Manistee Bank & Trust Co. v. McGowan

• Citation: 394 Mich. 655,232 N.W.2d 636
• Decision Date: 08 September 1975
• Docket Number: No. 8,8
• Parties: MANISTEE BANK & TRUST CO., Administrator of the Estate of Mardelle H. Williams, Plaintiff and Appellant, v. William G. McGOWAN and Walter L. Pamame, Defendants and Appellees. 394 Mich. 655, 232 N.W.2d 636
• Court: Supreme Court of Michigan

Page 636

232 N.W.2d 636

394 Mich. 655 MANISTEE BANK & TRUST CO., Administrator of

the Estate of Mardelle H. Williams, Plaintiff and Appellant, v. William G. McGOWAN and Walter L. Pamame, Defendants and Appellees.

No. 8.

394 Mich. 655, 232 N.W.2d 636

Supreme Court of Michigan.

Sept. 8, 1975.

Jennings, DeVries & Gockerman by Bruce C. Gockerman, Manistee, for plaintiff and appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Joseph B. Bilitzke, Carl K. Carlsen, Asst. Attys. Gen., Michigan Dept. of State, MVACF-Legal, Lansing, for defendants and appellees.

Michigan Trial Lawyers Assn. by Clifford H. Hart, Leitson, Dean, Dean, Segar & Hart, P.C., Flint, and Sheldon L. Miller, Lopatin, Miller, Bindes & Freedman, Detroit, assisted by: Victoria S. Heldman, Law Student at University of Detroit, for amicus curiae.

Before the Entire Bench except SWAINSON and LINDEMER, JJ.

LEVIN, Justice.

An act of the Legislature provides that the owner of an automobile driven with permission is subject to liability if it is negligently driven and causes damage to property or injury or death to a person. The act further provides that neither the owner nor a driver is liable for injury or death caused a guest passenger by negligent driving. ¹

The act expressly permits a guest passenger, along with everyone else, to recover for grossly negligent driving. But this does not save the classification if it is otherwise unreasonable. To tell a person who cannot prove gross negligence, but can prove ordinary negligence, that he could have recovered if he had been able to prove gross negligence is not much different than consoling a marooned person with the thought that if he had wings he could fly.

The question before us is whether this statutory exception to the general rule of common law and statutory liability for negligent driving deprives a guest passenger of due process and equal protection of the laws under the state or federal constitutions.

Mardelle Williams was killed as a result of an accident which occurred while she was a guest passenger in an automobile owned by defendant Pamame and driven by defendant McGowan.

Before trial, the plaintiff, administrator of the estate of Mardelle Williams, moved to strike that portion of the answer relying on the guest passenger exception claiming that it violates the due process and equal protection clauses. ² The trial court denied the motion because it felt 'bound by the doctrine of stare decisis and the guest passenger act has heretofore been held to be constitutional in the State of Michigan.'

In his opening statement, the lawyer for Pamame and McGowan admitted that McGowan was guilty of ordinary negligence. The jury returned a verdict of no cause of action.

This Court granted leave to appeal prior to decision by the Court of Appeals.

We hold the guest passenger exception unconstitutional as violative of the Equal Protection Clause of the Michigan Constitution (Const.1963, art. 1, § 2) and reverse and remand for trial on the question of damages.

I

Guest passenger statutes were enacted in about half the states during the 1920's and 1930's. ³

Connecticut, in 1927, ⁴ was the first state to enact a guest statute ⁵ and, in 1937, the first state to repeal its guest statute. ⁶

In 1929 Michigan enacted a guest statute ⁷ which this Court held constitutional in 1931. Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, 74 A.L.R. 1189 (1931).

No state has enacted a guest statute since 1939. ⁸

Despite substantial criticism in the courts as well as academia, ⁹ these statutes withstood constitutional attack until the California Supreme Court, in Brown v. Merlo, 8 Cal.3d 855, 882, 106 Cal.Rptr. 388, 407, 506 P.2d 212, 231 (1973), held that the California guest statute violates the equal protection guarantees of the state and federal constitutions for the reason that 'the classifications which the guest statute creates between those denied and those permitted recovery for negligently inflicted injuries do not bear a substantial and rational ralation to the statute's purposes of protecting the hospitality of the host-driver and of preventing collusive lawsuits.'

Since the Brown decision, a number of states have considered the constitutionality of their guest statutes. Kansas, ¹⁰ North Dakota ¹¹ and Idaho ¹² have held their guest statutes unconstitutional. Texas, ¹³ Iowa, ¹⁴ Utah, ¹⁵ Delaware, ¹⁶ Oregon, ¹⁷ Colorado, ¹⁸ and South Dakota ¹⁹ declined to follow the California lead; the Delaware court said that 'elimination of a Guest Statute is more properly within the realm of legislative action.' ²⁰

II

There are two principal problems in judicial review under the Equal Protection Clause: The role of the courts in constitutional adjudication and the test to be applied. The questions of what role and which test are interrelated. The choice of test is frequently determinative of the judicial role.

It has been argued that judicial amendment or abrogation of the guest passenger exception is inappropriate and that the legislature is the proper forum for the necessary inquiries and deliberations.

All agree that the power of the legislature is not without limits. '(T)hat those limits may not be mistaken, or forgotten, the constitution is written.' Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). And that those limits not be exceeded, the courts are entrusted with the responsibility to review and the power to nullify legislative acts which are repugnant to the constitution. ²¹

The question when and how actively a court should exercise its power of constitutional review has engendered vigorous debate. ²²

It has been said that 'legislatures exist to decide the wisdom of statutes, courts exist to decide their constitutionality.' ²³ That the legislative solution appears undesirable, unfair, unjust or inhumane does not of itself empower a court to override the legislature and substitute its own solution. ²⁴ A legislative classification need not be drawn with 'mathematical nicety;' ²⁵ 'rough accommodations,--illogical, it may be, and unscientific' will do. ²⁶ Statutes are cloaked with a presumption of constitutional validity. The burden of rebutting that presumption is on the person challenging the statute.

One can accept the philosophy of judicial restraint which lies behind 'rules' explicating the heavy burden that must be borne by one who assails the constitutionality of a presumptively valid and incontestably wise statute, and still recognize 'the responsibility of the courts to strike the statute' where 'the legislature's judgment of the wisdom of a statute is shown to conflict with a constitutional limitation on legislative power.' ²⁷

Justice Harlan was of the opinion that all equal protection questions ²⁸ should be resolved applying the standard of rationality. He found 'nothing which entitles this court to pick out particular human activities, characterize them as 'fundamental,' and give them added protection under an unusually stringent equal protection test.' His rejection of the fundamental interest characterization reflected his insistence on judicial restraint lest the Court become a 'super-legislature.' ²⁹

Notwithstanding Justice Harlan's views, the United States Supreme Court developed a two-tiered ³⁰ approach to equal protection cases.

If the interest is 'fundamental' or the classification 'suspect,' the court applies a 'strict scrutiny' test requiring the state to show a 'compelling' interest which justifies the classification. Rarely have courts sustained legislation subjected to this standard of review. ³¹

Other legislation, principally social and economic, is subjected to review under the traditional equal protection test. The burden is on the person challenging the classification to show that it is without reasonable justification. It has been said that '(a) statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' ³² A classification will stand unless it is shown to be 'essentially arbitrary.' ³³ Few statutes have been found so wanting in 'rationality' as to fail to satisfy the 'essentially arbitrary' test. ³⁴

It has been noted recently that the United States Supreme Court, under a 'revitalized' traditional equal protection test, has found a number of social and economic statutes unconstitutional. ³⁵

Professor Gunther sees in a group of cases decided during and preceding the 1971 term of Court an emerging new standard of equal protection which he calls 'means scrutiny.' He suggests that the Court, expanding on the 'rational basis/compelling state interest' dichotomy, appears to be willing to take a moderately activist position without invoking the 'strict scrutiny' formula.

Relying on the traditional equal protection test, the California, Idaho, Kansas and North Dakota ³⁶ Supreme Courts held their guest passenger statutes unconstitutional; the Supreme Courts of Texas, Iowa, Utah, Delaware, Oregon, Colorado and South Dakota, relying on the same standard, reach the opposite result.

One commentator explains the apparent inconsistency by suggesting that there are really two traditional equal protection standards--Dandridge ³⁷ and Reed ³⁸--and 'the test selected will predetermine the result the court will reach.' ³⁹ The Dandridge 'any conceivable state of facts' standard ⁴⁰ literally precludes analysis of the classification and will not support a finding of unconstitutionality, while the Reed 'fair and substantial relation to the object of the legislation' standard invites the court to examine and determine whether the classification bears a real relation to the perceived purposes.

This Court has employed the fair-and-substantial-relation-to-the-object-of-the-legislation test, dubbed 'means scrutiny' by Gunther, in some recent cases where acts of the Legislature have been found unconstitutional:

'Are the enactment's classifications based on natural distinguishing characteristics...