# Motion to dismiss — Supermarkets General Corp. v. Maryland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to dismiss
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 801

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2228%3A2. Public record. Not legal advice.