No. 8 7 - 1 4 4
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
BUTTE COMMUNITY UNION, et al.,
Plaintiffs and Respondents,
-vs-
DAVE LEWIS, Director of the Montana
Department of Social and Rehabilitation
Services,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Thomas Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Russell Cater argued; Dal Srnilie; Michael S. Becker,
Legal Affairs, Dept. of SRS, Helena, Montana
For Respondent:
James H. Goetz argued, Bozeman, Montana
Russell A. LaVigne & Michael Sinclair, Mont. Legal
Services, Helena, Montana
Robert L. Deschamps, 111, County Attorney, Missoula,
Montana
Peggy Verburg, Missoula, Montana
Jim Reynolds, Helena, Montana
Submitted: S e p t e m b e r 3, 1987
Decided: N o v e m b e r 23, 1987
AiO\,f 2 :' ;;" .>
Filed:
*,
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
The members of the 1972 State Constitutional Convention
embraced a bold concept. They provided in Art. XII, $ 3 (3)
that:
(3) The legislature shall provide such economic
assistance and social and rehabilitative services
as may be necessary for those inhabitants who, by
reason of age, infirmities, or misfortune may have
need for the aid of society.
From the viewpoint of hindsight, 15 years later, some
may perceive Art. XII, $ 3 (3) as visionary and idealistic.
The electors of this State, however, adopted the concept by
ratifying the State Constitution on June 6, 1972, through
Referendum No. 68.
Clearly and grammatically (by the use of the disjunctive
"or") the State Constitution imposes upon the legislature a
duty to provide necessary economic assistance to inhabitants
who need societal aid by reason of three disparate conditions
over which they have no control, age, infirmity, or
misfortune.
In 1985, the legislature met, and purporting to comply
with its duty under Art. XII, S 3 (3), promulgated §
53-3-205(3), MCA, which excluded able-bodied persons under
age 35 without dependent minor children from general relief
assistance for basic necessities. The same legislature also
adopted $ 53-3-209 (2), MCA, which declared able-bodied
persons ages 35-49 without dependent minor children
ineligible for general relief assistance for basic
necessities for more than three months of general relief
assistance beginning 60 days after they applied for general
relief assistance.
These enactments of the 1985 legislature were overturned
in the District Court and eventually came to this Court in
Butte Community Union v. Lewis (Mont. 19861, 712 P.2d 1309,
43 St.Rep. 65. There, this Court, applying a middle-tier
standard of review to equal protection guaranties under our
state law, held that denying general assistance relief to
members of the class of able-bodied persons solely on the
basis of attained age did not pass constitutional muster.
The legislature met in a second special session in June,
1986. There the legislature adopted (Ch. 10, Laws of
Montana, 2d Spec. Sess. (June, 1986!), amendments to 5
53-3-205(3), MCA, to the effect that able-bodied persons
without dependent minor children were not eligible for
non-medical general relief assistance "except as provided in
5 53-3-209"; and amended 5 53-3-209 (2), MCA, to provide that
able-bodied persons without dependent minor children were
eligible for no more than two months of nonmedical general
relief assistance within a 12 month period. The legislature
eliminated the 60 day waiting period.
These new provisions of the public assistance laws,
denying general assistance relief to all able-bodied persons
without dependent minor children for more than two months,
were again challenged by Butte Community Union in the
District Court, First Judicial District, Lewis and Clark
County. Ln that court, the district judge, applying the
middle-tier standard of review enunciated in the first Butte
Community Union case, determined again that the new
provisions failed to meet equal protection guaranties under
our State Constitution and was thus unconstitutional. The
district judge enjoined the enforcement of those provisions.
The State through the Department of Social Rehabilitation
Services (SRS) has appealed to this Court. On consideration,
we sustain the District Court and affirm the decision.
There are other statutes to be considered in
determining the validity of the general assistance programs
for able-bodied persons. Able-bodied persons are those who
are not infirm. Section 53-3-109 (I), MCA. Able-bodied
persons are not excluded from assistance for needed medical
services. Section 53-3-205(3), MCA. Able-bodied persons
receiving general public assistance, in counties with
state-assumed welfare services must enroll in a structured
job search and training program provided by the Department of
Labor and Industry. Section 53-3-304(3), MCA; (Ch. 10, Laws
of Montana, 1st Spec. Sess. (March, 1986)).
It is the position of SRS that able-bodied persons
without dependent minor children are simply not misfortunate,
because the legislature has defined them as not eligible to
receive full cash general relief assistance. This contention
springs from legislative findings adopted with the 1986
amendments to 5 53-3-108, MCA, as follows:
(2) The legislature finds that assistance under
the general relief program should - - available
not be
to those persons who have either adequate income or
-
resources of their own or - - able-bodied
who are ...
(3) The legislature, in recognition of the need to
expand the employment opportunities available to
able-bodied persons who do not have dependent minor
children, will provide two months of general relief
so that such able-bodied persons may be eligible
for the job readiness training authorized in
53-3-304 (3), MCA. (Emphasis added. )
Of course, persons who have adequate income or resources
of their own are not entitled to general assistance. They
have no need for the aid of society. They are not
misfortunate. The legislature, by its finding, has
completely eliminated from economic assistance misfortunate
able-bodied persons who may have need for the aid of society.
The finding, therefore, is in flat opposition to Art. XII, 5
3(3) of the Constitution, that all misfortunate persons who
have need for the aid of society shall receive economic
assistance through legislative action. The legislature
cannot escape its constitutional duty by defining out the
persons to whom the constitutional protection attaches. To
allow such a finding to stand is tantamount to allowing the
legislature to amend the Constitution by its own action, a
power denied the legislature under the state Constitution.
See Art. XIV, 1972 Mont. Const.
Art. XII, S 3(3) is not self-executing, and it needs the
affirmative action of the legislature to be given effect. It
is a duty not lightly to be omitted. As we pointed out in
Jones v. Cooney (19281, 81 Mont. 340, 343-344, 263 P. 429,
430:
The care of the state for its dependent classes is
considered by all enlightened people as a measure
of its civilization [citing authority] and
provision for the proper care and treatment at
public expense of the indigent sick and of those
who for other reasons are unable to take care of
themselves is said to be among the unquestioned
objects of public duty [citing authority].
The people of Montana gave recognition to this high
moral obligation when they wrote into the
constitution Section 5 of Article X, which
provides: "The several counties of the state shall
provide as may be prescribed by law for those
inhabitants, who, by reason of age, infirmity or
misfortune may have claims upon the sympathy and
aid of society. " As this constitutional
declaration is not self-executing the measure of
relief which may be furnished necessarily depends
upon statutes enacted to carry out the benevolent
purpose expressed.
Under the 1986 amendments to the public assistance
statutes, eligible able-bodied persons with dependent minor
children may receive nonmedical general assistance relief for
basic necessities without limit (subject to job training
provisions). At the same time, eligible able-bodied persons
without dependent minor children may receive the same
assistance for but two months in any year (subject to the
same job training provisions!. Within the class of eligible
able-bodied persons, therefore, not all are treated equally.
The distinction is based solely on the presence or
nonpresence of dependent minor children, without regard to
whether able-bodied persons without dependent minor children
may, through misfortune, "have need for the aid of society"
for a greater period than two months in any year. On their
face, the 1986 amendments do not meet the duty imposed on the
legislature to provide for the misfortunate under Art. XII, S
3(3) of the Montana Constitution.
When this case was before the District Court, it
determined that the case was controlled by the standard of
review established in Butte Community Union v. Lewis (Mont.
1986), 712 P.2d 1309, 43 St.Rep. 65. The District Court
further determined that in order for it to make a finding
that the 1986 amendments were constitutional, the state must
demonstrate two factors: (1) that the classification of
welfare recipients on the basis of being able-bodied without
dependent minor children was reasonable; and, (2) that the
state's interest in classifying welfare recipients on the
basis of being able-bodied without dependent minor children
was more important than the people's interest in obtaining
welfare benefits. The District Court further determined that
both parts of the test must be met before the amendments
could be declared constitutional. The District Court
.
correctly interpreted Butte Community Union (BCU)
In applying the - test, the District Court turned
BCU
first to whether the denial of benefits to able-bodied
persons without dependent minor children was reasonable. It
concluded that classifying persons based on being able-bodied
without dependent minor children was a broad generalization
which under the BCU test can be interpreted as unreasonable
and thus the state had failed to meet the first part of the
BCU test. It saw no reason, therefore, to look to the second
part of the - test and ordered the issuance of a permanent
BCU
injunction prohibiting the SF.S from implementing the
provisions of the 1986 amendments to the public assistance
statutes.
In its findings supporting its conclusions, the District
Court found that no other programs were offered by the SRS or
the state which would provide the affected individuals with
assistance for shelter, transportation and personal needs;
that 785 recipients of general relief assistance statewide
would have their benefits terminated by January 1, 1987; that
most of these would be in counties with state-assumed general
relief assistance programs; that denying general assistance
to the affected individuals would save the state $1.2 million
in fiscal year 1987; that the position of the state was not
that such able-bodied persons without dependent minor
children were not in need of assistance, but that of all
people served, they were of the lowest priority for general
assistance.
The court determined as a fact that many able-bodiec?
persons without dependent minor children who have previously
been eligible for general assistance have significant
identifiable barriers to employment. These include :
(a) being out of the labor market for one year or more;
(b) lack of skills and/or experience; (c) lack of
transportation; (d) no address or telephone; (e) poor job
hunting skills; (f) a high level of illiteracy; and,
(g) alcoholism or chemical dependency. It determined that
the job readiness program authorized in § 53-3-304 (3), MCA,
would not be effective for many of the recipients in that
they would not be "job ready" within the two month period.
The District Court further determined that because of the
state of Montana's economy not everyone affected by the
termination of benefits would be able to find employment and
that even though some jobs might be available, not all
recipients would have the skills and qualifications required
by those jobs. It further determined that not everyone who
was affected by the termination of benefits would receive
assistance from family, churches or other charitable
organizations to meet minimal living needs.
SRS makes no attack on the sufficiency of the evidence
to sustain the findings of the District Court. Rather, it
argues that the classification between eligible able-bodied
recipients is reasonable because of (1) factual distinctions
between able-bodied and the infirm; (2) job search training
and work program provided to able-bodied persons;
(3) sufficient job openings that exist; (4) extensive
services and benefits in conjunction with support from
friends, relatives and charities; and, (5) factual
distinctions between able-bodied persons with or without
dependent minor children.
Each of the state's contentions is refuted by the
findings of fact made by the District Court. In case after
case, we have iterated the binding force of Rule 52(a),
M.R.Civ.P., that findings of fact in nonjury cases made by
District Courts may not be set aside by us unless clearly
erroneous. In this case, the state does not maintain that
the findings of the District Court are clearly erroneous or
that they are not supported by the evidence. It merely
contends that the District Court could have made different
findings and reached a different conclusion.
The legislature acted in 1986 under a number of general
assumptions that prove to be invalid. First, it found that
"the general relief program should - - available to those
not be
persons ... who are able-bodied." (Emphasis added.)
Section 53-3-108(2), MCA. Inconsistently, it allowed general
relief assistance for basic necessities to able-bodied
persons with dependent minor children. Section 53-3-205(2),
MCA. The District Court found that 785 able-bodied persons
without dependent minor children were eligible as of the date
of hearing for general assistance relief for more than two
months, but were excluded by reason of $ 53-3-209 (2), MCA.
The legislature assumed that allowing able-bodied
persons without dependent minor children to be eligible for
the job readiness training authorized in § 53-3-304 (3), MCA,
would make them employable. The District Court found that
while some of the participants would be "job ready" within
the two-month period, many would not.
The legislature assumed that sufficient job openings
existed to absorb the number of able-bodied persons without
dependent minor children. The District Court found that
because of our economy, employment opportunity did not exist
for all and that though some jobs might be available, not all
recipients would have the skills or qualifications required
for the job openings.
The legislature assumed that able-bodied persons without
dependent minor children could rely on support from friends,
relatives and charities and on other state programs including
food stamps, medical services, and energy assistance. The
District Court found that such additional programs did not
provide affected individuals with assistance for shelter,
transportation or personal needs and that not all could
depend on family, churches or other charitable organizations
to meet minimal living needs.
The District Court therefore concluded as a matter of
law that classifying able-bodied persons without dependent
minor children as having no need for general relief
assistance was a broad generalization which was arbitrary and
unreasonable. The findings of the District Court demonstrate
the unreasonableness of the broad general classification.
The State additionally argues that the action of the
legislature in not excluding infirm persons from general
relief assistance demonstrates the reasonableness of
excluding able-bodied persons. Aside from the obvious fact
that an infirm person is not "able-bodied," S 53-3-109(1),
MCA, the legislature has a separate identifiable duty under
Art. XII, 3 (3) to provide for the infirm needy. It is
sophistry for counsel to claim reasonableness in that the
legislature performed its duty with respect to one class of
needy persons and thereby offset its duty to provide for
another class of needy persons.
A final argument made by SRS is that it is reasonable to
distinguish between able-bodied persons with dependent minor
children, and those without such minor children. Here the
argument runs that children are at risk and have little
resources for their support and protection; that the
protection of neglected and abused children is a primary
mission of the state through another department; that the
presence of children at home can be a barrier to employment
in view of the costs of daycare, transportation and the
possible unavailability of daycare; and that the legislature
and the courts, through enactments or decisions, have
recognized the risks to children and the reasonableness of
distinguishing between them and adults in such programs as
AFDC, provisions on child abuse and neglect and the
likelihood of economic stress when there are more mouths to
feed.
Of course, it is true that able-bodied persons with
dependent minor children face different kinds of problems
from able-bodied persons without minor children. The
difference in problems, however, does not obviate what the
District Court in this case found: there are 785 eligible,
able-bodied persons without minor children in need of the aid
of society for the basic necessities of life. Again, the
state is seeking to establish reasonableness because it has
performed part of its duty under Art. XII, § 3 ( 3 ) . It has
provided for eligible able-bodied persons with dependent
minor children, but not for those without dependent minor
children.
We, therefore, affirm the District Court. In doing so,
we acknowledge the difficulty confronting the legislature in
the two special sessions of 1986 to spread the available
state funds over the needs of the state. The task was not
easy, and sacrifices were required in nearly every
state-funded activity. We know too, that hard times continue
for the state. The legislature, in determining where
sacrifices, are necessary, should regard "welfare benefits
grounded in the constitution itself are deserving of great
protection." Butte Community Union v. Lewis, 712 P.2d at
1314. The State may legitimately limit its expenditures for
public assistance, public education or any other program
even-handedly applied. It may not limit its expenditures by
the expedient of eliminating classes of eligible individuals
from public assistance without regard to their
constitutionally grounded right to society's aid when needed,
through misfortune, for the basic necessities of life. We do
not hereby declare that inhabitants have a constitutional
right to public assistance. We do declare that the
legislature, in performing its duty under Art. XII, § 3 ( 3 ) ,
must not act arbitrarily between classes of entitled persons.
FJe Concur:
Chief Justice
Justices
Mr. Justice L. C. Gulbrandson, specially concurring.
As in Butte Community Union v. Lewis (Mont. 1986), 712
P.2d 1309, 43 St.Rep. 65, I do not concur in the adoption of
the described middle-tier standard of review. The first
prong of that test requires a reasonable, non-arbitrary,
classification of welfare recipients by the legislature. I
agree with the adoption of that requirement as I perceive it
to be an appropriate interpretation of the rational basis
test. It is obvious that some courts in the past deferred to
legislative classifications to the extent that the rational
basis test was sometimes described as "toothless," and that
may be the reason for the adoption, by the majority, of the
middle-tier test. I do not agree with the adoption of the
second prong of the test as stated because of the balancing
decision to be required of this Court in future challenges to
welfare classifications set by the Montana legislature. In
my view, this Court, without particular expertise or
competence, will, of necessity, be operating in the
legislative arena in violation of the separation of powers
doctrine, Article I11 5 1, Constitution of Montana.
Because this case was decided under only the first
prong of the described middle-tier test, and the trial court
determined that the classification was not reasonable, I
/.
concur in the result. /
'
/'
Mr. Chief Justice J. A. Turnage and Mr. Justice R. C.
McDonough join in the foregoing special concurrence of
Justice L. C. Gulbrandson.
Justice