459 F.2d 190 (7th Cir. 1972), 71-1147, Dombrowski v. Dowling

Docket Nº:71-1147.
Citation:459 F.2d 190
Party Name:Joseph L. DOMBROWSKI, Plaintiff-Appellee, v. Jack DOWLING and Arthur Rubloff & Co., Defendants-Appellants.
Case Date:April 07, 1972
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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459 F.2d 190 (7th Cir. 1972)

Joseph L. DOMBROWSKI, Plaintiff-Appellee,


Jack DOWLING and Arthur Rubloff & Co., Defendants-Appellants.

No. 71-1147.

United States Court of Appeals, Seventh Circuit.

April 7, 1972

Argued Jan. 12, 1972.

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Robert S. Cushman, Richard S. Ratcliff, Jeffrey G. Liss, Chicago, Ill., Price, Cushman, Keck & Mahin, Chicago, Ill., of counsel, for defendants-appellants.

Jeffrey Schulman, George B. Collins, Chicago, Ill., Collins & Amos, Chicago, Ill., of counsel, for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, and STEVENS and SPRECHER, Circuit Judges.

STEVENS, Circuit Judge.

The outcome of this litigation depends on three critical issues: (1) whether obnoxious discrimination by a private business is proscribed by § 2 of the Ku Klux Klan Act of 1871 1; (2) whether the Brunswick Building is a "public accommodation" within the meaning of § 201(b) (4) of the Civil Rights Act of 1964 2; and (3) whether defendants refused to rent space in that building to plaintiff because of the race of a large portion of his clientele. To place the issues in proper focus, the proceedings in the district court must be described.

Plaintiff is a white lawyer with a successful criminal practice. Defendant Arthur Rubloff & Co. is a corporation engaged in the management of real properties; as an employee of Rubloff, defendant Dowling is responsible for the management of the Brunswick Building.

On July 17, 1970, plaintiff filed a complaint in the district court alleging that he had been invited to rent offices in the Brunswick Building, that the proposed space and terms were acceptable to him, but that upon "being advised . . . that a substantial number of his clients were of the Black race or of Latin origin," defendants interrupted the rental discussions and ultimately refused to rent to him. He alleged that the acts of the defendants were part of an unlawful conspiracy to deny him rights secured by the Constitution and violated his statutory right to equal enjoyment of the facilities of a place of public accommodation. He invoked federal jurisdiction under several sections of the civil rights statutes, including 42 U.S.C. §§ 1985(3) and 2000a.

On July 20, 1970, the district court held an evidentiary hearing on plaintiff's motion for a temporary restraining order. After receiving the testimony of the plaintiff and three executives of Rubloff, he restrained defendants from renting the suite in question to anyone other than the plaintiff until further order of the court.

Subsequently, plaintiff moved for a preliminary injunction and defendant filed a motion for summary judgment. The testimony heard on July 20 comprised almost the entire record in connection with those motions. 3 After considering exhaustive briefs and argument, the court prepared a careful memorandum opinion and entered the order which gave rise to this appeal.

The court first identified the basic conflict in the testimony:

"Plaintiff maintains he was refused space in such building on the grounds his clientele was Negro or Latin-American. The defendants allege that he was refused on the grounds that he practiced criminal law and his clientele would create an additional security risk within the building."

Although it is plain from colloquy and from other portions of his memorandum that the court did not consider the plaintiff's

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testimony incredible, he made no findings of fact accepting or rejecting either version of the incident. Under his view of the law, such findings were unnecessary; it is fair to state that he assumed arguendo that defendants' explanation was accurate.

The court then stated the basic issue as whether the plaintiff had standing under the Civil Rights Acts to complain of discrimination based on the nature of his law practice. To determine that issue, the court considered the applicability of the pleaded statutory provisions to a metropolitan office building. He first pointed out that since defendants did not purport to act under color of state law, the charge under 42 U.S.C. § 1983 was insufficient, and that the definition of a "dwelling" in § 3602(b) did not encompass an office building, and, therefore, § 3604 did not apply. He also concluded that 42 U.S.C. § 1981, which affords Negroes the same rights as whites, could not apply because plaintiff is white. He then considered the two sections which the parties have debated before us: §§ 2000a and 1985(3).

He noted that there was a restaurant in the basement of the Brunswick Building, but held the public accommodation section of the 1964 Act inapplicable because there was "no allegation that plaintiff or his clients [had] been prevented from entering the building to use that restaurant." He concluded, however, that § 1985(3) did apply.

Presaging the Supreme Court's subsequent decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, he correctly concluded that private conspiracies, as well as conspiracies under color of state law, are covered by § 1985(3). He then held (1) that the facts, viewed in the light most favorable to the defendants, established an arbitrary discrimination against lawyers engaged in the practice of criminal law; and (2) that since there was no allegation that defendant Dowling acted outside the scope of his authority or without the consent of Rubloff, they should be treated as conspirators. 4 He denied defendants' motions for summary judgment and sua sponte entered summary judgment in favor of the plaintiff. He granted an injunction but refused to award damages.

Defendants appeal, contending that it was error to grant summary judgment in favor of the plaintiff when the facts were disputed, and that even if plaintiff's interpretation of the facts is correct, no violation of § 1985(3) was proved. Plaintiff argues that the ruling was correct and, in any event, that the evidence established a violation of § 2000a.


We first reject defendants' argument that the conflict in the testimony necessarily requires a reversal of the summary judgment. The judgment does not rest on a finding of racial discrimination and, under the district court's view of the law, such a finding is unnecessary. Accepting defendants' explanation of their refusal to rent to plaintiff, the court concluded that their discrimination

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against lawyers engaged in the practice of criminal law was wholly arbitrary and contrary to public policy 5; he therefore held that plaintiff had been denied the "equal protection of the laws" and "privileges and immunities under the laws" within the meaning of § 1985(3).

For the purpose of our analysis of the statute, we assume that the classification of criminal lawyers, as undesirable tenants is irrational and could not be justified by any compelling, or indeed any legitimate, interest of the defendants. On this assumption, we consider whether the discrimination is proscribed by § 2 of the 1871 Act, now 42 U.S.C. § 1985(3). 6

Plaintiff does not contend that the defendants acted under color of state law, or that there was any state involvement in the discrimination. Since it is clear that this section covers purely private conspiracies, Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, it is often assumed that state action is never an element of a § 1985(3) violation. The validity of this assumption is open to some question.

The conduct proscribed by the section is that of "two or more persons." In this case three persons were involved in the discriminatory act: defendant Dowling, who communicated with plaintiff; the witness Brennan, who testified that he made the decision not to rent to plaintiff; and Rubloff, their corporate employer. Since only one firm was involved, and both Brennan and Dowling acted within the scope of their authority as agents for that firm, it is open to question whether the conspiracy requirement of § 1985(3) has been met.

These questions are illuminated by identifying a distinction between the interests of the plaintiff that the statute was enacted to protect and the conduct of the defendants which it proscribes, and by considering the relationship between §§ 1983 and 1985(3), the respective

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lineal descendants of §§ 1 and 2 of the Ku Klux Klan Act of 1871.

Although the point is sometimes obscured or overlooked, § 1983 contains two quite distinct "state involvement" requirements. The first is clearly stated in the statute: the defendants must have acted "under color of" state law. 7 The second inheres in the nature of plaintiff's protected rights: he may not be deprived "of any rights, privileges, or immunities secured by the Constitution and laws." 8 His Fourteenth Amendment right to protection against discrimination extends only to cases in which state action is involved. 9

Section 1985(3) does not expressly identify any "state involvement" requirement. The most obvious difference in language between §§ 1983 and 1985(3) is the omission from the latter of the "under color of state law" language included in the former. Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, has squarely held that this omission is significant and that the latter statute applies to purely private conspiracies, whereas the former applies only to conduct under color of state law. The omitted language, however, is directed to the proscribed conduct of the defendants rather than the nature of the plaintiffs' rights which are protected by the statute. Thus, although Griffin makes it perfectly clear that some purely private conspiracies among defendants are proscribed by § 1985(3), Griffin did not purport to delineate the scope of the rights secured by the statute.

With respect to plaintiff's protected interests, the language of §§ 1983 and 1985(3) also differs, but the coverage of the two provisions is probably coextensive.

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10 Thus, the state involvement...

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