Petition for Writ of Certiorari — City of New Orleans v. Louisiana Debating & Literary Ass'n

}L ED

NO. 9.41.80 5 APR 26 19

Oe ee ee eee 1 ae gece TF Ine oe

In the

Supreme Court of the United States

OCTOBER TERM, 1994

THE CITY OF NEW ORLEANS, THE HUMAN

RELATIONS COMMISSION AND

EARL D. JACKSON, SR., IN HIS

OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR

OF THE HUMAN RELATIONS COMMISSION

Petitioner

VERSUS

LOUISIANA DEBATING AND LITERARY

ASSOCIATION, THE STRATFORD CLUB, THE

BOSTON CLUB OF NEW ORLEANS

AND THE PICKWICK CLUB

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

VOLUME I

ANNABELLE H. WALKER

DEPUTY CITY ATTORNEY

LOUISIANA BAR NO. 13166

1300 Perdido Street

City Hall — Room 5E01

New Orleans, LA 70112

(504) 565-6200

# AVIS MARIE RUSSELL

CITY ATTORNEY

LOUISIANA BAR NO. 11546

% COUNSEL OF RECORD FOR

PETITIONERS

i

QUESTIONS PRESENTED FOR REVIEW

Whether the procedures established by the City of

New Orleans pursuant to an anti-discrimination ordinance,

modeled upon that upheld in a previous decision of this

Court, for investigating complaints of discrimination and

for determining the validity of claims of constitutional

private club exemption from application of the ordinance,

are unduly intrusive, so as to violate the First Amendment

rights of a private nonexpressive association.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......

LIST OF AUTHORITIES ie es oe ee

OPINIONS ISSUED BY LOWER COURTS .......

STATEMENT OF GROUNDS FOR

Ge x 046 wh oho he eso bie eeeerecwes

CONSTITUTIONAL PROVISIONS, STATUTES

i GRU os nena vy seanvewseenes cones

STATEMENT OF THE CASE AND BASIS

OF ORIGINAL JURISDICTION................

STU 6 iv 0 05 0 ows oe hake wenn eee

NUL <0 k5 50 Hon sg ede eka ceeeeae

APPENDIX:

Appendix

Item 1 - Opinion of the U.S. Court of Appeals

for the Fifth Circuit..............

i

LIST OF AUTHORITIES

CASES Page

Board of Directors of Rotary Int'l v. Rotary Club,

Nc daw i ee venecvecess' 8,15

Dart v. Brown, 717 Fed. 2d 149i (5th Cir. 1983),

cert. den., 469 U.S. 825 (1984) ........... Peas 8

Harrison v. NAACP, 300 U.S. 167, 178 (1959) .......12

Hishon v. King & Spaulding, 467 U.S. 69 (1984) ..... 15

NAACP v. Alabama, 357 U.S. 449, (1958)........... 13

New York State Club Ass’n, Inc. v. City of New

York, 487 U.S. 1, 108 S.Ct. 2225 (1988) .. . .2,6,7,10,15

Ohio Civil Rights Comm’n v. Dayton Christian

Schools, 477 U.S. 619 629 (1986)................. 11

Roberts v. United States Jaycees, 468 U.S. 609

I e's vy ose vk 6 2 aa co ee er Pe are 15

Thomas v. Review Bd. of Ind. Employment Sec.

es ME RU, WOE CRUIED cc cee ewe eee ewes eens: 9

University Club v. City of New York, 842 F.2d 37

EE AR rn 12

LAW REVIEW:

NOTE, ‘State Power and Discrimination by Private

Clubs: First Amendment Protection for

Nonexpressive Associations’ 104 Harvard

ee 14

]

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

THE CITY OF NEW ORLEANS, THE HUMAN

RELATIONS COMMISSION AND

EARL D. JACKSON, SR., IN HIS

OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR

OF THE HUMAN RELATIONS COMMISSION

Petitioner

VERSUS

LOUISIANA DEBATING AND LITERARY

ASSOCIATION, THE STRATFORD CLUB, THE

BOSTON CLUB OF NEW ORLEANS

AND THE PICKWICK CLUB

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS ISSUED BY LOWER COURTS

The opinion of the U. S. Court of Appeals for the

Fifth Circuit is reported at 42 F.3d 1483. It is set forth in

the Appendix as item 1.

The opinion of the District Court for the Eastern

District of Louisiana is unreported. It is set forth in the Ap-

pendix as item 2.

2

STATEMENT OF GROUNDS FOR JURISDICTION

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. 1254(1), seeking review by writ of certiorari of the

judgment of the U. S. Court of Appeals for the Fifth Circuit

entered on January 26, 1995.

CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES INVOLVED

U. S. Constitution, First Amendment

Chapter 40(C) of the Code of the City of New Orleans

(App., item 3).

STATEMENT OF THE CASE

In 19>, the City of New Orleans adopted Chapter

40C of its Code, to eliminate and prevent discrimination in

employment, places of public accommodation, resort or

amusement, in housing accommodations and in commercial

space because of race, creed, religion, color, sex, age, sexual

orientation, national origin, ancestry or physicial condition

or disability. App., Item 3.

This Chapter (the ‘““Ordinance’’) was modeled on a

similar New York City ordinance upheld against a facial at-

tack by this Court in New York State Club Ass’n, Inc. v.

City of New York, 487 U. S. 1, 108 S.Ct. 2225 (1988). Sec-

tion 40C-101(2) of the Ordinance defines “public accom-

modation”’ as including any club which has more than 75

members, provides regular meal service, and regularly

receives payment for dues, fees, use of space, facilities,

3

services, meals or beverages, directly or indirectly, either

from or on behalf of nonmembers or members for or in the

direct or indirect furtherance of trade or business or from

or on behalf of any persons who claim such payment as a

business expense for tax purposes.

Section 40C-101(3a) of the Ordinance expressly ex-

empts from its definition of “‘public accommodation” any

bona fide private club which does not meet this definition,

and Section 40C-103 of the Ordinance provides that a club

or institution is distinctively private in character and ex-

empt from application of the Ordinance if it meets certain

listed privacy characteristics, or if state or federal constitu-

tional doctrines of privacy or freedom of association would

require that the Ordinance not be applied against it.

The Ordinance established a Human Relations Com-

mission (the “‘Commission’’), which is charged with receiv-

ing and investigating complaints alleging violation of the

Ordinance. Section 40C-53(a). Upon a complaint being filed,

the Commission is to provide notice of the complaint to the

respondent party and conduct a prompt investigation in

order to make a probable cause determination. Section

40C-53(b).

The Commission may endeavor to resolve the matter

through mediation and conciliation, under Section

40C-53(c)(1). As an alternative to, or concurrent with, the

conciliation efforts, the Commission may hold a public

hearing, conducted before a hearing officer designated by

the Commission’s Executive Director, pursuant to Section

40C-53(c)(2).

4

The Ordinance provides a registry procedure for en-

tities to establish exemption as distinctly private in

character, by submitting an application to the Executive

Director, who then schedules a public hearing on the ap-

plication, after notice is published. Section 40C-103(d). At

the hearing, if the applicant proves, by a preponderance of

the evidence, that it is a ‘‘distinctly private entity’, the Ex-

ecutive Director will certify it as such. Section 40C-103(b).

This certification is valid for three years; the entity must

then repeat the process. Section 40C-103(a). Additionally,

at anytime during this three-year period, the Executive

Director, or any interested person, may initiate a complaint

seeking to have the entity’s distinctly private status revok-

ed. Section 40C-103(f).

On December 31, 1992, the Commission received

complaints of discrimination against each of the original

plaintiffs in this action, the Louisiana Debating and

Literary Association, the Stratford Club, the Boston Club

of New Orleans and the Pickwick Club, (collectively ‘‘the

Clubs”’), alleging that each club had discriminated against

him as a member of a racial minority by denying him access

to apply for membership. By letter dated February 12,

1993, the Commission’s Executive Director notified each of

the Clubs of the complaint, requested a response from

them, and advised them of possible options to resolve the

complaint.

The Clubs did not respond to this notice letter. In-

stead, each Club filed an action pursuant to 42 U.S.C. Sect.

1983, invoking the original jurisdiction of the court under

28 U.S.C. Sections 1331 and 1343(3), seeking: (1) a

declaratory judgment that the Ordinance does not apply to

MIE” PPS oy. 9g REED

5

them or, alternatively, that its application to them violates

their federal constitutional right to privacy and freedom of

association; (2) a permanent injunction prohibiting any in-

vestigation of them pursuant to the Ordinance; and, (3) a

permanent injunction enjoining the application, or attemp-

ted application, of the Ordinance to them. The actions were

consolidated, and the Clubs amended their complaints to

add several state law claims. Shortly after the actions were

filed, the City advised the district court that it would not

refrain from proceeding with any investigation of the Clubs

during the pendency of the litigation, without the need for

a restraining order.

On March 10, 1994, the district court granted sum-

mary judgment in favor of the Clubs, concluding that they

had

demonstrated that [they are] private club(s]

located at the most intimate end of the

qualitative continuum of personal relationships.

As such, [the Clubs] have a First Amendment

right to enter into and maintain certain intimate

human relationships without undue state intru-

sion and a right not to have their private affairs

made public by the government. Moreover, [the

Clubs] have established a substantial likelihood

that [the City’s] application of Chapter 40C to

[the Clubs] would expose them to public revela-

tion of their membership lists, their members’ tax

returns, and complete descriptions of all club ac-

tivities, which would ultimately have a chilling ef-

fect on their members’ First Amendment rights.

App., Item 2, p. 29.

6

The court declared that Chapter 40C of the City’s

Code, as applied to the Clubs, violated their rights under

the U. S. Constitution. The court enjoined the City from in-

vestigating any charges of discrimination against the

Clubs and from applying, or attempting to apply, the Or-

dinance to the Clubs, because “‘...application of the or-

dinance to [the Clubs], including public hearings were

private and sensitive information will be sought, coupled

with the inevitable attendant publicity, would unduly

burden [the Clubs’] First Amendment rights.’’ App., Item

2, p. 29.

The City brought timely appeal from this judgment

and, on January 26, 1995, the Fifth Circuit Court of Ap-

peals affirmed the district court judgment.

ARGUMENT

This Court should allow a writ of certiorari under

Rule 10.1 (C) of the Rules of the Court, because the decision

sought to be reviewed decides important federal constitu-

tional questions not previously addressed by the Court, in-

volving the proper balance to be struck between First

Amendment rights of nonexpressive private association

and the competing public interest right of a municipal ad-

ministrative body to inquire into the affairs of a group

claiming protected status, in order to carry out the compell-

ing state interest in preventing and eliminating invidious

discrimination. Further, the decision in question appears to

conflict with the principles set forth in the Court’s opinion

in New York State Club Ass’n. v. New York City, 487 U.S.

1, 108 S.Ct. 2225 (1988).

iinet

7

The ordinance in question here was modeled upon the

New York ordinance upheld in that case, but this case in-

volves as ‘“‘as applied” attack on the ordinance. Because

the New York Club Ass’n involved only a “facial attack”

the Court did not address the questions raised here, regard-

ing the permissible scope of inquiry and level of scrutiny

permissible in applying such an ordinance.

The ordinance in question here employs procedures

virtually identical to those of the New York ordinance

described by this Court in New York Club Ass’n. 487 U.S.

at 10. The courts below struck down the City’s anti-

discrimination ordinance as unconstitutional, not because

the City sought to apply the anti-discrimination re-

quirements of the ordinance to the Clubs or to regulate or

control their membership policies, but because the ad-

ministrative procedures of the City’s Human Relations

Commission failed to guarantee that the Clubs would not

be required to make public disclosures of information

regarding their “private affairs’’ in order to establish their

constitutional ‘‘private association” status so as to be ex-

empted from application of the ordinance.

The crux of the Fifth Circuit opinion is contained in

its statement that...‘‘if those clubs must ‘go public’ in order

to remain private, then their privacy rights ring hollow in-

deed; “‘the flame is not worth the candle’’.”’ App., Item 1 at

p. 40.

Such a statement presents a legal conundrum left

unresolved by the Fifth Circuit. It is self-evident that these

clubs must, in fact, “‘go public’’ in the sense of revealing in-

formation about their affairs, if they wish to establish their

right to claim constitutional protection as a bar to the ap-

8

plication of anti-discrimination laws.

Indeed, the Clubs were required to make just such

public disclosure in the district court proceeding itself, in

order to demonstrate the significant characteristics of a

private association which entitled them to constitutional

protection.

The analysis undertaken by the Fifth Circuit in this

opinion involved an extensive assessment of such informa-

tion, including the Clubs’ history, purposes, activities,

membership criteria, admission processes, internal rules

and by-laws, structual organization and number of

members, leading to the conclusion that they were suffi-

ciently “‘private’’ in nature to be entitled to “‘full constitu-

tional protection” of their First Amendment rights of

private association App., Item 1, at pp. 28-34.

Noting that the protection afforded by the First

Amendment to rights of private association is not ab-

solute, but is limited to protection against ‘‘unjustified

government interference’’ (citing Board of Directors of

Rotary Int.’l Rotary Club of Duarte, 481 U.S. 537 (1987),

the court applied strict scrutiny analysis to the question

whether the “infringement resulting from the investigation

procedures provided by the Ordinance constituted an un-

justified government interference with the Clubs’ right to

freedom of private association.

This analysis placed the burden on the City to justify

its ‘“‘infringement’’ by demonstrating that its action serves

a compelling state interest which cannot be achieved

“through means significantly less restrictive of one’s

associational rights.’’ App., Item 1, at p. 35, citing Dart v.

Brown, 717 F. 2d 1491 (5th Cir. 1983), cert. den.,

S

3

9

469 U. S. 825 (1984) and Thomas v. Review Bd. of Ind.

Employment Sec. Div., 450 U. S. 707 (1981).

Conceding that the purpose for which the City’s anti-

discrimination ordinance was enacted constitutes a ‘‘com-

pelling state interest,’’ the court held that the City failed to

meet its burden to show that its methods were the least in-

trusive means available to carry out this interest.

It is clear from the Fifth Circuit’s discussion of Com-

mission procedures, that the court would find any method

of investigation ‘‘overly intrusive’’ if it included the poten-

tial for requiring any public inquiry or disclosure of infor-

mation regarding the private affairs of these Clubs. See

App., Item 1, at p. 37.

The court rejected the City’s argument that the Or-

dinance provides not only a method by which private clubs

may apply to be registered as such and thereby establish

their right to be exempt from any investigation of com-

plaints (Sect. 40C-103, App., Item 3), but also a procedure

for incremental investigation by the Commissioner which

includes (a) the opportunity for immediate informal resolu-

tion of a complaint through mediation and conciliation, (b)

preliminary investigation by the commissioner to deter-

mine probable cause to believe that a violation of the or-

dinance had occurred (Sect. 40C-53) and (c) a provision for

judicial review (Sect. 40C-54.).

The City contends that sufficient protection is pro-

vided through Commission procedures, guidelines and

restrictions, as well as state statutory provisions, to

10

protect against any violation of the Clubs’ private associa-

tional rights, asd that the requirement of disclosure of in-

formation similar to that which can be required under

judicial precedures of federal courts does not constitute an

inpermissible intrusion upon such privacy rights.

The Fifth Circuit s opinion acknowledged that, by

coming into federal court, the Clubs necessarily accepted

the requirement to make public disclosures of information

regarding their private affairs, including information about

their members. The court noted that it could be argued that

this was the least intrusive method available to the Clubs

for the vindication of their rights of private association

(App. Item 1, at p. 39), but cited the additional protections

available to the Clubs in federal court which were not

available before the City Commission: they were before a

neutral judge, not a Commission hearing officer, and

disclosure of evidence in controlled in federal courts by

evidentiray and procedural rules, whereas Commission

hearings are not bound by strict rules of evidence. /d.

It is submitted that such reasoning carries an unwar-

ranted implication that the City cannot be trusted to carry

out its duties and conduct its procedures in a manner con-

sistent with constitutional principles.

This judicial attitude conflicts with the approach

taken by this Court in New York State Club Assn. v. City

of New York, 487 U.S. 1, 108 S.Ct. 2225 (1988), in which

Justice White made the following observation:

Although the city’s Human Rights Commission

may not be empowered to consider the constitu-

11

tionality of the statute under which it operates,

under accepted legal principles it would be quite

unusual if the Commission ‘‘could not construe

its own statutory mandate in the light of federal

constitutional principles.’’ Ohio Civil Rights

Comm'n v. Dayton Christian Schools, 477 U.S.

619 629 (1986). And even if this were also true,

nothing in the Law purports to preclude judicial

review of constitutional claims that may be raised

on appeal from the administrative enforcement

proceedings. [citations omitted]. These oppor-

tunities for individual associations to contest the

constitutionality of the Law as it may be applied

against them are adequate to assure that any

overbreadth under the Law will be curable

through case-by-case analysis of specific facts.

487 U.S. at 15.

Justice White also observed that the New York City

Council had declared ‘‘that it did not purpose ‘to interfere

in club activities or subject club operations to scrutiny

beyond what is necessary in good faith to enforce the

human rights law.’ 487 U. S. at 6 (emphasis added). This

statement clearly implies that some degree of scrutiny

would be necessary and constitutionally acceptible.

Justice O’Connor, in a concurring opinion in the

same case, demonstrated a similar trust in a municipal

commission’s ability to safeguard constitutional rights

through its administrative procedures, commenting as

follows:

An association or club thus is permitted to

demonstrate that its particular characteristics

12

qualify it for constitutional protection, despite

the presence of the thrve factors specified in Local

Law 63 [to determine whether a club is distinctly

private” for application of its anti-discrimination

laws]. University Club v. City of New York, 842

F.2d 37 41 (C.A.2 1988) (noting that the three fac-

tors in Local Law 63 are not ‘the only ones

relative to the constitutionality of applying the

new definition to [a particular club]’). Moreover,

such organizations are provided with an adequate

opportunity to raise any constitutional claims in

the administrative proceedings through which

Local Law 63 is applied. (Text references omit-

ted.) 487 U. S. at 19.

See also Harrison v. NAACP, 300 U.S. 167, 178

(1959), where the court held that federal courts should not

adjudicate the constitutionality of state enactments which

are fairly open to interpretation, until state courts have

been afforded a reasonable opportunity to construe them,

commenting, ‘‘And of course we shall not assume that the

Virginia courts will not do their full duty in judging these

statutes in light of state and federal constitutional

requirements.”

The only feature of the City’s Ordinance which the

courts below found to constitute such an unwarranted in-

vasion of the Club’s First Amendment rights as to render

the entire City Code Chapter unconstitutional, as applied

to the Clubs, was the potential risk of public exposure of in-

formation about their private affairs.

The Fifth Circuit agreed with the district court’s

statement that the Clubs have a First Amendment right

13

“not to have their private affairs made public by the

government.”’ App., Item 1, at p. 10. It is submitted,

however, that the right not to disclose information about

“private affairs’’ to public scrutiny is not itself a constitu-

tional right, and that the right to shield such information

from disclosure, if the face of legitimate government in-

quiry, deserves protection only to the degree that it may

substantially impair the constitutional right of private

association itself. For example, in NAACP v. Alabama, 357

U. S. 449, (1958), this Court held that Alabama could not

compel the NAACP to provide its membership list to the

State’s Attorney General, but there the Court was con-

sidering the need for providing constitutional protection to

a group engaged in advocacy of dissident views, as an ex-

pressive association, and was presented with ‘‘an uncon-

troverted showing [by the NAACP] that on past occasions

revelation of the identity of its rank-and-file members has

exposed these members to economic reprisal, loss of enjoy-

ment, threat of physical coercion, and other manifestations

of public hostility.’ 367 U. S. at 462. Cf. Shelton v. Tucker,

364 U.S. 479 (1960), in which the court struck down a law

compelling teachers in public schools to file an annual af-

fidavit listing all organizations to which they belonged to

or contributed to for the previous five years, as a violation

of their freedom of expressive association, on the basis that

such protection was necessary to preserve the constitu-

tional freedom to associate with unpopular or minority

organizations.

Here, the associational right sought to be protected

is the right to purely social private association, unrelated

to any advocacy function. While the right to freedom of

such nonexpressive social association has been recognized

14

as one protected under the First Amendment, it can hardly

be said that the interest of such private social clubs in

shielding from public disclosure information as to their ac-

tivities and members carries the same weight as the in-

terest of groups such as the NAACP in protecting such

information.

It is notable that, in this case, the Clubs made no

showing at all as to how their fear of any public disclosure

requirements might adversely impact their right of private

association, nor did the courts below articulate any basis

for according ‘‘full constitutional protection’”’ to the Clubs’

right not to “go public,’’ other than the fact that they were

private clubs. The courts below treated the right of a

private social club to protection against public disclosure

about its affairs as synonymous with the right of private

social association itself. The Fifth Circuit even felt moved

to declare in its opinion that “‘liberty is at stake’’ here,

evoking Patrick Henry’s famous declaration, “...give me

liberty or give me death!”’ App., Item 1, at p. 41, n. 34.

Consider, by contrast, the comment made in Note,

“State Power and Discrimination by Private Clubs: First

Amendment Protection for Nonexpressive Associations”

104 Harvard L. Rev. 1835, 1846 (1991):

In the context of private club discrimination, it is

particularly unlikely that the [U.S. Supreme]

Court could feel secure in disabling the

legislatures in the name of this country’s history

and traditions.

15

CONCLUSION

This Court’s line of recent decisions dealinz with

similar important constitutional issues of First Amend-

ment rights of private association and the permissible

scope of government action in seeking to eliminate repug-

nant discriminatory practices, have sought to carefully

shape the ‘‘delicate balance’”’ between private and public in-

terests so necessary to preserve our nation’s cherished

ideals and principles.

1 E.g., New York State Club Ass’n v. City of New

York, 487 U.S. 1, 108 S.Ct. 2225 (1988); Roberts v.

United States Jaycees 468 U. S. 609 (1984); Board

of Directors of Rotary Int'l. v. Rotary Club, 481 U.

S. 547 (1987); Hishon v. King & Spaulding, 467 U.

S. 69 (1984).

The granting of a writ to review the Fifth Circuit

decision in this case is particularly important in that

endeavor. The questions left unanswered in New York Club

Ass’n., but presaged by the comments of Justices White

and O’Connor quoted earlier, are now presented in an ‘“‘as

applied”’ attack upon a similar ordinance. If this decision is

allowed to stand without review, its effect will be to cripple

the ability of municipal government to act on behalf of its

citizens to investigate charges of discrimination by a

private associations, by cutting off its right to obtain infor-

mation from such associations, and to permit public in-

quiry in order to determine its private status and the ap-

plicability of anti-discrimination laws. This decision leaves

the City with no adequate means of assessing whether its

ordinance is validly applicable to a particular entity.

16

It is suggested that such a result is unacceptable, in

conflict with the balancing principles articulated by this

Court in such private/government interest conflicts, and

should be reviewed by this Court in the interest of further

clarifying those principles.

Respectfully submitted:

BY:

ANNABELLE H. WALKER

DEPUTY CITY ATTORNEY

LOUISIANA BAR NO. 13166

1300 Perdido Street

City Hall - Room 5E01

New Orleans, LA 70112

(504) 565-6200

AVIS MARIE RUSSELL

CITY ATTORNEY

COUNSEL OF RECORD

FOR PETITIONERS

A-1

APPENDIX ITEM 1

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-30180

LOUISIANA DEBATING AND

LITERARY ASSOCIATION,

for itself and on behalf of its members,

d/b/a The Louisiana Club,

Plaintiff- Appellee,

VERSUS

THE CITY OF NEW ORLEANS, ET AL.,

Defendants-Appellants.

FESAEREKKELSESESESES

STRATFORD CLUB,

for itself and on behalf of its members,

Plaintiff-A ppellee,

VERSUS

THE CITY OF NEW ORLEANS, ET AL.,

Defendants-Appellants.

SEESEEEEEKEEEEESESE

A-2

THE BOSTON CLUB OF NEW ORLEANS,

Plaintiff-A ppellee,

VERSUS

THE CITY OF NEW ORLEANS, ET AL.,

Defendants-Appellants.

KEKE EKER KEK KE

PICKWICK CLUB,

for itself and on behalf of its members,

Plaintiff-Appellee,

VERSUS

THE CITY OF NEW ORLEANS, ET AL.,

Defendants-Appellants.

SEKKEKKKEKREKAEK

JAN 26 1995

Appeal from the United States District Court

for the Eastern District of Louisiana

Before BARKSDALE and PARKER, Circuit Judges, and

COBB!, District Judge.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue are whether the district court abused its

discretion in not abstaining from hearing this challenge by

1 District Judge of the Eastern District of Texas, sitting by designation.

E

2

2

&

%

4

3

A-3

four clubs against application to them of a newly enacted

City of New Orleans ordinance prohibiting, inter alia,

discrimination in places of public accommodation; and, ab-

sent an abuse of discretion, whether the clubs had private

status of such a nature that such application, to include the

ordinance’s investigative and public hearing procedures, is

violative of First Amendment ‘‘protectiion] against un-

justified government interference with an individual’s

choice to enter into and maintain certain intimate or

private relationships” (right of private association). Board

of Directors of Rotary Int’l v. Rotary Club of Duarte, 481

U.S. 537, 544 (1987).

Following notification of administrative complaints

(discrimination charges) being filed against them, the four

clubs, claiming private status, sought to enjoin the City

from enforcing the ordinance against them. The district

court granted summary judgment, to include injunctive

relief, holding that the ordinance, as applied to the clubs,

violated their constitutionally protected right of private

association. We AFFIRM.

In late 1991, ‘‘to eliminate and prevent discrimina-

tion’, the City adopted Chapter 40C of its Code. Section

40C-50.2 The Chapter was based on a similar New York

2 Section 40C-50 provides in part:

In the City of New Orleans with its great cosmopolitan

population consisting of large numbers of people of every

race, color, creed, religion, age, physical condition, national

origin and ancestry, many of them with disabilities, there is

no greater danger to the health, morals, safety and welfare

A-4

City ordinance, which, in 1988, had withstood a facial

challenge to its constitutionality. New York State Club

Ass’n, Inc. v. City of New York, 487 U.S. 1 (1988). Among

other things, the Chapter proscribes discrimination by en-

tities that fall within the definition of a ‘public

accommodation’”’.? This term includes, inter alia, any club

which has more than 75 members, ‘‘provides regular meal

service’, and

regularly receives payment for dues, fees, use of

space, facilities, services, meals or beverages,

directly or indirectly, either from or on behalf of

(footnote 2 continued)

of the city and its inhabitants than the existence of groups

prejudiced against one another and antagonistic to each

other because of differences of race, color, sex, creed,

religion, age, national origin or ancestry, or physicial condi-

tion or disability or sexual orientation. The Council hereby

finds and declares that prejudice, intolerence, bigotry, and

discrimination and disorder occasioned thereby threaten the

rights and proper privileges of its inhabitants and menace

the institutions and foundation of a free democratic state.

The New Orleans Human Relations Commission as created

by Article I of this chapter is designated as an instrument

of the city’s power to eliminate and prevent discrimination

in employment, in places of public accommodation, resort or

amusement, in housing accommodations and in commercial

apace because of race, creed, religion, color, 3ex, age, sexual

orientation, national origin, ancestry, or physicial condition

or disability whenever such discrimination is prohibited by

provisions of this chapter or other city law; and said commis-

sion is hereby designated as the local Human Rights Com-

mission for this city and is given such jurisdiction and power

for such purposes as is conferred upon or authorized to a

local Human Rights Commission under applicable state law.

3 Section 40C-102 prohibits discrimination by a public accommodation

‘because of race, color, creed, religion, natural origin, ancestry, or

unreasonably, because of age, sex, sexual orientation, physical condition

or disability.”

A-5

nonmembers or members for or in the direct or in-

direct furtherance of trade or business or from or

on behalf of any persons who claim such payment

as a business expense for tax purposes ....

Section 40C-101 (2).

As reflected in note 2, supra, the Chapter established

the Human Relations Commission, which is charged with

receiving and investigating complaints alleging violation

of the Chapter. Section 40C-53(a). Upon a complaint being

filed, the Commission is to conduct a prompt investigation

in order to make a probable cause determination. Section

40C-53(b). If the Commission finds probable cause, it may

endeavor to eliminate the unlawful discriminatory practice

through conciliation and persuasion. Section 40C-53 (c)(1).

As an alternative to, or concurrent with, the conciliation ef-

forts, and following a public hearing, the Commission may

issue a cease and desist order. Section 40-C53 (c)(2)-(3). The

hearing is conducted before a hearing officer designated by

the Commission’s Executive Director; rules of evidence are

not applicable; and the case in support of the complaint is

presented by the City’s Department of Law or another

representative designated by the Executive Director. Sec-

tion 40C-53 (c) (2).

The Chapter exempts “‘distinctly private entities’.

4 The Chapter permits a complaint to be filed by any person claiming

to be aggrieved by an unlawful discriminatory act or other prohibited

act; additionally, the Commission may initiate the complaint. Section

40C-53(a).

A-6

Section 40C-103.5 Such entities are listed in a registry

maintained by the Commission. To be so listed, an entity

must submit an application to the Executive Director, who

then schedules a public hearing on the application. Section

40C-103 (d). Prior to that hearing, the applicant must

5 Section 40C-103 provides:

A club or institution is distinctly private in character if

either:

(1) a. its services, accommodations, advantages,

facilities, or privileges are not offered or

available to the public or to a wide sector of

the public exclusive of a class or classes

discrimination against whom is prohibited by

this article;

b. it is not an agent of the state or its creatures,

agencies or subdivisions, and its activities do

not constitute state action;

c. it does not advertise for or engage in general

solicitation to attract potential customers,

patrons, or members;

d. it does not fulfill a vital community role af-

fected with public interest;

e. its activities are not subsidized directly or in-

directly by public funds, nor does it otherwise

receive governmental support;

i. it does not exist or operate for commercial or

business purposes;

g. it generally denies its services, accommoda-

tions, advantages, and privileges and par-

ticipation in its activities, meetings, and

social functions to all but members and their

guests;

a Saal ABE Be ick ax

A-7

publish notice of the application and of the hearing, Jd.

“{A]ny interested person’’ may appear at the hearing in

(footnote 5 continued)

h. its membership is of moderate size, and it is

not connected with a larger institution, club or

accommodation that is a __ public

accommodation;

i. its organizers had the intention of con-

stituting a private institution, club, or

accommodation;

j. its organizational structure has not been

altered since passage of the Civil Rights Act

of 1964 in an attempt to avoid the applicabili-

ty of that act, or since the date of the effec-

tiveness of this chapter, in an effort to avoid

the applicability of this article;

k. its members have a nexus of common interest;

l._ its membership policies include an element of

exclusiveness based on one (1) or more criteria

other than membership in a class against

whom discrimination is prohibited by this ar-

ticle; and

m. it does not offer or constitute facilities, spon-

sor activities, or create an environment where

business deals are often made and personal

contacts valuable for business purposes,

employment, and professional advancement

are formed; or

(2) its character as an institution, club, or

association is such that, under the constitu-

tional doctrines of freedom of association (in-

cluding expressive association) and privacy

prevailing in the law at the time of the hear-

ing, the Constitution of this state or of the

United States requires that Section 40C-102

(“Unlawful practices’’)} not be applied

against it.

A-8

support of, or opposition to, the application. Jd. If the ap-

plicant proves, by a preponderance of the evidence, that it

is a ‘distinctly private entity’, the Executive Director will

certify it as such. Section 40C-103 (b). This certification is

valid for three years; the entity must then repeat the pro-

ces. Section 40C-103(a). Additionally, at anytime during

this three-year period, the Executive Director, or any in-

terested person, may initiate a complaint seeking to have

the entity’s distinctly private status revoked. Section

40C-103 (f).

On December 31, 1992, a resident of California filed

four complaints with the Commission, alleging that, in

1992, four clubs located in the City had discriminated

against him in his attempts to gain membership: the Loui-

siana Debating and Literary Association, the Stratford

Club, the Boston Club of New Orleans, and the Pickwick

Club (the Clubs).6 By letter dated February 12, 1993, the

Commission’s Executive Director notified the Clubs of the

Complaint, requested information from them, and advised

them of possible options to resolve the complaint.

6 The complaint made the following charge of discrimination:

On July 16, 1992, and December 28, 1992, [the complaint]

contacted several private clubs in New Orleans, Louisiana,

in regards to obtaining membership. [The complaint] ex-

plained to them that he was a black man, and owned his own

business in Los Angeles and San Francisco, California [,] and

that he was going to be opening up a new business here in

Louisiana. He further explained that he was financially

capable of becoming part of their organization and requested

an application and membership information. [The complai-

nant} indicated that each organization that he contacted

refused to send him an application or to provide any relevant

information with respect to their membership criteria.

A-9

Approximately two weeks later, rather than respond-

ing to the letter, each club filed a separate action, pursuant

to 42 U.S.C. § 1983, seeking: (1) a declaratory judgment

that the Chapter does not apply to them or, alternatively,

that its application to them violates their federal constitu-

tional right to privacy and freedom of association; (2) a per-

manent injunction prohibiting any investigation of them

pursuant to the Chapter; and, (3) a permanent injunction

enjoining the application, or attempted application, of the

Chapter to them.’ The actions were consolidated, and the

Clubs amended their complaints to add several! state law

claims. Shortly after the actions were filed, the City advis-

ed the district court that it would not proceed with any in-

vestigation of the Clubs during the pendency of the

litigation.

The City moved, in July 1993, to have the complaints

dismissed for failure to state a claim or, in the alternative,

to have the district court abstain from exercising jurisdic-

tion based upon Younger and Pullman abstention doc-

trines. Upon denial of the motion that September, the City

petitioned this court unsuccessfully for a writ of man-

damus or prohibition.

Following extensive discovery, the Clubs sought

summary judgment. The district court concluded, after a

lengthy analysis, that the Clubs had

demonstrated that [they are] private clubjs]

located at the most intimate end of the

qualitative continuum of personal relationships.

7 The defendants were the City, the Commission, and its Executive

Director, in his official capacity (collectively, ‘‘the City’’).

A-10

As such, (the Clubs] have a First Amendment

right to enter into and maintain certain intimate

human relationships without undue state intru-

sion and a right not to have their private affairs

made public by the government. Moreover, [the

Clubs] have established a substantial likelihood

that [the City’s] application of Chapter 40C to

[the Clubs] would expose them to public revela-

tion of their membership lists, their members’ tax

returns, and complete descriptions of all club ac-

tivities, which would ultimately have a chilling ef-

fect on their members’ First Amendment rights.

Accordingly, the court enjoined the City from in-

vestigating, pursuant to the Chapter, any charges of

discrimination against the Clubs; it also enjoined the City

from applying, or attempting to apply, the Chapter to the

Clubs, because the inevitable attendant publicity, in-

cluding public hearings for which private and sensitive in-

formation could be sought, would burden unduly the Clubs’

and their members’ First Amendment rights. The court re-

tained jurisdiction.

II.

When all is said and done, the City claims primarily

that the Clubs are not private, and are therefore subject to

aplication of the Chapter, because, notwithstanding their

private trappings, long history, and exclusivity, they con-

trol and dominate business in the City; that, despite un-

disputed evidence to the contrary, the Clubs’ business is

business. But, before reaching whether the Clubs are

private, and if so, whether investigation of them pursuant

A-11

to the administrative complaints threatens unduly their

constitutionally protected right of private association, we

must deal with equally important issues of standing and

abstention. All of these issues are but shorthand for this

classic confrontation of competing governmental interests

and individual rights; interests and rights that bring into

play ‘“‘our Federalism”’ on the one hand, and federal courts’

protection of constitutional rights on the other; a balancing

of governmental interests and individual rights that

reflects the majesty and scope of our living Constitution.

A.

The City contends that the Clubs fail to state any in-

jury or threatened injury that would entitle them to relief

under § 1983; and that, therefore, the complaints should

have been dismissed for failure to state a claim. But, in

essence, the City is asserting lack of standing, a jurisdic-

tional issue subject to plenary review. E.g., Xerox Corp. v.

Genmoora Corp., 888 F.2d 345, 350 (5th Cir. 1989) (failure

to allege injury raises standing, not failure to state a claim);

see, e.g., 7547 Corp. v. Parker & Parsley Dev. Partners, 38

F.3d 211, 217 (5th Cir. 1994) (standing raises jurisdictional

issue); Bogle v. Phillips Petroleum Co., 24 F.3d 758,760

(5th Cir. 1994) (jurisdiction subject to plenary review).

In New York State Club Ass’n, Inc. v. City of New

York, 487 U.S. 1 (1988), the Supreme Court rejected a

similar contention. Immediately after New York City

adopted the ordinance upon which the Chapter is based, a

consortium of clubs and associations sought a declaratory

judgment that the ordinance was facially unconstitutional.

A-12

Despite no evidence of any enforcement or threatened en-

forcement, the Court ruled that the clubs ‘‘would have

standing to bring this same suit on behalf of their own in-

dividual members, since those individuals ‘are suffering im-

mediate or threatened injury’ to their associational rights

as a result of the [ordinance’s] enactment.’’ Jd. at 9-10

(quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)); see also

City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (stan-

ding to seek injunction depends on whether the plaintiff is

‘likely to suffer future injury’’); Steffel v. Thompson, 415

U.S. 452 (1974) (declaratory relief not precluded when of-

ficial threatens prosecution under state statute forbidding

handbilling).

Here, not only has the Chapter been enacted, but

complaints (discrimination charges) have been filed with

the Commission; and it has put the Clubs on notice. Thus,

the threat to the Clubs’ and their members’ associational

rights is significantly greater than that faced in New York

State Club Ass’n. This notwithstanding, the City main-

tains that no threatened harm exists because, if the Clubs

can prove that they are protected by (fall within) the

Chapter’s ‘‘distinctly private entity’’ exemption, they

would not be subject to any further regulation or threat to

their constitutional rights.

But, under attack are the Commission’s procedures

and the investigation necessary to resolve, not only

whether the Clubs are distinctly private entities’ under the

Chapter, but also, the complaints filed against each. Fur-

thermore, by requiring a triennial repetition of the exemp-

tion process, as well as permitting any individual to

challenge the exemption during this period, the Clubs face

A-13

the threat of further and potentially continual regulation

by the City.

In sum, the filing with the Commission of discrimina-

tion charges pursuant to the Chapter presents the Clubs

with a real and immediate threat to their associational

rights. Accordingly, they have standing to challenge the

Chapter.

B.

It goes without saying that abstention, under either

the Younger or Pullman doctrines, is the exception.

Accordingly, even if we determine that the preconditions

for abstention have been met, we still review a district

court’s decision not to abstain only for abuse of discretion.

E.g., American Bank & Trust Co. of Opelousas v. Dent,

982 F.2d 917, 922 (5th Cir. 1993).

R.

Abstention under Younger v. Harris, 401 U.S. 37

(1971), “is generally deemed appropriate [when] assump-

tion of jurisdiction by a federal court would interfere with

pending state proceedings, whether of a criminal, civil, or

even administrative character.’"’ Word of Faith World

Outreach Center Church, Inc. v. Morales, 986 F.2d 962,

966 (5th Cir.), cert. denied, ___U.S.___, 114 S. Ct. 82

(1993).8

8 One of the more vital considerations underlying the doctrine is

the notion of ‘‘comity,” that is, a proper respect for state

functions, a recognition of the fact that the entire country is

made up of a Union of separate state governments, and a

continuance of the belief that the National Government will

fare

A-14

Younger abstention can be applied to “‘state ad-

ministrative proceedings in which important

state interests are vindicated, so long as in the

course of those proceedings, the federal plaintiff

would have a full and fair opportunity to litigate

his constitutional claim.”’ Ohio Civil Rights

[Comm’n v. Dayton Christian Schs., Inc., 477

U.S. 619, 627 (1986)]. We thus must answer three

relevant questions: (1) whether the state pro-

ceedings ‘“‘constitute an ongoing state judicial

proceeding;” (2) whether the proceedings ‘“‘im-

plicate important state interests;’’ and (3)

whether there is ‘‘an adequate opportunity in the

state proceedings toraise constitutional

challenges.’’ Middlesex [County Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)].

New Orleans Pub. Serv., Inc. v. City of New Orleans, 798

F.2d 858, 863-64 (5th Cir. 1986), cert. denied, 481 U.S. 1023

(1987).

The first of the three factors springs from the ob-

vious point that “‘[w]hen no state proceedings are pending,

a federal action does not interfere with or insult state pro-

(footnote 8 continued)

best if the States and their institutions are left free to per-

form their separate functions in their separate ways.... What

the concept does represent is a system in which there is sen-

sitivity to the ligitimate interests of both State and National

Governments, and in which the National Government, anx-

ious though it may be to vindicate and protect federal rights

and federal interests, always endeavors to do so in ways that

will not unduly interfere with the legitimate activities of the

States.

Younger, 401 U.S. at 44.

A-15

cesses and ‘the policies on which the Younger doctrine is

premised “‘have little force....""’ ’”’ Thomas v. Texas State

Bd. of Medical Examiners, 807 F.2d 453, 457 (5th Cir.

1987) (quoting Cencerned Citizens of Vicksburg v. Sills,

567 F.2d 646, 650 (5th Cir. 1978) (quoting Lake Carriers’

Ass’n v. MacMullan, 406 U.S. 498, 509 (1972))).. As noted,

for Younger abstention, state proceedings must be ongoing

and “judicial in nature’. See New Orleans Pub. Serv., 798

F.2d at 863-64; Middlesex, 457 U.S. at 432.

The district court ruled that Younger abstention was

inappropriate because there was no ongoing state pro-

ceeding. The City does not attempt to controvert the ‘‘no

ongoing proceeding” ruling. As a general rule, issues not

presented adequately in a brief are deemed abandoned.

E.g., United States v. Ballard, 779 F.2d 287, 295 (5th Cir.),

cert. denied, 475 U.S. 1109 (1986); Fed. R. App. P. 28(a)(6)

(brief must “‘contain the contentions of the appellant on the

issues presented’’). But, because Younger abstention was

raised in district court and briefed partially here, we will

consider it.

Subsequent to the complaints being filed with the

Commission against the Clubs at the end of 1992, the only

administrative activity has been the February 1993 letters

to the Clubs. In fact, as noted, only a few days after this

action was filed, the City advised the district court that it

would not proceed with an investigation while this action

was pending. Therefore, at issue is whether the complaint

with the Commission and its notification letter ‘‘constitute

and ongoing state judicial proceeding’, Middlesex, 457

U.S. at 432, so as to satisfy the first prong of Younger

abstention.

A-16

In Dayton Christian Schools and Middlesex, the

Supreme Court held that the district courts should have

abstained based on Younger. Unlike the present action,

however, the regulating agencies in those cases had in-

vestigated the allegations, made determinations that pro-

bable cause existed, and served formal charges on the en-

tities. Dayton Christian Schs., 477 U.S. at 623-24; Mid-

dlesex, 457 U.S. at 428. In short, the state action had pro-

gressed significantly beyond that here.

We are confronted with a scenario closer to Telco

Communications, Inc. v. Carbaugh, 885 F.2d 1225 (4th

Cir. 1989), cert. denied, 495 U.S. 904 (1990). Following the

filing of a complaint alleging prohibited conduct, and the

commencement of an investigation, a state agency notified

Telco, by letter, of the claimed violations und invited it to

attend an informal factfinding conference. Following atten-

dance at the conference, Telco sought federal court protec-

tion against further action by the state agency. Jd. at 1227.

In rejecting the agency’s contention that the letter to Telco

constituted the start of administrative proceedings, the

Fourth Circuit

decline{d] to hold that Younger abstention is re-

quired whenever a state bureaucracy has initiated

contact with a putative federal plaintiff. Where

ne formal enforcement action has been under-

taken, any disruption of state process will be

slight.... We hold, therefore, that the period bet-

ween the threat of enforcement and the onset of

formal enforcement proceedings may be an ap-

propriate time for a litigant to bring its First

Amendment challenges in federal court. Indeed, if

A-17

this time is never appropriate, any opportunity

for federal adjudication of federal rights will be

lost.

Id. at 1229 (footnote omitted).9 The City’s contact with the

Clubs has not progressed even as far as that in Telco.

We need not determine whether there was an ongo-

ing state proceeding. As noted, we review a decision not to

abstain only for abuse of discretion. As reflected above, the

district court’s ruling that there was no ongoing pro-

ceeding does not constitute an abuse of that discretion,

especially in light of the fact that the City has not sought

to controvert that ruling. Therefore, we need not proceed

further in considering Younger abstention.

2.

Alternatively, under Railroad Comm’n of Tex. v.

Pullman Co., 312 U.S. 496 (1941), “federal courts should

abstain from decision when difficult and unsettled ques-

tions of state law must be resolved before a substantial

federal constitutional question can be decided.” Hawaii

Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984). ‘Pullman

abstention ... is addressed to the inappropriateness of

federal court resolution of difficult or unsettled questions

of state law and the undesirability of reaching constitu-

tional questions that might be mooted by the application of

state law.” Word of Faith, 986 F.2d at 967.

9 Distinguishing between informal and formal proceedings, based on

Virginia commonwealth law, the Fourth Circuit held also that the fact-

finding conference was not “judicial in nature’’, an issue we need not

address.

A-18

As noted, ‘‘[t]he abstention doctrine is not an

automatic rule applied whenever a federal court is faced

with a doubtful issue of state law; it rather involves a

discretionary exercise of a court’s equity powers.” Baggett

v. Bullitt, 377 U.S. 360, 375 (1964). More accurately, as also

noted, abstention is the exception, not the rule. Nissan

Motor Corp. in U.S.A. v. Harding, 739 F.2d 1005, 1008

(5th Cir. 1984). Thus, our court has recognized that

the extraordinary decision to stay federal ad-

judication requires more than an ambiguity in

state law and a likelihood of avoiding constitu-

tional adjudication. A district court must careful-

ly assess the totality of circumstances presented

by a particular case. This requires a broad inquiry

which should include consideration of the rights

at stake and the costs of delay pending state

court adjudication.

Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir. 1981),

cert. dismissed, 459 U.S. 1012 (1982).1°

The City asserts that this case involves questions of

state and local law which have never been adjudicated by

a state court. Although the City acknowledges that this

alone does not warrant Pullman abstention, it suggests

10 In rejecting Pullman abstention, the district court relied on three

bases: (1) the Commission’s proceedings did not provide the Clubs with

an obvious method for securing a definitive ruling that could be pursued

with full protection of their constitutional claims; (2) Pullman absten-

tion is generally inappropriate where First Amendment or fundamental

rights are at issue; and, (3) Pullman abstention turns on the existence

of an ambiguous issue of state law, but neither party had demonstrated

that the Chapter is ambiguous.

A-19

abstention is still appropriate, by intimating that the

Chapter is susceptible to an interpretation other than its

plain meaning. Such a proposition defies one of the tradi-

tional principles of statutory interpretation, viz., courts

must first look at the plain meaning of a statute’s

language. Furthermore, Pullman abstentsion

contemplates that deference to state court ad-

judication only be made where the issue of state

i law is uncertain. If the state statute in question,

although never interpreted by a state tribunal, is

not fairly subject to an interpretation which will

| render unnecessary or substantially modify the

federal constitutional question, it is the duty of

the federal court to exercise its properly invoked

jurisdiction.

Harman v. Forssenius, 380 U.S. 528, 534-35

(1965); Accord City of Houston Tex. v. Hill, 482

U.S. 451, 469 (1987) (‘“{W]hen a statute is not am-

biguous, there is no need to abstain even if state

courts have never interpreted the statute.’’). The

City has failed to identify, and we fail to find, any

ambiguity in the Chapter which would support,

let alone demand, abstention.

The City’s second basis for Pullman

abstention is that the Clubs raise state constitu-

tional claims mirroring the federal constitutional

rights claimed abridged.i! The only time that a

state constitutional provision may warrant

11 Because the district court found a First Amendment violation, it did

not rule on the state law claims.

iri ih a a eg,

A-20

abstention is when that constitutional provision is so inter-

related with the statute or ordinance at issue that it can be

said state law is ambiguous. Examining Bd. of Eng’rs, Ar-

chitects & Surveyors v. Flores de Otero, 426 U.S. 572, 598

(1976); Pollard v. Cockrell, 578 F.2d 1002, 1010 (5th Cir.

1978). As the Supreme Court noted, “‘to hold that absten-

tion is required because [an ordinance] might conflict with

.. broad and sweeping [state] constitutional provisions,

would convert abstention from an exception into a general

rule.’’ Flores de Otero, 426 U.S. at 598.

Finally, the City maintains that if the district court

were to abstain, the Clubs’ constitutional rights would not

be infringed or suspended while their privacy claims are

asserted in an administrative hearing. But, again, it is the

Commission’s very procedures and investigation which are

at the heart of the threat to the Clubs’ associational rights.

See Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1032

(5th Cir. 1981) (‘‘in view of the high cost of abstention in the

context of suits seeking review of statutes exerting a pur-

ported chilling effect on First Amendment rights, ... we

cannot say that [the] district court abused its discretion in

declining to invoke Pullman abstention’’), cert. denied, 455

U.S. 913 (1982).12

12 Although Red Bluff involved a facial challenge to a statute, the

court’s recognition that abstention may result in a high cost to First

Amendment rights is applicable in this case, despite being an as-applied

challenge. As discussed, infra, the Commission’s investigative powers

and procedures strike at the heart and soul of the Clubs’ and their

members’ associational rights. If the district court were to stay its hand

while the City violates that which the Constitution protects, then the

Clubs’ and their members’ First Amendment freedoms would be for

naught. Furthermore, as discussed, other factors contributed to the

district court’s decision not to abstain.

° eee

EE i

A-21

In sum, the district court did not abuse its discretion

in declining to abstain.!3 Therefore, we turn to the merits.

C.

The critical substantive issues are whether the Clubs

are private entities protected by the First Amendment;

and, if so, whether the Chapter’s procedures interfere im-

permissibly with that protection. But, first, we must con-

sider whether the Clubs’ challenge to the Chapter is facial

or as-applied.

1.

The Clubs maintain they are challenging the Chapter

only as applied to them. The City counters that, in reality,

it is a facial attack, requiring, therefore, that the Clubs

demonstrate either (1) that the Chapter could never be ap-

plied in a valid manner, or (2) that, although it may be ap-

plied validly against the Clubs and others, the Chapter is

so broad that it may inhibit the constitutionally protected

rights of third parties. City Council of Los Angeles v. Tax-

payers for Vincent, 466 U.S. 789, 798 (1984).

Although the City states correctly the standard ap-

plied in facial challenges, it misconstrues the relief the

Clubs seek, the gist of their arguments, and the supporting

evidence. See Bowen v. Kendrick, 487 U.S. 589, 627-28

(1988) (Blackmun, J., dissenting). The Clubs contend that,

based on their unique attributes, application of the Chapter

13 Of interest, as noted, the City waited almost five months after the

Clubs filed suit to raise abstention.

A-22

would impermissibly interfere with their associational and

privacy rights; they do not claim that the ordinance is in-

capable of being applied to any other entity or individual.

Thus, we are faced with an as-applied challenge. See Moore

v. City of Kilgore, Tex., 877 F.2d 364, 390 (5th Cir.) (court

will not consider a facial challenge to a regulation when

plaintiff has succeeded in an as-applied challenge and when

he failed to assert the rights of third parties), cert. denied,

493 U.S. 1003 (1989).14

On three occasions during the 1980s, the Supreme

Court addressed the extent to which the Constitution pro-

tects the associational freedom of private clubs. New York

State Club Ass’n., 487 U.S. 1 (1988); Board of Directors of

Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545

(1987); Roberts v. United States Jaycees, 468 U.S. 609,

617-18 (1984). These cases provide that the Constitution

protects two types of associational freedom:

First, the Court has held that the Constitution

protects against unjustified government in-

terference with an individual’s choice to enter in-

to and maintain certain intimate or private rela-

tionships. Second, the Court has upheld the

freedom of individuals to associate for the pur-

pose of engaging in protected speech or religious

activities.

14 in addition, we note the obvious: the Clubs have been identified

through a discrimination charge as potential violators of the Chapter

and have been so informed. Although the formal mechanism of the Com-

mission’s investigation has not. been initiated, it would be just a matter

of time before at least some, if not all, of the procedures went into play.

ee ee

NE Se ie eis Se Se

A-23

Rotary Club, 481 U.S. at 544. This appeal implicates the

former — private association. 15

The right of private association protects the choice of

individuals and organizations ‘‘to enter into and maintain

certain intimate human relationships ... against undue in-

trusion by the State ....” Roberts, 468 U.S. at 617-18.

‘Determining the limits of state authority over an in-

dividual’s freedom to enter into a particular association ...

unavoidably entails a careful assessment of where that

15 Because this case concerns clubs, we use the term ‘“‘private associa-

tion” to refer to the above referenced constitutional ‘“protect[ion]

against unjustified government interference with an individual's choice

to enter into and maintain certain intimate or private relationships.’’

Rotary Club, 481 U.S. at 544. For this protection, the term “intimate

association”’ is sometimes used by courts; but, that term seems better

suited for relationships, such as marriage, of a more intimate nature

than those formed or forged in a private club.

In any event, and far more importantly, the Court acknowledged

in Roberts that, to secure individual liberty, the formation and preserva-

tion of highly personal relationships must be protected against un-

justified state interference. It then noted that the constitutional protec-

tion “afforded such relationships reflects the realization that individuals

draw much of their emotional enrichment from close ties with others.

Protecting these relationships from unwarranted state interference ...

safeguards the ability independently to define one’s indentity that is

central to any concept of liberty.” Roberts, 468 U.S. at 619. Other

private relationships indentified by the Court as exemplifying these con-

siderations, and thus being entitled to constitutional protection, includ-

ed marriage, childbirth, the raising and education of children, and

cohabitation with one’s relatives. Jd. at 619. But, the Court did not limit

constitutional protection to familial situations; it recognized simply that

these relationships possess those qualities which “‘are likely to reflect

the considerations that have led to an understanding of freedom of

association as an intrinsic element of personal liberty.” Id. at 620. Based

on an appreciation of this, the Court developed the factors, discussed in-

fra, utilized in determining the extent to which an association is entitled

to constitutional protection.

A-24

relationship’s objective characteristics locate it on a spec-

trum from the most intimate to the most attenuated of per-

sonal attachments.”’ Jd. at 620. In determining whether a

particular association is sufficiently private to warrant

constitutional protection, as well as the scope of that pro-

tection, the Court has considered several factors, including:

(1) the organization’s size; (2) its purposes; (3) the selectivi-

ty in choosing its members; (4) the congeniality among its

members; (5) whether others are excluded from critical

aspects of the relationship; and, (6) other characteristics

that in a particular case may be pertinent.!® Rotary Club,

481 U.S. at 546; Roberts, 468 U.S. at 620.

Pursuant to our well-known standard of review for

summary judgments, we conduct a de novo review of the

summary judgment record to determine whether there is a

genuine issue of material fact, and if there is none, whether

the Clubs are entitled to judgment as a matter of .aw. E.z.,

Fed. R. Civ. P. 56; D.E.W., Inc. v. Local 93, Laborers’ Int’l

Union of N. Am., 957 F.2d 196, 199 (5th Cir. 1992). The Ci-

ty contests two rulings on the merits by the district court:

that the Clubs have private club status; and, that the

Chapter, as applied, violates their constitutional rights.

16 Whether an organization is a private club arises more often in cases

dealing with Title II of the Civil Rights Act of 1964. See 42 U.S.C. §

2000a (barring discrimination in places of public accommodation). In

those cases, courts have examined other factors to determine whether

Title Ii's private club exception applies. The other factors include: (1)

the history of the organization; (2) the use of facilities by nonmembers;

(3) whether the club advertises for members; and, (4) whether the club

is nonprofit or for profit. Welsh v. Boy Scouts of Am., 993 F.3d 1267,

1276 (7th Cir. 1993). These additional factors may fall into the ‘‘other

characteristics’ category in considering an assertion of constitutional

private association freedom.

2 ane me

A-25

Only to the extent that it challenges the private club

status ruling does the City contest the district court’s

subsequent conclusion that the Clubs “are entitled to the

fullest protection”’ of the First Amendment.!7 To do other-

wise would run contrary to section 40C-103 of the Chapter:

A Club ... is distinctly private in character if ...:

(2)its character as an institution, club, or

association is such that, under the constitu-

tional doctrines of freedom of association (in-

cluding expressive association) and privacy

prevailing in the law at the time of the hear-

ing, the Constitution of this state or of the

United States requires that Section 40C-102

(“Unlawful practices’’)} not be applied

against it.

As noted, consistent with prevailing law, and as reflected

in the criteria in the Chapter for establishing “distinctly

private’’ status, the City must prove more than the fact

that a club might serve to proniote or advance business or

a business relationship between, or for, its members.

Obviously, business benefit might spring from any

association, meeting, or encounter. It is well known that

ofttimes it is ‘‘not what you know, but who you know’”’; and

17 After determining that no material fact issue existed and recognizing

the spectrum upon which private relationships may fall, the district

court evaluated the several factors and concluded that the Clubs “are

entitled to the fullest protection of the First Amendment's right to

privacy and freedom of intimate association” because they “‘met every

factor in determining private club status and because they have very

selective membership policies designed to ensure comradery and close

personal acquaintances’’.

A-26

people often prefer, in any event, to do business with

friends or acquaintances. But this fact alone cannot be the

basis for whether a club receives private association protec-

tion under the First Amendment. If it were, no club could

be private for purposes of that protection. The City — and

the Chapter — recognize this; hence, the City must prove

more (or, for summary judgment purposes, present a

material fact issue).18 See, e.g., Roberts, 468 U.S. at 633

18 In its brief, the City states that government “has absolutely no

legitimate interest in the affairs of truly private Clubs who have not

been interjected into public economic life; and [posits that] it may well

be that the ... clubs will be determined to be distinctly private in the ...

Commission proceedings.’’ But, without any reference to the record, it

then claims that the Clubs have been injected into public economic life:

Surely a substantial issue of fact was raised as to the alleged

“‘non-business”’ character of the Clubs. In terms of the City’s

legitimate interest in regulating trade and economic activity

to prevent discrimination, the entanglement of a club in

business affairs should not be ignored because the club has

been consistently ‘‘exclusive’’ — when clubs become entangl-

ed in the public life of a community through subsidization by

businesses who derive a business advantage from the club,

“exclusiveness”’ (or discrimination against disadvantaged

groups) is precisely the evil which the state seeks to inhibit

under its police power. The state should not permit a

business-related club — whose members derive tax and in-

come advantages by having their businesses pay their dues

and fees as a legitimate business expense — to insulate its

discrimination from government regulations by showing

how narrow [,] long-standing, and thorough it has been in ex-

cluding all but a select group of white non-semitic males of

a limited ethnic genealogy.

In a City in which both social institutions and major

economic institutions have historically been controlled and

dominated by an ‘“‘exclusive’’ small sector of society, it is

A-27

(O’Connor, J., concurring). but, as shown infra, it has failed

totally to do so.

a.

The City maintains that the following creates a

material fact issue, making summary judgment improper:

“the clubs (especially the Boston Club) have historically

been funded in large part by the businesses and profes-

sional entities of its members, reflecting that these

business entities viewed club activities as being in fur-

therance of trade, business and professional

advancement.’’!9 But, this broad assertion has no support

in the summary judgment record. The City concedes that

footnote 18 continued

obvious that the utility of “exclusive ” clubs for business

purposes within ‘‘our own” set will be recognized by

historically ‘exclusive’ economic institutions such as

banks, law firms, and “‘old line” business companies.

(Emphasis by City.)

19 As hereinafter quoted, in response to the Clubs’ summary judgment

motion, the City made a similar conclusional claim in district court; it

did not dispute the private status of those clubs on any basis except that

they were places for promoting business:

Plaintiffs are not entitled to a declaratory judgment or

an injunction at this time because genuine issues of material

fact relevant to their individual statuses preclude summary

judgment. Defendants do not contest Plaintiffs’ claims and

evidentiary support that they are ... non-profit corporations

whose members have common social interests and con-

geniality; that they each have selective and exclusive

membership policies as well as restrictive ( though very dif-

ferent) guest policies. However, Plaintiffs’ statuses remain

at issue because some evidence exists to contradict their

joint claims that they are not ... fora for their members to

A-28

the only evidence supporting this broad assertion is that,

in the past, a local bank paid fees for six of its officers at

some of the clubs.2° The bank had paid for either their

dues, luncheon expenses, or both.2! It is undisputed that

these payments occurred.

b.

In actuality, what the City contests is the legal

significance to be accorded those payments; no material

fact issue exists in the summary judgment record. The

district court’s conclusion that the Clubs constitute

private entities entitled to the fullest protection of the

First Amendment was not a finding of fact; it was a conclu-

sion of law based on that record. But, before reviewing free-

ly this legal conclusion, it is necessary to review what the

record discloses.

(i)

Founded in the 1800s, the Clubs have a longstanding

history of existing exclusively for private, social purposes.

footnote 19 continued

create or foster valuable business contacts or that they

otherwise do not serve or operate to advance the employ-

ment and professions of many of their members.

20 Surprisingly, the City did not file a reply brief. It made this conces-

sion at oral argument in response to a direct question on this point.

21 With respect to the six bank officers, the bank had paid such ex-

penses for all six at the Boston Club, for one at the Pickwick Club, and

for one at Louisiana Debating. We could not locate, nor did the City

identify, any evidence indicating that any Stratford Club member’s dues

or expenses were paid by his employer.

an hides

A-29

In addition to serving purely social functions, the Clubs

prohibit the transaction or discussion of any business on

their premises.2? In order to enforce this prohibition, no

member or guest can display or offer a business card, or

display business papers. Accordingly, the Clubs have a

purely social purpose and history.23

oo Interestingly, it appears that the nonresident complainant's reason

for wanting to join the Clubs was for business purposes, as reflected by

the following deposition testimony by the Commission’s Executive

Director:

Q. Do you know ... why [the complainant] elected to

contact these four clubs?

A. The information that he personally provided to the

Commission, namely, myself ... — because that particular

question was asked — was that he had intentions of

establishing a business here in New Orleans — namely. a

temporary personnel service, which is the same type of

business that he has in San Francisco and San Diego,

California. It was his desire to initially try to become [a]

member{] of not one but all four clubs for the purposes of

establishing business relations and contacts necessary for

him to start to meet potential clients for his business — at

least, that was what was provided to me.

Q. So [the complainant] fully intended to use the

facilities of the clubs and the membership of the clubs for

business purposes?

A. Yes.

(But see note 6, supra; the complainant stated that, in addition to San

Francisco, his business was in Los Angeles, not in San Diego as testified

by the Executive Director.)

23 In contrast, the purpose of the Rotary Clubs was described as ‘“‘to

produce an inclusive, not exclusive, membership, making possible the

recognition of all useful local occupations, and enabling the club to be

a true cross section of the business and professional life of the communi-

ty.”” Rotary Club, 481 U.S. at 546. They sought inclusive fellowship

A-30

(ii)

The Clubs’ members share common social interests

and backgrounds; often, the relationships predate member-

ship in the Clubs through either family, religious activity,

or other social groups. The criteria the Clubs use in selec-

ting members include character, relationships and acquain-

tances, congeniality, and compatibility. Thus, a close nexus

exists between the Clubs’ purposes and membership

criteria.24

Like the membership criteria, the admission process

is very restrictive. Only existing members may propose a

new member, and a proposal does not ensure admission.

The Clubs engage in a fairly rigorous screening process to

determine whether the prospective new member meets that.

club’s criteria. Finally, whether to admit the prospective

member is voted on by the general membership. A very

limited number of objections deny membership: five at the

footnote 23 continued

based on diversity of interests. Jd. at 546-47. Accordingly, the Supreme

Court noted that this did not suggest “the kind of private or personal

relationship to which we have accorded protection under the First

Amentment.” Jd. at 547.

24 In contrast, Rotary Clubs sought “‘to produce an inclusive, not ex-

clusive, membership’, and, in so doing, were instructed ‘‘to avoid ‘ar-

bitrary limits on the number of members in the club,’ and to ‘establish

and maintain a membership growth pattern.’ ’’ Rotary Club, 481 U.S. at

546-47. As for the Jaycees, its local chapters were described as “‘basical-

ly unselective groups”’ who “‘{alpart from age and sex’’, did not “employ

any criteria for judging applicants for membership, and new members

[were] routinely recruited and admitted ....’" Roberts, 468 U.S. at 621.

ad ORL RS SARL CONE A PRED Fe AEN ene ie

A-31

Boston Club; three at each of the others.25

(iii)

Each club has only one facility, which is maintained

for the exclusive use of its members and guests. No signs

outside the Clubs’ buildings identify the locations to the

public.26 Non-members are strictly prohibited from using

the facilities.

Even though the Clubs permit members to bring

guests, this practice is severely limited. Louisiana

Debating prohibits its members from bringing or inviting

any male guests, at any time and under any circumstances.

Female guests are permitted rarely, but usually, they are

the members’ wives. At the Boston and Stratford Clubs.

male residents of the City are strictly prohibited from at-

tending as guests; women and children residents may be ac-

companied by a member, but on extraordinary occasions:

the inviting of male nonresidents is strictly limited accor-

ding to the time, frequency, and occasion of the visit. The

Pickwick Club permits nonresident males to attend as

guests during the noonday meals, provided the guest is a

25 At the J aycees, ‘‘new members [were] routinely recruited and admit-

ted with no inquiry into their backgrounds. In fact, a local officer

testified that he could recall no instance in which an applicant had been

denied membership on any basis other than age or sex.” Roberts, 468

U.S. at 621. Local Rotary Clubs were “instructed to ‘keep a flow of

{membership} prospects coming’ to make up fer [a 10% annual] attrition

[rate] and gradually to enlarge the membership.” Rotary Club, 481 U.S.

at 546.

26 This is in stark contrast to the Rotary Clubs, which sought to keep

their ‘windows and doors open to the whole world”. Rotary Club, 481

U.S. at 547.

A-32

friend or close relative of the member and has some basis

for a social acquaintance with other members; women and

resident males are permitted, but only at limited times and

with the approval of the club’s Board of Governors.??

(iv)

The Clubs are managed and controlled locally by

their members; either directly, by an elected Board of

Governors, or by both; none of the Clubs is associated with

or controlled by a national organization. Additionally, the

Clubs restrict total membership to a limited number. The

Pickwick Club’s regular members are limited to 500; Loui-

siana Debating, 325 residents; the Stratford Club, 350

residents and a limited number of nonresidents; and, the

Boston Club, 600 residents and 400 nonresidents.?8 Addi-

tionally, the Clubs operate as not-for-profit corporations.

27 For the J aycees, ‘‘much of the activity central to the formation and

maintenance of the association involve{d] the participation of strangers

to that relationship.’’ Roberts, 468 U.S. at 621. As for the Rotary Clubs,

many of their ‘‘central activities [were] carried on in the presence of

strangers” and ‘[mjembers [were] encouraged to invite business

associates and competitors to meetings’’. Rotary Club, 481 U.S. at 547.

28 The Jaycees’ policy-making authority was vested in a national board

consisting of delegates from local chapters; it had 7,400 local chapters,

Roberts, 468 U.S. at 613. Rotary International had 19,788 local

organizations in 157 countries. Rotary Club, 481 U.S. at 538-40, 546.

As for the number of members, the Jaycees had 295,000 national

members, and Rotary International nearly 900,000 members. As Justice

O’Connor recognized in New York State Club Ass’n, a club in a large ci-

ty, such as New York, ‘“‘with over 400 members may still be relatively

intimate in nature, so that a constitutional right to control membership

takes precedence” over the city’s attempt to ban discrimination within

the club. 487 U.S. at 19 (O’Connor, J., concurring). We note also that the

Seventh Circuit determined that the Boy Scouts was a private club

EN RT Lee ee ey mete EE ae heed ots =

i ie al ha oe

A-33

Cc.

Against this factual backdrop, we note again that

the Chapter, adopted in 1991, was modeled after the New

York City ordinance at issue, in 1988, in New York State

Club Ass’n, where the Court recognized that ‘‘there may be

clubs that would be entitled to constitutional protection’’.

New York State Club Ass’n, 487 U.S. at 12. Obviously, the

Clubs are not similar to the J aycees or the Rotary.

Relatively small in size, they seek to maintain an at-

mosphere in which their members can enjoy the comradery

and congeniality of one another. Employing very restric-

tive guest and admission policies, they seek to remain

isolated. In light of the undisputed facts, including the

isolated dues payments by a single employer, we conclude,

as did the district court, that the Clubs constitute organiza-

tions whose location on the spectrum of personal at-

tachments places them near those that are “most

intimate’’.29 Accordingly, they enjoy the fullest protection

footnote 28 continued

under the Civil Rights Act, despite having five million members. Welsh,

993 F.2d at 1276-77 (despite its size, Boy Scouts was still a private club

because of its “plen or purpose of exclusiveness’’).

29 As noted, the only evidence supporting the City’s contention that the

Clubs are not private entities entitled to constitutional protection was

the limited payment of dues or luncheon expenses by a local bank for six

of its officers who were members of at least one of the Clubs. Whether

such payments should even be considered in evaluating the status of an

organization has not been addressed by the Supreme Court, nor do we

need to decide that question here. For purposes of this opinion, we

assume, without deciding, that they should be considered.

The City’s reliance on these payments is evidently based, in part,

on the Chapter’s definition of “public accommodation”. The definition

includes clubs which “‘regularly receivef] payment for dues, fees, ... meals

A-34

of their right of private association.

3.

Having determined that the Clubs are constitutional-

ly protected private entities, we arrive at the critical issue

in this appeal: whether the proposed investigation of the

administrative complaints, as well as other Commission

proceedings that might follow, threatens unduly the Clubs’

right of private association. We conclude that it does.

Of course, as is also true for expressive associational

rights, the constitutional right of private association is not

protected absolutely against infringement by the state. As

staied in Rotary Club, the protection is ‘“‘againsst un-

justified government interference”. 481 U.S. at 544. As a

_ fundamental right, however, any such infringement is sub-

ject to strict scrutiny. McCabe v. Sharrett, 12 F.3d 1558,

1566 (11th Cir. 1994). Strict scrutiny analysis requires the

footnote 29 continued

or beverages, directly or indirectly, either from or on behalf of

nonmembers or members for or in the direct or indirect furtherance of

trade or business ....’’ Section 40C-101(2). As noted, this definition is

based on the ordinance considered in New York State Club Ass’n. That

ordinance covered clubs which had at least 400 members, provided

regular meal service, and received regular payments ‘“‘directly or in-

directly from or on behalf of nonmembers for the furtherance of trade

or business.”” New York State Club Ass’n, 487 U.S. at 12.

In addressing the criteria in the New York ordinance, the Court

stated that ‘‘[tJhese characteristics are at least as significant in defining

the nonprivate nature of these associations, because of the kind of role

that strangers play in their ordinary existence ...."" Id. at 12 (emphasis

added). The City expanded the definition in New York State Club Ass’n

to include payments received on behalf of, not only nonmembers, but

also members.

a ems I sR tis lei Ec cnn

A-35

government to demonstrate that (1) the state action serves

a compelling state interest which (2) cannot be achieved

through means significantly less restrictive of one’s

associational freedom. See, e.g., Dart v. Brown, 717 F.2d

1491, 1498 (5th Cir. 1983), cert. denied, 469 U.S. 825 (1984).

See also Thomas v. Review Bd. of Ind. Employment Sec.

Div., 450 U.S. 707, 718 (1981) (“The state may justify an

inroad on religious liberty by showing that it is the least

restrictive means of achieving some compelling state in-

terest’’); Clark v. Library of Congress, 750 F.2d 89, 95

(D.C. Cir. 1984) (burden is on the government to show strict

scrutiny requirements are met).

As for the first prong of this analysis, it is un-

contested that the eradication of discrimination in places of

public accommodation constitutes a compelling state in-

terest. Thus, the crux of this appeal is whether the means

adopted by the city interfere impermissibly with the Club’s

right of private association. The City failed to address

directly how its investigative methods and other pro-

cedures are the least intrusive interference with that right.

Instead, in order to demonstrate that the procedures do not

interfere impermissibly, the City addresses only three

areas; it claims (1) that the Chapter would not require

highly public proceedings; (2) that it could not demand

membership lists from the Clubs; and, (3) that liberal

discovery in the federal court proceeding to which the

Clubs subjected themselves equates with the powers it

possesses under the Chapter.2° We consider these claims

30 These claims appear to be in response to the district court’s conclu-

sion that the Clubs established

A-36

to be the City’s attempt to satisfy its burden of showing

that its methods and procedures are the least intrusive.

In analyzing whether these identified City pro-

cedures are the least intrusive upon the Clubs’ right of

private association, we keep in mind that ‘associational

rights ‘are protected not only against heavy-handed frontal

attack, but also from being stifled by more subtle govern-

mental interference,’ ... and that these rights can be abridg-

ed even by government actions that do not directly restrict

individuals’ ability to associate freely.’’ Lyng v. Interna-

tional Union, United Auto. Aerospace & Agric. Imple-

ment Workers of Am., 485 U.S. 360, 367 n.5 (1988)

(quoting Bates v. City of Little Rock, 361 U.S. 516, 523

11960)),

a.

With respect to proceeding on the complaint, the in-

vestigation and hearing fail to ensure adequate safety for

the Clubs’ private association right. The City attempts to

footnote 30 continued

that there is a reasonable probability that the [Commis-

sion’s] investigation into the complaints of discrimination

would publicly reveal its membership lists and other in-

timate aspects of [the Clubs] that would have a chilling af-

fect on their members, First Amendment rights.... The [Com-

mission’s] investigative powers include the right to compel

production of documents and testimony of witnesses at a

public hearing. Judging from [the City’s] First Request for

Production of Documents, the breadth of the testimony and

documents likely to be sought during the public hearings by

the [Commission] is far-reaching and certainly contains

private and sensitive Club matters deserving of constitu-

tional protection.

ee POS fe ts

LAD CES EIT IR a hae gies 88 Sah ge ale aah head ‘

Pinaceae

MES lh aly ie Bie

A-37

demonstrate that any hearing would not be overly in-

trusive by relying upon Louisiana state statutes.

Specifically, it contends that La. Rev. Stat. 51:2262(F), in

conjunction with the state’s open meeting law (La. Rev.

Stat. 42:6.1(A)(4) & (8)), provide an adequate safegard

against intrusion into the Clubs’ intimate affairs.3! At oral

argument, however, while acknowledging that the hearing

is public, the City suggested, without any positive support

in the Chapter, that the information could be considered in

camera.

The City’s reliance upon state statute is misplaced

31 La. Rev. Stat. 51:2262(F) provides:

It is unlawful for a commissioner or employee of the commis-

sion to make public with respect to a particular person,

without his consent, information obtained by the commis-

sion pursuant to its authority under this Section except as

reasonably necessary to the conduct of a proceeding under

this Chapter.

The open meetings law, La. Rev. Stat. 42:6, provides, in part, that “‘ex-

ecutive session shall be limited to matters allowed to be exempted from

discussion at open meetings by R.S. 42:6.1.” In turn, La. Rev. Stat.

42:6.1(A), provides, in pertinent part:

A public body may hold an executive session ... for one or

more of the following reasons:

(4) Investigative proceedings regarding allegations of

misconduct.

(8) Or any other matters now provided for or as may

be provided for by the legislature.

A-38

for several reasons. First, state law does not compel the

Commission to operate in executive session. The decision

to do so is discretionary (‘A public body may ...’’). Thus,

even if state law empowered the Commission to conduct its

hearing in executive session, that is solely at the option of

the Commission. Second, the City’s reliance on La. Rev.

Stat. 51:2262(F) attempts improperly to expand the

statute’s scope. It applies only to the Louisiana Commis-

sion on Human Rights, not the Commission created by the

Chapter. See La. Rev. Stat. 51:2232(1) (‘‘ ‘Commission’

means the Louisiana Commission on Human Rights’’).

Moreover, even if we assume that the Commissions’

investigative procedures and the hearing could be kept

from being public, section 40C-7 directs the Commission,

“after the completion of any hearing, [to] make a report in

writing to the Mayor and City Council setting forth the

facts found and its recommendations or decision ...’’ The

City has failed to indicate how such a disclosure will not in-

fringe impermissibly upon the Clubs’ right of private

association.

b.

The City has failed also to demonstrate that the

Chapter prevents it from demanding the Clubs’ member-

ship lists. The City maintains that section 40C-52 provides

an adequate safeguard. The section provides that ‘‘[t}he

Commission shall not require the production of names from

a general membership list of any club that is a place of

public accommodation.”

But, the section refers only to ‘‘Place[{s] of public ac-

Se Be a eT

OLN aici eal SA Fe iva RCE SEA 6 Poo aaa UN Udi.

4h me! OY get

A-39

commodation’’; no membership list protection is provided

for private clubs. The City claims that it would be absurd

not to apply section 40C-52 to private clubs during its pro-

ceedings; but, the Chapter is very clear — a private club,

Le, not a place of public accommodation, is not

protected.32

c.

By coming into federal court, the Clubs became sub-

ject to discovery; this may have resulted in their disclosing

certain information, including about their members, which

they would have otherwise preferred not to do. On the

other hand, it is arguable that it is the least intrusive

method available to them for the vindication of their right

of private association. At least in federal court, the Clubs

enjoy two protections unavailable before the Commission.

First, they were before a neutral judge, not a hearing of-

ficer appointed by the Commission’s Executive Director.

Second, federal courts control the disclosure of evidence in

discovery and at a hearing via rules of evidence and civil

procedure; the Chapter provides that a Commission hear-

ing “‘shall not be bound by the strict rules of evidence

prevailing in courts of law or equity.” Section 40C-53(c)(2).

Additionally, the City stated at oral argument that, in con-

ducting a hearing, it would be entitled to do everything it

did in federal court with the exception of requesting

membership lists. (As noted, it is far from clear that the

32 At oral argument, the City acknowledged that the Commission has

the power to demand the tax returns of members, but asserted that they

could be redacted in order not to disclose the members’ names. (Ap-

parently, this power flows from the Commission’s subpoena power. Sec-

tion 40C-53(a).) The power to mandate the disclosure of even redacted

tax returns indicates how intrusive the Chapter probes into the private

affairs of the Clubs and their members.

A-40

City would not be able to obtain membership lists in a Com-

mission proceeding.)

In sum, the city has failed to meet its burden of

demonstrating how the means it has selected to enforce the

Chapter are the least intrusive on the Clubs’ and their

members’ right of private association.2> We _ hold,

therefore, that the Chapter, as applied to the Clubs, is

unconstitutional.

ITI.

Discrimination can find no rest in a place of public ac-

commodation. Whether it should be suffered to abide in

private clubs is debatable among persons of good will. But,

the Constitution trumps; those clubs have a right of

private association under the First Amendment with which

the government may not interfere impermissibly. Con-

comitantly, if those clubs must go public, in order to re-

main private, then their privacy rights ring hollow indeed;

“the flame is not worth the candle’’.

Perhaps the Clubs should have elected instead to

seek an administrative ‘‘distinctly private’ exemption

under the Chapter; no doubt, that might well have been the

easier course. But, the easier course is not the required

33 The district court has retained jurisdiction. As noted, the City ad-

dressed only three items in seeking to meet its burden of demonstrating

that its means are the least intrusive on the Clubs’ private association

right. It goes without saying that our holding that it failed to meet its

burden as to those three items should not be read to mean necessarily

that, if it revised its procedures as to them, the Chapter would otherwise

pass constitutional muster in this, or a similar, case.

8 Se Mi OT I SSAA Eh Bnet

Ait Pe Ot Be a SA ASES ANS LIN BRO RE SR MELE PBEM, eR tae le ats STH

A-41

course; were it so, this would be a far different Nation.34

And, when persons seek to vindicate constitutional rights

in federal court, they will be heard, absent more compelling

reasons under that same Constitution for the court to stay

its hand. The judgment is

AFFIRMED.

34 It is well to remember that, boiled down, individual liberty under the

First Amendment is at stake. Roberts, 468 U.S. at 618. As already

referenced,

the constitutional shelter afforded [certain hightly personal]

relationships reflects the realization that individuals draw

much of their emotional enrichment from close ties with

others. Protecting these relationships from unwarranted

state interference therefore safeguards the ability in-

dependently to define one’s identity that is central to any

concept of liberty.

Id. at 619. That, in the final analysis, liberty is at stake brings forward

Patrick Henry’s admonition, known to all, at the Virginia Convention in

Richmond, against taking the easier course and not asserting one’s

rights in exchange for ease and comfort; it is as true today as it was in

1775:

Is life so dear or peace so sweet as to be purchased at the

price of chains and slavery? Forbid it, Almighty God, I know

not what course others may take, but as for me, give me

liberty or give me death!

Speech of Patrick Henry (Mar. 23, 1775) in THE REVOLUTIONARY

YEARS 123, 125 (Mortimer J. Adler, ed., 1976).