Besig v. Dolphin Boating and Swimming Club

• Decision Date: 20 August 1982
• Docket Number: No. 81-4285,81-4285
• Parties: Ernest BESIG, Preston Cook, and Lidia La Garda, Plaintiffs-Appellants, v. The DOLPHIN BOATING AND SWIMMING CLUB, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1271

683 F.2d 1271

Ernest BESIG, Preston Cook, and Lidia La Garda, Plaintiffs-Appellants, v. The DOLPHIN BOATING AND SWIMMING CLUB, et al., Defendants-Appellees.

No. 81-4285.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 1982.

Decided Aug. 12, 1982.

As Corrected Aug. 20, 1982.

Sandra Terzian-Feliz, Terzian-Feliz & Cabraser, Fairfax, Cal., for plaintiffs-appellants.

Paula Jesson, Deputy City Atty., Derek B. Jacobson, McGuinn, Hillsman & Palefsky, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, Chief Judge, WRIGHT and TRASK, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The Dolphin Boating and Swimming Club and the South End Rowing Club are nonprofit organizations, which operate for the "advancement of rowing, running, swimming and other aquatic sports." They provide boats, boathouses, and launch facilities. The buildings contain showers and sauna rooms to accommodate cold salt-water swimming activities. The clubs have lockers, handball courts, and weight lifting equipment. They sponsor public-interest and charitable events and several long distance swim competitions, including the New Year's Day Alcatraz Swim.

Since 1938 the clubs have occupied land in San Francisco commonly known as Aquatic Park. The park property is owned by the City and County of San Francisco (the City) pursuant to the state's 1923 grant of the land. The City Charter gives the San Francisco Recreation and Park Commission complete and exclusive management control over the City's park property, including that occupied by the clubs.

For most of their history, the clubs maintained discriminatory by-laws and admissions policies. Only members were permitted to use club facilities, and membership was limited. The clubs excluded all women. They required sponsors, personal interviews, and a vote of governing boards to approve an applicant for membership. These practices resulted in exclusively white, male memberships.

Located adjacent to Dolphin and South End Clubs was the now-defunct San Francisco Rowing Club. In 1974 several women applied for membership but were denied. Many of these were bay swimmers who needed a safe place to change clothes and store belongings while swimming and to shower and warm up after emerging from the bay. At the time, public facilities nearby suffered frequent vandalism and subjected users to the risk of assault and attack.

The women sued the club in state court. Arian v. San Francisco Rowing Club, No. 682-926 (San Francisco Super.Ct., filed Nov. 27, 1974). The City was named as a defendant, but the City Attorney initially believed the dispute to be solely between the club and plaintiffs, with the City carrying no responsibility for the club's discrimination. No one informed the Park Commission of the suit.

After two years without results, in 1976 the Arian plaintiffs acquired a new attorney, and the City assigned another lawyer to the case. The City Attorney's office informed the Park Commission of the litigation and conceded to plaintiffs that membership discrimination by the club was improper.

Soon thereafter the Park Commission adopted a nondiscrimination resolution, which prohibited discriminatory practices by park lessees and concessionaires. The San Francisco Rowing Club refused to comply with that resolution and was evicted.

The Dolphin and South End Clubs revised their by-laws in response to the Park Commission's nondiscrimination resolution, but increased their initiation fees and otherwise continued to discourage the admission of women members.

In December 1976, Marilyn Rodman, one of the original Arian plaintiffs, filed an action in federal district court. She sought admission to the Dolphin Club for herself and all other women who applied.

The Dolphin Club admitted Rodman in March 1977. Over the next few months, Rodman, her attorney, the City Attorney's office, and the Dolphin Club negotiated over the Dolphin Club's compliance with the nondiscrimination resolution, structural modifications to accommodate women members, and formal amendment of the club's by-laws. The parties reported periodically to the Commission, and the court monitored their progress.

By September 1977 both clubs had amended their by-laws and were in compliance with the Park Commission's nondiscrimination policy. Rodman was a member and was satisfied that her objectives had been fulfilled. The parties' protracted efforts to agree on and implement satisfactory membership procedures had been successful.

Rodman's attorney continued to press suit and to appear before the Park Commission, raising the issue of broader public access to the clubs. She advocated the transfer of the Aquatic Park property to the Department of the Interior for inclusion in the Golden Gate National Recreation Area, a plan that could have succeeded only by the removal of the clubs' buildings from the property.

When Rodman discovered her attorney's transformation of the suit from one seeking nondiscriminatory membership opportunities to one potentially requiring the termination of the clubs, she withdrew from the action.

The plan to deed the property to the Golden Gate National Recreational Area failed and was abandoned in October 1977. Consequently, the Park Commission requested advice about imposing a rental fee for the property occupied by the clubs. The resulting City Attorney Opinion, issued December 29, 1977, relied on state common law and the city charter to conclude that exclusion of nonmembers from the clubs was improper. It stated also that the clubs must adopt adequate due process safeguards.

The Park Commission on March 16, 1978 adopted Resolution 11189, which announced procedures to ensure that all private organizations using park property would comply with the City Attorney's Opinion. The Resolution prohibited the clubs from rejecting an applicant for membership except for good cause and from expelling a member without a hearing.

Resolution 11189 limits the initiation fee to an amount reasonably related to the cost of processing applications and making the facilities available to the new member. Dues may be set no higher than necessary to meet current operating expenses, with other funds to be raised by special assessment. The Park Commission provided also for nonmember access to all park property under lease to private organizations.

On the day the Park Commission adopted Resolution 11189, appellants' attorney submitted a motion to amend the complaint to substitute plaintiffs and to add defendants. On April 20, 1978, the judge permitted the filing of the amended complaint, which marked the first appearance of the Besig plaintiffs in the suit.

For the next year, the Park Commission conducted negotiations with the clubs for long-term leases of the Aquatic Park property. On July 26, 1979, it approved leases for the Dolphin and South End clubs and adopted Resolution 11734, which specifically approved a preliminary format for the clubs' operation, including nonmember access to the facilities.

Under that resolution, both members and nonmembers have access to the clubs. The fee schedule, the times the clubs are open, and other procedures differ, depending on whether the user is a member or nonmember. The clubs are open to the nonmember In contrast to nonmember access terms, members of the clubs may use their building keys for access to the facilities at any time. After paying an initiation fee of $50.00, members pay yearly dues of $156 for Dolphin and $140 for South End.

public from 9:00 a. m. to 5:00 p. m. five days a week, including weekends. They charge nonmembers $3.00 per day for access to the facilities, which entitles the nonmember to use all equipment and areas open to members except the clubs' boats. These require prior appointment, an additional charge, and proof that the user is able to use a boat safely.

The district court granted defendants' motion for summary judgment, finding the membership distinction not of constitutional dimension. It dismissed related state claims for lack of jurisdiction. ¹

The City's Recreation and Park Commission, through its lessee clubs, has established two categories of persons who may use the clubs' facilities, members and nonmembers, and has accorded different treatment to those in each classification. ² We must decide whether this disparate treatment offends the equal protection clause of the Constitution.

The Constitutional Claim

The defendants do not dispute the existence of classifications consisting of members and nonmembers. They argue that the classifications are reasonable and that they were instituted to serve appropriate governmental interests. The defendants urge us to apply the rational basis test.

The plaintiffs argue for the application of a strict scrutiny analysis. They recognize that an equal protection claim is reviewed under strict scrutiny only when the classification defines a suspect class or when it implicates a fundamental right. E.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (per curiam).

Plaintiffs do not argue that nonmembers, who suffer none of the traditional suspect indicia, are a suspect class. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1293, 36 L.Ed.2d 16 (1973). They attempt to implicate a fundamental right by arguing that the membership distinction restrains their first amendment right to association or, more precisely, their right of nonassociation.

We readily acknowledge that among the rights protected by the first amendment is that to freedom of association, NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958), and its corollary, the freedom from coerced association with groups holding views with which the nonmembers disagree. In Wooley v. Maynard, 430 U.S. 705, 714, 97...