DEBRA LEE ANDERSON, Pеtitioner and Appellant, v. SOUTH DAKOTA RETIREMENT SYSTEM, Respondent and Appellee.
#28660-a-DG
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
OPINION FILED 02/20/19
2019 S.D. 11
THE HONORABLE GORDON D. SWANSON Judge
ARGUED JANUARY 8, 2019
JAMES D. LEACH Rapid City, South Dakota Attorney for petitioner and appellant.
ROBERT B. ANDERSON JUSTIN L. BELL of May, Adam, Gerdes and Thompson, LLP Pierre, South Dakota Attorneys for respondent and appellee.
OPINION
[¶1.] Debra Lee Anderson and Deborah Cady were committed partners who worked for the Raрid City Police Department (RCPD). Cady retired from the department in May 2012. The couple married on July 19, 2015. Cady passed away on March 10, 2017. Upon Cady‘s passing, Anderson applied for survivor spouse benefits under Cady‘s retirement plan with the South Dakota Retirement System (SDRS). The SDRS denied Anderson‘s application claiming Anderson and Cady were not married at the time of Cady‘s retirement and Anderson did not meet the definition of a “spouse” needed to qualify for survivor benefits. Anderson appealed to the South Dakota Office of Hearing Examiners (OHE) and then to the circuit court, which both affirmed the SDRS. Anderson now appeals the order of the circuit court. We affirm.
Facts and Procedural History
[¶2.] The facts of this case аre undisputed. Cady was employed by the RCPD. She was enrolled in the SDRS in 1986 and continued her enrollment for 26 years until her retirement on May 1, 2012. Throughout her service, Cady advanced from sergeant to lieutenant and finally served as one of two captains who reported directly to the chief of police. Cady attained the highest rank of any fеmale officer in the history of the RCPD at the time.
[¶3.] Cady met Anderson in 1986. The two became good friends and eventually professed their love for one another. The couple started living together in July 1988. Anderson described their relationship as “wonderful” and considered Cady to be her “soul mate.” Anderson stated that the couple built and shared а home together, made decisions together, and supported each other‘s career and personal choices. They considered themselves to be married, even though they were not legally married at the time.
[¶4.] Anderson was also employed by the RCPD and worked as commander of the uniform division and in supervisory roles. Twо chiefs of police under whom Cady and Anderson served stated that the couple was well known in the RCPD to be committed partners. According to the late Craig Tieszen, RCPD Chief of Police from 2000–2007, there were no issues within the department about accepting Cady and Anderson‘s relationship. Current Chief of Police Karl Jegeris testified that since he began working at the RCPD in 1995, it was very clear that the two were a committed couple and had the same relationship as anyone who was married. Jegeris went so far as to state that “[o]ur department considers them a married couple, period, end of story. I speak on behalf of the department.” Anderson also agrеed that she and Cady were a well-known couple for many years in the RCPD.
[¶5.] In 2004, Cady was diagnosed with breast cancer. Anderson stated that she assisted Cady through the difficult ordeal, which included surgery, chemotherapy, a period of remission, the return of cancer and more chemotherapy, and the decision to end chemotheraрy. Anderson stated that during this period, she and Cady were
[¶6.] Anderson testified that she and Cady had spoken about getting married both when Massachusetts legalized same-sex marriage in 2003, and when Iowa legalized same-sex marriage in 2009. In 2009, Cady surprised Anderson with matching rings. Anderson testified that the couple had “agreed that [they] would marry. But for [them] it was going to have to be when it was either recognized by the State of South Dakota, which is where [they] resided and worked, or by the Federal Government, you know, as a nation as a whole.” Andеrson stated that she and Cady felt this way because they were employed in law enforcement. Anderson noted that as police officers, she and Cady took an oath to “the U.S. Constitution, the Constitution of the State of South Dakota, and the laws. And at that time, you know, South Dakota wouldn‘t recognize it.” In Anderson‘s view, “[e]ven if [they] went to Iowa and would have married, it still wouldn‘t have been recognized in the State of South Dakota.”
[¶7.] In 2015, the United States Supreme Court handed down its decision in Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). In Obergefell, the Court stated:
[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.
Id. at ___, 135 S. Ct. at 2605-06. Twenty-three days after Obergefell was decided, Anderson and Cady were married in Las Vegas, Nevada on July 19, 2015.
[¶8.] On March 10, 2017, Cady passed away after her long battle with breast cancer. On March 20, 2017, Anderson applied for survivor benefits through the SDRS. On April 24, 2017, thе SDRS denied Anderson‘s application via a letter, stating Anderson and Cady were not married at the time of Cady‘s retirement and Anderson did not meet the definition of a “spouse” to qualify for survivor benefits. Anderson replied to the SDRS by letter on July 7, 2017. The reply was treated as an appeal and a hearing was held before the OHE on October 31, 2017.
[¶9.] On Dеcember 1, 2017, the OHE issued a written decision, including findings of fact and conclusions of law, affirming the SDRS‘s decision to deny Anderson survivor benefits. On December 4, 2017, Anderson made a motion proposing supplemental findings of fact and conclusions of law, which the OHE rejected. Anderson appealed the OHE‘s decision to affirm the SDRS‘s decision to the cirсuit court. On June 14, 2018, the circuit court entered a memorandum decision and order affirming the decision of the OHE. Anderson now appeals the order of the circuit court. We combine and restate the issues raised as follows: Whether the circuit court erred by denying survivor spouse benefits to Anderson.
Standard of Review
[¶10.] The central issue in this appeal is the propriety of the adjudication of Anderson‘s right to survivor benefits, which adjudication occurred through the SDRS and the OHE, two administrative agencies. This appeal is therefore governed by South Dakota‘s Administrative Procedures Act,
Questions of law are reviewed de novo. Dakota Trailer Mfg., Inc. v. United Fire & Cas. Co., 2015 S.D. 55, ¶ 11, 866 N.W.2d 545, 548. Matters of reviewable discretion are reviewed for abuse.
SDCL 1-26-36(6) . The agency‘s factual findings are reviewed under the clearly erroneous standard.SDCL 1-26-36(5) . The agency‘s decision may be affirmed or remanded but cannot be reversed or modified absent a showing of prejudice.SDCL 1-26-36 .
Analysis & Decision
[¶11.]
Upоn the death of a foundation retiree or any foundation member who has reached normal retirement age, the surviving spouse is eligible to receive a benefit, payable in monthly installments, equal to sixty percent of the retirement benefit that the foundation member was receiving or was eligible to receive at the time of death.
[¶12.] The OHE and the circuit court affirmed SDRS‘s rejection of Anderson‘s application for survivor benefits because: (1) Anderson and Cady were not married at the time of Cady‘s retirement; and (2) Anderson did not meet the definition of a “spouse” under
[¶13.] As to the retroactivity of Obergefell, Anderson first cites Harper v. Virginia Dep‘t of Taxation, 509 U.S. 86, 97, 113 S. Ct. 2510, 2517, 125 L. Ed. 2d 74 (1993). In Harper, the Supreme Court adopted a rule of retroactivity applying to the Court‘s decision on federal laws, stating:
When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule. . . . [W]e now prohibit the erection of selective temporal barriers to the application of federal law in noncriminal cases. In both civil and criminal cases, we can scarcely permit “the substantive law to shift and spring” according to “the particular equities of individual parties’ claims” of actual reliance on an old rule and of
harm from a retroactive application of the new rule.
Id. at 97, 113 S. Ct. at 2517 (citations omitted). Anderson also cites a number of cases and secondary sources that support the retroactivity of Obergefell. See, e.g., Ranolls v. Dewling, 223 F. Supp. 3d 613, 622 (E.D. Tex. 2016); Steven A. Young, Note, Retroactive Recognition оf Same-Sex Marriage for the Purposes of the Confidential Marital Communications Privilege, 58 Wm. & Mary L. Rev. 319, 336 (2016) (“Although the Court does not explicitly state that same-sex couples affected by pre-Obergefell law are entitled to retroactive application of post-Obergefell law, it is the logical result of the ruling.“); Lee-ford Tritt, Moving Forward by Looking Back: The Retroactive Application of Obergefell, 2016 Wis. L. Rev. 873, 877 (2016).
[¶14.] The parties do not sеem to contest the retroactive application of Obergefell. In its brief, the SDRS suggests that Obergefell may be retroactive. However, the SDRS claims that the question of retroactivity is not controlling, here, because, as both the OHE and the circuit court reasoned, the only question in this case is whether Anderson or this Court may “create a marriage post hoc desрite the fact that Anderson and Ms. Cady never availed themselves of the marriage laws in another state that recognized same-sex marriage.”
[¶15.] In its decision, the OHE noted that in other jurisdictions where retroactivity has been recognized, the retroactive ruling only affects same-sex marriages that were already solemnized in any manner or if the state recognizes common-law marriages. See generally, Schuett v. FedEx Corp., 119 F. Supp. 3d 1155 (N.D. Cal. 2016) (solemnized marriage); Hard v. Attorney Gen., 648 Fed. Appx. 853 (11th Cir. 2016) (solemnized marriage); Dewling, 223 F. Supp. 3d 613 (common-law marriage). The OHE reasoned that in order for Obergefell to apply retroactively, there must have been a previously unrecognized marriage between the couple that would have been recognized but for the law against same-sex marriages.
[¶16.] The circuit court agreed with the reasoning of the OHE and found it significant that Anderson and Cady chose not to marry in another state prior to Obergefell. The circuit court stated:
Had they [married in аnother state], and assuming retroactive application of [Obergefell], Anderson would presumably prevail here. However, [Anderson and Cady] chose not to take this course of action (for cited reasons that seem plausible and laudable); instead waiting until an option to their liking—going out of State to wed after the Supreme Court said hоme States must recognize such a marriage—became available. Similarly, if they had sought a marriage license in South Dakota, had it denied based on the existing State laws, successfully challenged that denial in the courts as the Plaintiffs in other States did, then married in South Dakota, Anderson would be entitled to survivor benefits. However, [Anderson and Cady] аlso chose not to pursue this avenue. This Court agrees with the simple proposition advanced by SDRS and held by the [OHE]: that even retroactive application of Obergefell cannot create a marriage where none was ever solemnized according to any State‘s law at the time of the measuring event (Cady‘s retirement).
[¶17.] In casеs cited by Anderson, those courts only applied Obergefell retroactively to a solemnized marriage or to a common-law marriage recognized under state law. Here, assuming without deciding that Obergefell applies retroactively, there was no marriage, act of solemnization, or common-law marriage to refer back to.
[¶18.] But Anderson claims that but for South Dakota‘s unconstitutional prohibition of same-sex marriage, she and Cady would have been married before the time Cady retired. Anderson emphasizes their long-time affection and commitment to one another and their desire to comply with South Dakota‘s constitution given their role as police officers. Anderson and Cady‘s commitment to one another and honorable intentions are not disputed by the parties. But the fact remains that neither Anderson nor Cady made any actual attempt to marry before the date of Cаdy‘s retirement. Anderson‘s argument therefore, in essence, boils down to an attempt to establish a common-law marriage between her and Cady. South Dakota, however, does not recognize common-law marriage, requiring that a marriage “be solemnized, authenticated, and recorded.”
[¶19.] Because Anderson and Cady made nо attempt to marry one other, and because South Dakota does not recognize common-law marriage, the issue in this case is resolved as a matter of statutory interpretation.
[¶20.] Anderson further argues that the denial of survivor benefits constitutes disсrimination against same-sex couples on the basis of marriage. However, we have previously held in State Div. of Human Rights, ex rel. Ewing v. Prudential Ins. Co. of Am., 273 N.W.2d 111, 115 (S.D. 1978), that the denial of employer administered benefits on the basis of marital status does not constitute discrimination. In that case, Ewing, an unmarried woman with no dependents, filed a claim with Prudential for maternity benefits in order to pay for the medical expenses from the birth of her first child. Id. at 112. Ewing‘s Prudential policy, however, only provided maternity benefits to those who listed a spouse as a dependent and paid an increased premium. Id. Her claim was therefore denied. Id.
[¶21.] Ewing filed a complaint with South Dakota‘s Human Rights Commission arguing that because “marriage is not a prerequisite fоr pregnancy, [the Prudential] policy discriminate[d] against unwed mothers and married women who for various reasons would not list their husbands as dependents and that such denial of maternity benefits constituted sex discrimination in employment and public accommodations.” Id. The Commission found that Ewing had been illegally discriminated against on the basis of sex, but thе circuit court reversed. Id. at 112-13. We held that Ewing, as a single woman, was not discriminated against on the basis of gender for being denied pregnancy benefits when she had a child. Id. at 115. This was because the only way for any single employee to obtain pregnancy benefits was to be married, declare a spouse as a dependent, and pay an additional premium.* Relying
[¶22.] The same logic applies here.
[¶23.] For the reasons stаted above, the circuit court did not err in affirming the SDRS‘s and the OHE‘s decisions to deny Anderson survivor benefits.
[¶24.] JENSEN, Justice, and ELSHERE and SHELTON, Circuit Court Judges, and SEVERSON, Retired Justice, concur.
[¶25.] ELSHERE, Circuit Court Judge, sitting for KERN, Justice, disqualified.
[¶26.] SHELTON, Circuit Court Judge, sitting for SALTER, Justice, disqualified.
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