dissenting: I agree with the majority opinion’s
determination that the result reached in this case depends upon whether the challenges to the constitutionality of the statute are viewed from the perspective of the deceased worker or his dependents. The dependents herein are not now, nor have they ever been, residents of the United States. Accordingly, the dependents have no claims to assert based upon violation of their rights under the Kansas or United States Constitutions. I disagree with the majority’s conclusion that the deceased resident alien employee’s constitutional rights are the proper perspective from which to determine claims made by the employee’s dependents. The majority opinion, in essence, transfers the deceased’s constitutional rights, acquired through residency and employment in Kansas, to individuals who have never been subject to the laws or constitutions of Kansas or the United States without, in my opinion, an adequate legal basis for so doing.
As noted in the majority opinion:
“The workers compensation laws in all but nine states have special provisions for nonresident alien dependents. ‘Five states expressly include nonresident aliens on equal terms with other dependents; five states exclude them from benefits altogether. Most of the rest provide for reduced benefits or the commutation of benefits to a lump sum on a reduced basis, and many restrict the classes of beneficiaries.’ 2 Larson’s Workmen’s Compensation Law § 63.50, at 11-185-86 (1993).”
Four jurisdictions have considered constitutional claims of disparate statutory treatment to surviving nonresident alien dependents of deceased resident alien employees. The cases, set forth in the majority opinion, are Pena v. Industrial Com’n of Arizona, 140 Ariz. 510, 683 P.2d 309 (Ct. App. 1984); De Ayala v. Florida Farm Bureau Cas. Ins., 543 So. 2d 204 (Fla. 1989); Pedrazza v. Sid Fleming Con., Inc., 94 N.M. 59, 607 P.2d 597 *130(1980); and Alvarez Martinez v. Industrial Com’n of Utah, 720 P.2d 416 (Utah 1986). The Utah, New Mexico, and Arizona cases all upheld their respective statutes affording disparate treatment to nonresident alien dependents of deceased resident alien employees. Only Florida, in the De Ayala case, opted to transfer the deceased’s constitutional rights to the nonresident alien dependents and then strike down the legislation in question on constitutional grounds. The Florida case is hardly a beacon in the darkness which we should follow. It is, at most, a weak candle. The Florida court accomplished the transfer of constitutional rights to the dependents in a summary manner, stating only:
“Respondent initially urges us to find that petitioners, as nonresident aliens, are not entitled to assert the constitutional principles that form the basis of this action. Except for the fact of decedent’s residence in Florida, this would be true. Johnson v. Eisentrager, 339 U.S. 763, 70 S. Ct. 936, 94 L. Ed. 1255 (1950). However, we do not perceive this case as hinging on the constitutional rights of the surviving dependents, but on the constitutional rights of the worker, now deceased.
“The Florida Constitution expressly provides:
‘All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property . . . .’
Art. I, § 2, Fla. Const, (emphasis added). The issue in this case is not what petitioners themselves have earned, but what decedent earned during his life here in the state of Florida. This case concerns whether a worker who happens to have dependents residing out of the country is entitled to the same fruits of his or her labor as any other worker, including the same insurance benefits where the state has required those benefits to be provided. It thus is immaterial that petitioners happen to be nonresident aliens, since they have standing in this context as his beneficiaries. Accordingly, we reach the merits.” 543 So. 2d at 206.
The Kansas Constitution does not contain a “to be rewarded for industry” provision which was seized upon by the Florida Supreme Court to justify its unique holding.
Reference should also be made to certain Social Security provisions. Dependents of deceased covered workers are entitled to benefits subject to certain conditions. The history of restriction on nonresident alien beneficiaries was discussed in Ganem v. Heckler, 746 F.2d 844, 846 (D.C. Cir. 1984), as follows:
*131“Until recent years, all nonresident aliens were precluded from receiving disability or survivor benefits under the Act. See 42 U.S.C. § 402(t)(l). Amendments to the Act passed in 1969 created an exception to this general rule for certain classes of nonresident beneficiaries: if a wage earner has resided in the United States for more than ten years or has earned more than forty quarters of coverage, for example, the wage earner’s nonresident beneficiaries retain their eligibility for benefits. Pub. L. No. 90-248, 42 U.S.C. § 402(t)(4)(A) and § 402(t)(4)(B). To receive these benefits, however, the beneficiary must reside in a country which does not have a social insurance scheme that discriminates against Americans.”
Thus, Social Security nonresident beneficiaries have always been subject to varying disparate treatment.
I believe the majority has improperly transferred the deceased resident alien’s constitutional rights to the nonresident alien dependents to defeat the statute and to reach a result which may be perceived as “fair” or “socially desirable.” However, such arguments are properly addressed to the legislature. It is axiomatic that a statute is presumed constitutional and all doubts must be resolved in favor of its validity. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 834 P.2d 368 (1992). Our judicial responsibility is to determine whether the legislature could constitutionally enact this legislation.
I would uphold the statute and affirm the district court.
Six, J., joins in the foregoing dissenting opinion.