Kansas Human Rights Com'n v. Topeka Golf Ass'n, 69029
| Decision Date | 16 July 1993 |
| Docket Number | No. 69029,69029 |
| Citation | 18 Kan.App.2d 581,856 P.2d 515 |
| Parties | KANSAS HUMAN RIGHTS COMMISSION, Appellant, v. TOPEKA GOLF ASSOCIATION, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The authority to declare the public policy of this State is vested in the legislature, not in an administrative agency.
2. The power to "adopt, promulgate, amend and rescind suitable rules and regulations" conferred by K.S.A. 44-1004(3) is an administrative and not a legislative power. To be valid, a regulation must be within the authority conferred by statute. A regulation which goes beyond that which the legislature has authorized, which violates the statute, or which alters, extends, or limits the source of its legislative powers is void.
3. Under the terms of K.S.A. 44-1002(h), a nonprofit social association or corporation is not a "public accommodation," and the Kansas Human Rights Commission has no jurisdiction over such an organization.
4. The legislature has reserved unto itself the right to limit or define which nonprofit social associations or corporations are subject to the jurisdiction of the Kansas Human Rights Commission.
5. K.A.R. 21-46-2 is an attempt by the Kansas Human Rights Commission to exercise legislative power and to declare the public policy of this State. The enactment of such a regulation is beyond the authority granted to the KHRC, and the regulation is void.
6. The Kansas Human Rights Commission has no jurisdiction to fine or penalize a nonprofit social association or corporation, which does not come within the definition set forth in K.S.A. 44-1002(i), for discriminatory actions and practices.
Judy Fowler, of Kansas Human Rights Com'n, Wichita, for appellant.
William E. Enright, of Scott, Quinlan & Hecht, Topeka, for appellee.
Before BRISCOE, C.J., and LEWIS and PIERRON, JJ.
This is an appeal by the Kansas Human Rights Commission (KHRC) from adverse rulings by the district court.
This review is the culmination of an action began by Kelly Muxlow against the Topeka Golf Association (TGA), a/k/a Topeka Men's Golf Association. In 1988 and 1989, Muxlow filed a total of four complaints against the TGA before the KHRC. These complaints alleged that the TGA had unlawfully discriminated against Muxlow by refusing her membership and the right to play in their golf tournaments because of her sex. The TGA responded to the complaints filed by Muxlow by asserting that the KHRC had no jurisdiction over the TGA.
After the hearing was concluded, the KHRC found that it did have jurisdiction over the TGA. It also found that the TGA had violated the provisions of K.S.A. 44-1009 by unlawfully discriminating against Muxlow because she was a female. The KHRC assessed a $6,000 fine against the TGA for its unlawful discriminatory practices. The TGA did not seek judicial review of this decision.
The KHRC has no power to enforce payment of the fines and penalties assessed. The TGA refused to pay the fine levied.
The present action was instituted by the KHRC in the district court, seeking to enforce its order assessing $6,000 in fines and penalties against the TGA. The district court refused to enforce the order, finding that the KHRC had no jurisdiction over the TGA. The KHRC appeals the district court's decision that it had no jurisdiction over the TGA. We affirm the decision of the district court.
Muxlow is a resident of Topeka and is a golfer of some repute. Muxlow cannot simply be designated as a good "female golfer." She is a good golfer and capable of competing successfully with both men and women. Indeed, Muxlow played in a TGA tournament in 1987. She and her husband played in the city "two-man" tournament as a team, won the first flight, and received a plaque and a gift certificate. Muxlow also worked for a period of time as an assistant golf pro at a Topeka public golf course and, for some period of time, was considered to be a professional golfer. The record shows that her amateur status was later officially restored.
The TGA was organized for the purpose of promoting golf within the City of Topeka. Its purpose is to promote "good fellowship" among the various clubs, their members, and other golfers of the city. The TGA is a nonprofit corporation and was granted nonprofit status by the IRS in 1964; it has maintained that status to the present date. Although not specified in the record, we assume that its nonprofit status was obtained and is maintained under § 501(c)(7) (1988) of the Internal Revenue Code. That section provides for exempt, nonprofit status for "[c]lubs organized for pleasure, recreation, and other nonprofitable purposes, substantially all of the activities of which are for such purposes and no part of the net earnings of which inures to the benefit of any private shareholder."
There is apparently no question that the TGA qualifies under the definition cited above. The district court found that "[n]o officer or member of the Topeka Men's Golf Association profited in any way from the operation of the Association." The KHRC does not appeal from that factual finding.
During the relevant times disclosed by the record, the TGA did not: (a) own a golf course; (b) own any kind of public facilities; (c) own, operate, lease, or manage a public facility of any kind; or (d) act as an agent or employee for any place of public accommodations.
The sole function of the TGA was to arrange for and conduct golf tournaments for its members on various golf courses within the City of Topeka. Membership in the TGA was obtained by filling out a membership card/application and by sending the application along with a $3.00 fee to the TGA. Muxlow became a member of the TGA in 1987 by following this procedure.
Although the Topeka Golf Association occasionally refers to itself as the Topeka Men's Golf Association, we shall refer to it in this opinion as the TGA. The problem relevant to this opinion developed in November 1987 when section five of the bylaws of the TGA was amended to read as follows: "With the exception of the Junior Tournaments and the Bill Mohr Memorial Tournament, TGA Tournaments are men's events." (Emphasis added.)
Despite the fact that Muxlow had been a member in 1987, she was denied membership in the TGA in 1988 and 1989. During 1988 and 1989, Muxlow was advised in four separate incidents that, because she was female, she would not be allowed to play in TGA tournaments. These four incidents form the basis of the complaints Muxlow filed before the KHRC.
There is only one basic issue on this appeal: Did the KHRC have jurisdiction over the TGA in the proceedings in which the $6,000 in fines and penalties were levied? This issue can be separated into two basic questions: (1) Did the KHRC have the authority to enact K.A.R. 21-46-2 on which it based its finding that it had jurisdiction over the TGA? (2) If K.A.R. 21-46-2 is not valid, is the TGA a nonprofit fraternal or social association or corporation as that term is used in K.S.A. 44-1002(h)? In this opinion, we will limit our discussion to the question of whether the TGA is a nonprofit social association or corporation. There is no claim that the TGA is a fraternal association.
The issue before this court is narrowly defined. Our question is whether the KHRC had jurisdiction over the TGA. If it did, its assessment of fines and penalties was valid and the order of the district court should be reversed. If it did not, then its orders were void and the district court must be affirmed.
We emphasize that we are not required to determine whether the TGA discriminated against Muxlow because she was female. The KHRC found that the TGA did discriminate against Muxlow on that basis. That finding was not appealed and is binding upon this court as well as the parties to the action. We take it as an established fact that the TGA did discriminate against Muxlow on the basis of her sex.
Not all discrimination has been made unlawful by our legislature. While arguably discrimination is morally and ethically objectionable, only certain types of discrimination are designated as unlawful. If the KHRC was not given jurisdiction over groups such as the TGA, then such groups may, by legislative fiat, discriminate without interference by the KHRC. Such a conclusion is not an endorsement of discriminatory action by this court. It is a simple recognition that the legislature has not seen fit to allow the KHRC to punish a particular organization for an act of discrimination. The legislature has provided that nonprofit social associations or corporations are not subject to the Kansas Act Against Discrimination, with some very narrowly defined exceptions.
There are multiple state and federal agencies whose job is to seek out and punish acts of discrimination deemed unlawful by our legislative bodies. These various agencies have certain defined areas of jurisdiction. Actions by an administrative body taken against organizations over which they do not have jurisdiction are void. This fact does not grant legitimacy to the discriminatory action. It merely recognizes that the law has not given the agency in question the authority to punish the acts of discrimination by that particular organization.
We note that the KHRC has suggested that if it has no power to punish discrimination by the TGA, then that organization is free to discriminate, not only on the basis of sex but on the basis of race, creed, color, or national origin. While it may be true that the KHRC has no power to punish the TGA for discriminatory acts, our decision goes no further than that. The acts of discrimination by the TGA are not legitimized by the fact that the KHRC has no jurisdiction over the TGA.
As an example, we note that an organization such as the TGA would lose its I.R.C. § 501(c)(7) exemption should it discriminate against any person on the basis of race, color, or religion. IR Manual 7(10)G-40, 3/30/79. Thus,...
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