Sweet Briar Institute v. Button , 280 F. Supp. 312 ( 1967 )

ALBERT V. BRYAN, Circuit Judge:

On the appeal of Sweet Briar Institute, our order of abstention was reversed by the Supreme Court with directions for consideration of the case on its merits. The present posture of the suit is, then, that it stands sub judice for decision on the original submission. Because our first opinion [see Appendix] recited the history of the litigation, the material facts and the adversary contentions, we go immediately to the issue at hand: whether the State of Virginia may enforce the provision in the will of the founder of the college restricting enrollment to “white girls and young women”.

We conclude it cannot. The State cannot require compliance with the testamentary restriction because that would constitute State action barred by the Fourteenth Amendment. This was the express holding in the Girard case, Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957).

A permanent injunction will be issued accordingly.

APPENDIX

ALBERT V. BRYAN, Circuit Judge:

A racial restriction limiting the students who could be admitted to Sweet Briar College, Virginia, to “white girls and young women” was imposed by the will of Indiana Fletcher Williams which created the trust whereby the institution was established and has been operated since 1906. The college, now chartered by Virginia as a non-stock, nonprofit corporation and as such a testamentary trustee, brought this suit to have enforcement of the restriction enjoined and the stipulation declared unlawful.

To this end the complaint alleges invalidity in the restriction on the ground that it offends the equal protection clause of the Fourteenth Amendment; the Civil Rights Act of 1964, 42 U.S.C. § 2000a-1 through 2000a-6; and the recent pronouncements of the United States Supreme Court outlawing invidious racial or color distinctions. Further allegations aver serious detriment to the college, both economic and educational, by reason of the racial stipulation.

Defendants to the complaint are the Commonwealth’s Attorney of Amherst County, in which the college is located, and the Attorney General of Virginia. They are charged by law with the enforcement of the terms of charitable trusts existing in the State, such as that-embodying Sweet Briar College. The complaint prays injunction of these officers from prosecuting any suit to effectuate the restriction.

The Williams will, dated April 3, 1899, was duly probated in Virginia in 1901. It directed the organization of a corporation to receive a devise of large tracts of land and a generous legacy of moneys, constituting the trust estate, as follows:

“The said corporation shall be formed with the object and with the power of establishing and maintaining within the State of Virginia, a school or seminary for the education of white girls and young women * * *.

“2. Immediately upon the formation and organization of such corporation, the said trustees [under the will] shall grant and convey, and I hereby give and devise, the said * * * property * * * to the said corporation, to have and to hold the same unto it, and its successors forever, upon the conditions and for the purposes hereinafter declared, which it shall accept and assume, namely: the said corporation shall with suitable dispatch establish and shall maintain and carry on upon the said plantation a school or seminary, to be known as the ‘Sweet Briar Institute’, for the education of white girls, and young women. It shall be the general scope and object of the school to impart to its students such education in sound learning, and such physical, moral and religious training as shall in the judgment of the directors best fit them to be useful members of society * * (Accent added.)

These provisions were carried into the corporate charter.

Before the commencement of this suit the directors of the college adopted resolutions proposing the acceptance of students without reference to race. After submission of the case to the court, Sweet Briar put this policy into effect by matriculating a Negro applicant. It also accepted Federal grants of moneys in the way of scholarships and other aid which are granted only to colleges not maintaining segregation by race or color.

The college’s attack, mounted on the Fourteenth Amendment, is pointed at the racial restriction as one permitted and compelled by State action, in that in both aspects it is predicated on the immanent proscriptions of section 55-26, Code of Virginia of 1950. This statute and its predecessors validate charitable trusts for education, which were not permitted prior to this legislative approval. The highest court of Virginia construed this law, in Triplett v. Trotter, 169 Va. 440, 193 S.E. 514 (1937), to mean that an institution so created cannot admit both white and Negro students, but its admissions must be limited exclusively to one or the other race. Another target of attack on the same ground is section 140 of the Virginia Constitution forbidding the education of white and Negro scholars in the same school.

Plaintiff avers that the defendant State officials threaten to employ these racial prohibitions to force Sweet Briar to adhere to the will’s racial restriction. The college also alleges that the Civil Rights Act of 1964, sections 202 and 203, 42 U.S.C. §§ 2000a-1 and 2, precludes the requirement of racial discrimination.

Two years prior to the April 1966 commencement of this suit, the college filed an action against the same defendants in the Circuit Court for Amherst County, asking for judicial guidance of the plaintiff in the administration of its trust when facing both the restriction and its alleged detriment to the success of the college and its ability to achieve the aims of the will. There the plaintiff also attacked the restriction as violative of the Fourteenth Amendment.

At the time the present suit — the Federal case — was begun, the Circuit Court Judge had announced that he would dismiss the case before him because he found no occasion for the suit. The decree followed. However, he allowed the college to amend its complaint, and the cause now stands for hearing on the amendment.

Relying upon the plaintiffs’ election to proceed first in the State court, the present pendency of that case and the decision rendered therein, the defendant officials moved for dismissal of the Federal suit, or for abstention here from further proceedings until the college had carried its case through the State courts, trial and appellate. After considering the record and the arguments of counsel, on brief and orally, we have decided to abstain.

This course is dictated first because the law does not allow the prosecution of a second suit after a concomitant suit has been decided. Next, it is dictated by the established principle that the Federal courts should not pass upon controversies primarily dependent for solution upon local law until the State courts have ruled upon them in consideration of the Federal grounds of attack. Thirdly, only through abstention here can the college procure a complete answer to its desire for a judicial ruling upon the present vitality of the restriction.

I. Precedent permits the pendency of two contemporaneous in personam actions between the same parties, one in the State and one in the Federal court, but an adjudication of the same issue in one of them automatically bars the other as res judicata. That Sweet Briar’s State suit has already presented the same issues as are tendered now is plain. This is acknowledged by,the college in excepting to the State decision on the ground that the State court had not passed on the Federal questions raised in the suit. Particularly, both suits pleaded the Fourteenth Amendment and both were submitted while the Civil Rights Act was in the comprehension of the court and counsel. The State court decision, in effect upholding the racial restriction, was announced almost a year before the Federal suit was filed.

A justification urged for maintenance of the Federal suit is the asserted delay of the State judge in entering a formal decree implementing his decision. However, the necessary order was entered at about the same time as the Federal case was instituted. Moreover, we have no jurisdiction to police a State court in setting down its pronouncements. The remedy for unreasonable delay, if any there be, is well within the powers of the State judiciary.

It is almost cavil to attempt to justify the Federal suit on the assertion that the State court refused or failed to decide the Federal questions. They were all noted, even if not discussed, by the State judge, and the case tendering them was held to be without merit. Right or wrong it was an unequivocal denial of the Federal claims. A direction for dismissal of a complaint is just about the most explicit and definitive determination of the claims therein as is conceivable.

A contrary conclusion cannot succeed because of the absence from the demurrer, on which the State court decided the controversy, of a specific mention of either the Federal Constitution or the Civil Rights Act. In Virginia, as elsewhere generally, a ruling sustaining a demurrer, save when raising only a procedural point, is a decision on the merits. It precludes relitigation of the disputed matters. Not only that, it is conclusive upon any contention which could have been urged by the plaintiff although it was not. The basis of this rule is quite understandable — it prevents vexation of a defendant through repeated trials. The principle was clearly enunciated in Griffin v. Griffin, 183 Va. 443, 32 S.E.2d 700, 702 (1945), the Court saying:

“ ‘When the second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive of the latter not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings or as incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters a new suit on the same cause of action cannot be maintained between the same parties.’ 4 A.L.R. 1174, note. A general demurrer which denies the right of the plaintiff to recover on the cause of action alleged, which is sustained, is a decision on the merits. * * * ” (Accent added.)

This doctrine was expounded, too, in Tomiyasu v. Golden, 358 F.2d 651, 653 (9 Cir. March 1966) in these words:

“Appellants’ contention that a federal right has been violated rests on the allegation that the Nevada statute providing for foreclosure sales under deeds of trusts, as applied to appellants, deprived them of their property without notice and a fair hearing. This is precisely the basis upon which recovery was sought under state law in the state courts. By merely failing to raise the constitutional issue in the state action, appellants could not preserve for themselves the right to enter a federal court at a later date upon the same facts, alleging the same wrong, and seeking the same recovery, simply because they present a new theory of relief based upon the Constitution. * * * If appellants have had one chance to litigate the issues they now raise here, they have had the process which the state owes them and the Constitution secures to them.”

Support for this view was found by the Ninth Circuit in Angel v. Bullington, 330 U.S. 183, 188-189, 67 S.Ct. 657, 91 L.Ed. 832 (1947).

The allowance of the college’s amendment did not destroy the res judicata effect of the State court’s decision in respect to the Federal cause. Restatement of Judgments, § 41, Comment (d), p. 163. The decree of the Amherst Circuit Court unequivocally dismissed the case. Leave to amend is no more than the consent of the court to hear further argument; it does not ipso facto suspend the decision embedded in the decree. The resolution of the case remains as stated until the decree is vacated. Actually, the amended bill here introduced no ground of argument not available to the college from the beginning, including § 55-26, Code of Virginia, and the Civil Rights Act of 1964. But whether or not the original State decision is sufficiently final to constitute res judicata, the fact is that the State case was the first to go to decision, and on reaching that stage it should preclude the further prosecution of the Federal case, at least until carried through the State court of last resort.

Dismissal Warranted

Under England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) we could dismiss the case. Save for appellants’ misunderstanding there of the holding in Government and Civic Employees, etc. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957) the Court stated that the Federal suit would have been dismissed, once the State court had taken the case and decided it in its entirety. Although cited by plaintiff to sustain its procedure, the plaintiff’s course here is diametrically opposed to that approved in England. There the suit was commenced in the Federal court but remitted by that court to the State court. Here the plaintiff has done just the reverse, a maneuver sharply disapproved by the Supreme Court. Apt here is this part of the England opinion:

“But we see no reason why a party, after unreservedly litigating his federal claims in the state courts although not required to do so, should be allowed to ignore the adverse state decision and start all over again in the District Court. Such a rule would not only countenance an unnecessary increase in the length and cost of litigation; it would also be a potential source of friction between the state and federal judiciaries. We implicitly rejected such a rule in Button [N.A.A.C.P. v. Button, 371 U.S. 415, [83 S.Ct. 328, 9 L.Ed.2d 405] (1963)], when we stated that a party elects to forgo his right to return to the District Court by a decision ‘to seek a complete and final adjudication of his rights in the state courts.’ We now explicitly hold that if a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then — whether or not he seeks direct review of the state decision in this Court — he has elected to forgo his right to return to the District Court.”

375 U.S. at 418-419, 84 S.Ct. at 467.

Obviously, then, the plaintiff is not entitled to proceed now in the Federal court. Indeed, we think England almost compels dismissal. However, to avoid the possibility of injury to the plaintiff, we prefer to defer final disposition of this case until plaintiff’s claims have been put before the State courts completely.

II. Because the State courts had already advanced to a full determination of all the issues, comity between the Federal and State judiciaries forcefully directs that we abstain in favor of the State court — stay our hand. Alabama Public Service Commission v. Southern R. Co., 341 U.S. 341, 350, 71 S.Ct. 762, 95 L.Ed. 1002 (1950); Glen Oaks Utilities, Inc. v. City of Houston, 280 F.2d 330, 334 (5 Cir. 1960); Reid v. City of Norfolk, 179 F.Supp. 768, 773 (E.D.Va. — 3-judge court —1960). Comity in these circumstances is quite unlike a deference exercised only because of the mere concomitance of the State suit — it is rather a refusal to frustrate a State judicial determination complete for all practical purposes.

The paramount ground for abstention, however, is that the resolution of conflicting views under the State law is the exclusive province of the State courts until a Constitutional question develops. But even then the question must first be left to the State courts to consider and decide it “in light of the constitutional objections presented to the [Federal court]”. Government and Civic Employees, etc. v. Windsor, 353 U.S. 365, 366, 77 S.Ct. 839 (1957). See City of Meridian v. Southern Bell T. & T. Co., 358 U.S. 639, 640, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 104, 65 S.Ct. 152, 89 L.Ed. 101 (1944). In Windsor the decision was reversed because the complainant had not submitted the Federal issues to the State court.

The wisdom of this policy is now sharply exampled. Although in the Federal suit no ambiquity in the will is explicitly alleged nor guidance in administration specifically asked, in actuality both are pleaded. Instead of calling the testamentary restriction an ambiguity, it is described as an ineffective provision, and the college plainly desires to be advised on how to treat it in the operation of the institution. The action is brought by Sweet Briar as a testamentary trustee, administering its trust according to the law of Virginia, and it involves a question of statewide importance to Virginia: whether a private benefactor may establish and operate in the State a school exclusively for Negro or exclusively for white students. Thus it is particularly fitting that the adjudication be made primarily by Virginia courts. If that course had been pursued, the initial suit would have led to the desired end: a declaration, with an ultimate Federal review, upon the effectiveness of the racial restriction when apposed to State enforcement and when apposed to the action of others. The results might well be different in the two aspects. Review of the decision upon the Federal points would be available in the United States Supreme Court or in this court.

Sweet Briar’s counsel cannot be serious in urging that §§ 202, 203 and 207 of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-1, 2000a-2, 2000a-6, prevent abstention of the Federal court until the State court acts, for such a suspension by the Federal court was suggested by the college. In its amended bill of complaint in the State court, Sweet Briar explained that “it is exposing its Federal claims” to the State court while the Federal suit is pending. Furthermore, the cited sections of the Civil Rights Act of 1964 reveal in themselves that they refer solely to the exercise and denial of rights possessed by the public. See Sec. 201(e). The right to enter Sweet Briar is certainly not a public right.

Indeed, the net effect of the plaintiff’s procedure is to acknowledge the obligation of submitting the issue primarily to the State court. The following recital of the procedure discloses this intention:

(1) First, the Federal and State questions were initially submitted to the Circuit Court of Amherst County and there decided;

(2) Later, on the same grounds included in the State suit, plaintiff began this additional action in the Federal court;

(3) Then plaintiff amended the State complaint and asked the State court to “dispose of the questions of State law in the light of complainant’s Federal contentions” reserving the right to go back to the Federal court, if not satisfied with the State court’s ruling on the Federal issues; and

(4) Finally, plaintiff' tells the State court that the college may return there still again if not satisfied with the Federal court’s ruling on the Federal points.

Yet, now the college asks for an immediate adjudication by the Federal court.

Now opposing abstention, Sweet Briar argues that there is no ambiguity in the will or in the Virginia law necessitating an advance ruling by the State courts. Even if this contention be conceded, despite the doubt alleged of the effectiveness of the racial stipulation and the college’s allegation of ambiguity in the State suit both originally and in the amendment, still the need for initial State court consideration remains. We have shown that the plaintiff must “expose”, as it says, the restriction and the prohibitions to the State court under the focus of the Federal strictures upon them. In this at least the following questions seemingly need to be answered by the State court in the light of the Federal Constitution:

1. Whether a will made more than fifty years before the Supreme Court’s racial decisions were rendered should be affected by these subsequent enunciations ;

2. Whether Triplett v. Trotter, supra, decided in 1937, will still be retained by her courts as the law of Virginia in view of the racial decisions of the Federal courts since 1937;

3. Whether the testatrix included the racial stipulation in 1899 by reason of the existence of the Virginia statute or because of her own volition.¹ Cf. Justice Harlan dissenting in Evans v. Newton, 382 U.S. 296, 315, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966);

4. Whether, if the racial clause of the Williams will is held inoperative, the trust fails entirely; or can be terminated by the Virginia legislature under section 55-34 of the Code of Virginia, 1950; or is subject to the application of the cy pres doctrine under section 55-31 of the Code; or some other disposition is proper;

5. Whether § 140 of the Virginia Constitution ánd § 22-221, Virginia Code, briefed by the college as unlawfully compelling racial segregation in private schools, apply to such schools; and

6. Whether the Virginia statutes pertaining to the conferring of academic degrees; exemption of property from condemnation and taxation; police protection; power of the State to abrogate the trust; and other subjects related to educational institutions, imbue Sweet Briar with a State character, as its brief suggests. These statutes appear in the Code of Virginia 1950 as the following sections: 23-9, 25-46.6, 55-34, 58-12 (reiterating here Va. Constitution § 183), 58-128, 19.1-28, 42-57 and 15.1-139.

III. The college, it is to be observed, would be the one hurt if this court entered upon a decision of this case forthwith. In reality, as we have noted, Sweet Briar has sought, and quite rightly, a judicial declaration upon the validity of the racial clause, but at this juncture this court could not give a complete answer. The reason is that the Federal court does not have the competence to do so.

At best it could only rule that the State authorities may not enforce the racial proviso — a narrow, negative disposition. That would not be an invalidation of the restriction for all purposes; its viability would not thereby be laid to rest. Any person in interest, such as a donor to the college, a minority member of the board of directors, or possibly others, it would seem,² could still question the recent action of the college as ultra vires the corporation or the board, or in violation of the trust clause of the will. The college’s or board’s administration of the trust is, always subject to the supervision of the State court. Virginia Code 1950, section 55-29, 31; Moore v. Downham, 166 Va. 77, 184 S.E. 199 (1936).

An analogy may be found in the Federal and State decisions upon the Girard will. The highest court of Pennsylvania, in In Re Girard College Trusteeship, 391 Pa. 434, 138 A.2d 844 (1958), enforced a similar racial stipulation of the Girard will after the United States Supreme Court decision had held it unenforceable by the State. Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957). In doing so the State court distinguished the case from the earlier Supreme Court decisions to which the plaintiff here looks for its thesis that the race proviso is not enforceable, e. g. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) and Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). The Supreme Court refused to disturb the second Pennsylvania case. Worth noting, too, both Pennsylvania cases reached the Supreme Court only after passing through the State courts.

In Evans v. Newton, supra, 382 U.S. 296, 300, 86 S.Ct. 486, 489 (1966), speaking for the Court Justice Douglas said:

“If a testator wanted to leave a school or center for the use of one race only and in no way implicated the State in the supervision, control, or management of that facility, we assume arguendo that no constitutional difficulty would be encountered.”

Our citation of these decisions is not to predict the ultimate outcome of State court consideration of the instant clause, but solely to show that its potency would still be debatable if this case were not committed for that consideration. The point is that doubt of the legal and moral right of Sweet .Briar to deviate from terms of the will can plague the college until an answer is procured from the State courts. Meanwhile, the fractional decision this court is now asked to render might inadvertently mislead. The college, Government agencies, donors and students might be led to accept it as the final word on the issue, when it would not be.

For these reasons we deny at this time the relief prayed by the plaintiff. Jurisdiction of this suit will be retained but further prosecution of it will be stayed until the plaintiff exhausts the remedies available in the State courts of Virginia. In the event the plaintiff does not pursue these remedies within a reasonable time this suit will be dismissed with prejudice.

An order is today entered in accordance with the views expressed herein.

1 . It is said that this question is foreclosed by Griffin v. State of Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964). There, however, the racial discrimination was committed by a State deputy sheriff, albeit at the instance of the proprietor of the amusement park, which undoubtedly endued the entire incident with State action. 378 U.S. at 135, 84 S.Ct. 1770. Here, the discrimination was the act of the testatrix, a private citizen.

2 . The Virginia statute on which the plaintiff relies, § 55-29, does not vest exclusively in the Commonwealth Attorney or the Attorney General the power to enforce the terms of a charitable trust. Indeed, it implies that there may be others who can do so. Otherwise, these officials would become the sole judges of the correctness of the trust administration.