Brief for Appellee — Stanton v. Stanton

IN THE

Supreme Court of the United States

October Term, 1973

No. 73-1461

THELMA B. STANTON,

Appellant,

V.

JAMES LAWRENCE STANTON, JR.

Appellee.

On Appeal from the Supreme Court of the

State of Utah

BRIEF FOR THE APPELLEE

D. GARY CHRISTIAN

KIPP AND CHRISTIAN

520 Boston Building

Salt Lake City, Utah 84111

Attorney for Appellee

TABLE OF CONTENTS

Page

STATEMENT OF THE Ca 1

SUMMARY OF ARGUWNW rh 2

POINT I.

APPELLANT LACKS STANDING TO ATTACK

THE CONSTITUTIONALITY OF SECTION

15-2-1, UTAH CODE ANNOTATED (1953) .......... 3

POINT II.

THE ISSUE RAISED BY APPELLANT IS NOW

GREE cutetnsnsvsnesnsnanenseneeunsteenjeanesenesisuinssnnatauismmmumensbansane 9

POINT III.

— Ä —— ö 9

POINT IV.

THERE IS A RATIONAL BASIS TO THE DIS-

TINCTION DRAWN BY SECTION 15-2-1 ............ 16

POINT V.

IF THE COURT HOLDS THAT THE STATUTE

IS UNCONSTITUTIONAL, IT SHOULD SET

THE AGE OF MAJORITY IN MALES AND

FEMALES AT EIGHTEEN ..................----------00-eeceee0s- 20

ID —ñ̃ —U— 24

CASES CITED

Baker vs. Carr, 369 U.S. 186, 204 (1962) .................. 4, 5, 17

Barrows vs. Jackson,

346 U.S. 249, 97 L.Ed. 1586, 1595 (1952) .............. 3

Bolling vs. Sharpe, 347 U.S. 497 (1953 22 10

Casey vs. Galli, 94 U.S. 673, 24 L.Ed. 168 (1877) 8

Dickerson vs. Colgrove,

100 U.S. 578, 580, 25 L.Ed. 618 (1879) 7, 8

Eslinger vs. Thomas, 476 F.2d 225 (4th Cir. 1972) .......... 15

TABLE OF CONTENTS (Continued)

Page

Flast vs. Cohen,

392 U.S. 83, 102, 20 L.Ed.2d 947, 963 (1968) ...... 3, 5

French vs. Johason, 16 Utah 2d 360, 401 P.2d 315 (1965) 4

Frontiero vs. Richardson, 411 U.S. 677 (1973) ...... 12, 14, 15

Geduldig vs. Aiello,

— USS. ........, 94 S.Ct. 2485 (1974) . 4, 15

Goessart vs. Cleary, 335 U.S. 464 (1948) .......... „ 10

Grace vs. Quigg, 276 N. E. 2d 594, 598 (Ind. 1971) 4

Gruenwald vs. Gardner, 390 F.2d 591 (2nd Cir. 1968) .... 15

Harper vs. Ballensinger, 177 S.E.2d 693, 698 (Ga. 1970) 4

Harrigfeld vs. District Court of Seventh Judicial Dis-

trict, 511 P.2d 822 (Idaho 1973) .......................... 22

Kahn vs. Shevin,

* US. ........, 94 S. Ct. 1734 (1974) ............13, 14, 15

Kirk vs. Hamilton, 102 U.S. 68, 26 L.Ed. 79 (1880) ........ 8

Korematsu vs. United States, 323 U.S. 214 (1944) 10

Lamb vs. Brown, 456 F.2d 18 (10th Cir. 1972) .......... 15, 22

Larsen vs. Larsen, 5 Utah 2d 224, 300 P.2d 596 (1956) .... 4

Lindsley vs. Natural Carbonic Gas Co.,

220 U.S. 61, 79, 55 L.Ed. 369, 377 (1911) ................ 10

Liner v. Jafco, Inc., 375 U.S. 301, 306 (1964) 9

McDonald vs. Board of Education Committee of Chicago,

394 U.S. 802, 809, 22 L.Ed.2d 739, 745 (1969) 19

Miskunas vs. Union Carbide Corp.,

399 F.2d 847 (7th Cir. 1968) 15

Moritz vs. Commissioner of Internal Revenue,

469 F.2d 466 (10th Cir. 197277777 22

Morris vs. Michigan State Board of Education,

472 F.2d 1207 (6 Cie. 197) 15

Muller vs. Oregon, 208 U.S. 412 (1908) 10

TABLE OF CONTENTS (Continued)

Page

North Carolina vs. Rice, 404 U.S. 244, 246 (1971) .......... 9

Paiewonsky vs. Paiewonsky,

. Sy | eee 15

Patricia A., In re matter of,

31 N.Y.2d 83, 335 N.Y.S.2d 33 (197272 23

vs. Ellis,

10 III. App.3d 216, 293 N.E.2d 189 (1973) .............. 22

Powell vs. McCormack, 395 U.S. 486, 496 (1969) 9

Reed vs. Reed, 404 U.S. 71, 30

L.Ed.2d 225 (1971) 10, 11, 12, 13, 14, 15

Robinson vs. Board of Regents of Eastern Kentucky

University, 475 F.2d 707 (6th Cir. 1973 15

Rosenblat vs. Birnbaum, 245 N.Y.S.2d 71, 75 (1963),

affd. 264 N.Y.S.2d 521, 212 N.E.2d 37 (1965) 4

Royster Guano Co. vs. Virginia,

eee id. saccccrccessnnsnccnsensones 10, 16

Schattman vs. Texas Employment Commission,

J 15

Shapiro vs. Thompson, 394 U.S. 618, 633 (1969) 13

Skinner vs. Oklahoma, 316 U.S. 535 (1941) 20

Stanton vs. Stanton,

30 Utah 2d 315, 319, 517 P.2d 1010 (1974) .......... 17, 22

United States vs. Pink, 315 U.S. 203, 216 (1941) .............. 12

Welsh vs. United States, 398 U.S. 333 (1969 ¶ 20

STATUTES CITED

er OOO eee 21

Int. Rev. Code of 1954, § 710b b 4

§ 15-2-1, Utah Code Annotated

(1953) —ͤ— 3 —y— — 1, 2, 3, 5, 6, 8, 9, 16, 19, 20, 23

TABLE OF CONTENTS (Continued)

Page

§ 32-7-15, Utah Code Annotated

—.—ͤ ͤ K e 21

§§ 41-2-1, Utah Code Annotated

PPP 21

§§ 55-10-63, Utah Code Annotated

. . 21

9741-1, Utah Code Annotated (1953) 21

§ 76-10-103 Utah Code Annotated (1953) ..................--.--- 21

§§ 78-45-1, et seq., Utah Code Annotated (1953) ...... 6, 24

Rule 17(b), Utah Rules of Civil Procedure 6

CONSTITUTIONAL PROVISIONS

. RES eer er Tn 21

TEXTS CITED

2 12

ü m:. 4

National Center for Education Statistics, Fall Enrollment

in Higher Education 1972, 52, 53 (1972) .................. 18

H. Clark, The Law of Domestic Relations in the United

ee 4

Nelson on Divorce and Annulment, § 14.90 (2nd ed.

ES Be 8 See 4

United States Department of Commerce, Statistical

Abstract of the United States 1974, 68 (1974) ........ 18

IN THE

Supreme Court of the United States

October Term, 1973

No. 73-1461

THELMA B. STANTON,

Appellant,

V.

JAMES LAWRENCE STANTON, IR.

Appellee.

On Appeal from the Supreme Court of

State of Utah

BRIEF FOR THE APPELLEE

STATEMENT OF THE CASE

This appeal arises from a divorce action between ap-

pellant and appellee. Pursuant to stipulation of the parties

a Decree of Divorce was entered November 29, 1960. The

Stipulation and the Decree inter alia granted appellant cus-

tody of the minor children Sherri Lyn and Rick and ordered

appellee to pay appellant $100.00 per month for each child

(A. 1, 3-6).

Section 15-2-1, Utah Code Annotated (1953) provides

that single women achieve their majority at age eighteen,

and men at twenty-one. Thus, when Sherri turned eighteen

7

—

on February 12, 1971 appellee discontinued Sherri’s support

payments. On May 13, 1973 appellant moved the trial court

for a judgment against appellee in the amount of $3,000.00

representing alleged delinquencies in support payments for

the use of Sherri from February 12, 1971.

The trial court denied appellant’s motion, citing §15-2-1.

(A. 23). From this ruling, appeal was taken to the Utah

Supreme Court, based upon the theory that the statute con-

travened the Equal Protection and Due Process Clauses of

the United States Constitution.

When the State Supreme Court affirmed the trial court’s

decision, Mrs. Stanton appealed to this court.

SUMMARY OF ARGUMENT

There are several reasons why appellee believes this

appeal should be dismissed. On a procedural level appellee

believes that the facts show that appellant lacks standing

and that the issue is moot.

Appellant lacks standing because she is not a member

of the age group affected by the statute and because in her

individual capacity as a trustee or fiduciary she lacks the

personal stake in the outcome required by this court. Further-

more, since appellant stipulated that support payments

should be paid only to her children, she waived her right

to mow assert that payments should continue after Sherri

achieved majority.

The issue is moot because neither Sherri nor appellant

is now a member of the eighteen to twenty-one age group.

3

On a substantive level appellee contends that this court

should apply the “rational basis” test; and that the statutory

scheme under attack here does have a rational basis.

Finally, even if it is held that the statute is unconstitu-

tional, appellee believes that this court should remedy any

inequality by expanding the coverage of the statute to allow

men to be treated as adults at age eighteen rather than by

withholding the privileges of adulthood from women until

they reach twenty-one.

POINT I.

APPELLANT LACKS STANDING TO ATTACK

THE CONSTITUTIONALITY OF SECTION

15-2-1, UTAH CODE ANNOTATED (1953)

It is a well established rule of this court that only indi-

viduals whose interests have been prejudiced or who will

suffer direct substantial injury as a result of application of

a statute may attack its constitutionality Barrows vs. Jack-

son, 346 U.S. 249, 97 L.Ed. 1586, 1595 (1952). Similarly,

it has been stated that where a legislative enactment is being

attacked, a logical link between the status of the challenger

and the statutory scheme must be established Flast vs. Coben,

392 U.S. 83, 102, 20 L.Ed.2d 947, 963 (1968).

On its face the statute under attack purports to grant the

privileges of majority to women eighteen years of age and

older while withholding such benefits from men until they

reach twenty-one.

Even though appellant is not an individual whose age

falls in the eighteen to twenty-one age group, she nonethe-

less claims standing to attack the statute based upon the well

4

recognized right of a mother to bring an action against a

father for delinquencies in support payments. It is, however,

clear that the wife’s interest is at best derivitive and indirect.

Her position has been analogized to that of a fiduciary with

respect to the amount paid, H. Clark, The Law of Domestic

Relations in the United States (1968) p. 494; to a guardian

who must use the payments for the child’s benefit, id. at

490; and to a trustee Rosenblat vs. Birnbaum, 245 N.Y.S.2d

71, 75 (1963), affd. 264 N.Y.S.2d 521, 212 N.E.2d 37 (1965);

Harper vs. Ballensinger, 177 S.E.2d 693, 698 (Ga. 1970);

Grace vs. Quigg, 276 N.E.2d 594, 598 (Ind. 1971); Nelson

on Divorce and Annulment, §14.90 (2nd ed. 1961).

As to a wife’s interest in child support payments it has

been stated:

{A} wife, awarded the custody of the children, has

no proprietary rights in the amounts ordered to be

paid by the husband for their support, and the money

paid under the decree can be used only for the bene-

fit of the children. 27B C.J.S. Divorce § 321(2)

That the wife has no interest in child support pay-

ments can be seen in the Internal Revenue Code which

exempts such payments from the wife’s income, Int. Rev.

Code of 1954, § 71(b), and in various Utah cases where it

has been stated that even by stipulation of the wife the hus-

band may not reduce such payments. French vs. Johnson, 16

Utah 2d 360, 401 P.2d 315 (1965); Larsen vs. Larsen, 5 Utah

2d 224, 300 P.2d 596 (1956).

If appellant has no interest in the payments, her only

“personal stake in the outcome of the controversy” (Baker

vs. Carr, 369 U.S. 186, 204 (1962)) must be the right to

bring an action against the husband for recovery of the

amounts payable for the child’s benefit.

5

In attempting to determine whether a party has a suffi-

cient interest in a dispute to have standing to attack a legis-

lative-enactment, this court has laid down the following rule:

The ‘gist of the question of standing’ is whether the

the party seeking relief has ‘alleged such a personal

stake in the outcome of the controversy as to assure

that concrete adverseness which sharpens the presen-

tation of issues upon which the court so largely de-

pends for illumination of difficult constitutional

questions.’ Flast, supra, at 961, quoting Baker, supra,

at 204.

In this case it is clear that appellant lacks such a per-

sonal stake in the outcome. At issue here is the constitution-

ality of a statute which bestows the rights of majority on

certain individuals. In her Brief appellant acknowledges a

raft of benefits to those who are acknowledged as adults

under the law. See Brief of Appellant at pp. 20-21. Appel-

lant also acknowledges that a determination that § 15-2-1

is unconstitutional may lead to a raising of the minimum age

to twenty-one rather than a lowering to age eighteen. In fact,

appellant urges that in the event the statute is voided, the

age of twenty-one be adopted as the age of majority. Id. at

29, 30.

Thus it appears that appellant’s interest, real or

imagined, is inimical to the very class (i. e., women eighteen

to twenty-one) whose interest she claims to represent. It is

thus difficult to understand how appellant can assert such a

“personal stake in the outcome as to assure concrete ad-

verseness.” Baker vs. Carr, supra.

Indeed, appellant is not herself discriminated against,

if at all, on the basis of her sex. A male under like circum-

stances would be treated no differently than she. At best,

there is a distinction drawn in § 15-2-1 between males and

6

females of a certain age group (eighteen to twenty-one) to

which she does not belong. If appellant’s daughter felt that

she was the victim of invidious discrimination, having ob-

tained her majority she could bring an action in her own

name. Rule 17(b), Utah Rules of Civil Procedure.

Furthermore, any discrimination in support payments

to eighteen-, nineteen-, and twenty-year-old women engen-

dered by § 15-2-1 is eliminated by Utah’s Uniform Civil

Liability for Support Act, §§ 78-45-1, et seq., Utah Code

Annotated (1953, Supp. 1973).

The pertinent provisions of the Act are as follows:

78-45-2. Definitions. — As used in this act:

* * V6

(2) ‘Obligor’ means any person owing a duty of

support.

(3) ‘Obligee’ means any person to whom a duty

of support is owed.

(4) ‘Child’ means a son or daughter under the age

of twenty-one years and a son or daughter of what-

ever age who is incapacitated from earning a living

and without sufficient means.

* * *

78-45-3. Duty of a man. — Every man shall support

his wife and his child.

78-45-4. Duty of a woman. — Every woman shall

support her child; . . .

XR X *

78-45-9. Enforcement of right to support — Powers

of state department of public welfare. — The obligee

may enforce his right of support against the obligor

and the state department of public welfare may pro-

ceed on behalf of the obligee to enforce his right of

support against the obligor. . . .

7

Under the Utah statutory scheme both males and fe-

males in the eighteen to twenty-one age group have a right

to support. Thus, even if it could be said that appellant had

standing to represent her daughter’s interest in attacking

a statute which discriminated between men and women of

different ages, there is no such discrimination under the Utah

statutory scheme.

Finally, even if appellant otherwise has standing to

attack the statute because it has the effect of preventing her

from suing her ex-husband for amounts which allegedly

accrued after her daughter became eighteen, she is estopped

from now seeking such sums.

For over one hundred years it has been clear under Utah

law that the word child“ when used in the context of sup-

port payments refers to girls eighteen and under. Thus, when

appellant and appellee stipulated on November 29, 1960

that appellee should pay an agreed amount to appellant as

support for the children it was clear that support payments

for Sherri were only to continue until she reached the age

of eighteen.

As a result of the stipulation the trial court ordered

that appellee pay 8100.00 per month for each child.” Thus,

by the very agreement which established appellee’s obligation

for support payments, appellant voluntarily relinquished

any right she had to enforce such payments to her after

Sherri reached her majority.

This court has long recognized the doctrine of equitable

estoppel. In Dickerson vs. Colgrove, 100 U.S. 578, 580, 25

L.Ed. 618 (1879) the doctrine was explained in the following

words:

{H]e who by his language or conduct leads another

to do what he would not otherwise have done, shall

not subject such person to loss or injury by disappoint-

ing the expectations upon which he acted.

See also, Kirk vs. Hamilton, 102 U.S. 68, 26 L.Ed. 79 (1880);

Casey vs. Galli, 94 U.S. 673, 24 L.Ed. 168 (1877).

In the instant case appellant agreed by stipulation to

accept on behalf of her daughter the sum of $100.00 per

month as child support. She thereby impliedly gave up any

right to collect support owed to her daughter once she

reached adulthood at age eighteen. In reliance upon this

agreement appellee has greatly altered his financial position

by using the money which would otherwise have been used

as support payments for other purposes. In addition, appel-

lant did not begin this action until more than two years after

Sherri reached the age of eighteen. Such forebearance clearly

constituted conduct which appellee could reasonably view

as further affirmation of the validity of the stipulation as it

related to child support.

Application of the doctrine of estoppel in this case must

lead to the conclusion stated above, viz., that appellant is

without standing. Appellant has no immediate int rest in

the effect of § 15-2-1 for she is not in the eighteen to twenty-

one age group affected. She is only affected by the statute

with regard to her right to sue her husband for unpaid sup-

port payments; but her interest in them is only that of a

trustee or fiduciary. She thus lacks the personal stake in an

attack on the constitutionality of the statute necessary to

insure concrete adverseness. In any case, by virtue of the

stipulation which she signed on November 29, 1960, appel-

lant waived her right (but not her daughter’s) to bring an

action for unpaid support after Sherri became an adult.

9

POINT II.

THE ISSUE RAISED BY APPELLANT IS NOW

MOOT

It is well established that the federal judiciary cannot

review cases which are moot, since article III of the United

States Constitution requires the existence of a case of con-

troversy”. Liner vs. Jafco, Inc., 375 U.S. 301, 306 (1964);

Powell · 3. McCormack, 395 U.S. 486, 496 (1969): This court

has st: ted:

Flederal courts are without power to decide ques-

tions that cannot affect the rights of the litigants. . .

before them. North Carolina vs. Rice, 404 U.S. 244,

246 (1971)

In the instant case appellant attacks § 15-2-1 on the

grounds that it unfairly discriminates between men and

women in the eighteen to twenty-one age group. But as to

appellant and her daughter this question is clearly moot.

Appellant herself is much older than twenty-one. Her

daughter, Sherri, whose interest appellant appears to wish

to represent is similarly over the age of twenty-one (Sherri

became twenty-one on February 12, 1974).

Thus, even if appellant has standing to represent her

daughter’s interest, neither she nor her daughter possess

rights which can be affected by the outcome of this pro-

ceeding. The issue is, therefore, moot.

POINT III.

THIS COURT SHOULD APPLY THE RATION-

AL BASIS TEST

In equal protection cases this court has adopted a two-

tiered approach. Where legislation has appeared to impinge

upon a “fundamental right or to be based upon ‘suspect’

10

criteria,” it has been subjected to strict judicial scrutiny. See,

for example, Bolling vs. Sharpe, 347 U.S. 497 (1954); Kore-

matsu vs. United States, 323 U.S. 214 (1944). In such cases

the burden has been placed upon the state to demonstrate

that the challenged legislation serves a compelling state

interest.

In all other cases the court applies the “rational basis”

test which requires only that

the classification must be reasonable, not arbitrary,

and must rest upon same ground of difference having

a fair and substantial relation to the object of the

legislation, so that all persons similarly circumstanced

shell be treated alike. F. S. Royster Guano Co. vs.

Virgim.:. 253 U.S. 412, 415 (1920)

Under this test the individual attacking the statute has the

burden of proving that it does not rest upon any reasonable

basis, but is essentially arbitrary.” Lindsley vs. Natural Car-

bonic Gas Co., 220 U.S. 61, 79, 55 L.Ed. 369, 377 (1911).

Until recently it was clear that the rational basis test

was applicable in cases of alleged sex-based discrimination.

Goessaert vs. Cleary, 335 U.S. 464 (1948); Muller vs. Oregon,

208 U.S. 412 (1908). Appellant contends, however, that in

two fairly recent cases this court has adopted the strict

scrutiny test, or something very similar to it, in sex discrimi-

nation cases.

In Reed vs. Reed, 404 U.S. 71, 30 L.Ed.2d 225 (1971)

the court was asked to consider the constitutionality of an

Idaho statute which provided that as between individuals

equally qualified to act as estate administrators, men must

be preferred to women. In defining the issue thus presented

the court stated:

11

The question presented by this case, then, is whether

a difference in the sex of competing applicants for

letters of administration bars a rational relations hi

to a state objective that is sought to be advanced by

the operation of . . . {the Idaho statute}. 404 U.S.

at 76 {Emphasis added}.

The language of the above quotation certainly supports the

assumption that some form of the rational basis test was

used. Appellant, however, contends that the decision sets

forth a kind of hybrid test calling for greater judicial scru-

tiny. As support for this proposition appellant points to

the court’s statement that a statutory scheme treating indi-

viduals differently on the basis of sex is “subject to scru-

tiny... Id. at 75. This view overlooks the fact that the

court obviously was aware of the significance of the expres-

sion strict scrutiny”, choosing instead to speak only of

scrutiny.“ Furthermore, since the decision contains no men-

tion of “compelling state interests” or of the burden of

proving the same, it is reasonable to assume that this test

was not applied.

In Reed the court struck down the Idaho statute on the

grounds that it gave mandatory preference to males merely

to accomplish the elimination of a hearing on the merits to

determine qualification. Thus, according to the court, even

though the object of reducing the workload on probate courts

may be legitimate, this means could not be accomplished by

eliminating females from consideration through “arbitrary

legislative choice. Id. at 76. Reed therefore appears to

add to the rational basis test the caveat that while a statutory

scheme may logically further some legitimate legislative ob-

ject, the means adopted has no rational constitutional basis

if the unequal treatment is an arbitrary preference based

12

solely upon sex. In effect, Reed retains the rational basis

test, but eliminates administrative convenience as an accept-

able rational basis in sex discrimination cases. As will be

seen, administrative convenience is not advanced as reason

for the statute here under attack.

A second case cited by appellant as supporting its theory

that strict scrutiny should be applied here is Frontiero vs.

Richardson, 411 U.S. 677 (1973). There the court struck

down a United States statute which allowed servicemen to

claim their wives as dependents for certain benefits, but a

servicewoman could claim her husband only if she paid over

one-half his support. No clear rule emerges from the de-

cision. Justice Brennan writing for four members of the

court applied the strict scrutiny test. Justice Powell’s concur-

ring opinion in which Justice Blackmun and the Chief

Justice joined applied the rational basis test. Justice Stewart

concurred in the judgment but did not indicate what test

should be applied. Justice Rehnquist in dissent agreed with

the District Court decision which applied the rational basis

test.

At the outset it must be recognized that Frontiero pro-

vides little precedence as to the applicable test. This court

has stated that lack of agreement by a majority of the court

on principles of law prevents a decision “from being author-

itative determination for others cases.” United States vs. Pink,

315 U.S. 203, 216 (1941). See also, 20 Am. Jur. 2d Courts

§ 195.

In any case the differing views are probably more a

matter of semantics than expressions of philosophical differ-

ences. The government's explanation for the statute was

identical to that advanced in Reed, viz.: administrative effi-

15

ciency. 411 U.S. at 681, 682. Justice Brennan’s decision, in the

context of this particular case, may simply stand for the

proposition that where administrative convenience is ad-

vanced as the sole reason for adopting a particular statute,

the proponent must sustain the burden required by the strict

scrutiny test. Id, at 688, 690. This view is consistent with

the court’s statement in Shapiro vs. Thompson, 394 U.S.

618, 633 (1969) that “{t}he saving of welfare costs cannot

justify an otherwise invidious classification.”

Justice Stewart's concurring opinion is based, in part,

upon Reed. As noted above, Reed simply eliminates adminis-

trative convenience as an acceptable explanation under the

rational basis test. Presumably, however, a statute may still

be sustainable, even where its underlying policy is adminis-

trative convenience, if the state bears the burden of demon-

strating a compelling interest which cannot be achieved by

less drastic means. Thus the two views are not necessarily

contradictory.

Furthermore, in two subsequent cases in which the ques-

tion has been raised, this court has refused to apply the strict

scrutiny test in upholding statutes which utilized sex-based

discrimination.

In Kahn vs. Shevin, ........ aS , 94 S.Ct. 1734

(1974) the court sustained a Florida statute which allowed

a $500.00 property tax exemption to widows, but no exemp-

tion to widowers, The majority opinion stated that the statute

rested upon some ground of difference having a fair and

substantial relation to the object of the legislation. 94 S.Ct.

at 1737 citing Reed, supra. It further noted that the state

tax was “reasonably designed to further the state policy...”

Id. {Em, asis added}.

In Geduldig vs. Aiello, ........ = , 94 S.Ct. 2485

(1974) a California statute was upheld which prohibited

payment of state medical insurance benefits for expenses

arising from normal pregnancies. The majority opinion

stated that such a statutory scheme was “rationally support-

able.” 94 S.Ct. at 2491. Although the decisio~ does not

specifically refer to the rational basis test, it is manifest that

this is the test which was used. The dissenting opinion makes

this particularly clear.

If, as appellant contends, the court in Reed and Fron-

tiero laid down a rule of stricter scrutiny than employed in

traditional rational basis test, it is equally true that this test

was abandoned in Kahn and Geduldig. In both of these de-

cisions Reed and Frontiero were distinguished by the majority

on grounds applicable to the instant case.

In Kahn, for example, the majority opinion noted that

Reed and Frontiero were distinguishable because in those

cases the proponent attempted to justify the statutory scheme

as being “solely for administrative convenience.” 94 S.Ct.

at 1737 (emphasis added by the court). As in Kahn, in the

instant case administrative convenience is not a reason for

adoption of the statute. On the contrary, administrative pro-

cedure would be greatly simplified by a standardization of

the age of majority.

In Geduldig the majority opinion distinguished Reed

and Frontiero on the fact that the statutory scheme was based

upon pregnancy rather than gender per se. 94 S.Ct. 2492 n.

20. The court pointed to the presence of women in both the

excluded and included classes as evidence of the non sex-

based nature of the discrimination. Id. (By contrast, in Reed

under the Idaho statute no woman could be appointed as

15

administratrix where she was in competition with a male;

and in Frontiero no woman who provided less than half

her husband’s support could receive dependent’s benefits.)

The instant case is more nearly similar to the facts in

Geduldig. The Utah statute is based primarily upon two

characteristics: age and marital status. Within the age dis-

tinction is a sex-based subgrouping. As to appellant the sex-

based distinction has no direct application since a male sim-

ilarly situated would have identical rights to those of appel-

lant. Moreover, of the two classes created by the statute —

minors and adults — males and females may be found in

both. Similarly, since minority is ended by marriage under

the statute, in the eighteen to twenty-one age group there

may be both male and female adults. These facts indicate

that sex is a secondary consideration under the statute, unlike

the statutory schemes in Reed and Frontiero.

From the foregoing it is clear that the rational basis

test of Kahn and Geduldig should be applied.

It should be further noted that a majority of federal

courts have utilized some form of the rational basis test in

sex-based discrimination cases. Among recent court of appeal

decisions see, for example, the following: Miskunas vs. Union

Carbide Corp., 399 F.2d 847 (7th Cir. 1968); Robinson vs.

Board of Regents of Eastern Kentucky University, 475 F.2d

707 (6th Cir. 1973); Morris vs. Michigan State Board of

Education, 472 F.2d 1207 (6th Cir. 1973); Gruenwald vs.

Gardner, 390 F.2d 591 (2nd Cir. 1968); Lamb vs. Brown,

456 F.2d 18 (10th Cir. 1972); Eslinger vs. Thomas, 476 F.2d

225 (4th Cir. 1972); Schattman vs. Texas Employment Com-

mission, 459 F.2d 32 (Sch Cir. 1972); Paiewonsky vs. Paie-

wonsky, 446 F.2d 178 (3rd Cir. 1971).

16

POINT IV.

THERE IS A RATIONAL BASIS TO THE DIS-

TINCTION DRAWN BY SECTION 15-2-1

As noted above, the rational basis test requires that

the classification must be reasonable, not arbitrary,

and must rest upon some ground of difference having

a fair and substantial relation to the object of the leg-

islation, so that all persons similarly circumstanced

shall be treated alike. Royster Guano Co., supra.

The starting point in any equal protection case must

therefore be an inquiry as to the object of che legislation. As

to § 15-2-1, it is clear that the underlying legislative objec-

tive is to establish an objectively identifiable point in time

when a member of society is given the responsibilities and

benefits of adulthood. The mean chosen to establish this

object was to adopt a st ite setting forth the prerequisite to

emancipation: marriage, or the attainment of a particular

age.

In order for the legislature to set this standard it was

necessary to make a determination as to what segments of

society were most capable of coping with the rights and re-

sponsibilities of adulthood. The Utah legislature decided

that married individuals, single men over twenty-one, and

single women over eighteen belonged to the groups best

suited for emancipation.

Unfortunately, any determination as to the age of adult-

hood, whether in Utah or in any other state, is not one easily

supportable by empirical means; rather it is one based upon

human experience. Indeed, this determination was one

which the legislative branch, rather than the judiciary was

best suited to make.

17

In Baker vs. Carr, 369 U.S. 186 (1962) this court ex-

amined the doctrine of nonjusticiability where political ques-

tions were concerned. The decision provides the following

lists of factual situations involving political questions:

. . . a textually demonstrable constitutional commit-

ment of the issue to a coordinate political department;

or a lack of judicially discoverable and manageable

standards for resolving it; or the impossibility of de-

ciding without an initial policy determination of a

kind clearly for nonjudicial discretion; or the im-

possibility of a court’s undertaking independent reso-

lution without expressing lack of the respect due

coordinate branches of government; or an unusual

need for unquestioning adherence to a political de-

ision already made; or the potentiality of embarrass-

ment from multifarious pron#uncements by various

departments on one question. 369 U.S. at 217.

As defined above the setting of the age of majority

is clearly a political question. There are, for example, no

“judicially discoverable and manageable standards” for

resolving the question of when a person is an adult. Simi-

larly, any determination that a particular age should be

adopted, or that the present distinction is without rational

basis requires a “determination of a kind clearly for non-

judicial discretion.”

The Utah Supreme Court recognized the political

nature of the issue posed when it stated:

We think this case and the proposal under considera-

tion provides a very good example of why the courts

should not initiate a change in the law as advocated

by the plaintiff. If such a change is desirable, that

is a matter which should commend itself to the atten-

tion of the legislature. 517 P.2d 1010, 1013.

If the policy determination of the legislature is accepted

(i.e., that young married individuals are better suited for

18

adulthood than singles, or that eighteen-year-old girls are

better suited than boys of similar age), the Utah statute

clearly meets the requirements of the rational basis test. The

adopting of a majority statute has a fair and substantial re-

lation to the object of emancipating worthy infants. Simi-

larly, the legislature has emancipated all individuals who it

has determined are equally situated as to qualification for

emancipation.

Several facts may be adduced which support the above

determination. For example, appellee requests this court

to take judicial notice of the fact that women mature physi-

cally at an earlier age than men. The legislature may have

also concluded that women mature emotionally ac an earlier

age.

The legislature may have felt that women should be

emancipated earlier than men because they finish their edu-

cation at an earlier age. Statistics published by the United

States Department of Health, Education and Welfare indi-

cate that a higher proportion of men are enrolled in college

than women and a much higher proportion of men than

women are in graduate school.

The 1972 study shows that 33,462 male Utah residents

were enrolled in undergraduate courses; while only 26,151

women were similarly enrolled. On the graduate level there

were 5,507 males and 2,287 females. National Center for

Education Statistics, Fall Enrollment in Higher Education

1972, 52, 53 (1972).

It has also been established that women marry earlier

than men. See United States Department of Commerce, Sta-

tistical Abstract of the United States 1974, 68 (1974).

19

Finally, a large number of young male members of the

Church of Jesus Christ of Latter-day Saints (often called the

Mormon Church) leave their homes at age nineteen or

twenty to serve in missions in other parts of the country or

in foreign lands. (The parties’ son Rick is currently serving

such a mission.) An unpublished report of the Church’s

missionary department indicates that at the beginning of

1973 there were over 5,000 such young men from Utah

proselyting in Church missions. There were also about 700

Utah women, all of whom are older than twenty-one. All

of these missionaries are supported through private dona-

tions of friends and family members.

In view of such facts the legislature may have felt that

women were better able to seek support payments directly

from their fathers without the aid of their mothers (because

less likely to be in school or on a mission). Or it may have

been felt that women of the eighteen to twenty age group

was more physically and emotionally mature.

Whatever the reason,

Legislatures are presumed to have acted constitu-

tionally even if source materials normally resorted to

for ascertaining their grounds for action are other-

wise silent, and their statutory classifications will be

set aside only if no grounds can be conceived to jus-

tify them. McDonald vs. Board of Election Committee

of — 394 U.S. 802, 809, 22 L.Ed.2d 739, 745

(1969).

In this case there are ample grounds to justify § 15-2-1.

The legislature should therefore be presumed to have acted

constitutionally.

20

POINT V.

IF THE COURT HOLDS THAT THE STATUTE

IS UNCONSTITUTIONAL, IT SHOULD SET

THE AGE OF MAJORITY IN MALES AND FE-

MALES AT EIGHTEEN.

In Point III. of its Brief appellant contends that invali-

dation of § 15-2-1 can only lead to reversion to the common

law age of majority: twenty-one. This statement clearly im-

plies that this court’s only recourse is to eliminate a statutory

classification, rather than extending benefits to all individuals

similarly situated. This is not the case.

In Skinner vs. Oklahoma, 316 U.S. 535 (1941) the court

struck down a statute which required sterilization of certain

classes of criminals. Since one basis of the decision was that

the state could not justify the distinction between classes of

criminals, the state apparently urged the court to extend

coverage of the act to all classes. The court noted that such

an extension was within its province, but declined to do

so on the ground that enlargement or contraction would not

necessarily solve the constitutional difficulty.” 316 U.S.

at 543.

The ability of the court to expand or contract was

further noted in Welsh vs. United States, 398 U.S. 333 (1969)

where Justice Harlan in his concurring opinion stated:

Where a scatute is defective because of underinclu-

sion there exists two remedial alternatives: a court

may either declare it a nullity and order that its bene-

fits not extend to the class that the legislature intended

to benefit, or it may extend the coverage of the

statute to include those who are aggrieved by ex-

clusion. Id. at 361.

21

It is ironic that the statute under attack here largely has

the effect of providing benefits to women at an earlier age

than men. Yet it is a woman in the capacity of a fiduciary

to her daughter who is attacking the enactment. In its Brief

appellant notes that the statute benefits eighteen-, nineteen-,

and twenty-year-old women by allowing them to enter into

contracts, bring suit, and administer estates, at an earlier age

than males (p. 23). (To this list may be added the fact that

the statute allows women to buy liquor at an earlier age.

Section 32-7-15, Utah Code Annotated (1953, Supp. 1973)).

At the same time appellant urges elimination of these

rights Sy complete invalidation of the statute (p. 29, 30).

A more rational approach would be to extend the above

benefits to males eighteen years of age and older. Indeed,

federal and state legislatures have made it clear that they

feel age requirements for rights closely associated with ma-

jority should be lowered. See, for example, the 26th Amend-

ment to the United States Constitution which lowered the

minimum voting age to eighteen; the Selective Service Act,

50 U.S.C. §§ 451, et seq. which establishes that every male

of eighteen years and older has a military service obligation;

§ 74-1-1, Utah Code Annotated (1953) givi ; eighteen-year-

olds the legal ability to write wills; §§ 41-2-1, et seq. which

makes drivers eighteen years and older solely responsible

for their acts of negligence and removes restrictions on pro-

curement of driver’s license after that age; §§ 55-10-63, et

seq. which establishes jurisdiction of the juvenile court over

those younger than eighteen; and § 76-10-103 which pro-

hibits sale of tobacco to persons under nineteen years of

age. Viewing such facts the Utah Supreme Court in its de-

cision in this case stated:

22

Assume that we take judicial cognizance of the

trend in the differing role of women, perhaps we

should similarly notice the trend toward the earlier

emancipation and fuller freedom of conduct of

minors; and that this applies to both boys and girls.

One indication of this is the recent reduction of the

age for voting to 18. Stanton vs. Stanton, 30 Utah 2d

315, 319, 517 P.2d 1010 (1974).

In several recent sex-based discrimination cases courts

chose to extend benefits to an excluded class, rather than

deny benefits to the benefited class. In Harrigfeld vs. Dis-

trict Court of Seventh Judicial District, 511 P.2d 822 (Idaho

1973), a statutory scheme almost identical to that under

present consideration was held to violate the Fourteenth

Amendment. There, however, the state adopted the position

taken by appellant here: namely, that the statute must fall

entirely and the common law age of majority (twenty-one)

be applied. 511 P.2d at 827. The court rejected this argu-

ment, opting instead for a setting of the age of majority at

eighteen. In so doing it cited recent adoption in Idaho of

the Uniform Probate Code which established the earlier age

of minority for both men and women. Id.

In Moritz vs. Commissioner of Internal Revenue, 469

F.2d 466 (10th Cir. 1972) the court declared that a statutory

scheme violated equal protection which allowed a tax de-

duction to single women for support of an invalid parent,

but allowed no similar deduction for a single man. Rather

than voiding the statute, however, the court extended the

deduction to single males. 469 F.2d at 470. In so doing the

court noted the disruption which would have been caused by

invalidating the entire section. Id., n. 5.

Similarly, in People vs. Ellis, 10 Ill.App.3d 216, 293

N.E.2d 189 (1973), and Lamb vs. Brown, supra, courts held

23

that statutes setting a different age limit for men and women

subject to the jurisdiction of juvenile courts violated the

Equal Protection Clause. However, the courts chose to ex-

tend the benefits of juvenile court supervision to the ex-

cluded class rather than completely invalidating the statuory

scheme or reducing the age limit to that of the excluded class.

See also, In the Matter of Patricia A., 31 N. V. 2d 83, 335

N.Y.S.2d 33 (1972).

The instant statute provides an excellent example of an

enactment, the benefits of which should be expanded, not

contracted. The legislature and the state Supreme Court

have indicated a preference for lowering the age of maiority

in males rather than raising it for females. (See the dis-

cussion above.) The benefits of majority are considerable and

should be extended to as many members of society as possi-

ble. And perhaps most importantly, to completely invalidate

the statute would work hardship upon many divorced

fathers, who in good faith have relied upon the § 15-2-1 in

halting support payments to their wives when a daughter

reached age eighteen. To reach a different decision would be

to invite the disruption warned against in Moritz, supra.

Admittedly, an equalizing of the age of majority will

not please appellant. However, appellee submits that in

determining whether to expand, constrict, or completely

destroy the statutory scheme, the court’s attention should be

focused on the class of individuals at whom the legislation

is directed. This class is clearly young people approaching

adulthood. The legislation is not aimed at appellant. Her

interest is at best derivitive.

Thus, the inquiry should be whether the best interests

of eighteen-, nineteen-, and twenty-year-olds are served by

24

excluding them from the benefits of adulthood or extending

these benefits to them. Since §§ 78-45-1, et seq. guarantees

these individuals a right of support to age twenty-one, it is

difficult to conceive of any reasons why this court should

not choose to set the age of majority at eighteen.

CONCLUSION

Based upon the foregoing, appellee, James Lawrence

Stanton, Jr., respectfully requests that this appeal be dis-

missed because of appellant’s lack of standing and because

the issue raised is now moot.

Quite apart from such procedural deficiencies, however,

appellee submits that the statutory scheme under attack here

meets the requirements of the court’s rational basis test,

and indeed of the modified “strict scrutiny” test suggested

by appellant.

In any case, even if the statute were held to be uncon-

stitutional, this court should lower the age of majority in

men rather than voiding the entire statute, thereby raising

the age of majority for women to twenty-one.

Respectfully submitted,

D. GARY CHRISTIAN

KIPP AND CHRISTIAN

520 Boston Building

Salt Lake City, Utah 84111

Attorney for Appellee