Thе WORLD PEACE MOVEMENT OF AMERICA, an unincorporated association, and Israel K. Malupo, Plaintiffs and Appellants, v. NEWSPAPER AGENCY CORPORATION, INC., Defendant and Appellee.
No. 920507
Supreme Court of Utah
July 27, 1994
253
Based on the foregoing, we hold that stock in a mutual irrigation corporation represents a real property interest and therefore is not a certificated security under
ZIMMERMAN, C.J., and HOWE and DURHAM, JJ., concur.
STEWART, Associate C.J., dissents.
Michael Patrick O‘Brien, Sharon E. Sonnenreich, D. James Morgan, Salt Lake City, for defendant.
Kathryn D. Kendell, Salt Lake City, for amicus curiae American Civil Liberties Union.
DURHAM, Justice:
Plaintiff The World Peace Movement of America (“World Peace Movement“) appeals from a Third District Court order dismissing its civil rights action against defendant Newspaper Agency Corporation (“NAC“). World Peace Movement also appeals a second order awarding NAC the sum of $17,047 in actual and necessary expenses incurred in defending the action. We affirm the district court‘s order dismissing the civil rights action but vacate its order awarding expenses to NAC.
The relevant facts of this case are undisputed. World Peace Movement is an unincorporated religious association led by Israel K. Malupo. NAC is a for-profit corporation that serves as an agent for two privately owned newspapers, the Deseret News and The Salt Lake Tribune. The Deseret News is published by the Deseret News Publishing Company, which is owned by The Church of Jesus Christ of Latter-day Saints. The Salt Lake Tribune is published by the Kearns-Tribune Corporation. NAC provides circulation, advertising, production, and other services for both newspapers. Each newspaper, however, maintains independent editorial functions and separately decides what it will and will not publish. The publisher of each paper sets guidelines as to the types of advertisements the paper will accept and reserves the right to decline to publish an advertisement on the basis of content. NAC, in its capacity as agent, implements the advertising guidelines established by each publisher.
In September 1990, Malupo attempted to place an advertisement on behalf of World Peace Movement in T.V. Week, the television weekly NAC prints for the Deseret News and The Salt Lake Tribune. T.V. Week contains a blend of feature stories and advertisements, along with schedules for the coming week‘s television viewing. The group‘s advertisement contained a brief spiritual message accompanied by a black and white portrait which World Peace Movement describes as “a dark-skinned man with Polynesian features, dressed in biblical garb.”
According to World Peace Movement‘s beliefs and doctrines, the portrait accurately portrays Jesus Christ “as a mortal about 2,000 years ago.” Thе purpose of the advertisement was to explain World Peace Movement‘s teachings and to invite public inquiry into its religious doctrines. By including the portrait in the advertisement, World Peace Movement hoped to convey one of its central tenets—the belief that Jesus Christ had a dark complexion.
While The Salt Lake Tribune agreed to publish the advertisement in its entirety, the Deseret News refused. After receiving the advertisement, NAC employees presented it to Wm. James Mortimer, NAC director and publisher of the Deseret News, for his review. Mortimer agreed to publish the text of the
NAC informed Malupo of the newspapers’ respectivе positions. Affidavits submitted by NAC indicate, and World Peace Movement does not dispute, that Malupo agreed to this arrangement and approved the advertisements. On September 23, 1990, NAC published the complete advertisement in The Salt Lake Tribune‘s version of T.V. Week, while the Deseret News’ version carried only the text.
During the ensuing week, World Peace Movement informed NAC that both advertisements contained an incorrect phone number. Although Malupo had inspected and approved the advertisements, NAC agreed to republish them in the newspapers’ September 30, 1990, versions of T.V. Week. Thus, as of September 30, 1990, The Salt Lake Tribune had twice published the complete advertisement and the Deseret News had twice published the text of the advertisement.
On October 1, 1990, World Peace Movement attempted to contract with NAC to publish the complete advertisement in both newspapers’ T.V. Week. World Peace Movement sought to place the advertisement for twenty-six weeks in full color. However, NAC refused to place the complete advertisement in either newspaper.
NAC‘s blanket refusal apparently resulted from a change in T.V. Week printing policy. When Malupo first submitted the advertisement, each newspaper provided its subscribers with a different version of T.V. Week. Thus, it was possible for The Salt Lake Tribune to print an advertisement that the Deseret News had rejected. However, in late September or early October, NAC, The Salt Lake Tribune, and the Deseret News revised their printing policies and decided to publish a single version of T.V. Week for both newspapers. Under the new procedure, one newspaper could still accept T.V. Week advertisements that the other rejected, but the accepting newspaper had to pay the additional production costs incurred by NAC. Apparently, NAC refused to publish World Peace Movement‘s advertisement in The Salt Lake Tribune solely because the Deseret News refused to carry the portrait.
After exchanging several letters concerning the advertisement and NAC‘s reasons for rejecting it, on April 10, 1992, World Peace Movement filed a religious discrimination lawsuit against NAC under the Utah Civil Rights Act (the “Act“).
NAC filed a motion to dismiss that was alternatively fashioned as a motion for summary judgment. World Peace Movement responded with a motion for partial summary judgment. Both parties filed supporting memorandа and affidavits along with their respective motions.
Following oral argument, the district court dismissed World Peace Movement‘s motion for partial summary judgment and granted NAC‘s motion to dismiss or alternatively for
World Peace Movement appeals both district court orders to this court. We note that the issues presented are questions of first impression.
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
On appeal, World Peace Movement clarifies the nature of its religious discrimination claim. In essence, it argues that religious discrimination is unique among civil rights claims in that an individual‘s religion often cannot readily be surmised from that individual‘s appearance. Thus, before a business establishment can discriminate on religious grounds, it must somehow be “tipped-off” as to the individual‘s religious beliefs. World Peace Movement contends that its advertisement provided NAC with that information.
According to World Peace Movement, NAC decided to discriminate against the group after Mortimer inspected the advertisement and learned that World Peace Movement believed Jesus Christ had a dark complexion. Again, this belief is a central tenet of their religion. Thus, World Peace Movement argues that in refusing its publishing services on the basis of the advertisement‘s depiction of Jesus Christ, NAC discriminated against its members on the basis of their religious convictions in violation of
NAC defends its conduct on both statutory and constitutional grounds. At the statutory level, it argues that World Peace Movement‘s claims must be dismissed because NAC‘s conduct did not violate the Act.3 NAC claims that it did not unlawfully discriminate against members of World Peace Movement because of their religion. Rather, it contends that as the Deseret News’ agent, it simply exercised editorial discretion and refused to accept World Peace Movement‘s аdvertisement on the basis of content. NAC insists that “[a]nyone else presenting an advertisement with similarly-offensive content would have been treated similarly.” Thus, NAC asserts that no unlawful discrimination occurred.
At the constitutional level, NAC contends that World Peace Movement‘s claim is precluded by the free speech and press guarantees of both the state and federal constitutions. Under this argument, NAC relies heavily on Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257-58, 94 S.Ct. 2831, 2839-40, 41 L.Ed.2d 730 (1974), which held unconstitutional a state statute granting political candidates a “right of reply” in news-
World Peace Movement responds to NAC‘s constitutional arguments by asserting that neither article I, section 15 nor the First Amendment shields NAC‘s conduct. Relying on KUTV, Inc. v. Conder, 668 P.2d 513, 521 (Utah 1983), which recognized that article I, section 15 does not create an absolute right that defeats all other freedoms and interests protected by the Utah Constitution, and Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 389, 391, 93 S.Ct. 2553, 2560-61, 2562, 37 L.Ed.2d 669 (1973), which upheld an ordinance prohibiting newspapers from listing “help-wanted” advertisements in sex-designated columns, World Peace Movement notes that government may infringe on newspapers’ free speech and free press rights when a compelling state interest, such as eradicating religious discrimination, is at stake. Thus, World Peace Movement concludes that the Utah Civil Rights Act lawfully circumscribes NAC‘s article I, section 15 and First Amendment rights.
1. Interpreting the Utah Civil Rights Act
Although the parties urge myriad constitutional claims and defenses upon us, “[i]t is a fundamental rule that this Court should avoid addressing constitutional issues unless required to do so.” State v. Anderson, 701 P.2d 1099, 1103 (Utah 1985). Accordingly, we first examine the parties’ statutory claims. Because we conclude that World Peace Movement does not have a cognizable claim under the Act, we do not reach the parties’ constitutional arguments.
The operative language in this case is “[a]ll pеrsons ... are entitled to full and equal ... services ... without discrimination on the basis of ... religion.”
We conclude from this language that the Act prohibits NAC from denying its advertising services on the basis of the religion of the person seeking those services. Never-
The Act, however, does not prohibit “discrimination” against religious beliefs, ideas, or sentiments standing alone, apart from the persons who hold and profess them.8 World Peace Movement appears to be entirely correct in its assertion that NAC refused to print its advertisement because of its religious message that Jesus Christ had a dark complexion. Nevertheless, it was the message itself that NAC rejected, not its propo-
Furthermore, World Peace Movement does not allege that NAC refused to accept other advertisements, whether or not religious in nature, submitted by World Peace Movement members. NAC simply rejected this particular advertisement on the basis of content. As the situation stands, World Peace Movement, like any other person or entity, is free to purchase advertising from NAC subject to NAC‘s editorial judgment.
2. Attorney Fees and Section 13-7-4
World Peace Movement next challenges the district court‘s award, pursuant to
The proper construction of
When faced with a question of statutory construction, we look first to the plain language of the statute. Larsen, 865 P.2d at 1357; Schurtz, 814 P.2d at 1112; Bonham v. Morgan, 788 P.2d 497, 500 (Utah 1989) (per curiam). Only when we find ambiguity in the statute‘s plain language need we seek guidance from the legislative history and relevant policy considerations. Schurtz, 814 P.2d at 1112; Bonham, 788 P.2d at 500. Because the plain language of
With respect to World Peace Movement‘s first claim, we find no error in the district court‘s conclusion that
We similarly find no error in the district court‘s conclusion that
Nevertheless, there is at least some ambiguity in the legislature‘s decision to use the phrase “all actual and necessary expenses incurred in defending such action” rather than expressly referring to “attorney fees” and/or “court costs.” However, the legislative history of
Prior to incorporating
As an example, I‘m concerned about the economic effect of bringing an unwarranted action against a small businessman or a series of unwarranted actions against a large businessman. My intent in offering this amendment is to make it more difficult, if not impossible, to put any person or corporation out of business merely because of the burden assumed in defending lawsuits.
Floor Debate, vote on S.B. 44, 36th Utah Legis., Gen.Sess. (Jan. 28, 1965) (Senate Recording No. 4) (statement of Sen. Brockbank). Thus, the legislature intended that
With respect to World Peace Movement‘s final claim of error, we note that the plain language of
Based on the legislative history cited above, we conclude that the proper exercise of the discretion afforded courts by
Furthermore, the policy considerations underlying the Act as a whole strongly support this conclusion. The Act establishes that “discrimination on the basis of race, color, sex, religion, ancestry, or national origin in business establishments or [other covered entities] endangers the health, safety, and general welfare of this state and its inhabitants ... and that such discrimination ... violates the public policy of this state.”
Forcing unsuccessful civil rights plaintiffs to pay the defendants’ expenses, regardless of the merits of the plaintiffs’ claims, would discourage future plaintiffs from seeking the full protection of thе Act and thereby undermine its fundamental purpose. Such a situation could intimidate legitimately aggrieved plaintiffs while permitting unlawful discrimination to flourish. Accordingly, we adopt the following standard for awarding
The district court may award prevailing defendants their actual and necessary expenses under
Determining whether a civil rights plaintiff‘s claim is frivolous for
Courts must bear in mind that the terms, policy, and purpose of the Act require that it be liberally construed. Plaintiffs with at least colorable claims of discrimination must not be forced to pay the defendants’ expenses under
In sum, we hold that World Peace Movement has failed to allege an injury cognizable under the Act. The Act creates individual rights protecting persons from invidious discrimination on the basis of their membership in suspect classifications. The Act does not prohibit newspapers from discriminating on the basis of content, even if that content is religious in nature. Thus, we affirm the district court‘s order granting summary judgment in favor of NAC.
We further hold that a court may award a prevailing defendant expenses under
ZIMMERMAN, C.J., and STEWART, Associate C.J., concur.
RUSSON, Justice, concurring in part and dissenting in part:
I concur in the majority opinion with the exception of section two. I write separately (1) to express my concern with the majority‘s determination that the term “expenses,” as used in
In Utah, attorney fees are awardable only when authorized by statute or contract. Baldwin v. Burton, 850 P.2d 1188, 1198 (Utah 1993); Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988); Turtle Management, Inc. v. Haggis Management, Inc., 645 P.2d 667, 671 (Utah 1982); see also 20
First, such an interpretation marks a clear break with well-settled precedent in which this court has affirmed the award of attorney fees only when such award has been based on specific words providing for them in either the statute or the contract in question. See, e.g., Baldwin, 850 P.2d at 1198-99 (awarding attorney fees under
Second, absent specific statutory language, we have not read the use of terms similar to expenses, such as “costs,” to include an award of attorney fees. See, e.g., Wallis v. Thomas, 632 P.2d 39, 43 (Utah 1981) (awarding costs to plaintiff, but remanding for determination of attorney fees); Cluff v. Culmer, 556 P.2d 498, 499 (Utah 1976) (holding attorney fees not allowable as costs); Alexander Dawson, Inc. v. Hydroponics, Inc., 535 P.2d 1251, 1251 (Utah 1975) (same); see also Tholen v. Sandy City, 849 P.2d 592, 595-96 (Utah Ct.App.) (holding that phrase “[c]osts of collection as approved by the governing body or required by law” in
Third, Utah decisions have consistently treated “expenses” and “attorney fees” as distinct. This court has previously held:
It is undoubtedly true that an attorney, by virtue of his employment, has implied authority to incur such expenses as may be reasonable, proper, and necessary to the conduct of his client‘s business; and if the attorney advances money for such costs, he is entitled to be reimbursed therefor, separately and apart from his fee for services.
Skeen v. Peterson, 113 Utah 483, 494, 196 P.2d 708, 713 (1948) (emphasis added); see also Cabrera v. Cottrell, 694 P.2d 622, 624 (Utah 1985) (refusing to allow an award of attorney fees or expenses); Howe v. Professional Manivest, Inc., 829 P.2d 160, 165 (Utah Ct.App.) (concluding that “[Utah Rule of Civil Procedure] 54(d)(2) does nоt apply to expenses or attorney fees” (emphasis added)), cert. denied, 843 P.2d 1042 (Utah 1992).
The majority reasons that if attorney fees are not included, the available award of expenses would be limited to costs of a mere ten dollars and that would be inconsistent with the legislative history. However, either now or in the future, other recoverable expenses may be incurred in bringing an action under the act. Rather than strain the meaning of “expenses” to include attorney fees, it seems better policy to award attorney fees only when so specified by the legislature, court rule, or private agreement.
Lastly, to rule that courts can award attorney fees when not specifically authorized by statute, rule, or contract would allow for the award of attorney fees whenever a statute or contract provides for one side to рay expenses, even when such attorney fees were not contemplated. The majority opinion sets a dangerous precedent in this regard. Therefore, I do not join in the majority‘s opinion that the term “expenses” as used in
However, I dissent from the majority‘s opinion that court costs are likewise not awardable.
Any business establishment or place of public accommodation or enterprises regulated by the state charged with maintaining a public nuisance in violation of this act, which is determined or found not to be in violation of this act, may be awarded all actual and necessary expenses incurred in defending such action, as determined and approved by the court having jurisdiction of the matter.
HOWE, J., concurs in the concurring and dissenting opinion of RUSSON, J.
Notes
All persons within the jurisdiction of this state are free and equal and are entitled to full and equal acсommodations, advantages, facilities, privileges, goods and services in all business establishments and in all places of public accommodation, and by all enterprises regulated by the state of every kind whatsoever, without discrimination on the basis of race, color, sex, religion, ancestry or national origin. Nothing in this act shall be construed to deny any person the right to regulate the operation of a business establishment or place of public accommodation or an enterprise regulated by the state in a manner which applies uniformly to all persons without regard to race, color, sex, religion, ancestry, or national origin; or to deny any religious organization the right to regulate the operation and procedures of its establishments.
Id. at 258, 94 S.Ct. at 2840 (footnote omitted). Under our construction of the Act, NAC‘s constitutional right to exercise editorial discretion over content simply does not conflict with the individual rights granted by the Act.A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.
Any business establishment or place of public accommodation or enterprise regulated by the state in which a violation of the rights provided in Section 13-7-3 of this act occurs is a public nuisance. The operator of any such business establishment or place of public accommodation or enterprise regulated by the state shall be deemed guilty of maintaining a public nuisance and may be enjoined as hereinafter provided.
(a) Upon application to the attorney general by any person denied the rights guaranteed by Section 13-7-3, the attorney general shall investigate and seek to conciliate the matter.
(b) An action to enjoin any nuisance defined in this section may be brought in the name of the state of Utah by the attorney general. Upon the trial of the cause, on finding that the material allegations of the complaint are true, the court shall order such nuisance to be abated, and enjoin all persons from maintaining or permitting such nuisance. When any injunction as herein provided has been granted it shall be binding upon the defendant and shall act as an injunction in personam against the defendant throughout the state.
(c) Any person who is denied the rights provided for in Section 13-7-3 shall have a civil action for damages and any other remedy available in law or equity against any person who denies him the rights provided for in Section 13-7-3 or who aids, incites or conspires to bring about such denial.
(d) Any business establishment or place of public accommodation or enterprises regulated by the state charged with maintaining a public nuisance in violation of this act, which is determined or found not to be in violation of this act, may be awarded all actual and necessary expenses incurred in defending such action, as determined and approved by the court having jurisdiction of the matter.