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.
a ee
a
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4
a
[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.
=
eee: mcmama.
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 —
<td ee OR ini’
meee BIN, | oe.
enews
Ee
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
Gh Nand ER aE LPR 4 eis
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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