In a 5-2 decision, the Missouri State Supreme Court dismssed an appeal of the denial of survivor benefits in Kelly D. Glossip, Appellant, vs. Missouri Department of Transportation and Highway Patrol Employees' Retirement System, Respondent. The same-sex partner of a Missouri highway patrolman who died on duty in 2009, Kelly Glossip, the 15-year partner of Missouri Highway Patrol Cpl. Dennis Engelhard, is not eligible for pension benefits that would normally go to a spouse because the couple were not married.
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Looks like it is up to SCOTUS now
more info below the fleur de KoS
The amended petition, section IV, decision reads as folows
IV. The Survivor Benefits Statute Is Not a Special Law
Glossip’s amended petition also requests a declaration that the survivor benefits statute is an unconstitutional special law.7 Article III, section 40 of the Missouri Constitution prohibits the legislature from enacting “special laws” when a general law can be made applicable. “Special laws” are “statutes that apply to localities rather than to the state as a whole and statutes that benefit individuals rather than the general public.” Jefferson Cnty. Fire Prot. Dists. Ass’n v. Blunt, 205 S.W.3d 866, 868-71 (Mo. banc 2006). In other words, a special law “includes less than all who are similarly situated ... but a law is not special if it applies to all of a given class alike and the classification is made on a reasonable basis.” Savannah R–III Sch. Dist. v. Pub. Sch. Ret. Sys. of Mo., 950 S.W.2d 854, 859 (Mo. banc 1997) (citation omitted).
When a law is based on open-ended characteristics, it is not facially special and is presumed to be constitutional. Jefferson Cnty., 205 S.W.3d at 870. Classifications are open-ended if it is possible that the status of members of the class could change. Harris v. Mo. Gaming Comm’n, 869 S.W.2d 58, 65 (Mo. banc 1994). An open-ended law is not special as long as the classification is reasonable. Jefferson Cnty., 205 S.W.3d at 870.
The survivor benefits statute is not facially special because the statute’s spousal requirement creates an open-ended class: married couples. This class is open-ended
7 Glossip also argues that section 104.012 is a special law. Glossip lacks standing to challenge section 104.012 for the reasons discussed in Part III.B, so this Court will not address this argument.
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because persons may move in and out of the class in that highway patrol employees may marry and divorce and their spouses may predecease them. See Alderson, 273 S.W.3d at 538 (finding an open-ended class where “employees come and go from the eligible class as they are hired and fired”). Glossip notes that Missouri prohibits same-sex marriage and, therefore, suggests that the category is close-ended. But, as previously discussed, Glossip has elected not to challenge the ban on same-sex marriage. Glossip and Engelhard never married in another state that recognizes same-sex marriage, nor did they attempt to challenge Missouri’s ban on same-sex marriage. This claim is without merit.
Because the survivor benefits statute creates an open-ended class, the statute is presumptively constitutional and valid as long as the classification is reasonable. Jefferson Cnty., 205 S.W.3d at 870. This Court has noted that “[t]he test for whether a statute with an open-ended classification is special legislation under article III, section 40 of the Missouri Constitution is similar to the rational basis test used in equal protection analysis.” Id. For the reasons discussed above, the survivor benefits statute is reasonably related to legitimate state interests.
V. Conclusion
The circuit court’s judgment is affirmed.
Russell, C.J., Breckenridge, Fischer,
Stith and Wilson, JJ., concur;
Teitelman, J., dissents in separate
opinion filed; Draper, J., concurs in opinion of Teitelman.
And for the dissenting opinioon by Richard B. Teitelman, Judge:
V. Conclusion
The statutes at issue discriminate on the basis of sexual orientation. The discrimination is not substantially related to a legitimate state purpose. Consequently, I would reverse the judgment dismissing Glossip’s claim for survivor benefits.
___________
Richard B. Teitelman, Judge
Anyone wnat to take bets after reading the full decision and comparing it to the Windsor v OPM case?