City of Mesquite v. Aladdin's Castle, Inc.

Justice Powell,

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.

*298 I

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, 1 and quoted the relevant Texas constitutional provisions in the margin. 2 The court then, at some length, applied the Fourteenth Amendment’s rational-relationship test to the Mesquite ordinance, citing, quoting, and discussing a total of 18 federal cases in this analysis. In the two initial paragraphs defining the *299 broad principles applied in that analysis, the court cited two Texas cases and quoted briefly from another. 630 F. 2d 1029 , 1035 (CA5 1980).

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, 530 S. W. 2d 927, 928 (Tex. 1975) (citing Reed v. Reed, 404 U. S. 71, 76 (1971)). Of the two other Texas cases cited, one involves an unsuccessful challenge to a zoning ordinance, and in it the Supreme Court of Texas applied the rule that a challenger to a zoning ordinance bears a heavy burden of showing that the exercise of police power is not lawful. City of University Park v. Benners, 485 S. W. 2d 773, 778-779 (1972). This case actually supports the validity of the Mesquite ordinance under Texas law.

In the other case, Falfurrias Creamery Co. v. City of Laredo, 276 S. W. 2d 351 (Tex. Civ. App. 1955), the State had established an inspection program for dairies. One municipality then passed an ordinance under which milk could be sold within its borders only if inspected by a local inspector. The Texas Court of Civil Appeals concluded that this requirement was arbitrary, since the local inspector could easily determine whether other inspectors were “[making] inspections] in accordance with the standard ordinance contemplated by the State law.” Id., at 355 . This single case dealing with a dairy-inspection requirement designed to favor local dairies cannot be the basis for a serious allegation that Texas law would not allow Mesquite to exercise its police power by keeping youths out of pinball parlors.

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 *300 eral court is neither a reference to nor an adoption of an independent state ground. The Court's view allows federal courts overruling state statutes to avoid appellate review here simply by adding citations to state cases when applying federal law.

Nor is the Court’s rigid approach today required by earlier decisions. In Konigsberg v. State Bar of California, 353 U. S. 252, 256-258 (1957), for example, California argued that the California Supreme Court’s order dismissing the petitioner’s prayer for relief was based on an independent and adequate state ground: the requirements of a state procedural rule. The Court nevetheless proceeded to the merits of the federal question without remanding for clarification of the dismissal order’s basis. This Court found the proffered sources of the alleged state procedural rule unconvincing and “concluded] that the constitutional issues are before us and we must consider them.” Id., at 258 (footnote omitted). 3

*301 HH

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 4 state cases is not, of course, determinative. Here, however, the Court of Appeals failed to discuss, explain, describe, or even state Texas law despite extensive discussion of federal law and cases.

The Court’s second point is at least imaginative. It focuses on one sentence from Reed v. Reed, 404 U. S., at 76 , quoted in the Texas case of Texas Woman’s University v. Chayklintaste, 530 S. W. 2d, at 928 , ante, at 294, and n. 17. That sentence reiterated a formulation of rational-basis analysis that was stated in F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920). The Court today then implies that “the Royster Guano standard” may no longer be good law, citing United States Railroad Retirement Bd. v. Fritz, 449 U. S. 166 (1980). 5 From this implication, 6 the Court further *302 infers that “the Texas standard and the federal standard” may not be congruent. The best answer to this speculative syllogism is found in the discussion of rational-basis analysis by the Court of Appeals. In an Appendix hereto I include the three paragraphs of the opinion that discuss the rational-relationship standard of review. It will be noted that nine United States Supreme Court cases were cited. Although three Texas cases were cited also, there is not the slightest indication that the Court of Appeals was distinguishing between federal and state law. Moreover, in the subsequent pages applying rational-relationship review, the court did not cite or discuss a single Texas case or any aspect of Texas law, though 11 federal cases were cited and discussed. 630 F. 2d, at 1039-1040 (not included in Appendix).

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.

*303 APPENDIX TO OPINION OF JUSTICE POWELL *

“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, 384 U. S. 305, 309-10 . . . (1966); Falfurrias Creamery Co. v. City of Laredo, 276 S. W. 2d 351 (Tex. Civ. App. 1955, writ ref'd n.r.e.). Second, the act taken must bear a rational relation to the end it seeks to further. See e. g., Griswold v. Connecticut, 381 U. S. at 505-507 . . . (White, J., concurring); Schware v. Board of Bar Examiners, 353 U. S. 232 , 239 . . . (1957); City of University Park v. Benners, 485 S. W. 2d 773, 778-79 (Tex. 1972), appeal dismissed 411 U. S. 901 .. . (1973).

“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, 530 S. W. 2d 927, 928 (Tex. *304 1979), citing Reed v. Reed, 404 U. S. 71 , 76 . . . (1971). Accord, United States Department of Agriculture v. Moreno, 413 U. S. 528 . . . (1973); James v. Strange, 407 U. S. 128 . . . (1972); Jackson v. Indiana, 406 U. S. 715 . . . (1972); Stanley v. Illinois, 405 U. S. 645 . . . (1972); Eisenstadt v. Baird, 405 U. S. 438 . . . (1972).

“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.” 630 F. 2d, at 1039.

630 F. 2d 1029 , 1038-1039 (CA5 1980):

“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, 440 U. S. 648 (1979) (reaching federal issues when interpretation of State Constitution depends on federal law); Cicenia v. Lagay, 357 U. S. 504, 507, n. 2 (1958) (After looking at record and opinion below, Court concludes that State Supreme Court’s dismissal appears to be based on federal ground); Williams v. Kaiser, 323 U. S. 471 (1945) (The only cited sources for an independent state ground are considered insubstantial by the Court; Court proceeds to merits of federal issue); New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 69 (1928) (Given that State Constitution has no Equal Protection Clause, Court concludes that federal law must have been determinative).

In Herb v. Pitcairn, 324 U. S. 117 (1945), the lower court dismissed complaints with no indication of whether the dismissal was based on state or federal law. The Court continued the cases pending clarification of the lower court’s decisional basis. In announcing this outcome, the Court stated that it would not review a judgment of a state court “until the fact that [the decision] does not [rest on an adequate and independent state ground] appears of record.” Id., at 128 . Pitcairn did not, however, adopt the rigid rule the Court apparently adopts today. The Court continued to be willing to look at available record evidence (none was available in Pitcairn) to determine whether the decision below was based on an ade *301 quate and independent state ground. See Cicenia v. Lagay, supra; Konigsberg v. State Bar of California, 353 U. S. 252 (1957).

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 630 F. 2d, at 1034, n. 8.

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 *302 protection principles.” 449 U. S., at 177, n. 10 . In view of the example we have set, there is no reason to perceive inferences of divergent federal- and state-court views because of the failure of the Court of Appeals or Texas courts to use entirely consistent terminology.

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. 630 F. 2d, at 1041. No less than 29 federal cases were cited for this conclusion. No Texas case was cited. Id., at 1041-1044.

This includes the entire discussion of the rational-basis standard of review by the Court of Appeals. 630 F. 2d, at 1039. It is this portion of the Court of Appeals’ opinion that the Court today relies on for saying that “it is surely not evident that the Texas standard and the federal standard are congruent.” Ante, at 294. See supra, at 301-302, and n. 6.