The opinion
*511 TOBRINER, J.
I dissent.
The majority propose, by the instant opinion, to establish a new constitutional standard for determining when the state may compel some of its citizens to pay for benefits which the state, in its wisdom, decides to provide to other citizens. Under the test proposed by the majority, a state can charge one class of citizens with the costs of providing public programs to another class whenever there is simply some “rational relationship” between the group of benefited individuals and those who must pay the bill. Applying this “minimal rationality” test in the instant case, the majority hold that since the class of. children have generally benefited from parents, the state can require those children whose parents happen to be poor to reimburse the state for the cost of public old age assistance, regardless of whether a particular child is otherwise legally obligated to provide such support to his parent.
This proposed holding not only squarely overrules our court’s very recent unanimous decision in County of San Mateo v. Boss (1971) 3 Cal.3d 962 [ 92 Cal.Rptr. 294 , 479 P.2d 654 ], as the majority obliquely intimate (see ante, p. 502, fn. 10), but additionally is irreconcilable with this court’s seminal decision in Dept. of Mental Hygiene v. Kirchner (1964) 60 Cal.2d 716 [ 36 Cal.Rptr. 488 , 388 P.2d 720 , 20 A.L.R.3d 353 ], with the reasoning of In re Ricky H. (1970) 2 Cal.3d 513 [ 86 Cal.Rptr. 76 , 468 P.2d 204 ] and In re Dudley (1966) 239 Cal.App.2d 401 [ 48 Cal.Rptr. 790 ] and, indeed, with every recent California precedent in this area, 1 authorities upon which the majority purport to rely. As I shall explain, the prior decisions establish that under our state constitutional guarantee of equal protection of the laws (Cal. Const., art. I, §§11, 21) the state may seek reimbursement for the costs of public programs from a relative of a benefited person only when the relative would have been legally responsible for providing such service even if the state had not undertaken its public program. By the instant opinion, the majority have discarded the legal analysis which has guided California courts in this field for the past decade.
Moreover, the rationale underlying the majority opinion represents not only a sharp break with precedent but, more fundamentally, a dangerous inroad into basic principles of individual freedom and minority rights *512 which have long flourished in this state. The majority opinion greatly expands the power of the state to foist general expenses onto the shoulders of small classes of citizens, permitting the majority, by a unilateral decision to provide certain benefits to some of its citizens, to require a designated minority to bear expenses for which they would otherwise not be responsible. As the few examples described below illustrate, acceptance of the majority’s new constitutional analysis would open the door to a wide abuse of majoritarian power.
Instead of adopting this unprecedented approach, I believe the court should continue to apply the standard that has been established by California cases to date. Under this test, the state may properly seek reimbursement for expenses of a public program from a class of individuals who do not directly receive the benefit of the program only when such individuals bear a legal duty to provide such services which duty exists independently of the state’s decision to initiate its program. As discussed below, applying this test to the “relative responsibility” provisions at issue in the instant case, I conclude that the challenged provisions are invalid, both because an adult child’s legal duty to support poor parents is not “independent” of the state’s decision to provide welfare benefits and because the section works an invidious discrimination against poor families as a class. I therefore believe that the decision of the superior court, granting a temporary injunction to restrain the enforcement of the challenged provisions, should be affirmed.
1. The majority’s holding conflicts with Dept, of Mental Hygiene v. Kirchner (1964) 60 Cal.2d 716 and all of the subsequent California decisions adjudicating similar “relative responsibility” provisions.
I begin my analysis with a chronological review of the considerable California case law which frames the instant controversy. As the majority recognize, Dept, of Mental Hygiene v. Kirchner (1964) 60 Cal.2d 716 [ 36 Cal.Rptr. 488 , 388 P.2d 720 , 20 A.L.R.3d 353 ] represents the seminal decision in the line of recent California cases determining the propriety of a variety of “relative responsibility” provisions. In Kirchner, the State Department of Mental Hygiene, acting pursuant to former section 6650 (now § 7275) of the Welfare and Institutions Code, brought an action to recover the costs of care, support, maintenance and medical attention (some $7,554) incurred on behalf of a patient of a state mental institution against the estate of the patient’s adult child. Pointing out that the patient-parent herself had a personal estate of $11,000, the guardian of the adult child’s estate challenged section 6650 as a denial of equal protection. The trial *513 court upheld the state agency’s claim but our court reversed, holding that by imposing liability upon the estate of an adult child, the section “arbitrarily charged to one class in the society” the cost of maintaining the state institution. ( 60 Cal. 2d at p. 720 .)
Although the precise rationale of the Kirchner opinion is somewhat ambiguous, two distinct threads run throughout the decision. First, relying on Department of Mental Hygiene v. Hawley (1963) 59 Cal.2d 247 [ 28 Cal.Rptr. 718 , 379 P.2d 22 ], the Kirchner court stressed the public nature of the function served by state mental institutions and observed that in general the expense of maintaining such a public institution should be borne by the public generally and could not arbitrarily be charged to a single class within the society. Second, the court noted in Kirchner that the patient herself had an estate of $11,000, adequate to cover the costs sought to be recovered from her daughter’s estate, and that the state sought to impose such liability on the child without giving the child any correlative right of recoupment from, or control over, the patient’s own assets. Under these circumstances, the court concluded that section 6650’s imposition of liability upon the adult child “manifestly denies him equal protection of the law.” ( 60 Cal.2d at p. 723 .)
The holding proposed by the majority in the instant case is completely irreconcilable with the result reached in Kirchner . The majority conclude that regardless of the circumstances of any particular child or parent, since children as a class have benefited from parents, it is permissible to charge all children for the support of parents. If the Kirchner court had applied this reasoning, it would have upheld the application of section 6650 on the facts of that case, for just as in the instant case, the state in Kirchner was seeking reimbursement from an adult child for public services provided to a parent. Since Kirchner did not uphold the statute but instead invalidated section 6650, the majority’s present holding effectively overrules Kirchner .
The next case in the series of “relative responsibility” decisions, and the one ostensibly relied on most extensively by the majority, is the Court of Appeal decision in In re Dudley (1966) 239 Cal.App.2d 401 [ 48 Cal.Rptr. 790 ]. In Dudley, a parent who had placed her adult mentally retarded daughter in a state institution challenged the constitutionality of former section 5260 (now § 6715), which imposed upon parents financial liability for the costs of the care,' maintenance and support afforded their retarded children by the state.
In rejecting the parent’s argument that Kirchner had invalidated all *514 statutes which charged “responsible relatives” for the cost of public programs, the Dudley court noted first that Kirchner had not disapproved earlier decisions permitting the state to charge such costs to the patient or his estate, and then declared that “[Kirchner] does not . . . restrict the right to recoupment to the inmate, or his estate, but states that the cost may not arbitrarily be charged to one class of persons. Such arbitrary charge results when liability is imposed on a daughter because of blood relationship alone without regard for the means of the parent-patient or the resources of the daughter. ... In Kirchner the court rejected the attempt to shift the cost of the maintenance of the patient from the state and the patient’s estate to a relative who except for the arbitrary statute was in no other manner liable for the support of the patient. Herein, on the other hand, the parent, prior to the commitment, was subject to the expense of such care, support and maintenance as she furnished her daughter. She voluntarily appealed to the state, which in turn assumed her obligations upon terms which included reasonable contribution to the cost thereof.” (Italics added.) (239 Cal.App:2d at pp. 411-412.) Under these circumstances, the Dudley court held that the state could properly charge the parent for the costs of supporting her adult child in a state institution.
Although the majority purport to - rely heavily on the reasoning of Dudley , the quoted passage clearly reveals that the broad rationale of the present opinion is inconsistent with Dudley . Whereas the majority suggest that it is rational, and hence permissible, to require all children to support poor parents because children as a class have been supported by parents, and that it is neither necessary nor proper to look to the individual circumstances of a particular child, the Dudley court declared that a relative responsibility provision is “arbitrary . . . when liability is imposed on a daughter because of blood relationship alone without regard for the means of the parent-patient or the resources of the daughter.” By declaring the circumstances of the individual child irrelevant, the majority now approve of just such an “arbitrary” charge.
The key to the Dudley opinion lies in its observation that “prior to the commitment” of her daughter to a state institution, the petitioning parent had the legal duty to support her ill child; since the parent ostensibly bore this obligation without regard to the state’s decision to provide its medical treatment the parent could reasonably be required to continue this same support after commitment. The Dudley court emphasized, however, that the state could not rely on a legal obligation of the parent created by the “arbitrary statute” itself; the legal responsibility of the relative had to exist independently of the state’s reimbursement statutory scheme. The majority opinion ignores this reasoning of the Dudley court.
*515 The foregoing analysis of Dudley is borne out by this court’s 1970 decision in In re Ricky H. (1970) 2 Cal.3d 513 [ 86 Cal.Rptr. 76 , 468 P.2d 204 ]. In Ricky H., a parent contended that under Kirchner it was unconstitutional to require him to reimburse the state for the cost of furnishing his minor child with a court-appointed attorney in juvenile proceedings. In analyzing this contention, the Ricky H. court reviewed Dudley and the numerous other Court of Appeal opinions following Kirchner (see fn. 1, supra), and concluded that the critical question was whether the parent had an obligation to pay for his child’s legal expenses which existed without regard to the state’s decision to furnish counsel. The court reasoned: “[I]f the expenses incurred in procuring counsel to represent the minor in juvenile court proceedings are properly chargeable to the parents as an element of their preexisting support obligation, the reasoning of the foregoing cases should apply, and [Welfare and Institutions Code] section 903.1 should be upheld.” ( 2 Cal.3d at p. 520 .)
The Ricky H. court then analyzed the nature of attorney’s fees to determine whether they were “necessaries” for which parents would generally be liable. Finding that such legal expenses of a minor child were necessaries, the court upheld the reimbursement provision of section 903.1, stating: “We conclude that section 903.1 is merely declarative of the parents’ preexisting obligation to provide reasonable and necessary support to their minor children, and to reimburse third persons providing that support upon the parents’ failure to do so. [Citation.] Consequently, the imposition of liability for counsel fees under section 903.1 cannot be characterized as arbitrary or a denial of equal protection of the laws.” (Italics added.) ( 2 Cal.3d at p. 521 .)
The significance of the legal analysis undertaken in Ricky H. is that it reveals once again the unprecedented character of the present majority opinion. Under the majority’s proposed approach, the relevant question in Ricky H. would not have been whether the parents were under a preexisting duty to provide legal counsel for their child but, instead, would have been simply whether there was a “rational relation” between parents and children which could justify charging parents with the costs of counsel which the state chose to provide to children. Inasmuch as parents generally voluntarily choose to bring children into this world, the mere “rational relationship” envisioned by the majority would obviously be present; thus, under the majority’s suggested test the parents’- liability in Ricky H. would have followed whether or not legal fees constituted reasonable or necessary expenses which the parents were otherwise liable to provide. Since Ricky H. concluded, however, that parents’ liability could be sustained only because counsel fees did fall within the parents’ preexisting support obli *516 gation, it is clear that the majority have substantially departed from the Ricky H. decision.
Finally, this court’s most recent opinion in County of San Mateo v. Boss (1971) 3 Cal.3d 962 [ 92 Cal.Rptr. 294 , 479 P.2d 654 ] demonstrates once again the majority’s break with precedent. In Boss , as in the instant case, the state sought reimbursement from an adult child for the costs of providing his parent welfare benefits under the Old Age Security Law. After reviewing the extensive case law discussed above, the Boss court summarized the holdings: “In each of these cases [permitting reimbursement], it was found that the person upon whom liability was imposed owed a preexisting duty of support to the recipient of the public assistance. Since the state discharges that duty of support to the extent it provides welfare assistance, it may reasonably seek reimbursement from those whose duty it discharges.” ( 3 Cal.3d at p. 968 .)
Applying this analysis to the facts before it, the Boss court concluded that because of the substantial assets possessed by the parent recipient, including a $30,000 home, Civil Code section 206 placed no.legal obligation of support upon her adult child and consequently such child could not be required to reimburse the state for old age benefits granted to the parent. Under these circumstances, the court in Boss found it unnecessary to pass on the validity of the relative responsibility provisions as applied to an adult child who did fall within section 206’s terms.
In ostensibly undertaking to answer the question left open by Boss , however, the majority have gone much further and have completely overruled the matters that were definitively resolved by the Boss opinion. Thus, the majority do not simply hold that those adult children who are legally obligated to support their parents under the newly amended section 206 may be required to reimburse the state, but instead the majority have declared that since children as a whole have benefited from parents, the state may require adult children to pay the costs of old age benefits provided to their parents regardless of whether the particular individual child is under a legal obligation under section 206 to support his parents. 2 By such a ruling, *517 under which the circumstances of the individual case become irrelevant, 3 the majority have undeniably overruled the principal holding of Boss , for under the majority’s proposed test the adult child in Boss—one of the class of persons generally benefited by parents—would have been liable to the state.
*518 2. The change in constitutional standards proposed by the majority removes significant constraints on the abuse of majoritarian power and opens the door to a wide range of measures placing disproportionate financial burdens on disparate minorities.
The above review of the cases demonstrates that the proposed majority decision works a radical change in the constitutional standard that has been applied in evaluating similar “relative responsibility” enactments in this state in recent years. The proposed change in my view represents a dangerous abandonment of limitations on majoritarian power which adhered in the Kirchner line of decisions.
As Kirchner itself demonstrates, the cautious attitude of California courts toward relative responsibility provisions reflects a basic concern that the state may be unfairly shifting the burden of public expenses onto a small segment of the citizenry; past decisions have implicitly recognized that the potential abuse of majoritarian power is particularly hazardous in this context, because the group singled out to bear a disproportionate share of the public expense will frequently be a small minority, often with no cohesive characteristics that would permit effective political representation. Thus, for example, the class of adult children of recipients of old age benefits is not likely to be an organized force capable of resisting the always popular efforts to reduce the general tax burden.
Kirchner and its progeny responded to this potential danger of governmental overreaching by recognizing that the state constitutional equal protection clauses limit the government’s power to charge one class of citizens for public benefits bestowed on other citizens. These decisions established that in California, the constitutional guarantees permit the state to obtain reimbursement of public expenditures from a designated class of persons only when the individuals being charged would have been responsible for the expenses absent any state decision to establish a pubhc program. If the individuals did not have such a “preexisting” or “independent” legal duty, past cases had estabhshed that it is arbitrary and unconstitutional for the state to single out such individuals to pay a disproportionate share of the costs of a pubhc program.
The majority opinion, perhaps unwittingly, removes the constraints estabhshed by the prior decisions, and suggests that the state may charge one class of citizens for benefits the state chooses to bestow on others whenever there is simply a rational relationship between the benefited group and the citizens to be charged. 4 It matters not, say the majority, *519 that the individual who must pay the bill was not otherwise obligated to provide the service before the state decided to provide it, so long as it is “rational” to charge him for it. The potential consequences of such a holding are ominous.
Under the majority’s newly propounded “rationality” test, a government intent on reducing the general tax burden could single out insulated minority classes to bear a disproportionate share of the tax burden of a whole range of public services. Thus, for example, the “mere rationality” standard would permit the state not only to charge adult children with the costs of old age benefits but would authorize public savings by charging such children for the costs of subsidized housing projects, medical care, recreational centers, reduced public transportation fares and the various other social programs the state decides to make available to its senior citizens. Although the children of the recipients of such benefits may have had no preexisting obligation to pay for such services, the majority’s constitutional test would presumably sanction such charges on the ground that children as a whole have benefited from parents. Moreover, since the circumstances of the individual case are assertedly irrelevant, the state presumably could require even a child who had been abandoned by his parents to pay the costs of these varied public programs. 5
A further example may provide an even sharper illustration of the potential dangers loosed by the majority’s constitutional approach. Assume the state decided to initiate bilingual educational programs to improve the educational opportunities offered to children from non-English-speaking households. Could the state, to reduce public costs, require the parents of such children to finance this entire public program? To be parallel to the present case, of course, we must assume that the charged parents could not decline to have their children take part in the program so long *520 as the children chose to do so. The proposed “rationality” test of the majority apparently would permit this type of cost savings, foisting public expenditures onto the shoulders of those related to the beneficiaries of the public program.
Moreover, nothing in the mere “rationality” test proposed by the majority would limit the state’s power to obtain reimbursement to relatives of recipients of public benefits. Many diverse groups of people receive “benefits” from persons who in turn are beneficiaries of government programs. Under the majority approach, for example, homeowners whose houses are saved from destruction by local firemen could presumably be required to finance the fire department’s retirement benefit program; citizens who seek the assistance of police could be made responsible for widow’s benefits paid in the event of a policeman’s death. The examples of disproportionate taxation schemes sanctioned by the majority’s proposed constitutional standard are endless; the defect in the suggested test is that it abandons the constitutional limits established in the California decisions to date.
3. Under established constitutional principles, sections 12100 and 12101 are invalid both because the duty of support imposed upon adult children by section 206 is not “independent” of the state’s reimbursement scheme and because the sections invidiously discriminate against poor families.
The validity of sections 12100 and 12101, I submit, must be judged by the constitutional criteria developed in our prior cases. Under these precedents, the relevant question in the instant case is whether adult children bear a “preexisting” or “independent” duty to support their needy parents which the state discharges by its grant of old age benefits, or, in other words, whether such adult children would be obligated to support their parents even if the state had not decided to provide such aid. When this question is faced directly, I believe it becomes clear that no such “independent” duty is present.
Defendants, of course, rely upon Civil Code section 206 as providing the “independent” duty of adult children to support their needy parents which purportedly rationalizes the relative responsibility provisions at issue here. In one sense, section 206 as amended does provide a duty “independent” of sections 12100 and 12101, for under its terms an adult child may be responsible for supporting his poor parent whether or not the state actually provides the parent with old age benefits. But such a narrow interpretation of the “independent legal duty” requirement loses sight of the fundamental purpose served by this requirement.
*521 As discussed above, the cases have insisted that a class of citizens be under an “independent duty” to provide support before the state can impose a reimbursement requirement in order to prevent a majority from arbitrarily charging a small segment of the population for public programs which the majority desires to implement. This purpose is completely defeated if the state can create an “independent” legal duty simply to implement its reimbursement program; under such circumstances, the “independent” duty serves no check on majoritarian abuse. Defendants do not contest that the newly amended provisions of section 206 were enacted as an integral part of the challenged relative responsibility scheme. Under these circumstances, the new portion of section 206, placing a duty on adult children to support parents “in need,” can in no sense be said to establish an “independent” legal duty as that term has been used in our prior cases.
Moreover, even the long-established provisions of section 20'6 which preceded the 1971 amendments cannot properly be said to establish an “independent duty” of adult children to support their poor parents. As the majority recognize, the duty to support embodied by section 206 did not exist at common law but was first established as part of the Elizabethan Poor Law. As this court has pointed out on numerous occasions in the past, and as the majority concede, from its very inception this provision “ ‘was designed to indemnify the public and to minimize its costs in relieving the poor.’ ... ‘It has been stated that the “main purpose of the statute seems to be to protect the public from the burden of supporting people who have children able to support them.” ’ ” (Ante, at pp. 502-503.) 6
This historical background demonstrates that the statutory duty of support created by section 206 has never been “independent” of the state’s reimbursement provisions but, on the contrary, was established simply to implement such reimbursement and to reduce the state’s responsibilities. Thus, unlike the common law duties of support that exist between husband and wife and parent and child, section 206’s duty serves no general public role other than “to relieve the public treasury of part of the burden cast upon it by the public assumption of responsibility to maintain the destitute.” (Co unty of San Mateo v. Boss (1971) 3 Cal.3d 962, 971, fn. 8 [ 92 Cal.Rptr. 294 , 479 P.2d 654 ].) Given the history and purpose of section 206, it cannot be said that adult children would have been legally obligated to support their needy parents absent the state’s decision to provide such *522 aid. Accordingly, section 206 does not establish a preexisting, independent duty of support constitutionally sufficient to justify the challenged relative responsibility provisions. 7
Furthermore, even if section 206 could be said to create an “independent” duty on adult children under our prior decisions, I still believe the challenged provisions are invalid as an invidious discrimination against the children of poor parents.
As noted earlier, the majority uphold the rationality of the provisions at issue by observing that since children as a class have benefited from the support of their parents, it is reasonable to require children to support their parents. The fallacy with this reasoning as applied to the instant case, however, is that the state has not chosen to charge all children with the cost of supporting parents but instead it has singled out children of poor or needy parents to bear this burden. The fact that such children of poor parents in general have benefited from the support of their parents does not distinguish this class from the large class of “adult children” who are not required to assume the contested financial burden; these other adult children, whose parents either have sufficient resources of their own or have already died, presumably also benefited from parental support during their youth but they are not required to make financial contributions under the challenged provisions. Instead, it is only the adult children whose parents continue to live and happen to be poor who are compelled to shoulder the financial burden. In my view, the singling out of this group for such a burden denies them the equal protection of the laws.
The majority’s response to this contention is apparently that the state is not required to grant aid to parents with sufficient financial resources and since it has chosen to give aid only to poor parents it is proper to seek reimbursement only from the children of such poor parents. No one, of course, contends that the state should give aid to financially secure persons. But the permissibility of limiting aid to the needy aged does not answer *523 the question of how the adult children of such persons can rationally be distinguished from other adult children who are similarly situated with respect to prior parental benefits. The fact of the matter is that the challenged provisions attach serious financial consequences to the frequently fortuitous circumstance of whether one’s parents are alive and in need.
Moreover, the classification scheme created by the relative responsibility provision is doubly invidious because, as a practical matter, in the great majority of cases the adult children of “parents in need” themselves command only very modest incomes. Technically, of course, it is true that, as the majority point out, the challenged provisions apply to all children of poor parents, whether the children be rich or poor. We blind ourselves to reality, however, if we do not recognize that by and large poor parents have less-then-wealthy adult children, adult children who, more often than not, are beginning to raise their own families and attempting to improve their economic condition. It is this class of citizens that the challenged provisions single out to bear an additional burden, a burden which is imposed not because of any personal failing of the adult child, but simply because his parent happens to be poor. Thus, in addition to all the disadvantages poverty may earlier have cast on this class of citizens, these adult children are required once again to bear an increased burden simply because their family is poor.
The disproportionate burden which relative responsibility laws place on the poor is not a contemporary phenomenon. As Professor tenBroek extensively demonstrates in his exhaustive study of the development of California family law, from the time of the Elizabethan Poor Laws the Anglo-Saxon legal system has incorporated a dual system of family law, one applicable to the poor and the other to the rest of society. “The . . . basis of the overall classification—the family law of the poor—and the source of its distinction from the family law of the rest of the community, is that the families who are its subjects are poor. It is this basic fact, the poverty of the class of persons entitled to assistance under the state’s welfare laws, which underlies the further and altogether dependent classification of certain relatives of such persons as responsible. One classification based on poverty is thus built upon another, and the whole system is accordingly doubly invidious.” (Italics added.) (tenBroek, California’s Dual System of Family Law: Its Origin, Development and Present State, Part III (1965) 17 Stan.L.Rev. 614, 644.)
Professor tenBroek continues the above paragraph, written in 1965, with a question: “In this age of a renewed quest for equality and a national rediscovery of the human and moral elements in the Constitution, should *524 not poverty as a classifying trait be declared inherently discriminatory and outlawed because of its very nature, and ‘the mere fact of being without funds’ be held ‘constitutionally an irrelevance like race, creed or color’ as Mr. Justice Jackson said and as Griffin and Gideon imply?” (Fns. omitted.) (Id.) One would have thought that given this court’s recent decisions in In re Antazo (1970) 3 Cal.3d 100, 112 [ 89 Cal.Rptr. 255 , 473 P.2d 999 ], and Serrano v. Priest (1971) 5 Cal.3d 584, 597 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 ], the answer to this query would have been a resounding affirmation. Instead, the majority approve the perpetuation of a dual system of family law which places special disabilities on families of the poor.
4. Conclusion.
As discussed at length above, the majority opinion effectively overrules this court’s prior unanimous decisions in Kirchner, In re Ricky H., and Boss as well as a score of Court of Appeal decisions implementing the Kirchner decision. In discarding the approach of Kirchner , characterized by the leading scholar in the field as a “landmark” decision (see tenBroek, supra, 17 Stan.L.Rev. 614, 638), the majority remove major constraints on the authority of government to impose public expenses on a small class of citizens and open wide the door to future “tax saving” schemes which place disproportionate shares of public expenses on various minority groups. Moreover, in upholding the specific relative responsibility provisions at issue here, the majority sanction a perpetration of a dual system of family law which places special financial burdens on individuals simply because of the poverty of their families. I cannot join in such a holding.
It might be possible to understand the reasons for the majority’s uprooting of a consistent line of precedent and creation of a novel constitutional ruling if the legislation challenged in the instant case offered the promise of unquestionably beneficial social consequences; under such circumstances one might expect to find the court questioning past decisions that impeded the salutary result. The statutes in question here, however, offer no such beneficient social consequences.
On the- contrary, almost all observers agree that the social effects of the challenged relative responsibility provisions are harsh and self-defeating. “[A] large body of social work opinion [has long maintained] that liability of relatives creates and increases family dissension and controversy, weakens and destroys family ties at the very time and in the very circumstances when they are most needed, imposes an undue burden upon the poor . . . and is therefore socially undesirable, financially unproductive, and admin *525 istratively infeasible.” (tenBroek, supra, 17 Stan.L.Rev. at pp. 645-646.) As Justice Friedman, writing for the Court of Appeal in the instant case, observed: “[The challenged provisions] strike most aggressively and harshly at adult children occupying the lower end of the income scale. The enforced shift of subsistence funds from one generation to the other distributes economic desolation between the generations. It galls family relationships. It injects guilt and shame into elderly citizens who have made their contributions to society and have become dependent through life’s vicissitudes.”
Jenny Baxter, a 75-year-old Californian receiving Old Age Security benefits, eloquently summarized the true effect of the relative responsibility laws: “No one is born into this world with a debt to their parents for their birth and contributions until their maturity. That is the parents’ contribution to life and society. When the child reaches maturity, he starts a new separate unit and in turn makes his contribution to life and society as did his parents, carrying on the generation cycle on through eternity. The children should not be saddled with unjust demands that keep them at or near poverty level with no hope to escape it, just because a parent still breathes. And aged parents should not have.to live their remaining lives facing the heartbreaking experience of being such a burden to their children. Many would prefer death but are afraid of retribution for taking their own lives. Their grief—a living death.”
The majority have uprooted cases deep in the subsoil of our law. The tragedy lies in the fact that those cases were the product of the courts’ sensitive accommodation of constitutional principle to social reality. Thus the majority have turned back the pages of judicial history and restored the inequitable requirement that some of the poor support others of the poor; the majority defend again the arbitrary selection of a private group to bear a public burden; the majority disregard the constitutional injunction against the denial of the equal protection of the laws.
I would affirm the superior court judgment invalidating the challenged provisions as a denial of equal protection of the laws.
Mosk, J., concurred.
Eg., Guardianship of Hicks (1964) 228 Cal.App.2d 629, 632 [ 39 Cal.Rptr. 698 ] (upholding right of state to obtain reimbursement from benefited individual’s own estate); Estate of Preston (1966) 243 Cal.App.2d 803 [ 52 Cal.Rptr. 790 ] (same); Department of Mental Hygiene v. Kolts (1966) 247 Cal.App.2d 154, 163 [ 55 Cal.Rptr. 437 ] (upholding reimbursement provision as applied to spouse of beneficiary); County of Alameda v. Kaiser (1965) 238 Cal.App.2d 815 [ 48 Cal.Rptr. 343 ] (upholding reimbursement provision as applied to parent of minor beneficiary).
In holding that the rationality of requiring reimbursement from a particular adult child should not be determined by whether that particular child had an individual duty to support his parent under section 206, the majority purport to rely on this court’s pre-Kirchner decision of County of San Bernardino v. Simmons (1956) 46 Cal.2d 394 , 296 P.2d 329 . The majority’s treatment of Simmons , however, is defective in several respects.
First, the majority inaccurately state that Simmons was an action brought by the county pursuant to former section 2224 of the Welfare and Institutions Code. Actu *517 ally, the county had initially sought recovery from the relative on two grounds: (1) under section 2224 and (2) on a subrogation theory based upon the relative’s duty under Civil Code section 206. The decision explains that the county’s “first cause of action is, as stated in section 2224 of the Welfare and Institutions Code, ‘to recover for said county such portion of the aid granted as said relative is able to pay, and tc secure an order requiring the payment of any sums which may become due in the future for which the relative may be liable.’ ” ( 46 Cal.2d at p. 395 .) The trial court specifically struck this initial claim under section 2224, and the county did not appeal from that ruling. (Id. at p. 396.) Thus the Simmons opinion in this court dealt solely with the question of whether a county could proceed directly under section 206, and did not pass on the specific relative responsibility provision at all.
Second, in determining that the county could not proceed directly under section 206, the Simmons court merely found that the Legislature had not intended to permit the county to proceed under this provision. The decision was thus simply concerned with a matter of statutory interpretation and did not address the question of the relationship between section 2224 and section 206 as a constitutional matter.
That constitutional issue was addressed by the Court of Appeal in In re Dudley (1966) 239 Cal.App.2d 401, 410 [ 48 Cal.Rptr. 790 ], where the court held that the alleged arbitrariness of a given relative responsibility law had to be determined by whether the charged relative was “otherwise liable” to provide such support. In Dudley , the court found the required reimbursement permissible because on the facts before it the charged relative was responsible under section 206 for his adult child’s support. Dudley obviously proceeded on the theory, however, that the question of arbitrariness had to be judged on the basis of whether the particular relative had an individual duty to the beneficiary of the state service for it expressly distinguished Kirchner as a decision in which the particular relative (an adult child) did not have such a duty. ( 239 Cal.App.2d at p. 412 .)
In the course of its analysis, the Dudley court explained that nothing in the Simmons opinion negated the relevance of section 206 in determining the arbitrariness or reasonableness of a given relative responsibility law. ( 239 Cal.App.2d at p. 410 .) The majority’s present use of the Simmons opinion thus is directly contrary to the analysis, and holding, of Dudley .
The significance of this holding is that the considerable case law interpreting the scope of section 206’s duty becomes irrelevant in determining whether a child is obligated to pay the state for old age benefits granted to his parents. The cases interpreting section 206 establish that in determining the extent of an adult child’s obligation under that provision a great many factors must be considered, including (1) the demands of the adult child’s children (which take precedence over the parent’s needs (see People v. Curry (1924) 69 Cal.App. 501, 507 [ 231 P. 358 ])), (2) the total wealth of all the parent’s children (see Britton v. Steinberg (1962) 208 Cal.App.2d 358 [ 24 Cal.Rptr. 831 ]), and (3) whether the parent, by ill treatment of the child, has lost his right to demand full support from his child. (See Radich v. Kruly (1964) 226 Cal.App.2d 683, 687 [ 38 Cal.Rptr. 340 ].) (See generally Gluckman v. Gaines (1968) 266 Cal.App.2d 52, 54-55 [ 71 Cal.Rptr. 795 ].) Under the majority’s approach, however, this variety of factors need never be considered in judging the validity of a state’s demand that a particular child pay for state services provided to his parent.
At one point the majority suggest that the ultimate constitutional question “is whether placing the burden for [poor parents’] support upon the adult children bears *519 some rational relationship to the accomplishment of the state purpose of relieving the public treasury.” (Ante at p. 506.) The relevant question cannot be, however, simply whether charging adult children is rationally related to cutting public expenses, for charging any class of citizens (e.g., red-headed men) for such expenses would be rationally related to that purpose. (See Comment (1964) 39 N.Y.U.L.Rev. 858, 864.) Instead, I assume that the basis for the majority decision is that there exists a rational relationship between the class of adult children and the beneficiaries of old age security benefits for whose support they are being charged. My analysis proceeds on this assumption.
Although the majority note (ante, p. 506, fn. 15) that some (but not all) abandoned children are at present exempted from the liability imposed by sections 12100 and 12101 of the Welfare and Institutions Code, under the majority approach there is no constitutional requirement that such children be relieved of this liability, as they are under section 206. (See Radich v. Kruly (1964) 226 Cal.App.2d 683, 687 [ 38 Cal.Rptr. 340 ].)
See Friedman, A History of American Law (1973) pages 181, 590-591. For an explanation of the impact of the Elizabethan laws upon the development of American poor relief and a critique of the continued reliance upon these procedures in contemporary America, see Sister Alice Tobriner, A Sixteenth-Century Urban Report (1971) pp. 27-28.
In re Dudley (1966) 239 Cal.App.2d 401 [ 48 Cal.Rptr. 790 ] appears to be the only California decision to find that the legal duty imposed by section 206 constitutes a sufficient “independent duty” to justify a reimbursement requirement imposed upon a responsible relative, in that case upon a parent for the expenses of caring for an adult child. The Dudley court reached this conclusion, however, without analyzing the basic purpose of the “independent duty” requirement and without recognizing that the history of section 206 demonstrates that this duty was imposed on relatives simply for the purpose of reducing the state’s financial obligations. A more recent Court of Appeal decision, Department of Mental Hygiene v. Bank of America (1970) 3 Cal.App.3d 949, 954 [ 83 Cal.Rptr. 559 ], held that section 206 was not a sufficient basis to justify charging a parent for the public costs incurred on behalf of his mentally ill child.