*1 Bethel, Merritt, Remi Reilly, Jr., E. Nell Jean Thomas Individually Rosenthal, Mem Patton, and as C. Richard Retirement bers of State Teachers Mary F. Esther Davis. Robertson April February 22, Rehearing Filed denied 1977.] 376S92. 1977. [No. *2 Sendak, Attorney General, Bogard, L. P. Theodore Donald Anthony III, Attorneys appellants. Deputy General, for J. Metz Lockyear, Barber, Evansville, ap- of for

Theodore Steve pellees, Bose, Indianapolis, Márchese, Jr., Lewis Michael C. Seitz, Wayne, Daniel B. of Fort amicus for Association curiae Legal Bose, Companies, of Life Indiana Reserve Insurance counsel, McKinney Evans, Indianapolis. of & appeal judgment is an J. This DeBruler, invalidating sepa- Vanderburgh adoption Circuit Court teachers for for men and women retired actuarial tables rate paid by computation the Indiana of benefits to be State Teachers’ Retirement Fund. appeal permitted transfer of this to this Court

We Ap. 4(A) (10), recognizing pursuant to Ind. R. P. great question public im- “involves substantial of law of emergency portance speedy and that exists for de- termination.”

Appellee Mary Evans- Robertson a female teacher ville-Vanderburgh County part salary System, School of whose paid is withheld and into the Indiana State Teachers’ Retire- (“Fund”). Appellee ment Fund Esther Davis is retired taught system, teacher who had in the same who had also Fund, receiving was who benefits contributed Vanderburgh Circuit Appellees filed suit therefrom. adopted alleging Court, by the actuarial use of dollars approximately fifteen appellees would receive teachers per retirement than male less month in benefits age teaching experience. This ac- equivalent same brought the class themselves and tion was on behalf of eligible against retirement, teachers female retired State Teachers’ Retirement Board of Trustees of Indiana Appellees four its members as individuals. advanced recovery: theories of mortality tables That the of sex-differentiated rights

deprived appellees under States and United Spe- statutory under law. Indiana Constitutions and alleged cifically appellees Due Process and violation of the Amendment, Protection Clauses Fourteenth Privileges Rights 1, 23, Clause, Art. the Indiana Constitution, authority and that Board exceeded the (Burns enabling statute, its Ind. Code 21-6-1-1 to -6-15-11 §§ *3 1975).

(2) deprived appellees the Board’s action of their civil That Rights rights contrary 1871, to the Civil Act U.S.C. (1970). §

(3) That the Board’s action Title VII Civil violated of the Rights (1970). 42 U.S.C. 2000e-2 Act of § obligation

(4) “impaired That Board’s action 1, 10, contrary Art. contracts” States Con- United § Art. stitution and of the Indiana Constitution. § requested injunction requiring pay- The relief was an teachers; equal ment benefits to and female male retired declaratory judgment invalidating action, the Board’s accounting for the paid, an differences in benefits and dam- ages equal thereto. liability trial

The trial court severed the of the issues of damages. discovery, trial, briefing, After the court judgment appellees for rendered on their first and third holding recovery, that: theories deprived plaintiffs

(1) separate mortality The use of equal equal privileges, in that there was protection teachers the classification no rational for of retired basis by sex.

(2) payments an unlawful The differential constituted Rights practice employment under Title VII of the Civil Act of 1364.

The trial court held that the Board members were not liable “impaired under and that had obligation appointed pur- of contracts.” Court a master investigate suant Ind. R. Tr. indi- P. 53 to the amount of damages vidual members of class. The was master hourly paid expenses, ordered plus rate which cost was against assessed the Fund. appealed,

The Board filed its correct motion to errors and raising following issues:

(1) payment Whether of differential retirement benefits to male and female retired teachers violates the Pro- (or Rights Privileges tection Clause Clause Constitution). (2) Whether Due Process Clause of the Fourteenth prohibits Amendment the Board’s action.

(3) such payment Whether Rights violates Act, Civil Supremacy (United and therefore the Clause States Con stitution, VI, 2). Art. cl. Whether trial court assessing erred in fees against

paid the master the Fund. judgment (5) Whether the supported below is by sufficient evidence.

I. STATEMENT OF FACTS

The Indiana State Teachers’ Retirement Fund was estab- in applied lished “to be used and payment in the of engaged persons teaching annuities to in supervision the teaching public of schools of the .” state. . . Ind. (Burns 1975). Code 21-6-1-1 The is Fund § administered Fund by Ind. 21-6-1-3. The of Code its board trustees. § teachers account, annuity member of an into which consists the (3% annually at portion salaries, a their of contribute account, cause) pension reserve time the trial and a of of consisting by the Ind. Code State. funds contributed 21-6-1-10. § investigations is actuarial The Board authorized conduct years level every to determine the of contribu- at least once six required necessary provide the benefits. Ind. Code tions (b). provided different The are of seven 26-6-1-6 benefits § option. forms, the teacher’s Teachers’ Retirement at retired Reg. (21-6-1-11) 22 1, Fund Rules & Ind. Adm. Rules 1976). guarantee -35, (Burns -49 Ed. of these Code Some contribution, payment repayment of the teacher’s some others life, others survivors. for some benefit the teacher’s portion approximately pension The of a retiree’s check is solely paid the total check is amount of the 87% annuity portion from the contribution the The State. approximately retiree’s check is total and check 13% represents participation annuity of the retiree in the ac- by pension portion count contributed teachers. The is the same similarly respect all teachers for who are with situated age, years service, salary and date retirement.

annuity portion similarly not same all teachers so situated, in that retirees approximately women receive fifteen retirees; per less month than this differential dollars monthly total life of course reduces woman’s check annuity portion differential result amount. adoption Group and use fund of the “1971 Annuity Mortality annuity Tables-Male” to calculate males, portion due and use year a five of that same table with set-back in case of women. years many making Fund for

Prior portions calculation used table which subclassify by sex, annuitants did and in fact simi- *5 34

larly same situated male and female annuitants received The women amounts. contributions teachers have equal. eligibility requirements participation been program the retirement have been the men and same for prior expectancy women. And to both and after the life greater group of women as a has been than that of men group. as a annuity program side of the retirement for teachers

operates annuity much private like an contract sold in sector. For a pay periodic sum certain insurer contracts to sum the annuitant annuity for a term certain for life. An against insures living long the risk of while in- too a life policy against surance pre- insures resulting the risks private sector, mature death. And in the annuity terms contracts are struck separate mortality the use of for men and women. appellant

We turn now Fund’s first contention which is that the trial adjudging erred in that the use separate mortality Fund of tables to calculate payments women, deprived appellees for men and equal protection equal privileges of the law. JURISDICTION, STANDING, II. PROPER PRESENTA-

TION OF CONSTITUTIONAL CLAIM us, clearly From the record appears, before and is un parties, contested these between that the Circuit Court of Van derburgh County was a tribunal authority vested with adjudicate appellees’ claims; constitutional appellees standing claims; have to make those and that those claims litigated fully adversary been atmosphere, suitable permit judicial of reasonable Board resolution. Com missioners City Commission, v. Kokomo Plan (1975) 263 Ind. 282, 330 N.E.2d 92. NON-CONSTITUTION- ELIMINATION OF POSSIBLE

III. AL DISPOSITION duty do, next, our to determine if turn as it is

We grounds. justly disposed on non-constitutional can be case Commission, City Plan v. Kokomo Commissioners supra. Winn, (1967) N.E.2d Passwater v. Ind. conclusions, part As of its trial court stated 622. judgment: its 1971, 21-6-1-6(a) “12. Pursuant Burns Ind. Ann. IC Stat. *6 (a) 28-4806 : teachers’ ‘The of trustees the Indiana State board adopt enforce power

retirement fund shall and regulations government necessary by-laws all and administration for the department the control of the funds its not and investment of the inconsistent with have pertaining committed ta care . provisions this act . . shall determining discretionary power all matters specifically provided for to its trust not .’ act. . this . 1971, (b), 21-6-1-6 to IC Burns Ind. Stat. 13. Pursuant (b) :

Ann. §28-4806 provide investigation shall for an actuarial ‘The board years thereafter, 1953, every during year (6) six may . . decide .’ often as board and more authority, Acting statutory pursuant members 14. Board, Retirement as Indiana Teachers State Indiana, adopted separate agency use the State annuity portion computing of retirement tables in Indiana. checks of teachers showing that the no members of 15. There been scope authority, their have acted outside they individually adopt

that in could have acted question.” appellees’ conclusions, rejected con- By the trial court these illegal challenged action of the Board was tention authority. beyond statutory its These not conclusions are as appear supported by clearly statutory refer- in error and unchallenged they appeal. made, stand on As such ences making negative non-constitutional resolu- possibility appeal. tion of

36 EQUAL SELECTION THE PROPER PROTECTION

IV. OF (FEDERAL) TESTS

Appellant arising claim, Fund’s under does Clause, requires Protection proper we first determine the applied. constitutional standard to Here the classi be upon fication of annuitants is based sex and affects monthly annuity the amount of payment received governmental each annuitant. The Fund contends that its making upon interests in this classification based sex are to make the fund more secure and to make a fair distribution benefits. conclude We that the fair and substantial applied relation standard is be here. In order for a classi guarantee satisfy equal fication protection, it “must reasonable, arbitrary, ground upon be and must some rest having of difference a fair and relation to the substantial object legislation, persons similarly so all circum Royster stanced shall be treated alike.” Virginia, Co. Guano v. (1920) 412, 560, 253 U.S. 989; 40 S.Ct. 64 L.Ed. Reed V. Reed, (1971) 404 U.S. 92 225; S.Ct. 30 L.Ed.2d Haas v. South Bend Community Corp., (1972) School Ind. 495; High N.E.2d School Athletic Asso Raike, ciation App. Ind. 329 N.E.2d 66.1 question in this case then is whether the difference in sex *7 between annuitants warrants the Fund’s pay decision to lower monthly benefits to women than it does to men. Craig Boren, (1976) 190, 1. In 451, v. 429 U.S. S.Ct. the Su 97 preme equal protection applied Court stated standard in sex-based challenge, pre classifications follows: “To withstand constitutional gender vious cases important establish that classifications must serve governmental objectives substantially and must be related to the achieve objectives.” ment of those 97 S.Ct. at 457. This statement lends credence many Supreme to the belief of employs commentators that Court scrutiny equal protection analysis an “intermediate” sex-based classifications. at case under level of Raike, supra, See discussion and authorities in However, 329 N.E.2d in 71-78. view of the result reached in this scrutiny, the traditional “rational basis” low-level we do necessary application heightened

not it find discuss levels of scrutiny. Indeed, this case seems unusual the result reached is peculiarly independent employed. of the standard

37 EQUAL TEST PROTECTION THE STATE V. under is also raised equal protection claim appellees’

As deter 23, Constitution, must 1, we also of the Indiana Art. § enforcing pro legal applied to be mine standard Phillips applied was stated The standard to be here vision. 414, 120 Valparaiso, (1954) City Ind. 233 Officials of 398, where this Court said: N.E.2d privilege classification, question under “The 1, Constitution, Article the Indiana clause

immunities legislature primarily not 23, and does is § clearly appears judicial question become a that unless legislative on not based classification is subject-mat reference to the distinctions with substantial (Citation unjust ter, unreasonable.” manifestly or 421, 120 omitted.) at 401. Ind. at N.E.2d rights intended that the It this Court established been 1, 23, protected Art. Constitution to be Equal Fourteenth Protection Clause and the are Amendment United Constitution States Schools, Community identical. Haas v. South Bend mean, in supra. however, This that federal cases does binding this terpreting upon Protection Clause are making interpretation Court in an of the Indiana Constitution. interpretation provision Our of a state constitutional independent judicial making Court, act and in judgment, only persuasive federal cases have Mid force. Corp. Commissioners, western Petroleum v. State Board Tax (1933) 688, 187 206 Ind. N.E. 882. PLAINTIFF THE BURDEN OF BELOW AND

VI. THE APPELLANT HERE OF BURDEN negative plaintiffs below, In had the burden might every supported use basis its conceivable annuitants. [15] classify of sex to Madden v. Commo Kentucky, (1940) ealth 309 U.S. 60 S.Ct. 590; Lehnhausen v. L.Ed. Lake Shore Auto Parts Co., 93 S.Ct. 351. L.Ed.2d 410 U.S. *8 38 presumed in that con- court Board

And have acted challenged stitutionally adopting formula deter- mining annuity benefits federal under both con- and state stitutional law. McDonald Board v. Election Commissioners of Chicago, (1969) 394 U.S. S.Ct. L.Ed.2d of 739; County Commissioners Howard v. Kokomo of City Commission, supra. Plan

However, pension the Board of Trustees of the fund, as appellant, has the burden before this Court. many “It been held times presump that all reasonable indulged appeal rulings are on

tions favor of the judgments exhibit the errors for court, trial that the record must sought, reversal is that of appeals presume any a court will not thing appellant alleged in favor of to sustain his errors.” First National Bank Corp., Penn-Harris-Madison School 16, 18-19. 255 Ind. 265 N.E.2d ground Therefore, appellant present us Board must before support classify sufficient to of sex to use annuitants which erroneously arbitrarily accept the trial court refused to as sufficient.

The trial that arbitrary it was concluded without rational classify basis for sex, fund annuitants upon, among others, based this conclusion that reasons only sex is influencing one innumerable factors life ex- pectancy and ignored; such factors group other are mortality ignore statistics female; the traits individual year of females will have the same of death as 82.9% consequence males and aas those females will 82.9% having males; die received less than those the addi- given monthly income tional retired males will permit them comfortably in retirement more live than retired females. appeal, On the Fund contends that the classification of resulting annuitants sex separate its promote objective serves the teach- legislation by insuring ers’ retirement security the financial steps Fund. taken paying While to avoid out more security promote can would than the fund bear benefits legislation, there general objectives Fund and *9 argu- convincing showing record, there a in the nor is is no separate appellant that in the briefs of the ment sup- effect. No have this for men and women would the the ported in the that failure of assertion exists case computing their in to consider the sex of annuitants solvency the annuity placed the portions prior to degree. in any found, trial jeopardy The in to liability judgment, that support of its of the Fund can by feasibly determined use of which be table annuitants, procedure ignored the and sex of that such had by years prior many for the Fund been followed to 1972. upheld unsupported. cannot be it is Appellants’ contention as equal brief, appellants’ remainder of devoted to the The issue, support proposition protection provides for the that paid greater equitable for men to benefits is more be group long women men as a do not than because live as as period group therefore have as a and a shorter of time women periodic payments. retirement after in which to collect Im- plicit part purpose in brief is assertion that this plan by retirement for teachers furthered pay- greater periodic to sums retired men. ment legislation legislative purpose pension The is broader envisaged by appellant purpose than that Fund. Its overall teaching provide an incentive all is to to teachers to remain in career, accept to a lifetime as the moderate salaries teachers, forego opportunities paid and to in other areas employment they may enjoys return, arise. In State having taught public teachers, school students by the benefit through who, experience increased education, be- have plan practical does first come more effective. eligible retire, begins to effect teachers become but when begin operate individual teachers first when the teach. teaching position plan first From outset of a is an encouragement reject types employment. alternative monetary monthly contribution each teacher must general

pay purpose. the retirement fund this same into increasing giving by It enhances the incentive the teacher an payments personal will future stake from which fund be made. only remaining pro-

It is be it is noted that public participate fession that teacher school can pension Adding plan. to the value of each teacher the Fund sponsored, is the fact the Fund is maintained secured government. And, the state we observe also opportunities qualify of both male and female teachers to equal for eligibility retirement the actual standards eligibility of male female And are the same. teachers finally, payment the pension annuity payment and the when together comprise periodic added retirement re- check annuitant, ceived and that this check is delivered promise fulfillment of plan daily needs *10 of persons part by periodic retired will met in pay- be such annuity ments until death if the is it for life chosen. And is the which belief each teacher that such will checks forthcoming be on retirement and that such checks will provide daily minimal a form satisfaction needs human that makes the operate, incentive intended turn in legitimates pension. the entire argues equal payment

The por- that the annuity tions to retired men and women re- would be tantamount to quiring plan inmen to subsidize the women in plan legislation contrary purpose of the which is to provide incentive to an both men and women teachers profession. remain in the stay incentive to a man in profession requirement could be lessened the Fund’s provide through that he money some of the his contribution pay benefits. conceivably women’s He could leave the teaching profession, employment private secure sector, in the buy annuity and the open benefit on market which would by male-only mortality be calculated a table. Reed, supra,

As in purpose treating Reed served differently (here purpose women such and being the effect) not wit “is subsidization of this avoidance [7]However, legitimacy.” possibility ut some dissuaded or will been be male teachers have teaching the differential staying profession because equal receipt of an them, arising out of treatment afforded part each benefit, a small annuity itself is which benefit A reasonable speculative remote. periodic payment, is group person is the nature must conclude unique actually receives plan annuitant that each individual unique occur at a the death of each will benefit because of another time, annuitant point in and the of one subsidization is addition, factor constantly going the subsidization on. In only, group terms part in actuarial for the most demonstrable the individual male under and the difference in treatment of sex-segrated practically immeasurable. unisex and highly likely And, teacher consider it is male would light any equal manner in which such differential age, qualified by teachers have service male and female contribution, light equal daily needs human and in have, upon such which both male and female annuitants deciding differential consideration would discount such public accept employment whether offer outside some teaching. We therefore conclude that difference school carrying pension plan, with it sex of annuitants group mortality experience, no real different bears and sub relationship legislation. purposes man stantial to the point teacher at when considered at which each woman benefits, qualifying is first for retirement each same having age, qualified by years number of and each same *11 by disparate group not reason of and level of service are circumstanced, mortality experience dissimilarly and are en equally right participate payments to titled receive up made fund contribution teachers. finally conclude that the trial court And we was correct objective adjudging legislation pension of this not Equal in a manner consistent Pro- advanced with either Equal of the Fourteenth Amendment or the tection Clause Privileges by Clause the Indiana Constitution application group annuity the Fund of year females, thereby table with a five providing set-back greater monthly annuity payment females. males than pointed options The out that the “B” are available teachers, both men women and that under one monthly options, actually “B” greater a woman will receive a payment. We such are convinced that existence of options render the uneven “A” distribution of benefits under options constitutionally permissible. From the we record options know “A” majority are selected vast options all annuitants “B” and that not the functional are equivalent options. of “A”

In two recent cases considered the United States Su- Court, preme upheld sex-based classifications were con- guarantee equal sistent with the protection law. under They specific merit consideration here. Shevin,

In Kahn 416 U.S. 94 S.Ct. L.Ed.2d issue before court was state whether a granting statute exemption widows an annual tax vio- $500 lated the Protection Clause as to widowers. The court noted that the financial confronting difficulties the lone woman facing exceed those job the man. The inhospitable market to the seeking any jobs. woman but the lowest paid While usually may the widower job, continue in his often the widow will job to look for a with few marketable skills. upon ground found that the difference rested “some having object fair difference and substantial relation to the legislation.” tax reasonably designed law was policy “cushioning further the state impact the financial spousal upon loss the sex imposes for which the loss disproportionately heavy burden.” U.S. at 94 S.Ct. bar, against at 1737. In the case at protects living risks attendant out the remainder of one's life. place Those risks do not a disproportionately heavy burden larger could their justify monthly on checks.

48 position in appellant’s supportive Therefore, this is not case appeal. this Geduldig Aiello, (1974) 94 S.Ct. 417 U.S.

In v. state-administered, whether a the issue 41 L.Ed.2d was private plan persons for privately health insurance financed temporarily because employment work are unable who compensation disability by ex- could not workmen’s covered and coverage pregnancy disability due to normal clude from Equal delivery violating the Clause. without Protection disability majority held that exclusion of was insure did not have to invidious discrimination. state included, pregnancy risks. normal the annual all If were employee and would have to be contributions increased might longer Or, self-supporting. program no the available be inadequate at funds would be an level all distributed disabilities. policies objective provide wholly “These non- more invidious basis for comprehensive decision not to State’s create a program than has. There is no insurance evidence in the record the selection of the risks insured by group against any program worked to discriminate definable aggregate protection or class in terms risk by group program. There or class from the derived are protected risk from men are and women no Likewise, are there is no women not. risk from which omitted.) (Footnotes protected and are not.” U.S. men S.Ct. 417 496-497, at at 2492. payments monthly annuity intended

In case at bar the are providing perceived potential to be beneficiaries as satis arising during daily short term needs retirement. faction of greater men, By providing payments appellant Fund greater against arising provided panoply has men with risks daily be human needs. No difference in those risks as exists, justifying pro the additional tween men women perspective, Geduldig tection afforded men. Viewed with this support position. supra, appellant’s Aiello, does not challenges of the trial Appellant Fund next decision application of different court that tables for men women Process annuitants violated Due Supremacy Amendment, Clause Fourteenth and the Clause, rights protected Rights the Civil ofAct light policy U.S.C. In of the fact that 2000e-2. this been determined tribunal have been unconstitutional Clause violation Protection of the Fourteenth Amendment to the United States Constitu- *13 Equal guarantee Privileges tion of Art. Constitution, unnecessary we deem it these consider further appellant. contentions Even if such determinations by error, the trial court were such error our would not alter judgment, affirmance the trial since the determination unconstitutionality equal protection analysis under ais complete and sufficient basis for an cir- affirmance. In these legal cumstances there nois interest parties served to be by meeting those Ridgway, issues on their merits. Willets v. 367; 9 Ind. ex State rel. Johnson White Circuit Court, (1948) Ind. 225 77 N.E.2d 298.

VII. SUFFICIENCY OF THE EVIDENCE

Appellant challenges sufficiency Fund next the evi- support dence findings. Finding several of the trial court’s provides: No. 14 “14. Group Annuity Mortality Table —Male by adopted Board, defendant does not have its basis industry’s mortality insurance experience with those engaged teaching profession.”

Appellant points out that the evidence trial at showed upon experience the table was professions, based with several including teachers. finding We construe trial court’s to be upon experience table was not based confined to those engaged teaching profession, construed, and so such finding supported by the evidence.

Findings challenged Nos. 16 and they broadly 18 are because state conclusions about how benefits and women group, as a in the short long terms, compare, without taking selecting into the effect woman account of a one appellant options. the “B” contention While in its correct that the is incorrect in that it reflect the conclusion does not comparison true by of benefits received men and women inaccuracy options, some “B” under not render the does findings support insufficient to under the court’s conclusions Equal Privileges provisions Protection and un- supported. challenged Finding hypo-

In No. the court discusses a thetical situation which a his retired male teacher invests upon extra and earns income that investment. While may assessing the trial court miscalculated the exact might dollar benefit which a man derive such invest- ment, ability to make such an investment does exist serves increase the differential between the benefits received finding men and women. The is intended to illustrate this ability, supported and as sufficiently such is the evidence.

Challenged Findings of Fact Nos. 24 and were made support the trial court in of the trial court’s conclusions application of the different *14 tables for men deny and women process served to due lawof rights by protected and 42 U.S.C. 2000e-2. As those issues §

are not to findings be considered in appeal, this related those issues are irrelevant here. APPOINTMENT,

VIII. COMPENSATION, AND DUTIES

OF SPECIAL MASTER Appellant Fund contends that the trial court committed when, part error judgment, appointed special of its master to determine this the financial resulting liability in provided that case and paid master per be hour $35.00 expenses and ordered the fees and paid of the master be by appellant Fund. After this appellees, order made, was pursuant 53, sought to Ind. R. Tr. P. and obtained order concurring this Court challenged this part judg- of the appeal, appellant ment. On Fund contends that the $35.00 contrary provision per rate is excessive and hour “compensation to be Rule that the allowed master Trial to a judges paid pro in the manner and amount shall be allowed compensation additional and such as is the Su- tern fixed Appellant points preme Court.” Fund out Code Ind. compensation judge (Burns 1973) limits 34-1-13-4 of a day per travel, pro tern to ten five cents a mile for dollars requires compensation pro judge further of a county treasury being, paid tern “be out of for the time county shall have credit for which on settlement with treasury . . .” of state. and therefore the court should trial paid directly agency, not have the master ordered a state paid county. but should have ordered him construe We upon compensation the limitations masters in Trial incorporated Rule 53 and the apply statute to the trial when alone, Supreme court acts concurrence of the without Court appoint compensation and set for a master. Conse- quently these limitations do not bind this Court and trial acting jointly authority court when under the Trial Rule fix, amount, in either manner or compen- the additional special sation due masters.

Appellant also contends that the per rate of hour $35.00 light requirement excessive in em- order that ployees appellant Fund are to assist the master making computations. lawyer his The master is both a accountant, public per certified hour does $35.00 appear unreasonable to us for the person services of a with type training expertise. Appellant presents tending no factual assertions to show the unreasonableness rate, of this and we do not believe that the fact that em- ployees of will the Fund deliver the raw master data to the making for his use the calculations shows it. challenges

Appellant scope Fund next the direction *15 given master to the wherein he is the directed to furnish relating damages court information with amount of Ap- yet retired. have not by female teachers who sustained we brief, their this pellees contention do answer put could such use court can conceive of no We, possible. computation is if, such information indeed instruction judge to delete therefore, the trial such instruct judgment respects, judgment. In other all trial is affirmed. J., opinion;

Hunter, J., concurs; Arterburn, concurs with opinion; J., with- Givan, C.J., Prentice, dissents with dissents opinion. out

Concurring Opinion majority opinion. The J. I concur with Arterburn, showing pre- this that there or evidence- basis for is is no longer Appellant that live sented women teachers lives than men teachers. There is statistical evidence no teaching presented table that shows that profession longer span females have than life males. grant population

I that is considered when as a whole average longer statistics indicate women on the live lives However, than men. I result ascribe common knowledge traditionally engage hazardous in more construction) occupations (such or stressful mining, steel many engaged while women are in household me activities. To such fact comparing colors the mortality tables men and women. solely dealing teaching pro- in this are case with the

We stresses, that the fession. I am inclined believe strains and apply alike professions to the male female hazards of contrary is evidence I con- teacher. Until there must I, therefore, mortality rate same. concur clude opinion affirming majority judgment of the trial court. Dissenting Opinion respectfully majority Givan, C.J. I dissent from the question There no opinion in case. that the stated law *16 majority equal is correct in protection clauses Constitutions of the United States and of Indiana and Rights require Civil Act persons of 1964 all receive equal agree treatment. majority However I do not with the applied that when this law is to the in the case at bar facts separate adoption result an invalidation of the actuarial table for men and women retired for the teachers purpose computation paid of their benefits to be the Teachers’ Retirement Fund. determining

Prior to the of that method of bene- fits, charged equal men teachers and women were teachers premiums retirement, participation, upon their and were given equal monthly fact, benefits. which is Because of the recognized by majority, greater life that women have a expectancy men, unequal than the result was an treatment upon unequal based sex. This treatment favored women retirees, monthly group they in that as a received same benefits, longer period but them received for a of time due longevity. to their

It is obvious from the de- facts the case that the Board unequal prevail termined that such treatment should not equally. sexes should avenues be treated There two were pursue equal which would have resulted in One treatment. charge during was to premium period men a smaller their service, upon give equal payment of actual retirement charge pre- to men equal and women. The other was to an regardless mium sex, upon pay but retirement a smaller monthly obviously amount to the women retirees. The Board chose the latter. majority opinion points no out that some women live

longer and, than fact, some men some live time a shorter given than some men. However fact remains an equal commencing number men and women retirement at time, point died, all when of the men have there still will living approximately be the women retirees who will 17% monthly Theoretically, payment. continue receive their equal death of the woman, at the time of the last amount pay group retirement have been will received group appears of women. It therefore the action Board, depriving persons equal rights, rather than equalized has in fact program. the benefits under the entirely I would therefore hold the Board’s action was proper that it in fact did cure a un- situation was equal far so as the sexes were concerned. reversed, trial court therefore should have been plan upheld. Reported at 360 N.E.2d 171.

Note. — *17 Highway Pappas State Commission N. James Pappas.

and Zoe February 23, 1977.] 277S138. Filed

[No. Sendak, Attorney Theodore L. General, Daily, William E. Deputy Attorney General, appellant. for Brothers, Christ, Joseph

Robert A. John Hadler, C. W. Indianapolis, appellees. for

Dissenting Opinion J. I dissent from the denial of Hunter, transfer Pappas case. James owned a home on Indian Pine Street apolis. property Pappas’s Also located on the business, was shop. Highway sought machine The Indiana State Commission property highway for construction Pappas and offered $12,600 property. Pappas for the was told that if he did accept the he thirty offer would be forced to vacate within days proceedings compensation and that court last would year. property one He deeded the state with under standing remain, that he could paying rent, until found he replacement one-year property. signed. A lease was