informed, mature manner; and the impor- Referring to the need for parental guidance upon the decisions of minors, the Court went on to say: Properly understood, then, the tradition of parental authority is not inconsistent with our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter. Legal restrictions on minors, especially those supportive of the parental role, may be important to the child's chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding. Under the Constitution, the State can "properly conclude that parents and others, teachers for example, who have [the] primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility." Ginsberg v. New York, 390 U.S. [629], at 639, 88 S.Ct. [1274], at 1280 [20 L.Ed.2d 195 (1968)]. Id. 443 U.S. at 638-39, 99 S.Ct. at 3045-46 (footnotes omitted). In H.L. v. Matheson, 450 U.S. 398, 411, 101 S.Ct. 1164, 1172, 67 L.Ed.2d 388 (1981), the Court acknowledged the impact of abortion on a minor when it said that: The medical, emotional, and psychological consequences of an abortion are serious and can be lasting; this is particularly so when the patient is immature. Thus, the United States Supreme Court has consistently recognized that a state statute requiring parental consent to a minor's abortion is constitutional if it provides a judicial alternative in which the consent is obviated if the court finds that the minor is mature enough to make the abortion decision or, in the absence of the requisite maturity, the abortion is in the minor's best interest. Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); Bellotti. While purporting to acknowledge the state's interest in protecting minors and in preserving family unity, the majority reaches the conclusion that these interests as reflected in the instant statute must fall in the face of its broad interpretation of the privacy amendment. In effect, the Court has said that the state's interest in regulating abortions is no different with respect to minors than it is with adults. Under this ruling, even immature minors may decide to have an abortion without parental consent. I do not agree with either the majority's broad interpretation of the privacy amendment or its limited view of the state's interest concerning the conduct of minors. Tucker v. Toia Page 166, Discussion Notes: Discussion Notes: 3. The New York Constitutional provision applied in Tucker is what Professor Burt Neuborne has recently referred to as a "positive" as opposed to "negative" right. See Burt Neuborne, "Foreword: State Constitutions and the Evolution of Positive Rights," Rutgers Law Journal 20 (Summer 1989): 881. See also Peter Galie, "Social Services and Egalitarian Activism," in Human Rights in the States (Stanley Friedelbaum, ed., 1988). 4. See also Article XI, Sec. 4 of the North Carolina Constitution, which provides "Beneficent provision for the poor, the unfortunate, and the orphan is one of the first duties of a civilized and a Christian state. Therefore, the General Assembly shall provide for and define the duties of a board of public welfare." This provision, dating from 1868, is discussed in Dennis R. Ayers, "The Obligation of North Carolina Municipalities and Hospital Authorities to Provide Uncompensated Hospital Care to the Medically Indigent," Wake Forest Law Review 20 (Summer 1984): 330-34. See also Board of Managers v. City of Wilmington, 237 N.C. 179, 74 S.E.2d 749 (1953); Michael A. Dowell, "State and Local Governmental Legal Responsibility to Provide Medical Care for the Poor," Journal of Law and Health 3 (1988-89): 6-7 ("Fifteen states have constitutional provisions which authorize or mandate the provision of medical care for the poor."). Butte Community Union v. Lewis 712 P.2d 1309 (Mont. 1986) MORRISON, Justice. The District Court of the First Judicial District issued a preliminary injunction enjoining Dave Lewis, Director of Montana's Department of Social and Rehabilitation Services (SRS), from implementing certain provisions of House Bill 843 (Chapter No. 670, 1985 Mont. Laws). Lewis appeals. We affirm the issuance of the preliminary injunction and issue a permanent injunction for the same purpose. In response to a complaint filed by Butte Community Union in February of 1984, the Honorable Arnold Olsen issued a preliminary injunction June 29, 1984, prohibiting the Department of Social and Rehabilitation Services (SRS) from implementing proposed regulations establishing AFDC guidelines as the guidelines for determining general assistance (GA) benefits. Thereafter, the 1985 Montana Legislature enacted House Bill 843 establishing cash payment levels for GA recipients in accordance with Judge Olsen's order. House Bill 843 also eliminates GA payments to able-bodied individuals under thirtyfive who have no minor dependent children and substantially restricts GA payments to able-bodied individuals between thirty-five and fifty who have no minor dependent children. On June 3, 1985, Butte Community Union (respondents) filed an amended complaint challenging the constitutionality of HB 843 and requesting the court to issue a preliminary injunction forbidding SRS from implementing that part of HB 843 which restricts or denies GA benefits to able-bodied individuals with no minor children. Following a hearing and briefing by the parties, the trial court issued a preliminary injunction on July 1, 1985, the date HB 843 was to go into effect. In its findings, conclusions and order, the trial judge held that Art. XII, section 3(3) of the Montana Constitution establishes a fundamental right to welfare "for those who, by reason of age, infirmities, or misfortune may have need for the aid of society." That section states: (3) The legislatures shall provide such eco- He further held that respondents (plaintiffs below) raised serious questions concerning whether HB 843 establishes an impermissible, discriminatory constitutional classification, thus violating the respondents' constitutional guarantee of equal protection. Finally, he held that a preliminary injunction should issue because respondents established a prima facie case that HB 843 is unconstitutional and because they showed that it is "doubtful whether or not they will suffer irreparable injury before their rights are fully litigated." The preliminary injunction was issued and SRS appeals, raising the following general issue: Whether the defendant, Dave Lewis, as a public official, should be enjoined from implementing those provisions of HB 843 which restrict or deny general assistance benefits to able-bodied persons under the age of fifty who do not have minor dependent children? The following sub-issues are assigned for review: 1. Whether the District Court used an incorrect standard for issuing the preliminary injunction? 2. Whether HB 843 violates art. XII, section 3(3), of the Montana Constitution? 3. Whether HB 843 violates equal protection or due process constitutional guarantees? 4. Whether HB 843 violates the Montana Human Rights Act? We hold that Dave lewis, as a public official, should be permanently enjoined from implementing the pertinent provisions of HB 843. However, our reasons for this injunction differ markedly from those of the trial judge. We find that the Montana Constitution does not establish a fundamental right to welfare for the aged, infirm or misfortunate. However, bethe constitutional convention delegates deemed welfare to be sufficiently important to warrant reference in the Constitution, we hold that a classification which abridges welfare benefits is subject to a heightened scrutiny under an equal protection analysis and that HB 843 must fall under such scrutiny. Respondent contends that the result of this legislation is forbidden by the Constitution. Respondent argues the Legislature must fund welfare for the misfortunate. However, because the legislation at issue today is discriminatory in nature, determining its constitutionality calls for equal protection analysis. It is not necessary that we address the broader question of whether there is a constitutional directive to the Legislature for the funding of welfare which can not be avoided under any set of circumstances. The fourteenth amendment to the Federal Constitution and article II, section 4 of the Montana Constitution provide that "[n]o person shall be denied the equal protection of the laws." The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government. J. Nowak, R. Rotunda and J.N. Young, Constitutional Law, Chpt. 16, sec. 1 (2d ed. 1983). Equal protection analysis traditionally centers on a two-tier system of review. If a fundamental right is infringed or a suspect classification established, the government has to show a "compelling state interest" for its action. If the right is other than fundamental, or the classification not suspect, the government has only to show that the infringement or classification is rationally related to a governmental objective which is not prohibited by the Constitution. J. Nowak, supra. In the instant case, the trial judge held the right to welfare to be fundamental. We can not agree. In order to be fundamental, a right must be found within Montana's Declaration of Rights or be a right "without which other constitutionally guaranteed rights. would have little meaning." In the Matter of C.H. (Mont.1984), 683 P.2d 931, 940, 41 St.Rep. 997, 1007. Welfare is neither. Art. XII, sec. 3(3) of the 1972 Montana Constitution, the section on which the trial judge relies, is not part of the Declaration of Rights. Art. II, sec. 3 is the only section in the Declaration of Rights which arguably could create a right to welfare. It states: Inalienable rights. All persons are born free and have certain inalienable rights. They include the right... of pursuing life's basic necessities. . . Mont. Const., art. II, sec. 3 (1972). The official committee comment to that provision states: The intent of the committee on this point is not to create a substantive right for all for the necessities of life to be provided by the public treasury. There is no constitutional right to welfare within the Montana Constitution's Declaration of Rights. Further, the right to welfare is not a right upon which constitutionally guaranteed rights depend. In fact, welfare is more properly characterized as a benefit. Since welfare is not a fundamental right, strict scrutiny does not apply and the State need show something less than a compelling state interest in order to limit that right. We proceed to develop our own middle-tier test for determining whether HB 843 violates the Montana Constitution. We do so because although a right to welfare is not contained in our Declaration of Rights, it is sufficiently important that art. XII, sec. 3(3) directs the Legislature to provide necessary assistance to the misfortunate. A benefit lodged in our State Constitution is an interest whose abridgement requires something more than a rational relationship to a government objective. A need exists to develop a meaningful middle-tier analysis. Equal protection of law is an essential underpinning of this free society. The old rational basis test allows government to discriminate among classes of people for the most whimsical reasons. Welfare benefits grounded in the Constitution itself are deserving of great protection. SHEEHY, Justice, specially concurring: In addition to my concurrence with the majority opinion, I wish to state some observations. For the purposes of this case, I am willing to concede that a fundamental right to welfare for the individuals affected does not exist. There is however a constitutionally-mandated duty upon the legislature to provide economic assistance "as may be necessary" for the misfortunate who need the aid of society. Art. XII sec. 3(3). When that duty is shirked by the legislature, upon whatever pretense, the class discriminated against has at least a constitutional right for redress in the courts. I am unable to distinguish the fine line between "fundamental right" for the discriminated class and the constitutional right for redress. I do not wish to be bound by the statement in the majority opinion that fundamental rights under the Montana Constitution must be found within the Declaration of Rights, Art. II. The Article holds itself open to unenumerated rights which may not be denied to the people. Art. II, sec. 34. Page 168, Discussion Notes: Discussion Notes: 3. See also Suzanna Sherry, "The Early Virginia Tradition of Extra-Textual Interpretation," Albany Law Review 53 (Winter, 1989): 297. Page 177, at end of page: 4. Waiver of State Constitutional Rights Woodruff v. Bd. of Trustees of Cabell Huntington Hospital 319 S.E.2d 372 (W.Va. 1984) Because the collective bargaining agreement in question contains a provision prohibiting picketing and patrolling by hospital union members, the issue of waiver of free speech rights is raised. First, waiver of free speech, assembly, association, and petition rights under the West Virginia Constitution will be addressed. Second, waiver of first amendment rights under the federal constitution will be examined. Article III, sec. 1 of the West Virginia Constitution provides that: All men are, by nature, equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely: the enjoyment of life and liberty, with the means of acquiring and possessing property, and of pursuing and obtaining happiness and safety. These inherent rights, of which members of society may not by contract divest themselves, include the freedoms of speech and press under article III, sec. 7 of the West Virginia Constitution, and the rights to assemble, associate, and petition under article III, sec. 16 of the West Virginia Constitution. No parallel provision to this section of our state constitution appears in the United States Constitution. Therefore, with respect to the waiver of fundamental constitutional rights, our state constitution is more stringent in its limitation on waiver than is the federal constitution. We therefore hold that, under article III, secs. 1, 7, and 16 of the West Virginia Constitution, collective bargaining agreements in the public sector may not contain provisions abrogating employees' fundamental constitutional rights, including rights of expression, assembly, association, and petition. The petitioner employees' activities in the present case were unquestionably exercises of all four of these fundamental constitutional rights. We therefore conclude that the respondents' termination of the petitioner employees violated their fundamental constitutional rights under article III, secs. 1, 7, and 16 of the West Virginia Constitution. Discussion Notes: 1. See also Choi v. State, 316 Md. 529, 560 A.2d 1108 (1989) (state constitutional standard for waiver of privilege against self-incrimination stronger than federal standard). Page 188, Discussion Notes: Discussion Notes: 3. In 1986, Justice Thomas L. Hayes had the following to say about the Jewett opinion he authored: There was some discussion on the court about publishing a law review article advising lawyers to look to the state constitution, but I had the feeling that if we took that course the article would be read by nine students, nine law professors, and the janitor who was cleaning up at night at the law school. I believed an article would not get our message across. Ultimately the court agreed that if we were to tell our lawyers: "Look to your Vermont constitution and, when you do, brief it adequately," we could do so only in a judicial opinion. Thomas L. Hayes, "Clio in the Courtroom," Vermont History 56 (Summer 1988): 149. 4. For the views of Vermont's Attorney General on the reemergence of state constitutional law, see Jeffrey Amestoy and Julie Brill, "State Constitutions from the Attorney General's Perspective: An Institutional Schizophrenía," Emerging Issues in State Constitutional Law 1(1988): 229; Jeffrey Amestoy, "State Constitutional Law: An Attorney General's Perspective," Vermont Law Review 13 (1988): 337. Page 200, Discussion Notes: Discussion Notes: 3. In Thies v. State Board of Elections, 124 Ill.2d 317, ,529 N.E.2d 565, 568 (1988), the Illinois Supreme Court noted: "This case involves one of the rare instances where resorting to the debates of the convention reveals that the exact question presented for review in this court was asked and answered by the delegates to the convention." Page 204, Discussion Notes: Discussion Notes: 3. Constitutional history is valuable whether or not one subscribes to a jurisprudence of original intent. For those who do, history becomes controllingimportant because it does, or should, determine constitutional interpretation. For those who reject a jurisprudence of original intent, constitutional history nevertheless helps us to preserve the lessons embodied in the drafting of the provisions at issue and to explore the consequences of the language chosen. State constitutional history has become more important as the United States Supreme Court has become less protective of individual rights. Stephen E. Gottlieb, "Foreword: Symposium on State Constitutional History: In Search of a Usable Past," Albany Law Review 53 (Winter 1989): 258. See also, Pierre Schlag, "Framers Intent: The Illegitimate Uses of History," University of Puget Sound Law Review 8 (Winter 1985): 283. 4. We cannot assume, as a matter of a pri- |