Manistee Bank & Trust Co. v. McGowan

Manistee Bank v McGowan 1975] MANISTEE BANK & TRUST COMPANY MсGOWAN 8). (Calendar 8, Argued May No. Docket 54961. No. Decided 8, 1975. September Company, Bank & Trust of administrator Williams, brought against estate of Mardelle H. an action wrongful William L. G. McGowan and Walter Pamame for trial, plaintiff death in an automobile accident. Before chal- lenged constitutionality guest passenger statute, of the 257.401; 9.2101, requires MCLA MSA insofar as it a any injury, to demonstrate that death or loss was gross negligence caused or willful and wanton miscon- vehicle, operator duct of the owner or of the motor on the ground equal protection that the statute denies of the laws. The Court, Wickens, J., rejected Manistee Circuit Charles A. challenge constitutional a of and verdict no cause action of was against plaintiff. appeal prior returned Leave to to decision of Appeals granted. Levin, opinion J., Court of was In an J., Williams, Kavanagh, J., concurred, which T. G. C. it was held that the statute is unconstitutional as violative of the Equal Michigan Protection Clause Constitution 1963: Clause, Equal Clause, 1. The Protection the Due like Process guaranty governmental is a controls reasonableness of action. isWhat is in reasonable each instance a matter of judgment, analysis, judgment, in the final a value and should recognized upholds as such. Whether the court or invalidates statute, making judgments. it is value equal protection 2. There are two versions the traditional applied test to classifications where a interest” "fundаmental [1, [2, 3, [5 [3, ^[4] [14, — Constitutionality of automobile 4, 6-10, 12] 16 Am Jur 210 et et 21] 15-18, 20, 8 Am Jur seg., 506 16 Am Jur seg. 13,15, Am Jur 2d, References et 2d, 22] Constitutional Law 17-20, seg., 2d, Automobiles 16 Am Jur 2d, Constitutional 550. 22] Constitutional for Points 16 Am Jur 2d, Constitutional Law 259 et §§ Highway statutes. Ill ALR 1011. in Headnotes 2d, Law 101 et §§ Constitutional Law 419 282, §§ Traffic 283. Law 550-553.. seg., § §§ seg., 472. 297. 168,-169, §§ 394 "any conceivable state is the not involved. One of these finding support of unconstitu- facts” which will standard tionality; to the and substantial relation is the “fair the other standard, invites the object legislation” which court to the a classification bears real examine whether and determine perceived purposes. choice of test is The a relation to the challenged statute judgment, where the matter and at least of general exception and the to a rule carves out discrete a experimental, longer statutory exception the substantial- is no applied. possible relation-to-the-object be Where all test should longer developed and it can no be claimed rationales have been experimental legislation and as such entitled to is that the legislative judgment, court not dis- a should deference the to perhaps challenge hypothesis on the miss a constitutional Legislature for the law. also had reasons the other injury, recompense negligently deny guests for To inflicted 3. justified a reasonable means to death or as loss cannot collusion, perjury gratitude, prevent promote hospitality, foster fraud, protect generous premiums, or or reduce insurance guests by ungrateful litigation or con- drivers from vexatious niving hitchhikers. liability exception guest passenger the to owners’ 4. The statute unconstitutional. J., J., Coleman, Fitzgerald, in J. W. M. S. a dissent which plaintiff

joined, the has failed to demon- affirm because would arbitrarily guest Legislature the that the acted strate relationship permissible passenger no rational act bears statutory objectives, the act does not come within the and accepted scrutiny” generally purview of test. The the "strict analysis legislative of of review the classifications standard suspect involving fundamental interests or criteria is rationally legitimate furthers a state the classification whether proceed purpose should with restraint or interest. The Court nullify The most obvious and deference when asked to statutes. act, guest passenger minimize and for a collusion reasons driver, "hospitality” by promote of a and out these fraud and to limits, keep premiums within are still insurance reasonable determination; validity legislative of is for the which reasons Legislature gathering for the data and has the means public policy upon background and which to base material act, modification, repeal, subsequent and or ratification of the Legislature. This case sets the the Court should defer to legislation: scrutiny pattern with substitution for future of no abolished, easy it for those too to override of standards will be prevailing opinion Legislature. does to the The violence Bank v McGowan separation powers places power doctrine of of too much judiciary.

Opinion of the Court Passenger 1. Automobiles —Guest Act —Constitutional Law— Equal Protection. act, passenger statutory exception general a to the rule statutory liability negligent driving, common law and deprives equal unconstitutional because protection (Const Michigan of the laws under the Constitution 257.401). 1, 2; art MCLA § 2. Constitutional Law —Statutes—Judicial Restraint. accept philosophy judicial One can restraint which lies explicating heavy behind rules burden that must be borne constitutionality one who assails the presumptively statute, incontestably valid recognize wise and still responsibility of the courts to strike the statute where the Legislature’s judgment of the wisdom of a statute is shown to legislative power.

conflict with a constitutional limitation on 3. Constitutional Statutes—Classification—Equal Protec- Law — tion —Due Process. Equal Clause, Clause, Protection like the Due Process is a guaranty governmental that controls the reasonableness of action; statutory one, a classification must be a reasonable object legisla- it must bear a reasonable relation to the tion. 4. Constitutional Statutes—Classification—Equal Protec- Law — tion. statutory What is a reasonable classification is in each instance a judgment, upholds value whether the court or invalidates the statute. 5. Constitutional Law —Statutes—Classification—Substantial Relation-to-the-Object Test. challenged exception Where a statute carves out a discrete to a general statutory exception longer experi- rule and the is no mental, substantial-relation-to-the-object ap- test should be plied statutory to determine whether the classification is uncon- stitutional. 6. Constitutional Law —Statutes—Classification. challenged statutory Where a classification scheme creates a exception general discrete to a rule and has been enforced for a 394 likely long period all the rationales sufficiently time so that of developed, support have been the court in its be advanced fully and determine rationales whether should examine those sound, they a constitutional not dismiss chal- are and should Legislature perhaps lenge hypothesis also on the had other reasons for the law. Passengers

7. —Statutes—Classification. Automobiles —Guest justifications Accepting arguendo principal offered to that the two statutes, protection hospitality support guest passenger lawsuits, purposes, are valid it and the elimination of collusive necessary rational remains under the traditional basis even test to the classification scheme worked determine whether reasonable; enough merely it is is not statute purposes, suggest possible legislative but a court must examine between the classification and whether there is some relation purposes it reasonable. those and whether Passengers 8. Automobiles —Guest —Classification—Reasonable- ness —Collusion. guest passengers protection deprive To entire class of injury against negligently or death because some inflicted may and a members of the class be friends relatives may brought presents a classic case of an collusive lawsuit scheme, is, impermissibly classification overinclusive imposes a statute’s classification a burden scheme which upon range than are included in the a wider of individuals aims; the mischief at which the law class of those tainted with conceding, arguendo, higher that there is a risk of collusion in cases, disproportionate, and therefore unreasonable, large recovery generality to bar of cases a few successful frauds.

forestall Passengers —Hitchhikers—Manufactured 9. Automobiles —Guest Claims. today any danger manu- no evidence to motorists of There is justification protection claims hitchhikers as for the factured by guest passenger generous motorists statute. Passengers Hospitality—Group Trans- 10. Automobiles —Guest — portation. guest passenger presence of does not or absence a statute The together in an of friends and relatives to ride affect the decision hitchhiker; pick up the decision of a driver to automobile or guest passenger hospi- not chill the absence of statute would Bank v McGowan tality group trаnsportation any or more or less than its exis- promotes activity. tence such Passengers 11. Automobiles —Guest —Statutes—Classification— Insurance. not, more, premiums justify Lower insurance do without an essentially statutory classification; arbitrary denying pas- sengers recovery ordinary negligence reasonably for is not objective related of lower insurance rates. Passengers. 12. Automobiles —Guest deny passengers recompense To negligently automobile for justified injury, inflicted or death loss cannot be as a reasonable promote hospitality, gratitude, prevent means to foster collu- sion, fraud, perjury premiums, protect or reduce insurance or generous litigation by ungrateful guests drivers from vexatious conniving or hitchhikers.

Dissenting Opinion M. S. Coleman and J. W. Fitzgerald, JJ. Passenger

13. Constitutional Law —Automobiles—Guest Act— Statutes. abrogation guest passenger legisla- The act is a matter determination; tive to hold the act unconstitutional as a denial equal protection places power judiciary too much in the contrary separation ofpowers. to the doctrine of Classification—Equal 14. Constitutional Law —Police Laws — Protection. protection equal clause of the Fourteenth Amendment does power adoption classify not take from the state the in laws, police scope but admits the exercise of a wide regard, only discretion and avoids what is done when it any purely is without reаsonable basis and therefore is arbi- (US XIV). Const, trary Am Classification—Equal 15. Constitutional Law —Police Laws — Protection. having

A some classiSeation reasonable basis does not offend against equal protection clause of the Amend- Fourteenth merely nicety it ment because is not with made mathematical practice inequality; because results in some when the police question, classiSeation in a law is called if state of reasonably it, facts can conceived that would sustain 394 time the was enacted at the law existence of that state facts XIV). (US Const, must Am be assumed Laws —Classification—Burden 16. Constitutional Law —Police Proof. police carry law must One who assails the classiñcation upon any showing burden that it does not rest reasonable basis, essentially arbitrary. but is Equal Protection —State Action. 17. Constitutional Law — equal protection clause is under the constitutional standard rationally legiti- challenged state furthers a whether the action purpose mate or interest. state Equal of Review. Constitutional Protection —Standard 18. Law — clause, application equal protection Under the of the tradi- requires only system that a tional of review state’s be standard relationship legitimate state shown some rational to bear purposes. Scru- Constitutional Law —Statutes—Classification—Strict 19. tiny. Legislation subject scrutiny’’ to "strict when classiñcations is concern interest or are based on a сertain a fundamental race, guest passenger but the automobile criteria such as proviso legislation. not such Law —Statutes—Classification. Constitutional 20. desirable; inquire do whether a statute is wise or Courts not constitutional; misguided may the courts’ laws nonetheless rationality merely task is to determine there is some whether singled the class out. nature of Statutes—Presumptions. Law — Constitutional 21. validity Legislation presumption to a of constitutional is entitled every legislative although not enactment is immune and Supreme judicial abrogation, proceed should with Court nullify legislation; the restraint deference when asked to concerning desirability the forum for debate legislation. Passenger Law- Act —Constitutional Automobiles —Guest 22. Equal Protection —Classification. statute has not been shown The automobile equal protection guarantees of of the laws because violate the plaintiff has is rational its face and the the classiñcation on ra- fails to some failed to demonstrate the statute bear McGowan Bank v Opinion of the Court (MCLA statutory objective relationship permissible tional to a 257.401). plaintiff.

Jennings, Gockerman, for & DeVries Kelley, Attorney General, Frank Robert A. Derengoski, Joseph General, B. Bil- Solicitor Attorney Carlsen, K Assistants itzke and Carl General, for defendants.

Amicus Curiae: Kortering,

McCroskey, VanLeuven, Libner, Co- chrane & Brock. Segar Dean, Dean, Hart, C,P.

Leitson, & and Lopatin, Michigan Freedman, Miller, Bindes & for Lawyers Trial Association. Legislature provides that J. An act of Levin, permis

the owner of an automobile driven with negligently subject liability to if it is driven sion and damage injury proрerty or or death causes person. provides that neither to a the The act further injury death nor a driver is liable for

owner driving.1 guest passenger by negligent caused permits guest passenger, expressly a recover The act grossly along everyone else, for with negligent driving. But this does not save the classi- To tell a fication if it is otherwise unreasonable. person gross negligence, prove but can who cannot negligence, prove ordinary that he could have 1"Provided, however, transported person, by owner or That no guest payment operator as his for such such of a motor vehicle without against transportation damages shall have a cause of action for accident, loss, injury, operator unless for death or in case of owner or such accident shall have been caused gross negligence by or wilful operator motor misconduct of the owner or of such and wanton negligence gross wanton miscon- and unless such or wilful and vehicle injury, the action is to the death or loss for which duct contributed 257.401; brought.” MSA 9.2101. MCLA op the Court gross prove negli- recovered if had been able he consoling gence than a ma- is not much different thought person if he had rooned wings with fly. he could statutory question this us is whether before

exception general law and rule of common to the driving negligent deprives statutory liability equal protec- process of due state or Federal Consti- tion of the under the laws tutions. killed as a result of an

Mardelle Williams was was a while she accident which occurred passenger by owned defendant in an automobile McGowan. defendant Pamame and driven plaintiff, trial, administrator of the Before Williams, moved to strike of Mardelle estate tljiat relying guest passen portion of the on the answer ger exception claiming it violates the due process equal protection clauses.2 The trial it felt "bound court denied the motion because guest passen decisis and the the doctrine of stare ger been held to be constitu act has heretofore Michigan.” tional in the State of lawyer opening statement, In the for Pa- his admitted that McGowan was mame and McGowan negligence. jury guilty ordinary The returned a of of no cause of action. verdict prior granted appeal This Court leave Appeals. by the Court of decision 2 guest passenger alleged statute "in violation of Plaintiff that the protection process equal of the Fourteenth the clause and clause due I, United and Article of the Constitution of the States Amendment I, 17 of the State of Section 2 and Article Section of Constitution 1963, Michigan arbitrary in Act makes an unreasonable and of Guest law, distinction, without reasonable basis in fact or damages liability injuries to the of an and driver for and as sustained owner 'guest passenger’ in the owner’s or driver’s motor a injured by negligence persons of thе owner vehicle and all other or driver”. 663 McGowan Bank v the Court unconsti- exception guest passenger hold the

We Equal Protection as violative tutional (Const 1963, Constitution Michigan Clause 2) for trial on the 1, remand and and reverse art § damages. question

I in about enacted were Guest statutes 1930’s.3 1920’s and during the half the states 1927,4 the first state to enact Connecticut, was 1937, first state to and, guest statute5 guest its statute.6 repeal statute7 which guest Michigan

In 1929 enacted in 1931. Naudzius v this Court held constitutional 581; ALR 1189 Lahr, 216; 234 NW 253 Mich (1931). (4th Prosser, Torts, 16.15, seq.; James, p Harper Torts 950 et & §

ed), 34, p 186. § Thomp- Keasling in 1927. In v statute Iowa also enacted a upheld (Iowa, 1974), Supreme son, the Iowa 217 NW2d 687 constitutionality decision. in a 5-4 of the statute 57; 221; 117, 122, 123; Silver, L 50 S Ct 74 Ed 280 US In Silver v (1929), Supreme held that Court protection the United States 65 ALR Connecticut’s of the Fourteenth equal clause did not violate the statute Amendment. the distinction be- in Silver was not The classification examined not, passengers pay rather and those who do but who tween those passengers in other gratuitous in automobiles and those “between classes of vehicles”. one because a reasonable the classification was The Court held that transportation is as an instrument of the automobile use of "[t]he regulation”. subject peculiarly the of [state] guests paying question the distinction between whether in Silver passengers not decided the Court a reasonable one was Merlo, ground distinguished 8 Cal in Brown v on that and Silver was 212, 393-394, 4; 863-864, Rptr n 506 P2d n 106 Cal 3d 19, 23-24; (1973), Hagan, 217-218, Thompson Idaho n 4 1365, 1369-1370 P2d 1939). 6 (Supp, 540E Gen Stat § Conn PA 19. 7 1929

664 394 Mich 655 Opinion op the Court guest

No state has enacted a statute since 1939.8 in the Despite substantial criticism courts as 9 academia, as well these statutes withstood consti tutional attack until the California Supreme Court, 855, Merlo, 8 882; Brown v Cal 3d 106 212, Rptr 388, 407; (1973), Cal 231 506 P2d held guest California statute violates the equal Art 6701b Ann second ch statutes. support. 72-1, 1, Texas amended In Illinois amended its 8 28, Florida Stat, 1965, § § degree 3 Tex ^[1974] In Ch 95 (1969). repealed ten states 1967, Gen Fla 1/2, consanguinity Laws, seven others also failed to its statute to Laws, repealing its § unsuccessfully attempted 10-201 guest 63d statute to Legislature, amending statute in 1972. Law of Feb (Smith-Hurd limit affinity. Fla Stat Ann 320.59 apply only "guests” Cum Law effective garner Supp, § to relatives in the repeal to hitchhikers. Tex Rev Civ 1975). Sept 14, 1972, (1968). their necessary 1, 1973, Stat, ch Ill 216, 218, citing Special 23 Drake L Rev fn 16 ABA Comm on (1969). Reparations, Report Automobile 86 9 1971) Prosser, (4th e.g., 34, pages "See Law of Torts ed. section (The 186-187; Lascher, Hard Laws Make Bad Cases—Lots of Them Statute) (1968) 1; Gibson, California Guest 9 Santa Clara Law. Guest (1968) Passenger Discrimination 211; Note, The 6 Alberta L. Rev. Against (1966) Case the Guest Statute Mary 321; 7 Wm. & L. Rev. Note, Recovery (1962) Problems of under the Iowa Guest Statute 47 1049; Pedrick, Taken for a Ride: The Automobile Guest ‍‌‌​​​​‌‌‌‌​‌​​‌​‌‌​​​‌​‌‌‌​​‌‌‌​​‌​‌‌‌‌​​‌‌‌​​‌‌‍Iowa L. Rev. (1961) Assumption 90; Comment, Risk 22 The La. L. Rev. (1959) Analysis Reappraisal Illinois Guest Statute: An & 54 Nw. U. L. 263; (1958) Tipton, Florida’s Automobile Guest Statute Rev. 11 U. Fla. 287; Mundt, (1957) The South Dakota Guest L Rev. Statute 2 So. White, Liability 70; of an Automobile Driver to a Dakota L. Rev. Non-Paying (1934) Passenger (1966) Clark v Clark 20 Va. L. Rev. 205, 210]; Kaminetsky Cohen v N.H. 356-357 A.2d [222 (1961) (1959) 483, 487]; Stevens v 36 N.J. Stevens A.2d [176 (4th 1934) 858]; Hewlett v Schadel 355 Mich. 363 N.W. 2d Cir. [94 Merlo, supra, F.2d 502.” Brown v fn 5 fn 22. See, additionally, Note, The Present Status of Automobile Guest Statutes, Note, (1974); L Guest Statutes: Have Cornell Rev 659 Brought Road?, Recent Cases Them to the End of the 49 Notre Dame Equal (1973); Comment, Challenges Lawyer Protection to Automo- Statutes, Creighton (1974); Comment, bile Guest Judicial L Rev 432 Exemplar Proposal Activism in Tort Reform: The Guest Statute and a Comparative Negligence, (1974); 21 UCLA L Rev 1566 Recent Cases, Equal Constitutional Law—Guest Statute Violates Protection Law, (1973); Note, LND Rev 139 Torts—California Guest Equal Protection, Statute Unconstitutional Denial of L 23 Drake Rev Bank v McGowan 665 Opinion of the Court protection guarantees of the state and Federal Constitutions for the "the reason that classifica- guest tions which the statute creates between permitted recovery those denied and those for negligently injuries do inflicted not bear substan- purposes tial and rational to the relation hospitality statute’s protecting of of of the host-driver and

preventing collusive lawsuits”. decision, Since the Brown of number states constitutionality guest have considered the of their Iowa,14 statutes. held their South lead; the Delaware Court said that elimination of a Dakota19 Utah,15 Kansas,10 guest Delaware,16 declined to follow the California statutes unconstitutional. North Dakota Oregon,17 ^[11] and Colorado,18 Idaho12 Texas,13 have guest properly is statute more within the realm of legislative action.20

II principal problems judicial There arе two Equal review under the Protection Clause: The guest guest persons similarly situated”. cial denies inequities statute. Such since the Tisko decision amended its We The 13 18 12Thompson Hagan, ^[15] 11 ^[17] 14 16 10Henry Bauder, Richardson Duerst Johnson v See fn Behrns v Justice Justice v Cannon v Tisko interpretations agree and found "a statute act which recovery Kansas of the statute and the v 4. v vLimbocker, that Harrison, analysis Gatchell, —Burke, Gatchell, — Oviatt, Hassett, v Supreme v in others. Some of these decisions "unequal Hansen, permits 213 Kan is 500 SW2d 565 fn 16 325 A2d 97 217 NW2d 771 SD judicial Utah 2d 5fn — Court reviewed decisions — recovery treatment” —; Or statute crazy-quilt pattern supra. supra. Colo 751, 756; —; bootstrapping. —; —; resulting 525 P2d 99 NW2d (Del, 1974). is not a 520 P2d (Tex (ND, arising 518 P2d many P2d 536 statute. See fn 8. Civ 1974). denial of ground (1974). factual situations and from inconsistent App, 886 (1974). application clearly 367 1973). interpreting for (1974). equal (1974). voiding Texas has justice show the of the judi- Mich op the Court adjudication constitutional role of the courts in questions applied. The what and the test interrelated. choice role and which are test judicial frequently of the determinative test role. argued judicial amendment or

It has been exception abrogation Legislature inappropriate proper is the and' inquiries necessary delib- forum the erations. Legislature agree power the

All that the of is may not "[TJhat those limits be not without limits. mistaken, forgotten, Constitution is writ the (1 Cranch) Marbury Madison, 137; 2 ten.” v 5 US (1803). Ed those limits not be L And that the exceeded, sponsibility are with re the courts entrusted power nullify and the to to review legislative repugnant to the constit acts which are ution.21 actively question

The and how a court when power of review should exercise its constitutional engendered vigorous has debate.22 "legislatures to decide It exist has been said statutes, to their the wisdom of courts exist decide legislative constitutionality.”23 solution That the appears unjust undesirable, unfair, or inhumane empower the does not of itself a court override compelled by logic Marbury, the conclusion or not Whether play review of that legislative sally accepted. do a role in constitutional the courts have experience well-supported by univer- acts is now and (Bobbs-Merrill Co, Inc, 22Bickel, Dangerous The Least Branch Bickel, 1962); Scholarly Wright, Tradition and The Professor The Linde, Court, (1971); Supreme Judges, Critics and 84 Harv L Rev Shaman, Tradition, (Í972); Rule J of the End of 82 Yale L 227 Realist Adjudication: in Constitutional Toward Reasonableness Irresponsible of a Viable Judicial Review the Establishment Clause, Hastings Theory Equal Protection Const LQ (dissent). Thompson, supra, Keasling fn 4 McGowan Bank v n Opinion of the Court legislature substitute its own solution.24 A legislative classification need not drawn with "rough "mathematical accommodations nicety”;25 —illogical, may be, and unscientific” will do.26 presumption Statutes are with a cloaked consti validity. rebutting tutional The burden of presumption challenging person on stat ute. judicial accept philosophy of

One can re explicating straint which behind "rules” lies heavy must burdеn that be borne one who constitutionality presumptively assails the of a incontestably statute, valid and wise and still rec ognize responsibility "the of the courts to strike legislature’s judgment the statute” "the where the wisdom of a statute shown to conflict with a legislative power”.27 constitutional limitation on opinion equal Justice Harlan was of the that all protection applying should be resolved questions28 rationality. "nothing the standard of found He pick particular which this court out entitles activities, human characterize as them 'fundamen give protection tal,’ and them added under an unusually stringent equal protection test”. His rejection of the fundamental interest characteriza judicial tion reflected his insistence on restraint lest the Court a "super-legislature”.29 become 24 Williams, Dandridge 471; 1153; v 397 US 90 25 L S Ct Ed 2d 491 (1970). 25 Lindsley Co, 61, 78; v Natural Carbonic Gas 337, 220 US 31 S Ct (1911). 340; 369, 55 L Ed 377 26 Metropolis Chicago, 61, Co 69-70; 441, Theatre v 228 US 33 S Ct (1913). 443; 730, 57 L Ed 734 27 Keasling Thompson, supra, v fn 4 700. 28 classifications, "Except respect unique with to racial to which * * * Dandridge Williams, apply v historical considerations .” fn 24 supra, 489. 29 Shapiro Thompson, 618, 1322, 1346; v 661-662; 394 US S Ct 22 89 (1969). L 631 Ed 2d 655 394 Mich op the Court views, Harlan’s

Notwithstanding Justice developed a twot Supreme States United cases. protection equal to approach iered30 or the classifica "fundamental” If interest is scrutiny” a "strict applies court "suspect”, tion "compelling” to show the state requiring test Rarely the classification. justifies interest which to this subjected legislation courts sustained havе standard review.31 and eco social principally legislation,

Other the traditional under nomic, review subjected person is on the test. burden equal protection to show the classification challenging It has been said justification. reasonable without not be set will statutory discrimination that "[a] reasonably may of facts if state aside will stand A classification justify conceived it”.32 "essentially shown to be unless it is arbitrary”.33 wanting in "ra found so been statutes have Few "essentially satisfy to fail tionality” as arbitrary” test.34 the United recently noted

It has been Court, tradi under a "revitalized” Supreme States test, found a number of has equal protection tional statutes and economic social unconstitutional.35 de- group in a of cases sees Gunther Professor Protection, Note, Equal L Developments 82 Harv in the Law: See (1969), comprehensive the two-tiered discussion of Rev approach. Evolving Gunther, Doctrine Foreward: In Search See fn 30 and Protection, Equal 86 Harv Changing A Model for a Newer Court: on a (1972). L Rev 1 Williams, supra, Dandridge fn 24 485. Co, supra. Lindsley fn 25 Carbonic Gas v Natural Supreme Court found States the United 1941 to From only equal protection one clause in legislation to violate economic case, 1344; v Doud, L 2d 1485 S Ct 1 Ed Morey 354 US supra, Note, Developments, fn 30 1087. 35Gunther, supra. fn 31 Manistee Bank v McGowan op the Court the 1971 term during preceding cided and of Court protection equal standard emerging an new suggests He scrutiny”. which he calls "means Court, expanding the on the "rational basis/com- dichotomy, appears pelling state interest” be willing position to take a activist with- moderately invoking scrutiny” out the formula. "strict test, equal protection on traditional Relying the Kansas, California, Idaho, and North Dakota36 Supreme their Courts held stat unconstitutional; Supreme utes Courts Texas, Iowa, Utah, Delaware, Oregon, Colorado, Dakota, standard, and South on the same relying opposite reach the result.

One explains apparent commentator incon sistency suggesting that there are two really traditional equal protection standards— Dandridge37 and Reed38—and "the test selected court predetermine will result will reach”.39 The Dandridge "any conceivable state of precludes analysis facts” standard40 of the literally support finding classification and will not while the Reed "fair and sub- unconstitutionality, Supreme The North Dakota Court struck down its statute guarantee equal protection as violative of the state constitutional analysis equal protection. of the laws. The was similar to traditional basis,’ “If the classification has some 'reasonable it does not simply made offend Constitution because the classification 'is not practice nicety with mathematical or because in it results in some ** * inequality.’ statutory 'A if discrimination will not be set aside ” reasonably may justify state of facts be conceived to it.’ Dan- Williams, dridge supra, fn 24 485. reasonable, arbitrary, must rest “A classification 'must be having upon ground a fair relation some of difference and substantial Reed, 71; legislation object 92 S ***.’” Reed v 404 US (1971). 251; Ct 30 L Ed 2d 225 39 Comment, Equal Challenges Protection Guest Stat- Automobile utes, Creighton L Rev Co, supra, Lindsley fn 25 Based on v Natural Carbonic Gas Lahr, 216, 223; 253 Mich 74 ALR used in Naudzius v 234 NW (1931): would form a "Can a state of facts conceived which reasonable basis for the classification at bar?” Mich 655 the Court legislation” object of the relation to stantial and deter- bears a real rela- court to examine invites the standard mine whether the classification purposes. perceived to the tion employed the fair-and-substan- Court This has tial-relation-to-the-object-of-the-legislation test, scrutiny” Gunther, in some dubbed "means Legislature have acts of recent cases where found been unconstitutional: on natural classifications based "Are the enactment’s they bear a rea- distinguishing and do characteristics legislation?” relationship object sonable Alexander 30, 35; 219 Detroit, NW2d 392 Mich (1974). supplied.) (Emphasis legislative determining is discretion "In what within had arbitrary, regard must be and what particular legislation. There must subject of the State pur- and the a the classification relation between Employ- it is found.” Fox v poses of the act in which Commission, 579, 588; 153 379 Mich Security ment (T. J., Justices Black, Kavanagh, M. NW2d 644 supplied.) concurring.) (Emphasis Soukis and Brennan along of a class treatment of members "This diverse private tortfeasors bears governmental the lines of or relationship today’s under circumstances reasonable no recognized purpose of the act.” Reich v State to the 617, 623; 194 NW2d Highway Department, 386 (1972). (Emphasis supplied.) the California Su- A writes commentator "applied preme redefined stan- a somewhat Court requiring equal protection standard dard of —a 'legitimate’, merely 'realistic’, state rather than merely substantially, purpose rather than which system supported by rationally, the classification * * * legislature. up by The Court set legislature a refused to attribute to Brown 'theoretically totally unrealistic, "conceivable”, but might support purpose that this classification state Bank v McGowan Opinion op the Court * * * (Emphasis original.)41 scheme’ short, In Supreme approached the California its re viewing function the manner Professor Gunther scrutiny” "equal protection identifies as "means scrutiny’ bite without ”.42 'strict analysis— Whatever attached to the label43 is protection, equal Dandridge whether traditional scrutiny, complete test, test, Reed means or "a balancing governing realistic of interests”44—"the Equal rule is one of Clause, reason: The Protection guaranty Clause, like the Due Process is a governmental controls the reasonableness of act ion”.45 The classification must be a reasonable one, and it must bear reasonable relation to the object legislation. of the

What is reasonable is each instance a mattеr judgment. analysis, In the final it is a value judgment recognized and should be as such. upholds "Whether the court or invalidates a stat making policy, making ute, the court value judgments.” (Emphasis supplied.)46 judg-

So, too, is the choice of test a matter of my judgment, ment. In at least where the chal- lenged exception statute out carves a discrete to a general statutory exception rule and the is no longer experimental, the substantial-relation-to- the-object applied. test should be Legislature premised

Judicial deference to the 41Comment, Judicial Activism in Tort Reform: The Guest Statute Exemplar Proposal Comparative Negligence, and a for 21 UCLA L (1974). 1566, Rev 1567-1568 42Gunther, supra, fn 31 12. read, you my Polonius: "What do lord?” "Words, words, Hamlet: words.” Hamlet, H, Comment, Act Scene The Ohio Guest thanks Statute, 22 Ohio St LJ 44Shaman, supra. fn 22 (MacMillan Schwartz, 1972) Co, NY, p Constitutional Law 288. 46Shaman, supra. fn 22 Mich experimenta- part upon perceived need for especially

tion, and economic matters. in social require Equal Clause does that Protection "[T]he attacking every aspect of must a state choose between attacking problem at all.”47 problem or not operated statutes have for group guest passen- years deny a discrete — injury gers recovery death, or loss caused for — They ordinary negligence. criticized, have been repealed, away amended, and struck whittled down. longer properly view the

A court can no experimental step in a statutes as but the first designed eventually require, legislative scheme example, gross negligence be shown before for injuries any person suffered in an can recover accident. automobile scheme creates a discrete

Where a classification exception general rule and has been enforced to a long period sufficiently for a of time all the support likely to be advanced its rationales developed, fully should examine have been a court they rationales and determine are those whether sound. reviewing

It that is understandable a court what "experimental” legislation say, may would as be "[pjerhaps legisla- Naudzius, Court in did this Where, also had other reasons for the law”. ture however, longer it can no be claimed that legislation experimental, possible where all ra- developed, tionales have been a court should challenge hypothe- that dismiss a constitutional on sis. Williams, Dandridge supra, fn 24 486-487. Manistee Bank v McGowan

III principal justifications Two have been offered to support guest protection ‍‌‌​​​​‌‌‌‌​‌​​‌​‌‌​​​‌​‌‌‌​​‌‌‌​​‌​‌‌‌‌​​‌‌‌​​‌‌‍hospital- statutes: The ity and the elimination of collusive lawsuits.

Accepting, arguendo, pur- these are valid poses, necessary it remains even under the tradi- tional rational basis test to determine whether the classification scheme worked statute enough merely suggest is reasonable. It is not possible legislativе purposes. A court must exam- ine whether there is some relation between the purposes assuming classification and those and — there is some relation —whether it is reasonable. IV This Court "collusion, Naudzius said that perjury consequent princi- fraud” is one of the pal against legislation evils which this is directed. passengers Guest are often friends or relatives of the driver. Since the real defendant in an action injured guest generally driver, an not the but company, his insurance is assumed that might "cooperate” injured guest driver with his prove negligence. may

There indeed be incentive for collusion injured person where the is a friend or relative. deprive guest pas- However, to the entire class of sengers protection against negligently inflicted injury or death because some members of the class may be friends and relatives and a collusive law- may brought "presents suit a classic case of an impermissibly scheme, overinclusive classification is, scheme in which a statute’s classification 'imposes upon range a burden a wider of individu- 394 Opinion Court of the of tainted the class those than

als are included ”.48 the law aims’ at which with mischief that McGowan was In this it is conceded case plaintiff guilty ordinary negligence. This is de- of recovery solely a statute which nied because necessary prevent collusion to es- to defended as tablish is here conceded. that which infrequently driver is hostile Not the defendant рlaintiff and offers evidence to the opposition recovery. cases, he has no In other to may In be dead. such evidence to offer—he case, possibility. a remote collusion is but willing falsely Assuming are some drivers guests negligence of their some to admit enable companies, they against their to recover insurance negli- willing gross might gence. falsely admit be as against protections other That there are friendly perceived liti of collusion between evil recognized by gants states, a number of has been including Michigan, have abolished inter- which intra-family immunity.49 spousal and acquaintances litigants are Friends and every frequent case. most almost the We witnesses judicial process depend upon the to ferret out claims. non-meritorious rigorous subject are examination Witnesses falsely testify trier of fact. Those who before penalties perjury. In most run risk company rep- personal injury cases, insurance vigorously defend the insured and will resents require policies usually against liability. Insurance cooperate his insurer. the insured to with Merlo, supra, 876, quoting tenBroek, Brown v & fn Tussman Laws, Equal L Rev Protection 37 Cal Hosko, (1971), See Hosko v 385 Mich 187 NW2d 236 (4th 27A.2001; Prosser, ed), p 600.2001; MSA Torts § MCLA ff. v McGowan Bank arguendo,

Conceding, higher there is a risk cases, guest passenger of collusion in it dispro- unreasonable, portionate, and therefore to bar (where in the recovery large generality of cases succeed) present collusion is not or will not tо forestall a few frauds. successful

Another evil this Court in Naud perceived by zius was passengers that "some who solicit rides may liability”.50 manufacture claims for

A commentator states that "[apparently, guest passed series of statutes the late 1920’s legislative response pub 1930’s were a to the over outcry widely publicized lic’s a series cases sought which hitchhikers exorbitant damages from their unsuspecting host”.51

Prosser, unable to find evidence of these cases, widely publicized rejects the hitchhiker thes is.52

Whatever in 1931 of viability the asserted purpose protect generous to motorists from the hitchhikers, false claims of there is no evidence of danger this today. "Although by straining imagination our we could 'conceivable,’ theoretically

possibly unrealistic, totally derive a but purpose might support state that this classi scheme, fication we do not our believe constitutional adjudicatory governed function should be such a highly approach statutory purpose.”53 fictional Naudzius stated that

This Court is well "[i]t neighbors known drivers hesitate to take for vLahr, supra, Naudzius fn 40 224. 51Note, Torts—California Guest Statute Unconstitutional Denial of Protection, Equal 23 Drake L Rev (4th Prosser, ed), 34, 187, p Torts n 8. § Merlo, supra, fn 5 Brown v fn 7. Mich op the Court weary way a on traveler

a ride or to his assist injuries”.54 liability potential for because suggested under because It has been exposed are lia- statutes drivers they negligence, bility ordinary more are will- for reducing guests, ing thus fuel to offer rides consumption of automobiles on and the number the road. argued might response, that because be

In liability negli- their from drivers are insulated person gence, own car rather than his each drives high. consumption "guest”, remains fuel presence point or absence of a fact, In the decision of friends not affect statute does together in an automobile. ride and relatives to up may pick hitchhikers, but hesitate Drivers not because negligence, liability potential for gross. ordinary offer, seek, or Friends and relatives accept, with each other for reasons or decline rides ability negli- quite apart to recover from injury, only gently It or loss. inflicted death an accident that the fortuitous event of after becomes known most existence the statute guest passenger people. of a statute The absence group transportation hospitality or would not chill promotes its such or than existence more less activity. protect if the state did have an interest

Even "ingratitude” ing friends, rela drivers from today weary travelers, most automobiles tives or Michigan, states, In several like are insured.55 Lahr, supra, 224. v fn Naudzius 1920’s, guest most that in the late when It estimated has been enacted, of automobile drivers carried were about 20% statutes insurance. Drake L nearly insured. 23 estimated that were In was 85% Merlo, supra, 868, Rev, supra, fn v fn 5 fn 9 59. Brown fn 10. no-fault, Michigan, all automobiles must be insured. In under McGowan Bank op the Court mandatory. analogy The insurance is automobile proverbial dog ingratitude that bites inapposite. injured An hand him is that feeds "ingratitude” by suing does not evidence company.56 driver’s insurance "possible Another reason” for the statute suggested purse of has been "in the the motor owning public”.57 argument guest pas The is that senger litigation, liability statutes limit and reduce thereby allowing companies to offer insurance cov erage at lower rates. guest passenger may statute have reduced recoveries,

the number of but whether it has re- litigation duced not clear. provides guests transported

The statute in a against motor vehicle cannot the owner or recover operator showing gross negligence absent a wilful and wanton misconduct.58 expend

Plaintiffs, defendants, their insurers money litigating considerable time and whether "guest” being plaintiff "transported” in was a injuries so, motor vehicle and if whether his were by "gross negligence caused or wilful and wanton misconduct”.

Conceding, arguendo, insurance rates are guest statute,59 lower because there is a lower premiums justify not, more, insurance do without essentially arbitrary an classification. persons injured Thursdays

If on or men between Merlo, supra, Brown v fn 5 867. Lahr, supra, fn 40 224. Naudzius v 58See fn 1. (1961), Comment, Statute, In The Ohio Guest 22 Ohio St L J 629 relationship study is noted which concludes there is no direct presence insurance rates and the or absence of between statute. questionable to It whether diffеrent rates can be attributed one factor. 394 of the recovery age years for denied were of 50 and ordinary negligence, assurance be would there possibility litigation, recoveries, and the fewer less Nevertheless, all would rates. lower of agree insurance would be struck classifications that such despite "arbitrary” relief afforded down as owning public”. purse "the of the motor Legislature legitimate may inter for It increasing insur of automobile costs in the vene Legislature But the means selected ance. do so must be object reasonably to the related passengers Denying sought to be attained. negligence ordinary recovery more60 is no rea for objective sonably insurance of lower to the related persons recovery denying than would be rates injured Thursdays 50 and 60 or men between on age. years of passengers able are not better as a class

Guest premiums the motor for of lower to bear the cost necessarily they owning public. class, are not aAs espe- necessarily they wealthy all have nor do all recovery. not have Those who do cial sources of recovery to exhaust are forced other sources public may become their own resources charges. purpose rates from here —lower asserted companies

private distin- to be insurance —is govern- guished control the cost from efforts to programs. mentаl benefit compet- innumerable interests there are Because purse public ing is chroni- which for a share negli- ordinary guests recovery arguable denying It is objective rates. gence of lower insurance related to the is less negligence willing falsely Assuming to admit are that some drivers against guests insurance to recover their of their to enable some companies, they the same would have to believe there is no reason merely person, liability includ- falsely because the to admit incentive ing injured car, guests pedestrians, the other his driver of age. years Thursday between 50 and or is a man on a 679 Bank v McGowan Opinion op the Court

cally depleted, prone govern defer to courts are experimental in legisla mental decisions reflected public tion regarding disbursement entitle ments. But it is not settled that even effort of protect and government public to reduce costs fisc is a sufficient for justification selecting a dis crete treatment. That disparate question class subject litigation. is a debate in welfare heated appear many It would United States District accept Courts do not cost as a sufficient justificat Supreme ion.61 And United States Court in Williams, 471; 90 Dandridge 1153; v 397 US S Ct (1970), L adverting 25 Ed 2d 491 while to the opinion, in its problems state’s fiscal rested its maximum uphold Maryland’s grant decision to grounds.62 on other system (1) justify What then is left to the classification and nonpaying passengers paying passen- between (2) gers in the same automobile and between nоn- and paying passengers pedestrians, drivers and cars, passengers in other of property? owners Court, opinion This in an written Justice previously recognized the "irrecon- Smith, Talbot provisions [guest cilable conflict between the of the 61 Welfare, Department Supp The Court in Green v of Public 270 F (D 173, Del, 1967), state, 177 stated that the economic interest of the abstract, worthy permissible "no differentiating in the matter how is not a basis for persons possess between who otherwise the same sta- * * * relationship tus their to the State ”. (D 587, Ariz, 1969); Similarly Henry, Supp see Dews v 297 F 592 (D Fisher, 1109, Me, Westberry Supp 1969); v Dandridge, 297 F 1114-1115 (D Md, 1968), Supp 297 F 458 Williams v rev’d 397 1153; Tobriner, 471; (1970); US F 90 S Ct 22 25 L Ed 2d 491 Harrell v (D (D DC, Supp 1967); Thompson Shapiro, Supp 270 F v (1969). Conn, 1967), 618; 394 US 89 S 22 L alFd Ct Ed 2d Dienes, Hungry: To Feed Judicial Retrenchment Welfare Adjudication, 58 Cal L Rev 605-606 enough regulation "It is that a solid foundation for the can be legitimate encouraging employment in the State’s interest found and in avoiding discrimination between welfare families and the working Williams, poor.” Dandridge supra, 486. families of fn op traditions principles and the statute] our law, and convictions of the customs common the operative described people”.63 Justice Smith effect of the statute: * * * driver, family his must "The of the friends recompense, solaced injury hands without suffer only at his all, that, by the skull was thought the after * * * Why? Because the friendly cracked relationship ship. neighbor hand. of trust friend them was one and between If, however, changed No money had hands. the town, carried to but rather his himself many slaughterhouse, to modern courts livestock will permit recovery injury for to the unfortunate full through to use reasonable care for its animal failure enlightened people Is of an to safety. one answer this 'How then is a man better question: the hallowed much sheep?’64 (Emphasis supplied.) than a posed question Justice reasona- Smith guest passenger exception, but bleness sustaining called to plaintiffs upon verdict was not this question. decide and proceed cautiously

Courts should should are reasona- legislative judgments defer to which experiment must free to Legislature ble. be being required without attain "mathematical formulation of remedies social and nicety” its problems. economic uncon- declaring guest passenger

In statute however, stitutional, say none can this legislative paid judg- has not due deference to the statute is no Michigan’s 45-year-old guest ment. It responsibility an is now our longer experiment. and proffered purposes carefully to examine and, so, if they are reasonable determine whether Stevens, v Stevens 94 NW2d Stevens, supra, 370-371, quoting from Matt 12:11 Stevens fn 63 Authorized Version. Manistee Bank v McGowan Dissenting Coleman, by M. S. the whether classification bears a substantial relation to experience them. After the of 45 years, are no require guests we longer content to bear the entire cost of their negligently inflicted inju- legislature ries because "[p]erhaps also had other reasons for the law”.

To deny guests recompense negligently in flicted injury, death or cannot justified loss as a reasonable to promote hospitality, means foster gratitude, prevent ‍‌‌​​​​‌‌‌‌​‌​​‌​‌‌​​​‌​‌‌‌​​‌‌‌​​‌​‌‌‌‌​​‌‌‌​​‌‌‍collusion, or perjury fraud, re duce premiums, protect generous insurance drivers from litigation”65 ungrateful "vexatious guests or conniving hitchhikers.

We hold guest passenger exception unconsti- tutional and remand for on trial the question of damages. Kavanagh, J.,

T. G. C. Williams, J., concur- Levin, red with J. (dissent). Coleman,

M. S. J. We find the majori- ty’s judicial net of constitutional review to be constructed of too small a mesh. challenge

We are confronted a with to the con- stitutionality of the passenger act. The writ- on ers both sides specific of this equal protection question are blessed with decisions of sister states and by discussions commentators and academia in of either support conclusion.

Candor to leads us admit no personal compul- keep sion to the guest alive passenger act. How- ever, soaring there is a issue the which transcends of this act. fate speak

We of that balance built our wheel into United States beginning Constitution at its 1789 preserved and since and generally known as the Silver, supra, fn 123. Silver Coleman, Dissenting Opinion by S. M. spe- It has been a Separation doctrine. of Powers Michigan’s Constitutions provision cific of all of flood tide of commencing today’s 1835. In chal- of denial of equal the basis lenges legislation on to look the past compelled we arе protection, future constitu- impact on immediate case its (such as statutes of limi- legislation tional tests school, tation, multitude provisions, notice etc.). provisions, business and labor placing opinion as too plurality We see the power judiciary. much in the Therefore, a more modest stance adopt would we relatively few states join majority the abrogation question. which have reviewed legislative deter- be one of this statute should mination. plain- because would affirm the circuit court

We Legislature tiff has to demonstrate failed guest passenger or that act arbitrarily acted relationship permissible no statu- bears rational come within tory objectives. Neither does act scrutiny” requirements. of the "strict purview words, to show that plaintiff In fails other developed over Legislature not met the tests has Michigan or the United precedent years Court. Supreme States of the estate of is the administrator

Plaintiff Williams, in an accident while who died Mardelle an automobile owned Mc- driven defendant Pamame defendant trial, challenged the con- plaintiff Gowan. Prior to inso- 257.401; MCLA MSA 9.2101 stitutionality to demonstrate guest passenger requires far as the by death or loss was "caused any injury, misconduct or wilful and wanton gross negligence of the motor operator” or involved of the owner argued that this statute violates vehicle. It was Bank v McGowan Coleman, Dissenting Opinion by M. S. provision for equal protection guar- laws as 1, 1963, anteed art Const, Const US § Am XIV. rejected trial court the constitutional chal-

lenge and a verdict of no of cause action was against returned plaintiff. Leave to appeal prior to decision of granted. the Court of Appeals was

I. Statute 1929 PA 19 following provision added the to that section of the Motor Vehicle Code MCLA found,at 257.401; MSA It 9.2101. is this language which plaintiff challenges: "Provided, however, person, no transported by That operator or

owner of a motor vehicle as his payment transportation without for such shall have a damages cause of operator against action for such owner or loss, injury, accident, death or of case unless such accident shall have been caused gross negligence wilful or and wanton of misconduct operator owner or of such motor vehicle and unless gross negligence such or wilful and wanton misconduct injury, contributed to the death or loss for which the brought.” action is

II. Constitution our colleagues Because explain do not how clause,1 might act violate the due process we will plaintiff argues process It has been noted that violation of due equal protection clauses and footnote 2 refers to both. " * * * (Amendments Const, XIV, § US art 1: shall nor state life, deprive any person liberty, property, process without due * * * law .” ** * person life, deprived art 17: Const shall § "No law.”) property, process liberty or without due 655 684 394 Mich Cоleman, J. Dissenting Opinion M. S. equal protection to the analysis

confine this Federal Constitutions: clauses of state Const, XIV, 1: art § to US Amendments " * * * * * * person any to deny nor shall State of the laws.” equal protection the jurisdiction its within 1, art 2:

Const § protection equal person "No shall be denied the laws.”

III. Common Law proffer not usually does Legislature Because the general than in for its enactments other reasons terms,2 obliged imagine to frequently the Court might be.3 The of a statute purposes what a and surmise. As suppose is forced logic rationality, discipline emphasizing perform these tasks. comfortably does not law Therefore, long have held that a statute we presumption of constitutionali comes "clothed in here, always, with as ty”.4 We commence intentionally Legislature did belief its rea act —that had unconstitutional pass an sons. for the

Although many there could be reasons act, parties plurality both and the passenger 2 (MCLA seq.; Michigan MSA 9.1801 Code: 257.1 et Vehicle Title seq.) et * * * operators liability provide of owners and for civil "AN ACT ** * of vehicles Advisory Opinion Constitutionality Also, of 1972 PA re see (1973), 441; A Memorial and W Foote NW2d 389 Mich 193; City Hospital Authority, Hospital, 390 Mich v Inc Jackson (1973). NW2d 649 524; discussion, Bricker, People 389 Mich see For recent (1973). NW2d 172 Bank v McGowan Dissenting Opinion by M. S. Coleman, speak largely to the reasons possible (among oth- ers) Lahr, specifically noted in Naudzius v 581; 74 ALR 1189 234 NW2d

There, the Court was asked to decide whether classification аct was unreasonable, arbitrary unlawful so as to ren- protection der statute of the equal a violation provisions.

That Court held that be standards to applied Co, were listed in Lindsley v Natural Carbonic Gas 61; (1911): 220 US L S Ct 55 Ed equal "1. The protection clause the Fourteenth Amendment from power does take the State the laws, to classify adoption police but admits of the exercise of a scope wide regard, of discretion in that only avoids what it is done when any without reasonable basis and purely therefore is arbitrary. 2. A having classiñcation offend some reasonable basis does not against merely that clause because it is not made with nicety mathematical practice or because in it results in inequality. some 3. When the classification if such law is state of facts question, called in reasonably can it, be conceived that would sustain existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classi fication in such a law carry must of showing burden that it does not upon any basis, rest reasonable but is added.)5 essentially arbitrary.” (Emphasis

The Naudzius set forth and discussed others) number (among of reasons which it found adequate to support the classification. The Court said: threshing

"It would be old accepted straw to discuss majority agreement concedes Legislature experiment being be "[t]he must free to re- without quired nicety to attain mathematical in its to fоrmulation remedies problems.” social and economic 394 Coleman, Opinion S. Dissenting M. social, financial, presented has fact the motor car legisla- justify the governmental which problems apart from other vehi- reasonably classifying ture in the of laws.” cles enactment the Court found: After a analysis careful the act tends which may "As evil be conceived arbitrary be to be remedy, cannot said the classification legislative action.” must a basis but be held have consistently espoused similar This Court has Detroit, in Alexander v reasoning. recently As as (1974), 30; 219 we examined 392 Mich NW2d purely found a classification the record and arbitrary. as colleagues sup cite Alexander6

Although our as the "means scru espoused porting the standard added), the connective believe tiny” (emphasis we e.7 too to have substanc gossamer thread employed agree that words Regardless, we The acts and not in themselves hallowed. are give them life from the words decisions which flow meaning. end, judicial precedent additional Towards this must be examined. Supreme Court cases United States

Two recent Lindsley in decisions of parallel language legislative action. respect for which maintain v Rodri- Independent School Dist In San Antonio (1973), 2d 1; 1278; Ct 36 L Ed 16 guez, 411 93 S US Alexander, employing in the result of this writer concurred When relationship” relation instead of "reasonable words "rational technical, colleagues being too there ship”, hеr as she was chided (If being unreasona of the classification was no difference substance. ble, arbitrary.) no basis and so was it had rational cited, Michigan argument applies cases to the two other same Commission, 579; Security 153 NW2d Employment 379 Mich Fox v (“a Department, (1967) relation”); Highway Reich v State 644 Mich (1972) ("a relationship”). 617; 194 NW2d 700 reasonable

1975] Bank v McGowan Dissenting Opinion M. S. Coleman, suspect that, the Court said if a classification or right involved,8 fundamental were the classifi cation "must still be examined to determine legitimate, rationally it whether furthers some purpose articulated state and therefore does not declining constitute invidious discrimination”. In equal protection violation, to find an the Court following: noted the sum,

"In to the extent system the Texas of school financing unequal expenditures results in between chil- happen dren who districts, to reside in different we say disparities cannot product such are the of a system that is so as invidiously irrational to be discrimi- * ** natory. product It certainly is not the of purpose- against ful any group discrimination or class. On the contrary, it is experience rooted in decades of in Texas elsewhere, major part and in product is the of responsible by qualified people. giving studies In sub- presumption stance to the validity to which the system entitled, Texas v. Lindsley Natural Carbonic Co., 61, (1911), Gas important U.S. stage remember that every at development its it has 'rough constituted a accommodation’ of an interests in practical effort to arrive at and workable solutions. Metropolis City Chicago, Theatre Co. v. 228 U.S. 441; (1913). 69-70 S Ct 57 L Ed also must One [33 30] system challenged remember that the pecu- here is not * * * liar Texas or to other State. The constitu- Equal tional standard under Protection Clause is challenged rationally whether the state action furthers legitimate purpose state v. interest. McGinnis Royster, 410 U.S. S 35 L Ct Ed 2d [93 plan abundantly We hold that the Texas added.) (Emphasis satisfies this standard.” adopted The Court has alternative standards for certain areas analysis. When classifications concern a interest or are fundamental race), (e.g., strictly based on certain criteria legislation. the Court will scrutinize example, Hospital Maricopa For an see Memorial 1076; (1974). County, 250; parties 415 US 94 S Ct 39 L Ed 2d 306 The by guest passenger not claim that do the classification established proviso scrutiny”. necessitates a "strict 688 655 394 Coleman, Dissenting Opinion S.M.

The Court also said: however, decision, solely on the "We need not rest our strict-scrutiny A century test. inappropriateness of adjudication Equal under the Supreme Protec- of application of the affirmatively supports tion Clause review, requires only that which traditional standard of the State’s to bear some rational system shown be purposes.” (Emphasis relationship legitimate state added,) posture was also recently More this deferential Boraas, Terre v 416 US Belle Village evident (1974).9 797 In re L 2d 1; 1536; 94 S Ct 39 Ed ‍‌‌​​​​‌‌‌‌​‌​​‌​‌‌​​​‌​‌‌‌​​‌‌‌​​‌​‌‌‌‌​​‌‌‌​​‌‌‍to a zoning buffing challenge equal protection an right. ordinance, noted a fundamental the Court legislation: Court said of procedural disparity "It inflicted on some no involves Griffin v. presented as not on such was but others (1956). Illinois, 585; 100 Ed. 891 12; S. Ct. L. 351 U.S. 76 right guaranteed by the It involves no 'fundamental’ Constitution, Board, voting, Harper Virginia v. such as (1966); 663; 169 383 U.S. 1079; 16 L. Ed. 2d. 86 S. Ct. association, NAACP v. Alabama 357 U.S. right the 449; (1958); right 1163; 78 2 L.Ed. 2d 1488 S.Ct. Button, courts, 415; 83 NAACP v. 371 U.S. access to (1963); any rights privacy, 328; 9 L.Ed.2d 405 S.Ct. Connecticut, 1678; 479; 85 S.Ct. cf. Griswold v. 381 U.S. Baird, v. Eisenstadt (1965); 405 U.S. 14 L.Ed. 2d (1972). We 1029; 453-454; 92 31 L.Ed.2d S.Ct. legisla- legislation economic and social where deal with respect historically lines we tures drawn which have charge Equal Protection against of violation ’ ’ ’’reasonable, arbitrary” (quot- the law Clause if 412, 415; Virginia, v. Royster Guano Co. ing U.S. ’a rational [1920]) 64 L.Ed. bears S.Ct. New, Equal Village of Terre: The New See Boraas v Belle Note: (1974). Gunther, Protection, Evolving Compare In Search of L 72 Mich Rev Equal Changing A a Newer on Court: Model for Doctrine Protection, L 86 Harv Rev 689 Bank v McGowan Dissenting Opinion Coleman, J. M. S. ’ relationship objective. [permissible] to a state Reed v. Reed, 251; 71, 76; 404 30 U.S. 92 S.Ct. L.Ed.2d 225 added.) (1971).” (Emphasis decisions, In both the Court was loath to invali- Rodriguez, In legislative judgment. date state each to finance schools as it permitted locality saw Boraas, fit. In each permitted locality the state its it fit zone land as saw and the Court declined to intercede in legislative or local decisions. Shevin, Kahn plaintiff 351;

The in 416 US 94 S (1974), 1734; 189 challenged Ct 40 L Ed 2d (but widowers) Florida granting statute widows exemption. an annual tax property $500 applied this standard: long have "We hеld that taxation is concerned '[w]here specific right, apart equal protec- and no federal from

tion, imperiled, large leeway the States have in making drawing classifications and lines which their judgment produce systems reasonable of taxation.’ Co., Lehnhausen v. Lake Shore Auto Parts 410 U.S. 356, 1001; (1973)]. 359 L S Ct 35 Ed 2d 351 A state [93 tax arbitrary although law is not 'discriminate[s] * * * favor of a certain class if the discrimination is upon distinction, founded a reasonable or difference in policy,’ state not in conflict with the Federal Constitu- Bowers, tion. Allied Stores v. 358 U.S. 528 S Ct [79 437; (1959)].” 3 L Ed 2d 480 Fuller v In Oregon, 40; 417 2116; US 94 S Ct 40 (1974), L Ed 2d a statute challenged was which required indigent criminal defendants repay costs their defense if later they acquired ade- quate claim funds. One was that the statute dis- criminated between those convicted and those ac- quitted subsequently In appeal. victorious on responding, the Court said: Coleman, Dissenting Opinion M. S. Strange: 128; v. US "As the in James [407 Court stated (1972)] inquire do not 2027; S Ct 32 L Ed 'We 2d * * * or desirable. Mis- whether guided this statute is wise may be constitutional.’ laws nonetheless U.S.,. merely to at 133. determine whether Our task is rationality nature there !some class ’ singled Yeager, 384 U.S. 308-309 out. Rinaldi v. 1497; (1966)]. S Ct Ed See also McGinnis 16 L 2d [86 L Royster, S Ct 35 Ed 2d 282 410 U.S. 263 v. [93 (1973)]; 420 Maryland, v. U.S. S Ct McGowan [81 added.) 1101; (Emphasis (1961)].” L Ed 2d Aiello, Geduldig 484; v Also 417 US 94 S Ct see (1974): 2485; "Particularly 41 L Ed 2d 256 with long the respect programs, to social welfare so as supportable, the rationally line drawn State is interpose judgment not their as to courts will point”. the appropriate stopping The establish the generally cases cited abоve analysis review in the accepted standard involving not fundamen- legislative classifications Although ev- suspect tal interests or criteria. judicial from legislative enactment is immune ery abrogation, proceed the Court should with re- nullify asked to stat- straint and deference when concerning utes. is not forum for debate This desirability legislation. leading and unanimous case in field of Silver, Silver v 117; acts 280 US guest passenger (1929), 57; 221; L in 50 S Ct Ed ALR Supreme United States stated which the no "not that are evils that assume there would permissible to be objects social corrected present statute”. gained by Texas, an act to ours in upholding similar Harrison, (Tex App, Civ Tisko 500 SW2d 565 of Silver: 1973), spoke Bank v McGowan Dissenting Opinion by M. S. Coleman, "Silver is in harmony holding with other decisions equal protection require perfection does not clause - classifying legislation. subjects The classic concept statement of this was made Mr. Justice * * *

Holmes provisions 'Great constitutional must be play administered caution. Some with must be allowed joints machine, for the of the and it must be remem- legislatures guardians bered are ultimate people quite liberties and great welfare of the as ’ ” degree as the courts. The Court say: went on to "More agree recent decisions that an under-inclusive necessarily classification is not legislation a fatal defect unless the classiñcation’, !suspect involves a such as interest’, race or poverty10 or a fundamental suсh as voting rights speech. or freedom of Only in these lim ited areas legislative subject is a classification to 'strict scrutiny’ ”.

A Merlo, discussion followed of Brown v 106 Cal 388; Rptr 506 P 2d Cal 3d 855 Because California had previously abandoned the traditional tort doctrine that the status of a him, determined party duty owed and because the statute is substantially different it "lacks 10 this, illegitimates. To add we could women and 11 provided: Cal Vehicle Code 17158 § person riding occupying by in or "No a vehicle owned him and person permission person driven another with his and no whó as a guest accepts any upon highway giving a for such in ride vehicle nor without ride, compensation action for civil any any person, any right other has damages against against the driver of the vehicle or legally person liable for other the conduct of the driver on personal injury to account of during or the death of the owner or ride, plaintiff unless the in such action establishes proximately injury that willful misconduct or death resulted from the intoxication or of the driver.” 655 394 Coleman, Dissenting Opinion S. M. backdrop”12 of Michi persuasive against force law. gan case,

However, inap- however the Brown it was encouraged further or posite, which commenced abrogate judiciary some members con in pro and statutes and is discussed state subsequent judicial reviews. has say:

Tisko this to the distinction be- characterizes "The California court gratuitous passengers as irra- guests paying and tween Rowland v light of its earlier decision tional Christian, 97; 108; Rptr P 2d Cal 2d Cal (1968), long-standing common-law which abolished the duties owed business invi- distinctions between tees, * * * guests .” licensees social and (as Michigan) that Texas has The court noted between duties owed maintained the distinction those classifications.

Rationale face, requires guests MCLA 257.401 all itsOn mis- gross negligence wilful wanton show may recover from their host they before conduct Any motor injuries received. vehicle transportation for the and who pay does who operator as the of the owner or is carried the statute. within falls unequal treatment arises from problem

Any have interpretations which courts inconsistent buttable S Ct classification new decision See Primes presumption” 41 Ed takes foothold L illegitimates Tyler, 2d 363 43 Ohio St 2d fraud or (1974), having in Jimenez v leaps collusion. 195; to the conclusion of an Weinberger, to do with the 331 NE2d 417 US suspect 628; "irre- This sub- Manistee Bank v McGowan Coleman, Dissenting Opinion by M. S. placed upon the words of the statute.13 Although distinctions substance may without have been drawn in some states individuals included whose status suspect, was the fault lies not with the statute. On this basis the remedy is not avoiding the overruling statute but unwise deci sions.

We cannot say that this classification is irra- tional on Legislature its face. If the had said that all Democrats or all injured those on Thursdays prove had to gross the existence of negligence or misconduct, wilful and wanton such classification would be irrational on its face. The singling out of guest passengers does not have a similar import.

However, the classification warrants ap- further praisal. The most obvious reasons for a guest act and those most frequently recog- (1) nized in judicial opinions are to minimize collu- (2) sion and fraud and promote "hospitality” (including group transportation and assistance strangers on the highway) by insulating gener- (and ous host from possible large discouraging) personal damages addition damages. to insured

Out of these purposes could emerge a cause to contain premiums insurance within reasonable preclude limits and another "medical malpractice” type of fiasco which lately legislative has invited attention.

Most of those who abrogate would the legislation employ expedient of knocking down its more (and apparent reasons in some states stated rea- sons) by simply saying that the reasons do not exist, or they proof have no would they great be of magnitude and even that do they like the reasons. generally Statutes, See Comment: Judicial Nulliñcation of Guest

41 S Cal L Rev 884 Coleman, Dissenting Opinion J. M. S. large flurry easy say It is to that suspected may trig- which collusive claims have gered longer occur. The the act would no truth is that we do The act has been in not know. exis- years. tence for 45 Neither do we know how "no requirements fault” affect insurance will the class (if the insurance act itself survives test of constitutionality). any еvent, In collusion is diffi- court, cult to detect and before the establish as judge of criminal can attest. cases identify Because no method is available collu- guest passenger sive and because we suits have no support factual data to either side of this conten- only guess. tion, we can Because the Court has no balancing advantages viable means of and and disadvantages philosophize. only guess act, we can very reason, For this we conclude that the al- leged legislative fact-finding evil is one for policy consideration. applicable hospita-

The same rationale to the easy say ble driver. It is that the host would or just many pool would not welcome as car mem- regardless bers, hitchhikers and others of the num- awards, ber suits and size of whether within or liability. say in excess of insured could that We vexatious, the numbers of fraudulent or suits — otherwise —would soar. But the truth we do only guess. not know. We can object money We are told that is no in such Legislature deliberations as this. The fact that the may impact upon have considered the the "aver- age payer premiums citizen” of insurance is not However, considered a valid state interest. we malpractice direct attention to the medical insur- problem very ance which is at this moment a legislative matter concern. inquiries

The thrust of these is that we do not colleagues. know the answers —and neither do our Bank v McGowan DissentingOрinion by M.S. Coleman, fact, Because we something is a say it is not however, necessarily Legislature, so. The has the means for gathering background the data and material upon public which base policy and subsequent modification, repeal or ratification the act. We would defer to that of govern- branch ment.

Conclusion Our colleagues concede that Legislature may have had for the reasons statute at the time of its passage and we concede that a broad view of statutory constitutionality is appropriate in the "experimental stage”. however,

Where part, we the contention (even legislative life of a enactment field!) litigious such a somehow makes it suspect and that it therefore upon incumbent the judi- ciary to impose its stamp approval or, own as here, disapproval.

We are offered no standards excepting our own judgments, value our own data guessing games and the application of our own seven personal philosophies. convictions or The constitutional validity or invalidity of this particular great act is of concern to us because pattern sets the for future scrutiny legislative enactments. With no substitution of standards abolished, those it will be too easy to override the Legislature.

We prevailing find the opinion to do violence to the Separation of Powers doctrine and to place too power much in the judiciary. J.,

J. W. concurred M. Fitzgerald, with S. ‍‌‌​​​​‌‌‌‌​‌​​‌​‌‌​​​‌​‌‌‌​​‌‌‌​​‌​‌‌‌‌​​‌‌‌​​‌‌‍ Cole- man, JJ., took no part Lindemer,

Swainson the decision of this case.

Case Details

Case Name: Manistee Bank & Trust Co. v. McGowan

Court Name: Michigan Supreme Court

Date Published: Sep 8, 1975

Citation: 232 N.W.2d 636

Docket Number: 54961, (Calendar No. 8)

Court Abbreviation: Mich.