Kiwanis Club of Great Neck, Inc. v. Board of Trustees of Kiwanis Intern.
| Decision Date | 17 May 1976 |
| Parties | KIWANIS CLUB OF GREAT NECK, INC., et al., Appellants, v. BOARD OF TRUSTEES OF KIWANIS INTERNATIONAL et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Carol Eve Casher, Garden City, for appellants.
Curtis, Hart & Zaklukiewicz, Merrick (Reid A. Curtis and Edward J. Hart, Merrick, N.Y., on the brief), for respondents.
Before GULOTTA, P.J., and MARTUSCELLO, LATHAM, COHALAN and SHAPIRO, JJ.
MEMORANDUM BY THE COURT.
In an action Inter alia to declare that (1) the revocation order or directive issued by defendant Kiwanis International with respect to the charter of plaintiff Kiwanis Club of Great Neck, Inc. was issued in violation of law and (2) the resolution adopted by the Kiwanis Club of Great Neck, Inc. allowing women to become members is lawful, plaintiffs appeal from a judgment of the Supreme Court, Nassau County, entered November 21, 1975, which, Inter alia, (1) denied plaintiffs' motion for a preliminary injunction and (2) declared that Kiwanis International is a private club and that its policy of restricting membership to men only is a valid restriction.
Judgment affirmed, with $50 costs and disbursements.
Plaintiffs have failed to raise any substantial question of fact which requires a trial of the action. The record indicates that Kiwanis International is a private organization or club, not subject to the constitutional standards of the Fourteenth and Fifth Amendments to the United States Constitution or to the provisions of the Federal Civil Rights Act of 1964 (U.S.Code, tit. 42, § 2000a Et seq.) (see Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627; New York City Jaycees v. United States Jaycees, 2 Cir., 512 F.2d 856; Junior Chamber of Commerce of Rochester v. United States Jaycees, Tulsa, Okla., 10 Cir., 495 F.2d 883). We have also considered plaintiffs' arguments that the discriminatory membership practice in question violates the New York Human Rights Law and the General Business Law of New York, and find them to be without merit.
SHAPIRO, J., dissents and votes to reverse the judgment, grant the plaintiffs' application for a preliminary injunction, and to remand the action to the Supreme Court for further proceedings in accordance with the following memorandum:
The Kiwanis Club of Great Neck, Inc. (Great Neck) and its four female members brought this action for a declaratory judgment against the New York District of Kiwanis International and the Board of Trustees of Kiwanis International (the International) to nullify the provisions of the constitution and by-laws of the International, which restrict membership to men. They also sought a preliminary injunction (1) restraining the International from effectuating an order issued by it revoking Great Neck's charter because it had adopted and implemented a resolution allowing women to become members and (2) directing the defendants to reinstate Great Neck as a full member and to restore to it all privileges to which it was entitled by reason of its association with Kiwanis International.
Special Term denied plaintiffs' motion for a preliminary injunction and, upon defendants' cross motion for dismissal of the complaint, declared that the 'men' membership restriction was valid. This court is upholding that determination. I am in complete disagreement with Special Term's holding and this court's affirmance thereof, believing, as I do, that there is at least a question of fact as to the validity of the 'male' restriction provisions and that, therefore, the preliminary injunction sought by plaintiffs should be granted so that the Status quo may be maintained until after a trial of the issues is had.
The major issue on this appeal is whether the judgment appealed from, which holds that the revocation order and directive issued by the International with respect to the charter of the plaintiff club was properly issued, involved State action, thus denying the plaintiffs the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. A second issue is whether the Kiwanis International is in fact a private club so that its denial to women of membership in its affiliate local clubs because of their sex, with concomitant effect on the ability of those so excluded to participate profitably in a business or profession, violates State and Federal guarantees against such discrimination by other than private clubs. A third issue is whether, in determining on the basis of the affidavits of the parties that the International is a private club and therefore free to use a discriminatory qualification limiting eligibility for membership to men only, Special Term committed error, since the fact question of whether the International is a private club rather than an organization which acts as a forum in which members seeking business and professional opportunities meet and advance their individual corporate, economic and commercial interests is put into serious factual dispute by those affidavits.
Great Neck is a corporation organized under the laws of the State of New York. The four female plaintiffs are members of Great Neck's complaint charges that the International's revocation of its charter violated the public policy and laws of the United States and of the State of New York including, but not limited to, titles II and VII of the Federal Civil Rights Act of 1964 (U.S.Code, tit. 42, § 2000a Et seq.) and section 340 of the General Business Law and article 15 (Human Rights Law) of the Executive Law of the State of New York.
Great Neck, which was a chartered local club of the Kiwanis International, within its Long Island North Division of its New York District of Kiwanis International. On October 1, 1973 plaintiff Great Neck accepted the four individual plaintiffs as members and, on January 3, 1974, it adopted a resolution which permits women to become members. The defendants thereafter notified Great Neck that it was in violation of the International's constitution and by-laws and that a hearing would be held before the Board of Trustees of the International on April 27, 1974. Prior thereto the International returned to Great Neck the magazine subscriptions paid for by the women plaintiffs as well as their membership dues. After the hearing, the International notified Great Neck that its charter was being revoked. On July 16, 1974 Great Neck appealed the revocation to the 1975 convention of the International. That appeal, which exhausted Great Neck's remedies within the International, was denied. Under the International's constitution and by-laws, after there is a final determination that a charter should be revoked, the International, if the club is incorporated, has the right to petition the appropriate court for an order of dissolution of the local organization.
In support of the motion for a preliminary injunction, Jack Perlman, the president of Great Neck, by affidavit, contended that the provisions of the International's constitution and by-laws which barred women from membership in member clubs incorporated or operating in New York State were null and void because they violate the public policy and laws of the State, which bar discrimination against women, by excludi them from Kiwanis clubs, which 'are an integral part of the commercial community in which such members of the female sex must compete.' The same affidavit notes that section 4 of article IV of the constitution and by-laws of Kiwanis International provides:
'Upon final determination of revocation of the charter, and if the club is incorporated, said corporation shall be dissolved in accordance with local statutes; or in the event the corporation is not dissolved within one hundred and twenty (120) days, Kiwanis International has the right To petition and obtain proper orders of dissolution' (emphasis supplied).
Florence Bromley, one of the individual plaintiffs, also submitted an affidavit in support of the motion for a preliminary injunction in which she stated that she is a licensed real estate broker in Great Neck, that her reasons for becoming a member of the Kiwanis Club of Great Neck, Inc. were to serve the community in which she conducted her business and to make 'commercial and business contacts' within the setting of a service club and that she had thereby 'made valuable business contacts and associations, all of which have furthered the development of her business within the community.'
Defendants cross-moved to dismiss the complaint for failure to state a cause of action and/or for summary judgment. Their attorney's supporting affidavit quotes (with certain apparent inaccuracies) from article II of the International's constitution, which reads:
'Section 1. The Objects of Kiwanis International shall be:
To give primacy to the human and spiritual, rather than to the material values of life.
To encourage the daily living of the Golden Rule in all human relationships.
To promote the adoption and the application of higher social, business, and professional standards.
To develop, by precept and example, a more intelligent, aggressive, and serviceable citizenship.
To provide, through Kiwanis clubs, a practical means to form enduring friendships, to render altruistic service, and to build better communities.
To cooperate in creating and maintaining that sound public opinion and high idealism which make possible the increase of righteousness, justice, patriotism and good will.'
He then argues that these 'idealistic and spiritual' objects have 'nothing to do with business or commerce in a direct fashion', overlooking or disregarding the fact that the International's constitution, Inter alia, declares that one of the purposes of its creation is encouraging 'the adoption and application of higher * * * business and professional standards' and 'to...
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