LaBore v. Muth, No. 17318

CourtSupreme Court of South Dakota
Writing for the CourtAMUNDSON; MILLER; HENDERSON; HENDERSON
Citation62 Empl.Prac.Dec.P 42,473 N.W.2d 485
Parties62 Empl. Prac. Dec. P 42,496 Emily LaBORE, Charging Party and Appellant, v. Michael C. MUTH, President Sylvester's Inc., Respondent and Appellee, and South Dakota Division of Human Rights, Dept. of Commerce and Regulation, Responding Agency and Appellee.
Decision Date24 July 1991
Docket NumberNo. 17318

Page 485

473 N.W.2d 485
62 Empl. Prac. Dec. P 42,496
Emily LaBORE, Charging Party and Appellant,
v.
Michael C. MUTH, President Sylvester's Inc., Respondent and
Appellee,
and
South Dakota Division of Human Rights, Dept. of Commerce and
Regulation, Responding Agency and Appellee.
No. 17318.
Supreme Court of South Dakota.
Argued May 20, 1991.
Decided July 24, 1991.

Karen Gangle Sisseton, for charging party and appellant.

Danny R. Smeins, Britton, for respondent and appellee Muth.

Jeffrey P. Hallem Asst. Atty. Gen., Pierre, for responding agency and appellee; Mark Barnett, Atty. Gen., Pierre, on the brief.

AMUNDSON, Justice.

Emily LaBore (LaBore) appeals from a circuit court decision affirming a no probable cause determination issued by the State Division of Human Rights, Department of Commerce and Regulation (Department) in response to her charge of discrimination against Michael C. Muth (Muth) and Sylvester's Inc. (Sylvester's). We affirm.

FACTS

The facts of this case are undisputed. In May, 1989, LaBore initiated a civil action alleging a claim of defamation of character (slander) against Candyce Lehr and Lisa Stenvold, both whom were employees of Sylvester's. Sylvester's is a bar and restaurant located east of Britton, South Dakota, and Muth is its President. Prior to the commencement of the slander action, LaBore had been a frequent customer of Sylvester's. On June 18, 1989, when LaBore went to Sylvester's, she was told to leave or the police would be called. The reason she was told to leave the premises was that her presence in the establishment created an uncomfortable and tense situation for the employees and other patrons of the bar as a result of the pending slander suit against the two Sylvester's employees. There was no allegation that LaBore's conduct was unacceptable, that she caused any disturbances, or that she was acting in a disorderly manner while on the premises.

LaBore then brought a charge of discrimination before Department alleging that Muth and Sylvester's were guilty of adverse, unlawful, or unequal treatment regarding the availability of public accommodations, pursuant to SDCL 20-13-23. She did not allege discrimination on the basis of race, color, creed, religion, sex, ancestry, disability, or national origin. On November 3, 1989, Department issued a determination of no probable cause and a decision finding that no probable cause existed to believe that Muth and Sylvester's were in violation of the South Dakota Human Relations Act of 1972, SDCL ch. 20-13. LaBore appealed to the circuit court. The circuit court affirmed Department's decision, and this appeal followed.

ISSUES

1. Did Department and circuit court err in concluding that LaBore is not a protected person within the meaning of SDCL 20-13-23?

2. Did the action of Sylvester's Inc., by and through its president Michael C. Muth, accord adverse, unlawful, or unequal treatment to LaBore with respect to the availability of services and facilities, the scope and equality thereof, or the terms and conditions under which the same are made available to her?

ANALYSIS

1. SDCL 20-13-23.

LaBore contends that the decision of both Department and the circuit court that she is not a protected person within the meaning of SDCL 20-13-23 (the statute) is erroneous. In its decision accompanying the determination of no probable cause, Department ruled that LaBore had "not established a prima facie case as she has not shown that her harm was caused by her membership in a protected class. The

Page 487

basis for the charge is not one of those delineated by SDCL 20-13." The circuit court ruled "[t]hat LaBore's charge of public accommodation discrimination does not fall within statutory limitations" and affirmed the decision of Department.

On appeal, LaBore argues that Department and circuit court erroneously interpreted the statute to exclude her from its protection. The construction and interpretation of a statute presents a question of law. In re Famous Brands, Inc., 347 N.W.2d 882, 884 (S.D.1984). "When we are called upon to evaluate questions of law, legal conclusions of both Department and the circuit court are fully reviewable." Wessington Springs Educ. Ass'n v. Wessington Springs School Dist. # 36-2, 467 N.W.2d 101, 103 (S.D.1991) (citing Permann v. Department of Labor, 411 N.W.2d 113, 117 (S.D.1987)).

The statute reads:

It shall be an unfair or discriminatory practice for any person engaged in the provision of public accommodations because of race, color, creed, religion, sex, ancestry, disability or national origin, to fail or refuse to provide to any person access to the use of and benefit from the services and facilities of such public accommodations; or to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration therefor, the scope and equality thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair.

SDCL 20-13-23. In State ex rel. Ewing v. Prudential Insurance Co., 273 N.W.2d 111 (S.D.1978), we construed this section of the Human Relations Act in the context of an exclusion of benefits to unmarried persons for pregnancy and pregnancy-related disabilities under a group health insurance plan. 1 In reaching our decision, we observed: "The legislature's policy is clear, i.e., to eliminate discrimination based upon race, color, creed, religion, sex, ancestry or national origin in the areas of employment, labor unions, housing, education, property rights, public accommodations and public services. SDCL 20-13." 273 N.W.2d at 114 (emphasis added). We held that the exclusion at issue did not violate SDCL 20-13-23 because, although such a policy discriminates on the basis of marital status, it does not discriminate based on sex or any gender-based classification. 2

The Human Relations Act in general and SDCL 20-13-23 in particular prohibit only the types of discrimination enumerated by the statute, not all possible forms of discrimination. The definition of an unfair or discriminatory practice, as enumerated in SDCL 20-13-1(16) states:

"Unfair or discriminatory practice" means any act or attempted act which because of race, color, creed, religion, sex, ancestry, disability or national origin results in the unequal treatment or separation or segregation of any person, or denies, prevents, limits, or otherwise adversely affects, or if accomplished would deny, prevent, limit, or otherwise adversely affect, the benefit or enjoyment by any person of employment, labor union membership, housing accommodations, property rights, education, public accommodations, and public services.

(Emphasis added). By definition an unfair or discriminatory practice must be an act or refusal to act based on, or "because of," membership in one of the specified classes. This policy is further evidenced by the enacting language employed by the legislature

Page 488

when enacting the Human Relations Act of 1972:

AN ACT Entitled, An Act providing for equality of opportunity and prohibiting discriminatory practices based on race, color, creed, religion, sex, ancestry or national origin, with respect to employment, labor union membership, housing accommodations, property rights, education, public accommodations, and public services; prescribing the powers and duties of the state commission on human relations; and providing enforcement procedures and prescribing penalties and remedies for violations, and to provide an appropriation therefor, and to repeal SDCL 1-31.

1972 S.D.Sess.L. ch. 11 (emphasis added). There is no indication in the Human Relations Act that the legislature intended to prohibit any and all forms of discrimination, only those "discriminatory practices based on race, color, creed, religion, sex, ancestry [, disability] or national origin. 3 When called upon to construe statutes, this court may look to the legislative history, title, and the total content of the legislation to ascertain the meaning. In re Certification of Question of Law, 402 N.W.2d 340 (S.D.1987); Oahe Conservancy Subdistrict v. Janklow, 308 N.W.2d 559 (S.D.1981); Elfring v. Paterson, 66 S.D. 458, 285 N.W. 443 (1939).

LaBore's charge of discrimination did not assert that she was the victim of discrimination based on any of the classes set forth in the statute and listed on the complaint form. She does not contend that she is a member of any racial, ethnic, religious or other enumerated group, nor does she contend that she was asked to leave based on her gender. Notwithstanding these admitted deficiencies, LaBore asserts that she does not have to fall within one of the classes enumerated by the statute to...

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9 practice notes
  • Hamen v. Hamlin Cnty., #28671
    • United States
    • Supreme Court of South Dakota
    • February 10, 2021
    ...based on such punctuation would not conform to the spirit and purpose of such provision." SDCL 2-14-8. See also LaBore v. Muth , 473 N.W.2d 485, 489 (S.D. 1991) (holding that a phrase in a statute separated by a semicolon was dependent when the statute was read as a whole).9 We have applied......
  • Leader v. Hagen, No. 24191.
    • United States
    • Supreme Court of South Dakota
    • September 11, 2007
    ...of certain information," is significant in determining its meaning. (emphasis supplied). Argus Leader relies on LaBore v. Muth, 473 N.W.2d 485, 488 (S.D.1991) which held "[w]hen called upon to construe statutes, this court may look to the legislative history, title, and the total content of......
  • Fluth v. Schoenfelder Constr., Inc., #28116, #28146
    • United States
    • Supreme Court of South Dakota
    • August 29, 2018
    ...history, title, and the total content of the legislation.’ " Zoss , 1999 S.D. 105, ¶ 6, 598 N.W.2d at 552 (quoting LaBore v. Muth , 473 N.W.2d 485, 488 (S.D. 1991) ). The South Dakota Legislature adopted the UCATA in 1945 without comment on the meaning of the word recovery . 1945 S.D. Sess.......
  • Fluth v. Schoenfelder Constr., Inc., #28116
    • United States
    • Supreme Court of South Dakota
    • August 29, 2018
    ...history, title, and the total content of the legislation.'" Zoss, 1999 S.D. 105, ¶ 6, 598 N.W.2d at 552 (quoting LaBore v. Muth, 473 N.W.2d 485, 488 (S.D. 1991)). The South Dakota Legislature adopted the UCATA in 1945 without comment on the meaning of the word recovery. 1945 S.D. Sess. Laws......
  • Request a trial to view additional results
9 cases
  • Hamen v. Hamlin Cnty., #28671
    • United States
    • Supreme Court of South Dakota
    • February 10, 2021
    ...based on such punctuation would not conform to the spirit and purpose of such provision." SDCL 2-14-8. See also LaBore v. Muth , 473 N.W.2d 485, 489 (S.D. 1991) (holding that a phrase in a statute separated by a semicolon was dependent when the statute was read as a whole).9 We have applied......
  • Leader v. Hagen, No. 24191.
    • United States
    • Supreme Court of South Dakota
    • September 11, 2007
    ...of certain information," is significant in determining its meaning. (emphasis supplied). Argus Leader relies on LaBore v. Muth, 473 N.W.2d 485, 488 (S.D.1991) which held "[w]hen called upon to construe statutes, this court may look to the legislative history, title, and the total content of......
  • Fluth v. Schoenfelder Constr., Inc., #28116, #28146
    • United States
    • Supreme Court of South Dakota
    • August 29, 2018
    ...history, title, and the total content of the legislation.’ " Zoss , 1999 S.D. 105, ¶ 6, 598 N.W.2d at 552 (quoting LaBore v. Muth , 473 N.W.2d 485, 488 (S.D. 1991) ). The South Dakota Legislature adopted the UCATA in 1945 without comment on the meaning of the word recovery . 1945 S.D. Sess.......
  • Fluth v. Schoenfelder Constr., Inc., #28116
    • United States
    • Supreme Court of South Dakota
    • August 29, 2018
    ...history, title, and the total content of the legislation.'" Zoss, 1999 S.D. 105, ¶ 6, 598 N.W.2d at 552 (quoting LaBore v. Muth, 473 N.W.2d 485, 488 (S.D. 1991)). The South Dakota Legislature adopted the UCATA in 1945 without comment on the meaning of the word recovery. 1945 S.D. Sess. Laws......
  • Request a trial to view additional results

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