Gange v. Clerk of Burleigh County Dist. Court

• Decision Date: 20 September 1988
• Docket Number: No. 870389,870389
• Citation: 429 N.W.2d 429
• Parties: Mary Lou GANGE, on behalf of herself and others similarly situated, unknown as a class, Plaintiff and Appellant, v. CLERK OF BURLEIGH COUNTY DISTRICT COURT and Department of Public Instruction, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 429

429 N.W.2d 429

Mary Lou GANGE, on behalf of herself and others similarly situated, unknown as a class, Plaintiff and Appellant, v. CLERK OF BURLEIGH COUNTY DISTRICT COURT and Department of Public Instruction, Defendants and Appellees.

Civ. No. 870389.

Supreme Court of North Dakota.

Sept. 20, 1988.

Baer & Asbridge, Chartered, Bismarck, for plaintiff and appellant; argued by Richard B. Baer.

Laurie J. Loveland (argued), Asst. Atty. Gen., Bismarck, for defendant and appellee Dept. of Public Instruction.

Anna M. Frissell, Asst. State's Atty., Bismarck, for defendant and appellee Clerk of Burleigh County Dist. Court. Appearance by Anna M. Frissell.

MESCHKE, Justice.

Mary Lou Gange appealed from a district court judgment upholding, as constitutional, a statute which requires collection of a $50 fee from every person filing a divorce action to fund a displaced homemaker program. We affirm.

Section 14-06.1-15, N.D.C.C., assesses a $50 fee against every person filing "a petition for dissolution of marriage, annulment, or separation from bed and board." This fee, called a "marriage dissolution fee" by the parties, is in addition to the regular $20 filing fee for civil actions [see Sec. 11-17-04(1), N.D.C.C.], but may be waived if the person is indigent. See Sec. 27-01-07, N.D.C.C. The $50 fee is not assessed against any other civil litigant.

Gange sued the Clerk of the Burleigh County District Court alleging that the marriage dissolution fee is an unconstitutionally discriminatory tax. She requested that the court: 1) order the clerk to file her divorce action upon the payment of the regular $20 filing fee; 2) prohibit the clerk from spending fees previously collected and order an accounting of them; 3) order a refund of the fees previously paid; and 4) permit the lawsuit to proceed as a class action. The trial court immediately directed the clerk to accept a $20 filing fee from Gange for her divorce action. Later, the Department of Public Instruction was added as a defendant.

The trial court rejected Gange's constitutional challenges to the marriage dissolution fee, denied Gange's requested relief and ordered that she pay the full $70 filing fee for her divorce action. Gange appealed. ¹

DISPLACED HOMEMAKER PROGRAM

The clerk of court is required by Sec. 14-06.1-15 to send the $50 marriage dissolution fee to the State Treasurer to fund the "displaced homemaker program" created by Chapter 14-06.1, N.D.C.C. The State Legislature, when it enacted Chapter 14-06.1 in 1981, declared that many persons in this state become "displaced" without any source of income through separation, divorce, death, or disability of their spouse. See Sec. 14-06.1-01, N.D.C.C. ² The Legislature thus created a program to help these persons with job counseling [Sec. 14-06.1-05, N.D.C.C.], job training [Sec. 14-06.1-06, N.D.C.C.], health counseling and money management training [Sec. 14-06.1-09(1) and (2), N.D.C.C.], assistance in finding permanent employment [Sec. 14-06.1-08, N.D.C.C.], and other services. The state contracts with and makes grants to nonprofit organizations for the services to displaced homemakers.

The Superintendent of Public Instruction was authorized under Sec. 14-06.1-10, N.D.C.C., to establish eligibility requirements, but "[a]ny interpretation of eligibility for services should have as first priority the service of displaced homemakers." A "displaced homemaker" was defined in Sec. 14-06.1-02(2), N.D.C.C., as an individual who:

"a. Has worked in the individual's home providing unpaid services for household members;

"b. Has been or is unemployed or underemployed;

"c. Has had or will have difficulty finding employment; and

"d. (1) Is widowed, divorced, separated, or abandoned; or

"(2) Because of the disability of the individual's spouse, is displaced from the individual's former economically dependent role."

Section 14-06.1-14, N.D.C.C., created a "displaced homemaker account" for deposit of the marriage dissolution fees collected by the clerks of court. Section 14-06.1-16(1), N.D.C.C., made a continuing appropriation of $250,000 "or so much thereof as may be necessary" per biennium from the The administrator of the displaced homemaker program in the Department of Public Instruction since 1983 testified that:

account for the program. The statute further made a continuing appropriation of "any additional funds that may become available through grants, gifts, or other sources," but these funds may be spent only upon approval of the Emergency Commission. Sec. 14-06.1-16(2), N.D.C.C. At least 95 percent of the funds appropriated are required to be used for the "direct provision" of displaced homemaker services. Sec. 14-06.1-16(1) and (2), N.D.C.C.

"6. For the fiscal year ending June, 1986, 474 individuals were enrolled in the displaced homemaker program. Of those 474 individuals, 267 persons (or 56.33%) were divorced, 78 (or 16.46%) were separated, 27 (or 5.70%) were widowed, 84 (or 17.72%) were abandoned, and 18 (or 3.80%) were married with a disabled spouse.

"7. For the fiscal year ending June, 1987, 387 individuals were enrolled in the displaced homemaker program. Of those 387 individuals, 232 (or 59.95%) were divorced, 117 (or 30.23%) were separated, 25 (or 6.46%) were widowed, 2 (or .52%) were abandoned, and 11 (or 2.84%) were married with a disabled spouse."

For the fiscal years prior to 1986, the statistical data on individuals enrolled in the program was similar. Since 1983 all of the funds for the program have come from the marriage dissolution fee imposed by Sec. 14-06.1-15, N.D.C.C.

CONSTITUTIONALITY

Both sides agreed that the marriage dissolution fee is a "tax" for purposes of constitutional analysis. See Menz v. Coyle, 117 N.W.2d 290, 297 (N.D.1962). Gange asserted that the marriage dissolution fee violates: 1) the due process and equal protection clauses of the federal constitution and the equal protection provisions of the state constitution; 2) Article X, Sec. 3 of the state constitution which requires that a tax statute state distinctly its object and that the tax be applied to that object alone; 3) Article X, Sec. 12 of the state constitution which requires all moneys belonging to the state to be paid to the State Treasurer and disbursed only pursuant to legislative appropriation; and 4) former Article IV, Sec. 43 of the state constitution which prohibited the enactment of local or special laws. ³

I

Gange contended that the marriage dissolution fee violates the 14th Amendment to the federal constitution and Article I, Secs. 21 and 22 ⁴ of the state constitution. Gange's arguments under each of these provisions were intertwined and were based primarily upon her underlying assertion that Chapter 14-06.1, N.D.C.C., "creates a separate class of citizens in a vague way and confers upon 'displaced homemakers' special privileges not available to everyone...." Because the methods of analysis for resolving challenges to legislative classifications under these constitutional provisions are essentially the same [see Nygaard v. Robinson, 341 N.W.2d 349, 357 n. 1 (N.D.1983); So. Valley Grain Dealers v. Bd. of County Comm'rs, 257 N.W.2d 425, 435 (N.D.1977) ], we, like the trial court, address these challenges together under an equal protection analysis.

When a statute is challenged on equal protection grounds, we first locate the appropriate standard of review. We apply strict scrutiny to an inherently suspect classification or infringement of a fundamental right and strike down the challenged statutory classification "unless it is shown that the statute promotes a compelling governmental interest and that the distinctions drawn by the law are necessary to further its purpose." State ex rel. Olson v. Maxwell, 259 N.W.2d 621, 627 (N.D.1977). When an "important substantive right" is involved, we apply an intermediate standard of review which requires a " 'close correspondence between statutory classification and legislative goals.' " Hanson v. Williams County, 389 N.W.2d 319, 323, 325 (N.D.1986) [quoting Arneson v. Olson, 270 N.W.2d 125, 133 (N.D.1978) ]. When no suspect class, fundamental right, or important substantive right is involved, we apply a rational basis standard and sustain the legislative classification unless it is patently arbitrary and bears no rational relationship to a legitimate governmental purpose. See State v. Knoefler, 279 N.W.2d 658, 662 (N.D.1979). We apply a rational basis standard in this case for two reasons.

First, no inherently suspect classification is involved here, nor are we convinced that, for all purposes, the right to divorce constitutes a fundamental right. While the right to marry has been characterized as being of "fundamental importance," [ Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 680, 54 L.Ed.2d 618 (1978) ], "[n]o decision of the Supreme Court stands squarely for the proposition that state restrictions on divorce must be evaluated under the same exacting standards as restrictions on ... the right to marry." Murillo v. Bambrick, 681 F.2d 898, 902-903 (3d Cir.), cert. denied, 459 U.S. 1017, 103 S.Ct. 378, 74 L.Ed.2d 511 (1982). See also Sosna v. Iowa, 419 U.S. 393, 406, 95 S.Ct. 553, 561, 42 L.Ed.2d 532 (1975) [Court applied rational basis test in upholding a state's one year durational residency requirement for divorce]; Developments in the Law: The Constitution and the Family, 93 Harv.L.Rev. 1156, 1309 (1980) ["The Supreme Court has not recognized a substantive constitutional right to divorce."]

Second, and more important, even if we were to elevate the right to divorce to a fundamental status or recognize it as an important substantive right for this purpose, the challenged law must be shown to "significantly interfere" with the right to obtain a divorce before a court need apply heightened scrutiny. Zablocki v. Redhail, supra, 434 U.S. at 386, 98 S.Ct. at 681; Califano v. Jobst, 434 U.S. 47, 54, 98 S.Ct. 95, 99-100, 54 L.Ed.2d 228...