Kim v. Bd. of Liquor Lic. Comm'rs

Myong Nam Kim, et al. v. Board of Liquor License Commissioners for Baltimore City, No.
137, September Term 2021; Miae Han, et al. v. Board of Liquor License Commissioners
for Baltimore City, No. 140, September Term 2021; In the Matter of the Petition of Myong
Nam Kim, Yong Doo Park, and Myongnam, Inc., No. 885, September Term 2021; In the
Matter of the Petition of Myong O. Friley, et al., No. 886, September Term 2021. Opinion
by Beachley, J.
ONE SUBJECT CLAUSE—ARTICLE III, § 29 OF THE MARYLAND
CONSTITUTION
EQUAL PROTECTION CLAUSE—FACIALLY NEUTRAL GOVERNMENT
ACTION—STRICT SCRUTINY—EVIDENCE OF DISCRIMINATORY INTENT
REQUIRED
During the 2020 legislative session, the Maryland General Assembly enacted
Chapter 389, a bill that affected liquor licenses in the 45th legislative district in two ways.
First, the bill allowed Class B beer, wine, and liquor license holders in a certain area to
exchange their licenses for Class B-D-7 licenses, provided that the license holder executed
a memorandum of understanding with a local community association. Second, the bill
restricted the hours of operation for Class B-D-7 licenses in a completely separate area of
the 45th legislative district.
Chapter 389 of the 2020 legislative session took effect on July 1, 2020. Thereafter,
three separate liquor establishments, each possessing a Class B-D-7 license, were cited for
being open outside the hours authorized by Chapter 389. The three establishments are:
M&M Lounge, Q’s Liquors and Tavern, and Cocky Lou’s (hereinafter the “Licensees”).
M&M Lounge was cited twice.
The Licensees challenged their citations before the Board of Liquor License
Commissioners for Baltimore City (the “Board”). Specifically, the Licensees argued that
Chapter 389 was unconstitutional for two reasons. First, the Licensees argued that Chapter
389 violated Article III, § 29 of the Maryland Constitution, which requires that all laws
enacted embrace but a “single subject.” Second, the Licensees argued that Chapter 389
violated equal protection as guaranteed by the Fourteenth Amendment to the United States
Constitution and Article 24 of the Maryland Constitution, asserting that the law improperly
targeted African Americans because the restriction of operating hours impacted a
predominantly African American community.
In all four cases, the Board held that the law did not violate the single subject
requirement. Regarding the equal protection argument, the Board held that the Licensees
failed to produce sufficient evidence to support their equal protection claim.
The Licensees sought judicial review in the Circuit Court for Baltimore City. The
four cases were divided between two judges. One judge affirmed the Board in his two
cases, and the Licensees appealed those decisions. The other judge affirmed the Board’s
decision regarding the single subject requirement, but reversed the Board on the basis of
equal protection, and the Board appealed those two decisions. Because of the similarity of
counsel, the issues, and the legal arguments presented, this Court consolidated the four
appeals.
Held: Decision of the Board of Liquor License Commissioners affirmed in all four
cases.
Chapter 389 does not violate the one subject requirement in Article III, § 29 of the
Maryland Constitution. The portion of the law allowing an exchange of liquor licenses in
one part of the district, and the other portion restricting the operating hours for certain
licenses in another part of the district “refer to and are germane to the same subject
matter”—the regulation of alcohol in the 45th legislative district. Md. Classified Emps.
Ass’n, Inc. v. State, 346 Md. 1, 16 (1997) (quoting Baltimore v. Reitz, 50 Md. 574, 579
(1879)).
The Board did not err in declining to reach the equal protection claim. Where
government action is facially neutral, and a challenger alleges that the action discriminates
against a suspect class (such as race) and seeks strict scrutiny review, the challenger may
not simply rely on evidence of a disparate impact to obtain strict scrutiny review. Rather,
the challenger must produce evidence of discriminatory purpose or intent before the burden
shifts to the government (pursuant to strict scrutiny) to defend its conduct.
Here, although the Licensees produced evidence showing a disparate racial impact
based on the restriction on operating hours, they produced no evidence showing any
discriminatory purpose on the part of the General Assembly. Accordingly, they failed to
meet their evidentiary burden for establishing strict scrutiny review of Chapter 389, and
the Board correctly declined to consider their argument.
Circuit Court for Baltimore City
Case Nos. 24-C-20-003794,
003795, 004827, 004828 REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
Nos. 137, 140, 885, and 886
September Term, 2021
MYONG NAM KIM, ET AL.
v.
BOARD OF LIQUOR LICENSE
COMMISSIONERS FOR BALTIMORE CITY
MIAE HAN, ET AL.
v.
BOARD OF LIQUOR LICENSE
COMMISSIONERS FOR BALTIMORE CITY
_______________________________________
IN THE MATTER OF THE PETITION OF
MYONG NAM KIM, YONG DOO PARK,
AND MYONGNAM, INC.
_______________________________________
IN THE MATTER OF THE PETITION OF
MYONG O. FRILEY, ET AL.
_______________________________________
Kehoe,
Beachley,
Shaw,
JJ.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-06-29 11:52-04:00
Opinion by Beachley, J.
Suzanne C. Johnson, Clerk
Filed: June 29, 2022
In July of 2020, the Board of Liquor License Commissioners for Baltimore City (the
“Board”) cited three separate liquor establishments (the “Licensees”) for violating a newly
enacted law which limited the hours of operation for certain liquor licenses in a boundary
within the 45th legislative district.1 One of the Licensees was cited twice, resulting in four
total violations. The Licensees unsuccessfully challenged their citations before the Board
by arguing that the new law was unconstitutional in two ways: the law violated the
Maryland State Constitution’s “one subject” requirement, and that the law violated equal
protection as guaranteed by the Fourteenth Amendment to the United States Constitution
and Article 24 of the Maryland State Constitution. The Board rejected the Licensees’
argument regarding the one subject requirement, and “decline[d] to rule” on the equal
protection argument because the Licensees “failed to provide satisfactory record evidence”
to support their claims. Subsequently, the Licensees filed petitions for judicial review in
the Circuit Court for Baltimore City. The four petitions for judicial review went before
two different Baltimore City Circuit Court Judges that resulted in different outcomes—one
judge affirmed the Board’s decision in two cases while the other judge reversed.
The judge who affirmed the Board determined that the new law did not violate the
one subject requirement, and that the Licensees failed to provide sufficient evidence to
support their equal protection claims. The judge who reversed the Board, however,
1
The 45th legislative district is located in Baltimore City. Its wards, precincts, and
blocks are described in Md. Code (1984, 2021 Repl. Vol.), § 2-202(45) of the State
Government Article. We note that this statute was recently amended pursuant to Joint
Resolution 1 of the 2022 legislative session. Those amendments, however, are immaterial
to our decision.
determined that the Board erred in its equal protection analysis. The Licensees timely
appealed from the judge who affirmed, and the Board timely appealed from the judge who
reversed. While the cases were pending, this Court issued an Order consolidating all four
appeals, noting that “[t]he petitioners in all four cases were represented by the same counsel
and presented virtually the same legal arguments.” Accordingly, the issues we must now
decide in these consolidated appeals are:
1. Whether the newly enacted law violates the “one subject” clause of Article III, § 29
of the Maryland Constitution.
2. Whether the Board correctly rejected the Licensees’ equal protection claim due to
insufficient evidence.
As we shall explain, we conclude that the law does not violate the one subject clause.
Additionally, we hold that the Licensees presented insufficient evidence to proceed with
their equal protection claim. Accordingly, we affirm the Board’s decision in all four cases.2
FACTS AND PROCEEDINGS
Because of the somewhat cumbersome nature of the underlying facts and
proceedings, we shall proceed as follows. First, we explain the procedural history of
Chapter 389 of the Maryland Laws of 2020—the law which went into effect on July 1,
2020. The Licensees concede that they violated this law, but argue that it is
unconstitutional. Second, we explain the underlying facts and the procedural history that
brought about the consolidated appeals.
2
The judge who affirmed decided cases 24-C-20-003794 and 24-C-20-003795. The
judge who reversed decided cases 24-C-20-004827 and 24-C-20-004828.
2
According to its website, the Board is authorized by law to issue several different
types of liquor licenses within Baltimore City. Liquor License Board, License Types
https://llb.baltimorecity.gov/license-types (last accessed June 1, 2022). In this case, we are
concerned with Class B-D-7 beer, wine, and liquor licenses. The Board issues Class B-D-
7 liquor licenses to “taverns,” and, subject to other restrictions, these establishments may
generally operate seven days a week from 6:00 a.m. to 2:00 a.m. Id. All the Licensees in
this case possess Class B-D-7 beer, wine, and liquor licenses.
On January 22, 2020, Senator Cory McCray, who represents Maryland’s 45th
legislative district, sponsored and introduced SB 571. We refer to the Fiscal and Policy
Note for SB 571, which accurately noted that the bill would
alter[] the hours of sale for a Class B-D-7 beer, wine, and liquor license
located in an area of Baltimore City bounded on the north by North Avenue,
on the west by Central Avenue and Harford Avenue, on the south by
Monument Street as it runs from North Central Avenue to North Wolfe Street
and McElderry Street as it runs from North Wolfe Street to Luzerne Avenue,
and on the east by Luzerne Avenue as it runs from Monument Street to
Federal Street, then by Rose Street as it runs from Federal Street to North
Avenue. The hours of sale for a license holder in this area are from 9 a.m. to
10 p.m. and may not be extended if they begin later than 9 a.m. or end after
10 p.m. The bill takes effect July 1, 2020.[3]
The purported goal of the bill was to reduce crime in the area. See Cory V. McCray, Vote
Yes on Senate Bill SB: 571 (Feb. 28, 2020) (stating that a reduction in operating hours for
certain liquor establishments will result in a reduction in violent crime). The Baltimore
3
As the Licensees correctly note in their Reply Brief, SB 571’s restriction on hours
of operation was not limited to Class B-D-7 licenses in the designated boundary.
Specifically, the restriction in hours within the boundary would apply to certain Class A
and Class D liquor licenses.
3
City Senate Delegation “voted unanimously in favor of” the bill. The Senate, with minor
amendments, voted to approve the bill, and on March 15, 2020, the Senate referred the bill
to the House. Following a first reading, the bill was forwarded to the House Economic
Matters Committee. Apparently, however, the Economic Matters Committee declined to
hold a hearing on the bill, and the bill died.
While SB 571 was working its way through the Senate, on February 5, 2020,
Delegates Stephanie Smith, Talmadge Branch, and Tony Bridges introduced HB 954, a bill
which would also impact liquor sales in the 45th legislative district. HB 954, as originally
written, applied to an area “bounded by the unit block of West Preston Street, the 1200
block of North Charles Street, the 1200 block of Morton Street, and the unit block of West
Biddle Street[.]” In that bounded region, which we note is completely separate from the
boundary described in SB 571, HB 954 would
authoriz[e] a Class B beer, wine, and liquor license holder in a certain
legislative district to exchange the license for a Class B-D-7 beer, wine, and
liquor license if the licensed premises is in an area bounded by certain streets
and an applicant executes a memorandum of understanding with a certain
community association; providing that a certain license holder is authorized
to provide outdoor table service, authorizing the [Board] to make issuance or
renewal of a certain license conditional on the substantial compliance of
applicants entered into a certain memorandum of understanding; and
generally relating to alcoholic beverages in Baltimore City.
2020 Sess., House Bill 954, First Reading (available at https://mgaleg.maryland.gov/
2020RS/bills/hb/hb0954f.pdf). Simply put, HB 954 as initially written would apply to a
completely separate boundary within the 45th legislative district than SB 571, and would
allow Class B liquor license holders to exchange their licenses for Class B-D-7 licenses,
4
provided that the license holders executed a memorandum of understanding with a local
community association.
HB 954 passed unanimously in the House, and on March 15, 2020, following a first
reading in the Senate, the bill was sent to the Senate’s Education, Health and
Environmental Affairs Committee. That Committee voted to report the bill as “favorable.”
While on the Senate floor, Senator McCray moved to amend the bill by adding to HB 954
the language from his previously sponsored SB 571 regarding the restriction of hours for
liquor licenses contained within a separate defined boundary of the 45th legislative district.
After the Senate approved the bill with Senator McCray’s amendment, the House
unanimously accepted the Senate amendment, resulting in the bill’s passage. The new law
was enacted on May 8, 2020, as Chapter 389 of the 2020 regular legislative session.
As enacted, Chapter 389 amended the Alcoholic Beverages Article as follows. First,
it modified Md. Code (2016, 2020 Supp.), § 12-903 of the Alcoholic Beverages Article
(“AB”) by adding the following language:
(F) In the 45th legislative district, a Class B beer, wine, and liquor license
may be exchanged for a Class B-D-7 beer, wine, and liquor license if:
(1) the licensed premises is in an area bounded by the unit block of
West Preston Street, the 1200 block of North Charles Street, the 1200 block
of Morton Street, and the unit block of West Biddle Street; and
(2) the applicant executes a memorandum of understanding with the
Mount Vernon-Belvedere Improvement Association.
Chapter 389 also modified AB § 12-905, a statute concerning Class B-D-7 liquor
licenses, by adding the following language:
The hours of sale are from 9 A.M. to 10 P.M. for a license holder in an area
bounded on the north by North Avenue, on the west by Central Avenue and
Harford Avenue, on the south by Monument Street as it runs from North
5
Central Avenue to North Wolfe Street and McElderry Street as it runs from
North Wolfe Street to Luzerne Avenue, and on the east by Luzerne Avenue
as it runs from Monument Street to Federal Street, then by Rose Street as it
runs from Federal Street to North Avenue.
We note that several sections of the Alcoholic Beverages Article have been
amended since the enactment of Chapter 389 of the 2020 legislative session. Nevertheless,
the provision restricting the hours for Class B-D-7 liquor licenses within the defined
boundary of the 45th legislative district remains unaltered. See AB § 12-2004(c)(4). With
this legislative background in mind, we turn to the underlying facts and procedural history
that brought about these appeals.
The Licensees in this case consist of the following liquor establishments: M&M
Lounge, Q’s Liquors and Tavern, and Cocky Lou’s. All of the Licensees possess Class
B-D-7 beer, wine, and liquor licenses. The Licensees do not contest that their liquor
establishments are located within the boundary defined in Chapter 389 that restricted the
hours of operation for B-D-7 liquor licenses. Nor do they contest that, in July 2020, each
one of them was operating outside the hours authorized by Chapter 389.4
In response to their citations, the Licensees separately challenged the legality of
Chapter 389 with the Board. In all cases, the Licensees proffered two arguments: that
Chapter 389 violated the one subject requirement contained in Article III, § 29 of the
Maryland Constitution, and that Chapter 389 violated the Fourteenth Amendment’s Equal
4
M&M Lounge was cited for being open on July 20, 2020, at 11:11 p.m., and again
on July 29, 2020, for being open at 8:28 a.m. Q’s Liquors and Tavern was cited for being
open on July 10, 2020, at 10:50 p.m. Cocky Lou’s was cited for being open on July 29,
2020, at 8:14 a.m.
6
Protection Clause (and, concomitantly, Article 24 of the Maryland Constitution). In all
cases, the Board concluded that the legislation did not violate Article III, § 29 of the
Maryland Constitution. Additionally, the Board concluded that the Licensees produced
insufficient evidence to support their argument that Chapter 389 violated the Equal
Protection Clause. The Licensees then filed petitions for judicial review in the Circuit
Court for Baltimore City. As previously noted, the four cases were assigned to two judges:
one who affirmed the Board, and one who reversed the Board. The judge who affirmed
the Board rejected the Licensees’ argument regarding the one subject requirement and
agreed with the Board that the Licensees presented insufficient evidence to support their
Equal Protection Clause argument. The judge who reversed the Board concluded that there
was no one subject violation, but reversed the Board’s decision concerning the Equal
Protection Clause, finding that the Board applied the wrong legal standard. In all four
instances, the losing party timely noted an appeal.
STANDARD OF REVIEW
This Court has previously described the appropriate standard of review for a
decision by a local liquor licensing board as follows: “In reviewing the decision of an
administrative agency, this Court performs the same function as the circuit court. We
review the decision of the agency, not that of the circuit court.” Dakrish, LLC v. Raich,
209 Md. App. 119, 141 (2012) (citations omitted) (quoting Bd. of License Comm’rs for
Prince George’s Cnty. v. Global Express Money Ords., Inc., 168 Md. App. 339, 344
(2006)). “Our role is limited to determining if there is ‘substantial evidence in the record
as a whole to support the agency’s findings and conclusions, and to determine if the
7
administrative decision is premised upon an erroneous conclusion of law.’” Id. at 141-42
(quoting Global Express Money Ords., Inc., 168 Md. App. at 345). Although we review
an agency’s purely legal decisions de novo, Patten v. Bd. of Liquor License Comm’rs for
Balt. City, 107 Md. App. 224, 230 (1995), we accord a degree of deference to an agency’s
decision involving the interpretation and application of a statute which that agency
administers, Bd. of Liquor License Comm’rs for Balt. City v. Kougl, 451 Md. 507, 514
(2017).
Additionally, we note that, “Under settled Maryland law, appellate review of
administrative decisions is limited to those issues and concerns raised before the
administrative agency.” Cap. Com. Props., Inc. v. Montgomery Cnty. Plan. Bd., 158 Md.
App. 88, 96 (2004) (citing Mayor & City Council of Rockville v. Woodmont Country Club,
348 Md. 572, 582 n.3 (1998)).
DISCUSSION
Our review of the Board’s decision requires us to decide two issues: (1) whether
the Board erred as a matter of law when it concluded that Chapter 389 did not violate the
one subject clause of the Maryland Constitution5; and (2) whether the Board erred when it
concluded that the Licensees failed to produce sufficient evidence to support their claim
that Chapter 389 violated the Equal Protection Clause. We conclude that the Board did not
err in either instance.
5
The Licensees raised no challenge regarding the requirement in Article III, § 29
that every bill the General Assembly enacts must be “described in its title[.]”
8
I. THE ONE SUBJECT CLAUSE
Article III, § 29 of the Maryland Constitution provides, in relevant part, that “every
Law enacted by the General Assembly shall embrace but one subject.” In their brief, the
Licensees argue that “limiting the hours of operation of one area of Baltimore City and
granting the ability to exchange a Class B license for a Class BD7 license in a separate
discrete area are two different subjects[.]” They therefore assert that the provision limiting
the hours of operation “should be stricken from the law as unconstitutionally violative of
Article [III] § 29 of the Maryland Constitution: that every Law enacted by the General
Assembly shall embrace but one subject.” We reject the Licensees’ argument and hold
that Chapter 389 does not violate the “one subject” requirement of Article III, § 29 of the
Maryland Constitution.
According to our research, the last time any Maryland appellate court expressly
decided whether a law violated the one subject clause was in 2002 in Delmarva Power &
Light Co. v. Pub. Serv. Comm’n, 371 Md. 356 (2002). The genesis of the one subject
violation there arose from the issuance of a Court of Appeals opinion on April 8, 2002, the
last day of the 2002 regular session of the General Assembly. In that opinion, the Court of
Appeals held that a certain Public Service Commission (“PSC”) regulation was invalid for
failing to follow the regulation-making provisions of the Administrative Procedure Act.
Id. at 359-62. The purpose of the regulation in question was to place “certain requirements
on the electric and gas utilities that remained subject to regulation by the PSC and impose[]
certain limitations on the relationships that those utilities had with their non-regulated
affiliates.” Id. at 359.
9
Earlier in the 2002 Regular Session, the House of Delegates introduced House Bill
135 which “had the very narrow purpose of creating a special, non-lapsing Public Service
Commission and Office of People’s Counsel Fund to fund the operations of the PSC and
the Office of People’s Counsel (OPC).” Id. at 362. The Senate, however, had been
working on a similar bill during the legislative session, and referred its own version, SB
620, to the Senate Finance Committee. Id. at 363. Apparently, “the Senate bill had a
number of features not included in the House Bill.” Id.With amendments added by the Finance Committee, SB 620 passed the
Senate on March 15—six days before the House of Delegates passed HB
135.
Each House amended the other’s bill to conform with its own version.
The Senate amended HB 135 to conform with SB 620, and the House of
Delegates amended SB 620 to conform with HB 135. Neither House was
initially willing to accept the other’s amendments, so, on April 4, 2002, both
bills were referred to a Conference Committee consisting of three Senators
and three Delegates. That was where they lay when, on the morning of April
8, [the Court of Appeals] opinion was filed.
Id.The Conference Committee resolved the differences between HB 135 and SB 620
largely by accepting the Senate amendments to HB 135. Id. The Committee, however,
upon learning of the Court of Appeals’s opinion striking down the PSC’s regulation, added
additional language to HB 135 that retroactively excused the PSC from complying with
the Administrative Procedure Act, effectively overturning the Court of Appeals’s decision.
Id. at 363-64. According to available legislative history materials, it appeared that the
Conference Committee, in making its recommendations to the two Houses, failed to reveal
that the bill now included a provision that retroactively excused the PSC from complying
10
with the Administrative Procedure Act. Id. at 365. In the late-night hours before the
session officially ended, both the Senate and the House of Delegates passed HB 135, and
the Governor signed the bill on May 16, 2002. Id. at 366.
The bill was subsequently challenged for violating the one subject clause. The
Court of Appeals began its analysis by noting the rationale behind the adoption of Article
III, § 29 of the Maryland Constitution. Id. at 368. The provision, though not a part of the
original Maryland Constitution of 1776, was adopted in 1851. Id. Its purpose, however,
was “obvious and highly commendable”:
It was intended . . . to deal with the practice of engrafting onto subjects of
great public importance “foreign and often pernicious matters” of local or
selfish purposes, thereby inducing legislators to vote for such provisions
“which, if they were offered as independent subjects, would never have
received their support,” in order not to endanger the main objective.
Id. (quoting Davis v. State, 7 Md. 151, 160 (1854)). Indeed, the Court of Appeals has
observed that
foreign matter has often been stealthily incorporated into a law, during the
haste and confusion always incident upon the close of the sessions of all
legislative bodies, and it has not unfrequently happened, that in this way the
statute books have shown the existence of enactments, that few of the
members of the legislature knew any thing of before. To remedy such and
similar evils, was this provision inserted into the constitution, and we think
wisely inserted.
Id. (quoting Davis, 7 Md. at 160). Thus, one rationale for the one subject provision is to
prevent members of the legislature from either selfishly or surreptitiously inserting
unnecessary provisions which, standing alone, would likely not receive sufficient support
to pass.
11
The Court of Appeals has also noted another important rationale for the one subject
rule—“protect[ing] the integrity of the governor’s veto power.” Porten Sullivan Corp. v.
State, 318 Md. 387, 400 (1990) (quoting Robert F. Williams, State Constitutional Limits
on Legislative Procedure: Legislative Compliance and Judicial Enforcement, 48 U. Pitt.
L. Rev. 797, 809 (1987)). The one subject rule prevents
a practice under which the legislature could include in a single act matters
important to the people and desired by the Governor and other matters
opposed by the Governor or harmful to the welfare of the state, with the result
that in order to obtain the constructive or desired matter the Governor had to
accept the unwanted portion. The veto power of the chief executive [would]
thereby [be] severely limited if not destroyed and one of the intended checks
on the authority of the legislature [would be] able to be negated in practice.
Id. (quoting Brown v. Firestone, 382 So.2d 654, 663-64 (Fla. 1980)).
Noting the appellate history of the one subject clause, the Delmarva Power & Light
Court stated:
Although in the past century-and-a-half there have been more than
130 cases in this Court in which legislation has been challenged under that
provision of the Constitution, until 1990, only twice had we found a violation
of the “single subject” requirement, in part because the Governor and the
General Assembly, over the years, have usually acted responsibly and in
compliance with the requirements imposed by the Constitution, and also in
part because of our general disposition “to give the section a liberal
construction, so as not to interfere with or impede legislative action.”
371 Md. at 368-69 (quoting Whiting-Turner Cont. Co. v. Coupard, 304 Md. 340, 361
(1985)). The Court explained that this deferential approach
is intended to accommodate not only a “significant range and degree of
political compromise that necessarily attends the legislative process in a
healthy, robust democracy,” but also the fact that “many of the issues facing
the General Assembly today are far more complex than those coming before
it in earlier times and that the legislation needed to address the problems
underlying those issues often must be multifaceted.”
12
Id. at 369 (quoting Md. Classified Emps. Ass’n, Inc. v. State, 346 Md. 1, 14 (1997)).
In order to determine whether HB 135 violated the one subject clause, the Court of
Appeals looked to the then somewhat recent cases which also concerned the one subject
clause: Porten Sullivan, 318 Md. 387 (1990); State v. Prince Georgians, 329 Md. 68(1993); Md. Classified Emps. Ass’n, Inc., 346 Md. 1 (1997); and Migdal v. State, 358 Md.
308 (2000).
In Porten Sullivan, the legislation in question began as a House measure “designed
to extend the life of a Prince George’s County energy tax . . . [and to similarly extend the
life] for a special transfer tax in Prince George’s County.” 318 Md. at 389. While in the
Senate, however, the legislation was amended to include “extensive ethical regulations
pertaining to the Prince George’s County Council.” Id. These ethical regulations required
County Council members to publicly disclose receipt of “money, goods, or services from
an applicant,” and precluded them from voting or participating in that applicant’s
application. Id. at 390-91. When the bill was challenged for violating the one subject
requirement, the State argued that the “subject here is the management of public affairs in
Prince George’s County.” Id. at 396. The Court of Appeals summarily rejected that
argument and determined that the bill violated the one subject requirement, stating that
“[t]he ‘ethics’ provisions are unrelated to raising revenue for county government
operations.” Id. at 404. Although the Porten Sullivan Court acknowledged “the difficulty
of defining with precision when a measure contains ‘distinct and incongruous subjects,’”
it recognized that a statute’s constitutionality may be upheld if the act’s subjects are
13
“germane” to one another, meaning that they have a “connection and interdependence.”
Id. at 406-07. Nevertheless, the Court found that the ethics and tax provisions constituted
“two distinct and incongruous subjects,” rendering the act unconstitutional. Id. at 409.
Following the Court of Appeals’s decision in Porten Sullivan, the General
Assembly again unsuccessfully attempted to attach the Prince George’s County Council
ethics provisions to a clearly unrelated bill. In Prince Georgians, the House introduced
House Bill 937, which was meant to address “certain planning and zoning matters in
Montgomery County.” 329 Md. at 71. After passing in the House, the Senate “amended
H.B. 937 to include the proposed ethics and election standards contained in” the bill that
failed in Porten Sullivan. Prince Georgians, 329 Md. at 71. Observing that Porten
Sullivan “is dispositive,” the Court of Appeals had no trouble concluding that the bill
violated the one subject requirement because “the Montgomery County planning and
zoning provisions and the Prince George’s County ethics and election standards” are
“distinct and incongruous.” Id. at 75.
Unlike Porten Sullivan and Prince Georgians, the Court of Appeals held in Md.
Classified Emps. Ass’n that the law in question complied with the one subject requirement.
There, the General Assembly sought to enact legislation in order to address growing
demands for “welfare reform.” Md. Classified Emps. Ass’n, 346 Md. at 3-4. To do so, the
Senate proposed SB 754, a bill which would establish a pilot program of “welfare reform”
in Baltimore City, Anne Arundel County, and Prince George’s County. Id. at 5. Pursuant
to this pilot program, the Department of Human Resources would require recipients of Aid
to Families with Dependent Children (“AFDC”) to sign agreements “imposing certain
14
mutual obligations” such as cooperating with child support enforcement and participating
in job search and life skills activities. Id. at 5-6. SB 754 underwent several amendments,
both with the Senate Finance Committee, as well as on the Senate floor. Id. at 7. One
notable amendment, not tied to the pilot program, was a provision which required the
Department of Human Resources to notify the Motor Vehicle Administration “of persons
who were obligated to pay child support to AFDC recipients and who were more than 60
days in arrears in their child support” so that, following an opportunity for a hearing, that
person’s driver’s license could be suspended. Id.Whereas SB 754 sought to achieve welfare reform, the House introduced HB 1177,
a bill that “created a child support enforcement ‘privatization’ pilot program” that required
the Department of Human Resources to completely privatize child support enforcement in
Baltimore City and two other counties. Id. HB 1177 was met with substantial opposition,
in part because of the dramatic impact it would have on State employees affected by the
privatization aspect of the bill. Id. at 9. Notably, one amendment to HB 1177 included a
provision that “followed precisely the floor amendment made to Senate Bill 754” requiring
the suspension of the driver’s license of a person in default of child support obligations to
an AFDC recipient. Id. With its last amendment, HB 1177 “dealt with more than just a
pilot program of ‘privatizing’ child support enforcement.” Id.Although HB 1177 was ultimately defeated in the Senate, its provisions regarding
the privatization of child support enforcement and the suspension of drivers’ licenses
survived when they were engrafted onto SB 754. Id. at 11. On the evening of the last day
of the legislative session, the House approved the Senate amendments, adopted additional
15
floor amendments, and passed the bill by a 120-19 vote. Id. at 12. The Senate then
concurred in the House amendments and passed SB 754 by a 46-1 vote. Id.The Court of Appeals concluded that the law did not violate the one subject
requirement of the Maryland Constitution. After noting the deferential approach to one
subject challenges, the Court stated that
Connection and interdependence can be on either a horizontal or vertical
plane. Two matters can be regarded as a single subject . . . either because of
a direct connection between them, horizontally, or because they each have a
direct connection to a broader common subject to which the Act relates.
Id. at 15-16 (citing Panitz v. Comptroller, 247 Md. 501, 511-12 (1967)). The Court
explained, “If several sections of the law refer to and are germane to the same subject-
matter, which is described in its title, it is considered as embracing but a single subject, and
as satisfying the requirements of the Constitution in this respect.” Id. at 16 (quoting
Baltimore v. Reitz, 50 Md. 574, 579 (1879)).
The Court first examined whether the creation of a privatized pilot program for child
support collection was sufficiently connected to the provision calling for the suspension of
drivers’ licenses. Id. The Court concluded that these two provisions did not violate the
one subject requirement, as the clear objective of the bill “was to increase child support
collections,” and both provisions sought to accomplish that goal. Id. at 17.
The Court proceeded to examine whether that objective—increased child support
collections—had “a sufficient nexus with the balance of Senate Bill 754 to constitute part
of the ‘single subject’ of ‘welfare reform.’” Id. The Court readily concluded that there
existed “a sufficient nexus” to satisfy the one subject requirement. Id. Specifically, the
16
Court stated that “The unmistakable objective . . . was to break the cycle of dependency on
Government assistance.” Id. Additionally, the Court noted that “The nexus between child
support enforcement and weaning people off of AFDC has been well-established for many
years.” Id. at 18. The Court concluded that there was no Article III, § 29 violation as the
legislative history
demonstrate[d] not just a close connection, but a true interdependence,
between effective child support enforcement and the goal of significantly
reducing the number of people relying on AFDC. It is therefore clear beyond
cavil that Senate Bill 754 did embrace but a single subject, of which the pilot
program of “privatizing” child support enforcement in Baltimore City and
Queen Anne’s County was a legitimate part.
Id. at 20-21.
The final case contemplated by the Delmarva Power & Light Court was Migdal. In
Migdal, a law was passed that did two things: first, in an effort to protect directors from
shareholders’ derivative suits, it stated that investment company directors are not
“interested persons” for purposes of the Federal Investment Company Act of 1940; second,
the law required any entity seeking to establish a resident agent to first obtain the resident
agent’s written consent. 358 Md. 310-11. Notably, the provision concerning immunity for
investment company directors originated as its own separate bill: House Bill 356. Id. at
311. HB 356 passed by a vote of 83 to 36 in the House, but died in the Senate when the
Senate Judicial Proceedings Committee voted 8 to 3 against the bill. Id. When HB 356
died in the Senate, several mutual fund firms (which had requested the bill in the first place)
threatened to leave Maryland and reincorporate in Delaware. Id.
The day after the mutual fund firms made their intentions known, the House
17
engrafted the provisions contained in its failed HB 356 onto Senate Bill 468, a bill which
exclusively concerned resident agents, and which had passed in the Senate by a vote of 44
to 0. Id. The amended version of SB 468 passed in the Senate by a vote of 26 to 20, but
notably, “[t]he original sponsor of Senate Bill 468 spoke and voted against the Bill on the
Senate Floor.” Id. at 312. On appeal, the Court of Appeals readily concluded that SB 468
violated the one subject requirement as there was no connection between the investment
directors’ immunity from liability and the requirement to obtain written consent from
resident agents. Id. at 322-23.
With this legal landscape in mind, the Delmarva Power & Light Court had no
difficulty concluding that the law in question there violated the one subject clause. Id. The
Court held that “[t]here is no connection whatever” between the provision creating a fund
to sustain PSC and OPC operations and the provision that retroactively excused the PSC
from following the mandates of the Administrative Procedure Act. Id. at 375. Specifically,
the Court noted that there was “clearly no direct, horizontal connection or interdependence
between them.” Id. at 375-76. The Court further rejected the argument that the two
subjects were vertically “germane” to the “efficient operation” or “the effective funding”
of the PSC and OPC, noting that “there is nothing whatever in this record to suggest that
the Legislature viewed those provisions as having that connection, and, even more
important, nowhere is that broader subject reflected in the title to the Act.” Id. at 376.
In addition to the fact that the two provisions were clearly unrelated, the Delmarva
Power & Light Court also noted the unusual manner in which the bill was enacted. Id. at
376. HB 135 passed in the late-night hours on the last night of the legislative session, and
18
“When asked to approve the Conference Committee Report, the members [of both
Chambers] were told only that the bill related to the non-lapsing fund and, as to that subject,
had been conformed to the Senate version.” Id. at 377-77. “Nothing was said,” however,
about the fact that the bill would also contain a new provision specifically targeting and
undermining a recently published Court of Appeals decision concerning PSC regulations
complying with the Administrative Procedure Act. Id. at 377. Rather, that component was
“stealthily incorporated into” the bill. Id. (quoting Davis, 7 Md. at 160). Thus, the content
of the bill itself, coupled with the surreptitious manner in which it was enacted, persuaded
the Court that HB 135 violated the one subject requirement of Article III, § 29 of the
Maryland Constitution. Id
Returning to the instant case, the Licensees argue that Chapter 389, as enacted,
effectively does two separate things in violation of Art. III, § 29 of the Maryland
Constitution. First, it allows for the possible creation of more Class B-D-7 liquor licenses
in a certain area of the 45th legislative district through an exchange program. Second, it
restricts the hours of operation for certain liquor licenses within a separate area of the 45th
legislative district.
Applying the accepted deferential approach to one subject challenges, which seeks
“not to interfere with or impede legislative action,” id. at 368-69, we conclude that these
two provisions share the requisite “connection and interdependence” to survive a one
subject challenge, Porten Sullivan, 318 Md. at 407. Specifically, both provisions regulate
the sale and distribution of alcohol in the 45th legislative district. In this respect, both
provisions, although they accomplish two separate things, clearly “refer to and are germane
19
to the same subject matter”—the overall regulation of alcohol in Baltimore City. Migdal,
358 Md. at 317. Indeed, such a construction of Chapter 389 is consistent with our
jurisprudence that
the General Assembly has chosen to closely control by statute even the more
detailed aspects of the alcoholic beverages industry. This close regulation is
perhaps partly due to the fact that, unlike other regulated areas, there is not a
single agency that administers the alcoholic beverages law, but rather
numerous local boards that are charged with its enforcement.
Bd. of Liquor License Comm’rs for Balt. City v. Hollywood Prods., Inc., 344 Md. 2, 13
(1996). By enacting Chapter 389, the General Assembly acted within its recognized
authority to “closely control” the regulation of alcohol in the 45th legislative district. Id.In their brief, the Licensees argue that Chapter 389 is as offensive to the one subject
clause as the bill at issue in Migdal. As noted above, Migdal involved a bill that not only
required a resident agent’s written consent prior to appointment, but also excused directors
of certain investment companies from liability. 358 Md. at 310-11. There, the Court of
Appeals held that requiring the written consent of resident agents was not “germane” to
investment director liability. Id. at 322. We fail to see how Migdal bolsters the Licensees’
one subject argument.
Instead, although it is difficult to compare and contrast caselaw in this arena, Md.
Classified Emps. Ass’n supports our view that Chapter 389 does not violate the one subject
provision. There, the Court found that two provisions—one privatizing child support
enforcement, and the other developing a pilot program for welfare reform that imposed
affirmative obligations on recipients—served the ultimate objective of reducing
dependence on government assistance. 346 Md. at 20-21. The two provisions at issue here
20
allowing for an exchange of Class B licenses and a restriction of hours for Class B-D-7
licenses within the 45th legislative district appear to be even more “related” than the
provisions that withstood scrutiny in Md. Classified Emps. Ass’n. Accordingly, we
conclude that Chapter 389 embraces but one subject: the regulation of liquor licenses
within Baltimore City’s 45th legislative district.
The way Chapter 389 was enacted further bolsters our conclusion that there is no
one subject violation here. Chapter 389 was the product of two separate bills: SB 571 and
HB 954. Although SB 571 stalled in the House, the legislative history materials reveal
that, not only did the bill face no opposition at the hearing before the Senate’s Education,
Health, and Environmental Affairs Committee, but the Baltimore City State Senate
Delegation unanimously supported it, and it passed unanimously in the Senate. Similarly,
HB 954, although it did not initially contain language restricting hours for certain liquor
licenses, also passed unanimously in both the House and the Senate both before and after
Senator McCray’s floor amendment.6 Whereas in Migdal and Delmarva Power & Light
members of the General Assembly acted surreptitiously to pass legislation, here, there is
no evidence to suggest that the General Assembly acted improperly in order to enact
Chapter 389. Delmarva Power & Light, 371 Md. at 377. We therefore conclude that
6
We note that HB 954 faced some opposition at the hearing before the House
Economic Matters Committee. Specifically, the Mount Vernon Belvedere Association
opposed HB 954. Nevertheless, as noted above, not a single Senator or Delegate ever voted
in opposition to the passage of HB 954 at any point in time in its entire legislative history—
including after Senator McCray’s floor amendment adding the language from SB 571.
21
Chapter 389, as enacted, does not violate the one subject requirement of Article III, § 29
of the Maryland Constitution.
II. THE EQUAL PROTECTION CLAIM
We next turn to the second issue presented: whether the Licensees produced
sufficient evidence to support their claim that Chapter 389 violates equal protection as
guaranteed by the Fourteenth Amendment to the United States Constitution and Article 24
of the Maryland State Constitution.
As noted above, “Under settled Maryland law, appellate review of administrative
decisions is limited to those issues and concerns raised before the administrative agency.”
Cap. Com. Props., Inc., 158 Md. App. at 96. This principle is important because our review
of the record shows that the only evidence the Licensees provided in support of their equal
protection claim were prior versions of the relevant law, and Census data showing the
demographic makeup of Baltimore City. The Licensees also asked the Board to take
“official notice” of the legislative history of Chapter 389. In all four cases, the Board
declined to rule on the Licensees’ equal protection argument, finding that the Licensees
failed to provide sufficient evidence to support their claims. Thus, although the Licensees
and the Board expended significant energy in their appellate briefs arguing whether
Chapter 389 substantively violates equal protection, under the well-settled standard of
review in administrative appeals, we will focus our inquiry on the Board’s determination
that the Licensees failed to produce sufficient evidence to support their argument that
Chapter 389 cannot withstand constitutional “strict scrutiny” review. We agree with the
Board that the Licensees failed to meet their threshold burden.
22
In order to explain why the Licensees failed to produce sufficient evidence, it
behooves us to first establish the legal landscape for challenging a law pursuant to the
Equal Protection Clause. We initially note that Article 24 of the Maryland Declaration of
Rights does not specifically mention “equal protection.” Instead, it provides “That no man
ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or
outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property,
but by the judgment of his peers, or by the Law of the land.” Md. Const. Decl. of Rts. Art.
24.
Although the Maryland Constitution contains no express equal
protection clause, it is settled that the Due Process Clause of the Maryland
Constitution, contained in Article 24 of the Declaration of Rights, embodies
the concept of equal protection of the laws to the same extent as the Equal
Protection Clause of the Fourteenth Amendment.
Murphy v. Edmonds, 325 Md. 342, 353-43 (1992) (citing Hargrove v. Bd. of Trs., 310 Md.
406, 416 (1987)). Thus, we look to the Fourteenth Amendment to the United States
Constitution, which provides, in relevant part, that “No State shall . . . deny to any person
within its jurisdiction the equal protection of the laws.”
While the Equal Protection Clause of the Fourteenth Amendment and
the equal protection guarantee embodied in Article 24 of the Maryland
Declaration of Rights are obviously independent and capable of divergent
application, we have consistently taken the position that the Maryland equal
protection principle applies “in like manner and to the same extent as” the
Equal Protection Clause of the Fourteenth Amendment.
Id. at 354 (some internal quotation marks omitted) (quoting Attorney General of Md. v.
Waldron, 289 Md. 683, 704-05 (1981)). Accordingly, when analyzing an equal protection
claim, we may construe United States Supreme Court opinions as “practically direct
23
authorities” concerning Article 24 of the Maryland Declaration of Rights. Id. (quoting
Waldron, 289 Md. at 705).
The Court of Appeals has explained that there are four distinct lenses for challenging
a law pursuant to the Equal Protection Clause: rational basis, heightened rational basis,
intermediate scrutiny, and strict scrutiny. Pizza di Joey, LLC v. Mayor and City Council
of Balt., 470 Md. 308, 346-48 (2020). Consistently throughout these proceedings, the
Licensees have argued that “strict scrutiny” is the only appropriate lens for their equal
protection claim.7 The “strict scrutiny” lens of review is applicable “[w]hen a statute
creates a distinction based upon ‘clearly suspect’ criteria (such as race, gender, religion, or
national origin), or when it infringes on a “fundamental” right[.]” Id. at 346 (citing Powell
v. Md. Dep’t of Health, 455 Md. 520, 548 (2017)). Appellate courts “will invalidate a
statute that is subject to strict scrutiny unless it ‘is necessary to promote a compelling
governmental interest.’” Id. (quoting Conaway v. Deane, 401 Md. 219, 272-73 (2007)).
Where the strict scrutiny lens is appropriately applied, challenged laws “rarely survive the
legal glare.” Id. at 346-47 (quoting Conaway, 401 Md. at 273).8
7
Our review of the record unequivocally shows that at no point did the Licensees
request rational basis, heightened rational basis, or intermediate scrutiny review.
8
Under the rational basis test, the challenged statute is presumed constitutional, and
will be upheld as such “unless the varying treatment of different groups or persons is so
unrelated to the achievement of any combination of legitimate purposes that [we] can only
conclude that the [State’s] actions were irrational.” Pizza di Joey, 470 Md. at 347 (quoting
Murphy, 325 Md. at 355). Heightened rational basis is appropriate when “an economic
regulation . . . prohibits an individual from practicing his or her chosen trade” or when the
law “on its face, discriminates based on a factor that is unrelated to the stated purpose of
the regulation[.]” Id. at 348 (citing Waldron, 289 Md. at 728). Finally, intermediate
24
The Licensees have consistently argued before the Board, the circuit court, and this
Court, that strict scrutiny is the only appropriate lens to review Chapter 389 because, in
their words, “in the instant case, race – a suspect class – is implicated.” The Licensees
concede that Chapter 389 is facially neutral—the law itself does not specifically mention
or target a suspect class. Nevertheless, they contend that, because the 45th legislative
district is an almost exclusively African American community, restricting the operating
hours of liquor license establishments in an area within that district unfairly targets a
suspect class and warrants strict scrutiny review.
To support their claim before the Board that Chapter 389 created a distinction based
upon race, the Licensees cited to United States Census Bureau data which showed that the
neighborhoods affected by the restriction on hours of operation provision in Chapter 389
are all approximately 90% African American, but that contiguous nearby neighborhoods
unaffected by Chapter 389 are closer to only 5% African American.
In their memorandum to the Board, the Licensees stated
A committee hearing on Senate Bill 571, a video of which is on the General
[A]ssembly website, reveals that the driving force behind this legislation was
the Baltimore City Police Department. In a classic example of racial
profiling, the Police Department is very comfortable with the argument that
a super majority black neighborhood happens to be a high crime area.
Therefore, it is safe to say that black people are more likely to cause crime.
As a result, black people in these neighborhoods should not have the freedom
and discretion to socialize together after 10 p.m. since they are more likely
scrutiny is appropriate “when a statute makes a distinction based on a ‘quasi-suspect’
classification, such as illegitimacy[.]” Id. at 347 (citing Conaway, 401 Md. at 275-76). To
survive intermediate scrutiny, the law must “serve important governmental objectives and
must be substantially related to the achievement of those objectives.” Id. (quoting
Conaway, 401 Md. at 276).
25
than white people to cause crime, especially when consuming alcohol since
black people do not have the intelligence and maturity to drink responsibly.
Despite this strongly-worded claim that the law was enacted for a racially
discriminatory purpose, the only supporting evidence the Licensees relied upon was the
legislative history materials related to Chapter 389, and United States Census data
concerning the racial makeup of different community regions in Baltimore City. As noted
above, the Board rejected the Licensees’ equal protection argument, finding that the
Licensees failed to present sufficient evidence to support their claim that Chapter 389 was
unconstitutional.
Under settled Supreme Court precedent, “A facially neutral law . . . warrants strict
scrutiny only if it can be proved that the law was ‘motivated by a racial purpose or object,
or if it is ‘unexplainable on grounds other than race[.]’” Hunt v. Cromartie, 526 U.S. 541,
546 (1999) (internal citations omitted) (first quoting Miller v. Johnson, 515 U.S. 900, 913
(1995), then quoting Shaw v. Reno, 509 U.S. 630, 644 (1993)). Moreover, evidence of a
racially disproportionate impact, standing alone, is insufficient to prove a violation of the
Equal Protection Clause. Washington v. Davis, 426 U.S. 229, 242 (1976) (“[W]e have not
held that a law, neutral on its face and serving ends otherwise within the power of
government to pursue, is invalid under the Equal Protection Clause simply because it may
affect a greater proportion of one race than of another.”); cf. Jefferson v. Hackney, 406 U.S.
535, 548 (1972) (implicitly recognizing that a “naked statistical argument” is insufficient
to prevail on an equal protection claim). Rather, “Proof of racially discriminatory intent or
purpose is required to show a violation of the Equal Protection Clause.” Village of
26
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). A challenger
must make a prima facie showing of discriminatory intent before “the burden of proof shifts
to the State to rebut the presumption of unconstitutional action by showing that permissible
racially neutral selection criteria and procedures have produced the monochromatic result.”
Washington, 426 U.S. at 241 (quoting Alexander v. Louisiana, 405 U.S. 625, 632 (1972)).
In Washington, the Supreme Court was tasked with reviewing whether facially
neutral government action—“a qualifying test administered to applicants for positions as
police officers in the District of Columbia Metropolitan Police Department”—violated the
Equal Protection Clause. Id. at 232. There, in order to be accepted by the police
department, an applicant “was required to satisfy certain physical and character standards,
to be a high school graduate or its equivalent, and to receive a grade of at least 40 out of
80 on Test 21, which [was] an examination that [was] used generally throughout the federal
service.” Id. at 234 (internal quotation marks omitted). Test 21 “was developed by the
Civil Service Commission, not the Police Department, and . . . was designed to test verbal
ability, vocabulary, reading and comprehension.” Id. at 234-35 (internal quotation marks
omitted).
Test 21 was challenged on equal protection grounds, with the challengers arguing
that “Test 21 bore no relationship to job performance and has a highly discriminatory
impact in screening out black candidates.” Id. at 235 (internal quotation marks omitted).
The district court noted that the evidence presented by the challengers “warranted three
conclusions: ‘(a) The number of black police officers, while substantial, is not
proportionate to the population mix of the city. (b) A higher percentage of blacks fail the
27
Test than whites. (c) The Test has not been validated to establish its reliability for
measuring subsequent job performance.’” Id. at 235. The district court nevertheless
rejected the constitutional challenge, finding that “[t]he proof is wholly lacking that a
police officer qualifies on the color of his skin rather than ability.” Id. at 236.
The Court of Appeals for the District of Columbia Circuit, however, reversed the
district court, finding that a “lack of discriminatory intent in designing and administering
Test 21 was irrelevant; the critical fact was . . . that a far greater proportion of blacks . . .
failed the test than did whites.” Id. at 237. That court held that the “disproportionate
impact, standing alone without regard to whether it indicated a discriminatory purpose, was
. . . sufficient to establish a constitutional violation[.]” Id.
On certiorari review, the Supreme Court rejected the rationale of the Court of
Appeals, stating, “our cases have not embraced the proposition that a law or other official
act, without regard to whether it reflects a racially discriminatory purpose, is
unconstitutional solely because it has a racially disproportionate impact.” Id. 239.
Regarding laws which appear to be facially neutral, the Supreme Court noted,
This is not to say that the necessary discriminatory racial purpose must
be express or appear on the face of the statute, or that a law’s disproportionate
impact is irrelevant in cases involving Constitution-based claims of racial
discrimination. A statute, otherwise neutral on its face, must not be applied
so as invidiously to discriminate on the basis of race.
Id. at 241 (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)). For purposes of proving
racially discriminatory intent, the Supreme Court stated that “an invidious discriminatory
purpose may often be inferred from the totality of the relevant facts, including the fact, if
it is true, that the law bears more heavily on one race than another.” Id. at 242.
28
The Supreme Court made clear, however, that a disproportionate impact, standing
alone, will not suffice to establish an equal protection violation:
Nevertheless, we have not held that a law, neutral on its face and serving
ends otherwise within the power of government to pursue, is invalid under
the Equal Protection Clause simply because it may affect a greater proportion
of one race than of another. Disproportionate impact is not irrelevant, but it
is not the sole touchstone of an invidious racial discrimination forbidden by
the Constitution. Standing alone, it does not trigger the rule, that racial
classifications are to be subjected to the strictest scrutiny and are justifiable
only by the weightiest of considerations.
Id. (emphasis added) (citation omitted) (citing McLaughlin v. Florida, 379 U.S. 184, 191
(1964)). Thus, Washington held that it is inappropriate to apply the strict scrutiny lens of
constitutional review where the only evidence of discrimination is a disparate impact, and
where there is no evidence of discriminatory purpose. Id.The following year, the Supreme Court further elucidated its holding in
Washington—that evidence of a racially discriminatory intent is necessary to obtain strict
scrutiny review for an Equal Protection Clause challenge. In Village of Arlington Heights,
a housing developer applied with the Village of Arlington Heights (the “Village”) to rezone
a 15-acre parcel from a single-family classification to a multiple-family classification. 429
U.S. at 254. The goal of the application was to introduce low and moderate-income
housing into the area, “housing that would probably be racially integrated.” Id. at 257-58.
Notably, according to Census data during that time period, “only 27 of the Village’s 64,000
residents were black.” Id. at 255. When the Village denied the application, the developer,
three African American individuals, a Mexican American individual, and a non-profit
corporation all filed suit against the Village, alleging that the denial was racially motivated
29
in violation of the Equal Protection Clause. Id. at 254, 258-59. The district court rejected
the constitutional challenge, finding that “the [Village was] not motivated by racial
discrimination or intent to discriminate against low-income groups when they denied
rezoning, but rather by a desire ‘to protect property values and the integrity of the Village’s
zoning plan.’” Id. at 259.
The Seventh Circuit Court of Appeals reversed. Id. Notably, that court accepted
the district court’s finding that the Village was “motivated by a concern for the integrity of
the zoning plan, rather than by racial discrimination.” Id. Nevertheless, the Court of
Appeals stated that “the refusal would have a disproportionate impact on blacks[,]” who,
based on family income, “constituted 40% of those Chicago area residents who were
eligible to become tenants” of the proposed development. Id. Recognizing that “such a
disparity in racial impact alone does not call for strict scrutiny,” the Court of Appeals
proceeded to note that “the denial of rezoning must be examined in light of its ‘historical
context and ultimate effect.’” Id. at 259-60. Noting “a high degree of residential
segregation” in the region, the Court of Appeals concluded that “Arlington Heights could
not simply ignore this problem. Indeed, it found that the Village had been ‘exploiting’ the
situation by allowing itself to become a nearly all white community.” Id. at 260.
Accordingly, the Court of Appeals “ruled that the denial of the [application] had racially
discriminatory effects and could be tolerated only if it served compelling interests.” Id.30
Finding that the desire to protect property values failed to meet this strict scrutiny standard,9
the court determined that the denial constituted a violation of the Equal Protection Clause.
Id.The Supreme Court reversed the Court of Appeals. Relying on Washington, the
Court noted that “official action will not be held unconstitutional solely because it results
in a racially disproportionate impact. . . . Proof of racially discriminatory intent or purpose
is required to show a violation of the Equal Protection Clause.” Id. at 264-65 (emphasis
added). The Court stressed the importance of the evidence presented in such a
constitutional claim, stating,
Determining whether invidious discriminatory purpose was a
motivating factor demands a sensitive inquiry into such circumstantial and
direct evidence of intent as may be available. The impact of the official
action whether it “bears more heavily on one race than another,”
[Washington, 426 U.S. at 242] may provide an important starting point.
Sometimes a clear pattern, unexplainable on grounds other than race,
emerges from the effect of the state action even when the governing
legislation appears neutral on its face. . . . The evidentiary inquiry is
relatively easy. But such cases are rare. Absent a pattern as stark as that in
[Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that statute violated
the Fifteenth Amendment where it moved voting boundary to the detriment
of all but four or five African American voters, but did not remove a single
white voter from the boundary)] or [Yick Wo, 118 U.S. 356 (finding Equal
Protection violation where local board denied permits to nearly all Chinese
applicants, but granted nearly every application to non-Chinese applicants)],
impact alone is not determinative, and the Court must look to other evidence.
Id. at 266 (emphasis added) (internal citations and footnotes omitted).
9
As noted above, the requirement that the government action promote a
“compelling interest” only applies to the strict scrutiny lens of constitutional review. Pizza
di Joey, 470 Md. at 346 (quoting Conaway, 401 Md. at 272-73)).
31
Turning to the evidence presented, the Supreme Court noted that “there is little
about the sequence of events leading up to the decision that would spark suspicion.” Id. at
269. The evidence showed that the Village adopted its zoning policy long before the
developer applied for rezoning, and the Village also “applied the policy too consistently
for [the Court] to infer discriminatory purpose from its application in this case.” Id. at 270.
The Court noted that “[t]he statements by the Plan Commission and the Village Board
members . . . focused almost exclusively on the zoning aspects” of the rezoning petition.
Id. Accordingly, the Supreme Court concluded that “the evidence does not warrant
overturning the concurrent findings of both courts below. Respondents simply failed to
carry their burden of proving that discriminatory purpose was a motivating factor in the
Village’s decision. This conclusion ends the constitutional inquiry.” Id. at 270-71(footnote omitted).10
The takeaway from Washington and Village of Arlington Heights is clear: in the
context of facially neutral government action, challengers seeking strict scrutiny review for
their equal protection claims bear the burden of showing that discriminatory purpose was
a motivating factor in the government’s decision or other action. Village of Arlington
Heights, 429 U.S. at 270-71; Washington, 426 U.S. at 242.
10
In a footnote, the Supreme Court noted that, even had the challengers presented
sufficient evidence to show that the Village’s decision was motivated by a racially
discriminatory purpose, such a showing would not have ended the constitutional inquiry.
Village of Arlington Heights, 429 U.S. at 270 n.21. Rather, such an evidentiary showing
would have merely shifted the burden to the Village to defend its decision pursuant to strict
scrutiny review. Id.32
A case that demonstrates satisfaction of the challengers’ evidentiary burden is
Griffin v. Cnty. School Bd. of Prince Edward Cnty., 377 U.S. 218 (1964). There, in
response to the landmark decision Brown v. Bd. of Educ., 347 U.S. 483 (1954), which held
that the racial segregation of public schools violated the Equal Protection Clause, Prince
Edward County responded by enacting legislation to close any public schools that enrolled
both white and African American children. Griffin, 377 U.S. at 221. The evidence showed
that, as early as 1956 (two years after Brown), the Supervisors of Prince Edward County
resolved not to operate desegregated public schools, and accordingly, they closed all public
schools in the county while forming private groups to fund segregated private schools. Id.
at 222-23.
In holding that the enactments violated the Equal Protection Clause, the Supreme
Court noted that, “showing that different persons are treated differently is not enough,
without more, to show a denial of equal protection.” Id. at 230 (citing Kotch v. Bd. of River
Port Pilot Comm’rs, 330 U.S. 552, 556 (1947)). Nevertheless, the Supreme Court stated:
But the record in the present case could not be clearer that Prince Edward’s
public schools were closed and private schools operated in their place with
state and county assistance, for one reason, and one reason only: to ensure,
through measures taken by the county and the State, that white and [African
American] children in Prince Edward County would not, under any
circumstances, go to the same school. Whatever nonracial grounds might
support a State’s allowing a county to abandon public schools, the object
must be a constitutional one, and the grounds of race and opposition to
desegregation do not qualify as constitutional.
Id. at 231 (emphasis added). The Supreme Court held that, based on the record presented,
Prince Edward County’s legislation to close all public schools, although facially neutral,
violated the Equal Protection Clause. Id. at 232.
33
The Supreme Court reached the same conclusion—that a facially neutral law
violated the Equal Protection Clause—in Hunter v. Underwood, 471 U.S. 222 (1985).
There, Article VIII, § 182 of the Alabama Constitution provided for the disenfranchisement
of any person convicted of a crime “involving moral turpitude.” Id. at 223. This provision
was challenged on the ground that it was adopted in order to disenfranchise African
Americans in violation of the Equal Protection Clause. Id. at 224. Although § 182 was
racially neutral on its face, the challengers produced evidence that the provision had caused
racially disproportionate effects. Id. at 227.
In reviewing the constitutionality of the provision, the Supreme Court accepted that
§ 182 produced racially disproportionate effects, but noted that this alone did not resolve
whether there was an equal protection violation. Id. at 227-28 (citing Washington, 426
U.S. at 239). Instead, the Court turned to the evidence concerning the initial motivation
for enacting the provision. The Supreme Court noted the inherent difficulties in
determining whether legislators who enact legislation secretly possess racially
discriminatory intent:
Inquiries into congressional motives or purposes are a hazardous matter.
When the issue is simply the interpretation of legislation, the Court will look
to statements by legislators for guidance as to the purpose of the legislature,
because the benefit to sound decision-making in this circumstance is thought
sufficient to risk the possibility of misreading Congress’ purpose. It is
entirely a different matter when we are asked to void a statute that is, under
well-settled criteria, constitutional on its face, on the basis of what fewer than
a handful of Congressmen said about it. What motivates one legislator to
make a speech about a statute is not necessarily what motivates scores of
others to enact it, and the stakes are sufficiently high for us to eschew
guesswork.
34
Id. at 228 (quoting United States v. O’Brien, 391 U.S. 367, 383-84 (1968)). Despite these
difficulties associated with determining discriminatory intent, the Court found there was
ample evidence in the record to conclude that § 182 was enacted with a racially
discriminatory purpose, shifting the burden to the government to justify the provision.
The Supreme Court noted that, although there were no “eyewitnesses” to the
proceedings when § 182 was adopted in 1901, “testimony and opinions of historians were
offered and received without objection. These showed that the Alabama Constitutional
Convention of 1901 was part of a movement that swept the post-Reconstructionist South
to disenfranchise blacks.” Id. at 228-29 (citing S. Hackney, Populism to Progressivism in
Alabama 147 (1969)). The evidence showed that
The delegates to the all-white convention were not secretive about their
purpose. John B. Knox, president of the convention, stated in his opening
address:
“And what is it that we want to do? Why it is within the limits
imposed by the Federal Constitution, to establish white
supremacy in this State.”
Id. at 229. The Court concluded that the evidence “demonstrated conclusively” that the
legislators who enacted § 182 did so for a racially discriminatory purpose. Accordingly,
there was sufficient evidence in the record to show discriminatory intent, and that the
provision violated the Equal Protection Clause. Id. at 229, 233.
We return to the instant case. The Licensees concede that Chapter 389 is not racially
discriminatory on its face. Thus, under settled Supreme Court precedent, the Licensees
had the burden of showing that the General Assembly’s enactment of Chapter 389 was at
35
least partially motivated by discriminatory purpose in order to obtain strict scrutiny review.
Hunt, 526 U.S. at 546.
The Licensees failed to meet their burden. Their reliance on the legislative history
materials concerning Chapter 389, as well as the Census data showing the racial
distribution of different neighborhoods in Baltimore City simply show, at most, a racially
disparate impact. That evidence does not, however, demonstrate the discriminatory intent
or purpose necessary to support strict scrutiny review for equal protection purposes.
Village of Arlington Heights, 429 U.S. at 270-71. In fact, our thorough review of the record
in this case, including all of the legislative history materials available from the General
Assembly, reveals that the sponsors and supporters of Chapter 389 were solely focused on
curtailing crime in the region—not on discriminating against a suspect class.
At the hearing before the Senate Education, Health and Environmental Affairs
Committee, Senator McCray explained that he was sponsoring SB 571 in an effort to curb
“high violence” crimes in the 45th legislative district. He testified that the idea to introduce
the bill came from conversations with Major Lloyd Wells of the Baltimore City Police
Department as well as other local leaders who wanted to address the violent crime plaguing
their community. Michelle Wirzberger, Director of Government Affairs for the Baltimore
City Police Department, referenced written materials concerning crime statistics and
voiced the Department’s support for the bill. These written materials purport to show a
connection between violent crime and geographic proximity to liquor establishments
within the bounded area of the 45th legislative district. Major Wells also testified in
support of the bill and explained that the goal of reducing the operating hours was to curb
36
violent crime. Additionally, Jack Lopez, a resident of the impacted area and a board
member of the Oliver Community Association, explained that the community was
frustrated with the violence and crime associated with local liquor establishments, and that
a reduction in hours would limit the exposure of the community to such crimes. Finally,
Harold Bennett of the Broadway East Community Association explained that he supported
the bill because he believed that liquor establishments were abusing their licenses to
encourage off-site consumption when the licenses themselves were intended for on-site
consumption.
The record evidence unequivocally shows that the sole purpose in enacting Chapter
389’s restriction on hours was to curtail crime within the bounded area of the 45th
legislative district. In short, we see no evidence of a discriminatory intent.11 Indeed, when
asked at oral argument what evidence existed in the record to show discriminatory intent,
the Licensees’ counsel candidly conceded, “I don’t have any[.]” In the parlance of Village
of Arlington Heights, the Licensees’ failure to satisfy their burden that discriminatory
purpose was a motivating factor in the passage of Chapter 389 “ends the constitutional
inquiry.” 429 U.S. at 271.
11
Moreover, we note that Chapter 389’s operating hours restriction only targets a
defined portion of the predominantly African American 45th legislative district—it
otherwise leaves untouched the remaining portion of that district. If the legislation were
truly designed to target African Americans, one would expect Chapter 389 to restrict the
operating hours for liquor licenses in all of the predominantly African American
neighborhoods located in the 45th legislative district. Chapter 389, however, does no such
thing.
37
In conclusion, because the Licensees failed to carry their burden of proving that
discriminatory purpose was a motivating factor in the enactment of Chapter 389, their equal
protection challenge to the law must fail.12 Accordingly, we affirm the Board’s decision
in all four cases.13
JUDGMENTS IN CASE NOS. 24-C-20-
003794 AND 24-C-20-003795 AFFIRMED;
JUDGMENTS IN CASE NOS. 24-C-20-
004827 AND 24-C-20-004828 REVERSED
WITH INSTRUCTIONS TO THE CIRCUIT
COURT TO AFFIRM THE BOARD’S
DECISION. COSTS TO BE PAID BY
LICENSEES.
12
We note that in the two cases where the circuit court reversed the Board, the trial
judge found that Chapter 389 was subject to strict scrutiny, but that the Board “erroneously
applied the rational basis test.” We see nothing in the record to indicate that the Board
applied any lens of constitutional review whatsoever. Rather, as explained above, the
Board correctly declined to rule on the Licensees’ equal protection claim because they
failed to present sufficient evidence. Nothing in this opinion should be construed as holding
that any particular lens of constitutional review would be appropriate here. We reiterate
that we merely hold that the Licensees failed to produce sufficient evidence to support their
claim that Chapter 389 cannot survive strict scrutiny under the Equal Protection Clause.
13
We note that the Licensees do not purport to be members of the suspect class
disproportionately affected by Chapter 389’s restriction. Nevertheless, the Board does not
dispute that the Licensees have standing to challenge the constitutionality of Chapter 389.
We agree that the Licensees have standing. See Craig v. Boren, 429 U.S. 190, 194 (1976)
(noting that a party incurring “a direct economic injury through the constriction of her
buyer’s market” has standing to challenge the constitutionality of a law).
38