noting apellant's failure to explain how its stated objective would apply to its proposed classification
How later courts described this case
- noting apellant's failure to explain how its stated objective would apply to its proposed classification
- dissent, Wright, J., criticizing the majority’s failure to consider whether severed portion could stand alone
Written by the judges who cited it.
The opinion
Wright, J.,
concurring and dissenting in part. I concur in the majority’s finding that the amendment to R.C. 4123.59(B) violates the Equal Protection Clause of the Fourteenth Amendment, but I would adhere to our first ruling wherein it was determined that the amendment should be severed and the remediation left to the General Assembly. I had personally hoped that remediation would be prompt and retroactive, but that decision should be left to the wisdom of our elected lawmakers.
While I agree with the finding of a violation of the Equal Protection Clause, I do not agree that “the 1976 amendment created a suspect class.” See Graham v. Richardson (1971), 403 U.S. 365, 371-372 , where it was definitively stated that:
“Under traditional equal protection principles, a state retains broad discretion to classify as long as its classification has a reasonable basis. * * * This is so in ‘the area of economics and social welfare.’ * * * But the [United States Supreme] Court’s decisions have established that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close [or strict] judicial scrutiny. Aliens as a class are a prime example of a ‘discrete and insular’ minority * * * for whom such heightened judicial solicitude is appropriate.” (Citations omitted.)
Wholly dependent persons entitled to some award under workers’ compensation laws are clearly not a “discrete and insular” minority. Nor are *123 they entitled to the less demanding “heightened scrutiny” standard of review which has been applied only in cases involving discriminatory classifications based upon sex or illegitimacy. See Plyler v. Doe (1982), 457 U.S. 202 . The most relaxed standard of review is the rational relationship test and that is the one that applies herein. Under that test, “[s]ocial and economic legislation * * * ‘carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality.’ ” Kadrmas v. Dickinson Pub. Schools (1988), 487 U.S__, 101 L. Ed. 2d 399, 412 , 108 S.Ct. 2481, 2489 . The amendment to R.C. 4123.59(B) fails this test for the very reasons set forth by the majority.
Finally, I believe that the entire amendment must be stricken rather than the court picking and choosing words to delete from the amendment. The test for severability was set forth in Geiger v. Geiger (1927), 117 Ohio St. 451, 466 , 160 N.E. 28 , 33:
“ ‘(1) Are the constitutional and unconstitutional parts capable of separation so that each may be read and may stand by itself! (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?’ ” (Emphasis added.)
As conceded by the majority, the previous version of R.C. 4123.59 was constitutional; it is the amendment which violates the Equal Protection Clause, and it is clear that the General Assembly meant in that amendment to give a lesser award to those situated as the appellee for reasons that still remain unclear. The phrase selected for severance by the majority — “if the death is due to injury received or occupational disease first diagnosed” —does not stand by itself as required by the first prong of the test in Geiger .
Further, for this court to “amend” the amendment and establish that all recipients are entitled to a possible award of one hundred percent of the statewide average weekly wage would be contrary to the rules of statutory construction, notwithstanding the presence of R.C. 1.50. The United States Supreme Court in Frost v. Corporation Comm. of Okla. (1929), 278 U.S. 515 , addressed the issue of the severability of an unconstitutional amendment that violated the Equal Protection Clause from a previously enacted constitutionally valid statute. The court reasoned:
“* * * If valid, its practical effect would be to repeal by implication the requirement of the existing statute * * *. But since the amendment is void for unconstitutionality, it cannot be given that effect, ‘because an existing statute cannot be recalled or restricted by anything short of constitutional enactment.’ * * *
“Here it is conceded that the statute, before the amendment, was entirely valid. When passed, it expressed the will of the legislature which enacted it. Without an express repeal, a different legislature undertook to create an exception, but, since that body sought to express its will by an amendment which, being unconstitutional, is a nullity and, therefore, powerless to work any change in the existing statute, that statute must stand as the only valid expression of the legislative intent.” (Emphasis added.) Id. at 526-527 . (See, also, Eberle v. Michigan [1914], 232 U.S. 700 .)
The intent of the entire 1976 amendment was to increase benefits in *124 an unconstitutional manner and nullify a valid statute. As such, it is not possible to meet the requirements of the second test, in Geiger, supra. We should follow the rationale of Geiger and Frost, supra, and the dictates of R.C. 1.50, and adhere to this court’s first decision to sever the unconstitutional amendment. Having done that, we will have performed our role and our elected lawmakers can then perform their role.
Accordingly, I must respectfully dissent from the reasoning and result achieved today, well meaning though it may be.