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Docket Number

Docket No. 51683.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert C. Engels, Prosecuting Attorney, and Thomas C. Nelson, Assistant Attorney General, for the people. Stiles, Fowler Tuttle, for defendant on appeal.

Judges

Mark J. Cavanagh

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Smart Summary

People v. Lewis, Michigan Court of Appeals (Dec. 17, 1981) — Summary

Factual and Procedural Background

Defendant was convicted in a non-jury trial of felony-nonsupport under MCL 750.165; MSA 28.362. He was sentenced to five years' probation, the first six months to be served in the county jail, fined $100, assessed costs of $500, and ordered to pay $200 per month in restitution. Defendant appealed as of right. The statutory provision at issue, quoted in the opinion, criminalizes refusal or neglect by a "husband" or "father" to pay amounts ordered for the support of a wife, former wife, or minor children, and contains language that makes commission of the offense contingent upon the husband or father leaving the state of Michigan.

Legal Issues Presented

Whether the statute's explicit gender-based classification (applying only to "husbands" and "fathers") violates the Equal Protection Clause of the Fourteenth Amendment and the comparable provision of the Michigan Constitution.
Whether the statute impermissibly burdens the constitutional right to travel by penalizing individuals who leave the state in order to avoid support obligations.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Orr v Orr, 440 U.S. 268, 279; 99 S Ct 1102; 59 L Ed 2d 306 (1979)	Gender-based classifications must serve important governmental objectives and be substantially related to achievement of those objectives (Equal Protection analysis for sex-based classifications).	The court applied Orr to conclude that the statute's gender-based classification is invalid under equal protection because its purposes would be served equally or better by a gender-neutral statute.
Cotton v Municipal Court of the San Diego Judicial Dist, 59 Cal.App.3d 601; 130 Cal.Rptr. 876 (1976)	California decision striking down nonsupport statute; applied strict scrutiny, treating sex as a suspect class and parental support liberty interests as fundamental.	The court reviewed Cotton but noted California's strict-scrutiny approach is not analogous because Michigan courts had not adopted that position; the court observed Cotton's view that a gender-free statute would better serve the statute's purposes.
In re Aguilar, 80 Cal.App.3d 58; 145 Cal.Rptr. 197 (1978)	Another California decision addressing similar nonsupport statutes.	Referenced as part of California authorities invalidating gender-based nonsupport statutes; used for comparative purposes, not as controlling authority for Michigan.
People v McDonald, 409 Mich. 110, 123; 293 N.W.2d 588 (1980)	Michigan decisions declining to adopt treating sex as a suspect classification or parental-support liberty interests as fundamental rights.	The court noted Michigan has not adopted the positions used by California, making California's strict-scrutiny analysis not analogous to Michigan's analysis.
People v McDonald, 67 Mich. App. 64, 71; 240 N.W.2d 268 (1976)	State appellate precedent related to equal protection and related doctrinal positions in Michigan.	Used to show that Michigan courts have not adopted the strict-scrutiny approach to sex classifications referred to in California decisions.
People v Elliott, 186 Colo. 65; 525 P.2d 457 (1974)	Colorado Supreme Court applied rational basis review and upheld its nonsupport statute; asserted father's primary responsibility for support.	The court explained that Elliott's rationale is no longer viable after Orr, which rejected stereotypes about paternal primary responsibility.
State v Fuller, 377 So.2d 335 (La, 1979)	Louisiana Supreme Court invalidated the criminal abandonment statute and relied on Orr's rationale.	The court approved Fuller's approach and applied similar analysis to invalidate the Michigan statute as nonseverable and constitutionally invalid.
State v Barton, 315 So.2d 289 (La, 1975)	Prior Louisiana authority overruled by Fuller.	Referenced to note that Fuller overruled Barton and relied on Orr.
Memorial Hospital v Maricopa County, 415 U.S. 250, 258; 94 S Ct 1076; 39 L Ed 2d 306 (1974)	Classifications based on the exercise of the right to travel require a compelling state interest; the right to travel receives constitutional protection.	Invoked in discussing defendant's claim that the statute penalizes interstate travel; court noted such classifications are justified only by a compelling interest and must be narrowly tailored.
In re King, 3 Cal.3d 226; 90 Cal.Rptr. 15; 474 P.2d 983 (1970)	California decision finding nonsupport statutes may impermissibly burden the right to travel.	Used as authority for the proposition that nonsupport statutes have been held to infringe the right to travel unnecessarily.
Helms v Jones, 621 F.2d 211 (CA 5, 1980)	Fifth Circuit authority addressing nonsupport statutes and travel-related equal protection concerns.	Referenced as an example of similar holdings that nonsupport statutes can impermissibly burden the right to travel.

Court's Reasoning and Analysis

The court began by examining the plain language of the statute, which expressly applies to "husbands" and "fathers." Because the statute's language is unambiguous, the court declined to reinterpret it to reach both sexes. The statute therefore creates an explicit gender-based classification.

Applying the principle from Orr v Orr, the court held that gender-based classifications must serve important governmental objectives and be substantially related to those objectives. The court concluded that any valid purposes of the statute would be equally or better served by a gender-neutral statute, and that making the statute gender-neutral would impose no special burden on the State and would not frustrate the statute's objectives. Based on this analysis and Orr, the court found the statute invalid as a violation of equal protection under the federal and Michigan constitutions.

The court reviewed decisions from other jurisdictions. It distinguished California authorities (which applied strict scrutiny) on the ground that Michigan has not adopted the same doctrinal positions. It rejected Colorado's rational-basis approach as inconsistent with Orr, and agreed with the Louisiana Supreme Court's invalidation in Fuller which relied on Orr. The court concluded that the gender-based classification could not be severed from the rest of the statute and therefore the statute as a whole was constitutionally invalid.

Regarding defendant's separate claim that the statute unconstitutionally infringes the right to travel (because it punishes persons who leave the state), the court observed that a classification based on the exercise of interstate travel can be justified only by a compelling state interest (citing Memorial Hospital v Maricopa County) and that similar nonsupport statutes have been held to unduly burden the right to travel. However, because the court found the statute invalid on equal protection grounds, it expressly declined to decide the travel issue, noting only that any statute penalizing travel must be carefully tailored to avoid unnecessary infringement.

Holding and Implications

REVERSED.

Holding: The court reversed the conviction, concluding that the statute's explicit gender-based classification renders it constitutionally invalid under the Equal Protection Clause of the Fourteenth Amendment and the comparable provision of the Michigan Constitution. The court found the classification nonseverable and therefore invalidated the statute as written.

Implications: The direct effect is reversal of defendant's conviction. The court stated that a gender-neutral statute would better serve the statute's purposes, and, while it discussed right-to-travel concerns, it did not resolve that issue in light of its equal protection ruling. The opinion does not purport to establish a new standard beyond applying Orr v Orr to invalidate the gender-based provision at issue.

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PEOPLE v LEWIS

M.F. CAVANAGH, J.

Defendant was convicted in a trial without a jury of felony-nonsupport in violation of MCL 750.165; MSA 28.362. He was sentenced to five years probation with the first six months to be served in the county jail, fined $100, assessed costs of $500, and ordered to pay $200 a month restitution. He appeals as of right.

The statute under which defendant was charged states, in pertinent part:

"Where in any decree of divorce, or decree of separate maintenance granted in this state, or by order entered during the pendency of any such proceedings, if personal service is had upon the husband or upon the father of any minor child or children, under the age of 17 years, or such husband or father shall have entered an appearance in such proceedings either as plaintiff or defendant, the court shall order such husband to pay any amount to the clerk or friend of the court for the support of any wife or former wife who by reason of any physical or mental affliction is unable to support herself, or father to pay any amount to the clerk or the friend of the court for the support of such minor child or children, and said husband or father shall refuse or neglect to pay such amount at the time stated in such order and shall leave the state of Michigan, said husband or father shall be guilty of a felony * * *." (Emphasis added.)

Although this Court must construe statutes to avoid constitutional questions, the plain and unambiguous language of this provision prevents us from interpreting the statute to apply to both men and women. The statute clearly applies only to "husbands" and "fathers". Wives and mothers subject to court orders to make child and spousal support payments and, therefore, similarly situated are not subject to the statute. This is an explicit gender-based classification. To withstand scrutiny under the Equal Protection Clause, this classification by gender must serve important governmental objectives and must be related substantially to the achievement of those objectives. Orr v Orr, 440 U.S. 268, 279; 99 S Ct 1102; 59 L Ed 2d 306 (1979).

Any valid purposes served by this statute would be served equally or better by a gender-neutral statute. The fact that most persons subject to court orders to make child and spousal support payments are men is of no consequence, since each person charged under the criminal statute receives an individual hearing on the merits. A gender-neutral statute containing the same provisions would impose no special burden on the state nor would it frustrate the achievement of the objectives which underlie the present gender-based statute. The decision of the United States Supreme Court in Orr, supra, compels the conclusion that the statute is invalid as a violation of defendant's right to equal protection of the laws under both the federal and state constitutions. US Const, Am XIV, Const 1963, art 1, § 2.

We have reviewed the opinions of courts in other jurisdictions considering similar criminal nonsupport laws. California's nonsupport law was struck down in Cotton v Municipal Court of the San Diego Judicial Dist, 59 Cal.App.3d 601; 130 Cal.Rptr. 876 (1976). See also In re Aguilar, 80 Cal.App.3d 58; 145 Cal.Rptr. 197 (1978). That court, however, applied the strict scrutiny test, requiring the state to show a compelling state interest for the discriminatory classification. The court held that, for purposes of equal protection analysis, sex was a suspect class and liberty interests were fundamental rights. The courts of this state have adopted neither position. People v McDonald, 409 Mich. 110, 123; 293 N.W.2d 588 (1980), People v McDonald, 67 Mich. App. 64, 71; 240 N.W.2d 268 (1976). The California court's analysis therefore is not analogous to that which we have undertaken above. The Cotton court did note, however, that a gender-free statute would serve better the purposes underlying the nonsupport statute.

In People v Elliott, 186 Colo. 65; 525 P.2d 457 (1974), the Colorado Supreme Court rejected an attack on that state's criminal nonsupport statute. In doing so, the Court applied the rational basis test in its equal protection analysis and stated that the parental duty of support was still the primary responsibility of the father. The Court also held that the classification was not a gender-based one because it did not apply to all men. The analysis adopted by the Colorado Court can no longer be considered viable in light of the Supreme Court's decision in Orr, supra, where the Court clearly rejected the use of gender-based classifications which carry the baggage of sexual stereotypes. The Supreme Court in Orr held that the expectation that the father primarily is responsible for the support of children is such a stereotype.

In State v Fuller, 377 So.2d 335 (La, 1979), the Louisiana Supreme Court overruled its prior decision in State v Barton, 315 So.2d 289 (La, 1975), and invalidated that state's criminal abandonment statute. In doing so, the Court specifically relied on the decision and rationale in Orr, supra. The Court first rejected the argument that the classification recognized the realities of domestic relations as they presently existed in the state. The same argument had been rejected in Orr. The Court found that a gender-free statute would serve equally or better the purposes underlying the statute as written.

It is our view that the Louisiana Court, having the benefit of the Supreme Court's decision in Orr, correctly decided Fuller, supra. We have applied the same analysis here. The gender-based classification contained in the statute here in question cannot be severed from the remainder of the statute and it thus renders the statute constitutionally invalid.

Defendant also claims that the statute is an unconstitutional infringement upon his right to travel. Men who neglect or refuse to make child support payments are punished by the statute only if they exercise their right to travel from state to state. A classification is contained in the statute which is based upon the exercise of the right to travel between states. Such a classification can be justified only by a compelling state interest. Memorial Hospital v Maricopa County, 415 U.S. 250, 258; 94 S Ct 1076; 39 L Ed 2d 306 (1974). Similar nonsupport statutes have been held to infringe unnecessarily upon the right to travel. In re King, 3 Cal.3d 226; 90 Cal.Rptr. 15; 474 P.2d 983 (1970), Helms v Jones, 621 F.2d 211 (CA 5, 1980). Even a compelling state interest may be served only by means which do not burden unnecessarily the exercise of the right to travel. Without deciding the issue of the right to travel raised by defendant in light of the statute's invalidity on other grounds, we note that a statute penalizing the exercise of the right to travel may be justified only by a compelling state interest and must be tailored carefully to avoid unnecessary infringement upon the right.

Reversed.

PEOPLE v. LEWIS