Ahern v. Murphy, 71-1286.
Decision Date | 22 March 1972 |
Docket Number | No. 71-1286.,71-1286. |
Citation | 457 F.2d 363 |
Parties | James F. AHERN, Plaintiff-Appellant, v. Morgan F. MURPHY et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Seventh Circuit |
James G. Demopoulos, Chicago, Ill., for plaintiff-appellant.
Richard L. Curry, Corp. Counsel, William R. Quinlan, Richard F. Friedman, Chicago, Ill., for defendants-appellees.
Andrew J. Leahy, Lawrence A. Poltrock, Chicago, Ill., for amicus curiae.
Before PELL and SPRECHER, Circuit Judges, and DILLIN, District Judge.*
Plaintiff has attacked the constitutional sufficiency of a Chicago ordinance and a rule of the city police department requiring policemen to reside within the corporate boundaries of the City of Chicago.
Plaintiff alleged violations of 42 U.S.C. §§ 1983 and 1985 and of the equal protection clause of the Fourteenth Amendment by Section 25-30 of the Chicago Municipal Code, which provides:
He also challenged Rule 24 of the Chicago Police Department Rules and Regulations which includes among "prohibited acts" the "failure to reside within the corporate boundaries of the City of Chicago." This rule was promulgated pursuant to the statutory authority of Ill. Rev.Stat. ch. 24, § 3-7-3.1 (1969).
This appeal was argued orally on March 2, 1972. A few days earlier, on February 28, the Supreme Court of the United States dismissed an appeal from the decision of the Supreme Court of Michigan in Detroit Police Officers Ass'n v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971), "for want of a substantial federal question." 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227. The Michigan Supreme Court had held that a Detroit ordinance similar to the Chicago ordinance did not violate the equal protection clause of the Fourteenth Amendment.
Oral argument before us was limited to whether the United States Supreme Court's dismissal of the appeal from the state court was dispositive of this appeal or merely "persuasive."
Although it is well established that the denial of a petition for writ of certiorari by the Supreme Court carries no precedential weight whatever, Maryland v. Baltimore Radio Show, 338 U.S. 912, 919, 70 S.Ct. 252, 94 L.Ed. 562 (1950), the dismissal of an appeal for want of a substantial federal question stands on an entirely different basis. It is a decision on the merits of the case appealed. Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247, 79 S.Ct. 978, 3 L.Ed.2d 1200 (1959); Stern & Gressman, Supreme Court Practice (4th ed. 1969) 197. In fact, dismissal for want of a substantial federal question in a state court appeal is fully equivalent to affirmance on the merits in an appeal from a federal court insofar as the federal questions under 28 U.S.C. § 1257(1) and (2) are concerned. Id. at 233.
In a like situation, the Court of Appeals for the Second Circuit held that the Supreme Court dismissal was dispositive. In Port Authority Bondholders Protective Committee v. Port of New York Authority, 387 F.2d 259, 262 (2nd Cir.1967), the court said:
The Port Authority case was questioned in a student law review note, "The Significance of Dismissals ...
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