brief for appellant — Rogers v. Friedman
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JUN 22 1978
——_—_—_—_———_ ree JR., CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1977
NO. 77-1164
DR. N. JAY ROGERS, O. D. and W. J. DICKINSON, Individually
and as President of the TEXAS SENIOR CITIZENS ASSOCIATION
PORT ARTHUR, TEXAS CHAPTER,
Appellants
v.
DR. E. RICHARD FRIEDMAN, O. D., DR. JOHN B. BOWEN,
O. D., DR. HUGH A. STICKSEL, JR., O. D., DR. JOHN W.
DAVIS, O. D., DR. SAL MORA, O. D., Individually and in their
official capacity as members of THE TEXAS OPTOMETRY BOARD:
J and THE TEXAS OPTOMETRIC ASSOCIATION, INC.,
Appellees
On Appeal from the United States District Court
for the Eastern District of Texas
(Three-Judge)
BRIEF FOR THE APPELLANTS IN NO. 77-1164
Of Counsel: ROBERT Q. KEITH
MEHAFFY, WEBER, KEITH BRIAN R. DAVIS
& GONSOULIN VICTOR J. ROGERS, II
Beaumont, Texas ARTHUR R. ALMQUIST
DE LEON & DAVIS Attorneys for Appeilants
Austin, Texas
VICTOR J. ROGERS, Ii
Houston, Texas
Counsel of Record:
ROBERT Q. KEITH
MEHAFFY, WEBER, KEITH
& GONSOULIN
1400 San Jacinto Building
Beaumont, Texas 77701
Alpha Law Briej Co., One Main Fiasa, No. 1 Main St., Houston, Texas 77002
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I,
If.
Ill.
A
The requirement that at least two-thirds of the Board
be members of TOA deprives Appellant of Four-
teenth Amendment Equal Protection ............
The purported “rational bases” for § 2.02 are refuted
by the evidence in the record ...................
The requirement that at least two-thirds of the Board
be members of TOA denies Appellant, Dr. N. Tay
Rogers, Fourteenth Amendment Due Process .....
A. Substantive Due Process ....................
B. Procedural Due Process .....................
. The requirement that at least two-thirds of the Board
be members of TOA infringes upon the Senior Cit-
izens’ First Amendment rights to receive valuable
commercial information ..................e.00-.
The requirement that “at all times at least two-
thirds” of the Board must be TOA members conflicts
with § 1 of the Sherman Antitrust Act and therefore
violates the Supremacy Clause of the United States
PEE Kevctertsdkecctbadbsieus aueeeds ada
RT ett SS Oe ar Se a
CITATIONS
CASES
Ashwander v. TVA, 297 U.S. 288 (1936) ..............
Bates
2691,
v. State Bar of Arizona, US. , 97 S.Ct.
$3 LEA24 $10 (1977) ........20.0.....0..-.
> wn NH =
12
13
13
20
27
27
30
49
52
58
II
CASES Page
Bishop v. Wood, 426 U.S. 341 (1976) .........-.4555. 44
Board of Regents v. Roth, 408 U.S. 564 (1972) ........ 44
Buckley v. Valeo, 424 U.S. 1 (1976) .......eeeeeeeeees 36
Cantor v. Detroit Edison Co., US. , 96 S.Ct.
3110, L.Ed.2d CEE 649 0teuseceeneeness 56
Carrington v. Rash, 380 U.S. 89 (1965) ...........005. 28
City of Eastlake v. Forrest City Enterprises, Inc.,
U.S. » BB GEL. SESE COGTE) acccceccccccsccccecs 36, 48
Cleveland Board of Education v. LaFleur, 414 U.S. 632
EEEEED | 66-600666000006600 0060000 cedpbepnncoesosees 28
Colorado Springs Amusements, Ltd. v. Rizzo, US.
, 96 S.Ct. 3228, L.Ed.2d CORPO) cocee 48
Cook v. Hudson, 511 F.2d 744 (Sth Cir. 1975), cert.
granted 424 U.S. 941, cert. dism’d as improvidently
es Gee Te. OGD GERUTD cccececsccoccccccecees 28
Edelman v. Jordan, 415 U.S. 651 (1974) .............. 48
Elfbrandt v. Russell, 384 U.S. 11 (1966) .............. 26
Elrod v. Burns, 427 U.S. 347 (1976) .............. 16,17, 19, 26
First National Bank of Boston v. Bellotti, USS. ‘
98 S.Ct. 1407, L.Ed.2d SED seseevecnse 35, 36
Fusari v. Steinberg, 419 U.S. 379 (1975) .............. 46, 47, 48
Gibson v. Berryhill, 411 U.S. 564 (1973) ..............
§0n00d00esbeneeesansebavessnbees 36, 37, 38, 40, 41, 43, 44, 46, 48
Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) .... 48,56
Hagans v. Levine, 415 U.S. 528 (1974) ................ 57
Hicks v. Miranda, 422 U.S. 332 (1975) ............... 44, 46
Hines v. Davidowitz, 312 U.S. 52 (1941) .............. 55
Hortonville Joint School District No. 1 v. Hortonville Ed-
ucation Ass’n, US. , 96 S.Ct. 2308, L.Ed.
2d DT 5266n05566004664)0 000600660000006008 42
Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S.
Tr Se vabtds sie wh6sbbosseededskbsdeevedsusaee 55
House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654 (Tex.
SEE. Midsin baines604056b 40000060004064656600600R8.0 44
ee OS Set, Be Ws BF GEUUED Kodccscéccsvccocescesce 57
In re Murchison, 349 U.S. 133 (1955) ..........00ceeee 42
In re Whittington, 391 U.S. 341 (1968) ............... 57
Keyishian v. Board of Regents, 385 U.S. 589 (1967)..15, 17, 26, 29
Kusper v. Pontikes, 414 U.S. 51 (1973) ...........-0055 17,19, 20
Marsh v. Alabama, 326 U.S. S01 (1947) ............... 48
McCulloch v. Maryland, 4 Wheat. 316, 17 U.S. 316 (1819) 55
McGowan v. Maryland, 366 U.S. 420 (1961) ........... TS
NAACP v. Alabama, 357 U.S. 449 (1958) ............. 28
National Society of Professional Engineers v. United States,
__US.__, 98 S.Ct. 1355, _ LdEd.2d_ (1978) 24, 53,54, 58, 59
III
CASES Page
New Orleans v. Dukes, 427 U.S. 297 (1976) ........... 21,27
North Dakota State Board of Pharmacy v. Snyder’s Drug
Stores, 414 U.S. 156 (1973) 0... cece ccc c ccc cece. 45, 46
Parker v. Brown, 317 U.S. 341 (1943) ................ 56
Patterson v. State of Alabama, 294 U.S. 600 i a 56
Perez v. Campbell, 402 U.S. 637 (1971) ............... 55
Pickering v. Board of Education, 391 U.S. 563 (1968).... 18, 19
Rosado v. Wyman, 397 U.S. 397 (1970) ............... 56
Steffel v. Thompson, 415 U.S. 452 (1974) .............. 38
Swift & Co. v. Wickham, 382 U.S. 111 (1965) ......... 56
Taylor v. Hayes, 418 U.S. 488 (1974) .............005. 42
Tumey vy. Ohio, 273 U.S. 510 (1927) ............0005.. 42,43
Turner v. Fouche, 396 U.S. 346 (1970) .........0..005. 15,17
United Mine Workers vy. Illinois State Bar Association, 389
Tk Pe rone rrr nee 51
United States v. Shotwell Manufacturing Co., 355 U.S. 233
Reenter penis 56
United States Department of Agriculture v. Murry, 413 U.S.
oo es eT eT PUTS ae 28
Virginia State Board of Pharmacy v. Virginia Citizen’s Con-
sumer Council, Inc., 425 U.S. 748 (1976) ......... 36, 46, 50, 55
Viandix v. Kline, 412 U.S. 441 (1973) ................ 28
U.S. 888 (1974) ....... 36, 37, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48
Ward v. Villiage of Monroeville, 408 U.S. 57 Ses 666% 43
Wieman v. Updegraff, 344 U.S. 190 DD técsesdecuce 26
Williams v. Rhodes, 393 U.S. 23 (1968) ............ 14, 16, 17, 21
Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955) 45,46
Withrow v. Larkin, 421 U.S. 35 (1975) ................ 42
Youakim v. Miller, 425 U.S. 231 (1976) ............... 57
UNITED STATES CONSTITUTION
I ical aide ele pee 52, 53
First Amendment ....3, 11, 12, 15, 19, 20, 27, 37, 46, 49, 51, 52, 54, $8
Fourteenth Amendment .... . 3, 11, 13, 14, 15, 19, 20, 27, 28, 29, 34, 58
UNITED STATES STATUTES
dE ee ees 24, 52, 53
Sn a es ce oe 2
Se Se GE cb Kb eecavecdisbeviddcodilice. 56
IV
Page
REVISED CIVIL STATUTES OF TEXAS
Article 4552 (Texas Optometry Act)
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PO BENGE cc cccccccrcccsecsesstcceseescvvecces 40
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EE eo ad ee ieee a uigeb cere tage Gets 5, 32,38
a a eee Eee ry ere 4
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AS oc e kb de i n6dhed bas sueseaeetconeess 9,11, 33,49
POT CTT TCT TTC U TERT TCT ET TT TTT 5
Pc. sive stad de besseeeeekeeudks Cneeey tes 5
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re eee Cree ary are her 26
SS ne ee 4,5, 11, 25, 26
TEXTS
Benham and Benham, Regulating Through the Professions:
A Perspective on Information Control, 13 JOURNAL OF
LAW AND ECONOMICS 421 (1975) ...........6... 24
Staff Report to the Federal Trade Commission, Advertising ,
of Ophthalmic Goods and Services, January 1976 ..... 9, 23
IN THE
Supreme Court of the United States
OCTOBER TERM, 1977
NO. 77-1164
DR. N. JAY ROGERS, O. D. and W. J. DICKINSON, Individually
and as President of the TEXAS SENIOR CITIZENS ASSOCIATION.
PORT ARTHUR, TEXAS CHAPTER,
Appellants
V.
DR. E. RICHARD FRIEDMAN, O. D., DR. JOHN B. BOWEN,
O. D., DR. HUGH A. STICKSEL, JR., O. D., DR. JOHN W.
DAVIS, O. D., DR. SAL MORA, O. D., Individually and in their
official capacity as members of THE TEXAS OPTOMETRY BOARD:
and THE TEXAS OPTOMETRIC ASSOCIATION, INC.,
Appellees
On Appeal from the United States District Court
for the Eastern District of Texas
(Three-Judge)
BRIEF FOR THE APPELLANTS IN NO. 77-1164
OPINION BELOW
The memorandum opinion of the three-judge United
States District Court for the Eastern District of Texas,
Beaumont Division, is reported at 438 F. Supp. 428
(September 12, 1977).
2
JURISDICTION
In this direct appeal this Court’s jurisdiction rests on
28 U.S.C. § 1253. The three-judge court rendered judg-
ment on October 27, 1977. (Appendix A to Jurisdictionai
Statement in No. 77-1164). Appellants filed their notices
of appeal on December 21, 1977. (Appendix B to Juris-
dictional Statement in No. 77-1164). Appellants filed their
Jurisdictional Statement on February 16, 1978. This
Court noted probable jurisdiction on April 17, 1978 and
ordered this appeal consolidated with Nos. 77-1163 and
77-1186. ___US. . 98 S.Ct. 1604, ___L.Ed.2d____
(1978).
STATUTES INVOLVED
Section 2.02 of the Texas Optometry Act, Article 4552,
Revised Civil Statutes of Texas, enacted in 1969, pro-
vides:
To be qualified for appointment as a member of
the board, a person must be a licensed optometrist
who has been a resident of this state actually en-
gaged in the practice of optometry in this state for
the period of five years immediately preceding his
appointment. A person is disqualified from appoint-
ment to the board if he is a member of the faculty
of any college of optometry, if he is an agent of any
wholesale optical company, or if he has a financial
interest in any such college or company. Af all times
there shall be a minimum of two-thirds of the board
who are members of a state optometric association
which is recognized by and affiliated with the Amer-
ican Optometric Association.
Other relevant provisions of the Texas Optometry Act
have been reproduced in Appendix C to the Jurisdictional
3
Statement of Dr. N. Jay Rogers and W. J. Dickinson,
Individually and as President of the Texas Senior Citi-
zens Association, Port Arthur, Texas Chapter, Appellants
herein, and in Appendix A to their Motion to Affirm filed
by them as Appellees in Nos. 77-1163 and 77-1186.
QUESTIONS PRESENTED
1. Does § 2.02 of the Texas Optometry Act, by re-
quiring that at least two-thirds of the Texas Optometry
Board be members of the Texas Optometric Association,
deprive Appellant, Dr. Rogers, of the equal protection of
the laws guaranteed by the Fourteenth Amendment to the
United States Constitution?
2. Is the determination of the district court that there
is a rational basis for § 2.02’s classification of optome-
trists according to their membership in a particular or-
ganization clearly erroneous and refuted by the evidence?
3. Does § 2.02 of the Texas Optometry Act, by re-
quiring that at least two-thirds of the Texas Optometry
Board be members of the Texas Optometric Association,
deprive Appellant, Dr. Rogers, of due process of law as
guaranteed by the Fourteenth Amendment?
4. Does the requirement of § 2.02 that at least two-
thirds of the Texas Optometry Board be members of the
Texas Optometric Association impermissibly infringe upon
the Appellants’, Texas Senior Citizens Association, Port
Arthur, Texas Chapter, First Amendment rights to re-
ceive valuable commercial information?
5. Does the requirement that at least two-thirds of
the Texas Optometry Board be members of the Texas
Optometric Association conflict with § 1 of the Sherman
Antitrust Act and thereby violate the Supremacy Clause?
a
4
- STATEMENT OF THE CASE
On August 25, 1975, Dr. N. J. Rogers, a member of
the Texas Optometry Board, filed his complaint against
the remaining five members of the Texas Optometry Board
assailing the constitutionality of § 2.02 of the Texas Op-
tometry Act insofar as that statute dictates that at all
times a minimum of two-thirds of the Texas Cptometry
Board members must be members of a state optometric
association recognized by and affiliated with the Amer-
ican Optometric Association." This statutory requirement
was attacked (1) as an arbitrary and irrational classifi-
cation “violative of the free speech and Equal Protection
Provisions of the XIVth Amendment,” which (2) also
denies Dr. Rogers due process of law. (Complaint, App.
11, 15). A permanent injunction was sought against the
enforcement of § 2.02.
The Texas Optometry Board is charged by law with
administering a comprehensive statutory scheme for the
regulation of optometry and opticianry in Texas. The
Board:
1. Examines and licenses each optometrist (§§ 3.01,
3.06, 3.07);
2. Appoints committees, conducts investigations,
and enforces the Act (§ 2.07);
1. Dr. Rogers also attacked the constitutionality of § 5.13(d) and
§ 5.15(e) of the Act. The three-judge court upheld the constitution-
ality of § 5.15(e) and Dr. Rogers has not appealed from that portion
of the judgment. The three-judge court struck down § 5.13(d)’s pro-
hibition on practice under a trade name on the ground that it vio-
lated the First Amendment. The defendant Board members and the
Texas Optometric Association, Inc.. have appealed from that portion
of the trial court’s judgment in Nos. 77-1163 and 77-1186. Those
appeals have been consolidated before this Court with the appeal of
Dr. Rogers and the Senior Citizens in this case.
5
3. May hold hearings and issue subpoenas (§ 2.10)
and bring suit in its own name (§ 2.09);
4. May suspend or revoke the license of an op-
tometrist (§ 4.04);
5. Regulates a variety of practices by dispensing
opticians (§§ 5.09(b), 5.10, 5.15).
The Act, in § 2.14, explicitly limits the Board’s rule-
making authority to procedural rules and regulations and
States:
The Board shall promulgate procedural rules and
regulations only, . . . to govern the conduct of its
business and proceedings. . . . The Board shall not
have any power or authority to amend or enlarge
upon any provision of this Act by rule or regulation
or by rule or regulation to change the meaning in
any manner whatsoever of any provisions of this
Act * * * *®
However, the Board has adopted a practice of issuing
“Interpretations” of the Act and treats these “Interpreta-
tions” as if they were law. (Deposition of Dr. Jack Bur-
ton at 37, hereinafter “Burton depo.”). The Board ad-
vises optometrists and opticians that a violation of a
Board “Interpretation” will subject the violator to dis-
ciplinary action. (Deposition of Dr. Sal Mora taken on
February 5, 1976 at 10, hereinafter “Mora depo. I”).
Membership on the Texas Optometry Board is by gu-
bernatorial appointment. A Board member must be:
(a) a licensed optometrist;
(b) a Texas resident;
6
(c) actually practicing for five years immediately
preceding appointment. and
a Board member may not be:
(a) a faculty member of or have a financial interest
in an optometry college or
(b) an agent of or have a financial interest in a
wholesale optical company.
Appellants do not complain about these legitimate re-
quirements. Appellants do challenge the additional re-
quirement that of the six Board members:
At all times there shall be a minimum of two-thirds
of the Board who ae members of a state optometric
association which is recognized by and affiliated with
the American Optometric Association.
In Texas, as in many states, there are two conflicting
viewpoints regarding how visual care should be delivered
to the public. The differences between these two view-
points relate solely to differing philosophies over the eco-
nomic aspects of optometry and opticianry; not to any
questions concerning the professional quality of the care
and materials that patients ought to be able to expect of
visual practit’ ners.
One viewpoint, strongly held and advocated by those
who refer to themselves exclusively as “professional” op-
tometrists, opposes the use of any commercial merchan-
dising or promotional techniques in connection with the
examining, prescribing and dispensing functions. The
other viewpoint, held by so-called “commercial” optom-
etrists and dispensing opticians, such as Appellant, Dr.
7
Rogers, who is both a licensed optometrist and a dis-
pensing optician, favors the use of trade names, adver-
tising, multiple offices and related commercial techniques
to provide visual services and materials to the public
efficiently and at reasonable prices.
The Texas Optometric Association, Inc. (TOA), Ap-
pellee herein, endorses the “professional” viewpoint and
mode of practice. TOA is a private membership corpora-
tion “recognized by and affiliated with the American
Optometric Association” (AOA) within the meaning of
§ 2.02. TOA has been and continues to be the only or-
ganization in Texas possessing that particular credential.
(App. 234).
As of May 12, 1976, a total of 934 Texas-licensed
optometrists resided in Texas (Texas Optometry Board
print-out dated May 12, 1976 under official certificate).
Of that figure, only an outside maximum of 482 optom-
etrists (or slightly more than one-half the total of 934
licensees in residence) were members of TOA actively
engaged in practicing optometry. (Deposition of TOA
Executive Director, Stanley Boysen, taken on written
questions March 5, 1976 at question 5, hereinafter
“Boysen depo. II”). In other words, 452 Texas-licensed
optometrists residing in Texas were not members of TOA.
There exists no reason to believe that these proportions
have changed to any significant degree during the course
of this litigation.
Membership in TOA is limited to optometrists, and
even more exclusively to optometrists who do not:
1. Practice under any trade name;
2. Engage in any form of commercial advertising,
including price advertising; or
8
3. Utilize any commercial management or merchan-
dising techniques such as multiple offices, “com-
mercial” locations for offices, transaction of busi-
ness as a dispensing optician, and franchise-type
purchasing, pricing and delivery of opthalmic goods
and services.
(App. 399-416). This is the consequence of the AOA-
TOA Codes of Ethics and Rules of Practice, which thor-
oughly repress commercial activity.
Accordingly, Dr. Rogers and all others who practice
like him in the “commercial” mode are strictly precluded
from belonging to TOA. Yet every Texas-licensed op-
tometrist, TOA or non-TOA, holds exactly the same kind
of license, is subject to the same examination and con-
tinuing educational requirements, and practices with the
same degree of authority. Further, each is subject to the
same statutory mandates and restrictions with respect to
competence, honesty and proper patient care. No serious
dispute exists between the “professional” TOA faction
and the “commercial” non-TOA faction over proper
patient treatment and proper lens prescriptions. (App.
279-280, 374, Deposition of N. Jay Rogers taken Feb-
ruary 5, 1976 at 103, hereinfater “Rogers depo. I,” Depo-
sition of N. Jay Rogers taken on April 6, 1976 at 118-
120, hereinafter “Rogers depo. II”).
Indeed, “commercial” optometry and opticianry are
perfectly lawful activities in Texas. State law does not
limit to any degree the number of optometry or opticianry
offices that a licensed optometrist may own. State law
does not limit-the number of optometrists or opticians
that a licsensed optometrist may employ or have as part-
ners. State law permits a licensed optometrist to transact
9
business also as a dispensing optician, even though the
AOA-TOA codes and rules do not. In this very case the
State of Texas has effectively conceded that it may no
longer enforce a blanket ban on price advertising by op-
tometrists, having declined to appeal the portion of the
judgment that struck down § 5.09(a) of the Act. The
Official legislative history of the present Optometry Act
clearly indicates the Texas Legislature’s intention to “gen-
erously permit” the continued, unintimidated practice of
“commercial” optometry and opticianry. (Proceedings Be-
fore Texas Senate Public Health Committee, May 9,
1969 at 28, on file herein under official certificate. )
Furthermore, the record ovewhelmingly establishes the
absence of any systematic difference in the quality of eye
care in Texas depending on whether a given practitioner
transacts business “professionally” or “commercially,” or
whether he or she belongs or does not belong to TOA.
Nor is there any qualitative difference in the lenses and
frames dispensed by the members of the respective fac-
tions, for the same suppliers of lens blanks and ancillary
optical merchandise are generally available to all op-
tometrists and opticians. (Rogers Depo. II at 124-25,
150, App. 421-22). According to the affirmative, uncon-
tradicted expert testimony below, the use of commercial
advertising does not lead to a reduction in the quality
of eye care. (App. 340-41, 346-48). The staff of the
Federal Trade Commission likewise reached these con-
clusions, independently, in its exhaustive report, Adver-
tising of Ophthalmic Goods and Services, January 1976
at 66-72. _
Eligibility for membership in TOA is determined en-
tirely by some twenty geographically drawn “local so-
cieties” of TOA. The state“level management of TOA
10
accepts or rejects an applicant for membership solely on
the basis of the “local society's” recommendation. If the
“local society” recommends that an optometrist be ad-
mitted to TOA, then the optometrist becomes a member
of TOA and of AOA. Otherwise, no person is permitted
to join TOA. (Deposition of Stanley Boysen on oral
questions at 41-48, hereinafter “Boysen depo. I”). Nor
do the various “local societies” of TOA use or maintain
any written or publicly-knowable criteria for admission,
except for the AOA-TOA Codes of Ethics and Rules of
Practice. Moreover, there are no written or publicly-
knowable criteria whatever by which admission to TOA
at the state level is measured. (Deposition of Dr. James
Riley, Jr. at 152, hereinafter “Riley depo.”).
With the singular exception of the Texas Optometry
Board, no administrative, legislative or judicial board,
agency, commission or body in the entire State of Texas
is required by constitutive law to draw its controlling
majority “at all times” from a specified private associa-
tion, corporation or other organization composed of its
regulatees. See Advisory Commission on Intergovern-
mental Relations, Handbook of Governments in Texas.
Section 2.02 of the Texas Optometry Act vests a private
faction, notoriously zealous in its opposition to all forms
of “commercialism,” with perpetual supermajority control
over the governmental regulation of optometry and the
business of opticianry.
That faction’s membership reflects the interests of only
half, or slightly more, of all licensed optometrists residing
in Texas. By its own rules that faction’s membership does
not represent the interests of any of the dispensing op-
ticians who are regulated by the board that it irreversibly
controls. It is undisputed that the Texas Optometry Board
11
regulates and disciplines dispensing opticians as well as
optometrists. (Mora depo. I at 21-22; Burton depo. at
15). Yet, except to the very limited extent that their
interests may presently be represented by Dr. Rogers,
those persc::: and entities engaged in business as dispens-
ing opticians have no representation on the Board.
This arbitrary and irrational statutory arrangement,
which constitutes nothing other than the establishment
and perpetuation by the State of Texas of a private gov-
ernment, denies Appellants rights guaranteed them by the
free speech provisions of the First Amendment and the
Equal Protection and Due Process Clauses of the Four-
teenth. Dr. Rogers is joined in his attack by W. J. Dick-
inson, individually and as President of the Texas Senior
Citizens Association, Port Arthur, Texas Chapter (Senior
Citizens). (App. 28-39).?
On October 27, 1977, the three-judge court entered
final judgment upholding § 2.02 of the Texas Optometry
Act. The trial court held that § 2.02 “is not in violation
of the First and Fourteenth Amendments of the United
States Constitution.” (See p. A-15, Jurisdictional State-
ment in No. 77-1164). In its memorandum opinion the
lower court accepted Appellees’ several asserted “rational
bases for the requisite board composition,” 438 F. Supp.
at 432, and rejected the equal protection, due process and
free speech challenges made by Dr. Rogers and the Senior
Citizens, who then prosecuted this appeal.
2. The Senior Citizens also joined in Dr. Rogers’ attack on § 5.13
(d) and § 5.15(e) and independently assailed the constitutionality of
§ 5.09(a), which prohibits price advertising by optometrists. The
three-judge court struck down § 5.09(a)’s prohibition on price ad-
vertising as violative of the First Amendment and no party has
appealed from that portion of the judgment.
12
SUMMARY OF ARGUMENT
By this brief Appellants demonstrate that § 2.02 of the
Texas Optometry Act:
1. Denies Dr. Rogers equal protection of the law
by imposing excessive burdens on his First Amend-
ment rights to shape his associations free of govern-
mental repressions and to engage in truthful com-
mercial speech;
2. Denies Dr. Rogers due process of law by (a)
arbitrarily, irrebutably presuming him less fit to
serve on the Texas Optometry Board simply because
he does not belong to TOA and by (b) subjecting
him to incessant abuse at the hands of a philosoph-
ically biased and economically-interested regulatory
board dominated perpetually by TOA;
3. Denies the Senior Citizens their First Amendment
right to receive valuable commercial information by
forcefully encouraging state-regulated optometrists
to affiliate with TOA and adhere to TOA’s tenets;
and
4. Violates the Supremacy Clause by embracing a
private organization, TOA, whose raison d'etre vio-
lates § 1 of the Sherman Act.
Appellants also establish that the purported “rational
bases” for § 2.02 are illusory and clearly erroneous. In
short, the evidence of record conclusively permits the
singular finding that § 2.02 is based solely upon blatant,
invidious discrimination.
Because fundamental associational and free speech in-
terests are at stake, the Appellees bear the burden—
Ee
13
which they have not sustained—to demonstrate § 2.02’s
necessity to the effectuation of important countervailing
State interests. Alternatively, and in any event, no state
of facts is conceivable that would justify the discrimina-
tion institutionalized by § 2.02.
Furthermore, by its creation and reinforcement of a
private government over the optical professions and trades
in Texas, § 2.02 operates to deny due process—sub-
stantive and precedural; it represses communicative ac-
tivity protected by the First Amendment; and it lends
the state’s endorsement, albeit not the state’s compulsion,
to significant concerted restraints of trade that violate
federal antitrust policy.
For all the foregoing reasons the portion of § 2.02
of the Texas Optometry Act now in question is due to
be struck down by this Court. Appellants are entitled to
the relief prayed in their Conclusion to this brief.
ARGUMENT
I.
THE REQUIREMENT THAT AT LEAST TWO-
THIRDS OF THE BOARD BE MEMBERS OF
TOA DEPRIVES APPELLANT, DR. ROGERS,
OF FOURTEENTH AMENDMENT EQUAL
PROTECTION
The vesting of a minimum two-thirds majority of the
seats on the Texas Optometry Board in TOA vests con-
trol of the Board in a special interest group that repre-
sents only half of the State’s optometrists. This grant of
control over the governmental body that regulates the
profession impacts heavily on the rights of the state’s
14
optometrists both (1) to associate to advance views dif-
fering from the views expressed by TOA on issues that
are of vital importance to the entire profession, and (2)
to engage in constitutionally permissible commercial free
speech. If an optometrist claims his right to associate
with others to advocate a lawful viewpoint in an asso-
ciation other than TOA or simply chooses to exercise his
tight not to associate with TOA, he is forever foreclosed
from an opportunity to be a member of the Board ma-
jority or to have his interests advanced by a Board
majority. An optometrist who claims his right of com-
mercial free speech or who simply does not desire to
abdicate that right by submitting himself to the restric-
tions of the AOA-TOA Codes of Ethics and Rules of
Practice (App. 399-416) is forever foreclosed from an
opportunity to be a member of the Board majority or
to have his interests advanced by a Board majority.
This heavy impingement upon valuable associational
and speech freedoms violates the equal protection assur-
ances of the Fourteenth Amendment, absent a compelling
state interest in making an otherwise arbitrary, discrim-
inatory classification. Williams v. Rhodes, 393 U.S. 23
(1968).* The discriminatory requirement of § 2.02 is
3. In its Motion to Affirm or Dismiss at page 24 n. 4, TOA has
contended that the argument that § 2.02 infringes upon Dr. Rogers’
First Amendment rights of association and speech and thereby denies
him the equal protection of the laws was not raised in the lower court
and is not properly before this Court. The following facts establish
that TOA’s contention is without support in the record:
(a) Dr. Rogers’ Complaint contained a prayer “That the Full
Court declare § 2.02 . . . violative of the Free Speech and
Equal Protection Provisions of the XIV Amendment to the
Constitution ,of the United States.” (App. 15).
(b) In the Brief of Plaintiff and Intervenors filed with the three-
judge court, Dr. Rogers argued at pages 110-115 that this
type of organizational membership requireryent for service on
15
clearly more than mere economic regulation which will
be upheld if there is a rational basis to justify it. Mc-
Gowan v. Maryland, 366 U.S. 420 (1961).
Dr. Rogers does not contend that there is a constitu-
tionally protected right to majority membership on the
Board or even to any membership on the Board. How-
ever, when the opportunity to serve on the Board is de-
nied because of associational ties, or the lack thereof, and
the exercise of the right of free commercial speech, fund-
amental rights protected by the Constitution of the United
States are impermissibly invaded. Compare Keyishian v.
Board of Regents, 385 U.S. 589 (1967) and Turner v.
Fouche, 396 U.S. 346 (1970).
In Keyishian this Court struck down a scheme that
denied public employment as a teacher on the basis of
mere membership in the Communist party, such member-
ship being prima facie evidence of disqualification for
employment in any public position. The Statutory pre-
sumption infringed too greatly on protected associational
interests and could not be justified by the state’s interest
in keeping subversives out of its public offices. In this
case § 2.02 operates on the presumption that if an op-
a governmental board denies half of the state’s optometrists
a fair opportunity to exercise their political influence.
(c) The opinion of the three-judge court recognized the argument
described in (b), above. See 438 F. Supp. at 431.
(d) The Final Judgment of the three-judge court in regard to
§ 2.02 holds that “such provision is not in violation of the
First and Fourteenth Amendments of the United States Con-
stitution.”
(e) Finally, the Brief of Intervenor, Texas Optometric Associa-
tion, Inc. filed with the three-judge court on September 20,
1976 states at page 4, “Dr. Rogers’ primary attack on § 2.02
has been on the basis of procedural due process, substantive
due process, and equal protection under the First and Four-
teenth Amendments.” (emphasis added).
16
tometrist is not a TOA member he is not as qualified to
serve on the Board as a TOA member. It disqualifies
optometrists from majority membership on the basis of
that presumption and violates their rights of association.
The right of association includes the right not to as-
sociate as well. In Elrod v. Burns, 427 U.S. 347 (1976)
the patronage jobs in the sheriff's office were conditioned
on membership in the Democratic party. The scheme
denied employees the right not to associate with the Dem-
ocratic party, if they wanted to keep their jobs. This
Court accordingly found that First Amendment associa-
tional rights were violated.
In Williams v. Rhodes, 393 U.S. 23 (1968) the re-
strictions that made access to the ballot for any political
parties other than the Democratic and Republican parties
more difficult did not force anyone to join those parties
but did deny meaningful input to the electoral process if
one chose not to join either of those parties. Those re-
strictions were also found to violate First Amendment
rights of association.
Similarly, an optometrist who chooses not to join TOA
is denied majority membership on the Board because of his
decision not to associate with TOA. His opportunity to
serve in the majority or be represented by the majority
is conditioned on a restriction of his right to freely associ-
ate to advance whatever economic, political or social
goals he might hold.
The opportunity for majority membership or majority
representation on the Board, while not constitutionally
guaranteed, is a substantial interest. The Texas Legis-
lature has delegated to the Board the power to deter-
mine who will be allowed to practice optometry. Thus,
17
the decisions of the Board on granting new licenses, apply-
ing the Optometry Act and revoking licenses already
granted have substantial impact on the livelihood of the
State’s optometrists. The promulgation of substantive “In-
terpretations” of the Act can have subtle and not so sub-
tle influences on the manner in which the state’s optome-
trists may practice. In an era when regulatory bodies are
increasingly engaging in the business of legislation, the
limitation of access to those bodies becomes as inimical
to the interests of free association to advocate political
and economic viewpoints within an industry or profession
as a limitation on access to the ballot becomes in the
community-at-large.
A limitation on access to the ballot cannot be upheld
if it denies associational rights. Williams v. Rhodes, 393
U.S. 23 (1968); Kusper v. Pontikes, 414 U.S. 51 (1973).
Public employment cannot be made contingent upon the
abdication of associational rights. Keyishian v. Board of
Regents, 385 U.S. 589 (1967): Elrod vy. Burns, 427 US.
347 (1976). Section 2.02 of the Texas Optometry Act
classifies the state’s optometrists on the basis of their
association or non-association with TOA and on the
of that classification denies non-TOA optometrists any
opportunity to attain majority membership or majority
representation on the Board. This invidious discrimination
violates the non-TOA member’s right of association as
protected by the First Amendment and denies him the
equal protection of the k -
In Turner v. Fouche, 3. - J.s. 246 (1970; this Court
struck down the requirement that appointed school board
members be freeholders. The Co. in discussing the op-
portunity to hold appointive off’ ., ated:
18
We may assume that the appellants have no right
to be appointed to the Taliaferro County board of
education. But the appellants and the members of
their class do have a federal constitutional right to
be considered for public service without the burden
of invidiously discriminatory disqualifications. The
State may not deny to some the privilege of holding
office that it extends to others on the basis of dis-
tinctions that violate federal constitutional guaran-
tees.
396 U.S. at 362-363.
The “invidiously discriminatory disqualifications” of
§ 2.02 not only violate the federal constitution guarantee
of freedom of association but also violate the federal con-
stitutional guarantee of freedom of speech. Membership
in TOA means that an optometrist has executed a prom-
ise to abide by the AOA-TOA Codes of Ethics and Rules
of Practice. (App. 399-416). No price advertising is per-
mitted under these codes and rules. In order to join TOA
an optometrist must abdicate in advance his right to en-
gage in truthful price advertising. Since TOA membership
is the prerequisite to majority membership on the Board,
that majority membership, accompanied by majority repre-
sentation, is conditioned on an optometrist’s abdication
of his First Amendment rights. Dr. Rogers and other non-
TOA optometrists have the right to be considered for
majority membership on the Board without the burden
of the discriminatory disqualification found in § 2.02.
It has been recognized by this Court that a public
school teacher cannot constitutionally be compelled to re-
linquish his First Amendment rights as a condition of his
employment. Pickering v. Board of Education, 391 US.
19
563, 568 (1968). Similarly, the TOA super majority re-
quirement of § 2.02 conditions majority membership
and majority representation on the Texas Optometry Board
on an optometrist’s relinquishment of his right to dissem-
inate truthful price information to the consuming public
and violates the Equal Protection Clause of the Four-
teenth Amendment.
The state must show a compelling interest in sustaining
the discriminatory classification of § 2.02. In this case
the state has asserted that its interests lie in insuring
proper regulation of visual care providers and maintain-
ing high standards of care. The state argues that for the
Optometry Act to be properly enforced the control of the
Board must be vested in TOA. (Motion to Affirm on
Behalf of the Defendant Board Members in No. 77-1164
at page 4). Before one can accept the state’s argument
that control must be vested in TOA to further its interests
in high standards of visual care one must impute to non-
TOA optometrists a disposition not to enforce the Act.
However, just as mere differences of political persuasion
may not legitimately be used to impute such behavior,
Elrod v. Burns, supta, 427 U.S. at 365, mere differences
over the economics and cosmetics of the profession may
not legislatively be used.
Even if one accepted the state’s contention that the
classification found in § 2.02 furthers its interest in quality
eye care, although that contention is not supported by the
evidence in this case, it would still be constitutionally in-
firm since the means the state uses to achieve its legiti-
mate interests cannot be permitted to encroach upon Sig-
nificant First Amendment rights when less restrictive
means are available to satisfy its interests. Kusper v.
20
Pontikes, 414 U.S. 51, 58-59 (1973). The state has avail-
able to it a broad range of alternative methods to insure
that the members of the Board are qualified and will
enforce the Act free from outside influences. Indeed, the
provisions of § 2.02 not challenged in this case do exactly
that without drawing invidiously discriminatory classifica-
tions that abridge associational and commercial free
speech rights.
There is no showing that the invidiously discriminatory
classification set forth in § 2.02 furthers any legitimate
state interest. In any event, it constitutes an impermissible
means to further any legitimate state interest since it en-
croaches upon First Amendment rights when less restric-
tive means are available to satisfy any interest the state
might have. The conditioning of majority membership
and majority representation on the Board solely on mem-
bershir in TOA violates protected First Amendment
rights of association and speech. It denies Dr. Rogers
and all other optometrists similarly situated the equal pro-
. tection of the laws as guaranteed by the Fourteenth
Amendment. The requirement of § 2.02 that at least two-
thirds of the Board members be members of TOA must,
therefore, be declared unconstitutional and its enforce-
ment must be enjoined.
II.
THE PURPORTED “RATIONAL BASES” FOR
§ 2.02 ARE REFUTED BY THE EVIDENCE
IN THE RECORD
Since the discriminatory classification infringes upon
the associational and free speech rights of non-TOA mem-
bers, it can be sustained only if the state can show a com-
21
pelling state interest. Williams v. Rhodes, 393 U.S. 23
(1968). The three-judge court, however, adopted the
less stringent standard applied by this Court in cases in-
volving purely economic regulations. 438 F. Supp. at 432-
433. While Dr. Rogers would not agree that this is the
applicable standard for review of § 2.02 under the Equal
Protection Clause, even under this less stringent equal
protection test the classification of § 2.02 must fall since
it is wholly arbitrary. New Orleans v. Dukes, 427 US.
297 (1976).
The three-judge court accepted the three “rational bases”
for § 2.02 asserted by TOA. Those “rational bases” are:
(1) TOA members are more likely to be economical-
ly independent than non-TOA members.
(2) TOA members have a greater likelihood of
emphasizing the highest quality of eye care, as com-
pared to non-TOA members; and
(3) TOA members are more prone to enforce the
Texas Optometry Act than are non-TOA members.
438 F. Supp. at 432.
An analysis of these asserted rational bases in light of
the evidence before the Court will confirm the testimony
of Dr. E. Richard Friedman, current chairman of the
Texas Optometry Board, former president of TOA and de-
fendant-appellee in this case, who testified in response
to a question by counsel for Dr. Rogers:
Q. Well, what is the rational relationship in your
mind between a four-two majority and the in-
terest of the people of Texas?
A. There is none. I have no rational relationship. I
think any man that is on the Board, if he is
22
sworn to uphold the law and to enforce the law,
that is what he is there for, no matter what he
belongs to.
Q. That is my question. What way does membership
in TOA render you better able to serve than non-
TOA membership?
A. Not in any manner.
(App. 381).
The first asserted rational basis is that TOA members
are more likely to be economically independent than non-
TOA members. The testimony of Dr. Hugh Sticksel, de-
fendant Board member points out, however, that there are
instances where TOA members as employees or associates
of other TOA members might also be subject to economic
pressures which might affect their service on the Board.
(App. 266-270). As Dr. Sticksel testified, if the interest
of the state is to insure that the Board member has no
economic pressures asserted against him the only objec-
tive criteria would be to distinguish between sole prac-
titioners and all other optometrists. The criteria estab-
lished, TOA versus non-TOA, cannot rationally be ex-
pected to further the purported aim of the classification.
In any event, Article 6252-9B, Texas Revised Civil
Statutes, already imposes strict standards of conduct for
all public officials, including members of the Texas Op-
tometry Board. Those standards require disclosure of in-
terests in business entities subject to regulation by a regu-
latory agency such as the Texas Optometry Board and
further prohibit the exercise of official powers and duties
for the benefit of another in return for some favor or
benefit to the public official. /d., §§ 5 and 8.
23
The testimony of Dr. Robert Shannon, relied upon
heavily by TOA in its Motion to Affirm or Dismiss, does
little more than establish that Dr. Shannon would not have
made a good Board member since he testified that he
would expect any optometrist employed by him who
might serve on the Board to further Dr. Shannon’s in-
terests. (App. 159). Dr. Shannon is now a member of
TOA, (App. 100), and unless he has changed since join-
ing TOA one might expect that he would exert the same
economic influences on a TOA Board member if that
Board member were employed by Dr. Shannon.
The TOA also maintains that contracts entered into
between Dr. Rogers and Drs. Moore and McGuire sup-
port its contention that TOA members are more likely
to be economically independent. There is no evidence
that such contracts are widespread among commercial
optometrists or that TOA members might not be parties
to equally restrictive agreements. Whatever one’s judg-
ment might be as to the propriety of these agreements,
they do nothing to establish the premise that a TOA
member, simply because of TOA membership, is more
likely to be economically independent.
The second asserted rational basis is that a TOA mem-
ber has a greater likelihood of emphasizing the highest
quality of eye-care, as compared to non-TOA members.
Again this contention is refuted by the evidence, which
clearly establishes TOA’s true emphasis. The staff report
to the Federal Trade Commission, Advertising of Ophthal-
mic Goods and Services, January 1976, at page 61 states,
“[t]he basic thrust of associational activities for eye care
practitioners has been to foster the aura, if not the
reality, of professionalism that comprehensive health care
services, and not merchandise is offered”. (Emphasis in
24
original). The evidence in this case also indicates that
the basic thrust of TOA is to foster the aura of pro
fessionalism.
The practice Evaluation System of TOA (App. 358-
369) awards only 16 out of a possible 100 points for
activities directly related to the quality of eye care. The
other 84 points are devoted to what one commentator has
described as “information constraints”’.* In evaluating
optometrists for membership the TOA did not judge
optometrists on the quality of eye care rendered to
patients but instead judged them on how “professionally”
they presented their practice to the public.
In light of this Court’s opinion in National Society Of
Professional Engineers v. United States, |
98 S. Ct. 1355, __ L.Ed.2d __ (1978) an examination of
the AOA-TOA Codes of Ethics and Rules of Practice
(App. 399-416), which are strictly adhered to by TOA’s
members, reveals multiple restrictions on any dissemi-
nation of price information prior to the patient entering
the optometrist’s office. Such restrictions may well result
in a restraint of trade in violation of § 1 of the Sherman
Act, 15 U.S.C. § 1. Under the guise of emphasizing high
quality, “professional” care the informational constraints
imposed by TOA on its members have restricted the flow
of commercial information in restraint of trade. In fact,
it is the uncontradicted testimony of Dr. Lee Benham,
who has studied the eye care industry extensively and
who has no economic interest in the subject matter of this
case, that these informational constraints actually de-
4. Benham and Benham, Regulating Through the Professions:
A Perspective on Information Control, 13 JOURNAL OF LAW AND
ECONOMICS 421, 426 (1975). The authors examine a very similar
point evaluation system used by the Michigan Optometric Association.
25
crease the quality of eye care since they raise the cost
paid by the consumer and price many people who need
glasses out of the market. (App. 340-341).
Furthermore, the testimony of Dr. Friedman is that he
would expect a patient to get the same proper examination
or refraction and prescription at Dr. Rogers’ office as the
patient would at Dr. Friedman’s office. (App. 374). The
TOA has relied heavily on the testimony of Dr. James
Riley, Jr. in arguing that TOA members are “more apt”
to emphasize the highest quality of eye care, but even
Dr. Riley admits that TOA members do not have any
magical superiority or competence or honesty or integrity
or devotion over non-members of TOA. (App. 252).
Finally, TOA asserts that TOA members are more
prone to erforce the Texas Optometry Act than are
non-TOA members. Again, the evidence establishes that
there is no basis for this assertion. TOA’s argument is,
in effect, that the non-TOA optometrists in Texas have
often challenged optometry laws and, consequently, they
cannot be expected to enforce the Act as well as TOA
members. However, yet another of the defendant TOA
Board members, Dr. John Bowen, testified that the TOA
Majority was not necessary for the proper administration
of the Act (Bowen depo. 3-5), just as Dr. Friedman
testified that TOA membership does not make an optome-
trist more likely to enforce the law. In the face of these
unqualified admissions from the TOA Board members
who are defendants in this lawsuit, it is clear that the
last asserted “rational basis” is nothing more than a
fallacious, self-serving assumption. Indeed, Dr. Friedman
testified that he routinely violates § 5.15(e) of the Act
by failing to inform his patients that they may take
their prescriptions to a dispensing optician of their choice.
26
He further testified that the Board, with a four-member
TOA majority, has never taken any action for violation
of § 5.15(¢), although he believed very few optometrists
were obeying this statute. (App. 114-115).
Dr. Nelson Waldman, a TOA leader and former chair-
man of the Optometry Board, testified that the most fre-
quent violation of the Basic Competency Rule, § 5.12
of the Act, found by the Board’s investigators, was the
failure to test peripheral vision. This is the simplest of all
tests and TOA members violated it as well as non-TOA
members. Dr. Waldman testified that perhaps the failure
to check peripheral vision is more related to human
nature than mode of practice. (Deposition of Dr. Nelson
Waldman at 71-73).
The State of Texas and TOA have asked the three-
judge court below and would ask this Court to impute
ill-willed conduct, an unwillingness to enforce the pro-
visions of the Act, to those optometrists who choose
not to join TOA simply because those optometrists are
not members of TOA. In Elrod v. Burns, 427 U.S. 347
(1976) this Court refused to impute ill-willed behavior
to Republican employees of the Cook County Sheriff's
Office simply because of their party allegiance. In so
holding it was noted that:
The Court has consistently recognized that mere
political association is an inadequate basis for im-
puting disposition to ill-willed conduct. Keyishian v.
Board of Regents, 385 U.S. at 606-608, 17 L.Ed.2d
629, 87 S. Ct. 675; Elfbrandt v. Russell, 384 U.S.
11, 19, 16 L.Ed.2d 321, 86 S.Ct. 1238 (1966);
Wieman v. Updegraff, 344 U.S. at 190-191, 97
5.Ed. 216, 73 S. Ct. 215.
427 U.S. at 365 (opinion of Mr. Justice Brennan).
ee |
27
Similarly, virtually half the state’s optometrists have
chosen not to join TOA and support its political activities
on behalf of the “professional” mode of practice. To
impute a disposition for non-enforcement of the optome-
try laws to those optometrists on the basis of their choices
not to associate with TOA defies reason. The right of an
individual to choose with whom he associates or does not
associate for political, social or economic reasons is pro-
tected by the First Amendment. That choice cannot be
used legitimately to impute ill-willed conduct to non-TOA
optometrists.
The evidence before the trial court conclusively estab-
lished the invalidity of each and every asserted rational
basis for the arbitrary classification. No set of facts can
be conceived that would support the discriminatory classi-
fication of § 2.02. The three-judge court’s holding that
there was a rational basis for the classification is clearly
erroneous. Under the test as stated in New Orleans v.
Dukes, 427 U.S. 297 (1976) the wholly arbitrary classi-
fication of § 2.02 denies Dr. Rogers and all other non-
TOA optometrists the equal protection of the law.
Il.
THE REQUIREMENT THAT AT LEAST TWO-
THIRDS OF THE BOARD BE MEMBERS OF
TOA DENIES APPELLANT, DR. N. JAY
ROGERS, FOURTEENTH AMENDMENT
DUE PROCESS
A. Substantive Due Process
The plain effect of the provision of § 2.02 that requires
that a minimum of two-thirds of the Texas Optometry
Board be TOA members is to create an irrebuttable pre-
28
sumption that a non-TOA member, simply because he
is not a TOA member, is less qualified and competent
to serve on the Board. If the six most intelligent, honest,
competent and accomplished optometrists in the state
were not TOA members only two could be appointed
to the Board. And while any one of those six might be
chosen to fill one of the two positions available to non-
TOA optometrists, the fact remains that four of them will
be statutorily presumed to be incompetent to serve.
The fundamental right to associate, whether the asso- f
ciation is to advance political, economic, religious or
cultural matters, is protected by the Due Process Clause
of the Fourteenth Amendment and any statute that has
the effect of infringing that right must be subjected to
the strictest scrutiny. NAACP v. Alabama, 357 US. 449,
460-461 (1958).
When a statutory scheme such as § 2.02 arbitrarily
favors one class of similarly situated optometrists over
another and infringes upon the fundamental associational
rights of the disfavored class of optometrists, it denies
them due process of law. Cf. Vlandix v. Kline, 412 U.S.
441 (1973); United States Department of Agriculture v.
Murry, 413 U.S. 508 (1973); Cleveland Board of Educa-
tion v. LeFleur, 414 U.S. 632 (1974); Carrington v.
Rash, 380 U.S. 89 (1965).
While it is of no precedential value to this Court the
dissent in Cook v. Hudson, 511 F.2d 744, 750 (Sth Cir.
1975), cert. granted 424 U.S. 941, cert. dismd. as im-
providently granted, 429 U.S. 165, is a well-reasoned
example of a similar due process argument. Judge Clark
correctly points out that the State cannot avoid due
process scrutiny of a statutory scheme that conditions
public employment, which is not a fundamental right, on
29
the abdication of constitutionally protected rights. Key-
sishian v. Board of Regents, 385 U.S. 589 (1967). Simi-
larly, the state in this case cannot avoid due process
scrutiny by arguing that there is no protected right to
have equal or majority input on a state regulatory body,
or even to serve on the regulatory body. There is, of
course, no such constitutionally guaranteed right. How-
ever, when the state conditions majority membership on
the abdication of one’s right to associate with groups
other than TOA and to espouse a different but equally
lawful view on the proper mode of practice, it clearly
does impose a burden on the exercise of a fundamental
right and forces members of the burdened class to abdi-
cate their fundamental rights in order to obtain eligibility
to share in the system of rewards that is arranged by the
law establishing the political process in question.
Just as the conditioning of public school employment
on a person’s decision not to send his or her own children
to public schools very probably created an irrebuttable
presumption that denied due process of law, 511 F.2d at
751-753 (Clark, J., dissenting), so also the conditioning
of eligibility for majority representation and majority
membership on the Optometry Board on an optometrists’
association, or lack thereof, with TOA creates an irrebut-_
table presumption that non-TOA optometrists are unfit
to constitute a majority of the Board simply because they
are not members of TOA. The state has shown no com-
pelling state interest in drawing a sweeping enactment
that infringes upon fundamental associational rights. In
the absence of a compelling state interest, just as § 2.02
denies “commercial,” non-TOA optometrists the equal
protection of the laws, it equally denies them due process
of law as guaranteed by the Fourteenth Amendment.
30
B. Procedural Due Process
Since the enactment of § 2.02 of the Texas Optometry
Act in 1969, the irreversible minimum 4-2 TOA control
of the Texas Optometry Board has affected “everything
the Board does,” including its primary functions of ex-
amining and licensing optometric candidates. (Rogers
depo. II. 165-168). The record is replete with examples
of how TOA’s supermajority domination of the Board
has directly and adversely affected Appellant Dr. Rogers,
and indeed, continues to affect him adversely even as this
appeal awaits decision by this Court.
For example, in 1971 the Board, under the chairman-
ship of TOA leader Dr. Jack Burton, and at the instance
of the North Texas Society of TOA, formally instituted
groundless charges of fraud against Dr. Rogers. (Rogers
depo. II. at 131-132, Burton depo. 70-71, Document
#5 in set of Optometry Board certified documents).
Normal disciplinary procedures were deliberately circum-
vented in that the Board scheduled a formal hearing and
issued a subpoena without the matter (relating to the
technical duration of a lease exemption) having been
presented to or acted upon by the enforcement committee.
(Burton depo. 7, Mora depo. I at 19). Against no other
optometrist has the Board invoked such charges or formal
procedures. (Burton depo. 72). Not until 1975 did the
TOA supermajority of the Board ever allow Dr. Rogers
or any other non-member of TOA to serve on an investi-
gating or enforcement committee. (Burton depo. 30,
Friedman depo. 104-106, Rogers depo. II at 6-7, 13-15).
In 1973 a baseless censure resolution was adopted
against Dr. Rogers by three of the Board’s four TOA
members as a smokescreen for the improper conduct
31
during an examination of candidates by the fourth TOA
Board member, who subsequently made a public admis-
sion and apology for having violated Board rules designed
to assure the confidentiality of candidates’ names. (Rogers
depo. II at 137-139, Burton depo. 39-57). Only when
Dr. Rogers considered filing suit was the censure resolu-
tion rescinded. (Rogers depo. II at 139). In 1975 Dr.
Rogers was again threatened by the TOA supermajority
with disciplinary action, including possible license suspen-
sion or revocation, growing out of TOA’s views concern-
ing optometric advertising and reference to price by dis-
pensing opticians. (Rogers depo. II at 134-135).
Even currently this pattern of threats and intimidation
has not quieted. On May 3, 1978, by vote of the four
TOA members against the one vote of non-TOA member
Dr. Rogers (the sixth board member—likewise a non-mem-
ber of TOA—abstaining ), the Optometry Board adopted a
formal resolution requesting the Attorney General of
Texas to “proceed to enforce” an anti-advertising provi-
sion, § 5.11, of the Texas Optometry Act against one of
Dr. Rogers’ offices in Houston, Texas. The four TOA-
affiliated Optometry Board members confirmed their reso-
lution by forwarding to the Attorney General a letter
setting forth its substance, a certified copy of which letter.
signed by Board Chairman and former TOA President,
Dr. E. Richard Friedman, is included in Appendix “A”
to this brief. The resolution and letter are currently the
subjects of continuing proceedings in the trial court.
Dr. Rogers, Appellant herein, has repeatedly been
forced to incur substantial costs in time and legal expense
to defend against these persistent, economically-motivated.
TOA-instigated charges. Such recurrent charges, threats.
expenses and resultant injury will continue unabated.
32
however, as they have since 1969, for so long as the
TOA supermajority of the Optometry Board persists in
employing the guise of “procedural” rulemaking to enlarge
upon and alter the meanings of certain advertising and
mode of practice-related sections of the Texas Optometry
Act.
Specifically, the Board takes it upon itself—notwith-
standing § 2.14 of the Act—to issue “Interpretations” cf
the optometry statutes. In the meantime the TOA super-
majority has caused internal procedures to be adopted
whereby it becomes impossible, as a practical matter,
for a non-TOA dissenter to require the Board to obtain
the Attorney General’s opinion on the validity of those
“Interpretations”. (See Rogers depo. IJ at 131, Mora
depo. I at 12, Friedman depo. 33). In short, one vote
or two votes in favor of seeking the Attorney General's
opinion is never sufficient against the four TOA votes.
In those instances material to this case in which the
Optometry Board has divided “TOA 4—Opposition |
or 2”, the issues have been advertising and the transaction
of optical business in “commercial” fashion. (App. 280).
In particular, the Court will observe that “Interoretations”
6, 7, 9, 10 and 11 constitute substantive co.ustructions
of the Texas Optometry Act with respect to the “com-
mercial” issues described therein. Each is the product of
a 4-2 vote, TOA against non-TOA. Only upon one
occasion, that being “Interpretation” 6, did the super-
majority allow the Attorney General to pass on the
validity of the “Interpretation”. Then, ignoring entirely
§ 2.14’s limitation of the Board’s rulemaking authority,
the Attorney General of Texas held “Interpretation” 6
to be valid and correct enlargement on the meaning of
33
§ 5.09(a) of the Act, even though that section does not
even mention “reference” to price. Attorney General’s
Opinion No. M-1029 (1971). We now know, of course,
that the court below has found the underlying statute,
§ 5.09(a), in violation of the First Amendment and the
State of Texas has not appealed that decision.
Still, after the Attorney General upheld “Interpretation”
6, the TOA supermajority of the Board was convinced.
and remain convinced, that they have “the legal power
to adopt whatever interpretations they see fit to adopt”.
(Rogers depo. II at 131). Furthermore, the TOA mem-
bers of the Optometry Board and the members of the
Texas optometry profession at large, as well as dispens-
ing opticians, consider the Board’s “Interpretations” to
be viable statements of the law. In other words, people
are afraid to violate them for fear of retaliation and
retribution. (Mora depo. I at 20).
A concrete example of this threat of retribution oc-
curred in 1970. Dr. E. Richard Friedman, now-Chairman
of the Texas Optometry Board, longtime TOA leader
and an Appellee herein, filed a complaint with the Board
alleging that certain newspaper advertising constituted
“gross and deliberate violations of Board interpretations
numbers six and seven” and that he was “being discrimi-
nated against and hurt economically”. (Document #1 in
Optometry Board records under official certificate). (Em-
phasis added). In his testimony nearly six years later,
Dr. Friedman still insisted that, in his view, the “Inter-
pretations” give the Board “guidance in our enforcement
and in investigation procedures and in any action the
Board may take.” (Friedman depo. 40). (Emphasis
added).
34
Similar admissions are found in the testimony of TOA
member and former Optometry Board Chairman, Dr.
Jack Burton: “I never thought about them as Board inter-
pretations. / thought of them as the act itself and I never
worried about interpretations”. (Burton depo. 37). (Em-
phasis added). Dr. Sal Mora, a member of the Optometry
Board but not a member of TOA, added that the Board
advises practicing optometrists that they will be subject
to discipline if they violate Board “Interpretations”. (Mora
depo. I at 20).
This is not a case presenting an attack on benign peer
review or other traditional forms of professional self-regu-
lation under which all, or at least a fair cross-section, of
licensees enjoy meaningful opportunity for access to and
collective influence upon the regulatory process. Rather,
at issue herein is an expressly-legislated scheme of state
government in which a discrete segment of the Texas Op-
tometry Board controls the exercise of power belonging
to the state, but accounts for that exercise essentially
only unto persons with whom that segment’s members
associate and identify privately. The Fourteenth Amend-
ment circumscribes the powers of the state. Under the
Due Process Clause of that Amendment the State of
Texas may not, by the enactment and operation of § 2.02
oi the Texas Optometry Act, arbitrarily deprive Dr. Rog-
ers and similarly-situated persons of their liberty and
property.
The vice of § 2.02 is that “at all times at least two-
thirds” of the members of a governmental body are re-
quired, by the very law that gives them the power to
govern, to continue their active participation in a private
organization composed of their fellow regulatees that de-
35
liberately constrains itself through its internal canons
from accommodating or developing negotiable responses
to the lawful interests of an almost-equally large number
of other, likewise-regulated optometrists. Moreover, those
disenfranchised optometrists are joined in the excluded
class by all those persons and firms engaged in business
in Texas as dispensing opticians.
But apart from the reward conferred upon TOA by
§ 2.02 all Texas Optometrists and all dispensing opticians,
respectively, stand on equal footing under those remain-
ing sections of the Texas Optometry Act that govern the
conduct of their respective enterprises. That genuine dis-
cernible, articulable economic and philosophical differ-
ences separate the “professional” TOA faction and the
“commercial” non-TOA faction is not the consequence
of either group’s disenchantment or noncompliance with
laws validly enacted by the legislature, but is instead the
result of thousands of people doing business for many years
under two very distinct modes historically permitted by
law.
By this appeal Dr. Rogers does not seek to have the
Court declare that no TOA member may serve on the
Optometry Board, or that only one or two or three TOA
members may serve, or that the Texas Legislature must
establish some kind of quota system dividing the Board
between TOA members and nonmembers on the basis of
proportional representation. Instead, this challenge is based
on the simple democratic proposition that the Due Process
Clause forbids the state institutionally to embrace and
perpetuate private factionalism in a manner whereby one
lawful side of a debatable issue obtains an irreducible
advantage over the other. Cf. First National Bank of
Boston v. Bellotti, U.S , 98 S. Ct. 1407,
36
1420-21 (1978); Buckley v. Valeo, 424 U.S. 1, 48-49
(1976); City of Eastlake v. Forest City Enterprises, Inc.,
US. , 96 S. Ct. 2358, 2364 (1976) (State
legislature may not delegate its power to a narrow seg-
ment of the community”) (Emphasis in original); Vir-
ginia State Board of Pharmacy v. Virginia Citizens Con-
sumer Council, Inc., 425 U.S. 748, 765 (1976) (If free
flow of commercial information is indispensable to re-
source allocation in a free enterprise system, then it is
also essential to formation of intelligent opinion on how
that system ought to be regulated or altered).
From the opinion below it is obvious that the trial
court sought to avoid the procedural due process issues
made by the record. The trial court reached, in essence,
two conclusions: first, that Dr. Rogers’ complaint about
the composition of the Optometry Board may not be
heard except in the context of a “disciplinary adjudica-
tion”, which presumes the filing of formal charges against
him by the Board; and second, that absent such formal
charges, Dr. Rogers may not complain about the past
and present conduct of the TOA super-majority because
““there is no federal constitutional requirement to the
effect that legislators and rule makers must be free of
bias or interest’”. 438 F. Supp. at 433, quoting Wall v.
American Optometric Association, Inc., 379 U.S. 175, 180
(N.D. Ga. Three-Judge Court 1974), affirmed 419 U.S.
888 (1974). The trial court then indicated, in dicta, the
circumstances under which it believed a procedural due
process challenge might become appropriate for review.
438 F. Supp. at 433-34.
Although the trial court sought to distinguish Gibson
v. Berryhill, 411 U.S. 564 (1973), the distinctions that it
37
mentioned are immaterial and do not subtract from the
current, immediate ripeness of the procedural due process
problem for decision by this Court. Furthermore, the
portion of the Wall holding, summarily affirmed by this
Court, from which the trial court quoted is either irrele-
vant to this case or, alternatively, erroneous when ex-
tended to the facts of this case, in which event it should
not now be followed. On the other hand, separate portions
of the Wall decision do furnish strong support for the
proposition that Dr. Rogers need not undergo once more
the institution of formal adjudicative proceedings in a
State tribunal in order to gain standing to present his claim
to a federal court.
The record indisputably establishes that, since 1969,
Dr. Rogers has been selectively subjected by the TOA
supermajority to repeated threats of action against his op-
tometry license because he has chosen, with great suc-
cess, to conduct his business “commercially.” And those
threats have not yielded the result TOA desires does not
diminish their persistency or the consequent strong circum-
stantial likelihood that they will continue into the fore-
seeable future, unless restrained by the Court. Even at
present the TOA supermajority has caused a pending
threat of legal action to be lodged against Dr. Rogers, see
Appendix “A”, because he has elected to exercise what
in all likelihood is his First Amendment right to adver-
tise optometric goods and services.
The court below reasoned that Gibson and Wall do not
apply because “those cases were brought after the optom-
etry boards in question had brought charges against the
optometrist plaintiffs . . .” 438 F. Supp. at 433 (Empha-
sis in original). In Wal!, however, the three-judge court had
properly noted:
38
[T]he board asserts that plaintiffs who are not the
subject of pending license revocation proceedings do
not have standing to challenge any of the rules. This
position is clearly refuted both by the Supreme
Court’s recent decision in Steffel v. Thompson, 415
U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974)
and by the congressional scheme of allowing antici-
patory challenge to state proceedings in certain cCir-
cumstances. If the mere lack of pending state pro-
ceedings served to deprive plaintiffs of standing to
contest regulatory schemes, plaintiffs would invari-
ably be trapped between Scylla and Charybdis of
standing and the doctrine of equitable restraint, dis-
cussed below. Such a system would defeat Congress’
policy of allowing anticipatory challenges to state
proceedings.
379 F. Supp. at 182. As in Steffel v. Thompson and Wall,
supra, the plaintiff herein, Dr. Rogers, requested a decla-
ratory judgment. (App. 11). In preparing its memoran-
dum opinion the court below apparently overlooked this
feature of the case. But in any event, the currently-pend-
ing threat of legal action, issued by resolution of the Op-
tometry Board’s four TOA members, makes § 2.02 of the
Act ripe for review of Dr. Rogers’ claim at this time.
The trial court also attempted to distinguish Gibson
and Wall on the grounds that the optometry boards in
those cases possessed rulemaking power, whereas § 2.14
of the Texas Optometry Act authorizes the Texas Optom-
etry Boerd to adopt “procedural rules only”. See 438 F.
Supp. at 433. Presumably Board “Interpretation” 6, which
forbade Texas optometrists to make any “reference to
price”, and which was upheld by the Texas Attorney Gen-
eral, constituted such a “procedural” rule.
39
Actually, the court below made a very dangerous and
questionable assumption about the weight that the ap-
parent meaning of one state statute should be given
in testing the constitutionality of the Optometry Board
composition prescribed by another statute. The defendants
in the Wall case made a similar argument in an effort to
get the federal court to abstain from decision. The Court
rejected the argument:
It is true that there are certain issues of state law
in the case which, if decided favorably to the plain-
tiffs, would dispose of the case. For example, plain-
tiffs argue that the rules they challenge are beyond
the scope of legislative authority which has been
delegated to the board by the legislature. If this con-
tention were upheld, the rules would be struck down
and the other issues in the case would be moot. But
that is not enough. It is true in many cases that there
are state law contentions which could dispose of
the case. The fact remains that plaintiffs allege a
violation of their federal constitutional rights, for
which violation Congress has provided a forum in
the federal courts.
379 F. Supp. at 183. In effect, the court below might as
well have “abstained” from addressing the constitutionality
of § 2.02, even though no party requested abstention or
equitable restraint, for in its reliance on the Board's ap-
parent lack of rulemaking authority the trial court, for
all practical purposes, abdicated the question presented.
The trial court also overlooked the uncontroverted facts
that, authorized by state law or not, the Texas Optometry
Board promulgates substantive “Interpretations” of the
Optometry Act, distributes those “Interpretations” to
regulated licensees and dispensing opticians, advises those
40
persons that action may be taken against them for viola-
tions of the “Interpretations”, and — according to TOA
members of the Board — relies on the “Interpretations”
for guidance in “enforcement”, “investigation” and “in
any action the Board may take”. (Friedman depo. 40).
For its final distinction of Wall and Gibson, the trial
court indicated that it found significant the fact that in
thoses cases all optometry board members were also mem-
bers of a state association akin to TOA, whereas in Texas
one-third (numerically.two) of the present Optometry
Board members do not belong to TOA. 438 F. Supp. at
433. For a variety of reasons this distinction is immaterial
to the procedural due process deficiency of § 2.02 of the
Texas Optometry Act.
In the first place, § 2.05(c) of the Act provides that
four members shall constitute a quorum for transaction
of Board business. Thus, a quorum for any action they
desire to take is present any time the four TOA members
attend a Board meeting. If TOA does not desire certain
action to be taken by the Board, then it is a simple mat-
ter for any three of its TOA members to miss the meet-
ing, as occurred continuously for two years between 1967
and 1969 until the Texas Legislature succumbed to TOA’s
demand for control of the Board. (See Rogers depo. I at
79-80).
Next, four TOA votes are always sufficient against
one or two non-TOA votes to effect official Board action
and policy as TOA wants it. The Optometry Board’s
“Interpretations” concerning advertising and mode of
practice, described previously, provide prominent ex-
amples. Other examples, consisting of about sixty 4-2
votes, TOA against non-TOA, relating to various mode of
41
practice issues, may be found in the official Minutes of
the Texas Optometry Board from 1969 through 1975.
Those Minutes, which are part of the record, are simply
too voluminous to be sensibly condensed in this brief.
Third, the trial court failed to take account of the
fact that, although § 2.02 does not vest TOA with 100%
of the Board seats, it still fails to allow Board member-
ship to any dispensing optician who is not also licensed
as an optometrist. This holds true even though the Op-
tometry Board regulates dispensing opticians. Meanwhile,
the interests of those regulatees certainly cannot be said
to be served, reflected or even respected by the TOA
supermajority, for TOA’s Code of Ethics and Rules of
Practice strictly prohibit any member from publicizing or
holding himself forth as an optician.
Of utmost importance, however, § 2.02 erects a scheme
that insures that in any disciplinary or delicensing pro-
ceeding a non-TOA defendant will be judged by a clearly
biased Board, a minimum two-thirds majority of which
will also have substantial pecuniary interests at stake.
Under the record before this Court there can be no room
for doubt that the four TOA members could not consti-
tutionally sit in judgment of a non-TOA optometrist or
dispensing optician in an adjudicative matter. The pro-
ceeding itself, infected by the “professional” bias and
economic interest of the TOA supermajority, would vio-
late the procedural due process holdings of Gibson and
Wall, supra.
It is simply inconceivable that all four TOA members,
having consciously, deliberately promised to abide by the
AOA-TOA Codes of Ethics and Rules of Practice as
reflecting the best interests of optometrists and the public,
42
could lay their philosophical biases entirely aside when
serving as Optometry Board members. The evidence
establishes that they have not been able to do so over
the past nine years. Compare Taylor v. Hayes, 418 U.S.
488, 501-02 (1974) with Hortonville Joint School Dist.
No. 1 v. Hortonvillle Education Assn., —U.S.— 96
S.Ct. 2308, 2314 (1976) and Withrow v. Larkin, 421
U.S. 35, 54-55 (1975). It is equally inconceivable that
those TOA Board members could avoid all “substantial”
pecuniary interest. According to this Court’s decisions,
“Every procedure which would offer a possible temptation
to the average man as a judge . . . not to hold the balance
nice, clear and true between the State and the accused
denies the latter due process of law”. Tumey v. Ohio,
273 U.S. 510, 532 (1927); In re Murchison, 349 U.S.
133, 136 (1955). And as Judge Morgan observed in
Wall, “Those patients would go somewhere, and there
is a substantial likelihood that many of them would go
to the [TOA Board members] with their patronage”. 379
F. Supp. at 188-89.
It therefore follows, necessarily, that the four TOA
members of the Texas Optometry Board could not consti-
tutionally sit in judgment of their principal competitor,
Dr. Rogers, who is himself a Board member with over
twenty successive years of distinguished service. Yet it is
against Dr. Rogers that the TOA supermajority’s threats,
notices, charges, demands, hearings and pleas for legal
action have repeatedly been brought and currently pend.
(See Appendix “A” to this brief).
In the trial court the Appellees, as defendants, argued
that the problem could be cured by two TOA members
“disqualifying themselves.” (Defendants’ Trial Brief at
43
24). Such an offer is nothing less than a judicial ad-
mission of bias and economic interest on the part of the
Optometry Board’s TOA members. It also overlooks
the requirement of state law that four members are neces-
sary for a quorum, not to mention that a similar offer
was held “not good enough” in Wall. 379 F. Supp. at
189. Furthermore, as the Court below correctly observed,
“a constitutionally fatal bias in the statutory composition
of a tribunal is not necessarily remedied by an offer of
that tribunal to abdicate its statutory function.” 439 F.
Supp. at 434.
There can be no question that Dr. Rogers’ offices
have hundreds of thousands, perhaps millions, of opto-
metric patients and that he operates the largest dispensing
opticianry firm in the State of Texas. If his license or
his good name and reputation were placed in jeopardy—
even temporarily, directly or indirectly—at the instance
of the Optometry Board’s four TOA members, those
patients and customers would surely go somewhere—
many in all likelihood to the TOA Board members—for
examinations, lenses and frames. Conclusively, this risk
of pecuniary interest is sufficiently “substantial” under
Gibson, Wall, Tumey and Ward v. Village of Monroe-
ville, 408 U.S. 57 (1972), to peremptorily disqualify all
four of the Texas Optometry Board’s TOA members
from instituting or instigating any action of an adverse
nature against Dr. Rogers, in any manner whatever.
The potential for abuse is greatly multiplied by TOA’s
intransigent philosophical bias against Dr. Rogers’ “com-
mercial” mode of practice.
In summary, the distinctions drawn by the Court below
deserve no weight, for as between Dr. Rogers and the
44
Board’s perpetual TOA supermajority there is no way
to escape the procedural due process defect. Dr. Rogers’
only meaningful recourse is to the federal courts for pro-
tection of his license, which is “property,” see Bishop v.
Wood, 426 U.S. 341, 344 & n. 7 (1976) and House of
Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 657 (Tex.
1965), and for protection of his good name and repu-
tation, which constitute “liberty.” Board of Regents v.
Roth, 408 U.S. 564, 573-74 (1972). An opportunity to
“clear his name” before the Board as it is presently com-
posed would represent a wasteful and meaningless exer-
cise. The problem is not remedied by the availability of
judicial review, de novo or otherwise, in a state court.
Gibson, supra, 411 U.S. at 577 & n. 16. Section 2.02
of the Texas Optometry Act is, therefore, a due process
derelict. The Attorney General of Texas, however, joined
by TOA, chooses to persist in defending § 2.02. See also
Attorney General’s Opinion No. H-607 (1974). Accord-
ingly, the claims, defenses and interests of all parties
are fully displayed, the issues are ripe, and § 2.02 is now
due to be declared unconstitutional.
The only palpable obstacle to the relief now sought by
Appellants is this Court’s memorandum summary affirm-
ance, 419 U.S. 888 (1974), of the three-judge court’s
entire judgment in Wall, by which the court below ap-
parently felt itself bound to some degree under Hicks
v. Miranda, 422 U.S. 332 (1975). Among a variety of
other complaints, the plaintiff optometrists in Wall had
challenged certain rules, adopted by the Georgia State
Board of Examiners in Optometry, that prohibited the
practice of optometry in an office for less than four hours
per week and further prohibited the practice of optometry
in an office “reasonably identifiable” with a mercantile
45
establishment, retail optical house or dispensing optician.
379 F. Supp. at 179-80 & n. 5.
Those rules, which were adopted by the Georgia board
after notice and hearing in apparent compliance with all
federal and state due process requirements, were attacked
on the grounds that they were beyond the state’s power
in violation of substantive due process; that they were
penal in nature and void for vagueness; that they confis-
cated plaintiff's property without due process; and that
they exceeded the scope of the state legislature’s delegable
powers. 379 F. Supp. at 187-88.
Relying on Williamson v. Lee Optical of Oklahoma,
348 U.S. 483 (1955) and North Dakota State Board of
Pharmacy v. Snyder’s Drug Stores, 414 U.S. 156 (1973),
the three-judge court rejected plaintiffs’ arguments and
held that the rules themselves, though enacted by a fatally-
interested board that was constitutionally incompetent to
enforce them, represented a valid exercise of state police
power. 379 F. Supp. at 188, 190-91. It was in connection
with this holding that the Wall court issued its gratuitous
comment, quoted by the trial court in this case, that there
is “no federal constitutional requirement to the effect that
legislators and rule makers must be free of bias or in-
terest.” Jd. at 180 (Emphasis in original).
The Appellees herein would now have this Court con-
clude that, by its unexplicated summary affirmance of
Wall, this Court necessarily decided that the Georgia
board’s composition was not unconstitutional, or other-
wise this Court would not have left standing the portion
of the judgment that upheld the validity of the board’s
rules. For the following reasons, however, Appellees’ con-
tention is inapplicable in the context of this case or, al-
46.
ternatively, this Court’s summary affirmance in Wall was
incorrectly entered and the portion of the Wall result now
in question ought not be extended to this case.
First, the thrusts of both the complaint and the holding
in Wail with respect to the board’s rules was the scope of
substantive state police power. The Wail plaintiffs also
attacked the board’s composition on procedural due proc-
ess grounds, but this challenge implicated the chailenged
board rules only in that it happened to be those rules
that the unconstitutionally-composed board intended to
apply and enforce. From a procedural due process stand-
point the Georgia board might as easily have sought to
enforce some other rule or, as in Gibson, a state statute
restricting certain optometrists’ mode of practice. See 411
U.S. at 567-68. Such a difference certainly would not have
affected the outcome of the procedural due process litiga-
tion. By the same token, the outcome under Williamson
and Snyder's Drug Stores probably would have been the
same if some other rule or statute had been challenged
on substantive grounds, unless such other rule or statute
also violated the First Amendment and was challenged
on that basis as well. Cf. Virginia Pharmacy, supra, 425
U.S. at 755-56 & n. 13.
Under the foregoing analysis the three-judge court’s
decision and this Court’s summary affirmance in Wall are
explicable on principled grounds. This Court has had
occasion to observe that “[al]scertaining the reach and
content of summary actions may itself present issues of
real substance . . .” Hicks v. Miranda, supra, 422 U.S. at
345 n. 14. Further, a summary affirmnce by this Court
merely affirms the judgment and resolves the issues be-
tween the parties, “but not necessarily the reasoning by
which it was reached.” Fusari v. Steinberg, 419 U.S. 379,
47
391-92 (1975) (Chief Justice Burger concurring). The
thrust of the complaint and the appeal in this case differs
significantly from the portion of Wall under present con-
sideration. In this case Appellants have not contended
that any rule, “Interpretation” or other exercise of police
power by the Texas Optometry Board or, indeed, by the
Board’s TOA supermajority, exceeded substantive con-
stitutional limitations.
Accordingly, Appellants herein need not attack, de-
fend or otherwise address the sweeping assertion that the
Constitution does not require lawmakers to be free of
bias or interest, except to demonstrate its irrelevancy.
Specifically, the problem in this case is the same one that
confronted the courts in Gibsons a “State Board of Op-
tometry . . . so biased by prejudgment and pecuniary in-
terest that it could not constitutionally conduct hearings
looking toward the revocation of [Appellant’s] licenses to
practice optometry.” 411 U.S. at 578.
The Texas Optometry Board itself is a procedural due
process nullity. This condition will persist for so long as
TOA continues to insist that its members employ no
“commercialism,” for so long as AOA and TOA actively
oppose all forms of advertising and “commercialism,” for
so long as the “local societies” of TOA continue to refuse
membership to optometrists (and dispensing opticians)
whose practices are perfectly lawful but are tainted by
“commercialism,” and for so long as the Texas Legislature
suborns and institutionalizes this system of anticompeti-
tive discrimination by vesting TOA with perpetual super-
majority control over the regulatory licensing Board. One
or the other TOA or § 2.02 of the Texas Optometry
Act — has to fall. Section 2.02 is within the reach of
48
the Due Process Clause and of this Court; TOA, by itself,
is not. Therefore, the state statute, in a constitutional
sense, is the offender and is due to be struck down.
Second, but in the alternative, this Court erred by
summarily affirming the entire judgment in Wall. If these
cases are to be characterized categorically, and the cate-
gorical question to be asked is whether “legislators and
rule makers must be free of bias or interest,” then the
correct answer must be “sometimes.” Specifically, the
answer must be in the affirmative in this case. Surely the
Due Process Clause imposes some limits on the extent
to which a state can authorize private parties to exercise
the powers of government for their especial benefit and
thereupon wash its hands of repressive, discriminatory
or anticompetitive consequences. Cf. Marsh v. Alabama,
326 U.S. 501 (1946); City of Eastlake, supra,
U.S. at , 96 S.Ct. at 2364; Goldfarb v. “irginia
State Bar, 421 U.S. 773, 791-92 (1975). This case af-
fords this Court an opportunity to indicate those limits, in
the event the Court finds Wall indistinguishable.
Upon plenary consideration of cases before it, this
Court is not bound by principles of stare decisis to follow
or extend its own prior summary affirmances. Gibson v.
Berryhill, supra, 411 U.S. at 576-77; Colorado Springs
Amusements, Ltd. v. Rizzo, USS. , 96 S.Ct.
3228 (1976) (Brennan, J., dissenting from denial of
certiorari); Fusari v. Steinberg, supra (Chief Justice Bur-
ger concurring). Those dispositions “are not of the same
precedential value as would be an opinion of this Court
treating the question on the merits.” Edelman v. Jordan,
415 U.S. 651, 671 (1974). Thus, in no event can Wall
foreclose a thorough consideration of the procedural due
process issues presented by this case.
eS ee
49
Following such consideration, Appellants respectfully
submit, this Court will be firmly satisfied that § 2.02 of
the Texas Optometry Act denies Appellant, Dr. N. Jay
Rogers, procedural due process of law, for which reason
the applicable portion of the judgment below should be
reversed or, alternatively, vacated and remanded for fur-
ther proceedings consistent with the Court’s opinion.
IV.
THE REQUIREMENT THAT AT LEAST TWO-
THIRDS OF THE BOARD BE MEMBERS OF
TOA INFRINGES UPON THE SENIOR CITI-
ZENS’ FIRST AMENDMENT RIGHTS TO
RECEIVE VALUABLE COMMERCIAL
INFORMATION
The Senior Citizens successfully challenged § 5.09(a)
of the Act, a prohibition of price advertising by optome-
trists, before the three-judge court. The three-court judge
based its holding that § 5.09(a) is unconstitutional on the
case of Bates v. State Bar of Arizona, USS. ,
97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). The Senior
Citizens also challenged § 2.02 on First Amendment
grounds but this claim was dismissed as moot by the
three-judge court in view of its ruling on § 5.09(a). 438
F. Supp. at 432 n. 4. However, although § 5.09(a) has
been declared unconstitutional, the challenged portion of
§ 2.02 still serves as an impermissible restraint on the
First Amendment rights of the Senior Citizens to receive
valuable price information from optometrists.
By vesting a perpetual minimum two-thirds majority of
the Texas Optometry Board in TOA, § 2.02 effectively
insures that at all times at least two-thirds of the Board
a
50
members will faithfully adhere to and propogate the AOA-
TOA Codes of Ethics and Rules of Practice. All TOA
members are bound to continue to abide by those rules
pursuant to the By-Laws of TOA, Article XIV, § 1 (13).
The supplement to the AOA Code of Ethics deems un-
ethical:
Advertising of any character, which includes or con-
tains any fee whatsoever, or any reference thereto,
or any reference to the cost to the patient, whether
related to the examination or the cost or fee for
lenses, glasses, frames, mountings or any other op-
tometric services, article or device necessary for the
patient. (App. 406).
Thus, superinajority control of the Board is irreversibly
vested in an organization that strictly prohibits its mem-
bers from engaging in any form of price advertising. By
giving its imprimatur to TOA, the State of Texas en-
courages membership in a private organization of pro-
viders that denies its members the right to engage in
truthful price advertising of the goods and services they
provide. Any action by the state that contributes to the
strength and growth of TOA correspondingly decreases
the amount of protected commercial information that can
be received by the Senior Citizens, in spite of their First
Amendment right to receive it freely. Virginia Pharmacy,
supra; Bates, supra.
When candidates for licenses to practice optometry
must be approved by a TOA-dominated Board and when
practicing optometrists can lose their licenses on the vote
of the four TOA members of the Board, the state has
placed direct and substantial pressures on those candi-
dates and licensees to conform their behavior to the
51
mode of practice for which TOA stands. These pressures
are not merely theoretical, but are very real. (See Depo-
sition of Dean Chester Phieffer at 7-8, 16, 26, 30, 33-34,
46-47, 59). And conformity to the TOA mode of practice
means foregoing all advertising, including price advertis-
ing. By this network of formal and informal restraints the
State of Texas has seriously eroded the First Amendment
rights of the Senior Citizens to receive protected price
information concerning optical goods and services. There
has been no showing by the state or by TOA that those
restraints are necessary to deal with some evil that the
state may legislate to correct. Accordingly, the Senior
Citizens are entitled to have § 2.02 stricken on First
Amendment grounds.
In the case of United Mine Workers v. Illinois State
Bar Association, 389 U.S. 217 (1967), this Court in-
validated a decree enforcing a state’s policy against
unauthorized law practice even though the decree did not
directly affect anyone’s exercise of constitutionally pro-
tected rights. The vice found in the decree was that it
substantially impaired the First Amendment rights of a
labor union by prohibiting the union from employing
salaried attorneys to represent its members in connection
with workers’ compensation claims. There was no show-
ing that this prohibition was necessary to protect the
state’s interest in high standards of legal ethics.
Similarly, § 2.02, although perhaps it does not directly
deny protected First Amendment rights, substantially
impairs the rights of the Senior Citizens to receive valu-
able commercial information. The state has deliberately
vested the power to control the licensure of optometrists
and the enforcement of the Optometry Act in an organi-
zation whose members are prohibited by its Codes of
52
Ethics and Rules of Practice from disseminating the com-
mercial price information to which the Senior Citizens
are constitutionally entitled. The state explicitly extends
its blessing to TOA and implicitly encourages TOA
membership. The state thereby endorses TOA’s price
advertising restrictions, prohibitions that would violate
the First Amendment if enacted by the state directly.
The state has nowhere shown that § 2.02’s requirement
that at all times at least two-thirds of the Board members
be TOA members is necessary to protect its interests in
maintaining high professional standards among optome-
trists. High professional standards are substantially guar-
anteed by a variety of other statutes with which Appel-
lants herein have no quarrel. (See Motion to Affirm
filed by Dr. N. Jay Rogers and the Senior Citizens in
Nos. 77-1163 and 77-1186 at 24-27). Yet, that require-
ment operates to impair substantially the rights of the
Senior Citizens to receive truthful price information from
easily half, or at least 480, of the state’s optometrists.
Since § 2.02 thereby denies the Senior Citizens their
First Amendment rights its unconstitutionality must be
declared and its enforcement must be enjoined.
V.
THE REQUIREMENT THAT “AT ALL TIMES
AT LEAST TWO-THIRDS” OF THE BOARD
MUST BE TOA MEMBERS CONFLICTS
WITH § 1 OF THE SHERMAN ANTITRUST
ACT AND THEREFORE VIOLATES THE
SUPREMACY CLAUSE OF THE UNITED
STATES CONSTITUTION
In pertinent part, Article VI of the Constitution pro-
vides:
53
This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof:
. . . Shall be the Supreme Law of the Land; * * * *
The relevant law of the United States is § 1 of the Sher-
man Act, 15 U.S.C. § 1, which declares illegal:
Every contract, combination in the form of trust
or otherwise, or conspiracy, in restraint of trade or
commerce among the several states, * * * *
It should now be clear that this Court’s landmark
decision in National Society of Professional Engineers v.
United States, _. U.S. _, 98 S. Ct. 1355, __ L.Ed.2d _
(April 25, 1978), rendered eight days after this Court
noted probable jurisdiction in this case, lays a valid
predicate for seriously questioning the composition of the
Texas Optometry Board, as prescribed by § 2.02 of the
Optometry Act, from a pure Supremacy Clause stand-
point as well as from the originally-urged due process,
equal protection and free speech perspectives. The emer-
gence of the Supremacy Clause in all likelihood offers
a viable ground upon which § 2.02 may be tested without
the necessity to reach the substantive constitutional issues.
The conflict between § 2.02 of the Texas Optometry
Act, which irrevocably bestows the powers of government
upon a private corporate organization whose “ethical”
canons openly and notoriously forbid virtually all forms
of advertising and commercialism in optometry, and the
most basic policies underlying § 1 of the Sherman Act
is manifestly obvious. In Professional Engineers this
Court found a flagrant violation of § 1 of the Sherman
Act in a professional society’s “ethical” rule that pro-
54
hibited “the submission of any form of price information
to a prospective customer which would enable that cus-
tomer to make a price comparison on engineering serv-
ices.” ___ U.S. at ___., 98 S. Ct. at 1361, ___L .Ed.2d
at. (Footnote omitted).
No less than the anti-competitive bidding rule invali-
dated by this Court in Professional Engineers suppressed
price competition among the society’s members and
thereby denied cunsumers the benefits of free and open
competition, the Codes of Ethics and Rules of Practice
of AOA-TOA prohibit all price adveriising, most adver-
tising of any other type, the number of offices (no more
than three) in which a member may hold an interest,
the locations of offices, the use of signs and displays, and
the transaction of business as a dispensing optician. (App.
399-416). Moreover, TOA takes great pride in its mem-
bers’ rigid observance of these AOA-TOA competitive
restrictions. See Motion to Affirm or Dismiss filed herein
by TOA, at 10, 17-18.
In this very case the intervenors-Appellants, W. J.
Dickinson, individually and as President of the Texas
Senior Citizens Association, Port Arthur, Texas Chapter,
have the requisite standing to press a Supremacy Clause
challenge to § 2.02 of the Texas Optometry Act. As rep-
resentative members of the prescription eyewear-consum-
ing public in Texas, the Senior Citizens are denied valu-
able competitive information and techniques that one-half
(or about 480 to 500) of all Texas-licensed optometrists
—i.e., those who belong to TOA—would be free to dis-
seminate and utilize both as a matter of federal antitrust
law and the First Amendment but for the restrictions con-
tained in the AOA-TOA Codes of Ethics and Rules of
55
Practice. See Virginia Pharmacy, supra, 425 U.S. at
756-57 and cases cited. There can likewise be no serious
question that those restrictions “substantially affect” in-
terstate commerce under the test enunciated in Hospital
Building Co. v. Trustees of Rex Hospital, 425 U.S. 738
(1976), in that they tend to suppress activity in the
marketplace for ophthalmic merchandise and ophthalmic
equipment, most of which is manufactured in and shipped
from states other than Texas. And as Dr. Lee Benham
testified, without contradiction or equivocation:
Consumers benefit from having more information
about their options. If they do not know about al-
ternatives, they cannot respond to them. If the
amount of information to consumers is limited, it
has the effect of reducing competition which results
in higher prices to consumers.
(App. 335).
The Senior Citizens now desire to assert that the State
of Texas, through § 2.02 of the Texas Optometry Act,
may not “retard, impede, burden, or in any manner con-
trol, the operation of the laws [in this case the Sherman
Act] enacted by Congress.” McCulloch v. Maryland,
4 Wheat. 316, 436, 17 U.S. 316, 436 (1819). Section
2.02 is invalid under the Supremacy Clause because it
“stands as an obstacle to the accomplishment and execu-
tion of the full purposes and objectives of Congress.”
Perez v. Campbell, 402 U.S. 637, 649 (1971): Hines v.
Davidowitz, 312 U.S. 52, 67 (1941).
Appellants respectfully suggest that the unfolding Su-
premacy Clause features of this case possess convincing
meri.. Nonetheless, Appellants fully realize that those
56
merits ought to be, but have not been, considered in the
first instance by the trial court. Upon their consideration
certain subsidiary issues—for example, the relevance of
the “state action” antitrust exemption of Parker v. Brown,
317 U.S. 341 (1943), as limited in Goldfarb, supra, 421
U.S. at 791-92, and Cantor v. Detroit Edison Co., —~
U.S.__, 96 S.Ct. 3110, ___L.ed.2d___._ (1976) —are
likely to arise. This Court is not in a position to resolve
those matters without the benefit of additional proceed-
ings, findings of fact and conclusions of law in the lower
court. Accordingly, Appellants respectfully urge this Court
to remand the case to the trial court for further proceed-
ings. The three-judge court may then assign the Supremacy
Clause question to a single District Judge for decision
in accordance with Rosado v. Wyman, 397 U.S. 397, 403
(1970), and Swift & Co. v. Wickham, 382 U.S. 111
(1965).
In urging this Court to remand, Appellants do not seek
a novel disposition of the case. Specifically, 28 U.S.C.
§ 2106 provides that, incident to its appellate jurisdiction,
this Court has the power to “vacate . . . any judgment”
brought before it and to “remand the cause” and to
“require such further proceedings to be had as may be
just under the circumstances.” This Court has stated that
the provisions of this section are broad enough to give
much latitude in fashioning its response to a motion for
remand, United States v. Shotwell Manufacturing Co.,
355 U.S. 233 (1957), and has recognized that in the
exercise of its appellate jurisdiction the Court is bound
to recognize any change in law or in fact which has
supervened since the entiy of the judgment before it.
Patterson v. State of Alabama, 294 U.S. 600 (1935).
57
When a potentially-controlling decision of this Court
is rendered after the judgment in the case before it for
review, the subsequent decision can constitute such a
change in law as to justify a remand for further pro-
ceedings. In re Whittington, 391 U.S. 341 (1968), is an
example of a case where this Court remanded in order
for the state supreme court to conduct further proceedings
in light of the decision of Jn re Gault, 387 U.S. 1 (1967).
The logic of Whittington is made even more compelling
in this case since the supervening change in decisional
law presents a non-constituiional ground for decision. Cf.
Ashwander v. TVA, 297 U.S. 288, 346-47 (1936)
(Brandeis, J., concurring).
The case of Youakim v. Miller, 425 U.S. 231 (1976)
presents a set of facts very similar to those currently
before the Court. There the Court vacated and remanded
to the three-judge court for further consideration in light
of a subsequent Department of Health, Education. and
Welfare Program Instruction and the Supremacy Clause
of the United States Constitution. The HEW instruction
was issued after the filing of appellants’ Jurisdictional
Statement in Youakim. The appellants had not presented
the Supremacy Clause question to the District Court just
as Appellants did not present the Supremacy Clause issue
to the three-judge court in this case. Still, this Court
vacated and remanded consistent with its “usual practice
of avoiding decisions on constitutional matters if a case
can be resolved on other grounds.” 425 U.S. at 236.
By this Court’s vacating and remanding the judgment, the
District Court is required first to decide any statutory
issue instead of first deciding the constitutional issues.
Hagans v. Lavine, 415 U.S. 528 (1974).
PS Miser no we ee
5$
The decision of this Court in Professional Engineers
provides a nonconstitutional ground for decision in this
case. Accordingly, it would be proper for this Court to
remand to the three-judge court, with instructions to assign
the case to a single District Judge, for consideration of
the Supremacy Clause question.
CONCLUSION
For the reasons stated it is respectfully prayed that the
judgment of the three-judge court upholding the portion
of § 2.02 of the Texas Optometry Act that requires a
minimum of two-thirds of the members of the Texas
Optometry Board to be members of TOA be reversed
and judgment rendered that such portion is unconstitu-
tional under the First and Fourteenth Amendments to
the United States Constitution. In the alternative, Ap-
pellants respectfully submit that this cause should be
remanded to the three-judge court or to a single district
judge for further proceedings in view of the enforcement
proceedings the Board currently seeks to institute against
59
Dr. Rogers and in view of this Court’s Professional
Engineers decision and the Supremacy Clause issues.
Respectfully submitted,
By:
ROBERT Q. KEITH
BRIAN R. Davis
Victor J. Rocers, II
ARTHUR R. ALMQUIST
Counsel of Record
Of Counsel:
MEHAFFY, WEBER, KEITH & GONSOULIN
1400 San Jacinto Building
Beaumont, Texas 77701
DELEON & DAvis
408 First Federal Plaza
Austin, Texas 78701
Victor J. RoGers, II
3434 One Allen Center
Houston, Texas 77002
60
CERTIFICATE OF SERVICE
‘I hereby certify that three (3) copies of the foregoing
Brief for Appellants in No. 77-1164 have been mailed,
postage prepaid, this day of June, 1978 to the
following:
Larry Niemann
1210 American Bank Tower
Austin, Texas 78701
John Tucker
P. O. Box 1751
Beaumont, Texas 77704
Dorothy Prengler
Attorney General of Texas
P. O. Box 12548
Austin, Texas 78711
pee
61
APPENDIX “A”
STATE OF TEXAS )
)
COUNTY OF TRAVIS _)
This is to certify that I, Lois Ewald, an Executive Sec-
retary of the Texas Optometry Board and in such capacity
have the custody and control of the Board’s records, and
I hereby certify that the attached is a copy of a carbon
copy file record of cerrespondence dated May 15, 1978,
addressed to the Honorable John Hill, Attorney General
of Texas.
/s/ LOIS EWALD
Lois Ewald
Date: May 31, 1978
(SEAL)
62
May 15, 1978
Honorable John Hill
Attorney General of Texas
Supreme Court Building
P. O. Box 12548
Capitol Station
Austin, Texas 78711
Attn: David Kendall
Dear Sir:
The Texas Optometry Board is of the opinion that Section
5.11 of the Texas Optometry Act is valid and intact.
Therefore, the Board requests that you enforce said section
as it applies to the Texas State Optical office at 7125
Southwest Freeway in Houston, Texas; the means and
timing of the enforcement is, of course, left to your dis-
cretion.
We understand that the facts of the matter are not in
dispute, i.e., the Texas State Optical is a one-door office
with a window display.
We are enclosing a copy of the investigative material
and correspondence in regard to the matter.
Very truly yours,
E. Richard Friedman, O.D.
Chairman of the Board
ERF/le
Encl.
cc: All Board Members
(SEAL)
SeuareraE Era
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.