Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 74 C 931 Frank J. McGarr, Judge.
Stanley N. Barnes, Senior Circuit Judge,*fn* Swygert and Pell, Circuit Judges.
The broad issue presented in this appeal is the constitutionality of governmental mandatory retirement requirements.
Plaintiff was a tenured biology teacher at Thornton Fractional Township South High School who was forced to retire at age sixty-five in accordance with the School Board's written policy. The Illinois statutory provisions on tenure provide that the tenure of public school teachers shall end at sixty-five and any subsequent employment shall be on an annual basis. Plaintiff contends that the Board Policy is unconstitutional on due process grounds (irrebuttable presumption and arbitrary termination of public employment) and on equal protection grounds. Plaintiff sought injunctive relief. The district court granted the defendants' motion to dismiss. Plaintiff has appealed.
The Supreme Court has recently summarily disposed of two appeals involving the issue raised in this case. In McIlvaine v. Pennsylvania, 415 U.S. 986, 39 L. Ed. 2d 884, 94 S. Ct. 1583 (1974), the United States Supreme Court dismissed "for want of a substantial federal question" an appeal from a decision of the Pennsylvania Supreme Court*fn1 rejecting an equal protection attack against a statute mandating retirement at age sixty for Pennsylvania State Policemen. A three-judge federal district court*fn2 held that it was bound by the Supreme Court's action in McIlvaine and dismissed a constitutional challenge by a HUD attorney to the federal law mandating retirement at age seventy. The Supreme Court summarily affirmed. Weisbrod v. Lynn, 420 U.S. 940, 95 S. Ct. 1319, 43 L. Ed. 2d 420 (1975). The lower court decision in Weisbrod ruled that summary dispositions by the Supreme Court must be treated as decisions on the merits which have the force of binding precedent unless later doctrinal developments indicate otherwise. Moreover, the three-judge court held that McIlvaine was not distinguishable either on the ground that it involved an occupation dependent on physical vigor or on the basis that, unlike Weisbrod, no explicit due process - impermissible, irrebuttable presumption - claim was presented.
The preliminary issue before us is whether the decision by the Weisbrod court concerning the precedential value of Supreme Court summary dispositions is correct. It is important to determine at the outset the relevance of the fact that we are confronted with two summary dispositions by the Supreme Court, the latter of which is an affirmance of a holding that summary dispositions are binding precedent. This summary affirmance, of course, cannot be conclusive on the very question of whether summary dispositions are binding. Thus, on this precise point it makes little difference that in addition to the dismissal in McIlvaine we have the affirmance in Weisbrod. But assuming summary dispositions are to be given precedential value, then the affirmance in Weisbrod is not merely cumulative. It would be authority for the proposition that a summary disposition concerning a specific mandatory retirement law is apposite to an attack on a law involving a different type of occupation and a different retirement age.
While the theoretical problems associated with interpreting summary dispositions are complicated*fn3 and the Supreme Court itself, unfortunately, has never fully addressed the issue, there is Seventh Circuit authority squarely on point.
In Ahern v. Murphy, 457 F.2d 363 (7th Cir. 1972), this court determined that it was bound by a recent Supreme Court dismissal for want of a substantial federal question of an appeal from a Michigan Supreme Court decision holding that an ordinance similar to the one attacked in Ahern was not violative of the Equal Protection Clause. In accordance with such authority as Stern & Gressman, Supreme Court Practice (4th ed. 1969), this court held that the Supreme Court's disposition was "a decision on the merits of the case appealed." 457 F.2d at 364. Relying on a leading Second Circuit precedent it was decided that a summary disposition must be treated as dispositive precedent rather than merely persuasive:
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:
"It would be inappropriate for us to make an independent examination of the substantiality of the questions here presented since the Supreme Court has considered them not simply in a similar case but in a substantially identical one.
"We thus see no escape from the conclusion that the Supreme Court has labeled as unsubstantial the very question which constitutes plaintiffs' most likely basis for asserting federal question jurisdiction."
The Port Authority case was questioned in a student law review note, "The Significance of Dismissals 'For Want of a Substantial Federal Question,'" 68 Col.L.Rev. 785 (1968), which seemed to prefer considering the Supreme Court action as persuasive precedent rather than as dispositive. This was the approach of Two Guys From Harrison-Allentown, Inc. v. McGinley, 179 F. Supp. 944 (E.D.Pa. 1959), aff'd 366 U.S. 582, 81 S. Ct. 1135, 6 L. Ed. 2d 551 (1961).
Taking cognizance of the law review note, the Second Circuit recently stated that it would "continue to hold our considered position that 'unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.'" Heaney v. Allen, 425 F.2d 869, 871 (1970).
We agree with the Second Circuit. The alternative approach would either reach the same result, inasmuch as the Supreme Court's opinion would be extremely persuasive if not dispositive as a matter of stare decisis, or would result in endless speculation if, as some writers have suggested, courts attempted to fathom whether the Supreme Court in a particular dismissal for want of a substantial federal question did so because the claim was frivolous or was foreclosed by earlier ...