DAVID No. 86-467
INTHE SUPREMECOURT OF THE STATEOF MONTANA 1987

COTTRILL, Claimant and Appellant,-vsCOTTRILL SODDING SERVICE,Employer, and
STATE COMPENSATION INSURANCEFUND, Defendant and Respondent.

APPEAL FROM: TheWorkers' CompensationCourt, TheHonorable Timothy Reardon,Judge presiding.
COUNSEL OF RECORD:
ForAppellant: JackM. Scanlon,Helena,Montana Donald A. Garrity argued, Helena,Montana
For Respondent: Nancy Butler argued, Helena,Montana

Submitted: September 15, 1987 Decided: November 3, 1987

Filed: 

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ClerkMr. Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Appellant, David Cottrill, appeals from an order of the Workers' Compensation Court denying his claim for wage benefits. The Workers' Compensation Court also denied appellant's petition for a rehearing because the constitutional issue raised for rehearing was at no time earlier raised. We reverse and remand to the Workers' Compensation Court. The issues raised on appealare: 1. Can plaintiff raise the issue of constitutional equalprotection violation at the appeal level? 2. Does S 39-71-401(2)(c), MCA, violate the equal protection clauses of the Montana and FederalConstitutions? The uncontested facts are as follows: David Cottrill
was injured on September 15, 1985, while working within the
course and scope of his employment. He was at that time an employee ofCottrill Sodding Service, abusiness ownedby his father. At the time of the hearing he was 22 years old, singleand a fifthyear studentat theUniversity ofMontana. David was working for his father over the summer as he had for thepast three summers. He intended to return to school in the fall. At the time immediately preceding and at the time of the accident,Davidwas living in hisparent's home, although he claimed that his "residence" was in Missoula. The sod business was insured under Plan I11 of the Workers' CompensationAct, butDavid's father/employerhad not filed a special election of coverage for his son. Compensation for David's claim was denied by the Workers' Compensation Court under 5 39-71-401(2) which provides that:Unless the employer elects coverage for these employments under this chapter and an insurer allows such an election,the Workers' Compensation Act does not apply to any of the following employments:

(c) employment of members of an employer's family dwelling in the employer's household;
Issue 1. Can plaintiff raise the issue of constitutional equal protection violation at the appeallevel? Respondent is correct in that the general rule is that issues brought before thisCourt for the first time on appeal will not be considered. Akhtar v. Van de Wetering (1982), 197 Mont. 205, 209, 642 P.2d 149, 152. However, this Court. "reserves to itself the power to examine constitutional issues that involve broad public concerns to avoid future litigation on a point of law." Even if an issue is raised for the first time on appeal this Court can hear the issue "if the alleged

# . . .error affects the substantial rights of
a litigant." Matter of N.B. (Mont. 1980), 620 P.2d 1228, 1231, 37 St.Rep. 2031, 2033. We hold that this appeal is properly before this Court andwillbe decided accordingly. Issue 2. Is 5 39-71-401(2)(c),MCA, unconstitutional? Appellant, David Cottrill,argues thatS 39-71-401(2)(c) violates both the Montana and Federal Constitutions. We agree. Art. 11, $ 4 of the 1972 Montana Constitution states that [tlhedignity of thehumanbeing is inviolable. No person shall be denied equal protection of the laws. Neither the State nor any person, firm, corporation, or institution shall discriminate against any person in the exercise ofhis civil or poli.tica1 ri.ghts on account of race, color, sex,culture, social origin or condition, or political or religious ideas. This provides for even more individual protection than the comparable Fourteenth Amendment, $ 1 to the United States Constitution,which provides that: "No state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without dueprocess of law;nor deny to any personwithin jurisdictionthe equal protection of the laws." States do have the right to make reasonable classifications. Royster Guano Co. v. Virginia (1920)

## , 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989, 990. However, "[tlhe principal purpose of the Equal Protection Clause, Amend. XIV, U.S. Const., and Art. 11, Sec. 4, 1972 Mont. Const., is to ensure that persons who are citizens of this country are not the subject of arbitrary and discriminate state action." Godfrey v. Mont. State Fish & Game Com'n (Mont. 1981), 631P.2d 1265, 1267, 38 St.Rep. 661, 663. Both parties agree that the right to receive Workers' Compensation benefits is not a fundamental rightwhich would trigger a strict scrutiny analysis of equalprotection. See Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. Nor does this statute infringe upon the rights of a suspect class. Examples of fundamental rights are the right of privacy, freedom of speech, freedom of religion, right to vote and the right to interstate travel. Examples of suspect classifications include wealth, race,nationality and alienage. Oberg v. City of Billings (Mont. 19831, 674 P.2d 494, 495,40 St.Rep. 2034, 2036. When a right determined to be less than fundamental is infringed upon by classification, the test applied by thisCourt is the rational relationship test. That is, does a legitimate governmental objective hear some identifiable rational relationship to a discriminatory classification. Godfrey, 631P.2d at 1267. A classification that is patently arbitrary and bears no rational relationship to a legitimate governmental interest offends equal protection of the laws. (Citesomitted.) As we have previously held, equal protection of the laws requires that all persons be treated alike under like circumstances. Tipco Corp., Inc. v. City of Billings (1982),197Mont. 339, 346, 642P.2d 1074, 1078. In thepresent case there is nothing on the face of the statute to indicate what the state interest may be in excluding fromWorkers' Compensation coverage the employer's family member employees who reside in the employer's household unless specifically elected by the employer. Nor is there any legislative history from which to glean a possible governmental objective for this classification. Although this Court could speculate as to why the legislature elected to treat these select individuals differently under the Workers' Compensation laws, no reasonable or readily identifiable state interest is forthcomingto our collectiveminds. No employee whose employment falls under the Workers' Compensation Act can personally elect coverage. Section 39-71-410,MCA. Therefore, David Cottrill isdependent upon his father to make an election of coverage for him. With very few exceptions, no other employee must take that involuntary risk. Even uninsured employers are covered in the event of employee injury. Section 39-71-501, et seq. The class of employees being considered for equal protection purposes under the Constitution are "members of an employer's family dwelling in the employer's household" $39-71-401(2)(c), MCA, as compared tomembers of an employer's familywho donot dwell in the employer's household. If this classification is applied,then an employer's sonresiding in his father's household is not covered by workers' compensation (absentan election by his father)whereas a son residing in his own dwelling next door to his father's household would be covered. As previously stated, no rational basis for such a distinction is contained in the statute nor has one been presented in argument to this Court. We conclude that the statutory classification violates the equalprotection clause of the Montana Constitution. Because there has been a failure to demonstrate a rational basis for the infringement of such a constitutionally protected right, we hold that5 39-71-401(2)(c), MCA, isunconstitutional. We reverse and remand to theWorkers' Compensation Court for a determinationofbenefits due to David Cottrill. n

We Concur: 

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