Best Products Co., Inc. v. Spaeth

• Decision Date: 06 September 1990
• Docket Number: No. 900216,900216
• Citation: Best Products Co., Inc. v. Spaeth, 461 N.W.2d 91 (N.D. 1990)
• Court: North Dakota Supreme Court
• Parties: BEST PRODUCTS CO., INC.; Creative Kitchen; Fiancee; Gallery West; McLaughlin Equipment Co., d.b.a. McLaughlin RV & Marine; Peggy's Card Shops, Inc., d.b.a. Peggy's Hallmark Shops; Ram Enterprises, d.b.a. Miller's True Value Hardware & Hanky Panky Gift Shop; West Acres Development; River Valley Press, Inc., d.b.a. Wizard of Kids; AJ Video; Coborn's, Inc., d.b.a. Cash Wise Foods; Main Realty, Inc., d.b.a. Main & Company Realtors; Metro Drug Company; Lloyd's Motors; and Rita Weisz, Plaintiffs, Appellees and Cross-Appellants, v. Nicholas J. SPAETH, North Dakota Attorney General, Defendant, Appellant and Cross-Appellee. Civ.

Page 91

461 N.W.2d 91

BEST PRODUCTS CO., INC.; Creative Kitchen; Fiancee Gallery West; McLaughlin Equipment Co., d.b.a. McLaughlin RV & Marine; Peggy's Card Shops, Inc., d.b.a. Peggy's Hallmark Shops; Ram Enterprises, d.b.a. Miller's True Value Hardware & Hanky Panky Gift Shop; West Acres Development River Valley Press, Inc., d.b.a. Wizard of Kids; AJ Video Coborn's, Inc., d.b.a. Cash Wise Foods; Main Realty, Inc. d.b.a. Main & Company Realtors; Metro Drug Company; Lloyd's Motors; and Rita Weisz, Plaintiffs, Appellees and Cross-Appellants, v. Nicholas J. SPAETH, North Dakota Attorney General, Defendant, Appellant and Cross-Appellee.

Civ. No. 900216.

Supreme Court of North Dakota.

Sept. 6, 1990.

Nicholas J. Spaeth, Atty. Gen., Laurie J. Loveland, Terry Lee Adkins, Asst. Attys. Gen., Bismarck, for defendant, appellant and cross-appellee; argued by Nicholas J. Spaeth.

Wheeler Wolf, Bismarck, for plaintiffs, appellees and cross-appellants; argued by John M. Olson.

LEVINE, Justice.

This case presents, yet again, constitutional challenges to North Dakota's Sunday closing law. The district court rejected claims that the Sunday closing law was unduly burdensome on interstate commerce, that the law violated the establishment of religion clause, that the entire law was void as vague, and that the law was being selectively enforced. The district court concluded, however, that the law was discriminatory and violated equal protection because shop owners similarly situated were treated disparately without justification. It granted summary judgment in favor of those challenging the law and entered an order allowing any business to operate on Sunday so long as it does not sell prohibited items. The court then stayed the judgment pending resolution of this appeal.

The State appeals, challenging the declaration that the law violates equal protection. Plaintiffs below, a confederation of businesses and individuals opposed to the statute (hereafter "Challengers"), cross-appeal and renew their constitutional challenges. We reverse that part of the judgment that declares section 12.1-30-03, NDCC, unconstitutional and modifies section 12.1-30-01, NDCC.

I. HISTORY

This court has examined the North Dakota Sunday closing law three times since the 1960s. In State v. Gamble Skogmo, Inc., 144 N.W.2d 749 (N.D.1966), a large discount store, "Tempo," was convicted of "Sabbath breaking," having opened for the sale of its general merchandise on a Sunday. At the trial level and before this court, Tempo challenged the law, claiming violations of the equal protection, due process and establishment of religion amendments to the United States constitution, and equal protection and religious freedom clauses of the North Dakota constitution. 144 N.W.2d at 754. Quoting extensively from McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), this court held that the law did not violate either the United States or North Dakota constitutions as there was no invidious discrimination, despite Tempo's argument that the classification between prohibited and allowable commodities was without a rational relation to the legislative purpose. 144 N.W.2d at 763. We also concluded that evidence that some of the law's prohibitions were not enforced against other enterprises did not prove an arbitrary and intentionally unfair discrimination in the enforcement of the law against Tempo. 144 N.W.2d at 765. Finally, we concluded that the choice of Sunday as a day of rest did not constitute an establishment of religion, but declined to decide the free exercise of religion argument because Tempo lacked standing. 144 N.W.2d at 769.

In 1967, the legislature enacted a new Sunday closing law by amending in part and repealing in part the law reviewed in Gamble Skogmo. S.L.1967, ch. 107. We reviewed that law in Bismarck v. Materi, 177 N.W.2d 530 (N.D.1970). ¹ There, a district court had held a Sunday closing ordinance violated equal protection and due process under the United States and North Dakota constitutions. Applying the rules and reasoning set out in Gamble Skogmo we identified no constitutional basis for invalidating the general provisions of the statute or ordinance. 177 N.W.2d at 539. We examined the particular provision enforced against Materi, an exemption for "Grocery stores operated by the owner-manager who regularly employs not more than three employees." Materi, 177 N.W.2d at 540 [quoting NDCC Sec. 12-21.1-04(28) ]. Materi was an owner-manager of a grocery store and employed more than three employees. He argued that the distinction drawn by the classification was unreasonable. We noted, in response, that

"[S]ize of the business as determined by the number of persons regularly employed would make a difference in the number of people working and thus being deprived of their day of rest and recreation and would affect the extent of disruption of the day to others. We do not think it unreasonable that the legislature, and in this case the City, concluded that it was necessary to permit for the benefit of the public the operation of certain small grocery stores on the day set aside for rest and recreation." Materi, 177 N.W.2d at 541.

Because Materi alleged only economic injury, and did not allege that he or his employees or customers observed a day other than Sunday as the Sabbath, we did not decide the constitutionality of a section exempting Sabbatarians from the restrictions of the law. 177 N.W.2d at 544-46.

The constitutionality of the small grocery store exception was also raised in Rothe v. S-N-Go Stores, Inc., 308 N.W.2d 872 (N.D.1981). In that case, the Cass County State's Attorney appealed from a denial of a permanent injunction restraining S-N-Go Stores, Inc. (S-N-Go) from operating its grocery stores on Sunday. S-N-Go was a corporation, owned by four shareholders, operating nine stores in Cass County. None of the shareholders was involved in the management of the stores; that was done by individual managers hired by the corporation on a commission basis. 308 N.W.2d at 873. After interpreting the "owner-manager" element of the exception, we concluded that the equal protection clause of the United States Constitution was not violated by a statute that treated "two small grocery stores differently on the sole distinction that one store [was] operated by a manager who [was] also an owner of the business whereas the other store [was] operated by a manager who [was] a hired employee with no ownership interest." Rothe, 308 N.W.2d at 876. Because the owner-manager requirement could have the effect of discouraging the proliferation of small grocery stores remaining open on Sunday, as would the practical requirement that the owner-manager work on Sunday, we concluded the requirement was rationally related to the legitimate government purpose of providing a day of rest and relaxation. Id. In each of these three cases, we applied the rational basis standard of review to the legislation whose purpose we deemed to be the promotion of rest and recreation.

II. THE STATUTE

Since these cases were decided, the legislature has enacted a new version of the Sunday closing law. S.L.1973, ch. 116, amended by S.L.1985, ch. 183. The current law, chapter 12.1-30, NDCC, restricts commercial activities on Sunday. Section 12.1-30-01 makes it a class B misdemeanor to engage in or conduct business or labor for profit in the usual manner and location, or operate a place of business open to the public on Sunday, or to direct one's employees to act contrary to the statute. This section exempts a person whose faith observes a day other than Sunday as the Sabbath, provided that person, in fact, refrains from commercial activity on that alternate Sabbath day. Section 12.1-30-02 lists forty-four classes of goods that cannot be sold excepting some items sold at hobby shows, craft shows, fairs, exhibits and other types of sales for which sales tax permits are not required, and items sold by attractions deriving fifty percent of their annual gross sales from seasonal or tourist customers. Section 12.1-30-03 authorizes thirty-seven kinds of businesses to operate on Sunday, notwithstanding the general prohibition on Sunday business, so long as they do not sell the forty-four kinds of prohibited items. In effect, the district court struck section 12.1-30-03 and modified the general prohibition of 12.1-30-01 by allowing any business to operate on Sunday so long as it does not sell the prohibited items.

III. CONSTITUTIONAL CHALLENGES

Challengers argue that the Sunday closing law violates equal protection requirements of the United States constitution by unfairly discriminating between business interests in its classifications, by failing to protect its intended beneficiaries, and as a consequence of selective enforcement. Challengers argue that the statute is impermissibly vague under the due process clauses of both constitutions. They also assert establishment of religion and commerce clause claims. Finally, Challengers argue that the Sunday closing law is a special law prohibited by the North Dakota constitution.

They distinguish this case from those previously decided on three grounds. First, the current statute has not been before this court and, therefore, presents legislative classifications not yet subjected to constitutional review by this court. Second, among those parties challenging the statute are a business operated by Seventh Day Adventists and an individual Seventh Day Adventist. These parties challenge the statute on the ground of establishment of religion not addressed in Materi. Last, Challengers argue that this court has not reviewed the Sunday closing law under the special laws clause of the North Dakota constitution.

When this court reviews the constitutionality of a statute, it will uphold the statute unless its challenger has demonstrated the constitutional infirmity. Hall GMC, Inc. v. Crane Carrier, Inc., 332 N.W.2d 54, 61 (N.D.1983)....