Rogers v Loether Brief for Petitioner

    I n  t h e

(tart nf ttjr luitrti ^tatra
October Term, 1973 

No. 72-1035

J u lia  R o g e r s ,

v.
Petitioner,

L eroy L oether and M ariane L oether, h is wife, 
and M rs. A n t h o n y  P eree

o n  w r i t  o p  c e r t i o r a r i  t o  t h e  u n i t e d  s t a t e s  c o u r t  o f  a p p e a l s

FOR T H E  SE V E N T H  CIRCU IT

BRIEF FOR PETITIONER

J ack  Greenberg 
M ichael  D avidson 
S ylvia  D rew  
E ric S chnapper

10 Columbus Circle 
New York, N.Y. 10019

P atricia D . M cM ahon

Freedom Through Equality, Inc. 
152 West Wisconsin Avenue 
Milwaukee, Wisconsin 53203

S eym our  P ik o fsk y

Milwaukee Legal Services 
2200 North Third St. 
Milwaukee, Wisconsin 53212

Attorneys for Petitioner

Charles L. B lack , J r .
Of Counsel



TABLE OF CONTENTS

Opinions B elow ..... ....... .......... - ................. ............. .........  1

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

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

Constitutional and Statutory Provisions Involved.......  2

Statement of the Case ......................................................  4

Summary of Argum ent........... ...................     6

I. Title V III Provides That All Issues Shall Be Tried 
By a Judge Without a Jury ............ ....... ..............  9

a. Statutory Language ..............................................  9

b. Legislative History ..............................................  15

c. Constitutional Consideration ...........................— 19

II. The Seventh Amendment Does Not Require Jury
Trials in Actions Arising Under Title V I I I ........... 27

a. The Rights Protected by Title V III Were
Unknown At Common L aw ..................................  27

b. The Relief Available in a Title VIII Case Is 
Part of a Single Integrated Equitable Remedy 36

c. A  Court of Equity Could Constitutionally
Award Legal Relief in This C ase......................  39

PAGE

Conclusion 50



T able of A uthorities

Cases: page

Aladdin Mfg. Co. v. Mantle Lamp Co. of America, 116
F.2d 708 (7th Cir. 1941) ................................................. 41

Alexander v. Hillman, 296 U.S. 222 (1935) ...................  37
Allgeyer v. Louisiana, 165 U.S. 578 (1897) ...................  30
Alpaugh v. Wolverton, 184 Ya. 943, 36 8 .E. 2d 906

(1946) ................        34
Alsberg v. Lucerne Hotel Co., 46 Misc. 617, 92 N.Y.S.

851 (1905) ...................................      30
Anthony v. Brooks, 67 LRRM 2897 (N.D. Ga. 1967) .... 15 
Aqnilines Inc. v. N.L.R.B., 87 F.2d 146 (5th Cir. 1936) .. 28

Banks v. Chicago Grain Trimmers Association, 390
U.S. 459 ...........     12

Banks v. Local 136, I.B.E.W., C.A. Ho. 67-598 (N.D.
Ala., order dated January 25, 1968) ..........................  15

Beacon Theatres v. Westover, 359 U.S. 509 (1959) 8-9-10,46
Beall v. Drane. 25 Ga. 430 (1857) .................    31
Bean v. Patterson, 122 TJ.S. 496 (1887) .......   30
Birdsall v. Coolidge, 93 TJ.S. 64 (1877) ........................... 41
Bloom v. Illinois, 391 U.S. 194 (1968) ........................... 18
Booth v. Illinois, 184 U.S. 425 (1902) ............................... 30
Brady v. T.W.A., Inc., 196 F. Supp. 504 (D. Bel.

1961) .........     29,41
Bridges v. Mendota Apartments, No. 898-H (D.C. Com­

mission on Human Rights), EOH 17,505 (1972) .... 14 
Brown Shoe Co. v. Hunt, 103 Iowa 586, 72 N.W. 765

(1897) ....... ...... .......... .............................. .................... . 35
Bryson v. Bramlett, 204 Tenn. 347, 321 S.W.2d 555

(1958) ......................................       40
Burkhardt v. Lofton, 63 Cal. App.2d 230, 146 P.2d 720

(1944) .............................      31
Busby v. Mitchell, 29 S.C. 447, 7 S.E. 618 (1888) .......  40

11



1X1

Calye’s Case [1584], 8 Co. 322, 77 Eng-. Rep. 520
(K.B.) ............................ .— ............................................. 35

Camp v. Boyd, 229 U.S. 530 (1913) ..............................  40
Cates v. Allen, 149 U.S. 451 (1893) .... - ...... ........... - .....  45
Chandler v. Zeigler, 88 Col. 1, 291 P. 822 (1930) .......... . 31
Cheatwood v. South Central Bell Tel. & Tel. Co., 303

F.2d 754 (M.D. Ala. 1959)  - ................................... 14,39
Clieff v. Schnackenberg, 384 U.S. 373 (1966) ............... 18
Christie v. York Corp., 1 D.L.R. 81 (1940) ........ ..........  35
City of Independence v. Richardson, 117 Kan. 656,

232 P. 1044 (1925) ................ .......................................... 34
Civil Rights Cases, 109 U.S. 3 (1883) ..................... -.... 32, 35
Clark v. Wooster, 119 U.S. 322 (1886) ........................... 40
Coca-Cola Co. v. Dixi-Cola Laboratories, 155 F.2d 59,

64 (4th Cir.) ............................ —  -.............................. 41
Colburn v. Simms [1843], 2 Hare 543, 67 Eng. Rep.

224 (Ch.) ......... ....... ...................... ...........................-.......  40
Connecticut v. Seale (No. 15844, Dist. Ct. New Haven) 26 
Constantine v. Imperial Hotels Ltd., 1 K.B. 693 (1944) 35
Cornish v. O’Donoghue, 30 F.2d 983 (D.C. Cir. 1929) .... 31
Corrigan v. Buckley, 299 F. 899 (D.C. Cir. 1924) .......  30
Corrigan v. Buckley, 271 U.S. 323 (1926) ....................... 32
Cox v. Babcock and Wilcox Company, 471 F.2d 13 (4th

Cir. 1972) ......... ......... ................ ........................... ............  16
Creedon v. Arielly, 8 F.R.D. 265 (W.D. N.Y. 1948) ....... 29
Culpepper v. Reynolds Metals Co., 296 F. Supp. 1232 

(N.D. Ga. 1968) .................................................... -.15, 29, 38

PAGE

Dairy Queen v. Wood, 369 U.S. 469 (1962) ...................46-47
Dansey v. Richardson [1854], 3 E. &B. 144 (Q.B.) .......  34
Day v. Woodworth, 54 U.S. (13 How.) 363 (1852) .......  41
Denton v. Stewart, 1 Cox Ch. 258, 29 Eng. Rep. 1156

(Ch. 1786) .........................................................................  42
DeWolf v. Ford, 193 N.Y. 397, 86 N.E. 527 (1908) .......  35



IV

Dorsey v. Stuyvesant Town. Corp., 299 N.Y. 512, 87 
N.E.2d 541 (1949) ............................................................  30

Edwards v. Elliott, 88 U.S. 532 (1874) ........................... 14

Fay v. Pacific Improvements Co., 93 Cal. 253, 26 P.
1099 (1891) ...................    34

Fell v. Knight [1841], 8 M. & W. 269 (Q.B.) ...............  33
Fleming v. Peavy Wilson Lumber Co., 38 F. Supp. 1001

(W.D. La. 1941) ........................    39
Franklin v. Evans, 55 O.L.R. 349 (1924) ....................... 35
Fraser v. McGibbon, 10 Ont. W.R. 54 (1907) ...............  35

Gabrielson v. Hogan, 298 F. 722 (8th Cir. 1924) ........... 42
Glillin v. Federal Paper Board Co., Inc., 52 F.R.D. 383

(D. Conn. 1970) ...................    14
Goodyear Tire & Rubber Co. v. Altamont Springs

Hotel, 206 Ky. 494, 267 S.W. 55 (1925) ................... 34
Gormely v. Clark, 134 U.S. 338 (1890) ..........................  40
Gulbenkian v. Gulbenkian, 147 F.2d 173 (2d Cir. 1945) 42

Hale v. Allinsor, 188 U.S. 56 (1903) ............................... 45
Harkless v. Sweeny Independent School Dist., 427 F.2d

319 (5th Cir. 1970) ..................... ..................................... 39
Hayes v. Seaboard Coast Line R.R. Co., 46 F.R.D. 49

(S.D. Ga. 1960) ................... .......... .........................14-15,38
Heirn v. Bridault, 37 Miss. 209 (1859) ........................... 31
Hines v. Imperial Naval Store Co., 101 Miss. 802, 58

So. 650 (1911) .................................................................. 41
Hipp v. Babin, 60 U.S. 19 (1857) ..... .............................  44
Horner v. Harvey, 3 N.Mex. 307, 5 P. 329 (1885) .......  35
Hundley v. Milner Hotel Management Co., 114 F. Supp.

206 (W.D. Ky. 1953) ......................................................  34

PAGE



40
I.H.P. Corp. v. 210 Central Park South. Corp., 228

N.Y.S.2d 883, 16 A.D.2d 461 (1962) ...........................
Imperial Shale Brick Co. v. Jewett, 169 N.Y. 143, 62

N.E. 167 (1901) .... ............... ............. ............................
In Be Consolidated Properties, No. 228 (Ohio Civil

Bights Commission), EQH If 17,506 (1972) ...............
International Bankers Life Ins. Co. v. Holloway, 368 

S.W.2d 567 (Tex. 1963) ..................................................

Jackson v. Concord Company, 45 N.J. 113, 253 A.2d
793 (1969) ....... ............. ............... .......... ..........................

Jacoby v. Wiggins, No. II-1582 (Pa. Human Belations
Commission), EOH If 17,502 (1972) .... ......... ............

Johnson v. Georgia Highway Express, 417 F.2d 1122
(5th Cir. 1969) ......................... .......... .........................14,

Johnson v. Georgia Highway Express, 47 P.B.D. 327
(N.D. Ga. 1968) ............. ................................................

Jones v. Clifton, 101 U.S. 225 (1880) ..........................
Jones v. Mayer Co., 392 IT.S. 409 (1968) .................... 33,

Karns v. Allen, 135 Wis. 48, 115 N.W. 357 (1908) .......
Katchen v. Landy, 382 U.S. 323 (1966)..... ......... ....... 9, 48,
Keller Products, Inc. v. Bubber Linings Corp., 213

F.2d 382 (7th Cir. 1954) ......... ....................... ........... ..41-
Keltner v. Harris, 196 S.W. 1 (Mo. 1971) ...................
Kennedy v. Lakso Co., 414 F.2d 1249 (3d Cir. 1969) ....
Kisten v. Hildebrand, 48 Ky. 72 (1848) ...... ............ .......
Koehler v. Bowland, 275 Mo. 573, 205 S.W. 217 (1918)

Lawton v. Nightingale, 345 F. Supp. 683 (N.D. Ohio, 
1972) .................................................................................

Le Blanc v. Southern Bell Telephone & Telegraph Co.,
333 F. Supp. 602 (E.D. La. 1971) .................. ............

Lea v. Cone Mills, C.A. No. C176-D-66 (N.D. N.C. 
order dated March 25, 1968) ..........................................

40

14

41

14

14

38

14
30
36

40
50

-42
30
41
35
30

24

37

15



V I

Livingston v. Woodworth, 56 U.S. (15 How.) 546
(1854) ...............................................................................  40

Lord v. Malakoff, No. H-71-0062 (Md. Commission on
Human Relations), EOH If 17,503 (1972) ................... 14

Los Angeles Investment Co. v. Gary, 181 Cal. 680, 186
P. 596 (1919) ................... ................................................. 31

Lowry v. Whitaker Cable Corporation, 348 F. Supp.
202 (W.D. Mo. 1972) .........   14

Lnria v. United States, 231 U.S. 9 (1913) ....................... 29

McElrath v. United States, 102 U.S. 426 (1880) ........... 29
Malat v. Riddell, 383 U.S. 569 (1966) ..........................  12
Marbury v. Madison, 1 Cranch (U.S.) 137 (1803) ...... 47
Marr v. Rife, Civ. No. 70-218 (S.D. Ohio, opinion dated

August 31, 1972) ..........      31
Middletown Bank v. Russ, 3 Conn. 135 (1819) ............... 40
Mitchell v. De Mario Jewelry, 361 U.S. 288 (1960) ____ 48
Mobile v. Kimball, 102 U.S. 691 (1881) ....................... 40
Moore v. Dempsey, 261 U.S. 86 (1923) ........................ 26
Moss v. Lane Company, 50 F.R.D. 122 (W.D. Va.

1970) .......... ....................       14
Moss v. Lane Company. 471 F.2d 853 (4th Cir. 1973) .... 16

Newman v. Piggie Park, 390 U.S. 400 (1968) ..............  37
N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1

(1937) .......  13-14,28
Northwest Airlines, Inc. v. Airline Pilots Assn., Inti.,

373 F.2d 136 (8th Cir. 1967) ......................................  29

Oceanic Steam Navigation Co. v. Stranahon, 214 U.S.
320 (1909) ........................................      29

Ochoa v. American Oil Co., 338 F. Supp. 914 (S.D. Tex.
1972) .........     14

Osage Oil & Refining Co. v. Chandler, 287 F. 848 (2d 
Cir. 1923)

PAGE

30



V ll

Parker v. Dee, 2 Ch. Cas. 200, 22 Eng. Rep. 910 (Ch.
1674) .................................................................................  40

Parker v. Flint, 12 Mod. Rep. 254 (1699) ....................... 35
Parmalee v. Morris, 218 Mich. 625, 188 N.W. 330

(1922) ...............................................................................  31
Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830) .......  27
Passavant v. United States, 148 U.S. 214 (1893) .......  29
Pease v. Rathbun-Jones Engineering Co., 243 U.S. 273

(1917) ...............................................................................  40
People ex rel. Gaskill v. Forest Home Cemetery Co.,

258 111. 36, 101 N.E. 219 (1913) ................................... 30
Porter v. Warner Holding Co., 328 U.S. 395 (1946) .... 39

Queensborough Land Co. v. Cazeaux, 136 La. 724, 67 
So. 641 (1915) .....    31

Randolph Laboratories, Inc. v. Specialties Develop­
ment Corp., 213 F.2d 873 (3d Cir. 1954) ................... 41

Rathbone v. Warren, 10 N.Y. 587 (1813) ....................... 40
Regina v. Rymer [1877], 2 Q.B.D. 136 ...........................  33
Rex v. Ivens [1835], 7 C. & P. 213, 173 Eng. Rep. 94

(N.P.) ...........        33-34
Rex v. Luellin [1700], 12 Mod.L.Rep. 445, 88 Eng. Rep.

141 (K.B.) ....................   33,35
Roberts v. Case Hotel Co., 106 Misc. 481. 175 N.Y.S.

123 (Sup. Ct. App. Term 1919) ..................................  35
Robins v. Grey [1895], 2 Q.B. 501 ........ .......................... 33
Robinson v. Lorillard Corporation, 444 F.2d 791 (4th

Cir. 1971) .................... ........... ........................................  14
Robinson v. Pauley, No. H 29-72 (W. Va. Human

Rights Commission), EOH [[17,504 (1972) ............... 14
Rogers v. Clarence Hotel, 2 W.W.R. 545 (1940) .... ......  35
Root v. Railway Co., 105 U.S. 189 (1882) ......................  41

PAGE



V l l l

Ross v. Bernhard, 396 U.S. 531 (1970) .......................... 45-46
Rutland Marble Co. v. Ripley, 77 U.S. (10 Wall.)

339 (1870) ...... ............ ......................................................  38

Scott v. Neely, 140 U.S. 106 (1891) ..............................  45
Sealey v. Tandy [1902], 1 K.B. 296 ................................... 34
Sexton v. Wheaton, 21 U.S. (8 Wheat.) 229 (1824) .......  30
Seymour v. McCormick, 57 U.S. (16 How.) 480 (1853 ) 41
Shearer v. Porter, 155 F.2d 77 (8th Cir. 1946) ...........  42
Shelley v. Kraemer, 334 U.S. 1 (1948) ..........................  31
Shepherd v. Florida, 341 U.S. 50 (1951) ....................... 26
Shorter v. Shelton, 183 Ya. 819, 33 S.E.2d 643 (1945) .... 34 
Smith v. Hampton Training School for Nurses, 360

F.2d 577 (4th Cir. 1966) ..............................................  39
State v. Hicks, 174 N.C. 802, 93 S.E. 964 (1917) ........ . 35
State v. Steele, 106 N.C. 766, 11 S.E. 478 (1890) ____ 35
Stewart v. Griffith, 217 U.S. 323 (1910) ........................... 38
Stockton v. Russell, 54 F. 224, 228 (5th Cir. 1892) .......  39
Swofford v. B. & W. Inc., 336 F.2d 406 (5th Cir.), cert.

denied 379 U.S. 962 (1964) ........................................... 41
Swoll v. Oliver, 61 Ga. 248 (1878) ..................................  31

Taylor v. Ford Motor Co., 2 F.2d 473 (N.D. 111. 1924) 41 
Thompson v. Lacy [1820], 3 B. & Aid. 283, 106 Eng.

Rep. 667 (K.B.) .............................................................. 33-34
Tilghman v. Proctor, 125 U.S. 136 (1888) ....................... 41
Trafficante v. Metropolitan Life Insurance Co., 409

U.S. 205 (1972) ....................... ......................................... 36
Trop v. Dulles, 356 U.S. 86 (1958) .... ..............................  27

Union Oil Co. v. Reconstruction Oil Co., 20 Cal. App.2d
170, 66 P.2d 1215 (1937) ................................................ 41

United Cooperative Realty Co. v. Hawkins, 269 Ky.
563, 108 S.W.2d 507 (1937)

PAGE

31



IX

United States v. Ambac Industries, 15 F.R. Serv. 2d

PAGE

607 (D. Mass. 1971) ......................................................  14
United States v. Barnett, 376 U.S. 681 (1964) ...............  25
United States v. Cooper Corporation, 312 U.S. 600

(1941) ......    11
United States v. Debs, 64 F. 724 (N.D. 111. 1894) .......  39
United States v. Di Re, 332 U.S. 581 (1948) .............. 27,49

Welby v. John Duke, of Rutland [1773], 2 Brown C. &
P. 39, 1 English Reports 778 (K.B.) ........................... 44

White v. White, 108 W. Va. 128, 150 S.E. 531 (1929) .... 31 
Whitchurch v. Golding, 2 P. Wms. 541, 24 Eng. Rep.

852 (Ch. 1729) ....     40
Whitehead v. Shattuck, 138 U.S. 146 (1891) ................... 44
Wickwire v. Reinecke, 275 U.S. 101 (1929) ................... 29
Willard v. Taylor, 75 U.S. (8 Wal.) 557 (1870) ........... 38
William Whitman Co. v. Universal Oil Products Co.,

125 F. Supp. 137 (D. Del. 1954) ................................... 41
Williams v. Joyce, 4 Ore. App. 482, 479 P.2d 513

(1971) ........................    14
Williams v. Travenol Laboratories, 344 F. Supp. 163

(N.D. Miss. 1972) .......................................................... 14
Wirtz v. Wheaton Glass Co., 253 F. Supp. 93 (D. N.J.

1966) .................................................................................  29
Wyatt v. Adair, 215 Ala. 363, 110 So. 801 (1926) .......  30

Yakus v. United States, 321 U.S. 414 (1944) ............... 39

Statutes:

7 U.S.C. § 135g(b) .....     12,13

7 U.S.C. § 136k ................ ........... ................................. 13

7 U.S.C. § 1595 .............................................................  13

9 U.S.C. § 4 ................................................................. 11,13



X

11 U.S.C. § 42 ...............................................................11,13

18 U.S.C. § 3691 .............................................................. 13

18 U.S.C. § 3692 .............................................................  13

19 U.S.C. § 1305 ....... ................................ .....................  13

21 U.S.C. § 334(b) .......................................................... 13

21 U.S.C. § 882 ................................................. ..............  13

21 U.S.C. § 1049 ..............................................................  13

25 U.S.C. § 1302 ..............................................................  13

28 U.S.C. § 384 ................................................................ 45

28 U.S.C. § 959 ............. ..................................................  13

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

28 U.S.C. § 1343 ................................ ................. ...........  21

28 U.S.C. § 1861 ..............................................................  21

28 U.S.C. § 1866 ............... ....................... .......................  12
28 U.S.C. § 1872 .............................................................. 13

28 U.S.C. § 1873 ........................ ....... ............................. 13

28 U.S.C. § 1874 ........................................ ..... ...............  i i

28 U.S.C. § 2402 .............................................................. 13

29 U.S.C. § 151 ................................................................  28

39 U.S.C. § 840 ...............................................................  13

42 U.S.C. § 1971 .......... ...................................................  21

42 U.S.C. § 19731 ...... ........................................... .........  23

42 U.S.C. § 1975 .............................................................. 21

42 U.S.C. § 1982 .............................................................  33

PAGE



XI

42 U.S.C. § 1983 .............................................................. 24

42 U.S.C. §1995  ............................................ 13,17,21-22

42 U.S.C. § 2000e-5 ......................... ................ .............  23

42 U.S.C. § 2000e(f) .................. ............. .....................  14

42 U.S.C. § 2000.li ........................................... ................  23

42 U.S.C. § 3604(a) ................................ .......... ............  2

42 U.S.C. § 3610 ............................................................11,13

42 U.S.C. § 3612  ................................................ 3,10,11, 36

42 U.S.C. § 3614  ........................................ ............... 36, 50

42 U.S.C. § 3615 ....... ......................................................  13

46 U.S.C. § 688 ...............................................................  13

48 U.S.C. §413 ............................................... ................  13

Emergency Price Control Act of 1942 ......... .............  29

Jury Selection and Service Act of 1968 ......................  12

Alaska Statutes, Title 18, § 22.10.020(c) ...................... . 13

Ark. Stat. Ann. 671-1801 (Suppl. 1961) ..................... . 36

California Civil Code § 35738(3) ..................................  13

G-enueral Statutes of Connecticut, § 53-36 ................ . 13

Del. Code Ann., tit. 24, § 1501 (1953) ........................... 36

Del. Code Anno., § 4605(e) ............................................ 13

Fla. Stat. Ann. §509.092 (1961) ...................... ...........  36

Hawaii Eev. Stat. § 515-13(b) ( 7 ) ..................................  13

Ind. Code § 22-9-6(k) ( i ) .................................................. 13

Iowa Code § 105A.9(12).......................................... .......  13

PAGE



Kan. Stat. Anno. § 44-1019 ..........................................  13

Ky. Key. Stat, § 344.230 .......................................... .......  13

Anno. Code Md. Article 49B, § 14(e) ..........................  13

Anno. Laws of Mass., Ch. 151 B, § 5 ........................... 13

Minn. Statutes, §363.071(2) .................. .......................  13

Miss. Code Ann. § 2046.5 (1959).......................... .......... 36

N.H. Key. Stat. Anno. § 354-A :9 ..................................  13

N. J. Stat. Anno. § 10:5-17...................... ........ ...............  13

New Mex. Stat. Anno. § 4-33-10 E ................................  13

N.Y. Executive Law § 297(4) (c) .......................... ........  13

Ohio Kev. Code Anno., § 4112.05(g) ..........................  13

Ore. Kev. Stat. § 659-010-.110 ....................................... 14

Pa. Stat. Anno., Title 43, Ch. 17, § 959 ....................... 13

General Laws of R.I. § 34-7-5( L ) ...................... ....... . 13

S.D. Human Relations Act of 1972, L. 1972, S.B. I l l ,  
§11(12) .........................................................................  13

Tenn. Code Ann. § 62-710 (1955) .............................. . 36

Wash. Kev. Code § 49.60.225 ..........................................  13

W. Va. Code, § 5-11-10...........   13

Wise. Stat. Anno. § 101.60..............................................  13

Other Authorities:

Federal Rules of Civil Procedure.......................6, 8,16,40

H.K. 1507, 75th Cong. 2d Sess.....................................  20

H.R. 4453, 81st Cong. 2d Sess......................................  20

XIX
PAGE



X l l l

PAGE

H.R. 14765 89th Cong. 2d Sess. 12
S. 1358, 90th Cong. 1st Sess. 18

S. 3296, 89th Cong. 2d Sess. 15

Hearings Before a Subcommittee of the House Judi­
ciary Committee, 89th Cong., 2d Sess. (1966) ....12,17-18

Hearings on S. 3296 before the Subcommittee on Con­
stitutional Rights of the Senate Judiciary Com­
mittee, 89th Cong., 2d Sess. (1966) ....... ............16-17-18

Hearing Before a Subcommittee of the Senate Bank­
ing and Currency Committee, 90th Cong., 1st Sess. 
(1967) ............................................................. ....... .....  33

Hearings Before the Subcommittee on Housing and 
Urban Affairs of the Senate Banking and Cur­
rency Committee, 90th Cong., 1st Sess. (1967) ....18,49

82 Cong. Rec................................................................. 20

83 Cong. Rec............   21

96 Cong. Rec.................     20-21

102 Cong. Rec................................................................21-22

103 Cong. Rec..........................................................21-22,26

106 Cong. Rec...........................................  23

110 Cong. Rec....................   23

111 Cong. Rec.............................................................   24

112 Cong. Rec.... ............................................................  15

114 Cong. Rec.........................................    32

118 Cong. Rec................................................................. 24

Halsburg, Laws of England (2d ed. 1935) ...........33-34-35



xiy

James, Civil Procedure (1965)......................................  40

Moore’s Federal Practice ........... ............................. 9,12,16

Pomeroy, Equity Jurisprudence (5th ed. 1941) -37,40,42

Story on Bailments (4th ed. 1866) ..............................  35

Story, Equity Jurisprudence (14th ed. 1918) ...........  40

Garry, “Attacking Racism in Court Before Trial,” 
Ginger, Minimizing Racism in Jury Trials (1969) 26

Hartman, “Racial and Religious Discrimination by 
Innkeepers in the U.S.A.” 12 Mod. L. Rev. 449 
(1950) ...........................................................................  35

Developments in the Law, Employment Discrimina­
tion and Title VII of the Civil Rights Act of 1964,
84 Harv. L. Rev. 1109...      25

Comment, The Right to Jury Trial Under Title VII 
of the Civil Rights Act of 1964, 37 U. Chi. L. Rev.
167 .................................................................................  25

Note, The Right to Nonjury Trial, 74 Harv. L. Rev.
1176 (1961) - .... ..........................    25

Note, Jones v. Mayer: The Thirteenth Amendment 
and the Federal Anti-Discrimination Laws, 69 
Colum. L. Rev. 1019 ..........   25

Note, Hotel Law in Virginia, 38 Va. L. Rev. 815 
(1952) ............    35

Note, An Innkeeper’s ‘Right’ to Discriminate, 15 
U. Fla. L. Rev. 109 (1962)

PAGE

35



I n  the

(tart of %  lotted States
October Term, 1973 

No. 72-1035

J ulia  R o g e r s ,

v.

Petitioner,

L eroy L oether and M ariane L oether, his wife, 
and M rs. A n th o n y  P erez

ON W R IT  OF CERTIORARI TO T H E  U N IT E D  STATES COURT OF APPEALS 

FOR T H E  SE V E N TH  CIRCUIT

BRIEF FOR PETITIONER

Opinions Below

The opinion of the District Court denying the demand 
for jury trial is reported at 312 P. Supp. 1008, and is set 
out in the Appendix (23a-28a). The opinion of the Dis­
trict Court awarding punitive damages is unreported, and 
is set out in the Appendix (47a-51a). The opinion of 
the Court of Appeals is reported at 467 F.2d 1110, and is 
set out in the Appendix (53a-73a).



2

Jurisdiction

The Court of Appeals entered judgment on September 
29, 1972. On December 14, 1972, Mr. Justice Rehn- 
quist extended tbe time for filing tbis petition to January 
27, 1973. Tbe petition was filed on January 26, 1973, and 
was granted on June 11, 1973. Jurisdiction of this Court is 
invoked under 28 U.S.C. § 1254(1).

Question Presented

Whether Title V III of the 1968 Civil Rights Act or the 
Seventh Amendment provide a right to jury trial to a 
landlord in a civil action alleging that he refused to rent 
an apartment to plaintiff because of her race and seeking 
an injunction and punitive damages.

Constitutional and Statutory Provisions Involved

1. United States Constitution, Amendment VII provides:

In suits at common law, where the value in contro­
versy shall exceed twenty dollars, the right of trial 
by jury shall be preserved, and no fact tried by a 
jury, shall be otherwise reexamined in any Court of 
the United States, than according to rules of the com­
mon law.

2. Section 804(a) of the Civil Rights Act of 1968, 42 
U.S.C. § 3604(a) provides :

As made applicable by section 803 and except as 
exempted by sections 803(b) and 807, it shall be un­
lawful—

(a) To refuse to sell or rent after the making of a 
bona fide offer, or to refuse to negotiate for the sale



3

or rental of, or otherwise make unavailable or deny, 
a dwelling to any person because of race, color, re­
ligion, or national origin.

3. Section 812 of the Civil Rights Act of 1968, 42 U.S.C.
§ 3612, provides:

(a) The rights granted by sections 803, 804, 805, 
and 806 may be enforced by civil actions in appropriate 
United States district courts without regard to the 
amount in controversy and in appropriate State or 
local courts of general jurisdiction. A civil action 
shall be commenced within one hundred and eighty 
days after the alleged discriminatory housing practice 
occurred: Provided, however, That the court shall 
continue such civil case brought pursuant to this sec­
tion or section 810(d) from time to time before bring­
ing it to trial if the court believes that the conciliation 
efforts of the Secretary or a State or local agency are 
likely to result in satisfactory settlement of the dis­
criminatory housing practice complained of in the com­
plaint made to the Secretary or to the local or State 
agency and which practice forms the basis for the 
action in court: And provided, however, That any sale, 
encumbrance, or rental consummated prior to the issu­
ance of any court order issued under the authority of 
this Act, and involving a bona fide purchaser, en­
cumbrancer, or tenant without actual notice of the 
existence of the filing of a complaint or civil action 
under the provisions of this Act shall not be affected.

(b) Upon application by the plaintiff and in such 
circumstances as the court may deem just, a court of 
the United States in which a civil action under this 
section has been brought may appoint an attorney for 
the plaintiff and may authorize the commencement of



4

a civil action upon proper showing without the pay­
ment of fees, costs, or security. A  court of a State 
or subdivision thereof may do likewise to the extent 
not inconsistent with the law or procedures of the State 
or subdivision.

(c) The court may grant as relief, as it deems ap­
propriate, any permanent or temporary injunction, 
temporary restraining order, or other order, and may 
award to the plaintiff actual damages and not more 
than $1,000 punitive damages, together with court costs 
and reasonable attorney fees in the case of a prevail­
ing plaintiff: Provided, That the said plaintiff in 
the opinion of the court is not financially able to as­
sume said attorney’s fees.

Statement of the Case

On November 7, 1969, plaintiff Julia Rogers commenced 
this action in United States District Court for the Eastern 
District of Wisconsin against Leroy and Mary Loether, 
white owners of an apartment in Milwaukee, and their 
agent Mrs. Anthony Perez. The complaint alleged the de­
fendants had violated Section 804 of the Civil Rights Act 
of 1968 by refusing to rent an apartment to Mrs. Rogers 
because she is black. Plaintiff requested injunctive relief 
and $1000 punitive damages hut neither alleged nor sought 
actual damages (2a-6a). Jurisdiction of the District 
Court was based on Section 812 of the Act. After an 
evidentiary hearing on November 20, 1969, the court issued 
a preliminary injunction forbidding rental of the apart­
ment pending final determination of the action (16a-17a). 
Defendants answered and demanded a jury trial of issues 
of fact.



5

Subsequent to the granting of the preliminary injunction, 
and at the urging of the District Court, repeated efforts 
were made to settle this matter by arranging for the plain­
tiff to move into the apartment at issue. Defendant Leroy 
Loether, however, adamantly refused to rent it to her. 
Finally, in April of 1970, five months after commencing 
this action, plaintiff was forced to lease a different apart­
ment, and consented to the lifting of the preliminary injunc­
tion (47a).

On May 19, 1970, the District Court issued its opinion 
and order denying defendants’ request for a jury trial 
(23a-28a). The District Court concluded that Title V III of 
the Civil Bights Act of 1968 authorized the trial judge 
rather than a jury to assess damages, and that the court 
could exercise this equitable power consistent with the com­
mands of the Seventh Amendment. The District Court 
awarded $250 in punitive damages, but no costs, attorneys 
fees, or actual damages (47a-51a).

The Seventh Circuit reversed, holding that defendants’ 
jury trial demand should have been granted. The court’s 
opinion centered on its conclusion that an action to enforce 
Title V III of the Civil Rights Act of 1968 is “ in the nature 
of a suit at common law” .

The court’s extended constitutional analysis culminated 
in statutory interpretation. It found the district court’s 
statutory analysis “persuasive but not compelling” and 
concluded that the statute “ implies, without expressly 
stating, that a jury’s participation is appropriate” when 
damages are sought. In the end the court viewed as 
“ controlling” a canon of construction requiring the inter­
pretation of statutes to avoid “grave doubts” of unconsti­
tutionality and concluded that Title V III of the Civil Rights 
Act of 1968 itself requires jury trials when damages are 
claimed.



6

Summary of Argument

I. a. The statutory language of Title VIII clearly con­
templates that open housing cases arising thereunder shall 
be tried by a judge without a jury. Section 812(c) directs 
that “the court” may award damages and injunctive relief. 
The word “court” is used elsewhere in the statute where 
it can only refer to the judge, such as the provision in 
section 814 authorizing the court to expedite these cases. 
“ The court” is used to denote the trial judge, as opposed 
to any jury, in the Federal Rules of Civil Procedure and 
numerous statutes. Congress must be presumed to have 
intended the “court” to have the same meaning throughout 
Title VIII, and to have the same meaning with which it 
was used by Congress elsewhere.

Had Congress desired to require a jury trial in these 
cases, it would have done so expressly, using the words 
“jury” or “ jury trial” , as it has in at least 22 other statutes.

b. At the 1966 Senate hearings on Title VIII, Attorney 
General Katzenbach expressly testified that Title VIII did 
not authorize jury trials. A  committee member suggested 
amending the bill to provide juries as to some issues, but 
no such amendment was passed. The Attorney General’s 
opposition to jury trials appears to have been based on 
his concern, expressed elsewhere in the hearings, that juries 
might refuse to enforce civil rights legislation.

As first proposed in 1966, Title VIII expressly provided 
for a jury trial in certain cases of criminal contempt. The 
different treatment of civil actions in the 1966 bill betokens 
a different intent on the part of the draftsmen.

c. Title V III should not be interpreted as requiring 
jury trials merely to avoid possible doubts as to its validity 
under the Seventh Amendment, for there are equally im­



7

portant constitutional policies which, might be adversely 
affected by such a statutory requirement.

For 35 years great concern has been expressed in Con­
gress that juries, particularly in the South, would refuse 
to rule against white defendants in civil rights cases. Con­
gressional proponents of civil rights legislation have con­
sistently opposed jury trials in actions to enforce such 
statutes on the ground that hostile juries would nullify 
the proposed laws. Congress has granted a limited right 
to jury trial in contempt cases arising under some civil 
rights statutes, hut has refused to do so for civil enforce­
ment proceedings. A  jury trial requirement in Title VIII 
cases might well defeat the statutory purpose of enforcing 
the Thirteenth and Fourteenth Amendments. Similarly, 
a jury hostile to blacks or open housing would be unlikely 
to afford an individual plaintiff her right to the fair hear­
ing guaranteed by the Due Process clause of the Fifth 
Amendment.

Plaintiff does not maintain that these constitutional con­
siderations could prevent a jury trial if a jury were other­
wise required by the Seventh Amendment. But since there 
are constitutional policies militating both for and against 
jury trials, the statute should be given its plain meaning 
and its constitutionality under the Seventh Amendment 
directly faced and resolved.

II. a. There is no constitutional right to a jury trial in 
actions enforcing rights unknown at common law. This is 
such a case. At common law the owner of real property 
enjoyed unfettered discretion to refuse to sell or lease his 
property to any person for any reason. This discretion 
included the right to refuse to rent or lease property be­
cause of the race of the would-be tenant or buyer. Title 
V III was enacted for the purpose of reversing this principle 
of common law.



8

The obligation of innkeepers at common law to serve all 
travellers seeking shelter is of no relevance here. That 
duty was limited to transients, not persons seeking perma­
nent lodgings, and extended only to wonld-be guests who 
had no home near the inn. Moreover in the United States 
innkeepers were permitted to refuse to provide accommoda­
tions because of the race of a traveller.

b. The various forms of relief available in a Title VIII 
case are part of a single integrated equitable remedy. The 
statute contemplates that the judge will fashion a remedy 
in each case which will best promote the statutory policy 
of equal access to housing. The award of actual or punitive 
damages is discretionary, and in exercising that discretion 
the court may well consider whether injunctive relief has 
been awarded. Thus when, as here, actual or punitive dam­
ages are awarded, that relief is not damages as they were 
known at common law, but is part of an integrated equitable 
remedy awarded only after consideration of the availability 
and effectiveness of traditional equitable remedies.

c. Prior to the merger of law and equity by the Federal 
Eules of Civil Procedure, courts of equity had the unques­
tioned authority to award legal relief incidental to an 
equitable claim without recourse to a jury. Both actual and 
punitive damages were awarded in cases involving an 
equitable claim where resolution of these legal issues was 
essential to complete justice. This doctrine of equitable 
cleanup was applied even where, as in the instant case, the 
request for equitable relief was withdrawn or denied after 
the commencement of the action. Thus before the promulga­
tion of the Federal Eules in 1938, this case would have been 
heard in equity and without a jury.

Since the merger of law and equity, this Court has ex­
panded the right of jury trial in civil actions. Beacon



9

Theatres v. Westover, 359 U.S. 509 (1959). The meaning of 
the Seventh Amendment, however, was not changed by the 
Federal Exiles. Rather, Beacon Theatres and its progeny 
apply an equitable practice, originating before the Seventh 
Amendment, of declining to assume jurisdiction over cases 
which could be adequately resolved at law so as to avoid 
unnecessarily impairing the rights available in legal pro­
ceedings. The instant case, however, involves a statutory 
requirement that Title V III cases be tried to the court 
without a jury. In such a case, as in Katchen v. Tandy, 
382 U.S. 323 (1966), Beacon Theatres and its progeny are 
inapplicable and the law must be upheld unless it violates 
the Seventh Amendment itself. Since this case could have 
been heard in equity in 1791, the statute is constitutional.

L
Title VIII Provides That All Issues Shall Be Tried 

By a Judge Without a Jury.

a. Statutory Language

Congress has dealt in three ways with the question of 
whether there should be a jury trial in, civil litigation 
arising under Federal statutes. In some statutes Congress 
has provided that all issues shall be tried before a judge 
or referee alone, without a jury. See e.g., Katchen v. 
Landy, 382 U.S. 323, 328-336 (1966) (Bankruptcy Act). A 
second group of statutes require that some or all issues 
must be decided by a jury, regardless of whether a jury 
trial is mandated by the Seventh Amendment. See 5 
Moore’s Federal Practice §38.12; note 2, infra. A  third 
class of statutes make no reference to the trier of fact, 
leaving the question of jury trial vel non to be resolved 
solely by reference to the Seventh Amendment. See e.g.,



10

Beacon Theatres v. Westover, 359 U.S. 500, 504 (1959) 
(Declaratory Judgment Act).

In the instant case plaintiff submits that Title V III of 
the 1968 Civil Rights Act requires that all questions of 
law and fact in any action arising thereunder be decided 
by the judge, not by a jury. The District Court construed 
that statute in this manner. (26a-28a). The defendants 
have heretofore maintained that Title V III neither required 
nor forbade a jury trial, and that the question must be 
resolved by reference to the Seventh Amendment. Hear­
ing of April 30, 1970, pp. 2, 13; Brief for Defendant- 
Appellant, p. 18; District Court Brief In Support of Jury 
Trial, p. 6. The Court of Appeals went beyond the posi­
tion urged by defendant and held that Title VIII requires 
a jury trial (71a-73a).

The express language of the statute clearly indicates that 
the court, not a jury, is to decide whether to award dam­
ages. Section 812(c) of the Civil Rights Act of 1968, 42 
U.S.C. § 3612(c), provides:

The court may grant as relief, as it deems appropriate, 
any permanent or temporary injunction, temporary 
restraining order, or other order, and may award to 
the plaintiff actual damages and not more than $1,000 
punitive damages, together with court costs and rea­
sonable attorney fees in the case of a prevailing plain­
tiff. Provided, that the said plaintiff in the opinion of 
the court is not financially able to assume said attor­
ney’s fees. (Emphasis added)

The meaning of “ the court” is undeniably the same through­
out this section. The entity authorized to award actual and 
punitive damages is the same entity authorized to grant in­
junctive relief, temporary restraining orders, court costs,



11

and attorney’s fees. It is beyond question that only the trial 
judge, sitting without a jury, would pass on injunctive re­
lief or costs and fees, and the statutory language requires 
that the question of damages be resolved in the identical 
manner.

The phrase “ the court” is used elsewhere in Title VIII 
in a context where it can only refer to the trial judge sit­
ting alone, not a jury or the judge with a jury. In litigation 
following the failure of conciliation under the statute, it is 
“ the court” which may enjoin discrimination or order af­
firmative action. 42 U.S.C. § 3610(d). If, after the com­
mencement of litigation, conciliation efforts appear likely 
to result in a settlement, “ the court” is required to continue 
the case. 42 U.S.C. § 3612(a). “ The court” is authorized, 
under circumstances it deems just, to appoint an attorney 
for a plaintiff in civil litigation under the Act. 42 U.S.C. 
§ 3612(b). Any “ court” in which a Title V III case is insti­
tuted must expedite it in every way. 42 U.S.C. § 3614. 
When the same words are used in different parts of the 
same statute, they should be construed as having the same 
meaning throughout. United States v. Cooper Corporation, 
312 U.S. 600, 607 (1941).

In numerous other statutes the phrase “the court” is 
used not merely to denote the trial judge, but to distin­
guish a trial judge from any jury. “The court” is to assess 
the issue in contractual forfeiture cases unless a jury is 
requested by either party. 28 U.S.C. § 1874. In arbitration 
cases where a jury is authorized and requested, “ the court” 
refers the appropriate issues to the jurjr and “the court” 
issues the appropriate order thereafter. 9 U.S.C. § 4. An 
involuntary bankrupt is entitled to a jury as to certain 
issues, and the bankruptcy proceeding must be postponed 
if a jury is demanded and no jury is in attendance upon 
“the court.” 11 U.S.C. § 42. In proceedings to condemn a



12

variety of substances, “ the court” directs the manner of 
disposal or destruction of the goods after the jury, if re­
quested, has found they are in violation of the law. 7 U.S.O. 
§§135g(b), 136k, 1595; 21 U.S.C. §1049. The statutory 
right to a jury trial in certain cases does not apply to 
contempts committed in the presence of “the court.” 18 
U.S.C. §§3691, 3692; 42 U.S.C. §§ 1995, 2000h. The phrase 
“ the court” is used in the Federal Rules of Civil Procedure 
to denote the trial judge, particularly to describe responsi­
bilities of a judge as distinguished from those of a jury. 
Federal Rules of Civil Procedure 39, 47, 49, 50, 51, 52, 
53(e) (3), 57. Congress must be assumed to have been aware 
of this widely accepted meaning of the phrase “ the eourt” 
when it used that phrase in Title VIII. Malat v. Riddell, 
383 U.S. 569 (1966); Banks v. Chicago Grain Trimmers 
Association, 390 U.S. 459, rehearing den. 391 U.S. 929.

Particularly significant is the use of “the court” to de­
note the trial judge throughout the Jury Selection and 
Service Act of 1968. That statute provides that “ the court” 
may allow extra preemptory challenges, “ the court” passes 
on challenges for cause, “ the court” orders that names of 
prospective jurors be drawn, “ the court” may excuse jurors 
from service, “ the court” may order that jury records be 
retained for more than four years, and “ the court” is to 
pass on challenges to the jury selection procedure. 28 
U.S.C. §§ 1866-1870. These provisions were first proposed 
as Title I of the Civil Rights Act of 1966, the same bill 
which contained in Title IV the open housing provisions at 
issue in this case. See generally Hearings Before a Sub­
committee on Constitutional Rights of the House Judiciary 
Committee, 89th Cong. 2d Sess. (1966); H.R. 14765, 89th 
Cong. 2d Sess.1 The Jury Selection Act was finally en­

1 Section 406(c) of that bill was substantially the same as section 
812(c) of the statute finally enacted. See p. 15 infra.



13

acted two weeks before Title V III in 1968. It must be 
presumed that the draftsmen of the 1966 bill and the Con­
gress which passed these laws two years later intended 
“the court” to have the same significance in both.

Had Congress desired to require a jury trial, it would 
have done so expressly as it has elsewhere. In at least 22 
other statutes Congress has by law conveyed just such a 
right, in each case using the words “ jury” or “jury trial.” 2

Congress clearly knew how to make known any desire 
for jury trials in Title VIII cases; its failure to do so can 
only betoken its intention to have those cases tried before 
a judge. Had Congress wished to assure defendants jury 
trials in Title VIII cases, it would not have authorized 
state administrative proceedings in housing discrimination 
cases, since such proceedings do not involve any right to 
trial by jury. 42 U.8 .C. §§ 3610(c), 3615,3 * * * * * * 10 N.L.R.B. v. Jones

2 7 U.S.C. §§ 135g(b), 136k, 1595; 9 U.S.C. §4 ; 11 U.S.C. §42; 
18 U.S.C. §§ 3691, 3692; 19 U.S.C. § 1305; 21 U.S.C. §§ 334(b), 
882, 1049(a); 25 U.S.C. § 1302; 28 U.S.C. §§ 959, 1872, 1873, 1874, 
2402; 39 U.S.C. § 840; 42 U.S.C. §§ 1995, 2000h; 46 U.S.C. § 688; 
48 U.S.C. § 413.

3 At least twenty-four states have set up administrative agencies
empowered to award damages.

Eleven state statutes expressly mention damages. Alaska Stat­
utes, Title 18, § 22.10.020(c) ; California Civil Code § 35738(3);
General Statutes of Connecticut, § 53-36; Hawaii Rev. Stat. § 515-
13(b) (7 ); Ind. Code §22-9-6 (k) (i) ; Anno. Laws of Mass., Ch. 151
B, § 5; Minn. Statutes, § 363.071(2); New Mex. Stat. Anno. § 4-33-
10 E ; N.Y. Executive Law § 297 (4) (c) ■ General Laws of R.I. 
§ 34-7-5 (L) ; Wash. Rev. Code § 49.60.225. Twelve states authorize 
their agencies to order any affirmative action necessary to carry 
out the purposes of the state law. Del. Code Anno., § 4605(e); 
Iowa Code §105A.9(12); Kan. Stat. Anno. §44-1019; Ky. Rev. 
Stat. § 344.230; Anno. Code. Md. Article 49B, § 14(e) ; N.H. Rev. 
Stat. Anno. § 354-A :9; N. J. Stat. Anno. § 10:5-17; Ohio Rev. Code 
Anno., § 4112.05(G); Pa. Stat. Anno., Title 43, Ch. 17, § 959; S.D. 
Human Relations Act of 1972, L. 1972, S.B. I l l ,  § 11(12) ; W. Va. 
Code, § 5-11-10; Wise. Stat. Anno. § 101.60. These provisions have 
uniformly been held to authorize orders directing the payment of



14

& LaugJilin Steel Corp., 301 U.S. 1 (1937); Edwards v. 
Elliott, 88 U.S. 532, 557 (1874).

This construction of Title V III is supported by the word­
ing and judicial interpretations of section 706 of the Civil 
Eights Act of 1964, authorizing private actions to enforce 
the Title V II ban on employment discrimination. Section 
706(g), 42 U.S.C. § 2000e(f)  (g), provides that “ the court” 
may give injunctive relief and back pay.4 The lower courts 
reaching this question have uniformly held that all issues in 
a Title V II case should be heard and decided by a judge.6 * 4 5 *

damages. Jackson v. Concord Company, 45 N.J. 113, 253 A.2d 793 
(1969); Robinson v. Pauley, No. H 29-72 (W. Va. Human Rights 
Commission), Equal Opportunity in Housing [hereinafter “ EOH” ] 
ft 17,504 (1972) ; Bridges v. Mendota Apartments, No. 898-H (D.C. 
Commission on Human Rights), EOH ft 17,505 (1972); Jacoby v. 
Wiggins, No. H-1582 (Pa. Human Relations Commission), EOH 
ft 17,502 (1972) ; Lord v. Mala.koff, No. H-71-0062 (Md. Commission 
on Human Relations) EOH ft 17,503 (1972); In Re Consolidated 
Properties, No. 228 (Ohio Civil Rights Commission), EOH ft 17,506 
(1972). The Oregon statute, Ore. Rev. Stat. § 659, 010-.110, au­
thorizing orders to “ eliminate effects” of discrimination, has been 
held to authorize awards of damages. Williams v. Joyce, 4 Ore. 
App. 482, 479 P.2d 513 (1971).

4 “ If the court finds that the respondent has intentionally 
engaged in or is intentionally engaging in an unlawful em­
ployment practice charged in the complaint, the court may 
enjoin the respondent from engaging in such unlawful em­
ployment practice, and order such affirmative action as may 
be appropriate, which may include reinstatement or hiring of 
employees, with or without back pay.. .

5 Robinson v. Lorillard Corporation, 444 F.2d 791, 802 (4th Cir. 
1971); Johnson v. Georgia Highway Express, 417 F.2d 1122 (5th 
Cir. 1969) reversing 47 F.R.D. 327, 330-31 (N.D. Ga. 1968) ; Lowry 
v. Whitaker Cable Corporation, 348 F. Supp. 202, 209 n.3 (W.D. 
Mo. 1972); Williams v. Travenol Laboratories, 344 F. Supp. 163
(N.D. Miss. 1972) ;  Ochoa v. American OH Co., 338 F. Supp. 914 
(S.D. Tex. 1972); United States v. Anibac Industries, 15 F.R.Serv. 
2d 607 (D. Mass. 1971); Gillin v. Federal Paper Board Co., Inc., 52 
F.R.D. 383 (D. Conn. 1970) ; Moss v. Lane Company, 50 F.R.D. 122 
(W.D. Ya. 1970) ; Cheatwood v. South Central Bell Tel. & Tel Co., 
303 F.2d 754 (M.D. Ala. 1959); Hayes v. Seaboard Coast Line R.R.



15

b. Legislative History

The legislative history of Title V III indicates that the 
statute was intended to preclude jury trials in actions such 
as this. A  federal fair housing law was first proposed by 
President Johnson as part of the Civil Rights Act of 1966.* 6 
Section 406 of the administration bill, like section 812(c) 
of the statute enacted two years later, authorized “the 
court” to award damages.7 At the Senate hearings on 
1966 Senator Ervin expressly inquired as to whether a 
jury trial was provided by the proposed bill.

Senator Ervin. Now, I would like to know under 
the same subsection (c) of section 408 [sic] who deter­
mines the amount of damages that are to be awarded 
if a case is made out under Title IV  of the bill.

Attorney General Katzenbach. The court does.
Senator Ervin. That is the judge.
Attorney General Katzenbach. Yes, sir.
Senator Ervin. There is no jury trial.
Attorney General Katzenbach. No, sir.
Senator Ervin. Well, is the administration opposed 

to or has it forsaken the ancient American love for 
trial by jury!

Co., 46 F.R.D. 49 (S.D. Ga. 1969); Culpepper v. Reynolds Metals 
Co., 296 F. Supp. 1232 (N.D. Ga. 1968), rev’d on other grounds 
421 F.2d 888 (5th Cir. 1970); Lea v. Cone Mills, Civil Action No. 
C176-D-66 (N.D. N.C., order dated March 25, 1968); Banks v. 
Local 136, I.B.E.W., Civil Action No. 67-598 (N.D. Ala., order 
dated January 25, 1968) ; Anthony v. Brooks, 67 LRRM 2897 
(N.D. Ga. 1967). Lea, Banks and Anthony were decided prior to 
the enactment of Title VIII.

6112 Con. Rec. 9390 (1966).
7 “ The court may grant such relief as it deems appropriate, 

including a permanent or temporary injunction, restraining 
order, or other order, and may award damages to the plaintiff, 
including damages for humiliation and mental pain and suffer­
ing, and up to $500 punitive damages.” S. 3296, § 406(c), 
89th Cong. 2d Sess., 112 Cong. Rec. 9397 (1966).



16

Attorney General Katzenbaeh. No, sir. I  assume if 
there was a suit here that was for purely damages that 
the court would use a jury.

Senator Ervin. Would the administration have any 
objection to subsection (c) being amended to spell out 
the fact that a man has a right to have the issues of 
fact arising in the case and the amount of damages 
determined by a jury instead of the judge.

Attorney General Katzenbaeh. No, in a damage suit 
I have no objection to that. With respect to the equi­
table relief I  would, obviously.8

Neither an amendment like that proposed by Senator Ervin, 
providing for a jury trial on all issues of fact, nor an 
amendment like that acquiesced to by Attorney General 
Katzenbaeh, providing for a jury trial as to damages, was 
passed by the Congress. Instead this provision was enacted 
two years later in essentially the form objected to by Sen­
ator Ervin.9 The reason for the Attorney General’s op­
position to jury trials in Title V III cases was made clear 
elsew’here. At a House hearing that year on the same Act

8 Hearings on S. 3296 before the Subcommittee on Constitutional 
Rights of the Senate Committee on the Judiciary, 89th Cong., 2nd 
Sess., pt. 2, 1178 (1966).

9 Attorney General Katzenbach’s prediction that courts would 
use juries in damage only actions seems to refer to the use of 
advisory juries. See Rule 39(c) Federal Rules of Civil Procedure. 
The term “use” as applied to juries is generally employed to de­
scribe the role given an advisory jury, not a jury sitting as the 
ultimate trier of the faets. See 5 Moore’s Federal Practice 39.10. 
Such advisory juries have in fact been used under the similar 
provision of Title VII. Cox v. Babcock and Wilcox Company, 471 
F.2d 13 (4th Cir. 1972) ; Moss v. Lane Company, 471 F.2d 853 
(4th Cir. 1973). The Attorney General’s assumption regarding 
future practice under Title VIII does not purport to be a con­
struction of those provisions. For reasons set forth infra, pp. 27 
and 39, a jury trial would not be constitutionally required in an 
action seeking only damages.



17

Attorney General Katzenbach. was asked Ms views on a 
proposed bill creating a civil action for damages on behalf 
of victims of civil rights related violence. He responded 
candidly, “I would not be sanguine in such community 
about the capacity to recover from a jury in that situation. 
I  would be inclined to doubt it might occur.” 10 The At­
torney General expressed similar reservations about the 
likelihood of obtaining convictions from any jury under a 
proposal to make criminal economic coercion in civil rights 
cases.11

This construction of section 812(c) is supported by the 
treatment of jury trials in contempt cases during the legis­
lative history of Title VIII. The first proposed provision, 
Title IV  of the 1966 Civil Rights Act, expressly directed 
that in any contempt proceeding for violation of any in­
junction under that Title the defendant would be entitled 
to a trial de novo before a jury if the court upon convic­
tion set a fine in excess of $300 or imprisonment for more 
than 45 days.12 Attorney General Katzenbach testified he

10 Hearings Before a Subcommittee of the House Judiciary Com­
mittee, 89th Cong., 2d Sess., 1183 (1966). The Civil Rights Act 
of 1966 and 1968 proposed by the President dealt with discrimina­
tion in jury selection as well as in housing. The Fair Housing Law 
and the Jury Selection and Service Act were enacted within weeks 
of each other in 1968. See p. 12 supra. The instant hearings 
dealt with both problems, and included testimony regarding the 
refusal of southern juries to convict white defendants in civil rights 
eases. See e.g. Id. at 1321 (Remarks of Congressman Ryan), 1331 
(Remarks of Congressman Diggs), 1142 (Remarks of Roy Wil­
kins) , 1519 (Remarks of Whitney Young).

11 Hearings on S. 3296 before the Subcommittee on Constitutional 
Rights of the Senate Judiciary Committee, 89th Cong., 2d Sess. 
175-176 (1966).

12 Section 410 of the bill provided: “All cases of criminal con­
tempt arising under the provisions of this title shall be governed 
by section 151 of the Civil Rights Act of 1957 (42 U.S.C. 1995).” 
Section 1995 provides in pertinent part:

In all cases of criminal contempt arising under the provi­
sions of this Act, the accused, upon conviction, shall be pun-



18

supported this limited right to jury trial as “ a quite wise 
balance between the need of the Court to have respect and 
to vindicate its own decisions, and for the right of the in­
dividual not to have any major encroachments on his free­
dom and liberty without the benefit of trial by jury.”  13 
The proposed Fair Housing Act of 1967, supported by the 
administration, made no express reference to the problem 
of criminal contempts,14 tacitly relegating that matter to the 
inherent power of the courts to enforce their decrees 
and the limitations thereon imposed by this Court. 
Cheff v. SchnacJcenberg, 384 TJ.S. 373 (1966).15 Similarly 
the bill finally enacted by Congress in 1968 deleted this jury 
trial requirement. Had the original draftsmen of section

ished by fine or imprisonment or both: Provided, however, 
That in case the accused is a natural person the fine to be 
paid shall not exceed the sum of $1,000, nor shall imprison­
ment exceed the term of six months: Provided further, That 
in any such proceeding for criminal contempt, at the discre­
tion of the judge, the accused may be tried with or without 
a jury: Provided further, however, That in the event such 
proceeding for criminal contempt be tried before a judge 
without a jury and the sentence of the court upon convic­
tion is a fine in excess of the sum of $300 or imprisonment 
in excess of forty-five days, the accused in said proceeding, 
upon demand therefor, shall be entitled to a trial de novo 
before a jury, which shall conform as near as may be to the 
practice in other criminal cases.

13 Hearings Before a Subcommittee of the House Judiciary Com­
mittee 89th Cong., 2d Sess. 1238-39 (1966) ; see also Hearings Be­
fore the Subcommittee on Constitutional Rights of the Senate 
Judiciary Committee, 89th Cong., 2d Sess. 17 (1966).

14 S. 1358, 90th Cong., 1st Sess.; see Hearings Before the Sub­
committee on Housing and Urban Affairs of the Senate Banking 
and Currency Committee, 90th Cong., 1st Ses. 1-7 (1967) (Testi­
mony of Attorney General Clark).

15 The right to jury trial afforded by the Sixth Amendment is, 
in general, limited to cases involving sentences in excess of six 
months. Bloom v. Illinois, 391 U.S. 194 (1968). The jury trial 
authorized by the 1966 bill covered sentences exceeding 45 days as 
well as fines of more than $300. See n. 12 supra.



19

812(c) in 1966 desired jury trials in civil actions there­
under, they would have said so expressly as they did at 
first regarding criminal contempts. It is unlikely that Con­
gress, having considered and declined to authorize jury 
trials in such contempt cases, would have required such 
trials in civil actions whose consequences to a defendant 
were far less serious.

c. Constitutional Consideration

The Court of Appeals refused to construe Section 812 as 
requiring that all issues he tried to a judge because of its 
“grave doubts” as to the constitutionality of the statute if 
so construed. The Court of Appeals applied the established 
canon of construction that, where fairly possible, statutes 
should be interpreted so as to avoid serious question as to 
their constitutionality (Pp. 71a-73a). That canon, however, 
has no application where important constitutional consider­
ations militate in favor of both alternative constructions 
under consideration. In this case the statutory require­
ment that these cases be tried to judges rather than juries 
is essential to carrying out the Act’s purpose of enforcing 
the guarantees of the Thirteenth and Fourteenth Amend­
ments, and to assure to plaintiffs the fair trial guaranteed 
by the Due Process Clause of the Fifth Amendment. Under 
such circumstances the canon can provide no guidance, and 
the Court must construe the statute in view of its language 
and history and then resolve any constitutional questions 
which may arise.

Congress’s decision to bar jury trials in Title VIII eases 
occurred in the context of 35 years of congressional con­
cern, debate and legislation concerning the role of juries 
in civil rights legislation. For several generations after 
Reconstruction Congress took no action to effectuate the 
guarantees of the Thirteenth, Fourteenth and Fifteenth



2 0

Amendments. During the 1930’s federal legislation was 
proposed under the Fourteenth Amendment to deal with 
lynchings in the South. One of the few such proposals to 
reach the floor of either house was a bill introduced by 
Senator Wagner to authorize criminal and civil damage 
actions against public officials or local governments which 
failed to prevent such lynchings.16 Senator Bailey of North 
Carolina, opposing the bill, openly predicted that southern 
juries would refuse to enforce the law.

I say to the Senate that when that kind of suit is 
brought, in the first place, the jury in the county is 
not going to bring in a verdict for the Attorney Gen­
eral of the United States. Oh no—we are not going 
to think of doing such a thing. . . .  I  have tried cases 
for 25 years in the United States and in the state 
courts of North Carolina, and I have never known 
any difference as to juries. They are a fine body of 
men in either circumstance, but they are men who have 
a sense of loyalty to their county and a sense of loyalty 
to their people.17

The anti-lynching bill never came to vote. In 1949 Con­
gressman Powell of New York proposed a Fair Employ­
ment Practices Act to end racial discrimination in hiring 
and promotion.18 Representative Powell proposed that en­
forcement be entrusted to a Fair Employment Practices 
Commission similar to the National Labor Relations Board, 
in part because “commission procedure avoids the neces­
sity of criminal penalties which juries hesitate to invoke.” 
96 Cong. Rec. 2168. This denial of a right to trial by

16 H.R. 1507, 75th Cong. 2d Sess.
17 82 Cong. Rec. 77 (1937); see also 83 Cong. Ree. 141 (1938) 

(Remarks of Senator Borah).
18 H.R. 4453, 81st Cong. 2nd Sess.



21

jury was objected to by opponents of the bill, 96 Cong. 
Rec. 2177, 2182, 2200, 2201, 2203, 2204, 2249, and an amend­
ment to deny enforcement powers to the Commission was 
narrowly passed, 96 Cong. Rec. 2253. The bill was ap­
proved by the House only to die in the Senate.

The conflict between the use of jury trials and the ef­
fective enforcement of civil rights legislation was fully 
aired in the debates leading to the Civil Rights Act of 
1957.19 When the bill was first proposed in 1956, Attorney 
General Brownell asked for civil rather than criminal sanc­
tions so as to avoid jury trials, 102 Cong. Rec. 13141, and 
the administration bill provided there would be no jury 
trial in contempt prosecutions for violation of injunctions 
obtained by the United States. Proponents of the bill ar­
gued at length that jury trials for contempt would nullify 
the statute, since racially prejudiced purors would refuse 
to convict.20 Numerous instances were cited in which south­
ern juries had refused to indict or convict white defendants 
accused of violence against blacks or civil rights workers.21

19 71 Stat. 634; see 28 U.S.C. §§ 1343, 1861; 42 U.S.C. §§1971, 
1975-1975e, 1995.

20 102 Cong. Rec. 13175. (Remarks of Congressman Roosevelt) ; 
102 Cong. Ree. 8409 (Remarks of Congressmen Madden, Scott), 
8412 (Remarks of Congressman Keating), 8418 (Letter from the 
Attorney General), 8488 (Remarks of Congressman Chudoff), 8505 
(Remarks of Congressman Addonizio), 8509 (Remarks of Congress­
man Pelley), 8535 (Remarks of Congressman Hillings), 8648 (Re­
marks of Congressman Dennison), 9193 (Remarks of Congress­
man Powell), 9216 (Remarks of Congressman Ashley), 12801 
(Remarks of Senator Morse), 13312 (Remarks of Senator Know- 
land), 13316-17 (Remarks of Senator Morse), 13334 (Remarks of 
Senator Douglas).

21103 Cong. Rec. 8490 (Remarks of Congressman Celler), 12535 
(Remarks of Senator Javits), 12588 (Remarks of Senator Hum­
phrey), 12848 (Remarks of Senator Case), 12893 (Remarks of 
Senator Javits). See also n. 10, supra.



2 2

Senator Douglas urged:

[0]bvious[ly], southern juries . . . will tend to have 
color bias to begin with. Second, . . .  at the termin­
ation of their service they must go back into the com­
munities from which they came and be exposed to all 
the economic, social and at times physical pressures 
which may be brought to bear. . . . [I] t would be ex­
tremely difficult to obtain any deserved enforcement.
. . . [Judges] tend to have greater respect for the 
law . . . [and] are somewhat insulated from the pas­
sions and prejudices of their community.22

Proponents of a jury trial requirement repeatedly insisted 
that the right to trial by jury should apply to criminal con­
tempts as to all other crimes, as a matter of policy or con­
stitutional law.23 The House rejected a jury trial require­
ment in contempt cases, 103 Cong. Bee. 9219, but the Senate 
adopted an amendment authorizing jury trials, 103 Cong. 
Bee. 13356, and the statute finally enacted provided a lim­
ited right to such trials. 42 U.S.C. § 1995.24

Since the 1957 debates the dispute has continued with 
varying results. In the 1960 Civil Bights Act Congress

22 103 Cong. Rec. 12804.
28 102 Cong. Ree. 13180 (Remarks of Congressman Rivers) ; 103 

Cong. Rec. 2014 (Minority Report), 8414 (Remarks of Congress­
man Colmer), 8501 (Remarks of Congressman Hyde), 8502 (Mr. 
Winstead), 8508 ) Remarks of Congressman Poff), 8545 (Remarks 
of Congressman Abiff), 8552 (Remarks of Congressman Brown), 
8559 (Remarks of Congressman Abernethy), 8649 (Remarks of 
Congressman Smith), 8655 (Remarks of Congressman Tuck), 8657 
(Remarks of Congressman Davis), 8666 (Remarks of Congress­
man Ashmore), 8839 (Remarks of Congressman Smith), 9042 (Re­
marks of Congressman Walter), 12531 (Remarks of Senator 
O’Mahoney), 12571 (Remarks of Senator O’Mahoney), 12651 (Re­
marks of Senator Johnson), 13005 (Remarks of Senator Ervin) 
13326 (Remarks of Senator Church). Congressman Poff also denied 
southern juries would refuse to enforce the law. 103 Cong. Ree. 
8509.

24 Supra, n. 12.



23

gave the courts power to enjoin certain discriminatory con­
duct without providing jury trials for contempt, despite the 
objection that this was part of “ the growing tendency to 
do away with the jury system in the Federal courts.” 25 
The 1964 Civil Rights Act provided a right to jury trials 
in most cases of contempt, 42 U.S.C. § 2000h, but provided 
for non-jury trial civil actions arising in employment dis­
crimination cases. 42 U.S.C. § 2000e-5; see n. 5, supra. 
As in 1957, the contempt jury trial provision was rejected 
by the House but imposed by the Senate,26 and the debate 
closely resembled that of 1957.27 That no jury trial would 
be available in civil actions for injunction and back pay 
was reiterated in the Senate debates by one of the bills’ 
floor managers, in response to repeated questions by Sen­
ator Ervin; neither Senator Ervin nor any other proponent 
of jury trials in contempt cases asked for such trials in 
civil enforcement proceedings.28 In the 1965 Voting Rights 
Act Congress gave the limited right to jury trial in con­
tempt cases provided by the 1957 Act, 42 U.S.C. § 19731,

26 1 06 Cong. Rec. 6375 (Remarks of Congressman Brooks) ; Sen­
ator Clark urged, “ Certainly one cannot be confident that a jury 
drawn from the citizens in the southern district of Mississippi 
would be eager to make such a finding in favor of Negro fellow 
citizens who have been denied the right to vote! . ”  106 Cong 
Rec. 7241.

26110 Cong. Rec. 2804 (House Vote), 13051 (Senate Vote).
27 For arguments that jury trials would emasculate the law, see 

110 Cong. Rec. 1993 (Remarks of Congressman Taft), 2266 (Re­
marks of Congressman Gilbert), 8660 (Remarks of Senator Morse), 
9818 (Remarks of Senator Javits), 12958 (Remarks of Senator 
Humphrey). Advocates of jury trials once again pointed to the 
Constitution, 110 Cong. Rec. 8700 (Remarks of Senator Fulbright), 
9565 (Remarks of Senator Johnston), 9681 (Remarks of Senator 
Long). See generally 110 Cong. Rec. 9572-3, 10164-5, 2272 8649- 
57, 8700-8703, 10077-80, 10563-4, 12926, 11204-5, 10340-1, 9685-6 
10203-09, 9817-19, 9917-19, 10111, 11012, 10199-203, 12953-4 
13050-1.

28110 Cong. Rec. 7693. Senator Ervin did make such a proposal 
eight years later. See n. 30, infra.



24

the House having rejected, after brief debate, an amend­
ment that would have required jury trials in all contempt 
cases. I l l  Cong. Rec. 16263. The proponents of open hous­
ing legislation first proposed and then deleted the limited 
jury trial right in contempt cases in the 1957 statute, and 
the Congress which enacted Title VIII also established new 
rules to prevent racial discrimination in the selection of 
federal juries.29

In sum, Congress, out of a repeatedly expressed concern 
that juries would refuse to enforce civil rights legislation, 
has provided only a limited right to jury trial in criminal 
contempt cases arising under such enactments, and has con­
sistently refused to sanction jury trials in civil enforce­
ment proceedings.30 A similar concern has been expressed 
by a number of lower courts in enforcing civil rights leg­
islation.31

29 See supra, p. 12.
20 In 1972 Senator Ervin proposed to require jury trials in Title 

VII civil actions, conceding the Seventh Amendment did not apply 
to such equitable proceedings but urging that its salutary policies 
should be enforced in all such cases. Senator Javits objected, “ If 
it is valid for this, why is it not valid for all proceedings under 
the 14th amendment, which would include education, housing, and 
everything else in the Civil Rights Act of 1964?” The proposal 
was rejected. 118 Cong. Rec. 2277-2278 (Feb. 22, 1972) (Daily 
Ed.).

31 The District Court at oral argument on the jury trial motion 
in this case:

“ [T]his issue has been debated as long as I can remember in 
Congress and all the civil rights legislation passed since 1948, 
I believe. And I think the general consensus is that if you 
have jury trials, civil rights legislation, you don’t really re­
sult in very effective legislation, so Congress—pro civil rights 
people shred away from it.” Hearing of April 30, 1970, p. 13. 

In Lawton v. Nightingale, 345 P.Supp. 683, 684 (N.D. Ohio, 1972), 
the district court held there was no right to a jury trial for dam­
ages under 42 U.S.C. § 1983:

“ [A] contrary holding would, in many instances, totally defeat 
the purposes of § 1983. If a jury could be resorted to in



25

The constitutional policies which, such legislation en­
forces, in this case those of the Thirteenth and Fourteenth 
Amendments, are no less important than those of the Sev­
enth. Plaintiff does not maintain that the protections of the 
Bill of Bights should not extend to defendants in civil rights 
cases; on the contrary, plaintiff recognizes that those pro­
tections, including the right to jury trial, are a bulwark 
against government oppression, and should not be withheld 
even in the name of liberty itself. Compare United States 
v. Barnett, 376 U.S. 681 (1964). A seriously delibitating 
limitation on Title V III may be imposed if unequivocally 
required by the Seventh Amendment, but should not be 
merely because of “ serious doubts.” The Court should ac­
cord section 812 its natural interpretation as prohibiting 
jury trials, and resolve explicitly the Seventh Amendment 
questions posed by that construction.32

actions brought under this statute, the very evil the statute 
is designed to prevent would often be attained. The person 
seeking to vindicate an unpopular right could never succeed 
before a jury drawn from a populace mainly opposed to his 
views. This is particularly the problem in the present case, 
where the plaintiff is so unpopular, scorned and condemned 
that this Court’s granting of preliminary injunctive relief 
provoked rioting among his protesting fellow students, and 
editorial denunciation from the local information media.”

See also Note, Jones v. Mayer: The Thirteenth Amendment and 
the Federal Anti-Discrimination Laws, 69 Colum. L. Eev. 1019, 
1051; Comment, The Right, to Jury Trial Under Title VII of the 
Civil Rights Act of 1964, 37 U.Chi.L.Rev. 167, Developments in the 
Law, Employment Discrimination and Title VII of the Civil 
Rights Act of 1964, 84 Harv. L. Rev. 1109, 1264; Note, The Right 
to Nonjury Trial, 74 Harv. L. Rev. 1176 (1961).

32 During the 1957 voting rights debates Senator Bricker com­
mented :

“ [The] power [of Congress] in that field is plenary, so long 
as it is confined to the enforcement of the Fifteenth Amend­
ment. That power should not be crippled by jurors drawn 
from the very community in which voting by some of our 
citizens is prevented or discouraged by a majority of the resi­



2 6

At stake in the instant case is not only the enforcement 
of vital legislative and constitutional policies, but also the 
right of an individual litigant to a fair trial. Aside from 
the constitutional basis of the instant statute, plaintiff is 
entitled to have her claims heard by a fair trier of fact, 
not a jury hostile to her from the outset because of its per­
sonal prejudices against blacks or against open housing. 
This Court has long recognized the right of a litigant under 
the Due Process clause of the Fifth Amendment to a ver­
dict untainted by racial prejudice or discrimination. Moore 
v. Dempsey, 261 U.S. 86, (1923); Shepherd v. Florida, 341 
U.S. 50, 55 (1951).

Plaintiff does not of course maintain that a constitutional 
fair jury trial would be impossible to obtain in a case such 
as this. Extensive voir dire, for example, could substan­
tially increase the likelihood of an impartial panel. See, 
e.g., Connecticut v. Seale (No. 15844, Dist. Ct. New H aven); 
Garry, “Attacking Racism in Court Before Trial,” Ginger, 
Minimizing Racism in Jury Trials (1969). But the sub­
stantial danger that litigants in civil rights cases will not 
get a fair hearing if subject to the whims of a racially 
biased jury requires that jury trials in such cases only be 
provided if the Seventh Amendment will permit no other 
result.

dents. . . .  We cannot hope to reconcile these competing values 
—effective enforcement of the right to vote and the right to 
trial by jury—by a literal reading of the Constitution. . . . 
I have confidence that the Federal Judiciary will work out 
the problem without doing violence to any fundamental prin­
ciples which we have always considered to pertain to the 
inalienable rights of the people of the United States.” 103 
Cong. Rec. 13003-05.



27

II.

The Seventh Amendment Does Not Require Jury 
Trials in Actions Arising Under Title VIII.

Section 812(c) requires that Title V III cases be tried by 
the court without a jury, and any federal statute carries 
with it a presumption of constitutionality. United States 
v. Di Be, 332 U.S. 581, 585 (1948.) Under the decisions of 
this Court no jury trial is required in a civil action if either 
the right being reinforced is one unknown at common law, 
or the remedy involved is one which equity could have 
afforded. Both of those circumstances are jjresent in cases 
arising under Title VIII.

a. The Rights Protected by Title VIII Were Unknown At 
Common Law

The Seventh Amendment preserves the substance of the 
right to a jury trial which existed at common law when 
the Amendment was adopted in 1791. The amendment is, 
by its own terms, merely preservative, in marked contrast 
to the other guarantees of the Bill of Rights which are 
expansive in nature and adapt to include within their cov­
erage problems which could not have been foreseen when 
they were enacted. Compare Trop v. Dulles, 356 U.S. 86, 
100-101 (1958). The constitutional right to jury trials is 
preserved in, but limited to, suits which the common law 
recognized among its old and settled precedents and suits 
involving such legal rights and remedies in modern guise. 
Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447 (1830).

When Congress creates new rights which did not exist 
at common law and are not analogous to rights that were 
recognized at common law, however, it is free to grant or 
deny the right to jury trial as long as the procedure it



28

established satisfies due process. Prior to the National 
Labor Relations Act33 an employer was free to refuse to 
hire union members and to fire employees who joined a 
union. Any prohibition against interference by employers 
with self-organization of employees was not only unknown, 
but obnoxious to the common law.34 The Act reversed this 
rule and guaranteed to employees the right to organize 
without coercion or interference by their employer. The 
Act authorized an award of wages and back pay for vio­
lations of the law without recourse to a jury, and this Court 
sustained that procedure:

“It is argued that [assessment of such awards] is equiv­
alent to a money judgment and hence contravenes the 
Seventh Amendment with respect to trial by jury . . . 
The Amendment thus preserves the right which existed 
under the common law when the Amendment was 
adopted . . .  It does not apply where the proceeding is 
not in the nature of a suit at common law . . .

The instant case is not a suit at common law or in 
the nature of such a suit. The proceeding is one un­
known to the common law. It is a statutory proceed­
ing. Reinstatement of the employee and payment for 
time lost are requirements imposed for violation of the 
statute and are remedies appropriate to its enforce­
ment.”

N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48-49 
(1937).

This Court has held that, because the right involved did 
not exist at common law, the Seventh Amendment does not

33 29 U.S.C. §§151 et seq.
34 Aquilines Inc. v. N.L.B.B., 87 P.2d 146, 150 (5th Cir. 1936).



29

guarantee a jury trial in actions for damages against the 
United States, McElrath v. United States, 102 U.S. 426, 440 
(1880), suits to recover improperly collected taxes, Wick- 
wire v. Reinecke, 275 U.S. 101, 105-106 (1929), or adminis­
trative proceedings to cancel a naturalization certificate, 
Luria v. United States, 231 U.S. 9, 11 (1913), assess pen­
alties for unlawful transportation of aliens, Oceanic Steam 
Navigation Co. v. Stranahon, 214 U.S. 320, 329 (1909), or 
appraising the value of dutiable goods, Passavant v. United 
States, 148 U.S. 214, 221 (1893). The ability of a court to 
award damages without a jury because the right sued upon 
was unknown at common law was upheld in actions for 
violation of the Railway Labor Act, Brady v. T.W.A., Inc., 
196 F. Supp. 504 (D. Del. 1961), to compel arbitration as 
to back pay, Northwest Airlines, Inc. v. Airline Pilots 
Assn., Inti., 373 F.2d 136, 142 (8th Cir. 1967), cert, denied 
389 U.S. 827 (1967), for wages unlawfully withheld in vio­
lation of the Fair Labor Standards Act, Wirts v. Wheaton 
Glass Co., 253 F. Supp. 93, 95 (D. N.J. 1966), for refund 
of rent overcharges pursuant to the Emergency Price Con­
trol Act, Creedon v. Arielly, 8 F.R.D. 265, 268 (W.D. N.Y. 
1948), and to collect back pay under Title Y II of the 1964 
Civil Rights Act.35

The right of a black person to sue for redress because 
of a racially motivated refusal to sell or lease real property 
was certainly unknown at common law. At common law, 
a citizen was free to contract or not contract for the sale 
or disposition of his land, goods, and services, and this 
liberty was held to be protected against unreasonable gov- 86

86 Culpepper v. Reynolds Metals Co., 296 F.Supp. 1232, 1241 
(N.D. Ga. 1968), rev’d on other grounds, 421 F.2d 888 (5th Cir. 
1970).



30

ernment infringement by the Due Process Clause of the 
Fourteenth Amendment.36

The common law freedom of contract and alienation were 
uniformly held to entitle a landowner to refuse to sell his 
property because of the race of the would-be buyer.37 Nor 
was there any redress at law if a property owner refused 
to lease on account of race.38

36 Allgeyer v. Louisiana, 165 U.S. 578, 587 (1897); Booth v. 
Illinois, 184 U.S. 425, 428 (1902); Bean v. Patterson, 122 U.S. 
496, 499 (1887). Chief Justice Marshall referred to “ that absolute 
power which a man possesses of his own property, by which he 
can make any disposition of it which does not interfere with the 
existing rights of others.” Sexton v. Wheaton, 21 U.S. (8 Wheat.) 
229, 242 (1824). The right of free alienation or disposition in any 
lawful manner was held to be one of the chief elements of prop­
erty, as that term was understood at common law. Jones v. Clifton, 
101 U.S. 225, 228-229 (1880); Osage Oil & Refining Co. v. Chand­
ler, 287 F. 848 (2d Cir. 1923).

37 A  refusal to sell on the grounds of race gave the would-be 
buyer no legal remedy whatsoever. People ex rel. Gaskill v. Forest 
Home Cemetery Co., 258 111. 36, 101 N.B. 219 (1913) ; Koehler V. 
Rowland, 275 Mo. 573, 205 S.W. 217 (1918). “ [I ]f  it was dis­
tasteful to plaintiff to have a colored man as his adjoining neigh­
bor, he had the legal right to refuse to sell him or his agents the 
property in controversy. In other words, no man is boiind to sell 
his property to a proposed purchaser, whose presence is unsatis­
factory to him as a neighbor, whether he be white, black, or of some 
other color.” Keltner v. Karris, 196 S.W. 1, 2 (Mo. 1917).

38 Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 87 N.E.2d 
541 (1949), cert, denied, 339 U.S. 981 (1950) ; Wyatt v. Adair, 215 
Ala. 363, 110 So. 801 (1926). “ The individual citizen, whether he 
be black or white, may refuse to sell or lease his property to any 
particular individual or class of individuals.” Corrigan v. Buckley, 
299 F. 899, 901 (D.C.Cir. 1924), app. dism., 271 U.S. 323 (1926). 
“ [Wjhen the defendant refused to lease apartments to the plain­
tiff [who was Jewish] it exercised only the right which every land­
lord undoubtedly has to make his own selection of tenants!” Als- 
lerg v. Lucerne Hotel Co., 46 Mise. 617, 618, 92 N.Y.S. 851, 852 
(1905). “Non-Caucasians are and always have been just as free 
to restrict the use and occupancy of their property to members 
of their own races as Caucasians have been. The fact that the 
members of the Caucasian race have freely availed themselves of 
this right throughout the nation, even though those of the non-



31

The force of the law was available to assist a white land- 
owner who wished to prevent the purchase or lease of land 
by blacks. “At the time the United States Constitution con­
taining the first ten amendments was adopted, slavery was 
a legal and economic fact of life. . . .  It is tautological that 
actions alleging racial discrimination could have not then 
been maintained for race discrimination had as its support 
the full weight and authority of law.” Marr v. Rife, Civ. 
No. 70-218 (S.D. Ohio, opinion dated August 31, 1972.) In 
certain states of the ante-bellum South, free blacks were 
legally incapable of taking or acquiring any leasehold or 
freehold interest in real property. Heim  v. Bridault, 37 
Miss. 209 (1859); Beall v. Drane, 25 Ga. 430 (1857). See 
also Swoll v. Oliver, 61 Ga. 248 (1878). Ratification of the 
Thirteenth and Fourteenth Amendments ended state re­
strictions on the power of blacks to lease or own property, 
but before Shelley v. Kraemer, 334 U.S. 1 (1948), the use 
of racially restrictive covenants in deeds and conveyances 
frequently prevented black citizens from buying property. 
Such covenants were recognized and enforced in many 
states. See e.g. United Cooperative Realty Co. v. Hawkins, 
269 Ky. 563, 108 S.W.2d 507 (1937); Los Angeles Invest­
ment Co. v. Gary, 181 Cal. 680, 186 P. 596 (1919); Queens- 
borough Land Co. v. Cazeaux, 136 La. 724, 67 So. 641 
(1915); Parmalee v. Morris, 218 Mich. 625, 188 N.W. 330 
(1922); Chandler v. Zeigler, 88 Col. 1, 291 P. 822 (1930); 
White v. White, 108 W. Va. 128, 150 S.E. 531 (1929); 
Cornish v. O’Donoghue, 30 F.2d 983 (D.C. Cir. 1929). This

Caucasian races have not, is the most satisfactory proof of the pub­
lic policy of the nation with respect to this phase of the right to 
contract. . . . The right to contract with reference to their own 
property is one that is preserved to all citizens and, except where 
restricted by law, is a right which the peoples of all races may 
exercise freely.” BurJchardt v. Lofton, 63 Cal. App.2d 230, 238, 
146 P.2d 720, 724-725 (1944).



32

Court held that the states could so assist white landown­
ers desirous of discriminating against blacks, Corrigan v. 
Buckley, 271 U.S. 323, and ruled that Congress was not 
authorized by the Thirteenth and Fourteenth Amendments 
to prohibit such “ [i] ndividual invasion of individual 
rights.” Civil Rights Cases, 109 U.S. 3, 11 (1883).

Against this background, congressional opponents of 
Title VIII asserted repeatedly that the proposed open 
housing law would violate long established principles of 
private property. Senator Byrd argued:

I am expressing the hope that Senators will want 
to retain that age-old property right which has come 
down to us from the earliest days of the common law: 
the right to manage, to use, to dispose of one’s prop­
erty whether or not the individual lives in the dwelling, 
according to the dictates of his own conscience and his 
own good judgment. . . .

I  cannot understand how any one would urge that 
a would-be purchaser should have any legal claim, any 
constitutional claim, any moral claim, or any natural 
claim on that which he does not possess.

I hope that the Senate does not intend to give a 
prospective buyer that to which he has never had any 
claim since the earliest days of common law.

114 Cong. Bee. 4973 (1968) (Emphasis added). See also 
114 Cong. Bee. 2718 (Bemarks of Sen. Thurmond), 3135 
(Bemarks of Sen. Ellender), 3241 (Bemarks of Sen. Hol­
land), 3249 (Bemarks of Sen. Ervin), 3476-77 (Bemarks of 
Sen. Thurmond), 4063 (Bemarks of Sen. Ervin), 4976-77 
(Bemarks of Sen. Byrd), 4976 (Bemarks of Sen. Allott), 
4977 (Bemarks of Sen. Hansen) (1968).



33

A witness on behalf of the National Association of Real 
Estate Boards testified that his organization believed the 
bill was “ repugnant to the principle of private property 
ownership—a principle whose roots are firmly embedded 
in the common law.” 89 Section 1 of the Civil Rights Act 
of 1866, 42 TJ.S.C. 1982, was also enacted despite a back­
ground of legal concern for the prerogatives of property 
ownership philosophically at odds with the purposes of 
that statute. Jones v. Mayer Co., 392 U.S. 409, 449 n. 6 
(opinion of Justice Douglas), 473-75 (dissenting opinion 
of Justice Harlan) (1968). A  statute such as Title V III 
which so revolutionized common law relationships ipso facto 
created rights which were unknown at common law and 
which can be enforced without trial by jury.

Despite this radical change in the common law worked 
by Title VIII, the Court of Appeals held that the rights it 
created were analgous to the action at law which was avail­
able against an innkeeper who refused, without justifica­
tion, to provide lodgings to a traveler, and held that a 
jury was therefore available to try the action. (Pp. 62a- 
63a)

Under the common law of England, an innkeeper was 
bound to receive and lodge in his inn all travelers and to 
entertain them at reasonable prices without any special or 
previous contract, unless he had some reasonable grounds 
for refusal. Rex v. Luellin, [1700] 12 Mod.L.Rep. 445, 88 
Eng. Rep. 141 (K.B.).39 40 Because of the scarcity of inns,

39 Hearing Before a Subcommittee of the Senate Banking and 
Currency Committee, 90th Cong. 1st Sess. 338 (1967).

40 See also Thompson v. Lacy [1820], 3 B. & Aid. 283, 106 Eng. 
Rep. (K.B.) ; Bolins v. Grey [1895], 2 Q.B. 501; 18 Halsbury, 
Laws of England 141 (2d ed. 1935); Rex v. Ivens, [1835], 7 C. &
P. 213, 173 Eng. Rep. 94 (N.P.) ; Regina v. Bymer [1877], 2
Q. B.D. 136; Fell v. Knight [1841], 8 M. & W. 269 (Q.B.).



34

the vital importance of the services which they provided 
travelers, and the unavailability of advance bookings, a 
legally enforceable duty to serve the public was created 
by the act of holding one’s self out as an innkeeper. Bex 
v. Ivens [1835] 7 C. & P. 213, 219, 173 Eng. Eep. 94, 96 
N.P.). The duty of an innkeeper was thus a radical 
departure from the usual common law rule that a trades­
man was free to choose his customers, and was strictly 
limited.

The innkeeper’s duty did not extend to persons who 
leased lodgings for any extended period of time. Since the 
keepers of boarding houses, lodging houses, rooming houses 
and apartment houses did not hold themselves out to 
the public as providing transient accommodations for 
travellers, the innkeeper’s duty did not apply to them, and 
they could refuse to serve whomever they pleased. Thomp­
son v. Lacy, [1820] 3 B. & Aid. 283, 106 Eng. Eep. 667 
(K .B.).41 One sued for violation of his duty as an inn- * 33

41 See also Sealey v. Tandy [1902], 1 K.B. 296; Dansey v. Rich­
ardson [1854], 3 B.&.B. 144, 159 (Q .B .); Hundley v. Milner Hotel 
Management Co., 114 P. Supp. 206, 208 (W.D. Ky. 1953), aff’d 
mem., 216 F.2d 613 (6th Cir. 1954) ; Fay v. Pacific Improvements 
Co., 93 Cal. 253, 255, 26 P. 1099,1100 (1891); City of Independence 
v. Richardson, 117 Kan. 656, 661, 232 P. 1044, 1046 (1925) ; Good­
year Tire & Rubber Co. v. Altamont Springs Hotel, 206 Ky. 494, 
497, 267 S.W. 555, 556 (1925).

If a traveller remained at an inn and contracted with his host 
for a term of permanent residence, their relations changed to that 
of tenant-landlord, and the host was no longer under a duty to 
accept the lodger. Alpaugh v. Wolverton, 184 Ya. 943, 948, 36 
S.E. 906, 908 (1946); Shorter v. Shelton, 183 Ya. 819, 822-823,
33 S.E.2d 643, 644-645 (1945).

“ The obligation to receive and entertain guests is . . . confined 
to innkeepers, that is to say, persons who keep inns properly so 
called, no such obligation resting upon the keeper of a mere 
lodging-house or a mere boarding house. . . . ”  18 Halsbury, 
Laws of England 143 (2d ed. 1935).



35

keeper to provide accommodations could defend on the 
ground that he was a landlord who leased property for a 
term. Parker v. Flint, 12 Mod. Rep. 254, 256 (1699) (Holt 
J .),42 43 The special duty of an innkeeper also did not arise 
if the would-be guest was not a traveler, but a local resi­
dent able to return to his own home. 18 Halsbury, Laws of 
England 144 (2d ed. 1935).48

In many states, race was recognized as a valid reason 
for refusing accomodation at an inn to a would-be guest. 
State v. Steele, 106 N.C. 766, 11 S.E. 478 (1890); State v. 
Hicks, 174 N.C. 802, 93 S.E. 964 (1917); Fraser v. McOib- 
bon, 10 Ont. W.R. 54 (1907); Note, Hotel Law in Virginia, 
38 Va. L. Rev. 815 (1952); Hartman, “Racial and Religious 
Discrimination by Innkeepers in the H.S.A.” 12 Mod. L. Rev. 
449 (1950); Note, An Innkeeper’s ‘Right’ to Discriminate, 
15 U. Fla. L. Rev. 109 (1962); Story on Bailments 486 
(4th. ed. 1866). Discrimination on the ground of race was 
likened to the economic discrimination against those travel­
lers who were unable to pay high hotel prices. Cf. DeWolf 
v. Ford, 193 N.Y. 397, 401, 86 N.E. 527, 529 (1908). Al­
though the question of whether a common law innkeeper 
could discriminate on the ground of race was not unequiv­
ocally resolved judicially,44 this right of discrimination was

42 “The yerdict finds he let lodgings only, which shows him not 
compellable to entertain anybody and that none could come there 
without a previous contract; that he was not bound to sell at 
reasonable rates, or to protect his guests.”

43 See also Calye’s Case, 8 Co. 322, 77 Eng. Rep. 520, 77 Eng. 
Rep. 520 (K.B. 1584); Bex v. Luellin, 12 Mod. L. Rep. 445, 88 
Eng. Rep. 1441 (K.B. 1700) ; Horner v. Harvey, 3 N.Mex. 307, 
5 P. 329 (1885); Kisten v. Hildebrand, 48 Ky. 72 (1848); Brown 
Shoe Co. v. Hunt, 103 Iowa 586, 72 N.W. 765 (1897); Roberts V. 
Case Hotel Co., 106 Misc. 481, 175 N.Y.S. 123 (Sup. Ct. App. Term 
1919).

44 Cf. Constantine v. Imperial Hotels Ltd., 1 K.B. 693 (1944) ; 
Civil Bights Cases, 109 U.S. 3, 41 (1883) (Harlan J. diss.); 
Christie v. York Corp., 1 D.L.R. 81 (1940), Rogers v. Clarence 
Hotel, 2 W.W.R. 545 (1940), Franklin v. Evans, 55 O.L.R. 349 
(1924), State v. Steele, 106 N.C. 766, 11 S.E. 478, 484 (1890).



36

codified in a number of State statutes. See e.g. Fla. Stat. 
Ann. §509.092 (1961); Ark. Stat. Ann. 671-1801 (Suppl. 
1961); Del. Code Ann., tit. 24, § 1501 (1953); Miss. Code 
Ann. §2046.5 (1959); Tenn. Code Ann. § 62-710 (1955). 
The innkeeper rule relied on by the Court of Appeals is 
manifestly inapplicable to a black plaintiff seeking an 
apartment in the same city in which she already resided.

b. The Relief Available in a Title VIII Case Is Part of a 
Single Integrated Equitable Remedy

Congress, greatly concerned to erect an effective scheme 
of enforcement, gave to the district courts in Title V III 
actions “ a complete arsenal of federal authority.” Jones 
v. Mayer Co., 392 U.S. 409, 417 (1968). The courts were 
authorized to appoint counsel for indigent plaintiffs, to 
expedite all related proceedings, to suspend proceedings if 
administrative conciliation was progressing well, and to 
award preliminary injunctions, final injunctions, actual 
damages, punitive damages, costs, and attorneys’ fees.45 
The courts also retain and untilize, as in the instant case, 
their inherent power to try to effectuate a settlement be­
tween the parties.46

These remedies are, in general, not mandatory; injunc­
tive relief and the appointment of counsel are expressly 
confided to the court’s discretion, and section 812(c) 
provides that the court “may” award punitive damages, 
actual damages, fees and costs. The court is charged with 
the responsibility of fashioning from this arsenal such re­
lief in each case as will promote equal access to housing, 
“ a policy that Congress considered to be of the highest 
priority.” Trafficante v. Metropolitan Life Insurance Co., 
409 U.S. 205, 311 (1972). The plaintiff in such cases sues,

45 42 U.S.C. §§ 3612, 3614.

46 See p. 47a.



37

not merely to vindicate a personal interest, but as a private 
attorney general seeking to carry out that public policy. 
Id. at 211.

The remedial scheme thus created is inherently equitable 
in nature. The remedy in each case is fashioned so as to 
promote an end to housing discrimination, not to penalize 
the wayward or collect any private debt. There is no ab­
solute right to actual or punitive damages such as existed 
at common law, for these matters are entrusted to the dis­
cretion of the court.47 “The distinguishing characteristics 
of legal remedies are their uniformity, their unchangeable­
ness or fixedness, their lack of adaption to circumstances, 
and the technical rules which govern their use.” 1 Pomeroy, 
Equity Jurisprudence § 109 (5th ed. 1941). Equitable rem­
edies, on the other hand, were distinguished by their flexi­
bility and variety. Alexander v. Hillman, 296 U.S. 222, 239 
(1935). Frequently a district court’s decision as to whether 
or not to allow actual or punitive damages will depend 
upon its earlier or simultaneous decisions as to whether 
to award injunctive relief or costs or fees.48 Such discre­

47 A similar discretion exists under Title VII, where back pay 
may be denied if there are special circumstances rendering such an 
award unjust. Compare Newman v. Piggie Park, 390 U.S. 400 
(1968). Such a case would exist where the defendant’s discrimina­
tion had been in good faith compliance with an apparently valid 
state law. See e.g. Le Blanc v. Southern Bell Telephone & Tele­
graph Co., 333 F. Supp. 602, 610 (E.D. La. 1971), aff’d 460 F.2d 
1228.

48 In the instant case, for example, the District Court considered 
among the reasons leading to its decision regarding remedy the fact 
that the defendants had already suffered a significant financial loss 
as a result of the preliminary injunction forbidding them from 
renting the apartment to anyone but plaintiff. P. 51a. See also 
Bridges v. Mendota Apartments, No. 898-H BOH j[ 17,505 (D.C. 
Commission on Human Rights, opinion dated November 10, 1972) 
( “equity demands” assessment of damages where respondent re­
fused to rent apartment and plaintiff had to take another one.) 
In its findings and conclusions of October 27, 1970, awarding puni-



38

tionary damages bear little resemblance to damages as they 
were known at common law, but are quite similar to tbe 
damages sometimes given as part of equitable clean up. 
Ordinarily tbe remedy fashioned in a Title V III case will 
include specific performance of the contract which would 
have been entered into but for the plaintiff’s race, an in­
herently equitable remedy. Stewart v. Griffith, 217 U.S. 323, 
328 (1910); Willard v. Taylor, 75 U.S. (8 Wall.) 557, 566- 
68 (1870); Rutland Marble Co. v. Ripley, 77 U.S. (10 Wall.) 
339, 357-58 (1870).

Congress intended that the forms of relief authorized by 
Title V III be employed as part of a single interrelated 
equitable remedy, and the significance for Seventh Amend­
ment purposes of any relief awarded must be assessed in 
this context. Where the statute contemplates that actual 
or punitive damages will only be awarded at the court’s 
discretion and in light of its decisions as to injunctive 
relief, it would be error to attempt to evaluate the legal 
or equitable nature of such damages in isolation from such 
discretion and decisions. In granting relief under the anal­
ogous provisions of Title VII, the courts have used great 
flexibility in devising remedies to eradicate employment dis­
crimination, and this remedial arsenal has been held to be 
equitable, even when a monetary award is made in a par­
ticular case. “ The demand for back pay is not in the na­
ture of a claim for damages, but rather is an integral part 
of the statutory equitable remedy, to be determined through 
the exercise of the court’s discretion and not by a jury.” 
Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 
1125 (5th Cir. 1968).* 49 This Court has taken a similar

live damages but denying actual damages, costs and fees, the court 
commented, “ It probably takes the wisdom of Solomon to decide 
these cases fairly.” P. 51a.

49 Accord: Culpepper v. Reynolds Metals Co., 296 F. Supp. 1232, 
1241 (N.D. Ga. 1968), rev’d on other grounds 421 F.2d 888 (5th



39

approach to cases arising under the Fair Labor Stan­
dards Act and the Emergency Price Control Act of 1942. 
See Yakus v. United States, 321 U.S. 414 (1944); Porter 
v. Warner Holding Co., 328 U.S. 395 (1946). Considered 
as part of a single integrated equitable remedy, the relief 
in any particular case is ipso facto equitable and does not 
give rise to a right of trial by jury.

c. A Court o f Equity Could Constitutionally Award Legal 
Relief in This Case

Even if the various remedial devices authorized by Title 
VIII are considered separately, this case is still one prop­
erly heard in equity.

The injunctive relief authorized by Title VIII is, histori­
cally, purely a matter of equitable cognizance. Stockton v. 
Russell, 54 F. 224, 228 (5th Cir. 1892); United States v. 
Debs, 64 F. 724, 741 (N.D. 111. 1894); Fleming v. Peavy 
Wilson Lumber Go., 38 F.Supp. 1001, 1002 (W.D. La. 1941). 
While damages are the preeminent remedy which was avail­
able at law, the fact that damages are available in an ac­
tion does not make it ipso facto a suit at common law. * 49

Cir. 1970) ; Mayes v. Seaboard Coast Line Railroad Co., 46 F.R.D.
49, 52-53 (S.D. Ga. 1968) ; Cheatwood v. South Central Bell Tel. 
<& Telegraph Co., 303 F. Supp. 754, 756 (M.D. Ala. 1969) ;  Smith- 
Mampton Traininq School For Nurses, 360 F.2d 577, 581 n. 8 (4th 
Cir. 1966).

Cf. Harkless v. Sweeny Independent School List., 427 F.2d 319, 
324 (5th Cir. 1970), cert, denied, 400 U.S. 991 (1971) (no right to 
jury trial in suit brought by discharged black school teachers seek­
ing reinstatement and back pay under 42 U.S.C. § 1983) :

“ Section 1983 was designed to provide a comprehensive remedy 
for the deprivation of federal constitutional and statutory 
rights. The prayer for back pay is not a claim for damages, 
but is an integral part of the equitable remedy of injunctive 
reinstatement. Reinstatement involves a return of the plain­
tiffs to the positions they held before the alleged unconstitu­
tional failure to sever their contracts. An inextricable part 
of the restoration to prior status is the payment of back wages 
properly owing to the plaintiffs. . . . ”

427 F.2d at 324.



40

At least prior to the promulgation in 1938 of the Fed­
eral Rules of Civil Procedure, equity had the power to 
award monetary relief directly if an accounting were 
sought, and it could also assess and award damages along 
with equitable relief to prevent a multiplicity of lawsuits. 
I f  a ground for equitable relief existed, equity would not 
stop with the granting of such relief but would decide all 
aspects of the controversy, including legal issues. Parker 
v. Dee, 2 Ch. Cas. 200, 22 Eng. Rep. 910 (Ch. 1674); Whit­
church v. Golding, 2 P. Wms. 541, 24 Eng. Rep. 852 (Ch. 
1729); Camp v. Boyd, 229 U.S. 530, 551 (1913); Mobile v. 
Kimball, 102 U.S. 691, 706 (1881); Gormely v. Clark, 134 
U.S. 338, 349 (1890); Middletoivn Bank v. Buss, 3 Conn. 
135 (1819); Rathbone v. Warren, 10 N.Y. 587 (1813); 1 
Pomeroy, Equity Jurisprudence §237C (5th ed. 1941); 
James, Civil Procedure 341 (1965). As an incidental part 
of equitable relief, the Chancellor could determine whether 
damages should be awarded and, if appropriate, could de­
cree payment. Clark v. Wooster, 119 U.S. 322, 325 (1886); 
Pease v. Rathbun-Jones Engineering Co., 243 U.S. 273, 279 
(1917); Imperial Shale Brick Co. v. Jewett, 169 N.Y. 143, 
62 N.E. 167 (1901); 1 Story, Equity Jurisprudence § 161 
(14th ed. 1918).

Likewise, the fact that punitive damages were sought 
and recovered here does not render the suit one at com­
mon law. Historically, the inherent authority of a court 
of equity to award punitive damages was never definitively 
settled. Cf. Livingston v. Woodworth, 56 U.S. (15 How.) 
546, 559 (1854); Colburn v. Simms, 2 Hare 543, 553-554 
67 Eng. Rep. 224, 229 (Ch. 1843); Earns v. Allen, 135 Wis. 
48, 115 N.W. 357 (1908); Busby v. Mitchell, 29 S.C. 447, 7 
S.E. 618 (1888), with Bryson v. Bramlett, 204 Term. 347, 
321 S.W.2d 555 (1958); I.H.P. Corp. v. 210 Central Park 
South Corp., 228 N.Y.S.2d 883, 16 A.D.2d 461 (1962), aff’d



41

12 N.Y.2d 329, 239 N.Y.S.2d 547, 189 N.E.2d 812 (1963);
Hines v. Imperial Naval Store Co., 101 Miss. 802, 58 So. 
650 (1911); Union Oil Co. v. Reconstruction Oil Co., 20 
Cal. App.2d 170, 66 P.2d 1215 (1937); International Bank­
ers Life Ins. Co. v. Holloway, 368 S.W. 2d 567 (Tex. 1963). 
Where, however, punitive or exemplary damages were au­
thorized by statute, such remuneration was allowed in 
equity under the theory of equitable clean-up so that a 
multiplicity of lawsuits would be unnecessary for a suitor 
to obtain complete relief. Coca-Cola Co. v. Dixi-Cola 
Laboratories, 155 F.2d 59, 64 (4th Cir.), cert, denied 329 
U.S. 773 (1946); Taylor v. Ford Motor Co., 2 F.2d 473, 474 
(N.D. 111. 1924); Brady v. TWA, Inc., 196 F. Supp. 504, 
505-506 (D. Del. 1961); William WJiitm.an Co. v. Universal 
Oil Products Co., 125 F. Supp. 137, 162 (D. Del. 1954). 
Once the jurisdiction of equity attached, it had power to 
furnish full relief, “ to grant everything that might be re­
covered at law[;] . . . [ i]f  the facts warranted, exemplary 
or punitive damages were properly allowed.” Aladdin 
Mfg. Co. v. Mantle Lamp Co. of America, 116 F.2d 708, 
716 (7th Cir. 1941). In suits for patent infringement, for 
example, the court could award treble damages since there 
was explicit statutory authorization for this, Root v. Rail­
way Co., 105 U.S. 189, 205 (1882); Tilghman v. Proctor, 
125 U.S. 136, 149 (1888); Birdsall v. Coolidge, 93 U.S. 64, 
69-70 (1877); Seymour v. McCormick, 57 U.S. (16 How.) 
480, 488 (1853). Even where such infringement suits were 
tried to a jury, the trial judge rather than the jury was 
given power to assess punitive damages in appropriate 
cases. Day v. Woodworth, 54 U.S. (13 How.) 363, 372 
(1852) ; Kennedy v. Lakso Co., 414 F.2d 1249, 1254 (3d Cir. 
1969); Randolph Laboratories, Inc. v. Specialties Develop­
ment Corp., 213 F.2d 873, 875 (3d Cir.), cert, denied 348 
U.S. 861 (1954), Swofford v. B. & W. Inc., 336 F.2d 406, 412 
(5th Cir.) cert, denied 379 U.S. 962 (1964); See also Keller



42

Products, Inc. v. Rubier Linings Corp., 213 F.2d 382, 387 
(7th Cir. 1954). See Shearer v. Porter, 155 F.2d 77, 83 (8th 
Cir. 1946) (Assessment of punitive damages under Emer­
gency Price Control Act of 1942 is for judge not jury).

Even if a bill’s plea for equitable relief failed, a court 
of equity would retain jurisdiction to grant damages, espe­
cially if the failure of remedy in equity was due to the 
wrongful acts of the defendant. Benton v. Stewart, 1 Cox 
Ch. 258, 29 Eng. Rep. 1156 (Ch. 1786); Gulbenkian v. Gul­
benkian, 147 F.2d 173 (CA2 1945); Gabrielson v. Hogan, 
298 F. 722 (CAS 1924); 1 Pomeroy, Equity Jurisprudence 
§237 (5th ed. 1941).

Plaintiff’s complaint sought relief in the form of an in­
junction requiring that the disputed apartment be leased 
to her and punitive damages.60 The record demonstrates 
that her primary concern was to compel the defendants 
to rent the apartment to her; at the first hearing in this 
case plaintiff informed the court of her need for the apart­
ment and her desire to move in as soon as possible, and her 
counsel stated he would be willing to accept the court’s 
suggestion that the case be settled by renting the apart­
ment to Mrs. Rogers.61 For several months, at the urging 
of the court, plaintiff continued to try to negotiate such a 
settlement.68 Defendant Leroy Loether adamantly refused 
to rent the apartment to her, and finally in April of 1970, 
five months after filing her original complaint, plaintiff— 
whose previous apartment had been unsanitary and at times 
without heat and hot water—was compelled to take an­
other apartment and abandon her request for injunctive 
relief as to the Loether apartment.63 At the hearing on * 51 * 53

60 Complaint, pp. 5a-6a.
51 Hearing of November 17, 1969, pp. 9, 10, 14.
62 Id. at 5, 8, 10,11.
53 Hearing of April 30, 1970, at p. 2.



43

final relief in October of 1970 the District Court awarded 
plaintiff $250 in punitive damages.64

The instant case presents precisely the sort of situation 
for which equitable clean up was intended.65 The gravamen 
of plaintiff’s complaint and action w~ere for injunctive relief. 
Defendants’ obdurate obstinacy eventually forced plaintiff 
to accept alternate housing and abandon her equitable 
claim. Had a court of equity not retained jurisdiction of 
such a case and awarded punitive or actual damages, the 
defendants would have succeeded by their stubborn delay 
in winning a case in which they could not have prevailed 
in open court. The final hearing on damages was substan­
tially shortened by the court’s detailed knowledge of the 
case acquired at the hearing on plaintiff’s motion for a 
preliminary injunction, a saving not possible if the entire 
case had had to be tried before a jury.

It is thus clear that, had this ease arisen prior to the 
merger of law and equity, it would have been maintainable

64 Plaintiff’s complaint did not seek compensatory damages. See 
pp. 5a-6a. The District Court’s pre-trial orders, however, indi­
cated that such damages were at issue in the case, and directed 
plaintiff to notify defendants of the nature of her claim and the 
evidence on which it was founded. Pp. 18a, 22a, 35a, 36a. Plaintiff 
never complied with this order, and at the hearing of October 26- 
27, 1970, the District Court ruled inadmissible any evidence of 
actual damages. Pp. 37a-46a.

At the conclusion of the October hearing the District Court 
stated “I do not believe there have been any compensatory dam­
ages proven in this case or out-of-pocket expenses of that nature.” 
P. 51a. It is unclear whether the Judge so concluded because the 
evidence offered was insufficient, or because he had ruled it in­
admissible. In view of the fact that both punitive and actual 
damages may be awarded as part of equitable clean-up, the rea­
sons for the District Court’s statement are not controlling.

65 The Court of Appeals correctly noted that the back pay 
awarded in Title VII cases is in the nature restitution, an equi­
table remedy, and those cases do not depend upon the application 
of equitable clean up. P. 69a.



44

at equity and without a right to trial by jury. For many 
years before that merger, however, courts of equity had 
declined to exercise their discretionary jurisdiction where 
the effect of doing so would be to unfairly deprive a lit­
igant of his procedural rights in an action at law. In Welby 
v. John, Duke, of Rutland the petitioner brought a hill 
in Chancery to compel the respondent to abandon claims, 
and to discover and preserve the respondent’s evidence of 
title and to adjudicate that title and enjoin respondent 
from claiming any right to the land [1773]. 2 Brown C. 
& P. 39,1 English Reports 778 (K. B.). While a simple bill 
to perpetuate evidence was unobjectionable in equity, courts 
of equity had refused to entertain bills to establish a legal 
title. The court in Welby dismissed the bill on the ground, 
inter alia, that to do otherwise “would he subversive of the 
legal and constitutional distinctions between the different 
jurisdictions of Courts of Law and Equity.” 1 Brown C. 
& P. at 42, 1 English Reports at 780.

The equitable doctrine announced in Welby was given 
added impetus in American courts by the enactment of the 
Seventh Amendment. In Hipp v. Babin, 60 U.S. 19 (1857) 
this Court, relying on Welby, denied equitable jurisdiction 
to an action to recover land, cognizable at law as ejectment, 
to which had been joined several incidental equitable claims 
of dubious merit. The Court ruled that, whenever a plain­
tiff had a remedy at both law and equity, he must proceed 
at law because of the defendant’s constitutional right to 
a jury trial. In the cases which followed, this Court in 
denying equitable jurisdiction relied upon, without distin­
guishing as to import, the policy of Hipp, Section 16 of the 
Judiciary Act of 1789 prohibiting suits at equity “where 
plain, adequate and complete remedy may he had at law,” 
the equitable maxim to the same effect, and the Seventh 
Amendment. Whitehead v. Shattuch, 138 U.S. 146 (1891);



45

Scott v. Neely, 140 U.S. 106 (1891); Cates v. Allen, 149 U.S. 
451 (1893); Hale v. Allinsor, 188 U.S. 56 (1903). The reach 
of this doctrine was restricted by the limits inherent in 
legal remedies; when a case involved a substantial equitable 
claim as well as legal issues, the inability of a court of 
law to provide such equitable relief was an insurmountable 
procedural obstacle to the granting of a jury trial. Ross 
v. Bernhard, 396 U.S. 531, 542 (1970). The equitable clean­
up doctrine retained its vitality in the face of Hipp and 
Scott because it dealt with cases involving a substantial 
equitable issue for which no adequate remedy existed at 
law. So long as law and equity were kept separate, equi­
table cleanup cases were completely consistent with the 
policies being pursued in Hipp and Scott.

In 1938, however, law and equity were merged by the 
Federal Rules of Civil Procedure, precipitating an unavoid­
able conflict between these two lines of cases. Since equi­
table remedies technically became available in any action 
tried before a jury, in virtually every ease an adequate 
remedy existed at law. The statutory requirement that 
such cases be tried at law was repealed,66 but the equitable 
maxim and the policy first announced in Welby and Hipp 
remained. This equitable policy clearly militated in favor 
of taking advantage of the merger of law and equity to 
extend jury trials to all cases raising legal issues, regard­
less of whether they might be incidental to equitable claims. 
The meaning of the Seventh Amendment, however, was not 
changed by the new Rules, and its literal requirements could 
no more be added to than reduced by any act of Congress or 
rules promulgated pursuant thereto. It remained for this 
Court to decide whether the federal courts should exercise 
their traditional discretion to refuse to hear as equitable 
actions cases involving both legal and equitable issues, 56

56 28 U.S.C. § 384 was repealed in 1948.



46

thus requiring those eases to be tried at law with an ensuing 
right to a jury trial on the legal issues.

In Beacon Theatres v. Westover the Court concluded that 
such an exercise of discretion was appropriate. Assuming 
arguendo that, in a traditional sense, the legal issues in 
case were incidental to the equitable issues, the Court held 
that equity’s practice of deciding legal issues once it ob­
tained jurisdiction had to be re-evaluated in the light of 
the liberal joinder provisions and merger of law and equity 
worked by the Federal Rules. 359 U.S. 509 (1959). A l­
though the case in Beacon Theatres might have been heard 
at equity and without a jury trial prior to the Rules, the 
Court held that a jury trial should be provided. In Dairy 
Queen v. Wood, 369 U.S. 469 (1962), two admittedly equita­
ble counts were joined with a claim for an “accounting,” a 
traditional equitable remedy. An accounting was available 
at equity in situations so complicated that only a court of 
equity could unravel them. While Dairy Queen might have 
been such a case a century before, the power of district 
courts to appoint masters to assist juries greatly reduced 
the necessity for this equitable remedy as it had for cleanup. 
Federal Rule of Civil Procedure 53(b). Thus, as in Beacon 
Theatres, the court could exercise its discretion to order 
a jury trial without denying the plaintiff an adequate 
remedy. Boss v. Bernhard combined an equitable doctrine 
of standing, permitting stockholder derivative actions, with 
a legal claim being asserted on behalf of the corporations. 
Prior to 1938 equity had to retain jurisdiction over such a 
case, since a stockholder had no remedy at law. The merger 
of law and equity permitted the Court to provide the equi­
table remedy of a derivative action in a case to be tried as 
one at law and before a jury. 396 U.S. 531 (1970).

Beacon Theatres and its progeny, however, were not con­
stitutional decisions, at least not in the sense involved in



47

Marbury v. Madison, 1 Crancli (U.S.) 137 (1803). The right 
to a trial by jury in those cases derived from the decision 
of Congress to merge law and equity through the Federal 
Rules. That right would cease to exist if Congress once 
again divided law and equity. A  right conferred by the 
Constitution, on the contrary, is “a superior law, unchange­
able by ordinary means” and is not “ alterable when the 
legislature shall please to alter it.” Marbury v. Madison, 
1 Crunch (U.S.) at 177. The decisions at issue since 1938 
repeatedly refer to this non-constitutional basis.57 In 
Beacon Theatres the Court held that a jury trial was re­
quired “under the Declaratory Judgment Act and the Fed­
eral Rules of Civil Procedure,” 359 U.S. at 506, in view 
of the “long-standing principle of equity” that jury trials 
should be afforded whenever possible. 359 U.S. at 510. The 
Declaratory Judgment Act and Federal Rules were said to 
affect “ the scope of equity,” 359 U.S. at 509, not the mean­
ing of the Constitution. In Dairy Queen the Court said that 
cases in which an equitable accounting might be had for 
complicated financial problems would be rare in view of 
the provisions of Rule 53(b) authorizing the appointment 
of a master to assist a jury. 369 U.S. at 478. In Ross v. 
Bernhard the Court stressed that stockholder derivative ac­
tions could be tried to juries because “ [ajfter adoption of 
the rules there is no longer any procedural obstacle to the 
assertion of legal rights before juries.. . . ” 396 U.S. at 542.58 67 68

67 This characterization of these decisions as an equitable doc­
trine is not without exception. Ross in particular contains a sig­
nificant amount of constitutional language. 396 U.S. at 533-35, 
538, 542.

68 Bach of these cases involved the danger that circumstances 
might have been manipulated to defeat the right to jury trial. In 
Beacon Theatres the plaintiff had attempted to sue in equity rather 
than waiting to be sued at law. 359 U.S. at 504. In Dairy Queen 
the plaintiff tried to characterize a contract action as an account­
ing. 369 U.S. at 477-78. In Ross it was the plaintiff stockholders 
who sought a jury trial, which would have been mandatory if re­



48

In view of this non-constitutional basis of Beacon The­
atres and its progeny, it could have been anticipated that 
this line of cases would not he applied where Congress ex­
pressly commanded non-jury trials. Such a statutory provi­
sion would only be invalid if it interfered with the jury 
trial right provided by the Seventh Amendment itself, not 
merely the broader right enforced by equity since 1938. 
That question was presented to this Court in Katchen v. 
Tandy, 382 U.S. 323 (1966), where a claimant maintained 
he had a constitutional right to a jury trial despite the 
contrary provision of the bankruptcy laws.69 Noting that 
the rule in Beacon Theatres and Dairy Queen was “ an

quested by the corporation whose officers, plaintiffs alleged, were 
controlled by the defendant. 396 U.S. at 531. No such manipula­
tion is involved here.

69 Six years before Katchen the Court sanctioned the use of 
equitable clean-up to award damages without a jury in a case 
arising under the Fair Labor Standards Act. Mitchell v. De Mario 
Jewelry, 361 U.S. 288 (1960). In that case section 17 of the Act 
gave to the district courts jurisdiction to “restrain” violations of 
the Act, an authorization of equitable relief contemplating a judge 
sitting without a jury. This Court interpreted the law to author­
ize the same judge to order reimbursement of lost wages. 361 U.S. 
at 289-296. Three members of the Court dissented, urging such 
wages should be recovered only in an action under section 16 of 
the Act, which the dissenters construed as affording a defendant 
a jury trial. 361 U.S. at 303. The dissenters agreed “that an 
equity court, proceeding under unrestricted general equity pow­
ers, may decree all the relief, including incidental legal relief, 
necessary to do complete justice between the parties,” 361 U.S. at 
299, and did not question the constitutionality of a statute author­
izing the granting of such incidental legal relief without a jury 
trial. 361 U.S. at 299.

In Boss v. Bernhard the Court noted that the unavailability of 
equitable relief in a court of law prior to 1938 constituted a 
“procedural obstacle” to the expansion of the right to jury trial 
worked by Beacon Theatres and its progeny. 396 U.S. 531, 542. 
Any such procedural obstacle to the exercise of a constitutional 
right would, except in the most compelling circumstances, be in­
valid. The constitutionality of this obstacle was never questioned 
by this Court, before or after the promulgation of the Federal 
Rules in 1938.



49

equitable doctrine,” 382 U.S. at 339, the Court concluded 
that the delay and expense of a jury trial would be incon­
sistent with the purposes of the Bankruptcy Act. The Court 
stressed that in Katchen, unlike Beacon Theatres and Dairy 
Queen, Congress had expressed its will in “ a specific statu­
tory scheme contemplating the prompt trial of a disputed 
claim without the intervention of a jury.” 382 TT.S. at 339. 
The Court concluded that it should uphold the power of 
the bankruptcy court to summarily adjudicate a claim in 
order to “implement congressional intent.” 382 U.S. at 340.

Katchen is dispositive of the instant case. The drafts­
men of Title VIII were greatly concerned to devise an 
effective method of enforcement, particularly in view of 
the failure of many state laws to accomplish the same goal 
of open housing.60 Speed of enforcement was acknowledged 
to be a key problem, because once a home or apartment 
had been sold or leased to another person the statutory 
purpose would be largely frustrated.61 To assure such 
effective enforcement, Congress provided district judges 
with an unprecedented array of remedial devices, and

60 See, e.g., Hearings Before the Subcommittee on Housing and 
Urban Affairs of the Senate Banking and Currency Committee, 
90th Cong., 1st Sess., 15-16, 20, 26 (remarks of Attorney General 
Clark) ; 33 (remarks of Secretary Weaver) ; 50 (remarks of Sen­
ator Proxmire), 60-72 (memorandum on state laws), 73 (remarks 
of Senator Mondale), 81 (statement on behalf of U.S. Civil Eights 
Commission), 99 (remarks of Roy Wilkins), 165 (remarks of Louis 
Poliak), 175 (remarks of Algernon Black), 217 (remarks of Ed­
ward Rutledge), 361 (remarks of Jacob Rudid) (1967) ; Hearings 
Before a Subcommittee of the House Judiciary Committee, 89th 
Cong. 2d Sess. 1054 (Message From President Johnson) (1967).

61 See, e.g., Hearings Before the Subcommittee on Housing and 
Urban Affairs of the Senate Banking and Currency Committee, 
90th Cong., 1st Sess., 15-16 (Remarks of Attorney General Clark), 
473-4 (letter from Pennsylvania Human Relations Commission) 
(1967); Hearings Before a Subcommittee of the House Judiciary 
Committee, 89th Cong. 2d Sess. 1309-10 (remarks of Attorney 
General Katzenbach) 1306 (remarks of Secretary Weaver) (1967).



50

broad discretion in their employment. See pp. 36-37, supra. 
Congress directed that the case be set for hearing “ at the 
earliest practicable date” and “be in every way expedited.” 
42 U.S.C. §3614. To impose in Title V III cases the delay, 
expense, and possible prejudices of a jury would be to 
dismember this carefully devised Congressional scheme. 
Katchen v. Landy, 382 U.S. at 339. A  strong presumption 
of constitutionality attaches to any Federal statute such 
as Title V III which effectuates important public policies, 
United States v. Di Re, 332 U.S. 581, 585 (1948); no such 
presumption or policies were involved in Beacon Theatres, 
to decline to exercise jurisdiction over cases traditionally 
Dairy Queen or Ross. Courts of equity have no discretion 
within their authority when Congress directs that such 
cases not be tried at law. If a jury were required by the 
Seventh Amendment, of course, it could not be avoided by 
such Congressional intent. But no such result was re­
quired by the Seventh Amendment before 1938, and the 
meaning of the Constitution was not changed by the pro­
mulgation of the Federal Rules of Civil Procedure.

CONCLUSION

Section 812(c) provides that cases arising under Title 
V III shall be tried by a judge without a jury. This re­
quirement is an essential part of the enforcement measures 
devised by Congress to effectuate the national policy of 
open housing pursuant to the Thirteenth and Fourteenth 
Amendments. Since the rights enforced in such cases were 
unknown at common law, and since the remedy involved 
is inherently equitable, section 812(c) is constitutional.

For the foregoing reason, the judgment of the Court of 
Appeals should be reversed.



51

Respectfully submitted,

J ack  Greenberg 
M ichael, D avidson 
S ylvia D rew  
E ric S chnapfer

10 Columbus Circle 
New York, N.Y. 10019

P atricia D . M cMa h o n

Freedom Through Equality, Inc. 
152 West Wisconsin Avenue 
Milwaukee, Wisconsin 53203

S eymour  P ikopsky

Milwaukee Legal Services 
2200 North Third St.
Milwaukee, Wisconsin 53212

Attorneys for Petitioner

Charles L. B lack , J r . 
Of Counsel



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