Sullivan v. Little Hunting Park, Inc. , 90 S. Ct. 400 ( 1969 )

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).¹

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.

I

When the ease 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:

“The requirement that opposing counsel have a reasonable opportunity to examine the transcript sets out the purpose of reasonable notice. If, after 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-A58; 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 209.² But those same decisions do not enable us to say that the Virginia court has so consistently applied its notice requirement as to amount to a self-denial of the power to entertain the federal claim here presented if the Supreme Court of Appeals desires to do so. See Henry v. Mississippi, 379 U. S. 443, 455-457 (Black, J., dissenting). Such a rule, more properly deemed discretionary than jurisdictional, does not bar review here by certiorari.

II

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 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 LT. 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. § 1982.³ 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:

“Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom— freedom to 'go and come at pleasure’ and to ‘buy and sell when they please’ — would be left with ‘a mere paper guarantee’ if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.” 392 U. S., at 443.

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 assignment of the membership share in Little Hunting Park. The transaction clearly fell within the “lease.” The right to “lease” is protected by § 1982 against the actions of third parties, as well as against the actions of the immediate lessor. Respondents’ actions in refusing to approve the assignment of the membership share in this case was clearly an interference with Freeman’s right to “lease.” A narrow construction of the language of § 1982 would be quite inconsistent with the broad and sweeping nature of the protection meant to be afforded by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from which § 1982 was derived. See 392 U. S., at 422-437.

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 wTay supersedes the provisions of the 1866 Act. Fo,r 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 right based on any other Federal . . . law not inconsistent” with that Act.⁴

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 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.

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:

“A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied . . . .”

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:

“The jurisdiction in civil . . . matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary 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 Act⁵ which has no possible application to events long preceding its enactment.

Reversed.

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.”

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 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.

3 42 U. S. C. § 1982 provides:

“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.”

4 Section 207 (b) of the Act of July 2, 1964, 78 Stat. 246, provides:

“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.”

5 The Act is not fully effective until December 31, 1969. 42 O'. S. C. § 3603 (b) (1964 ed., Supp. IV). Even at that time it will not apply to a “single-family house” if the house is sold without the services of a real estate broker and without the notice described in § 3604 (c) (1964 ed., Supp. IV). See § 3603 (b) (1964 ed., Supp. IV). So no one knows whether the new Act would apply to these ancient transactions, even if they arose after December 31, 1969.