U.S. Supreme Court SULLIVAN v. LITTLE HUNTING PARK, 396 U.S. 229 (1969) 396 U.S. 229

[Page 396 U.S. 229, 231]

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).[Footnote 1]

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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; 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, 207 Va. 815, 153 S. E. 2d 209.[Footnote 2] But those same decisions do not enable us

[Page 396 U.S. 229, 235]

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. Mayer Co., , we reviewed at length the legislative history of 42 U.S.C. 1982.[Footnote 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:

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right based on any other Federal . . . law not inconsistent" with that Act.[Footnote 4]

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violations of the Fourth and Fifth Amendments. The federal statute did not in terms at least provide any remedy. We said:

"[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. And it is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Id., at 684.

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to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . ."

This means, as we read 1988, that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. Cf. Brazier v. Cherry, 293 F.2d 401. The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired. We do not explore the problem further, as the issue of damages was not litigated below.

It is suggested, not by any party, but by the dissent, that any relief should await proceedings under the fair housing provisions of Title VIII of the Civil Rights Act of 1968. 82 Stat. 81, 42 U.S.C. 3601 et seq. (1964 ed., Supp. IV). But petitioners' suits were commenced on March 16, 1966, two years before that Act was passed. It would be irresponsible judicial administration to dismiss a suit because of an intervening Act[Footnote 5] which has no possible application to events long preceding its enactment.

Reversed.

FootnotesFootnote 1 Rule 5:1 which is entitled "The Record on Appeal" states the following in 3 (f): "Such a transcript or statement not signed by counsel for all parties becomes part of the record when delivered to the clerk, if it is tendered to the judge within 60 days and signed at the end by him within 70 days after final judgment. It shall be forthwith delivered to the clerk who shall certify on it the date he receives it. Counsel tendering the transcript or statement shall give opposing counsel reasonable written notice of the time and place of tendering it and a reasonable opportunity to examine the original or a true copy of it. The signature of the judge, without more, will be deemed to be his certification that counsel had the required notice and opportunity, and that the transcript or statement is authentic. He shall note on it the date it was tendered to him and the date it was signed by him."

Footnote 2 In Bolin v. Laderberg, 207 Va. 795, 153 S. E. 2d 251, appellants' counsel had delivered the transcript to appellees' counsel on November 24, 1965. The transcript was tendered to the trial judge on November 26, and was signed by him on December 3. Appellees moved to dismiss the appeal on the ground that they had not been given "reasonable notice and opportunity" under Rule 5:1. The court stated that the motion should be overruled on the ground that Rule 5:1 provides that "[t]he signature of the judge, without more, will be deemed to be his certification that counsel had the required notice and opportunity, and that the transcript . . . is authentic." The court noted that the judge's "signature appears on the transcript without more and is, therefore, his certification that counsel for [appellees] had the required notice of tendering the transcript and the required opportunity to examine it." Id., at 797, 153 S. E. 2d, at 253. In Cook v. Virginia Holsum Bakeries, 207 Va. 815, 153 S. E. 2d 209, notice that the transcript would be tendered to the trial judge on

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October 20, 1965, was given to counsel for the appellee on October 15. Appellant's counsel, however, did not obtain a copy of the transcript until October 19. At a conference held on that same date, counsel for both parties went over the transcript and agreed on certain corrections and additions. At the hearing on October 20, appellee's counsel claimed he had not been given the reasonable notice and opportunity required by Rule 5:1. He then suggested numerous changes, and the trial judge ordered the transcript altered to reflect those changes. The revised transcript was tendered to the trial judge the next day, October 21, and signed by him that same day. On appeal, appellee moved to dismiss on the ground that the Rule 5:1 requirements had not been satisfied. The Virginia Supreme Court of Appeals overruled the motion, stating: "The narrative was amended to meet the suggested changes of counsel for [appellee], and he conceded in oral argument before us that the statement signed by the trial judge was correct." Id., at 817, 153 S. E. 2d, at 210.

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MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE WHITE join, dissenting.

In Jones v. Mayer Co., (1968), the Court decided that a little-used section of a 100-year-old statute prohibited private racial discrimination in the sale of real property. This construction of a very old statute, in no way required by its language,1 and open to serious question in light of the statute's legislative history,2 seemed to me unnecessary and unwise because of the recently passed, but then not yet fully effective, Fair Housing Title of the Civil Rights Act of 1968 (hereafter Fair Housing Law).3 Today, the Court goes yet beyond Jones (1) by implying a private right to damages for violations of 42 U.S.C. 1982; (2) by interpreting 1982 to prohibit a community recreation association from withholding, on the basis of race, approval of an assignment of a membership that was transferred incident to a lease of real property; and (3) by deciding that a white person who is expelled from a recreation association "for the advocacy of [a Negro's] cause" has "standing" to maintain an action for relief under 1982.

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I agree with the majority's conclusion that there is no adequate state ground shown, but I find myself unable to subscribe to the majority's reasoning, which appears to me unclear and confusing.

I am not certain what the majority means in its apparent distinction between rules that it deems "discretionary" and those that it deems "jurisdictional." Perhaps the majority wishes to suggest that the dismissals of petitioners' writs of error by the Supreme Court of Appeals were simply ad hoc discretionary refusals to accept plenary review of the lower court's decisions, analogous to this Court's denial of certiorari. If this were all the Virginia Supreme Court of Appeals had done, review of a federal question properly raised below would of course not be barred here. The mere discretionary refusal of the highest state court to grant review of a lower court decision does not provide an adequate state ground. In such circumstances, the decision of the lower court, rather than the order of the highest court refusing review, becomes the judgment of the "highest court of a State in which a decision could be had" for purposes of 28 U.S.C. 1257, our jurisdictional statute.[Footnote 6]

But this case clearly does not present this kind of discretionary refusal of a state appellate court to accept review. Although the Virginia Supreme Court of Appeals may well have the "discretion" to refuse review[Footnote 7] in a particular case without giving reasons or reconciling its refusal with earlier decisions, the dismissal below was not simply an ad hoc exercise of the power not to review every case presented. Instead the state court dismissed the petitions for review for a stated reason, namely, a

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lack of "jurisdiction to entertain the appeals because of the failure of counsel for the Sullivans and the Freemans to meet the requirements of Rule 5:1, 3 (f)." When a state appellate court's refusal to consider the merits of a case is based on the failure to conform to a state rule of practice, review by this Court is barred unless this Court is able to find that application of the state rule of practice to the case at hand does not constitute an adequate state ground. This is so quite irrespective of whether the state appellate court had the power to refuse review for no reason at all.[Footnote 8]

The majority might have another meaning in mind when it describes the State's procedural rule as "discretionary." It may be suggesting that "reasonable written notice," and "reasonable opportunity to examine" are such flexible standards that the Virginia Supreme Court of Appeals has the "discretion" to decide a close case either of two ways without creating an obvious conflict with earlier decisions. If this is what the majority means by "discretionary rule," then I must register my disagreement. This kind of "discretion" is nothing more than "the judicial formulation of law," for a court has an obligation to be reasonably consistent and "to explain the decision, including the reason for according different treatment to the instant case."[Footnote 9] Surely a state ground

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is no less adequate simply because it involves a standard that requires a judgment of what is reasonable, and because the result may turn on a close analysis of the facts of a particular case in light of competing policy considerations.

Although the majority's loose use of the word "discretionary" may suggest that any decision made pursuant to a broad standard cannot provide an adequate state ground, I think examination of the earlier opinions of the Virginia Supreme Court of Appeals, several of which are cited by the majority, provides the proper foundation for the result reached by the majority, under the principle of NAACP v. Alabama, 357 U.S. 449 (1958).

The finding of the Virginia Supreme Court of Appeals of a violation of Rule 5:1, 3 (f), in this case was in my view based on a standard of reasonableness much stricter than that which could have been fairly extracted from the earlier Virginia cases applying the rule[Footnote 10] and its predecessor statute.[Footnote 11] In other words, although Rule 5:1, 3 (f), itself may not be novel, the standard implicitly governing the rule's application to the facts here was. I think it fair to conclude that in light of these earlier decisions, and the principle set forth in Bacigalupo v. Fleming, 199 Va. 827, 835, 102 S. E. 2d 321, 326 (1958),[Footnote 12] the petitioners here might have justifiably

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thought that review in the Supreme Court of Appeals would not be barred by the rule, notwithstanding Snead v. Commonwealth, 200 Va. 850, 108 S. E. 2d 399 (1959), the one case cited below by the Virginia court, relied on here by respondent and yet somehow ignored by the majority.[Footnote 13] Because "[n]ovelty in procedural requirements

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Housing Law has a provision that explicitly makes it unlawful to "discriminate against any person in the terms, conditions, or privileges of . . . rental [of housing], or in the provisions of services or facilities in connection therewith, because of race, [or] color . . . ." 42 U.S.C. 3604 (b) (1964 ed., Supp. IV). (Emphasis added.) In contrast, as the majority in Jones noted, 1982 "does not deal specifically with discrimination in the provision of services or facilities in connection with the sale or rental of a dwelling," 392 U.S., at 413.

By attempting to deal with the problem of discrimination in the provision of recreational facilities under 1982, the Court is forced, in the context of a very vague statute, to decide what transactions involve "property" for purposes of 1982. The majority states that "[i]t is not material whether the membership share [in Little Hunting Park] be considered realty or personal property, as 1982 covers both." But examination of the opinion will show that the majority has failed to explain why the membership share is either real or personal property for purposes of 1982. The majority's complete failure to articulate any standards for deciding what is property within the meaning of 1982 is a fair indication of the great difficulties courts will inevitably confront if 1982 is used to remedy racial discrimination in housing. And lurking in the background are grave constitutional issues should 1982 be extended too far into some types of private discrimination.[Footnote 14]

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that Congress has not explicitly provided - injunctive relief in Jones, and now a right to damages here. See Part III, infra.

These remedies are expressly provided for in the Fair Housing Law, which, with its variety of techniques for enforcing its prohibition of housing discrimination, again stands in sharp contrast with 1982. First, an injured party can complain to the Secretary of Housing and Urban Development who is empowered to investigate complaints, and use "informal methods of conference, conciliation, and persuasion" to secure compliance with the law.[Footnote 15] Should the Secretary's efforts prove unavailing, the complainant can go to court.[Footnote 16] As an alternative to going first to HUD, it appears that a person may go directly to court to enforce his rights under the Fair Housing Law,[Footnote 17] which expressly provides for a wide variety of relief, including restraining orders, injunctions, compensatory damages, and punitive damages up to $1,000.[Footnote 18] Furthermore, the Act allows a court to appoint counsel and waive all fees for indigent plaintiffs, and to award costs and, in certain cases, counsel fees to a successful plaintiff.[Footnote 19] In addition to actions initiated by private parties, the Attorney General is empowered to bring civil actions for preventive civil relief, and criminal actions to punish those who by force or threat of force willfully interfere with or intimidate

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those who wish to exercise, or aid others in the exercise, of their rights under the Fair Housing Law.[Footnote 20]

Given this comprehensive, contemporary statute, the limitations of which have not yet even been established, I believe that the Court should not decide this case but should instead dismiss the writ of certiorari as improvidently granted.[Footnote 21] This Court's certiorari jurisdiction should not be exercised simply "for the benefit of the particular litigants," Rice v. Sioux City Cemetery, 349 U.S. 70, 74 (1955), but instead for the "settlement of [issues] of importance to the public as distinguished from . . . the parties," Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393 (1923). Even from the perspective of the parties, this case has lost much of its practical importance due to the fact that Dr. Freeman's work has taken him and his family away from the area served by Little Hunting Park, thereby making moot his original claim for injunctive relief.[Footnote 22] But more fundamentally, I think here, as I did in Jones, that the existence of the Fair Housing Law renders the decision of this case of little "importance to the public." For, although the 1968 Act does not cover this particular case,[Footnote 23] should a Negro in the future rent a house but be

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denied access to ancillary recreational facilities on account of race, he could in all likelihood secure relief under the provisions of the Fair Housing Law.[Footnote 24] III The undiscriminating manner in which the Court has dealt with this case is both highlighted and compounded by the Court's failure to face, let alone resolve, two issues that lie buried beneath the surface of its opinion. Both issues are difficult ones, and the fact that the majority has not come to grips with them serves to illustrate the inevitable difficulties the Court will encounter if it continues to employ 1982 as a means for dealing with the many subtle human problems that are bound to arise as the goal of eliminating discriminatory practices in our national life is pursued.

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examination of the record reveals, first, the necessity for a remand on the majority's own premises. It also makes apparent the majority's failure to provide any guidance as to the legal standards that should govern Sullivan's right to recovery on remand. An awareness of the complexity of the issues relevant to Sullivan's right to redress suggests further, I think, the appropriateness of a discretionary denial of review.

1. The Circumstances of Sullivan's Expulsion. After the Board of Little Hunting Park refused to approve the assignment of a membership share from Sullivan to Freeman, Sullivan attempted to convince the Board to reverse its decision. To this end, Sullivan first met with members of the Board, and protested their actions. He subsequently mobilized a campaign both by other members of the club and by persons in the community as a whole to force the Board to reconsider its decision. The means used in this campaign, as the brief for petitioner Sullivan acknowledges,[Footnote 25] included phone calls to members of the Board, letters to local clergy, and the circulation among the members of Little Hunting Park of a petition that called for a meeting of the full membership to consider Dr. Freeman's case.

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The Board subsequently provided a detailed specification of its charges against Sullivan,[Footnote 26] and these included, inter alia, allegations that Sullivan had (a) instigated a campaign by which board members were harassed by "unfriendly phone calls" accusing them of bigotry; (b) used "abusive" language in a phone call to the president of the Board; (c) written letters to local clergy, including the minister of the church which employed the president of Little Hunting Park, accusing board members of participation in "real moral evil"; and (d) used "violent and abusive language" to members of Little Hunting Park who had refused to sign his petition. After the hearing on these charges, the Board expelled Sullivan and tendered to him the current market value of the two membership shares that he held.

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scope of its review of the Board's actions was "limited" because Little Hunting Park was a "private and social" club, and then went on to find that the Board had acted within "the powers conferred on it by the By-Laws" in expelling Sullivan, and that "there was ample evidence to justify [the Board's] conclusion that the complainant's acts were inimicable to the Corporation's members and to the Corporation."

2. With this statement of the record in mind, several observations must be made about the majority's treatment of Sullivan's rights. First, in stating that "Sullivan's expulsion [was] for the advocacy of Freeman's cause," the majority surely cannot be taken to have resolved disputed testimony, and decided the facts underlying Sullivan's expulsion. If these facts are relevant to Sullivan's remedial rights, as surely they must be, then a remand for detailed findings seems unavoidable under the majority's own premises.

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As an alternative, Sullivan might be thought to be entitled to relief from those injuries that flowed from the Board's violation of its "duty" to Freeman under 1982. Such a standard might suggest that Sullivan is entitled to damages that resulted from Little Hunting Park's initial refusal to accept the assignment to Freeman but again not to reinstatement. Or does the Court think that 1982 gives Sullivan a right to relief from injuries that result from his "legitimate" protest aimed at convincing the Board to accept Freeman? If so, what protest activities were legitimate here? Most extreme would be a standard that would give Sullivan relief from injuries that were the result of any actions he took to protest the Board's initial refusal, irrespective of Sullivan's means of protest. Only this standard would require reinstatement, irrespective of the disputed facts here. But this standard would mean that 1982 gave Sullivan a right to regain his membership even if the Board has expelled him for using intemperate and abusive threats as a means of protesting Freeman's exclusion.[Footnote 27]

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a remedy for a federal right bottomed on a federal statute that itself has no remedial provisions.

Implied remedies for federal rights are sometimes solely a matter of federal law[Footnote 28] and other times dependent, either wholly or partially, upon state law.[Footnote 29] Difficult and complex questions are involved in determining what remedies a state court must[Footnote 30] or must not[Footnote 31] provide in cases involving federal rights.[Footnote 32]

It should be noted that the majority's opinion, though perhaps deciding very little[Footnote 33] only adds to the confusion already existing in this area. Section 1988 of Title 42, which the majority apparently thinks decides this case, is concerned with the remedial powers of federal district courts and it provides that the federal courts shall look to state law to find appropriate remedies when the applicable federal civil rights law is "deficient in the provisions necessary to furnish suitable remedies . . . ." But the majority turns this provision on its head by suggesting (1) that 1988 creates a federal remedy, apart from state law, when the remedial provisions of a civil rights statute, like 1982, are "deficient"; and (2) that 1988 itself somehow imposes this federal remedy on the States.

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If 1988 says anything at all relevant for this case, it suggests that in those cases where it is appropriate to cure remedial deficiencies of a federal civil rights statute by implication, this is to be done by looking to state law to see what remedies, consistent with federal policies, would be available there.

By reason of these considerations, many of which could hardly have been foreseen at the time certiorari was granted, I would dismiss the writ in this case as improvidently granted.

[Footnote 1] 392 U.S., at 452-454 (dissenting opinion).

[Footnote 2] 392 U.S., at 454-473 (dissenting opinion). See Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 Sup. Ct. Rev. 89, 99-122; The Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 93-103 (1968).

[Footnote 3] Civil Rights Act of 1968, Tit. VIII, 42 U.S.C. 3601 et seq. (1964 ed., Supp. IV).

[Footnote 4] The third and final stage in the expansion of the coverage of the Fair Housing Law takes effect after December 31, 1969. See 42 U.S.C. 3603 (b) (1964 ed., Supp. IV).

[Footnote 5] See n. 1 of the majority opinion, ante, at 231, for the text of the rule.

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