Butte Community Union v. Lewis

No. 85-449

IN THE SUPREME COURT OF THE STATE OF MONTANA

1986

BUTTE CObQ4UNITY UNION, et al.,

Plaintiffs and Respondents,

DAVE LEWIS, as Director of the

Montana State Department of Social

and Rehabilitation Services,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis & Clark,

The Honorable Thomas Honzel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Russell E. Cater argued, Special Asst. Atty. General,

SRS, Helena, Montana

Michael S. Becker argued, Special Asst. Atty. General,

Helena, Montana

For Respondent :

James Goetz argued, Eozeman, Montana

!tussell A. LaVigne, Jr., Montana Legal Services,

Helena, Montana

Peggy Verberg, Missoula, Montana

Robert L. Deschamps, Missoula County Attorney,

Missoula , Montana

For Amicus Curiae:

James P. Reynolds, Helena, Montana; Butte Ministerial

Association, City of Anaconda, City of Walkerville,

International Union of Operating Engineers, Local 3 7 5 ,

Butte, Women's Lobbyist fund

Robert Hayes, New York, New York; National Coalition

for the Homeless

Gough, Shanahan, Johnson & Waterman; Joseph P. Mazurek,

Helena, Montana; Montana Catholic Conference; Helena,

Montana

Submitted: December 6, 1985

Decided: January 16, 1986

Filed: JAN 1 6 19863

Clerk

Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of

the Court.

The District Court of the First Judicial District issued

a preliminary injunction enjoining Dave Lewis, Director of

Montana's Department of Social and Rehabilitation Services

(SRS), from implementing certain provisions of House Bill 843

(Chapter No. 670, 1985 Mont. Laws). Lewis appeals. We

affirm the issuance of the preliminary injunction and issue a

permanent injunction for the same purpose.

In response to a complaint filed by Butte Community

Union in Februa.ry of 1984, the Honorable Arnold Olsen issued

a preliminary injunction June 29, 1984, prohibiting the

Department of Social and Rehabilitation Services (SRS) from

implementing proposed regulations establishing AFDC guide-

lines as the guidelines for determining general assistance

(GA) benefits. Thereafter, the 1985 Montana Legislature

enacted House Bill 843 establishing cash payment levels for

GA recipients in accord.ance with Judge Olsen's order. House

Bill 843 also eliminates GA payments to able-bodied

individuals under thirty-five who have no minor dependent

children and substantially restricts GA payments to

able-bodied individuals between thirty-five and fifty who

have no minor dependent children.

On June 3, 1985, Butte Community Union (respondents)

filed an amended complaint challenging the constitutionality

of HB 843 and requesting the court to issue a preliminary

injunction forbidding SRS from implementing that part of

HB 843 which restricts or denies GA benefits to able-bodied

individuals with no minor children. Following a hearing and

briefing by the parties, the trial court issued a preliminary

injunction on July 1, 1985, the date HR 843 was to go into

effect.

In its findings, conclusions and order, the trial judge

held that art. XII, section 3 ( 3 ) of the Montana. Constitution

establishes a fundamental right to welfare "for those who, by

reason of age, infirmities, or misfortune may have need for

the aid of society." That section states:

( 3 ) The legislature shall provide such

economic assistance and social and

rehabilitative services as may be

necessary for those inhabitants who, by

reason of age, infirmities, or

misfortune may have need for the aid of

society.

He further held that respondents (plaintiffs below) raised

serious questions concerning whether HB 8 4 3 establishes an

impermissible, discriminatory constitutional classification,

thus violating the respondents' constitutional guarantee of

equal protection. Finally, he held that a preliminary

injunction should issue because respondents established a

prima facie case that HB 8 4 3 is unconstitutional and because

they showed that it is "doubtful whether or not they will

suffer irreparable injury before their rights are fully

litigated. "

The preliminary injunction was issued and SRS appeals,

raising the following general issue:

Whether the defendant, Dave Lewis, as a public official,

should be enjoined from implementing those provisions of

FB 8 4 3 which restrict or deny general assistance benefits to

able-bodied persons under the age of fifty who do not have

minor dependent children?

The following sub-issues are assigned for review:

1. Whether the District Court used an incorrect stan-

dard for issuing the preliminary injunction?

2. Whether HB 8 4 3 violates art. XII, section 3 (3), of

the Montana Constitution?

3. Whether HB 843 violates equal protection or due

process constitutional guarantees?

4. Whether HB 843 violates the Montana Human Rights

Act?

We hold that Dave Lewis, as a public official, should be

permanently enjoined from implementing the pertinent

provisions of HB 843. However, our reasons for this

injunction differ markedly from those of the trial judge. We

find that the Montana Constitution does not establish a

fundamental right to welfare for the aged, infirm or

misfortunate. However, because the constitutional convention

delegates deemed welfare to be sufficiently important to

warrant reference in the Constitution, we hold that a

classification which abridges welfare benefits is subject to

a heightened scrutiny under an equal protection analysis and

that HI3 843 must fall under such scrutiny.

Respondent contends that the result of this legislation

is forbidden by the Constitution. Respondent argues the

Legislature must fund welfare for the misfortunate. However,

because the legislation at issue today is discriminatory in

nature, determining its constitutionality calls for equal

protection analysis. It is not necessary that we address the

broader question of whether there is a constitutional

directive to the Legislature for the funding of welfare which

can not be avoided under any set of circumstances.

The fourteenth amendment to the Federal Constitution and

article 11, section 4 of the Montana Constitution provide

that "[nlo person shall be denied the equal protection of the

laws." The equal protection clause guarantees that similar

individuals will be dealt with in a similar manner by the

government. J. Nowak, R. Rotunda and J.N. Young,

Constitutional Law, Chpt. 16, § 1 (2d ed. 1983).

Equal protection analysis traditionally centers on a

two-tier system of review. If a fundamental right is

infringed or a suspect classification established, the

government has to show a "compelling state interest" for its

action. If the right is other than fundamental, or the

classification not suspect, the government has only to show

that the infringement or classification is rationally related

to a governmental objective which is not prohibited by the

Constitution. J. Nowak, supra..

In the instant case, the trial judge held the right to

welfare to be fundamental. We can not agree. In order to be

fundamental, a right must be found within Montana's

Declaration of Rights or be a right "without which other

constitutionally guaranteed rights would have little

meaning." In the Matter of C.H. (Mont. 1984) , 683 P.2d 931,

940, 41 St.Rep. 997, 1007. Welfare is neither.

Art. XII, § 3 (3) of the 1972 Montana Constitution, the

section on which the trial judge relies, is not part of the

Declaration of Rights. Art. 11, 5 3 is the only section in

the Declaration of Rights which arguably could crea.te a right

to welfare. It states:

Inalienable rights. All persons are born free and

have certain inalienable rights. They include the

right ... of pursuing life's basic necessities

Mont. Const., art. 11, S 3(1972). The official committee

comment to that provision. states:

The intent of the committee on this point is not to

create a substantive right for all for the

necessities of life to be provided by the public

treasury.

There is no constitutional right to welfare within the

Montana Constitution's Declaration of Rights. Further, the

right to welfare is not a right upon which constitutionally

guaranteed rights depend. In fact, welfare is more properly

characterized as a benefit. Since welfare is not a

fundamental right, strict scrutiny does not apply and the

State need show something less than a compelling state

interest in order to limit that right.

Traditionally courts have applied a "rational basis"

test for equal protection analysis where a fundamental right

is not implicated. Rational basis is easily satisfied. The

more stringent test, strict scrutiny requiring the state to

show a compelling state interest, is seldom satisfied.

The United States Supreme Court only recently has begun

to recognize the problem the two-tier system creates. G.

Gunther, - Search - Evolving Doctrine - -a Changinq Court:

In of on

- Model - - a Newer Equal Protection, 86 Harvard L.Rev. 1,

A for

17-20 (1972). Initially, the Court was particularly

concerned with gender-based discrimination. Unable, or

unwilling, to recognize gender as a suspect class, the Court

still recognized that Congress should not be able to

discriminate between the sexes on any "conceivable basis."

The Court therefore adopted, in Craig v. Boren (1976), 429

U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, 407, the

middle-tier of review for analyzing gender-based

discrimination. The Court said such d.iscrimination will be

upheld only when the government can show that the

classification it has used is "substantially related" to an

"important governmental objective."

Variations of this middle-tier test, or at least a

failure to apply either of the other tests, have been

recognized in discrimination cases involving illegitimate

children (New Jersey Welfare F.ights Organization v. Cahill

(1973), 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543, and

Weber v. Aetna Casualty & Surety Co. (1972), 406 U.S. 164, 92

S.Ct. 1400, 31 L.Ed.2d 768); limitations on the right to vote

(Rosario v. Rockefeller (1973), 410 U.S. 752, 93 S.Ct. 1245,

36 L.Ed.2d 1); and mandatory retirement for police officers

(Police Department of the City of Chicago v. Mosley (1972),

408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212), to name a few.

Yet, the United States Supreme Court has consistently

refused to apply this middle area of review to welfare and

other social economic cases. In 1977, the Supreme Court,

reversing the Idaho Supreme Court, held constitutional a

statute denying unemployment benefits to otherwise eligible

day-time students while granting them to eligible night-time

students because the classification has some "reasonable

basis", despite its imperfections. Idaho Department of

Employment v. Smith (1977), 434 U.S. 100, 101-102, 98 S.Ct.

327, 328, 54 L.Ed.2d 324, 327-328. And, in Schweiker v.

Wilson (1981), 450 U.S. 221, 231, 101 S.Ct. 1074, 1081, 67

L.Ed.2d 186, 195-196, the Court upheld a Social Security Act

classification giving reduced Medicaid benefits to persons

institutionalized in certain public mental care institutions,

stating only that the statute did not discriminate aqa.inst

all mentally-ill people as a class. However, in their

dissent, Justices Powell, Brennan, Marshall and Stevens

stated they would have engaged in a review of the

reasonableness of the classification.

The middle area of review has been discussed by several

constitutional law scholars and Justice Marshall in many of

his dissents. Each scholar has attached a different theory

to the area. Gunther, the first to write of the Court's new

direction, refers to the middle-tier as a tendency on the

part of the Court to adopt one overarching level of review -

is there an appropriate governmental interest furthered by

the differential treatment? Do the legislative means

substantially further the legislative ends? G. Gunther,

supra, pp. 20-24.

Nowak calls the middle-tier test a "demonstrable basis

standard of review" where the government must show a factual

basis for the discrimination.

Under the intermediate demonstrable basis standard,

a classification based on a neutral classification

[as opposed to a suspect classification] will be

Fnva-lid if the state cannot demonstrate a factual

relationship between a state interest capable of

sustaining analysis and the means chosen to advance

that interest.

2. Nowak, Realigning the Standards - Review under - Equal

of the

Protection Guarantee - Prohibited, Neutral, and Permissive

Classifications, 62 Georgetown Law Journal 1071, 1082 (1974).

Marshall, meanwhile, chastises his brothers for failing

to acknowledge and identify a specific middle-tier standard

of review despite relying on such a standard in numerous

cases. In Dandridge v. Williams (1970), 397 U.S. 471, 90

S.Ct. 11-53, 25 L.Ed.2d 491, Marshall states in his dissent

that welfare does n.ot fit in the two classifications and that

classifications in welfare favor an interventionist approach

on the part of the Court. He then enunciates the following

test:

[Cloncentration must be placed upon the character

of the classification in question, the relative

importance to individuals in the class

discriminated against of the governmental benefits

that they do not receive, and the asserted state

interests in support of the classification.

Dandridge, 397 U.S. at 520-521, 90 S.Ct. at 1180, 25 L.Ed.2d

at 522-523.

This Court need not blindly follow the United States

Supreme Court when deciding whether a Montana statute is

constitutional pursuant to the Montana Constitution. See

Justice Brennan's dissent in Idaho Department of Employment

v. Smith (19771, 434 U.S. at 103, 98 S.Ct. at 329, 54 L.Ed.2d

at 329, advocating that Idaho determine whether its

Constitution allows the previously discussed d.enia1 of

employment benefits to day-time students, as well as his

article, State Constitutions - - Protection - Individual

and the of

Rights, 90 Harv.L.Rev. 489 (1977).

We will not be bound by decisions of the United States

Supreme Court where independent state grounds exist for

developing heightened and expanded rights under our state

constitution. This position was last articulated by our

Court in Pfost v. State (Mont. 1985), P.2d t 42

St.Rep. 1957. Justice Sheehy writing for the majority said:

Art. 11, § 4, of our State Constitution provides in

part that I1[n]o person shall be denied the equal

protection of the laws." Art. 11, § 4, 1972 Mont.

Const. That provision of our State Constitution,

though similar in wording to the last clause of the

Fourteenth Pmendment of the Federal Constitution

provides a separate ground on which rights of

persons within this state may be founded, and under

accepted principles of constitutional law such

rights must be at least the same as and may be

greater than rights founded on the federal clause.

Thus, states may interpret their own constitutions

to afford greater protections than the Supreme

Court of the United States has recognized in its

interpretations of the federal counterparts to

state constitutions. City and County of Denver v.

Nj-elson (1977), 194 Colo. 407, 572 P.2d 484.

Federal rights are considered minimal and a state

constitution may be more demanding than the

equivalent federal constitutional provision.

Washakie Co. Sch. Dist. No. One v. Herschler (Wyo.

1980), 606 P.2d 310, cert.den. 449 U.S. 824, 101

S.Ct. 86, 66 L.Ed.2d 28. This is true even though

our state constitutional language is substantially

similar to the language of the Federal

Constitution. Deras v. Myers (1975), 272 Or. 47,

535 P.2d 541, 549 n.17.

Pfost, P.2d at , 42 St.Rep. at 1963-1964.

We pr~ceed to develop our own middle-tier test for

determining whether HB 843 violates the Montana

Constitution. We do so because although a right to welfare

is not conta.ined in our Declaration of Rights, it is

sufficiently important that art. XII, sec. 3 (3) directs the

Legislature to provide necessary assistance to the

misfortunate. A benefit lodged in our State Constitution is

an interest whose abridgement requires something more than a

rational relationship to a governmental objective.

A need exists to develop a meaningful middle-tier

analysis. Equal protection of law is an essential

underpinning of this free society. The old rational basis

test allows government to discriminate among classes of

peopl-e for the most whimsical reasons. Welfare benefits

grounded in the Constitution itself are deserving of great

protection.

In reviewing the textual discussions by constitutional

authorities and the insightful dissents of Justices Marshall,

Rrennan, Powell, and Stevens we have distilled a test we

think is sound. Where constitutionally significant

interests are implicated by governmental classification,

arbitrary lines should be condemned. Further, there should

be balancing of the rights infringed and the governmental

interest to be served by such infringement.

We hold that a finding that HB 843 is constitutional

requires the State to demonstrate two factors: I) that its

classification of welfare recipients on the basis of age is

reasonable; and 2) that its interest in classifying welfare

recipients on the basis of age is more important than the

people's interest in obtaining welfare benefits.

A reasonable classification is one which is not

arbitrary. The State has failed to show that mi-sfortunate

people under the age of 50 are more capable of surviving

without assistance than people over the age of 50. Broad

generalizations, concluding that those who are 49 years of

age can retrain or relocate while those who are days older

cannot, are arbitrary.

Next, the State's objective in enacting HB 843 - saving

money - must be balanced against the interest of misfortunate

people under the age of 5 0 in receiving financial assistance

from the State. The trial record does not show the State to

be in such a financially unsound. positi-on that the welfare

benefit, granted constitutionally, can be abrogated.

This Court does not pass on the merits of welfare. The

respective members of the Court may well have different views

about the public policy justifying public assistance. These

matters are not properly treated by an appellate court. Our

task is simply to determine constitutionality of the statute.

On that subject we are of one mind.

We find the provisions of HB 843, which restrict or deny

general assistance benefits to "able-bodied persons under the

age of fifty who do not have minor dependent children", to be

unconstitutional. A permanent injunction is hereby issued

prohibiting Dave Lewis, Director of SRS, from implementing

those provisions.

We concur:

Chief Justice

Mr. Justice John C. Sheehy specially concurring:

In addition to my concurrence with the majority opinion,

I wish to state some observations.

For the purposes of this case, I am willing to concede

that a fundamental right to welfare for the individuals

affected does not exist. There is however a

constitutionally-mandated duty upon the legislature to

provide economic assistance "as may be necessary" for the

misfortunate who need the ai-d of society. Art. XII, S 3 (3).

When that duty is shirked by the legislature, upon whatever

pretense, the class discriminated against has at least a

constitutional right for redress in the courts. I am unable

to distinguish the fine line between "fundamental right" for

the discriminated class and the constitutional right for

redress.

I do not wish to be bound. by the statement in the

ma.jority opinion that fundamental rights under the Montana

Constitution must be found within the Declaration of Rights,

Art. 11. The Article holds itself open to unenumerated

rights which may not be denied to the people. Art. 11, S 34.

I concur w i t h J u s t i c e Sheehy's concurrence.

Mr. Justice L. C. Gulbrandson specially concurring.

I concur in the result and in the decision that the

right to welfare is not a fundamental right but I do not

concur in the adoption of a middle-tier standard of review in

this case.

"*Inmy view, the legislation under attack does not meet

the existing rational basis test and should therefore be

declared unconstitutional. Thus, I do not perceive a need to

adopt an additional test requiring a higher standard of

review for legislation that may be enacted in the future. It

appears that the newly adopted test, described as a

middle-tier standard of review, actually replaces the

rational basis test, even though no party to the action

argued for its adoption.

In my opinion, the majority, by requiring the

legislature to establish a factual record in its

classification procedure, may have limited possible future

legislative alternatives, because of time constraints

existing in this matter, to the point where adequate welfare

benefits may not be available to the needy.

Mr. Chief Justice J. A. Turnage:

I concur in the specially concurring opinion of Mr.

Justice L. C. Gulbrandson.

ef Justice