McCourtney v. Cory

• Decision Date: 02 September 1981
• Citation: 176 Cal.Rptr. 639,123 Cal.App.3d 431
• Court: California Court of Appeals Court of Appeals
• Parties: . Forster, Gwenllian J. Mallory and Theresa L. Armijo, Plaintiffs and Respondents, v. Kenneth CORY, Controller of the State of California, Defendant and Appellant. Civ. 58869. Court of Appeal, Second District, Division 2, California

Page 639

176 Cal.Rptr. 639

123 Cal.App.3d 431

Pauline C. McCOURTNEY, Elizabeth D. Forster, Gwenllian J. Mallory and Theresa L. Armijo, Plaintiffs and Respondents, v. Kenneth CORY, Controller of the State of California, Defendant and Appellant.

Civ. 58869.

Court of Appeal, Second District, Division 2, California.

Sept. 2, 1981.

Rehearing Denied Sept. 22, 1981.

Hearing Denied Nov. 13, 1981.

George Deukmejian, Atty. Gen. and John J. Crimmins, Deputy Atty. Gen. by John J. Crimmins, Deputy Atty. Gen., for defendant and appellant.

Stroock & Stroock & Lavan, William H. Levit and Margaret A. Nagle, Los Angeles by William H. Levit and Margaret A. Nagle, Los Angeles, for plaintiffs and respondents.

FLEMING, Associate Justice.

Plaintiffs, who are surviving spouses of deceased judges, obtained a declaratory judgment from the superior court against the Controller of the State of California to require payment for life of their allowances as surviving spouses, even though the provisions of the Judges' Retirement Law which authorized their allowances specify termination of the allowances on remarriage. Plaintiffs successfully argued that because other provisions of the Judges' Retirement Law authorize allowances for other classes of surviving spouses for life, termination of their spousal allowances on remarriage is an invalid discrimination against marriage and a violation of the equal protection and due process clauses of the state and federal constitutions. Defendant Controller has appealed.

The evolution of the Judges' Retirement Law (Gov.Code, §§ 75000 ff.) falls into three phases.

1. In 1953 the present Judges' Retirement Law was adopted, which provided an allowance for a retiring or disabled judge of half the salary of his office. (Gov.Code, § 75032.) No allowance was provided for a surviving spouse. Later that year a provision was added allowing a retiring or disabled judge to apply the actuarial equivalent of his retirement allowance to a lesser optional settlement payable to the judge for life and thereafter to his surviving spouse for life. (Gov.Code, §§ 75070, 75071.)

2. In 1959 judges' retirement benefits were increased, and for the first time an allowance was provided for a retiring judge's surviving spouse. A judge who qualified for retirement by reason of age and service became entitled to an allowance of 65 or 75 percent of the salary of his office (Gov.Code, § 75076). An allowance of half that amount was provided for his surviving spouse, which would continue until the death or remarriage of the surviving spouse (Gov.Code, § 75077). Similar benefits were provided for a judge retiring for disability and for his surviving spouse. (Gov.Code, §§ 75060, 75077.) Earlier, the legislature had authorized an allowance for the surviving spouse of a judge who dies in office while eligible for retirement, an allowance of half the eligible retirement allowance of the deceased judge, which would continue until the death or remarriage of the surviving spouse. (Gov.Code, § 75104.4.) In 1961 the surviving spouse of a deceased judge with 10 to 20 years service became entitled to an allowance based on the length of the deceased judge's service, an allowance which would continue until the death or remarriage of the surviving spouse (Gov.Code, § 75091).

Thus, apart from optional settlements under which a retiring judge could apply the actuarial equivalent of his retirement allowance for the benefit of himself and his spouse, the statutes consistently limited the duration of an allowance for the surviving spouse of a retired, disabled, or deceased judge to the death or remarriage of the surviving spouse.

3. In 1968 the legislature authorized an allowance for the surviving spouse of a judge who dies in office before accruing retirement benefits (Gov.Code, § 75093). Such a surviving spouse can elect to receive an allowance of 25 percent of the salary of the deceased judge's office. This legislation did not specifically terminate such an allowance on remarriage. In 1973 the Judges' Retirement Law was further amended to authorize deferred retirement, under which a judge with five or more years of service could retire in advance of retirement age and on reaching retirement age thereafter would receive an allowance based on his length of service (Gov.Code, § 75033.5). This legislation specifically provided that the surviving spouse of such a judge would receive an allowance for life of half the benefits payable to the judge.

To summarize the foregoing history, originally California provided no allowances for surviving spouses of retired, disabled, or deceased judges. In 1959 spousal allowances were established for surviving spouses of retired or disabled judges, which would continue until the death or remarriage of the survivor. In 1968 benefits were authorized for the surviving spouse of a judge dying in office, irrespective of the judge's eligibility for retirement benefits (Gov.Code, § 75093), and in 1973 deferred benefits were authorized for a judge retiring with five or more years of service and for the judge's surviving spouse. (Gov.Code, § 75033.5.) In the latter two instances allowances to surviving spouses would continue for life.

Plaintiffs, who are or were beneficiaries under the earlier judicial retirement legislation, argue that adoption of the later statutes authorizing allowances to surviving spouses for life made invalid and unconstitutional those limitations of the earlier statutes which terminate or terminated their own spousal allowances on remarriage. Plaintiffs rely on two arguments. The limitations are (1) an invalid restraint on marriage, and (2) a denial of equal protection of the laws and of due process of law.

I

Restraint on Marriage.

Plaintiffs argue, and the trial court agreed, that those provisions of the Judges' Retirement Law which terminate allowances to a surviving spouse on remarriage (Gov.Code, §§ 75077, 75091, 75104.4) have a chilling effect on the exercise of the right to marry and therefore amount to an unconstitutional restraint on the free exercise of marriage.

We are not persuaded that any genuine restraint on marriage is present here. A constitutional right to marry undoubtedly exists, but the cases which have upheld that right deal with laws creating direct barriers against marriage. The most recent case Zablocki v. Redhail, (1978) 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618, struck down a statute which prohibited marriage by a person under court order to support a minor, unless that person obtained prior court authorization for the marriage by proving compliance with the support order and the unlikelihood of the minor's becoming a public charge. An earlier case, Loving v. Virginia (1967) 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010, held invalid Virginia's antimiscegenation statute. These cases, however, are a far cry from that at bench, where the only restraint on marriage is the prospective loss of a spousal allowance from a prior marriage. In our view such a loss does not significantly or legally interfere with a decision to enter a new marital relationship. Directly in point is Califano v. Jobst (1977) 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228. Jobst concerned a provision of the Social Security Act which terminated benefits to the child of a deceased wage earner if the child married, but continued benefits if the child married another beneficiary. The Act also contained a similar termination-upon-marriage provision and exception for surviving spouses of deceased wage earners. Under the Act, the court noted, "(m)ost secondary beneficiaries are eligible only if they have not married or remarried" and "marriage or remarriage marks the end of secondary benefits." (434 U.S. at 52, 53 n. 8, 98 S.Ct. at 99 n. 8.) While the court conceded that the statutory provision "may have an impact on a secondary beneficiary's desire to marry, and may make some suitors less welcome than others" (p. 58, 98 S.Ct. p. 101), it nevertheless declared that the provision was not invalid "simply because some persons who might otherwise have married were deterred by the rule or because some who did marry were burdened thereby." (p. 54, 98 S.Ct. p. 99.) The court distinguished the Act's termination-of-benefits-on-marriage provision from those laws which violate the right to marry. The provision was neither "an attempt to interfere with the individual's freedom to make a decision as important as marriage" (p. 54, 98 S.Ct. p. 99) nor an attempt to "foist orthodoxy on the unwilling by banning, or criminally prosecuting, nonconforming marriages," (p. 54, n. 11, 98 S.Ct. p. 100, n. 11), as in Loving v. Virginia, supra 388 U.S. 1, at pp. 9-11, 87 S.Ct. 1817, at pp. 1822-1823. Accordingly, the provision was valid.

In our view the remarriage provision of the Social Security Act upheld in Jobst is comparable to the remarriage provisions of the Judges' Retirement Law. The latter's provisions do not attempt to ban or restrict remarriage, nor do they significantly interfere with the exercise of that right. At bench, both sides sought to use factual data to prove or disprove the thesis that the remarriage rate for judges' widows with terminable allowances was less than the remarriage rate for widows in the general population. We find this statistical data inconclusive and inconsequential, both factually and legally, and we reject is as proof of the chilling effect on marriage of termination of a spousal allowance on remarriage.

To summarize in the language of Zablocki v. Redhail, supra, (1978) 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618, only a statute which interferes "directly and substantially" with the right to marry is invalid. (p. 387, 98 S.Ct. p. 681.) "By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary,...