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Lahmann v. Grand Aerie of Fraternal Order of Eagles10/12/2005
rights: the right of religious freedom guaranteed by Article I, sections 2 and 3, of the Oregon Constitution; the right to "assemb together in a peaceable manner to consult for their common good" guaranteed by section 26; and the right of "expressive association" found in the First Amendment to the United States Constitution. We find neither argument to be persuasive.
II. APPLICABILITY OF THE PUBLIC ACCOMMODATIONS ACT
In their first assignment of error, the Eagles take issue with our conclusion in Lahmann I that an organization that bars women but otherwise has a de facto open membership policy cannot qualify for the act's exemption for distinctly private organizations. The first impediment that argument confronts is the "law of the case" rule. As the Oregon Supreme Court has explained, "when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive * * * upon the appellate court itself in any subsequent appeal * * *." State v. Montez, 324 Or 343, 347, 927 P2d 64 (1996), cert den, 520 US 1233 (1997) (quoting State v. Pratt, 316 Or 561, 569, 853 P2d 827 (1993)). The Eagles acknowledge the general applicability of the rule, but they point out that we have in the past recognized that " he law of the case doctrine is essentially one of judicial economy and judicial discretion," State v. Metz, 162 Or App 448, 454, 986 P2d 714 (1999), rev den, 330 Or 331 (2000), and that the rule "is generally not applied with the same rigor as res judicata," Morley v. Morley, 24 Or App 777, 781, 547 P2d 636 (1976).
Although we may, as the Eagles argue, exercise the discretion to waive a rigid application of the rule when we independently discover (or a party brings to our attention) a persuasive new argument, particularly one based on new information or new developments in the law, this case does not present an appropriate occasion for such a waiver. The Eagles' new arguments are not persuasive.
In their first argument, they contend that our opinion in Lahmann I significantly and prejudicially misconstrues binding precedent. They reason as follows. In Schwenk v. Boy Scouts of America, 275 Or 327, 336, 551 P2d 465 (1976), the Supreme Court held that the Boy Scouts did not qualify as a "public accommodation" under the act. The court reached that decision despite the fact that it knew from the parties' briefs that the organization was open to all male applicants of the appropriate age. Thus, the Eagles conclude, it must be true that an organization with a de facto nonselective membership policy can qualify for the exemption. We therefore erred in Lloyd Lions Club v. Int. Assoc. of Lions Clubs, 81 Or App 151, 157, 724 P2d 877 (1986), rev dismissed, 303 Or 698 (1987), when we held that an organization with a de facto nonselective membership policy cannot be a distinctly private organization for purposes of the act. I
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