Lead Opinion
delivered the opinion of the Court.
The United States Court of Appeals for the Fifth Circuit declared unconstitutional two sections of a licensing ordi
On April 5, 1976, to accommodate the proposal of Aladdin’s Castle, Inc. (Aladdin), to open an amusement center in a shopping mall, the city exempted from the prohibition against operation of amusement devices by unattended children certain amusement centers, the features of which were defined in terms of Aladdin’s rules, as long as children under the age of seven were accompanied by an adult.
On February 7, 1977, less than a month after the city had complied with the state-court injunction by issuing the license to Aladdin, the city adopted a new ordinance repealing Aladdin’s exemption, thereby reinstating the 17-year age requirement, and defining the term “connections with criminal elements” in some detail.
Invoking our appellate jurisdiction under 28 U. S. C. § 1254(2), the city now asks us to reverse the judgment of the Court of Appeals. After we noted probable jurisdiction,
I
A question of mootness is raised by the revision of the ordinance that became effective while the case was pending in the Court of Appeals. When that court decided that the term “connections with criminal elements” was unconstitutionally vague, that language was no longer a part of the ordinance. Arguably, if the court had been fully advised, it would have regarded the vagueness issue as moot.
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford,
After receiving recommendations from the Chief of Police, the Chief Building Inspector, and the City Planner, the City Manager decides whether to approve the application for a license; if he disapproves, he must note his reasons in writing. The applicant may appeal to the City Council. If the City Manager disapproved the application because of the Chief of Police’s adverse recommendation as to the applicant’s character, then the applicant must show to the City Council that “he or it is of good character as a law abiding citizen,” which is defined in the ordinance to “mean substantially that standard employed by the Supreme Court of the State of Texas in the
The applicant’s possible connection with criminal elements is merely a subject that the ordinance directs the Chief of Police to investigate before he makes a recommendation to the City Manager either to grant or to deny a pending application. The Federal Constitution does not preclude a city from giving vague or ambiguous directions to officials who are authorized to make investigations and recommendations. There would be no constitutional objection to an ordinance that merely required an administrative official to review “all relevant information” or “to make such investigation as he deems appropriate” before formulating a recommendation. The judgment of the Court of Appeals was therefore incorrect insofar as it held that the directive to the Chief of Police is unconstitutionally vague.
II
The Court of Appeals stated that its conclusion that the age requirement in the ordinance is invalid rested on its interpretation of the Texas Constitution as well as the Federal Constitution:
“We hold that the seventeen year old age requirement violates both the United States and Texas constitutional guarantees of due process of law, and that the application of this age requirement to coin-operated amusement centers violates the federal and Texas constitutional guarantees of equal protection of the law.”630 F. 2d 1029 , 1038-1039 (1980) (footnotes omitted).
Because our jurisdiction of this appeal is based on 28 U. S. C. §1254(2), we are precluded from reviewing the Court of Appeals’ interpretation of the Texas Constitution. For the federal statute provides:
“Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:
“(2) By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by writ of certio-rari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented . . . .”
If the Texas Constitution provides an independent ground for the Court of Appeals’ judgment, our possible disagreement with its exposition of federal law would not provide a sufficient basis for reversing its judgment. If that be so, we should simply dismiss the appeal insofar as the city seeks review of the invalidation of the age requirement. Cf. United States v. Hastings,
The city contends, however, that the Court of Appeals did not place independent reliance on Texas law but merely
It is first noteworthy that the language of the Texas constitutional provision is different from, and arguably significantly broader than, the language of the corresponding federal provisions. As a number of recent State Supreme Court decisions demonstrate, a state court is entirely free to read its own State’s constitution more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this Court in favor of a different analysis of its corresponding constitutional guarantee. See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977), and cases cited therein. Because learned members of the Texas Bar sit on the Court of Appeals for the Fifth Circuit, and because that court confronts questions of Texas law in the regular course of its judicial business, that court is in a better position than are we to recognize any special nuances of state law. The fact that the Court of Appeals cited only four Texas cases is an insufficient
Second, it is important to take note of the Court of Appeals’ interpretation of the Texas “requirement of legislative rationality.” That interpretation seems to adopt a standard requiring that a legislative classification rests “ ‘ “upon some ground of difference having a fair and substantial relation to the object of the legislation . . .
Finally, and of greater importance, is this Court’s policy of avoiding the unnecessary adjudication of federal constitutional questions. As we recently have noted, see Minnick v. California Dept. of Corrections,
The judgment of the Court of Appeals is reversed in part, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Notes
Section 6 of Ordinance 1353 of the Code of the city of Mesquite provided in pertinent part:
“Any person desiring to obtain a license for a coin-operated amusement establishment shall apply to the City Secretary by original and five (5) copies, one of which shall be routed to the City Manager, Chief of Police, Chief Building Inspector and City Planner, for review.
“Upon approval by each of the parties and payment of the license fee, the City Secretary shall issue a license for such establishment, which shall be valid for one (1) year and shall be non-transferable.
“The Chief of Police shall make his recommendation based upon his investigation of the applicant’s character and conduct as a law abiding person and shall consider past operations, if any, convictions of felonies and crimes involving moral turpitude and connections with criminal elements, taking into consideration the attraction by such establishments of those of tender years.
“The Chief Building Inspector and City Planner shall determine compliance with applicable building and zoning ordinances of the City.
“When the City Manager has received the recommendations from the Chief of Police, Chief Building Inspector and City Planner, he shall review such application together with such recommendations as may be furnished and shall approve such application or disapprove same with written notation of his reasons for disapproval.
“Upon disapproval, the applicant may make such corrections as noted and request approval, request withdrawal and refund of license fee, or give notice of appeal from the City Manager’s decision.
“In the event of appeal from the City Manager’s decision the applicant shall give written notice of his intention to appeal within ten (10) days of notice of the City Manager’s decision. Such appeal shall be heard by the City Council within thirty (30) days from date of such notice unless a later date is agreed upon by applicant.
“Upon appeal to the City Council of the City Manager’s decision based upon an adverse recommendation by the Chief of Police as to applicant’s character, the applicant shall have the same burden as prescribed in Article 305, V. A. C. S. to show to the Council that he or it is of good character as a law abiding citizen to such extent that a license should be issued.
*286 “Upon hearing the Council may reverse the decision of the City Manager in whole or in part or may affirm such decision.
“An applicant may appeal such decision to the District Court within thirty (30) days but such appeal shall be upon the substantial evidence rule.
“For violation of any of the requirements of this ordinance the City Manager may upon three (3) days notice of Licensee revoke the license granted hereunder. The same rights of appeal shall exist upon revocation as upon disapproval of the original application.” App. to Juris. Statement 9-10.
Section 5 provides:
“It shall be unlawful for any owner, operator or displayer of coin-operated amusement machines to allow any person under the age of seventeen (17) years to play or operate a coin-operated amusement machine unless such minor is accompanied by a parent or legal guardian.” Id., at 8.
See Ordinance 1310.
The judgment of the trial court was affirmed by the Texas Court of Civil Appeals,
Section 9 of Ordinance 1353 defined terms used in § 6 of the ordinance (quoted in n. 2, supra), which had been reenacted without change. Section 9 provided in pertinent part:
“Connection With Criminal Elements is defined as that state of affairs wherein an applicant, or an officer of, principal stockholder of, person having a substantial interest in or management responsibility for, a corporation or other organization wherein such organization is the applicant, directly or as parent, subsidiary or affiliate, has such association, acquaintance, or business association with parties having been convicted of a felony or crime involving moral turpitude or are otherwise involved in unlawful activities, whether convicted or not, to the extent that the fencing of stolen merchandise or illegally obtained funds, the procuring of prostitutes, the transfer or sale of narcotics or illegal substances is made more feasible or likely or the protection of those of tender years from such unwholesome influences are rendered more difficult.
“A determination by the United States Department of Justice that a party is a member of the ‘mafia’ or ‘Cosa Nostro’ family or that such party is engaged in or affiliated with a nationwide crime organization, whether for*288 mally or informally, shall be prima facia evidence, so far as the issuance of a license hereunder, that such person has ‘connections with criminal elements’ and constitute, within the meaning of this ordinance, ‘criminal elements’.” App. to Juris. Statement 12-13.
See Ordinance 1410, App. to Brief for Appellee Al-All.
If it becomes apparent that a case has become moot while an appeal is pending, the judgment below normally is vacated with directions to dismiss the complaint. See United States v. Munsingwear, Inc.,
"The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ‘[t]he defendant. . . free to return to his old ways.’ United States v. W. T. Grant Co.,
Indeed, the city has announced just such an intention. See Tr. of Oral Arg. 18-20.
The Court of Appeals summarized the relevant authorities as follows:
“A law is void for vagueness if persons ‘of common intelligence must necessarily guess at its meaning and differ as to its application . . . Smith v. Goguen,415 U. S. 566 , 572 n. 8, quoting Connally v. General Construction Co.,269 U. S. 385 , 391. See generally Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960). The offense to due process lies in both the nature and consequences of vagueness. First, vague laws do not give individuals fair notice of the conduct proscribed. Papachristou v. City of Jacksonville,405 U. S. 156 , 162. Accord Grayned v. City of Rockford,408 U. S. 104 , 108 & n. 3. Second, vague laws do not limit the exercise of discretion by law enforcement officials; thus they engender the possiblity of arbitrary and discriminatory enforcement. Grayned v. City of Rockford,408 U. S. at 108-09 & n. 4; Papachristou v. City of Jacksonville,405 U. S. at 168-70 . Third, vague laws defeat the intrinsic promise of, and frustrate the essence of, a constitutional regime. We remain ‘a government of laws, and not of men,’ Marbury v. Madison, 5 U. S. (1 Cranch.) 137, 163, only so long as our laws remain clear.”630 F. 2d, at 1037 (citations abbreviated).
The ordinance is quoted in pertinent part in n. 2, supra.
Article 1, § 19, of the Texas Constitution provides:
“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”
Article 1, § 3, of the Texas Constitution provides in pertinent part:
“All free men, when they form a social compact, have equal rights . . . .”
“Review of a judgment which we cannot disturb, because it rests adequately upon a basis not subject to our examination, would be an anomaly.”
If this contention is correct, we may review the Court of Appeals’ interpretation of federal law. Cf. Zacchini v. Scripps-Howard Broadcasting Co.,
In a section of its opinion entitled “Rational Basis,” the Court of Appeals twice set forth a rational-basis test. See
Our dissenting Brethren suggest that our “view allows federal courts overruling state statutes to avoid appellate review here simply by adding citations to state cases when applying federal law,” post, at 300 (Powell, J., concurring in part and dissenting in part). We are unwilling to assume that any federal judge would discharge his judicial responsibilities in that fashion. In any event, in this case we merely hold that the Court of Appeals must explain the basis for its conclusion, if there be one, that the state ground is adequate and independent of the federal ground.
Cf. Mental Hygiene Dept. v. Kirchner, supra, at 196-197 (footnotes omitted):
“The California Supreme Court did not state whether its holding was based on the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States or the equivalent provisions of the California Constitution, or both. While we might speculate from the choice of words used in the opinion, and the authorities cited by the court, which provision was the basis for the judgment of the state court, we are unable to say with any degree of certainty that the judgment of the California Supreme Court was not based on an adequate and independent nonfederal ground. This Court is always wary of assuming jurisdiction of a case from a state court unless it -is plain that a federal question is necessarily presented, and the party seeking review here must show that we have jurisdiction of the case. Were we to assume that the federal question was the basis for the decision below, it is clear that the California Supreme Court, either on remand or in another case presenting the same issues, could inform us that its opinion was in fact based, at least in part, on the California Constitution, thus leaving the result untouched by whatever conclusions this Court might have reached on the merits of the federal question. For reasons that follow we conclude that further clarifying proceedings in the California Supreme Court are called for under the principles stated in Minnesota v. National Tea Co.,309 U. S. 551 .”
Concurrence Opinion
concurring in part and dissenting in part.
I concur in the Court’s holding that Mesquite’s ordinance directing the Chief of Police to consider whether a license applicant has any “connections with criminal elements” is not void for vagueness.
Like Justice Powell, however, I dissent from the Court’s remand of the challenge to the age requirements in §5 of the Mesquite ordinance. The sentiment to avoid unnecessary constitutional decisions is wise, but there is no reason in this case to suspect that the Fifth Circuit’s standard for evaluating appellee’s due process and equal protection claims under the Texas Constitution differed in any respect from federal constitutional standards. I agree with Justice Powell that “the inclusion of three cursory state-law citations in a full discussion of federal law by a federal court is neither a reference to nor an adoption of an independent state ground. ” Post, at 299-300 (concurring in part and dissenting in part).
I refrain from joining Justice Powell’s detailed discussion in support of this position only because I would prefer not to engage in debate over the present health of “the Roys-
I fear that we have lost sight of the fact that our reason for pursuing this inquiry is to avoid rendering advisory opinions on federal constitutional law. It is ironic that in seeking to skirt a relatively narrow issue of whether the Mesquite age requirement is constitutional, an issue decided by the Court of Appeals and fully briefed, the Court has instead entered into highly abstract, totally advisory, speculation as to the continuing validity of one of our earlier statements on a matter of no small constitutional importance. If it is necessary to interpret a case twice removed and totally unrelated to the matter before us in order to justify a remand to the Court of Appeals, I would think it clear that no independent nonfed-eral basis for the decision is present. Delaware v. Prouse,
I agree that this issue has not been mooted by the city’s revision of the ordinance. This conclusion is not inconsistent with our recent disposition of Princeton University v. Schmid, ante, p. 100 (per curiam). In that case, Princeton University's regulations governing solicitation and similar activity on University property were held invalid by the New Jersey Supreme Court. While the case was pending before the New Jersey court, Princeton substantially amended the contested regulations. On appeal to this Court, we held that the validity of the old regulations had become a moot issue. Unlike the city of Mesquite, Princeton gave no indication that it desired to return to the original regulatory scheme and would do so absent a judicial barrier. In this case, as noted in the Court’s opinion, Mesquite “has announced just such an intention.” Ante, at 289, n. 11. Because the test of whether the cessation of allegedly illegal action moots a case requires that we evaluate the likelihood that the challenged action will recur, County of Los Angeles v. Davis,
Concurrence Opinion
concurring in part and dissenting in part.
I concur in the Court’s holding that Mesquite Ordinance 1353, §6, is not void for vagueness. I dissent, however, from the Court’s remand of the challenge to § 5.
The jurisdictional basis for the Court’s review of this case is 28 U. S. C. § 1254(2), which provides for mandatory Supreme Court review of federal appellate decisions overturning state statutes on federal constitutional grounds. Rather than exercising this jurisdiction, the Court remands the case to the Court of Appeals to clarify whether its decision is based on Texas law. In the past, the Court has not automatically required clarification when the record reveals that the lower court’s decisional basis is federal law. In this case, the opinion of the Court of Appeals contains no analysis of state law independent of its clear application of federal law. In my view there is no justification for a remand.
The city of Mesquite, Tex., adopted an ordinance stating that owners of coin-operated pinball machines should not allow their operation by youths under the age of 17 years. In the decision below, the Court of Appeals held that this ordinance violated equal protection and due process as well as First Amendment rights of free speech and association. The. court’s opinion referred to the Texas Constitution’s Due Process and Equal Protection Clauses,
These Texas cases do not suggest an adequate and independent state ground for overruling the Mesquite ordinance. In the quoted case, the Texas court was describing federal, not Texas, law. Texas Woman’s University v. Chayklintaste,
In the other case, Falfurrias Creamery Co. v. City of Laredo,
On the basis of an inference as weak as that afforded by Falfurrias Creamery, I would not remand to any court, state or federal. But even if the cited case law provided some support for appellee’s challenge, the inclusion of three cursory state-law citations in a full discussion of federal law by a fed
Nor is the Court’s rigid approach today required by earlier decisions. In Konigsberg v. State Bar of California,
The Court gives three reasons for remanding. First, it observes that the language of the State Constitution, quoted in n. 2, supra, differs from that in the Federal Constitution and Texas may afford broader protection to individual rights than does the Federal Government. The relevant question is not, however, whether state law could be, or even is, different from federal law, but whether the Court of Appeals decided the case before it on state or federal grounds. In deciding this question, the citation of only three
The Court’s second point is at least imaginative. It focuses on one sentence from Reed v. Reed,
Finally, the Court relies on our traditional reluctance to decide a constitutional question unnecessarily. But we noted jurisdiction to consider the validity of the Mesquite ordinance, and this question is squarely presented. As a general matter, the Court should avoid unnecessary remands; this is particularly true when the Court’s mandatory jurisdiction has been invoked under § 1254(2). Neither the Court of Appeals nor appellee has presented any substantial reason for thinking that the Mesquite ordinance is invalid under Texas law independently of federal law that clearly was the basis for the decision below. In these circumstances, we have a duty to decide the substantive questions presented.
“1. Rational Basis
“Assuming that the rational basis test is the appropriate standard of review, we conclude that no such rationality supports ordinance No. 1353. The test requires that legislative action be rationally related to the accomplishment of a legitimate state purpose. First, the challenged legislation must have a legitimate public purpose based on promotion of the public welfare, health or safety. See, e. g., Rinaldi v. Yeager,
“The requirement of legislative rationality in the service of legitimate purposes protects individuals and their liberties from official arbitrariness or unthinking prejudice. As one commentator noted, irrationality at least means ‘patently useless in the service of any goal apart from whim or favoritism.’ Michelman, Politics and Values or What’s Really Wrong with Rationality Review? 13 Creighton Law Review 487, 499 (1979). The test requires that legislation constitute a means that is ‘reasonable, not arbitrary and rests “upon some ground of difference having a fair and substantial relation to the object of the legislation . . . ” ’ Texas Woman’s University v. Chayklintaste,
“Examination of ordinance No. 1353 reveals two stated purposes. First, the ordinance seeks to prevent truancy. Second, it seeks to keep minors from being exposed to people ‘who would promote gambling, sale of narcotics and other unlawful activities.’ We conclude that the seventeen year old age requirement in no way rationally furthers these interests in regulating the associational activity of Mesquite’s young citizens, even making the assumption that both of these goals are legitimate.”
“We hold that the seventeen year old age requirement violates both the United States and Texas constitutional guarantees of due process of law, and that the application of this age requirement to coin-operated amusement centers violates the federal and Texas constitutional guarantees of equal protection of the law” (footnotes omitted).
Tex. Const., Art. I, §3 (“All free men, when they form a social compact, have equal rights . . .”) and § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land”).
See also Delaware v. Prouse,
In Herb v. Pitcairn,
The Court reports that the Court of Appeals cited four Texas cases, but one case was cited as procedural history in the dispute between these parties, not as relevant to any question of Texas law. See
Fritz was decided on December 9, 1980; as the Court of Appeals had decided this case on November 17, 1980, it could not have been influenced by Fritz.
This Court has never rejected either Royster Guano or Reed v. Reed. As stated in Fritz, “[t]he most arrogant legal scholar would not claim that all [Supreme Court] cases appl[y] a uniform or consistent test under equal
Moreover, after its generalizations as to rational-basis analysis, the Court of Appeals for the Fifth Circuit went on to say that even if “the challenged ordinance had a rational basis ... we would nevertheless be compelled to strike it down” as an infringement of the fundamental right of association.
This includes the entire discussion of the rational-basis standard of review by the Court of Appeals.