State Ex Rel. Attorney General v. Burning Tree Club, Inc.

SMITH, Judge. We shall here hold that the Attorney General of Maryland could not bring a declaratory judgment action challenging the constitutionality of an enactment of the General Assembly of Maryland. I Proclaiming in its preamble that it was “the intent of the General Assembly that the assessment of lands used for country clubs shall be maintained at levels compatible with the continued use of such property for country clubs and shall not be adversely affected by neighboring uses of a ¹² more intensive and different nature” and that it is “in the general public interest that such uses should be encouraged in order to provide open spaces and provide recreational facilities and to prevent the forced conversion of such country clubs to more intensive or different uses as a result of economic pressures caused by the assessment of country club land and improvements at a rate or level incompatible with the practical use of such property for country clubs,” the General Assembly, by Ch. 399 of the Acts of 1965, enacted a tax preference statute for country clubs. This provision is codified as Maryland Code (1957, 1980 Repl.

Vol.) Art. 81, § 19(e). The statute authorizes the State Department of Assessments and Taxation “to make uniform agreements pursuant to th[at] subsection relative to the assessment and taxation of lands actively devoted to use as a country club as defined [t]herein.” 1 Pursuant to such an agreement, but for an exception not pertinent to this case, “land which is actively devoted to use as a country club ... shall be assessed on the basis of such use for the period of time provided for in the agreement or any extension thereof and shall not be assessed as if subdivided or used for any other purpose.” The period of time which such agreement may cover “shall be at the option of the country club but shall be not less than ten (10) consecutive years and may be extended from time to time.” In Ch. 870 of the Acts of 1974, the General Assembly amended § 19(e)(4) by inserting a provision to the effect that, in order to qualify for the exemption, a club “may not practice or allow to be practiced any form of discrimination ¹³ in granting membership or guest privileges based upon the race, color, creed, sex, or national origin of any person or persons.” The amendment further provided that the Office of the Attorney General should make the determination as to whether any club practices discrimination after affording a hearing to the club. Inserted in the statute in the process of its trip through the General Assembly was language which states that such provisions should not apply “to any club whose facilities are operated with the primary purpose, as determined by the Attorney General, to serve or benefit members of a particular sex, nor to the clubs which exclude certain sexes only on certain days and at certain times.” In addition, the amendment to § 19(e)(4) provided that if the Attorney General determines that a pattern of discrimination is evident in any club, he shall negotiate a consent agreement with that club to cease such discrimination. If the club breaches or violates the consent agreement or refuses to enter a consent agreement, then the Attorney General shall issue a cease and desist order to that club.

If the club breaches or violates the terms of the cease and desist order, the tax exemption shall be withdrawn until the Attorney General determines that the club is in compliance with the subsection. Burning Tree Club, Inc., was founded in 1922 as a private, all-male golf club. It operates an eighteen hole golf course located on approximately 225 acres of land in Montgomery County. After § 19(e) was enacted in 1965, Burning Tree entered into a ten year agreement with the State Department of Assessments and Taxation in order to receive the tax preference.

The agreement was extended for another ten year period in 1975. A new agreement covering a fifty year period was executed in 1980, following a determination by the Attorney General in 1978 that Burning Tree was operated to serve or benefit members of a particular sex and hence was exempt from the prohibition of sex discrimination contained in § 19(e)(4). The Attorney General instituted a declaratory judgment action in the Circuit Court for Montgomery County in the ¹⁴ name of the State and on his own behalf as Attorney General. He sought to have declared unconstitutional that portion of the statute which provides the exemption for country clubs operated with the purpose of serving or benefiting members of a particular sex.

He contended that this language is severable from the remaining portion of § 19(e)(4). Burning Tree filed a demurrer asserting that there is no actual controversy between the parties and thus the Court lacked jurisdiction over the case, that the Attorney General is without authority to bring the action, that the Attorney General lacks standing to bring the action, and that “[t]he Attorney General may not maintain this suit which conflicts with his duty to uphold the laws of the State and in which he has taken a position adverse to the interests of his statutory clients.” The trial judge (Sanders, J.) sustained Burning Tree’s demurrer, stating in pertinent part: “It is clear that the existence of a justiciable issue is an absolute prerequisite to the maintenance of a declaratory judgment action. A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded. The issue must present more than a difference of opinion, and in instances where constitutional rights are sought to be adjudicated, concrete and specific issues must be raised in actual cases rather than as theoretical or abstract propositions.

Gordon Hatt v. Mark Anderson, et al., 297 Md. 42 [ 464 A.2d 1076 ] (1983). “In the case at bar no controversy exists between plaintiffs and defendant. Pursuant to statutory authority, in 1965 and 1975, defendant and the State of Maryland entered into agreements whereby defendant received preferential property tax assessments, and, subsequently, in 1978, defendant was advised by the Attorney General of his determination that its facilities were operated with the primary purpose of serving or benefiting members of a single sex, thus exempting it from the prohibition of sex ¹⁵ discrimination contained in Article 81, Section 19(e)(4), Annotated Code of Maryland. Pursuant to these agreements and determination, defendant has enjoyed preferential tax treatment. It does not now complain to, nor has it any quarrel with, the tax assessing authority of the State of Maryland. “It is usual that an attack upon the constitutionality of a statute relating to the collection of taxes is brought against that governmental agency vested with the authority to collect taxes, namely, the Maryland Department of Assessments and Taxation.

At argument it was conceded by the Attorney General that he is precluded from filing this action against the Department of Assessments and Taxation since it is his statutory duty to defend that agency on behalf of the State of Maryland. Although he may in fact be thus precluded, this does not authorize the bringing of an action to declare a legislative enactment invalid against a party with whom he has no dispute. “Based on the foregoing, the Court concludes that it has no jurisdiction to entertain this petition because it perceives no justiciable controversy. In view of the Court’s holding in this regard, it need not decide the other issues raised by demurrer.” An appeal was entered to the Court of Special Appeals. We granted a writ of certiorari prior to hearing in that court in order that we might address the important public issues here presented.

II Burning Tree contends that the case is moot. Obviously, if it is moot we ordinarily order dismissal of the case, since, as we have observed in a host of cases, appellate courts do not sit to give opinions on abstract propositions or moot questions and appeals which present nothing else for decision are dismissed as a matter of course. See, e.g., Hagerstown Repro. Health Serv. v. Fritz, 295 Md. 268, 271-72 , 454 A.2d 846, 848 , cert. denied, — U.S.-, 103 S.Ct. 3528 , 77 L.Ed.2d 1389 (1983); Potts v. Governor, 255 ¹⁶ Md. 445, 449, 258 A.2d 180, 182 (1969), and cases cited in each.

In Attorney General v. Anne Arundel County Sch. Bus, 286 Md. 324 , 407 A.2d 749 (1979), the Court said, “A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” 286 Md. at 327 , 407 A.2d at 752 . Accord Maryland Tob. Grow. v. Maryland Tob.

Auth., 267 Md. 20, 25-26 , 296 A.2d 578, 580 (1972); State v. Ficker, 266 Md. 500, 506-07 , 295 A.2d 231, 235 (1972); Lloyd v. Supervisors of Elections, 206 Md. 36, 39 , 111 A.2d 379, 380 (1954). Burning Tree’s contention of mootness is based on the fact that there is pending in the Circuit Court for Montgomery County another case “addressing virtually all of the significant issues raised by the merits of this suit.” It asserts that there is no “reason to require two judicial resolutions of the same issues,” and thus that “[t]his case, representing an unprecedented assertion of power by the Attorney General, should be dismissed as moot.” From the representations made to us, it is true that the other case does not have the defects which, as we shall determine, exist in this proceeding. The pendency of that other case, however, does not render this proceeding moot. The controversy between the parties to this appeal persists.

Thus, we overrule the motion to dismiss the appeal on grounds of mootness. Ill The Attorney General asserts that a demurrer was not the appropriate responsive pleading for Burning Tree to file in order to contend that the Attorney General had no right to bring an action challenging the constitutionality of the statute in question. He claims that Burning Tree should have filed a motion raising preliminary objection under Maryland Rule 323 and that having failed to do so “the club has waived its right to assert this defense.” ¹⁷ In Shapiro v. County Comm., 219 Md. 298 , 149 A.2d 396 (1959), Judge Prescott said for the Court: “It should be borne in mind that a demurrer is rarely appropriate in a declaratory judgment action. Where a bill of complaint shows a subject matter that is within the contemplation of the relief afforded by the declaratory decree statute, and it states sufficient facts to show the existence of the subject matter and the dispute with reference thereto, upon which the court may exercise its declaratory power, it is immaterial that the ultimate ruling may be unfavorable to the plaintiff.

The test of the sufficiency of the bill is not whether it shows that the plaintiff is entitled to the declaration of rights or interest in accordance with his theory, but whether he is entitled to a declaration at all; so, even though the plaintiff may be on the losing side of the dispute, if he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory decree. 1 Anderson, Declaratory Judgments, Section 318.” 219 Md. at 302-03 , 149 A.2d at 398-99 . The inappropriateness of a demurrer to the merits in a declaratory judgment action was further noted in Hunt v. Montgomery County, 248 Md. 403 , 237 A.2d 35 (1968). Chief Judge Hammond said for the Court: “The reason is plain why a demurrer should be used in declaratory judgment actions only to challenge the legal availability or appropriateness of the remedy. 'Where the plaintiff’s pleading sets forth an actual or justiciable controversy, it is not subject to demurrer since it sets forth a cause of action, even though the plaintiff may not be entitled to a favorable declaration on the facts stated in his complaint; that is, in passing on the demurrer, the court is not concerned with the question whether the plaintiff is right in a controversy, but only with whether he is entitled to a declaration of rights with respect to the matters alleged.’ 22 Am. Jur.2d Declaratory Judgments, § 91 (1965).” 248 Md. at 409 , 237 A.2d at 38 . ¹⁸ Moreover, in Borders v. Board of Education, 259 Md. 256 , 269 A.2d 570 (1970), ultimately quoting from Shapiro as having reached the “same conclusion,” the Court said, citing several cases, “[I]t is well settled in this State and elsewhere that the only place a demurrer has in declaratory judgment is to challenge the appropriateness of the remedy.” 259 Md. at 258 , 269 A.2d at 571 .

In this case, Burning Tree is asserting that there is no justiciable controversy, that the Attorney General has not asserted such standing as is cognizable in a declaratory judgment action, and that the Attorney General has no right to bring the action. It follows, therefore, that these assertions fall squarely within the rule delineated in the above cases with respect to when a demurrer to a declaratory judgment action may properly be filed. Therefore, the contention of the Attorney General on this issue is without merit. IV The Attorney General asserts two theories upon which he says he is entitled to maintain this proceeding: the “dilemma” doctrine and his inherent powers as Attorney General.

We agree with neither contention. We shall assume arguendo for the purpose of our decision that there is a justiciable controversy. A The Attorney General contends that he is a public official faced with “administering” a statute he believes to be unconstitutional and that he thus has standing to maintain a declaratory judgment action in order to extricate himself from this incongruous position. He argues that the command of § 19(e)(4), which requires him to determine whether a club is operated with the primary purpose of serving a single sex, squarely places him within the doctrine. ¹⁹ E. Borchard, Declaratory Judgments 771 (2d ed. 1941) states: “Attention may properly be called to the dilemma of the public officer either in refusing to act under a statute he believes to be unconstitutional or in carrying it out and later finding that it was unconstitutional: for refusing to act, he may expose himself to an action in tort, removal from office, fine, or even greater penalty; for acting, he may be exposed to an action for damages or disciplinary measures.

Tax collectors, sheriffs, enforcing officers of all kinds are thus compelled to assume, under great jeopardy, the risks of constitutionality; and in many states, on a writ of mandamus, the mandamused officer cannot raise the defense of unconstitutionality of the governing statute. To compel an officer, feed or salaried, thus to stake his security and livelihood in every case on the correctness of his conjecture on the constitutionality of the statute is a burden which no civilized system should impose upon any officer. Even those courts which protect the officer against mistaken action under a warrant fair on its face simply throw on the victim of the officer’s acts the risks and consequences of the mistake. “Needless to say, the declaratory judgment, initiated either by the officer or by the citizen affected, supplies the way out of the dilemma. It avoids all the attendant risks of mistaken and unconstitutional action, without delaying seriously the performance of public functions.” (Footnotes omitted.) It is clear, however, that the type of official that Professor Borchard envisioned as being empowered to maintain such an action is an administrative one.

See id. at 976, 978-80, 982-83. We find five cases in which we have discussed or applied the dilemma doctrine: State’s Atty. v. City of Balto., 274 Md. 597 , 337 A.2d 92 (1975); Baltimore County v. Churchill, Ltd., 271 Md. 1 , 313 A.2d 829 , appeal dismissed, 417 U.S. 902 , 94 S.Ct. 2594 , 41 L.Ed.2d 207 (1974); Director of Finance v. Alford, 270 Md. 355 , 311 A.2d 412 (1973); City ²⁰ of Baltimore v. Concord, 257 Md. 132 , 262 A.2d 755 (1970); Pressman v. State Tax Commission, 204 Md. 78 , 102 A.2d 821 (1954). In each of these cases, except for Pressman , the official was responsible for administering the particular statute being challenged. In other words, the official whose “dilemma” provided the impetus necessary to bestow upon him standing to maintain a declaratory judgment action was the one charged with carrying out the provisions of the challenged statute.

Moreover, in each case an existing controversy between the parties provided the basis for the official’s being granted standing. The first case we have found in Maryland which mentions the dilemma doctrine is Pressman, 204 Md. 78 , 102 A.2d 821 . The plaintiffs, Baltimore City and a taxpayer, sought a declaration that a statute which reduced the franchise tax on mutual savings banks located within the State was unconstitutional. Pressman was decided a relatively short period of time after the enactment of Ch. 724 of the Acts of 1945, which reenacted the Uniform Declaratory Judgment Act in Maryland.

As the General Assembly made clear in its preamble, this reenactment was intended to blunt decisions of this Court relative to the act as originally enacted by Ch. 294 of the Acts of 1939. See the editor’s note to Code (1957) Art. 31A, § l. 2 In Pressman the Court was ²¹ concerned, among other things, with whether administrative action had been by-passed. Judge Delaplaine there discussed for the Court situations in which challenges to the constitutionality of a statute had been permitted. He said for the Court: “We hold, therefore, that, in view of the desirability of having the question of constitutionality determined for the benefit of the members of the State Tax Commission and other State, City and County officials, as well as the savings banks and the taxpayers generally, the request for a declaratory decree was not inappropriate.

It can readily be appreciated that a public official sometimes faces a dilemma either in refusing to act under a statute he believes to be unconstitutional, or in carrying it out and subsequently finding it to be unconstitutional. In commenting on the value of a judicial declaration in such a situation, Professor Borchard wrote as follows: 'To compel an officer * * * thus to stake his security and livelihood in every case on the correctness of his conjecture on the constitutionality of the statute is a burden which no civilized system should impose upon any officer. * * * Needless to say, the declaratory judgment, initiated either by the officer or by the citizen affected, supplies the way out of the dilemma. It avoids all the attendant risks of mistaken and unconstitutional action, without delaying seriously the performance of public functions.’ Borchard, Declaratory Judgments, 2d Ed., 771.” 204 Md. at 85 , 102 A.2d at 825 . Pressman was not a dilemma case.

In the light of that which we shall discuss in subsection B of this part IV, it is of interest to note that the Court in Pressman referred to what was then Art. 31A, § 11. This section provided that ²² where an act was alleged to be unconstitutional, a copy of the proceeding must be served on the Attorney General. The Court said, “Hence, the Attorney General was entitled to have notice of the proceedings, and to have the opportunity to decide whether to intervene on behalf of the State or any State agency affected.” Id. at 86, 102 A.2d at 826 . In Concord, 257 Md. 132, 262 A.2d 755 , Baltimore City had instituted condemnation proceedings relative to property owned by two churches.

A stipulation was filed with the petitions for condemnation which stated that the constitutionality of the relevant Maryland Code provisions would be submitted for judicial determination. A declaratory judgment action subsequently was instituted by the City, its Director of Finance, and its Comptroller. We determined that the Director of Finance and the Comptroller were placed in the dilemma recognized in Pressman because they were responsible for carrying out the provisions of a statute which authorized them to take direct financial actions with respect to a private party. We noted in Concord : “In holding that the individual appellants had standing, we are not overlooking the principles that the City, as a creature of the State, possesses no power which it may invoke against the State, even on constitutional grounds ... and may have even less right to challenge the constitutionality of a statute under which it is proceeding.” 257 Md. at 139 , 262 A.2d at 759 (citations omitted).

In Alford, 270 Md. 355 , 311 A.2d 412 , the official involved in a dilemma was, like those in Concord , charged with disbursing public funds. In that case, the Baltimore City Director of Finance was found to be placed in a position of peril by virtue of a conflict between a letter from the City Solicitor advising him not to pay special disability retirement benefits to a policeman and his duty under a statute authorizing such payment. The law challenged in Churchill, 271 Md. 1 , 313 A.2d 829 , involved tax refunds. Baltimore County sought declaratory relief against two corporations, the Director of the State ²³ Department of Assessments and Taxation and the Attorney General of Maryland to the effect that a statute under which certain tax refunds were to be paid was unconstitutional.

The County also sought an injunction against hearings which had been scheduled before the Department of Assessments and Taxation on the refunds claimed. By the time the case came on for hearing Directors of Finance of Baltimore County and Anne Arundel County, among others, had intervened as parties plaintiff. The trial judge concluded that Baltimore City and the various counties which had become involved in the litigation lacked the requisite standing. As the Court put it, however, “in order to reach the merits of the case [the trial court] assumed, without deciding, that at least one of the county officials could maintain the suit, even though ail of them had failed to allege that they would be subject to a pecuniary loss or to an increase in their taxes____” 271 Md. at 5 , 313 A.2d at 832 .

After quoting from Concord on the subject and then reiterating that “[t]he political subdivisions, as creatures of the State, have ‘no right to question the constitutionality of the acts of [their] superior and creator/ ” Judge Singley went on to say for the Court: “The difficulty here is that there is some doubt that the county officials here involved were faced with the dilemma encountered in City of Baltimore v. Concord Baptist Church, Inc., supra, since it can be argued that their duty was merely ministerial here, because the responsibility for determining erroneous assessments lay, under the terms of the Act, with either the assessing authority of Baltimore City and of the counties, or of the State, and not with the local tax collectors. In order to reach the merits, we shall assume, arguendo, that the individual appellants have standing here.” 271 Md. at 9 , 313 A.2d at 834 . The last case in which we have previously applied the dilemma doctrine is State’s Attorney v. City of Baltimore, 274 Md. 597 , 337 A.2d 92 . The dispute there arose as a result of a statute enacted by the General Assembly (Code ²⁴ (1957, 1972 Repl.Vol.) Art. 58, § 44), providing that after July 1, 1973 violations of the Building and Electric Code in Baltimore City would be actions at law and that “[jjurisdiction in all cases of violations of [such code] shall be vested in the District Court of Baltimore City having civil jurisdiction.” Judge Eldridge said for the Court that prior to the en'actment of that statute “[a]part from the effect of Art. 53, § 44, violations of Article 32 of the Baltimore City Code (1966 Edition) (the ‘Building Code of Baltimore City’) and violations of Baltimore City Ordinance No. 902, approved December 22, 1966 (the ‘Housing Code of Baltimore City'), are criminal offenses (misdemeanors),' punishable by a fine of up to three hundred dollars for each offense.” 274 Md. at 599, 337 A.2d at 94.

About ten days before the statute was to become effective, the State’s Attorney of Baltimore City advised the City Solicitor of Baltimore City that after July 1, 1973, the responsibility for legal action in cases arising under the Building and Electrical Code would be transferred to the office of the City Solicitor. The City then instituted a declaratory judgment action against the State’s Attorney seeking both a declaration that Art. 53, § 44 was unconstitutional and a mandatory injunction requiring that the State’s Attorney continue the criminal prosecution of the Building and Electrical Codes violations. Subsequently, the Commissioner of the Department of Housing and Community Development of Baltimore City intervened as a party plaintiff. The defendants argued that Baltimore City had no power to challenge the validity of the statute in question because it is a political subdivision of the State.

The trial judge (Cole, J.) held that since the commissioner was the official “charged with the responsibility of enforcing the housing code and building code,” he was entitled to maintain the action and, therefore, it was not necessary to decide whether Baltimore City had standing. In this Court the issue was again raised as to whether Baltimore City might ²⁵ challenge the constitutionality of the statute in question. Judge Eldridge said for the Court: “[I]t was stipulated by all parties that the plaintiff Embry, the Commissioner of Housing and Community Development of Baltimore, is the city official responsible for the administrative enforcement of the Building and Electrical Codes of Baltimore City. Therefore, we conclude that he had standing under the principle that a public official, faced with a dilemma ‘either in refusing to act under a statute he believes to be unconstitutional, or in carrying it out and subsequently finding it to be unconstitutional,’ has standing to bring a declaratory judgment action to challenge the validity of the statute.

Baltimore County v. Churchill, Ltd., supra, 271 Md. at 5 [ 313 A.2d 829 ]; City of Baltimore v. Concord, supra, 257 Md. at 138 [ 262 A.2d 755 ]; Pressman v. State Tax Commission, 204 Md. 78, 85 , 102 A.2d 821 (1954). Since one of the plaintiffs, Commissioner Embry, had