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October 3, 1972

Russell William RAMEY, and Robert Cohen, on behalf of each and on behalf of all others similarly situated, Plaintiffs,
Nelson ROCKEFELLER, Governor of the State of New York, et al., Defendants. Toby GUTWILL, on behalf of herself and all others similarly situated, and Richard Yolken, on behalf of himself and others similarly situated, Plaintiffs, v. Nelson ROCKEFELLER, Governor of the State of New York, et al., Defendants

Friendly, Chief Circuit Judge, Mishler, Chief District Judge, and Bartels, District Judge.

The opinion of the court was delivered by: FRIENDLY

FRIENDLY, Chief Circuit Judge:

We deal here with two complaints filed in August and September, 1971, by students living in dormitories at the State University of New York, at Stony Brook, Suffolk County, Long Island. The complaints, both seeking designation as class actions, ask for an injunction against the enforcement and a declaration of the unconstitutionality of § 151 of the New York Election Law, McKinney's Consol. Laws, c. 100, which we reproduce in the margin. *fn1" The individual plaintiffs in the Ramey action are Russell William Ramey, who was a 19 year old sophomore as of the filing of the complaint, and Robert Cohen, who was then aged 20, and was scheduled to graduate in June, 1972. The individual plaintiffs in the Gutwill action are Toby Gutwill, who was a 19 year old sophomore, and Richard Yolken, who was a 22 year old junior. All had attempted to register in Suffolk County during the summer of 1971 and the Ramey plaintiffs, at least, had filed affidavits as requested by the Board of Election, but had then been refused permission to register. On November 17, 1971, an order was entered convening a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284, and a hearing was scheduled for December 20, 1971.

 Meanwhile, proceedings involving similar claims had been instituted in the New York courts. In October, 1971, 176 dormitory residents at Stony Brook, not including the four individual plaintiffs in these actions, but represented by the same counsel who represents the plaintiffs in Ramey, filed a petition in the Supreme Court of New York for Suffolk County for review of the refusal of the Board of Elections to allow them to register. The action, then entitled Blumenthal v. Suffolk County Board of Elections, came before the late Mr. Justice Ritchie who on October 22 ruled that it was error for the Board of Elections summarily to deny registration to the students on the ground that they were dormitory residents. He directed that the petitioners be allowed to reapply before the November election, and that they answer a questionnaire prepared by him which would form the basis for the Board's decision. Eighty-three of the petitioners submitted questionnaires but the Board of Elections accepted only two applicants, a married couple. The rejected 81 sought supplemental relief, the title of the proceeding having been changed to Palla v. Suffolk County Board of Elections, before Mr. Justice DeLuca on November 1. Justice DeLuca found that the affidavits qualified such of the petitioners who had not registered elsewhere for registration at Stony Brook and directed that these, 64 in number, be allowed to register and vote in the November, 1971 election.

 With the Supreme Court's decision in Palla on appeal to the Appellate Division, the proceedings in the New York courts seemed to offer hope of both an authoritative interpretation of the 1971 amendments to § 151 discussed below, and a resolution of the precise issue involved here. Therefore, at the request of counsel for the Ramey plaintiffs, we deferred our hearing pending the outcome of the proceedings in the New York courts.

 The New York courts have now completed their initial consideration of the State proceedings. The Appellate Division for the Second Department reversed the decision of Justice DeLuca, 38 A.D. 2d 84, 327 N.Y.S. 2d 739 (1971), holding, in an opinion by Mr. Justice Benjamin, that the issues of fact must be resolved on the basis of sworn testimony in open court rather than answers to questionnaires or affidavits, and remanded for hearing in each case. Plaintiffs appealed to the Court of Appeals, where the case was considered along with two others relating to students at other New York universities and colleges. On June 7, 1972, a unanimous court, speaking through Judge Scileppi, held the New York statutes to be constitutional and approved the ruling of the Appellate Division for the Second Department in Palla. Palla v. Suffolk County Board of Elections, 31 N.Y. 2d 36, 334 N.Y.S. 2d 860, 286 N.E.2d 247 (1972). Upon the representation of counsel for the plaintiffs in Ramey that he doubted whether the Palla decision was a final judgment subject to Supreme Court review under 28 U.S.C. § 1257, we set argument on defendants' motion to dismiss and plaintiffs' request for injunctive and declaratory relief.

 We confront at the outset a contention by the defendants, citing England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 419, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964), that the judgment in Palla operates as res judicata and precludes our consideration of plaintiffs' constitutional claims. We have an initial puzzlement how this could be so if plaintiffs are right in believing, as we think they are, that Palla had not yet reached the degree of finality required to permit Supreme Court review. See Restatement of Judgments § 41 (1942). There are additional grounds, however, for rejecting defendants' argument. The individual plaintiffs in these actions were not parties to Palla, and the latter was not a class action. *fn2" We know of no basis for holding that the mere fact that the same attorney represented the parties in another action that has gone to judgment makes the latter res adjudicata against his client. Finally, even if we thought the Ramey plaintiffs bound by the determination in Palla, this would not affect the plaintiffs in Gutwill. We therefore turn to plaintiffs' constitutional claims.

 Before discussing these questions, further elaboration of the New York Constitution and statutes will be useful. Article II, section 1 of the Constitution, which can be traced back to Article 7 of the Constitution of 1777, confers the right to vote on every citizen of the age of 21 or over who "shall have been a resident of this state, and of the county, city, or village for three months next preceding an election." This provision is carried forward in § 150 of the Election Law. In light of the Twenty-Sixth Amendment, 21 must now be read as 18, see Formal Op. No. 35-B, VIII Att'y Gen'l Rep., No. IV (Mar.-Apr. 1972), and in light of Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972), three months must now be read as 30 days, see Atkin v. Onondaga County Board of Elections, 30 N.Y. 2d 401, 334 N.Y.S. 2d 377, 285 N.E.2d 687 (1972). Article 2, § 4, which can be traced back to Art. 2, § 3, of the Constitution of 1846, states:

§ 4. [Certain occupations and conditions not to affect residence]
For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while employed in the service of the United States; nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse, or other asylum, or institution wholly or partly supported at public expense or by charity; nor while confined in any public prison.

 The essence of this has long been in the Election Law; *fn3" until 1971 its substance, in somewhat more modern form, constituted the whole of § 151. After adoption of the Twenty-Sixth Amendment the 1971 legislature made this, with some minor modifications, § 151(a), and added the new sections (b) and (c), quoted in footnote 1. Laws of N.Y. 1971, ch. 1096, effective July 2, 1971.

 We find little force in plaintiffs' contention that the singling out of students and certain other classes in § 151(a) is an unconstitutional discrimination. So far as the language, "no person shall be deemed to have gained or lost a residence by reason of his presence . . .," is concerned, this cannot reasonably be read as outlawing all consideration of "presence". Obviously the legislature did not mean to deny that a student's presence in the state meets the element of "physical presence" required to establish a domicile of choice, Restatement (Second) of the Conflict of Laws §§ 15(2)(a), 16 (1971). The words say to us only that presence of a former non-domiciliary as a student within the state is not alone sufficient to supply, nor is absence of a former domiciliary as a student alone sufficient to lose, the required mental element. This reading, which fits comfortably within common law notions of the intention needed for acquiring domicile, has been adopted by the New York Court of Appeals. Palla v. Suffolk County Board of Elections, supra, 31 N.Y. 2d at 47, 334 N.Y.S. 2d at 867.

 We see nothing constitutionally impermissible in New York's having thus enumerated certain categories of persons who, despite their physical presence, may lack the intention required for voting, persons who, in the Supreme Court's words, "present specialized problems in determining residence." Carrington v. Rash, 380 U.S. 89, 95, 85 S. Ct. 775, 779, 13 L. Ed. 2d 675 (1965). Indeed, the Court there implicitly approved a Texas statute doing precisely this, so long as persons within the categories, including students, "are given at least an opportunity to show the election officials that they are bona fide residents." Id. See also 380 U.S. at 91-92 n. 3, 85 S. Ct. 775, 780, and Wilson v. Symm, 341 F. Supp. 8 (S.D. Tex. 1972). It is immaterial that the fertile brains of able counsel have been able to conceive of other categories possessing elements of transiency or involuntariness similar to the five listed in § 151(a). It is not a violation of equal protection to select for individual inquiry categories of citizens presenting the most obvious problems, Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S. Ct. 461, 99 L. Ed. 563 (1955); Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 50-51, 86 S. Ct. 1254, 16 L. Ed. 2d 336 (1966), as long as the ultimate standard is the same for all, as it is here. Beyond this it is worth noting that § 151(a) is not simply a disenfranchising provision; it may often operate as a franchise preserving provision, as for the New Yorker long absent in the service of the United States or as a student in some other state or foreign country.

 We likewise reject the contention that § 151(a) violates § 101(a) of the Civil Rights Act of 1964, 78 Stat. 241, 42 U.S.C. § ...

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