# Motion to Dismiss or Affirm — Hosack v. Smiley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1098%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1968 - **Citation:** 390 U.S. 744 ## Text PHEME COURT.U.& = = | ~ Poe ke, ee wee te | - ss . 4 . Section 14: Control of university —The board of re- _ gents shall have the general supervision of the univer- sity, and the exclusive control” and direction of all - funds of, and appropriations to, the university. These powers have been more ‘specifically. defined in the . following cases: ° In re Mackey’s Estate, 46 Colo. 79, 102 P. « 1075 (1909); People ex rel: Jerome v. Board of Regents, 24 ~ ~ Colo. 175, 49 P. 286: (1897); Burnside v. Board of Regents, T= 100 Colo. 33, 64 P.2d 1271 (1937); Sigma Ché Fraternity v. : Board of Regents, 288 F.Supp. 515 (D.C. Colo.. 1966); 4 - Buttny, et al. v. Smiley, et al., Civil No. C008 (D. C. Colo. ” Feb. 14, 1968). If the Board of Regents, as an employer, were ridnired _ to treat all its employees exactly as employees of all other - ~ state agericies are treated, its constitutionally vested powers would become meaningless. The Colorado Constitution | - created a potential “class” of employees of the University 4 ‘of Colorado in creating the University and its governing ‘e body. The Regents have my directed that that class be administered = oath. It is clearly settled that any classification adopted by | _- a State, in the exercise of its legitimate ends, which classi- fication has a reasonable basis and is arbitrary will be © sustained against an ‘attack based upon the equal protection -’ clause of: the Fourteenth Amendment. Crescent Cotton - Oil Co: v. Mississippi, 257 U.S. 129, 137 (1921); Watson v. _ Maryland, 218 US. 173' (1910); Bachtel v. Wilson, 204 U.S. © 36, 41 (1907); Smith v. Cahoon, 283 U.S. 553, 566-67 (1937); Landwehr v. Regents of University of Colorado, 156 Calo. 1, 396 P.2d 451 (1964). ree Since the classification involved herein was not made _ by the Regents but by the Colorado Constitution, appel- 5 lants’ attack on the basis of the .Fourteenth Amendment guarantee of equal protection amounts to a collateral at- tack on the Constitution of the’ State of Colorado. This” at- tack cannot be sustained unless the Court is of the opinion that it is an-arbitrary ‘and unreasonable classification for | a state constitution to, create a — governing body for the state epee - 4 The factual basis of. question 5 is ———s a support further argument. The record below indicates that all -the appellants were hired by the University of Colorado prior to the date the Regents adopted the presently contested’ oath on Feb- ruary 17,-1967. Inasmuch as the prior oath was not: in- validated until April 24, 1967, Gallagher v. Smiley, 270 F.Supp. 86 (D.C. Cola. 1987), appellants were 2) bined while that oath was in effect and either subscribed to it or had knowledge that it was a condition of employment. Since the new oath ‘isa verbatim duplication of the first ’ sentence of the old oath, the former requires nothing of | appellants which was not required as a condition of their original employment, Therefore, there can logically be no — of their contractual rights. _ ot CONCLUSION In the five. questions presented. in appellants’ Jurisdic- tional Statement there are no issues raised which require — : further argument in view of prior decisions of the Court, ae * 6 ; i hee ‘ s lack. of standing and insufficient factual biti’ .Therefore, plead $. . Be : a ¢. ny es is Re Facial ee "Attorney. . General © , _, Appellees’ Motion to Affirm or Dismiss a be granted.. ts Respectfilly submitted, oil a ai ae : ‘Dost W. Dunsar ho aa ee .. *» State of Colorado te TN a Cn JOHN, HontLowsy, Or ities ee ne ae _ Assistant’ Attorney Geciepal® See Ti ae - Retident Counsel. for .the. er eee — Hall, Box 13. - vr Be Rats = -. University of Colorado Py ee ae "Boulder, Colorado 80302 ° s ’ . - ‘\ - i. oe \ : ’ 7 a rk | “ - - ° 7% i ys f 7 ’ ‘ ; ad Ye : —— ‘oe * ail ~~ J = iversity of-Colorado +, - _¢ « --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1098%3A2. Public record. Not legal advice.