Talladega County Board of Education v. Elston Petition for Writ of Certiorari

    No. 33

IN THE SUPREME COURT OF THE UNITED STATES
O C T O B E R  T E R M ,  1969

Paul E. Sullivan, et al., petitioners 
v.

Little Hunting P ark, Inc., et al.

T. R. F reeman, Jr., et al., petitioners 
v.

Little Hunting P ark, Inc., et al.

On Writ o f Certiorari to the 
Supreme Court o f Appeals o f  Virginia

PETITIONERS’ SUPPLEMENTAL BRIEF

Jack Greenberg 
James M. Nabrit, III 
10 Columbus Circle 
New York, New York 10019
Of Counsel

Allison W. Brown, Jr.
Suite 501, 1424 16th Street, N.W. 
Washington, D. C. 20036
Peter Ames Eveleth 
217 Fifth Street, S.E.
Washington, D.C. 20003
Robert M. Alexander 
2011 S. Glebe Road 
Arlington, Virginia 22204
Attorneys for Petitioners

Washington. D. C THIEL PRESS 202 393 0625



TABLE OF CITATIONS
Page

Cases:
Automobile Workers v. Russell, 356 U.S. 634 ..............................  2
Greenberg v. Western Turf Ass’n, 140 Cal. 357, 73 P. 1050,

aff’d 148 Cal. 126, 82 P. 684, affd  204 U.S. 359 .................. 3
Jones v. Mayer Co., 392 U.S. 409 ..................................................  2, 3
Linn v. Plant Guard Workers, 383 U.S. 53 ...................................  2
Richmond Passenger & Power Co. v. Robinson, 100 Va. 394,

41 S.E. 7 1 9 ...................................................................................  3
Scott v. Donald, 165 U.S. 58 .......................................................  2

United Construction Workers v. Laburnum Construction Corp.,
347 U.S. 656 ................................................................................  2

Wood v. American National Bank, 100 Va. 306, 40 S.E. 931 . .  . 2

Miscellaneous:

McCormick, Law of Damages (1 9 3 5 ).............................................  3

(i)



IN THE SUPREME COURT OF THE UNITED STATES
O C T O B E R  T E R M ,  1969

No. 33
Paul E. Sullivan, et al., petitioners 

v.
Little Hunting P ark, Inc., et al.

T. R. F reeman, J r., et al., petitioners 
v.

Little Hunting P ark, Inc., et al.

On Writ o f Certiorari to the 
Supreme Court o f Appeals o f  Virginia

PETITIONERS’ SUPPLEMENTAL BRIEF

The United States, in its brief as amicus curiae, suggests 
that the award of punitive damages would not be appro­
priate in this case (br. p. 35, n. 16). Since the issue 
of damages is central to Freeman’s obtaining judicial 
relief—an injunction being of little value to him because of 
his departure from the area—petitioners wish to emphasize 
to the Court their disagreement with the Government’s 
position.

The Government asserts that punitive damages are fore­
closed because the acts complained of predated the inter­



2

pretation of the Civil Rights Act of 1866 announced in 
Jones v. Mayer Co. However, no legal authority is cited 
by the Government for this proposition—and on the basis 
of their own research, petitioners submit that there is none. 
To the contrary, the authorities support an opposite con­
clusion. Thus the Government seems to say that punitive 
damages are not warranted, because at the time defendants 
took action against Freeman and Sullivan, they did not 
know that their conduct violated the Civil Rights Act of 
1866, because Jones had not been decided. However the 
malice, ill will or bad motive underlying an award of puni­
tive damages is a state of mind which is not dependent on 
the actor’s knowledge that his conduct is unlawful. In­
deed, he usually acts in the belief that his conduct is law­
ful. A situation much like the one at bar existed in Scott 
v. Donald, 165 U.S. 58, where an award of punitive dam­
ages was approved by this Court based on the seizure by 
the defendants of contraband liquor under color of a state 
law which the Court held was unconstitutional. There, as 
here, at the time of the acts complained of, the defendants 
did not know that their conduct was unlawful—yet, as was 
later held, it was, and punitive damages were awarded.

There undoubtedly are many other cases of like nature 
which would be revealed by more extended research. 
Reference will only be made at this time to such cases, for 
example, as Automobile Workers v. Russell, 356 U.S. 634; 
United Construction Workers v. Laburnum Construction 
Corp., 347 U.S. 656; and Linn v. Plant Guard Workers, 383 
U.S. 53. In each of these cases, there was good reason to 
believe that the acts in question constituted unfair labor 
practices under the National Labor Relations Act and that 
therefore the National Labor Relations Board would have 
exclusive jurisdiction to redress any injury incurred. The 
Board, however, was unable to provide relief of the kind 
sought in these cases. Accordingly, the defendants would 
not have known at the time of the commission of their 
acts that their conduct was actionable in the state courts. 
This Court not only held that state court jurisdiction ex­



3

isted in these cases, but it approved awards of punitive 
damages in each instance.

From the inception of this proceeding, plaintiffs have 
demonstrated that they are entitled to punitive damages.1 
Their complaints alleged (A. 9-11, 18), and the evidence 
shows, that the defendants’ attitude and conduct in rela­
tion to both the Freeman and Sullivan families during the 
period material herein was characterized by anger, hostility, 
malice, and vindictiveness, elements warranting punitive 
damages.2 Plaintiffs also presented detailed argument, 
based on the evidence, in their brief to the trial court (pp. 
19-21) concerning their right to punitive damages. This 
case, therefore, is not like Jones v. Mayer Co., 392 U.S. at 
415, n. 14, where the Court indicated that on the basis of 
the facts alleged in that complaint, the plaintiffs were not 
entitled to punitive damages. In the case at bar, plaintiffs

'The Sullivan and Freeman complaints each sought damages of 
$15,000. In Virginia, punitive damages are recoverable, even though 
they are not asked for by name in the complaint, if the complaint 
alleges a state of facts which, if proved, entitle the plaintiff to them. 
Wood v. American National Bank, 100 Va. 306, 40 S.E. 931, 932; 
Richmond Passenger & Power Co. v. Robinson, 100 Va. 394,’41 
S.E. 719, 720.

2See generally, McCormick Law o f  Damages (1935). In addition 
to the cases cited in plaintiffs’ main brief (pp. 53-54), see Greenberg 
v. Western Turf Ass’n, 140 Cal. 357, 73 P. 1050, 1051-1052, aff’d 
148 Cal. 126, 82 P. 684, affd  204 U.S. 359.



4

meet both the legal and factual criteria for punitive dam­
ages and the Government’s suggestion to the contrary is 
without merit.

Respectfully submitted,

Allison W. Brown, Jr.
Suite 501
1424 16th Street, N.W. 
Washington, D.C. 20036

Peter Ames Eveleth 
217 Fifth Street, S.E. 
Washington, D.C. 20003

Robert M. Alexander 
2011 S. Glebe Road 
Arlington Virginia 22204
Attorneys for Petitioners

Jack Greenberg 
James M. Nabrit, III 
10 Columbus Circle 
New York, New York 10019

Of Counsel

October 1969



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