State ex rel. Atty. Gen. v. Burning Tree Club, Inc., 138

• Decision Date: 01 September 1983
• Docket Number: No. 138,138
• Parties: STATE of Maryland, ex rel., ATTORNEY GENERAL et al. v. BURNING TREE CLUB, INC. ,
• Court: Maryland Court of Appeals

Page 9

301 Md. 9

481 A.2d 785

STATE of Maryland, ex rel., ATTORNEY GENERAL et al. v. BURNING TREE CLUB, INC.

No. 138, Sept. Term, 1983.

Court of Appeals of Maryland.

Oct. 2, 1984.

Diana G. Motz and Robert A. Zarnoch, Asst. Attys. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Kaye B. Bushel and Linda H. Lamone, Asst. Attys. Gen., Baltimore, on brief), for appellant.

Benjamin R. Civiletti, Baltimore (J. Phillip Jordan, Leslie A. Vial, James A. Dunbar and Venable, Baetjer & Howard, Baltimore, and David Macdonald, Rockville, of counsel, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

SMITH, Judge.

We shall here hold that the Attorney General of Maryland could not bring a declaratory judgment action challenging the constitutionality of an enactment of the General Assembly of Maryland.

I

Proclaiming in its preamble that it was "the intent of the General Assembly that the assessment of lands used for country clubs shall be maintained at levels compatible with the continued use of such property for country clubs and shall not be adversely affected by neighboring uses of a more intensive and different nature" and that it is "in the general public interest that such uses should be encouraged in order to provide open spaces and provide recreational facilities and to prevent the forced conversion of such country clubs to more intensive or different uses as a result of economic pressures caused by the assessment of country club land and improvements at a rate or level incompatible with the practical use of such property for country clubs," the General Assembly, by Ch. 399 of the Acts of 1965, enacted a tax preference statute for country clubs. This provision is codified as Maryland Code (1957, 1980 Repl.Vol.) Art. 81, § 19(e). The statute authorizes the State Department of Assessments and Taxation "to make uniform agreements pursuant to th[at] subsection relative to the assessment and taxation of lands actively devoted to use as a country club as defined [t]herein." ¹ Pursuant to such an agreement, but for an exception not pertinent to this case, "land which is actively devoted to use as a country club ... shall be assessed on the basis of such use for the period of time provided for in the agreement or any extension thereof and shall not be assessed as if subdivided or used for any other purpose." The period of time which such agreement may cover "shall be at the option of the country club but shall be not less than ten (10) consecutive years and may be extended from time to time."

In Ch. 870 of the Acts of 1974, the General Assembly amended § 19(e)(4) by inserting a provision to the effect that, in order to qualify for the exemption, a club "may not practice or allow to be practiced any form of discrimination in granting membership or guest privileges based upon the race, color, creed, sex, or national origin of any person or persons." The amendment further provided that the Office of the Attorney General should make the determination as to whether any club practices discrimination after affording a hearing to the club. Inserted in the statute in the process of its trip through the General Assembly was language which states that such provisions should not apply "to any club whose facilities are operated with the primary purpose, as determined by the Attorney General, to serve or benefit members of a particular sex, nor to the clubs which exclude certain sexes only on certain days and at certain times." In addition, the amendment to § 19(e)(4) provided that if the Attorney General determines that a pattern of discrimination is evident in any club, he shall negotiate a consent agreement with that club to cease such discrimination. If the club breaches or violates the consent agreement or refuses to enter a consent agreement, then the Attorney General shall issue a cease and desist order to that club. If the club breaches or violates the terms of the cease and desist order, the tax exemption shall be withdrawn until the Attorney General determines that the club is in compliance with the subsection.

Burning Tree Club, Inc., was founded in 1922 as a private, all-male golf club. It operates an eighteen hole golf course located on approximately 225 acres of land in Montgomery County. After § 19(e) was enacted in 1965, Burning Tree entered into a ten year agreement with the State Department of Assessments and Taxation in order to receive the tax preference. The agreement was extended for another ten year period in 1975. A new agreement covering a fifty year period was executed in 1980, following a determination by the Attorney General in 1978 that Burning Tree was operated to serve or benefit members of a particular sex and hence was exempt from the prohibition of sex discrimination contained in § 19(e)(4).

The Attorney General instituted a declaratory judgment action in the Circuit Court for Montgomery County in the name of the State and on his own behalf as Attorney General. He sought to have declared unconstitutional that portion of the statute which provides the exemption for country clubs operated with the purpose of serving or benefiting members of a particular sex. He contended that this language is severable from the remaining portion of § 19(e)(4). Burning Tree filed a demurrer asserting that there is no actual controversy between the parties and thus the Court lacked jurisdiction over the case, that the Attorney General is without authority to bring the action, that the Attorney General lacks standing to bring the action, and that "[t]he Attorney General may not maintain this suit which conflicts with his duty to uphold the laws of the State and in which he has taken a position adverse to the interests of his statutory clients."

The trial judge (Sanders, J.) sustained Burning Tree's demurrer, stating in pertinent part:

"It is clear that the existence of a justiciable issue is an absolute prerequisite to the maintenance of a declaratory judgment action. A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded. The issue must present more than a difference of opinion, and in instances where constitutional rights are sought to be adjudicated, concrete and specific issues must be raised in actual cases rather than as theoretical or abstract propositions. Gordon Hatt v. Mark Anderson, et al., 297 Md. 42 (1983).

"In the case at bar no controversy exists between plaintiffs and defendant. Pursuant to statutory authority, in 1965 and 1975, defendant and the State of Maryland entered into agreements whereby defendant received preferential property tax assessments, and, subsequently, in 1978, defendant was advised by the Attorney General of his determination that its facilities were operated with the primary purpose of serving or benefiting members of a single sex, thus exempting it from the prohibition of sex discrimination contained in Article 81, Section 19(e)(4), Annotated Code of Maryland. Pursuant to these agreements and determination, defendant has enjoyed preferential tax treatment. It does not now complain to, nor has it any quarrel with, the tax assessing authority of the State of Maryland.

"It is usual that an attack upon the constitutionality of a statute relating to the collection of taxes is brought against that governmental agency vested with the authority to collect taxes, namely, the Maryland Department of Assessments and Taxation. At argument it was conceded by the Attorney General that he is precluded from filing this action against the Department of Assessments and Taxation since it is his statutory duty to defend that agency on behalf of the State of Maryland. Although he may in fact be thus precluded, this does not authorize the bringing of an action to declare a legislative enactment invalid against a party with whom he has no dispute.

"Based on the foregoing, the Court concludes that it has no jurisdiction to entertain this petition because it perceives no justiciable controversy. In view of the Court's holding in this regard, it need not decide the other issues raised by demurrer."

An appeal was entered to the Court of Special Appeals. We granted a writ of certiorari prior to hearing in that court in order that we might address the important public issues here presented.

II

Burning Tree contends that the case is moot. Obviously, if it is moot we ordinarily order dismissal of the case, since, as we have observed in a host of cases, appellate courts do not sit to give opinions on abstract propositions or moot questions and appeals which present nothing else for decision are dismissed as a matter of course. See, e.g., Hagerstown Repro. Health Serv. v. Fritz, 295 Md. 268, 271-72, 454 A.2d 846, 848, cert. denied, --- U.S. ----, 103 S.Ct. 3528, 77 L.Ed.2d 1389 (1983); Potts v. Governor, 255 Md. 445, 449, 258 A.2d 180, 182 (1969), and cases cited in each. In Attorney General v. Anne Arundel County Sch. Bus, 286 Md. 324, 407 A.2d 749 (1979), the Court said, "A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide." 286 Md. at 327, 407 A.2d at 752. Accord Maryland Tob. Grow. v. Maryland Tob. Auth., 267 Md. 20, 25-26, 296 A.2d 578, 580 (1972); State v. Ficker, 266 Md. 500, 506-07, 295 A.2d 231, 235 (1972); Lloyd v. Supervisors of Elections, 206 Md. 36, 39, 111 A.2d 379, 380 (1954).

Burning Tree's contention of mootness is based on the fact that there is pending in the Circuit Court for Montgomery County another case "addressing virtually all of the significant issues raised by the merits of this suit." It asserts that there is no "reason to require two judicial resolutions of the same issues," and thus that "[t]his case, representing an unprecedented...