Franklin Lodge of Elks v. Marcoux
| Decision Date | 13 June 2003 |
| Docket Number | No. 2002–571.,2002–571. |
| Citation | 825 A.2d 480,149 N.H. 581 |
| Parties | FRANKLIN LODGE OF ELKS, v. Sally MARCOUX & a. |
| Court | New Hampshire Supreme Court |
Seufert Professional Association, of Franklin (Christopher J. Seufert on the brief and orally), for the petitioners.
Matthew J. Lahey, P.A., of Laconia (Matthew J. Lahey on the brief and orally), for the respondent.
The respondent, Franklin Lodge of Elks (Franklin Lodge or Lodge), appeals from an order of the Superior Court (McGuire , J.) affirming a decision of the New Hampshire Commission for Human Rights (commission) which awarded the petitioners, Sally Marcoux, Terry Bergeron–Hoyt, Renee LaBonte and Joann LaBonte, compensatory damages for the Lodge's discrimination against them. See RSA 354–A:17 (Supp.2002). We affirm.
The following facts are undisputed. Franklin Lodge is a local chapter of a nationwide benevolent organization which raises money to donate to various charities. During the relevant time frame, the national organization had 2,000 lodges with a total membership of almost 1,200,000. Franklin Lodge had approximately 622 members, none of whom was a woman, and was located in a community with a population of more than 8,000.
The Lodge conducts various social and fund-raising activities throughout the calendar year. It sponsors weekly bingo games that are open to the public, and leases its premises to members for private functions (such as wedding receptions) and to various organizations for special events. It also operates an on-site bar and grill where members can purchase food and alcoholic beverages for themselves and their guests. According to Lodge policy, a guest can visit the bar and grill three times but then must be encouraged to apply for membership.
Membership dues generated approximately $30,000 in 1996. The Lodge's annual budget in the same year was $148,000, which included its fixed, administrative and maintenance expenses. Thus, the Lodge's financial survival depended upon the revenue generated from its various commercial activities. For example, in 1996, the weekly bingo games brought in more than $10,000, while the bar and grill sales generated $43,000 in income. To accomplish its various activities, the Lodge relied upon the Emblem Club, a "women's auxiliary" organization it sponsored comprised primarily of the wives of Lodge members. Club members also volunteered their time to the Lodge activities, including fund-raising.
To qualify for membership in the Lodge, an individual must be a citizen of the United States, believe in God, be at least twenty-one years of age, be of good character and not be a Communist. Formerly, membership was limited to men, but in 1995, the national organization removed the gender barrier. The national Elks organization maintains a home page on the Internet informing interested parties how to locate a local lodge and apply for membership. Applications to a local lodge are reviewed by a committee which interviews each candidate and makes recommendations on admission. Thereafter, the local lodge members vote to accept or reject the applicants for membership. Initially, all applicants appear on a block ballot. If the block ballot is rejected, then single ballots are presented for each individual candidate. A two-thirds majority is necessary to approve an applicant for membership.
In 1997, the petitioners applied for membership in the Franklin Lodge after having served as Emblem Club members for several years. The investigating committee approved their applications. In April 1997, a block ballot containing their names, along with that of one other woman and five men, was presented to the membership. The block was rejected. After individual ballots were distributed, the five men were accepted while the five women were rejected. A subsequent ballot for the women was again unsuccessful. During this time frame, several Lodge members expressed substantial resistance to women becoming members and made lewd, demeaning, sexually explicit remarks to and about the petitioners.
The petitioners filed charges with the commission alleging unlawful gender discrimination by a place of public accommodation. See RSA 354–A:17. After conducting a public hearing, the commission ruled that Franklin Lodge was a place of public accommodation and that it failed to prove that it qualified for an exemption as a "distinctly private" organization. See RSA 354–A:2, XIV (Supp.2002). It determined that the Lodge had engaged in unlawful gender discrimination by denying membership to the petitioners and had subjected them to ongoing verbal and sexual harassment by the actions of several of its members. It awarded each petitioner $10,000 in compensatory damages, along with reasonable and necessary attorney's fees and costs. See RSA 354–A:21, II(d) (Supp.2002). It also ordered the Lodge to pay $24,000 in administrative fines. See id.
The Lodge appealed the commission's decision to the superior court. See RSA 354–A:22 (Supp.2002). Because the Lodge did not challenge the commission's factual findings, the court reviewed only issues of law and affirmed the commission's decision. This appeal followed.
The Lodge argues that its organization does not fall within the scope of the public accommodations law, that the compensatory damages awarded were unsupported by the evidence and erroneous as a matter of law, and that our State Constitution limits each petitioner's damages to $1,500. We address each argument in turn.
Under New Hampshire law, a place of public accommodation is prohibited from discriminating against individuals based upon specific characteristics, including gender, with respect to the accommodations, advantages, facilities or privileges it provides. RSA 354–A:17. The purpose of the law is to ensure that publicly offered goods and services, such as those of a hotel or restaurant, are available to individuals regardless of gender or other protected characteristics. RSA 354–A:1 (Supp.2002). To be subject to the statute's proscriptions, an organization or establishment must be a "place of public accommodation." See RSA 354–A:17. That term is defined to include a nonexclusive list of entities, such as hotels, barbershops, restaurants and golf courses, as well as any "other establishment[s] which cater[ ] or offer [ ] [their] services or facilities or goods to the general public" (catch-all category). RSA 354–A:2, XIV. The statute provides, however, that "[p]ublic accommodation shall not include any institution or club which is in its nature distinctly private." Id. (quotation omitted).
The Lodge does not contest that it denied membership to the petitioners based solely upon their gender. It advances several arguments, however, challenging its status as a "place of public accommodation." First, it contends that it is not similar to the entities specifically listed in the "place of public accommodation" definition and that the catch-all category does not extend to membership in a club or organization. Next, it claims that its organization falls within the "distinctly private" exemption. Finally, it argues that it is not a "place of public accommodation" for purposes of the discriminatory conduct charged by the petitioners. This last argument asks us to treat the Lodge as a bifurcated entity; that is, a place of public accommodation for activities open to the general public (e.g. , bingo games), but a "distinctly private" organization for activities exclusive to members (e.g. , access to the bar and grill and voting on Lodge matters like membership).
When construing the meaning of a statute, we are the final arbiter of the legislature's intent. Appeal of Estate of Van Lunen , 145 N.H. 82, 86, 750 A.2d 737 (2000). We begin our task by examining the language of RSA 354–A:2, XIV, and ascribing the plain and ordinary meaning to the words used by the legislature. Id. We do not consider words and phrases in isolation, however, but within the context of the statute as a whole. Pennelli v. Town of Pelham, 148 N.H. 365, 366, 807 A.2d 1256 (2002). This enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id. Indeed, "it is especially appropriate to consider the evil or mischief the statute was designed to remedy." Rix v. Kinderworks Corp., 136 N.H. 548, 550, 618 A.2d 833 (1992) (quotation omitted). Because the interpretation of a statute is a question of law and no facts are disputed in this case, we review the trial court's decision de novo . See Pennelli, 148 N.H. at 366, 807 A.2d 1256.
We first address whether the statutory definition of "place of public accommodation" is intended to reach the membership practices of an organization like the Lodge. We acknowledge that the Franklin Lodge, as a membership organization, is not easily analogized to the array of entities specifically listed in RSA 354–A:2, XIV, which are essentially commercial enterprises like a hotel or sports arena, more commonly understood as offering patronage to the general public. See RSA 354–A:2, XIV. When considering, however, whether the Lodge falls within the catch-all category of an establishment that "caters or offers its services or facilities or goods to the general public," we are mindful of the legislative directive to broadly interpret the statutory scheme to effectuate its purpose. See RSA 354–A:25 (1995). The only limiting language on this otherwise expansive category is the exclusion of entities which by their nature are "distinctly private." This exemption demonstrates the legislature's intent to preserve nondiscriminatory access to ostensibly private organizations that otherwise offer their facilities, services or goods to the general public. See Lahmann v. Fraternal Order of Eagles, 180 Or.App. 420, 43 P.3d 1130, 1135, review denied , 334 Or. 631, 54 P.3d 1041 (2002) (...
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