455 U.S.

283
102 S.Ct. 1070
71 L.Ed.2d 152

CITY OF MESQUITE, Appellant,

v.
ALADDIN'S CASTLE, INC.
No. 80-1577.
Argued Nov. 10, 1981.
Decided Feb. 23, 1982.
Judgment Recall Denied Oct. 31, 1983.

See 104 S.Ct. 329.

Syllabus
Section 6 of appellant Texas city's licensing ordinance governing coinoperated amusement establishments directs the Chief of Police to consider
whether a license applicant has any "connections with criminal elements."
After receiving recommendations from the Chief of Police, the Chief
Building Inspector, and the City Planner, the City Manager decides
whether to grant a license. If he denies the license, the applicant may
appeal to the City Council. If the City Manager denied the application
because of the Chief of Police's adverse recommendation as to the
applicant's character, the applicant must show to the City Council that he
or it is of good character. Section 5 of the ordinance prohibits a licensee
from allowing children under 17 years of age to operate amusement
devices unless accompanied by a parent or legal guardian. After appellant
had been ordered in Texas state-court proceedings to issue appellee
amusement center operator a license (its license application having been
initially denied under the predecessor to 6), and after appellant had
repealed appellee's exemption from the predecessor to 5, appellee
brought suit in Federal District Court, praying for an injunction against
enforcement of the ordinance. The District Court held that 6 was
unconstitutionally vague, but upheld 5. The Court of Appeals affirmed
as to 6, basing its holding solely on the Due Process Clause of the
Fourteenth Amendment, but reversed as to 5, basing its holding on the
Texas Constitution as well as on the Fourteenth Amendment.

Held :
1. The fact that the phrase "connections with criminal elements" was
eliminated from the ordinance while the case was pending in the Court of
Appeals does not render the case moot. A defendant's voluntary cessation
of a challenged practice does not deprive a federal court of its power to
determine the legality of the practice. Here, appellant's repeal of the
objectionable language would not preclude it from reenacting the same
provision if the District Court's judgment were vacated. Pp. 288-289.
2. The Court of Appeals erred in holding that 6 is unconstitutionally
vague. It is clear from the procedure to be followed when an application
for a license is denied by the City Manager based on the Chief of Police's
recommendation, that the phrase "connections with criminal elements" is
not the standard for approval or disapproval of the application. Rather, the
applicant's possible connection with criminal elements is merely a subject
that 6 directs the Chief of Police to investigate before he makes a
recommendation to the City Manager. The Federal Constitution does not
preclude a city from giving vague or ambiguous directions to officials who
are authorized to make investigations and recommendations. Pp. 289-291.
3. Because Congress has limited this Court's jurisdiction to review
questions of state law and because there is ambiguity in the Court of
Appeals' holding as to 5, a remand for clarification of that holding is
necessary. This Court will not decide the federal constitutional question
connected with 5, where (a) the relevant language of the Texas
constitutional provisions is different from, and arguably significantly
broader than, the language of the corresponding federal provisions; (b) it
is unclear whether this Court would apply as a matter of federal law the
same standard applied as a matter of state law by the Court of Appeals in
reviewing 5; and (c) it is this Court's policy to avoid unnecessary
adjudication of federal constitutional questions, there being no need for
decision of the federal issue here if Texas law provides independent
support for the Court of Appeals' judgment. Pp. 291-295.
630 F.2d 1029, reversed in part and remanded.
Elland Archer, Mesquite, Tex., for appellant.
Philip W. Tone, Chicago, Ill., for appellee.
Justice STEVENS delivered the opinion of the Court.

The United States Court of Appeals for the Fifth Circuit declared
unconstitutional two sections of a licensing ordinance governing coin-operated
amusement establishments in the city of Mesquite, Texas.1 Section 6 of
Ordinance 1353, which directs the Chief of Police to consider whether a license
applicant has any "connections with criminal elements,"2 was held to be
unconstitutionally vague. Section 5, which prohibits a licensee from allowing
children under 17 years of age to operate the amusement devices unless
accompanied by a parent or legal guardian,3 was held to be without a rational
basis. The first holding rests solely on the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. The Court of Appeals
stated that its second holding rested on two provisions of the Texas Constitution
as well as the Fourteenth Amendment to the Federal Constitution. Because
Congress has limited our jurisdiction to review questions of state law, and
because there is ambiguity in the Court of Appeals' second holding, we
conclude that a remand for clarification of that holding is necessary. There is,
however, no impediment to our review of the first holding.

On April 5, 1976, to accommodate the proposal of Aladdin's Castle, Inc.

(Aladdin), to open an amusement center in a shopping mall, the city exempted
from the prohibition against operation of amusement devices by unattended
children certain amusement centers, the features of which were defined in terms
of Aladdin's rules, as long as children under the age of seven were accompanied
by an adult.4 Thereafter, Aladdin entered into a long-term lease and made other
arrangements to open a center in the mall. In August, however, its application
for a license was refused because the Chief of Police had concluded that
Aladdin's parent corporation was connected with criminal elements. Aladdin
then brought suit in a Texas state court and obtained an injunction requiring the
city to issue it a license forthwith. The Texas court found that neither Aladdin
nor its parent corporation had any connection with criminal elements and that
the vagueness in the ordinance contravened both the Texas and the Federal
Constitutions.5

On February 7, 1977, less than a month after the city had complied with the
state-court injunction by issuing the license to Aladdin, the city adopted a new
ordinance repealing Aladdin's exemption, thereby reinstating the 17-year age
requirement, and defining the term "connections with criminal elements" in
some detail.6 Aladdin then commenced this action in the United States District
Court for the Northern District of Texas, praying for an injunction against
enforcement of the new ordinance. After a trial, the District Court held that the
language "connections with criminal elements," even as defined, was
unconstitutionally vague, but the District Court upheld the age restriction in the
ordinance.7 As already noted, the Court of Appeals affirmed the former holding

and reversed the latter.

4

Invoking our appellate jurisdiction under 28 U.S.C. 1254(2), the city now
asks us to reverse the judgment of the Court of Appeals. After we noted
probable jurisdiction, 451 U.S. 981, 101 S.Ct. 2312, 68 L.Ed.2d 838, Aladdin
advised us that the ordinance reviewed by the Court of Appeals had been
further amended in December 1977 by eliminating the phrase "connections
with criminal elements." The age restriction, however, was retained.8

* A question of mootness is raised by the revision of the ordinance that became

effective while the case was pending in the Court of Appeals. When that court
decided that the term "connections with criminal elements" was
unconstitutionally vague, that language was no longer a part of the ordinance.
Arguably, if the court had been fully advised, it would have regarded the
vagueness issue as moot.9 It is clear to us, however, that it was under no duty to
do so.

It is well settled that a defendant's voluntary cessation of a challenged practice

does not deprive a federal court of its power to determine the legality of the
practice. Such abandonment is an important factor bearing on the question
whether a court should exercise its power to enjoin the defendant from
renewing the practice, but that is a matter relating to the exercise rather than the
existence of judicial power.10 In this case the city's repeal of the objectionable
language would not preclude it from reenacting precisely the same provision if
the District Court's judgment were vacated.11 The city followed that course
with respect to the age restriction, which was first reduced for Aladdin from 17
to 7 and then, in obvious response to the state court's judgment, the exemption
was eliminated. There is no certainty that a similar course would not be pursued
if its most recent amendment were effective to defeat federal jurisdiction. We
therefore must confront the merits of the vagueness holding.

"It is a basic principle of due process that an enactment is void for vagueness if
its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S.
104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (emphasis added).12 We may
assume that the definition of "connections with criminal elements" in the city's
ordinance is so vague that a defendant could not be convicted of the offense of
having such a connection; we may even assume, without deciding, that such a
standard is also too vague to support the denial of an application for a license to
operate an amusement center. These assumptions are not sufficient, however, to
support a holding that this ordinance is invalid.
After receiving recommendations from the Chief of Police, the Chief Building

After receiving recommendations from the Chief of Police, the Chief Building
Inspector, and the City Planner, the City Manager decides whether to approve
the application for a license; if he disapproves, he must note his reasons in
writing. The applicant may appeal to the City Council. If the City Manager
disapproved the application because of the Chief of Police's adverse
recommendation as to the applicant's character, then the applicant must show to
the City Council that "he or it is of good character as a law abiding citizen,"
which is defined in the ordinance to "mean substantially that standard employed
by the Supreme Court of the State of Texas in the licensing of attorneys as set
forth in [the Texas statutes]." 9 of Ordinance 1353, App. to Juris. Statement
13. An applicant may further appeal to the state district court. It is clear from
this summary13 that the phrase "connections with criminal elements," as used in
this ordinance, is not the standard for approval or disapproval of the
application.
The applicant's possible connection with criminal elements is merely a subject
that the ordinance directs the Chief of Police to investigate before he makes a
recommendation to the City Manager either to grant or to deny a pending
application. The Federal Constitution does not preclude a city from giving
vague or ambiguous directions to officials who are authorized to make
investigations and recommendations. There would be no constitutional
objection to an ordinance that merely required an administrative official to
review "all relevant information" or "to make such investigation as he deems
appropriate" before formulating a recommendation. The judgment of the Court
of Appeals was therefore incorrect insofar as it held that the directive to the
Chief of Police is unconstitutionally vague.

II
10

The Court of Appeals stated that its conclusion that the age requirement in the
ordinance is invalid rested on its interpretation of the Texas Constitution as well
as the Federal Constitution:

11

"We hold that the seventeen year old age requirement violates both the United
States and Texas constitutional guarantees of due process of law, and that the
application of this age requirement to coin-operated amusement centers violates
the federal and Texas constitutional guarantees of equal protection of the law."
630 F.2d 1029, 1038-1039 (1980) (footnotes omitted).

12

In the omitted footnotes the court quoted two provisions of the Texas
Constitution that are similar, but by no means identical, to parts of the Federal
Constitution.14

13

Because our jurisdiction of this appeal is based on 28 U.S.C. 1254(2), we are

precluded from reviewing the Court of Appeals' interpretation of the Texas
Constitution. For the federal statute provides:

14

"Cases in the courts of appeals may be reviewed by the Supreme Court by the
following methods:

15

*****

16

"(2) By appeal by a party relying on a State statute held by a court of appeals to

be invalid as repugnant to the Constitution, treaties or laws of the United States,
but such appeal shall preclude review by writ of certiorari at the instance of
such appellant, and the review on appeal shall be restricted to the Federal
questions presented. . . ."

17

If the Texas Constitution provides an independent ground for the Court of

Appeals' judgment, our possible disagreement with its exposition of federal law
would not provide a sufficient basis for reversing its judgment. If that be so, we
should simply dismiss the appeal insofar as the city seeks review of the
invalidation of the age requirement. Cf. United States v. Hastings, 296 U.S.
188, 193, 56 S.Ct. 218, 220, 80 L.Ed. 148. 15

18

The city contends, however, that the Court of Appeals did not place
independent reliance on Texas law but merely treated the Texas constitutional
protections as congruent with the corresponding federal provisions.16 Under
this reading of the Court of Appeals' opinion, our correction of any federal error
automatically would result in a revision of the Court of Appeals' interpretation
of the Texas Constitution. Instead of providing independent support for the
judgment below, the Texas law, as understood by the Court of Appeals, would
be dependent on our reading of federal law. Although the city's contention
derives support from the Court of Appeals' greater reliance on federal
precedents than on Texas cases, we nevertheless decline, for the reasons that
follow, to decide the federal constitutional question now.

19

It is first noteworthy that the language of the Texas constitutional provision is

different from, and arguably significantly broader than, the language of the
corresponding federal provisions. As a number of recent State Supreme Court
decisions demonstrate, a state court is entirely free to read its own State's
constitution more broadly than this Court reads the Federal Constitution, or to
reject the mode of analysis used by this Court in favor of a different analysis of
its corresponding constitutional guarantee. See generally Brennan, State

Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489

(1977), and cases cited therein. Because learned members of the Texas Bar sit
on the Court of Appeals for the Fifth Circuit, and because that court confronts
questions of Texas law in the regular course of its judicial business, that court is
in a better position than are we to recognize any special nuances of state law.
The fact that the Court of Appeals cited only four Texas cases is an insufficient
basis for concluding that it did not make an independent analysis of Texas law.
20

Second, it is important to take note of the Court of Appeals' interpretation of the

Texas "requirement of legislative rationality." That interpretation seems to
adopt a standard requiring that a legislative classification rests " ' "upon some
ground of difference having a fair and substantial relation to the object of the
legislation. . . ." ' " 630 F.2d, at 1039.17 This formulation is derived from this
Court's opinion in F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40
S.Ct. 560, 561, 64 L.Ed. 989. But it is unclear whether this Court would apply
the Royster Guano standard to the present case. See United States Railroad
Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368; Craig v.
Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397. Therefore, it is surely not
evident that the Texas standard and the federal standard are congruent.

21

Finally, and of greater importance, is this Court's policy of avoiding the

unnecessary adjudication of federal constitutional questions. As we recently
have noted, see Minnick v. California Dept. of Corrections, 452 U.S. 105, 101
S.Ct. 2211, 68 L.Ed.2d 706, this self-imposed limitation on the exercise of this
Court's jurisdiction has an importance to the institution that transcends the
significance of particular controversies. No reason for hasty decision of the
constitutional question presented by this case has been advanced. If Texas law
provides independent support for the Court of Appeals' judgment, there is no
need for decision of the federal issue.18 On the other hand, if the city is correct
in suggesting that the Court of Appeals' interpretation of state law is dependent
on its federal analysis, that court can so advise us and we can then discharge
our responsibilities free of concern that we may be unnecessarily reaching out
to decide a novel constitutional question.19

22

The judgment of the Court of Appeals is reversed in part, and the case is
remanded for further proceedings consistent with this opinion.

23

It is so ordered.

24

Justice WHITE, concurring in part and dissenting in part.

25

I concur in the Court's holding that Mesquite's ordinance directing the Chief of
Police to consider whether a license applicant has any "connections with
criminal elements" is not void for vagueness. *

26

Like Justice POWELL, however, I dissent from the Court's remand of the
challenge to the age requirements in 5 of the Mesquite ordinance. The
sentiment to avoid unnecessary constitutional decisions is wise, but there is no
reason in this case to suspect that the Fifth Circuit's standard for evaluating
appellee's due process and equal protection claims under the Texas Constitution
differed in any respect from federal constitutional standards. I agree with
Justice POWELL that "the inclusion of three cursory state-law citations in a full
discussion of federal law by a federal court is neither a reference to nor an
adoption of an independent state ground." Post, at 299-300 (concurring in part
and dissenting in part).

27

I refrain from joining Justice POWELL's detailed discussion in support of this

position only because I would prefer not to engage in debate over the present
health of "the Roys- ter Guano standard." As I understand it, and as expressed
in the opinion of the Court, ante at 292 and 294, the rationale for inquiring into
the presence of independent and adequate state grounds is to avoid an
unnecessary "abstract opinion," United States v. Hastings, 296 U.S. 188, 193,
56 S.Ct. 218, 220, 80 L.Ed. 148 (1935), and to refrain from "unnecessary
adjudication of federal constitutional questions." Ante at 294. This is the sole
justification for remanding the case to the Court of Appeals. To justify that
disposition, however, the Court finds it necessary to speculate as to whether a
formulation of the rational-basis test initially stated in F. S. Royster Guano Co.
v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920), and
reiterated in Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225
(1971), remains good law in light of more recent decisions. Ante, at 1077.
Justice POWELL, in response, declares that "[t]his Court has never rejected
either Royster Guano or Reed v. Reed." Post, at 301, n.6.

28

I fear that we have lost sight of the fact that our reason for pursuing this inquiry
is to avoid rendering advisory opinions on federal constitutional law. It is ironic
that in seeking to skirt a relatively narrow issue of whether the Mesquite age
requirement is constitutional, an issue decided by the Court of Appeals and
fully briefed, the Court has instead entered into highly abstract, totally advisory,
speculation as to the continuing validity of one of our earlier statements on a
matter of no small constitutional importance. If it is necessary to interpret a
case twice removed and totally unrelated to the matter before us in order to
justify a remand to the Court of Appeals, I would think it clear that no

independent nonfederal basis for the decision is present. Delaware v. Prouse,

440 U.S. 648, 652, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979).
29

Justice POWELL, concurring in part and dissenting in part.

30

I concur in the Court's holding that Mesquite Ordinance 1353, 6, is not void
for vagueness. I dissent, however, from the Court's remand of the challenge to
5.

31

* The jurisdictional basis for the Court's review of this case is 28 U.S.C.
1254(2), which provides for mandatory Supreme Court review of federal
appellate decisions overturning state statutes on federal constitutional grounds.
Rather than exercising this jurisdiction, the Court remands the case to the Court
of Appeals to clarify whether its decision is based on Texas law. In the past, the
Court has not automatically required clarification when the record reveals that
the lower court's decisional basis is federal law. In this case, the opinion of the
Court of Appeals contains no analysis of state law independent of its clear
application of federal law. In my view there is no justification for a remand.

32

The city of Mesquite, Tex., adopted an ordinance stating that owners of coinoperated pinball machines should not allow their operation by youths under the
age of 17 years. In the decision below, the Court of Appeals held that this
ordinance violated equal protection and due process as well as First
Amendment rights of free speech and association. The court's opinion referred
to the Texas Constitution's Due Process and Equal Protection Clauses,1 and
quoted the relevant Texas constitutional provisions in the margin.2 The court
then, at some length, applied the Fourteenth Amendment's rational-relationship
test to the Mesquite ordinance, citing, quoting, and discussing a total of 18
federal cases in this analysis. In the two initial paragraphs defining the broad
principles applied in that analysis, the court cited two Texas cases and quoted
briefly from another. 630 F.2d 1029, 1035 (CA5 1980).

33

These Texas cases do not suggest an adequate and independent state ground for
overruling the Mesquite ordinance. In the quoted case, the Texas court was
describing federal, not Texas, law. Texas Woman's University v. Chayklintaste,
530 S.W.2d 927, 928 (Tex.1975) (citing Reed v. Reed, 404 U.S. 71, 76, 92
S.Ct. 251, 254, 30 L.Ed.2d 225 (1971)). Of the two other Texas cases cited, one
involves an unsuccessful challenge to a zoning ordinance, and in it the Supreme
Court of Texas applied the rule that a challenger to a zoning ordinance bears a
heavy burden of showing that the exercise of police power is not lawful. City of
University Park v. Benners, 485 S.W.2d 773, 778-779 (1972). This case

actually supports the validity of the Mesquite ordinance under Texas law.
34

In the other case, Falfurrias Creamery Co. v. City of Laredo, 276 S.W.2d 351
(Tex.Civ.App.1955), the State had established an inspection program for
dairies. One municipality then passed an ordinance under which milk could be
sold within its borders only if inspected by a local inspector. The Texas Court
of Civil Appeals concluded that this requirement was arbitrary, since the local
inspector could easily determine whether other inspectors were "[making]
inspect[ions] in accordance with the standard ordinance contemplated by the
State law." Id., at 355. This single case dealing with a dairy-inspection
requirement designed to favor local dairies cannot be the basis for a serious
allegation that Texas law would not allow Mesquite to exercise its police power
by keeping youths out of pinball parlors.

35

On the basis of an inference as weak as that afforded by Falfurrias Creamery, I

would not remand to any court, state or federal. But even if the cited case law
provided some support for appellee's challenge, the inclusion of three cursory
state-law citations in a full discussion of federal law by a federal court is neither
a reference to nor an adoption of an independent state ground. The Court's view
allows federal courts overruling state statutes to avoid appellate review here
simply by adding citations to state cases when applying federal law.

36

Nor is the Court's rigid approach today required by earlier decisions. In

Konigsberg v. State Bar of California, 353 U.S. 252, 256-258, 77 S.Ct. 722,
724-725, 1 L.Ed.2d 810 (1957), for example, California argued that the
California Supreme Court's order dismissing the petitioner's prayer for relief
was based on an independent and adequate state ground: the requirements of a
state procedural rule. The Court nevertheless proceeded to the merits of the
federal question without remanding for clarification of the dismissal order's
basis. This Court found the profferred sources of the alleged state procedural
rule unconvincing and "conclu[ded] that the constitutional issues are before us
and we must consider them." Id., at 258, 77 S.Ct., at 725 (footnote omitted). 3

II
37

The Court gives three reasons for remanding. First, it observes that the
language of the State Constitution, quoted in n. 2, supra, differs from that in the
Federal Constitution and Texas may afford broader protection to individual
rights than does the Federal Government. The relevant question is not,
however, whether state law could be, or even is, different from federal law, but
whether the Court of Appeals decided the case before it on state or federal
grounds. In deciding this question, the citation of only three4 state cases is not,

of course, determinative. Here, however, the Court of Appeals failed to discuss,

explain, describe, or even state Texas law despite extensive discussion of
federal law and cases.
38

The Court's second point is at least imaginative. It focuses on one sentence

from Reed v. Reed, 404 U.S., at 76, 92 S.Ct., at 254, quoted in the Texas case
of Texas Woman's University v. Chayklintaste, 530 S.W.2d 927, 928, ante, at
294, and n.17. That sentence reiterated a formulation of rational-basis analysis
that was stated in F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40
S.Ct. 560, 561, 64 L.Ed. 989 (1920). The Court today then implies that "the
Royster Guano standard" may no longer be good law, citing United States
Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368
(1980).5 From this implication,6 the Court further infers that "the Texas
standard and the federal standard" may not be congruent. The best answer to
this speculative syllogism is found in the discussion of rational-basis analysis
by the Court of Appeals. In an Appendix hereto I include the three paragraphs
of the opinion that discuss the rational-relationship standard of review. It will
be noted that nine United States Supreme Court cases were cited. Although
three Texas cases were cited also, there is not the slightest indication that the
Court of Appeals was distinguishing between federal and state law. Moreover,
in the subsequent pages applying rational-relationship review, the court did not
cite or discuss a single Texas case or any aspect of Texas law, though 11 federal
cases were cited and discussed. 630 F.2d, at 1039-1040 (not included in
Appendix).

39

Finally, the Court relies on our traditional reluctance to decide a constitutional

question unnecessarily. But we noted jurisdiction to consider the validity of the
Mesquite ordinance, and this question is squarely presented. As a general
matter, the Court should avoid unnecessary remands; this is particularly true
when the Court's mandatory jurisdiction has been invoked under 1254(2).
Neither the Court of Appeals nor appellee has presented any substantial reason
for thinking that the Mesquite ordinance is invalid under Texas law
independently of federal law that clearly was the basis for the decision below.
In these circumstances, we have a duty to decide the substantive questions
presented.

APPENDIX TO OPINION OF JUSTICE POWELL*

"1. Rational Basis
40

"Assuming that the rational basis test is the appropriate standard of review, we
conclude that no such rationality supports ordinance No. 1353. The test

requires that legislative action be rationally related to the accomplishment of a

legitimate state purpose. First, the challenged legislation must have a legitimate
public purpose based on promotion of the public welfare, health or safety. See,
e.g., Rinaldi v. Yeager, 384 U.S. 305, 309-10 [86 S.Ct. 1497, 1499-1500, 16
L.Ed.2d 577] (1966); Falfurrias Creamery Co. v. City of Laredo, 276 S.W.2d
351 (Tex.Civ.App.1955, writ ref'd n. r. e.). Second, the act taken must bear a
rational relation to the end it seeks to further. See e.g., Griswold v. Connecticut,
381 U.S. 479, at 505-507 [85 S.Ct. 1678, at 1693-94, 14 L.Ed.2d 510]
(WHITE, J., concurring); Schware v. Board of Bar Examiners, 353 U.S. 232,
239 [77 S.Ct. 752, 756, 1 L.Ed.2d 796] (1957); City of University Park v.
Benners, 485 S.W.2d 773, 778-79 (Tex.1972), appeal dismissed, 411 U.S. 901
[93 S.Ct. 1530, 36 L.Ed.2d 191] (1973).
41

"The requirement of legislative rationality in the service of legitimate purposes

protects individuals and their liberties from official arbitrariness or unthinking
prejudice. As one commentator noted, irrationality at least means 'patently
useless in the service of any goal apart from whim or favoritism.' Michelman,
Politics and Values or What's Really Wrong with Rationality Review? 13
Creighton Law Review 487, 499 (1979). The test requires that legislation
constitute a means that is 'reasonable, not arbitrary and rests "upon some
ground of difference having a fair and substantial relation to the object of the
legislation . . ." ' Texas Woman's University v. Chayklintaste, 530 S.W.2d 927,
928 (Tex. 1979), citing Reed v. Reed, 404 U.S. 71, 76 [92 S.Ct. 251, 254, 30
L.Ed.2d 225] (1971). Accord, United States Department of Agriculture v.
Moreno, 413 U.S. 528 [93 S.Ct. 2821, 37 L.Ed.2d 782] (1973); James v.
Strange, 407 U.S. 128 [92 S.Ct. 2027, 32 L.Ed.2d 600] (1972); Jackson v.
Indiana, 406 U.S. 715 [92 S.Ct. 1845, 32 L.Ed.2d 435] (1972); Stanley v.
Illinois, 405 U.S. 645 [92 S.Ct. 1208, 31 L.Ed.2d 551] (1972); Eisenstadt v.
Baird, 405 U.S. 438 [92 S.Ct. 1029, 31 L.Ed.2d 349] (1972).

42

"Examination of ordinance No. 1353 reveals two stated purposes. First, the
ordinance seeks to prevent truancy. Second, it seeks to keep minors from being
exposed to people 'who would promote gambling, sale of narcotics and other
unlawful activities.' We conclude that the seventeen year old age requirement in
no way rationally furthers these interests in regulating the associational activity
of Mesquite's young citizens, even making the assumption that both of these
goals are legitimate." 630 F.2d, at 1039.

630 F.2d 1029 (1980).

Section 6 of Ordinance 1353 of the Code of the city of Mesquite provided in

pertinent part:
"Any person desiring to obtain a license for a coin-operated amusement
establishment shall apply to the City Secretary by original and five (5) copies,
one of which shall be routed to the City Manager, Chief of Police, Chief
Building Inspector and City Planner, for review.
"Upon approval by each of the parties and payment of the license fee, the City
Secretary shall issue a license for such establishment, which shall be valid for
one (1) year and shall be non-transferable.
"The Chief of Police shall make his recommendation based upon his
investigation of the applicant's character and conduct as a law abiding person
and shall consider past operations, if any, convictions of felonies and crimes
involving moral turpitude and connections with criminal elements, taking into
consideration the attraction by such establishments of those of tender years.
"The Chief Building Inspector and City Planner shall determine compliance
with applicable building and zoning ordinances of the City.
"When the City Manager has received the recommendations from the Chief of
Police, Chief Building Inspector and City Planner, he shall review such
application together with such recommendations as may be furnished and shall
approve such application or disapprove same with written notation of his
reasons for disapproval.
"Upon disapproval, the applicant may make such corrections as noted and
request approval, request withdrawal and refund of license fee, or give notice of
appeal from the City Manager's decision.
"In the event of appeal from the City Manager's decision the applicant shall
give written notice of his intention to appeal within ten (10) days of notice of
the City Manager's decision. Such appeal shall be heard by the City Council
within thirty (30) days from date of such notice unless a later date is agreed
upon by applicant.
"Upon appeal to the City Council of the City Manager's decision based upon an
adverse recommendation by the Chief of Police as to applicant's character, the
applicant shall have the same burden as prescribed in Article 305, V.A.C.S. to
show to the Council that he or it is of good character as a law abiding citizen to
such extent that a license should be issued.
"Upon hearing the Council may reverse the decision of the City Manager in
whole or in part or may affirm such decision.

"An applicant may appeal such decision to the District Court within thirty (30)
days but such appeal shall be upon the substantial evidence rule.
"For violation of any of the requirements of this ordinance the City Manager
may upon three (3) days notice of Licensee revoke the license granted
hereunder. The same rights of appeal shall exist upon revocation as upon
disapproval of the original application." App. to Juris. Statement 9-10.
3

Section 5 provides:
"It shall be unlawful for any owner, operator or displayer of coin-operated
amusement machines to allow any person under the age of seventeen (17) years
to play or operate a coin-operated amusement machine unless such minor is
accompanied by a parent or legal guardian." Id., at 8.

See Ordinance 1310.

The judgment of the trial court was affirmed by the Texas Court of Civil
Appeals, 559 S.W.2d 92 (1977), and the Texas Supreme Court refused an
application for a writ of error, 570 S.W.2d 377 (1978), finding no reversible
error in the conclusion that the denial of the license was not supported by
substantial evidence, but declining to reach the vagueness question.

Section 9 of Ordinance 1353 defined terms used in 6 of the ordinance (quoted

in n. 2, supra ), which had been reenacted without change. Section 9 provided
in pertinent part:
"Connection With Criminal Elements is defined as that state of affairs wherein
an applicant, or an officer of, principal stockholder of, person having a
substantial interest in or management responsibility for, a corporation or other
organization wherein such organization is the applicant, directly or as parent,
subsidiary or affiliate, has such association, acquaintance, or business
association with parties having been convicted of a felony or crime involving
moral turpitude or are otherwise involved in unlawful activities, whether
convicted or not, to the extent that the fencing of stolen merchandise or illegally
obtained funds, the procuring of prostitutes, the transfer or sale of narcotics or
illegal substances is made more feasible or likely or the protection of those of
tender years from such unwholesome influences are rendered more difficult.
"A determination by the United States Department of Justice that a party is a
member of the 'mafia' or 'Cosa Nostro' family or that such party is engaged in or
affiliated with a nationwide crime organization, whether formally or informally,
shall be prima facia evidence, so far as the issuance of a license hereunder, that
such person has 'connections with criminal elements' and constitute, within the

meaning of this ordinance, 'criminal elements'." App. to Juris. Statement 12-13.

7

434 F.Supp. 473 (1977), aff'd in part, rev'd and remanded in part, 630 F.2d
1029 (1980).

See Ordinance 1410, App. to Brief for Appellee A1-A11.

If it becomes apparent that a case has become moot while an appeal is pending,
the judgment below normally is vacated with directions to dismiss the
complaint. See United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104,
95 L.Ed. 36.

10

"The test for mootness in cases such as this is a stringent one. Mere voluntary
cessation of allegedly illegal conduct does not moot a case; if it did, the courts
would be compelled to leave '[t]he defendant . . . free to return to his old ways.'
United States v. W. T. Grant Co., 345 U.S. 629, 632 [73 S.Ct. 894, 897, 97
L.Ed. 1303] (1953); see, e.g., United States v. Trans-Missouri Freight Assn.,
166 U.S. 290 [17 S.Ct. 540, 41 L.Ed. 1007] (1897). A case might become moot
if subsequent events made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur. . . . Of course it is still open
to appellees to show, on remand, that the likelihood of further violations is
sufficiently remote to make injunctive relief unnecessary. [345 U.S.] at 633636, [73 S.Ct., at 897-899]. This is a matter for the trial judge. But this case is
not technically moot, an appeal has been properly taken, and we have no choice
but to decide it." United States v. Concentrated Phosphate Export Assn., 393
U.S. 199, 203-204, 89 S.Ct. 361, 364, 21 L.Ed.2d 344.

11

Indeed, the city has announced just such an intention. See Tr. of Oral Arg. 1820.

12

The Court of Appeals summarized the relevant authorities as follows:

"A law is void for vagueness if persons 'of common intelligence must
necessarily guess at its meaning and differ as to its application. . . .' Smith v.
Goguen, 415 U.S. 566, 572 n.8, [94 S.Ct. 1242, 1246, 39 L.Ed.2d 605] quoting
Connally v. General Construction Co., 269 U.S. 385, 391 [46 S.Ct. 126, 127,
70 L.Ed. 322]. See generally Note, The Void-for-Vagueness Doctrine in the
Supreme Court, 109 U.Pa.L.Rev. 67 (1960). The offense to due process lies in
both the nature and consequences of vagueness. First, vague laws do not give
individuals fair notice of the conduct proscribed. Papachristou v. City of
Jacksonville, 405 U.S. 156, 162. [92 S.Ct. 839, 843, 31 L.Ed.2d 110] Accord
Grayned v. City of Rockford, 408 U.S. 104, 108 & n. 3. [92 S.Ct. 2294, 2298,
33 L.Ed.2d 222] Second, vague laws do not limit the exercise of discretion by
law enforcement officials; thus they engender the possibility of arbitrary and

discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. at 108-09 &

n. 4; [92 S.Ct. at 2298-2299] Papachristou v. City of Jacksonville, 405 U.S. at
168-70. [92 S.Ct. at 846-847] Third, vague laws defeat the intrinsic promise of,
and frustrate the essence of, a constitutional regime. We remain 'a government
of laws, and not of men,' Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 163, [2
L.Ed. 60] only so long as our laws remain clear." 630 F.2d, at 1037 (citations
abbreviated).
13

The ordinance is quoted in pertinent part in n. 2, supra.

14

Article 1, 19, of the Texas Constitution provides:

"No citizen of this State shall be deprived of life, liberty, property, privileges or
immunities, or in any manner disfranchised, except by the due course of the law
of the land."
Article 1, 3, of the Texas Constitution provides in pertinent part:
"All free men, when they form a social compact, have equal rights. . . ."

15

"Review of a judgment which we cannot disturb, because it rests adequately

upon a basis not subject to our examination, would be an anomaly."

16

If this contention is correct, we may review the Court of Appeals' interpretation

of federal law. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.
562, 568, 97 S.Ct. 2849, 2853, 53 L.Ed.2d 965; Mental Hygiene Dept. v.
Kirchner, 380 U.S. 194, 198, 85 S.Ct. 871, 874, 13 L.Ed.2d 753; Missouri ex
rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 5, 71 S.Ct. 1, 3, 95 L.Ed. 3;
Minnesota v. National Tea Co., 309 U.S. 551, 554-555, 60 S.Ct. 676, 678, 84
L.Ed. 920; State Tax Comm'n v. Van Cott, 306 U.S. 511, 514, 59 S.Ct. 605,
606, 83 L.Ed. 950.

17

In a section of its opinion entitled "Rational Basis," the Court of Appeals twice
set forth a rational-basis test. See 630 F.2d, at 1039. In the first paragraph, the
court stated that "[t]he test requires that legislative action be rationally related
to the accomplishment of a legitimate state purpose," and cited both federal and
state decisions in support of that formulation. In the second paragraph, the court
stated that "[t]he test requires that legislation constitute a means that is
'reasonable, not arbitrary and rests "upon some ground of difference having a
fair and substantial relation to the object of the legislation . . .," ' " quoting from
a decision of the Texas Supreme Court, Texas Woman's University v.
Chayklintaste, 530 S.W.2d 927, 928 (1975), which in turn quoted from Reed v.
Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225. A number of this
Court's decisions were cited as in accord with this formulation. Although we

cannot be sure, we might reasonably infer that the second formulation of the
test represents the Court of Appeals' interpretation of Texas law.
18

Our dissenting Brethren suggest that our "view allows federal courts overruling
state statutes to avoid appellate review here simply by adding citations to state
cases when applying federal law," post, at 300 (POWELL, J., concurring in part
and dissenting in part). We are unwilling to assume that any federal judge
would discharge his judicial responsibilities in that fashion. In any event, in this
case we merely hold that the Court of Appeals must explain the basis for its
conclusion, if there be one, that the state ground is adequate and independent of
the federal ground.

19

Cf. Mental Hygiene Dept. v. Kirchner, supra, 196-197, 85 S.Ct., at 873

(footnotes omitted):
"The California Supreme Court did not state whether its holding was based on
the Equal Protection Clause of the Fourteenth Amendment to the Constitution
of the United States or the equivalent provisions of the California Constitution,
or both. While we might speculate from the choice of words used in the
opinion, and the authorities cited by the court, which provision was the basis
for the judgment of the state court, we are unable to say with any degree of
certainty that the judgment of the California Supreme Court was not based on
an adequate and independent nonfederal ground. This Court is always wary of
assuming jurisdiction of a case from a state court unless it is plain that a federal
question is necessarily presented, and the party seeking review here must show
that we have jurisdiction of the case. Were we to assume that the federal
question was the basis for the decision below, it is clear that the California
Supreme Court, either on remand or in another case presenting the same issues,
could inform us that its opinion was in fact based, at least in part, on the
California Constitution, thus leaving the result untouched by whatever
conclusions this Court might have reached on the merits of the federal question.
For reasons that follow we conclude that further clarifying proceedings in the
California Supreme Court are called for under the principles stated in
Minnesota v. National Tea Co., 309 U.S. 551. [60 S.Ct. 676, 84 L.Ed. 920]"

I agree that this issue has not been mooted by the city's revision of the
ordinance. This conclusion is not inconsistent with our recent disposition of
Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855
(per curiam ). In that case, Princeton University's regulations governing
solicitation and similar activity on University property were held invalid by the
New Jersey Supreme Court. While the case was pending before the New Jersey
court, Princeton substantially amended the contested regulations. On appeal to
this Court, we held that the validity of the old regulations had become a moot

issue. Unlike the city of Mesquite, Princeton gave no indication that it desired
to return to the original regulatory scheme and would do so absent a judicial
barrier. In this case, as noted in the Court's opinion, Mesquite "has announced
just such an intention." Ante at 289, n. 11. Because the test of whether the
cessation of allegedly illegal action moots a case requires that we evaluate the
likelihood that the challenged action will recur, County of Los Angeles v. Davis,
440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979), it is on this basis that our
disposition of the two cases is consistent.
1

630 F.2d 1029, 1038-1039 (CA5 1980):

"We hold that the seventeen year old age requirement violates both the United
States and Texas constitutional guarantees of due process of law, and that the
application of this age requirement to coin-operated amusement centers violates
the federal and Texas constitutional guarantees of equal protection of the law"
(footnotes omitted).

Tex.Const., Art. I, 3 ("All free men, when they form a social compact, have
equal rights . . .") and 19 ("No citizen of this State shall be deprived of life,
liberty, property, privileges or immunities, or in any manner disfranchised,
except by the due course of the law of the land").

See also Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660
(1979) (reaching federal issues when interpretation of State Constitution
depends on federal law); Cicenia v. Lagay, 357 U.S. 504, 507, n.2, 78 S.Ct.
1297, 1299, n.2, 2 L.Ed.2d 1523 (1958) (After looking at record and opinion
below, Court concludes that State Supreme Court's dismissal appears to be
based on federal ground); Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89
L.Ed. 398 (1945) (The only cited sources for an independent state ground are
considered insubstantial by the Court; Court proceeds to merits of federal
issue); New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 69, 49 S.Ct. 61, 63,
73 L.Ed. 184 (1928) (Given that State Constitution has no Equal Protection
Clause, Court concludes that federal law must have been determinative).
In Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789 (1945), the lower
court dismissed complaints with no indication of whether the dismissal was
based on state or federal law. The Court continued the cases pending
clarification of the lower court's decisional basis. In announcing this outcome,
the Court stated that it would not review a judgment of a state court "until the
fact that [the decision] does not [rest on an adequate and independent state
ground] appears of record." Id., at 128, 65 S.Ct., at 464. Pitcairn did not,
however, adopt the rigid rule the Court apparently adopts today. The Court
continued to be willing to look at available record evidence (none was available

in Pitcairn ) to determine whether the decision below was based on an adequate

and independent state ground. See Cicenia v. Lagay, supra; Konigsberg v. State
Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957).
4

The Court reports that the Court of Appeals cited four Texas cases, but one case
was cited as procedural history in the dispute between these parties, not as
relevant to any question of Texas law. See 630 F.2d, at 1034, n.8.

Fritz was decided on December 9, 1980; as the Court of Appeals had decided
this case on November 17, 1980, it could not have been influenced by Fritz.

This Court has never rejected either Royster Guano or Reed v. Reed. As stated
in Fritz, "[t]he most arrogant legal scholar would not claim that all [Supreme
Court] cases appl[y] a uniform or consistent test under equal protection
principles." 449 U.S., at 177, n.10, 101 S.Ct., at 460, n.10. In view of the
example we have set, there is no reason to perceive inferences of divergent
federal- and state-court views because of the failure of the Court of Appeals or
Texas courts to use entirely consistent terminology.
Moreover, after its generalizations as to rational-basis analysis, the Court of
Appeals for the Fifth Circuit went on to say that even if "the challenged
ordinance had a rational basis . . . we would nevertheless be compelled to strike
it down" as an infringement of the fundamental right of association. 630 F.2d,
at 1041. No less than 29 federal cases were cited for this conclusion. No Texas
case was cited. Id., at 1041-1044.

This includes the entire discussion of the rational-basis standard of review by

the Court of Appeals. 630 F.2d, at 1039. It is this portion of the Court of
Appeals' opinion that the Court today relies on for saying that "it is surely not
evident that the Texas standard and the federal standard are congruent." Ante, at
294. See supra, at 301-302, and n.6.