Burton v The Wilmington Parking Authority Memorandum for the US as Amicus Curiae
Public Court Documents
January 1, 1961

13 pages
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Brief Collection, LDF Court Filings. Burton v The Wilmington Parking Authority Memorandum for the US as Amicus Curiae, 1961. 5bae1a2b-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/05f62f54-8c84-4e43-bb64-c149c7000993/burton-v-the-wilmington-parking-authority-memorandum-for-the-us-as-amicus-curiae. Accessed July 09, 2025.
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N o. 164 In t o jftqirMe djjflnrt of tire Unite I $htn October Term, 1960 W illiam H. B urton, appellant v. T he W ilmington P arking A uthority, a B ody Corporate and P olitic op the State op Delaware, and E agle Coffee Shoppe, I nc., a Corporation of the State of Delaware ON APPEAL FROM TEE SUPREME COURT OF THE STATE OF DELAWARE MEMORANDUM EOR THE UNITED STATES AS AMICUS CURIAE J. LEE RANKIN, Solicitor General, HAROLD R. TYLER, JR., Assistant Attorney General, Department of Justice, Washington 25, D,C. J i t t o .Supreme d|miri of t o United states October Term, 1960 No. 161 W illiam H. B urton, appellant v. T he W ilmington P arking A uthority, a B ody Corporate and P olitic or the State of Delaware, and E agle Coffee Shoppe, I nc., a Corporation of the State of Delaware ON APPEAL FROM THE SUPREME COURT OF THE STATE OF DELAWARE MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE This case, we believe, presents issues of broad im portance.* 1 One need not elaborate upon the truism that there is growing participation by governmental agencies—national, state and local—in a host of activ ities designed to promote the public welfare. By the same token, it is a matter of great moment that public funds and property be utilized for the benefit of all citizens, without distinctions based on race, color, creed or other impermissible classification. The Con stitution of the United States requires no less. 1 The background facts are fully stated in appellant’s brief, and we shall not attempt to restate them. ( 1 )580953— 61 2 It is not amiss to point out that the United States is the single greatest landholder in the Nation. Under the Constitution, it may not discriminate. The Fed eral Government accordingly has the duty to insure that properties and facilities which it leases (for example, leases to concessionaires in the national parks) shall be accessible to the general public on a non-discriminatory basis. Corresponding duties rest upon the several states. 1. The Fourteenth Amendment applies to “ State action of every kind, which * * * denies * * * the equal protection of the laws,” Civil Rights Cases, 109 U.S. 3, 11. And there is state action, in the sense of the Fourteenth Amendment, when there is “ state participation through any arrangement, management, funds or property,” Cooper v. Aaron, 358 U.S. 1, 4. And see Shelley v. Kraemer, 334 U.S. 1, 20 ( “ State action * * * refers to exertions of state power in all forms” ). In the instant case, the racial discrimination is by a restaurant located on public land (land purchased with public funds) operating within a public building constructed with public monies. The lease, moreover, makes an indispensable contribution to the support of activities in which the Authority engages elsewhere in the building. No more is required, we submit, to establish that access to the restaurant facility must be accorded without racial discrimination. Indeed, we think it plain that the prohibitions of the Fourteenth Amendment have been held binding in situations where state participation might be deemed less direct and substantial than it is here. 3 In the Girard case, Pennsylvania v. Board of Direc tors of City Trusts, 353 U.S. 230, the discrimination (in that case, against Negro applicants for admission to Girard College) stemmed from the fact that an in dividual had placed limitations upon the use of monies which he had placed in a private trust. A state agency was involved in the matter as trustee, i.e., it was engaged in carrying out the trust in accordance with its terms. This Court nonetheless concluded that the action of the trustee was “discrimination by the State” (353 U.S. at 231). The case thus illus trates the general principle that it is immaterial that the racial discrimination being enforced by a state agency has its origin in purely private action (i.e., that the racial exclusion or discrimination was made in the first instance by an individual or private organ ization) . What is material and decisive, for purposes of the Fourteenth Amendment, is that the state has chosen to place its power behind the discrimination. This it may not do, in any form or through any device. I f a state cannot participate in the administration of a private trust which draws racial distinctions, as the Girard case holds, it follows, we believe, that it cannot lease its own property for a use which will in volve denial of access on the basis of race. This is particularly so where, as in this case, the leased prop erty is integrally related, both physically and by financial ties, to the conduct of other activities in which the public authority is engaged. See infra, pp. 8-10. This Court has also placed sharp limitations upon the use of judicial process to enforce private acts of 4 discrimination. In Shelley v. Kraemer, supra, judi cial enforcement of private racial restrictive covenants by means of injunctions, where the result was to create a condition which could not be established through state legislative action (Buchanan v. Warley, 245 U.S. 60), was held violative of the Fourteenth Amendment. In Barrows v. Jackson, 346 U.S. 249, the rule was ex tended to cover the assessment of damages for breach of such covenants. In Marsh v, Alabama, 326 U.S. 501, this Court ruled that state courts could not ad judge convictions for trespass against persons exer cising their rights of free speech in a privately owned company town. In that context, the “private” action was deemed to be sufficiently infused with governmen tal aspects to be properly attributable to the state. The leasing of state property—particularly where the leased property remains an integral part o f a public facility—certainly presents at least as many indicia of state action as were found in the cited cases. 2. There is also a large body of case law which deals with the precise type of problem presented here, i.e., discrimination by a lessee of public property or facilities. See Muir v. Louisville Park Theatrical Association, 347 U.S. 971, vacating and remanding, 202 F. 2d 275 (C.A. 6) (leased open air theater); Aaron v. Cooper, 261 F. 2d 97 (C.A. 8) (leased school); City of Greensboro v. Simkins, 246 F. 2d 425 (C.A. 4), affirming 149 F. Supp. 562 (M.D.N.C.) (leased golf course); Derrington v. Plummer, 240 F. 2d 922 (C.A. 5), certiorari denied, 353 U.S. 924 (leased cafe teria) ; Coke v. City of Atlanta, 184 F. Supp. 579 (U.D, Ga.) (leased airport restaurant); Jones v. 5 Marva Theatres, 180 F. Supp. 49 (D. Md.) (leased motion picture theatre) ; Tate v. Department of Con servation, 133 F. Supp. 53 (E.D. Va.), affirmed, 231 F. 2d 615 (C.A. 4), certiorari denied, 352 U.S. 838 (leased beach); Nash v. Air Terminal Services, 85 F. Supp. 545 (E.D. Ya.) (leased airport restaurant); Lawrence v. Hancock, 76 F. Supp. 1004 (S.D. W . Ya.) (leased swimming pool).2 Although these deci sions are rested on various grounds—in some, that the lease was a technique of evading state responsibility; in others, that the property, though privately oper ated, was being used for a public purpose—they have been uniform in reaching the conclusion that the dis crimination effectuated by the lessee was constitu tionally forbidden. Herrington v. Plummer, supra, is a case which, on its facts, is close to the one at bar. There, a restau rant was constructed in the basement o f a new court house building. After completion, the space was leased to a private party for operation. Following a refusal of service, several Negroes brought suit to enjoin the County from leasing to any tenant who practiced such discrimination. Sustaining an injunc tion issued by the District Court, the Fifth Circuit held that the action of the lessee was not mere private 2 See, also, City of St. Petersburg v. Alsup, 238 F. 2d 830 (C.A. 5), certiorari denied, 353 U.S. 922, holding that it is irrelevant, for purposes o f the Fourteenth Amendment, whether the state’s activity is “ governmental” or “ proprietary.” 6 conduct, but partook o f state action. The opinion stated (240 F. 2d at 925-926) : Assuming no purpose of discrimination on the part of the County in the renewal of the lease, and further assuming no express reser vation of control by the terms of the lease to prevent discrimination, * * * the basement of the courthouse can by no means be termed surplus property not used nor needed for County purposes. To the contrary, the court house had just been completed, built with public funds for the use o f the citizens generally, and this part of the basement had been planned, equipped and furnished by the County for use as a cafeteria. Without more justification than is shown in this case, no court could countenance the diversion of such property to a purely private use. * * * I f the County had rendered such a serv ice directly, it could not be argued that discrimi nation on account o f race would not be violative of the Fourteenth Amendment. The same re sult inevitably follows when the service is ren dered through the instrumentality of a lessee; and in rendering such service the lessee stands in the place of the County. His conduct is as much state action as would be the conduct o f the County itself. * * * Similarly, in Nash v. Air Terminal Services, Inc., supra, the plaintiff was refused service in a privately run concession at the Washington National Airport. The court found (85 F. Supp. at 549) that the plaintiff had been denied his rights under the Fourteenth Amendment since the restaurant was operated “ too 7 close, in origin and purpose, to the functions of the public government to allow them the right to refuse service without good cause.” And in Coke v. City of Atlanta, Georgia, supra, the court appears to have dis carded the exception suggested in the Derrington opinion, i.e., that property not used or needed for gov ernmental purposes may be operated free of the re strictions of the Fourteenth Amendment. Although it found that property at the Atlanta Airport Ter minal leased as a restaurant was not used or needed for city purposes, the court held (184 F. Supp. at 585) : Under the facts in this case the Court holds that the conduct of Dobbs Houses, Inc. [the les see] is as much state action as would be similar conduct of the City of Atlanta itself and that the discrimination practiced by Dobbs Houses, Inc. in refusing to serve Negroes except upon a segre gated basis is violative of plaintiff’s rights as a Negro citizen under the equal protection pro vision of the Fourteenth Amendment. * * * While the cases involving leases of government property deal with variant factual situations, they have one element in common: all of them involved facilities which, although operated by non-govern mental lessees, were open to the public generally. Under such circumstances at least, where one segment of the general public is singled out and refused serv ice solely because of race or color, “ * * * the right of citizens to use public property without discrimi nation on the ground of race may not be abridged by the mere leasing of the property.” City of Greens boro v. Simkins, 246 F. 2d 425, 426 (C.A. 4). 8 3. The grounds of distinction offered by the opinion below are not, in our view, tenable. These grounds are (a) that the use of public funds to create and op erate the Authority was so slight as not to change the private nature of the enterprise (R. 53), and (b) “ that the establishment of a restaurant in the space occu pied by Eagle is a pure happenstance and was not in tended as a service to the public using the parking facility” (R. 52). A. We believe it unnecessary under the Constitution for a court to determine the precise extent to which the Wilmington Parking Authority is underwritten by public money, for there is no question that the Authority is an agent of the State. The statute creat ing the Authority specifically provides so. 22 Del. 0 .504(a). Even if the amount of public contribution were a material factor, the court below acknowledged that 15 per cent of the costs of constructing the Author ity ’s facility consisted of public monies3 (R. 50, 53). Such a contribution is not de minimis. Moreover, the court below has ignored the fact, manifest in the record, that the City of Wilmington gave the Au thority $1,822,827.69 of public funds and that this sum was used to redeem the Authority’s revenue bonds and to repay its bank loan.4 In addition, it would seem that the funds received by the sale of 3 The court’s calculation was based only upon the $934,000 “ advanced” by the City o f Wilmington (R. 50). 4 The affidavit o f Jay C. Pownall, chairman of the Wilming ton Parking Authority, submitted to the Court o f Chancery and included in the record before the Delaware Supreme Court, attests to the $1,822,827.69 donation by the City o f Wilmington. revenue bonds were as much public funds as the monies donated by the City of Wilmington, The bonds were sold by an agency of the state and were deposited in the treasury of an agency of the state.5 B. The court below also gave great weight to its determination that a restaurant within a pa rking facility is not designed “ for the convenience and serv ice of the public using the parking service. ’ ’ It is not necessary, however, to say that those members o f the public who utilize the parking facilities have need of the restaurant’s services in order to conclude that the operation of the restaurant is integrally related to the public activity which is the primary concern of the Authority.6 It is undisputed that it would not 6 See Tate v. Department of Conservation and- Development^ 133 F. Supp. 53 (E.D. Va.), affirmed, 231 F. 2d 615 (C.A. 4 ), certiorari denied, 352 U.S. 838, and Lawrence v. Hancock, 76 F. Supp. 1004 (S.D. W . Va.) where the facilities involved were constructed by state agencies with funds derived akhQpt entirely from the sale o f public bonds. 6 The public importance o f the Authority’s activities cannot be doubted. The Parking Authority Act o f 1951 (22 Del. O., Ch. 5 )—under which the Wilmington Parking Authority was created—contains a detailed statement o f findings and policy (Sec. 501). This statement emphasizes the urgency o f traffic control and stresses the need to provide adequate parking fa cilities. It states: “ The establishment o f a parking authority will promote the public safety, convenience, and welfare * * * therefore it is declared to be the policy o f this State to promote the safety and welfare of the inhabitants thereof by the creation in in corporated cities o f bodies corporate and politic to be known as “ Parking Authorities * * The 1951 Act also gives the Authority the power to lease where “ such leasing is necessary and feasible for the financing, and operation o f such facilities” (Sec. 504(a)). And see Wilming ton Parking Authority v. Ranhen, 34 Del. Ch. 439, 105 A. 2d 614, holding that the furnishing o f off-street parking is a proper public purpose which meets an existing need. 10 be possible for the Authority to carry out its au thorized public purpose—providing off-street parking facilities—in the absence of revenues from Eagle and other lessees in the building. The opinion below stated (R. 51) that commercial leasing was “ neces sary financially to the project.” And, since the leas ing activity is vital to the functioning of the Author ity, it cannot be heard to assert that it is free to conduct that activity without complying with the constitutional standards applicable to all forms of state action. In Boynton v. Virginia, Ho. 7, this Term, decided December 5, 1960, the Court was also dealing with a restaurant, one which was located in a bus terminal. The Interstate Commerce Act, Part II, regulates carriers only. Moreover, carriers are not required to provide restaurants in their terminals. But the facts of the Boynton case disclosed a close interrelationship between the carrier’s service and the restaurant. The Court concluded that: * * * where circumstances show that the ter minal and restaurant operate as an integral part of the bus carrier’s transportation service for interstate passengers * * * an interstate passenger need not inquire into documents of title or contractual arrangements in order to determine whether he has a right to be served without discrimination. The rationale of the Boynton case, although that decision involved only a statutory problem, is perti nent here. The facts here demonstrate that the Authority’s commercial leases form an “ integral part” of its activity. In these circumstances, the State and 11 its lessee are similarly foreclosed from pursuing a racially discriminatory arrangement. A patron enter ing the public building owned by the Authority and bearing its name has the right, without inquiring into the documents between landlord and tenant, “ to be served without discrimination.” CONCLUSION The judgment of the Supreme Court of Delaware should be reversed. Respectfully submitted. J. L ee R ankin , Solicitor General. H arold R. Tyler, Jr., Assistant Attorney General. J anuary 1961. U s . GOVERNMENT PRINTING O FFI CE : 1981