A. New Jersey Law Against Discrimination
The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. ("LAD"), prohibits unlawful discrimination in places of public accommodation. N.J.S.A. 10:5-12(f) prohibits any operator of a "place of public accommodation" from withholding or denying any person any of its "accommodations, advantages, facilities or privileges" on account of "race, creed, color, national origin, ancestry, marital status, sex, affectional or sexual orientation or nationality." Thus, to be subject to the proscriptions of the LAD, an organization or establishment must be a "place of public accommodation."
The ACFA argues that LAD has no application to this case as a matter of law for two reasons. First, it argues that "the designation of 'Allbreed cat judge' is not a place of public accommodation under the LAD." ACFA Brief at 5. Second, it argues that the ACFA is a purely private association and is therefore not subject to the LAD. Plaintiff, in turn, argues that by framing the issues in this way, the ACFA has distorted the nature of plaintiff's LAD claim. According to plaintiff, she is not claiming that the designation of "allbreed" judge is a "place of accommodation." Rather, she is claiming that the ACFA is a place of accommodation and that the "allbreed" judge designation is a privilege.
I find that plaintiff's formulation of the legal issues involved in this case is the only logical way to proceed. It may be, as the ACFA contends, that this case is not a dispute over membership in a private organization, as Ms. Brounstein continues to be a member of the ACFA. However, this contention begs the threshold question of whether the organization is subject to the proscriptions of the LAD at all. If an organization is subject to the LAD, it is prohibited from discriminating not just as to membership, but as to "any of the accommodations, advantages, facilities or privileges thereof." N.J.S.A. 10:5-12(f) (emphasis added). Thus, rather than asking whether titles or ranks in membership organizations are "places of public accommodations" within the meaning of LAD, I find it is conceptually sounder to ask whether titles or ranks constitute "privileges" within the meaning of the LAD.
I will therefore consider the parties' arguments within the following framework. First, I will consider whether the ACFA itself is a place of public accommodation or a private association. If I find that the ACFA is indeed a place of public accommodation, I will then consider whether the designation of cat show judge is a "privilege" within the meaning of the Act.
1. Is the ACFA a Place of Public Accommodation?
The statutory definition of "place of public accommodation" contains a lengthy, nonexclusive list of different types of facilities and establishments.
In addition, the definition provides that "nothing herein contained shall be construed to include or to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private." N.J.S.A. 10:5-5(1).
The primary New Jersey case interpreting the term "place of public accommodation" in a case involving a membership organization is National Organization for Women v. Little League Baseball, 127 N.J. Super. 522, 318 A.2d 33, aff'd mem., 67 N.J. 320, 338 A.2d 198 (1974).
Little League involved a challenge to the practice of Little League Baseball of excluding girls aged 8 through 12 from participation in its baseball programs. Little League contended that it was not a place of public accommodation because it was a membership organization that did not operate from any fixed parcel of real estate in New Jersey of which it had exclusive possession either by ownership or lease. The court rejected this argument, holding that "the statutory noun 'place' (of public accommodation) is a term of convenience, not of limitation." Id. at 531.
More significantly, the court found that "Little League is a public accommodation because the invitation is open to children in the community at large, with no restriction (other than sex) whatever." Id. (emphasis in original).
The Third Circuit subsequently applied the Little League analysis to a membership organization and further refined the standards for determining whether a membership organization constitutes a "place of public accommodation." Kiwanis Int'l v. Ridgewood Kiwanis Club, 806 F.2d 468 (3d Cir. 1986), reh'g denied, 811 F.2d 247, cert. dismissed, 483 U.S. 1050, 97 L. Ed. 2d 812, 108 S. Ct. 362 (1987). In Kiwanis, which involved a challenge to the exclusion of women from a local Kiwanis club, the court held that it is the "standard of open invitation to all that defines the content of a 'public accommodation,' and establishes the essential character of those organizations which are subject to the statute's proscriptions and those that are not." Id. at 473. The touchstone of the determination of whether a membership organization is a "place of public accommodation" is its selectivity in the admission of its members. See id. Thus, to be considered a public place of accommodations, "the organization or club must invite an unrestricted and unselected public to join as members." Id. at 475.
In Kiwanis, the Third Circuit held that the local Kiwanis club did not meet this test of unselectivity because, among other things, club membership was limited to 28 members and less than 20 individuals had been admitted to the club in the past decade. In addition, any new member had to be sponsored by a current member and formally voted in by the club's Board of Directors. According to the court, this sponsorship requirement functioned as a "primary screening mechanism in the maintenance of the quality of membership." Id. In addition to these national membership requirements, the club established several local membership requirements, including the candidate's willingness to pray at meetings and to recite the pledge of allegiance. Under such circumstances, the court held that the Kiwanis club did not pass the test of "unselectivity, unrestrictedness, and open invitation." Id. at 476.
The ACFA does meet this standard. It is undisputed that membership is "open to any person eighteen years of age or older, who is interested in cats . . . upon making application for membership." Bylaws at Article IV, Section 1. There are no other restrictions on membership. In fact, the ACFA By-laws provide:
Acceptance of Applicants. There shall be no requirement for the election of new members. Each applicant shall be deemed worthy of membership unless he or she shall have been expelled from membership under procedures hereinafter provided by these Bylaws.
Article IV, Section 3. See also Keuler Dep. at 46. Therefore, because the invitation to join the ACFA is open to the public at large, I find that it is a "place of public accommodation" within the meaning of the LAD.
The ACFA relies on Welsh v. Boy Scouts of America, 993 F.2d 1267 (7th Cir.), pet. for cert. filed, 126 L. Ed. 2d 567, 114 S. Ct. 602, 62 U.S.L.W. 3393 (Oct. 14, 1993), for the proposition that a private membership organization is not a "place of public accommodation." This argument is wholly without merit for several reasons. First, Welsh involved a challenge brought under Title II of the Civil Rights Act of 1964, not the LAD. Second, the Seventh Circuit's determination turned on its analysis of the statutory term "place" (of public accommodation). Specifically, the Seventh Circuit held that in enacting Title II, Congress "never intended to include membership organizations that do not maintain a close connection to a structural facility within the meaning of 'place of public accommodation.'" Id. at 1269. However, as discussed above, this reasoning as applied to the LAD has been explicitly rejected by the New Jersey courts. In fact, in Kiwanis, the Third Circuit held that in light of Little League, whether an organization satisfies the spacial "place" requirement is "irrelevant to the primary consideration stressed in Little League which requires that we scrutinize not where the gathering takes place but rather whether the invitation to gather is open to the public at large." Id. at 474.
Therefore, under New Jersey law, membership organizations are clearly covered entities under the LAD. Finally, Welsh explicitly acknowledged that the New Jersey courts have interpreted the analogous New Jersey statute differently. 993 F.2d at 1271-72 (refusing to adopt Little League interpretation of "place" (of accommodation)).
The ACFA also argues that it falls within the "exception" to the statute providing that "nothing herein contained shall be construed to include or to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private." N.J.S.A. 10:5-5(1). However, this provision merely "represents the other side of the 'public accommodation' coin." Kiwanis, 806 F.2d at 476.
Thus, if an organization "is not a 'place of public accommodation' because of its selective membership practices, it must be private as that term is used in the statute." Id. In contrast, if an organization qualifies as a "place of public accommodation" under the standards enunciated in Little League and Kiwanis -- as does the ACFA -- then the "private" club exception of N.J.S.A. 10:5-5(1) does not apply. See also United States v. Trustees of Fraternal Order of Eagles, 472 F. Supp. 1174, 1175 (E.D. Wis. 1979) ("the most important factor in determining whether a club is in fact private is the process which the club actually uses in selecting its members").
Moreover, the fact that the ACFA considers itself to be a "private" organization is not dispositive of the issue. See Clover Hill Swimming Club, Inc. v. Goldsboro, 47 N.J. 25, 219 A.2d 161 (1966). In Clover, the New Jersey Supreme Court held that a swimming club, which in its sign and promotional literature consistently referred to itself as a "private" facility, was not "distinctly private" within the meaning of the LAD because it "sought to attract new members from the public at large" and because it "does not owe its existence to the associational preferences of its members but to the coincidence of their interest in the facilities offered by the owners." Id. at 33, 34.
The ACFA argues that the standards governing designation of a member as an allbreed judge are extremely selective. However, this entire argument is irrelevant, because as discussed above, the relevant focus is on the nature of the organization's membership practices. The fact that an organization is selective with respect to the privileges and benefits it accords to members does not exempt that organization from the proscriptions of the LAD if it is otherwise a "public place of accommodation." In United States Jaycees v. McClure, 305 N.W.2d 764 (Minn. 1981), cited with approval by the Third Circuit in Kiwanis, the Minnesota Supreme Court, in construing a public accommodation statute similar to LAD, held that the Jaycees were a "public place of accommodation" stating that the Jaycees were:
unselective in those to whom it sells its memberships; selectiveness occurs only in the privileges and benefits it accords to those holding one kind of membership rather than another.