Sullivan v. Little Hunting Park Brief for Petitioners
Public Court Documents
June 30, 1969
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Brief Collection, LDF Court Filings. Sullivan v. Little Hunting Park Brief for Petitioners, 1969. 35c35d5a-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6dba601c-4099-4ddf-863e-16ecfeae3023/sullivan-v-little-hunting-park-brief-for-petitioners. Accessed April 27, 2025.
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No. 929
IN THE
SUPREME COURT OF THE UNITED STATES
O C T O B E R T E R M , 1 968
Paul E. Sullivan, et al., petitioners
v.
Little Hunting Park, Inc., et al.
T. R. F reeman, Jr ., et al., petitioners
v.
Little Hunting Park, Inc., et al.
On Writ o f Certiorari to the
Supreme Court o f Appeals o f Virginia
BRIEF FOR THE PETITIONERS
Jack Greenberg
James M. Nabrit, III
10 Columbus Circle
New York, New York 10019
Of Counsel
Allison W. Brown, Jr.
Suite 501, 1424-16th Street, N.W
Washington, D.C. 20036
Peter Ames Eveleth
217 Fifth Street, S.E.
Washington, D.C. 20003
R obert M. A lexander
2011 S. Glebe Road
Arlington, Virginia 22204
Attorneys for Petitioners
Washington. D. C. - THIEL PRESS 202 393-0625
(0
TABLE OF CONTENTS
Page
PRIOR OPINIONS................................................................................... 1
JURISDICTION........................................................................................ 2
QUESTIONS PRESENTED ................................................................... 2
STATUTORY AND CONSTITUTIONAL PROVISIONS............. 3
STATEMENT............................................................................................. 3
A. Introduction................................................................................... 3
B. Little Hunting Park, Inc—Its purpose and manner of
operation ........................................................................................ 6
C. The corporation’s directors refuse to approve the
assignment of Paul E. Sullivan’s share because the
assignee, Dr. T. R. Freeman, Jr., and his family are
N egroes....................................................................................... 7
D. The corporation’s directors expel Paul E. Sullivan
because of his criticism of their refusal to approve the
assignment of his share to Dr. T. R. Freeman, Jr. on
the basis of race.......................................................................... 9
E. Relief sought.................................................................................. 11
SUMMARY OF ARGUMENT................................................................ 12
ARGUMENT............................................................................................. 15
I. The Supreme Court of Appeals of Virginia improp
erly refused to accept this Court’s remand of the
case............................................................................................ 15
A. The non-federal procedural ground on which the
Virginia court based its rejection of the remand
had previously been held by this Court to be
inadequate to bar consideration of petitioners’
asserted federal rights..................................................... 15
B. The procedural ruling of the Supreme Court of
Appeals of Virginia which was the basis for its
refusal to hear this proceeding is arbitrary and
unreasonable, and inadequate to bar considera
tion of petitioners’ asserted federal rights.................. 17
II. The discriminatory racial policy of Little Hunting
Park, Inc. violates the Civil Rights Act of 1866 (42
U.S.C. §§ 1981, 1 9 8 2 ) .......................................................... 21
III. The Fourteenth Amendment is violated by the dis
criminatory racial policy of Little Hunting Park,
Inc., and by the state court in sanctioning i t .................. 29
IV. Sullivan’s expulsion from the association may not
be permitted to stand, because it was-in retaliation
for his effort to deal with Freeman on a non-
discriminatory basis as required by §§ 1981, 1982 . . . . 32
V. Sullivan’s constitutional right of free speech was
violated by Little Hunting Park, Inc. in expelling
him because he dissented from its discriminatory
racial policy, and by the state court in sanctioning
the expulsion .......................................................................... 33
VI. Sullivan’s expressions of dissent from the racial
policy of Little Hunting Park, Inc. were well within
permissible limits of activity for a member of such
an association.......................................................................... 36
A. The judicially approved limits of membership
co n d u ct............................................................................. 36
B. Most of the charges against Sullivan were false
and the rest were exaggerated characterizations
by which the directors sought to mask their
true intention to expel him because of his dis
sent from their racial p o lic y ........................................ 39
VII. The petitioners have valid claims for dam ages................ 50
CONCLUSION....................................................................................... 54
APPENDIX ............................................................................................ 57
TABLE OF CITATIONS
CASES:
Abdon v. Wallace, 95 Ind. App. 604, 165 N.E. 6 8 ........................ 37
Adam v. Saenger, 303 U.S. 5 9 ............................................................... 55
Allnutt v. High Court of Foresters, 62 Mich. 110, 28 N.W.
802 ..........................................................................................
(ii)
38
Amalgamated Food Employees Union Local 590 v. Logan
Valley Plaza, Inc., 391 U.S. 308 ........................................ 14 ,30 ,34
American Universal Insurance Co. v. Scherfe Insurance
Agency, 135 F. Supp. 407 (S.D. Iow a)....................................... 54
Anderson v. Pantages Theater Co., 114 Wash. 24, 194 P. 813 . . . 52
Angrisani v. Steam, 167 Misc. 731, 3 N.Y.S.2d 701, aff’d,
255 App. Div. 975, 8 N.Y.S.2d 997 ............................................. 38
Antelope v. George, 211 F. Supp. 657 (N.D. Idaho).................. 52, 53
Bacigalupo v. Fleming, 199 Va. 827, 102 S.E.2d 3 2 1 ................19, 21
Baird v. Tyler, 185 Va. 601, 39 S.E.2d 642.".................................. 23
Baker v. Marcus, 201 Va. 905, 114 S.E.2d 6 1 7 ............................. 54
Barrows v. Jackson, 346 U.S. 249 ............................. 1 4 ,3 0 ,3 1 ,3 3 , 36
Barry v. Edmunds, 116 U.S. 550 ....................................................... 53
Barry v. The Players, 147 App. Div. 704, 132 N.Y.S. 5 9 ............. 38
Basista v. Weir, 340 F.2d 74 (C.A. 3 ) ............................................... 51
Bell v. Hood, 327 U.S. 678 .................................................................. 50
Bell v. Maryland, 378 U.S. 226 .......................................................... 31
Bernstein v. Alameda-Contra Costa Medical Ass’n, 139 Cal.
App. 2d 241, 293 P.2d 862 ....................................................... 32 ,38
Blackwell v. Harrison, 221 F. Supp. 651 (E.D. V a .) ..................... 26
Bolton v. Vellines, 94 Va. 393, 26 S.E. 847 ................................... 54
Brazier v. Cherry, 293 F.2d 401 (C.A. 5), cert, denied, 368
U.S. 921 ............................................................................................. 51
Brown v. Board of Education, 347 U.S. 483 .................................. 52
Browning v. Slenderella Systems of Seattle, 54 Wash. 440,
341 P.2d 859 ..................................................................................... 52
Buchanan v. Warley, 245 U.S. 6 0 ..................................... .................. 31
Byrne v. Schuyler Elec. Mfg. Co., 65 Conn. 336, 31 Atl. 833 . . . 28
Callender v. Florida, 383 U.S. 270 ..................................................... 55
Callender v. Florida, 380 U.S. 5 1 9 ..................................................... 55
Caperci v. Huntoon, 397 F.2d 799 (C.A. 1), cert, denied,
393 U.S. 940 ............................................................................. 51
Carlson v. Ringgold County Mutual Telephone Co., 252
Iowa 748, 108 N.W.2d 4 7 8 ............................................................. 28
Chesapeake & Ohio Ry. Co. v. American Exchange Bank,
92 Va. 495, 23 S.E. 9 3 5 .................................................................. 16
Clearfield Trust Co. v. United States, 318 U.S. 363 ..................... 23
Clifton v. Puente, 218 S.W.2d 272 (Tex. Civ. A p p .)..................... 31
Cook v. Virginia Holsum Bakeries, Inc., 207 Va. 815, 153
S.E.2d 209 .......................................................................................... 19
Crossen v. Duffy, 90 Ohio App. 252, 103 N.E.2d 769 ........... 34 ,39
Curtis Publishing Co. v. Butts, 388 U.S. 130 ...........................14, 34-35
Daniel v. Paul, 37 U.S.L. Week 4481 (U.S. June 2, 1 9 6 9 ) ........... 28
Durant v. Essex Co., 11 Otto 555 ..................................................... 16
Edwards v. Habib, 397 F.2d 687 (C.A. D .C .).................................. 32
Evans v. Newton, 382 U.S. 2 9 6 ....................................................... 28, 30
Fay v. Noia, 372 U.S. 3 9 1 .................................................................. 55
Franklin Plant Farm, Inc. v. Nash, 118 Va. 98, 86 S.E. 836 . . . 54
Gallaher v. American Legion, 154 Misc. 281, 277 N.Y.S. 81,
aff’d, 242 App. Div. 604, 271 N.Y.S. 1012 .............................34, 37
Gibbons v. Ogden, 9 Wheat. 1 ............................................................. 55
Gleiforst v. Workingmen’s Sick & Death Benefit Fund, 37
Misc. 221, 75 N.Y.S. 4 4 .................................................................. 39
Gottlieb v. Economy Stores, Inc., 199 Va. 848, 102 S.E.2d
345 ....................................................................................................... 38
Grimes v. Crouch, 175 Va. 126, 7 S.E.2d 1 1 5 ............................. 19, 20
Hague v. Committee for Industrial Organization, 101 F.2d
774 (C.A. 3), modified on other grounds, 307 U.S. 496 . . . . 53
Hamm v. Virginia State Board of Elections, 230 F. Supp.
156 (E.D. Va.), aff’d, 379 U.S. 1 9 ................................................. 26
Harris v. Sunset Islands Property Owners, Inc., 116 So. 2d
622 (Fla.) .......................................................................................... 29
Higgins v. American Society of Clinical Pathologists, 51 N.J.
191, 238 A.2d 665 ......................................................................... 32
Hitchcock v. American Plate Glass Co., 259 Fed. 948
(C.A. 3)
(iv)
54
Howard v. Lyons, 360 U.S. 593 ........................................................ 23
Hurwitz v. Directors Guild of America, 364 F.2d 67 (C.A.
2), cert, denied, 385 U.S. 9 7 1 ....................................................... 34
Hyde v. Woods, 4 Otto 523 ............................................................... 23
Hyson v. Dodge, 198 Va. 792, 96 S.E.2d 792 ................................ 19
Int’l Brotherhood of Boilermakers, etc. v. Braswell, 388 F.2d
193 (C.A. 5 ) ....................................................................................... 54
Jones v. Mayer Co., 392 U.S. 409 . . . 5 ,16 , 21-22, 23, 26, 50, 51,53
Kornegay v. City of Richmond, 185 Va. 1013, 41 S.E.2d 45 . . 19, 20
Kreshik v. St. Nicholas Cathedral, 363 U.S. 1 9 0 ............................. 55
Lane v. Wilson, 307 U.S. 268 ............................................................. 51
Lauderbaugh v. Williams, 409 Pa. 351, 186 A.2d 3 9 ..................... 29
Lobato v. Pay Less Drug Stores, Inc., 261 F.2d 406 (C.A.
1 0 ) ............................................ 54
Lombard v. Louisiana, 373 U.S. 267 ................................................ 26
Loving v. Virginia, 388 U.S. 1 ............................................................. 26
Madden v. Atkins, 4 N.Y.2d 283, 151 N.E.2d 73 ........................ 38, 39
Mahoney v. Sailors’ Union of the Pacific, 43 Wash. 2d 874,
264 P.2d 1095 .................................................................................. 39
Malibou Lake Mountain Club v. Robertson, 219 Cal. App.
2d 181, 33 Cal. Rptr. 74 ............................................................. 32 ,38
Manning v. Klein, 1 Pa. Super. 2 1 0 ................................................32, 37
Marsh v. Alabama, 326 U.S. 501 ............................................. 14, 30, 34
Martin v. Hunter’s Lessee, 1 Wheat. 304 ........................................ 16, 55
McArthur v. Pennington, 253 F. Supp. 420 (E.D. Tenn.)............. 52
McCulloch v. Maryland, 4 Wheat. 316 ............................................. 55
Meyers v. Lux, 76 S.D. 182, 75 N.W.2d 533 ............................. .'. 28
Miller v. Builders’ League of New York, 29 App. Div. 630,
53 N.Y.S. 1 0 1 6 .................................................................................. 38
Mitchell v. Int’l Ass’n of Machinists, 196 Cal. App. 2d 796,
16 Cal. Rptr. 8 1 3 ............................................................................ 34 ,37
Monroe v. Pape, 365 U.S. 1 6 7 ............................................................. 51
(v)
Morris v. Hussong Dyeing Machine Co., 81 N.J. Eq. 256, 86
Atl. 1026 ............................................................................................. 28
Mountain Springs Ass’n v. Wilson, 81 N.J. Super. 564, 196
A.2d 270 ............................................................................................. 29
Myers v. Anderson, 238 U.S. 368 ..................................................... 51
N.A.A.C.P. v. Alabama, 377 U.S. 2 8 8 .............................................16, 55
N.A.A.C.P. v. Alabama, 360 U.S. 2 4 0 ............................................... 17
N.A.A.C.P. v. Alabama, 357 U.S. 4 4 9 ............................................... 16
Naim v. Naim, 350 U.S. 891; on remand, 197 Va. 734, 90
S.E.2d 849, appeal dismissed, 350 U.S. 9 8 5 ................................ 55
Nash v. Florida Industrial Commission, 389 U.S. 235 ................... 32
National Cash-Register Co. v. Leland, 94 Fed. 502 (C.A. 1),
cert, denied, 175 U.S. 724 .............................................................. 54
National Labor Relations Board v. Industrial Union of
Marine & Shipbuilding Workers, 391 U.S. 4 1 8 .......................... 31
Nesmith v. Young Men’s Christian Ass’n of Raleigh, N.C.,
397 F.2d 96 (C.A. 4 ) ........................................................................ 29
New York Times Co. v. Sullivan, 376 U.S. 254 ............................. 35
Nixon v. Herndon, 273 U.S. 536 ....................................................... 51
Page v. Edmunds, 187 U.S. 5 9 6 .......................................................... 23
Parrot v. City of Tallahassee, 381 U.S. 1 2 9 ..................................... 16
People ex rel. Ward v. Up-Town Ass’n, 9 App. Div. 191, 41
N.Y.S. 1 5 4 ................................! ....................................................... 39
Philadelphia, Wilmington & Baltimore R. Co. v. Quigley, 21
How. 202 .......................................................................................... 53
Pickering v. Board of Education, 391 U.S. 563 . . . 34, 35, 38, 39, 50
Polin v. Kaplan, 257 N.Y. 277, 177 N.E. 833 ................................ 38
Porterfield v. Black Bill & Doney Parks Water Users’ Ass’n,
69 Ariz. 110, 210 P.2d 3 3 5 ........................................................... 28
Public Utilities Comm’n v. Poliak, 343 U.S. 4 5 1 ............................. 30
Ray v. Brotherhood of Railroad Trainmen, 182 Wash. 39, 44
P.2d 787 ............................................................................................. 37
Reilly v. Hogan, 32 N.Y.S.2d 864, aff’d, 264 App. Div. 855,
36 N.Y.S.2d 423 .......................................................................
(vi)
39
Reitman v. Mulkey, 387 U.S. 369 .......................................... 26, 31 ,36
Rhoads v. Horvat, 270 F. Supp. 307 (D. C olo .).......................... 51, 53
Rice v. Sioux City Memorial Cemetery, 349 U.S. 7 0 ..................... 31
Rockefeller Center Luncheon Club, Inc. v. Johnson, 131
F. Supp. 703 (S.D. N .Y .) ............................................................... 29
Schaubach v. Anderson, 184 Va. 795, 36 S.E.2d 539 .................. 16
Schneider v. Local Union No. 60, 116 La. 270, 40 So. 700 . . . . 37
Schrank v. Brown, 192 Misc. 80, 80 N.Y.S.2d 452 ........................ 39
Shelley v. Kraemer, 334 U.S. 1 ........................................ 13, 29, 30, 31
Sherrod v. Pink Hat Cafe, 250 F. Supp. 516 (N.D. M iss .)........... 51
Shuttlesworth v. City of Birmingham, 376 U.S. 339 ..................... 21
Sibbald v. United States, 12 Pet. 488 ................................................ 16
Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959
(C.A. 4), cert, denied, 376 U.S. 938 ..................... ' ..................... 30
Simmons v. Avisco, Local 713, Textile Workers Union of
America, 350 F.2d 1012 (C.A. 4 ) ................................................ 53
Snead v. Commonwealth, 200 Va. 850, 108 S.E.2d 399 ............. 21
Solomon v. Pennsylvania R. Co., 96 F. Supp. 709 (S.D.
N .Y .).............................................................................................. 52
Spayd v. Ringing Rock Lodge No. 665, 270 Pa. 67, 113 Atl.
7 0 .................................................................................................... 32 ,37
Spencer v. Flint Memorial Park Ass’n, 4 Mich. App. 157,
144 N.W.2d 622 ............................................................................... 31
Stanley v. Schwalby, 162 U.S. 255 .................................................... 55
State ex rel. Waring v. Georgia Medical Society, 38 Ga. 608,
95 Am. Dec. 408 .......................................................................... 32, 37
Staub v. City of Baxley, 355 U.S. 3 1 3 ............................................. 16
Stein v. Marks, 44 Misc. 140, 89 N.Y.S. 9 2 1 .................................. 37
Steele v. Louisville & Nashville R. Co., 323 U.S. 1 9 2 .................. 51
Stokely v. Owens, 189 Va. 248, 52 S.E.2d 1 6 4 ............................. 19
Sullivan v. Little Hunting Park, Inc., 392 U.S. 6 5 7 .................. 1 ,3 , 5
Sullivan v. Little Hunting Park, Inc., 209 Va. 279, 163
S.E.2d 588
(vii)
1
Sullivan v. Little Hunting Park, Inc., 12 Race Rel. L. Rep.
1008 ..................................................................................................... 2
Tate v. Department of Conservation and Development, 133
F. Supp. 53 (E.D. Va.), aff’d, 231 F.2d 615 (C.A. 4,
cert, denied, 352 U.S. 838 ........................................................ 26, 30
Taylor v. Wood, 201 Va. 615, 112 S.E.2d 9 0 7 .......................... 19, 20
Terry v. Adams, 345 U.S. 4 6 1 ............................................................. 30
Testa v. Katt, 330 U.S. 386 ............................................................... 16
Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 3 3 ............................. 51
Textile Workers v. Lincoln Mills, 353 U.S. 448 ............................. 23
Thompson v. Grand IntT Brotherhood of Locomotive Engi
neers, 41 Tex. Civ. App. 176, 91 S.W. 834 .......................... 32, 38
Town of Falls Church v. Myers, 187 Va. 110, 46 S.E.2d 31 . . . . 19
Trounstine v. Bauer, Pogue & Co., 144 F.2d 379 (C.A. 2),
cert, denied, 323 U.S. 777.............................................................. 54
Tuckerton Beach Club v. Bender, 91 N.J. Super. 167, 219
A.2d 529 ............................................................................................ 29
Tyler v. Magwire, 17 Wall. 253 ................................................ 16, 17, 55
United States v. Richberg, 398 F.2d 523 (C.A. 5 ) ........................ 29
United States v. Standard Oil Co., 332 U.S. 301............................. 23
Ward v. Board of County Commissioners, 253 U.S. 17.................. 21
Washington v. Official Court Stenographer, 251 F. Supp. 945
(E.D. Pa.) ............................................................................................ 51
Wilcox v. Supreme Council of Royal Arcanum, 210 N.Y.
370, 104 N.E. 624 ........................................................................ 39
Williams v. Bruffy, 12 Otto 248 .......................................................... 33
Williams v. Georgia, 349 U.S. 375 ........................................................... 21
Wills v. Trans World Airlines, Inc., 200 F. Supp. 360 (S.D.
C a lif.).................................................................................................. 53
Wood v. Vaughan, 209 F. Supp. 106 (W.D. Va.), aff’d sub
nom. Thaxton v. Vaughan, 321 F.2d 474 (C.A. 4 ) ................26, 30
Wyandotte Transportation Co. v. United States, 389 U.S.
191....................................................................................... 51
(ix)
Yockel v. German American Bund, Inc., 20 N.Y.S.2d 774
(Sup. C t.)..................................................................................
CONSTITUTIONAL AND STATUTORY PROVISIONS:
Article VI of the Constitution................
First Amendment to the Constitution..........
Thirteenth Amendment to the Constitution .
Fourteenth Amendment to the Constitution
................ 3 ,16
3 ,1 4 ,3 4 ,3 6
3
3, 1 3 ,2 9 ,3 5 ,3 6
Civil Rights Act of 1866 (14 Stat. 27):
42 U.S.C. § 1 9 8 1 ____ 2, 3, 13, 14, 21 ,22, 23, 26, 27, 32, 33, 36, 51
42 U.S.C. § 1982 . 2, 3, 13, 14, 21 ,22, 23, 26, 27, 32, 33, 36, 50, 51
42 U.S.C. § 1988 ............................................................................... 51
28 U.S.C. § 1257(3).............................................................................. 2
28 U.S.C. § 1651(a).............................................................................. 55
28 U.S.C. § 2 1 0 6 ................................................................................... 55
Code of Virginia, 1950 (1949 ed.), § 13-220 .................................. 6
Rules of the Supreme Court of Appeals of Virginia, Rule
5:1, § 3(f), 2 Code of Virginia, 1950 (1957 Replace.
Vol.) 602 ............................................................................... 4 -5 ,19 ,20
MISCELLANEOUS: 6
6 Am. Jur., Associations...................................................................... 50
Comment, Judicial Control o f Actions of Private Associa
tions, 76 Harvard Law Review 983 ( 1 9 6 2 ) ................................ 50
Comment, Civil Actions for Damages Under the Federal Civil
Rights Statutes, 45 Texas Law Review 1015 (1 9 6 7 ) ................ 51
Outdoor Recreation Resources Review Commission, Outdoor
Recreation for America ( 1 9 6 2 ) .................................................. 24-25
Practical Builder, Vol. 29, No. 2 (February 1964).......................... 24
Urban Land Institute, Open Space Communities in the
Market Place (Tech. Bulletin 57, 1966)....................................... 24
Washington Evening Star, January 20, 1967..................................... 24
Washington Evening Star, Noon edition, April 25, 1969................ 24
Washington Post, June 12, 1967.......................................................... 24
Washington Post, March 28, 1969....................................................... 25
IN THE
SUPREME COURT OF THE UNITED STATES
O C T O B E R T E R M , 1968
No. 929
Paul E. Sullivan, et al., petitioners
v.
Little Hunting Park, Inc., et al.
T. R. F reeman, J r., et al., petitioners
v.
Little Hunting P ark, Inc., et al.
On Writ o f Certiorari to the
Supreme Court o f Appeals o f Virginia
BRIEF FOR THE PETITIONERS
PRIOR OPINIONS
The previous per curium opinion of this Court remanding
these cases to the Supreme Court of Appeals of Virginia is
reported at 392 U.S. 657 (A. 244). The opinion of the
Supreme Court of Appeals of Virginia subsequent to the
order of remand is reported at 209 Va. 279, 163 S.E.2d
588 (A. 247). The memorandum orders of the Supreme
Court of Appeals of Virginia rejecting the appeals from the
trial court were entered December 4, 1967, and are not
2
reported (A. 242, 243). The decision of the trial court in
the Sullivan case was contained in a letter to the parties
dated April 7, 1967, which is reported at 12 Race Rel. L.
Rep. 1008, and the decree was entered April 12, 1967
(A. 232-234). The trial court’s decision in the Freeman
case was contained in a letter dated April 21, 1967, which
is not reported, and the decree was entered May 8, 1967
(A. 235-236).
JURISDICTION
The judgment of the Supreme Court of Appeals of Vir
ginia was entered October 14, 1968. The petition for a writ
of certiorari was filed January 10, 1969, and was granted
April 1, 1969. The jurisdiction of this Court rests on 28
U.S.C. § 1257(3).
QUESTIONS PRESENTED
1. Whether the Supreme Court of Appeals of Virginia
properly relied upon a non-federal procedural ground as the
sole basis for refusing to accept the remand of this Court
after this Court had held that such ground was inadequate
to bar consideration of the federal questions presented by
this case.
2. Whether the Civil Rights Act of 1866 (42 U.S.C.
§§ 1981, 1982) which guarantees Negroes the same rights as
are enjoyed by white persons to make and enforce contracts
and to lease and hold property is violated when a Negro,
because of his race, is not permitted by the board of direc
tors of a community recreation association to use a mem
bership share which has been assigned to him by his land
lord as part of the leasehold estate.
3. Whether a landlord who is expelled from a commu
nity recreation association because he voices disagreement
with the directors’ racially motivated refusal to approve his
assignment of a share in the association to his Negro tenant
may obtain relief from the association’s retaliatory action
under the Civil Rights Act of 1866 (42 U.S.C. §§ 1981,
1982).
3
4. Whether the Fourteenth Amendment to the Constitu
tion of the United States is violated by a community
recreation association when it excludes from its facilities on
the basis of his race, a person who is otherwise eligible to
use them, and by a state court in sanctioning the exclusion.
5. Whether the free speech protections of the First and
Fourteenth Amendments to the Constitution of the United
States are violated by a community recreation association
when it expels a shareholder for dissenting from its discrim
inatory racial policy, and by a state court in sanctioning
the expulsion.
STATUTORY AND
CONSTITUTIONAL PROVISIONS
The statutory provisions involved are 42 U.S.C. §§ 1981
and 1982. The relevant provisions of the Constitution of
the United States are Article VI, the First Amendment, the
Thirteenth Amendment, and the Fourteenth Amendment,
Section 1. The foregoing provisions are set forth in the
Appendix, infra, pp. 57-59.
STATEMENT
A. Introduction
These cases are before the Court following the refusal by
the Supreme Court of Appeals of Virginia to accept the
remand ordered by this Court on June 17, 1968. 392 U.S.
651.1
^The petitioners at bar in the Sullivan case, in addition to Paul E.
Sullivan, are Flora L. Sullivan, his wife, and their seven minor chil
dren, William F. Sullivan, Graciela P. Sullivan, Ana I. Sullivan, Maire
Sullivan, M. Dolores Sullivan, M. Monica Sullivan, and Brigid Sullivan,
who sued by and through Paul E. Sullivan, their father and next
friend. In the Freeman case the petitioners, in addition to T. R.
Freeman, Jr., are Laura Freeman, his wife, and their two minor chil
dren, Dale C. Freeman and Dwayne L. Freeman, who sued by and
through T. R. Freeman, Jr., their father and next friend. Respond
ents in both cases, in addition to Little Hunting Park, Inc., are Mrs.
Virginia Moore, Ronald L. Arnette, S. Leroy Lennon, Raymond R.
Riesgo, Mrs. Marjorie Madsen, William J. Donohoe, Oskar W. Egger,
4
Briefly, respondent Little Hunting Park, Inc., is a Vir
ginia non-stock corporation organized for the purpose of
operating a community park and swimming pool for the
benefit of residents of certain housing subdivisions in Fair
fax County, Virginia. A person who owns a membership
share entitling him to use the association’s facilities is per
mitted under the corporate by-laws, in the event he rents
his house to another, to assign the share to his tenant,
subject to approval by the board of directors. In the
instant case the directors refused to approve such an assign
ment from Paul E. Sullivan to Dr. T. R. Freeman, Jr., solely
on the ground that Freeman and the members of his family
are Negroes. When Sullivan protested the directors’ discrim
inatory racial policy and sought to reverse their refusal to
approve the assignment, they expelled him.
Petitioners brought two suits in the state court challeng
ing on federal and state grounds the racial restriction
imposed by the directors on the assignment of the share in
the association. Additionally, Sullivan asserted the unlaw
fulness of his expulsion. Injunctive relief and monetary
damages were sought in both cases (A. 4-36). Following
the overruling of a demurrer in the Freeman case (A. 40-
41), two trials were conducted, resulting in dismissal of
both complaints. The trial judge held that the corporation
is a “private social club” with authority to determine the
qualifications of those using its facilities, including the right
to deny such use on the basis of race (A. 232, 235). The
court also held that the corporation’s expulsion of Sullivan
was permitted by its by-laws and was justified by the evi
dence (A. 232). Petitions for appeal were thereafter sub
mitted to the Supreme Court of Appeals of Virginia, which
were rejected for the stated reason that petitioners had
failed to comply with a procedural rule of that court (A.
242-243).* 2
and Milton W. Johnson, individuals who were directors of said cor
poration at times material herein.
2The Virginia court, citing its Rule 5:1, Sec. 3(f), (Appendix,
infra, pp. 58-59), stated that the appeals were “not perfected in the
5
In their first petition for a writ of certiorari filed in this
Court on March 1, 1968 (No. 1188, October Term 1967),
petitioners contended that the Virginia court’s interpreta
tion of its procedural rule to bar the appeals was arbitrary
and unreasonable—warranted neither by the facts nor the
court’s prior construction of its procedural rule. Accord
ingly, petitioners asserted that in view of the claimed viola
tions of their federally protected rights, the procedural
ground on which the state court based its decision should
be examined to determine its adequacy to bar review of the
proceeding by this Court. In a per curiam opinion ren
dered June 17, 1968, the Court granted certiorari, vacated
the judgment and remanded the case to the Supreme Court
of Appeals of Virginia for further consideration in light of
Jones v. Mayer Co., 392 U.S. 409. Sullivan v. Little
Hunting Park, Inc., 392 U.S. 657 (A. 244).
The mandate of this Court (A. 245-246) was thereafter
received by the Supreme Court of Appeals of Virginia and
on October 14, 1968, that court issued an opinion declaring
its refusal to accept the remand. The court cited as its
reason the same ground originally given for refusing to hear
the cases, i.e., petitioners’ asserted failure to perfect their
appeals from the trial court because of non-compliance
with the procedural rule (A. 247-250).
manner provided by law in that opposing counsel was not given rea
sonable 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” (A. 242, 243). The rule referred to provides that as
part of the procedure for certifying a record for appeal the reporter’s
transcript must be tendered to the trial judge within 60 days and
signed at the end by him within 70 days after final judgment. The
rule also states: “Counsel tendering the transcript . . . shall give
opposing counsel reasonable written notice of the time and place of
tendering it and a reasonable opportunity to examine the original or
a true copy of it.” 2 Code of Virginia, 1950 (1957 Replace. Vol.)
602.
6
B. Little Hunting Park, Inc.-Its purpose
and manner of operation
Little Hunting Park, Inc. was incorporated in 1954 under
the Virginia Non-Stock Corporation Law-? for the purpose,
as set forth in its certificate of incorporation, of organizing
and maintaining “a community park and playground facili
ties” for “community recreation purposes” (A. 24, 120-
121). Pursuant to this object, the corporation owns land
on which it has built and operates a swimming pool, tennis
courts and other recreation facilities for the benefit ot resi
dents of the subdivisions known as Bucknell Manor, Beacon
Manor, White Oaks, Bucknell Heights and certain adjacent
neighborhoods in Fairfax County, Virginia (A. 28, 121,
143). The corporation’s by-laws provide that shares may
be purchased by adult persons who “reside in, or who own,
or who have owned housing units” in one of the specified
subdivisions (A. 28, 121). A share entitled all persons in
the immediate family of the shareholder to use the corpora
tion’s creation facilities (A. 28, 121-122).
The by-laws limit the number of shares in the corpora
tion to 600 (A. 28, 121). There is no limit, however, to
the number of shares that an individual may own, and it is
not unusual for a person owning more than one house in
the neighborhood served by Little Hunting Park pool to
own a separate share for the use of the family occupying
each house (A. 46, 123-124). Shares may also be purchased
by institutions and corporations owning property in the
area where the swimming pool is located. Thus, a share is
owned by a church located in the neighborhood, and shares
have been owned by two real estate companies that built
and marketed the houses in Bucknell Manor and Beacon
Manor, subdivisions served by Little Hunting Park. These
two corporations have, at various times, owned at least 25
shares which they have retained for periods ranging from
5 to 7 years (A. 216-218).
§ 13-220, Code of Virginia, 1950 (1949 ed.).
3
7
The right to use Little Hunting Park’s facilities may be
acquired by purchase or by temporary assignment of a cor
porate share. The share may be purchased directly from
the corporation, from any shareholder, or, upon buying
a house in the community, from the vendor as part of the
consideration for the purchase price of the house (A. 46,
28-29, 122-123). A person residing within one of the sub
divisions served by Little Hunting Park may obtain tempo
rary assignment of a share; however, an assignment may
only be made from landlord to tenant (A. 28-29, 123,
128).4
The corporation’s by-laws have always provided that the
issuance and assignment of shares are subject to approval
by the board of directors (A. 29, 49-50, 125, 148). There
were 1,183 shares issued and 322 shares assigned during the
period from 1955 through 1966, the first 12 years of the
corporation’s existence (A. 125-126). However, with the
exception of the assignment described below to Dr. T. R.
Freeman, Jr., there is no record of any assignment ever
being denied approval by the directors (A. 127-128). One
applicant for the purchase of a share was disapproved
during that period, but there is no evidence that this was
other than because of the individual’s failure to satisfy the
geographic residence requirement of the by-laws {ibid.).
C. The corporation’s directors refuse to approve
the assignment of Paul E. Sullivan’s share
because the assignee, Dr. T. R. Freeman, Jr.,
and his family are Negroes.
From December 1950 to March 1962, Paul E. Sullivan
and his family lived in a house which Sullivan owned and
continues to own on Quander Road in the Bucknell Manor
subdivision (A. 45). In May 1955, shortly after Little
4 Regardless of whether the swimming pool and park facilities are
used by the shareholder or assignee, the owner of a share is obligated
to pay an annual assessment in order to keep his share valid (A. 46,
128).
8
Hunting Park, Inc. was organized, Sullivan purchased a
share, No. 290, for $150 {ibid.). In March 1962, Sullivan
and his family moved a short distance to another house
that Sullivan purchased located on Coventry Road in the
White Oaks subdivision where, as part of the purchase price
for the property, Sullivan acquired a second share from the
seller of the house. Share No. 925 was thereafter issued to
Sullivan by the corporation (A. 46, 78-79). After moving
to Coventry Road, Sullivan continued paying the annual
assessments on shares Nos. 290 and 925, and leased his
house on Quander Road to various tenants. In considera
tion of the rent, he assigned share No. 290 as part of the
leasehold interest (A. 46, 49). As Sullivan testified, the
lease arrangement was a “package deal . . . the house, the
yard and the pool share” (A. 46).
On February 1, 1965, Sullivan leased the Quander Road
premises for a term of one year to Dr. T. R. Freeman, Jr.
at a rent of $1,548, payable in monthly installments of
$129 (A. 46-47). The deed of lease described the property
demised as “ the dwelling located at 6810 Quander Road,
Bucknell Manor, Alexandria, Virginia 22306, and Little
Hunting Park, Inc. pool share No. 290” (PI. Ex. 3; A. 47,
177). The lease was extended in identical terms as of Feb
ruary 1, 1966, and February 1, 1967 (A. 47). Dr. Freeman
met all of the eligibility requirements for an assignee of a
share in the corporation, since he is an adult, and the house
that he leased from Sullivan is in Bucknell Manor subdivi
sion (A. 47, 131). Freeman has no disqualifications; he is
an agricultural economist with a Ph.D. degree from the Uni
versity of Wisconsin, and at the time of the events herein
was employed by the Foreign Agriculture Division of the
United States Department of Agriculture (A. 116-117). He
also holds the rank of Captain in the District of Columbia
National Guard (A. 117). Dr. Freeman and his wife and
children are Negroes {ibid.).
In April 1965, Paul E. Sullivan paid the annual assess
ment of $37 on share No. 290 and, pursuant to his obliga
9
tion contained in the lease on the Quander Road property,
completed the form prescribed by the corporation affirming
that Dr. Freeman was his tenant and therefore eligible to
receive the assignment of that share (A. 47-48). Addition
ally, Dr. Freeman supplied certain information and signed
the form, thereby doing everything required by the corpor
ation to qualify as an assignee of the share (A. 48). How
ever, the board of directors of the corporation, meeting on
May 18, 1965, refused to approve the assignment of share
No. 290 to Dr. Freeman, because he and the members of
his family are Negroes (A. 48, 51-52, 112-113, 130-131,
145-146, 155-156, PI. Ex. 12; A. 55, 188-189). On May
25, 1965, Sullivan received a letter from S. L. Lennon, the
corporation’s membership chairman, notifying him that his
assignment of share No. 290 to Dr. Freeman had been
denied approval by the board of directors; no reason was
given (PI. Ex. 7; A. 48-49, 178-179).
D. The corporation’s directors expel Paul E. Sulli
van because of his criticism of their refusal to
approve the assignment of his share to Dr.
T. R. Freeman, Jr. on the basis of race.
Sullivan, upon learning of the directors’ disapproval of
his assignment to Dr. Freeman, sought further information
concerning their action (PI. Ex. 8; A. 50, 179-180, 49). In
response to his inquiry, a delegation from the board-mem
bership chairman S. L. Lennon, John R. Hanley, a former
president and director of the corporation, and Oskar W.
Egger, a director—visited Mr. and Mrs. Sullivan at their
home on May 28, 1965, and admitted that Dr. Freeman
had been rejected solely because of his race (A. 51-53, 112-
113, 147-148, 150-151, 155, PI. Ex. 12; A. 55, 188-189).
To Sullivan, this action was shocking, and as a matter
of his religious teaching and conviction, immoral; he so
informed the delegation. Furthermore, as a resident of the
neighborhood for many years and as a member of Little
Hunting Park, Inc. since its inception, he could not believe
their assertion that the board’s action reflected the unani
10
mous view of the members of the corporation (A. 52, 54,
112-113). Nor could Sullivan in good conscience accept
the board’s offer to purchase share No. 290 which he had
contracted to assign to Dr. Freeman (A. 52).
Following this meeting, Sullivan and Dr. Freeman, who
was also his fellow parishioner, sought the advice of their
priest, Father Eugene Walsh, who suggested that the board
might reconsider its action if the directors had an oppor
tunity to meet with Dr. Freeman and consider his case on
its merits (A. 56-57). The suggestion that such a meeting
be held was rebuffed, however, by Mrs. Virginia Moore, the
corporation’s president, when Sullivan spoke to her on
June 9 (A. 57-58). At about the same time, Sullivan spoke
with several other shareholders, who, upon learning of the
board’s action, wrote letters to President Moore in which
they expressed their strong disagreement with the board’s
action in disapproving Dr. Freeman (A. 137-141). Alter
receipt of these letters, the board met on June 11, and
decided that there appeared to be “due cause” for Sulli
van’s expulsion from the corporation because of his “non-
acceptance of the Board’s decision” on the assignment of
his share “along with the continued harassment of the
board members, etc.” (PI. Ex. 13; A. 59, 190, 130, 138-
139).5
Sullivan was told of the board’s action in a letter from
President Moore dated July 7, 1965, which also informed
him that he would be given a “hearing” by the directors on
July 20, 1965 (A. 59). Because the directors refused to
postpone the hearing in order that Sullivan’s attorney could
appear with him, and because they refused to provide Sulli
van with a statement of the conduct alleged to constitute
the basis for his expulsion, Sullivan commenced a civil
action in the Circuit Court of Fairfax County to enjoin the
^The sole ground for expulsion provided under the corporate by
laws is for conduct “inimicable [sic] to the corporation’s members.”
Article III, Section 6(b). The board purported to act under this sec
tion in expelling Sullivan (A. 29, 59, 131-132).
11
hearing (PI. Ex. 19; A. 70-71, 198-200). Settlement of the
action was reached upon the corporation’s agreeing to post
pone the hearing to August 17, 1965, and to furnish a
detailed statement of the charges against him {ibid.). A
statement specifying the alleged grounds for Sullivan’s
expulsion was thereafter furnished to him (PL Exs. 9, 10,
11; A. 53-54, 180-187, 71L6
At the hearing held by the directors on August 17, no
evidence was introduced in support of any of the allega
tions against Sullivan, and he was not permitted to learn
the identity of the persons making charges against him, nor
to question them. He was also denied permission to have
a reporter present to transcribe the proceeding. He had
only the opportunity to present evidence concerning the
charges as he understood them, and to state his views
(A. 67, 71-72, 77, 97-98, 157-158). On August 24, 1965,
the board met, and unanimously voted to expel Sullivan
(A. 143). By letter of August 27, 1965, Sullivan was noti
fied by President Moore of his expulsion, and he was
tendered the then current “sale price” of his two shares,
plus prorated annual assessments on the two shares, the
total amounting to $399.34 (PI. Ex. 20; 72, 200-201, 116).
E. Relief sought
Petitioners seek injunctive relief and monetary damages
under the Civil Rights Act of 1866 (14 Stat. 27, 42 U.S.C.
§§ 1981, 1982), as well as under the First, Thirteenth and
Fourteenth Amendments. However, since the petitioners
in the Freeman case no longer reside in the area served by
Little Hunting Park, Inc., their claim is now limited solely
to compensatory and punitive damages, pursuant to the
allegations of their complaint, as the result of having been
denied access for 2 years to the community recreation
facilities operated by the corporation.7 Petitioners in the
6The allegations against Sullivan are discussed in detail, infra, pp.
39-50.
n
In June 1967, Dr. Freeman and his family left the United States
12
Sullivan case, in addition to seeking an order compelling
full reinstatement of Paul E. Sullivan in Little Hunting Park,
Inc. and reinstatement of share Nos. 290 and 925, ask for
a declaration of the invalidity of the association’s racial
policy and an injunction against its continued observance.
They also seek compensatory and punitive damages from
respondents for Paul E. Sullivan’s wrongful expulsion from
the association and the denial to them of the use of its
facilities.
SUMMARY OF ARGUMENT
1 .
The Supreme Court of Appeals of Virginia, on the sole
ground that petitioners had allegedly failed to perfect their
appeals from the trial court, refused to accept the remand
of this Court. This non-federal procedural ground was the
same reason advanced by the Virginia court initially in
refusing to hear the appeals, and this Court’s remand on
the first petition for a writ of certiorari constituted an
implicit holding that the state procedural ground of deci
sion was inadequate to bar consideration of the important
federal questions raised. This is the law of the case, there
fore, and the Virginia court by failing to adhere to it and
to comply with the order of remand, violated its duty
under the Supremacy Clause of the Constitution. On the
other hand, if the Court concludes that it has not settled
the question of the adequacy of the state ground of deci
sion, petitioners submit that they did comply with the pro
cedural rule as construed in prior decisions of the Virginia
court. Therefore, the discretionary decision of the Virginia
court in refusing to hear the appeals was plainly arbitrary
and does not foreclose this Court’s consideration of the
case in view of the important federal rights asserted by
petitioners.
for Pakistan where Dr. Freeman was to serve as Assistant Agricultural
Attache in the United States Embassy.
13
II.
The board of directors of Little Hunting Park, Inc.
refused to approve the assignment of the membership share
in the corporation to Dr. T. R. Freeman because he and his
family are Negroes, thereby denying the Freemans the same
rights as white persons to make and enforce contracts, and
to lease real and personal property, as guaranteed by the
Civil Rights Act of 1866 (42 U.S.C. §§ 1981, 1982). The
racial policy of the respondents not only denies Negroes
the right to use the community recreation facilities oper
ated by the corporation, but tends to reinforce a pattern
of racial segregation in housing, since access to such facili
ties bears an important relationship to the desirability and
market value of residential property in neighborhoods
such as those in suburban metropolitan Washington, D.C.
Negroes will naturally be discouraged from moving into
a locality where they are barred from recreation facilities
which are open to white residents of the neighborhood.
Furthermore, since Little Hunting Park, Inc. was created to
and does serve the public function of providing community
recreation facilities, a function shown to be abdicated by
local governments to private organizations, the corporation
may not, consonant with the requirements of the Four
teenth Amendment, operate on a racially segregated basis.
Finally, the state court was without authority under the
Fourteenth Amendment to sanction or give validity to the
racial bar interposed by the corporation to the assign
ment of the membership share from Sullivan to Freeman.
Shelley v. Kraemer, 334 U.S. 1.
III.
42 U.S.C. §§ 1981, 1982 not only guarantee rights of
freedom from discrimination to Negroes, but also impose
correlative obligations on persons not to treat Negroes dis-
criminatorily. Thus, if Sullivan had refused to assign his
membership share in the association to Freeman because
of the latter’s race, he would have violated the statute.
However, because he dealt with Freeman on a non
14
discriminatory basis and sought to reverse the directors’
refusal to approve the assignment so that he could fulfill
his contract to Freeman, Sullivan was expelled from the
association. Since Sullivan’s expulsion was in retaliation for
his having obeyed the dictate of the law the expulsion was
against public policy, and he should be reinstated. For the
law to sanction punishment of a person such as Sullivan for
refusing to discriminate against Negroes would be to render
nugatory the rights guaranteed to Negroes by 42 U.S.C.
§§ 1981,1982, and encourage the use and observance of racial
restrictions on contracts and property. Barrows v. Jackson,
346 U.S. 249. Furthermore, 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.
Curtis Publishing Co. v. Butts, 388 U.S. 130. Since the
operation of a community recreation facility such as Little
Hunting Park is a public function, the association which
operates such a facility may not permissibly condition the
use of its property upon the forfeiture of an individual’s
First Amendment rights. Marsh v. Alabama, 326 U.S. 501;
Amalgamated Food Employees Union Local 590 v. Logan
Valley Plaza, Inc., 391 U.S. 308. Sullivan’s expressions of
dissent from Little Hunting Park’s racial policy were well
within judicially recognized limits of permissible conduct,
and were in performance of his higher public duties as a
citizen. The false and exaggerated accusations brought by
the directors against Sullivan to justify his expulsion from
the association confirm the retaliatory motive underlying
the action. Since, as shown, Sullivan’s expulsion violated
public policy as well as constitutional principles, he is
entitled to reinstatement.
IV.
As a consequence of respondents’ actions, petitioners
have been denied access to the community recreation facili
ties operated by Little Hunting Park, Inc. They have also
15
suffered damage to their reputations and have been sub
jected to severe physical and emotional strain arising from
the humiliation, embarrassment and indignity caused by
respondents’ conduct. Petitioners, therefore, not only
should be compensated for these injuries, but respondents,
because of their malicious and unjustified conduct in mani
fest disregard of the rights of petitioners should be required
to respond in punitive damages.
V.
In view of the recalcitrance displayed by the Supreme
Court of Appeals of Virginia in refusing this Court’s prior
remand, the Court should eschew futility, and exercise its
inherent power to enter an order reversing the judgments
of the courts below, and directing the trial court to enter
an appropriate decree, including provision for such damages
as that court may fix in accordance with standards deline
ated by this Court.
ARGUMENT
I. THE SUPREME COURT OF APPEALS OF VIRGINIA
IMPROPERLY REFUSED TO ACCEPT THIS COURT’S
REMAND OF THE CASE
A. The non-federal procedural ground on which
the Virginia court based its rejection of the
remand had previously been held by this
Court to be inadequate to bar consideration
of petitioners’ asserted federal rights.
This Court, by vacating the original judgment of the
Supreme Court of Appeals of Virginia and remanding this
proceeding to that court for further consideration, impliedly
held that the non-federal ground on which the Virginia
court had rejected the original appeals was inadequate to
bar consideration of the important federal rights asserted
by petitioners. In their first petition for a writ of certio
rari in this Court, petitioners discussed in detail the ques
tion of their alleged non-compliance with the Virginia
court’s procedural rule. Petitioners related the various steps
16
which they had taken pursuant to the state rule, and
showed that they had in fact complied with its terms as
construed in prior decisions by the Virginia court. Accord
ingly, petitioners urged this Court to examine the record of
the state proceedings to determine whether the “procedural
ground” on which the Virginia court based its judgment
was “adequate to bar review by this Court,” citing Parrot
v. City o f Tallahassee, 381 U.S. 129.* Further, in their
brief in opposition to the first petition for certiorari
respondents relied solely on the contention that petitioners
had not perfected their appeals because of alleged non-
compliance with the procedural rule.
This Court’s holding, implicit in its order vacating the
judgment and remanding to the state court, that the state
ground of decision was inadequate to bar consideration of
the federal questions involved represented the law of the
case which the Virginia court was required to observe.
Tyler v. Magwire, 17 Wall. 253, 282-283; Sibbald v. United
States, 12 Pet. 488, 491-492; Durant v. Essex Co., 11 Otto
555, 556-557. However, the court refused to accept the
remand, repeating the same reason that it had given previ
ously for rejecting the appeals, namely, petitioners’ alleged
failure to comply with the procedural rule. As a conse
quence, the court failed to reconsider the case, as this
Court had directed, in light of Jones v. Mayer Co.9 By
refusing to accept this Court’s decision that the state
ground was an inadequate basis for disposing of petitioners’
rights, the Virginia court violated its duty under the
Supremacy Clause of Article VI of the Constitution. Martin
v. Hunter’s Lessee, 1 Wheat. 304. The state court’s decision
*In their petition for certiorari, petitioners also relied on N.A.A.C.P.
v. Alabama, 377 U.S. 288, 297; Staub v. City o f Baxley, 355 U.S. 313,
318-320;N.A.A.C.P. v. Alabama, 357 U.S. 449, 454-458.
9State courts, of course, are frequently called on to construe
federally created rights. See, Testa v. Katt, 330 U.S. 386, and cases
therein cited; Chesapeake & Ohio R y Co. v. American Exchange
Bank, 92 Va. 495, 23 S.E. 935, 937; Schaubach v. Anderson, 184
Va. 795, 36 S.E. 2d 539, 541 -542.
17
cannot stand, therefore, and it is appropriate for this Court
to proceed to a consideration of the merits of petitioners’
claims.70
B. The procedural ruling of the Supreme Court of
Appeals of Virginia which was the basis for its
refusal to hear this proceeding is arbitrary and
unreasonable, and inadequate to bar considera
tion of petitioners’ asserted federal rights.
If the Court concludes that it has not settled the ques
tion of the adequacy of the state ground of decision and
decides to give further consideration to that issue, the rele
vant facts and authorities are as follows:
The decree was entered in the Sullivan case by the trial
court on April 12, 1967, and in the Freeman case on May
8, 1967 (A. 233-234, 236). It is undisputed, as shown by
the affidavits of counsel filed in the trial court, and incor
porated in the record, that on the morning of June 9, 1967,
counsel for the petitioners, Mr. Brown, notified Mr. Harris,
counsel for the respondents, by telephone that he would
submit the reporter’s transcripts in the two cases to the
trial judge that afternoon (A. 238-239). Mr. Brown further
informed Mr. Harris that because of errors in the tran
scripts, he was filing motions for correction of the record,
noticing them for hearing one week hence, Friday, June 16,
1967, which was the court’s next Motion Day (A. 239).
Finally, Mr. Brown told counsel that he would request the
trial judge to defer signing both transcripts for a 10-day
period to allow time for Mr. Harris to consent to the
motions or to have them otherwise acted on by the court
(ibid.). That same day, June 9, Mr. Brown wrote Mr. Harris
to confirm their telephone conversation, and in his letter
Mr. Brown reiterated that he would request the judge not
70If the Court agrees with petitioners’ first contention that it has
previously decided that the state ground of decision was inadequate
to support the judgment, this holding presumably is not now subject
to reexamination. Tyler v. Magwire, supra, 17 Wall, at 283-284;
N.A.A.C.P. v. Alabama, 360 U.S. 240, 245, and cases cited.
18
to sign the transcripts until they had been corrected
(A. 237, 239). The afternoon of June 9, when Mr. Brown
sought to tender the transcripts to the judge, the latter was
away from his office and not expected to return that day,
so Mr. Brown left the transcripts as well as a copy of his
letter to Mr. Harris with the judge’s secretary; the judge
later ruled that the tender of the transcripts was made on
Monday, June 12, the day that he received them (A. 239,
118, 176, 231, 239). Meanwhile, motions to correct the
two transcripts were served on Mr. Harris, along with the
notice that they would be brought to hearing before the
court on Friday, June 16 (A. 239-240).
On Monday morning, June 12, the trial judge acknowl
edged to Mr. Brown over the telephone that he had received
the transcripts and the motions to correct the record
(A. 241). Pursuant to Mr. Brown’s request, he agreed to
defer signing the transcripts until the motions had been
acted on (ibid.). That same day, Mr. Harris wrote to Mr.
Brown in reference to their telephone conversation of the
preceding Friday, noting that because he did not have
copies of the transcripts he could not consent to the
requested corrections without reviewing the testimony
(A. 238).
On Friday, June 16, the judge stated in court that the
transcripts had been available in his office for one week,
since the preceding Friday, for examination, but since it
appeared that Mr. Harris had not examined them, the
motions to correct the record would not be acted on until
Mr. Harris indicated his agreement or disagreement with the
changes requested (A. 240). In order to facilitate Mr.
Harris’ examination of the transcripts, Mr. Brown lent him
the petitioners’ duplicate copies, which Mr. Harris had in
his possession from 1:20 p.m., June 16, until 6:30 p.m.,
June 19, at which time they were returned to Mr. Brown
(ibid.). Upon returning the transcripts, Mr. Harris stated'
that he had no objection to any of the corrections requested
by the petitioners or to the entry of orders granting the
motions to correct the transcripts (ibid.). Mr. Harris then
19
signed the proposed orders granting the motions which Mr.
Brown had prepared {ibid.). The proposed orders were sub
mitted to the trial judge on June 20, who thereupon
entered them, and after the necessary corrections were
made, signed the transcripts on that date {ibid.).
On the basis of the foregoing facts and relevant decisions
of the Supreme Court of Appeals of Virginia, it is clear
that petitioners fully complied with Rule 5:1, Sec. 3(f).
That Court has repeatedly held that the rule is complied
with when, as here, opposing counsel has actual notice of
the tender of the transcript to the trial judge and has
a reasonable opportunity to examine the transcript for
accuracy before it is authenticated by the judge. See
Bacigalupo v. Fleming, 199 Va. 827, 102 S.E.2d 321, 326;
Hyson v. Dodge, 198 Va. 792, 96 S.E.2d 792, 798-799;
Kornegay v. City o f Richmond, 185 Va. 1013, 41 S.E.2d
45, 48-49. In construing the rule, the Virginia court
follows the practice of considering the facts and circum
stances of each case, and on numerous occasions has over
ruled objections to appeals where, as here, it appears that
the purpose of the rule has been satisfied and the appellee
has not shown that he was “in any way prejudiced” by the
procedure followed. Stokely v. Owens, 189 Va. 248, 52
S.E.2d 164, 167.;/ The Bacigalupo case supra, involved cir
cumstances almost identical to those presented here, and
illustrates the liberal construction customarily placed by the
Virginia court on the rule in question. There the trial
judge, after ruling that the prior notice to opposing counsel
of tender had not met the requirement of reasonableness,
advised the parties that he would defer signing the tran
script for seven days to afford counsel opportunity to
examine the transcript and indicate his objections, if any.
In holding that this procedure complied with Rule 5:1, Sec. 11
11 See also, Cook v. Virginia Holsom Bakeries, Inc., 207 Va. 815,
153 S.E. 2d 209, 210; Grimes v. Crouch, 175 Va. 126, 7 S.E. 2d 115,
116-117; Town o f Falls Church v. Myers, 187 Va. 110, 46 S.E. 2d
31, 34-35; Taylor v. Wood, 201 Va. 615, 112 S.E. 2d 907,910.
20
3(f), the Supreme Court of Appeals stated (102 S.E.2d at
326):
The requirement that opposing counsel have a rea
sonable opportunity to examine the transcript sets
out the purpose of reasonable notice. If, after
receipt of notice, opposing counsel be afforded rea
sonable opportunity to examine the transcript and
to make objections thereto, if any he has, before it
is signed by the trial judge, the object of reasonable._
notice will have been attained.
It is thus clear that even if insufficient advance notice
was given to respondents’ counsel, Mr. Harris, of the tender
of the transcripts to the judge, this deficiency was cured by
the ample opportunity that Mr. Harris had after the tender
to examine the transcripts and the motions to correct the
transcripts, and to make any objections thereto. Further,
Mr. Harris’ signing of the proposed orders granting the
motions to correct the transcripts shows that he had exam
ined the transcripts and the proposed corrections, and
“waived” any further objections that he had to the proce
dure being followed. Kornegay v. City o f Richmond, supra;
Grimes v. Crouch, supra; Taylor v. Wood, supra.12
^Respondents have suggested that Mr. Harris did not have
sufficient time to examine the transcripts even after their tender to
the judge. This is baseless, however, for as shown above, the judge
noted that the transcripts were available for examination in his office
for a week prior to his consideration of the motions to correct the
record. Further, Mr. Harris had petitioners’ copies of the transcripts
in his possession for an additional 316 days, after which he voluntar
ily relinquished them and signed the proposed orders granting the
motions to correct the transcripts. Finally, since the decree of the
trial court in the Freeman case was not entered until May 8, 1967,
the 70-day period under Rule 5:1, Sec. 3 ( f ) within which the judge
was required to sign that transcript did not expire until July 17,
1967. Thus, Mr. Harris had over a month to examine the Freeman
transcript after tender, had he desired further time.
21
Although the Supreme Court of Appeals of Virginia, in
its opinion rejecting the remand from this Court, character
izes the procedural rule in question as “jurisdictional,”13 it
is clear from the Bacigalupo decision and other cases cited
above that the court exercises substantial discretion in
determining whether the rule has been complied with. The
state court thus not only ignored its own precedents in
reaching the result it did here, but under the mode of
practice that it allows, could have exercised its discretion
to hear the appeals. That court’s “discretionary decision”
to deny the appeals does “not deprive this Court of juris
diction to find that the substantive issue[s]” are properly
before it. Williams v. Georgia, 349 U.S. 375, 389; Shuttles-
worth v. City o f Birmingham, 376 U.S. 339. See also, Ward
v. Board o f County Commissioners, 253 U.S. 17, 22; and
cases cited supra, p. 16 at n. 8.
II. THE DISCRIMINATORY RACIAL POLICY OF LITTLE
HUNTING PARK, INC. VIOLATES THE CIVIL RIGHTS
ACT OF 1866 (42 U.S.C. §§ 1981, 1982)
On the basis of the Court’s recent decision in Jones
v. Mayer Co., supra, 392 U.S. 409, it is clear that the dis
crimination inflicted by respondents on T. R. Freeman, Jr.
and his family because the Freemans are Negroes, deprived
the Freemans of rights secured by 42 U.S.C. §§ 1981, 1982.
Although the Court in the Jones case dealt principally with
§ 1982, since both § 1981 and § 1982 derive from a single
clause of Section 1 of the Civil Rights Act of 1866 (14
Stat. 27), it is evident that they must be given comparable
scope. Thus, like the right to “purchase [and] lease . . .
real and personal property” the right to “make and enforce
contracts” without discrimination on the basis of race is
not merely an assurance against hostile state action but is
a guarantee against “interference from any source whatever,
whether governmental or private.” Jones v. Mayer Co.,
supra, 392 U.S. at 423-424. Here, also Congress meant
^ And see Snead v. Commonwealth, 200 Va. 850, 108 S.E. 2d
399, 402.
22
exactly what it said—that it intended “to prohibit all
racially motivated deprivations of the rights enumerated in
the statute . . . ” Id. at 426, 436 (emphasis in original).
And it equally follows that “ the statute thus construed, is
a valid exercise of the power of Congress to enforce the
Thirteenth Amendment.” Id. at 413. On its face, there
fore, § 1981 prohibits all private racially motivated conduct
which denies or interferes with a Negro’s right to make and
enforce a contract.
The complaint in the Freeman case embodies two causes
of action: one alleging wrongful interference by respond
ents with the performance of the deed of lease between Sulli
van and Freeman, and the other asserting wrongful depriva
tion by respondents of Freeman’s full use and enjoyment
of the leasehold estate demised to Freeman under the deed
of lease. Here the record shows that prior to Freeman’s
becoming a tenant in Sullivan’s house, Sullivan had entered
into the same type of lease agreement, including assignment
of the pool share, with other tenants, but it was only in the
case of Freeman, the Negro, that respondents interfered
with the performance and prevented full use and enjoyment
of the leasehold estate. By disapproving the assignment of
Share No. 290 to Freeman and thus preventing perform
ance of the contract between Sullivan and Freeman solely
because of the latter’s race, respondents violated Freeman’s
right under § 1981 to make and enforce a contract under
the same conditions as white persons.
Freeman’s rights under § 1982 also were violated by
respondents. Share No. 290 was an integral part of the
leasehold interest conveyed from Sullivan to Freeman and
represented part of the value for which Freeman paid the
rent specified in the lease. Therefore, respondents’ refusal
to approve the assignment infringed on Freeman’s right under
§ 1982 to lease and hold real property without restriction
on the basis of his race. In addition, it is evident that
under common law principles a membership share in Little
Hunting Park, Inc., a non-stock corporation, itself consti-
23
tutes personal property within the meaning of § 1982.
Hyde v. Woods, 4 Otto 523; Page v. Edmunds, 187 U.S.
596; Baird v. Tyler, 185 Va. 601, 39 S.E.2d 642, 645-
646.;4 Accordingly, by refusing to permit the assignment
of share No. 290 from Sullivan to Freeman pursuant to
their lease agreement, respondents violated additional rights
secured to Freeman under that section.
From the foregoing it is seen that respondents’ discrimi
nation against Dr. Freeman because of his race falls within
the express terms of both § 1981 and § 1982. But more
than a simple denial of access to a community swimming
pool is involved, for here, as with the plaintiffs in the Jones
case, the discrimination suffered by Dr. Freeman bears
directly on his choice of a home for himself and his family.
The racial restriction erected by Little Flunting Park cannot
help but discourage the Freemans and other Negro families
from wanting to live in that neighborhood. White residents
of the neighborhood, because they can obtain shares in the
association through purchase or by assignment from their
landlords, have access to local recreation facilities from
which their Negro neighbors are barred.
There can be little doubt that the availability of neigh
borhood recreation facilities such as those provided by
Little Hunting Park—a swimming pool, tennis courts and
park—substantially enhances the desirability and value of
^Whether or not a Little Hunting Park membership share is
personal property under the law of Virginia is not necessarily
controlling here. In light of the Jones case, the federal courts will be
called upon to develop a body of law as to what, for example, con
stitutes “property” under § 1982 and a “contract” under § 1981.
Such determinations should not be made subject to the law of the
various state jurisdictions. In order that there be uniformity in the
disposition of matters that are within the area of federal legislative
jurisdiction, the fashioning and application of federal law is appropri
ate. Clearfield Trust Co. v. United States, 318 U.S. 363; Textile
Workers v. Lincoln Mills, 353 U.S. 448, 457; Howard v. Lyons, 360
U.S. 593, 597. See also United States v. Standard Oil Co., 332 U.S.
301, 307.
24
nearby residential property.7-5 The real estate advertise
ments in any metropolitan newspaper reveal the emphasis
that is placed on the accessibility of a swimming pool in
a neighborhood, and attest to the great importance that is
attached to this feature in marketing homes.75 76
Privately established recreation associations organized
principally to build and operate neighborhood swimming
pools have become particularly common in localities where
other water recreation facilities such as public swimming
pools and beaches are not readily accessible. Thus, in the
Washington metropolitan area of Northern Virginia, where
municipally operated swimming pools are virtually non
existent,77 * there are about 50 community pool associations
such as Little Hunting Park, Inc. and in all the Washington
suburbs, including those in Northern Virginia and Maryland,
there are over 105 pools of this type.75 This number
understandably increases each year as the suburban popula
tion increases and new housing subdivisions are opened.79
75 Expert evidence to this effect was offered by petitioners in the
court below (A. 99-108, 223-228). Also see, Urban Land Institute,
Open Space Communities in the Market Place (Tech. Bulletin 57,
1966) 41-42, 47-50 (PI. Ex. 28; A. 103-106, 253-260).
76“ [T]he community swimming pool is considered by most
builders as one of their most popular sales appeals to people of all
ages and incomes.” 29 Practical Builder No. 2, p. 94 (Feb. 1964)
(PI. Ex. 29; A. 106-108, 261-266). In one 12-page advertising sup
plement in The (Washington) Evening Star, issue of January 20, 1967,
there were over 50 advertisements for apartments and houses in which
prominent mention was made of the swimming pool facilities (PI.
Ex. 30; A. 107-108).
77In the Northern Virginia suburbs, with a population of nearly
700,000 persons, there are onl two municipally owned pools and
one lake for swimming (A. 102).
18The Washington Post, p. A 20, June 12, 1967. A recent survey
showed 42 community pool associations operating in Montgomery
County, Maryland. The (Washington) Evening Star, p. B-l, Noon
edition, April 25, 1969.
79In a recent study, authorized by Congress, the Outdoor
Recreation Resources Review Commission concluded that “by the
25
Thus, it is obvious that Negroes will be discouraged from
moving into a neighborhood where the neighborhood recre
ation association denies them access to its facilities because
of their race.20 Conversely, a property owner, such as Paul
Sullivan, owning a share in such an association will be
deterred from selling or renting his house to a Negro,
because the Negro will be ineligible for purchase or assign
ment of the share. Since as shown, a house has greater
market value if the purchaser or tenant is eligible to use the
neighborhood recreation facilities, if a Negro is able to
obtain housing in a community where he is barred from the
swimming pool association in which the seller or landlord
is a shareholder, there is an immediate loss in the value of
the residence which must be borne by one of the parties
to the transaction. Thus, an owner in these circumstances
will either refuse to sell or rent to a Negro or else will
require him to pay a higher price than the property is
worth absent access to the recreation facility. And if this
pattern is widespread, and if, as the record shows to be
true for Northern Virginia, local governments are unwilling
to duplicate privately established community recreation
facilities with municipally operated facilities, Negroes will
be deterred from purchasing or renting housing in whole
sections of the State. Bearing in mind the Congressional
purpose of assuring Negroes that their rights under the
Thirteenth Amendment include “the freedom to buy what
year 2000 swimming will be the most popular single outdoor
recreation activity.” O.R.R.C., Outdoor Recreation for America, p.
172 1962).
^Increasing the availability of housing for Negroes in the suburbs
is generally recognized as an important step toward alleviating the pres
sures felt today in the ghettos of most of our cities. Although there
has been some migration of Negroes out of the center city into the
suburbs of Washington, D.C., it has been slight. The Ford Founda
tion recently made a grant of $300,000 to establish a Housing
Opportunities Council which will have a full-time staff whose
function will be to encourage and aid Netroes wishing to find housing
in the Washington suburbs. The Washington Post, p. B 1, March 28,
1969.
26
ever a white man can buy, the right to live wherever
a white man can live” (Jones v. Mayer Co., 392 U.S. at
443), a declaration by this Court that the discriminatory
racial policy of Little Hunting Park, Inc. falls within the
ambit of §§ 1981, 1982 is fully warranted.27
To agree with petitioners’ contention that §§ 1981, 1982
are applicable to this case it is not necessary for the Court
27 Even under the view of §§ 1981, 1982 taken by the dissenters in
Jones v. Mayer Co., Little Hunting Park’s racial policy is invalid. In
the dissenting opinion it is stated that the most that can be said with
assurance about the intended impact of the 1866 Civil Rights Act on
private discrimination is that it was envisioned as prohibiting “official,
community-sanctioned discrimination in the South, engaged in pursu
ant to local ‘customs’ which in the recent time of slavery probably
were embodied in laws or regulations.” 392 U.S. at 475. Applying
that principle to the instant case, it is significant that historically and
continuing to this day, numerous aspects of Virginia’s governmental
and political system have been designed to foster and maintain a
racially segregated society in the State. An extensive scheme of con
stitutional and statutory provisions has been adopted over the years
which inject racial discrimination into many phases of public and
private life. The “official command” to segregate contained in such
enactments, when heard by private citizens such as the directors of
Little Hunting Park, Inc. “has at least as much coercive effect as an
ordinance.” Lombard v. Louisiana, 373 U.S. 267, 273; and see Reit-
man v. Mulkey, 387 U.S. 369, 380. The index to the Virginia Code
contains three pages of references to constitutional and statutory
provisions requiring segregation of the races. Some of these laws have
been invalidated through litigation. See, e.g., Loving v. Virginia, 388
U.S. 1 (anti-miscegenation statutes); Hamm v. Virginia State Board o f
Elections, 230 F. Supp. 156 (E.D. Va.), aff’d, 379 U.S. 19 (laws
requiring various public records to be kept separately by race);
Blackwell v. Harrison, 221 F. Supp. 651 (E.D. Va.) (racial segregated
seating law). Other such laws remain unchallenged. In any event, so
long as segregation laws remain on the books they ostensibly reflect
the policy of the State to be heeded by its citizens. For discussion
of Virginia’s official policy of maintaining segregated park and recre
ational facilities throughout the State, see Tate v. Department o f
Conservation and Development, 133 F. Supp. 53, 55-57 (E.D. Va.),
affd, 231 F.2d 615 (C.A. 4), cert, denied, 352 U.S. 838; Wood v.
Vaughan, 209 F. Supp. 106, 111-113 (W.D. Va.) affd, sub nom.
Thaxton v. Vaughan, 321 F.2d 474 (C.A. 4).
27
decide whether every transaction or relationship which could
be characterized as “contractual” brings § 1981 into play,
or whether everything which could be characterized as
“property” is covered by § 1982. The issue here is more
limited. For petitioners merely assert that when an organi
zation holds itself out as offering to the community at large
the opportunity through membership to enjoy its services
and facilities, the statute grants all citizens the same right
as the organization makes available to white citizens as a
class, that is, the right to accept the organization’s offer to
enjoy the benefits of membership. On this basis, there can
be no question but that Little Hunting Park, Inc. is subject
to the statute. The evidence shows that the association was
organized and incorporated for the express purpose, as
stated in its certificate of incorporation, of operating “a
community park and playground facilities” for “community
recreation purposes” (A. 24, 120). Consistent with this
purpose, the association’s recreation facilities were operated
for 11 years—until Dr. Freeman applied to use them—on a
completely open basis, available to everyone living in the
geographic area defined in the by-laws. The association has
never exercised any policy of selectivity in passing on appli
cants for membership and assignment—the sole criterion for
approval being residence within the prescribed area. More
over, membership in the association is not even personal to
the individual shareholder, since a person is permitted to
own multiple shares for investment purposes, and shares
may even be held by corporate bodies such as real estate
development companies and churches.
Thus, it is evident that the trial court’s characterization
of Little Hunting Park as a “private social club” (A. 232,
235) is neither supported by the record nor dispositive of
the question whether the association falls under §§ 1981,
1982. Little Hunting Park has never pursued a policy of
exclusiveness, the usual characteristic of a private social
club. Unlike the conventional social club, fraternal order
or similar organization, an individual’s personal compati
bility with other members is not a qualification for mem
28
bership in Little Hunting Park, Inc.22 In conventional
social or fraternal organizations—those having as their prin
cipal purpose the fostering of fellowship and camaraderie-
friendship, tradition and common social, educational or
occupational backgrounds play a major role in determin
ing membership eligibility. In the case of Little Hunting
Park, Inc., however, the sole determinant of membership
eligibility is residence within the specified geographic area;
within that area, it “is open to every white person, there
being no selective element other than race.” “Evans v. New
ton, 382 U.S. 296, 301. The Court recently held that an
establishment was not a private club which “uniformly de
nied membership” to Negroes but was “open in general” to
all “members of the white race.” Daniel v. Paul, 37 U.S.L.
Week 4481, 4482 (June 2, 1969). As the Fourth Circuit
has stated, “ [S] erving or offering to serve all members of
the white population within a specified geographic area is
certainly inconsistent with the nature of a truly private
22The trial court disregarded fundamental principles of corporation
law by attributing to Little Hunting Park’s directors the power to
create racial or personal qualifications for members. For it is
elementary that the powers of the directors to manage a corporation
devolve from the purposes for which the corporation is created as
set forth in its charter. Hence, in the absence any provision in
Little Hunting Park’s articles of incorporation derogating from the
“community recreation” purposes of the corporation, the directors
may no more transform the corporation into a “private social club”
by barring the use of its facilities to a certain class o f residents o f the
community than they may divert corporate property to other than
recreational purposes; to do so would certainly be ultra vires. Byrne
v. Schuyler Elec. Mfg. Co., 65 Conn. 336, 31 Atl. 833, 836. Rather,
it is mandatory upon the directors to carry out the purposes of the
corporation by admitting to membership any applicant who “possesses
the qualifications prescribed by the constitution and by-laws of the
association.” Porterfield v. Black Bill & Doney Parks Water Users’
Ass’n, 69 Ariz. 110, 210 P.2d 335, 338-339. And see,Meyers v. Lux,
76 S.D. 182, 75 N.W.2d 533, 536; Morris v. Hussong Dyeing Machine
Co., 81 N.J. Eq. 256, 86 Atl. 1026, 1028-1029; Carlson v. Ringgold
County Mutual Telephone Co., 252 Iowa 748, 108 N.W.2d 478, 484-
485.
29
club.” Nesmith v. Young Men’s Christian Ass’n o f Raleigh,
N.C., 397 F.2d 96, 102. See also, Rockefeller Center Lunch
eon Club, Inc. v. Johnson, 131 F. Supp. 703, 705 (S.D.
N.Y.); United States v. Richberg, 398 F.2d 523 (C.A. 5).
Nor is the missing element of selectivity supplied by the
fact that under the by-laws of Little Hunting Park the pur
chase and assignment of shares is conditioned on approval
by the board of directors. For the record shows that race
is the only factor considered by the directors in exercising
their right of approval. In this respect, the situation is no
different than in Shelley v. Kraemer, supra, 334 U.S. 1, where
the property owner similarly did not have an unlimited right
to transfer his property. It too was subject to a racially re
strictive covenant which was a “condition precedent” to
the right of sale. 334 U.S. at 4. The exercise, therefore,
by the board of directors of its right to approve assignments
and determine membership eligibility on the basis of race
amounts to nothing more than the explicit racial covenant
in Shelley. Thus, whether expressly denominated a racial
covenant or a right of approval is of no moment;^ it is
a racial restriction on the use of the association’s recrea
tional facilities, and hence is invalid under the 1866 Act.
III. THE FOURTEENTH AMENDMENT IS VIOLATED
BY THE DISCRIMINATORY RACIAL POLICY OF
LITTLE HUNTING PARK, INC., AND BY THE
STATE COURT IN SANCTIONING IT
In addition to the statutory grounds for reversal of the
court below, there are compelling constitutional reasons
why its decision should not stand. It is well recognized that
where facilities are built and operated primarily for public
benefit and their operation is essentially a public function,
they are subject to the limitations to which the State is 23
23Lauderbaugh v. Williams, 409 Pa. 351, 186 A.2d 39;Mountain
Springs A ss’n v. Wilson, 81 N.J. Super. 564, 196 A.2d 270, 275-277;
Tuckerton Beach Club v. Bender, 91 N.J. Super. 167, 219 A.2d 529;
and see Harris v. Sunset Islands Property Owners, Inc., 116 So.2d 622
(Fla.).
30
subject and cannot be operated in disregard of the Consti-
tuion. Evans v. Newton, supra, 382 U.S. 296\ Marsh v. Ala
bama, 326 U.S. SOX', Amalgamated Food Employees Union
Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308.24
Here, the record shows that Little Hunting Park, like Bacons-
field Park which was the subject of Evans v. Newton, per
forms the “public function” of providing “mass recreation”
(382 U.S. at 302) for members of the community and, ac
cordingly, may not be operated on a racially segregated
basis.25 Moreover, the racial policy adopted by Little Hunt-
Park has an effect on the community which extends sub
stantially beyond what was involved in Evans v. Newton.
For, rather than being a mere prohibition against the use
of a public recreation facility by Negroes, the racial policy
of Little Hunting Park, as we have seen supra, pp. 23-25,
because of its effect on the desirability and value of homes
in the area, is very likely to influence the racial composition
of the neighborhood which the association serves.
In this respect the instant case is much like the restric
tive covenant cases, Shelley v. Kraemer, supra, 334 U.S. 1,
and Barrows v. Jackson, supra, 346 U.S. 429. Here, as in
those cases, a privately organized group of individuals, by
asserting its own discriminatory racial policy, is able in effect
to impose a racially restrictive system on an entire neighbor
hood. This leads, of course, to the creation of Negro and
white ghettos. The discriminatory racial policy of Little
Hunting Park, therefore, no less than the discriminatory
policies of those who enter into racial covenants, creates a
24 Accord: Terry v. Adams, 345 U.S. 461; Public Utilities Comm’n
v. Poliak, 343 U.S. 451; Simkins v. Moses H. Cone Memorial Hospital,
323 F.2d 959, 968 (C.A. 4), cert, denied, 376 U.S. 938.
25In Evans v. Newton, the Court found it unnecessary to reach the
question of whether Georgia, through legislative enactments, had
facilitated the establishment of segregated parks. 382 U.S. at 300-
301, n. 3. Virginia’s official policy of maintaining segregated parks
and recreation facilities is discussed in the Tate and Wood cases cited
supra, p. 26, n. 21.
31
system which is the equivalent of, and has the effect of, a
racial zoning ordinance. It is “as if the State had passed a
statute instead of leaving this objective to be accomplished
by a system of private contracts, enforced by the State.”
Bell v. Maryland, 378 U.S. 226, 329 (dissenting opinion of
Justice Black), quoted in Reitman v. Mulkey, 387 U.S. 369,
385 (concurring opinion of Justice Douglas). Cf. Buchanan
v. Warley, 245 U.S. 60.
Finally, it is noteworthy that this case, like Shelley v.
Kraemer, involves an agreement voluntarily entered into by
a white property owner and a Negro attempting to acquire
property, with attempted intervention by a third party seek
ing to prevent performance. Shelley and Barrows make clear
that where, as here, “both parties are willing parties” to such
a contract a state court may not give legitimacy to the ef
fort to defeat the contract “on the grounds of the race or
color of one of the parties.” Bell v. Maryland, supra, 378
U.S. at 331 (dissenting opinion of Justice Black) (emphasis
in original). It is likewise immaterial that the party before
the court who relies on the racial restriction asserts it as a
basis for seeking affirmative relief or as here, raises it as a
defense. There is “no significant difference between the re
strictive covenant being used as a basis for an injunction by
the proponent of such covenant and its assertion as a de
fense.” Spencer v. Flint Memorial Park Ass’n, 4 Mich. App.
157, 144 N.W. 2d 622, 626. Accord: Clifton v. Puente,
218 S.W. 2d 272, 274 (Tex. Civ. App.). And see, Rice v.
Sioux City Memorial Cemetery, 394 U.S. 70, 80 (dissent
ing opinion).
32
IV. SULLIVAN S EXPULSION FROM THE ASSOCIATION
MAY NOT BE PERMITTED TO STAND, BECAUSE IT
WAS IN RETALIATION FOR HIS EFFORT TO DEAL
WITH FREEMAN ON A NON-DISCRIMINATORY
BASIS, AS REQUIRED BY §§ 1981,1982
As well as creating rights for Negroes to be free from
discriminatory treatment, 42 U.S.C. §§ 1981, 1982 impose
correlative obligations on persons not to deal discriminator-
ily with Negroes. Thus, if Sullivan had refused to assign
share No. 290 to Freeman because of the latter’s race he
would have violated the statute.
Sullivan was expelled from the corporation, and his two
shares were revoked, however, as a direct result of his hav
ing dealt with Freeman, as the statute requires, on a non-
discriminatory basis, and because he sought to reverse the
directors’ discriminatory refusal to approve the assignment
in order that he could perform his obligation to Freeman
under their contract. The expulsion was unquestionably
retaliatory, and as “a matter of statutory construction and
for reasons of public policy . . . cannot be permitted.”
Edwards v. Habib, 397 F.2d 687, 699 (C.A.D.C.) and cases
cited therein at n. 38. Sullivan “was expelled from the asso
ciation for doing that which the law . . . not only authorizes
but encourages.” State ex rel. Waring v. Georgia Medical So
ciety, 38 Ga. 608, 629, 95 Am. Dec. 408. The action was
therefore contrary to public policy, and judicial precedent
warrants an order of reinstatement. Ibid. Accord: Malibou
Lake Mountain Club v. Robertson, 219 Cal. App.2d 181, 33
Cal. Rptr. 74, 77; Spayd v. Ringing Rock Lodge No. 665,
270 Pa. 67, 113 Atl. 70; Bernstein v. Alameda-Contra Costa
Medical Ass’n, 139 Cal. App.2d 241, 293 P. 2d 862, 865;
Thompson v. Grand International Brotherhood o f Locomo
tive Engineers, 41 Tex. Civ. App. 176, 91 S.W. 834, 838;
Manning v. Klein, 1 Pa. Super. 210. Cf. National Labor Re
lations Board v. Industrial Union o f Marine and Shipbuilding
Workers, 391 U.S. 418, 424-425; Higgins v. American So
ciety o f Clinical Pathologists, 51 N.J. 191, 238 A.2d 665,
671. Nash v. Florida Industrial Commission, 389 U.S. 235.
33
Furthermore, as the Court recognized in Barrows v. Jack-
son. supra, 346 U.S. 249, to sanction “punishment” of a
person because he has refused to discriminate would be to
render nugatory the rights of Negroes to be free from dis
crimination. The Court stated, “The law will permit re
spondent to resist any effort to compel her to observe such
a covenant . . . since she is the only one in whose charge and
keeping reposes the power to continue to use her property
to discriminate or to discontinue such use.” 346 U.S. at
259. Similarly here, for the law to sanction Sullivan’s pun
ishment by expulsion because of his refusal to discriminate
would render Freeman’s rights under §§ 1981, 1982 illusory
indeed. As the Barrows case also teaches, there is no ques
tion of Sullivan’s standing to rely on rights guaranteed by
these statutory provisions merely because they literally de
clare rights for non-whites only. Sullivan has standing to
rely on the rights of the Negro, Freeman, since Sullivan is
“the only effective adversary” (346 U.S. at 259) capable
of vindicating those rights in this litigation resulting from
his retaliatory expulsion from the association for having
dealt with Freeman nondiscriminatorily.
V. SULLIVAN’S CONSTITUTIONAL RIGHT OF FREE
SPEECH WAS VIOLATED BY LITTLE HUNTING
PARK, INC. IN EXPELLING HIM BECAUSE HE DIS
SENTED FROM ITS DISCRIMINATORY RACIAL POL
ICY, AND BY THE STATE COURT IN SANCTIONING
THE EXPULSION
Constitutional considerations provide further warrant for
reversal of the state court’s affirmance of Sullivan’s expul
sion from the corporation. If the directors’ summary expul
sion of Sullivan because of his dissent from their racial
policy is allowed to stand, it will have the effect of grant
ing them an immunity from criticism to which they are not
constitutionally entitled. By assuming roles of leadership in
Little Hunting Park, Inc.—an organization devoted to develop
ing and operating a community recreation facility—the di
rectors necessarily became parties to any matters of public
34
interest or public controversy in which the association might
become involved. It is evident that whatever way the direc
tors had acted with respect to the Freeman assignment, then-
decision was likely to be a subject for comment and criti
cism by members of the association, as well as other persons
in the community. The directors were not, however, for
constitutional reasons entitled to expel Sullivan because he
voiced opposition to their discriminatory racial policy.
Since, as we have shown above, the public function per
formed by Little Hunting Park, Inc. makes it subject to
constitutional limitations, forfeiture of an individual’s rights
under the First Amendment may not be made a condition
of use of its facilities. Marsh v. Alabama, supra, 326 U.S.
501; Amalgamated Food Employees Union Local 590 v.
Logan Valley Plaza, Inc., supra, 391 U.S. at 308; and see
Pickering v. Board o f Education, supra, 391 U.S. 5 63.26
Further, the state court’s sanctioning of Sullivan’s expul
sion from the recreation association because of his criticism
of the directors’ erection of a racial barrier to the use of
its facilities is contrary to this Court’s decision in Curtis
Publishing Co. v. Butts, supra, 388 U.S. 130, holding that
the First Amendment protects criticism of “public figures”
who participate in events of public concern to the commu
nity. As was stated there (in the concurring opinion of Chief
Justice Warren writing for a majority of the Court) with
respect to the urbanized society that we know today:
In many situations, policy determinations which tra
ditionally were channeled through formal political
institutions are now originated and implemented
^Courts have frequently been guided by the First Amendment in
protecting the right of dissent within voluntary associations. See, e.g.,
Crossen v. Duffy, 90 Ohio App. 252, 103 N.E.2d 769, 778;Mitchell
v. International A ss’n o f Machinists, 196 Cal. App. 2d 796, 16 Cal.
Rptr. 813, 816-820, Madden v. Atkins, 4 N.Y.2d 283, 151 N.E.2d 73,
78; Gallaher v. American Legion, 154 Misc. 281, 277 N.Y.S. 81, 85,
affd, 242 App. Div. 604, 271 N.Y.S. 1012; Hurwitz v. Directors
Guild o f America, 364 F.2d 67, 75-76 (C.A. 2), cert, denied, 385
U.S. 971.
35
through a complex array of boards, committees,
commissions, corporations and associations, some
only loosely connected with the Government. This
blending of positions and power has also occurred
in the case of individuals so that many who do not
hold public office at the moment are nevertheless
intimately involved in the resolution of important
public questions or by reason of their fame, shape
events in areas of concern to society at large.
Viewed in this context then, it is plain that al
though they are not subject to the restraints of the
political process, “public figures,” like “public offi
cials,” often play an influential role in ordering so
ciety. 388 U.S. at 163-164.
There can be little doubt that Little Hunting Park, Inc.
plays the type of public role in the community that is re
ferred to by the Chief Justice, and that the directors of the
corporation are “public figures,” as he used the term in the
Curtis Publishing case. Further, as that case holds, it is vio
lative of the First Amendment for the State to lend its judi
cial processes to vindicate the aggrievement asserted by a
public figure against critics of his manner of participating
in events of public interest. Applied to the instant case,
this means that the Virginia court could not sanction the
directors’ action in expelling Sullivan from the association
merely because in refusing to acquiesce in their discrimina
tory racial policy, he exercised his right to speak out criti
cally on the issue. By holding that Sullivan’s dissent from
the association’s policy constituted justification for his ex
pulsion, the trial court invoked a standard of state law which
had the effect of depriving Sullivan of rights protected by
the First Amendment. Pickering v. Board o f Education, supra,
391 U.S. 563. This clearly is state action falling within
the ambit of the Fourteenth Amendment. “The test is not
the form in which state power has been applied, but what
ever the form, whether such power has in fact been exer
cised.” New York Times Co. v. Sullivan, 376 U.S. 254, 265.
Accord: Curtis Publishing Co. v. Butts, supra, 388 U.S. at
36
146-155. Further, to permit the state court to sanction
Sullivan’s expulsion from Little Hunting Park, Inc. for pro
testing Freeman’s exclusion from the community park would
be to allow the State to “punish” him for his failure to
abide by the directors’ determination that he must “discrim
inate against non-Caucasians in the use of [his] property.
The result of that sanction by the State would be to encour
age” the use and observance of such racial restrictions on
property. Barrows v. Jackson, supra, 346 U.S. at 254. See
also Reitman v. Mulkey, supra, 387 U.S. at 380-381.
VI. SULLIVAN’S EXPRESSIONS OF DISSENT FROM
THE RACIAL POLICY OF LITTLE HUNTING
PARK, INC. WERE WELL WITHIN PERMISSIBLE
LIMITS OF ACTIVITY FOR A MEMBER OF SUCH
AN ASSOCIATION.
The facts of this case leave no doubt, as petitioners urge
supra, pp. 32-33, that Sullivan’s expulsion from Little
Hunting Park, Inc. was in retaliation for his attempts to
reverse the directors’ discriminatory racial policy. Whether
Sullivan’s right of redress derives from §§ 1981, 1982, or
the First and Fourteenth Amendments, in either event, as
we show below, his conduct that precipatated his expulsion
did not exceed the judicially recognized latitude allowed a
member of such a voluntary association who disagrees with
its policies. As we also show below, by bringing various
false and exaggerated accusations against Sullivan in an
attempt to justify his expulsion, the directors further
demonstrated their purpose to retaliate against this man for
his opposition to their discrimination against Freeman.
A. The judicially approved limits
of membership conduct.
Expulsions of individuals from private associations for
reasons contravening public policy have frequently been the
occasion for courts to exercise jurisdiction to compel rein
statement. Thus, it is recognized as contrary to public
policy, and hence beyond an association’s power, to
discipline a member for exercising a right or performing a
i
37
duty as a citizen. In the early case of State ex rel. Waring
v. Georgia Medical Society, supra, 38 Ga. 608, 95 Am. Dec.
408, it was held that a member of a medical society who
was expelled for being the surety on a Negro’s bond was
void as contrary to public policy because the member’s
action accorded with his responsibility as a citizen. See
also, Manning v. Klein, supra, 1 Pa. Super. 210 (reporting
violations by fellow union members of Sunday closing laws
is citizen’s responsibility and not a valid reason for expul
sion from the union). Likewise, the right of a member to
participate publicly in political or governmental activity,
even though he may take positions that are contrary to the
association’s official policy has been upheld. Mitchell v.
International Ass’n o f Machinists, supra, 196 Cal. App. 2d
796, 16 Cal. Rptr. 813, (campaigning in favor of right-to-
work law); Spayd v. Ringing Rock Lodge No. 665, supra,
270 Pa. 67, 113 Atl. 70 (petitioning legislature for repeal
of a law which the union supported); Abdon v. Wallace, 95
Ind. App. 604, 165 N.E. 68 (giving testimony contrary to
union policy at hearing conducted by Interstate Commerce
Commission); Schneider v. Local Union No. 60, 116 La.
270, 40 So. 700 (failure to follow union’s voting instruc
tions as a member of a public body). Accord: Ray v.
Brotherhood o f Railroad Trainmen, 182 Wash. 39, 44 P.2d
787; Stein v. Marks, 44 Misc. 140, 89 N.Y.S. 921. Thus,
the general rule is that an association may not exercise its
disciplinary powers to inhibit the fundamental constitu
tional right of citizens “freely to publish their sentiments
on all subjects.” Gallaher v. American Legion, supra, 154
Misc. 281, 277 N.Y.S. 81, 85, aff’d, 242 App. Div. 604,
271 N.Y.S. 1012.
The right of a member to disagree with an association’s
policies even to the point of instituting a legal suit against
it has also been sustained. Despite the ultimate harm that
such action might do to the association, in view of the
right of every citizen to use the courts, it has been held
that “ [t ]he prosecution, in good faith, of a legal right for
redress even if unsuccessful, is not a ground for expulsion
38
from an organization . . Malibou Lake Mountain Club v.
Robertson, supra, 219 Cal. App. 2d 181, 33 Cal. Rptr. 74,
77. Accord: Polin v. Kaplan, 257 N.Y. 277, 177 N.E. 833,
835 (“It was the absolute right of the plaintiffs to bring the
suit, whether they could successfully maintain it or not,
and they might not be expelled for having so done.”). Nor
may a member be expelled for testifying as a witness in a
legal proceeding adversely to the interests of the association.
Thompson v. Grand International Brotherhood o f Locomo
tive Engineers, supra, 41 Tex. Civ. App. 176, 91 S.W. 834,
838\ Angrisani v. Steam, 167 Misc. 731, 3 N.Y.S. 2d 701,
702, aff’d, 255 App. Div. 975, 8 N.Y.S. 2d 997.
It is not enough for respondents to defend Sullivan’s
expulsion on the ground that some of the directors were
personally offended by statements that he made about their
disapproval of the Freeman assignment. Since Sullivan’s
actions and statements were not contrary to, or prejudicial
to, the basic purposes and objectives of the recreation asso
ciation, the mere fact that his conduct was offensive,
disparaging or even prejudicial to fellow members is not
justification for his expulsion. Allnut v. High Court o f
Foresters, 62 Mich. 110, 28 N.W. 802, 804; Barry v. The
Players, 147 App. Div. 704, 132 N.Y.S. 59; Bernstein v.
Alameda-Contra Costa Medical Ass’n, supra, 139 Cal. App.
2d 241, 293 P.2d 862, 865; Miller v. Builders’ League o f
New York, 29 App. Div. 630, 53 N.Y.S. 1016; Pickering v.
Board o f Education, supra, 391 U.S. at 571.27 Members
have wide latitude in criticizing or seeking to change associ
ation policies, even though the judgment and motives of
officers or directors may be called into question. Offensive
though this may be to the leadership, if a charge of
7 7 Alt hough in Virginia an association member may be expelled for
conduct which violates the “fundamental objects and purposes” of
the organization, the mere fact that a member of a retail grocers’
association harmed a fellow member in the course of a business trans
action was held not to be a ground for expulsion, since it did not
violate the fundamental purposes of the association. Gottlieb v.
Economy Stores, Inc., 199 Va. 848, 102 S.E.2d 345, 350-352.
39
improper action is “well founded, an impartial judge might
conclude that it was made in the discharge of the highest
duty to the [association] and that temporary injury
resulting from the expose of wrong-doing was more than
offset by the permanent good.” Wilcox v. Supreme Council
o f Royal Arcanum, 210 N.Y. 370, 104 N.E. 624, 627.
Therefore, “fair criticism” of leadership conduct is the right
of a member of a voluntary association no less than “it is
the right of every citizen.” Schrank v. Brown, 192 Misc.
80, 80 N.Y.S. 2d 452, 455; see also, Yockel v. German
American Bund, Inc., 20 N.Y.S. 2d 774, 776-777 (Sup. Ct.).
And this is so even though the criticism may properly be
characterized as “severe”, or “couched in exaggerated lang
uage” ( Gleiforst v. Workingmen’s Sick & Death Benefit
Fund, 37 Misc. 221, 75 N.Y.S. 44, 45), or “ardent and
hard-hitting.” Madden v. Atkins, supra, 4 N.Y. 2d 283, 151
N.E. 2d 73, 77. See also People Ex rel. Ward v. Up-Town
Ass’n, 9 App. Div. 191, 41 N.Y.S. 154, 155; Mahoney v.
Sailors’ Union o f the Pacific, 43 Wash. 2d 874, 264 P.2d
1095, 1097; Reilly v. Hogan, 32 N.Y.S. 2d 864, aff’d, 264
App. Div. 855, 36 N.Y.S. 2d 423; Crossen v. Duffy, supra,
90 Ohio App. 252, 103 N.E. 2d 769.
As will be shown below, Sullivan’s conduct at all times
fell within the limits of allowable activity under the
foregoing judicial precedents.
B. Most of the charges against Sullivan were
false and the rest were exaggerated character
izations by which the directors sought to
mask their true intention to expel him be
cause of his dissent from their racial policy.25
The recreation association’s board of directors decided on
June 11, 1965, that there was “due cause” to expel Sullivan
po
The discussion of the evidence that follows is for the purpose of
aiding the Court in making an “independent examination of the
record” in order to consider the application of “controlling legal
principles . . . to the actual facts of the case.” Pickering v. Board o f
Education, supra, 391 U.S. at 578, n. 2, and cases cited therein.
40
under the by-law provision permitting expulsion for conduct
“ inimicable [sic] to the corporation’s members” (A. 59,
190). The directors reached this conclusion upon realizing
the extent of his disagreement with their refusal to approve
the share assignment to Dr. Freeman, and that he was seek
ing support from other members in an effort to secure
reversal of their action. They further realized from the
highly critical letters which they received from other mem
bers of the association (infra, n. 36 p. 45) that their
authority and judgment were under serious question and
scrutiny. Accordingly, Sullivan’s “non-acceptance” of the
board’s decision and continued “harrassment” of board
members were cited by the board as the basis for its June
11 decision to seek his expulsion (A. 59, 160). It was
thereafter necessary for Sullivan to commence a civil action
in the Fairfax County court in order to obtain a postpone
ment of the expulsion hearing so that his attorney could
appear with him, and in order to obtain a statement of the
specific conduct alleged to constitute the basis for his
expulsion.29
29The settlement stipulation terminating that proceeding was relied
on by respondents in the trial court in this case as a defense to the
prayer in Sullivan’s complaint which sought reversal of the directors’
refusal to approve the share assignment to Dr. Freeman (A. 84-85).
The stipulation was noted by the trial judge, but he specifically
refused to pass on it (A. 233). It is clear, however, that the terms of
the stipulation were never met, because, first, there was never a
“meeting of the general membership . . . held pursuant to [Sullivan’s]
petition calling the same” (A. 84). The crux of Sullivan’s petition
was that the membership should meet and hear Dr. Freeman, a sug
gestion earlier made by Father Walsh, but which the board of direc
tors had rejected. However, the evidence shows that the membership
meeting held on July 29, 1965, had an agenda substantially different
from the one contained in Sullivan’s petition, and the corporation’s
membership, as such, never voted because the meeting was too disor
derly and participated in by many people who were not members.
(PI. Exs. 21, 42; A. 75, 132-133, 82-85, 116, 151-153, 168-171).
Secondly, the stipulation only referred to “the assignment of the
membership for this [1965] swimming year,” and in no way barred
Sullivan’s continuing effort, by legal action or otherwise, to obtain
41
In an effort to justify Sullivan’s expulsion and to thwart
his efforts and those in agreement with him, the directors
drew up a statement of charges against Sullivan. But as
revealed by the record, their allegations are shown to be
either completely false, or exaggerated and distorted char
acterizations of his actions taken to obtain recision of the
association’s racial policy. By resort to falsehoods and over
statements, the directors revealed their true objective, which
was to compose a set of charges to serve as a pretext for
expelling Sullivan because of his dissent from their discrim
inatory action.
The allegations against Sullivan fall into several categories,
all of which relate to his reaction against the association’s
racial policy. First, he was charged with engaging in “har
assment” of the members of the board by means of
“numerous unfriendly telephone calls” that he made and
caused others to make in which the directors were accused
of “hatred and bigotry” (A. 73-74, 135, 181). However,
this accusation is shown by the evidence to be without
foundation in fact. Sullivan denied making “unfriendly” or
“harassing” telephone calls to directors or calls in which he
accused them of “hatred and bigotry” (A. 73-74). In
response to pre-trial interrogatories, only two directors were
identified by respondents as recipients of any calls: Mr.
Lennon and Mrs. Moore, the association president. Lennon
admitted in testimony that Sullivan made no calls to him in
which he was accused of “hatred and bigotry,” and stated
that at most Sullivan was “impatient on occasion” (A.
135-136, 153-154). Mrs. Moore testified to no “harassing”
telephone calls made by Sullivan to her. In fact, she
described only one telephone conversation that she had
approval of the assignment for 1966 and subsequent swimming years.
Finally, the stipulation makes no reference to, and therefore does not
affect Sullivan’s prayer to enjoin continuation of the association’s
discriminatory racial policy because of its effect on the marketability
of his real estate; nor does the stipulation affect Sullivan’s cause of
action arising from expulsion from the association. Further, the
stipulation has no effect on Freeman’s separate legal action.
42
with Sullivan, a call that she placed to him, and the most
that she said about it was that he was “rude” because he
interrupted her, so she hung up on him (A. 162, 58,
113 ).30 Mrs. Moore mentioned two other telephone calls
that she received during this period, one from Dr. Freeman
and one from James Sutherland, a member of the associa
tion, both of whom called about arrangements for Dr. Free
man to meet the board of directors, a suggestion that had
been made by Father Walsh but was rejected by Mrs. Moore
(A. 162, 164). It is undisputed that neither caller accused
the directors of “hatred and bigotry” (A. 108-111, 164)/;
The second category of charges against Sullivan arose
from the May 28, 1965, visit to his home by board repre
sentatives Lennon, Hanley and Egger. It was alleged that
30Another charge against Sullivan is that he used “abusive”
language to Mrs. Moore during that telephone conversation (A. 58,
165). This charge was revealed as baseless. For, upon being asked to
explain it, Mrs. Moore referred to an exchange in the course of her
conversation with Sullivan about the attitude of their parish priest,
Father Walsh, toward the swimming pool racial issue. Expressing
indifference to Father Walsh’s views, Mrs. Moore stated rather vehe
mently that he did not “mean a thing” to her (A. 58, 113, 162, 165).
Reacting partly in surprise to that comment, Sullivan, according to
Mrs. Moore, then stated that “the action of the Board” in denying
the assignment to Freeman was “immoral”, “illegal” or “evil” (A. 162,
165). This language, used as it was in reference to the Board’s action
rather than Mrs. Moore personally, is not what would normally be
characterized as “abusive.”
31 Although the charge against Sullivan was that he was responsible
for a campaign of “harassing” telephone calls to directors of the
association, respondents, in answer to pre-trial interrogatories, made a
last-minute attempt to bolster their case by naming a person who was
not a director as one who allegedly received such a call from Sullivan
(A. 74-75, 135-136). The person named, Mrs. Mary Simmons, did
not testify at the trial; no evidence was introduced concerning any
call that she received, nor the identity of any caller; Sullivan denied
ever calling her; and finally, Mrs. Moore admitted on cross-examination
that no call to Mrs. Simmons by Sullivan was even considered at the
time the directors voted to expel him (A. 74, 136).
43
on that occasion he accused the board of directors of prac
ticing “bigotry and hatred” and that he “cast doubt on the
veracity” of the three representatives who visited him. It
was further alleged that he was “ insulting and rude”
because he made statements to the effect that he was
“ashamed” of the three representatives and that the board’s
action in disapproving the Freeman assignment was “evil” ,
“immoral” and “shocking” (A. 54, 181-182, 186).
While Lennon, Hanley and Egger each testified at the
trial, they failed to support the allegation that Sullivan
accused the board of “bigotry and hatred/2 Nor is there
record support for the allegation that Sullivan “cast doubt
on the veracity” of the board representatives. As his testi
mony shows, Sullivan disapproves of racial discrimination,
and was amazed when he learned from the board delegates
that Dr. Freeman had been rejected solely because of his
race. He found it particularly hard to believe the assertion
of the delegation that the entire board and association
membership unanimously backed the rejection, for Sullivan
knew that he and others who shared his views on racial dis
crimination strongly disagreed (A. 52). In light of the sur
prising circumstances presented to him, Sullivan testified, “I
did express an inability to believe, which I think is perfectly
normal” (A. 54). As he further explained, “When one is
confronted with an incredible situation . . . that you may
find difficult or impossible to believe . . . [it] does not
necessarily reflect on the veracity of the person who may
relate it” {ibid.). It is plain, therefore, that whatever Sulli
van’s statement of disbelief might have been, it was at most
an expression of amazement, and it distorts the common
understanding of speech to construe such an incident as
22The testimony of these three men and Mr. and Mrs. Sullivan
concerning the May 28 meeting appears in the record as follows:
Sullivan (A. 51-53, 86-88); Mrs. Sullivan (A. 112-113); Hanley (A.
149-150); Lennon (A. 150-151); Egger (A. 155-156).
44
“casting doubt on the veracity” of the person to whom the
statement is made.55
Unquestionably, Sullivan was shocked and ashamed at
what he considered the board’s immoral action in rejecting
Dr. Freeman because of his race. Sullivan had contracted
with Dr. Freeman to assign the swimming pool share to
him, and when Hanley related the board’s offer to buy that
share, Sullivan expressed his unwillingness to breach his
agreement by rejecting the offer out of hand since, as he
testified “I felt selling a share with the condition of racial
discrimination attached to it was cooperating in an evil” (A.
52). Without doubt, Sullivan’s reaction to the situation
with which he was confronted and the words he used on
that occasion are no different than what could be expected
from vast numbers of persons, given the same circum
stances.* 54 Further, Sullivan, a United States government
employee, testified that on May 26, 1965, two days before
the delegation’s visit to his home, he had received a copy
of a memorandum from President Lyndon Johnson to all
government employees which stated that the President
“expected them to do all in their power to ensure the equal
treatment of every citizen regardless of race, creed or
national origin” (A. 60-61. See also, PI. Ex. 14; A. 63,
55Sullivan’s reaction was shared by Rev. John M. Wells, a Unitarian
minister in the Little Hunting Park area, who testified that he, along
with others with whom he discussed the matter, found the discrimina
tion against the Freeman family “almost unbelievable” (A. 174).
54Sullivan also testified that his actions were motivated by his
religious convictions. As the record shows, Sullivan is a Catholic who
viewed the disapproval of the Freeman assignment as a “problem of
injustice” (A. 56, 60). Leaders of Sullivan’s church and particularly
Bishop Russell, head of the Diocese of Richmond, which includes
Northern Virginia, have characterized racial discrimination as “prim
arily a moral and religious problem (A. 61-63, 85-86, 94). Informa
tion to this effect, and of the Bishop’s personal efforts to combat
racial discrimination, particularly in the field of housing, have been
widely publicized, not only in the Catholic press, but in newspapers
of general circulation, as well (ib id).
45
191-192). Accordingly, Sullivan’s reaction to the encounter
with the corporation’s representative on May 28 was neither
unusual nor surprising/6 He acted and spoke consistently
with the principles taught by his own and other churches,
and pursuant to the specific mandate of President Johnson.
The words used by Sullivan are part of the vocabulary that
has come to be associated with racial discrimination and
reflected his sincere views on the subject. Finally, the
words were no stronger, in fact they were relatively temper
ate, in comparison to those used by other members of the
association when they learned of the directors’ discrimina
tion against the Freemans because of their race/6
^Hanley specifically denied that Sullivan was emotional on that
occasion. He testified that Sullivan “kept things under control pretty
well that way” (A. 150).
66 See particularly the letter of Paul Scott Forbes, who, in a letter
to Mrs. Moore dated June 10, 1965, wrote (A. 139-140):
My wife and I, members of Little Hunting Park, Inc. were
shocked and dismayed by the narrow minded and totally
unjustifiable action of the board in arbitrarily excluding a
qualified membership holder on the basis o f race . . . This
flagrantly unchristian violation o f the scriptural admonition,
“Do unto others as you would have them do unto you,”
cannot be justified on any grounds and casts an ugly shadow
o f bigotry on our community, which is undeserved . . . Even
if this were not so, the Board’s action is un-American and
sullies the memory of the thousands of Americans who died
in the revolution, in the Civil War and in World War II to
preserve the idea that all men are created equal, and that
human rights must always come before property rights . . . I
pledge to take all measures possible—including legal ones if
necessary to attain these ends. [Emphasis added.]
Another letter to Mrs. Moore from a member of the association,
Mrs. Richard C. Ellis, dated June 10, 1965, stated (A. 140-141):
I see no mad rush to move out of Bucknell since the
Freemans moved in, no empty houses, no panic . . . The
houses on Beacon Hill Road and those behind Rollins Drive
add to the appearances of Bucknell and are all lived in and
kept neatly by Negroes. The school has had no problem
integrating—why make an issue of the pool? . . . I have met
Ted and Laura Freeman and their little boys and I not only
46
A third group of charges against Sullivan stems from a
letter that he wrote on June 25, 1965, to Father Thomas
J. Cassidy, Director of Catholic Charities for Northern Vir
ginia, concerning his encounter with racial discrimination.
(PI. Ex. 16; A. 64-67, 193-198, 181-182). The allegation
was again made that Sullivan accused the board of directors
of practicing “bigotry and hatred.” These words do not
appear anywhere in the letter, however, thus giving the lie
to the charge (A. 181, 186, 193-198).57 Sullivan wrote the
June 25 letter, as well as a follow-up letter on July 1, to
Father Cassidy on the recommendation of Father Carl Zet-
erburg, Sullivan’s former pastor (A. 64, 67-69, 88-89, 182).
Father Cassidy, is charged by Bishop Russell with responsi
bility for problems involving race relations in the Northern
Virginia area of the diocese (A. 64). Sullivan, in both his
letters of June 25 and July 1, in substance asked the
clergyman to exercise his moral influence in an effort to
combat the racial discrimination which was being practiced
by the board of directors of Little Hunting Park, Inc.
Copies of the letters were sent by Sullivan to the two local
priests in whose parishes Little Hunting Park is located and
to Father John McMahon in Richmond, who has an over
all role in the diocese with respect to matters of “social
justice” (A. 88).
Sullivan, in writing the two letters, with copies sent only
to Catholic clergymen, used, as would be expected, the
vocabulary previously discussed, which has come to be asso- * •
like them, but I think they are an asset to the community,
and therefore eligible to swim in our pool.
Mrs. Moore acknowledged receiving a number of letters expressing
disapproval of the board’s action (A. 137). Five such letters, includ
ing the two quoted above, are included in the record as Plaintiffs’
Exhibits 44-48.
•J7The directors also alleged that Unitarian Minister John M. Wells
was a recipient of Sullivan’s June 25 letter (A. 181, 186). The
uncontradicted evidence based on the testimony of both Sullivan and
Reverend Wells shows that the letter was never sent to Wells and he
never saw a copy of it (A. 65, 172).
47
dated with racial discrimination. He noted, among other
things, that Bishop Russell had referred to racial discrim
ination as a “real moral evil,” and in the July 1 letter
mentioned the Catholic Church’s view that racial discrim
ination is a “sin” (A. 66, 68-69). The context in which
these terms were used and the religious personages to whom
they were addressed provide the only proper measure for
assessing Sullivan’s conduct in writing the letters. It cannot
be doubted that he wrote them out of sincerity of convic
tion, and with no thought of maligning any director or even
singling out any individual for criticism. His remarks were
concerned solely with the subject of racial discrimination
and the improper action which he believed the board as a
body had taken. And it has not been alleged, nor can it be,
that either of the letters contains a single word of untruth.
Their only vice in the directors’ eyes was that Sullivan had
presumed to criticize the board’s action and revealed him
self as wanting to reverse the discriminatory racial policy
which it had adopted.
The directors, therefore, angered by Sullivan’s efforts to
overturn their action and seeking to vindicate themselves,
alleged as one of the grounds for his expulsion the fact that
one of the parish priests to whom he sent a copy of his
June 25 letter turned out, coincidentally, to be pastor of
the church where Mrs. Moore was employed (A. 66, 182,
186). It is undisputed that at the time Father Joseph
Wingler was sent a copy of the letter by Sullivan, the latter
had no knowledge that Mrs. Moore was an employee of St.
Mary’s Church, and indeed, he did not even know of her
religious affiliation (A. 66-67). Also, contrary to the impli
cation conveyed by the charge against Sullivan, it is undis
puted that Mrs. Moore’s employment was not adversely
affected in any way by Father Wingler’s receipt of the let
ter, and that she still works for St. Mary’s Church (A. 67,
134-135). When Father Wingler received the letter, he
showed it to Mrs. Moore, mentioned that its subject was
“none of his business,” and showed his lack of interest or
48
concern by reading the letter once and throwing it away (A.
162, 95).38
Paul Sulliven’s June 25 letter to Father Cassidy served
still another purpose for the directors. Seizing on the fact
that Sullivan sent a copy to Father Walsh, his own pastor,
the directors alleged that this created a “strained relation
ship” between Father Walsh and the corporation (A. 67,
182, 186-187). This charge was refuted completely, how
ever, by the signed statement of Father Walsh offered in
Sullivan’s behalf at the August 17 expulsion hearing. Father
Walsh pointed out that there was in fact no relationship
between himself and the association to strain, but even if
there had been one, the letter would not have strained it
(A. 67, 96-97).
Two final allegations against Sullivan hardly merit serious
discussion, but they typify the scatter-gun attack that was
made on him in the effort to justify his expulsion from the
association. Thus, it was charged that while circulating the
petition for the special membership meeting that he wanted
convened, Sullivan used “violent and abusive language to
members of the corporation who refused to sign” the peti
tion (A. 76, 182, 187). By way of specification for this
charge, the only member to whom Sullivan was alleged to
have used such language was Alleen Winters. Mrs. Winters
did not testify, and there was no evidence of any kind
offered in the trial court to support this charge. On the
other hand, Sullivan testified in detail about his visit to Mrs.
Winters’ home, as well as his prior close relationship of
some 10 years standing with her and her husband (A. 75-
77). Sullivan categorically denied using “violent and abu-
ŝAt the hearing on Sullivan’s expulsion, a signed statement by
Father Wingler was submitted to the board, stating as follows (A. 95,
98):
This is to certify that Mr. Sullivan’s letter of June 25, 1965,
to Father Cassidy, o f which I received a copy, was in no way
detrimental to the employment status of Mrs. Virginia Moore,
who works for me.
49
sive” language to her (A. 77). Additionally, Father Walsh,
who happened to be in Mrs. Winters’ home when Sullivan
visited her, denied in his signed statement submitted to the
board at the time of the expulsion hearing that Sullivan had
used such language (A. 77, 96-97).
Finally, the directors alleged that Sullivan, by his efforts
to reverse their discrimination against Freeman and his
threat to bring appropriate legal action, was responsible for
financial loss to the directors because they were required to
retain counsel and to hold “additional meetings”, thereby
incurring “additional and necessary transportation expense”
(A. 77-79. 182, 187). As shown supra, pp. 37-38, the bring
ing of a court proceeding against an association by a member
is not a proper ground for expulsion. That this charge also
lacks evidentiary foundation is shown by the fact that the
by-laws of the corporation require the directors to meet
once a month, and the record shows that except for the
special membership meeting of July 29, 1965, and the
expulsion hearing of August 17, 1965, the directors held
only one meeting each month during 1965 (A. 31, 78,
165). Further, there was nothing unusual about the trans
portation expenses incurred by the directors in attending
these meetings, for they were all held at directors’ homes,
and all of the directors reside in the same general neighbor
hood—no one living more than one mile from the Little
blunting Park swimming pool (A. 78-79).
From the foregoing it is clear beyond any question that
Sullivan’s expulsion from Little Hunting Park, Inc. was in
reprisal for his seeking to overturn the directors’ discrimin
atory racial policy. Because he refused to acquiesce in their
disapproval of the assignment to Freeman, the directors
seized on some of his actions and statements, which partic
ularly angered them, added others of their own invention,
and with this as the basis decided that they could justify
his expulsion from the association.59 As we have seen,
^.Significantly of the various charges against Sullivan, only two
involved incidents occurring before June 11, 1965, the date of the
50
many of the charges against Sullivan are altogether false.
The rest relate to wholly legitimate means by which he
expressed his disagreement with the directors’ racial policy.
As a dissenting member of the association, his actions and
statements were at all times within the judicially recognized
bounds of permissible activity.* 40 See discussion supra, pp.
36-39. Clearly the drafting of the various specious accusa
tions against Sullivan evidence the directors’ retaliatory
motive in expelling him.
VII. THE PETITIONERS HAVE VALID
CLAIMS FOR DAMAGES
In each suit upon which this proceeding is based,
damages are sought in the amount of $15,000. In Jones v.
Mayer Co., the Court refrained from passing on whether the
plaintiffs could recover damages for the violation that was
found of § 1982. 392 U.S. at 414-415, n. 14. Whether
directors’ decision that there was “due cause” for expelling him (A.
59, 190). Those incidents were the May 28 visit of the three associa
tion delegates to Sullivan’s home and Sullivan’s telephone conversation
of June 7 with Mrs. Moore {supra, pp. 41-42). Those two incidents
demonstrated to the directors Sullivan’s “non-acceptance” (A. 59,
190) o f their decision regarding the assignment to Freeman. Hence,
it is clear that all the rest o f the charges leveled against Sullivan when
he was expelled in August were afterthoughts designed to justify the
action that had been decided upon two months previously.
40In any event, “little weight” should be given to the board of
directors’ determination that Sullivan’s conduct was “inimicable” [sic]
to the corporation’s members in view of the “obvious defects” from a
procedural standpoint in the hearing granted him prior to his
expulsion. Pickering v. Board o f Education, supra, 391 U.S. at 578-
579, n. 2. As in Pickering, “the trier of fact was the same body that
was also the victim o f appellant’s statements and the prosecutor that
brought the charges aimed as securing his dismissal . . . [; and] [t]he
state courts made no independent review of the record.” Ibid. Fur
ther, as noted supra, p. 11, Sullivan was not permitted at the
expulsion hearing to learn the identity of his accusers or to question
them, and he was denied permission to have a reporter present. See
generally, Comment, Judicial Control o f Actions o f Private Associa
tions, 76 Harv. L. Rev. 983, 1029-1037 (1962); 6 Am. Jur.
Associations S 36.
51
this proceeding is governed by §§ 1981, 1982 or provisions
of the Constitution, it is clear, in any event, that damages
may be awarded. “ [Wjhere federally protected rights have
been invaded, it has been the rule from the beginning that
courts will be alert to adjust their remedies so as to grant
the necessary relief.” Bell v. Hood, 327 U.S. 678, 674, and
cases there cited. See also, Texas & Pacific Ry. Co. v. Rigs
by, 241 U.S. 33, 39-40; Steele v. Louisville & Nashville R.
Co., 323 U.S. 192, 207; Wyandotte Transportation Co. v.
United States, 389 U.S. 191, 202, 204; 42 U.S.C. § 1988.
Here petitioners claims for damages are based on constitu
tional and statutory provisions which “should be read
against the background of tort liability that makes a man
responsible for the natural consequences of his actions.”
Monroe v. Pape, 365 U.S. 167, 187. Familiar factors justi
fying compensatory and punitive damage liability are there
fore appropriate for consideration. Jones v. Mayer, supra,
392 U.S. at 414-415, n. \A.41 However, state rules of dam
ages that tend to defeat the federal civil rights at issue must
give way to the “federal common law of damages” . Basista
v. Weir, supra, 340 F.2d at 87; Caperci v. Huntoon, 397 F.
2d 799, 801 (C.A. 1), cert, denied, 393 U.S. 940. Thus,
there need only be adoption of those state rules that will
“effectuate the broad policies of the civil rights statutes.”
Brazier v. Cherry, 293 F.2d 401,408 (C.A. 5), cert, denied,
368 U.S. 921; Sherrod v. Pink Hat Cafe, 250 F. Supp. 516,
519-520 (N.D. Miss.). Because precedents are few, peti
tioners respectfully urge that the Court, in its decision
41 In addition to such compensatory and punitive damages as may
be justified, it has been suggested that in civil rights cases arising out
of racial discrimination a plaintiff should be entitled to have included
in his award as a third element of damages an amount “for depriva
tion of civil rights”. Comment, Civil Actions for Damages Under the
Federal Civil Rights Statutes, 45 Tex. L. Rev. 1015, 1033 (1967). Cf.
Nixon v. Herndon, 273 U.S. 536; Lane v. Wilson, 307 U.S. 268\Myers
v. Anderson, 238 U.S. 368; Basista v. Weir, 340 F.2d 74, 87-88 (C.A.
3); Washington v. Official Court Stenographer, 251 F. Supp. 945,947
(E.D. Pa.), Rhoads v. Horvat, 270 F. Supp. 307, 309-310 (D. Colo.)
and cases cited.
52
herein, delineate standards for the granting of monetary
relief, for the guidance of the court below. Among the
relevant factors, petitioners submit, are the following:
The Freeman family’s claim against respondents for
$15,000 damages is justified by the infringement the Free
mans suffered of federally guaranteed rights; their exclusion
for two years from Little Hunting Park’s recreation facilities
including its swimming pool, with the accompanying
expense and inconvenience of having to go elsewhere to
find comparable facilities; and the physical and emotional
injury to them resulting from the racial discrimination that
they suffered with its attendant embarrassment, humilia
tion, indignity and loss of social prestige in the community
(A. 206-216). The record shows that when the Freemans
first moved into the predominantly white neighborhood
where Little Hunting Park is located, they attracted little
attention and were hospitably received. However, the direc
tors’ racially motivated refusal to approve the pool assign
ment to them precipitated a build-up of community hostil
ity toward the Freemans and they soon were ostracised by
neighbors who had previously been friendly, and were sub
jected to racial slurs and various forms of harrassment (A.
210, 212, 213-214). The Freemans’ two young sons, ages
6 and 5, became isolated from children who had previously
been their playmates in the neighborhood (A. 214). The
aggravation and emotional strain resulting from respondents’
discrimination against the family caused Mrs. Freeman to
have a temporary nervous breakdown and interfered with
Dr. Freemans’ performance of his duties as a federal gov
ernment employee (A. 208-211, 214-216). The psycholog
ical and emotional injury resulting from the racial discrimi
nation against the Freemans is plainly a factor meriting
consideration in determining compensatory damages. Solo
mon v. Pennsylvania R. Co., 96 F. Supp. 709, 712 (S.D.
N.Y.); Anderson v. Pantages Theater Co., 114 Wash. 24,194
P. 813, 815-816. Cf. Brown v. Board o f Education, 347
U S 483, 493-494; Browning v. Slenderella Systems o f
Seattle, 54 Wash. 2d 440, 341 P.2d 859, 863-866;McArthur
53
v. Pennington, 253 F. Supp. 420, 430 (E.D. Term.); Ante
lope v. George, 211 F. Supp. 657, 660 (D. Idaho).
The Sullivan family’s claim for $15,000 damages is
grounded on Paul Sullivan’s unlawful expulsion from the
association; the resulting exclusion of the family from Little
Hunting Park for the past three years with the necessity
of having to go elsewhere for swimming and recreational
facilities; and the damage to reputation, as well as physical
and emotional strain, that were suffered by the Sullivans as
the result of the expulsion proceeding initiated by respond
ents (A. 78-82, 113-115). In the recent case of Simmons v.
Avisco, Local 713, Textile Workers Union o f America, 350
F.2d 1012 (C.A. 4) a suspended member of a labor union
sued in the District Court of the Eastern District of Virginia
for reinstatement and damages. Based on the trial court’s
finding that he had been wrongfully suspended, the
plaintiff was ordered reinstated, and awarded $15,000
compensatory damages for injury to reputation and result
ing mental anguish. The court of appeals, in affirming,
noted, as one of the justifications for the damages award,
the harassment of the plaintiff, following his suspension,
through anonymous and abusive telephone calls to his
home. 350 F.2d at 1018. There is undisputed evidence of
similar harassment of Sullivan in the instant case (A. 82,
114-115).
In Jones v. Mayer Co., supra, the Court left open the
question whether punitive damages may be awarded under
the Civil Rights Act of 1866, but referred to authorities
(302 U.S. 414-415, n. 14) indicating that they are appro
priate where warranted by the facts of the case, citing,
Philadelphia, Wilmington & Baltimore R. Co. v. Quigley,
21 How. 202, 213-214; Barry v. Edmunds, 116 U.S. 550,
562-565; Wills v. Trans World Airlines, Inc., 200 F. Supp.
360, 367-368 (S.D. Calif.). See also, Hague v. Committee
for Industrial Organization, 101 F.2d 774, 789 (C.A. 3),
modified on other grounds, 307 U.S. 496; Antelope v.
George, supra, 211 F. Supp. 657, 660 (N.D. Idaho);
Rhoads v. Horvat, supra, 270 F. Supp. 307 (D. Colo.).
54
In the instant case, punitive damages are proper in view
of the malice that may be implied from respondents’ hostile
and insulting conduct toward the Freemans because of their
race, and in view of the animus and vindictiveness that
motivated the directors in expelling Sullivan from the asso
ciation. Punitive damages are justified “whether the
wrongful act is done with a bad motive, or with such gross
negligence as to amount to misconduct, or in a manner so
wanton or reckless as to manifest a wilful disregard of the
rights of others . . Franklin Plant Farm Inc. v. Nash,
118 Va. 98, 86 S.E. 836, 842; and see Bolton v. Vellines,
94 Va. 393, 26 S.E. 847, 850; Baker v. Marcus, 201 Va.
905, 114 S.E. 2d 617. As we have shown supra, pp. 39-50,
the charges brought against Sullivan as justification for his
expulsion consisted almost entirely of demonstrable
untruths and gross exaggerations designed to mask the direc
tors’ antagonism toward him because he refused to acqui
esce in their discrimination against Freeman and sought to
reverse it. His expulsion under such circumstances, we
submit, supports the awarding of punitive damages against
respondents. See, e.g., International Brotherhood o f Boiler
makers v. Braswell, 388 F.2d 193, 199-201 (C.A. S).42
CONCLUSION
For the reasons stated, it is respectfully submitted that
the Court should render a decision for petitioners. In that
event, it would appear that another remand to the Supreme
Court of Appeals of Virginia would be futile, in view of
42'The individual directors of Little Hunting Park, Inc., respondents
herein, who participated in the discrimination against Dr. Freeman
and the expulsion of Paul Sullivan are liable, along with the corpora
tion, for damages based on their roles in the wrongful conduct. See
National Cash-Register Co. v. Leland, 94 Fed. 502, 508-511 (C.A. 1)
cert, denied, 175 U.S. 724; Trounstine v. Bauer, Pogue & Co., 144 F.
2d 379, 382 (C.A. 2) cert, denied, 323 U.S. I l l ; Hitchcock v. Amer
ican Plate Glass Co., 259 Fed. 948, 952-953 (C.A. 3); Lobato v. Pay
Less Drug Stores, Inc., 261 F.2d 406, 408409 (C.A. 10); American
Universal Insurance Co. v. Scherfe Insurance Agency, 135 F. Supp.
407, 415416 (S.D. Iowa).
55
that court’s insistence that it does not have jurisdiction over
the proceeding. Therefore, petitioners respectfully suggest
that the Court treat this proceeding as one on a writ ot
certiorari to the Circuit Court of Fairfax County, Virginia,
where the cases were tried. See Callender v. Florida, 383
U.S. 270, 380 U.S. 519; Adam v. Saenger, 303 U.S. 59, 61.
Cf. Naim v. Naim, 350 U.S. 891; on remand, 197 Va. 734, 90
S.E. 2d 849, appeal dismissed, 350 U.S. 985, where in
circumstances similar to those presented here, the Supreme
Court of Appeals of Virginia successfully evaded compli
ance with a mandate of this Court. Further, it would be
appropriate for this Court to formulate an order reversing
the judgments of the courts below, and directing the
Circuit Court to enter an appropriate decree, including
provision for such damages as that court may fix. See
Stanley v. Schwalby, 162 U.S. 255, 279-283; 28 U.S.C. §
2106; 28 U.S.C. § 1651 (a).43
Respectfully submitted,
Of Counsel:
Jack Greenberg
James M. Nabrit, III
10 Columbus Circle
New York, New York 10019
June 1969
Allison W. Brown, Jr.
Suite 501, 1424-16th Street, N.W.
Washington, D.C. 20036
Peter Ames Eveleth
217 Fifth Street, S.E.
Washington, D.C. 20003
Robert M. Alexander
2011 S. Glebe Road
Arlington, Virginia 22204
Attorneys for Petitioners
^ “The power to enter judgment and, when necessary, to enforce
it by appropriate process, has been said to be inherent in the Court’s
appellate jurisdiction.” Fay v. Noia, 372 U.S. 391,467 (dissenting
opinion of Justice Harlan). See Williams v. Bruffy, 12 Otto 248, 255-
256; Tyler v. Magwire, supra, 17 Wall, at 289-293; Martin v. Hunter’s
Lessee, supra, 1 Wheat, at 361; McCulloch v. Maryland, 4 Wheat. 316,
437; Gibbons v. Ogden, 9 Wheat. 1, 239; Kreshik v. St. Nicholas
Cathedral, 363 U.S. 190, 191. Cf. N.A.A.C.P. v. Alabama, supra, 377
U.S. at 310.
57
APPENDIX
STATUTES
42 U.S.C. Section 1981. Equal rights under the law
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to
make and enforce contracts, to sue, be parties, give evi
dence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as
is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exac
tions of every kind, and to no other. R.S. § 1977.
42 U.S.C. Section 1982. Property rights of citizens
All citizens of the United States shall have the same
right in every State and Territory, as is enjoyed by white
citizens thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property. R.S. § 1978.
CONSTITUTION OF THE UNITED STATES
Article VI
This Constitution, and the laws of the United States
which shall be made in pursuance thereof; and all treaties
made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land; and
the judges in every State shall be bound thereby, anything
in the Constitution of laws of any State to the contrary
notwithstanding.
* * *
AMENDMENTS
Article I
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
58
right of people peaceably to assemble, and to petition the
Government for a redress of grievances.
* * *
Article XIII
Section 1. Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this
article by appropriate legislation.
* * *
Article XIV
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States,
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any per
son within its jurisdiction the equal protection of the laws.
* * *
RULES OF THE SUPREME COURT OF
APPEALS OF VIRGINIA
Rule 5:1 The Record on Appeal
Sec. 3. Contents of Record
* * *
(0 Such a transcript or statement not signed by
counsel for all partices becomes part of the record when
delivered to the dark, if it is tenedered to the judge with
in 60 days and signed at the end by him within 70 days
after final judgment. It shall be forthwith delivered to
59
the clerk who shall certify on it the date he receives it.
Counsel tendering the transcript or statement shall give
opposing counsel reasonable opportunity to examine the
original or a true copy of it. The signature of the judge,
without more, will be deemed to be his certification that
counsel had the required notice and opportunity, and
that the transcript or statement is authentic. He shall
note on it the date it was tendered to him and the date
it was signed by him.
* * *