Petition — Geisha House, Inc. v. Cullinane

Supreme Court brief1976

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IN THE

Supreme Court of the United States

OcToBEeR TERM, 1975

No. 75-1482

GEISHA House, INc., Petitioner

Vv.

Maurice J. CULLINANE, ET AL., Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

JoHN W. Karr

625 Washington Building

Washington, D.C. 20005

Counsel for Petitioner

Of Counsel:

GLENN R. GRAVES

625 Washington Building

Washington, D.C. 20005

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

CrraTion To Oprmtow Baiow ........ccccccssccccece 1

te ee le 2

PTO EE POPP CTT TP errr 2

UATRMENS GH THR CARD oo. cc cccccccccoccccsccscces 2

Reasons FOR GRANTING THE WRIT ...............00:- 6

I aS a et aes oe a a le id 13

fA RE eS ei eee ee oe a PE > la

CITATIONS

CASES:

Board of Education v. Barnette, 319 U.S. 624 (1943) .. 10

Colorado Springs Amusement, Ltd. v. Rizzo, 524 F.2d

ne mee 5

Dillenburg v. Krame, 469 F.2d 1222 (1972) .......... 11

Drueding v. Desbin, 380 U.S. 125 (1965) ............ 11

Dunn v. Blumstein, 405 U.S. 330 (1972) ............. 11

Edelman v. Jordan, 415 U.S. 651 (1974) ............ 12

Hicks v. Miranda, 422 U.S. 332 (1975)....4, 5, 6, 7,9, 10, 12

Hogge v. Lawson, 526 F.2d 833 (4th Cir. 1975) ...... 5,6

Jordan vy. Gilligan, 500 F.2d 701 (6th Cir. 1974) ...... 11

Kisley v. City of Falls Church, 409 U.S. 907 (1972)... 3,5,

8,12

Leoles v. Landers, 302 U.S. 656 (1937) .............. 11

McCarthy v. Philadelphia Civil Service Commission,

— U.S. —, — U.S. Law Wk. — (No. 75-783, de-

GRR BS is OD ono inn ccc cccccceccecsincs 10

Pernell v. Southall Realty, 416 U.S. 363 (1974) ...... 7

Rubenstein v. Cherry Hill, 417 U.S. 963 (1974). ..3,5, 8, 12

Serrano v. Priest, 487 P.2d 1241 (Cal. Sup. Ct. 1971)... 11

Shapiro v. Thompson, 394 U.S. 618 (1969) .......... 13

Shelton v. Tucker, 394 U.S. 618 (1969) ....0.0000..... 13

Smith v. Keator, 419 U.S. 1043 (1974) ..........3,5,8,12

il Citations Continued

Page

Terrace v. Thompson, 263 U.S, 197 (1923) .......... 18

Truaz v. Ratch, 239 U.S. 33 (1915) .....cccccccceces 13

United States ex rel. Epton v, Nenna, 318 F.Supp. 899

SESsis DEE” sNo Wk 5s dn aehecd apewsk bates cus 11

STATUTES:

47 District of Columbia Code 2311 (1973 Ed.) ....... 3,4

Orner AUTHORITIES:

srennan, The National Court of Appeals: Another Dis-

sent, 40 U.Chi.L.Rev. 473 (1973) ......ccccccess 12

Currie, The Three-Judqge District Court in Constitu-

fional Litigation, 82 U.Chi.L.Rev. i Ue wiuecween 1]

Frankfurter & Landis, The Business of the Supreme

Court at October Term 1929, 44 Harv.L. Rev. ® 14

CEE. ciaka bourses be seaes eee wake seuss toutes ens 11

Note, 43 Fordham L. Rev. 476 (1974) ............... 11

Report of the Study Group on the Caseload of the Su-

Pe Tne ee I D. 6:6.6:0695-456 0 a-00 bene wecens 1]

IN THE

Supreme Court of the United States

OcToBerR TERM, 1975

No.

GEISHA House, INc., Petitioner

Maurice J, CULLINANE, ET AL., Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

Petitioner Geisha House, Inc. prays that a writ of

certiorari issue to review the judgment of the District

of Columbia Court of Appeals entered in the above-

entitled case on March 22, 1976.

CITATION TO OPINION BELOW

The opinion of the District of Columbia Court of

Appeals is reproduced in the appendix to this petition.

There also appears the decision by Chief Judge Harold

Greene of the Superior Court of the District of Colum-

bia, overturned by the appellate court.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S. C. Section 1257(3).

QUESTIONS PRESENTED

1, Should the lower court’s serious misapplication of

the Hicks **doetrine’’ whereby it decreed certain con-

stitutional issues foreclosed by the Supreme Court

which this latter tribunal has never actually addressed,

be corrected and its recurrence in other forums discour-

aged by a more exact delineation of the elasticity of

the doctrine ?

2. Should the doctrine be clarified or modified in any

respect ?

3. Is one who earns his living as a massagist plying

one of the ordinary trades or occupations entitled to

constitutional protection as a fundamental freedom ?

If so, what compelling state interest can justify a

revenue measure that makes it a crime for a massagist

to work on customers of the opposite gender in licensed

massage parlors but leaves him free to-do so anyplace

else in the city ?

STATEMENT OF THE CASE

Geisha House, Ine., is a Distriet of Columbia eor-

poration whose pri «ipal object is the operation of a

massage parlor business, Having been issued articles

ef incorporation (to administer “bisexual massages’’),

a massage parlor license and an oeeupaney permit, it

opened for business on June 27, 1974, at 1819 L Street,

N. W. Not long thereafter the local police made sue-

cessive arrests of massagists under contract to appellee,

effectively shutting down its business. The sole basis

0 asl

for the arrests and related manifestations of police

interest in the business was D. C. Code § 47-2311. This

is part of a 1932 revenue bil! enacted by the Congress

for the District which, in relevant part, purports to

make it unlawful

‘* .. for any female to give or administer massage

treatment or any bath to any person of the male

sex, or for any person of the male sex to give or

administer massage treatment or any bath to any

person of the female sex, in any establishment

licensed under this seetion.’’ '

Finding its business thus imperiled, the corporation

filed a civil action seeking to enjoin respondents from

further enforcement of the allegedly unconstitutional!

statute. The case was heard by Superior Court Chief

Judge Harold Greene before whom petitioner sub-

mitted evidence by affidavit, testimony and stipulation.

Respondents submitted no evidence at either of the two

' This language differs materially from the more recently en-

acted ‘‘massage parlor’’ ordinances presented to this Court for

review in NSmeth v. Keatar, 419 US. 1043 (1974). Rubenstein v.

Cherry Hill, ALT US. 963 (1974), and Kisley v. City of Falls

Church, 409 US, 907 (1972), dismissing for want of a substantial

federal question, respectively, 285 N.C. 530, 206 S.E. 2d 203 (1974),

No. 10, 027 (N.I.Sup.Ct., Jannary 29, 1974), and 212 Va. 693,

187 S.E 2d 168 (1972) and discussed, infra. The 1932 District

of Columbia formulation outlaws cross-sexual massage only within

licensed massage parlors, leaving the practice lawful everywhere

else in the city. The state ordinances involved in the three cases

above were comprehensive attempts to regulate the practice city-

wide by enumerated prehibitions and exemptions which, accepting

the legitimacy of their objectives, were not unrational. In other

words, they were cast in the logical form ‘‘all cross-sexual massage

is prohibited except where specifically exempted herein’’ whereas

the District of Columbia statute means that ‘‘cross sexual mas-

sage is permissible everywhere in the city except within licensed

parlors,”’

hearings held by the Court. They acknowledged

through counsel that they could discern no legislative

purpose underlying the statute in question other than

the raising of revenue. Nor did they offer evidence,

or claim to be able to show, that any criminal activities

(other than the infraction of § 47-2311 itself) had oe-

curred on the Geisha business premises or would be

likely to if the injunction issued.

On July 31, 1974 Judge Greene granted a prelimi-

nary injunction and on September 25, 1974, after a

second hearing, he made it permanent, accompanying

the order with a 34-page opinion. He declared the

statute unconstitutional on multiple grounds. Among

other things, he held that the practice of massage, a

common trade or oceupation, enjoyed constitutional

protection as a fundamental freedom. He thus held

that there was no compelling state interest making it

hneeessary to outlaw the practice on customers of oppo-

site gender within licensed massage parlors but no-

where else. His was also the first decision to hold that

under the Court Reform and Reorganization Act of

1970 the Superior Court possesses jurisdiction to enjoin

the enforcement of a Congressionally-enacted statute

applicable only within the District of Columbia.

After the ease had been briefed, following an appeal

hy respondents, this Court’s decision in Hicks v.

Miranda, 422 U.S. 332 (1975), was published. There

the Court decided an appeal trom a Three-Judge Court

invelving a constitutional challenge of a California

obscenity statute. It was the same statute whose in-

vulnerability to the same constitutional challenge had

shortly before been affirmed by the state supreme court,

after which the Supreme Court had dismissed the

appeal therefrom for want of a substantial federal

question. Writing for the majority, Justice White

observed that

“The District Court should have followed the

Second Circuit's advice ... that ‘unless and until

the Supreme Court should instruct otherwise,

inferior federal courts had best adhere to the view

that if the Court has branded a question as unsub-

stantial it remains so except when doctrinal devel-

opments indicate otherwise.’’ 422 U.S. at 344

This language was later interpreted by the Third

and Fourth Cireuits as binding upon them in cases

involving cross-sexual massage ordinances, Colorado

Springs Amusement, Ltd. v. Rizzo, 524 F. 2d 571 (3rd

Cir. 1975); Hogge v. Lawson, 526 F. 2d 833 (4th Cir.

1975). They reviewed the jurisdictional statements in

three appeals from state courts involving cross- sexual

ordinanees which the Supreme Court had earlier dis-

missed for want of a substantial federal question,

Smith v. Keator, 419 U.S. 1045 (1974); Rubenstein v.

Cherry Hill, 417 U.S. 963 (1974); and Kisley v. City

of Falls Church, 409 U.S. (1972), concluding that the

dismissa's had, by implication, foreclosed certain of

the constitutional contentions, although none had ever

been expressly adjudicated or the subject of an opinion

by the Supreme Court. On this approach they felt

they were barred from considering the analytical merits

of the constitutional claims, notwithstanding the exis-

tence of substantial and unimpeached decisional au-

thority, both state and federal, in support of them.

The District of Columbia Court of Appeals followed

an identical course in the instant ease, except that it

did not stop to evaluate the precise facts and conten-

tions at bar and compare them carefully with those

purportedly decided in the three Supreme Court dis-

missals.” It reversed J udge Greene in an opinion dated

March 22, 1976. Petitioner’s petition for rehearing

en bane was denied without comment on April 9, 1976.

From these decisions petitioner seeks the review of

this Court.

REASONS FOR GRANTING THE WRIT

Former Supreme Court Justice Tom Clark, sep-

arately concurring in H ogge, supra, forecast in no un-

certain terms the serious dangers of what has come to

be called the Hicks **doctrine’’. He said,

‘

“The Supreme Court’s statements in Hicks vy.

M iranda, 422 U. S. 332. . . to the effect that such

dismissals are decisions ‘on the merits’ seem to me

to fly in the face of the long-established practice .

of the Court at least during the eighteen Terms in

Which T sat. During that time, appeals from state

court decisions received treatment similar to that

accorded petitions for certiorari and were given

about the same precedential weight, Ay UNRGQUES-

tioning application of the Hicks rule can lead to

noth ing but mischief and place an unnecessary re-

straining hand on the progress of federal consti-

tutional adjudication.

‘Here, for example, the other members of the

panel thought, as did I, that there was a substan-

tial federal question presented by this case. The

question deserves elaboration. That is foreclosed

by Hicks’ holding that we must accept the Kisley

| * Nor did it address the issue of the Superior Court’s jurisdic-

tion, evidently taking the view that since it had not been contested

there was no need to decide it. See Appendix, p. 29a.

dismissal as binding. Yet I cannot believe that the

Court in 1972 gave such serious consideration to

the merits of that case as to justify the preceden-

tial value now assigned to it.’’ (First emphasis

supplied) 526 F. 2d at 836

The case at bar acutely illustrates the mischievous

potential of the doctrine. By an application of it, ‘‘un-

questioning’’ at best, the District of Columbia Court

of Appeals elided at least some issues of major con-

stitutional dimension, upset significant property and

professional values, and did so in the name of the Su-

preme Court when this tribunal has not hitherto had

an opportunity to consider a statute and factual con-

text exactly like those in question here. The elasticity

of the Hicks doctrine is plainly a major “problem of

general federal law of nationwide application,’’ Per-

nell vy, Southall Realty, 416 U. 8. 363, 366 (1974), hence

eminently suitable for review by this Court even though

arising from the District of Columbia. And because

this appears to be the first case in which the problem is

so clearly focused, the Court should grant this petition

to insure that the mischief does not spread.

Assuming arguendo its soundness and applicability

to the District of Columbia court, the //ichs ‘‘doctrine”’

was nonetheless radically misapplied by that body. If

a court deems itself bound by summary dismissals, said

this Court in /Ticks ‘‘its initial task . .. [is] to aseer-

tain what issues ... [were] properly presented in [the

Supreme Court dismissals] and declared by [the Su-

preme Court] to be without substance.”’ Hicks v.

Miranda, 422 U.S. 332, n.14. There are at least three

important respects in which the statute at bar stands

on a different constitutional footing than any of the

ordinances presented on appeal to the Supreme Court,

all of which were unaccountably ignored by the District

of Columbia Court of Appeals.

First, the ordinances in Kisley, Smith and Ruben-

stein were of recent vintage, expressly enacted for the

purpose of protecting the public morals, in the wake

of a proliferation of massage parlors in which there

was a demonstrable threat of collateral law violations.

The 1932 enactment here in question was, by its terms,

only a revenue measure and there is concededly no evi-

dence of any other legislative purpose. What the panel

actually did was to treat the statute us if it has been a

legislative response to the mischief presumably threat-

ened by the sizeable number of massage parlors which

opened in the city after Judge Greene’s decision, when

in fact this was not the ease,

Second, quite unlike the earlier cases before the Su-

preme Court, there was absolutely no evidence in this

case, or before Congress in 1932, that cross-sexual mas-

sage in licensed parlors would lead to the commission

of collateral sex offenses such as prostitution. There

is no prohibition under local law of the sort of massage

provided by petitioner, including massage of a cus-

tomer’s genitalia, thus there would be no incentive for

it to break any sex laws even if it were disposed to,

which it most decidedly is not and never has been. Not

only did the panel assume a nonexistent legislative pur-

pose, but it likewise assumed that there was a factual

probability of collateral sex law violations when the

record was bereft of any evidence of this and. indeed,

affirmatively showed that petitioner had broken no such

laws and was not likely to do so. This ‘‘dual fietion”’

approach was intrinsically wrong and blinked the card-

inal fact that in none of the Supreme Court dismissals

could the Supreme Court be said to have decided that

the questions here are unsubstantial.

Third, the statute here forbids cross-sexual massage

only within parlors licensed under the statute, leaving

everyone else in the city free to administer such mas-

sages. In this also it differs from the ordinances in-

volved in the Supreme Court dismissals. Such a dis-

tinction, like those above, obviously has a strong bear-

ing on the rationality of the means adopted by the

legislature to achieve its putative objective. It means,

again, that the Supreme Court has never decided, even

by implication, that the constitutional issues now at bar

are unsubstantial.

The lower court’s approach to //icks was that if the

‘tissues here were for all practical purposes previously

presented to the Supreme Court... this would leave

little for us in deciding this case.’’ (Appendix, p. 30a)

But in Hicks this Court did not, we think, authorize

inferior tribunals, either for practical or legal pur-

poses, to disregard such constitutionally resonant

points as those just enumerated above. The effect of

the lower court’s very loose application of the doctrine

was to sweep these important issues aside, nominally

adjudicated on the authority of the Supreme Court, but

never actually adjudicated by any court. Unless this

case is reviewed, and the proper implementation of

Hicks further illuminated, this unfortunate ‘‘for-all-

practical-purposes’’ example will be allowed to stand

for all courts, state and federal, to follow. Many will

be more conscientious, some no doubt will not; but the

temptation is one from which all, however resolute,

should he delivered. We say this heeause the gravity

of the subtle evil in this approach is hard to overstate,

especially if it becomes a trend. The instant perver-

sion of Iicks is evil because it is an ellipsis; a mode

of ‘‘deciding’’ issu°s—perhaps especially ‘‘controver-

sial’’ ones—without ever confronting them, It would

he difficult to imagine a judicial practice more subver-

sive of the rule of law itself; yet as the practice be-

comes systemic the myriad injustices generated and

buried in individual cases will readily become too nu-

merous fer this Court to police on a case-by-case basis.

For this reason, without more, this petition should be

granted.

Il.

As an obvious correlative of the above, this case also

presents an opportunity for this Court to reconsider

or modify the Hicks teaching, should it be so disposed.

Although the teaching has been recently reaffirmed,

MeCarthy v. Philadelphia Civil Service Commission,

—vU.8.—, — U.S. Law Wk. — (No. 75-783, decided

March 22, 1976), it has never been rationalized in any

plenary fashion. Conceptually, of course, it follows

that because appeals are matters of right an order of

dismissal or affrmance is adjudieatory in character.

But it is equally obvious that this putative adjudica-

tion-bv-order is a poor and highly imprecise method

for the enunciation of law. In the absence of an opin-

ion there is no way by which a lower court can ascer-

tain upon exactly what rules of law or in exactly what

factual context the Court was acting. Compounding

the uncertainty is the fact that summary disposition of

x ense by the Supreme Court does not prevent it from

later holding a full hearing or deciding the other way.

F.g.. Compare Board of Lducation vy. Barnette, 319

ee ee ee eee ee et ee

U.S. 624 (1943) with Leoles v. Landers, 302 U. 8. 656

( 1937 ) and Dunn v. Blumstein, 405 U. S. 330 (1972)

with Drueding v. Desbin, 380 U. S. 125 (1965),

For these and other reasons most federal circuits

have traditionally accorded summary decision little if

any precedential weight. See Note, 43 Fordham L.

Rey. 476, 478 (1974). The Ninth Circuit has effectively

rejected it, Dillenburg v. Kramer, 469 F. 24 1992. 1995

(1972) (summary affirmance of ease within Court's

‘obligatory appellate jurisdiction has verv little pre-

cedential significance’) and the Sixth has done so in

terms, Jordan Vv. Gilligan, 500 F. 2d 701, 707-708 (6th

Cir. 1974), as have some state courts. e.g. Serrano Vv

Priest, 487 P. 2d 1241, 1264 and n. 35 (Cal. Sup. Ct.

1971). A prestigious study zroup recently concluded

that the Court’s summary disposition of cases on its

appellate docket ‘tis not a satisfactory equivalent for

the judgment on the merits it is supposed to be.”’

Report of the Study Group on the Caseload of the

Supreme Court 26 (1972); see also, United States ex

rel. F pton Vv. Venna, 318 F. Supp. 899, 906, n. 8 (S. D

N. Y. 1970); Currie, The 1! ree-Judge District Court

in Constitutional Litigation, 32 U Chi. L. Rev. 1 74

n. 365 (“It has often been observed that the dismissal

of an appeal, technically an adjudication on the merits

is in practice often the substantial equivalent of M

denial of certiorari.’’); Frankfurter & Landis. The

Business of the Supreme Court at October Term 1929

44 Harv. L. Rev. 1, 14 (1930)° ="

* Largely because of the general dissatisfaction with this sum

mary disposition of appeals the Study Group has recommend d

that the Court's appellate jurisdiction be abolished, leavin il

review discretionary in character, See Study Group supra 596-605

611-612. Mr. Justice Brennan has warmly endorsed this “ate.

Moreover, in Edelman V. Jordan, 415 U. S. 651

(1974), the Court held that the Eleventh Amendment

bars the retroactive payment of benefits to one who

has successfully challenged the denial of grants under

a state aid program supported by federal funds. This

was squarely contrary to three earlier decisions 1

which the Court had summarily affirmed such retro-

active payments. Writing for the Court, Justice Rhen-

quist offered one of the rare pre-Hicks comments by a

Justice on the vexatious question of the precedential

‘alue of summary dispositions. He noted that ‘*sum-

mary affirmances ... obviously ... are not of the same

precedential value as would be an opinion of this Court

treating the question on the merits’? 415 U.S. at 671.

Given the problematical character of the doctrine

as well as the dan,er it portends, any modification or

clarification the Court might wish to provide at this

time would be of singular importance.

Ill

The constitutional issues surviving Kisley, Ruben-

stein and Smith are of considerable practical and con-

ceptual importance. They can be variously formulated

hut revolve about the ‘dual fiction’? method of adjudi-

eation mentioned above, the legitimacy of eriminal

phophylaxis as an imputed legislative objective on the

peculiar factual cireumstances of this case, and the

matter of invidious discrimination. The last question

mendation, noting that since the ‘policy considerations that gave

rise to the distinction between review by appeal and review

by writ of certiorari have long since lost their force, I support

most enthusiastically the proposal to abandon the appellate juris-

diction... .’’ Brennan, The Notional Court of Appeals: Another

Dissent, 40 U. Chi. L. Rev. 473, 474 (1973).

ean be more familiarly stated thus: Assuming that a

massagist’s right to ply, her trade is a **fundam " tal

freedom’’, Trvar v. Raich, 239 U.S. 33, 36 ( 1915 “tg

also, Terrace v. Thompson, 263 U. S. 197 ( 1993) “is

there a compelling state interest for the Piascrs Bg

ment of which it is *‘necessary’’, Shapiro v Thom ) se

394 U.S. 618 (1969) ; Sie/ton v. Tucker, 364 U , 79,

488 (1960), that work on male customers in a Meateed

massage parlor be made a crime when it is not °

anywhere else?) This precise question has never | oe

decided by this Court. In view of the widespread a .

liferation of massage parlors and the sear ; iblie

interest in them throughout the country, ad fi iti ;

resolution of the issue would be quite timely =

CONCLUSION

For the foregoing reasons iti

Peary regoing reasons the petition should be

Respectfully submitted,

JoHN W. Karr

625 Washington Building

Washington, D.C. 20005

pap ey Counsel for Petitioner

GLENN R. GRAVES

625 Washington Building

Washington, D.C. 20005

April 14, 1976

APPENDIX

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

Geisua House, Ive.

Vv.

Jerry V. Witsowx and Rosertr L. Dot tarp

(.A. 6044-74

Opinion

This case presents two legal issues heretofore unresolved

in the District of Columbia. The first, which is of broad

significance, involves the power of a judge of the Superior

Court to enjoin the enforcement of an Act of Congress on

grounds of unconstitutionalitv, notwithstanding 28 U.S.C.

g 2989 The second icsue, which is more limited in nature,

concerns the constitutionality of D.C, Code § 47-2311 whieh

regulates certain aspects of the operation of massage par-

lors.

The faets are essentially undisputed and were largely

stipulated between the parties.

“The plaintiff is a corporation recently formed and li-

censed to do business as a massage establishment in the

District of Columbia. Defendant Jerry V. Wilson is the

Chief of the Metropolitan Police Department of the Dis-

trict of Columbia and defendant Robert L. Dollard is

an inspector of the Metropolitan Police Department, in

charge of the Morals Division.

On March 1, 1974, Plaintiff was issued a certificate of in-

corporation by the District of Columbia Recorder of Deeds.

Its articles of incorporation assert as one of its corporate

purposes the operation of a massage establishment. Plain-

tiff opened for business on June 17, 1974, at 1819 L Street,

N.W.

‘

°!a

On June 26, 1974, two women employees were arrested

inside the premises occupied by Geisha House, pursuant to

D.C, Code § 47-2311 which provides in pertinent part that

‘*tijt shall be unlawful for any female to give or administer

massage treatment or any bath to any person of the male

sex, or for any person of the male sex to give or administer

massage treatment or any bath to any person of the female

sex, in any establishment licensed under this section. Any

person violating the provisions of this section shall, upon

conviction, be punished as hereinafter provided in this chap-

ter.”’‘ The arrests were made as plaintiff’s employees be-

gan to give a massage to undercover officers of the Metro-

politan Police Department. These arrests had no basis

other than alleged violations of section 2311. No immoral

activity, such as prostitution or so.icitation for the purpose

of prostitution, is claimed by the District to have occurred

on the premises of Geisha House.

Because of continuing arrests,? plaintiff was foreed to

shut down its business on July 3, 1974, at a substantial finan-

cial loss. On July 11, 1974, it moved this Court for a tem-

porary restraining order to restrain defendants from en-

forcing or implementing section 2311. That motion was de-

nied, but on July 31, 1974, the Court granted a motion for

preliminary injunction which halted the enforcement of the

statute on plaintiff’s premises pending a decision on the

merits. On September 16, 1974, a hearing was held on

plaintiff’s request for a permanent injunction. In the mean-

time, the preliminary injunction has remained in effect.

At the outset the Court is met with the question of its

power to enjoin the enforcement of an Act of Congress of

'The punishment provided for a violation of the statute is im-

prisonment for not more than 90 days or a fine of not more than

#300. D.C. Code § 47-2347.

*On July 3, 1974, another female employee was arrested at

the Geisha House and she, too, was charged with a violation of

D.C. Code § 47-2311.

ee eee

ee ae ae

ome a

Ne RAY ee es eae

Le SN Ct ee ee ee

local application. Although the parties have stipulated to

the existence of such power, the Court is obligated to ex-

amine the matter independently since the issue goes to its

jurisdiction over the subject matter.

28 U.S.C. § 2282 provides that

An interlocutory or permanent injunction restraining

the enforcement, operation or execution of any Act of

Congress for repugnance to the Constitution of the

United States shall not be granted by any district court

or judge thereof unless the application therefor is heard

and determined by a district court of three judges under

section 2284 of this title.

It might be argued that beeause of this statutory pro-

vision the Court lacks power to issue such an injunction, and

indeed, Judge Oliver Gasch, sitting as a Superior Court

Judge pursuant to 28 U.S.C, § 292(e) and D.C. Code § 11-

GO8(c), recently held in C.A. 7600-73—Washington v. Elli-

son that a three-member panel of federal judges is required

to enjoin enforcement of a congressional enactment even

if it affects only the District of Columbia. After full con-

sideration, I have come to a contrary conclusion, for the fol-

lowing reasons.

First. The statute itself applies in terms only to district

courts and their judges.*. The Superior Court of the Dis-

trict of Columbia is not a district court, and its judges are

not district court judges. The Superior Court was created

under the power conferred upon Congress by Article I of

31t has been held that, at least for some purposes, the term dis-

trict courts as used in Title 28 of the U.S. Code means only those

courts which are ereated under Article TIT of the Constitution

and which are constituted by Chapter 5 of Title 28. Mookini v.

United States, 303 U.S, 201; Wells v. United States, 214 F.2d 380

(1954); International Longshoremen’s Union v. Wirtz, 170 F.2d

183 (9th Cir. 1948); Reese v. Fultz, 96 F. Supp. 449 (D. Alaska

1951).

the Constitution (see infra), and the language of section

2282 does not explicitly apply to it.

Second. The U.S. Court of Appeals for the First Cireuit

has held that section 2282 does not preclude a single judge

in Puerto Rico from enjoining an act of its territorial legis-

lature. Puerto Rico Light aud Power Co., v. Colom, 106 F.

1 345 (1st Cir. 1939). Although at the time of the court's

ruling the Puerto Rico legislature derived its powers di-

rectly from Congress, and although its acts were subject to

congressional annulment and a limited Presidential veto, the

exercise of the injunctive power by a single judge was

viewed by the court in Colom not to be inconsistent with 28

U.S.C. § 2282. According to the Court of Appeals, section

296? was meant to limit the jurisdiction of Article ILL courts

acting with respect to general federal legislation, not that of

courts, which, like the District Court for the District of

Puerto Rico, are ercated pursuant to special congressional

powers and deal with more limited subject matter. The

courts in the District of Columbia were, of course, likewise

created under congressional powers unrelated to Article ITT.

Thus, the analysis of the court in Colom is directly appli-

enble to the present case.

*This Court does not re ad the Colom decision as broadly holding

that any non-Article IT] court would have the power to enjoin

en orcement of any act of Congress. See also Stamback v. Mo

Hock. 336 U.S. 368 (1949): Penegaricano vy. Allen Corp., 267 F.2d

50 (7th Cir. 1959); Vera v. Mejias, 206 F.2d 337 (1st Cir. 1953);

ILWU v. Akerman, 82 F. Supp. 65 (D. Hawaii 1949). Any such

coustruction would, of course, create serious problems under the

Supremacy Clause. Tlowever, just “as in Colom there were no

such problems because the territorial court and the legislature

were both ereations of the Congress, so here, a recognition that

jurisdiction obtains in this Court (which is likewise a creature of

the Congress) to cnjoin an act of Congress of local applicability,

would involve no Supremacy Clause difficulties. For that rea-

son this Court does not share the concern expressed in the Wash-

ington case. supra, that unless section 2282 were to be applied

rigidly, state courts mieht enjoin federal statutory schemes.

Nothing herein need or should be construed to extend authority to

invalidate congressional enactments to courts created by a State.

SCR A te He pe

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Ae eee a teee Ae 1 ae

Third. The Congress in recent vears enacted two stat-

utes which bear significantly upon the jurisdictional ques-

tion. The first of these is the District of Columbia Court

Reform and Criminal Procedural Act of 1970, Public Law

91-358, 91st Congress (July 29, 1970). The purpose of that

law, as the Supreme Court recognized in Palmore v. United

States 411 U.S. 389 (1973), was

to relieve the reeular Article IIIT courts... from the

smothering responsibility for the great mass of liti-

gation, civil and criminal, that inevitably characterizes

the court system in a major city and to confine the work

of those courts to that which they were designed to,

namely, to try cases arising under the constitution and

the nationally applicable laws of Congress. The other

part of the remedy, equally essential, was to establish

an entirely new court system with functions essentially

similar to those of the local courts found in the 50

States of the Union with respousibility for trying and

deciding those distinctively local controversies that

arise under local law, ticluding local criminal laws hav-

ing liltle, tf any impact beyond the local jurisdiction

(411 U.S. at 408-409) (emphasis added),

The Court emphasized that the local tribunals were

created pursuant to the plenary Article | power of Con-

gress which it regarded as equivalent to the power of a

state government in all cases where legislation is possible

(411 U.S. at 407). Congress, said the Court, has power to

exercise within the District ‘all legislative power that the

legislature of a State might exercise within the State; and

may vest and distribute the judicial authority in and among

courts and magistrates... .°’ (411 U.S. at 397).

I believe it is fair to conelude from these statements in

Palmore that the Supreme Court there viewed the judicial

evstem of the District of Columbia as being essentially like

the judicial system of a State, and that it regarded the Con-

gress, when legislating for the District of Columbia, as

being akin to the legislature of a State.

This, of course, does not mean that the analogy between

the District and a State is precise and apt for all purposes.’

The Supreme Court made it clear in Pernell v. Southall

Realty, 94 S.Ct. 1723, 1726, note 4 (1974) that it did ‘not

intend to imply that the District of Columbia Superior

Court and Court of Appeals must be treated as state courts

for all purposes,’’ referring inter alia specifically to issues

surrounding Younger v. Harris, 401 U.S. 387 (1971) and

Sullivan v. Murphy, 156 U.S. App. D.C. 28, 478 F.2d 938,

962 (1973) as presenting unresolved questions coneerning

the relationship between the District of Columbia local

courts and the Federal courts in this cireuit.

Thus, a situation-by-situation analysis is appropriate.

For present purposes, it is interesting to note that the U.S.

Court of Appeals for the District of Columbia Cireuit held

in Keyes v. Madsen, 86 U.S. App. D.C. 24, 179 F.2d 40

(1949) that the requirement of certification of cases to the

Attorney General under 28 U.S.C. § 2403° does not extend

to statutes which are restricted to the District of Columbia

and matters of mere local interest (179 F.2d at 48). This

decision, which holds inapplicable to enactments limited to

the District a procedure otherwise required in litigation

which involves the constitutionality of congressionally-en-

5 As Mr. Justice Brennan said in District of Columbia v. Carter,

409 U.S. 418 (1973), the exceptional control of Congress over local

government has rendered the District of Columbia ‘‘an excep-

tional community’’ and truly ‘‘sui generis’’ in our governmental

structure. This unusual position of the District in our federal

system has been apparent since the framers original'y provided

for its government in the Constitution. Under Article I, § 8 cl.

17 Congress was given power ‘‘to exercise exclusive legislation

in all cases whatsoever’’ over the District of Columbia. See

generally, Capital Traction Co. v. Hof, 174 U.S. 1 (1899),

®Such certification is required whenever the constitutionality

of an act affecting the public interest is involved.

ce Penn meneeasd |

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acted statutes, is in my view directly relevant to the ques-

tion of whether the three-judge court requirement of sec-

tion 2283 ought not to be similarly restricted to national

legislation.

The Palmere decision, as well as the Keyes precedent,

reinforce the conclusion that, for purposes of the present

jurisdictional issue, legislation enacte.. by the Congress

for the District should be viewed for what it is, that is, local

legislation, the constitutionality of which may be tested in

the District of Columbia courts according to District of

Columbia procedures. |

The Home Rule legislation enacted by the Congress in

1973 provides a further and strove indication of the con-

gressional intent to divorce many aspects of District of

Columbia governmental authority from the arena of na-

tional governmental bodies. Title I of the Act (P.L. 93-198,

87 stat. 775, Dee. 24, 1973, p. 4) states that the purposes of

the law are to

... grant the inhabitants of the District of Columbia

powers of local self-government; and, to the greatest

extent possible, consistent with the constitutional man-

date, relieve Congress of the burden of legislating upon

essentially local District matters.

It would in my judgment be anomalous and illogical to

conclude that, notwithstanding developments which were

clearly designed to establish a District of Columbia court

system with full powers with respect to local laws, section

2283 has to be read, contrary to its explicit language, as

reserving to the federal courts the sole power to pass upon

the constitutionality of legislation enacted by the Congress

in its capacity as the legislature for the District of Colum-

bia.

Fourth. The purpose underlying the three-judge court

act was to limit single federal court judges from freely

issning injnnetions which mieht interfere with broad state

or federal regulatory schemes. Section 2281 was designed

to relieve the strain in federal-state relations which re-

sulted from a flood of federal court litigation that followed

in the wake of the Supreme Court's decision in Ex parte

Young, 209 U.S. 123 (1908). See 42 Cong. Ree. 4846-59

(1908) ; 45 Cong. Ree. 7258-57 (1910) ; Ammerman, ‘* Three

Judge Courts; See How They Run,’ 52 F.R.D. 293, 295-6

(1971); Hart and Wechsler, The Federal Courts and the

Federal System, 848-55 (1953). Section 2282 was a prod-

uct of the congressional concern over the abandon with

which single federal judges had invalidated national New

Deal legislation. See ‘‘Injunctions in Cases Involving

Acts of Congress,’’ Sen, Doe, Nos, 25-33, 37-39, 41-44, 75th

Cong. Ist Sess. (1937); 81 Cong. Ree, 235-6, 2142-3 (1937) ;

S. Rep. No. 711, 75th Cong. Ist Sess. 3 (1937).

The provisions for three-judge courts, followed by di-

rect and speedy Supreme Court review, were thus deemed

necessary to safeguard broad and vital regulatory laws

from the jeopardy of injunctions issued by single judges.

Outside of that area, these provisions have been narrowly

construed. See Nennedy v. Mendoza-Martinez, 372 U.S.

144, 154 (1963); Phillips v. United States, 312 U.S. 246

(1941); Ex parte Collins, 277 U.S, 565 (1928).

None of the purposes which ¢9ve rise to the enactment

of the three-judge court statutes would be served by con-

struing these acts as applicable to litigation involving the

constitutionality of laws limited solely to the internal af-

fairs of the District of Columbia. Certainly, no national

interest would be jeopardized if the constitutional validity

of a District law dealing with the regulation of massage

parlors’ were litigated in the Superior Court, with a pos-

7 Although in the present instance we are concerned with the

applicability of § 2282 to what in form is a statute, it should be

noted that its companion, section 2281, has been held not to apply

to municipal ordinances but only to state statutes of general ap-

A Ce

sible appeal to the D.C. Court of Appeals, and the ever-

available, ultimate remedy of further review in the U.S,

Supreme Court.*

This Court accordingly holds that it has jurisdiction to

declare Acts of Congress of purely local application un-

constitutional and the power to enjoin their enforcement.

Ill

Before proceeding to the merits of the constitutional

claims, the Court must consider several other preliminary

issues,

plicability. Ev «parte Collins, supra, As Mr. Justice Brandeis

there wrote, ‘section [2281] was intended to embrace a limited

class of cases of special importance and requiring special treatment

in the interest of the public.’ 277 U.S. at 267. In the present

case, this Court is being called upon to enjoin the enforeement of

a section of the D.C. Code which involves the licensing of massage

parlors, a regulatory statute which would more typically take the

form of an ordinance in the normal state statutory scheme. That

the jurisdiction of a three-judge federal court should extend to

such a matter in view of the reluctance of the courts to consider

this type of issue,, simply because the statute in question was en-

acted by Congress, would be contrary to the limited effect given

section 2281 by the courts and the policy of federal noninterference

in matters of purely local concern.

*In addition to a judicial tendency to strictly construe the

statutory requirements of the three-judge Court Act. noted above.

there have been recent attempts in Congress to eliminate the re-

quirement of the three-judge court in cases seeking to enjoin the

enforcement of state or federal laws. See S, Rep. No, 93-206, 98rd

Cong., Ist Sess. (1973); H.R. 3805, 52nd Cong., Ist Sess. (1971) ;

Report of the Proceedings of the Judicial Conference of the United

States, Oct. 29-50, p. 78 (1970); Ammerman, supra at 297. This

distaste for the three-judge concept is based in considerable part

on the burdensome aspects of that scheme and its tendency to

obstruct the federal judicial dockets. A determination that the

constitutional validity of purely local laws is the business of the

local courts is thus consistent with current judicial purposes and

policy.

10a

The District of Columbia has questioned whether Geisha

House, Ine., has standing to bring the instant action, in

view of the fact that the massage parlor statute does not,

in terms, apply to this plaintiff. The explicit prohibition

of section 2311 reaches only ‘any female’? who administers

a massage, not the establishment in which the massage is

applied, Nevertheless, it is clear that Geisha House has

standing, on at least three bases.

First, if a prohibited massage is performed by one of

plaintiff's employees on plaintiff's premises, plaintiff may

he proseeuted as an aider and abettor (Berman y, District

of Columbia, 132 A.2d 147 (D.C. Mun, App. 1957)). See-

ond, if one of plaintiff's masseuses against whom criminal

prosecutions are pending is convicted, the District of Co-

lumbia would have the duty, under section 2311 ‘‘to revoke

the license of the owner or manager of the establishment

.’’ There is no reason why plaintiff should be re-

quired to await and undergo a criminal prosecution or

license revocation as the sole means of seeking relief. Doe

v. Bolton, 410 U.S. 179 (1973); Crossen vy. Breckenridge,

446 F.2d 8323 (6th Cir. 1971); Poe v. Menghini, 539 F.

Supp. 986 (D. Kan. 1972). And third, the injury to plain-

tiff by virtne of the enforcement of this statute would di-

rectly prevent the employment of those persons whom

plaintiff would ordinarily hire and would thus prevent it

from practicing its business in a normal manner. That

kind of relationship has been held in similar cireumstances

to he sufficient to confer the requisite standing on the

owner of a massage parlor. Corey v. City of Dallas, 352

I. Supp. 977 (N.D. Tex. 1972); Valley Health Systems,

Inc. v. City of Racine, 369 F. Supp. 97 (B.D. Wis. 1973) ;

seo also, Trvar v. Raich, 239 U.S. 33 (1915); Eisenstadt v.

Baird, 405 U.S. 488 (1972); Barrows v. Jackson, 346 US.

249 (1955).

The District further suggests that, inasmuch as a crim-

inal prosecution has been instituted against at least one

——

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. lla

of plaintiff’s employees, the issues sought to be litigated

here could and should be raised as matters of defense in

the criminal prosecutions. Accordingly, it is contended,

there is an adequate remedy at law, and equitable relief

is inappropriate. But the short answer is that no criminal

prosecution has been brought against this plaintiff, and it

thus cannot litigate the constitutional issues elsewhere,

Moreover, it is unclear whether these issues will ever be

raised by the defendants in the criminal actions.”

Plaintiff likewise lacks a civil remedy short of the in-

stunt lawsuit. As indicated, svpra, plaintiff stands in

jeopardy of a criminal prosecution and conviction, and it

is axiomatic that this kind of an injury cannot be cured by

an action for damaves. Neither the District nor its agents.

Chief Jerry Wilson and Inspector Robert Dollard, would

be liable in damages for their enforcement of a statute

duly enacted by the Congress even if at the conelusion of

a criminal prosecution it should ultimately turn out that

the law is unconstitutional. See Norton v. McShane. 332

F.2d 855 (Sth Cir. 1964); Lawaghlin v. Garnett, 78 U.S. App.

D.C. 194, 138 F.2d 931 (1943); J.S.K. Enterprises, Ine. v.

City of Lacey, 493 P.2d 1015 (Wash. 1972); Joseph v.

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

The Corporation Counsel also argues that under the

policy of 28 U.S.C. § 2283 and the decision of the Supreme

Court in Younger v. Harris, 401 U.S. 37 (1971), this Court.

acting as a court of equity, is precluded from interfering

with criminal prosecutions. Douglas v. City of Jeannette,

319 U.S. 157 (1948). But the Yeunger decision—assum-

ing that it has application to the Distriet of Columbia®—

prohibits only an interference with pending criminal ac-

—

* At least in the one prosecution presently pending (Crim. No.

48572-74—District of Columbia v. Miller), the issue of the econ-

stitutionality of the statute has not been raised.

™ Pernell vy. Southall Realty, supra at 1726.

l2a

tions, not with criminal prosecutions that may be brought

in the future. Dombrowski v. Pfister, 380 U.S, 479 (1965) ;

Boraas v. Belle Terre, 476 F.2d 806 (2d Cir, 1973); Cole

v. Graybeal, 313 F. Supp. 48 (D. Va. 1970) ; Baines vy. City

of Danville, 837 F.2d 579, 595 (4th Cir. 1964),

Statutes or ordinanees prohibiting the administration

of massage treatment to persons of the opposite sex have

been tested by the courts in a number of states; and they

were determined to be invalid in the vast majority of the

eases, Such enactments were declared unconstitutional or

their enforcement was enjoined by the U.S. Court of Ap-

peals for the Fourth Circuit (Joseph v. Ilouse, 482 F.2d

575 (4th Cir. 1973), rejecting appeal, Joseph v. House, 3538

M. Supp. 367 (E.D, Va. 1973)); the US District Court for

the Northern District of Texas (Corey v. City of Dallas, 352

F. Supp. 977 (N.D. Tex. 1972)); the Court of Appeals

for the State of Washington (J.S.K Enterprises v City

of Leven, 492 P.2d 600 (Wash. 1972)); the U.S. District

Court for the Eastern District of Wisconsin (Valley Health

Sustems v. City of Racine, 369 F. Supp. 97 (E.D. Wis.

1973)); the Supreme Court of North Carolina (Cheek v.

City of Charlotte, 160 S.K, 2d 18 (N.C. 1968)); the US.

District Court for the Eastern District of Tennessee

(Cianciolo v. City of Knoxville, Civil Action 8485 (E.D.

Tenn. 1974) ).

Some years ago, several courts upheld the constitution-

ality of such enactments, including the California District

Court of Appeals (Ex parte Maki, 133 P.2d 64 (Cal.

1943)): the Court of Civil Appeals of Texas (Patterson

v. City of Dallas, 355 SW. 2d 838 (Tex. 1962)), and the

Supreme Court of Virginia (Nisley v. City of Falls Church,

187 S.E. 2d 168 (Va. 1972, but these early holdings have

since either been overturned or substantially impaired by

Jina

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Tia

subsequent decisions.'' There are currently but two cases

in Which the validity of massage parlor ordinances has

been unequivocally upheld. Smith v. Keator, 203 SK. 2d

411 (N.C, Ct. App. 1974); Rubenstein v. Township of

Cherry Hill, Case No. M-236 (N.J. Sup. Ct. 1974),

Government has the authority to treat different classes

of persons in different ways, in such areas as public health,

safety, and morality. Reed vy, Reed, 404 U.S. 71 (1971).

However, this governmental power is circumscribed by the

Equal Protection Clause,’* and when a challenge hased

upon the classification is made under that Clause, a court

is required to consider ‘‘the facts and circumstances be-

hind the law, the interests which the State claims to be

protecting and the interest of those who are disadvantaged

by the classification’? Williams v. Rhodes, 393 U.S. 28

(1968); accord, Nramer v. Union Free School District, 395

U.S. 621, 626 (1969).

More specifically, depending upon the interest affected,

a classification challenged as a denial of equal protection

is evaluated by one of two standards. If the classification

impinges upon what has come to be recognized as a funda-

mental right, or if the class it creates is one that is re-

garded as inherently suspect (such as race or national

origin), then that classification is subjected to strict seru-

tiny, and the constitutionality of the legislative enactment

" Patterson and a line of Tevas cases were effectively overruled

by Corey v. City of Dallas, 352 F. Sopp. 977 (ND. Tex 1972). The

ordinance upheld in Wisley vy. Falls Church, supra, was subse-

quently declared invalid by the federal district court for the

Eastern District of Virginia ‘tn Joseph v. louse, supra. The legis-

lative scheme in Maki was overruled by the California Supreme

Court in Laneaster vo Municipal Court for Beverly Hills, J.D. 100

Cal. Rptr. 609, 494 P.td 681 (Cal. Sup. Ct. 1972).

12 That Clause has been incorporated into the Fifth Amend-

ment for Distriet of Columbia purposes. Bolling v. Sharpe, 32

U.S. 497 (1954); Fronticra vo Richardson, 411 US. 677 (1973);

Schneider v. Rusk, 377 US. 163 (1964).

l4a

in which it is embodied will be sustained only if the dis-

tinctions made are necessary to promote a compelling state

interest. Graham vy. Richardson, 403 U.S. 365 (1971);

Kramer vy. Union Free School District, supra; Shapiro v.

Thompson, 394 U.S. 618 (1969) ; Carrington v. Rash, 380

U.S. 89 (1965); Loving v. Virginia, 388 U.S. 1 (1967);

Oyama vy. California, 332 U.S 635 (1948) ; Skinner v. Okla-

homa. 316 U.S. 535 (1942). On the other hand, if the classi-

fication does not affect a fundamental right or create a

suspect class, it is sustained as valid if it has some rational

relationship to a legitimate governmental interest or pur-

pose. McGowan Vv. Maryland, 366 U.S, 420 (1961); Jef-

ferson v. Hackney, 406 U.S, 535 (1972); Richardson v

Belcher, 404 U.S. 78 (1971): Dandridge vy. Williams, 897

U.S. 471 (1971); Flemming v. Nestor, 363 U.S 608 (1960).

In the instant case we are confronted with a statute

which was enacted in 1932 as part of a general licensing

and revenue measure. There is nothing whatever in the

legislative history of this law which characterizes it as

anything but a measure to raise revenue to provide for,

among other things, the cost of regulating various licensed

businesses in the District of Columbia. See Sen. Rept.

No. 867, 724 Cong., Ist Sess., to accompany H.R. 11688;

H.Rept, No 1385, 72d Cong., Ist Sess. (4932). Specifically,

there is nothing in the legislative his‘ory, whether by

words or implication, to suggest the slightest congressional

purpose to employ this enactment as a tool to enhance

public morality or to curb immorality.

As will be diseussed at pp. 22-25, infra, significant in-

terests and possibly fundamental rights of the plaintiff are

adversely affected by this statute.” It is obvious that a

13 Jn addition to the interests discussed below, there is also the

right to conduct a business free from governmental interference.

This right has been termed basic, and it may be invaded oniy upon

15a

mere purpose to raise revenue cannot overcome these in-

terests and rights (see Speiser v. Randall, 351 U.S, 513

(1958)), particularly since the revenue-raising objective

could be achieved without the prohibition on massages on

persons of the opposite sex. If Congress is to be taken at

its expressed word—-that revenue is what it had in mind—

its objective could be achieved without injury to protected

interests by permitting the license fee provision in section

2511" to stand and by striking down those portions of the

law which regulaie and impair the rights and interests

of those engaged in the massage parlor business or em-

ployed therein.”

The Corporation Counsel argues that, although Congress

never indicated that section 2311 was anything but a rev-

enue measure, the Court should assume that the regulation

of public morality was the purpose of the legislation."

Generally, the courts wil! not look behind statutory en.

actments to aseertain a hidden motive or design. How-

a showing that the governmental interest is superior to the rights

of the persons adversely affected by the legislation. Vew Stats

Tee Co. v. Liebman, 285 U.S. 262 (1932); Truar v. Raich, 239 U.S.

33 (1915). With respect specificaliy to the business of operating

a massage parlor, see Corey v. City of Dallas, supra.

M4**Qwners or managers of massage establishments and turkish,

Russian or medicated baths shall pay a license fee of $5.00 per

annum.’’

‘5 The status of the masseuses working in Geisha House is not

wholly clear. According to the stipulated testimony, they are

employees for some purposes and independent contractors for

others.

' The Corporation Counsel may be relying upon language in

the Senate Committee Report (Sen. Rept. No. S67, supra. at 5),

which states that ‘*. . .in a few instances tue license is required

for regulatory purposes. In other cases, the tax is fixed as com-

pensation for the use of public space. But for the most part, the

license taxes imposed are based solely upon the cost of the re-

quired inspections.”"" This might be said to imply a regulatory

purpose even as to section 2311.

l6a

ever, the Court has, of course, a duty to seek to sustain

the constitutionality of legislation if it is possible to do so,

See United States v. Vuitch, 402 U.S. 62 (1971); Fleming

v. Nestor, supra; United States v. Harriss, 547 US, 612

(1954) ; United States v. C.1.0, 335 US. 106 (1948). More-

over, in the present case, it is simply impossible to justify

or even to explain the statutory classification on purely

revenue-raising or licensing grounds. That being the case,

it is in my opinion within the Court’s prerogative and its

duty to ascribe to the legislature the most reasonable and

logical purpose that can be deduced from the language

of the statute.

For these reasons, it will be assumed, for the purpose of

the discussion which follows, (1) that such an undisclosed

congressional motive or purpose does exist, and (2) that

the prohibition on massages on persons of the opposite sex

in section 2311 was designed primarily to regulate or to

prohibit immoral behavior.

An assumption that the law was designed to eurb im-

moral activity would ascribe to the statute a constitution-

ally permissible purpose. It is well settled that a State,

or in the ease of the District of Columbia, the Congress

acting as a state legislature, has the power to enact laws

which regulate, proscribe, or punish certain immoral be-

havior, See California v. LaRue, 409 U.S. 109 (1972) ;

Berman vy. Parker, 348 U.S. 26 (1954); Corey v. City of

Dallas, supra; 17 A.L.R. 2d 1188.

That being so, the next question becomes whether the

statutory classification is relevant to the statutory pur-

pose. To put it another way, is the classification reason-

able in light of its purpose?

In the instant ease, the classification is based solely on

sex, Until fairly recently it had been taken as established

that sex constitutes a valid basis for classification for most

ee ee EEE mer ee

17a

purposes.’ However, in recent years, the courts have be-

gun to move from a posture of upholding classifications

based on sex if nothing more was shown than a rational

relation to a legitimate governmental interest, to regard-

ing such classifications as suspect and hence sustainable

only if a compelling state interest could be demonstrated.

In Reed v. Reed, 404 U.S. 71 (1971), the Court consid-

ered and struck down as unconstitutional an Idaho law

which gave preference to males among the various classes

of persons eligible to administer a decedent’s estate, in the

face of a claim that the distinction was permissible in view

of the State’s objective to reduce the workload of the

courts by eliminating consideration of females. Two years

later, in Frontiero v, Richardson, 411 U.S. 677 (1973), the

Court declared unconstitutional four laws which provided

that wives of servicemen were automatically to be consid-

ered dependents for certain purposes while husbands of

servicewomen received the benefits involved only if depend-

ency could actually be proved. Mr. Justice Brennan, in an

opinion in which Justices Douglas, White and Marshall

joined, concluded that classification on the basis of sex

was inherently suspect, just as classification on the basis

of race, alienage, and national origin, and that accordingly

17 Most of the earlier cases did not employ an equal protection

analysis but still upheld statutory classifications on other consti-

tutional and social grounds. Among these eases are: Bradwell v.

Illinois, 83 U.S. 130, (1872), upholding the exclusion of women

from the legal profession ; Minor v. Happersett, 88 U.S, 162 (1874),

denying women the right to vote; Muller v. Oregon, 208 U.S. 412

(1908), sustaining employment legislation applicable only to

women, One of the first cases to use the equal protection ap-

proach was Gocsaert vy. Cleary, 335 U.S. 464 (1948), upholding

a state statute excluding women from bartending professions un-

less they were ‘‘the wife or daughter of the male owner’; see

also Hoyt v. Florida, 368 U.S. 57 (1961), upholding a Florida

statute which excluded women from jury service unless they vol-

untarily applied.

18a

any such classification had to be subjected to striet judicial

scrutiny. In reaching this decision, the four Justices re-

lied upon the earlier Reed decision. Also relying upon

Reed, but for the conclusion that it did not designate clas-

sifieation based on sex as inherently suspect, were Justices

Powell and Blackmun and the Chief Justice. Justice Stew-

art coneurred in the result, relying upon the proposition

not appear to be a conclusive Supreme Court determina-

tion of the constitutional status of classifications based on

that the statutes before the Court worked an ‘*invidious

discrimination in violation of the Constitution’? (411 U.S.

at 691), Justice Rehnquist dissented.

In view of these differing views in Frontiero, there does

not appear to be a conclusive Supreme Court determi-

nation of the constitutional status of classifications based

on sex.'® There is likewise no binding case law in the Dis-

trict of Columbia. at least not sinee Frontiero, Thus, this

Court would appear to be as free as the various federal

district courts—--whieck are widely split on the issue’’—to

imake its ¢° 41 judgment as to the current state of law in

this area.

{n my view, the basis for any judgment in this area must

be the proposition in Mr. Justice Brennan’s plurality opin-

iS 'The issue has not been clarified either by Kahn v. Shevin, 94

S(t. 1734 (1974) the most recent Supreme Court case in this

field (which was apparently decided on considerations of tax

poliey }.

19 Some of these courts have applied the ‘rational relationship

to a legitimate state objective’’ test (Edwards vy. Schlesinger, Civil

Aetion 1825-73 (D.C.D.C. 1974); White v. Flemming, 3874 F.Supp.

267 (ELD. Wis. 1974)), United States v. Offord, 373 F.Supp. 1117

(ELD. Wis. 1974)). while others have followed Justice Brennan's

striet judicial scrutiny standard (Ballard v. Laird, 360 F. Supp.

643 (SD. Cal. 1973). Wiesenfelder v. Sceretary, 367 F.Supp. 981

(DNJ. 1973), Andrews vo Drew Municipal Separate Nehool

307 A. 2d 78 (NL. 1973)).

19a

ion in Frontiere, supra (411 U.S. at 686) that ‘‘since sex,

like race and national origin, is an immutable character-

istie determined solely by the accident of birth, the impvust-

tion of special disabilities upon the member of a particular

sex because of their sex would seem to violate the basic

concept of our system that legal burdens should bear some

relationship to individual responsibility... .”’

The genius of our system of government is its ability

to adapt, however slowly, to changing societal values and

mores. A large part of the reason why our legislatures

and courts are shedding most of their earlier notions of

women’s role in society is that these notions do not any

ionger conform to today’s realities. There is no sweeping

generalization that can be involved to describe the role of

women in society any more than men as a group can be

‘ategorized. In each ease we are dealing with whole pop-

ulations of fairly diverse persons, Reed and Frontiero

simply represent recognitions of this fact, and of the in-

evitable consequence that sex-based classifications, because

of their inherent irrationality, must be regarded as suspect.

It is also of significance that the Congress, by way of the

Civil Rights Act of 1964, has laid dewn a broad national

policy against discrimination in employment on account of

sex. To be sure, that statute does not in terms apply to

this plaintiff because Geisha House, Inc. does not now em-

ploy as many as fifteen persons (42 U.S.C. § 2000(e) (b).

Nevertheless, the national policy represented by Title VII

of that Act (42 U.S.C. § 2000(e) et seq.) is evidence of a

congressional purpose to establish freedom from diserim-

ination in employment on account of sex as a fundamental

_ of citizenship. Cf. Joseph v. House, supra; Weeks

» So. Bell Tel. and Tel. Co., 408 F.2d 228 (Sth Cir. 1969) ;

Bowie v. Colgate, 416 F.2d 711 (7th Cir. 1969). While

congressional policy does not necessarily establish a right

as basic in the constitutional sense, it does constitute per-

suasive evidence of fundamental values in an area where

—_—

20a

the question of what is and what is not basic and thus

protected necessarily shifts with the changing values of

successive generations. Cf. Frontiero v. Rochardson, supra

(411 U.S. at 687); Oregon v. Mitchell, 400 U.S. 1}2 (1970) ;

Katzenbach v. Morgan, 384 U.S. 641 (1966).

For these reasons, this Court concludes that freedom

from discrimination on account of sex*’ constitutes a fun-

damental right and that classifications based on sex are

inherently suspect. Judged by that standard, and in the

absence of any compelling governmental interest, the clas-

sification effected by section 2311 is clearly invalid.

Vil

In any event, it is clear that, even if a suspect class is

not created by section 2311, the statute is invalid for, on

two separate grounds, it must be held not to bear a rational

relationship to a legitimate governmental purpose and

therefore to violate the Equal Protection Clause.

The statute makes it unlawful for a person to administer

massage treatment to a person of the opposite sex ‘‘in any

establishment licensed under this section.’? Curiously, the

law does not extend the same prohibition to massages ad-

ministered in places not licensed under section 2311 or in-

deed to anyone else involved with massages in the District

of Columbia. Even more curicusly, as the Corporation

Counsel candidly admitted, individuals need not be licensed

“{t has been suggested that no discrimination on account of

sex is involved at all because, while women are forbidden to per-

form massages on men, men are equally forbidden to perform

massages on women. As several courts have noted (J.S.K. Enter-

prises v. City of Lacey, supra at 605; Cf. Ex parte Mak, supra

at G7) that line of reasoning does not differ significantly from the

rationale used to justify the separate-but-equal doctrine of Plessy

v. Ferguson, 163 U.S. 537 (1896). At least in justification for

differentiation between the sexes, unless such differentiation is com-

pellingly necessary. See Loving Vv. Virginia, 338 U.S. 1, 8 (1967).

nies

21a

under section 2311 even if they administer massages, and

even if the person performing the massage and the one

receiving the treatment are of the opposite sex. An opin-

ion rendered by Judge Richmond Keech, when he was

Corporation Counsel, declared that section 2311

... applies only to massage establishments and not

to itinerant masseurs. It is therefore the opinion of

this office that a masseur or masseuse who does not

operate a massage establishment does not need a li-

cense under this Act and that the restrictions placed

upon massaging those of the epposite sex under this

Act apply only to establishments licenses thereunder

(Opinion of Richmond B. Keech, Corporation Coun-

sel, to the Commissioners, dated August 15, 1941).

Following the rationale of the opinion of the Corpora-

tion Counsel, the District, in its Memorandum in Opposi-

tion to Motion for a Preliminary Injunction in this case,

conceded that (p.6), ‘‘it is not illegal for a member of one

sex to massage a member of the opposite sex exeept in

husinesses licensed under Section 47-2311. ... [and] it is

not unlawful for a corpo ation to be incorporated under

the laws of the District of Columbia to give bisexual mas-

sages....”’

Thus, we are here faced with the anomaly that a person

who performs a massage on an individual of the opposite

sex in an establishment licensed under section 2311 is

thereby automatically held to have committed a criminal

offense, while the same person performing the same mas-

sage on the same individual outside of an establishment so

licensed is regarded as violating no law. If there is a

rational basis for this distinction, it is not apparent from

the legislative history of the statute nor has it been pointed

out by the Corporation Counsel. If section 2311 is de-

signed to curb immorality—as the District argues—it de-

feats its own purpose by permitting performance of the

29a

identical conduct anywhere and everywhere in the District

of Columbia except in establishments licensed under sec-

tion 2511. That kind of distinction illuminates the under-

inclusive character of the statutory prohibition (Cf. Rin-

aidt vy. Yeager, 384 U.S. 305, 3808 (1966); Carrington v.

Rash, 380 U.S. 89, 95 (1965)) and is utterly irrational.

‘In Cheek v. City of Charlotte, 160 S.E. 2d 18 (N.C. 1968),

the Supreme Court of North Carolina was confronted with

an ordinance which prohibited the massage of persons of

the opposite sex, but exempted, among establishments,

hospitals, doctor’s offices, barber shops, the YMCA, and

the YWCA. Striking down this ordinance, the Court stated

in language directly apposite here (160 S.E. 2d at 23):

Applying ... fundamental rules of constitutional law

... it is clear that the ordinance in suit cannot with-

stand plaintiff’s attack, There is no reasonable ground

for putting |the exem:.red establishments] in a sep-

arate classification from massage parlors, health sa-

lons, or physical culture studios. ...

Obviously, the city council felt that the activities

which the ordinance seeks to eliminate were not then

being carried on in the exempted establishments. Not-

withstanding, as presently written, the ordinance pro-

hibits the proprietors and employees of a massage

parlor from doing acts which ean be done with im-

punity under similar circumstances in... the other

exempted places of business Such favoritism cannot

be sustained

The District of Columbia statute differs from the North

Carolina ordinance only in that there the exemptions were

spelled out in so many words while our statute provides

for exemptions by omission from the prohibition. That

is a distinction without a difference. Indeed, by narrowly

defining the prohibited class and by leaving wholly un-

touched, undefined, or unregulated all others similarly

23a

situated but for the fact that they lack a license, the Dis-

trict of Columbia law is, if anything, even more obnoxious

to equal protection principles.

Vill

Section 2311 is lacking a rational basis related to a legiti-

mate governmental purpose for yet another reason.

Certainly, as already noted, the curbing of immorality is

a valid governmental objective. See p. 21, supra. But the

problem with this law is that it punishes not actual acts of

immorality but the mere possibility that such acts may be

committed in the future.

In District of Columbia v. Ricks, (Gen. Sess. 1966, Greene,

J.) this Court was confronted with the constitutional valid-

ity of D.C. Code § 22-2302, the District’s vagrancy statute.

It was there argued by the government on behalf of consti-

tutionality that it was reasonable to presume that those in

the categories described in the vagrancy law would be more

likely t’ ~ ethers to commit offenses, and that it was there-

fore a reasonable exercise of legislative power to provide

for their arrest and punishment when they were in a posi-

tion of opportunity to carry out this presumed intention

(slip opinion, pp. 8-9).*? This Court held that this approach

in effect amounted to a form of preventive conviction im-

posed upon those who, although they had committed no

overt criminal act, appeared to be more likely than the gen-

eral public to commit certain crimes, and it rejected the

concept with these words (slip opinion, p. 8)

. | do not believe that our constitutional system—

with its requirements of due process, presumption of

*! The basic theory on which the government proceeded in that

case was that, as the prosecutor testified, ‘‘you certainly don’t

have to wait until a person goes in and engages in the act of

prostitution before you can see fit to arrest that person for being

a vagrant;”’ in the prosecution’s views it was enough if there

was probable cause to believe that the person would commit a

crime (slip opinion, p. 3).

24a

innocence, and proof beyond a reasonable doubt—is so

elastic as to countenance convictions based on suspi-

cion. Yet, when examined in the light of the cold reali-

ties and the logic of its only meaningful application,

that is what the vagrancy statute is—a law for convic-

tions based not on proof of criminal acts but on the

belief, reasonable or otherwise, that these might be

committed.

In my view, this reasoning, which was in essence sus-

stained by the U.S. Court of Appeals,** applies equally to

the statute under consideration here, and serves to invali-

date that statute on equal protection grounds.” As the

Court of Appeals of the State of Washington said in J.S.K.

Enterprises, supra (492 P.2d at 607),

Massage is one of the oldest forms of therapy. When

properly administered in an appropriate case, it can be

one of the most useful forms of therapy. To deny all

inassagists the right te practice their profession upon

both sexes because some individuals utilize a sauna

% massage parlor as a subterfuge to perform lewd acts

for compensation would require stereotyping of the

worst kind. It is saying, in effect, that because some

women perform lewd acts in sauna parlors that all

massagists can be judged to be lewd if given the op-

portunity and therefore they cannot massage members

of the opposite sex. Not only is this discrimination as

22 The U.S. Court of Appeals declared the District’s vagrancy

statute unconsiitutional, largely on grounds of vagueness; but it

also sustained the theory of this Court (Ricks y. District ef Co-

lumbia, 134 U.S. App. D.C. 201, 214, 414 F.2d 1097 (1968)). The

U.S. Supreme Court affirmed the unconstitutionality of vagraney

laws in Papachristou v. City of Jacksonville, 405 U.S. 156 (1970).

23 That invalidity may also be expressed as being predicated on

overbreadth under the Due Process Clause. See Ctanciolo v. City

of Knoxville, supra.

25a

to both sexes of massagists but it wonld deny the peo-

ple who need their services the opportunity to select

the best qualified massagist available to them.

Similarly, the Court said in Cianciolo v. City of Knovr-

vule, supra at 9, ‘‘the ordinance under consideration .. .

seeks to protect the community’s sense of propriety, vet

the ordinance’s weakness is ... [that] it fails to recognize

that not all female masseuses will abuse a historically

legitimate occupation when permitted to massage clients

of the opposite sex, nor will male masseurs commit lewd

acts when they massage patrons of the opposite sex.”’

Here, the District has ample means with which to deal

with prostitution and other forms of sexual misconduct.

Soliciting for the purpose of prostitution is an offence un-

der D.C. Code § 22-2701; inducing a female to become a

prostitute is an offense under D.C. Code § 22-2705: pro-

curing is an offense under D.C. Code $§ 22-2707, 2710, 2711;

operating a house of prostitution is an offense under D.C.

Code § 22-2712; keeping a disorderly house is an offense

under D.C. Code § 22-2722. D.C. Code § 22-2713 provides

an additional and potent safeguard by declaring premises

occupied for lewdness, assignation, or prostitution to be a

nuisance and subject to forfeiture.

If these criminal and civil penalties are not sufficient to

guarantee that the establishment operated by this plaintif?

will be maintained and operated in a manner so as not to

offend public morals, the Congress and the City Council

have it within their power to enact other legislation which

will further safeguard that those persons operating mas-

sage parlors and those employed therein will not engage in

activities inimical to the public interest. For example,

these legislative bodies might exelude from operation and

employment persons with certain types of criminal ree-

ords; require the licensing of individual masseuses; regu-

26a

late the manner of giving massages; regulate the dress of

customers; prohibit massages in particular areas of the

establishment: regulate the hours of operation; and pro-

vide for periodic inspection.”

This Court. no more than the Distriet government or the

Metropolitan Police Department, has any way of knowing

whether the activities engaged in on the premises of Geisha

House will be harmless or immoral, helpful to the physical

and emotional well-being of its patrons or a cover for ac-

tivities otherwise forbidden by law. There has been no

proof one way or the other. The fundamental question,

then, is whether the government may proceed to convict

citizens and close the doors of business establishments on

the mere suspicion that they might engage in activities

inimieal to public morality. In my judgment, government,

with its vast powers, must leave people alone, unless it has

evidence that they actually committed acts that may validly

be prohibited in the exercise of legitimate governmental

authority. But it may not, consistently with the Constitu-

tion, intervene in private activities upon the supposition

that the participants, somehow, some time, might engage

in criminal conduct.

The statute under consideration here, and the acts of

these defendants, do not measure up under that standard.

If the Distriet finds that immoral and illegal activities are

setually occurring on the premises of this plaintiff, it has

on arsenal of weapons at its disposal with which to combat

and suppress them, from a wide range of criminal laws

(which would subject any participant in such activities to

penalties of imprisonment) to a forfeiture of the very

24 The District of Coiumbia presently requires that all applicants

for licenses for massage establishments have fingerprints taken in

accordance with Police Regulation Article 34, section 1. Apph-

cants are also required to submit a Police Department 70 form,

which is a record of arrest provided by the Central Records Divi-

sion of the Metropolitan Police Department.

27a

premises of this plaintiff. But speculation and conjecture

will not suffice.

D.C. Code § 47-2311 is hereby declared unconstitutional,

and defendants are permanently enjoined from enforcing

that statute.”

Haron H. Greene

Chief Jud

September 25, 1974 pong

The following provisions of section 2311, which are not affected

by the foregoing analysis and do not violate the Equal Protection

a continue to be valid in accordance with D.C. Code 47-

2349: .

Owners or managers of massage establishments and Turkish

Russian, or medicated baths shall pay a license fee of £5

per annum. No license shall be issued under this section

without the approval of the major and superintendent of

police .... Any person violating the provisions of this

section shall, upon conviction, be punished as hereinafter

provided in this chapter; and, in addition to such penalty

it shall be the duty of the Commissioner of the District

of Columbia to revoke the license of the owner or manager

of the establishment wherein the provisions of this section

shall have been violated.

28a

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 9020

Mavrice J. Cunurane, et at., Appellants,

te1sua House, Inc., Appellee.

Appeal from the Superior Court of the

iistriet of Columbia

(Argued October 16, 1975 Decided March 22, 1976)

(Judgment entered March 22, 1976)

David P. Sutton, Assistant Corporation Counsel, with

whom C. Frencis Murphy, Corporation Counsel at the time

the brief was filed, Lowis P. Robbins, Acting Corporation

Counsel, and Richard W. Barton, Assistant Corporation

Counsel, were on the brief, for appellants.

Gloun R. Graves for appellee.

Before Kenry, Gatnacuer and NepeKker, Associate

Judges,

GALLAGHER, .Lssor iate Judae: This was an action for

declaratory judgment and injunctive relief against the

Chief of Police and his subordinate. The plaintiff appellee,

(ieisha House, is the operator of a massage establishment

a a | le .

(commonly referred to as a ‘massage parlor’’),’ which is

licensed under D.C. Code 1973, § 47-2511. In pertinent part

this seetion reads as follows:

_.. It shall be unlawful for any female to give or ad-

minister massage treatment or any bath to any person

'Varions prices are listed for Geisha House, Odes ** Basie

Massave 825.00; *' Bikini Massave’’—$30.00; ‘‘ Negligee Mas-

save’ '—$30.00; ‘Use of Photography Studio" —$10.00. Exhibit

1(B) to appellants’ motion for reconsideration submitted to the

trial court.

29a

of the male sex, or for any person of the male sex to

give or administer massage treatment or any bath to

any person of the female sex, in any establishment

licensed under this seetion. Any person violating the

provisions of this section shall, upon conviction, be

punished as hereinafter provided in this chapter; and,

in addition to such penalty, it shall be the duty of the

Commissioner of the District of Columbia to revoke

the lieense of the owner or manager of the establish-

ment wherein the provisions of this seetion shall have

been violated.!

Arrests had been made previously of three female em-

ployees of Geisha House for violations of that eode pro-

vision.” The trial court permanently enjoined enforcement

of the statutory provision involved as being violative of

the rights to due process and equal protection of the law.’

There are five issues proposed on appeal :?

(1) Whether this case is controlled by certain dismissals

by the Supreme Court of state court appeals for want of a

substantial federal question.

_—————

* Punishment is imprisonment for not more than 90 days or

a fine of not more than $300. D.C. Code 1973. § 47-2547.

* There is involved here a criminal statute not a zoning law

or an «administrative regulatory statute. As to zoning and

administrative regulation, there could scarcely be any serious

question about the validity of a reasonable use of those legisla-

tive avenues in relation to the community problem with ‘* massage

parlors. ”’

*The equal protection concept is incorporated into the Fifth

Amendment where the District of Columbia is concerned. Bolling

v. Sharpe, 347 US. 497, 74 SoCt. 699, O8 LIEd. sS4 (1954).

* Thetrial court also decided that it has the jurisdiction to de-

clare Acts of Congress of purely local application unconstitutional

and the power te enjoin their enforcement. This holding is not

questioned on appeal.

30a

(2) Whether the statute infringes on the fundamental

constitutional right to pursue a legitimate occupation, and

such infringement is not warranted by a sufficient govern-

mental interest.

(3) Does the statute ereate a gender-based distinction

(between masseurs and masseuses) which is constitution-

ally ‘‘suspect’? and not justified by any compelling govern-

iuental interest.

(4) Is the statute an impermissible ‘‘ prophylaxis’? which

creates an irrebuttable presumption that cross-sexual mas-

save on licensed premises will lead to criminal activity.

(5) Does the statute discriminate invidiously as it pro-

scribes cross-sexual massage in licensed establishments but

not clsewhere in the city, e.g., itinerant masseurs and mas-

scuses plying their trade in hotels.

These questions have been disposed of in appellants’ fa-

vor by recent Supreme Court action.

Preliminarily, it is necessary to recognize it is the law

that a dismissal of an appeal by the Supreme Court for

want of a substantial federal question is an adjudication

on the merits of the questions there presented. Hicks vy.

Miranda, — U.S. —, 95 S.Ct. 2281, — L.Ed.2d — (1975).

Consequently, this leaves for us a comparison of the issues

presented here with issues recently necessarily decided as

a matter of law by the Supreme Court because of dismis-

sals for want of substantial federal questions. If the issues

here were for all practical purposes previously presented

to the Supreme Court in those cases and consequently dis-

posed of there, this would leave little for us in deciding

this case.

In several cases where the Supreme Court has dismissed

for want of a substantial federal question the jurisdictional

statements presented to the Court contained between them

all the issues we have here; see, e.g., Smith v. Keator, 419

3la

U.S. 1043, 95 S.Ct. 613, 42 L. Ed. 2d 636 (1974) * (Exhibit

A to appellants’ motion for summary reversal in the in-

stant case), Rubenstein v. Cherry Hill, 417 U.S. 963, 94

S.Ct. 3165, 41 L. Ed. 2d 1136 (1974) 7 (Exhibit C to appel-

lants’ inmotion for stuimary reversal in the instant case),

and Kisley v. City of Falls Church, 499 U.S. 907, 93 S.Ct.

237, 34 L. Ed. 2d 169 (1972).*

Moreover, in Colorado Springs Amusements, Ltd. v.

Pizzo, 524 F.2d 571 (2d Cir. 1975), petition for cert. filed,

44 US.L.W. 2428 (U.S. Jan. 14, 1976) (No. 75-999), the

court was confronted with a section of the Philadelphia

code * which provides to the same effect as the statute we

have under consideration. Upon the basis of the Supreme

Court’s dismissals for want of a substantial federal ques-

tion in Smith v. Keator, supra, Rubenstein vy. Cherry Hill,

supra, and Kisley v. City of Falls Church, supra, the court

reversed the trial court’s holding that the statute was un-

constitutional. In /oagge v. Johnson, 44 U.S.L.W. 2121,

— F.2d — (4th Cir. 1975), petition for cert. filed, 44 US.

L.W. 3431 (U.S. Dee. 31, 1975) (No. 75-927), that cirenit

court followed the very same course when confronted with

a similar statute pertaining to ‘*massage parlors.’? ”

Since the issues here presented are the same, the Su-

preme Court’s actions in dismissing for want of a substan-

6285 N.C. 530, 206 S.E.2d 203 (1974).

* No. M-236, unreported, N.J. (Jan. 29, 1974).

“212 Va. 693, 187 S.E.2d 168 (1972).

* Section 9-610(4), which provides :

Den 1 M '

Prohibited Conduct. No person employed or engaged in the

business of a masseur or masseuse shall treat a person of the

opposite sex,

"While it is not pressed, appellee also contends that the stat-

ute conflicts with Title 7 of the Civil Rights Act 42 U.S.C. 2000

e-2(a)(1) & (2) and 2000 e-7. This contention was also made

in Rubenstein vo Cherry Hill, supra, and the Supreme Court in

that case dismissed for want of a substantial federal question.

«.

32a

tial federal question are, of course, equally binding upon

us. This disposes of the questions presented on the merits

and requires a reversal of the jadgment entered in the trial

court.”

Reversed and remanded with imstruc-

tions to dismiss the complaint.”

' We might comment, in passing, that, contrary to the position

of appellee, the Supreme Court has not vet held that classificatior

based upon sex is inherently suspect in every circumstance. Nee

e.q., Stanton Vv. Stanion, 421 US. 7, 95 S.Ct. 1373 — L. Ed. 2d -

(1975)

If the issues raised by Gieisha Tlouse were open to us for

consideration in assessing constitutionally the reasonableness of the

exercise of police power in enacting this statute dealing with

cross-seXual massage parlors, we would deem it appropriate to

bear in mind the oft repeated observation that an appellate court

*" ed not he blind to what all others know.’ Burr Vv. NLRFB, 321

F 2d 612, 624 (Sth Cir. 1963).

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.