IN THE SUPREME COURT OF PENNSYLVANIA


6 E.D. Appeal Docket 1994




BONITA KLINE CURTIS

v.

PHILIP H. KLINE
           Appellee



COMMONWEALTH OF PENNSYLVANIA,
      Appellant


BRIEF OF PHILIP H. KLINE


On Appeal to the Supreme Court of Pennsylvania from the Order of the Court of Common Pleas of Chester County, Pennsylvania, Domestic Relations Section entered January 12, 1994, at NO. 1012 N 1984, granting Defendant's Petition to modify and terminate support.

WILLIAM H. MITMAN, JR., ESQUIRE
Attorney I.D. No. 17794
111 South Church Street
West Chester, PA 19382
(610) 696-9315
Counsel for Philip H. Kline



SUMMARY OF ARGUMENT

A Parent's interests in the education of his or her adult children are important as a matter of constitutional law. Therefore, this Court should utilize an intermediate, or heightened, standard of review in determining whether or not 23 PA C.S. Sec. 4327 violates the equal protection clause. The application of this standard leads to the conclusion that the Act is unconstitutional.
If this Court should conclude, however, that the appropriate standard of review is the rational basis standard, the statute nevertheless cannot survive review when tested against that standard.



ARGUMENT

I. THE APPROPRIATE STANDARD

The Supreme Court of Pennsylvania has held that, in cases involving a challenge to the constitutionality of a statute based upon a perceived violation of equal protection guarantees contained in the Constitution of the United States, three distinct standards of judicial review may be applicable:
The types of classifications are: (1) classifications which implicate a "suspect" class or a fundamental right; (2) classifications implicating an "important" though no fundamental right or a "sensitive" classification; and (3) classifications which involve none of these. (cite omitted) Should the Statutory classification in question fall into the first category, the statute is strictly construed in the light of a "compelling" governmental purpose; if the classification falls into the second category, a heightened standard of scrutiny is applied to an "important" governmental purpose; and if the statutory scheme falls into the third category, the statute is held if there is any rational basis for the classification.
Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d 306 at p. 311 (1986).
The appellee (hereinafter father) argues initially that this Honorable Court should apply the "heightenend" or "intermediate" standard to the statute in question.(a)
Fathers assert that the parents of adult offspring possess an "important" right with respect to the question of whether or not they contribute to the cost of a college education for those offspring. He believes that this right derives from both privacy rights and liberty interests which have been constitutionally established. He suggests that the Commonwealth of Pennsylvania cannot order the parent of adult children to pay for a college education as a matter of law. The decision of each family as to whether or not the children should go to college, and who shall pay for those educational endeavors, are matters of right that are purely personal to the parents, and to the child. The state has no legitimate interest in interfering with those decisions. The decision of weather or not an adult goes to college is ultimately left to the child. Surely, no one can legitimately argue that parents can force their children to attend college. Upon attending age 18, a child is deemed an adult in this Commonwealth, and is thereupon possessed of all of the rights, privileges and obligations of adulthood, including the right to decide for himself whether or not to attend college, and which college to attend. It is certainly true that in many instances these decisions are based upon alternatives suggested by parents, siblings and various other relatives. Nevertheless, the final decisions is the adult-child's, not the parents'.
The Supreme Court of the United States has held that the right of a parent to the "custody and management" of a child is "constitutionally protected." Weinberger v. Wiesenfeld, 420 U.S. 636 at p. 652, 43 L.Ed. 2d 514, 95 S.Ct. 1225 (1975). Indeed, the Court has specifically addressed the importance of parental interests:
The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her child come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.
Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551 at p. 559, 92 S.Ct. 1208 (1972).
Father submits that the foregoing citations clearly demonstrates that the right of the parent to manage the development of their children are important rights. Father further submits that the degree to which any parents wishes to support, or discourage, the post majority educational endeavors of adult offspring is certainly encompassed within the management of children concept. Thus, there can be no doubt that the Act in question infringes upon important parental rights. Consequently, Father urges this Court to hold that the appropriate standard to be applied in the case at bar is a heightened or intermediate standard.
The Commonwealth argues, and indeed Father concurred in the lower Court, that the "rational basis" test is the appropriate test. That test is generally used when the Court is called upon to evaluate economic or social legislation. Belle Terre v. Boraas, 416 U.S. 1, 39 L.Ed. 2d 797, 94 S.Ct. 1536 (1974). Other state Supreme Courts have used the rational basis test when analyzing equal protection challenges to legislation similar to Le Claire v. Le Claire, 137 N.H. 213, 624 A.2d. 1350 (1993), Childers v. Childers, 89 Wash. 2d. 592, 575 P.2d. 201 (1978). It is unclear from those decisions however, whether or not those Courts even considered the possibility that a more stringent standard should be used. Father believes that, under either standard, this legislation violates the equal protection clause.

II. APPLICATION OF THE STANDARD

A. The Heightened, or Intermediate, Standard
When utilizing the heightened standard, the Court must consider three matters, i.e., the government interest fostered by the legislation must be an "important" one, the classification must be drawn so as to be closely related to the objectives of the legislation, and the person excluded from an important right or benefit must be permitted to challenge his exclusion. James v. SEPTA, 505 Pa. 137, 477 A.2d 1302 (1984), Smith v. City of Philadelphia, supra.
An Identification of the governmental interest involved in this case is of critical importance. The preamble to the Act states, inter alia, that:
... the General Assembly finds that it has a rational and legitimate governmental interest in requiring some parental financial assistance for a higher education for children of parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation. 23 Pa. C.S. 4237
Thus, the legislative expressed a belief that interest involved was assisting a certain class of adults in obtaining a college education. Father argues that is not the governmental interest at all. On the contrary, the true governmental interest is in fostering education of young adults, irrespective of the marital status of their parents.
The usual argument advanced in support of legislation similar to the ACT in question is that children from "broken" homes need additional help to get that which is presumably automatically obtained by children of intact families, i.e., financial assistance for post-majority education. If the government did not believe that post-majority education was important for all young adults, there would be no need to provide assistance to just one group which is presumably missing out on post- majority educational opportunity. It is obvious that the true governmental interest is in maximizing educational opportunities of all young adults, be they from intact, or non-intact, families.
Father suggests that this Court should conclude that the governmental interest involved in this case is the interest in maximizing the educational opportunities of all young adults, regardless of their familial status. Father would agree that such an interest is "important." Father cannot agree that a professed governmental interest in providing a mechanism whereby only some young adults can obtain financial assistance for post-majority education is an "important" governmental interest. The legislature itself describes such an interest as merely "legitimate" and "rational." These terms can hardly be equated with " important."
If the court concludes that the governmental interest involved relates to maximizing the educational opportunities for all young adults, that it is clear that the Act is not closely drawn to meet the objectives of the legislation, nor is it substantially related to that interest, because it ignores completely all those young adults who come from intact families.
Father further argues that the third test is not met by the Act in question, i.e., that the person excluded from an important right or benefit be permitted to challenge his exclusion. It is obvious that the Act confers an important benefit on one segment of the young adult population, i.e., the right to obtain financial assistance from their parents towards a college education. By its term, all children from intact families are excluded from this benefit, and in the absence of such benefit, they have no such right of financial assistance. See Blue v. Blue, ___ Pa. ___, 616 A.2d 628 (1992). The Act provides no method for these persons to challenge their exclusion.
Father therefore submits that an application of the heightened standard of review clearly reveals that this ACT violates Father's right to equal protection of the law.

B. The Rational Basis Standard
Should this Court conclude that a heightened standard of scrutiny is not required, the constitutional legitimacy of the legislation must be determined by an application of the rational basis test. In other words, can this Court conceive of any rational basis between the desirability of education of young adults and requiring financial contributions to that education from only those parents who are divorced, separated or otherwise subject to a support order? Father suggests that no rational basis exists.
The obvious, unstated basis of the legislation is the assumption that married parents living together will voluntarily contribute financially to the post-secondary educational costs of their children, while unmarried, or married, but separated, parents will not voluntarily so contribute. There is simply no basis in fact for this assumption. A review of the debate which took place in both the Pennsylvania House and Pennsylvania Senate, prior to the passage of this ACT, clearly reveals that no speaker presented any rational basis for the class discrimination caused by the Act. Despite the fact that the issue of unequal treatment was specifically raised by various opponents of the legislation, no speaker in support of the Act offered any kind of factual basis for legitimizing the unequal treatment.(b)
Discrimination are not supported by conjecture and cannot stand as reasonable if they offered the plan standards of common sense. Hartford Steam Boiler Inspection and Insurance Co. v. Harrison, 301 U.S. 459, 81 L.Ed. 1223, 57 S.Ct. 838 (1937). It is by practical experience and not by theoretical inconsistencies that the question of equal protection is to be decided. Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949). A clear example of the invidious and arbitrary nature of this legislation can be shown by considering the plight of a parent of children from a first and second marriage. The adult children from the first marriage can now obtain by legislation direction financial support for their post-majority educational endeavors, assuming that marriage to have ended in divorce. But, the adult children from the second marriage cannot, assuming the marriage is intact. How does on justify, on any basis, the discrimination between half-siblings? While the basis for the discrimination may be speculative, it still must be rational. Father submits that there are no conceivably rational circumstances which would protect this legislation from an equal protection challenge.

Respectfully submitted,

WILLIAM H. MITMAN, JR., ESQUIRE

FOOTNOTES

  1. The issue of the appropriate standard was not disputed in the Court below. Mother and Father agreed that a "rational basis" standard should be applied. The trial Court nevertheless addressed the issue in its Opinion (Note 3) and concluded that if it had employed a heightened scrutiny test, the result would have been the same. Father argues that given the circumstances, this issue should be addressed by this Court, and not deemed waived. The general rule frequently put forth by this Court is that "Matters not raised in, or considered by, the Court below cannot be invoked on appeal even though they involve constitutional questions." Altman v. Ryan, 453 Pa. 401 at p. 407, 257 A.2d 583 (1969). Father argues that:

    (1) The matter was considered by the Court below;

    (2) The general rule applies to appellants, not appellees. When an appellee raises a constitutional issue for the first time on appeal, the Court follows the rule that a correct decision will be sustained if it can be sustained for any reason whatsoever. Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 583 (1955);

    (3) "In any litigation, the failure to preserve an issue on appeal will be excused if there is a strong public interest that outweighs the need to protect the judicial system from improperly preserved issues." Schwarcz v. Schwarcz, 378 pa. Super. 170 at p. 201, 548 A.2d 556 (1988). Reilly by Reilly v. Southeastern Pa. Transp., 507 Pa. 204, 489 A.2d 1291(1985).

  2. Father realizes that a legislature is not required to articulate its reasons for enacting a statute. United States Retirement Board v. Fritz, 449 U.S. 166, 66 L.Ed. 2d 368, 101 S.Ct. 453 (1980). Nor does the absence of "legislative facts" explaining the basis for the classification have any significance in a rational basis analysis. Nordlinger v. Hahn, 505 U.S. ___, 120 L.Ed. 2d 1, 112 S. Ct. 2326 (1992). Nevertheless, Father submits that the utter failure of any legislative member to attempt to explain a rational basis for this legislation, despite having ample opportunity to do so, is a significant indicator that such basis does not exist.

    TABLE OF CITATIONS

    CASES

      Altman v. Ryan, 453 Pa. 401 at p. 407, 257 A.2d 583 (1969)

      Belle Terre v. Boraas, 416 U.S. 1, 39 L.Ed. 2d 797, 94 S.Ct. 1536 (1974)

      Blue v. Blue, ___ Pa. ___, 616 A.2d 628 (1992)

      Childers v. Childers, 89 Wash. 2d. 592, 575 P.2d. 201 (1978)

      Hartford Steam Boiler Inspection and Insurance Co. v. Harrison, 301 U.S. 459, 81 L.Ed. 1223, 57 S.Ct. 838 (1937)

      James v. SEPTA, 505 Pa. 137, 477 A.2d 1302 (1984)

      Le Claire v. Le Claire, 137 N.H. 213, 624 A.2d. 1350 (1993)

      Nordlinger v. Hahn, 505 U.S. ___, 120 L.Ed. 2d 1, 112 S. Ct. 2326 (1992)

      Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949)

      Reilly by Reilly v. Southeastern Pa. Transp., 507 Pa. 204, 489 A.2d 1291(1985)

      Schwarcz v. Schwarcz, 378 pa. Super. 170 at p. 201, 548 A.2d 556 (1988)

      Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 583 (1955)

      Smith v. City of Philadelphia, 512 Pa. 129, 516 A. 2d 306 (1986)

      Stanley v. Illinois, 405 U.S. 645, 31 L.Ed. 2d 551 at p. 559, 92 S.Ct. 1208 (1972)

      United States Retirement Board v. Fritz, 449 U.S. 166, 66 L.Ed. 2d 368, 101 S.Ct. 453 (1980)

      Weinberger v. Wiesenfeld, 420 U.S. 636 at p. 652, 43 L.Ed. 2d 514, 95 S.Ct. 1225 (1975)