Butte Community Union v. Lewis

Decision Date16 January 1986
Docket NumberNo. 85-449,85-449
Citation43 St.Rep. 65,712 P.2d 1309,219 Mont. 426
PartiesBUTTE COMMUNITY UNION, et al., Plaintiffs and Respondents, v. Dave LEWIS, as Director of the Montana State Department of Social and Rehabilitation Services, Defendant and Appellant.
CourtMontana Supreme Court

Russell E. Cater, argued, Sp. Asst. Atty. Gen., SRS, Michael S. Becker, argued, Sp. Asst. Atty. Gen., Helena, for defendant and appellant.

James Goetz, argued, Bozeman, Russell A. LaVigne, Jr., Montana Legal Services, Helena, Peggy Verberg, Robert L. Deschamps, Missoula Co. Atty., Missoula, for plaintiffs and respondents.

James P. Reynolds, Helena, Butte Ministerial Ass'n, City of Anaconda, City of Walkerville, International Union of Operating Engineers, Local 375, Butte, Women's Lobbyist fund, Robert Hayes, New York City, National Coalition for the Homeless, Gough, Shanahan, Johnson & Waterman, Joseph P. Mazurek, Helena, Montana Catholic Conference, Helena, for amicus curiae.

MORRISON, Justice.

The District Court of the First Judicial District issued a preliminary injunction enjoining Dave Lewis, Director of Montana's Department of Social and Rehabilitation Services (SRS), from implementing certain provisions of House Bill 843 (Chapter No. 670, 1985 Mont. Laws). Lewis appeals. We affirm the issuance of the preliminary injunction and issue a permanent injunction for the same purpose.

In response to a complaint filed by Butte Community Union in February of 1984, the Honorable Arnold Olsen issued a preliminary injunction June 29, 1984, prohibiting the Department of Social and Rehabilitation Services (SRS) from implementing proposed regulations establishing AFDC guidelines as the guidelines for determining general assistance (GA) benefits. Thereafter, the 1985 Montana Legislature enacted House Bill 843 establishing cash payment levels for GA recipients in accordance with Judge Olsen's order. House Bill 843 also eliminates GA payments to able-bodied individuals under thirty-five who have no minor dependent children and substantially restricts GA payments to able-bodied individuals between thirty-five and fifty who have no minor dependent children.

On June 3, 1985, Butte Community Union (respondents) filed an amended complaint challenging the constitutionality of HB 843 and requesting the court to issue a preliminary injunction forbidding SRS from implementing that part of HB 843 which restricts or denies GA benefits to able-bodied individuals with no minor children. Following a hearing and briefing by the parties, the trial court issued a preliminary injunction on July 1, 1985, the date HB 843 was to go into effect.

In its findings, conclusions and order, the trial judge held that art. XII, section 3(3) of the Montana Constitution establishes a fundamental right to welfare "for those who, by reason of age, infirmities, or misfortune may have need for the aid of society." That section states:

(3) The legislature shall provide such economic assistance and social and rehabilitative services as may be necessary for those inhabitants who, by reason of age, infirmities, or misfortune may have need for the aid of society.

He further held that respondents (plaintiffs below) raised serious questions concerning whether HB 843 establishes an impermissible, discriminatory constitutional classification, thus violating the respondents' constitutional guarantee of equal protection. Finally, he held that a preliminary injunction should issue because respondents established a prima facie case that HB 843 is unconstitutional and because they showed that it is "doubtful whether or not they will suffer irreparable injury before their rights are fully litigated."

The preliminary injunction was issued and SRS appeals, raising the following general issue:

Whether the defendant, Dave Lewis, as a public official, should be enjoined from implementing those provisions of HB 843 which restrict or deny general assistance benefits to able-bodied persons under the age of fifty who do not have minor dependent children?

The following sub-issues are assigned for review:

1. Whether the District Court used an incorrect standard for issuing the preliminary injunction?

2. Whether HB 843 violates art. XII, section 3(3), of the Montana Constitution?

3. Whether HB 843 violates equal protection or due process constitutional guarantees?

4. Whether HB 843 violates the Montana Human Rights Act?

We hold that Dave Lewis, as a public official, should be permanently enjoined from implementing the pertinent provisions of HB 843. However, our reasons for this injunction differ markedly from those of the trial judge. We find that the Montana Constitution does not establish a fundamental right to welfare for the aged, infirm or misfortunate. However, because the constitutional convention delegates deemed welfare to be sufficiently important to warrant reference in the Constitution, we hold that a classification which abridges welfare benefits is subject to a heightened scrutiny under an equal protection analysis and that HB 843 must fall under such scrutiny.

Respondent contends that the result of this legislation is forbidden by the Constitution. Respondent argues the Legislature must fund welfare for the misfortunate. However, because the legislation at issue today is discriminatory in nature, determining its constitutionality calls for equal protection analysis. It is not necessary that we address the broader question of whether there is a constitutional directive to the Legislature for the funding of welfare which can not be avoided under any set of circumstances.

The fourteenth amendment to the Federal Constitution and article II, section 4 of the Montana Constitution provide that "[n]o person shall be denied the equal protection of the laws." The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government. J. Nowak, R. Rotunda and J.N. Young, Constitutional Law, Chpt. 16, Sec. 1 (2d ed. 1983).

Equal protection analysis traditionally centers on a two-tier system of review. If a fundamental right is infringed or a suspect classification established, the government has to show a "compelling state interest" for its action. If the right is other than fundamental, or the classification not suspect, the government has only to show that the infringement or classification is rationally related to a governmental objective which is not prohibited by the Constitution. J. Nowak, supra.

In the instant case, the trial judge held the right to welfare to be fundamental. We can not agree. In order to be fundamental, a right must be found within Montana's Declaration of Rights or be a right "without which other constitutionally guaranteed rights would have little meaning." In the Matter of C.H. (Mont.1984), 683 P.2d 931, 940, 41 St.Rep. 997, 1007. Welfare is neither.

Art. XII, Sec. 3(3) of the 1972 Montana Constitution, the section on which the trial judge relies, is not part of the Declaration of Rights. Art. II, Sec. 3 is the only section in the Declaration of Rights which arguably could create a right to welfare. It states:

Inalienable rights. All persons are born free and have certain inalienable rights. They include the right ... of pursuing life's basic necessities....

Mont. Const., art. II, Sec. 3 (1972). The official committee comment to that provision states The intent of the committee on this point is not to create a substantive right for all for the necessities of life to be provided by the public treasury.

There is no constitutional right to welfare within the Montana Constitution's Declaration of Rights. Further, the right to welfare is not a right upon which constitutionally guaranteed rights depend. In fact, welfare is more properly characterized as a benefit. Since welfare is not a fundamental right, strict scrutiny does not apply and the State need show something less than a compelling state interest in order to limit that right.

Traditionally courts have applied a "rational basis" test for equal protection analysis where a fundamental right is not implicated. Rational basis is easily satisfied. The more stringent test, strict scrutiny requiring the state to show a compelling state interest, is seldom satisfied.

The United States Supreme Court only recently has begun to recognize the problem the two-tier system creates. G. Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harvard L.Rev. 1, 17-20 (1972). Initially, the Court was particularly concerned with gender-based discrimination. Unable, or unwilling, to recognize gender as a suspect class, the Court still recognized that Congress should not be able to discriminate between the sexes on any "conceivable basis." The Court therefore adopted, in Craig v. Boren (1976), 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, 407, the middle-tier of review for analyzing gender-based discrimination. The Court said such discrimination will be upheld only when the government can show that the classification it has used is "substantially related" to an "important governmental objective."

Variations of this middle-tier test, or at least a failure to apply either of the other tests, have been recognized in discrimination cases involving illegitimate children (New Jersey Welfare Rights Organization v. Cahill (1973), 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543, and Weber v. Aetna Casualty & Surety Co. (1972), 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768); limitations on the right to vote (Rosario v. Rockefeller (1973), 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1); and mandatory retirement for police officers (Police Department of the City of Chicago v. Mosley (1972), 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212), to name a few.

Yet, the United States Supreme Court has consistently refused to apply this middle area of review to welfare and other social economic cases. In 1977, the...

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