Opinion
44039 Record No. 800066.
November 26, 1980
Present: All the Justices.
Retroactive special law changing evidential rule as to burden of proof of occupational nature of disease with respect to State Police Officers for Workmen's Compensation unconstitutional as violating Virginia Constitution, Art. 11, Sec. 14, Para. 3; Department of State Police and insurer have standing to raise constitutional issue; other constitutional and standing issues.
(1) Workmen's Compensation — Constitutional Law — Laws Granting Special Benefits to Some to the Exclusion of Others Similarly Situated (Va. Constitution, Art. II, Sec. 14 Para. 18) — Violated by Amendment Applying Presumption of Occupational Disease Under Code Sec. 65.1-47.1 Retroactively to 1 January 1974 only for State Police Officers.
(2) Workmen's Compensation — Constitutional Law — Standing to Challenge — Appellants, Being Strangers to Victims of Discrimination under Virginia Constitution, Art. IV, Sec. 14 Para. 18, Have No Standing to Challenge Unconstitutionality of Retroactive Statute Violating Para. 18 of Sec. 14 of Art. IV.
(3) Workmen's Compensation — Constitutional Law — Special Laws Changing Evidential Rules (Va. Constitution, Art. IV, Sec. 14, Para. 3) — Retroactive Amendment Applying Presumption of Occupational Disease under Code Sec. 65.1-47.1 Shifts Evidentiary Burden and is Unconstitutional as Applied.
(4) Workmen's Compensation — Constitutional Law — Standing to Challenge — Department of State Police and Insurer Have Standing to Challenge Retroactive Statute Violating Virginia Constitution, Art. IV, Sec. 14, Para. 3 — Denying Standing Would Violate Doctrine of Separation of Powers.
On 5 June 1974, the claimant, a State Trooper, had a heart attack while off duty. The Department of State Police (employer) paid him sick leave at full salary until his entitlement expired and then placed him on disability retirement. Effective prospectively from 1 July 1976, Code Sec. 65.1-47.1, enacted in 1976, created a rebuttable presumption that hypertension or heart disease was an occupational disease covered by the Workmen's Compensation Act. But the 1976 Act did not include members of the State Police officers' Retirement System.
By an amendment to Code Sec. 65.1-47.1 effective 1 July 1977 members of the State Police officers Retirement System were included in the section and the presumption as to them was made applicable to those whose death or condition of impairment of health occurred on or after 1 January 1974. (Acts 1977 c. 620 p. 1206)
The claimant applied for compensation on 1 March 1978 but a Deputy Commissioner denied the application on the ground it was time barred under Code Sec. 65.1-52, having been filed more than two years after the claimant became disabled. The Commission with one dissent, ruled that the 1977 amendment applying the presumption of occupational disease to State Police Officers as of 1 July 1974 was constitutional; applied the presumption to the claimant; treated his claim as not time barred, running the time from 1 July 1977 (the effective date of the 1977 Act) and awarded him compensation. The Commonwealth, the Department of State Police and the Insurer challenge the constitutionality of the 1977 Act.
1. Virginia Constitution, Art. IV, Sec. 14, Para. 18 forbids enactment of any law granting special benefits to some to the exclusion of others similarly situated. The effect of the retroactive provision of the 1977 Act was to grant a benefit to State Police Officers to the exclusion of all other Virginia policemen by relating back the presumption as to State Police Officers to 1 January 1974. Nothing in the record suffices to justify such disparate treatment of members of the same general class. The retroactive clause is clearly a special law.
2. The person questioning the constitutionality of a legislative enactment must show clearly that in its operation he has been injured. The fact that it may contravene the Constitution in its application to others avails him nothing. The appellants, being strangers to the victims (the local policemen who suffered heart attacks or hypertension between 1 January 1974 and 1 July 1976) have no standing to invoke the proscription of Virginia constitution, Art. IV, Sec. 14, Para. 18.
3. Virginia Constitution, Art. IV, Sec. 14, Para. 3, prohibits the General Assembly from enacting a special law changing the rules of evidence in any judicial proceedings. Since the retroactive provision of the 1977 Act is special, and the presumption activated by the retroactive clause changes the evidentiary rule by shifting the evidentiary burden from the claimant-plaintiff to the employer-insurer-defendants, the retroactive clause as here applied violates Art. IV, Sec. 14, Para. 3.
4. The Department of State Police and its insurer, injured by the evidential change in the special law, have standing to challenge its validity. The Department is an arm of one of three co-equal branches of the State government and to hold that it could not defend itself in the courts by asserting a special laws challenge to an act of the legislature would violate the doctrine of separation of powers (Virginia Constitution, Art. 111, Sec. 1) and impair the function of Virginia's system of checks and balances. R. F. P. Co. v. City of Richmond, 145 Va. 225, 133 S.E. 800 (1926) distinguished.
(Footnote 1 by the court states that its holding applies only to claims based upon disabilities occurring prior to 1 July 1976 because the 1976 Act, in omitting State Police Officers, was constitutionally defective. The 1977 Act cured that constitutional defect. The Court states such curative acts are not special laws and thus, in this application, the retroactive clause is constitutional.)
Appeal from an award of the Industrial Commission of Virginia.
Reversed and final judgment.
John M. Oakey, Jr., for appellant.
John A. Gibney, Jr. (Mary Sue Terry; Richard D. Rogers, Jr.; Bell, Lacy Baliles; Terry Rogers on brief) for appellee.
The defendants, the Commonwealth of Virginia, Department of State Police (the employer), and Royal-Globe Insurance Company (the insurer), appeal from an Industrial Commission award granting Morgan Birchfieid Hines' claim for compensation for temporary total disability resulting from a heart attack.
On June 5, 1974, Hines, a state trooper with 23 years' service, suffered a heart attack while off duty. The employer paid him sick leave at full salary until his entitlement expired September 1, 1975 and then placed him on disability retirement status.
The following year, the General Assembly enacted Code Sec. 65.1-47.1. Acts 1976, c. 772. This statute, effective prospectively from July 1, 1970, created a rebuttable presumption that hypertension or heart disease suffered by firemen and policemen was an occupational disease covered by the Workmen's Compensation Act. The 1976 act did not include members of the State Police Officers Retirement System. By Acts 1977, c. 620, effective July 1, 1977, the benefit of the presumption was extended to state police officers. In addition, the amendment provided that the presumption would apply to state police officers "whose death or condition or impairment of health occurred on or after January [1, 1974]."
On March 1, 1978, Hines applied for compensation. A Deputy Commissioner denied the application on the ground that the claim, filed more than two years after Hines became disabled, was time-barred under Code Sec. 65.1-52. On review, the Commission, with one Commissioner dissenting, ruled that the 1977 amendment making the presumption applicable to disability suffered after January 1, 1974 was constitutional and that Hines, whose disability occurred June 5, 1974, was entitled to the benefit of that presumption. Treating "the effective date of the [1977 act] . . . as the date of communication of this disease", the Commission held that Hines' claim had been "timely filed" and awarded him compensation "at the rate of $168.31 per week for temporary total disability, commencing July 1, 1977, and continuing [500 weeks]" and "[m]edical benefits . . . as long as necessary."
Appealing from the award entered December 13, 1979, the defendants challenge the constitutionality of that clause in the 1977 act which provides for retroactive application of the presumption defined in the 1976 act (hereinafter, the retroactive clause). Specifically, they contend that the retroactive clause violates Va. Const., art. IV, Sec. 14, which provides in pertinent part:
"The General Assembly shall not enact any local, special, or private law in the following cases: . . . .
"(3) Regulating the practice in, or the jurisdiction of, or changing the rules of evidence in any judicial proceedings or inquiry before the courts or other tribunals. . . .
". . . .
"(18) Granting to any private corporation, association, or individual any special or exclusive right, privilege, or immunity."
Paragraph (18) forbids enactment of any law granting special benefits to some to the exclusion of others similarly situated. The effect of the retroactive clause was to grant a benefit to certain state police officers to the exclusion of all other Virginia policemen. Since there is nothing of record sufficient to justify such disparate legislative treatment of members of the same general class, the retroactive clause is clearly a special law.
But, Hines argues, since local policemen who suffered a heart attack or hypertension between January 1, 1974 and July 1, 1976 are the only victims of the legislative discrimination, the defendants, both strangers to the victims, have no standing to invoke the proscription of paragraph (18). We must agree. "[T]he person questioning the constitutionality of a legislative enactment must clearly show that in its operation he has been injured thereby. The fact that it may contravene the constitution in its application to . . . others . . . avails him nothing." Avery v. Beale, 195 Va. 690, 706, 80 S.E.2d 584, 593 (1954).
We consider now whether the retroactive clause, as applied in this case, offends paragraph (3).
The constitution commands that "[t]he General Assembly shall not enact any . . . special . . . law . . . changing the rules of evidence in any judicial proceedings". This command does not apply to all laws changing evidentiary rules, but only to such laws as are also special. The parties agree that the presumption activated by the retroactive clause changes the evidentiary rule by shifting the evidentiary burden from the claimant-plaintiff to the employer-insurer-defendants. See Page v. City of Richmond, 218 Va. 844, 847, 241 S.E.2d 775, 777 (1978). And, as we have said, since the retroactive clause grants a benefit to some claimants to the exclusion of others similarly situated, it is a special law.
We hold, therefore, that the retroactive clause as applied in this case violates paragraph (3) of Article IV, Sec. 14, of the Virginia Constitution.
Our holding applies only to claims based upon disability which occurred prior to July 1, 1976, the effective date of the 1976 act. To the extent that act omitted state police officers from the class granted the benefit of the presumption, it was constitutionally defective. Insofar as the 1977 act corrected the omission and filled the class retroactive to the date it was created, it cured the constitutional defect. We are of opinion that such curative statutes are not special laws within the meaning of the Virginia Constitution. Hence, the retroactive clause is constitutional as applied to claims based upon disability occurring after July 1, 1976.
Even so, Hines contends that "[a]s a creation of the legislature, the Department has no right to challenge the validity of legislative actions" and that the insurer has no greater right than its insured. Hines relies on R. F. P. Co. v. City of Richmond, 145 Va. 225, 133 S.E. 800 (1926), where this Court held that a municipal corporation had no standing to raise a constitutional challenge to a statute which required cities to share the cost of constructing street-railway crossings. The city based its challenge on Section 1 of the Virginia Constitution of 1902 (now Article I, Sec. 1) which provided that "all men are by nature equally free and independent and have certain inherent rights". That decision was grounded on the Court's conclusion that a municipality, as a creation of the legislature subject to extinction by the legislature, was not a "man" within the contemplation of Section 1 and, therefore, had no standing to challenge the legislative act. Id., 145 Va. at 238, 133 S.E. at 803-04.
Hines reads this holding to bar every legislatively-created body from asserting any constitutional challenge to any legislative act, regardless of the nature of that challenge. Such a reading is too broad. The Department claims no Article I, Sec. 1, rights; its challenge is bottomed upon the special laws proscription in Article IV, Sec. 14. Hence, the rule in R. F. P. Co. is wholly inapposite here.
In a case post-dating R. F. P. Co., we have entertained a special laws challenge raised by a legislatively-created body. Leesburg v. Loudoun Co. Sch. Bd., 181 Va. 279, 24 S.E.2d 439 (1943).
Furthermore, as noted by the Court in that case, a city is a political subdivision of the State. As such, it is a component part of the sovereign. Manifestly, the sovereign cannot claim the benefit of the invalidity of its own act. But the Department is not a political subdivision of the State; it is an arm of one of the three co-equal branches of the State government. If we were to hold, as Hines urges, that an executive agency has no standing to defend itself in the courts by asserting a special laws challenge to an act of the legislature, we would violate the constitutional doctrine of separation of powers, Va. Const., art. III, Sec. 1, and impair the function of Virginia's system of checks and balances. We decline to do so. Rather, we hold that the Department and the insurer, the litigants injured by application of the special law changing the rule of evidence, have proper standing to challenge its validity.
We reserve decision whether an executive agency has standing to make such a challenge offensively.
Accordingly, we will reverse the Commission's award, dismiss the claim, and enter final judgment here for the defendants.
Reversed and final judgment.