World Peace Movement of America v. Newspaper Agency Corp., Inc., 920507

• Decision Date: 27 July 1994
• Docket Number: No. 920507,920507
• Parties: 22 Media L. Rep. 2193 The WORLD PEACE MOVEMENT OF AMERICA, an unincorporated association, and Israel K. Malupo, Plaintiffs and Appellants, v. NEWSPAPER AGENCY CORPORATION, INC., Defendant and Appellee.
• Court: Utah Supreme Court

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879 P.2d 253 22 Media L. Rep. 2193 The WORLD PEACE MOVEMENT OF AMERICA, an unincorporated
association, and Israel K. Malupo, Plaintiffs and Appellants,
v.
NEWSPAPER AGENCY CORPORATION, INC., Defendant and Appellee. No. 920507. Supreme Court of Utah. July 27, 1994.

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Brian M. Barnard, John Pace, Salt Lake City, for plaintiffs.

Michael Patrick O'Brien, Sharon E. Sonnenreich, D. James Morgan, Salt Lake City, for defendant.

Kathryn D. Kendell, Salt Lake City, for amicus curiae American Civil Liberties Union.

DURHAM, Justice:

Plaintiff The World Peace Movement of America ("World Peace Movement") appeals from a Third District Court order dismissing its civil rights action against defendant Newspaper Agency Corporation ("NAC"). World Peace Movement also appeals a second order awarding NAC the sum of $17,047 in actual and necessary expenses incurred in defending the action. We affirm the district court's order dismissing the civil rights action but vacate its order awarding expenses to NAC.

The relevant facts of this case are undisputed. World Peace Movement is an unincorporated religious association led by Israel K. Malupo. NAC is a for-profit corporation that serves as an agent for two privately owned newspapers, the Deseret News and The Salt Lake Tribune. The Deseret News is published by the Deseret News Publishing Company, which is owned by The Church of Jesus Christ of Latter-day Saints. The Salt Lake Tribune is published by the Kearns-Tribune Corporation. NAC provides circulation, advertising, production, and other services for both newspapers. Each newspaper, however, maintains independent editorial functions and separately decides what it will and will not publish. The publisher of each paper sets guidelines as to the types of advertisements the paper will accept and reserves the right to decline to publish an advertisement on the basis of content. NAC, in its capacity as agent, implements the advertising guidelines established by each publisher.

In September 1990, Malupo attempted to place an advertisement on behalf of World Peace Movement in T.V. Week, the television weekly NAC prints for the Deseret News and The Salt Lake Tribune. T.V. Week contains a blend of feature stories and advertisements, along with schedules for the coming week's television viewing. The group's advertisement contained a brief spiritual message accompanied by a black and white portrait which World Peace Movement describes as "a dark-skinned man with Polynesian features, dressed in biblical garb."

According to World Peace Movement's beliefs and doctrines, the portrait accurately portrays Jesus Christ "as a mortal about 2,000 years ago." The purpose of the advertisement was to explain World Peace Movement's teachings and to invite public inquiry into its religious doctrines. By including the portrait in the advertisement, World Peace Movement hoped to convey one of its central tenets--the belief that Jesus Christ had a dark complexion.

While The Salt Lake Tribune agreed to publish the advertisement in its entirety, the Deseret News refused. After receiving the advertisement, NAC employees presented it to Wm. James Mortimer, NAC director and publisher of the Deseret News, for his review. Mortimer agreed to publish the text of the

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advertisement in the Deseret News' version of T.V. Week, but he refused to print the accompanying portrait. Subsequent letters written from NAC employees to World Peace Movement indicate that Mortimer and the Deseret News found the complete advertisement "unacceptable" because it "was not in good taste and could be offensive to [Deseret News ] readers." ¹

NAC informed Malupo of the newspapers' respective positions. Affidavits submitted by NAC indicate, and World Peace Movement does not dispute, that Malupo agreed to this arrangement and approved the advertisements. On September 23, 1990, NAC published the complete advertisement in The Salt Lake Tribune 's version of T.V. Week, while the Deseret News' version carried only the text.

During the ensuing week, World Peace Movement informed NAC that both advertisements contained an incorrect phone number. Although Malupo had inspected and approved the advertisements, NAC agreed to republish them in the newspapers' September 30, 1990, versions of T.V. Week. Thus, as of September 30, 1990, The Salt Lake Tribune had twice published the complete advertisement and the Deseret News had twice published the text of the advertisement.

On October 1, 1990, World Peace Movement attempted to contract with NAC to publish the complete advertisement in both newspapers' T.V. Week. World Peace Movement sought to place the advertisement for twenty-six weeks in full color. However, NAC refused to place the complete advertisement in either newspaper.

NAC's blanket refusal apparently resulted from a change in T.V. Week printing policy. When Malupo first submitted the advertisement, each newspaper provided its subscribers with a different version of T.V. Week. Thus, it was possible for The Salt Lake Tribune to print an advertisement that the Deseret News had rejected. However, in late September or early October, NAC, The Salt Lake Tribune, and the Deseret News revised their printing policies and decided to publish a single version of T.V. Week for both newspapers. Under the new procedure, one newspaper could still accept T.V. Week advertisements that the other rejected, but the accepting newspaper had to pay the additional production costs incurred by NAC. Apparently, NAC refused to publish World Peace Movement's advertisement in The Salt Lake Tribune solely because the Deseret News refused to carry the portrait.

After exchanging several letters concerning the advertisement and NAC's reasons for rejecting it, on April 10, 1992, World Peace Movement filed a religious discrimination lawsuit against NAC under the Utah Civil Rights Act (the "Act"). Utah Code Ann. §§ 13-7-1 to -4 (1992). World Peace Movement's amended complaint, filed May 21, 1992, alleged that NAC unlawfully rejected the advertisement because it "offended or might offend the religious beliefs or ideals of [NAC], the Deseret News and/or some of the readers of the Deseret News." According to World Peace Movement, this rejection amounted to religious discrimination because it was "based upon the religious content of the ad and the religious message to be conveyed by said ad," or more specifically, "the picture therein and the religious message to be conveyed by said picture." World Peace Movement sought a determination and declaratory ruling that NAC's conduct violated the Utah Civil Rights Act, a permanent injunction ordering NAC to cease its discriminatory practices, monetary damages, attorney fees, and court costs.

NAC filed a motion to dismiss that was alternatively fashioned as a motion for summary judgment. World Peace Movement responded with a motion for partial summary judgment. Both parties filed supporting memoranda and affidavits along with their respective motions.

Following oral argument, the district court dismissed World Peace Movement's motion for partial summary judgment and granted NAC's motion to dismiss or alternatively for

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summary judgment. An October 6, 1992, order reflected the district court's decision. ² Although the order did not provide detailed findings of fact, it indicated that the district court had based its decision on "the reasons articulated in Defendant NAC's memoranda." NAC subsequently filed a request for actual and necessary expenses pursuant to subsection 13-7-4(d) of the Act. The district court awarded NAC the sum of $17,047, consisting of $17,037 in attorney fees and $10 in court costs.

World Peace Movement appeals both district court orders to this court. We note that the issues presented are questions of first impression.

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); Winegar v. Froerer Corp., 813 P.2d 104, 107 (Utah 1991). In reviewing the trial court's ruling, we view the facts and all reasonable inferences arising therefrom in the light most favorable to the losing party. Id. Because a challenge to summary judgment presents for review only questions of law, we accord no deference to the trial court's conclusions but review them for correctness. Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1111-12 (Utah 1991).

On appeal, World Peace Movement clarifies the nature of its religious discrimination claim. In essence, it argues that religious discrimination is unique among civil rights claims in that an individual's religion often cannot readily be surmised from that individual's appearance. Thus, before a business establishment can discriminate on religious grounds, it must somehow be "tipped-off" as to the individual's religious beliefs. World Peace Movement contends that its advertisement provided NAC with that information.

According to World Peace Movement, NAC decided to discriminate against the group after Mortimer inspected the advertisement and learned that World Peace Movement believed Jesus Christ had a dark complexion. Again, this belief is a central tenet of their religion. Thus, World Peace Movement argues that in refusing its publishing services on the basis of the advertisement's depiction of Jesus Christ, NAC discriminated against its members on the basis of their religious convictions in violation of section 13-7-3 of the Act.

NAC defends its conduct on both statutory and constitutional grounds. At the statutory level, it argues that World Peace Movement's claims must be dismissed because NAC's conduct did not violate the Act. ³ NAC claims that it did not unlawfully discriminate against members of World Peace Movement because of their religion. Rather, it contends that as the Deseret News' agent, it simply exercised editorial discretion and refused to accept World Peace Movement's...