Amicus Curiae Brief — Perez. v. Campbell

Supreme Court brief1971

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Office-Supreme Court, US.

bec9 on =ILE COP _ FILED

JAN 21 197]

sow F. DAVIS, CLERIC

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1970

No. 5175

ADOLFO and EMMA PEREZ,

Petitioners,

Vv.

DAVID H. CAMPBELL, Superintendent,

Motor Vehicles Division, Arizona Highway

Dept., etc., et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals

ee for the Ninth Circuit

BRIEF OF THE NATIONAL ORGANIZATION

FOR WOMEN AS AMICUS CUR IAE

—

Heather Sigworth

College of Law

University of Illinois

Urbana, Illinois

Attorney for The National Organization

for Women, Amicus Curiae

William D. Browning

Estes, Browning & Zlaket

of Counsel

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No. 5175

Adolfo and Emma Perez,

Petitioners

Vv.

David Campbell, Superintendent,

Motor Vehicle Division, Arizona

Highway Dept., etc., et al.,

Respondents

'.™

_ dl

On Writ of Certiorari to the United

States Court of Appeals for the Ninth

Circuit

fk).

Motion for Leave to File a Brief

Amicus Curiae on Behalf of

Petitioner, Emma Perez, by the

National Organization for

rc Women

se oo ee

Leave is requested by the National Or-

ganization for Women to file a brief amicus

curiae in the above captioned case for the

Following reasons.

Emma Perez, solely by virtue of her

status as wife in a community property

state has been and is deprived of the

valuable right to drive an automobile.

The deprivation of Emma's driving

privileges effects not Emma alone but also

has wide impact as to others similarly

situated.

Because the primary emphasis in the

court below and the primary emphasis here

is on the bankruptcy issue, and Emma's

claim, perforce, is a secondary issue,

it has not had and will not have as tho-

rough an analysis as it merits.

Therefore, the National Organization for

Women respectfully requests this Court to

grant leave to file this brief amicus

curiae,

The consent of all parties herein has

been requested. The petitioners have given

their consent. The respondents have re-

fused their consent.

Respectfully submitted,

Heather Sigworth

College of Law

University of Illinois

Urbana, Illinois

Attorney for the National

Organization for Women

with

INDEX

Page

Statement GF IMEOTOSE. scccscccceses

Constitutional and Statutory

Provisions Involved...........3

Question Presented......eeeeee00+00

NE ae a

Summary of Argument......seee000009

ARGUMENT :

I. The State Should Not

Revoke the Citizen's

Right to Drive With-

out Compelling Reason.....11l

II. This Application of the

Finacia oe me iar sarang

Act is a Bill of Attainder

and a Denial of Due

PEOCEOGs 6 v6 ee Kbnrcvbervter 14

Section ER CAS pares

Section ees ee eee | i

Section as ee a ae

EE a ee 2

III. The Act in its Application

Denies Equal Protection...30

CONCLUSION..... e*eeee errr Tre ee

C°TA TIONS

FAsSre,.

tndercom v. Andereon, 45 arte, 18h,

179 B.A 297 SNe” Mhecheekhaheesanneece sé

Arizona Cent, Crecdi® tnton vu, Halden,

& sete, Ann, 319, 432 PL2q 976 (1967) ...

Rristol wv, Maeer, $5 Arts, 128, QO B24

704 (9940) SCeeereeereeeeeeeeeeeeereneeees

“ity of Phoenix v. Lane, 74 Aviv, 249,

24% PL2d 392 (1953) @eeeeteeeeeeeeeeeeeece

City of Phoeniv v. Stare, 49 Avts, 240,

137 PIA TRY (1943) @eeeeeeeeeeeeeceeeneacee

City of Toledo v, Rernoir. 18 thin St. 2d

4, 247 NF. 2d 749 (1940) @eeeeeeveeeeeecen

Centinertal Cae, Co, v, Phoenty Cemetr,

Ca. 46 Cnt, 2d 492, 208 P24 AN,

99?

57 4.7.2.24 9914 (190548) Seeccccccccecccse 09,2%

Nand=tdon «es, Willtamse, Qn S rr, 11872

FON icacececx $6606064600K0se08e0eeeen<

Aeomate wl) Fickhhwen, an Arts, 7290, 7 P24

PAS €7QA1N Ceres eerree ees seccceces

FernhoAsn 7. State Nene, af Matar

Vebtctag, I Cal. 24 27N, 297 plod 4

79°95

(7Q5N\ COs er eeSeeSeerersescseeeeseegencece 13,99

Fe narte Tindiev, 198 Cal.Ann, 758,

290% P, AZR (1930) Seer eeeereeereesaresece

Pee , Avtignns State Tay Commfn.., 55

Arie, «7, Qe P, 2a 447 11040) @eeereeveenreve

Camwin wv, Condwin, 47 irte, 157, 54

PL 2a 2AR (19%4) ewee "se eC@ereeeeereeeeaeeeee

Tin re Fe-esen anf Yavhar, 194 Aet~-. 70.

*4Q P94 7 11940) OO0% 008008 + GeSbeencs c00

Tr ee OWwintarn at Tapeh dnar, PSY Mare. ean,

47 ue, ant £90978) e@eaeeees -@ere@resere -,-e8e@8@

Frarktin -, FPrankt {e. 7S trite, 151,

253 P,?A 337 (1952) @eeeeeeeenxceeeeeeeessne

Vennedv vw, Kensedy, O23 Arte, 959,

370 PLA AKA (1943) eer eeeeaerenenerseeene

Kester ve Dept. of Public Safety,

349 U.S. 153 (1962) @eeeeeeeeeeeeceeceeoeee

Lauchlin v. Laughlin, 61 Ariz. 6,

143 P.2d 336 (1943) eeeeeeeeeoeeeeeeeeeee@

MacQuarrie v. McLaughlin, 294 F,. Supp.

176 (N.Mass. 1968), aff'd, 394 U.S,

456 (1969) @eeeeeeeeoeoeoeseeeeeeeeeeeeeeeeees

Mortenson v, Knierht, 81 Arie. 325,

305 P, 2d £43 (1956) @eeeeeeeee ev eeeeeeeee8@

Perez ve. Campbell, 471 *.2¢d 619 (1979)

eoccccccccecccccccccces gFel2yt 7 e18,29,25,276,

Porter v. Porter, 191 Ariz. 131, 416

P,2d 5A#G (1966) @eeeeeeoeeoeeeeeeeeeeeeeee@

Reitz v. Mealey, 314 U.S. 33 (1941) .... 18,

Richards v. Warenkros, 14 Ariz. 488,

131 P, 154 (1913) @eeeeeeeeeeeeee eee eeeee

Schecter v. Killingsworth, 93 Ariz. 273,

Zan P, 2d 136 (1963) eeeeeeeeee 2,11,12,33,

Shechan v. Div. of Motor Vehicles, 140

Cal.Apno. 200, 35 P.2d 359 (1934) .cccce 19,

Smith v, Smith, 71 Ariz. 315, 227

P, 2A 214 1951) e@eeeeeeeeeeeeeeeeeeeeeeece

Sullivan wv. Price, 49 Ariz. 19, 43

P.2d 453, 198 ATR, 1156 (1937) cecccccce

Tyson v. Tyson, 61 Ariz. 329,

149 P,2d 674 (1944) @eeeeeeeeeeeeeeseeeeeee

United States v. Brown, 381 U.S. 437

(1965) @eeeeeeeesesceeeseeeeeeeeseeeeeeeee 9,

United States v. Lovett, 328 U.S, 303

(1946) @eeeeeeeeeeeceeeeeeeeeeesoeeeeeeeee 9,

Watson v. Div. of Motor Vehicles, 212

Cal.App. 258, 291 P, 638 (1930) eeecececcce

Yick Wo v, Hopkins, 118 U.S. 3546 (188A) oeee

Constitutional and statutory provisions:

Arizona Revised Statutes Annotated

Section 7R8-1142A Cee eeeececeeeeeseesseeseeees 3,

Section PRe114624 eeeeeeeeeceecsesee 4,8,13,

Section ?8-1163R @eceeeeeccesceeeceseesee 4,

efve

Section 28-1165 CP eecocccerevecescccces 4,25

Section 25-2118 @Ceeccececesececes 5,10,15,27

Section 25-213 eeecccccccccccccccccces 5,15

United States Constitution

Article T, Section 9, Clause 3 @ccccccccces 3

Fourteenth Amendment CeCe eercceccccccecceece 3

Miscellaneous:

The Rill of Attainder Clauses and Lecislative

and Administrative Suppression of

*Subversives,* 67 Colum. L. Rev, 1490

(1967) @eeeeeeeeee CCCCE er eeeeeeecece 26

Comment, The Supreme Court's Bill of

Attainder Doctrine: A Need for Clarification,

54 Calif. Le Rev, 212 (1944) @eeecoceaece 7

L. Timm, A Survey of Fénancial Resnonsithility

Laws and Compensation of Traffic Victims:

A Proposal for Reform, 21 Vand. L. Rev,

1050 (1967-1968) CCCHCCCE EEOC eEEEeeeeses 31

Urhan Mass Transportation Assistance

Act of 1970 CCCP C eC eC eeeereccresecceoess 12

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1970

No. 5175

ADOLFO and EMMA PEREZ,

Petitioners,

DAVID H. CAMPBELL, Superintendent,

Motor Vehicle Division, Arizona Highway

on Dept., etc., et al,

Respondents.

On Writ of Certiorari to the United

States Court of Appeals

for the Ninth Circuit

Pies

BRIEF OF THE NATIONAL ORGANIZATION

FOR WOMEN AS AMICUS CURIAE

STATEMENT OF INTEREST

The National Organization for Women

(N.O.W.) founded in 1966 has 5,000 women

and men members. The organization is

dedicated ere to securing for all

women equal rights with men. N.O.W.

believes that a society cannot call it-

self civilized, that it does damage to

its economy, distorts its social values,

and demeans its system of justice

a2e

when half of its citizens suffer abridge-

ment of their civil rights.

Emma Perez, a petitioner in the instant

case has been deprived of the valuable,

and indeed almost essential right,

Schecter vy, Killingsworth, 93 Ariz.

273, 380 P.2d 136 (1963), to drive a

car merely because of her status asa

wife ina community property state.

N.0O.W. believes that the essential

unfairness shown to Emma Perez does not

stop here, but has important implications

for other wives in community property

states. Under Arizona community prop-

erty law Emma has no managerial or

decision making powers and no control

of the community assets; she could

neither control the operation of the

Perez automobile nor insure the com-

munity, yet the decision of the Court

of Appeals would impose upon her the

responsibility for her husband's

operation of the automobile and for

his failure to obtain insurance.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article 1, Section 9, Clause 3

No Bill of Attainder or ex post

facto law shall be passed.

Fourteenth Amendment

§l .. . nor shall any State

deprive any person of life, liberty,

or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of

the laws.

Arizona Revised Statutes Annotated (1956)

Section 28-1142A (as amended,Supp. 1970)

A. The superintendent shall,

within sixty days after the receipt

of a report of a motor vehicle ac-

cident within this state which has

resulted in bodily injury or death

or damage to the property of any

one person in excess of one hun-

dred dollars, suspend the license

of each operator and all regis-

trations of each owner of a motor

vehicle in any manner involved in

such accident, or, if the operator

is a non-resident, the privilege

of operating a motor vehicle within

ulin

this state, or, if the owner is a

nonresident, the privilege of the

use within this state of any motor

vehicle owned by him, unless such

operator or owner or both shall

deposit aay oigie | in a sum which is

sufficient in the judgment of the

superintendent to satisfy any

judgment or judgments for damages

resulting from the accident as may

be recovered against the operator

or owner . . 6

Section 28-1162A

A. The superintendent upon

receipt of a certified copy of a

judgment, shall forthwith suspend

the license and registration and

nonresident operating privilege of

& person against whom the judgment

was rendered, except as otherwise

provided in this section and 828-1165.

Section 28-1163B

B. A discharge in bankruptcy

following the rendering of any such

judgment shall not relieve the

judgment debtor from any of the

requirements of this article.

Section 28-1165

A. A judgment debtor upon due

notice to the judgment creditor may

apply to the court in which the

judgment was rendered for the priv-

ilege of paying the judgment in in-

stallments and the court, in its

viten

discretion and without prejudice to

any other legal remedies which

the judgment creditor may have, may

so order and fix the amounts and

times of. payment of the installments.

B. The superintendent shall not

suspend a license, registration or

nonresident operating privilege, and

shall restore any license, regis-

tration or nonresident operating

privilege suspended following non-

payment of a judgment, when the

judgment debtor gives proof of

financial responsibility and obtains

an order permitting the payment of

the judgment in installments, and

while the payment of any installment

is not in default.

C. In the event the judgment

debtor fails to pay an installment

as specified by the order, then

upon notice of the default, the

superintendent shall forthwith

suspend the license, registration,

or non-resident operating privilege

of the judgment debtor until the

judgment is satisfied, as provided

in this chapter.

Section 25-211B

B. During coverture, personal

ae erty may be disposed of by the

usband only.

Section 25-213A & B& C

A. All property, real and per-

sonal, of the husband, owned or claimed

”

by him before marriage, and that

acquired afterward by gift, devise

or descent, and also the increase,

rents, issues and profits thereof,

is his separate property,

B. All property, both real and

Personal, of the wife, owned or

claimed by her before marria e, and

that acquired afterward by gift,

devise or descent, and also the

increase, rents, issues and profits

thereof, is her separate property.

C. The earnings and accumulations

of the wife and the minor children

in her custody while she lives

separate and apart from her husband

we the separate property of the

wife.

QUESTION PRESENTED

May the State of Arizona deprive a

wife of her right to drive simply because

her husband was involved in an automobile”

accident.

STATEMENT OF FACTS

Adlopho Perez was driving alone on

July 8, 1965, in an automobile regis-

tered in his name alone. Emma Perez

who was and is the wife of Adolpho was

not in the car. Adolpho's car collided

with one owned by Leonard and Janice

Pinkerton.

~ »

At the time of the accident, Adolpho

Perez did not have automobile liability

insurance. |

Adolpho's driver's license, but not

Emma's ,was suspended pursuant to

$28-1142A. At the end of one year,

no civil suit having been filed, Adolpho

applied for and secured the return of his

license. Emma retained her license

throughout this period because §28-11424,

A.R.S. operates to suspend only "the

license of each operator and all regis-

trations of each owner... ."

In 1966 suit was commenced by the

Pinkertons against Adolpho and Emma as

husband and wife. In 1967 Adolpho con-

fessed judgment. Emma, too, confessed

judgment, but solely because she was

obliged to do so under Arizona community

property law. Perez v. Campbell, 421

F.2d 619, 623 (1970) citing Donato v.

Fishburn, 90 Ariz. 210, 367 P.2d 245

(1961). The community was unable to

pay the judgment because of poverty.

Emma and Adolpho filed petitions in

bankruptcy in 1967. Their debts, in-

cluding the judgment owed the Pinkertons,

aBe

were discharged.

Then, although for more than a year

Adolpho had been deemed legally competent

to drive, because of the unsatisfied

judgment his license was suspended in

1968. This time Emma's license to

drive was taken from her as well, al-

legedly under authority of A.R.S. 828-

1162A. This statute authorizes the

Director of Motor Vehicles to suspend

the driver's license of a "person

against whom the judgment was rendered."

Emma is such a "person" solely because

she was the wife of Adolpho, the tort-

feasor, and was obliged to confess

judgment under Arizona community property

law.

At this moment Emma Perez, who, for

all that is shown in the record, is

a careful and fault-free driver, is

without her license solely because she

is the impecunious wife of an impecunious,

negligent driver in a community property

state. F

-9-

SUMMARY OF ARGUMENT

It is appropriate to invoke the

awesome power of the Constitution when a

state has stepped beyond the legitimate

boundaries of its police power to deprive

one of its citizens of a valuable right.

It is all the more appropriate when the

citizen is powerless by any amount of

diligence to avoid the result.

Revoking the driver's license of a

non-negligent wife who, under local com-

munity property law, was obliged to con-

fess judgment along with her negligent

husband, Perez v. Campbell, 419 F.2d

619 (1970); Donato v. Fishburn, 90

Ariz. 210 367 P.2d 245 (1961), offends

against constitutional prohibitions.

First, infliction of such penalty

upon the non-negligent wife without

benefit of hearing or trial denies her

due process of law. Indeed the most el-

ementary legal inquiry would have reveal-

ed that Emma Perez had committed no

offense against the state's traffic

laws, could not have prevented her

husband's negligence, and could not have

released community funds to satisfy the

community debt incurred by her husband's

negligence.

10.

Second, a wife who can neither control

her husband's use of the community auto-

mobile (A.R.S. §25-211B) nor expend

community funds to secure automobile lia-

bility insurance (Id.) is plainly power-

less to escape from the operation of the

state's Financial Responsibility Act. Thus

she is a member of an inescapable class of

wives in community property states; pun-

ished without personal fault. The appli-

cation of the Act to her is, therefore,

a bill of attainder. United State v.

Brown, 381 U.S. 437 (1965); United States

v. Lovett, 328 U.S. 303 (1946).

Third, the class of innocent and power-

less wives in community property states

bears no rational relationship whatso-

ever to the purpose of the Financial

Responsibility Act which is to afford

to injured motorists a remedy for col-

lecting their judgments. The revocation

of Emma Perez' driver's license by virtue

of her membership in this class is

invidiously discriminatory and denies

equal protection of law.

-11-

ARGUMENT

THE STATE SHOULD NOT REVOKE THE CITIZEN'S

RIGHT TO DRIVE WITHOUT COMPELLING REASON.

Without stopping to decide whether a

driver's license is a property right

within the meaning of the due process

clause, it is certain that whatever its

label, it has great value. The Arizona

supreme Court has determined that it

is a right, not a mere privilege.

Schecter v. Killingsworth, 93 Ariz. 273,

280, 380 P.2d 136, 140 (1963).

In this day, when the motor

vehicle is such an important

part of our modern day living,

when the use of the vehicle

is so essential to both a live-

lihood and the enjoyment of life,

this Court recognizes that the

use of the public highways is a

right which all citizens posses,

subject, of course, to reasonable

regulation under the police power

of the sovereign. Id. at 280,

380 P.2d at 140.

The Congress as well has recognized the

need for transportation.

. « « [T]he Congress finds that

the rapid urbanization and the

continued dispersal of popula-

tion and activities within urban

areas has made the ability of

all citizens to move quickly and

at a reasonable cost an urgent

national problem... . Urban

Mass Fergsportation Assistance

c @) 7 . a .

What then is the compelling interest

which prompted the State of Arizona to

take away the license of the innocent,

non-negligent wife of an impecunious,

negligent husband?

The Court below in its opinion, Perez

Ys. Campbell, 421 F.2d 621 at 624, says the

Act "bears a real and substantial rela-

tionship to public safety." But this is

not so. The relationship is tenuous at

best. This is evident from the fact that

careless and dangerous drivers of means

are unaffected by the Financial Responsi-

bility Act. It operates only against

indigent drivers.

The Financial Responsibility

Act has for its pager a pur-

pose the protection of the public

using the highways from financial

hardship which mn result from

the use of automobiles by finan-

cially irresponsible persons.

+ + « [T]he promotion of high-

way safety is not the primary

objective of this particular

law. Schecter v, Killin sworth,

93 Ariz, 273, 281, 380 Pood 13.

140 (1963), ”

What the Arizona Supreme Court had to

say about the general import of the

Financial Responsibility Act applies

with greater force to A.R.S. §28-1162A

under which Emma's license was suspended.

Plainly the sole purpose of this Section

is to provide a creditor's remedy beyond

those normally available to a judgment

creditor; it may inferentially serve to

prevent innocent, injured motorists

from being forced onto the welfare rolls.

Escobedo v. State Dept. of Motor Vehicles,

35 Cal.2d 870, 222 P.2d 1 (1950);

Schecter v. Killingsworth, 93 Ariz. 273,

280, 281, P.2d 136, 140 (1963).

Whether or not the creation of what

amounts to a super-judgment collection

agency in the State Capitol solely for

the benefit of a certain class of judg-

ment creditors can be said to be a valid

exercise of the state's police power,

nevertheless, the application of the

statute to Emma is constitutionally

improper for the following reasons.

-14.

II.

THIS APPLICATION OF THE FINANCIAL

RESPONSIBILITY ACT IS A BILL OF

ATTAINDER AND A DENIAL OF DUE PROCESS

The holding that suspension of a wife's

driver's Iicense because her uninsured:

usband ne en operate e com-'

unity vehicle fs within the Tepiooor

Resler and Reitz is based on a ntccnder-

Standing of Community Property Law.

The Court's conclusion that any dif-

ferences between the legal position of

Emma and that of her negligent husband

constitutesa distinction without signif-

icance is based on three fallacious

arguments, First, the Court contends that

Emma could have avoided a license sus-

pension based on her husband's negligence

by purchasing an automobile as ‘separate

rather than community property. Perez v.

Campbell, 421 F.2d 619, 623 (9th Cir.

1970). Second, it contends that Emma's

legal “status "is closely analogous to

that of an automobile owner who permits

another to drive it." Id. Finally, it

contends that the legislation permitting,

in effect and as interpreted, suspension

of her license as a result of her husband's

~ 15-

negligence, "bears a real and substantial rela-

tionship to public safety on the Arizona higways.

Id. at 624. All of these contentions depend on a

mistaken view of a wife's property rights in a

community property state such as Arizona.

Section One

The Court Below Misapplied Community Property

Law

The Court states:

The husband, or the wife, if each so

desired, could purchase an automobile

with separate funds and in such case

the automobile would be the separate

property of the purchaser. The neg-

ligent operation of such an automobile on

separate business would not call into

question the liability of the other spouse,

nor the cancellation of the latter's

license. Id. at 623.

Unfortunately, separate funds are highly un-

likely to exist. Separate property consists only

of property owned or claimed by either spouse

before marriage, and that acquired afterward

by gift, devise or descent. A.R.S. §25-213A

& B. (Other minor provisions are not here re-

levant). All other property acquired during

marriage is community property, and the per-

sonalty may be disposed of by the husband only.

A.R.S. §25-21l. If a wife's right to drive an

automobile is made to depend on her ownership

of separate funds, it will have to depend, then,

= [f=

on her ability to solicit gifts and on the financial

Status of her dead relatives.

Not only is most of the property acquired

during marriage, as a practical matter, clearly

community property, but also all property

acquired during marriage is presumptively

community property. Porter v. Porter, 101

Ariz. 131, 416 P. 2d 564 (1966), cert. denied,

386 U.S. 957 (1967); Anderson v. Anderson,

65 Ariz. 184, 177 P. 2d 227 (1947). It has

even been said that all property found in the

possession of the spouses during marriage is

presumptively community property. son v.

Tyson, 61 Ariz. 329, 149 P. 2d 674 (1944). ~

Moreover, this presumption is difficult to

rebut, the evidence needed being variously

characterized as strong, Satisfactory, convincing,

clear and cogent, or nearly conclusive. Porter

v. Porter, supra; Kennedy v. Kennedy, 93 Ariz.

252, 379 P. 2d 966 ( ; Smith v. Smith, 71

Ariz. 315, 227 P. 2d 214 (1951); Arizona Cent.

redit Union v. Holden, 6 Ariz. App. 310, 432

P. 2d 276 (1967). Furthermore, separate funds

which are comingled and not clearly traceable

become community property. Franklin v.

Franklin, 75 Ariz. 151, 253 P. 2d 337 (1953).

And separate funds treated as community pro-

perty become community even if they are

traceable. Laughlin v. Lau hlin, 61 Ariz. 6,

143 P. 2d 336 (1943).

The chances that a middle-class spouse

would both come into possession of separate

funds, and keep them sufficiently traceable

to satisfy the presumption are remote.

The chances of a wife whose husband runs

afoul of the Financial Responsibility laws

- 97

would do so are infinitesimal.

It could be argued that the-spouses could

agree that community property be held as se-

parate property, and the wife purchase her

automobile out of separate property. ‘This

argument entails several difficulties. First,

at the time before the accident, pre-1965,

it was not at all clear that this could be done.

Not until 1969 did the Arizona Supreme Court

hold that the community was severable on

post-nuptial agreement of the parties. In re

Estate of Harber, 104 Ariz. 79, 449 P. 2d 7

(1969). In any case, this is not the sort of

legal nicety of which one about to become

innocently involved with the Financial Res-

ponsibility laws is likely to be aware. Even

if she were aware of it, it would hardly occur

to her to sever the community in order to

avoid the result in Perez v. Campbell -- a

result that could not be predicted since it rests

on clear misinterpretation of community pro-

perty law. Furthermore, there is a practical

consideration that reveals an absurdity in the

Court's position reaching, perhaps, an equal

protection objection. It is clear, of course,

that a Financial Responsibility Act does not

discriminate invidiously simply because it affects

poor people more harshly than it does rich ones.

Watson v. Div. of Motor Vehicles, 212 Cal. 279,

298 P. 481 (1931). Cf. , Ex parte Lindley, 108 Cal.

App. 258, 291 P. 638 (1930). However, the

Perez Court's solution to the wife's problem

imposes a double burden. Not only will the law

affect her harsly because she is poor (which she

could not avoid, as will be shown in Section Two

of this argument), but also the Court would

require her to buy a second, Separate car to avoid

its operation. To create a class of poor, non-

negligent wives who must buy second cars as a

precaution against having their driver's licenses

revoked would seem sufficiently irrational to

violate even the traditional equal protection

requirements of Watson, supra.

The most compelling reason against such

a requirement is theneed. for the husband's

concurrence. A wife cannot avoid revocation of

her driver's license by simply agreeing with

herself that the automobile bought with originally

community funds is her separate property; she

must get her husband to agree. She cannot take

the Court's suggested remedial action on her own,

yet she is deprived of her license without being

able to avoid the result.

It is true that the husband would not have been

able to transmute a car bought with community

funds into separate property without the wife's

concurrence, but then he could have avoided the

result by buying insurance on the community car,

which she could not have done. See Section Two,

infra; see also Perez v. ampbell, 421F.2d 619.

624 (1970). The wife's inability to protect her-

self by the very action Suggested by the Court

indicates that the applicability of the logic of

Kesler and Reitz to a non-negligent wife who

owns only her community interest in the uninsured

automobile is not as obvious as the Ninth Circuit

Court of Appeals thought it tobe. Kesler v. Dept.

of Public Safety, 369 U.S. 153 (1962); Reitz v. Mealy,

314 U.S. 33 719.41)

a §9@

Section Two

The Effect of the Act is a Denial of

Due Process

The Court of Appeals further relied

on the cases that have held that a non-

negligent owner's license may constitu-

tionally be revoked on the authority of

similar Financial Responsibility laws,

holding that Emma Perez' position as a

community owner was analogous to them.

See e.g. In re Opinion of Justices, 251

Mass. 569, 147 N.E. 681, (1925);

Sullivan v. Price, 49 Ariz. 19, 63 P.2d

653, 108 A.L.R. 1156 (1937); Continental

Cas. Co. v. Phoenix Constr. Co., 46 Cal.

2d 423, 296 P.2d 801, 57 A.L.R. 2d 914

(1956); Sheehan v. Division of Motor

Vehicles, 140 Cal. App. 200, 35 P.2d

359 (1934).

It is important to note that in

Sheehan and other similar cases the

owner was indeed the owner of an auto-

mobile as separate property. These

decisions may be sound where the owner

has power to give or withhold his consent.

But, Emma's position is not analogous

to the position of the non-negligent

owners in those cases cited, or to those

-70-

in all cases researched) in two critical

aspects,

First, a wife owning only her com-

munity share of an automobile has no such

choice to exercise against her husband

-- or, indeed, in theory, against any-

body else. The husband, under Arizona

law, "is the head of the family and its

agent in the control and management of

the community." Fee v, Arizona State

Tax Comm'n, 55 Ariz. 67, 70, 98, P.2d

467 (1940). The Arizona Court has

further characterized the husband as

the head and master of the community.

City of Phoenix v. State, 60 Ariz. 369,

137 P.2d 783 (1943). Taking even this

one circumstance into account, it is

difficult to see how the Court could

feel that Emma's argument presented

"a distinction without significant

difference" Perez v, Campbell, 421 F,

2d 619, 623 (1970).

Second, in all those cases, the

owner could have protected himself

by insuring his automobile.

In Mac Quarrie v. Mc Laughlin, 294 F.

Supp. 176 (D. Mass. 1968) aff'd, 394 U.S.

456 (1969) an owner lent his car to a

person who became involved in an accident.

Neither owner nor driver carried auto-

mobile liability insurance. In upholding

the revocation of the owner's license,

the district court said the revocation

violated neither the equal protection

clause nor the bill of attainder clause.

If an automobile owner can, in

effect, be compelled to guarantee

the honesty of the person to

whom he loans his car [frefer-

ring to forfeitures where the

car is used to transport

illicit goods] we see no con-

stitutional impediment to

compelling him to guarantee

his agent's due care when the

offered alternative, or escape,

is the purchase of property dam-

7 insurance. Id. 294 F.Supp.

176, 178.

Plainly, in McQuarrie, Sheehan, and

similar cases, the owner has an escape

route available to him. One purpose of

Financial Responsibility laws is to

encourage owners and drivers to obtain

liability insurance. City of Toledo v.

Bernoir, 18 Ohio St.2d 94, 247 N.E. 2d

740 (1969). And just plainly that pur-

pose is not served in the instant case

a «

case because Emma Perez could not have

done so. "During coverture, personal

Property may te disposed of by the husband

only." A.R.S. 825-211B. This has been

interpreted to mean, in effect, "may be

disposed of only by the husband," (see

e-.g., Mortensen v. Knight, 81 Ariz. 325,

305 P.2d 463 (1956)), and as giving

him management and control of the commun-

ity. Id. Moreover, it has been explicitly

held that attempts by the wife on her ow

accord and without authority from her

husband to control and dispose of the

community personalty are ineffective.

Bristol v. Moser, 55 Ariz. 185, 99 P.2d

706; Richards v. Warenkros, 14 Ariz.

488, 131 P.154 (1913), Again if a wife

cannot prevent revocation of her license

by being scrupulously non-negligent, by

controlling the use of the community car,

or by insuring the car, these distinctions

must make a difference to the resolution

of the due process issues raised in Reitz,

and the state cases cited on p.19 of this

brief. On this same principle -- sole

community control in the husband -- the

wife cannot even satisfy the judgment

while she continues living with her

husband. She could live separate and

-93-

apart from her husband and attempt to

satisfy the judgment out of her own

earnings,which wuld then be separate

property. A.R.S. §25-213C. She could

also divorce her husband, and attempt

to satisfy the judgment out of any

property settlement and support she

might get, and her own earnings. Better

yet, she could have divorced him before

he committed the negligent act and avoided

both revocation and liability for the

judgment. It hardly seems necessary to

cite authority that encouraging such

actions serves no reasonable state

purpose of highway safety, and contra-

venes the ancient state policy of en-

couraging marriage and discouraging

divorce. Goodwin v. Goodwin, 47 Ariz.

157, 54 P.2d 268 (1936).

Section Three

The decisions that uphold the

constitutionality of state statutes

similar to that being interpreted in

this case (A.R.S. 8828-1162, 28-1163B

and 28-1165) have uniformly looked to

the purpose of the Financial Responsi-

bility legislation, and then looked to

-24-

the effect of its enforcement to see if

it reasonably forwarded any of those

purposes. For example:

The use of the public highways

by motor vehicles, with its

consequent dangers, renders

the regulation apparent ...,

Any appropriate means adopted

by the states to insure com-

petence and care on the part of

its licensees and to protect

others using the highway is

consonant with due process.

Some require insurance

- « »« « New York chose to

obtain the same end by provid-

ing for the revocation or

suspension of a license if

the holder is adjudged guilty

of negligent iy

As the court below has held,

the effect of the statute

° - was to make the license

privilege a form of protection

against damage to the public

inflicted through the licensee's

carelessness, Reitz v. Meale .

314 U.S. 33, dl ¢ >} cree