Appendix — Craig v. Boren

Supreme Court brief1976

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Supreme Ceurt, U. & r

FILED «,

FEB 25 1916

APPENDIX MICHAEL RODAK, JR., OLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-628

CURTIS CRAIG,

and

CAROLYN WHITENER

d/b/a ‘‘The Honk and Holler,’’

Appellants,

VS.

Hon. DAVID BOREN, Governor,

State of Oklahoma,

et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

Jurisdictional Statement Filed October 28, 1975

Probable Jurisdiction Noted January 12, 1976

WAYNE R. SCOTT CO., 507 S. QUAKER, TULSA, OK 74120 - (918) 587-2052

APPENDIX

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-628

CURTIS CRAIG,

and

CAROLYN WHITENER

d/b/a ‘*The Honk and Holler,”’

Appellants,

vs.

Hon. DAVID BOREN, Governor,

State of Oklahoma,

et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

Jurisdictional Statement Filed October 28, 1975

Probable Jurisdiction Noted January 12, 1976

WAYNE R. SCOTT CO., 507 S. QUAKER, TULSA, OK 74120 - (918) 587-2052

——

~—-—

STATEMENT OF COUNSEL

This Single Appendix has been prepared through

the joint efforts of counsel for both sides to this Appeal.

In view of Supreme Court Rule 36(2), that the entire

Record is always available for inspection, and that a

supplemental appendix may be submitted as a safeguard

against surprise and to further the interests of justice,

this Single Appendix does not, therefore, purport to be a

reproduction of the entire Record herein.

By the same token, the inclusion of some particular

item or items herein means no more than that one side

or the other, not necessarily both, desires to call the

Court's attention thereto. Such item’s or items’ inclusion

herein does not, therefore, constitute a stipulation that

the formal Record herein actually includes such item or

items, nor does such inclusion herein constitute a waiver

of any objection that either side or the other might

have thereto.

The Attorneys

Item

"FP FP

Sen &

10.

ll.

12.

13.

TABLE OF CONTENTS

Description Page

ee Wr Ce gc wc vsccveunssever i

Docket Entries (Extract) ..................005. l

EE CD 666 0K sce epnscncedasconpes' 6

Defendants’ Motion to Dismiss (Extract) ........ 18

Order of Dismissal (Reference) ................ 21

Brief of Appellees, 10th Cir., No. 73-1267

i ee es aed ens hus cé b's 22

Court of Appeals’ Reversal (Reference) ......... 24

Order of December 13, 1973 (Entire) ........... 25

i ga RT ea a ek A EO» 27

sk a a a clue ee 33

Motion to Add Additional Party Plaintiff

Ea Serer eee rrr rE rane 37

Order Allowing Adding of Additional

ST ee rrr eee 39

Letter-Order of May 13, 1974 ................. 40

Transcript of Trial (Entire) ................... 41

Donald M. Wallock, Jr.

ee no enw ees 55

ee oe alee ee 55

Redirect Examination .................... 55

Phillip G. Ballara

Ue TI 4... ccc cc ccccccceces 56

ee ee cucccucesueeseuet 60

Redirect Examination .................... 63

Dr. Joseph Ruffin, M.D.

Se CE oj. hee cc ere stedacenes 73

Se ee od. ccc re ccnmcsepsecees 86

Redirect Examination .................-.. 97

Redirect Examination ................... 106

Item

Description Page

Dr. Ben Jones

ae oe a7 sw 112

oe iidaceae wis 122

Plaintiffs’ Attempted Exhibit 1A (Extract)...... 137

Plaintiffs’ Attempted Exhibit 1B (Extract)...... 148

Plaintiffs’ Exhibit 2 (Entire) .................. 151

. Plaintiffs’ Exhibits 3 and 4, and Trial

Brief Appendix (Extract) .................. 178

Defendants’ Exhibits 1-5 (Reference) .......... iS]

Defendants’ Exhibit 6 (Extract) ............... 18th

Defendants’ Exhibit 7 (Entire) ............... 1854

. Defendants Exhibit 8 (Extract) ............... 208

Decision (Memorandum Opinion)

oe ok salu weds 227

. Judgment (Reference) ...:......0.....c0 cece. 227

ee acenis 228

— ii—

ITEM 1 — DOCKET ENTRIES — W.D. OKLA.

12-20-72

1-10-73

2-1-73

2-14-73

3-15-73

11-16-73

11-16-73

11-16-73

12-6-73

CIV-72-867 (EXTRACT)

Filed Complaint

Filed dfts’s Mtn to Dism for Failure to State

Claim w/attached Brf — w/s

Filed plfs’ Response to dfts’ Rule 12 (B)(6)

Mtn to Dism — w/s

Filed and entered Order of Dismissal — THAT

compl. is dism‘d as to all parties (findings:

Ct w/o jurisd. as comp!. does not state claim

upon which relief can be granted & state

law is valid exercise of State’s power)

(Chandler) (COB #98) (Clerk) (copies

mailed — ro)

(Posted to docket sheet 3-22-73) Plfs’ Notice(s)

of Appeal and/or Application for Writ of

Mandamus from jdgmt entered Feb. 13,

1973, filed Feb. 14, 1973 (record due in CC

of A 4-24-73)

Rec'd Opinion & Mandate

Filed copy of Opinion .

Filed cert copy of Mandate (order granting

mtn to dism is vacated & case remanded for

further proceedings consistent w/Opinion;

alt. relief req'd by appellants is denied

wi/observation that our disposition of appeal

should not be construed as any indication of

our thoughts re merits of case or defenses

raised thereto) (Clark, Lewis, & Hill)

Filed Order that Court (Three Judge) be con-

stituted as follows: Hon. Wm. J. Holloway,

Jr., U.S. Circuit Judge; Hon. Frederick A.

= -

Daugherty, U.S. Dist. Judge; and Hon. Lu-

ther B. Eubanks, U.S. Dist. Judge (dated

Dec. 3, 1973) (David T. Lewis, Chief Judge,

U.S. Ct. of Appeals = 10th Circuit)

12-6-73 Enter Order, case set for pretrial on Mon.,

12-10-73

12-13-73

12-14-73

12-17-73

12-26-73

1-2-74

1-11-74

2-5-74

5-3-74

Dec. 17, 1973, 3:30 p.m. (Daugherty)

Enter Order Pif's Motion for Thre4 Judge

Panel is satisfied by such panel being con-

vened (Daugherty) cns! ntf ve

Filed Order overruling defts’ Motion to Dis-

miss; defts to file Ans. on or before 12-14-73 _

(Holloway, Daugherty & Eubanks) copies to

ensl and judges — ve

Filed Answer of defts’ w/s copies to judges —

ve

Ent Pretrial hrg: case pretried; to be tried be-

fore 3 judge ct.; deft. to file substitution of

parties; plf's mtn to add addi. plf granted;

plf's request for atty fee abandoned; plf to

file br w/in 5 days re burden of proof; deft

to answer 10 days thereafter (Daugherty) ve

Filed Plfs Memo. on Burden of Estab. Con-

stit. & tests for Constitutionality w/s/ copies

to judges — ve

Filed dfts’ Memo. on Burden of Proof & Con-

stitutionality of State Statutes — w/s

Filed plfs’ Reply Memo. on Burdens of Proof

& Tests for Constitutionality — w/s

Filed First Pretrial Order (Holloway, Daugher-

ty, & Eubanks)

Enter Order case set for trial before the Hon.

Wm. J. Holloway, Jr., U.S. Circuit Judge,

a me

5-7-74

5-8-74

9-14-74

5-16-74

9-17-74

3-20-74

Hon. Fred Daugherty, Chief Judge U.S.

Dist. Court and Hon. Luther B. Eubanks,

U.S. Dist. Judge, on Monday 20, 1974 at

9:30 a.m. in Courtroom No. 1. (Daugherty)

ensl., A.G. and Gov. David Hall ntf by cert.

mail) ve

Filed PIf's Motion to Add Addl Party PIf w/s

Filed Order allowing Curtis Lee Craig to be

added as addl party plf (Judges Holloway,

Daugherty & Eubanks) copies to cnsl and

Judges ve

Filed copy of Itr from Court to Counsel ad-

vising that burden of proof rests on the dfts

(Daugherty) copy to Judges Holloway &

Euban

Filed dfts Motion for Substitution of Parties

w/s/

Filed Order Substituting Parties Defendant:

D. M. Berry, Chairman, L. L. Leininger,

Vice Chairman, and J. L. Merrill, Secretary,

all officials of the Okla. Tax Comm., are

substituted as parties dft (Holloway, Daugh-

erty, & Eubanks) (COB # 103) (Clerk)

(copies to parties & to Judges — ve)

Ent. Non Jury Trial before 3-Judge Panel:

Cnsl announce ready; opening stmts by cns];

burden rests on dfts. Dfts present case in

chief w/test of wtnses and Ex. 1-8 adm. Dfts

rest. Plfs move for judgm. mtn denied; Plfs’

present case in chief w/test of witnesses and

Ex. 2, 3 & 4 being adm. A® »vidence in.

Defts to file brief of authorities w/in 20 days;

plfs reply br 15 days thereafter; may have

— =

6-17-74

7-23-74

8-20-74

9-27-74

9-27-74

10-3-74

10-4-74

5-17-75

5-17-75

9-27-75

further arguments, if so, cnsl will be ad-

vised (Holloway, Daugherty & Eubanks) ve

Filed Dfts Brief as ordered at trial of 5-20-74

(copies to Judges — afj

Filed Plaintiffs Brief w/s Copies to Judges by

wwm

Enter Order case set for oral arguments on

Fri., Sept. 27, 1974, at 10:00 am. (Daugh-

erty) cnsl ntf ve also Judges

Enter Hng on Oral Arguments: Arguments

presented; dfts to respond to plf's Supple-

mental Brief w/in 10 days; case ill be consid

subm at that time (Holloway, Daugherty &

Eubanks) ve

Filed Plaintiff's Supplement to Brief w/s (cop-

ies to judges — ve)

Filed letter to Clerk from Atty for Plfs re

status of Bassett v. Bassett (Okla. App.,

1974) 521 P.2d 434. Copies to judges — ve

Filed Defts’ Reply to the Suppl Brief of Plfs

wis/ copies to Judges — AJF

Filed and entered Judgment — THAT judg is

ent'd adjudging that Okla. statutes in ques-

tion, 37 OSA 241 and 245 are valid; that all

relief sought by complaint is denied & ac-

tion is dism’d (Holloway, Daugherty, &

Eubanks) (COB # 108) (Clerk) (copies to +

parties ve)

Filed Memorandum Opinion (Holloway,

Daugherty, & Eubanks)

Filed Plfs Motion for New Trial w/Memoran-

dum — Motion for Extention of Time to File

as an

1-20-76

Brief in Support w/s/ (copies to judges wwm)

Filed Plfs’ Memorandum in Support of Mtn for

New Trial w/s/ copy to judges ve

Filed Order Overruling Mtn for New Trial by

plfs (Holloway, Daugherty, Eubanks) zmc

ws

Filed dfts’ Response to Plfs| Mtn for New

Trial — ws

Filed plfs’ Notice of Appeal to U.S. Sup. Ct.

from jdgmt entered May 17, 1975, and order

overrlng mtn for new trial July 14, 1975 —

w/s (record due in U.S. Sup. Ct. Oct. 10,

1975) Copies to judges — jj

Filed cert copy of Supreme Ct’s Notice of

probable jurisdiction of Appeal (Michael Ro-

dak, Jr., Clerk) (Sup. Ct # 75-625)

ITEM 2 — COMPLAINT

(ENTIRE)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MARK WALKER, )

and

CAROLYN WHITENER

d/b/a ‘*The Honk and Holler,”’

Plaintiffs,

vs. . No. CIV-72-867

Hon. DAVID HALL, ro =a

Governor, te Oe Pa ee

State of Oklahoma, ste!

fet al.], poco

Defendants. otis tS OE ae

COMPLAINT

[1] Jurisdictional Allegations

1. This is a Federal civil-rights lawsuit brought under

42 U.S.C. 1983 for a declaratory judgment, 25 U.S.C.

2201, to adjudicate as violative of the Equal Protection

Clause of the Fourteenth Amendment to the Constitution

so much of the statutory scheme established by the

Laws of Oklahoma, to wit, 37 O.S. 241-245, whereby

male members — and male members only — of the class

of all persons in the 18 to 21 year old age category

are forbidden to be sold and to purchase 3.2% beer; for

injunctive relief enjoining the enforcement of the said

statutory discrimination imposed only upon male mem-

bers of the class of all persons 18-21 years of age; for

a

attorney's fees and costs of this action; and for such

further equitable and legal relief as to the Court might

appear just and proper.

2. The Plaintiff Mark Walker is a natural person, a

citizen of the United States and of the State of Oklahoma,

and a resident of Stillwater, Payne County, Oklahoma,

within the Western District of Oklahoma. The Plaintiff

Walker is a member of the male sex; and was born on

November 20, 1952, thereby making him presently twenty

years of age, and at all times material herein a member

of the class comprised of all persons 18-21 years of age.

As appears more fully under the “‘Substantive Cause of

Action’ hereto, the Plaintiff Walker desires to purchase

3.2% beer for consumption in private.

~

3. The Plaintiff Carolyn Whitener is a natural person,

a citizen of the United States and of the State of Okla-

homa, and a resident of Stillwater, Oklahoma, within

the Western District of Oklahoma. The Plaintiff Whitener

does business as the “Honk and Holler’’ at 602 West

Sixth Street, Stillwater, Oklahoma, within the Western

District of Oklahoma. As appears more fully under the

“Substantive Cause of Action” hereto, the Plaintiff

Whitener is a licensed vendor of 3.24 beer, [2] and

desires to sell 3.2% beer to males as well as other persons

from amongst the class of persons 18-21 years of age

for consumption off her premises.

4. The Plaintiff Walker, as a desiring and prospective

15-21 year old male purchaser of 3.2% beer, has standing

to assert the rights of the Plaintiff Whitener, as a desiring

and prospective vendor of 3.2% beer to 18-21 year old

males; and vice versa.

5. The Defendant David Hall is a natural person, a

citizen of the United States and of the State of Okla-

homa, and a resident of Oklahoma City, Oklahoma,

within the Western District of Oklahoma. The Defendant

Hall is further the Governor of the State of Oklahoma.

6. The Defendant Larry Derryberry is a natural person,

a citizen of the United States and of the State of Okla-

homa, and a resident of Oklahoma City, Oklahoma,

within the Western District of Oklahoma. The Defendant

Derryberry is further the Attorney General of the State

of Oklahoma. -

7. The Defendants Clarence L. DeWees, Lawton L.

Leininger, and M. C. Connors are natural persons, citi-

zens of the United States and of the State of Oklahoma,

and residents of Oklahoma City, Oklahoma, within the

Western District of Oklahoma. The Defendants DeWees,

Leininger, and Connors are further the three members

of the [three-man] Oklahoma Tax Commission, and in

more particular are, respectively, the Chairman, the

Vice-Chairman, and the Secretary thereof.

8. The Defendant Robert L. Hert is a natural person,

a citizen of the United States and of the State of Okla-

homa, and a resident of Stillwater, Oklahoma, within

the Western District of Oklahoma. The Defendant Hert

[3] is further the Presiding District Judge of the Ninth

Judicial District Court of the State of Oklahoma, which

Ninth Judicial District encompasses Payne and Logan

Counties, Oklahoma, within the Western District of

Oklahoma.

9. The Defendant Charles H. Headrick is a natural

person, a citizen of the United States and of the State

of Oklahoma, and a resident of Stillwater, Oklahoma,

within the Western District of Oklahoma. The Defendant

—

Headrick is further the District Attorney for the Ninth

Judicial District of the State of Oklahoma, which Ninth

Judicial District encompasses Payne and Logan Counties,

Oklahoma, within the Western District of Oklahoma.

10. The Defendant Rose Jarvis is a natural person, a

citizen of the United States and of the State of Okla-

homa, and a resident of Stillwater, Oklahoma, within

the Western District of Oklahoma. The Defendant Jarvis

is further the District Court Clerk of Payne County,

State of Oklahoma, within the Western District of Okla-

homa.

11. The Defendant Frank Phillips is a natural person,

a citizen of the United States and of the State of Okla-

homa, and a resident of Payne County, Oklahoma, within

the Western District of Oklahoma. The Defendant Phillips

is further the Sheriff of Payne County, Oklahoma, within

the Western District of Oklahoma.

12. The Defendant Howard W. Hoyt is a_ natural

person, a citizen of the United States and of the State

of Oklahoma, and a resident of Stillwater, Oklahoma,

within the Western District of Oklahoma. The Defendant

Hoyt is further the Chief of Police of the City of Still-

water, Oklahoma, within the Western District of Okla-

homa.

[4]

13. As appears more fully under the “Substantive

Cause of Action” hereto, the monetary amount in contro-

versy herein is in excess of Ten “Thousand Dollars,

exclusive of interest and costs; and the territorial situs

of the wrongs complained of lies within the Western

District of Oklahoma.

14. Jurisdiction over the subject-matter of this lawsuit

—

is conferred upon the U.S. District Court for the Western

District of Oklahoma by 28 U.S.C. 1331, 1343(3), and

1343(4).

15. Venue over the subject-matter of this lawsuit is

conferred upon the U.S. District Court for the Western

District of Oklahoma by 28 U.S.C. 1391(b).

16. Venue over the Parties to this lawsuit is conferred

upon the U.S. District Court for the Western District of

Oklahoma by 28 U.S.C. 1391(b), 1392(a), and 1393(b).

17. A requirement to convene a three-judge - district

court to grant the injunctive relief prayed for by this

lawsuit is imposed upon this Court herein by 28 U.S.C.

2281 et seq:

(a) This action seeks, in substantial part, an injunc-

tion permanently enjoining various State officers,

Defendants herein, from enforcing the unconstitu-

tional discrimination based on sex contained = in

37 O.S. 241-245.

(b) The claim of the [un]constitutionality of the age-

sex discrimination at bar herein constitutes a “‘sub-

stantial [and meritorious] Federal question’ within

the Tenth U.S. Circuit. Lamb v. Brown (10th Cir.,

3/16/72) 456 F.2d 18. See also Reed v. Reed (1971)

404 U.S. 71, 30 L.Ed.2d 225, 92 S. Ct. 251.

[5

ws (c) No State criminal, quasi-criminal, or administra-

tive prosecutions or proceedings are presently pend-

ing or contemplated against any of the Plaintiffs

to this lawsuit. See Syl. 2a to Lake Carriers Assn.

v. MacMullan (5/30/72) U.S. —--_-_., 32. L.

Ed. 2d 257, 92 S. Ct. 1749.

—

Substantive Cause of Action

18. All Jurisdictional Allegations are hereby incorpo-

rated herein by reference.

19. The Laws of Oklahoma, in relevant part, to wit,

37 O.S. 241 and 245, provide as follows:

“241. Sale barter or gift to minor unlawful. — It

Shall be unlawful for any person who holds a

license to sell and dispense beer and/or any agent,

servant, or employee of said license holder to sell,

barter or give to any minor any beverage containing

more than one-half of one per cent of alcohol

measured by volume and not more than three and

two tenths (3.2) per cent of alcohol measured by

weight. Provided, a parent as regards his own child

or children, is excepted from the provisions of this

Act.”

“245. “Minor” defined. — A “minor,” for the

purposes of Sections 241 and 243 of Title 37 of the

Oklahoma Statutes, is defined as a female under the

age of eighteen (18) years, and a male under the

age of twenty-one (21) years.”

20. Elsewhere within Chapter 2 to Title 37 of the

Statutes of Oklahoma, various coercive and intimidatory

administrative and criminal sanctions (e.g., revocation or

cancellation of license, fine, and imprisonment) are speci-

fied for violations of the above-quoted statutory sections.

21. The purpose, intent, and effect of 37 OS. 245,

quoted above, and when taken in conjunction with 37

O.S. 241 and the other relevant portions of Chapter 2

to Title 37 of the Statutes of Oklahoma, is to take

[6] the broad class comprised of all persons 18 to 21

years of age, and then to discriminate amongst. the

~—:

persons included within this broad 18-21 year old class

of persons solely upon the basis of their biological sex(es),

by denying to members of the unfavored (i.e., male)

sex within this age group the equal right to purchase

3.2% beer for private consumption as is freely recognized

and allowed to and enjoyed by other persons of the

favored (i.e., female) category within the same age

group.

22. The State statutory discrimination herein, insofar as

it purports to deny to males within the broad 18-21

year old age group the equal right to purchase 3.2¢ beer

for private consumption, is invidious, arbitrary, irrational

and capricious, and violates the civil rights of the said

males in the broad 18-21 year old age group to the

Equal Protection of the Laws as guaranteed by the

Fourteenth Amendment to the Constitution, in that the

said discrimination is illegally and wrongfully predicated

solely upon the legislatively irrelevant, constitutionally

impermissible and inherently suspect classification of said

aggrieved persons: biological sex and reproductive anat-

omy, which biological and anatomical bases for legal

classification regarding the purchase and consumption of

3.2% beer are totally lacking in all reasonable relation-

ship to any legitimately permissible public policy or

legislative end.

23. Because of the foregoing discriminatory State statu-

tory scheme, the Plaintiff Walker, who is a member of

the discriminated-against male sub-group of the main

class of all persons 18-21 years of age, and is desirous

and financially able to purchase 3.2% beer for consump-

tion in private, nevertheless finds himself legally and

effectively thwarted in his desire to do so. In particular,

the Plaintiff Walker has on numerous occasions heretofore

contacted inter alia the Plaintiff Whitener, a licensed

retail vendor or 3.2% beer doing business as the “Honk

and Holler’ [7] in Stillwater, Oklahoma, with a

view towards making purchases of 3.2% beer from the

said Plaintiff Whitener, who is personally desirous of

selling such 3.2% beer to the Plaintiff Walker, but who

nevertheless refuses to do so, to the Plaintiff Walker's

extreme injury.

24. The reasons why the Plaintiff Whitener, although

personally desirous to sell 3.2% beer to the Plaintiff

Walker tor consumption off the premises of the “Honk

and Holler,” nevertheless fails and refuses to do so

(and likewise fears and declines to make any such sales

to other male members of the class of all persons 18-21

years of age) are as follows:

a) The coercive and intimidatory effect against such

sales engendered by the assailed discriminatory

State stautory scheme outlined above, prohibiting

the sale of 3.2% beer to male members of the class

of all persons 18-21 years of age, and the admini-

strative and criminal sanctions for violations thereof:

and

b) The past, present, and threatened enforcement of

the said discriminatory State statutory scheme as-

sailed herein (and of the related administrative and

criminal sanctions in support thereof) by the Defend-

ants herein.

25. Regarding the past, present, and threatened enforce-

ment of the assailed statutory discrimination by the

Defendants herein, both Plaintiffs would in more particu-

lar allege as follows:

a) The Defendant David Hall, as Governor and chief

[8]

executive of the State of Oklahoma, executes all

Oklahoma laws, including those herein assailed

throughout the State of Oklahoma.

,

b) The Defendant Larry Derryberry, as Attorney

General and chief law enforcement officer of the

State of Oklahoma, enforces all Oklahoma laws,

including those assailed herein, throughout the State

of Oklahoma.

¢) The Defendant Frank Phillips, as Sheriff of Payne

County, Oklahoma, enforces all Oklahoma laws.

including those assailed herein, throughout Payne

County, Oklahoma.

d) The Defendant Howard Hoyt, as Chief of Police

of the City of Stillwater, Oklahoma, enforces all

Oklahoma laws, including those assailed herein,

throughout the said City of Stillwater, Oklahoma.

e) The Defendant Charles Headrick, as District

Attorney for the State of Oklahoma within Payne

County, Oklahoma, enforces all Oklahoma laws, in-

cluding those assailed herein, throughout the said

Payne County, Oklahoma; and further, the said

Defendant Headrick, as District Attorney within

Payne County, Oklaho.aa, also has specific duties

under Oklahoma law, as contained more fully in

Chapter 2 to Title 37 of the Statutes of Oklahoma,

to enforce and administer the discriminatory State

statutory scheme assailed herein.

f) The Defendants Clarence DeWees, Lawton Lein-

inger, and M. C. Connors, as the members of the

Oklahoma Tax Commission, have specific duties

under Oklahoma law, as contained more fully in

Chapter 2 to Title 37 of the Statutes of Oklahoma,

="

to enforce and administer the discriminatory State

statutory scheme assailed herein.

[9]

g) The Defendant Robert Hert, as Presiding Dis-

trict Judge within Payne County, Oklahoma, has

specific quasi-executive or administrative duties

under Oklahoma law, as contained more fully in

Chapter 2 to Title 37 of the Statutes of Oklahoma,

to enforce and administer the discriminatory State

statutory scheme assailed herein.

h) The Defendant Rose Jarvis, as District Court

Clerk within Payne County Oklahoma, has specific

quasi-executive or administrative duties under Okla-

homa law, as contained more fully in Chapter 2

to Title 37 of the Statutes of Oklahoma, to enforce

and administer the discriminatory State statutory

scheme assailed herein.

26. The injury accruing to the Plaintiff Walker herein

solely because of the legally irrelevant and constitu-

tionally impermissible criteria of his biological sex and

his reproductive anatomy is both physical and mental,

to wit: the cruel denial of the physical benefits deriv-

able from 3.2% beer; and the even crueler mental and

emotional humiliation engendered by the degrading and

inferior status publicly accorded him simply on the

basis of irrelevant biological factors, not unlike those of

race, over which he had and has no control. The

monetary damage caused by the physical and mental

injury herein, through difficult of precise estimation,

exceeds Ten Thousand Dollars, exclusive of interest and

costs; and because of the imprecise extent and recurring

nature of the physical and mental injury herein, remedies

at law are inadequate to protect the Plaintiff Walker

= =

in his Federally-guaranteed Equal Protection civil right

to purchase 3.24 beer for private consumption free from

discrimination based on sex, or upon any other illegal

criterion.

{10}

27 The injury accruing to the Plaintiff Whitener from

the sexually-discriminatory statute at bar, in addition to

the injury to the Plaintiff Walker outlined above and

suffered derivatively by the Plaintiff Whitener, consists

in the diminishment of her sales to persons in the 18-21

year old category occasioned by the unconstitutional

exclusion from said category of the male members

thereof as legally permissible vendees and customers —

which illegal exclusion of males as permissible vendees

and customers within the class of all persons 18-21 years

of age has already damaged the Plaintiff Whitener over

Ten Thousand Dollars, exclusive of interest and costs, in

lost sales of 3.2% beer, and which sexually discriminatory

exclusion of males as permissible vendees and customers

from the class comprised of all persons 18-21 years of

age will, unless enjoined, result in future damages and

losses by the diminishment of sales of 3.2% beer, in excess

of Ten Thousand Dollars, exclusive of interest and costs.

28. Remedies at law are inadequate to protect the

Plaintiff Whitener against the threatened future-occuring

violations of her individual and derivative Federally-

guaranteed Equal Protection civil rights to sell 3.2%

beer to all members of a specified age group irrespective

of the unconstitutional criterion of sex; this for the reason

that resort to legal remedies as each such threatened,

future, and unless enjoined inevitable violation should

occur would involve piecemeal, periodic, and repetitive

applications to court — thereby resulting in the very

=

multiplicity of litigation classically enjoinable by a court

of equity.

WHEREFORE, premises considered, Plaintiffs pray

for:

A. A judicial declaration and determination that 37 O.S.

241 and 245, and all statutory sanctions deriving there-

from, be held and adjudicated [11] unconstitutional

and void insofar as they purport to prohibit the pur-

chase, possession, and private consumption of 3.2% beer

by or the sale thereof to male persons included within

the class of all persons 18 to 21 years of age;

B. An injunction enjoining the Defendants, and each of

them, jointly and severally, and their subordinates and

successors in office, from enforcing and/or attempting to

enforce those portions of 37 O.S. 241 and 245, and the

ancillary statutory sanctions thereto, which purport to

prohibit the purchase, possession, and private consump-

tion of 3.2% beer by or the sale thereof to male persons

included within the class of all persons 18 to 21 years

of age;

C. All costs of this action, to include a_ reasonable

attorney 's fee; and

D. Such further legal and equitable relief as to the

Court may seem just and proper.

/s) Fred Gilbert

FRED P. GILBERT

1401 National Bank of Tulsa Bldg.

Tulsa, Oklahoma

(918) 582-8201

Attorney for Plaintiffs

ao io

ITEM 3 — DEFENDANTS’ MOTION TO DISMISS

(EXTRACT)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MARK WALKER,

and |

CAROLYN WHITENER

d/b/a ‘*The Honk and Holler,’

Plaintiffs,

vs. » No. CIV-72-867

Hon. DAVID HALL, |

Governor,

State of Oklahoma,

{et al.],

Defendants.

MOTION TO DISMISS FOR FAILURE

TO STATE A CLAIM

The defendants move the Court as follows:

To dismiss the action because the Complaint fails

to state a claim against defendants upon which relief

can be granted. Argument and authorities supporting

defendants’ motion are contained in the brief attached

hereto and made a part hereof.

Respectfully submitted,

LARRY DERRYBERRY

ATTORNEY GENERAL OF

OKLAHOMA

/s/ Steven E. Moore

STEVEN E. MOORE

ASSISTANT ATTORNEY

GENERAL

—= =

112 State Capitol Building

Oklahoma City, Oklahoma 73105

ATTORNEYS FOR

DEFENDANTS

[7] oO °

PROPOSITION II

THERE IS A RATIONAL BASIS FOR THE

CLASSIFICATION IN THE CHALLENGED

STATE LAW, HENCE ITS VALIDITY MUST

BE UPHELD.

Although not conceded by the defendants, should

the Court conclude that it should determine the reason-

ableness of the classification in the challenged state law,

then the defendants submit that there are reasonable,

rational bases for the classification made by the Okla-

homa Legislature:

(1) That there is a difference in the ages of matur-

ity between males and females, with males

maturing at an older age.

(2) That the possibility of males 18-21 years old

consuming 3.2% beer to excess, becoming intoxi-

cated, and causing injury to the general public,

is greater than females 18-21 years old.

It has been long settled that the burden is on the

plaintiff to prove no rational, reasonable basis for the

challenged legis- [8] lation. If there is any reason-

able. rational basis for the Legislative classification, then

it must be upheld by the courts. Miskunas v. Union

Carbide, 399 F.2d 847 (7th Cir. 1968); Eslinger v. Thom-

as, 340 F.Supp. 886 (S. Carolina, 1972) (denial of em-

ployment based on sex upheld), and Williams v. McNair,

316 F.Supp. 134 (S. Carolina, 1970).

The defendants submit that even if the Court con-

—

cludes that it should determine if there is a reasonable,

rational basis for the legislative classification, that several

such bases are present. The Court cannot, as a matter

of law, decide the non-existence of any such reasonable

basis for the classification, hence the complaint must be

dismissed.

[signature block and certificate of service omitted]

— 27) —

ITEM 4 — ORDER OF DISMISSAL

(REFERENCE)

[The single District Judge’s Order of Dismissal,

entered on February 13, 1973, and filed February 14,

1973, is unreported, but is reproduced at Appendix E

to the Jurisdictional Statement herein. |

ITEM 5 — BRIEF OF APPELLEES, 10th CIR.,

NO. 73-1267 (EXTRACT)

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARK WALKER,

and

CAROLYN WHITENER

d/b/a ‘““The Honk and Holler,”

Appellants,

VS. ) No. 73-1267

Hon. DAVID HALL,

Governor,

State of Oklahoma,

fet al.],

Appellees.

BRIEF OF APPELLEES

[15] The appellees urge that Oklahoma's regulation is

not irrational, and that the Legislature could have rea-

sonably concluded that the prohibition of sale of 3.2

beer to males aged eighteen to twenty-one years old

would be reasonably related to the ultimate safety and

welfare of all of its citizens.

[20] It is obvious that the lower court felt that the

complainants below has not sustained the burden in their

allegations of showing that the challenged classification

was without justification, or in the alternative, that the

Oklahoma classification complained of, was not without

[21] a rational basis.

[23] It is obvious that the lower court, by its action in

dismissing the claim of the appellants, was able to per-

ceive some reasonable, rational justification for the legis-

lative classification challenged. ° ° ° The appellees urge

[24] that the Oklahoma Legislature could have reason-

ably concluded that the prohibition of the sale of 3.2

beer to males ages eighteen to twenty-one was related to

the health, safety, and welfare of all the citizens of

Oklahoma.

ITEM 6 — COURT OF APPEALS, REVERSAL

(REFERENCE)

[The decision of the United States Court of Appeals

for the Tenth Circuit herein, Walker, et al. v. Hall, et al..

No. 73-1267, October 23, 1973, vacating the single Dis-

trict Judge's dismissal and remanding for a three-judge

panel, is unreported, but is reproduced at Appendix F

to the Jurisdictional Statement herein. |

—=—

ITEM 7 — ORDER OF DECEMBER 13, 1973

(ENTIRE)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MARK WALKER,

and |

CAROLYN WHITENER

d/b/a ‘*The Honk and Holler,’

Plaintiffs,

VS. ) No. CIV-72-867

Hon. DAVID HALL, |

Governor, YTHRED

State of Oklahoma,

fet al.], CEC 25 yA

ndants. “iy, '

Defendants (9 EZ. A

ORDER

This is an action challenging the constitutionality

of the Oklahoma Statutes relating to the sale of 3.2

beer for consumption off the premises. The provisions

of 37 Oklahoma Statutes 1973 Supp. §245 which classifies

a minor for the purposes of such sales as being a female

under the age of 18 and a male under the age of 21 is

alleged to violate the equal rights protection clause of

the Fourteenth Amendment to the United States Consti-

tution by discriminating against males of the ages 18 to

21 by reason of sex. The action has been brought against

multiple state officials seeking to enjoin the enforcement

of the law prohibiting the sale of 3.2 beer to minors

as same pertains to males from 18 to 21 years of age.

A Three-Judge Panel has been convened in this

case pursuant to 28 U.S.C. §§2251 et seq.

=—

Defendants have filed a Motion to Dismiss for

Failure to State a Claim. The Motion is supported by a

brief and Plaintiffs have filed a Response opposing same.

[2]

In support of their Motion, Defendants urge that

the law being challenged relates to the regulation of

intoxicating liquors and is permissible under the Twenty-

first Amendment to the United States Constitution.

In California v. LaRue, 409 U.S. 109, 34 L.Ed. 2d

342, 93 S.Ct. 390 (1972) it is stated at L.Ed. 2d p. 350:

“These decisions did not go so far as to

hold or say that the Twenty-first Amendment

supersedes all other provisions of the United

States Constitution in the area of liquor regu-

lations.

This would indicate that the Twenty-first Amendment

may not bar granting the relief requested in the Com-

plaint.

A motion to dismiss should not be granted unless

it appears beyond doubt that the Plaintiff can prove

no set of facts in support of his claim which would

entitle him to relief. Conley v. Gibson, 355 US. 41,

78 S.Ct. 99, 2 L.Ed. 2d 80 (1957).

Defendants’ Motion to Dismiss is overruled. Defend-

ants will file their Answer on or before December 14,

1973.

It is so ordered this 13th day of December, 1973.

/s/ William J. Holloway, Jr.

UNITED STATES CIRCUIT JUDGE

/s/) Fred Daugherty

UNITED STATES DISTRICT JUDGE

/s/ Luther B. Eubanks

UNITED STATES DISTRICT JUDGE

=

ITEM 8 — ANSWER

(ENTIRE)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MARK WALKER,

and |

CAROLYN WHITENER

d/b/a ‘‘The Honk and Holler,’’

Plaintiffs,

vs. | ) No. CIV-72-867

Hon. DAVID HALL, Be te,

Governor, KITLED

State of Oklahoma, 5EC 14/873

[et al.], eh

Defendants. _ CLETK, UL § DiS FRICT COUNT

" prenedeiy recente

ANSWER

Come now the defendants, David Hall, Governor,

State of Oklahoma; Larry Derryberry, Attorney General;

Clarence L. DeWees, Chairman, Oklahoma Tax Com-

mission; Lawton L. Leininger, Vice-Chairman, Oklahoma

Tax Commission; M. C. Connors, Secretary, Oklahoma

Tax Commission; Robert L. Hert, Presiding District

Judge, Ninth Judicial District Court; Charles L. Head-

rick, District Attorney, Ninth Judicial District; Rose

Jarvis, District Court Clerk, Payne County; Frank

Phillips, Sheriff of Payne County; and Howard W. Hoyt,

Chief of Police of the City of Stillwater; and for their

answer to the complaint of the plaintiffs do hereby allege

and state:

[2]

FIRST RESPONSE

~~

The defendants admit. the allegations of the first

paragraph of the complaint.

SECOND RESPONSE ‘

The defendants do not have any knowledge of the

facts alleged in the second paragraph of the complaint

and therefore cannot admit or deny same.

THIRD RESPONSE

The defendants do not have any knowledge of the

facts alleged in the third paragraph of the complaint

and therefore cannot admit or deny same.

FOURTH RESPONSE

The defendants deny the allegations of the fourth

paragraph of the complaint.

FIFTH RESPONSE

The defendants admit the allegations of the fifth

paragraph of the complaint.

SIXTH RESPONSE

The defendants admit’ the allegations of the sixth

paragraph of Plaintiffs’ complaint.

SEVENTH RESPONSE

The defendants admit that M. C. Connors and

Lawton L. Leininger are members of the Oklahoma Tax

Commission, holding the positions of Chairman and Vice-

Chairman, respectively, and deny that Clarence L.

DeWees is presently a member of said Commission.

EIGHTH RESPONSE

The defendants admit the allegations of the eighth

paragraph of the complaint.

NINTH RESPONSE

The defendants admit the allegations of the ninth

paragraph of the complaint.

TENTH RESPONSE

The defendants admit the allegations of the tenth

paragraph of the complaint.

[3]

ELEVENTH RESPONSE

The defendants admit the allegations of the eleventh

paragraph of the complaint.

TWELFTH RESPONSE

The defendants admit the allegations of the twelfth

paragraph of the complaint.

THIRTEENTH RESPONSE

The defendants deny that any monetary amount ii

controversy is in excess of $10,000.00, but admit that the

situs of the allegations of the complaint are within the

Western District of Oklahoma.

FOURTEENTH RESPONSE

The defendants admit the allegations of the four-

teenth paragraph of the complaint.

FIFTEENTH RESPONSE

The defendants admit the allegations of the fifteenth

paragraph of the complaint.

SIXTEENTH RESPONSE

The defendants admit the allegations of the six-

teenth paragraph of the complaint.

SEVENTEENTH RESPONSE

The defendants admit the allegations of the seven-

teenth paragraph of the complaint.

EIGHTEENTH RESPONSE

The defendants admit the allegations of the eight-

eenth paragraph of the complaint.

NINETEENTH RESPONSE

The defendants admit the allegations of the nine-

teenth paragraph of the complaint.

= =

TWENTIETH RESPONSE

The defendants admit only that other sections in

Title 37, Ch. 2 of the Oklahoma Statutes provide admini-

strative and criminal sanctions for violations of the

statutes therein and deny other allegations in the twen-

tieth paragraph of the complaint.

TWENTY-FIRST RESPONSE

The defendants deny the allegations of the twenty-

first paragraph of the complaint.

[4] TWENTY-SECOND RESPONSE

The defendants deny the allegations of the twenty-

second paragraph of the complaint.

TWENTY-THIRD RESPONSE

The defendants deny the allegations of the twenty-

third paragraph of the complaint.

TWENTY-FOURTH RESPONSE

The defendants admit the allegations of the twenty-

fourth paragraph of the complaint.

TWENTY-FIFTH RESPONSE

The defendants admit the allegations of the twenty

fifth paragraph of the complaint, but deny that the

statutory scheme involved is discriminatory, and that

Clarence DeWees is a member of the Oklahoma Tax

Commission.

TWENTY-SIXTH RESPONSE

The defendants deny the allegations in the twenty-

sixth paragraph of the complaint.

TWENTY-SEVENTH RESPONSE

The defendants deny the allegations in the twenty-

seventh paragraph of the ‘complaint.

TWENTY-EIGHTH RESPONSE

The defendants deny. the allegations of the twenty-

eighth paragraph of the complaint. The defendants

_— =

spe ‘cifically deny that plaintiffs are entitled to any costs

of this action, including a reasonable attorney s fee.

FIRST DEFENSE

The State laws complained of in this case are not

unconstitutional

SECOND DEFENSE

The State laws now challenged regulate the sale and

possession of intoxicants within the territorial limits of

the State of Oklahoma. As such, the State's regulation

comes within the scope of authorized State activity

pursuant to the Twenty-first Amendment to the Consti-

tution of the United States of America. Under that

Amendment the states have an extraordinary power over

the regulation [5] of intoxicants due to their natural

tendency to get out of bounds, and to cause harm,

both directly and indirectly to the general citizenry of

the State. Oklahoma’s law herein adopted pursuant to

the Twenty-first Amendment to the United States Consti-

tution, is presumed valid.

THIRD DEFENSE

There is no constitutional right to consume intoxi-

cating beverages, and the sale of same is validly subject

to strict regulation by the Oklahoma Legislature. No

significant constitutional freedoms are jeopardized by the

Oklahoma laws complained of.

FOURTH DEFENSE

When a State regulates intoxicants pursuant to

power granted to it by the Twenty-first Amendment,

such regulations are subject only to minimal requirements

of due process or equal protection.

FIFTH DEFENSE

Due to the inherent dangers posed to the general

health, sefety and welfare of the citizenry of Oklahoma,

—3l—

involved in the sale and use of intoxicants. the strict

regulation of intoxicants, in the interest of protecting the

safety of the citizens, is a compelling state interest.

SIXTH DEFENSE

The Oklahoma Legislature could have reasonably

concluded that males aged 18 through 21 years consume

3.2% beer in a greater quantity than females in the same

age group with the result that that class of males has

a greater potential for causing harm while intoxicated

to the general citizenry of the State.

WHEREFORE, the defendants urge that the com-

plaint of the plaintiffs be denied, and that the consti-

tutionality of the State laws complained of herein be

upheld, and that the defendants be [6] allowed to

continue to enforce said duly adopted laws of the Okla-

homa Legislature.

Respectfully submitted,

LARRY DERRYBERRY

ATTORNEY GENERAL OF OKLAHOMA

STEVEN E. MOORE

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR DEFENDANTS

[certificate of service omitted]

ITEM 9 — PRE-TRIAL ORDER

(ENTIRE)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MARK WALKER,

and

CAROLYN WHITENER

d/b/a ‘‘The Honk and Holler,’’

Plaintiffs,

vs. >) No. CIV-72-867

Hon. DAVID HALL, ‘

Governor, I I LED

State of Oklahoma, FEB 51974

fet al.], :

Defendants. 3)

Deputy

FIRST PRE-TRIAL ORDER

Pursuant to a pre-trial conference held herein on

December 17, 1973, under Federal Rule of Civil Pro-

cedure No. 16, the following matters were resolved or

decided herein:

1. Burden of Proof. The parties did not agree as

to whether the burden of proving unconstitutionality of

the assailed statute lies with the plaintiffs, or whether

the burden lies with the defendants to establish consti-

tutionality. The plaintiffs and defendants have submitted

their briefs on this issue for the Court’s consideration.

2. Test of Constitutionality. The parties have both

taken the position that the issue that the test of con-

stitutionality to be applied in this case is so intertwined

— 33 —-

with questions of law on the merits, that it is incapable

of being stipulated to.

The plaintiffs contend that the State's assailed

classification can be upheld only if it is necessary to the

accomplishment of a compelling state objective, and that

no less onerous alternatives exist to solve the problem.

The defendants contend that the State’s assailed classifi-

cation must be upheld if it is found to be reasonably

and rationally directed toward the regulation of a matter

which is a compelling state interest.

3. Parties. Counsel for the plaintiffs advised that

the plaintiff Mark Walker has passed his 21st birthday,

and _ that [2] the plaintiffs, while not conceding

mootness or loss of standing, wish to add as an additional

party plaintiff one Curtis Craig, age 18.

Counsel for the defendants advised that Mr. Clar-

ence L. DeWees has been replaced on the Oklahoma

Tax Commission by a Mr. J. L. Merrill; that the posi-

tions on the Oklahoma Tax Commission have rotated:

and that these changes should be duly reflected.

There being no objections, the parties will by proper

motion add, substitute, and/or amend their parties.

4. Stipulations of Fact. Counsel for the defendants

stated the defendants would stipulate to the allegations

of personal data regarding the plaintiffs (and the newly-

added plaintiff). The plaintiffs will therefore not be

required to appear at trial to establish the historical

and: personal facts alleged in paragraphs 2, 3 and 23 of

the Complaint (or of similar allegations concerning the

newly-added plaintiff).

Regarding evidence relating to the permissibility vel

non of the sexual differentiation herein, the plaintiffs

intimated they would have nothing to adduce should the

—"

Court determine that the burden of proving constitution-

ality is upon the defendants; but indicated that they

might wish to adduce appropriate expert physiological

and/or psychological testimony if the Court were to rule

that the burden of proving unconstitutionality lies with

the plaintiffs.

Counsel for the defendants stated that the rationale

for the sexual differentiation at bar appears to be that

youthful males present a graver driving-while-intoxicated

problem than do youthful females, and that counsel

intends to offer certain traffic statistics to establish this

asserted behavioural difference.

Regarding these statistics, and pending submission

of copies thereof to plaintiffs’ counsel, counsel for the

plaintiffs will make appropriate stipulations in effect

waiving proper authentication and the hearsay objections

to the government [3] publications offered by de-

fendants, but not waiving other objection as to their

relevancy.

The parties agree to exchange a list of the names

and addresses of the witnesses to be called by each

prior to the tenth day before trial. Summaries of the

witnesses’ testimony shall also be exchanged on or before

the same date.

At the present time, therefore, the question of evi-

dence and testimony on the sexual differentiation at

bar is still unresolved; and the parties will promptly

adivse the Court as to progress in this regard.

5. Attorney's Fees and Costs. Counsel for the plain-

tiffs has abandoned his praver for attorney s fees, but not

for costs.

— 35 —

The foregoing will constitute the first pre-trial order

of the Court herein.

/s/ William J. Holloway, Jr.

UNITED STATES CIRCUIT JUDGE

/s/ Fred Daugherty

UNITED STATES DISTRICT JUDGE

/s/ Luther B. Eubanks

UNITED STATES DISTRICT JUDGE

APPROVED AS TO FORM:

[si Fred Gilbert

FRED P. GILBERT

Attorney for Plaintiffs

LARRY DERRYBERRY

ATTORNEY GENERAL OF OKLAHOMA

By /s/ Steven Moore

STEVEN E. MOORE

ASSISTANT ATTORNEY GENERAL.

Attorneys for Defendants

— 36 —

ITEM 10 — MOTION TO ADD ADDITIONAL

PARTY PLAINTIFF (ENTIRE)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MARK WALKER,

and |

CAROLYN WHITENER

d/b/a ‘‘The Honk and Holler,’

Plaintiffs,

VS. No. CIV-72-867

Hon. DAVID HALL,

Governor, F IL E D

State of Oklahoma,

Defendants. | xpree Pe “etre? cour

MOTION TO ADD ADDITIONAL

PARTY PLAINTIFF

Come now Plaintiffs, and pursuant to the Pre-Trial

conference and Order herein, respectfully move to add as

an additional Party Plaintiff CURTIS LEE CRAIG, a

member of the male sex whose date of birth is Septem-

ber 25, 1955 (and who is therefor presently 18 years

of age).

Plaintiffs would further allege that the said Curtis

Lee Craig is a citizen of the United States and of the

State of Oklahoma, and a resident of Cleveland County,

State of Oklahoma, within the Western District of Okla-

homa, and a full-time student at the Oklahoma State

University, at Stillwater, Payne County, Oklahoma, also

within the Western District of Oklahoma, where the said

Curtis Craig, who is desirous of purchasing 3.2% beer for

nee

off-premises consumption on a parity with like-aged fe-

males, has on numerous occasions attempted to purchase

such beer from inter alia the Plaintiff Carolyn Whitener,

only to be thwarted by the Plaintiff Whitener’s unwilling

but statutorily coerced compliance with the sexually dis-

criminatory scheme of the assailed 37 O.S. 241-245; and

wherefor Curtis Craig adopts and incorporates for him-

self all corresponding allegations of the Plaintiff Mark

Walker in the Complaint herein.

[2]

Plaintiffs would further allege that the prompting

for the instant Motion is that the Plaintiff Mark Walker

has since the commencement of this litigation passed his

21st birthday; but the Plaintiffs do not by their instant

Motion concede that the instant case is moot as to the

Plaintiff Walker, see Roe v. Wade (1973) 410 U.S. 113,

Part IV (A), at 124-125, 93 S.Ct. at 712-713, 35 L.Ed.2d

at 161, or that the Plaintiff Whitener’s standing (as a

prospective vendor) is in any way diminished to assert

the rights of 18-21 year old males (as prospective

vendees), see Eisenstadt v. Baird (1972) 405 U.S. 438,

Part I, at 443-446, and Dov v. Bolton (1973) 410 U.S.

179, Part III, at 188-189, 93 S.Ct. at 745-746, 35 L.Ed.2d

at 210-211.

Wherefore, premises considered, Plaintiffs pray that

Curtis Craig be added to the Cause herein as an addi-

tional Party Plaintiff.

Respectfully submitted,

/S/ Fred Gilbert

FRED P. GILBERT

1401 National Bank of Tulsa Bldg.

Tulsa, Oklahoma 74103

(918) 582-8201

Attorney for Plaintiffs.

[certificate of service omitted]

—

ITEM 11 — ORDER ALLOWING ADDING OF

ADDITIONAL PARTY PLAINTIFF

iN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MARK WALKER,

and

CAROLYN WHITENER

d/b/a ‘‘The Honk and Holler,”’

Plaintiffs,

VS. | No. CJV-72-867

Hon. DAVID HALL, FIL E D

Governor,

State of Oklahoma, MAYS 1974

fet al.], | e. ;

Defendants. a Z Leiter

ORDER ALLOWING ADDING OF ADDITIONAL

PARTY PLAINTIFF

NOW, on this 8 day of May, 1974, for good cause

shown, and as per the pre-trial conference and Order

herein (paragraph 3), Curtis Lee Craig shall be allowed

to be added to the Cause herein as an additional party

Plaintiff.

IT IS SO ORDERED.

/s/ William J. Holloway, Jr.

UNITED STATES CIRCUIT JUDGE

/s) Fred Daugherty

UNITED STATES DISTRICT JUDGE

/s) Luther B. Eubanks

UNITED STATES DISTRICT JUDGE

ITEM 12 — LETTER-ORDER OF MAY 13, 1974

UNITED STATES DISTRICT COURT

NORTHERN, EASTERN ANDO WESTERN DISTRICTS OF OKLAHOMA

CHAMBERS OF OKLAHOMA CITY 7310)

FRED DAUGHERTY

JUDGE May 13, 1974

Mr. Fred Gilbert

Attorney at Law

National Bank of Tulsa Building

Tulsa, Oklahoma

Mr. Steven E. Moore

Assistant Attorney General

State Capitol Building

Oklahoma City, Oklahoma 73102

Re: No. 72-867, W. D. Okla.

Walker, et al. v. Honorable David Hall, et all.

Gentlemen:

The Court has decided from a consideration of pertinent

cases that the burden of proof in the above case rests

on the defendants. The parties will proceed accordingly

with reference to the May 20 trial.

Very truly yours,

/s/ Fred Daugherty

Fred Daugherty

U. S. District Judge

ce: Honorable William J. Holloway, Jr.

Federal Building

Oklahoma City, Oklahoma

Honorable Luther Eubanks

Federal Building

Oklahoma City, Oklahoma

Clerk, W. D. Oklahoma

— 40 —

. aaa

ITEM 13 — TRANSCRIPT OF TRIAL

(ENTIRE)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

No. 72-867 Civil

MARK WALKER, ET AL.,

Plaintiffs,

VS.

HONORABLE DAVID HALL, ET AL.,

Defendants.

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

FRED P. GILBERT, Attorney at Law, 1401 Na-

tional Bank of Tulsa Building, Tulsa, Oklahoma,

74103, appearing on behalf of the Plaintiffs.

STEVEN E. MOORE and JAMES R. BARNETT,

Assistant Attorneys General, 112 State Capitol, Ok-

lahoma City, Oklahoma, appearing on behalf of the

Defendants.

The following proceedings came on for hearing on

the 20th day of May, 1974, before the Honorable Wil-

liam J. Holloway, Jr., U. S. Circuit Judge, Fred Daugher-

ty, U. S. District Judge, and Luther B. Eubanks, U. S.

District Judge, at Oklahoma City, Oklahoma, as follows:

—_—

[3] JUDGE HOLLOWAY: Good moming. Are there

Motions for Admission to the Bar?

MR. GILBERT: Your Honor, I don’t believe I have

ever been formally admitted over here.

JUDGE HOLLOWAY: Well, we will have to ask

someone to move you. One of your adversaries here.

MR. MOORE: I will make such a motion.

May it please the Court, my name is Steven Moore.

I am a member of the Western District Bar.

JUDGE HOLLOWAY: Very well. Have you applied

with the Clerk yet for the papers and submitted them?

MR. GILBERT: No, Your Honor, I have not.

JUDGE HOLLOWAY: Well, we should make that

motion.

MR. MOORE: We make that motion, Your Honor,

for the purposes of this trial, should we not, under that

rule, for your Court?

JUDGE DAUGHERTY: Are you admitted in any

Federal Court?

MR. GILBERT: Yes, Your Honor, the Northern Dis-

trict.

JUDGE DAUGHERTY: Under our rules, he can be

permanently admitted here is he is a member of another

Federal Court. Do you wish permanent admission?

MR. GILBERT: Yes, sir.

[4] JUDGE DAUGHERTY: He is eligible if he is ad-

mitted in another Bar.

JUDGE HOLLOWAY: Very well. Motion should be

granted. We are happy to have you.

Would you take your oath with the Clerk.

Do you ‘have an oath you give here?

THE CLERK: Yes, I do.

JUDGE HOLLOWAY: Members of the Bar will

please rise.

(Thereupon, the oath was duly administered.)

~ Ba.

JUDGE HOLLOWAY: Happy to have you.

We have for trial this morning, the case of Mark

Walker and others versus the Honorable David Hall and

others.

Are the parties ready in this case?

MR. GILBERT: The Plaintiffs are ready, Your

Honor.

MR. MOORE: The Defendants are ready, Your

Honor.

JUDGE HOLLOWAY: Very well. We have pre-

viously advised you that the Court is of the opinion that

the burden rests on the Defendants in this matter, which

I think the parties are aware of, and for that reason we

will proceed in the manner of letting the Defendants put

their matters first and carry the burden; evidence and

argument- [5] wise both.

At this time, if you wish, we will hear your brief

opening statements.

I will advise you, we have all studied your briefs

and are aware of your positions.

We will have opening statements at this time.

MR. MOORE: Thank you very much, Your Honor.

May it please the Court. The evidence which the

State will present this morning is entirely in the form of

statistics from estalshed publications by local reporting

systems.

We will have statistics from the Oklahoma State

Bureau of Investigation; the Oklahoma Department of

Public Safety, as well as other private studies and studies

by U. S. F ederal Governmental agencies. All statistics

which we believe will show that males within the age

group of 18 through 21 drive more, drink more and com-

mit more alcohol related offenses.

This will consist of the proof which we offer to you

this morning.

—43—-

——aa mT

That is all I have at this time.

JUDGE HOLLOWAY: Very well. For the Plain-

tiffs?

MR. GILBERT: Your Honor, very briefly.

We feel that the Defendants will not sustain a bur-

den of defending the discrimination at Bar.

[6] We contemplate that the Court may reject these

statistics which they offer, or in any event, will find

them unpersuasive.

If the Court does find they have made an arguable

defense, we do intend to call two witnesses. Dr. Joseph

Ruffin, who is seated at counsel table, and Dr. Ben

Jones, of the Oklahoma University Medical School, who

will offer expert testimony that there is no rational basis

known to medical or psychiatric science for the dis-

crimination in question.

I would advise that the parties, the Plaintiffs them-

selves, will not personally be present since all facts of

relevancy regarding their standing have already been

stipulated to.

JUDGE HOLLOWAY: Very well.

The Defendants may proceed.

MR. MOORE: Thank you, Your Honor.

I would like to call Mr. Don Wallock.

DONALD M. WALLOCK, JR.,

having first been duly sworn upon his oath, took the wit-

ness stand and testified as follows, to-wit:

DIRECT EXAMINATION

BY MR. MOORE:

Q What is your full name, please?

A Donald M. Wallock, Jr.

[7] Q What is your occupation, sir?

A_ I am an agent supervisor with the Oklahoma

—

State Bureau of Investigation. I am a supervisor of the

Uniform Crime Reporting Division. |

Q And how long have you held that position with

the State Bureau?

A Four years.

Q And could you describe precisely, as best you

are able, the duties of your specific function within the

agency? .

A We collect crime statistics from police depart-

ments. sheriffs’ offices around the State of Oklahoma.

These are arrest statistics.

Are you required by State law to do that?

A Yes, sir, bv the State Statute.

Could vou describe more particularly, if you are

able, the data which you keep?

A I beg your pardon? |

Q Could you describe the data, generally, which

you keep as a part of your business.

A Okay. We keep the number of crimes, the num-

ber of persons arrested for particular crimes, by age, sex

and race.

Q For what types of crimes do you keep the statis-

tics?

[8] A All parts of crimes, Part 1 and Part 2 crimes.

Part 1 are felony crimes and Part 2 are misdemeanor

crimes.

Now, I will show you what has been marked as

Defendants’ Exhibit No. 1 and ask you if you can identi-

fy that, please.

A Yes, sir. These are statistics that I gathered re-

lating to alcohol related offenses for males and females,

18 through 21 years of age.

Does your signature appear at the bottom of

this report?

—_ =

A_ It does.

Q Was this report prepared at my request and

from your records at the Bureau?

A It was.

Q Where are the original records which gave the

basis for this report?

A In my custody at the Bureau.

Q Is this a true and accurate copy of the original

records which are now located at the Bureau?

A lt is.

Q This report was prepared under your direct su-

pervision?

A That is correct.

Q Now, I notice from looking at the face of the

[9] report, that it shows that it is for the months

of September, October, November and December of

1973. Why is that?

A At this time, or starting with the month of Sep-

tember, 1973, the Oklahoma Bureau of Investigation as-

sumed the responsibilities for collecting these ‘statistics.

Prior to this time, these statistics were collected by the

Federal Bureau of Investigation.

Q Do you report these statistics to the Federal

Government?

A Ido.

Q Do they require such statistics be reported?

A They do.

Q Now, I notice also from the face of the report

that this shows persons who are arrested only. Why does

this report not show the disposition of those arrests, if

you re able to tell the Court?

| A This is a new program. The difficulty of ob-

taining disposition on these cases is tremendous. We will

get the disposition on the cases at the end of the year.

This is a once-a-vear statistic that we do collect. At the

end of 1974 we will collect the disposition of the number

of people arrested.

Q But, that has not been done at this time?

A Not at this time.

{10} QI would ask that Defendants’ Exhibit No. 1 be

admitted into evidence.

JUDGE HOLLOWAY: The Defendants examined

it?

Or the Plaintiffs?

MR. GILBERT: Your Honor, we have waived hear-

say objection. I do have an objection regarding rele-

vance. I can either present that at this time or at some

future time, according to the Court's convenience.

JUDGE HOLLOWAY: I think you better make your

objection now.

MR. GILBERT: Yes, very well. Your Honor, I ob-

ject to these statistics as being irrelevant for a number of

reasons, one of which they are merely arrest statistics

and not conviction statistics and the arrests are virtually

indistinguishable from the mere accusation,'! the mere

facts that more males, 18 through 21, are accused of

drunkenness or alcohol-related offenses, is completely

immaterial. What could be material is whether or not

they have been convicted more often.

Furthermore, these offenses are not categorized as to

whether, as to what kind of liquor they are derived

from. Whether this is a hard liquor, in excess of 3.2

percent alcohol, or what is called nonintoxicating liquor,

of 3.2 percent or less.

Now. what this case involves is the discrimination,

[11] in nonintoxicating liquor. There is no discrimina-

tion, as far as I know, in the law books of Oklahoma

regarding hard liquor. That is nondiscriminatory. So,

Acquisition” appears in the original.

~~

these statistics could very well be, for all we know, re-

flecting to the type of liquor which is not involved in this

lawsuit.

Furthermore, there is no, unless there is going to be

connection up with other evidence, as to show what the

percentage of males to females actually driving might

be, we don’t know whether these statistics are dispro-

portionate or not.

It may be, I just look at the statistics, they seem to

show generally that males seem to be accused of alcohol-

related offenses about ten times more often than females.

Unless there is some showing that there is actually an

equal amount of miles driven, we can’t tell just from the

face of these statistics, whether there is a disproportion-

ality in the sense of this discrimination.

Furthermore, there is another difficulty, Your Hon-

or. For instance, under the driving under the influence,

just taking? that as an example, we sce total persons

arrested. Well, 152 plus 107 plus 168. I have that tabu-

lated here somewhere. I believe it is — ves, okay. What-

ever that total comes out to be, 427. We can't tell from

these statistics whether, for instance, one person has

been arrested 427 times or whether it is 427 different

males who have been [12] arrested one time apiece.

If we cant tell that, we just can't really tell what

that figure really means. Even assuming it did result in

an actual conviction for 3.2 percent alcohol in particular.

Furthermore, I would suggest that there is no show-

ing whether or not there may be a discriminatory atti-

tude or practice of law enforcement personnel to selec-

tively prosecute against males in that teen-age, in that —

yes, in that teen-age group as opposed to females. There

may be, I submit, a folk myth around that males in that

“Saving” appears in the original.

ay |e

age category are naturally rowdy and therefore there

may be selective discrimination.

"My final objection would be, and perhaps I should

reserve this for final argument. I submit that at this time

and day, constitutional development in the United States,

that it doesn’t make any difference if there is some kind

of a statistical behavior difference between males and

females. The time has come when the equal protection

law means that it has been interpreted to mean what it

says, no matter how you differentiate it or split the two

groups of people. There is always going to be some

statistical fluctuation between the two groups.

If you could split between black and white there

would be some statistical difference or between [13]

Protestants or Catholics or Republicans or Democrats.

JUDGE HOLLOWAY: I believe you have stated

your position and we can let you argue further. If those

are the grounds of your objections as stated, the Court

can rule on those.

Is there any other ground you have not covered yet?

MR. GILBERT: Yes, sir, one.

We don’t know that the total population is in this

whole group, in this 5400 or this 427 arrests, according

to my statistics, since it is statistics, discloses that that

figure is just about one percent of the total male popula-

tion of that age category and is just de minimis, as a

matter of law, as a basis of condemning the other 99 per-

cent,

MR. MOORE: Your Honor, may I make an addi-

tional statement?

I didn't want to interrupt the Court.

JUDGE HOLLOWAY: I dont believe it will prove

necessary. Let us clear some matters up with counsel, if

you please, Mr. Moore, and then we will wait and see if

you need to respond.

ee

Mr. Gilbert.

MR. GILBERT: Yes, sir.

JUDGE HOLLOWAY: You indicated you were not

[14] objecting on the grounds of hearsay and we some-

what interpret that to me you don't object to this form

of summary testimony by virtue of the fact that the

original records are not here for your examination.

MR. GILBERT: That is correct, Your Honor.

JUDGE HOLLOWAY: The grounds are as stated.

Irrelevance, or that it is incompetent under the consti-

tutional poe

Well, I am not trying to phrase it for you. The

grounds ae you are indicating, though, you're not ob-

jecting to the form of the evidence?

MR. GILBERT: No, I am waiving the hearsay.

JUDGE HOLLOWAY: All right, and summary form

that counsel is introducing it by.

What I mean is, he has an accounting summary

virtually here.

MR. GILBERT: No, J don’t object on that aspect.

I am just, my objection is that they're irrelevant rather

than incompetent.

JUDGE HOLLOWAY: Very well, the objection will

be overruled. The Court is all of the opinion that the

evidence should be admitted. It is competent, and con-

sidered by the Court. The matters that you have argued

going to its weight will be considered.

MR. GILBERT: Very well, Your Honor.

[15] MR. MOORE: Thank you, Your Honor.

I might just point out in passing that the Statute,

I believe, which is in point on admissibility of all this

evidence is Title 28, United States Code, Section 1732,

which sets forth the so-called Shop Book Rule which

makes admissible into evidence, official records of gov-

ernmental agencies, State, Federal and County. If they

—

~~ a

are kept in the ordinary course of their functions and

business.

I would just state that very briefly.

JUDGE HOLLOWAY: Very well, thank you.

MR. MOORE: Also, the Court Rule, Federal Court

Rule, Civil Procedure Rule 44 (A-1).

Q Now, Mr. Wallock, from the records of the de-

partment and the report before you, which you have in

front of you, very briefly, you have that categorized in

terms of three offenses as they relate to alcohol. Is that

correct?

A That is correct.

JUDGE HOLLOWAY: Counsel, pardon me, just a

moment.

Do you have any copies of this exhibit?

MR. MOORE: Oh, yes, I am very sorry.

JUDGE HOLLOWAY: If you would give them to

the Clerk and we could be referring to them.

[16] Do you have other exhibits, Mr. Moore, you will

be following with?

MR. MOORE: Yes, sir, I do.

JUDGE HOLLOWAY: Very well.

BY MR. MOORE:

Q The first one of those offenses, I believe is driv-

ing under the influence.

Now, that is a violation of Oklahoma Statutes. Is

that correct?

A That is correct.

Q And you have these offenses categorized by

ages, 18 through 21, respectively. Is that correct?

A That is correct.

Q For the years, for the age 18 years, what were

the breakdown of the male and female arrests for the

crime of driving under the influence?

A 152 males were arrested, 14 females.

And for the age 19 years?

107 males, 2 females.

And for the age 20 years?

168 males, 8 females.

And for the age 21?

166 males, 13 females.

All right, now, the next offense which is de-

scribed in the report is so-called liquors laws. What does

[17] that involve?

A That involves —

MR. GILBERT: Excuse me. May I say another

formal objection for the record, Your Honor.

According to the Pre-Trial Order, it was my under-

standing that the defense of the statute would be based

on the statistics regarding to driving while intoxicated.

I think the other two categories of statistics would

be irrelevant for that purpose. He has the DWI statistics,

I think that is sufficient.

JUDGE HOLLOWAY: Well, are you claiming sur-

prise or any objection because of the pretrial order term?

MR. GILBERT: No, Your Honor.

JUDGE HOLLOWAY: You're just claiming they're

irrelevant?

MR. GILBERT: Yes, Your Honor.

JUDGE HOLLOWAY: Well, that question we have

considered and do overrule.

MR. GILBERT: All right.

BY MR. MOORE:

Q What are the offenses which come under the

heading of liquor laws, please?

On On Aen a®

A Possession of alcohol by minors, open bottle.

Q Operating an open saloon?

[18] A Operating an open saloon. Working in a sa-

loon.

So, this is just kind of a general catchall for all

other liquor violations?

A That is correct.

Q Does this include State offenses as well as vio-

lations of municipal ordinances?

A Correct.

Q Does the former, driving under the influence —

A Yes, sir.

Q What are the breakdowns for 18 vears of age,

male and female, for the so-called liquor laws viola-

tions?

A 119 males, 21 females.

Q Now, moving on, I will try to expedite this,

may it please the Court.

Let's go to the last category, drunkenness. What is

the offense which is described there?

A That is being under the influence of intoxicating

liquor.

The so-called public drunk?

A Public drunk, ves.

What is the breakdown, male and female, for

the 18 vears of age group?

"Male, 340; female, 39.

And for the drunkenness category, 19 years?

321 males, 33 females.

Twenty years?

305 males, 30 females.

Twenty-one years?

377 males, 34 females.

Now, just one additional question, Mr. Wallock.

What is your population coverage on these statistics?

A 84 percent population coverage.

Q And how many enforcement entities do you

have reporting to you on this data?

A 64 sheriffs’ departments and 130 police depart-

DFO erorco>

—

ments in the State of Oklahoma.

Q So, by your calculation, 84 percent of the Okla-

homa population is covered by this statistic which vou

have here?

A That is correct.

Q I have no further questions at this time.

JUDGE HOLLOWAY: May I ask you, what do you

mean by the other 16 percent?

How are they not covered?

A Those are not reporting departments, Your Hon-

or. Those are departments that did not report to us dur-

ing this particular period.

JUDGE HOLLOWAY: You mean areas of the State,

geographical areas?

A Yes, sir.

[20] JUDGE HOLLOWAY: I see.

Any cross examination?

MR. GILBERT: Yes, very briefly.

CROSS EXAMINATION

BY MR. GILBERT:

Q Mr. Wallock, I believe under the heading of

Liquor Laws, you said that could include such offenses

as illegally working in a beer joint?

A That is correct.

Q Are you not aware, sir, that a female may work

in a place which sells 3.2 percent beer at age 18 and

a male is prohibited therefrom until 21?

A I am aware of that, yes.

Q. And in view of that statutory discrimination, that

could affect the way these statistics look from a male and

female who do the exact same physical acts?

A That is correct.

Q That is, a female of 19 could work in a bar and

this would not reflect as a violation on these statistics,

— “ae

but a male could be doing the same work in the same

bar and that would reflect as a violation?

A That is correct.

Q Do you know to what extent that type of dis-

crimination is affecting, or has affected,’ these statistics?

A I have no way of knowing.

[21] Q I see. No further cross examination.

MR. GILEERT: I would raise what I have just

raised as a further objection to Line 2, Liquor Laws.

JUDGE HOLLOWAY: Let me ask you, please.

Do you have the figures available with you about

what part of these figures are the violations that counsel

is inquiring about?

A There is no breakdown of that, Your Honor, of

that particular violation. It is all lumped under Liquor

Law Violations. The reports that I receive lump them all

under one category.

JUDGE HOLLOWAY: Well, the renewed objection

is overruled. The Court, realizing the weakening of the

exhibit by the evidence developed, but it, we determine

goes to the weight again.

MR. MOORE: Just one very quick additional ques-

tions now.

REDIRECT EXAMINATION

BY MR. MOORE:

Q These, all of the classifications are in very broad

categories. Who establishes these broad categories? Did

you establish them?

A_ I did not. The FBI established what they, what

type of offenses they wanted them for.

Q But, driving under the influence and drunken-

ness [22] are very specific violations and specific

statutes?

“In effect” appears in the original.

A. That is correct.

Q That is all I have for this witness.

JUDGE HOLLOWAY: Anything further from this

witness?

MR. GILBERT: Nothing further, Your Honor.

JUDGE HOLLOWAY: May he be excused?

MR. MOORE: Yes, I would ask he be excused.

JUDGE HOLLOWAY: Any objections?

MR. GILBERT: No, Your Honor.

JUDGE HOLLOWAY: You may step down and you

are excused from attendance on the court.

MR. MOORE: We will call Phil Ballard. please.

PHIL BALLARD,

having first been duly sworn upon his oath, took the wit-

ness stand and testified as follows, to-wit:

DIRECT EXAMINATION

BY MR. MOORE:

Q State your name, please.

A Phillip G. Ballard.

Q And w hat is your occupation?

A Lieutenant, Oklahoma City Police Department.

Q How long have you worked for the Oklahoma

City Police Department?

A Ten years.

[23] Q What is your present position within the de-

partment?

A Planning and Research, which covers statistics

of our department.

Q Could you be more specific, if you can. Your

precise duties as head of the Planning and Statistics

Division in the department.

A Well, we record all arrest data and make uni-

form crime reports to the State which is forwarded to the

FBI now.

|

|

© Reports are prepared for the purposes of for-

warding to the FBI, Federal Bureau of Investigation?

A Yes, sir.

Q Is that done on a uniform basis?

A Yes, sir.

I have set in front of you what has been marked

as Defendants’ Exhibit No. 2 and ask you if you can

identify them.

A Yes, sir.

That is a copy of our form that we sent in to the

FBI covering the year 1973.

That is a copy of the report which you prepared

as a part of the business of your department and function

within the department; is that correct?

A Yes, sir.

[24] Q Is it a true and accurate copy of the original

report which you prepared?

A Yes, sir, it 1s.

Q Was a report prepared directly under your su-

pervision?

Yes, sir, it was.

Where is the original copy of that report?

I, the original copy was sent to Washington.

To the Federal Bureau of Investigation?

Yes, sir.

And you retained a copy in your files, is that

Oro ro-r

correct?

A Yes, sir.

Q Does a copy which you have retained in your

files, coincide exactly with a copy which is marked De-

fendants’ Exhibit No. 2?

A Yes, sir, it does.

So, let me ask you just one more time. Do you

identify this report as a true and accurate copy of ‘the

original report which you mailed to the FBI?

<i tine

A Yes, sir.

Q I will ask that Defendants’ Exhibit No. 2 be

admitted into evidence.

JUDGE HOLLOWAY: Has counsel examined this

one?

MR. GILBERT: Yes, Your Honor. I would make the

[25] same objections as to the exhibit.

JUDGE HOLLOWAY: Very well. On the same rul-

ing as previously announced, the objection is overruled.

BY MR. MOORE:

Q Now, Lieutenant Ballard, there are numerous

categories described upon this report. Before I get into

that, what does, from where did the data in this report

come?

A Theyre taken from the booking slips when the

person actually booked into the City Jail.

Q Is this a compilation of all the data of arrests

made by the Oklahoma City Police Department?

A Yes, sir.

Q And would that, so this would cover all the ar-

rests which took place within the City of Oklahoma

City. Is that correct?

By Oklahoma City Police officers.

And for what time frame are we de ‘aling?

Calendar year, 1973.

So, Defendants’ Exhibit No. 2 is a record of

calendar year 1973, of arrests by the Oklahoma City

Police Department?

A Yes, sir.

Q Now, do you know, on Item 21, what is the

offense described by that classification?

[26] A Driving under the influence.

Q Is this, as you report the data, is this for a

violation of the State laws or the City ordinances. or

both?

OO >

—,

ee

A Both.

Okay. Now, what, generally, did you hear Mr.

Wallock testify, would your testimeny as to the offenses

contained in the liquor ‘laws, would that be the same as

Mr. Wallock’s?

A Yes, sir.

It is a catchall classification?

A Right.

And also, drunkenness, is that a violation of

both the State laws and the municipal ordinances of

Oklahoma City?

A Right.

Q And violations for both would be included im

this report?

A Yes, sir.

Now, the number of arrests — incidentally, this

does show only arrests. Why does it not show disposi-

tions?

A Well, it is—we do make the dispositions, but

they re not broken down into age categories. It would be

almost impossible for the total work and we have never

had the occasion to do it before. And therefore, we do

not even [27] attempt to keep dispositions as to age

groups.

Q Is this the only data which the FBI requires

from you at this time?

A Yes.

Q Now, does your report break down the number

of arrests by age and sex groups?

A Yes, sir, it does.

Q Specifically directing your attention to Item No.

21, the age group 18 years of age, what were the number

of arrests by male and female offenders?

A Age group 18, there were 47 males and ten fe-

males.

And age group 19?

54 males and one female.

Age group 20?

72 males and five females.

And age group 21?

86 males and four females.

Now, dropping down to Item No. 23, which is

the so-called public drunk violation, what are. what is

the male and female breakdown for age group 18? |

A 18, 120 males and 18 females.

Q And 19?

A 104 males, 22 females.

Q And age 20?

{28} A 96 males and 19 females.

Q And age 21?

A 146 males and 16 females.

Q That is all the questions I have at this time of

this witness.

OFODeO ro

CROSS EXAMINATION

BY MR. GILBERT:

Q Officer, on my Xerox copy, up at the top where

the two pages are joined together, I have a break that is

a little hard to read. There is some italicized print in

parenthesis that savs—would you read that to me

please.

A Yes.

“Includes those released without having been for-

mally charged.”

Q Thank you. Now, Officer, I believe you stated

under the heading of Liquor Laws, this is sort of a

catchall category which includes everything relating to

alcohol that is not either public drunk or DWL

A Yes, sir.

—

Q Does that include an Oklahoma City ordinance

as well as State statutes?

A Yes.

Q All right. Does Oklahoma City have a possession

of beer by a minor ordinance?

[29] A Yes.

And what is classified as a minor for possession

of beer under that ordinance, if you know, sir?

A I believe it is under 18 for females and 21 for

males.

Q And you are aware that there is a State Statute

that a female may work in a bar at 15, but a male is

prohibited from such work until 21?

A Well, I am aware of the 1S. I really can't say I

am aware of the one for 21 for the male.

I see. Well, under the Oklahoma City Ordi-

nance, the female at 19 could, say, possess beer and that

possession would not show up as a violation of the li-

quor laws, would it?

A That is right.

But, if a male, 19, were to possess liquor it

would show up as a violation. Is that correct?

A Yes, sir.

Q All right. Do you know, Officer, to what extent

this discriminatory statute or ordinance is having an

effect upon the seemingly disparate 4 statistics under Item

22, Liquor Laws?

A I would have no idea.

All right. Now, Officer, under Item 21, Driving

Under the Influence, I believe you testified for male

[30] arrests at 18 was 47; age 19, 54; and age 21, 72.

Is that correct?

A Yes, sir.

*Disparaged” appears in the original.

—

Q All right, Officer, just looking at those statistics,

it seems to me as though there is a significant jump at

age 21 and beyond for male arrests. Is that correct?

A There is a jump.

Q All right. Do I understand from that, Officer,

that as far as your statistics reflect, there is less then a

problem of DWI for males 19, 19 and 20, than there is

for males 21 and above?

A Well, sir, I wouldn't be able to answer that

question without showing or knowing the basis of the

population and percentage given.

Q Let's say just on the basis of these statistics.

A There is more arrests for age 21 than there

was for 20.

Q Would that indicate that there is more of a

problem for male DWI at age 21 than above?

A Sir, I wouldn't necessarily think so.

Q It is possible?

A It is possible.

Q All right. Now, I will ask the same question

under Line 23, Drunkenness. I notice, 1 believe you

testified [31] that for a, the offense of public drunk

at age 18, you had 102 male arrests and at age 19,

104, and age 20, 96. Is that correct?

A Yes, sir.

Q On my copy of the statistics, 1 notice a signifi-

cant jump at age 21 and beyond. Is that correct?

A Yes, sir.

Q Do I understand from these statistics, then,

Officer, there is considerably less problem with public

drunk among males 18 than there is with males 21 and

beyond?

A Sir, all I can say is our statistics jumped from

that age category. I couldn't say that there is less of

a problem.

— 62—-

I consider —

I couldn't say there was less of a problem.

It is possible, though?

It is possible.

All right. And I would ask your answer would

be the same under Line 22, Liquor Laws? Well, that is

a little bit different. Never mind, I will withdraw that

question.

I understand that, for instance, let me ask one

qualifying question.

Under Line 22, Liquor Laws, I do notice that

[32] there seem to be more arrests for males 18 to 20

than for the immediate years beyond. Is it possible,

Officer, that that offense of possession by beer, beer

by a minor, could be influencing those statistics?

A Yes, sir, that and minor private clubs.

Q All right. No further cross examination, Your

Honor.

Oroary

REDIRECT EXAMINATION

BY MR. MOORE:

Q I would like to clarify one point just very

briefly, if I may.

Lieutenant Ballard, is there any age distinction in

the offenses of drivi ing while intoxicated? There is no

age requirement, youre guilty of the offense if you are

tive or sixty-five. Is that not correct?

A That is correct.

Q Would the same be true for public drunk?

A Yes.

Q That is all I have of this witness.

JUDGE HOLLOWAY: Anything further?

MR. GILBERT: No, Your Honor.

JUDGE HOLLOWAY: May he be excused?

MR. MOORE: I would request he be excused.

— 63 —

JUDGE HOLLOWAY: Is there any objeciions?

MR. GILBERT: No objections, Your Honor.

[33] JUDGE HOLLOWAY: You may be excused, Mr.

Ballard.

MR. MOORE: Your Honor, that is all of the wit-

nesses which I intend to put on.

There are other items of evidence which I would

like to have introduced into evidence, however.

JUDGE HOLLOWAY: Very well.

MR. MOORE: I am kind of uncertain as to the

procedure. They do have no supporting testimony, so I

would assume that I would just offer the exhibit and

make whatever statements I think is appropriate and

naturally counsel can respond.

JUDGE HOLLOWAY: Have you furnished counsel

with these exhibits?

MR. MOORE: Yes, I have.

MR. GILBERT: Yes, Your Honor.

JUDGE HOLLOWAY: Will there be objections to

them?

MR. GILBERT: There will be no hearsay objections.

My only other objections will be the same objections

regarding relevancy and materiality that I have pre-

viously stated.

JUDGE HOLLOWAY: Why don't you make a state-

ment identifying the exhibit by number and tell us in

substance what it is and we will make the record here.

MR. MOORE: Thank you very much, Your Honor.

{[34] What is marked as Defendants’ Exhibit No. 3

which has previously been furnished a copy to counsel,

at least a month ago, perhaps longer, is a study made

by OMEC, Incorporated. OMEC, Incorporated, is a

Norman corporation comprised of four doctors at OU.

They have a contract with the Alcohol Safety Action

Program, the local ASAP program operated here in

=

:

Oklahoma City, to conduct research and evaluate data.

JUDGE EUBANKS: Well, are these the M.D. type

doctors?

MR. MOORE: No, sir, they are Ph.D.’s.

JUDGE EUBANKS: All right.

MR. MOORE: Whose statistical backgrounds, and

the study by OMEC, Incorporated, is a part of roadside

surveys which they conducted as a course of their

re gular business pursuant to the contract with ASAP.

There is a cover letter with the report) which

generally describes the procedure which was followed.

Dr. Krenek, the person who extracted this data from

the files of OMEC, Incorporated, is out of town and

could not be here today and I did not feel it desirable

to subpeona him, especially in view of the fact. that

counsel has had the statistics for many months and has

waived his hearsay objections.

I would like to move the admission of Defendants’

[35] Exhibit No. 3 into evidence, at which time I

would make additional comments.

JUDGE HOLLOWAY: Is there any objections to

the Defendants’ Exhibit No. 3?

MR. GILBERT: No hearsay objection, Your Honor,

but the previous objections would apply to this exhibit

also.

JUDGE HOLLOWAY: The Court's ruling is the

same. The objection will be overruled.

MR. MOORE: I have furmished the Clerk with

three copies. I will wait until they re distributed.

JUDGE HOLLOWAY: The objections as stated is

overruled and the Defendants’ Exhibit No. 3 is received

in evidence and if I did not make the record clear,

the Defendants’ Exhibit No. 1 and 2 are also received

in evidence. The objection is being overruled.

MR. MOORE: Thank you, Your Honor.

—

EE a ee oe

As I said, pursuant to their contract with ASAP,

OMEC conducted a roadside survey during the years

of 1972 and 1973. As you can see from the cover letter

there —

JUDGE HOLLOWAY: Counsel, just a minute. I

believe your remarks now are getting into argument.

In other words, the exhibit is in evidence without ob-

jections and the Court will read it. If you want to allude

to it [36] during your argument, why, that will be

fine. We can proceed, with the evidence at this time.

Do you have any other exhibits?

MR. MOORE: Yes, sir. I would like to offer into

evidence Defendants’ Exhibit No. 4 and Defendants:

Exhibit No. 5, both documents of which are summaries

of the —

JUDGE HOLLOWAY: Well, we better take them

one at a time, if you will, and describe it generally

for us and then pause for objections.

MIR. MOORE: Yes, Your Honor.

Defendants’ Exhibit No. 4 is a report published by

the Oklahoma Department of Public Safety. During the

course of their business they publish these reports) vearly.

They are distributed to ‘the public, to anyone who

requests them and are published pursuant to State Statute

as part of their statistical data which they provide for

anyone needing the data and to the public at large.

rhe report is a nine, ten page report which covers

all their various breakdowns regarding collection and

by age groups and sex groups.

The exhibit and page number which I am particu-

larly interested in is Page 7 of the report, which shows

the male and female drivers killed, injured by age group

and sex group. It does not show them by levels of

intoxication.

[37] My sole purpose for offering this exhibit is to show

the, I think the exhibit is useful in that it shows the

number of accidents to which people in this age group

are involved, which admittedly, not being specifically

on pent, I think is relevant and should be considered

by the Court along with the other exhibits in the

case,

JUDGE HOLLOWAY: Now, you're offering, you

mentioned special items in Page 7. You're offering the

entire report or just the page?

MR. MOORE: I would offer the entire report.

JUDGE HOLLOWAY: Very well. Is there any ob-

jections?

MR. GILBERT: No hearsay objection, Your Honor.

I do offer the previous objections. I would also add

that statistics regarding injuries are completely irrelevant

as to question of culpability.

JUDGE HOLLOWAY: The objection is overruled

and the Defendants’ Exhibit 4 is admitted in evidence

and received in evidence.

MR. MOORE: Defendants’ Exhibit No. 4 covers

the fiscal year, pardon me, calendar year 1972.

Defendants’ Exhibit No. 5 is an identical report

for calendar year 1973.

I would ask that it be admitted also.

[38] JUDGE HOLLOWAY: Is there any objections to

the Defendants’ Exhibit No. 5?

MR. GILBERT: Your Honor, I am sure it will

just be the same objections. I haven't received a copy,

but I will just make the same objections as before,

Your Honor.

JUDGE HOLLOWAY: Very well. The same ruling

of the Court applies. The objection is overruled and

the Defendants’ Exhibit No. 5 is received in evidence.

MR. MOORE: Does the Court desire copies of both

of the exhibits?

=~

JUDGE HOLLOWAY: Yes, please. It would be

convenient if vou have three.

MR. MOORE: Yes, sir, I do.

The next exhibit, the next exhibit, again without

supporting testimony, which I would like to offer into

evidence, Defendants’ Exhibit No. 6, is a report issued

by Clarence M. Kelly, the Director of the Federal

Bureau of Investigation, a report published by the

Bureau and distributed in the course of its business.

Particularly, I would direct the Court's attention to

Page 123 and Page 129 of which I have distributed a

copy to counsel. IT would ask that Defendants’ Exhibit

No. 6, the report of the Federal Bureau of Investigation

be admitted into evidence.

[39] Are vou offering the entire report or just the pages

you refer to?

MR. MOORE: To expedite it, I would offer the

two pages to which I have referred.

JUDGE HOLLOWAY: Perhaps we better have a

cover page which shows the date. Isn't there a trans-

mittal letter from those reports, usually, to the President

or the Attorney General?

MR. MOORE: No, sir. All I have in my possession

is just the report as I have it in my hand.

JUDGE HOLLOWAY: Very well. You mavbe better

include the cover for identification. Just describe it.

I mean, that is what we will say in the record, that

vou re offering the Pages 123 and 129 and the cover.

MR. MOORE: Yes, sir, that is correct.

JUDGE HOLLOWAY: Very well. Any objections

to the Defendants’ Exhibit No. 6?

MR. GILBERT: It would be the same objection,

Your Honor.

JUDGE HOLLOWAY: IT would just) inquire of

counsel, what it is on Page 123 that he is inviting

— 68 —

attention to. Do you want to indicate to the Court what

the relevance of that Page 123 is?

MR. MOORE: Yes, Your Honor.

Weil, on Page 123 is Table 129 — I am sorry, I

[40] do not have copies to the Court. I have one Xerox

and one original. It shows the same classification of the

crimes under the Uniform Crime Reporting System as

have been testified to by the previous two witnesses.

The offenses of DWI, Liquor Laws and Drunkemness.

It shows for the vears ‘67 and ‘72, it shows the arrest

trends from those two vears for people under age 18

vears of age, not distinguishe ‘d_ by sex, to people over

18 vears of age.

The exhibit is offered solely for the purposes of

showing the trend of crime, if you will, for these offenses

over the last five-vear period.

JUDGE HOLLOWAY: Very well.

Do you have objections now to Defendants’ Exhibit

No. 6 consisting of the cover of the report and Pages

123 and 129.

MR. GILBERT: No hearsay objections, Your Honor.

My same objection on relevancy.

JUDGE HOLLOWAY: Very well. The objection is

overruled and the exhibit consisting of the cover and

Pages 123 and 129 of the FBI report — what vear

was that, please?

MR. MOORE: Year 1972.

JUDGE HOLLOWAY: For 1972, is admitted in

evidence.

[41] MR. MOORE: I would apologize to the Court,

that is the only copy I have. I would be more than

happy to leave this with the Court if they desire.

JUDGE HOLLOWAY: Well, we will have to have

— oh, you have made Xerox copies of the pages?

MR. MOORE: Yes, Your Honor. I have one copy.

_—

'

ES a

JUDGE HOLLOWAY: Well, all of us of the Court

have that report, I believe, so we will be all right.

MR. MOORE: Okay. Fine.

JUDGE HOLLOW AY: Thank you.

MR. MOORE: The next exhibit I would like to

offer is Defendants’ Exhibit No. 7 is a report published

by the Department of Public Safety, which bears the

emblem and seal of the Department with specific refer-

ence to Table 4 at Page 7 of the report, which shows

driver fatalities by a function of blood alcohol concen-

tration, sex and age.

The sole purpose for requesting the admission of

the Minnesota’ report, is to show that the Oklahoma

statistics are at least in line with statistics in other

states.

JUDGE HOLLOWAY: Very well. Is there any ob-

jections to the Defendants’ Exhibit No. 7?

MR. GILBERT: Just the same objections as before,

Your Honor.

JUDGE HOLLOWAY: The objection is overruled

and the Exhibit No. 7 is received in evidence.

[42] MR. MOORE: Defendants would next like to have

admitted in evidence Defendants’ Exhibit No. $8. It is

a publication entitled, Proceedings of Joint Conference

on Alcohol Abuse and Alcoholism. A study financed

under the auspices of the U. S. Department of Health,

Education and Welfare, U. S$. Department of Justice and

U. S. Department of Transportation.

There are. statistics in the documents which I

believe might be relevant to the case at Bar.

The document makes reference to several studies

conducted within the last 20 years.

I would specifically invite the Court's attention

to Pages 124 through 127, which is a comme ntary on the

study conducted in the State of Michigan where certain

“Minimum” appears in the original.

—

Wd 8 OA. 4

graphs were made from the data.

JUDGE HOLLOWAY: Well, we don't want to be

obliged to read the entire book. If you don't have an

interest in it for ev ‘idence — what is it, are those just

the only pages you're concerned with, 124 to 127?

MR. MOORE: That is correct, Your Honor.

JUDGE HOLLOWAY: Why don't you just offer

those parts of it and the cover, so that we are not

obliged to examine any further.

MR. MOORE: Very fine. I would ask that De-

fendants’ Exhibit No. 8 be the cover page and Pages

124 [43] through 127 of the report of the Federal

Government. I would ask it be admitted into evidence.

JUDGE HOLLOWAY: Is there any objections to

Defendants’ No. 8?

MR. GILBERT: Same objections as before, Your

Honor.

JUDGE HOLLOWAY: Very well, the ruling is the

same. The objection is overruled and the Defendants’

Exhibit No. 8, consisting of the cover and Page 124 to

127 of the exhibit is received in evidence.

MR. MOORE: Your Honor, | do not have the

extract Xeroxed. May I request leave of the Court to

substitute a Xerox extraction, in lieu of the complete

document.

JUDGE HOLLOWAY: Yes, You may do that.

MR. MOORE: Thank you. Your Honor, that is

all the evidence I wish to present at this time. The

Defendants rest.

JUDGE HOLLOWAY: Very well. You may proceed.

\{R. GILBERT: Your Honor, I am not quite certain

how to style the motion or the argument I wish to

make.

In plain English, it would be Motion to Demur.

JUDGE HOLLOWAY: We call that a Motion to

—

Dismiss under Rule 42.

MR. GILBERT: Well, it wouldn't be to dismiss,

(44] because we are Plaintiffs.

JUDGE HOLLOWAY: That is right.

MR. GILBERT: Let's call it a Motion for Judgment.

JUDGE HOLLOWAY: Very well.

MR. GILBERT: To outline the argument, the Court

may indicate it would prefer to consider this after the

conclusion of ail evidence.

To outline the argument, I would show that the

statistics, even interpreting them in the worst light to

the Plaintiffs, that arrests mean convictions and_ that

the figure, 427, means 427 separate individuals, et cetera,

et cetera — still, it indicates that at most, there is a

population, there is a problem with no more than about

2 percent of the male population, 15 to 20.

Further, that the statistics which the Detendants

themselves have mtroduced, show that there is a jump

or an increase of alcohol related problems with males

once they achieve 21 and/or older.

I would argue that on the basis of modern consti-

tutional law, it is improper and impermissible to condemn

an entire sex because of a characteristic displaved by

so few as 2 percent of the population.

Furthermore, it is irrational to discriminate [45]

against males 15 to 21 when by the very statistics relied

upon by the State, that age category displays the less

amount of problem related to alcohol.

If we are going to discriminate against some class

of males, it should be males 21 and above, not males

1S to 20.

In support of the argument I will just cite a couple

of very recent Cases.

In the case of Cleveland Board of Education versus

LaFleur, which was decided by the Supreme Court just

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this January. Now, that is the pregnant teacher's case.

The Supreme Court said the mere fact that some women,

when pregnant, are physically incapacitated from teach-

ing school, does not mean that all women are incapaci-

tated from teaching school and that any statute which

imposes a sexual sterotvpe upon the entire class or upon

an entire group of people for purely biological or ana-

tomical reasons, just blanket®, without any regard to indi-

vidual capabilities, is unconstitutional as a violation of

the due process.

JUDGE HOLLOWAY: Counsel, just a moment.

The Court is aware of the case law and of vour

position which you have made pertectly clear. The

motion will be overruled. The Court. will permit vou

to develop vour authorities and your arguments actually

after the [46] evidence is heard, but we feel we

should hear your evidence, if you wish to present it, and

the Motion for Judgment is by ‘the entire panel overruled.

MR. GILBERT: Very well.

Your Honor, I would call as the Plaintiffs’ first

witness, Dr. Joseph Ruttin, M.D.

DR. JOSEPH RUFFIN, M.D..

having first been duly sworn upon his oath, took the

witness stand and testified as follows, to-wit:

DIRECT EXAMINATION

BY MR. GILBERT:

Q Would you state yvour name and address to the

Court, please.

A Joseph Ruffin, 400 Northwest 16th, Oklahoma

City.

Q And what is your business, trade or profession,

sir?

A Lama physician, specifically a psychiatrist.

*“Blank” appears in the original.

Q And how lor Zz have vou been practicing the

profession of medicine or psychiatry, sir?

A Well, practicing medicine since 1953, psychiatry,

in private practice since 1965.

Q Are you licensed to practice medicine by the

State of Oklahoma?

A Yes, sir.

[47] Q Would you state your academic degrees and

qualifications, Doctor?

A A Bachelor's Degree from the University of

Illinois. Primarily in the areas of biology and chemistry.

An M.D. frem the School? of Medicine Loyola Univer-

sity in Chicago, in 1953.

Q Where did vou do your internship, sir?

A At William Beaumont Hospital in El Paso, in

1953.

A All right. Were vou an Army doctor?

A For a period of three vears, ves, sir

A All right. Have vou ever, have vou ever under-

gone any residency?

A Oh, ves. Two. One is a subspecialty of pre-

ventive medicine called Occupational Medicine and

Industrial Hygiene, and then subsequent to that I came

here to Oklahoma from 1962 to 1963, I was training in

psychiatry.

Q Doctor, in vour course of scientific studies, have

you ever had occasion to study what is commonly

called organic chemistry? | .

A Oh. ves.

Q All right. And, Doctor, in vour studies and

qualifications to be a doctor, a preventive physician and

a psychiatrist, have you ever studied a phenomenon or

disease known as alcoholism?

Strict” appears in the original.

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[48] A Quite a bit.

Q Are you familiar with the causes, symptoms and

treatments and social problems caused by the disease

of alcoholism?

A Very much.

QO Doctor, in your course of studies, have you ever

taken Courses involving the study of the sexual hormones

or the difference between the respective sexes?

A Yes, sir. That comes up quite frequently.

Q And have you ever studied the psychiatry or

the psychology of the adolescent and the young adult?

A Yes.

Q May it please the Court, subject to cross voir

dire, I would move to have this witness qualified as an

expert witness, competent to express his expert opinion

on matters of a biological and psychological nature.

JUDGE HOLLOWAY: Very well. Are the qualifica-

tions admitted?

MR. MOORE: Yes, sir, they are.

BY MR. GILBERT:

Q Doctor, to commence your testimony in chief

now, are you familiar with the substance known as

ethv] alcohol?

A Yes, sir.

© Would you tell the Court generally what ethy!

[49] alcohol is and what its significance to human

society Is.

A Well, ethyl alcohol is, oh, ethyl alcohol is one

of the simpler short-chain alcohols, | mean having two

carbons.

Q Feel free to make a drawing.

A Two carbons, and what distinguishes an alcohol

is its so-called hydroxin. There are many, many alcohols,

but this is ethanol.

Q All right. Could you state some other common

names for ethyl alcohol as we understand them in

English?

A Well, you want generally speaking, when we

talk about alcohol, this is what we are re ferring to,

ethanol.

A All right, now, is that the same alcohol as

alcoholism?

A This is the alcohol of alcoholism, ves. The alco-

hol that is common to intoxicating beverages.

Q All right, Doctor. Would you explain you your

expert language the effect of alcohol upon the human

body.

A Okay. Let me say to begin with, that the effect

that I am discussing and talking to are those effects

upon the central nervous system, central nervous system

specifically being the brain and spinal cord, and for the

purposes of our discussion, I am discussing effects upon

brain or brain tissue.

[50] Central nervous system tissue, this into peripheral

nerves that innervate® muscles and nerves which sensory

impulses originate and are transmitted, so we are talking

about central nervous svstem brain tissue.

MR. MOORE: May I make an objection as to the

relevancy of this line of te stimony?

JUDG E HOLLOWAY: The ‘objection is overruled.

MR. GILBERT: All right. Your Honor, I think

maybe — excuse me, Dr. Ruffin, of course, what we will

be driving to later, understand, is the question of sexual

differences in the ingestion of alcohol.

A Yes.

Q So, your discussion will be oriented towards that

ultimate end, so with that view in mind, explain it to

the Court as you feel best.

“Innovate” appears in the original.

=

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A Okay. I guess the first thing I am aware of

is that my discussion is essentially asexual, that is,

without sexual references. At least perhaps to the final

point at least.

Q Uh-huh.

A Now, let me say, also, that with few exceptions,

my best reference for the material that I am alluding

to is contained within two volumes titled Actions of

Alcohol, by Drs. Wallgran and Barry.

I am prepared to leave these as references.

[51] This is an extraordinary compendium, unbelievably

detailed, of all research directed to the actions of alcohol

through the year 1970, approximately. It contains every

conceivable reference.

MR. MOORE: Excuse me. Will the witness repeat

the name of the books, please.

A You want them? I can give them to you.

MR. MOORE: Just the title and authors, please.

A Actions of Alcohol. The authors being Wallgran,

W-a-l-l-g-r-a-n, and Barry.

MR. MOORE: Thank you.

A October, 1970.

Now, first, there is the matter of the cellular basis

of ethanol on the nervous system and the electro-

physiological effects of ethanol upon the nervous system

functions have been studied.

Now, very simply, in summary form, what ethanol

does is to detroy or at least inhibit or depress the

electrical efficiency of nervous tissue. Specifically affecting

the behavior of the nerve cell membrane which main-

tains the charge, that is required for the efficient trans-

portation of the nerve impulse.

In effect, what happens is that ethanol affects the

functioning of the nerve cell membrane in such a fashion

that the capacity of that nerve cell battery to maintain

[52] the charge and to discharge is impaired’. It loses

its efficiency in this respect, it becomes depressed.

Now, then there are other effects upon the central

nervous system, looking at it in a more global sense.

We can see how electroencephalogram traces indi-

cate regular function of the nervous system becomes

depressed.

Other parts of the brain have been studied in more

detailed ways, but particularly in lower animals, and

again, it is regularly shown that alcohol depresses the elec-

trical functioning of various parts of the nervous system.

There are certainly very little evidence for any

stimulant or beneficial effect of anything! alcohol does

on any sensory capability.

Specific sensory functions have been studied. Specific

motor functions have been studied. Specific combinations

of sensory and motor functioning have been studied,

and in any event, the more complex the task studied,

the more ready is the evidence that alcohol does produce

a depression or impairment of function.

Lastly, there has been systematic study of complex

behavioral effects upon intellectual function. How people

behave verbally. Matters of judgment. How their

[53] emotionality is influenced by alcohol consumption.

For instance, these have been studied in projective

tests. Tests like the “Ink Blot Test” or Rorschach Test

are shown that the person under the influence of alcohol

becomes increasingly impulsive and superficial and has

a tendency to elect risky alternatives, especially in hypo-

thetical situations.

Let me say in summary, and here I refer back

again, to the compendium by Wallgran and Barry. There

has been a striking absence of systematic sex effect

studies as a result of systematic sex effect from alcoho!

dosage.

*Comparative” appears in the original.

“Any” appear in the original.

—_ =

There is some evidence, but not much.

Q Let me ask this, Doctor. You define or describe

the chemical effect of — first of all, is ethanol the

same thing as ethyl alcohol?

A Yes, sir. Ethyl is the two-carbon alcohol.

q. All right. Now, you define the effect of ethyl

alcohol as impairing the electrical functioning of nerve

cells?

A Yes, sir.

Would your statement be true for members of

the human species, 18 through 20 years of age?

A Yes.

Q To your knowledge, is there any, either in, to

your knowledge, or in the opinion of medical science,

is there [54] electrical or anatomical difference in

the male and female central system?

A None whatsoever.

Q All right. To your knowledge, is there any

difference between males and females and the way that

ethyl alcohol gets into the body and_ is transported

throughout the body to the blood or to the nervous

system?

A None.

It is absorbed very directly and immediately through

the stomach wall. Metabolized almost entirely within

the liver.

Q Is that the same for both sexes?

A Yes, sir.

Q Is that the same for all ages, the mechanism?

A Yes.

All right. Now, Doctor, sometimes I hear about

things called hormones or a chemical difference between

male and female.

Could you explain to the Court what that means

and whether or not that has any effect upon the, chemi-

cal effect of ethyl alcohol on the central nervous system?

A Well, there ce ‘rtainly are very specific chemical

differences between male and female and especially I

would guess most distinctively in the matter of the so-

called sexual hormones.

[55] Now, there are sex-related hormones that are

produced by the adrenal cortex, but the most significant

sexual hormones are produced by the sex specific gonads

of the male and female.

Again, this is a large — there are large families

of these hormones, but essentially the sex hormones

produced by the male is one referred to as testosterone.

The sex hormone produced by the female is, the female

ovary, is estradiol, d-i-o-l, estradiol.

A Is that all one word?

A Yes.

Doctor, either in your opinion or in the opinion

of medical science, as you understand it or know. it,

do these sex hormones, testosterone and estradiol. have

any effect upon the direction of ethyl alcohol with the

function of the central nervous system?

MR. MOORE: Your Honor, I would object to asking

any opinion other than his own. His own opinion is fine.

JUDGE HOLLOWAY: The objection is sustained.

The question should be confined in this re spect to the

doctor's own opinon.

BY MR. GILBERT:

Q Doctor, do you have an opinon as to whether

or not the sexual hormones that you have mentioned,

the varying hormones between the two sexes, have any

effect upon [56] the interaction between the central

nervous system and ethyl alcohol?

A I would say sexual hormones. specifically, have

no such effect.

Q [am sorry?

~

A Have no such effect.

All right. Doctor, let’s move from the realm of

straight'! physiology to the realm of psychiatry, or the

mind.

With reference to members of the human species,

18 through 20 years of age, is there any evidence or

do you have any opinion as to whether or not there is

a difference of intelligence between the sexes?

A No difference in intelligence between the sexes

from the point of view of formal psychological testing.

I have noticed that many, many of my clinical psycholo-

gist friends who have considerable expe ms in this area

are impressed that younger boys — here I am thinking

of about children, savy, between the 8 ot 12, are less

interested in the testing situation and so perhaps those

are very minor differences and again, by clinical psy-

chologists, not accepted as significant, and my own

opinion is, that such differences are really insignificant.

JUDGE HOLLOWAY: Are what?

Are insignificant.

BY MR. GILBERT:

[57] Q Doctor, I sometimes hear a folk myth that

girls are more mature than boys or that girls mature

earlier than boys. With reference to the human species,

specifically 18 to 20, do you have any comments or

opinions about this folk my th?

A Okay. Well, w hen we look closely at that, that

phrase, that collection of phrases, it seems to me what

people are usually referring to, of course, is, first, the

earlier manisfestation of secondary sexual characteristics.

In the developing girl, the girl developing into

womanhood — so, this is specifically a physical kind of

maturation and the male, you know, runs a couple of

“Trait” appears in the original.

~

years behind that, two or three.

Secondly, I notice as I have heard people talk

about this, they seem to be referring also to the greater

propensity, the greater interest that the young woman

would have in making marriage, forming a family, the

nesting, the interest in nesting, if you would like.

That seems to be what I hear people saying as

they talk about the greater maturity during these years

of the woman. The developing woman.

A All right. By the time the average human reaches

the 18th year, both male and female, do you have

[58] an opinion, as to whether or not there is any

difference in emotional maturity between the sexes

A My own clinical — and this is based upon my

regular w ork with young people.

I find no essential difference in their maturational

levels from the point of view of their emotional or

psychic development. Both of them have a lot of work

to do for the rest of their lives.

JUDGE HOLLOWAY: Emotional or what?

A Emotional or psychological development.

BY MR. GILBERT:

A Doctor, are you aware of any scientific or ex-

perimental evidence or do you have an opinion regarding

the ability, respective!” ability, of males and females with

special emphasis on the 18 to 20 years of age bracket,

in their respective abilities to handle alcohol in the

normal social context or in the normal context?

A Now, are you referring to the ability to — well,

I guess we have already dealth with that, not — are

you talking about alcohol using behavior?

Q Right. From the behavioral aspects.

A_ I see. My impression is that males seem to have

'2“Respect of” appears in the original.

~—~

Vow we Ce Bee

a greater interest in experimenting with alcohol, or that

somehow the use of alcohol, alcohol using behavior

seems to be associated with the idea of being a man.

So, we see some, [59] you know, experimental inter-

est in some alcohol using behavior that certainly is

associated with that. Is that the response to your ques-

tion?

Well, I was thinking more in a biological sense.

Can you think of any difference in the male and females

biological ability to handle alcohol?

A Well, now, only one thing occurs to me, and

that is that very simply put, women are, on the average,

smaller than men and very specifically their volume of

body water is less than a man. So, given a fixed dosage

of alcohol, a woman will regularly obtain a_ slightly

higher blood level of alcohol than a man would.

Q To your knowledge, Doctor, is that difference

which, is that difference enough to be immediately or

clinically significant?

A I would say perhaps it is, and we have some

slight evidence to that effect in a study that is recently

done by Dr. Ben Jones, here at Oklahoma City, in our

Center for Alcohol Related Studies.

Q Is that the Dr. Ben Jones who is present here

in the courtroom today?

A Yes, And this is titled “Sex Difference in Re-

sponse to Alcohol’ where memory functioning in both

men and women have been studied systematically.

Q All right. Now, Doctor, he will be available to

[60] testify next. Since it does tie into your testimony,

could you just summarize what the findings were,

however —

MR. MOORE: I object, Your Honor.

MR. GILBERT: Let me rephrase the question.

JUDGE HOLLOWAY: Very well.

—_

BY MR. GILBERT:

Q Are you familiar with his study and his findings?

A Yes.

Q And do those, do you have a, are those findings

consistent with what you understand about the relation-

ship between the nervous system and ethyl alcohol and

whatever sexual differences there may be?

A Yes, very much so.

All right. Would you summarize then, what

those findings were.

MR. MOORE: I renew the objection, Your Honor,

I don't feel that Dr. Ruffin is competent to testify

from another doctor's report. Especially since that gentle-

man is present in this courtroom and available to testify.

JUDGE HOLLOWAY: Objection is sustained. You

may answer the question as to his own opinion, from

his own studies, but to refer briefly or merely to the

other doctor’s opinion would not be competent.

BY MR. GILBERT:

[61] Q All right. I was just doing it for the sole

purpose of linking it up.

JUDGE HOLLOWAY: You can ask him what his

opinion is and then ask him if it is the same.

BY MR. GILBERT:

Q. All right.

Well, doctor, is your opinion about the respective

abilities of young adults to handle alcohol the same as

or would they be consistent with Dr. Jones’ conclusions?

A Yes. And something I was particularly pleased

by was Dr. Jones’ incidental observation that perhaps

women have even a greater tendency —

MR. MOORE: I object, Your Honor. Let Dr. Jones

testify to this.

JUDGE HOLLOWAY: I believe that the objection

is well taken in line with the Court's ruling and the

=—

+. 2a

——

other physician can testify.

MR. GILBERT: Very well.

JUDGE HOLLOWAY: Dr. Ruffin may testify as to

his own opinion as to this point you are developing,

if you wish, but not merely as to what the other

physician —

MR. GILBERT: Yes.

Q Dr. Ruffin, you have heard the order of the

Court. If you have something of your own to say, vou

may say it,

[62] A Yes. Now, I am responding to a finding of

Dr. Jones’ study, right?

JUDGE HOLLOWAY: Well, vou may state your

opinion, Doctor, on the question bei ‘ing asked. We are

pleased to receive it. Your own opinion.

A Fine. That women tend to become intoxicated,

seems to me, a little more readily than males do on the

same fixed dosage of alcohol, but also they have an

increasing tendency towards intoxication or some ty pe of

emotional difficulty that would appear to be a kind of

impairment in their premenstrual period.

I have had this clinical impression for a long time.

It is quite interesting to me to see it corroborated in

the experimental situation.

Q All right, Doctor. You are aware that this is a

lawsuit to determine the legality of a statute which

allows females to purchase 3.2 percent alcohol at age 15

while males are prohibited thereform until age 21. You

are familiar with that, are you not?

A Yes.

Q All right, Doctor. Drawing upon your own

expertise, do you have an opinion, based upon either

chemistry or biology or neurology or medicine or psy-

chology or psychiatry, as to whether or not this dis-

crimination is rational?

[63] A Specifically, the 15 to 21 years discrimination?

Q Yes, that is right.

AI find no rational basis for such a discrimination.

Q Thank you very much.

You may cross examine.

CROSS EXAMINATION

BY MR. MOORE:

Q Dr. Ruffin, let's just start at the last there.

You see no rational basis for the classification, none

whatsoever?

A For the classification?

Q Of the state law that we are talking about today.

A Oh, ves.

Q You see absolutely no basis for that classifi-

cation?

A For that specific classification, no, sir, I do not.

Q Are you talking about now, solely within the

terms of biological chemical standpoint or any type of

justification? In other words, is your testimony going

outside the scope of your expertise or are you just

saying that within your area of expertise there is no

rational justification? I want to be very clear on that.

Am I clear?

[64] A No, I am not understanding your question.

Q Well, it is a very important statement you made,

Dr. Ruffin. You said that there was no rational justifica-

tion for the state law which we are talking about.

A For this discrimination or ages between 18 and

21°

Q That is right.

Can you say there is absolutely no rational justifi-

cation or is there just merely no rational justification

from biological, sociological or ‘psychiatric standpoint?

A I would say none from a biological, sociological

~_—

or psychiatric standpoint, ves.

Q Thank you.

Now, I am sorry, you said, but I don't recall, how

long have you been a practicing psychiatrist?

A Since 1965.

Q About nine years?

A Yes.

Q Do you specialize in the treatment of alcoholics?

Do I gather that from your testimony?

A Actually, I do a great deal of work with alco-

holics, ves.

Q How many patients have you had, male, female,

in this age group which we are talking about, 18 through

21? [65] Generally, I don't certainly require a pre-

cise number.

A You mean people who would be defined as

alcoholics?

Q Patients, people who. have come under your

observation, hundreds, thousands, ten —

A Well, I would say several hundred.

And how many of those several hundred have

been alcoholics, male and female? Could you generalize?

A I would say what you and I and probably all

members of this Court regularly define as alcoholism is

seldom defined in this group of people, seldom defined.

We see alcohol use. but not someone labeled as alco-

holics. I am not saving it doesn't exist. I am saying

you seldom find it.

What is your definition of an alcoholic then?

The chronic problem drinker?

A That is certainly the ultimate statement of alco-

holism.

Q Habitual user?

A Yes, and also compulsive use. You know, inability

=

| | i aa

to take a drink and stop. That is certainly » very fine

definition.

Q Have you seen any chronic compulsive drinkers

in this age group, 18 through 21, male or female?

A Perhaps I have seen someone, 20, 21, I think I

[66] have seen a few young males like that, ves. Most

of what I see in this age group is the use of other

chemicals, other than alcohol, other drugs.

QI see. So, you have seen some males 21 and 22

or within your definition, alcoholics, but no females. Is

that correct? Am I accurately summarizing your testi-

mony?

A Offhand, I can think of two young women who

were alcohol abusers too. I have seen more males than

females.

Q More males than females?

A Oh, Ves, Ves.

Q Now, obviously, then, most of the alcoholics

or problem drinkers, which you treat, are older in age

then. Is that correct?

A Most of those would eventually come into treat-

ment, ves.

Q Now, in the course of your therapy with these

people, could you generalize as to what time they started

drinking?

A Oh, it is amazing. I am surprised at how often

many of these people will tell, beginning to drink at

9, 10, 11, 12.

Q 18, 19, 20, 21?

A Usually earlier, usually earlier.

Q Is there any variation that you could state with

[67] regard to males and females when thev start drink-

ing? Would there be any age variation there, generally

speaking?

A Well —

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Q If the question is too general, feel free to tel]

me.

A No, let me think about it for a minute.

My impression would be that a woman might start

drinking later.

Q Okay. Now, during your direct testimony —

well, let me recap for a moment.

Your testimony was that as a general statement,

women start drinking later than men. Is that correct?

And that is based upon your experience with alcoholics

that you have treated in later life and you go back and

question them as to when they started. Is that a correct

brief summary of what you have said?

A Yes. I am sure the question has been more

systematically studied.

Q But — well, isn't one of the problems in this

area, and correct me if I am wrong, but isn't one

of the problems in this area is that there have been a lot

of studies conducted and statistics in the area of alco-

holism as a function of age and sex. Is that an accurate

statement?

A It is certainly what I have found, yes.

[68] Q So, we —

JUDGE HOLLOWAY: Pardon me, but do you mean

ves, there have not been many studies done on it?

A Yes, there have not been many studies. That is

very evident in this book. There are a lot of references

to sex related differences, that is through 1970.

BY MR. MOORE:

Q I am sorry. I didn't hear the statement you

made to the Court there.

There are, are there not, a lot of studies in the

book?

A No, there are very few studies in the book,

studies of orangutans and chimps and rats and mice.

— 89 —

Q So, we are dealing with limited data. Is that

right?

A That is right.

Q Okay. In the course of your direct testimony,

you referred to the idea that women mature faster than

men. Men mature faster than women. Now, were you

speaking of that in a lay sense or — let me ask you this.

Is there a credible theory within your position that men

mature slower than women?

A None whatsoever.

Q There is no such credible doctrine, even though

you don't agree with it?

[69] A Now, wait a minute, let me be specific now.

There is no disagreement with the generalization that

women mature, physically, you know, sooner than you

do.

That is what you call the primary?

Secondary ¢ characteristics.

I am sorry, secondary.

Now, as far as the psychic or emotional develop-

ment, I would say essentially no difference and here,

of course, we are getting into, you know, a nice argument

about what constitutes psychic or emotional maturation.

Q You said essentially no difference. Is there any

difference?

A None that I could find in my own work.

Q So, it is your opinion that there is no difference

in a psychiatric point of view between the maturity

levels of men and women?

A Yes.

Q Is there a credible psychiatric school of thought

to the contrary?

A No. I would say that psychiatric schools of

thought, these days, with reference to the issue of matu-

rity —

> r >>

a= OF)

QO Yes.

A — are achieving a remarkable degree of consis-

tency, [70] which is unusual in psychiatric work, I

may add. And here, if you wish, I can cite, you know,

two references.

Q No, I think you have made your point.

A You see, simply that the maturation or the

maturation process is essentially a lifetime task, you

know, proceeds continually through life. Through mar-

riage, through growth of children and on through death,

and as a matter of fact, how we handle death is an

expression of our degree of maturity.

Q So, professionally speaking, I am talking about

your profession — there is no credible school of thought

which supports the proposition that men mature slower,

is that correct?

A Right.

Q Is there, have you heard lay people express this

opinion?

A Yes, it is a Common myth, it is a common myth.

Do you think it, if those lay people might

include legislatures —

MR. GILBERT: I object. That is getting opinions

out of the doctor's field of expertise.

JUDGE HOLLOWAY: The objection is sustained.

We believe the question is argumentative.

BY MR. MOORE:

Q Well, let me get to this lay opinion, if you will.

[71] You were talking about maturity. I guess in a

practical sense, in terms of the nesting characteristic of

women or a woman during this age period. A woman

shows more compensity to settle down.

A Yes.

Q That is what most people think?

A Uh-huh.

Q And that is what they refer to when they talk

about different levels of maturity, is that correct?

A That is correct, that and the greater tendency

toward quietness and less rambunctiousness.

Q Do you agree with that?

A Do I agree with what?

Q That women show a nesting instinct or settling

down instinct or whatever you want to call it?

A I think women are quieter people. They are less

active and that is readily demonstrated beginning in

the early years of development.

Q So, I am not a psychiatrist, but if I were to say

that maturity to me means settling down, let’s assume

that, then it would be accurate to say that men mature

later than women. Is that correct?

A Well, by your definition.

You were present in the courtroom during the

statistical data which I went through, which showed the

[72] -various arrest levels, were you not?

A Yes, uh-huh.

Q Without showing you those in detail, they show

that males are arrested a lot more than females.

A Uh-huh.

For operating an open saloon, possession of

liquor, public drunk, all types i °? aie Why is that?

Do you have any professional opiniofas»to that?

Do you have any professional explanation for the

statistics which I have offered today or any comment

on them?

A Oh, I have some comments on them, yes.

Q Well, I would welcome them.

A Okay. Let’s see, let me just — no, the two that

you presented to the Court initially, your two first

exhibits.

Let's see, I have seen neither of these previously.

The first is that a copy of the report presented by

Mr. Wallock.

QQ Yes, sir.

A Now, here I am just, you know, roughly, eye-

balling —

Q Well, I don't want you to — it is not necessary

to examine the statistics in detail.

A Well, I am talking about a rough eyeballing.

Q Can you account for that difference from a

[73] professional point of view, from the psychiatric

point of ag

A Oh, I see it is just normal, you know, this is

how, this is a boys and girls are in our society where

alcohol is available.

Q Boys drink more than girls?

A I don't know that. They may. All right, secondly,

somehow they come to the attention of the law more

readily, however that —

Q So, there is two possibilities.

A Right.

Q It is possible that boys drink more than girls

and it is possible that boys are under the scrutiny of

the law enforcement authorities more than girls?

A Uh-huh. Well, what I am impressed with is that

the male, female differential, not boy and girl differential.

Q Now, let me ask you another question in winding

up here.

You testified, there may be some overlap here, but

you testified to the behavioral aspects of alcohol?

A Uh-huh.

Q And you said that the male shows a greater

propensity to experiment. Could you elaborate on that.

Are you saying that a male might be more inclined to

experiment with alcohol than a female in ages of 18

through 21?

(74] A That seems to be so. We study, you know, a

pure group of males, that —

Q What do you attribute this innate curiosity or

experiment — Is there any known explanation for it?

A Well, none except the proclivity that is, again,

how should I say, immensely normal during adolescence

and particularly in connection with the issue of one’s

peer group.

Q Is it true that males are more aggressive than

females?

A I don't think there is any question that males

are much more active and much more, what you would

call aggressive.

Q In all aspects of their human conduct, whether

it be business, fighting, driving, drinking?

A Well, I can't say in all aspects, but T think very

prominently so, and very generally so.

Q So, if an 18-year old female had about. three

beers and an 18- year-old male has about three beers

and they both slipped behind the wheel of separate

cars, it is not inconsistent to think that the male would

be more aggressive?

A Well, there is several considerations there. First,

the problem in management of aggression is usually

associated with whatever other kinds of emotional con-

flicts [75] exist within the individual at that moment.

In — words, I can be a very aggressive person.

Okay, I am of a high activity behavior, but to behave

mre and get out of control, you see, that is the

point of discrimination right there, where things get

out of control. We no longer — that is another matter,

you see,

Q Well, perhaps that is what I should have talked

about then.

A (¢ Ika.

=

aie

Q Would the males be more impulsive?

A Not necessarily. You see, here, we all carry a

lot of emotional conflict within us that differs consider-

ably at different points in time and circumstance.

Now, when a person takes in alcohol and is in the

state of considerable emotional tension, the probability

of losing control is much greater. I don't think that

males are uniquely afflicted in this respect.

Well, I am not a psychiatrist, Doctor, and I

am having a little difficulty. I am just a lay person. You

made the statement initially that males were more

aggressive than females.

Now, how does that tie into your statement which

you have just made there, of, can you define what we

are talking about, aggression?

[76] A Okay.

Q_ As it would relate to drinking, if at all?

A Well, I tell you in my own notes, I do not

prefer to use the word ° ‘aggression. I prefer rather to

talk about activity or drive behavior.

QI beg your pardon?

A Activity or drive behavior, because if we can

contrast males and females — let's go to the playground

situation. Looking at children in kindergarten or shortly

after kindergarten, we see different, definite differences

in the play characteristics of males and females.

Q Well —

A Now the males are labeled as being more ag-

gressive. The males are labeled to be more aggressive.

They re rougher, more body contact, more action within

any particular space.

Q And this continues throughout their lives?

A Yes, sir.

Q Through the vears 18 through 21?

A Uh-huh. Males have more muscles to put to

work and they put them to work.

_— on

Q Is this an environmental function of one’s char-

acter? Is it innate?

A I think it is basically biological. Dr. Carlotti,

University of Wisconsin, in the Institute for Primate

Studies, [77] has made the same observations with

Rhesus monkies, just observing their normal development.

Q So, this characteristic is not derived from one’s

environment or culture. It is innate?

A For the most part, I think a certain amount can

be taught, but I think most of it is essentially biological.

Q And that is this aggressive attitude or increased

activity or however you want to characterize it?

A_ Greater activity behavior.

Q And it continues throughout the life of the

male?

A Throughout the lives, I think it has a tendency

to slow down, perhaps in the fifth decade.

Q Excuse me?

A I think it would tend to slow down in the fifth

decade.

Q Would it be more acute if at all during the

ages of 18 through 21?

A No.

Q When does this aggression or when does it rise

and when does it fall?

A Oh, dear, that would be a curve of my own

creation.

Q_ Well, I welcome your opinion.

[78] A Okay.

Q Would it be on the upslope or the downslope

during the age 18 through 21? That is obviously what

I am interested in.

A Yes. Well, in the first place, I see it as being

more in a level phase, with the greatest period of

activity being in earlier childhood, activity differential

vm

GT ee ee

between male and female being in earlier childhood.

Q So, we have got the curve rising and it is

leveling?

A Yes, I kind of see it leveling out at 13, 14,

15, maybe.

Q Would it be at its high point — would it ever

go any higher in subsequent years, generally speaking?

I realize that there are —

A I don't believe so, no, sir.

Q That is all I have, thank you very much.

REDIRECT EXAMINATION

BY MR. GILBERT:

Q Dr. Ruffin, I believe there was opposing counsel,

asked you if you were aware of a lay opinion that

males mature later than females. You said you were

familiar that there was such a lay opinion.

A Oh, yes.

Q Doctor, have you ever heard or do you know,

is [79] there a lay opinion that Negroes are inferior

to Caucasians?

MR. MOORE: I object, Your Honor. That has no

relevancy to the issues in this case.

JUDGE HOLLOWAY: Objection sustained.

MR. GILBERT: Your Honor, I would propose that

the relevancy would — well, very well.

JUDGE HOLLOWAY: I think that is far afield of

what our inquiry is today. We are all agreed.

BY MR. GILBERT:

Q Doctor, are you familiar whether or not there

is a lay opinion that some racial groups have a greater

alcohol problem than other racial groups?

MR. MOORE: Your Honor, I object. I have heard

this line of argument. We are not dealing with classifi-

cations based upon race. If we were, I would concede

—~

error. I assure you I object to the question.

JUDGE HOLLOWAY: Objection is sustained.

MR. GILBERT: All right.

Q Now, Doctor, I heard on cross examination some

talk about aggressiveness. Opposing counsel was, I believe,

was trying to get you to answer that males were more

aggressive than females and I believe you-answered that

they were more active than females.

A I prefer that as my point of departure, yes.

QI am sorry?

[80] A_ I prefer that as my point of departure, yes.

Q All right. Let me ask you this. Assuming that

the word “‘aggressiveness’’ or activity, whatever we want

to call it, has some meaning, is this a characteristic

which is exhibited by 100 percent of all males?

A We are talking about aggressiveness as it be-

comes impulsiveness and hostility.

Q Well, let's say aggressiveness to an extent of

being a social problem?

A_ No, it wouldn't be.

Q Could you give an estimate, based upon your

experience or knowledge or opinion as to what per-

centage of males have an aggressiveness problem, let's

call it?

A Well, you know, two perspectives. First there

is the clinical perspective and here I only know what

comes to my attention. But among the people who I see

in the clinical situation, we can say there is a consid-

erable problem with aggressiveness and its management.

Although most of it even under those circumstances,

are pretty well disciplined. If I were a consultant, say,

to McAlester,'? which I am not, I would see a much

greater problem to consider.

'3The site of the Oklahoma State Penitentiary.

— 98 —

ee ad

As I look up and down the street, and consider

the world I live in, outside of the office, it seems to

me that the vast, vast, vast majority of males do a very

decent [81] job of managing their excessive, what

might be, their tendency toward excessive, aggressive

behavior, if you like, hostile behavior. Do a very nice

job of that.

Q Could you give us any kind of percentage esti-

mate as to taking the population as a whole?

What percentage of the male population has an

aggressiveness problem?

A That would be the range, I say, of guesses,

but I would be thinking in terms of less than 5 percent

or less than 3 percent.

Now, do females ever display an aggressiveness

problem?

A Oh, yes, yes.

Q Could you give us an estimate as to what per-

centage a female might display in aggressiveness prob-

lems?

A I put it in the same percentage range, but here

we are talking about such a tiny percentage. It, I think

what I am struggling with here is again, I am a peculiar

sample of my own clinical experience. I have recently,

in the last couple of years, seen an extraordinary number

of very hostile women and that is just a sample of my

own clinical experience.

Q Could you give us an estimate of males and

females having an aggressiveness problem within the 15

to 20 or 18 through 20 years old age category?

[82] A From my own clinical perspective, I really

don't find any difference between them.

Q All right, let me ask this, Doctor. I am going

to ask the question, if it has no meaning, just say so.

A Okay.

Q Could you give us an estimate, percentagewise,

as to how much more aggressive the average male is

beyond the average female?

MR. MOORE: Your Honor, I don't really — well,

if he — the question is so speculative. I wish counsel

would at least lay a little better predicate for it. It is

just beyond me, perhaps he can help me.

A Well, of course, it is beyond me, too.

BY MR. GILBERT:

Q Well, do I understand that that question has

no real meaning then?

A No, I can't respond to that.

Q Well, let's raise it with the terminology you

want and use it and if it still doesn’t have any meaning,

say so. Could you give us an estimate of how, in

percentagewise, how much more active the “average

male’ is over and above the “average female’’?

A I am impressed with the leveling off, as I

suggested before, of, you know, this more active behavior,

[83] this need for activity as one moves later into

adolescence, it seems to level off.

Q Okay. Now, let me ask a couple of other per-

centate questions, if you know.

With reference to — well, I will ask both the popu-

lation as a whole and then with reference to the 18 to

21 years of age.

What percentage of males, and then females, have

what you would call an alcohol problem to such an

extent that they present some danger, if they have access

to alcohol?

A I really don't know. I am impressed, though

that, if I understand alcohol, and this I know largely

through other people's work, in latent age, in both males

and females, but I have no way of responding to a

percentage question.

= 16) ..

Q Let me ask you this. Would it, say, over 51

percent of it —

A No, no, we are talking about a very, very tiny

percentage of the population. Again, I would say —

JUDGE HOLLOWAY: Just a minute, just a minute,

Doctor.

Do you have an objection?

MR. MOORE: I am sorry, I don't like to object,

but I must. He has indicated, I believe, that he is

testifving [84] on the basis of other people's work.

His own opinion is just fine. Based upon his clinical

experience. I have absolutely no objection to that, but I

do object to him giving opinions or any kind of evidence

from the work of other people.

JUDGE HOLLOWAY: It is — all right, the question

will be, the objection will be overruled. If the witness

has his own opinion on the matter, he may answer the

question.

BY MR. GILBERT:

Q Do you have an opinion?

JUDGE HOLLOWAY: Let him answer the question

now.

The question has been put. Don’t put another ques-

tion and we will have another objection. You have got

the question.

BY MR. GILBERT:

Q You have heard the question as it was read by

the Reporter.

A Okay. My first estimate would be certainly less

than 5 percent and I would think, we are talking about

maybe one or two percent of the population.

Now, is there a different percent«ge, Doctor,

for male and female?

A None that I can define.

Q All right. Okay, now, I just have one other

— 101 —

[85] question, Doctor.

I notice that, I meant to ask this on direct. Do

you have some books or volumes present at the witness

stand with you?

A Yes, I have them.

Q You identified the two-volume work.

You have another book there, would you identify

that book.

A Oh, this was a study. This book here, this was

a study done by the, under the auspices of Medical

Research Council, which is a special agency of Govern-

ment in England and it is the effect of small dosages

of alcohol on a skill resembling driving. That is done in

1959.

It was done in, typically, the w ay the English do it,

and there is one reference here to sex differences.

MR. MOORE: Excuse me, may I object at this

point? I don't know that this is competent for testimony.

However, the basis for my objection is, it is outside the

scope of my cross examination. Even on a more practical

grounds, this is material which I have never heard of

and have not had a chance to examine. As counsel has

had a chance to examine my material. So, I object on

those three bases.

JUDGE HOLLOWAY: Well, the witness has al-

ready given a general statement without revealing any

of the tenor [86] of the document. So, I don’t think

there is any grounds for an objection at this time. It

will be overruled.

If we get an offer of the exhibit, or an offer of the

substance of what it is, or what is in it, then you may

object to it.

BY MR. GILBERT:

Q Dr. Ruffin, in those works that you have, could

— 102 —

you identify the pages of relevance to this sexual dif-

ferentiation?

A Yes. Page 55 provides a summary statement.

Is that in the British work?

A Yes, sir, that is what I am talking about. And

on Page 16 there is a reference of the alcohol doses

that were administered in the experiment.

Q All right. Now, are, in the two-volume book that

you referred to earlier, are there any pages of relevance

that you feel —

A Nothing.

Q Your Honor, subject to objection and subject to

withdrawing the exhibit later, since it is a library book,

I would offer Page 55 of the British work that the

witness has referred to.

MR. MOORE: Please note my objection on the —

same grounds that I have previously stated.

JUDGE HOLLOWAY: Let's get the objection on

the [87] record because I am not clear on it.

The Court doesn’t know just what you're objecting

to. There has been an offer of Page 55 of this British

work on alcohol studies.

MR. MOORE: May I see that.

Well, Your Honor, the basis of my objection was,

it was certainly outside the sc of direct and cross

examination and also we have a study from Britain

which is several years ago, oh, over ten years, about

fifteen years ago, and I was not provided a copy or given

the reference to this book so that I could study, prior

to coming here today, this morning, so that I could

cover an intelligent cross examination. I object on those

three grounds.

JUDGE HOLLOWAY: The objection is sustained.

The Court feels that the objection questioning the denial

of the right to cross examine the proponent of the

.

exhibit really raises the hearsay objection which is here

good; and also that the witness is offering the testimony

of another party and therefore the objection is sustained.

MR. GILBERT: Let me just ask one final question.

Q Doctor, is your opinion the same as reflected

in the British study?

A Yes.

Q All right. I have no further redirect examination,

Your Honor.

[88] BY JUDGE HOLLOWAY:

Q Dr. Ruffin, let me ask you one thing, please.

Where I am confused, in your direct testimony, you

related having seen several hundred cases of what the

Court would recognize as alcoholic persons; is that

correct, in your clinical studies?

A_ No, sir.

My response to several hundred was that in terms

of, or a couple of hundred, at least, would be of young

people. Wasn't that the question?

Q Of young people?

A Yes.

Q Very well. Did you make — I may have my

notes in error. I thought you testified that there were

more males than females in your opinion, from your

clinical studies, that were in the group of alcohol users?

A_ Yes, yes, sir.

Q Is that true with reference to the 18 to 21 age

group?

A It would be, really — Your Honor, it is true

all the way through, beginning, 3, 4, 5 years of age,

but I see many more men, or many more males than

females.

A That have the difficulty that you — |

A Some species of difficulty, some kind of diffi-

culty that brings them to the attention of the — that

— 104 —

[89] is generally true in the psychiatric channels that

we follow. In the guidance centers where we consult

them, we see as many as — let's see, I think the pre-

ponderance of males over females would be anywhere

from three or four up to seven to six, to seven to one

and we are talking about children of all ages. So, this

is normal statistically.

Q That three or four, up to six or seven to one

as a radio of problem of males over females?

A Right.

Q With alcohol abuse? .

A No, no, I am only talking about total referrals

now,

Q Total referrals?

A Total referrals.

Q Well, I was referring to your testimony that I

thought I understood that you saw more males than

females having difficulty with alcohol abuse.

A Yes, sir. That is generally true. And again that

is true all through life.

Q In the 18 to 21 and all age groups? :

A 18 to 21 sample is a very small sample of the,

tiny sample of the total use of people using alcohol.

Q Well, from your own clinical studies of your

own patients, is that observation true that there are more

male than female patients having difficulty with alcohol

at [90] the ages of 18 to 21 in that small group?

A You can tell from how I am responding to this,

I really can’t say with confidence, yes. If so, it is not

part of my experience, not with conviction, no, sir.

Very well, thank you.

Anything further of this witness?

MR. GILBERT: Your Honor, I think I have gotten

confused on one point. If I could clarify it.

JUDGE HOLLOWAY: You may examine further.

— 105 —

REDIRECT EXAMINATION

BY MR. GILBERT:

Q Doctor, I believe you, pursuant to His Honors

question, you said you see about, well, considerably

more males with alcohol problems than females.

A Overall, yes, sir.

Q Now, do I understand that you're saying that

there are more men with alcohol problems or do you

just see more mer with alcohol problems?

A Well, if what I see, you know, is what I see,

and I don’t know about the validity of the sample, but,

yes, I think it is. There is no question about it. It is

generally accepted that males are much more grievious,

much more serious alcohol abusers. But that is generally,

that becomes evident in the 4th and 5th decades. Alco-

holics are not usually defined as alcoholics, as problem

drinkers, [91] until the 4th or 5th decade. Almost

without exceptions, people I have seen in my office are

in that group and yet I have practiced, at one time,

I will be working with someone seven years old and

someone seventy years old, but among alcohol abusers,

defined as such, they are almost without exception,

defined within the 4th and 5th decades.

Q Well, do I understand from that —

A Between thirty and fifty years of age.

Q That among males you have fewer alcohol prob-

lems in the 18 through 20) age group than you do in

later life?

A Yes. You just don't see them defined as alcohol

problems.

Q I see. Very well, thank you.

JUDGE HOLLOWAY: Anything further of the wit-

ness?

MR. MOORE: No, Your Honor.

JUDGE HOLLOWAY: May he be excused?

— 106 —

Just a minute.

BY JUDGE DAUGHERTY:

You re a biologist, are you?

Well, sir, as much as a physician is — yes.

Well, what is the science of biology?

Particularly —

As it relates to this case.

Sir?

As it relates to this case. Where we are talking

[92] about men and women. Can you just tell me

generally what is explained within biology?

A Well, biology is the study of living systems.

Q All right.

A Living systems, yes.

Q All right. And there is a difference in the living

system of a man and a woman, I take it?

A Some differences, yes, sir.

Q Now, is there any difference between the two

when it comes to them consuming beer, with particular

reference to the 18 to 21 year bracket?

A The. only difference that I would see — well,

it is — let's just start it from, a strictly biological di-

mension to a social dimension —

Q Why don't you just keep it on a_ biological

basis?

A All right. To stay within the biological dimen-

sion, we see that women have less body water in which

a specific dose of beer might be diluted, so they would

tend to have a higher blood level of alcohol in response

to a specific dose. That is one thing.

Then, we have a different thing. This is, you know,

this is a well-established difference. A difference then in

so-called fluid compartments of males and females.

Secondly, there are these — let me say one other

[93] thing. It appears there is no difference in the rates

DrFODO 0

— 107 —

at which alcohol is metabolized to males and females.

The efficiency't of metabolism is the same. All right.

Now, I do think that there are some so-called inter-

actional defects between the, I will put it this way,

there is some kind of interactional effects between

alcohol and the physiological state that exists in the

premenstrual woman.

I think these are beginning to be defined.

Now, those would be my responses to strictly bio-

logical questions.

Q Is there any biological reason why a female

should be exposed to beer at 18 and a male not exposed

to beer until 21?

A No, sir, none that I can define.

Q Do you have any explanation as to why statis-

tics show!® that males have more alcoholic criminal ar-

rests than women?

A Overall?

Q Yes, during this age.

A Well —

Q Has it got any biological reason?

A What things are happening, first, let me say,

I am not impressed that these statistics show that. That

is my own personal response to their cursory review.

[94] Now, talking about overall criminal review —

Q No, I didn’t talk about overall. I am limiting it

to the drinking offenses.

Now, is there any reason why, when you take one

of these age brackets and compare men and women that

you have 10 times as many men having a drinking

criminal result than you have for a woman. I want to

know if there is any biological reason for it?

A I know of no biological reason.

'*Deficiency” appears in the original.

“Know” appears in the original.

— 108 —

Q Do you have any idea what the reason is?

A I think it more ‘socially determined and I think

it is socially determined right on through life. I don't

really think it is peculiar to this period and at least

at, as I scrutinize these statistics, it is a consistent

finding through life.

In other words, that males do tend to use alcohol

more readily and more readily to the point of it being

identifiable abuse. But, not just in the 18 to 21 year

period.

Now, there is no question about the difficulties, the

disparities, it runs 10 to 1. A very consistent thing here.

Well, do you see any rational basis then why

the legislature should say, men, you can t get beer until

you re 21; women, you can get it at 15.

[95] A No, sir, I find no rational basis for that.

Q You think both of them should get it at the

same age?

A Yes.

Q Okay.

BY JUDGE HOLLOWAY:

Q Psychologically, would your answers be the

same in the difference between men and women?

Judge Daugherty has been speaking biologically.

A Yes, ves, I understand what you mean.

As a public health practitioner, a person with that

kind of orientation, also as a citizen who is not interested

in being killed prematurely by a misbehaving alcohol

abusing driver, I would love to see alcohol totally

excluded and I suppose if we are going to discriminate,

we would totally exclude it from males and if we are

going to discriminate within women we would totally

exclude it from women within the last one-fourth of their

menstrual cycle.

— 109 —

JUDGE DAUGHERTY: We tried that and it didn't

seem to work.

A I know.

JUDGE DAUGHERTY: So, why don't you answer

the Judge's question about whether there is a psycho-

logical difference.

[96] A_ Sir, I misunderstood you.

Didn't I answer it?

JUDGE HOLLOWAY: No, I don't think you did.

You got off on the prohibition talk which I didn't

think was relevant to the question.

A But, I am saying, if we are talking about using

psychological differences, I am talking about the inter-

action between, you know, this activity factor which is

characteristic, you know, characteristics normal in males

and also what is, you know, a culture characteristic

of our society, when males learn to use alcohol. We don't

see this in other societies. We don't see this kind of

alcohol abusing behavior.

Apparently in the Israeli or Italian —

Dr. Ruffin, what I meant to ask you simply,

was this in line with Judge Daugherty 's questions, psy-

chologically, do you see a rational basis for a difference

such as in this statute permitting the women at the age

of 18 to have beer and men not until 21? Psycholog-

ically, is there a rational basis for it?

A No, sir, I see no basis for it whatsoever.

BY JUDGE DAUGHERTY:

Q What about the fact that men are more active

and more, have more accidents, more driving alcohol

oriented accidents? Is that psychological?

[97] A In the broadest sense, ves, sir.

Q Why isn't there some rationale then to keep

beer away from people who are going to be more active

by drinking it and have more drinking offenses, both

— 110 —

pin hv as 5 2

a Te oa

oe

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driving and otherwise?

A Well, I did respond to that question, I thought,

when Judge Holloway spoke to me previously. That

became a lecture on prohibition.

Q Well, if you take an 18-year-old man and and

18-year-old woman and you give them both some beer

and the man is going to be more active with it, and

he is going to have more drinking offenses with it,

isnt’ there some rationale in saying, let's just wait about

three years before you get it, maybe things will even

up then?

A Yes, sir, but in the interest of public health, I

would like to see it wait some more.

Q But that is up to the Legislature. They have

decided this 18 to 21 bit. It has been attacked as having

absolutely no rationale whatsoever.

A Well, it, all right, it is a bit of legislation in

the interest of controlling a tiny part of the problem.

You know, I can see that.

Q Does it have the effect of controlling a tiny

part of the problem?

A_ I really don’t know how effective it is. I don’t

[98] know that.

Q Well, does it have a tendency to have an effect?

A Hopetully it would. 1 don’t know though.

Q. All right.

JUDGE HOLLOWAY: Anything further of Dr.

Ruffin?

MR. MOORE: No, Your Honor.

JUDGE HOLLOWAY: May he be excused?

MR. MOORE: Yes, Your Honor, he may.

JUDGE HOLLOWAY: Thank you, Dr. Ruffin, you

may be excused.

MR. MOORE: Your Honor, may I impose on the

Court for a three-minute recess?

—lll—

JUDGE HOLLOWAY: We are going to consider

that problem right now, if you will wait just a minute,

Mr. Moore.

How long approximately do you think the testimony

from the next witness may be?

MR. GILBERT: Your Honor, I don’t think his

testimony, unless he expresses a disagreement, would be

more than 10 minutes.

JUDGE HOLLOWAY: Your direct examination?

MR. GILBERT: Yes, sir.

JUDGE HOLLOWAY: We will be in recess for

ten minutes.

(Thereupon, a brief recess was had pursuant to

[99] which the following proceedings were had in open

court with all appearances the same as before the recess.)

JUDGE HOLLOWAY: Call your next witness.

MR. GILBERT: Your Honor, the Plaintiffs would

next call Mr. Ben Jones.

JUDGE HOLLOWAY: Very well.

DR. BEN JONES,

having first been duly sworn upon his oath, took the

witness stand and testified as follows, to-wit:

PIRECT EXAMINATION

BY MR. GILBERT:

Q Would you state your name and address, please

sir.

Ben Jones, 7414 Lyrewood Lane.

What is your business or trade or profession?

I am a research psychologist.

And by whom are you employed?

University of Oklahoma, Health Science Center.

Orroroo

Oklahoma Medical School?

—112—

All right. Is that a part of the University of

Te ee ene

A Yes, sir, it is.

Q All right. What do you actually do there, sir?

A lama, I am Assistant Professor of Psychology,

Department of Psychiatry there, and I am at the Center

for [100] Alcohol Related Studies on 15th and Lin-

coln, which is a division of the Department of Psychiatry.

JUDGE EUBANKS: Speak louder, please.

A All right, I am sorry.

I am Assistant Professor in the Department of

Psychiatry at the Medical Center and carry on research

for the Genter of Alcohol Related Studies at 15th and

North Lincoln, which is within the De ‘partment of Psy-

chiatry and research projects on, going on there, that

are concerned with mainly the behavioral eflects of

alcohol on humans.

BY MR. GILBERT:

Q Would you state to the Court your professional

and academic degrees of qualifications.

A I have received a BS from Oklahoma State

Unive ‘rsity in 1965. A Ph.D. from the University of Okla-

homa in 1972.

Q What is your degrees?

A They're both in psychology.

Q All right. Is your Ph.D. in any particular area

of psychology?

A Yes, it is called Biological Psychology.

Q All right. And are you the same Ben Jones

whose study was referred to in this case?

Q Yes, sir, I am.

Q All right. May it please the Court, subject to

[101] cross voir dire, I would ask to have this witness

qualified as an expert, biological psychology.

JUDGE HOLLOWAY: Is there any examination you

wish to make or do you have a statement about the

qualifications of the witness, Mr. Moore?

— 113—

MR. MOORE: No, Your Honor.

JUDGE HOLLOWAY: No objections?

MR. MOORE: No.

JUDGE HOLLOWAY: You admit the qualifica-

tions?

MR. MOORE: Yes, Your Honor, I do.

JUDGE HOLLOWAY: Very well.

BY MR. GILBERT:

Now, Dr. Jones, have you had an occasi

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