Oklahoma Educ. Ass'n v. Alcoholic Beverage Laws Enforcement Com'n

• Citation: 889 F.2d 929
• Decision Date: 07 November 1989
• Docket Number: Nos. 87-2627,87-2668,s. 87-2627
• Parties: The OKLAHOMA EDUCATION ASSOCIATION, an incorporated association; Russ Islas and Susan Stone, as individuals and as members of the Oklahoma Education Association; The Oklahoma Public Employees Association, an incorporated association; Sherri Moore and Linda G. Cupp, as individuals and as members of the Oklahoma Public Employees Association, Plaintiffs-Appellants, v. The ALCOHOLIC BEVERAGE LAWS ENFORCEMENT COMMISSION; and Winston Boydston, Bill Porter, Robert Berry, Joan Blankenship, Heber Finch, and Randall Spears, as members of the Alcoholic Beverage Laws Enforcement Commission; and Ron Willis, as the Director of the Alcoholic Beverage Laws Enforcement Commission, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 929

889 F.2d 929

The OKLAHOMA EDUCATION ASSOCIATION, an incorporated

association; Russ Islas and Susan Stone, as individuals and

as members of the Oklahoma Education Association; The

Oklahoma Public Employees Association, an incorporated

association; Sherri Moore and Linda G. Cupp, as individuals and as members of the Oklahoma Public Employees Association, Plaintiffs-Appellants, v. The ALCOHOLIC BEVERAGE LAWS ENFORCEMENT COMMISSION; and Winston Boydston, Bill Porter, Robert Berry, Joan

Blankenship, Heber Finch, and Randall Spears, as members of

the Alcoholic Beverage Laws Enforcement Commission; and Ron

Willis, as the Director of the Alcoholic Beverage Laws

Enforcement Commission, Defendants-Appellees.

Nos. 87-2627, 87-2668.

United States Court of Appeals,

Tenth Circuit.

Nov. 7, 1989.

Richard B. Wilkinson (Karen L. Long, of the Oklahoma Educ. Ass'n, of Oklahoma City, Okl.; and Dennis W. Arrow, of Edmond, Okl., with him on the briefs), of the Oklahoma Education Ass'n, of Oklahoma City, Okl., for plaintiffs-appellants Oklahoma Educ. Ass'n; and Russ Islas and Susan Stone, as individuals and as members of the Oklahoma Education Association.

Frank E. Walta, of Oklahoma City, Okl., on the briefs for plaintiffs-appellants Oklahoma Public Employees Ass'n; and Sherri Moore and Linda G. Cupp, as individuals and as members of the Oklahoma Public Employees Association.

William Kurt Morgan (Robert H. Henry, Atty. Gen. of Oklahoma, and Michael Scott Fern, Asst. Atty. Gen., Deputy Chief, Civ. Div., were on the brief), of the Alcoholic Beverage Laws Enforcement Com'n, for defendants-appellees.

Before TACHA, and McWILLIAMS, Circuit Judges, and BRATTON, District Judge. ^*

TACHA, Circuit Judge.

Oklahoma Education Association, Oklahoma Public Employees Association, and various individually named plaintiffs ("state employees") appeal a district court order upholding both article 28, section 8 of the Oklahoma Constitution and its statutory counterpart, title 37, section 511(D) of the Oklahoma Statutes ("the Oklahoma provisions"), against claims that the Oklahoma provisions violate the first and fourteenth amendments of the United States Constitution, U.S. Const. amends. I, XIV. On appeal, the state employees argue that the district court erred in holding that the Oklahoma provisions do not violate either: (1) the equal protection clause of the fourteenth amendment; (2) the due process clause of the fourteenth amendment; or (3) the first amendment. The state employees further allege that the district court erred in its application of the twenty-first amendment, U.S. Const. amend. XXI, to their equal protection and due process claims. We affirm.

The parties stipulated to the underlying facts giving rise to this action. The Oklahoma Education Association has approximately 46,000 members, who are teachers, support employees and school administrators in the Oklahoma public school system. The Oklahoma Public Employees Association has approximately 11,000 members, who pursue many different professions and occupations as public employees. These associations, along with several named individuals, brought this action challenging Oklahoma's constitutional and statutory provisions prohibiting state employees from working in any phase of the alcoholic beverage business. Three of the individually named plaintiffs were unable to continue their part-time jobs in the alcoholic beverage business due to their inability to obtain employee liquor licenses.

On September 18, 1984, the citizens of Oklahoma in a referendum vote repealed former Article 27 of the Oklahoma Constitution and replaced it with current Article 28. Section 8 of Article 28 continues the former Article 27, section 8 language forbiding state employees from engaging in any phase of the alcoholic beverage business.

Article 28, section 8 of the Oklahoma Constitution states in relevant part:

The State of Oklahoma, or any political subdivision thereof, or any board, commission, agent, or employee thereof, is hereby prohibited from engaging in any phase of the alcoholic beverage business, including the manufacture, sale, transportation, or distribution thereof, at wholesale or retail, and the maintenance, ownership, or operation of warehouses or alcoholic beverage stores; except that if the voters of a county in which a state lodge is located approve retail sale of alcoholic beverages by the individual drink for on-premises consumption, and if the State Legislature enacts legislation approving such sales in any such lodges located in any such counties, then such sales are authorized.

After the public referendum, the Oklahoma legislature enacted the statutory equivalent of Article 28, section 8 in title 37, section 511(D) of the Oklahoma Statutes. The practical significance of the Oklahoma provisions is that Oklahoma state employees can neither obtain liquor licenses nor work in positions in the alcoholic beverage business that require such licenses.

I.

The state employees contend that the district court erred in holding that the Oklahoma provisions do not violate the equal protection clause. This is a question of law that we review de novo. See In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1266 (10th Cir.1988).

Before we analyze the state employees' equal protection claim we first must determine the appropriate level of judicial scrutiny to apply to the Oklahoma provisions. It is well settled that economic and social legislation generally is presumed valid. We will sustain such legislation if the classifications drawn by the statute are rationally related to a legitimate state interest. See Cleburne v. Cleburne Living Center 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). When legislation categorizes persons using "suspect" classifications, such as race or national origin, we depart from the general rule and apply strict scrutiny, sustaining the law only if it is narrowly tailored to serve a compelling state interest. See id. We subject "quasi-suspect" classifications based on characteristics beyond an individual's control, such as gender, illegitimacy, and alienage, to intermediate review, and will uphold the law only if it is substantially related to an important or substantial state interest. See id. at 440-41, 105 S.Ct. at 3254-55; Plyler v. Doe, 457 U.S. 202, 223-24, 102 S.Ct. 2382, 2397-98, 72 L.Ed.2d 786 (1982). The class here, public employees, clearly does not fall within a suspect or quasi-suspect category triggering a level of scrutiny more searching than a rational relationship test.

We will apply strict scrutiny, however, if the state law impinges upon fundamental rights protected by the Constitution. See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (right of a uniquely private nature); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (right to interstate travel); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (right to associate for advancement of political beliefs); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (right to vote). The state employees contend that we should apply strict scrutiny to the Oklahoma provisions because the ability to pursue additional employment in the alcoholic beverage business is a fundamental right. We disagree.

The Supreme Court characterizes the ability to pursue a particular line of employment as a fundamental right only in the limited context of the privileges and immunities clause, U.S. Const. Art. IV, Sec. 2, where a state government attempts to limit employment opportunities to state or municipal residents. See Supreme Court of N.H. v. Piper, 470 U.S. 274, 279-80, 105 S.Ct. 1272, 1275-76, 84 L.Ed.2d 205 (1985) (limiting bar admission to state residents); United Bldg. & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208, 220-22, 104 S.Ct. 1020, 1028-29, 79 L.Ed.2d 249 (1984) (requiring 40% of employees working on city construction projects to be city residents). The purpose of the privileges and immunities clause is to promote interstate harmony and the national economic union. See Piper, 470 U.S. at 279-80, 105 S.Ct. at 1275-76; United Bldg., 465 U.S. at 220-22, 104 S.Ct. at 1028-29. The ability of residents of one state to pursue their occupation in other states is fundamental to this purpose.

The state employees argue that we should extend the Supreme Court's fundamental right analysis under the privileges and immunities clause to the equal protection clause. The Court, however, treats equal protection clause cases in which a party claims a fundamental right to pursue a particular line of employment differently from cases in which the right is asserted under the privileges and immunities clause. In the equal protection clause context, the Supreme Court has never recognized a fundamental right to pursue a particular line of employment. See United Bldg., 465 U.S. at 219, 104 S.Ct. at 1028 (no fundamental right to government employment under the equal protection clause); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (same); see also Edelstein v. Wilentz, 812 F.2d 128, 132 (3d Cir.1987) (citing Murgia, 427 U.S. at 313, 96 S.Ct. at 2566) ("The Constitution does not create fundamental interests in particular types of employment."). Rather, the Supreme Court applies a rational relationship test to state legislation restricting employment opportunities when the restrictions are not based on suspect or quasi-suspect classifications. See Murgia, 427 U.S. at 312-15, 96 S.Ct. at 2566-68; Dandridge v. Williams, 397 U.S. 471, 485 and note 17, 90 S.Ct. 1153, 1161, and note 17, 25 L.Ed.2d 491 (1970) ("[rational relationship] standard [ ] has been consistently applied to state legislation restricting the availability of employment opportunities.").

The Supreme Court's most recent definition of fundamental rights under the fourteenth...