Opinion
No. 84SA5
Decided September 30, 1985. Rehearing Denied November 4, 1985.
Appeal from District Court, City and County of Denver Honorable Harold D. Reed, Judge
A. Bruce Jones, Bruce W. Sattler, Kathryn E. Miller, Holland Hart, for Plaintiff-Appellant.
Stephen H. Kaplan, Denver City Attorney, Dianne E. Eret, Assistant City Attorney, for Defendants-Appellees.
EN BANC
The plaintiff, Birdie L. Branson, appeals the judgment of the Denver district court affirming the decision of the defendants, the Board of Trustees of the Firemen's Pension Fund for the City and County of Denver (the board), that denied her benefits as the surviving spouse of a disabled Denver firefighter because she was not married to the firefighter at the time he applied for retirement. The district court held that section 31-30-509, 12 C.R.S. (1977), restricting widows' benefits to widows who married retired firemen before they applied for retirement, did not violate the guarantees of equal protection in the fourteenth amendment to the United States Constitution and in article II, section 25 of the Colorado Constitution. We reverse.
Section 31-30-509 provides in part: "If any member, officer, or employee of said fire department dies from any cause while in the service or while on the retired list, leaving a surviving widow whom such officer, member, or employee married previous to his application for retirement or previous to April 5, 1945, if he was then on the retired list, such marriage having been legally performed by a duty authorized person, such surviving widow shall be awarded a monthly annuity equal to one-third of the monthly salary of such member, officer, or employee at the time of his death or retirement plus one-third of any increase in salary and longevity or additional pay based on length of service granted to firemen of the rank or comparable successor rank which said member, officer, or employee held in the department on the date of his death or retirement so long as the widow remains unmarried." (underlined portion held unconstitutional and invalid in Carter v. Firemen's Pension Fund, 634 P.2d 410 (Colo. 1981)). In 1977, the General Assembly changed "widow" to "spouse" throughout section 31-30-509.
A guarantee of equal protection is inherent in the due process clause of the Colorado Constitution. Millis v. Board of County Commissioners, 626 P.2d 652 (Colo. 1981).
William L. Branson retired from the Denver Fire Department with a disability retirement pension after serving as a fireman for 20 years and nine months. He married Birdie L. Branson on February 7, 1963, four years after his retirement. The Bransons remained married until William Branson's death on April 26, 1976. In December 1982, Birdie Branson applied for benefits from the Firemen's Pension Fund. Her application was denied because section 31-30-509, 12 C.R.S. (1977), which governed the payment of benefits to widows of retired firemen in cities with populations greater than 100,000, only granted benefits to widows who married the firemen before the firemen applied for retirement.
The statutes governing awards of pension benefits to Colorado police officers and firefighters were completely revised in 1979 to establish a statewide fund and board to administer firefighters' and police officers' pension plans. See ch. 316, sec. 1, §§ 31-30-1001 to -1016, 1979 Colo. Sess. Laws 1189, 1189-203. A firefighter or police officer may elect to take a reduced pension, providing pension benefits to any beneficiary after his death. §§ 31-30-1006(4) and 31-30-1007(5)(b)(I), 12 C.R.S. (1984 Supp.). The revised statutory scheme does not discriminate between firefighters and police officers, between cities of over and under 100,000, or between spouses who marry before and after the police officer's or firefighter's retirement.
Branson brought suit in Denver district court, appealing the board's decision under C.R.C.P. 106 and requesting declaratory relief under C.R.C.P. 57. The district court affirmed the board's action, holding that the classification under the statute, which prevents only the widows of retired firefighters in cities of over 100,000 from receiving survivors' benefits, did not violate equal protection because marital status at the time of the firefighter's retirement was a rational basis for determining the beneficiaries of firemen's pension funds. Branson appealed that decision to this court.
Article 30 of title 31 of the Colorado Revised Statutes sets forth the statutory scheme for firemen's and policemen's pensions. The parts of article 30 address separately pensions for policemen in general, policemen in cities of over 100,000, firemen in general and firemen in cities of over 100,000. Except for the statute involved in this case, none of the pension provisions restricts benefits for surviving spouses to those who married before the fireman's or policeman's retirement. See § 31-30-321(1)(c), 12 C.R.S. (1984 Supp.) (policemen in general); § 31-30-407(2) (firemen in general); § 31-30-415(10) (volunteer firemen); § 31-30-608(2) (policemen in cities of over 100,000). The limitation of benefits for widows of retired firemen in cities over 100,000 is the result of a 1945 amendment that also restricted widows' eligibility to those widows whose marriages were "legally performed by a duly authorized person." Ch. 247, sec. 6, § 456H., 1945 Colo. Sess. Laws 698, 703. The second restriction, withholding benefits from common law marriage widows, was held unconstitutional by this court in Carter v. Firemen's Pension Fund, 634 P.2d 410 (Colo. 1981). At issue here is the first restriction, which denies benefits according to the time of marriage rather than the manner of marriage.
Branson acknowledges that the standard by which the statute must be examined to determine whether it deprives the plaintiff of equal protection of the laws is the "rational basis" standard. Carter, 634 P.2d 410; Kistler v. Industrial Commission, 192 Colo. 172, 556 P.2d 895 (1976). The rational basis test is applied in equal protection analysis of statutes that do not create a "suspect classification" or impinge on a fundamental right. Mosgrove v. Town of Federal Heights, 190 Colo. 1, 5, 543 P.2d 715, 718 (1975).
Under the rational basis test a statutory classification will be upheld if the classification is reasonable and if it bears a rational relationship to legitimate state objectives. Austin v. Litvak, 682 P.2d 41, 50 (Colo. 1984); Dawson by and through McKelvey v. P.E.R.A., 664 P.2d 702, 707 (Colo. 1983). Moreover, under rational basis analysis, a statute is presumed to be constitutional and a plaintiff has the burden of proving its invalidity beyond a reasonable doubt. Dawson, 664 P.2d at 708. We conclude that Branson has met the burden established by the rational basis test.
The city has advanced several reasons for the distinctions between policemen and firemen (the hazards of firefighting are different from those of police work), between cities of less than 100,000 and cities of over 100,000 (the hazards of firefighting are different in rural areas), and between widows who marry firefighters before and after they retire (widows who marry firefighters before they retire share the daily hazards of their active duty). None of these proposed reasons supports the classification at issue in this case because they do not explain the distinction drawn by the legislature. For instance, the statute does not affect all widows of retired firemen and policemen in cities of over 100,000 whose marriage occurred after retirement nor does it affect all widows of firemen who married after the firemen retired regardless of the size of the city providing the retirement benefits.
The legitimate governmental goal that the city has proposed to justify the classification scheme is a legislative effort to promote fiscal certainty. The city suggests that the legislature might have been concerned with the financial stability of firemen's pension funds in cities of over 100,000, and thus limited pension benefits for widows to those whose interest would vest at the firemen's retirement because they were already married to the firemen. Although the suggested legislative preoccupation with the fiscal viability of firemen's pension funds in cities of over 100,000 to the exclusion of other firemen's and policemen's pension funds may seem unwise to us, our role is not to second-guess the legislature, but only to determine whether the statutory classification bears a rational relationship to any legitimate legislative goal.
We conclude that the statutory scheme does not serve the legislative goal of fiscal certainty in a rational way. The statute excludes a surviving widow who married a fireman after he retired, but does not exclude surviving dependent children who were born after the fireman's retirement, § 31-30-510, 12 C.R.S. (1984 Supp.), thus destroying the "fiscal certainty" that the city suggests the legislature meant to achieve. Further, a spouse whose rights were vested might die, and the fireman might remarry, but the new spouse would not receive the benefit of the fireman's vested right to a pension for his surviving spouse. Therefore, the statute does not provide fiscal certainty by excluding benefits for dependents of firemen whose relationship to the firemen arose after the firemen retired.
We can find no rational basis for a benefit scheme that refuses benefits only to widows of retired firemen in cities of over 100,000 who married firemen after they applied for retirement. See Carter, 634 P.2d at 413. The statutory scheme arbitrarily deprives these widows of equal protection of the laws, and therefore violates the guarantees of the fourteenth amendment of the United States Constitution and section 25 of article II of the Colorado Constitution. We hold that the restriction in section 31-30-509 defining a surviving widow as one "whom such officer, member, or employee married previous to his application for retirement or previous to April 5, 1945" is unconstitutional beyond a reasonable doubt and may not be applied.
We have interpreted section 25 of article II of the state constitution upon occasion to provide greater protection than the equivalent provisions of the federal constitution. See City County of Denver v. Nielson, 194 Colo. 407, 572 P.2d 484 (1977); see also Millis v. Board of County Commissioners, 626 P.2d 652 (Colo. 1981). In the present case, we hold that both the federal and state constitutions forbid the invidious classification made by section 31-30-509.
Because of our conclusion that the statute is unconstitutional, we need not address Branson's claim that the district court erroneously dismissed a portion of her declaratory judgment action as barred by the statute of limitations.
Judgment reversed and cause remanded.
JUSTICE ROVIRA dissents.
JUSTICE ERICKSON and JUSTICE KIRSHBAUM join in the dissent.