BILLIE MICHELLE ROSE V ROBERT JOHN STOKELY
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
August 28, 2003
9:10 a.m.
BILLIE MICHELLE ROSE,
Plaintiff,
and
COUNTY OF CALHOUN,
No. 241029
Calhoun Circuit Court
Family Division
LC No. 00-001802-DP
Appellant,
v
ROBERT JOHN STOKELY,
Defendant-Appellee.
Updated Copy
October 24, 2003
Before: Whitbeck, C.J., and Griffin, Neff, White, Markey, Meter, and Cooper, JJ.
GRIFFIN, J. (dissenting).
I respectfully dissent. For the reasons stated in Rose v Stokely, 253 Mich App 236, 245254; 655 NW2d 770 (2002), vacated in part 253 Mich App 801 (2002), I would hold that the
Paternity Act's confinement cost allocation provisions, MCL 722.712(1) and MCL 722.717(2),
constitute a sex-based classification that under a "heightened scrutiny" analysis violates the equal
protection guarantees of the United States Constitution, US Const, Am XIV, and the Michigan
Constitution, Const 1963, art 1, ยง 2.
For the benefit of the bench and bar, I incorporate the following portion of Judge
Smolenski's well-written and reasoned opinion in Rose, supra,1 that I would adopt as my own:
Next, we must consider whether the Paternity Act's confinement expense
allocation provision constitutes impermissible gender-based discrimination, in
violation of the Equal Protection Clauses of the Michigan and federal
1
Judges Saad and Kelly joined the unanimous opinion of the Court.
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constitutions. As this Court stated in the case of In re RFF [242 Mich App 188,
205; 617 NW2d 745 (2000)]:
"Equal protection of the law is guaranteed by the federal and state
constitutions. The Michigan and federal Equal Protection Clauses offer similar
protection.
Generally, equal protection requires that persons in similar
circumstances be treated similarly. '[I]t is well established that even if a law treats
groups of people differently, it will not necessarily violate the guarantee of equal
protection.' Neither constitution has been interpreted to require absolute equality.
When legislation is challenged as violative of the equal protection guarantee
under either constitution, it is subjected to judicial scrutiny to determine whether
the goals of the legislation justify the differential treatment it authorizes. The
level of scrutiny applied depends on the type of classification created by the
statute and the nature of the interest affected by the classification." [Citations
omitted.]
"When a party raises a viable equal protection challenge, the court is
required to apply one of three traditional levels of review, depending on the nature
of the alleged classification." Crego v Coleman, 463 Mich 248, 259; 615 NW2d
218 (2000). The most stringent level of review, referred to as "strict scrutiny," is
applied "where the law results in classifications based on 'suspect' factors such as
race, national origin, or ethnicity . . . ." Id., citing Plyler v Doe, 457 US 202, 216217; 102 S Ct 2382; 72 L Ed 2d 786 (1982). An intermediate level of review,
referred to as "heightened scrutiny," is applied where the law results in
classifications based on factors such as illegitimacy and gender. Crego, supra at
260, citing Clark v Jeter, 486 US 456, 461; 108 S Ct 1910; 100 L Ed 2d 465
(1988). The most deferential level of review, referred to as "rational basis," is
applied where the law does not result in classifications based on impermissible
factors. Crego, supra at 259, 261.
A. Classification Based on Gender
In order to resolve defendant's equal protection claim, we must first
determine whether the confinement expense allocation provisions contained in
MCL 722.712(1) and MCL 722.717(2) create a classification based on gender. . . .
[W]e would hold that the statutory language does create a classification based on
gender.
* * *
. . . Subsection 2(1) clearly provides that the father of a child born out of
wedlock is liable for the mother's confinement expenses. The statute does not
make the mother and the father jointly liable for these expenses, and does not
grant a circuit court discretion to allocate those expenses on the basis of the
parties' respective abilities to pay. As in Orr v Orr, 440 US 268, 273; 99 S Ct
1102; 59 L Ed 2d 306 (1979), there is no question that defendant "bears a burden
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he would not bear were he female." By authorizing the imposition of
confinement expenses solely on fathers, but not on mothers, the Paternity Act
provides that different treatment be accorded on the basis of gender; it thus
establishes a classification subject to intermediate scrutiny under the Equal
Protection Clauses of the Michigan and federal constitutions. See id. at 278-279.
B. Intermediate Scrutiny
"There can be no doubt that our Nation has had a long and unfortunate
history of sex discrimination. Traditionally, such discrimination was rationalized
by an attitude of 'romantic paternalism' which, in practical effect, put women, not
on a pedestal, but in a cage." Frontiero v Richardson, 411 US 677, 684; 93 S Ct
1764; 36 L Ed 2d 583 (1973). Legislatively drawn classifications based on
gender are often an "accidental byproduct of a traditional way of thinking about
females that reflected old notions and archaic and overbroad generalizations about
the roles and relative abilities of men and women." Heckler v Mathews, 465 US
728, 745; 104 S Ct 1387; 79 L Ed 2d 646 (1984). This traditional way of thinking
has changed over time, and females are no longer considered to be "destined
solely for the home and the rearing of the family, and only the male for the
marketplace and the world of ideas." Stanton v Stanton, 421 US 7, 14-15; 95 S Ct
1373; 43 L Ed 2d 688 (1975). Because "[l]egislative classifications which
distribute benefits and burdens on the basis of gender carry the inherent risk of
reinforcing the stereotypes about the 'proper place' of women and their need for
special protection," such classifications will be upheld only if they "serve
important governmental objectives and [are] substantially related to achievement
of those objectives." Orr, supra at 279, 283.
Here, the prosecutor argues that the Paternity Act's confinement cost
allocation provision is substantially related to the achievement of an important
governmental objective. Specifically, the prosecutor argues that the statutory
provision was designed to encourage unwed mothers to seek proper medical care.
The prosecutor contends that unwed mothers might forgo needed medical care
unless they are assured that they will not be held liable for the expense of such
care. In essence, we understand the prosecutor's argument to be that the statute
uses gender as a proxy for need, assuming that all unwed mothers are in need of
financial assistance from the father of their child, in order to pay for proper
medical care.
The United States Supreme Court rejected a similar argument in Orr,
supra. In Orr, the Court examined an Alabama statute that authorized state courts
to place an alimony obligation on husbands, but never on wives. Orr, supra at
271. Alabama's intermediate appellate court concluded that the statute was
designed for " 'the wife of a broken marriage who needs financial assistance.' "
Id. at 280. Thus, the stated legislative purpose for the gender-based classification
was to "provide help for needy spouses, using sex as a proxy for need." Id. The
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United States Supreme Court held in Orr that the statute in question violated the
Equal Protection Clause because Alabama's statutory scheme already permitted
"individualized hearings at which the parties' relative financial circumstances are
considered . . . . " Id. at 281. Thus, there was no reason to use gender as a proxy
for need, and this rationale was inadequate to justify the statute's gender-based
classification. Id. at 281-282.
Likewise, under our Paternity Act, circuit courts already conduct
individualized hearings to examine the parties' relative financial circumstances.
Indeed, such hearings must be conducted before a trial court can enter an order of
filiation specifying the unmarried parents' respective child support obligations.
MCL 722.717(2). We recognize that only mothers undergo confinement and
childbirth, while fathers do not. However, it is not true that all mothers, or even
all unwed mothers, are unable to afford costs associated with confinement and
childbirth. Because individualized hearings can determine which unwed mothers
are in need of financial assistance from the father of their child, the statutory
purpose advanced by the prosecutor can be effectuated without placing the burden
of confinement costs solely on fathers. Orr, supra at 281-282.
Defendant argues that the Paternity Act's confinement cost allocation
provision is a lingering vestige of the common-law "necessaries" doctrine, which
required husbands to pay for the necessary medical services received by their
wives. Defendant contends that the Legislature adopted this provision of the
Paternity Act in order to place unmarried women on an equal footing with
married women, regarding payment for the necessary costs of confinement.
While the necessaries doctrine remained in force, the fathers of children borne
[sic] to married women (i.e., their husbands) were automatically liable for the
necessary medical costs incurred during childbirth.
The Paternity Act's
confinement cost allocation provision gave unmarried women the same
advantage, requiring the fathers of their children to be entirely liable for their
necessary medical costs incurred during childbirth.
The common-law necessaries doctrine remained unmodified until just four
short years ago, when our Supreme Court recognized that the doctrine violated
equal protection principles. North Ottawa Community Hosp v Kieft, 457 Mich
394; 578 NW2d 267 (1998). In that case, our Supreme Court abrogated the
common-law necessaries doctrine, stating:
"[T]he common-law necessaries doctrine imposing the support burden
only on a husband could be justified in the past because it was substantially
related to the important governmental objective of providing necessary support to
dependent wives. However, the contemporary reality of women owning property,
working outside the home, and otherwise contributing to their own economic
support calls for the abrogation of this sex-discriminatory doctrine from early
common law." [Id. at 407-408.]
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We agree with defendant that the abrogation of the common-law
necessaries doctrine removed any legitimate basis for the Paternity Act's
allocation of confinement costs on the basis of gender.
The prosecutor's appeal brief can also be read to advance another purpose
for the Paternity Act's gender-based classification. The prosecutor argues that the
[Family Independence Agency] pays the confinement expenses of unwed mothers
who are entitled to state Medicaid benefits, and that the Legislature intended to
permit recoupment of these expenses from the fathers of children born out of
wedlock. This argument relies on a crucial, but mistaken assumption: that the
Paternity Act's confinement expense allocation provision applies only to unwed
mothers receiving government assistance. The Paternity Act is not so limited; the
statute applies to all unwed mothers, regardless of their financial status. Not all
unwed mothers need financial assistance from the father of their child in order to
pay for proper medical care. Many women, wed and unwed, are covered by their
own health care insurance and are otherwise equally able to pay for the birth of
their children.
The prosecutor's argument also implies that relieving fathers of sole
responsibility for confinement costs regarding the birth of illegitimate children
will result in an unintended consequence: unwed mothers receiving state welfare
benefits will be required to repay the FIA for the necessary costs of their
confinement. We stress that the issue before us is not whether the mother of a
child born out of wedlock should or may be required to repay the FIA for her
necessary confinement expenses. The issue before us is whether the father of a
child born out of wedlock may properly be required to shoulder the entire burden
of the mother's confinement expenses. Although we concede that recoupment of
confinement expenses from fathers who have the ability to pay such expenses
constitutes an important governmental objective, this purpose can be achieved by
gender-neutral legislation. [Rose, supra at 245-254 (emphasis in original).]
The lead opinion by Chief Judge Whitbeck correctly concludes that "[t]he objective of
the Paternity Act is, . . . to ensure that minor children born outside a marriage are supported and
educated." Ante at ___. To achieve this end for all financial burdens except confinement
expenses, the act grants the circuit court discretion to apportion the expenses of parenthood
between the father and the mother in a fair and equitable manner for the best interests of the
child. However, in regard to confinement expenses only, the statute affords no discretion in the
interest of the child and instead directs that "[t]he father is liable to pay [one hundred percent of]
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the expenses of the mother's confinement . . . ." MCL 722.712(1). Chief Judge Whitbeck would
hold that this sex-based classification is substantially related to the important governmental
objective of ensuring that a child born out of wedlock receive support. In the words of the lead
opinion: "making the father liable for the necessary confinement expenses assures that under all
circumstances [whether the mother is "needy" or not] the child will receive this essential
support."2 Ante, at ___.
I respectfully disagree. As emphasized by the United States Supreme Court in Orr, supra
at 283, gender-based statutory distinctions often reinforce unfair stereotypes between the sexes
and thus impede the furtherance of equal protection for women:
"Legislative classifications which distribute benefits and burdens on the
basis of gender carry the inherent risk of reinforcing stereotypes about the "proper
place" of women and their need for special protection. Cf. United Jewish
Organizations v. Carey, 430 US 144, 173-174 [97 S Ct 996; 51 L Ed 2d 229 ]
(1977) (opinion concurring in part). Thus, even statutes purportedly designed to
compensate for and ameliorate the effects of past discrimination must be carefully
tailored. Where, as here, the state's compensatory and ameliorative purposes are
as well served by a gender-neutral classification as one that gender classifies and
therefore carries with it the baggage of sexual stereotypes, the State cannot be
permitted to classify on the basis of sex.
Furthermore, as noted by the Michigan Supreme Court in Crego, supra at 258-259,
quoting with approval Avery v Midland Co, Texas, 390 US 474, 484; 88 S Ct 1114; 20 L Ed 2d
2
This appears to be a ruling from a different era. As the Orr Court stated in holding that
Alabama's statutory scheme of imposing alimony obligations on husbands but not on wives
violates the constitutional guarantee to equal protection of the law:
Stanton v. Stanton, 421 U.S. 7, 10 [95 S Ct 1373; 43 L Ed 2d 688 1373]
(1975), held that the "old [notion]" that "generally it is the man's primary
responsibility to provide a home and its essentials," can no longer justify a statute
that discriminates on the basis of gender. "No longer is the female destined solely
for the home and the rearing of the family, and only the male for the marketplace
and the world of ideas," id., at 14-15. [Orr, supra at 279-280.]
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45 (1968), the coextensive equal protection guarantees of the United States and Michigan
constitutions3 prohibit the state from treating persons differently on the basis of "arbitrary or
invidious" distinctions:
The essence of the Equal Protection Clauses is that the government not
treat persons differently on account of certain, largely innate, characteristics that
do not justify disparate treatment. Miller v Johnson, 515 US 900, 919; 115 S Ct
2475; 132 L Ed 2d 762 (1995); El Souri v Dep't of Social Services, 429 Mich 203,
207; 414 NW2d 679 (1987). Conversely, the Equal Protection Clauses do not
prohibit disparate treatment with respect to individuals on account of other,
presumably more genuinely differentiating, characteristics. Puget Sound Power
& Light Co v City of Seattle, 291 US 619; 54 S Ct 542; 78 L Ed 1025 (1934).
Moreover, even where the Equal Protection Clauses are implicated, they do not go
so far as to prohibit the state from distinguishing between persons, but merely
require that "the distinctions that are made not be arbitrary or invidious." Avery v
Midland Co, Texas, 390 US 474, 484; 88 S Ct 1114; 20 L Ed 2d 45 (1968).
Although raised in the context of an argument alleging a violation of due process, amicus
curiae Family Law Section of the State Bar of Michigan argues that the statutory mandate of
liability for confinement expenses is so arbitrary that it is unconstitutional:
MCL 722.712(1) creates an irrebuttable presumption that in all cases the
father is the appropriate parent to pay for all of the mother's confinement
expenses. The due process clause forbids the application of an irrebuttable
presumption that impinges on a fundamental liberty interest, when that
presumption is not necessarily or universally true in fact, and where the state has
reasonable alternative means of making a determination. Vlandis v Kline, 412
U.S. 441, 452 [93 S Ct 2230; 37 L Ed 2d 63] (1973), Stanley v Illinois, 405 U.S.
645 [92 S Ct 1208; 31 L Ed 2d 551] (1972).
It is not necessarily or universally true that fathers are more financially
able than mothers to pay for confinement expenses. The state has a reasonable
alternative means of making a determination of apportionment of confinement
expenses. The policy of the State of Michigan, as evidenced by the Michigan
Child Support Formula, is that both parents should share the costs of raising their
children in accordance with their relative earnings. The information necessary to
apportion confinement expenses is available to the court when it calculates child
support during proceedings under the Paternity Act. A system that irrebuttably
presumes that fathers have the greater ability to pay the mother's confinement
expenses violates the due process clauses of the state and Federal Constitutions.
3
Harvey v Michigan, 469 Mich 1; 664 NW2d 767 (2003).
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In the present case, the parties have not raised or preserved an issue alleging violation of
due process. Nevertheless, the arbitrariness of the sex-based classification is relevant in
determining whether the statute passes constitutional muster under a heightened scrutiny, equal
protection analysis. Crego, supra; Avery, supra.
In my view, the interest of the child in obtaining necessary support is not substantially
furthered by the arbitrary and inflexible rule of liability for confinement expenses based solely
on a parent's sex. As with other parenthood expenses, a fair and equitable apportionment
between the father and the mother in the best interests of the child is the standard that
substantially furthers the governmental objective at issue. The arbitrary mandate based solely on
a parent's sex is not substantially related to an important governmental objective. Orr, supra.
Because the statutory sex-based classification fails to withstand the intermediate scrutiny
required under our federal and state guarantees of equal protection under the law, I would hold
MCL 722.712(1) and MCL 722.717(2) to be unconstitutional in regard to the parental financial
responsibility for confinement expenses. I would affirm the fair and equitable apportionment of
the confinement expenses ordered by the trial court.
Meter and Cooper, JJ., concurred with Griffin, J.
/s/ Richard Allen Griffin
/s/ Patrick M. Meter
/s/ Jessica R. Cooper
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