Woodsum v. Boyd , 341 F. Supp. 448 ( 1972 )

GEORGE C. YOUNG

(concurring specially) :

When this case was heard by the Court on February 10, 1972, a ruling was announced from the bench that day at which time I announced my dissent to the decision reached by the majority. Thereafter, I prepared a written dissent which follows:

“I concur with the majority opinion that this is properly a class action and that the Court should not resort to the abstention doctrine for the purpose of declining to rule. However, I dissent from that portion of the opinion and decision of the majority wherein they find the Florida residence statute unconstitutional. I conceive my duty to be to rule on the facts in the light of the law as it exists and not as it should or perhaps soon may be.

In Pope v. Williams, 193 U.S. 621 [24 S.Ct. 573, 48 L.Ed. 817] (1904), the Supreme Court of the United States held that a Maryland law requiring persons coming into the state to reside to make a declaration of intent to become citizens and residents of the state as a prerequisite to the right to be registered as voters was not violative of the federal constitution.

It is true that Pope v. Williams, supra, is a 1904 case and that the passage of time and changing conditions may alter its force as controlling law, but it is also true that it has not yet been overruled by the Supreme Court of the United States. The fact that there are approximately ten durational residence voting cases now pending before the Supreme Court and that that Court has recently heard arguments on the subject, clearly demonstrates that this is an issue upon which the Court has not recently ruled. Therefore, until the Supreme Court rules otherwise, I conclude Pope v. Williams, supra, to be binding upon this Court.

The plaintiff and the majority of this Court rely upon the case of Kramer v. Union [Free] School District, 395 U.S. 621 [89 S.Ct. 1886, 23 L.Ed.2d 583] (1969) as the basic authority for overturning the Florida statute. In that case the then Chief Justice Warren said:

“At the outset, it is important to note what is not at issue in this case. The requirements of § 2012 that school district voters must (1) be citizens of the United States, (2) be bona fide residents of the school district, and (3) be at least 21 years of age are not challenged. Appellant agrees that the States have the power to impose reasonable citizenship, age, and residency requirements on the availability of the ballot. Cf. Carrington v. Rash, 380 U.S. 89, 91, [85 S.Ct. 775, 777, 13 L.Ed.2d 675] (1965); Pope v. Williams, 193 U.S. 621 [24 S.Ct. 573, 48 L.Ed. 817] (1904). The sole is-, sue in this case is whether the additional requirements of § 2012 — requirements which prohibit some district residents who are otherwise qualified by age and citizenship from participating in district meetings and school board elections — violate the Fourteenth Amendment’s command that no State shall deny persons equal protection of the laws.”

As I read Kramer, the ‘impelling interest test’ is to be applied only to those requirements for voting in addition to the requirements of age, citizenship and residence. If the ‘impelling interest test’ is to be extended, then it is for the Supreme Court and not for inferior courts to do so.”

Subsequent to February 10, 1972, at which time I dissented for the foregoing reasons, the Supreme Court of the United States on March 21, 1972, decided Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274, in which the durational residence law of the State of Tennessee was held unconstitutional. Although the Chief Justice dissented, saying:

“The holding of the Court in Pope v. Williams . . . is as valid today as it was at the turn of the century.”,

the decision of the majority of the Supreme Court is binding on this Court, and at this time I must concur that the decision of the majority is now the law.