# brief for appellant — Rogers v. Friedman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0873%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** brief for appellant - **Published:** January 1, 1978 - **Citation:** 435 U.S. 967 ## Text 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 SD MD 6.web 660 esesdedsecded seciosevdewssvions DL © 660KU ds 66:000W nd 64660066000 oeueecsse06eee EY EE Wiebe wie 666-5Sh.N6e6050deaseceseseees SE EE Stndibeedsuceeded bantuseséesceteces RR TE ee ne oe EERE ee Ge CE Seed dGevebcdesdedeeseeesdcdes Dt (sieLiitde heb cotdanate ones 6eengneebie saeaes 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) Pe BED ic scccckccdssettcdscctcusccesias cited throughout PO BENGE cc cccccccrcccsecsesstcceseescvvecces 40 i ee ke ewe iebideenaeseeusedues 4 0 RE re ee ee re ee re 5 ds ee olde dienddeeeeeneetnaewe® 5 EE eo ad ee ieee a uigeb cere tage Gets 5, 32,38 a a eee Eee ry ere 4 Ne et Oe Oi seat ence awa 4 ere re eee TP ee ee 4 ED oie Lads ata de Cedi geeds degedels saad 5 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 EE a eT ee ee 31 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0873%3A4. Public record. Not legal advice.