State v. Burning Tree Club, Inc., 106
| Decision Date | 01 September 1987 |
| Docket Number | No. 106,106 |
| Citation | 315 Md. 254,554 A.2d 366 |
| Parties | , 57 USLW 2532 STATE of Maryland et al. v. BURNING TREE CLUB, INC. et al. , |
| Court | Maryland Court of Appeals |
Robert A. Zarnoch, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Kaye Brooks Bushel, Asst. Atty. Gen., on the brief), Annapolis, for appellant.
Benjamin R. Civiletti (James A. Dunbar and Venable, Baetjer and Howard, on brief), for appellee.
Anti-Defamation League of B'Nai B'Rith--Daniel Goldstein and Brown & Goldstein, Baltimore, Livia D. Thompson, Jill L. Kahn, Justin J. Finger, Jeffrey P. Sinensky, Meyer Eisenberg, Harold Heller, New York City, for amicus curiae.
Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.
In 1965, the Maryland General Assembly enacted Chapter 399 of the Acts of 1965, then codified as Maryland Code (1957, 1965 Cum.Supp.), Art. 81, § 19(e), and presently codified as Code (1986, 1988 Cum.Supp.), § 8-213 of the Tax-Property Article, which authorized the State to enter into agreements with private country clubs under which the clubs would maintain their land as open spaces in exchange for favorable assessment of those lands for property tax purposes. 1 As originally enacted, this legislation was silent with respect to any type of discrimination. In 1965, pursuant to this enactment, Burning Tree Country Club, a golf club in Montgomery County, Maryland, entered into a 10-year agreement with the State to maintain its land as open spaces in exchange for a favorable tax assessment.
In 1974, the General Assembly, by Ch. 870 of the Acts of 1974, amended Art. 81, § 19(e), to provide that country clubs which discriminated "in granting membership or guest privileges based upon the race, color, creed, sex or national origin of any person or persons" could not qualify for the preferential tax assessment. Ch. 870 provided two exceptions to the prohibition against sex discrimination: the "primary purpose" provision and the "periodic discrimination" provision. Ch. 870 stated in relevant part:
"The provisions of this section with respect to discrimination in sex shall 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 clubs which exclude certain sexes on certain days and at certain times."
In 1975, Burning Tree, which restricts its membership to men and permits only members and their male guests to use its facilities, extended its open spaces agreement with the State for another ten years. In 1978, the Attorney General of Maryland, pursuant to his authority under § 19(e)(4), determined that the sex discrimination ban in Ch. 870 was inapplicable to Burning Tree because it was operated with the primary purpose of serving one sex. In 1981, Burning Tree entered into a 50-year "open spaces" agreement with the State. From 1974 to the present, Burning Tree has been the only country club to benefit from the primary purpose provision.
In 1983, Stewart Bainum 2 and Barbara Renschler brought suit, as taxpayers and, in Ms. Renschler's case, as a woman seeking membership in Burning Tree, to have the primary purpose provision declared unconstitutional on the ground that it violated Art. 46 of the Maryland Declaration of Rights, known as the Equal Rights Amendment or E.R.A. That case reached this Court and was decided in Burning Tree Club v. Bainum, 305 Md. 53, 501 A.2d 817 (1985). A majority of the Court held that the primary purpose provision violated the E.R.A., Burning Tree Club v. Bainum, supra, 305 Md. at 85-88, 501 A.2d 817 (opinion of Judge Rodowsky), 88-102, 501 A.2d 817 (opinion of Judge Eldridge joined by Judge Cole and Judge Bloom), 501 A.2d at 833-842. A somewhat different majority of the Court, however, held that the primary purpose provision was not severable from the language of Ch. 870 prohibiting sex discrimination, Burning Tree Club, 305 Md. at 80-84, 501 A.2d at 830-833 (opinion of Chief Judge Murphy, joined by Judge Smith and Judge Orth), 305 Md. at 88, 501 A.2d 817 (opinion of Judge Rodowsky). The Court's conclusion, therefore, was that
"[t]he invalid primary purpose provision is not severable from the prohibition against sex discrimination so that the latter falls, together with the then completely superfluous periodic discrimination provision." 305 Md. at 83-84, 501 A.2d at 832.
The result of that decision was to permit Burning Tree to continue receiving its tax benefit while also maintaining its discriminatory policies. Within six weeks of this Court's decision in Burning Tree Club v. Bainum, a bill was introduced in the General Assembly to reinstate the prohibition against sex discrimination by country clubs receiving the tax assessment benefit. The bill, as amended during the legislative process, was ultimately enacted as Ch. 334 of the Acts of 1986. Ch. 334 as codified states in its entirety:
Subsection (b) of Ch. 334 is, in essence, the periodic discrimination provision which had not been specifically challenged in the prior litigation but which this Court struck down as "completely superfluous."
On June 23, 1986, the Supervisor of Assessments for Montgomery County, acting pursuant to the new statute, notified Burning Tree that effective July 1, 1986, the country club's lands would be assessed at their full cash value because of the club's discriminatory membership policies. On June 30, 1986, Burning Tree and two of its members filed the present action in the Circuit Court for Anne Arundel County against the State of Maryland, the Governor, the Attorney General, and the State Department of Assessments and Taxation, seeking declaratory and injunctive relief. 3 In its complaint, Burning Tree asserted (1) that Chapter 334 was intended to have only prospective effect and did not affect Burning Tree's current 50-year "open spaces" contract with the state; (2) that if Chapter 334 was held to affect Burning Tree's current contract, it violated Art. 1, § 10 (the Contract Clause) of the United States Constitution; (3) that Chapter 334 was a special law prohibited by Article III, § 33, of the Maryland Constitution; (4) that Chapter 334 violated Burning Tree's members' freedom of association rights under the United States Constitution; and (5) that the periodic discrimination exception in Chapter 334 violated the E.R.A. and that the unconstitutional language was not severable from the overall prohibition of sex discrimination in Chapter 334.
On July 21, 1987, the Circuit Court for Anne Arundel County granted the State's motion for summary judgment with respect to the first four contentions but granted summary judgment in favor of Burning Tree as to the contention that the periodic discrimination provision violated the E.R.A. In addition, the circuit court agreed with Burning Tree that the periodic discrimination provision was not severable from the overall prohibition on sex discrimination in Ch. 334. The circuit court's conclusions were embodied in a declaratory judgment. While an injunction had been prayed for, the circuit court, for some unexplained reason, did not issue one, even though Burning Tree had not paid all its taxes due and had prevailed with respect to its E.R.A. contention. 4
The State and Burning Tree filed cross-appeals to the Court of Special Appeals, and, before any proceedings in the Court of Special Appeals, both sides filed in this Court petitions for a writ of certiorari. Thereafter, this Court granted both petitions. In this Court, Burning Tree advances the same five contentions made in the circuit court and set forth above.
We shall, in agreement with the circuit court, reject the first four of Burning Tree's arguments. As to the fifth argument, we agree with the circuit court and with Burning Tree that the periodic discrimination provision violates the E.R.A. Nevertheless, we shall hold that the invalid periodic discrimination provision is severable from the broad prohibition against sex discrimination contained in Ch. 334.
The first issue before us is whether Ch. 334 of the Acts of 1986 addresses only future contracts and is therefore inapplicable to the 50-year contract entered into by the State and Burning Tree in 1981. Burning Tree argues that the plain language of Ch. 334, particularly the words "may not make an agreement under this subtitle," addresses only future contracts and does not affect clubs with existing agreements.
The court below, after examining the legislative purpose and history of Ch. 334, concluded that the statute was intended to apply to contracts in force at the time it was enacted. The court noted that the statute would not apply retroactively to the tax benefits Burning Tree had already received under the contract prior to Ch. 334's enactment. We agree with the circuit court's conclusion.
The background and legislative history of the phrase in Ch. 334, "may not make an agreement under this subtitle," refutes Burning Tree's argument that the language applies only to future agreements. Art. 81, § 19(e), as reenacted in 1974, stated in relevant part as follows (emphasis added):
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