Petition — Girard v. 94th Street & 5th Ave. Corp.

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Supreme Court, U. $.

MAR 16 1976

IN THE MICHAEL RODAK, JR.,CLERK

Supreme Court of the United 5

October Term, 1975

fine ogee,

BarBaRa GUTMACHER GIRARD,

Petitioner,

against

947TH STREET AND FirtuH Avenve Corporation, LAWRENCE

Wuxinson, Joun H. Srooxey and Tuomas E. Murray,

Respondents.

PETITION (WITH APPENDICES) FOR A WRIT

JF CEKTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

SECOND CIRCUIT

QO. Joun Rocce

Attorney for Petitioner

777 Third Avenue

New York, New York 10017

Of Counsel:

O. Joun Rocce

Freperick EK. M. Bation

Howarp D. REssier

TABLE OF CONTENTS

PAGE

Opinions Below .. bss WOR A RT 2

Jurisdiction .............. ees 3 | 2

Questions Presented... re | 2

Constitutional and Statutory Provisions Involved . 3

1. Fifth Amendment | | 7 3

2. Fourteenth Amendment, Sections 1 and 5 3

3. Civil _— Act of 1871, §1, 42 U.S.C. $1983

SR | | | 4

4. Civil Rights Act of 1871, §2, 42 U.S.C. §1985

(3) (1970) . | 4

Statement of the Case Ss eee ee } 5)

Reasons for Granting the Writ ......................... = 12

I—The Second Circuit’s decision refusing to give

the plaintiff relief from the sex discrimination

inflicted upon her, flies in the face of repeated

decisions of this Court in the past half decade

from Reed v. Reed, 404 U.S. 71 (1971) and

Frontiero v. Richardson, 411 U.S. 677 (1973)

to Stanton v. Stanton, 421 U.S. 7 (1975), rev’g

and remanding 30 Utah 2d 315, 517 P. 2d 1010

(1974) and Turner v. Dep’t of Employment

Security, 44 U.S.L.W. 3298 (U.S. Nov. 17,

1975), vacating sitet in 531 P. 2d 870

RR SESE TIRES ERS i he eid 12

PAGE

Ii—The Second Circuit’s decision refusing to give

relief from a private conspiracy to subject

the petitioner to sex discrimination is incon-

sistent with this Court’s decision in Griffin v.

Breckenridge, 403 U.S. 88 (1971) and contrary

to the decisions of the Third, Fifth, Sixth and

Ne! Se TTI

I1I—The decisions of the state courts of New York

giving effect to the sex discrimination con-

spiracy of the defendants constitute state ac-

tion under Shelley v. Kraemer, 334 U.S. 1

REET ciocsrolceccsccktceeceecee ee ee on 25

IV—Civil Rights Acts provide strong federal rem-

edies supplementary to state remedies and

there need be no exhaustion of either federal

or state remedies in state courts before resort

to federal courts 0. YG

V—tThe conspiring defendants, by their arbitrary

conduct in attempting to throw Barbara Gut-

macher Girard out of her marital home with-

out any opportunity for a hearing or a state-

ment of any reasons, violated our concept of

due process, of fundamental fairness _ 31

Conclusion

Appendices :

Appendix I—Opinion of Ward, J..................... . Al

‘appendix II—Opinion of Second Cireuit Al3

Dissenting Opinion, Oakes, C.J... A26

Appendix III—Stay of Mandate of Second Circuit A33

Iit

TABLE OF AUTHORITIES

PAGE

Cases:

Action v. Gannon, 450 F. 2d 1227 (1971) (en banc)

III 8 cs icine saben tciorenesedep ona 19

Anderson v. Radcliff, 421 U.S. 939 (1975), denying

cert. to 509 F. 2d 1093 (10th Cir. 1974-1975) ........ 17

Barrett v. United Hospital, 376 F. Supp. 791 (S.D.

DR tr VIG Sa oe nO cP 23

Bartkus v. Illinois, 359 U.S. 121 (1959) 00000... 34

Bellamy v. Mason’s Stores, Inc., 508 F. 2d 504 (4th

RARE ERE AS eee RONaee 24

Booster Lodge No. 405 v. NLRB, 412 U.S. 84 (1973) 37

Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873) ....12, 13

Brown v. O’Brien, 469 F. 2d 563 (D.C. Cir.), stay

granted, 409 U.S. 1 (1972), vacated, 409 U.S. 816

(1972), and sub nom. Keane v. National Demo-

cratic Party, 409 U.S. 816 (1972) ............... 36

Brown Vv. Villanova University, 378 F. Supp. 342 (E. D.

I oc eos Saadeh 2 ctraauee ouasienetsateod | 24

Cameron v. Brock, 473 F. 2d 608 (6th Cir. 1973) 20

Cleveland Board of Education v. LaFleur, 414 U.S.

632 (1974), aff’g 465 F. 2d 1184 (6th Cir. 1972),

rev’g 326 F. Supp. 1208 (N.D. Ohio 1971), and

rev’g Cohen v. Chesterfield County School Bd.,

474 F. 2d 395 (4th Cir.) (en banc), rev’g 467 F. 2d

262 (4th Cir. oe aff’g, 326 F. Supp. 1159 (E.D.

_ — . Beare 14

Commonwealth v v. . Local Union No. 542, 347 F. Supp.

268 (E.D. Pa. 1972) .............. 24

Crimmins v. American Stock Exchange, Inc., 346 F.

Supp. 1256 (S.D. N.Y. 1972) . | c 37

PAGE

Daniel v. Louisiana, 420 U.S. 31 (1975), aff’g 297 So.

Re EE GU I ve cncriccneccosncsovvrscsvcassecevevaces ioe ae

Doe v. Bolton, 410 U.S. 179 (1973) seve ae

Duncan v. Louisiana, 391 U.S. 145, 181 (1968) . 85

Edwards v. Healy, 421 U.S. 772 (1975), vacating judg-

ment and remanding to 363 F. tee 1110 (E.D.

La. 1973) | | 15

Frontiero v. Richardson, 411 U.S. 677 (1973) .12, 13

Griffin v. Breckenridge, 402 U.S. 88 (1971) _.. 3, 18, 19

Griffin v. Illinois, 351 U.S. 12 (1956) OM

Harrison v. Brooks, 446 F. 2d 404 (1st Cir. 1971) 24

Herbert v. Louisiana, 272 U.S. 312 (1926) susscee ||

Junior Chamber of Commerce of Philadelphia v.

United States Jaycees, 419 U.S. 1026 (1974),

denying cert. to 495 F. 2d 883 (10th Cir.)......... = 16

Junior Chamber of Commerce of Rochester v. United

States Jaycees, 419 U.S. 1026 (1974), —

cert. to 495 F. 2d 883 (10th Cir.) aS» 16

Lawson v. Edwards, 420 U.S. 907 (1975), denying cert.

to 214 Va. 632, 202 S.E. 2d 869 (1974) Perse 16

Leichman v. Louisiana, 420 U.S. 907, denying cert. t.

286 So. 2d 649 (La. 1973) 15

Lynch v. Household Finance Corp., 405 US. 538

(1972), rev’g 318 F. Supp. 1111 (D. Conn. 1970) 28

McLellan v. Mississippi Power & Light Co. No. 73-

3226 (5th Cir. Feb. 5, 1976) . @

McNeese v. Board of Edue., 373 U.S. 668 (1963) 27,2

@ to

PAGE

Marshall v. Gavin, 420 U.S. 907 (1975), denymg cert.

sub nom. to Marshall v. Holmes, 495 F. 2d 1371

(5th Cir. 1974), aff’g without opinion, 365 F.

Supp. 613 (N.D. Fla. 1973) | CF ii ae

Mitchum v. Foster, 407 U.S. 225 (1972) _. F 28, 29

Mizell v. Northbroward Hospital District, 427 F. 2d

468 (5th Cir. 1970) ; 2)

Monroe v. Pape, 365 U.S. 167 (1961) 27

Murphy v. Murphy, 232 Ga. 352, 206 S.E. 2d 458

(1974), cert. denied, 421 U.S. 929 (1975) 16

Murray’s Lessee v. Hoboken Land & Improvement

Co., 59 U.S. (18 How.) 272 (1855) ; 33

NLRB v. Textile Workers, 409 U.S. 213 (1972) . 37

Normand v. Louisiana, 420 U.S. 908 (1975), _—

cert. to 298 So. 823 (La. 1974) 15

Pendrell v. Chatham College, 386 F. Supp. 341 (W.D.

Pa. 1974) . 8

Phillips v. Trello, 502 F. 2d 1000 (3rd Cir. 1974) . &

Quick v. Harris, 420 U.S. 907 (1975), denying cert. to

214 Va. 632, 202 S.E. 2d 869 (1974) Saitalabdaneaein 16

Rackin v. University of Pennsylvania, 386 F. SUPP.

992 (E.D. Pa. 1974) . 24

Reed v. Reed, 404 U.S. 71 (1974) 12

Reichardt v. Payne, 396 F. Supp. 1010 (N.D. Cal.

1975) ... io an

Richardson v. Miller, 446 F. 2d 1247 (3rd Cir. 1971) 20

Roe v. Wade, 410 U.S. 113 (1973) 15

Schlesinger v. Ballard, 419 U.S. 498 (1975), rev’g sub

nom. Ballard v. Laird, 360 F. Supp. 643 (S.D. Cal.

1973) ESR 16

Shelley v. Kraemer, 334 U. S. 1 (1948) 3, 25, 26

PAGE

Silver v. New York Stock Exchange, 373 U.S. 341

(1963) 36

Stanton v. Stanton, 421 U.S. 7 (1975), rev’g and re-

manding 30 Utah 2d 315, 517 P. 2d 1010 (1974) ..12,17

Stern v. Massachusetts Indemnity & Life Insurance

Co., 365 F. Supp. 433 (B.D. Pa. 1973) 24

Sumpter v. Indiana, 419 U.S. 811 (1974), dismissing

appeal from 306 N.E. 2d 95 (Ind.) 16

Sweezy v. New Hampshire, 354 U.S. 234 (1957) 34

Taylor v. Louisiana, 419 U.S. 522 (1975), rev’g 282

So. 2d 491 (La. 1973) 15,17

Thomas v. Economic Action Com., 504 F. 2d 563 (Sth

Cir. 1974) 24

Trustees of Dartmouth College v. Woodward, 17 U.S.

(4 Wheat.) 518 (1819) 32

Turner v. Dep’t of Employment Security, 44 U.S.L.W.

3298 (U.S. Nov. 17, 1975), vacating judgment in

531 P. 2d 870 (Utah) 12, 17, 18

Twining v. New Jersey, 211 U.S. 78 (1908) 33

Van Daele v. Vinci, 51 Ill. 2d 389, 282 N.E. 2d 728,

cert. denied, 409 U.S. 1007 (1972) 36

Villani v. New York Stock Exchange, Inc., 348 F.

Supp. 1185 (S.D. N.Y. 1972) 37

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), aff’g

367 F. Supp. 981 (D. N.J. 1973) 16

Weise v. Syracuse University, 522 F. Supp. 2d 397

(1975) 24

Westberry v. Gilman Paper Co., 507 F. 2d 206 (5th

Cir. 1975) 1

Wilwording v. Swenson, 404 U.S. 249 (1971) 28

vit

Other Authorities:

Civil Rights Act of 1871

§1, 42 U.S.C. §1983 (1970)

§2, 42 U.S.C. §1985 (3) (1970)

Coke, 2 Institutes

2 English Historical Documents

Fifth Amendment

Fourteenth \mendment

Section 1

Section 5

McKechnie, W., Magna Charta

PAGE

2, 4, 5, 26, 27, 28

2, 3, 4, 5, 18, 19,

26, 27, 28

3, 38

3, 12, 13, 38

Rogge, O. J.. An Overview of Administrative Due

Process (pts. 1 and 2), 19 Villanova Law Review

1, 2-4, 197, 251-55 (1973)

IN THE

Supreme Court of the United States

October Term, 1975

No.

rm te

Barsara GurMacHER GIRARD,

Petitioner,

agaimst

947TH Street ano Firre Avenve Corporation, LAWRENCE

Witxrsson, Jonn H. Srookey and THomas E. Murray,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, Barbara Gutmacher Girard, prays that

a writ of certiorari be issued to review the final judgment

of the United States Court of Appeals for the Second Cir-

cuit entered in the office of the clerk on January 13, 1976,

in which the Second Circuit by a vote of two to one

sustained District Judge Robert J. Ward’s summary dis-

missal of petitioner’s civil rights complaint in which she

charges that the defendants, Lawrence Wilkinson, John H.

Stookey and Thomas E. Murray, arbitrarily and destruc-

tively conspired to deprive her of her $300,000 coopera-

tive apartment solely because she is a woman, in violation

of sections 1 and 2 of the Civil Rights Act of 1871, 42 U.S.C.

§§1983 and 1985 (3) (1970).

Opinions Below

The opinion of District Judge Robert J. Ward is re-

ported, 396 F. Supp. 450 (S.D.N.Y. 1975). It is reproduced

as Appendix I, infra, pp. Al-A12. The opinions of the

United States Court of Appeals for the Second Circuit are

not yet reported. They are reproduced as Appendix II,

infra, that of Cireuit Judge Thomas J. Meskill in which

Circuit Judge Sterry R. Waterman joined, at pp. A13-

A209, and that of dissenting Circuit Judge James L. Oakes,

pp. A26-A32.

Jurisdiction

The Second Circuit rendered its judgment affirming the

judgment of the United States District Court for the

Southern District of New York and entered its order of

affirmance on January 13, 1976. The jurisdiction of this

Court is invoked under 28 U.S.C. §1254(1).

Questions Presented

1. Does the conspiracy of the defendants, Lawrence

Wilkinson, John H. Stookey and Thomas E. Murray, to de-

prive Barbara Gutmacher Girard of her $300,000 cooper-

ative apartment solely because she is a woman, violate sec-

tions 1 and 2 of the Civil Rights Act of 1871, 42 U.S.C.

§§1983 and 1985 (3) (1970)?

2. Do the decisions of the state courts of New York in

giving effect to this conspiracy constitute state action under

Shelley v. Kraemer, 334 U.S. 1 (1948)?

3. Do the provisions of the Fourteenth Amendment

through the conspiracy provisions of the Civil Rights Act

of 1871, 42 U.S.C. £1985 (3) (1970), provide a cause of

action against the defendants under Griffin v. Breckenridge,

403 U.S. 88 (1971)?

4. Do the conspiring defendants, by their arbitrary con-

duct in attempting to throw Barbara Gutmacher Girard out

of her marital home without any opportunity for a hearing

or a statement of any reasons, violate our concept of due

process embodied in the Fifth and Fourteenth Amend-

ments?

Constitutional and Statutory Provisions Involved

1. Fifth Amendment

** * nor shall any person * * * be deprived of life,

* &

liberty, or property, without due process of law

2. Fourteenth Amendment, Sections 1 and 5

Section 1. <All persons 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 immuni-

ties of 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 jurisdiction the equal protection of the laws.

Section 5. The Congress shall have tl.» power to

enforce, by appropriate legislation, the provisions of

this article.

3. Civil Rights Act of 1871, §1, 42 U.S.C. §1983 (1970)

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citi-

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.

4. Civil Rights Act of 1871, §2, 42 U.S.C. §1985 (3) (1970)

If two or more persons in any State or Territory

conspire * * * for the purpose of depriving, either

directly or indirectly, any person or class of persons

of the equai protection of the laws, or of equal privi-

leges and immunities under the laws * * * if one or

more persons engaged therein do, or cause to be done,

any act in furtherance of the object of such conspiracy,

whereby another is injured in his person or property,

or deprived of having and exercising any right or privi-

lege of a citizen of the United States, the party so

injured or deprived may have an action for the recov-

ery of damages, occasioned by such injury or depriva-

tion, against any one or more of the conspirators.

nw an nll

Statement of the Case

The petitioner, Barbara Gutmacher Girard, brought her

action in the United States District Court for the Southern

District of New York under 28 U.S.C. 6613438 (1), (8) and

(4), and 1331 (a), charging the defendants, Lawrence Wil-

kinson, John H. Stookey and Thomas E. Murray with con-

spiring to deprive her of her $300,000 cooperative apart-

ment solely because she is a woman in violation of sections 1

and 2 of the Civil Rights Act of 1871, 42 U.S.C. §§1983 and

1985 (3) (1970).

Judge Ward, treating the motion of the defendants un-

der Rule 12 (b) (6), Fed. R. Civ. P., to dismiss as a motion

for summary judgment, granted it. The Second Cirenit,

by a vote of two to one, Cireuit Judge James L. Oakes dis-

senting, affirmed.

On July 20, 1963 Barbara Gutmacher Girard, the daugh-

ter of Rose and Martin Gutmacher, married Stephen S.

Girard. One child, Nicole, was born of this union on July

25, 1966 (34A, 44A).*

The Girards purchased 497 shares of the capital stock

of the corporate defendant and by reason of this purchase

became the owners of the prepriectary lease to the fourth

floor of the building at 1125 Fifth Avenue, New York, New

York. The stock was taken in the name of Stephen S.

Girard (13A-33A). On January 10, 1968 the Girards moved

into this cooperative apartment (62A). This became their

marital home. Barbara and her daughter Nicole, now age

* References are to pages of the Appendix in the Second Circuit,

unless otherwise indicated.

9, are still there. They want to stay there. That is why

we are here.

In 1975 the Girards were divorced. As part of the

separation agreement between them, which was incorpo-

rated in the divorce decree, Stephen S. Girard transferred

to his wife Barbara, in lieu of alimony, the 497 shares of

stock in the cooperative defendant and the proprietary

lease to the fourth floor at 1125 Fifth Avenue (35A-36<A,

OSA).

However, the defendants, Lawrence Wilkinson, John H.

Stookey and Thomas E. Murray, who were directors and

shareholders of the corporate defendant as well as tenants

and occupants of apartments in the building owned by the

corporate defendant (86A), as was the plaintiff, Barbara

Gutmacher Girard, conspired to deprive her of her fourth

floor $300,000 cooperative apartment. They arbitrarily

refused to recognize her as the rightful owner. The com-

plaint alleges in Paragraph 14 that ‘‘the defendants con-

spired with each other and formed a deliberate design in

purpose to injure this plaintiff solely for the reason that

she is of the female sex, and to deprive her of her civil

rights by reason of her sex and of her substantial property

rights in the subject premises, and, in particular, the own-

ership of the aforesaid shares of stock and the proprietary

lease in said premises, the purpose, intent and result of

which was to enable, permit and allow the said defendants

to receive for their own use and benefit and not for the

benefit of plaintiff the sole and exclusive right to determine

who shall own said shares of stock and the proprietary

lease in the subject premises, and the said defendants did

the various wrongful and unlawful acts hereinafter alleged,

+ nnnk OE ele meet al hone aia laine

6 Fete

RAS adh Oh en roel 6

all in furtherance of such unlawful design and purpose”’

(6A).

The complaint alleges, among other things, in Para-

graph 16 (b) that in furtherance of the conspiracy the

defendants ‘‘specifically refused plaintiff an opportunity

to appear and be present at any discussions or meetings of

the officers and Board of Directors of the corporate defend-

ant at which «he could establish her proprietary interest in

said shares of stock and lease, and refused to provide plain-

tiff with minutes of said meetings or with any statement,

written or oral, which would explain the basis of the afore-

said acts’’ (7A).

The plaintiff, Barbara Gutmacher Girard, was never

accorded any meeting with the defendants. They would

not hear her. They told her nothing. Theirs was arbitrary

action at its worst and ugliest.

They would not accept her money. To do that might

have meant that they recognized Barbara Gutmacher Girard

as the lawful possessor of the $300,000 fourth floor coopera-

tive apartment at 1125 Fifth Avenue; and, in the eyes of

the conspiring defendants, God forbid any such result.

They would accept anything rather than that. The com-

plaint alleges in Paragraph 16 (c) that the conspiring de-

fendants in furtherance of their conspiracy:

‘‘Failed and refused to accept any checks or other pay-

ments tendered by plaintiff or her agents in full pay-

ment of the maintenance required for occupancy of

said demised premises, although plaintiff duly offered

to pay same and has, in fact, tendered to the corporate

defendant any and all payments required under the

terms of the aforesaid proprietary lease, which pay-

ments were previously accepted by the corporate de-

fendant from Stephen S. Girard and/or plaintiff’’

(8A).

Not only did the defendants refuse to take Barbara

Gutmacher Girard’s money; they also refused to accept a

guarantee from her father for anv monies that might be

due from her. The complaint alleges in Paragraph 16 (d)

that the conspiring defendants in furtherance of their con-

spiracy :

‘*Failed and refused to accept any guarantee by any

persons financially able to discharge any indebtedness

that may arise to the corporate defendant by reason

of plaintiff’s continued occupancy of the subject prem-

ises as tenant thereof’’ (SA).

In addition, the conspiring defendants engaged in a

deliberate and malicious campaign of annoying the plain-

tiff, Barbara Gutmacher Girard, with harassing telephone

ealls at all hours of the night and day. The complaint al-

leges in Paragraph 16 (f) that the conspiring defendants

in furtherance of their conspiracy :

‘*Deliberately and maliciously made telephone calls to

plaintiff at unreasonable hours solely for the purpose

of harassing and annoying her in order to force plain-

tiff to vacate said premises and to withdraw her de-

mand to the corporate defendant to recognize her as

the lawful owner of the aforesaid shares of stock and

proprietary lease to said premises’’ (8A).

Here is the way Cireuit Judge John L. Oakes in his dis-

senting opinion treated the conspiracy allegations of the

complaint in the instant case:

‘‘But here the individual defendants were not al-

leged to be simply agents or employees of the cor-

—

porate defendant, nor to be acting in the scope of their

employment, nor to be acting for the corporate benefit.

A closer reading of the complaint indicates that appel-

lant explicitly alleges that the injurious acts of the

individual defendant conspirators were indeed com-

mitted in their individual, not their corporate, ca-

pacities.

‘‘Here the complaint alleges that the individual de-

fendants ‘constitute the officers and the entire Board of

Directors of the corporate defendant, and wholly domi-

nate, operate and control all its business and financial

affairs.’ (Emphasis added.) These allegations alone

serve to distinguish this case from Dombrowski, supra.

As recognized by Judge MeMillen in Cohen v. Illinois

Institute of Technology, 384 F. Supp. 202, 205 (N.D.

Ill. 1974), the case is entirely different when the indi-

vidual officers or directors are ‘alleged to have con-

trolled [the corporate defendant] or to have personally

committed acts of discrimination. * * *’ In such a

case, as here, the individuals are not acting at the

direction of their corporate employer or necessarily

for its benefit.

‘‘Further, the complaint alleges that the defend-

ants, ‘in furtherance of the said design and conspiracy,’

‘fa]dvised, caused, permitted and allowed the

President and the Board of Directors of the corpo-

rate defendant to deny plaintiff permission and

authority to continue occupancy of the subject prem-

ises.’

‘‘Surely the implication of such an allegation is not

that the defendants in their capacity as corporate

agents advised themselves to act in their capacity as

corporate agents. Rather, it is that defendants in their

individual capacities determined according to personal

motives that they would cause managerial action by

the president and the board of directors to serve their

individual interests. The crux of this allegation is

that defendants acted, albeit behind the screen of their

corporate roles, in an individual and not an official

capacity.

‘*Here, indeed, the complaint also alleges that ‘the

purpose, intent and result’ of the conspiracy ‘was to

enable, permit and allow the said defendants to receive

for their own use and benefit and not for the benefit of

plaintiff the sole and exclusive right to determine who

shall own said shares of stock and the proprietary lease

in the subject premises. * * *’ (Emphasis added.) As

shareholders in the cooperative corporation and as

leaseholders in the building it would be to their in-

dividual financial benefit to have the Girard apartment

revert to the corporation and it might very well be to

their personal benefit to acquire the apartment for

themselves. These allegations as to personal motives

alone further serve to distinguish this case from the

corporate-agent cases referred to above. See Nelson

Radio & Supply Co. v. Motorola, 200 F.2d 911, 914

(5th Cir. 1952), cert. denied, 345 U.S. 925 (1953).

‘*Moreover, acts engaged in as a part of the con-

spiracy by defendants allegedly include deliberate and

malicious ‘telephone calls to plaintiff at unreasonable

hours solely for the purpose of harassing and annoying

her in order to force plaintiff to vacate said premises.

**** Such conduct, if established, would surely be in-

dividual and non-corporate in nature; nor are these al-

legations to be lightly disregarded or passed off as

being de minimis. Cf. Rackin v. University of Penn-

sylvania, 386 F. Supp. 992 (B.D. Pa. 1974).’’ App. II,

at pp. A28-A31.

———

Girards in the corporate defendant from Stephen 8. Girard

to his wife, Barbara Gutmacher Girard. Thereafter, in

the words of the Second Circuit:

‘‘Plaintiff then initiated suit (‘Action #1’) in the

Supreme Court of New York seeking both a declara-

tion that the corperation’s refusal was arbitrary, ca-

pricious, and unreasonable and an order compelting

the corporation to transfer the stock on its books to

her and to consent to an assignment of the lease. The

corporation commenced its own action (‘Action #2’)

for possession and eviction because of the unauthor-

ized assiguinent and the failure to pay maintenance

costs. The state court granted defendant’s motion for

summary judgment in Action #1, finding that the con-

sent provision of the lease was enforceable under state

law and that ‘the cooperative apartment corporation

had the right to refuse to consent to the transfer of

the lease to plaintiff for any reason deemed satisfac-

tory to it (exeert, of course, those prohibited by the

Civil Rights Laws).’ The Appellate Division, First

Department, affirmed the order and judgment. 46

App. Div. 2d 848, 362 N.Y.S. 2d 405 (1974). Plaintiff's

motion for leave to appeal to the New York Court of

Appeals was denied.’’ App. I, at p. Al6.

When the state courts gave effect to the sex diserimina-

tion conspiracy of the defendants, Barbara Gutmacher

Girard went to federal forum, the United States District

Court for the Southern District of New York.

In furtherance of their conspiracy the conspiring indi-

vidual defendants arbitrarily, adamantly and without rea-

son refused to register the transfer of 497 shares of the

a ........____..

Reasons for Granting the Writ

The Second Circuit’s decision refusing to give the

plaintiff relief from the sex discrimination inflicted

upon her, flies in the face of repeated decisions of this

Court in the past half decade from Reed v. Reed, 404

U.S. 71 (1971) and Frontiero v. Richardson, 411 U.S.

677 (1973) to Stanton v. Stanton, 421 U.S. 7 (1975),

rev'g and remanding 30 Utah 2d 315, 517 P. 2d 1010

(1974) and Turner v. Dep’t of Employment Security,

44 U.S.L.W. 3298 (U.S. Nov. 17, 1975), vacating judg-

ment in 531 P. 2d 870 (Utah).

In the past half decade this Court has done almost an

about face in its approach to equal rights for women. The

Court’s earlier attitude was expressed in Bradwell vy. Illi-

nois, 83 U.S. (16 Wall.) 130 (1873), where the Court in

1873—five years after the Fourteenth Amendment became

part of the Constitution and commanded that no state shall

deny the equal protection of the laws to any person within

its jurisdiction—upheld a decision of the Supreme Court of

Illinois that denied a woman the right to practice law. In

fairness it must be said that counsel stressed the privileges

and immunities provisions. Neither the bench nor the bar

thought in terms of the equal protection clause.

The turning point in the Court’s course came with Reed

v. Reed, 404 U.S. 71 (1971), where each of the adoptive

parents of a deceased minor applied for letters of adminis-

tration of the decedent’s estate. The Idaho Supreme Court

held that under such cireumstances an Idaho statutory pro-

vision gave preference to the male. The federal Supreme

e —_

Court invalidated the provision as violative of the equal

protection clause of the Fourteenth Amendment. Mr. Chief

Justice Burger wrote for a unanimous Court:

“* * * To give a mandatory preference to members

of either sex over members of the other, merely to

accomplish the elimination of hearings on the merits,

is to make the very kind of arbitrary legislative choice

forbidden by the Equal Protection Ciause of the Four-

teenth Amendment; and whatever may be said as to

the positive values of avoiding intrafamily contro-

versy, the choice in this context may not lawfully be

mandated solely on the basis of sex.’’ Jd. at 76-77.

The Court took a further small step forward in Fron-

tiero v. Richardson, 411 U.S. 677 (1973), where it ruled that

female members of the Armed Services were entitled to the

same dependency benefits of their husbands as servicemen

were entitled to receive for their wives. There was no

opinion in which five members of the Court joined. Mr. Jus-

tice Brennan announced the judgment of the Court in an

opinion in which Justices Douglas, White and Marshall

joined. These four Justices took the position that classifica-

tions based upon sex—like those based on race, alienage and

national origin—‘‘are inherently suspect’’ and found ‘‘at

least implicit support for such an approach in our unani-

mous decision only last Term in Reed v. Reed.’’ Id. at 682.

Mr. Justice Brennan, after quoting from Justice Brad-

ley’s concurring opinion in Bradwell v, lilinois, 83 U.S. (16

Wall.) 130 (1873), continued with this paragraph:

‘‘As a result of notions such as these, our statute

books gradually became laden with gross, stereotypical

distinctions between the sexes and, indeed, throughout

eee

much of the 19th century the position of women in our

society was, in many respects, comparable to that of

blacks under the pre-Civil War slave codes. Neither

slaves nor women could hold office, serve on juries, or

bring suit in their own names, and married women

traditionally were denied the legal capacity to hold or

convey property or to serve as legal guardians of their

own children. See generally, L. Kantowitz, Women

and the Law: The Unfinished Revolution 5-6 (1969) ;

G. Mydral, An American Dilemma 1075 (2d ed. 1962).

And although blacks were guaranteed the right to vete

in 1870, women were denied even that right—which is

itself ‘preservation of other basic civil and political

rights’—until adoption on the Nineteenth Amendment

half a century later.”’ 411 U.S. at 685.

One of the Court’s cases, Cleveland Board of Education

v. LaFleur, 414 U.S. 682 (1974), aff’g 465 F.2d 1184 (6th

Cir. 1972), rev’g 326 F. Supp. 1208 (N.D. Ohio 1971), and

rev’g Cohen v. Chesterfield County School Bd., 474 F.2d 395

(4th Cir.) (en banc), rev’g, 467 F. 2d 262 (4th Cir. 1972),

aff’g, 326 F. Supp. 1159 (E.D. Va. 1971), involved three

pregnant teachers, two in Cleveland, Ohio, and one in Ches-

terfield County, Virginia, who took school authorities to

court over regulations barring them from teaching beyond

certain months of pregnancy. The Court ruled in favor of

the teachers, saying through Mr. Justice Stewart:

‘*This Court has long recognized that freedom of per-

sonal choice in matters of marriage and family life is

one of the liberties protected by the Due Process Clause

of the Fourteenth Amendment. * * *

‘*By acting to penalize the pregnant teacher for de-

ciding to bear a child, overly restrictive maternity leave

regulations can constitute a heavy burden on the exer-

cise of these protected freedoms.’’ 414 U.S. at 639-40,

. ee ee ee Dee eel

In two more cases, Roe v. Wade, 410 U.S. 113 (1973) and

Doe v. Bolton, 410 U.S. 179 (1973), the Court decided that

a woman had a right to an abortion in the first trimester of

pregnancy, saying through Mr. Justice Blackmun in the

former case:

‘*To summarize and to repeat:

‘*1. A state criminal abortion statute of the current

Texas type, that excepts from criminality only a life-

saving procedure on behalf of the mother, without re-

gard to pregnancy stage and without recognition of

the other interests involved, is violative of the Due

Process Clause of the Fourteenth Amendment.

‘*(a) For the stage prior to approximately the end

of the first trimester, the abortion decision and its

effectuation must be left to the medical judgment of

the pregnant woman’s attending physician.’’ Jd. at 164.

At its 1974-1975 term, the Court had nearly a dozen and

a half cases in the equal rights between the sexes area on

its docket: Edwards v. Healy, 421 U.S. 772 (1975), vacat-

ing judgment and remanding to 363 F. Supp. 1110 (E.D.

Ia. 1973), ‘‘to consider whether * * * the cause has become

moot,’’ where a federal three-judge District Court in Loui-

siana invalidated a Louisiana constitutional provision that

bans women from jury service unless they volunteer for it;

Taylor vy. Louisiana, 419 U.S. 522 (1975), rev’g 282 So. 2d

491 (La. 1973), and Daniel v. Louisiana, 420 U.S. 31 (1975),

aff’g 297 So. 2d 417 (La. 1974), where the Louisiana Su-

preme Court reached a contrary result; Leichman v. Loui-

siana, 420 U.S. 907, denying cert. te 286 So. 2d 649 (La.

1973), and Normand vy. Louisiana, 420 U.S. 908 (1975),

denying cert. to 298 So. 2d 823 (La. 1974), involving the

systematic exclusion of women from grand and petit juries;

Lawson v. Edwards, 420 U.S. 907 (1975), denying cert. to

214 Va. 632, 202 S.E. 2d 869 (1974), and Quick vy. Harris,

420 U.S. 907 (1975), denying cert. to 214 Va. 632, 202 S.E.

2d 869 (1974), where the Virginia Supreme Court held that

male defendants had no standing to raise the issue of the

systematic exclusion of women from trial juries; Marshall

v. Gavin, 420 U.S. 907 (1975), denying cert. sub nom. to

Marshall v. Holmes, 495 F. 2d 1371 (5th Cir. 1974), aff’g

without opinion, 365 F. Supp. 613 (N.D. Fla. 1973), involv-

ing @ Florida statute that allows women with children under

18 years of age to exempt themselves from jury duty;

Junior Chamber of Commerce of Rochester v. United States

Jaycees, 419 U.S. 1026 (1974), denying cert. to 495 F. 2d

883 (19th Cir.), and Junior Chamber of Commerce of Phila-

delphia v. United States Jaycees, 419 U.S. 1026 (1974),

denying cert. to 495 F. 2d 883 (10th Cir.), involving the

males-only membership policy of the Jayeees; Sumpter v.

Indiana, 419 U.S. 811 (1974), dismissing appeal from 306

N.E. 2d 95 (Ind.), where the Indiana Supreme Court sus-

tained a statute of that state which made it an offense for

a woman, but not a man, to live in or frequent a house of ill

fame; Murphy v. Murphy, 232 Ga. 352, 206 S.E. 2d 458

(1974), cert. denied, 421 U.S. 929 (1975), involving the

validi‘y of a Georgia alimony statute; Schlesinger v. Bal-

lard, 419 U.S. 498 (1975), rev’g sub nom. Ballard v. Laird,

360 F. Supp. 643 (8.D. Cal. 1973), where a federal three-

judge statutory court in California held that the statutory

scheme for the discharge of Navy officers denied male offi-

cers equal protection of the laws; Weinberger v. Wiesen-

feld, 420 U.S. 636 (1975), aff’g 367 F. Supp. 981 (D. NJ.

1973), where a federal three-judge statutory court in New

Jersey ruled on equal protection grounds that a widower

with children was entitled to the same Social Security Act

survivor’s benefits as a widow; Stanton v. Stanton, 421

U.S. 7 (1975), rev’g and remanding to 30 Utah 2d 315, 517

P. 2d 1010 (1974), involving a Utah statute under which

for support purposes men became of age at 21, but women

at 18; Anderson v. Radcliff, 421 U.S. 939 (1975), denying

cert. to 509 F. 2d 1093 (10th Cir. 1974-1975), involving an

Oklahoma statute allowing juvenile court benefits to fe-

males under the age of 18 while limiting such benefits to

males under 16; and Turner v. Dep’t of Employment Secu-

rity, 44 U.S.L.W. 3298 (U.S. Nov. 17, 1975), vacating judg-

ment in 531 P. 2d 870 (Utah), where the Utah Supreme

Court sustained the validity of that state’s statute denying

unemployment compensation benefits to pregnant women

during 12 weeks prior to and 6 weeks after childbirth.

In one of these cases, Taylor v. Louisiana, 419 U.S. 522

(1975), the Court, by a vote of eight to one, ruled that the

changing economic and social patterns of the past dozen

years make it constitutionally unacceptable for states to

deny women an equal opportunity with men to serve on

juries. Mr. Justice White wrote for the majority: ‘‘If it

was ever the case that women were unqualified to sit on

juries or were so situated that none of them should be

required to perform jury service, that time has long since

passed.’’ 419 U.S. at 537.

In its latest ruling at its 1974-1975 term, Stanton v.

Stanton, 421 U.S. 7 (1975), a child support case, the Court

voided a Utah law setting different ages of majority for

men and women. Speaking through Mr. Justice Blackmun

the Court said:

‘‘No longer is the female destined solely for the

home and the rearing of the family, and only the male

for the marketplace and the world of ideas. See

Taylor v. Louisiana. * * * Women’s activities and

responsibilities are increasing and expanding. Coedu-

cation is a fact, not a rarity. The presence of women

in business, in the professions, in government and,

indeed, in all walks of life where education is a desir-

able, if not always a necessary antecedent, is apparent

and a proper subject of judicial notice.’’ 421 U.S. at

14-15.

At its 1975-1976 term, in Turner v. Dep’t of Employ-

ment Security, 44 U.S.L.W. 3298 (U.S. Nov. 17, 1975),

vacating judgment in 531 P. 2a 870 (Utah), the Court held:

‘“We conclude that the Utah unemployment compensation

Statute’s incorporation of a conclusive presumption of in-

capacity during so long a period before and after childbirth

is constitutionally invalid under the principles of the La-

Fleur case.’’ 42 U.S.L.W. at 3299.

The Second Circuit’s decision refusing to give re-

lief from a private conspiracy to subject the petitioner

to sex discrimination is inconsistent with this Court’s

decision in Griffin v. Breckenridge, 403 U.S. 88 (1971)

and contrary to the decisions of the Third, Fifth, Sixth

and Eighth Circuits.

Section 2 of the Civil Rights Act of 1871, 42 U.S.C.

§1985 (3) (1970), provides a cause of action against ‘*two

or more persons in any state or territory’? if they ‘‘con-

spire * * * for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal pro-

tection of the laws, or of equal privileges and immunities

under the laws.”’

tA atte —«

The United States Supreme Court in Griffin v. Brecken-

ridge, 403 U.S. 88 (1971), settled that this language applies

to purely private conspiracies. That case involved some

Mississippi whites who sought to block the passage of some

blacks in an automobile upon the public highways. The

Court held that the blacks had a cause of action against the

whites, saying through Mr. Justice Stewart:

‘‘The language requiring intent to deprive of equal

protection, or equal privileges and immunities, means

that there must be some racial, or perhaps otherwise

class-based, invidiously discriminatory annus behind

the conspirators’ action. The conspiracy, in other

words, must aim at a deprivation of the equal enjoy-

ment of rights secured by the law to all.’? At 102.

Since then, four United States Courts of Appeals, the

Third, Fifth, Sixth and Eighth Circuits, under varying cir-

cumstances, and various district courts have held that the

conspiracy provisions of section 2 of the Civil Rights Act

of 1871, 42 U.S.C. §1985 (3) (1970), apply to purely private

conspiracies.

The case in the Eighth Cireuit, Action v. Gannon, 450

F. 2d 1227 (1971) (en banc) (unanimous decision), involved

a group of blacks who were engaged in a campaign to

disrupt the religious services of a predominantly white

Catholic parish. The Eighth Circuit held that the whites

had a cause of action. Although the blacks had a First

Amendment right of freedom of speech, the whites had a

First Amendment right to freedom of worship. The Highth

Cireuit held that the whites ‘‘were clearly entitled to in-

junctive relief because the evidence established that the de-

fendants had disrupted religious services at the Cathedral

and that they would continue to do so unless enjoined.”’

At 1238.

The Sixth Cireuit in Cameron v. Brock, 473 F. 2d 608

(6th Cir. 1973), applied the conspiracy provisions of sec-

tion 1985 (3) to opponents in a political campaign saying:

‘We hold that §1985 (3)’s protection reaches

clearly defined classes, such as supporters of a political

candidate. If a plaintiff can show that he was denied

the protection of the Jaw because of the class of which

he was a member, he has an actionable claim under

§1985 (3). This interpretation does not transform th

statute into the ‘general federal tort law’ feared by the

Grigin Court and gives full effect to the Congressional

purpose in enacting the statute.’’ At 616,

In the Third Cireuit case, Richardson v. Miller, 446

F.2d 1247 (1971), the plaintiff alleged that the defendants,

all of whom were private individuals, dismissed him from

his employment because he expressed views which were

critica! of what he believed to be their racially discrimina-

tory employment practices. The Third Circuit held that

the complaint stated a cause of action, concluding :

‘*In Griffin, the Court concluded that Section 1985

(3) embraced private conspiracies to deprive any per-

son of equal protection of law or equal privileges and

immunities under the law where there exists a ‘racial,

or perhaps otherwise class-based invidiously diserim-

inatory animus’ behind the conspirators’ action. ‘The

conspiracy, in other words, must aim at a deprivation

of the equal enjoyment of rights secured by the law

to all.’ Griffin, supra, at p. 102, * * *.

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‘‘We realize that the district court did not have the

benefit of the Supreme Court’s opinion in Griffin when

it filed its March 25, 1970 Order from which this appeal

was taken. However, we nonetheless conclude that the

Griffin decision provides an adequate basis upon which

to conclude that plaintiff's complaint at least states

a cause of action under section 1985 (3).’’ At 1249.

The most closely reasoned case is Westberry v. Gilman

Paper Co., 507 F. 2d 206 (Sth Cir. 1975), but the court later

withdrew its opinion on the ground that the ease had be-

come moot. That case involved a white environmentalist

who brought suit against the defendant corporation and

three individuals. The plaintiff had sought investigations

of the corporate defendant for possible violation of federal

pollution laws. The plaintiff alleged that the defendants

conspired to take his life and his job, succeeding in the

latter. The Fifth Circuit held that he had a cause of action,

saying:

‘This case pushes us to the frontiers of Fourteenth

Amendment interpretation. We must address ourselves

to a question which the Supreme Court postponed in

Griffin v. Breckenridge: does the Fourteenth Amend-

ment, through the vehicle of 42 U.S.C. $1985 (3),

provide a cause of action against purely private

parties?

‘‘Today we hold that the amendment and the stat-

ute operate in tandem to provide such a cause of ac-

tion. In so holding, we join a unanimous en bane

decision by the Eighth Circuit and a decision by the

Third Circuit.

‘‘Constitutional viability is not a theorem, it is a

fact in our volatile jurisprudence, without which the

past would stultify the present and the heavy hand of

history would stunt our ethical growth and enervate

our powers to meet governmental responsibilities.

Here, we do not erect a new structure for a constitu-

tional law of torts but rather enter a door which Griffin

left ajar.’’ At 207-08, 215.

Aithough the Fifth Cireuit withdrew its opinion in this

case, it came out with an even more striking decision in

McLellan v. Mississippi Power d: Light Co., No. 73-3226

(Sth Cir. Feb. 5, 1976). In that case the plaintiff charged

a conspiracy to discharge him from his employment for

violating company policy by filing a voluntary petition in

bankruptcy. The court held that this conspiracy fell within

section 1985 (3) saying:

‘‘The Supeme Court in Griffin concluded that the

Thirteenth Amendment and the right of interstate

travel authorized Congress to reach the private con-

spiracy alleged. Neither of those sources of Congres-

sional power identified in Griffin is applicable in this

case, but Congressional authority to reach the con-

spiracy alleged springs from article I, §8 of the Con-

stitution:

The Congress shall have Power * * * To establish

** * uniform Laws on the Subject of Bankruptcies

throughout the United States * * *

Read in conjunction with the necessary and proper

clause, the bankruptcy power manifestly vests Con-

gress with the power, via civil remedies, to discourage

people from conspiring to interfere with efforts of

individuals to obtain discharges in bankruptey.’’

Reference may also be made to a few district court

opinions. Reichardt v. Payne, 396 F. Supp. 1010 (N.D. Cal.

1975), involved an action against the California Insurance

—

ct hae ee

AO a Fae We 4

Commissioner and various disability insurance companies

claiming that the policies offered the plaintiff and to women

were sexually discriminatory. The court held:

‘‘ Although sex has not yet been considered a ‘sus-

pect category’ under federal law (cf. Schlesinger v.

Ballard, 419 U.S. 498, 95 S. Ct. 572, 42 L. Ed. 2d 610

(1975); Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L.

Ed. 2d 225 (1975); compare Sail’er Inn, Inc. v. Kirby,

5 Cal. 3d 1, 95 Cal. Rptr. 329, 485 P. 2d 529 (1971)), I

hold that a private conspiracy motivated by invidiously

discriminatory intent based upon a sex bias is suffi-

ciently class-based to come within Section 1985 (3).

Cf. Griffin v. Breckenridge, supra.’’ 396 F.Supp. at

1018.

In Pendrell v. Chatham College, 386 F. Supp. 341 (W.D.

Pa. 1974), a former professor at a private college alleged,

among other things, that a contract of employment with the

college was not renewed because she was a woman. The

court held:

‘‘The second particular question is whether $1985

can support a cause of action for sex discrimination,

hearing in mind that, notwithstanding plaintiff's in-

artful pleading, a cause of action for sex discrimination

against a private employer is in essence what is sought

to be maintained here. Since (1985 equally draws its

validity from the Fourteenth Amendment as well as

the Thirteenth Amendment, and even though the Thir-

teenth Amendment is applicable only to discrimination

against black persons and not to discrimination against

women, I will hold that it will. In this instance the

Thirteenth Amendment’s restrictiveness is overborne

by the all-inclusive effect of the Equal Protection clause

of the Fourteenth Amendment.’’ At 348.

In Barrett v. United Hospital, 376 F. Supp. 791 (S.D.

N.Y. 1974), a physician brought an action against a private

hospital which had revoked his staff privileges after his

indictment and subsequent plea of assault in satisfaction

of a criminal abortion charge. The court followed Griffin,

saying,

‘«<* * * Nevertheless, in Collins v. Hardyman, 341 U.S.

651 * * * (1951), the Supreme Court held that state

action was indeed a necessary ingredient to a cause of

action under these statutes. Twenty years later in

Griffin v. Breckenridge, 403 U.S. 88 * * * (1971), the

Court reconsidered the question and arrived at the

opposite conclusion. Section 1985 (3), coneluded Jus-

tice Stewart, was clearly intended to cover private

conspiracies.’’ At 806.

Accord, Mizell v. Northbroward Hospital District, 427 F.

2d 468, 473 (Sth Cir. 1970; Harrison v. Brooks, 446 F. 2d

404 (1st Cir. 1971); Rackin v. University of Pennsylvania,

386 F. Supp. 992 (E.D. Pa. 1974); Brown v. Villanova Uni-

versity, 378 F. Supp. 342 (E.D. Pa. 1974); Stern v. Massa-

chusetts Indemnity & Life Insurance Co., 365 F. Supp. 433

(E.D. Pa. 1973); Commonwealth v. Local Union No. 542,

347 F. Supp. 268 (E.D. Pa. 1972); cf. Weise v. Syracuse

University, 522 F. Supp. 2d 397 (1975); Thomas v. Eco-

nomic Action Committee, 504 F. 2d 563 (5th Cir. 1974);

Phillips v. Trello, 502 F. 2d 1000 (3rd Cir. 1974). Contra,

Bellamy v. Mason’s Stores, Inc., 508 F. 2d 504 (4th Cir.

1974).

Circuit Judge Oakes toward the close of his dissenting

opinion in the instant case has this perceptive paragraph:

‘‘There is, to be sure, another question, left open

in Griffin v. Breckinridge, 403 U.S. 88, 102 n.9 (1971),

‘whether a conspiracy motivated by invidiously dis-

criminatory intent other than racial bias would be

actionable’ under §1985 (3). A series of recent Snu-

preme Court cases, perhaps the foremost of which is

Taylor v. Louisiana, 419 U.S. 522 (1975), point the

way toward an affirmative answer in cases involving

bias on account of sex. One would estimate that de-

prival of valuable property rights on account of a

person’s gender would constitute a denial ‘of the equal

protection of laws’ within ,1985 (3), as well as within

the Fourteenth Amendment. See Stanton v. Stanton,

421 U.S. 7 (1975); Weinberger v. Wiesenfeld, 420 U.S.

636 (1975); Frontiero v. Richardson, 411 U.S. 677

(1973).’’ App. II, at p. A32.

The decisions of the state courts of New York giv-

ing effect to the sex discrimination conspiracy of the

defendants constitute state action under Shelley v.

Kraemer, 334 U.S. 1 (1948).

Historically, judicial action was considered state action

at the time of the adoption of the Civil Rights Acts. Judi-

cially, the United States Supreme Court settled the matter

in Shelley v. Kraemer, 334 U.S. 1 (1948), involving restrie-

tive covenants. There the Court held:

‘‘The short of the matter is that from the time of the

adoption of the Fourteenth Amendment until the pres-

ent, it has been the consistent ruling of this Court that

the action of the States to which the Amendment has

reference includes action of state courts and state judi-

cial officials. Although, in construing the terms of the

Fourteenth Amendment, differences have from time to

time been expressed as to whether particular types of

state action may be said to offend the Amendment's

prohibitory divisions, it has never been suggested that

the state court action is immunized from the operation

of those provisions simply because the act is that of

the judicial branch of the state government.’’ At 18.

Let us suppose that a group of whites had a section of

land under restrictive covenants against blacks and then

obtained a ruling from the local state court that these re-

strictive covenants were valid despite Shelley v. Kraemer,

334 U.S. 1 (1948). Can there be any doubt that the blacks

could go into the local federal district court and obtain a

ruling that Shelley v. Kraemer, supra, was the law of the

land? The same results should follow where there has been

discrimination against a woman, for discrimination against

women is just as destructive to us as discrimination against

blacks.

Civil Rights Acts provide strong federal remedies

supplementary to state remedies and there need be no

exhaustion of either federal or state remedies in state

courts before resort to federal courts.

The remedies provided by sections 1 and 2 of the Civil

Rights \ct of 1871, 42 U.S.C. §§1983 and 1985 (3) (1970),

are peculiarly for enforcement in the federal courts. And

it is in the federal courts that these remedies have had their

greatest development, particularly in the United States Su-

preme Court. Especially in recent decades has the Court

given effect to the real intent of the framers of the Civil

Rights Acts.

Historically, these remedies were intended for the fed-

eral courts. The Court authoritatively affirmed this fact

oma o*

nee Bee owe

Pitesti teas Dede S acetal es tha sinh eee 48h nies 00 Knit a shee lh. Raine

in Monroe v. Pape, 365 U.S. 167 (1961), and reaffirmed it

two years later in McNeese v. Board of Education, 373 US.

668 (1963).

Monroe v. Pape, 365 U.S. 167 (1961), involved a civil

rights act suit in the federal court based on an illegal search

and seizure in Illinois. The Court sustained the suit despite

the fact that Illinois, by its constitution and laws, outlawed

unreasonable searches and seizures. The Court, after an

exhaustive study of the congressional debates, concluded:

‘‘The debates were long and extensive. It is abundantly

clear that one reason the legislation was passed was

to afford a federal right in federal courts because, by

reason of prejudice, passion, neglect, intolerance or

otherwise, state laws might not be enforced and the

claims of citizens to the enjoyment of rights, privi-

leges, and immunities guaranteed by the Fourteenth

Amendment might be denied by the state agencies.’’

At 180.

After a further study of sections 1 and 2 of the Civil Right

Act of 1871, the Court ruled:

‘* Although the legislation was enacted because of the

conditions that existed in the South at the time, it is

east in general language and is as applicable to Illinois

as it is to the States whose names were mentioned over

and again in the debates. It is no answer that the State

has a law which if enforced would give relief. The

federal remedy is supplementary to the state remedy,

and the latter need not be first sought and refused be-

fore the federal one is inveked. Hence the fact that

Illinois by its constitution and laws outlaws unreason-

able searches and seizures is no barrier to the present

suit in the federal court.’ At 183.

Two years later the Court reaffirmed its holding in

McNeese v. Board of Education, 373 U.S. 668 (1963), a

Civil Rights Act suit based on the fact that in what was

apparently an integrated school in Illinois, the blacks were

put in one part of the school and the whites in another. The

district court dismissed the complaint because the petition-

ers had not exhausted their administrative remedies under

Illinois law. The Seventh Circuit affirmed, but the Supreme

Court reversed, saying:

‘*We have previously indicated that relief under the

Civil Rights Act may not be defeated because relief

was not first sought under state law which provided

aremedy.’’ At 671.

Accord, Wilwording v. Swenson, 404 U.S. 249 (1971).

Under sections i and 2 of the Civil Rights Act of 1871,

42 U.S.C. §§1983, 1985 (3) (1970), the federal courts have

given not bac compensatory damages but injunctive relief

as well. Moreover, the courts have held that these provi-

sions are an exception to the anti-injunction statute, 28

U.S.C. §2283 (1970). The United States Supreme Court

approached this question in Lynch v. Household Finance

Corp., 405 U.S. 538 (1972), rev’g 318 F. Supp. 1111 (D.

Conn. 1970), and settled it in Mitchum v. Foster, 407 U.S.

225 (1972).

In Lynch v. Household Finance Corp., a three-judge

federal district court in Connecticut refused te consider

the constitutionality of Connecticut prejudgment and gar-

nishment statutes ‘‘for lack of Civil Rights Act jurisdic-

tion,’’ 318 F. Supp. at 1114. But the Supreme Court re-

ora and remanded the case. Mr. Justice Stewart pointed

‘* Because of the extrajudicial nature of Connecticut

garnishment, an injunction against its maintenance is

not, therefore, barred by the terms of §2283. In light

of this conclusion, we need not decide whether (1983

is an exception to $2283 ‘expressly authorized by Act

of Congress.’ We have explicity left that question

open in other decisions. And we may put it to one

side in this case because the state act that the federal

court was asked to enjoin was not a proceeding ‘in

a State court’ within the meaning of §2283.’’ 405 U.S.

at 556.

Later in the term, in Mitchum v. Foster, 407 U.S. 225

(1972), the Court did hold that the Civil Rights Act rem-

edies were within the exception of 28 U.S. §2283 (1970).

Mitchum v. Foster involved a state obscenity proceeding.

The Court, in an opinion by Mr. Justice Stewart, reasoned:

‘*Section 1983 was originally §1 of the Civil Rights

Act of 1871. 17 Stat. 13. It was ‘modeled’ on §2 of

the Civil Rights Act of 1866, 14 Stat. 27, and was

enacted for the express purpose of ‘enfore(ing) the

Provisions of the Fourteenth Amendment.’ 17 Stat.

13. The predecessor of §1983 was thus an important

part of the basic alteration in our federal system

wrought in the Reconstruction era through federal

legislation and constitutional amendment. As a re-

sult of the new structure of law that emerged in the

post-Civil War era—and especially of the Fourteenth

Amendment, which was its centerpiece—the role of the

Federal Government as a guarantor of basic federal

rights against state power was clearly established.

Monroe v. Pape, 365 U.S. 167; McNeese v. Board of

Education, 373 U.S. 668; Shelley v. Kraemer, 34 U.S.

1; Zwickler v. Koota, 389 U.S. 241, 245-249; H. Flack,

The Adoption of the Fourteenth Amendment (1908) ;

J. tenBroek, The Anti-Slavery Origins of the Four-

teenth Amendment (1951). Section 1983 opened the

federal courts to private citizens, offering a uniquely

federal remedy against incursions under the claimed

authority of state law upon rights secured by the Con-

stitution and laws of the Nation.

‘‘Tt is clear from the legislative debates surround-

ing passage of $1983’s predecessor that the Act was

intended to enforce the provisions of the Fourteenth

Amendment ‘against State action, * * * whether that

action be executive, legislative, or judicial.’ Ex parte

Virginia, 100 U.S. 339, 346 (emphasis supplied). Pro-

ponents of the legislation noted that state courts were

being used to harass and injure individuals, either be-

cause the state courts were powerless to stop depriva-

tions or were in league with those who were bent upon

abrogation of federally protected rights.’’ At 238-40.

Mr. Justice Stewart then gave a review of legislative

history and concluded for the Court:

‘‘This legislative history makes evident that Con-

gress clearly conceived that it was altering the rela-

tionship between the States and the Nation with re-

spect to the protection of federally created rights; it

was concerned that state instrumentalities could not

protect those rights; it realized that state officers

might, in fact, be antipathetic to the vindication of

those rights; and it believed that these failings ex-

tended to the state courts.’’ At 242.

The petitioner, Barbara Gutmacher Girard, did not

have to bring her Civil Rights Act claims that the defend-

ants, Lawrence Wilkinson, John H. Stookey, and Thomas

ee ee ee

oe Ee

hid 2t~

i its tanetccientritirtecitcnaricerin ai ee Oe ee ee, eS Te eee ee eee enn weer

BE. Murray, discriminated against her solely because she

was a woman in the state courts. Instead, she brought

her claims to the appropriate federal forum, the United

States District Court for the Southern District of New

York.

The conspiring defendants, by their arbitrary con-

duct in attempting to throw Barbara Gutmacher Girard

out of her marital home without any opportunity for

a hearing or a statement of any reasons, violated our

concept of due process, of fundamental fairness.

The conspiring defendants, Lawrence Wilkinson, John

H. Stookey, and Thomas E. Murray, treated Barbara Gut-

macher Girard with contempt. They gave her no hearing.

They gave her no reason why they did not want her. In-

stead, they sought arbitrarily to throw her and her 9-year-

old daughter, Nicole, out of the $300,000 fourth floor apart-

ment at 1125 Fifth Avenue, in which Barbara Gutmacher

Girard had been one of the original occupants and which

was her marital home. Such arbitrary and unreasoned con-

duct violates our concept of due process, of fundamental

fairness.

The concept of due process has been continuously evolv-

ing for some eight centuries. One can date this develop-

ment from 1178, when Henry IT appointed five judges for

the whole kingdom and told them ‘‘to do right judgment.”’

2 English Historical Documents 482 (D. Douglas & G.

Greenway gen. ed. 1953). Sufficient legal development fol-

lowed so that a generation later, when Henry IT’s son John

misused his powers, the result was the Magna Charta and

John was forced to promise his barons:

‘‘No freeman shall be taken or imprisoned or disseised

or exiled, or in any way destroyed, nor will go upon

him, nor send upon him, except by the lawful judgment

of his peers or (per legem terrae) by the law of the

land.’’ W. McKechnie, Magna Charta 375 (2d ed.

1914).

In the course of time the concept ‘‘law of the land’’ also

came to mean due process of law. King John’s successors

confirmed and reissued the Magna Charta, sometimes re-

peatedly. In 1354, Edward III (1327-1377), in addition to

his frequent confirmations of the Magna Charta, further

provided:

‘‘(N)o Man of what Estate of Condition that he be,

shall be put out of Land or Tenement, nor taken, nor

imprisoned, nor disinherited, nor put to Death, without

being brought in answer (par due process de lei) by

due Process of Law.’’ 28 Edw. 3, ¢. 3 (1354).

Thus the phrase ‘‘due process of law’’ came into being.

Coke equated the two: ‘‘(B)y the law of the land (that

is to speak it once for all) by the due course, and process

of law.’’ 2 Institutes *46. In this country, we have made

the same identification. Our earlier state constitutions

usually used the phrase, ‘‘by the law of the land.’’ In

Trustees of Dartmouth College v. Woodward, 17 U.S. (4

Wheat.) 518 (1819), Daniel Webster identified the law ef

the land provision of the New Hampshire Constitution

with due process:

‘‘One prohibition is ‘that no person shall be * * *

deprived of his life, liberty, or estate, but by judgment

of his peers, or the law of the land.’ * * *

‘«* * * Have the plaintiffs lost their franchises by ‘due

course and process of iaw?’ By the law of the land

is most clearly intended the general law. * * * The

meaning is, that every citizen shall hold his life, liberty,

property, and immunities, under the protection of the

general rules which govern society.’’ Jd. at 561, 581

(arguments for plaintiffs in error.

Similarly, the Supreme Court equated the due process

clause with the law of the land in Murray’s Lesee v. Ho-

boken Land & Improvement Co., 59 U.S. (18 How.) 272

(1855), its first major decision under the due process clause

of the Fifth Amendment:

‘*The words, ‘due process of law,’ were undoubtedly

intended to convey the sam meaning as the words,

‘by the law of the land,’ in Mayna Charta. Lord Coke

in his commentary on those words, (2 Inst. 50), says

they mean due process of law. The constitutions which

have been adopted by the several States before the

formation of the federal constitution, following the

language of the great charter more closely, generally

contained the words, ‘but by the judgment of his peers,

or the law of the land.’ ’’ Jd. at 276.

In Twining v. New Jersey, 211 U.S. 78 (1908), the Court

through Justice Moody, explained:

‘*There are certain general principles well settled,

however, which narrow the field of discussion and may

serve as helps to correct conclusions. These principles

grow out of the proposition universally accepted by

American courts on the authority of Coke, that the

words ‘due process of law’ are equivalent in meaning

to the words ‘law of the land,’ contained in * * *

Magna Charta. * * *’’

In a yet later case, Hebert v. Louisiana, 272 U.S. 312

(1926), the Court said:

‘*What it (due process clause) does require is that

state action, whether through one agency or another,

shall be consistent with the fundamental principles of

liberty and justice which lie at the base of all onr civil

and political institutions and not infrequently are

designated as ‘law of the land.’’’ Id. at 316-17.

In the recent past, Justices Frankfurter and Harlan

have given us apt statements of the due process concept.

In Bartkus vy. Illinois, 359 U.S. 121 (1959), Justice Frank-

furter explained:

‘* Decisions under the Due Process Clause require close

and perceptive inquiry into fundamental principles of

our society. The Anglo-American system of law is

based not upon transcendental revelation but upon the

conscience of society ascertained as best it may be by

a tribunal disciplined for the task and environed by

the best safeguards for disinterestedness and detach-

ment.’’ Id. at 128.

In his coneurr.ng opinion in Griffin v. Illinois, 351 U.S.

12 (1956), he stated:

‘**Due Process’ is, perhaps, the least frozen concept

of our law—the least confined to history and the most

absorptive of powerful social standards of a progres-

sive soviety.’’ Jd. at 20-21 (concurring opinion).

In Sweezy v. New Hampshire, 354 U.S. 234 (1957), in

a concurring opinion in which Justice Harlan joined, Jus-

tice Frankfurter added:

‘‘The implications of the United States Constitution

for national elections and ‘the concept of ordered

Fen

liberty’ implicit in the Due Process Clause of the Four-

teenth Amendment as against the States * * * were not

frozen as of 1789 or 1868, respectively. While the lan-

guage cf the Constitution does not change, the chang-

ing circumstances of a progressive society for which it

was designed yield new and fuller import to its mean-

ing.’’

Justice Harlan thought due process to be fundamental

fairness. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 181

(1968) (Harlan, J., dissenting).

It is this concept which the courts have been applying to

various membership organizations such as political parties,

economic groups, labor unions, stock exchanges, religious

organizations, Veteran’s associations, and professional

societies. For example, in Silver v. New York Stock Ex-

change, 373 U.S. 341 (1963), the Court held that the New

York Stock Exchange could not deny to two Texas over-the-

counter broker-dealers direct wire connections without the

notice and hearing that they requested. The Court ex-

plained in Footnote 17:

‘‘The basic nature of the rights which we hold to be

required under the antitrust laws in the circumstances

of today’s decision is indicated by the fact that publie

agencies, labor unions, clubs, and other associations

have, under various legal principles, all been required

to afford notice, a hearing, and an opportunity to an-

swer charges to one who is about to be denied a valu-

able right. Goldsmith v. United States Board of Tax

Appeals, 270 U.S. 117; Russell v. Duke of Norfolk,

[1949] 1 All E. R. 109 (C. A.); Fellman, Constitutional

Rights of Association, in The Supreme Court Review,

1961 (Kurland ed.), 74, 104, 112-113; Developments in

the Law—Judicial Control of Actions ot Private Asso-

ciations, 76 Harv. L. Rev. 983, 1026-1037 (1963); see

authorities cited note 18, mfra; cf. Vitarelli v. Seaton,

359 U.S. 535; Cafeteria & Restaurant Workers Union,

Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 894-

895; Willner v. Committee on Character and Fitness,

ante, p. 96.’

In an interesting state case, Van Daele v. Vinet, 51 Ill.

2d 389, 282 N.E.2d 728, cert. denied, 409 U.S. 1007 (1972),

the Supreme Court of Illinois gave due process relief to

retail grocers who had been expelled from membership in a

grocery cooperative because of lack of impartiality of the

cooperative’s board, even though the board followed the

procedure set out in the cooperative’s by-laws for disci-

plinary hearings.

Perhaps the most discussed situation to date involved

the power of the Democratic Party to exelude from its

1972 national convention certain challenged delegates from

California and Tlinois. The California delegates were se-

lected in a ‘*winner-take-all’’ primary. The District of

Columbia Cireuit in Brown v. O’Brien, 469 F.2d 563 (D.C.

Cir.), stey granted, 409 U.S. 1 (1972), vacated, 409 U.S. 816

(1972), and sub nom. Keane v. National Democratic Party,

409 US. 816 (1972), ruled in their favor, reasoning:

**The decision of the Party to exclude these 151 dele-

gates Who were elected in compliance with each of the

party's applicable rules then in foree, jeopardizes the

integrity of the election process, and it therefore in-

jures every voter in the United States and every indi-

vidual and institution which is subject to the authority

of the President. Because we are convinced that the

process of electing the President of the United States

is not, and cannet be placed outside the rule of law, we

set aside the arbitrary and unconstitutional action of

the Democratic Party."" 469 F. 2d at 570.

The Supreme Court first granted a stay and subsequent-

ly vacated the judgment and remanded the case for a deter-

mination whether it had become moot.

American labor unions have also found themselves sub-

ject to the expanding reach of due process, of fundamental

fairness. In two cases, NLRB vy. Textile Workers, 409 U.S.

213 (1972), and Booster Lodge No. 405 v. NLRB, 412 U.S.

84 (1973), the Court held that unions could not fine strike-

breakers who had lawfully resigned from their unions dur-

ing the strike period but later returned to work.

Members of stock exchanges, involved in disciplinary

proceedings, also have taken their respective exchanges to

court with due process claims. In Crimmins v. American

Stock Exchange, Inc., 346 F. Supp. 1256 (S.D. N.Y. 1972),

the court, although ruling against the right to counsel in

that case, nevertheless said: ‘‘We think that the day is

long gone when a national stock exchange can be considered

a private club when it conducts disciplinary proceedings

against its members or their employees.’’

In Villani v. New York Stock Exchange, Inc., 348 F.

Supp. 1185 (8.D. N.Y. 1972), counsel for the Exchange ad-

vised the court by letter that the Board of Governors of the

Exchange approved various recommendations to change

the hearing procedures and disciplinary proceedings con-

ducted by the Exchange. In a subsequent letter, counse!

reported that both the SEC and the membership of the Ex-

change had approved the recommendations, one of which

abolished the Exchange’s ‘‘no-counsel rule’’:

‘*A person, firm or corporation shall have the right to

be represented by legal or other counsel in any hearing

and review thereof held pursuant to the provisions of

this Article and in any investigation before any com-

mittee, officer or employee of the Exchange authorized

by the Board of Directors.’’ Jd. at 1189, quoting §23,

Article XIV of the Constitution of the New York Stock

Exchange.

For a fuller discussion see O. J. Rogge, An Overview of

Administratwe Due Process (pts. 1 and 2), 19 Villanova

Law Review 1, 2-4, 197, 251-55 (1973).

There are two due process clauses in the federal Con-

stitution, one in the Fifth Amendment and one in the Four-

teenth Amendment. The Fifth Amendment is primarily

for federal action and the Fourteenth Amendment primar-

ily for state action. However, our concept of due process,

of fundamental fairness, is more pervasive. Barbara Gut-

macher Girard, who, with her husband, had the $300,000

four-floor apartment at 1125 Fifth Avenue, should not

arbitrarily be thrown out without any notice, any hearing,

or any statement of reasons. She is entitled to fundamental

fairness, to due process, at their hands. This was her

right, her due, as one of the privileges and immunities of

a citizen of the United States. It was part of her due under

the due process clauses of the Fifth Amendment and Four-

teenth Amendments.

Conclusion

The Court should grant this petition for a writ of

certiorari and rule once again, as it has repeatedly in

the recent past, that we can no more afford discrimina-

tions based on sex than those based on race.

Respectfully submitted,

O. Joun Rocce

Attorney for Petitioner

777 Third. Avenue

New York, New York 10017

Of Counsel:

O. Joun Rocce

Freperick E. M. Bation

Howarp D. RessLer

APPENDICES

APPENDIX I

Opinion of Ward, J.

396 F. Supp. 450 (S.D.N.Y. 1975)

UNITED STATES DISTRICT COURT

SourHern District or New York

75 Civ. 646 R.J.W.

BarBaRa GIRARD,

Plaintiff,

against

947TH SrREET AND FirrH AveNvE Corporation, LAWRENCE

Wixinson, Jonn H. Srookey and THomas E. Murray,

Defendants.

Appearances

Bauion, Stott & Irzier, Esqs.

Attorneys for Plaintiff

Kennetu 8. Kyicrn, Esq.

Howarp D. Resster, Esq.

Of Counsel

Suea Goutp Ciimenko Kramer & Casey, Esqs.

Attorneys for Defendants

Martin I. Suexton, Esq.

James H. Scuvuyier, Esq.

Of Counsel

Appendia I—Opinion of Ward, J.

Warp, J.

Defendants, 94th Street and Fifth Avenue Corporation

(‘‘the corporation’’) and the members of its board of

cirectors, individually, move to dismiss the complaint pur-

suant to Rule 12(b) (6), Fed. R. Civ. P., for failure to state

a claim upon which relief can be granted, or in the alter-

native, for summary judgment pursuant to Rule 56, Fed.

R. Civ. P., on grounds of res judicata. Since matters out-

side the pleadings have been presented to and not excluded

by the Court, the Rule 12(b)(6) motion will be treated as

one for summary judgment.

In 1968, during their marriage, plaintiff’s former hus-

band purchased shares of capital stock of the corporation

and became owner, for the term beginning January 15, 1968

and ending May 31, 1981, of the proprietary lease to the

fourth floor of 1125 Fifth Avenue, New York. Thereafter,

plaintiff anc her husband entered into a separation agree-

ment by which the latter assigned to plaintiff his right,

title and interest in the capital stock and proprietary lease,

and vacated the premises. The corporation was subse-

quently notified of the assignment. Plaintiff requested that

she be recognized as the owner of the stock and as the

lawful tenant of the premises. The board of directors,

giving no reason, refused to consent to the assignment of

the lease and rejected the demand by plaintiff to transfer

the stock on its books to her.

Plaintiff commenced an action against the corporation

in the Supreme Court of the State of New York, County

of New York seeking a declaratory judgment that the cor-

poration’s refusal was arbitrary, capricious and unreason-

Appendia I—Opinion of Ward, J.

able, and a court order compelling it to transfer the stock

on its books to her and to consent to the assignment of the

proprietary lease. The corporation moved for summary

judgment, which was granted. The Court held that by the

terms of the proprietary lease the corporation had the right

to refuse to consent to the transfer of the lease to plaintiff

for any reason it deemed satisfactory except, as the Court

noted parenthetically, for reasons prohibited by civil rights

laws. The Appellate Division, First Department, affirmed

the order and judgment. Plaintiff’s motion for leave to

appeal to the Court of Appeals was denied.

Claiming that her requested ownership transfer was

rejected for reasons prohibited by the Fourteenth Amend-

ment and the civil rights laws derived therefrom, plaintiff

instituted her present action in federal court. She alleges

that defendants have violated 42 U.S.C. §1982,' by refusing

to consent to the requested assignment solely because she

is female. She also alleges under 42 U.S.C. §1985(3)? that

1. 42 U.S.C. §1983 reads:

§1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State, or Territory, sub-

jects, or causes to he subjected, any citizen of the United States

or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for redress.

2. 42 U.S.C. §1985(3) reads:

Depriving persons of rights or privileges

(3) If two or more persons in any State or Territory

conspire or go in disguise on the highway or on the prem-

ises of another, for the purpose of depriving, either directly

or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities

(footnote continued on next page)

Appendix I1—Opinion of Ward, J.

defendants have conspired to deprive her of her procedural

due process rights by refusing to provide her an opportu-

nity to be heard at any discussion pertaining to her inter-

ests by the board of directors of the corporation, and have

conspired to deprive her of substantial property rights in

the subject premises solely because she is a female. In

addition, she alleges violation of the New York Human

Rights Law, New York Executive Law §296(5)(a)(1)

(1972).* Plaintifi seeks judgment directing that the cor-

under the laws; or for the purpose of preventing or hindering

the constituted authorities of any State or Territory from giving

or securing to all persons within such State or Territory the

equal protection of the laws; or if two or more persons conspire

to prevent by force, intimidation, or threat, any citizen who is

lawfully entitled to vote, from giving his support or advocacy in

a legal manner, toward or in favor of the election of any law-

fully qualified person as an elector for President or Vice Presi-

dent, or as a Member of Congress of the United States; or to

injure any citizen in person or property on account of such sup-

port or advocacy; in any case of conspiracy set forth in this

section, if one or more persons engaged therein do, or cause to

be done, any act in furtherance of the object of such conspiracy,

whereby another is injured in his person or property, or deprived

of having and exercising any right or privilege of a citizen of the

United States, the party so injured or deprived may have an

action for the recovery of damages, occasioned by such injury

or deprivation, against any one or more of the conspirators.

3. New York Human Rights Law, New York Executive Law

§296(5)(a)(1) reads:

5. (a) It shall be an unlawful discriminatory practice for

the owner, lessee, sub-lessee, assignee, or managing agent of, or

other person having the right to sell, rent or lease a housing ac-

commodation, constructed or to be constructed, or any agent or

employee thereof :

(1) To refuse to sell, rent, lease or otherwise to deny to or

withhold from any person or group of persons such a housing

accommodation because of the race, creed, color, national origin

or sex of such person or persons.

Appendix I1—Opinion of Ward, J.

poration and the members of its board of directors recog-

nize her as the lawful owner of the shares of stock and

proprietary lease in the premises, and enjoining them from

interfering with her peaceful possession of the premises.

Defendants contend that plaintiff has failed to state an

adequate federal cause of action. Specifically, they argue

that her §1983 claim must be dismissed for failure to set

forth facts showing any deprivation under color of state

law of any right, privilege or immunity and that her §1985

(3) claim must be dismissed for failure to establish a

conspiracy cognizable under the statute. Alternatively, de-

fendants contend, if plaintiff states a sufficient claim for

relief on either ground, the doctrine of res judicata pre-

cludes their assertion here since she has already litigated

this controversy in staie court, where she had full oppor-

tunity to assert all claims.

28 U.S.C. §1331(a) gives this Court jurisdiction to hear

the federal questions raised in plaintiff’s complaint since

the enforcement of rights arising under the Constitution

and laws of the United States is basic to the relief she

seeks and the claims she alleges are neither insubstantial

nor frivolous. Bell v. Hood, 327 U.S. 678, 683 (1945) ; Moore

v. Central R. Co. of New Jersey, 185 F.2d 369, 371 (2d Cir.

1950). Jurisdiction is not defeated by the possibility that

the complaint might fail to state a cause of action. That

question must be decided after, and not before, the Court

assumes jurisdiction. Bell v. Hood, supra at 682; Olson

v. Board of Education of Union Free School District, Mal-

verne, N.Y., 250 F. Supp. 1000, 1004 (E.D.N.Y. 1966).

To state a claim for relief under 42 U.S.C. §1983, a

plaintiff must show (1) a deprivation of rights, privileges

Appendiz I—Opinion of Ward, J.

or immunities secured by the Constitution and laws of the

United States, and (2) causation of such deprivation by a

person acting under color of state law. ‘‘In cases under

§1983, ‘under color of law’ has consistently been treated as

the same thing as the ‘state action’ required under the

Fourteenth Amendment.’’ United States v. Price, 383 U.S.

787, 794 u.7 (1966) (citing cases). An action, especially

under the Civil Rights Act, should not be dismissed at the

pleading stage unless it appears to a certainty that plaintiff

is entitled to no relief under any set of facts which could

be proved in support of her claim, Escalera v. New York

City Housing Authority, 425 F.2d 853, 857 (2d Cir. 1970).

Nevertheless, plaintiff’s §1983 claim must be dismissed for

failure to allege facts sufficient to support a finding of

‘*state action.’’

Citing Shelley v. Kraemer, 234 U.S. 1 (1948), plaintiff

argues that the requisite state action is present to support

her (1983 claim because the courts of the State of New

York have ratified and enforced the provision in the pro-

prietary lease vesting the board of directors with near

absolute authority to reject requested ownership transfers.

While Shelley v. Kraemer does establish that judicial

enforcement of a private discriminatory contract may con-

stitute state action for purposes of the Fourteenth Amend-

ment, giving rise to a claim under civil rights laws, the

state judicial action involved in Shelley is clearly distin-

guishable from that presented here. In Shelley diserimina-

tory purposes of a racially restrictive covenant were secured

only by reason of the state court’s imprimatur. The state

had thus provided ‘‘the full coercive power of government

Appendizc [Opinion of Ward, J.

te deny to petit’cners, on the grounds of race or eolor, the

enjoyment of property rights in premises which petitioners

{were] willing and financially able to acquire and which

the grantors [were] willing to sell. The difference between

judicial enforcement and nonenforcement of the restrictive

covenants [was] the difference between being denied rights

of property available to other members of the community

and being awarded full enjoyment of those rights on an

equal footing.’’ 334 U.S. at 19. However, the Court noted,

‘‘the restrictive agreements standing alone cannot be re-

garded as violative of any right guaranteed to petitioners

by the Fourteenth Amendment ... That Amendment erects

no shield against merely private conduct, however, dis-

eriminatory or wrongful.’’ 334 U.S. at 13.

In the instant case there is no restrictive covenant con-

tained in the proprietary lease which expressly prohibits

transfers of ownership on the basis of sex. The lease

merely provides that no assignment by a lessee shall be

effective against the lessor without its prior consent. The

Supreme Court of the State of New York upheld the valid-

ity of this provision and acknowledged the broad power

of the board of directors to refuse to consent to requested

assignments for any reason deemed satisfactory to it except

those prohibited by civil rights laws. Even if the board’s

refusal was motivated by a constitutionally impermissible

purpose, any deprivation suffered by plaintiff as a conse-

quence was completed prior to the state court proceedings.

Unlike in Shelley, the action by the state court here did

not effectuate a discriminatory purpose which could not

have been secured but for its decision.

Finding plaintiff’s relianee on Shelley v. Kraemer mis-

placed, this Court must determine whether plaintiff has

Appendix I1—Opinion of Ward, J.

alleged facts sufficient to establish the necessary ‘‘state

action’’ to support her §1983 claim. Plaintiff argues no

other nexus between the state and defendants’ allegedly

discriminatory conduct but the state court’s decision.

In order to subject conduct that is formally private to

the limitations of §1983 and the constitutional amendments,

it must be shown (1) that the degree of state involvement

with the private institution is ‘‘significant,’’ (2) that the

state’s involvement is with the activity that caused the

injury (the nexus requirement), and (3) that the state’s

involvement aids, encourages or connotes approval of the

complained of activity. Moose Lodge No. 107 v. Irvis, 407

U.S. 163, 173 (1971); Barrett v. United Hospital, 376 F.

Supp. 791, 797 (S.D.N.Y. 1974) ; see also, Jackson v. Metro-

politan Edison Co., 419 U.S. 345, 351 (1975). However,

our circuit recognizes a double ‘‘state action’’ standard:

‘¢A less onerous test for cases involving racial discrimina-

tion, and a more rigorous standard for other claims.’’

Barrett v. United Hospital, supra at 797; Jackson v. The

Statler Foundation, 496 F.2d 623, 628-29 (2d Cir. 1974)

(citing cases). The Barrett court noted that the rationale

behind the exception for cases involving racial discrimina-

tion may make it equally applicable to cases involving sex

or age discrimination. 376 F. Supp. 797 n.26.

Since plaintiff bases her (1983 claim on alleged sex dis-

crimination, this Court will depart from the three-pronged

state action test and more closely scrutinize the state court’s

involvement to determine whether the alleged discrimina-

tion by defendants was impregnated with governmental

approval. Under this stricter standard, ‘‘indirect govern-

mental participation in the management of an organization

Appendia I—Opinion of Ward, J. \

is persuasive evidence of the existence of ‘state action’

where the participation is both substantial and other than

neutral.’’ Jackson v. The Statler Foundation, 496 F.2d

623, 635 (2d Cir. 1974). Upon review of the evidence

presented, it cannot be said that the action of the state

court here was either ‘‘substantial’’ or ‘‘other than neu-

tral.’’ The state has merely provided a forum to determine

the rights of the parties; it has no interest whatever in the

outcome of the private litigation. See, Stevens v. Frick,

372 F.2d 378, 381 (2d Cir. 1967) (citing cases). The pur-

ported discrimination was not secured only by reason of

the state court’s decision. Cf., Shelley v. Kraemer, 334

U.S. 1 (1948). To say that an open courthouse door consti-

tutes ‘‘state action’’ is to demean the judicial process.

Such a conclusion would provide future litigants an oppor-

tunity to raise a §1983 claim, based on conclusory allega-

tions of discrimination, every time a state court construed

a contractual provision, nondiscriminatory on its face,

against the litigant’s interests. Accordingly, plaintiff’s

§1983 claim is dismissed for failure to establish the requi-

site element of ‘‘state action.’’

Defendants next challenge the sufficiency of plaintiff’s

§1985(3) claim. In Griffin v. Breckenridge, 403 U.S. 88

(1970), the Supreme Court set the framework for an ade-

quate complaint under §1985(3). A complaint must allege

(1) a conspiracy between two or more persons for the pur-

pose of depriving any person or class of persons of the

equal protection of the laws, or of equal privilege and

immunities under the law, and (2) an act by one of the

conspirators in furtherance of the object of the conspiracy

whereby another person was (a) injured, or (b) deprived

A10

Appendix I1—Opinion of Ward, J.

of exercising any right or privilege of a citizen of the

United States.

Existence of a conspiracy under §1985(3) presents a

question of fact. Crawford v. City of Houston. Texas, 386

F. Supp. 187, 192 (S.D. Texas 1974). Viewing the com-

plaint in a light most favorable to plaintiff, and accepting

the facts alleged as true, 2A Moore’s Federal Practice

12.08 (2d ed. 1974), the Court nevertheless finds that plain-

tiff has failed to allege facts sufficient to constitute a con-

spiracy within the meaning of §1985(3) and, therefore, her

§1985(3) claim must be dismissed.

The conduct challenged by plaintiff’s §1985(3) claim is

the action of the individual defendants rejecting her re-

quested ownership transfer taken while acting in their offi-

cial capacity as directors of the corporation, which she

alleges constitutes a conspiracy to deprive her of her civil

rights and substantial property rights solely because she

is female.

The lease agreement in controversy stipulates that the

directors must consent to all proposed assignments of own-

ership before they are effective against the lessor. While

plaintiff specifically states that the board of directors con-

trols the corporation, she never alleges that the directors

acted outside their official capacity in reaching their pur-

ported discriminatory decision. Plaintiff, thus, seeks to

extend §1985(3) to discriminatory business decisions par-

ticipated in by members of one business entity. Cf., Baker

v. Stuart Broadcasting Company, 505 F.2d 181 (8th Cir.

1974). In dealing with this precise issue, the Seventh Cir-

cuit in Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir.

1972) stated:

All

Appendix I1—Opinion of Ward, J.

. . . If the challenged conduct is essentially a single

act of discrimination by a single business entity, the

fact that two or more agents participated in the de-

cision or in the act itself will normally not constitute

the conspiracy contemplated by this statute.

Here, the cooperative corporation established the me-

dium, its board of directors, through which it acted in

ratifying assignments of ownership. Although the de-

cision plaintiff challenges reflected the collective judgment

of ‘‘two or more persons,’’ the decision cannot be con-

sidered the product of a conspiracy when the board was

merely carrying out the corporation’s managerial policy.

Following the rule stated in Nelson Radio & Supply Co. v.

Motorola, 200 F.2d 911, 914 (5th Cir. 1952), cert. denied,

345 U.S. 925 (1953), when acting in an official capacity,

‘*the acts of the agent are the acts of the corporation... .

A corporation cannot conspire with itself anymore than a

private individual can.’’ See also, Cole v. University of

Hartford, 43 U.S.L.W. 2418 (D. Conn. Apr. 15, 1975). That

these individuals are, coincidentally, shareholders, tenants

and occupants of apartments in the building owned by the

defendant corporation, is irrelevant to this Court’s deter- _

mination of a §1985(3) conspiracy, for plaintiff has not —

alleged that these directors were actuated by any inde-

pendent personal state in achieving the corporation’s pur-

ported illegal objective. See, Cohen v. Illinois Institute of

Technology, 384 F. Supp. 202, 205 (N.D. Ill. 1974). Ae-

cordingly, plaintiff’s §1985(3) claim is dismissed for fail-

ure to allege a conspiracy cognizable under the statute.

Having concluded that plaintiff’s federai claim must

be dismissed for failure to state a cause of action, this

Al2

Appendix I—Opinion of Ward, J.

Court, in its discretion, will also dismiss her pendent state

claim. Plaintiff will suffer minimal inconvenience by the

dismissal of her state claim at a point early in the course

of this litigation. Following the Supreme Court’s ruling in

United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966),

Needless decisions of state law should be avoided both

as a matter of comity and to promote justice between

the parties, by procuring for them a surer-footed read-

ing of applicable law. Certainly, if the federal claims

are dismissed befpre trial, even though not insubstan-

tial in a jurisdictional sense, the state claims must be

dismissed as well.

This Court’s determinatién that plaintiff’s federal claims

are inadequate is expressly limited to the finding that she

has failed to establish the necessary ‘‘state action’’ re-

quired by §1983 or an actionable conspiracy required by

§1985(3). Thus, this Court does not reach the substantive

issue of sex discrimination.

Since this Court has determined that plaintiff has failed

to state a federal claim upon which relief may be granted,

the Court need not reach the question of the res judicata

effect of the prior state court judgment.

For the foregoing reasons, defendants’ motion for sum-

mary judgment is granted.

Settle order on notice.

Dated: June 30, 1975

/s/ Robert J. Ward

U.S. D. J.

Al3

APPENDIX II

Opinion of Second Circuit

UNITED STATES COURT OF APPEALS

For THE Seconp Crrcvit

No. 372—September Term, 1975.

(Argued October 1, 1975 Decided January 13, 1976.)

Docket No. 75-7443

—_——n ee

BarBaRa GIRARD,

Plaintiff-A ppellant,

947TH STREET AND FirtH AVENUE CoRPORATION, LAWRENCE

Wiikinson, Jonn H. Srookey and THomas E. Murray,

Defendants-A ppellees.

$$ $e

Before:

WatTerRMAN, Oakes and MEsKILL,

Circuit Judges.

Appeal from an order of the United States District

Court for the Southern District of New York, Robert J.

Ward, District Judge, granting summary judgment to de-

Al4

Appendix I1—Opinion of Second Circuit

fendants dismissing plaintiff’s 42 U.S.C. §1983 claim for

lack of ‘‘state action’’ and plaintiff’s 42 U.S.C. §1985(3)

claim on the ground that defendants did not enter into the

requisite conspiracy in refusing to approve of an assign-

ment of a lease or a transfer of stock. Plaintiff’s pendent

state claim was also dismissed.

Affirmed.

——

O. Joun Rocce, New York, New York (Ballon, Stoll

& Itzler, New York, New York, of counsel), for

Appellant.

Martin I. SHetton, New York, New York (Geoffry R.

Handler; James H. Schuyler, Shea, Gould,

Climenko, Kramer & Casey, New York, New York,

of counsel), for Appellees.

0 oOo

Meski1, Circuit Judge:

This is an appeal from an order of the Unted States

District Court for the Southern District of New York,

Robert J. Ward, District Judge, granting defendants’

tion for summary judgment by dismissing plaintiff’s 42

U.S.C. §1983' claim for failure to establish the necessary

mo-

1. 42 U.S.C. $1983 reads:

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, subjects,

or causes to be subjected, any citizen of the U nited States or

other person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress.”

Al5

Appendix I1—Opinion of Second Circuit

‘‘state action,’’ dismissing plaintiff’s 42 U.S.C. §1985(3)?

claim because plaintiff did not establish the actionable

‘‘conspiracy’’ required, and dismissing plaintiff’s pendent

state claim. Girard v. 94th Street and Fifth Avenue Corp.,

396 F.Supp. 450 (S.D.N.Y., 1975).

In 1968, during their marriage, plaintiff’s former hus-

band purchased 497 shares of stock from 94th Street and

Fifth Avenue Corporation (‘‘the corporation’’), the owner

and manager of a cooperative apartment building in New

York City. As part of that transaction, Mr. Girard ob-

tained a proprietary lease to the fourth floor of the build-

ing. The Stock Certificate contains a restriction that the

shares represented thereby may be sold only to the cor-

poration or to an assignee of the proprietary lease after

compliance with certain provisions of the proprietary lease,

which required that Mr. Girard obtain the written consent

of the board of directors before any assignment of his

interest in the apartment could become effective; in the

event of a violation of this restriction, the corporation

could terminate the lease.

2. The pertinent part of 42 U.S.C. §$1985(3) reads:

“If two or more persons in any State or Territory conspire or

go in disguise on the highway or on the premises of another, for

the purpose of depriving, either directly or indirectly, any person

or class of persons of the equal protection of the laws, or of equai

privileges and immunities under the laws; . . . in any case of con-

spiracy set forth in this section, if one or more persons engaged

therein do, or cause to be done, any act in furtherance of the object

of such conspiracy, whereby another is injured in his person or

property, or deprived of having and exercising any right or privi-

lege of a citizen of the United States, the party so injured or

deprived may have an action for the recovery of damages, occa-

sioned by such injury or deprivation, against any one or more of

the conspirators.”

Al6

Appendix I1—Opinion of Second Circuit

In 1973, as part of a separation agreement between

plaintiff and her husband, Mr. Girard assigned his interest

in the apartment to plaintiff in lieu of alimony; the separa-

tion agreement was incorporated into the judgment of di-

vorce granted later that year. No consent to assignment

from the board of directors had been solicited or received.

When plaintiff subsequently requested that she be recog-

nized as the lawful stockholder and tenant, the board of di-

rectors, giving no reason, refused its consent, rejected

plaintiff’s demand that the stock be transferred from

Stephen Girard to Barbara Girard and refused to register

the transfer on the books of the corporation.

Plaintiff then initiated suit (‘‘ Action #1’’) in the Su-

preme Court of New York seeking both a declaration that

the corporation’s refusal was arbitrary, capricious, and un-

reasonable and an order compelling the corporation to

transfer the stock on its books to her and to consent to

an assignment of the lease. The corporation commenced

its own action (‘‘ Action #2’’) for possession and eviction

because of the unauthorized assignment and the failure to

pay maintenance costs. The state court granted defendant’s

motion for summary judgement in Action #1, finding that

the consent provision of the lease was enforceable under

state law and that ‘‘the cooperative apartment corporation

had the right to refuse to consent to the transfer of the

lease to plaintiff for any reason deemed satisfactory to

it (except, of course, those prohibited by the Civil Rights

Laws).’’ The Appellate Division, First Department, af-

firmed the order and judgment. 46 App.Div.2d 848, 362

N.Y.S.2d 405 (1974). Plaintiff’s motion for leave to appeal

to the New York Court of Appeals was denied.

Al7

Appendix I11—Opinion of Second Circuit

Plaintiff then instituted this suit, alleging that the cor-

porate defer lant and the individual defendants, as its of-

ficers and board of directors, violated her rights under 42

U.S.C. §1983 by refusing to consent to the assignment of

the lease solely because shc is female. She also alleged

that defendants conspired to deprive her of her civil rights

because of her sex, a violation of 42 U.S.C. §1985(3).

Finally, plaintiff alleged that defendants violated New

York Executive Law (§296(5)(a)(1) (1972).2 Plaintiff

sought a declaration of her rightful ownership of the stock

and proprietary lease and an injunction preventing any

wrongful interference with her peaceful possession of the

premises.

I. Plaintiff’s Claim Under 42 U.S.C. 41983

For the plaintiff to prevail under 42 U.S.C. §1983 she

must prove that the defendant, under color of any statute,

ordinance, regulation, custom or usage of any state, has

deprived her of a right secured by the Constitution and

laws of the United States. Adickes v. Kress & Co., 398

U.S. 144, 150 (1970). An act chargeable to the state is

a necessary element to be pleaded and proved. Plaintiff

asserts that the judgment rendered by the state court after

Action #1 and Action #2 had been consolidated censti-

tutes state action for 41983 purposes.

3. New York Executive Law §296(5)(a)(1) reads:

“Tt shall be an unl» wful discriminatory practice for the owner,

lessee, sub-lessee, assignee, or managing agent of, or other person

having the right to sell, rent or lease a housing accommodation,

constructed or to be constructed, or any agent or employee

thereof :

(1) To refuse to sell, rent, lease or otherwise to deny to or

withhold from any person or group of persons such a housing

accommodation because of the race, creed, color, national

origin or sex of such person or persons.”

A18

Appendix II1—Opinion of Second Circuit

Certainly a state court judgment can be state action.

Shelley v. Kraemer, 334 U.S. 1 (1948). We must decide if

within the meaning and scope of $1983 the state court’s

enforcement of the lease provision is a deprivation by state

action of a right secured to plaintiff by that statute and

the Constitution. In Shelley v. Kraemer, supra, 334 U.S.

at 4, the Supreme Court defined the question before it as

‘‘the validity of court enforcement of private agreements,

generally described as restrictive covenants, which have as

their purpose the exclusion of persons of designated race

or color from the ownership or occupancy of real prop-

erty.’’ The white seller in that case had agreed to sell

property to a black purchaser contrary to an agreement

among property owners. Another owner sought to prevent

the transfer by seeking enforcement of the agreement

through court action. While stating that the private re-

strictive agreement itself did not violate Fourteenth

Amendment rights, where the purpose of the agreements

were secured only by judicial enforcement, the state was a

participant within the meaning of the Fourteenth Amend-

ment. Shelley v. Kraemer, supra, 334 U.S. at 13. The pos-

ture of the present ease is significantly different from the

situation in Shelley, however. The contested provision in

Shelley was racially discriminatory on its face. The lease

provision in question here, requiring consent of the board

of directors before transfer is effective, can only be de-

scribed as neutral ; there is no suggestion of any prohibition

of transfer of ownership on the basis of sex.

Summarizing prior holdings dealing with the state ac-

tion concept, the Supreme Court has stated that ‘‘ where the

impetus for the discrimination is private, the State must

Al1g

Appendix II1—Opinion of Second Circuit

have ‘significantly involved itself with invidious discrim-

inations,’ .. . in order for the discriminatory action to fall

within the ambit of the constitutional prohibition.’’ Moose

Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972). This

Court has recognized the existence of a ‘‘double standard’’

of review for state action. In cases involving racial dis-

crimination, a particularly offensive class-based discrimina-

tion, the court has used a ‘‘less onerous”’ test than for other

claims. See Jackson v. Statler Foundation, 496 F.2d 623,

629 (2 Cir. 1974); Weise v. Syracuse University, 522 F.2d

397 (2d Cir. 1975); Barrett v. United Hospital, 376 F.Supp.

791, 797 (S.D.N.Y., 1974). In Weise v. Syracuse Univer-

sity, supra, 522 F.2d at 406, the court applied this less

rigorous standard to a claim of sex discrimination, although

the court was careful to note that .t was not necessary to

put sex discrimination in the same category as race dis-

crimination in that case in order to do so.

Even applying this less burdensome standard, the dis-

trict court below found that the state’s participation here

was solely to provide a disinterested forum. Girard v. 94th

Street and Fifth Avenue Corp., supra, 396 F.Supp. at 455.

See also Stevens v. Frick, 372 F.2d 378, 381 (2 Cir. 1967).

In McGuane v. Chenango Court Inc., 431 F.2d 1189, 1190 (2

Cir. 1970), cert. denied, 401 U.S. 994 (1971), this Court

noted that ‘‘[nJeither, despite some language in Shelley v.

Kraemer ... can state action be found in New York [sic]

providing defendant with the same right to secure the

eviction of a tenant by a proceeding in its courts that it

gives to almost all landlords; the one thing now almost

universally agreed is that such a rationale for that land-

A20

Appendix II—Opinion of Second Circuit

mark decision would be altogether too far-reaching.’’ Since

it cannot be said that the state’s involvement in this case

approves‘ the allegedly discriminatory conduct, we affirm

the dismissal by the district court of the §1983 claim.

Il. Plaintiff’s Claim Under 42 U.S.C. §1985(3)

In 1971 the Supreme Court, in Griffin v. Breckinridge,

403 U.S. 88, 104 (1971), held that §1985(3) reached certain

private conspiracies to deprive others of their legal rights.

A legally sufficient §1985(3) complaint must aver a con-

spiracy between two or more persons intended to deprive

any person or class of persons of the equal protection of

the laws or of equal privileges and immunities under the

law and an act by one of the conspirators in furtherance

of the conspiracy which injured another person or le-

prived him of exercising any right or privilege of a citizen

of the United States. See Griffin v. Breckinridge, supra,

403 U.S. at 102-103; Cameron v. Brock, 473 F.2d 608, 610

(6 Cir. 1973).

Plaintiff argues that her complaint satisfies the thresh-

old requirement of a conspiracy between two or more per-

sons. She has charged both a corporate defendant and

individual defendants who constitute the officers and entire

4. Indeed the state recently has enacted civil rights legislation

which specifically prohibits cooperatives from refusing to consent to

transfers because of sex. New York Civil Rights Law §19-a(1)

reads :

“No corporation formed for the purpose of the cooperative

ownership of real estate within the state shall withhoid its con-

sent to the sale or proposed sale of certificates of stock or other

evidence of ownership of an interest in such corporation because

of the race, creed, national origin, or sex of the purchaser.”

A21

Appendix I1—Opinion of Second Circuit

board of directors with conspiring to deprive her of her

civil rights because of her sex; the individual defendants

are alleged to ‘‘wholly dominate, operate and control’’ all

of the business and financial affairs of the corporation.

Plaintiff claims that as part of the conspiracy, the defend-

ants advised the president and board of directors to deny

plaintiff continued occupancy of the premises, refused to

permit her to appear at any meeting of the board, refused

to provide her with minutes of the meetings, rejected any

payments offered or any guarantee of her debt, harassed

plaintiff by commencing legal proceedings of eviction and

maliciously telephoned her at unreasonable hours to harass

and annoy her. Defendants contend that no conspiracy

can exist in this case since the corporation’s decisions were

formulated and carried out by its board of directors, the

individual defendants, all of whom acted solely within their

official capacities. Accepting plaintiff’s allegations as true,

the district court found that plaintiff failed to allege facts

sufficient to constitute a conspiracy within the meaning of

§1985(3). Girard v. 94th Street and Fifth Avenue Corp.,

supra, 396 F.Supp. at 455. Decisions in this and other cir-

cuits fully support the district court’s conclusion.

In Dombrowski v. Dowling, 459 F.2d 190 (7 Cir., 1972),

plaintiff alleged that a realty corporation and its employee

denied him rental space because many of his clients were

members of minority groups. Noting that only one firm

was involved and that the individual defendant acted

within the scope of his authority as agent for that firm, the

Court of Appeals for the Seventh Cirenit held that

‘¢ .. the statutory requirement that ‘two or more per-

sons ... conspire...’ is not satisfied by proof that a

A22

Appendix I1—Opinion of Second Circuit

discriminatory business decision reflects the collective

judgment of two or more executives of the same firm

..? 459 F.2d at 196.

Accord, Baker v. Stuart Broadcasting Company, 505 F.2d

181, 183 (8 Cir. 1974); Fallis v. Dunbar, 386 F.Supp. 1117,

1121 (N.D. Ohio, 1974) ; Cohen v. Illinois Institute of Tech-

nology, 384 F.Supp. 202, 205 (N.D. Ill, 974). See also

Neison Radio & Supply Co. v. Motorola, 200 F.2d 911, 914

(5 Cir., 1952), cert. denied, 345 U.S. 925 (1953), for a dis-

cussion of the conspiracy concept in an antitrust context.

Of the numerous authorities plaintiff cites, we find only

Rackin v. University of Pennsylvania, 386 F.Supp. 992

(E.D. Pa., 1974) worthy of discussion.’ In Rackin, plain-

tiff alleged sex discrimination by the University, its officers,

and certain tenured faculty members. The district court

found the Dombrowski rationale inapplicable to the facts

of the case because of the continuing and varied instances

of discrimination and harassment: not only was plaintiff

given tenure in a department other than the one in which

5. Among others, plaintiff also cites Pendrell v. Chatham College,

370 F.Supp. 494 and 386 F.Supp. 341 (W.D. Pa., 1974) and West-

berry v. Gilman Paper Company, 507 F.2d 206 (5 Cir. 1975), in sup-

port of her conspiracy claim. The decision in Pendrell is not instruc-

tive regarding the conspiracy element of a §1985(3) claim. The two

district court opinions in Pendrell focused on the state action aspect of

a §1983 claim against a private university and whether plaintiff satis-

fied the second element of a §1985(3) claim, which is not at issue

here. Insofar as the conspiracy aspect of a §$1985(3) claim is con-

cerned, the district court merely stated that “[h]er complaint clearly

alleges that the ‘defendants, some or all of them, conspired and acted

in concert pursuant to a common scheme. . .’, thus satisfying ele-

ment (1) [conspiring] of Griffin.” Pendrell v. Chatham College,

supra, 370 F.Supp. at 500. Because there is no analysis, it is difficult

to assign much weight to this finding.

Westberry v. Gilman Paper Company, supra, 507 F.2d at 216, was

withdrawn after a rehearing en banc with orders to the district court

to dismiss as moot, “so that it will spawn no legal precedents.”

A23

Appendix II—Opinion of Second Circuit

it was earned, a decision clearly contrary to normal univer-

sity policy, but subsequently she had been assigned only

freshmen courses outside her area of specialty. The court

found that these actions, more than a single decision by

one business entity, supported a conspiracy allegation.

386 F.Supp. at 1005.

The situation at the University of Pennsylvania was

unlike the situation here. Here there is but one single busi-

ness entity with a managerial policy implemented by the

one governing board, while at the University of Pennsy]-

vania, each department had its own disparate responsibili-

ties and functions so that the actions complained of by the

plaintiff were clearly not actions of only one policymaking

body but of several bodies; thus the court correctly held

that the allegations supported a claim of conspiracy among

them. Here plaintiff’s allegations of multiple acts by the

directors are not alleged to be other than the implementa-

tion of a single policy by a single policymaking body.

Indeed, defendants here would seem to be safely within

the area of the Dombrowski decision and quite outside that

of Rackin.

In the instant case, the individual defendants comprise

the board of directors through which,the corporation acted.

The lease agreement specifically required the consent of

the board before any transfer of ownership interest could

be effective. In claiming that defendants advised the board

and president to deny her coniinued occupancy, refused

to permit a personal appearance, provide her with minutes,

accept payments or a debt guarantee and commenced legal

action, plaintiff does not allege that any of the individual

A24

Appendix I1—Opinion of Second Circuit

defendants acted in any other capacity than his official role

of director. As found by the court below,

‘‘ Although the decision plaintiff challenges reflected

the collective judgment of ‘two or more persons,’ the

decision cannot be considered the product of a conspir-

acy when the board was merely carrying out the corpo-

ration’s managerial policy.’’ 396 F.Supp. at 455-56.

Plaintiff next argues that defendants conspired by mali-

ciously telephoning her at unreasonable hours in order to

harass her into giving up her struggle to maintain occu-

pancy. Again, plaintiff does not assert that the individual

defendants were acting other than as officers and directors ;

the complaint identifies them only by their corporate status.

The fact that they were also shareholders and tenants of

apartments in the defendant-corporation’s building does

not aid plaintiff’s case, since she did not allege that the

individual defendants were motivated by any independent

personal stake in achieving the corporation’s objective. In

Cole v. University of Hartford, 391 F.Supp. 888, 893 (D.

Conn., 1975) the court stated that

‘‘(slimply joining corporate officers as defendants in

their individual capacities is not enough to make them

persons separate from the corporation in legal con-

templation. The plaintiff must also allege that they

acted other than in the normal course of their corpo-

rate duties.... ‘[I]t is not alleged that the individual

defendants committed any act of a personal nature

except in connection with the corporate affairs.’ ’’

Accordingly, we hold that plaintiff’s §1985(3) claim

must be dismissed for failure to state an actionable con-

spiracy under the statute.

A25

Appendix I1—Opinion of Second Circuit

Ill. Plaintiff’s State Claim

Plaintiff also alleged a violation of New York Executive

Law §296(5)(a)(1). However, since we have dismissed

plaintiff’s federal claims for failure to state a cause of

action, we will avoid making ‘‘[n]eedless decisions of state

law”’ and, exercising our discretion, dismiss her pendent

state claim. United Mine Workers v. Gibbs, 383 U.S. 715,

726 (1966).

Finally, the Court need not decide what effect the prior

state court decision would have had upon the present action

under the doctrine of res judicata.

The order of the district court is affirmed.

A26

Dissenting Opinion, Oakes, C. J.

Oakes, Circuit Judge (dissenting) :

I respectfully dissent.

In my view the complaint alleges facts which are suf-

ficient to state a substantial claim under 42 U.S.C. $1985(3).

Since appellant has also raised a claim under the laws of

New York, we have pendent jurisdiction over the state law

claim so long as ‘‘the relationship between [the federal]

claim and the state claim permits the conclusion that the

entire action before the court comprises but one constitu-

tional ‘ease.’ ’’ United Mine Workers of America v. Gibbs,

383 U.S. 715, 725 (1966). See also Van Gemert v. Boeing

Co., 520 F.2d 1373, 1382 (2d Cir. 1975), cert. denied, 44

U.S.L.W. 3272 (U.S. Nov. 11, 1975).' Appellant’s com-

plaint cites New York Executive Law §296(5)(a)(1) (Me-

Kinney 1974) as the source of her state law claim.* How-

ever, this section of the New York Human Rights Law is

not enforceable in federal court, but is part of an adminis-

1. See also Rosado v. Wyman, 397 U.S. 397, 404 (1970) ; Beil v.

Hood, 327 U.S. 678 (1946) ; Levering & Garrigues Co. v. Morrin,

289 U.S. 103, 105 (1933).

2. At the time appellant filed this action, New York Executive

Law §296(5)(a)(1) provided:

(a) It shall be an unlawful discriminatory practice for the

owner, lessee, sub-lessee, assignee, or managing agent of, or other

person having the right to sell, rent or lease a housing accommo-

dation, constructed or to be constructed, or any agent or em-

ployee thereof :

(1) To refuse to sell, rent, lease or otherwise to deny to or

withhold from any person or group of persons such a housing

accommodation because of the race, creed, color, national

origin or sex, or disability of such person or persons.

Paragraph (1) has since been amended to include the words “or

marital status” after the word “disability.”

A27

Appendix II1—Dissenting Opinion, Oakes, C.J.

trative scheme which is administered by the state Division

of Human Rights. The Division investigates complaints,

has hearings and issues orders upon complaints filed by

persons who claim their rights have been violated. Id.

§297. These orders are subject to judicial review in the

state courts. Jd. $298. Obviously the federal courts cannot

take jurisdiction over the state remedy with its adminis-

trative procedures, exhaustion of which is essential.

But New York Civil Rights Law §19-a (McKinney 1975-

1976 Supp.) provides a basis for a pendent state claim

which is inherent in the appellant’s pleaded allegations.

That section provides that

No corporation formed for the purpose of the coopera-

tive ownership of real estate within the state shall

withhold its consent to the sale or proposed sale of

certificates of stock or other evidence of ownership

of an interest in such corporation because of the race,

creed, national origin, or sex of the purchaser.

Id. It is obvious that the claim arising under this state

statute* has the same ‘‘common nucleus of operative fact”’

as appellant’s federal claim. Therefore, ‘‘considerations

of judicial economy, convenience and fairness to the liti-

gants,’’ United Mine Workers of America v. Gibbs, supra,

383 U.S. at 726, appear at this stage of the case to weigh

in favor of resolution of the state claim in the federal court

proceedings.

It is well to remember that federal jurisdiction is con-

ferred here by 28 U.S.C. §1343(1), (3), (4), and 28 U.S.C.

3. New York Civil Rights Law §19-b (McKinney 1975-1976

Supp.) provides that “[a]ny person aggrieved by a violation of sec-

tion nineteen-a . . . shall have a right of action in any court of ap-

propriate jurisdiction to restrain such violation and for other equitable

remedies, including such affirmative and other relief as may be neces-

sary to undo the effects of such violation.”

A28

Appendix I11—Dissenting Opinion, Oakes, C.J.

§1331(a).* Resort is had to 42 U.S.C. §1985(3) only to

determine whether a claim is stated thereunder, since it

creates the cause of action. See McNeese v. Board of Edu-

cation, 373 U.S. 668, 671 & n.1 (1963) (41983 aetion) ;

Byrd v. Sexton, 277 F.2d 418 (8th Cir.) (Blackmun, Cireuit

Judge), cert. denied, 364 U.S. 818, 819 (1960) ; Campbell v.

Glenwood Hills Hospital, Inc., 224 F. Supp. 27, 29 (D. Minn.

1963).

Where, as here, allegations in a complaint are sufficient

to state a §1985(3) conspiracy claim, the trial court may

resolve both the §1985(3) claim and the state claim, er,

which may be preferable, avoid resolving the §1985(3)

claim on the merits if the pendent state claim permits dis-

position of the case. Here, as in Siler v. Lowisville € Nash-

ville Railway Co., 213 U.S. 175, 191 (1909), once a federal

question is substantially alleged, the court has

the right to decide all the questions in the case, even

though it decided the Federal questions adversely to

the party raising them, or even if it omitted to decide

them at all, but decided the case on local or state ques-

tions only.

To put it another way, resolution of the state law claim

here alone is proper, and would permit avoidance of an

‘‘avoidable’’ decision under federal civil rights law. See

P. Bator, P. Mishkin, D. Shapiro and H. Wechsler, Hart

and Wechsler’s The Federal Courts and the Federal System

4. Probably §$§$1331(a) and 1343(1) are the most applicable,

§1331(a) because the jurisdictional amount test is clearly satisfied

and it is property rights of which appellant claims to be deprived, sce

Hague v. C/O, 307 U.S. 496, 518-32 (1939); Note, Jurisdictional

Amount in Cwil Rights Cases, 9 U. Chi. L. Rev. 302 (1942), and

§1343(1) because it is the jurisdictional counterpart to 42 U.S.C.

§1985(3). Moreover, unlike $1343(3), neither §1331(a) nor

§1343(1) contains a requirement of infringement of rights under

“color of state law.” See Lynch v. Household Finance Corp., 405

U.S. 538, 547 (1972).

A29

Appendix I11—Dissenting Opinion, Oakes, C.J.

(2d ed. 1973) at 922-23; C. Wright, Law of Federal Courts

(1970) $19, at 62-65. See generally Note, UMW v. Gibbs

and Pendent Jurisdiction, 81 Harv. L. Rev. 657 (1968).

The complaint names three individual defendants as

well as the corporate defendant and alleges that they have

conspired with each other to deprive appellant of her civil

and property rights. The court below found that appel-

lant’s complaint did not state a claim under §1985(3) be-

cause the court interpreted the complaint as failing to

assert that the individual defendants were acting outside

their official capacity as directors of the defendant corpo-

ration. Thus, the court reasoned, the actions of the indi-

vidual defendants ‘‘cannot be considered the product of a

conspiracy when the board was merely carrying out the

corporation’s managerial policy.’’ 396 F. Supp. 450, 456.

It is, to be sure, basic conspiracy law that a corporation

cannot conspire with its agents or employees acting within

the scope of their employment, Pearson v. Youngstown

Sheet & Tube Co., 332 F.2d 439 (7th Cir.), cert. denied,

379 U.S. 914 (1964). And it has been said that if the con-

sé

spiratorial conduct challenged is essentially a ‘‘single act

of discrimination by a single business entity,’’ the fact that

two or more agents participated in the decision or act will

‘‘normally not constitute’’ a §1985(3) conspiracy. Dom-

browski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972). But

here the individual defendants were not alleged to be simply

agents or employees of the corporate defendant, nor to be

acting in the scope of their employment, nor to be acting

for the corporate benefit. A closer reading of the complaint

indicates that appellant explicitly alleges that the injurious

acts of the individual defendant conspirators were indeed

committed in their individual, not their corporate, capaci-

ties.

A30

Appendix I1—Dissenting Opinion, Oakes, C.J.

Here the complaint alleges that the individual defend-

ants ‘‘constitute the officers and the entire Board of Di-

rectors of the corporate defendant, and wholly dominate,

operate and control all of its business and financial affairs.”’

(Emphasis added.) These allegations alone serve to dis-

tinguish this case from Dombrowski, supra. As recognized

by Judge McMillen in Cohen v. Illinois Institute of Tech-

nology, 384 F. Supp. 202, 205 (N.D. Ill. 1974), the case is

entirely different when the individual officers or directors

are ‘‘alleged to have controlled [the corporate defendant}

or to have personally committed acts of discrimina-

tion... .’’® In such a ease, as here, the individuals are not

acting at the direction of their corporate employer or nec-

essarily for its benefit.

Further, the complaint alleges that the defendants, ‘‘in

furtherance of the said design and conspiracy,”’

[a]dvised, caused, permitted and allowed the President

and the Board of Directors of the corporate defendant

to deny plaintiff permission and authority to continue

occupancy of the subject premises.

Surely the implication of such an allegation is not that

the defendants in their capacity as corporate agents ad-

vised themselves to act in their capacity as corporate

agents. Rather, it is that defendants in their individual

capacities determined according to personal motives that

they would cause managerial action by the president and

the board ef directors to serve their individual interests.

The crux of this allegation is that defendants acted, albeit

5. While in Baker v. Stuart Broadcasting Co., 505 F.2d 181,

183 (8th Cir. 1974), two of the three named individual defendants

owned 100 per cent of the stock of the corporation, the nature of this

ownership or its relevance to the alleged conspiracy was not discussed.

The decision cannot therefore be deemed illuminating on this point.

A3l1

Appendix I1—Dissenting Opinion, Oakes, C.J.

behind the screen of their corporate roles, in an individual

and not an official capacity.

Here, indeed, the complaint also alleges that ‘‘the pur-

pose, intent and result’’ of the conspiracy ‘‘was to enable,

permit and allow the said defendants to receive for their

own use and benefit and not for the benefit of plaintiff the

sole and exclusive right to determine who shall own said

shares of stock and the proprietary lease in the subject

premises. .. .’’ (Emphasis added.) As shareholders in

the cooperative corporation and as leaseholders in the

building it would be to their individual financial benefit to

have the Girard apartment revert to the corporation and

it might very well be to their personal benefit to acquire

the apartment for themselves. These allegations as to per-

sonal motives alone further serve to distinguish this case

from the corporate-agent cases referred to above. See

Nelson Radio & Supply Co. v. Motorola, 200 F.2d 911, 914

(Sth Cir. 1952), cert. denied, 345 U.S. 925 (1953).

Moreover, acts engaged in as a part of the conspiracy

by defendants allegedly include deliberate and malicious

‘*telephone calls to plaintiff at unreasonable hours solely

for the purpose of harassing and annoying her in order

to force plaintiff to vacate said premises... .’’ Such con-

duct, if established, would surely be individual and non-

corporate in nature; nor are these allegations to be lightly

disregarded or passed off as being de minimis. Cf. Rackin

v. University of Pennsylvania, 386 F. Supp. 992 (E.D. Pa.

1974).

All of these factors in my view make the question

whether the alleged §1985(3) conspiracy existed one that

certainly is substantial, so as to supply, even if it does

not succeed on its own merits, clear pendent jurisdiction

of the state law claim.

A32

Appendix I11—Dissenting Opinion, Oakes, C.J.

There is, to be sure. another question, left open in

Griffin v. Breckinridge, 403 U.S. 88, 102 n.9 (1971), ‘‘wheth-

er a conspiracy motivated by invidiously discriminatory in-

tent other than racial bias would be actionable’’ under

§1985(3). A series of recent Supreme Court cases, per-

haps the foremost of which is Taylor v. Lowisiana, 419

U.S. 522 (1975), point the way toward an affirmative an-

swer in cases involving bias on account of sex. One would

estimate that deprival of valuable property rights on ac-

count of a person’s gender would constitute a denial ‘‘of the

equal protection of the laws’’ within §1985(3), as well as

within the Fourteenth Amendment. See Stanton v. Stan-

ton, 421 U.S. 7 (1975); Weinberger v. Wiesenfeld, 420 U.S.

636 (1975); Frontiero v. Richardson, 411 U.S. 677 (1973).

There is, in short, a claim under this federal civil rights

statute to warrant federal jurisdiction under 28 U.S.C.

§1331(a) or §1343(1), and under the principles of pendent

jurisdiction above enumerated clearly to support considera-

tion of the state law claim under the New York Civil Rights

Law. I would reverse and remand for that consideration."

6. Appellees have argued that this suit is barred by the res

judicata effect of a prior state court action brought by appellant

against these same appellees. In the state court litigation, however,

appellant merely contended that the appellees’ refusal to assign to her

the shares of the corporation owned by her former husband was in

breach of the lease agreement and state corporations law. No viola-

tion of civil rights was alleged in the state court action; and the state

judge, in ruling against appellant’s claim, stated only that appellees

have the right to refuse to consent to the transfer of a cooperative

lease for any reason “except, of course, those prohibited by the Civil

Rights Law.” Girard v. 94th Street and Fifth Avenue Corp., Civ.

No. 15173/73 (Supreme Court, New York County, July 8, 1974)

(memorandum opinion). Only the other day, in Herendeen v. Cham-

pion International Corp., No. 75-7083 (2d Cir. Nov. 10, 1975), slip

op. 483, we held under New York law that where a plaintiff in a

second suit sets forth “an independent claim of defendant wrong-

doing” the first suit does not bar the second even though the plain-

tiff “could have joined” the second suit claim with the first. /d. at

4£9-91. While Mrs. Girard could have joined her civil rights claim

in her state court suit she did not do so. She is not barred, therefore,

from asserting it now.

A33

APPENDIX IIl

Stay of Mandate of Second Circuit

UNITED STATES COURT OF APPEALS

Seconp Circuit

75-7443

Ata Stated Term of the United States Court of

Appeals, in and for the Second Cireuit, held at the

United States Court House, in the City of New York, on

the twentieth day of February, one thousand nine hun-

dred and seventy-six.

Ene

Barpara Grrarp,

Plaintiff-A ppellant,

94TH STREET AND FirtH Avenue Corporation, LAWRENCE

Witxzrnson, Joun H. Stookey and Tuomas E. Murray,

Defendants-A ppellees.

It is hereby ordered that the motion made herein by

counsel for the appellant dated January 28, 1976 to stay

issuance of the mandate pending application to the Supreme

Court of the United States for a writ of certiorari pursuant

to Rule 41(b) of the Federal Rules of Appellate Procedure

be and it hereby is granted, provided said application is

filed within 30 days from the date of filing of this order, in

default of which mandate shall issue.

/s/ Sterry R. WatrermMan

Sterry R. WaTERMAN

/s/ James L. OaKeEs

JaMEs L. Oakes

/s/ Tomas J. MEsKILL

Tuomas J. MesKILL

Circuit Judges

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.