Hampton v. City of Jacksonville, FL Reply Brief for Appellants

    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