# Petition for Writ of Certioraric — Sullivan v. Little Hunting Park, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1143%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certioraric - **Published:** January 1, 1968 - **Citation:** 392 U.S. 657 ## Text Av *§ * 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 “ 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 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 . - — > , . o . . - e en . 2 * . * * . - . . * . 6 . > - ‘ . - . . ad . . . . X e°* %, ° \ > os . , 7 \ ’ e . . ° ‘ ° a - ‘ . . a oe -, Were directors of said corporation at times material herein. - - _ .\. SUPREME COURT OF THE UNITED STATES. - ee etotiag Tere, 1982-- Been ~m Ss. 1A a . , - ‘2 ? No. es z an | ’ - PAUL*E. SULLIVAN, ET AL., Petitioners. : Yo Sera } LITTLE HUNTING PARK, INC., ET AL. E } en * : Tp .?.* , ; T. R. FREEMAN, JR., ET AL., Petitioners: | ae + . 2 LITTLE HUNTING PARK, INC.,‘ET AL.. |__| PEFITION FOR A WRIT-OF CERTIORARITO THE "SUPREME COURT: OF APPEALS OF VIRGINIA . e é 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 3 M. 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 ee \¢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 ? 1 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? eB 2. Did the state court yiolate the Fomrteeatt Amendment by giving validity to the racial restriction on. the use of the «© 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). be 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 7 "A share entitles all persons and dependents i in the immediate Spare REZ emery SR : HTTP t ® . - 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 J \ il 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 , * . iw q : F . \ t* . 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 ’ , ° - i) . 1 . 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 ws 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 . ee 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 17 property, with attempted intervention by a third party seek- ing to prevent performance. Shelley and Barrows make clear that where, as here, “both parties are willing parties” to such a contract a state court may not give legitimacy to the. effort to defeat the contract “‘on the grounds of. the race or . color of one of the parties. ”- Bell 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 r) 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 oe 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 ~~ 19 Particularly germane to the circumstances of this case. is the concurring opinion’of Chief Justice Warren (writing for a majority of the Court) in Curtis Publishing 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 « 20 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 4 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. me A LPN AS TEESE RPL AW TERE OG at ac aii a | NS a oat ican siecle iad 4 : . 22 the tender of the transcripts was made on Monday; June 12, the day that he received them. Meanwhile, motions to cor- rect. the two transcripts were served on-Mr. Harris, along with the notice that they would be brought to hearing be- fore the court on Friday, June 16, the next Motion Day. On Monday. morning, June 12, the trial judge acknowledged: to Mr. Brown over the telephone that he had received the transcripts and the motions to correct the record, Pursuant to Mr. Brown’s ‘request, he agreed to defer signing: the tran-.. scripts until the motions had been acted upon. On Friday, - June 16, the,judge stated in court that the transcripts’ had. been available in his office for.one week, since the preced- ing Friday, for examination, but since it appeared that Mr. Harris -had not 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 notice. to opposing counsel before tender of the transcript © to the trial- -judge, but rather the reasonableness of the op- portunity afforded counsel to examine the transcript before | 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 New York, N.Y. 10019 ©. © = * « Of Counsel s 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 ' ? 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., Washington,:D. C. 20036 © sh, Ge Se ai VIRGINI i: IN THE CIRCUIT COURT OF FAIRFAX COUNTY. i po E. SULLIVAN, oo o . | : Plaintiffs, og | ‘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 : “ . '__ Entered in Chancery Order © — - 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 Da od 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. . 5 e y, | ’ ¢ > is) — < Ps ‘a _ 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. © @.@ 4 :. : ae (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 a 4 * eo. 3m :./ yn ee - - ‘ 2 ot, . oN . ' 1. Pte .@ ‘ ., +\ aD Vis « i ° ° : ; m i ¢ ’ ‘ “ Ais o : ete / Peed 4 a, e Bir = . i * . \ J ; ae \ nd - X . / eo \.4 - ¢ . ° - ‘ . ’ , fa ‘ ” * /a F ‘ f , / . . i 4 . ° , a . ? » ce Be _ - me --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1143%3A1. Public record. Not legal advice.