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: TheMontana 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 CompensationMutual 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 ClerkJustice 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, Stratemeyerwas 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 continuallyplagued 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 2continued to suffer anxiety problems and was unable to return to work. Stratemeyer submitted a claim for WorkerstCompensation 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 thenpetitioned 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 compensationbased 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,aswe 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 thegovernmentof equal dignity;each is alike supreme inthe exercise of its proper functions, and cannot directly or indirectlywhile actingwithin the limits of its authoritybe subjectedto the control or supervision of the other without 

### an unwarrantable assumptionby that other of power which, by the Constitution, is not conferred upon it. The Constitution apportions the powers of governmentsbut 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 theConstitutionas theparamount 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 agrowing state. The constitutionalprovision should receive a reasonable andpractical interpretation inaccordwith common sense. The constitutionalityof a legislative enactment isprima faciepresumed,and every intendment in its favor will be presumed, unless its unconstitutionality appears beyond a reasonabledoubt. The question of constitutionality is not whether it is possible to condemn,but whether it is possible to uphold the legislative actionwhich will not be declared invalid unless it conflicts with the constitution, in the judgment of the court, beyond a reasonable doubt. FallonCountyv. State (1988),231Mont. 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 ofreview for Workers' Compensationcases challenging a statute on the basis of equal protection. We have enunciated the following: [Tlhe right to receiveWorkerstCompensationbenefits 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 accomplisha 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 fromthe 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 thebody.



# . . . (3) ttInjurytt or ttinjured" 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 injurywasnot coveredunder 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 WorkerstCompensationAct in 5violation of equal protection of the law. Inapplying 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 fortheclassification createdby section 39- 71-119,MCA (1987)

### , the legislature must provide it. The Courtmay 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 legislativehistory. However,appellant argues thattheWorkers' 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. TheNinth Circuithas stated: It[i]n our review of governmentalpurposes,. ..weneed not rely only upon thosepurposes 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. (9thCir. 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 WorkerstCompensation laws....) (Emphasisadded.) 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, theWorkers' Compensation Court expected the legislaturetoprovide the purpose. This, however, is not required of legislationbeing examined relative to equal protection. Appellant contends that the Workers' Compensation Court ignoredtherule that legislation ispresumed tobe constitutional. Further, it did not require the respondent to meet 

### his burden of proving the statute was unconstitutional. Appellant claims the respondentprovided no testimony, no evidence nor any case law to argue that the statutewas invalid. Respondentmerely argued that the distinction between physical and mental injury claims was nonsensical and unfair. This Court concludes that theWorkersvCompensation Court did not properly apply these rules for analyzing legislation under an equal protection challenge. The Workers1Compensation 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 aregood reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislatureafterallhas theaffirmative 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 timesthe judgeshavebeen overruledby 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 familiaritywith localproblems. Classification isdependentonlegislativepurpose. Legislative purposeis 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 todemonstrate any actual cost or cost savingsassociated 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 concernover the high cost of theWorkers' 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 legislativechanges 

### in theWorkers' 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. 8In 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 compensationcasesnormally deal withphysical injury resulting from an accident,as the term isused 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. Theproblem 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 legislaturemay think. Or the reform may take one step at a time, addressing itself to thephase of theproblem which seems most acute to the legislative mind. The legislaturemay 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 Statev. 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 Courthas 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 caseswhere 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 instancestowhich itmight 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 justifiedwhen it is considered that legislative dealing with suchproblems isusually an experimentalmatter. It is impossible to tell how successful a particular approach may be, what dislocations might occur, what evasions might develop, whatnew evils mightbe 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 legislaturewas 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 foranalyzingtheconstitutionalityof 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. Itprovides that It[t]he dignity of the human being is inviolable. No person shall be denied the equal protection of the laws." Yet, thepurpose served by that language in any society based on equality is absolutely vital. It recognizesthatmajoritarian rule can at timesbe harsh, intolerant, and unfair. It recognizes that at times a basic framework ofprinciple isnecessarytoprevent thosewithpolitical 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 unfortunatepeople injured and disabled during the courseof their employment. No group has had greater influence than those employers, led by the State's newspaper publishers, who consider injuredworkers 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 decisionby themajority soundsthedeathknell for this critical constitutional protectionwhich powerless people have traditionally relied on courts to enforce. Based on themajority's decision in this case,discriminatory laws in Montana need have no rational basis in fact so long as a majority of themembers of thisCourt can contrive somespeculative basis to support such discrimination.

### Tounderstand thehuman impact of today's decision and of the anti-claimant

### hysteria that is sweepingthisState, it isnecessary to know more about the circumstances of Gary Stratemeyer than is evident from the 

### majority opinion. Stratemeyer 

### is a 41-year-old formerdeputy 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 dispatcherwho advised 

### him of 

### a reported suicide. Although he had been in law enforcement for eight years, he 

### had never previously responded to a suicideattempt. 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 thebedroom where 

### shewas 

### located and observed that "therewas 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 dyingyoungwoman inhis 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'sarmsduring the lastmoments of her life. He continued to reporttowork, but began to experience an inabilityto concentrate and mental disorientation. He 

### became increasinglydistraught and developed emotional problems that interfered with his work and 

### his personal life. He 

### couldnot sleep,was continuouslyexhausted,and felt the need to escape the town inwhich 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, 

### Stratemeyerwas 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 includeproblems with his stomach, diarrhea, and periodic vomiting. He experiences periodic tingling and numbness in his arms. 

### is employer does not dispute the nature of hismental injury

nor the extent of his disability. Nor 

### is there any doubt that his injuryresulted fromanunexpected 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 tohis mind, rather than to some otherpart 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 capacitywas 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 Stratemeyerswill haveno constitutional protection in Montana from similar discriminatory treatment by legislators anxious to please influential constituents. The

### majority opinion is thebestexampleyet 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 clearlybe 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 *rationalbasis" standard of review, the Legislatureneed 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 authoritytodrawarbitraryclassificationsamong its citizens is the creative ability of themajority of the justiceson this Court. If the majority can imagine some speculative but unsubstantiated basis fordiscriminating amongMontana'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 MassachusettsBoard 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 asmuch. Ithas 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-tiermodel employed by themajority offers a simplemechanical 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 subjectto strict scrutiny. If a statute is subject to strict scrutiny, the statute always, or nearly always, see Korematsu

### v. UnitedStates, 323U.S. 214 (1944)

## , is struckdown. 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 unrelatedtothe individualworth 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 canbe termed "wholly irrelevant" to the legislative goal. McGowan

### v. Maryland, 366 U.S. 420, 425 (1961). [Citationsomitted.] Murgia, 427 U.S. at 319-20.It is no wonder that in TheSupremeCourt1971Term--Foreword:InSearch ofEvolving DoctrineonaChangingCourt:AModel foraNewerEqualProtection 86 Harv. L. Rev. 1, 8 (1972), Professor Gerald Gunther observed that the Warren Court applied either "scrutiny that was 'strictrin 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 questionpresented to the Supreme Courtwaswhether that denialwas consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In concluding that the Equal Protection Clausewasviolated, themajority of the Court recognized that undocumented aliens are not a suspect class and that education is not a fundamental right. Therefore, 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 thatthe 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 todeny adiscrete 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 isAffirmed. 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 towhich the Court's scrutiny is heightened depends both on the nature of the interest and the degree to which it is infringed. Thus, in Pbkrv.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 inthe Court's decision to heighten scrutinywas the risk that such deprivation would serve to "create and perpetuate



# . . . a subclass of illiterateswithin our boundaries." Likewise, inHampton

### v. MowSun 

### 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 ofsensitive,although not necessarily suspect,criteria of classification. LawrenceTribe,American Constitutional Law, 5 16-33 (2dEd. 1988). Similarly,our Court has recognized a middle tier of analysis where important rights are involved, even though those rights are not considered fundamental. InButteCommunity Unionv.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 theMontana 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 showa ~lcompelling state interest" for its action. If the right is other than fundamental, or the classificationnot 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 implicatedby 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.

Forthese reasons, we adopted the following standard of review for those interests which we deemed significant enough to warrant

a middle tier of analysis: Wehold that a findingthat HB 843 is constitutional requires the State to demonstrate two factors: (1) that its classification of welfare recipientson 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.

InStateexrel.Bartmess

### v.BoardofTncsteesofSchoolDktrictNo.I (1986)

## , 2 23 Mont. 269, 275, 726 P.2d 801, 804-05, we reaffirmed our commitmentto a middle tier of scrutiny and held that a high school student's righttoparticipate in extra-curricular activitieswas 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 determiningwhether the 2.0 ruleviolates 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 protectionandthatamiddle-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. Thebenefits provided for under the Workers' CompensationAct will, in many cases, be the difference between a family's subsistence and its financial ruin. The ability to provide for a family'shousing, transportation, food,and clothingmay 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. Thevital importance of abasic disabilitybenefit 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 significantto the social and economic well-being of

our citizens that employerswho 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 familywhose primary wage earner has lost the ability to provide his or herfamily with financial support. To hold otherwise is to ignore the reality that unless disabled workers are compensated for their disability by the industry inwhose 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 Iwould apply to the Legislature's arbitrary denial of disability benefits to Gary Stratemeyer, the decision of the WorkerstCompensation 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 ismore important thanGary Stratemeyer's interests in these basic disability benefits. There is no such evidence in the record before this Court. No purpose fox this discriminatory legislationwas offeredby the Legislature. 

### No purpose was demonstrated by Stratemeyer's employer 

### in the trial court, The WorkersaCompensation Judge was left to speculate without 

### any factual or evidentiary basis to justify treating injuries to themind differently 

### from injuries to the back or leg. Since the trial judge found no justification 

### for this discriminatory treatment, themajority hasmanufactured justifications. Themajority speculates that excluding injuriesto themind from coverage under the Workersa Compensation Act might be costeffective. 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 majoritywouldhave

### no difficulty findinga rationaleconomic basis for its decision. Themajority'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 stressprior 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 inMontana. 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 formost 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. Themajority also surmises that a rationalbasis for excluding mental injuries from coverage under the Workers' Compensation Act

'~hrisSykes,

### AHeavy Toll: What Workers1 CornpCosts andHow Montana Rates, GREAT FALLS TRIBUNE. Feb. 14, 1993, at 4A. 25may 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 thatmental injurieswere excluded because of the difficulty proving them. The notion that mental injuries are difficult toprove 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 measuringmany 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 excludingmental injuries fromcoverage under theWorkers' Compensation Act finds support only in the editorial pages of this State's daily newspaperswhich, for thepast year,havebullied and threatened this State's courts over the issue presented in this

case.

# * ~heseuninformed opinions are certainly no basis for

'~ditorial, Stress Could Break Workers1 Comp Bank, GREAT FALLS TRIBUNE, May 19, 1992, at 4A. Editorial, CourtCasesAdd to Work-C0mpWoes, INDEPENDENT RECORD, May 24, 1992, at 5C. Editorial, 

### Theyore 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 toMarcRacicotandMontana State LegislatureFrom Tribune EditorialBoard, 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. Idissent. Like Justice Trieweiler, I can findno evidenceto 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,requiresmore than claimanthasprovided here,we are indeed in woeful economic straits. Iwould affirm the Workers' Compensation Court.June23, 1993 CERTIFICATEOFSERVICE I herebycertifythat thefollowingorderwas sentby United Statesmail,prepaid,tothe followingnamed:

Norman H. Grosfield Utick&Grosfield P.O.Box512 Helena,MT 59624-0512 SydneyE.McKenna Patterson,Marsillo,Tornabene,Schuyler&McKenna 103 So.5thEast Missoula,MT 59801 CharlesG.Adams,Legal Counsel StateComp. MutualIns.Fund P.O.Box 4759 Helena,MT 59604 RobertE.Sheridan Garlington,Lohn&Robinson P.O.Box7909 Missoula,MT 59807-7909 JohnJ.Richarson,Esq. BECK LAWOFFICES Aspen Professional Center 1700WestKoch,Suite 2 Bozeman,MT 59715 

### EDSMITH CLERKOFTHESUPREME COURT