John Daniel Dawson, a minor, claiming that his father's death entitles him to an annuity from the survivors' benefit reserve fund of the Public Employees' Retirement Association (PERA), appeals a judgment of the district court affirming a decision of the PERA Retirement Board (Board) denying his claim.
Prior to his death on January 30, 1978, John's father, Daniel W. Dawson, was employed as an assistant principal in the Glenwood Springs Roaring Fork School District and was a contributing member of PERA. Dawson was divorced from Geraldyne McKelvey, John's mother, on February 9, 1970. Incorporated into the divorce decree was a stipulation granting Geraldyne legal custody of John, who was then four years old, with reasonable rights of visitation in Dawson. Dawson was ordered to pay child support in the amount of $125 per month, and support payments were timely made up to the date of Dawson's death, when John was twelve years of age. After his divorce from Geraldyne, Dawson married Audrey L. Dawson, with whom he had a child, Sarah Marie Dawson, and also adopted Audrey's daughter, Beth LaRue Dawson.
Following Dawson's death, his widow Audrey and his former wife Geraldyne filed claims with PERA for survivors' annuities, Audrey filing on behalf of herself and her two daughters and Geraldyne on behalf of John. PERA determined that Audrey was eligible for an annuity pursuant to section 24-51-805, C.R.S.1973 (1982 Repl.Vol. 10), which authorizes the payment of an annuity to a widow who has in her care the decedent's unmarried and unemancipated children; it, however, denied Geraldyne's claim on behalf of John by virtue of section 24-51-806, C.R.S.1973 (1982 Repl.Vol. 10), which authorizes an annuity to a dependent child only when there is no annuity payable to a surviving spouse. In effect, PERA concluded that under the statutory scheme the widow and children's annuity payable to Audrey operated to preclude the payment of an annuity to John.
John requested the Board to reverse the denial of his claim, arguing that a statutory construction authorizing the payment of an annuity to children of a subsequent marriage while excluding children of a prior
In our view the Board correctly construed the PERA statutes in denying John's claim. The statutes governing the PERA survivors' benefit reserve fund, sections 24-51-801 to 24-51-807, C.R.S.1973 (1982 Repl.Vol. 10), set forth express legislative priorities among three classes of potentially surviving dependents. The first priority (the widow's annuity) is accorded to the surviving spouse.
The next priority is granted to dependent children. Under section 24-51-806 (the children's annuity), an unmarried and unemancipated child is eligible for an annuity only if "no annuities have been payable under section 24-51-804 or 24-51-805," which are the statutory provisions creating the widow's annuity and the annuity for a widow with dependent children.
The last group of potential surviving claimants consists of surviving parents. Section 24-51-807 (the dependent parents' annuity) authorizes the payment of a survivor's annuity to any "parent who was dependent upon [the decedent] for at least fifty percent of his support," when "no annuities have been or will be paid under sections 24-51-804 to 24-51-806 ...."
As this examination of the legislative system of priorities makes clear, the statutory annuity scheme mandates the payment of survivors' benefits to Audrey to the exclusion of other claimants. Audrey is eligible for the widow and children's annuity under section 24-51-805 because she is a surviving spouse who has in her care the decedent's unemancipated children. The only statutory authorization for payment of an annuity to John is section 24-51-806, which authorizes an annuity only when "no annuities have been payable under section 24-51-804 or 24-51-805." Because an annuity is payable to Audrey under section 24-51-805, no payment may be made under section 24-51-806, and, therefore, there is no statutory authorization for the payment of an annuity to John.
John argues that the statutory language in section 24-51-806, i.e., "no annuities have been payable under section 24-51-804 or 24-51-805," was inserted into this section solely to prevent a double recovery and was not intended to vitiate an annuity to a child not living with the surviving spouse merely because the surviving spouse is also eligible for an annuity. We disagree with this argument. The statutory scheme evidences an overriding legislative intent to make the widow and children's annuity of section 24-51-805 exclusive of other statutory annuities as long as the conditions of eligibility for the widow and children continue to exist.
Similar exclusionary language to that of section 24-51-806 is contained in section 24-51-807, which authorizes the payment of an annuity to qualified dependent parents when "no annuities have been or will be paid under sections 24-51-804 to 24-51-806." This latter language is clearly not necessary to prevent double recovery by parents, who are not eligible for an annuity under any other section. We therefore conclude that the statutory language limiting the children's annuity of section 24-51-806 to situations where "no annuities have been payable under section 24-51-804 or 24-51-805" was not designed to prevent double recovery, but instead was intended to create
Legislative intent is the touchstone of statutory interpretation. When the meaning of a statute is plain and unambiguous, a court cannot substitute its opinion as to how the law should read in place of the law already enacted. E.g., People in the Interest of Maddox v. District Court, 198 Colo. 208, 597 P.2d 573 (1979); Civil Service Employees Association v. Love, 167 Colo. 436, 448 P.2d 624 (1968). That the statutory scheme might not be a paradigm of equity is not to say that we can ignore the clear import of the unambiguous statutory language. The legislative intent, as expressed in the statutory scheme for survivors' benefits, is to prohibit the payment of the children's annuity of section 24-51-806 to John as long as the surviving spouse is eligible for the widow's annuity under section 24-51-804 or the widow and children's annuity under section 24-51-805. The district court, therefore, did not err in upholding the Board's construction of the PERA annuity statutes.
John also argues that a construction of the statutory scheme which precludes his receipt of the children's annuity of section 24-51-806 and simultaneously permits the widow and children's annuity for Audrey and the decedent's children violates equal protection of the laws. U.S. Const.Amend. XIV; Colo. Const. Art. II, Sec. 25. We are unpersuaded by his argument.
The first question in resolving an equal protection claim relates to the appropriate standard of judicial scrutiny. When a suspect classification is established or a fundamental right is implicated, a standard of strict judicial scrutiny applies. The government in such a case must establish that the statutory classification is necessarily related to a compelling governmental interest. E.g., San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); People v. Chavez, 629 P.2d 1040 (Colo.1981); Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884 (1980). An intermediate standard of scrutiny has been applied to some classifications, notably illegitimacy and gender. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). To withstand constitutional challenge under this intermediate standard, a statutory classification must be substantially related to the achievement of important governmental objectives. E.g., Craig v. Boren, supra; R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980). In the absence of a suspect classification, an infringement upon a fundamental right, or a classification triggering an intermediate standard of scrutiny, a statutory classification will be upheld as long as it has some reasonable basis in fact and bears a reasonable relationship to a legitimate governmental interest. See, e.g., San Antonio School District v. Rodriguez, supra; Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); Heninger v. Charnes, supra; Mosgrove v. Town of Federal Heights, 190 Colo. 1, 543 P.2d 715 (1975).
John first argues that the standard of strict judicial scrutiny should apply in evaluating the PERA survivors' annuity statutes because the statutory preference favoring children living with a subsequent spouse to the exclusion of children living with a divorced spouse infringes upon the public employee's right to marry after a previous divorce and adversely affects the
Nor does the statutory priority accorded to children living with the surviving spouse so affect John's asserted right to live with his natural mother as to trigger a strict scrutiny level of analysis. Although a minor child certainly may express a choice to live with one divorced parent rather than the other, section 14-10-124(1), C.R.S.1973, that right is only to express a preference. The child's choice is not conclusive of the issue of custody. In no sense, therefore, can it be argued that the child's choice as to a custodial parent amounts to a fundamental constitutional right. Moreover, the mere fact that the statutory scheme accords a priority in survivors' benefits to the surviving spouse having the decedent's surviving children in her care is not tantamount, in our view, to an actual impairment of the child's relationship to his natural mother or the living arrangements between these two family members. Accordingly, the appropriate standard of review in this case is the "rational basis standard" of equal protection analysis—that is, whether the statutory classification has some rational basis in fact and is reasonably related to a legitimate governmental interest.
It must be borne in mind that under this relaxed standard of judicial scrutiny there is a presumption of constitutionality, and the burden is on the party attacking the statute to establish its unconstitutionality beyond a reasonable doubt. E.g., Bollier v. People, 635 P.2d 543 (Colo.1981); People in the Interest of C.M., 630 P.2d 593 (Colo.1981); Colorado Auto & Truck Wreckers Association v. Department of Revenue, 618 P.2d 646 (Colo.1980); Harris v. Heckers, 185 Colo. 39, 521 P.2d 766 (1974). Furthermore, with respect to legislative classifications, a statute is not constitutionally suspect simply because distinctions are not made with "mathematical nicety" or because they result "in some inequality." Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 501-02 (1970). The problems of government are practical ones and often justify, if not require, a rough accommodation of variant interests. See Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976).
John argues that there is no rational basis for distinguishing between children of a prior marriage and children of a subsequent marriage in providing for survivors' annuities. In our view, he misconceives the nature of the statutory classification. The statutory scheme does not distinguish between groups of children on the basis of
Once it is recognized that the statutory classification distinguishes between surviving family members in the decedent's immediate household and non-household survivors, the rational basis for the distinction becomes clear. Surviving family members who were residing in the decedent's immediate household at the time of his or her death would most likely be dependent upon the decedent for support, not only financial, but also in terms of household and related services. In contrast, dependent children and parents who were not members of the decedent's immediate household more probably than not either would have some degree of independent support or would otherwise stand in a more attenuated dependency relationship with the decedent. We cannot say that there is no reasonable basis in fact for the statutory classification between dependents who are likely members of the decedent's household at death and those who are not.
Nor can we conclude that the statutory distinction lacks a reasonable relationship to a legitimate governmental interest. While the statutes governing the PERA survivors' benefits do not set forth an express legislative purpose, the state's interest in providing the dependents of public employees with some maintenance in the event of the employee's death is quite obvious. This interest, while undeniably a legitimate one, is tempered by a corresponding governmental interest in preserving resources and protecting the fiscal integrity of the survivors' benefit reserve fund. See Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977). The establishment of priorities for survivors' benefits according to the degree to which the family member was directly dependent on the decedent reasonably serves the legitimate governmental interest in providing for dependent survivors in a manner consistent with both probable need and fiscal integrity. The PERA annuity statutes, therefore, do not violate equal protection of the laws.
The judgment is affirmed.