Curran v. Mount Diablo Council of the Boy Scouts

• Decision Date: 03 October 1983
• Citation: 195 Cal.Rptr. 325,147 Cal.App.3d 712
• Court: California Court of Appeals Court of Appeals
• Parties: , 38 A.L.R.4th 607 Timothy CURRAN, Plaintiff and Appellant, v. MOUNT DIABLO COUNCIL OF THE BOY SCOUTS OF AMERICA, Defendant and Respondent. Civ. 66755.

Page 325

195 Cal.Rptr. 325

147 Cal.App.3d 712, 38 A.L.R.4th 607

Timothy CURRAN, Plaintiff and Appellant, v. MOUNT DIABLO COUNCIL OF THE BOY SCOUTS OF AMERICA, Defendant and Respondent.

Civ. 66755.

Court of Appeal, Second District, Division 7, California.

Oct. 3, 1983.

Rehearing Denied Nov. 2, 1983.

Hearing Denied Jan. 6, 1984.

Fred Okrand, Susan McGreivy, Los Angeles, Barry Copilow, Beverly Hills, George Slaff, Los Angeles, for plaintiff and appellant.

Hughes Hubbard & Reed, Malcolm E. Wheeler, Los Angeles (of counsel), Carol A. Chase, Los Angeles, for defendant and respondent.

United States Justice Foundation, William M. Crosby, Orange, amicus curiae on behalf of defendant and respondent.

THOMPSON, Associate Justice.

In this case we are called upon to determine whether the expulsion of a person from membership in the Boy Scouts on the basis of his homosexuality constitutes a violation of both the common law right of fair procedure and the Unruh Civil Rights Act (Civ.Code, § 51). We have determined that using the status of homosexuality as a basis of expulsion is substantively arbitrary and therefore violative of the common law right of fair procedure. Moreover, before homosexuality may lawfully be used as a basis to expel, a rational connection must be demonstrated between homosexual conduct and any significant danger of harm to the association resulting from the continued membership of the homosexual person. We have further determined that the Boy Scouts is a business establishment within the meaning of the Unruh Act and is therefore prohibited from all discrimination in the provision of its services. Accordingly, we have concluded the trial court improperly sustained the general demurrer without leave to amend and the judgment of dismissal in favor of defendant should be reversed.

FACTS AND PROCEEDINGS BELOW

Plaintiff Timothy Curran filed an amended complaint and petition for writ of mandate (complaint), containing two causes of action against defendant Mount Diablo Council of The Boy Scouts of America. The gist of the first cause of action is that plaintiff's expulsion from, and rejection as "Scouter" by, The Boy Scouts of America, were based not only on an unfair procedure but also on an improper reason, plaintiff's sexual preference of homosexuality. The second cause of action is for violation of plaintiff's rights under the Unruh Civil Rights Act.

From the allegations of the first cause of action of the complaint the following facts emerge. Defendant is part of the Boy Scouts of America, a congressionally-chartered corporation (36 U.S.C.A. §§ 21-29). Plaintiff was a member of defendant in good standing for over five years immediately prior to November 28, 1980, and had attained the rank of Eagle Scout. Prior to November 28, 1980, plaintiff had submitted his application to defendant to become a "Scouter" of the Boy Scouts of America. Such an application by an Eagle Scout is routinely and uniformly approved by defendant. On November 28, 1980, Quentin Alexander, Scout Executive of defendant and acting on its behalf, informed plaintiff that plaintiff was no longer a member of the Boy Scouts of America and could not have "Scouter" status because plaintiff was a homosexual and hence not a good moral example for younger scouts.

Prior to his expulsion and rejection plaintiff was not given notice or a fair opportunity to be heard. After his expulsion and rejection, plaintiff made written request to the Western Region of the Boy Scouts of America, of which defendant is a subordinate body, for an administrative review of defendant's decision. Defendant advised plaintiff that such a review would not be productive unless in fact plaintiff was not a homosexual. No other administrative remedy is available and, as a consequence thereof, all administrative remedies were exhausted.

Plaintiff further alleges in the first cause of action that membership in the Boy Scouts of America is of considerable financial value to its members in admission to institutions of higher learning, in employment, and in advancement in the business world.

In the second cause of action of his complaint, plaintiff incorporates all the allegations of the first cause of action. Plaintiff further alleges inter alia that the Boy Scouts of America is the owner of the copyright of the Boy Scouts' emblem and uniform, which are franchised to retail outlets throughout the United States. It derives great financial revenues from such franchising. In addition, the Boy Scouts of America is engaged in the book publishing business and publishes and sells a variety of books throughout the United States. Furthermore, defendant maintains a retail shop in Walnut Creek, California, where it engages in extensive commercial activities.

In addition to mandamus seeking plaintiff's reinstatement in defendant and attainment of "Scouter" status, the complaint seeks a permanent injunction barring defendant from interfering with plaintiff's rights under the Unruh Civil Rights Act and for damages.

This appeal raises the following issues:

(1) Does the first cause of action state a valid claim for wrongful denial of the common law right of "fair procedure"?

(2) Does the second cause of action state facts showing a violation of the Unruh Civil Rights Act (Civ.Code, § 51) in that (a) the Boy Scouts is a "business establishment" within the meaning of the Unruh Act and (b) plaintiff's expulsion or exclusion from defendant on the basis of his sexual preference of homosexuality, which deprives him of defendant's services, constitute a violation of the Unruh Act?

Our task on this appeal was stated by our Supreme Court in Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918, 117 Cal.Rptr. 541, 528 P.2d 357: "Our only concern in this case is whether plaintiff has succeeded in stating a cause of action. In assessing the sufficiency of a complaint against a general demurrer, we must treat the demurrer as admitting all material facts properly pleaded. [Citations omitted.] Furthermore, we bear in mind our well established policy of liberality in reviewing a demurrer sustained without leave to amend: 'the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.' "

I

THE FIRST CAUSE OF ACTION STATES A VALID CLAIM FOR WRONGFUL DENIAL OF THE COMMON LAW RIGHT OF FAIR PROCEDURE.

Plaintiff argues that defendant's action in expelling him from membership in the Boy Scouts of America and in denying him "Scouter" status on the basis of his sexual preference of homosexuality was both substantively irrational and procedurally unfair.

Under common law, relief was afforded to any individual expelled from a private association who could demonstrate (1) that the society's rules or proceedings were contrary to "natural justice," (2) that the society had not followed its own procedures, or (3) that the expulsion was maliciously motivated. (Dawkins v. Antrobus (1881) 17 Ch.D. 615; see Chafee, The Internal Affairs of Associations Not For Profit (1930) 43 Harv.L.Rev. 993, 1014-1020.)

This common law principle authorizing judicial review of expulsions from associations became part of California law before the turn of the century. (See Otto v. Tailors' P. & B. Union (1888) 75 Cal. 308, 17 P. 217.) Since then, this common law principle has been reiterated in an unbroken line of California decisions. (See, e.g., Von Arx v. San Francisco G. Verein (1896) 113 Cal. 377, 45 P. 685; Taboada v. Sociedad Espanola etc. (1923) 191 Cal. 187, 191-192, 215 P. 673; Ellis v. American Federation of Labor (1941) 48 Cal.App.2d 440, 443-444, 120 P.2d 79; Cason v. Glass Bottle Blowers Assn. (1951) 37 Cal.2d 134, 143-144, 231 P.2d 6; Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 550-553, 116 Cal.Rptr. 245, 526 P.2d 253; Ezekial v. Winkley (1977) 20 Cal.3d 267, 142 Cal.Rptr. 418, 572 P.2d 32; Hackethal v. California Medical Assn. (1982) 138 Cal.App.3d 435, 187 Cal.Rptr. 811.)

Taken together, these decisions establish that the expulsion of a person from membership in a private unincorporated association is deemed "arbitrary" and in violation of the common law right of fair procedure when the expulsion is substantively unreasonable, internally irregular, or procedurally unfair. (Ezekial v. Winkley, supra, 20 Cal.3d at p. 272, 142 Cal.Rptr. 418, 572 P.2d 32.) Procedural fairness requires "adequate notice of the 'charges' ... [and] a reasonable opportunity to respond." (Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at p. 555, 116 Cal.Rptr. 245, 526 P.2d 253.) Furthermore, an expulsion cannot properly rest on a rule which is substantively capricious or contrary to public policy. (Id., at p. 553, 116 Cal.Rptr. 245, 526 P.2d 253.)

In applying this common law protection against arbitrary expulsion, the courts use a two-step analysis. First, a judicial evaluation of the procedure followed by the association is made to determine if the procedure is fair. For example, in Hackethal v. California Medical Assn., supra, 138 Cal.App.3d 435, 187 Cal.Rptr. 811, which involved an action by an expelled member of a county medical society seeking reinstatement, the court held the society's proceedings did not meet common law standards of fair procedure. The court found that the society held hearings outside the presence of the expelled member and his counsel, denied the expelled member access to documentary evidence forming the basis of the charges, and used a standard of proof contrary to its bylaws.

Secondly, judicial inquiry is made to determine whether the expulsion rests upon a rule which is substantively capricious or contrary to public policy. For example, in Bernstein v. Alameda etc. Medical Assn. (1956) 139 Cal.App.2d 241, 293 P.2d 862, the court held that a medical society could not lawfully expel a doctor for making disparaging statements about another doctor's professional work in the...