Louisiana Debating and Literary Ass'n v. City of New Orleans

United States Court of Appeals,

Fifth Circuit.

No. 94-30180.

LOUISIANA DEBATING AND LITERARY ASSOCIATION, for itself and on
behalf of its members, d/b/a The Louisiana Club, Plaintiff-
Appellee,

v.

The CITY OF NEW ORLEANS, et al., Defendants-Appellants.

STRATFORD CLUB, for itself and on behalf of its members,
Plaintiff-Appellee,

v.

The CITY OF NEW ORLEANS, et al., Defendants-Appellants.

The BOSTON CLUB OF NEW ORLEANS, Plaintiff-Appellee,

v.

The CITY OF NEW ORLEANS, et al., Defendants-Appellants.

PICKWICK CLUB, for itself and on behalf of its members,
Plaintiff-Appellee,

v.

The CITY OF NEW ORLEANS, et al., Defendants-Appellants.

Jan. 26, 1995.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before BARKSDALE and PARKER, Circuit Judges, and COBB1, District
Judge.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue are whether the district court abused its discretion

in not abstaining from hearing this challenge by four clubs against

1
District Judge of the Eastern District of Texas, sitting by
designation.

1
application to them of a newly enacted City of New Orleans

ordinance prohibiting, inter alia, discrimination in places of

public accommodation; and, absent an abuse of discretion, whether

the clubs had private status of such a nature that such

application, to include the ordinance's investigative and public

hearing procedures, is violative of First Amendment "protect[ion]

against unjustified government interference with an individual's

choice to enter into and maintain certain intimate or private

relationships" (right of private association). Board of Directors

of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 544, 107

S.Ct. 1940, 1945, 95 L.Ed.2d 474 (1987).

Following notification of administrative complaints

(discrimination charges) being filed against them, the four clubs,

claiming private status, sought to enjoin the City from enforcing

the ordinance against them. The district court granted summary

judgment, to include injunctive relief, holding that the ordinance,

as applied to the clubs, violated their constitutionally protected

right of private association. We AFFIRM.

I.

In late 1991, "to eliminate and prevent discrimination", the

City adopted Chapter 40C of its Code. Section 40C-50.2 The

2
Section 40C-50 provides in part:

In the City of New Orleans with its great
cosmopolitan population consisting of large numbers of
people of every race, color, creed, religion, age,
physical condition, national origin and ancestry, many
of them with disabilities, there is no greater danger
to the health, morals, safety and welfare of the city
and its inhabitants than the existence of groups

2
Chapter was based on a similar New York City ordinance, which, in

1988, had withstood a facial challenge to its constitutionality.

New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1,

108 S.Ct. 2225, 101 L.Ed.2d 1 (1988). Among other things, the

Chapter proscribes discrimination by entities that fall within the

definition of a "public accommodation".3 This term includes, inter

alia, any club which has more than 75 members, "provides regular

meal service", and

regularly receives payment for dues, fees, use of space,
facilities, services, meals or beverages, directly or
indirectly, either from or on behalf of nonmembers or members
for or in the direct or indirect furtherance of trade or
business or from or on behalf of any persons who claim such

prejudiced against one another and antagonistic to each
other because of differences of race, color, sex,
creed, religion, age, national origin or ancestry, or
physical condition or disability or sexual orientation.
The Council hereby finds and declares that prejudice,
intolerance, bigotry, and discrimination and disorder
occasioned thereby threaten the rights and proper
privileges of its inhabitants and menace the
institutions and foundation of a free democratic state.
The New Orleans Human Relations Commission as created
by Article I of this chapter is designated as an
instrument of the city's power to eliminate and prevent
discrimination in employment, in places of public
accommodation, resort or amusement, in housing
accommodations and in commercial space because of race,
creed, religion, color, sex, age, sexual orientation,
national origin, ancestry, or physical condition or
disability whenever such discrimination is prohibited
by provisions of this chapter or other city law; and
said commission is hereby designated as the local Human
Rights Commission for this city and is given such
jurisdiction and power for such purposes as is
conferred upon or authorized to a local Human Rights
Commission under applicable state law.
3
Section 40C-102 prohibits discrimination by a public
accommodation "because of race, color, creed, religion, national
origin, ancestry, or unreasonably, because of age, sex, sexual
orientation, physical condition or disability."

3
 payment as a business expense for tax purposes....

Section 40C-101(2).

As reflected in note 2, supra, the Chapter established the

Human Relations Commission, which is charged with receiving and

investigating complaints alleging violation of the Chapter.4

Section 40C-53(a). Upon a complaint being filed, the Commission is

to conduct a prompt investigation in order to make a probable cause

determination. Section 40C-53(b). If the Commission finds

probable cause, it may endeavor to eliminate the unlawful

discriminatory practice through conciliation and persuasion.

Section 40C-53(c)(1). As an alternative to, or concurrent with,

the conciliation efforts, and following a public hearing, the

Commission may issue a cease and desist order. Section 40C-

53(c)(2)-(3). The hearing is conducted before a hearing officer

designated by the Commission's Executive Director; rules of

evidence are not applicable; and the case in support of the

complaint is presented by the City's Department of Law or another

representative designated by the Executive Director. Section 40C-

53(c)(2).

The Chapter exempts "distinctly private entities". Section

40C-103.5 Such entities are listed in a registry maintained by the

4
The Chapter permits a complaint to be filed by any person
claiming to be aggrieved by an unlawful discriminatory act or
other prohibited act; additionally, the Commission may initiate
the complaint. Section 40C-53(a).
5
Section 40C-103 provides:

A club or institution is distinctly private in
character if either:

4
(1) a. its services, accommodations, advantages,
facilities, or privileges are not offered or
available to the public or to a wide sector of the
public exclusive of a class or classes
discrimination against whom is prohibited by this
article;

b. it is not an agent of the state or its creatures,
agencies or subdivisions, and its activities do
not constitute state action;

c. it does not advertise for or engage in general
solicitation to attract potential customers,
patrons, or members;

d. it does not fulfill a vital community role affected
with public interest;

e. its activities are not subsidized directly or
indirectly by public funds, nor does it otherwise
receive governmental support;

f. it does not exist or operate for commercial or
business purposes;

g. it generally denies its services, accommodations,
advantages, and privileges and participation in
its activities, meetings, and social functions to
all but members and their guests;

h. its membership is of moderate size, and it is not
connected with a larger institution, club or
accommodation that is a public accommodation;

i. its organizers had the intention of constituting a
private institution, club, or accommodation;

j. its organizational structure has not been altered
since passage of the Civil Rights Act of 1964 in
an attempt to avoid the applicability of that act,
or since the date of the effectiveness of this
chapter, in an effort to avoid the applicability
of this article;

k. its members have a nexus of common interest;

l. its membership policies include an element of
exclusiveness based on one (1) or more criteria
other than membership in a class against whom
discrimination is prohibited by this article; and

5
Commission. To be so listed, an entity must submit an application

to the Executive Director, who then schedules a public hearing on

the application. Section 40C-103(d). Prior to that hearing, the

applicant must publish notice of the application and of the

hearing. Id. "[A]ny interested person" may appear at the hearing

in support of, or opposition to, the application. Id. If the

applicant proves, by a preponderance of the evidence, that it is a

"distinctly private entity", the Executive Director will certify it

as such. Section 40C-103(b). This certification is valid for

three years; the entity must then repeat the process. Section

40C-103(a). Additionally, at anytime during this three-year

period, the Executive Director, or any interested person, may

initiate a complaint seeking to have the entity's distinctly

private status revoked. Section 40C-103(f).

On December 31, 1992, a resident of California filed four

complaints with the Commission, alleging that, in 1992, four clubs

located in the City had discriminated against him in his attempts

to gain membership: the Louisiana Debating and Literary

m. it does not offer or constitute facilities, sponsor
activities, or create an environment where
business deals are often made and personal
contacts valuable for business purposes,
employment, and professional advancement are
formed; or

(2) its character as an institution, club, or
association is such that, under the constitutional
doctrines of freedom of association (including
expressive association) and privacy prevailing in
the law at the time of the hearing, the
Constitution of this state or of the United States
requires that Section 40C-102 [ ("Unlawful
practices") ] not be applied against it.

6
Association, the Stratford Club, the Boston Club of New Orleans,

and the Pickwick Club (the Clubs).6 By letter dated February 12,

1993, the Commission's Executive Director notified the Clubs of the

complaint, requested information from them, and advised them of

possible options to resolve the complaint.

Approximately two weeks later, rather than responding to the

letter, each club filed a separate action, pursuant to 42 U.S.C. §

1983, seeking: (1) a declaratory judgment that the Chapter does

not apply to them or, alternatively, that its application to them

violates their federal constitutional right to privacy and freedom

of association; (2) a permanent injunction prohibiting any

investigation of them pursuant to the Chapter; and, (3) a

permanent injunction enjoining the application, or attempted

application, of the Chapter to them.7 The actions were

consolidated, and the Clubs amended their complaints to add several

6
The complainant made the following charge of
discrimination:

On July 16, 1992, and December 28, 1992, [the
complainant] contacted several private clubs in New
Orleans, Louisiana, in regards to obtaining membership.
[The complainant] explained to them that he was a black
man, and owned his own business in Los Angeles and San
Francisco, California[,] and that he was going to be
opening up a new business here in Louisiana. He
further explained that he was financially capable of
becoming part of their organization and requested an
application and membership information. [The
complainant] indicated that each organization that he
contacted refused to send him an application or to
provide any relevant information with respect to their
membership criteria.
7
The defendants were the City, the Commission, and its
Executive Director, in his official capacity (collectively, "the
City").

7
state law claims. Shortly after the actions were filed, the City

advised the district court that it would not proceed with any

investigation of the Clubs during the pendency of the litigation.

The City moved, in July 1993, to have the complaints dismissed

for failure to state a claim or, in the alternative, to have the

district court abstain from exercising jurisdiction based upon

Younger and Pullman abstention doctrines. Upon denial of the

motion that September, the City petitioned this court

unsuccessfully for a writ of mandamus or prohibition.

Following extensive discovery, the Clubs sought summary

judgment. The district court concluded, after a lengthy analysis,

that the Clubs had

demonstrated that [they are] private club[s] located at the
most intimate end of the qualitative continuum of personal
relationships. As such, [the Clubs] have a First Amendment
right to enter into and maintain certain intimate human
relationships without undue state intrusion and a right not to
have their private affairs made public by the government.
Moreover, [the Clubs] have established a substantial
likelihood that [the City's] application of Chapter 40C to
[the Clubs] would expose them to public revelation of their
membership lists, their members' tax returns, and complete
descriptions of all club activities, which would ultimately
have a chilling effect on their members' First Amendment
rights.

Accordingly, the court enjoined the City from investigating,

pursuant to the Chapter, any charges of discrimination against the

Clubs; it also enjoined the City from applying, or attempting to

apply, the Chapter to the Clubs, because the inevitable attendant

publicity, including public hearings for which private and

sensitive information could be sought, would burden unduly the

Clubs' and their members' First Amendment rights. The court

8
retained jurisdiction.

II.

When all is said and done, the City claims primarily that the

Clubs are not private, and are therefore subject to application of

the Chapter, because, notwithstanding their private trappings, long

history, and exclusivity, they control and dominate business in the

City; that, despite undisputed evidence to the contrary, the

Clubs' business is business. But, before reaching whether the

Clubs are private, and, if so, whether investigation of them

pursuant to the administrative complaints threatens unduly their

constitutionally protected right of private association, we must

deal with equally important issues of standing and abstention. All

of these issues are but shorthand for this classic confrontation of

competing governmental interests and individual rights; interests

and rights that bring into play "our Federalism" on the one hand,

and federal courts' protection of constitutional rights on the

other; a balancing of governmental interests and individual rights

that reflects the majesty and scope of our living Constitution.

A.

The City contends that the Clubs fail to state any injury or

threatened injury that would entitle them to relief under § 1983;

and that, therefore, the complaints should have been dismissed for

failure to state a claim. But, in essence, the City is asserting

lack of standing, a jurisdictional issue subject to plenary review.

E.g., Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 350 (5th

Cir.1989) (failure to allege injury raises standing, not failure to

9
state a claim); see, e.g., 7547 Corp. v. Parker & Parsley Dev.

Partners, 38 F.3d 211, 217 (5th Cir.1994) (standing raises

jurisdictional issue); Bogle v. Phillips Petroleum Co., 24 F.3d

758, 760 (5th Cir.1994) (jurisdiction subject to plenary review).

In New York State Club Ass'n, Inc. v. City of New York, 487

U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988), the Supreme Court

rejected a similar contention. Immediately after New York City

adopted the ordinance upon which the Chapter is based, a consortium

of clubs and associations sought a declaratory judgment that the

ordinance was facially unconstitutional. Despite no evidence of

any enforcement or threatened enforcement, the Court ruled that the

clubs "would have standing to bring this same suit on behalf of

their own individual members, since those individuals "are

suffering immediate or threatened injury' to their associational

rights as a result of the [ordinance's] enactment." Id. at 9-10,

108 S.Ct. at 2232 (quoting Warth v. Seldin, 422 U.S. 490, 511, 95

S.Ct. 2197, 2211-12, 45 L.Ed.2d 343 (1975)); see also City of Los

Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 1666-67, 75

L.Ed.2d 675 (1983) (standing to seek injunction depends on whether

the plaintiff is "likely to suffer future injury"); Steffel v.

Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)

(declaratory relief not precluded when official threatens

prosecution under state statute forbidding handbilling).

Here, not only has the Chapter been enacted, but complaints

(discrimination charges) have been filed with the Commission; and

it has put the Clubs on notice. Thus, the threat to the Clubs' and

10
their members' associational rights is significantly greater than

that faced in New York State Club Ass'n. This notwithstanding, the

City maintains that no threatened harm exists because, if the Clubs

can prove that they are protected by (fall within) the Chapter's

"distinctly private entity" exemption, they would not be subject to

any further regulation or threat to their constitutional rights.

But, under attack are the Commission's procedures and the

investigation necessary to resolve, not only whether the Clubs are

"distinctly private entities" under the Chapter, but also, the

complaints filed against each. Furthermore, by requiring a

triennial repetition of the exemption process, as well as

permitting any individual to challenge the exemption during this

period, the Clubs face the threat of further and potentially

continual regulation by the City.

In sum, the filing with the Commission of discrimination

charges pursuant to the Chapter presents the Clubs with a real and

immediate threat to their associational rights. Accordingly, they

have standing to challenge the Chapter.

B.

It goes without saying that abstention, under either the

Younger or Pullman doctrines, is the exception. Accordingly, even

if we determine that the preconditions for abstention have been

met, we still review a district court's decision not to abstain

only for abuse of discretion. E.g., American Bank & Trust Co. of

Opelousas v. Dent, 982 F.2d 917, 922 (5th Cir.1993).

1.

11
 Abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct.

746, 27 L.Ed.2d 669 (1971), "is generally deemed appropriate [when]

assumption of jurisdiction by a federal court would interfere with

pending state proceedings, whether of a criminal, civil, or even

administrative character." Word of Faith World Outreach Center

Church, Inc. v. Morales, 986 F.2d 962, 966 (5th Cir.), cert.

denied, --- U.S. ----, 114 S.Ct. 82, 126 L.Ed.2d 50 (1993).8

Younger abstention can be applied to "state administrative
proceedings in which important state interests are vindicated,
so long as in the course of those proceedings, the federal
plaintiff would have a full and fair opportunity to litigate
his constitutional claim." Ohio Civil Rights [Comm'n v.
Dayton Christian Schs., Inc., 477 U.S. 619, 627, 106 S.Ct.
2718, 2722-23, 91 L.Ed.2d 512 (1986) ]. We thus must answer
three relevant questions: (1) whether the state proceedings
"constitute an ongoing state judicial proceeding;" (2)
whether the proceedings "implicate important state interests;"
and (3) whether there is "an adequate opportunity in the state
proceedings to raise constitutional challenges." Middlesex
[County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423,
432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982) ].

New Orleans Pub. Serv., Inc. v. City of New Orleans, 798 F.2d 858,

8
One of the more vital considerations underlying the
doctrine is

the notion of "comity," that is, a proper respect for
state functions, a recognition of the fact that the
entire country is made up of a Union of separate state
governments, and a continuance of the belief that the
National Government will fare best if the States and
their institutions are left free to perform their
separate functions in their separate ways.... What the
concept does represent is a system in which there is
sensitivity to the legitimate interests of both State
and National Governments, and in which the National
Government, anxious though it may be to vindicate and
protect federal rights and federal interests, always
endeavors to do so in ways that will not unduly
interfere with the legitimate activities of the States.

Younger, 401 U.S. at 44, 91 S.Ct. at 750.

12
863-64 (5th Cir.1986), cert. denied, 481 U.S. 1023, 107 S.Ct. 1910,

95 L.Ed.2d 515 (1987).

The first of the three factors springs from the obvious point

that "[w]hen no state proceedings are pending, a federal action

does not interfere with or insult state processes and "the policies

on which the Younger doctrine is premised "have little force...."

' " Thomas v. Texas State Bd. of Medical Examiners, 807 F.2d 453,

457 (5th Cir.1987) (quoting Concerned Citizens of Vicksburg v.

Sills, 567 F.2d 646, 650 (5th Cir.1978) (quoting Lake Carriers'

Ass'n v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 1756-57, 32

L.Ed.2d 257 (1972))). As noted, for Younger abstention, state

proceedings must be ongoing and "judicial in nature". See New

Orleans Pub. Serv., 798 F.2d at 863-64; Middlesex, 457 U.S. at

432, 102 S.Ct. at 2521.

The district court ruled that Younger abstention was

inappropriate because there was no ongoing state proceeding. The

City does not attempt to controvert the "no ongoing proceeding"

ruling. As a general rule, issues not presented adequately in a

brief are deemed abandoned. E.g., United States v. Ballard, 779

F.2d 287, 295 (5th Cir.), cert. denied, 475 U.S. 1109, 106 S.Ct.

1584, 89 L.Ed.2d 916 (1986); Fed.R.App.P. 28(a)(6) (brief must

"contain the contentions of the appellant on the issues

presented"). But, because Younger abstention was raised in

district court and briefed partially here, we will consider it.

Subsequent to the complaints being filed with the Commission

against the Clubs at the end of 1992, the only administrative

13
activity has been the February 1993 letters to the Clubs. In fact,

as noted, only a few days after this action was filed, the City

advised the district court that it would not proceed with an

investigation while this action was pending. Therefore, at issue

is whether the complaint with the Commission and its notification

letter "constitute an ongoing state judicial proceeding",

Middlesex, 457 U.S. at 432, 102 S.Ct. at 2521, so as to satisfy the

first prong of Younger abstention.

In Dayton Christian Schools and Middlesex, the Supreme Court

held that the district courts should have abstained based on

Younger. Unlike the present action, however, the regulating

agencies in those cases had investigated the allegations, made

determinations that probable cause existed, and served formal

charges on the entities. Dayton Christian Schs., 477 U.S. at 623-

24, 106 S.Ct. at 2720-21; Middlesex, 457 U.S. at 428, 102 S.Ct. at

2519. In short, the state action had progressed significantly

beyond that here.

We are confronted with a scenario closer to Telco

Communications, Inc. v. Carbaugh, 885 F.2d 1225 (4th Cir.1989),

cert. denied, 495 U.S. 904, 110 S.Ct. 1923, 109 L.Ed.2d 286 (1990).

Following the filing of a complaint alleging prohibited conduct,

and the commencement of an investigation, a state agency notified

Telco, by letter, of the claimed violations and invited it to

attend an informal factfinding conference. Following attendance at

the conference, Telco sought federal court protection against

further action by the state agency. Id. at 1227. In rejecting the

14
agency's contention that the letter to Telco constituted the start

of administrative proceedings, the Fourth Circuit

decline[d] to hold that Younger abstention is required
whenever a state bureaucracy has initiated contact with a
putative federal plaintiff. Where no formal enforcement
action has been undertaken, any disruption of state process
will be slight.... We hold, therefore, that the period
between the threat of enforcement and the onset of formal
enforcement proceedings may be an appropriate time for a
litigant to bring its First Amendment challenges in federal
court. Indeed, if this time is never appropriate, any
opportunity for federal adjudication of federal rights will be
lost.

Id. at 1229 (footnote omitted).9 The City's contact with the Clubs

has not progressed even as far as that in Telco.

We need not determine whether there was an ongoing state

proceeding. As noted, we review a decision not to abstain only for

abuse of discretion. As reflected above, the district court's

ruling that there was no ongoing proceeding does not constitute an

abuse of that discretion, especially in light of the fact that the

City has not sought to controvert that ruling. Therefore, we need

not proceed further in considering Younger abstention.

2.

Alternatively, under Railroad Comm'n of Tex. v. Pullman Co.,

312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), "federal courts

should abstain from decision when difficult and unsettled questions

of state law must be resolved before a substantial federal

constitutional question can be decided." Hawaii Hous. Auth. v.

9
Distinguishing between informal and formal proceedings,
based on Virginia commonwealth law, the Fourth Circuit held also
that the fact-finding conference was not "judicial in nature", an
issue we need not address.

15
Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 2327, 81 L.Ed.2d 186

(1984). "Pullman abstention ... is addressed to the

inappropriateness of federal court resolution of difficult or

unsettled questions of state law and the undesirability of reaching

constitutional questions that might be mooted by the application of

state law." Word of Faith, 986 F.2d at 967.

As noted, "[t]he abstention doctrine is not an automatic rule

applied whenever a federal court is faced with a doubtful issue of

state law; it rather involves a discretionary exercise of a

court's equity powers." Baggett v. Bullitt, 377 U.S. 360, 375, 84

S.Ct. 1316, 1324, 12 L.Ed.2d 377 (1964). More accurately, as also

noted, abstention is the exception, not the rule. Nissan Motor

Corp. in U.S.A. v. Harding, 739 F.2d 1005, 1008 (5th Cir.1984).

Thus, our court has recognized that

the extraordinary decision to stay federal adjudication
requires more than an ambiguity in state law and a likelihood
of avoiding constitutional adjudication. A district court
must carefully assess the totality of circumstances presented
by a particular case. This requires a broad inquiry which
should include consideration of the rights at stake and the
costs of delay pending state court adjudication.

Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir.1981), cert.

dismissed, 459 U.S. 1012, 103 S.Ct. 368, 74 L.Ed.2d 504 (1982).10

The City asserts that this case involves questions of state

10
In rejecting Pullman abstention, the district court relied
on three bases: (1) the Commission's proceedings did not provide
the Clubs with an obvious method for securing a definitive ruling
that could be pursued with full protection of their
constitutional claims; (2) Pullman abstention is generally
inappropriate where First Amendment or fundamental rights are at
issue; and, (3) Pullman abstention turns on the existence of an
ambiguous issue of state law, but neither party had demonstrated
that the Chapter is ambiguous.

16
and local law which have never been adjudicated by a state court.

Although the City acknowledges that this alone does not warrant

Pullman abstention, it suggests abstention is still appropriate, by

intimating that the Chapter is susceptible to an interpretation

other than its plain meaning. Such a proposition defies one of the

traditional principles of statutory interpretation, viz., courts

must first look at the plain meaning of a statute's language.

Furthermore, Pullman abstention

contemplates that deference to state court adjudication only
be made where the issue of state law is uncertain. If the
state statute in question, although never interpreted by a
state tribunal, is not fairly subject to an interpretation
which will render unnecessary or substantially modify the
federal constitutional question, it is the duty of the federal
court to exercise its properly invoked jurisdiction.

Harman v. Forssenius, 380 U.S. 528, 534-35, 85 S.Ct. 1177, 1182, 14

L.Ed.2d 50 (1965); accord City of Houston, Tex. v. Hill, 482 U.S.

451, 469, 107 S.Ct. 2502, 2514, 96 L.Ed.2d 398 (1987) ("[W]hen a

statute is not ambiguous, there is no need to abstain even if state

courts have never interpreted the statute."). The City has failed

to identify, and we fail to find, any ambiguity in the Chapter

which would support, let alone demand, abstention.

The City's second basis for Pullman abstention is that the

Clubs raise state constitutional claims mirroring the federal

constitutional rights claimed abridged.11 The only time that a

state constitutional provision may warrant abstention is when that

constitutional provision is so interrelated with the statute or

11
Because the district court found a First Amendment
violation, it did not rule on the state law claims.

17
ordinance at issue that it can be said state law is ambiguous.

Examining Bd. of Eng'rs, Architects & Surveyors v. Flores de Otero,

426 U.S. 572, 598, 96 S.Ct. 2264, 2279, 49 L.Ed.2d 65 (1976);

Pollard v. Cockrell, 578 F.2d 1002, 1010 (5th Cir.1978). As the

Supreme Court noted, "to hold that abstention is required because

[an ordinance] might conflict with ... broad and sweeping [state]

constitutional provisions, would convert abstention from an

exception into a general rule." Flores de Otero, 426 U.S. at 598,

96 S.Ct. at 2279.

Finally, the City maintains that if the district court were to

abstain, the Clubs' constitutional rights would not be infringed or

suspended while their privacy claims are asserted in an

administrative hearing. But, again, it is the Commission's very

procedures and investigation which are at the heart of the threat

to the Clubs' associational rights. See Red Bluff Drive-In, Inc.

v. Vance, 648 F.2d 1020, 1032 (5th Cir.1981) ("in view of the high

cost of abstention in the context of suits seeking review of

statutes exerting a purported chilling effect on First Amendment

rights, ... we cannot say that [the] district court abused its

discretion in declining to invoke Pullman abstention"), cert.

denied, 455 U.S. 913, 102 S.Ct. 1264, 71 L.Ed.2d 453 (1982).12

12
Although Red Bluff involved a facial challenge to a
statute, the court's recognition that abstention may result in a
high cost to First Amendment rights is applicable in this case,
despite being an as-applied challenge. As discussed, infra, the
Commission's investigative powers and procedures strike at the
heart and soul of the Clubs' and their members' associational
rights. If the district court were to stay its hand while the
City violates that which the Constitution protects, then the
Clubs' and their members' First Amendment freedoms would be for

18
 In sum, the district court did not abuse its discretion in

declining to abstain.13 Therefore, we turn to the merits.

C.

The critical substantive issues are whether the Clubs are

private entities protected by the First Amendment; and, if so,

whether the Chapter's procedures interfere impermissibly with that

protection. But, first, we must consider whether the Clubs'

challenge to the Chapter is facial or as-applied.

1.

The Clubs maintain they are challenging the Chapter only as

applied to them. The City counters that, in reality, it is a

facial attack, requiring, therefore, that the Clubs demonstrate

either (1) that the Chapter could never be applied in a valid

manner, or (2) that, although it may be applied validly against the

Clubs and others, the Chapter is so broad that it may inhibit the

constitutionally protected rights of third parties. City Council

of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, 104

S.Ct. 2118, 2125, 80 L.Ed.2d 772 (1984).

Although the City states correctly the standard applied in

facial challenges, it misconstrues the relief the Clubs seek, the

gist of their arguments, and the supporting evidence. See Bowen v.

Kendrick, 487 U.S. 589, 627-28, 108 S.Ct. 2562, 2584-85, 101

L.Ed.2d 520 (1988) (Blackmun, J., dissenting). The Clubs contend

naught. Furthermore, as discussed, other factors contributed to
the district court's decision not to abstain.
13
Of interest, as noted, the City waited almost five months
after the Clubs filed suit to raise abstention.

19
that, based on their unique attributes, application of the Chapter

would impermissibly interfere with their associational and privacy

rights; they do not claim that the ordinance is incapable of being

applied to any other entity or individual. Thus, we are faced with

an as-applied challenge. See Moore v. City of Kilgore, Tex., 877

F.2d 364, 390 (5th Cir.) (court will not consider a facial

challenge to a regulation when plaintiff has succeeded in an

as-applied challenge and when he failed to assert the rights of

third parties), cert. denied, 493 U.S. 1003, 110 S.Ct. 562, 107

L.Ed.2d 557 (1989).14

2.

On three occasions during the 1980s, the Supreme Court

addressed the extent to which the Constitution protects the

associational freedom of private clubs. New York State Club Ass'n,

487 U.S. at 1, 108 S.Ct. at 2227-28 (1988); Board of Directors of

Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 545, 107 S.Ct.

1940, 1945-46, 95 L.Ed.2d 474 (1987); Roberts v. United States

Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 3249-50, 82 L.Ed.2d

462 (1984). These cases provide that the Constitution protects two

types of associational freedom:

First, the Court has held that the Constitution protects
against unjustified government interference with an
individual's choice to enter into and maintain certain
intimate or private relationships. Second, the Court has

14
In addition, we note the obvious: the Clubs have been
identified through a discrimination charge as potential violators
of the Chapter and have been so informed. Although the formal
mechanism of the Commission's investigation has not been
initiated, it would be just a matter of time before at least
some, if not all, of the procedures went into play.

20
 upheld the freedom of individuals to associate for the purpose
of engaging in protected speech or religious activities.

Rotary Club, 481 U.S. at 544, 107 S.Ct. at 1945. This appeal

implicates the former—private association.15

The right of private association protects the choice of

individuals and organizations "to enter into and maintain certain

intimate human relationships ... against undue intrusion by the

State...." Roberts, 468 U.S. at 617-18, 104 S.Ct. at 3249.

15
Because this case concerns clubs, we use the term "private
association" to refer to the above referenced constitutional
"protect[ion] against unjustified government interference with an
individual's choice to enter into and maintain certain intimate
or private relationships." Rotary Club, 481 U.S. at 544, 107
S.Ct. at 1945. For this protection, the term "intimate
association" is sometimes used by courts; but, that term seems
better suited for relationships, such as marriage, of a more
intimate nature than those formed or forged in a private club.

In any event, and far more importantly, the Court
acknowledged in Roberts that, to secure individual liberty,
the formation and preservation of highly personal
relationships must be protected against unjustified state
interference. It then noted that the constitutional
protection "afforded such relationships reflects the
realization that individuals draw much of their emotional
enrichment from close ties with others. Protecting these
relationships from unwarranted state interference ...
safeguards the ability independently to define one's
identity that is central to any concept of liberty."
Roberts, 468 U.S. at 619, 104 S.Ct. at 3250. Other private
relationships identified by the Court as exemplifying these
considerations, and thus being entitled to constitutional
protection, included marriage, childbirth, the raising and
education of children, and cohabitation with one's
relatives. Id. at 619, 104 S.Ct. at 3250. But, the Court
did not limit constitutional protection to familial
situations; it recognized simply that these relationships
possess those qualities which "are likely to reflect the
considerations that have led to an understanding of freedom
of association as an intrinsic element of personal liberty."
Id. at 620, 104 S.Ct. at 3250-51. Based on an appreciation
of this, the Court developed the factors, discussed infra,
utilized in determining the extent to which an association
is entitled to constitutional protection.

21
"Determining the limits of state authority over an individual's

freedom to enter into a particular association ... unavoidably

entails a careful assessment of where that relationship's objective

characteristics locate it on a spectrum from the most intimate to

the most attenuated of personal attachments." Id. at 620, 104

S.Ct. at 3251. In determining whether a particular association is

sufficiently private to warrant constitutional protection, as well

as the scope of that protection, the Court has considered several

factors, including: (1) the organization's size; (2) its

purposes; (3) the selectivity in choosing its members; (4) the

congeniality among its members; (5) whether others are excluded

from critical aspects of the relationship; and, (6) other

characteristics that in a particular case may be pertinent.16

Rotary Club, 481 U.S. at 546, 107 S.Ct. at 1946; Roberts, 468 U.S.

at 620, 104 S.Ct. at 3250-51.

Pursuant to our well-known standard of review for summary

judgments, we conduct a de novo review of the summary judgment

record to determine whether there is a genuine issue of material

fact, and if there is none, whether the Clubs are entitled to

16
Whether an organization is a private club arises more
often in cases dealing with Title II of the Civil Rights Act of
1964. See 42 U.S.C. § 2000a (barring discrimination in places of
public accommodation). In those cases, courts have examined
other factors to determine whether Title II's private club
exception applies. The other factors include: (1) the history
of the organization; (2) the use of facilities by nonmembers;
(3) whether the club advertises for members; and, (4) whether
the club is nonprofit or for profit. Welsh v. Boy Scouts of Am.,
993 F.3d 1267, 1276 (7th Cir.1993). These additional factors may
fall into the "other characteristics" category in considering an
assertion of constitutional private association freedom.

22
judgment as a matter of law. E.g., Fed.R.Civ.P. 56; D.E.W., Inc.

v. Local 93, Laborers' Int'l Union of N. Am., 957 F.2d 196, 199

(5th Cir.1992). The City contests two rulings on the merits by the

district court: that the Clubs have private club status; and,

that the Chapter, as applied, violates their constitutional rights.

Only to the extent that it challenges the private club status

ruling does the City contest the district court's subsequent

conclusion that the Clubs "are entitled to the fullest protection"

of the First Amendment.17 To do otherwise would run contrary to

section 40C-103 of the Chapter:

A Club ... is distinctly private in character if ...:

....

(2) its character as an institution, club, or association is such
that, under the constitutional doctrines of freedom of
association (including expressive association) and privacy
prevailing in the law at the time of the hearing, the
Constitution of this state or of the United States requires
that Section 40C-102 [ ("Unlawful practices") ] not be applied
against it.

As noted, consistent with prevailing law, and as reflected in the

criteria in the Chapter for establishing "distinctly private"

status, the City must prove more than the fact that a club might

serve to promote or advance business or a business relationship

between, or for, its members.

17
After determining that no material fact issue existed and
recognizing the spectrum upon which private relationships may
fall, the district court evaluated the several factors and
concluded that the Clubs "are entitled to the fullest protection
of the First Amendment's right to privacy and freedom of intimate
association" because they "met every factor in determining
private club status and because they have very selective
membership policies designed to ensure comradery and close
personal acquaintances".

23
 Obviously, business benefit might spring from any association,

meeting, or encounter. It is well known that ofttimes it is "not

what you know, but who you know"; and people often prefer, in any

event, to do business with friends or acquaintances. But this fact

alone cannot be the basis for whether a club receives private

association protection under the First Amendment. If it were, no

club could be private for purposes of that protection. The

City—and the Chapter—recognize this; hence, the City must prove

more (or, for summary judgment purposes, present a material fact

issue).18 See, e.g., Roberts, 468 U.S. at 633, 104 S.Ct. at 3257-

18
In its brief, the City states that government "has
absolutely no legitimate interest in the affairs of truly private
Clubs who have not been interjected into public economic life;
and [posits that] it may well be that the ... clubs will be
determined to be distinctly private in the ... Commission
proceedings." But, without any reference to the record, it then
claims that the Clubs have been injected into public economic
life:

Surely a substantial issue of fact was raised as to the
alleged "non-business" character of the Clubs. In
terms of the City's legitimate interest in regulating
trade and economic activity to prevent discrimination,
the entanglement of a club in business affairs should
not be ignored because the club has been consistently
"exclusive"—when clubs become entangled in the public
life of a community through subsidization by businesses
who derive a business advantage from the club,
"exclusiveness" (or discrimination against
disadvantaged groups) is precisely the evil which the
state seeks to inhibit under its police power. The
state should not permit a business-related club—whose
members derive tax and income advantages by having
their businesses pay their dues and fees as a
legitimate business expense—to insulate its
discrimination from government regulations by showing
how narrow[,] long-standing, and thorough it has been
in excluding all but a select group of white
non-semitic males of a limited ethnic genealogy.

In a City in which both social institutions and major

24
58 (O'Connor, J., concurring). But, as shown infra, it has failed

totally to do so.

a.

The City maintains that the following creates a material fact

issue, making summary judgment improper: "the Clubs (especially

the Boston Club) have historically been funded in large part by the

businesses and professional entities of its members, reflecting

that these business entities viewed club activities as being in

furtherance of trade, business and professional advancement."19

economic institutions have historically been controlled
and dominated by an "exclusive" small sector of
society, it is obvious that the utility of "exclusive"
clubs for business purposes within "our own" set will
be recognized by historically "exclusive" economic
institutions such as banks, law firms, and "old line"
business companies.

(Emphasis by City.)
19
As hereinafter quoted, in response to the Clubs' summary
judgment motion, the City made a similar conclusional claim in
district court; it did not dispute the private status of those
clubs on any basis except that they were places for promoting
business:

Plaintiffs are not entitled to a declaratory
judgment or an injunction at this time because genuine
issues of material fact relevant to their individual
statuses preclude summary judgment. Defendants do not
contest Plaintiffs' claims and evidentiary support that
they are ... non-profit corporations whose members have
common social interests and congeniality; that they
each have selective and exclusive membership policies
as well as restrictive (though very different) guest
policies. However, Plaintiffs' statutes remain at
issue because some evidence exists to contradict their
joint claims that they are not ... fora for their
members to create or foster valuable business contacts
or that they otherwise do not serve or operate to
advance the employment and professions of many of their
members.

25
But, this broad assertion has no support in the summary judgment

record. The City concedes that the only evidence supporting this

broad assertion is that, in the past, a local bank paid fees for

six of its officers at some of the clubs.20 The bank had paid for

either their dues, luncheon expenses, or both.21 It is undisputed

that these payments occurred.

b.

In actuality, what the City contests is the legal

significance to be accorded those payments; no material fact issue

exists in the summary judgment record. The district court's

conclusion that the Clubs constitute private entities entitled to

the fullest protection of the First Amendment was not a finding of

fact; it was a conclusion of law based on that record. But,

before reviewing freely this legal conclusion, it is necessary to

review what the record discloses.

(i)

Founded in the 1800s, the Clubs have a longstanding history of

existing exclusively for private, social purposes. In addition to

serving purely social functions, the Clubs prohibit the transaction

20
Surprisingly, the City did not file a reply brief. It
made this concession at oral argument in response to a direct
question on this point.
21
With respect to the six bank officers, the bank had paid
such expenses for all six at the Boston Club, for one at the
Pickwick Club, and for one at Louisiana Debating. We could not
locate, nor did the City identify, any evidence indicating that
any Stratford Club member's dues or expenses were paid by his
employer.

26
or discussion of any business on their premises.22 In order to

enforce this prohibition, no member or guest can display or offer

a business card, or display business papers. Accordingly, the

Clubs have a purely social purpose and history.23

22
Interestingly, it appears that the nonresident
complainant's reason for wanting to join the Clubs was for
business purposes, as reflected by the following deposition
testimony by the Commission's Executive Director:

Q. Do you know ... why [the complainant] elected
to contact these four clubs?

A. The information that he personally provided to
the Commission, namely, myself ...—because that
particular question was asked—was that he had
intentions of establishing a business here in New
Orleans—namely, a temporary personnel service, which is
the same type of business that he has in San Francisco
and San Diego, California. It was his desire to
initially try to become [a] member[ ] of not one but
all four clubs for the purposes of establishing
business relations and contacts necessary for him to
start to meet potential clients for his business—at
least, that was what was provided to me.

Q. So [the complainant] fully intended to use the
facilities of the clubs and the membership of the clubs
for business purposes?

A. Yes.

(But see note 6, supra; the complainant stated that, in
addition to San Francisco, his business was in Los Angeles,
not in San Diego as testified by the Executive Director.)
23
In contrast, the purpose of the Rotary Clubs was described
as "to produce an inclusive, not exclusive, membership, making
possible the recognition of all useful local occupations, and
enabling the club to be a true cross section of the business and
professional life of the community." Rotary Club, 481 U.S. at
546, 107 S.Ct. at 1946. They sought inclusive fellowship based
on diversity of interests. Id. at 546-47, 107 S.Ct. at 1946-47.
Accordingly, the Supreme Court noted that this did not suggest
"the kind of private or personal relationship to which we have
accorded protection under the First Amendment." Id. at 547, 107
S.Ct. at 1946.

27
 (ii)

The Clubs' members share common social interests and

backgrounds; often, the relationships predate membership in the

Clubs through either family, religious activity, or other social

groups. The criteria the Clubs use in selecting members include

character, relationships and acquaintances, congeniality, and

compatibility. Thus, a close nexus exists between the Clubs'

purposes and membership criteria.24

Like the membership criteria, the admission process is very

restrictive. Only existing members may propose a new member, and

a proposal does not ensure admission. The Clubs engage in a fairly

rigorous screening process to determine whether the prospective new

member meets that club's criteria. Finally, whether to admit the

prospective member is voted on by the general membership. A very

limited number of objections deny membership: five at the Boston

Club; three at each of the others.25

24
In contrast, Rotary Clubs sought "to produce an inclusive,
not exclusive, membership", and, in so doing, were instructed "to
avoid "arbitrary limits on the number of members in the club,'
and to "establish and maintain a membership growth pattern.' "
Rotary Club, 481 U.S. at 546-47, 107 S.Ct. at 1946. As for the
Jaycees, its local chapters were described as "basically
unselective groups" who "[a]part from age and sex", did not
"employ any criteria for judging applicants for membership, and
new members [were] routinely recruited and admitted...."
Roberts, 468 U.S. at 621, 104 S.Ct. at 3251.
25
At the Jaycees, "new members [were] routinely recruited
and admitted with no inquiry into their backgrounds. In fact, a
local officer testified that he could recall no instance in which
an applicant had been denied membership on any basis other than
age or sex." Roberts, 468 U.S. at 621, 104 S.Ct. at 3251. Local
Rotary Clubs were "instructed to "keep a flow of [membership]
prospects coming' to make up for [a 10% annual] attrition [rate]
and gradually to enlarge the membership." Rotary Club, 481 U.S.

28
 (iii)

Each club has only one facility, which is maintained for the

exclusive use of its members and guests. No signs outside the

Clubs' buildings identify the locations to the public.26 Nonmembers

are strictly prohibited from using the facilities.

Even though the Clubs permit members to bring guests, this

practice is severely limited. Louisiana Debating prohibits its

members from bringing or inviting any male guests, at any time and

under any circumstances. Female guests are permitted rarely, but

usually, they are the members' wives. At the Boston and Stratford

Clubs, male residents of the City are strictly prohibited from

attending as guests; women and children residents may be

accompanied by a member, but on extraordinary occasions; the

inviting of male nonresidents is strictly limited according to the

time, frequency, and occasion of the visit. The Pickwick Club

permits nonresident males to attend as guests during the noonday

meals, provided the guest is a friend or close relative of the

member and has some basis for a social acquaintance with other

members; women and resident males are permitted, but only at

limited times and with the approval of the club's Board of

Governors.27

at 546, 107 S.Ct. at 1946.
26
This is in stark contrast to the Rotary Clubs, which
sought to keep their "windows and doors open to the whole world".
Rotary Club, 481 U.S. at 547, 107 S.Ct. at 1947.
27
For the Jaycees, "much of the activity central to the
formation and maintenance of the association involve[d] the
participation of strangers to that relationship." Roberts, 468

29
 (iv)

The Clubs are managed and controlled locally by their members;

either directly, by an elected Board of Governors, or by both;

none of the Clubs is associated with or controlled by a national

organization. Additionally, the Clubs restrict total membership to

a limited number. The Pickwick Club's regular members are limited

to 500; Louisiana Debating, 325 residents; the Stratford Club,

350 residents and a limited number of nonresidents; and, the

Boston Club, 600 residents and 400 nonresidents.28 Additionally,

the Clubs operate as not-for-profit corporations.

c.

Against this factual backdrop, we note again that the Chapter,

U.S. at 621, 104 S.Ct. at 3251. As for the Rotary Clubs, many of
their "central activities [were] carried on in the presence of
strangers" and "[m]embers [were] encouraged to invite business
associates and competitors to meetings". Rotary Club, 481 U.S.
at 547, 107 S.Ct. at 1946.
28
The Jaycees' policy-making authority was vested in a
national board consisting of delegates from local chapters; it
had 7,400 local chapters. Roberts, 468 U.S. at 613, 104 S.Ct. at
3247. Rotary International had 19,788 local organizations in 157
countries. Rotary Club, 481 U.S. at 538-40, 546, 107 S.Ct. at
1942-43, 1946.

As for the number of members, the Jaycees had 295,000
national members, and Rotary International nearly 900,000
members. As Justice O'Connor recognized in New York State
Club Ass'n, a club in a large city, such as New York, "with
over 400 members may still be relatively intimate in nature,
so that a constitutional right to control membership takes
precedence" over the city's attempt to ban discrimination
within the club. 487 U.S. at 19, 108 S.Ct. at 2237
(O'Connor, J., concurring). We note also that the Seventh
Circuit determined that the Boy Scouts was a private club
under the Civil Rights Act, despite having five million
members. Welsh, 993 F.2d at 1276-77 (despite its size, Boy
Scouts was still a private club because of its "plan or
purpose of exclusiveness").

30
adopted in 1991, was modeled after the New York City ordinance at

issue, in 1988, in New York State Club Ass'n, where the Court

recognized that "there may be clubs that would be entitled to

constitutional protection". New York State Club Ass'n, 487 U.S. at

12, 108 S.Ct. at 2234. Obviously, the Clubs are not similar to the

Jaycees or the Rotary. Relatively small in size, they seek to

maintain an atmosphere in which their members can enjoy the

comradery and congeniality of one another. Employing very

restrictive guest and admission policies, they seek to remain

isolated. In light of the undisputed facts, including the isolated

dues payments by a single employer, we conclude, as did the

district court, that the Clubs constitute organizations whose

location on the spectrum of personal attachments places them near

those that are "most intimate".29 Accordingly, they enjoy the

29
As noted, the only evidence supporting the City's
contention that the Clubs are not private entities entitled to
constitutional protection was the limited payment of dues or
luncheon expenses by a local bank for six of its officers who
were members of at least one of the Clubs. Whether such payments
should even be considered in evaluating the status of an
organization has not been addressed by the Supreme Court, nor do
we need to decide that question here. For purposes of this
opinion, we assume, without deciding, that they should be
considered.

The City's reliance on these payments is evidently
based, in part, on the Chapter's definition of "public
accommodation". The definition includes clubs which
"regularly receive[ ] payment for dues, fees, ... meals or
beverages, directly or indirectly, either from or on behalf
of nonmembers or members for or in the direct or indirect
furtherance of trade or business...." Section 40C-101(2).
As noted, this definition is based on the ordinance
considered in New York State Club Ass'n. That ordinance
covered clubs which had at least 400 members, provided
regular meal service, and received regular payments
"directly or indirectly from or on behalf of nonmembers for

31
fullest protection of their right of private association.

3.

Having determined that the Clubs are constitutionally

protected private entities, we arrive at the critical issue in this

appeal: whether the proposed investigation of the administrative

complaints, as well as other Commission proceedings that might

follow, threatens unduly the Clubs' right of private association.

We conclude that it does.

Of course, as is also true for expressive associational

rights, the constitutional right of private association is not

protected absolutely against infringement by the state. As stated

in Rotary Club, the protection is "against unjustified government

interference". 481 U.S. at 544, 107 S.Ct. at 1945. As a

fundamental right, however, any such infringement is subject to

strict scrutiny. McCabe v. Sharrett, 12 F.3d 1558, 1566 (11th

Cir.1994). Strict scrutiny analysis requires the government to

demonstrate that (1) the state action serves a compelling state

interest which (2) cannot be achieved through means significantly

less restrictive of one's associational freedom. See, e.g., Dart

v. Brown, 717 F.2d 1491, 1498 (5th Cir.1983), cert. denied, 469

the furtherance of trade or business." New York State Club
Ass'n, 487 U.S. at 12, 108 S.Ct. at 2233.

In addressing the criteria in the New York ordinance,
the Court stated that "[t]hese characteristics are at least
as significant in defining the nonprivate nature of these
associations, because of the kind of role that strangers
play in their ordinary existence...." Id. at 12, 108 S.Ct.
at 2233 (emphasis added). The City expanded the definition
in New York State Club Ass'n to include payments received on
behalf of, not only nonmembers, but also members.

32
U.S. 825, 105 S.Ct. 105, 83 L.Ed.2d 49 (1984). See also Thomas v.

Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718, 101

S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981) ("The state may justify an

inroad on religious liberty by showing that it is the least

restrictive means of achieving some compelling state interest");

Clark v. Library of Congress, 750 F.2d 89, 95 (D.C.Cir.1984)

(burden is on the government to show strict scrutiny requirements

are met).

As for the first prong of this analysis, it is uncontested

that the eradication of discrimination in places of public

accommodation constitutes a compelling state interest. Thus, the

crux of this appeal is whether the means adopted by the City

interfere impermissibly with the Clubs' right of private

association. The City failed to address directly how its

investigative methods and other procedures are the least intrusive

interference with that right. Instead, in order to demonstrate

that the procedures do not interfere impermissibly, the City

addresses only three areas; it claims (1) that the Chapter would

not require highly public proceedings; (2) that it could not

demand membership lists from the Clubs; and, (3) that liberal

discovery in the federal court proceeding to which the Clubs

subjected themselves equates with the powers it possesses under the

Chapter.30 We consider these claims to be the City's attempt to

30
These claims appear to be in response to the district
court's conclusion that the Clubs established

that there is a reasonable probability that the
[Commission's] investigation into the complaints of

33
satisfy its burden of showing that its methods and procedures are

the least intrusive.

In analyzing whether these identified City procedures are the

least intrusive upon the Clubs' right of private association, we

keep in mind that "associational rights "are protected not only

against heavy-handed frontal attack, but also from being stifled by

more subtle governmental interference,' ... and that these rights

can be abridged even by government actions that do not directly

restrict individuals' ability to associate freely." Lyng v.

International Union, United Auto. Aerospace & Agric. Implement

Workers of Am., 485 U.S. 360, 367 n. 5, 108 S.Ct. 1184, 1190 n. 5,

99 L.Ed.2d 380 (1988) (quoting Bates v. City of Little Rock, 361

U.S. 516, 523, 80 S.Ct. 412, 416-17, 4 L.Ed.2d 480 (1960)).

a.

With respect to proceeding on the complaint, the

investigation and hearing fail to ensure adequate safety for the

Clubs' private association right. The City attempts to demonstrate

that any hearing would not be overly intrusive by relying upon

Louisiana state statutes. Specifically, it contends that

discrimination would publicly reveal its membership
lists and other intimate aspects of [the Clubs] that
would have a chilling affect on their members' First
Amendment rights.... The [Commission's] investigative
powers include the right to compel production of
documents and testimony of witnesses at a public
hearing. Judging from [the City's] First Request for
Production of Documents, the breadth of the testimony
and documents likely to be sought during the public
hearings by the [Commission] is far-reaching and
certainly contains private and sensitive Club matters
deserving of constitutional protection.

34
La.Rev.Stat. 51:2262(F), in conjunction with the state's open

meetings law (La.Rev.Stat. 42:6.1(A)(4) & (8)), provide an adequate

safeguard against intrusion into the Clubs' intimate affairs.31 At

oral argument, however, while acknowledging that the hearing is

public, the City suggested, without any positive support in the

Chapter, that the information could be considered in camera.

The City's reliance upon state statute is misplaced for

several reasons. First, state law does not compel the Commission

to operate in executive session. The decision to do so is

discretionary ("A public body may ..."). Thus, even if state law

empowered the Commission to conduct its hearing in executive

session, that is solely at the option of the Commission. Second,

31
La.Rev.Stat. 51:2262(F) provides:

It is unlawful for a commissioner or employee of the
commission to make public with respect to a particular
person, without his consent, information obtained by
the commission pursuant to its authority under this
Section except as reasonably necessary to the conduct
of a proceeding under this Chapter.

The open meetings law, La.Rev.Stat. 42:6, provides, in part,
that "executive session shall be limited to matters allowed
to be exempted from discussion at open meetings by R.S.
42:6.1." In turn, La.Rev.Stat. 42:6.1(A), provides, in
pertinent part:

A public body may hold an executive session ... for one
or more of the following reasons:

....

(4) Investigative proceedings regarding
allegations of misconduct.

....

(8) Or any other matters now provided for or as
may be provided for by the legislature.

35
the City's reliance on La.Rev.Stat. 51:2262(F) attempts improperly

to expand the statute's scope. It applies only to the Louisiana

Commission on Human Rights, not the Commission created by the

Chapter. See La.Rev.Stat. 51:2232(1) (" "Commission' means the

Louisiana Commission on Human Rights").

Moreover, even if we assume that the Commission's

investigative procedures and the hearing could be kept from being

public, section 40C-7 directs the Commission, "after the completion

of any hearing, [to] make a report in writing to the Mayor and City

Council setting forth the facts found and its recommendations or

decision...." The City has failed to indicate how such a

disclosure will not infringe impermissibly upon the Clubs' right of

private association.

b.

The City has failed also to demonstrate that the Chapter

prevents it from demanding the Clubs' membership lists. The City

maintains that section 40C-52 provides an adequate safeguard. The

section provides that "[t]he Commission shall not require the

production of names from a general membership list of any club that

is a place of public accommodation."

But, the section refers only to "place[s] of public

accommodation"; no membership list protection is provided for

private clubs. The City claims that it would be absurd not to

apply section 40C-52 to private clubs during its proceedings; but,

the Chapter is very clear—a private club, i.e., not a place of

36
public accommodation, is not protected.32

c.

By coming into federal court, the Clubs became subject to

discovery; this may have resulted in their disclosing certain

information, including about their members, which they would have

otherwise preferred not to do. On the other hand, it is arguable

that it is the least intrusive method available to them for the

vindication of their right of private association. At least in

federal court, the Clubs enjoy two protections unavailable before

the Commission. First, they were before a neutral judge, not a

hearing officer appointed by the Commission's Executive Director.

Second, federal courts control the disclosure of evidence in

discovery and at a hearing via rules of evidence and civil

procedure; the Chapter provides that a Commission hearing "shall

not be bound by the strict rules of evidence prevailing in courts

of law or equity." Section 40C-53(c)(2). Additionally, the City

stated at oral argument that, in conducting a hearing, it would be

entitled to do everything it did in federal court with the

exception of requesting membership lists. (As noted, it is far

from clear that the City would not be able to obtain membership

lists in a Commission proceeding.)

32
At oral argument, the City acknowledged that the
Commission has the power to demand the tax returns of members,
but asserted that they could be redacted in order not to disclose
the members' names. (Apparently, this power flows from the
Commission's subpoena power. Section 40C-53(a).) The power to
mandate the disclosure of even redacted tax returns indicates how
intrusive the Chapter probes into the private affairs of the
Clubs and their members.

37
 In sum, the City has failed to meet its burden of

demonstrating how the means it has selected to enforce the Chapter

are the least intrusive on the Clubs' and their members' right of

private association.33 We hold, therefore, that the Chapter, as

applied to the Clubs, is unconstitutional.

III.

Discrimination can find no rest in a place of public

accommodation. Whether it should be suffered to abide in private

clubs is debatable among persons of good will. But, the

Constitution trumps; those clubs have a right of private

association under the First Amendment with which the government may

not interfere impermissibly. Concomitantly, if those clubs must go

public, in order to remain private, then their privacy rights ring

hollow indeed; "the flame is not worth the candle".

Perhaps the Clubs should have elected instead to seek an

administrative "distinctly private" exemption under the Chapter;

no doubt, that might well have been the easier course. But, the

easier course is not the required course; were it so, this would

be a far different Nation.34 And, when persons seek to vindicate

33
The district court has retained jurisdiction. As noted,
the City addressed only three items in seeking to meet its burden
of demonstrating that its means are the least intrusive on the
Clubs' private association right. It goes without saying that
our holding that it failed to meet its burden as to those three
items should not be read to mean necessarily that, if it revised
its procedures as to them, the Chapter would otherwise pass
constitutional muster in this, or a similar, case.
34
It is well to remember that, boiled down, individual
liberty under the First Amendment is at stake. Roberts, 468 U.S.
at 618, 104 S.Ct. at 3249-50. As already referenced,

38
constitutional rights in federal court, they will be heard, absent

more compelling reasons under that same Constitution for the court

to stay its hand. The judgment is

AFFIRMED.

. . . . .

the constitutional shelter afforded [certain highly
personal] relationships reflects the realization that
individuals draw much of their emotional enrichment
from close ties with others. Protecting these
relationships from unwarranted state interference
therefore safeguards the ability independently to
define one's identity that is central to any concept of
liberty.

Id. at 619, 104 S.Ct. at 3250. That, in the final analysis,
liberty is at stake brings forward Patrick Henry's
admonition, known to all, at the Virginia Convention in
Richmond, against taking the easier course and not asserting
one's rights in exchange for ease and comfort; it is as
true today as it was in 1775:

Is life so dear or peace so sweet as to be purchased at
the price of chains and slavery? Forbid it, Almighty
God. I know not what course others may take, but as
for me, give me liberty or give me death!

Speech of Patrick Henry (Mar. 23, 1775) in THE REVOLUTIONARY
YEARS 123, 125 (Mortimer J. Adler, ed., 1976).

39