NEW YORK v. UPLINGER et al.
No. 82-1724.
Argued January 18, 1984
Decided May 30, 1984
Richard J. Arcara argued the cause for petitioner. With him on the briefs were John J. DeFranks and Louis A. Haremski.
William H. Gardner argued the cause for respondents. With him on the brief for respondent Uplinger was Thomas F. Coleman. Rose H. Sconiers and Joseph B. Mistrett filed a brief for respondent Butler.
Briefs of amici curiae urging affirmance were filed for the American Association for Personal Privacy et al. by Melvin L. Wulf and David A. J. Richards; for the American Civil Liberties Union et al. by Steven R. Shapiro, BurtNeubome, and Charles S. Sims; for the American Psychological Association et al. by Margaret Farrell Ewing, Bruce J. Ennis, and Donald N. Bersoff; for the Committee on Sex and Law of the Association of the Bar of the City of New York et al. by Mark H. Leeds, Michael A. Bamberger, John H. Doyle III, and Edward M. Shaw; and for the Lambda Legal Defense and Education Fund, Inc., by Mary C. Dunlap, Abby R. Rubenfeld, and Nan D. Hunter.
Briefs of amici curiae were filed for the Attorney General of the State of New York by Robert Abrams, Attorney General, pro se, and Rosemarie Rhodes, Lawrence S. Kahn, and Jane Levine, Assistant Attorneys General; for the Center for Constitutional Rights et al. by Rhonda Copelon and Anne E. Simon; and for the National Association of Business Councils et al. by Laurence R. Sperber and Jay M. Kohom.
Per Curiam.
We granted certiorari, 464 U. S. 812 (1983), to review a decision of the New York Court of Appeals concerning N. Y. Penal Law §240.35(3) (McKinney 1980), which prohibits loitering “in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature.” Respondents, charged with violating the statute, challenged its constitutionality and the Court of Appeals sustained their claim. 58 N. Y. 2d 936, 447 N. E. 2d 62 (1983). The court concluded that § 240.35(3) is “a companion statute to the consensual sodomy statute . . . which criminalized acts of deviate sexual intercourse between consenting adults” and noted that it had previously held the latter statute unconstitutional in People v. Onofre, 51 N. Y. 2d 476, 415 N. E. 2d 936 (1980), which we declined to review, see 451 U. S. 987 (1981). 58 N. Y. 2d, at 937-938, 447 N. E. 2d, at 62-63. Construing the loitering statute as intended “to punish conduct anticipatory to the act of consensual sodomy,” the Court of Appeals reasoned that “[i]nasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose.” Id., at 938, 447 N. E. 2d, at 63.
Petitioner challenges the decision of the Court of Appeals on the ground that the loitering statute is a valid exercise of the State’s power to control public order. Respondents, on the other hand, defend the decision by arguing that the statute is unconstitutionally vague and overbroad on its face and that, as applied, it violates their First Amendment, equal protection, and due process rights. We decline to address these arguments, however, because examination of the case, after full briefing and oral argument, has convinced us that the writ of certiorari was improvidently granted. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959).
As the diverse arguments presented in the briefs have demonstrated, the opinion of the Court of Appeals is fairly subject to varying interpretations, leaving us uncertain as to the precise federal constitutional issue the court decided. Moreover, whatever the constitutional basis of the Court of Appeals’ decision, it was clearly premised on the court’s earlier decision in People v. Onofre, supra, and for that reason a meaningful evaluation of the decision below would entail consideration of the questions decided in that case. Petitioner does not, however, challenge the decision of the New York Court of Appeals in that case. See Brief for Petitioner 2. Cf. Pet. for Cert. 6, n. 1.
Under these circumstances, we are persuaded that this case provides an inappropriate vehicle for resolving the important constitutional issues raised by the parties. We therefore dismiss the writ of certiorari as improvidently granted.
It is so ordered.
Petitioner, the State of New York, is represented in this Court by the District Attorney for Erie County, N. Y., the prosecutor who brought the criminal charges against respondents. After certiorari was granted, however, the Attorney General of the State of New York filed a brief as ami-cus curiae, urging us to conclude that the loitering statute as applied in this ease violates respondents’ federal constitutional rights to freedom of speech and privacy but suggesting that the court below erred in striking down the statute on its face.
The allocation of authority among state officers to represent the State before this Court is, of course, wholly a matter of state concern. As our Rule 36.4 indicates, however, in addressing the constitutionality of a statute with statewide application we consider highly relevant the views of the State’s chief law enforcement official. The fundamental conflict in the positions taken by petitioner and the New York Attorney General, a circumstance which was “not manifest or fully apprehended at the time certiorari was granted,” Ferguson v. Moor e-McCormack Lines, 352 U. S. 521, 559 (1957) (Harlan, J., concurring and dissenting), provides a strong additional reason for our conclusion that the grant of certiorari was improvident. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959).
Under one fair reading of the opinion below, we may not even have jurisdiction to review the Court of Appeals’ decision. See Dorchy v. Kansas, 264 U. S. 286, 290 (1924). The New York court determined, as a matter of state law, that the statute prohibits speech, whether harassing or not, anticipatory to consensual sodomy. Accordingly, the court’s holding might be based on a conclusion that as a matter of state law, the statute at issue here was intended only to provide an additional means of enforcing the statute struck down in Onofre and therefore was not severable from that statute. See 58 N. Y. 2d, at 937-938, 447 N. E. 2d, at 62-63 (“[I]t is apparent from the wording of this statute that it was aimed at proscribing overtures, not necessarily bothersome to the recipient, leading to what was, at the time the law was enacted, an illegal act”).
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