Hampton v. City of Jacksonville, FL Reply Brief for Appellants
Public Court Documents
March 1, 1962

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Brief Collection, LDF Court Filings. Hampton v. City of Jacksonville, FL Reply Brief for Appellants, 1962. 2169db58-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ae001879-4e1a-4e9b-a9d6-d851fe02aa1d/hampton-v-city-of-jacksonville-fl-reply-brief-for-appellants. Accessed April 22, 2025.
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lutfrit Hiatus (Emtrt nf Appeals F ob the F ifth Circuit No. 19,298 I n th e F rank H ampton, et al., —v.- Appellants, City of J acksonville, F lorida, et al., Appellees, appeal from the united states district court FOR THE SOUTHERN DISTRICT OF FLORIDA JACKSONVILLE DIVISION REPLY BRIEF FOR APPELLANTS J ack Greenberg Constance B aker Motley M ichael Meltsner 10 Columbus Circle New York 19, New York E rnest D. J ackson 410 Broad Street Jacksonville, Florida Attorneys for Appellants I n th e Itttteb Btntvn (Emtrt of Appeals F oe the F ifth Circuit No. 19,298 F rank H ampton, et al., —v.— Appellants, City of J acksonville, F lorida, et al., Appellees, A P P E A L FR O M T H E U N IT E D STA TES D IS T R IC T COU RT FO R T H E S O U T H E R N D IST R IC T OF FLO R ID A JA C K S O N V IL L E D IV ISIO N APPELLANTS5 BRIEF IN REPLY TO APPELLEES CITY OF JACKSONVILLE AND FRED A. GHIOTO Appellants have received briefs filed by appellee City of Jacksonville and appellee Fred A. Ghioto and herein reply pursuant to the provisions of Rule 24(4) of the Rules of this Court. I. Appellees attempt to qualify the testimony of Jackson ville City Commissioner Dallas Thomas (Br. of City of Jacksonville 2, 3; Br. of Fred A. Ghioto 2). Commissioner Thomas testified that one of the purposes of the reverter clause, limiting the use of the properties sold to use as golf courses, was to preserve golfing facilities for the cit 2 izens of Jacksonville1 (R. 131, 132, 134). The appellees argue that this is but one part of the truth, that the Commissioner suggested another reason for the limitations on use, to wit “ . . . so that the City may derive the highest sale price from the courses” (Br. of City of Jacksonville 2, 3; R. 131). Appellants fail to grasp the significance of the quoted testimony. If the appellees are suggesting the rare notion (and appellants see no other possible meaning to their argument here) that a restriction imposed on the use of property, by the vendor and as against the vendee, prior to public sale of property, will raise the sale price which the vendor receives, they should have cited some authority for, or produced an illustration of, such an un common theory of value.2 II. The City attempts to qualify Commissioner Thomas’s testimony on the ground that Thomas could not speak for the whole City Commission and City Council. In over ruling the City’s attempt to exclude Thomas’s testimony at the trial, the District Court recognized that the reverter was in the deed because it was placed in the specifications by the City Commission and that it was relevant “ . . . why 1The Commissioner was quite explicit in stating this aim: Q. You were interested in preserving golfing facilities for the citizens of Jacksonville, were you not? A. Yes. Q. You were? You were interested in preserving that for ever for that purpose. A. Yes (R. 134). 2 Appellants respectfully submit that this Court will not con clude that a vendee will pay more where the deeds provide that the properties shall revert (“as if this conveyance had not been made”) if maintained or diverted for use other than as golf courses, than the vendees would pay without such restriction. Cf. Child Labor Tax Case, 259 U. S. 20, 37. “All others can see and understand this. How can we properly shut our minds to it?” 3 it was placed there by the Commissioners” (R. 125, 135). On uncontradicted testimony this record shows that Com missioner Thomas was the moving force behind the trans actions. The District Court dismissed this case pursuant to the provisions of Rule 41(b), Federal Rules of Civil Pro cedure, at the conclusion of appellant’s case (R. 194-96, 202) and, therefore, the appellate court must “upon review of such an order view the evidence and all inferences rea sonably to be drawn therefrom in the light most favorable to plaintiff.” Federal Deposit Ins. Corp. v. Mason, 115 F. 2d 548, 551 (3rd Cir. 1940); Ettore v. Philco Television Broadcasting Corp., 229 F. 2d 481, 484 (3rd Cir. 1956). One of the City Commissioners since 1955 (R. 113), Thomas held the post on the Commission which adminis tered the financing of the City’s golf courses, parks and zoo. The City Commission delegated the responsibility for the operation of the golf courses to Commissioner Thomas (R. 114,115) and Thomas knew the operation of the courses from personal knowledge (R. 116, 117). On the day sub sequent to the entry of the District Court’s order forbidding segregation in the operation of the courses, Commissioner Thomas made the motion before the City Commission to close the courses (R. 119-120). The motion was adopted (R. 120). Thomas made the motion before the City Council that the courses be sold (R, 122). He moved that the City Attorney include the reverter clause in the specifications for sale (R. 131). The specifications were adopted (R. 131, 132). Thomas asked the City Commission to appoint an appraiser (R. 122). When he questioned the first appraisal, a second was ordered (R. 122). Thomas conferred with the City Attorney over the specifications for sale several times (R. 123, 132, 133) and Thomas wms the person who pro posed that the reverter clause be included in the specifica tions for sale covered by the ordinance (R. 131, 132, 135). 4 The District Court made no specific finding of fact as to the role Commissioner Thomas played in the transactions pertaining to the sale of the properties. Appellants do not seek on this appeal to overturn the findings of fact of the District Court but rather claim as error the legal infer ences drawn from undisputed facts.3 The error which ap pellants seek reversed is not a conclusion as to the candor and credibility of oral testimony but the legal effect to be given oral testimony and documentary evidences when’un contradicted. United States v. United States Gypsum Co., 333 U. S. 364, 393-396. Whatever the precise meaning of the “clearly erroneous” test of Rule 52(a), Federal Rules of Civil Procedure, In re Josephson, 218 F. 2d 174, 182 (1st Cir. 1954) it does not apply here. Orvis v. Higgins, 180 F. 2d 537, 539-541 (2nd Cir. 1950), cert, denied 340 U. S. 810; 5 Moore Federal Practice §52.04, p. 2637-42, United States v. Armature Rewinding Co., 124 F. 2d 589, 591 (8th Cir. 1942). In St. Helena Parish School Board v. Hall, 197 F. Supp. 649, aff’d 30 U. S. L. Week 3255, defendants argued that the purpose of legislation, which did not mention race on its face, should be ignored. The Court rejected this con tention and considered the public statements of the sponsors of the legislation, stating: “Irrespective of the express terms of a statute, particularly in the area of racial dis- chimination, courts must determine its purpose as well as its substance and effect.” 197 F. Supp. at 652. 3 Appellants do not challenge the finding of the District Court that the sale was bona fide and without side agreement. Nor do appellants challenge the power of the City to sell, rather than integrate, recreational facilities. “Rather, the question presented for decision is whether a municipality may avoid the requirements of the equal protection clause by selling property on extremely favorable terms while it retains valuable present interest in and control over the use of that property” (Br. of Appellants 7). 5 Appellees argue (Br. of City of Jacksonville 17-19; Br. of Fred A. Ghioto 5) that the City does not have an interest in the properties cognizable by the Fourteenth Amendment because the reverter clause creates “ . . . the mere possi bility of having an estate at some future time.” Whatever the label the law of real property attaches to the property interests retained by the City, only the character and effect of their retention is important in the context of Fourteenth Amendment rights. City of St. Petersburg v. Alsup, 238 F. 2d 830, 832 (5th Cir. 1956). Regardless of what the City’s interest is called, the fact remains that the City has dictated the particular use to which the properties must be put; and if the properties are used for other than golf courses, the City may “re-enter and re-possess.” The City has retained mortgages for over 97.5% of the sale juice and transferred the property to former City employees whose personal resources could not cover even the modest down payment. In other circum stances these features of the transfer might not call for the invocation of the guarantees of the Fourteenth Amend ment, but, quite aside from any claim of fraud, the terms of transfer must be read in the light of the record before this Court. The City Commissioner charged with the ad ministration of the properties and who recommended clos ing the courses, sale of the courses and the specifications of the sale, has testified that one of the purposes of the retention of the City’s interest was the public purpose of preserving golfing facilities for the citizens of Jacksonville and that the courses could not operate at a profit if in tegrated. Triggered by a District Court Order to integrate the golf courses, the City has responded by creating an arrangement which will keep the courses open and segre III. 6 gated. No other meaningful purpose for the retention of the City’s interest has been suggested by appellees. The City was faced with the choice of operating its golf courses on an integrated basis, closing them or losing com plete control of the courses (with the accompanying risk that new owners would not use the properties as golf courses). The City of Jacksonville has attempted to avoid this problem—to have its cake and eat it too—by creating a relationship which assures golfing facilities for the cit izens of Jacksonville without retaining title in the City. But the “state action” requirement of the Fourteenth Amendment is no straitjacket. It contemplates a variety of factual situations in which the power and policy of the State has been exercised: “Because the virtue of the right to equal protection of the laws could lie only in the breadth of its applica tion, its constitutional assurance was reserved in terms whose imprecision was necessary if the right were to be enjoyed in the variety of individual-state relation ships which the Amendment was designed to embrace.” Burton v. Wilmington Parking Authority, 6 L. ed. 2d 45, 50. The case of Eaton v. Board of Managers of James Walker Memorial Hospital, 261 F. 2d 521 (4th Cir. 1958) cert, denied 359 U. S. 984, relied upon so heavily by appellees, is an illustration of the flexibility of the “state action” requirement.4 The Court of Appeals for the Fourth Circuit rested its opinion, on appeal from the granting of a motion to dismiss prior to trial, on a finding that the operations of the hospital were no longer subject to practical control 4 It should be noted that Eaton was decided prior to Burton v. Wilmington Parking Authority, supra. 7 of the City in a context in which governmental action had long since ceased.5 Moreover, the relationship in Eaton was not created subsequent to a court order which enjoined the City from segregated operation of the facility. Finally, the City of Jacksonville has retained practical control over the properties transferred by stipulating their use.6 CONCLUSION W herefore, for the foregoing reasons, appellants re spectfully submit that the judgment of the Court below be reversed. Respectfully submitted, J ack Greenberg Constance B aker Motley Michael Meltsner 10 Columbus Circle New York 19, New York E rnest D. J ackson 410 Broad Street Jacksonville, Florida Attorneys for Appellants 5 The deed in Eaton had been executed in 1901. 6 A limitation on use placed on private businessmen, whose mo tive is profit, is a much more important restriction and means far greater practical control, than a similar limitation on use placed on a non-profit corporation whose chartered purpose is to carry out the function which the limitation on use requires. In short, a businessman will use his property in the way which will make the most profit, and will desire to have the right to adjust use of his property accordingly. The same is not true of a non-profit corporation chartered to maintain a public hospital. 8 Certificate of Service I hereby certify that on the ...... day of March, 1962, I served a copy of the Reply Brief for Appellants upon counsel for all parties to the case, at the addresses indi cated below, by depositing copies of same in the United States mail, air mail, postage prepaid: E llis T. F ernandez, J r., Esq. 225 Baymar Building Jacksonville 2, Florida C. R ay Greene, J r., Esq. 1630 Lynch Building Jacksonville, Florida W illiam M. Madison, Esq. F rederick J. S impson, Esq. 1103 City Hall Jacksonville 2, Florida J ack Greenberg Attorney for Appellants » 38