Com. v. Franklin Fruit Co., Inc.

• Decision Date: 23 February 1983
• Parties: COMMONWEALTH v. FRANKLIN FRUIT CO., INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 63

446 N.E.2d 63

388 Mass. 228

COMMONWEALTH v. FRANKLIN FRUIT CO., INC.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Nov. 2, 1982.

Decided Feb. 23, 1983.

Linda G. Katz, Asst. Atty. Gen., for the Commonwealth.

Francis J. Tobin, Lynn (Thomas F. Kiley, Lynn, with him), for defendant.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

The Commonwealth appeals from the dismissal of twelve complaints brought against the defendant for violations of G.L. c. 136, § 5, commonly known as the "Sunday closing laws." The complaints were dismissed after a two-day hearing in the District Court in which the defendant challenged the prosecution as violative of due process and equal protection requirements under both the Federal and Massachusetts Constitutions because the exceptions created by G.L. c. 136, § 6, are so arbitrary and vague as to sever the law's connection with a legitimate State purpose. On the basis of evidence adduced at this hearing, however, the District Court judge, without ruling on the constitutional challenge, dismissed the complaints on the ground that the "circumstances of the case are clearly ... of selective enforcement." The motion to dismiss the complaints should have been denied. We hold that the defendant failed to demonstrate selective enforcement and that the defendant also failed to rebut the presumption of constitutionality attaching to the statute. ¹

The defendant is a supermarket which has been doing business in Lynn since 1979. The store employs approximately seventy people on two shifts with twenty-five to thirty people working during peak periods. The store has six aisles of shelving for food and other sundry items plus a meat counter. The defendant was cited for violations occurring on twelve of the fourteen Sundays between August 10, 1980, and November 9, 1980. Each complaint was issued after personnel from the Lynn police department purchased a nonexempt item. ²

Selective enforcement claim. The equal protection principles of the Fourteenth Amendment to the United States Constitution and arts. 1 and 10 of the Massachusetts Declaration of Rights prohibit discriminatory application of impartial laws. Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1072-1073, 30 L.Ed. 220 (1886); Commonwealth v. King, 374 Mass. 5, 372 N.E.2d 196 (1977). In Commonwealth v. Franklin, 376 Mass. 885, 894, 385 N.E.2d 227 (1978), we set forth a tripartite burden on one who asserts selective enforcement of the criminal law: (1) a broader class of persons than those prosecuted has violated the law; (2) the failure to prosecute was either consistent or deliberate; and (3) the decision not to prosecute was based on an impermissible classification such as race, religion, or sex.

We will treat with deference the subsidiary findings of the judge if we find that they are warranted by the evidence. Commonwealth v. Murphy, 362 Mass. 542, 547, 289 N.E.2d 571 (1972). However, we are not bound by his ultimate findings and conclusions of law. Commonwealth v Mahnke, 368 Mass. 662, 667, 335 N.E.2d 660, cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1975). We hold that the facts found by the judge do not permit the conclusion that the Commonwealth was guilty of selective enforcement.

The judge stated in his findings that in the summer of 1980, one of the defendant's competitors complained to the Lynn police department that the defendant store was open for business on Sunday. ³ He further found that the chief of police of Lynn called a corporate officer of the Franklin Supermarket, Ernest Yanakakis, a "money hungry Greek" when they met following the complaint. ⁴ It is apparent from the defendant's argument on appeal and from the record that the only arguable basis for a claim of impermissible classification was either the police practice of issuing citations only as a result of complaints filed by competitors, see State v. Anonymous, 33 Conn.Supp. 55, 364 A.2d 244 (C.P.1977); People v. Acme Mkts., 37 N.Y.2d 326, 372 N.Y.S.2d 590, 334 N.E.2d 555 (1975), or a conclusion that the decision to prosecute the defendant and not others was the result of an impermissible classification based on national origin. Art. 1 of the Massachusetts Declaration of Rights, as amended by art. 106. See Commonwealth v. Franklin, supra, and cases cited.

Yanakakis, who described himself as an "owner, operator" of the store testified that the police issued citations to the store only after a competitor, Star Market, complained that the store was in violation of G.L. c. 136, §§ 5, 6. The judge's findings indicate that "the Lynn Police received a complaint from one of the National Supermarket chains that several supermarkets of the intermediate size (more than 3 regular employees) were open for business in violation of the Sunday laws." He also found that "[t]he Lynn Police Department instituted a crackdown," but he did not indicate which, if any, stores other than the defendant were investigated or cited. However, Yanakakis testified that police had issued "three or four" citations against Bavardi's, a supermarket in Lynn employing from five to seven people on Sundays, and one citation against Osco, a drugstore. ⁵ He testified that the police had initiated the complaint against Bavardi's ⁶ but not until after Franklin Supermarket was cited, and that the Osco citation was issued only after he had signed a complaint. On cross-examination Lynn police personnel testified that at about the time they visited Franklin Supermarket they had also conducted inspections for violations at other stores in Lynn, including Osco, Bavardi's, and Snell's (a store employing five persons on Sunday, according to Yanakakis) and that citations for violations had been issued against Bavardi's. ⁷

The judge made no findings concerning either the police inspections or the issuance of citations to other stores. While he need not have believed the police witnesses' testimony on these matters, the statement of Yanakakis that Bavardi's was cited is an admission that Franklin Supermarket was not the only store cited. ⁸ It is apparent that this evidence, and the police witnesses' testimony, if believed, would belie any notion that the Lynn police department enforced the Sunday closing laws only when competitors complained about the defendant. There is also nothing in the record, other than the testimony of Yanakakis, which affirmatively suggests that the Lynn police employed a policy of not enforcing the Sunday closing laws except when a competitor complained. While the three police witnesses indicated they had never issued citations for Sunday closing violations prior to citing the defendant, ⁹ there was nothing to indicate that there were prior violations, ¹⁰ or that there was any policy of nonenforcement in Lynn. That there might have been policies of nonenforcement in neighboring municipalities does not further the defendant's claim. See McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Zayre Corp. v. Attorney Gen., 372 Mass. 423, 428 n. 10, 362 N.E.2d 878 (1977). Further, unlike the situations in State v. Anonymous, supra, and People v. Acme Mkts., supra, all but one of the defendant's violations were based on purchases made by police officers and the complaints signed by those officers. ¹¹ "[L]aw enforcement officers enjoy considerable discretion in exercising some selectivity for purposes consistent with the public interest ...." Commonwealth v. Franklin, 376 Mass. 885, 894, 385 N.E.2d 227 (1978). The evidence indicates that the defendant employed fifteen people on Sunday, some five or six more than any other store in Lynn. ¹² If the selection is not otherwise discriminatory, it would be appropriate for the Lynn police to pick out the major violator of a law to make an example "in the expectation that general compliance will follow and that further prosecutions will be unnecessary." Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 365, 275 N.E.2d 33 (1971), cert. denied sub nom. Farrell v. Massachusetts, 407 U.S. 910, 92 S.Ct. 2433, 32 L.Ed.2d 683 and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914, 92 S.Ct. 2433, 32 L.Ed.2d 689 (1972), quoting People v. Utica Daw's Drug Co., 16 A.D.2d 12, 21, 225 N.Y.S.2d 128 (N.Y.1962). On the basis of the testimony and the record before this court, we conclude that, as a matter of law, the defendant's evidence fails to raise a reasonable inference that any decision not to prosecute its competitors was based on a police policy not to enforce the laws unless a competitor complained.

There is nothing in the record to indicate that citations were issued to Franklin Supermarket simply because Yanakakis was of Greek heritage. There is also no showing by the defendant that the owners of any of the other stores mentioned in the testimony as having been investigated or cited by the police were not of Greek extraction. In short, there is no reasonable inference possible from the evidence that the decision, if there were one, not to prosecute others in the same position as the defendant, was based on an impermissible classification based on national origin.

Constitutionality of the statute. The defendant's argument on this issue is that "the entire scheme of G.L. c. 136, §§ 5 and 6, providing for a common day of rest" lacks any rational relation to a legitimate State purpose and creates arbitrary classifications between those stores allowed to remain open and those forced to close. In Zayre Corp. v. Attorney Gen., 372 Mass. 423, 437-438, 362 N.E.2d 878 (1977), we rejected similar challenges to the same law and concluded, in essence, that such laws are a valid exercise of police power. See McGowan v. Maryland, 366 U.S. 420, 449, 81 S.Ct. 1101, 1117, 6 L.Ed.2d 393 (1961). At the time when Zayre Corp. was decided, § 6 contained forty-nine exceptions to the general prohibition contained in § 5. In 1977, the Legislature created a fiftieth...