Benderson Development Co., Inc. v. Sciortino

Decision Date23 September 1988
Docket NumberNo. 850938,850938
Citation236 Va. 136,372 S.E.2d 751
CourtVirginia Supreme Court

I. Michael Greenberger (Becky Powhatan, Scott R. McIntosh, Shea & Gardner, Willcox & Savage, P.C., on briefs), for appellants.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

International Council of Shopping Centers (Edward C. Maeder, John R. Keys, Jr., Winston & Strawn, on brief), amicus curiae for appellants.

Retail Merchants Ass'n of Tidewater, Virginia, Inc. (David F. Peters, Mary Jo Leugers, Hunton & Williams, on brief), amicus curiae for appellees.

Present All the Justices.

RUSSELL, Justice.

This appeal challenges Virginia's Sunday-closing laws. The challenge is based upon the prohibitions against "special laws" contained in the Constitution of Virginia. Eight corporations doing business in Virginia Beach (six retail merchants and two real estate development companies operating shopping centers) (the plaintiffs), 1 filed a motion for declaratory judgment in the circuit court. They alleged that they are compelled to close their retail stores in the City of Virginia Beach every Sunday due to the Sunday-closing laws, with which they comply. At the same time, they say, a number of their competitors selling identical products are exempt from the operation of those laws and therefore do business in Virginia Beach on Sundays, to the plaintiffs' great competitive disadvantage.

Although they raise additional federal constitutional questions, the plaintiffs' primary contention is that the Sunday-closing laws, as applied to them, constitute special legislation violating Article IV, sections 14 and 15, of the Constitution of Virginia. They named as sole defendant Paul A. Sciortino, Commonwealth's Attorney of the City of Virginia Beach. The defendant filed a demurrer and grounds of defense. The plaintiffs filed a motion for summary judgment, and the case was submitted to the trial court as a question of law. The court issued a letter opinion upholding the constitutionality of the laws in question and, on September 12, 1985, entered a final order denying the plaintiffs' motion for summary judgment, sustaining the defendant's demurrer, and dismissing the case.

Seven of the eight plaintiffs petitioned for an appeal, which we granted. The motion for judgment contains an unusally detailed recital of facts which we take as true for the purpose of reviewing the trial court's ruling on demurrer. In his grounds of defense, the defendant admits all facts essential to our decision. Because the matter was before the trial court on a motion for summary judgment, as well as on demurrer, and because no material facts are in dispute, we will proceed to final judgment here. Code § 8.01-681.

Virginia has had a Sunday observance law since at least 1610, Mandell v. Haddon, 202 Va. 979, 988, 121 S.E.2d 516, 523 (1961), and during the Colonial period, probably was subject to English Sunday laws dating from the thirteenth century. Bonnie BeLo v. Commonwealth, 217 Va. 84, 85, 225 S.E.2d 395, 396 (1976). During the Colonial period, these laws had a religious purpose, requiring every man and woman to " 'repair in the morning to the divine service.' " Mandell, 202 Va. at 988, 121 S.E.2d at 523 (citation omitted). During the Revolutionary War, in 1779, a Sunday-closing law was substituted which had an entirely secular purpose. It simply prohibited all Sunday labor or business except for "work of necessity or charity." 12 Hen.Stat. 336, 337 (1779). The purpose of the law was merely to provide a common day of rest "to prevent the physical and moral debasement which comes from uninterrupted labor." Mandell, 202 Va. at 988, 121 S.E.2d at 524 (citations omitted).

The 1779 law survived with only minimal change until 1960. Code of 1950, § 18-329 (repealed, Acts 1960, c. 358). While it was in force, the courts were confronted with numerous questions requiring interpretation of the phrase "works of necessity or charity."

In 1960, the General Assembly substantially revised the former law. The 1960 version continued a general prohibition against Sunday "work, labor, or business ... except in household or other work of necessity or charity." A list of some 30 items, the sale of which was expressly deemed not to be a work of necessity or charity, was appended, thus proscribing Sunday sales of those items. The statute also included specific exemptions for certain items expressly deemed to be works of necessity, such as the operation of furnaces and plants, the sale of newspapers and motor fuels, and the operation of recreational facilities.

In Mandell v. Haddon, we upheld the 1960 law against constitutional challenges which invoked both the special legislation prohibition of the Virginia Constitution and the Equal Protection clause of the Fourteenth Amendment to the Federal Constitution. In Mandell, we reviewed the principles governing our review of a statute attacked as special legislation. We noted that the constitutional provisions against special legislation do not prohibit legislative classification, but do require that classifications be "natural and reasonable, and appropriate to the occasion." 202 Va. at 989, 121 S.E.2d at 524. When a statute is challenged under the special legislation prohibition, we must determine whether the act makes an "arbitrary separation," and for this we must look to the purpose of the act, as well as the circumstances and conditions existing at the time of its passage. Id. There is a strong presumption in favor of the reasonableness of legislative classifications, and if any state of facts can be reasonably conceived which would support them, the existence of that state of facts at the time of passage must be assumed. Id.

Reviewing the 1960 law under the foregoing principles, we upheld it because we found that its classifications bore a "reasonable and substantial relationship to the object sought to be accomplished by the legislation." Specifically, we observed that the act "affects all persons similarly situated or engaged in the same business throughout the State without discrimination." Id. at 991, 121 S.E.2d at 525. Although the act contained exceptions, we observed that the exceptions related to "works of necessity under the modern day conception of things." Significantly, we noted that the prohibition on the sale of specified items was sufficiently comprehensive "to close a great majority of stores" throughout the Commonwealth. Id. at 990, 121 S.E.2d at 525. Thus, the statutory scheme was reasonably related to the attainment of the legislative goal: providing the people of Virginia a common day of rest.

In 1974, the General Assembly completely rewrote the Sunday-closing law. The 1974 law, which has been frequently amended, forms the basis of present Code § 18.2-341. 2 It contains a general prohibition against Sunday labor but grants blanket exemptions to all transactions conducted by over 60 "industries or businesses" now grouped in 22 categories of exemptions. In addition to exemptions of the basic industries of agriculture, mining, and manufacturing, exemptions also cover retail stores which may engage in the sale of every conceivable kind of merchandise. The General Assembly has, on numerous occasions, added additional, and frequently broader, exemptions to those contained in the original 1974 enactment. One of these, covering "festival market places," permits a local governing body to designate, on a case-by-case basis, any privately-owned shopping center as exempt from the Sunday-closing law if it is the site of a public "gathering" and more than 50% of its sales area "is used for otherwise exempt activities." If the property is publicly-owned, even though leased for commercial use, the 50% requirement does not apply.

In 1974, the legislature enacted Code § 15.1-29.5, which permitted cities and counties, upon a favorable referendum vote, to remove themselves entirely from the operation of the Sunday-closing law. By employing this local option provision, the counties of Albemarle, Arlington, Buchanan, Chesterfield, Culpeper, Fairfax, Fauquier, Frederick, Gloucester, Grayson, Henrico, James City, King George, Loudoun, Mecklenburg, Orange, Page, Prince George, Prince William, Pulaski, Smyth, Spotsylvania, Stafford, Tazewell, Warren, and York, as well as the cities of Alexandria, Bristol, Charlottesville, Falls Church, Fredericksburg, Hopewell, Petersburg, Radford, Richmond, Waynesboro, Williamsburg, and Winchester, have chosen to remove themselves from the operation of the Sunday-closing law.

According to the undisputed facts, approximately 50% of all employed persons in Virginia work in counties and cities in which the Sunday laws are not in force. Nearly 57% of all employed persons in Virginia work in statutorily exempt businesses and industries. The parties agree that approximately 80% of Virginia workers are exempt from the operation of the law for one reason or the other.

Further, the General Assembly, as a part of the 1974 revision of the Sunday laws, enacted Code §§ 40.1-28.1 through 40.1-28.5. These provisions require employers to allow each nonmanagerial employee at least 24 consecutive hours of rest in each week. § 40.1-28.1. Such employees may choose Sunday as a day of rest as a matter of right, § 40.1-28.2, and sabbatarians may choose Saturday, § 40.1-28.3. 3

Code § 40.1-28.5, however, provides that the foregoing laws "shall not apply to persons engaged in any of the industries or businesses enumerated in § 18.2-341(a)(1) through (19), except (15) ['sale of food, ice and beverages']." Thus, employees in any of the other 60 or more businesses and industries exempted by the referenced subsections may be denied a day of rest by their employers.

We were first called upon to construe the 1974 statutory scheme in Bonnie BeLo v. Commonwealth, 217 Va. 84, 225 S.E.2d 395...

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