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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1145

## Text

}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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1693%3A1. Public record. Not legal advice.