Brief in Opposition to Petition for Writ of Certiorari — Sullivan v. Little Hunting Park, Inc.

@UPREME COURT. &. &

SUPREME COURT. OF THE. UNITED STATES

- October Term, hace

No. 1188

PAUL E. SULLIVAN, ET AL., Petitioners”

_ LITTLE HUNTING PARK, INC.,; ET AL. -

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

Vv

LITTLE HUNTING PARK, INC., ET AL

BRIEF IN OPPOSITION TO WRIT

OF CERTIORARI TO THE

" SUPREME COURT OF APPEALS OF VIRGINIA

2 —

JOHN CHAS. HARRIS

1500 Belle View Boulevard

Alexandria, Virginia 22307. —

Attorney for Respondents :

Cont

Questions Presented i

Statement of Facts :

‘Authorities :

- 2°” Conclusion aan

| CITATIONS

‘Cases: |

Cedar Works v. Harper, 129 ‘Va “481, £06. SE 516

Clinch Valley Lumber Corp. v. Hagan Estates

| 167 Va 1, 187 SE 440 .

Cook v. Virgini Holsum Bakeries, hiisiainasiecttied

‘207 Va 815, 1 SE 2d 209

Hyson v. Dodge 19 Va 792, 96 SE 2d Lol

N.A.A.C.P. v. Alabama, 357 U.S. 449

: Ocean Accident Corp v. Haley

158 Va 691, 164 SE 538

Snead’ v. Commonwealth

‘-200 Va 850, 108 SE 2d 399 ad

"3 Staub v. City of Baxley, 355 US. 313: .

Tyson v: Scott, 116 Va 243; 81 SE 77

Virginia Home for Incurables v.. Coleman -

164 Va 230, 178 SE 2d 908

STATUTORY AND CONSTITUTIONAL:

. Rules of Court, Supreme Court of Virginia

Bil § 3 (f)

| First Amendment, United States Constitution

ourteenth Amendment, United States Constitution

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SUPREME COURT OF THE UNITED STATES

October Term, 1967. :

No. 1188 |

PAUL E. SULLIVAN, ET AL., Petitioners

LITTLE HUNTING PARK; INC., ET AL.

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

LITTLE HUNTING. PARK, INC., ET AL.

——— . ne

_ BRIEF IN OPPOSITION TO PETITION |

QUESTIONS PRESENTED

oa

The "Petitigners request a writ of certiorari to

review the orders of the Supreme Court of Appeals.

of Virginia entered in the two captioned. cases: « The

orders of the Virginia Court dismissed these appeals .

‘a Gaee

*

on the basis that the appeals were not perfected i in ie

~~” manner provided by law in that the opposing’ counsel

- was not given reasonable written notice. of: the time |

and place of the tendering of the transcript. and - a

asonable: opportunity to examine the original or true~

" ‘copy of it. (Rule 5:1 § 3 (f) )..The question presented.

to the court therefore becomes whether the Supreme

Court of Virginia, or any court, can Set reasonable

non - discriminatory rules of aneuacaed for the orderly

- processing of appeals.

The action in the trial oainet was one for ‘injunctive

- relief. Since Dr. Freeman and his family now residg

in Pakistan, the relief requested is no longer appropriate

(Petition page 9, note 6). ‘The question now before

this Court, .is Whetker the expulsion from membership

of Mr. Sullivan’ violated his’ right of free speech as

guaranteed by the First and Fourteenth Amendments

_ of the Constitution of the United States. ;

>.

STATEMENT OF. FACTS

‘The defendant ‘corporation, LITTLE HUNTING PARK,

INC., was organized as a private non-profit club. The

_purchase of a membership: was- required, dues were .

" collected, a membership committee was. established and

the adopted by-laws required approval of application |

of membership by the Board of Directors. These same |

by-laws provided for the procedure to expel a member.

The initial by-laws restricted membership to-the adj&®ent ©

_ community and, in effect, placed a geographical limita-

- tion on the residence of the membership.

Judgment. was entered in Sullivan on April 12, 1967.

Under Rule 5:1 § 3 (f) of the Supreme-Court of Appeals

of Virginia, the appellant must tender the transcript

_ to the’ tried .within 60 days after final. judgment.

Allowing for Sunday, June 11, 1967, the final

ae yf the transcript was June 12, _—

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On June 9;. 1967, Friday, counsel for petitioners

mailed a letter to counsel for defendants that on that

day he was tendering. the\transcript to the. trial judge.

The letter was received: by counsel for eae on

Monday morning, June 12; 1967... .*

Rule 5:1 § 3 (f ) further provides: “Counsel tendering |

the transcript or statement shall give reasonable written

notice of the time and place of tendering it and & @

‘reasonable opportuni ~ & examine. the original or a _

true copy of it”. CEAN ACCIDENT CORP. v.

“S. HALEY 158 Va oe. 164°SE 538, the Virginia Court

--in construing, this wording stated “that the -provision.

of the statute is mandatory, and that the notice was not

reasonable within the plain meaning of its terms, which.

are jurisdictional”.

The transcript. was: lengthy and” contained many

errors (Petition, page 21). The question’ of. reasonable.

notice prior to the tendering is not applicable for; the

transcript was tendered before notice of its tendering ..

was Feceived..

On Friday, June 16, 1967; before the trial sie:

at 1:20 P.M. (Petition, page 22) the transcript was

delivered to counsel for defendants. At the time the

defendants’ counsel raised the question of notice and

‘the trial judge stated that the sufficiency notice was * :

to be decided by the appellate court and he would. merely

note that he was tendered the transcript on June on

1967 at 9:00 A.M...

° AUTHORITIES

-The Supr eme Court of Appeals of Virginia relied on.

SNEAD v. COMMONWEALTH; one Va 850,108 SE

2d 399, in dismissing the appeal of the petitioners. .

In SNEAD, counsel for the defendant\served notice on the

‘Commonwealth Attorney at’7:00 P.M. on June 16, 1958 -

8 that on that same day he. would tender the narrative

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5

| : . of the eyidence.. The tender. was made at the residence. e

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of ‘the trial judge. at 7:30 P.M. that same evening.” .

‘In dismissing the. appeal the court held’ that the notice

- was not reasonable dnd stated. “the plain. language of.

the Rule requires counsel to gife opposing counsel

reasonable written notice of:.the time and place. of.

tendering the ‘transcript or narrative of the evidence~ ©

and-to give him a reasonable opportunity to examine

and ‘not the- trial Judge”.

. The petitioners cite COOK * v. VIRGINIA HOLSUM

BAKERIES, INCORPORATED, 207 Va 815, 153 SE 2d

209, ~in their petition as authority as to the facts of

the case determining whether ‘notice is reasonable.- In

COOK, counsel served notice on October 15, 1965 that —

a narrative he evidence would be submitted to the

. trial judge ofPOctober 20, 1965. The narrative consisted .

‘of twelve pages and, under..the circumstances, the notice. .

“was: reasonable. This case is‘ distinguished from’ the

instant case in that the tender by the. petitioners to the

trial judge was made. prior to the opposing, counsel's

receipt: of the notice...’ . is te, |

Bee In NAACP. v. _ALABAMA, 357, US. 449, the

, Alabama court was inconsistent with’ their own prior -

holdings in refusing to: grant an appeal and this court

. felt justified -in reviewing the contempt conviction in

the lower court. In the instant case, the Supreme Court —

of Appeals of. Virginia was consistent ‘with its prior

holdings. See SNEAD v. .COMMON WEALTH; supya,

COQK v: VIRGINIA: HOLSUM BAKERIES, INCOR-,:

- PORATED, supra, HYSON v. DODGE, 198 Va 792,

96 SE 2d 792, VIRGINIA HOME FOR :INCURABLES

.. - ¥. COLEMAN, 164 Va 230, 178 SE 24 908, TYSON.

v. SCOTT, 116 Va 248, 81 SE 77, CLINCH VALLEY

‘LUMBER CORP. v. HAGAN ESTATES, 167 Va 1, 187

SE 440, CEDAR WORKS v. ‘HARPER, 129 Va 481,

106 SE = eas.

fess

In. STAUB. v. CITY oF BAXLEY, 355 US. 313, eo

ep ustice Frankfurtet in his dissent stated: aa

The relevance of a ict pr inti requiring.

that constitutiona] issues be presented in their

als narrowest ‘possible scope: is confirmed by the —

" % practice of this court. -The: court. has long _

. insisted, - certainly in precept, on’ vigorous

' 2 “requirements that must be fulfilled before it™

4 -¢ will pass on constitutionality of ‘legislation,’ __

4-«* on avoidance of such determination even by —

strained statutory constr ‘uction, and on keeping

eee constitutional adjudication, when unavoidable,

% as narrow. as circumstances will permit.

‘In STA UB, this court found the ordinance in question 3

_ repugnant to the constitition on its. face and that a

- federal question did exist. ess ; ‘

In, the instant case, the expulsion of a member of

a private club in accordance with its existing: by-laws

. is not, on its face, repugnant to the Constitution of. ~_..

the United ‘States.

The wititinnaas rely on the Julcanbie of free’speech ~

. in ‘the First and ° Fourteenth Amendments of the —

Constitution of the United States as the federal question

_ to enable this court to grant a writ of certiorari. to

the: Supreme: Court of Appeals of Virginia ‘when the

oe ‘procedures of that court have not been

‘ followed. : :

The First Amseiinaant and- the ‘Penitianeilt Amend-.

_ment prohibit the Congress and any state from curtailirig

the right of free speech. The petitioners. contend that

since LITTLE HUNTING Park, INC. performs a function

that is also performed by the State, LITTLE HUNTING

PARK, ‘INC. becomes ‘a “public figure” and within. the

purview | of the: Fourteenth Amendment.

°°

o

CONCLUSION

For: ‘the foreeoing reasons the petition for a writ.

of certiorari should be ‘denied. © oe. ete

Respectfully’ ee.

é

JOHN CHAS. HARRIS

1500Belle View Boulevard —

Alexandria, Virginia 22307:

: a ed Respondents

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