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Loncar v. Ducey

Court of Appeals of Arizona, First Division

May 22, 2018

RENEE LONCAR, Plaintiff/Appellant,
v.
DOUG DUCEY, et al., Defendants/Appellees.

          Appeal from the Superior Court in Maricopa County No. CV2016-005335 The Honorable Joshua D. Rogers, Judge

          Robbins & Curtin, P.L.L.C., Phoenix By Joel B. Robbins Co-Counsel for Plaintiff/Appellant

          Ahwatukee Legal Office, P.C., Phoenix, By David L. Abney Co-Counsel for Plaintiff/Appellant

          Arizona Attorney General's Office, Phoenix By Ann R. Hobart, Daniel P. Schaack Co-Counsel for Defendants/Appellees

          Judge James P. Beene delivered the opinion of the Court, in which Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.

          OPINION

          BEENE, JUDGE

         ¶1 Renee Loncar ("Loncar") sued the State of Arizona and its associated representatives (collectively, the "State") for discrimination under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Privileges & Immunities and Preferential Treatment of Employees Clauses of the Arizona Constitution. Loncar claimed the State discriminated against her based on her gender by offering state employee benefits to unmarried same-sex couples but denying those benefits to unmarried heterosexual couples.

         ¶2 We hold that the State did not violate Loncar's state or federal constitutional rights because Loncar and her male domestic partner were not similarly situated with same-sex couples who were legally prohibited from marrying. The State's action was based on marriage eligibility and rationally related to a legitimate government purpose. Accordingly, we affirm the superior court's dismissal of Loncar's sex discrimination claims.

         FACTS AND PROCEDURAL HISTORY

         ¶3 Loncar and her male domestic partner, Christopher Kutcher ("Kutcher"), had a long-term, committed partnership for several decades. They lived together, had two children together, and shared income and expenses, but they were not married. In 2006, Loncar was hired by the State. In 2008, the Arizona Department of Administration and Personnel Board enacted rules giving certain benefits for "domestic partners" of state employees, regardless of sexual orientation. See Ariz. Admin. Code R2-5-101(22) (2008). Because Kutcher was Loncar's domestic partner, she identified him as her dependent for state employee benefits, including coverage for life insurance.

         ¶4 In 2010, the Arizona Legislature enacted Arizona Revised Statutes ("A.R.S.") section 38-651(O), defining "dependent, " as relevant here, to mean "a spouse under the laws of this state, " thereby invalidating Kutcher's previous designation as Loncar's dependent for purposes of receiving state employee benefits. Because same-sex couples were prohibited from marrying in Arizona at that time, their dependent designations for state employee benefits were also negated under A.R.S. § 38-651(O), and they sued for declaratory and injunctive relief. See Collins v. Brewer, 727 F.Supp.2d 797, 815 (D. Ariz. 2010). On July 23, 2010, before the statute's effective date, the United States District Court enjoined the State "from enforcing A.R.S. § 38-651(O) to eliminate family insurance eligibility for lesbian and gay State employees, and their domestic partners" and specifically ordered the State "to make available family health insurance coverage for lesbian and gay State employees . . . to the same extent such benefits are made available to married State employees[.]" Collins, 727 F.Supp.2d at 815. The Ninth Circuit Court of Appeals affirmed, see Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011), and the United States Supreme Court denied the State's petition for writ of certiorari, see Brewer v. Diaz, 133 S.Ct. 2884 (2013). Thus, as of July 2010, same-sex domestic partners were eligible to be dependents for the purposes of state employee benefits, but unmarried opposite-sex domestic partners were not.

         ¶5 On June 7, 2014, Kutcher died in a car accident. Because Kutcher was not Loncar's dependent under A.R.S. § 38-651(O), he had no state life insurance coverage, and Loncar received no insurance benefits following his death. The District Court then dissolved the preliminary injunction effective December 31, 2014, because, as of that date, same-sex couples could legally marry in Arizona and, if they chose to marry, would qualify for state employee benefits under A.R.S. § 38-651(O).

         ¶6 On April 21, 2016, Loncar filed a complaint alleging sex discrimination and seeking "a declaration that the distinction in State benefits between employees in same sex domestic partnerships and different sex domestic partnerships" violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Privileges & Immunities and Preferential Treatment of Employees Clauses of the Arizona Constitution. Loncar also sought the life insurance proceeds to which she would have been entitled if she could have designated Kutcher as her dependent.

         ¶7 The State moved to dismiss, arguing Loncar failed to state a claim upon which relief could be granted because, among other things, A.R.S. ยง 38-651(O) did not confer any privilege on unmarried same-sex couples that it withheld from unmarried heterosexual couples. Loncar countered that the State withheld benefits to unmarried heterosexual couples based solely on her sex as female, a protected class. After full briefing and oral argument, in March 2017, the superior court dismissed Loncar's claims. The court found that (1) "based upon the plain meaning of the term, 'sex' refers only to membership in a class delineated by gender, and not to sexual orientation;" (2) "[a]s [Loncar] conceded at oral argument, sexual orientation is not expressly included in the constitutionally protected class;" (3) Loncar "therefore does not fall within the protected class and may not bring a claim under the Preferential Treatment of Employees Clause for preferential treatment or discrimination based on sexual orientation;" (4) the State did not violate the Equal Protection Clause or the Privileges & Immunities Clause because it "had a reasonable basis in these circumstances for providing life-insurance coverage to unmarried same-sex couples" in complying with the District Court orders; and (5) as determined by the District Court, "same-sex domestic partners were not similarly situated with ...


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