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Zelenka v. United States

Decided: July 11, 1974.

RICHARD J. ZELENKA, PLAINTIFF-APPELLANT,
v.
THE BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF THE UNITED STATES OF AMERICA, ET AL., DEFENDANTS-RESPONDENTS



Conford, Handler and Meanor. The opinion of the court was delivered by Conford, P.J.A.D.

Conford

Plaintiff sustained an adverse summary judgment in the Superior Court, Chancery Division, in his action to be restored to membership in defendant Ridgewood Lodge #1455 of defendant The Benevolent and Protective Order of Elks of the United States of America (Elks) from which he had been expelled in March 1972 by direction of the Grand Forum (national judicial tribunal) of the order. He appeals.

Plaintiff was expelled after a hearing on the charge that he had in March 1971 violated section 183 of the Grand Lodge Statutes which provides, in substance, that no lodge or member should circulate any writing "regarding or pertaining to any question or subject" (presumably one of pertinence to Elks affairs) "without first submitting such * * * writing to the Grand Exalted Ruler [national] for his approval." Violation constitutes "contumacy," and contumacy is cause for expulsion. It is conceded by plaintiff, who is a Past Exalted Ruler of the lodge, that he did contravene the statute in that he, along with a brother member of the lodge, submitted for publication in the Bergen Record, a daily newspaper, a writing seeking to rally fellow Elks to an effort to amend the national rules of the order confining eligibility for membership to "white" male citizens so as to eliminate the racial requisite.*fn1 The essence of the communication is contained in the following excerpt:

We, the undersigned, belong to what we feel is probably the greatest charitable organization in the country. * * * We have never been ashamed, when solicited, to apprise the public of our endeavors, but for the past months many of us Elks have had our consciences seared -- for we have been accused by the public of discriminating -- and they are right. * * * Let those of us that know that we are wrong change it -- at the next Grand Lodge Convention. In keeping with this strong statement, probably the first public statement to be made to the public of such a nature, this concerned committee is calling a private organizational meeting of all Elks interested in amending Section 144 of the Grand Lodge Statutes of the Benevolent and Protective Order of Elks at the next Grand Lodge Convention.

The principal ground of attack by plaintiff upon the expulsion in the trial court, and the sole ground asserted on appeal, is that public policy is offended when an expulsion from a voluntary organization is the result solely of the exercise by a member of his right of free speech guaranteed by the State Constitution in Article I, Section 6 thereof. The trial court, in holding for defendants, expressed agreement with their position that the controlling issue was whether people in a free society did not have a right of free association and the correlative right to "exclude from their midst those individuals with whom they do not wish to associate," whatever the reason therefor.

In April 1971 a proper official of the Ridgewood Lodge brought charges against plaintiff for violation of section 183 of the statute. The presiding justice of the Subordinate (lodge) Forum sustained a "demurrer" filed by plaintiff, and he dismissed the complaint. Thereafter the Grand Exalted Ruler (national) appealed the matter to the Grand Forum, with the resultant hearing and judgment mentioned. No question is raised by plaintiff concerning the regularity of the proceedings in the order.

It is well established in this State as well as elsewhere that the courts will take jurisdiction to grant a remedy for a wrongful expulsion, as distinguished from an exclusion, from a voluntary association. Higgins v. American Society of Clinical Pathologists, 51 N.J. 191, 199 (1968); and see,

Trautwein v. Harbourt, 40 N.J. Super. 247, 259 (App. Div.), certif. den. 22 N.J. 220 (1956). While American and English courts have traditionally been loath to exercise visitorial powers upon voluntary organizations of a purely private nature, Chafee, "The Internal Affairs of Associations Not for Profit," 43 Harv. L. Rev. 993 (1930) passim, particularly those not affecting economic or civic interests, we have nevertheless observed in the Trautwein case:

We can take judicial notice that the Elks order, comprising about 1 I/2 million members, is one of the most widely located fraternal organizations in the country and that membershp in it is highly prized in many communities. There is justification for inferring deep interest in his membership by the present plaintiff, a former head of his lodge. The personal value to plaintiff of his membership in the order thus calls for an evaluation of his relational interests, weighed against the assertion by the order of a constitutional right of selectivity in the private associations of its members. Cf. Trautwein v. Harbourt, supra, 40 N.J. Super. at 267; Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179, 180, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972), Douglas and Marshall, JJ., dissenting.

There is substantial and long-established authority to the effect that the courts will rescind the expulsion of a member of a voluntary association for violation of an internal rule offensive to public policy. Higgins v. American Society ...


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