Motion to dismiss — Supermarkets General Corp. v. Maryland

i FILED

i JUN 4 1980

tap, WA

ee Tere NGHAEL RODAK, JRey

Supreme Court of the United States

OctToserR TERM, 1979

No. 79-1483

SUPERMARKETS GENERAL CORPORATION 17/a

HOCHSCHILD KOHN DEPARTMENT STORE,

Appellant,

STATE OF MARYLAND

Appellee.

On APPEAL FROM THE

Court oF APPEALS OF MARYLAND

MOTION TO DISMISS OR AFFIRM

STEPHEN H. Sacus,

Attorney General of Maryland,

WituiaM H. Kenety,

Assistant Attorney General

of Maryland,

One South Calvert Building,

Baltimore, Maryland 21202.

(301) 383-3794

The Daily Record Co., Baltimore, MD 21202 : SS 3

TABLE OF CONTENTS

ON , SED LN IRE I TET Rr eC

LO ERS eS EELS ee es Eel Me Cicer et

TABLE OF CITATIONS

Cases

Atlantic Department Store, Inc. v. State’s Attor-

ney for Prince George’s County, 22 Md. App.

SSL, TES A.BA GUT (IGF ES) © vvscvnessscsocsssensevsonecazens

Brown Enterprises, Inc. v. Fulton, 192 N.W.2d

FEE I SEE Moekicntuksceeiteclieceepaeaiacemn

Caiola v. City of Birmingham, 288 Ala. 486, 262

Ne te CPE” tiscnsadeeLnaatcaanmnadetnaaonale

Caldor’s, Inc. v. Bedding Barn, Inc., 47 U.S.L.W.

2669 (Conn. 10 April, 1979) ou.........ecesssseeees

City of Bismarck v. Materi, 177 N.W.2d 530

SORA PE Sct tiinssuinisvtacenindenatonicdiaia team

City of New Orleans v. Dukes, 427 U.S. 297

SANT . sssvatinaneriealcthasdsassncaabdledenschkeamisoaaaiaadt a

Dart Drug Corp. v. Hechinger Co., Inc. 272 Md.

Bis Se Pe FD CIB GE) vocscvindocctivesnintsersaseionsts

Exxon Corp. v. Governor of Maryland, 437 U.S.

ETS MEE - seukcklg uovcensentimuacceindtinwedamandua cium

Genesco, Inc. v. J.C. Penney Co., Inc., 313 So.2d

Be I: PIED bi dstnicccsicnnc ssiuctenesawietecanneaieeniennt

Giant of Maryland, Inc. v. State’s Attorney for

Prince George’s County, 267 Md. 501, 298

A.2d 427, appeal dismissed, 412 U.S. 915

CIIPTAED - scatievsicnnesxcheimebebdeiastanteibcain caste ciascisabiiiaaamniies

Gibson Products Co., Inc. v. State, 545 S.W.2d

128 (Tex. 1976), cert. denied, 431 U.S. 955

PIU “inciabuptschicsieh ncserckiedninedbamemaaeiediiehlaamanen

2,3

ii

Griffin v. School Board of Prince Edward County,

I I sc scccccsenencsscscccsencccecconcees

Hayes v. Missouri, 120 U.S. 68 (1887) ................

Hogan v. Rosenberg, 24 N.Y.2d 207, 299

N.Y.S.2d 424, 247 N.E.2d 260 (1969), rev’d on

other grounds sub. nom. Baldwin v. New

a

Kroger Co. v. O'Hara Township, 481 Pa. 101, 392

Nee csesnscbondendsccccoscnccees

Malibu Auto Parts v. Commonwealth, 218 Va.

46S, Z37 S.TE.2e TEZ (UGT7Z) ........ccccccccccccccccccess

Mapp. v. Ohio, 367 U.S. 643 (1961) ...c..ccccseesseeee

Mathis v. North Carolina, 266 F. Supp. 841

Neen ics. csssasasacssiesnssscvenssasss

McGowan v. Maryland, 366 U.S. 420 (1961) ......

McGowan v. State, 220 Md. 117, 151 A.2d 156

Ne scscsnsnvarecccccceccces

Missouri v. Lewis, 101 U.S. 22 (1880) ......00..0000...

Muzquiz v. City of San Antonio, 378 F. Supp. 949

Neen eT css sss csdsccseeconseubnsnscccsscsvevees

Ness v. Supervisors of Elections, 162 Md. 529,

Ne. scanccnencceccsens

People v. Abrahams, 40 N.Y.2d 277, 353 N.E.2d

ss scaneonenenenonsncees

Rebe v. State’s Attorney for Prince George’s

County, 262 Md. 350, 277 A.2d 616 (1971) ...

Richards Furniture Corp. v. Anne Arundel Board

of County Commissioners, 233 Md. 249, 196

Neen sic dadsncessevisesonvesscesescess

Salsburg v. Maryland, 346 U.S. 545 (1954) ........

Solomon v. South Carolina, 245 S.C. 550, 141

S.E.2d 818, appeal dismissed, 382 U.S. 204

Nee cs ssnscsconsssicosenovesccoees

PAGE

4

passim

iii

Spartan’s Industries, Inc. v. State, 447 S.W.2d

407 (Tex.), appeal dismissed, 397 U.S. 590

CRAIN osiceckicecscssvetaatentalnicienleeetscaabutbnsabaciahiehemtaddadaaece

Sundaco, Inc. v. State, 445 S.W.2d 606 (Tex.),

appeal dismissed, 397 U.S. 591 (1970) ..........

Supermarkets General v. State, 286 Md. 611, 409

pe RS Rm re er 9

State v. Giant of St. Alban’s Inc., 128 Vt. 539,

SE Re, PI CIID aiitensdinientacpsnataMictlaenticennsains

State v. Maryland Club, 105 Md. 585, 66 A. 667

CRE scobbdssedsictsoustabicniaensiebinen tbc caurs teccmcamadealast

Steimel v. Board of Election Supervisors, 278 Md.

eee Gee ST Sidteistieartiieitiees

Vornado, Inc. v. Hyland, 77 N.J. 347, 390 A.2d

ee SE. usc a bith cvisensteaiiradadetatunbagensscter

Whitney Stores, Inc. v. Summerford, 280 F. Supp.

406 (D.S.C.), affd, 393 U.S. 9 (1968) ....000......

Zayre Corp. v. Attorney General, 372 Mass. 423,

BAM EU GRE FP. Soiesdecensccntnsentoiinertbevaersanees

Zayre of Georgia, Inc. v. City of Marietta, 416

F.2d 251 (5th Cir. 1969), cert. denied, 397

Se EE ITED shana tasninsseaevddbeceaedaeaacedeunaiiveotecs

PAGE

In THE

Supreme Court of the United States

OctosBer TERM, 1979

No. 79-1483

SUPERMARKETS GENERAL CORPORATION 1/a

HOCHSCHILD KOHN DEPARTMENT STORE,

Appellant,

Vv.

STATE OF MARYLAND

Appellee.

On APPEAL FROM THE

Court oF APPEALS OF MARYLAND

MOTION TO DISMISS OR AFFIRM

Appellee, pursuant to Rule 16 of the Rules of the

Supreme Court, moves that the decision of the Court of

Appeals of Maryland be affirmed on the ground that the

question is so unsubstantial as not to warrant further

argument.

STATEMENT

On 13 December, 1978, Appellant was charged with

operating a retail business establishment on Sunday in

violation of Article 27, Section 534N of the Annotated

Code of Maryland. On 9 April, 1979 Appellant was

convicted in the Circuit Court of Maryland for Anne

Arundel County. A writ of certiorari was granted by the

2

Maryland Court of Appeals before argument and decision

in the Maryland Court of Special Appeals. In an opinion

filed 24 December, 1979, the Maryland Court of Appeals

unanimously affirmed Appellant’s conviction and found

that the provisions of Article 27, Section 534N did not

violate the United States Constitution. That opinion is

reported at 286 Md. 611, 409 A.2d 250 and is reprinted in

the appendix of Appellant’s jurisdictional statement.

ARGUMENT

The Court of Appeals of Maryland was clearly correct in

finding that the provisions of Article 27, Section 534N did

not offend the United States Constitution. The decision

was but one holding in a long line of Maryland cases

affirming directly or indirectly the constitutionality of the

State’s Sunday closing laws.'

This Court considered the constitutionality of Mary-

land’s Sunday closing laws in McGowan v. Maryland, 366

U.S. 420 (1961). In that decision this Court noted that the

Sunday closing laws contained “a myriad of exceptions for

various counties, districts of counties, cities and towns

throughout the state”, Jd. at 424, and went on to hold that

“the Fourteenth Amendment permits the State a wide

scope of discretion in enacting laws which affect some

' See Steimel v. Board of Education, 278 Md. 1, 357 A.2d 386

(1976), Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 320 A.2d

266 (1974); Giant of Maryland, Inc. v. State’s Attorney for Prince

George’s County, 267 Md. 501, 298 A.2d 427, appeal dismissed,

412 U.S. 915 (1973), Rebe v. State’s Attorney for Prince George’s

County, 262 Md. 350, 277 A.2d 616 (1971); Richards Furniture

Corp. v. Anne Arundel County Board of County Commissioners,

233 Md. 249, 196 A.2d 621 (1964); McGowan v. State, 220 Md.

117, 151 A.2d 156 (1959); Ness v. Supervisors of Elections, 162

Md. 529, 160 A. 8 (1932); State v. Maryland Club, 105 Md. 585,

66 A. 667 (1907); and Atlantic Department Stores v. State's

Attorney for Prince George’s County, 22 Md. App. 381, 323 A.2d

617 (1974).

3

groups of citizens differently than others”, Jd. at 425. This

Court further explained its decision by saying that:

. . .We have held that the Equal Protection Clause

relates to equality between persons as such, rather

than between areas and that territorial uniformity is

not a constitutional prerequisite. With particular

reference to the State of Maryland, we have noted

that the prescription of different substantive offenses

in different counties is generally a matter for legisla-

tive discretion, we find no invidious discrimination

here; citing Salsburg v. Maryland, 346 U.S. 545

(1954).

Id. at 427.

In an oft-cited concurring opinion on the history and

purposes of Sunday blue laws, Justice Frankfurter took

note of cases “sustaining state statutes applicable in some,

but not all, localities . . .” 366 U.S. at 532 N. 135, and

stated:

Many of the jurisdictions which have Sunday laws

provide some form of local option procedure for the

creation of exceptions. This is only to recognize the

obvious fact that conditions of limited geographical

range may be determinative in striking the balance of

forbidden and permissible Sunday activity which best

accords with popular habits and desires. In Maryland

the State Legislature itself does the job of adapting

the general state-wide law to the local circumstances.

This difference in method can scarcely entail different

federal constitutional consequences.

Id. at 537 N. 138.

Since that decision, this Court has consistently summar-

ily affirmed decision upholding Sunday closing laws, or

dismissed appeals of such decisions or denied certiorari.’

* See, eg., Giant of Maryland, Inc. v. State’s Attorney for

Prince George’s County, 267 Md. 501, 298 A.2d 427, appeal

dismissed, 412 U.S. 915 (1973); Spartan’s Industries, Inc v. State,

447 S.W.2d 407 (Tex.), appeal dismissed, 397 U.S. 590 (1970);

Sundaco, Inc. v. State, 445 S.W.2d 606 (Tex.), appeel dismissed,

397 U.S. 591 (1970); Zayre of Georgia, Inc. v. City of Marietta, 416

4

Appellant claims that since the Maryland statutory

scheme provides for different Sunday closing laws for

different counties the precepts of the United States

Constitution are violated. This Court has long held that

there need not be uniformity of law as between political

subdivisions. ,

McGowan v. Maryland, 366 U.S. 420 (1961) upheld a

statute permitting Sunday sales of certain items in Anne

Arundel County but prohibiting such sales elsewhere. This

Court wrote:

Although no precise formula has been developed, the

Court has held that the Fourteenth Amendment

permits the States a wide scope of discretion in

enacting laws which affect some groups of citizens

differently than others. The constitutional safeguard

is offended only if the classification rests on grounds

wholly irrelevant to the achievement of the State’s

objective. State legislatures are presumed to have

acted within their constitutional power despite the

fact that, in practice, there laws result in some

inequality. A statutory discrimination will not be set

aside if any state of facts reasonably may be conceived

to justify it.

366 U.S. at 425-426.

In McGowan v. Maryland, supra, this Court also clearly

stated “we have held that the Equal Protection Clause

relates to equality between persons as such, rather than

between areas and that territorial uniformity is not a

constitutional prerequisite”,’ 366 U.S. at 427. This Court

F.2d 251 (5th Cir. 1969), cert. denied, 397 U.S. 918 (1970);

Whitney Stores, Inc. v. Summerford, 280 F. Supp. 406 (D.S.C.),

affd, 393 U.S. 9 (1968); Solomon v. South Carolina, 245 S.C.

550, 141 S.E.2d 818, appeal dismissed, 382 U.S. 204 (1965).

* There is some authority that equal protection principles

simply do not apply if classifications are based on geographical

factors, Hogan v. Rosenberg, 24 N.Y.2d 207, 299 N.Y.S.2d 424,

247 N.E.2d 260 (1969), rev’d on other grounds sub. nom. Baldwin

v. New York, 399 U.S. 66 (1970), Mathis v. North Carolina, 266

F. Supp. 841 (M.D.N.C. 1967). See also Muzquiz v. City of San

Antonio, 378 F. Supp. 949 (W.D. Tex. 1974).

5

referred to Salsburg v. Maryland, supra, in which it had

stated that “The Equal Protection Clause relates to

equality between persons as such rather than between

areas” “was established long ago” in Missouri v. Lewis, 101

U.S. 22 (1880), 346 U.S. at 551. In upholding a statute

providing for a state appellate court system that differed

between counties, this Court had said in Missouri v. Lewis:

[T]here is nothing in the Constitution to prevent

any State from adopting any system of laws or

judicature it sees fit for all or any part of its territory.

If the State of New York, for example, should see fit to

adopt the civil law and its method of procedure for

New York City and the surrounding counties, and the

common law and its method of procedure for the rest

of the State, there is nothing in the Constitution, of

the United States to prevent its doing so. This would

not, of itself, within the meaning of the Fourteenth

Amendment, be a denial to any person of the equal

protection of the laws. * * * It means that no person

or class of persons shall be denied the same protection

of the laws which is enjoyed by other persons or other

classes in the same place and under 'ike circum-

stances.

101 U.S. at 31. See also Hayes v. Missouri, 120 U.S. 68

(1887), rejecting an equal protection attack on a state

statute providing for a different number of peremptory

challenges in capital cases depending on the location of the

trial.

Prior to McGowan this Court had considered an analo-

gous Maryland statutory scheme in Salsburg v. Maryland,

346 U.S. 545 (1954). That decision concerned a statute

permitting illegally seized evidence to be used in gambling

misdemeanor prosecutions in Anne Arundel County.‘

Similar evidence could not be used elsewhere in the State.

‘ At that time the exclusionary rule was not yet applicable to

the states and hence each state could determine its own rules

with respect to illegally acquired evidence. Such a statute could

not now stand in light of Mapp v. Ohio, 367 U.S. 643 (1961).

6

The Court quoted Missouri v. Lewis extensively and found

that the law did not violate the equal protection clause. It

noted that:

There seems to be no doubt that Maryland could

validly grant home rule to each of its 23 counties and

to the City of Baltimore to “etermine this rule of

evidence by local option. It is equally clear, although

less usual, that a state legislature may itself deter-

mine such an issue for each of its local subdivisions,

having in mind the needs and desires of each.

Territorial uniformity is not a constitutional re-

quisite. Ocampo v. United States, 234 U.S. 91, 98-99.

346 U.S. at 552.

More recently in Griffin v. School Board of Prince

Edward County, 372 U.S. 218 (1964), this Court noted

again that “[A] State, of course, has wide discretion in

deciding whether laws shall operate statewide or shall

operate only in certain counties, the legislature ‘having in

mind the needs and desires of each.’” 377 U.S. at 231.

In determining whether the State’s Sunday closing laws

had a rational basis, the Maryland Court of Appeals held

that the changes in the statutory scheme allowing for

different laws applicable in different counties did not

render the statute(s) unconstitutional. The Court of

Appeals wrote:

. we conclude that the amendments since McGo-

wan do not destroy their rational! basis so as to render

them essentially arbitrary. The evidence here

adduced, such as demographic studies, the Maryland

Statistical Abstract of 1977 and affidavits of various

persons, for example, from residents of Baltimore

County, that they shopped on Sunday in counties

where stores were open and that they would have

shopped in Baltimere County stores on Sunday had

they been open, does not persuade us that the statutes

now lack a rational basis. The short of it is that as we

read McGowan the purpose of providing a day on

7

which there shall be a lesser degree of business

activity is a valid reason for Sunday closing laws, and

the fact that persons in different areas of the State

have different desires and needs with respect to the

extent of business activity in their areas does not

create unreasonable classifications. Consequently, the

desire of populace of a few counties to have no

reduction in commercial activity on Sunday whatsoev-

er, does not, under the principles of McGowan, require

any different result.

286 Md. at 623-624, 409 A.2d at 257.

In essence, the words of Justice Frankfurter in

McGowan nearly two decades ago point up the defect in

Appellant’s case and the justification for the Maryland

statutes:

There is presented in this record not a trace of

evidence as to the habits and customs of the popula-

tion of Maryland or of Anne Arundel-County, nothing

that suggests that the pattern of legislation which

their representatives have devised is not reasonably

related to local circumstances determining their ways

of life. Appellants have wholly failed to meet their

burden of proof.

366 U.S. at 536-37.°

This Court has consistently ejected appeals and petitions

urging it to review Sunday closing laws in various cases.°

Although three State courts have invalidated their own

state Sunday closing laws, they did so on a basis not

’ There was some evidence of the habits of the residents of

Baltimore County introduced during the trial of one of Appel-

lant’s co-appellants in the Maryland Court of Appeals. There

was, however, no evidence of the habits of the people of Anne

Arundel County.

® See footnote 2, supra.

8

present in this case.’ The overwhelming majority of state

courts have upheld the constitutionality of Sunday closing

laws.®

This Court has written that “[w]hen local economic

regulation is challenged solely as violating the Equal

Protection Clause, this Court consistently defers to legisla-

tive determinations as to the desirability of particular

statutory distinctions”, City of New Orleans v. Dukes, 427

U.S. 297, 303 (1976). This is because

States are accorded wide latitude in the regulation of

their local economies under their police powers, and

rational distinction may be made with substantially

less than mathematical exactitude. . . . in the local

economic sphere, it is only the invidious discrimina-

tion, the wholly arbitrary act, which cannot stand

consistently with the Fourteenth Amendment.

427 U.S. at 303-04. It has further noted that it is by now

absolutely clear that the Due Process Clause does not

empower the judiciary “to sit as a superlegislature to

weigh the wisdom of legislation, Ferguson v. Skrupa, 372

” Caldor’s, Inc. v. Bedding Barn, Inc., 40 Conn. L. J. 41, 47

U.S.L.W. 2669 (Conn. 10 April, 1979), Kroger Co. v. O’Hara

Township, 481 Pa. 101, 392 A.2d 266 (1978), and People v.

Abrahams, 40 N.Y.2d 277, 353 N.E.2d 574 (1976) all concerned

differences in commodities available for sale not territorial

distinctions.

® See, e.g., Vornado, Inc. v. Hyland, 77 N.J. 347, 390 A.2d 606

(1978); Malibu Auto Parts v. Commonwealth, 218 Va. 453, 237

S.E.2d 782 (1977); Zayre Corp. v. Attorney General, 372 Mass.

423, 362 N.E.2d 878 (1977); Gibson Products Company, Inc. v.

State, 545 S.W.2d 128 (Tex. 1976), cert. denied, 431 U.S. 955

(1976); Genesco, Inc. v. J.C. Penney Co., Inc., 313 So.2d 20 (Miss.

1975); Caiola v. City of Birmingham, 288 Ala. 486, 262 So.2d 602

(1972); Brown Enterprises, Inc. v. Fulton, 192 N.W.2d 773 (lowa

1972); State v. Giant of St. Alban’s, Inc., 128 Vt. 539, 268 A.2d

739 (1970); and City of Bismarck v. Materi, 177 N.W.2d 530

(N.D. 1970). Vornado, Malibu Auto Parts, Caiola, and Materi all

involve some form of territorial distinction as to the applicability

of Sunday closing laws.

9

U.S. 726, 731,” Exxon Corp. v. Governor of Maryland, 437

U.S. 117, 124 (1978).

As there is a rational basis for providing different laws

for different geographical areas of Maryland, the Mary-

land Court of Appeals properly found the Sunday closing

laws constitutional and correctly suggested that if the laws

were to be modified, the General Assembly of Maryland

had the power and the means to do so.°

Appellee respectfully submits that this appeal does not

present a substantial question and requests that the

decision of the Maryland Court of Appeals be affirmed.

Respectfully submitted,

STEPHEN H. Sacus,

Attorney General of Maryland,

WituiaM H. Kenety,

Assistant Attorney General

of Maryland,

One South Calvert Building,

Baltimore, Maryland 21202.

(301) 383-3794

* The General Assembly has already done so. During the 1980

legislative session, the General Assembly enacted legislation

that established a generally uniform Sunday closing law that

would apply to Anne Arundel County, Howard County, Balti-

more County and Baltimore City. A key feature of this

legislation was the provision that “suspended” its operation on

the four Sundays preceding Christmas. The Governor of Mary-

land signed this legislation on 27 May, 1980.