DAVID 

No. 86-467 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

COTTRILL, 

Claimant and Appellant, 

-vsCOTTRILL SODDING SERVICE, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jack M. 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: NOV 3 - 198z 

Clerk 
Mr. 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 appeal are: 

1. Can plaintiff raise the issue of constitutional 

equal protection violation at the appeal level? 

2. Does S 39-71-401(2) (c), MCA, violate the equal 

protection clauses of the Montana and Federal Constitutions? 

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 of Cottrill Sodding Service, a business owned by his 

father. At the time of the hearing he was 22 years old, 

single and a fifth year student at the University of Montana. 

David was working for his father over the summer as he had 

for the past three summers. He intended to return to school 

in the fall. At the time immediately preceding and at the 

time of the accident, David was living in his parent's home, 

although he claimed that his "residence" was in Missoula. 

The sod business was insured under Plan I11 of the Workers' 

Compensation Act, but David's father/employer had 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 this Court 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 

and will be decided accordingly. 

Issue 2. Is 5 39-71-401(2) (c), MCA, unconstitutional? 

Appellant, David Cottrill, argues that S 39-71-401(2) (c) 

violates both the Montana and Federal Constitutions. We 

agree. 

Art. 11, $ 4 of the 1972 Montana Constitution states 

that 

[tlhe dignity of the human being 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 of his 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 due process of law; nor deny to any person within 

jurisdiction the 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), 631 P.2d 1265, 1267, 38 St.Rep. 661, 

663. 

Both parties agree that the right to receive Workers' 

Compensation benefits is not a fundamental right which would 

trigger a strict scrutiny analysis of equal protection. 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 this 
Court is the rational relationship test. That is, does a 

legitimate governmental objective hear some identifiable 

rational relationship to a discriminatory classification. 

Godfrey, 631 P.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. (Cites omitted.) 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), 197 Mont. 339, 

346, 642 P.2d 1074, 1078. 

In the present case there is nothing on the face of the 

statute to indicate what the state interest may be in 

excluding from Workers' 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 

forthcoming to our collective minds. 

No employee whose employment falls under the Workers' 

Compensation Act can personally elect coverage. Section 

39-71-410, MCA. Therefore, David Cottrill is dependent 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 to members of an employer's 

family who do not dwell in the employer's household. If this 

classification is applied, then an employer's son residing in 

his father's household is not covered by workers' compensation (absent an 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 equal protection 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 that 5 39-71-401(2)(c), MCA, is unconstitutional. 

We reverse and remand to the Workers' Compensation Court 

for a determination of benefits due to David Cottrill. 

n 

We Concur: /