Sullivan v. Little Hunting Park, Inc. (396 U.S. 229)/Dissent Harlan

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

In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (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, and open to serious question in light of the statute's legislative history, 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). 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.

Because the Fair Housing Law will become fully effective less than three weeks from now, I think the majority even more unwise than it was in Jones, in precipitately breathing still more life into § 1982, which is both vague and open-ended, when Congress has provided this modern statute, containing various detailed remedial provisions aimed at eliminating racial discrimination in housing. For this reason, which I elaborate in Part, II, I would dismiss the writ in this case as improvidently granted. To provide examples of some of the difficulties the Court will inevitably encounter if it continues to employ § 1982 in these sorts of cases, I examine in Part III the undiscriminating manner in which the majority deals with, and for the most part ignores, the complexities involved in (1) giving Sullivan relief and (2) engrafting a damage remedy onto § 1982 in a case arising from a state court. But, first, I consider the threshold question of whether there is present in this case an adequate state ground which would bar review by this Court.

* ACEQUACY 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. The majority here suggests that the State's procedural requirement, though not a 'novel' one 'fashioned * *  * for the first time in this case,' nevertheless had not been 'so consistently applied *  *  * as to amount to a self-denial of the power to entertain the federal claim.' The majority then goes on to conclude that because the State's procedural rule is 'more properly deemed discretionary than jurisdictional,' review should not be barred here. 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.

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 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 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.

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.' Surely a state ground 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 that proper foundation for the result reached by the majority, under the principle of NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (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 and its predecessor statute. 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 32, 326 (1958), the petitioners here might have justifiably 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.

Because '(n)ovelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal * *  * rights,' NAACP v. Alabama, 357 U.S., at 457-458, 78 S.Ct., at 1169, I conclude that the decision below does not rest on an adequate state ground.

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 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, 88 S.Ct., at 2189.

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 ether 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 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. Should the Secretary's efforts prove unavailing, the complainant can go to court. 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, which expressly provides for a wide variety of relief, including restraining orders, injunctions, compensatory damages, and punitive damages up to $1,000. 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. 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 those who wish to exercise, or aid others in the exercise, of their rights under the Fair Housing 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. This Court's certiorari jurisdiction should not be exercised simply 'for the benefit of the particular litigants,' Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 74, 75 S.Ct. 614, 616, 99 L.Ed. 897 (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, 43 S.Ct. 422, 423, 67 L.Ed. 712 (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. 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, should a Negro in the future rent a house but be 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.

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.

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 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 or 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, 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.

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 by-laws, 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.

The Board subsequently provided a detailed specification of its charges against Sullivan, 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.

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 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 anple evidence to justify (the Board') 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.

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.

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.

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

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

It should be noted that the majority's opinion, though perhaps deciding very little 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. 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.