Appellees Brief — Board of Directors of Rotary International v. Rotary Club of Duarte

Supreme Court brief1986

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Ray le THE

Supreme Court of the Unit

OcToser Term. 1986

BOARD OF DIRECTORS OF

ROTARY INTERNATIONAL AND

ROTARY DISTRICT 530,

Appellants,

vs.

ROTARY CLUB OF DUARTE,

MARY LOU ELLIOT and

ROSEMARY FREITAG.

APPEAL FROM

THE COURT OF APPEAL OF CALIFORNIA

SECOND APPELLATE DISTRICT

APPELLEES’ BRIEF

CAROL AGATE

Counsel of Record

SANFORD K. SMITH

BLANCHE C. BERSCH

PAUL HOFFMAN

FRED OKRAND

ACLU Foundation of

Southern California

633 South Shatto Place

Los Angeles, CA 90005

(213) 487-1720

Attorneys for Appellees

Lawyers Brief Service / Legal Publishers / (213) 383-4457 / (714) 720-1510 \

\> )

QUESTIONS PRESENTED

Should the Court dismiss the appeal

because the record does not provide

an adequate basis upon which to

decide the questions posed by the

appellants?

Do the associational interests of a

large, public service organization

override the application of Cali-

fornia’s public accommodations sta-

tute?

Is the California public accommoda-

tions law unconstitutionally vague

or overbroad?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED .......24.2-. i

SABLE OF CONTENTS ... sc cvecee Si

TABLE OF AUTHORITIES ........ iv

JORSGOECTION «ec cece es 0 * 6 ee

STATEMENT OF THE CASE ......24.24. 4

PROCEEDINGS . . * * * * * * * * * el al 12

SUMMARY OF ARGUMENT ........-. 16

ARGUMENT . * * . * * * * * * * * al * 2 &

I. INTERNATIONAL'S ASSOCIATIONAL

INTERESTS DO NOT CVERRIDE CALI-

FORNIA'S PUBLIC ACCOMMODATIONS

LAW. . . . . . . . * . * 7 * * * 23

A. International's Association-

al Activities Are Not of an

Intimate Nature ....... 3l

1. International is not

GMBESe «© 6 c @ 8s 6S eee

2. International is not

Ot te ee |

3. International is not

secluded from others

in the community ..... 38

B. International's Associational

Activities Are Not of an Ex-

pressive Nature ....... 40

ii.

C. California Has a Compelling

Interest in Eliminating Sex

Discrimination. ....... 50

II. IF THE LOCAL CLUBS WERE COVERED

BY THE UNRUH ACT THEIR ASSOCIA-

TIONAL INTERESTS WOULD NOT BE

VIOLATED . . «© © © © © © © «© «© « 65

A. International's Vagueness

and Overbreadth Arguments

Were Not Timely Presented

to the California Courts. .. 76

B. The Unruh Act Is Not Un-

constitutionally Vague. ... 77

1. International has no

standing to raise its

vagueness argument... . 79

2. The term "arbitrary" has

a clear meaning under

the Act. . «- «© © «© © « « « 80

3. The term “business es-

tablishment" has a clear

meaning under the Act and

Sm @pee lew. .« « «© © «© co cc CBE

Cc. The Unruh Act Is Not Uncon-

stitutionally Overbroad. .. 89

IV. CERTIORARI SHOULD NOT BE

GRANTED . . . . . . . . . . . . . Si) e

CONCLUSION ..-«-+«-e«e 2 © © © «© «© L02

APPENDIX: SUPERIOR COURT ORDER AND

JUDGMENT, DATED SEPT. 16 1986

MINUTE ORDER IN CURRAN v.

MOUNT DIABLO COUNCIL,

DATED JULY 25, 2985

iii.

TABLE OF AUTHORITIES

PAGES

CASES

Alcorn v. Anbro Engineering, Inc.,

2 Cal. 3d 493, 468 P.2d 216, 86

Cas. Mper. GBB CA978) . « ew wc ec eo e BI

Black v. Cutter Laboratories, 351

U.S. 292 (1956) ie 6s 68-6 « « Se

Broadrick v. Oklahoma, 413 U.S. 601

95, 96, 97

Brown v. Loudon Golf & Country Club,

573 f. Supp. 399 (E.D. Va. 1983)

45, 71, 72

Cain v. French, 25 Cal. App. 499,

66: 7s Dee Caeeer @«@6¢6ee eee FE

Charleston Federal Saving & Loan

Association v. Alderson, 324 U.S.

182 (1985) . . . . . . . . . . . . 3

Clay v. Sun Insurance Office, Ltd.,

377 U.S. 179 (1964) Tee cine c &

Commonwealth Human Relations Commis-

sion v. Loyal Order of Moose,

Lodge No. 107, 448 Pa. 451, 294

A.2a 594, appeal dismissed 409

Vee BUGS CEevar csc sc ee eee ew ee

Connally v. General Construction Co.,

269 U.S. 365 (1926) ..«-s« ec «© « «

Cornelius v. Benevolent Protective

Order of the Elks, 382 F. Supp.

1182 (DBD. Comm. 1974) . «© «© «© «© e « 74

iv.

ital

Curran v. Mount Diablo Council of the

Boy Scouts of America, 147 Cal.

App. 3d 712, 195 Cal. Rptr. 325

(1983) . ~ «© « «© « « « 87, 88, 92,

Fernandez v. Wynn Oil Co., 653 F.2d

1273 (9th Cir. 1981) . «© «© « « « »

Frontiero v. Richardson, 411 U.S.

677 (1973) _ > . . . . . > > . >. >.

Godchaux Co. v. Estopinal, 251 U.S.

179 (1919) . >. . . . >. . > . om 76,

Grayned v. City of Rockford, 408

U.S. 104 (1972) . . . . . . . . .

Hanson v. Denckla, 357 U.S. 235

(1958) . >. . >. . >. 7: . . >. . > . o

Harry Gill Co. v. Superior Court,

238 Cal. App. 2d. 666, 48 Cal.

Rptr. 93 (1965) . «© «© «© «© © © « «

Hensley v. Eckerhart, 461 U.S. 424

(1983) . . . . . . . . . . . . .

Hishon v. King & Spalding, 467 U.S.

69 (1984) o © « « 29, 39, 40, 45,

Hoffman Estates v. Flipside, Hoffman

Estates, 455 U.S. 489 (1982) 79,

In re Cox, 3 Cal. 3d 205, 474 P.2da

992, 90 Cal. Rptr. 24 (1970)

83, 85,

Isbister v. Boys' Club of Santa Cruz,

707 P.2da 212,

40 Cal.

Cal. Rptr. 150 (1985)

3d 72,

219

20, 81, 85, 86, 88, 90, 91,

Koire v. Metro Car Wash, 40 Cal. 3d

24, 707 P.2d 195, 219 Cal. Rptr.

133 (1985)

Los Angeles Department of Water &

Power v. Manhart, 435 U.S. 702

(1978)

Marina Point v. Wolfson, 30 Cal. 3d

721, 640 P.2d 115, 180 Cal. Rptr.

496 (1982)

80,

Marsh v. Edwards Theatre Circuit,

Inc., 64 Cal. App. 3d 881, 134 Cal.

Rptr. 844 (1976)

81,

Mississippi University for Women v.

Hogan, 458 U.S. 718 (1982) ...

Moore v. City of East Cleveland, 431

U.S.

Moose Lodge, No. 107 v. Irvis, 407

163 (1972)

U.S.

494 (1977)

NAACP v. Alabama ex rel. Patterson,

357 U.S.

449 (1958)

National Organization for Women v.

Little League Baseball, 127 N.J.

Super. 522, 318 A.2d 33 (1974) ..

Nesmith v. YMCA, 367 F.2d 96 (4th

1968)

Cir.

New York v.

(1982)

Ferber,

45,

458 U.S.

67,

747

71,

Norwood v. Harrison, 415 U.S. 455

(1973) . . > . . . . . >. . . . + . 40

O'Connor v. Village Green Owners

Association, 33 Cal. 3d 790, 662

P.2d 427, 191 Cal. Rptr. 320

(1983) ..- «eee eee eevee 89

Order of Travelers v. Wolfe,

331 U.S. 586 (1947) . ++ ++ «+ « 80

Orloff v. Los Angeles Turf Club, 36

Cal. 2a 734, 227 P.2d 449 (1951) 81

Pearson v. Northwest Airlines, Inc.

309 F.2d 553 (2d Cir. 1962) eo « « 89

Pines v. Tomson, 160 Cal. App. 3d

370, 206 Cal. Rptr. 866 (1984). . 56

Pruneyard Shopping Center v. Robins,

447 U.S. 74 (1980) . . . . . . . . 56

Radio WOW v. Johnson, 326 U.S. 120

(1945) . . . . . . 7. . . . . . . . 76

Railway Mail Association v. Corsi,

326 U.S. 88 (1945) « + «© «© © © «© « 30

Richards v. United States, 369 U.S.

l, 15 (1962) > > . . . . . . . . 80

Richmond Newspapers, Inc. Vv.

Virginia, 448 U.S. 555 (1980) . . 2

Roberts v. United States Jaycees,

468 U.S. 609 (1984) «++ « passim

Ross v. Forest Lawn Memorial Park,

1.3 Cal. App. 3d 988, 203 Cal.

Rptr. 468 . . . . > . . . oe . . . 83

vii.

Rotary Club of Duarte v. Board of

Directors, 178 Cal. App. 3d

1035 (1986) ......2++-s+-. passim

Runyon v. McCrary, 427 U.S. 160

(1976) . . . . . . * . 7 . . . . . 30

Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d

1, 20 485 P.2d 529, 95 Cal. Rptr.

oe Guevae eee ee eee eee se COS

Sierra Club v. Morton, 405 U.S. 27

(1972) . . > . _ . . . . . . . . . 99

Smith v. Organization of Foster

Families, 431 U.S. 816 (1977) ° « 32

Stoumen v. Reilly, 37 Cal.2d 713,

234 P.2d 969 (1951) eeeeeee BS

Thornhill v. Alabama, 310 U.S. 88

(1939) > > . * . . = >. . >. . . . > 95

Tillman v. Wheaton-Haven Recreation

Association, 410 U.S. 431 (1973)

36, 38, 53, 88

United States v. Trustees of the

Fraternal Order of Eagles, 472

F. Supp. 1174 (E.D. Wis. 1979) 71, 72

United States v. Slidell Youth

Football Association, 387 F. Supp.

474 (E.D. La. 1974) bee edcee se

United States Jaycees v. McClure,

709 F.2d 1560 (8th Cir. 1983) ... 44

United States Jaycees v. McClure,

305 N.W.2d 764 (Minn. 1981) 41, 44, 64

viii.

United States Power Squacrons v.

State Human Rights Appeal Board,

59 N.Y¥.2d 401, 452 N.E.2d 1199,

465 N.Y.S.2d 8671 (1983) .. +. 36, 37

Village of Belle Terre v. Boraas,

416 U.S. 1 (1974) . «26 «© «© © © «© « 34

Watts v. Indiana, 338 U.S. 49 (1949) 64

Wengler v. Druggists Mutual Insurance

Co., 446 U.S. 142 (1980) ...++ +. 35

Wright v. Cork Club, 315 F. Supp.

1143 (S.D. Tex. 1970) . «+++ + 45

Wright v. Salisbury Club, Ltd.,

632 F.2d 309 (4th Cir. 1980) ... 71

Wynn v. Monterey Club, 111 Cal. App.

3a 789, 168 Cal. Rptr. 878 (1980) 83

STATUTES

26 U.S.C. §274(a) (2) ~. «© «© «© «© «© «© « 60

28 U.S.C. $1257(2) -. © «© «© © «© «© « 2 A?

28 U.S.C. §1257(3) . ~ «© «© «© © © © © & 3

42 U.S.C. §§2000e et seq. (Title VII

of the Civil Rights Act of 1964)

39, 49

California Civil Code §51 (The

Unruh Civil Rights Act) ... . passim

ix.

RULES

California Rules of Court,

Rule 29(b) (1) “a a a

SECONDARY AUTHORITIES

Avner & Bacharach, Let's Make a

N.Y. St. B.J., Oct. 1965, p. 12 .

’

Bartlette, Poulton, Callahan,

Somers, :

Back, Mgmt. Wkly., Nov. 8, 1982

Burns, The Exclusion of Women from

influential Men's Clubs: The

, 18 Harv. C.R.-C.L.

L. Rev. 321 (1983) ...

1 Gale, Encyclopedia of

Associations (2lst ed. 1987) ..

1 Gale, Encyclopedia of

Associations (15th ed. 1980) ..

Ginsburg, Women as Full Members of

ideal, 6 Hum. Rts. 1 (1975) ..

Jost, Judges Make Private Clubs a

, L.A. Dly. J.,

Sept. 22, 1986, Pp. 2, col. 4...

Schefrau,

(No Women Need Apply), Women &

Found./Corp. Philanthropy (1981)

Stern, Gressman & Shapiro,

Court Practice" (6th ed.

“Supreme

1986)

Willard, “Roberts v. United States

Jaycees and the Affirmatio., of

State Authority to Prohibit Sex

Discrimination in Public Accommo-

Activity, the Exercise of Expres-

," 38 Rutgers L.

of Discrimination

. Parra

Note, 33 U. Kan. L. Rev. 771 (1985)

xi.

No. 86-421

os Ga eer ee tatey ela

ee a ae

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1986

BOARD OF DIRECTORS OF ROTARY INTERNA-

TIONAL AND ROTARY DISTRICT 530,

Appellants,

Vv.

ROTARY CLUB OF DUARTE, MARY LOU ELLIOT

and ROSEMARY FREITAG.

APPELLEES’ BRIEF

JURISDICTION

This Court has no jurisdiction

over this appeal. The issue of the

validity of the California public accom-

modations law (the "Urruh Act") as being

repugnant to the Constitution of the

-l-

United States was not drawn into ques-

tion in the proceedings below, as re-

guired by 28 U.S.C. sec mn 1257(2).

The quotations on pages 3 and 4 of

appellants’ ("International") brief

demonstrate that they did not question

the validity of the Unruh Act in the

manner necessary to invoke this Court's

appellate jurisdiction under that sec-

tion. See, e.g. Richmond Newspapers,

Inc. v. Virginia, 448 U.S. 555, 562 n.4

(1980); Hanson vy. Denckla, 357 U.S. 235,

244 (1958); Stern, Gressman & Shapiro,

"Supreme Court Practice" 113 (6th ed.

1986).

International argued in the courts

below that its federal rights prevented

the application of the statute to it,

not that application of the statute to

its set of facts would render the stat-

ute void under federal law.

@2-

Charleston Federal Savings & Loan

Association v. Alderson, 324 U.S. 182

(1945), quoted by International [at 4-

5], supports appellees ("Duarte"), not

International. As Stern, Gressman &

Shapiro states, citing Alderson in

support,

“(Ij}t is necessary for appeal

purposes that the litigant make

specific and plain in the state

court his contention that the

application of the statute to

his particular circumstances

would make the statute void

under federal law. If he choos-

es not to phrase his claim in

that manner but argues instead

that his federal rights prevent

application of the state statute

to him, an adverse decision

amounts to a denial of his

assertion of federal rights

rather than a validation of the

state statute, and review can be

had in the Supreme Court only

via certiorari under §1257(3)."

At 113.

That is the case here.}

STATEMENT OF THE CASE

Rotary International is a public

service organization [Joint Appendix

("J.A.") 35) of 19,788 clubs? in 157

countries. [Appellants' brief ("app.

br.") 7) Im 1982 the total individual

membership for all of the clubs was

907,750. [[¢.}) The average size is

therefore 46 members, with a range from

fewer than 20 members to more than 900.

[Appendix to Jurisdictional Statement

(".S. App.") G-15}

lIf the Court agrees, as we believe

it should, that jurisdiction does not

lie, we urge that certiorari not be

granted. This matter is argued more

fully at point IV of this brief.

“Rotary has since grown to over

21,000 clubs. 1 Gale, Encyclopedia of

Associations 1053 (21st ed. 1987).

-4-

~a + te ell

ee ee ee ae -. ae «

A fundamental principle of Inter-

national is that the local clubs are

substantially autonomous. [J.A. 35)

Members join Rotary through the local

clubs [{J.A. 79] and each club drafts

its own by-laws, which include the

method it uses to enlarge its member-

ship. [J.A. 88; exh. A-3 to deposition

of Herbert A. Pigman, International's

general secretary, 1981 Manual of

Procedure ("Manual") 315 (see J.S. App.

G-6-8)}] Altnough International has

recommended procedures for admitting

new members (as detailed in its brief

at 7-8), it does not require the clubs

to abide by these requirements. [J.S.

App. G-18)

Individual clubs do not have any

authority over the admission to mem-

bership of new clubs in Rotary Inter-

national. The members of the clubs have

-5-

no authority over who may become

members of the other clubs. [J.A. 53)

While the admission of new clubs is

nominally within the authority of the

i7?7-man board of directors [Manual

247), it is International's general

secretary who actually decides which

ones are admitted. [J.A. 53]

When clubs become affiliated with

International, there are certain mini-

mal rules they are obliged to follow.

These rules include having only busi-

ness, crafts and professional men as

members [J.A. 35, 61], meeting once a

week [Manual 303}, and acceptina at

their meetings any Rotarians v. .t.ng

from other clubs. [J.A. 85] They are

also required to use International's

Classification system [J.A. 86-88;

Manual 239-40, 303-04}, which in theory

ieee a eet

limits membership to one person per

profession, business or craft classifi-

cation. [7.A. 61; Manual 240) Clubs

must charge new members an admission

fee of at least $20 and annual dues of

at least $25. [J.A. 51] Finally, both

International and the local clubs are

prohibited from taking any political

or religious positions. [J.A. 59;

Manual 309; S.J. App. G-47, 65)

International continually strives

for growth, both in the number of clubs

([J.A. 50-54; J.S. App. G-33; Manual

292} and within each individual club.

[J.A. 61-66, 70-73] International's

board of directors has a duty to ex-

teng Rotary throughout the world by the

organization of new clubs. [Manual 292)

Clubs are grouped into districts, with

a district governor in charge of each

one. [J.A. 48] District governors are

-J=-

expected to organize a Rotary Club in

every community. [Id.] An objective of

Rotary International is to include in

each local club a representative from

every business, profession and insti-

tution in the community, and the dis-

trict governors are also expected to

help each club fill these membership

objectives. [J.A. 36] There is no upper

limit to the size of a club. [J.A. 61-

62)

Rotary International's wide-rang-

ing activities include a secretariat of

300 persons with offices in six coun-

tries [J.A. 36] and 403 district gover-

nors worldwide. [J.S. App. G-14) Its

business operations run into millions

of dollars a year [J.A. 52, 56, 67, 74-

75; Manual 297; J.S. App. G-5) and it

maintains a busy publishing house,

“producing books, manuals, pamphlets,

le ee

and periodicals" in as many as 19

languages [J.A. 83} and numbering in

the hundreds. [J.S. App. G-5)

Public relations is used to

achieve growth. International and the

clubs publicize their activities. [J.A.

22-23, 41-42, 46, 49, 60, 64, 70-73,

95-96] Signs are hung by the road to

announce Rotary's presence in town.

[J.A. 44] The number of media represen-

tatives who may be members is unlimited

(J.A. 88], and local clubs are encour-

aged to have full representation of

the press on their rosters. [J.A. 40)

Clubs are asked to have non-Rotarians

at their meetings to inform the commu-

nity about Rotary [J.A. 25, 39, 66-67)

and are urged to provide speakers about

Rotary to other groups. [J.A. 40] They

are to inform the public what Rotarians

are doing in the community [J.A. 42)

and try to have their weekly meetings

reported in the local press. [J.A. 71}

Clubs have joint meetings with other

service clubs [J.A. 39] and community

organizations. [J.A. 42] The general

public is involved in Rotary activi-

ties. [J.A. 41-43, 77]

Internaticnal licenses commercial

firms to use its official emblem and

receive royalties for the use. [J.A.

67] International's magazine, "The

Rotarian" (exh. F to Pigman depo-

sition; J.S. App. G-43], solicits

commercial advertising [J.A. 74] and

is sold to libraries, hospitals,

schools and other reading rooms.

(Manual 319) An annual directory is

published "(fjor the convenience of

Rotarians who travel," listing hotels

owned or operated by Rotarians. [J.A.

75)

-10-

It is common practice for members

of local clubs to deduct their dues

from their income tax:s or to have the

dues paid by their companies. [J.-S.

App. C-25-26; R.T. 68-69; J.A. 34)

International encourages local clubs

to have members give “confidential

business advice and assistance to

Rotarians who may request such help"

and urges clubs to provide cl‘nics for

discussing economic probiems. [J.A.

40) It issues publications that illus-

trate business problems and their

solutions [J.A. 24] and holds meetings

at which Rotarians learn management

techniques that help increase their

business or professional skills. [J.A.

14]

Although International's rules

prohibit the admission of women into

local clubs, women do participate in

-ll-

Rotary activities. [J.A. 44-45, 68)

They attend meetings [J.A. 25, 39, 67),

and young women 14 to 28 years old may

join Interact or Rotaract, organiza-

tions sponsored by International.

(Manual 193. 198, 204) International

encourages the participation of women

relatives of Rotarians in "ladies

committees" and other associations of

women relatives of Rotarians [J.A. 44-

45, 68), and these women are authorized

to wear the Rotary lapel button. [J.A.

68)

PROCEEDINGS

In 1977, the Rotary Club of Duarte

("Duarte") admitted women into its

organization. Subsequently, Rotary

International and its District 530 or-

Gered Duarte to expel its women mem-

bers. When Duarte refused, Interna-

tional expelled the club itsel¢s. {[J.s.

App. C-7-8)

-12-

ral

~~. eee sd

After following International's

internal appeal procedures to no avail,

Duarte and its women members filed this

lawsuit charging International with

violating, inter alia, the Unruh Civil

Rights Act, California Civil Code

section 51. [J.S. App. C-8]

At the trial there were no disput-

ed facts relating to the issues raised

in this appeal.? The Los Angeles Supe-

rior Court held that International had

not violated the Act.‘ The California

3The only facts in dispute related

to an estoppe’ cause of action which was

not appealed.

4The findings of fact Internation-

al ascribes to the trial court [see,

e.g., app. br. 6, 9, 10, 1l, 12) were

legal conclusions based on uncontested

facts. An appellate court is not bound

by a trial court's "findings" when there

is no conflicting evidence presented.

Harry Gill Co. v. Superior Court, 238

Cal. App. 2d 666, 670, 707 P.2da 195, 48

Cal. Rptr. 93 (1965).

Court of Appeal reversed, 178 Cal.

App. 34 1035, 224 Cal. Rptr. 213 (1986)

[J.S. App. C), holding that the appli-

cation of International's male-only

rule to Duarte violates the Unruh Act.

The court of appeal later modi-

fied its opinion by revising its ear-

lier statement that "the membership

criteria set forth by International

- is selective... ." [Cited at

app. br. 9 and appearing at J.S. App.

C-35) In the modified opinion, that

quotation was deleted and replaced by

the statement: "While the classifica-

tion principle .. . might at first

blush appear to be selectiv2, Rotary's

own literature dispels this notion."5

[J.S. App. C-1)

International petitioned for

rehearing in the California Court of

Appeal. That petition was rejected, as

was International's petition for re-

‘iew in the California Supreme Court.

[J.S. App. D] On June 23, 1986, the

court of appeal granted a 30-day stay

of execution of its judgment. On July

18, 1986, the court denied a further

stay.

On July 25, 1986, (then) Justice

Rehnquist also denied a stay. Thereaf-

ter, on September 16, 1986, pursuant to

the judgment of the court of appeal

Sas a consequence, contrary to

International's brief, the court of

appeal did not say membership is

selective.

[J.S. App. C-40-41), the trial court

issued a judgment

“mandating the Board of Direc-

tors of Rotary International and

Rotary District 530 to reinstate

- « « Duarte's charter... and

permanently enjoin[ing them)

from enforcing or attempting to

enforce its male-only membership

restriction against Rotary Club

of Duarte.” See attached appen-

dix, pp- 1-2.

On November 3, 1986, this Court

postponed jurisdiction and accepted

the case for briefing and argument.

SUMMARY OF ARGUMENT

Large public service organizations

like Rotary International are subject

to the non-discrimination requirements

of California's public accommodations

law. Under that law, International may

not exclude women from the advantages

of membership in Rotary. This inter-

pretation of the Unruh Act has been

established by the California courts

and may not be challenged in this

Court.

In the courts below, Duarte did

not seek an order compelling any local

Rotary Club to admit women as members.

Instead, they sought to prevent Inter-

national from requiring it to exclude

women.©® The judgment below is limited

solely to the relief sought, leaving

open the issue of whether local Rotary

clubs in California must admit women.

International has submitted a

brief based on the assumption that the

lower court judgment applies the Unruh

SBecause this case was litigated in

this context the record is wholly inade-

quate to consider whether the First

Amendment would prevent the application

of the Unruh Act to local Rotary clubs.

For this reason, this Court should not

exercise its certiorari jurisdiction if

it finds, as it should, that no juris-

diction exists under 28 U.S.C. §1257(2).

See §IV, infra.

Act to all local Rotary clubs in Cali-

fornia, while ignoring the actual

nature of the judgment below. There-

fore, appellees have responded to this

hypothetical case in the event this

Court decides to consider that issue.

However, the real issue is whether

California may prevent International

from imposing its discriminatory man-

date on local Rotary clubs in Califor-

nia that choose to associate with

women.

Rotary International is not the

kind of organization that requires

constitutional protection from state

public accommodations laws. It is a

huge operation with a great many busi-

ness-like attributes. It is a signifi-

cant force in communities across the

United States and is a forum in which

members receive significant business

-18-

and professional advantages. Indeed,

the record in this case supports the

conclusion that men join Rotary in

large part to obtain these advantages,

while also joining in the public serv-

ice goals of Rotary.

International's male-only policy

is a vestige of the turn of this centu-

ry when Rotary was founded. There were

few women community or business leaders

in that era because of the stereotypi-

cal thinking about women and overt

discrimination against them’ which this

Court has decried in many opinions.

See, e.g., Frontiero v. Richardson, 411

U.S. 677 (1973). International seeks to

elevate its discriminatory practices

7Even International's Board of

Directors has recognized that the male-

only rule has no place in a modern

world. [Exh. F to Pigman deposition 50)

-l|9-

into an issue of fundamental constitu-

tional principles of freedom of associ-

ation. However, these claims trivialize

those principles.

The state interests embodied in

California's Unruh Act are indisputably

compelling, as this Court unequivocally

recognized in Roberts v. United States

Jaycees, 468 U.S. 609, 623 (1984). The

elimination of unjustified and discrim-

inatory barriers to the full and equal

participation of women in community

life is a major objective of government

at the local, state and national level.

The Unruh Act is intended to be as

sweeping an instrument to eradicate

such barriers as the United States

Constitution will allow. Isbister v.

Boys' Club of Santa Cruz, Inc., 40

Cal. 3d 72, 707 P.2d 212, 219 Cal.

Rptr. 150 (1985). In our consti-

ee Soe ee ae ee

ee ee ee

en ee ee

tutional scheme states retain the right

to pursue a vision of equality in com-

munity life beyond that which is re-

quired by the Fourteenth Amendment.

Pruneyard Shopping Center v. Robins,

447 U.S. 74, 81 (1980).

Moreover, California has pursued

its compelling interest in gender

equality in a content-neutral manner

which is least disruptive of the rights

of non-governmental organizations to

operate as they choose. International

has not been singled out for any reason

other than its attempt to mandate gen-

der discrimination in the Rotary Club

of Duarte. The simple command of the

Unruh Act is that the blanket exclusion

of women from participation in large

public service organizations cannot be

sustained without a justification

peculiar to the specific goals, struc-

-21-

ture and’ operation of the organi-

zation. In the case of Rotary, the

court of appeal found no such justifi-

cation. [J.S. App. C-37}

California's content-neutral in-

terest in gender equality must be

weighed against International's inter-

est in freedom of association. The

spectre presented by International, of

big government forcing the entry of

women into cloistered little Rotary

Clubs across the country, cannot be

squared with reality or the record in

this case.

There is no dispute that the

members of local Rotary clubs have

interests which trigger some degree of

First Amendment scrutiny. However,

International's desire to hold on to

its blanket male-only rule implicates

these interests only in the most atten-

-22-

Cee ee ee ee ee ee eee oe

vated manner. International itself, of

course, has no meaningful First Amend-

ment associational interests. It is an

organization of local clubs and thus

has no human members with such inter-

ests. Thus, International seeks to

assert the associational interests of

persons not involved in these proceed-

ings.

Whether this Court evaluates the

character of the asserted associational

interests from the standpoint of the

impersonal, theoretical interests In-

ternational possesses or the hypotheti-

cal local Rotary club members Interna-

tional seeks to represent, the charac-

ter of the asserted interests does not

qualify for constitutional protection.

At no level of Rotary is the

organization “intimate” in the sense

described by the line of cases relied

-23-

upon by this Court in Roberts. There

are no doubt groups of men or women in

our society who seek an oasis from

public life in the form of small pri-

vate clubs, but Rotary is not built

upon this premise. The whole concept of

Rotary is to create in each community

a growing cadre of community leaders

who are active and involved in communi-

ty and business life. Rotary clubs are

not the intensely personal, private

associations that provide the kind of

interpersonal relationships found in

family life. International's claim of

a right of associational intimacy has

as little merit as the similar claim by

the Jaycees, rejected in Roberts.

The fact that local Rotary clubs

appear to choose their members with

“selectivity” does not modify this con-

clusion. First, there is no evidence in

-24-

te, rm mg ~

the record that local Rotary clubs jin

fact choose their members in a selec-

tive manner. Each one chooses its menm-

bers in its own way. Even the form of

selectivity that International claims

is involved in this case is not the

same form of selectivity which suggests

the kind of intimate relationships

worthy of constitutional protection.

There is a wide range of relationships

which have a degree of intimacy. But

constitutional protection for intimacy

has been reserved for a small core of

human relationships, primarily those

resembling families. Roberts, 468 U.S.

at 619. International's proposed expan-

sion of this core would severely under-

mine the pursuit of equality in our

society and should be rejected.

Similarly, International's asser-

tion of expressive associational inter-

-25-

ests must be rejected. In this area,

this is a much easier case than Ro-

berts. The Jaycees take political

positions and engage in publi debate,

actions prohibited by International's

rules. Those rules do not allow the

kind of expressive activities to which

this Court has offered constitutional

protection over the years. The purpose

of Rotary is to perform public service

in @ non-political, non-ideological

manner. Even if these activities

contain a kernel of expression in a

First Amendment sense, the character

of these interests is clearly tan-

gential to the core concerns of Rotary.

Moreover, the judgment below per-

mitting the Rotary Club of Duarte to

admit women as members barely touches

upon, much less impairs, such expres-

sive activities. Women are already per-

-26-

mitted to participate in a wide range

of Rotary activities as non-members. It

is difficult to perceive what the

impact of the California Court of

Appeal's judgment on International's

expressive interests could possibly be.

International's brief before this Court

identifies no credible injury to such

interests.

The cases and principles relied

upon by International arise most often

in the context of this Court offering

essential constitutional protection for

the disadvantaged and minorities. Al-

though these are neutral principles

applicable to all groups, the applica-

tion of these constitutional principles

to International would shield the

assertion of power and privilege in a

manner that is unwarranted and de-

structive of legitimate state author-

-27-

ity in pursvit of the goal of equality

in our society.

International's vagueness and

overbreadth arguments similarly trivi-

alize those doctrines. The Unruh Act

has been in existence for decades and

there is an extensive body of case law

interpreting it. International cannot

seriously contend that organizations

in California have no notice of its

meaning. The Act is well within the

range of clarity of language and mean-

ing which raises no serious constitu-

tional vagueness question.

Nor is the Unruh Act substantially

overbroad. There is no evidence that

the California courts have ever inter-

preted the Act to reach constitution-

ally protected activity. The California

courts have carefully considered First

Amendment defenses raised by Urvuh Act

-28-

defendants and have insisted that the

Act be interpreted to satisfy constitu-

tional requirements. In these circum-

stances the "strong medicine” of the

overbreadth doctrine should not be

applied even if the Court finds, as it

should not, that the Act might have

some application to constitutionally

protected activity.

ARGUMENT

I. INTERNATIONAL'S ASSOCIATIONAL

INTERESTS DO NOT OVERRIDE CALIFOR-

NIA'S PUBLIC ACCOMMODATIONS LAW.

International's freedom of associ-

ation arguments have been answered by

this Court in Roberts v. United States

Jaycees, 468 U.S. 609 (1984), and Hish-

on v. King & Spalding, 467 U.S. 69

(1984). International fails to demon-

strate how the court of appeal's judg-

ment threatens anyone's associational

interests. This Court has held that

-29-

when associational rights are claimed

in defense of discrimination, the

challenge must fail unless such a

threat is shown. See, e.g., Runyon v.

McCrary, 427 U.S. 160, 176 (1976);

Railway Mail Association v. Corsi, 326

U.S. 88, 96 (1945).

In Roberts, a local chapter of the

Jaycees admitted women. Thereafter, the

national organization imposed sanc-

tions upon it. Jd. at 614. The United

States Jaycees argued that Minnesota's

attempt to impose its public accommoda-

tions act upon it violated its right to

freedom of association. Id. at 615.

This Court rejected that argument,

explaining that freedom of association

exists in two forms: intimate associa-

tion and expressive association. What-

ever freedom of association interests

were implicated by the application of

-30-

the Minnesota law to the Jaycees, they

did not outweigh the state's compelling

interest in protecting its women resi-

dents from discrimination.

A. International's Associa-

tional Activities Are Not

of an Intimate Nature.

Relationships that are entitled to

freedom of intimate association

“are distinguished by such

attributes as relative small-

ness, a hi —— of selec-

tivity in Cole ons to begin and

maintain the affiliation, and

seclusion from others in criti-

cal aspects of the relationship.

Roberts at 620.

These criteria were drawn from the

Court's cases which recognize a degree

of constitutional sanctuary for the

intimacy of family relationships and

other reletionships which are akin to

family relationships. See, e.g., Moore

v. City of East Cleveland, 43: U.S.

494, 503-04 (1977) (cohabitation with

-3l-

relatives); Smith v. Organization of

Foster Families, 431 U.S. 816 (1977)

(raising and educating children). The

intensity and “distinctly personal"

aspects of such relationships were

central to the scope of constitutional

protection afforded to then.

The Jaycees were “outside of the

category of relationships worthy of

this kind of constitutional protec-

tion.” Roberts at 620. International's

characteristics place it, too, outside

the scope of constitutional protection.

1. International is not

small.

With a total membership in 1982 of

907,750 Rotarians in 19,788 local

clubs, International is three times

larger than the Jaycees, which had

295,000 members in 7,400 chapters.

Roberts at 613.

* Geer? —

International has a staff of 300,

with offices in six countries. It oper-

ates a multi-million dollar business

and maintains a sizeable publishing

house.

A basic policy of International is

to have the greatest possible growth.

It has extension programs dedicated to

forming new clubs. District governors

are expected to try to organize a Ro-

tary Club in every community and to

fill as many of each club's classifica-

tions as possible. An organization this

large and growth-oriented cannot claim

the right to intimate association.

This Court has held that the size

of an organization is one relevant fac-

tor in weighing associational rights.

However, in certain situations, even

members of a small and intimate group

may have their associational rights

-33-

give way in the face of a more compel-

ling state interest.

Thus, in Village of Belle Terre v.

Boraas, 416 U.S. 1 (1974), six persons

were living together in a single house

large enough to accommodate them. A

village ordinance prohibited more than

two unrelated persons from living and

cooking together in a household, al-

though there was no such prohibition

for persons related by blood, adoption

or marriage. The Court sustained the

ordinance on the ground that the zoning

power of the city sufficiently overcame

the individual rights of the occupants.

If groups as small and intimate as

those in Belle Terre may have their

-34-

associational rights® overridden by a

zoning ordinance, then certainly so

large and impersonal an organization as

International may not prevail in the

face of a state's effort to eradicate

sex discrimination.

2. International is not

selective.

The mere fact that an organization

is "selective" in its membership does

not mean that a state may not prohibit

it from discriminating in that selec-

tion. The question is whether the

selectivity is substantially related to

the objectives sought to be achieved.

Wengler v. Druggists Mutual Insurance

Co., 446 U.S. 142, 150 (1980). Thus,

8tThe Court stated, at 7, that the

right of association was not involved in

the record before it. Even so, the

Court's ruling impinged on the intimate

relationship of the people involved who

wanted to live together.

-35-

aaa aaa

for example, an organization may be so

selective that it is open only to endo-

crinologists. That does not mean it can

therefore exclude black or female endo-

crinologists, especially if its goal is

to include a broad spectrum of those in

the profession.

The reason “selectivity” is a

factor in cases such as this is that

the concept helps in determining wheth-

er the organization is “truly pri-

vate."9 As the court explained in

United States Power Squadrons v. State

Human Rights Appeal Board, 59 N.Y.2d

401, 412, 452 N.E.2d 1199, 465 N.Y.S.24

871 (1983), important in determining

whether an organization is "private,"

*This phrase is from this Court's

opinion in Tillman v. Wheaton-Haven

Recreation Association, Inc., 410 U.S.

431, 439 (1973)

—— — Sag. cue, ee es be «

is that the "membership is determined

by subjective, not objective criteria."

International accepts new clubs on

purely objective criteria. The essen-

tial qualification for a club to join

International is that it be in a conm-

munity with at least 40 occupational

categories, and have as members at

least 20 men from different businesses

or professions. [Exh. C to Pigman

deposition, Extension Manual; J.S.

App. G-20-22) The decision to admit a

new club is effectively made by only

one person, the general secretary. The

members of International have no say in

that decision.

The admission of individual men-

bers is done by the local clubs, not by

International, which does no selecting

at all.

-37-

3. International is not se-

cluded from others in the

community.

A club is entitled to associa-

tional protection against a civil

rights statute only if it is "truly

private." Tillman v. Wheaton-Haven

International is simply not "truly

private” within the meaning of the

constitutional protection for intimacy.

International puts itself forward,

actively, into community affairs. Its

clubs are urged to promote the Rotary

name and activities at every opportuni-

ty, seek unlimited members from the

local press, have non-Rotarians attend

meetings and send speakers about Rota-

ry to outside groups.

At international or regional meet-

ings held in convention halls, Interna-

tional expects that the rental and

-38-

other expenses will be paid by “the

city government, or the chamber of

commerce, tourist association or a

similar group.” [J.A. 46] With Rotary

signs at the entrance to cities and

towns all over the world, Interna-

tional is dedicated to calling public

attention to itself. These are not

marks of a “private,” secluded, non-

business organization.

Even an organization as secluded

as a law firm partnership may not use

its associational rights to excuse its

compliance with an anti-discrimination

law. In Hishon v. King & Spaiding, 467

U.S. 69 (1984), the question was wheth-

er the federal law against employment

discrimination, Title VI: of the Civil

Rights Act of 1964 (42 U.S.C. *§2000e

et seq.), prohibited a law firm from

discriminating in its partnership deci-

-39-

sions. This Court held that law firms

are not beyond the reach of Title VII,

repeating its earlier holding that

"(ijnvidious private discrim-

ination may be characterized as

a form of exercising freedom of

association protected by the

First Amendment, but it has

never been accorded affirmative

constitutional protections."

Hishon at 78, quoting Nogwood v.

Harrison, 413 U.S. 455, 470

(1973).

B. t ational's Associational

ctiviti ot x-

pressive Nature.

This Court should not consider the

issue of expressive association since

it was not raised below. Furthermore,

International has not explained in what

expressive associational activities it

is engaged.

In Roberts, this Court explained

the freedom of expressive association

“a right to associate for the

purpose of engaging in those

-40-

activities protected by the

First Amendment--speech, assem-

bly, petition for the redress of

grievances, and the exercise of

religion." 468 U.S. at 618.

Thus freedom of association is a

derivative right, applicable when it

aids in the exercise of an express

First Amendment right. No express First

Amendment right is involved here.

Even when a First Amendment right

is involved, freedom of association

does not necessarily override a public

accommodations law. In Roberts, this

Court held that the Jaycees' right to

expressive association did not override

the Minnesota law. The Jaycees, howev-

er, does engage in public expression.

It has taken stands on the draft,

school funding, the Vietnam War and

pornography, among other issues.

United States Jaycees v. McClure, 709

F.2d 1560 (8th Cir. 1983).

As for Rotary International, there

is no possible issue of infringement on

its exercise of free speech or reli-

gion, since its policy specifically

prohibits it or its clubs from taking

any political or religious positions.

(Manual 161) Thus this case raises no

issue of infringement of expressive

rights.

In its struggle to distinguish

itself from the Jaycees, International

notes that women were invited to par-

ticipate in the Jaycees' activities,

while on the other hand, Rotary has no

official women's affiliates. (App. br.

20)

However, women do participate in

Rotary activities. There are organiza-

tions of women auxiliary to local

clubs. To be sure, "formal official,

legal recognition" [J.A. 68] is not

-42-

given to these organizations, but

their presence and assistance is en-

couraged and commended by Internation-

al's board. Members of these committees

are authorized to wear the Rotary lapel

button. There is also no ban on women

attending meetings or being speakers.

There are also women and girls in

International's youth and young adult

Clubs, called Interact (for 14 to 18

year-olds) and Rotaract (18 to 28).

Whatever might be the extent of women's

participation in Rotary, in the Jay-

cees, as associate members, they

accounted for only 2% of the

membership. Roberts at 613.1°

10wnile International tries to show

how dissimilar it is from the Jaycees,

it also argues how much like Kiwanis it

is. [App. br. 21] That is because of

this Court's passing reference to "the

Kiwanis Club" in Roberts. At 630. That

reference was based on an illustrative

-43-

International's argument that

Duarte bears the burden of justifying

the application of the Unruh Act to In-

ternational [app. br. 46] is not well

remark by the Minnesota Supreme Court as

to "the Kiwanis International Organiza-

tion." United States Jaycees v. McClure,

305 N.W.2da 764, 771 (Minn. 1981).

Neither in that court, in the federal

courts, 534 F. Supp. at 773 and 709 F.

2d at 1577, nor in this Court was there

sufficient evidence upon which to judge

the real nature of Kiwanis. The evidence

consisted merely of Kiwanis Internation-

al's constitution and by-laws, a roster

of the Minneapolis club members, and a

thumbnail sketch of the International

from 1 Gale, Encyclopedia of Associa-

tions (15th ed. 1980) [Roberts, appel-

lants' brief 27] The most that can be

said, as this Court did, is that there

exists "a formal procedure for choosing

members on the basis of specific and

selective criteria." There is no evi-

dence as to whether the procedure is

actually followed. [See cases cited

infra.]) Nor is there evidence of whether

there are any of the other considera-

tions mentioned by this Court in

Roberts, at 620, which would guide a

court in deciding which rights--the

anti-discrimination or the associa-

tional--should prevail.

-44-

taken. The one who discriminates bears

the burden of proving the justification

for the discrimination. As this Court

said in Roberts, "The Jaycees have

failed to demonstrate that the Act im-

poses any serious burdens on the male

members' freedom of expressive associa-

tion.” 468 U.S. at 626. Similarly, in

Hishon, "(The law firm] has not shown

how its ability to fulfill [the duties

of a lawyer] would be inhibited by a

requirement that it consider petitioner

for partnership on her merits.” 467 U.S.

at 626. This confirmed what lower courts

had held. See, @.G-r Nesmith Vv. YMCA,

397 F.2d 96 (4th Cir. 1968); Brown v.

Loudon Golf & Country Club, 573 F. Supp.

399, 402 (E.D. Va. 1983)

International asserts that Rotary

would be severely injured if women were

admitted [app. br. 26, 34], but it does

-45-

not explain why or how Rotary would be

injured. There seems to be a silent

assumption that women are so different

from men that their very presence will

contaminate the organization. It is just

such assumptions that this Court refused

to accept in Roberts. See, e.g., 468

U.S. at 627-28.

The admission of women would not

damage International. The very purpose

of the Jaycees was the development of

Opportunities for young men. 468 U.S. at

612-13. Yet this Court held that the

presence of women would not interfere

with that purpose. Id. at 627. The

object of Rotary International is public

service. The presence of women obviously

would not interfere with that purpose.

International points to NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449,

451 (1958), to argue that it is entitled

-46-

to protection for its objectives. [App.

br. 27) Of course it is. Again, its

objective is public service and the

presence of women will not interfere.

Even its secondary objective of fellow-

ship will not be adversely affected by

the presence of women, especially since

women are already present in any case.

(See discussion at IB.)

That point was made in Mississippi

University for Women v. Hogan, 458 U.S.

718 (1982). Men were not allowed to

enroll for credit in the nursing school

of a university founded for the purpose

of "the moral and intellectual advance-

ment of the girls of the state." At 720.

They were, however, allowed to audit

Classes. This Court rejected the univer-

sity's contention that its gender-based

discrimination was substantially and

directly related to its objective,

Saying: "To the contrary, MUW's policy

of permitting men to attend classes as

auditors fatally undermines its claim

that women, at least those in the School

of Nursing, are adversely affected by

the presence of men." At 730.

The real reason for International's

exclusion of women seems to be that the

organization started at a time when few

women were in business. As Mr. Pigman

explained, it became "part of the tradi-

tion and practice." [J.s. App. G-51}

That is a flimsy basis upon which to

deny women today the benefits of the

public accommodations law.

The only concrete injury Interna-

tional suggests is the potential harm to

its worldwide operation, but even then

it does not say how its operation would

be harmed. In some of the countries that

have Rotary Clubs, women members might

-48-

oe ee ee es P<

a Tee oe

not be accepted. [App. br. ll, 16, 34)

But International fails to explain how,

if some California clubs admit women,

other countries would be impacted. All

the admission of women means is that

visiting foreigners might find women at

Rotary meetings. But they already do,

since women attend as guests.

Attitudes in other cultures were at

issue in Fernandez v. Wynn Oil Co., 653

F.2d 1273 (9th Cir. 1981). The Court re-

jected the argument that a company could

refuse to hire a woman as director of

international operations because South

American customers would not do business

with a woman. Even though "the United

States cannot impose standards of non-

discriminatory conduct on other

nations," no foreign nation can compel

the non-enforcement of Title VII of the

Civil Rights Act of 1964. Id. at 1277.

-49-

International is proud of its abil-

ity to operate worldwide because of its

concern for diverse cultures. [App. br.

11} California residents are entitled

to similar consideration.

C. California Has a Compelling

interest in Eliminating Sex

Discrimination.

As this Court emphasized in Ro-

berts, "(a)jssuring women equal access

to . . . goods, privileges, and advan-

tages clearly furthers compelling state

interests." 468 U.S. at 626. The types

of "goods" (e.g., commercial programs

and benefits, and leadership skills),

"privileges" and "advantages" (e.g.,

business contacts) offered by partici-

pation in the Jaycees are also provided

by participation in Rotary.

International attempts to distin-

guish itself by stating that the Minne-

sota court relied on the fact that the

-50-

Jaycees "sells goods and extends privi-

leges in exchange for annual membership

dues."11 (App. br. 15, 28, 29] But, in

fact, International does the same

thing. As the Conference of Private

Organizations said in its amicus curiae

brief in Roberts,

"The U.S. Jaycees is far from

unique in having a large nation-

wide membership, which it —

ously seeks to expand...

The membership recruiting of

the U.S. Jaycees is not unlike

the practices or [sic] other re-

stricted-class membership asso-

ciations, such as national

fraternal and service organiza-

tions." [At 11-12)

International is one of those service

organizations. It, too, "sells" its

memberships through its constant em-

phasis on growth and publicity.

lithis Court in Roberts, while

noting that comment, at 616, does not

rely on it.

-5l-

International argues that Roberts

does not govern because of the differ-

ences between the Jaycees and Rotary.

In fact, the two organizations are

remarkably similar. Both are non-profit

membership corporations with education-

al and charitable purposes. Roberts at

612-13. [J.A. 35] Like the Jaycees,

Rotarians join through local chapters,

pay an initiation fee and annual dues,

are entitled to participate in local,

district (instead of state), regional

and national activities. Rotary Inter-

national, like the Jaycees, strives

for membership growth and keeps a high

public profile. The national headquar-

ters of both organizations employs a

staff to develop materials for local

chapters to enhance individual develop-

ment, community development and men-

bers' management skills. Both have

-52-

ee ee ne en |

various products available to members.

See Roberts at 613-14.

International argues that "Rotary

clubs are not engaged in the commercial

distribution of publicly available

goods and services." [App. br. 26] In

its brief in Roberts it said "The Jay-

cees do not exist for the purpose of

providing goods and services to the

general public." [At 17) The point

was not significant in Roberts and

should not be significant here.

In fact, many decisions have made

it clear that in order for an organiza-

tion to be subject to public accommoda-

tions statutes it is not necessary that

it be engaged in the commercial distri-

bution of publicly available goods and

services. See, e.g., Tillman v.

Wheaton-Haven Recreation Association,

410 U.S. 431) (1973) (a community swin-

-53-

ming pool); United States v. Slidell

Youth Football Association, 387 F.

Supp. 474 (E.D. La. 1974); National

Organization for Women v. Little Leaque

Baseball, 127 N.J. Super. 522, 318 A.2d

33 (1974); United States Power Squad-

ns v

Board, 59 N.Y¥.2d 401, 452 N.E.2d 1199,

465 N.Y.S.2d 871 (1981) (boating). The

question is not whether an organization

is commercial, but whether it is of

that private nature which will enable

it to overcome a state's compelling

interest in protecting against sex

discrimination.

States have broad authority to

pursue their own vision of equality and

Civil liberties, subject only to a

showing that countervailing constitu-

tional interests are seriously threat-

ened. Pruneyard Shopping Center v.

Robins, 447 U.S. 74 (1980) (California

may grant broader rights to engage in

First Amendment activity in shopping

centers than required by the First

Amendment).

The Unruh Act effectuates Califor-

nia's century-old public policy of en-

suring equal access for all members of

the community to important institutions

in public life. California courts have

consistently underscored the importance

of eradicating gender discrimination.

See Koire v. Metro Car Wash, 40 Cal. 3d

24, 34, 707 P.2d 195, 219 Cal. Rptr.

133 (1985) ("men and women alike suffer

from the stereotypes perpetrated by

sex-based differential treatment") ;

Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d

1, 20 485 P.2d 529, 95 Cal. Rptr. 329

(1971) (legislative classifications

based on gender are suspect for pur-

-55-

poses of equal protection analysis) ;

Pines v. Tomson, 160 Cal. App. 3d 370,

392, 206 Cal. Rptr. 866 (1984) ("Cali-

fornia's interest in eradicating dis-

crimination on the basis of ... sex

is unquestionably 'compelling,'" citing

Roberts, 468 U.S. at 623). Similar

interests underlie the Unruh Act's

prohibition against the exclusion of

women from all but "truly private"

groups.

The Unrwh Act has implemented the

state's policy of gender equality in

the manner least disruptive of the

internal operations of International.

It does not require that all women or

any given woman be admitted to Rotary,

but it prohibits the blanket exclusion

of women from participation.

According to this Court in Roberts:

-56-

"Minnesota's compelling interest

in eradicating discrimination

against its female citizens jus-

tifies the impact that applica-

tion of the statute to the

Jaycees may have on the male

members' associational free-

doms." 468 U.S. at 623.

The rationale for the state's

compelling interest is explained in

Roberts:

"By prohibiting gender dis-

crimination in places of public

accommodation, the Minnesota

Act protects the State's citi-

zenry from a number of serious

social and personal harms. [Dis-

crimination] both deprives per-

sons of their individual dignity

and denies society the benefits

of wide participation in politi-

cal, economic, and cultural

life.

"That stigmatizing injury, and

the denial of equal opportuni-

ties that accompanies it, is

surely felt as strongly by per-

sons suffering discrimination on

the basis of their sex as by

those treated differently

because of their race." Roberts

at 625.

-57-

One of the state's interests is in

seeing that women do not suffer from the

loss of business opportunities. People

join business and professional associa-

tions to advance their careers.12 So,

too, they join Rotary to advance their

careers. International claims this is

not so. That claim does not stand up to

scrutiny.

12tnternational criticizes the

court of appeal for not having referred

to the women plaintiffs' acknowledgment

"that they did not feel that they had

been impeded in their pursuit of their

business and/or professional careers or

financially damaged by any actions of

Rotary International." [App. br. 30]

The court of appeal properly ignored the

point because it was irrelevant. The

women plaintiffs were not impeded in the

pursuit of their careers since they were

admitted to the Duarte club. As for

their not having joined for the express

purpose of promoting their careers, that

does not mean it was not an unstated

purpose, as it undoubtedly is for most

Rotarians.

-58-

The evidence substantiates that

Rotary membership is an important busi-

ness advantage. Club members must con-

sider it to be, since they deduct their

dues as business expenses from their

income taxes or have the dues paid by

their businesses. Even International's

witness, a former cemeterian, had his

dues paid by his company when he was

employed. A former treasurer of the

Bakersfield Rotary Club testified that

95-96% of the local members' dues were

paid by their companies.

The IRS has allowed such deduc-

tions [J.S. App. C-25], thereby recog-

nizing the primary business nature of

the organization. The Internal Revenue

Code provides that social club dues are

deductible if the club is used primarily

for business and the use is directly

related to the conduct of the business.

-59-

26 U.S.C. §274(a)(2). Either many Rotar-

ians are breaking the law or the claim

that membership is not for business

purposes is a hypocritical one.

International's general secretary

insists that community service is the

only reason for the Rotary Clubs’ exis-

tence. [J.S. App. G-33-34] If that were

true, it is unclear why membership

should be limited to business and pro-

fessional people. Surely a laborer can

work in charitable activities. Rotary,

by limiting membership to business and

professional leaders, provides an op-

portunity for its members to make the

right contacts.

The limit of one member per occupa-

tion serves to protect the classifica-

tion holder's right to maintain his

monopoly over beneficial contacts with

members in other businesses. The excep-

-60-

tions for Rotarians who come from other

clubs or a second person in each classi-

fication highlight the rationale for the

rule. Those people may join, but only if

the club's holder of the classification

approves. [J.A. 86]

Even International acknowledges

that Rotary provides important con-

tacts. The Rotary Vocational Service

handbook headlines: "In modern times, it

is only by the power of association that

men of any calling exercise their influ-

ence in the community." [Exh. B to

Pigman deposition, vol. 3, Vocational

Service 33 (see J.S. App. G-9-11)] That

heading is followed by a discussion of

ethical business practices:

"Daily relations with business

or professional associates can

provide every Rotarian with

opportunities to demonstrate

personally to his customers,

clients, suppliers, competi-

tors, or colleagues that the

-6l-

ideal of Service can help form a

truly solid basis upon which to

achieve business and profes-

sional success." [J.A. 92]

Another way of stating it is in the

well-known axiom of the business world:

"who you know is at least as important

as what you know." Burns, The Exclusion

of Women from Influential Men's Clubs:

The Inner Sanctum and the Myth of Full

Equality, 18 Harv. C.R.C.L. L. Rev. 321,

322 (1983) .23

Although many of the business bene-

fits of Rotary are through personal con-

tacts, there is direct help as well.

Local clubs are expected to establish

13 See also, Willard, "Roberts v.

United States Jaycees and the Affirma-

tion of State Authority to Prohibit Sex

Discrimination in Public Accommodations:

Distinguishing 'Private' Activity, the

Exercise of Expressive Association and

the Practice of Discrimination," 38 Rut-

gers L. Rev. 341, 374-75 (1986); Note,

33 U. Kan. L. Rev. 771, 787 (1985), and

authorities cited.

-62-

committees of members in different clas-

sifications who will give "confidential

business advice and assistance to Rotar-

ians who may request such help." [J.A.

40} International encourages clubs to

provide clinics for discussing economic

problems. Through Rotary publications

and vocational programs members study

business problems and their solutions.

Another service International

provides for its members is business

relations conferences. At these confer-

ences

"(tjhe Rotarian learns man-

agement techniques that help

improve his own business or

professional skills. He re-

ceives the inspiration of dis-

cussing business problems with

experts in his own or related

fields. And he enjoys the fel-

lowship of sharing ideas with

fellow Rotarians." [J.A. 14]

There are obviously business advan-

tages to Rotary membership and Califor-

-63-

nia women are being injured by their

exclusion.14 This Court should look to

the reality, not to International's

denials of its business-relatedness. As

was said in Watts v. Indiana, 338 U.S.

49, 52 (1949), “there comes a point

where this Court should not be ignorant

as judges of what we know as men."

In United ates cees v. Mc-

Clure, 305 N.W.2d 764 (Minn. 1981), the

Minnesota Supreme Court found that

membership in community-wide, service-

oriented, business-related organiza-

l4There is extensive literature

showing the political, economic and

cultural harm to women by exclusion from

organizations such as Rotary. See, e.g.,

"Avner & Bacharach, Let's Make a Deal--

When Private Means Business," N.Y. St.

B.J., Oct. 1985, p. 12; Bartlette,

Poulton, Callahan, Somers, "What's

Holding Women Back," Mgmt. Wkly., Nov.

8, 1982; Ginsburg, "Women as Full

Members of the Club: An Evolving

American Ideal," 6 Hum. Rts. 1

-64-

tions provides enhanced leadership

experience and an advantage in making

business contacts. Membership in Rotary

International does the same. Or as

Rotary states it in its official motto:

"He Profits Most Who Serves Best."

[J.A. 69]

II. IF THE LOCAL CLUBS WERE COVERED BY

THE UNRUH ACT THEIR ASSOCIATIONAL

INTERESTS WOULD NOT BE VIOLATED.

Whether the local clubs are covered

by the Unruh Act is not at issue in this

case. However, out of an abundance of

caution, we discuss the matter. Were the

judgment viewed as requiring local clubs

to admit women, such a judgment would

(1977); Jost, "Judges Make Private

Clubs a Public Wrong," L.A. Dly. J.,

Sept. 22, 1986, p. 2, col. 4; Schefrau,

"Welcome to the Club (No Women Need

Apply) ," Women & Found./Corp.

Philanthropy (1981).

=£ $=

not violate the clubs’ constitution-

ally-protected associational rights.

"A fundamental principle underly-

ing the administration of Rotary Inter-

national is the substantial autonomy of

the member Rotary Clubs." [J.A. 35]

However, International does suggest

guidelines, which provide a limited

basis upon which to consider the asso-

ciational rights of the clubs, under

this Court's holding in Roberts.

In Roberts, at 620, this Court

mentioned a number of factors--"size,

purpose, policies, selectivity, conge-

niality"--which aid in determining

whether associational interests can

preclude application of anti-discrimi-

nation laws. Just as those factors did

not lead to the conclusion that the

Jaycees clubs may discriminate, so too,

Rotary clubs may not discriminate.

-66-

International requires that there

be at least 20 men in a community

willing to be a club. Moreover, the

club must be in an area where there are

at least 40 classifications, which

means at least 40 prospective members.

There is no maximum number who can be

in the club, since continual growth is

an object of every local club. The goal

is to have every business, profession

and institution in the community repre-

sented. Yet, "[mjost private clubs have

limited membership." Nesmith v. YMCA,

397 F.2d 96, 102 (4th Cir. 1968).

Some clubs have over 900 members,

more tnan twice the size of the clubs

in Roberts. 468 U.S. at 621. The aver-

age club size is 46 as opposed to the

Jaycees' average of 40. 468 U.S. at

613. There is a high turnover rate,

between 10 and 20% a year. [R.T. 65]

-67-

The clubs that remain at or drop

below their founding number of 20 are

unsuccessful, rather than "intimate"

or “private.”

There is no evidence that the

Clubs are selective. International

argues that they are, detailing the

procedure for admitting members into

local clubs as outlined in the recom-

mended club by-laws. (App. br. 7-8] It

then concludes that the "foregoing

undisputed facts led the trial court

to find that Rotary Clubs are highly

selective in their membership." [App.

br. 9] But the procedures International

describes are nothing more than recom-

mendations; the local clubs are not

required to follow them. In fact,

International's general secretary

testified that "[tjhe method of elec-

-68-

ting a member is in the province of the

local Rotary Club." [J.S. App. G-18]

International's statement of facts

makes it sound as though all clubs use

the described election process. For ex-

ample, International claims that

"‘mjembership in Rotary is by invita-

tion only." [App. br. 7] It cites the

Pigman deposition [J.S. App. G-49) and

Focus on Rotary [Exh. B to Pigman

deposition, vol. 1] to support its

Claim. But these statements are contra-

dicted by the Manual of Procedure,

which Mr. Pigman, the general secre-

tary of Rotary International, said is

“an authoritative statement of Rotary

practices and principles." [(J.S. App.

G-7] According to the Manual, local

clubs are allowed to adopt their own

by-laws. [Manual 315; see also J.A. 88)

Whether they adopt the recommended

-69-

method and how they arrive at the so-

called one-person-per-business-or-

profession rule is for them to de-

cide.15 [J.S. App. G-18)

Even if these procedures were

requirements rather than recommenda-

tions, they would not necessarily

qualify the local clubs for an exemp-

tion from the public accommodations

law. Decisions under the federal public

accommodations law, involving blacks,

have held that even clubs with formal

membership requirements are subject to

15International's system does not

limit clubs to one member per classifi-

cation. There can be sub-classifica-

tions, such as criminal lawyer, corpo-

rate lawyer, probate lawyer, etc. [J.A.

87} And while there may be no more than

two active members in each classifica-

tion [J.A. 86], there may be an un-

limited number of senior active, past

service, press, clergy and diplomatic

corps members. [J.A. 39; Manual 249-50)

Thus, the so-called one-man classifica-

tion system is not that at all.

-70-

the law. See Wright v. Salisbury Club,

Ltd., 632 F.2d 309 (4th Cir. 1980) (two-

member sponsorship, membership commit-

tee approval, board approval); Nesmith

Vv. YMCA, 397 F.2d 96 (4th Cir. 1968)

(substantial annual dues, membership

committee, good moral character); Brown

vy. Loudoun Golf & Country Club, Inc.,

573 F. Supp. 399 (E.D. Va. 1983) (good

moral character, two-member sponsor-

ship, membership ceiling, substantial

initiation fee, board approval); Uni-

ted States v. Trustees of the Fraternal

Order of Eagles, 472 F. Supp. 1174

(E.D. Wis. 1979) (two-member sponsor-

ship, investigating committee, board

approval, member blackball, good moral

character, belief in God).

The courts in these cases consid-

ered the significant factor to be not

what the written procedures are, but

-7l-

whether they are actually used. Brown

at 403; Eagles at 1175. The burden is

on the club to show that its written

procedures actually result in member-

ship selectivity. Nesmith at 101; Brown

at 403; Eagles at 1176. International

has provided no evidence as to how the

clubs actually select members.

International's purpose is that

the membership be “inclusive, not ex-

Clusive." [J.A. 84] That is a "public,"

not a “private” characteristic.

International speaks of the local

Rotary Club as "a body of men who are

knit together in bonds of personal

friendship and service." (App. br. 10)

But any intimacy this suggests is

impossible because of International's

rule that all clubs must welcome visit-

ing Rotarians, strangers whom they have

never met. [J.A. 85) Once a club has

-72-

accepted a member, International and

every other local club must accept hin.

Local clubs are not secluded. The

formation of a new club is announced

in the media. All local clubs are ex-

pected to publicize their activities.

They send speakers out to community

groups to talk about Rotary and they

proclaim their presence to the world by

placing signs at the entrances of their

cities. Further, clubs are encouraged

to obtain full representation from all

the local press in the community.?}®

There is nothing private nor se-

cluded about Rotary club meetings. They

are supposed to have in attendance

employees, competitors, customers and

16This rule conflicts with the rule

prohibiting the admission of women, but

International apparently does not con-

template there being women reporters.

salesmen of the members, students and

others. Joint meetings are held with

other service clubs and community

services organizations. Appropriate

measures are supposed to be taken to

have the weekly meetings reported in

the press. The emphasis is on maintain-

ing a high profile.

Under International's own rules,

the clubs are not “secluded.” "Every

Rotary club must have its windows and

doors open to the whole world.” [J.A.

85)

Strangely, International cites

Cornelius v. Benevolent Protective

Order of the Elks, 382 F. Supp. 1182

(D. Conn. 1974) for guidance on the

interpretation of a “private club"

exemption. [App. br. 25) But the fac-

tors in Cornelius lead to the conclu-

sion that Rotary clubs are not private.

"To have their privacy protect-

ed, clubs must function as

extensions of members' homes

and not as extensions of their

businesses." 382 F. Supp. at

1204.

Rotary clubs are extensions of their

members' businesses, not their

homes. 17

III. THE UNRUH ACT IS NEITHER VAGUE NOR

OVERBROAD.

International argues that the Unruh

Act is unconstitutionally vague and

overbroad. Not only is neither true, but

this Court should not consider the

argument since it was not timely raised.

17Moose Lodge, No. 107 v. Irvis,

407 U.S. 163 (1972), also, does not

assist International. That case was

decided on a state action rationale, not

on associational grounds. Further, when

the very same Moose Lodge was challenged

under Pennsylvania's public accommoda-

tions act, it was held to be covered.

Commonwealth Human Relations Commission

v. Loyal Order of Moose, Lodge No. 107,

448 Pa. 451, 294 A.2d 594 (1972), appeal

dismissed for want of a substantial

federal question. 409 U.S. 1052 (1972).

-75-

A. International's Vaqueness

Were Not Timely Presented

to the California Courts.

International did not raise the

issues of vagueness or overbreadth in

its briefs in the trial court [C.T. 218,

294] nor in the court of appeal.

In its Petition for Rehearing be-

fore the court of appeal and in its

Petition for Review before the Califor-

nia Supreme Court, both of which were

denied without opinion, International

made an argument based on "uncertainty."

But this was too late, both under Cali-

fornia law, Cain v. French, 25 Cal. App.

499, 502, 144 P. 302 (1914); Rule 29(b)

(1), California Rules of Court, and in

this Court. See Radio WOW v. Johnson,

326 U.S. 120, 128 (1945); Godchaux Co.

v. Est , 251 U.S. 179, 181 (1919).

This Court ought not hear a matter that

-76-

was not properly presented to the courts

below. [(Id.]

In its brief, at 36-37, Interna-

tional sets forth a paragraph from its

brief in the court of appeal and claims

that it raised the vagueness and over-

breadth issue before that court. That

single paragraph was in connection with

International's argument that the Unruh

Act could be applied only to an organi-

zation “where such memberships comprise

a vehicle for public sale of goods,

services or commercial advantages."

[International's brief before the court

of appeal, p. 23] That was not an ade-

quate presentation of the point to the

lower court for decision.

B. The Unruh Act Is Not Un-

constitutionally Vague.

In Roberts this Court noted that

the

-7J=

"yoid for vagueness doctrine re-

flects the principle that ‘a

statute which either forbids or

requires the doing of an act in

terms so vague that [persons] of

common intelligence must neces-

sarily guess at its meaning and

differ as to its application,

violates the first essential of

due process of law.'" 468 U.S.

at 629, citing Connally v.

General Construction Co., 269

U.S. 385, 391 (1926).