University Club v. City of New York

• Decision Date: 17 March 1988
• Docket Number: No. 228,D,228
• Citation: 842 F.2d 37
• Parties: The UNIVERSITY CLUB and the Union League Club, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Edward I. Koch, the Mayor of the City of New York, the New York City Commission on Human Rights, Dr. Marcella Maxwell, S. Ted Antholes, Rabbi Jacob Bronner, Joyce Hunter, Glenn 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-Appellees. ockets 87-7312, 87-7372.
• Court: U.S. Court of Appeals — Second Circuit

Page 37

842 F.2d 37

The UNIVERSITY CLUB and the Union League Club, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Edward I. Koch, the Mayor of the City of New York, the New York City Commission on Human Rights Dr. Marcella Maxwell, S. Ted Antholes, Rabbi Jacob Bronner Joyce Hunter, Glenn 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-Appellees.

No. 228, Dockets 87-7312, 87-7372.

United States Court of Appeals, Second Circuit.

Argued Jan. 14, 1988.

Decided March 17, 1988.

J. Robert Lunney, New York City (Andrew P. Saulitis, Lunney & Crocco, New York City, of counsel), for plaintiffs-appellants.

Lin Saberski, Asst. Corp. Counsel, New York City (Peter L. Zimroth, Corp. Counsel, Stephen J. McGrath, Patricia A. O'Malley, Peter H. Lehner, Asst. Corp. Counsel, New York City, of counsel), for defendants-appellees.

Before CARDAMONE, PRATT and ALTIMARI, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

In this challenge to the New York City "Public Accommodations Law", N.Y.C.Admin.Code, Sec. 8-102(9), 8-107(2) (1986), plaintiff The Union League Club (hereinafter "Union League") seeks to enjoin an administrative investigation and potential enforcement action by the city's Human Rights Commission. The district court concluded, 655 F.Supp. 1323 (S.D.N.Y.1987), that Union League's complaint, while styled as an "as-applied" challenge, was in fact an attack on the facial constitutionality of the law, and as such was barred by the res judicata effect due a state court judgment that already has been rendered on such a claim. New York State Club Ass'n v. City of New York, 69 N.Y.2d 211, 513 N.Y.S.2d 349, 505 N.E.2d 915 (1987), prob. juris. noted, --- U.S. ----, 108 S.Ct. 62, 98 L.Ed.2d 26 (1987). We conclude that abstention is appropriate here, and thus affirm without reaching the res judicata issue found decisive by the district court.

BACKGROUND

This case is one of two ongoing challenges to Local Law 63, by which New York City in 1984 amended its public accommodations law. Prior to the amendment, the law barred discrimination in places of public accommodation, and exempted "any institution, club or place of accommodation which proves that it is in its nature distinctly private." N.Y.C.Admin.Code Sec. 8-102(9). The purpose of amending the law was to establish specific standards to define the term "distinctly private" for purposes of the statutory exemption. By the terms of Local Law 63,

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 the furtherance of trade or business.

Almost immediately upon its passage, the constitutionality of Local Law 63 was challenged in state court by the New York State Club Association, Inc. (hereinafter "NYSCA"), on behalf of its member clubs, one of which is Union League. NYSCA alleged that Local Law 63 is facially unconstitutional in that it is overbroad, subjecting to regulation private clubs as to which the application of the public accommodations law would infringe the constitutional right to free association, and that the express exemption for religious corporations and benevolent orders violates the due process and equal protection clauses. These facial challenges to Local Law 63 were rejected at each level of the state court system, and the case is now pending before the United States Supreme Court. New York State Club Ass'n, Inc. v. City of New York, supra.

While the NYSCA suit was pending in state court, the city's Human Rights Commission (hereinafter "the commission") began an investigation into the practices of several clubs, including Union League and the University Club, which it believed might no longer be able to claim status as "distinctly private" as that term was defined by Local Law 63. On January 30, 1986, the commission filed a complaint against Union League and the University Club, along with another club, alleging that they excluded women from membership in violation of the public accommodations law. The filing of the complaint began the commission's formal investigation, which culminated on July 7, 1987, when the commission issued a finding of probable cause detailing its findings and inviting the clubs to schedule a date for a conciliation meeting. After the clubs declined to respond, the case was referred to the commission's hearings division.

While the commission investigation was proceeding, Union League and the University Club initiated the instant federal action in March 1986 in the Southern District of New York, seeking a declaratory judgment that the new definition of "distinctly private" was unconstitutional on its face and as applied to them, and a permanent injunction blocking the administrative proceedings against them.

Without addressing the city's claim that it should abstain because of the pending administrative proceedings, the district court dismissed virtually all of the plaintiffs' claims on the ground that they were barred by res judicata. Judge Goettel concluded that NYSCA had authority to litigate in the state action on the federal plaintiffs' behalf, and adequately had represented their interest. He further found an identity in the causes of action, rejecting the clubs' contention that the state suit differed from the federal action because the latter attacked the statute as applied to it, while the former challenged Local Law 63 on its face.

The only exception to this analysis was a selective prosecution claim implied in the complaint. The district court found that the state plaintiff had not raised such a claim, and it allowed the plaintiffs here "leave to replead a selective prosecution claim if a meaningful one can be asserted." University Club, 655 F.Supp. at 1324. That opportunity was, of course, waived by Union League's and the University Club's decision to appeal rather than amend their complaint. See 6 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1483 at 413 (1971). Thereafter, the University Club voted to admit women and withdrew its appeal, leaving only Union League to prosecute the appeal from the district court's judgment.

DISCUSSION

We need not reach Union League's argument that the district court erred in finding an identity between its claims here and those raised by NYSCA in state court, because we conclude that under prevailing precedents of the Supreme Court and of this court, the district court should have abstained.

Preliminarily, we reject Union League's contention that the city waived its right to urge abstention by not filing a cross-appeal from the trial court's refusal to abstain. We may affirm the judgment of the district court on any basis that appears in the record, and an appellee may urge us to do so, regardless of whether it took a cross-appeal. See Hankerson v. North Carolina, 432 U.S. 233, 240 n. 6, 97 S.Ct. 2339, 2344 n. 6, 53 L.Ed.2d 306 (1977) ("The * * * respondent may make any argument presented below that supports the judgment of the lower court."); Massachusetts Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479, 480-81, 96 S.Ct. 2158, 2159, 48 L.Ed.2d 784 (1976) (an argument that was "no more than 'an attack upon the reasoning of the lower court' * * * required no cross-appeal"), quoting United States v. American Ry. Exp. Co., 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087 (1924). Here, the city seeks no change in the judgment of the district court; it urges abstention merely as an alternative ground for doing precisely what the district court did: dismiss the complaint.

On the merits of abstention, this case is on all fours with Ohio Civil Rights Comm'n. v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986). There, the Supreme Court, after noting that the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), has been applied "to state administrative proceedings in which important state interests are vindicated", 106 S.Ct. at 2723, determined that a federal court should abstain where a state human rights commission is investigating allegations of sex discrimination and an administrative proceeding relating to those allegations is ongoing. Id. at 2723-24.

The proceedings of the Ohio Civil Rights Commission in Dayton Christian Schools were remarkably similar to those of the commission in the instant case. In both cases, there was a finding of probable cause to believe that there had been a violation of laws designed to eliminate gender discrimination. In both cases the administrative posture was the same: the commissions were proceeding with conciliation efforts and adjudication of the charges, when the targets of the investigations brought suit in federal district court to halt the administrative actions because of alleged infringement of constitutional rights. Dayton Christian Schools, 106 S.Ct. at 2721-22.

This court recently had occasion to interpret Dayton Christian Schools in Christ the King Regional High School v. Culvert, 815 F.2d 219, 223-24 (2d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 102, 98 L.Ed.2d 63 (1987). Judge Pierce's opinion for the court set forth a three-part test, emanating from Dayton Christian Schools, for determining whether Younger abstention is appropriate. The court must determine "(1) whether there is an ongoing state proceeding; (2) whether an important state interest is involved; and (3) whether the federal plaintiff has an adequate opportunity for judicial review of his constitutional claims during or after the proceeding." Id. at 224.

The first two elements of the Culvert test easily are...