Mid-State Food Dealers v. City of Durand, 80-40385.
| Decision Date | 20 October 1981 |
| Docket Number | No. 80-40385.,80-40385. |
| Parties | MID-STATE FOOD DEALERS ASSOCIATION, A Michigan non-profit corporation, Plaintiff, v. The CITY OF DURAND, MICHIGAN, a municipal corporation, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Anthony Mansour, Flint, Mich., for plaintiff.
Samuel S. Reiter, Owosso, Mich., for defendant.
This action arises out of an ordinance enacted by the city of Durand (hereafter defendant) on November 3, 1980. The ordinance provides that all businesses subject to city licensing requirements must be closed between the hours of 2:00 a. m. and 6:00 a. m. The ordinance does, however, contain a limited exception allowing a business to remain open during the prohibited hours if it can demonstrate that this would be in the public interest.1
Mid-State Food Dealers Association (hereinafter plaintiff) is a non-profit organization. Sunshine Foods, a member of plaintiff association had purchased land in the city of Durand prior to the enactment of the ordinance. The land was to be used for the construction of a new convenience store. Plaintiff has indicated that Sunshine Foods expected to service early morning trade.
After it opened for business, Sunshine Foods began to receive complaints from its neighbors regarding offensive noise caused by early morning customers. In response to these complaints, Sunshine Foods offered to purchase additional police protection in the area. This offer was rejected, and subsequently the city enacted the ordinance here challenged.
In its Complaint which was filed on November 19, 1980, plaintiff asserts that the ordinance was originally designed to set a 12:00 midnight closing time. Plaintiff alleges that the 2:00 deadline was ultimately selected in order to accommodate "liquor bars and other businesses."2
Defendant contends that the 2:00 a. m. closing time was "thoughtfully selected" so as not to conflict with areas preempted by state law.3 In any event, defendant argues that the motivating force behind the statute was the city's desire to abate the noise, litter and other problems caused by twenty-four hour convenience stores.
Plaintiff contends that the ordinance violates the equal protection, due process and contract clauses of the United States Constitution. Plaintiff also contends that the ordinance violates the following provisions of the Michigan Constitution: Article I, Section II (equal protection clause); Article I, Section 10 (contract clause); Article III, Section 2 (separation of powers); Article VI, Section 28 (substantial evidence). Defendant denies that these provisions are violated. Furthermore, defendant advances the position that this case is not ripe for a judicial determination.
On November 20, 1980, the parties stipulated to the entry of a preliminary injunction suspending enforcement of the ordinance. On December 20, 1980, defendant filed a Motion for Summary Judgment based on perceived weaknesses in plaintiff's theories. This Court will now consider the Summary Judgment Motion.
The threshold issue in analyzing the claim under the equal protection clause of the United States Constitution4 is determining the proper standard of review. At the present time, there are three standards: The strict scrutiny standard is applied where state action is based on a suspect classification or fundamental right.5 The middle tier standard — often referred to as "rational basis with a bite" — is applied where any one of an enumerated set of personal rights is impinged upon by the state action in question.6 And finally, the remaining possible forms of state action, most notably economic laws and regulations, are reviewed under the rational basis test.7
The ordinance in this case, as a non-suspect and non-middle tier classification, is subject to review under the rational basis test. This much is conceded by both parties. The point of dispute, however, centers around the level of rigorousness that the judiciary must employ in its rational basis analysis.
Both parties again agree that the verbal formulation of the rational basis test is that the state action in question must rationally relate to the legitimate purposes of the state action. Plaintiff, however, contends that this standard was violated by the instant ordinance. The violation, according to Plaintiff, occurred in two respects: First, the ordinance favors non-licensed businesses over licensed businesses in that only licensed businesses must remain closed; second, the ordinance was deliberately designed to allow bar owners to remain open until two o'clock. Defendant responds by asserting that these factors do not amount to an equal protection clause violation.
The modern rational basis test is an exceedingly deferential standard of review. Professor Gunther was not exaggerating when, in his seminal article on the equal protection clause, he remarked that the rational basis test extends "minimal scrutiny in theory, and none in fact."8 This was best demonstrated by the Supreme Court in the case of New Orleans v. Dukes.9
In Dukes, the Court upheld a New Orleans ordinance that allowed vendors who had operated within the New Orleans French Quarter for the preceding eight years to escape a general prohibition against pushcart vending in the French Quarter. Dukes squarely overruled Morey v. Doud, a decision that had struck down an economic-oriented state provision.10
Plaintiff blandly asserts that there is no real difference between the rational basis test as applied in Doud and as applied in Dukes. This Court could not disagree more. Dukes was a powerful repudiation of the Doud application of the rational basis. As the Court pointed out in Dukes: "Doud was a needlessly intrusive judicial infringement on the State's legislative powers, and we have concluded that the equal protection analysis employed in that opinion should no longer be followed."11
Thus, Dukes should be read to stand for the proposition that any rational relationship between a statute's purpose and means is sufficient to pass equal protection clause muster. It must be noted that Dukes addressed the issue of piecemeal legislative classification. The Dukes Court explicitly stated that it is not impermissible for a legislature to attack a social or economic evil by eliminating some undesirable practices while leaving others intact.12 Indeed, Dukes is the classic statement that legislators are not required to treat similarly situated persons in an equal manner.
It is thus obvious that plaintiff, as a matter of law, has no equal protection clause claim. Under Dukes, it is not a violation for the defendant to close licensed businesses during the early morning hours, and at the same time to allow unlicensed businesses to remain in operation. Defendant is merely eliminating the early morning noise and litter in a gradual manner — and this is clearly permissible.
Furthermore, an equal protection clause violation is not established because the deadline was extended to two o'clock a. m. in order to accommodate liquor establishments.13 This was a rational legislative choice based on economics and revenue consideration; it is thus not a violation of the equal protection clause.
The practical result in equal protection analysis is that almost any economic-oriented statute will be held constitutional.14 Truly, the modern day equal protection clause has been forged into a formidable judicial weapon, but not where economic legislation is involved. This is demonstrated by the fact that in the last half century only one economic oriented statute — the provision in the now overruled case of Morey v. Doud—15 has been held violative of the equal protection clause.16 This is a powerful trend — a trend that this Court is bound to follow. The aspect of the Summary Judgment Motion that pertains to the equal protection clause is, therefore, GRANTED.
Plaintiff's due process argument must be rejected in the same manner as its equal protection clause argument. It certainly is true that at one point in the history of our country the due process clause would have been a powerful weapon in the arsenal of the instant plaintiff. But that was in the era of substantive economic due process — an era that is long gone. Ever since the Supreme Court's 1955 decision in Williamson v. Lee Optical,17 the lenient rational basis test has been the touchstone of due process clause review. Since the Williamson decision, not a single economic law or regulation has been overturned on substantive due process grounds.18 This Court is quite confident that the ordinance in the instant case is well within the allowable range of the due process clause. The aspect of the Summary Judgment Motion that pertains to the due process clause under the United States Constitution is, therefore, GRANTED.
Plaintiff has asserted a claim based on Article 1, Section 10 of the United States Constitution. The relevant provision, the contract clause, provides in pertinent part: "No state shall ... pass any ... Law impairing the obligation of contracts." At first glance it is not readily apparent to what contract the plaintiff is referring. Upon perusal of plaintiff's brief, however, it becomes clear that the economic expectancy that was part of the consideration received by Sunshine Foods arguably is being impaired by the ordinance.
The point of departure in modern contract clause analysis is the case of Home Building & Loan Ass'n v. Blaisdell.19 In Blaisdell, the Court rejected a contract clause challenge to a depression era statute that gave state courts the right to extend the redemption period after a foreclosure. Blaisdell had the same effect on the contract clause as Williamson had on the due process clause; an era of wide-ranging state latitude was ushered in.
There have been only a few cases where the...
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...for jurisdiction, the constitutional claims having been dismissed as against the individual defendants. Mid-State Food Dealers v. City of Durand, 525 F.Supp. 387 (E.D.Mich.1981). Counts I and II shall be remanded to the state court. Reconsideration of the question of governmental immunity o......
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...33 See complaint at docket entry # 1. 34 See this Court's discussion of the equal protection claim in Mid-State Food Dealers v. City of Durand, 525 F.Supp. 387 (ED Mich., 1981). 35 See Dufrin v. Spreen, 712 F.2d 1084 (CA 6, 1983); Thompson v. Commonwealth, 712 F.2d 1078 (CA 6, ...
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...to retain jurisdiction over the pendent state claim if the federal anchor claim has been dismissed. See Mid-State Food Dealers v. City of Durand, 525 F.Supp. 387, 392 (E.D. Mich.1981). In pendent party claims, this Court has no jurisdiction. See Aldinger, The question here is whether the fa......