Greater Baltimore Bd. of Realtors, Inc. v. BALTIMORE CTY., Civ. No. H-90-1956.

• Citation: 752 F. Supp. 193
• Decision Date: 29 November 1990
• Docket Number: Civ. No. H-90-1956.
• Parties: The GREATER BALTIMORE BOARD OF REALTORS, INC.; Real Estate Brokers of Baltimore, Inc.; James H. Bateman; Michael Cassell; and Joseph McGraw, Plaintiffs, v. BALTIMORE COUNTY, MARYLAND, Defendant.
• Court: U.S. District Court — District of Maryland

752 F. Supp. 193

The GREATER BALTIMORE BOARD OF REALTORS, INC.; Real Estate Brokers of Baltimore, Inc.; James H. Bateman; Michael Cassell; and Joseph McGraw, Plaintiffs, v. BALTIMORE COUNTY, MARYLAND, Defendant.

Civ. No. H-90-1956.

United States District Court, D. Maryland.

November 29, 1990.

Peter H. Gunst, Karen R. Johnson, and Frank, Bernstein, Conaway & Goldman, Baltimore, Md., for plaintiffs.

Arnold Jablon, County Atty., and L. Paul Snyder, Jr., Associate County Atty., Towson, Md., for defendant.

ALEXANDER HARVEY, II, Chief Judge.

Presently pending before the Court in this civil action are cross-motions for summary judgment filed on behalf of the parties. Plaintiffs are two real estate trade associations, two individual real estate agents, and one resident of Baltimore County who is seeking information regarding the purchase and sale of County real estate. There is only one remaining defendant in the case.¹ Plaintiffs are here suing Baltimore County, Maryland, claiming that § 14-26 of the Baltimore County Code, which restricts the advertising activities of real estate professionals, violates plaintiffs' constitutional rights under the First and Fourteenth Amendments to the Constitution.

Plaintiffs initially sought a preliminary injunction which would prohibit the County from enforcing §§ 14-26 and 14-29 of the County Code. Following a status conference held with the Court on September 4, 1990, it was agreed that the issues might be more appropriately addressed by way of motions for summary judgment. Accordingly, plaintiffs moved for summary judgment, relying on the memorandum and exhibits which they had filed in support of their motion for a preliminary injunction. Defendant in turn filed a cross-motion for summary judgment, claiming that the Code provisions in question were constitutional, and plaintiffs then filed an opposition to the cross-motion together with further exhibits.

Memoranda both in support of and in opposition to the pending motions have been reviewed, and oral argument has been heard in open court. For the reasons to be stated, plaintiffs' motion for summary judgment will be granted, and defendant's motion for summary judgment will be denied.

I Pertinent Facts and County Code Provisions

Plaintiff Greater Baltimore Board of Realtors, Inc. is a tax-exempt, voluntary association of real estate agents operating in Baltimore City and in Baltimore County. Plaintiff Real Estate Brokers of Baltimore, Inc. is a minority trade association of real estate professionals who conduct business in both the City and the County. Plaintiffs Cassell and Bateman are registered real estate agents doing business in Baltimore County, and plaintiff McGraw is a resident of Baltimore County who asserts that he would like to receive information regarding the purchase and sale of real estate.

At issue in this case are certain provisions of the Baltimore County Code (hereinafter the "County Code"), enacted for the purpose of eliminating an unsavory real estate practice known as "blockbusting." Blockbusting is a practice whereby certain real estate speculators capitalize on fears in white neighborhoods that the racial composition of the area may include more black families in the immediate future. Such real estate brokers earn large profits by purchasing homes at a reduced price from fearful white owners anxious to sell and then selling those homes to blacks at an inflated price. See Power, G., Apartheid Baltimore Style: The Residential Segregation Ordinances of 1910-1913, 42 U.Md.Law Rev. 289, 321 (1983). Because blockbusting may generate panic selling and increased racial tension, various local and state governments have in the past enacted legislation designed to combat this practice.

In February, 1972, the Baltimore County Council enacted §§ 14-25 through 14-29 of Article III of the County Code, entitled "Real Estate Solicitations and Blockbusting." Section 14-26 provides as follows:

It shall be unlawful for any person, firm, partnership, association, or corporation to solicit by canvassing the purchase, sale or lease of residential property located in Baltimore County by any means, including, but not limited to, door to door solicitation in person or by telephone, distribution of circulars, handbills, cards or advertisements. The following shall not be considered soliciting by canvassing:

(1) Advertisements in bona fide newspapers of general circulation in the area, radio, or television.

(2) Literature distributed through the United States mails.

(3) Legitimate personal referrals.

(4) Contacts with property owners resulting from the owner having personally advertised the property for sale.

(5) Solicitation for the purpose of obtaining information for appraisals or similar collecting of general sales or market data.

Also in 1972, the County Council enacted § 14-28 of Article III of the County Code which specifically prohibited "blockbusting." That Section defined blockbusting as an inducement or attempt to induce a person to sell or rent a dwelling by representations regarding the entry or prospective entry into the neighborhood of persons of a particular race, color, religion, or national origin. In 1989, § 14-28 was repealed, but not § 14-26. Thus, § 14-26, which contains the challenged restrictions on real estate activities, remains today as an enforceable provision of County law. Penalties for a violation of § 14-26 include a fine of up to one thousand dollars ($1,000) or six months imprisonment. See § 14-29, County Code.

II Summary Judgment Principles

It is well settled that a party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Rule 56(c), F.R.Civ.P.; see also Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). This burden may be met by consideration of affidavits, exhibits, depositions and other discovery materials. Id.

One of the purposes of Rule 56 is to require a party opposing a motion for summary judgment, in advance of trial and after a motion has been filed and supported, to come forward with some minimal facts to show that a defendant may be liable under the claims alleged. See Rule 56(e). Moreover, "`a mere scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely.'" Barwick, supra, 736 F.2d at 958-59 (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 640 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir. 1967)). In the absence of such a minimal showing, a party should not be required to undergo the considerable expense of preparing for and participating in a trial. Bland v. Norfolk and Southern Railroad Company, 406 F.2d 863, 866 (4th Cir.1969).

In this particular case, the parties agree that the essential facts are not in dispute and that questions of law are presented. Accordingly, the issues here may appropriately be addressed by way of the pending cross-motions for summary judgment.

III Discussion

In moving for summary judgment, plaintiffs contend that § 14-26 of the County Code has violated and continues to violate their rights under the First and Fourteenth Amendments. Specifically, plaintiffs assert that regulations curtailing the advertising activities of real estate agents further no substantial governmental interest because the practice of blockbusting no longer exists in Baltimore County. In addition, plaintiffs contend that the statute is unconstitutionally overbroad and vague.

In its cross-motion for summary judgment, defendant asserts that the challenged provisions of the County Code are constitutional because they further a substantial governmental interest and are narrowly tailored to directly advance that interest.

(a) Standing

As an initial matter, defendant has raised the question of plaintiffs' standing to bring suit, contending that plaintiffs may not maintain this action because they have not been threatened with criminal prosecution as a result of violating the Code. There is no merit to this argument.

In Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988), the Supreme Court held that a plaintiff need not be faced with imminent prosecution before bringing suit under the Declaratory Judgment Act. In American Booksellers, two book store owners challenged a Virginia statute which prohibited the display of sexually explicit materials for commercial purposes in a manner accessible to juveniles. In holding that plaintiffs had standing to sue even in the absence of any enforcement proceedings, the Supreme Court stated that the requirements of standing are met if "the law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution." 484 U.S. at 392, 108 S.Ct. at 642.

The Court also noted that in the First Amendment context litigants may challenge a statute on the ground that its very existence may cause others to refrain from constitutionally protected speech or expression. Id. at 392-93, 108 S.Ct. at 642-43, citing Secretary of State of Maryland v. J.H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984). The Court concluded that the danger posed by the statute was largely one of self-censorship, "a harm that can be realized even without an actual prosecution." Id.

The decision in American Booksellers is dispositive of the issue of standing in this case. The principles enunciated by the Supreme Court in that case apply whether a challenged statutory provision prohibits the display of sexually explicit materials or whether the prohibition relates to communications concerning the availability of real estate services. The Supreme Court has clearly held that under circumstances such as those present here a plaintiff need not wait until prosecution is imminent before challenging a...