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).
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. Mayer Co., 392 U.S. 409. 392 U.S. 657. 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.
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 ten-day 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:
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.
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
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., 392 U.S. 409, we reviewed at length the legislative history of 42 U. S. C. § 1982.
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. 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, by reason of the Fourteenth Amendment.
In Jones v. 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
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 in Barrows v. Jackson, 346 U.S. 249, 259, that the white owner is at times "the only effective adversary" of the unlawful restrictive covenant. Under the terms of our decision in Barrows, there can be no question but that Sullivan has standing to maintain this action.
We noted in Jones v. Mayer Co., that the Fair Housing Title of the Civil Rights Act of 1968, 82 Stat. 81, in no way impaired the sanction of § 1982. 392 U. S., at 413-417. What we said there is adequate to dispose of the suggestion that the public accommodations provision of the Civil Rights Act of 1964, 78 Stat. 243, in some way supersedes the provisions of the 1866 Act. For the hierarchy of administrative machinery provided by the 1964 Act is not at war with survival of the principles embodied in § 1982. There is, moreover, a saving clause in the 1964 Act as respects "any
Section 1982 derived from the 1866 Act is plainly "not inconsistent" with the 1964 Act, which has been construed as not "pre-empting every other mode of protecting a federal `right' or as granting immunity" to those who had long been subject to federal law. United States v. Johnson, 390 U.S. 563, 566.
We held in Jones v. Mayer Co. that although § 1982 is couched in declaratory terms and provides no explicit method of enforcement, a federal court has power to fashion an effective equitable remedy. 392 U. S., at 414, n. 13. That federal remedy for the protection of a federal right is available in the state court, if that court is empowered to grant injunctive relief generally, as is the Virginia court. Va. Code Ann. § 8-610 (1957 Repl. Vol.).
Finally, as to damages, Congress, by 28 U. S. C. § 1343 (4), created federal jurisdiction for "damages or . . . equitable or other relief under any Act of Congress providing for the protection of civil rights . . . ." We reserved in Jones v. Mayer Co., 392 U. S., at 414-415, n. 14, the question of what damages, if any, might be appropriately recovered for a violation of § 1982.
We had a like problem in Bell v. Hood, 327 U.S. 678, where suit was brought against federal officers for alleged
The existence of a statutory right implies the existence of all necessary and appropriate remedies. See Texas & N. O. R. Co. v. Railway Clerks, 281 U.S. 548, 569-570. As stated in Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39:
Compensatory damages for deprivation of a federal right are governed by federal standards, as provided by Congress in 42 U. S. C. § 1988, which states:
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
In Jones v. Mayer Co., 392 U.S. 409 (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,
Because the Fair Housing Law will become fully effective less than three weeks from now,
ADEQUACY OF THE STATE GROUND
The Virginia Supreme Court of Appeals, both before and after this Court's earlier remand, refused to consider the federal questions presented to it because it found that petitioners had failed to give opposing counsel "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," in violation of Rule 5:1, § 3 (f), of the local rules of court.
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.
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
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."
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
Because Congress has now provided a comprehensive scheme for dealing with the kinds of discrimination found in this case, I think it very unwise as a matter of policy for the Court to use § 1982 as a broad delegation of power to develop a common law of forbidden racial discriminations. A comparison of 42 U. S. C. § 1982 with the new Fair Housing Law, and consideration of the Court's task in applying each, demonstrate to me the need for restraint, and the appropriateness of dismissing the writ in this case, now grounded solely on an alleged violation of § 1982.
Petitioners here complain of discrimination in the provision of recreation facilities ancillary to a rented house found in one of the four subdivisions served by Little Hunting Park. On the one hand, the Fair
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.
Not only does § 1982 fail to provide standards as to the types of transactions in which discrimination is unlawful, but it also contains no provisions for enforcement, either public or private. To give its construction of the statute effect, the Court has had to imply remedies
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.
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.
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.
A. RELIEF FOR SULLIVAN
Because the majority opinion is highly elliptical as to (1) the circumstances surrounding Sullivan's expulsion from Little Hunting Park, (2) the relief Sullivan sought in the state court, and (3) the decision of the trial court, it is necessary for me to begin my analysis simply by stating the facts of these aspects of the case. A full
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,
On July 8 Sullivan received a letter from the Board which stated that it had determined that there was "due cause" to warrant a hearing in order to determine whether Sullivan should be expelled from Little Hunting Park, pursuant to its bylaws, for "conduct inimicable to the Corporation members." This letter referred to Sullivan's "non-acceptance of the Board's decision on the assignment of your membership to your tenant . . . along with the continued harassment of the board members" as the basis for the Board's "due cause" determination.
In response to these actions, Sullivan brought this suit in the Circuit Court of Fairfax County, Virginia, against Little Hunting Park and its Board seeking as relief (1) an order compelling Little Hunting Park to reinstate his membership; (2) monetary damages in the amount of $15,000; and (3) an injunction requiring the Board to approve the assignment to Freeman and forbidding the Board to use race as a factor in considering membership. The trial court, after hearing disputed evidence as to the reasons for Sullivan's expulsion, found for the defendants. It stated that the
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.
Second, the majority has not explained what legal standard should determine Sullivan's rights under § 1982. The majority simply states that "Sullivan has standing to maintain this action" under § 1982, without even acknowledging that some standard is essential for this case to be ultimately decided.
One can imagine a variety of standards, each based on different legal conclusions as to the "rights" and "duties" created by § 1982, and each having very different remedial consequences. For example, does § 1982 give Sullivan a right to relief only for injuries resulting from Little Hunting Park's interference with his statutory duty to Freeman under § 1982? If so, what is Sullivan's duty to Freeman under § 1982? Unless § 1982 is read to impose a duty on Sullivan to protest Freeman's exclusion, he would be entitled to reinstatement under this standard only if the Board had expelled him for the simple act of assigning his share to Freeman.
B. STATE COURT REMEDIES FOR FEDERAL RIGHTS
Because this case arises from a state court, it presents special problems which the majority overlooks, and which suggests again the undesirability of deciding this case in the context of this ancient statute. In deciding that there is a right to recover damages in this case, the majority overlooks the complications involved by dint of the fact that a state court is being asked to provide
Implied remedies for federal rights are sometimes solely a matter of federal law
It should be noted that the majority's opinion, though perhaps deciding very little
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.
"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."
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 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.
"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."
"The remedies provided in this title shall be the exclusive means of enforcing the rights based on this title, but nothing in this title shall preclude any individual or any State or local agency from asserting any right based on any other Federal or State law not inconsistent with this title, including any statute or ordinance requiring nondiscrimination in public establishments or accommodations, or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right."
"It is important that time be given opposing counsel for a reasonable opportunity to analyze such statements characterized by defendant's counsel as being confusing. The entire testimony of a very material witness was left out of the narrative statement when it was presented to the trial judge and it was necessary for him to insert it. We are of the opinion that the notice delivered to the Commonwealth's Attorney at his residence, after office hours, thirty minutes before tendering a narrative statement of the evidence to the trial judge for his signature, does not constitute reasonable notice within the plain meaning of Rule 5:1, § 3 (f) and that the terms of the Rule are mandatory and jurisdictional." 200 Va., at 854, 108 S. E. 2d, at 402.
This case is far different from Snead in significant respects. First, in Snead the court was not confronted with a transcript but instead with a narrative; and this narrative was, by the admission of appellant's own counsel, "of a confusing nature and character." In this case, on the other hand, the record fails to show that counsel for respondent made any objection to the trial judge as to the adequacy of the notice, or to the accuracy of the transcript, see Taylor v. Wood, supra; Stokely v. Owens, supra. Furthermore, at oral argument before this Court, counsel for respondent could not point to a single inaccuracy in the transcript as signed by the trial judge. Tr. of Oral Arg. 20. Second, in Snead opposing counsel was only given one-half hour's notice of a proposed tender to the judge for signature that night. In this case, although the transcript was sent to the judge at about the same time as opposing counsel received notice, that notice stated that the judge would not be asked to sign the transcript for a week, so counsel could first have an opportunity to examine it.
Respondent suggests that the rule requires that opposing counsel have notice and an opportunity to examine the transcript before the transcript is given to the judge rather than simply before the judge signs it. No prior Virginia case of which we have been made aware has so stated, however, and the principle of Bacigalupo quoted by the majority suggests that the key is that there be an opportunity to inspect and to make objections before the judge signs the transcript.