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) 

Filed: 

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 ~~cided: June 23, 1993 

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 orttinjured" 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 it.'! 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 Court 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 state where the psychologist who examined 

him observed that lt[h]e was obsessing about the 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 full 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 the best example yet for the belief 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 

Legislaturefs authority 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 (1976)~ 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 8 6 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. Theref ore, 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: 

[TI he 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 ( 19 8 6 ) , 2 2 3 

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 who 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 justifications. 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 

'~hris Sykes, 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 justification 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. * ~hese 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 OF 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 OF THE SUPREME COURT