96-103
No. 96-103
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
DARWIN ZEMPEL,
Petitioner and Appellant,
v.
UNINSURED EMPLOYERS' FUND,
Respondent and Insurer.
APPEAL FROM: Workers' Compensation Court, State of Montana,
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas C. Bulman; Bulman Law Associates,
Missoula, Montana
For Respondent:
Mark Cadwallader, Department of Labor & Industry, Legal
Services Division, Helena, Montana
Submitted on Briefs: July 11, 1996
Decided: May 15, 1997
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
Darwin Zempel (Zempel) appeals from the judgment of the Workers'
Compensation Court dismissing his petition for a declaratory judgment. We affirm.
We restate the issues on appeal as follows:
1. Did the Workers' Compensation Court err in concluding that 39-71-501,
MCA (1991), as applied, does not deny Zempel equal protection of the laws?
2. Did the Workers' Compensation Court err in concluding that 39-71-501,
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MCA (1991), as applied, does not deny Zempel access to the courts?
FACTUAL AND PROCEDURAL BACKGROUND
The facts in this case are undisputed. In early December of 1991, Zempel was
living and working on the Flathead Reservation in Lake County, Montana. He injured
his eye while employed by Rodney Schall (Schall), an enrolled member of the
Confederated Salish and Kootenai Tribes (Confederated Tribes) of the Flathead
Reservation. Zempel is not a member of the Confederated Tribes.
At the time of Zempel's injury, Schall was conducting a logging operation on the
Flathead Reservation pursuant to a contract with Flathead Post and Pole Yard, Inc.
(Flathead Post and Pole), a tribally-owned business. Schall did not have workers'
compensation insurance at the time of Zempel's injury. The Confederated Tribes carried
workers' compensation insurance, obtained through the State Compensation Mutual
Insurance Fund (State Fund), which covered tribal members employed by Flathead Post
and Pole.
Following his injury, Zempel filed two petitions in the Workers' Compensation
Court seeking workers' compensation benefits from the State Fund. Those petitions were
dismissed without prejudice after the parties agreed to proceed in the Confederated
Tribes' tribal court (Tribal Court).
In accordance with the parties' agreement, the State Fund, together with Flathead
Post and Pole, filed a declaratory judgment action in the Tribal Court, naming Schall and
other loggers as respondents. The State Fund and Flathead Post and Pole requested the
Tribal Court to determine whether Schall and the other loggers' contracts with Flathead
Post and Pole required them to carry workers' compensation insurance. The petition also
requested the Tribal Court to determine whether the Workers' Compensation Act (the
Act) is applicable to a business wholly owned by an enrolled tribal member (Indian
business) and operated exclusively within the exterior boundaries of the Flathead
Reservation. Zempel intervened in the action.
The Tribal Court concluded that Schall's contract with Flathead Post and Pole did
not require him to carry workers' compensation insurance. It further concluded that the
Act does not apply to an Indian business conducted exclusively within the exterior
boundaries of the Flathead Reservation.
Zempel then sought benefits for his injury from the Uninsured Employers' Fund
(UEF), a statutory fund which is part of the Act and the general purpose of which is to
pay an injured employee of an "uninsured employer" the benefits the employee would
have received if the employer had been properly enrolled under the Act. The UEF
denied Zempel's claim for benefits on the basis that Schall was not an "uninsured
employer" as defined in 39-71-501, MCA (1991), because he was not--and could not
be--required to carry workers' compensation insurance under the Act.
Zempel subsequently petitioned the Workers' Compensation Court for a
declaratory judgment, naming the UEF as the respondent. Zempel and the UEF agreed
that Schall could not be required to carry workers' compensation insurance and,
therefore, that he was not an "uninsured employer" as defined in 39-71-501, MCA
(1991). By stipulation, they limited the issue before the Workers' Compensation Court
to whether 39-71-501, MCA (1991), as applied, denies Zempel equal protection of the
laws or access to the courts in violation of the Montana Constitution.
In accordance with well-established case law requiring courts to avoid
constitutional questions whenever possible, the Workers' Compensation Court made an
independent determination that the Act does not apply to a business wholly owned by
tribal members and operating exclusively on the Flathead Reservation. As a result, the
court concluded that Schall was not required to provide workers' compensation insurance
for his employees; that, for the same reason, Schall was not an uninsured employer
within the meaning of 39-71-501, MCA (1991); and, therefore, that the UEF is not
statutorily obligated to pay benefits for Zempel's work-related injury. Turning to the
constitutional questions of whether 39-71-501, MCA (1991), as applied, denied Zempel
equal protection of the laws or access to the courts under the Montana Constitution, the
Workers' Compensation Court concluded that it did not. Zempel appeals the court's
conclusions on his constitutional arguments.
STANDARD OF REVIEW
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It is well-established in Montana that a legislative enactment "is presumed to be
constitutional and will be upheld on review except when proven to be unconstitutional
beyond a reasonable doubt." City of Billings v. Laedeke (1991), 247 Mont. 151, 154,
805 P.2d 1348, 1349. A party attacking the constitutionality of a statute bears a
significant burden in establishing its invalidity. In re Matter of Wood (1989), 236 Mont.
118, 122, 768 P.2d 1370, 1373 (citation omitted).
Zempel asserts error by the Workers' Compensation Court in interpreting the law
applicable to this case. We review the Workers' Compensation Court's conclusions of
law to determine if the court's interpretation of the law is correct. Caekaert v. State
Compensation Mutual Ins. Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 498.
DISCUSSION
1. Did the Workers' Compensation Court err in concluding that 39-71-
501, MCA (1991), as applied, does not deny Zempel equal protection of the
laws?
The principal purpose of the Equal Protection Clause is to ensure that citizens are
not subject to arbitrary and discriminatory state action. Godfrey v. Montana State Fish
& Game Comm'n (1981), 193 Mont. 304, 306, 631 P.2d 1265, 1267. We review state
action or legislation subject to an equal protection challenge under one of three levels of
scrutiny. See McKamey v. State (1994), 268 Mont. 137, 145-46, 885 P.2d 515, 521.
If a fundamental right is infringed or a suspect class is affected, we apply strict scrutiny.
McKamey, 885 P.2d at 521. We apply middle-tier scrutiny in limited situations where
constitutionally significant interests are implicated by government classification. See
Butte Community Union v. Lewis (1986), 219 Mont. 426, 434, 712 P.2d 1309, 1314.
In all other situations, we apply the rational basis test; the inquiry under this test is
whether the classification is rationally related to a legitimate government objective.
McKamey, 885 P.2d at 521.
The Workers' Compensation Court applied the rational basis test to Zempel's equal
protection challenge to 39-71-501, MCA (1991). Zempel contends that, pursuant to
Lewis, middle-tier scrutiny applies because, like welfare benefits, workers' compensation
benefits are "lodged in" Article XII, Section 3(3) of the Montana Constitution. We
disagree that Lewis has application here.
At the time Lewis was decided, Article XII, Section 3(3) of the Montana
Constitution provided: "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." See Lewis, 712
P.2d at 1310 (emphasis added). We determined that this section did not create a
fundamental right to welfare benefits because the directive to provide such benefits was
not found within the Declaration of Rights and welfare was not a right " 'without which
other constitutionally guaranteed rights would have little meaning.' " See Lewis, 712
P.2d at 1311 (citation omitted). We noted, however, that welfare benefits were
sufficiently important to warrant reference in our Constitution and concluded that, by
virtue of the directive contained in Article XII, Section 3(3), welfare benefits were
"lodged in" the Montana Constitution. See Lewis, 712 P.2d at 1311, 1313. On that
basis, we held that classifications which abridge welfare benefits are subject to heightened
scrutiny, or a middle-tier analysis. Lewis, 712 P.2d at 1311, 1313-14.
Article XII, Section 3(3) of the Montana Constitution was amended in 1988,
approximately two years after we decided Lewis. The amended version was in effect at
the time of Zempel's work-related injury.
As amended, Article XII, Section 3(3) provides: "The legislature may provide such
economic assistance and social and rehabilitative services for those who, by reason of
age, infirmities, or misfortune are determined by the legislature to be in need."
(Emphasis added.) Unlike the version of Article XII, Section 3(3) at issue in Lewis, the
amended version does not contain a directive that the legislature shall provide welfare
benefits. Thus, the constitutional underpinning for our application of heightened scrutiny
to a statute abridging welfare benefits in Lewis no longer existed at the time of Zempel's
injury. As a result, Lewis provides no support for Zempel's argument for application of
middle-tier analysis here and it is not necessary to determine whether workers'
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compensation benefits are "lodged in" Article XII, Section 3(3) of the Montana
Constitution.
Moreover, we consistently have applied the rational basis test to equal protection
challenges in workers' compensation cases. See, e.g., Stratemeyer v. Lincoln County
(1993), 259 Mont. 147, 151, 855 P.2d 506, 509 (Stratemeyer I); Burris v. Employment
Relations Div./Dept. of Labor and Indus. (1992), 252 Mont. 376, 380, 829 P.2d 639,
641; Cottrill v. Cottrill Sodding Serv. (1987), 229 Mont. 40, 43, 744 P.2d 895, 897.
In fact, we have expressly rejected use of the middle-tier level of scrutiny in analyzing
equal protection arguments in a workers' compensation case. See Burris, 829 P.2d at
641 (citation omitted). We conclude, therefore, that the rational basis test applies in
determining whether 39-71-501, MCA (1991), as applied, denies Zempel equal
protection of the laws.
Zempel's equal protection argument is not a model of clarity. He contends that
he is advancing an "as applied" challenge, rather than a facial challenge, to the definition
of uninsured employer contained in 39-71-501, MCA (1991), in that application of the
definition to his situation precludes his entitlement to the same UEF benefits as "all other
workers." This approach apparently recognizes that a facial equal protection challenge
to the definition of uninsured employer contained in 39-71-501, MCA (1991), is not
available because Zempel is excluded from UEF coverage by controlling principles of
federal law regarding state jurisdiction over Indian reservations, rather than by the
statutory definition itself. On the other hand, Zempel relies on our analysis of a facial
equal protection challenge in Arneson v. State, by Dept. of Admin. (1993), 262 Mont.
269, 864 P.2d 1245, in arguing that the statutory definition of uninsured employer is
under-inclusive due to the exclusion from UEF coverage of injured workers employed by
Indian businesses operating exclusively within the exterior boundaries of the Flathead
Reservation.
In considering Zempel's equal protection challenge, we initially address the Act
itself and the underlying purpose of the UEF, which is part of the Act. The Montana
legislature enacted the Act to provide employees who experience work-related injuries
with guaranteed compensation on a no-fault basis while relieving employers from
potential uncapped tort recoveries. See Stratemeyer v. Lincoln County (1996), 276
Mont. 67, 74, 915 P.2d 175, 179 (Stratemeyer II); see also 39-71-105(1), MCA
(1991). To that end, and with certain statutory exceptions, employers in Montana are
subject to the Act and are required to provide workers' compensation insurance coverage
to their employees through enrollment in one of three workers' compensation insurance
plans. See 39-71-401, MCA (1991). Nothing in the 1991 Act specifically exempts or
excludes Indian businesses operated exclusively on an Indian reservation in Montana from
being subject to the Act.
The UEF was created as part of the Act to provide an injured employee of an
uninsured employer with the same benefits which the employee would have received had
the employer been properly enrolled in a workers' compensation plan. See 39-71-502,
MCA (1991). For UEF purposes, "uninsured employer" is defined as an "employer who
has not properly complied" with the Act by enrolling in a workers' compensation
insurance plan, as required by 39-71-401(1), MCA (1991). See 39-71-501, MCA
(1991). Thus, only injured employees of employers meeting the definition of uninsured
employer contained in 39-71-501, MCA (1991), are entitled to the "substitute" workers'
compensation benefits the UEF was created to provide to injured employees of employers
who have failed to "properly compl[y]" with the Act. See 39-71-501 and 39-71-502,
MCA (1991).
The UEF is part of the Act and inseparable from it. The UEF is funded by
reimbursed benefits from statutorily-defined "uninsured employers"--employers subject
to the Act but who fail to meet its requirements--as well as by penalties assessed against
such employers. See 39-71-504, MCA (1991). As a result, the UEF has no funding
mechanism to provide "substitute" workers' compensation benefits to injured employees
of employers not subject to the Act. If the UEF were to provide coverage to employees
whose employers are not subject to the Act, such as employees of Indian businesses
operating exclusively on Indian reservations, it would be unable to recoup such benefits
from the exempt employers. Nor would the UEF have authority to assess penalties
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against such employers.
Zempel's equal protection argument essentially asks us to unhook the UEF from
the Act of which it is an integral part, but it is the tie between the two--and the viability
of the UEF as a direct result of that tie--which is the very purpose for which the UEF
was created. The limitation on entitlement to UEF benefits to injured employees of
uninsured employers subject to the Act bears a reasonable relationship to that purpose
because it is only those employers subject to the Act in the first instance upon whom the
State can impose the reimbursement and penalty obligations which provide the source of
the UEF benefits.
In this regard, it is critical to recall that equal protection does not require that all
persons be treated alike regardless of whether their circumstances are the same; it
requires only that all persons be treated alike under like circumstances. See Billings
Assoc. Plumbing, Etc. v. State Bd. of Plumbers (1979), 184 Mont. 249, 253, 602 P.2d
597, 600 (citations omitted). Here, Zempel's circumstances are unlike those of injured
employees working for uninsured employers as defined by 39-71-501, MCA (1991).
Statutorily-defined uninsured employers have failed to comply with an Act to which they
are subject, but they remain subject to the state's authority to enforce funding for the
UEF through reimbursement and penalties. Schall, on the other hand, has not failed to
comply with the Act because he is not subject to it by virtue of federal Indian law; nor
is he subject to the state's authority to fund UEF benefits through imposition of
reimbursement and penalty obligations on employers subject to the Act. We conclude,
therefore, that because Indian businesses operating exclusively on Indian reservations are
not subject to the Act, the exclusion of injured employees of such employers from UEF
coverage--via application of the 39-71-501, MCA (1991), definition of "uninsured
employer"--is rationally related to the legitimate government purpose of providing
"substitute" workers' compensation benefits to injured employees of employers subject
to--but failing to comply with--the Act.
We note that Zempel relies entirely on Arneson in support of his argument that the
39-71-501, MCA (1991), definition of "uninsured employer" is under-inclusive and,
therefore, violates equal protection as applied to him. As noted above, however, Arneson
involved a facial equal protection challenge to a statute. Our analysis there, which
involved whether a rational basis existed for a legislative classification, cannot be
superimposed onto Zempel's "as applied" challenge to 39-71-501, MCA (1991), in this
case, because here it is federal law regarding state jurisdiction over Indian reservations--
rather than a legislative classification--which results in the classification excluding Zempel
from UEF coverage.
Moreover, we agree with the Workers' Compensation Court's observation that,
when citizens of Montana avail themselves of jobs on an Indian reservation, they agree
to abide by tribal rules. It is no more onerous to exclude a Montana citizen who decides
to work on an Indian reservation from the protections of the Act--and the UEF--than to
exclude a Montana citizen who decides to work in another state.
Accordingly, we hold that the Workers' Compensation Court did not err in
concluding that 39-71-501, MCA (1991), as applied, does not deny Zempel equal
protection of the laws.
2. Did the Workers' Compensation Court err in concluding that 39-71-
501, MCA (1991), as applied, does not deny Zempel access to the courts?
Relying on Article II, Section 16 of the Montana Constitution, Zempel argues that
the Workers' Compensation Court erred in concluding that 39-71-501, MCA (1991),
as applied, does not deny him access to the courts. His denial of access to the courts
argument is based entirely on his lack of entitlement to the legal remedies afforded
injured employees under the Act. Specifically, he points out that he is denied access to
the Workers' Compensation Court because his employer, Schall, is not subject to the Act
and that he is precluded from bringing an independent cause of action under 39-71-515,
MCA (1991), because Schall is not an uninsured employer as defined in 39-71-501,
MCA (1991). We observe that the concessions inherent in Zempel's specifications of
denial of access--that Schall is not subject to the Act and is not an "uninsured employer"--
constitute an implicit concession that the Act is inapplicable.
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Article II, Section 16 of the Montana Constitution provides that "[c]ourts of justice
shall be open to every person. . . ." Whatever the parameters of this right of access to
the courts may be, Zempel cites to no authority pursuant to which a court action under
a purely statutory scheme such as the Act must be permitted even where the Act itself is
conceded to be inapplicable to the case at hand.
Furthermore, nothing in 39-71-501, MCA (1991), as applied to Zempel,
precludes the viability of non-workers' compensation claims or actions under such
circumstances and, indeed, an employee of such an employer not subject to the Act is not
limited by the exclusive remedy provision contained within the Act. See 39-71-411,
MCA (1991); see also Kleinhesselink v. Chevron, U.S.A. (Mont. 1996), 920 P.2d 108,
111, 53 St.Rep. 668, 669; Stratemeyer II, 915 P.2d at 181. Thus, while application of
39-71-501, MCA (1991), may preclude judicial access and remedies under the Act, it
does not prevent Zempel from pursuing non-Act claims against Schall.
It is true that federal law may limit Zempel's legal recourse against Schall to an
action in the Tribal Court, because state courts generally do not have jurisdiction over
civil causes of action by a non-Indian against an Indian where the event at issue occurred
on an Indian reservation; assumption of jurisdiction by the state in such actions would
"undermine the authority of the tribal courts over Reservation affairs and hence would
infringe on the rights of Indians to govern themselves." See Williams v. Lee (1959), 358
U.S. 217, 223, 79 S.Ct. 269, 272, 3 L.Ed.2d 251, 255. However, Zempel has cited to
no authority, and this Court has found none, which requires--or even allows--guaranteed
access to state courts for an injury where such access is precluded by federal law
prohibiting the exercise of state jurisdiction over the claim. Accordingly, we hold that
the Workers' Compensation Court did not err in concluding that 39-71-501, MCA
(1991), as applied, does not deny Zempel access to the courts.
Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
Justice Terry N. Trieweiler specially concurring.
I concur with the result of the majority opinion. However, consistent with my
dissenting opinion in Stratemeyer v. MACO Workers' Compensation Trust (1993), 259
Mont. 147, 155, 855 P.2d 506, 511, I would apply middle-tier scrutiny to any legislative
classification which denies workers' compensation benefits to distinct classes of injured
employees.
Nevertheless, applying middle-tier scrutiny to the distinction alleged in this case,
I would arrive at the same conclusion that the majority has reached pursuant to the
rational basis test.
For these reasons, I specially concur with the majority opinion.
/S/ TERRY N. TRIEWEILER
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