one year durational

residency requirement for divorce, reached a

different result, but again only after a careful con-

sideration of the interests of the state and of the

individual. While the Court did not expressly

state the equal protection test it applied in uphold-

ing the Iowa statute, it noted the effect of the statute

on persons who had recently exercised their right

to travel was different than that of the statutes con-

sidered in Shapiro v. Thompson, in that persons

were not irretrievably foreclosed from obtaining

at least some part of what they sought. 419 U.S.

at 406. It also noted that the statute promoted

several very substantial state interests. Id. at

406-409. These factors - the relatively insub-

stantial burden wpon individual rights weighed

against the very substantial state interests - under-

lie the Court's decision in Sosna. The Court did

not apply the more lenient equal protection test. 14

Defendants argue that all marriage require-

ments would be struck down if the strict scrutiny

test is applied. (Brief of Appellants 14). This

is simply untrue. Reasonable age and competency

requirements are necessary to assure that people

in fact consent to enter into the marriage contract.

I4purthermore, Sosna involved the right to

seek immediate dissolution of marriage, not the

right to marry. While the two areas are indirectly

related they are not identical. All states closely

regulate who may seek a divorce from its courts,

the procedure required in a divorce action and for

what causes a divorce may be granted. Forty-

eight of the fifty states have some sort of dura-

tional residency requirement. 419 U.S. at 404.

Reasonable fee and flexible solemnization require-

ments are not a substantial burden on the right

to marry and therefore do not amount to constitu-

tional violations. Health requirements such as

Wisconsin's which are narrowly drawn so that only

those persons with active, communicable venereal

disease may not marry, WIS. STAT. sec. 245. 06-

07 (1975), could certainly withstand strict scrutiny.

Defendants' argument that state regulation against

polygamy could not meet the strict equal protection

standard is frivolous. Marriage has always been

defined in this society as the union of one man and

one woman, See Reynolds v. United States, 98

U.S. 145 (1878).

C. Section 245.10 cannot withstand strict

scrutiny.

The strict scrutiny test is demanding; the state

bears the burden of showing that the statutory classi-

fication promotes a legitimate and compelling state

interest and that the statute is narrowly drawn to

express only the legitimate state interests at stake."

Roe v. Wade, 410 U. S. at 155; Shapiro v. Thompson,

394 U. S. at 634.

The first step in the analysis is to determine

what interests Wisconsin seeks to promote by the

permission to marry law. Defendants argued in

the District Court that sec. 245.10 promotes two

state interests: providing counseling to prospec-

tive marriage partners regarding the pre-existing

support obligation, and protecting the welfare of

children, Appendix to Jurisdictional Statement 15

(hereafter A. J. S.). In this Court, they argue

that It should be apparent that the principal govern-

mental interest is in the welfare of children, that

provision for such children should be accommodated

before new marital obligations are undertaken."

(Brief of Appellants, 12),

This Court has left open the question of whether

it should accept the statement of a state's Assistant

Attorney Genera! as to the objectives of the legisla-

ture or whether it must determine if the litigant

simply is selecting a convenient, but false, post-

hoc rationalization.'' Craig v. Boren, _U.S.

„ 97 S. Ct. 451, 458 n. 7 (1976). In view of

the shifting and rather vague statutory objectives

claimed by the defendants in this case, plaintiffs

submit that the Court should carefully examine the

statute itself and the little available legislative

history to determine the legislative purpose.

There is some evidence that the intention of

the Committee which drafted sec. 245, 10 was to

provide counseling. The forerunner of the present

statute was introduced into the Wisconsin Assembly

in 1959 by the Wisconsin Legislative Council as part

of Bill No. 151A, a comprehensive revision of Wis-

consin's Family Code. Section 245. 10 as introduced

was a simple provision which required that persons

with court-ordered support obligations to minor

issue of a prior marriage obtain court approval be-

fore obtaining a marriage license. 15 The notes of

the drafting committee explained the purpose of the

provision as follows:

15" Approval of Judge required in certain cases.

When it appears that either applicant has minor

issue of a prior marriage not in his custody and

which he is under obligation to support by court

order or judgment, no license shall be issued

without the approval of a judge of a court hav-

ing divorce jurisdiction in the County of appli-

cat ion. Bill No, 151A, Sec. 245. 10.

‘Several recommendations made by the commit-

tee are based on the principle that the process

of getting married should be in accord with the

seriousness of marriage. This principle is

reflected in the following proposal: .. . (3)

Divorced persons who have support obligations

to children of a former marriage must obtain

judicial consent to remarry. This provides

an opportunity to counsel such person partic-

ularly when he has failed in fulfilling present

obligations. His intended partner will also

be aware of these obligations before the mar-

riage. The provision, of course, is not de-

signed to preclude the contemplated marriage

but merely assure that there is an awareness

of the situation. Wisconsin Legislative

Council - General Report, Vol. 5, 1959.

However, WIS. STAT. sec. 245.10 (1959) as

enacted into law by the Wisconsin Legislature was

substantially amended. Besides providing a pro-

cedure for obtaining court permission to marry,

it required the applicant to prove either compli-

ance with the previous support order or good cause

why the permission should be granted, and made

any order withholding permission to marry an

appealable order. !

16 "245.10 Permission of judge required in

certain cases. When it appears that either

applicant has minor issue of a prior marriage

not in his custody and which he is under obliga-

tion to support by court order or judgment, no

license shall be issued without the written per-

mission of a judge of a court having divorce

jurisdiction in the county of application. The

judge shall, within 5 days after any such per-

mission is sought, either grant the same or

In 1961, the statute was again amended. The

requirement that the marriage license applicant

prove that the children are not and are not likely

to become public charges was added and the court's

discretion to — the marriage for good cause

was deleted. !

(footnote 16 cont'd)

order a court hearing in the matter to allow

said applicant to furnish proof of his compli-

ance with such prior court obligation. The

judge may allow the admission of other per-

tinent evidence. Upon the hearing, if said

applicant furnishes such proof, or shows good

cause why a marriage license should be issued

to him in the absence thereof, the court shall

grant such permission; otherwise permission

for a license shall be ordered withheld until

such proof is furnished or good cause shown,

but any court order withholding such permis-

sion shall be deemed an appealable order."

WIS. STAT. sec. 245. 10 (1959).

"245.10 Permission of court required for cer-

tain marriages. When either applicant has

minor issue of a prior marriage not in his

custody and which he is under obligation to

support by court order or judgment, no license

shall be issued without the order of a court

having divorce jurisdiction in the county of

application. The court, within 5 days after

such permission is sought by verified petition

in a special proceeding, shall either grant

such order or direct a court hearing to be held

in the matter to allow said applicant to submit

proof of his compliance with such prior court

obligation. No such order shall be granted, or

In 1969, the statute was further amended to

require parents of out of wedlock children as well

as divorced parents to obtain court permission to

marry.

The Committee notes indicate that the purpose

of the statute as introduced was to provide manda-

tory counseling, but there are no materials to

establish or shed light upon the legislative purpose

of sec. 245.10 as enacted or as amended. However,

(footnote 17 cont'd)

hearing held, unless both applicants for such

license appear, and unless the person, agency,

institution, welfare department or other entity

having the legal or actual custody of such

minor issue is given notice of such proceeding

by personal service of a copy of such petition

at least 5 days prior to the court order or

hearing, unless such appearance or notice has

been waived by the court upon good cause shown.

Upon the hearing, if said applicant submits such

proof and makes a showing that such children

are not and are not likely to become public

charges, the court shall grant such order, a

copy of which shall be filed in any prior di-

vorce action of such applicant in this state

affected thereby; otherwise permission for a

license shall be withheld until such proof is

submitted and showing is made, but any court

order withholding such permission is an appeal-

able order. Any marriage contracted without

compliance with this section, where such com-

pliance is required, shall be void, whether

entered into in this state or elsewhere."' WIS.

STAT. sec. 245.10 (1961).

180ther amendments, not directly relevant to the

issues in this case, were made in 1961, 1965, 1969

and 1971.

plaintiffs submit that the purpose of the statute is

clear from the unambiguous language employed

and from the natural and unavoidable effect of the

statute. State of Wisconsin v. J.C. Penny Co.,

311 U. S. 435, 443-444 (1941). The purpose of

sec. 245.10 is simply to prohibit the marriage of

those persons who are unable to comply with their

prior support obligations or who are unable to pay

enough support to assure that their children are

not and are not likely to become public charges.

The Legislature must be presumed to have intended

what it did in fact accomplish. All that is accom-

plished by sec. 245.10 is the prohibition of marriage

by those who are financially unable to meet the

standards of the statute.

Plaintiffs do not dispute that sec. 245.10 is

an effective means of preventing many Wisconsin

residents from lawfully marrying. The statutory

procedure acts as a net; all plaintiff class mem-

bers and their intended spouses must pass through

it so that the State can identify and prohibit the

marriage of those whom it has decided may not

marry. However, the purpose of denying to cer-

tain indigent persons the right to marry is nota

legitimate state purpose.

The right to marry is a well-established, con-

stitutionally protected right. If a law has no other

purpose than to deny a constitutional right, it is

"patently unconstitutional. '' Shapiro v. Thompson,

394 U.S. at 631; United States v. Jackson, 390

U.S. 570, 581 (1968). If the purpose of sec.

245. 10 is to deprive a class of citizens of the

right to decide when and whom to marry, it must

fail.

Furthermore, if the purpose of the law is to

deny the right to marry to poor members of the

plaintiff class, then the purpose of the law is to

discriminate against a class of poor persons.

The States, of course, are prohibited by the Equal

Protection Clause from discriminating between

the 'rich' and 'poor' as such in the formulation and

application of their laws. Douglas v. People of

State of California, 372 U.S. 353, 361 (1963)

(Clark, J. dissenting) (emphasis in original).

Because the statute focuses upon the support

obligation, it might be argued that the purpose of

the statute is to protect the welfare of children by

enforcing the parental obligation to support. But

this argument is rebutted by the terms of the statute

itself, The only authority given to the court in a

permission to marry proceeding is authority to

grant or withhold permission to marry. The court

may not actively enforce the support obligation in

any way. Ifthe legislature had intended sec.

245.10 as a support enforcement tool, it would

have given the court the power to in fact enforce

support,

Assuming for argument that the purpose of

sec. 245.10 is to enforce the parental duty of

support and assuming that support enforcement is a

compelling state interest, sec. 245.10 is not

necessary to the accomplishment of this purpose.

A brief survey of Wisconsin statutes establishes

that the state has many potent means of enforcing

a parent's obligation to support his or her children.

If the child or children in question are issue of a

former marriage, WIS. STAT. sec. 247.232 and

sec. 245.265 (1975), give the judge and family court

commissioner authority to order the parent to

execute a wage assignment to assure that future

support payments will be made regularly and that

arrears will be paid. WIS. STAT. sec. 247, 37

(1) (a) (1975), requires the judgment of divorce

to include a provision warning that disobedience

of the court's order is punishable under WIS,

STAT. sec. 295.03 (1975), by commitment to

the county jail or House of Correction until the

judgment is complied with. WIS. STAT. sec.

295. 03 (1975), contains a provision excepting con-

tempt actions in divorce or legal separation cases

from the usual requirement of proof of personal

demand of payment and refusal to pay. Where the

order of support results from an adjudication in

a paternity proceeding pursuant to Chapter 52 of

the Wisconsin Statutes, the court's powers to en-

force its support orders are similar, in that the

court has the power to order the parent to execute

a wage assignment, WIS. STAT. sec. 52.21(2)

(1975), or to commit the parent to the county jail,

WIS. STAT. sec. 52.40 (1975). In both divorce

and paternity actions, tie court may at any time

modify the judgment to increase the support order

as the circumstances of the parent allow. WIS.

STATS. sec. 247.25, sec. 52. 38 (1975).

In addition to these civil remedies, the State

may proceed against a non-supporting parent

criminally under WIS, STAT. sec. 52.05 (1975),

which makes abandonment of a minor child, whether

born in or out of wedlock, a felony, or under WIS,

STAT. sec. 52.055 (1975), which makes failure

to support a minor child a misdemeanor. In either

criminal action, the court may, in lieu of penalty,

place the defendant on probation on condition that

he or she pay a certain sum as support. If the

defendant on probation fails to support as ordered,

the court may then proceed on the original charge,

enforce the suspended sentence, or punish the

defendant for contempt and commit him to the

county jail under WIS. STAT. sec. 52. 08 (1975),

the work release law.

Finally, Congress has recently acted to pro-

vide substantial assistance to the states and to the

custodians of children in collecting parental support.

Besides providing financial assistance to states in

locating parents and enforcing support, Congress

has authorized various federal agencies to assist

states and custodians in locating parents and has

authorized the federal courts to hear certain

support enforcement actions. 42 U.S.C. sections

602 et seg. (Supp. 1976).

It might be argued that the knowledge that per-

mission to marry can be denied encourages parents

to comnly with the court ordered support obligation.

However, considering the other support enforce-

ment tools available in Wisconsin, such "encourage-

ment can hardly be considered necessary. It

might also be argued that sec. 245. 10 encourages

non-custodial parents to agree to pay more support

than the court had ordered so that their children

would not be public charges and permission to

marry will be granted. However, parents in Red-

hail's situation are rarely able to pay more support. 19

19 is noteworthy that all of Wisconsin's

methods of determining and enforcing the support

obligation take into account the income and assets

of the non-custodial parent. E.g. WIS. STATS.

247. 24(1) (a); sec. 247. 32; sec. 52. 21(2) (1975);

Kutzik v. Kutzik, 2] Wis. 2d 442, 124 N. W. 2d

581, 585 (1963). The amount of support ordered

generally represents the court's considered

opinion as to what the individual is reasonably

Further, those persons who arguably could pay

more support are forced into making a choice;

they must either give up their constitutional right

to marry or give up their statutory right to have

their support obligation determined by a court in

the statutory procedure based on the statutory

factors. The state may not, under the United

States Constitution, require an individual to make

such a choice. See, e.g. Perry v. Sindermann,

408 U.S. 593 (1972).

Therefore, if sec. 245. 10 was intended as an

indirect method of support enforcement, the State

clearly has numerous effective ways to assure that

all parents will support their children to the best

of their ability without abridging the right to marry.

Since the statute requires that the parent prove

that the children are not and are not likely to be-

come public charges in order to obtain permission,

it might be argued that the purpose of the statute

is to prevent children from becoming public charges.

This argument is somewhat supported by dictum in

the Wisconsin Supreme Court decision of Beberfall

(footnote 19 cont'd)

able to pay. Yet, if that amount is not sufficient

to keep the children off welfare, permission to

marry will be denied. An indigent support-owing

parent cannot be held in contempt of court for

failure to pay support because this failure would

not be “willful. "' O'Connor v. O'Connor, 48 Wis.

2d 535, 180 N. W. 2d 735 (1970), yet sec. 245.10

contains no analogous safeguard.

v. Beberfall, 54 Wis. 2d 229, 195 N. W. 2d 625,

629 (1972), 20

The policy behind this statute is to make cer-

tain that the children of the first marriage are

not to become public charges."

The interest in preventing children from be-

coming public charges is similar to the interest

in enforcing the parental duty to support. It is

also clearly related to Wisconsin's interest in

sa¥ing welfare costs. Plaintiffs have demonstrated

that sec. 245.10 is not intended as a support en-

forcement tool and that, even if it were intended to

enforce support, it is not necessary to the accom-

plishment of that purpose. The argument that pre-

venting children from becoming public charges

justifies sec. 245.10 shares these defects. Further-

more, it is well-settled that the saving of welfare

costs is not a compelling state interest and will

not justify the infringement on plaintiffs' funda-

mental right to marry.

"We recognize that a state has a valid interest

in the fiscal integrity of its programs. It may

legitimately attempt to limit its expenditures,

20The only other Wisconsin Supreme Court

statement of the legislative purpose of sec. 245. 0

is found in State v. Mueller, 44 Wis. 2d 387, 171

N. W. 2d 414 (1969):

"| the interest Wisconsin seeks to protect

is a legitimate and substantial protectable in-

terest both as to the protection of the welfare

of its minors and the marriage relationship

of its residents. . ." 171 N. W. 2d at 418.

This statement of purpose is too vague to be

helpful.

whether for public assistance, education, or

any other program. But a state may not

accomplish such a purpose by invidious dis-

tinctions between classes of its citizens

The saving of welfare costs cannot justify

an otherwise invidious classification.

Shapiro v. Thompson, 394 U.S. at 633.

Finally, it might be argued, based upon the

notes of the original drafting committee, that the

purpose of sec. 245.10 is to require counseling

regarding the importance of meeting support obliga-

tions. 2 However, the statute itself has nothing

to do with counseling.

Even if the purpose of sec. 245. lO were to

provide counseling, it could not justify the statutory

classification. As the District Court noted,

counseling is not a compelling state interest and

the statute is not "narrowly drawn to express only

the legitimate state interests at stake. Roe v.

Wade, 410 U.S. at 155.

It is clear that the State of Wisconsin can

achieve all of the possible permissible objectives

of sec. 245.10 without interfering with the funda-

mental right to marry. It is important to note that

while every other state presumably has the same

interests as the State of Wisconsin in the marital

relationship and the support of children, plaintiffs

have been unable to find any other state with the

same statutory requirement. Apparently, the

legisiatures of the other forty-nine states have

not found such a restriction to be necessary to

promote any legitimate state interest.

=| Defendants no longer raise this argument

in justification of this statute.

D. Section 245.10 does not rationally further

any legitimate state interest.

The statutory classification created by sec.

245. 10 does not rationally further any legitimate,

articulated state purpose and therefore cannot

withstand even the less stringent rational relation-

ship“ standard of equal protection analysis. San

Antonio Ind. School District v. Rodriguez, 411

U.S. at 17; Royster Guano Co. v. Virginia, 253

U.S. 412, 415 (1920). Defendants argue that

Wisconsin's interest in protecting children provides

more than a reasonable basis for the statutory

classification. (Brief of Appellants, 15). But

nowhere do they explain just what the relationship

is between the broad interest in the protection of

children and the permission to marry law.

Plaintiffs have illustrated that the purpose of

the statute is to prevent the marriage of those

persons who have been unable to comply with exist-

ing support orders or who are unable to pay enough

support to keep their children from becoming public

charges. A law which has as its purpose the denial

of the right to marry to indigent persons is doubly

unconstitutional; the denial of constitutional rights

is not a legitimate state purpose, and states may

not formulate and aoply their laws to discriminate

against the poor.

It might be argued that sec. 245.10 protects

children by prohibiting poor parents from marrying,

thereby preventing them from ta ing on new fi-

nancial obligations which would interfere with their

ability to comply with existing obligations. The

statute was first enacted in 1959 when, in the great

majority of divorces, the mother was awarded

custody of the children and the father was orderd

to pay support. E. g. Welker v. Welker, 24 Wis.

2d 570, 129 N. W. 2d 134 (1964). Perhaps the

legislature assumed that the support-obli gat ed

father would by marriage necessarily become

responsible for the financial support of his new

wife and therefore be less able to provide for his

children. However, this is precisely the sort of

legislative assumption which the Court has held

to be an insufficient basis for statutory classifica-

tions. E.g., Califano v. Goldfarb, U.S. ;

97 S.Ct. 1021, 1025-1027 (1977); Weinberger v.

Weisenfeld, 420 U.S. 636, 643-646 (1975). It is

true that, by marriage, a father takes on the legal

obligation to support his new spouse. However,

the duty of spousal support extends to both partners

in the marriage. WIS. STAT. sec. 52.01 (1975).

In fact, the likelihood of a work ng spouse“ makes

it reasonable to believe that many plaintiffs would

actually improve their financial situation through

marriage and thus be better able to support their

children.

While the marrying parent and new spouse may

proceed to have children, many couples, of course,

do not. And many people proceed to have children

without the benefit of marriage. According to

Public Health Statistics - Wisconsin 1974, six

2210 1975, 44. 4% of all married women were

working outside the home. See, A Statistical

trait of W i ited 1975 U.S.

Department of Commerce, Bureau of Census

(Current population reports: Special Studies:

Series P’23; no. 58). Table 7-4, p. 30.

thousand five hundred ninety-four children were

born to unmarried parents in Wisconsin in that

year. Since a parent has an obligation to support

an out of wedlock child, it is clear that sec. 245.10

does not prevent people from incurring new support

obligations.

Furthermore, many people who are required

to obtain court permission to marry attempt to

marry in other states without permission. 23

While these marriages are declared void by sec.

245.10 (5), the duty of spousal support exists un-

less and until the marriage is annulled and may

continue after any judgment of annulment. WIS.

STAT. sec. 247.245 (1975).

Plaintiffs have argued that sec. 245.10 is not

intended as a means of enforcing the parental duty

to support. But assuming for argument that the

statute is intended to promote the welfare of

children by enforcing the parental duty of support

and preventing children from becoming public

charges, it is ineffective. Those parents who can

demonstrate that they have fully complied with the

prior support order and whose children are not

and are not likely to become public charges are

subjected to the delay of the court proceedings as

well as the requirement that they disclose their

financial resources to the court before they are

allowed to marry. This delay and disclosure,

while burdensome to the individual, accomplishes

nothing for the chiidren or for the State.

“>See In re Parson's Trust, 56 Wis. 2d 613,

203 N. W. 2d 40 (1973); State x. Mueller, 44 Wis.

2d 387, 171 N.W. 2d 414 (1969).

—— 2

Those parents who cannot make the requisite

showing are totally denied the right to marry for

as long as they continue to be residents of Wiscon-

sin. This accomplishes nothing towards promoting

the interest in support enforcement. The children

of persons who are denied permission to marry,

whether because the parent is behind in support

payments or because the children are public charges,

are simply unaffected by the procedure. If per-

mission to marry is denied, the back support will

still be owing; the child will still receive public

assistance. If the State or the child's custodian

believes that the support-obligated parent might

be able to pay the arrearages or be able to pay an

increased support order, resort must still be had

to one of the support enforcement tools available

under Wisconsin lw.

Plaintiffs have contended that despite the notes

of the Drafting Committee, the terms of sec.

245. 10 preclude any argument that its purpose is

to provide mandatory counseling to prospective

marriage partners. If this were the purpose, the

statute would be completely irrational. Assuming

for argument that the State has a legitimate interest

in providing counseling before marriage to persons

with pre-existing support obligations, sec. 245. 10

does not require or even provide that plaintiffs sub-

mit to counseling nor does it require the court

hearing the petition for permission to marry to

counsel the petitioner regarding his or her support

obligations. The statutory requirements are limited

to an examination of the petitioner's compliance

with the support order and of his or her ability to

provide enough support to prevent the children

from becoming public charges. Indeed, the statute

allows the court to waive the hearing if it is satis-

fied from court records, family support records,

and the petitioner's financial disclosure that the

statutory requirements are met. The hearing

offers the only opportunity for counseling the

marriage license applicants. Therefore, if the

purpose of the statute were to provide counseling,

allowing waiver of the hearing would defeat the

purpose of the statute.

III. SECTION 245.10 DEPRIVES PLAINTIFFS OF

LIBERTY WITHOUT DUE PROCESS OF LAW.

The right to independence and freedom of

choice in matters of marriage and family life is

one of the liberties protected by the Due Process

Clause of the Fourteenth Amendment to the United

States Constitution. Cleveland Board of Education

v. LaFleur, 414 U.S. 632, 639 (1974); Roe v. Wade,

410 U.S. at 153. The District Court found that the

statutory classification created by sec. 245.10

impermissibly abridges plaintiffs' right to marry

in violation of the Equal Protection Clause. Plain-

tiffs submit that sec. 245. 10 also abridges their

right to marry in violation of the Due Process

Clause.

Many of this Court's decisions invalidating

statutes or regulations which interfered with the

right of privacy have relied on due process grounds.

Cleveland Board of Education v. LaFleur; Roe v.

Wade; Loving v. Virginia, 388 U.S. 1 (1967);

Griswold v. Connecticut, 381 U.S. 479 (1965);

Meyer v. Nebraska, 262 U.S. 390 (1923). Some

matters are so personal, so basic to our society

and our society's concept of liberty that due pro-

cess prohibits unnecessary state interference with

individual choice.

The cases cited above establish that the right

of privacy encompasses the decision to marry as

well as matters involving contraception, procrea-

tion, family relationships and child rearing and

education. Paul v. Davis, 424 U.S. 693, 712-713

(1976). These cases also establis! that states may

abridge the right of privacy only where necessary

to promote a compelling state interest, Roe v.

Wade, 410 U.S. at 155, (citing Shapiro v. Thompson,

394 U.S. at 634), and then only to the extent nec-

essary to achieve that interest. Shelton v. Tucker,

364 U.S. 479 (1960). This test is the same as the

strict scrutiny" equal protection test.

Plaintiffs have demonstrated that sec. 245.10

substantially abridges not only their right to marry,

but also the right of their intended marriage part-

ners. A statute which requires an otherwise

qualified adult to seek the permission of the court

to marry, which mandates that a person prove to

the court that he or she is financially able to marry

and which often denies the right to marry because

of poverty, surely invades the zone of privacy.

Plaintiffs have also dernonstrated that the per-

mission to marry law is not necessary to promote

any compelling state interest because the state

has means of achieving each possible legitimate

objective of sec. 245. 10 without abridging the

right to marry. For these reasons, sec. 245. 10

is invalid as a violation of the Due Process Clause

of the Fourteenth Amendment.

IV. THE DISTRICT COURT WAS CORRECT IN

HOLDING THAT ABSENT DEFENDANT CLASS

MEMBERS NEED NOT BE GIVEN NOTICE,

A. No case or controversy exists between

the representative defendant and the

plaintiffs on this issue.

In addressing the class action issue, plaintiffs

first question whether the requisite case or con-

troversy under Article III of the Constitution exists

between the plaintiffs and the named defendant.

The named defendant by counsel and the Wisconsin

Attorney General participated in this litigation

from beginning to end. They now ask this Court

to reverse the District Court because parties

other than themselves did not receive notice and

were presumably thereby somehow harmed. But

the named defendant has absolutely no personal

stake in the outcome" of this issue. Baker v.

Carr, 369U.S. 186, 204 (1962). The judgment

of the District Court, if it is correct, will be

binding upon him. Further, none of the unnamed

defendants have, either in the District Court or

in this Court, alleged their rights were violated

or that any harm was done to them. Nor has the

representative 29 pointed to any harm done

to those unnamed. 21 This Court therefore is being

2413 its pre-trial order of February 20, 1975,

the District Court invited counsel for the named

defendant and the Wisconsin Attorney General to

submit in writing any objections to the case being

maintained as a class action with respect to the

defendants. Neither counsel for the named defend-

ant nor the Wisconsin Attorney Ceneral, who

participated in the pre-trial conference, filed an

asked to rule on a claim based on "speculation and

conjecture. O'Shea v. Littleton, 414 U.S. 488,

497 (1974). If any of the unnamed class members

take the position that they should not be bound by

the judgment they can raise this argument by

collateral attack. Advisory Committee Note, 39

F. R. D. 73, 106 (1966).

B. Neither the Due Process Clause nor Fed.

R. Civ. P. 230d) required the District

Court to provide notice to the unnamed

defendant class members.

Defendants rely solely on Eisen v. Carlisle

and Jacquelin, 417 U.S. 156 (1974) and Fed. R.

Civ. P. 23(c) (2) as authority for the argument

that Rule 23 and due process require that notice

be given to the absent members of the class in

this case. 28 (Brief of Appellants, 18-19). De-

fendants' reliance is misplaced because the

(footnote 24 cont'd)

objection. (A. 19-20). Instead, counsel opposed

waited six months to voice their concern regarding

lack of notice at the oral argument before the three-

judge panel on the merits of the case. Even then

they did not indicate the reason for their objection.

(A. J. S. 5).

Defendants arguments sweep broadly and

could be interpreted to advance the proposition that

due process requires notice to all class members

in every class action.(Brief of Appellants, 17-19).

However, in light of the uniqueness of this position,

the brevity of defendants’ argument, the lack of

authority cited and the recent authority contra,

plaintiffs presume that defendants’ due process

claim is limited to the facts of this case. Sosna

v. lowa, 419 U.S. 393, 397 9.4 (1975). See also,

present action is a Rule 23(b) (2) class action. 26

The mandatory notice provision of Rule 23 (c) (2)

applies only to 23(b) (3) actions. The decision in

Eisen is specifically limited to (b) (3) actions and

did not discuss notice requirements in (b) (2) cases.

417 U.S. at 178 n. 14.

The provision of notice to class members in

(b) (2) actions is governed by 230d) and, of course,

the Due Process Clause. Neither due process nor

Rule 23 require that notice be given to each mem-

ber of every (b)(2) class. Hansberry v. Lee, 311

U.S. 32, 42-44 (1940); Note, The Importance of

Being Adequate: Due Process Requirements in

Class Actions Under Rule 23, 123 U. Pa. L. Rev.

1217, 1226-1227 (1975); Frankel, Some Preliminary

Observations Concerning Civil Rule 23, 43 F. R. D.

39, 45 (1967); Benett, Eisen v. Carlisle and

Jacquelin: Supreme Court Calls for Revamping

of Class Action Strategy, 1974 Wis. L. Rev. 801,

805; Miller, Problems of Giving Notice in Class

(footnote 25 cont'd)

Hanna v. Plumer, 380 U.S. 460, 471 (1965), hold-

ing that there is a strong presumption as to the con-

stitutionalitv of the Federal Rules of Civil Pro-

cedure.

26 fendants have not appealed the District

Court's finding that they constitute an appropriate

class under Fed. R. Civ. P. 23(a) and (b) (2).

Three of the prerequisites of 23(a), commonality,

typicality and adequacy of representation, anc che

requirement of 23(b) (2) that the party opposed has

acted on grounds applicable to all class members,

provide considerable protection of the interests

of unnamed parties. See Advisory Committee's

Note, 39 F. R. D. 73, 100, 102 (1966).

Actions, 58 F. R. D. 313, 314-315 (1973); 3B

Moore's Federal Practice, Paragraph 23. 55.

In determining what orders are necessary for

the protection of unnamed members of a particular

(b) (2) class, the court should consider all circum-

stances present in that case. Frankel, Some

Preliminary Observations Concerning Rule 23,

43 F. R. D. at 45-46. A consideration of the facts

in this case inexorably leads to the conclusion

that notice to the unnamed defendants was not re-

quired:

1. The interest of each defendant class mem-

ber in the suit was identical. Each of the seventy-

two counties in the State of Wisconsin has a county

clerk. These clerks comprise the class of defend-

ants in this action. Each is prohibited by sec.

245.10 from issuing a marriage license absent

the court order required by that statute. The only

issue for decision on the merits in the case is

whether each of the members of the class of defend-

ants acted in a constitutionally permissable manner

in refusing to issue a marriage license pursuant to

sec. 245.10. The claim by the plaintiffs against

each defendant is one and the same. No variation

of facts in any individual case is significant.

2. The absent defendant class members were

adequately represented. As the District Court

noted in its opinion, the Milwaukee County Corpora-

tion Counsel, which represented the named defend-

ant, is experienced in conducting federal litigation.

(A. J. S. 5-6). In addition, Attorney Joseph

Salituro, Assistant Corporation Counsel for Kenosha

County, Wisconsin, appeared and participated in

defense of the Kenosha County Clerk in Leipzig v.

Pallamolila, 418 F.Supp. 1073 (E. D. Wis. 1976),

a companion case to the case at bar which raised

identical issues and was consolidated with the

present case by order of the District Court. (A. 19).

The Attorney General of the State of Wisconsin

also took an active part in the defense of the named

and unnamed defendant class members. (A. J. S.

6). The Wisconsin Attorney General is statutorily

charged with the duty of representing the people

of Wisconsin in certain civil and criminal cases.

WIS. STAT. sec. 165.25, (1975). 27 Therefore,

defendants were represented by counsel from three

separate government offices, one of which has

statewide responsibility to defend the laws of

Wisconsin.

The District Court found at the conclusion of

the case that the unnamed defendants had been

adequately represented throughout the litigation,

after all pleadings and briefs had been submitted

and oral argument made. (A. J. S. 5-6).

Moreover, counsel opposed have not even

suggested that their representation of the unnamed

class members was less than adequate.

27 The provisions of 28 U. S. C. 2284 which were

in effect at the time of the commencement of this

action required that the Attorney General receive

notice of any action involving the enforcement of

a state statute. Pub. L. 86-507, sec. 1 (19); 74

Stat. 201. The notice requirement was complied

with. The purpose of the provision was obviously

to give state attorneys general an opportunity to

defend the enactments of their legislatures.

The record both below and in this Court is

barren of complaints by unnamed class members

concerning the adequacy of representation, although

each class member received a copy of the judg-

ment. The conclusion is inescapable that the un-

named class members did receive adequate repre-

sentation.

3. The statute in question is one of statewide

applicability and reflects the judgment of the

Wisconsin Legislature on a matter of state policy.

The members of the defendant class have the duty

to implement the statute in question because un-

der Wisconsin law county clerks, and not state

officials, are responsible for the issuance of mar-

riage licenses. WIS. STAT. sec. 245.05 (1975).

There is no local option not to enforce the law.

The county clerks are simply acting as agents of

the State when they refuse to issue marriage li-

censes under sec. 245.10 (1971). That being the

case, representation of them by the Wisconsin

Attorney General is not only adequate but most

appropriate, for the Wisconsin Supreme Court has

held that in Wisconsin, .

"It is the attorney general who should be af-

forded the opportunity to act in a representa-

tive capacity in behalf of the legislature and

the people of the state to uphold the constitu-

tionality of a statute of statewide application.

City of Kenosha v. Dosemagen, 54 Wis. 2d

269, 195 N. W. 2d 462 (1972)

4. Defendant class members would have

gained nothing by receiving notice. Defendants

have not alleged in any of their arguments that

they were prejudiced by the action of the District

Court. They were not free to opt out under Fed.

R. Civ. P. 23 (c) (3), this being a 23 (b) (2) class.

The District Court ruled that they would not be

allowed to intervene. (A. J. S. 9).

The case could not have been compromised without

notice under 23(e). Therefore, defendants had

nothing to gain by notice but the opportunity to

raise arguments in defense of the constitutionality

of the statute which had already been raised by the

three attorneys representing them. One of the

express purposes of the grant of discretion found

in 23 (d) is to give the court authority to limit re-

dundant arguments. See, Frankel, Some Pre-

liminary Observations Concerning Civil Rule 23,

43 F.R.D. at 41-42.

This Court has ruled that lower courts may

handle procedural matters in a manner which will

insure the orderly transaction of business and that

such decisions are not reviewable by the Supreme

Court absent a showing of substantial prejudice.

American Farm Lines v. Black Ball Freight Ser-

vice, 397 U.S. 532, 539 (1970), citing NLRB v.

Monsanto Chemical Co., 205 F.2d 763 (8th Cir.

1953). There is simply no such showing by the

defendants here.

Further, the Court has made clear that in

analyzing whether the requirements of due process

have been satisfied in any decision-making process,

it will consider the fairness of the existing proce-

dures and the probable value of additional safe-

guards against the administrative burden and other

societal costs of requiring further procedural pro-

tections. Mathews x. Eldridge, 424 U.S. 319 (1976).

28were this Court to find that the District

Court was in error in failing to notify unnamed de-

fendants it is still bound to affirm absent a showing

that the lower court's error substantially affected

the rights of the defendants. 28 U.S.C. 2111.

Here, notice to the unnamed class members would

have amounted to nothing more than a substantial

administrative burden on an already overworked

panel of three federal judges. See, Burger, C. J.,

Chief Justice Burger Issues Yearend Report, 62

A. B. A. J. 189 (February, 1976); Burger, C. J.,

Annual Report on the State of the Judiciary, 62

A. B. A. J. 443, 444-445 (April, 1976).

To summarize, it would seem that the Advisory

Committee had the type of class which the defend-

ants constitute in mind when it stated in its com-

ments on Fed. R. Civ. P. 23(d) (2) that: "In the

degree that there is cohesiveness or unity in the

class and the representation is effective, the need

for notice to the class will tend toward a minimum.

Advisory Commiftee's Note, 39 F. R. D. 69, 106

(1966).

Finally, in their brief at 19, counsel opposed

ask this Court to reverse the judgment of the

District Court. Conceding for argument that notice

should have been given to the unnamed defendants,

plaintiffs submit that those parties who appeared

would still be bound by the District Court's judg-

ment and that it would be appropriate for this

Court to vacate and remand only that part of the

lower court's judgment which affects the class

members who did not receive notice.

CONC LUSION

For the foregoing reasons, appellees respect-

fully move this Court to affirm the judgment of the

District Court.

Respectfully submitted,

ROBERT H. BLONDIS

PATRICIA NELSON

Attorneys for Appellees

P. O., ADDRESS:

Legal Action of Wisconsin, Inc.

211 West Kilbourn Avenue

Milwaukee, Wisconsin 53203

(414) 278-7722

May 5, 1977

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.