Paquette v. Regal Art Press

PAQUETTE_V_REGAL_ART_PRESS.94-151; 163 Vt 610; 656 A.2d 209

[Filed 30-Dec-1994]

                           ENTRY ORDER

                 SUPREME COURT DOCKET NO. 94-151

                       NOVEMBER TERM, 1994


Linda Paquette               }         APPEALED FROM:
                             }
                             }
     v.                      }         Franklin Superior Court
                             }
Regal Art Press, Inc.        }
                             }         DOCKET NO. S173-91Fc


        In the above entitled cause the Clerk will enter:

  Plaintiff appeals from an adverse judgment on the pleadings dismissing her
anti- discrimination claim.  We reverse and remand for further proceedings. 

  In 1990, plaintiff asked defendant, a printer, to print membership cards
for Vermont Catholics for Free Choice.  Defendant, through its owners,
refused to print the membership cards.  Plaintiff filed a complaint in
superior court seeking a declaratory judgment that defendant's refusal to do
business with plaintiff on the grounds of her creed violated 9 V.S.A. 
4502(a) (prohibiting discrimination in places of public accommodation).  She
also sought a preliminary and permanent injunction enjoining defendant from
such refusal.  Defendant answered, disavowing any discriminatory conduct. 
Defendant also raised numerous affirmative defenses, including defendant's
rights to the free exercise of religion, freedom of association and free
speech under the First Amendment of United States Constitution. 

  Following discovery, defendant moved for summary judgment.  The court
denied the motion, concluding that defendant's motive remained a genuine
issue of material fact.  Defendant subsequently moved for judgment on the
pleadings, pursuant to V.R.C.P. 12(c).  The court denied the motion, then,
sua sponte, the court reopened defendant's Rule 12(c) motion and requested
further briefing by both parties.  Concluding that enforcing 9 V.S.A.  4502
would burden defendant's First Amendment right to free exercise of its
religion by forcing it to assist in disseminating a message contrary to its
religious beliefs, the court reversed its earlier order, and granted
defendant's motion for judgment on the pleadings.  Plaintiff appeals. 

  A motion for judgment on the pleadings may be granted only when the moving
party is entitled to judgment as a matter of law on the basis of the
pleadings.  Thayer v. Herdt, 155 Vt. 448, 456, 586 A.2d 1122, 1126 (1990).
"`For the purposes of the motion, all well pleaded factual allegations in the
nonmovant's pleadings and all reasonable inferences that can be drawn
therefrom are assumed to be true and all contravening assertions in the
movant's pleadings are taken to be false.'" Id. (quoting Bressler v. Keller,
139 Vt. 401, 403, 429 A.2d 1306, 1307 (1981)).  The court erroneously granted
defendant's motion in favor of its affirmative defense, 

 

because there were no facts properly before the court, pled or admitted, that
would support the court's conclusion as a matter of law. 

  In her complaint, plaintiff alleged that "defendant's refusal to do
business [with] plaintiff violated defendant's obligations to provide
accommodations to the public without regard to the creed of the customer,"
and sought relief on the basis that "defendant has wrongfully refused to do
business with plaintiff on the grounds of plaintiff's creed, in violation of
9 V.S.A.  4502(a)." 

  Plaintiff specifically alleged that: 

     [d]efendant informed plaintiff that it did not agree with plaintiff's
     professed religious beliefs. Defendant further stated that no one
     who claimed to be a Catholic could hold the views espoused by the
     name "Vermont Catholics for Free Choice."  Defendant claimed
     that such religious expressions clashed with the defendant's own
     religious training and beliefs.

  The court misconstrued plaintiff's allegation in favor of defendant by
concluding that printing plaintiff's material would violate defendant's
religious training and beliefs.  Although the court was required to accept as
true that defendant made the statement, it was improper for the court to
accept the substance of defendant's statement as true for purposes of
evaluating defendant's affirmative defense.  Moreover, even if defendant's
assertion had been pled or admitted to by plaintiff, that statement would
have been factually insufficient to support defendant's free exercise claim. 
See State v. Hamlin, 148 Vt. 232, 235, 531 A.2d 598, 599 (1987) (free
exercise claim not reviewable where defendant alleged potential conflict with
his religious beliefs, but has not presented any evidence of sincerity of
religion or manner in which challenged practice violates tenets of his
religion). 

  Reversed and remanded.

----------------------------------------------------------------------------
                               Dissenting


  MORSE, J., dissenting.   I would affirm for the reason expressed by
plaintiff's counsel at oral argument -- disagreement over the issue of
abortion is not protected under the Act. Counsel stated: 

     If Regal Art Press had said at the time, "We decline to print your
     order because we perceive the content of that order to be pro
     abortion, and we are morally or even religiously opposed to
     abortion, therefore we won't print your cards for you," we
     wouldn't be here today.  Plaintiff would not have a complaint, and
     I want to make sure that's clear from the outset.

  The parties here disagreed over the issue of abortion, not Catholicism. 
Defendant did not refuse to print plaintiff's membership cards because she
was Catholic.  Defendant's owners, too, were Catholic.  One Catholic may
disagree with another Catholic's political views and not 

 

offend the Act. Defendant refused to print plaintiff's order because
defendant believed Vermont Catholics for Free Choice was in the business of
promoting abortion. Plaintiff made no allegation that Vermont Catholics for
Free Choice is a religion, or that "free choice" is a religious creed. 
Rather, free (pro) choice is commonly defined as: political support of a
woman's choice whether to abort or continue a pregnancy.  Defendant was
motivated in its conduct toward plaintiff because she was pro choice, pure
and simple.  Had plaintiff wanted membership cards printed on behalf of, say,
"Republicans for Free Choice," would defendant have accommodated her? 

  The facts of this case show the folly that erupts when a political question
is superficially intertwined with a religious label.  I do not believe that
the Legislature intended to extend the protection of 9 V.S.A.  4502 to
political agendas, even if those agendas are pursued by religious groups. 
Vermont Catholics for Free Choice is a political group taking political
action. Consequently, it should garner no greater protection than any other
politically motivated group. 



                           BY THE COURT:



                                 _______________________________________
                                 Frederic W. Allen, Chief Justice

                                 _______________________________________
                                 Ernest W. Gibson III, Associate Justice


                                 _______________________________________
                                 John A. Dooley, Associate Justice


Dissenting:            _________________________________
                       James L. Morse, Associate Justice 

                       _________________________________ 
                       Louis P. Peck, Associate Justice  
                       (Ret.), Specially Assigned