Van Daam v. Hegstrom

744 P.2d 269, 88 Or. App. 40

• Court: Court of Appeals of Oregon
• Decided: October 21, 1987
• Docket: 85-2146; CA A40742
• Status: Published

Opinions

WARREN, J.

Plaintiffs in this class action are parents of children who have been found to be within the jurisdiction of the juvenile court because they committed acts which, if committed by an adult, would have been violations of criminal law, ORS 419.476(1) (a), and who have been committed to a secure training school or to a temporary work and training camp.¹ The state has sought to enforce plaintiffs’ statutory obligation to support their children, ORS 109.010, by charging them for the care of the children while they are in secure custody. Defendants are the administrators of the state agencies involved in caring for the children and in enforcing the support obligation. Plaintiffs seek a declaration that the policy of charging for the support of children in secure custody violates various state and federal constitutional provisions and an injunction requiring defendants to stop the practice and to refund money already collected. The trial court granted summary judgment for defendants and dismissed the case. We hold that one apparent feature of the state’s present program violates the state constitution.

When a juvenile court judge commits a child to secure custody but does not enter a support order under ORS 419.513, the Support Enforcement Division of the Department of Justice determines the amount which the parents should pay for the child’s maintenance and issues an appropriate order. See ORS 416.400 to ORS 416.470. The amount of the order is based on the parents’ ability to pay, but in no case is it greater than the maximum charged parents of children who are in foster care. That maximum is equal to the amount which the state pays foster parents for the care of foster children and is considerably less than the actual cost of supporting the child in secure custody, exclusive of education, security personnel and capital outlays.²

Defendants assert that the parents’ liability is derived from their general duty, codified in ORS 109.010, to support their minor children, and that ORS 416.400 to ORS 416.470 establishes the procedure for enforcing that duty.³ Plaintiffs make a number of attacks on the constitutionality of requiring them to fulfill their obligation to support their dependent children while those children are in secure custody. Most of the arguments do not merit discussion. Some are based on defendants’ former policy of charging the full cost of institutional care; others, such as the claim that defendants’ present policy is a bill of attainder or works a corruption of blood and forfeiture of estate, are patently frivolous. The only arguments worth discussing are that the practice violates the equal privileges and immunities provisions of Article I, section 20,⁴ of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment. We turn first to the state constitution.

Article I, section 20, prohibits the state from granting to any person or class of persons privileges or immunities which are not available to all on the same terms. It is directed against state favoritism. State v. Clark, 291 Or 231, 236-237, 630 P2d 810, cert den sub nom Clark v. Oregon, 454 US 1084 (1981). Plaintiffs do not assert that the state has discriminated against them as individuals or that it administers the challenged policy so haphazardly as to be tantamount to discrimination. See City of Salem v. Bruner, 299 Or 262, 269-270, 702 P2d 70 (1985); State v. Freeland, 295 Or 367, 667 P2d 509 (1983); State v. Clark, supra. Rather, they attack the state’s enforcement of the support obligations of the class of parents of children committed to secure custody by juvenile court order. In order to succeed, they must show that there is another group which is granted a privilege or immunity which their group is not granted and that the distinction between the classes is either impermissibly based on persons’ immutable characteristics, see State ex rel Adult & Fam. Ser. v. Bradley, 295 Or 216, 666 P2d 249 (1983); Hewitt v. SAIF, 294 Or 33, 653 P2d 970 (1982), or has no rational foundation in the light of the state’s purpose. See Mid-County Future Alt. v. Port. Metro. Area LGBC, 82 Or App 193, 199-200, 728 P2d 63 (1986), rev dismissed 304 Or 89, 742 P2d 47 (1987); Baillie v. State Board of Higher Educ., 79 Or App 705, 708-709, 719 P2d 1330 (1986).⁵

We have some difficulty in determining exactly what plaintiffs believe is the improper classification under the state constitution. Their arguments generally ignore both the statutory obligation of parents to support a dependent child and the ability of the juvenile court under ORS 419.513 to enforce that obligation by a direct order. They also fail to recognize that parents with children in foster care must pay child support and that defendants seek to collect only what plaintiffs would owe if their children were in foster care. It is thus difficult to understand plaintiffs’ argument that the state is levying a special tax on them to support institutions which have public rather than private functions.⁶ With one exception, plaintiffs simply do not compare themselves to other classes which they allege receive greater privileges or immunities than they do. Without that, they do not state an Article I, section 20, claim of improper classification.

Plaintiffs’ one compelling objection, raised generally in their complaint and specifically, though cryptically, in their trial memorandum, is that defendants do not attempt to recover support from parents of children who were convicted of a crime in adult court after a remand from juvenile court but who are then placed in juvenile, rather than adult, secure custody.⁷ See ORS 419.533. Those children may be as young as 15; although they have been convicted of crimes, they are otherwise indistinguishable from children placed in secure custody by direct juvenile court action. Both groups live under the same conditions and receive the same treatment. The only difference is that remanded children may be transferred to an adult institution after they turn 18.

If the state does not require parents of unemancipated remanded children to support their children while they are in secure custody, it has provided those parents an immunity not provided to members of plaintiffs’ class. The distinction between parents of remanded children and parents of nonremanded children exists independently of the statutes which plaintiffs challenge. The two classes are thus subject to Article I, section 20, scrutiny. We cannot find any rational basis for the distinction in either the state’s penological purposes or its interest in enforcing the parents’ duty of support. The state does not suggest any rational basis for it. We hold that, if plaintiffs’ claim is proven, defendants have violated Article I, section 20, by giving parents of remanded children an immunity which is not available to parents of nonremanded children.

Plaintiffs also argue that defendant’s policy violates federal equal protection requirements. We need not consider the federal constitutional validity of the distinction which we hold violates Article I, section 20; we perceive no other potental violation of the Fourteenth Amendment. Contrary to plaintiffs’ position, there are no suspect classifications; assuming that maintaining the family unit is a fundamental right, the challenged policy does not impair it other than as a necessary consequence of implementing unchallenged juvenile court jurisdiction over the children. There is a clear governmental interest in enforcing a parent’s support obligation, and defendants do not seek to collect more than the amount of that obligation. Plaintiffs rely heavily on In re Jerald C., 36 Cal 3d 1, 678 P2d 917, 201 Cal Rptr 342 (1986), but neither the plurality nor the concurring opinion in that case convinces us that there is any federal impropriety in Oregon’s statutory scheme or in defendants’ actions. We therefore reject plaintiffs’ federal arguments.

Reversed and remanded for further proceedings not inconsistent with this opinion.

1 We refer hereafter to these facilities as “secure custody.”

2 The state formerly charged parents the full cost of supporting a child in secure custody. Our decision is predicated on its present practice of charging parents of institutionalized children on the same basis as those of children in foster care.

3 Plaintiffs do not question the statutory authorization for charging them for the support of children in secure custody.

4 Article I, section 20:

“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.”

5 A class which was created by the very statute under attack and which is not otherwise identifiable as a separate class is not a class for Article I, section 20, purposes. Wilson v. Dept. of Rev., 302 Or 128, 131-132, 727 P2d 614 (1986); State v. Freeland, supra, 295 Or at 375 n 7.

6 Other arguments, such as those concerning the costs of maintaining homes to which their children can return after leaving custody or the cost of travelling to visit the children while they are in state institutions, raise issues which are properly for legislative or administrative, not judicial, consideration.

7 After oral argument, defendants received permission to supplement the record with two affidavits which suggest that they in fact do collect support payments from parents of children remanded to adult court on the same basis as from parents of children committed to secure custody by a juvenile court. Those affidavits were not before the trial court. Thus, at the time summary judgment was granted, an issue of fact as to that question existed and summary judgment was improper. Plaintiffs have not had an opportunity to submit material on that point. This is a matter which the parties can resolve in the trial court on remand.