Opposition — Fulton v. Hecht

Supreme Cougt, U. S, .a*

~FILED BS

APR 5 i977

— RODAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-1282

GEORGE J. FULTON,

Petitioner,

vs.

ISADORE HECHT, et al.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

HERBERT L. NADEAU

150 Southeast 2nd Avenue

Miami, Florida 33131

Attorney for Respondents

E. L. Muxpewnait, Iwc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8080

INDEX

RESPONDENTS’ RE-STATEMENT OF THE CASE.... 1

REASONS FOR DENYING THE PETITION ................ 5

THE DECISION BELOW IS NOT IN CONFLICT

WITH THE DECISIONS RELIED UPON BY THE

SRE, satsinnstesetivetensesiinnstenciiguapsiinsineiiinessneruniestectenreneene 7

THE DECISION BELOW REPRESENTS NEITHER

IMPORTANT NOR UNIQUE CONSTITUTIONAL

EEA ER nt a . 12

I a spseeopiitivinnnotesin 12

CERTIFICATE OF MAILING 20000000....cccccc cc ceeeeecceeeeeeee 13

TABLE OF CASES

Burton v. Wilmington Parking Authority, (1961) 365

EES Se ee ae ECR 4,5, 7,8

Evans v. Newton, (1966) 382 U.S. 296 -..0.00000000 7,9

Fulton v. Hecht, (CCA 5 1977) 545 F.2d 540 20000... 1

Golden v. Biscayne Bay Yacht Club et al., (CCA 5

I cellar itcdnaeiceiennanaincdedidiaens 6

Golden State Bottling Co., Inc. v. N.L.R.B., (1973) 414

I a cneellitansncbdieitniniaaimme 6

Greco v. Orange Memorial Hospital Corporation, et al.,

(CCA 5 1975) 513 F.2d 873, Cert. Denied, (1975) 423

ER FE cee 4,6,9

Hollenbaugh v. Carnegie Free Library, (CCA 3 1976)

Sn I IIT inital incesssaeniacceasndtilldadiidindaindsuiniguimainmpinasiainies 7,11

Ihrke v. Northern States Power Company, (8th Cir.

SD IT IIIT IIIS ensconced dibiietentateeteasemsencaates 7,10

rr

Jackson v. Metropolitan Edison Co., (1974) 419 US.

345

5, 7,9

Kislak vy. Kreedian, (Fla. 1957) 95 So.2d 510 ................ 2

Livingston v. Twyman, (Fla. 1950) 43 So.2d 354 ........ 2

Moose Lodge No. 107 v. Irvis, (1972) 407 U.S. 163 ....4,5,9

Reitman v. Mulkey, (1967) 387 U.S. 369 | 5

Rudolph v. U. S., (1962) 370 U.S. 269 oon -eoccceecccseeoone 5

Shelley v. Kraemer, (1948) 334 U.S. 1 occccccccccccceescseeoseee 4

U. S. v. Durham Lumber Co., (1960) 363 U.S. 522 ........ 6

Wilson v. Sandstrom, (Fla.) 317 So.2d 732, 741, Cert.

Denied, (1975) 423 U.S. 1058 ...... 3

OTHER AUTHORITIES

14 C.J.S. (Civil Rights) Supp. 193, 195 §§115, 117... 4

BO BL. GUOUD ccerceeececsicsrcienaee 7

Supreme Court Rule 23.4

RULES

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-1282

GEORGE J. FULTON,

Petitioner,

vs.

ISADORE HECHT, et al.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

RESPONDENTS’ RE-STATEMENT OF THE CASE

Petitioner’s statement of the case is not a statement

of the case but is basically an argument. The collateral

matters so advanced violate the express admonitions of

Rule 23.4 of this Court.

The decision of the Fifth Circuit sought to be reviewed,

Fulton v. Hecht, (CCA 5 1977) 545 F.2d 540, clearly

sets forth the history of the case, the issues and the facts.

However, Petitioner’s argumentative statement of the

case dictates a restatement in order to answer the argu-

ments advanced ad seriatim.

2

First is the contention that:

“* * * Fulton alleged and proved that the State

of Florida is a partner or joint venturer in the opera-

tion of Flagler or, alternatively, that Flagler is a rev-

enue generating agency of the state operated for it

by the Respondents.”

The above statement is contrary to the findings of

both lower courts. The record clearly establishes that

the State of Florida exercises no control over the operation

or management of the track. Flagler as a privately owned

operation pays all of the expenses, establishes its own

policies, determines the services to be afforded its patrons

and the types and classes of races to be run.

The State of Florida participates in the pari-mutuel

pool to the degree provided for by statute, but it is not

required to share in any losses. Mutuality of control and

an agreement for the sharing of losses are essential to

the existence of a joint venture or partnership. Livingston

v. Twyman, (Fla. 1950) 43 So.2d 354, Kislak v. Kreedian,

(Fla. 1957) 95 So.2d 510.

The supervision and regulation by the State of Florida

has but one objective to oversee, check and audit the

pari-mutuel handle to insure that the state received its

prescribed share. The remaining regulations are designed

to maintain the public confidence in the integrity of dog

racing.

The next contention for the existence of a partnership

is based upon the testimony of the Chairman of the Board

of Business Regulations that he had upon occasion referred

to the pari-mutuel tracks in Florida as a partnership. Re-

liance is then placed upon the testimony of a state econo-

mist to the effect that legislators, members of the execu-

3

tive department and others used the term partnership in

discussing the relationship between the pari-mutuel tracks

and the State. This same witness also testified that he

did not share that view.

Petitioner then relies upon the opinion of the Supreme

Court of Florida in Wilson v. Sandstrom, (Fla.) 317 So.2d

732, 741, Cert. Denied, (1975) 423 U.S. 1053 as amounting

to an adjudication that the State and the pari-mutuel tracks

are partners or joint venturers. This simply is not the

case as an examination of that opinion will readily disclose.

The dog track and the State are no more partners or

joint venturers than a gambling house operator running

a poker game is a partner or joint adventurer with his

patrons when he cuts the pot.

Petitioner then complains that the State refused to

follow its so-called 15 day rule, which requires the giv-

ing of 15 days notice to it permittees or licensees of can-

cellation of their license. The rule obviously applies only

to the holders of licenses from the State to operate a

pari-mutuel establishment. It does not apply to kennel

owners or to private contracts.

Furthermore the Division Director of the Department

of Business Regulations testified that the rule was appli-

cable only when great harm would result to the public

welfare. He was also of the opinion that the unilateral

refusal by West Flagler to rebook Fulton did not violate

the rule because the State had no interest in whether

Fulton was running his dogs at Flagler or not.

The gravamen of Fulton’s complaint is Flagler’s elec-

tion not to renew his booking contract. The lower courts

found and it is conceded that the State exercises no super-

vision, authority or control over such contracts. The “State

Action” doctrine has no application, absent control and

4

authority over the subject matter of the complaint. See:

14 C.J.S., (Civil Rights) Supp. 193, 195, Sections 115, 117

and authorities cited. Greco v. Orange Memorial Hospital

Corporation, et al., (CCA 5 1975) 513 F.2d 873, Cert. Denied,

(1975) 423 U.S. 1000.

The opinion of the Fifth Circuit sought to be reviewed

clearly and succinctly states the facts and the issue. The

Court said (text 541):

“The thrust of Fulton’s §1983 claim is that West Flag-

ler’s failure to renew his contract to race his grey-

hounds at the Flagler Kennel Club track was done

under color of state law. He also claims this refusal

denied him equal protection of the laws. The Flagler

Kennel Club is admittedly a private operation. As

such, the proof must show significant state involve-

ment in order to bring an otherwise private concern

within the ambit of the Fourteenth Amendment.

Moose Lodge No. 107 v. Irvis, 1972, 407 U.S. 163, 92

S.Ct. 1965, 32 L.Ed.2d 627; Greco v. Orange Memorial

Hospital Corp., 5 Cir., 1975, 513 F.2d 873, cert. denied,

1975, 423 U.S. 1000, 96 S.Ct. 433, 46 L.Ed.2d 376, See

also Burton v. Wilmington Parking Authority, 1961,

365 U.S. 715, 81 S.Ct. 856, 6 LEd.2d 45; Shelley

v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed.

1161.”

The Court of Appeals in its opinion (text 543) ex-

pressly held that the State does not regulate the booking

contracts between the kennel club and the dog owners.

This is admitted by Petitioner.’

1. In their brief in the anti-trust aspect of this case still

pending in the court below Fulton v. Hecht, (CCA 5) Case No.

76-2391 petitioners say:

“Except for licensing dog owners, the Florida Board of Busi-

ness Regulation does not regulate the booking system.”

REASONS FOR DENYING THE PETITION

Without diminishing the importance of any appellate

decision involving constitutional or alleged constitutional

rights, the court below did no more than follow the instruc-

tions of this Court in Burton v. Wilmington Parking Au-

thority (1961) 365 U.S. 715, Moose Lodge No. 107 v. Irvis,

(1972) 407 U.S. 163, and Jackson v. Metropolitan Edison

Co., (1974) 419 U.S. 345, by sifting the undisputed facts

and weighing the circumstances from which it reached

the unanimous legal and factual conclusion that the re-

quired significant involvement with discrimination on the

part of the state was lacking. Reitman v. Mulkey, (1967)

387 U.S. 369.

Flagler’s decision not to renew Fulton’s booking con-

tract, can hardly be said to constitute a question of par-

ticular gravity or general importance, so as to justify the

issuance of the writ. Rudolph v. U. S., (1962) 370 USS.

269.

In quoting from Burton v. Wilmington Parking Au-

thority, (1961) 365 U.S. 715 at 723 the Fifth Circuit in

affirming the District Court in the instant case said:

“Only by sifting facts and weighing circumstances can

the nonobvious involvement of the State in private

conduct be attributed its true significance.” 365 U.S.

at 722, 81 S.Ct. at 860.

Following the above quotation the court continued:

“The Challenged Activity

The trial court found that the State of Florida was

not sufficiently connected with West Flagler’s refusal

to renew Fulton’s booking contract so as to imbue

that act with the attributes of the State.”

6

The Court of Appeals on the record reached the same

conclusion and unanimously affirmed. Under such circum-

stances this court will not review by certiorari the findings

and decisions of the lower courts. Golden State Bottling

Co., Inc. v. N.L.R.B., (1973) 414 U.S. 871, U. S. v. Durham

Lumber Co., (1960) 363 U.S. 522.

Denial of certiorari by this court in other cases on

the same issue under like circumstances dictates a like

denial in the instant case.

In Golden v. Biscayne Bay Yacht Club et al., (CCA

5 1976) 530 F.2d 16 one black and one member of the

Jewish religion brought a civil rights action against the

private yacht club which held a lease from the City for

use of bay bottom lands on which the club docks were

constructed. Their complaint was that they were excluded

from membership because of their color or religion. The

District Court ordered the club to stop barring applicants

for membership upon the grounds stated. The Court of

Appeals affirmed 521 F.2d 344. On rehearing en banc

the Court of Appeals reversed. Five circuit judges dis-

sented.

The plaintiffs filed a petition for certiorari to this

court. That petition was denied (November 1976) ___

US. _..., 50 L.Ed.2d 152.

The Golden case presented more compelling features

for the granting of the petition than are present in the

instant case. (1) five judges dissented, (2) the case had

racial and religious overtones, and (3) public lands under

lease were involved. None of these elements are present

in the instant case.

In Greco v. Orange Memorial Hospital Corporation,

et al., (CCA 5 1975) 513 F.2d 873 which is closely in point

the Court likewise found State action to be lacking. This

Court there denied certiorari. (1975) 423 U.S. 1000.

7

THE DECISION BELOW IS NOT IN CONFLICT WITH

THE DECISIONS RELIED UPON BY

THE PETITIONER

Petitioner grounds its petition upon the contention

that the decision of the Court of Appeals conflicts with

this Court’s decisions in Burton v. Wilmington Parking

Authority, (1961) 365 U.S. 715 and Evans v. Newton, (1966)

382 U.S. 296. It is also contended that the decision conflicts

with Ihrke v. Northern States Power Company, (CCA 8

1972) 459 F.2d 566 and Hollenbaugh v. Carnegie Free Li-

brary, (CCA 3 1976) 545 F.2d 382.

It is then asserted that the instant case presents an

important question as to the applicability of 42 U.S.C.

$1983 to white persons “who have been subjected to state

approved discrimination”.

There is no State approved discrimination anywhere

involved in Flagler’s refusal to renew Petitioner’s booking

contract. Both lower courts so found and Petitioner in

its anti-trust brief admits that the State does not under-

take to regulate the booking contracts.? It was simply

a private decision by a private corporation in a private

matter wholly unconnected with any concept of State

action.

In affirming the District Court’s finding that no State

action existed the Fifth Circuit in the instant case discussed

Jackson v. Metropolitan Edison Co., (1974) 419 U.S. 345

as well as the Burton case, saying:

“In Jackson v. Metropolitan Edison Co., supra, in

speaking of public utility regulation, the Supreme Court

said that ‘{t]he mere fact that a business is subject

to state regulation does not by itself convert its ac-

2. Footnote one, supra.

tion into that of the State for purposes of the Four-

teenth Amendment.’ Id. 419 U.S. at 350, 95 S.Ct. at

453. The Court further said that even extensive or

detailed regulation, by itself, would not be sufficient

to tip the scales. The Court, in Jackson, recognized

that public utilities would likely be subject to exten-

sive regulation, but it refused to acknowledge such

regulation as the single decisive factor for finding

the utility to be the state itself. We think the dog

racing industry can be analogized to the public util-

ity situation. Because of the very nature of the indus-

try, it must be regulated to protect the public. Even

though the regulation might be extensive, it cannot,

in any realistic sense, make the State a partner in

the endeavors of the Kennel Club.

The ‘symbiotic relationship’ that was characterized in

Burton v. Wilmington Parking Authority, supra, is not

present here. The Kennel Club is not a lessee of

public property. There is no evidence of a physical

relationship. The State is not obligated to maintain

and repair the Kennel Club’s premises.”

With respect to Burton, the Petitioner then juxtaposes

the language in Burton with what it considers to be

“* * * an appropriate description of the instant facts

* * *”. This transposition is easily accomplished with

any case when you start with a false premise. Peti-

tioner in advancing this comparison says “* * * but

no state may effectively abdicate its responsibilities by

ignoring them or merely failing to discharge them what-

ever the motive may be.” Petitioner assumes as its false

premise, without proof, that the State had some responsibil-

ity or duty imposed by law with respect to the booking

contracts. The record is wholly to the contrary as both

lower courts so found.

9

With respect to Jackson which was subsequent to Bur-

ton the Court said:

“Jackson v. Metropolitan Edison Co., supra, 419 U.S.

at 351, 95 S.Ct. at 453. Our inquiry must go a step

further and determine if there is a ‘sufficient close

[connection] between the State and the challenged

action . . . so that the action of the [business entity]

may be fairly treated as that of the State itself.’ Id.

See also Moose Lodge No. 107, supra, 407 US. at

176, 92 S.Ct. 1965.

The challenged activity here is the refusal to renew

Fulton’s booking contract to race greyhounds at Flagler

Kennel Club. We fail to find that ‘necessary’ suf-

ficiently close connection between this act and the

State so as to treat it as the act of the State. The

evidence is that the State of Florida—except for the

requirement that a dog racer must have a state license

to run his dogs—does not regulate booking contracts

between the Kennel Club and the dog owners. In

fact, the State has no control over the contract. Fulton

has not shown that the State either directly or in-

directly participated in the decision not to renew his

contract. See Greco v. Orange Memorial Hospital

Corp., supra.”

Evans v. Newton, (1966) 382 U.S. 296, is no wise

in point. It was there held that a public park devised

by Will to the City of Macon upon condition that it only

be used by whites and managed by white trustees could

not be so restricted. The court held that the prop-

erty had to be treated as a public institution and it was

improper to exclude blacks from the use of the park under

the Fourteenth Amendment.

10

Justice Black dissented upon the ground that no error

was committed under Georgia law in accepting the City’s

resignation as trustee and appointing a successor trustee.

He also was of the view that the writ was improvidently

granted in the first instance. Justices Harlan and Stewart

agreed with Black, J., saying:

“In my view the writ should be dismissed as improvi-

dently granted because the far-reaching constitutional

question tendered is not presented by this record with

sufficient clarity to require or justify its adjudication,

assuming that the question is presented at all.”

Ihrke v. Northern States Power Company, (8th Cir.

1972) 459 F.2d 566, has no bearing on the instant case

because there the Court of Appeals in reversing simply

held that the complaint stated a cause of action. That

case challenged the constitutionality of regulations promul-

gated by the utility relating to the termination of service.

It was claimed that the service had been terminated with-

out notice and without a hearing.

A decision on the merits after a trial, as in the case

at bar, is a far cry from a decision simply holding that

the complaint failed to state a cause of action.

Petitioner further admits that the opinion and decision

in the Ihrke case was vacated as moot (1972) 409 U.S.

815. This Court in vacating the opinion of the Eighth

Circuit said “* * * judgment vacated and the case re-

manded to the Court of Appeals with instructions to dis-

miss the case as moot.”

In face of the instruction to dismiss the case it is

difficult to see upon what basis Petitioner can now cite

the decision for a claimed conflict. Reliance upon the

Ihrke decision can only be classified as an academic exer-

11

cise and it is not the function of this Court on certiorari

to decide academic questions. .

Lastly Petitioner for a claimed conflict relies upon

Hollenbaugh v. Carnegie Free Library, (CCA 3 1976) 545

F.2d 382. By no stretch of the imagination can the instant

case be considered as being in conflict with Hollenbaugh.

The opinion shows that the library received approximately

90% of its financial support from local municipalities,

school districts and the Commonwealth of Pennsylvania.

It was governed by 24 trustees, 15 of whom would be

appointed by local government concurrent with their terms

of office in the appointing local government bodies. The

District Court there found as a matter of law that the

requisite State involvement was lacking and entered sum-

mary judgment without ever reaching the merits of the

complaint. The Third Circuit in reversing simply held

that the nexus test was one of degree and “* * * within

the confines of certain guidelines the presence or absence

of state action must be determined on a case by case basis”.

The decision of the Fifth Circuit Court of Appeals

in the instant case affirming the findings of fact and con-

clusions of law made by the District Court is well within

the judicial guidelines for a decision of such issues as

expressed in the decisions of this Court.

THE DECISION BELOW REPRESENTS NEITHER

IMPORTANT NOR UNIQUE CONSTITUTIONAL

ISSUES

The decision below is important only to the litigants

involved. The petition is but an attempt to extend federal

jurisdiction over private contracts between private parties

unconnected with any State regulation of such contracts.

Such efforts do not create or give birth to an “important”

constitutional issue.

The Director of Business Regulations testified that

the State of Florida had no interest one way or the other

in whether or not Fulton had a booking contract or raced

his dogs at Flagler. The refusal of Flagler to renew Ful-

ton’s booking contract cannot be characterized as present-

ing special or important issues of constitutional law so

as to warrant the granting of a petition for certiorari

on the basis of a claimed conflict. |

CONCLUSION

For the reasons set forth above the Petition for Writ

of Certiorari should be denied.

Respectfully submitted,

HERBERT L. NADEAU, Esq.

Third Floor

150 Southeast Second Avenue

Miami, Florida 33131

Telephone: (305) 373-5761

Attorney for Respondents

13

CERTIFICATE OF MAILING

I HEREBY CERTIFY that two (2) copies of the fore-

going printed Respondents’ Brief in Opposition to Petition

for Writ of Certiorari to United States Court of Appeals,

Fifth Circuit were mailed to Sinclair, Louis & Segal, 1600

duPont Building, Miami, Florida 33131, and J. Vogelson,

Esq., 2200 Fidelity Union Tower, Dallas, Texas 75201, At-

torneys for Petitioner this —..... day of April, 1977.

HERBERT L. NADEAU