John Marshall Harlan II

“ 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. ”

“ 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 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, [23] 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 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 [10] and its predecessor statute. [11] 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. ”

“ 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 [28] and other times dependent, either wholly or partially, upon state law. ”

“ Should the Secretary's efforts prove unavailing, the complainant can go to court. [16] 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, [17] which expressly provides for a wide variety of relief, including restraining orders, injunctions, compensatory damages, and punitive damages up to $1,000. [18] 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. ”

“ 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. ”

“ Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) , upon which the majority appears to place heavy reliance, gives no guidance as to the extent a state court is obliged to allow a white person to recover affirmatively either damages or other relief after he has transferred a real estate interest to a Negro. In Barrows the Court held that damages could not be awarded against a white defendant sued for breach of a recially restrictive covenant.↑ See J. I. Case Co. ”

“ 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. ”

“ 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. ”

“ Crouch, 175 Va. 126, 7 S.E.2d 115 (1940) .↑ It can be seen from the passage quoted by the majority, see ante, at 232-233, that Bacigalupo interpreted the rule as requiring that (1) opposing counsel must have a reasonable opportunity to examine the transcript after he receives notice; and (2) based on this examination, opposing counsel must have a reasonable opportunity to make any objections he has to the accuracy of the transcript before the transcript is signed by the trial judge. ”