Charles E. Williams v. Hot Shoppes, Inc.

293 F.2d 835

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 22, 1961
• Docket: 15610
• Status: Published

Opinions

WASHINGTON, Circuit Judge,

with whom WILBUR K. MILLER, Chief Judge, and PRETTYMAN, DANAHER, BASTIAN and BURGER, Circuit Judges, concur.

Appellant Charles Williams, a resident of the District of Columbia, brought suit in the District Court against appellee Hot Shoppes, Inc., a Delaware corporation which operates restaurants in several states and the District of Columbia, to recover a statutory penalty of $500 under Sections 1 and 2 of the Civil Rights Act of 1875, and damages of $5,000 under 42 U.S.C.A. §§ 1981, 1983, for alleged deprivations of his civil rights. In essence, appellant’s claim is that on November 5, 1959, appellee’s manager denied him service at its restaurant in Alexandria, Virginia, solely because appellant is a Negro, and because Virginia law requires restaurants either to segregate their facilities or to exclude Negro patrons.¹ Appellant contended that this refusal to serve him was State action of the sort prohibited by the Fourteenth Amendment and the civil rights laws. The District Court held to the contrary and dismissed the complaint. This appeal followed.

I.

First of all, we think that the District Court properly dismissed the claim for the statutory penalty under Sections 1 and 2 of the Civil Rights Act of 1875.² These statutory provisions were held unconstitutional as applied to private intrastate racial discrimination in the Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. Later, in Butts v. Merchants’ & Miners’ Transportation Co., 1913, 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422, the Supreme Court held that these provisions could not be applied to penalize racial discrimination aboard interstate carriers even though the statute could, in that application, be upheld under the commerce power. The Court reasoned that since Sections 1 and 2 were penal in nature and were intended by Congress to have uniform national application, and since the provisions had been declared unconstitutional as applied to private intrastate racial discrimination, the statute should be held wholly invalid rather than be applied in only a fraction of the cases it was intended to cover. In United States v. Raines, 1960, 362 U.S. 17, 23, 80 S.Ct. 519, 4 L.Ed.2d 524 the Supreme Court expressly reaffirmed the Butts decision. Therefore, even if appellee’s conduct is assumed arguendo to be State action, Sections 1 and 2 of the Civil Rights Act of 1875 have no present validity, and appellant’s claim under them was properly dismissed.³

II.

We turn now to appellant’s claim for damages under 42 U.S.C.A. §§ 1981. 1983.⁴ Section 1983 creates a civil action against “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws * '* In order to constitute conduct under “color of law”,⁵ within the reach of the Federal Constitution and statutes, it is essential that appellee’s refusal to serve appellant be State action. See Burton v. Wilmington Parking Authority, 81 S.Ct. 856; Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. It is also clear that there must be a deprivation of a right, privilege or immunity “secured by the Constitution and laws” of the United States. For example, in the Monroe case, just cited, the plaintiff’s immunity from unreasonable search and seizure, guaranteed by the Fourth Amendment to the Constitution, had been grossly violated by the defendants.

In the instant case, the pertinent portions of the complaint are as follows:

“4. On November 5, 1959, plaintiff entered defendant’s restaurant at 900 North Washington Street, Alexandria, Virginia, in a peaceful and orderly manner, for the purpose of obtaining food and beverage, while it was then open for business and occupied by others of the public who were then enjoying the accommodations of the business conducted on the premises. But defendant’s, manager, one Fred McClure, acting within the scope of his authority, refused to serve plaintiff and excluded him from the restaurant, solely by reason of plaintiff’s race or color, under the color of state law, custom or usage.

“5. Defendant’s manager stated that Virginia law required him to refuse to serve plaintiff and to exclude plaintiff from the dining room; that neither he nor defendant had any personal or other reason for excluding plaintiff from the restaurant except for the understanding that Virginia law, as well as the custom and usage of the community, compelled the exclusion of colored persons from the restaurant.

“6. Sec. 18-327, Code of Virginia, requires operators of ‘any place of public . entertainment or public assemblage which is attended by both white and colored persons,’ to segregate them, under penalty of fine of not less than $100 or more than $500 for each violation of the statute. Sec. 18-328, Code of Virginia, requires patrons to comply with such segregated seating, under penalty of fine of not less than $10 or more than $25 for each violation of the statute; authorizes the operator or manager of the place, ‘or any public (sic) [police] officer or other conservator of the peace,’ to eject any person who fails to comply with such segregation requirement; and provides that any such ejected person shall not be entitled to a refund of any admission paid by him. These laws, in effect, require operators of places of public accommodation, including the aforesaid restaurant, which are open to the general public, to exclude all Negroes unless special facilities are provided to segregate them from the rest of the public.

“7. The cited Virginia laws impose an economic burden upon defendant by requiring it to erect partitions or separate facilities for white and colored persons in restaurants operated in Virginia, and thus tend to compel defendant, in order to avoid that burden, to exclude all colored persons entirely. It is a violation of the Fourteenth Amendment to the federal Constitution for the State of Virginia to require the exclusion or segregation of persons in places of public accommodation, solely because of their race or color, irrespective of whether such state compulsion is exercised or accomplished directly or indirectly.

“8. The defendant, as well as other public restaurant keepers in Virginia are following, and have for many years followed, a custom or usage of systematically excluding Negroes from their facilities under the color of sec. 18-327, Code of Virginia. This custom or usage of Virginia has been produced by the interplay of governmental and private action over a long period of time. By being excluded from pub- ' lie dining facilities by reason of said custom or usage, Negroes, including the plaintiff, are deprived of ‘the full and equal benefit of all laws,’ respecting access to public restaurants, ‘as is enjoyed by white citizens,’ under the color of state law, custom or usage, in violation of 42 U.S.C., sec. 1981, and sec. 1, Act of 1875.” (Emphasis supplied.)

The complaint is thus grounded upon the theory that the Virginia public assembly statute, Section 18-327 of the Virginia Code,⁶ applies to restaurants, and compels segregation therein. This was the theory on which Williams pleaded and argued his ease in the District Court, and on which he at first based his appeal to this court. Later, in this court, he advanced a further theory — that appellee’s refusal to serve him was caused solely by the understanding generated by the conduct of State law enforcement officials. Appellant now tells us that the police and prosecutors of Virginia have threatened action against restaurants which do not segregate, and that this was state action, whether or not based on any statutory foundation. The complaint does not say this. But appellant argues that it can be read to say it, relying on the italicized portion of paragraph 8, quoted above. It is there alleged that defendant and other restaurant owners have followed “a custom or usage of systematically excluding Negroes from their facilities under color of sec. 18-327, Code of Virginia. This custom or usage of Virginia has been produced by the interplay of governmental and private action over a long period of time.” The only “custom or usage” alleged is that which arises under color of the statute. Legislative action alone is complained of: nothing is said about executive or police action. The reference to “interplay of governmental and private action” seems clearly to mean that as a result of the governmental action, i. e., the statute, private persons and firms such as defendant have been compelled to discriminate against plaintiff.⁷

The background of this litigation, a matter of public record, may also be noted. Appellant Williams had brought an earlier suit against another restaurant in Virginia, for refusal of service, basing his complaint on the theory of an interference with interstate commerce. When the case came before the Fourth Circuit, appellant conceded that Section 18-327 of the Virginia Code did not apply to restaurants. See Williams v. Howard Johnson’s Restaurant, 4 Cir., 1959, 268 F.2d 845, at page 847. The Fourth Circuit unanimously affirmed the dismissal of the complaint, saying that “Unless these actions [of refusing service to Negroes] are performed in obedience to some positive provision of state law they do not furnish a basis for the pending complaint.” Ibid. The Fourth Circuit s opinion came down on July 16, 1959. The incident at the Hot Shoppe restaurant, on which the present suit is based, occurred on November 5, 1959. The complaint herein, filed on November 25, 1959, was apparently framed to fit the quoted language of the Fourth Circuit, relying on Section 18-327 as the “positive provision of state law” which would provide the basis of the new action.⁸

The rule in Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed. 2d 80, on which appellant relies, is of no help to him. That rule, that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” cannot be used to justify the filing of unsworn statements in an appellate brief which would in effect substitute a new complaint for the old. The essence of modern pleading is that there be adequate notice to the defendant of plaintiff’s claims. Here there is no allegation in the complaint as to threatening activities on the part of Virginia police and prosecutors, and, equally important, no allegation whatever that the defendant actually knew of any such activities, or that the refusal to serve plaintiff was based on fear of such activities or was in any way influenced by them, if in fact they existed.⁹

The complaint, in our view, alleges no more than this: that the restaurant manager discriminated against plaintiff because he believed he was compelled to do so by the Virginia statute. Accordingly, we need not decide whether a cause of action would be stated if the restaurant manager had been compelled to discriminate by administrative officers of the state in the absence of an applicable statute, since that is not alleged.

III.

Decision whether the complaint, so read, states a claim for damages under 42 U.S.C.A. §§ 1981 and 1983 would depend upon the answers to these questions: (1) Does the Virginia public assembly statute apply to restaurants, and require their owners to segregate by race? (2) If it does not so apply, has appellee nevertheless deprived appellant of a federally-protected right, under “color of law"? (3) If it does apply to restaurants, is the statute unconstitutional? (4) If it is unconstitutional, but appellee relied on it in good faith, has appellee subjected itself to damages for depriving appellant of a federally-protected right, under color of law? (5) Has there in any event been “state action" as distinguished from private action ? The answers to all these questions, in greater or lesser degree, must depend upon the interpretation to be given to the Virginia public assembly statute, Section 18-327 of the Code. No Virginia court, as far as we are aware, has ever published an opinion on the matter. The Attorney General of the State, in a well-reasoned opinion, has said that in his view the statute has no application to restaurants.¹⁰ If he is right, the appellant’s cause of action, as stated in the complaint, disappears. The temptation is great to indicate our agreement with his view, and let the case be disposed of on that basis, i. e., an affirmance without more.

The Supreme Court has many times indicated, however, that in situations like the present, where the solution of novel and serious constitutional questions depends on the interpretation to be given a state statute, not yet construed by the state courts, the Federal courts should abstain from interpreting the state statute.

Appellant urges that the doctrine of abstention is not applicable here. He contends that the interpretation to be given Section 18-327 is not potentially dispositive of the case, and maintains (1) that an action will lie, under 42 U.S.C.A. § 1983, upon proof of deprivation of rights “under color of * * * custom, or usage”, without reference to state law; and (2) that “state action" includes the acts of a private person performed under supposed compulsion of state law, even though such acts are not so compelled, provided only that the mistake of law be reasonable.

Both these contentions must be rejected. As to the argument based upon the “custom or usage” language of the statute, we join with the unanimous decision of the Fourth Circuit in support of the proposition that—

“The customs of the people of a state do not constitute state action within the prohibition of the Fourteenth Amendment.” Williams v. Howard Johnson’s Restaurant, 4 Cir., 1959, 268 F.2d 845, 848.

A reading of the statute as broad as that urged by appellant here would raise grave constitutional questions, and in fact would be contrary in substance to the holding in the Civil Eights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835.

Similarly, the argument based upon reasonable mistake of law reaches too far beyond the established lines of constitutional authority to be sustained. Under existing decisions, “color of law” requires a vesting of actual authority of some kind. In Screws v. United States, 1945, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, it was established that the unlawful acts of an individual might be imputed to the state (for purposes of applying the Fourteenth Amendment) if the state had done acts clothing the wrongdoer with the trappings of its sovereignty. A similar view is implicit in the recent pronouncement of the Supreme Court on the subject in Monroe v. Pape, supra. But where the state has done nothing of that sort, we fail to see how the acts of a wrongdoer, no matter how reasonable his mistake of law, may be imputed to the state.

We conclude therefore that relief would be barred, and the suit concluded, by a determination in the Virginia courts that Section 18-327 does not apply here. This being so, we believe that we are obliged on the present facts to refrain from decision and permit the state courts to rule upon the question of state law.

We consider such abstention not merely within the discretion of this court, but compelled by the reasoning implicit in a series of recent decisions of the Supreme Court. We are mindful that “no principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them.” Harrison v. N. A. A. C. P., 1959, 360 U.S. 167, 176, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152.

It is, at the very least, unseemly for a Federal court to “guess at the resolution of uncertain and difficult issues of state law.” Alleghany County v. Mashuda Co., 1959, 360 U.S. 185, 187, 79 S.Ct. 1060, 1062, 3 L.Ed.2d 1163. And the Supreme Court has said that where the issue “involved the scope of a previously uninterpreted state statute which, if applicable, was of questionable constitutionality Leiter Minerals, Inc. v. United States, 352 U.S. 220, 229 [77 S.Ct., 287, 1 L.Ed.2d 267], we have required District Courts, and not merely sanctioned an exercise of their discretionary power, to stay their proceedings pending the submission of the state law question to state determination.” Louisiana Power & Light Co. v. City of Thibodaux, 1959, 360 U.S. 25, 28, 79 S.Ct. 1070, 1072, 3 L.Ed.2d 1058.

There can be no dispute about the presence of a grave and novel Federal constitutional question in the case at bar. Much more than the constitutionality of the Virginia statute is at stake. The issue appellant seeks to have us decide is whether there is a federally-protected right to be free of state-compelled segregation in a privately-owned and operated restaurant, or to put it more narrowly, whether the Fourteenth Amendment has empowered the Congress to provide a civil remedy against private restaurant operators who discriminate by reason of race under compulsion of state law, and whether Congress did provide such a remedy when it passed the statute appellant here invokes, Section 1983 of Title 42. The scrupulous care with which the Supreme Court has recently treated similar questions, see Boynton v. Commonwealth of Virginia, 1960, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206, is a clear warning against the dangers of premature decision. It would be most rash for us to act gratuitously where the claimed rights and privileges of one group of citizens are arrayed against the claimed rights and privileges of other groups. Grave problems of Federal-state relationships are also presented.

While the roots of the abstention principle may lie in the Federal equity jurisdiction, see Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, the Supreme Court has clearly indicated in two recent cases that the application of the abstention doctrine does not depend on whether a complaint has demanded equitable or legal relief. See Louisiana Power & Light Co. v. City of Thibodaux, supra; Clay v. Sun Insurance Office, 1960, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170. That relief at law is demanded here is thus no bar to abstention.

Nor do we deem it material that the potential area of conflict in the instant case lies between the Federal courts and the state acting through its legislature, rather than through its administrative agencies. Certainly where Federal courts run the risk of becoming enmeshed in the functions of state administrative bodies vested with the responsibility for developing and applying a continuing state policy, special reasons for abstaining are present. Burford v. Sun Oil Co., 1943, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; Alabama Public Service Commission v. Southern Ry., 1951, 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002. That is not to say, however, that conflict with a state administrative agency is a sine qua non for the application of the doctrine; and it is clear from the Supreme Court’s decision in Harrison v. N. A. A. C. P., 1959, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed. 2d 1152 that such is not the case. Like Harrison, the case at bar involves potential Federal interference with a state policy of segregation as expressed through its statutes.¹¹ It has been argued that such a policy is not entitled to deference. Mr. Justice Douglas, dissenting in Harrison, points out that jurisdiction there was largely premised on the Civil Rights statutes (among them 42 U.S.C.A. § 1983, the one principally at issue here), and urges that by directing abstention the Supreme Court had failed “to perform the duty expressly enjoined by Congress on the federal judiciary.” 360 U.S. at page 184, 79 S.Ct. at page 1034. The significance of this contention lies in the fact that it was obviously considered and rejected by a majority of the Supreme Court.

For these reasons, and guided by the decision of the Supreme Court in Harrison, supra, we abstain from decision on the merits in this case, pending resolution of the meaning and application of Section 18-327 of the Virginia Code by the courts of that state.

IV.

We do not reach, and hence do not express any view concerning, the questions of law discussed in the dissenting opinion, other than as may appear in the foregoing pages.¹²

The judgment of the District Court will be vacated and the cause remanded. The District Court, of course, is authorized to conduct such further proceedings or take such further action as may be deemed appropriate and not inconsistent with this opinion.

So ordered.

1 . A further contention, relative to alleged activities of state officials, will be discussed later in this opinion.

2 . Act of March 1, 1875, ch. 114, §§ 1, 2, 18 Stat. 335, provides:

“That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

“Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also, for every such offense, be deemed guilty of a misdemean- or, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year: Provided, That all persons may elect to sue for the penalty aforesaid or to proceed under their rights at common law and by State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this proviso shall not apply to criminal proceedings, either under this act or the criminal law of any State: And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.”

3 . A like decision, was reached by the Fourth Circuit in another suit brought by appellant, at an earlier date. Williams v. Howard Johnson’s Restaurant, 1959, 268 F.2d 845.

4 . Sections 1981 and 1983 provide:

“1981. Equal rights under the law.

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” 16 Stat. 144, as amended.

§ 1983. Civil action for deprivation of rights.

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 17 Stat. 13, as amended.

5 . This expression is generally used to sum up the words “under color of any statute, ordinance, regulation, custom, or usage.” As to “custom or usage,” see Williams v. Howard Johnson’s Restaurant, supra note 3, 268 F.2d at page 848.

6 . Recently re-enacted as Section 18.1-356 of the Code. See Va.Code Ann., Supp.1960, at § 18.1-356.

7 . The words “interplay of governmental and private action” are evidently derived from the opinion in N. A. A. C. P. v. Alabama, 1958, 357 U.S. 449, at page 463, 78 S.Ct. 1163, at page 1172, 2 L.Ed.2d 1488. The Court was there speaking of the state’s action in seeking to compel— by statute — disclosure of the names of members of the N.A.A.C.P., which would allegedly be followed by private action in the shape of economic reprisals and “other manifestations of public hostility.” At page 462 of 357 U.S., at page 1172 of 78 S.Ct. Legislative action was the “governmental action” referred to in the N.A.A.C.P. case; the same is true in this case.

8 . This recital is not intended to cast any reflection on appellant, whose desire to obtain equality of treatment for members of his race is entitled to respect, but to illuminate the theory on which the present complaint was brought.

9 . All that appellant has told us in writing on the subject appears at page 9 of his supplemental memorandum in this court, where he says:

“Va.Code sec. 18-327 has been widely regarded as compelling racial segregation in places of public accommodation of all sorts, including restaurants. Such belief was supported by the decisions of the United States District Court for the Eastern District of Virginia (per Judge Albert V. Bryan who has had long experience with Virginia law) that this provision applies to restaurants. See Nash v. Air Terminal Services, 85 F.Supp. 545, 548 (1949); Air Terminal Services v. Rentzel, 81 F.Supp. 611 (1949). This

widespread belief was also fostered by the repeated public expressions over the years by many prosecuting officials of Virginia that racial segregation in eating places was required by Virginia law.1 [1 E. g., Washington Post, June 24, 1960, p. A — 1.] ”

Later, appellant filed with us a number of newspaper clippings in support of the statement last made. Assuming the clippings to be correct reports of various episodes, there is no allegation that they came to appellee’s attention, or influenced its action.

10 . See letter of Hon. Albertis S. Harrison, Jr., Attorney General of Virginia, under date of August 24, 1960, attached as an Appendix hereto.

11 . In Harrison a set of five recently enacted Virginia statutes designed to limit tlie legal representation and lobbying activities of the NAACP in Virginia were challenged. The Association, prior to any test of the applicability of the statutes in the Virginia courts, brought an action to have the Federal District Court declare them unconstitutional and enjoin their enforcement. The three-judge constitutional court, basing its decision on a finding that the legislation had been enacted to nullify the effect of the Supreme Court mandate in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, held three of the statutes unconstitutional on their face, but abstained, staying proceedings ponding construction by the state courts, as to the other two. On direct appeal by Virginia from the invalidation of her barratry and lobbying statutes, the Supreme Court in a six-to-three decision reversed the lower court and directed that these three acts should likewise have been subjected to “the possibility of limiting interpretation” by the Virginia courts.

12 . Some of the practical consequences of the theory of the dissent — that private persons may be sued for acts committed by them under the compulsion of state officials — should perhaps be noted. One of these would appear to be that the courts of the District of Columbia would be called upon to evaluate the conduct of state officials, alleged to have infringed Federal rights, if the plaintiff has succeeded in obtaining proper service here on the person or corporation alleged to have been coerced by such state officials into taking the action complained of. Many chain stores and other great business enterprises, transacting business here and in a number of states, are subject to service of process in this jurisdiction. (Venue problems might exist as to an individual defendant, but hardly as to a corporation doing business bere. See 28 U.S.C. §§ 1391, 1406.) Nor do the possible consequences appear to be limited to the Distinct of Columbia. Apparently the theory of the dissent would permit suit challenging private action on the theory of official compulsion to be brought in any jurisdiction in the country where the private defendant is found, no matter how distant that jurisdiction is from the state whose officials are being attacked. The operation of our Federal system of government might be gravely affected by any such result. Tire spirit of the transfer statute, 28 U.S.C. § 1404 (a), if not its letter, would appear to call for the avoidance of consequences of this sort wherever possible. Any court which is asked to accept the position stated by the dissent will no doubt find it necessary to give careful consideration to the practical and governmental consequences just outlined.