Frank v. Ivy Club

• Decision Date: 03 July 1990
• Citation: 120 N.J. 73,576 A.2d 241
• Parties: , 61 Ed. Law Rep. 622 Sally FRANK, Complainant-Appellant, v. IVY CLUB, Tiger Inn, and Trustees of Princeton University, Respondents-Respondents, and University Cottage Club, Respondent.
• Court: New Jersey Supreme Court

Page 73

120 N.J. 73

576 A.2d 241, 61 Ed. Law Rep. 622

Sally FRANK, Complainant-Appellant, v. IVY CLUB, Tiger Inn, and Trustees of Princeton University Respondents-Respondents and University Cottage Club, Respondent.

Supreme Court of New Jersey.

Argued Jan. 30, 1990.

Decided July 3, 1990.

Sally Frank, pro se.

Nadine Taub, for complainant-appellant (Nadine Taub, Newark, and Sally Frank, attorneys; Anna May Sheppard, West Orange, of counsel).

Wendy L. Mager, for respondent-respondent Trustees of Princeton University (Smith, Stratton, Wise, Heher & Brennan, Princeton, attorneys).

Susan L. Reisner, Deputy Atty. Gen., for respondent-respondent Div. on Civ. Rights (Robert J. Del Tufo, Atty. Gen., attorney).

Barbara Strapp Nelson, for respondent-respondent Ivy Club (McCarthy and Schatzman, Princeton, attorneys).

Russel H. Beatie, Jr., New York City, a member of the New York bar, for respondent-respondent Tiger Inn (Lum, Hoens, Abeles, Conant & Danzis, Roseland, attorneys).

Richard E. Shapiro, Director, Div. of Public Interest Advocacy, argued the cause for amicus curiae Public Advocate (Thomas S. Smith, Acting Public Advocate, attorney).

Denise Reinhardt submitted briefs on behalf of amicus curiae New Jersey Coalition on Civ. Rights Enforcement (Reinhardt & Schachter, Newark, attorneys).

Tanya E. Pushnack submitted a letter brief on behalf of amicus curiae Princeton Undergraduates for Co-Educated Eating Clubs (Zazzali, Zazzali, Fagella & Nowak, Newark, attorneys).

Joan Pransky submitted a brief on behalf of amici curiae American Jewish Congress, Anti-Defamation League of B'nai B'rith and Community Relations Committee of the United Jewish Federation of

MetroWest (Joan Pransky, attorney; Joan Pransky, Montclair, and Jeremy S. Garber, New York City, on the brief).

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal concerns whether the New Jersey Division on Civil Rights (Division) followed the proper administrative procedure in concluding that it had jurisdiction under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), over the Tiger Inn and Ivy Club (Clubs), all-male eating Clubs at Princeton University. Central to the resolution of the jurisdictional issue is whether the Clubs are "places of accommodation" within the meaning of LAD, or are exempt from LAD because they are "distinctly private." The Division found that the Clubs have an integral relationship of mutual benefit with Princeton which deprives them of private status and makes them subject to the Division's jurisdiction. Whether the Clubs are "distinctly private" or have lost claim to private status by their association with Princeton University is initially a factual issue. The Clubs assert that material facts remain in dispute on this issue and hence, they should have been afforded a plenary hearing before the Division determined that it had jurisdiction. The Division and plaintiff assert that there are no material facts in dispute relevant to the issue of jurisdiction.

The procedural record discloses that the parties had numerous hearings before the Division and the Office of Administrative Law at which time they presented their factual contentions and legal arguments. The Appellate Division also reviewed this case twice. Based on our examination of the record, we find that this procedure accorded the parties their administrative due process rights. Moreover, we conclude that there are no disputed facts that are material to the jurisdictional issue; hence, the Division properly invoked its jurisdiction. We also conclude that the Division properly found that the clubs discriminated against plaintiff on the basis of her gender and affirm the Division's remedies against the Clubs.

I

A. Procedural History Up To The Division's Finding of Probable Cause.

This case has a protracted history. Plaintiff, Sally Frank was a student in Princeton in 1979 when she commenced the action. She since has graduated from Princeton, finished Law School, and is now counsel of record in this case. The record consists of 31 volumes, comprising nearly 6,000 pages.

The saga began in February, 1979 when Frank filed a complaint with the Division against Princeton and three male-only eating clubs associated with Princeton, namely, Ivy Club, University Cottage Club ¹ and Tiger Inn, alleging that they had discriminated against her on the basis of her gender in violation of LAD. The Division refused to process that complaint.

In November of 1979 Frank filed another complaint, again alleging gender discrimination by the same parties. This complaint asserted that the Clubs were "public accommodations" because the Clubs functioned as "arms of Princeton. * * * " and because they were public accommodations in their own right. The Club filed answers denying that they were places of public accommodation and denying that they functioned as arms of Princeton. They claimed they were "bona fide private clubs" and therefore exempt from jurisdiction under N.J.S.A. 10:5-5%il. Princeton filed an answer denying that it was a place of public accommodation "with respect to the eating and social activities of its students." Princeton also claimed that as a factual matter, the Clubs were not part of the University.

The Civil Rights Division dismissed Frank's complaints. The Appellate Division, emphasizing that it was taking no position of the merits, vacated the Division's order because of the Division's failure to make findings of fact and to grant a hearing, and remanded the matter to the Division for further proceedings consistent with its opinion. 228 N.J.Super. 40, 548 A.2d 1142.

The Division moved for reconsideration and for a clarification of the requirements of the remand. In its motion the Division advised the court of the procedure it intended to follow on remand:

In the absence of further guidance from the Court in this case, the Division would propose initially to hold a fact-finding conference in order to determine which, if any, of the mass of facts collected by the Division are actually in dispute, and whether there are further facts which the parties wish to bring to the Division's attention. Thereafter, if there were disputed issues of material fact, it would be appropriate to hold a plenary contested case hearing to determine jurisdiction. If there are no material facts in dispute, the Division would issue a determination of jurisdiction containing appropriate findings of fact and conclusion of law, with further proceedings to be held if the Division has jurisdiction. As previously indicated, however, the Division is of course willing to follow whatever procedures the Court mandates.

(Emphasis added).

The Appellate Division denied the Motion for Reconsideration, without any guidance as to what procedure should be followed. The Division, therefore, followed the procedure outlined in its motion.

Shortly after the Motion to Reconsider was denied, James Sincaglia, Chief of the Bureau of Enforcement for the Division, brought the parties together to begin the fact-finding process. Frank served interrogatories on the Clubs and Princeton. The University responded by making hundreds of pages of documents available for inspection and copying to all parties. Many of these documents were then submitted to the Division. The Clubs served interrogatories on Frank. The parties also exchanged lists of proposed stipulations and each side noted on the other's list those stipulations that were acceptable and those that were disputed.

The Chief held two day-long fact-finding conferences in March and April, 1984. During the conferences the Chief lead the attorneys through the lists, noting those facts to which everyone agreed to stipulate and conducting a painstaking discussion on those facts disputed by the parties. In addition, the parties introduced documents, presented unsworn testimony, cross-examined witnesses and presented both oral and written legal arguments. The Chief accepted only documents that the parties agreed were authentic.

After the two-day conference hearings, the record was kept open until April 30, 1984 to allow the parties to submit additional documents. On May 31, 1984, the parties were served with the Chief's formulation of the stipulations discussed at the Conference (Accepted Stipulations and the Chief's Rulings). In his letter the Chief stated that "your review of these rulings will demonstrate that sufficient evidence existed in the record to issue Findings on the disputed stipulations. Therefore, no material facts remain in dispute. You will be expected to raise any objections to the stipulations and rulings not previously proffered within ten days."

The stipulations fell into three categories:

(1) Stipulations accepted as proposed;

(2) Stipulations not accepted as proposed but resolved by the Division on the basis of evidence (mostly documentary) submitted by the parties; and

(3) Stipulations neither accepted nor rejected because they required legal conclusions of the kind that would be made by the Division upon review of the entire record.

The vast majority of the stipulations were accepted as proposed. Of 39 stipulations proposed by Sally Frank, 29 were accepted. Eight fell into the second category and two fell into the third category. The Clubs submitted 191 stipulations. 180 were accepted, ten fell into the second category and one required resolution by the Division upon review of the entire record. Thus, over 200 stipulations were accepted as proposed. It is the eighteen stipulations that fell into the second category of stipulations--those disputed by the parties but resolved by the Chief on the basis of documentary evidence, unsworn witness testimony and discussions at the Conference that give rise to the controversy underlying this appeal.

The parties filed comments and objections to the Chief's proposed rulings. The entire record was then transferred to the Director. The parties submitted...