State v. Ludlow Supermarkets, Inc.

• Decision Date: 28 May 1982
• Docket Number: No. 299-81,299-81
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. LUDLOW SUPERMARKETS, INC., d/b/a Clark's Bennington IGA.

Page 791

448 A.2d 791

141 Vt. 261

STATE of Vermont v. LUDLOW SUPERMARKETS, INC., d/b/a Clark's Bennington IGA.

No. 299-81.

Supreme Court of Vermont.

May 28, 1982.

John J. Easton, Jr., Atty. Gen., and Edwin L. Hobson, Jr., and Zander B. Rubin, Asst. Attys. Gen., Montpelier, for plaintiff.

Fink & Birmingham, P. C., Ludlow, for defendant.

Before BARNEY, C. J., HILL and UNDERWOOD, JJ., and SHANGRAW, C. J., and DALEY, J. (Ret.), Specially Assigned.

BARNEY, Chief Justice.

This opinion deals with the validity of the so-called Sunday closing law, 13 V.S.A. §§ 3351-3358, as tested against the Constitutions of the United States and of Vermont. The law is set out in its entirety in an appendix to this opinion.

The issue before the Court is whether the statutory prohibition, quoted below, passes constitutional muster as an enforceable criminal enactment, or indeed whether it would do so even as a regulatory enactment, carrying only civil penalties. The law declares at 13 V.S.A. § 3353 that:

It shall be unlawful on Sundays, January 1, July 4, Labor Day, Thanksgiving, except for the Sundays between Thanksgiving and Christmas, for any person, firm, or corporation:

(1) to engage in or conduct business or labor for profit in the usual manner and location, or to operate a place of business open to the public; or

(2) to cause, direct, or authorize any employee or agent to engage in or conduct business or labor for profit in the usual manner and location, or to operate a place of business open to the public.

In 13 V.S.A. § 3355, there are listed a great many exceptions to this prohibition of business operation hardly consistent with the thesis that this is a "common day of rest" act. Central to the issue raised in this case is 13 V.S.A. § 3355(a)(6), which says the law shall not apply to "stores which have no more than 5,000 square feet of interior customer selling space, excluding back room storage, office and processing space." Further on, in 13 V.S.A. § 3355(b), this exception is withdrawn from stores in enclosed shopping malls of more than 20,000 square feet. This last provision was of concern in the case of State v. Grand Union Co., 141 Vt. 656, 449 A.2d 984 (1982), from Washington Superior Court, but does not affect the result reached in this opinion.

The issue has been raised in several procedural ways by three lawsuits heard on appeal at the same term of Court. The instant case raises on report by agreement, under V.R.A.P. 5(a), the following question:

As applied to Ludlow Supermarkets, Inc., d/b/a Clark's Bennington IGA, a supermarket containing approximately 9,000 square feet of interior customer selling space that was open to the public on Sunday, May 17, 1981 and that was not exempted under 13 VSA Section 3355(a)(2) through (a)(7), does Title 13 Chapter 74 violate the United States or Vermont constitutions?

State v. Ames Big N Department Store, 141 Vt. 656, 449 A.2d 984 (1982), from Vermont

District Court, Windsor Circuit, comes to us on interlocutory appeal pursuant to V.R.A.P. 5(b), after the lower court granted, then stayed, its order dismissing the prosecution as unconstitutional under the Vermont Constitution. The third case, State v. Grand Union Co., supra, commenced as a civil action and proceeded to trial. The trial court upheld the law's constitutionality with the exception of subsection 3355(b), which excepted stores located in enclosed malls from the general exemption for small stores. The parties each appealed that portion of the judgment against them. Although the disposition of each of these cases will vary depending on the procedure followed and the result reached below, none presents a factual dispute and all are determined by our resolution of the common question.

At the outset we must set one matter to rest. The State makes the statement that there is no constitutional right to shop on Sunday. This stands constitutional law on its head. Our constitutions are restraints on governmental powers. The rights of citizens are not conditioned on grants given by constitutional fiat, but exist without the aid of expressed governmental permission, subject only to properly authorized circumscription where the public welfare requires. Since the citizens have long since chosen to be governed through a limited grant of authority to each branch of government, it is their right, and this Court's duty, to see that any legislative action prohibiting as a crime otherwise lawful activity is bottomed on the proper exercise of a constitutional power assigned to the legislative branch. State v. Dodge, 76 Vt. 197, 201-02, 56 A. 983, 983-84 (1904); see also Vornado, Inc. v. Hyland, 77 N.J. 347, 364 et seq., 390 A.2d 606, 615 et seq. (1978) (Pashman, J., dissenting). Specifically we are concerned here with the propriety of the legislature's exercise of its general police power, and whether that power has been exercised so as to affect all citizens equally.

Almost all regulatory legislation, particularly when the concern is economic, tends to be uneven in its impact. Such inequalities are not fatal with respect to constitutional standards if the underlying policy supporting the regulation is a compelling one, and the unbalanced impact is, as a practical matter, a necessary consequence of the most reasonable way of implementing that policy. State v. Auclair, 110 Vt. 147, 160, 4 A.2d 107, 113 (1939).

Although Vermont formerly had in place a Sunday closing law held to pass muster under these standards in the case of State v. Giant of St. Albans, Inc., 128 Vt. 539, 268 A.2d 739 (1970), relying on federal equal protection standards enunciated in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), the Vermont legislature has seen fit to amend the Sunday closing law twice since that case was decided. Thus we are called upon to review the enactment as presently constituted.

This new statute, like its predecessors in State v. Rockdale Associates, 125 Vt. 495, 218 A.2d 718 (1966), State v. Giant of St. Albans, Inc., supra; and State v. Shop and Save Food Markets, Inc., 138 Vt. 332, 415 A.2d 235 (1980), contains a list of exemptions, grouped in the present law under some twenty-five headings rather than the longer previous lists, that encompass most, if not all possible commercial activities which are thereby allowed on Sunday, in spite of any supposed need for a day of rest or energy conservation. These activities range from engaging in the real estate business to merchandising any commercial item at all, if the store it is sold in is small enough.

In our cases we have not so far chosen to follow the lead of some states in setting such statutes aside on the ground that they lack a cohesive scheme as a basis for their implementation, because they are riddled with exceptions. See People v. Abrahams, 40 N.Y.2d 277, 353 N.E.2d 574, 386 N.Y.S.2d 661 (1976); Caldor's, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 417 A.2d 343 (1979); Kroger Co. v. O'Hara Township, 481 Pa. 101, 392 A.2d 266 (1978). Compare City of Warwick v. Almac's, Inc., R.I., 442 A.2d 1265 (1982).

It should be said, however, that whatever our duty to give validity and credit to stated legislative purposes, we are not required to accept as underpinning for any law a purpose that, through wide-ranging exceptions or other emasculating devices, the legislature has reduced to a sham or deceit. See State v. Shop and Save Food Markets, Inc., supra, 138 Vt. at 343, 415 A.2d at 241 (Daley and Hill, JJ., concurring). The language of Justice Pashman, dissenting in Vornado, Inc. v. Hyland, supra, is particularly apt:

Irrespective of whether the statutory classification satisfies any of the current Equal Protection tests, it fails abysmally when subjected to scrutiny under a standard too frequently ignored by judges attracted by the intellectual allure of legal niceties incomprehensible to the public--the test of common sense. When examined from that perspective, the idyllic scenario wistfully conjured by the majority to provide the "rational basis" justifying the statutory classification is patently at odds with the realities of the commercial and consumer worlds of 1978. Assuming any "Sunday Closing" legislation with the purpose ascribed to Chapter 119 can be valid, the unreasonableness of this particular statutory manifestation should earn it the condemnation of this Court.

77 N.J. at 365, 390 A.2d at 615-16.

However, there is a different and more critical vulnerability in the Sunday closing law under review here that requires it to be invalidated. It violates Chapter I, Article 7 of the Vermont Constitution. The basis for that conclusion becomes evident in the analysis that follows.

Each amendment to our law since State v. Giant of St. Albans, Inc., supra, was decided has directed itself to defining restraints and exceptions to those restraints that result, among other consequences, in forcing large grocery stores to close one day a week, while small grocery stores may remain open. In the 1976 amendment this purpose went unstated, but was advanced in support of the enactment during argument before us in State v. Shop and Save Food Markets, Inc., supra. By 1981, when the amendment as it now appears before us was passed, that objective was expressly set out as "to promote the economic health of small business enterprises." 13 V.S.A. § 3352.

It can hardly be questioned today that benefit to small stores is the most crucial of the legislative objectives behind the Sunday closing law, stated or otherwise, or that this purpose, being selectively beneficial by design and not as a mere incident to its operation, must be tested by appropriate constitutional standards.

In McGowan v. Maryland, supra, the United States Supreme Court measured a state law by the standards of the United States Constitution. If the states are to have any meaningful separate sovereign existence, this consideration is of great importance, for the concept of...