530 F.2d 16 (5th Cir. 1976), 74--1349, Golden v. Biscayne Bay Yacht Club

Docket Nº:74--1349.
Citation:530 F.2d 16
Party Name:Harold S. GOLDEN and David Fincher, Plaintiffs-Appellees, v. BISCAYNE BAY YACHT CLUB et al., Defendants-Appellants.
Case Date:April 15, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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530 F.2d 16 (5th Cir. 1976)

Harold S. GOLDEN and David Fincher, Plaintiffs-Appellees,

v.

BISCAYNE BAY YACHT CLUB et al., Defendants-Appellants.

No. 74--1349.

United States Court of Appeals, Fifth Circuit

April 15, 1976

Henry Burnett, Miami, Fla., for defendants-appellants.

Maurice Rosen, North Miami Beach, Fla., Warren S. Schwartz, Miami, Fla., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Florida.

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Before BROWN, Chief Judge, WISDOM, GEWIN, BELL, [*] THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE and TJOFLAT,

COLEMAN, Circuit Judge.

A city leased to a private yacht club the bay bottom land underlying club-constructed and club-maintained dock facilities connected to the club lands on shore. The club thus had exclusive use and control of the docks, a situation which had existed long before the lease was executed. The District Court held that the existence of the lease, and that alone, amounted to significant state involvement with the membership policies of the club, 42 U.S.C., § 1983, Golden v. Biscayne Bay Yacht Club, 370 F.Supp. 1038 (S.D.Fla., 1973). The lease and the use of the docks were left undisturbed. Instead, it was ordered and adjudged:

'1. That the policy, practice and custom of defendant Biscayne Bay Yacht Club in denying membership to the members of the Jewish religion and Black race is hereby declared violative of the Fourteenth Amendment to the United States Constitution.

'2. Defendant Biscayne Bay Yacht Club is hereby ordered to cease the barring of membership to applicants solely on account of their race and religious affiliations. 370 F.Supp. at 1044.

'3. Jurisdiction is retained for the enforcement of the decree.'

The judgment of the District Court was affirmed by a panel of this Court, one Judge dissenting, Golden v. Biscayne Bay Yacht Club, 5 Cir., 1975, 521 F.2d 344. 1

So far as can be determined from a diligent search of the precedents, this is the first time in the history of Fourteenth Amendment jurisprudence that a federal district court has undertaken the supervision of membership policies in a genuinely private club. A majority of the Judges of this Court in active service, one Judge not participating, granted rehearing en banc.

Upon a thorough sifting of the facts and circumstances of this case, we are of the opinion that the bay bottom lease did not supply the requisite Fourteenth Amendment significant state involvement in the membership policies of the private club. Accordingly, we reverse the judgment of the District Court and remand the case with directions to dismiss the complaint.

Prologue

There are undisputed considerations which, at the outset, ought to be taken into account.

The lessor was the City of Miami, organized in 1896. The lessee was the Biscayne Bay Yacht Club, organized in 1887.

The case does not come here as a class action.

The club was genuinely private. The District Court so found, and additionally held that 'it certainly was not formed as a subterfuge to evade the civil rights laws', 370 F.Supp., at 1041. It performed no public function; it did nothing that had ever been a public function. It neither receives nor spends funds allocated from any public source. The city

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had no part, and took not part, in the operations or internal policies of the club. As to membership policies, the District Court found that there was no evidence that the city had been aware of any discrimination practiced by the club which would require termination of the lease, 370 F.Supp., at 1044.

The Panel majority opinion held that 'the City provided substantial financial aid to the Club by making the bay bottom land available for the token rental of $1.00 per year', 521 F.2d 352. If the District Court considered this point it failed to mention it and made no finding that the city contributed in any way, substantial or otherwise, to the financial support of the club.

To be more specific, the District Court noted:

'Except for the existence of the lease, the City of Miami has never participated in or been involved in the operation of the Club.'

370 F.Supp., at 1040.

A fortiori, the issue on this appeal is whether the lease, the sole nexus between city and club, supplied the significant state involvement required to activate 42 U.S.C., § 1983. 2

The Law

This is not the kind of case in which we are left to flounder blindly in search of the applicable law. On several occasions in the recent past the Supreme Court, as more specifically discussed hereinafter, has carefully surveyed the field and articulated principles governing significant state involvement in private activities.

The purpose of the Amendment and of the statute, 42 U.S.C. § 1983, is to preserve and enforce, as against state action, those rights, privileges, and immunities 'secured by the Constitution and laws'. In the absence of impermissible state involvement, it would hardly be argued that membership in a private club, at the option of the applicant, is a right or privilege enforceable in the federal courts or anywhere else. Unless and until state action, or action taken under color of state law, significantly enters the lists on the side of impermissibly discriminatory results, the internal membership policies of a genuinely private club furnish no grist for the federal judicial mill. See, e.g., The Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5; Evans v. Abney, 1970, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 643; Moose Lodge No. 107 v. Irvis, 1972, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627.

We begin our analysis with a thoroughgoing recognition of the teachings of a pioneer case in the field now specifically under consideration, Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45.

Burton was a racial discrimination case. The object of the complaint was a restaurant, leased from a state agency, housed in a building owned and operated by that agency. The lease was needed to produce revenue to finance the construction of the building. To a certain extent the restaurant enjoyed a portion of the tax exempt status of its state owned landlord. The state agency furnished heat and repairs; it received rent in the amount of $28,700 per annum.

The state court held that the restaurant operated in 'a purely private capacity'.

The Supreme Court reversed, noting that the land and building were publicly owned, that the building was dedicated to public uses, the leased areas were not

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surplus state property, they constituted a physical and financial integral, and they were an indispensable part of the State's plan to operate the project as a self-sustaining unit. The operation conferred mutual benefits upon lessor and lessee. Of no small moment was the fact that 'profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency'.

The conclusion was that:

'The State has so far insinuated itself into a position for interdependence with (the restaurant) that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so 'purely private' as to fall without the scope of the Fourteenth Amendment.'

365 U.S., at 725, 81 S.Ct., at 862, 6 L.Ed.2d, at 52.

The standard first announced in Burton, 'that the State had so far insinuated itself into a position of interdependence with the restaurant that it was a joint participant in the enterprise', was reiterated in Jackson v. Metropolitan Edison Company, 1974, 419 U.S. 345, 357, 95 S.Ct. 449, 457, 42 L.Ed.2d 477, 487. Jackson was not a racial discrimination case but the Court noted:

'Petitioner advances a series of contentions which, in her view, lead to the conclusion that this case should fall on the Burton side of the line drawn in the Civil Rights Cases, supra, rather than on the Moose Lodge side of that line. We find none of them persuasive.'

419 U.S., at 351, 95 S.Ct., at 454, 42 L.Ed.2d, at 484.

Burton and Moose Lodge were racial discrimination cases. The Supreme Court accepted them as lines of demarcation in Jackson's case, although it did not involve racial discrimination. The standard, state insinuation into a position of interdependence so as to become a joint participant in the challenged private activity, has been used by the Supreme Court in both racial and non-racial cases. The basic principle remains the same in either type case: the facts either establish or do not establish significant state involvement in the private activity.

In a § 1983 case involving alleged racial discrimination by a private club, the charge we have before us here, the Supreme Court said:

'(W)here the impetus for the discrimination is private, the State must have 'significantly involved itself with invidious discriminations'.'

Moose Lodge, supra, 407 U.S., at 173, 92 S.Ct., at 1971, 32 L.Ed.2d, at 637.

The Court extensively discussed Burton, supra, with obvious approval, and found 'nothing approaching the symbiotic relationship between lessor and lessee that was present in Burton', at 175, 92 S.Ct., at 1972, 32 L.Ed.2d at 638.

The Court further informed us that the issue of significant state involvement in private activities may be resolved only 'by sifting facts and weighing circumstances', at p. 172, 92 S.Ct., at 1971, 32 L.Ed.2d, at 637. Burton, of course, told us in 1962 that the Amendment's embrace 'can be determined only in the framework of the peculiar facts or circumstances present', that is, on a case...

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