Petition for Writ of Certioraric — Sullivan v. Little Hunting Park, Inc.

Supreme Court brief1968

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"PAUL E. SULLIVAN, ET AL., files. - =

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suPREME COURT: OF THE UNITED STATES .

are October Term, 1967 - 2

TR. FREEMAN, JR., ET AL.; Petitioners. - > *

ie v. ‘

_, LITTLE HUNTING PARK, INC., ET AL. ~

. “PETITION FOR A WRIT OF CERTIORARI TO THE |

‘SUPREME COURT OF APPEALS OF VIRGINIA...

NS ee Allison W. Brown, i. :

Suite 501, 1424 16th Street, N. W.

_"_ Washington, D. C. ° 20036

‘Peter Ames Eveleth ce

217 Fifth Street, S..E,.

Washington, D. C. 20003

ae ‘+s. . Robert.M. Alexander

_ Jack Greenberg 1829 Columbia Pike

James M. Nabrit, Ill Arlington, Virginia 22204 .

10 Columbus Circle Atte P ieee ee

New. York, N. Y. 0019 torneys for Petitioners _-_

Of Counsel |

Washington, D. C. - THIEL PRESS - 202 - 393-0625

2 met “< at Borer

"Questions Prebented Bex Sd iahhcdvihas cn teiekie 2°

Constitutional provisions Fk oe aks ide mt teers oe

MOE Bid Sins lca cis Pe CAP Pee: Pane mee piece > a

A. Little Hunting Park, Inc.—its purpose ond manner of ‘ee.

P CPC oie dec cc pe sreuseseevesébecesee™ ve

B. The corporation’s nai refuse to approve the. as-

signment of Paul E. Sullivan’s share because the’ as-

‘signee, T. R. Freeman, Jr. and his family, are Negros = 2. ee

C. — The corperation’s directors expel Paul E. Sullivan be- -

cause of his criticism of their refusal to : approve the

assignment of his share to Dr. ‘T: R. Freeman, ir. on

tent the basis of race’, ae eae LESS MAR RR ET SL -7

I ora ge ke ets laken nec” 8,

E. The proceedings below . as whi Nv teed e tees es ee ee

‘Reasons for Granting the Writ _ inane bie eres s senesseee MS oo

Conclusion... ..0eee ve. = tena oe ees 24 a S

Ne ee re

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

Barrows v. Jackson, 346 U.S.-249°. 00.0. -..2-++ 16, 17,20

Bell v. Maryland, 378 US. 226<<......200.l.c..4e0. 1617

_Buchanalt v, Warley, 245 US. 60 2.0.0.2... 0cee ee este, 16

. Clifton v. Puente, 218 S.W.2d 272 (Tex. Civ: App.) . Poy |

oe Cook v. Virginia Holnim Bakeries, Inc., db Va. 815, : ieee ox

ROI ee Coen cs a iv cki vx eo

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

Curtis Publishing Co: v..Butts, 388-US. 130 ...... 10,-11, 19, 20

Evans v. Newton, 382 US. 06. Ses aes we a get ibe 12, 13, 14° pf

Gallagher v. American Legion, 1 154 Misc. 281, ~~ are: S

277 N.Y.S: 81; aff'd, 242 App. Div. 604, 7%. : fy

2LNYS. 1012 erg. | : os

_ Hurwitz v. Directors Guild of America; 364 F.2d 67 eeee cae en: 1

| (C.A. 2), cert. denied, 385 USS tts ITF

- Hyson y. Dodge, 198 Va. 792, ns thy SEE TR oa emanate ba

Jones v. Alfred Hi: Mayer Co., No. 645, October Term, sa ee ay

certiorari granted, Decemiber 4, 2 nee ‘10,11

‘Kornegay v. City of Richmon 85°Va. 1013, ae ice: echoes

AVS E2E 4S eee ae piece ected eee Be,

Lauderbaugh-¥. Gtinine: 409 PA: 351; 196 A24 39.0026 13

1 Aootaibard v. Louisiana, 373 U'S. 267 ............ rcereas re

» Maiden v. Atkins, 4 N.Y:24 283, MIME. natch: DW. .

Marsh v. Alabama, 326 US. ep See peeeees 12, 13, 18

| ‘ ;

Meyers v: Lux; 76 S.D. 182, 75 N.W.2d 533 oo aunt. Nie 12.

Mitchell v: International Ass’n of Machinists, - coe

_. - 196 Cal. App. 2d 796, 16 Cal. Rptr. 813 ..:.....:.. 1819. |

. «Morris v. Hussong Dyeing Machine Co., 81 NJ. sy ee ee

+ © 86 Atl 1026 3.00. SA ae ne tige 12

Mountain Springs pete Wilson, 81 NJ. 1. Super. 564, ine

‘196 A.2d 270. ceccka wa a éte ah Rasen caaes sees 47 .

Ra N.A:A.CP. v7 avast, 357 us,409 Pg ee MO Rane ;

NAACP. v. Alabama; 377 US. 288 ........ ee ee

__. New York Times Co. v. Sullivan, 316 REE Oe ~ 2 zs

_/ Partot v. City of Tallahassee, 381,US. 129 ........... ete ee

‘Public Utilities Comm’n v. Pollack, 343 US. 451° ........: 13. 0

_+ Reitman v. Mulkey, 387 U.S. 369 ...... faces DBD ae

‘Rice v: Sioux City Memorial’ Cemetery, 349 U.S. 70 vawedss. 2.

- Shelley v. Kraemer, 334 US. 1 ......... aare rete ae

. Shuttlesworth v. City of Birmingham, 376 U.S. 0 EER: 24

"> Simkins v. Moses H. Cone Memorial Hospital, :

323 F.2d 959 CA, 4), ae US. 938 ..... 4 1B

ows : ; ene

(C.A, 4), cert. denied, 352 US. 838.6... :

Terry,$+-Adams, PTE his Pi's00 hs v8 123

Tuckérton Beach Club y. Bender, 91 NJ: Sane. 167,

IG oe a ok Bo Seo dnc a oa da's cae, 17

Mla. 0 US 98 oa tacit secs 24

Wood v. Vaughan, 209 F. Supp. 106 (W.D. Va.), : a)

aff'd, 321 F.2d 474 (CA. 4: Pete kisesns er eR eS 3 14

f Constitutional and Statistory Provisions: ae,

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

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

28 USC. Sc. 1257(3)_ See stics a. Cee 2

42 US.C. Sec. 1982-22... ee. paises. Seer ee:

“Colle of Virginia; 1950 (1949 ed.), Sec. SN sch kwhs cack ae

Code of Virginia, 1950 (1964 Replace. Vol), ° :

OO ONE 86865 ha Pais Woh 655 seks coec sec, -12

Code of Virginia, 1950 (1964 Replace, Vol), ess

> PD hs Fee ka ho dc isa ceg dec cesSiccl, 12

~ "Rules of the Supreme Court of Appeals of Virginia,

(1957 Replace. oii } 602 . . enh ~ Fg 20-21, 22, 23

Misceltanecsis: “Ss

Evening Star (January 20, We Mabatencies Tian akae ve, 1S:

Practical Builder, Vol. 29, No. 2 (February 1964) eeewesces” 1B.

Urban Land Institute; Open Space Communities in

rs the Market Place (Tech. Bulletin 57, 1966} ....:. TTT rer 15 _

Sarre 12, ssid wee etpeeseees weeks ee |

{ ee,

CeO Ty TPR

Staub v City of Baxley, 355 US. 313-2. 0.2.0... .....0. 21

ae Tate v. Department of Conservation and Divelopineat:

133 F. Supp. 53 (E.D. Va.), aff'd, 231 F.2d 615.

Rule 5:1, Sec. 3(f), 2 Code of Virginia, 1950

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_ .\. SUPREME COURT OF THE UNITED STATES. -

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- PAUL*E. SULLIVAN, ET AL., Petitioners.

: Yo Sera }

LITTLE HUNTING PARK, INC., ET AL.

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

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LITTLE HUNTING PARK, INC.,‘ET AL..

|__| PEFITION FOR A WRIT-OF CERTIORARITO THE

"SUPREME COURT: OF APPEALS OF VIRGINIA .

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Petitioners. pray that a writ of certiorari issue ta 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. Doto-

‘ §. Leroy Lennon, Raymond R. Riesgo, Mrs. Marjorie Madsen, .William J.

‘ Donohoe, Oskar W. Egger, and Milton W. Johnson, individuals who

a 4

, - |

OPINIONS BELOW sts

The siemens pone of the Supreme Court of Appeals

of Virginia (App. A and’B, infra, pp. A-| -B-1) are not re- °

“ported. ‘Fhe 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-1-C-3), and.is réported at 12 Race Rel.

. 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-1-D-3);

a is not. reported; the decree was entered May 8; 1967.

on ?

J URISDICTION |

The orders of the Virginis Supreme Court of Appeals were .

entered on Deceinber 4, 1967... The jurisdiction of this Court.

is invoked under 28.U.S. C. Sec. 1257 o. /

QUESTIONS PRESENTED

OG.

A Virginia corporation organized for the-purpose of oper-:

_ ating a-community park and,swimming pool Peyfilts a ‘shgre-

holder to assign his share t® an eligible person—one who

resides within a specified geographic area—subject to approval ae |

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 sotet, because.

the assignee was a Negro. When the shareholder protested ~

the | directors’ discriminatory racial policy and sought to

*“¥everse their fefusa to approve the assignment, the directors

‘expelléd him. [he questions presented are: | 2

* 1. Does it violate the Fourteenth Amendment to“the

Constitution of the United States for a. Corpor ion which

operates a community park and swimming pool to ggfuse to

permit a person wha is otherwise eligible, to use its facilities |

~: solely on the basis of ‘race?

2. Did the state court yiolate the Fomrteeatt Amendment

by giving validity to the racial restriction on. the use of the

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So gr OP ET MORRIE MS 5 Oven Pear. ee 9 at — 9s ne

ad - ‘

: “community park _ swimming pool operated by. the corpo-

' . ration? Gicaes

3. Weré the free ‘speech protections of the First and Le

Fourteenth Amendments to the Constitution of the United —

, States violated by the corporation’ 4 expelling a shareholder eee

ho dissented from its racial policies, and by the state

court’ s scare the expulsion? : se

- CONSTITUTIONAL PROVISIONS Riis.

| The | provisions of bre. ¢ Constitution of the United States

involved are ‘the First Amendment and Section 1- of the

Fourteenth Amendfnent. They are as in + iain E,

infra, p. E-1.

STATEMENT. i (si

- “Little Hunting Park, Inc; —its purpose and manner —

eae. operation.- - ‘

‘Little Hunting Park, Inc: was is iliieiiali in 1954 under

_ the Virginia Non-Stock Corporation Law? for the purpose,

"as set forth in its certificate of incorporation, of organizing

‘and maintaining “a community park and playground facili-

ties” for “community recreation’ purposes” (T. 184-185).?.

**Pursuant to this object, the corporation owns land on ‘which

it has built and opegates a swimming pool, tennis courts and

- other recreation facikties for the. benefit of residents. of the

subdivisions known as Bitcknell Manor, Beacon Manor, White

‘Oaks, Bucknell Heights and@ertain adjacent neighborhoods

in Fairfax County, Virginia (a 186, 228). The corpora- .

tion’s by-laws provide that shares maybe purchased by°adult |

persons who “reside in, or who own, or’ who have gwned

housing units” in one of the specified subdivisions (T.°186).

a”

x, ‘ : ; .

*Section 13-220, Code of Virginia, 1950 (1949 ed.).

Ju” refers to the transcript in the Sullivan case. “F.T.’” refers to

‘the Freeman transcript.

Bair

"A share entitles all persons and dependents i in the immediate

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_ family of the shareholder to‘use the corporation’ s recreation

issuance and assignment of shares are subject to the approval

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 © ae

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 ranges from _

to 7 years (F.T. 42-44). Seen ,

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 vg

_ Little Hunting Park may obtain temporary assignment of a*

share. However, an assignment may only be made from

landlord to tenant. (T. 187, 200)* _

The corporation’ S by-laws have eas provided that the

m ~ bd 5 . |

4 Regardless of whether the swimming pool and park facilities are.

utilized by the shareholder or assignee, the owner of a share is obli-

.gated-to pay.an annual assessment in order to keep it valid. (T. -9-10,

199-200).

bvcors orm

. of the wine of divecwniss {7. 25, ‘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 duripg that period, but there is no evidence .

that this was other than because of the individual’s failure

- to Satisfy the geographic ra requirement of the by- —

laws (T. apres :

B. The corporation’s directors refuse to approve the

assignment of Paul E. Sullivan’s share. because~the

assignee,” Dr. T.'R. Freeman, a and his family, are.

Negroes.

van and his family lived in’ a house which Sullivan owned and

continues to own ander Road in the Bucknell Manor

subdivision (T. 7). y 1955, shorily 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

ofthe 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 shire” (T. 10).

On February 1, 1965, Sullivan leased the faa Road |

premises for a term of one year to Dr. T. R. Freeman, Jr.

ae ak ik oat a Riana dala, | lated ae

. * F

* 7

- . : -—— *

. . *- ; .

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 9

corporation, since he is an adult, and the house that he leased ae

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 thesUnited 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 «5 — a as

the. assignment of that share (F123. 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 qn May 18, _

- 1965, refused to approve the assignment of share No.:290 « :

to Dr.. Freeman, ‘because ‘he and the members of his family’ - 4q

‘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, notifyifig him a

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). a

-C. The corporation's directors expel Paul E. Sullivan

because of his criticism of their refusal to approve ~

the assignment of his share to Dr. T. R. Freeman,

Jr. on the basis of race. 7.

Sinbeien, upon learning of the directors’ iinineeoeal of his.

a ‘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; ‘{63- 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 th the board’s offéer

_____to-piirchase share No. 290 which he had contracted to as-

sigh to Dr. Fréeman (T. 18-19).

Following this meeting, Sullivan and Dr. Piciesac, who

was also his fellow parishioner, sought the. advice. of their

priest; Father Walsh, who suggested that the board ‘might

reconsider its action ‘if the directors had an opportunity. to _

meet with Dr. Freeman and consider sis casé 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 ith 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 ¥1, and decided thatstfiere _

*° . - . .

2 ow - “7 : ;

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° . . 2 ° .

. 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 meinbers, ete.” *y (T. 29-31, © ;

ee OT ay a |

- Sullivan was told of the board’s. action ina ‘letter from.

President Moore dated July 7, 1965, which: also informed °

him ‘that he would be given a “‘hearing” by the directors on are

July. 20, 1965 (T. 2931, 206). Because the directors refused ane

. to postpone, thifphearing 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

eee Ek. 52-53) Settlement of the action was reached

\upon the corporation’s agreeing to postpone the hearing to.

ugust 17, 1965, and. to furnish.a detailed statement of. the

_ charges against him (T. 53). A statement spécifying the

. /~ alleged grounds for Sullivan’s expulsion v was thereafter fur-

ee 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 ae .

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, 129-136, 131, 286-287, 289). On August 24, aS

- 1965, the board met, and unanimously: voted to expel Pe

Sullivan (T. 228). By letter of August 27, 1965, Sullivan

was notified’ by President Moore of his expulsion, and he .

oa;

. J Phe 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 —— Sullivan (T. 29-31, —s

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ELLE GEL WIE OGL PRD LIAL IRIE MG EGE LBL az WA REL HES ES ee ae a ees a ' > Spare REZ emery SR : HTTP t<

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was tendered the then current “‘gaie price” of his two diein,

plus prorated annual assessments on the two shares, the total —

-amounting to $399. 34 3 55, 173-174). -. y fee or eee er

-S Relief sought

. Petitioners seek:an order declaring invalid the _ 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-

4 pelling full reinstatenient 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 Sulfivans for Paul Sullivan’ S wrongful expul-

sion from the association. 6 )

‘E. The ieee 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 i in the lower court, argued~—_

- further in a memorandum te the court (pp. 22-23) that, by

its operation of a amass recreation ews Little Hunt-

Sin June 1967, Dr. Freeman ‘and the anions of his family | left

the United States, and they currently reside in Pakistan where Dr.

Freeman is Assistant Agricultural Attache i in the United States Embassy.

Hence, injunctive relief, as sought in the court below to compel approval

of the assignment of share No. 290 to Dr. Freeman, is no longer ap-.

propriate. |

OE NE REIT SRT UP RI ah a tak cl ate ioe Sain - ae 4

10..

ing Park, Inc. exercises a public function which brings its ,

activities within the purview of the Fourteenth Améndiient:

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 i 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 diréctors of Little, Hunting Park, Inc. were “public

figures”’ i 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 hier the directors’ action in expelling

: Sullivary from-the a tion merely because he exercised .

_ his right to speak out critically concerning ‘their discrimina-

‘tory racial policy” (Pet. for Appéal, P. 34). :

- The trial court, in dismissing both inside 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 thg 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 — for appeal, thereby

denying the oe. : ;

REASQNS- OR GRANTING THE WRIT. - S

ae priri¢ipal issue in this case is whether a private cOrpo- .

_ ration performing a community or public function may con-

duct its affairs on # racially discriminatory basis. This same

issue is now before the Court i in Jones v. Alfred H. Mayer.

Co., No. 645, October Term, 1967 (certiorari granted, De-

cember 4, 1967).’ 7 In Jones a real estate — con-

7 The Jones case also presents the question ws the Civil Righ.s _

Act of 1866, 14 Stat: 27, 42 USC. Sec. 1982, ex waeute discriminz-

— — |

FEIN IOSI LCN ES Serer "i Fa u RAE Gee * : J SRN Rerd

strapting / a ” subdividion of ipproximately 100 projected

homes—here a community recreation orporation serving

nearly 600 shareholders and their families—pursued- a policy

~ of racial discrimination which served to deprive Negroes ot ..

community facilities which: were available to white persons.

In.both cases, the corporations offeféd their facilities with-

out regard to the personal characteristics of prospective

purchasers, with the single common exception of race. In

the instant case, of cdurse, 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, i.

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 oi 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 anne that. Little Hunting vark, ‘Inc. was organized and

_ incorporated for the express purpose, as stated in its certifi- ‘

cate of incorporation, .of operating “a community park and

9°

a ~

tion ‘in, the sale or lease of property. Petitioners herein did not. seek

relief-on the basis of 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 of 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 failuye of petitioners to rely onthe 1866 Act asa

ground for relief does not preclude it as a basis for disposition of this

case, for the § gmere failure”. to raise a constitutional question “prior

to the announcement of a decision which might support it cannot

"prevent a litigant from later invoking such aground.” Curtis Publish-

ing Co. v. _— supra, set US. at ASa-245, and cases cited.

“a

1s A il tai anal aiar lk ’ stil iss

aia facilities” for ¢ ‘community recreation pyrposes”

* (TF. 184-185). Pursuant to this object it operated 1 park .

‘ and swimming pool for 11 years; makjng 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 Teal estate

developers. and _ churches in, the community were able

purchase shares. It_was not until L965, whemrthis case a

that ‘there was a departure from the corporate p

* when it became apparent that the park. was open to a ‘

‘one in the community, except Negroes. p

am trial cofirt’s finding that Little Hunting Park, Inc. is

“private social club” is not dispdsitive of the issues in. this |

‘case. 8 As this Court has made: cleat, 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 vy. Newton,

. supra, 382 U.S. at 299. As thie Court pointed out in Marsh:

+ De Alabama, 326 U.S. 501, 506: . °

Ownership does not always mean absolute dominion.

The more an owner, for his advantage, opens up his

| SIndeed, it is doubtful whether the ruling i is correct under Virginia

law, for. the State’s Non-Stock Corporation Act require? that the jqual-

ifications’ and rights of members be set forth in the articles of incor- — -

poration, Sec. t3.1-211,; Code of Virginia, 1950 (1964. Replace. Vol.).

See also, Sec. 13.1-231 (d). The corporate charter of Little Hunting

Park, Inc., however, grants io power to the directors to create personal ;

- or racial qualificatjons for riembership. 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 of its facilitie® to certain classes of resi-

. dents of the comm@nity-than‘it would ‘permit them to divert corpo- °

rate property to other than recreational purposes. See Meyersw. Lux, -

_ 76 §.D. 182, 75 .N.W. 2d 533, 536; Morris v.cHussoyg Dyeing Machine

" Co., 81 NJ. Ea. 256, 08 AU. 1026, ——

2>-

ees

ropes for use by the. public in general, the more.

do his rights become circumscribed by. the statutory

cand’ co stitutional rights of those who use it.

| Accéedingly, 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 ,

<e operated in disregard, of the Constitution. . Ibid.? We submit’.

_. that Little Hunting Park, like Baconsfield Park which was

the subject of Evang v. Newton, performs the public func- ,

_ tion of: -providing mass recreation for meribers of the com-.

~ munity and: ‘accordingly, asthe Court there held, may not

be: operated « ona racially discrininatory basis. ”

9 Accord: Terry v. Adams, 345'US, 461; Public Utilitie eg Conon .

v. Pollack, 343 U.S. 451; Simkins v. Moses H..Cone Memorial Hospi-

tal, 323 F.2d 959, 968°(CA 4), cert. denied, 376,US. 938.

101n the Evans case the Court found it unnecessary to reach the

_ question of whether Georgia; thrqughy series of Iggislative enactments,

had facilitated or’ encouraged the establishment of segregated parks.

382 U.S.at: 300-301, n. 3. With regard to the instant case; it is to be

noted that for y 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 of constitutional and “statutory provisions has |

. been adopted over, the years which inject racial discrimination into —

many aspects of public’ and private life; | The “official command” td -

"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 coertive

- effect as an ordinance.” Lombard v. Louisiana, 373 US. 267, ae

and see, Reitman v. Mulkey, 387-U.# 369, 380. The index t to the

- Virginia Code contains three of references to constitutional and~

~ Statutory Provisions requiring segregation of the races. Although some

of these en ts have been. held by the coifts to be.unconstitu- -

‘tional, the idity - of 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 of the State to be heeded

oy its citizens. For discussion’ of the cm ses policy of maintain-

. . -

, ° ° /

‘ . ai.

, - as seems a

wey Wk A PRET IE e OT OT RTD . Raprey mal oe nied =— . “s*

i > * . iw

q : F .

. of providi

_ the resulting importance of parks and swimming pools. such -

i cern ae

2. The-impact on the community of the ‘racial policy gt

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; thg

“public function” of providing “‘mass recreatign”” (Evans v.

Newton, supra, "382 USS. at 302) through. community. swim-

ae ming pools Mas been assumed by privately 6rganized'recrea-

tion associations, such as Little Hunting Park, Inc.’ Be- -

cause of the “abdication” by local municipalities of the

“traditional governmental function’; (Mulkey’ v. Reitman, 50

Cal. ee: 413. P.2d 825, 832,tiff'd, 387 U.S. 369)

recreational facilities for’ tocal- residents and

as those operated by Little Hunting’ Park in fulfilling this

community need, Negroes obviously will be discouraged from

moving gto a neighborhood | where they’ are’ excluded from =.’

ing Segregated park and recreational facilities in Virginia, see Tate v.

ie Department of Conservation and Development, 133 F. Supp. 53, 55-

“—

Church) wi

57 (E.D. Va.), aff'd, 231 ¥.2d 615 (C.A. 4); cert. denied, 352 US.

838; Wood v. Vaughan, 209 F. Supp. 106, 111-113 (W.D. Va.), aff'd, |

321 F.2d 474 (CA. 4).

+ “In the Northern ‘Virginia metropolitan suburbs ‘eiiialia of J Ar-

- lington and ,Fairfax Counties, and the cities of Alexandria and Falls .

ith population of approximately 690,000 people, there ° -

are only tw (municipally owned swimming - -peols and one municipally

gwned lake (T.. 138-139). By contrast, in this same area there are

nearly 50 community swimming pools of the same type as pittle

‘Hunting : Park. ‘Indicative of the role played by these pools in meeting ©

the recreational needs of the Washington, D. C. suburban population; .

_is the fact that ih the Suburbs of’ Maryland and Virginia theré are a

total of approximately 105 pools of | this ee. The Washington Post,

+P A20, June 12, 1967. ln

Md o* s : ; ! . ve : 4

BS -, / ye ae ¢

, —” ares. ot z ~ ney @, . ‘

. * « a 4 ™ . - # s .

‘. , es © . al

’

, ° -

. 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./?

_ It is generally ‘recognized that in recent years the availe-

bility of a community swimming pool and recreation facil-

ity is a major factor. enhancing the desirability and yalue of

‘residential property. 13 Examination of the real estate adver-

tisementsin 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, whena

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 residenee-which must be borne by

12Since Littie; Hating Park, Inc: is not obligated to siesta

Gutstanding shares (T. 193%; a shareholder: stands the best chance: of

’ selling his share to the purchaser of his house, Similarly, since a. share’ ~

assignment can only be made from landlord to tenant and an annual

_ assessment must be paid-to keep 2 a share valid, a landlord must rent

his house to a white/person in order to obtain reimbursement - his

assessment or else suffer financial Igss.

43 Expert testimony to this effect was offered by. wattilaians 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).

i 4«1T] he community swimming pool is considered by most build-

incomes.” 29 Practical Builder No. 2, p. 94 (Feb. 1964) (T. 148,

Plaintiffs’ Exh. 29). In one 12-pape advertising supplement in The

_ ers a8 one of their most ite people of all ages'and

(Washington) Evening Star issue of January 20, 1967, there were over

50 adverti nts for apartments and houses in’ ‘anhich ‘there was

prominent mention of the pool facilities (T. gig Plaintiffs’ Exh.

30). és .

one of the parties @§ 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 réquire .

. ’ 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. uhable 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 shiows 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 ama 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 ouglas).

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

| tis further significant-that the instant case, like Shelley

-y, Kraemer, involves an agreement voluntarily entered into

by a white property owner and a Negro attempting to acquire

wate

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 y, Maryland, supra, 378 °

U.S. at 331 (dissenting opinion of Justice Black) (Emphasis

in. original. y..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 ee. 8

‘ 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 “‘conditioh. 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;/> 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 US. at 254, a8.

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 ihjunction by the proponent of such covenant and

‘ its assertion as a defense.” Spencer v.¥lint Memorial Park

eit,

Nand

15 See Lauderbaugh v. Williams; 409 Pa. 351, 186 A.2d 39; Moun-

tain Springs Ass'n v. Wilson, 81 N.J. Super. 564, 196 A.2d 270, ‘275-

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

$29.

COE

- 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 satire ioe —* 349 U.S.

70, 80 (dissenting opinion). es vee

3. The directors’ arbitrary action in expelling Sullivan .

from: the corporation because of his yoiced 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 tt operates. Both of the shares that he

owned have been’

the ‘community sérved 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.’

16Courts have frequently been guided by the First Amendment in |

- protecting the right of dissent within voluntary associations. See, e.g.,

‘+ Crossen v. Duffy, 90 Ohio _ ‘252, 103 N.E.2d 769, 778; Mitchell

SL OEE LEONE EA EE OEE IN RT AG I AE

| oked, thereby impairing the marketa-

bility for rental or sale of the two houses that he-owns in

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 Go. v. Butts, .

supra, 388-U.S, at 163-164. As-he observed, in the urbap-

ized society that we know today: .

In many situations, policy determinations which h tra-_ ition isons

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. e

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 ¢ndicaté 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 Ass'n of Machinists, 196 Cal. App. 2d 796, 16 Cal.

. Rptr. 813, 816-820; Madden y. 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,

aff'd, 242 App. Div. 604, 271 N.Y.S. 1012; Hurwitz'v. Directors Guild

: of America, 364 F. 2d 67, 75-76 (CA. 2); cert. Conted, 385 US. 971.

IERIE LIN ALLELE SCROLLS IE i ll alla at

BS FOR RNA LO aM A reer ra S PPA PRAT Te Te

» 2 7 «

directors’ action in expelling Sullivan from the association

merely because he refused to acquiesce in their discrimina- 5"

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 Fitst Amendment.: This clearly is :

State action falling within the ambit of the Fourteenth 7 ; ,

~ Amendment. “The test is not the form i in which state power

has been appijed, «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 ne Co.

__y. Butts, supra, 388 U.S. at 146-155.

In addition, to permit the state court to sanction Sullivan’ ‘

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

ai 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 y. 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 pg

able opportunity to examine the original or ¢ true copy of

_ it” as required by Rule 5:1; Sec. 3(f) of the Court.

- view. of the substantial constitutional rights asserted by peti-

I7Rule 5:1, Sec. 3(f) of the Virginia Supreme Court of Appeals

provides that as part of 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

3 4 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. of 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, 297; Staub v. City of .

' Baxley, 355 U.S. 313, 318-320; N.A.A.C.P. v. Alabama, °357

U.S. 449, 454-458. . | : 5s ee

eet

_ 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 secrétary; the judge later ruled that —

P eee e y H

final judgment. The ‘Tule also states: ‘Counsel tendering the tran-

script . ,. shall give opposing counsel reasonable written notice of the, ~

time and place of tendering it and a reasonable opportunity ‘to exam-

ing the original or 4 true copy of it.” . 2 Code of Virginia, 1950

{1957 Replace. Vol.) 602. The text of the provision is contained

infra, p. E-1-E-2.

A LPN AS TEESE RPL AW TERE OG at ac aii a | NS a oat ican siecle iad

4 : .

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 ined 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 decidons ie

of the Virginia Supremé 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

to the trial- -judge, but rather the reasonableness of the op-

portunity afforded counsel to examine the transcript before |

it is signed by the jutipe. - 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 of 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 affortied reasonable -

opportunity to examine the transcript, and to make

objections théreto, if any he has,-before it is signed

by the ‘trial judge; the orgect of reasonable notice —

will haye been attained.

It is thus clear that even if insufficient advance notice — |

‘ 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 i

_ 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 concurréd therewith. The Virginia

Supreme Court of Appeals plainly has ignored its own deéi-

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

; ae = ?

issue[s]”-are properly before it. Williams v. Georgia, 349:

U.S. 375, 389; Shuttlesworth v. City of. Birmingham, 376

Rs ie ,

~ CONCLUSION ae ee

3 ° _-

For the foregoing reasons, this petition | for a writ” of

“certiorari need be granted. ,

| " mbcoinctihatty submitted, -

-. Allison-W? Brown, Jr. ~

) Suite 501, 1424 16th Street, N. W.

ees _, Washington, D. C. 20036 .

_. Péter Ames. Eveleth

217 Fifth Street, S. E.. .

! : Washington, D. C. 20003

‘Robert M,- Alexander

~ 1829 Columbia. Pike

Arlington, Virginia 22204

Attorneys for Petitioners:

Jack’ + Onsenbali ts cet

James M. Nabrit, III _

10.Columbus Circle: ce

Of Counsel

March, 1968.

/ * APPENDIX A

"- VIRGINIA:

| In the Supreme Court of Appeals held at the. Sevens: rt of

_ Appeals Building in the nad of Richmond on Monday the 4t \ day

. ? December, 1967. | as P

The petition of Paul E. Sullivan, ‘Flora ¥. Sutivan, a

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: i ;

father and next friend, for an appeal from a decree entered :

by the Circuit Court of Fairfax County on the [2th 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, havigghhons Bi

maturely | considered and a transcript of the reco “Of the

. decree aforesaid seen and inspected, the court betrig of opifi- ‘a

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 té examine the original

or .a true copy of it (Rule 5:1, §°3(f); Snead v: Common-

wealth, 200eVa. 850, 108 S.E. 2d 399), d doth — said pe- —

tition and refuse said appeal.

| Sf ees

eno eine ' < Teste: a” SAS) anaes

Clerk

ee ee ee

: & : ; | . . B-1 .

oa eae

‘ APPENDIX B_ ”

VIRGINIA: , Cheep ager ee:

In the Supreme Court wv. Appeals held at the Supreme Court of

Appeals Building in: the City of Richmond on asta the 4th —

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 maturély 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 mannér provided by law in

that opposing ‘counsel was not given reasonable wiitten 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 8 3(f);. Snead v. Commonwealth; 200°

Va. 850, 108 S.E. 2d 399), doth — asta te and |

refuse said appeal.

._.. A Copy,

Teste:

_ Clerk

i aa iain

TEN 8S

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APPENDIX C

. ; = ,

SIXTEENTH JUDICIAL CIRCUIT OF VIRGINIA

PRINCE WILLIAM COUNTY FAIRFAX COUNTY ALEXANDRIA.CITY

Fairfax County Courthouse,

Fairfax, —— 22030,

April : J 1967,

1829 Columbia Pike,

_. Arlington, Virginia. 22204

Mr. John C. Harris,

1500 Belle View Boulevard, :

Alexandria, Virginia. |

Re: Sullivan v. Little Sauiinie Creek Park;

In Chancery No. 22751.

Gentlemen: — fonts ‘> ?

I find for the Selendeiute 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 as

_ conclusive on this: point. This being so, the Court’s power

to review the.action of the Board of Directors is limited. I

find no eason to set it aside. The Board acted within the’

powers conferred on it by the: By-Laws, and there was am-

. plé-evidence to justify its conclusion that the complainant’s

_-acts were inimicable to the Corporation’ s members, and to

the Corporation. |

. Ldo not believe ‘property rights are tiwobved 4 in this case

“to : henna extent. The number of memberships i is in-

». cae C2

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-"

ere 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, — 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. ° -”

. ie

Very truly yours, :

jp ae 7 James-Keith.

JK:elc | ws

Copy to: |

Mr. Allison W. icone, i. \

Suite 501, 1424 16th Street, N. W.,

sh, Ge Se ai

VIRGINI i:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY. i

po E. SULLIVAN, oo o . |

: Plaintiffs,

| ‘vy. IN CHANCERY NO. 23751.

LITTLE HUNTING PARK, INC., et al.,

; Defendants. .

oe |

: DECREE pes

_ 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 soojal-

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 in the complainant _

be denied, to which ruling counsel for complainants except.

THIS DECREE IS FINAL. sya:

ENTERED this 12th day of April, 1967.

James Ktith . ;

Judge : “

— - Book No. 120, page 318

° o

eer ae

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

- Mr. Robert M. Alexander, ao Pe

° 1829 Columbia Pike, Dee

APPENDIX D

SIXTEENTH JUDICIAL CIRCUIT OF VIRGINIA

PRINCE WILLIAM COUNTY FAIRFAX COUNTY ALEXANDRIA. CITY

Fairfax. County Courthouse,

Fairfax; Virginia, 22030,

April 21, 1967. -

Arlington, Virginia.

’ Mr. John C. Harris,

1500 Belle View Boulevard,

Alexandria, Virginia.

Re: Freeman v. Little Hunting Park, Inc:; °- : os

In Chancery No. 22752. Bro ts

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 .

is 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 - relief prayed for will

be denied. , he

‘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 : . Be he ,

Copy to Mre Allison W. Brown, Jr. - os 3 | ys

Se ee |

“VIRGINIA: gee

“

"IN eis CIRCUIT COURT OF FAIRFAX LOUNTY

T. R. FREEMAN, R., et al.,

Plaintiffs,

| i: oe eee NO. 22752 :

LITTLE HUNTING PARK, INC.,et al.,. |

Defendants. |

DECREE Seca : -

_ THIS cause wiek to be heard this 12th day of pony 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 cgniplainants pave been violated a

and they do not come within the — of the Civil — A ¢

Rights Act, it, -is, therefore, ao

ADJUDGED, ORDERED and DECREED: that the relief

requested by the complainants be. denied, to which see

oe counsel for complainants except. -

+. eo

- THIS DECREE IS FINAL.

_ Entered this 8th day of May, 1967.

* James Keith *

3 \. OR ee

’ SEEN: - \:

John Chas: Harris «|

Counsel for Defendants

SEEN AND EXCEPTED: .

Robert M. Alexander Sars ae

Allison W. Brown, Jr. os. a

~~ Peter Ames Eveleth -

By Robert M. Alexander _

. Counsel for Complainants

arene Ne eT ES ORD

a 5 RE TEI

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_ APPENDIX E

CONSTITUTION OF THE’ UNITED STATES

oe _ Amendments

Afticle I.

Congress shall make no law seapectioig ¢ 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. |

7 e.@-.@ -. — "

Article XIV

Section 1. All pérsons‘ 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 immunitiégef 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 juriediction the equal protection of ‘the

laws. ,

a in So ae”

~ RULES OF ‘THE SUPREME COURT OF — pea

OF VIRGINIA.

Qa.

Rule 5:1... The Record on Appeal

Sec. 3. Contents of Record.

(f). Such a transcript or + statement not signed by counsél

. 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.

a en ts —

“a

It shall be forthwith delivered to the clerk who shall certify

“on it the date he receives it. Counsel tendering the transcript

P .

and ‘the date it; was signed by. him.

. or statement shall give Opposing counsel reasonable written

- Notice of the time and place of tendering it and a reagona-.

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

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.