IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of the Marriage of

DENNIS JAMES CROCKER,

          Petitioner on review,

      and

MARIANNE ELLEN CROCKER,

          Respondent on review. 		)
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Multnomah County Circuit Court
No. 8706-64201

SC S46166
CA A99888
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BRIEF ON THE MERITS OF PETITIONER ON REVIEW
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Review of the decision of the Court of Appeals (157 Or App 651, 971 P2d 469)
on appeal from a judgment of the Circuit Court for Multnomah County,
Honorable Paula J. Kurshner, Judge
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Date of Court of Appeals decision: December 16, 1998
Author of opinion: ARMSTRONG, J.
Concurring judges: Warren, P.J., and Edmonds, J.
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Review Allowed: April 13, 1999 (328 Or 418)
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Attorneys for Respondent on Review:

GREGORY B. SORIANO    # 73285
BARRY L. ADAMSON       # 79008
Soriano & Associates
9900 S.W. Wilshire, Suite 100
Portland, Oregon 97225
(503) 243-5385

 		Attorney for Petitioner on Review:

LAWRENCE D. GORIN    # 73109
Attorney at Law
621 S.W. Morrison St., Suite 350
Portland, Oregon 97205
(503) 224-8884
Attorneys for Amicus Curiae:

HARDY MYERS    # 64077
    Attorney General
MICHAEL D. REYNOLDS    # 74269
    Solicitor General
DAVID SCHUMAN    # 84344
    Deputy Attorney General
400 Justice Building
Salem, Oregon 97310
(503) 378-6002 		Attorneys for Amicus Curiae:

PHILLIP F. SCHUSTER, II    # 72231
Dierking & Schuster
1500 N.E. Irving, Suite 540
Portland, Oregon 97232
(503) 231-7765

 

BRIEF ON THE MERITS OF PETITIONER ON REVIEW

Question on Review

Does ORS 107.108---the Oregon statute that allows the state to impose compulsory support obligations on divorced, separated and never-married parents of adults between ages 18 and 21 who are attending college, while leaving married parents who reside together completely immune from its purview---violate the equal privileges and immunities clause of Article I, section 20, of the Oregon Constitution and the equal protection clause of the Fourteenth Amendment to the United States Constitution?
Petitioner on review (hereafter father) answers in the affirmative and asks this court to declare the statute unconstitutional.

Rule of Law that Petitioner Proposes

By allowing the state to compel divorced, separated and never-married parents of 18 to 21 year old adults to provide for their financial support, contingent on school or college attendance between ages 18 and 21, while leaving married parents who reside together immune from the same liability, irrespective the financial need of the individual 18 to 21 year old adult, ORS 107.108 creates an irrational class distinction that violates the equal privileges and immunities clause of Article I, section 20, of the Oregon Constitution and the equal protection clause of the Fourteenth Amendment to the United States Constitution. ORS 107.108 is therefore unconstitutional.

Nature of the Action; Proceedings in the Trial Court

This is a marital dissolution proceeding involving a post-judgment modification motion.
In the trial court, mother filed a motion based on ORS 107.108 seeking to modify the dissolution judgment so as to compel father to pay an increased amount of money for the support of the parties’ adult offspring who were attending college. The trial court declared ORS 107.108 unconstitutional and, in consequence, dismissed mother’s motion to modify.

Statement of Facts

The facts of the case material to this review are correctly stated in the opinion of the Court of Appeals, 157 Or App 651, 653-654, 971 P2d 469.
In sum, the parties were divorced in 1987. Custody of the parties’ three daughters was granted to mother. Father was ordered to pay child support. In 1997, mother moved to modify the dissolution judgment to compel father to pay additional money for the benefit of the two older daughters, both of whom had attained age 18. The adult daughters no longer qualified for child support under ORS 107.105(1)(c). However, both were attending college and met the qualifications for support as a "child attending school" as defined in ORS 107.108. Father moved to dismiss, arguing that ORS 107.108 violates the equal protection clauses of the state and federal constitutions by imposing support obligations on divorced and separated parents that are not on like terms applicable to married parents.
The trial court agreed with father and declared ORS 107.108 unconstitutional, thereby dismissing mother’s modification motion. Mother appealed. The Court of Appeals reversed. Crocker and Crocker, 157 Or App 651, 971 P2d 469 (1998) Father petitioned for Supreme Court review and review was allowed on April 13, 1999. (328 Or 418.)

Summary of Argument

ORS 107.108 1. authorizes courts to compel divorced, separated or never-married parents to pay money for the support of their adult offspring between ages 18 and 21 who are attending college and who presumably are in need of parental assistance in order to do so. By its own terms, however, the statute does not apply to parents of adults between ages 18 and 21, attending college and also having need for parental assistance, if the young adult’s parents are married and residing together.
By excluding married parents from its purview, ORS 107.108 effectively grants to married persons a legal immunity that is not on like terms granted to parents who are divorced, separated or never-married.
Likewise, by granting to certain young adults the right to legally compel their parents to pay support and not conferring that right on others similarly situated, ORS 107.108 creates a privilege for one class of citizens---18 to 21 year old adults who are attending college and who need parental assistance in order to do so and whose parents are divorced, separated or never-married---that is not granted to 18 to 21 year old adults in like circumstances but whose parents are married and residing together.
The classification arrangement inherent to ORS 107.108, hinged on the marital status of the parent, is not rationally related to the state interest that the statute purports to advance. Consequently, ORS 107.108 violates the equal privileges and immunities provision of the Oregon constitution as well as the equal protection clause of the United States constitution.

Argument

Introduction

Under Oregon law, a person ceases to be a child at age 18. From that age forward, a person is deemed to be an adult and has all of the rights and liabilities of a "citizen of full age." ORS 109.510.
Rights of adulthood include the right to decide where and with whom one lives; control of one’s own earnings and property; and whether, when, and where to pursue higher education; all without parental say or control. Liabilities of adulthood include the responsibility to be financially self-supporting.
While children, i.e., citizens not yet age 18, have the right to be supported by parents, regardless of the parents’ marital status, adults do not. That is a fundamental difference between being a child and being an adult. Financial responsibility for one’s self is one of the "liabilities of a citizen of full age." 2.
The decision of an 18 to 21 year old adult to go to college should not relieve that person of the financial liability inherent to being a citizen of full age. It is generally recognized and accepted that adults do not and should not have the right to invoke the power of the state to compel other adults, such as their parents, to financially support the lifestyle, occupational or educational choices that they independently decide to make, and to which they are entitled to make without parental say or control precisely because they are adults.
ORS 107.108 creates an exception to the general rule of self-responsibility as an element of adulthood by authorizing courts to compel parents to pay money for the support of their adult offspring who meet the definition of "child attending school." However, the exercise of state authority is not applicable to all parents of all 18 to 21 year old adults who choose to attend college. By its own terms, the rights and liabilities established by ORS 107.108 apply only in cases involving "a decree of annulment or dissolution of a marriage or of separation from bed and board." Additionally, adult support under ORS 107.108 may also be ordered in cases involving parents who have never been married to one another, ORS 109.155(4), and to married persons who are living apart, ORS 108.110. In no circumstance, however, are married parents residing together subject to the state-compelled support obligation authorized by ORS 107.108. Married parents residing together have absolute immunity from the specter of court orders requiring them to pay money for their 18 to 21 year old adult offspring who decide to go to college.

The Constitutional Provisions

Article I, section 20, of the Oregon Constitution provides:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."

As construed by this court, Article I, section 20, of the Oregon Constitution is "a guarantee against unjustified denial of equal privileges or immunities to individual citizens" as well as "against unjustified differentiation among classes of citizens." State v. Clark, 291 Or 231, 239, 630 P2d 810, cert den 454 US 1084 (1981). (Emphasis supplied.)

The Fourteenth Amendment to the United States Constitution provides:

"* * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State * * * deny to any person within its jurisdiction the equal protection of the laws."

Analysis of classification schemes under Article I, section 20, generally coincides with classification analysis under the Equal Protection Clause. Clark, 291 Or at 243; City of Klamath Falls v. Winters, 289 Or 757, 769 n 10, 619 P2d 217 (1980).

The interest of the state

Proponents of ORS 107.108 assert that the state has an interest in having a "well-educated populace." Father does not disagree. The issue before the court, however, is whether this interest is advanced by ORS 107.108 in a manner that is consistent with the equal privileges and immunities provision of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. Father contends that it is not.
The equal privileges and immunities clause of the Oregon Constitution, as well as the Fourteenth Amendment of the US Constitution, does not prohibit all class distinctions that might result from a particular statute. However, to pass constitutional muster, a statute must not result in "different treatment be[ing] accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute." Eisenstadt v. Baird, 405 US 438, 92 S Ct 1029, 31 L Ed 2d 349 (1972).
ORS 107.108 flunks this fundamental constitutional test. It places citizens into different classes based on a criterion wholly unrelated to the statute’s objective, which is to assure that a college student’s need for financial support from parents is fulfilled.
The situation of an 18 to 21 year old adult who is attending college and in need of parental support, and whose parents are divorced, is in no way different from the situation of an 18 to 21 year old adult, also attending college and also in need of parental support, whose parents are married.
Young adults who need parental support for college and whose parents are divorced are not "more needy" simply because their parents are divorced, in contrast to young adults in like circumstances whose parents happen to be married. Likewise, young adults in the same situation whose parents are married are not "less needy" simply because their parents are married. Need is need; it should not be contingent on the marital status of the needy student’s parents.
If the state’s interest in having a well-educated populace justifies the enactment of a statute that allows needy 18 to 21 year old adults legal recourse for the purpose of compelling financial support from parents who presumably are unwilling to voluntarily provide such support, there is no rational basis for limiting the legal recourse to only those parents who happen to be divorced, separated or never-married, and exempting married parents who may likewise presumably be unwilling to voluntarily provide the needed support.
In sum, while the government has an interest in promoting higher education for its citizens, a statute that allows for the imposition of compulsory support obligations on parents of 18 to 21 year old adults, but only if the parents are divorced, separated or never-married, is not rationally related to the governmental interest.

The Pennsylvania case: Curtis v. Kline

Father finds the reasoning and rationale set forth by the Pennsylvania Supreme Court in Curtis v. Kline, 542 Pa 249, 666 A2d 265 (1995), to be squarely on point and persuasive.
Curtis involved a father's challenge to the constitutionality of 23 Pa Con Stat

§ 4327(a), enacted by the Pennsylvania legislature as Act 62 of 1993:

"(a). [A] court may order either or both parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation to provide equitably for educational costs of their child whether an application for this support is made before or after the child has reached 18 years of age."

The Pennsylvania court recognized that the statute "classifies young adults according to the marital status of their parents, establishing for one group an action to obtain a benefit enforceable by court order that is not available to the other group." 666 A2d at 269. So too does ORS 107.108.
Pennsylvania's Act 62 and Oregon's ORS 107.108 deal with the same subject and have the same substantive effect. Both statutes accord a legal privilege to certain members of one class of citizens (18 to 21 year old adults who seek parental support for post-secondary education) that is not accorded to other members of the same class. Further, both statutes effectively result in the imposition of legal and financial liabilities on certain members of one class of citizens (parents) that are not imposed on others of the same class.
In Curtis, 666 A2d at 269, the Pennsylvania Supreme Court summed up the situation as follows:

"In the absence of an entitlement on the part of any individual to post-secondary education, or a generally applicable requirement that parents assist their adult children, we perceive no rational basis for the state government to provide only certain adult citizens with legal means to overcome the difficulties they encounter in pursuing that end."

Rational classification

In the instant case, mother argues that the state has a legitimate interest in providing its citizens with opportunities for post-secondary education. 3. She then argues that the disparate application of ORS 107.108 is rationally related to the state’s legitimate interest in that it is intended to protect adults whose parents are divorced, separated or never-married from being unjustly deprived of post-secondary educational opportunities they would presumably otherwise have if their parents were married and residing together.

As pointed out in Curtis, 666 A2d at 269, this proposition assumes the validity of the classification, i.e., that it is valid to classify financially needy young adults into two distinct groups, based on the marital status of their parents, with state protection then being afforded to one group but not to the other. As the Pennsylvania Supreme Court observed:

"Recognizing that within the category of young adults in need of financial help to attend college there are some having a parent or parents unwilling to provide such help, the question remains whether the authority of the state may be selectively applied to empower only those from non-intact families to compel such help. We hold that it may not." Curtis, 666 A2d at 269.

ORS 107.108 it is a discretionary statute, presumably to be implemented upon a showing of the individual student’s need for the money. 4. Absent a showing of need for parental assistance on the part of the individual young adult attending college, the state has no interest in ordering parents to pay money to or for such adult children, regardless of the marital status of the student’s parents.
Given that the objective of ORS 107.108 is to advance the state’s interest in having a well-educated populace by providing a legal remedy for compelling parents to support their adult children who desire to pursue higher education and who are in need of such support in order to do so, a classification scheme that exempts married parents from the financial obligation, simply because they are married (and without regard to the actual financial need of the adult offspring), results in an unjustifiable irrationality, unrelated to the purpose of the statute.

Conclusion

While the state may choose to provide a legal remedy allowing 18 to 21 year old adults to compel parental support in order to pursue higher education, consistent with the state’s interest in having a well-educated populace, the authority of the state may not be selectively applied to empower only those from non-intact families to compel such help.
Absent a general entitlement to post-secondary education or a generally applicable legal requirement that all parents assist their 18 to 21 year old offspring in obtaining such education, there is no rational basis for the state to provide only certain adult citizens with the legal means to overcome the financial difficulties they encounter in pursuing that end.
By permitting Oregon courts to impose compulsory support obligations on parents of adults between ages 18 and 21 who are attending college if, and only if, the parents are divorced, separated or never-married to one another, while exempting from its purview married parents who are residing together, ORS 107.108 establishes a discriminatory classification that results in differing treatment being accorded to persons placed by the statute into different classes on the basis of criteria wholly unrelated to the statute’s objective. In doing so, ORS 107.108 violates Article I, section 20 of the Oregon Constitution as well as the Fourteenth Amendment of the United States Constitution.
The essence of Article I, section 20, as well as the Fourteenth Amendment, is simple: like citizens in like circumstances are to be treated equally in the eyes of the law. ORS 107.108 violates this fundamental constitutional principle. The statute is unconstitutional. This court should so declare.

Respectfully submitted,

/s/ Lawrence D. Gorin

Dated: June 8, 1999 . __________________________________

LAWRENCE D. GORIN OSB # 73109

Attorney for Dennis James Crocker

Petitioner on Review