Opinion
MOSK, J.— In this proceeding we consider the constitutionality of present California procedures for prosecution by grand jury indictment. Defendants were charged, in a multiple-count indictment returned by the San Francisco Grand Jury, with conspiracy (Pen. Code, § 182, subd. 4) and grand theft (Pen. Code, § 487, subd. 1); in addition, some of the defendants were individually charged with other offenses.
Defendants were arraigned, and each pleaded not guilty to all counts. Their motion for a dismissal or in the alternative for a postindictment preliminary hearing was in due course denied. Defendants seek a writ of mandate, asserting a right under the due process and equal protection clauses of the federal and state Constitutions to an adversarial preliminary hearing. We find it unnecessary to address the serious due process issue posed because we conclude that an accused is denied the equal protection of the laws guaranteed by article I, section 7, of the California [587]Constitution when prosecution is by indictment and he is deprived of a preliminary hearing and the concomitant rights which attach when prosecution is by information.
I
It is undeniable that there is a considerable disparity in the procedural rights afforded defendants charged by the prosecutor by means of an information and defendants charged by the grand jury in an indictment.1 The defendant accused by information “immediately becomes entitled to an impressive array of procedural rights, including a preliminary hearing before a neutral and legally knowledgeable magistrate, representation by retained or appointed counsel, the confrontation and cross-examination of hostile witnesses, and the opportunity to personally appear and affirmatively present exculpatory evidence. (Pen. Code, § 858 et seq.; Jennings v. Superior Court (1967) 66 Cal.2d 867 [59 Cal.Rptr. 440, 428 P.2d 304].)” (Johnson v. Superior Court (1975) 15 Cal.3d 248, 256 [124 Cal.Rptr. 32, 539 P.2d 792] (conc. opn. by Mosk, J.).)
In vivid contrast, the indictment procedure omits all the above safeguards: the defendant has no right to appear or be represented by counsel, and consequently may not confront and cross-examine the witnesses against him, object to evidence introduced by the prosecutor, make legal arguments, or present evidence to explain or contradict the charge. Penal Code section 939.7 captures the spirit of the proceeding by declaring as a matter of law, “The grand jury is not required to hear evidence for the defendant. . . .” If he is called to testify, the defendant has no right to the presence of counsel, even though, because of the absolute secrecy surrounding grand jury proceedings, he may be completely unaware of the subject of inquiry or his position as a target witness.2 This remarkable lack of even the most basic rights is compounded by the absence from the grand jury room of a neutral and detached magistrate, trained in the law, to rule on the admissibility of evidence and insure that the grand jury exercises its indicting function with proper regard for the independence and objectivity so necessary if it is to fulfill its purported role of protecting innocent citizens from unfounded accusations, even as [588]it proceeds against those who it has probable cause to believe have committed offenses.
The Attorney General recognizes, as he must, that vastly different procedures attend these alternative modes of prosecution, but maintains that such differences are “more apparent than real.” This startling claim is premised on the availability to the accused of judicial review of the grand jury’s probable cause determination. (Pen. Code, §§ 995, 999a.) The defendant in either case, it is urged, is entitled to a judicial determination that the evidence is sufficient to require trial.3
The foregoing argument depends on two erroneous assumptions. It assumes first that the only benefit derived by a defendant from an adversarial preliminary hearing lies in obtaining a judicial determination of probable cause. Yet whatever may be the Legislature’s intent in establishing such a hearing, it serves a number of pragmatic functions for the accused. The United States Supreme Court catalogued some of them in Coleman v. Alabama (1970) 399 U.S. 1, 9-10 [26 L.Ed.2d 387, 396-397, 90 S.Ct. 1999], holding the Alabama preliminary hearing at issue therein to be “a ‘critical stage’ of the State’s criminal process” at which the defendant had a right to “the guiding hand of counsel.”4 The court observed that a “skilled interrogation of witnesses by an experienced lawyer can fashion a vitanmn.eachm.ent tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial.” It went on to recognize the important discovery function served by an adversarial preliminary hearing; such a hearing will assuredly provide the defense with valuable information about the case against the accused, enhancing its ability To.evaluate the desirability of entering a plea or to prepare for trial. The court also noted a less obvious advantage to the defendant 'accorded a preliminary hearing: his counsel may immediately argue before a judge on such matters as the necessity for an early psychiatric examination or setting bail.
[589]These benefits to the defense which inhere in an adversarial preliminary hearing are either completely denied to a defendant charged in a secret, nonadversarial grand jury proceeding, or ultimately realized by such a defendant only to a limited extent. It cannot be seriously argued that an indicted defendant enjoys a comparable opportunity to discover the state’s case and develop evidence because he later obtains a transcript of grand jury proceedings. (Pen. Code, §§ 938.1, 995a.) Such a transcript will invariably reflect only what the prosecuting attorney permits it to reflect; it is certainly no substitute for the possibility of developing further evidence through a probing cross-examination of prosecution witnesses , —a possibility foreclosed with the denial of an adversarial proceeding. There is no other effective means for the defense to compel the cooperation of a hostile witness (see People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523 [143 Cal.Rptr. 609, 574 P.2d 425]); in the unlikely event that all the prosecution witnesses agree to submit to defense interviews, the defense still must incur unnecessary expense and hardship which may be substantial.
The Attorney General further assumes, in asserting that the differences between indictment and information procedures are “more apparent than real,” that the likelihood of a probable cause finding is substantially the same whether the screening function is performed by the grand jury with subsequent judicial review or by a magistrate at a preliminary hearing. This assumption reflects the idealistic concept that the grand jury is an independent body of citizens, standing as a buffer between the state and the individual and protecting the innocent from unfounded accusations of crime. Unfortunately, grand jury proceedings today are structured in a/ manner that renders fulfillment of the ideal unattáinable.
The prosecuting attorney is typically in complete control of the total process in the grand jury room: he calls the witnesses, interprets the evidence, states and applies the law, and advises the grand jury on whether a crime has been committed. (See Judicial Council of Cal., Annual Rep. (1974) p. 58; Kranitz, The Grand Jury: Past—Present—No Future (1959) 24 Mo.L.Rev. 318, 328; Calkins, Abolition of the Grand Jury Indictment in Illinois (1966) U.Ill.L.F. 423, 431.) The grand jury is independent only in the sense that it is not formally attached to the prosecutor’s office; though legally free to vote as they please, grand jurors virtually always assent to the recommendations of the prosecuting attorney, a fact borne out by available statistical and survey data. (See Morse, A Survey of the Grand Jury System (1931) 10 Ore.L.Rev. 101, 153-154, 304, 325-326; Note, Some Aspects of the California Grand Jury [590]System (1956) 8 Stan.L.Rev. 631, 653-654; Note, Evaluating the Grand Jury’s Role in a Dual System of Prosecution: An Iowa Case Study (1972) 57 Iowa L.Rev. 1354, 1369.) Indeed, the fiction of grand jury independence is perhaps best demonstrated by the following fact to which the parties herein have stipulated: between January 1, 1974, and June 30, 1977, 235 cases were presented to the San Francisco Grand Jury and indictments were returned in all 235.
The pervasive prosecutorial influence reflected in such statistics has led an impressive array of commentators to endorse the sentiment expressed by United States District Judge William J. Campbell, a former prosecutor: “Today, the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.” (Campbell, Eliminate the Grand Jury (1973) 64 J.Crim.L. & C. 174.) Another distinguished federal jurist, Judge Marvin E. Frankel, put it this way: “The contemporary grand jury investigates only those whom the prosecutor asks to be investigated, and by and large indicts those whom the prosecutor wants to be indicted.” (Frankel & Naftalis, The Grand Jury: An Institution on Trial (1977) p. 100.) (Also see Antell, The Modern Grand Jury: Benighted Supergovernment (1965) 51 A.B.A.J. 153, 154-155; Alexander & Portman, Grand Jury Indictment Versus Prosecution by Information—An Equal Protection—Due Process Issue (1974) 25 Hastings L.J. 997; Graham & Letwin, The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations (1971) 18 UCLA L.Rev. 635, 680-681; Moley, The Initiation of Criminal Prosecutions by Indictment or Information (1931) 29 Mich.L.Rev. 403, 414-415, 430; Weinberg & Weinberg, The Congressional Invitation to Avoid the Preliminary Hearing: An Analysis of Section 303 of the Federal Magistrates Act of 1968 (1969) 67 Mich.L.Rev. 1361, 1380; Meshbesher, Right to Counsel Before Grand Jury (1966) 41 F.R.D. 189, 189-190; Coates, The Grand Jury, The Prosecutor’s Puppet. Wasteful Nonsense of Criminal Jurisprudence (1962) 33 Pa.B.A.Q. 311, 314-315; Comment, The Illinois Constitution, Article I, Section 7—Seeking a Rational Determination of Probable Cause (1975) 24 De Paul L.Rev. 559, 561-565; Note, A Constitutional Right to Preliminary Hearings for All Pretrial Detainee’s [sic] (1974) 48 So.Cal.L.Rev. 158, 170-173; Boudin, The Federal Grand Jury (1972) 61 Geo.L.J. 1, 35; Shannon, The Grand Jury: True Tribunal of the People or Administrative Agency of the Prosecutor? (1972) 2 N.M.L.Rev. 141, 142; Foster, Grand Jury Practice in the 1970’s (1971) 32 Ohio St.L.J. 701, 702; Schwartz, Demythologizing the Historic Role of the Grand Jury (1972) 10 Am. Crim. L.Rev. 701, 703; Tigar & Levy, The Grand Jury as the New Inquisition (1971) 50 Mich.St.B.J. 693, [591694]; Comment, Federal Grand Jury Investigation of Political Dissidents (1972) 7 Harv. Civ. Rights-Civ. Lib. L.Rev. 432,438-443; Wise, Criminal Law and Procedure (1974) 20 Wayne L.Rev. 365, 377-378; Gerstein & Robinson, Remedy for the Grand Jury: Retain but Reform (1978) 64 A.B.A.J. 337, 340.) Justice Douglas put the matter succinctly when he wrote: “It is, indeed, common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive.” (United States v. Dionisio (1972) 410 U.S. 1, 23 [35 L.Ed.2d 67, 82, 93 S.Ct. 764] (dis. opn.).)
The domination of grand jury proceedings by the prosecuting attorney no doubt derives at least in part from the grand jury’s institutional schizophrenia: it is expected to serve two distinct and largely inconsistent functions—accuser and impartial factfinder. (See Comment, The Preliminary Hearing Versus the Grand Jury Indictment: “Wasteful Nonsense of Criminal Jurisprudence” Revisited (1974) 26 U.Fla.L.Rev. 825, 836-838, 842-843; Note, Criminal Law—Grand Juries, Exemplars and Prosecutors (1973) 22 De Paul L.Rev. 737, 749-750.) In one role, “Basically the grand jury is a law enforcement agency” (United States v. Cleary (2d Cir. 1959) 265 F.2d 459, 461, and cases cited), participating in the prosecutorial task of discovering criminal conduct and the perpetrators thereof; putting on its other hat, the grand jury is expected to be a neutral body, protective of the individual against prosecutorial abuses. It seems self-evident that to the extent it succeeds at one function it must fail at the other. Almost all observers of the system conclude that this conflict of roles has prevented the grand jury from being objective, generally to the detriment of indicted defendants.
The problem of excessive prosecutorial influence is not solved by the t availability of judicial review, for the same lack of objectivity, however 1 inadvertent, which affects the grand jurors when they vote to indict 5 injects the record for purposes of review. Excluded from the grand jury j room,'The defense has no opportunity to conduct the searching cross- / examination necessary to reveal flaws in the testimony of prosecution' witnesses or to expose dubious eyewitness identifications.5 This lack of defense participation jn the development of the reviewable record creates a heavy bias in favor of a finding that the grand jury indictment was based on probable cause. For example, in United States v. Boberg (8th [592]Cir. 1977) 565 F.2d 1059, the federal appellate court emphasized that the prosecutor’s interrogation of the defendant as a witness before the grand jury consisted “almost entirely of leading questions,” and the ensuing indictment rested on the defendant’s “cryptic responses” to such questions. The court admonished that “This kind of interrogation always creates a great risk that the witness will misunderstand the questions or that the prosecutor will put words in the witness’ mouth,” and warned all prosecutors that it would “strictly scrutinize for fairness” any similar indictment obtained thereafter. (Id., at pp. 1062-1063.)
It is clear from the foregoing that a defendant charged by indictment is seriously disadvantaged in contrast to a defendant charged by information. (See also Dash, The Indicting Grand Jury: A Critical Stage? (1972) 10 Am. Crim. L.Rev. 807, 814-815; Judicial Council of Cal., Annual Rep. (1974) pp. 47, 52-55.) Indeed, current indictment procedures create what can only be characterized as a prosecutor’s Eden: he decides what evidence will be heard, how it is to be presented, and then advises the grand jury on its admissibility and legal significance. In sharp contrast are information procedures in which the defendant is entitled to an adversarial, judicial hearing that yields numerous protections, including a far more meaningful probable cause determination. Yet the prosecuting attorney is free in his completely unfettered discretion to choose which defendants will be charged by indictment rather than information and consequently which catalogue of rights, widely disparate though they may be, a defendant will receive. He may act out of-what hcbelieves to be próperjaw enforcement motives, or he may act whimsically; no case law or statutory°guidelines exist to circumscribe his discretion. We examine below the constitutionality of permitting the prosecuting attorney to make such discriminatory classifications.
II
Under the traditional two-tier test of equal protection, a discriminatory legislative classification that impairs fundamental rights will be subjected to strict scrutiny by the courts, and the state will be required to bear the heavy burden of proving not only that it has a compelling interest which justifies the classification but also that the discrimination is necessary to promote that interest. (See, e.g., Serrano v. Priest (1976) 18 Cal.3d 728, 761 [135 Cal.Rptr. 345, 557 P.2d 929], and cases cited.)
For the reasons stated in part I, ante, the denial of a postindictment preliminary hearing deprives the defendant of “such fundamental [593]rights as counsel, confrontation, the right to personally appear, the right to a hearing before a judicial officer, and the right to be free from unwarranted prosecution. These guarantees are expressly or impliedly grounded in both the state and federal Constitutions and must by any test be deemed ‘fundamental.’ ” (Johnson v. Superior Court (1975) supra, 15 Cal.3d 248, 266 (conc. opn. by Mosk, J.).)
The Attorney General fails to discharge his burden of proof under this test. His sole attempt to do so is to list in his brief a few tactical advantages gained by the prosecutor who chooses to use the indictment procedure.6 But none of these reasons amounts to a constitutionally xcompelling” state interest that justifies depriving an indicted defendant of the above-discussed fundamental rights ^guaranteed to him in a preliminary hearing. Ñor, indeed, does the Attorney General make any effort to show that this discrimination is constitutionally “necessary” to preserve any such advantages.
We conclude that the denial of a postindictment preliminary hearing deprived defendants herein of equal protection of the laws guaranteed by article I, section 7, of the California Constitution.7
III
The appropriate remedy for the constitutionally infirm treatment of indicted defendants is not to eliminate or alter radically the general indicting function of the grand jury; indeed, that function is explicitly sanctioned in the California Constitution (art. I, §§ 14, 23) and specifically implemented by the Legislature (Pen. Code, § 888 et seq.). Until such time as the Legislature 'may prescribe other appropriate procedures, the remedy most consistent with the state Constitution as a whole and least intrusive on the Legislature’s prerogative is simply to permit the [594]indictment process to continue precisely as it has, but to recognize the right of indicted defendants to demand a postindictment preliminary hearing prior to or at the time of entering a plea, if the defendant makes a timely request for such a preliminary hearing, at the direction of the court the prosecuting attorney shall refile the indictment as a complaint, thus activating the procedures set forth in the Penal Code (see Pen. Code, § 859 et seq.).8
The state pmsíhutionaí provision recognizing the grand jury’s indicting function-Á-article I, section 14—lis no bar to our holding herein. It provides, “Felonies.shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.” The term “law,” of course, encompasses judicial decisions as well as legislative enactments. (Cf. Evid. Code, § 160.) Thus, while the Constitution authorizes the use of grand juries to indict criminal defendants, it leaves to the Legislature and the courts the task of developing procedures, consistent with other state constitutional provisions, for implementing that mode of initiating prosecutions.9
Because of previous reliance by the bench and bar on the validity of current postindictment procedures, the rule announced herein shall apply only to the present case and to those indicted defendants who have not entered a plea at the time this opinion becomes final. (See, e.g., People v. Cook (1978) 22 Cal.3d 67, 99, fn. 18 [148 Cal.Rptr. 605, 583 P.2d 130] and cases cited.)
[595]Let a peremptory writ of mandate issue directing the trial court to proceed in accordance with the views expressed herein.
Tobriner, J., Manuel, J., and Newman, J., concurred.
MOSK, J. My opinion prepared for the court concludes that the current indictment procedures violate traditional standards of equal protection. I am, of course, in agreement with the majority of my colleagues on that issue.
Nevertheless I am taking the liberty of explaining why, if ours were not a collegial body and mine was the responsibility alone, I would apply a new and refined test. My diagnosis of the theoretic and pragmatic fallacies in the traditional two-tier test of equal protection suggests the need for adoption of.a third, or intermediate, test. As I shall discuss below, in my view the ultimate acceptance of an intermediate test is foreordained in Supreme Court opinions: the question is not whether, but when, the third test will become standard. I regret that our court has failed to forthrightly assume leadership among the states on this important question of constitutional law.
Before proceeding with additional discussion of the subject, I point out that it is not unprecedented for a justice to write a separate concurrence to an opinion of which he was the author for the court. (See, e.g., Justice Brennan’s concurrence to the Brennan opinion for the court in Abbate v. United States (1959) 359 U.S. 187, 196 [3 L.Ed.2d 729, 735, 79 S.Ct. 666]; accord, Wheeling Steel Corp. v. Glander (1949) 337 U.S. 562, 576 [93 L.Ed. 1544, 1552, 69 S.Ct. 1291]. (“It cannot be suggested that in cases where the author is the mere instrument of the Court he must forego expression of his own convictions”) (per Jackson, J.).)
I
We have consistently recognized that the principle of equal protection of the laws embodied in the California Constitution, though it does not absolutely bar the state from distinguishing between groups of individuals and treating them differently, requires that classifications be justified by legitimate state objectives. (See, e.g., In re King (1970) 3 Cal.3d 226, 232 [90 Cal.Rptr. 15, 474 P.2d 983]; Brown v. Merlo (1973) 8 Cal.3d 855, 861 [106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505].)
[596]The United States Supreme Court, in applying the federal equal protection clause, has developed a two-tier analytical framework for reviewing legislative classifications. The less intensive standard of review requires only that the classification be rationally related to a legitimate state end. This standard, until recently at least, has proved in practice to be so deferential to legislative judgment that it has been aptly described as providing “minimal scrutiny in theory and virtually none in fact.” (Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection (1972) 86 Harv.L.Rev. 1, 8 (hereinafter Gunther).) One federal judge has pithily concluded that this test means, “In other words, hands off.” (Vance v. United States (N.D.Tex. 1977) 434 F.Supp. 826, 834, affd. per curiam (5th Cir. 1977) 565 F.2d 1214.) Such abdication of the power of judicial review is primarily a reaction—or overreaction—to what came to be perceived by the late 1930’s as excessive judicial intervention on grounds of substantive due process. (See Wilkinson, The Supreme Court, the Equal Protection Clause, and the Three Faces of Constitutional Equality (1975) 61 Va.L.Rev. 945, 948 (hereinafter Wilkinson).)
Far more intensive review has characterized the “strict scrutiny” standard, which requires that classifications be necessary to achieve a compelling state interest. This test evolved subsequently to the rational basis standard; it derived from a concept that the denial of certain rights—so important that they are “fundamental”—and the use of certain classifications—so sensitive that they are “suspect”—are rarely, if ever, justified and require a much more stringent standard of review. (See Goodpaster, The Constitution and Fundamental Rights (1973) 15 Ariz.L. Rev. 479, 486-487 (hereinafter Goodpaster); Wilkinson, supra, at p. 945.) Application of the strict scrutiny test has yielded conclusions substantially different from those which result from the rational basis test: it has tended to provide scrutiny that has been “ ‘strict’ in theory and fatal in fact.” (Gunther, supra, at p. 8; see also Gellhorn & Hornby, Constitutional Limitations on Admissions Procedures and Standards—Beyond Affirmative Action (1974) 60 Va.L.Rev. 975, 986; Ackerman, The Conclusive Presumption Shuffle (1977) 125 U.Pa.L.Rev. 761, 774.)
The two-tier system of reviewing equal protection claims has been criticized by many thoughtful observers as a rigid and artificial analytical structure. Leading the assault has been Justice Thurgood Marshall, who has characterized the two-tier mode of analysis as “outdated and intellectually disingenuous.” (Beal v. Doe (1977) 432 U.S. 438, 457 [53 L.Ed.2d 464, 479, 97 S.Ct. 2366] (dis. opn.).) Justice Marshall summarized his consistently expressed views in a dissent to the court’s opinion in San [597]Antonio School District v. Rodriguez (1973) 411 U.S. 1, 98-99 [36 L.Ed.2d 16, 80-81, 93 S.Ct. 1278]; “I must once more voice my disagreement with the Court’s rigidified approach to equal protection analysis. See Dandridge v. Williams, 397 U.S. 471, 519-521 (1970) (dissenting opinion); Richardson v. Belcher, 404 U.S. 78, 90 (1971) (dissenting opinion). The Court apparently seeks to establish today that equal protection cases fall into one of two neat categories which dictate the appropriate standard of review—strict scrutiny or mere rationality. But this Court’s decisions in the field of equal protection defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause. This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn.” (See also Massachusetts Bd. of Retirement v. Murgia (1976) 427 U.S. 307, 318-321 [49 L.Ed.2d 520, 527-530, 96 S.Ct. 2562] (dis. opn. by Marshall, J.).) And Justice Marshall set forth his perception of the proper inquiry in his majority opinion, signed by six other justices, in Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 95 [33 L.Ed.2d 212, 216, 92 S.Ct. 2286]; “As in all equal protection cases . . . the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment.” (Italics added.)
Other judges and commentators have endorsed the view that the traditional framework for equal protection analysis is deficient in concept and frequently ignored in practice. Justice White did so explicitly in Vlandis v. Kline (1973) 412 U.S. 441, 458-459 [37 L.Ed.2d 63, 75-76, 93 S.Ct. 2230] (conc. opn.), and Justice Powell implicitly with his conspicuous avoidance of two-tier rhetoric in Weber v. Aetna Casualty & Surety Co. (1972) 406 U.S. 164, 172-173 [31 L.Ed.2d 768, 777-778, 92 S.Ct. 1400]. (See also Gunther, supra; Bennett, Liberty, Equality, and Welfare Reform (1973) 68 Nw.U.L.Rev. 74, 96; Gellhorn & Hornby, op. cit. supra, 60 Va.L.Rev. at pp. 986-988; Karst, The Supreme Court, 1976 Term—Foreword: Equal Citizenship Under the Fourteenth Amendment (1977) 91 Harv.L.Rev. 1, 3; Francis v. Cleland (D.S.D. 1977) 433 F.Supp. 605, 618-619; Hoover v. Meiklejohn (D.Colo. 1977) 430 F.Supp. 164, 167-168; Gilpin v. Kansas State High School Activities Assn., Inc. (D.Kan. 1974) 377 F.Supp. 1233, 1238-1239; McIlvaine v. Pennsylvania State Police (1973) 454 Pa. 79 [309 A.2d 801, 807-811] (dis. opn.); Schwartz v. Talmo (1973) 295 Minn. 356 [205 N.W.2d 318, 324-325] (dis. opn.).)
[598]In short, the vice of the traditional approach is that it applies either a standard that is virtually always met or one that is almost never satisfied. Professor Wilkinson observed that the attempt to apply “two widely variant levels of scrutiny with no gradations for rights of intermediate importance” must prove unsatisfactory “because, as Professor Freund once remarked, the world does not move on a ‘binary principle.’ ” (Wilkinson, supra, at p. 948, fn. 15.)
The broad analytical lacuna thus remaining would be filled if an intermediate approach were adopted; it has not yet gained widespread acceptance, however, no doubt because of a hesitance to develop an unstructured standard that might appear to invite judicial intervention in policymaking preferably left to political agencies. But any court that is so inclined can perform simple legal legerdemain and reach a predetermined result by maneuvering such conclusory labels as “suspect” or “fundamental.” Even the most responsible application of the traditional analysis inevitably involves a certain measure of judicial balancing, for the scope of such terms as “rational,” “legitimate,” “compelling,” or “necessary” remains largely a matter of opinion. The tendency of courts to manipulate words and meanings to avoid the rigidity of the two-tier framework has prompted one commentator to write: “Working with due process and equal protection opinions dealing with fundamental rights is like playing [the croquet match in Alice in Wonderland] . . . , using concepts that bend or fall limp to chase words that move with a mind of their own into categories which just are not there any more. We quickly learn: this is not the game we thought we were playing.” (Goodpaster, supra, at p. 479.)
In recent cases, the United States Supreme Court has apparently developed an intermediate level of review in response to “a perception that the all-or-nothing choice between minimum rationality and strict scrutiny ill-suits the broad range of situations arising under the equal protection clause, many of which are best dealt with neither through the virtual rubber-stamp of truly minimal review nor through the virtual death-blow of truly strict scrutiny, but through methods more sensitive to risks of injustice than the former and yet less blind to the needs of governmental flexibility than the latter.” (Tribe, American Constitutional Law (1978) p. 1089 (hereinafter Tribe).) That equal protection standards are in a state of flux—and that a third standard of review is emerging— has been widely recognized. (See, e.g., Acha v. Beame (S.D.N.Y. 1977) 438 F.Supp. 70, 78; Gay Students Org. of U. of New Hampshire v. Bonner (D.N.H. 1974) 367 F.Supp. 1088, 1096-1097, affd. and mod. (1st Cir. 1974) 509 F.2d 652; Tribe, supra, at pp. 1082-1092; Simson, A Method for [599]Analyzing Discriminatory Effects Under the Equal Protection Clause (1977) 29 Stan.L.Rev. 663, 665-666; Wilkinson, supra, at pp. 951-953; Goodpaster, supra, at pp. 501-504; Ackerman, op. cit. supra, 125 U.Pa.L. Rev. at pp. 774-775; Karst, op. cit. supra, 91 Harv.L.Rev. at p. 23, fn. 122; Note, A Question of Balance, Statutory Classifications Under the Equal Protection Clause (1973) 26 Stan.L.Rev. 155, 157-160; Note, The Supreme Court of California, 1972-1973 (1974) 62 Cal.L.Rev. 408, 462.)
The new standard, thus far most closely associated with discrimination based on classifications by gender or the status of illegitimacy, was clearly articulated in Craig v. Boren (1976) 429 U.S. 190, 197 [50 L.Ed.2d 397, 407, 97 S.Ct. 451]: “To withstand constitutional challenge . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” The vitality of “middle-level scrutiny” was subsequently confirmed when this language was quoted and the new standard applied in Califano v. Goldfarb (1977) 430 U.S. 199, 210-211 [51 L.Ed.2d 270, 279, 97 S.Ct. 1021], and Califano v. Webster (1977) 430 U.S. 313, 316-317 [51 L.Ed.2d 360, 363-365, 97 S.Ct. 1192].1
Justice Marshall’s opinion for the court in Zablocki v. Redhail (1978) 434 U.S. 374 [54 L.Ed.2d 618, 98 S.Ct. 673], indicates the new intermediate mode of review may be more generally applied. The equal protection analysis there presented carefully avoided the two tiers of traditional review and focused instead on such factors as the importance of the rights involved, the extent to which the classification at issue interfered with their exercise, and the significance of the state interests advanced in support of the classification. The court concluded that the statutory classification could not “be justified by the interests advanced in support of it.” (Id., at p. 391 [54 L.Ed.2d at p. 633, 98 S.Ct. at p. 683].) Several other Supreme Court justices have accorded explicit recognition to the development of an intermediate level of review. In his dissenting opinion in Craig v. Boren (1976) supra, 429 U.S. 190, 218 [50 L.Ed.2d 397, 420], Justice Rehnquist observed that the court was applying an “elevated or ‘intermediate’ level scrutiny.” Concurring in Craig, Justice Powell remarked that the court subjects gender-based classifications to “a more critical examination than is normally applied when ‘fundamental’ constitutional rights and ‘suspect classes’ are not present.” (Id., at p. 210 [50 [600]L.Ed.2d at p. 415]; see also id., at pp. 211-214 [50 L.Ed.2d at pp. 415-417] (conc. opn. by Stevens, J.).) Dissenting in Moore v. East Cleveland (1977) 431 U.S. 494, 551 [52 L.Ed.2d 531, 569-570, 97 S.Ct. 1932], Justice White catalogued the three levels of review: strict scrutiny, “the somewhat less strict standard of Craig v. Boren,” and “the generally applicable standard” (the rational basis test).2
This court, in reviewing discriminatory classifications, has most often simply stated and applied the traditional test devised by the United States Supreme Court. (See, e.g., In re Antazo (1970) 3 Cal.3d 100, 110-111 [89 Cal.Rptr. 255, 473 P.2d 999]; Serrano v. Priest (1971) 5 Cal.3d 584, 597 [96 Cal.Rptr. 601, 487 P.2d 1241].) We have not in any manner indicated, however, that we view the two-tier approach as the ultimate framework for equal protection analysis rather than merely a developmental stage in the evolution of appropriate standards for testing the constitutional sufficiency of legislative classifications. Indeed, in Brown v. Merlo (1973) supra, 8 Cal.3d 855, 861, the equal protection standard applied by Justice Tobriner, speaking for a unanimous court, was couched in terms of the formulation set forth in Reed v. Reed (1971) 404 U.S. 71, 75-76 [30 L.Ed.2d 225, 229, 92 S.Ct. 251], with citations to Eisenstadt v. Baird (1972) 405 U.S. 438, 446-447 [31 L.Ed.2d 349, 358, 92 S.Ct. 1029], and Weber v. Aetna Casualty & Surety Co. (1972) supra, 406 U.S. 164, 173 [31 L.Ed.2d 768, 777]—all cases which have been regarded as fashioning a new intermediate level of review. Moreover, we have exercised independence in our application of the state equal protection clause, finding rights to be fundamental (see, e.g., Serrano v. Priest (1976) 18 Cal.3d 728, 760-766 [135 Cal.Rptr. 345, 557 P.2d 929]) and classifications to be suspect (see, e.g., id.; In re Antazo (1970) supra, 3 Cal.3d 100, 112; Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351]) where the United States Supreme Court has declined to do so. We [601]have thus demonstrated that “our state equal protection provisions, while ‘substantially the equivalent of the guarantees contained in the Fourteenth Amendment to the United States Constitution, are possessed of an independent vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable.” (Serrano v. Priest, supra, 18 Cal.3d at p. 764.)
For the foregoing reasons I urge that we refine our articulation of the standards for applying the state equal protection clause. As Professor Tribe put it, “there seems little likelihood that equal protection analysis will ever again be neatly separable into two dramatically polar forms of review . . . .” (Tribe, supra, at p. 1089.) In my view we should adopt a variation of the intermediate level of review discussed above, applicable when rights important—but not “fundamental”—are denied, or when a classification sensitive—but not “suspect”—is made. Such rights and bases of classification do not trigger strict scrutiny under traditional equal protection analysis, and should not do so; but neither is the weak rational basis standard adequate to test the constitutionality of measures which discriminatorily deny important rights or make classifications based on sensitive criteria.
When such rights or classifications are implicated, it is necessary to examine the importance of the state interests involved and the extent to which they are promoted. The proper inquiry is this: Does the classification significantly further important state interests? I recognize, of course, that the emphasized concepts are no more exact than those invoked in the traditional two-tier approach. But the existence of an intermediate level of scrutiny will give California courts the flexibility needed to adjust their analysis of equal protection claims to conform with reality. A standard of review formulated in this manner will allow our courts, for example, to consider such critical factors as “the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification.” (Dandridge v. Williams (1970) supra, 397 U.S. 471, 521 [25 L.Ed.2d 491, 522-523] (dis. opn. by Marshall, J.).)
The adoption of an intermediate standard of review would not effect a dramatic change in the law of equal protection; it is, rather, substantially the same test the United States Supreme Court now applies regularly in gender discrimination cases, on the theory that gender-based classifications may not quite qualify as “suspect” but are the closest thing to it and thus deserve much more careful scrutiny than the weak rational basis test [602]provides. Use of a basis of classification so sensitive—though not suspect—requires inquiry into the importance of the state interests involved and the extent to which they are furthered. The discriminatory denial of rights not quite fundamental, but close to being fundamental, logically requires a similar inquiry. Thus Professor Tribe explained that “intermediate scrutiny has been triggered if important, though not necessarily ‘fundamental’ or ‘preferred,’ interests are at stake” or “if sensitive, although not necessarily suspect, criteria of classification are employed.” (Tribe, supra, at pp. 1089-1090.)
It is argued in defense of the old system of review that the two-level test is reasonably simple to apply, in contrast to substantial difficulties of application forecast for the three-level test proposed herein. The relative simplicity of application of two-tier review, however, is a direct consequence of the glacial rigidity of that system. As noted above, fundamental rights and suspect classifications trigger a scrutiny so strict that invalidation of the legislative scheme is usually assured; all other rights and classifications are “tested” by “a largely meaningless requirement of rationality.” (Id., at p. 1089.) This wide chasm between levels of review is entirely unjustified, given the broad spectrum of rights and classifications that demand equal protection analysis.
Equally unpersuasive is the claim that two-tier review has proven effective because the lower standard, despite the minimal scrutiny it entails, has occasionally been used to strike down offending legislation. That the extremely deferential test may indeed suffice to invalidate invidiously discriminatory legislation within a very narrow ambit—those few cases involving legislation so arbitrary as to bear no rational relation to statutory purposes—does not establish the efficacy of two-tier analysis. That analysis is simply not capable of providing meaningful review of legislation which denies rights that are almost, but not quite, fundamental, or makes classifications almost, but not quite, suspect. Invariably such legislation will be upheld—if the test is applied honestly according to its terms—as long as some minor state interest is promoted in a marginal way, even though the rights denied are very important or the basis of classification is highly sensitive.
If on the other hand such legislation is invalidated under the two-tier test, it will be at the cost of distorting the rational basis standard either by denigrating the asserted state interest or by denying that the statute promotes that interest. Such “unadmitted but opportune inflation of the rational basis standard” thus masks a decisional process significantly different from the one purportedly applied. (Goodpaster, supra, at [603]pp. 503-504.) Far preferable is an analytical framework that need not be distorted—or ignored—in order to fairly evaluate equal protection claims.
It is such a framework that I urge we adopt. Introducing a third tier of review would merely extend a process that already occurs, although to a limited extent, under the old system of equal protection review. The concepts of fundamentality, rationality, and the necessity and compelling nature of state purposes require an assessment of the importance of rights and interests, the sensitivity of classifications, and the significance of the promotion of state concerns. The intermediate level of scrutiny focuses on the same factors, but permits a more refined and less rigid analysis.
It has been abundantly clear to the United States Supreme Court, which developed the third tier of analysis for application in cases involving discrimination based on gender or the status of illegitimacy, to the individual Supreme Court justices who have criticized the old equal protection mode of review and favored a more flexible process, and to the many distinguished commentators cited herein, that the carefully formulated three-tier system of review I propose does not inject intolerable uncertainties into equal protection analysis. Augmenting the old approach in this manner fills an analytical crevasse that has obstructed the reasonable resolution of competing interests in this sensitive area. In the second portion of this opinion I shall illustrate the operation of the intermediate level of analysis by applying it to the facts of the case at bar.
II
Part I of the majority opinion enumerates the many rights granted under information procedures but denied under indictment procedures. As shown therein, the distinction has serious practical consequences for indicted defendants, causing them to receive a substantially less meaningful probable cause determination and a much inferior opportunity to prepare for trial. Such defendants are thus denied rights of sufficient importance to activate the intermediate level of review described above. We have previously recognized the “fundamental principle . . . that justice must be administered to all persons equally.” (In re Antazo (1970) supra, 3 Cal.3d 100, 109.) The dedication of our constitutional system to affording equal justice compels us to examine closely the justifications asserted for the differential treatment of criminal defendants. (See Griffin v. Illinois (1956) 351 U.S. 12 [100 L.Ed. 891, 76 S.Ct. 585, 55 A.L.R.2d 1055]; Douglas v. California (1963) 372 U.S. 353 [9 L.Ed.2d 811, 83 S.Ct. 814].)
[604]The reasons usually given by prosecutors for choosing to initiate prosecutions by indictment include the following: indictment procedures (1) save time; (2) protect witnesses against embarrassing cross-examination; (3) protect an innocent accused when no indictment is returned; (4) protect the cover of an informant; (5) protect witnesses against harm or intimidation; (6) allow the prosecuting attorney to test his case and obtain a community viewpoint on its strength; (7) permit the evidentiary hearing to be held over an extended period of time; (8) facilitate investigations, e.g., by providing subpoena availability without the initiation of formal proceedings; (9) allow the prosecutor to toll the statute of limitations when the defendant is absent (Pen. Code, §§ 800, 803); (10) protect the defendant from prejudicial pretrial publicity; (11) protect society from the flight of the accused; and (12) permit the prosecuting attorney to share responsibility for the prosecution with the grand jury when there is great public interest in a case. (See Judicial Council of Cal., Annual Rep. (1974) pp. 47-51; Graham & Letwin, The Preliminary Hearings in Los Angeles: Some Field Findings and Legal-Policy Observations (1971) 18 UCLA L.Rev. 636, 679; Note, Some Aspects of the California Grand Jury System (1956) 8 Stan.L.Rev. 631, 644; Margolin & Arguimbau, Post-Indictment Preliminary Hearings in California, in Fourteenth Annual Defending Criminal Cases (P.L.I. 1976) p. 286.)
Many of the foregoing reasons for utilizing indictment procedures do indeed reflect legitimate state interests promoted by the availability of such procedures; but it is irrelevant to the issue before us that any interests are furthered by the availability of indictment procedures, Indicted defendants are disadvantaged not because of any irrevocable misfortune visited upon them during the course of grand jury proceedings; their disadvantage derives rather from the denial of the many important benefits that inhere in an adversary proceeding. The constitutional issue posed is whether indicted defendants may be denied the adversarial preliminary hearing afforded other defendants—not whether they may be indicted in the first instance. The proper focus of the inquiry, therefore, is whether important state interests are significantly furthered by the denial of an adversary hearing.
It is clear from an examination of the interests promoted by indictment procedures that, with two exceptions discussed below, none of such interests is enhanced in the slightest degree by the denial of a postindictment preliminary, hearing. Thus the statute of limitations would still be tolled for absent defendants according to the provisions of Penal Code sections 800 and 803; the secrecy of grand jury proceedings would remain [605]intact, permitting the prosecutor to test his case or invoke the investigative powers of the grand jury, and protecting the accused when no indictment is returned; similarly, witnesses and informants would enjoy precisely the same protection wither without a postindictment preliminary hearing because their identities" become known to the defendant upon return of the indictment and delivery to him of a transcript of the grand jury proceedings (Pen. Code, §§ 938.1, 995a); and the defendant could avert the threat of prejudicial pretrial publicity by waiving his right to a preliminary hearing or demanding that the public be excluded under the mandatory provisions of Penal Code section 868 (People v. Elliot (1960) 54 Cal.2d 498, 504 [6 Cal.Rptr. 753, 354 P.2d 225]). Because these interests are not significantly furthered—indeed, they arenot furthered at all—by the denial, of a preliminary hearing to indicted defendants, they do not justify such discriminatory treatment.
Only two of the reasons claimed by prosecutors for choosing to charge by indictment rather than information implicate interests that are promoted by the denial of a postindictment preliminary hearing. First, indictment procedures save time—particularly, as the Attorney General suggests, in complex cases when a preliminary hearing could be lengthy. The saving is realized, of course, because of the abbreviated process made possible by the discriminatory denial of adversary safeguards; whatever its origin, however, it is nonetheless a factor. Second,.indict-, ment procedures permit evidence ta be heard over an extended period, flnifTacilitating'the scheduling of appearances by witnesses.
The advantages of saving time and facilitating scheduling would concededly be diminished to the extent defendants were to demand a postindictment preliminary hearing. In addition, exercise of such a right would oblige the prosecuting attorney to repeat the same evidence when, for any of the other legitimate reasons listed above, he has elected to employ the grand jury indicting function. Thus, denial of the right to a postindictment preliminary hearing furthers the state’s interests in administrative convenience and conservation of judicial resources. But as will appear, these interests are neither sufficiently important nor sufficiently promoted to justify depriving indicted defendants of the significant rights which attend adversaiy proceedings.
To begin with, the percentage of defendants charged by indictment is remarkably and consistently low. In the years 1968 through 1971, for example, only 3.9 percent of the felony filings in California were prosecuted by indictment (Cal. Dept, of Justice, Bureau of Crim. Stats., [606]Crime and Delinquency in Cal. (1971) p. 42); further, the parties herein have stipulated that less than 3.5 percent of the cases prosecuted in the San Francisco Superior Court between June 30, 1973, and July 1, 1976, were initiated by indictment. The actual duplication of prosecutorial effort and administrative burden resulting from providing indicted defendants with a preliminary hearing would thus be minimal. The Attorney General may be correct in surmising that the relatively small number of indictments might yield a disproportionate increase in consumed court time because complex cases currently prosecuted by indictment would require relatively lengthy adversary hearings. This added burden would be offset to a large extent, however, because some indicted defendants would doubtless prefer to proceed to trial rather than undergo the delay of a subsequent preliminary hearing, and in other cases such hearings would likely yield a greater number of dismissals or guilty pleas as the parties would have a superior opportunity to appraise the relative strengths and weaknesses of their positions. Given the infrequent use of indictment procedures, it would not appear that the state interests in efficiency and convenience are substantially served.
More persuasive, however, is the insignificance of such interests relative to the important rights denied to indicted defendants. The Supreme Court has recently demonstrated the validity of Justice White’s perception that “as the Court’s assessment of the weight and value of the individual interest escalates, the less likely it is that mere administrative convenience and avoidance of hearings or investigations will be sufficient to justify what otherwise would appear to be irrational discriminations.” (Vlandis v. Kline (1973) supra, 412 U.S. 441, 459 [37 L.Ed.2d 63, 75] (conc. opn.).) Applying its intermediate level of review in Craig v. Boren (1976) supra, 429 U.S. 190, the court pointedly observed that Reed v. Reed (1971) supra, 404 U.S. 71, and decisions following it “have rejected administrative ease and convenience as sufficiently important objectives to justify gender-based classifications.” (429 U.S. at p. 198 [50 L.Ed.2d at p. 407]; see also Hampton v. Mow Sun Wong (1976) 426 U.S. 88, 115-116 [48 L.Ed.2d 495, 515-516, 96 S.Ct. 1895].) Similarly, such objectives are not sufficiently weighty to justify denying indicted defendants the right to have an evidentiary hearing before a judicial officer, to personally appear, to confront and cross-examine witnesses, to present evidence, and to be represented by counsel—particularly when the asserted convenience and efficiency are so minimally promoted.
I therefore agree that the denial to defendants herein of the adversarial preliminary hearing afforded defendants charged by information consti[607]tutes an invidious discrimination in contravention of article I, section 7. of the California Constitution, but I would apply the equal protection analysis developed in this concurring opinion to reach such conclusion.
Newman, J., concurred.
These constitute the two methods of initiating a felony prosecution in California. (Cal. Const., art. I, § 14.)
As one observer put it, a grand jury room with no judge present to protect unrepresented witnesses or prospective defendants is “a threatening physical environment;” it “possesses coercive characteristics that are analogous to a police interrogation room, which the court found to be inherently coercive in Miranda." (Note, Federal Grand Juries: The Plight of the Target Witness (1977) 11 U.S.F. L.Rev. 672, 685.)
Simultaneously, and inconsistently, the Attorney General argues that the grand jury indicting function is not a critical stage in the criminal process, that it is merely investigative. We emphasize that we are not here concerned with the true investigative role of the grand jury. In that capacity—citizens probing into and exposing governmental ineptitude and inefficient practices—the grand jury serves a valuable and productive purpose.
Although only four members of the court joined the opinion of the court on this issue, a fifth, Justice Black, agreed in his concurring opinion with the conclusion that a constitutional right to assistance of counsel obtained in the Alabama preliminary hearing.
One advocate has described as follows the value of cross-examination: it “permits disclosure of contradictions, inconsistencies, unsupported conclusions, bizarre descriptions of events, favoritism in testimony, motive, bias, slanting of facts, absence of proof, and in some cases even perjury.” (Werchick, Cal. Preparation and Trial (2d ed. 1974) § 14.5, p. 727.)
“A prosecutor may proceed by indictment for valid reasons: the prospective defendant cannot be found; witnesses may fear testifying in court; the case may have potential for prejudicial pretrial publicity; publicity may jeopardize a continuing investigation; a preliminary examination may involve prolonged delay because of the number of defendants or the complexity of the case.”
While we held to the contrary in People v. Sirhan (1972) 7 Cal.3d 710, 746-747 [102 Cal.Rptr. 385, 497 P.2d 1121], the issue was treated cursorily and was neither argued nor decided in relation to the California Constitution. As we have previously stated, “ ‘[I]n criminal actions, where life or liberty is at stake, courts should not adhere to precedents unjust to the accused. It is never too late to mend.’ ” (People v. Aranda (1965) 63 Cal.2d 518, 530 [47 Cal.Rptr. 353, 407 P.2d 265], quoting from United States v. Delli Paoli (2d Cir. 1956) 229 F.2d 319, 323 (dis. opn. of Frank, J.).) To the extent it is contrary to the views herein expressed, Sirhan is overruled.
In People v. Duncan (1972) 388 Mich. 489 [201 N.W.2d 629], the Supreme Court of Michigan held that defendants are entitled to a postindictment preliminary hearing. As a result of Duncan the general procedure we recommend here was codified in Michigan Court Rule 788 and is now accepted practice in that state.
Current section 14 represents a streamlined version, not intended to introduce substantive changes, of former article I, section 8, which provided: “Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed bv law." (Italics added.) Plainly this predecessor section also left to the Legislature and the courts the task of formulating indictment procedures that do not diminish other constitutional guarantees.
The Attorney General argues that this court is without power to rule invalid indictment procedures, no matter how drastically or unreasonably such procedures may undermine other constitutional provisions. This position is remarkable in light of long-standing American principles recognizing the role of courts in a constitutional system. The principal support cited by the Attorney General is legislative history which is said to leave the development of indictment procedures to legislative control. Of course the Legislature in the first instance prescribes procedures for grand jury indictments; it is no revelation that history so provides. But the cited legislative history does not purport to strip California courts of the power to invalidate a scheme that interferes unreasonably—and unnecessarily—with other fundamental constitutional guarantees.
Several lower federal courts have also quoted and applied this test in cases involving gender-based discrimination. (E.E.O.C. v. American Tel. & Tel. Co. (3d Cir. 1977) 556 F.2d 167, 179; Blake v. City of Los Angeles (C.D.Cal. 1977) 435 F.Supp. 55, 60; Hoover v. Meiklejohn (D.Colo. 1977) supra. 430 F.Supp. 164, 168; In re Paris Air Crash of March 3, 1974 (C.D.Cal. 1977) 427 F.Supp. 701, 708.)
Many lower courts have also recognized explicitly that equal protection analysis now entails three levels of review. For instance, in Hoover v. Meiklejohn (D.Colo. 1977) supra, 430 F.Supp. 164, 168, the court understood the standard enunciated in Craig to constitute “a ‘middle-tier approach,’ requiring something between ‘legitimate’ and ‘compelling,’ viz., ‘important,’ and something more than a ‘rational’ relationship but less perhaps than ‘strict scrutiny,’ viz., ‘substantially’ related.’’ (See Meloon v. Helgemoe (D.N.H. 1977) 436 F.Supp. 528, 530-532; Meloon v. Helgemoe (1st Cir. 1977) 564 F.2d 602, 604-605; Vance v. United States (N.D.Tex. 1977) supra, 434 F.Supp. 826, 833-834, affd. per curiam (5th Cir. 1977) 565 F.2d 1214; Lewis v. Cohen (E.D.Pa. 1976) 417 F.Supp. 1047, 1053: Gilpin v. Kansas State High School Activities Assn., Inc. (D.Kan. 1974) supra, 377 F.Supp. 1233, 1238-1239; see also Note, The Supreme Court, 1976 Term (1977) 91 Harv.L.Rev. 70, 177-182; Note, Gender-Based Legislative Classifications (1978) 57 Neb.L.Rev. 555, 559.) In Francis v. Cleland (D.S.D. 1977) supra, 433 F.Supp. 605, 618-620, the court noted that the new “medium level of review” has been applied in cases involving classifications which, though not suspect, came close to being suspect; the court concluded that such a middle-tier approach is likewise appropriate when a case involves a right not fundamental but which is close to being fundamental.