McNicholas v. York Beach Village Corp.

• Decision Date: 15 November 1978
• Citation: 394 A.2d 264
• Parties: Wayne R. McNICHOLAS et al. v. YORK BEACH VILLAGE CORPORATION.
• Court: Maine Supreme Court

Page 264

394 A.2d 264

Wayne R. McNICHOLAS et al. v. YORK BEACH VILLAGE CORPORATION.

Supreme Judicial Court of Maine.

Nov. 15, 1978.

McEachern, Winiarski & Thornhill, by Dan W. Thornhill, Kittery (orally), for plaintiffs.

David N. Ott, York (orally), for defendant.

Before POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

NICHOLS, Justice.

This appeal by the three Plaintiffs in a proceeding for a declaratory judgment challenges the constitutionality of Chapter XXVI, § 1 of the ordinances of the York Beach Village Corporation. ¹ That ordinance regulates scuba diving, skin diving and snorkeling in Sohier Park, which it appears the corporation had acquired in the exercise of its governmental powers. The Superior Court in York County upheld the ordinance following a jury-waived trial, and ordered judgment for the Defendant. The Plaintiffs have appealed.

For reasons discussed below, we do not reach the question of the constitutionality of the ordinance itself. We do conclude, however, that the $25.00 permit fee imposed pursuant to the ordinance upon divers, while no fees are imposed upon other users of the park, is unconstitutional as violative of the equal protection clause. We therefore sustain, in part, the appeals of the Plaintiffs McNicholas and Wyman. We dismiss the appeal of Plaintiff Arnstein for lack of standing.

I.

We are confronted at the threshold with the question of standing. By now, it is, or at least should be, familiar law that the standing of a plaintiff to maintain his action may be, and often is, raised by the court on its own motion for the first time at the appellate level. E. g., Heald v. School Administrative District No. 74, Me., 387 A.2d 1 (1978); Fitzgerald v. Baxter State Park Authority, Me., 385 A.2d 189 (1978).

The question we face here is whether standing is a matter of pleading, or whether a plaintiff must not only plead but also prove the facts which give him standing to either bring an action or to prosecute an appeal. ²

This action was commenced by three Plaintiffs, Wayne McNicholas, Rachel Wyman, and Joseph Arnstein. Their complaint alleged, in part, that each was a scuba diver who utilized Sohier Park for that purpose prior to the enactment of the ordinance, and that they had been "deprived of the use of Sohier Park . . . since the adoption of said Ordinance . . . ." These allegations, that they were members of a limited class discriminated against by the ordinance, were sufficient under our cases to give them standing to challenge the ordinance in the trial court. See Fitzgerald v. Baxter State Park Authority, supra, 385 A.2d at 197 (1978).

The Defendant, York Beach Village Corporation, in its answer, neither admitted nor denied those allegations, and that, under our rules, constituted a denial thereof. M.R.Civ.P. 8(b). At trial, Plaintiffs McNicholas and Wyman testified that they were in fact divers who utilized the park prior to enactment of the ordinance; the Defendant did not challenge this testimony in any way. However, Plaintiff Arnstein never testified at the trial nor is there any other evidence in the record which remotely suggests that he was affected by the ordinance in any way.

Nevertheless, Plaintiff Arnstein purports to appeal from the judgment of the Superior Court. We hold that he is without standing to do so, and that his lack of standing goes to the very jurisdiction of this court to hear his appeal. Walsh v. City of Brewer, Me., 315 A.2d 200 (1974).

The jurisdictional statute covering appeals to the Law Court, 14 M.R.S.A. § 1851, requires that the appellant be aggrieved by the judgment or order appealed from. ³

For aggrievance by a judgment or order, such judgment or order must operate prejudicially and directly upon a party's property, pecuniary or personal rights.

Jamison v. Shepard, Me., 270 A.2d 861, 862-863 (1970). See also Desmond v. Persina, Me., 381 A.2d 633, 637-639 (1978), 2 Field, McKusick & Wroth, Maine Civil Practice, § 72.2a (1977 Supp.). Where, as here, the rights asserted are those of named Plaintiffs, we hold that the facts giving rise to the right to challenge a law operating against those rights must not only be pleaded, but must also be proved. ⁴ See 222 East Chestnut Street Corp. v. Board of Appeals of City of Chicago, 14 Ill.2d 190, 152 N.E.2d 465 (1958), Haines v. Rural High School Dist. No. 3, 171 Kan. 271, 232 P.2d 437 (1951).

Although the allegations of the complaint gave Plaintiff Arnstein standing to challenge the ordinance in the trial court, his failure to appear at trial or otherwise prove he was affected by the ordinance caused him to lose the right to appeal to this court. ⁵ His appeal must therefore be dismissed.

II(a)

We now proceed to determine the issues appropriately raised by the appeals of Plaintiffs McNicholas and Wyman. Their appeals purport to challenge the constitutionality of the entire ordinance, at least insofar as it distinguishes between divers and other users of the park. However, we conclude that the only issue before us is the constitutionality of the $25.00 annual permit fee imposed upon divers. That fee is not part of the ordinance, but rather is set pursuant to section 1(B) of the ordinance by the municipal corporation's Board of Overseers.

At common law, declaratory relief was generally unavailable but Maine's adoption of the Uniform Declaratory Judgment Act, 14 M.R.S.A. § 5951 Et seq., offered a new procedural vehicle to invoke the judicial machinery in an otherwise proper case. However, in order to obtain declaratory relief, compliance with the statute is necessary.

One provision of the Act, 14 M.R.S.A. § 5963, provides, in part, as follows:

. . . In any proceeding which involves the validity of a municipal ordinance, such municipality shall be made a party and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, The Attorney General shall be served with a copy of proceeding and be entitled to be heard. (Emphasis added).

It is apparent from the record that the Plaintiffs did not comply with the requirement of service upon the Attorney General. We have previously suggested the necessity of complying with this statute as a prerequisite to a constitutional challenge by means of a declaratory judgment action. See Ace Tire Co., Inc. v. Municipal Officers of Waterville, Me., 302 A.2d 90, 94 (1973). Most courts construing the Uniform Act have held that failure to serve the Attorney General is a jurisdictional defect. E. g., Sendak v. Debro, Ind., 343 N.E.2d 779 (1976), Lawrence v. Gayle, 294 Ala. 91, 312 So.2d 385 (1975), McCabe v. City of Milwaukee, 53 Wis.2d 34, 191 N.W.2d 926, 927 (1971) (and cases cited therein). Other courts have adopted a more flexible approach. Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509 (1955), Mayo v. National Truck Brokers, Inc., 220 So.2d 11 (Fla.1969), Leonard v. City of Seattle, 81 Wash.2d 479, 503 P.2d 741 (1972).

We need not here choose between competing views on the effect of failure to serve the Attorney General, for we find another basis to limit our inquiry solely to the constitutionality of a $25.00 permit fee imposed upon divers, while no fee is imposed upon any other users of the park. During trial, the following colloquy occurred:

The Court: . . . (T)he only issue before this Court, is whether or not the requirement of a $25.00 license fee is unconstitutional for the privilege of snorkling and scuba diving and skin diving. Isn't that right?

(Counsel for the

Plaintiffs): That's correct, your honor.

Since we can adjudicate the validity of the $25.00 fee without calling into question the constitutionality of the ordinance itself (cf. Board of Com'rs. of Newton County v. Allgood, 234 Ga. 9, 214 S.E.2d 522, 528 (1975) ), we prefer to adopt that course in light of the Plaintiff's express disavowal of any interest in challenging the other regulatory aspects of the ordinance. ⁶ Principles of sound appellate practice make us extremely reluctant to grant relief except on the basis of what was argued and decided in the court below. See National Advertising Company v. Inhabitants of Town of York, Me., 345 A.2d 512, 514 (1975). Since the above-quoted colloquy appears to limit the relief requested in the court below to an adjudication of the validity of the $25.00 permit fee, we will likewise limit our inquiry to that issue. ⁷

II(b)

The standard by which we review an asserted violation of the equal protection clause is well established.

Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions . . . , our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.

New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511, 517 (1976).

Since the Plaintiffs do not contend that their activities as divers involve either a fundamental right or a suspect classification, their claim of discrimination must be judged by the rational basis test. This inquiry employs a relatively relaxed standard reflecting the judiciary's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, 525 (1975).

Generally speaking, a legislative classification will not be violative of equal protection if facts may be reasonably conceived to justify the distinction. Union Mutual Life Insurance Company v. Emerson, Me., 345 A.2d 504, 507 (1975). Nevertheless, the presumption of validity is not absolute. See, e. g., Buck v. Kilgore, Me., 298 A.2d 107, 111 (1972).

That one group is required to pay more than another group for the same privilege is not in of itself a violation of equal protection. In Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 98...