Sylvia Scott Whitlow v. F. E. Hodges, Director, Division of Driver Licensing, Department of Publicsafety of the Commonwealth of Kentucky

ENGEL, Circuit Judge.

At issue in this appeal is whether the Commonwealth of Kentucky may constitutionally require a married woman to make application for and receive a motor vehicle operator’s license in the surname of her husband despite a showing that for all other purposes the woman has continued to use her maiden name. Plaintiff’s complaint alleges that defendant’s policy violates her civil rights under the due process and equal protection clauses of the Fourteenth Amendment. She seeks relief under 42 U.S.C. § 1983, premising federal jurisdiction upon 28 U.S.C. § 1343.

By brief order, the late District Judge Mac Swinford dismissed the complaint relying wholly upon Forbush v. Wallace, 341 F.Supp. 217 (M.D.Ala.1971), a three-judge district court ruling, affirmed without opinion by the Supreme Court at 405 U.S. 970, 92 S.Ct. 1197, 31 L.Ed.2d 246 (1972). The court in Forbush denied the same claim now being urged by plaintiff in the instant case.

Upon appeal, this court entered an order remanding the cause to the district court primarily to permit an inquiry into whether Kentucky law allows a married woman to retain her maiden name as her legal name, indicating that if the district court should find that Kentucky law, like that of Alabama, requires a woman to take her husband’s surname upon marriage, then a three-judge court would not be required under 28 U.S.C. § 2281, as the result would be clearly compelled by the affirmance of Forbush. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). Upon remand, Chief District Judge Bernard T. Moynahan, Jr. reached the conclusion that under the common law of Kentucky, a woman upon marriage abandons her maiden name and assumes her husband’s surname. The district judge accordingly determined that the two cases were identical and once more entered an order of dismissal of the complaint. In this posture the case was again appealed to this court.

In this appeal, most of the briefing of the parties and the attention of the court was directed to whether the district judge was correct in his interpretation of the Kentucky common law. Upon further reflection we have concluded that notwithstanding our original concern in remanding, we need not determine with finality that the challenged regulation is consistent with the common law of Kentucky, a question which we believe upon the existing state of the law in Kentucky is better left to more definite resolution by the courts of Kentucky. Instead, while Forbush is no doubt reinforced by such a finding under the common law of Alabama, we read its primary thrust as directed to the question of whether the challenged regulation has a rational connection with a legitimate state interest. Forbush, supra, at 222. Thus the concern in Forbush, and ours here, is whether the conduct complained of abridges plaintiff’s rights under the Constitution of the United States. If the challenged conduct is under color of state law, “. . . inquiry concerning whether the State has authorized the wrong is irrelevant and the Federal judicial power is competent to afford redress for the wrong by dealing with the officer and the result of his exertion of power.” Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 287, 33 S.Ct. 312, 315, 57 L.Ed. 510 (1913); Accord, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Daniel v. Waters, 515 F.2d 485, 488 (6th Cir. 1975).

So viewed, we find Forbush on all fours with the instant case. Here precisely as in Forbush, an unwritten regulation is challenged. The rationale of Forbush can be applied equally here and without variation. Kentucky law, like that of Alabama, affords a simple and inexpensive means of changing one’s name. Winkenhofer v. Griffin, 511 S.W.2d 216 (Ky.1974); Kentucky Revised Statutes, KRS § 401.010, as amended (1974).^*

Plaintiff argues that this court should feel free to depart from the Supreme Court’s summary affirmance of For-bush, and quotes Justice Rehnquist’s comments in Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974) that “[summary affirmances] are not of the same precedential value as would be an opinion of this Court treating the question on the merits”. We might be inclined to agree with plaintiff, see Jordon v. Gilligan, 500 F.2d 701, 707 (6th Cir. 1974), cert. denied, 421 U.S. 991, 95 S.Ct. 1996, 44 L.Ed.2d 481 (1975), were it not for the recent pronouncements on the precedential value of Supreme Court summary actions in Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). The Court in Hicks rejected a three-judge district court’s conclusion that it was not bound by a Supreme Court dismissal of a judgment of a California court “for want of a substantial federal question.” The California court had sustained the constitutionality of the same obscenity statute which the three-judge court later decided was unconstitutional. The Supreme Court stated that the district court should have followed the Second Circuit’s advice in Doe v. Hodgson, 478 F.2d 537, 539 (2nd Cir.), cert. denied, 414 U.S. 1096, 94 S.Ct. 732, 38 L.Ed.2d 555 (1973), that the “lower courts are bound by summary decisions by this Court ‘until such time as the Court informs [them] that [they] are not’.” Hicks v. Miranda, 422 U.S. at 344-345, 95 S.Ct. at 2289.

Accordingly, this court deems itself bound by the Supreme Court affirmance in Fctrbush v. Wallace, supra.

Affirmed.

* Significantly KRS § 401.010 was amended in 1974 by deleting an exception to the name change statute in the case of married women.