Opposition Brief — Plowman v. Massad

(9 , Supreme Court U.S.

FILED

No. 95-684 NOV 27 1995

IN THE | twee

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1995

PAUL PLCOWMAN,

Petitioner,

versus

JOSEPH J. MASSAD, JAMES LIMESTALL,

FRED LUCAS, ED GARRETT, JAMES FARLEY,

BRAD HOOPES, L.D. WHITLOCK, WILLIAM SMITH,

BONNIE FLANIGAN, BEULAH HOUSTON-VERNON,

and DARLA SHURTZ, individually and in their

Official Capacities, and their Successors,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

W. A. DREW EDMONDSON

ATTORNEY GENERAL OF OKLAHOMA

W. CRAIG SUTTER

ASSISTANT ATTORNEY GENERAL

(Counsel of Record)

4545 N. Lincoln Suite 260

Oklahoma City, OK 73105-3498

(405) 521-4274

November 27, 1995

) BEST AVAILABLE COPY |

QUESTIONS PRESENTED FOR REVIEW

1. Was the Tenth Circuit Court of Appeals correct

in holding that the Reynolds v. Sims, 377 U.S. 533 (1964),

reh’g denied, 379 U.S. 870 (1964) "one rson, one vote”

tule is “irrelevant” to election of the officers of a special

purpose governmental entity?

2. If the Reynolds v. Sims “one person, one vote”

rule is not irrelevant to the election of the officers of a

special Dn pg governmental entity, must the governmental

entity show a justification for not applying the rule?

3. If a justification must be advanced by a special

purpose governmental entity for deviating from the "one

person, one vote" rule, is that subject to review under the

“rational basis" standard, the “strict scrutiny" standard, or

some intermediate standard?

4. Does an administrative agency charged with

regulation of the practice of dentistry throughout the State of

Oklahoma exercise governmental powers of such importance

that it should be considered a general governmental agency

rather than a special purpose entity for determining the

application of the Reynolds v. Sims “one person, one vote"

rule to the election of its Board members’

- 3 Did the Tenth Circuit improperly expand and

apply this Court’s summary affirmance of Sullivan v.

Alabama State Bar, 295 F.Supp. 1216 (M.D. Ala. 1969)

aff'd without opinion 394 U.S. $12 (1969) in a way that

conflicts with this Court’s more specific decisions and

binding precedent?

ii

Page

OPINIONS AND JUDGMENTS BELOW ...... 1

STATUTORY PROVISIONS INVOLVED ..... 1

STATEMENT OF THE CASE ............ 5

SUMMARY OF ARGUMENT ...........+.-. 7

ARGUMENT .. 66.00 6 eC ct ewe des Vee es 8

I. THE "ONE PERSON, ONE VOTE" DOCTRINE

DOES NOT APPLY TO A SPECIAL PURPOSE

UNIT OF GOVERNMENT, SUCH AS THE BOARD

OF GOVERNORS OF REGISTERED DENTISTS

OF OKLAHOMA. .icsccccccccccces 8

Il. STRICT OR HEIGHTENED SCRUTINY IS NOT

APPLICABLE IN THIS CASE. ......... 18

Ill. PETITIONER HAS NOT ESTABLISHED THAT NO

RATIONAL BASIS EXISTS FOR THE MANNER

IN WHICH THE EIGHT GEOGRAPHIC

DISTRICTS UNDER SECTION 328.8 ARE

DRAWN. wcccccccsccsesessescene 20

IV. THE TENTH CIRCUIT DID NOT IMPROPERLY

EXPAND THE APPLICATION OF SULLIVAN V.

ALABAMA STATE BAR. ....-2.ecceee 26

CONCLUIBOUN cccccvcccisevevev seers 29

APPENDIX

ill

Page

Cases Cited

Anderson v. Celebrezze, 460 U.S. 780 (1983) .. 19, 26

Avery v. Midland County, 390 U.S. 474 (1968) .. 9, 13

Ball v. James, 451 U.S. 355 (1981) ...... 11, 18, 29

Benner v. Oswald, 592 F.2d 174 (3rd Cir.)

cert. denied, 444 U.S. 832 (1979) ............ 14

Board of Estimate v. Morris, 489 U.S. 688 (1989) .. 9

Carmichael v. Southern Coal & Coke Co., 301 U.S. 495,

a7 aes woe, Os Le. 8265 (1967)... ......... 22

Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S.

SERS EE SIS aa eae 17

Dandridge v. Williams, 397 U.S. 471, (1970),

reh’g denied, 398 U.S. 914 (1970) ............ 22

FCC v. Beach Communications, Inc., 113 S.Ct. 2096

EES a aE Ry SNES See eon 19, 21

Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367,

RS eae ee 21

Hadley v. Junior College District,

I Se ee 9, 11. 13, 18

Hodel v. Indiana, 452 U.S. 314, 101 S.Ct. 2376,

a a 21

iV

Kramer v. Union Free School Dist.,

See Ws Ce ES bs wits Sa 6 ask who cae ae 19, 20

Lenhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 35

La Gs Oe ae Dee GEPUED 6 vows eee teu 21

Lockport v. Citizens for Community Action

at Local Level, Inc., 430 U.S. 259 (1977)..... 15, 16

Lyng v. Automobile Workers, 485 U.S. 360,

99 L.Ed.2d 380, 108 S.Ct. 1184 (1988) ......... 21

Minnesota v. Clover Leaf Cramery Co., 449 U.S. 456,

101 S.Ct. 715, 66 L.Ed.2d 659 (1981).......... 22

Nordlinger v. Hahn, 505 U.S. __, __,

112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) .......... 22

Phoenix v. Kolodziejski, 399 U.S. 204 (1970) .. 15, 16

Plowman v. Massad, 61 F.3d 796 (10th Cir. 1995). .. 1,

5, 26

Quinn v. Millsap, 491 U.S. 95 (1989) ....... 16, 18

Reynolds v. Sims, 377 U.S. 533 (1964),

reh’g denied, 379 U.S. 870 (1964) . 6-15, 18, 26, 29, 30

Rosenthal v. Board of Education, 385 F.Supp. 223

(E.D. N.Y. 1975), aff'd 420 U.S. 985 (1975) ..... 14

Sailors v. Board of Education,

set U.S. Wap eee 6 oe as oes 11, 14, 16, 18, 27

Salyer Land Co. v. Tulare Lake Basin Water Storage

Districs, 410 U.S. 719 (1973)... 5a ee 12, 18, 29

Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984)...... 23

Vv

Sullivan v. Alabama State Bar,

295 F.Supp. 1216 (M.D.Ala.),

aff'd without opinion, 394 U.S. 812 (1969) . 7, 16, 26-29

Turner v. Fouche, 396 U.S. 346 (1970).......... 17

Statutes Cited

foo Se & e 4, 23

Gs I is oo oc oe ce eine os La

oe Oh | a 5, 25

oe ee ek & y 5, 24, 28

Seely Ss a OG TS” oa he eee eee cu dxen 2

Okla. Stat. tit. 59, § 328.8 .... 2,6, 14, 19-21, 23-26

Se, ee es Ts OR shoe's vw ere > wre 0-8 Klee 3

RESPONDENTS’ BRIEF IN OPPOSITION

OPINIONS AND JUDGMENTS BELOW

Plowman v. Massad, 61 F.3d 796 (10th Cir. 1995).

Plowman v. Massad, et al., Case No. CIV-93-

1008-C, United States District Court, Western

District of Oklahoma, Judgment entered on April

25, 1994. App. A.

Plowman v. Massad, et al., Case No. CIV-93-

1008-C, United States District Court, Western

District of Oklahoma, Order entered on April 25,

1994. App. B.

STATUTORY PROVISIONS INVOLVED

Okla. Stat. tit. 59, § 328.2:

The practice of dentistry in the State of Oklahoma is

hereby declared to affect the public health, safety and

general welfare and to be subject to regulation and control

in the public’s best interest. It is further declared to be a

matter of public interest and concern that the dental

profession, through advancement and achievement, merits

and receives the confidence of the public and that only

properly qualified dentists be permitted to practice dentistry

ise dental assistants and/or dental nurses in the

State of Oklahoma. All provisions of this act relating to

the practice of dentistry, the practice of dental hygiene, the

procedures performed by dental assistants and/or dental

nurses, and the fabrication of dental appliances in dental

laboratories by dental laboratory technicians shall be

liberally construed to carry out these objects and purposes.

2

Okla. Stat. tit. 59, § 328.7:

There is hereby constituted a Board of Governors of

the organization to be known as “The Board of Governors

of the Registered Dentists of Oklahoma," consisting of

eight (8) dentist members, one (1) dental hygienist member

and two (2) members who shall represent the public in

general. One dentist member shall be elected from each of

the eight districts. One dental hygienist member shall be

elected by dental hygienists residing in the State of

Oklahoma who are legally licensed to practice dental

hygiene therein. The two public representative members

shall be appointed the Governor, subject to confirmation by

the Senate. The members representing the public may not

be dentists, dental surgeons, dental hygienists or dental

technicians, or be related by blood or marriage within the

third degree to any such person. Each member shall hold

office gp gee of three (3) years and until his/her term

expires or his/her successor is selected and qualified.

Board members shall not serve for more than three (3)

consecutive terms. However, upon this act becoming

effective, the nt members of the Board of Governors

shall hold office until their terms expire and/or their

successors are elected and qualified as hereinafter provided.

The members of the Board of Governors shall be

reimbursed for travel expenses as provided in the State

Travel Reimbursement Act. The Board of Governors, at

its discretion, may affiliate with the American Association

of Dental Examiners as an active member and pay regular

dues to said association and may send no more than two

board members as delegates to regular meetings thereof.

Okla. Stat. tit. 59, § 328.8:

For the purpose of this act, the State of Oklahoma is

divided into eight geographical districts, which districts

shall be designated and shall comprise the following

counties to wit:

3

District No. 1: Cimarron, Texas, Beaver, Harper,

Woods, Alfalfa, Grant, Kay, Ellis, Woodward, Major,

Garfield, Noble, Dewey, Blaine, Kingfisher and Logan.

District No. 2: Tulsa and Creek.

District No. 3: Roger Mills, Custer, Beckham,

Washita, Harmon, Greer, Kiowa, Caddo, Jackson and

Tillman.

District No. 4: Canadian, Grady, McClain,

Comanche, Cotton, Stephens, Jefferson, Garvin, Murray,

Carter and Love.

District No. 5: Oklahoma.

District No. 6: Lincoln, Cleveland, Pottawatomie,

Seminole, Okfuskee, Hughes, Pontotoc, Coal, Johnston,

Marshall and Bryan.

District No. 7: Mayes, Wagoner, Cherokee, Adair,

Okmulgee, Muskogee, Sequoyah, MclIntosh, Haskell,

Pittsburgh, Latimer, LeFlore, Atoka, Pushmataha,

Choctaw, and McCurtain.

District No. 8: Osage, Payne, Washington, Nowata,

Craig, Ottawa, Rogers, Delaware and Pawnee.

Okla. Stat. tit. 59, § 328.9:

Nominations for dentist members of the Board of

Governors from the several districts shall be by petition

signed by at least ten members entitled to vote for such

nominees. Nominations for the dental hygienist member of

the Board of Governors shall be by petition signed by at

least ten dental hygienists entitled to vote for such

nominees. The election shall be by ballot. The ballots

shall be mailed to those entitled to vote at least thirty (30)

days prior to the date of canvassing the ballots and shall be

revo tt mail to the secretary and the ballots shall be

opened canvassed at a meeting of the board. In other

4

respects, the election shall be as the board may by rule

direct. Only members of the organization residing the

respective districts shall be entitled to vote for the dentist

members therefrom. Only dental hygienists residing and

licensed in the State of Oklahoma ] be entitled to vote

for the dental hygienist member. Dentist members of the

Board of Governors may be removed from office by special

election called by the Board of Governors upon receipt of a

written petition signed by at least twenty percent (20%) of

the licensed dental hygienists residing in the State of

Oklahoma. If a majority of the votes cast in the special

election are in favor of recalling the board members,

he/she will be removed from office as of the date of the

results of the ballot canvassing are forwarded to the Board

of Governors.

Okla. Stat. tit. 59, § 328.15:

The organization shall be governed by the Board of

Governors which shall have the power and duties conferred

in the State Dental Act. In addition thereto, the Board of

Governors shall have the power and authority to

promulgate rules and regulations to carry out the provisions

of the State Dental Act as it deems necessary and proper to

protect the dental health of the public. Further, the Board

of Governors shall be charged with:

1. The executive functions of the organization; and

2. Examinations of all candidates; and

3. Enforcement of the provisions of the State Dental

Act; and

4. The inspection of dental offices and dental

laboratories; and

5. The establishment of minimum standards of dental

care by cooperating with the Office of Public Affairs and

other state and federal departments, who maintain dental

facilities or offer dental care to persons in the various state

5

and federal institutions. The Board may enter into

cooperative contracts or agreements with another state or

combination of states for purposes of formulating and

conducting regional simultaneous examinations, such as the

Central Regional Dental Testing Service, Inc., or successor

entity or comparable entities. Board of Governors, on

or before October 1 of each year, shall establish or set,

within limits prescribed in the State Dental Act, all fees to

be collected pursuant to the State Dental Act.

Okla. Stat. tit. 59, § 328.21, provides in part:

No person, unless currently registered to practice

dentistry or dental hygiene in this state at the effective date

of this act, shall begin the practice of dentistry of dental

hygiene for himself, a dentist, any institution or individual

without first applying for and obtaining a license from the

Board of Governors, if the applicant is to practice

dentistry, or a certificate of ability, if the applicant is to

practice dental hygiene. . .

Okla. Stat. tit. 59, § 328.32, provides in part:

Oe ..., Board of Governors shall have power, after a

for any causes now existing in the laws of the State

of 0 Ok ahoma, or for a violation of any acts prohibited

herein, to revoke a license of a dentist to practice dentistry,

or a specialist license of a dentist, or to suspend the use of

the same, or to discipline by probation or reprimand,

public or private; and the Board of Governors shall have

power to pass upon all petitions for reinstatement.

STATEMENT OF THE CASE

Petitioner Paul Plowman, a licensed dentist and a

member of the Registered Dentists of the State of

Oklahoma, brought his action against the Respondent

members of the Oklahoma Board of Governors of

Registered Dentists (hereinafter “Board") challenging the

manner in which the dentists members are selected.

Plowman v. Massad, 61 F.3d 796, 797 (10th Cir. 1995).

6

Section 328.8' of the Oklahoma Dental Act provides that

the eight dentist members on the Board are elected by eight

geographical districts created by the Act. Licensed dentists

of each district elect one licensed dentist from that district

to serve on the Board. The Act also provides that one

dental hygienist Board member is elected by licensed

hygienists throughout the state, and the two unlicensed

Board members are appointed by the Governor of the State

of Oklahoma.

In his Complaint, Petitioner alleged that the method for

electing the eight dentist members to the Board set forth in

the Oklahoma Dental Act violated his right to equal

protection of the law. The eight districts have the

foliowing number of dentists residing therein:

District | - 128 dentists

District 2 - 367 dentists

District 3 - 57 dentists

District 4 - 160 dentists

District 5 - 515 dentists

=e District 6 - 164 dentists

District 7 - 158 dentists

District 8 - 120 dentists

Id. at 797. Petitioner contended that dentists in the more

heavily ulated districts, such as the one for Oklahoma

County in which he resides, are afforded less representation

on the Board. He noted that while 515 licensed dentists in

Oklahoma County are entitled to select one Board member,

licensed dentists in less populated districts are afforded the

same right to select a Board member. /d. at 797.

Petitioner contended that he was denied equal protection of

law because his vote was “diluted” and did not “count” as

much as the vote of a dentist member residing in a district

having fewer dentists members residing therein, relying on

the “one person, one vote" rule set forth in Reynolds v.

Sims, 377 U.S. 533 (1964), reh’g denied, 379 U.S. 870

(1964). The Petitioner sought a declaratory judgment that

‘Okla. Stat. tit. 59, § 328.8.

7

the statutes creating the Board are unconstitutional, and

therefore, the itself is unconstitutional. /d. at 797.

The Petitioner and the Board members all moved for

summary judgment. The district court denied Petitioner's

motion, while granting the Board members’ motion, and

entered judgment in favor of the Board members. The

district court found that the Board “functions as a special

unit of government” and was therefore not subject

to “one person, one vote" rule. /d. at 797. Petitioner

appealed that judgment to the Tenth Circuit Court of

Appeals.

On July 31, 1995, the Tenth Circuit affirmed the

judgment in favor of the Board members. The court relied

primarily on Sullivan v. Alabama State Bar, 295 F.Supp.

1216 (M.D.Ala.), aff'd without opinion, 394 U.S. 812

(1969) in affirming the decision by the district court.

quoting language which read, “[w]je hold that the

constitutional principle of “one man, one vote" has no

relevancy to the Board of Commissioners of the Alabama

State Bar. Jd. at 798. The Tenth Circuit stated:

On the basis of Sullivan, we affirm

the judgment of the district court in

the instant case. The instant case is,

in our view, on all fours with

Sullivan. The Board of Governors

of the Registered Dentists of

Oklahoma is in the same position as

the Board of Commissioners of the

Alabama State Bar in Sullivan.

Id. at 799. It is from this opinion that the Petitioner now

seeks a Writ of Certiorari from this Court.

SUMMARY OF ARGUMENT

The principle of “one person, one vote" pronounced in

Reynolds v. Sims is not applicable to the present case. That

principle applies to general popular elections and to

8

government entities which exercise general or important

government powers. Here, the Board in question is a

—— purpose unit of state government which is not

Cc by a general popular election. The Board does not

possess any general or important powers of government that

would affect a large number of citizens. Instead, this Board

only has the limited power to license and regulate registered

dentists, dental hygienists, dental assistants, dental nurses

and dental laboratory technicians practicing their profession

or trade in the State of Oklahoma. It is an administrative

board that does not carry out legislature functions in the

classical sense. Therefore, the “one person, one vote” rule

does not apply to the election of the dentist Board members.

As this case does not implicate the fundamental right of

a citizen to vote, and does not invoke a_ suspect

classification, strict or heightened scrutiny is not the proper

standard of review. Only the rational basis test may be

applied. Given that the statute creating me districts from

which the dentist Board members are elected is presumed to

be constitutional, and given that Petiticnsr: has failed to

negate every conceivable reason for supporting the manner

in which the eight districts are drawn, Petitioner's

contention that it violates the Equal Protection clause of the

Fourteenth Amendment is without merit.

ARGUMENT

I. THE "ONE PERSON, ONE VOTE" DOCTRINE

DOES NOT APPLY TO A SPECIAL PURPOSE

UNIT OF GOVERNMENT, SUCH AS THE BOARD

OF GOVERNORS OF REGISTERED DENTISTS

OF OKLAHOMA.

Petitioner argues that the statement by the Tenth Circuit

that the “one person, one vote" rule of Reynolds is

“irrelevant” to special purpose government entities is

“contrary to the applicable decisions of this Court.’ As set

*See, Petition for Writ of Certiorari, p. 11.

9

forth below, the Tenth Circuit was correct in reaching that

conclusion.

In Reynolds, this Court held that the Equal Protection

Clause of the Fourteenth Amendment requires that seats in

both houses of a bicameral state legislature must be

apportioned on the basis of population. Reynolds v. Sims,

supra, 377 U.S. at 586-587. The reasoning of Reynolds has

been extended to units of local government exercising

general governmental functions. In Board of Estimate v.

Morris, 489 U.S. 688, 692-93 (1989), this Court stated,

“state and local elections are subject to the general rule of

population ert between electoral districts." That

decision involved local government apportionment and a

board that had general powers “common to municipal

governments,” including calculating sewer and water rates,

tax abatements, and emp taxes on urban development

projects, managing all city property, and exercising plenary

zoning authority. /d. at 695.

In Hadley v. Junior College District, 397 U.S. 50, 53-

54 (1970), the Board of Trustees of the Junior College

District possessed broad powers that comprised important

governmental functions:

Appellants argue that since the

trustees can levy and collect taxes,

issue bonds with certain restrictions,

hire and fire teachers, make

contracts, collect fees, supervise and

discipline students, pass on petitions

to annex school districts, acquire

property by condemnation, and in

general manage the operations of the

junior college, their powers are

equivalent, for apportionment

purposes, to those exercised by the

county commissioners in Avery. We

feel that these powers, while not

*Avery v. Midland County, 390 U.S. 474 (1968).

Further, these trustees were elected by a general popular

election:

Id. at 56. Therefore, the election of the members of the

Board of Trustees was subject to the “one person, one vote"

doctrine.

However, in instances in which governmental officials

are selected by means other than a

Reynolds is inapplicable. This Court first clarified the

distinction between selection by general popular election and

selection by other means in Sailors v. Board of Education,

10

fully as broad as those of the

Midland County Commissioners,

certainly show that the trustees

perform important governmental

functions within the districts, and we

think these powers are general

enough and have sufficient impact

throughout the district to justify the

conclusion that the principle which

we applied in Avery should also be

applied here.

.whenever a state .or local

government decides to select persons

by popular election to perform

governmental functions, the Equal

Protection Clause of the Fourteenth

Amendment requires that each

qualified voter must be given an

equal Opportunity to participate in

that election, and when members of

an elected body are chosen from

separate districts, each district must

be established on a basis that will

insure, as far as is practicable, that

equal numbers of voters can vote for

proportionally equal numbers of

officials.

ular election,

1]

387 U.S. 105 (1967). There, a group of Michigan voters

challenged the selection of a county board of education as

violating the “one person, one vote” principle. However,

the county board in that case was not selected by means of

a general popular election. Insteaa, each local school board

in the county sent a to a biennial meeting and, at

that meeting, the local on eae members to the

county board. /d. at 106-107.

Justice Douglas found this distinction dispositive. He

found that since the “electorate under the Michigan system

is composed not of the people of the county but of the

delegates from local school boards,” the Michigan system

was “basically appointive rather than elective." Jd. at 109.

He concl "since the choice of members of the county

school board did not involve an election, and since none

was required for these nonlegislative offices, the principle

of one man, one vote has no relevancy." /d. at 111.

(Emphasis added).

Subsequent opinions by this Court have focused on the

scope and nature of the powers of a governmental entity, as

discussed in Hadley to determine whether the governmental

entity possesses general or normal governmental powers,

thus subjecting it to the “one person, one vote" rule. In

Ball v. James, 451 U.S. 355 (1981), this Court reviewed a

case involving registered voters living within the boundaries

of a large water reclamation district who did not meet the

land ownership requirements necessary to entitle them to

elect the district’s directors. These individuals claimed that

the state statute in question violated their equal protection

rights. The question presented to this Court was whether

the “peculiarly narrow function of this local governmental

body and the special relationship of one class of citizens to

that body releases it from the strict demands of the one-

person, one-vote principle of the Equal Protection Clause of

the Fourteenth Amendment." /d. at 357.

In concluding that the Reynolds doctrine did not apply,

this Court stated:

12

First, the District simply does not

exercise the sort of governmental

powers that invoke the strict

demands of Reynolds. The District

cannot impose ad valorem property

taxes or sales taxes. It cannot enact

any laws governing the conduct of

citizens, nor does it administer such

normal functions of government as

the maintenance of streets, the

operation of schools, or sanitation,

health, or welfare services.

Id. at 366. This Court also found that the functions of the

district were relatively narrow, as the district did not own,

sell, or buy water, and did not control the use of water

which it delivered. Nor could the district “control the use

to which the landowners who are entitled to the water

choose to put it.” Jd. at 367, 368. This Court found that

the provision of electricity “is not a traditional element of

governmental sovereignty. . . and so is not in itself the sort

of general or important governmental function that would

make the government provider subject to the doctrine of the

Reynolds case." (Citation omitted). Jd. at 368. Review

these factors, this Court concluded that, "[t]he functions of

the Salt River District are therefore of the narrow, special

sort which justifies a departure from the ——o

requirement of the Reynolds case." Id. at 370.

In Salyer Land Co. v. Tulare Lake Basin Water Storage

District, 410 U.S. 719 (1973), this Court reviewed the

extent of the powers of a water district which might justify

a departure from the Reynolds doctrine, where certain

individuals residing within could not vote in water district

elections, and further, the votes in those elections were

apportioned according to the assessed value of the voter’s

land. This Court held:

We conclude that the appellee water

storage district, by reason of its

special limited purpose and of the

13

disproportionate effect of _ its

activities on landowners as a group,

is the sort of exception to the rule

laid down in Reynolds which the

quoted language from Hadley, supra,

and the decision in Avery, supra,

contemplated.

Id. at 728. In reaching this conclusion, this Court stated:

The appellee district in this case,

although vested with some typical

| ne atpace powers, has relatively

mited authority. Its primary

purpose, indeed the reason for its

existence, is to provide for the

acquisition, storage, and distribution

of water for farming in the Tulare

Lake Basin. It provides no other

general public services such as

schools, housing, transportation,

utilities, roads, or anything else of

the type ordinarily financed by a

municipal body. There are no

towns, shops, hospitals, or other

— designed to improve the

of life within the district

sone ies, and it does not have a

fire department, police, buses, or

trains.

Id, at 728-729. This Court stated that the district did not

“exercise what might be thought of as ‘normal

governmental’ authority,” and its actions "disproportionately

affect{[ed]" the landowners. /d. at 729. Therefore, the

Reynolds doctrine did not apply.

Other courts have further recognized the distinction

between government entities possessing general government

powers and those possessing limited government powers,

for purposes of applying the Reynolds doctrine. In

14

Rosenthal v. Board of Education, 385 F.Supp. 223 (E.D.

N.Y. 1975), aff'd 420 U.S. 985 (1975), the court rejected

a “one person, one vote” challenge to a central school board

whose members, like the members of the county board in

Sailors, were selected by local boards. The Rosenthal court

stated, “the emphasis we put on popular election as a test

echoes the Supreme Court’s eee that the crucial

factor in the application of Fourteenth Amendment

considerations to any apportionment scheme is that the

officials whose election is challenged must have been

elected by popular vote.” /d. at 227.

In Benner v. Oswald, 592 F.2d 174 (3rd Cir.) cert.

denied, 444 U.S. 832 (1979), the Third Circuit Court of

Appeals rejected a challenge to the manner of selecting the

Board of Trustees of Pennsylvania State University. There,

a group of undergraduates asserted, inter alia, that the

procedure for selecting trustees violated their rights under

the equal protection clause because it excluded them from

voting. Examining the Reynolds line of cases, the Benner

court found that “the cases involve general governmental

elections.” Jd. at 182. To the Benner court, that fact dist-

inguished the Reynolds cases from the allegations of the

Penn State undergraduates. It wrote “we refuse to accept

the formulation of the student appellants that the right to

vote for University trustee is equivalent to a right to vote in

a participatory democracy. We will not conclude that the

University trustee selection process is a general public

election or that the trustees perform governmental

functions.” Jd. at 182-83.

Sailors and cases following it are applicable to the case

at bar. Here, just as in those cases and unlike the cases

relied on by Petitioner, no general or lar election is

involved in selecting members of the Board. Section 328.8

of the Oklahoma Dental Act provides that the Board

members are to be selected by 1) only licensed dentists,

with respect to the eight dentists on the Board, 2) only

licensed hygienists, with respect to the one hygienist on the

Board, and 3) the Governor of the State of Oklahoma, with

respect to the two unlicensed Board members. The

15

Oklahoma Dental Act establishes an organization of

registered dentists of the State of Oklahoma, divides it into

eight districts, and authorizes the dentists in each district to

elect a dentist member of the Dental Board. Clearly, this

appointment/selection process bears no resemblance to a

general popular election as contemplated in Reynolds and its

progeny. As the Board is not chosen by a general popular

election, the “one person, one vote” rule is not invoked.

Petitioner contends that the Tenth Circuit did not

Ps se its reasoning nor identify the factual predicate" for

finding that the Board is a “special purpose entity."

However, the record, as well as state law creating the

Board and defining its functions and scope of authority,

reflects that the authority of the Board reaches no further

than the dentists, dental hygienists, dental assistants, dental

nurses and dental aioe technicians who practice their

profession or trade in the State of Oklahoma. Nothing in

the record establishes that the Board possesses the power to

regulate general public services. Neither the underlying

record nor state law would show that the Board's powers

affect or provide for schools, housing, transportation,

utilities, roads, sanitation. Nor does the Board have any

authority to assess or collect taxes, issue bonds, annex land

or acquire property by condemnation proceedings or

anything else which would ordinarily be financed by a

municipal body. The function of the Board, by statute, is

to ensure that competent dentists, dental hygienists, dental

assistants, dental nurses and dental laboratory technicians

are — to provide dental services to the public, but

the possesses no powers beyond these individuals that

would control the conduct of the public at large. Because

this Board does not possess general or important powers or

government authority, the election of its dentist members is

not subject to the Reynolds doctrine.

Petitioner cites Lockport v. Citizens for Community

Action at Local Level, Inc., 430 U.S. 259 (1977) and

Phoenix v. Kolodziejski, 399 U.S. 204 (1970) in support of

his argument that the “one person, one vote" rule should

have been applied in the present case. Lockport involved a

referendum election by o

lived in the cities within the county, and of

who lived outside the cities to approve a

charter. Lockport v. Citizens for Community Action at

Local Level, Inc., supra, 430 U.S. at 260. Because the

Statute in question i for a general election of a

charter which would have affected all citizens within the

county, the “one person, one vote" rule ied. The issue

presented in Phoenix was whether the F Constitution

permitted a state to restrict the right to vote in elections to

approve the issuance of general obligation bonds to real

Property owners only. Phoenix v. Kolodziejski, supra, 399

U.S. at 205. In deciding that the Bans pene one vote"

rule applied, this Court concluded that all residents of the

City of Phoenix, both property and nonproperty owners

alike had, "a substantial interest in the public facilities and

the services available in the city and will be substantially

affected by the ultimate outcome of the bond election at

issue in this case." Jd. at 209. Both opinions are

inapplicable to the present case, as they involved general

lar elections in which all citizens had a substantial

interest in the results of the elections.

Petitioner claims that Tenth Circuit's holding that "one-

person, one-vote" is “irrelevant” is in conflict with Quinn v.

Millsap, 491 U.S. 95 (1989), “which expressly rejected the

conclusion ‘that the Equal Protection Clause was irrelevant’

to a special purpose or limited function governmental

entity." However, the Tenth Circuit did not hold that the

— Protection Clause is irrelevani, nor does the opinion

reflect that. Rather, it is the “one person, one vote"

principle that was held to be irrelevant, as set forth in

Sullivan and by this Court in Sailors.

The Quinn decision involved a proclamation by the

Missouri Supreme Court that the Equal Protection Clause

was irrelevant in regard to a provision in the Constitution of

the State of Missouri which provided that the governments

of the city of St. Louis and St. Louis County could be

‘See, Petition for Writ of Certiorari, p. 11.

17

reorganized by a big of the ee ag - the city and

county " a of reorganization drafted by a ‘board

of frechokers "id at 96. The appellants in that case

contended that the Equal Protection Clause of the

Fourteenth Amendment was violated because the provision

in question required that every member of the official board

own real property. Jd. at 96. This Court, in following

prior cases involving land-ownership requirements, found

that the Missouri Constitutional provision was

unconstitutional, as follows:

In sum, we cannot agree with

appellees that under the Equal

Protection Clause, as previously

construed by this Court, land-owners

alone my be eligible for appointment

to a body empowered to propose a

wholesale revision. of local

overnment. “Whatever objectives”

issouri may wish “to obtain by [a]

‘freeholder’ requirement must be

secured, in this instance at least, by

means more finely tailored to

achieve the desired goal." Turner,

396 U.S. at 364, 24 L.Ed.2d 567,

90 §.Ct. 532.’ Accordingly, a land-

ownershi requirements is

unconstitutional here, just as it was

in Turner and Chappelle.°

Id. at 109.

The present case does not present a “land-ownership"

requirement for membership on the Board in question. Nor

does it involve a board who's work “affects all citizens of

the city and county. . ." as was the case with the board in

*Turner v. Fouche, 396 U.S. 346 (1970).

pelle v. Greater Baton Rouge Airport Dist., 431 U.S.

159 (1977).

18

Quinn. Nor did the Tenth Circuit in the present case hold

that the Equal Protection Clause is irrelevant, as did the

Missouri Suprerne Court. The opinion by the Tenth Circuit

is not in conflict with the Quinn decision.

The Tenth Circuit was not incorrect in relying on

authority holding that the “one person, one vote" rule is

"irrelevant" to the election of a special pu government

board. The term "irrelevant" was adopted from this Court’s

opinion in Sailors, where this Court held that “one person,

one vote” rule had “no relevancy” to the election of a

county school board that did not involve an election.

Sailors v. Board of Education, supra, 387 U.S. at 111.

The use in this case of the term “irrelevant” as applied to

the Reynolds doctrine is appropriate, as the “one person,

one vote” rule is, in fact, irrelevant.

This Court has established factors to analyze the

functions of a government entity to determine whether it

performs general or important governmental functions which

would invoke the “one anes one vote” requirement, as

set forth in Hadley, Bail and Salyer. Petitioner contends

that this case presents an unsettled question of law with

broad implications that should now be addressed by this

Court. Yet, the opinion by the Tenth Circuit does not

conflict with this Court’s nape pronouncements. Nor does

it conflict with decisions by other courts of appeals. The

conclusion reached by the Tenth Circuit is inescapable,

given that the Board is not elected by a popular election and

does not possess traditional government powers that would

invoke the Reynolds doctrine. As Petitioner has failed to

demonstrate a conflict between the Tenth Circuit and this

Court, or between the Tenth Circuit and other courts of

appeals, the requested writ of certiorari must be denied.

Il. STRICT OR HEIGHTENED SCRUTINY IS NOT

APPLICABLE IN THIS CASE.

Petitioner has failed to identify the existence of any

fundamental right other than the “one person, one vote"

rule, which is not applicable in the first instance, and does

19

not contend he is a member of a suspect classification which

might justify a strict or heightened scrutiny analysis of

Section 328.8 of the Oklahoma Dental Act.

In areas of social and economic

policy, a statutory classification that

neither s along suspect lines

nor infringes fundamental

constitutional rights must be upheld

against equal protection challenge if

there is any reasonably conceivable

state of facts that could provide a

rational basis for the classification.

FCC v. Beach Communications, Inc., 113 S.Ct. 2096, 2101

(1993). Therefore, the Tenth Circuit properly did not

engage either a strict or heightened scrutiny analysis of the

manner in which the dentist Board members are elected.

In support of his argument that a strict or heightened

scrutiny analysis should have been applied to Section 328.8,

Petitioner cites Anderson v. Celebrezze, 460 U.S. 780

(1983) and Kramer v. Union Free School Dist., 395 U.S.

621- (1969). Both cases involve general public elections,

unlike the selection mechanism for choosing the members of

the Board. The Anderson decision involved an Ohio statute

which required an independent candidate for the office of

President of the United States to file a statement of

candidacy and nominating petition in March in order to

appear on the general election ballot in November.

Anderson v. Celebrezze, supra, 460 U.S. at 783. This

Court held that the early filing deadline placed an

unconstitutional burden on both associational rights of the

candidate’s supporters and -placed “a significant state-

imposed restriction on a nationwide electoral process." /d.

at 795. Yet, the heightened level of scrutiny in the

Anderson opinion is not applicable to the present case. The

selection of the dentist Board members is, unlike the

election of the President of the United States, not

accomplished by a general election.

20

The Kramer decision also involved a general public

election process that permitted some citizens to vote, while

excluding others, thereby triggering a strict scrutiny analysis

of the state statute providing for that election process. The

statute required, for purposes of eligibility to vote in certain

school district elections, either the ownership or lease of

taxable real within the district or parenthood or

custody of children enrolled in the local public schools.

Kramer v. Union Free School Dist., supra, 395 U.S. at

622. This Court applied the strict scrutiny standard in its

review precisely because a general popular election for

school board members was provided for by statute, but

certain classes of citizens were excluded from voting in that

election. Jd. at 628-629. As the present case does not

involve a general popular election for members of the

Board, the rationale underlying the Kramer decision has no

bearing on this case.

Petitioner’s assertion that strict scrutiny or heightened

scrutiny should have been used in analyzing the

constitutionality of Section 328.8 is without merit. The

cases cited by Petitioner in support of his proposition

pertain to the constitutional rights of citizens voting in a

popular general election, and not to the selection of

members of a special purpose unit of government.

Ill. PETITIONER HAS NOT ESTABLISHED THAT

NO RATIONAL BASIS EXISTS FOR THE

MANNER IN WHICH THE EIGHT GEOGRAPHIC

th: a UNDER SECTION 328.8 ARE

A *

The selection of dentist Board members from different

designated geographic districts as provided:'by the Oklahoma

Dental Act is not irrational, and in any event, the Petitioner

failed to meet his burden to eliminate all arguments that

would negate a finding of rationality.

The Oklahoma Dental Act does not contain any

legislative text that would explain the reasoning behind the

manner in which the geographic districts in question are

drawn.

21

However, there exists a presumption of the

constitutionality of Section 328.8 which the Petitioner failed

to overcome:

FCC. v. Beach Communications, Inc., supra, 113 S.Ct. at

On _—rational-basis review, a

classification in a statute such as the

Cable Act comes to us bearing a

strong presumption of validity, see

Lyng v. Automobile Workers, 485

U.S. 360, 370, 99 L.Ed.2d 380, 108

S.Ct. 1184 (1988), and those

attacking the rationality of the

legislative classification have the

burden "to negative every

conceivable basis which might

support it,” Lehnhausen v. Lake

Shore Auto Parts Co., 410 U.S. 356,

364, 35 L.Ed.2d 351, 93 S.Ct. 1001

(1978) (internal quotation marks

omitted). See also Hodel v. Indiana,

452 U.S. 314, 331-332, 101 S.Ct.

2376, 2387, 69 L.Ed.2d 40 (1981).

2101-2102. This Court further stated:

Moreover, because we never require

a legislature to articulate its reasons

for enacting a statute, it is entirely

irrelevant for constitutional purposes

whether the conceived reason for the

challenged distinction actually

motivated the legislature. United

States Railroad Retirement Bd. v.

Fritz, supra, 449 U.S., at 179, 101

S.Ct., at 461. See Flemming v.

Nesior, 363 U.S. 603, 612, 80 S.Ct.

1367, 1373, 4 L.Ed.2d 1435 (1960).

Thus, the absence of “legislative

facts" explaining the distinction "[o]}n

the record,” 294 U.S.App.D.C., at

22

389, 959 F.2d, at 987, has no

significance in rational-basis analysis.

See Nordlinger v. Hahn, 505 U.S.

_» __» 112 §.Ct. 2326, 2334, 120

L.Ed.2d 1 (1992) (equal protection

“does not demand for purposes of

rational-basis review that a

legislature or governing

decisionmaker actually articulate at

any time the purpose or rationale

supporting its classification"). In

other words, a legislative choice is

not subject to courtroom fact-finding

and may be based on rational

speculation unsupported by evidence

or empirical data. See Vance v.

Bradley, supra, 440 U.S., at 111, 99

S.Ct., at 949. See also Minnesota

v. Clover Leaf Creamery Co., 449

U.S. 456, 464, 101 S.Ct. 715, 723,

66 L.Ed.2d 659 (1981). "’Only by

faithful adherence to this guiding

principle of judicial review of

legislation is it possible to preserve

to the legislative branch its rightful

independence and its ability to

function.’*" Lehnhausen, supra, 410

U.S., at 365, 93 S.Ct., at 1006

(quoting Carmichael v. Southern

Coal & Coke Co., 301 U.S. 495,

510, 57 S.Ct. 868, 872, 81 L.Ed.

1245 (1987).

Id. at 2102. Further, a classification does not fail rational

basis review because it “is not made with mathematical

nicety or because in practice it results in some inequality."

“— v. Williams, 397 U.S. 471, 485 (1970), reh’g

denied, 398 U.S. 914 (1970). (Citation omitted).

While the burden rested with the Petitioner to address

and negate all conceivable reasons for the way in which the

23

ight districts under Section 328.8 are drawn, he failed to

uately do so. The Board members do not have to set

forth justifications for the districts, as the Court itself may

suggest its own that may support the classification

in order to uphold the constitutional of the statute. Sklar

v. Byrne, F.2d 633, 641 (7th Cir. 1984).

Petitioner complains that the present manner in which

the eight regions are drawn violates his equal protection

rights. His argument is predicated on the notion that the

Board is created solely for the benefit of registered dentists

throughout Oklahoma, and that his vote has been diluted.

Yet, the primary and stated purpose of the Oklahoma Dental

Act is to protect public health and ensure public safety

where dentistry is ticed, and accomplishes these goals

by the regulation of registered dentists. The purpose of the

Oklahoma State Dental Act, which creates the Board in

question, readsin part as follows:

The practice of dentistry in the State

of Oklahoma is hereby declared to

affect the public health, safety and

general welfare and to be subject to

regulation and control in the public’s

best interest. It is further declared

to be a matter of public interest and

concern that the dental profession,

through advancement and

achievement, merits and receives the

confidence of the public and that

only ay qualified dentists be

permi to practice dentistry and

supervise dental assistants and/or

dental nurses in the State of

Oklahoma.

Okla. Stat. tit. 59, § 328.2. The Board is charged by

statute to carry out the provisions of the Oklahoma Dental

Act and protect “the dental health of the public." Okla.

Stat. tit. 59, § 328.15. While the Board’s activities and

statutory duties involve the licensing and regulation of

24

dentists such as Petitioner, it was not created solely for

dentists’ benefit. Thus, the focus on the conceivable

reasons for the manner in which the eight districts are

drawn shifts from the interests of the dentists to the interest

of the public.

This stated objective of the Oklahoma Dental Act

applies to the public statewide, and not just to the public

residing in urban areas. An application of the “one person,

one vote" rule would effectively give the metropolitan

dentists a greater, if not majority voice on the Board. This

in turn would make it less likely that dentist practicing in

diverse rural regions would have any input into Board

decisions. The Board would likely become diluted with

members practicing in one or two concentrated urban areas,

. the exclusion of members from other regions of the

tate.

As this Board is statutorily charged with regulating the

practice of dentistry statewide, it is conceivable that the

legislature, in drawing the districts the way it did, wanted to

ensure that the Board represented a cross section of the

State, and not the majority of dentists who chose to practice

in only one or two concentrated urban areas: Because the

regulations and policies governing the practice of dentistry

apply statewide, the legislature may have wanted to ensure

that dentists from diverse regions of the state, and not just

urban localities, would have input into the formulation of

policies and regulations that apply to dentists statewide.

Perhaps the legislature felt that it is advantageous to have

Board members familiar with members of the public in

diverse regions of the state, and familiar with the nature of

practicing dentistry in such regions. The present election

mechanism under Section 328.8 lessens the chance of one

or several geographically isolated groups of dentists

controlling the formulation of statewide dental policies and

regulations.

As the Board also carries out disciplinary functions

pers to Section 328.32 of the Oklahoma Dental Act, the

egislature could have believed that the Board would better

25

out this function without bias or prejudice on the part

of the Board members, where most, if not all of the Board

members were from different regions and hence not in

direct competition with the dentist subject to such

proceedings. The legislature could have believed that

betwen Board me and prejudice arising from competition

members and those who are subject to

disciplinary proceedings favors both the interests of the

dentists and the interest of the public.

the legislature believed that should urban

localities me saturated with dentists, such saturation

would encourage a Board composed of a majority of urban

dentists to restrict the number of licenses issued to lessen

competition, to the detriment of rural regions that might

be in need of additional dentists.’ Such competition

between a majority of Board members practicing in the

same urban localities would not be in the best interest of the

blic, — a provide a rational basis for supporting

on 328.8.

The Oklahoma Legislature chose to provide for a

limited election process among dentists and dental

hygienists, in conjunction with two at-large appointments by

“the governor to select Board members. The legislature

created separate regions from which the dentist Board

members are elected to ensure that the Board is not

controlled by only one or several geographically

concentrated groups of dentists. The legislature could have

easily let the governor of the State of Oklahoma merely

appoint all of the Board members, but chose this innovative

method instead. As the statute in question is presumed to

be rational, it is not the province of the courts to second-

guess the reasoning the Oklahoma Legislature employed in

me the eight regions. Petitioner carried the burden of

er ponte. tao basis which may support Section

8 but to do so. Therefore, the decision by the

’Licensin — is vested in the Board pursuant to Okla.

Stat. tit. 59, : 28.21

26

Tenth Circuit upholding the constitutionality of Section

328.8 was proper.

IV. THE TENTH CIRCUIT DID NOT IMPROPERLY

EXPAND THE APPLICATION OF SULLIVAN V.

ALABAMA STATE BAR.

Petitioner asserts that the Tenth Circuit yay ag

expanded the application of Sullivan v. Alabama State Bar,"

by “ignor{ing] the applicable decisions of this Court

jing the proper effect of summary affirmances.”*

First, the Tenth Circuit — a detailed analysis of the

effect of a summary affirmance in Footnote No. | of its

ae In citing Anderson v. Celebrezze, supra, 460 U.S.

780, the Tenth Circuit noted that this Court stated "[w]e

have often recognized that the tial effect of a

summary affirmance extends no further than ‘the precise

issues presented and necessarily decided by those actions.’"

The Tenth Circuit determined that the “precise issue” in the

Sullivan decision, was whether the one person, one vote

rule applied to the Board of Commissioners of the Alabama

State Bar." Plowman v. Massad, supra, 61 F.3d at 799. A

review of the opinion by the Tenth Circuit would show that

it did not ignore “the licable decisions of this Court

regarding the proper effect of sum affirmances."

Rather, the court noted the limited nature of the precedential

effect of such affirmances, but chose to adopt the rationale

set forth in Sullivan.

Petitioner has failed to produce any authority which

would have prevented the Tenth Circuit from citing a district

court case with approval, and quoting language contained

therein. The Sull decision has not been reversed. The

rationale contained therein conforms with this Court’s prior

decisions regarding the inapplicability of the Reynolds

doctrine to special purpose units of government. The Tenth

Circuit was free to cite the Sullivan decision and to

analogize it with the facts and issues presented in this case. -

*See, Petition for Writ of Certiorari, p. 14.

27

As noted by the Tenth Circuit, the Sullivan decision

was “on all fours" with the present case. Sullivan involved

a lawyer who sought a restraining order and an injunction

against the prosecution or consideration of contempt

proceedings against him by the Board of Commissioners of

the Alabama State Bar. Sullivan v. Alabama State Bar,

supra, 295 F.Supp. at 295. The plaintiff claimed that his

Equal Protection Rights were violated because of

Preeany, she 9 of the Board of Commissioners arising

m wide disparity in lation and in numbers of

lawyers in the various State judicial circuits." Jd. at 1219.

The members of the Board of Commissioners were chosen

as follows:

The Board of Commissioners of the

Alabama State Bar was first

established in 1923. The members

in good standing of the Alabama

State Bar in each judicial circuit of

the State select one member of said

Board of Commissioners. Thus,

there are 36 State judicial circuits

and 36 members of the Board of

Commissioners. There are wide

variances among the judicial circuits

both in total population and in the

number of licensed lawyers.

Id. at 1216. In determining that the “one person, one vote"

rule did not apply to the Board of Commissioners, the

court, relying in part on the Sailors decision, stated:

The Supreme Court has held that the

“one man, one vote" principle has no

relevancy to the choice of members

of a county school board, a non-

legislative office. Lower courts have

reached the same result as to various

governing bodies of limited-purpose

districts and as to members of the

28

executive or judicial branch. As has

been indicated, the powers of the

Board of Commissioners here under

attack may more accurately be

classed as judicial than as legislative.

. . We hold that the constitutional

principle of “one man, one vote” has

no relevancy to the Board of

Commissioners of the Alabama State

Bar.

Id. at 1221.

In the present case, as in Sullivan, an apportionment —

challenge was mounted by a plaintiff against a special or

limited purpose unit of government. The Tenth Circuit was

not in error in mee the Sullivan decision with the

resent action, as question it presented is nearly

identical with that presented by this case.

Petitioner claims that the powers of the Alabama State

Bar in Sullivan were classified as “judicial” in nature, while

the Board in this:case carries out “broad administrative

functions which encompass legislative and executive duties

such as the making and enforcement of rules and the

assessment, collection and expenditure of revenues."” As

such, he claims that these facts distinguish the holding in

Sullivan from the present case. Yet, a review of that

opinion would show that the Alabama State Bar possessed

powers beyond mere adjudicatory functions, as the district

court noted, “[bJroad powers and authority are conferred

on the Board of Commissioners, including the following: .

. . (C) subject to the approval of the supreme court, to

formulate rules governing the conduct of all persons

admitted to practice. . ." Jd. at 1216. Such authority

would constitute administrative rule-making, as is the case

*See, Petition for Writ of Certiorari, p. 14. Of course, the

Board in this case does possess adjudicatory power. in regard to

$3 he ae of dentists, as provided for by Okla. Stat. tit. 59,

29

governmental entity in Sullivan possessed more than

the

mere adjudicatory powers, but the r'aintiff in that case

chose only to challenge the judicial or adjudicative powers

Regardless of Petitioner’s attempt to distinguish the

i a special purpose unit of government does

not have to carry out only judicial functions to be exempt

from the “one person, one vote" rule, as reflected by the

nature of the governmental entities in Ball and Salyer.

Petitioner’s attempt to draw a distinction between a

governmental entity that possesses only adjudicatory powers

and one that carries out both administrative adjudicatory

functions and administrative rule-making functions does not

alter the analysis of whether such entity exercises oc or

important government powers. While itioner

characterizes the functions of the present Board as

“legislative and executive," such functions are in the context

of administrative rule-making, and do not constitute

classical legislative and executive functions which might

invoke the Reynolds doctrine. Therefore, Petitioner’s

argument is without merit.

CONCLUSION

The Tenth Circuit opinion does not run afoul of the

“one person, one vote” rule. The opinion is limited solely

to the statutory authority which creates and confers limited

powers upon this particular Board. The opinion does not

affect the rights of voters in general elections, nor does it

affect the rights of voters regarding general purpose units of

governments that wield general or important governmental

powers. The underlying case presented a special purpose

unit of government with limited authority which governs

only the practice of dentistry in Oklahoma. Its rules and

regulations do not control the activities of the public at

large, but only the professional activities of state licensed

dentists and hygienists, and the activities of dental

assistants, dental nurses and dental laboratory technicians.

The selection mechanism set forth by the Oklahorna Dental

Act to elect Board members does not contemplate a general

30

ate election. Rather, it contemplates an election of

members by only licensed dentists and hygienists.

Because the Board does not possess general or important

government powers, and because the selection process of its

members does not involve a general popular election, the

election of the dentist Board members is not subject to the

Reynolds doctrine.

The opinion by the Tenth Circuit does not constitute a

deviation from precedent established by this Court. Nor

does it conflict with decisions rendered by other courts of

appeals. Therefore, the Respondent Board Members

respectfully —_— that the Petition for Writ of Certiorari

be denied, as Petitioner has failed to establish adequate

grounds in support of his requested relief.

Respectfully submitted this 27th day of November,

1995.

W. CRAIG SUTTER

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR RESPONDENTS

APPENDIX

A-1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

PAUL PLOWMAN, D.D.S.,

Plaintiff, |

v. No. CIV-93-1008-C

)

JOSEPH J. MASSAD, (Filed Apr. 25, 1994)

JAMES LIMESTALL,

FRED LUCAS, ED )

GARRETT, JAMES FARLEY,)

BRAD HOOPES, L.D.

WHITLOCK, WILLIAM

SMITH, BONNIE

FLANIGAN, BEULAH

HOUSTON-VERNON, and

DARLA SHURTZ,

individually and in their

official capacities, and

their successors,

Defendants.

IUDGMENT

ee i a a a ee

Upon consideration of the pleadings herein, the Court

finds that defendants’ Motion for Summary Judgment should

be granted, and judgment is therefore entered on behalf of

all defendants.

DATED this _25 _ day of April, 1994.

/s/ ROBIN J. CAUTHRON

UNITED STATES DISTRICT JUDGE

i i ae

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

PAUL PLOWMAN, D.D.S., )

Plaintiff,

v. INO. CIV-93-1008-C

JOSEPH J. MASSAD, (Filed April 25, 1994)

JAMES LIMESTALL,

FRED LUCAS, ED

SMITH, BONNIE

FLANIGAN, BEULAH

HOUSTON-VERNON, and

DARLA SHURTZ,

individually and in

their official '

capacities, and

their successors,

Defendants.

ORDER

This matter is before the Court for consideration of the

motion for summary judgment filed by defendants, the

Oklahoma Board of Governors of Registered Dentists,

individually and in their official capacities. Plaintiff has

responded and also requests summary judgment. The parties

agree the material facts are not in dispute.

Undisputed Facts

1. The Oklahoma Dental Act, 59 Okla. Stat. §§

328.1, et seg., establishes an organization known as the

ee ee ee ee ee ee ee ee ee

OL TL ee ei eee aE TT Ow we

B-2

“Registered Dentists of Oklahoma.” The Registered

Dentists of Oklahoma consist of those individuals licensed

to practice dentistry in Oklahoma. The Dental Act also

establishes a governing body for this organization, "The

Board of Governors of Registered Dentists of Oklahoma"

("Board").

2. The Board is composed of 11 members, of

whom eight are dentists elected by the membership of the

Registered Dentists of Oklahoma from eight geographic

districts. The Board also includes one dental hygienist

member, and two members who represent the public in

general.

3. To be a candidate for election, a dentist must

reside in the district and secure a nominating petition signed

by at least ten other dentists residing in the district. Only

dentists residing within the defined geographic district can

vote for the Board representative from that district.

4. A Board member may be recalled pursuant to a

recall petition signed by 20% of the dentists eligible to vote

in that district. No grounds for recall are necessary and

recall will be accomplished if a majority of dentists voting

in the recall election approve that action.

5. The board is charge with the responsibility of

examining candidates for licensure as dentists and as dental

hygienists, enforcing the provisions of the Dental Act, and

inspecting dental offices and dental laboratories. Other

powers of the Board include the power to sue and be sued,

to employ attorneys, to obtain Attorney General opinions, to

hire inspectors and investigators, to enter into contracts, to

acquire, hold, encumber and dispose of real and personal

, to pay travel expenses, to affiliate with

professional organizations, to promulgate rules and

regulations, to enforce the penal provisions of the Dental

Act, to establish minimum standards of dental care, to enter

into cooperative agreements with other agencies and other

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states, to appoint committees and examining boards, to hire

employees, to pay expenses, to establish continuing

education requirements, to fix fees for examinations,

eon licenses and registration, to discipline dentists and

ygienists, and to seek injunctions against the unlicensed

practice of dentistry.

6. The provisions of the Dental Act impose limits

on the Board exercise of its powers and responsibilities.

The Dental Act defines the practice of dentistry and dental

hygienists, and establishes rules of professional conduct for

dentists and hygienists, and specifies the grounds for

disciplinary action against dentists and dental hygienists.

The Dental Act also establishes limits on the fees that the

Board may establish for applications for licensure and for

renewal of licensure. In addition, the Dental Act establishes

procedures for disciplinary hearings against dentists and for

appeals from a Board decision imposing discipline. The

Board’s decision to impose disciplinary actions may be

appealed to Oklahoma County District Court and

subsequently to the Oklahoma Supreme Court. In its sole

discretion, the Board may enforce or not enforce any .

provision of the Dental Act. The Board is equally

empowered to determine what punishment, if any, will be

imposed for any violation. Punishment may include

revocation or suspension of a dental license, probation, and

public or private reprimand.

if As an administrative agency, the Board is subject

to certain provisions of the Administrative Procedures Act.

75 Okla. Stat. §§ 250, et seq.

8. Under the Administrative Procedures Act, the

Board’s rules must be submitted to the Governor, to the

Speaker of the House of Representatives, and the President

Pro Tempore of the Senate. The Board’s rules are not valid

and effective until approved by either the Governor or a

Joint Resolution of the Legislature.

9. The Plaintiff is Dr. Paul Plowman, a licensed

dentist and member of the Registered Dentists of Oklahoma.

10. Dr. Plowman lives and practices dentistry within

Oklahoma County, Oklahoma, which is in the Board’s

District 5.

11. The numbers of licensed dentists in the eight

districts are as follows: District 1 - 128, District 2 - 367,

District 3 -57, District 4 - 160, District 5 - 515, District 6 -

164, District 7 - 158, and District 8 - 120.

12. Each of the eight districts elects one Board

member regardless of the number of dentists eligible to vote

within such districts.

Standard of Review

A party resisting a motion for summary judgment must

do more than make conclusonary allegations, he “must set

forth specific facts showing that there 1s a genuine issue for

trial.” Fed.R.Civ.P 56(e);

Co., 704 F.2d 496, 498 (10th Cir. 1983); see

Lake Hefner

Open Space Alliance v. Dole, 871 F.2d 943° ¢ 946 (10th Cir.

1989)(plaintiff did not “by affidavits or ...otherwise...set

forth specific facts showing that there is a genuine issue for

trial."(emphasis supplied)). The mission of the summary

judgment procedure is "to pierce the pleadings and to assess

= proof in order to see whether there is a genuine need for

Matsushita Elec, Indus, Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)(quoting Advisory Committee Note

to Fed.R. Civ. P. 56(e)). “Where the record taken as a

whole could not lead a rational trier of fact to find for the

non-moving party there is no ’genuine issue for trial’," and

summary judgment can be granted. Id. at 587 (citation

omitted). The burden on the non-moving party is only to

point out that the records do not disclose a genuine issue on

any material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). It is sufficient to discharge the moving party’s

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pene Be showing the record does not contain a material

issue point out the part of the record supporting the

assertion. Where, as here, the non-moving party has the

burden of proving at trial the material issues, then the

moving party is not required to “support its motion with

affidavits or other similar materials negating the opponent’s

claim." Id, at 323. It is enough to show “that there is an

absence of evidence to support the nonmoving party’s case."

Id, at 325.

There is no need for the submission of additional

evidence or an evidentiary hearing as plaintiff has suggested

because the material facts are not in dispute. Once the

board, as the moving party, points out the absence of

evidence to create a "genuine issue" of a “material fact" on

which the non-moving party bears the burden of proof at

trial, the Supreme Court imposes a burden on the non-

moving party. Plaintiff “must do more than simply show

that there is some metaphysical doubt as to the material

facts." Matsushita, 475 U.S. at 586. The non-moving

party must set forth specific facts showing there is a genuine

issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Although the Court will construe the facts

and inferences drawn from the record before it in the light

favoring the non-movant, “[e]ven under this standard there

are cases where the evidence is so weak that the case does

not raise a genuine issue of fact." Burnette v. Dow

Chemical Co., 849 F.2d 1269, 1273 (10th Cir. 1988). The

question in a case for summary judgment is "whether the

evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one

eg yang prevail as a matter of law." Anderson, 477 U.S.

at “32.

Discussion

This action involves a constitutional challenge to the

Board’s election process, Under the Dental Act, 59 Okl.

Stat. §§ 328.1, et seg., Oklahoma is divided into eight

geographical districts. 59 Okla. Stat. § 328.7. Some

districts encompass as few as two counties. District One

has the most and covers 17 counties. 59 Okla. Stat. §

328.8. Each district may elect one Board member. 59

Okla.. Stat. § 328.8. Plaintiff alleges the Board’s election

violates the Fourteenth Amendment to the United

tates Constitution, which guarantees, among other things,

each citizen is entitled to equal protection under the laws.

An important decision in the pertinent cases is whether

an election is accomplished by general popular vote or by

some other means. If the controversy concerns a

ah overnmental unit exercising general governmental

nctions, votes may only be cast based on an » rtionment

of the population. Reynolds v. Simms, 377 U.S. 533

(1963). Elections by other means have ‘a upheld.

, 387 U.S. 105

(1967)(local school board delegates elected the members of

the county school board); Rosenthal v, Bd. of Educ. of

385 F.Supp. 223 (E.D.N.Y. 1974) aff'd, 420 U.S. 985

(1975)(local board members elected the central school board

members); Benner v, Oswald, 592 F.2d 174 (3d Cir.), cert

denied, 444 U.S. 832 (1979)(election of a university’s

trustees).

In litan

397 U.S. 50 CLO the Supreme Court

announced that the general principle of one man, one vote

does not apply to special purpose units of government.

Although the Board is a unit of government, the restrictions

on its exercise of power clearly make it a special purpose

unit, and thus, the apportionment requirement of the

line of cases is inapplicable here. The Board may

determine the fee for a dental license and may regulate the

psa of dentistry and dental hygiene. Although the

is responsible for any disciplinary action against a

licensed dentist, any such action by the Board is subject to

review under the Administrative Procedures Act, 75 Okla.

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Stat. §§ 250, et seq. This Court finds the Board's actions

are sufficiently restricted by the provision of the Dental and

Administrative Procedures Act that it functions as a special

purpose unit of government. Accordingly, the fact that the

Board is selected by a means other than a general election

does not violate plaintiff's right to equal protection under the

laws. The Board’s motion for summary judgment will be

granted and plaintiff's motion for summary judgment will be

denied.

Conclusion

In accordance with the foregoing, the Board’s motion

for summary judgment is GRANTED, and the plaintiff's

motion for summary judgment is DENIED. A judgment

shall enter accordingly.

IT IS SO ORDERED this _25_ day of April, 1994.

/s/ ROBIN J. CAUTHRON

UNITED STATES DISTRICT JUDGE