Sullivan v. Little Hunting Park Petition for Writ of Certiorari

    In the

SUPREME COURT OF THE UNITED STATES
October Term, 1967

No

PAUL E. SULLIVAN, ET AL., Petitioners 
v.

LITTLE HUNTING PARK, INC., ET AL.

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

LITTLE HUNTING PARK, INC., ET 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.
Washington, D. C. 20003
Robert M. Alexander 

Jack Greenberg 1829 Columbia Pike
James M. Nabrit, III Arlington, Virginia 22204 
10 Columbus Circle , , _ . .
New York, N. Y. 10019 ^ to m e y s  for Petitioners

Of Counsel
Washington, D. C. • T H IE L  P R ESS  202 393 0625



INDEX

Opinions Below .......................................................................................... 2

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

Questions Presented ............................................................................... 2

Constitutional p rov ision s.........................................................................  3

Statement .....................................................................................................  3

A. Little Hunting Park, In c.-its purpose and manner of
operation ..................................................   3

B. The corporation’s directors refuse to approve the as­
signment of Paul E. Sullivan’s share because the as­
signee, T. R. Freeman, Jr. and his family, are Negroes . 5

C. The corporation’s directors expel Paul E. Sullivan be­
cause o f his criticism of their refusal to approve the 
assignment o f his share to Dr. T. R. Freeman, Jr. on
the basis o f r a c e .........................................................................  7

D. Relief s o u g h t ............................................................................... 9

E. The proceedings b elow ................................................................ 9

Reasons for Granting the Writ ................................................................  10

Conclusion..................................................................................................... 24

CITATIONS
Cases:

Bacigalupo v. Fleming, 199 Va. 827, 102 S.E.2d 321 .................  23

Barrows v. Jackson, 346 U.S. 249 ..........................................  16, 17, 20

Bell v. Maryland, 378 U.S. 226 ........................................................  16, 17

Buchanan v. Warley, 245 U.S. 60 .......................................................  16

Clifton v. Puente, 218 S.W.2d 272 (Tex. Civ. A p p .) ....................... 18

Cook v. Virginia Holsum Bakeries, Inc., 207 Va. 815,
153 S.E.2d 209 ....................................................................................  23

Crossen v. Duffy, 90 Ohio App. 252, 103 N.E.2d 769 .................  18

Curtis Publishing Co. v. Butts, 388 U.S. 130 ............ 10, 11, 19, 20



Evans v. Newton, 382 U.S. 296 ........................................ 11, 12, 13, 14

Gallagher v. American Legion, 154 Misc. 281,
277 N.Y.S. 81, a ffd , 242 App. Div. 604,
271 N.Y.S. 1012 ...............................................................................  19

Hurwitz v. Directors Guild o f America, 364 F.2d 67
(C.A. 2), cert, denied, 385 U.S. 971 .............................................  19

Hyson v. Dodge, 198 Va. 792, 96 S.E.2d 792 ..................................  23

Jones v. Alfred H. Mayer Co., No. 645, October Term,
certiorari granted, December 4, 1967 ......................... ..  10, 11

Kornegay v. City of Richmond, 185 Va. 1013,
41 S.E.2d 45 . . .............. .............................. .................................... ..  23

Lauderbaugh v. Williams, 409 Pa. 351, 186 A.2d 3 9 ....................... 17

Lombard v. Louisiana, 373 U.S. 267 ...................................................  13

Madden v. Atkins, 4 N.Y.2d 283, 151 N.E.2d 73 ......................  19

Marsh v. Alabama, 326 U.S. 501 ..........................................  12, 13, 18

Meyers v. Lux, 76 S.D. 182, 75 N.W.2d 533 .................................. 12

Mitchell v. International Ass’n of Machinists,
196 Cal. App. 2d 796, 16 Cal. Rptr. 813 ............................  18-19

Morris v. Hussong Dyeing Machine Co., 81 N.J. Eq. 256,
86 Atl. 1026 .................................................................................... .. . 12

Mountain Springs Ass’n v. Wilson, 81 N.J. Super. 564,
196 A.2d 270 .............................................................................. ..  17

N.A.A.C.P. v. Alabama, 357 U.S. 449 . ........................................... 21

N.A.A.C.P. v. Alabama, 377 U.S. 288 ................ .. ......................  21

New York Times Co. v. Sullivan, 376 U.S. 254   20

Parrot v. City o f Tallahassee, 381 U.S. 1 2 9 .......................................... 21

Public Utilities Comm’n v. Pollack, 343 U.S. 451 ....................... 13

Reitman v. Mulkey, 387 U.S. 369 ...............................  13, 14, 16, 20

Rice v. Sioux City Memorial Cemetery, 349 U.S. 70 .................  18

Shelley v. Kraemer, 334 U.S. 1 ........................................................  16, 17

Shuttlesworth v. City of Birmingham, 376 U.S. 339 ......................  24

Simkins v. Moses H. Cone Memorial Hospital,
323 F.2d 959 (C.A. 4), cert, denied, 376 U.S. 938 .................  13



Spencer v. Flint Memorial Park Ass’n, 4 Mich. App. 157,
144 N.W.2d 622 ..................................................... .. ......................  17-18

Staub v. City o f Baxley, 355 U.S. 313 .............................................  21

Tate v. Department o f Conservation and Development,
133 F. Supp. 53 (E.D. Va.), a ffd , 231 F.2d 615
(C.A. 4), cert, denied, 352 U.S. 838 .............................................  14

Terry v. Adams, 345 U.S. 461 ..............................................................  13

Tuckerton Beach Club v. Bender, 91 N.J. Super. 167,
219 A.2d 529 .........................................................................................  17

Williams v. Georgia, 349 U.S. 375 ........................................................  24

Wood v. Vaughan, 209 F. Supp. 106 (W.D. Va.),
a ffd , 321 F.2d 474 (C.A. 4) ........................................................  14

Constitutional and Statutory Provisions:

First Amendment to the Constitution ......................  3, 10, 18, 20

Fourteenth Amendment to the Constitution . . .  2, 3, 9 , 10, 11, 20

28 U.S.C. Sec. 1257(3) .........................................................................  2

42 U.S.C. Sec. 1982 ......................................................................... 10-11

Code o f Virginia, 1950 (1949 ed.), Sec. 13-220 ............................  3

Code o f Virginia, 1950 (1964 Replace. Vol),
Sec. 1 3 .1 -2 1 1 .......................................................................................... 12

Code of Virginia, 1950 (1964 Replace. Vol),
Sec. 13.1-231 ( d ) ....................................................................................  12

Rules o f the Supreme Court o f Appeals o f Virginia,
Rule 5:1, Sec. 3(f), 2 Code o f Virginia, 1950
(1957 Replace. Vol.) 602 .............................................  20-21, 22, 23

Miscellaneous:

Evening Star (January 20, 1967) ..........................................................  15

Practical Builder, Vol. 29, No. 2 (February 1964) ....................... 15

Urban Land Institute, Open Space Communities in
the Market Place (Tech. Bulletin 57, 1 9 6 6 ) .................................. 15

Washington Post (June 12, 1967) ......................................................... 14



In the

SUPREME COURT OF THE UNITED STATES
October Term, 1967

No.

PAUL E. SULLIVAN, ET AL., Petitioners

LITTLE HUNTING PARK, INC., ET AL.

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

LITTLE HUNTING PARK, INC., ET 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 
orders of the Supreme Court of Appeals of Virginia entered 
on December 4, 1967 in 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. Petitioners in 
the Freeman case, in addition to T. R. Freeman, Jr., are Laura Free­
man, 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 addition 
to Little Hunting Park, Inc., are Mrs. Virginia Moore, Ronald L. Arnette, 
S. Leroy Lennon, Raymond R. Riesgo, Mrs. Marjorie Madsen, William J. 
Donohoe, Oskar W. Egger, and Milton W. Johnson, individuals who 
were directors o f said corporation at times material herein.



2

The memorandum orders of the Supreme Court of Appeals 
of Virginia (App. A and B, infra, pp. A-l-B-1) are not re­
ported. The decision of the trial court in the Sullivan case 
was contained in a letter to the parties dated April 7, 1967 
(App. C, infra, pp. C-l-C-3), and is reported at 12 Race Rel.
L. Rep. 1008; the decree was entered April 12, 1967. The 
trial court’s decision in the Freeman case was contained in 
a letter dated April 21, 1967 (App. D, infra, pp. D-l-D-3), 
which is not reported; the decree was entered May 8, 1967.

JURISDICTION

The orders of the Virginia Supreme Court of Appeals were 
entered on December 4, 1967. The jurisdiction of this Court 
is invoked under 28 U.S.C. Sec. 1257 (3).

QUESTIONS PRESENTED

A Virginia corporation organized for the purpose of oper­
ating a community park and swimming pool permits a share­
holder to assign his share to an eligible person—one who 
resides within a specified geographic area—subject to approval 
by the board of directors. A shareholder, upon renting his 
house, assigned his share to his tenant, but the board of 
directors refused to approve the assignment solely because 
the assignee was a Negro. When the shareholder protested 
the directors’ discriminatory racial policy and sought to 
reverse their refusal to approve the assignment, the directors 
expelled him. The questions presented are:

1. Does it violate the Fourteenth Amendment to the 
Constitution of the United States for a corporation which 
operates a community park and swimming pool to refuse to 
permit a person who is otherwise eligible, to use its facilities 
solely on the basis of race?

2. Did the state court violate the Fourteenth Amendment 
by giving validity to the racial restriction on the use of the

OPINIONS BELOW



3

community park and swimming pool operated by the corpo­
ration?

3. Were the free speech protections of the First and 
Fourteenth Amendments to the Constitution of the United 
States violated by the corporation’s expelling a shareholder 
who dissented from its racial policies, and by the state 
court’s sanctioning the expulsion?

CONSTITUTIONAL PROVISIONS

The provisions of the Constitution of the United States 
involved are the First Amendment and Section 1 of the 
Fourteenth Amendment. They are printed in Appendix E, 
infra, p. E-l.

STATEMENT

A. Little Hunting Park, Inc.-its purpose and manner 
o f operation.

Little Hunting Park, Inc. was incorporated in 1954 under 
the Virginia Non-Stock Corporation Law2 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)/ 
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 the 
subdivisions known as Bucknell Manor, Beacon Manor, White 
Oaks, Bucknell Heights and certain adjacent neighborhoods 
in Fairfax County, Virginia (T. 186, 228). The corpora­
tion’s by-laws provide that shares may be purchased by adult 
persons who “reside in, or who own, or who have owned 
housing units” in one of the specified subdivisions (T. 186).

2Section 13-220, Code o f Virginia, 1950 (1949 ed.).
■*“T.” refers to the transcript in the Sullivan case. “F.T.” refers to 

the Freeman transcript.



4

A share entitles all persons and dependents in the immediate 
family of the shareholder to use the corporation’s recreation 
facilities (T. 186-187).

The by-laws limit the numbers of shares in the corporation 
to 600 (T. 186). There is no limitation, however, on the 
number of shares that an individual may own, and it is not 
unusual for a person owning more than one house in the 
area 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 neighborhood where 
the swimming pool is located. Thus, a share is currently 
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 consider­
ation 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 assignment of a 
share. However, an assignment may only be made from 
landlord to tenant. (T. 187, 200)4

The corporation’s by-laws have always provided that the 
issuance and assignment of shares are subject to the approval

^Regardless o f whether the swimming pool and park facilities are 
utilized by the shareholder or assignee, the owner o f  a share is obli­
gated to pay an annual assessment in order to keep it valid. (T. 9-10, 
199-200).



5

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 corpora­
tion’s existence (T. 192-193, 196-197). However, with the 
exception of the assignment to Freeman, there is no record 
of any assignment every being denied approval by the direc­
tors (T. 199). One applicant for the purchase of a share 
was disapproved during that period, but there is no evidence 
that this was other than because of the individual’s failure 
to satisfy the geographic residence requirement of the by­
laws (T. 198-199).

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

From about December 1950 to March 1962, Paul E. Sulli­
van 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 Sulli­
van by the corporation (T. 8-9, 66-67). After moving to 
Coventry Road, Sullivan continued paying the annual assess­
ments on shares Nos. 290 and 925, and leased his house on 
Quander Road to various tenants. In consideration of the 
rent, he assigned share No. 290 as part of the leasehold in­
terest (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.



6

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 Hunt­
ing 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 
eligibility requirements for an assignee of a share in the 
corporation, since he is an adult, and the house that he leased 
from Sullivan is in Bucknell Manor subdivision (T. 204-205). 
Freeman has no other disqualifications: he is an agricultural 
economist with a Ph.D. degree from the University of Wis­
consin, 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 mem­
bers of the Negro race (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). Additionally, Dr. 
Freeman supplied certain information and signed the form, 
thereby doing everything required by the corporation to 
qualify as an assignee of the share (T. 12). However, 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. Len­
non, the corporation’s membership chairman, notifying him 
that his assignment of share No. 290 to Dr. Freeman had 
been denied approval by the board of directors; no reason 
was given (T. 13).



7

C. The corporation’s directors expel Paul E. Sullivan 
because o f his criticism o f their refusal to approve 
the assignment o f his share to Dr. T. R. Freeman,
Jr. on the basis o f 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 inquiry, 
a delegation from the board—membership chairman S. L. 
Lennon, former president and director of the corporation, 
John R. Hanley, and director Oskar W. Egger—visited Mr. 
and Mrs. Sullivan at their home on May 28, 1965, and ad­
mitted 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 neighbor­
hood for many years and as a member of Little Hunting 
Park, Inc. since its inception, he could not believe their as­
sertion that the board’s action reflected the unanimous 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 contracted to as­
sign to Dr. Freeman (T. 18-19).

Following this meeting, Sullivan and Dr. Freeman, who 
was also his fellow parishioner, sought the advice of then- 
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 iis 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



8

to be “due cause” for Sullivan’s expulsion from the corpo­
ration because of his “non-acceptance of the Board’s deci­
sion” on the assignment of his share “along with the con­
tinued harassment of the board members, etc.” (T. 29-31, 
204, 220).5

Sullivan was told of the board’s action in a letter from 
President Moore dated July 7, 1965, which also informed 
him that he would be given a “hearing” by the directors on 
July 20, 1965 (T. 29-31,206). Because the directors refused 
to postpone the hearing in order that Sullivan’s attorney 
could appear with him, 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 iden­
tity of the persons making charges against him, nor to ques­
tion 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 
Sullivan (T. 228). By letter of August 27, 1965, Sullivan 
was notified by President Moore of his expulsion, and he

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).



9

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).

D. Relief sought

Petitioners seek an order declaring invalid the racial restric­
tion imposed by respondents on the use of the community 
park and swimming pool operated by Little Hunting Park, 
Inc. Petitioners in the Sullivan case also seek an order com­
pelling full reinstatement of Paul E. Sullivan in Little Hunt­
ing Park, Inc. and reinstatement of shares Nos. 290 and 925. 
Finally, monetary damages are sought by petitioners in both 
proceedings; by the Freemans for respondents’ interference 
with Dr. Freeman’s contract with Paul E. Sullivan and for 
depriving Dr. Freeman and his family of the full use and 
enjoyment of the leasehold estate demised to him by Sulli­
van; and by the Sullivans for Paul Sullivan’s wrongful expul­
sion from the association.6

E. The proceedings below

Petitioners raised the federal questions sought to be 
reviewed here by alleging in their complaints that, for the 
trial court to recognize as valid the racial restriction imposed 
by the corporation on use of its facilities, would be violative 
of the rights of petitioners “under the Due Process and Equal 
Protection clauses of the Fourteenth Amendment to the 
Federal Constitution . . .” Petitioner T. R. Freeman, Jr., in 
successfully opposing a demurrer in the lower court, argued 
further in a memorandum to the court (pp. 22-23) that, by 
its operation of a community recreation facility, Little Hunt­

6In June 1967, Dr. Freeman and the members o f his family left 
the United States, and they currently reside in Pakistan where Dr. 
Freeman is Assistant Agricultural Attache in the United States Embassy. 
Hence, injunctive relief, as sought in the court below to compel approval 
o f the assignment o f share No. 290 to Dr. Freeman, is no longer ap­
propriate.



10

ing Park, Inc. exercises a public function which brings its 
activities within the purview of the Fourteenth Amendment. 
Petitioner Paul E. Sullivan contended at the trial that he had 
been expelled from the corporation for exercise of his con­
stitutionally protected right of free speech (T. 244-245). 
Petitioners reasserted these positions in their petitions for 
appeal to the Virginia Supreme Court of Appeals and, in 
addition, Sullivan contended on the basis of Curtis Publish­
ing Co. v. Butts, 388 U.S. 130, which had been decided in 
the interim between the trial and the filing of the appeal, 
that 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” (Pet. for Appeal, p. 34).

The trial court, in dismissing both complaints, held that 
the corporation is a “private social club” with authority to 
determine the qualifications of those using its facilities, 
including the right to deny such use on the basis of race. 
The court further held that the corporation’s expulsion of 
Sullivan was permitted by the relevant provision of its by­
laws and was justified by the evidence. The Virginia Supreme 
Court of Appeals rejected the petitions for appeal, thereby 
denying the appeals.

REASONS FOR GRANTING THE WRIT

The principal issue in this case is whether a private corpo­
ration performing a community or public function may con­
duct its affairs on a racially discriminatory basis. This same 
issue is now before the Court in Jones v. Alfred H. Mayer 
Co., No. 645, October Term, 1967 (certiorari granted, De­
cember 4, 1967).7 In Jones a real estate developer con­

7The Jones case also presents the question whether the Civil Rights 
Act o f 1866, 14 Stat. 27, 42 U.S.C. Sec. 1982, prohibits discrimina-



11

structing a subdivision of approximately 100 projected 
homes-here a community recreation corporation serving 
nearly 600 shareholders and their families-pursued a policy 
of racial discrimination which served to deprive Negroes of 
community facilities which were available to white persons. 
In both cases, the corporations offered their facilities with­
out regard to the personal characteristics of prospective 
purchasers, with the single common exception of race. In 
the instant case, of course, the immediate effect of the dis­
crimination is to exclude Negroes from a park “the predomi­
nant character and purpose” of which is “municipal” in 
nature. Evans v. Newton, 382 U.S. 296, 302. However, the 
ultimate effect is more far-reaching than in Evans, for as in 
Jones, the discrimination results in significantly limiting the 
opportunities for Negroes to obtain one of the essential 
amenities of life—decent housing.

1. As the Court held in Evans v. Newton, the “service 
rendered even by a private park” can be of a public or mu­
nicipal character requiring “that it be treated as a public in­
stitution subject to the command of the Fourteenth Amend­
ment . . .” 296 U.S. at 301-302. The evidence in the instant 
case shows that Little hunting rark, Inc. was organized and 
incorporated for the express purpose, as stated in its certifi­
cate of incorporation, of operating “a community park and

tion in the sale or lease of property. Petitioners herein did not seek 
relief on the basis o f that statute, because this Court had not ruled 
on the specific applicability of those provisions to private action. A 
decision by this Court upholding application o f  the 1866 Act to private 
action would be another reason, in addition to those set forth herein, 
for reversing the result reached by the Virginia court in the instant 
proceeding. The failure o f petitioners to rely on the 1866 Act as a 
ground for relief does not preclude it as a basis for disposition o f this 
case, for the “mere failure” to raise a constitutional question “prior 
to the announcement o f a decision which might support it cannot 
prevent a litigant from later invoking such a ground.” Curtis Publish­
ing Co. v. Butts, supra, 388 U.S. at 142-143, and cases cited.



12

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 its stated purpose, the corporation 
never pursued a policy of exclusiveness. Even real estate 
developers and churches in the community were able to 
purchase shares. It was not until 1965, when this case arose, 
that there was a departure from the corporate purpose, 
when it became apparent that the park was open to every­
one in the community, except Negroes.

The trial court’s finding that Little Hunting Park, Inc. is 
a “private social club” is not dispositive of the issues in this 
case.5 As this Court has made clear, there is no easy dichot­
omy between “private” and “public” organizations for the 
purpose of determining when the actions of an organization 
are subject to constitutional restraints. Evans v. Newton, 
supra, 382 U.S. at 299. As the Court pointed out in Marsh 
v. Alabama, 326 U.S. 501, 506:

Ownership does not always mean absolute dominion.
The more an owner, for his advantage, opens up his

o
Indeed, it is doubtful whether the ruling is correct under Virginia 

law, for the State’s Non-Stock Corporation Act requires that the qual­
ifications and rights o f members be set forth in the articles o f incor­
poration. Sec. 13.1-211, Code of Virginia, 1950 (1964 Replace. Vol.). 
See also, Sec. 13.1-231 (d). The corporate charter o f Little Hunting 
Park, Inc., however, grants no power to the directors to create personal 
or racial qualifications for membership. Therefore, in the absence of 
any corporation provision derogating from the “community recreation” 
purposes of the corporation, the Virginia corporation law no more 
permits the directors to  transform the corporation into a “private so­
cial club” by barring the use o f its facilities to certain classes of resi­
dents o f the community than it would permit them to divert corpo­
rate property to other than recreational purposes. See Meyers v. Lux, 
76 S.D. 182, 75 N.W.2d 533, 536: Morris v. Hussong Dyeing Machine 
Co., 81 N.J. Eq. 256, 86 Atl. 1026, 1028-1029.



13

property for use by the public in general, the more 
do his rights become circumscribed by the statutory 
and constitutional rights of those who use it.

Accordingly, as the Marsh case illustrates, if facilities are 
built and operated primarily for public benefit and their op­
eration 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. Ibid.9 We submit 
that Little Hunting Park, like Baconsfield Park which was 
the subject of Evans v. Newton, performs the public func­
tion of providing mass recreation for members of the com­
munity and, accordingly, as the Court there held, may not 
be operated on a racially discriminatory basis.* 70

9Accord: Terry v. Adams, 345 U.S. 461; Public Utilities Comm’n 
v. Pollack, 343 U.S. 451; Simkins v. Moses H. Cone Memorial Hospi­
tal, 323 F.2d 959, 968 CCA 4), cert, denied, 376 U.S. 938.

70In the Evans case the Court found it unnecessary to reach the 
question o f  whether Georgia, through a series o f legislative enactments, 
had facilitated or encouraged the establishment o f segregated parks. 
382 U.S. at 300-301, n. 3. With regard to the instant case, it is to be 
noted that for many years, and continuing to this day, various aspects 
of the Virginia governmental and political system have been aimed at 
fostering and maintaining a racially segregated society in the State. 
An extensive scheme o f constitutional and statutory provisions has 
been adopted over the years which inject racial discrimination into 
many aspects o f public and private life. The “official command to 
segregate contained in such enactments, when heard by private citizens 
such as the directors of Little Hunting Park, Inc., who are engaged in 
operating a community swimming pool, “has at least as much coercive 
effect as an ordinance.” Lombard v. Louisiana, 373 U.S. 267, 273; 
and see, Reitman v. Mulkey, 387 U.S. 369, 380. The index to the 
Virginia Code contains three pages o f references to constitutional and 
statutory provisions requiring segregation of the races. Although some 
o f these enactments have been held by the courts to be unconstitu­
tional, the validity o f some provisions has never been challenged 
through litigation. So long as these many provisions of law remain on 
the books they presumably reflect the policy o f the State to be heeded 
by its citizens. For discussion o f the governmental policy o f  maintain-



14

2. The impact on the community of the racial policy at 
issue here is even greater than was the case in Evans v. New­
ton. For, rather than being a mere prohibition against the 
use of a public recreation facility by Negroes, the effect of 
Little Hunting Park’s policy is to place in the hands of this 
private corporation the extraordinary power to control the 
racial composition of the community which it serves. The 
evidence demonstrates that municipally-owned public swim­
ming pools are virtually non-existent in the Washington met­
ropolitan area of Northern Virginia. As a consequence, the 
“public function” of providing “mass recreation” (Evans v. 
Newton, supra, 382 U.S. at 302) through community swim­
ming pools has been assumed by privately organized recrea­
tion associations, such as Little Hunting Park, Inc.;i Be­
cause of the “abdication” by local municipalities of the 
“traditional governmental function” (Mulkey v. Reitman, 50 
Cal. Rptr. 881, 413 P.2d 825, 832, aff’d, 387 U.S. 369) 
of providing recreational facilities for local residents and 
the resulting importance of parks and swimming pools such 
as those operated by Little Hunting Park in fulfilling this 
community need, Negroes obviously will be discouraged from 
moving into a neighborhood where they are excluded from * 57

ing segregated park and recreational facilities in Virginia, see Tate v. 
Department o f  Conservation and Development, 133 F. Supp. 53, 55-
57 (E.D. Va.), a ffd , 231 F.2d 615 (C.A. 4), cert, denied, 352 U.S. 
838; Wood v. Vaughan, 209 F. Supp. 106, 111-113 (W.D. Va.), affd , 
321 F.2d 474 (C.A. 4).

; / In the Northern Virginia metropolitan suburbs (consisting o f Ar­
lington and Fairfax Counties, and the cities o f Alexandria and Falls 
Church) with a population o f approximately 690,000 people, there 
are only two municipally owned swimming pools and one municipally 
owned lake (T. 138-139). By contrast, in this same area there are 
nearly 50 community swimming pools o f the same type as Little 
Hunting Park. Indicative of the role played by these pools in meeting 
the recreational needs o f the Washington, D. C. suburban population, 
is the fact that in the suburbs o f Maryland and Virginia there are a 
total o f approximately 105 pools o f this type. The Washington Post, 
p. A20, June 12, 1967.



15

such facilities. Conversely, a property owner owning a share 
in such a recreation association will be deterred from selling 
or renting his house to a Negro, since he will not have a 
ready purchaser or an assignee for his share/2

It is generally recognized that in recent years the availa­
bility of a community swimming pool and recreation facil­
ity is a major factor enhancing the desirability and value of 
residential property/2 Examination of the real estate adver­
tisements in any metropolitan newspaper reveals that partic­
ular emphasis is placed on the accessibility of a swimming 
pool in the neighborhood, and attests to the great impor­
tance that is attached to this feature in marketing homes/4 
Accordingly, since a house has greater market value if the 
purchaser or tenant has access to such a facility, when a 
Negro purchases or rents a house in a community where he 
is barred from the swimming pool association in which his 
vendor or landlord is a shareholder, there is an immediate 
loss in the value of the residence which must be borne by

22Since Little Hunting Park, Inc. is not obligated to repurchase 
outstanding shares (T. 193), a shareholder stands the best chance of 
selling his share to the purchaser o f his house. Similarly, since a share 
assignment can only be made from landlord to tenant and an annual 
assessment must be paid to keep a share valid, a landlord must rent 
his house to a white person in order to obtain reimbursement for his 
assessment or else suffer financial loss.

22 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).

24“ [T]he community swimming pool is considered by most build­
ers as one of their most popular sales appeals to people o f all ages and 
incomes.” 29 Practical Builder No. 2, p. 94 (Feb. 1964) (T. 148, 
Plaintiffs’ Exh. 29). In one 12-page advertising supplement in The 
(Washington) Evening Star issue o f January 20, 1967, there were over 
50 advertisements for apartments and houses in which there was 
prominent mention o f the pool facilities (T. 148-151, Plaintiffs’ Exh. 
30).



16

one of the parties to the transaction. Because of the close 
relationship between the association share and the value of 
the real estate, an owner in these circumstances will either 
refuse to sell or rent to non-Caucasians or else will require 
them to pay a higher price than the property is worth in 
the absence of 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.” Bar- 
rows v. Jackson, 346 U.S. 249, 254. And if this pattern is 
widespread, and as the record shows to be true for North­
ern Virginia, governments are unwilling to duplicate privately 
owned community recreation facilities with municipally 
operated facilities, non-Caucasians will not seek, or be able, 
to purchase or rent 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 the effect of a racially restrictive covenant is not local­
ized, but rather that such a covenant is usually part of a 
system, the effect of which can be to blanket an entire 
community with uniform restrictions, thereby creating Negro 
and white ghettoes. The racially discriminatory policy of 
Little Hunting Park, we submit, no less than the discrimi­
natory 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.

It is further significant 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



17

property, with attempted intervention by a third party seek­
ing to prevent performance. Shelley and Barrows make clear 
that where, as here, “both parties are willing parties” to such 
a contract a state court may not give legitimacy to the 
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.) The corporation in the instant case relied on 
the asserted right under its by-laws to condition Sullivan’s 
assignment of his share on approval by the board of direc­
tors. This is no different, however, than Shelley, where the 
property owner likewise had no unlimited right to transfer 
his property; it too was subject to a racially restrictive cov­
enant which was a “condition precedent” to the right of 
sale. The exercise, therefore, by the board of directors of 
its “right” to approve assignments and determine member­
ship eligibility on the basis of race amounts to nothing less 
than the explicit racial covenant in Shelley. Thus, whether 
it is expressly denominated a racial covenant or a right of 
approval is of no moment \15 it remains a racial restriction 
on the use or transfer of property to which the courts may 
not give “sanction” or “validity.” Barrows v. Jackson, supra, 
346 U.S. at 254, 258.

It is likewise immaterial that the party before the court 
who relies on the racial restriction asserts it as a basis for 
seeking affirmative relief, or, as here, rests on it as a defense. 
There is “no significant difference between the restrictive 
covenant being used as a basis for an action for either dam­
ages or an injunction by the proponent of such covenant and 
its assertion as a defense.” Spencer v: Flint Memorial Park

15See Lauderbaugh v. Williams, 409 Pa. 351, 186 A.2d 39; Moun­
tain Springs A ss’n v. Wilson, 81 N.J. Super. 564, 196 A.2d 270, 275- 
277; Tuckerton Beach Club v. Bender, 91 N.J. Super. 167, 219 A.2d 
529.



18

Ass’n, 4 Mich. App. 157, 144 N.W.2d 622, 626. Accord: 
Clifton v. Puente, 218 S.W.2d 272, 274 (Tex. Civ. App.). 
And see, Rice v. Sioux City Memorial Cemetery, 349 U.S. 
70, 80 (dissenting opinion).

3. The directors’ arbitrary action in expelling Sullivan 
from the corporation because of his voiced disagreement 
with its racial policy has resulted in depriving him and the 
members of his family of the use of the community recrea­
tion facility which it operates. Both of the shares that he 
owned have been revoked, thereby impairing the marketa­
bility for rental or sale of the two houses that he owns in 
the community served by Little Hunting Park, Inc.

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 developing and operating a com­
munity 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 appar­
ent 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 asso­
ciation, 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 opposed their discriminatory 
racial policy. Since, as we have already shown, the public 
function performed by Little Hunting Park, Inc. makes it 
subject to constitutional limitations, forfeiture of an indi­
vidual’s right of free speech may not be made a condition 
of the use of its facilities. Marsh v. Alabama, supra, 326 
U.S. 501.16

^Courts have frequently been guided by the First Amendment in 
protecting the right o f dissent within voluntary associations. See, e.g., 
Crossen v. Duffy, 90 Ohio App. 252, 103 N.E.2d 769, 778; Mitchell



19

Particularly germane to the circumstances of this case is 
the concurring opinion of Chief Justice Warren (writing for 
a majority of the Court) in Curtis Publishing Co. v. Butts, 
supra, 388 U.S. at 163-164. As he observed, in the urban­
ized 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 al­
though they are not subject to the restraints of the 
political process, “public figures,” like “public offi­
cials,” often play an influential role in ordering 
society.

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

v. International A ss’n o f  Machinists, 196 Cal. App. 2d 796, 16 Cal. 
Rptr. 813, 816-820 \ Madden v. Atkins, 4 N.Y.2d 283, 151 N.E.2d 73, 
78; 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), cert, denied, 385 U.S. 971.



20

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. This clearly is 
state action falling within the ambit of the Fourteenth 
Amendment. “The test is not the form in which state power 
has been applied, but whatever the form, whether such 
power has in fact been exercised.” New York Times Co. v. 
Sullivan, 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 Sullivan’s 
expulsion from Little Hunting Park, Inc. for protesting Free­
man’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 property. 
Barrows v. Jackson, supra, 346 U.S. at 254. See also Reit- 
man v. Mulkey, supra, 387 U.S. at 380-381.

4. The Supreme Court of Appeals of Virginia rejected 
the petitions for appeal presented to it in these two cases, 
thereby denying the appeals, on the stated ground that they 
were “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 transcript and a reason­
able opportunity to examine the original or a true copy of 
it” as required by Rule 5:1, Sec. 3(f) of the Court.77 In 
view of the substantial constitutional rights asserted by peti­

/7 Rule 5:1, Sec. 3 (0  o f the Virginia Supreme Court o f Appeals 
provides that as part o f the procedure for certifying a record for ap­
peal 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



21

tioners here, we urge the Court to examine the record in 
these cases to determine whether the “procedural ground” 
on which the orders of the state court were based is “ade­
quate to bar review by this Court.” Parrot v. City o f Tal­
lahassee, 381 U.S. 129. For it is settled that, “ [t]he con­
sideration of asserted constitutional rights may not be 
thwarted by simple recitation that there has not been 
observance of a procedural rule with which there has been 
compliance in both substance and form, in every real sense.” 
N.A.A.C.P. v. Alabama, 377 U.S. 288, 291\Staub v. City o f 
Baxley, 355 U.S. 313, 318-320; N.A.A.C.P. v. Alabama, 357 
U.S. 449, 454-458.

The decree was entered in the trial court on April 12, 
1967, in the Sullivan case, and on May 8, 1967, in the 
Freeman case. It is undisputed, as shown by the affidavits 
of counsel filed in the trial court, that on June 9, 1967, 
counsel for the petitioners, Mr. Brown, wrote Mr. Harris, 
counsel below for the respondents, informing him that the 
transcripts in the two cases would be tendered later that 
day to the trial judge. Mr. Brown also indicated that because 
of errors in the transcripts, he was filing motions to correct 
the transcripts. Mr. Brown stated in his letter 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 upon by the 
court. 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

final judgment. The mle also states: “Counsel tendering the tran­
script . . . shall give opposing counsel reasonable written notice o f  the 
time and place of tendering it and a reasonable opportunity to exam- 
ing the original or a true copy of it.” 2 Code o f Virginia, 1950 
(1957 Replace. Vol.) 602. The text o f the provision is contained 
infra, p. E-l-E-2.



22

the tender of the transcripts was made on Monday, June 12, 
the day that he received them. Meanwhile, motions to cor­
rect the two transcripts were served on Mr. Harris, along 
with the notice that they would be brought to hearing be­
fore the court on Friday, June 16, the next Motion Day.

On Monday morning, June 12, the trial judge acknowledged 
to Mr. Brown over the telephone that he had received the 
transcripts and the motions to correct the record. Pursuant 
to Mr. Brown’s request, he agreed to defer signing the tran­
scripts until the motions had been acted upon. On Friday, 
June 16, the judge stated in court that the transcripts had 
been available in his office for one week, since the preced­
ing 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 petitioners or to the entry of orders grant­
ing 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 necessary corrections were made, signed the 
transcripts on that date.

On the basis of the foregoing facts, and relevant decisions 
of the Virginia Supreme Court of Appeals, it is clear that 
petitioners have fully complied with Rule 5:1, Sec. 3(f). 
That court has emphasized repeatedly that the crucial re­
quirement in the rule is not so much the matter of advance 
notice to opposing counsel before tender of the transcript 
to the trial judge, but rather the reasonableness of the op­
portunity afforded counsel to examine the transcript before



23

it is signed 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. And what constitutes 
reasonable opportunity “must be determined by the facts 
of each case.” Cook v. Virginia Holsum Bakeries, Inc., 207 
Va. 815, 153 S.E.2d 209, 210. The Bacigalupo case, in par­
ticular, involved circumstances indistinguishable from those 
presented here. After ruling that the prior notice to oppos­
ing counsel of tender had not met the requirement of rea­
sonableness, the trial judge advised the parties that he would 
defer signing the transcript for seven days to afford counsel 
opportunity to examine the transcript and indicate his objec­
tions, if any. In holding that this procedure complied 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 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 pro­
posed orders granting the motions to correct the transcripts 
reflect the fact that he had examined the transcripts and the 
proposed corrections, and concurred therewith. The Virginia 
Supreme Court of Appeals plainly has ignored its own deci­
sions in reaching the result it did here, for it could have ex­
ercised its discretion to hear the appeals. That court’s 
“discretionary decision” to deny the appeals “does not 
deprive this Court of jurisdiction to find that the substantive



24

issue[s] ” are properly before it. Williams v. Georgia, 349 
U.S. 375, 389; Shuttlesworth v. City o f Birmingham, 376 
U.S. 339.

CONCLUSION

For the foregoing reasons, this petition for a writ of 
certiorari should be granted.

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 
1829 Columbia Pike 
Arlington, Virginia 22204
Attorneys for Petitioners

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

Of Counsel

March, 1968.



A-l

A P P E N D I X  A

VIRGINIA:

In the Supreme Court of Appeals held at the Supreme Court of 
Appeals Building in the City of 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. Sullivan, 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 Little 
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



B-l

A P P E N D I X  B

VIRGINIA:

In the Supreme Court of Appeals held at the Supreme Court of 
Appeals Building in the City of 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



C-l

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 Board of Directors, even though the prospect 
might meet all other qualifications, would seem to be 
conclusive on this point. This being so, the Court’s power 
to review the action of the Board of Directors is limited. 1 
find no reason to set it aside. The Board acted within the 
powers conferred on it by the By-Laws, and there was am­
ple evidence to justify its conclusion that the complainant’s 
acts were inimicable to the Corporation’s members and to 
the Corporation.

I do not believe property rights are involved in this case 
to any material extent. The number of memberships is in-

A P P E N D I X  C



C-2

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. W.,
Washington, D. C. 20036

t  t  t



C-3

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, 1 967.

James Keith 
Judge

Entered in Chancery Order 
Book No. 120, page 318



C-4

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



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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.

A P P E N D I X  D



D-2

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,

James Keith.
JK:elc
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., et al.,

Plaintiffs,

v. IN CHANCERY NO. 22752

LITTLE HUNTING PARK, INC., et al.,

Defendants.

DECREE

THIS cause came to be heard this 12th 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,

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



D-3

THIS DECREE IS FINAL.
Entered this 8th day of May, 1967.

James Keith 
Judge

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



E-l

CONSTITUTION OF THE UNITED STATES 

Amendments 

Article I
Congress shall make no law respecting an establishment 

of religion, or prohibiting the free exercise thereof; or abridg­
ing 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 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.

*  *  *

A P P E N D I X  E

RULES OF THE SUPREME COURT OF APPEALS 
OF VIRGINIA

Rule 5:1. The Record on Appeal

Sec. 3. Contents o f  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.



E-2

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 au­
thentic. He shall note on it the date it was tendered to him 
and the date it was signed by him.

* * *



*