Howard County v. Pack Shack, Inc.

JAMES R. EYLER, Judge. The principal issue addressed in this opinion is whether there is a right of appeal from a circuit court’s denial of a petition for constructive civil contempt for failure to obey an injunction by the party who filed the petition. We conclude that, while ordinarily there is no such right of appeal, there is in this case because the contempt proceeding was in the nature of a civil execution to enforce a decree intertwined with an appealable order, ie., the injunction. Factual Background Howard County, appellant, filed a petition for constructive civil contempt in the Circuit Court for Howard County to enforce an injunction previously entered against Pack Shack, Inc., appellee.

The prior injunction, effective June 2, 2000, enjoined appellee from using its leased premises as an “adult book or video store,” in violation of the Howard County zoning regulations. 1 The injunction was entered as part of a declaratory judgment proceeding in which appellee challenged the constitutionality of Howard County zoning regulations applicable to adult video and book stores. The circuit court upheld the regulations, and this Court affirmed in Pack Shack, Inc. v. Howard County, 138 Md.App. 59 , 770 A.2d 1028 (2001). In the matter currently before us, the circuit court found that there was insufficient evidence to hold appellee in contempt. On December 14,1999, in connection with the constitutional challenge, the parties entered into a stipulation pursuant to which appellee admitted that it was in violation of the applicable regulations as of the time of the trial on the constitutional issues.

In that proceeding, at the circuit court level, appellee raised various constitutional challenges, but on appeal, asserted only First Amendment and Article 41 violations. See Pack Shack, 138 Md.App. at 68-69 , 770 A.2d 1028 . ⁷²⁶ On June 9, 2000, appellant filed its petition for constructive civil contempt in the same circuit court action, alleging that appellee was in violation of the injunction, despite the fact that it had added non-adult books and viewing booths for sex education videos rather than the previously displayed adult videos. In response, appellee asserted that it was no longer operating an “adult book or video store” as defined by Howard County zoning regulation Section 103.A.4.1.a, “in that a significant or substantial portion of its stock in trade is not characterized by an emphasis on matters depicting, describing, or relating to sexual activities,” and that it was not offering for viewing on the premises “videos or similar materials characterized by an emphasis on matters depicting, describing, or relating to sexual activities.” On July 19, 2000, the circuit court held a hearing. Appellant introduced certain exhibits, one of which was the December 14, 1999 stipulation entered into in connection with the constitutional challenge.

David Calloway, a Howard County zoning inspector, testified in support of appellant’s petition. Mr. Calloway inspected appellee’s premises on January 26, February 4, and May 27, 1999, and, after the effective date of the injunction, on June 8 and July 18, 1999. Diagrams of the floor plan of the premises prepared at various points in time were admitted into evidence. Mr. Calloway testified that on January 26, 1999, the store was divided into three areas: the northern entrance area, the main area, and the individual video viewing booth area.

The northern entrance area constituted about 25% of the floor area of the store and contained both adult items and non-adult items. The main area included a counter area, behind which adult books and videos were displayed, and the main floor area, where books, videos, and novelties were displayed. Mr. Calloway testified that the main area contained only adult items. He testified that the layout and content of the store was the same at the time of the February 4 and May 27, 1999 inspections.

Mr. Calloway testified that the June 8, 2000 inspection revealed several changes. He testified that the store eon ⁷²⁷ tained the adult items that he had observed prior to the June 8, 2000 inspection, but several racks of paperback books and one rack of greeting cards had been added. In addition, the menu for the individual viewing booths indicated a selection of health and sex education films rather than a menu for adult films, which he had observed at prior inspections. Mr. Calloway testified that, at the time of the July 18, 2000 inspection, an additional rack of non-adult greeting cards had been added in the northern entrance area of the store.

On cross-examination, he testified that he had not counted the inventory in the store and did not have a specific number of adult items of inventory versus non-adult items of inventory. He further testified that it was not part of his responsibility to determine what appellee would have to do to bring itself into compliance so that it would not have a significant or substantial portion of its stock in trade in adult materials. Vincent Bonadio, Jr. testified on behalf of appellee. Mr. Bonadio testified that he supervised the store business and, in that capacity, prior to June 2, 2000, in anticipation of the effective date of the injunction, he directed the renovation of the store and changes to the store’s inventory.

He testified that 500 magazines and 800 videos of a sexually explicit nature were removed and were replaced with non-adult paperbacks. He also stated that card racks, novelties, t-shirts, lingerie, sunglasses, and false fingernails were added as merchandise for sale. He did not specify how many of the non-adult items were added as part of the changes. It was undisputed that prior to the changes made as a result of the entry of the court’s injunction, appellee sold non-adult merchandise, but the quantity was not specified.

Mr. Bonadio testified that he participated in an inventory of the store’s merchandise after the changes had been made, and that the inventory was summarized on a document introduced into evidence by appellee. The list contained adult and non-adult items. He testified that the non-adult inventory contained 30,521 items. Of that number, 13,600 were lapel-sized flag pins.

The non-adult inventory also contained 6,785 non- ⁷²⁸ adult books and 4,600 greeting cards. He testified that the adult inventory consisted of 6,390 items, which included movies, books, and sex toys. When Mr. Bonadio testified that the decision of whether or not an item went on the adult or non-adult list was made by “people at corporate,” appellant moved to strike the list on the ground that the witness lacked sufficient knowledge of its contents to warrant its admission^ The court denied the motion. On cross-examination, Mr. Bonadio acknowledged that the non-adult list included items such as latex panties and bras, edible panties, lingerie, garters, pasties, specialty condoms, and various games.

As noted previously, the circuit court refused to hold appellee in contempt, and appellant noted an appeal to this Court. Contentions of the Parties First, appellant contends that the circuit court committed an error of law because it applied a “beyond a reasonable doubt” standard to a civil contempt proceeding when it should have applied a preponderance of the evidence standard. Second, appellant contends that the court erred in implicitly finding that the applicable zoning regulations were unconstitutionally vague or otherwise in violation of the First Amendment when it had already found the provisions valid in the declaratory judgment proceeding. Third, appellant contends that the circuit court erred in applying an implied percentage requirement to the “significant or substantial” language contained in the zoning regulations.

Fourth, appellant contends that the circuit court erred in not beginning its analysis with appellee’s admitted violation of the zoning regulations and, from that starting point, determine whether there had been a significant change in the business. Finally, appellant contends that the circuit court erred in denying its motion to strike the inventory list. Appellee moved to dismiss the appeal on the ground that there is no right of appeal from the denial of a petition for contempt. ⁷²⁹ Motion to Dismiss Appeal Appellee, relying on Md.Code (1973, 1998 Repl.Vol.), Courts & Judicial Proceedings (CJ) § 12-304, contends that appellant had no right to appeal from the denial of its petition for contempt. Appellee also contends that the contempt was criminal in nature and that a reversal on appeal would subject appellee to double jeopardy.

With respect to the latter point, we disagree. The petition was clearly styled a petition for civil constructive contempt and was filed in accordance with Md. Rule 15-206. 2 The circuit court declined to find contempt and, consequently, imposed no sanction. The question of whether a particular sanction is unlawful in a civil contempt proceeding is not before us. We proceed to discuss appellee’s main point, which is that the appeal cannot proceed even if it is a civil contempt proceeding.

CJ § 12-301 provides, in pertinent part: Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. CJ § 12-302(b) provides: Section 12-301 of this subtitle does not apply to appeals in contempt cases, which are governed by §§ 12-304 and 12-402 of this title. 3 CJ § 12-304 provides: ⁷³⁰ (a) Scope of review — Any person may appeal from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him in contempt of court, including an interlocutory order, remedial in nature, adjudging any person in contempt, whether or not a party to the action. (b) Exception — This section does not apply to an adjudication of contempt for violation of an'interlocutory order for the payment of alimony.

Appellant argues that it has a general right of appeal under § 12-301 and that § 12-304 provides supplementary authority for appeals in certain situations in contempt cases. Specifically, appellant argues that the language in the first portion of § 12-304(a) (prior to “including”) refers to criminal contempt and that the second portion refers to an interlocutory order in a civil case enforcing a prehminary injunction or temporary restraining order. In this case, according to appellant, the petition for constructive civil contempt is to compel compliance with a permanent injunction and is thus governed by § 12-301. Finally, appellant points out that, to the extent that § 12-304 may be read to provide a right of appeal only to persons held in contempt, Maryland appellate courts have applied it only in cases of criminal contempt.

See Tyler v. Baltimore County, 256 Md. 64, 71 , 259 A.2d 307 (1969); Becker v. Becker, 29 Md.App. 339, 342 , 347 A.2d 911 (1975); Kemp v. Kemp, 42 Md.App. 90 , 399 A.2d 923 (1979), rev’d on other grounds, 287 Md. 165 , 411 A.2d 1028 (1980); Harford County Educ. Assoc. v. Board of Educ., 281 Md. 574, 576 , 380 A.2d 1041 (1977); Kelly v. Montebello Park Co., 141 Md. 194, 204 , 118 A. 600 (1922), superceded by statute as stated in Billman v. Maryland Deposit Ins. Fund Corp., 312 Md. 128 , 538 A.2d 1172 (1988); and Ex Parte Sturm, 152 Md. 114, 125-26 , 136 A. 312 (1927), superceded by statute as stated in Billman v. Maryland Deposit Ins. Fund Corp., 312 Md. 128 , 538 A.2d 1172 (1988).

We begin by noting that the express language of the applicable statutes point to the conclusion that there is no ⁷³¹ right of appeal by a party who unsuccessfully seeks to have another party held in contempt. Section 12-301, providing for a general right of appeal, states that it applies except as provided in § 12-302. Section 12-302(b) states that § 12-301 does not apply to appeals in contempt cases. Section 12-304 provides a right of appeal in contempt cases by any person (including non-parties) but only by the person who has been held in contempt.

It does not provide a right of appeal to a party unsuccessfully seeking to have another person held in contempt. Despite the seemingly clear language, we shall proceed to review the history behind the present statutes. At common law, what is now civil contempt probably did not exist, and the original law of contempt recognized only what is now known as criminal contempt. State v. Roll, 267 Md. 714, 727 , 298 A.2d 867 (1973).

The contempt power was directed at offensive conduct which interfered with the Crown or its official agents. Id. What is now civil contempt was originally contempt in procedure, an equitable civil procedural device used to secure obedience to court orders. Ronald L. Goldfarb, The Contempt Power 50 (1963).

Common law contempt was summary in nature, and there was no right of appeal. Tyler, 256 Md. at 69 , 259 A.2d 307 (citing New England Novelty Co. v. Sandberg, 315 Mass. 739 , 54 N.E.2d 915, 917 (1944)). The rationale was that it was necessary for the court to be able to summarily enforce its orders without question. Id.

Under current Maryland law, there is a distinction between civil contempt and criminal contempt, and the distinction is important. See Md. Rule 15-201 et seq.; Roll, 267 Md. at 728 , 298 A.2d 867 . The criminal contempt action is prosecuted to preserve the power and vindicate the dignity of courts and to punish for disobedience of the court’s orders. Roll, 267 Md. at 727 , 298 A.2d 867 ; Donner v. Calvert Distillers Corp., 196 Md. 475, 483 , 77 A.2d 305 (1950)(quoting Kelly v. Montebello Park Co., 141 Md. 194 , 118 A. 600 (1922)).

The government, the courts, and the people have an interest in such ⁷³² proceedings. Donner, 196 Md. at 483 , 77 A.2d 305 (quoting Kelly, 141 Md. 194 , 118 A. 600 ). Civil contempt, as it came to be known, is remedial and coercive in nature, and the parties chiefly in interest are those whose private remedies are being protected by the contempt proceeding. Roll, 267 Md. at 728 , 298 A.2d 867 , Donner, 196 Md. at 483 , 77 A.2d 305 (quoting Kelly, 141 Md. 194 , 118 A. 600 ).

In a civil contempt proceeding, the penalty must provide for purging. Roll, 267 Md. at 728 , 298 A.2d 867 . In a criminal contempt proceeding, the penalty is punishment for past misconduct and does not require purging. Id.

Civil proceedings are to compel obedience to an order made to enforce remedies to which a court has found a private party to be entitled. Id. Such civil contempt proceedings are in the nature of an execution to enforce the judgment of the court. Kelly, 141 Md. at 197-98 , 118 A. 600 (quoting Bessette v. W.B. Conkey Co., 194 U.S. 324 , 24 S.Ct. 665 , 48 L.Ed. 997 (1904)(quoting In re Nevitt, 117 F. 448 , 54 C.C.A. 622 (1902))).

In 1922, the Court of Appeals decided Kelly v. Montebello Park Co., supra. At that time, there were statutes in effect in Maryland providing for the right of appeal in civil and criminal cases, but none expressly referenced contempt actions. See Kelly, 141 Md. at 204-05 , 118 A. 600 . In Kelly , the plaintiffs, on November 11, 1921, filed a bill of complaint against John and Marie Kelly, seeking to enjoin them from erecting a garage on their property.

A preliminary injunction was granted that same day. On November 14, 1921, the court issued an order requiring the Kellys and Harry Collison, a non-party, to show cause why they should not be held in contempt for disobeying the injunction. The court found all three in contempt, and they appealed. With respect to appealability, the Court began by stating that at common law there was no right of appeal in contempt eases unless authorized by statute.

Id. at 196 , 118 A. 600 . The Court then engaged in a discussion of the difference between civil and criminal contempt, as noted above. Id. at 197-98 , 118 A. 600 . Following that, the Court reviewed several Supreme Court cases of questionable relevance.

We ⁷³³ note in passing that those cases did not suggest a right of appeal in the absence of a finding of contempt; the issue was simply not presented. Moreover, the courts in those cases were not presented with a situation in which there was a contempt proceeding after an appealed final judgment. The cases do stand for the proposition that, in civil contempt cases, there has been some relaxation of the rule that contempt proceedings are not reviewable on appeal in the absence of a statute expressly providing for it, particularly with respect to interlocutory orders. Following that discussion, the court referred to the Maryland cases of State v. Stone, 3 H. & McH. 115 (1792), and Williamson v. Carnan, 1 G. & J. 184 (1829).

Id. at 202 . In Stone , the general court fined the chief justice and associate justice of the Charles County court for contempt for refusing to obey a writ of certiorari, and that they prayed an appeal to the court of appeals, which the general court refused to grant. In the syllabus, that case is treated as authority for the statement: “An appeal does not lie from an order imposing a fine for contempt of court.” Kelly, 141 Md. at 202 , 118 A. 600 . In Williamson, a fine was imposed for failure to obey a preliminary injunction.

It was reviewed on appeal from the preliminary injunction. See Kelly, 141 Md. at 202-03 , 118 A. 600 . Next, the Court referred to Longley v. McGeoch, 115 Md. 182 , 80 A. 843 (1911). In Longley , the defendants were found in contempt for failing to obey a preliminary injunction.

The finding was reviewed on appeal from the entry of a preliminary injunction. See Kelly, 141 Md. at 203 , 118 A. 600 . The Court, in Kelly , concluded that the case before it was one of criminal contempt because the sanction was punitive, not remedial, and there was nothing to indicate that the parties treated it as a proceeding in equity for civil contempt. Id. at 204 , 118 A. 600 .

The Court stated that the contempt proceeding was independent of the equity case in which the injunction had been granted and was a proceeding at law for ⁷³⁴ criminal contempt. Id. The Court ended by stating that because there was no statute “expressly providing for appeals in contempt cases,” common law applied, and the order was not subject to review. Id.

As an alternative ground, the Court stated that, if it applied the statute providing for appeals in criminal cases, the same result would follow. Id. The Court explained that the statute required a bill of exceptions to be filed in order for an appeal to lie. Id. at 205 , 118 A. 600 .

Since there was no bill of exceptions, the appeal would have been dismissed on that basis. Id. We note that the Kelly Court stated that the common law rule precluded appeals from any contempt proceeding. The case before it, however, was a criminal contempt case.

It did not address the existing statutes dealing with appeals in civil cases, appeal rights in civil contempt cases, or appeal rights by non-parties held in contempt. Similarly, the. Court did not discuss appeal rights by a party unsuccessfully seeking to have another held in contempt. While not a holding with respect to civil contempt, the clear tenor of the opinion, however, was that there was no right of appeal in any contempt proceeding, absent an express statutory provision.

The Court reaffirmed Kelly in Ex Parte Sturm, supra. In Sturm, five persons were held in contempt for violating a court order prohibiting the taking of photographs at a murder trial. Photographs were taken and the court held two photographers, the managing editor and the city editor of the News, and the managing editor of the American, two newspapers in Baltimore City, in contempt. The Court of Appeals treated it as a criminal contempt and, relying on Kelly , dismissed the appeal. 152 Md. at 125-26 , 136 A. 312 .

In doing so, the Court distinguished Emergency Hosp. of Easton v. Stevens, 146 Md. 159 , 126 A. 101 (1924). In Emergency Hosp., a doctor sued a hospital claiming that the hospital had unlawfully denied him the right to perform surgery in the hospital. On February 21, 1923, the court issued an injunction against the hospital. On September 26, 1923, the doctor filed a petition requesting that the hospital be ⁷³⁵ punished for violating the injunction.

The hospital responded and also moved for dissolution of the injunction. The court, in an order, continued the injunction and reserved the question of punishment until a hearing on the motion to dissolve. The hospital appealed from that order. The hospital, on appeal, argued that the contempt was civil in nature and that it was reviewable on appeal, as distinguished from criminal contempt which was not reviewable.

The Court of Appeals stated that, because the doctor did not object to the appeal, it would proceed to address the issues, but stated that it was not modifying the rule in Kelly. 146 Md. at 165-66 , 126 A. 101 . The Court did not expressly decide whether the contempt was civil or criminal but implied that it was civil and proceeded to decide the issue because there had been no timely objection by the doctor. In Chambers v. State, 3 Md.App. 642 , 240 A.2d 644 (1968), a case in which the appellant had been found guilty of criminal contempt, we dismissed the appeal. In doing so, we described the decisions in Kelly and Sturm as follows: Under the common law there was no appeal from the judgment or order of the court in contempt proceedings regardless of whether the contempt was criminal or civil in its nature, unless specially authorized by statute.

This was the conclusion reached by the Court of Appeals of Maryland in Kelly v. Montebello Park Co., 141 Md. 194 , 118 A. 600 , 28 A.L.R. 33 (1922). There the Court in its opinion pointed out that since there is no statute in this State providing for appeals in contempt cases, the common law would apply, and “the order appealed from is not subject to review by this court.” The Court of Appeals reached a similar conclusion in the later case of Ex Parte Sturm, 152 Md. 114, 124-126 , 136 A. 312 , 51 A.L.R. 356 (1927), where the Court found that a judgment imposing a fine for criminal contempt in violating an order within the legitimate scope of the court’s authority was not appealable, since there was no statute in force expressly providing for appeals in such cases. ⁷³⁶ 3 Md.App. at 643-44 , 240 A.2d 644 . The Chambers Court also noted that, following the decision in Sturm, the legislature enacted legislation authorizing appeals in contempt proceedings. Id. at 644 , 240 A.2d 644 .

The Court dismissed the appeal based on the language of the statute then in effect. 4 Id. at 645 , 240 A.2d 644 . We shall discuss the legislation referred to in Chambers and its subsequent history, but before doing so, we shall discuss Tyler v. Baltimore County, 256 Md. 64 , 259 A.2d 307 (1969), perhaps the most important Maryland decision dealing with the issue before