Nicolletti v. Cranston Brief for Petitioner

    IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1968

P a u l  E. S u l l iv a n , e t  a l., Petitioners

L ittle  H u n t in g  Pa r k , I n c ., e t  al.

T. R. F r e e m a n , Jr., et al., Petitioners

Little  H u n t in g  P a r k , I n c ., e t  al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

Allison W. Brown, Jr.
Suite 501, 1424-16th Street, N.W. 
Washington, D.C. 20036
Peter Ames Eveleth 
217 Fifth Street, S.E.

v.

v.

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

Of Counsel

Washington, D.C. 20003
R obert M. A lexander 
2011 S. Glebe Road
Arlington, Virginia 22204

A ttorneys for Petitioners

Washington. D. C. • T H IE L  PR ESS  • 202 393-0625



INDEX

PRIOR OPINIONS ............................................................................  2

JURISDICTION................................................................................. 2
QUESTIONS PRESENTED ............................................................. 2
STATUTORY AND CONSTITUTIONAL PROVISIONS ..........  3

STATEMENT......................................................................................  4

A. Introduction ............................................................................ 4
B. Little Hunting Park, Inc. - Its purpose and manner of

operation ................................................................................. 6
C. The corporation’s directors refuse to approve the assign­

ment of Paul E. Sullivan’s share because the assignee,
Dr. T. R. Freeman, Jr., and his family are Negroes ..........  8

D. The corporation’s directors expel Paul E. Sullivan be­
cause of his criticism of their refusal to approve the 
assignment of his share to Dr. T. R. Freeman, Jr. on
the basis of r a c e ......................................................................  9

E. Relief so u g h t............................................................................ 11
REASONS FOR GRANTING THE WRIT .....................................  13

CONCLUSION ...........................................' .................................... 27

CITATIONS

CASES:

Amalgamated Food Employees Union Local 590 v. Logan
Valley Plaza, Inc., 391 U.S. 308 ......................................... 17, 21

Bacigalupo v. Fleming, 199 Va. 827, 102 S.E.2d 321 ..........  25, 26

Baird v. Tyler, 185 Va. 601, 39 S.E.2d 642   15
Barrows v. Jackson, 346 U.S. 249 .................................  16, 17, 20, 23
Bell v. Maryland, 378 U.S. 226 ............................................................ 20, 21
Bernstein v. Alameda-Contra Costa Medical Ass’n, 139 Cal.

App. 2d 241,293 P.2d 862 .......................................................  16
Buchanan v. Warley, 245 U.S. 60 ..................................................  20
Callender v. Florida, 383 U.S. 270 ................................................... 27

(i)



Callender v. Florida, 380 U.S. 5 1 9 ................................................... 27
Clifton v. Puente, 218 S.W.2d 272 (Tex. Civ. A p p .)....................  21

Cook v. Virginia Holsum Bakeries, Inc., 207 Va. 815, 153
S.E.2d 209 ...................................................................................... 26

Crossen v. Duffy, 90 Ohio App. 252, 103 N.E.2d 769 ...............  21
Curtis Publishing Co. v. Butts, 388 U.S. 130 .........................  12, 23
Daniel v. Paul, No. 488, certiorari granted, Dec. 9, 1968 ..........  14
Edwards v. Habib, 397 F.2d 687 (C.A.D.C.) ..............................  16
Evans v. Newton, 382 U.S. 296 ......................................... 17, 18, 19
Fay v. Noia, 372 U.S. 391 ............................................................. 28

Gallagher v. American Legion, 154 Misc. 281, 277 N.Y.S. 81,
aff’d, 242 App. Div. 604, 271 N.Y.S. 1012 ............................  22

Gibbons v. Ogden, 9 Wheat. 1 ........................................................ 28
Grimes v. Crouch, 175 Va. 126, 7 S.E.2d 1 1 5 ......................... 26, 27
Harris v. Sunset Island Property Owners, Inc., 116 So.2d

622 (Fla.) ...................................................................................... 15

Hurwitz v. Directors Guild of America, 364 F.2d 67 (C.A.
2), certiorari denied, 385 U.S. 971 ......................................... 22

Hyde v. Woods, 94 U.S. 523 ............................................................. 15
Hyson v. Dodge, 198 Va. 792, 96 S.E.2d 792 ..............................  25
Jones v. Alfred H. Mayer Co., 392 U.S. 409 ..........  5, 12, 13, 14, 15
Kornegay v. City of Richmond, 185 Va. 1013, 41 S.E.2d

45 ...........................................................................................  25, 26
Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 .........................  28
Lauderbaugh v. Williams, 409 Pa. 351, 186 A.2d 39 ...............  15
Madden v. Atkins, 4 N.Y.2d 283, 151 N.E.2d 7 3 .........................  22
Malibou Lake Mountain Club v. Robertson, 219 Cal. App.

2d 181, 33 Cal. Rptr. 7 4 ............................................................. 16
Marsh v. Alabama, 326 U.S. 501 .............................................  17, 21
Martin v. Hunter’s Lessee, 1 Wheat. 304 ...................................  13, 28
McCulloch v. Maryland, 4 Wheat. 316 ........................................  28
Mitchell v. International Ass’n of Machinists, 196 Cal. App.

2d 796, 16 Cal. Rptr. 813

(ii)

21, 22



Mountain Springs Ass’n v. Wilson, 81 N J. Super. 564, 196
A.2d 270 ......................................................................................  15

Mulkey v. Reitman, 64 Cal. 2d 529, 413 P.2d 825, affd,
387 U.S. 369 .................................................................................  19

N.A.A.C.P. v. Alabama, 377 U.S. 288   5
N.A.A.C.P. v. Alabama, 360 U.S. 240   13
N.A.A.C.P. v. Alabama, 357 U.S. 449   5

Naim v. Naim, 350 U.S. 985 ...................................  27
National Labor Relations Board v. Industrial Union of Marine

and Shipbuilding Workers, 391 U.S. 4 1 8 ...................................  16
Nesmith v. Young Men’s Christian Ass’n of Raleigh, N.C.,

397 F.2d 96 (C.A. 4) .................................................................. 18
New York Times Co. v. Sullivan, 376 U.S. 254 .........................  23
Page v. Edmunds, 187 U.S. 596 ..................................................  15
Parrot v. City of Tallahassee, 381 U.S. 1 2 9 ...................................  5
Pickering v. Board of Education, 391 U.S. 563 ....................  21, 23

Public Utilities Comm’n v. Pollack, 343 U.S. 451 ....................  17
Reitman v. Mulkey, 387 U.S. 369 .............................................  20, 23
Rice v. Sioux City Memorial Cemetery, 349'U.S. 70 ...............  21

Rockefeller Center Luncheon Club, Inc. v. Johnson, 131 F.
Supp. 703 (S.D. N .Y .).................................................................. 18

Shelley v. Kraemer, 334 U.S. 1 ................................................... 15, 20

Shuttlesworth v. City of Birmingham, 376 U.S. 339 ....................  27
Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959

(C.A. 4), certiorari denied, 376 U.S. 938 ..............................  17
Snead v. Commonwealth, 200 Va. 850, 108 S.E.2d 399 ..........  27
Spayd v. Ringing Rock Lodge No. 665, 270 Pa. 67, 113 Atl.

70   16
Spencer v. Flint Memorial Park Ass’n, 4 Mich. App. 157, 144

N.W.2d 622   21
Stanley v. Schwalby, 162 U.S. 255   28
State ex rel. Waring v. Georgia Medical Society, 30 Ga. 608 . . .  16
Staub v. City of Baxley, 355 U.S. 313 ......................................... 5

( iii)



(iv)

Stokely v. Owens, 189 Va. 248, 52 S.E.2d 164 .........................  26

Sullivan v. Little Hunting Park, Inc., 392 U.S. 657 .................. 2, 5
Sullivan v. Little Hunting Park, In c .,___Va. ____, 163 S.E.

2d 588 ...........................................................................................  2
Sullivan v. Little Hunting Park, Inc., 12 Race Rel. L. Rep.

1008 ................................................................................................  2
Taylor v. Wood, 201 Va. 615, 112 S.E.2d 907 ....................  26, 27
Terry v. Adams, 345 U.S. 461 ........................................................ 17
Thompson v. Grand International Brotherhood of Locomo­

tive Engineers, 41 Tex. Civ. App. 176, 91 S.W. 834 ...............  16
Town of Falls Church v. Myers, 187 Va. 110, 46 S.E.2d 31 . . . 26
Tuckerton Beach Club v. Bender, 91 N.J. Super. 167, 219

A.2d 529 ........................................................................................  15
Tyler v. Magwire, 17 Wall. 253 ..................................................  13, 28
United States v. Richberg, 398 F.2d 523 (C.A. 5) ....................  18
Ward v. Board of County Comm’rs, 253 U.S. 1 7 .........................  27
Williams v. Bruffy, 12 Otto 248 ................................................... 28
Williams v. Georgia, 349 U.S. 375 ....................................................  27

CONSTITUTIONAL AND STATUTORY PROVISIONS:

Article VI of the Constitution ................................................... 3, 13
First Amendment to the Constitution.......................3, 11, 13, 21, 22
Thirteenth Amendment to the Constitution ....................  3, 11, 14
Fourteenth Amendment to the Constitution..................3, 11, 12, 13

Civil Rights Act of 1866 (14 Stat. 27):
42 U.S.C. § 1981...................................  2, 3, 11, 14, 15, 16, 17
42 U.S.C. § 1982........................................  2 , 3 , 1 1 , 1 4 , 1 5 , 1 7

28 U.S.C. § 1257(3) ....................................................................... 2
28 U.S.C. § 1651(a)............................................................................ 28
28 U.S.C. § 2106 ............................................................................ 28
Code of Virginia, 1950 (1949 ed.), § 13-220...................................  6
Rules of the Supreme Court of Appeals of Virginia, Rule 5:1,

§ 3(f), 2 Code of Virginia, 1950 (1957 Replace. Vol.) 602. . . 4, 5
25, 26



MISCELLANEOUS:

Practical Builder, Vol. 29, No. 2 (Lebruary 1 9 6 4 )....................... 19

Urban Land Institute, Open Space Communities in the Mar­
ket Place (Tech. Bulletin 57, 1966).............................................  18

Washington Post (June 12, 1967) ................................................... 19

(v)



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1968

No.

P a u l  E . S u l l iv a n , e t  a l., Petitioners 
v.

L ittle  H u n t in g  Pa r k , In c ., e t  al.

T. R . F r e e m a n , J r ., e t  a l., Petitioners 
v.

L ittle  H u n t in g  P a r k , In c ., e t  al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

Petitioners pray that a writ of certiorari issue to review 
the decision of the Supreme Court of Appeals of Virginia 
entered October 14, 1968, in these two related cases.^

^Petitioners in the Sullivan case, in addition to Paul E. Sullivan, are 
Flora L. Sullivan, his wife, and their seven minor children, William F. 
Sullivan, Graciela P. Sullivan, Ana I. Sullivan, Maire Sullivan, M. Dolo­
res Sullivan, M. Monica Sullivan, and Brigid Sullivan, who sued by and 
through Paul E. Sullivan, their father and next friend. In the Freeman 
case the petitioners, in addition to T. R. Freeman, Jr., are Laura 
Freeman, his wife, and their two minor children, Dale C. Freeman 
and Dwayne L. Freeman, who sued by and through T. R. Freeman, 
Jr., their father and next friend. Respondents in both cases, in addi­
tion to Little Hunting Park, Inc., are Mrs. Virginia Moore, Ronald L. 
Arnette, S. Leroy Lennon, Raymond R. Riesgo, Mrs. Marjorie Madsen, 
William J. Donohoe, Oskar W. Egger, and Milton W. Johnson, individ­
uals who were directors of said corporation at times material herein.



2

PRIOR OPINIONS

This Court’s earlier per curiam opinion remanding these 
cases to the Supreme Court of Appeals of Virginia is reported 
at 392 U.S. 657, and is printed in Appendix B hereto, 
infra, p. 32. The opinion of the Supreme Court of Appeals 
of Virginia subsequent to the order of remand is reported at 
163 S.E.2d 588, and is printed in Appendix B hereto, infra, 
pp. 33-35. The memorandum orders of the Supreme Court 
of Appeals of Virginia rejecting the appeals from the trial 
court are not reported and are printed in Appendix B hereto, 
infra, pp. 36-37. The decision of the trial court in the Sul­
livan case was contained in a letter to the parties dated April 
7, 1967, which is reported at 12 Race Rel. L. Rep. 1008, and 
the decree was entered April 12, 1967; they are printed in 
Appendix B hereto, infra, pp. 38-41. The trial court’s deci­
sion in the Freeman case was contained in a letter dated 
April 21, 1967, which is not reported, and the decree was 
entered May 8, 1967; they are printed in Appendix B 
hereto, infra, pp. 42-44.

JURISDICTION

The decision of the Supreme Court of Appeals of Virginia 
was rendered on October 14, 1968. The jurisdiction of this 
Court is invoked under 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Whether the Supreme Court of Appeals of Virginia 
properly relied upon a non-federal procedural ground as the 
sole basis for refusing to accept the remand of this Court 
after this Court had held that such ground was inadequate 
to bar consideration of the federal questions presented by 
this case.

2. Whether the Civil Rights Act of 1866 (42 U.S.C. 
§§ 1981, 1982) which guarantees Negroes the same rights as 
are enjoyed by white persons to make and enforce contracts



3

and to lease and hold property is violated when a Negro, 
because of his race, is not permitted by the board of direc­
tors of a community recreation association to use a mem­
bership share which has been assigned to him by his landlord 
as part of the leasehold estate.

3. Whether a landlord who is expelled from a community 
recreation association because he voices disagreement with 
with the directors’ racially motivated refusal to approve his 
assignment of a share in the association to his Negro tenant 
may obtain relief from the association’s retaliatory action 
under the Civil Rights Act of 1866 (42 U.S.C. §§ 1981, 1982).

4. Whether the Fourteenth Amendment to the Constitu­
tion of the United States is violated by a community recre­
ation association when it excludes from its facilities on the 
basis of his race, a person who is otherwise eligible to use 
them, and by a state court in sanctioning the exclusion.

5. Whether the free speech protections of the First and 
Fourteenth Amendments to the Constitution of the United 
States are violated by a community recreation association 
when it expels a shareholder for dissenting from its discrim­
inatory racial policy, and by a state court in sanctioning the 
expulsion.

STATUTORY AND CONSTITUTIONAL PROVISIONS

The statutory provisions involved are 42 U.S.C. §§ 1981 
and 1982. The provisions of the Constitution of the United 
States involved are Article VI, the First Amendment, the 
Thirteenth Amendment and the Fourteenth Amendment, 
Section 1. The foregoing provisions are set forth in Appen­
dix A, infra, pp. 29-30.



4

STATEMENT

A. Introduction

Briefly, respondent Little Hunting Park, Inc. is a Virginia 
non-stock corporation organized for the purpose of operat­
ing a community park and swimming pool for the benefit 
of residents of certain housing subdivisions in Fairfax 
County, Virginia. A person who owns a membership share 
entitling him to use the association’s facilities is permitted 
under the corporate by-laws, in the event he rents his house 
to another, to assign the share to his tenant, subject to 
approval by the board of directors. In the instant case the 
directors refused to approve such an assignment from Paul 
E. Sullivan to Dr. T. R. Freeman, Jr., solely on the ground 
that Freeman and the members of his family are Negroes. 
When Sullivan protested the directors’ discriminatory racial 
policy and sought to reverse their refusal to approve the 
assignment, they expelled him.

Petitioners sued separately in the state court challenging 
on federal, as well as state, grounds the racial restriction 
imposed by the directors on the assignment of the share in 
the association, and asserting the unlawfulness of Sullivan s 
expulsion; injunctive relief and monetary damages were 
sought. Following trials, the lower court dismissed the 
complaints holding that the corporation is a “private social 
club” with authority to determine the qualifications of 
those using its facilities, including the right to deny such 
use on the basis of race. The court also held that the cor­
poration’s expulsion of Sullivan was permitted by its 
by-laws and was justified by the evidence. Petitions for 
appeal were thereafter submitted to the Supreme Court of 
Appeals of Virginia, which were rejected by that court for 
the stated reasons that petitioners had failed to comply with 
a procedural rule of that court.2

2The Virginia court, citing its Rule 5:1, Sec. 3(f), (Appendix A, infra, 
pp. 30-31), stated that the appeals were “not perfected in the man­
ner provided by law in that opposing counsel was not given reasonable



5

In their petition for a writ of certiorari filed in this Court 
on March 1, 1968, petitioners contended that the Virginia 
court’s application of its procedural rule to bar the appeals 
was arbitrary and unreasonable—warranted neither by the 
facts nor the court’s prior construction of its procedural 
rule. Accordingly, petitioners asserted that in view of the 
claimed violations of their federally protected rights, the 
procedural ground on which state court based its decision 
should be examined to determine its adequacy to bar review 
by this Court.-3 * 5

This Court in a per curiam opinion rendered June 17, 
1968, stated (392 U.S. 657):

The petition for a writ of certiorari is granted and 
the judgment is vacated. The case is remanded to 
the Supreme Court of Appeals of Virginia for fur­
ther consideration in light of Jones v. Alfred H. 
Mayer Co., 392 U.S. 409.

The order of remand was thereafter received by the 
Supreme Court of Appeals of Virginia, and on October 14,

written notice of the time and place of tendering the transcript and a 
reasonable opportunity to examine the original or a true copy of it.” 
The rule referred to provides that as part of the procedure for certify­
ing a record for appeal the reporter’s transcript must be tendered to 
the trial judge within 60 days and signed at the end by him within 70 
days after final judgment. The rule also states: “Counsel tendering 
the transcript . . . shall give opposing counsel reasonable written notice 
of the time and place of tendering it and a reasonable opportunity to 
examine the original or a true copy of it.” 2 Code of Virginia, 1950 
(1957 Replace. Vol.) 602.

3Citing Parrot v. City of Tallahassee, 381 U.S. 129; N.A.A.C.P. v. 
Alabama, 377 U.S. 288, 297; Staub v. City of Baxley, 355 U.S. 313, 
318-320; N.A.A.C.P. v. Alabama, 357 U.S. 449, 454-458. In their 
petition for certiorari, petitioners related in detail the steps they had 
gone through to comply with the state court’s procedural rule, and 
showed how they had in fact complied with it in both substance and
form, on the basis of the state court’s prior construction of its rule. 
(For the convenience of the Court, the relevant facts and authorities
relied on by petitioners in support of their contention are repeated 
infra, pp. 23-27.) The opposition to the petition for certiorari filed by 
respondents was based exclusively on the procedural issue.



6

1968, that court issued an opinion declaring its refusal to 
accept the remand. The court cited as its reason the same 
ground originally given for refusing to hear the cases, i.e., 
petitioners, asserted failure to perfect their appeals from the 
trial court because of noncompliance with the procedural 
rule.

In view of the unavailability of the state court as a 
forum for consideration of the asserted violations to the 
petitioners’ federally protected rights, petitioners now appeal 
to this Court for a second time, and respectfully urge it to 
consider the merits of the significant questions presented 
herein.

B. Little Hunting Park, Inc.—Its purpose 
and manner of operation

Little Hunting Park, Inc. was incorporated in 1954 under 
the Virginia Non-Stock Corporation Law'* for the purpose, 
as set forth in its certificate of incorporation, of organizing 
and maintaining “a community park and playground facili­
ties” for “ community recreation purposes” (T. 184-185).4 5 
Pursuant to this object, the corporation owns land on which 
it has built and operates a swimming pool, tennis courts 
and other recreation facilities for the benefit of residents of 
specified subdivisions and certain adjacent neighborhoods in 
Fairfax County, Virginia (T. 186, 228). The corporation’s 
by-laws provide that shares may be purchased by adult per­
sons who “reside in, or who own, or who have owned 
housing units” in one of the specified subdivisions (T. 186). 
A share entitles all persons in the immediate family of the 
shareholder to use the corporation’s recreation facilities (T. 
186-187).

The by-laws limit the number of shares in the corpora­
tion to 600 (T. 186). There is no limitation, however, on

4§ 13-220, Code of Virginia, 1950 (1949 ed.).
^“T.” refers to the transcript in the Sullivan case. “F.T.” refers to 

the Freeman transcript.



7

the number of shares that an individual may own, and it is 
not unusual for a person owning more than one house in 
the neighborhood served by Little Hunting Park pool to 
own a separate share for the use of the family occupying 
each house (T. 9, 189-190). Shares may also be purchased 
by institutions and corporations owning property in the 
area where the swimming pool is located. Thus, a share is 
owned by a church located in the neighborhood, and shares 
have been owned by two real estate companies that built 
and marketed the houses in Bucknell Manor and Beacon 
Manor, subdivisions served by Little Hunting Park. These 
two corporations have, at various times, owned at least 25 
shares which they have retained for periods ranging from 5 
to 7 years (F.T. 42-44).

The right to use Little Hunting Park’s facilities may be 
acquired by purchase or by temporary assignment of a cor­
porate share. The share may be purchased directly from 
the corporation, from any shareholder, or, upon buying a 
house in the community, from the vendor as part of the 
consideration for the purchase price of the house (T. 9, 
187-189). A person residing within one of the subdivisions 
served by Little Hunting Park may obtain temporary assign­
ment of a share; however, an assignment may only be made 
from landlord to tenant. (T. 187, 200).6

The corporation’s by-laws have always provided that the 
issuance and assignment of shares are subject to the approval 
of the board of directors (T. 15, 192, 251-252). There 
were 1,183 shares issued and 322 shares assigned during the 
period from 1955 through 1966, the first 12 years of the 
corporation’s existence (T. 192-193, 196-197). However, 
with the exception of the assignment described below to 
Dr. T. R. Freeman, Jr., there is no record of any assignment 
ever being denied approval by the directors (T. 199). One

^Regardless of whether the swimming pool and park facilities are 
used by the shareholder or assignee, the owner of a share is obligated 
to pay an annual assessment in order to keep his share valid. (T. 9-10, 
199-200).



8

applicant for the purchase of a share was disapproved during 
that period, but there is no evidence that this was other 
than because of the individual’s failure to satisfy the geo­
graphic residence requirement of the by-laws (T. 198-199).

C. The corporation’s directors refuse to approve the 
assignment of Paul E. Sullivan’s share because the 
assignee, Dr. T. R. Freeman, Jr., and his family, 
are Negroes.

From December 1950 to March 1962, Paul E. Sullivan 
and his family lived in a house which Sullivan owned and 
continues to own on Quander Road in the Bucknell Manor 
subdivision (T. 7). In May 1955, shortly after Little Hunt­
ing Park, Inc. was organized, Sullivan purchased a share, 
No. 290, for $150 (T. 7-8). In March 1962, Sullivan 
and his family moved a short distance to another house 
that Sullivan purchased located on Coventry Road in the 
White Oaks subdivision where, as part of the purchase price 
for the property, Sullivan acquired a second share from the 
seller of the house. Share No. 925 was thereafter issued to 
Sullivan by the corporation (T. 8-9, 66-67). After moving 
to Coventry Road, Sullivan continued paying the annual 
assessments on shares Nos. 290 and 925, and leased his 
house on Quander Road to various tenants. In considera­
tion of the rent, he assigned share No. 290 as part of the 
leasehold interest (T. 9-10, 12, 14-16). Sullivan testified 
that the lease arrangement was a “package deal . . . the 
house, the yard, and the pool share” (T. 10).

On February 1, 1965, Sullivan leased the Quander Road 
premises for a term of one year to Dr. T. R. Freeman, Jr. 
at a rent of $1,548, payable in monthly installments of 
$129 (T. 10-11). The deed of lease described the property 
demised as “ the dwelling located at 6810 Quander Road, 
Bucknell Manor, Alexandria, Virginia 22306, and Little 
Hunting Park, Inc. pool share No. 290” (T. 11). The lease 
was extended in identical terms as of February 1, 1966, and 
February 1, 1967 (T. 10-11). Dr. Freeman met all of the



9

eligibility requirements for an assignee of a share in the cor­
poration, since he is an adult, and the house that he leased 
from Sullivan is in Bucknell Manor subdivision (T. 204- 
205). Freeman has no disqualifications; he is an agricul­
tural economist with a Ph.D. degree from the University 
of Wisconsin, and at the time of the events herein was 
employed by the Foreign Agriculture Division of the United 
States Department of Agriculture (T. 176-177). He also 
holds the rank of Captain in the District of Columbia 
National Guard (T. 177). Dr. Freeman and his wife and 
children are Negroes (T. 178).

In April 1965, Paul E. Sullivan paid the annual assessment 
of $37 on share No. 290 and, pursuant to his obligation 
contained in the lease on the Quander Road property, com­
pleted the form prescribed by the corporation affirming 
that Dr. Freeman was his tenant and therefore eligible to 
receive the assignment of that share (T. 11-12). Addition­
ally, Dr. Freeman supplied certain information and signed 
the form, thereby doing everything required by the corpo­
ration to qualify as an assignee of the share (T. 12). How­
ever, the board of directors of the corporation, meeting on 
May 18, 1965, refused to approve the assignment of share 
No. 290 to Dr. Freeman, because he and the members of 
his family are Negroes (T. 13, 17-18, 164, 204-205, 239- 
240, 281). On May 25, 1965, Sullivan received a letter 
from S. L. Lennon, the corporation’s membership chairman, 
notifying him that his assignment of share No. 290 to Dr. 
Freeman had been denied approval by the board of direc­
tors; no reason was given (T. 13).

D. The corporation’s directors expel Paul E. Sullivan 
because of his criticism of their refusal to approve 
the assignment of his share to Dr. T. R. Freeman,
Jr. on the basis of race.

Sullivan, upon learning of the directors’ disapproval of his 
assignment to Dr. Freeman, sought further information con­
cerning their action (T. 13-14, 16). In response to his



10

inquiry, a delegation from the board-membership chairman 
S. L. Lennon, John R. Hanley, a former president and 
director of the corporation, and Oskar W. Egger, a director- 
visited Mr. and Mrs. Sullivan at their home on May 28, 
1965, and admitted that Dr. Freeman had been rejected 
solely because of his race (T. 16-18, 163-164, 250, 259, 
278, 281). To Sullivan, this action was shocking, and as a 
matter of his religious teaching and conviction, immoral; he 
so informed the delegation. Furthermore, as a resident of 
the neighborhood for many years and as a member of Little 
Hunting Park, Inc. since its inception, he could not believe 
their assertion that the board’s action reflected the unani­
mous view of the members of the corporation (T. 19, 22,
164) . Nor could Sullivan in good conscience accept the 
board’s offer to purchase share No. 290 which he had con­
tracted to assign to Dr. Freeman (T. 18-19).

Following this meeting, Sullivan and Dr. Freeman, who 
was also his fellow parishioner, sought the advice of their 
priest, Father Walsh, who suggested that the board might 
reconsider its action if the directors had an opportunity to 
meet with Dr. Freeman and consider his case on its merits 
(T. 26). The suggestion that such a meeting be held was 
rebuffed, however, by Mrs. Moore, the corporation’s presi­
dent, when Sullivan spoke to her on June 9 (T. 28-29,
165) . At about the same time, Sullivan spoke with several 
other shareholders, who, upon learning of the board's 
action, wrote letters to President Moore in which they 
expressed their strong disagreement with the board’s action 
in disapproving Dr. Freeman (T. 217-223). After receipt 
of these letters, the board met on June 11, and decided 
that there appeared to be “due cause” for Sullivan’s expul­
sion from the corporation because of his “non-acceptance 
of the Board’s decision” on the assignment of his share 
“along with the continued harassment of the board members, 
etc.” (T. 29-31, 204, 220).7

n
The sole ground for expulsion provided under the corporate 

by-laws is for conduct “inimicable [sic] to the corporation’s members.” 
Article III, Section 6(b). The board purported to act under this sec­
tion in expelling Sullivan (T. 29-31, 206-207).



11

Sullivan was told of the board’s action in a letter from 
President Moore dated July 7, 1965, which also informed 
him that he would be given a “hearing” by the directors on 
July 20, 1965 (T. 29-31, 206). Because the directors refused 
to postpone the hearing in order that Sullivan’s attorney 
could appear with hirp, and because they refused to provide 
Sullivan with a statement of the conduct alleged to consti­
tute the basis for his expulsion, Sullivan was compelled to 
commence a civil action in the Circuit Court of Fairfax 
County (T. 52-53). Settlement of the action was reached 
upon the corporation’s agreeing to postpone the hearing to 
August 17, 1965, and to furnish a detailed statement of the 
charges against him (T. 53). A statement specifying the 
alleged grounds for Sullivan’s expulsion was thereafter fur­
nished to him (T. 20-21).

At the “hearing” held by the directors on August 17, no 
evidence was introduced in support of any of the allegations 
against Sullivan, and he was not permitted to learn the 
identity of the persons making charges against him, nor to 
question them. He was also denied permission to have a 
reporter present to transcribe the proceeding. He had only 
the opportunity to present evidence concerning the charges 
as he understood them, and to state his views (T. 45-46, 
53-55, 62-63, 129-130, 131, 286-287, 289). On August 24, 
1965, the board met, and unanimously voted to expel Sulli­
van (T. 228). By letter of August 27, 1965, Sullivan was 
notified by President Moore of his expulsion, and he was 
tendered the then current “sale price” of his two shares, 
plus prorated annual assessments on the two shares, the 
total amounting to $399.34 (T. 55, 173-174).

E. Relief sought

Petitioners seek injunctive relief and monetary damages 
under the Civil Rights Act of 1866 (14 Stat. 27, 42 U.S.C. 
§§ 1981 and 1982), as well as under the First, Thirteenth 
and Fourteenth Amendments. However, since the petition­
ers in the Freeman case no longer reside in the area served



12

by Little Hunting Park, Inc., their claim is now limited 
solely to compensatory and punitive damages, pursuant to 
the allegations of their complaint, as the result of having 
been denied access for 2 years to the community recreation 
facilities operated by the association.5 Petitioners in the 
Sullivan case seek an order compelling full reinstatement of 
Paul E. Sullivan in Little Hunting Park, Inc. and reinstate­
ment of shares Nos. 290 and 925. They also seek compen­
satory and punitive damages from respondents for Paul E. 
Sullivan’s wrongful expulsion from the association and the 
denial to them of the use of its facilities.

The federal statutory questions involved here were the 
basis for the Court’s remand of this case to the Supreme 
Court of Appeals of Virginia for further consideration in 
light of Jones v. Alfred H. Mayer Co. Petitioners have also 
relied throughout the proceeding on the Fourteenth Amend­
ment, asserting that Little Hunting Park, Inc., by its opera­
tion of a community park and recreation facility, exercises 
a public function and hence is prohibited by the Equal 
Protection clause from denying persons the use of its facili­
ties on the basis of race (Freeman memorandum to trial 
court in opposition to demurrer, pp. 22-23). Petitioners 
have further contended that their rights under the Four­
teenth Amendment are violated by the state court’s giving 
validity to the racial restriction imposed by respondents on 
the Little Hunting Park facilities (Sullivan and Freeman 
complaints). Finally, petitioner Paul E. Sullivan contended 
at the trial that his expulsion from the association because 
of his dissent from its racial policy violated his constitutional 
right of free speech (T. 224-245). In his petition for appeal, 
Sullivan further contended on the basis of Curtis Publishing 
Co. v. Butts, 388 U.S. 130, which had been decided in the 
interim between the trial and the filing of the appeal, that

5In June 1967, Dr. Freeman and the members of his family left 
the United States, and they currently reside in Pakistan where Dr. 
Freeman is Assistant Agricultural Attache in the United States 
Embassy.



13

the directors of Little Hunting Park, Inc. were “public 
figures” in the community within the meaning of that case. 
Hence, it was asserted that the court could not under the 
First and Fourteenth Amendments apply state law to “sanc­
tion or recognize as valid the directors’ action in expelling 
Sullivan from the association merely because he exercised 
his right to speak out critically concerning their discrimina­
tory racial policy” (Sullivan petition for appeal, p. 34).

REASONS FOR GRANTING THE WRIT

1. The Court, by granting certiorari in this proceeding in 
the first instance, impliedly held that the non-federal ground 
on which the Supreme Court of Appeals of Virginia rejected 
the appeals in these cases was inadequate to bar considera­
tion of the federal questions involved. Upon remand, how­
ever, the Virginia court adhered to its prior holding, again 
asserting that because the procedural rule had not been 
complied with, the cases were not properly before it. The 
court, therefore, refused to consider the issues on the merits 
in light of Jones v. Alfred H. Mayer Co., as required by this 
Court’s mandate.

The refusal by the Supreme Court of Appeals of Virginia 
to comply with this Court’s order of remand is itself com­
pelling reason for the Court to grant certiorari in this case. 
By its action, the state court has disregarded its duty under 
the Supremacy Clause, and for this Court to allow this 
extraordinary conduct to pass without notice can only be 
detrimental to our system of government. Martin v. Hunter’s 
Lessee, 1 Wheat. 304.9

2. Certiorari should be granted to determine whether 
petitioners have been denied rights guaranteed to them by

9Petitioners assume that this Court’s holding that the state ground 
of decision is inadequate to bar review of the federal questions is not 
now subject to reexamination by the Court. Tyler v. Magwire, 17 
Wall. 253, 283-284; N.A.A.C.P. v. Alabama, 360 U.S. 240, 245, and 
cases cited.



14

the Thirteenth Amendment and 42 U.S.C. §§ 1981, 1982 
(Civil Rights Act of 1866, 14 Stat. 21).10

Last Term, in Jones v. Alfred H. Mayer Co., supra, the 
Court held that 42 U.S.C. § 1982, which was part of § 1 
of the Civil Rights Act of 1866 “bars all racial discrimina­
tion, private as well as public, in the sale or rental of 
property, and that the statute, thus construed, is a valid 
exercise of the power of Congress to enforce the Thirteenth 
Amendment.” 392 U.S. at 413 (emphasis in original). The 
Court in the Jones case did not specifically consider 42 
U.S.C. § 1981. However, since that section also originated 
in § 1 of the Act of 1866, the Court by implication held 
that § 1981 similarly “bars all racial discrimination, private 
as well as public,” insofar as it affects the right of Negroes, 
inter alia, “ to make and enforce contracts.” 392 U.S. at 
413, 441-442 n. 78.

The complaint in the Freeman case embodied two causes 
of action: one alleging wrongful interference by respondents 
with performance of the deed of lease between Sullivan and 
Freeman, and the other asserting wrongful deprivation by 
respondents of Freeman’s full use and enjoyment of the 
leasehold estate demised to Freeman under the deed of 
lease. By disapproving the assignment of share No. 290 to 
Freeman and thus preventing performance of the contract 
between Sullivan and Freeman solely because of the latter’s 
race, respondents violated Freeman’s right guaranteed by 
§ 1981 to make and enforce contracts under the same con­
ditions as white persons. Freeman’s rights guaranteed him 
by § 1982 were also violated by respondents. Thus, since 
share No. 290 was an integral part of the leasehold estate 
conveyed from Sullivan to Freeman and represented part of 
the value for which Freeman paid the rent specified in the

/0The provisions of 42 U.S.C. §§ 1981, 1982 are also at issue in 
Daniel v. Paul, No. 488, October Term 1968, certiorari granted 
December 9, 1968. The Court’s concurrent consideration of the 
Daniel case and the one at bar would be beneficial from the standpoint 
of clarifying the scope and effect of these statutory provisions.



15

lease, respondents’ refusal to approve the assignment violated 
Freeman’s right under that section to lease and hold real 
property without restriction on account of his race. Fur­
ther, the membership share in Little Hunting Park, Inc., a 
non-stock corporation, in itself constitutes personal property 
and hence comes within the terms of § 1982. Hyde v. 
Woods, 94 U.S. 523; Page v. Edmunds, 187 U.S. 596; Baird 
v. Tyler, 185 Va. 601, 39 S.E.2d 642, 645-646. It is clear, 
therefore, that the Freemans have been deprived of rights 
falling squarely within the ambit of §§ 1981 and 1982 if the 
statute “means what it says.” Jones, supra, 392 U.S. at 
421.

In dismissing Freeman’s complaint, the trial court relied 
on the provision of the corporation’s by-laws which condi­
tioned Sullivan’s assignment of share No. 290 on the 
approval of the board of directors. In this respect, the situ­
ation here is no different than in Shelley v. Kraemer, 334 
U.S. 1, where the property owner similarly did not have an 
unlimited right to transfer his property. It too was subject 
to a racially restrictive covenant which was a “condition 
precedent” to the right of sale. 334 U.S. at 4. The exer­
cise, therefore, by the board of directors of its “right” to 
approve assignments and determine membership eligibility 
on the basis of race amounts to nothing less than the 
explicit racial covenant in Shelley. Thus, whether expressly 
denominated a racial covenant or a right of approval is of 
no moment;;i it remains a racial restriction on the use or 
transfer of property and hence is invalid under the 1866 
statute.

3. As well as creating rights for Negroes to be free from 
discriminatory treatment, 42 U.S.C. §§ 1981 and 1982 impose 
correlative obligations on persons not to deal discriminatorily 11

11 Lauderbaugh v. Williams, 409 Pa. 351, 186 A.2d 39; Mountain 
Springs Ass’n v. Wilson, 81 N.J. Super. 564, 196 A.2d 270, 275-277; 
Tuckerton Beach Club v. Bender, 91 N.J. Super. 167, 219 A.2d 529; 
and see Harris v. Sunset Islands Property Owners, Inc., 116 So. 2d 622 
(Fla.).



16

with Negroes. Thus, if Sullivan had refused to assign share 
No. 290 to Freeman because of the latter’s race he would 
have violated the statute.

Sullivan was expelled from the corporation, and his two 
shares were revoked, however, as a direct result of his having 
dealt with Freeman, as the statute requires, on a non- 
discriminatory basis, and because he sought to reverse the 
directors’ discriminatory refusal to approve the assignment 
in order that he could perform his obligation to Freeman 
under their contract/2 The expulsion was unquestionably 
retaliatory, and as “a matter of statutory construction and 
for reasons of public policy . . . cannot be permitted.” Ed­
wards v. Habib, 397 F.2d 687, 699 (C.A.D.C.), and cases 
cited at n. 38. Sullivan “was expelled from the association 
for doing that which the law . . . not only authorizes but 
encourages.” State ex rel. Waring v. Georgia Medical Soci­
ety, 30 Ga. 608, 629. The action was therefore contrary to 
public policy and he is entitled to reinstatement. Ibid. Ac­
cord: Malibou Lake Mountain Club v. Robertson, 219 Cal. 
App. 2d 181, 33 Cal. Rptr. 74, 77; Spayd v. Ringing Rock 
Lodge No. 665, 270 Pa. 67, 113 Atl. 70; Bernstein v. 
A lame da-Contra Costa Medical Assn, 139 Cal. App. 2d 241, 
293 P.2d 862, 865; Thompson v. Grand International Bro­
therhood o f Locomotive Engineers, 41 Tex. Civ. App. 176, 
91 S.W. 834, 838. Cf. National Labor Relations Board v. 
Industrial Union o f Marine and Shipbuilding Workers, 391 
U.S. 418, 424-425.

Furthermore, the Court recognized in Barrows v. Jackson, 
346 U.S. 249, that to sanction “punishment” of a person 
because he has refused to discriminate would be to render 
nugatory the rights of Negroes to be free from discrimina­
tion. As the Court stated there, “The law will permit 
respondent to resist any effort to compel her to observe

^Sullivan’s membership in the association, including his right to 
assign his share, was also based on a contract in the form of the cor­
porate by-laws. The directors’ invocation of this contract to disapprove 
the assignment of Sullivan’s share to Freeman on racial grounds thus 
independently violated 42 U.S.C. § 1981, a matter which only Sulli­
van, who was bound by the by-laws, was in a position to protest.



17

such a covenant . . . since she is the only one in whose 
charge and keeping reposes the power to continue to use 
her property to discriminate or to discontinue such use.” 
346 U.S. at 259. Similarly here, for the law to sanction 
Sullivan’s punishment by expulsion because of his refusal to 
discriminate would render Freeman’s rights under §§ 1981 
and 1982 illusory, indeed.13

4. In addition to the statutory grounds for reversal of 
the court below, there are compelling constitutional reasons 
why its decision should not stand. It is well recognized 
that where facilities are built and operated primarily for 
public benefit and their operation is essentially a public 
function, they are subject to the limitations to which the 
State is subject and cannot be operated in disregard of the 
Constitution. Evans v. Newton, 382 U.S. 296; Marsh v. 
Alabama, 326 U.S. 501; Amalgamated Food Employees 
Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 
308.14 The record here shows that Little Hunting Park, like 
Baconsfield Park which was the subject of Evans v. Newton, 
performs the public function of providing recreation for 
members of the community and, accordingly may not be 
operated on a racially discriminatory basis. Respondent 
association was organized and incorporated for the express 
purpose, as stated in its certificate of incorporation, of 
operating “a community park and playground facilities” for 
“community recreation purposes” (T. 184-185). Pursuant 
to this object, it operated its park and swimming pool for 
11 years, making its facilities open to everyone who lived in 
the geographic area defined in the by-laws. Consistent with

/ ?Although the statute declares the rights of Negroes not to be 
discriminated against, Sullivan, a Caucasian, has standing to rely on 
the invasion of the rights of others, since he is “the only effective 
adversary” capable of vindicating them in litigation arising from his 
expulsion. Barrows, supra, 346 U.S. at 259.

^Accord: Terry v. Adams, 345 U.S. 461 \ Public Utilities Comm’n 
v. Pollack, 343 U.S. 451 \Simkins v. Moses H. Cone Memorial Hospital, 
323 F.2d 959, 968 (C.A. 4), certiorari denied, 376 U.S. 938.



18

its stated purpose, the corporation never pursued a policy 
of exclusiveness. It was not until 1965, when Freeman was 
disapproved, that there was a departure from the corporate 
purpose, making the park available to everyone in the com­
munity, except Negroes./5

The impact on the community of the racial policy here is 
even greater than it was in Evans v. Newton. For, rather 
than being a mere prohibition against the use of a public 
recreation facility by Negroes, Little Hunting Park possesses 
the power to significantly affect the racial composition of 
the community which it serves.

There can be little doubt that the availability of a com­
munity swimming pool and recreation facility is a major 
factor enhancing the desirability and value of residential 
p r o p e r t y . T h e  real estate advertisements in any metropol-

^T he trial court’s finding that Little Hunting Park is a “private 
social club” is neither supported by the record nor dispositive of the 
issues in this case. As in the cases just cited, “private” ownership is 
not determinative if the entity performs a public function. Unlike a 
conventional private club, membership in Little Hunting Park, Inc. is 
not personal to the individual; rather, multiple memberships for 
investment purposes are permitted and may be held by corporate 
bodies as well as individuals. Further, the corporation has never exer­
cised any policy of genuine selectivity in passing on applicants for 
membership and assignment. The sole requirement for membership 
specified by its charter and by-laws is residence within a specified 
geographical area; within that area, it “is open to every white person, 
there being no selective element other than race.” Evans v. Newton, 
supra, 382 U.S. at 301. As the Fourth Circuit recently declared, 
“ [Sjerving or offering to serve all members of the white population 
within a specified geographic area is certainly inconsistent with the 
nature of a truly private club.” Nesmith v. Young Men’s Christian 
Ass’n o f Raleigh, N.C., 397 F.2d 96, 102. See also, Rockefeller 
Center Luncheon Club, Inc. v. Johnson, 131 F. Supp. 703, 705 (S.D. 
N.Y.); United States v. Richberg, 398 F.2d 523 (C.A. 5).

^Expert testimony to this effect was offered by petitioners in the 
court below (T. 133-136, 138, 146-147). Also see, Urban Land Insti­
tute, Open Space Communities in the Market Place (Tech. Bulletin 
57, 1966), 7, 21, 41, 47-48 (Plaintiffs’ Exh. 28).



19

itan newspaper reveal the emphasis that is placed on the 
accessibility of a swimming pool in a neighborhood, and 
attest to the great importance that is attached to this feature 
in marketing homes.77

However, the evidence in this case shows that munici­
pally-owned public swimming pools are virtually non-existent 
in the Washington metropolitan area of Northern Virginia; 
the “public function” of providing “mass recreation” (Evans 
v. Newton, supra, 382 U.S. at 302) through community 
swimming pools has been assumed by privately organized 
recreation associations.* 75 Because of the “abdication” by 
local municipalities of this “ traditional governmental func­
tion” (Mulkey v. Reitman, 64 Cal. 2d 529, 413 P.2d 825, 
832, aff’d, 387 U.S. 369), a significant role is played by 
“private” associations such as Little Hunting Park in ful­
filling this community need. Accordingly, Negroes will be 
discouraged from moving into a neighborhood where such 
an association denies them access to the only convenient 
recreation facilities because of their race. Conversely, a 
property owner owning a share in such an association will 
be deterred from selling or renting his house to a Negro, 
since the Negro will be ineligible for purchase or assignment 
of the share. Accordingly, since as shown, a house has 
greater market value if the purchaser or tenant is eligible to 
use such a facility, if a Negro is able to obtain housing 
in a community where he is barred from the swimming pool 
association in which the seller or landlord is a shareholder,

77“ [T]he community swimming pool is considered by most builders 
as one of their most popular sales appeals to people of all ages and 
incomes.” 29 Practical Builder No. 2, p. 94 (Feb. 1964) (T. 148, 
Plaintiffs’ Exh. 29). See also T. 148-151, Plaintiffs’ Exh. 30.

7SIn the Northern Virginia metropolitan suburbs with a population 
of nearly 700,000 persons, there are only two municipally owned 
swimming pools and one lake for swimming (T. 138-139). By con­
trast, in this same area there are nearly 50 community swimming 
pools of the same type as Little Hunting Park. In the suburbs of 
Maryland and Virginia there are over 105 pools of this type. The 
Washington Post, p. A20, June 12, 1967.



20

there is an immediate loss in the value of the residence 
which must be borne by one of the parties to the transac­
tion. Thus, an owner in these circumstances will either 
refuse to sell or rent to a non-Caucasian or else will require 
him to pay a higher price than the property is worth absent 
access to the recreation facility. “Solely because of their 
race, non-Caucasians will be unable to purchase, own, and 
enjoy property on the same terms as Caucasians.” Barrows 
v. Jackson, supra, 346 U.S. at 254. And if this pattern is 
widespread, and as the record shows to be true for Northern 
Virginia, governments are unwilling to duplicate privately 
owned community recreation facilities with municipally 
operated facilities, non-Caucasians will be discouraged from 
purchasing or renting housing in whole sections of the 
State.

Undoubtedly, a significant factor underlying this Court’s 
decision in Barrows v. Jackson, supra, and the closely related 
Shelley v. Kraemer, 334 U.S. 1, was recognition of the fact 
that a racially restrictive covenant is usually part of a sys­
tem, the effect of which can be to blanket an entire com­
munity with racial restrictions, which create Negro and 
white ghettos. The racially discriminatory policy of Little 
Hunting Park, no less than the discriminatory policies of 
those who enter into racial covenants, creates a system 
which is the equivalent of, and has the effect of a racial 
zoning ordinance. It is “as if the State had passed a statute 
instead of leaving this objective to be accomplished by a 
system of private contracts, enforced by the State.” Bell v. 
Maryland, 378 U.S. 226, 329 (dissenting opinion of Justice 
Black), quoted in Reitman v. Mulkey, 387 U.S. 369, 385 
(concurring opinion of Justice Douglas). Cf. Buchanan v. 
Warley, 245 U.S. 60./9

;9 It should be further noted that the instant case, like Shelley v. 
Kraemer, involves an agreement voluntarily entered into by a white 
property owner and a Negro attempting to acquire property, with 
attempted intervention by a third party seeking to prevent perform­
ance. Shelley and Barrows make clear that where, as here, “both 
parties are willing parties” to such a contract a state court may not



21

5. Constitutional considerations provide further warrant 
for reversal of the state court’s affirmance of Sullivan’s 
expulsion from the corporation. If the directors’ summary 
expulsion of Sullivan because of his dissent from their racial 
policy is allowed to stand, it will have the effect of granting 
them an immunity from criticism to which they are not 
constitutionally entitled. By assuming roles of leadership in 
Little Hunting Park, Inc.—an organization devoted to devel­
oping and operating a community recreation facility—the 
directors necessarily became parties to any matters of public 
interest or public controversy in which the association might 
become involved. It is apparent that whatever way the 
directors had acted with respect to the Freeman assignment, 
their decision was likely to be a subject for comment and 
criticism by members of the association, as well as other 
persons with an interest in the affairs of the community. 
The directors were not entitled, however, to expel Sullivan 
because he voiced opposition to their discriminatory racial 
policy. Since, as we have shown above, the public function 
performed by Little Hunting Park, Inc. makes it subject to 
constitutional limitations, forfeiture of an individual’s rights 
under the First Amendment may not be made a condition 
of use of its facilities. Marsh v. Alabama, supra, 326 U.S. 
501; Amalgamated Food Employees Union Local 590 v. 
Logan Valley Plaza, Inc., supra, 391 U.S. at 308; and see 
Pickering v. Board o f Education, 391 U.S. 563.“° * 20

give legitimacy to the effort to defeat the contract “on the grounds 
of the race or color of one of the parties.” Bell v. Maryland, supra, 
378 U.S. at 331 (dissenting opinion of Justice Black) (emphasis in 
original). It is, of course, immaterial whether the racial restriction is 
relied on as a basis for seeking affirmative relief, or, as here, is raised 
as a defense. Spencer v. Flint Memorial Park Ass’n, 4 Mich. App. 
157, 144 N.W.2d 622, 626; Clifton v. Puente, 218 S.W.2d 272, 274 
(Tex. Civ. App.). And see, Rice v. Sioux City Memorial Cemetery, 
349 U.S. 70, 80 (dissenting opinion).

20Courts have frequently been guided by the First Amendment in 
protecting the right of dissent within voluntary associations. See, e.g., 
Crossen v. Duffy, 90 Ohio App. 252, 103 N.E.2d 769, 778; Mitchell 
v. International Ass’n o f  Machinists, 196 Cal. App. 2d 796, 16 Cal.



22

The state court’s sanctioning of Sullivan’s expulsion from 
the recreation association because of his criticism of the 
directors’ erection of a racial barrier to the use of its facili­
ties is contrary to this Court’s decision in Curtis Publishing 
Co. v. Butts, supra, 388 U.S. 130, holding that the First 
Amendment protects criticism of “public figures” who par­
ticipate in events of public concern to the community. As 
was stated there (in the concurring opinion of Chief Justice 
Warren writing for a majority of the Court) with respect to 
the urbanized society that we know today:

In many situations, policy determinations which tra­
ditionally were channeled through formal political 
institutions are now originated and implemented 
through a complex array of boards, committees, 
commissions, corporations and associations, some 
only loosely connected with the Government. This 
blending of positions and power has also occurred in 
the case of individuals so that many who do not 
hold public office at the moment are nevertheless 
intimately involved in the resolution of important 
public questions or by reason of their fame, shape 
events in areas of concern to society at large.

Viewed in this context then, it is plain that 
although they are not subject to the restraints of the 
political process, “public figures,” like “public offi­
cials,” often play an influential role in ordering 
society. 388 U.S. at 163-164.

There can be little doubt that Little Hunting Park, Inc. 
plays the type of public role in the community that is 
referred to by the Chief Justice, and that the directors of 
the corporation are “public figures,” as he used the term in 
the Curtis Publishing case. Further, as that case holds, it is 
violative of the First Amendment for the State to lend its

Rptr. 813, 816-820; Madden v. Atkins, 4 N.Y.2d 283, 151 N.E.2d 
73, 78; Gallagher v. American Legion, 154 Misc. 281, 277 N.Y.S. 81, 
85, affd 242 App. Div. 604, 271 N.Y.S. 1012; Hurwitz v. Directors 
Guild o f  America, 364 F.2d 67, 75-76 (C.A. 2), certiorari denied, 385 
U.S. 971.



23

judicial processes to vindicate the aggrievement asserted by 
a public figure against critics of his manner of participating 
in events of public interest. Applied to the instant case, 
this means that the Virginia court could not sanction the 
directors’ action in expelling Sullivan from the association 
merely because he refused to acquiesce in their discrimina­
tory racial policy, but instead exercised his right to speak 
out critically concerning the matter. By holding that Sulli­
van’s dissent from the association’s policy constituted justi­
fication for his expulsion, the trial court invoked a standard 
of state law which had the effect of depriving Sullivan of 
rights protected by the First Amendment. Pickering v. 
Board o f Education, 391 U.S. 563.21 This clearly is state 
action falling within the ambit of the Fourteenth Amend­
ment. “The test is not the form in which state power has 
been applied, but whatever the form, whether such power 
has in fact been exercised.” New York Times Co. v. Sulli­
van, 376 U.S. 254, 265. Accord: Curtis Publishing Co. v. 
Butts, supra, 388 U.S. at 146-155.

In addition, to permit the state court to sanction Sulli­
van’s expulsion from Little blunting Park, Inc. for protesting 
Freeman’s exclusion from the community park would be to 
allow the State to “punish” him for his failure to abide by 
the directors’ determination that he must “discriminate 
against non-Caucasians in the use of [his] property. The 
result of that sanction by the State would be to encourage” 
the use and observance of such racial restrictions on prop­
erty. Barrows v. Jackson, supra, 346 U.S. at 254. See also 
Reitman v. Mulkey, supra, 387 U.S. at 380-381.

6. The state court’s rejection of the appeals was arbitrary 
and unreasonable, and is not a bar to this Court’s review of 
the important federal questions presented in this case. The

21 Little weight should be given to the board of directors’ determi­
nation that Sullivan’s conduct was “inimicable” [sic] to the corpo­
ration’s members in view of the patent procedural deficiencies in the 
“hearing” granted him prior to his expulsion {supra, p. 11). See Pick­
ering v. Board o f  Education, supra, 391 U.S. at 578-579 n. 2.



24

decree was entered in the Sullivan case by the trial court on 
April 12, 1967, and in the Freeman case on May 8, 1967, 
It is undisputed, as shown by the affidavits of counsel filed 
in the trial court, and incorporated in the record, that on 
the morning of June 9, 1967, counsel for the petitioners, 
Mr. Brown, notified Mr. Harris, counsel for the respondents, 
by telephone that he would submit the reporter’s transcripts 
in the two cases to the trial judge that afternoon. Mr. Brown 
further informed Mr. Harris that because of errors in the 
transcripts, he was filing motions for correction of the rec­
ord, noticing them for hearing one week hence, Friday, 
June 16, 1967, which was the court’s next Motion Day. 
Finally, Mr. Brown told counsel that he would request the 
trial judge to defer signing both transcripts for a 10-day 
period to allow time for Mr. Harris to consent to the 
motions or to have them otherwise acted on by the court. 
That same day, June 9, Mr. Brown wrote Mr. Harris to con­
firm their telephone conversation, and in his letter Mr. 
Brown reiterated that he would request the judge not to 
sign the transcripts until they had been corrected. The 
afternoon of June 9, when Mr. Brown sought to tender the 
transcripts to the judge, the latter was away from his office 
and not expected to return that day, so Mr. Brown left the 
transcripts as well as a copy of his letter to Mr. Harris with 
the judge’s secretary; the judge later ruled that the tender 
of the transcripts was made on Monday, June 12, the day 
that he received them. Meanwhile, motions to correct the 
two transcripts were served on Mr. Harris, along with the 
notice that they would be brought to hearing before the 
court on Friday, June 16.

On Monday morning, June 12, the trial judge acknowl­
edged to Mr. Brown over the telephone that he had received 
the transcripts and the motions to correct the record. Pur­
suant to Mr. Brown’s request, he agreed to defer signing the 
transcripts until the motions had been acted on. That same 
day, Mr. Harris wrote to Mr. Brown in reference to their 
telephone conversation of the preceding Friday, noting that 
because he did not have copies of the transcripts he could



25

not consent to the requested corrections without reviewing 
the testimony.

On Friday, June 16, the judge stated in court that the 
transcripts had been available in his office for one week, 
since the preceding Friday, for examination, but since it 
appeared that Mr. Harris had not examined them, the 
motions to correct the record would not be acted on until 
Mr. Harris indicated his agreement or disagreement with 
the changes requested. In order to facilitate Mr. Harris’ 
examination of the transcripts, Mr. Brown lent him the 
petitioners’ duplicate copies, which Mr. Harris had in his 
possession from 1:20 p.m., June 16, until 6:30 p.m., June 
19, at which time they were returned to Mr. Brown. Upon 
returning the transcripts, Mr. Harris stated that he had no 
objections to any of the corrections requested by the peti­
tioners or to the entry of orders granting the motions to 
correct the transcripts. Mr. Harris then signed the proposed 
orders granting the motions which Mr. Brown had prepared. 
The proposed orders were submitted to the trial judge on 
June 20, who thereupon entered them, and after the neces­
sary corrections were made, signed the transcripts on that 
date.

On the basis of the foregoing facts and relevant decisions 
of the Supreme Court of Appeals of Virginia, it is clear that 
petitioners fully complied with Rule 5:1, Sec. 3(f). That 
court has repeatedly held that the rule is complied with 
when, as here, opposing counsel has actual notice of the 
tender of the transcript to the trial judge and has a reasona­
ble opportunity to examine the transcript for accuracy 
before it is authenticated by the judge. See, Bacigalupo v. 
Fleming, 199 Va. 827, 102 S.E.2d 321, 326; Hyson v. 
Dodge, 198 Va. 792, 96 S.E.2d 792, 798-799; Kornegay v. 
City o f Richmond, 185 Va. 1013, 41 S.E.2d 45, 48-49. In 
construing the rule, the Virginia court follows the practice 
of considering the facts and circumstances of each case, and 
on numerous occasions has overruled objections to appeals 
where, as here, it appears that the purpose of the rule has



26

been satisfied and the appellee has not shown that he was 
“in any way prejudiced” by the procedure followed. Stokely 
v. Owens, 189 Va. 248, 52 S.E.2d 164, 167.22 The Baciga- 
lupo case, supra, involved circumstances almost identical to 
those presented here, and illustrates the liberal construction 
customarily placed by the Virginia court on the rule in 
question. There the trial judge, after ruling that the prior 
notice to opposing counsel of tender had not met the 
requirement of reasonableness, advised the parties that he 
would defer signing the transcript for seven days to afford 
counsel opportunity to examine the transcript and indicate 
his objections, if any. In holding that this procedure com­
plied with Rule 5:1, Sec. 3(f), the Supreme Court of Appeals 
stated (102 S.E.2d at 326):

The requirement that opposing counsel have a rea­
sonable opportunity to examine the transcript sets 
out the purpose of reasonable notice. If, after receipt 
of notice, opposing counsel be afforded reasonable 
opportunity to examine the transcript, and to make 
objections thereto, if any he has, before it is signed 
by the trial judge, the object of reasonable notice 
will have been attained.

It is thus clear that even if insufficient advance notice 
was given to respondents’ counsel, Mr. Harris, of the tender 
of the transcripts to the judge, this deficiency was cured by 
the ample opportunity that Mr. Harris had after the tender 
to examine the transcripts and the motions to correct the 
transcripts, and to make any objections thereto. Further, 
Mr. Harris’ signing of the proposed orders granting the 
motions to correct the transcripts reflect the fact that he 
had examined the transcripts and the proposed corrections, 
and “waived” any further objections that he had to the 
procedure being followed. Kornegay v. City o f Richmond,

22See also, Cook v. Virginia Holsom Bakeries, Inc., 207 Va. 815,153 
S.E.2d 209, 210; Grimes v. Crouch, 175 Va. 126, 7 S.E.2d 115, 116- 
117; Town o f Falls Church v. Myers, 187 Va. 110, 46 S.E.2d 31, 
34-35; Taylor v. Wood, 201 Va. 615, 112 S.E.2d 907, 910.



27

supra; Grimes v. Crouch, supra; Taylor v. Wood, supra. 
Although the state court, in the opinion it cites as the basis 
for rejecting the appeals, characterized the rule in question 
as “jurisdictional” (Snead v. Commonwealth, 200 Va. 850, 
108 S.E.2d 399, 402), it is clear from the Bacigalupo deci­
sion and other cases cited above, that the court exercises 
considerable discretion in determining whether it has been 
complied with. The state court thus not only ignored its 
own precedents in reaching the result it did here, but under 
the mode of practice that it allows, could have exercised its 
discretion to hear the appeals. That court’s “discretionary 
decision” to deny the appeals did “not deprive this Court 
of jurisdiction to find that the substantive issue[s]” were 
properly before it. Williams v. Georgia, 349 U.S. 375, 389; 
Shuttlesworth v. City o f Birmingham, 376 U.S. 339. See 
also, Ward v. Board o f County Commissioners, 253 U.S. 17, 
22; and cases cited supra, p. 5, n. 3.

CONCLUSION

For the foregoing reasons, the Court should grant this 
petition for a writ of certiorari and decide the case on the 
merits. In the event that the Court holds for the petitioners, 
it would appear that another remand to the Supreme Court 
of Appeals of Virginia would be futile, in view of that 
court’s insistence that it does not have jurisdiction over the 
proceeding. Therefore, petitioners respectfully suggest that 
the Court may wish to treat this petition as a petition for a 
writ of certiorari to the Circuit Court of Fairfax County, 
Virginia, where the cases were tried. See Callender v. Florida, 
383 U.S. 270, 380 U.S. 519. Cf. Naim v. Naim, 350 U.S. 
985. Alternatively, the Court could formulate an order 
reversing the judgments of the courts below, and directing



28

the Circuit Court to enter an appropriate decree, including 
provision for such damages as that court may fix. See 
Stanley v. Schwalby, 162 U.S. 255, 279-283; 28 U.S.C. 
§ 2106; 28 U.S.C. § 1651(a).25

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 

January 1969.

25“The power to enter judgment and, when necessary, to enforce 
it by appropriate process, has been said to be inherent in the Court’s 
appellate jurisdiction.” Fay v. Noia, 372 U.S. 391, 467 (dissenting 
opinion of Justice Harlan). See Williams v. Bruffy, 12 Otto 248, 255- 
256; Tyler v. Magwire, supra, 17 Wall, at 289-293; Martin v. Hunter’s 
Lessee, supra, 1 Wheat, at 361 \ McCulloch v. Maryland, 4 Wheat. 316, 
437; Gibbons v. Ogden, 9 Wheat. 1, 239; Kreshik v. St. Nicholas 
Cathedral, 63 U.S. 190, 191.



29

APPENDIX A

STATUTES

42 U.S.C. Section 1981. Equal rights under the law
All persons within the jurisdiction of the United States 

shall have the same right in every State and Territory to 
make and enforce contracts, to sue, be parties, give evidence, 
and to the full and equal benefit of all laws and proceedings 
for the security of persons and property as is enjoyed by 
white citizens, and shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions of every kind, and 
to no other. R.S. § 1977.

42 U.S.C. Section 1982. Property rights of citizens
All citizens of the United States shall have the same right, 

in every State and Territory, as is enjoyed by white citizens 
thereof to inherit, purchase, lease, sell, hold, and convey 
real and personal property. R.S. § 1978.

CONSTITUTION OF THE UNITED STATES

Article VI
* * *

This Constitution, and the laws of the United States 
which shall be made in pursuance thereof; and all treaties 
made, or which shall be made, under the authority of the 
United States, shall be the supreme law of the land; and the 
judges in every State shall be bound thereby, anything in 
the Constitution of laws of any State to the contrary not­
withstanding.

* * *

Amendments

Article I
Congress shall make no law respecting an establishment 

of religion, or prohibiting the free exercise thereof; or



30

abridging the freedom of speech, or of the press; or the right 
of people peaceably to assemble, and to petition the Govern­
ment for a redress of grievances.

*  *  *

Article XIII
Section 1. Neither slavery nor involuntary servitude, 

except as a punishment for crime whereof the party shall 
have been duly convicted, shall exist within the United 
States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this 
article by appropriate legislation.

*  *  *

Article XIV
Section 1. All persons born or naturalized in the United 

States, and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United States, 
nor shall any State deprive any person of life, liberty, or 
property, without due process of law; nor deny to any 
person within its jurisdiction the equal protection of the 
laws.

* * *

RULES OF THE SUPREME COURT OF APPEALS 
OF VIRGINIA

Rule 5:1. The Record on Appeal 
Sec. 3. Contents of Record

* * *

(f) Such a transcript or statement not signed by counsel 
for all parties becomes part of the record when delivered to 
the clerk, if it is tendered to the judge within 60 days and 
signed at the end by him within 70 days after final judgment.



31

It shall be forthwith delivered to the clerk who shall certify 
on it the date he receives it. Counsel tendering the transcript 
or statement shall give opposing counsel reasonable written 
notice of the time and place of tendering it and a reasona­
ble opportunity to examine the original or a true copy of 
it. The signature of the judge, without more, will be deemed 
to be his certification that counsel had the required notice 
and opportunity, and that the transcript or statement is 
authentic. He shall note on it the date it was tendered to 
him and the date it was signed by him.

* * *



32

APPENDIX B

SUPREME COURT OF THE UNITED STATES 
O c t o b e r  T e r m , 1967.

SULLIVAN e t  a l . v. LITTLE HUNTING PARK,
INC., ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 
COURT OF APPEALS OF VIRGINIA.

No. 1188. Decided June 17, 1968.

P er  C u r i a m .

The petition for a writ of certiorari is granted and the 
judgment is vacated. The case is remanded to the Supreme 
Court of Appeals of Virginia for further consideration in 
light of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 
decided this date.

Mr. Justice Harlan and Mr. Justice White dissent for the 
reasons stated in Mr. Justice Harlan’s dissenting opinion in 
Jones v. James H. Mayer Co., 392 U.S. 409, 449, decided this 
date.



33

SUPREME COURT OF APPEALS 
OF VIRGINIA

Present: All the Justices
PAUL E. SULLIVAN, ET AL.

-v- Record No. R-8257
LITTLE HUNTING PARK, INC.,
ET AL.

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

-v- Record No. R-8176
LITTLE HUNTING PARK, INC.,
ET AL.

On August 4, 1967, a petition for appeal was filed in this 
court by Paul E. Sullivan, his wife, and their seven minor 
children. On August 25, 1967, a petition for appeal was 
filed by T. R. Freeman, Jr., his wife, and their two minor 
children. The petitions sought the reversal of decrees of the 
Circuit Court of Fairfax County in two chancery causes 
wherein the Sullivans and the Freemans had filed individual 
bills of complaint against Little Hunting Park, Inc., a Virginia 
corporation chartered to operate a community swimming 
pool, and the directors thereof. The petitions asserted that 
by their bills, the complainants had sought injunctive relief 
and monetary damages for the allegedly wrongful acts of 
the defendants in refusing to approve the assignment by 
Sullivan of his membership share in the corporation to 
Freeman, a member of the Negro race, and in expelling 
Sullivan from membership in the corporation.

On December 4, 1967, this court rejected the said peti­
tions and refused the said appeals because, in the words of 
the order entered in each case, “ the appeal was not perfected 
in the manner provided by law in that opposing counsel was 
not given reasonable written notice of the time and place of

PER CURIAM 
Richmond, Virginia 
October 14, 1968



34

tendering the transcript and a reasonable opportunity to 
examine the original or a true copy of it (Rule 5:1 § 3(f); 
Snead v. Commonwealth, 200 Va. 850, 108 S.E.2d 399).”

On October 5, 1968, the clerk of this court received from 
the Supreme Court of the United States a copy of an order 
dated October 4, 1968, entered in the consolidated Sullivan 
and Freeman cases, amending an order entered June 17, 
1968, and reciting that in the earlier order it was ordered 
and adjudged “that the judgments of the said Supreme 
Court of Appeals in these causes be vacated with costs, and 
that these causes be remanded to the Supreme Court of 
Appeals of the Commonwealth of Virginia for further con­
sideration not inconsistent with the opinion of this Court.”

The opinion of the Supreme Court referred to in its order 
of June 17, 1968, was as follows:

“The petition for a writ of certiorari is granted 
and the judgment is vacated. The case is remanded 
to the Supreme Court of Appeals of Virginia for 
further consideration in light of Jones v. Alfred H. 
Mayer Co., U.S. , No. 645, decided this 
date.”

The case of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 
88 S. Ct. 2186, 20 L. ed. 2d 1 189 (1968), referred to in 
the opinion of the Supreme Court, dealt not with the ques­
tion of the application by a state appellate court of its rules 
of procedure in determining its jurisdiction to entertain an 
appeal. Instead, the Jones case dealt with the question of 
the refusal of the Mayer company to sell Mr. and Mrs. Jones 
a home because Mr. Jones was a Negro. By applying an 
1866 act of Congress, 42 U.S.C. § 1982, the Court found 
such refusal discriminatory and illegal.

In Snead v. Commonwealth, 200 Va. 850, 108 S.E.2d 
399, referred to in the orders of this court refusing the 
appeals in these cases, we held the terms of Rule 5:1, § 3(f) 
to be mandatory and jurisdictional, and for the failure of 
counsel for Snead to meet the requirements of the Rule, 
the writ of error and supersedeas was dismissed.



35

Our orders of December 4, 1967, refusing the appeals in 
these cases, were adjudications that this court had no juris­
diction to entertain the appeals because of the failure of 
counsel for the Sullivans and the Freemans to meet the 
requirements of Rule 5:1, § 3(f)- Only this court may say 
when it does and when it does not have jurisdiction under 
its Rules. We had no jurisdiction in the cases when they 
were here before, and we have no jurisdiction now. We 
adhere to our orders refusing the appeals in these cases.



36

ApPFNDlX-C-—

VIR GIN I  A '

In the Supreme Court o f Appeals held at the Supreme Court of 
Appeals Building in the City o f Richmond on Monday the 4th day 
of December, 1967.

The petition of Paul E. Sullivan, Flora L. Sullivan, and 
William F. Sullivan, Graciela P. Sullivan, Ana I. Sullivan, 
Maire Sullivan, M. Dolores Sullivan, M. Monica Sullivan and 
Brigid Sullivan, infants, who sue by Paul E. Suilivan, their 
father and next friend, for an appeal from a decree entered 
by the Circuit Court of Fairfax County on the 12th day of 
April, 1967, in a certain chancery cause then therein depend­
ing, wherein the said petitioners were plaintiffs and Tittle 
Hunting Park, Inc., and others.were defendants, having been 
maturely considered and a transcript of the record of the 
decree aforesaid seen and inspected, the court being of opin­
ion that the appeal was not perfected in the manner provided 
by law in that opposing counsel was not given reasonable 
written notice of the time and place of tendering the tran­
script and a reasonable opportunity to examine the original 
or a true copy of it (Rule 5:1, § 3(f); Snead v. Common­
wealth, 200 Va. 850, 108 S.E. 2d 399), doth reject said pe­
tition and refuse said appeal.

A Copy, 
Teste:

Clerk



37

■APPENBiX-fr-

VIRGINIA:

In the Supreme Court o f Appeals held at the Supreme Court of 
Appeals Building in the City o f Richmond on Monday the 4th day 
of December, 1967.

The petition of T. R. Freeman. Jr., Laura Freeman, and 
Dale C. Freeman and Dwayne L. Freeman, infants, who sue 
by T. R. Freeman, Jr., their father and next friend, for an 
appeal from a decree entered by the Circuit Court of Fair­
fax County on the 8th day of May, 1967, in a certain 
chancery cause then therein depending, wherein the said 
petitioners were plaintiffs and Little Hunting Park, Inc., 
and others were defendants, having been maturely conside- 
ered and a transcript of the record of the decree aforesaid 
seen and inspected, the court being of opinion that the ap­
peal was not perfected in the manner provided by law in 
that opposing counsel was not given reasonable written no­
tice of the time and place of tendering the transcript and a 
reasonable opportunity to examine the original or a true 
copy of it (Rule 5:1 § 3(f); Snead v. Commonwealth, 200 
Va. 850, 108 S.E. 2d 399), doth reject said petition and 
refuse said appeal.

A Copy, 
Teste:

Clerk



38

a p p e n d e d

SIXTEENTH JUDICIAL CIRCUIT OF VIRGINIA
PRINCE WILLIAM COUNTY FAIRFAX COUNTY ALEXANDRIA CITY

Fairfax County Courthouse, 
Fairfax, Virginia, 22030,
April 7, 1967.

Mr. Robert M. Alexander,
1829 Columbia Pike,
Arlington, Virginia. 22204
Mr. John C. Harris,
1500 Belle View Boulevard,
Alexandria, Virginia.

Re: Sullivan v. Little Hunting Creek Park;
In Chancery No. 22751.

Gentlemen:
I find for the defendants in this case. It is my opinion 

that the expulsion of Mr. Sullivan should be upheld. The 
defendant Club may be a community recreation facility, but 
it is not a trade organization. It is private and social as is 
shown not only by its charter and By-Laws but also by its 
minutes, which regularly include a recital of "social activi­
ties " The requirement of approval of membership appli­
cations by the Beard of D mentors. even though the prospect 
might meet all other qualifications, would seem to be 
conclusive or. this point. This being so. the Court's power 
to review the action of the Board of Directors is limited. I 
find no reason to set it aside. The Board acted within the 
powers conferred on it b> the Bv-Lavvs, and there was am­
ple evidence to  justify its conclusion that the complainant's 
acts ueece m am cm bk to  the Corporation's members and to  
the Corporation,



39

I do not believe property rights are involved in this case 
to any material extent. The number of memberships is in­
consequential when considered with the number of homes 
in the residential areas mentioned in the By-Laws. The 
further fact there are such a large number of memberships 
available for sale with no buyers that the Directors consid­
ered the advisability of buying them in would appear to be 
a conclusive answer to this argument.

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

Mr. Harris can prepare a decree in accord with the fore­
going and submit it to Mr. Alexander for his endorsement 
and exceptions.

Very truly yours,

James Keith.
JK:elc 

Copy to:
Mr. Allison W. Brown, Jr.,
Suite 501, 1424 16th Street, N. V/.,
Washington, D. C. 20036

t  t  t



40

V I R G I N I A :
IN THE CIRCUIT COURT OF FAIRFAX COUNTY

PAUL E. SULLIVAN, et al„

Plaintiffs,
. v. IN CHANCERY NO. 22751

LITTLE HUNTING PARK, INC., et al„

Defendants.

DECREE

This matter came on to be heard this 22d day of March, 
1967, upon the bill of complaint, the answer of the defend­
ants, upon the taking of evidence, upon argument of counsel, 
upon due consideration of the memoranda of law submitted 
by counsel, and the Court’s specific finding that the defend­
ant, LITTLE HUNTING PARK, INC., is a private and social 
club whose by-laws require approval of the Board of Direc­
tors for membership, and there was ample evidence to justify 
a finding that the complainant’s acts were inimicable to the 
corporation’s members and to the corporation and the Board 
of Directors of the defendant corporation acted within the 
powers conferred upon it by the by-laws of the corporation, 
it is therefore,

DECREED that the relief requested by the complainant 
be denied, to which ruling counsel for complainants except.

THIS DECREE IS FINAL.
ENTERED this 12th day of April, 1967.

James Keith 
Judge

Entered in Chancery Order 
Book No. 120, page 318



41

SEEN:
John Chas. Harris 
Counsel for Defendants

SEEN AND EXCEPTED:
Robert M. Alexander 
Allison W. Brown, Jr.
Peter Ames Eveleth
By Robert M. Alexander 

Counsel for Complainants



42

•'APPEN©effl-~

SIXTEENTH JUDICIAL CIRCUIT OF VIRGINIA
PRINCE WILLIAM COUNTY FAIRFAX COUNTY ALEXANDRIA CITY

Fairfax County Courthouse, 
Fairfax, Virginia, 22030,
April 21, 1967.

Mr. Robert M. Alexander,
1829 Columbia Pike,
Arlington, Virginia.
Mr. John C. Harris,
1500 Belle View Boulevard,
Alexandria, Virginia.

Re: Freeman v. Little Hunting Park, Inc.;
In Chancery No. 22752.

Gentlemen:
It is my opinion that the conclusion formerly reached in 

this matter that the defendant corporation is a private social 
club is controlling in this case. No constitutional right of 
the plaintiff has been violated. He does not come within 
the protection of the Civil Rights Act. The charter and by­
laws of the corporation constitute a contract between the 
corporation and the members and between the members 
themselves. Under the by-laws, transfers and assignments 
are subject to the approval of the Board of Directors. All 
parties were aware of this fact. Section 13-105 of the 1950 
Code of Virginia, relied on by the complainant, has been 
repealed. The refusal to approve the assignment to complain­
ant appears to be consistent with the law and with the arti­
cles of incorporation. Therefore the relief prayed for will 
be denied.



43

Mr. Harris can prepare a decree in accordance 'with the 
foregoing and submit it to Mr. Alexander for his endorsement. 
I am sending a copy of this letter to Mr. Brown.

Very truly yours,

JK:elc
James Keith.

Copy to Mr. Allison W. Brown, Jr.

t  t  t

V I R G I N I A :
IN THE CIRCUIT COURT OF FAIRFAX COUNTY

T. R. FREEMAN, JR., ct a!.,

Plaintiffs,
v. IN CHANCERY NO. 22752

LITTLE HUNTING PARK, INC., et a l.

Defendants. - •

DECREE

THIS cause came to be heard this i 2th day of April, 1967 
upon the bill of complaint, the answer of the defendants, 
upon the taking of evidence, upon argument by counsel, 
upon due consideration of the memoranda of law submitted 
by counsel, and the courts specific finding that the defend­
ant, LITTLE HUNTING PARK, INC., is a private, social 
club whose by-laws require approval of the board of direc­
tors for transfers and assignments of membership; that no 
constitutional right of the complainants have been violated 
and they do not come within the protection of the Civil 
Rights Act, it, is, therefore,



44

ADJUDGED, ORDERED and DECREED that the relief 
requested by the complainants be denied, to which ruling 
counsel for_complainants except.

THIS DECREE IS FINAL.
Entered this Sih day of May, 1967.

James Keith 
Judge

SEEN:
John Chas. Harris 
Counsel for Defendants

SEEN AND EXCEPTED:
Robert M. Alexander 
Allison \Y. Brown, Jr.
Peter Ames Eveleth
By Robert M. Alexander 

Counsel for Complainants