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Blodgett v. University Club

August 9, 2007; as amended August 15, 2007


Appeal from the Superior Court of the District of Columbia (CA1754-01) (Hon. Stephanie Duncan-Peters and Hon. Cheryl M. Long, Motions Judges).

The opinion of the court was delivered by: Fisher, Associate Judge

Argued January 3, 2006

Before REID, GLICKMAN, and FISHER, Associate Judges.

The University Club concluded that appellant Todd Blodgett had used "the Club's facilities to conduct business with persons who publicly expound racist and anti-Semitic views," and it expelled him from membership for this and other reasons. Blodgett alleges that the expulsion violated the District of Columbia Human Rights Act of 1977,*fn1 which, among other things, prohibits discrimination based on "source of income" and "political affiliation." The Club, a public accommodation covered by the Human Rights Act, disputes appellant's interpretation of the Act and argues in the alternative that enforcing it in the manner requested would unconstitutionally infringe the Club's First Amendment freedom of expressive association. Blodgett has made additional claims sounding in contract and in tort.

We affirm the trial court's grants of summary judgment, which rejected Blodgett's claims of discrimination based on source of income and political affiliation as well as his other claims, which included defamation and invasion of privacy (false light), breach of contract, fundamental unfairness, and intentional infliction of emotional distress. We also affirm the trial court's grant of a protective order and its denial of a motion for admission pro hac vice submitted by one of Blodgett's advisers.

I. The Factual Background

A. Bad Publicity

Todd Blodgett joined The University Club, a Washington D.C. private social club, in August of 1993, and he used the Club regularly to entertain business clients, to socialize, and to exercise. Blodgett was known to be active in Republican politics; he also worked for groups that promoted "right-wing" political causes, and he was hired as an independent contractor for Liberty Lobby, an organization run by Willis Carto. Blodgett sold advertising in The Spotlight, a newspaper in which Liberty Lobby took anti-Israeli and anti-Zionist stands.

Blodgett's association with Carto and Liberty Lobby was unpopular with many of the Club's members. Its Jewish members in particular were offended by the anti-Zionist views of Carto, Liberty Lobby, and The Spotlight. No by-law or rule purports to limit the type of guest who may be invited, but, in an effort to placate his fellow members, Blodgett voluntarily stopped bringing Carto to the Club.

In March 1999 Dr. William Pierce, a nationally known white supremacist and chairman of an organization called the "National Alliance," contacted Blodgett, seeking to purchase his shares of stock in Resistance Records, which Blodgett himself has characterized as "a purveyor of hate music." The two men dined at the Club in April 1999 and discussed a sale of the stock. A month or two later, Blodgett sold his interest in the record label to Dr. Pierce for $15,000. The Club acknowledges that Dr. Pierce's appearance at the Club did not cause a disturbance or engender controversy at the time.

However, on January 12, 2000, The Washington Post published an article about Dr. Pierce entitled "The Pied Piper of Racism." It reported that Pierce and Blodgett had dined at the Club in April of 1999 and had "haggled over" control of Resistance Records. The next day Blodgett sent the Club's Board of Governors a letter apologizing for the publicity caused by Dr. Pierce's visit. Despite Blodgett's apology, controversy erupted within the Club's membership. In addition to creating general "tension and consternation" in the Clubhouse, the Post article prompted several members to write the Club's Board of Governors, demanding Blodgett's expulsion.*fn2

B. The Investigation

The Club's Board of Governors met on January 14 and conferred on a course of action, agreeing to appoint two or three members of the Club to investigate the factual basis for the Post article, including Blodgett's professional involvement with hate group organizations. The investigators would also review Blodgett's behavior in the Club, including previous allegations of anti-Semitism.The same day, the Executive Committee of the Board voted unanimously to suspend Blodgett's membership pending the outcome of the investigation. According to Blodgett, Club President Beck and General Manager Albert Armstrong informed him that his immediate resignation would eliminate the need for the investigation -- which, they warned, inevitably would result in his expulsion. Armstrong explained that unless Blodgett resigned, the Club would disclose Blodgett's membership file -- which contained possibly embarrassing allegations and complaints of misconduct, some pre-dating Blodgett's membership in the Club -- to the investigating committee. Blodgett refused to resign and he was suspended.

During the next two weeks, two members of the Clubinvestigated alleged misconduct by Blodgett, interviewing more than twenty-five witnesses. On February 3, 2000, they submitted a report which contained numerous allegations that Blodgett, while on Club premises, had engaged in racist, anti-Semitic, homophobic, and misogynic conduct. These included allegations that Blodgett had used offensive racial and ethnic slurs such as "nigger" and "kike lawyer" and "wops." Blodgett denied all of these allegations.

C. The Expulsion

The Board invited Blodgett and his counsel to a meeting scheduled for March 2, 2000, to determine if disciplinary action should be taken. Beforehand, Blodgett and his counsel were sent copies of all e-mail and correspondence from Club members to the Board related to the investigation, as well as a copy of the investigative report, which contained typed summaries of the interviews conducted. (The summaries did not disclose the identities of the individuals who had been interviewed.)After hearing from Blodgett and his counsel, the Board voted 8-2 to afford Blodgett an opportunity to resign and, if he refused, to expel him. He was expelled for the following reasons, each of which provides independent grounds for expulsion: (1) his repeated use of offensive racial and ethnic slurs while on Club premises; (2) his non-joking references to and comments about women, African-Americans, Jews and Native Americans in a derogatory and offensive manner while on Club premises and (3) his use of the Club's facilities to conduct business with persons who publicly expound racist and anti-Semitic views.

(Emphasis added.)

D. The Litigation

On March 2, 2001, Blodgett filed a civil complaint which he has since amended. Naming the Club, certain Board Members, General Manager Armstrong, and three other Club members as defendants, he alleges breach of the Club's by-laws, failure to provide due process, breach of contract, defamation, invasion of privacy (false light), violations of the Human Rights Act, intentional infliction of emotional distress, breach of the obligation of good faith and fair dealing, aiding and abetting, and invasion of privacy by giving unreasonable publicity to private life.*fn3 On June 1, 2004, in a forty-three-page memorandum opinion and order, Judge Long denied Blodgett's motion for partial summary judgment and granted summary judgment to appellees on all counts. Blodgett has appealed this judgment, as well as Judge Duncan-Peters' protective orderbarring P. Jay Fetner from attending depositions on his behalf, Judge Long's denial of a motion for reconsideration, and Judge Long's denial of Fetner's motion for admission pro hac vice.

II. Principles Governing Our Review

"Summary judgment is appropriate only when there are no material facts in issue and when it is clear that the moving party is entitled to judgment as a matter of law." Puma v. Sullivan, 746 A.2d 871, 874 (D.C. 2000) (internal quotation marks and citation omitted). In reviewing a trial court order granting a summary judgment motion, "we conduct an independent review of the record . . . ." Wallasey Tenants Ass'n v. Varner, 892 A.2d 1135, 1138 (D.C. 2006). Although we must view the record in the light most favorable to the non-moving party, Deutsch v. Barsky, 795 A.2d 669, 673 (D.C. 2002), mere conclusory allegations are insufficient to avoid entry of summary judgment. Musa v. Continental Insurance Co., 644 A.2d 999, 1002 (D.C. 1994). See also Super. Ct. Civ. R. 56 (e) ("the . . . response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial"). "'[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Brown v. George Washington Univ., 802 A.2d 382, 385 (D.C. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). "'The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].'" LaPrade v. Rosinsky, 882 A.2d 192, 196 (D.C. 2005) (quoting Liberty Lobby, 477 U.S. at 252).

"The Supreme Court has recognized that '[c]onstitutional adjudication [is] a matter of "great gravity and delicacy"' and that courts should generally avoid ruling on constitutional questions unless they have no other choice." Lewis v. Hotel & Restaurant Employees Union, Local 25, 727 A.2d 297, 301 (D.C. 1999) (citing Kremens v. Bartley, 431 U.S. 119, 128 (1977)). We therefore begin our inquiry by considering Blodgett's claims under the Human Rights Act; if the Club's conduct did not constitute a potential violation of the Act, we will not need to consider its constitutional defense.

III. The Human Rights Act

A. General Provisions

In 1973 the District of Columbia Council adopted Title 34 of the District of Columbia Rules and Regulations, known as the "Human Rights Law" (34 DCRR § 3.1). Concerned that these police power regulations might not have the same force and effect as a statute, the post-Home Rule Council of the District of Columbia re-enacted the regulations as The Human Rights Act of 1977. The first section of the Human Rights Act explains the intention of the legislature:

It is the intent of the Council of the District of Columbia, in enacting this chapter, to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, and place of residence or business.

D.C. Code § 2-1401.01 (2001 & 2006 Supp.) (emphasis added).*fn4 The Human Rights Act is a broad remedial statute, to be generously construed. Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 889 (D.C. 1998); Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 398 (D.C. 1991). We have also described the Human Rights Act as a "powerful, flexible, and far-reaching prohibition against discrimination of many kinds." Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 732 (D.C. 2000) (citation and internal quotations omitted).

D.C. Code § 2-1402.31 prohibits discrimination in public accommodations*fn5 and provides, in very broad terms, that:

(a) General. It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based on the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, genetic information, disability, ...

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