# Opposition Brief — Plowman v. Massad

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1046

## Text

(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

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“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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0709%3A2. Public record. Not legal advice.