Sullivan v. Little Hunting Park, Inc

• Decision Date: 15 December 1969
• Docket Number: No. 33,33
• Parties: Paul E. SULLIVAN et al., Petitioners, v. LITTLE HUNTING PARK, INC., et al
• Court: U.S. Supreme Court

396 U.S. 229

90 S.Ct. 400

24 L.Ed.2d 386

Paul E. SULLIVAN et al., Petitioners,

v LITTLE HUNTING PARK, INC., et al.

No. 33.

Argued Oct. 13, 1969.

Decided Dec. 15, 1969.

[Syllabus from pages 229-230 intentionally omitted]

Allison W. Brown, Jr., Washington, D.C., for petitioners.

John Charles Harris, Alexandria, Va., for respondents.

Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Justice BLACK.

This case, which involves an alleged discrimination against a Negro family in the use of certain community facilities, has been here before. The Virginia trial court dismissed petitioners' complaints and the Supreme Court of Appeals of Virginia denied the appeals saying that they were not perfected 'in the manner provided by law in that opposing counsel was not given reasonable written notice of the time and place of tendering the transcript and a reasonable opportunity to examine the original or a true copy of it' under that court's Rule 5:1, § 3(f).¹

The case came here and we granted the petition for certiorari and vacated the judgments and remanded the case to the Supreme Court of Appeals for further consideration in light of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189. 392 U.S 657, 88 S.Ct. 2279, 20 L.Ed.2d 1346. On the remand, the Supreme Court of Appeals restated its prior position stating, 'We had no jurisdiction in the cases when they were here before, and we have no jurisdiction now. We adhere to our orders refusing the appeals in these cases.' 209 Va. 279, 163 S.E.2d 588. We brought the case here the second time on a petition for certiorari. 394 U.S. 942, 89 S.Ct. 1272, 22 L.Ed.2d 476.

I

When the case was first here respondents opposed the petition, claiming that Rule 5:1, § 3(f), was not complied with. Petitioners filed a reply brief addressing themselves to that question. Thus the point now tendered was fully exposed when the case was here before, though we ruled on it sub silentio.

In this case counsel for petitioners on June 9, 1967, gave oral notice to counsel for respondents that he was submitting the transcripts to the trial judge. He wrote counsel for respondents on the same day to the same effect, saying he was submitting the transcripts to the trial judge that day, filing motions to correct them, and asking the trial court to defer signing them for a tenday period to allow counsel for respondents time to consent to the motions or have them otherwise disposed of by the court. The judge, being absent from his chambers on June 9, ruled that he had not received the transcripts until June 12. The motions to correct came on for a hearing June 16, at which time the judge ruled that he would not act on the motions until counsel for respondents had agreed or disagreed with the changes requested. After examining the transcripts between June 16 and June 19, counsel for respondents told counsel for petitioners that he had no objections to the corrections or to entry of orders granting the motions to correct. Counsel for respondents then signed the proposed orders which counsel for petitioners had prepared. The proposed orders were submitted to the trial judge on June 20; and on the same day he signed the transcripts, after they had been corrected.

As we read its cases, the Supreme Court of Appeals stated the controlling principle in the following language:

'The requirement that opposing counsel have a reasonable opportunity to examine the transcript sets out the purpose of reasonable notice. If, after receipt of notice, opposing counsel be afforded reasonable opportunity to examine the transcript, and to make objections thereto, if any he has, before it is signed by the trial judge, the object of reasonable notice will have been attained.' Bacigalupo v. Fleming, 199 Va. 827, 835, 102 S.E.2d 321, 326.

In that case opposing counsel had seven days to examine the record and make any objections. In the present case he had three days. But so far as the record shows he did not at the time complain that he was not given that 'reasonable opportunity' he needed to examine and correct the transcripts.

Petitioners' counsel does not urge—nor do we suggest—that the Virginia Supreme Court of Appeals has fashioned a novel procedural requirement for the first time in this case; cf. NAACP v. Alabama, 357 U.S. 449, 457—458; 78 S.Ct. 1163, 1169—1170, 2 L.Ed.2d 1488; past decisions of the state court refute any such notion. See Bacigalupo v. Fleming, supra; Bolin v. Laderberg, 207 Va. 795, 153 S.E.2d 251; Cook v. Virginia Holsum Bakeries, Inc., 207 Va. 815, 153 S.E.2d 209.² But those same decisions do not enable us to say that the Virginia court has so consistently applied its notice requirement as to amount to a self-denial of the power to entertain the federal claim here presented if the Supreme Court of Appeals desires to do so. See Henry v. Mississippi, 379 U.S. 443, 455—457, 85 S.Ct. 564, 571—573, 13 L.Ed.2d 408 (Black, J., dissenting). Such a rule, more properly deemed discretionary than jurisdictional, does not bar review here by certiorari.

II

Little Hunting Park, Inc., is a Virginia nonstock corporation organized to operate a community park and playground facilities for the benefit of residents in an area of Fairfax County, Virginia. A membership share entitles all persons in the immediate family of the shareholder to use the corporation's recreation facilities. Under the bylaws a person owning a membership share is entitled when he rents his home to assign the share to his tenant, subject to approval of the board of directors. Paul E. Sullivan and his family owned a house in this area and lived in it. Later he bought another house in the area and leased the first one to T. R. Freeman, Jr., an employee of the U.S. Department of Agriculture; and assigned his membership share to Freeman. The board refused to approve the assignment because Freeman was a Negro. Sullivan protested that action and was notified that he would be expelled from the corporation by the board. A hearing was accorded him and he was expelled, the board tendering him cash for his two shares.

Sullivan and Freeman sued under 42 U.S.C. §§ 1981, 1982 for injunctions and monetary damages. Since Freeman no longer resides in the area served by Little Hunting Park, Inc., his claim is limited solely to damages.

The trial court denied relief to each petitioner. We reverse those judgments.

In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, we reviewed at length the legislative history of 42 U.S.C. § 1982.³ We concluded that it reaches beyond state action and operates upon the unofficial acts of private individuals and that it is authorized by the Enabling Clause of the Thirteenth Amendment. We said:

'Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom—freedom to 'go and come at pleasure' and to 'buy and sell when they please'—would be left with 'a mere paper guarantee' if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white may can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.' 392 U.S., at 443, 88 S.Ct., at 2205.

The Virginia trial court rested on its conclusion that Little Hunting Park was a private social club. But we find nothing of the kind on this record. There was no plan or purpose of exclusiveness. It is open to every white person within the geographic area, there being no selective element other than race. See Daniel v. Paul, 395 U.S. 298, 301—302, 89 S.Ct. 1697, 1699 1700, 23 L.Ed.2d 318. What we have here is a device functionally comparable to a racially restrictive covenant, the judicial enforcement of which was struck down in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, by reason of the Fourteenth Amendment.

In Jones v. Alfred H. Mayer Co., the complaint charged a refusal to sell petitioner a home because he was black. In the instant case the interest conveyed was a leasehold of realty coupled with a membership share in a nonprofit company organized to offer recreational facilities to owners and lessees of real property in that residential area. It is not material whether the membership share be considered realty or personal property, as § 1982 covers both. Section 1982 covers the right 'to inherit, purchase, lease, sell, hold, and convey real and personal property.' There is a suggestion that transfer on the books of the corporation of Freeman's share is not covered by any of those verbs. The suggestion is without merit. There has never been any doubt but that Freeman paid part of his $129 monthly rental for the assignment of the membership share in Little Hunting Park. The transaction clearly fell within the 'lease.' The right to 'lease' is protected by § 1982 against the actions of third parties, as well as against the actions of the immediate lessor. Respondents' actions in refusing to approve the assignment of the membership share in this case was clearly an interference with Freeman's right to 'lease.' A narrow construction of the language of § 1982 would be quite inconsistent with the broad and sweeping nature of the protection meant to be afforded by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from which § 1982 was derived. See 392 U.S., at 422—437, 88 S.Ct., at 2194—2202.

We turn to Sullivan's expulsion for the advocacy of Freeman's cause. If that sanction, backed by a state court judgment, can be imposed, then Sullivan is punished for trying to vindicate the rights of minorities protected by § 1982. Such a sanction would give impetus to the perpetuation of racial restrictions on property. That is why we said...