dissenting.
Respectfully, I dissent.
The Majority Opinion fails to recognize that while teachers are an appropriate separate class for education related purposes, it is purely arbitrary when KRS 161.700(2) treats them as such for the purpose of “division of marital property in an action for dissolution of marriage.”
The need for an attractive retirement system to “serve as an incentive to attract and retain teachers” is not a special reason. Teaching is not essentially different from any other occupation that contributes to the welfare of society. The issue is not whether such occupations should have an attractive retirement system, but whether persons in such occupations should get special treatment when it is time to make an equitable division of marital property with their spouses. The reasons advanced by the Majority to justify special treatment cannot stand up to the test of constitutionality stated in Board of Educ. of Jefferson Co. v. Board of Educ. of Louisville, 472 S.W.2d 496, 498 (1971):
“A classification based upon purely artificial, arbitrary or fictitious conditions is unreasonable and will not be permitted.”
Or of Gillis v. Yount, Ky., 748 S.W.2d 357, 363 (1988):
“Differences of a nature which permit classification for one governmental function are not transferable to permit classification for a different function.” [Emphasis added.]
As stated in Tabler v. Wallace, Ky., 704 S.W.2d 179, 187 (1986), the issue of constitutionality under Kentucky Constitution Section 59 must turn
“on whether the General Assembly had a rational justification for creating a special class and conferring special privileges and immunity on that class.... No substantial reason has been presented to us.”
The “social security” explanation for this statute will not wash. Social security benefits are not exempt from consideration in marital dissolution actions. Roberts v. Roberts, Ky.App., 744 S.W.2d 433 (1988). Many teachers earn income from other sources as well as teaching and are entitled to social security benefits. Many other persons as well as teachers do not qualify for social security benefits in whole or in part, but get no special treatment in marital dissolution as a special class because of it.
The facts show that the appellant will receive a distribution from the appellee’s social security plan just because she was his wife for 34 years, regardless of KRS 161.700(2). The reason for this is that pursuant to the terms of the Social Security Act, a divorced spouse 62 or over receives benefits based on the earnings of the former spouse if she is divorced and is not entitled to her own social security benefits based on her own work record. See Social Security and Medicare; 42 U.S.C.S. Section 402. In KRS 161.700(2), the General Assembly has enacted a law protecting the teacher’s equivalent of social security benefits, while the wife still gets a share of the non-teacher husband’s social security benefits.
*710The Majority Opinion states that “the impact of applying the challenged exemption found in KRS 161.700(2) is balanced by provisions found in KRS 403.190(4).” But no such balancing occurs unless the teacher’s spouse has retirement benefits of equal value, equally exempt. KRS 403.-190(4) does not cure the constitutional defect.
Fair is fair. Teachers are not entitled to special privileges in divorce court. One can only conclude that KRS 161.700(2) is special legislation prohibited by Section 69 of the Kentucky Constitution.
Furthermore, the Majority Opinion errs in applying KRS 161.700(2) retroactively to contributions made before July 1980, its effective date. A statute should not be given such effect if it (1) impairs vested rights or (2) the statute does not clearly state that it should have retroactive effect. See KRS 446.080(3); Dean v. Gregory, Ky., 318 S.W.2d 549 (1958); Taylor v. Asher, Ky., 317 S.W.2d 895 (1958).
The appellant has a vested interest in benefits accumulated under the Teacher’s Retirement System before the effective date of the statute in question. Under KRS 403.190(2) “ ‘marital property’ means all property acquired by either spouse subsequent to the marriage” with certain stated exceptions which are not applicable here. In deciding whether the spouse’s pre-1980 interest in the Teachers Retirement Fund is marital property, the issue is whether the teacher had a vested interest in these retirement benefits when the statute was passed, not whether the teacher’s spouse had such an interest.
The Majority Opinion has erred by applying KRS 161.700(2) retroactively to a property interest which classifies as marital property acquired before the effective date of the statute.