07/25/97 TONI RAE GUARD, Individuual v. JOHN JACKSON and CINDY J
BLUE BOOK CITATION FORM: 1997.WA.1208 (http://www.versuslaw.com)
[Editor's note: footnotes (if any) trail the opinion]
[1] IN THE SUPREME COURT OF THE STATE OF WASHINGTON
[2] TONI RAE GUARD, Individually and as Parent and Personal
Representative for the Estate of JEFFREY KING BEESTON, JR., Plaintiff,
JEFFREY KING BEESTON, SR., Respondent,
v.
[3] JOHN JACKSON and CINDY JACKSON, husband and wife, Petitioners.
[4] 64704-6
[5] En Banc
[6] Filed July 24, 1997
[7] Counsel for Petitioner(s)
John C. Belcher
Belcher Swanson Lackey Doran Lewis Robertson
1200 Harris Ave Ste 307
Bellingham, WA 98225-7144
[8] Counsel for Respondent(s)
Eugene N. Bolin Jr.
The Law Offices of Eugene Bolin Jr.
3316 Fuhrman Avenue East
Suite 250
Seattle, WA 98102
[9] Matthew D. Dubin
The Law Offices of Eugene N. Bolin Jr.
3316 Fuhrman Avenue East
Suite 250
Seattle, WA 98102
[10] Amicus Curiae on behalf of American Civil Liberties Union of Wa
Kathryn L. Tucker
40th Fl
1201 3rd Ave
Seattle, WA 98101-3099
[11] Erika J. Starrs
4oth Floor
1201 Third Ave
Seattle, WA 98101
[12] DOLLIVER, J.
[13] RCW 4.24.010 authorizes parents to file a wrongful death action
for the death of their minor child. In the case of an illegitimate
child, however, the statute requires the father to have contributed
regularly to the financial support of the child before the father can
join in the action. The statute places no such contribution requirement
on the mother of an illegitimate child. We find the support requirement
violates Washington's Equal Rights Amendment (ERA) (Const. art. XXXI,
sec. 1).
[14] Jeffrey King Beeston, Jr. (Jeffrey), was born to Toni Rae Guard
and Jeffrey Beeston (Beeston) in 1988. Beeston and Guard never married,
but Beeston's paternity of Jeffrey was established by a paternity action
in 1990. In the paternity action, Guard was given custody of Jeffrey,
and Beeston was required to contribute to the cost of Jeffrey's support.
Beeston admits he "failed to pay all of the amounts he was ordered to
pay, under the court orders . . . ." Report of Proceedings at 10.
[15] In 1992, four-year-old Jeffrey was struck and killed by a pickup
truck driven by John Jackson. Guard brought a wrongful death action
against Jackson under several statutes, including RCW 4.24.010. Beeston
intervened in the action, seeking to be joined as a plaintiff. Both
Guard and Jackson argued to the trial court that Beeston's standing to
be a plaintiff was precluded under RCW 4.24.010 because he had not
regularly contributed to Jeffrey's support. The relevant language from
RCW 4.24.010 states:
[16] PROVIDED, That in the case of an illegitimate child the father
cannot maintain or join as a party an action unless paternity has been
duly established and the father has regularly contributed to the child's
support.
[17] Beeston argued the quoted language violates the ERA and urged
the trial court to strike the support requirement so as to allow him to
remain a party to the action. The trial court upheld the
constitutionality of the support requirement in RCW 4.24.010 as applied
to Beeston. The court found Beeston owed more than $6,000 to Guard for
Jeffrey's support at the time of Jeffrey's death, and the court
dismissed Beeston from the suit.
[18] In a published opinion, the Court of Appeals reversed the trial
court and held the support requirement in RCW 4.24.010 violates the ERA
by denying equal rights on account of sex. Guard v. Jackson, 83 Wn.
App. 325, 921 P.2d 544 (1996). The court severed the support
requirement from the statute and ordered the trial court to reinstate
Beeston as a party to the wrongful death action. Guard, 83 Wn. App. at
334. Jackson petitioned this court for review.
[19] The Equal Rights Amendment to the Washington State Constitution
was adopted in 1972. The amendment states:
[20] Equality of rights and responsibility under the law shall not be
denied or abridged on account of sex.
[21] Const. art. XXXI, sec. 1.
[22] Prior to adoption of the ERA, we subjected classifications based
upon sex to strict judicial scrutiny. Hanson v. Hutt, 83 Wn.2d 195,
201, 517 P.2d 599 (1973) (holding a statute with a classification based
on pregnancy is subject to strict scrutiny under the state Privileges
and Immunities Clause, Const. art. I, sec. 12). This distaste for sex
discrimination has been stronger than that evidenced by the federal
courts, which apply only intermediate scrutiny to sex-based
classifications. See, e.g., United States v. Virginia, U.S., 116 S.
Ct. 2264, 2274, 135 L. Ed. 2d 735 (1996) (applying the intermediate
scrutiny standard as stated in Mississippi Univ. for Women v. Hogan, 458
U.S. 718, 724, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982)).
[23] Under the less stringent federal equal protection analysis, a
narrow plurality of the United States Supreme Court has upheld a Georgia
statute similar to RCW 4.24.010. Parham v. Hughes, 441 U.S. 347, 99 S.
Ct. 1742, 60 L. Ed. 2d 269 (1979) (upholding a statute which precludes a
father who has not legitimated his child from bringing a wrongful death
action). Since Parham decided the issue under the more lenient federal
equal protection analysis, it provides no guidance to this court's
consideration under the ERA.
[24] In 1972, the citizens of Washington state voted to approve the
Equal Rights Amendment to the Washington State Constitution. The
adoption of the ERA "added something to the prior prevailing law by
eliminating otherwise permissible sex discrimination if the rational
relationship or strict scrutiny tests were met." Darrin v. Gould, 85
Wn.2d 859, 871, 540 P.2d 882 (1975). "Presumably the people in adopting
Const. art. 31 intended to do more than repeat what was already
contained in the otherwise governing constitutional provisions . . . ."
Darrin, 85 Wn.2d at 871. In Marchioro v. Chaney, 90 Wn.2d 298, 582 P.2d
487 (1978), aff'd, 442 U.S. 191, 99 S. Ct. 2243, 60 L. Ed. 2d 816
(1979), we explained the impact of the ERA:
[25] Under the equal rights amendment, the equal protection/suspect
classification test is replaced by the single criterion: Is the
classification by sex discriminatory? or, in the language of the
amendment, Has equality been denied or abridged on account of sex? In
the language of Darrin v. Gould at page 877, "under our ERA
discrimination on account of sex is forbidden." (Italics ours.) See
Singer v. Hara, 11 Wn. App. 247, 257, 522 P.2d 1187 (1974).
[26] Marchioro, 90 Wn.2d at 305. See also Southwest Wash. Chapter,
Nat'l Elec. Contractors Ass'n v. Pierce County, 100 Wn.2d 109, 127, 667
P.2d 1092 (1983) ("The ERA absolutely prohibits discrimination on the
basis of sex and is not subject to even the narrow exceptions permitted
under traditional 'strict scrutiny'.") (citing Darrin, 85 Wn.2d at 872).
[27] We have found few exceptions to the ERA's prohibition against
sex-based classifications. When differential treatment of the sexes is
based upon actual differences between the sexes, the ERA is not
violated. City of Seattle v. Buchanan, 90 Wn.2d 584, 584 P.2d 918
(1978) (ordinance prohibiting public exposure of female breasts is based
upon actual difference between the sexes and does not violate the ERA).
Furthermore, we have upheld, under ERA scrutiny, affirmative action
programs which were designed to alleviate effects of past discrimination
and attain equality in fact. Electrical Contractors, 100 Wn.2d at 127;
see also Gary Merlino Constr. Co. v. City of Seattle, 108 Wn.2d 597,
606, 741 P.2d 34 (1987).
[28] Jackson defends the support requirement in RCW 4.24.010 on the
theory that the Legislature can permissibly "create a right which has
certain limitations." Pet. for Review at 10 (quoting Masunaga v.
Gapasin, 57 Wn. App. 624, 634, 790 P.2d 171 (1990)). It is true that
the wrongful death cause of action authorized under RCW 4.24.010 is a
legislatively created right, and such "rights are peculiarly subject to
legislatively created conditions." Shoemaker v. St. Joseph Hosp. &
Health Care Ctr., 56 Wn. App. 575, 578, 784 P.2d 562 (1990) (citing
Shope Enters., Inc. v. Kent School Dist., 41 Wn. App. 128, 131, 702 P.2d
499 (1985)). Shoemaker, however, correctly limited its statement in the
following way: "If the Legislature has delineated a proper class, it
then has broad latitude in providing remedies to that class."
Shoemaker, 56 Wn. App. at 579 (emphasis added). Because we find that
fathers of illegitimate children are an improperly delineated class, as
discussed below, the restriction placed on that class cannot be
justified under legislative prerogative.
[29] Jackson claims Beeston cannot challenge the constitutionality of
RCW 4.24.010 because the statute does not discriminate against him. "A
party may challenge the constitutionality of a statute only as applied
to the party, and may not challenge it on the ground that the statute
might be unconstitutional as applied to someone else." City of Seattle
v. Montana, 129 Wn.2d 583, 598, 919 P.2d 1218 (1996) (citing Broadrick
v. Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 37 L. Ed. 2d 830
(1973)); see also Marchioro, 90 Wn.2d at 303 ("A person has standing to
raise constitutional questions when his interest is a '"personal stake
in the outcome of the controversy."'") (quoting DeFunis v. Odegaard, 82
Wn.2d 11, 24, 507 P.2d 1169 (1973)).
[30] The trial court appears to have adopted Jackson's argument
concerning Beeston's ability to challenge the constitutionality of RCW
4.24.010. In the trial judge's letter to the parties announcing the
court's decision to dismiss Beeston from the action, the court reasoned:
[31] Certainly, if the present case were one in which both Ms. Guard
and Mr. Beeston had not regularly contributed to the child's support, it
would appear to violate the equal rights amendment if Ms. Guard were
allowed to proceed with a wrongful death action while Mr. Beeston were
barred from doing so. This is not our case, however. In the present
case, it is undisputed that Ms. Guard . . . regularly supported
{Jeffrey, Jr.}. By contrast, the court has ruled that Mr. Beeston did
not regularly contribute to Jeffrey, Jr.'s support. Accordingly, as
applied in the present case, the statute does not unconstitutionally
discriminate against Mr. Beeston on account of sex.
[32] Clerk's Papers at 140-41.
[33] In finding RCW 4.24.010 constitutional as applied to Beeston,
the trial court analysis strayed from the language of the ERA, which
prohibits "{e}quality of rights and responsibility under the law" from
being "denied or abridged on account of sex." Const. art XXXI, sec. 1.
[34] RCW 4.24.010 grants an unfettered cause of action both to
parents of legitimate children and to mothers of illegitimate children.
The statute imposes a support requirement on just fathers of
illegitimate children. The Legislature has limited Beeston's ability to
participate in the wrongful death action on account of his being the
father of an illegitimate child, whereas if he were the mother, he would
have been able to participate in the lawsuit without having to prove
support. See Guard, 83 Wn. App. at 331 ("If Beeston were a female
parent, the statute would confer standing to sue without further
qualification."). Because RCW 4.24.010 abridges Beeston's right to
participate in Guard's lawsuit, on account of a support requirement
placed only on members of the male sex, the statute, as applied in this
case, discriminates against Beeston. He has standing to raise this
constitutional challenge under the ERA.
[35] Having found the support provision in RCW 4.24.010 discriminates
against Beeston on account of his sex, we must ask whether the
discrimination is allowable under any of the narrow exceptions to the
ERA. Jackson asserts the differential treatment in RCW 4.24.010 is valid
because it is based upon actual differences between the sexes. Jackson
claims:
[36] Under RCW 4.24.010, only a parent with a special relationship to
a child is allowed to claim general damages for the death of the child.
A mother (married or unmarried) risks her life to bear the child and
therefore qualifies.
[37] . . . An unmarried father, on the other hand, does not
necessarily assume any burden in bringing the child into the world and
does not automatically qualify.
[38] Supplemental Br. of Pet'rs Jackson at 5.
[39] Jackson's argument fails to point to any actual difference
between the sexes that would justify the discriminatory support
requirement in RCW 4.24.010. The Court of Appeals' disposal of
Jackson's argument is well reasoned:
[40] The purpose of the challenged proviso is to exclude as
plaintiffs those parents who do not support their children. A
distinction between men and women has no rational relationship to that
purpose. The purpose of the wrongful death statute as a whole is to
allow suit for damages "for the loss of love and companionship of the
child and for injury to or destruction of the parent-child
relationship." The damages are those that result from the child's
death, not from gestation and birth. The capacity to suffer loss when a
child dies is not unique to mothers.
[41] Guard, 83 Wn. App. at 333 (quoting RCW 4.24.010). Since there
is no actual difference between the sexes that justifies the limitation
of a father's right to recover damages for the death of an illegitimate
child, the support provision unconstitutionally violates the ERA.
[42] The Court of Appeals ordered the unconstitutional support
provision to be severed from the remainder of RCW 4.24.010, and it
ordered Beeston to be reinstated as a party to the action. Neither
party has raised issue with the court's finding of severability, nor
does the ruling appear to be in error. The Court of Appeals is
affirmed.
[43] WE CONCUR:
[44] SMITH, J. (concurring specially)
[45] I fully agree with the decision of the majority in this case. I
write specially, though, to express my concern over perpetuation of the
offensive term "illegitimate" in referring to a child born to parents
not married to each other.
[46] Certainly "illegitimate" is a better word than "bastard," a word
common in earlier statutes and decisions. RCW 4.24.010, at issue in this
case, uses the term "illegitimate child." An innocent child is still
stigmatized by that reference.
[47] We have made great strides in amending statutes to remove
age-old terms which are offensive in our present-day society. The
legislative process can use words which convey the same meaning, but are
less demeaning to children. To the credit of our Legislature, it has
already begun this process. RCW 4.24.010 and RCW 41.26.030 seem to be
the only statutes which still refer to "illegitimate child."
[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]
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This case has been republished on the ACFC website with the permission of VersusLaw.
19970725
1997.WA.1208