University Club v. City of New York, 86 Civ. 2330 (GLG).

• Decision Date: 17 March 1987
• Docket Number: No. 86 Civ. 2330 (GLG).,86 Civ. 2330 (GLG).
• Citation: 655 F. Supp. 1323
• Parties: The UNIVERSITY CLUB, Plaintiff, v. The CITY OF NEW YORK, the New York City Commission on Human Rights, and Dr. Marcella Maxwell, S. Ted Antholes, Rabbi Jacob Bronner, Joyce Hunter, Glen Lau-Kee, James B. Levin, Wittie McNeil, LeRoy E. Pagano, Lydia Riviero, Julia Gared de Rodriguez, Helga Weiss Tanenbaum, Boleslaw Wierzbianski, and Andrew Wolf, Defendants. The UNION LEAGUE CLUB, Plaintiff, v. The CITY OF NEW YORK, Edward I. Koch, the Mayor of the City of New York, and the City Commission on Human Rights, Defendants.
• Court: U.S. District Court — Southern District of New York

655 F. Supp. 1323

The UNIVERSITY CLUB, Plaintiff, v. The CITY OF NEW YORK, the New York City Commission on Human Rights, and Dr. Marcella Maxwell, S. Ted Antholes, Rabbi Jacob Bronner, Joyce Hunter, Glen Lau-Kee, James B. Levin, Wittie McNeil, LeRoy E. Pagano, Lydia Riviero, Julia Gared de Rodriguez, Helga Weiss Tanenbaum, Boleslaw Wierzbianski, and Andrew Wolf, Defendants.

The UNION LEAGUE CLUB, Plaintiff, v. The CITY OF NEW YORK, Edward I. Koch, the Mayor of the City of New York, and the City Commission on Human Rights, Defendants.

No. 86 Civ. 2330 (GLG).

United States District Court, S.D. New York.

March 17, 1987.

LeBoeuf, Lamb, Leiby & MacRae, New York City, for University Club; by Frederick B. Lacey, Molly S. Boast, Stephen H. Orel, of counsel.

Lunney & Crocco, New York City, for Union League Club; by J. Robert Lunney, Andrew P. Saulitis, of counsel.

Frederick A.O. Schwarz, Jr., Corp. Counsel of the City of New York, New York City, for all defendants; by Dennis deLeon, Lorna Bade Goodman, Alexandra S. Bowie, Peter H. Lehner.

GOETTEL, District Judge:

The plaintiffs in these actions, the University Club ("University") and the Union League Club ("Union"), are private membership clubs located in the city of New York. The plaintiffs bring these consolidated actions¹ against the defendants, the City of New York, Mayor Edward I. Koch,² the New York City Commission on Human Rights (the "Commission"), and the members of the Commission.³ The clubs seek a declaration that the 1984 amendments to the New York City Human Rights Law are unconstitutional on their face and as applied to the clubs, and seek to enjoin defendants from enforcing these amendments against the clubs. Before the Court are the defendants' motions to dismiss the complaints of both clubs, pursuant to Fed.R. Civ.P. 12(b)(6) and 12(c).

For the reasons stated below, the defendants' motions are granted and the plaintiffs' complaints are dismissed, with leave to replead a selective prosecution claim if a meaningful one can be asserted.

BACKGROUND

The New York City Human Rights Law, Administrative Code of the City of New York, Chapter 1, Title B (the "Human Rights Law") forbids

any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin or sex of any person directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.

Id. (emphasis added). The Human Rights Law expressly excludes from its definition of "public accommodation, resort, or amusement" benevolent orders, religious corporations, and those institutions, clubs, and places of accommodation that are in their nature "distinctly private."

On October 9, 1984, the New York City Council enacted Local Law 63. In pertinent part, Local Law 63 amends the Human Rights Law so that

an institution, club, or place of accommodation shall not be considered in its nature distinctly private if it has more than four hundred members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers for furtherance of trade or business.

Local Laws of the City of New York for the Year 1984, § 2 (emphasis added). Local Law 63 retains the express exemption for religious corporations and benevolent orders contained in the Human Rights Law. Id.

The objective of Local Law 63 is to eliminate invidious discrimination in clubs that are not distinctly private. The legislative declaration calls attention to the fact that

one barrier to the advancement of women and minorities in the business and professional life of New York City is the discriminatory practices of certain membership organizations where business deals are often made and personal contacts valuable for business purposes, employment, and professional advancement are formed.

While such organizations may avowedly be organized for social, cultural, civic or educational purposes, ... the commercial nature of some of the activities occurring therein and the prejudicial impact of these activities on business, professional and employment opportunities of minorities and women cannot be ignored.

Legislative Declaration, Local Laws of the City of New York for the Year 1984, § 1.

Immediately upon its enactment, Local Law 63 was attacked. On October 24, 1985, the day the law became effective, the New York State Club Association ("NYSCA"), whose members include plaintiffs, sued the City of New York, the Mayor of New York, and the Commission on Human Rights in New York State Supreme Court to have the law declared unconstitutional.⁴ NYSCA claimed that some of its member clubs met the criteria set forth in Local Law 63, and would therefore not be deemed distinctly private for purposes of the Human Rights Law. However, NYSCA argued, these clubs were in fact distinctly private and therefore Local Law 63 violated its own and its member clubs' constitutional rights of privacy, freedom of association, freedom of speech, equal protection, and due process of law. NYSCA also alleged that the law was an unlawful bill of attainder. The New York Supreme Court granted summary judgment for the defendants, and declared the statute constitutional. New York State Club Assoc., Inc. v. City of New York, slip op., No. 25028/84 (N.Y.Sup.Ct.1985) (Grossman, J.). The Appellate Division, First Department, affirmed Justice Grossman's opinion, "for the reasons stated in his careful and thoughtful opinion." New York State Club Assoc., Inc. v. City of New York, 118 A.D.2d 392, 505 N.Y.S.2d 152, 153 (1st Dep't 1986). The decision of the Appellate Division was likewise affirmed by the New York Court of Appeals in an erudite opinion by Chief Judge Wachtler. New York State Club Assoc., Inc. v. City of New York, 69 N.Y.2d 211, 513 N.Y.S.2d 349, 505 N.E.2d 915 (Ct.App.1987).

On January 30, 1986, shortly after the New York Supreme Court upheld the law, the Commission filed administrative complaints against three clubs, including the plaintiffs, alleging that these clubs had unlawfully discriminated against women in their membership practices.⁵ The Commission's complaints were accompanied by interrogatories addressed to, inter alia, the use of the clubs' facilities by members and nonmembers, and the identities of the clubs' members. It was acknowledged that these clubs did not accept women members⁶ and the thrust of the investigation was to establish whether they should be deemed distinctly private under Local Law 63.

In March 1986, notwithstanding NYSCA's defeat in the New York court (which was then on appeal), the plaintiffs filed suit to enjoin the Commission's investigation and to have Local Law 63 declared unconstitutional. The complaints allege that these clubs are distinctly private, and that, on its face and as applied to them, Local Law 63 violates their rights of privacy, freedom of association, freedom of speech, due process, and equal protection. Furthermore, the plaintiffs allege that the law is an unlawful bill of attainder, and that it violates the contract clause of the United States Constitution. The clubs also challenge the Commission's enforcement of the law as unconstitutionally discriminatory and abusive.

The defendants make several arguments in support of their motions to dismiss. First, the defendants argue that because of the state court decision, res judicata and collateral estoppel bar further litigation of the plaintiffs' claims, except their selective prosecution claims. In addition, the defendants argue that the plaintiffs' claims of selective prosecution fail on the merits, and that this Court should abstain to allow the New York courts to decide state law issues presented by these complaints.

DISCUSSION

I. Res Judicata

Under the doctrine of res judicata, "a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979); see Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487, 490 (1984). Therefore, whether the plaintiffs are barred by the state court action depends, first, on whether they are the privies of NYSCA (the plaintiff in that action), and, second, whether their suit is based on the same cause of action litigated in that proceeding.

A. Identity of the parties.

For res judicata purposes, a nonparty may be deemed in privity with an association of which the nonparty is a member, if (a) the association had authority to litigate the particular claims subsequently asserted by the nonparty, and (b) the association's representation of those claims was adequate. Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir.1977). "While often justified by the doctrine of privity, the theory underlying this ... proposition is that the party bound is in substance the one whose interests were at stake in the prior litigation." Id.

We conclude that the NYSCA was vested with a sufficient degree of representative authority. The state court found that NYSCA had standing to assert its members' claims. This indicates the state court's determination that NYSCA was a proper party to invoke the legal rights and interests of the plaintiffs. See Warth v. Seldin, 422 U.S. 490, 517-18, 95 S.Ct. 2197, 2214-15, 45 L.Ed.2d 343 (1975) (rules of standing limit the judiciary's role in resolving disputes involving third parties' legal rights); Urowsky v. Board of Regents of University of State of New York, 38 N.Y.2d 364, 342 N.E.2d 583, 379 N.Y.S.2d 815 (1975). If NYSCA was entitled to bring suit on behalf of its members, it follows that the judgment should bind not only NYSCA, but also its members. See Heckman v. United States, 224...