Turner v. State

• Citation: 474 A.2d 1297,299 Md. 565
• Decision Date: 24 May 1984
• Docket Number: No. 79,79
• Parties: Mary Rose TURNER v. STATE of Maryland. Sept. Term 1983.
• Court: Court of Appeals of Maryland

Page 565

299 Md. 565

474 A.2d 1297

Mary Rose TURNER v. STATE of Maryland.

No. 79 Sept. Term 1983.

Court of Appeals of Maryland.

May 24, 1984.

Joseph F. Murphy, Jr. and Russell J. White, Towson (Lynne Brueck, Towson, on the brief), for appellant.

Eleanor M. Carey, Deputy Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., and Jillyn K. Schulze, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

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

DAVIDSON, Judge.

The principal question in this case is whether Maryland Code (1957, 1982 Repl.Vol.), Art. 27, §§ 152 and 153 (Female Sitters Law), which makes it unlawful to employ female sitters, is a violation of the Maryland Declaration of Rights, Art. 46, the Maryland Equal Rights Amendment (ERA). A second question concerns whether an employer of female sitters has standing to raise this question.

Article 46 of the Maryland Declaration of Rights provides "Equality of rights under the law shall not be abridged or denied because of sex."

Article 27, § 152 provides:

"It shall be unlawful for any proprietor, lessee or manager of any variety entertainment or concert hall (whether an admittance fee is charged or not), to employ, engage or allow any female sitters (or by whatever other name they may be called) in or about said entertainment or concert hall, building, room or premises; and all females who are allowed in or about the said premises who shall drink, smoke or partake of any kind of eatables or refreshments at the expense of others, or solicit others to purchase such things as may be purchased there, upon which they shall receive or expect to receive a commission, or who may be paid a regular salary therefor, or who participate in any way in the profits thereof, shall be deemed sitters under this section." (Emphasis added.)

Article 27, § 153 provides in pertinent part:

"Any person convicted of a violation of § 152 of this article shall be fined not less than two hundred dollars nor more than one thousand dollars, or be confined in jail or the house of correction for a period of not less than two months nor more than twelve months, or be both fined and imprisoned...."

The petitioner, Mary Rose Turner (employer), is the owner and manager of a tavern who employs female dancers to provide entertainment for the tavern's patrons. Certain contracts of employment entered into between the employer and certain female dancers required the dancers to circulate among the patrons and "produce sales." ¹

On 5 November 1982, members of the Maryland State Police, operating as undercover agents, entered the employer's tavern. During the evening, two females employed as dancers sat down at a police officer's table. After engaging in conversation with them, the police officer bought some wine for each. Another officer observed an individual working behind the bar make entries on a ledger sheet indicating the number of drinks purchased for each female employee during the evening.

On 10 November 1982, the employer was arrested and charged with two violations of the Female Sitters Law. On 7 December 1982, in the District Court of Maryland sitting in St. Mary's County, the employer was convicted of both violations.

On 8 December 1982, the employer filed an appeal to the Circuit Court for St. Mary's County. There, the employer moved to dismiss the charges on the ground, among others, that the Female Sitters Law violated the Maryland ERA and the equal protection of the laws as guaranteed by the 14th Amendment to the United States Constitution and by Article 24 of the Maryland Declaration of Rights.

The State opposed the motion on the ground, among others, that the employer had no standing to challenge the constitutional validity of the statute. The State pointed out that under the statute both male and female employers could be prosecuted for employing female sitters and maintained that, consequently, the statute did not discriminate between male and female employers. The State concluded that under these circumstances the employer could not show that the statute adversely affected her constitutional rights. Additionally, the State opposed the motion on the ground that the Female Sitters Law did not violate the Maryland ERA or equal protection of laws guaranteed by the United States and Maryland Constitutions.

The Circuit Court recognized the general rule that a litigant has no standing to assert the constitutional rights of others. Additionally, the Circuit Court took judicial notice of the fact that males as well as females are now employed as sitters, thus recognizing that the constitutional rights of female sitters might be implicated. The Circuit Court, however, then determined that, because the Female Sitters Law was neutral in its application to male and female employers and imposed the same burdens upon male and female employers, that law was constitutional.

On 16 May 1983, after a court trial, the employer was found guilty of two violations of the Female Sitters Law and was fined $500. The employer filed a petition for a writ of certiorari that we granted. In this Court, the State conceded that the employer had standing to challenge the Female Sitters Law and that the Female Sitters Law was unconstitutional under both the United States and the Maryland Constitutions. We agree that the employer has standing and that the statute violates the Maryland ERA. Accordingly, we shall reverse the judgment of the Circuit Court.

I Standing

As a general rule, a person may not assert the constitutional rights of others. See Joseph H. Munson Co. v. Secretary of State, 294 Md. 160, 171, 448 A.2d 935, 941 (1982), cert. granted, --- U.S. ----, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983). More particularly, ordinarily in criminal prosecutions the accused has the right to assert the invalidity of the law upon which the prosecution is based. There must be a showing, however, that the accused's constitutional rights are adversely affected by the statute. It is not sufficient for the accused to show that the statute may impair the rights of others. Thus, ordinarily in a criminal prosecution involving an allegedly discriminatory statute, there must be a showing that the accused's constitutional rights are adversely affected by the complained of discrimination. Clark v. State, 284 Md. 260, 264-65, 396 A.2d 243, 246, cert. denied, 444 U.S. 858, 100 S.Ct. 119, 62 L.Ed.2d 77 (1979); State v. Cherry, 224 Md. 144, 155, 167 A.2d 328, 333 (1961); State v. Case, 132 Md. 269, 272, 103 A. 569, 570 (1918).

This Court has recently recognized that there are circumstances under which the general rule that a person may not assert the constitutional rights of others should not be applied. Joseph H. Munson Co., 294 Md. at 171, 448 A.2d at 940. One factual element to be considered in determining whether the rule should apply in a particular case is the relationship of the litigant to the third person whose rights are being asserted. When a relationship between a litigant and a third person is such that the enjoyment of the third person's rights are "inextricably bound up with the activity the litigant wishes to pursue"; the litigant is "very nearly, as effective a proponent of the right" as the third person; and the rights of the third person are likely to be " 'diluted or adversely affected,' " the general rule does not apply. Singleton v. Wulff, 428 U.S. 106, 115-16, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976). See, e.g., Carey v. Population Services International, 431 U.S. 678, 684-85, 97 S.Ct. 2010, 2015, 52 L.Ed.2d 675 (1977) (seller permitted to assert buyer's constitutional rights); Craig v. Boren, 429 U.S. 190, 196, 97 S.Ct. 451, 455-56, 50 L.Ed.2d 397 (1976) (seller permitted to assert buyer's constitutional rights); Singleton, 428 U.S. at 115-16, 96 S.Ct. at 2874 (physicians permitted to assert patients' constitutional rights); Eisenstadt v. Baird, 405 U.S. 438, 445-46, 92 S.Ct. 1029, 1034, 31 L.Ed.2d 349 (1972) (distributor permitted to assert distributee's constitutional rights); NAACP v. Alabama, 357 U.S. 449, 458-59, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958) (association permitted to assert its members' constitutional rights); Barrows v. Jackson, 346 U.S. 249, 259, 73 S.Ct. 1031, 1036, 97 L.Ed. 1586 (1953) (owner of real estate subject to racial covenant permitted to assert non-caucasians' constitutional rights); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925) (owner of private school permitted to assert potential pupil's constitutional rights).

Indeed, as long ago as 1915, the Supreme Court recognized that a litigant may assert a third party's rights when the relationship between them is that of an employer and an employee. Truax v. Raich, 239 U.S. 33, 38, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915). Similarly, in Joseph H. Munson Co. v. Secretary of State, 74 L.Ed.2d 949, 294 Md. 160, 171, 448 A.2d 935, 940 (1982), cert. granted, --- U.S. ----, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983), this Court has more recently said:

"Although ordinarily one may not assert the constitutional rights of others, nevertheless where a statute is directed at persons with whom the plaintiff has a business or professional relationship, and impairs the plaintiff in that relationship with such other persons, thereby threatening real and immediate injury to the plaintiff, he is normally accorded standing to challenge the validity of the statute." (Emphasis added.)

The Female Sitters Law makes it unlawful for both males and females to employ female sitters and, therefore, cannot be challenged as violative of the Maryland ERA on the ground that it establishes a discriminatory classification based upon the sex of the employer. The statute however, prohibits the employment of females as sitters, but does not prohibit the employment of males and, therefore, can be challenged on the ground that it establishes a discriminatory...