MONTPELIER, Vt. (AP) – An Elks Lodge found to have discriminated against women asked Vermont’s highest court Wednesday for a new trial, saying a judge’s rulings led to a “miscarriage of justice” that has left it wrongly branded as being anti-women.
Its lawyer told the Vermont Supreme Court that an accountant who testified about the finances of Elks Lodge No. 1541, of Hartford, wasn’t represented as an expert witness in the 2005 trial and that evidence supporting the lodge’s contention that it harbored no animosity toward women was wrongly barred from the jury.
The appeal marks the latest chapter in a saga that began in 1996, when seven women who applied for membership to the lodge – which was then all male – were rejected.
“I’m wondering if I’ll still be alive when it’s all settled,” said Marilyn McMillan, 74, of Hartford, who was one of them.
In 1995, the national Elks organization abolished the all-male requirement in its membership policy, which until then restricted it to men 21 or older who were U.S. citizens, believed in God and were of good character.
The Hartford Lodge contended that the women were rebuffed for reasons other than gender. Four of them – joined by the Vermont Human Rights Commission – sued under the state’s public accommodations act.
After a five-day trial in April 2005, a jury found that the lodge had violated state law by discriminating against the women because of their gender, awarding each $5,000 in punitive damages and $1 in compensatory damages and ordering the lodge to pay $5,000 to the Human Rights Commission.
The Elks Lodge filed its notice of appeal later that year, but didn’t get its day before the justices until Wednesday.
Lawyer Norman Watts told the panel that certified public accountant Jeff Fothergill was allowed to testify as a “summary witness” for the plaintiffs instead of as an expert witness and that he gave opinions about the significance of financial information included on the lodge’s tax returns, which Watts said was improper.
The resulting testimony “overwhelmed”‘ jurors, distracting them from the central issue in the case, which was membership requirements, according to Watts.
In addition, Judge Christina Reiss’ decision to bar testimony about the lodge’s admission of other women who applied for membership after the seven were rejected prejudiced the jury “by leaving the distinct and false impression that appellant was rigidly prejudiced against females and unwilling to conform to the new rule,” Watts said in a brief filed with the court.
“They welcome females into the organization,” said Watts.
Three of the plaintiffs were admitted by the time the trial started, he said. But some still think it was gender that kept them out.
“The idea that these women were unfit for membership, it’s just a smokescreen,” said Ethan Shaw, a lawyer for two of the women.
“To hear (Watts) get up there and argue that again, when it’s been rejected by the jury and it’s been rejected by everybody who’s heard the argument, it doesn’t sit well with the plaintiffs,” he said outside court.
Two of the women who heard Wednesday’s arguments said they oppose a new trial.
“I think most of the men realize that what they did wasn’t necessary and should never have happened,” said McMillan. “They voted against seven of us women and they let one man in the same night.”
Now a member of the lodge, she has yet to attend a meeting.
“Just by going to a meeting, it would be uncomfortable for everybody, “til everything is settled. I figure after everything is settled, I will go,” she said.
Jane Thibodeau, 52, of West Lebanon, N.H., said the 2005 verdict should stand.
“It would be nice to have it over, we could go on with our lives,” said Thibodeau. “What they did to us, they definitely discriminated against us women.”
AP-ES-11-28-07 1907EST
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