New York State Club Association Inc. v. City of New York – Oral Argument – February 23, 1988

Media for New York State Club Association Inc. v. City of New York

Audio Transcription for Opinion Announcement – June 20, 1988 in New York State Club Association Inc. v. City of New York

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William H. Rehnquist:

We will hear argument first this morning in Number 86-1836, New York State Club Association versus the City of New York.

Mr. Mansfield, you may proceed whenever you area ready.

Alan Mansfield:

Mr. Chief Justice, and may it please the Court, this case presents a classic conflict between competing American values, the fundamental right of our citizens to associate, elect who their friends will be in places which are private social settings and the state’s interest in providing equal opportunities for people in places which are public.

To foster equal opportunity, places like New York City and other jurisdictions throughout the country have enacted public accommodations laws.

These laws in places again which are truly public prohibit discrimination, but to secure the personal liberties which are basic to our society and which permit social clubs to exist in the first instance, New York City’s law, like many other jurisdictions, exempts private clubs from the definition of place of public accommodation.

This exemption strikes a fair balance between the competing values to associate on one hand and the state’s interest in antidiscrimination principles on the other.

Local Law 63 is an amendment to New York City’s public accommodations law, and specifically to the distinctly private club exemption.

Its irrebuttable presumption based on a crazy guilt three-prong test impermissibly precludes a club from demonstrating relevant factors.

Sandra Day O’Connor:

Mr. Mansfield, it isn’t clear to me from the opinion below of the New York Court of Appeals that that court necessarily viewed the three factors as an irrebuttable presumption.

I notice that is what you are saying this morning and in your brief.

Certainly your opponent in the case says that it doesn’t create an irrebuttable presumption but rather a presumption that then has the effect of, I guess, shifting the burden of proof but leaving it open to the clubs to nonetheless show by any means that they are indeed private.

Alan Mansfield:

The Corporation Counsel’s brief in fact takes that position now for the first time.

Looking at the Court of Appeals decision itself, however, I think, makes quite clear that for purposes of a club which is claiming a right to private association, that club is bound by an irrebuttable presumption.

The context in which the Court of Appeals was writing was NYSCA’s challenge under the state constitutional inconsistency provision that the three prongs of Local Law 63 were inconsistent with the general law of the State of New York.

New York State has a statute which is a statewide provision which is also a public accommodation statute, and it has a distinctly private exemption, just like the old New York City law did.

The Court of Appeals in the Power Squardons case had construed that exemption.

NYSCA argued below that the three prongs of Local Law 63, again under the state constitution, were inconsistent with the five prongs of Power Squadrons.

The Court of Appeals rejected that argument on the ground that the five prongs of Power Squadrons were permissive factors, and since they were permissive, then another jurisdiction would be free to pass consistent provisions, and the Court of Appeals held that the three prongs were consistent.

The critical point here, though, is that or purposes of determining that a club is not distinctly private, a trier of fact sitting in the City Human Rights Commission is entitled to look at as many factors as he or she wishes.

To that extent indeed it is permissive, but once a club meets the three prongs, it is deemed to be not entitled to the distinctly private exemption.

The purpose–

Sandra Day O’Connor:

In the sense of creating a presumption so that it shifts the burden of proof to the club?

Alan Mansfield:

–It becomes irrebuttable.

It is not a strong presumption.

Sandra Day O’Connor:

But that is exactly what your opponent says is not the effect of the New York Court of Appeals opinion.

What are we supposed to do with that?

Do you want us to reinterpret state law, local law?

Alan Mansfield:

I don’t think that would be necessary.

I think the Court of Appeals decision is quite clear on its face.

The Court of Appeals says at Page 11A of the record that once a club meets the three factors it is deemed to be large and not selective enough to be entitled to the freedom of association.

Alan Mansfield:

Indeed, this is the position that Corporation Counsel has argued throughout both in this litigation and in the enforcement proceedings which are pending in the State of New York.

In the reply brief I have cited a memorandum of law submitted by Corporation Counsel after the Court of Appeals decision came down in which it takes the very same position that seems to us to be clear from the face of the record.

There is not an ambiguity here in state law determination.

Byron R. White:

What about the ordinance itself?

Does it provide for… does it permit a club to claim that even though it satisfies the criteria, that its constitutional rights are being violated?

Alan Mansfield:

It does not, and to the contrary the language of the statute could not be more clear.

The statute says that an institution, club, or place of accommodation shall not be considered in its nature distinctly private if it meets the prongs.

Byron R. White:

So the effect of the ordinance is that case by case determination of constitutionality in application is precluded.

Alan Mansfield:

It is precluded.

Once a club meets the three prongs it is automatically in violation of city law if it discriminates in any fashion.

The purpose again of the private club exemption was to strike that fair balance between competing American values.

Local Law 63 is in fact an irrebuttable presumption based on these three factors.

William H. Rehnquist:

When you say irrebuttable presumption you really mean that the law means what it says, I guess, that when these three factors are present the law shall be such and such.

Alan Mansfield:

That is exactly correct.

William H. Rehnquist:

And there are an awful lot of laws like that.

Alan Mansfield:

That’s correct, Your Honor.

I understand that many statutes necessarily draw lines of all kinds, and some will be impacted by it, some won’t.

The point here, however, is that the analytical framework for a club’s exercise of its freedom of association has set forth in two of the decisions of this Court, first in Roberts and later in Rotary, just last term, this Court without dissent set forth the proper analytical framework, and that framework said that a club should be able to demonstrate and a trier of fact should carefully assess all of the objective characteristics which would be relevant to determine whether a club is or is not private.

The Court went on in both of those decisions to identify the kinds of factors which should be considered.

Those factors included the purpose of a club.

William H. Rehnquist:

But neither of those opinions purported to be drafting manuals for statutes.

Alan Mansfield:

I agree, Your Honor.

However, I think that both of those opinions were setting forth a constitutional framework.

Both were considering the competing values again of the freedom to associate, and when that freedom to associate can attach, and the fact that a private club may under some circumstances be entitled to exercise that freedom to associate, that members of that club have the right to choose who their friends will be free of government regulation, free of government scrutiny of the membership policies and operations of the club.

That framework is decidedly different from the tack that Local Law 63 takes, whereas the Roberts and Rotary rationale are solicitous of claims to the freedom of association–

Byron R. White:

How did this case get started?

Alan Mansfield:

–This case was started in the State Court in New York City.

It was a–

Byron R. White:

By your client?

Alan Mansfield:

–By my client, the New York State Club Association.

Byron R. White:

And you mounted a facial attack, didn’t you?

Alan Mansfield:

It was a pre-enforcement facial attack.

Byron R. White:

And so your claim was that the law could not be constitutionally applied in any way?

Alan Mansfield:

That it could not be constitutionally applied in any case, and that it was overbroad on its face, yes.

Byron R. White:

And you think overbreadth applies in this context?

Alan Mansfield:

I think overbreadth does apply in this context because there are–

Byron R. White:

Well, this is sort of a commercial regulation, isn’t it?

Alan Mansfield:

–The provision may have intended to be a commercial regulation.

It may have been the legislative intent to–

Byron R. White:

Well, let’s assume for a moment that the overbreadth analysis does not apply.

Would you still win?

Alan Mansfield:

–I think we would win, Your Honor.

Byron R. White:

Because in any single case… there is no case you can imagine where this law could be constitutionally applied?

Alan Mansfield:

That’s correct, because the law employs a fundamentally incorrect analysis of the freedom to associate, whereas the Court in Roberts and Rotary thought that factors again such as selectivity in beginning and maintenance of a relationship, the exclusion of others from critical aspects of the relationship, that those should be the factors which would determine whether a club’s members can decide whether they can have their own friends free from government intrusion, but that is a constitutional standard.

The irrebuttable presumption, the three prongs take a decidedly different tack.

Anthony M. Kennedy:

Under the JC and Roberts case is size ever relevant?

Alan Mansfield:

Size is relevant, and in fact, Justice–

Anthony M. Kennedy:

Do you think the fact that regular meals are served is relevant?

Ever?

Alan Mansfield:

–It wasn’t mentioned, although we believe it is a relevant factor, perhaps not the most probative.

Anthony M. Kennedy:

Is a relevant factor?

Alan Mansfield:

A relevant factor.

Anthony M. Kennedy:

Is receipt of payments on behalf of nonmembers relevant?

Alan Mansfield:

It, too, would be a relevant factor.

Anthony M. Kennedy:

Can you imagine no case in which those three relevant factors would combine to result in a non-private status for a club?

Alan Mansfield:

Well, it is conceivable that there is a class of cases in which a club, for example, like the Rotaries or the JCs under any test, even if one employs a fundamentally wrong premise, would have the same result, that doesn’t make the test any more constitutional, much like in the Court’s decisions in Munson and Schaumburg.

In Munson and Schaumburg, it is conceivable there would have been those out there trying to solicit funds who were engaged in fraudulent charitable activities, so the overbroad law as applied to that class of individuals would have the same result as if the law were more narrowly fashioned.

It is the same here.

There are–

Antonin Scalia:

We are assuming no overbreadth here.

Antonin Scalia:

I mean, that’s… I thought this whole discussion was on the assumption of no overbreadth principle applicable.

Alan Mansfield:

–The Court has used overbreadth in two distinct contexts, as Justice Brockman pointed out in the Munson case, both that the law is unconstitutional with respect to the facts that are set forth by the plaintiff and also in the classic sense of overbreadth where even if the law properly regulates the conduct of plaintiff, nevertheless there are others whose rights will be chilled.

And indeed we make the challenge to this law on both grounds, but with respect to the class of clubs represented by the New York State Club Association, this law, because again it employs, just like in Schaumburg and Munson, a fundamentally misguided test, it would be unconstitutional in every application.

William H. Rehnquist:

If overbreadth doesn’t apply here, then, as Justice Kennedy points out, under any conceivable circumstances a club in which these three factors are present would not be subject to constitutional protection.

A facial attack ought to fail.

Alan Mansfield:

Again, it is an irrebuttable presumption.

It prohibits any club, and the clubs represented by the New York State Club Association, to show that there are other factors.

William H. Rehnquist:

I don’t think your irrebuttable presumption argument really does you much good.

That just may be my own opinion.

It is a law setting down a standard and saying if something meets this standard it is subject to these rules.

Like if you drive 35 miles an hour, you are subject to a reckless driving charge.

If you drive 75 miles an hour, you are not allowed to adduce evidence that you really were driving carefully.

Now, there is nothing wrong with a law like that, is there?

Alan Mansfield:

What is wrong with this particular law is not that it draws lines, but that the three prongs that it has chosen to look at are demonstrably different from the constitutional analysis the Court set forth in Roberts and Rotary.

The very factors which a club would want to show to demonstrate that it should be entitled to practice the freedom of association, those very factors are precluded by Local Law 63.

Once a club meets the three prongs, it cannot show a trier of fact for purposes of winning the exemption that it would otherwise have been… have sought refuge under Roberts and Rotary, that the kind of analysis that the Court engaged in both looking at the Rotaries–

Byron R. White:

Can you imagine any club that… where any such a claim would be… would just always fail?

Alan Mansfield:

–Not a club which would otherwise be protected by Roberts and Rotary.

Byron R. White:

Well, I know, but you are saying that every club that you can imagine would have… this law would, if it were applied, would be unconstitutional?

Alan Mansfield:

I am saying that the law is premised on a fundamentally misguided and wrong test, and just as Your Honor’s decision in Schaumburg pointed out, the 75 percent rule was a fundamentally misguided test.

The fact that the village of Schaumburg sought to eliminate fraud was a bona fide–

Byron R. White:

Well, I know, but let’s suppose that we agreed with you they applied the wrong test, and we said, well, the right test is so and so but this law is perfectly constitutional under the right test.

You wouldn’t affirm… you wouldn’t reverse the judgment below, you would affirm it.

Alan Mansfield:

–The judgment below should be reversed because the test is fundamentally in error, and in error with respect to the constitutional analysis that is required by Roberts and Rotary.

The mere fact that it is–

Byron R. White:

Well, suppose we thought that applying the right test, if this… if the test below was wrong, if we applied the right test, suppose we thought the ordinance passed constitutional muster?

We would affirm.

Alan Mansfield:

–If in fact the test was a right test, if in fact the three prongs met all of the constitutional concerns set forth in Roberts and Rotary, then in fact the Court would affirm on that part of the argument.

With respect to the overbreadth part of the argument, on the other hand, which clearly would apply here because the other wing of the freedom to associate is the freedom for expressive association, and of course the right of clubs to get together, of political organizations to get together which are clearly protected under the expressive association cases, was chilled by this law.

If it has 400 members, if it has regular food service, if it has regular receipt of income under the third prong of the test then it would be forced to take in a member it may not wish to have, which could very well, just the admission of that member, interfere with the definition and purpose of the club.

John Paul Stevens:

Mr. Mansfield, can I ask you a question about the group that your client represents?

In the NAACP case on which you rely heavily, Justice Harlan points out the importance of the freedom to engage in association for the advancement of beliefs and ideas, which seems to me may be a concept somewhat different from merely a social organization that is purely social.

Does the record tell us how many of the members of the association are engaged in the advancement of some kind of ideas of a political type as opposed to merely a social organization?

Alan Mansfield:

The clubs represented by NYSCA are primarily those which are social clubs, clubs which are organized four purposes of social intercourse and recreational pursuits.

John Paul Stevens:

Do you think the same standard applies to that kind of a first amendment claim as one… as the standard applies in the NAACP context?

Alan Mansfield:

I think it is, Your Honor.

John Paul Stevens:

You think there is the same… there is an equal importance in protecting that kind of association?

Alan Mansfield:

I think the Court has in the past talked about the freedom of association protecting not only the direct advancement of beliefs but in Coats versus City of Cincinnati the Court mentioned that social expression was equally protected.

I don’t think the Court should engaged in a sliding scale of protection with respect to that kind of freedom.

Thurgood Marshall:

Isn’t it a difference where some people were killed, which is true in the Alabama one?

Alan Mansfield:

Well, I understand that in–

Thurgood Marshall:

Isn’t there a little difference?

Alan Mansfield:

–I think that–

Thurgood Marshall:

Isn’t there a little difference?

Alan Mansfield:

–I think that the facts are very much different, but I think the principle is very much the same, and that the freedom of association is in fact a fundamentally protected right.

Antonin Scalia:

Mr. Mansfield, you have to acknowledge at least this difference, that where what is being defended is association on the basis of furthering ideas, it doesn’t matter how large the organization is, it could be the American Civil Liberties Union or any nationwide organization with thousands of members, whereas we have made it clear that the associational right that we have referred to where such political or ideological purposes do not exist only applies to intimate association.

We never talk about intimate association as far as political belief is concerned, do we?

Alan Mansfield:

Well, that is correct, Your Honor.

There are two prongs of the freedom of association.

In Roberts and in Rotary, both of those clubs were analyzed under both prongs, the first, the right to private association, a right which derives out of the liberty clause of the Constitution; the second was a right of expressive association, which finds its roots more directly in First Amendment cases.

These are two aspects of the freedom to associate.

Antonin Scalia:

And we give more protection to one than to the other.

Alan Mansfield:

Once an association, an organization a couple is protected by the right of private association, indeed, I believe that is given more protection than expressive association.

The state would not be able to enter into intimate relationships which are protected by the liberty clause, and I think that the analysis of Roberts and Rotary was to determine whether a social club can be protected under that same line of cases, the cases that began with family rights involved.

John Paul Stevens:

Yes, but would you not agree that the size factor is quite different in the political context than in the intimate association context?

You couldn’t claim the same right of intimate association for 100,000 people that you could for a political group.

Alan Mansfield:

Well, I think that’s correct, and I think certainly as Justice Brennan pointed out in Roberts, relative smallness is one of the factors that should be considered.

John Paul Stevens:

And your position is, 400 is, as a matter of constitutional law, it has got to be bigger than that.

At what line would you say that the number would be such that there would no longer be the right of intimate association?

Alan Mansfield:

I don’t have a guideline to offer the Court.

John Paul Stevens:

Your position is, there can be no flat guideline?

Alan Mansfield:

I think there shouldn’t be, and I think that’s what Justice Brennan meant when he said relative smallness, not just smallness.

Indeed, the JC’s local that was before the Court in the Roberts case had… were in itself sufficient to defeat any constitutional right, the Court would not have had to go forward in the decision.

It could simply have thrown the case out on the ground of 400.

Instead, the Court focused on relative smallness.

When you look at the 400 prong of Local Law 63, we can look at such features, for example, as continuity of the relationship.

Is the core of the 400 the same group of people who have been together for a long period of time?

Who uses the club on a regular basis?

Is a small percentage of the total membership really the percentage of people who use the club day in and day out?

These are at least relevant factors that a trier of fact should be able to take into consideration in determining whether the club meets the relative smallness analysis of Rotary.

John Paul Stevens:

May I ask you if you would make the same argument about the New York statute if one of the prongs instead of a substantial amount of business activity said, and 100 percent of the members regularly, that is, at least once a week or once a month, transact some kind of business in this place.

Alan Mansfield:

I think that would be a much closer case, and certainly a trier–

John Paul Stevens:

Do you think that would also be invalid, though, do you?

Alan Mansfield:

–If it were, again, an irrebuttable presumption.

John Paul Stevens:

Yes.

Alan Mansfield:

If it made it so that in determination of whether you have constitutional rights or not, was not three prongs and you are out.

As long as you would be able to demonstrate that notwithstanding the commercial aspect there are reasons that you might still be private.

Local Law 63 is a good example.

The third–

John Paul Stevens:

Well, maybe the reason is that businessmen like to do business with men.

Is that a sufficient reason?

Alan Mansfield:

–That may not be, but the third prong of Local Law 63 nowhere on its face requires that the business activity be substantial.

It doesn’t even require that it be significant.

Under the regulations which were before the Court of Appeals, indeed, it can be trivial.

The fact that there is trivial business that is conducted at a club should certainly be a relevant feature.

The third prong, while it does have a business component, as Justice Greenfield put in his decision denying our motion for preliminary injunction, doesn’t even make sense with respect to furthering the purposes of the law.

Thurgood Marshall:

Wouldn’t, on trivial, if you turned it on whether it was trivial or not, the business of the club presented to this Court, wouldn’t you get nine different points on the word “trivial” as applied to a club?

Alan Mansfield:

You might very well.

Thurgood Marshall:

So why bother with it?

Alan Mansfield:

Because I believe, Your Honor, that the analysis in Roberts and Rotary at bottom said that a club should be able to at least try to prove before a trier of fact every probative factor.

Alan Mansfield:

If the club is–

Thurgood Marshall:

As to whether it is 400 or 402.

Alan Mansfield:

–And if the 400 people are the same 400 people–

Thurgood Marshall:

Or 401.

Alan Mansfield:

–or others, and with respect to the third prong–

Thurgood Marshall:

Do you agree that the experience in New York of enforcing its other civil rights law is far from perfect today?

Alan Mansfield:

–I would agree with that, Your Honor.

Thurgood Marshall:

So this was an effort to straighten it out.

Alan Mansfield:

It was an effort.

Thurgood Marshall:

And you want to torpedo it.

Alan Mansfield:

We don’t challenge the legislative purpose.

At stake here is not the question of whether a legislature can pass a law in which it seeks to provide equal opportunities in places which are truly public.

What is wrong about this law is the means that was chosen.

That is what violates the Constitution.

The fact that it can be trivial income to a club, the fact that income could have nothing to do whatsoever with the business of the members, thus if it is a small club, and in order to make its real estate tax payments without raising dues beyond the limits of the club members, it rents its facilities out on a weekly basis, rents it out to a local business to use for cocktail parties, none of the club members attend that cocktail party, and none of the people who are at the cocktail party have any right to any aspect of the club.

At least that factor should be relevant to determining whether these clubs are marketplaces.

The objective of the legislature is not drawn into question in this litigation.

If indeed the Local Law 63 was addressed to pointing out just marketplaces, what the preamble says that the legislature was seeking to open up to the public, that would be one thing, but it chose Local Law 63.

Local Law 63 is fundamentally in contrast to–

Byron R. White:

Well, your Court of Appeals said it is not unreasonable to determine that a large club which received substantial business-related income from nonmembers, that the law can reach, constitutionally reach clubs like that.

Now, that is a construction of this ordinance, isn’t it?

Alan Mansfield:

–I believe it is not a construction of the ordinance.

It is simply saying that if there is substantial income and large clubs, that that would be consistent with the Roberts analysis for determining that a club is not distinctly private.

This particular ordinance has been construed by administrative regulations.

Those administrative regulations issued by the City Human Rights Commission say quite clearly that the receipt of nonmember income for as many weeks as the year that the business… the club is in operation is sufficient to meet the term “regularly”.

Therefore trivial income, if one member of a club of 450 on a weekly basis takes one client to lunch, and deducts that payment, even though the rest of the club members engaged purely in recreational or social activities, even though the $520 of 52 $10 chits are a tiny proportion of the club’s revenues, the third prong attaches.

That is the way the regulations construe it.

That was before the Court of Appeals.

Byron R. White:

Well, it just isn’t what the Court of Appeals said.

Alan Mansfield:

The Court of Appeals said that large numbers and substantial business would in fact be relevant factors under the Roberts rationale.

Alan Mansfield:

The Court of Appeals was simply dealing with the issue of permissive factors and the kinds of things that could be looked at.

Again, what the Court of Appeals was not saying was that a club that meets the three prongs could ever establish that it is entitled to the exemption.

Byron R. White:

Well, would you say that… I suppose you would say that even if the club received what you would agree is substantial income from nonmembers connected with business, you would say that this law is unconstitutional with respect to those clubs, I guess.

Alan Mansfield:

I would say that it might be.

I would say that unless that club that received the substantial–

Byron R. White:

Well, can you think of a club that the ordinance could constitutionally be applied to?

Alan Mansfield:

–I can’t because it is a fundamentally misguided test.

There is an entire class of clubs–

Byron R. White:

No matter how substantial the return from nonmembers is.

Alan Mansfield:

–If it is substantial enough, then that club would not be protected by Rotaries or Roberts in the first instance.

The class of clubs which are protected, which is protected under the Rotaries and Roberts rationale will for all purposes have their rights violated by the three prongs of Local Law 63.

It is very much the same as in Schaumburg, where there could have been a class of fraudulent solicitors, and they would be properly regulated under the law, but any charity which was properly engaged in First Amendment activity would have its rights violated by the 75 percent rule.

The law is also violative of the equal protection clause of the Constitution in that it improperly… I see my time is up.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Mansfield.

We will hear now from you, Mr. Zimroth.

Peter L. Zimroth:

May it please the Court, if I might just begin by addressing a question that Mr. Justice White addressed to Mr. Mansfield in which I think you asked whether or not this law precludes on a case by case application the constitutionality, that is, that the court or the administrative agency in New York is precluded somehow by this statute from considering whether or not the application of the statute is constitutional or not.

That in fact is what Mr. Mansfield means by irrebuttable presumption.

He means that this statute says to the state administrative agencies and the state courts, you are not allowed to look at constitutional considerations.

It is really, frankly, silly.

I mean, you don’t have to have a specific statement in the statute saying this is the statute, but by the way, if it is unconstitutional as applied to a particular case you shouldn’t apply it.

I mean, every–

Sandra Day O’Connor:

Well, Mr. Zimroth, is it open to a particular club in the City of New York faced with a challenge before the Human Rights Commission to come in and offer evidence that it believes demonstrates the business activities are not substantial even though they would technically meet the third prong of the ordinance?

Peter L. Zimroth:

–If the–

Sandra Day O’Connor:

Does the club have a right–

Peter L. Zimroth:

–Absolutely.

Sandra Day O’Connor:

–to have that evidence–

Peter L. Zimroth:

Absolutely.

Sandra Day O’Connor:

–considered?

Peter L. Zimroth:

Absolutely, in the context of the club saying that this statute is unconstitutional as applied to me, to my club.

Peter L. Zimroth:

Absolutely.

Byron R. White:

You can’t find that provision in the ordinance.

Peter L. Zimroth:

No, you can’t.

You can’t find it in the U.S. Code most places either.

Byron R. White:

Well, I know, but you can’t find it in the… as I read the Court of Appeals’ opinion, it just seems to say that when the three prongs are proved, that is the end of the ball game.

Peter L. Zimroth:

That is the end of the statutory ball game.

It is not the end of the constitutional… how could it be the end of the constitutional ball game?

If the statute is unconstitutional as applied to a particular club, the City Human Rights Commission is bound not to apply that statute to that club.

Antonin Scalia:

Of course, but Mr. Zimroth, if that is enough to prevent a facial challenge, then there can never be a facial challenge because every statute is always subject to a constitutional challenge as applied.

Peter L. Zimroth:

No, that is not correct, Your Honor.

Antonin Scalia:

It is not?

Peter L. Zimroth:

No.

The last part is correct.

Right, the last part is correct, but it does not follow that because the last part is correct, that every overbreadth challenge fails.

The overbreadth challenge is in effect saying that in most of its applications, in most of its applications this law would be unconstitutional.

Mr. Mansfield in four years of litigation has not come up with one club that it would be unconstitutional to apply it to.

Antonin Scalia:

You are switching to overbreadth… I am sorry, go ahead.

Peter L. Zimroth:

You asked a question about overbreadth.

One other point.

Even though it may not be in the words of the statute, I don’t think it needs to be in the words of the statute, I will just cite an opinion by Mr. Justice Rehnquist in the Commission against the Dayton Christian Schools.

“Even if Ohio law is such that the Commission may not consider the constitutionality of the statute under which it operates, it would seem an unusual doctrine to say that the Commission could not construe its own statutory mandate in light of the federal constitutional principles. “

John Paul Stevens:

Yes, but that is very different, because here you have construed your own statute, and if I understand your argument now, you are saying, well, maybe it is unconstitutional as to some of these clubs, but they can raise that in due course.

That is just too bad.

Peter L. Zimroth:

No, I am saying that even if the Court of Appeals said nothing on the subject, they would be open, the club would be open to make this argument.

The Court of Appeals did say something and they did construe the statute, and they construed it in, contrary to what Mr. Mansfield said, specifically in light of his argument in the Court of Appeals that this was an irrebuttable presumption.

John Paul Stevens:

Let me interrupt you again if I may, please.

Peter L. Zimroth:

Sure.

John Paul Stevens:

Do you agree that if these three prongs of this test are met, I don’t care whether it is irrebuttable or not, assume that those are met, could they be met and could a club still have a constitutional right to deny membership to a minority group?

Peter L. Zimroth:

Let me say this.

I think–

John Paul Stevens:

It is a simple question.

Peter L. Zimroth:

–Yes, I am going to answer.

I think that it is… I can’t think of such a club, but I am not going to stand here and say that in the fertile imagination of man or woman, that you can’t think of a hypothetical.

For example, you might have an advocacy group that meets all these criteria.

I haven’t heard of any such advocacy group in New York City.

I mean, we are talking about clubs like the New York Athletic Club.

John Paul Stevens:

Well, I can give you a hypothetical.

Supposing the Society of Divorced Men, who think they are discriminated against in the administration of the domestic relations laws, formed a group of 450 and they regularly met, they had some people who paid their bills, they did some business, and all the rest.

Could the law be applied to them?

And they thought it would further their purpose to exclude women from their organization.

Peter L. Zimroth:

I think that it would be a hard case, but even if I would assume, or even if you would assume that in that particular application it would be unconstitutional because of the particular advocacy purpose, what does that have to do with this statute?

This statute purports to regulate after a very lengthy hearing what really is going on in New York City.

No one brought to the attention of either a court or of a–

John Paul Stevens:

What is such a club supposed to do in its day to day operations if they see this statute, they say we understand the city is going to prosecute everybody that violates it, we are in violation.

Should it change?

Does it have a duty to change?

Peter L. Zimroth:

–No, it does not have a duty to change.

The burden is on the City Human Rights Commission to bring a proceeding against that club.

It doesn’t have to do anything until that entire proceeding is adjudicated both in the Human Rights Commission and in the court.

And if at the end of that process, in which that club will say, even though hypothetically my club meets the standards because we are an advocacy group and we are small enough and all of the other standards that we are constitutionally protected, presumably either the Human Rights Commission or the state courts or ultimately this Court will say it is right or it is wrong.

It is only after that that that club would have to change its practices.

William H. Rehnquist:

What you are really saying is that this statute can be applied certainly to some clubs that come within its definition constitutionally if perhaps it can’t some other clubs, and we will just have to find out as we go along.

Peter L. Zimroth:

That is precisely right.

I would only amend that one way.

That is, I would say that virtually every club that you can imagine in the City of New York that would come within this statute would be constitutional application.

I can’t think of a real club in which it wouldn’t.

I mean, you can think of hypothetical clubs, but the City Council wasn’t talking about hypothetical clubs.

It was talking about real clubs.

I mean, there are–

William H. Rehnquist:

That certainly isn’t the way the Court of Appeals read the statute.

William H. Rehnquist:

Page 11A, right after the citation to JCs, Part 2 of their opinion, they say, in keeping with these objective and permissive factors, the law in affect deems a club that is large and where much of the activity central to the maintenance of the association involves the participation of strangers to that relationship to have lost any claimed protection of intimate association.

They don’t give you the impression that it is going to be a case by case treatment under… once those three factors are met.

Peter L. Zimroth:

–Well, I mean, they are talking about permissive factors there, and also on the previous page, I believe Page 9A, it says Local Law 63 does not prohibit the city factfinder from considering the test of selectivity or indeed any of the Power Squadron factors.

I would have to concede that the opinion is not crystal clear about that, but this was after all a facial attack, and what the Court had before it is what you have before you, a statute that has criteria that is directly related to what this Court had previously said in the JC case and in the Rotary case.

It looked at the City of New York.

It had very extensive hearings about the nature of these clubs that had very, very substantial business operations.

The president of the University Club estimated that more than half of the income from that fund came from nonmembers.

We are talking about clubs that have millions and millions of dollars of income from nonmembers, clubs that actually advertise to its members saying, please use this club more for business purposes.

Byron R. White:

Well, Mr. Zimroth, even if your agency that enforces this law would never permit any claimed defense of unconstitutionality as applied, I suppose that you wouldn’t necessarily lose this case.

You could still say that, well, there are certainly plenty of clubs to which this law could be constitutionally applied and any claim, any unconstitutional defense would be frivolous.

Peter L. Zimroth:

I think that’s correct.

That is what I am trying to say, that is, if you look at the real life in New York City, it is hard to think of a real club that would have a constitutional claim, that met these three standards and also had a constitutional claim.

Mr. Mansfield after four years of litigation has not mentioned one such club.

He talks about it is possible that the regulation or the statute would be applied in this way.

It is possible in that way.

If you look at what the evidence was before the City Council about the kind of clubs we are talking about, we are talking about large men’s downtown business clubs that do a substantial amount of business, but by nonmembers.

Byron R. White:

Yes, but suppose we don’t have all this trouble that you do of imagining a club that would have a good defense on a constitutional basis.

Suppose that is so, and we just disagree with you.

What about overbreadth?

Peter L. Zimroth:

Well, I agree with you.

That is that just because there exists… the overbreadth doctrine, it seems to me, said that–

Byron R. White:

Well, because if there are some clubs that this law couldn’t be constitutionally applied to, a substantial number of them, and if overbreadth applies, I suppose–

Peter L. Zimroth:

–Well, that’s the point.

This would be–

Byron R. White:

–this whole statute, ordinance is unconstitutional on its face.

Peter L. Zimroth:

–It has to be a substantial number of them.

That is, in order for the overbreadth doctrine–

Byron R. White:

Well, suppose we think there are a substantial number.

Do you think overbreadth applies in this case?

Peter L. Zimroth:

–I don’t because–

Byron R. White:

Why not?

Peter L. Zimroth:

–Because–

Byron R. White:

Why not?

Peter L. Zimroth:

–there is not a substantial number of them.

Because the three prongs are directly responsive to the constitutional concerns that this Court laid down in Rotary and JCs.

You know–

Byron R. White:

But doesn’t this ordinance, at the bottom line it talks about business purposes.

Peter L. Zimroth:

–That is, the money has to be received in furtherance of a business purpose.

That is why it is very hard to imagine what kind of club that would be that would–

John Paul Stevens:

Mr. Zimroth, you referred to the University Club, I guess it was, that over half of its members are engaged in business.

Is that in the record?

Peter L. Zimroth:

–It is in the record before the City Council.

John Paul Stevens:

Well, what is in the record in this lawsuit?

Is there anything about any of these clubs?

Peter L. Zimroth:

Virtually nothing.

John Paul Stevens:

Why not?

Peter L. Zimroth:

They are the plaintiffs.

I mean, they refuse to put in the record anything about these 125 clubs.

The reason is, I think, because if you actually look at the club, you are going to see that you are talking about big businessmen’s clubs, not just some sort of hypothetical–

John Paul Stevens:

Do we even have a list of the members of this organization?

Peter L. Zimroth:

–There is no list in the case.

That is correct.

John Paul Stevens:

Do we know how many of them are in New York City?

Peter L. Zimroth:

Excuse me?

John Paul Stevens:

Do we know how many of the 125 are–

Peter L. Zimroth:

No, and you don’t know how many actually fall within the statute.

You don’t know how many… you don’t know the selection procedures for each one.

You don’t know whether or not any of them have an expressive purpose.

We asked for this information in interrogatories.

They just refused to put it in.

John Paul Stevens:

–Yes.

Well, you certainly could have gotten that information.

Peter L. Zimroth:

It wasn’t our burden.

John Paul Stevens:

Well, if you asked for it you sort of assumed a little burden.

Peter L. Zimroth:

No, we asked for it to try to prove that–

John Paul Stevens:

Well, if you didn’t get answers you didn’t try very hard.

Peter L. Zimroth:

–Okay, we didn’t try very hard.

0 [Generallaughter.]

Antonin Scalia:

Mr. Zimroth, could I ask–

Peter L. Zimroth:

But they are the plaintiffs in this case and it seems to me if they are going to show substantial overbreadth it is their burden to show that there are real clubs out there that could be hurt and they haven’t.

Antonin Scalia:

–Mr. Zimroth, if there is a private right of association in clubs it is not very explicitly set forth in the Constitution anyway.

One of the protections that is quite explicit is, whatever laws you pass, the real protection is, it has to apply to everybody.

Now, this law was passed with an exclusion of such groups as the Elks, the Moose, the American Legion, and I gather there was some testimony that that exclusion was somewhat politically necessary.

Peter L. Zimroth:

There was no such… there was a claim made by the plaintiffs in this case.

Antonin Scalia:

What is the basis for that exclusion?

Why is that a rational exclusion?

I mean, if this is a good law it ought to apply to everybody.

Peter L. Zimroth:

We had basically a ten-year history of legislative findings, began in 1973, with the City Human Rights Commission hearings.

There was a report in ’75.

There were hearings in ’80.

There were more hearings in ’83.

The law passed in ’84.

What the legislature was looking at is whether or not there were clubs in the City of New York that really served a business function and the exclusion of women and minorities really had a very negative impact on the economic lives of those excluded.

There wasn’t any evidence for that entire ten-year period that that same function was relevant when you deal with organizations like… you mentioned some; I will mention some others… The Supreme Council of the Mystic Order of the Veiled Prophets of the Enchanged Realm, or a local camp of the Modern Woodsmen of America.

Antonin Scalia:

Let’s take a criminal statute.

Suppose you have legislative hearings similar to the ones you had here, and the City Council is considering an anti-bribery statute, and its hearings show that by and large people who make more than $100,000 don’t take bribes.

They don’t really need it.

It is not a real problem.

So you pass a bribery law that says it shall be unlawful to take a bribe unless you make more than $100,000 a year because there is really no public need for a law.

Now, do you think that satisfies the equal protection clause?

Peter L. Zimroth:

Well, I am not sure that the same standards would apply if you are talking about depriving people of liberty, where you are talking about a fundamental right.

I am just… I mean, I don’t know the answer but I do see a serious distinction here.

Antonin Scalia:

It seems to me if there is no problem for Elks or the Mystic Order or what-not, then they have nothing to worry about.

If they are not covered by the statute they are not covered by it.

What is the rational basis for simply saying from the start this great and good statute is not going to apply to these groups?

Peter L. Zimroth:

The rational basis is that… it seems to me it is appropriate for the legislature after it goes to a hearing to legislate about what the problem is.

You know, there are other… I mean, you are talking also about religious corporations that were excluded as well.

You know, one might at least rationally think that to get into the area of religious organizations, maybe even fraternal organizations that are explicitly by statute supposed to be entirely for the benefit of the people, not for outsiders, that you might think that that was getting closer to constitutional concerns.

Why do you want to force the City of New York to legislate about those possibly more difficult areas when there is no evidence that they presented the same problem?

Antonin Scalia:

To make sure the legislators are not legislating against my club but not against their own clubs, which is the whole purpose of the equal protection clause.

Peter L. Zimroth:

Well, I don’t know that there is any evidence of that.

There is one other point I wanted to say about the Elks and so forth.

We are talking about local legislation.

I have no idea what function the Elks or the Moose or these various organizations may play in other cities, in other settings, in rural America, and so forth.

The point is that in the City of New York there just was no evidence that there was a problem like this, and that’s the answer.

Antonin Scalia:

They don’t take bribes.

0 [Generallaughter.]

Peter L. Zimroth:

We are not putting them in jail either.

Anthony M. Kennedy:

Counsel, could this statute have excluded a group that discusses literary works?

Peter L. Zimroth:

Could… excuse me?

Anthony M. Kennedy:

Could this statute have excluded a group that discusses literary works?

A drama club.

Constitutionally.

You can have more than 400 members but you are exempt if you discuss literary works.

Peter L. Zimroth:

I don’t know the answer to that.

Anthony M. Kennedy:

Well, why is the American Legion exempt?

Peter L. Zimroth:

I said the reason the American Legion is exempt is that in the City of New York there was no evidence that came forth from the City Council that presented the same kind of problem.

Maybe it is a similar problem–

Sandra Day O’Connor:

Would you speak into the microphone, please, counsel?

Peter L. Zimroth:

–Maybe it is a similar problem somewhere else in the country.

Peter L. Zimroth:

It was not in the City of New York.

Anthony M. Kennedy:

We have held that labor picketing cannot be exempted.

It is a violation of the equal protection clause.

The Mosley case.

Peter L. Zimroth:

Yes.

Anthony M. Kennedy:

Speech concerns are implicated in this statute, are they not?

Peter L. Zimroth:

Only if you find that the clubs that are included have a First Amendment right which really begs the question.

In other words, if the clubs that are included have a First Amendment right, you never have to reach the equal protection argument, and if they don’t, then the only thing that the cases say that you are to look to is the rational basis test, and I think it is a rational basis that the City Council simply had ten years of history behind it and it was no problem in this area.

Anthony M. Kennedy:

No heightened scrutiny applies when you are using speech–

Peter L. Zimroth:

I am sorry, I am having–

Anthony M. Kennedy:

–No heightened scrutiny applies when you are using speech classifications?

Peter L. Zimroth:

–Well, there are no speech classifications in this statute.

Anthony M. Kennedy:

There are no First Amendment… are there First Amendment implications in this statute?

Peter L. Zimroth:

Only if you find that the clubs that are included in this statute have a First Amendment right.

Anthony M. Kennedy:

Is there a First Amendment right to associate?

Peter L. Zimroth:

In some circumstances, either if the association is intimate or if it has a predominantly expressive purpose.

Anthony M. Kennedy:

Well, the city itself found that it was balancing associational rights versus other compelling needs did it not?

Peter L. Zimroth:

That is why it picked the standard of 400 members.

That is a number not incidentally which this Court characterized as large in the Rotary case.

That was the language of this Court.

There was a local club in Rotary which had, I think, 400 members, and it characterized it as large.

And that is why it had a standard that not only did it have to be large but it had to accept on a regular basis fees or other money on or behalf of nonmembers in furtherance of a business purpose, not simply money for nonmembers, nonmembers in furtherance of a business purpose.

And when you add all that together, I think it is pretty hard to say that these clubs have, at least as far as right of intimate expression, I mean, at last count the New York Athletic Club had 10,003 members.

I mean, can you imagine someone getting up in here and saying, here are 10,002 of my most intimate friends?

It is just not a credible kind of argument.

So–

Sandra Day O’Connor:

Is there a First Amendment right to discuss business, do you suppose?

Peter L. Zimroth:

–If there is it is commercial seed and it is much lesser protected.

We are not prohibiting people from discussing business here.

I mean, that is one thing that has to be said about this statute.

Peter L. Zimroth:

This statute doesn’t prohibit small groups of people or even large groups of people from getting together and excluding whomever they want.

It says, however, that you can’t do that under the rationale that this club is an extension of your living room and in fact have it be an extension of your business.

Anthony M. Kennedy:

Unless you are a member of the American Legion or the Elks.

Peter L. Zimroth:

I don’t know.

Antonin Scalia:

That’s what the statute says, counsel.

Peter L. Zimroth:

There is no evidence… there is no evidence in the record that that kind of thing happens in those kinds of clubs in the City of New York, the point being that these clubs can simply, they can get out of this regulation altogether.

They just have to stop taking money on behalf of nonmembers in furtherance of business.

Sandra Day O’Connor:

May I ask about that prong a little bit so that I better understand what the ordinance means?

If a club member brings a client, for example, to the club and buys a drink for the client once a week for 52 weeks, does that make the entire club a place of public accommodation even if the member bringing him is not reimbursed, but he is paying for the drink for the client?

Peter L. Zimroth:

Theoretically but not practically.

Sandra Day O’Connor:

The ordinance would make that–

Peter L. Zimroth:

No, not the ordinance, the regulation, which has not been applied or tested.

The ordinance simply–

Sandra Day O’Connor:

–The ordinance as interpreted by the regulation would make that club then for all members a place of public accommodation regardless of reimbursement as I understand it.

Peter L. Zimroth:

–I’m sorry.

Regardless of reimbursement?

Sandra Day O’Connor:

Yes.

Peter L. Zimroth:

No, I’m sorry, then maybe you can–

Sandra Day O’Connor:

If the club member buys the food or beverage for the guest who happens to be a client.

Peter L. Zimroth:

–I don’t think regardless of reimbursement.

I suppose it is possible to interpret on behalf of.

Sandra Day O’Connor:

It seems where it said, yes, on behalf of, indirectly on behalf of, and that is what the regulation looked like.

Peter L. Zimroth:

It is possible to interpret it that way.

It is inconceivable to me that if we ever had a case like that it would be interpreted that way, but it is possible.

Shall I tell you how in fact that has been interpreted?

I mean, it hasn’t been interpreted by a court yet because this is a pre-enforcement action, but we are in litigation now with the Union League Club.

The Union League Club is required as many of these clubs are required to keep tax records for functions where eight or more nonmembers attend, and so we subpoenaed those records, and they show close, like from one year, 1986, close to 100 separate functions where you are not talking about one drink, you are talking about three for 450 people.

Those are counted as one instance, not 450 instances, one instance, and you are talking about hundreds of thousands of dollars.

Sandra Day O’Connor:

Well, of course, that isn’t… we are just looking at a facial challenge and the language of the ordinance and the regulation, and it is a little hard to know what it means.

Peter L. Zimroth:

Well, which is really why I think a facial challenge is completely inappropriate in this case.

Peter L. Zimroth:

It seems to me you need to have real cases with a real record where you know what the club is, where you know exactly how the administrative agency has interpreted the regulation and how a court has applied it, and when you have that record before you then you will have a real case.

I don’t think this is a real case.

If there are no further questions, thank you.

William H. Rehnquist:

Thank you, Mr. Zimroth.

The case is submitted.