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CASE LAW -
Suspension and Expulsion of Members - Due Process
Required. Aluisi v. Fort Washington Golf and Country Club,
395 Daily Journal D.A.R. 9328, Cal.App., July 12, 1995
[originally in Guralnick & Gilliland's Tenth Annual
Legislative Update] (The Court denied review
and ordered the case not to be officially published on September
28, 1995. Therefore, this case may not be cited as authority.)
CASE FACTS
Terry Aluisi had been a member of the Fort Washington Golf
and Country Club since the late 1970s. During his membership,
the Board of Directors of the Club had sent Aluisi three letters
regarding violation of club rules - two letters in 1979 and
one letter in 1980. On October 30, 1990, the women's board
of directors drafted a letter to the board of directors relaying
that it wished "to file a complaint against member Terry
Aluisi for the vulgar, filthy, and demeaning remarks made
in the presence of women members."
The member who complained about Aluisi stated that the women
involved in the incident were afraid of Aluisi and, therefore,
wished to remain anonymous. The board agreed to keep the women's
anonymity. The board notified Aluisi in writing that there
would be a hearing on October 25, 1990 to decide whether to
expel him from the club for his alleged actions during the
incident at issue and for his behavior during previous incidents.
The hearing took place as scheduled. No witnesses were present,
and aside from the original letter of complaint, no other
documents were presented as evidence. At the hearing, Aluisi
denied using "filthy, vulgar language" toward the women players.
He also argued that previous letters of reprimand should not
be considered because the incidents occurred long ago. Aluisi
denied ever threatening anyone and complained that he had
not been given the complainants' names. A board member explained
that their identities were being kept confidential because
they were frightened of him.
The board then went into closed session, and Aluisi was excused.
The board discussed the complaint and several other matters
that had not been disclosed to Aluisi. These included threats
Aluisi had made to assault board member and other members;
that Aluisi had been barred from another club's tournaments
because of embarrassing behavior; that Aluisi's father had
been fired from the sheriff's department for sexual indiscretions;
that Aluisi's father had been indicted for fraud and had spent
time in jail; and that Aluisi and his brother had been involved
in a fist fight on the club grounds. Based on the above, the
current complaint and previous complaints, the board voted
to expel him from the club.
Aluisi sued the club for reinstatement and damages arising
out of the expulsion. The trial court ruled that Aluisi was
deprived of a fair procedure when the board determined to
conceal the identities of two of the witnesses. The court
also found that the board's consideration of matters not documented
in his membership file and of which Aluisi did not have notice
or a chance to respond also deprived him of a fair hearing.
The club appealed. The appellate court upheld the findings
of the trial court. The court stated that the elements of
fair procedure include "an opportunity to confront and cross-examine
the accusers and to examine and refute the evidence". The
court also found that the board's closed-session consideration
of unnoticed and undocumented incidents had deprived Aluisi
of a procedurally fair hearing.
The club argued that the decision of the board to expel Aluisi
should have been reviewed under the business judgment rule.
The court stated that the business judgment rule is not applied
when considering to uphold the actions of a private association
and the issue of due process.
ANALYSIS
The crux of this case was whether or not Aluisi was deprived
of a fair hearing and his due process rights. The Court of
Appeal noted that long-established California Law requires
that a fair procedure must include an opportunity to confront
and cross-examine one's accusers and to examine and refute
evidence.
Furthermore, after Aluisi was excused from the hearing, the
Board considered various unrelated matters and prejudicial
charges that had not brought to Aluisi's attention, either
in the notice of hearing or during the hearing process. Thus,
Aluisi was unable to defend himself against these charges.
The court found that "the cumulative effect of the undocumented
matters was likely to and did affect the decision of the Club
to expel plaintiff and that plaintiff was neither noticed
that these matters would be considered nor given opportunity
to examine the evidence and prepare his defense". The Court
rejected the Board's argument that their discussion of undocumented
matters was harmless because their actual motion to expel
Aluisi was based on the women's board's complaint and prior
complaints.
RECOMMENDATIONS
A private club that holds a hearing to determine whether
or not to expel a member, must provide the aggrieved member
due process, which would include a fair procedural hearing
that: gives notice of ALL matters and incidences to be considered,
allows the member an opportunity to confront the accusers
and allows the member to examine and refute the evidence.
In imposing discipline on a member, a community association
must not only provide the member with date, time and place
of the hearing and the form of discipline contemplated, but
also of the specific allegations against him. It is also imperative
that the complaining member or members be present so that
the accused member has the opportunity to confront them. Finally,
the decision to impose discipline must be based upon the evidence
that was actually presented at the hearing and nothing else.
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