Felix v. Milliken

• Decision Date: 22 December 1978
• Docket Number: Civ. No. 78-73015,78-73159.
• Citation: 463 F. Supp. 1360
• Parties: Frank D. FELIX, d/b/a J. C.'s Rock Saloon, Back Seat Saloon Country Cousin, Inc., a Michigan Corporation, Theresa Haver, Carol Prantera, Kathy Bugaj, Guardian Pharmacy, Inc., a Michigan Corporation, Robert Sternberg, Jeffrey Scott Sternberg, and Jane Marie Smith, Plaintiffs, v. The Honorable William G. MILLIKEN, in his capacity as Governor of the State of Michigan, Frank J. Kelley, in his official capacity as Attorney General of the State of Michigan, Stanley Thayer, in his official capacity as Chairman of the Michigan Liquor Control Commission, and Louis Jarboe, Thomas A. Van Tiem, Sr., Edward Weist and Joseph Wisniewski, in their official capacities as duly appointed members of the Michigan Liquor Control Commission, Defendants. James T. FARRELL, Peggy L. O'Dell, David Fischer, Mark Armitage, Linda Feldt, Janice H. Danigin, Jeffrey A. Lebow, Dooley's Inc., a Michigan Corporation, Ann "R" Inc., a Michigan Corporation d/b/a Second Chance, Alibi, Inc., a Michigan Corporation, Roy Lancaster and Diane Lancaster, d/b/a Woodworth House, Vince Catapano, d/b/a Pompei Lounge, and Michigan Committee for the Age of Responsibility, Plaintiffs, v. Stanley G. THAYER, Louis G. Jarboe, Thomas A. Van Tiem, Sr., Edward F. Weist and Joseph L. Wisniewski, members of the Michigan Liquor Control Commission, and Frank J. Kelley, Attorney General of the State of Michigan, Defendants.
• Court: U.S. District Court — Western District of Michigan

463 F. Supp. 1360

Frank D. FELIX, d/b/a J. C.'s Rock Saloon, Back Seat Saloon Country Cousin, Inc., a Michigan Corporation, Theresa Haver, Carol Prantera, Kathy Bugaj, Guardian Pharmacy, Inc., a Michigan Corporation, Robert Sternberg, Jeffrey Scott Sternberg, and Jane Marie Smith, Plaintiffs, v. The Honorable William G. MILLIKEN, in his capacity as Governor of the State of Michigan, Frank J. Kelley, in his official capacity as Attorney General of the State of Michigan, Stanley Thayer, in his official capacity as Chairman of the Michigan Liquor Control Commission, and Louis Jarboe, Thomas A. Van Tiem, Sr., Edward Weist and Joseph Wisniewski, in their official capacities as duly appointed members of the Michigan Liquor Control Commission, Defendants.

James T. FARRELL, Peggy L. O'Dell, David Fischer, Mark Armitage, Linda Feldt, Janice H. Danigin, Jeffrey A. Lebow, Dooley's Inc., a Michigan Corporation, Ann "R" Inc., a Michigan Corporation d/b/a Second Chance, Alibi, Inc., a Michigan Corporation, Roy Lancaster and Diane Lancaster, d/b/a Woodworth House, Vince Catapano, d/b/a Pompei Lounge, and Michigan Committee for the Age of Responsibility, Plaintiffs, v. Stanley G. THAYER, Louis G. Jarboe, Thomas A. Van Tiem, Sr., Edward F. Weist and Joseph L. Wisniewski, members of the Michigan Liquor Control Commission, and Frank J. Kelley, Attorney General of the State of Michigan, Defendants.

Civ. Nos. 78-73015, 78-73159.

United States District Court, E. D. Michigan, S. D.

December 22, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stephen M. Taylor and Carl L. Rubin, Southfield, Mich., Robert Eugene Smith, Atlanta, Ga., Avern L. Cohn and Stephen F. Wasinger, Detroit, Mich., for plaintiffs.

George H. Weller and Deborah Anne Devine, Asst. Attys. Gen., Lansing, Mich., for defendants.

OPINION

GUY, District Judge.

The court has before it two consolidated cases both challenging the constitutionality of a constitutional amendment passed by the voters of the State of Michigan on November 7, 1978. Felix was filed in this court on November 20, 1978. Farrell was filed in the Circuit Court for the County of Wayne on November 27, 1978, and was removed to this court by the defendants on December 8, 1978. Both cases sought temporary injunctive relief and on December 18, 1978, a hearing was commenced. Pursuant to Rule 65 and by agreement of the parties, the trial of this matter was advanced so that there could be a complete disposition prior to the December 23, 1978 effective date of the constitutional amendment.

The amendment was to Article IV, Section 40, of the Michigan Constitution of 1963, which now reads, as amended (new language in capital letters):

A PERSON SHALL NOT SELL OR GIVE ANY ALCOHOLIC BEVERAGE TO ANY PERSON WHO HAS NOT REACHED THE AGE OF 21 YEARS. A PERSON WHO HAS NOT REACHED THE AGE OF 21 YEARS SHALL NOT POSSESS ANY ALCOHOLIC BEVERAGE FOR THE PURPOSE OF PERSONAL CONSUMPTION. AN ALCOHOLIC BEVERAGE IS ANY BEVERAGE CONTAINING ONE-HALF OF ONE PERCENT OR MORE ALCOHOL BY VOLUME. EXCEPT AS PROHIBITED BY THIS SECTION, the legislature may by law establish a liquor control commission which, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retain sales thereof. The legislature may provide for an excise tax on such sales. Neither the legislature nor the commission may authorize the manufacture or sale of alcoholic beverages in any county in which a majority of the electors voting thereon shall prohibit the same.

This amendment was proposed by the electorate pursuant to the provisions of Article 12, Section 2, of the Michigan Constitution, which reads in pertinent part as follows:

Sec. 2. Amendments may be proposed to this constitution by petition of the registered electors of this state. Every petition shall include the full text of the proposed amendment, and be signed by registered electors of the state equal in number to at least 10 percent of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected....

Over the last several decades, there have been several changes in the minimum legal drinking age within the State of Michigan. In 1933, the legislature established the minimum age for the consumption of alcoholic beverages at 21 except for beer for which the age was established at 18. In 1937, the minimum age for all alcoholic beverages, including beer, was raised to 21. No further changes occurred until Congress proposed the twenty-sixth amendment which was ratified by the requisite number of states and certified on July 5, 1971. The effect of the twenty-sixth amendment was to lower the voting age in all elections to 18. On the heels of the adoption of the twenty-sixth amendment, several states, including Michigan, reviewed their age of majority and minimum drinking age laws. In August of 1971, the Michigan Legislature adopted Public Act No. 79 which lowered the age of majority in Michigan to 18. As of January 1, 1972, the legal minimum drinking age in Michigan for all types of alcoholic beverages became 18 years of age.

At or about this same period of time, 27 other states reduced their minimum drinking age although there was no unanimity as to the minimum drinking age established— there being a range between 18 and 20 years of age.

Some five years after this flurry of reductions in the minimum drinking age, it appears that several states have reviewed their earlier decision in this regard. In 1976, Minnesota raised its minimum drinking age. In 1977, Maine raised its minimum drinking age. And the Michigan Legislature in 1978, through the enactment of Public Act 94, raised the minimum drinking age from 18 to 19, said new minimum to be effective December 3, 1978. Thus, as of this moment, the minimum drinking age in the State of Michigan is 19 years of age. It should be noted that the plaintiffs in this litigation do not challenge the Michigan legislative enactment raising the minimum drinking age to 19 years of age.

The plaintiffs remaining in these two consolidated cases are individuals within the affected age group, parents of such individuals, and liquor licensees. No questions of standing or jurisdiction have been raised by any of the parties with one exception which will be dealt with, infra. Although the primary thrust of plaintiffs' attack concerns the Equal Protection Clause of the fourteenth amendment, there are also allegations that the constitutional amendment in question improperly infringes upon the use of alcoholic beverages in connection with religious sacraments, the right to employment, and the rights of parents with regard to their children. There is also a contention raised by the pleadings in Farrell but not argued during the trial or briefed that the initiatory procedures for constitutional amendments outlined in the Michigan Constitution of 1963 are themselves unconstitutional. Although the court will address all of these issues in its Opinion, primary attention will be focussed upon the equal protection argument since this is the only issue on which testimony was introduced and was the primary issue insofar as argument of the plaintiffs was concerned.

Equal Protection:

The threshold question raised by plaintiffs' equal protection claim is the standard of review which this court should apply to the constitutional amendment initiated and passed by the citizens of the State of Michigan raising the age for buying or consuming alcoholic beverages from 19 to 21 years of age. In connection with that question, a short review of the history of the Equal Protection Clause of the fourteenth amendment is appropriate in view of the rapid and dramatic development of the fourteenth amendment in the last two decades. Before that, except in the context of racial classifications, the Equal Protection Clause was infrequently invoked and seldom successfully. Indeed, Justice Holmes once remarked that arguments grounded on the Equal Protection Clause were usually "the last resort of constitutional arguments." Buck v. Bell, 274 U.S. 200, 208, 47 S.Ct. 584, 585, 71 L.Ed. 1000 (1927).

Traditionally, classifications made by units of government would be held valid under the Equal Protection Clause so long as the statute or ordinance reasonably related to the legislative purpose. In that regard, it was a means oriented doctrine and did not seek to second guess or evaluate the merits of the legislative end. Also, considerable flexibility was accorded legislators relative to the vehicle chosen to implement or further the object of the legislation. A leading commentator in the field recently summed up the "old" variety of equal protection scrutiny in these words:

The courts did not demand a close fit between classification and purpose; perfect congruence between means and ends was not required; judges were prepared to allow legislators considerable flexibility to act on the basis of broadly accurate generalizations and were prepared to tolerate some over-inclusiveness and under-inclusiveness in classification schemes.

Gunther, Cases and Materials on Constitutional Law, 657 (9th Ed. 1975).

The deferential "old" equal protection review took on an added measure of permissiveness, at least in the areas of social and economic legislation during the 1960's, somewhat surprisingly given the general philosophical inclination of the Supreme Court during this period. Representative of this hands-off attitude is the often quoted statement of Chief Justice Warren in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961):

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

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