State v. G & C Gulf, Inc.

BATTAGLIA, J. We are called upon in this case, seminally, to address justiciability, which has been defined as, “[tjhe quality, state, or condition of being appropriate or suitable for adjudication by a court.” Black’s Law Dictionary 997 (10th ed.2014). The doctrine has been “ ‘developed to identify appropriate occasions for judicial action.’ ” State Center, LLC v. Lexington Charles Ltd. Partnership, 438 Md. 451, 498 , 92 A.3d 400, 427 (2014), quoting 13 Charles Alan Wright, et al., Federal Practice and Procedure § 3529, at 611 (3d ed.2008). Issues of justiciability may encompass unripe and moot controversies, abstract or hypothetical disputes, collusive lawsuits and claims by disinterested plaintiffs. John A. Lynch, Jr. & Richard W. Bourne, Modern Maryland Civil Procedure 2-8 (2d ed.2004, 2014 supp.). “When a court believes a litigant’s claim is somehow unfit for judicial determination, it dismisses the claim under the rubric of ‘justiciability.’ ” Id. at 2-3.

The rationale for the doctrine is that “addressing non-justiciable ⁷¹⁹ issues would place courts in the position of rendering purely advisory opinions, a long forbidden practice in this State.” State Center, LLC, 438 Md. at 591 , 92 A.3d at 483-84 (internal quotation marks omitted). Ripeness is the issue in the present declaratory judgment action, which pits G & C Gulf, Inc. (“G & C Gulf’), Respondent, a towing company located in Montgomery County, Maryland, the victor at the trial level, against the State, with respect to towing statutes enacted by the General Assembly in 2012, currently codified as Sections 21-10A-01 through 21-10A-06 and 27-101(c)(25) of the Transportation Article of the Maryland Code. 1 The contested provisions provide: (a) In general. — Unless otherwise set by local law, a person who undertakes the towing or removal of a vehicle from a parking lot: (3) Shall notify the owner, any secured party, and the insurer of record by certified mail, return receipt requested, and first-class mail within 7 days, exclusive of days that the towing business is closed, after towing or removing the vehicle, and shall provide the same information required in a notice to a police department under item (2) of this subsection; (7) May not employ or otherwise compensate individuals, commonly referred to as “spotters”, whose primary task is to report the presence of unauthorized parked vehicles for the purposes of towing or removal, and impounding; ⁷²⁰ Md.Code Ann., Transp. § 21-10A-04(a)(3), (a)(7). A violation of Section 21-10A-04(a) is a criminal offense and subjects the violator “to a fine of not more than $500 or imprisonment for not more than 2 months or both”. Md.Code Ann., Transp. § 27-101(c)(25).

With respect to the purpose of the ripeness doctrine, we have said it is “to ensure that adjudication will dispose of an actual controversy in a conclusive and binding manner.” State Center, LLC, 438 Md. at 591-92 , 92 A.3d at 484 (internal quotation marks omitted). 2 An action for declaratory judgment is not treated differently than any other suit for purposes of ripeness. 3 Hatt v. Anderson, 297 Md. 42, 45 , 464 A.2d 1076, 1078 (1983) (“[T]he existence of a justiciable controversy is an absolute prerequisite to the maintenance of a declaratory judgment action.”). “Generally, an action for declaratory relief lacks ripeness if it involves a request that the ⁷²¹ court declare the rights of parties upon a state of facts which has not yet arisen, or upon a matter which is future, contingent and uncertain.” State Center, LLC, 438 Md. at 591 , 92 A.3d at 484 . In Hamilton v. McAuliffe, 277 Md. 336, 339-40 , 353 A.2d 634, 637 (1976), we summarized the necessity of a justiciable controversy to a declaratory judgment action; we opined: That the existence of a justiciable controversy is a prerequisite to the maintenance of a declaratory judgment in Maryland is well settled. Prince George’s Co. v. Bd. of Trustees, 269 Md. 9 , 304 A.2d 228 (1973). 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.’ ” Patuxent Co. v. Commissioners, 212 Md. 543, 548 , 129 A.2d 847 (1957).

It is thus clear that the declaratory judgment process is not available to decide purely theoretical questions or questions that may never arise, Prince George’s Co. v. Chillum-Adelphi, 275 Md. 374 , 340 A.2d 265 (1975); Liss v. Goodman, 224 Md. 173 , 167 A.2d 123 (1961), or questions which have become moot, Eberts v. Congress’l Country Club, 197 Md. 461 , 79 A.2d 518 (1951), or merely abstract questions, Davis v. State, 183 Md. 385 , 37 A.2d 880 (1944). That the declaratory judgment process should not be used where a declaration would not serve a useful purpose or terminate a controversy is equally well settled. Liss v. Goodman, supra; Bachman v. Lembach, 192 Md. 35 , 63 A.2d 641 (1949); Staley v. Safe Deposit & Trust Co., 189 Md. 447 , 56 A.2d 144 (1947). The present action arose when G & C Gulf filed a complaint in the Circuit Court for Anne Arundel County and requested a declaratory judgment, a temporary restraining order, a preliminary injunction and a permanent injunction against the State of Maryland, the Governor of Maryland, the Acting Secretary of the Maryland Department of Transportation 4 ⁷²² and the Attorney General of Maryland, challenging the constitutionality of Sections 21-10A-04(a)(3) and 21-10A-04(a)(7); the State’s Attorney for Montgomery County and Montgomery County were later added as defendants.

The complaint was amended again to reflect that, in 2013, the Legislature amended Section 21-10A-04(a)(3) to extend from three days to seven days the requirements for towing companies to inform “the owner, any secured party, and the insurer of record”. 5 In its complaint, G & C Gulf alleged that its “rights, duties, status and legal relations are affected by” the statute, and further, that it is “in jeopardy of being charged with criminal offenses under provisions of [the contested statute]”. G & C Gulfs factual allegations were sparse, reflecting mainly G & C Gulfs business practices and the roles of the various Governmental entities identified as defendants: 10. Plaintiff is engaged in the business within Maryland of the towing or removal of vehicles from parking lots which includes privately owned facilities consisting of 3 or more spaces for motor vehicle parking that are accessible to the general public and intended by the owners of the facilities to be used primarily by the owner’s customers, client[e]le, residents, lessees or guests. 12. The [contested statute] governs the conduct of Plaintiffs business within Maryland of the towing or removal of vehicles from parking lots which include privately owned facilities consisting of 3 or more spaces for motor vehicle parking that are accessible to the general public and intended by the owners of the facilities to be used primarily by the owner’s customers, client[e]le, residents, lessees or guests. 15.

Plaintiffs rights, duties, status and legal relations are affected by the [contested statute]. ⁷²³ 15. A. Defendants State, Governor, Attorney General, State’s Attorney and County (through its Department of Police) have authority to enforce Maryland laws in Montgomery County, Maryland, and have authority to enforce the [contested statute] in Montgomery County, Maryland. 16. Plaintiff is in jeopardy of being charged with criminal offenses under provisions of the [contested statute] with which Plaintiff cannot comply and/or are arbitrary, oppressive and unreasonable, violate Article 24 of the Maryland Declaration Of Rights, violate the [D]ue [P]rocess [C]lause of the 14th Amendment to the United States Constitution, are void for vagueness, and are unconstitutional. Additional allegations G & C Gulf included reflected a history of the enactment of the statute, and a comparison of the statute to a prior, non-penal, Montgomery County towing statute.

G & C Gulf did not allege that it had been prosecuted or threatened with prosecution under the statute nor that it actually had engaged in activities prohibited by the statute. G & C Gulf, specifically, alleged that Section 21-10A-04(a)(3), which now provides seven days for a towing company to notify the owner of a vehicle that his or her car was towed, “is arbitrary, oppressive and unreasonable, violates Article 24 of the Maryland Declaration of Rights,[ 6 ] violates the [D]ue [P]rocess [C]lause of the 14th Amendment to the United States Constitution,[ 7 ] is void for vagueness, and is unconstitutional”, because it creates requirements with which towing companies cannot comply and that the violation of those requirements is criminalized. G & C Gulf averred: ⁷²⁴ 27. In the course of its business, Plaintiff tows vehicles insured by insurers not authorized to write a vehicle liability policy in Maryland.

The [contested statute] does not require the Administration to provide towers with a database containing “the proper address for providing notice to an insurer under subsection (a)(3) of this section for each insurer” not authorized to write a vehicle liability policy in the State. Absent the Administration’s providing such information, Plaintiff will not be able to comply with the requirement to notify the insured under Section 21-10A-04(A)(3) ____ As of the date of filing this action, it is Plaintiffs understanding that the Administration will not make such information available to any tower free of charge. Because the notice provisions of Section 21-10A-04(A)(3) impose requirements with which a tower cannot comply, the State’s exercise of its police power to impose such notice requirements is an arbitrary, oppressive and unreasonable exercise of its police power, violate Article 24 of the Maryland Declaration Of Rights, violate the [D]ue [P]roeess [C]lause of the 14th Amendment to the United States Constitution, are void for vagueness, and are unconstitutional. 28. In the course of its business, Plaintiff tows vehicles that are not registered in Maryland (herein “Out Of State Vehicles”).

The [contested statute] does not exempt towed vehicles which are Out Of State Vehicles from the notice provisions in Section 21-10A-04(a)(3); yet, the [the contested statute] does not require the Administration to maintain and make available to any tower free of charge a database for the tower to obtain the name and address of the owner, any secured party, and the insurer of record of Out Of State Vehicles in order to be able to comply with the notice provisions of Section 21-10A-04(a)(3). Because the notice provisions of Section 21-10A-04(A)(3) impose — requirements the violation of which are crimes — with which a tower as “a person who undertakes the towing or removal of a vehicle from a parking lot” cannot comply, the State’s exercise of its police power to impose such notice require ⁷²⁵ ments is an arbitrary, oppressive and unreasonable exercise of its police power, violate Article 24 of the Maryland Declaration Of Rights, violate the [Djue [Pjrocess [C]lause of the 14th Amendment to the United States Constitution, are void for vagueness, and are unconstitutional. G & C Gulf also challenged Section 21-10A-04(a)(7), which prohibits towing companies from “employLing] or otherwise compensat[ing] individuals, commonly referred to as ‘spotters’, whose primary task is to report the presence of unauthorized parked vehicles for the purposes of towing or removal, and impounding”, by alleging that it is arbitrary, oppressive and unreasonable, void for vagueness, violates Article 24 of the Maryland Declaration of Rights and violates the Due Process Clause of the 14th Amendment of the United States Constitution. G & C Gulf alleged that it is not a violation of the statute or Maryland law for individuals to have the primary task of reporting unauthorized vehicles, but it is a violation for towing companies to “employ” individuals with the primary task of reporting authorized vehicles, so that Section 21-10A-04(a)(7) is unconstitutional: 34.

It is an arbitrary, oppressive and unreasonable exercise of the State’s police power, a violation of Article 24 of the Maryland Declaration Of Rights, a violation of the [D]ue [PJrocess [CJlause of the 14th Amendment to the United States Constitution, are void for vagueness, and are unconstitutional, for the State to enact a law prohibiting — and making a crime — a “person who undertakes the towing or removal of a vehicle from a parking lot” to “employ or otherwise compensate an individual whose primary task is to report the presence of unauthorized parked vehicles for the purpose of towing or removal, and impounding” when: (i) it is not a violation of the [contested statute] or of any other Maryland law for “individuals” to have the “primary task” to “report the presence of unauthorized parked vehicles for the purpose of towing or removal, and impounding” and (ii) it is not a violation of the [contested statute] or of any other Maryland law for any “person” to “employ or otherwise compensate individuals” whose “primary task is ⁷²⁶ to report the presence of unauthorized parked vehicles for the purpose of towing or removal, and impounding”. G & C Gulf contended that the phrase “primary task” is void for vagueness, “because from that language Plaintiff does not know what conduct on its part will subject it” to a fine or imprisonment. G & C Gulf alleged, additionally, that Section 21-10A-04(a)(7) goes against the additional requirement of Section 21 — 10A.—04(a)(5)(iii) for the towing company to provide “[pjhotographic evidence of the violation or event that precipitated the towing of the vehicle”, because the towing companies cannot compensate individuals to gather and report the required photographic evidence without, in turn, violating Section 21-10A-04(a)(7). G & C Gulf requested that the court enter a temporary restraining order, a preliminary injunction and a permanent injunction enjoining the State from enforcing Sections 21-10A-04(a)(3) and (a)(7) of the Transportation Article and to enter a declaratory judgment determining that the Sections are unconstitutional.

After the matter was joined, discovery ensued. G & C Gulf, in a response to an interrogatory propounded by the State asking for it to “[ijdentify, for each of the past five calendar years ... the number of vehicle[s] you have removed that are not registered in Maryland”, answered that it had removed 1,848 vehicles not registered in Maryland in 2013, 2,417 in 2012, and 2,413 in 2011. Trial commenced on February 19, 2014, in the Circuit Court for Anne Arundel County. Montgomery County was represented by an Assistant County Attorney, and the remaining defendants were represented by an Assistant Attorney General.

The Assistant Attorney General orally moved for summary judgment arguing that the case did not present a justiciable controversy, because there was no actual or threatened prosecution of G & C Gulf under the statute. A colloquy ensued among the judge, the Assistant Attorney General and the Assistant County Attorney: ⁷²⁷ THE COURT: So, on behalf of the State of Maryland, are you offering a stipulation that [G & C Gulf] will not be prosecuted? [ASSISTANT ATTORNEY GENERAL]: I can’t do that. Frankly, Your Honor, that is not really the issue. When and if that ever happens, that is when it becomes a justiciable controversy.

But I think if they have been towing to the tune of 1,848 vehicles and they have actually been towing — in 2012, they towed 2,417 and 2012 was actually when the law was in effect and nothing has happened to them. So, I think it is fair to say that if that holds, they are never going to be threatened with prosecution let alone even prosecuted. THE COURT: Ms. [Assistant Attorney for Montgomery County], do you want to say me too, or, take no position or— [ASSISTANT ATTORNEY FOR MONTGOMERY COUNTY]: Your Honor, thank you. Montgomery County has been named as a Defendant because our Police Department is the one that is enforcing the statute.

But we don’t really have a position either way. If the statute were declared unconstitutional, then, obviously, we wouldn’t enforce it, but we are enforcing it now because it is the law. THE COURT: When you say we are enforcing it now, if we morphed into opening statements, is that — would it be the position of the county that, in fact, you are ready to charge and prosecute or at least take to the Commissioner’s Office the Plaintiff? [ASSISTANT ATTORNEY FOR MONTGOMERY COUNTY]: Yes. The president as well as the general manager of G & C Gulf testified.

Neither of them, however, identified any prosecution, threat of prosecution, or any violation of the statute by the company. In closing argument, counsel for G & C Gulf stated: “I am not aware and I would be aware whether or not [the president of G & C Gulf] or his company or anybody in ⁷²⁸ the company had yet received a citation. I am not aware of that having happened.” In response to the oral summary judgment motion, G & C Gulf filed a post-hearing memoranda related to ripeness, in which it emphasized the statement made by the Assistant County Attorney for Montgomery County. G & C Gulf posited that it was a judicial admission 8 by an entity which, through its police department, would enforce the statute.

The State, in its reply, argued that the Assistant County Attorney’s statement in open court was of “dubious worth” and did not constitute a specific threat against G & C Gulf, because, inter alia, it was “not specifically directed at G & C Gulf’ and amounted to “nothing more than a recitation of the County police force’s intention to fulfill its general duty to enforce the law.” The State contended, additionally, that “there was no evidence (or even allegation in any pleading) that the State’s Attorney for Montgomery County has threatened G & C Gulf or anyone else with criminal prosecution for violating this statute.” On April 7, 2014, the Circuit Court Judge filed a written opinion in which he denied the oral motion. The trial judge relied on the Assistant County Attorney’s statement in open court to find that G & C Gulf had presented a justiciable controversy because “counsel for the Montgomery County Government (including its police department) stated the intention of that county government to enforce the new towing law.” The trial judge next turned to the merits of the case and granted G & C Gulfs requests for declaratory