Opposition Brief — Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City

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No. 7

In The

Supreme Court of the United States

October Term, 1995

OKLAHOMA ASSOCIATION FOR

EQUITABLE TAXATION,

Petitioner,

THE CITY OF OKLAHOMA CITY, OKLAHOMA,

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of The

State Of Oklahoma

RESPONDENT’S BRIEF IN OPPOSITION

Wiuram O. West

Municipal Counselor

Mary Lu T. Gordon

Assistant Municipal Counselor

The City of Oklahoma City

309 Municipal Building

200 North Walker

Oklahoma City, Oklahoma 73102

(405) 297-2451

Counsel of Record for Respondent

The City of Oklahoma City,

Oklahoma

OOOO

LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Court below was correct in rejecting

Petitioner’s assertion that the age-based classification is

suspect and subject to heightened scrutiny under the

Equal Protection Clause.

2. Whether the Court below was correct in deciding

the MAPS Refund Provision is rationally related to a

legitimate governmental purpose.

3. Whether the age-based classification in this case

is a denial of equal protection as vote dilution.

TABLE OF CONTENTS

Page

QUESTIONS PREGEICIGU? «va videscvceserconssesess i

TALE CFP CORTES oaks dceanescs chawusdivdsrs ii

TABLE OR AUTIAGIIITIRS cmos ccc ccstisansees educa iii

STATEMENT OF THE CASE. ...4..200cssousecvewses 1

REASONS WHY THE WRIT SHOULD BE DENIED .. 2

ARGATIIIINGE io o0 cdc acncstvarenvectacapeaeeeureses « 3

I. IT IS WELL SETTLED THAT THE RATIONAL

BASIS TEST IS THE APPROPRIATE LEVEL

OF SCRUTINY TO BE APPLIED TO AN AGE-

BASED CLASSIFICATION UNDER THE

EQUAL PROTECTION CLAUSE............. 3

Il. THE MAPS REFUND PROVISION IS RATIO-

NALLY RELATED TO A LEGITIMATE GOV-

ERIS EAL, FRPEOI cee Sect aekecnveecess 5

A. Petitioner Failed To Meet Its Burden To Show

The MAPS Refund Provision Is Not Ratio-

nally Related To Any Legitimate Govern-

MON PUG «os icccnaseves seh langeds: 5

B. Legislative Classifications Pertaining To

Taxing Statutes Are Given Great Latitude.. 6

C. The MAPS Refund Age-Based Classification

Is A Reasonable Means To Promote A Legiti-

mate Legislative Objective ................ 8

Ill. THIS CASE DOES NOT INVOLVE VOTE

SPEED: 0 ie nc ceed aks Rance aces 10

CRED. os Soesecss ond aueuege ksemibabenesaey. 12

iii

TABLE OF AUTHORITIES

Page

Cases

Acevedo v. Nassau County, New York, 500 F.2d 1078

I Noe cain nn Wibuke ad vciebecioewsinren'ews 10

Chapman v. City of Detroit, 808 F.2d 459 (6th Cir.

REECE Se BES Ea iS is tar eae 10

Doran v. Cullerton, 51 Ill.2d 553, 283 N.E.2d 865

I eCN ys faded b e404 o cn uses aks doi rcnveds « 6

Exxon Corp. v. Eagerton, 462 U.S. 176, on remand,

Eagerton v. Exchange Oil and Gas Corp., 440 So.2d

ie Fuh tulecGN s do las < he sPa'cn hve cic 7

Gray v. Sanders, 372 U.S. 368 (1963) ................. 10

Gregory v. Ashcroft, 501 U.S. 452 (1991)........ 3, 4,5, 9

Hatten v. Rains, 854 F.2d 687 (5th Cir. 1988)......... 10

Hess v. St. Joseph Police Pension Fund, 788 F.2d 1344

Me EVAL sen GAvwevsccessevssences'e 10

Izquierdo Prieto v. Mercado Rosa, 894 F.2d 467 (1st

tr i ou sal buds yee vm ee 60 10

Jefferson v. Hackney, 406 U.S. 535, rehearing denied,

ES Se a ee ee 9

Malmed v. Thornburgh, 621 F.2d 565 (3d Cir. 1980),

cert. denied, 449 U.S. 955 (1980) ................... 10

Massachusetts Board of Retirement v. Murgia, 427

SN I Skis 5 dUMdas id's dbp a WNT dels Sanna dees 4

Miller v. Johnson, ___ U.S. ___, 115 S.Ct. 2475 (1995) .... 10

Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct. 2326

SS ie ag SEAT RAN 0 4400 eneeawu shee ens 3 6 7,8

TABLE OF AUTHORITIES — Continued

Oklahoma Association for Equitable Taxation v. The

City of Oklahoma City, 901 P.2d 800 (1995)..... 1, 2, 6

Reynolds v. Sims, 377 U.S. 533 (1964) ..........0.. 10, 11

Shaw v. State of Or. Public Employees’ Retirement

Bd... SEF F.2d DOF COGh Cit. TO) os vce cw accnvinscs 10

State ex rel. v. Morgan, 30 Wis.2d 1, 139 N.W.2d 585

CI iss 0a x us ha chen Cheek ae ORs CREP ees bes 6

Thompson v. Walker, 758 F.2d 1004 (4th Cir. 1985) .... 10

Thornburg v. Gingles, 478 U.S. 30 (1985) .......... 10, 11

Vance v. Bradley, 440 U.S. 93 (1979).......... ce eee eee 6

Ware v. Idaho State Tax Commission, 98 Idaho 447,

567 P.2d 423 (1977), modified on other grounds,

Parsons v. Idaho State Tax Com’n, 716 P.2d 1344

CN Sy PRI PE, S badd cerns Conde ncentassares 6

Wesberry v. Sanders, 376 U.S. 1 (1964) ............... 10

STATEMENT OF THE CASE

This case is about a single provision of the MAPS

Ordinance proposed by the Oklahoma City Council on

October 13, 1993, and approved by the voters in a city-

wide special election on December 14, 1993. The MAPS

Ordinance amended the Oklahoma City tax code by levy-

ing an additional one percent excise tax for five years on

all taxable sales made within Oklahoma City. The funds

raised by the five-year tax are to be placed in a special

account and used on a pay-as-you-go basis to erect new

facilities and renovate existing public buildings in down-

town Oklahoma City.

The section of the MAPS Ordinance at issue is the

MAPS Refund Provision. It grants to Oklahoma City resi-

dents, who are sixty-five years and older, the right to an

annual refund of all or part of the MAPS one percent

sales tax actually paid by them, up to $32 per person.

(Opinion below, Petition App. A-6 and A-7; now pub-

lished at Oklahoma Association for Equitable Taxation v. The

City of Oklahoma City, 901 P.2d 800, 802 (1995)).

Petitioner’s Statement of the Case, with some clari-

fication, accurately reflects the proceedings below. (Peti-

tion 3 through 6.) Accordingly, Respondent adopts

Petitioner’s statement as to the course of the proceedings

and disposition of the case below, and adopts the remain-

ing Statement of the Case with the following exceptions:

1. Petitioner’s substitution of the pejorative term

“rebate” for “refund” throughout its Petition is an inven-

tion of the Petitioner. “Rebate” was neither used in Ordi-

nance No. 20,045, which established the MAPS Refund

Provision (Petition App. B), nor was “rebate” used in the

Supreme Court of the State of Oklahoma’s opinion. See

Oklahoma Association for Equitable Taxation v. The City of

Oklahoma City, 901 P.2d 800 (Okla. 1995).

2. In its argument, Petitioner states:

“No longer are senior citizens the least well off

in society. In fact, by some estimates sixty per-

cent (60%) of the wealth in the United States is

held by individuals over the age of sixty-five

(65).”

That statement, characterized as a fact, was neither raised

in the proceedings below nor is it relevant. It is pur-

posefully misleading to the Court. In fact, in Oklahoma

City, according to the 1990 United States Census, the

median income for households headed by householders

age sixty-five and over was $7,888, whereas the median

income for households headed by householders under

sixty-five years old was $27,958. (Median income calcu-

lated from 1990 United States Census data for household

income by age of householders.)

REASONS WHY THE WRIT SHOULD BE DENIED

The Oklahoma Supreme Court’s decision is consis-

tent with decisions of other state courts, United States

courts of appeals, and with decisions of this Court.

ARGUMENT

Petitioner asks this Court to hear this case for three

reasons. First, it contends that a heightened level of scru-

tiny should be applied to the MAPS Refund Provision.

Second, Petitioner contends that the Oklahoma Supreme

Court’s decision is not in accord with prior decisions of

this Court and the United States courts of appeals

because no legitimate governmental interest is served by

the MAPS refund program. Third, Petitioner claims that

this case involves “purposeful dilution of a particular

group’s voting strength,” (petition 21).

I. IT IS WELL SETTLED THAT THE REASONABLE

BASIS TEST IS THE APPROPRIATE LEVEL OF

SCRUTINY TO BE APPLIED TO AN AGE-BASED

CLASSIFICATION UNDER THE EQUAL PROTEC-

TION CLAUSE.

The question here is whether the decision of the

citizens of Oklahoma City to vote for an additional one

cent sales tax for five years, which includes a limited

refund of paid sales taxes to citizens sixty-five years old

or older, violates the Equal Protection Clause. Petitioner

claims that age-based classification should be subject to

strict or heightened scrutiny because times have changed,

and implies that the Court has not addressed this issue in

the last twenty-five years.

That implication is not true; age-based classification

was an issue in Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct.

2326 (1992) and in Gregory v. Ashcroft, 501 U.S. 452 (1991).

In Gregory, the constitutional question raised was

whether Missouri’s constitutional provision requiring

appointed judges (other than municipal judges) to retire

at the age of seventy years violated the Equal Protection

Clause. The petitioners in Gregory claimed that the man-

datory retirement provision created irrational distinctions

between seventy-year-old judges and younger judges.

The Court in Gregory stated:

“Petitioners are correct to assert their challenge

at the level of rational basis. This Court has said

repeatedly that age is not a suspect classification

under the equal protection clause. Nor do peti-

tioners claim that they have a fundamental

interest in serving as judges. The State need

therefore assert only a rational basis for its age

classification.”

Id. at 470 (citations omitted).

The Court has consistently declined to extend height-

ened review to differential treatment based on age. The

Court's rationale has been that the aged have not experi-

enced a “ ‘history of purposeful unequal treatment’ or

been subjected to unique disabilities on the basis of ste-

reotyped characteristics not truly indicative of their abili-

ties,” as have people discriminated against because of

race, alienage, or national origin. Massachusetts Board of

Retirement v. Murgia, 427 U.S. 307, 313 (1976).

In Gregory, as in this case, the challenged age-based

classification is not merely the act of the legislature, but

“reflects both the considered judgment of the . . . legis-

lature that proposed it and that of the citizens . . . who

voted for it.” Gregory, supra at 441.

The Court concluded:

“[Wle will not overturn such a [law] unless the

varying treatment of different groups or persons

is so unrelated to the achievement of any combi-

nation of legitimate purposes that we can only

conclude that the [people’s] actions were irra-

tional.”

Gregory, supra at 471, quoting Vance v. Bradley, 440 U.S. 93,

97 (1979).

II. THE MAPS REFUND PROVISION IS RATIO-

NALLY RELATED TO A LEGITIMATE GOVERN-

MENTAL PURPOSE.

The MAPS Ordinance is a matter of strictly local

concern. The- MAPS Refund Provision of that ordinance

reflects both the considered judgment of the Oklahoma

City Council who proposed it and that of the residents of

Oklahoma City who voted in favor of it. The MAPS

Refund Provision neither burdens a suspect group nor a

fundamental interest. “[C]ourts are quite reluctant to

overturn governmental action on the ground that it

denies equal protection of the laws.” Gregory, supra at 471.

A. Petitioner Failed to Meet Its Burden To Show

The MAPS Refund Provision Is Not Rationally

Related To Any Legitimate Governmental Pur-

pose.

Petitioner asserts that Respondent City has failed to

prove that the age-based classification in the MAPS

Refund Provision is reasonably related to a legitimate

governmental purpose. Petitioner has it backwards:

“In an equal protection case of this type, how-

ever, those challenging the legislative judgment

must convince the court that the legislative facts

on which the classification is apparently based

could not reasonably be conceived to be true by

the governmental decisionmaker.”

Vance v. Bradley, 440 U.S. 93, 111 (1979) (citations omit-

ted).

As the Oklahoma Supreme Court recognized, Peti-

tioner failed to meet its burden. See Oklahoma Association

for Equitable Taxation v. City of Oklahoma City, 901 P.2d 800

(Okla. 1995). The Oklahoma Supreme Court concurred

with the holdings in other states which acknowledge that

state and local taxing policies that favor senior citizens

with refunds and exemptions are legitimate humanitarian

and economic bases for age-based classification. See Okla-

homa Association for Equitable Taxation v. City of Oklahoma

City, supra; Ware v. Idaho State Tax Commission, 98 Idaho

447, 567 P.2d 423, 426 (1977), modified on other grounds,

Parsons v. Idaho State Tax Com’n, 716 P.2d 1344, 1347

(Idaho Ct. App. 1986); State ex rel. v. Morgan, 30 Wis.2d 1,

139 N.W.2d 585, 587 (1966); and Doran v. Cullerton, 51

Ill.2d 553, 283 N.E.2d 865, 867-68 (1972).

B. Legislative Classifications Pertaining To Taxing

Statutes Are Given Great Latitude.

As a general rule, legislation is presumed valid ##d

will be sustained if a classification created by statute is

rationally related to a legitimate governmental interest,

despite the fact that, in practice, legislation may result in

some inequality. Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct.

2326 (1992). “This standard is especially deferential in the

ee Ce ae EN rem

context of classification made in complex tax laws.” Id.,

112 S.Ct. at 2332. In taxing measures, “[lJegislatures have

especially broad latitude in creating classifications and

distinctions.” Exxon Corp. v. Eagerton, 462 U.S. 176, 196

(1983), on remand, Eagerton v. Exchange Oil and Gas Corp.,

440 So.2d 1031 (Ala. 1983), quoting Regan v. Taxation with

Representation in Washington, 461 U.S. 540, 547 (1983). See

also Nordlinger v. Hahn, supra, 112 S.Ct. at 2332.

The MAPS Refund Provision is part of a taxing policy

of the City of Oklahoma City. The limited refund was

designed to provide tax relief to City residents who are

sixty-five and older. It was not irrational for the City

Council to believe that: (1) senior citizens would be less

able to pay the MAPS sales tax; and (2) senior citizens

would be less likely to use the facilities built by the

MAPS tax increase.

“For purposes of rational-basis review, the ‘lati-

tude of discretion is notably wide in... the

granting of partial or total exemptions upon

grounds of policy.’ ”

Nordlinger v. Hahn, supra, 112 S.Ct. at 2335, quoting F.S.

Royster Guano Co. v. Commonwealth of Virginia, 253 U.S.

412, 415 (1920).

The Court has long recognized that state and local

governmental taxing policies may be designed to serve

more purposes than merely raising revenue. For that

reason, courts have shown great deference to legislative

taxing policies.

“The Equal Protection Clause does not forbid

classifications. It simply keeps governmental

decisionmakers from treating differently per-

sons who are in all relevant respects alike.”

Nordtinger v. Hahn, supra at 2331 (citation omitted).

“[I]n structuring internal taxation schemes, ‘the

States have large leeway in making classifica-

tions and drawing lines which in their judgment

produce reasonable systems of taxation.’ ”

Nordlinger v. Hahn, supra at 2332, quoting Williams v. Ver-

mont, 472 U.S. 14, 22 (1985), appeal after remand, Williams v.

State, 156 Vt. 42, 589 A.2d 840 (1990), cert. denied, Williams

v. Vermont, 502 U.S. 821 (1991), cert. denied, Woodard v.

Vermont, 502 U.S. 984 (1991).

C. The MAPS Refund Age-Based Classification Is

A Reasonable Means To Promote A Legitimate

Legislative Objective.

An age-based classification, approved by the citizens

of Oklahoma City, allows senior citizens to receive a

limited refund of sales taxes they have paid. Age-based

classifications in state tax law were subjected to an equal

protection analysis by this Court in the recent case of

Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct. 2326 (1992). In

that case, the people of California, in a statewide vote,

approved an acquisition-value taxation scheme that pro-

vided an exemption from reassessment for two special

classes of new owners, one of which was persons aged 55

and older. This Court held in Nordlinger that the exemp-

tion rationally furthered legitimate purposes. The Court

stated that:

“The people of California reasonably could have

concluded that older persons in general should

not be discouraged from exchanging their resi-

dences for ones more suitable to their changing

family size or incomes.”

Id., 112 S.Ct. at 2335.

In Jefferson v. Hackney, 406 U.S. 535, 549 (1972), rehear-

ing denied, 409 U.S. 898 (1972), Texas allocated a higher

proportion of available AFDC funds to the aged. There

the Court stated:

[T]he State may have concluded that the aged

and infirm are the least able of the categorical

grant recipients to bear the hardships of an

inadequate standard of living. While different

policy judgments are of course possible, it is not

irrational for the State to believe that the young

are more adaptable than the . . . elderly, espe-

cially because the latter have less hope of

improving their situation in the years remaining

to them. Whether or not one agrees with this

state determination, there is nothing in the Con-

stitution that forbids it.

Id. at 549.

This Court has recognized that age-based classifica-

tion, “like all legal classifications, is founded on a gener-

alization.” Gregory, supra at 473. Such a generalization

may be true, partially true, or not true at all. However,

equal protection is not denied “merely because the classi-

fications made . . . are imperfect.” Jefferson v. Hackney,

supra at 546.

The decision of the Oklahoma Supreme Court is con-

sistent with the prior decisions of this Court and the

decisions of federal courts of appeals regarding the appli-

cation of an equal protection analysis to age-based classi-

fication. See Izquierdo Prieto v. Mercado Rosa, 894 F.2d 467

(1st Cir. 1990); Acevedo v. Nassau County, New York, 500

F.2d 1078 (2d Cir. 1974); Malmed v. Thornburgh, 621 F.2d

565 (3d Cir. 1980), cert. denied, 449 U.S. 955 (1980);

Thompson v. Walker, 758 F.2d 1004 (4th Cir. 1985); Hatten v.

Rains, 854 F.2d 687 (5th Cir. 1988); Chapman v. City of

Detroit, 808 F.2d 459 (6th Cir. 1986); Hess v. St. Joseph Police

Pension Fund, 788 F.2d 1344 (8th Cir. 1986); Shaw v. State of

Or. Public Employees’ Retirement Bd., 887 F.2d 947 (9th Cir.

1989). In each of the foregoing cases, an age-based classi-

fication was found to be rationally related to a legitimate

governmental purpose.

Ill. THIS CASE DOES NOT INVOLVE VOTE DILU-

TION.

“{A] vote dilution claim alleges that the State

has enacted a particular voting scheme as a

purposeful device ‘to minimize or cancel out the

voting potential of racial or ethnic minorities.’

Mobile v. Bolden, 446 U.S. 55, 66, 100 S.Ct. 1490,

1499, 64 L.Ed.2d 47 (1990).”

Miller v. Johnson, __ U.S. ___, 115 S.Ct. 2475, 2485 (1995).

Vote dilution has been addressed by this Court on

numerous occasions, e.g. Gray v. Sanders, 372 U.S. 368

(1963); Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v.

Sanders, 376 U.S. 1 (1964); Thornburg v. Gingles, 478

U.S. 30 (1985). In virtually all these cases, the issue

of vote dilution involved either unequal population

apportionment or redistricting schemes that split voting

blocs. In each case, the issue was analyzed in terms of

political equality requiring “one person, one vote.”

Reynolds v. Sims, supra at 557.

“The phrase ‘vote dilution,’ in the legal sense,

simply refers to the impermissible discrimina-

tory effect that a multimember or other district-

ing plan has when it operates ‘to cancel out or

minimize the voting strength of racial groups.’ ”

Thornburg v. Gingles, supra at 87, (O’Connor, J., concurring

in the judgment), quoting White v. Regester, 412 U.S. 755,

765 (1973).

The MAPS Ordinance was put to the vote of the

people of Oklahoma City in a city-wide election. Peti-

tioner has never alleged, and has no basis to claim, that

the vote of a senior citizen counted more than the vote of

a non-senior citizen.

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

WiiuiaM O. West