*1 сonvictions. reasons, the defendant's we affirm For these J., concur. C.J., Petrie, Pearson, September One. 1979.] Division 6573-1. [No. Appellant, Northwest MacLean, First Bruce al, America, Inc., et Industries Respondents. *2 Stobaugh Strong
Bendich, Bendich, & E. and Judith for appellant.
Douglas City Attorney, Jewett, Brown, N. Charles D. Dwyer, Culp, Assistant, Grader, Guterson & William L. Dwyer, respondents. Worcester, and Mark P. for damages brought J. This is a action class for
Dore, against organization alleging the Sonic their that "Ladies' Night" price practice tiсketing sex constituted discrimina- (RCW by prohibited tion 49.60), the law discrimination (article Equal and the state constitution (ERA)). summary appeal Plaintiffs Amendment judgment of dismissal. We reverse and remand. Issues every Nights" game
1. Do occur third dur- "Ladies' ing throughout season, the Sonics' home stand wherein price tickets are sold women at one-half the tickets men, for constitute sex discrimination? for ticket to a man
2. If the to sell a refusal basketball discrimination, woman price the same as a constitutes constitutional, both? law, statutory, it prohibited summary in granting Whether the trial court erred 3. class action. judgment dismissing plaintiff's Facts MacLean, 28, 1976, his Sunday, On plaintiff November basket- couple, Supersonics and another attended a spouse game purchased ball at Center Coliseum. MacLean Seattle for same admis- requested pay tickets the four. He paid for male as that price sion himself and the othеr bas- spectators Night" Supersonics female "Ladies' ticket refused sell MacLean game. ketball seller rate for discount percent tickets the males the 50 seats spectators for the same class of charged female price seller despite complaint MacLean's to the of his sex. solely constituted account price then at the purchased MacLean two tickets reduced price for lаdies and the full or twice that amount paid *3 for price and a friend. Had he not the paid higher himself males, the permitted he would not have been to attend game. basketball this complaint
MacLean then filed class action costs damages, for relief and injunctive the defendants discrimination, the 49.60, RCW under the law against Act, defendants Consumer Protection RCW 19.86.020. The Industries, complaint the are First Northwest designated (hereinafter FNI), designated City Inc. and the of Seattle (hereinafter City). FNI the Seattle designated operates for ticket primarily responsible setting and is Supersonics and, time, at that leased games for basketball prices Sunday City from of and established Coliseum Seattle City of years ago. The Night" games basketball "Ladies' for public Coliseum owns maintains the Seattle Seattle facility for accommoda- It is a public-owned events. tion assemblies and amusement. City, among things,
Thе lease between FNI and the other provides comply will "That said Lessee with all of laws Washington States, of United the State of ..." agrees comply The Lessee to with all state and local prohibiting regard race, color, laws with to age origin. creed, sex, or national comply any provi- to Failure of the of this terms sion shall a breach this material lease. vice-president Volchok, FNI, Zollie M. the executive first-party affidаvit, his stated reference to "Ladies' Night": night part The ladies' discount has been a promotional years. team's when we entered the for effort ten It obvious was league disproportionately low attending games. number of women were NBA basketball hope attracting making fans, In the women and also of SuperSonics inaugu- attend, easier families night offering half-price rated ladies' tickets to games played nights. survey women for A all on wеek which we took showed that attendance was about the team's % composed appeared of women. It neces- sary although night so, to continue with did ladies' and we day Sunday changed the week was beginning of 1971-72 season. Between 1968 and top except 1975 the Sonics made all tickets those price half-price bracket available women at on ladies' night. policy enlarged beginning was (1976-77) availability current season to include the half-price categories, including top tickets all price. plaintiff reconsideration,
On motion for moved to complaint by pleading amend his vio- defendant also constitution, lated article 31 the state known as the Equal Rights request was How- Amendment. This denied. always sponte ever, this court sua can consider constitu- issues, tional here. and does so
X65 Decision Half-price tickets con- basketball and ladies' 1 Issues violate sex discrimination and stitute ERA to consti- state RCW 49.60 and (article 31). tution granted of order the defendants an The trial court summary judgment. pursuant In such instance dismissal prove by moving party, herein, uncon must defendants genuine issue of material is no troverted facts there nonmoving party all reasonable fact. The is entitled State, v. from the Jacobsen inference facts. (1977).
108-09,
whether conduct which is formally private is so entwined governmental policies impregnated with ernmental character as to a gov- so subject
become
the consti-
tutional
. . .
limitations
state action
Attorney
20, 1966,
Opinion,
General
explaining
June
Burton v. Wilmington Parking
Authority,
365 U.S.
L.
Ed.
2d
Burton arose the context of an immutable trait suspect and a equal classification under traditional protec- Burton, analysis. tion private space a restaurant leased from a Wilm- parking garage owned and operated Authority. ington Parking The restaurant to serve refused solely Burton William because of his insti- race. Burton suit for declaratory tuted and injunctive relief under protection equal The clause Fourteenth Amendment. granted court and Authority's state restaurant's motions for summary judgment grounds on the lessee, in business, the conduct its was acting purely private capacity and no action therefore state existed under the Fourteenth Amendment. Supreme strongly disagreed.
The Court "State action" based on such financial existed factual considerations as the interdependencе Authority between lessee and the the mutual under obligations the terms the leasehold. court page stated at activities, obligations respon-
Addition of these all Authority, sibilities of con- mutually the benefits ferred, together with the obvious fact restaurant operated integral part public building is devoted to a as an of a public parking degree service, indicates that participation discriminatory of state action which it was the and involvement design of the Fourteenth Amend- ment to condemn. Wilmington Parking Authority, supra
Burton v. at 724. good The court ruled that the faith belief either the Authority or the lessee could not excuse the discrimination. equal It is of no consolation to an individual denied the
protection good of the laws that it was done in faith By Authority, through inaction, .... it the *6 only party State, has not made itself a to the refusal of place power, property service, but hаs elected to its and prestige behind the admitted discrimination. Wilmington Parking Authority, supra Burton v. at 725. regard Burton in arose to race discrimination. The doc- applied Seidenberg trine has been to sex discrimination. v. McSorleys' (S.D.N.Y. Supp. House, Inc., Old Ale F. 317 1970) (state by liquor action found issuance a license to a place public accommodation); Dyer's accord, Bennett v. Chop (N.D. 1972). Supp. House, Inc., 350 F. Ohio subject
The facts in the case to lead the conclusion that pervades discriminatory policies state action the sex carried by stronger out factually FNI. This case is much than By agreed comply ordinance, Burton. FNI "to with all state prohibiting regard and local laws discrimination with age, race, color, creed, origin." sex, or national Ordinance 103025, No. By 14; see also lease, Addendum I to at 2. comply ordinance FNI must with all laws the United Washington States and the State of and any [I]f the attention of the Lessee is called to such vio- part by any person employed lation on of Lessee or premises, or admitted to the said such will Lessee immediately from desist and correct such . . . violation Ordinance, at 6. openly policy profit
FNI has carried on its for 10 years, disregard changes oblivious to and in in law policy legislature voters, and commanded Despite responsibilities guardian the courts. its as of all its ordinance, City its own power citizens and its under by in of sex discrimination did the face nothing Seattle collects taxes. that it lessee with the excuse a has been whether there next must determine We Gould, supra, In Darrin our violation of the ERA. district, operating where a school Supreme Court held that fully qualified state, denied two of its high school this high on the school play high permission school students on the solely competition football team interscholastic prohibited the denial was girls, were ground the students page court reasoned at on sex. The based play permission were denied girls When the Darrin Const, Washington's art. the fall Equal provided: Amendment under the law
Equality responsibility shall not on account sex. abridged be denied (Italics ours.) Const, expression the latest provided art. state, with sex discrimi- dealing constitutional nation, law of the Presumably themselves. adopted by people аs Const, to do more 31 intended people adopting art. otherwise contained repeat already was than what state, by federal and provisions, governing constitutional under permissible on sex was which discrimination based scrutiny Any tests. strict relationship rational *7 to accom- intended people view would mean the other plish govern- law existing no in the constitutional change to make the discrimination, except possibly sex ing within the on come validity based sex a classification Const, 7, 12. See footnote 1, class art. suspect under § intended, there been supra. purpose Had such a limited broad, to the necessity to resort have no would been Rights Equal mandatory language sweeping, in Comment, Sex Discrimination See Amendment. Athletics, L. Syracuse High School Interscholastic 535, 570-74 Rev. Gould, v. supra at 871.
Darrin justices other Hamilton, with three concurring Justice Darrin, observation: interesting in made the the court With I in qualms by some concur result reached the so, however, I do majority. exclusively upon the basis by mandatory that language the result is dictated the broad and Const, 31, Equal art. Washington's § (ERA). Rights ing people Amendment Whether enact- ERA fully contemplated appreciated reached, result coupled prospective here varia- tions, may questionable. Nevertheless, be in sweeping they language embedded ERA our principle constitution, beyond and it is authority of this court modify people's will. So be it. Gould, Darrin v. supra 878. York,
In New New York Yankees offered discount prices Day" for women at games "Ladies' baseball at Yan- kee Stadium. price This was held to prohibited York the New Rights State Human Appeal Statute, Board York under the New Law Exec. Inc., 296.2, Yankees, Abosh New York CPS-25284, No. (N.Y. Appeal Board, No. 1194 State Human Appeal 1972). July
The court holding sex discriminatiоn under the New Statute, York reasoned:
It appear would statutory further that criterion on sex is extensive to both men and women and that it no preferential accords treatment or privileges women over men.
The record further shows that at the Conference held Division respondents argued "the November that Day" "Ladies also encouraged women United stronger States build bonds with the male members sport their families" and that a family "Baseball is sort Pop of Mom and deal." —a argument, Respondents' praiseworthy, although is untenable intact families presupposes where every woman has a man to take Unfortu- care her. nately, today, not the case America where of all families are headed women and where 11.5% divorced, working of all are single, 40% women either deserted, widowed, separated abandoned.
170 best unending to serve the
Perhaps, quest their Community Day public, interests the social sex, than a prices irrespective rather Ladies reduced sex, might on well Day pricing with its attendant based violating without respondents' social concerns accomplish State as the sex policy the of this embodied prohibition of Section 296.2. Yankees, York supra. v. New
Abosh
v.
298,
Chaney,
In Marchioro
Under the rights single test tion/suspect replaced classification discriminatory? or, Is the criterion: classification amendment, language or in the denied Has been equality abridged account sex? language Gould, Darrin v. discrimi- 877, ERA our page "under ours.) (Italics nation on account See of sex is forbidden." Hara, Singer v. 257, P.2d 247, 11 522 1187 App. Wn. (see, e.g., 80 equal The thrust amendment Comment, supra; Equal (1971), L.J. 871 Yale Constitutions, Under State Experience Provisions: (1977)), special L. Rev. is to treatment 65 Cal. 1086 end against or discrimination either sex. for (Some ours.) italics Orr,
In Orr v. L. S. 59 Ed. 2d 99 Ct. U.S. (1979), the court struck down an Alabama statute husbands, wives, may but not provided which required court held that pay alimony upon divorce. The men in vio- statute discriminated gender-based equal lation of the clause of Fourteenth protection At court page Amendment. said: which benefits and Legislative classifications distribute inherent gender carry on the basis of risk burdens place" about reinforcing stereotypes "proper United Cf. special protection. their women and need Carey, Organizations Jewish 173-174 430 U. S. (1977) (concurring opinion). purport- Thus, even statutes *9 edly designed compensate for and ameliorate the past carefully effects of discrimination must be tailored. compensatory Where, here, as the State's and ameliora- purposes gender-neutral tive are as well served a gender-classifies classification as one that carries with it the and therefore baggage stereotypes, of sexual permitted classify State cannot be on the basis of sex. doubly And this is so where the choice made the State appears only indirectly to redound —if the benefit of —to special those without need for solicitude. policy discriminatory We hold that the tiсket here was on the basis of sex. Such discrimination on account of sex is supra. Gould, forbidden. Darrin Against Sonic Ticket Practice Violates Law Discrimination, RCW 49.60 Washington legislature police under the power comprehensively State, of the amended law against discrimination, RCW 49.60. The law what reasserts history experience repeatedly shown, have that dis- crimination on the of basis an immutable trait is harmful to society. the fabric of our RCW 49.60.010 states: legislature hereby practices The finds and declares that against any of discrimination of its inhabitants because of . . . . . . concern, are a matter of state that such proper not threatens privileges of its inhabitants but menaces the institutions and foundation of a free democratic state. injustice readily recog- of the case at bar would impermissible
nized as if it arose the context of race. It Night" would be inconcеivable to have a "Blacks' or Night" "Filipinos' Night" "Whites' or a at the Seattle Cen- unsupportable City ter Coliseum. It would be for the of any Seattle to increase its coffers or take revenues basis of race classifications. plaintiff's complaint alleged case,
In the instant FNI's Night" ticketing practice right "Ladies' violated his civil by denying be free from sex discrimination him full "the enjoyment any advantages, accommodations, facilities, resort, оr privileges any place public accom- modation, RCW assemblage, amusement". 49.60- .030(l)(b). complaint Plaintiff's also a denial of the alleged "equal resort, of such enjoyment" places accom- modation, etc. intent, determining
When
the legislative
purpose
for which
prime impor
the law was enacted is a matter of
tance
arriving
interpretation
thing
at a correct
and a
which is within the
object, spirit,
meaning
the stat
ute is аs much within
if it
the statute as
were within the
In re
Donnelly,
letter.
Estates
81 Wn.2d
502 P.2d
(1972).
1163, 60
See also Washington
A.L.R.3d 620
Water
Comm'n,
Power Co. v.
State Human
The trial judgment court's dismissal *10 plaintiff's complaint produced has result inconsistent intent, i.e., legislature's plaintiff has been discrimi- of against nated the basis sex and has been denied the remedy civil to provide. statute was intended RCW "full of" enjoyment 49.60.040 defines as follows: enjoyment
"Full of" to . . . right includes . . any any admission of to . ... of person facilities amusement, . . placе indirectly causing public directly of . without or acts race, any particular of creed persons color, welcome, or or to as not desired accepted, be treated
solicited; ours.) (Italics that judge specific The trial believed this of definition controlled over other definitions "full possible from a rule of construc- enjoyment." applying We refrain pri- tion which would this court abandon its demand that statutes; of mary objеctive construing construing when with the intent. legislative a statute a manner consistent protec- 1973 to extend its RCW 49.60.030 was amended of of ch. because sex. Laws tions RCW was reenacted at that Although 3. 49.60.040 word to the last time did not add the "sex" legislature of "full of." This omis- enjoyment of the definition portion sion, statutory purpose with the stated together when read 49.60.010,
in RCW ambiguity legislative raises an as intent. statutory find the rule of construc appropriate
We
language
suscep
tion which
if
of a statute is
provides
constructions,
carry
of two
one of which will
out and
tible
statute,
objective
the other defeat
the clear
the stat
carry
ute will be construed
such a
as to
out its
manner
Co.,
object. Miller
Paul Revere
Ins.
Life
interpretation
given
Anderson v. Pantages Theatre supra, involved a civil action a theater for discriminatiоn for violation of a criminal page statute. The statute stated at
"Every person deny any person who shall other race, enjoyment color, or any because of creed full accommodations, advantages, facilities or privi- resort, any accommodation, leges place amusement, assemblage guilty or shall be of a misde- meanor."
(Italics ours.)
The court interpreted then not the form and effect right the statute but also the to "full enjoyment." statute,
This while in form penal only, penal is both and remedial pro- nature and effect. addition to viding punishment for a criminal proprietors such places discriminating against the admission thereto race, color, persons on account of creed confers gill the individual —it upon upon persons, confers *11 to race, right color, regardless of their creed or admitted to the all others. enumerated оn with places terms equal Co., v. Pantages (Italics ours.) supra Anderson Theatre 27-28. the Anderson court's
We interpretation believe being right to "full as to be right enjoyment" resort, accommodation, places admitted assem amusement, terms with equal blage, all others is 174 and is consistent with the
applicable the instant case remedy for victims of sex legislative provide intent a civil discrimination. (1) in summary,
In we conclude that state action exists Coliseum, tickets at the selling of Sonic basketball (2) ticket constitute Night" practices that Sonic "Ladies' our ERA as well as under sex discrimination under state's discrimination, RCW 49.60. law future, Sonic may Night" suggest "Spouses' we the ladies' promote as vehicle to games basketball attendance. in be allowed a rea-
Attorneys' appeal fees on this shall by the trial court. sonable amount as determined proceedings further Reversed and remanded opinion. accordance with this reversing concur (concurring part) J. —I
Farris, compelled This result summary of dismissal. judgment of Const, to the Constitution sixty-first amendment Amendment, Washington, Equal Rights State 31, l,1 Washington State by the interpreted art. as Chaney, in Marchioro v. Court Supreme Gould, Wn.2d (1978) Darrin v. P.2d 487 P.2d 882 Judge (concurring part) agree J. —I
Andersen, reversing summary judg- concur Farris and therefore ment dismissal. October 1979.
Reconsideration denied 15, 1980. February Court by Supreme Review granted Washington 1 Approved by people on November state of a vote of the 1972.