HUMAN RIGHTS COM'N v. BEN. AND PRO. ORDER
Decision Date | 07 November 2003 |
Docket Number | No. 01-495.,01-495. |
Citation | 839 A.2d 576 |
Court | Vermont Supreme Court |
Parties | HUMAN RIGHTS COMMISSION, Waltraud Keiley, Marilyn McMillan, Jane Thibodeau and Mayleen Ventura v. BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF THE UNITED STATES of America and B.P.O.E., Hartford, Vermont, Lodge No. 1541 |
Robert Appel, Executive Director, Vermont Human Rights Commission, Montpelier, and Edwin L. Hobson, Burlington, for Plaintiffs-Appellants.
Norman E. Watts, Woodstock, for Defendant-Appellee Benevolent and Protective Order of the Elks, Hartford, Vermont.
Robert Reis and Matthew Anderson of Webber, Reis, Holler & Urso, LLP, Rutland, and Elizabeth A. Knight of Knight, Hoppe, Fanning & Kurnik, LLC, Des Plains, Illinois, for Defendant-Appellee Benevolent and Protective Order of the Elks of United States.
Present: AMESTOY, C.J., DOOLEY, MORSE1 and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.
¶ 1. This appeal arises out of the Washington Superior Court's summary judgment dismissal of plaintiffs' claim that defendants, Benevolent and Protective Order of Elks of the United States of America ("National Elks") and Benevolent and Protective Order of Elks, Hartford, Vermont, Lodge 1541 ("Hartford Lodge"), discriminated against them on the basis of sex in violation of 9 V.S.A. § 4502(a) when plaintiffs' applications for membership in the Hartford Lodge were denied. On appeal, plaintiffs argue that the trial court erred by: (1) ruling that the Fair Housing and Public Accommodations Act ("FHPA"), 9 V.S.A. §§ 4500-4507, does not bar membership discrimination by fraternal lodges; and (2) granting summary judgment for defendants because genuine issues of material fact still remained. We agree, and therefore reverse and remand for further proceedings consistent with this opinion.
¶ 2. This case is not about whether a genuinely private club—fraternal or otherwise—can choose to discriminate on the basis of sex in membership selection. That a private club can do so under our public accommodations statute—whatever one thinks of the merits of such a choice— is not open to doubt. See United States Jaycees v. McClure, 305 N.W.2d 764, 771 (Minn.1981) ( ). The issue before us is whether the Hartford Lodge is a private club, or is so open and nonselective in offering its facilities and privileges that it can be considered a "place of public accommodation" within the meaning of the FHPA.
¶ 3. We conclude that membership in a fraternal organization is covered by the FHPA if such membership is essentially open to the public, and we remand the case to the trial court so that the trier of fact may make the factual findings necessary for a determination of that issue. Our decision today is in conformity with the decisions of other jurisdictions, which have held that similar public accommodations statutes extend to the membership of a fraternal order in certain circumstances. See, e.g., Fraternal Order of Eagles, Inc., Tucson Aerie # 180 v. City of Tucson, 168 Ariz. 598, 816 P.2d 255, 256 (Ct.App.1991) ( ); Schellenberg v. Rochester, Michigan Lodge No. 2225, of Benevolent & Protective Order of Elks, 228 Mich.App. 20, 577 N.W.2d 163, 169 (1998) ( ); Franklin Lodge of Elks v. Marcoux, 825 A.2d 480, 485 (N.H.2003) ( ); Lahmann v. Grand Aerie of Fraternal Order of Eagles, 180 Or.App. 420, 43 P.3d 1130, 1131,review denied, 334 Or. 631, 54 P.3d 1041 (2002) ( ); Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wash.2d 224, 59 P.3d 655, 668 (2002) ().
¶ 4. Hartford Lodge is a subordinate lodge of National Elks, the largest benevolent fraternal order in America with approximately 1,200,000 members and over 2000 local lodges. At the time of plaintiffs' applications, Hartford Lodge had 1042 members. From its inception in 1868 until 1995, National Elks required all candidates for membership to be male. In 1995, the statutes of the National Elks were amended to delete this requirement. The charter of the Hartford Lodge was automatically amended to conform to the change by operation of the National Elks statutes, despite the fact that Hartford Lodge voted against the amendment. The amendment was communicated to the Hartford Lodge through mailings, a speech, a newsletter and a magazine.2
¶ 5. To qualify for membership in the Elks, an individual must be a United States citizen, at least twenty-one years of age, of good character, and must believe in God. Hartford Lodge also alleges that it adheres to an application screening process that consists of: a private invitation to visit the Lodge; several visits by the prospect to meet members; the prospect requesting and receiving a membership application; the prospect submitting an application with personal history information; the prospect pledging to pursue the organization's charitable objectives and adhere to its statutes, bylaws, obligation and other rules, rituals and procedures; an investigation of the prospect's background by a Hartford committee; approval of the investigation committee based on National's written membership criteria noted above; evaluation of the application and an investigation committee report by the full membership; subjective evaluation by the full membership of whether the prospect is "compatible"; and approval of full membership and induction with formal pledge. Plaintiffs alleged on summary judgment that Hartford Lodge had over a 99% acceptance rate for white men, and that it accepted 269 new members from 1990-99, rejecting only ten applicants. Seven of these applicants were women, including plaintiffs, and one was an African American man. ¶ 6. Hartford Elks owns and operates a large lodge facility in White River Junction. It opens these facilities to the public for weekly bingo games and rents the premises to members of the general public for private functions, such as wedding receptions which it will also cater for a fee. During the fiscal year ending in March 1996, Hartford Lodge reported $1,113,636 in gross revenue from bingo and rip-open tickets. Plaintiffs allege that National Elks received over $12,000,000 from membership dues in the year plaintiffs applied for membership, and that this constituted 80% of its earned income for the year, although these allegations are in dispute.
¶ 7. In 1996, plaintiffs Waltraud Keiley, Marilyn McMillan, Jane Thibodeau, and Mayleen Ventura applied for membership as the first female applicants to Hartford Lodge. The four women were members of the Hartford Elks Emblem Club, which holds meetings at the Hartford Lodge, at the time of their membership applications. The women were interviewed by an investigating committee and were recommended for acceptance as members. Hartford Lodge then voted on the membership applications, and rejected the female applicants but accepted the sole male applicant at that time. At a second meeting in January 1997, the women applicants again failed to receive the necessary votes and were not admitted to Hartford Lodge as members.
¶ 8. In August 1998, plaintiff Vermont Human Rights Commission and the individual plaintiffs filed this case against defendants in superior court. National Elks filed a motion for summary judgment in December 1999, and the court denied the motion on April 13, 2000 in a decision and order written by Judge Bryan. In his decision, Judge Bryan noted Vermont's "public policy commitment to eradicating sex discrimination by public establishments in this state" as demonstrated through its legislative enactment of anti-discrimination and human rights laws. The court determined that "Hartford Elks Lodge is a place of `public accommodation' because it is in the business of selling memberships to a club" and rejected National Elks' argument that it had no authority or involvement over the membership decisions of a local lodge.
¶ 9. Hartford Lodge filed a motion to reconsider the April 13th decision in which Judge Bryan determined that Hartford Elks was a place of public accommodation. Hartford Lodge argued that whether the Hartford Elks is a place of public accommodation is a disputed fact for the jury to determine. Judge Bryan declined to alter the April 13th decision, observing that He added that
¶ 10. In September 2000, plaintiff Human Rights Commission filed a motion for summary judgment. National Elks also filed a second motion for summary judgment on October 2000, followed by Hartford Lodge's motion for summary judgment, which was filed in November 2000. On October 17, 2001, the superior court ruled on the motions and dismissed the case in favor of defendants. In its order, written by Judge Katz, the court concluded that "the [FHPA] does not govern the membership of Hartford...
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