(concurring).
The legal problems of this case are complex, but the practical problems may prove to be even more formidable. This ease could trigger a quantity of frivolous litigation in the federal courts motivated by the natural desire of prisoners for a trip home to testify, even if the trip has to be under guard.
As the opinion of the court points out, for many years courts have followed the rule that persons (including federal prisoners) removed from their state of domicile by legal orders do not thereby lose their previous domicile. Cohen v. United States, 297 F.2d 760 (9th Cir. 1962); American Surety Co. of New York v. Cosgrove, 40 Misc. 262, 81 N.Y.S. 945 (1903); Metropolitan Life Ins. Co. v. Jones, 192 Ark. 1145, 97 S.W.2d 64, 66 (1936); United States v. Gronich, 211 F. 548 (W.D.Wash.1914); Neuberger v. United States, 13 F.2d 541, 542-543 (2d Cir. 1926). In general, this rule serves to protect the legal rights of prisoners.
The corollary to the rule that imprisonment in another state did not occasion a change of domicile was, however, that during a prisoner’s incarceration outside of his home state, as a matter of law he could not, even if he desired to, effect a change of domicile because his presence in the state of imprisonment was deemed coerced rather than voluntary. United States v. Stabler, 169 F.2d 995 (3d Cir. 1948); Shaffer v. Tepper, 127 F.Supp. 892 (C.D.Ky.1955); Restatement (Second) of Conflict of Laws § 17 (1971).
The opinion of the court in this case rejects the application of the rule just stated above as an absolute and irrebuttable presumption, and I concur. But I also feel that the rule should properly be characterized as a strong presumption capable of being overturned only by allegation and proof of change (or changes) of material circumstances bearing on domicile. I read the court’s opinion as agreeing.
The two fundamental considerations in establishing domicile for purposes of state citizenship are residence in the state and intention to remain there permanently. Napletana v. Hillsdale College, 385 F.2d 871 (6th Cir. 1967). Both of these factors are usually subject to proof by objective facts. In the case of a federal prisoner in an out-of-state prison, however, his compelled presence *1128is certainly not identical with “residence” in its normal usage. And a declaration of intent to remain in the state concerned is greatly weakened (particularly for a person serving a life term) by the obvious lack of choice. The only proofs which come quickly to mind which a federal prisoner might substitute for the usually available objective proofs of domicile would be the establishment of an apparently permanent residence in the state of imprisonment by the prisoner’s immediate family. See Metropolitan Life Insurance Co. v. Jones, supra.
Accepting (as I do) the proposition in the court’s opinion that domicile is generally a question of fact for the trial judge, the great majority of domicile questions posed by federal prisoner diversity cases should be amenable to resolution by affidavits filed on motion for summary judgment without the expense and risk of cross-country prisoner travel under guard.