DocketNumber： 46735
Judges： Rosellini, Utter, Dolliver
Filed Date： 11/25/1981
Status： Precedential
Modified Date： 11/16/2024
(dissenting) — The majority takes exception to what it presumes to be the ideological viewpoint of plaintiff and states that a judgment in favor of plaintiff "would be apt to erode public respect for the Equal Rights Amendment and deter rather than promote the serious goals for which it was adopted." I do not agree. While I concur that plaintiff is not entitled to recover damages, I believe he is entitled to injunctive relief.
The majority, however, attempts, by a variety of devices (e.g., community property, First Northwest Industries management rationale for "ladies' night") to force the entire transaction into a cash nexus. It argues that plaintiff "suffered no damage but rather derived a benefit from the sale of tickets at reduced prices". But, of course, the cash gain or loss which may or may not have been occasioned by the discriminatory practice is not the point of the Equal Rights Amendment. I had thought this had been settled in Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975). That case involved discrimination against girls in high school interscholastic football competition and in which injunctive relief was granted under the Equal Rights Amendment. As
exclusively upon the basis that the result is dictated by the broad and mandatory language of Const, art. 31, § 1, Washington's Equal Rights Amendment (ERA). Whether the people in enacting the ERA fully contemplated and appreciated the result here reached, coupled with its prospective variations, may be questionable. Nevertheless, in sweeping language they embedded the principle of the ERA in our constitution, and it is beyond the authority of this court to modify the people's will. So be it.
Darrin, at 878 (Hamilton, J., concurring).
While the majority might feel that the plaintiff "suffered no damage but rather derived a benefit from the sale of tickets at reduced prices", it completely ignores the fact that the action is also brought for injunctive relief. So long as the focus of the case is on damages, it may well be this is not a case "when justice so requires" that leave to amend the complaint be "freely given" by the court. CR 15(a). But since the case also involves a request for injunctive relief under the Equal Rights Amendment then I believe justice requires that the amendment should have been allowed.
The Equal Rights Amendment, Const, art. 31, § 1 (amendment 61) is plain and straightforward. It reads:
Equality of rights and responsibility under the Law shall not be denied or abridged on account of sex.
In Marchioro v. Chaney, 90 Wn.2d 298, 582 P.2d 487 (1978), we held that, while under some circumstances a classification by sex is valid, there may be no discrimination as to sex. No matter how the majority struggles to get around the obvious, when men must pay more than women for admission to a sporting event, there is not only classification but discrimination as well. The Official Voters Pamphlet (1972), at page 52, contains this statement for the Equal Rights Amendment (HJR 61):
What is the Basic Principle of the Era [sic] ?
It is that both sexes be treated equally under the law. The State could not pass or enforce any law which places*355 a legal obligation, or confers a special legal privilege on one sex but not the other.
For a man to be required to pay more than a woman for a similar admission ticket to a professional basketball game both places an obligation on him and gives a special privilege to the woman. It is a discriminatory act. The only question is whether this discriminatory act is covered by the Equal Rights Amendment. I believe that it is.
Both parties agree that whether the discrimination practiced by defendants is "under the law" (Const, art. 31, § 1) depends upon whether defendants were involved in "state action". Contrary to the majority, I find there is state action.
Burton v. Wilmington Parking Auth., 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961), requires a finding that the City's lease to FNI of the facility in which SuperSonics games are played makes the discriminatory pricing scheme state action. In Burton, the Supreme Court, while acknowledging that the determination of which types of conduct constitute state action must be made on a case-by-case basis, declared that the racially discriminatory conduct of a private party violates the Fourteenth Amendment if it occurs in space leased to the private party by a governmental entity. The Supreme Court found the leasing arrangement to be to the mutual benefit of the state agency and the private party:
[T]he commercially leased areas were not surplus state property, but constituted a physically and financially integral and, indeed, indispensable part of the State's plan to operate its project as a self-sustaining unit. . .
(Burton, at 723-24), and concluded that:
[W]hen a State leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of the Fourteenth Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself.
Burton, at 726.
As in Burton, the City here leased its facility to FNI to
The City made available a public facility, staffed with public officials and policed by public safety officers, for defendant's discriminatory pricing policies. It made no attempt to insure a nondiscriminatory ticketing scheme, but continued to lend its "power, property and prestige" to the Seattle SuperSonics. See Reitman v. Mulkey, 387 U.S. 369, 380, 18 L. Ed. 2d 830, 87 S. Ct. 1627 (1967). Although each case considering the existence of state action must be individually determined, it is clear that Burton applies here. This case and the City's participation in this scheme are distinguishable from, for instance, Moose Lodge 107 v. Irvis, 407 U.S. 163, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974); Kennebec, Inc., v. Bank of the W., 88 Wn.2d 718, 565 P.2d 812 (1977); Faircloth v. Old Nat'l Bank, 86 Wn.2d 1, 541 P.2d 362 (1975), all of which involved only statutory or administrative authorization of purely private actions. Under the facts before us, with the lease of a public facility it cannot be said that the pricing scheme in this case was not state action. See Jackson v. Metropolitan Edison Co., supra at 358.
It has been suggested that a more stringent standard of
Finally, application of the Equal Rights Amendment to defendants' actions in this case is required by ordinance and by the parties' lease agreement. In Burton, the Supreme Court twice noted that a requirement in the lease that the private party abide by the Fourteenth Amendment would quite clearly have been enforceable:
[I]n its lease . . . the [governmental entity] could have affirmatively required [the private party] to discharge the responsibilities under the Fourteenth Amendment imposed upon the private enterprise as a consequence of state participation. . . .
. . . [T]he proscriptions of the Fourteenth Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself.
Burton, at 725-26. That is precisely the approach taken by the City in this case. By ordinance, FNI agreed "to comply with all state and local laws prohibiting discrimination with regard to race, color, creed, sex, age, or national origin." Seattle City Ordinance 103025; see also lease agreement at 6; Addendum I to lease agreement "Seattle Center Tenant Rules and Regulations", at 2. Although the City may have thereafter attempted to "abdicate its responsibilities by
The majority maintains in note 4 that since in the lease the City "expressly required compliance with laws against discrimination", it is distinguishable from Burton. As indicated above, I believe this strengthens rather than weakens plaintiff's case. The decisive act involving state action is the lease by the City of Seattle to FNI and the interrelationship between these parties. As pointed out above, the "symbiotic relationship" between the City and FNI was even more intimate than that of the State and the restaurant owner who discriminated in Burton. Jackson v. Metropolitan Edison Co., supra at 358. The majority's observation that the City did not participate in setting ticket prices can hardly be more relevant than that the State did not set the menu prices in Burton.
It may be that application of the Equal Rights Amendment to the "promotional" activity of defendant is not the sort of thing the voters had in mind when they adopted HJR 61. Then again, an equally persuasive argument could be made that ticket price differentials based on sex were indeed one of a number of activities which they hoped to end. It is idle to speculate. No evidence of any kind exists. I see no escape from finding in this case that the plain language of Const, art. 31 proscribes the activity in which the defendants have engaged. Any further clarification of popular intent must come through the process of constitutional amendment, not by the imaginings of this court. Const, art. 23.
Reconsideration denied December 22, 1981.