Zayre Corp. v. Attorney General

Decision Date21 April 1977
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Edward J. Barshak, Boston, for plaintiff.

Robert V. Greco, Asst. Atty. Gen. (Thomas A. Waldron, Springfield, with him), for defendant.

Alfred J. Mainini, Framingham, on brief for Christian Civil Liberties Union, amicus curiae.

William N. Wheeler and Charles J. Wilkins, Boston, on brief for Church League for Civic Welfare and others, amicus curiae.

Daniel A. Taylor, Chief Legal Counsel and Marcia Casey March, Boston, Asst. Legal Counsel, on brief, for Michael Dukakis, Governor of the Commonwealth and another, amicus curiae.

Robert M. Segal and Richard W. Coleman, Boston, on brief, for Massachusetts State Labor Council, AFL-CIO, amicus curiae.

Daniel F. Cashman, Rochester, N.Y. and Alan S. Kuller, New York, on brief, for Caldor Inc., amicus curiae.


LIACOS, Justice.

Laws which regulate trade and commerce on Sundays have been in existence in this Commonwealth and elsewhere since colonial times. These laws popularly have been known as 'Sunday closing laws,' 'Blue Laws' or 'common day of rest laws.' They once were challenged unsuccessfully as being unconstitutional in that they reflected an impermissible establishment of religion. 2 Various courts, including the United States Supreme Court, have held that such laws are a valid exercise of State police power. See McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). After a relative period of quiescence, new attacks on such laws have been mounted recently. These recent challenges, while recognizing generally that such laws may reflect a valid exercise of State police power, proceed on the theory that the exemptions to the prohibition contained in such laws are so random, arbitrary and unrelated to legitimate State purposes that they deny those subject to the prohibition due process and equal protection of law. 3

Such challenges have met with varying degrees of success. 4 The recent decision of the New York Court of Appeals in People v. Abrahams, 40 N.Y.2d 277, 386 N.Y.S.2d 661, 353 N.E.2d 574 (1976), declaring invalid that State's Sunday closing law on the grounds that the entire scheme of statutory exemptions was so random and arbitrary as to be in derogation of express constitutional guarantees, has given new hope to those who question the validity of such laws. Soon after that New York decision, a lower court in Connecticut, Connecticut v. Graber, Conn.Supp. (C.P. New Britain 1976); a as had one in Vermont, Vermont v. Ludlow Supermarket, Inc., No. 1085--75 (Dist. Ct. Windham Cir. 1975), proceeded to find constitutional infirmity in their State's statutory scheme.

In apparent reliance on this seeming avalanche of judicial precedent the plaintiff, which heretofore apparently had observed the general prohibition of G.L. c. 136, § 5, the Massachusetts 'Blue Laws,' opened for business on Sunday, November 28, 1976, the first weekend of the so called Christmas rush, in Springfield. The plaintiff was complained of in a District Court for violations of the statute. The plaintiff closed the following Sunday, December 5 and on December 8 filed a complaint with the county court seeking declaratory and injunctive relief against the enforcement of G.L. c. 136, §§ 5, 6, and the pending criminal prosecutions.

The matter first came on for hearing before a single justice on December 10, 1976. None of the requested relief was granted by him. Nevertheless, the plaintiff and many retailers similarly affected by the statute, opened for business on the two subsequent Sundays, December 12 [372 Mass. 426] and 19. Such business establishments became the subject of over 300 criminal complaints now pending in the District Courts. 5 The record indicates that the plaintiff did not open after Sunday, December 19, that is, after the end of the so called Christmas shopping season. 6 On December 24, the single justice certified a class represented by Zayre Corp. consisting of 'retailers who wish to open for business on Sundays' and the case was thereupon reserved and reported without decision to the full court on a statement of agreed facts, appendix and briefs. 7

The statement of agreed facts shows that the plaintiff is a Delaware corporation which operates thirty-four retail discount department stores in Massachusetts, with usual places of business in Natick and Framingham. The plaintiff also sells a wide variety of merchandise some of which is clearly within the exemptions of G.L. c. 136, § 6, others of which are arguably so, but the great majority of which, in terms of quantity and sales volume, are items whose sale on Sunday is prohibited by § 5. 8

The members of the plaintiff class include, but are not limited to, various department stores, discount, hardware and home supply stores and the like. The members of the class are typically located in shopping centers, downtown and suburban business areas and 'free-standing areas adjacent to highways.' A department store in the class may employ over 150 employes, of which 80 to 100 may be working at any given time. Other members of the class may have only two or three employees. Prior to November 28, the class members typically observed the provision of § 5.

The gravamen of the plaintiff's argument is not only that the entire scheme of exemptions is arbitrary and not rationally related to a legitimate State purpose, but also that certain types of stores, in particular health and sanitary supply stores (sometimes called health and beauty aid stores), as well as certain gift stores, are able to operate freely on Sunday, either due to the exemptions in the statute or the pattern of local law enforcement. As such the claim is that the statute operates in an arbitrary or irrational manner. As evidence of this, the plaintiff points to the statement of agreed facts which shows that in so far as the health and beauty aid stores are concerned, they tend to be located in areas coextensive with those of the members of the plaintiff class and typically employ two to four employees on Sunday. Some, but not all, of these stores rope off or cover areas containing nonexempt merchandise.

So far as the so called gift stores are concerned, the parties agreed that the merchandise in those stores was different to some extent than merchandise sold by the plaintiff, but were unable to agree that the goods sold in these stores were within the exemption of G.L. c. 136, § 6(29). It appears that members of the plaintiff class sell some items similar to those sold in gift stores. It was agreed that these gift stores typically are open on Sunday, have not been prosecuted for violations of § 5 and generally do not rope off or cover up prohibited classes of merchandise on Sunday. 9

The plaintiff also apparently conceded in the statement of agreed facts that the provisions of G.L. c. 136, §§ 5, 6, had, prior to the case, been observed by most, but not all retailers, and had been generally, but not universally enforced. 10

Having set forth the facts necessary to our decision, we go on to consider whether G.L. c. 136, §§ 5, 6, are constitutionally infirm. It is important to point out that this case does not concern the validity of the law per se in that all sides agree the subject of the legislation is within the police power of the State. All we are concerned with 11 is whether the pattern of exemptions renders the statute in its present form constitutionally infirm. To consider these issues, a consideration of the legislative and judicial history of the statute is of some import.

1. Legislative and Judicial History. It is not necessary to detail the complete history of Sunday closing laws either in the United States or Massachusetts. The former task was done in both the main opinion, and in the separate opinion of Mr. Justice Frankfurter, in McGowan v. Maryland, 366 U.S. 420, 459, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and the latter was adverted to in the Frankfurter opinion and set forth in greater detail by the minority members of the Governor's Special Committee to Consider the Laws Relative to Lord's Day Observance. 1962 Senate Doc. No. 404, 17--27. It is sufficient to state that Massachusetts has had such a law since 1650. Id. at 17. See McGowan v. Maryland, supra, at 545--546, 81 S.Ct. 1101, app. I to opinion of Frankfurter, J.; Note, a General Survey of the Sunday and Holiday Laws in New England, 39 B.U.L.Rev. 553 (1959). The general philosophy of the various enactments and versions of the Sunday law up to and including the present G.L. c. 136 is to begin with a general prohibition of all work, labor and amusements on Sunday and then to engraft on that general prohibition the exemptions which the Legislature deems required by necessity or the general purpose of the statute. As noted by the minority members of the special committee, this process of engrafting exemptions has been both active and continuous in the twentieth century. 12 1962 Senate Doc. No. 404 at 18.

The seminal event concerning our view in this case occurred in 1961, when the United States Supreme Court reversed the decision of a three-judge Federal District Court and upheld the prior version of the Massachusetts Sunday law in Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961), rev'g 176 F.Supp. 466 (D.Mass.1959). In that case, the statute at issue was challenged on grounds that it constituted an establishment of religion or inhibited the free exercise thereof and further that the exemptions to the law were so numerous and arbitrary as to have no rational basis. 366 U.S. at 622 & [372 Mass. 430] n.2, 81 S.Ct. 1122. The Court in Gallagher, as it did in McGowan v. Maryland, supra, rejected the equal protection challenges as well as the other challenges. It held as...

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