Verzi v. Baltimore County

KARWACKI, Judge. We are asked in this case to decide whether Baltimore County’s “location requirement” for towing operators, i.e., a requirement that a licensed tow operator have a place of business within the county before that operator may be called by police to tow vehicles which have been disabled by accidents, violates either Article 24 of the Maryland Declaration of Rights or the federal constitution. I. In order to protect the general welfare and public interests of the community, prevent fraud, and eliminate unnecessary traffic problems and delays, Baltimore County has declared that the towing of vehicles which are disabled in the County by collision or other accident is subject to the supervision and administrative control of the County. The regulations affecting county towing businesses are found in Title 24, Article VI, §§ 24-221 to 24-235 of the Baltimore County Code (1988, Supp.1993) (“the Code”). 1 According to the regulatory scheme, prospective Baltimore County towing operators must apply for a license with the Baltimore County Department of Permits and Licenses (“DPL”) in order to tow disabled vehicles from the scene of an accident occurring in Baltimore County. § 24-226.

The De ⁴¹⁴ partment of Permits and Licenses then forwards the application to the Baltimore County Police Department (“BCPD”) in order to ensure that the applicant meets various requirements such as adequate facilities, proper registration and maintenance of towing vehicles, etc. § 24-228. The license approval process is governed by § 24-229, which provides in pertinent part: “(a) New license towers shall be approved by the department of permits and licenses based on the need for additional service. If the need does not exist, the application will not be approved. The transfer of an existing license shall be treated in the same manner as a new license, and any such transfer shall be subject to all provisions applicable thereto.” Section 24-230 governs the procedure by which towing operators are dispatched.

That section provides in part: “The chief of police shall retain a current list of all duly licensed towing operators. Whenever the services of a towing vehicle shall be required and request is made to the police department for the providing of such services, the police department shall call the licensed towing operator located in the county whose place of business is closest to the scene of the accident, except when an owner requests a specific licensed tow company; provided that such tow company can respond within a reasonable time.” In order to simplify the dispatching procedure, the BCPD has divided the county into separate geographical tow areas. Each licensed tow operator is assigned a tow area and, in the event of an accident, is called to tow vehicles in its area only, unless a motorist requests a specific operator serving another tow area. No provision is made for the towing of vehicles disabled by other than accident.

Douglas Verzi is the owner and operator of Madonna Auto Sales and Services, Inc.. The business, which includes towing services, is located in Harford County, about two and one-half miles from the Baltimore County line. Verzi’s February, 1987 application for a tower’s license was denied in November, ⁴¹⁵ 1987. Verzi appealed the denial to the Baltimore County Board of Appeals (“the Board”) pursuant to § 24-225. 2 The Board determined that there was an established need for another tower in the section of Baltimore County that Verzi wished to serve, but it held that § 17-64 (currently § 24-230) prohibited the issuance of a towing license to an operator not located in Baltimore County.

Verzi sought judicial review of the Board’s decision in the Circuit Court for Baltimore County. That court reversed the Board’s decision, citing the Board’s finding of a demonstrated need for a tower and holding that the eligibility for a towing license was governed by § 17-63 (currently § 24-229), a section which contains no location restrictions. Pursuant to the court’s order, the County granted Verzi a towing license. The BCPD, however, declined to assign him a towing area, relying on § 24-230 which requires the police to call “the licensed towing operator located in the county whose place of business is closest to the scene of an accident, except when an owner requests a specific licensed tow operator----” (Emphasis added).

As a result of the BCPD’s failure to assign him a tow area, Verzi has not been called to tow vehicles disabled by accident except on two occasions in which motorists specifically requested his services. Verzi filed suit in the Circuit Court for Baltimore County, seeking a declaratory judgment that the location requirement in § 24-230 of the Baltimore County Code is unconstitutional and requesting a writ of mandamus ordering the County to assign Verzi a tow area and to call him in the event that a tow operator is needed in his tow area. That court granted summary judgment for the County, declaring the location requirement in § 24-230 constitutional. Verzi noted an appeal to the Court of Special Appeals, and this Court issued a Writ ⁴¹⁶ of Certiorari prior to consideration by the intermediate appellate court. 331 Md. 178 , 626 A.2d 967 .

We shall reverse the judgment of the Circuit Court for Baltimore County.

II

Verzi asserts that the location requirement found in § 24-230 of the Baltimore County Code violates the equal protection guarantees of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. Section I of the Fourteenth Amendment provides in part: “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” Article 24 of the Maryland Declaration of Rights states: “That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, our 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.” The doctrine of equal protection of the laws is an integral element of our theory of government. Justice Jackson, in an oft-quoted passage, succinctly summed up both the doctrine and its purpose: “Invocation of the equal protection clause ... does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact.

I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens ⁴¹⁷ the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.

Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.” Railway Express Agency v. New York, 336 U.S. 106, 112-13 , 69 S.Ct. 463, 466-67 , 93 L.Ed. 533, 540 (1949) (Jackson, J., concurring). Although the Maryland Constitution does not contain an express guarantee of equal protection of the laws, it is well established that Article 24 embodies the same equal protection concepts found in the Fourteenth Amendment to the U.S. Constitution. See, e.g., Kirsch v. Prince George’s County, 331 Md. 89, 96 , 626 A.2d 372, 375 , cert. denied, — U.S.-, 114 S.Ct. 600 , 126 L.Ed.2d 565 (1993); Murphy v. Edmonds, 325 Md. 342, 353 , 601 A.2d 102, 107 (1992); Hargrove v. Board of Trustees, 310 Md. 406, 416 , 529 A.2d 1372, 1377 (1987), cert. denied, 484 U.S. 1027 , 108 S.Ct. 753 , 98 L.Ed.2d 766 (1988); State v. Wyand, 304 Md. 721, 726 , 501 A.2d 43, 46 (1985), cert. denied, 475 U.S. 1095 , 106 S.Ct. 1492 , 89 L.Ed.2d 893 (1986); Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597, 640 , 458 A.2d 758, 780-81 (1983); Attorney General v. Waldron, 289 Md. 683, 704-05 , 426 A.2d 929, 940-41 (1981); Bruce v. Director, Chesapeake Bay Affairs, 261 Md. 585, 600 , 276 A.2d 200, 208 (1971). We have consistently recognized that the federal Equal Protection Clause and the Article 24 guarantee of equal protection of the laws are complementary but independent, and “a discriminatory classification may be an unconstitutional breach of the equal protection doctrine under the authority of Article 24 alone.” Attorney General v. Waldron, supra, 289 Md. at 715 , 426 A.2d at 947 .

See also Kirsch, supra, 331 Md. at 97 , 626 A.2d at 376 ; Hornbeck, supra, 295 Md. at 640 , 458 A.2d at 781 . At the same time, however, the two provisions are similar enough that we will consider Supreme Court decisions interpreting the federal clause as persuasive, but not controlling, authority for our interpretation of Article 24. ⁴¹⁸ Recently, we reviewed the traditional standards under which equal protection claims have been judged. In Kirsch, supra, we relied on Judge Eldridge’s comprehensive review of equal protection analysis from Murphy v. Edmonds, supra. “In most instances when a governmental classification is attacked on equal protection grounds, the classification is reviewed under the so-called ‘rational basis’ test. Generally under that test, a court ‘will not overturn’ the classification unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude that the [governmental] actions were irrational.’ A statutory classification reviewed under the rational basis standard enjoys a strong presumption of constitutionality and will be invalidated only if the classification is clearly arbitrary. “Where, however, a statutory classification burdens a ‘suspect class’ or impinges upon a ‘fundamental right,’ the classification is subject to strict scrutiny.

Such statutes will be upheld under the equal protection guarantees only if it is shown that ‘they are suitably tailored to serve a compelling state interest.’ “Finally, there are classifications which have been subjected to a higher degree of scrutiny than the traditional rational basis test, but which have not been deemed to involve suspect classes or fundamental rights and thus have not been subjected to the strict scrutiny test. Included among these have been classifications based on gender, discrimination against illegal aliens with regard, to a free public education, and a classification under which certain persons were denied the right to practice for compensation the profession for which they were qualified and licensed.” Kirsch v. Prince George’s County, 331 Md. at 98 , 626 A.2d at 376 (quoting Murphy v. Edmonds, 325 Md. at 355-357 , 601 A.2d at 108-109 (citations omitted)). We also noted in Kirsch that the Supreme Court has on occasion varied from the strict, three-level analysis of equal protection claims. In recent years, the Court has applied ⁴¹⁹ rational basis scrutiny to several statutes and found them lacking.

See discussion in Kirsch, supra, 331 Md. at 98-104 , 626 A.2d at 376 -379 (citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985) (invalidating a city ordinance which required certain group homes, including homes occupied by mentally retarded citizens, to obtain a special use permit); Hooper v. Bernalillo County Assessor, 472 U.S. 612 , 105 S.Ct. 2862 , 86 L.Ed.2d 487 (1985) (striking down a statute which provided a state tax exemption for Vietnam veterans who resided in the state before a certain date); Williams v. Vermont, 472 U.S. 14 , 105 S.Ct. 2465 , 86 L.Ed.2d 11 (1985) (invalidating automobile registration tax scheme which exempted cars purchased and on which sales tax was paid in Vermont); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 , 105 S.Ct. 1676 , 84 L.Ed.2d 751 (1985) (striking down gross premiums tax scheme which favored domestic insurance companies over out-of-state firms); Zobel v. Williams, 457 U.S. 55 , 102 S.Ct. 2309 , 72 L.Ed.2d 672 (1982) (invalidating Alaska’s dividend distribution scheme that based amount of dividend on length of Alaskan residency)). We, too, have not hesitated to carefully examine a statute and declare it invalid if we cannot discern a rational basis for its enactment. “The vitality of this State’s equal protection doctrine is demonstrated by our decisions which, although applying the deferential standard embodied in the rational basis test, have nevertheless invalidated many legislative classifications which impinged on privileges cherished by our citizens.” Attorney General v. Waldron, supra, 289 Md. at 715 , 426 A.2d at 947 . Although we have traditionally accorded legislative determinations a strong presumption of constitutionality, Murphy v. Edmonds, 325 Md. at 356 , 601 A.2d at 114 ; Briscoe v. Prince George’s Health Dep’t, 323 Md. 439, 448 , 593 A.2d 1109, 1113 (1991), we have also required that a legislative classification rest upon “some ground of difference having a fair and substantial relation to the object of the legislation.” State Bd. of Barber Examiners v. Kuhn, 270 Md. 496, 507 , 312 A.2d 216, 222 (1973). ⁴²⁰ In Mayor and City Council of Havre de Grace v. Johnson, 143 Md. 601 , 123 A. 65 (1923), the city of Havre de Grace enacted a local ordinance which required an individual to establish city residency for a minimum of six months before he or she could operate a car for hire within the city limits.

The city claimed that the ordinance was enacted to remove congestion from the streets and to reduce the large number of “irresponsible drivers” of cars for hire. We found no true relationship between the stated object of the legislation and the distinction between resident drivers and nonresident drivers, and we declared the ordinance invalid. There was so little relation between the classification and its proffered justification, in fact, that the classification raised questions about the true goal of the ordinance. “It certainly cannot be seriously argued that an ordinance, which forbids nonresidents of Havre de Grace from transacting, on its streets the same business which they permit residents to transact there, is a reasonable regulation designed in the interest of the public health or welfare, because we certainly cannot assume as a matter of law that the operation of an automobile hiring business by a nonresident of Havre de Grace would, because of his nonresidence, constitute a greater peril to the health or welfare of that town than it would if operated by a resident. A more reasonable and probable view would be that it was intended to confer the monopoly of a profitable business upon residents of the town.” Mayor & City Council of Havre de Grace v. Johnson, 143 Md. at 608 , 123 A. at 67 .

By effectively conferring a monopoly upon residents of the city, Havre de Grace unconstitutionally infringed on the right of nonresidents to ply their trade within the city limits. Residency was also a classifying characteristic in Bruce v. Director, supra. Bruce concerned state statutes which imposed residency requirements and territorial licensing requirements on commercial crabbing and oystering in Maryland. The statute required commercial crabbers and oyster-men to obtain licenses issued by their county of residence, and ⁴²¹ it restricted commercial crabbing and oystering to that county in which a license was issued.

Because counties could not issue licenses to nonresidents, commercial watermen who resided in one of 13 tidewater counties could not cross county lines to pursue their trade, and residents of the 10 non-tidewater counties in Maryland were effectively foreclosed from all commercial crabbing and oystering in the state. We recognized in Bruce that although a distinction between residents of different counties may be valid for some purposes, “an otherwise legitimate classification of residents which may be made for many purposes, cannot be made if it