*1 thе second question presented by the petitioners is an internal procedural issue for the General Assembly that is best, Thus, and properly, resolved it. we hold that question second presented by the petitioners is a political question nonjusticiable.
978A.2d 702 CLUB, LONACONING TRAP INC.
v. MARYLAND DEPARTMENT OF The ENVIRONMENT. 139, Sept. Term,
No. 2008. Appeals Maryland. Court of
Aug. *4 Levasseur, (S. Pillai, Buckel Buckel Ramani & Jason C. Cumberland), brief, on for Petitioner. Gansler, Zimmerman, F. Atty. (Douglas Asst. Gen.
Matthew Gen.), brief, for Atty. Respondent. HARRELL, BATTAGLIA, BELL, C.J.,
Argued before BARBERA, GREENE, MURPHY, ADKINS and JJ. HARRELL, J. If a tree falls in the forest it, and no one is around to hear
does it make a An sound? existentialist likely would decline to confront the riddle because human impact expressly is by query.2 excluded the No philosophers they, the Maryland Environment, however, of the Department apparently would entertain something approaching the obverse of question: If firearms are fired in a rural area Allegany of County before 1 January neighbors some complain, and the noise exceeds the relevant prevаiling standards, ambient noise why regulate can’t we loudness the sound? Supplying an answer to this admittedly unphilosophical question is our task in this case. (2007
Maryland Repl.Vol.), Article, Code Environment 3- 401(c),3in relevant part, limits the authority Maryland (“MDE”) of the Department Environment “noise adopt control rules and ... regulations prohibit [that] trapshooting, skeetshooting, or other target shooting between the hours of 9 a.m. and 10 in certain p.m.” counties. In the General (6) Assembly 3-401(c), added paragraph §to from exempting regulations such “shooting sports clubs” in Allegany, Anne Arundel, Garrett, counties, and Washington provided clubs were “chartered in operation as of 2005.” The however, Legislature, created an exclusion to the exemption, allowing MDE to continue noise enforcing control original 1. The philosophical of this venerable by riddle is attributed Century (1685- some to the philosopher, George 18th Irish Berkeley 1753), sponsor concept "subjective of "immaterialism” idealism.” subject 2. Most treat the starting point existentialists human as Thus, philosophical thought. likely this riddle would be deemed them to be too abstract and remote from the experi- concrete human worthy ence contemplation. to be of serious provided, statutory 3. Unless otherwise Maryland all references are to (2007 Repl.Vol.), Code operative Environment Article. The facts of this 3-401(c), paragraph case concern which was added to the statutory language statute 2005. The changed at issue has not since adoption. *5 not in compliance “determines were that the agency on clubs as of 2005.” January regulations] MDE existing [with Club, is a Petitioner, (“Lonaconing”), Inc. Lonaconing Trap that has existed as Allegany County club in shooting sports 2005, however, it was January As of 1 years. such over noise existing with an compliant not to be determined that aсtivity human-initiated causes regulation prohibiting adjacent 60 decibels to be heard on than greater sounds hours.4 here during daylight property residential Allegany of the Circuit Court for judgment a challenges trapshooting property the club from its County enjoining The club claims that regulation. until it with complies (c)(6) Protection of the Equal violates the Clause 3-401 States Constitution and Amendment to United Fourteenth distin- Rights by Declaration Maryland Article in shooting sports clubs different arbitrarily between guishing clubs that discriminating arbitrarily against counties and with the compliant agency’s regula- MDE determines were not shall we explain, 2005. For reasons we tions as of 3-401(c)(6) does not run afoul of the club’s Federal hold that rights equal protection. constitutional State
I. on a 2.8 acre lot on Lonaconing operates Water Station Allegany County. in a area of Its has property Road rural a capacity shooting range been used in some as since the a began shooting 1930s. formed summer Lonaconing, 1970; in 1972. league incorporated According the club record, members, it 30 of whom approximately eighty has 26.02.03.03A(1) provides, exceptions appli- with limited 4. COMAR here, may permit person not cause or emission of cable "[a] prominent periodic discrete tones and noises which exceed a level applicable which is 5 dBA lower than the level listed Table 2.” “Table (dBA property provides daytime limit of 65 “dBA” on residential a 2" using specific technique "A- refers to decibels as measured called 26.02.03.03D(2) “|t|he weighting”). provides COMAR measure- points be conducted at on or within ment of noise levels shall property receiving property.” line of the in a at the participate shooting league Lonaconing’s club. shooting schedule has remained more or less the same since season, annual During twenty-two shooting week *6 from to in lasting April September, engage club members trapshooting5 Tuesdays Thursdays on and from 4:30 to p.m. Saturdays 8:00 and from 10:00 a.m. to 12:00 p.m. p.m.6 MDE is the agency responsible enforcing, among State standards, things, other environmental noise lim- sound level its, and noise control In rules.7 Frances Nolan and Russell, adjacent Patricia whose residences are on properties to Lonaconing’s, complained MDE about the noise generat- by Lonaconing’s shooting ed activities.8 In April pursu- Jarinko, complaints, ant to the David noise agency’s control acoustic specialist, enforcement conducted tests to Trapshooting practice shooting clay "pigeons,” typically 5. is the of using gauge shotguns, shooting positions. twelve from a series of set sport originated terminology century practice The its the 18th hunting passenger pigeons. dwindling Due to the and eventual extinc- flocks, passenger pigeon sport adopted clay, tion of the use of rather live, "pigeons” century. Lonaconing approx- than the late 19th used imately clay "pigeons” per during week 22-week season 2004. Court, however, testimony 6. There was some before the Circuit that shooting Saturday occasionally p.m. on lasted until 2:00 or 3:00 3-401(a). 7. See operating shooting sports
8. was as a club when Russell and adjacent properties respectively. Nolan moved to in 1973 and complained Allegany Nolan testified that “in the mid 80s” she to the County produced by Board of about Commissioners the noise the club. authorities, complained Russell also testified that she avail, to local to no twenty years deciding for almost before to contact MDE. She complained that stated she first to the club about the noise in In presented Allegany County she to the Board of Commissioners a petition signed by disgruntled 30 area residents who also were with the Lonaconing. Lonaconing complaints noise from averred that the 2003 way retaliating against to MDE were Nolan’s club because she complained Department believed that the club to the State of Natural season, harvesting ginseng her prompting Resources about father out of agency investigation allegations. to commence an of those The Nolan, testimony acquaintance elicited club from an who stated that problems investigated. Nolan had no with the club until her father was property during Nolan’s levels heard on measure the sound Measur- activities. shooting scheduled Lonaconing’s regularly (which approximately is boundary her ing property from line) of fifteen for a duration Lonaconing’s firing feet from sounds gunshot that the received minutes, determined Jarinko higher. decibels or eighty were generally decibels on than 60 register higher sounds prohibit two months Approximately property. residential adjoining Harman, addi- conducted later, supervisor, George Jarinko’s results. comparable measurements with tional sound June Lonaconing’s leadership with Harman visited to the club’s test results agency’s 2003 and presented that Lonacon- President, explained Edward Evans. Harman limita- decibel permitted activities exceeded the ing’s shooting fines. Follow- subject potentially tion and that the club was letter, Harman sent a dated June ing meeting, *7 the club towards MDE’s desire to work with conveying Evans shooting activi- Lonaconing continued an amiable solution. from Nolan and ties, more to MDE prompting complaints half, Lonaconing the next and a year Russell. Over matter, to do so.9 the but were unable attempted to resolve 2004, Harman sent another on 10 November Accordingly, exceeding was reiterating Lonaconing letter to Evans that Abrahamson, Dr. Lauren 9. Harman testified at trial that MDE hired University, Hopkins between MDE The Johns to moderate discussions past alleged Lonaconing. all Harman said iliat MDE resolved other violators around the State without COMARnoise violations with litigation. expressed hope his He for the same result from the need for Lonaconing. possible mitigation meetings parties discussed with The club, shooting part a reduction in volume efforts on the such as potentially could of "berms” or other barriers that and the creation department with that his discussed reduce the noise. Harman testified Resources, Mining MDE's Pro- Department of Natural as well as relocating mine sites or gram, possibility of the club to abandoned Lonaconing public testified that potentially other free land. Evans trees, part of the National Rifle planted several based on the advice Association, gasoline by with an un- but that the trees were burned have party. responded planting trees would not known Harman adequate mitigation The club did not avail been an sound measure. Further, government relocation. possibility of free land for itself of the precluded understanding zoning his laws Evans indicated that erecting mitigation possibility for of the sounds. straw bales decibel permitted limitations and him informing that the club had until 29 November 2004 to achieve compliance or submit a plan becoming compliant. for The letter further warned MDE would initiate an enforcement action against Lonaconing if any shooting activity occurred on club after property November unless the club had an MDE-approved plan for compliance. Presumably letter, due to Harman’s Lonacon- ing ceased its shooting activities December 2004. In March 2005, Harman yet Evans, sent another letter to reiterating willingness MDE’s to work with Lonaconing to develop plan compliance. Meanwhile, during the 2005 legislative session in Annapolis, Assembly chapter General enacted 2005 Md. Laws 1834-37, which, in part, main exempted existing shooting Arundel, sports Allegany, Garrett, clubs Anne and Wash- counties ington from noise control regulations prohibiting and other trapshooting forms of target shooting. The General however, Assembly, chose not to extend the exemption to clubs that MDE determined were not “in compliance” as of 1 existing 2005 with MDE regulations. Chapter 1834-37, 3—401(c)(6).10 2005 Md. Laws is codified as In April Lonaconing resumed its regularly scheduled later, activities. month shooting One MDE conducted addi- tional sound measurements on the Nolan and Russell proper- ties. yielded Each test results exceeding 80 decibels. That same day, agency against initiated Lonaconing an action in the Circuit Court for Allegany County, civil seeking penalties injunction and an prohibiting from engaging in shooting activities on its property until it complied with the 60 *8 decibel limitation in established the regulations. evidentiary court, in hearing
At the trial George Dr. Lutz testified for MDE as an in expert witness the fields of psychology management. and sound Dr. Lutz that he stated 10. Chapter 2005 Md. Laws ability 1834-37 also limited the Arundel, Garrett, governments Allegany, local in Washington Anne and implement regulations counties to local prohibiting ordinances or “trapshooting, skeetshooting, target shooting or other between the 3-105(a)(4). p.m.” § hours of 9 a.m. and 10 See adopted by control U.S. guidelines authored the noise He that variables ranges. explained for its small arms Army (such as gunfire sound of measured/perceived affecting wind, barometric are humidity, pressure) and temperature, Thus, as four hundred feet. at a distance as small negligible from Lona- emanating of gunshots in his the sounds opinion, levels generate will sound consistently coning’s property proper- and Russell’s decibels on Nolan’s eighty than greater ties.11 еxceed the shooting that activities
Lonaconing denied level, to provide COMAR fails averring decibel permitted The made decibel levels. club also measuring a standard First, it claimed that it need not alternative arguments. two event, existing regulations, because comply with 3-401(c)(6) them recently abrogated enacted addition of new, prospective regula- and MDE to required promulgate Second, tions, something MDE did not do. club asserted (c)(6)(ii) Equal 3—401 violates the Protection Clause of the Fourteenth Amendment to the United States Constitution Maryland Rights by and Article 24 of the Declaration of shooting between clubs in distinguishing arbitrarily sports against clubs that the by discriminating different counties MDE determines were not with the compliant agency’s regula- 1 January tions as of opinion
On 27 the Circuit Court rendered an $1,000 for the fining Lonaconing and order recorded violations 2005, and it from further May enjoining shooting on 26 it property compliant “become[s] activities on its until with rules and sound level limits and noise control Lonaconing this The court found that “exceeded State.” conducting its skeet permissible [sic]12 noise levels while explained relationship 11. Dr. Lutz also that there is a between the rise perceived every level and the loudness of a sound. For ten decibel increase, perceived to be twice as decibel the sound is loud. trap shooting previously, is a 12. As noted club. Skeet shooting trap shooting primarily shooting differ the number of targeted. “pigeons" at which the are “stations" and the rate *9 activities,” shooting noting that MDE the same employed instruments and that it uses when methodology investigating complaints other noise and that the results obtained were consistent with the generally by sound levels produced gun- rejected shots fired at the distances at issue. The court that there Lonaconing’s argument is no standard gоverning levels, the measurement of sound that reasoning COMAR provides applicable by standard “60 dbA” as the setting maximum permitted sound level on residential property, observing that “dbA” is defined as “an abbreviation for the sound level in by decibels determined net- A-weighting [the] work of a sound level meter byor calculation from octave band or one-third octave band data.”13 Because the measurements by taken Jarinko and Harman were A-weighted, the court they complied held that with the standard mandated CO- MAR. rejected
The also Lonaconing’s argument Circuit Court (c)(6)(ii) new, 3—401 MDE to required promulgate prospec- tive regulations govern after 2005 to sound levels produced by shooting the club’s activities. to the According court, a shooting sports compliance club’s with existing regula- may tions be only by determined reference to pre-existing, Thus, continuing regulations. court reasoned that deter- mining non-cоmpliance based on the existing regulations, while a new set of requiring regulations pursue enforcement club, against a non-compliant would be an absurd interpreta- 3—401(c)(6)(ii). tion respect Lonaconing’s equal With protection challenge, the court held that the club failed to complained show distinctions of were arbitrary irrational. noted a timely appeal to the Court of Special which
Appeals, judgment affirmed trial court in an unre- ported opinion. This the club’s granted Court Petition for ofWrit Certiorari to consider the following: Whether 3—401(c)(6)(ii) new, § adoption required MDE to adopt 26.02.03.01(B)(6). 13. See COMAR prohibit in order noise control
prospective compliant agency deems clubs that activity by shooting *10 and, regulations? 2005 with January pre-existing as of 3—401(c)(6)(ii) guaran- equal protection § violates Whether constitutions? and State of the Federal tees Env’t, A.2d 406 Md. Club, Md. Dep’t Inc. v. Trap of (2008). II. environmental 3-401(a), adopt MDE “shall to
Pursuant limits, rules and control standards, level and noise sound noise health, the public necessary protect as regulations authority In this welfare, delegating property.” and general prohib- MDE, agency’s power limited the the Legislature counties. activities in enumerated sport” “shooting it certain did session, Assembly the General legislative Before the 2005 3-401(c)(5). provides: That section §inso rules and (i) control level limits and noise The sound prohibit may this subsection adopted under regulations shooting be- target or other skeetshooting, trapshooting, or other any range on p.m. tween the hours of 9 a.m. and and in club that is chartered shooting sports of a property 1, 2001. January as of operation (ii) Allegany, in Anne apply does not paragraph This Garrett, Howard, Charles, Calvert, Arundel, City, Baltimore and Counties. Mary’s Washington Montgomery, St. promul- authority, statutory grant
Pursuant to its limits, including sound estаblishing several gated regulations 26.02.03.03(A)(3), “the emission prohibits which COMAR that exceed 60 noises” periodic discrete tones prominent during daytime property residential receiving on decibels hours. (c)(6) § 3-401 to the Environ- added Legislature
In shooting noise Article, regulations ment from MDE exempting exempted previously in counties not clubs certain sports 3-401(c)(5). provides: The new section (6)(i) (ii) Except as provided subparagraph of this paragraph, may not adopt [MDE] sound level limits and noise control rules and regulations under this subsection prohibit trapshooting, skeetshooting, or other target shooting between the house of 9 a.m. and 10 p.m. Allegany Anne County, County, Arundel County, Garrett or Washington County range other of a property shooting sports club that is chartered in operation as of
(ii)l. Subject provisions to the 2 of subsubparagraph this subparagraph, may adopt [MDE] sound level limits and noise control rules and under this subsection that prohibit trapshooting, skeetshooting, or other target between the hours shooting of 9 a.m. and 10 p.m. Allega- ny County, Anne Arundel County, County, Garrett or Wash- *11 ington County any range or other property shooting of a club that [MDE] determines is not compliance as of 1, standards, 2005 with environmental noise sound limits, level or noise control rules and regulations adopted under this title.
2. A sound level limit or noise control rule or regulation adopted under this subsection shall allow trapshooting, skeetshooting, and other target shooting between the hours of 9 a.m. by and 10 a p.m. shooting sports club that [MDE] determines has become compliant with sound level limits and noise control regulations rules and adopted under this title.
Lonaconing asserts that the MDE regulations in existence 2005, bn and before 1 January with which the Circuit Court directed the club to no comply, longer to the applied club after 1 January that, 3-401(c)(6)(ii) 2005. It contends by § еnacting 1 in provides which that MDE “may adopt” noise control regulations, Assembly General intended to abrogate earlier noise control regulations. This is not a fair reading of the statute.
“ ‘The cardinal rule of statutory interpretation is to ” ascertain and effectuate the intent of the Legislature.’ Bd. of
339 Zimmer-Rubert, 200, 214, 233, 241 973 A.2d 409 Md. Ed. v. Resources, (2009) Natural 385 v. Dep’t Kushell (quoting of (2005)). 563, 576, 193 This Court reads 870 A.2d Md. are that none of its provisions whole to ensure statute as a Ins. v. Corp. & Cas. Guar. meaningless. Property rendered “ (2007). Yanni, 474, 481, 5 neither ‘[We] A.2d 397 Md. 919 to reflect an intent not evi- so as language add nor delete statute; nor language [do we] in the plain denced or subtle interpretations statute with forced construe the ” Ambrose, v. United States limit or extend its application.’ Kushell, 425, 439, (quoting 942 A.2d Md. “ 193). 576-77, avoid a Additionally, A.2d at ‘[w]e Md. at unreasonable, illogical, that is construction the statute ” Zimmer-Rubert, sense.’ 409 Md. with common inconsistent Osborne, v. 395 Md. (quoting A.2d at 242 Walzer at (2006)). 427, 432 911 A.2d (c)(6)(h) 1 § 3-401 advаnced Lona- interpretation The First, at least two is unreasonable for reasons. coning 3-401(a), MDE the Assembly granted § the General through standards, limits, noise sound power “adopt environmental Thus, because regulations.” and noise control rules and noise control stems power promulgate MDE’s 3-401(a), prior Legislature’s adop- from which existed to the 3-401(c)(6), the latter section is viewed as a properly tion of already existing rulemaking new limitation on MDE’s authori- not, suggests, The as ty. wholly 2005 statute is MDE to grant authority requires promulgate new new *12 enforcement power. in order to exercise its Sec- regulations ond, the illogical Assembly it would be General to demand (or its noise control enact that MDE re-enact when the regulations), agency’s regulations existing different determining as of 1 2005 the standard for January provide non-compliant club’s status. 60 we hold that the decibel sound limit
Accordingly, to and on 1 regulation рrior required by clubs, such shooting sports continues to as Lonacon- apply 3-401(c)(6)(i)’s ing, that are excluded from general exemp- tion for in existing applicable clubs the counties.
III. of its Lonaconing places emphasis most on its argument 3-401(c)(6)(ii) the Equal violates Protection Clause of the Fourteenth Amendment to the United States Constitu- tion and Article 24 of the Declaration Maryland Rights.15 of It contends that there is no rational ... “allowing basis for State, trapshooting majority of the or every- indeed where else in Allegany County except [Lonaconing] range, but from prohibiting [Lonaconing] operating as it had for over thirty years.” Deane, (2007),16
In Conaway v.
401 Md.
14. The Fourteenth Amendment in relevant State "[n]o deny any person jurisdiction ... equal protection shall within its Const, XIV, § of the laws.” U.S. amend. 1. provides 15. Article 24 ought imprisoned That man no to be taken or or of his disseized freehold, outlawed, exiled, or, privileges, liberties or or or manner, life, destroyed, deprived liberty by property, or of his or but judgment peers, the Law his of the land. Maryland express equal While the Constitution does not an contain clause, protection concept equal diis Court has said that "the protection is embodied in Article 24.” [] State v. Good Samaritan (1984).
Hosp., 299 Md. 327 n. 473 A.2d 900 n. 7 Although equal protection brought pursu- Deane an claim involved only, previously, generally apply ant to Article we observed that "we Equal 24 and [Article Protection Clause of the Fourteenth Amend- Perez, in a like maimer ment] and to the same extent.” See Ehrlich v. (2006). provi- 394 Md. 908 A.2d While the two capable divergent application,” Lonaconing sions "are does not suggest protection that it receives broader under оne than under the case, Thus, resolving distinguish other. See id. this we shall not Equal between the Protection Clause Fourteenth Amendment and Article 24. *13 contemplates review tier of top [constitutional] “[T]he clearly upon based creates a distinction a statute when upon infringes criteria, when that enactment or ‘suspect’ ‘fundamental,’ deemed to be or interests personal rights rigorous, a must withstand product the legislative then ” most-demanding stan- this utilizing scrutiny.’ ‘strict When a review, unconstitutional we deem dard of constitutional distinction unless the classification challenged legislative govern- compelling a “necessary promote it is by formed ment interest.” exacting and contrast, the least generally employ
In we review when the of constitutional most deferential standard significant- review neither interferes under legislative action classifi- suspect right implicates a fundamental nor ly with scrutiny, level of this “ratiоnal basis” cation. Under as it is long muster so will constitutional pass classification interest.” legitimate governmental related to a “rationally under rational words, the statute uphold In other we will of different treatment varying review “unless basis any is so unrelated to the achievement persons groups only can purposes [the court] legitimate combination of actions were irrational.” [governmental] that the conclude scrutiny level of are reviewed to this pursuant Statutes constitutional, if the only “and will be invalidated presumed classification clearly arbitrary.” [sub- classification is “[A] reasonable basis some ject having review] to rational basis result nicety may with mathematical need not be made can long so as the state inequality” produce some A justify of facts” to the distinction. conceivable “state constitutional passes to rational review often subject statute muster. two- rigid review has arisen to leaven
A third level of
which courts review
tiered constitutional framework
A
lev-
“heightened”
action.
constitutionality
government
scrutiny,”
otherwise known as “intermediate
scrutiny,
el of
a classifica-
challenged
action creates
triggered
is
when
subjected
higher degree
to a
tion “which
been
ha[s]
than the traditional
scrutiny
and deferential rational basis
*14
test,
[yet]
but which
not
been
ha[s]
deemed to involve
suspect classes or fundamental rights.” This middle-tier
scrutiny
be
may
implicated to review a “quasi-suspect”
classification.
In order to survive this intermediate level of
the statute in
scrutiny,
question “must
important
serve
government objectives and must
substantially
be
to
related
the achievement of
objectives.”
those
Deane,
272-77,
(first
“Under
Arma
constitutionality,”
enjoys
strong presumption
tion
a
200,
not be held void
cost,
A.2d at
and “will
299 Md. at
welfare
relating
public
considerations
if there are
Beauty Schools v.
Salisbury
supported,”
it can be
by which
300 A.2d
268 Md.
Cosmetologists,
Bd.
State
(1973). Thus,
necessary
reviewing court]
[for
is not
“[i]t
As
the General
actually prompted
identify the reasons
State,
Md.
Ass’n v.
Aggregates
as it did.”
legislate
sembly
(1995). Furthermore, “the
886, 894
A.2d
337 Md.
must
clear
show
statutory classificаtion]
attacking [a
party
upon any
it does not rest
rational
evidence that
convincing
Armacost,
299 Md. at
arbitrary.”
essentially
basis but is
Lonaconing’s equal § 3- demonstrating of its burden carry club does not 401(c)(6)(h) rationally any legitimate govern- is not related contends that interest. ment basis, one, why much less a rational no MDE has offered 2003, 2004 pre-July activities [Lonaconing’s] shooting (which 1, complaint) for MDE’s predicate 2005 form while subject to noise control were properly clubs and trapshooting sport shooting similarly-situated Frederick, Carroll, Harford, George’s, Prince enthusiasts in in Maryland other counties were free many Baltimore and standards or limits regulatory promul- without operate that time of citizen during period, regardless gated by demonstrated how an impor- Nor has the State complaints. objective sound noise control is government tant by limiting trapshooting advanced one rural substantially it cоunty allowing rural while unabated largely area of a county majority rest of that and the of the throughout the subdivisions. political State’s relied on latitude afforded simply
MDE has to create such territorial distinc- legislature’s prerogative preroga- rational basis for such a offering any tions without tive, has Special Appeals abrogated and the Court subject classifi- rationality to assess the responsibility legitimate cation under rational basis or intermediate scruti- ny analysis. MDE presented has no evidence of a statutory history basis for reflecting valid this distinction. argument This misunderstands burden under rational basis review. make Our cases clear that Lonaconing must 3-405(c)(6)’s § establish irrationality,17 something it fails to do on this record.
The club claims that the statute violates equal protec guarantees First, tion in two ways. it asserts that 3- 401(c)(6)(h) distinguishes arbitrarily between counties with respect application of sub-subрaragraph denying the (from general exemption noise control regulations) to clubs non-compliant so, deemed as of 1 2005. In doing that, 3-401(c)(5), points club out under similarly situated political most subdivisions of the clubs State do not have ability their to evade application of noise control regulations determined on that based benchmark. This argument shall carry the day.
Territorial classifications generally are permissible
equal
Armacost,
under
protection analysis. See
atMd.
409, 474 A.2d at
The
191.
territorial distinction here is no
different.18 As the Supreme
explained,
Court
state legis-
“[a]
See,
Deane,
e.g.,
Second, Lonaconing
gen
denying
maintains
(or
clubs,
County
other
exemption
Allegany
any
eral
within
(c)(6)),
not in
county
compliance
covered
3—401
deemed
existing
creates an unconstitutional classifica
with
in the
were
deemed
county,
tion because other clubs
which
not
however,
case,
(1923)).
A.
The instant
concerns environ-
mental,
noted, Verzi,
economic, regulation.
We
that territorial
favoritism,
classifications,
economic
established
reasons besides
review,
they
ordinarily
have
incidental
rational basis
even if
an
survive
economic
at
non-compliant, now may produce with impunity gunshot register, sounds that on neighboring residentiаl properties, the same as or louder than the sounds generated by Lonacon- ing’s activities, shooting (and while must develop for) pay a means of reducing the produced sounds by its activities. This argument also is unavailing.
“Underinclusiveness does not create an equal protec
tion violation under the rational
Armacost,
basis test.”
299
409,
Md. at
Lonaconing also that it is the shoot emphasizes only 8—401(c)(6)(ii)’s § ing club affected exclusion of sports clubs This, however, as of 1 non-compliant January deemed is itself, in and of if significant Village even true. See Olech, Willowbrook v. 528 U.S. 120 S.Ct. 1074 (2000) 145 L.Ed.2d that “the (noting number of immaterial for equal protection analy individuals a class is sis”). Lonaconing equal protection For to succeed (l)[it] one,” as a “class of it “must show that was challenge from others there differently similarly treated situated treatment.” See Stot was no rational basis for the disparate Tex., (5th Cir.2007). ter v. Univ. F.3d As satisfy stated does not its burden to previously, 3—401(c)(6)(ii) is without a rational basis. establish Moreover, Lonaconing explain does not how it is treated similarly-situated from clubs. differently shooting sports 3—401(c)(6) governed by § in the counties after opening Clubs 2005 likewise do not receive the benefit of 3- 401(c)(i)’s general regulation. from noise control exemption *19 MDE revealed that an club in by existing Evidence adducеd County compliance Anne Arundel was deemed not with plan noise control but since to a existing regulations, agreed the compliance agency.20 with irrationality as evidence of Finally, Lonaconing suggests that, existing if and when it becomes with MDE’s 60 compliant property, § decibel sound limitation for residential 3- 401(c)(6)(ii)2 it maintain with require compliance does not to time in period that limitation for determinant order Lonaconing actually may stresses that other clubs have been out of 3-401(c)(6)(i)'s compliance regulations, § with MDE but now fall with and, only complained exemption, thus, because no one about them to MDE compliance. MDE never deemed them not in enforce- Passive however, regulation, generally protec- equal a ment of does not violate discriminatory guarantees a ‘‘ha[s] [] tion unless it effect was States, by discriminatory purpose.” Wayte a 470 motivated v. United 1524, 574, (1985). U.S. 105 S.Ct. 84 L.Ed.2d 586 The require proactively persons constitution does not the State to seek or breaking suggest the law. Id. that MDE entities does deeming against by investigating it not in discriminated club it compliance; nor has the club adduced evidence that MDE would have Thus, differently complaints against handled another club. the General 3-401(c)(6)(i)'s Assembly’s general exemp- decision to exclude from only compliance MDE tion clubs that deemed not as of deny equal protection Lonaconing, despite the 2005 does not stat- passive existing level ute’s reliance on MDE's enforcement of sound stated, Assembly may presumed limits. As the General have that existing complained would have about clubs that were not citizens complying with the sound level limits. 3-401(c)(6)(i)’s from exemption general §of the benefit gain irration- Thus, that it is the club postulates regulations. noise We place. in the first compliant become require al to it to has Legislature legitimate previously, noted disagree. As reliance clubs’ reasonable protecting existing interests in are not that clubs ensuring while regulations, existing by excessive levels found to be at sound shooting currently Any problems those The statute advances interests. MDE. (including clubs future as a result of in the may develop that escalating compliant) it becomes if and when Lonaconing, deteriorating guns due to louder they produce, that noise structures, legisla- matters of for are example, proofing sound in its of the statute expediency” The “wisdom or tive concern. judicial intervention. Salis- form is not a matter current A.2d at 378. 268 Md. at bury, State, 286 Corp. v. Supermarkets As we observed General (1979), have been laws] A.2d “[some Md. a unwise, crazy a quilt, a complex, patchwork, characterized as maze, befuddling statutory unnecessarily labyrinth, legal a inconvenience, But even were hypocrisy. crabgrass, an voided so, not for those reasons be those laws could indicated, constitutional have absent some judiciary. As we interfere.” no judiciary simply power has infirmity 3-401(c)(6) “tangled reveals a Lonaconing’s suggestion assessment, but be an accurate statutory history” may web of *20 we need here. Were something opine that is not this court (c)(6)’s Asia, § 3—401 might we sever prophesied King review, the rational basis standard knot.21 Under Gordian ability. that however, only Legislature properly possesses and intract- According legend, the Gordian knot was an immense to kings Phrygian palace of the affixed to an ox-cart outside the able knot knot would held that whoever could unravel the in Gordium. Tradition BC, army Macedón and his “king of In 333 Alexander of become Asia.” Ankara). (in Turkey, The Mace- modern south of wintered in Gordium hand, and, king untie it severed examined the knot unable to donian Proceeding conquer known Asian much of the it with his sword. thereafter, aspira- the Great. Our he earned die name Alexander world tions are more mundane. IV. subject
We hold that is to the 60 decibel sound limitation property. for residential A plain § 3- reading 401, in entirety, need, its makes clear that MDE did not after promulgate clubs, new regulations for such 3-401(c)(6)(i)’s as to which Lonaconing, general exemption from noise control regulations does not apply. We also re- solve that Lonaconing did not satisfy burden to establish that the regulatory scheme is not rationally related to a legitimate government reasons, interest. For these the judg- ments of the trial court and the intermediate court appellate are affirmed. THE
JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER.
BELL, C.J., MURPHY, JJ., GREENE Dissent. MURPHY, J., Dissenting Opinion by BELL, C.J., which GREENE, J., join. While I recognize Petitioner has not argued that the at legislation “special issue is a law” prohibited by Section 33 Constitution, of Article III of Maryland I would decide this issue as “desirable to guide trial court [as well as] expense avoid the and delay of another appeal.” Maryland 8-131(a). Rule Club,
In
Burning
State v.
Tree
315 Md.
In
Cities Service
v.Co.
290 Md.
(1981),
A.2d 663
this Court examined decisions applying
concluding
“no mechanical rules for deciding
Nonetheless,
cases” exist.
the Court enumerated several
factors to be considered in deciding whether a statute
a is
“special law.” The Court
the importance
reiterated
of these
factors
State v.
Hospital,
Good Samantan
299 Md.
(1984).
In the case at the General Petitioner, injunctive relief against statute that for provides similar against every entity Allega- such relief prohibits (1) It is clear that thе enactment at issue has ny County. entity effect of a burden no other than practical imposing Petitioner, to other similar entities apply and will circumstances, injunction should be future. these Under that it is based an unconstitu- ground upon dissolved on the tional law. “special”
Moreover, Assembly certainly has the while General (or judge that allow the trial require) to enact statutes right (or subsequent) an enhanced second impose penalty alcohol, impaired by conviction of while driving of “alcohol restrictions” on motor- provide imposition for the *22 offense, ists who have been convicted of that it would not be Assembly rational conclude that the General also has the right to enact a statute under which the who can only persons henceforth be driving impaired by convicted of alcohol while (1) are who that offense in persons Allegany committed Coun- ty, and had been of that previously prior convicted offense I to October 2009. would therefore hold that the enactment
also fails the “rational basis” test. BELL Judge Judge
Chief GREENE have authorized join me to state that they this dissent.
STATE of 74, Sept. Term, No. 2008. Appeals Maryland.
Court of
Aug.