State Athletic Commission v. Joseph Dorsey, Jr. Motion to Affirm

    In th e

Supreme (flmirt of %  States
O ctober T er m , 1958

No. 787

S tate A th letic  C om m ission , 

versus
Appellant,

J oseph  D orsey, J r .,
Appellee.

A P PE A L  P R O M  T H E  U N IT E D  STATES D ISTR IC T COU RT FOR T H E  
EA STE R N  D ISTR IC T OF L O U IS IA N A , N E W  ORLEAN S DIVISION

MOTION TO AFFIRM

Louis B erry

4226 South Central Avenue 
Los Angeles 11, California

I srael M. A u g u stin e , J r . 
P ru d h o m m e  F. D ejoie

1470 No. Claiborne Avenue 
New Orleans 16, Louisiana

T hurgood M arshall  
J ack  Greenberg 

Suite 1790 
10 Columbus Circle 
New York, N. Y.
Attorneys for Appellee

E lwood C h iso lm  
J am es M. N abrit , III 

Of Counsel



I n  th e

f&npxmt (Limvt at %  Itttfrft
O ctober T er m , 1958

No. 787

S tate A th letic  C o m m ission , 

versus

J oseph  D orsey, J r .,

Appellant,

Appellee.

A P P E A L  P R O M  T H E  U N IT E D  STATES D ISTR IC T COURT FOR T H E  
E A STE R N  D ISTR IC T OP L O U IS IA N A , N E W  ORLEAN S DIV ISIO N

MOTION TO AFFIRM

Appellee in the above-entitled case moves to affirm on 
the ground that the questions presented are so unsubstan­
tial as not to need further argument.

Opinion Below

The opinion of the three-judge United States District 
Court for the Eastern District of Louisiana, New Orleans 
Division, is now reported at 168 F. Supp. 149.

Statutes

The statute and regulation declared unconstitutional by 
the District Court are Louisiana Revised Statutes of 1950, 
4:451 et seq. (Acts 1956, No. 579), and Rule 26 of the 
Rules and Regulations of the State Athletic Commission.



2

Questions Presented

Appellee, for the purposes of this motion, adopts the 
“ Questions” as presented by appellant at pages 3-4 of its 
Jurisdictional Statement.

REASON FOR GRANTING THE MOTION 

The Questions Presented Are Unsubstantial

I.
Where a state agency purports to act under state au­

thority and invades rights secured by the Federal Constitu­
tion it is subject to the process of the federal courts, and 
an action seeking appropriate relief against such an agency 
is not prohibited by the Eleventh Amendment.

Appellant State Athletic Commission concedes, as it 
must, that if this action had been brought against the indi­
vidual members of the State Athletic Commission, that it 
would not be prohibited as a suit against the state within 
the meaning of the Eleventh Amendment to the Constitu­
tion of the United States.1 However, appellant asserts 
that a distinction may be drawn between suits against 
individuals comprising a state board and suits against 
the state board, arguing that the principle uniformly ap­
plied to the former may not be applied against the latter.

1 Among the many decisions by this Court which require the 
concession made by appellants are: Gunter v. Atlantic Coast Line 
R. Co., 200 U. S. 273 (1906); Prout v. Starr, 188 U. S. 537 (1903) ; 
Smyth v. Ames, 169 U. S. 466 (1898); Tindal v. Wesley, 167 U. S. 
204 (1897) ; Reagan v. Farmers’ Loan & Trust Co., 154 TJ. S. 362 
(1894) ; Pennoyer v. McConnaughy, 140 U. S. 1 (1891); Ex Parte 
Young, 209 U. S. 123 (1908); Alabama Public Serv. Comm. v. 
Southern R. Co., 341 U. S. 341 (1951) ; Sterling v. Constantin, 
287 U. S. 378 (1932); Georgia R. & Bkg. Co. v. Redwine, 342 U. S. 
299 (1952); and many other cases collected at 43 A. L. R. 408.



3

The court below carefully considered the contention and 
it is submitted that its disposition of the question was emi­
nently correct. After citing School Board of Charlottes­
ville v. Allen (4th Cir. 1956), 240 F. 2d 59, cert. den. 353 
U. S. 910 (1957) and Orleans Parish School Board v. Bush 
(5th Cir. 1957), 242 F. 2d 156, cert. den. 354 U. S. 921 
(1957) the court below wrote at 168 F. Supp. 149, 151:

“ The short answer to the Commission’s contention 
is that Dorsey’s suit is not against the State of Louis­
iana, in name or in effect. It does not attempt to compel 
state action, but to prevent illegal action of the Com­
mission. As Judge Tuttle stated in the Bush case: 
‘If in fact the laws under which the Board here pur­
ports to act are invalid, then the board is acting with­
out authority from the State and the State is no-wise 
involved.’ A  state can act only through agents. 
Whether the agent is an individual official or a Com­
mission, the agent ceases to represent the state when 
state power is used in violation of the United States 
Constitution.

“ There is no merit to the defendant’s contention 
that the plaintiff should have sued the members of the 
boxing Commission individually. We agree with the 
court in School Board of City of Charlottesville v. 
Allen that . . .  ‘if high officials of the state and of 
the federal government may be restrained and en­
joined from unconstitutional action, we see no reason 
why a school board [or any other state Commission] 
should be exempt from such suit merely because it had 
been given corporate powers.’ In Browder v. Gayle, 
D. C., 142 F. Supp. 707, aff’d 352 U. S. 903, . . . the 
court indicated that it is not necessary to sue the 
members of a Commission individually when no spe­
cial relief is sought against them by way of damages.



4

In the case before us the plaintiff is seeking relief from 
action of the state’s agent, the State Athletic Com­
mission, in its collective capacity as a commission.”

Furthermore, Governor of Georgia v. Sundry African 
Slaves, 26 U. S. 110 (1828), relied upon by appellant, does 
not support the argument made. That was an action 
against the Governor of a state rather than a state agency, 
but in any event it was litigated prior to the adoption of 
the Fourteenth Amendment. Cf. Sterling v. Constantin, 
278 U. S. 378 (1932).

That the distinction urged by appellant is without merit 
is further demonstrated by Hopkins v. Clemson Agricul­
tural College, 221 U. S. 636 (1911) in which no natural 
persons were named defendants. That case held:

“ . . . a void act is neither a law nor a command. 
It is a nullity. It confers no authority. It affords 
no protection. Whoever seeks to enforce unconstitu­
tional statutes, or to justify under them, or to obtain 
immunity through them, fails in his defense and in his 
claim of exemption from suit.” (At 644)

Moreover, “ . . . [I]t cannot matter that the agent is a 
corporation rather than a single man.” Sloan Shipyards 
Corp. v. United States Shipping Board Emergency Fleet 
Corporation, 258 U. S. 549, 567 (1922). The Fourteenth 
Amendment is addressed “ to the states, but also to every 
person, whether natural or juridical, who is the repository 
of state power.” Home Telephone & Tel. Co. v. City of 
Los Angeles, 227 IT. S. 278, 286 (1913).

Disposing of an identical contention by reference to 
Brown v. Board of Education, 347 IT. S. 483 (1954), the 
Fourth Circuit remarked in School Board of Charlottes­
ville v. Allen, supra at 63, that it was “ not reasonable to



5

suppose that the Supreme Court would have directed in­
junctive relief against school boards acting as state agen­
cies, if no such relief could be granted because of the pro­
visions of the Eleventh Amendment to the Constitution.”

II.

A State Statute and an administrative regulation pro­
hibiting prize fights between persons of different races 
plainly violates rights protected by the Fourteenth Amend­
ment to the Constitution of the United States.

The opinion of the court below is unquestionably cor­
rect, and the appeal presents no substantial question on 
the merits, for the statute and regulation in question (1) 
effect a racial discrimination, contrary to the equal pro­
tection and due process clauses of the Fourteenth Amend­
ment and (2) impair the right to pursue a lawful occupa­
tion contrary to the due process clause of that amendment.

(1) With respect to racial discrimination see, of course, 
Brown v. Board of Education, 347 U. S. 483 (1954); Bolling 
v. Sharpe, 347 U. S. 497 (1954). It has been repeatedly 
held, in cases relied upon by the court below, that the funda­
mental constitutional principles of the Brown and Bolling 
cases are not to be restricted to public education. Browder 
v. Gayle, 142 F. Supp. 707 (1956), affirmed 352 U. S. 903; 
Dawson v. Mayor and City Council of Baltimore City (4th 
Cir. 1955), 220 F. 2d 386, affirmed 350 U. S. 877; Department 
of Conservation v. Tate (4th Cir. 1956), 231 F. 2d 615 cert, 
den. 352 U. S. 838; City of Petersburg v. Alsup (5th Cir. 
1956), 238 F. 2d 830 cert. den. 353 U. S. 922; Morrison v. 
Davis (5th Cir. 1958), 252 F. 2d 102 cert. den. 356 U. S. 968.

(2) Concerning the right of appellee to pursue his calling 
free from arbitrary racial restrictions it is to be remembered 
that while professional boxing is subject to regulation by the 
state, all regulation must be within the limitations imposed



6

by the Constitution of the United States. Harvey v. Morgan, 
Tex. Civ. App., 1954, 272 S. W. 2d 621 is similar to this case. 
The Texas Court of Civil Appeals, following the rationale 
of the Brown case, invalidated a statute which prohibited 
boxing matches, etc. between “ any person of the Caucasian 
or ‘white’ race and one of the African or ‘Negro’ race.” 2

See Truax v. Raich, 239 U. S. 33, 41 (1915) in which the 
Court ruled that the authority of the states:

. . . “ does not go so far as to make it possible for 
the state to deny to lawful inhabitants, because of 
their race or nationality, the ordinary means of earn­
ing a livelihood it requires no argument to show that the 
right to work for a living in the common occupations 
of the community is of the very essence of the personal 
freedom and opportunity that it was the purpose of 
the Amendment to secure.”

See also Takahashi v. Fish db Game Commission, 334 U. S. 
410 (1948); Tick Wo v. Hopkins, 118 U. S. 356 (1886).

III.

The appellee had standing to challenge the statute and 
regulation involved herein.

Appellant’s objection that appellee had no license as a 
prize fighter in Louisiana, on the date of trial, and that this 
fact deprives him of standing or sufficient interest to press 
this action is clearly unsubstantial. The statement of the 
Court below is a sufficient answer. The Court found that:

Dorsey was issued a license for 1957. He has no 
license for 1958, but the Commission’s policy is to 
issue a license to a prize fighter only on the date of a 
scheduled fight and then only after the fight has been

2 The quoted phrase from the Texas statute is identical to a por­
tion of Louisiana’s Commission Rule 26, involved in this ease.



7

held and the boxer’s license fee deducted from his 
share of the purse. The Commission admits the es­
sential allegations of Dorsey’s complaint and admits 
also that it would not allow Dorsey to engage in a mixed 
prize fight in Louisiana. (At 168 F. Supp. 150-151)

And of course, it was admitted by the answer that Dorsey 
was licensed and in good standing when the action was com­
menced.

In any event, Dorsey’s interest is no less substantial than 
that of the plaintiffs in Truax v. Raich, supra, at 38-39, and 
Pierce v. Society of Sisters, 268 U. S. 510 (1925).

CONCLUSION

For the foregoing reasons, the questions presented 
by appellant are clearly unsubstantial and this motion 
to affirm should be granted.

Respectfully submitted,

Loins B erby

4226 South Central Avenue 
Los Angeles 11, California

I srael M. A u g u stin e , Jr.
P ru d h o m m e  F. D ejoie

1470 No. Claiborne Avenue 
New Orleans 16, Louisiana

T hurgood M arshall

J ack  G reenberg 
Suite 1790 
10 Columbus Circle 
New York, N. Y.
Attorneys for Appellee

E lwood Ch iso lm  
J am es  M . N abrit , III 

Of Counsel