McFadden v. Elma Country Club

• Decision Date: 23 May 1980
• Docket Number: No. 3395-II,3395-II
• Citation: 613 P.2d 146,26 Wn.App. 195
• Parties: Suzanne McFADDEN and Patrick D. Sloan, Appellants, v. The ELMA COUNTRY CLUB, a nonprofit Washington Corporation, and Arthur Hayes and M. Wagenblast, Respondents, L. Edward Brown, Respondent and Cross-Appellant.
• Court: Washington Court of Appeals

Page 195

26 Wn.App. 195

613 P.2d 146

Suzanne McFADDEN and Patrick D. Sloan, Appellants, v. The ELMA COUNTRY CLUB, a nonprofit Washington Corporation, and Arthur Hayes and M. Wagenblast, Respondents, L. Edward Brown, Respondent and Cross-Appellant.

No. 3395-II.

Court of Appeals of Washington, Division 2.

May 23, 1980.

Alan Rasmussen, Spanaway, for appellants.

Ted F. Zelasko, Aberdeen, for respondents.

PEARSON, Acting Chief Judge.

Suzanne McFadden and Patrick Sloan appeal from an order granting summary judgment to the Elma Country Club. The only issue before this court is whether the respondent country club discriminated against McFadden on the basis of her sex or marital status in violation of RCW 49.60.222 when she was denied membership in the country club. After reviewing the history and purpose of RCW 49.60, we hold the trial court properly determined, as a matter of law, that there was no violation of RCW 49.60.222 by respondents.

McFadden and Sloan lived together in Tacoma for 2 years before July of 1977, when they signed an earnest money agreement to purchase the home of Dolores Sagen, located on Elma Country Club property. Sagen informed the Club's board of directors that she proposed to sell her share of stock, carrying with it the right to possession of a lot within the boundaries of the Club. The Board asked to meet with the purchaser pursuant to article 3 of their by-laws, providing:

Each member of the Club shall hold at least one share of the stock of the Corporation and shall not sell, transfer or encumber the same without first submitting the name of the person who is purchasing, to the Directors for the purpose of having such person elected to membership in the Club. If the Board of Directors shall decide that such person is not satisfactory and shall fail to elect him to membership such sale or transfer shall not be made.

The Board was not informed that an earnest money agreement had already been signed, but they received a letter from Suzanne McFadden stating, "I am in the process of buying the Sagen house." ¹ The letter also stated, "My fiance's mother has a cabin in the Lost Lake Country Club." On meeting with Ms. McFadden and Mr. Sloan, the Board learned that they were not actually engaged, but intended to live together year round on Club property. McFadden applied for Club membership in her own name; Sloan did not.

The Board met on August 3, 1977, and the members present voted unanimously to deny McFadden's application on the basis of her "living arrangement." The president notified her by letter of August 5, 1977, explaining:

The Board was satisfied that a majority of the members did not approve granting your application, and that to do so would not be consistent with the intent and purposes of our by-laws and articles of incorporation. This was not an easy decision for the Board to make it's the first time this situation has come up.

McFadden's attorney wrote to the president on August 8, demanding reconsideration of McFadden's application. The president wrote back and reiterated the Board's decision, referring to the Club's by-laws

which provide that no immoral practices shall be permitted on Club property; the Board is of the opinion that a majority of the members consider such a living arrangement is immoral, and not an example we want to set for our children, and grandchildren, especially by approving same for a member.

No other applications for Club membership had been denied in the preceding 2 years. The only purpose of the Club is ownership and management of the real estate around Lost Lake on behalf of the shareholders.

McFadden and Sloan brought suit for an injunction to compel the country club's directors to grant McFadden membership in their corporation, and for money damages, on the basis that the Club's actions violated RCW 49.60.222. That statute makes it an unfair practice for any person to refuse to engage in a real estate transaction with another because of sex or marital status. ² The Club denied such discrimination, and cross-motions for summary judgment were filed. There was no dispute as to the facts set forth above; the only issue between the parties was the applicability of RCW 49.60.222 to those facts. The trial court entered summary judgment for the Club and dismissed the complaint by McFadden and Sloan, resulting in their appeal to this court.

Summary judgment should be granted only when no genuine issues of material fact are before the court in the record and the moving party is entitled to judgment as a matter of law. Adamski v. Tacoma Gen. Hosp., 20 Wash.App. 98, 579 P.2d 970 (1978). In the present case, the trial court preliminarily expressed recognition of a factual issue whether the country club was private, but granted summary judgment on the assumption that the laws against discrimination would apply whether or not it was private. RCW 49.60.040, which defines terms used in the law against discrimination, contains a definition for places of "public resort, accommodation, assemblage or amusement" followed by a proviso:

That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations, though where public use is permitted that use shall be covered by this chapter;

Significantly, this proviso was amended in 1979 to contain the phrase "nothing contained in this definition " instead of the former phrase, "nothing contained herein." (Italics ours.) While "herein" could arguably be construed as applying to the entire chapter, a legislative intent to limit the private club exception to places of public resort can be presumed from the 1979 limitation to "this definition." See Strunk v. State Farm Mutual Auto. Ins. Co., 90 Wash.2d 210, 580 P.2d 622 (1978); In re Jackson, 89 Wash.2d 945, 578 P.2d 33 (1978). Express mention of one thing in a statute implies exclusion of another, and where a statute expressly designates the things to which it refers, there is an inference that all omissions were intended by the legislature. State v. Seger, 1 Wash.App. 516, 463 P.2d 185 (1969). Therefore a private club is exempt from the discrimination laws applicable to places of public resort, accommodation, assemblage or amusement, but not from the discrimination laws applicable to real estate transactions. ³ We hold the trial court correctly determined that the country club's private character was not an outcome determinative issue under the present statute. See Ohler v. Tacoma Gen. Hosp., 92 Wash.2d 507, 598 P.2d 1358 (1979).

The next issue is whether the country club and Suzanne McFadden were involved in a real estate transaction within the meaning of RCW 49.60.222. A grant of membership in the Elma Country Club carries with it the right to exclusive possession, use and occupancy of a Club-owned lot, and the sole purpose of the Club is the ownership and management of such lots. RCW 49.60.040 provides that a " 'Real estate transaction' includes the sale, exchange, purchase, rental, or lease of real property." (Italics ours.) This definition is illustrative, but not exclusive. The Human Rights Commission, which was created by RCW 49.60.010 to carry out the purpose of the law against discrimination, stated in its Declaratory Ruling No. 9 on April 18, 1974:

When R.C.W. 49.60.222 was originally proposed and enacted in 1969 it was intended to be comprehensive, that is, to cover every possible real property transaction without exception.

Thus, while the transfer of country club property which follows the transfer of a membership share is not a conventional "sale or exchange," it is, we think, a real estate transaction within the broad meaning of that term in RCW 49.60.

Now we turn to the pivotal issue of whether the denial of McFadden's application for membership constituted discrimination on the basis of her marital status. RCW 49.60.222 was originally limited to discrimination because of race, creed, color, or national origin. It was amended in 1973 to add discrimination because of sex or marital status to its coverage. At that time RCW 9.79.120 provided in pertinent part:

Every person who shall lewdly and viciously cohabit with another not the husband or wife of such person, . . . shall be guilty of a gross misdemeanor.

Such cohabitation was punishable by a jail term of up to one year or a fine of $1,000 or both. ⁴ RCW 9.79.120 remained in effect until 1976, 3 years after the amendment of RCW 49.60.222 to cover marital status discrimination. Statutes are to be construed in accordance with legislative intent, and courts are required to view statutes as if the legislature has considered its prior enactments. State v. Pawling, 23 Wash.App. 226, 597 P.2d 1367 (1979). The existence of the illegal cohabitation statute for 3 years after the amendment of RCW 49.60.222 would seem to vitiate any argument that the legislature intended "marital status" discrimination to include discrimination on the basis of a couple's unwed cohabitation.

Furthermore, in 1975 the legislature responded quickly to a Human Rights Commission ruling ⁵ that it was an unfair practice under RCW 49.60.222, as it was then worded, for a college to permit occupancy of its student housing units by married couples, but not unmarried couples. In response, the legislature promptly amended RCW 49.60.222, declaring it not to be an unfair practice or a denial of civil rights for such discrimination to occur in the colleges of this state. Plaintiffs contend that the fact that this amendment did not extend beyond the college setting shows a legislative intent to prohibit discrimination of this kind in other areas. We do not agree. While the amendment purports to address only the imminent college housing problem created by the Commission's ruling, we believe the declaration in the amendment expresses a broader public policy against protection of...