Petition — Hogge v. Johnson

Supreme Court brief1976

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IN THE

Supreme Court of the Anited States

N75 -99%

PATRICIA HOGGE, EARLE PHILLIPS

T/A PARADISE MASSAGE PARLOR, AND BO-JAC, LTD.

Petitioners,

Vv.

C.E. JOHNSON, CITY MANAGER, AND PATRICK G. MINETTI

CHIEF OF POLICE, CITY OF HAMPTON, VIRGINIA,

EACH IN THEIR OFFICIAL CAPACITY

Respondents,

SCARLETT ANNE HILLIARD AND EARLE PHILLIPS,

FRENCH MASSAGE PARLOR

Petitioners,

WILLIAM E. LAWSON, CITY MANAGER, AND HOWARD B.

BLACKMON, CHIEF OF POLICE, CITY OF NEWPORT NEWS,

VIRGINIA, EACH IN THEIR INDIVIDUAL CAPACITY

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

KENNETH C. HOGGE

Citizens & Marine Bank Bldg.,

Hampton, Virginia

REBECCA APRIL FITCH

19 Logan Circle, N.W.

Washington, D.C. 20005

Se Re EE ED

THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Washington, DO. C.-223-1220

DEC 31 1975

INDEX

OPINIONS BELOW .

JURISDICTION .

STATUTORY AND CONSTITUTIONAL PROVISIONS

INVOLVED

QUESTIONS PRESENTED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

Il.

The Court Below Improperly Interpreted and Applied

Hicks v. Miranda — a Case Decided on June 24, 1975,

and Therefore Neither Briefed nor Argued by the

Parties — When, Without Conducting the Complete

Inquiry Required by Hicks and Without Providing the

Parties an Opportunity To Be Heard on the Subject, It

Held That the Supreme Court’s Dismissal for Want of

a Substantial Federal Question of the Appeal in Another

Case, Which Involved a Different Statute and in Which

the Issues in This Case Were Not Properly Presented to

the Supreme Court, Foreclosed the Relief Sought ”

Appellants in This Case . Ome ae

The Court Below Erroneously Applied Hicks v. Miranda

in This Case Because Significant Doctrinal Developments

Have Occurred Since This Court’s Dismissal of the Ap-

peal in Kisley v. Falls Church for Want of a Substantial

Federal Question . Oe le! ee a eon b

Where This Court Takes Summary Action on an Appeal

Within Its Obligatory and Where the Court Has Not Pre-

viously Fully Addressed the Issues Presented the Deci-

sion of the State Court Should Not Be Given the Same

Stare Decisis As the Opinions of This Court .

ss Un WS WN

(ii)

Page

IV. The Court Below Erred in Its Holding that Petitioners

Should Not Be Afforded Declaratory Relief on Their

Claims on the Basis of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e When Petitioners Had Estab-

lished Standing and Where They Employed Fifteen (15)

or More Employees as Required by the Act but These

Employees Were Located in Adjoining Towns Instead

of the Same Place of Business. . . . . . ... . 16

V. This Court’s Previous Denial In This Case of Respond-

ent’s Petition for a Writ of Certiorari From the Deci-

sion of the Court Below That Substantial Federal

Questions Were Presented in This Case is Res Judicata

As te That Issue Where No Change Has Occurred in

the Relationship of the Parties or Their Circumstances. 19

DE « 6.44.6 k wie « * « 4.6 28 20

Appendix A — Opinion of the District Court for the

Eastern District of Virginia... ... =. la

Appendix B — Opinion of the United States Court of

Appealsforthe FourthCircuit . .... . 23a

Appendix C — Judgment of the United States Court of

Appeals for the Fourth Circuit 3la

Appendix D — Order of the United States Court of

Appeals for the Fourth Circuit denying

SE Via oa ee ate” wg 32a

(iii)

TABLE OF AUTHORITIES

Cases:

Adams v. Allen,

121 S.E.2d 364, 202 Va. 941 (1961)

Adler v. Board uf Education of the City of

New York, 342 US. 485 (1951).

Brown v. Allen,

344 US. 443 (1953)

Cardinale v. Louisiana,

394 US. 437 (1969)

Caterpillar Tractor Co. v. Arabic,

317 F. Supp. 1304 (S.D. 11. 1970) .

Corey v. Dallas,

352 F. Supp. 977 (ND. Texas 1972), reversed on

other grounds, 492 F .2d 496 (Sth Cir. 1974)

Dewey v. Des Moines,

173 US. 193 (1899)

Diaz v. Pan American Airways, Inc.,

442 F.2d 385 (Sth Cir. 1971), cert. denied,

404 US.950 (1971) 4

Emerson v. Newport News,

482 F.2d 575 (4th Cir. 1973), cert. denied,

416 US. 955 (1974) '

Ex Parte Maki,

56 Cal. App.2d 635, 133 P.2d 64 (1943) .

Fronterio v. Richardson,

411 US.93 (1973) .

(iv)

Page

Giancolo v. Members of the City Council of K noxville,

376 F. Supp. 719 (E.D.N.D.Tenn.1974) . .... . 14

Harper v. Virginia State Board of Education,

oe el eee eee a eee ee 11

Hicks v. Miranda,

422 US. 322 (1975) oa 4 eee

8,9, 10, 13,20

Hogge v. City Council of Hampton,

482 F.2d 403, reh. denied, 488 F.2d 403 (4th Cir.

1973), cert. denied, 416 US.955 (1974). . . . . . 5,17,19

J.S.K. Enterprises v. Lacey,

492 P.2d 600,6 Wash.App.43(1971) ....... ., 14

Joseph v. Blair,

482 F.2d 575 (4th Cir. 1973), cert. denied,

OS, ee

Joseph v. House,

353 F. Supp. 367 (E.D. Va. 1973),

482 F.2d 575 (4th Cir. 1973), cert. denied,

S6US.COCGQUTE «6k tc ee bee eee

Kisley v. City of Falls Church,

212 Va. 693, 187 S.E.2d 1968 (1972),

app. dism. 409 US.907(1972). . . . ... .. 5,6,8,

9,10,11,12,13,14

Lancaster v. Municipal Court of Beverly Hills, |

6 Cal.3d 805, 494P.2d481(1972). . . . . .. . . 14,19

Loving v. Virginia,

TRUS. 0GGGR . 6 wk ke «eee 1]

McLaughlin v. Florida,

TOUS. WA. kk es ee eee

(v)

National Maritime Union v. Norfolk,

119 §.E.2d 307, 202 Va. 672 (1961)

Port Authority Bondholders Protective Committee v.

Port of New York Authority, 387 F .2d 259 (2nd Cir.

1967)

Reed v. Reed,

404 US.71 (1971) .

Rosenfield v. Southern Pacific Company,

444 F.2d 1219 (9thCir.19 )

Rubenstein v. Township of Cherry Hill,

(N.J. 1974), appl dismissed, 417 US. 963 (1974) .

Safeway Stores v. Oklahoma Grocers,

360 U.S. 334 (1959)

Sail'er Inn v. Kirby,

95 Cal. Rptr. 329, 485 P.2d 529 (1971)

Smith v. Keator,

206 S.E.2d 203, 285 N.C. 530, appeal

dismissed, 419 U.S. 1043 (1974)

State Farm Mutual Ins. Co. v. Duel.

324 US. 154 (1944)

Whitney v. California,

274 US. 357 (1926)

Wilson v. Cook.

327 US. 474 (1945)

Younger v. Harris,

401 U.S. 37 (1971) .

. 10

13,14

. 5,6

(vi)

Statutes: Page

en ae

any tc ce ee eee ee ee Ce eee

ee ee oe ee a ee ee

Pens 6 ©. o © @ 0 «*e d-s Gea ee aoe

3) Se ae

Chapter 21c—City Code of Newport News, Virginia . . . . . 2

Chapter 22.1—City Code of Hampton, Virginia. . . . . . 3,11

Other Authorities:

Senate Report No. 1005, 73«i Cong., 2d Session (1934) . . . . 17

eee ee ee ee ee

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No.

PATRICIA HOGGE, EARLE PHILLIPS

T/A PARADISE MASSAGE PARLOR, AND BO-JAC

Petitioners,

C.E. JOHNSON, CITY MANAGER, AND PATRICK G. MINETTI,

CHIEF OF POLICE, CITY OF HAMPTON, VIRGINIA,

EACH IN THEIR OFFICIAL CAPACITY

Respondents,

SCARLETT ANNE HILLIARD AND EARLE PHILLIPS,

T/A FRENCH MASSAGE PARLOR

Petitioners,

WILLIAM E. LAWSON, CITY MANAGER, AND HOWARD B.

BLACKMON, CHIEF OF POLICE, CITY OF NEWPORT NEWS,

VIRGINIA, EACH IN THEIR INDIVIDUAL CAPACITY

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Petitioners respectfully petition this Court to issue a writ

of certiorari to review the judgment which the United States

Court of Appeals for the Fourth Circuit entered in this pro-

ceeding on August 19, 1975.

OPINION BELOW

The opinions of the United States District Court for

the Eastern District of Virginia and the United States

Court of Appeals for the Fourth Circuit are unreported.

The former (Civil Action No. 42-72-NN and 48-72-NN,

April 10, 1974) is attached hereto as Appendix A. The

latter “No. 74-1656 and 74-1657, August 19, 1975) is

attached hereto as Appendix B. The judgment of the

Court of Appeals is attached as part of Appendix B. The

Court of Appeals’ denial of petitioners’ petition for re-

hearing and suggestion for rehearing en banc is attached

hereto as Appendix C.

JURISDICTION

The decision of the Court of Appeals was entered on

August 19, 1975. The order of the Court of Appeals

denying Petitioner’s motion for rehearing and suggestion

for rehearing en banc was entered on September 26, 1975.

By order of December 24, 1975, the Chief Justice ex-

tended the time for filing for a writ of certiorari to and

including December 31, 1975. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

Chapter 21-C of the Newport News, Virginia City Code

provides:

It shall be unlawful for any establishment, owner,

or operator, regardless of whether it is a public

or private facility, to operate as a massage par-

lour, bat parlour, health club, or any similar type

business, where any physical contact or massage

with the recipient of the service provided by said

establishment is provided by a person of the op-

posite sex.

It shall be unlawful for any employee, individual

owner or operator of such establishment or any

other type of establishment to give or administer

a massage to any member of the opposite sex.

Chapter 22.1 of the Hampton, Virginia City Code pro-

vides in pam:

It shall be unlawful to administer, for hire or

reward, to any person of the opposite sex any

massage, any alcohol rub or similar treatment,

any fomentation, any bath, or any electric or

magnetic treatment, nor shall any person cause

or permit in or about his place of business or

in connection with his business, any agent, em-

ployee or servant or any other person under his

control or supervision to administer any such

treatment to any person of the opposite sex.

Title 42, section 2000(e)(b) of the United States Code

provides in part:

(b) The term “employer” means a person en-

gaged in an industry affecting commerce who

has fifteen or more employees for each working

day in each of twenty or more calendar weeks

in the current or preceding calendar year .. .

QUESTIONS PRESENTED

1. Whether the Court below erred in holding on the

basis of this Court’s decision in Hicks v. Miranda _US.

___ , 94 §. Ct. 2281 (1975), dismissal of an appeal in a

prior case precluded a determination of the issues in this

case where petitioners had not been afforded an opportu-

nity to ascertain what issues were properly presented in

the prior appeal to this Court and where significant doc-

trinal developments have occurred since that appeal?

2. Whether when this Court takes summary action

upon an appeal within its obligatory jurisdiction where it

has not previously fully addressed the issues presented the

decision of the state court should be given the same stare

decisis effect as the opinions of this Court?

3. Whether the Court below erred in its holding that

Petitioners should not be afforded declaratory relief on

their claims on the basis of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e when Petitioners had es-

tablished standing and where they employed fifteen (15)

or more employees as required by the Act but these em-

ployees were located in adjoining towns instead of the

same place of business?

4. Whether this Court’s denial of Respondent’s petition

for a writ of certiorari from the decision of the Court be-

low that substantial federal questions were presented in

this case is res judicata as to that issue where no change

in the relationship of the parties or their circumstances

has occurred?

STATEMENT OF THE CASE

Petitioners are massage parlor owners and masseuses who

challenged the constitutionality of two local ordinances pro-

hibiting assaging of persons by members of the opposite

sex. Petitioners contended that these ordinances violate

the Equal Protection Clause of the Fourteenth Amendment

fo the United States Constitution and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §2000e. They alleged juris-

diction in the District Court under 42 U.S.C. § 1983 and 28

U.S.C. § 1343(3), 42 U.S.C. § 2000c and under 28 U.S.C. 2201.

In 1972, when first presented with these claims, the United

States District Court for the Eastern District of Virginia

(the Honorable Richard B. Kellam, presiding) abstained from

exercising its jurisdiction on the grounds that Younger v.

Harris, 401 U.S. 37 (1971), applied even in cases where

no state prosecutions under the challenged criminal statute

were pending at the time that the case challenging the stat-

ute in question was initiated in federal district court, and

that the decision of the Virginia Supreme Court in Kisley

v. Falls Church, 212 Va. 693, 182 S.E.2d 168 (1972), was

binding upon the district court and thereby precluded re-

lief in this case. Petitioners appealed that decision to the

United States Court of Appeals for the Fourth Circuit,

which reversed the district court’s rulings and remanded

for further proceedings. Joseph v. Blair, Hogge v. Hamp-

ton, Emerson v. Newport News, 472 F.2d 575 (1973). Re-

spondents’ petition for rehearing and suggestion for rehear-

ing en banc were denied. 488 F.2d 403 (1973).

Respondents then petitioned this Court for a Writ of

Certiorari, relying upon the contentions that this Court’s

subsequent dismissal of the appeal from the decision in

Kisley v. Falls Church, for want of a substantial federal

question, 409 U.S. 907 (1972), determined all federal is-

sues raised by petitioners and that the Court of Appeals

had improperly interpreted the scope of the Younger v.

Harris doctrine. (Petition for Writ of Certiorari in Blair

v. Joseph, United States Supreme Court, No. 73-978.) That

petition was denied. Blair v. Joseph, 416 U.S. 955 (1974).

After the hearing upon remand, the district court up-

held the constitutionality of the ordinances and concluded

that it did not have jurisdiction under Title VII of the

1964 Civil Rights Act, supra. Petitioners appealed these

rulings and the appeal was argued on January 8, 1975.

On August 19, 1975, relying entirely on Hicks v. Miranda,

422 U.S. 322 (1975), which this Court decided on June

24, 1975, the Fourth Circuit held that it was precluded

from deciding the equal protection issues raised by peti-

tioners because this Court’s dismissal of the appeal in

Kisley v. Falls Church, supra, was “‘a perfectly clear

precedent that is binding upon us.”’ (Appendix B, at 29a).

The Court of Appeals also held that the district court’s

determination that jurisdiction did not lie under the 1964

Civil Rights Act was “not clearly erroneous.”” (Appendix

B, at 29a). Petitioners’ petition for rehearing and sugges-

tion for rehearing en banc were denied by the Court of

Appeals on September 26, 1975. On December 24, 1975,

the Chief Justice granted petitioners’ motion to extend the

time in which to file this petition for a writ of certiorari

to December 31, 1975.

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

THE HOLDING OF THE UNTIED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT RE-

SOLVED A FEDERAL QUESTION IN A WAY IN

CONFLICT WITH APPLICABLE DECISIONS OF

THIS COURT AND DECIDED AN IMPORTANT

QUESTION OF FEDERAL LAW WHICH HAS NOT

BEEN, BUT SHOULD BE, DECIDED BY THIS COURT.

I. THE COURT BELOW IMPROPERLY INTERPRETED

AND APPLIED HICKS V. MIRANDA, SUPRA, — A

CASE DECIDED ON JUNE 24,1975, AND THEREFORE

NEITHER BRIEFED NOR ARGUED BY THE PARTIES —

WHEN, WITHOUT CONDUCTING THE COMPLETE IN-

QUIRY REQUIRED BY HICKS AND WITHOUT PRO-

VIDING THE PARTIES AN OPPORTUNITY TO BE

HEARD ON THE SUBJECT, IT HELD THAT THE SU-

PREME COURT'S DISMISSAL FOR WANT OF A SUB-

STANTIAL FEDERAL QUESTION OF THE APPEAL

IN ANOTHER CASE, WHICH INVOLVED A DIFFER-

ENT STATUTE AND IN WHICH THE ISSUES IN THIS

CASE WERE NOT PROPERLY PRESENTED TO THE

SUPREME COURT, FORECLOSED THE RELIEF

SOUGHT BY APPELLANTS IN THIS CASE.

In Hicks v. Miranda, supra, this Court held that its dis-

missal of an appeal from the decision of the highest court

of a state for want of a substantial federal question is a

binding determination on the merits of issues that were

properly presented in the appeal to this Court. Hicks v.

Miranda, supra, 422 U.S. 322, at 345. Appellants re-

spectfully submit that the Court of Appeals misinter-

preted and misapplied Hicks in this case when it held

that this Court’s dismissal, for want of a substantial fed-

eral question, of the appeal in Kisley v. City of Falls

Church, 409 U.S. 907 (1972) precluded determination of

the substantial federal questions which the Court of Ap-

peals acknowledged to exist in this case. (See Appendix

B, at a, Mr. Justice Clark, concurring.)

Hicks requires that once a court observes that it may

be precluded from passing on issues before it because of

a Supreme Court dismissal of an appeal in another case,

that court must conduct an inquiry into the issues prop-

erly presented to the Supreme Court in the appeal in that

case. As this Court pointed out in Hicks:

Thus, had the . . . Court considered itself bound

by summary dismissals of appeals by this Court,

its initial task would have been to ascertain what

issues had been properly presented in [the appeal]

and declared by this Court to be without sub-

stance. Ascertaining the reach and content of

summary actions may itself present issues of real

substance, and in circumstances where the con-

stitutionality of a state statute is at stake, that

undertaking itself may be one for a three-judge

court.

Hicks v. Miranda, supra, 422 U.S. 322, at 345, n. 14 (em-

phasis supplied).

Appeilants respectfully submit that the Court of Ap-

peals inquiry into the question of the identity vel non of

the issues in this case and in Kisley, supra, was insuffi-

ciently detailed and resulted, therefore, in a mistaken con-

clusion by the Court. The Court of Appeals states in its

opinion that

We think the issue presented to the Supreme

Court in the appeal of Kisley and declared by

it to be without substance included the question

sought to be raised here: whether the ordinances

violate the Fourteenth Amendment’s Equal Pro-

tection Clause.

(Appendix B, 29a). This statement reflects the cursory

nature of the inquiry by the Court of Appeals which was

conducted without benefit of briefing or argument by the

parties, which is clearly in conflict with the requirements

of Hicks.

An adequate consideration of the issues properly pre-

sented and considered in the appeal in Kisley to the Su-

preme Court requires that the parties be given an oppor-

tunity to examine the record in Kisley and in the present

case and to submit briefs and arguments as to the scope

of the issues raised in each case. This opportunity was

not afforded to the parties herein, Hicks having been de-

cided some six months after this case was argued. Indeed,

the unexpected holding in Hicks, cf. (Appendix B, at 30a)

(Mr. Justice Clark, concurring), and the unique, inquiry

required by Hicks are all considerations which make brief-

ing and argument by the parties particularly appropriate

and helpful to the Court in this case.

Had such an opportunity been afforded, appellants would

have demonstrated that the issues and arguments raised in

the Virginia Supreme Court in Kisley were in fact quite

limited and that a number of the issues raised in this case

were not raised in the Virginia Supreme Court in Kis/ey,

and not, therefore, properly presented to this Court in the

Kisley appeal. In determining whether a substantial federal

question exists, this Court will not consider issues which

were not properly raised in the state court proceedings.

Whitney v. California, 274 U.S. 357 (1926); Dewey v. Des

Moines, 173 U.S. 193 (1899); Wilson v. Cook, 327 U.S.

474 (1945); Adler v. Board of Ed. of the City of New

York, 342 U.S. 485 (1951); State Farm Mutual Ins. Co.

v. Duel, 324 U.S. 154 (1944); Safeway Stores v. Okla-

homa Grocers, 360 U.S. 334 (1959); Cardinale v. Louisi-

ana, 394 U.S. 437 (1969). Thus issues raised de novo in

‘ the jurisdictional statement can be accorded no preceden-

tial value for the purpose of the hearing conducted pur-

suant to Hicks.

An examination of the cursory brief filed before the

Virginia Supreme Court in Kisley shows the plaintiffs in

that case relied upon three grounds: (1) that the ordi-

nances discriminated amongst classes of businesses since

it did not apply to barber shops and beauty parlors; (2)

that it deprived plaintiffs of property without due process

of laws; and (3) that it was in conflict with relevant Vir-

ginia statutes. !

! Counsel for Petitioners has examined the briefs submitted to

the Virginia Supreme Court in Kisley v. Falls Church, supra, and

bases the summary in the accompanying text on that examination.

The briefs filed in the Virginia Supreme Court are not part of the

record in this case because Petitioners have not yet been afforded

an opportunity to make the requisite inquiry mandated by Hicks v.

Miranda, supra, and this, of course, is precisely the gravamen of this

netition.

It is also important to note that an examination of the briefs

alone is insufficient to determine which issues were properly before

the Virginia Supreme Court since that Court will not consider issues

which are not argued as well as assigned as error and briefed. Ad-

ams v. Allen, 121 S.E.2d 364, 202 Va. 941 (1961), National Mari-

time Union v. Norfolk, 119 S.E.2d 307, 202 Va. 672 (1961).

_ The specific issues presented by petitioners in this case are

are distinguishable from the grounds presented by the par-

ties in Kisley. Appellants here primarily challenged the

ordinances on the grounds that they created an overly

broad classification? which resuited in actual discriminatory

employment practices based solely upon the ex of the em-

ployee; this contention, and the analysis in support of it,

were not raised in the Virginia Supreme Court in Kisley

and were therefore not properly presented in the Kisley

appeal to this Court. Appellants also argued, by analogy

to Loving v. Virginia, 308 U.S. | (1966), Harper v. Vir-

ginia State Board of Education, 383 U.S. 663 (1965), and

especially, McLaughlin v. Florida, 379 U.S. 184 (1966),

that the equal protection guarantee is not met “with a

2 The preamble to the Hampton ordinance clearly indicates that

the purpose of the ordinance was to prohibit prostitution. The

preamble reads in part as follows:

WHEREAS, the Council of the City of Hampton, Virginia

is authorized . . . to 2xercise all powers which in the

opinion of the Council are necessary or desirable to pro-

mote the general welfare of the City and the safety,

health, peace, good order, comfort, convenience, and

morals of its inhabitants; and

WHEREAS, upon report of the Division of Police, admin-

istrative officers, and inhabitants of the City, such places

called “massage parlors,” and similar establishments as

hereinafter defined are being used, or may be used be-

-use of their nature, as houses of prostitution, or palces

where disorderly, lewd, lascivious and unlawful conduct

or exhibitions occur; .. .

Testimony presented on behalf of the city of Newport News shows

a similar intent. (See Appendix in Hogge v. Johnson, United

States Court of Appeals for the Fourth Circuit, No. 74-1656, at

173.)

showing of equal application among the members of the

class defined by the legislation.” McLaughlin v. State of

Florida, supra, 379 U.S. at 191. Thus, Petitioners have

contended that the insidious doctrine of separate but equal

is as unconstitutional as a basis for sex discrimination as it

is as a basis for discrimination among races. This argu-

ment similarly was not raised in Kisley and, in fact, the

Virginia Supreme Court decision expressly rests on just

such discredited reasoning. Kisley v. City of City of Falls

Church, supra, 187 S.E. 2d at 171.

Finally, Petitioners introduced evidence showing that the

actual effect of the ordinances, as applied? was to neces-

sitate hiring and firing practices which discriminated against

women Seeking jobs solely on the basis of their sex. A re-

view of the Kisley litigation shows that the arguments in

that case rested solely on the facial validity of the Falls

Church Ordinance. Indeed, Respondents have previously

conceded that Kisley involved only a facial challenge, and

that a challenge, as in this case, to the ordinances as ap-

plied would raise issues which were net within the scope

of issues presented in the Kisley appeal. (Respondents’

Petition for Certiorari in Blair v. Joseph, supra, at p. 25

of the Petition.

3 Indeed, appeilees have previously conceded that Kisley involved

only a facial challenge and that a challenge, as in this case, to the or-

dinance as applied wouid raise issues which were not within the scope

of the issues in the Kisley appeal. (Appellee’s Petition for Certiorari

in Blair v. Joseph, supra, at page 25 of the Petition).

Il. THE COURT BELOW ERRONEOUSLY APPLIED

HICKS V. MIRANDA, SUPRA, IN THIS CASE BE-

CAUSE SIGNIFICANT DOCTRINAL DEVELOP-

MENTS HAVE OCCURRED SINCE THIS COURT'S

DISMISSAL OF Ti'E APPEAL IN KISLEY V.

FALLS CHURCH, SUPRA, FOR WANT OF A

SUBSTANTIAL FEDERAL QUESTION.

This Court made clear in Hicks v. Miranda, supra, that

where there are “significant doctrinal developments,” a sum-

mary disposition by this Court in an earlier case will not

preclude further consideration of the issue in question.

Hicks v. Miranda, supra, 95 §. Ct. at 2289, quoting Port

Authority Bondholders Protective Committee v. Port of

New York Authority, 387 F.2d 259, 262, n.3 (2nd Cir.

1967). In the area of constitutional protection against

sex discrimination, such doctrinal developments, not pre-

sented to or considered by the Virginia Supreme Court

in Kisley, supra, have clearly occurred in recent years,

beginning with Reed v. Reed, 401 U.S. 71 (1971). Reed

held that discrimination on the basis of sex which lacked

either a rational basis or a fair and substantial relation-

ship to the objective sought to be achieved was prohibited

by the Equal Protection Clause of the Fourteenth Amend-

ment. The Virginia Supreme Court’s decision in Kisley,

supra, does not advert to Reed and does not utilize the

requisite Reed analysis or standards.* That court also, of

course, did not consider this Court’s decision in Fronterio

vy. Richardson, 411 U.S. 677 (1973), which further en-

larges arid clarifies the scope of the constitutional protec-

4 Reed was decided on November 22, 1971, after submission of

the briefs in Kisley to the Virginia Supreme Court. See Petition for

Writ of Error, dated August 5, 1971, in Kisley Falls Church, 212 Va.

693, 187 S.E.2d 168 (1972).

against sex discrimination. These developments raise sub-

stantial doubt about the continued validity of the Virginia

Supreme Court’s decision in Kisleyv, supra, and about the

present significance of this Court’s dismissal of the appeal

in that case.*

Finally, the Kis/ey decision relies primarily on Ex Parte

Maki, 56 Cal. App. 2d 635, 133 P.2d 64 (1943), a case

which has since been overruled by the California Supreme

Court in Lancaster v. Municipal Court, 6 Cal. 2d 809, 494

P.2d 481 (1972). Although Lancaster was decided on state

law grounds, the decision by the California Supreme Court

in Sailer Inn v. Kirby, 95 Cal. Rptr. 329, 485 P.2d 529

(1971), a case involving sex discrimination in hiring prac-

tices for bartenders, shows that an ordinance such as the

one in Maki would be vulnerable to constitutional attack in

the California courts even in the absence of the state grounds

present in Lancaster.®

5 A number of other courts have struck down ordinances similar

to those at issue in this case. J.S.K. Enterprises v. Lacey, 6 Wash.

App. 43, 492 P.2d 600 (1971); Gianiolc v. Members of the City

Council of Nashville, 376 F. Supp 719 (E.D. N.D. 1974); Corey v. Dal-

las, 352 F.Supp. 977 (N.D.Tex. 1972), rev'd on other grounds, 492

F.2d 496 (Sth Cir. 1974).

6 Although the Court of Appeals based its decision solely upon

this Court’s action in Kisley, supra, the Court also cites Smith v.

Xeator, 206 S.E. 2d 203, 285 N.C. 530, appeal dismissed, 419 U.S.

1043 (1974) in a footnote. The Smith opinion stressed that the

city in that case did not defend its ordinance on the basis of an adminis-

trative convenience. Testimony on behalf of the respondents in this case,

however, clearly showed that administrative convenience was a primary

purpose for the enactment of these ordinances. (See Appendix in

Hogge v. Johnson, United States Court of Appeals for the Fourth

Circuit, No. 74-1656, 74-1657, at 128-130, 148, 173.) Cf. Reed v.

Reed, supra.

Ill. WHERE THIS COURT TAKES SUMMARY ACTION

ON AN APPEAL WITHIN ITS OBLIGATORY AND

WHERE THE COURT HAS NOT PREVIOUSLY

FULLY ADDRESSED THE ISSUES PRESENTED

THE DECISION OF THE STATE COURT SHOULD

NOT BE GIVEN THE SAME STARE DECISIS AS

THE OPINIONS OF THIS COURT.

Although summary actions by this Court in appeals

within its obligatory jurisdiction are decisions on the mer-

its, those lower court decisions which are summarily up-

held should not be given the same stare decisis effect as

the opinions of this Court. Without illumination by this

Court it is difficult and sometimes impossible to determine if

this Court is affirming both the analysis and the result

achieved or solely the result achieved particularly, where

the result is the same result that the Court would reach,

but the decision might rest upon other grounds than those

relied upon by the court below.

An example of this would be a case which involved a

plaintiff seeking a declaratory judgment who lacked the

requisite standing. If the state court entered judgment

denying relief on other grounds and this Court summarily

affirmed or dismissed for want of a substantial federal

question it would be impossible at this point in time to

determine whether the lower court’s decision was affirmed

because the plaintiff lacked standing or because this Court

was approving the state court’s decision on the merits. Si-

milarly if the state court decision advanced several grounds

for the basis of its decision it would be impossible to de-

termine whether this Court’s decision was affirming each

independent basis for the decision or whether the Court

had perhaps rejected all but one oi the grounds and was

basing its affirmance solely upon that one ground. More-

over, if summarily affirmed state court decisions are con-

sidered to have precedential value equivalent to the opin-

ions of this Court, but only to the extent that issues are

properly presented before this Court, parties will be re-

quired to travel around the country to examine records

in other jurisdictions and will at times have to seek out

unreported decisions to determine what the law of the

land is according to a decision which both the state and

national reporters have chosen not to publish.’ These ex-

amples are illustrative of the untoward and unworkable

effects that giving such broad precedential value to this

type of decision would have upon our system of jurispru-

dence.

IV. THE COURT BELOW ERRED IN ITS HOLDING

THAT PETITIONERS SHOULD NOT BE AFFORD-

ED DECLARATORY RELIEF ON THEIR CLAIMS

ON THE BASIS OF TITLE VII OF THE CIVIL

RIGHT ACT OF 1964, 42 U.S.C. 2000e WHEN

PETITIONERS HAD ESTABLISHED STANDING

AND WHERE THEY EMPLOYED FIFTEEN (15)

OR MORE EMPLOYEES AS REQUIRED BY THE

ACT BUT THESE EMPLOYEES WERE LOCATED

IN ADJOINING TOWNS INSTEAD OF THE SAME

PLACE OF BUSINESS.

The District Court held that Petitioners did not meet

the jurisdictional requirements of the Civil Rights Act of

1964 42 U.S.C. 2000e (Appendix A, 8a) and found that

it was not required to reach the merits of their conten-

tion that the ordinances in question were in conflict with

the Act. While the District Court did not state the basis

for its determination that Petitioners did not meet the

7 See, Rubenstein v. Cherry Hill (NJ. 1974) appeal dismissed for

want of a substantial federal question question, 417 U.S. 963 (1974).

jurisdictional requirements, the record reflects its concern

that Petitioner massage parlor owners, while employing

more than 15 employees at their several places of busi-

ness, did not employ 15 or more employees at any one

place of business. Petitioner Bo-Jac, Ltd., operated busi-

nesses in Hampton and Norfolk, Virginia, two adjoining

cities, while Earle Phillips operated businesses in Hamp-

ton and Newport News, also two adjoining towns.

The Court of Appeals sustained this ruling, holding that

it was “not clearly erroneous” (Appendix B, 29a). While

the clearly erroneous standard would be the appropriate

standard if the District Court’s determination were a fac-

tual determination, a determination that the Act required

an employer to employ 15 or more employees at one lo-

cation is clearly a conclusion of law rather than a finding

of fact. The Court of Appeals, therefore, applied an in-

appropriate standard when it used the clearly erroneous

test.

Petitioners contend that where the nature of their ac-

tion was a declaratory judgment and where they had es-

tablished the requisite standing Hogge v. Hampton, 482

F.2d 403 (4th Cir. 1973) that the District Court was re-

quired to reach the merits of the issue they raised as to

whether the Act and the local ordinances were in conflict,

even if they did not meet the jurisdictional requirements.

The purpose of the Declaratory Judgment Act, 28 U.S.C.

2201 was to provide an opportunity to determine pros-

pective liability in situations like the one presented in this

case. Senate Report No. 1005 73d. Cong., 2d. Sess.,

(1934).

The need for a determination of the issues is illustrated

by the Equal Employment Opportunity Commission guide-

lines which provide that state laws in conflict with the Act

will not serve as a defense to an otherwise unlawful em-

ployment practice 29 CFR 1604.2 (a)(2)(1).2 At the pre-

sent time a number of state statutes have been struck

down on the grounds that they were in conflict with the

Act Rosenfield v. Southern Pacific Company, 444 F.2d

385 (9th Cir. 1971), Diaz v. Pan American Airways Inc.,

422 F.2d 385 (Sth Cir. 1971), cert. denied, 404 U.S. 950

(1971), Caterpillar Tractor Co. v. Arabic, 317 F. Supp.

1304 (S.D. fll. 1970). Thus, even if none of the Peti-

tioners had met the jurisdictional requirements? of the

Act they were still entitled to maintain a declaratory ac-

tion and the District Court erred in not making a deter-

mination on the merits.

8 59 C.F.R. 1604.2(aX21) provides:

Many states have enacted laws or promulgated adminis-

trative regulations with respect to the employment of

females . . . The Commission has found that where such

laws and regulations do not take into account the capa-

bilities, preferences and abilities of individual females, and,

therefore, discriminate on the basis of sex. The Commis-

sion has concluded that such laws and regulations conflict

with and are superseded by title VII of the Civil Rights

Act of 1964. Accordingly, such laws will not be con-

sidered a defense to an otherwise unlawful employment

practice or as a basis for the application of the bona fide

occupational qualification exception.

9 There is also some question as to whether the arbitrary num-

ber of employees required by the Act is in conflict with the Fifth

Amendments requirement of equal protection of the law.

V. THIS COURT’S PREVIOUS DENIAL IN THIS CASE

OF RESPONDENTS’ PETITION FOR A WRIT OF

CERTIORARI FROM THE DECISION OF THE

COURT BELOW THAT SUBSTANTIAL FEDERAL

QUESTIONS WERE PRESENTED IN THIS CASE IS

RES JUDICATA AS TO THAT ISSUE WHERE NO

CHANGE HAS OCCURRED IN THE RELATION.

SHIP OF THE PARTIES OR THEIR CIRCUM-

STANCES.

While it is clear that the denial of a petition for writ

of certiorari by this Court has no precedential value and

that therefore such decision is not given stare decisis ef-

fect, Petitioners respectfully submit that the Court below

failed to accord appropriate res judicata effect in this case

of this Court’s denial, 416 U.S. 955 (1974), of Respond-

ents’ petition for a writ of certiorari asserting that Kisley

v. City of Falls Church, 212 Va. 693, 187 S.E.2d 168 (1972),

appeal dismissed for want of a substantial federal question,

409 U.S. 907 (1972), indicated the lack of a substantial

federal question in this case.

The correct interpretation of the res judicata effect of

the denial of certiorari (in other than habeas corpus cases,

where special ocnsiderations pertain), has been explained

by Mr. Justice Jackson as follows:

I agree that, as stare decisis, denial of certiorari

should be given no significance whatever. It

creates no precedent and approves no statement

of principle entitled to weight in any other case.

But for the case in which certiorari is denied, its

minimum meaning is that this Court allows the

judgment below to stand with whatever conse-

quences it may have upon the litigants involved

under the doctrine of res judicata... .

Brown vy. Allen, 344 U.S. 443, 543 (1953) (Mr. Justice

Jackson, concurring).

Thus, the Supreme Court’s previous, post-Kisley denial

of certiorari is res judicata in this case as to the issues

then before it. That disposition is a definitive and final

determination by the Supreme Court, in accordance with

the first decision of the Court below, that appellants have

presented substantial federal questions.

CONCLUSION

This case pres:nts important questions about the appli-

cation of this Court’s recent decision in Hicks v. Miranda,

422 U.S. 322 (1975), particularly as to the type of in-

q uiry which is required by that case where this Court

has summarily acted on a case within its obligatory juris-

diction presenting similar issues and as to the stare decisis

effect which is to be given to such cases. In addition it

raises important questions about the res judicata effect to

be accorded the denial of a petition for a writ of cer-

tiorari and declaratory relief concerning the application of

42 U.S.C. 2000(e). Petitioners therefore, respectfully sub-

mit that a writ of certiorari should issue.

REBECCA APRIL FITCH

19 Logan Circle, N.W.

Washington, D.C.

KENNETH C. HOGGE

Citizens & Marine Bank Bldg.

Hampton, Va.

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Newport News Division

PATRICIA HOGGE,

EARLE PHILIPS,

T/A Paradise Massage Parlor,

BO-JAC, LTD.,

T/A Miss Masseuse,

Plaintiffs, CIVIL ACTION

v. NO. 42-72-NN

C.E. JOHNSON, City Manager, and

PATRICK G. MINETTE, Chief of Police,

of the City of Hampton, Virginia, each

in their official capacity,

Defendants.

ee ee ee ee ee a a

SCARLETT ANNE HILLIARD,

EARLE PHILLIPS,

T/A French Massage Parlor,

Plaintiffs, CIVIL ACTION

v. NO. 48-72-NN

WILLIAM E. LAWSON, City Manager, and

HOWARD B. BLACKMON, Chief of Police,

each in their official capacity,

Defendants.

ll i i i i i i i

MEMORANDUM ORDER

This Court is again called upon to deal with the Mas-

sage Parlor Ordinances adopted by the City of Hampton,

Virginia, March 22, 1972, and the City of Newport News,

Virginia, March 27, 1972. Plaintiffs seek injunctions against

their enforcement, declaratory judgment and other relief.

These cases were previously before the Court. Relief

was denied and the cases were dismissed. Upon appeal,

the United States Court of Appeals for the Fourth Circuit

reversed and remanded them, directing this Court take

jurisdiction and proceed to trial. Since the history of

each case is somewhat different, it will be related sepa-

rately.

On April 3, 1972, Patricia Hogge filed her complaint

herein praying a temporary injunction be issued against

the individual members of the City Council of Hampton,

enjoining the enforcement of the “‘Massage Parlors” Ordi-

nance, asserting it was unconstitutional because it violated

the (a) Equal Protection Clause of the Fourteenth Amend-

ment, (b) Due Process Clause, and (c) restricted the right

to engage in a lawful business. She asserted she had no

adequate remedy at law.

At the hearing on application for the temporary injunc-

tion it was established a prior action of Bo-Jac, Ltd., T/A

Miss Masseuse had been filed in the State Court attacking

the Ordinance.! The State Court denied a temporary in-

junction on March 28, 1972. Application was then made

to one of the Justices of the Supreme Court of Virginia,

which was denied March 29, 1972. In the face of these

facts this Court declined to proceed further and stayed its

hand.

While Patricia Hogge was not a named part in the State suit, it

was established she was one of the principals in Bo-Jac.

On May 2, 1972, Patricia Hogge was granted leave to

file amended pleadings in the nature of an amended pe-

tition for injunction, and for declaratory judgment, and

to add other parties. Earle Phillips, T/A Paradise Mas-

sage Parlor, and Bo-Jac, Ltd., T/A Miss Masseuse, were

added as plaintiffs. The amended complaint made about

the same allegations as were contained in the original com-

plaint, and prayed that (a) the Ordinance be declared un-

constitutional and void, and (b) the Court issue a tempo-

rary and permanent injunction against its enforcement.

On April 27, 1972, an amended pleading was filed in

the State Court action seeking declaratory judgment.

By order of July 25, 1972, this Court dismissed the suit

for declaratory judgment and injunction on the doctrine

of Younger v. Harris, 401 U.S. 37 (1971); Samuels v. Mac-

kell, 401 U.S. 66 (1971); and Boyle v. Landry, 401 U.S.

77 (1971).

On April 26, 1972, Edwin Emerson, T/A Peninsula Mas-

sage Parlor and T/A Continental Massage Parlor, Earle Phil-

lips, T/A French Massage Parlor, and Scarlett Anne Hilliard

filed a complaint against the Members of the City Council

of the City of Newport News, Virginia, seeking a declara-

tory judgment that the Newport News “Massage Parlors”

Ordinance was unconstitutional and in violation of Title 7

of the 1964 Civil Rights Act. 42 U.S.C. 2000e. After a

motion to dismiss was filed, plaintiffs were on May 5, 1972,

granted leave to file an amended complaint. Each complaint

prayed an injunction to restrain enforcement of the Ordi-

nance and a declaration it was unconstitutional.

Following hearing, the motion to dismiss was granted

on July 24, 1972, for the reasons stated in the opinion

in the Hampton case.

An appeal was taken in each case with the result that

each case was remanded for trial. 482 F.2d 575 (4th Cir.

1973), rehearing denied 488 F.2d 403.

Upon remand, counsel was on October 15, 1973, granted

leave to file an amended complaint in the Newport News

case, adding the City Manager and Chief of Police as de-

fendants. Defendants answered November 21, 1973. On

November 23rd, counsel moved to file an amended com-

plaint in the Hampton case adding the City Manager and

Chief of Police. Defendants that day appeared and an-

swered.

In each of the cases, plaintiff dismissed the Members of

the City Council, and Edwin Emerson was dismissed as a

party plaintiff in the Newport News case.

Plaintiffs thereupon, on November 23rd, moved for a

temporary injunction, but offered no evidence to support

the application. By order of December 3, 1973, the ap-

plication was denied.

At the hearing on November 23, 1973, a certified copy

of the order of the Circuit Court of the City of Hampton

was presented showing that the action instituted in that

Court by Bo-Jac was not dismissed until August 24, 1973.

Following a denial of the temporary injunction on De-

cember 3, 1973, the Court scheduled these cases for hear-

ing. Each side presented evidence and filed briefs in sup-

port of their contentions.

Abstractly stated, the evidence establishes —

1. Plaintiff, Scarlett Anne Hilliard, is not employed in

French Massage Parlor.

2. That the Clientele of the parlors is almost 100 per

cent men, and that the employees are all masseuses.

3. That the going price for a massage is $10.00 to $15.00,

while the going price in the regularly licensed spas, health

clubs and regularly licensed massage parlors is from $4.00 to

$6.00, and that in such places men massage men and women

massage the women.

4. That the Ordinance has created no problem for

legitimately operated businesses.

5. That the plaintiff operated massage parlors and in

their operation massaged the entire body, including the

genitals.

6. Without the Or'inance, the policing of the places

against prostitution is next to impossible and control of

the places is difficult. Prior to the Ordinance, there were

numerous difficulties with the places, and none since.

7. Under-cover police reported that the masseuses at the

parlors informed them they were instructed to massage the

male genitals, and this was the only part of the male body

massaged. In a raid, arrests were made for fornication and

operating a bawdy house. Offers to give further services

were made for additional money.

Some of the plaintiffs had criminal prosecutions pend-

ing in the State Courts at the time these actions were filed.

There were also other violations of the ordinance pending.

The following demonstrate the arrests, etc.

Hampton

1. Patricia Hogge, arrested July 2, 1972, tried August

31, 1972, in Juvenile Court for permitting a 17 year old

girl to work in the parlor. Convicted.

2. Katherine J. Gornik, arrested July 1, 1972, charge

of massaging the opposite sex, tried August 24, 1972,

found not innocent. Case dismissed August 30, 1973.

3. Jackie C. Easterling, arrested July 1, 1972, tried Au-

gust 31, 1972, convicted of same offense as No. | above.

4. Jackie C. Esterling arrested June 30, 1972, for oper-

ating massage parlor, etc., tried August 31, 1972, and con-

victed.

5. Gloria Arango, arrested June 30, 1972, tried August

31, 1972, convicted.

Newport News

1. Edwin Wilbur Emerson, t/a Peninsula Massage Parior.

Arrested March 1!, 1972, tried in Municipal Court April

20, 1972, found guilty. Appealed to Circuit Court and

tried November 11, 1972, convicted of operating a bawdy

house.

2. Eleven other arrests were made on March 11, 1972,

at Peninsula Massage on charges of frequenting a bawdy

house, tried in Municipal Court on April 20, 1972, and

May 30, 1972. In appeals taken, three affirmed Novem-

ber 1, 1972. In addition there were four convictions of

fornication and eight persons dismissed of charges.

3. At Continental Massage Parlor on March 11, 1972,

there were 7 arrests for frequenting a bawdy house, | ar-

rest for operating such a house, and fornication. These

cases were tried in Municipal Court, some on March 23,

1972, some April 20, 1972, and February 13, 1973. All

except one resulted in a conviction. One person charged

with operating a bawdy house and fornication appealed,

and on June 11, 1973, was dismissed.

4. Theodore Edward Phillips, operator of French Mas-

sage Parlor, was arrested June 30, 1972, tried in Munici-

pal Court July 20, 1972, and found guilty of violating the

Massage Parlor Ordinance. Upon his appeal, he was con-

victed of the offense on December 4, 1972. Phillips was

also arrested on April 29, 1972, of violating the Massage

Parlor Ordinance, tried May 11, 1972, and convicted.

From the entire record in this case it is clear that at

the time of institution of these actions, and at the time

of this Court’s orders of dismissal, actions were pending

in the State Courts. In Hampton, a civil action for de-

claratory judgment and an injunction to enjoin enforce-

ment of the Ordinance, and in Newport News, criminal

prosecutions.

Under the doctrine of Younger v. Harris, supra; Samuels

v. Mackell, supra; Boyle v. Landry, supra; Byrne v. Kara-

lexis, 401 U.S. 216 (1971); reite sted in Lemon v. Kurtz-

man, 411 U.S. 192 (1973), and set forth in Lynch v. Snepp,

472 F.2d 769 (4th Cir. 1973), this Court was required to

dismiss the cases. Since remand, the civil action in Hamp-

ton has been dismissed, and the criminal prosecutions have

terminated in the Newport News cases. While plaintiffs

sought declaratory judgment, inasmuch as the Court has

power to grant other relief under declaratory judgment,

‘such as injunction, such would have been a violation under

the Younger cases doctrine. This is made clear in Samuels

v. Mackeli, supra, at page 73. Too the plaintiff had ade-

quate remedies at law. The Court pointed out in O'Shea

y. Littleton, __U.S.____, January 14, 1974, that to ob-

tain an injunction against State Court action, the applicant

must show an inadequate remedy at law.

On March 20, 1974, the Supreme Court held in Steffel

v. Thompson that under 42 U.S.C. 1983, the absence of

pending state prosecution or failure to show irreparable

injury or bad faith harrassment, did not preclude a plain-

tiff threatened with prosection under a disputed state crim-

inal statute from obtaining declaratory relief. Hence, un-

der 42 U.S.C. § 1983, a plaintiff who is threatened with

prosecution under a questionable statute, may maintain a

declaratory judgment action. However, plaintiffs do not

ground jurisdiction under § 1983.

Ill

Defendants say that jurisdiction cannot be laid under

42 U.S.C. § 2000e, i.e., Equal Employment Opportuni-

ties, because sub-paragraph (b) of that Act says the term

“employer” as used in the Act is defined as “a person en-

gaged in an industry affecting commerce who has fifteen

or more employees for each working day in each of twen-

ty or more calendar weeks in the current or preceding

calendar year, ....” The evidence does not establish

any of plaintiffs meet this test. Hassell v. Harmon Foods,

Inc., 454 F.2d 199 (6th Cir. 1972); Coon v. Tingle, 277

F. Supp. 304 (N.D. Ga. 1967).

Since it appears there is no jurisdiction under 42 U.S.C.

§ 2000e, defendants say the decision of the Supreme Court

in England v. Medical Examiners, 375 U.S. 411 (1964), pro-

hibit these parties from maintaining these actions. There,

like here, the validity of a statute was challenged in the

State Court, where plaintiffs were unsuccessful. They then

instituted action in the District Court. The Supreme Court

said at pages 418-19:

But we see no reason why a party, after unre-

servedly litigating his federal claims in the state

courts although not required to do so, should be

allowed to ignore the adverse state decision and

start all over again in the District Court. Such a

rule would not only countenance an unnecessary

increase in the length and cost of the litigation;

it would also be a potential source of friction be-

tween the state and federal judiciaries. We im-

plicitly rejected such a rule in Button, when we

stated that a party elects to forgo his right to re-

turn to the District Court by a decision “to seek

a complete and final adjudication of his rights in

the state courts.”” We now explicitly hold that

if a party freely and without reservation submits

his federal claims for decision by the state courts,

litigates them there, and has them decided there,

then — whether or not he seeks direct review of

the state decision in this Court — he has elected

to forgo his right to return to the District Court.

Too, defendants say plaintiffs are not entitled to relief

in that they do not come into Court with clean hands.

That is, each of them are guilty of unlawful conduct in

their attempts to operate a massage parlor.

In Lemon v. Kurtzman, 411 U.S. 192, 201 (1973), the

Court said:

In equity, as nowhere else, courts eschew rigid

absolutes and look to the practical realities and

necessities inescapably involved in reconciling

competing interests, notwithstanding that those

interests have constitutional roots.

10a lla

Declaratory judgment is “essentially an equitable cause 183 Va. 722, 33 S.E.2d 222; Helsley v. Fultz, 76 Va. 671.

of action,” Samuels v. Mackell, supra [401 U.S. 70], and In Precision Company v. Automotive Company, supra, at

as the Court pointed out in Samuels, the legislative history page 814, it was said:

of the Declaratory Judgment Act “showed that Congress

had explicitly contemplated that the courts would decide

to grant or withhold declaratory relief on the basis of tra-

ditional equitable principles.” [401 U.S. 70]. It further

- pointed out that in Great Lakes Co. v. Huffman, 319 U.S.

293, 300 (1943), it had held “that in an action for a de-

claratory judgment, ‘the district court was as free as in any

other suit in equity to grant or withhold the relief prayed.

upon equitable grounds.’ ”

Applying these principles it seems that one who attempts

to operate a bawdy house under the guise of massage par-

lor, is not in court with clean hands. There is no denial in

the record that each of the undercover agents who visited

plaintiffs’ parlors, were solicited for unlawful acts. Nor is

it denied that all of the evidence in this case concerning the

activities within the massage parlors establishes them to be

unlawful, irrespective of the Ordinance. This is not simply a

case of whether a female may administer a massage to a male.

All of the evidence establishes that as to plaintiffs, the action

went beyond this limit.

The purpose of the clean hands doctrine is to secure jus-

tice, not to permit conduct which is unlawful or contrary

to public policy. Equity will not and should not afford

relief to one who has violated this maxim, nor should equi-

ty permit one to justify his unlawful conduct by granting

him relief. It assumes even wider range where the public

is involved. Precision Company v. Automotive Company,

324 U.S. 806, 814 (1945): Bolling v. Bowden, 118 F.2d

59, 62 (4th Cir. 1941): Monsanto Co. v. Rohm & Haas

Co., 456 F.2d 592, 598 (3d Cir. 1972); Harrell v. Allen.

The guiding doctrine in this case is the equita-

ble maxim that “he who comes into equity must

come with clean hands.”’ This maxim is far more

than a mere banality. It is a self-imposed ordi-

nance that closes the doors of a court of equity

‘O one tainted with inequitableness or bad faith

relative to the matter in which he seeks relief,

however improper may have been the behavior

of the defendant. That doctrine is rooted in the

historical concept of court of equity as a vehicle

for affirmatively enforcing the requirements of

conscience and good faith. This presupposes a

refusal on its part to be “the abettor of iniqui-

ty.” Bein v. Heath, 6 How. 228, 247. Thus

while “equity does not demand that its suitors

shall have led blameless lives,” Loughran v. Lough-

ran, 292 U.S. 216, 229, as to other matters, it

does require that they shall have acted fairly and

without fraud or deceit as to the controversy in

issue. Keystone Driller Co. v. General Excavator

Co., 290 U.S. 240, 245; Johnson v. Yellow Cab

Co., 321 U.S. 383, 387; 2 Pomeroy, Equity Juris-

prudence (Sth Ed.) 8& 379-399.

This maxim necessarily gives wide range to the

equity court’s use of discretion in refusing to aid

the unclean litigant. It is “not bound by formula

or restrained by any limitation that tends to tram-

mel the free and just exercise of discretion.” Key-

stone Driller Co. v. General Excavator Co., supra,

245, 246. Accordingly one’s misconduct need not

12a

necessarily have been of such a nature as to be

punishable as a crime or as to justify legal pro-

ceedings of any character. Any willful act con-

cerning the cause of action which rightfully can

be said to transgress equitable standards of con-

duct is sufficient cause for the invocation of the

maxim by the chancellor.

Moreover, where a suit in equity concerns the

public interest as well as the private interests of

the litigants this doctrine assumes even wider

and more significant proportions. For if an

equity court properly uses the maxim to with-

hold its assistance in such a case it not only pre-

vents a wrongdoer from enjoying the fruits of his

transgression but averts an injury to the public.

The determination of when the maxim should be

applied to bar this type of suit thus becomes of

vital significance. See Morton Salt Co. v. Sup-

piger Co., 314 U.S. 488, 492-494.

The last paragraph in the above quotation was cited

with approval in S & E Contractors, Inc. v. United States,

406 U.S. 1, 15 (1972). Like there, here the public in-

terest is involved. The Court made it clear that where

the public interest is involved the principle has greater ap-

plication. In Morton Salt Co. v. Suppiger Co., 314 US.

488, 492 (1942), the Court said:

It is a principle of general application that

courts, and especially courts of equity, may ap-

propriately withhold their aid where the plaintiff

is using the right asserted contrary to the public

interest. Virginian Ry. Co. v. Federation, 300

U.S. 515, 552: Central Kentucky Co. v. Railroad

13a

Commission, 290 U.S. 264, 270-73; Harrisonville vy.

Dickey Clay Co., 289 U.S. 334, 337-38; Beasley v.

Texas & Pacific Ry. Co., 191 U.S. 492, 497: Secu-

rities & Exchange Comm'n vy. U.S. Realty Co., 310

U.S. 434, 455; United States v. Morgan, 307 U.S.

183, 194.

This seems to be what the Court had in mind when it said

one who was guilty of fraud may not challenge the con-

stitutionality of a statute which required him to furnish

the information he misrepresented. United States v. Knapp,

302 U.S. 214, 217 (1937); Kay v. United States, 303 U.S.

1, 6 (1938); Acanfora v. Board of Education, __ F.2d

__ (4th Cir. 2/7/74).

Considering the above principles, this case could be de-

cided w:thout reaching the constitutional issue. This is

what the Supreme Court had in mind when it said it should

first be determined whether the case could be decided with-

out reaching t%e issue of constitutionality of the statute.

Johnson Administration v. Robinson, __ U.S. ___ (1974),

42 L.W. 4313; United States v. 37 Photos, 402 U.S. 363, 369

369 (1973).

Here, plaintiffs are not in court with clean hands; they

are not seeking to carry on a lawful business but an exploit-

ation of sex. The Ordinance does not prohibit plaintiffs

from operating a massage parlor. It merely requires the

parlor be operated in a lawful manner, and within the rules

of decency.

Much has been said and written in recent years of “‘equal-

ity,’ “sex discrimination,” “equal rights for women” and

> #66

so on. Do these terms mean that one sex shall be permit-

l4a

ted to do all things the other may be authorized to do?

Do the changes in attitude mean all laws relating to

sexual behavior are to be cast to the wind? Changing

times bring about changing behavior, but does that mean

each community must accept the conduct and behavior

of each individual as proper, or may the community de-

termine this by orderly process?

“Equality” is a broad term. Because the man appears

at the beach or poolside without covering his body above

the waist, is it lack of equality to prohibit a woman to

do so? May a public restaurant refuse to admit patrons

who are barefooted while admitting those in shorts? May

the City prescribe standards for those operating businesses

which affect the health and morals of its citizens? May it

prohibit obscene conduct, even to selected patrons? If it

may not prohibit the female sex from massaging the oppo-

site sex, may it prohibit such conduct for juveniles?

An ordinance like unto the two here in question was be-

fore the Supreme Court of Virginia in Kisley v. City of Falls

Church, 212 Va. 693, 187 S.E.2d 168 (1972). There, as

here, the only challenge was to the prohibition of massage

being administered by the opposite sex. There, as here, the

challenge was to the denial of due process, and equal pro-

tection of the law. The Court held there was no denial of

equal protection in that the ordinance applied alike to both

men and women. It held the enactment and enforcement

of the ordinance was a proper exercise of police power; it

constituted a barrier against immoral acts likely to result

from too intimate familiarty of the sexes, and that this

was a reasonable regulation imposed in the fair exercise of

police power; that the reasonable exercise of police power

in regulating occupations to maintain the moral welfare does

not arbitrarily deprive a person so engaged of his property;

15a

that nothing in the ordinance denied the equal protection

guaranteed by the Fourteenth Amendment.

An appeal to the Supreme Court of the United States

was sought. On October 16, 1972, the appeal was dis-

missed “for want of a substantial federal question.”’ 409

U.S. 907 (1972).

In the appeal of this case, the Court of Appeals held

that “‘at least some of the federal claims sought to be liti-

gated in the instant case were either not raised in the Vir-

ginia suit, or were not passed upon in any substantial way

by the Virginia Supreme Court.” 482 F.2d 580. Further,

the Court said it was repugnant to Title VII of the Civil

Rights Act of 1964. As pointed out above, neither plain-

tiff brings his case within the terms of that Act.

Rut if the Virginia Supreme Court has not passed on the

constitutional issues here raiseu, then it would seem that in

keeping with the doctrine of abstention, Askew v. Hargrave,

401 U.S. 476 (1971); Louisiana Power and Light Co. v.

City of Thibodaux, 360 U.S. 25 (1959): Railroad Commis-

sion v. Pullman Co., 312 U.~. 496 (1941); Lake Carriers’

Assn. v. MacMullan, 406 U.S. 498 (1972); Fralin and Wal-

dron, Inc. v. City of Martinsville, etc., F.2d __ (4th

Cir. 2/25/74), we should await a decision of that Court on

the issues.

However, the Court of Appeals directed this Court to

conduct further proceedings in accordance with the views

expressed in its opinion. In keeping with that direction,

each side has been granted a full opportunity to present

evidence and such argument as it desired.

Whether the Ordinance which regulates conduct of the

sexes is a rational one is the question at issue. Is it with-

ing the police powers of the City? In California v. LaRue,

16a

409 U.S. 109 (1972), the Court had for determination

whether certain sexual performances and the dispensation

of liquor by the drink ought to occur at the same prem-

ises. The Court held that a prohibition of sale of whiskey

by the drink where nude sex shows were presented was a

rational one.

Likewise, in Paris Adult Theatre I v. Slaton, 413 U.S.

49 (1973): Kaplan v. California, 413 U.S. 115 (1973);

Miller v. California, 413 U.S. 15 (1973); United States v.

Orito, 413 U.S. 139 (1973), the Court held that the rights

and interests “other than those of the advocates are in-

volved.” 413 U.S. 58. These cases make clear that there

is a “right of the Nation and of the States to maintain a

decent society.”” 413 U.S. 59.

In the Paris Adult Theatre case, the Court said:

From the beginning of civilized societies,

legislators and judges have acted on various

unprovable assumptions. Such assumptions

underlie much lawful state regulation of com-

mercial and business affairs. [413 U.S. 61].

* * * * *

The States, of course, may follow such a

“laissez faire’’ policy and drop all controls

on commercialized obscenity, if that is what

they prefer, just as they can ignore consumer

protection in the marketplace, but nothing in

the Constitution compeis the States to do so

with regard to matters falling within state

jurisdiction. See United Siates v. Reidel,

402 U.S., at 357: Memoirs v. Massachusetts,

383 U.S., at 462 (WHITE, J., dissenting).

“We do not sit as a super-legislature to

17a

determine the wisdom, need, and propriety of

laws that touch economic problems, business

affairs, or social conditions.” Griswold y.

Connecticut, 381 U.S. 479, 482 (1965). See

Ferguson v. Skrupa, 372 U.S., at 731; Day-

Brite Lighting, Inc. v. Missouri, 342 U.S. 421,

423 (1952). [413 U.S. 64].

* * * * *

Conduct or depictions of conduct that the

state police power can prohibit on a public

street do not become automatically protected

by the Constitution merely because the con-

duct is moved to a bar or a “live” theater

stage, any more than a “live” performance of

a man and woman locked in a sexual embrace

at high noon in Times Square is protected by

the Constitution because they simultaneously

engage in a valid political dialogue. [413 U.S.

67].

* * * * *

The States have the power to make a normally

neutral judgment that public exhibition of

obscene material, or commerce in such material,

has a tendency to injure the community as a

whole, to endanger the public safety, or to

jeopardize, in Mr. Chief Justice Warren’s words,

the State’s “right . . . to maintain a decent

society.”” Jacobellis v. Ohio, 378 U.S., at

199 (dissenting opinion). [413 U.S. 69].

The Supreme Court has held that within the Constitu-

tion the law may regulate the right to deal in obscenity,

Kaplan v. California, supra; United States v. Reidel, 402

ET Te

18a

U.S. 351 (1951); that Congress may prevent the use of

the mails for its distribution, United States v. Reidel,

supra; United States v. 37 Photos, 402 U.S. 363 (1971);

interstate transportation is subject to regulation prohibit-

ing transportation of obscene materials, United States v.

Orito, 413 U.S. 139 (1973), and that in determining what

is obscene, state standards may be used. Kaplan v. Cali-

fornia, supra. Further the Court held that commerical

sales of obscene materials, even to consenting adults, is

subject to state regulation. United States v. Orito, 413

U.S. 139 (1973): United States v. 12 200-Ft. Reels of

Film, 413 U.S. 123 (1973). The determination of ob-

scenity is to be made, not by national standards, but by

community standards. Miller v. California, supra; Paris

Adult Theatre v. Slaton, supra.

If states have the power to make a rational judgment

that exhibition of obscenity, or commerce in such materi-

al has a tendency to injure the community as a whole, to

endanger the public safety, or to jeopardize the States’

right to maintain a decent society, as the Paris Adult

Theatre sets forth, then why may it not control the ac-

tion of those who would operate such obscene and im-

moral places of business. Massage parlors are public places

and the issue arises as to whether juveniles can be restrict-

ed from them. They are operated solely to exploit sex.

The attraction of the massage parlors is sex, not massage.

Here, the prohibition of a person massaging the oppo-

site sex bears a rational relationship to a state objection

that is sought to be advanced by the Ordinances.

A law need not be in every respect logically consistent

with its aims in order to be constitutional. It is enough

19a

that there is an evil at hand for correction, and it appears

the particular legislative measure is a rational way to cor-

rect the evil. Williamson v. Lee Optical, 348 U.S. 483,

488 (1955). A city council is free to adopt any classifica-

tion it deems appropriate to promote the general welfare

so long as the classification bears a reasonable relation to a

proper legislative purpose. McGowen v. Maryland, 366 U.S.

420, 425 (1961); English v. Virginia Probation, etc., 481

F.2d 188 (4th Cir. 1973). Too, the existence of some in-

equality in the manner in which the State’s rationale is

achieved is not alone sufficient for striking down the Ordi-

nance. San Antonio School District v. Rodrigues, 411 U.S.

1 (1973). It may not be condemned simply because it im-

perfectly effectuates the State’s goals. Dandridge v. Williams,

397 U.S. 485.

In Village of Belle Terre v. Boraas, U.S.

(1974), 42 L.W. 4475, the Court dealing with a zoning or-

dinance and referring to its opinion in Euclid v. Ambler

Realty Co., 272 U.S. 365, said:

The ordinance was sanctioned because the

validity of the legislative classification was

“fairly debatable” and therefore could not

be said to be wholly arbitrary.

The Court further pointed out in the Village of Belle

Terre case that the “concept of the public welfare is

broad and inclusive,” and that the values it represents are

spiritual as well as physical, and it is within the power of

the legislature to determine that the community should be

well-balanced as well as carefully patrolled. Too, while

the legislation may not include all that should be included,

“That exercise of discretion, however, is a legislative not

a judicial function.” Footnote 5 quotes from Mr. Justice

20a

Holmes’ dissent in Louisville Gas Co. v. Coleman, 277

U.S. 32, 44:

“When a legal distinction is determined, as

no one doubts that it may be, between night

and day, childhood and maturity, or any

other extremes, a point has to be fixed or a

line has to be drawn, or gradually picked out

by successive decisions, to mark where the

change takes place. Looked at by itself with-

out regard to the necessity behind it the line

or point seems arbitrary. It might as well or

nearly as well be a little more to one side or

the other. But when it is seen that a line or

point there must be, and that there is no

mathematical or logical way of fixing it

precisely, the decision of the legislature must

be accepted unless we can say that it is very

wide of any reasonable mark.”

Asserting that the Ordinance violates the Equal Protec-

tion Clause of the Fourteenth Amendment, plaintiffs cite

Reed v. Reed, 404 U.S. 71 (1971) in support thereof.

A reading of that decision will lend little comfort to the

plaintiffs. There at issue was a statute granting rights

of qualification upon an estate, first to males, as opposed

to females. This is not the issue in the case at bar. The

Ordinance applies equally to them. In the Reed case, in

sneaking of the Equal Protection Clause, the Court said

at page 75:

In applying that clause, this Court has con-

sistently recognized that the Fourteenth

Amendment does not deny to States the

power to treat different classes of persons in

different ways. Barbier v. Connolly, 113

2la

U.S. 27 (1885): Lindsley v. Natural Carbonic

Gas Co., 220 U.S. 61 (1911); Railway Express

Agency v. New York, 336 U.S. 106 (194();

McDonald v. Board of Election Commissioners,

394 U.S. 802 (1969). 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 aribitrary, 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

circumstanced shall be treated alike.” Roy-

ster Guano Co. v. Virginia, 253 U.S. 412,

415 (1920

In Miller v. California, supra, the Court made it clear

that sex could not be exploited or “exhibited or sold with-

Out limitation in such public places.” 413 U.S. 26. In

footnote 8 on page 26, the Court pointed out:

Although we are not presented here with

the problem of regulating lewd public con-

duct itself, the States have greater power to

regulate nonverbal, physical conduct than to

suppress depictions or descriptions of the

same behavior.

The footnote continues:

In United States v. O’Brien, 391 U.S. 367,

377 (1968), a case not dealing with obscen-

ity, the Court held a State regulation of con-

22a 3a

duct which itself embodied both speech and APPENDIX B

nonspeech elements to be “sufficiently justi- FOR THE FOURTH CIRCUIT

fied if . . . it furthers an important or sub- No. 74-1656

stantial governmental interest; if the govern-

mental interest is unrelated to the suppression Patricia Hogge, Earle Phillips, T/A

of free expression; and if the incidental re- Paradise Massage Parlor, BO-JAC, LTD..,

striction on alleged First Amendment free- T/A Miss Masseuse,

doms is no greater than is essential to the Appellants,

furtherance of that interest.” See California versus

v. LaRue, 409 U.S. 109, 117-118 (1972). C. E. Johnson, City Manager, and Patrick

B. Minetti, Chief of Police, of the City

of Hampton, Virginia, each in their

But as the mode of expression moves from official capacity,

the printed page to the commission of public Appelles.

acts that may themselves violate valid penal

statutes, the scope of permissible state regu-

In the LaRue case, the Court said at page 117:

lations significantly increases. States may No. 74-1657

sometimes proscribe expression that is di- Scarlett Anne Hilliard

rected to the accomplishment of an end Earle Phillips,.

that the State has declared to be illegal | T/A French Massage Parlor

waen ee expression consists, in part, of Appellants,

cokduct”’ or “action,” , ,, , versus

Since a state of facts exists to justify the Ordinance, William E. Lawson, City Manager,

and to regulate illegal conduct, it should not be declared and Howard B. Blackmon, Chief of

unconstitutional. Police, each in their official

capacity,

In view of the above, even if plaintiffs, have a stand- _— tone

ing to prosecute these actions, the Ordinance is not un- —

constitutional.

The actions are accordingly DISMISSED. Appeals from the United States District Court for the

Eastern District of Virginia, at Newport News. Richard

B. Kellam, District Judge:

United States District Judge

Norfoik, Virginia

April 10, 1974

a KS

24a

Argued January 8, 1975 Decided August 19, 1975

Before CLARK, United States Supreme Court Justice, Re-

tired*, CRAVEN and BUTZNER, Circuit Judges.

Rebecca J. April Fitch (Kenneth C. Hogge; Carmel, Gray

and Hogge on brief) for Appellants in Nos. 74-1656 and

74-1657: Thomas E. Glascock for Appellees in No. 74

1656: Robert M. Roylance, Assistant City Attorney, for

Appellees in No. 74-1657.

* Sitting by Designation.

25a

CRAVEN, Circuit Judge:

Plaintiffs below sought injunctive and declaratory relief

against local ordinances designed to regulate massage parlors

in Hampton and Newport News, Virginia. With certain ex-

ceptions, the ordinances prohibit, under criminal sanction,

the massage of any person by another of the opposite sex.!

| The pertinent parts of the Hampton and Newport News ordinances

are as follows:

Massage by person of opposite sex prohibited; excep-

tions.

It shall be unlawful for any person to administer, for

hire or reward, to any person of the opposite sex any

massage, any alcohol rub or similar treatment, any fo-

mentation, any bath, or any electric or magnetic treat-

ment, nor shall any person cause or permit in or about his

place of business, or in connection with hi business, any

agent, employee or servant or any other person under

his control or supervision to administer any such treat-

ment to any person of the opposite sex.

This section shal] not apply to any treatment admini-

stered in good faith by a physician, surgeon, chiropractor,

osteopath or physical therapist duly licensed by the

Commonwealth fo Virginia, or to a licensed nurse act-

ing under the direct prescription and direction of any

such physician, surgeon, chiropractor or osteopath, nor

shal] this section apply to barbers of beauticians who

give massage to the scalp, the face, the neck or the

shoulders only.

Hampton, Va., Code § 22.1-I] (1972).

(a) It shall be unlawfui for any establishment, owner,

or Operator regardless of whether it is a public or private

facility, to operate as a massage parlor, bath parlor,

health club or any similar type of business, where any

physical contact or massage with the recipient of the

(continued)

26a

That prohibition was attacked as requiring sex discrimina-

tion in the employer of massage parlor attendants, in con-

flict with Title VII of the Civil Ri ghts Act of 1964, 42

U.S.C. § 2000e et seq., and therefore inoperative under

the Supremacy Clause, U.S. Const. Art. VI.

\(continued)

service provided by said establishment is provided by a

person of the opposite sex.

(b) It shall be unlawful for any employee, individual,

owner or operator of such establishment or any other type

establishment to give or administer a massage to a member

of the opposite sex.

Newport News, Va., Code Cap. 21C (1972).

The preamble to the Hampton ordinance reads in part as follows:

WHEREAS, the Council of the City of Hampton, Virginia,

is authorized. . . to exercise all powers which in the opinion

of the Council are necessary or desirable to promote the

general welfare of the City and the safety, health, peace,

good order, comfort, convenience, and morals of its inhabi-

tants; and,

WHEREAS, upon report of the Division of Police, admini-

strative officers, and inhabitants of the City, such places

called “‘massage parlors” and similar establishments as

hereinafter defined are being used, or may be used be-

cause of their nature, as houses of prostitution, or places

where disorderly, lewd, lascivious and unlawful conduct

or exhibitions occur; and,

WHEREAS, it is the opinion of the Council of the City

of Hampton, Virginia, that it is proper and fitting that

the massage parlors and similar establishments, as here-

inafter defined, should be regulated in order to protect

the public safety, health, good order and morals of the

City, and to aid in the enforcement of its, and the

State’s, laws.

27a

In Joseph v. Blair, 482 F.2d 575 (4th Cir. 1973), re-

hearing denied, 488 F.2d 403, cert. denied, 416 U.S. 955

(1974), we reversed an earlier order of the district court

that dismissed these complaints on the basis of Younger

v. Harris, 401 U.S. 37 (1971). We noted in passing that

a similar ordinance of the City of Falls Church, Virginia,

had been adjudged constitutional by the Virginia Supreme

Court in Kisley v. City of Falls Church, 212 Va. 693,

187 S.E.2d 168 (1972), and that an appeal to the Supreme

Court of the United States had been dismissed for want

of a substantial federal question, 409 U.S. 907 (1972).

But we then felt that the Court’s dismissal in Kisley should

not be treated as an adjudication on the merits because

the representations of the parties made in their briefs and

arguments indicated that at least some of the federal claims

sought to be litigated in the instant case were either not

raised in the Virginia suit or were not passed upon in any

substantial way by the Virginia Supreme Court, pointing

specifically to plaintiffs’ claim that the ordinances were

repugnant to Title VII of the Civil Rights Act of 1964.

Quite recently, the United States Supreme Court has

spoken to the question among the circuits with respect

to the meaning to be accorded dismissal for want of a

substantial federal question. Such a dismissal is a decision

on the merits binding upon the inferior federal courts.

It is stare decisis on issues properly presented to the Su-

preme Court and declared by that Court to be without

substance. Hicks v. Miranda, 17 Crim. L. Rep. 3113

(June 24, 1975). Thus we are led to compare again the

issues presented on the evidence in these cases with the

issues decided by the Supreme Court in Kisley.

In Kisley, supra, the Virginia Supreme Court sustained

the constitutionality of Ordinance No. 512 of the City of

28a

Falls Church, which ordinance provided that:

It shall be unlawful for any establishment, re-

gardless of whether it is a public or private

facility, to operate as a massage salon, bath

parlor, or any similar type business, where

any physical contact with the recipient of

such services is provided by a person of the

opposite sex.

The Virginia Supreme Court considered and rejected argu-

ments that Ordinance No. 512 deprived owners and opera-

tors and employees of massage parlors property rights with-

out due process of law and denied them equal protection

of the laws, quoting favorably from Ex parte Maki, 133

P.2d 64 (1943):

“The ordinance applies alike to both men and

women .... The barrier erected by the ordi-

nance against immoral acts likely to result from

too imtimate familiarity of the sexes is no more

than a reasonable regulation imposed by the city

council in the fair exercise of police powers.”

“The reasonable exercise of the police

power in regulating any occupation in order to

maintain the moral welfare does not arbitrarily

deprive a person so engaged of his property

Enactments that curb the vicious or

restrain the wicked necessarily restrict the

emoluments of his enterprise. However, such

results are not to be considered in determining

the validity of a law.

* * * * *

29a

“There is nothing in the ordinance that de-

nies the equal protection guaranteed by the

Fourteenth Amendment... .”

Kisley v. City of Falls Church, supra, 187 S.E.2d at 171.

The Falls Church ordinance examined in Kisley, supra,

is substantially identical with the ordinances of Hampton

and Newport News set out in footnote 1, supra. We think

the issue presented to the Supreme Court in the appeal of

Kisley and declared by it to be without substance included

the question sought to be raised here: whether the ordi-

nances violate the fourteenth amendment’s equal protec-

tion clause. Thus, summary dismissal of the appeal in

— is a perfectly clear precedent that is binding upon

us.

The only question remaining is plaintiffs’ contention

that the ordinances are in conflict with Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. The

district court noted that the Act defines the term employ-

er to mean “‘a person engaged in an industry affecting

commerce who has fifteen or more employees for each

working day in each of twenty or more calendar weeks in

the current or preceding calendar year, ....”” He found

as a fact that “the evidence does not establish any of

plaintiffs meet this test.” The evidence is both conflict-

ing and confusing, but there is substantial support for such

a finding, and it is not clearly erroneous.

AFFIRMED.

2 We need not decide whether other cases in the Supreme Court

dismissed for want of a substantial federal question presented a similar

issue. See Smith v. Keaton, 419 U.S. 1043 (1974); Rubenstein v. Towr

ship of Cherry Hill, 417 U.S. 963 (1974); Patterson v. City of Dallas,

372 US. 251 (1963).

30a

MR. JUSTICE CLARK, concurring:

I concur but wish to comment on the holding that we

are bound here by the 1972 order in the Kisley case which

was dismissed by the Supreme Court for want of a substan-

tial federal question. The Supreme Court's statements in

Hicks v. Miranda, No. 74-156 (U.S., filed June 24, 1975),

to the effect that such dismissals are decisions “on the

merits”. seem to me to fly in the face of the long-estab-

lished practice of the Court at least during the eighteen

Terms in which I sat. During that time, appeals from

state court decisions received treatment similar to that ac-

corded petitions for certiorari and were given about the

same precedential weight. An unquestioning application

of the Hicks rule can lead to nothing but mischief and

place an unnecessary restraining hand on the progress of

federal constitutional adjudication.

Here, for example, the other members of the panel

thought, as did I, that there was a substantial federal

question presented by this case. The question deserves

elaboration. That is foreclosed by Hicks’ holding that we

must accept the Kisley dismissal as binding. Yet I can-

not believe that the Court in 1972 gave such serious con-

sideration to the merits of that case as to justify the pre-

cedential value now assigned to it.

3la

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 74-1656

Patricia Hogge. Earle Phillips, T/A Paradise Massage Parlor,

BO-JAC, LTD., T/A Miss Masseuse,

Appellants,

versus

C.E. Johnson, City Manager, and Patrick B. Minetti,

Chief of Police, of the City of Hampton, Virginia,

each in their official capacity,

Appellees.

No. 74-1657

Scarlett Anne Hilliard, Earle Phillips, T/A French Massage Parlor,

Appellants,

versus

William E. Lawson, City Manager, and Howard B. Blackmon,

Chief of Police, each in their official capacity,

Appellees.

Appeal from the United States District Court for

the Eastern District of Virginia, at Newport News,

Richard B. Kellam, District Judge

JUDGMENT

This cause came to be heard on the record from the

United States District Court for the Eastern District of Vir-

ginia and was argued by counsel.

On consideration wherefore, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court appealed from in this cause, be, and the same

is hereby, affirmed by our Court.

For the Court-by Direction

CLERK

32a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

74-1656/7

Patricia Hogge, Earl Phillips, T/A

Paradise Massage Parlor, BO-JAC, LTD,

T/A Miss Masseuse,

| Appelles.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA; AT NEW-

PORT NEWS.

Upon consideration of the petition for rehearing and

twe suggestion for rehearing en banc, no Judge having request-

ed a poll on the suggestion for rehearing en banc,

IT IS ORDERED that the petition for rehearing is

denied.

For the Court-by Direction

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.