Louisiana Debating and Literary Ass'n v. City of New Orleans

• Decision Date: 26 January 1995
• Docket Number: No. 94-30180,94-30180
• Citation: 42 F.3d 1483
• Parties: LOUISIANA DEBATING AND LITERARY ASSOCIATION, for itself and on behalf of its members, d/b/a The Louisiana Club, Plaintiff-Appellee, v. The CITY OF NEW ORLEANS, et al., Defendants-Appellants. STRATFORD CLUB, for itself and on behalf of its members, Plaintiff-Appellee, v. The CITY OF NEW ORLEANS, et al., Defendants-Appellants. The BOSTON CLUB OF NEW ORLEANS, Plaintiff-Appellee, v. The CITY OF NEW ORLEANS, et al., Defendants-Appellants. PICKWICK CLUB, for itself and on behalf of its members, Plaintiff-Appellee, v. The CITY OF NEW ORLEANS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1483

42 F.3d 1483

LOUISIANA DEBATING AND LITERARY ASSOCIATION, for itself and

on behalf of its members, d/b/a The Louisiana

Club, Plaintiff-Appellee, v. The CITY OF NEW ORLEANS, et al., Defendants-Appellants.

STRATFORD CLUB, for itself and on behalf of its members, Plaintiff-Appellee, v. The CITY OF NEW ORLEANS, et al., Defendants-Appellants.

The BOSTON CLUB OF NEW ORLEANS, Plaintiff-Appellee, v. The CITY OF NEW ORLEANS, et al., Defendants-Appellants.

PICKWICK CLUB, for itself and on behalf of its members, Plaintiff-Appellee, v. The CITY OF NEW ORLEANS, et al., Defendants-Appellants.

No. 94-30180.

United States Court of Appeals, Fifth Circuit.

Jan. 26, 1995.

Avis Marie Russell, Bruce E. Naccari, Deputy City Atty., New Orleans, LA, for appellants.

Kevin C. O'Bryon, Leake & Anderson, New Orleans, LA, Caine O'Rear, III, Louis E. Braswell, Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, AL, for Louisiana Debating, Stratford Club and Boston Club.

Benjamin R. Slater, Jr., Donald J. Miester, Jr., A. Elise Brown, Slater Law Firm, New Orleans, LA, for Pickwick Club.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BARKSDALE and PARKER, Circuit Judges, and COBB ¹, 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 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, absent 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 "protect[ion] against unjustified 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, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474 (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.

I.

In late 1991, "to eliminate and prevent discrimination", the City adopted Chapter 40C of its Code. Section 40C-50. ² The Chapter was based on a similar New York 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, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988). Among other things, the Chapter proscribes discrimination by entities that fall within the definition of a "public accommodation". ³ 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 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(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. ⁴ 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 efforts, and following a public hearing, the Commission may issue a cease and desist order. Section 40C-53(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. Section 40C-53(c)(2).

The Chapter exempts "distinctly private entities". 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 publish notice of the application and of the hearing. Id. "[A]ny interested person" may appear at the hearing in support of, or opposition to, the application. Id. If the applicant 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 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 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 Louisiana 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.

Approximately two weeks later, rather than responding to the letter, each club filed a separate action, pursuant to 42 U.S.C. Sec. 1983, seeking: (1) a declaratory judgment that the Chapter does not apply to 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 investigation of them pursuant to the Chapter; and, (3) a permanent injunction enjoining the application, or attempted application, of the Chapter to them. ⁷ 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 proceed with any investigation 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 jurisdiction based upon Younger and Pullman abstention doctrines. Upon denial of the motion that September, the City petitioned this court unsuccessfully for a writ of mandamus 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 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 intrusion 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 revelation of their membership lists, their members' tax returns, and complete descriptions of all club activities, which would ultimately have a chilling effect on their members' First Amendment rights.

Accordingly, the court enjoined the City from investigating, 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, including public hearings for which private and sensitive information could be sought, would burden unduly the Clubs' and their members' First Amendment rights. The court retained jurisdiction.

II.

When all is said and done, the City claims primarily that the Clubs are not private, and are therefore subject to application of the Chapter, because, notwithstanding their private trappings, long history, and exclusivity, they control and dominate business in the City; that, despite undisputed 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 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 injury or threatened injury that would entitle them to relief under Sec. 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 jurisdictional issue subject to plenary review. E.g., Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 350 (5th Cir.1989) ...