Burning Tree Club, Inc. v. Bainum

• Decision Date: 23 December 1985
• Citation: 305 Md. 53,501 A.2d 817
• Court: Maryland Court of Appeals
• Parties: BURNING TREE CLUB, INC. v. Stewart BAINUM, Jr. and Barbara Bainum Renschler. 119 Sept. Term 1984.

Page 53

305 Md. 53

501 A.2d 817

BURNING TREE CLUB, INC. v. Stewart BAINUM, Jr. and Barbara Bainum Renschler.

119 Sept. Term 1984.

Court of Appeals of Maryland.

Dec. 23, 1985.

Benjamin R. Civiletti (J. Phillip Jordan, Leslie A. Vial, James A. Dunbar and Venable, Baetjer & Howard, Baltimore, and David MacDonald, of counsel, Rockville, on brief), for appellant.

Eileen M. Stein, Chevy Chase (Christine L. Owens, Washington, D.C., and Donna Lenhoff and Terisa Chaw, of counsel, Washington, D.C., on brief), for appellees.

Thomas P. Ondeck and George D. Webster and Webster, Chamberlain & Bean, of counsel, Washington, D.C., on brief, for amicus curiae brief of The Nat. Club Ass'n.

Jeffrey F. Liss, Daniel H. Maccoby, Bruce R. Stewart and Wald, Harkrader & Ross and Edward L. Genn, Brown, Genn, Brown & Karp, of counsel and Elizabeth Symonds, of counsel, Washington, D.C., on brief, for amicus curiae brief of The American Civil Liberties Union Fund.

Stephen H. Sachs, Atty. Gen., Baltimore, Diana G. Motz, Linda H. Lamone, Kaye Brooks Bushel, Robert A. Zarnoch, Asst. Attys. Gen., Annapolis, on brief, for amicus curiae brief of State of Maryland and State Dept. of Assessments and Taxation.

Sally B. Gold and Hylton & Gonzales, Baltimore, Marshal Levick and Lynn Hecht Shafran, New York City, and S. Carey Nicholas, Philadelphia, Pa., and Judith I. Avner, of counsel, New York City, all on brief, for amicus curiae brief of The E.R.A. Impact Project.

Risselle Rosenthal Fleisher, Gen. Counsel, Sally L. Swann, Asst. Gen. Counsel, on brief, Baltimore, for amicus curiae brief of State of Maryland Com'n on Human Relations.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired) and THEODORE G. BLOOM, Associate Judge of the Court of Special Appeals, Specially Assigned.

MURPHY, C.J., announcing the judgment of the Court, in which SMITH and ORTH, JJ., join.

Article 46 of the Maryland Declaration of Rights, commonly known as the Equal Rights Amendment (E.R.A.), was adopted by the people of Maryland in November of 1972; it provides:

"Equality of rights under the law shall not be abridged or denied because of sex."

The principal question in this case is whether Maryland Code (1957, 1980 Repl.Vol.), Article 81, § 19(e)(4), which conditionally affords preferential tax assessments to private country clubs operated with the primary purpose of serving or benefiting members of a particular sex, violates the E.R.A.

I

The General Assembly enacted § 19(e) of Art. 81 by ch. 399 of the Acts of 1965. A preamble to the statute declared that it was the legislative intention

"that the assessment of lands used for country clubs shall be maintained at levels compatible with the continued use of such property for country clubs and shall not be adversely affected by neighboring uses of a more intensive and different nature."

The preamble further declared that it was

"in the general public interest that such uses should be encouraged in order to provide open spaces and provide recreational facilities and to prevent the forced conversion of such country clubs to more intensive or different uses as a result of economic pressures caused by the assessment of country club land and improvements at a rate or level incompatible with the practical use of such property for country clubs."

Consistent with the declaration of legislative policy, § 19(e) authorized the State Department of Assessments and Taxation (the Department) to enter into agreements with private country clubs whereby in exchange for a ten-year commitment to preserve its open spaces by not selling or developing its land, a portion of the club's real property taxes would be deferred. Under such agreements, property taxes were imposed based on an assessment of the property as undeveloped land, rather than on a "best use" assessment as if the land were developed to the same density as the surrounding area. The statute permits extensions of preferential tax agreements for periods of not less than five years.

The 1965 legislation had not contained any antidiscrimination provisions. At the 1974 session of the General Assembly, House Bill 620 proposed broad antidiscrimination provisions for insertion in subsection (4) of § 19(e). H.B. 620 was amended in the Senate and the House of Delegates concurred in that amendment. Set forth below is the relevant portion of § 19(e)(4)(i) immediately following the enactment of Ch. 870. Language originally enacted in 1965 appears in regular type. The language of H.B. 620 as introduced appears in italics. The language of the amendment to the House version (the Senate Amendment) appears with single and double underscoring.

[T]he fact that the club facilities may be used by persons or groups other than members or their guests does not disqualify a club under this subsection. In order to qualify under this section, the club shall not practice or allow to be practiced any form of discrimination in granting membership or guest privileges based upon the race, color, creed, sex, or national origin of any person or persons. The determination as to whether or not any club practices discrimination shall be made by the Office of the Attorney General after affording a hearing to the club. The provisions of this section with respect to discrimination in sex shall not apply to any club whose facilities are operated with the primary purpose, as determined by the Attorney General, to serve or benefit members of a particular sex, nor to the clubs which exclude certain sexes only on certain days and at certain times. If the Attorney General determines that a pattern of discrimination is evident in any club, he shall negotiate a consent agreement with that club to cease such discrimination. If that club breaches or violates the consent agreement or refuses to enter a consent agreement, then the Attorney General shall issue a cease and desist order to that club. If the club breaches or violates the terms of the cease and desist order, the tax exemption, tax credit or beneficial assessment shall be withdrawn, until such time that the Attorney General determines that the club is in compliance with this subsection. Further, any club which fails to qualify as a country club, under paragraph (4) of this subsection because the club has engaged in discrimination shall not be liable for unpaid taxes provided for in subparagraph (7) of this subsection. However the club shall be assessed and taxed without regard to this subsection. There shall be a right of appeal as provided by sections 255 and 256 of Article 41 of this Code (Title "Governor-Executive and Administrative Departments," Subtitle "Administrative Procedure Act").

The portion of the Senate Amendment set forth with single underlining is the "primary purpose" qualification. It is central to a determination of the issues presented in this case.

II

Burning Tree Club, located in Bethesda, Maryland, has been a private men's golf club since its foundation in 1922. Its bylaws state that the club is organized specifically to promote and encourage the game of golf. Accordingly, the club consists only of an eighteen-hole golf course, a clubhouse and a pro shop. Membership is limited to 250 residents and 250 nonresidents, honorary, clerical and senior members. A person cannot apply for membership but must be proposed by one member and seconded by another. The decisive criteria are the proposed member's dedication to golf and compatibility with the club's members. However, women are not allowed to become members or to enjoy guest privileges. Furthermore, women are not allowed to enter or use the clubhouse. It is only by appointment on specific days in December that a member's wife may obtain limited access to the pro shop to purchase Christmas gifts for her husband.

Burning Tree occupies approximately 225 acres, 200 of which is open space. When founded in 1922, Burning Tree was located in a rural environment. Since that time, the area surrounding the club has become highly developed. In 1965, Burning Tree entered into an agreement with the State, pursuant to § 19(e), whereby it agreed to preserve its open spaces for ten years in return for a property tax deferral. The agreement was extended for ten years in 1975.

In 1978, pursuant to authority vested in him under § 19(e)(4), the Attorney General determined that Burning Tree did not discriminate on the basis of race, color, creed, or national origin, and that the sex discrimination prohibition was not applicable because the club was operated with the primary purpose of serving members of one sex. In 1981, Burning Tree executed a 50-year agreement with the State to preserve its open space in exchange for a tax deferral. Although Burning Tree is only one of many country clubs maintaining open-space agreements with the State, it is the only club that qualifies for the tax preference because of a primary purpose to serve members of one sex. The value of Burning Tree's tax deferral is exemplified by the fact that in 1981 alone the club realized a tax savings of approximately $130,000 as a result of its preferential tax assessment.

III

By bill of complaint filed in the Circuit Court for Montgomery County on August 12, 1983, Stewart Bainum, as taxpayer, and Barbara Renschler, as taxpayer and as a woman seeking membership in Burning Tree, sued the State, the Department and Burning Tree; they sought first, a declaration that the primary purpose provision of § 19(e)(4) violated the E.R.A. and Articles 15 ¹ and 24 ² of the Maryland Declaration of Rights; second, an order enjoining preferential tax treatment for Burning Tree; and third, an order that Burning Tree entertain women's membership applications.

Acting on cross-motions for summary judgment, the circuit court (Raker, J.) declared the primary purpose provision of § 19(e)(4) to be violative of the E.R.A. and thus null and void. The...