United States v. Armstrong Brief Amicus Curiae

    SUPREME COURT OF THE UNITED STATES
October Term, 1968

IN THE

No. 929

PAUL E. SULLIVAN, ET AL., Petitioners 
v.

LITTLE HUNTING PARK, INC., ET AL.

T. R. FREEMAN, JR., ET AL., Petitioners 
v.

LITTLE HUNTING PARK, INC.. ET AL.

On Writ of Certiorari to the 

Supreme Court of Appeals of Virginia

BRIEF FOR THE RESPONDENTS

Gerald M. O’Donnell 
100 South Royal Street 
Alexandria, Virginia 22314 
Of Counsel

John Chas. Harris 
1500 Belle View Boulevard 
Alexandria, Virginia 22307 
Attorney for Respondents



INDEX

Questions Presented__________________________________ 1

Little Hunting Park, Ine--------------------------------------------  1

Parties______________________________________________ 3

A Federal Question?_________________________________ 4

The Question Is Moot_______________________________  11

The First Amendment, Fourteenth Amendment and
The Civil Rights Act of 1866 — Sullivan---------------  14

The Thirteenth Amendment, Fourteenth Amendment
and The Civil Rights Act of 1866 — Freeman-------  19

Conclusion__________________________________________  24

CITATIONS
Amalgamated Ass’n, etc. v. Wisconsin Employment

Relations Board, 340 U.S. 416, 71 S.Ct. 375------------  11

Ashwander v. Tennessee Valley Authority, 297 U.S.
288, 56 S.Ct. 466, 80 L. Ed. 688_________________  16

Bacigalupo v. Fleming, 199 Va. 827, 102 S.E. 2d 321— 8

Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031--------- 16

Cook v. Holsum Bakeries, Inc., 207 Va. 815,
153 S.E. 2d 209__________________________________ 8

Curtis Publishing Co. v. Butts, 388 U.S. 130__________ 21

Daniel v. Paul, 37 U.S.L. Week 4481, 4482---------------  4

Dixon v. Duffey, 342 U.S. 33, 72 S.Ct. 1073__________  6
I



Doremus v. Board of Education, 342 U.S. 429,
72 S.Ct. 394______________________________________  11

Douglas v. State of Alabama,
380 U.S. 415, 85 S.Ct. 1072______________________  6

Ex Parte Baez, 177 U.S. 378, 20 S.Ct. 673___________  11

Herb v. Pitcairn, 324 U.S. 118, 65 S.Ct. 459_________ 5

Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct.
2186, 20 L. Ed. 2d 1189____________ 10, 12, 20, 22, 23

McKnett v. St. Louis & S.F.R. Co., 292 U.S. 230,
54 S.Ct. 690, 78 L. Ed. 1227_____________________  6

Monroe v. Pate, 365 U.S. 167, 81 S.Ct. 473---------------  13

NAACP v. State of Alabama, 357 U.S. 449,
78 S.Ct. 1163_____________________________________  6

Nichol v. Cole, 256 U.S. 222, 41 S.Ct. 467____________  9

Ocean Accident Corp. v. Haley, 158 Va. 691,
164 S.E. 538____________________________________  8

Snead v. Commonwealth, 200 Ya. 850,
108 S.E. 2d 399________________________________8, 10

Sullivan v. Little Hunting Park, Inc., 392 U.S. 657-----  10

United States v. Alaska S.S. Co. 253, U.S. 113,
40 S.Ct. 448_____________________________________ 11

Wolfe v. State of North Carolina, 364 U.S. 177,
80 S.Ct. 1482____________________________________ 9

Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073-----------------  6

II



STATUTORY AND CONSTITUTIONAL

First Amendment, United States Constitution____4, 14, 16

Thirteenth Amendment, United States Constitution_____ 3

Fourteenth Amendment, United States Constitution____3, 4

Civil Rights Act of 1866, 42 U.S.C.
§1981, 1982_________________________ 3, 4, 12, 19, 21

Civil Rights Act of 1964, 42 U.S.C.
§2000 et seq________________________________ 4, 13, 21

28 U.S.C. 1257(3)_____ _ ______________ ___________ _ 5

42 U.S.C. §1983_____________________________________ 12

Constitution of Virginia §88_________________________  6

Code of Virginia, 1919, §6252________________________  8

Code of Virginia, 1950, §8-1.1_______________________  7

Rules of Court, Supreme Court of Virginia,
Rule 5:1 §3(f ) ____________________________ 5, 7, 8, 10

6 AmJur 2d Associations and Clubs §18__________13, 22

7 C.J.S. Associations §23, page 56________________ 13, 20

MISCELLANEOUS
Webster’s New Collegiate Dictionary, Second Edition__  14

Congressional Globe Vol. 71, pps 522, et seq_________  23
III



IN THE

SUPREME COURT OF THE UNITED STATES
October Term, 1968

No. 929

PAUL E. SULLIVAN, ET AL., Petitioners
v.

LITTLE HUNTING PARK, INC., ET AL.

T. R. FREEMAN, JR., ET AL., Petitioners
v.

LITTLE HUNTING PARK, INC., ET AL.

On Writ of Certiorari to the 

Supreme Court of Appeals of Virginia

BRIEF FOR THE RESPONDENTS

IV



QUESTIONS PRESENTED
1. Whether the Virginia Supreme Court of Appeals 

has the right to establish reasonable rules of procedure, 
indiscriminately applied, for the perfecting of appeals 
before that court.

2. Whether this Court will entertain a “ moot” 
question when the opinion cannot effect the rights of 
the litigant.

3. Whether two litigants may combine their appeals 
before this Court to enable one litigant to rely on the 
statute available to the other.

4. Whether 42 U S C § 1981, 1982, guarantees to 
a member of the negro race the right to membership 
in a private social club.

5. Whether the First and Fourteenth Amendments, 
as they pertain to free speech, apply to directors of a 
private social club if the club performs a function that 
is also performed by the state or a division thereof.

LITTLE HUNTING PARK, INC.
In 1954, when Little Hunting Park was incorporated, 

as a non-stock corporation, the word “ Community” 
appeared in the certificate of incorporation to indicate 
the original intention of the founders that membership 
be limited to the geographical area contiguous to 
the facilities. The by-laws provided for “membership 
certificates” (the same instruments that the petitioners 
elect to call “ shares” in their brief) and membership 
is limited to those who own a membership certificate 
and are approved by the board of directors after 
recommendation by the membership committee. The 
by-laws further provide that the purpose of the corpora­
tion shall be to provide recreation for its members and 
not the public at large nor members of the community.

1



It is usual in the operation of clubs to require an 
initiation fee which is forfeited when membership ceases. 
However, the by-laws and operation of Little Hunting- 
Park provide for a non-forfeiture of this initial payment 
and allows a transfer or assignment of this membership 
certificate representing the initial payment. The assignee 
or purchaser must submit an application to the Board 
of Directors of the club for membership. To become a 
member one must acquire a membership certificate and 
be approved for membership by the Board of Directors. 
A temporary assignment was permitted but the approval 
of the assignee was required by the Board of Directors. 
The approval of the Board of Directors has always been 
required. (A 50)

Although the by-laws provide that membership shall 
be limited to the areas contiguous to the club property 
and “ such other area(s) as may be approved by the 
Board of Directors” , the Board has freely construed this 
provision as to “ such other area(s)” and 117 of approxi­
mately 530 members lived outside the contiguous areas 
(A  163) at the time of the trial.

Since the ownership of a membership certificate 
did not confer membership in the club, the developer 
of the area purchased certificates when the corporation 
was formed. His motive can only be presumed but it 
would follow that possibly he may have decided to assist 
in the formation of the club or to have membership 
certificates in the event a subsequent customer may 
express an interest in the club. A local church purchased 
a certificate to transfer to its minister.

The petitioners realized the prerequisites of mem­
bership and submitted the required request to the Board 
of Directors for approval.

2



The records of the corporation did not disclose those 
instances where applications were denied, therefore, the 
petitioners’ brief states that “ there is no record of any 
assignment ever being denied” . When a witness recalled 
that a membership was denied but could not recall the 
reason, the petitioners brief states “but there is no 
evidence that this wTas other than because of the 
individual failure to satisfy the geographical requirement 
of the by-laws” .

Although it is implied in the brief that the operation 
of Little Hunting Park was strictly a recreation facility, 
one of the petitioners testified to the social activities 
that were carried on by the members (A 228, 229, 230).

Little Hunting Park has all the attributes of a 
voluntary social club. It is voluntary, it has members, 
it is social, it is not open to the public but limited to 
members, dues are assessed and no admission is charged. 
Prospective members must be accepted by the governing 
body, and membership is limited and, it serves no public 
or community purpose for less than 15% of the residents 
of the petitioners’ subdivision were members.

PARTIES
In the trial court, the petitioners Freeman and 

Sullivan maintained separate actions. For the purpose 
of appeal to this Court they consolidated their cases. 
Although they have a common respondent and contend 
that the causes of action arose out of the same set of 
circumstances, the law applicable to each does vary. 
Freeman, who is of the Negro race, relies on the Civil 
Rights Acts of 1866 (42 U.S.C. § 1981 and 1982), as 
well as the Thirteenth and Fourteenth Amendments to 
the United States Constitution. However, since the 
Freemans no longer reside in the United States their

3



claim is limited solely to compensatory and punitive 
damages.

Sullivan, who is of the White race, relies on the 
First and Fourteenth Amendments to the United States 
Constitution, contending that their expulsion from the 
respondent club was because of his dissent from its racial 
policies, and hence their right of free speech was abridged. 
In addition, since his “ speech” concerned the refusal of 
a Negro application to a club, if the Civil Rights Act 
of 1866 is applicable to the Club, then his expulsion from 
membership also falls within the provisions of the Civil 
Rights Act of 1866.

The Civil Rights Act of 1866 supplemented the 
Thirteenth Amendment and applied to members of the 
Negro race. The Thirteenth Amendment abolished invol­
untary servitude. It is not the contention of Sullivan 
that he is of the Negro race; nor does he contend that 
he is one affected by the Thirteenth Amendment.

Although the brief of the petitioners contains a 
statement citing DANIEL v. PAUL, 37 U.S. L. Week 
4481, 4482, (June 2, 1969), which rested on Title II of 
the Civil Rights Act of 1964 (42 U.S.C. § 2000, et seq), 
their “ Questions Presented” does not include a question 
as to the applicability of the public accommodations 
section of that enactment.

It will be necessary to properly apply the law, to 
the two cases, to return to the division that existed in 
the trial court by listing the name of each as a sub­
heading above each division of this brief.

A FEDERAL QUESTION 
Sullivan and Freeman

The Petitioners base the jurisdiction of this appeal
4



on 28 U.S.C. 1257(3) which authorizes the review of 
this Court of the final judgment of the highest court 
of a state:

By writ of certiorari, where the validity of a 
treaty or statute of the United States is drawn 
into question on the ground of its being repug­
nant to the Constitution, treaties or laws of 
the United States, or where any title, right, 
privilege or immunity is specially set up or 
claimed under the Constitution, treaties or 
statutes of, or commission held or authority 
exercised under, the United States.

The Virginia Supreme Court of Appeals rejected 
the petition and refused the appeal of the petitioners 
since the appeal was not perfected in the manner 
provided by law in that opposing counsel was not given 
a reasonable written notice of the time and place of 
tendering the transcript and a reasonable opportunity to 
examine the original or a true copy of it pursuant to 
Rule 5:1 § 3( f )  of the Rules of the Supreme Court 
of Appeals of Virginia.

HERB v. PITCAIRN, 324 U.S. 118, 65 S.Ct. 459, 
involved a question of procedure in the state court. 
The highest court of Illinois held that suit under Federal 
Employers’ Liability Act should not have been filed in a 
city court when the injuries were sustained outside the 
territorial limits of the city. The matter was continued 
for a determination as to whether the decision of that 
court was based on state procedure or a federal question. 
The case is of interest because of the restatement of this 
Court’s position on the review of a state court’s decision 
based on state grounds.

At 324 U.S. 126, Justice Jackson stated:
5



This court from the time of its foundation has 
adhered to the principle that it will not review 
judgments of state courts that rest on adequate 
and independent state grounds, (citations) The 
reason is so obvious that it has rarely been 
thought to warrant statement. It is found in 
the partitionery of power between the state and 
federal judicial systems and in the limitations 
of our own jurisdiction. Our only power over 
state judgments is to corrcet them to the extent 
that they incorrectly adjudge federal rights.

Speaking of the right of a state court to determine 
procedure, at page 123 the opinion stated:

The freedom of the state courts so to decide is, 
of course, subject to the qualification that the 
course of action must not be discriminated 
against because it is a federal one. McKNETT 
v. ST. LOUIS & S.F.R. Co., 292 U.S. 230, 54 
S.Ct. 690, 78 L. Ed. 1227. But we cannot say 
the court below, in so far as it did hold the 
city courts without power, construed the state 
jurisdiction and venue laws in a discriminatory 
fashion. DIXON v. DUFFY 342 U.S. 33, 72 
S.Ct. 10; YOUNG v. RAGEN  337 U.S. 235, 
69 S.Ct. 1073.

The state court cannot develop a novel procedure to 
dispose of a federal question. NAACP v. STATE OF 
ALABAMA, 357 U.S. 449, 78 S.Ct. 1163. Nor can a 
state develop procedural bars to the assertion of a federal 
question. DOUGLAS v. STATE OF ALABAMA  380 
U.S. 415, 85 S.Ct. 1072.

The Constitution of Virginia § 88, in providing for 
the composition and jurisdiction of the Supreme Court

6



of Appeals provides, in part, as follows:
Subject to such reasonable rules as may be 
prescribed by law as to the course of appeals, 
the limitation as to the time, the value, amount 
or subject matter involved, the security required, 
if any, the granting or refusing of appeals, and 
the procedure therein, it shall, by virtue of this 
Constitution, have appellate jurisdiction in cases 
involving the constitutionality of a law as being 
repugnant to the Constitution of this State or 
of the United States, or involving the life or 
liberty of any person; and in such other cases 
as may be prescribed by law.

Section 8-1.1 of the Code of Virginia 1950 empowers 
the Supreme Court of Appeals to “prescribe the forms 
of writs and make general regulations for the practice 
of all courts of record, civil and criminal; and may 
prepare a system of rules of practice and a system of 
pleading and the forms of process to be used in all courts 
of record of the state, and put the same into effect” .

Pursuant to the above statute, the Supreme Court 
of Appeals promulgated Rules of Supreme Court of 
Appeals of Virginia, and under its section on appellate 
proceedings, there is Rule 5:1 § 3( f)  which provides:

Such a transcript or statement not signed by 
counsel for all parties becomes part of the record 
when delivered to the clerk, if it is tendered to 
the judge within 60 days and signed at the end 
by him within 70 days after final judgment. 
It shall forthwith be delivered to the clerk who 
shall certify on it the date he receives it. 
Counsel tendering the transcript or statement 
shall give counsel reasonable written notice of 
the time and place of tendering it and a reason­

7



able opportunity to examine the original or a 
true copy of it. (Italics supplied)

The Supreme Court of Appeals of Virginia has 
interpreted this rule on many occasions. The case of 
SNEAD v. COMMONWEALTH, 200 Va 850, 108 S.E. 
2d 399, decided in 1959, stated:

The plain language of the Rule requires counsel 
to give opposing counsel reasonable written 
notice of the time and place of tendering the 
transcript or narrative of the evidence and to 
give him a reasonable opportunity to examine 
it. The duty rests on counsel to afford the 
reasonable opportunity to examine and not the 
trial judge. (Italics in Decision)

In SNEAD v. COMMONWEALTH, supra, COOK v. 
VIRGINIA HOLSUM BAKERIES, INC., 207 Va 815, 
153 S.E. 2d 209, and BACIGALUPO v. FLEMING, 199 
Va 827, 102 S.E. 2d 321, prior notice was given to 
opposing counsel and the court was to determine whether 
the notice and opportunty to examine was reasonable 
under the Rule.

Counsel for the petitioners served written notice on 
Counsel for respondents by a letter dated Friday, June 9, 
1967, that on that same afternoon he would deliver the 
transcript to the trial judge. In the usual course of 
mail delivery, the notice was received by counsel for 
respondents on the next business day, Monday, June 12, 
1967. The “ reasonable” written notice required by the 
rule was given to opposing counsel three days after the 
tender of the transcript to the trial judge.

Rule 5 :1  § 3 ( f ) contains language similar to 
that used in §6252 of the Code of Virginia, 1919. In 
construing this section, the Virginia court in OCEAN

8



ACCIDENT CORP. v. HALEY 158 Va 691, 164 S.E. 
538, held:

“ That the provision of the statute is mandatory, 
and that the notice was not reasonable within 
the plain meaning of its terms, which are 
jurisdictional” .

The holding of the Supreme Court of Appeals of 
Virginia has been consistent with all past interpretations 
of its rule. Its ruling, in this case, was limited to the 
state question of procedure.

WOLFE v. STATE OF NORTH CAROLINA, 364 
U.S. 177, 80 S.Ct. 1482, involved the procedure used by 
the Supreme Court of North Carolina in dismissing an 
appeal of a trespass conviction. Citing N1CHOL v. 
COLE, 256 U.S. 222, 41 S.Ct. 467, Justice Stewart 
stated:

When as here there can be no pretense that the 
(state) court adopted its view in order to evade 
a constitutional issue, and the case has been 
decided upon grounds that have no relation to 
any federal question, this Court accepts the 
decision whether right or wrong.

In upholding the decision of the North Carolina 
Court, this Court held:

The North Carolina Supreme Court did not 
decide this asserted federal question. We have 
found that it did not do so because of the 
requirement of rules of state procedural law 
within the Constitutional power of the States 
to define, and here clearly delineated and even- 
handedly applied. We have no choice but to 
determine that this appeal must be dismissed 
because no federal question is before us. That

9



determination is required by principles of judi­
cial administration long settled in this Court, 
principles applicable alike to all litigants, 
irrespective of their race, color, politics, or 
religion.

It is contended by the petitioners that the remand 
to the Supreme Court of Appeals of Virginia (392 U.S. 
657) “ impliedly” held that the non-federal ground on 
which the Virginia Court rejected the original appeals 
was inadequate The remand was “ for further consider­
ation in light of JONES v. ALFRED H. MAYER Co. 
392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed. 2d 1189” . There 
was no determination actually or impliedly on the non- 
federal ground and, after the Virginia Court differ­
entiated between the two cases, held that it had no 
jurisdiction under its rules of procedure.

The petitioners further contend that the dismissal 
of the appeal by the Virginia Court was arbitrary and 
unreasonable and that they fully complied with Rule 5:1 
§ 3 ( f ) .  To sustain their contention that the court was 
arbitrary and “ ignored its own precedents” , they tried 
to ignore SNEAD v. COMMONWEALTH, supra, by 
hiding it in a footnote on page 21 of their brief.

Compliance with Rule 5:1 §3(f)  requires reasonable 
written notice of the tendering of the transcript and a 
reasonable opportunity to examine the original or a true 
copy. The written notice was received three days after 
the presentation to the trial judge and a copy of the 
extensive transcript, fraught with errors, was given to 
counsel for the respondents, seven days after notice, in 
the Courthouse at 1 :20 P.M. on a Friday afternoon, to 
be returned to counsel for petitioners on the following 
Monday at 6:30 P.M. Counsel for respondents had one 
working day plus two hours to examine and correct the

10



testimony at four days of trial. However, the require­
ments of notice and an opportunity to examine are 
conjoined and not in the alternative.

THE QUESTION IS MOOT 
Freeman

DOREMUS v. BOARD OF EDUCATION, 342 U.S. 
429, 72 S.Ct. 394, was a suit by a taxpayer and the father 
of a seventeen-year-old child to contest a New Jersey 
statute requiring the reading of the New Testament in 
the schools. When the matter reached this Court the 
girl had been graduated and the Court held:

Obviously no decision we could render would 
protect any rights she may have once had, and 
this court does not sit to decide arguments that 
have been put to rest.

EX PARTE BAEZ, 177 U.S. 378, 20 S.Ct. 673, 
held:

It is well settled that this court will not proceed 
to adjudication where there is no subject matter 
on which the judgment of the court can operate.

AMALGAMATED ASS’N etc. v. WISCONSIN 
EMPLOYMENT RELATIONS BOARD, 340 U.S. 416, 
71 S.Ct. 375, citing UNITED STATES v. ALASKA S.S. 
CO., 253 U.S. 113, 40 S.Ct. 448, held:

A Federal Court is without power to decide 
moot questions or give advisory opinions which 
cannot effect the rights of the litigants in the 
case before it.

The Petitioner Freeman, having left the United 
States, is no longer interested in the use of the facilities 
of the respondent Club but seeks only compensatory and

11



punitive damages under the Civil Rights Act of 1866.
But, does the Civil Rights Act of 1866, under which 

he is now proceeding, give him a right to damages for 
the alleged deprivation of civil rights?

At this time, the latest interpretation of the Civil 
Rights Act of 1866 was contained in JONES v. ALFRED 
H. MAYER CO. supra. Speaking for the court, Justice 
Stewart said:

At the offset, it is important to make clear
precisely what this case does not involve...........
It does not deal specifically with discrimination 
in the provision of services or facilities in con­
nection with the sale or rental of a dwelling. . . . 
And although it can be enforced by injunction, 
it contains no provision expressly authorizing a 
federal court to order the payment of damages. 
(Italics supplied)

If a cause of action for damages is available to him 
under civil rights legislation, it would be available under 
42 U.S.C. § 1983 of the law which provides:

Every person who, under color of any statute, 
ordinance, regulation, custom, or usage, of any 
State or Territory, subjects, or causes to be 
subjected, any citizen of the United States or 
other person within the jurisdiction thereof 
to the deprivation of any rights, privileges or 
immunities secured by the Constitution and 
laws, shall be liable to the party injured in an 
action at law, suit in equity, or other proper 
proceedings for redress.

The purpose of the foregoing statute is plain from 
the title of the legislation, “ An Act to enforce the 
Provisions of the Fourteenth Amendment to the Consti­

12



tution of the United States, and for other purposes” . 
17 Stat. 13. MONROE v. PATE, 365 U.S. 167, 81 
S.Ct. 473.

To hold that this statute would apply to individuals, 
not acting under the badge of state authority, would 
make the Fourteenth Amendment and the First Amend­
ment applicable to such individuals and would cause a 
deluge of actions between individuals, not only on the 
basis of civil rights, but on questions of free speech, 
press, religion, etc.

Among the proponents of a cause of action for 
damages under subsequent civil rights legislation, they 
are unanimous that the enactments did not provide a 
right to sue for damages. The remedies provided by the 
Civil Rights Act of 1964 are conciliatory and coercive 
action cannot be taken against violators of that act. 
42 U.S.C. § 2000 e -4(f ) (4 ) .

If an action for damages does not exist by statute, 
there is no legal remedy for exclusion of such an 
individual from admission into a voluntary organization 
no matter how arbitrary or unjust the exclusion. 
6 AmJur 2d, Associations and Clubs §18; 7 C.J.S. 
Associations, §23, page 56.

Sullivan

Sullivan’s constitutional question is derivative from 
Freeman, without Freeman he has no position in this 
Court, unless the First Amendment applies to us all 
and harassment of individuals, under the claim of free 
speech, is not cause for a disassociation of social contact 
with the harasser.

13



THE FIRST AMENDMENT, 
FOURTEENTH AMENDMENT AND 
THE CIVIL RIGHTS ACT OF 1866 

Sullivan
Sullivan first contends that the respondents violated 

his rights under the First Amendment in expelling him 
from membership since his activities were an exercise 
of his free speech.

Realizing that the First Amendment applies to state 
action, his contention is that the operation of Little 
Hunting Park is a public function and as such “ may not 
permissibly condition the use of its property upon the 
forfeiture of an individual’s First Amendment rights” . 
Also, he contends that “by giving sanction to Sullivan’s 
expulsion, the state court deprived Sullivan of his rights, 
guaranteed by the First Amendment, to criticize the 
conduct of the association’s directors, who by virtue of 
holding that position in community life, had become 
“ public figures” .

Despite the operation of the respondent club over 
the years and recognition of the restriction on member­
ship by the petitioners, they rely most strongly on the 
word “ community” used in the Certificate of Incor­
poration as their basis for determining that the club 
operated a public function.

Webster’s New Collegiate Dictionary, Second Edition, 
lists five meanings for the word “ community” :

1. A body of people having common organiza­
tion or interests or living in the same place 
under the same laws ; hence an assemblage 
of animals or plants living in a common 
home under similar conditions.

14



2. Society at large; the people in general, 
restrictedly, the people of a particular 
region, or the region itself.

3. Joint ownership or participation; as, a 
community of goods, community of interests.

4. Common character; likeness.

5. Ecol. An aggregate of organisms............ ..

Webster’s preface tells us that “ the earliest ascer­
tainable meaning is placed first and later meanings are 
placed in the order shown.............. ” .

It is quite apparent that the scrivener of the certi­
ficate of incorporation was not writing on biology and, 
therefore, did not intend to use the fifth meaning. Did 
he intend the second meaning as supposed by the 
petitioners? It is hard to imagine that the word was 
selected to mean that society at large was intended to 
use the facilities, when contemporaneously there was 
drafted by-laws which provided that the facilities were 
intended for the corporation’s members.

A further argument to bring this matter under state 
control, is that since the respondents provide a facility 
that is provided in other jurisdictions by the state, 
therefore, the facility is a public facility and the directors
of the club are “public figures” .

It is hard to imagine any facility that is not provided 
by the state. The state is in the grocery business, through 
commissaries, housing, education, pre-natal care through 
burial. Religion is not exempt, for the “ state” dispenses 
morality through chaplains in the armed services and 
national guard. To carry this argument to an extreme, 
the grocer, landlord, educator, doctor and mortician 
must accept the abuse of every crackpot who disagrees

15



with his ideas or the method of his doing business 
because to preserve his “ right not to listen” would 
abridge the crackpot’s right of free speech.

In pursuing his argument that the state court action 
brings this matter under the First Amendment, he 
contends that “ the trial court invoked a standard of 
state law which had the effect of depriving Sullivan of 
rights protected by the First Amendment” . The respon­
dents did not seek court action, Sullivan brought this 
action to overturn the action of the respondent club in 
expelling him from membership. This puts the state 
court in the position of ruling —  “ It is the opinion of 
the court that the First Amendment does not apply to 
private individuals but if we are to rule that way, since 
we are an arm of the state, the First Amendment would 
then apply to the individuals” .

Failing a standing on his own right before the Court, 
Sullivan then proceeds to exert the constitutional rights 
of Freeman as justificaton for his relief, stating that he 
was punished because he demanded rights for Freeman. 
BARROWS v. JACKSON, 346 U.S. 249, 73 S.Ct. 1031, 
contains the following:

Apart from the jurisdictional requirement, this 
Court has developed a complimentary rule of self 
restraint for its own governance (not always 
clearly distinguished from the constitutional 
limitation) which ordinarily precludes a person 
from challenging the constitutionality of state 
actions by invoking the rights of others. See 
ASHWANDER v. TENNESSEE VALLEY 
AUTHORITY, 297 U.S. 288, 346-348, 56 
S.Ct. 466, 482-483, 80 L.Ed. 688

(concurring opinion).
16



The respondents satisfied the trial judge that there 
was ample evidence to warrant expulsion of Sullivan 
on the basis of the charges made against him. The 
petitioners’ statement that “ The expulsion was unques­
tionably retaliatory” is not contained in any evidence 
before the court.

The petitioners disagree with the learned trial judge 
who found “ ample evidence to justify its conclusion that 
the complainant’s acts were inimicable to the Corpora- 
ton’s members and to the Corporation” . To justify their 
disagreement they state that the allegations against him 
are completely false, or exaggerated and distorted, then 
proceed to justify his reasons for the acts charged by 
the respondents.

The charges against Sullivan by the respondents were 
false because Mr. Sullivan said they were so. For example, 
one of the charges was that he instigated a harassment 
of the board by numerous unfriendly telephone calls. 
He testified that he did not know of any telephone calls 
(hence they were not made) but had asked people to 
write letters. But in answer to the second question 
thereafter he stated that a Mr. Sutherland called. (A  73, 
74)

The purpose of Little Hunting Park was social. 
The members gathered for parties (A 228) in an atmos­
phere of compatibility and fellowship. The disruption 
of this compatibility and fellowship was inimical to the 
corporation and its members.

Sullivan instituted an action in the Circuit Court of 
Fairfax County to postpone the expulsion hearing, 
requesting the right of counsel at the hearing and a bill 
of particulars. (A 70, 71, 82, 83, 84, 85) In open court, 
the parties stipulated that the respondents would post­

17



pone the hearing-, allow counsel of Sullivan’s choosing 
at the hearing and provide him with a list of the charges 
against him. Sullivan stipulated that he would call a 
membership meeting and abide by the decision of the 
membership. (Petitioner’s Brief, page 40).

His request for a membership meeting contained 
three directives to the membership (A 201) and counsel 
for the corporation, in the notice of the meeting, changed 
these directives to questions (A 203). Even though the 
vote was overwhelmingly against him, he has refused, 
and continued to refuse, to adhere to his stipulations 
filed in court.

His brief states on page 40, footnote 29, that “ the 
stipulation was noted by the trial judge, but he specifi­
cally refused to pass on it. It is clear, however, that the
terms of the stipulation were never met..............” The
meeting was held but the agenda was different.

The trial judge did not rule on the stipulations but 
used the following language in his decision letter 
(A  232):

I do not find it necessary to pass on the defense 
a valid compromise and settlement and that 
that the stipulation of July 16, 1965, constituted 
under it the complainant is prevented from 
taking further action, although I am inclined 
to the vieiv that such is the case.

(Italics supplied)

The fact that filing suit by a member of a voluntary 
association may not be grounds for his expulsion is 
granted, but this does not extend to a case where the 
member refuses to abide by the decision rendered in 
the suit.

18



THE THIRTEENTH AMENDMENT,
THE FOURTEENTH AMENDMENT 

AND THE CIVIL RIGHTS ACT OF 1866 
Freeman

In his lease to Freeman, Sullivan included a provision 
to the effect that in addition to the premises, he also 
included his membership certificate in the respondent 
club, Little Hunting Park, Inc. It is basic contract law 
that one cannot bargain away what is not his nor can 
he bind a third party to his contract against the will 
of the party and without his consent.

There is no contention that Little Hunting Park was 
a party to the lease nor is there any contention that 
the parties to the lease did not know that it was necessary 
for the approval of the Board of Directors before the 
membership privileges could be transferred. To the 
contrary, the petitioner Freeman submitted his appli­
cation in writing as required by the by-laws of the 
corporation.

It appears from the manner in which the petitioner’s 
brief is written that the transfer of a membership 
certificate was routine with the transfer of a residence. 
The residence leased to Freeman was in a subdivision 
known as Bucknell Manor which consisted of 800 homes 
of which 115, or roughly 15%, belonged to the respondent 
club. (A 163) Conversely, 85% of the residents of 
this subdivision did not belong to the respondent club. 
The vast majority of the members of the club were 
homeowners and not tenants.

To bring his case within the scope of 42 U.S.C. 
§ 1982, it is Freeman’s contention that the failure of 
the club to admit him to membership, deprived him of 
his right to lease real property “as is enjoyed by white

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citizens thereof” . He requests a privilege that is not 
available to eighty-five percent of his neighbors, white 
and negro.

JONES v. MAYER CO., supra, interpreted § 1982 
to the extent that it was a valid exercise of Congress 
to enforce the Thirteenth Amendment to bar all racial 
discrimination in the sale or rental of property. The 
purpose of the statute was to abolish the Black Codes 
and eliminate the vestiges of slavery. The statute is 
limited to members of the negro race and does not apply 
to discrimination because of creed or national origin. 
The stated purpose of the law is to give all citizens the 
same right as is enjoyed by white citizens.

But does the white citizen have a “ right” to join 
voluntary social organizations? The grant or refusal of 
membership in a voluntary association is a matter within 
the complete control of the organization which has the 
power to enact laws governing the admission of members 
and to place restrictions on the right of admission.
In other words, membership is a privilege......................
7 C.J.S. Associations § 23, page 56.

To make this privilege a matter of right to members 
of the Negro race would give the Negro not the same 
right as is enjoyed by white citizens but a far superior 
right which would be contrary to the wishes of the 
drafters of the legislation and those who truly believe 
in equal rights for the minorities in our midst.

Justice Stewart, in JONES v. MAYER CO., supra, 
states:

Thus, although § 1982 contains none of the 
exemptions that Congress included in the Civil 
Rights Act of 1968, it would be a serious mistake 
to suppose that § 1982 in any way diminishes

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the law recently enacted by Congress.
It would follow that it would also be a serious 

mistake to suppose that §1982 would diminish the Civil 
Rights Act of 1964, 42 U.S.C. 2000, et seq. The actual 
contention of the petitioners is not one of leasing property 
but actually of public accommodations. For in no way 
did the respondents interfere with his rental of property. 
Section 201e of the 1964 Act provides:

The provisions of this title shall not apply to 
a private club or other establishment not in 
fact open to the public, except to the extent 
that the facilties of such establishment are 
made available to the customers or patrons of 
an establishment within the scope of subsection 
(b).

Subsection (b) contains the requirement that law 
applies to certain establishments if its operations affect 
commerce, or if discrimination or segregation by it is 
supported by the State.

There is no contention, by the petitioners, that the 
premises are open to the public or that its operations 
affect commerce. To the contrary, their suit to compel 
admission as members and their contention is that it 
is limited to the “ community” .

They do contend that the directors are “ public 
figures” but from the reading of their brief it would 
appear that this is to place Sullivan under the shelter 
of the First Amendment and in support thereof they 
cite CURTIS PUBLISHING CO. v. BUTTS, 388 U.S. 
130, a libel suit decided on the First Amendment.

The further contention of the petitioners is that 
42 U.S.C. § 1981 giving all persons the same right 
“ to make and enforce contracts” applies to the contract 
or lease executed by Sullivan and Freeman. The purpose

21



of the law’s equality and the word “ same” is used to 
apply to “ all” persons.

If under the same circumstances, Sullivan and 
Freeman were both of the White race, we would probably 
not be before this Court for the simple rule of contracts 
would apply. One of two situations would prevail, either 
Sullivan had informed Freeman that membership was 
subject to the approval of the Board of Directors and 
Freeman took subject to that condition and had no claim 
against Sullivan, or Sullivan did not inform Freeman 
of the contingency and is responsible to Freeman in 
damages.

JONES v. MAYER Co. supra, involved the public 
offering of houses by the respondent. The offer was 
accepted by petitioners and performance was refused by 
the Mayer Company. There is no analogy to the present 
case. The respondent club was not in privity with the 
makers of the lease, had no knowledge of the lease, and 
did not offer to contract with either party nor did they 
accept an offer from either party. The relationship 
between the association and prospective member is one 
of contract and agreement is required by both parties. 
6 Am.Jr. 2d §18.

To carry the petitioners’ argument to a ridiculous 
extreme, Sullivan could have included in his lease the 
use of his neighbor’s lawnmower which is necessary to 
properly maintain the lawn on the premises. If the 
neighbor says “no” is he then violating Freeman’s right 
to contract or to lease property under Sections 1981 and 
1982?

The petitioners place great weight on the desirability 
of a swimming pool in the neighborhood and submitted 
opinions to that effect. (A  253 through 266). The

22



opinions are directed to builders to stimulate the sale of 
their homes. However, the residents of Bucknell Manor 
apparently do not agree with the opinion of the “Practical 
Builder” for less than 15% have joined the respondent 
club. The admonition to the builder in the “Practical 
Builder” is for him to build recreational facilities to 
enable a quicker sale of his houses. The “puffing of 
the wares” of a real estate broker that there is a country 
club or recreational facilities in the area, does not mean 
that the purchaser has the right to such facilities nor 
does it, per se, increase the value of the realty.

JONES v. MAYER, supra, interpreted 42 U.S.C. 
§ 1982 by a reference to the debates of Congress 
(Congressional Globe, Vol. 71, pps. 522 et seq.) to 
determine the intent of the framers. Senator Trumbull, 
the sponsor of the bill, stated:

This bill has nothing to do with political rights 
or “ status” of the parties. It is confined 
exclusively to their civil rights, such rights as 
should appertain to every free man.

On the house side, Representative Wilson, after 
quoting pertinent sections of the bill, then said:

It provides for equality of citizens of the 
United States in the enjoyment of civil rights 
and immunities. What do these terms mean? 
Do they mean that in all things civil, social, 
political, all citizens, without distinction, shall 
be equal? By no means can it be so 
construed................

By no means can § 1982 be construed to regulate 
the social rights of men.

23



CONCLUSION
A decision in this case, favorable to the petitioners, 

would:
1. Take away from the State Court the right to 

fix reasonable rules of procedure for the maturing of 
appeals before that Tribunal.

2. Set a precedent to allow this Court to consider 
questions that are not in controversy and burden the 
Court wth moot matters.

3. Substantially change the existing law of contracts 
to the extent that parties to a contract could bind those 
not in privity, if one of the contracting parties were 
of the Negro race.

4. Substantially hinder the right of association of 
citizens. The argument submitted by the petitioners 
could apply to every country club which, by necessity, 
must serve those in the contiguous community. Incom­
patibility, which is a nebulous reason, could still be a 
reason for exclusion from clubs but when applied to 
a member of the Negro race, it would be presumed 
that race would be the reason for such incompatibility.

5. Be contrary to the intent of Congress, the thirty- 
ninth and the eighty-eighth, which saw fit to exclude 
the respondent from the Civil Rights Act of 1964.

For the foregoing reasons, the Supreme Court of 
Appeals of Virginia should be affirmed and the writ 
dismissed.

Gekald M. O'Donnell 
100 South Royal Street 
Alexandria, Virginia 22314 
Of Counsel

Respectfully submitted, 
John Chas. Harris 
1500 Belle View Boulevard 
Alexandria, Virginia 22307
Attorney for Respondents

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