APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, Rehnquist, and O'connor, JJ., joined. White, J., post, p. 296, and Powell, J., post, p. 297, filed opinions concurring in part and dissenting in part.
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.*fn1 Section 6 of Ordinance 1353, which directs the Chief of Police to consider whether a license applicant has any "connections with criminal elements,"*fn2 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,*fn3 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.*fn4 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.*fn5
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.*fn6 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.*fn7 As already noted, the Court of Appeals affirmed the former holding and reversed the latter.
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, 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.*fn8
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.*fn9 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.*fn10 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.*fn11 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 (emphasis
added).*fn12 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 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 summary*fn13 that the phrase "connections with criminal elements," as used in this ...