Colorado Springs Amusements, Ltd v. Rizzo

• Decision Date: 06 July 1976
• Docket Number: No. 75-999,75-999
• Citation: 49 L.Ed.2d 1222,96 S.Ct. 3228,428 U.S. 913
• Parties: COLORADO SPRINGS AMUSEMENTS, LTD., etc., et al. v. Frank L. RIZZO, Mayor of Philadelphia, et al
• Court: U.S. Supreme Court

49 L.Ed.2d 1222

96 S.Ct. 3228

428 U.S. 913

COLORADO SPRINGS AMUSEMENTS, LTD., etc., et al.

v Frank L. RIZZO, Mayor of Philadelphia, et al.

No. 75-999.

Supreme Court of the United States

July 6, 1976

On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice BRENNAN, dissenting.

We depreciate the precedential weight of summary dispositions in our decisional process, expressly holding in Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), that such dispositions 'are not of the same precedential value as would be an opinion of this Court treating the question on the merits.' I would not require district courts, courts of appeals, and state courts to ascribe any greater precedential weight to summary dispositions than this Court does. Accordingly, I did not join the holding in Hicks v. Miranda, 422 U.S. 332, 344-345, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), that 'the lower courts are bound by summary decisions by this Court,' which requires state and lower federal courts to treat our summary dispositions of appeals as conclusive precedents regarding constitutional challenges to like state statutes or ordinances.

The Court of Appeals in this cace conscientiously followed the procedure mandated by Hicks. Faced with a claim that three appeals from state courts that had been dismissed by this Court 'for want of a substantial federal question' compelled rejection of petitioners' contentions that the Philadelphia ordinance in question violated the Federal Constitution,¹ the Court of Appeals compared in detail the constitutional issues presented here and those presented in the jurisdictional statements filed in this Court in the three earlier cases. 524 F.2d, at 576. Hicks makes such analysis obligatory as a condition to reliance on a summary disposition. 422 U.S., at 345 n. 14, 95 S.Ct. 2281.² Completion of this process satisfied the Court of Appeals that one or more of the earlier jurisdictional statements had presented to this Court constitutional claims addressed to massage parlor ordinances, like those addressed by petitioners to the Philadelphia ordinance, 'based upon equal, but reprehensible, treatment of both sexes; an invidiously discriminatory sexbased classification; an irrational exception in the ordinance for massage treatments given under the direction of a medical practitioner; unreasonable abridgement of the right to pursue a legitimate livelihood; and the irrebuttable presumption doctrine.' 524 F.2d, at 576 (footnotes omitted). Accordingly, the Court of Appeals, without expressing its own views on the merits of the constitutional contentions, but in compliance with the holding of Hicks, decided the constitutional questions adversely to petitioners solely and squarely upon the authority of Smith v. Keator, 419 U.S. 1043, 95 S.Ct. 613, 42 L.Ed.2d 636 (1974), dismissing for want of a substantial federal question 285 N.C. 530, 206 S.E.2d 203; Rubenstein v. Cherry Hill, 417 U.S. 963, 94 S.Ct. 3165, 41 L.Ed.2d 1136 (1974), dismissing for want of a substantial federal question No. 10,027 (N.J.Sup.Ct.) (unreported); and Kisley v. City of Falls Church, 409 U.S. 907, 93 S.Ct. 237, 34 L.Ed.2d 169 (1972), dismissing for want of a substantial federal question 212 Va. 693, 187 S.E.2d 168.

It may be that the Court of Appeals would have reached the same result in a full and reasoned opinion addressed to the merits of the several constitutional contentions. But we do not know, because the Court of Appeals carefully concealed its views on the premise that Hicks precluded such expression in holding that state and lower federal courts are conclusively bound by summary dispositions. That premise was also accepted by the Court of Appeals for the Fourth Circuit in a case also involving an attack on the constitutionality of a massage parlor ordinance; there the Court of Appeals believed that a substantial federal question deserving elaboration was presented, but readHicks as foreclosing such elaboration. Hogge v. Johnson, 526 F.2d 833 (1975).

A panel of the Court of Appeals for the Seventh Circuit recently faced the same dilemma in Sidle v. Majors, 536 F.2d 1156 (1976). Appellant in that case challenged the Indiana guest statute on equal protection grounds. After discussing the relevant factors, the court stated that 'we consider the foregoing considerations to be persuasive that this guest statute contravenes the Equal Protection Clause.' At 1158. The Court noted a decision to the contrary, Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929), but concluded that later equal protection cases had left the premises of that decision no longer valid. Id., at 1159. The Court also cited eight state supreme court decisions invalidating guest statutes on equal protection grounds.³ Thus, the court held: 'We can find no necessary rational relation to the legitimate state interest (Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 30 L.Ed.2d 225 [1971]) that would require us to sustain the legislation.' Id., at 1159. Nevertheless, the court considered itself bound by Cannon v. Oviatt, 419 U.S. 810, 95 S.Ct. 24, 42 L.Ed.2d 37 (1974), dismissing for want of a substantial federal question 520 P.2d 883 (Utah 1974), and it therefore rejected the equal protection argument. Ibid. Finally, because the court was the first federal court of appeals to consider this issue and there was a severe conflict of authority among the state courts, see n. 4, infra, the court remarked:

'The frequency with which the question has arisen and the disagreement among the courts attest to the importance of the issue, its difficulty and the need for conclusive resolution so that the present viability of Silver v. Silver can be authoritatively determined.' Ibid.

Clearly, then, the same reasons that lead us to deny conclusive precedential value in this Court to our summary dispositions require that we allow the same latitude to state and lower federal courts. We accord summary dispositions less precedential value than dispositions by opinion after full briefing and oral argument, because jurisdictional statements, and motions to affirm or dismiss addressed to them, rarely contain more than brief discussions of the issues presented—certainly not the full argument we expect in briefs where plenary hearing is granted. And of course neither the statements nor the motions are argued orally. Actually, the function of the jurisdictional statement and motion to dismiss or affirm is very limited: it is to apprise the Court of issues believed by the appellant to warrant, and by the appellee not to warrant, this Court's plenary review and decision. Thus each paper is addressed to its particular objective in that regard and eschews any extended treatment of the merits. The appellant often concentrates on trying to persuade us that the appealed decision conflicts with the decision of another court and that the conflict requires our resolution. The motions to dismiss or affirm will try to persuade us to the contrary. This treatment is fully in compliance with our rules, which call for discussion of whether 'the questions presented are so substantial as to require plenary consideration, with briefs on the merits and oral argument,' and not for treatment of the merits. Rules 15(1)(e), (f), 16(1). Thus, the nature of materials before us when we vote summarily to dispose of a case rarely sufficies as a basis for regarding the summary disposition as a conclusive resolution of an important constitutional question, and we therefore do not treat it as such. For the same reason we should not require that the district courts, courts of appeals, and state courts do so.

There is reason for concern that Hicks will impair this Court's ability—indeed, responsibility—to adjudicate important constitutional issues. Where a state supreme court rejects a novel federal constitutional challenge, and simultaneously rejects a similar state law challenge, a dismissal for want of a substantial federal question will definitely resolve that issue of federal law for all courts in this country, as would a summary affirmance from a federal court. Resolution of important issues, in my view, ought not be made solely on the basis of a single jurisdictional statement, without the benefit of other court decisions and the helpful commentary that follows significant developments in the law. One factor that affects the exercise of our discretionary jurisdiction is a desire to let some complex and significant issues be considered by several courts before granting certiorari. Although this discretionary factor cannot be given weight as to cases on our appellate docket, the effect of Hicks, as I have said, is to prevent this Court from obtaining the views of state and lower federal courts on important issues; after dismissal for want of a substantial federal question or summary affirmance of the first case raising a particular constitutional question, no court will again consider the merits of the question presented to this Court. This consequence will be especially unfortunate in the instances in which the first appellants to get to this Court do a poor job of advocacy, which may prevent the Court from appreciating the true significance of the case. Furthermore, although Hicks does not prevent this Court from disregarding its summary dispositions, the binding effect of such dispositions on state and lower federal courts will cause issues to be presented to this Court in future cases without a fully developed record addressed to the merits of the specific case. This effect seriously diminishes our ability to reconsider issues previously disposed of summarily.⁴

Moreover, summary dispositions are rarely supported even by a brief opinion identifying the federal questions presented or stating the reasons or authority upon which the disposition rests. A mere 'affirmed' or 'dismissed...