No. 92-376
IN THE SUPREME COURT OF THE STATE OF MONTANA
GARY STRATEMEYER,
Claimant and Respondent,
LINCOLN COUNTY,
Employer,
and
MAC0 WORKERS' COMPENSATION TRUST,
Defendant and Appellant.
APPEAL FROM: The Montana Workers' Compensation Court
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Norrmn H. Grosfield, Utick & ~rosfield,
Helena, Montana (argued)
For Respondent:
Sydney E. McKenna, Patterson, Marsillo, Tornabene,
Schuyler & McKenna, Missoula, Montana (argued)
For Amicus Curiae:
John J. Richardson, Beck Law offices, Bozeman,
Montana, for Montana Trial Lawyers Association;
Charles G. Adams, Helena, Montana, for State
Compensation Mutual Insurance Fund; Robert E.
sheridan, Garlington, Lohn & ~obinson,Missoula,
Montana, for Montana Self-Insurers Association
Submitted: December 16, 1992
A ~ ~ c i d e d :June 23, 1993
Filed:
I
Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from an order of the Worker's Compensation
Court, concluding that subsections (3)(a) and (b) of § 39-71-119,
MCA (1987), violate Article 11, Section 4 of the Montana
Constitution. We reverse.
The sole issue on appeal is whether the Workers' Compensation
Court erred in concluding that subsections (3)(a) and (b) of § 39-
71-119, MCA, violate Article 11, Section 4 of the Montana
constitution, which states . .. l1[n]o person shall be denied the
equal protection of the laws ... 11
Gary Stratemeyer (Stratemeyer) was a deputy sheriff for
Lincoln County from 1982 to 1990. On May 4, 1990, Stratemeyer was
called by the Sheriff's dispatcher to respond to a suicide attempt
near the Libby office. When he arrived at the home, he was led to
a back bedroom where he found a 17 year old girl being held by her
father. She had shot herself in the head but was still alive.
Respondent took the girl from her father's arms and administered
first aid, including cardiopulmonary resuscitation, until the
ambulance arrived.
When the ambulance arrived, the respondent helped the crew
carry her to the ambulance. He then served as an escort for the
ambulance to the hospital where he learned the girl had died. He
was then called away from the hospital to another accident scene.
Thereafter, the respondent was continually plagued by thoughts
of the girl s suicide. A few weeks after the suicide, the
respondent took sick leave because of anxiety over the event. He
2
continued to suffer anxiety problems and was unable to return to
work. Stratemeyer submitted a claim for Workerst Compensation on
May 25, 1990, for a mental stress injury suffered during his
employment as a police officer. The claim was denied on the basis
that he had not suffered a "compensable injury" as defined by
statute. (Statutory law prohibits coverage for a mental (stress)
injury suffered without a physical component.) He then petitioned
for a hearing before the Workers' Compensation Court for coverage
of his medical costs and lost wages.
That court concluded that he did not suffer a "compensable
injuryu within the language of 5 39-71-119, MCA. The Workers'
Compensation Court also determined that this statute violated
respondent's right to equal protection of the law because "claimant
has been denied compensation based on the nature of his disability
without regard to its cause as being work-related." Respondent
contended, and the Workers' Compensation Court concluded, that the
statute at issue was unconstitutional because it violated equal
protection of the law.
There are limitations governing a court's ability to declare
a statute unconstitutional. We take cognizance of the following
cautions :
[I]t is our sacred duty to measure the Act by the
terms of our constitutional limitations, as we interpret
them. "It must be evident to anyone that the power to
declare a legislative enactment void is one which the
judge, conscious of the fallibility of the human
judgment, will shrink from exercising in any case where
he can conscientiously and with due regard to duty and
official oath decline the responsibility. The
legislative and judicial are co-ordinate departments of
the government of equal dignity; each is alike supreme in
the exercise of its proper functions, and cannot
directly or indirectly while acting within the limits of
its authority be subjected to the control or supervision
of the other without an unwarrantable assumption by that
other of power which, by the Constitution, is not
conferred upon it. The Constitution apportions the
powers of governments but it does not make any one of the
three departments subordinate to another when exercising
the trust committed to it. The courts may declare
legislative enactments unconstitutional and void in some
cases, but not because the judicial power is superior in
degree or dignity to the legislative. Being required to
declare what the law is in the cases which come before
them, they must enforce the Constitution as the paramount
law, whenever a legislative enactment comes in conflict
with it.**
State v. Dixon (1923), 66 Mont. 76, 84-85, 213 P. 227, 229.
Additionally:
When a legislative course of action expressed in
statutes or budgetary laws is tested for
constitutionality under the State Constitution, our
review is circumscribed by certain principles. We must
give the state constitutional provision a broad and
liberal construction consistent with the intent of the
people adopting it to serve the needs of a growing state.
The constitutional provision should receive a reasonable
and practical interpretation in accord with common sense.
The constitutionality of a legislative enactment is prima
facie presumed, and every intendment in its favor will be
presumed, unless its unconstitutionality appears beyond
a reasonable doubt. The question of constitutionality is
not whether it is possible to condemn, but whether it is
possible to uphold the legislative action which will not
be declared invalid unless it conflicts with the
constitution, in the judgment of the court, beyond a
reasonable doubt.
Fallon County v. State (1988), 231 Mont. 443, 445-46, 753 P.2d 338,
339-340. (Citations omitted.) Every possible presumption must be
indulged in in favor of the constitutionality of the Act. See
State v. Safeway Stores, Inc. (1938), 106 Mont. 182, 199, 76 P.2d
With these principles in mind, we turn to the standard of
review for Workers' Compensation cases challenging a statute on the
basis of equal protection. We have enunciated the following:
[Tlhe right to receive Workerst Compensation benefits is
not a fundamental right which would trigger a strict
scrutiny analysis of equal protection. Nor does this
statute infringe upon the rights of a suspect class.
When a right determined to be less than fundamental
is infringed upon by classification, the test applied by
this Court is the rational relationship test. That is,
does a legitimate governmental objective bear some
identifiable rational relationship to a discriminatory
classification.
Cottrill v. Cottrill Sodding Service (1987), 229 Mont. 40, 42-43,
744 P. 2d 895, 897 (Citations omitted) . In other words, is the
classification (means) usedto accomplish a legitimate governmental
objective rational? The statute at issue here, because it affects
no fundamental right or suspect class, must be analyzed under the
rational basis test.
Section 39-71-119, MCA, excludes from the definition of injury
work-related injuries that do not have a physical component.
Section 39-71-119, MCA, reads as follows:
(1) "Injury ...
means:
(a) internal or external physical harm to the body.
...
(3) ttInjurytt ttinjured"
or does not mean a physical or
mental condition arising from:
(a) emotional or mental stress; or
(b) a non physical stimulus or activity.
The Workerst Compensation Court concluded that the
respondent's injury was not covered under 5 39-71-119, MCA, because
it was a mental injury. The Workers' Compensation Court further
concluded that the statute was unconstitutional because it
improperly excluded people with mental injuries with no physical
component from compensation under the Workerst Compensation Act in
5
violation of equal protection of the law. In applying the rational
basis test to the exclusion for above conditions without a physical
component, the Workerst Compensation Court stated that It[i]f a
rational basis exists forthe classification created by section 39-
71-119, MCA (1987), the legislature must provide it. The Court may
not speculate to find i.!
t' The court concluded that the
classification did not meet the rational basis test because it
could glean no purpose for the legislation from the statute itself
or its legislative history.
However, appellant argues that the Workers' Compensation Court
should have sought "any combination of purposes that the
Legislature might have been attempting to achieveu in enacting 5
39-71-119, MCA. The Ninth Circuit has stated: It[i]n our review of
governmental purposes,. ..we need not rely only upon those purposes
the legislature, litigants, or district court have espoused, but
may also consider any other rational purposes possibly motivating
enactment of the challenged statute." Mountain Water v. Mont.
Dept. of Public Serv. Reg. (9th Cir. 1990), 919 F.2d 593, 597. See
also; Kadrmas v. Dickinson Public Schools (1988), 487 U.S. 450,
462-463, 108 S.Ct. 2481, 2490, 101 L.Ed.2d 399; Cottrill v.
Cottrill Sodding Service (1987), 229 Mont. 40, 43, 744 P.2d 895,
897; ([allthough this Court could speculate as to why the
legislature elected to treat these select individuals differently
under the Workerst Compensation laws....) (Emphasis added.) The
purpose of the legislation does not have to appear on the face of
the legislation or in the legislative history, but may be any
possible purpose of which the court can conceive. In this case,
the Workers' Compensation Court expected the legislature to provide
the purpose. This, however, is not required of legislation being
examined relative to equal protection.
Appellant contends that the Workers' Compensation Court
ignoredthe rule that legislation is presumed to be constitutional.
Further, it did not require the respondent to meet his burden of
proving the statute was unconstitutional. Appellant claims the
respondent provided no testimony, no evidence nor any case law to
argue that the statute was invalid. Respondent merely argued that
the distinction between physical and mental injury claims was
nonsensical and unfair.
This Court concludes that the Workersv Compensation Court did
not properly apply these rules for analyzing legislation under an
equal protection challenge. The Workers1 Compensation Court did
not presume the statute to be constitutional and look to any
possible legitimate purpose for the legislation. However,
resolving doubts in favor of the legislation in minimum level
scrutiny cases is the proper approach because:
[i]n the utilities, tax, and economic regulation
cases, there are good reasons for judicial self-restraint
if not judicial deference to legislative judgment. The
legislature after all has the affirmative responsibility.
The courts have only the power to destroy, not to
reconstruct. When these are added to the complexity of
economic regulation, the uncertainty, the liability to
error, the bewildering conflict of the experts, and the
number of times the judges have been overruled by events-
-self-limitation can be seen to be the path to
institutional prestige and stability.
The Court is aware, too, of its own remoteness and
lack of familiarity with local problems. Classification
is dependent on legislative purpose. Legislative purpose
is dependent on the peculiar needs and specific
difficulties of the community. The needs and
difficulties of the community are constituted out of fact
and opinion beyond the easy ken of the Court.
Joseph Tussman and Jacobus tenBroek, The Eaual Protection of the
Laws, 37 Cal. L. Rev. 341, 373 (1949). The legislature is simply
in a better position to develop the direction of economic
regulation, social and health issues.
Neither did the Workersv Compensation Court place a burden
upon the respondent to bring evidence forward to show the statute
was unconstitutional. In fact, the Workers' Compensation Court
looked to the appellant for evidence that the statute was
constitutional. "There is not a scintilla of fact, statistical or
otherwise to demonstrate any actual cost or cost savings associated
with the broad brush of exclusion brought by this legislation."
The "heavy burdenvv,
however, rests with the party challenging the
statute. Kadrmas at 463, 108 S.Ct. at 2490.
Even a cursory glance at the legislative history and statute
indicates a concern over the high cost of the Workers' Compensation
program to the State of Montana and the employers involved in the
program. It is evident that this was the primary purpose for the
legislative changes in the Workers' Compensation Act. vv[P]romoting
the financial interests of businesses in the State or potentially
in the State to improve economic conditions in Montana constitutes
a legitimate state goal." Meech v. Hillhaven West, Inc. (1989),
238 Mont. 21, 48, 776 P.2d 488, 504. (Citation omitted.) A
purpose would be to provide for injured workers at a reasonable
cost.
8
In addition, there are problems relative to mental stress
claims, and they have caused a reluctance in some states to
compensate for these claims. As we stated in Erhart v. Great
Western Sugar Company (1976), 169 Mont. 375, 379, 546 P.2d 1055,
Workmen's compensation cases normally deal with physical
injury resulting from an accident, as the term is used in
everyday language. When a shipping crate falls on a
worker breaking a bone or two, the causation and the
tangible happening are easily identifiable. In the
present case we are dealing with a nervous disability,
which may or may not be causally related to the
employment situation.
The exclusion of mental claims rationally relates to the possible
goal of reducing costs and having a viable program for the State
and the enrolled employers and employees in the workers'
compensation field.
Disallowing mental, or stress claims occurring without a
physical component, while quite unfortunate for some, does not
violate equal protection of the law.
The problem of legislative classification is a perennial
one, admitting of no doctrinaire definition. Evils in
the same field may be of different dimensions and
proportions, requiring different remedies. Or so the
legislature may think. Or the reform may take one step
at a time, addressing itself to the phase of the problem
which seems most acute to the legislative mind. The
legislature may select one phase of one field and apply
a remedy there, neglecting the others.
Eastman v. Atlantic Richfield Co. (1989), 237 Mont. 332, 339, 777
P.2d 862, 866, citing Williamson v. Lee Optical Co. (1955), 348
U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. (Citations
omitted.) As we have stated in State v. Safewav Stores, Inc., 76
P.2d at 87, to wit:
On this phase of the question we again quote with
approval from the West Coast Hotel Case, supra, wherein
the court said: "This Court has frequently held that the
legislative authority, acting within its proper field, is
not bound to extend its regulation to all cases which it
might possibly reach. The legislature 'is free to
recognize degrees of harm and it may confine its
restrictions to those classes of cases where the need is
deemed to be clearest. ' If 'the law presumably hits the
evil where it is most felt, it is not to be overthrown
because there are other instances to which it might have
been applied.' There is no 'doctrinaire requirement'
that the legislation should be couched in all embracing
terms. "
The concern over problems of administration of the Workers'
Compensation program which prompted changes in the 1987 Workers'
Compensation legislation might reasonably have called for a
cautious approach. As stated in Joseph Tussman and Jacobus
tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341,
349 (1949):
[tlhe 'piecemeal' approach to a general problem,
permitted by under-inclusive classifications, appears
justified when it is considered that legislative dealing
with such problems is usually an experimental matter. It
is impossible to tell how successful a particular
approach may be, what dislocations might occur, what
evasions might develop, what new evils might be generated
in the attempt to treat the old. Administrative
expedients must be forged and tested. Legislators,
recognizing these factors, may wish to proceed
cautiously, and courts must allow them to do so.
Here, it is fairly obvious that the legislature was attempting to
improve the financial viability of the system. This, they can do
by rational means without violating the equal protection clause.
Eastman, 777 P.2d at 866; Williamson, 348 U.S. at 489, 75 S.Ct. at
465.
Applyingthe general rules for analyzingthe constitutionality
of a statute under the rational basis test, the C o u r t concludes
that the classification at hand rationally relates to a legitimate
governmental objective of controlling the costs of the program and
providing benefits.
Reversed.
Justice Terry N. Trieweiler dissenting.
The language in Article 11, Section 4, of Montana's
Constitution is simple, plain, and clear. It provides that It[t]he
dignity of the human being is inviolable. No person shall be
denied the equal protection of the laws." Yet, the purpose served
by that language in any society based on equality is absolutely
vital. It recognizes that majoritarian rule can at times be harsh,
intolerant, and unfair. It recognizes that at times a basic
framework of principle is necessaryto prevent those with political
influence from oppressing those without political influence.
In recent years in Montana, no group has had less political
influence and been the subject of more political demagoguery than
those unfortunate people injured and disabled during the course of
their employment. No group has had greater influence than those
employers, led by the State's newspaper publishers, who consider
injured workers an unnecessary business expense and an obstruction
to the ever elusive "better business climate" that they seek for
the State of Montana.
Sadly, today's decision by the majority sounds the death knell
for this critical constitutional protection which powerless people
have traditionally relied on courts to enforce.
Based on the majority's decision in this case, discriminatory
laws in Montana need have no rational basis in fact so long as a
majority of the members of this Court can contrive some speculative
basis to support such discrimination.
To understand the human impact of today's decision and of the
anti-claimant hysteria that is sweeping this State, it is necessary
to know more about the circumstances of Gary Stratemeyer than is
evident from the majority opinion.
Stratemeyer is a 41-year-old former deputy sheriff in ~incoln
County. He has a wife and a son. In late 1988 or early 1989, he
was promoted to the rank of sergeant.
On May 4, 1990, Officer Stratemeyer received a call from the
dispatcher who advised him of a reported suicide. Although he had
been in law enforcement for eight years, he had never previously
responded to a suicide attempt. However, he responded immediately.
On his way to the location where the suicide was reported,
Stratemeyer learned that the young girl who had attempted to take
her life was still alive, When he arrived at the home where the
attempt had occurred, he entered the bedroom where she was located
and observed that "there was blood everywhere." Stratemeyer found
the victim, a 17-year-old girl, being held by her father who was
rocking her back and forth and telling her to keep breathing.
Observing that the father was unable to help her, Stratemeyer
forcibly took the girl from her father's arms and began
administering cardiopulmonary resuscitation. He continued doing
so, holding the dying young woman in his arms, until the ambulance
arrived. When the ambulance arrived, Stratemeyer carried the girl
to a gurney so that she could be transported to the hospital.
After escorting the ambulance to the hospital, Stratemeyer
returned to work and was dispatched to an accident. However,
before the shift ended, he was informed that the girl had died.
That night, and for several days and nights thereafter,
Stratemeyer was plagued by the memory of the dying girl and her
father. He second guessed the wisdom of taking the girl from her
father's arms during the last moments of her life. He continued to
report to work, but began to experience an inability to concentrate
and mental disorientation. He became increasingly distraught and
developed emotional problems that interfered with his work and his
personal life. He could not sleep, was continuously exhausted, and
felt the need to escape the town in which he lived and worked.
Finally, on May 14, 1990, he was taken to the hospital by
ambulance in a tearful s t a t e where the psychologist who examined
him observed that lt[h]e was obsessing about t h e suicide of the
young girl, the flashback of her face superimposed on that of his
songs,he feared he was going crazy .... II
Stratemeyer was given a tranquilizer and diagnased with post
traumatic stress disorder.
Prior to the traumatic experience that he had during the
course of his employment on May 4, 1990, Stratemeyer was known as
an outstanding member of the Lincoln County Sheriff's Department.
He was self-sufficient and conscientious. He was capable of
supporting himself and his family. He is now markedly
dysfunctional, unable to return to work, and unable to function
normally in his personal life. His physical symptoms include
problems with his stomach, diarrhea, and periodic vomiting. He
experiences periodic tingling and numbness in his arms.
is employer does not dispute the nature of his mental injury
nor the extent of his disability. Nor is there any doubt that his
injury resulted from an unexpected traumatic incident identifiable
by time and place of occurrence, caused by a specific event on a
single day and identifiable by the body part affected. The only
reason that he is denied compensation for his disability is the
fact that his injury is to his mind, rather than to some other part
of his body. Had Straterneyer injured his back while carrying this
17-year-old girl to the ambulance, the consequences to him and his
family may have been much less significant. However, Montana's
workers1 compensation laws would have provided him f u l l medical
coverage for his injuries and disability benefits so long as his
earning capacity was affected. This type of legislative injustice
is exactly what the equal protection clause was intended to
prevent. Yet, because of the majority opinion, .future Gary
Stratemeyers will have no constitutional protection in Montana from
similar discriminatory treatment by legislators anxious to please
influential constituents.
The majority opinion is t h e b e s t example yet for the b e l i e f by
many constitutional scholars that the "rational basisu test is no
test at all. Based on the majority opinion in this case, it can
clearly be said that the determination of which standard of review
applies determines the outcome of any equal protection analysis
under Montana constitutional law. Under the majority's *rational
basis" standard of review, the Legislature need offer no reason for
its discriminatory classifications. The beneficiary of the
discrimination need offer no evidence in District Court that the
statutory distinction is rationally related to a legitimate
government objective, and the District Court need have no factual
or evidentiary basis for upholding discriminatory legislation.
According to the majority opinion, the only limit on the
Legislaturefsauthority to draw arbitrary classifications among its
citizens is the creative ability of the majority of the justices on
this Court. If the majority can imagine some speculative but
unsubstantiated basis for discriminating among Montana's citizens,
then it is okay for the Legislature to do so. Under this standard,
the notion of eqgal protection in our Constitution is truly
illusory.
The major problem with the majority's reasoning is that it
proceeds from the faulty assumption that it is limi.ted to a
two-tiered analysis of equal protection cases. Limiting the
Court's scope of review to a two-tiered analysis has been
discredited long ago in both federal and state case law, and for
good reason.
As pointed out by Justice Marshall in his dissent in
Massachusetts Board ofRetirement v. Murgia ( 1 9 7 6 ) ~427 U . S . 307, 318, 96
S. Ct. 2562, 2569, 49 L. Ed. 2d 520, 527-28 (Marshall, J.
dissenting
Although there are signs that its grasp on the law
is weakening, the rigid two-tier model still holds sway
as the Court s articulated description of the equal.
protection test. Again, I must object to its
perpetuation. The model's two fixed modes of analysis,
strict scrutiny and mere rationality, simply do not
describe the inquiry the Court has undertaken--or should
undertake--in equal protection cases. Rather, the
inquiry has been much more sophisticated and the Court
should admit as much. It has focused upon the character
of the classification in question, the relative
importance to individuals in the class discriminated
against of the governmental benefits that they do not
receive, and the state interests asserted in support of
the classification.
Although the two-tier model employed by the majority offers a
simple mechanical approach to equal protection analysis, Marshall
very clearly explained the inadequacy of such an approach for
enforcing this important constitutional right. He pointed out
that :
If a statute invades a "fundamental" right or
discriminates against a "suspect" class, it is subject to
strict scrutiny. If a statute is subject to strict
scrutiny, the statute always, or nearly always, see
Korematsu v United States, 323 U.S. 214 (1944), is struck down.
.
Quite obviously, the only critical decision is whether
strict scrutiny should be invoked at all. ...
But however understandable the Court's hesitancy to
invoke strict scrutiny, all remaining legislation should
not drop into the bottom tier, and be measured by the
mere rationality test. For that test, too, when applied
as articulated, leaves little doubt about the outcome;
the challenged legislation is always upheld. It cannot
be gainsaid that there remain rights, not now classified
as "fundamental, that remain vital to the flourishing of
a free society, and classes, not now classified as
lEsuspect,ll that are unfairly burdened by invidious
discrimination unrelated to the individual worth of their
members. Whatever we call these rights and classes, we
simply cannot forego all judicial protection against
discriminatory legislation bearing upon them, but forthe
rare instances when the legislative choice can be termed
"wholly irrelevant" to the legislative goal. McGowan v .
Maryland, 366 U . S . 420, 425 (1961). [Citations omitted.]
Murgia, 427 U . S . at 319-20.
It is no wonder that in The Supreme Court 1971 Term--Foreword:In Search
of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection 86 Harv.
L. Rev. 1, 8 (1972), Professor Gerald Gunther observed that the
Warren Court applied either "scrutiny that was 'strictr in theory
and fatal in fact," or "minimal scrutiny in theory and virtually
none in fact." The minimal scrutiny applied by the majority in
this case was in fact no scrutiny.
Perhaps in response to the legitimate concerns articulated so
clearly by Justice Marshall, the U.S. Supreme Court recognized a
middle tier of analysis in Plyler v. Doe (1982), 457 U.S. 202, 102
S. Ct. 2382, 72 L. Ed. 2d 786. In that case, the State of Texas
denied the children of illegal aliens free public education. The
question presented to the Supreme Court was whether that denial was
consistent with the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. In concluding that
the Equal Protection Clause was violated, the majority of the Court
recognized that undocumented aliens are not a suspect class and
that education is not a fundamental right. Therefore, the
discriminatory classification reviewed in that case was not subject
to strict scrutiny. However, the Court also recognized that
because of the importance of education in the lives of children,
and because of the significant social costs when selected groups
are denied an education, an intermediate level of scrutiny would be
applied. As part of that intermediate level of scrutiny, the Court
held that the burden would be on the State of Texas to prove that
the discriminatory classification furthered some substantial goal
of the State. Finding no evidence in the record of such a
substantial interest, the Court held that:
If the state is to deny a discrete group of innocent
children the free public education that it offers to
other children residing within its borders, that denial
must be justified by a showing that it furthers some
substantial state interest. No such showing was made
here. Accordingly, the judgment of the Court of Appeals
in each of these cases is Affirmed.
Plyler, 457 U.S. at 230.
In analyzing the circumstances which will give rise to the
heightened level of scrutiny applied by the Supreme Court in the
Plyler decision, Lawrence Tribe offers the following explanation:
Broadly speaking, there are two circumstances that
trigger heightened scrutiny. The first involves
infringement of "important," although not necessarily
"fundamental," rights or interests. The extent to which
the Court's scrutiny is heightened depends both on the
nature of the interest and the degree to which it is
infringed. Thus, in Pbkr v. Doe, the Court adopted a
requirement that the state's goal be "substantial1'when
faced with a classification which served to deprive
illegal alien children of any education, an interest
which the Court explicitly held to be "important1' in
"maintaining our basic institutions." Significant in the
Court's decision to heighten scrutiny was the risk that
such deprivation would serve to "create and perpetuate
... a subclass of illiterates within our boundaries."
Likewise, in Hampton v Mow Sun Wong, infringement of
.
the interest of aliens in employment in the federal
competitive civil service was struck down specifically
because of how broadly the "liberty" of aliens is
restricted by their exclusion from such a large part of
the economy. ...
A second broad circumstance in which intermediate
review has been triggered involves government's use of
sensitive, although not necessarily suspect, criteria of
classification.
Lawrence Tribe, American Constitutional Law, 5 16-33 (2d Ed. 1988).
Similarly, our Court has recognized a middle tier of analysis
where important rights are involved, even though those rights are
not considered fundamental. In Butte Community Union v. Lewis (1986), 219
Mont. 426, 430, 712 P.2d 1309, 1311, this Court was asked to decide
whether legislation which linked eligibility for welfare benefits
to a person's age violated the Equal Protection Clause found in
Article 11, Section 4, of the Montana Constitution. We noted that:
Equal protection analysis traditionally centers on
a two-tier system of review. If a fundamental right is
infringed or a suspect classification established, the
government has to show a ~lcompelling
state interest" for
its action. If the right is other than fundamental, or
the classification not suspect, the government has only
to show that the infringement or classification is
rationally related to a governmental objective which is
not prohibited by the Constitution.
We held that to be a fundamental right under Montana's
Constitution, the right must be found in Montana's Declaration of
Rights or be a right "without which other constitutionally
guaranteed rights would have little meaning." Lewis, 712 P.2d at
1311. We held that although mentioned in the Constitution, the
right to welfare was not a fundamental right. However, since it
was an important enough right to be mentioned elsewhere in the
Constitution, we held that its abridgement required something more
than a rational relationship to a governmental objective. We
stated that:
A need exists to develop a meaningful middle-tier
analysis. Equal protection of the law is an essential
underpinning of this free society. The old rational
basis test allows government to discriminate among
classes of people for the most whimsical reasons.
Welfare benefits grounded in the Constitution itself are
deserving of great protection.
.
. . Where constitutionally significant interests
are implicated by governmental classification, arbitrary
lines should be condemned. Further, there should be
balancing of the rights infringed and the governmental
interest to be served by such infringement.
For these reasons, we adopted the following standard of review
for those interests which we deemed significant enough to warrant
a middle tier of analysis:
We hold that a finding that HB 843 is constitutional
requires the State to demonstrate two factors: (1) that
its classification of welfare recipients on the basis of
age is reasonable; and (2) that its interest in
classifying welfare recipients on the basis of age is
more important than the people's interest in obtaining
welfare benefits.
Lewk, 712 p.2d at 1314.
Based upon that test, we held in language relevant to the
issue raised in this case that:
[TIhe State's objective in enacting HB 843--saving
money--must be balanced against the interest of
misfortunate people under the age of 50 in receiving
financial assistance from the State. The trial record
does not show the State to be in such a financially
unsound position that the welfare benefit, granted
constitutionally, can be abrogated.
Lewk, 712 P.2d at 1314.
In State ex rel. Bartmess v. Board of Tncstees of School Dktrict No. I ( 1986) , 223
Mont. 269, 275, 726 P.2d 801, 804-05, we reaffirmed our commitment
to a middle tier of scrutiny and held that a high school student's
right to participate in extra-curricular activities was an interest
of sufficient magnitude that its abridgement would warrant
middle-tier scrutiny, rather than simply speculation about a
rational basis. We stated that:
We therefore hold that the middle-tier constitutional
analysis is to be applied in determining whether the 2.0
rule violates students' right to participate in existing
extracurricular activities. We further hold that this
right is not a fundamental right under the Montana
Constitution; but that such right is clearly subject to
constitutional protection andthata middle-tier analysis
is to be applied for constitutional equal protection
purposes.
Based on our previous decisions, the fact that there is no
fundamental right to those disability benefits provided for in the
Workers1 Compensation Act should not be the end of our equal
protection analysis. The interest of an injured worker in a
disability benefit with which to sustain himself and his family is
of sufficient magnitude that the denial of those benefits based on
an arbitrary classification deserves a higher level of scrutiny
than is provided for under the majority's toothless "rational
basis" test.
The benefits provided for under the Workers' Compensation Act
will, in many cases, be the difference between a family's
subsistence and its financial ruin. The ability to provide for a
family's housing, transportation, food, and clothing may depend on
an injured worker's entitlement to disability benefits. The
eligibility for health care expenses alone may be the difference
between a family's survival and destruction.
The public policy consideration for workers' compensation
benefits is clearly stated in 5 39-71-105(1), MCA, which provides
that:
It is an objective of the Montana workers' compensation
system to provide, without regard to fault, wage
supplement and medical benefits to a worker suffering
from a work-related injury or disease.
The vital importance of a basic disability benefit for injured
workers in Montana is so clearly evident as a matter of public
policy that all but a few exempt employers are required by law to
provide coverage under the Workers' Compensation Act for their
employees. Section 39-71-401, MCA. The failure to provide
coverage is a felony punishable by ten years in prison and a
$50,000 fine. Section 45-7-501, MCA. This requirement is
considered so significant to the social and economic well-being of
our citizens that employers who fail to carry workers' compensation
insurance can be ordered to completely cease operation of their
business until they elect to be bound by a compensation plan.
Section 39-71-507, MCA. Any employer who fails to comply with an
order to cease operations is guilty of a misdemeanor.
Certainly the interest of an injured and disabled worker in
his or her disability benefits is as significant as an alien
child's interest in education, the right of other Montana citizens
to welfare benefits, and the right of school children to
participate in extra-curricular activities. To argue otherwise is
to ignore the despair and futility experienced by any family whose
primary wage earner has lost the ability to provide his or her
family with financial support. To hold otherwise is to ignore the
reality that unless disabled workers are compensated for their
disability by the industry in whose service they were damaged, the
obligation to support these workers and their families falls upon
the taxpayers in general w h o have had no direct benefit from the
worker's services, and who have a much less compelling obligation
to contribute to that unfortunate family's subsistence.
Under the heightened middle-tier scrutiny that I would apply
to the Legislature's arbitrary denial of disability benefits to
Gary Stratemeyer, the decision of the Workerst Compensation Court
would necessarily be affirmed. Under that level of scrutiny, the
burden would be on the State of Montana to show that this
discriminatory classification is reasonable and that the State
interest served is more important than Gary Stratemeyer's interests
in these basic disability benefits. There is no such evidence in
the record before this Court.
No purpose fox this discriminatory legislation was offered by
the Legislature. No purpose was demonstrated by Stratemeyer's
employer in the trial court, The Workersa Compensation Judge was
left to speculate without any factual or evidentiary basis to
justify treating injuries to the mind differently from injuries to
the back or leg.
Since the trial judge found no justification for this
discriminatory treatment, the majority has manufactured justifica-
tions. The majority speculates that excluding injuries to the mind
from coverage under the Workersa Compensation Act might be cost
effective. The same could be said for excluding injuries to the
left leg, as opposed to the right leg, or excluding injuries to the
neck. Presumably, if the Legislature chooses to do so, the
majority would have no difficulty finding a rational economic basis
for its decision.
The majority's effort to rationalize discriminatory treatment
of the claimant is speculative at best. We have no evidence in
this record of the frequency of claims for stress prior to the 1987
amendment to the Workers' Compensation Act, nor do we have any
evidence of the overall impact that such claims had or would have
on the cost of providing workers' compensation coverage to the
average employer in Montana. What we do know is that the impact of
such an injury on this claimant has been devastating and that his
family's need for disability benefits is desperate.
What we also know from the public information that has been
disseminated is that since allegedly "cost saving measures" like
this one were enacted in 1987, the unfunded liability of the State
Compensation Insurance Fund has quadrupled and rates for workers'
compensation coverage for most employers in Montana have increased
by 100 percent.' There is good reason why the majority has found
it necessary to substitute its own speculation for any factual
record in this case.
The majority also surmises that a rational basis for excluding
mental injuries from coverage under the Workers' Compensation Act
'~hrisSykes, A Heavy Toll: What Workers 1 Cornp Costs and How Montana
Rates, GREAT FALLS TRIBUNE. Feb. 14, 1993, at 4A.
25
may be the fact that mental injuries are more difficult to prove
than physical injuries. However, this is a poor case in which to
assert that argument. The claimant's injury in this case and the
extent of his total disability is uncontested by his employer or
its insurer. Neither was there any basis in the legislative
history for 5 39-71-119, MCA, to conclude that mental injuries were
excluded because of the difficulty proving them. The notion that
mental injuries are difficult to prove and document is a carry-over
from the dark ages. In the modern practice of psychiatry and
psychology, there are many objective tests for the documentation
and measurement of mental disease or defect. Conversely, in spite
of many advances in medicine, there are no objective means of
documenting or measuring many types of physical injuries, including
injuries to muscles, ligaments, tendons, and nearly every other
soft tissue found in the human body.
Any conclusion that difficulties with proof are a justifica-
tion for excluding mental injuries from coverage under the Workers'
Compensation Act finds support only in the editorial pages of this
State's daily newspapers which, for the past year, have bullied and
threatened this State's courts over the issue presented in this
case.* ~ h e s e uninformed opinions are certainly no basis for
'~ditorial, Stress Could Break Workers1 Comp Bank, GREAT FALLS
TRIBUNE, May 19, 1992, at 4A.
Editorial, Court Cases Add to Work-C0mp Woes, INDEPENDENT RECORD,
May 24, 1992, at 5C.
Editorial, They ore Stressed Out in California, INDEPENDENT RECORD,
Jan. 31, 1993, at 5C.
resolving a constitutional issue of the magnitude that this case
presents.
The majority opinion is based on an inadequate and faulty
analytical approach to the Equal Protection Clause of the Montana
Constitution. It employs an approach which for all practical
purposes eliminates the protections provided for in Article 11,
Section 4, of the Montana Constitution, by concluding that
virtually any reason will justify the discriminatory treatment of
Montana's citizens under Montana's laws. For these reasons, I
dissent from the opinion of the majority. I would affirm the
Workers' Compensation Court.
Editorial, Letter to Marc Racicot and Montana State Legislature From Tribune
Editorial Board, GREAT FALLS TRIBUNE, Feb. 16, 1993, at 6A.
Editorial, Ten Steps Needed to Cure Workersl Comp, GREAT FALLS
TRIBUNE, Feb. 17, 1993, at 6A.
Justice William E. Hunt, Sr., dissenting.
I dissent. Like Justice Trieweiler, I can find no evidence to
support the erroneous conclusion of the majority opinion. If
giving benefits to a dedicated police officer, injured in the
performance of his duty while trying to save the life of a young
girl, requires more than claimant has provided here, we are indeed
in woeful economic straits.
I would affirm the Workers' Compensation Court.
June 23, 1993
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Norman H. Grosfield
Utick & Grosfield
P.O. Box 512
Helena, MT 59624-0512
Sydney E. McKenna
Patterson, Marsillo, Tornabene, Schuyler & McKenna
103 So. 5th East
Missoula, MT 59801
Charles G. Adams, Legal Counsel
State Comp. Mutual Ins. Fund
P.O. Box 4759
Helena, MT 59604
Robert E. Sheridan
Garlington, Lohn & Robinson
P.O. Box 7909
Missoula, MT 59807-7909
John J. Richarson, Esq.
BECK LAW OFFICES
Aspen Professional Center
1700 West Koch, Suite 2
Bozeman, MT 59715
ED SMITH
CLERK O F THE SUPREME COURT