Newman v. Piggie Park Enterprises Brief for Petitioners

    I n the

Supreme (Cmtrt iif the Hutted States
October T erm, 1967 

No. 339

A nne  P. New m an , S haron W. N eal 
and John M ungin ,

Petitioners,

P iggie Park E nterprises, Inc., a corporation 
and L. Maurice Bessinger,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONERS

Jack Greenberg 
James M. Nabrit, III 
M ichael Meltsner 

10 Columbus Circle 
New York, New York

Matthew  J. Perry 
L incoln C. Jenkins, Jr. 
H emphill P. Pride, II

1107% Washington Street 
Columbia, South Carolina

Attorneys for Petitioners



I N D E X

PAGE

Opinions Below ......................................................................  1

Jurisdiction ............................................................................  2

Question Presented ..............................................................  2

Statutory Provisions Involved ...........................................  2

Statement ................................................................................  2

Summary of Argument .........................................    6

A rgument .........................................................................................  7

I. Whether Counsel Pees Are Awarded to a Pre­
vailing Plaintiff Under the Public Accommoda­
tions Title of the Civil Rights Act of 1964 Should 
Not Turn on the Subjective Mental State of the 
Defendant .................................................................  7

A. The Fourth Circuit’s standard ................... 9

B. The standard which best effectuates the
ends of Title II ..............................................  11

C. Judge Winter’s standard ..............................  16

II. Under Either the Standard Sought by Peti­
tioners or That Urged by Judges Winter and 
Sobeloff, the Case Should Be Remanded to the 
Courts Below With Instructions to Award Coun­
sel Fees to Plaintiff ................................................  16

Conclusion .............................................................................  18



u

T able of Cases

p a g e

Bell v. School Board of Powhatan County, 321 F. 2d 
494 (4th Cir. 1963) .......................................................  10

Fleischman v. Maier Brewing Co., 386 U. S. 714 (1967) 15

Georgia v. Rachel, 384 U. S. 780 (1966) ......................  8
Gilbert v. Hoisting & Portable Engineers, 237 Or. 139,

390 P. 2d 320 (1964) ...................................................  13

Hamm v. City of Rock Hill, 379 U. S. 306 (1964) ....... 8
Heart of Atlanta Motel v. U. S., 379 U. S. 241 (1964) .. 8

Katzenbach v. McClung, 371 U. S. 291 (Dec. 1964) .... 17

Rolax v. Atlantic Coast Lines R.R., 186 F. 2d 473 (4th 
Cir. 1951) ..................................................................... 10,13

Vaughn v. Atkinson, 369 U. S. 527 (1962) ......................  10

Statutes:

28 U. S. C. §1254(1) .......................................................  2

Civil Rights Act of 1964, 42 U. S. C. §2000a...............2, 3, 7

42 U. S. C. §2000a(b) (1-4) .......................................... 8

42 U. S. C. §2000a(c) ........................................................  8

42 U. S. C. §2000a(c) (2) ................................................... 4

42 U. S. C. §2000a(d) ........................................................  8

42 U. S. C. §2000a-l .......................................................... 8

42 U. S. C. §2000a-2 ..........................................................  8



PAGE

42 U. S. C. §2000a-3 .......................................................  8

42 U. S. C. §2000a-3(b) ........................................2,9,11,14

42 U. S. C. §2000a-5(a) .................................................  8

42 U. S. C. §2000a-5(b) .................................................. 8

42 U. S. C. §2000a-6(a) .................................................  9

Other Authorities:

110 Cong. Rec. 14214 (June 17, 1964) ...............................9,10

Comment, Private Attorneys-General: Group Action 
in the Fight for Civil Liberties, 58 Yale Law Journal 
574 (1949) .......................................................................  13

Ehrenzweig, Reimbursement of Counsel Fees and the 
Great Society, 54 Cal. L. Rev. 792 (1966) ................. 14

“ Integration in the South : Erratic Pattern” New York 
Times, May 29, 1967 .......................................................  11

6 Moore’s Federal Practice 1352 ....................................  9

m



I n  the

(£mtrt of tljT Ht&nxUb States
October T erm, 1967 

No. 339

A nne P. New m an , Sharon W. N eal 
and John M ungin ,

Petitioners,
-v-

P iggie Park E nterprises, Inc., a corporation 
and L. M aurice Bessinger,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONERS

Opinions Below

The opinion of the United States Court of Appeals for 
the Fourth Circuit is reported at 377 F. 2d 433 (A. 159a). 
The opinion of the United States District Court for the 
District of South Carolina is reported at 256 F. Supp. 941 
(A. 135a).



2

Jurisdiction

The judgment of the United States Court of Appeals 
for the Fourth Circuit was entered on April 24, 1967. The 
petition for a writ of certiorari was granted October 9, 
1967. Jurisdiction of this Court is invoked pursuant to 
28 U. S. C. §1254(1).

Question Presented

Whether the Court of Appeals correctly construed Title 
II of the Civil Eights Act of 1964 as denying recovery of 
counsel fees by Negroes excluded from places of public 
accommodation unless a showing is made that a restaura­
teur’s patently frivolous defenses and obstructive tactics 
were the product of dishonesty and bad faith.

Statutory Provisions Involved

This case involves Title II of the Civil Eights Act of 
1964, 42 U. S. C. §§2000a et seq., and more particularly, 
42 U. S. C. §2000a-3(b):

In any action commenced pursuant to this subchapter, 
the court, in its discretion, may allow the prevailing 
party, other than the United States, a reasonable at­
torney’s fee as part of the costs. . . .

Statement

Negro plaintiffs instituted this class action December 
18, 1964 against the corporate operator of a chain of six 
restaurants and its president and principal stockholder,



3

L. Maurice Bessinger, seeking injunctive relief prohibiting 
exclusion of Negroes and recovery of counsel fees pursuant 
to the Civil Rights Act of 1964, 42 U. S. C. §§2000a et seq. 
The complaint alleged, in summary, that at various loca­
tions in South Carolina the corporation operates restau­
rants which affect commerce and where Negroes are re­
fused service (A. 2a-8a).

Defendants answered by denying Negroes were refused 
service; that operation of the restaurants affected com­
merce; and that the restaurants were places of “ public ac­
commodation” as that term is defined in the Civil Rights 
Act of 1964.1 Defendants asserted that Title IT is uncon­
stitutional in violation of the Commerce Clause (Art. I, 
§8); the Privileges and Immunities Clause (Art. IV, §2); 
the Due Process and Equal Protection Clauses of the Four­
teenth Amendment; and the Thirteenth Amendment to the 
Constitution of the United States. In addition, the corpora­
tion president alleged that service of food to Negroes, as 
required by Title II, violated his freedom of religion as 
protected by the First Amendment (A. 9a-21a).

After a two day trial, April 4-5 (A. 22a-134a), the dis­
trict court found that the corporation operates six eating 
places, five of which are drive-ins located on major high­
ways (A. 140a-141a). The sixth, Little Joe’s Sandwich 
Shop, is in downtown Columbia, South Carolina, with tables 
and chairs for approximately sixty customers (A. 141a- 
143a). The district court found “ at least” forty percent of 
the food purchased by the restaurants each year moved in 
commerce (A. 143a) and that the restaurants served many

1 Defendants filed an answer February 5, 1965, an amended an­
swer August 23, 1965, and were permitted by the district court to 
file a second amended answer March 19, 1966. All generally denied 
the allegations of the complaint.



4

interstate travelers (A. 145a). It concluded for both rea­
sons that the operation of the six restaurants affected com­
merce within the meaning of Title II, 42 U. S. C. §2000a- 
(c)(2 ).

Despite denials of Negro exclusion in the pleadings, the 
president of the corporation, a corporation bookkeeper, 
and a waitress testified that Negroes were served only on a 
kitchen door take-out basis (A. 91a, 98a, 101a, 118a). The 
district court found also that two plaintiffs had been denied 
service at one of the restaurants because of race (A. 143a- 
144a). Attorneys for the plaintiffs were forced to spend 
substantial time before the trial amassing evidence to re­
but defendants’ denials in the pleadings that a substantial 
amount of the food it served moved in commerce. A large 
portion of the two day trial was devoted to proving that 
the beef, sugar, Coca-cola, vegetables, cheese, salt and 
other produce used by defendants came from outside South 
Carolina. (These pages of the original record were not 
printed by petitioners, in the interests of keeping the Ap­
pendix concise.) (E. pp. 20-110).

Although the district court found discrimination, and 
that operation of the six restaurants affected commerce, it 
excluded the five drive-ins from coverage on the ground 
that Congress bad not intended Title II to apply to drive- 
ins. It entered an order enjoining racial discrimination at 
the Sandwich Shop only, and awarded Negro plaintiffs 
their costs, but refused to award counsel fees (A. 158a).

Plaintiffs appealed to the United States Court of Ap­
peals for the Fourth Circuit; the United States filed a 
brief Amicus Curiae which supported plaintiffs’ position 
that the drive-in restaurants were covered by the Act and 
did not direct itself to the counsel fee issue. The Court of



5

Appeals, sitting en banc, agreed, holding that the district 
court should have enjoined racial discrimination at all 
restaurants operated by the defendants.

The Court of Appeals further instructed the district 
court “ to consider the allowance of counsel fees, whether 
in whole or in part,” and set forth the “ subjective” test 
which district courts should apply to determine whether 
to permit recovery of counsel fees (A. 165a):

In exercising its discretion, the district court may 
properly consider whether any of the numerous de­
fenses interposed by defendants were presented for 
purposes of delay and not in good faith. But the test 
should be a subjective one, for no litigant ought to 
be punished under the guise of an award of counsel 
fees (or in any other manner) from [sic] taking a posi­
tion in court in which he honestly believes—however 
lacking in merit that position may be.

Judge Winter, with whom Judge Sobeloff joined, dis­
agreed with the majority conclusion that “ good faith, 
standing alone,” should “ immunize a defendant from an 
award against him.” Judge Winter examined the relation­
ship of the provision for recovery of counsel fees to en­
forcement of Title II, and concluded that a “ subjective” 
test would frustrate compliance (A. 166a-167a):

In providing for counsel fees, the manifest purposes 
of the Act are to discourage violations, to encourage 
complaints by those subjected to discrimination and 
to provide a speedy and efficient remedy for those 
discriminated against. If counsel fees are withheld or 
grudgingly granted, violators feel no sanctions, vie-



6

tims are frustrated and instances of unquestionably 
illegal discrimination may well go without effective 
remedy. To immunize defendants from an award of 
counsel fees, honest beliefs should bear some reason­
able relation to reality; never should frivolity go un­
recognized.

Petitioners are represented by retained private counsel 
of Columbia, South Carolina, who have been assisted by 
salaried attorneys of a nonprofit civil rights organization. 
The award of counsel fees is sought only by the retained 
South Carolina counsel for their services, and not for 
others.

Summary of Argument

Congress has left to the courts the determination of 
the proper standards for awarding reasonable attorneys’ 
fees in cases arising under the public accommodations 
title of the Civil Rights Act of 1964. Petitioners submit 
that the subjective bad faith standard formulated by the 
court below is improper because it fails utterly to further 
the purposes of the Act, and in fact inhibits them. To re­
quire proof of an insincere state of mind is unworkable, 
inconsistent with the legislative history, and holds Con­
gress to have done no more than codify a pre-existing 
equity power of the federal courts.

The purpose of the counsel fee provision is to avoid 
personal financial loss to private plaintiffs who perform 
an essentially public function when they bring injunction 
actions to desegregate facilities which have failed to com­
ply with the law, and to encourage attorneys to take Title 
II cases. The standard which best effectuates this purpose



7

allows counsel fees to prevailing plaintiffs as a matter of 
course, absent unusual circumstances. The formulation of 
the judges concurring specially below—award of counsel 
fees only when defendants raise frivolous defenses or em­
ploy dilatory tactics—is also a workable standard. It would 
deter vexatious conduct once suit was filed but it would 
not materially advance the public policy of Title II by 
encouraging initiation of Title II actions against recalci­
trant discriminators. Under either the standard urged by 
petitioners or that formulated by the concurring judges 
below, the judgment below should be vacated and the cause 
remanded to the courts below with instructions that coun­
sel fees should be awarded to these petitioners.

A R G U M E N T

I.

Whether Counsel Fees Are Awarded to a Prevailing 
Plaintiff Under the Public Accommodations Title of the 
Civil Rights Act of 1964 Should Not Turn on the Sub­
jective Mental State of the Defendant.

The counsel fees provision of Title II of the Civil Rights 
Act of 1964, 42 U. S. C. §2000a et seq., is an integral part 
of a comprehensive scheme to secure civil rights for all 
Americans without regard to race. Enactment of this stat­
ute marked a watershed in the history of race relations in 
America, and the public accommodations title has become 
the most conspicuous symbol of the change. Congress 
undertook to write a sweeping law which would bring about 
the maximum desegregation of public accommodations in 
the shortest possible time. For the Act to be successful,



8

compliance with it had to be universal, for reasons both 
psychological and economic. First, not much would be 
accomplished if only some restaurants and lodges desegre­
gated, for it is scant consolation to the Negro traveler that 
many facilities are desegregated if the one he enters con­
tinues to discriminate. Second, commerce is burdened by 
uncertainty itself when not all eating facilities have de­
segregated. And third, individual covered establishments 
in some communities might find it profitable to avoid com­
pliance if they could avoid being brought to task. Congress 
therefore enacted “ most comprehensive” substantive pro­
visions, see Heart of Atlanta Motel v. United States, 379 
U. S. 241, 246 (1964), which extended the coverage of the 
Act to the constitutional limits of the Commerce power, 
42 U. S. C. §§2000a (b) (1-4), 2000a (c), and the power of 
Congress under the Fourteenth Amendment, 42 U. S. C. 
§§2000a (d), 2000a-l, and prohibited any attempt to de­
prive any person of his rights under the Act, 42 U. S. C. 
§2000a-2; see Hamm v. City of Rock Hill, 379 U. S. 306 
(1964); Georgia v. Rachel, 384 U. S. 780 (1966). In addi­
tion, Title II comprises a series of related provisions, 
including the section on counsel fees, which provide for 
rapid and effective enforcement of the newly created statu­
tory rights and in many ways encourage use of the federal 
courts against recalcitrant public accommodations: by 
permitting the “ commencement of the civil action without 
the payment of fees, costs, or security” where necessary, 
42 U. S. C. §2000a-3; by permitting the United States At­
torney General to bring civil actions for injunctive relief 
when a pattern or practice of discrimination exists, 42 
U. S. C. §2000a-5 ( a ) ; by authorizing three-judge courts to 
hear suits of general public importance, 42 U. S. C. 
§2000a-5 ( b ) ; and by suspending, in Title II suits, the doc­



9

trine of exhaustion of administrative remedies, 42 U. S. C. 
§2000a-6(a). These sections, like the counsel fee section, 
were drafted in response to the desire of Congress to pro­
vide Negro plaintiffs with easy access to the courts for 
redress of grievances, so that demonstrations like those 
preceding passage of the law would not be necessary in the 
future.

A. The Fourth Circuit’s standard.

Central to the provisions for enforcement of Title II 
is the counsel fee provision, 42 U. S. C. §2000a-3(b). The 
legislative history of this section is meager, but by making 
the award of counsel fees discretionary, Congress evi­
dently left it to the courts to evolve standards for the 
implementation of this section which would best advance 
the purposes of the Act. What little the legislative history 
reveals is inconsistent with the majority opinion below— 
awarding attorneys’ fees only where the defendant was in 
subjective bad faith. Senator Miller, opposing an amend­
ment that would have deleted this section, suggested that 
attorneys’ fees would be granted in “meritorious” cases, 
110 Cong. Rec. 14214, June 17, 1964, and neither he nor 
anyone else suggested that a subjective mental state evinc­
ing bad motives was to be a prerequisite for an award of 
reasonable fees. Three other factors also demonstrate that 
the subjective bad faith standard is not a proper construc­
tion of 42 U. S. C. §2000a-3(b). First, such a construction 
holds Congress to have done nothing more in the section 
than codify existing law, for long before the Civil Rights 
Act, federal district courts had inherent power to do what 
the Fourth Circuit’s reading of the section authorizes; that 
is, to award counsel fees to a successful plaintiff where a 
defense is maintained “ in bad faith, vexatiously, wantonly, 
or for oppressive reasons.” 6 Moore’s Federal Practice



10

1352. See Vaughn v. Atkinson, 369 U. S. 527 (1962). And 
for years federal courts have been imposing such costs in 
racial discrimination cases where manifest insincerity and 
had faith have been shown. Bell v. School Board of 
Powhatan County, 321 F. 2d 494 (4th Cir. 1963); Rolax v. 
Atlantic Coast Line R.R., 186 F. 2d 473 (4th Cir. 1951). 
Statutes authorizing awards of counsel fees in private 
litigation are unusual departures from the general Ameri­
can rule of letting the costs of counsel lie with the party 
hiring counsel; such statutes should not be read to add 
nothing to the power of the federal courts. This conclu­
sion is bolstered by the fact that the Senate rejected a move 
to delete the counsel fee provision on the ground that to 
grant counsel fees conflicted with the prevailing practice, 
110 Cong. Rec. 14214 (June 17, 1964).

Second, the court below said that “ the test should be a 
subjective one, for no litigant ought to be punished . . . 
from (sic) taking a position in court in which he honestly 
believes—however lacking in merit that position may be” 
(A. 165a). But it will rarely be possible for a plaintiff to 
prove the subjective state of mind of a defendant. This 
is a fact about which all of the evidence is in the defen­
dant’s possession. Occasionally a defendant may make 
a statement during trial reflecting on his state of mind 
which will be adverse to his position, but the award of rea­
sonable counsel fees could not have been intended to turn 
upon such a fortuity which bears no rational relationship 
to increasing the extent of desegregation.

Finally, it seems impossible to apply a subjective stand­
ard at all where, as is often the case and is the case here, 
a defendant is a corporation. Just whose intent the district 
court is to look to under the Fourth Circuit standard is



11

unclear. The general counsel’s, since he decides which 
defenses to interpose? What if the company has more than 
one counsel, and each attorney has a different state of 
mind? Should the court look to the intent of the directors 
on the theory that they directed the work of the counsel and 
are generally responsible for what he does? Again, what 
if the directors differed in whether they “ honestly believed” 
that a defense was a serious one? Of what relevance are 
the beliefs on the stockholders, the true owners of the de­
fendant corporation? All of these considerations make it 
unreasonable to interpret §2000a-3(b) to require a vexa­
tious state of mind.

B. The standard which best effectuates the 
ends o f Title II.

In order to determine the counsel fee standard which 
best effectuates the puiqxoses of Title II it is necessary to 
examine the function of the private remedy which Congress 
authorized. It was plain when Congress passed the Act 
that to the extent universal voluntary compliance was not 
achieved, widespread use of the courts would be necessary 
to ensure maximum desegregation. In fact although volun­
tary compliance was quickly achieved in many major cities, 
and large chain restaurants and lodges adhered to the Act 
immediately, hundreds of smaller establishments, particu­
larly in the small cities and rural areas of the South, have 
not yet conformed to the Act.2 Hundreds of suits will be

2 As a recent survey by the New York Times (“ Integration in 
South: Erratic Pattern” ) put it :

It is possible to motor through the green valleys of Virginia, 
veer through the cotton fields in Alabama and Mississippi, and



12

necessary before equal access to all public accommodations 
in the South is a reality. Since the Justice Department 
could not be burdened with hundreds of suits of this type, 
Congress limited the Department’s role to cases involving 
a “ pattern or practice of resistance” , and relied primarily 
on private litigants to bring the bulk of the lawsuits neces­
sitated by obduracy. The counsel fee provision is crucial 
to this enforcement device. Plaintiffs unde]- the Act may 
secure only injunctive relief, never damages. Yet the time 
and effort which a plaintiff’s attorney must put into pre­
paring and arguing a contested case are frequently sub­
stantial, as is shown by this record, especially when the 
proportion of food the facility purchases in interstate 
commerce must be proved. Relatively few Negroes are 
likely to bring a suit if they are required to spend signif­
icant amounts of their money to integrate each diner at 
which they desired to eat, and few attorneys are likely to 
waive a fee. Nor should they have to. When a Negro brings 
an injunctive suit, he does so not only for himself, but for 
all Negroes and whites who wish to eat in integrated facili­
ties, and even for hundreds of thousands of Americans who 
will never eat at the defendant’s establishment, but who, 
through their representatives, chose to make this a country 
in which no man was afforded second-class citizenship be­

end up in Texas cattle country with the conviction that racial 
segregation and discrimination are gone at last.

You could get that impression if you dined at chain restau­
rants like Howard Johnson’s, slept in chain motels such as the 
Holiday Inns,. . .

A different itinerary might leave you convinced that the 
South has not changed at all. Asking for a night’s lodging in 
an obscure motel can be risky for a Negro who wants to avoid 
embarrassment. And in countless small towns, independent res­
taurants cater mainly to an all-white clientele, and Negroes 
still watch movies from segregated balconies. (N. Y. Times, 
May 29,1967, p. 1, col. 1.)



13

cause of the color of his skin. A Title II suit is a private 
action in form only; it is in reality a public suit, and the 
plaintiff is in effect a “ private attorney-general” advanc­
ing a public policy of the highest priority. Cf-, Comment, 
Private Attornevs-General: Group Action on the Fight 
for Civil Liberties, 58 Yale L. J. 574 (1949). The many 
enforcement provisions of the Act, supra at p. 8 are de­
signed to encourage such litigation by individual plain­
tiffs, on behalf of this wider public interest. The counsel 
fee provision, properly construed, is a key feature in ren­
dering this system workable. Negro plaintiffs must have 
a certain amount of motivation and perhaps courage, but 
Congress has designed the statute so that they need not 
be wealthy, and neither they nor their attorneys need sub­
sidize a public activity from their own pockets.3 It is be­
cause the court below misconstrued the nature of a Title IT 
suit that it arrived at too limited a formulation of the con­
ditions for an award of counsel fees. Public accommoda­
tions do not have a right to maintain segregated facilities

3 The theory that the purpose of counsel fees may be to encourage 
“public” litigation by private parties, by saving them whole should 
they win, is an accepted device. For example, in Oregon, union 
members who succeed in suing union officers guilty of wrongdoing 
are entitled to counsel fees both at the trial level and on appeal, 
because they are protecting an interest of the general public:

If those who wish to preserve the internal democracy of the 
union are required to pay out of their own pockets the cost of 
employing counsel, they are not apt to take legal action to 
correct the abuse. . . . The allowance of attorneys’ fees both in 
the trial court and on appeal will tend to encourage union 
members to bring into court their complaints of union mis­
management and thus the public interest as well as the interest 
of the union will be served.

Gilbert v. Hoisting d* Portable Engineers, 237 Or. 139, 390 P. 2d 
320 (1964). See also Rolax v. Atlantic Coast Line R.R., 186 F. 2d 
473 (4th Cir. 1951).



14

until sued. They have a duty to integrate. The purpose of 
the counsel fee section is not merely to punish a defendant 
who adopts obstructionist tactics during a trial which should 
never have been required in the first place; rather, the pur­
pose is to encourage the bringing of suits against public 
accommodations which fail to perform their basic obliga­
tions under the Act.

The construction of §2000a-3(b) which best promotes 
these ends is for the lower courts always to presume that 
prevailing plaintiffs are entitled to counsel fees unless very 
special circumstances render such a disposition unjust,4 
Prevailing defendants, on the other hand, need not rou­
tinely receive counsel fees. No analogous public policy 
encourages restaurants just beyond the coverage of the Act 
to resist integration by every means possible. Though the 
Act permits district courts to award counsel fees to the 
prevailing “party” , it would be sufficient to award such 
fees to a prevailing defendant only when the initiation or 
conduct of plaintiff’s suit was manifestly frivolous (as, for 
example, when another plaintiff had just lost a suit against 
the same defendant). Such standards ideally serve the 
function of the Act: they promote integration of public 
accommodations. They do not render §2000a-3(b) subject 
to the objection which has thus far prevented awards of 
counsel fees to the prevailing party from becoming a stand­
ard feature of American jurisprudence5—that they dis­

4 For example, it might arguably have been proper to let attor­
neys’ fees rest with the respective parties in the very first case 
testing the constitutionality of the Act, since defendants challeng­
ing the statute on constitutional grounds would also be performing 
a public function.

5 In no other country in the world is the prevailing party in a 
civil suit required to bear the expense of enforcing his just claim. 
Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 
54 Cal. L. Rev. 792, 793 (1966).



15

courage the poor from bringing lawsuits because they 
might have to pay an uncertain amount of defendant’s coun­
sel fees. See Fleischman v. Maier Brewing Co., 386 U. S. 
714, 718 (1967). Nor are they inconsistent with the Act’s 
grant of “ discretion” to the district courts. Such discre­
tion is properly applicable to a determination of the “ rea­
sonable” amount of fees awarded, rather than whether fees 
are to be awarded at all.

The above rules will lead to maximum enforcement, which 
must ultimately depend upon the energies of private liti­
gants. Neither the Department of Justice nor the civil 
rights organizations have the money or the personnel that 
would be necessary to bring suits in hundreds of rural 
communities in the South. Although the Office of Economic 
Opportunity has sponsored the establishment of 292 “ law 
offices for the poor” , only 36 communities have such pro­
grams in the eleven states of the Confederacy (and Ala­
bama has none). Significantly, petitioners’ counsel has been 
informed that no neighborhood law office for the poor set 
up by the Office of Economic Opportunity has participated 
in a public accommodations case. Hopefully, the grant of 
counsel fees as a matter of course to plaintiffs successful 
in integrating public accommodations will not only further 
the purposes of the Act, but may ultimately involve a 
much broader segment of the bar in civil rights litigation; 
private attorneys will be more likely to accept a public 
accommodations case if they are offered a reasonable like­
lihood of being able to collect a fee from a solvent business 
enterprise.



16

C. Judge Winter’ s standard.

While the standard petitioners recommend will most 
soundly effectuate the Civil Rights Act, it is not the only 
workable standard. The interpretation given the counsel 
fee section by Judges Winter and Sobeloff, concurring 
specially below (awarding counsel fees against defendants 
who employ the dilatory tactics or raise objectively frivo­
lous defenses), would at least deter defendants from im­
posing unnecessary burdens on plaintiffs and then claiming 
that their defenses, however frivolous, were in good faith. 
Such a standard would not encourage the bringing of Title 
II injunctive suits and thereby promote elimination of 
segregation, but would help significantly to expedite cases 
once brought.

II.

Under Either the Standard Sought by Petitioners or 
That Urged by Judges Winter and Sobeloff, the Case 
Should Be Remanded to the Courts Below With Instruc­
tions to Award Counsel Fees to Plaintiff.

The Fourth Circuit, remanding this case, ordered the 
district court to consider the allowance of counsel fees 
and added that “ the test should be a subjective one” (A. 
165a). If this Court agrees either with petitioners or with 
the concurring judges of the Fourth Circuit, different in­
structions must be given the district court. If petitioners’ 
standard constitutes the correct construction of the Act, 
the court should be directed to award counsel fees because 
no extremely unusual reasons justified defendants in post­
poning compliance with the Act until after a trial (April 
4, 5, 1966), rather than desegregating when the Act was



17

passed (July 2, 1964) or at the latest when this Court 
upheld the constitutionality of the law (December 14, 1964).

On the other hand, if the interpretation given the coun­
sel fee section by Judges Winter and Sobeloff is the proper 
one, the district court should also be directed to award 
counsel fees, because it is plain that all or nearly all of 
defendants’ defenses were frivolous and only served to in­
crease the difficulty of proving plaintiff’s case and put off 
the date of compliance. Defendants in this case pursued 
various theories that Title II was unconstitutional years 
after the question had been definitively resolved by this 
Court in Katsenbadi v. McClung, 371 U. S. 291, in Decem­
ber, 1964. A second amended answer raising such defenses 
was filed March 30, 1966, after “ carefully reviewing the 
pleadings heretofore filed” (A. 17a). Defendants also denied 
their activities affected commerce, forcing petitioners to 
offer hours of testimony to prove their case. After trial, 
the district court (which erroneously excluded the drive-in 
facilities on another ground) had no trouble determining 
that all six facilities were clearly covered by the Act both 
because a substantial portion of the corporation’s food 
moved in commerce and because it served or offered to 
serve interstate travelers. Likewise, “ the fact that the de­
fendants had discriminated both at Piggie Park’s drive-ins 
and at Little Joe’s Sandwich Shop was of course known 
to them, yet they denied the fact and made it necessary for 
the plaintiffs to offer proof, and the defendants could not 
and did not undertake at the trial to support their denials” 
(A. 167a). In addition, defendants interposed a series of 
utterly frivolous defenses, including claims that the Act 
was invalid because it “ contravenes the will of God” , that



18

it interfered with the “ free exercise of Defendant’s re­
ligion” , that it constituted a taking without just compensa­
tion, that it denied defendants equal protection of the laws, 
that it abridged the defendants’ privileges and immunities 
under Article 4, Section 2, and that it imposed on defen­
dants an involuntary servitude. To permit defendants to 
require plaintiffs or their attorneys to bear the costs of 
presenting opposition to these defenses would severely re­
strict the effect of Title II and frustrate the design of 
Congress.

CONCLUSION

For the foregoing reasons, it is respectfully requested 
that the judgment below be vacated and the cause be 
remanded to the courts below with directions to award 
counsel fees to petitioners.

Kespectfully submitted,

Jack Greenberg 
James M. Nabrit, III  
M ichael M eltsner

10 Columbus Circle 
New York, New York

Matthew  J. Perry 
L incoln C. Jenkins, Jr. 
H emphill P. Pride, II

1107% Washington Street 
Columbia, South Carolina

Attorneys for Petitioners



RECORJP/m

B NORTON STREET 
HEW YORK M, K. Y.

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