Branson v. City and County of Denver

• Decision Date: 30 September 1985
• Docket Number: No. 84SA5,84SA5
• Citation: 707 P.2d 338
• Parties: Birdie L. BRANSON, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, Board of Trustees of the Firemen's Pension Fund of the City and County of Denver; and Elvin R. Caldwell, in his official capacity as Secretary to the Board of Trustees of the Firemen's Pension Fund, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 338

707 P.2d 338

Birdie L. BRANSON, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, Board of Trustees of the Firemen's Pension Fund of the City and County of Denver and Elvin R. Caldwell, in his official capacity as Secretary to the Board of Trustees of the Firemen's Pension Fund Defendants-Appellees.

No. 84SA5.

Supreme Court of Colorado En Banc.

Sept. 30, 1985.

Rehearing Denied Nov. 4, 1985.

A. Bruce Jones, Bruce W. Sattler and Kathryn E. Miller, Holland & Hart, Denver, for plaintiff-appellant.

Stephen H. Kaplan, Denver City Atty., and Dianne E. Eret, Asst. City Atty., Denver, for defendants-appellees.

DUBOFSKY, Justice.

The plaintiff, Birdie L. Branson, appeals the judgment of the Denver district court affirming the decision of the defendants, the Board of Trustees of the Firemen's Pension Fund for the City and County of Denver (the board), that denied her benefits as the surviving spouse of a disabled Denver firefighter because she was not married to the firefighter at the time he applied for retirement. The district court held that section 31-30-509, 12 C.R.S. (1977), restricting widows' benefits to widows who married retired firemen before they applied for retirement, ¹ did not violate the guarantees of equal protection in the fourteenth amendment to the United States Constitution and in article II, section 25 of the Colorado Constitution. ² We reverse.

William L. Branson retired from the Denver Fire Department with a disability retirement pension after serving as a fireman for 20 years and nine months. He married Birdie L. Branson on February 7, 1963, four years after his retirement. The Bransons remained married until William Branson's death on April 26, 1976. In December 1982, Birdie Branson applied for benefits from the Firemen's Pension Fund. Her application was denied because section 31-30-509, 12 C.R.S. (1977), which governed the payment of benefits to widows of retired firemen in cities with populations greater than 100,000, only granted benefits to widows who married the firemen before the firemen applied for retirement. ³

Branson brought suit in Denver district court, appealing the board's decision under C.R.C.P. 106 and requesting declaratory relief under C.R.C.P. 57. The district court affirmed the board's action, holding that the classification under the statute, which prevents only the widows of retired firefighters in cities of over 100,000 from receiving survivors' benefits, did not violate equal protection because marital status at the time of the firefighter's retirement was a rational basis for determining the beneficiaries of firemen's pension funds. Branson appealed that decision to this court.

Article 30 of title 31 of the Colorado Revised Statutes sets forth the statutory scheme for firemen's and policemen's pensions. The parts of article 30 address separately pensions for policemen in general, policemen in cities of over 100,000, firemen in general and firemen in cities of over 100,000. Except for the statute involved in this case, none of the pension provisions restricts benefits for surviving spouses to those who married before the fireman's or policeman's retirement. See § 31-30-321(1)(c), 12 C.R.S. (1984 Supp.) (policemen in general); § 31-30-407(2) (firemen in general); § 31-30-415(10) (volunteer firemen); § 31-30-608(2) (policemen in cities of over 100,000). The limitation of benefits for widows of retired firemen in cities over 100,000 is the result of a 1945 amendment that also restricted widows' eligibility to those widows whose marriages were "legally performed by a duly authorized person." Ch. 247, sec. 6, § 456H., 1945 Colo.Sess.Laws 698, 703. The second restriction, withholding benefits from common law marriage widows, was held unconstitutional by this court in Carter v. Firemen's Pension Fund, 634 P.2d 410 (Colo.1981). At issue here is the first restriction, which denies benefits according to the time of marriage rather than the manner of marriage.

Branson acknowledges that the standard by which the statute must be examined to determine whether it deprives the plaintiff of equal protection of the laws is the "rational basis" standard. Carter, 634 P.2d 410; Kistler v. Industrial Commission, 192 Colo. 172, 556 P.2d 895 (1976). The rational basis test is applied in equal protection analysis of statutes that do not create a "suspect classification" or impinge on a fundamental right. Mosgrove v. Town of Federal Heights, 190 Colo. 1, 5, 543 P.2d 715, 718 (1975).

Under the rational basis test a statutory classification will be upheld if the classification is reasonable and if it bears a rational relationship to legitimate state objectives. Austin v. Litvak, 682 P.2d 41, 50 (Colo.1984); Dawson by and through McKelvey v. P.E.R.A., 664 P.2d 702, 707 (Colo.1983). Moreover, under rational basis analysis, a statute is presumed to be constitutional and a plaintiff has the burden of proving its invalidity beyond a reasonable doubt. Dawson, 664 P.2d at 708. We conclude that Branson has met the burden established by the rational basis test.

The city has advanced several reasons for the distinctions between policemen and firemen (the hazards of firefighting are different from those of police work), between cities of less than 100,000 and cities of over 100,000 (the hazards of firefighting are different in rural areas), and between widows who marry firefighters before and after they retire (widows who marry firefighters before they retire share the daily hazards of their active duty). None of these proposed reasons supports the classification at issue in this case because they do not explain the distinction drawn by the legislature. For instance, the statute does not affect all widows of retired firemen and policemen in cities of over 100,000 whose marriage occurred after retirement nor does it affect all widows of firemen who married after the firemen retired regardless of the size of the city providing the retirement benefits.

The legitimate governmental goal that the city has proposed to justify the classification scheme is a legislative effort to promote fiscal certainty. The city suggests that the legislature might have been concerned with the financial stability of firemen's pension funds in cities of over 100,000, and thus limited pension benefits for widows to those whose interest would vest at the firemen's retirement because they were already married to the firemen. Although the suggested legislative preoccupation with the fiscal viability of firemen's pension funds in cities of over 100,000 to the exclusion of other firemen's and policemen's pension funds may seem unwise to us, our role is not to second-guess the legislature, but only to determine whether the statutory classification bears a rational relationship to any legitimate legislative goal.

We conclude that the statutory scheme does not serve the legislative goal of fiscal certainty in a rational way. The statute excludes a surviving widow who married a fireman after he retired, but does not exclude surviving dependent children who were born after the fireman's retirement, § 31-30-510, 12 C.R.S. (1984 Supp.), thus destroying the "fiscal certainty" that the city suggests the legislature meant to achieve. Further, a spouse whose rights were vested might die, and the fireman might remarry, but the new spouse would not receive the benefit of the fireman's vested right to a pension for his surviving spouse. Therefore, the statute does not provide fiscal certainty by excluding benefits for dependents of firemen whose relationship to the firemen arose after the firemen retired.

We can find no rational basis for a benefit scheme that refuses benefits only to widows of retired firemen in cities of over 100,000 who married firemen after they applied for retirement. See Carter, 634 P.2d at 413. The statutory scheme arbitrarily deprives these widows of equal protection of the laws, and therefore violates the guarantees of the fourteenth amendment of the United States Constitution and section 25 of article II of the Colorado Constitution. ⁴ We hold that the restriction in section 31-30-509 defining a surviving widow as one "whom such officer, member, or employee married previous to his application for retirement or previous to April 5, 1945" is unconstitutional beyond a reasonable doubt and may not be applied. ⁵

Judgment reversed and cause remanded.

ROVIRA, J. dissents.

ERICKSON and KIRSHBAUM, JJ., join in the dissent.

ROVIRA, Justice, dissenting:

I respectfully dissent.

As noted in the majority opinion, the facts in this case are not in dispute. Therefore, our only task is to determine whether the statutory provision in question violates Birdie L. Branson's constitutional rights under the fourteenth amendment to the United States Constitution and article II, section 25, of the Colorado Constitution.

I agree with the majority that the standard of review by which section 31-30-509, 12 C.R.S. (1977), must be examined to determine whether the plaintiff has been deprived of equal protection of the law is the "rational basis standard." I also agree that under this standard there is a presumption of constitutionality and the burden is on the plaintiff to establish its unconstitutionality beyond a reasonable doubt. However, I do not agree that Branson has met the burden of showing that the statutory classification is unreasonable and bears no rational relationship to legitimate state objectives. See at 340.

Both this court and the United States Supreme Court have often held that a statute is not constitutionally suspect or unreasonable on its face simply because it results in some inequality, or excludes one or more persons from its coverage. See, e.g., Dawson v. Public Employees' Retirement Association, 664 P.2d 702, 709 (Colo.1983) (upholding distinction between children of prior marriage and children and surviving spouse of decedent for purposes of eligibility for pension benefits); ...