Walker v. Hall

• Decision Date: 14 July 1975
• Docket Number: No. CIV-72-867.,CIV-72-867.
• Citation: 399 F. Supp. 1304
• Parties: Mark WALKER et al., Plaintiffs, v. Honorable David HALL, Governor, State of Oklahoma, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

399 F. Supp. 1304

Mark WALKER et al., Plaintiffs, v. Honorable David HALL, Governor, State of Oklahoma, et al., Defendants.

No. CIV-72-867.

United States District Court, W. D. Oklahoma.

May 17, 1975.

Motion for new trial denied July 14, 1975.

Fred P. Gilbert, Tulsa, Okl., for plaintiffs.

Steven E. Moore, James R. Barnett and James H. Gray, Asst. Attys. Gen., State of Oklahoma (Larry Derryberry, Atty. Gen., State of Oklahoma, on the brief), for defendants.

Before HOLLOWAY, Circuit Judge, DAUGHERTY, Chief District Judge, and EUBANKS, District Judge.

MEMORANDUM OPINION

HOLLOWAY, Circuit Judge.

Plaintiffs Mark Walker and Curtis Craig, young males wishing to purchase 3.2% beer, and Carolyn Whitener, a licensed beer vendor,¹ seek declaratory and injunctive relief against the defendant State officials to prevent enforcement of certain provisions of Oklahoma law regulating the sale of 3.2% beer. 37 O.S.A. §§ 241-245. Specifically, plaintiffs challenge the constitutionality under the Fourteenth Amendment to the Federal Constitution of those provisions of the statutes that prohibit sale to males 18 through 20 years of age of 3.2% beer, while allowing such sale to females of the same ages, as applied to such sales for consumption off the premises of the vendor.²

Relief is sought in this suit under 42 U.S.C.A. § 1983 and federal jurisdiction is claimed pursuant to 28 U.S.C.A. §§ 1343 and 2201. We conclude we have jurisdiction under the jurisdictional grant in § 1343. This three-judge court was convened pursuant to 28 U.S.C.A. § 2281. See Walker v. Hall, No. 73-1267 (10th Cir.), decided October 23, 1973 (unpublished).

After scrutiny of the Oklahoma statutes in question, called for by the sexual classification made, for the reasons outlined below we hold that a rational legislative judgment was made in the alcoholic beverage regulation in question. Regardless of whether the challenges to the law may show it unwise—an argument that is for the legislature—we cannot say the attacks on the law have established that it violates the Federal Constitution.

We uphold the Oklahoma statutes in question for three main reasons: (1) in this case, unlike some others in which the Supreme Court and other courts have invalidated sex-based classifications, proof was made in which we find a rational basis for the legislative judgment underlying the challenged classification; (2) the classification here is directly related to apparent legislative objectives, looking to protection of the persons affected and the public; and (3) the statutes in question concern the regulation of alcoholic beverages—an area where the State's police powers are strengthened by the Twenty-first Amendment.

The arguments and proof of the parties and our findings are detailed below. This opinion shall constitute the findings of fact and conclusions of law of this court required by Rule 52 of the Federal Rules of Civil Procedure.

I

At the outset we are faced with the recurring problem of the proper standard of review to apply in considering a federal constitutional challenge to a sex-based classification.

The plaintiffs argue that sex is an inherently suspect classification requiring strict scrutiny, so that the defendants are burdened with showing that the classification is necessary to the attainment of a compelling state interest, and that there are no less drastic alternatives to subserve the governmental interest (Brief of Plaintiffs 6-9). They rely on Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583; Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L. Ed.2d 225; Lamb v. Brown, 456 F.2d 18 (10th Cir.); and Bassett v. Bassett, 521 P.2d 434 (Okl.App.), among other cases.

Defendants argue that the sale, purchase or trade in intoxicants is not a fundamental right; that the State has extraordinary power over the regulation of intoxicants; and that the traditional equal protection test is the proper one to apply here, under which a classification will be upheld if the statutory goals are legitimate and the classification rests on grounds bearing a rational relationship to the statute's objective. They rely on the standard laid down in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; and McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L. Ed.2d 393 (Brief of Defendants 3-4).

Prior to trial, the court considered one aspect of the problem. We advised the parties that, from a consideration of pertinent cases, the burden of proof rested on the defendants, and that the parties would proceed accordingly at trial. We did not feel required at that time to decide what constitutional standard should apply, it being sufficient then to designate the procedural order for the trial. However, now we must determine the standard to which the Constitution and Supreme Court decisions point. We are not persuaded that the position taken by either party furnishes the answer.

First, we feel the fact that the attack here is on an alcoholic beverage regulation, buttressed by the Twenty-first Amendment, does not call for the use of a less stringent equal protection standard than would otherwise apply, although we feel that this circumstance is to be weighed in our decision. The Supreme Court has recognized that its decisions do not go so far as to hold or say that the Twenty-first Amendment supersedes all other constitutional provisions in the area of liquor regulations. California v. LaRue, 409 U.S. 109, 115, 93 S.Ct. 390, 34 L.Ed.2d 342. See also Hostetter v. Idlewild Liquor Corporation, 377 U.S. 324, 332, 84 S.Ct. 1293, 12 L.Ed.2d 350; Women's Liberation Union of Rhode Island v. Israel, 512 F.2d 106 (1st Cir. 1975). The demands of the Equal Protection Clause still apply, and the standards of review that it mandates are not relaxed.

We feel that Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225, provides the applicable test here. In Reed the Court stated, 404 U.S. at 75-76, 92 S.Ct. at 253:

In such situations, § 15-314 provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause.

In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. (citations omitted) The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstances shall be treated alike.' Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).

Last Term the Court applied the Reed test in Kahn v. Shevin, 416 U.S. 351, 355, 94 S.Ct. 1734, 40 L.Ed.2d 189, in upholding a sex-based classification in a State tax exemption statute. The Court made no reference to the compelling state interest test, despite a vigorous dissent arguing that it applied. And, in fact, the Court observed that "gender has never been rejected as an impermissible classification in all instances." Id., 416 U.S. at 356 n. 10, 94 S.Ct. at 1738.

Moreover, we now have the recent decisions of the Supreme Court in Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688; Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L. Ed.2d 514; and Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610, as further guidance. While these decisions formulate no new test, they at least demonstrate that the Court has not yet required the showing of a compelling governmental interest to sustain sex-based classifications.³ Nor do they indicate a departure from the Reed test. We feel we should not impose a more stringent standard for judging the validity of such classifications, in view of the Supreme Court's obvious failure to do so. Hence we apply the Reed test.

We do feel it clear under Reed that the ordinary presumptions favoring the validity of state statutes do not fully apply where a sex-based classification is made. Nor does it suffice, we believe, that some state of facts may be conceived by the court that might justify the classification. Compare McDonald v. Board of Election Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739. Instead we feel the justification for the sex-based classification must be demonstrated by the State. Lamb v. Brown, 456 F.2d 18, 20 (10th Cir.). Accordingly we have placed the burden of proof on the defendants in our case. We turn now to the evidence they offered in support of the statutory classification, and to the plaintiffs' evidence.

II

The principal proof offered by the defendants to support the rationality of the sex-based classification made by 37 O.S.A. §§ 241 and 245 was some eight exhibits:

Defendants' Exhibit 1 (see Appendix I hereto) is an extract of data compiled by the Oklahoma State Bureau of Investigation from figures submitted by 194 police and sheriff's departments in Oklahoma, showing a breakdown by age and sex of persons arrested in Oklahoma for alcohol related offenses in the last four months of 1973. For the offense of driving under the influence, 427 males in the 18-20 year age group were arrested, as opposed to 24 females. Of the total number of persons of all ages arrested for driving under the influence, 5400 were male and 499 were female. Of those arrested for drunkenness in the 18-20 year age group, 966 were male and 102 were female. However the comparable figures for all ages were 14,713 males and 1,278 females, indicating even more male involvement in such arrests at later ages.

Defendants' Exhibit 2 (see Appendix I hereto) reflects the...