Opposition — Gibson Products, Inc. v. Texas

Supreme Court, U.S,

‘+ ILED

MAY 13 1977

f

IN THE | ICHAEL RODAK, JR, CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1976

* * *

NO. 76-1430

x * *

GIBSON PRODUCTS, INC., OF RICHARDSON,

Petitioner

V.

THE STATE OF TEXAS,

Respondent

x* * *

ANSWER TO PETITION FOR A WRIT

OF CERTIORARI

* * *

JOHN L. HILL

Attorney General of Texas

HENRY WADE DAVID M. KENDALL

Criminal District Attorney First Assistant Attorney General

Dallas County, Texas

JOHN H. HAGLER Attorneys For The State Of Texas

Assistant District Attorney o

Dallas County, Texas P.O. Box 12548, Capitol Station

Austin, Texas 78711

OF COUNSEL

May, 1977

TABLE OF CONTENTS

Page

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CERTIFICATE OF SERVICE .............cccccccccccccees 12

APPENDIX A:

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TABLE OF AUTHORITIES

CASES: Page

City af New Orleans v. Dukes,

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Dandrige v. Williams,

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Gibson Products Company, Inc. v. State,

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McGowan v. State of Maryland,

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McLaughlin v. State of Florida,

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Two Guys from Harrison-Allentown, Inc. v. McGinley,

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STATUTES:

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V.T.C.S. art. 9001 ........... Saleccineteaabtelcinletideticinciieitbiatatadeimicindt uessiatiied 2,5,10

(former art. 286a, Penal Code)

RULES:

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NO. 76-1430

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

* * *

GIBSON PRODUCTS, INC. OF RICHARDSON,

Petitioner

V.

THE STATE OF TEXAS,

Respondent

. * 7

ANSWER TO PETITION FOR A WRIT

OF CERTIORARI

Respondent The State of Texas respectfully prays

that the Writ of Certiorari be in all things denied and for

grounds would respectfully show:

JURISDICTION

Generally, this Court has jurisdiction under Title

28 U.S.C. §1257(3) in that the validity of a statute of the

State of Texas is drawn in question on the ground of its

being repugnant to the Constitution of the United

States. However, as the argument contained in this brief

will show, Petitioner has not brought this case within

the criteria of Rule 19(a) of this Court’s rules for the

consideration of an Application for a Writ of Certiorari.

The very question here submitted has been previously

determined by this Court in McGowan v. State of

Maryland, 366 U.S. 420 (1961) and Two Guys from

Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582

(1961).

-2-

QUESTION PRESENTED

The only question presented by this record is whether

an economic regulation of the State of Texas that certain

commodities may not be sold on both Saturday and

Sunday is so far outside that wide latitude accorded

states in the regulation of their local economies under

their police powers that this Court should substitute its

judgment for that of the Texas Legislature and declare

the statute to have no rati al basis.

STATUTES INVOLVED

In its revision of the state’s penal code, the Legislature

of Texas removed what was Article 286a and

transferred it to the civil statutes where it now appears

as Article 9001 (Acts 1973, 63rd Legislature, Ch. 399,

p. 883, §5) and provides:

Art. 9001. Sale of goods on both the two consecutive

days of Saturday and Sunday

Prohibition of sales; items; misdemeanor

Section 1. Any person,.on both the two (2)

consecutive days of Saturday and Sunday, who

sells or offers for sale or shall compel, force or

oblige his employees to sell any clothing;

. clothing accessories; wearing apparel;

footwear; headwear; home, business, office or

outdoor furniture; kitchenware, kitchen

utensils, china, home appliances; stoves;

refrigerators; air conditioners; electric fans;

radios; television sets; washing machines;

driers; cameras; hardware; tools, excluding

non-power driven hand tools; jewelry; precious

or semi-precious stones; silverware; watches;

clocks; luggage; motor vehicles; musical

instruments; recordings; toys, excluding items

-3-

customarily sold as novelties and souvenirs;

mattresses; bed coverings; household linens;

floor coverings; lamps; draperies; blinds;

curtains; mirrors; lawn mowers or civtli piece

goods shall be guilty of a misdemeanor. Each

separate sale shall constitute a separate

offense.

Sales for charitable and funeral! or burial

purposes; real preperty sales

Sec. 2. Nothing herein shall apply to any

sale or sales for charitable purposes or to items

used for funeral or burial] purposes or to items

sold as a part of or in conjunction with the sale

of real property.

First offense; subsequent convictions;

penalties

Sec. 3. For the first offense under this Act,

the punishment shall be by fine of not more

than One Hundred Dollars ($100.00). If it is

shown upon the trial of a case involving a

violation of this Act that defendant has been

once before convicted of the same offense, he

shall on his second conviction and on all

subsequent convictions be punished by

imprisonment in jail not exceeding six (6)

months or by a fine of not more than Five

Hundred Dollars ($500.00), or both.

Purpose; public nuisances; injunction;

application and proceedings

Sec. 4. The purpose of this Act deing to pro-

mote the health, recreation and welfare of the

people of this state, the operation of any busi-

ness whether by any individual, partnership

-4-

or corporation contrary to the provisions of this

Act is declared to be a public nuisance and any

person may apply to any court of competent

jurisdiction for and may obtain an injunction

restraining such violation of this Act. Such

proceedings shall be guided by the rules of

other injunction proceedings.

Emergency purchases; certification

Sec. 4a. Repealed by Acts 1967, 60th Leg., p.

79, ch. 39 §1, eff. Aug. 28, 1967.

_ Occasional sales

Sec. 5 Occasional sales of any item named

herein by a person not engaged in the business

of selling such items shall be exempt from this

Act.

Legislative intent

Sec. 5a. It is the intent of the Legislature

that Articles 286 and 287 of the Penal Code of

Texas! are not to be considered as repealed by

this Act; provided, however, that the provisions

of said Articles shall not apply to sales of items

listed in Section 1 of this Act which are

forbidden to be sold on the day or days named in

this Act. 7

STATEMENT OF THE CASE

-5-

declarative. It does, however, contain the essential facts

which are that on December 24, 1975, following a

hearing, a state district court enjoined Petitioner from

further violations of Article 9001, Vernon’s Texas Civil

Statutes, by continuing to offer for sale, selling, or

compelling, forcing or obligating their employees to sell

on the two consecutive days of Saturday and Sunday a

list of items taken from Section 1 of Article 9001.

Petitioner teok a direct appeal to the Supreme Court of

Texas, by-passing Texas’ intermediate appellate court,

by virtue of Rule 499a, Texas Rules of Civil Procedure

(Appendix A). By virtue of that rule, such an appeal

could present only the constitutionality or

umcenstitutionality of a statute of the State or the

validity or invalidity of an administrative order issued

by a state board or commission wnder a state statute

when that question arose by reason of a trial court

granting or denying an injunction.

In an opinion which Petitioner criticizes for its

brevity (Petitien, page 5) the Texas Supreme Court on

December 22, 1976 affirmed the judgment of the

district court and upheld the constitutionality of the

statute. Gibson Products Company, Inc. v. State, 545

S.W.2d 128 (Tex. Sup. 1976)

The Texas Supreme Court based its decision in large

part upon 2 iong line of prior decisions upholding the

constitutionality of the predecessor to Article 9001,

stating:

“ _. . it hasoften been upheld as constitutional

Respondent cannot agree to the “statement of

materiai facts” found in the Petition for Writ of

Certiorari for it is more argumentative than it is

‘Now repealed by Acts 1973, 63rd Leg., p. 991, ch. 399 §3 (a),

enacting the new Texas Penal Code.

against the same equal protection and due

process arguments as are repeated here. State

v. Spartan’s Industries, Inc., 447 S.W.2d 407

(Tex. 1969), dism’d for want of a substantial

federal question 397 U.S. 590, 90 S.Ct. 1359, 25

L.Ed.2d 596; Ralph Williams Gulfgate

6-

Chrysler Plymouth, Inc. v. State, 466 S.W.2d

639 (Tex.Civ.App. 1971, writ refd n.r.e.);

Sundaco, Ine. v. State, 463 S.W.2d 528

(Tex.Civ.App. 197C writ refd n.r.e.); Levitz

Furniture Co. v. State, 450 S.W.2d 96

(Tex.Civ.App. 1969, writ refd n.r.e.).” (545

S.W.2d at 129)

The Supreme Court of Texas denied rehearing on

January 19, 1977 and, within ninety days from that date,

this Petition for Writ of Certiorari was filed.

ARGUMENT

In stating the question presented, Petitioner specifies

four constitutional violations:

(1) violation of the right of a member of the

consuming public to shop and buy at will “guaranteed

by the due process clause.”

(2) arbitrary deprivation of the right of a

merchant to pursue his occupation by depriving him of

the right to sell certain merchandise on any day when it

is legal for him to have his place of business open,

guaranteed by the due process clause.

(3) arbitrary discrimination against sellers of

tangible products in favor of sellers of services,

prohibited by the equal protection clause.

(4) arbitrary discrimination against sellers of

certain commodities (socks) in favor of sellers of other

commodities (cigarettes, liquor) prohibited by the equal

protection clause.

As to the first of these, the issue of the right of a

member of the consuming public was not before the

court below and is not properly before this Court.

Petitioner is not a consumer.

=

~S

Tw

Me

In MeGowan v. State of Maryland, 366 U.S. 420(1961),

Mr. Chief Justice Warren stated the questions

presented to include “ . . . whether the classifications

within the statutes bring about a denial of equal

protection of the law . . . ” (366 U.S. at 422) There the

statute prohibited the sale of socks, while permitting the

sale of cigarettes, confectioneries, milk, bread, etc. The

court found the statute constitutional saying:

“The standards under which this proposition

is to be evaluated have been set forth many

times by this Court. Although no precise

formula has been developed, the Court has held

that the Fourteenth Amendment permits the

States a wide scope of discretion in enacting

laws which affect some groups of citizens

differently than others. The constitutional

safeguard is offended only if the classification

rests on grounds wholly irrelevant to the

achievement of the State’s objective. State

legislatures are presumed to have acted within

their constitutional power despite the fact that,

in practice, their laws result in some inequality.

A statutory discrimination will not be set aside

if any state of facts reasonably may be

conceived to justify it. (Citations omitted)

“It would seem that a legislature could

reasonably find that the Sunday sale of the

exempted commodities was necessary either

for the health of the populace or for the

enhancement of the recreational] atmosphere of

the day - that a family which takes a Sunday

ride into the country will need gasoline for the

automobile and may find pleasant a soft drink

or fresh fruit; that those who go to the beach

may wish ice cream or some other item

normally sold there; that some people will

-8-

prefer alcoholic beverages or games of chance

to add to their relaxation; that newspapers and

drug products should always be available to the

public.

“The record is barren of any indication that

this apparently reasonable basis does not exist,

that the staiutory distinctions are invidious,

that local tradition and custom might not

rationally call for this legislative treatment.

(Citations omitted)” (366 U.S. at 425-426)

The greatest latitude is given to the states in adopting

police regulations and establishing classifications upon

which they depend, so long as there is no suspect

classification as, for instance, race or religion. Thus, for

instance, in Dandrige v. Williams, 397 U.S. 471 (1970),

Mr. Justice Stewart, speaking for the majority of the

court, said:

“In the area of economics and social welfare,

a State does not violate the Equal Protection

Clause merely because its classifications made

by its laws are imperfect. If this classification

has some ‘reasonable basis’, it does not offend

the Constitution simply because the

classification ‘is not made with mathematical

nicety or because in practice it results in some

inequality .... ‘A statutory discrimination

will not be set aside if any state of fact

reasonably may be conceived to justify it.’

McGowan v. Maryland, . . . ”(397U.S. at 485)

Similarly, in McLaughlin v. State of Florida, 379 U.S.

184 (1964), Mr. Justice White, speaking for a unanimous

court, said:

. eee the widest discretion is allowed

the islative judgment in -determining

ee ne

-9-

whether to attack some, rather than all, of the

manifestations of the evil aimed at; and

normally that judgment is given the benefit of

every conceivable circumstance which might

suffice to characterize the classifications as

reasonable rather than arbitrary and

invidious .. . ” (379 U.S. at 191)

In City of New Orleans v. Dukes, __U.S.__, 96 S.Ct.

2513 (1976), the court, in a per curiam opinion

discussing the validity of the ordinance of the City of

New Orleans which discriminated between vendors

who had continually operated their businesses for eight

years and those who had not, said:

“When local economic regulation is

challenged solely as violating the Equal

Protection Clause, this Court consistently

defers to legislative determination as to the

desirability of particular statutory

discrimination. [Citations omitted] Unless a

classification trammels fundamental personal

rights or is drawn upon inherently suspected

distinctions such as race, religion, or alienage,

or decisions presume the constitutionality of

the statutory discriminations and require only

that the classification challenged be rationally

related to a legitimate state interest. States are

accorded wide latitude in the regulation of

their local economies under their police powers,

and rational distinctions may be made with

substantially less than mathematical

exactitude ... . In short, the judiciary may

not sit as a superlegislature to judge the

wisdom or desirability of legislative policy

determinations made in areas that neither

affect fundamental rights nor proceed along

suspect lines . . . in local economic fear, it

-10-

is only the invidious discrimination, the wholly

arbitrary act, which cannot stand consistently

with Fourteenth Amendment... . ”(96S.Ct.

at 2516-2517)

Numerous other cases might.be cited but certainly

this Court is familiar with the rules which it has applied

in the past and should apply here.

The stated purpose of the Legislature of Texas in

adopting Article 9001 and its predecessor is “to promote

the health, recreation, and welfare of the people of this

state.” While certainly Petitioner is entitled to believe

that there are better ways to serve that purpose than

that employed by Article 9001, it cannot be said that the

Texas scheme has no rational relationship to the

legitimate state purposes.

And, finally, it must be remembered that the Texas

statute does not discriminate between merchants. It

treats them identically. All merchants, for example, can

sell cigarettes or liquor. None can sell socks. No

merchant, therefore, is denied equal protection. He is

denied due process only if this court can say that

constitutionally the State is required to permit all

merchants of socks to sell their wares seven days a week.

CONCLUSION

In 1961 this Court thoroughly examined the validity

of state statutes limiting commercial activities on

Saturdays or Sundays. Those decisions have been

consistently followed and have established a body of law

upon which states have acted and relied. There is

nothing about Article 9001 of the Texas statutes which

would call for a different rule to be adopted at this time.

The statute is a reasonable attempt by the Texas

Legislature to curtail mercantile activity to such an

extent as to promote the health, recreation and welfare

it.

of the people of the State in g aeral and of those who are

employed in mercantile establishments in particular.

The State legislatively has stated that Petitioner’s

employees should not be required to work séven days a

week and that, to promote that end, Gibsons should not

sell unessential items on seven consecutive days. This is

a reasonable regulation having a relationship to the

purpose it serves and does not result in any invidious

classification. Certiorari should not be granted.

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

HENRY WADE DAVID M. KENDALL

Criminal District Attorney First Assistant Attorney General

Dallas County, Texas

JOHN H. HAGLER Attorneys For The State Of Texas

Assistant District Attorney

Dallas County, Texas P.O. Box 12548, Capitol Station

Austin, Texas 78711

-12-

CERTIFICATE OF SERVICE

M. Kendall, do hereby certify that on this 7 - {2

‘an my a otha 7, a true and correct copy of the above

Answer to * Pitition for a Writ of Certiorari was mailed to

Bardwell D. Odum, P.O. Box 38529, Dallas, Texas

75238 and Mr. Leo C. Michaud, 1266 E. Ledbetter,

Dallas, Texas 76216, Attorneys for Petitioner.

David M. Kendal!

ee me ee re ee ee S

SEE A eo

-13-

APPENDIX A

Rule 499a. Direct Appeals

In obedience to an act of the Regular Session of the

Forty-eighth Legislature approved February 16, 1943,

and entitled “An Act authorizing appeals in certain

cases direct from trial courts to the Supreme Court:

authorizing the Supreme Court to prescribe rules of

procedure for such appeals; and declaring an

emergency,” which act was passed by authority of an

amendment known as Section 3 b of Article 5 of the

Constitution, the following procedure is promulgated:

(a) In view of Section 3 of Article 5 of the Constitution

which confines the appellate jurisdiction of the

Supreme Court to questions of law only, this court under

the present and later amendment, above cited, and such

present and any future legislation under it, has and

will take appellate jurisdiction over questions of law

only, and in view of Sections 3, 6, 8 and 16 of such Article

5, will not take such jurisdiction from any court other

than a district or county court.

(b) An appeal to the Supreme Court directly from

such a trial court may present only the constitutionality

or unconstitutionality of a statute of this State, or the

validity or invalidity of an administrative order issued

by a state board or commission under a statute of this

Siate, when the same shall have arisen by reason of the

order of a trial court granting or denying an

interlocutory or permanent injunction.

(c) Such appeal shall be in lieu of an appeal to the

Court of Civil Appeals and shal! be upon such question

or questions of law only, and a statement of facts shall

not be brought up except to such extent as may be

-14-

necessary to show that the appellant has an interest in

the subject matter of the appeal and to show the proof

concerning the promulgation of any administrative

order that may be involved in the appeal. If the case

involves the determination of any contested issue of fact,

even though the contested evidence should be adduced

as to constitutionality or unconstitutionality of a statute,

or as to the validity or invalidity of an administrative

order, neither the statute or statutes, above mentioned,

nor these rules, apply, and such an appeal will be

dismissed.

(d) Except where they are inconsistent with this rule,

the rules now or hereafter prescribed in instances of

appeal to the Courts of Civil Appeals shall, in so far as

they are applicable, apply to appeals to the Supreme

Court pursuant to such amendment to the Constitution

and the legislation thereunder. Promulgated by order of

June 16, 1943, effective December 31, 1943.