Warren E. Burger: We'll hear arguments first this morning in Sosna against Iowa. Mr. Reynolds, you may proceed whenever you're ready.
James H. Reynolds: Mr. Chief Justice, may it please the Court. First of all, this is the durational -- durational residency requirement case. It is a developing area of the law that the Court is aware. We are raising the constitutional question of the Iowa durational residency requirement for access to the domestic courts of Iowa. It's an Iowa statute requiring one year residency before you have access to the courts basing it --
Harry A. Blackmun: Mr. Reynolds, is that precisely true with the -- straighten me out because I have a misapprehension here perhaps. Does the one year residential durational requirement apply if the defendant is also a resident of Iowa?
James H. Reynolds: No, if both of the parties moved in to Iowa together, then it does not apply, it only if one of the parties moves in.
Harry A. Blackmun: Well then --
James H. Reynolds: The other party is not a resident.
Harry A. Blackmun: This is rather unusual as compared to most statutes, is it not?
James H. Reynolds: I believe it is.
Harry A. Blackmun: Would the statute be easier -- be harder for you to attack if it applied across the board --
James H. Reynolds: Well, a --
Harry A. Blackmun: -- to a situation where a defendant was a resident?
James H. Reynolds: Well, I think the narrower the classification, the easier it is to argue on an equal protection question if there's no rational relationship to the narrow group that is excluded and I think that ours because it is a more narrow restriction, it's probably easier to argue because of the fact that it applies only to non-residence where there's a non-resident out of the State other party, whereas both has moved into the State --
Harry A. Blackmun: Even for a week?
James H. Reynolds: Even for a week --
Harry A. Blackmun: Actual residence even for as long --
James H. Reynolds: Right.
Harry A. Blackmun: -- only as long as a week?
James H. Reynolds: Right. For some reason, the State feels it has some compelling interest over parties which are one of -- one of them isn't in the State.
Warren E. Burger: Well, isn't that an obvious background, the divorce mill state problems that we had for a number of years when there were only about three states, Florida, Nevada I guess?
James H. Reynolds: I think that's probably true but I think that's probably the reason for there's a durational residency requirement has cause divorce mills to occur and I think that striking down on such a durational residency requirements will take care of that problem and that the States can litigate the proper status of those parties in the state where the real interest lies.
Warren E. Burger: But isn't there quite a difference? Isn't the state different -- quite different when both the husband and the wife come into the State and are subject to its jurisdiction giving the indications that they're going to make up the family home as distinguished from your case?
James H. Reynolds: No, I think that in the instance that if we use the criterion that we have advocate as the real jurisdictional question once the court has said in the past to be the jurisdictional question which is domicile that the domicile of the party is the real interest to which the State has and the fact that the domicile of the other party is only peripheral to the interest that they have because of the many concomitant things that go with the marital situations such as a severance, such as a custody, support, division of property and the attend and other things that go with it. Such as in Iowa, we have requirement of reconciliation, the injunctions that would be necessary or proper to preserve the peace or property and these things we feel are the real issue and that the citizen has in the divorce court, the non-resident or a resident domiciliary of the State who cannot overcome the jurisdictional one year requirement. He cannot have for instance a -- the severance of the relationship which is possible to a non-resident who moves in with his spouse and then the other spouse would for instance move out after the action has been commenced. If there is a severe reason for an immediate severance, we don't have to wait the 90 days that are normally required for divorce but if it was a one party was from out of the state, it had wait a full year and 90 days possibly or at least a year before they get an access to the court. The custody of the offspring and I feel this is very important and why many times access to the court is quite urgent because of the fact that the ramifications of the separate families if we don't make the ties cutoff that the ramifications and the effect upon children and the offspring of the marriage can be affected to a great extent and that therefore you should be able to get in at least as far as the parties are concerned and that the custody questions can be litigated so you don't have this situation, the parties running from state to state with children trying to get the other state to give them custody that we could get this matters litigated and that the offspring could be better protected if they let a chance to get to the court and the support of those persons, the division of the properties so that there could be certain injunctory orders entered to preserve the status quo so that disposition of the properties that the parties that they're leaving in another state, don't dispose of the properties or do something with them so that when it comes time to take care of the offspring that there are things available. For instance, there are statute to counseling, there's no counseling. The State of Iowa has maintained that one of the purposes of the one year residency requirement is this got somehow going to preserve the union that we feel that however immediate access to the courts would allow the order for some type of word of counseling which may be more beneficial than having two parties in opposite -- in separate state sitting and wondering about their situation for a year.
Harry A. Blackmun: You did present these questions to the Ohio likely the Iowa Court, I get it?
James H. Reynolds: We try to but --
Harry A. Blackmun: What did you present then in your pleadings?
James H. Reynolds: We presented it in the pleadings and the fact that we are required under the statute in question to plead the fact of one year residency requirement is to be pled.
Harry A. Blackmun: And you -- and it was rejected, your claim was rejected?
James H. Reynolds: The claim was rejected by Judge Keck and he rejected not on the basis that he passed on the question and as he said that he felt he was in the position to pass upon the constitutional question when the statute upon his facing to be quite certain and that he didn't want to go the constitutional issue.
Harry A. Blackmun: Or he didn't want to believe, rejected your claim you presented before, why didn't you appeal to that -- in the Iowa Court, carried the constitutional issue to the Iowa Court?
James H. Reynolds: We'll, because of the status of the case is at the time it appeared that only preservation under a situation where there was little or no dispute to write the statute itself that the state courts have been very reluctant to get into the constitutional issue. They would always avoid it has been the habit of --
Harry A. Blackmun: Presented to him and they can reject it?
James H. Reynolds: We could present it to him again and reject it but the court system then was in fact depriving the -- under 1983 was depriving the citizens of his civil rights which had been by history the prerogative or had been the place that had been litigated was in the federal court and therefore the federal court would be their proper forum to litigate this one. In fact, the state law which was depriving a citizen of the United States of a constitutional right was being deprived.
Harry A. Blackmun: You talk that in your pleadings in the state court, you challenged the constitutionality presented?
James H. Reynolds: No, the constitutionality of the statute was raised by the special appearance of the -- Mr. Sosna who came in and raised the special appearance and then it was litigated not by us but by them because the question had been raised as to his right to be litigated.
Harry A. Blackmun: It was then litigated?
James H. Reynolds: He was then litigated but I don't like term litigate, I don't feel it was litigated. We tried to present the case and Judge Keck says, that he was not -- did not want make pass upon that and he didn't, I don't think he ever intended to make a judicial decision on the constitutional issue.
William H. Rehnquist: What did he do to your complaint?
James H. Reynolds: Dismissed it.
William H. Rehnquist: Well then certainly he decides that you have no claim, doesn't he?
James H. Reynolds: No, he didn't decide that we had no claim. He just said that the statute says that you cannot have access to our courts period.
William H. Rehnquist: Well, why aren't you bound by that under law res judicata? Why are you free to go into federal court and re-litigate that?
James H. Reynolds: Well, because we're going back in the federal court in litigating really the state as you -- as the party, the original party was Mr. Sosna, we have no different parties. And we're talking about the State, the State under color of law, is trying to deprive us of a constitutional right, the right of access to the courts to litigate a very essential and necessary right to which is that of a marriage relationship and all of the concomitant things that arise from it, the very basic, we feel very basic right.
Harry A. Blackmun: But here was a pending case stated in the State and state court system, it wasn't by law. I mean you have appellate opportunity, it's very constitutional question through the state court system. Why should a federal court get into and defend for it?
James H. Reynolds: Well, because of -- I think because of the fact of the status of the law at the time, the law was very certain they put to the question of durational residency requirement had been struck down in the past by other federal courts and I think if we should look from our brief, you can see that when you split up the cases between those that have sustained the durational residency requirement and those that have struck them down, it has been almost the majority of the state courts in the federal court however is always vindicated the rights, the constitutional rights because that had been the proper forum. And that when it was a very, as the court said, a very certain statute on its face, there wasn't any way normally that you say, okay we're going to litigate it further in the state court, if there's any chance that you might have a chance of changing the opinion or having the matter at least under 1983 case that there could be some construction of the statute which would in fact give you a vindication of those rights and that there would be no such vindication and its superfluous to --
Thurgood Marshall: How can you --
James H. Reynolds: -- require them to proceed.
Thurgood Marshall: How can you assume that the Supreme Court of Iowa will not apply the United States Constitution properly? How can you assume that when they took a note to support the Constitution of the United States and the State of Iowa?
James H. Reynolds: That's true they did.
Thurgood Marshall: Now, how can you -- you say that they won't follow the federal constitution?
James H. Reynolds: No, what I was taking was as a lawyer looking at the --
Thurgood Marshall: What you said that they wouldn't decide in your favor?
James H. Reynolds: Well, I think that it has been historically true that they confine the decision or reason more compelling which would justify the durational residency requirement. We feel --
Warren E. Burger: When you say they, who do you mean?
James H. Reynolds: The Supreme Court --
Warren E. Burger: Which --
James H. Reynolds: -- that find a more sufficient reason as the -- as in our particular case two of the three federal judges found that the interest is somehow was going to preserve, that this was somehow going to preserve the marital situation and that if you look at the decisions which have sustained the state court decision which has sustained these durational residency requirements, they've gone from filler to post under reasons that they felt that somehow was going to sustain these -- for some reason we're going to help the marriage or we're going to preserve a compelling state interest which --
Thurgood Marshall: Has evidence shown -- is it the Iowa Supreme Court?
James H. Reynolds: The durational remedy --
Thurgood Marshall: On federal constitutional grounds?
James H. Reynolds: That is the best of our research, it hasn't. The Iowa Court spoken (Voice Overlap) however over, over again in the past.
Thurgood Marshall: How can you imagine what they're going to do?
James H. Reynolds: Well, I suppose you just have to as a lawyer. Look at what the history has been --
Thurgood Marshall: Of Iowa?
James H. Reynolds: Well, the history of state court decisions in regards --
Thurgood Marshall: Well, this is Iowa you're talking about.
James H. Reynolds: Well, anyway we all have an Iowa right.
Warren E. Burger: And you have a unique statute in Iowa you indicated to Justice Blackmun?
James H. Reynolds: Well, it's unique in regards to durational residency requirement but I don't think it therefore makes it anymore easy for the Supreme Court of Iowa to decide it.
Warren E. Burger: Well then, how are the actions of other state courts with different statutes relevant to this issue?
James H. Reynolds: Well, because of the fact that they have always found that there was some compelling state interest which we have felt that there was no such compelling state interest and that the federal courts whenever were presented with the case always found that there was not a compelling state interest that the history of the federal decisions in regards to marital relationship was it was one of the most basic of the relationships and therefore that to deprive someone under color of law whether by a court or some jury, some residency requirement was in fact one of the very basic things that was at issue and that therefore the line of cases of Shapiro in welfare cases, and Dunn in the voting cases, and Memorial Hospital in the non-emergency medical care that these were all the same type of situations.
Harry A. Blackmun: So what you're saying is that you felt there was a more favorable atmosphere for your cause in the federal side?
James H. Reynolds: I felt more favorable atmosphere because of the fact that that is --
Harry A. Blackmun: I know why but --
James H. Reynolds: -- recently been the forum of --
Harry A. Blackmun: On the other hand, you started your action on the state side and chose not to appeal?
James H. Reynolds: Well, if we didn't start it on the state action, we would be on a rather moot position to go on and say that we would like to have a divorce, start a divorce but we can't because of the residency requirement. If you don't start it you could then turn on and say well, how do you know you really have broken marriage?
Harry A. Blackmun: Isn't there a federal declaratory judgment on that?
James H. Reynolds: I think there is a -- sure there's a declaratory judgment statute but the question was whether or not it's really at issue then. Is it a justiciable situation or controversy if you have in fact a larger divorce action? How do you know for sure that you really have a divorce?
Harry A. Blackmun: You have a separate maintenance statute in Iowa?
James H. Reynolds: There is a separate maintenance statute in Iowa.
Harry A. Blackmun: You chose not to follow that one either?
James H. Reynolds: That also has a requirement.
William J. Brennan, Jr.: Mr. Reynolds, may I ask you, I notice that the defendants and the federal suit that's the state and Judge Keck expressly pleaded, I'm looking at page 23 now of the appendix paragraph (d), the suit involves primarily state laws of constitution and this Court should abstain until Iowa courts have ruled on such issue. I don't see any reference in either the district court opinion, either of the district court opinion to that issue, was that brief been argued before the district court?
James H. Reynolds: The issue of the --
William J. Brennan, Jr.: Whether -- whether or not the district court should have abstained pending resolution of this constitutional question by the Iowa court?
James H. Reynolds: No.
William J. Brennan, Jr.: It wasn't briefed either?
James H. Reynolds: No.
William J. Brennan, Jr.: By either side?
James H. Reynolds: I don't believe it was. The matter solely turned --
Byron R. White: Excuse me, the question is that arguably the question is whether or not the Younger against Harris kind of approach to a pending criminal case when one seeks to go to a federal court, it should be applied with civil proceedings depending on the state you're in?
James H. Reynolds: Well then, the criminal part of it, I've -- you know as an old prosecutor, I know how important it is to keep your prosecution going once you've got the machinery going and that therefore that interest is far different than that of a civil litigation where you're alleging that the civil litigation and the judge in the under color of the state law is in fact depriving a citizen of his basic federal constitutional right and I think that's quite different because of the nature of the criminal process which is different than the civil process and therefore has rises above and maybe is a more compelling state interest in the prosecution of criminals.
Byron R. White: I suppose that you have, at least after this trial court judgment which you did appeal, if you have filed a declaratory judgment action against the same -- against the other party to this marriage in a state court of Iowa seeking they have a statute declared unconstitutional, you -- and the defense of res judicata had been raised than you did not sustain under Iowa law or any other law, isn't it?
James H. Reynolds: On res judicata as to issue or claim or as to parties or --
Byron R. White: No, with the same parties, same -- it was same parties here. You could have brought another declaratory judgment action or on other decrees in litigation in the Iowa court without facing res judicata claims, would you?
James H. Reynolds: I think that if we had brought the case against Iowa --
Byron R. White: Well, --
James H. Reynolds: -- as against to Mr. Sosna I think we could.
Byron R. White: I'm talking about the other party to the marriage?
James H. Reynolds: I don't know how we could bring a declaratory judgment action against another party to the marriage.
Byron R. White: Well, especially after it has already been -- your claim has already been decided.
James H. Reynolds: No, I -- but the marriage situation is you're certainly litigating the marriage situation and you can't get a declaratory judgment out of it.
Byron R. White: You brought a declaratory judgment action on the constitutionality of the statute?
James H. Reynolds: Right. Without first --
Byron R. White: That claim had already been decided in your divorce action.
James H. Reynolds: Right.
Byron R. White: Well, but you think the real thing that save you is that you were litigating with Iowa rather than with the other party to a divorce action?
James H. Reynolds: Right, that's a 1983 case. We're saying that the State by enacting a statute is in fact depriving us of our constitutional rights that we've judge -- we've joined Judge Keck in it because the fact that he under color of law is in fact depriving us of a basic constitutional right. Otherwise, you might as well throw 1983 out the window if you're going to say that if you bring a state court action and the judges use the state court law and to deprive you of your constitutional right, you can't raise the declaratory judgment question as to whether or not that state law is in fact --
Byron R. White: You can appeal it and then you can file for certiorari.
James H. Reynolds: That is an alternate proceeding, yes.
Thurgood Marshall: What you really did was instead of appealing to the state court you're appealing to the federal district court?
James H. Reynolds: No, we're not really appealing (Voice Overlap) to the federal district court, we're asking the --
Thurgood Marshall: Well, what is the difference?
James H. Reynolds: Well, because what we are litigating -- we started out for a divorce action. We say we wanted a divorce. We wind up having the defense being frost upon us that the fact that you haven't been there for a year and litigating our constitutional rights in the state court. Now, we then now would turn around to the federal court and said we have been deprived by the state court under the defense of no jurisdiction and therefore we would like to have this Court declare and enjoining the court from using that defense and to throwing us out of court so we can have access to the state court.
Thurgood Marshall: If you've gone to the Supreme Court of Iowa, what would you ask for? The same thing, wouldn't you? Would you ask for --
James H. Reynolds: We would ask for an injunction against the maybe mandamus or something like that and then you're into -- I mean that the --
Thurgood Marshall: Well, couldn't you appeal that way, direct appeal?
James H. Reynolds: Direct appeal to the Iowa Supreme Court?
Thurgood Marshall: Yes, sir.
James H. Reynolds: Yes, we could have appealed that.
Thurgood Marshall: And instead of that you appealed to the federal court?
James H. Reynolds: We went and ask the federal court to declare and enjoin the state court --
Thurgood Marshall: Would you have (Inaudible) that way?
James H. Reynolds: No, I don't think so. I think that the, at least had been my experience with three-judge federal panels that if you've got a civil rights that are being deprived under color of law by a state, the quickest way you can do it and was thought to be that by the Constitution -- by the Congress was to enact 1983 and that to me I know is the quickest way to vindicate your rights if you're being abused by the State.
Warren E. Burger: That brings up another related matter. Your client has now been a resident and viable for much more than a year, is that not so?
James H. Reynolds: I believe so.
Warren E. Burger: And now she satisfies the requirement, does she?
James H. Reynolds: She has, yes.
Warren E. Burger: Can she get jurisdiction of the husband, the defendant by publication?
James H. Reynolds: He could probably litigate the status in Iowa but not the questions of personal jurisdiction as to none Iowa in rem type of things. I mean the status is in Iowa but anything else is still in New York, so, yes, you can probably get it terminated if she's willing to give up everything, the questions would delete it.
Thurgood Marshall: Wouldn't she get this thing (Inaudible) now is if we -- as if we would knock the statute out?
James H. Reynolds: Well, that's the whole point, you have to wait a year and there are important --
Thurgood Marshall: Where did the --
James H. Reynolds: Yes, but there were important things that, the laws over the --
Thurgood Marshall: So she can get the divorce right now?
James H. Reynolds: But there were important things that should have been litigated that never were, for instance the right and support of those children should have been litigated than not having to wait a year or well maybe Mr. Sosna might take up other relationship.
Thurgood Marshall: Could it be done now?
James H. Reynolds: Pardon?
Thurgood Marshall: Can it be done now?
James H. Reynolds: It can be done now, yes but the question --
Thurgood Marshall: All of it? What is there that relief in this Court will give you that you don't have as of right now?
James H. Reynolds: Declaratory judgment, declaratory of the constitutional right of the --
Thurgood Marshall: That she could have had the divorce before?
James H. Reynolds: Right, as --
Thurgood Marshall: And what good does that do her?
James H. Reynolds: This particular case -- this particular plaintiff in the class action? Well, as for this particular plaintiff, her situation has been resolved by time but the length it takes to litigate the matter but there are other situations which is --
Thurgood Marshall: That didn't give you any problem?
James H. Reynolds: What doesn't give me any problem?
Thurgood Marshall: The fact that it's moot so far as she's concerned?
James H. Reynolds: No because as the court --
Thurgood Marshall: Is there any other name brought?
James H. Reynolds: As Judge Stephenson said in his --
Thurgood Marshall: Is there any other named party in the class?
James H. Reynolds: No, I believe not but at least the class was acknowledged and never challenged by anyone up to this point.
Thurgood Marshall: Has anybody else intervened?
James H. Reynolds: No, but we had plenty of calls about people that wanted to.
Thurgood Marshall: (Voice Overlap) as to the name of the father, would happens to the class?
James H. Reynolds: I believe that there is a president for the class, we have nothing else as to remand it to the court again and let other members of the class join in if --
Thurgood Marshall: What case is that?
James H. Reynolds: I think it was the Babcock versus Wilson, I don't have the --
Thurgood Marshall: That's alright, Mr. Reynolds. You admit the main party is -- does not need any relief from this Court?
James H. Reynolds: She herself?
Thurgood Marshall: Yes.
James H. Reynolds: Not as far as the Iowa court is. She in fact has gone and got a divorce and had to go back and litigate the matter, take a bus back to New York and had a litigator --
Thurgood Marshall: You said she's gotten a divorce?
James H. Reynolds: Yes, in fact in New York. She had to go back to New York in litigation --
Thurgood Marshall: Will she get a divorce in Iowa if she's already gotten one in New York?
James H. Reynolds: Well, that's a good question. Cooper versus Cooper --
Thurgood Marshall: To me, there's no problem for me at all?
James H. Reynolds: Well, Cooper versus Cooper raises the question which is an Iowa decision about a doctor from Iowa that went out to Nevada and get a Nevada divorce and the Iowa court says we can still -- our support judgments and personal judgments in regards to support. So far there's nobody going to stand who will acknowledge the divorce in Nevada. Now, under Iowa law, I have to question as to whether or not she can get a New York divorce and might have a different question as why is the State of Iowa under the present status of Iowa law in 19 -- I believe in 19 Cooper versus Cooper was a 74 --
William O. Douglas: So far as the support of the children go?
James H. Reynolds: Pardon?
William O. Douglas: So far as the support of the children go?
James H. Reynolds: Right. Now, it's the grade of the divorce and the court there, I mean, used their powers of determining domicile of the doctor who left on October and went to Nevada, got his divorce and came back in January and they went through the question as to whether or not it was domicile or not and they said yes it was domicile in Nevada sufficient for the Nevada Court to have jurisdiction or grant -- acknowledges divorce --
Thurgood Marshall: Is there anything that she can get from us that she can't get from the Iowa court right now? From this very same judge you went before?
James H. Reynolds: No, that she herself, no, but the class to which she is member I think still can because I think that as the State has admitted in their stipulation of facts that it is a group so and its so numerous that -- were numerous than has able to be counted and I think that there are numbers and numbers of people who have marital relations which are at question and needed access --
William H. Rehnquist: We set up several occasions Mr. Reynolds that a person can't represent a class of which he's not a member and I think that would probably be true of your client now whatever the class might be of people awaiting Iowa divorce requirement, your client certainly is no longer a member of it?
James H. Reynolds: No, I would -- at this present status, yes she would not be but the class itself and I would urge that if the court was to adopt the question that they would send it back so that other members of the class who would be members would in fact be able to join in the matter and to bring the matter back before the court. I'd like to reserve five minutes for rebuttal if possible?
Thurgood Marshall: Why couldn't it be (Inaudible) supposed to be?
James H. Reynolds: I suppose they can but as we've indicated that it's a matter of urgency and a necessity and that's the basic question about the marital relation, its not a matter of waiting a year because by that time the damages are done as to the children, the property, the relationship itself has deteriorated and that these are matters of that need work instanter, that in a year, that's the whole projection of the question.
Warren E. Burger: Very well. Ms. Nolan.
Elizabeth A. Nolan: Mr. Chief Justice, may it please the Court. I'm here on behalf of the State of Iowa to urge the affirmance of the Court below. The federal district court there did take on this civil rights action and as its opinion clearly states it was convinced --
Warren E. Burger: Would you raise your voice a lit bit Ms. Nolan.
Elizabeth A. Nolan: Yes certainly. It was convinced that the compelling interest test had been satisfied and that the State of Iowa did meet all of the requirements that have been set a standards in the recent cases determining whether or not when a person is newly arrived in the State it has access to its courts and access to its order -- rights given to citizens. The matter below was at one time pled with a view toward the abstention doctrine.
William O. Douglas: And did you argue it, Ms. Nolan?
Elizabeth A. Nolan: We didn't -- I did not take part in the hearings below but its my understanding it was not argued and as a matter of fact when the research was done on the cases and the various standards that might come into play, it was decided that abstention was probably not the proper thing in this particular case that the State could meet its burden that it would be of some value in this area to have a federal court ruling on the case being litigated. In this connection, Mr. Justice White, you asked if there was a reason for the federal court to come in and hear cases of this nature when its is perfectly possible for the state courts to determine the constitutionality of their own statute and I can only say to that that it appears to be a current practice and that the name of one case I can't pronounce but it's a Hawaiian case, its been decided since Whitehead versus Whitehead and in that instance, both the federal courts and the state courts have looked at this very same question, and so for that reason we abandoned our position of abstention in this case.
Byron R. White: And did you argue in any event collateral estoppel based on the conclusion of the proceeding before Judge Keck in the state court?
Elizabeth A. Nolan: No, I don't believe that was argued as a matter of collateral estoppel. Judge Keck's decision there was one which we believe was thoroughly grounded in a lie. It was a well-reasoned decision and that thereto all of the requirements of the federal constitutional protections for the rights of individuals had been met.
Byron R. White: No, but what I was getting at Ms. Nolan was whether you relied on that conclusion of Judge Keck's disposing adversely to this petitioner?
Elizabeth A. Nolan: To this plaintiff?
Byron R. White: Yes, the constitutional question whether you relied on that as collateral estoppel in this federal court suit?
Elizabeth A. Nolan: Well, I would say that (Voice Overlap) representing Judge Keck in his position that he had acted under color of state law, yes, I guess we did.
Thurgood Marshall: Ms. Nolan, did you acquiesce in bypassing your own state court? Do you think that's a problem for an Attorney General?
Elizabeth A. Nolan: I don't Mr. Justice Marshall, I think that here however, as statement was made just previously to my arising and that is that the plaintiffs have the right to go to the Supreme Court of Iowa in this matter. Actually their time for appeal has expired, I don't that is any longer available to them.
Warren E. Burger: But all of our questions were directed to their right to go to the Supreme Court of Iowa at that time, not now.
Elizabeth A. Nolan: At that time, yes sir, I think they did certainly have that right.
Warren E. Burger: And is your answer to Justice Marshall that the State of Iowa is perfectly willing to bypass the State Supreme Court and go into federal court?
Elizabeth A. Nolan: The State of Iowa since in the last 10 years has done a great deal to liberalize its divorce laws. We also would like to know where we stand. We believe that our Supreme Court would affirm Judge Keck's decision in this particular case. We don't have any reason to appeal that decision. On the other hand, if the plaintiffs in that case chose to abandon their appeal why -- and they bring their action in another forum or we did come to that forum with the hope that this might serve some benefit both in the State of Iowa and in general in resolving these particular requirements for the protection of civil rights. This Court is well aware that since Pennoyer versus Neff and the Williams versus North Carolina, there has been a great deal of controversy about divorce actions and when the Iowa legislature in the -- starting about 1967 undertook a study of the divorce laws with the purpose of reforming them in the State of Iowa. They were well aware of the conference work on the Uniform Divorce Act and also they were aware of the decisions of this Court particularly Estin versus Estin and the Vanderbilt versus Vanderbilt cases which talked in terms of divisible divorce and accommodation of the parties and all of this matters and it was for this purpose that we abandon our abstention doctrine in the lower court and attempted to meet what the Fifth Circuit now has seemingly in the Makres versus Askew case coming Florida. What seems to be a unitary standard showing compelling interest and overwriting significance in all matters whether they arise from due process or from some other incident of equal protection of the law. In the case of Iowa, we feel that our statute is tailored to minimize overbreadth by applying the durational residency rules only in those cases where the respondent is not a resident and cannot be served personally in the State and for this reason we feel that we have in reenacting a requirement that has long been on the books of Iowa help to formulate a valuable standard and we have them pointed out in the Uniform Marriage and Divorce Act as being one of the original states to take part in this kind of uniformity in this area of the law and for this reason, the federal district court action was argued by the State.
Potter Stewart: Ms. Nolan, has the Supreme Court of Iowa in any other case dealt with the constitutional validity of this statute? I think Mr. Reynolds was asked that question but I didn't get any --
Elizabeth A. Nolan: Well, in Judge Keck's decision which is sent out in the jurisdictional statement, there's a reference to Korsrud versus Korsrud that's in 242 Iowa I believe and 45 N.W.2d, I think it is. In any event, that case involved a petitioner who originally was a resident of the State of Iowa. He took up residence in Hawaii and attempted to obtain a divorce there. Then he came back to the State of Iowa on being advised at Hawaii that Iowa is the proper place to bring his action and obtained a divorce without informing his spouse who later came back and contested the validity of that divorce on the basis that the court had not had jurisdictional -- the fact of jurisdictional basis for giving the divorce and that order was invalidated and we find this in our own -- from our own experience in Iowa. So it is possible --
Potter Stewart: So the Supreme Court applied the statute, you don't know if it's the validity of the statute itself was attacked on that case?
Elizabeth A. Nolan: The Supreme Court did test the validity of that statute at that time and held that there was a sham domicile pled and that it was a victim of fraud and that the court was a victim of fraud.
Potter Stewart: So the court applied the statute?
Elizabeth A. Nolan: And the court applied the statute, yes.
Potter Stewart: But you don't -- do you know whether or not the constitutional validity of the statute was attacked in that case? Does it appear from the opinion or for anything else?
Elizabeth A. Nolan: In my recollection, it was attacked only on the basis of whether or not the court had jurisdiction but I think that is essential to the constitutional validity of that particular section of the code.
Potter Stewart: Well then the facts were litigated I guess --
Elizabeth A. Nolan: That's right.
Potter Stewart: -- it were an issue in that case but --
Elizabeth A. Nolan: That's right. I think it should be mentioned here also that in the District Court, this petitioner came in and the court found that not only did the petitioner failed to alleged the one year residence which is mandatory under the circumstances of that particular action but that also the plaintiff failed to plead that her residence in the State had been in good faith and not for the purpose of obtaining marriage dissolution. This is not an issue in this particular case but both of these requirements are mandatory under the Iowa dissolution of marriage statute.
Potter Stewart: How long has the statute been on the book? You said that Iowa has recently been on the process of changing its divorce law, domestic relations law? Our dissolution statute was enacted in 1970 and it has reenacted this particular provision for the protection of the absent spouse so that due process will be accorded which was in the law previously and I don't know how far back that it goes, it appears to go back at least into the 50s and I'm sorry I didn't research that.
William H. Rehnquist: Is Iowa statute basically the uniform law?
Elizabeth A. Nolan: Well, I would say that as close as uniform laws are uniform, Iowa statute is the uniform law, yes. It contains requirements that there be an allegation of a breakdown of the marriage relationship. This is also one of the reasons that we were interested in pursuing this in the federal court because we felt that it was necessary to determine that the State of Iowa did have jurisdiction over the marital status. In this particular instance, it appears from the allegations in the federal action that the plaintiff and from the answers to the interrogatories also that the plaintiff's marital relationship with her husband had broken down somewhere outside the State of Iowa and some several months prior to her relocation in the State of Iowa. So, it may and we felt it was questionable as to whether or not there actually was a jurisdiction over the marital status in the State of Iowa although one of the parties alleged to be domiciled there.
Thurgood Marshall: But that was an individual court, was it?
Elizabeth A. Nolan: I believe it was sir.
Thurgood Marshall: What happened?
Elizabeth A. Nolan: In --
Thurgood Marshall: I thought the federal court was just on the statute not on the divorce. The federal court couldn't give a divorce, could it?
Elizabeth A. Nolan: There were interrogatories propounded and answered in the federal court action and I believe this information is contained clearly in the answers of the individual counsel.
Thurgood Marshall: What you merely wanted was that the federal court to put the stamp of approval on this case?
Elizabeth A. Nolan: We appeared in that action as defendants.
Thurgood Marshall: But that's what you wanted?
Elizabeth A. Nolan: We would be happy if the court would put a --
Thurgood Marshall: What you really want --
Elizabeth A. Nolan: -- stamp of approval on our state statute.
Thurgood Marshall: is an advisory opinion, don't you?
Elizabeth A. Nolan: Pardon me?
Thurgood Marshall: You want an advisory opinion from the federal court, don't you?
Elizabeth A. Nolan: The action that was brought was for a declaratory action for declaratory judgment.
Thurgood Marshall: It could mean an action of the State of Iowa in abandoning abstention and everything else, what you really wanted was a stamp of approval, didn't you?
Elizabeth A. Nolan: I would say yes that that is true. The State of Iowa had no con --
Thurgood Marshall: I didn't know that federal courts were here to grant advisory opinion, I didn't know that?
Potter Stewart: You were the defendant?
Elizabeth A. Nolan: That's correct.
Potter Stewart: You didn't go to another court?
Thurgood Marshall: But she agreed.
Potter Stewart: Not so very long ago as time goes, the prevailing law was that a wife could not acquire a separate domicile, that was the prevailing domestic relations law would be that the marital domicile was the husband's domicile, and that so long as there was a marriage between the two, the wife was incapable of acquiring a separate domicile anywhere. Do you know of any states still have that rule?
Elizabeth A. Nolan: I don't know, I don't think that's been the rule in Iowa for sometime because our statutes do permit the court to take jurisdiction if one of the parties is domicile.
Potter Stewart: But I say the rule that I just summarized used to be the prevailing rule in domestic relations law, you don't know of that.
Elizabeth A. Nolan: I have no knowledge of other states in that particular regard.
William O. Douglas: Ms. Nolan, you had the discussion of the mootness issue. Mrs. Sosna has now been divorced. There is no other party with class action, what is your position on the mootness question?
Elizabeth A. Nolan: Well, my position on this question before this Court is that there appears to have been a proper appeal from a district court order and that this Court does have authority and power to affirm that lower court decision which is what we asked. With respect to the class action as such, I think that that entire matter has now been made moot.
William O. Douglas: You say -- you think it has been mooted?
Elizabeth A. Nolan: I think so but I think that the appeal is preserved or was properly preserved.
William O. Douglas: You think the class action is moot but the appeal is preserved?
Elizabeth A. Nolan: I believe so.
Warren E. Burger: So what is the case or controversy between these two party -- between the husband and the wife?
Elizabeth A. Nolan: Well, --
Warren E. Burger: Or between the husband rather the wife and the State of Iowa?
Elizabeth A. Nolan: The controversy was that --
Warren E. Burger: Is --
Elizabeth A. Nolan: What is --
Warren E. Burger: Today, right this minute at quarter to 11, what controversy exists now?
Elizabeth A. Nolan: I feel that the petitioner in the original action although now divorced and I assume removed from the State of Iowa would have only the controversy grounds that existed at the time that the action was originally brought and that is to have the question determined under the civil rights sections of the code and then to pursue any decision through appeal to the highest court in the land.
William O. Douglas: We held here that the decisions say that New York court on a divorce matter would not bind the say Iowa on the question of support of the children that that is not the res judicata?
Elizabeth A. Nolan: Are you referring to the divisible divorce here?
William O. Douglas: I'm just trying to get you over these little hedges.
Elizabeth A. Nolan: Thank you, I appreciate it. I don't have the answer really to the question. I assume that this appeal was brought in good faith and that the court took jurisdiction of it in good faith.
Thurgood Marshall: Are the children in Iowa, now?
Elizabeth A. Nolan: Pardon me?
Thurgood Marshall: Are the children in Iowa or New York?
Elizabeth A. Nolan: I do not know.
Warren E. Burger: Are any of the parties in Iowa, now?
Elizabeth A. Nolan: As of this morning it sounds like they aren't other than Judge Keck and the State of Iowa.
Warren E. Burger: I'm not very clear whether the State of Iowa is urging or not urging federal jurisdiction here, you lose me in a state of confusion on it? The State of Iowa's position on the federal jurisdiction question is that the State, that the United State statutes appear to give to the federal courts the power under the civil rights law to determine questions of violations of constitutionally protected rights of individuals where the violations occur under color of state law and this is the way this case was originated and this is the way this case was argued in the lower court.
William O. Douglas: In many of the lower federal courts on class actions for the named party has dropped out of the case remand that case to the District Court where the case started to see of any but not can be for others to join -- other class to join, you haven't briefed that, didn't you?
Elizabeth A. Nolan: I have not brief that and --
William O. Douglas: Are you familiar with our decision?
Warren E. Burger: I think it was last term in the Burney case?
William O. Douglas: Burney.
Potter Stewart: Burney against Indiana.
Elizabeth A. Nolan: No I'm not.
Potter Stewart: Two terms ago.
Elizabeth A. Nolan: I'm not but in all of this time no other party has come forth to join this class.
William O. Douglas: Well, I know that, as I recall the Burney situation was not unlike this one. I think what we did was sent it back to give others of the class an opportunity to intervene? The -- so far as the main party was concerned as I recalled Burney like this one could appear. The case was no longer a case at all, no case or controversy, you don't ask us to do that?
Elizabeth A. Nolan: I don't ask you to do that.
Byron R. White: You won below and you want to hang out to that? We'd be happy with that decision.
Byron R. White: Ms. Nolan, do you know when the divorce took place?
Elizabeth A. Nolan: When the divorce took place? I didn't hear about it until this morning, evidently it has taken place in New York State.
Byron R. White: Since we noted probable jurisdiction? The answer is yes?
Speaker: Yes.
Warren E. Burger: Yes, but we have a special request that the parties addressed themselves to the Younger versus Harris problem, it was that not so?
Speaker: That was true.
Elizabeth A. Nolan: In Younger versus Harris, had the -- we would contend that had the court or had they pursue this appeal to the state court, that Younger versus Harris would be applicable here but on the other hand, there seems to be an overriding interest in getting some kind of certainty append to these types of jurisdictional questions and --
Byron R. White: Well, if the federal court had sustained the statute against the federal claim the one constitutional by litigant? Who just like to deal --
Speaker: Correct.
Byron R. White: And the suggestion is that if there's a pending statement in which the issue may litigate, that it should be reserved to the state courts than brought here. Now –- but the Younger used in court based on some notion of protected state interest expressly copied the state court system. And if the state doesn't want it, (Inaudible) then you have will have to plead the res judicata and collateral estoppel which is normally done.
Elizabeth A. Nolan: That's correct we did not.
William H. Rehnquist: Why -- Why didn't you plead it?
Harry A. Blackmun: Ms. Nolan, (Voice Overlap) why you pleaded, the Younger from that provision has paragraph (d) that I read? You've abandoned it.
Elizabeth A. Nolan: Yes.
Harry A. Blackmun: You abandoned it below and you abandon it here?
Elizabeth A. Nolan: That's correct.
Harry A. Blackmun: As Justice White said as in fact doctrine that protects state interest of the State doesn't want to be protected, I guess we don't apply the doctrine?
Elizabeth A. Nolan: We did abandon it below.
William H. Rehnquist: Why from the point of view the State, isn't the decision of the Supreme Court of Iowa just as good as source of certainty as a decision of a three-judge federal court?
Harry A. Blackmun: You mean if not better?
Elizabeth A. Nolan: It is but we did not have the opportunity of taking this case to the Iowa Supreme Court.
William H. Rehnquist: That's right, you weren't able to go?
Elizabeth A. Nolan: That's right.
Byron R. White: But you could have hanged under your Younger?
Potter Stewart: It really isn't Younger is it? There was no pending -- there was no pending litigation in the state courts. The State Trial Court had decided the case, it had not been appealed, the time for appeal had expired, there was nothing pending in the state court, it's not of the Younger case. Even assuming Younger applies to civil litigation?
Thurgood Marshall: Ms. Nolan, you can't abandon the moot point, can you? I mean you abandon everything else but you can't abandon that can you? I mean the case is moot. It's moot.
Elizabeth A. Nolan: The case is moot but in order to present the other side of this argument before this Court we appear. Thank you.
Warren E. Burger: Do you have anything further Mr. Reynolds, you have two minutes.
James H. Reynolds: Yes, I do Your Honor. I believe I do have that case of Babcock -- Cox versus Babcock and Wilson 471 F.2d 13, page 15 in which they did refer the case back to the court -- to the lower court where --
Speaker: (Inaudible)
James H. Reynolds: Right. But I would like to point out to the Court that at first Boddie versus Connecticut which is the other similar case to this in which the was divorce was terminated or was never started was because of the fact of or was allowed to proceed was because of the failing to pay the fee which is similar to the situation here, and it was never raised by this Court when they determined Boddie versus Connecticut that kind of catches us here after the jurisdictional statement and the matters already been litigated with the whole new case when we come up before the Court that the whole thrust of our argument and that the argument now is that somehow that federalism or committee or judicial husbandry is going to be affected by you not making a decision on this matter is not the case when you look at the fact that there seven or eight state courts decisions all one way and the federal court decisions are the other way with two of the most recent ones, Alaska and I believe Massachusetts finally going -- coming our way and in fact the Fiorentino case in Massachusetts even refer to the fact that the federal court had made a three-judge federal panel had made a decision and that they were very intelligent men and that may have to even give some deference to their opinion.
Byron R. White: But do you think that circuit go against your reasoning?
James H. Reynolds: If it did they didn't catch it.
Speaker: As far as (Inaudible).
James H. Reynolds: Is that the Schiffman or Askew in Florida? I believe so. That one decision and the Iowa decision or the two federal decisions which are against us and I believe they had been decided at the time and we would urge that in light of the decision in-- we see here of England versus Louisiana Medical Examiners in 1964 case that if you're going to apply this doctrine to 1983 cases that you at least accept our case and maybe apply it to future cases but that at least as far as ours is concern since it was never raised at the lower level, that we not be barred from the decision by the Court at this time and that if the injunction is not to be granted, at least to the declaratory judgment part is to be granted. And that there may be questions as far as committee is concerned but at least as far as the question of the declaratory judgment part of it that the Court rule on the matter since the states have barely have differed to the question at least the State of Iowa has and that there's a request and that the class does still exist that the -- its my understanding that the question about name party or party in interest is simply because the fact that the party in interest will in fact argue the constitutional question and I believe that we have done that and that the fact that the matter may have become moot as to this particular named party that the other members of the class still exist in Iowa. And for -- of course information, Mrs. Sosna is back in Island, lives in Green Island, Iowa and has this or with the children but there are still in Iowa the class of the other people who are deprived who had most recently moved into Iowa and that the class does still exist and there is still a case in controversy. That there are still people that are being affected by the in their civil rights by the state court action in the -- under 1983 and therefore --
William H. Rehnquist: If the class may exist but she's not a member of it?
Thurgood Marshall: (Voice Overlap)
James H. Reynolds: Excuse me?
William H. Rehnquist: The class may exist but she is not a member of it?
James H. Reynolds: The class still exists and we're arguing on behalf of the class and on behalf of the appellant which --
Speaker: (Inaudible)
James H. Reynolds: And I think that is only irrelevant as to whether or not her -- as far as the issue on the question of case and controversy is concerned, it is only relevant as far as whether or not we're going to adequately represent the class' interest and I think we are, I think we're trying to argue them and doing I hopefully a good job. And that the fact that as to one member of the class becomes moot whether it's the named one or any other members, this could be constantly changing group because of the fact that it is in fact a durational period and people are moving in and people will fall out of the class but the class will continue to exist no matter what this Court does.
Thurgood Marshall: Would you make the same argument if the only named plaintiff in the class action has drop dead?
James H. Reynolds: I would think so or --
Thurgood Marshall: Are you?
James H. Reynolds: You know had been elected official and had somebody else had taken his place as substitution.
Thurgood Marshall: (Inaudible)
James H. Reynolds: Yes that the class still exists. Thank you.
Warren E. Burger: Thank you. The case is submitted.