Jurado v. Popejoy Const. Co.

• Decision Date: 28 May 1993
• Docket Number: No. 68212,68212
• Citation: 853 P.2d 669,253 Kan. 116
• Parties: , 61 USLW 2761, 28 A.L.R.5th 857 Rosa Hilda JURADO, individually, and Rosa Hilda Jurado, as next friend of Vonneik Jurado, Allan Fermin Jurado, and Omar Jurado, Appellants, v. POPEJOY CONSTRUCTION COMPANY and Aetna Life and Casualty Company, Appellees.
• Court: Kansas Supreme Court

Page 669

853 P.2d 669

253 Kan. 116, 61 USLW 2761, 28 A.L.R.5th 857

Rosa Hilda JURADO, individually, and Rosa Hilda Jurado, as

next friend of Vonneik Jurado, Allan Fermin

Jurado, and Omar Jurado, Appellants, v. POPEJOY CONSTRUCTION COMPANY and Aetna Life and Casualty

Company, Appellees.

No. 68212.

Supreme Court of Kansas.

May 28, 1993.

Syllabus by the Court

1. The determination of the constitutionality of K.S.A. 44-510b(i), limiting workers compensation death benefits of dependents who are nonresident aliens to the sum of $750, involves a consideration of the constitutional rights of the employee, not his or her dependents.

2. While the Workers Compensation Act creates a separate right of action in dependents "for their benefit" if the worker dies, that right of action is derived from the deceased employee and the liability of an employer to an injured or deceased employee arises out of the contract between them.

3. This court and the United States Supreme Court have used three basic standards to determine whether a legislative classification violates the right to equal protection of the law.

4. Although K.S.A. 44-510b(i) does not discriminate against employees based on the employees' alienage, it does discriminate against a class of employees based on their dependents' alienage. Because the dependents' rights are derived from and dependent upon the employee's right, the application of the statute treats differently those employees whose dependents are nonresident aliens. Its disparate treatment is based on alienage.

5. A statute creating a classification based on alienage with respect to the employee resident alien is subject to strict scrutiny. Under these circumstances, the burden of proof to justify the classification shifts to the proponent of the statute; the statute will be upheld as constitutional only if its classification is necessary to serve a compelling State interest.

6. The reasons advanced by the State for classification based on alienage are not compelling and fail to pass even the "rational basis" test for determination of equal protection.

7. The disparate treatment under K.S.A. 44-510b(i) between employees with nonresident alien dependents and other employees is unconstitutional and violative of the Equal Protection Clauses of both the Kansas and the United States Constitutions.

Richard D. Ralls, of Wirken & King, Kansas City, MO, argued the cause, and Cindy Sesler Ballard and Deborah A. Polk, were with him on the briefs, for appellants.

Kendall R. Cunningham, of Hershberger, Patterson, Jones & Roth, Wichita, argued the cause, and Tamara L. Davis and Michael T. Harris, of the same firm, were on the brief, for appellees.

David O. Alegria, of McCullough, Wareheim & LaBunker, P.A., Topeka, was on the brief, for amicus curiae AFL-CIO.

Kirk W. Lowry, of Palmer & Lowry, Topeka, was on the brief, for amicus curiae Kansas Trial Lawyers Ass'n.

G. Gordon Atcheson, of Blake & Uhlig, P.A., Kansas City, was on the brief, for amicus curiae American Civil Liberties Union.

DAVIS, Justice:

This is a workers compensation appeal involving the constitutionality of a statute limiting nonresident alien dependents' death benefits to $750. Under the Workers Compensation Act, all other dependents' death benefits are fixed in an amount not to exceed $200,000. The trial court upheld the constitutionality of the statute. We reverse and remand for further proceedings consistent with our opinion.

On August 21, 1990, 39-year-old Fermin A. Jurado, a resident alien of Mexico, died as a result of massive head injuries he received while working for Popejoy Construction Company (Popejoy) located near Syracuse, Kansas. He had lived and worked in Kansas since 1988. He moved to Kansas to learn English and eventually pursue his profession as an engineer in this country. He had received an engineering degree from the Technological Institute of the City of Juarez in Mexico in 1979. At the time of his death, he was survived by his wife and three children, ages 7, 4, and 2, all of whom were residents and citizens of the Republic of Mexico. It was his plan to move his dependents to the United States as soon as he had mastered the English language well enough to obtain employment as an engineer.

Upon his death, Aetna Life and Casualty Company issued a check to his dependents in the amount of $750 on behalf of Popejoy, paid pursuant to K.S.A. 44-510b(i), which provides:

"If the [deceased] employee does not leave any dependents who are citizens of or residing at the time of the accident in the United States, the amount of compensation shall not exceed in any case the sum of $750."

All other dependents, including resident alien dependents, are covered by K.S.A. 44-510b(h), which authorizes compensation benefits "not [to] exceed a total amount of $200,000."

In upholding the constitutionality of K.S.A. 44-510b(i), the district court concluded that neither the state nor federal Equal Protection Clauses extend to nonresident aliens. The dependents filed their appeal with the Court of Appeals. On motion, we granted a transfer of the appeal to this court.

While this appeal involves only one issue, the approach used in deciding this issue is of critical importance. A threshold question must first be resolved as to whether our determination involves a consideration of the constitutional rights of the deceased employee, or whether the resolution involves a consideration of the constitutional rights of the employee's dependents. Consistent with the conclusion of the district court, Popejoy urges this court to find that the dependents, as nonresident aliens, are afforded no constitutional protections. Thus, according to its contention, because nonresident aliens have no constitutional rights to advance, the statutory amount awarded must stand. The dependents, however, urge us to consider the constitutionality of this statute based upon the constitutional protections afforded to the resident alien employee.

Employee's or Dependents' Rights

We begin our discussion with the conclusion that the issue before us does not depend upon the existence or nonexistence of the rights of the dependents but, rather, involves a consideration of the constitutional rights of the resident alien employee, now deceased.

In a recent case decided by the Florida Supreme Court involving almost identical facts, the court concluded:

"However, we do not perceive this case as hinging on the constitutional rights of the surviving dependents, but on the constitutional rights of the worker, now deceased."

De Ayala v. Florida Farm Bureau Cas. Ins., 543 So.2d 204, 206 (Fla.1989).

In De Ayala, a statute similar to ours provided coverage for nonresident alien dependents in an amount up to $1,000, but provided other dependents benefits in an amount up to $100,000. De Ayala was involved in a motor vehicle accident while he was working for a Florida business. The decedent was survived by his dependent parents, wife, and six minor children, all of whom were residents and citizens of the Republic of Mexico. Prior to his death, the decedent had lived and worked in the United States for 25 years. The Florida Supreme Court rejected without any discussion the respondent's contention that, as nonresident aliens, the dependents were not entitled to assert the constitutional principles that form the basis of this action. The Florida Supreme Court merely concluded that the constitutional rights of the surviving dependents did not determine the issue, but the approach must be based on a consideration of the constitutional rights of the worker, now deceased. 543 So.2d at 206.

Justice Overton's dissenting opinion in De Ayala clearly articulates Popejoy's argument that we should focus on the rights of the nonresident alien dependents. Justice Overton states:

"This conclusion that a decedent has constitutional rights has no legal basis. I find the law is clear that a decedent has no constitutional rights. The heirs and beneficiaries, upon the decedent's death, can assert only their own rights--not the rights of the corpse. This principle was aptly stated in J. Gray, The Nature and Sources of the Law 38 (2d ed. 1921) as follows:

'Included in human beings, normal and abnormal, as legal persons, are all living beings having a human form. But they must be living beings; corpses have no legal rights.' (Emphasis added.)

In State v. Powell, 497 So.2d 1188, 1190 (Fla.1986), cert. denied 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 856 (1987), this Court agreed with the principle, stating:

'In addressing the issue of the statute's constitutionality, we begin with the premise that a person's constitutional rights terminate at death. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Silkwood v. Kerr-McGee Corp., 637 F.2d 743 (10th Cir.1980), cert. denied 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 111 (1981); Guyton v. Phillips, 606 F.2d 248 (9th Cir.1979), cert. denied 445 U.S. 916, 100 S.Ct. 1276, 63 L.Ed.2d 600 (1980). If any rights exist, they belong to the decedent's next of kin.' (Emphasis added.)" 543 So.2d at 208, Overton, J., dissenting.

The two basic cases cited by Justice Overton in his dissent do not, in our opinion, provide a sound basis for his conclusion, particularly under the facts of this case. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, reh. denied 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973), the Supreme Court did not hold that a person's constitutional rights terminate upon death. At most, Roe v. Wade held that a fetus that is not yet viable outside the womb is not a person for the purposes of the Fourteenth Amendment. In Silkwood v. Kerr-McGee Corp., 637 F.2d 743 (10th Cir.1980), cert. denied 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 111 (1981), the court was considering the plaintiffs' claim that actions after the employee's death violated her civil rights. Under those circumstances, the court held that "the civil rights...