The opinion
Levin, J.
(dissenting). The plaintiffs claim that the act denies equal protection of the laws because it “soaks the rich.” The majority adopts plaintiffs’ conclusion and holds that the act does indeed deny equal protection but for a converse reason — because *159 its impact can be avoided or reduced by those with tax-sheltered incomes. I find myself in disagreement with both views.)
The act, PA 1965, No 335 (MCLA § 330.651 et seq. [Stat Ann 1965 Cum Supp § 14.870(101) et seq.]), requires parents of mentally retarded minors residing in State institutions to reimburse the State for the cost of their care. 1 The amount of the liability is “originally determined” by the use of a graduated schedule based on the parent’s taxable income as computed on his last Federal income tax return. Under the schedule those with a taxable income of less than $5,000 have no liability to make any reimbursement for the cost of caring for their children. Parents with a taxable income of $5,000 are required to pay $20 monthly. The schedule continues to graduate in increments of $500 of taxable income and monthly payments of $5 or $10 per increment so that those with a taxable income of $20,000 or more are required to pay $210 per month. 2
If a parent believes that his monthly liability determined under the schedule “does not accurately reflect his current income status or his ability to pay due to changed circumstances or otherwise,” he may request a determination of liability by the department of revenue. If dissatisfied with the department’s determination, he may appeal to the probate court of the county of residence of the patient. The probate court’s determination is appealable “as in other eases.” 3
The monthly payment determined by the department or the probate court may not in any event ex *160 ceed that established by the statutorily prescribed schedule. 4 This, of course, means, as the majority point out, that if a parent has insulated his income from Federal taxation he may significantly reduce or escape altogether his liability even though his real income is the same or greater than that of other parents whose income is not so tax sheltered.
The question before us, however, is not whether the reimbursement formula chosen by the legislature operates with absolute fairness or whether we can conceive of a case where a parent may escape its snare but rather whether it is a rational formula which produces generally fair results. 5 The plaintiffs have not demonstrated, nor is there any evidence that the use of Federal taxable income as the “original” and maximum basis for determining liability to make reimbursement under this act has permitted particular parents to avoid or disproportionately reduce their reimbursement liability, let alone that this has occurred in such a significant number of cases as would justify this Court’s conclusion that the legislatively selected criterion is unconstitutional. The majority’s thesis, absent such a showing, is based on an unproven hypothesis. Important legislation should not be declared unconstitutional on theoretical grounds. “The point is that lack of equal protection is found in the actual existence of an invidious discrimination [citations omitted], not in the mere possibility that there will be like or similar cases which will be treated more leniently.” Queen-side Hills Realty Co., Inc. v. Saxl (1945), 328 US 80, 84, 85 ( 66 S Ct 850 , 90 L Ed 1096 ). 6
*161 The annual redetermination of the parent’s liability provided for in this act is far superior to the practice under prior law of making a once-and-for-all determination, as is well illustrated by what occurred in the companion case of In re Raseman Estate (1969), 18 Mich App 91 . 7 For annual redetermination to be administratively feasible, accurate current information as to a parent’s financial status must be readily obtainable. One can well understand the legislature’s conclusion that in most cases the parent’s taxable income on his last Federal tax return is likely to reflect his ability to pay more accurately than any other readily available index. 8 We should not lightly reject this legislative judgment.
Contrary to the plaintiffs’ contentions, the statute makes ample provision for administrative and judicial review at the instance of a parent who claims that application to him of the statutory schedule would require payment of an excessive amount. The standard on review, the parent’s current income status and ability to pay, is clearly enunciated as the *162 controlling guideline. 9 There are adequate safeguards for the protection of persons aggrieved by the administration of the act. 10
Plaintiffs assert that the legislature may not confer on the probate court the power to review administrative determinations. However, the Constitution expressly provides that the jurisdiction, powers and duties of the probate court “shall be provided by law.” Const 1963, art 6, § 15. Since under this statute the probate court’s power of review is to be exercised judicially, we need not consider the question which evenly divided our Supreme Court in Buback v. Governor (1968), 380 Mich 209 .
Nor can I accept the majority’s conclusion that because Congress may change the definition of taxable income, the incorporation by reference of the Federal definition was an unconstitutional delegation of power by the Michigan legislature. Again, this objection is entirely theoretical. Since the passage of the act now before us, there has been no change in the definition of the factors which when combined determine taxable income except for a *163 few new concepts affecting a small number of taxpayers. 11 It is improbable that any of tbe parents liable under this act would be affected by these somewhat esoteric changes and, if they are, their liability can easily be redetermined without regard to these changes.
If Congress should enact a significant change in the definition of taxable income, the Michigan legislature would have ample time in the legislative session following the year of the enactment of the Federal change and before the May 1 filing date prescribed by §§ 6 and 9 of this act either to (i) adopt the change in the Federal definition, or (ii) reject the change and formulate and enact a different basis of reporting income under this act. This would avoid both any delegation of legislative power and the infeasibility of requiring that reports from parents be based on the Federal law as it was before enactment of the change.
There is no need to invalidate this statute. It can and should be saved. See Alaska Steamship Co. v. Mullaney (CA 9, 1950), 12 Alaska 594 (180 F2d 805), where the court of appeals for the ninth circuit rejected a similar attack on an Alaska statute holding that it would be time enough to consider the claim of unlawful delegation of power when the Federal tax definition is in fact changed. 12
*164 The plaintiffs challenge sections 6 and 9 of the act 13 which require a parent to submit a signed copy of his most recent Federal income tax return, claiming that this violates the confidentiality provisions of the Internal Revenue Code ( 26 USC §§ 6103 , 7213 [a]). The question of whether the Federal confidentiality provisions protect against production of tax returns in private civil litigation has been the subject of diverse judicial decisions. 14 Most courts have concluded that the confidentiality provisions prevent only the Federal government from disclosing income tax returns and, accordingly, a private litigant can be required to produce a copy of his Federal income tax return. 15 The United States Supreme Court has intimated it would adopt this view. St. Regis Paper Co. v. United States (1961), 368 US 208, 219 ( 82 S Ct 289 , 7 L Ed 2d 240, 249 ).
I see no basis for a distinction between production compelled by a court in private litigation and production compelled by a State statute in connection with an administrative determination. Since it is our duty to uphold the constitutionality of this act if at all possible, we ought to adopt the construction of the Federal confidentiality provisions — a construction adopted by most courts — which would *165 sustain the Michigan legislative requirement. 16 Accordingly, I would hold that the requirement that a parent furnish a copy of his last Federal income tax return does not violate the Federal confidentiality provisions.
The plaintiffs’ primary contention is that the graduation provided for in the act’s reimbursement schedule is unfair and is an unconstitutional classification denying equal protection of the laws to those who, because they have higher taxable income, are required to pay greater monthly amounts than others less fortunate.
I can think of no basis of classification for social legislation with greater reality and general acceptance than one based on economic differences. No one would seriously argue that the legislature may not provide free social services to indigent persons. Nevertheless, persons who desire and can afford the same service must themselves pay for the desired service. If the service is a necessity required for a person’s support, a court could compel someone of sufficient financial ability, obligated to provide such support, to furnish the necessity. 17 Similarly, if the State provides the needed service, the State can demand reimbursement from the financially able person owing the support obligation.
Nor is the legislature’s choice limited to the two extremes, no reimbursement or full reimbursement. It may, as it did in this case, require partial reimbursement on a graduated basis according to ability *166 to pay. If the graduated amounts are reasonable the hind of invidious discrimination and irrationality which alone would justify a declaration of unconstitutionality is absent. Cf. Mallatt v. Luihn (1956) 206 Or 678 ( 294 P2d 871 ), where the Oregon Supreme Court considered at length many of the arguments advanced by the plaintiffs in this case and sustained as constitutional a reimbursement statute providing for graduated liability based on the relative’s gross income disclosed in his State income tax return. 18
Since the reimbursement requirement is an obligation imposed upon one liable to provide support for services rendered, the act does not impose a tax. Accordingly, plaintiffs’ arguments premised on the supposition that the reimbursement requirement is a tax need not be further considered.
Equally without merit is the argument that the provision in the act which exempts parents of a mentally retarded child who has attained the age of 21 from liability discriminates against parents whose children are still minors. The responsibility of parents to provide for the care and support of their minor children is a universal ethic. 19 Classifications distinguishing adults and minors have been *167 judicially approved in many cases. 20 Generally, competent adults are emancipated and no longer a financial burden on their parents. The legislature need not require parents of retarded adults to make reimbursement in order to require reimbursement from parents of a retarded minor. 21
Nor is there anything irrational in the legislative judgment that parents whose mentally retarded children have been patients in public institutions for 15 years should be relieved of further responsibility even if the child has not attained 21 years of age. 22 The legislature could rationally conclude that, after 15 years of institutionalization, it is too much to expect even a parent to continue to contribute to the child’s support and that the State should assume full responsibility. The Constitution does not bar this humane dispensation by requiring, in the name of equal protection, that the parents of children institutionalized for shorter periods be relieved of all financial responsibility. 23 Adoption of plaintiffs’ contention might well constrain the legislature to eliminate this dispensation altogether, a result without benefit to the plaintiffs or other parents liable to make reimbursement.
Similarly, the fact that the legislature does not require reimbursement from financially able parents of blind 24 and deaf 25 children for services provided their children does not preclude requiring reim *168 bursement from a mentally retarded child’s parents of sufficient ability. The services provided one group of afflicted children differ from those provided the other groups. The cost of the several programs differs both in relative and absolute amounts. Without the supplementation to State funds that parental reimbursement contributions provide, the legislature might decide to curtail the current program for the care of mentally retarded children. Faced annually with the need to provide appropriations to finance the program for mentally retarded children, the legislature may in its wisdom seek parental financial assistance for one program even though a similar reimbursement requirement is not imposed as to all State programs for the care of the handicapped.
“Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others. The prohibition of the equal protection clause goes no further than the invidious discrimination.” Williamson v. Lee Optical Co. of Oklahoma, Inc. (1954), 348 US 483, 489 ( 75 S Ct 461 , 99 L Ed 563 ). 26 (Citations omitted.)
Plaintiffs also argue that Const 1963, art 8, § 8 27 obligates the State to provide for the mentally handicapped, that this obligation is nondelegable *169 and, thus, that the State cannot require reimbursement from relatives. In a companion case we considered and rejected that argument. See In re Raseman Estate, supra. We concluded that Const 1908, art 11, § 15 (the predecessor of Const 1963, art 8, § 8) is not self-executing. 28
Plaintiffs also argue that a classification of taxpayers based on whether they are parents of mentally retarded minors is an unreasonable classification. Starting with that premise, the plaintiffs contend that the State cannot require parents of mentally retarded minors alone among taxpayers to reimburse the State for the child’s care. This argument was also considered and rejected in Baseman. We said there that a similar classification in a reimbursement statute, i.e., relatives of a mentally diseased person, was a proper and reasonable one having in mind the special benefit to and moral duty of those upon whom the burden of making reimbursement was imposed.
Assuredly, the State has, as plaintiffs contend, an interest in and responsibility for providing for the care of the mentally retarded. But this does not mean that the State has the exclusive responsibility for providing such care. Surely parents of a mentally retarded child are no less concerned than the State in the child’s protection and development.
It is the primary responsibility of the legislature, not of the judiciary, to establish priorities and allocate available governmental resources. In a more abundant society government may well be able to assume total responsibility for the care of all the handicapped and helpless.
It has never been thought that just because the government provides free service to the indigent it *170 must • also provide free corresponding service to those financially able to care for themselves. The State is not obliged to dole out free food to the citizen of well nourished substance because it feeds the hungry poor.
In this connection I recognize that the expenditure of public funds has been required where the United States Supreme Court has concluded that equal opportunity is a transcendent value 29 and that if a government decides to make services and facilities available it may not do so in an arbitrary manner and deprive some potential recipients of benefits on legally irrelevant or legally impermissible grounds. 30 Recognizing these limitations on the power of government, it seems to me that at this time in the development of the law we cannot properly say that the Michigan legislature enacted an unconstitutional statute when it required contributions for the support of State institutionalized, mentally retarded children to be made by those parents of such children who can afford to do so.
. We have not yet reached the era when governments have the resources to do all things that should or might be done, when governments have *171 the legally enforceable duty to lift the burden of affliction from those who, like the plaintiffs and their child, are its accidental victims, when governments have the legally enforceable duty when they do act to distribute funds appropriated to relieve a particular misfortune to each according to his need and to each without regard to his need, when the right which plaintiffs seek to establish can be judicially recognized.
I would reject plaintiffs’ attack on the constitutionality of this act.
Husbands and wives of mentally retarded persons are also liable but this is, no doubt, a de minimis category. MOLA § 330.654 (Stat Ann 1965 Cum Supp § 14.870 [104] ).
MCLA § 330.658 (Stat Ann 1965 Cum Supp § 14.870[108]). No claim is made, nor is there any evidence, that the cost of providing care is less than $210 per month.
MCLA § 330.660 (Stat Ann 1965 Cum Supp § 14.870[110]).
MOLA § 330.660 (Stat Aim 1965 Cum Supp § 14.870[110]).
See Mallatl v. Luihn (1956), 206 Or 678 ( 294 P2d 871 ); Dominion Hotel, Inc. v. Arizona (1918), 249 US 265 ( 39 S Ct 274 , 63 L Ed 597 ); Norvell v. Ilinois (1963), 373 US 420, 423 ( 83 S Ct 1366 , 10 L Ed 2d 456 ).
See McGowan v. Maryland (1961), 366 US 420, 426, 428 ( 81 S Ct *161 1101 , 6 L Ed 2d 393 ); Hodge Drive-It-Yourself Co. v. Cincinnati (1931), 284 US 335, 338 ( 52 S Ct 144 , 76 L Ed 323 ).
The annual redetermination is provided for in § 9, MCLA § 330.659 (Stat Ann 1965 Cum Supp § 14.870 [109]).
Under MCLA § 330.21 (Stat Ann 1956 Rev § 14.811), the relatives of a mentally diseased person admitted to a State institution can, if they have sufficient means for that purpose, be required by court order to pay for the care and maintenance of such person in the State institution and the eourt shall “specify the amount” so to be paid. In Baseman an order was entered committing the mentally diseased person as a “full-pay patient” and the estate of the patient and his father were required to pay “one hundred per cent of the cost” of his maintenance. After entry of the order, some payments were made but over the years large arrearages accumulated during which period the daily cost of care increased by over 400% without any re-evaluation by the court of the ability of the father to pay such increased amounts. Our decision authorized a re-evaluation on remand.
Cf. Mallatt v. Luihn, supra; Peringer v. Territory of Alaska (CA 9, 1955), 218 F2d 490, 491.
See footnote 3.
That the constitution requires safeguards, not necessarily standards, and that a hearing take place before liability becomes fixed, not that the hearing be conducted at any particular stage of the administrative process, see Warren v. Marion County (1960), 222 Or 307 ( 353 P2d 257 ) and Mallatt v. Luihn, supra. Also see Sunshine Anthracite Coal Co. v. Adkins (1939), 310 US 381, 399, 400 ( 60 S Ct 907 , 84 L Ed 12631 ; Argo Oil Corporation v. Atwood, (1935), 274 Mich 47 ; Yeary v. Bond (Tex Civ App, 1964), 384 SW2d 376 ; Bank of Dearborn v. State Banking Commissioner (1962), 365 Mich 567, 575 .
In Trellsite Foundry & Stamping Company v. Enterprise Foundry (1961), 365 Mich 209, 217 , an apportionment proceeding between former employers of a successful workmen’s compensation claimant, the Michigan Supreme Court ruled that the statute did not provide procedural due process because no notiee of hearing on the issue of compensation was required to be given to the former employers and they had no opportunity to resist the employee’s claim at the original hearing where, subject to rights of appeal, validity of the employee’s claim is conclusively determined. Here in contrast, the affected parent may obtain a hearing before his liability is finally determined.
Exemptions for eMldren of divorced parents, 26 USO § 152(e) (amended August 31, 1967), Pub L 90-78, § 1, 81 Stat 191; Earned income for purpose of computing contributions of self-employed persons under qualified retirement plans, 26 USO § 401(c)(2) (amended November 13, 1966), Pub L 89-809, § 204(c), 80 Stat 1577; Short term capital gain for lapses of straddle options to nondealers, 26 USC § 1234 (c) (amended November 13, 1966), Pub L 89-809, Title II, § 210(a), 80 Stat 1580; Combat pay, 26 ÚSO § 112(b) (amended November 2, 1966), Pub L 89-739, § 1, 80 Stat 1165.
Eor a thoughtful and enlightening discussion of the non-delegation doctrine and of the judicial role in regulating administrative exereise of discretion, see Davis, Discretionary Justice (1969),
MOLA §§ 330.656, 330.659 (Stat Ann 1965 Cum Supp §§14-.870[106], 14.870 [109]).
Compare United States v. O’Mara (D DC, 1954), 122 F Supp 399 , with O’Connell v. Olsen & Ugelstadt (ND Ohio, 1949), 10 FRD 142, 143.
4 Moore’s Federal Practice (2d ed) § 26.25 [5.-2], p 1568; McCormick, Evidence, § 149, p 312; 8A Merten, Law of Federal Income Taxation, § 47.53; 2A Barron & Holtzoff, Federal Practice & Procedure, § 798, p 448; Currier v. Allied New Hampshire Gas Co. (1957), 101 NH 205 ( 137 A2d 405 ).
In United Motion Theatre Company v. Ealand (CA 6, 1952), 199 F2d 371, a contrary view may have been indicated by the United States Court of Appeals for the Sixth Circuit. I do not read Schueler v. Weintrob (1960), 360 Mich 621 , as requiring us to give greater credence to the decisions of the United States Court of Appeals for the Sixth Circuit (which ineludes Michigan) than to the decisions of other Federal courts as the plaintiffs suggest.
1 cannot accept the argument that there is no compulsion on parents to furnish a copy of their Federal ineome tax returns because the aet allows the parent the choice of submitting his tax return or paying the maximum amount. MCLA § 330.661(2) (Stat Ann 1965 Cum Supp § 14.870[111] [2]). A realistic appraisal of these alternatives (pay or disclose) leads to the conclusion that a parent is compelled to furnish a copy of his tax return;
Cf. Sisson v. Schultz (1930), 251 Mich 553 ; Benjamin v. Bondy (1948), 322 Mich 35, 42 ; West v. West (1928), 241 Mich 679 ; Herbstman v. Shiftan (1961), 363 Mich 64, 69 .
The Oregon Supreme Court also found that, although the standard could have been better expressed, ability to pay, not liability according to the statutory scale, was the ultimate governing standard and that there was adequate provision for review before the relative’s liability became fixed. Mallatt v. Lwihn, supra.
At common law, while parents had a duty to support their minor children, they did not have any obligation to support their children after they reached maturity. By statute, parents, grandparents and children of a poor person are, if of sufficient ability, required to provide for the maintenance and support of the poor person. The validity of such statutes has consistently been sustained by the courts. See In re Raseman Estate (1969), 18 Mich App 91 ; People v. Hill (1896), 163 Ill 186 ( 46 NE 796 ), discussing 43 Eliz IC 2, § 7, the progenitor of like statutes enacted in this (MOLA § 401.2 [Stat Ann 1968 Rev § 16.122]) and most of the States (Mandelker, Family Responsibility under the American Poor Laws, 54 Mich L Rev 497 [1956]).
See Ginsberg v. New York (1968), 390 US 629 ( 88 S Ct 1274 , 20 L Ed 2d 195 ), rehearing denied 391 US 971 ( 88 S Ct 2029 , 20 L Ed 2d 887 ); Prince v. Massachusetts (1944), 321 US 158, 170 ( 64 S Ct 438 , 88 L Ed 645 ).
Cf. Lindsley v. Natural Carbonic Gas Co. (1911), 220 US 61, 78, 79 ( 31 S Ct 337 , 55 L Ed 369 , Ann Cas 1912C, 160); Naudzius v. Lahr (1931), 253 Mich 216, 222 .
MOLA § 330.654 (Stat Ann 1965 Cum Supp § 14.870[104]).
Cf. State v. Morgan (1966), 30 Wis 2d 1 ( 139 NW2d 585 ); Kelly v. Williams (Tex Civ App, 1961), 346 SW2d 434 .
MOLA § 393.105 (Stat Ann 1968 Rev § 15.1465).
MCLA § 393.65 (Stat Ann 1968 Rev § 15.1415).
See Ferguson v. Skrupa (1963), 372 US 726, 732 ( 83 S Ct 1028 , 10 L Ed 2d 93 , 95 ALR2d 1347); Buck v. Bell (1927), 274 US 200, 208 ( 47 S Ct 584 , 71 L Ed 1000 ); Roschen v. Ward (1928), 279 US 337 ( 49 S Ct 336 , 73 L Ed 722 ); State v. Morgan, supra.
“Institutions, programs and services for the care, treatment, education or rehabilitation of those inhabitants who are physically, mentally or otherwise seriously handicapped shall always be fostered and supported.” Const 1963, art 8, § 8.
Cf. City of Detroit v. Oakland Circuit Judge (1927), 237 Mich 446, 450 .
See, e.g., Griffin v. Illinois (1956), 351 US 12 ( 76 S Ct 585 , 100 L Ed 891 , 55 ALR2d 1055), rehearing denied 351 US 958 ( 76 S Ct 844 , 100 L Ed 1480 ); Douglas v. California (1963), 372 US 353 ( 83 S Ct 814 , 9 L Ed 2d 811 ), rehearing denied 373 US 905 ( 83 S Ct 1288 , 10 L Ed 2d 200 ); Gideon v. Wainwright (1963), 372 US 335 ( 83 S Ct 792 , 9 L Ed 2d 799 , 93 ALR2d 733).
See, e.g., Shapiro v. Thompson (1969), 394 US 618 ( 89 S Ct 1322, 1327 , 22 L Ed 2d 600, 611 ); Brown v. Board, of Education (1954), 347 US 483, 494 ( 74 S Ct 686 , 98 L Ed 873 , 38 ALR2d 1180); American Communications Association C.I.O. v. Douds (1950), 339 US 382, 417 ( 70 S Ct 674 , 94 L Ed 925 ), rehearing denied 339 US 990 ( 70 S Ct 1017 , 94 L Ed 1391 ) (per Frankfurter, J.).
See Graham, Public Assistance; The Eight to Eeceive; the Obligation to Repay, 43 NYU L Rev 451 (1968). For a discussion of the “old” and “new” bqual protection, see Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection and the Indigent (1969), 2] Stanford L Rev 767-780. See, also, Kirp, Equal Education?, 78 Yale LJ 908 (1969).