Johnston v. Hodges, 420.

• Decision Date: 25 March 1974
• Docket Number: No. 420.,420.
• Citation: 372 F. Supp. 1015
• Parties: Bee I. JOHNSTON, Plaintiff, v. F. E. HODGES, Director, Division of Driver Licensing, Department of Public Safety of the Commonwealth of Kentucky, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

372 F. Supp. 1015

Bee I. JOHNSTON, Plaintiff, v. F. E. HODGES, Director, Division of Driver Licensing, Department of Public Safety of the Commonwealth of Kentucky, Defendant.

No. 420.

United States District Court E. D. Kentucky, Frankfort Division.

March 25, 1974.

Robert A. Sedler, Lexington, Ky., Donna Morton Maier, Louisville, Ky., for plaintiff.

Mary Jo Arterberry, Dept. of Transp., Frankfort, Ky., for defendant.

MEMORANDUM

SWINFORD, District Judge.

This action challenges the constitutionality of the sex-based mandatory preference embodied in K.R.S. 186.470 (1):

"The application of any minor under the age of eighteen (18) for an operator's license, motorcycle operator's license or any instruction permit shall not be granted unless the application is signed by the father of the applicant, if the father is living and has custody of the applicant, otherwise by the mother or guardian having the custody of the minor. If the minor has no father, mother or guardian, an operator's license or instruction permit shall not be granted . . . unless his application is signed by a person willing to assume the obligation imposed by KRS 186.590 . . . ."

K.R.S. 186.590(1) imputes the negligence of a minor motorist to the person signing the license application.

The facts as alleged in the complaint and admitted in the answer indicate that on November 3, 1972, the plaintiff accompanied her minor son to the Jefferson County Driver Licensing Office for the purpose of signing his application for an instruction permit. The officials in charge declined to accept Johnston's signature when informed that the youth was under the joint custody of his father.

The plaintiff has moved for summary judgment, claiming that K.R.S. 186.470(1) is unconstitutional insofar as it denies married mothers a coordinate right to assume the responsibility imposed by K.R.S. 186.590(1); the legislation allegedly erects an arbitrary classification between persons similarly situated which fulfills no compelling governmental interest. The parties have been afforded an opportunity for the submission of arguments and the record is before the court for decision.

An inquiry preliminary to the constitutional determination is that of identifying the standard against which this statute must be judged. Depending upon the magnitude of the affected interest, the Supreme Court has through frequent interaction with the Equal Protection Clause formulated two references for weighing classificatory legislation. The "traditional" test is employed where the assailed provision merely specifies different treatment for similar groups:

"The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them."¹

This rather lenient standard is defensible by the "practical" problems of government which may "justify, if they do not require, rough accommodations—illogical, it may be, and unscientific." Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 57 L. Ed. 730 (1913).

The cursory judicial overview sponsored by the traditional test is displaced by a more restrictive scrutiny where legislation treats "fundamental" positions or rights:

"This test, which becomes applicable when a fundamental right of the aggrieved party is at issue or a suspect classification . . . is used, requires that to justify the classification, the state must demonstrate a compelling state interest." Robinson v. Board of Regents of Eastern Kentucky University, 6th Cir., 475 F.2d 707, 710 (1973).

Fundamental rights and protected classes recognized through imposition of this concept include race², alienage³, nationality⁴, religion⁵, travel⁶, procreation⁷, and criminal appeals⁸.

Until recently, equal protection challenges predicated upon sex-based classifications have been adjudicated by reference to the traditional standard.⁹ A more stringent judgmental plateau was reached in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), which condemned an Idaho statute denying letters of estate administration to females where there was an equally qualified male aspirant. Although ostensibly applying the traditional test, the standard recited by the Court was considerably more stringent than that previously utilized:

"A 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 legislation, so that all persons similarly circumstanced shall be treated alike.' . . . The question presented by this case . . . is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced . . . ." Id. at 76, 92 S.Ct. at 254, quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920).

This attitude was subsequently reflected in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), striking classifications bearing "no significant relationship" to a legitimate objective, and Police Department of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972), questioning "whether there is an appropriate governmental interest suitably furthered by the differential treatment." Most authorities applying this altered standard concluded that the Court was in reality enunciating a new and more circumspect scrutiny of statutory classifications:

"Under this approach courts are constrained to examine the actual empirical relationship between the classification and its lawful object `rather than accept one hypothetical legislative justification to the exclusion of others . . .' and also to determine whether there is a less restrictive way to achieve these goals."¹⁰

However, in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), a plurality of the Court interpreted Reed as not merely enunciating an intermediate test, but implicitly identifying sex as a "suspect classification" demanding application of the "compelling interest" inquiry:

"What differentiates sex from such nonsuspect statutes as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.

* * * * * *

"With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny." Id. at 686-688, 93 S.Ct. at 1770.

The post-Frontiero judicial attitude has variously embraced the "compelling interest" test as the governing standard¹¹, applied the more traditional measure¹², or declared a choice unnecessary because of the unconstitutionality of the examined statute under either philosophy¹³. This court concludes from an examination of these opinions that sex-based discrimination must survive the "compelling interest" test applied in Frontiero. It is apparent that the classificatory language in K.R.S. 186.470(1) falls far short of satisfying this demanding standard.

It is initially argued that allowing women to "turn 16 and 17 year old family members loose on the highways" would violate Kentucky legislation preventing wives from acting as sureties; K.R.S. 404.010(2) provides:

"A married woman shall never be the joint maker of a note or a surety on any bond or obligation of another, other than her husband, without the joinder of her husband with her in making such contract unless her separate estate has been set apart for that purpose by mortgage or other conveyance . . . ."

The defendant erroneously presupposes the applicability of this prohibitory section to the assailed language of K.R.S. 186.470(1). It would be specious to presume that one signing a minor's license application is properly designated a surety. See 50 Am.Jur. "Suretyship", Section 2. Rather, K.R.S. 404.010(2) plainly refers to the assumption of contractual obligations¹⁴, while the liability of a sponsoring adult under K.R.S. 186.470(1) and 186.590 is ex delicto in nature.¹⁵ The independent posture of the two statutes is further evinced by the language in K.R.S. 186.470, permitting married women to sign license applications where the father exercises no custody over the minor.

It is also contended that granting wives a concurrent right to sponsor license applicants would unfairly obligate a potentially unwilling father under the family purpose doctrine; this argument evokes a spectre inconsistent with the philosophy underlying the doctrine. First, liability under the family purpose doctrine is attributed to the party who owns or controls the subject vehicle rather than the individual who supports the family:

"We have never held that the father is liable merely because he is the head of the family . . . . In Steele v. Age's Adm'x, 233 Ky. 714, 26 S.W.2d 563, it was held that the family purpose doctrine was applicable to the mother where she, though married, owned the car and maintained it for general use, pleasure, and convenience of members of her family." McNamara v. Prather, 277 Ky. 754, 756, 127 S.W.2d 160, 161 (1939).

Accord, Richardson v. True, Ky., 259 S. W.2d 70 (1953); Wallace v. Hall, 235 Ky....