Hogge v. Johnson, 74-1656

• Decision Date: 19 August 1975
• Docket Number: 74-1657.,No. 74-1656,74-1656
• Citation: 526 F.2d 833
• Parties: Patricia HOGGE et al., Appellants, v. C. E. JOHNSON, City Manager, and Patrick G. Minetti, Chief of Police, of the City of Hampton, Virginia, each in their official capacity, Appellees. Scarlett Anne HILLIARD, and Earle Phillips, t/a French Massage Parlor, Appellants, v. William E. LAWSON, City Manager, and Howard B. Blackmon, Chief of Police, each in their official capacity, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

526 F.2d 833

Patricia HOGGE et al., Appellants, v. C. E. JOHNSON, City Manager, and Patrick G. Minetti, Chief of Police, of the City of Hampton, Virginia, each in their official capacity, Appellees.

Scarlett Anne HILLIARD, and Earle Phillips, t/a French Massage Parlor, Appellants, v. William E. LAWSON, City Manager, and Howard B. Blackmon, Chief of Police, each in their official capacity, Appellees.

Nos. 74-1656, 74-1657.

United States Court of Appeals, Fourth Circuit.

Argued January 8, 1975.

Decided August 19, 1975.

Rebecca J. April Fitch (Kenneth C. Hogge, Carmel, Gray & Hogge, Hampton, Va., on brief), for appellants.

Thomas E. Glascock, Hampton, Va., for appellees in No. 74-1656.

Robert M. Roylance, Asst. City Atty., for appellees in No. 74-1657.

Before CLARK, United States Supreme Court Justice, Retired,^* and CRAVEN and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge:

Plaintiffs below sought injunctive and declaratory relief against local ordinances designated to regulate massage parlors in Hampton and Newport News, Virginia. With certain exceptions, the ordinances prohibit, under criminal sanction, the massage of any person by another of the opposite sex.¹ That prohibition was attacked both as an arbitrary sex-based classification in violation of the fourteenth amendment's Equal Protection Clause and as requiring sex discrimination in the employment of massage parlor attendants, in conflict with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and therefore inoperative under the Supremacy Clause, U.S.Const. Art. VI.

In Joseph v. Blair, 482 F.2d 575 (4th Cir. 1973), rehearing denied, 488 F.2d 403, cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974), we reversed an earlier order of the district court that dismissed these complaints on the basis of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). We noted in passing that a similar ordinance of the City of Falls Church, Virginia had been adjudged constitutional by the Virginia Supreme Court in Kisley v. City of Falls Church, 212 Va. 693, 187 S.E.2d 168 (1972), and that an appeal to the Supreme Court of the United States had been dismissed for want of a substantial federal question, 409 U.S. 907, 93 S.Ct. 237, 34 L.Ed.2d 169 (1972). But we then felt that the Court's dismissal in Kisley should not be treated as an adjudication on the merits because the representations of the parties made in their briefs and arguments indicated that at least some of the federal claims sought to be litigated in the instant case were either not raised in the Virginia suit or were not passed upon in any substantial way by the Virginia Supreme Court, pointing specifically to plaintiffs' claim that the ordinances were repugnant to Title VII of the Civil Rights Act of 1964.

Quite recently, the United States Supreme Court has spoken to the question among the circuits with respect to the meaning to be accorded dismissal for want of a substantial federal question. Such a dismissal is a decision on the merits binding upon the inferior federal courts. It is stare decisis on issues properly presented to the Supreme Court and declared by that Court to be without substance. Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Thus we are led to compare again the issues presented on the evidence in these cases with the issues decided by the Supreme Court in Kisley.

In Kisley, supra, the Virginia Supreme Court sustained the constitutionality of Ordinance No. 512 of the City of Falls Church, which ordinance provided that:

It shall be unlawful for any establishment, regardless of whether it is a public or private facility, to operate as a massage salon, bath parlor, or any similar type business, where any physical contact with the recipient of such services is provided by a person of the opposite sex.

The Virginia Supreme Court considered and rejected arguments that Ordinance No. 512 deprived owners and operators and employees of massage parlors property rights without due process of law and denied them equal protection of the laws, quoting favorably from Ex parte Maki, 56 Cal.App.2d 635, 133 P.2d 64 (1943):

"The ordinance applies alike to both men and women. . . . The barrier erected by the ordinance against immoral acts likely to result from too intimate familiarity of the sexes is no more than a reasonable regulation imposed by the city council in the fair exercise of police powers.

". . . The reasonable exercise of the police power in regulating any occupation in order to maintain the moral welfare does not arbitrarily deprive a person so engaged of his property. . . . Enactments that curb the vicious or restrain the wicked necessarily restrict the emoluments of his enterprise. However, such results are not to be considered in determining the validity of a law.

. . . .

"There is nothing in the ordinance that denies the equal protection guaranteed by the Fourteenth Amendment. . . ."

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

The Falls Church ordinance examined in Kisley, supra, is substantially identical with the ordinances of Hampton and Newport News set out in footnote 1, supra. We think the issue presented to the Supreme Court in the appeal of Kisley and declared by it to be without substance included the question sought to be raised here: whether the ordinances violate the fourteenth amendment's equal protection clause. Thus, summary dismissal of the appeal in Kisley is a perfectly clear precedent that is binding upon us.²

The only question remaining is plaintiffs' contention that the ordinances are in conflict with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court noted that the Act defines the term employer to mean "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, . . . ." He found as a fact that "the evidence does not establish any of plaintiffs meet this test." The evidence is both conflicting and confusing, but there is substantial support for such a finding, and it is not clearly erroneous.

Affirmed.

Mr. Justice CLARK (concurring):

I concur but wish to comment on the holding that we are bound here by the 1972 order in the Kisley case which was dismissed by the Supreme Court for want of a substantial federal question. The Supreme Court's statements in Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), 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...