May 30, 2000
State Human Relations Commission
820 North French Street, 4th Floor
Wilmington, DE 19801
Re: State of Delaware as a Party to an Equal Accommodation Complaint
Dear Commissioner Horowitz:
You have asked whether a state agency may be a party to a complaint initiated pursuant to the Delaware Equal Accommodations Law, 6 Del. C.§§ 4500-4512. We conclude that neither the State nor State agencies are proper parties to an equal accommodation complaint under Delaware law, as the statutes are currently written, for the reasons expressed below. We observe, however, that other states have written their public accommodations statutes to include specifically State agencies and facilities.(1) Accordingly, we are forwarding a copy of this opinion to the Office of the Governor to pursue legislative changes necessary to include specifically the State and its agencies within the equal accommodations law.
The prohibition of discrimination found in 6 Del. C.§ 4504 provides that:
No person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, shall directly or indirectly refuse, withhold from or deny to any person, on account of race, age, marital status, creed, color, sex, handicap or national origin, any of the accommodations, facilities, advantages or privileges thereof. (Emphasis added)
While the term "person" is not defined in the chapter, it is defined in 1 Del C. § 302(16) as:
"Person" and "whoever" respectively include corporations, companies,
associations, firms, partnerships, societies and joint-stock companies,
as well as individuals.
This definition controls "unless such construction would be inconsistent with the manifest intent of the General Assembly, or repugnant to the Code or to the context of the same statute."
1 Del. C. §301. Because the State is not mentioned in the definitions or other provisions of Title 6, Chapter 45, there is no manifest intent that the General Assembly intended to include the State in the definition of person under the equal accommodations law.(2)
The purpose of interpreting a statute is "to ascertain and to give effect to the intent of the legislature." Hudson Farms, Inc. v. McGrellis, Del.Supr., 620 A.2d 215, 217 (1993). The statutory construction principle of expressio unius est exclusio alterius means that the expression of one thing is the exclusion of another. Hickman v. Wortman, Del. Supr., 450 A.2d 388, 391(1982). Using this principle of statutory construction to interpret the definition of family in 10 Del. C. § 901(9), the Delaware Supreme Court limited the definition to the relationships specifically identified in the statute. Walt v. State, Del.Supr., 727 A.2d 836, 840 (1999).
Similarly, the definition of "person" in 1 Del. C. § 302(16) does not include the State. Moreover, the State is specifically and separately defined in Title 1 as the State of Delaware. 1 Del. C. § 302(18). Since the State is excluded from the definition of "person" and is, in fact, separately defined as the State of Delaware, it is not a person, applying the statutory construction principle of expressio unius est exclusio alterius. Because the State is not a person, it is not a party subject to 6 Del. C. § 4504.
Further, the State is immune from suit absent its express consent. Del. Const. Art. I, Sec. 9. A waiver of sovereign immunity by the State requires a clear and specific act of the General Assembly. Turnbull v. Fink, et al., Del.Supr., 668 A.2d 1370 (1994). In Turnbull, the General Assembly expressly waived sovereign immunity by enacting a statutory scheme which permitted suit against the Delaware Transit Corporation for damages up to a $300,000.00 limitation. Conversely, there is no clear and express waiver of sovereign immunity under section 4504.
The purpose of the chapter is to prevent discrimination in places of public accommodation. 6 Del. C. §4501. Government agencies are not places of public accommodation under the statute.
As used in Chapter 45, "place of public accommodation" means:
any establishment which caters to or offers
goods or services or facilities to, or solicits patronage from, the general
public. This definition shall apply to hotels and motels catering to the
transient public, but it shall not apply to the sale or rental of houses,
housing units, apartments, rooming houses or other dwellings, nor to tourist
homes with less that 10 rental units catering to the transient public.
6 Del. C. §4502(1)
The law in Delaware is very similar to its counterpart in New Mexico which states:
It is an unlawful discriminatory practice for:
(F) any person in any public accommodation
to make a distinction, directly or indirectly, in offering or refusing
to offer its services, facilities, accommodations or goods to any individual
because of race... s 28-1-7(F), N.M.S.A. 1978
"Public accommodation" means any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment which is by its nature and use distinctly private.
s 28-1-2(G),N.M.S.A. 1978
In the absence of Delaware case law, this similarity in the respective statutes enables the Delaware State Human Relations Commission to rely on the interpretations by the New Mexico courts.(3) The New Mexico Supreme Court has noted that " [n]o case has been cited to support the proposition that a university is a public accommodation unless they were specifically included by statute." Human Rights Commission of New Mexico v. Board of Regents, N.M. Supr., 624 P.2d 518, 520 (1981). That court further found that "[b]ased on the facts of this case," the University was "not a 'public accommodation' within the meaning of the New Mexico Human Rights Act §28-1-2(G), N.M.S.A. 1978, and is therefore not subject to the jurisdiction of the Human Rights Commission in this instance." supra at 519. The Court observed that under a different set of facts, the University may be a "public accommodation" subject to the jurisdiction of the Commission.(4)
In contrast to the Delaware and New Mexico laws, Article 3 of the Civil Rights Act of Michigan states:
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of the goods, services facilities,
privileges, advantages, or accommodations of a place of public accommodation or
or public service because of religion, race, color, national origin, age, sex, or marital status. (Emphasis added) MCL 37.2302(a) MSA 3.548(302)(a)
The applicable statutory definitions expressly include educational institutions and government agencies within the jurisdiction of the law:
(a) "Place of public accommodation" means
a business, or an educational, refreshment, entertainment, recreation,
health or transportation facility, or institution of any kind, whether
licensed or not, whose goods, services, facilities, privileges, advantages,
or accommodations are extended, offered, sold, or otherwise made available
to the public...
(b) "Public service" means a public facility,
department, agency, board, or commission, owned operated, or managed by
or on behalf of the state, a political subdivision, or an agency thereof,
or a tax exempt private agency established to provide service to the public.
MCL 37.2301; MSA 3.548(301)
Interpreting these provisions in Neal v. Department of Corrections, et al. 1998 WL 704168(Mich. App.) aff'd sub nom. Doe and Roe v. Department of Corrections, 2000 WL 253625 (Mich. App.), the court found the provisions, which include the state within public service, applicable to prisoners and prisons.
If the General Assembly enacted legislation making the State amenable to suit under 6 Del.C. Chapter 45, a complaint would necessarily allege facts to support a conclusion that the matter in dispute was one relating to the role of the state or agency in providing a public accommodation. In 1972 Kansas waived sovereign immunity when it amended its equal accommodation statute:
The term "unlawful discriminatory practice"
also means any discrimination against persons in the full and equal use
and enjoyment of the services, facilities, privileges and advantages of
any institution, department or agency of the state of Kansas or any political
subdivision or municipality thereof. Kansas Commission on Civil Rights
v. Topeka Unified School District No. 501, Kan. Supr., 755 P.2d 539
Despite the waiver of sovereign immunity,
the Kansas Supreme Court found the reasoning in
Human rights Com'n of N.M. v. Bd of Regents, supra, persuasive and concluded that a school was not a public accommodation under the law. Further, a regulation by the Commission purporting to cover student admissions was void because it exceeded authority of the Commission. Kansas Commission on Civil Rights v. Topeka Unified School District No. 501, at p. 544.
To summarize, we conclude that the State and its agencies are not subject to the Delaware Equal Accommodations Law because the State is not a person under the applicable statutes. Since there is no express waiver in the equal accommodations law, the doctrine of sovereign immunity precludes a suit against the State or its agencies. Although the State is not subject to 6 Del. C. Chapter 45, nothing stated herein is intended to discourage the Commission from utilizing the authority in 31 Del. C. §3004 to reach an amicable resolution of a dispute when the State or an agency is involved.
Notwithstanding our conclusion that the State and its agencies are not subject to the Delaware Equal Accommodations Law, we recognize that other states are expressly included in their respective equal accommodations statutes. Therefore, we refer this opinion to the Office of the Governor for consideration of the policy issues involved and offer our assistance in drafting any remedial legislation that may be necessary.
If you have any further questions concerning these matters, please contact our office.
Very truly yours,
Sherry V. Hoffman
Deputy Attorney General
Lawrence W. Lewis
Government Services Group Leader
Michael J. Rich
cc: The Honorable M. Jane Brady
Thomas P. McGonigle
Counsel to the Governor
Philip G. Johnson
1. See, e.g. Iowa Code § 216.2(12) (public accommodations include State or local government units that offer goods, services, or facilities); 6 N.Y. Civ. Rts. § 47(2) (public accommodations include buildings maintained by the State or any subdivision thereof); and W.Va. Code 5-11-3(i) (public accommodations include the State or any subdivision thereof that offers services, goods, or facilities to the general public).
2. The court construed the term "person" to include the state and its agencies in Indiana State Highway Comm'n v. Indiana Civil Rights Comm'n, Ct. App., 424 N. E.2d 1024 (1981) finding ambiguity in the Chapter which included the State in the definition of employer. No such ambiguity exists in 6 Del. C. ch. 45.
3. In Hallager v. Delaware Technical & Community College, Case no. NC-PA-312-95, the Commission determined that Delaware Technical & Community College (DelTech) was not a place of public accommodation. A student alleged in her complaint that she was treated differently than white nursing students with regard to assignments, instruction, and grading. The Commission specifically found that DelTech is not a place of public accommodation with regard to its academic program. Similarly, in Maichle v. Appoquinimink School Dist., Case No. NC-PA-439-98, the Commission considered a complaint about school locker placement filed by disabled student. The panel concluded that the locker assignment was within the scope of the academic program and not within the jurisdiction of the Commission.
4. Although the Delaware Court of Chancery dismissed
a petition by the University of Delaware for declaratory judgment to determine
the jurisdiction of the State Human Relations Commission, the court suggested
"the issue of whether the University is a 'place of public accommodation'
may well be materially affected by the specific facts underlying the particular
dispute before the Commission." University of Delaware v. State of Delaware,
Division of Human Relations and Sundaraj, 1898 WL 51682 (Del. Ch.)
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