Earl Warren: Number 164, William H. Burton, appellant, versus Wilmington Parking Authority, et al. Mr. Redding?
Louis L. Redding: May it please Your Honors. William H. Burton, a resident of Wilmington, Delaware, has appealed to this Court from a decision of the Supreme Court of Delaware, sanctioning on the authority of a Delaware statute, his exclusion on the ground of race and color from a restaurant, located in a building, owned and operated by a public agency, the Wilmington Parking Authority. The Authority is created in pursuance of a Delaware statute. This statute is set forth in full in the appendix to the appellant's brief. The function of the Authority, as set out in the statute, is to plan, construct, and operate facilities for offstreet parking of automobiles. The Act declares this a public purpose for the benefit of the residents of cities, for the promotion of their health and safety and living conditions. Accordingly, the Act declares that the Authority is a public agency and is vested with the performance of essential governmental functions. Members of the Authority are appointed by the Mayor of the City. The Authority is given the power of eminent domain. Its property is declared exempt from Delaware taxation, and the revenue bonds issued by the Authority are declared exempt from Delaware taxation. The Act provides that municipalities may contribute funds to the Authority for the purchase of land upon which the parking facilities are to be erected. The site in question, located in the City of Wilmington, is an area about 178 feet by 350 feet. It is in the center of downtown Wilmington. Prior to its present use, this site had been owned by several private owners. It was purchased by the Wilmington Parking Authority from funds derived from three sources. Part of the funds, approximately $934,000, was a contribution made by the City of Wilmington. The rest of the funds were derived from the revenue bonds, the proceeds of revenue bonds of the Authority, and from a bank loan made to the Authority on the credit of the Authority. The act under which the Authority is created provides that the Authority may lease portions of the facility for commercial use, if the Authority has made a determination that such leasing is necessary to enable the Authority to carry on its public function. In the record there is the affidavit of the Chairman of the Authority, attesting that such a determination, that is, a determination that leasing Was necessary in order to enable the Authority to function, was made by the Authority.
John M. Harlan II: Leasing for a restaurant?
Louis L. Redding: Leasing for commercial purposes. The statute, sir, provides that the Authority may have power to lease part of the space in the structure for commercial purposes if the Authority has determined that the income from such leasing is necessary to enable the Authority to carry on its public function.
John M. Harlan II: Statute (Inaudible)
Louis L. Redding: The statute does not use the word "private," sir. It simply says "for commercial purposes. One of the areas of space in the facility building was leased to the appellee, Eagle. Eagle is a corporation organized under the General Corporation Law of the State of Delaware, and its lease with the Authority was for a period of twenty years, with an option to renew for ten years. And the lease, which is set forth in the record, provides that this space shall be used for a restaurant, a banquet hall, a cocktail lounge, a bar, and for no other use. The lease also provides, among other terms, that the lessee shall occupy and use the premises in accordance with all applicable laws and rules and regulations of the federal or state or municipal government. The lease is dated April 8th, 1957. There is in the record, however, an affidavit which has not been disputed by appellees that prior to the date of this lease a voluntary citizens group had discussed with the Chairman of the Authority, their interest in having a policy of racial nondiscrimination followed in the restaurant. In August 1958, the appellant Burton was refused food service in the restaurant because of his color. In a class action brought behalf of himself and other Negroes, he filed a suit in Court of Chancery of the State of Delaware against the Authority and the restaurant for a declaratory judgment that the policy racial exclusion practiced by the restaurant was in violation of the restraints of the Equal Protection Clause of the Fourteenth Amendment, and for an injunction to restrain his discriminatory exclusion from the restaurant. The defendants, the Authority and Eagle, filed separate answers. The Authority said, in its answer, that it had no power under its lease or under any federal or state law to control its lessee and the lessee also said that it was not controlled by the Authority. Both of them, both answers, stated that Eagle operated as a private entrepreneur and both of them pleaded the statute which is here in question. They set the statute out in their answers. It is Title 24 of the Delaware Code, Section 1501 and they said in their answers that, on the basis of this statute, they were entitled to exclude the plaintiff, the appellant here. I should like to call Your Honors' attention to this statute which we have set out in full at page three of appellants' brief appendix. It provides that no keeper of an inn, tavern, hotel, or restaurant or other place of public entertainment or refreshment of travelers, guests or customers, shall be obliged by law to furnish entertainment or refreshment to persons whose reception or entertainment by him would be offensive to the major part of his customers and would injure his business. It defines customers as including all who have occasion for entertainment or refreshment. I might say that although both answers pleaded the statute, neither answer contained an averment, a direct averment, that the plaintiff had been found offensive to a major part of the customers, or that the business of the restaurant had been in any way impaired. After filing the answers, the defendants moved for summary judgment. They again pleaded the statute and claimed that under the statute, they had a right to exclude the plaintiff on the ground of color.
Potter Stewart: Mr. Redding, we don't know the –
Louis L. Redding: Yes sir.
Potter Stewart: -- circumstances under which this person was denied the right to do business with the restaurant, except that it was, by stipu -- or conceded, because of his race, is that right?
Louis L. Redding: I was about to come to that point. They did file, both defendants filed sir, motions for summary judgment. There was at that point an unresolved issue of fact. Their answers had not been responsive on the allegation contained in the complaint that he had been refused service because of his race and color. The court, of course, could not decide this matter with that issue of fact remaining unresolved. The appellee, Eagle, then moved to amend its answer, and that answer is contained in the record and in that amendment it admitted that the only reason for refusal of service to the plaintiff here was his race, color, and ancestry. This was spelled out specifically in the amended answer.
Potter Stewart: There was never any -- there was still no allegation within the statutory words, that his --
Louis L. Redding: There was still no alle—
Potter Stewart: -- presence would be offensive to the major part of –
Louis L. Redding: There was still no allegation, sir, of offensive-ness to the major part of the customers of the restaurant, or injury to business.
Potter Stewart: Or any allegation of in fact -- of any disorderly conduct or anything like that?
Louis L. Redding: Nothing of that sort, sir. The only, the only ground upon which his exclusion was defended was the sole ground of ancestry, color, race. After the omission had been repaired by the --
William J. Brennan, Jr.: (Inaudible)
Louis L. Redding: Sir?
William J. Brennan, Jr.: We should take it then that the Delaware courts interpreting this statute as a defense, merely on the ground of color?
Louis L. Redding: That is correct, sir. We were coming to that, sir.
William J. Brennan, Jr.: The case is before us on that interpretation of the statute?
Louis L. Redding: That is correct, sir. That is, in the context in which this matter comes up, this is the only thing that can be inferred. The trial court, after the omission was repaired by the filing of an amended answer, heard arguments in the matter and received briefs, of course, first and after briefs had been filed and oral argument had been had, the trial court requested the plaintiffs' counsel to file a motion for summary judgment. This was done, and two days later the trial court handed down its opinion which is, of course, part of the record, in which it decided that because the rentals constitute a substantial and integral part of the means devised to finance this vital public facility, and those are the words used by the trial court, it was incumbent upon the Authority to make leases which would require the tenant to carry out the Authority's constitutional duty not to deny the Delawareans the equal protection of the laws. The Authority, although -- although the Authority and Eagle defended on the ground of the statute in part, because the vice chancellor felt that there was state action in the operation of this restaurant, he found it unnecessary to consider the statute and he indicated in his opinion that it was unnecessary to consider the validity of the statute. The defendants appealed to the Supreme Court of Delaware, and it was there pointed out in briefs and oral argument that there had been no proof as to the elements of offense, an injury to business. And they took the same position, the Authority there took the position before the Supreme Court which it had taken before the trial court, and that was that they did not need to offer proof that plaintiff, as a Negro, was offensive, that it was a notorious fact that, being a Negro he was offensive and that the court could, in the language of the Authority in its brief, "The court could resort to a judicial shortcut and take judicial notice of the fact that persons of a certain class, meaning Negroes the class to which the plaintiff belonged, "were per se offensive," was the language used in the brief of the Authority. In spite of the absence of any evidence as to offensiveness and injury to business, the Supreme Court validated this interpretation which the Authority insisted upon. It held that Eagle was acting in a purely private capacity and that under the statute it was not required to serve the appellant. Accordingly, the Supreme Court of Delaware reversed the vice chancellor. Now, it is appellant's position that this Court has jurisdiction of this appeal because the Supreme Court of Delaware has construed and applied the statute to authorize appellant's exclusion on the ground of race from this restaurant, and that this application of the statute has been made in spite of the challenge made to the statute on constitutional grounds by the appellant. We'd first like to point out that it's clear that exclusion of appellant as a Negro is not within the express terms of the statute. We think that if it had been, there could be no question, but that this statute would violate equal protection. This, of course, would be in accordance with rules which have been recognized by this Court in a number of cases. I call Your Honors' attention to the expression of the Court in the Hirabayashi case, in which the Court said that distinctions between citizens solely because of ancestry are, by their very nature, odious to a free people whose institutions are founded upon the doctrine of equality. The same type of expression was given by this Court a year later in 1944 in the Korematsu case, in which it was stated that it should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. On the basis of the war emergency with which both the Hirahavashi and the Korematsu cases dealt, and the necessity of protecting the country against sabotage and espionage, the Court did permit racial distinctions to be made with respect to a curfew order and relocation camps in these cases. But the Court specifically said that it would require exceptional circumstances for race to be considered a factor, a constitutional factor, but the racial distinction here does not derive from anything expressly stated in the statute. It comes from the judicial action, this from the meaning the court below read into a statute which on its face is ethnically neutral, silent, and from the effects given the statute as so interpreted.
John M. Harlan II: (Inaudible)
Louis L. Redding: The paragraph next to the last, did you say, sir?
John M. Harlan II: (Inaudible)
Louis L. Redding: It was --
John M. Harlan II: (Inaudible)
Louis L. Redding: Sir, the court said that at common law, apparently the court here meant that at common law a restaurant, in contradistinction to an inn or a tavern, could exclude individuals, or anybody --
John M. Harlan II: Anybody.
Louis L. Redding: But I think -- we think, sir, that this is an entirely different thing from the courts giving sanction to a common law discrimination which is based on the ground of color.
John M. Harlan II: (Inaudible)
Louis L. Redding: That is that the court was --
John M. Harlan II: The common law argument is that the restaurant (Inaudible)
Louis L. Redding: That is correct, sir.
John M. Harlan II: (Inaudible)
Louis L. Redding: Well, it's in the context, sir, in which the case comes up. The reliance of the defendants here was placed on the statute.
John M. Harlan II: (Inaudible)
Louis L. Redding: Well, we think the opinion validates the statute itself, sir. And even if it were a common law principle, we think that the Court could not give effect, against the constitutional objection made to it, to a common law principle which permits discrimination upon the basis of race.
Hugo L. Black: It's now a statute.
Louis L. Redding: It is not –
Hugo L. Black: What was under the common law, permitted by the common law, is now permitted by the statute.
Louis L. Redding: We would say that the common law has simply been superseded completely by the statute. The common law no longer has any force or effect.
Hugo L. Black: Well, was this man excluded, according to the record, because they -- on the basis that they could exclude anybody they wanted to, or did they exclude him because he was colored?
Louis L. Redding: He was excluded, sir, because of his race, not on the --
Hugo L. Black: Was that agreed?
Louis L. Redding: Sir?
Hugo L. Black: Is that agreed between you?
Louis L. Redding: Well, it's set forth in the amended answer filed by Eagle here. Later they argued that they could exclude anybody they wanted to, but in their answer which they filed they stated that the plaintiff was excluded solely upon the basis of race or color.
Hugo L. Black: Suppose they're permitted to (Inaudible) assume inquiry was based on (Inaudible) suppose the law does permit them to exclude anybody they want to.
Louis L. Redding: Yes, sir.
Hugo L. Black: Does that mean that they can constitutionally exclude somebody wholly because of his color?
Louis L. Redding: It is our position that they cannot, sir,
John M. Harlan II: But you don't have to give any reason for (Inaudible)
Louis L. Redding: Well, I would say that they're bound by the reason they have given, and that this gives us a basis to make the constitutional objection we seek to make here.
William J. Brennan, Jr.: But may --
Louis L. Redding: Here they gave a reason.
William J. Brennan, Jr.: Are you relying on this statute alone, or rather the reliance of the defendants on this statute alone, for your state action point?
Louis L. Redding: Oh, no, sir.
William J. Brennan, Jr.: In other words, you're not suggesting that where this a private restaurant, unrelated to the Parking Authority.
Louis L. Redding: Oh, no sir, no sir. Our brief develops both points.
William J. Brennan, Jr.: Well, that's what I supposed.
Louis L. Redding: Yes sir. In other words, we have filed an appeal here because we think that the Court's opinion, even though it may not explicit say so, does give validity, that is the effect of what the court has done here is to give validity to this statute. And –
William J. Brennan, Jr.: You say that in the context of a restaurant in a building built with the public funds.
Louis L. Redding: Well, that's --
William J. Brennan, Jr.: You might make the same argument if we were dealing with a department store where there had been an exclusion from a restaurant and reliance on this statute, but that's not this case.
Louis L. Redding: That is not this case.
Hugo L. Black: Did the Delaware court refer to the case of Derrington against Plummer in the Fifth Circuit?
Louis L. Redding: It did, sir, and sought to distinguish it.
Hugo L. Black: On what basis? There was an exclusion from a restaurant, the court had (Inaudible)
John M. Harlan II: (Inaudible)
Louis L. Redding: Well, it had equipped, yes, it had equipped it for public use, sir, but --
John M. Harlan II: (Inaudible)
Louis L. Redding: That is correct, sir. That is, the leasing here is an essential part of the ability of the public agency to carry on its public function. Without the leasing, the agency could not serve the public purpose that the statute contemplated it should serve.
Byron R. White: (Inaudible)
Louis L. Redding: Well, I think the legislature recognized that such a leasing would be an impermissible one, and it limited the type of leasing in which it might engage to leasing for commercial purposes.
Byron R. White: Well, the purpose for that, the purpose for the lease (Inaudible)
Louis L. Redding: Yes, it's my understanding that the lessee was to use the leased premises for commercial purposes.
Hugo L. Black: Who paid for this parking authority?
Louis L. Redding: Sir?
Hugo L. Black: Who paid for this parking authority?
Louis L. Redding: Who paid for it?
Hugo L. Black: Yes, whose was it?
Louis L. Redding: I already indicated-
Hugo L. Black: What was it, a park?
Louis L. Redding: Sir?
Hugo L. Black: What is the whole thing?
Louis L. Redding: It is a structure.
Hugo L. Black: Just one structure?
Louis L. Redding: A structure which contains about 61 percent of the area which is devoted to the parking of automobiles. About 39 percent of the area is devoted to commercial lessees
Hugo L. Black: Whose money paid for the whole thing?
Louis L. Redding: The entire structure was paid for by public funds
Hugo L. Black: Taxpayers? The City of Wilmington contributed at one time $934,000, at another time $1,822,000. Some of the funds came from proceeds of the sale of revenue bonds, so that the entire financing was derived from public funds.
Hugo L. Black: But suppose this lease fails -- the lessee failed to carry on properly and they lost money, who lost the money, taxpayers or –
Louis L. Redding: Well, insofar, insofar as the lessee was unable to pay the rent, the Authority would lose the money.
William J. Brennan, Jr.: Mr. Redding, are some of these other -- there are other commercial leases, I take it?
Louis L. Redding: Yes, there are, sir.
William J. Brennan, Jr.: What for, (Inaudible) stores and that sort of --
Louis L. Redding: Well, there is a bookstore, a jeweler's retail store. There was a food store, a retail food store.
William J. Brennan, Jr.: Now, let's take the jewelry store. Suppose there had been a refusal to accept the trade of a Negro solely on the ground that he was a Negro. The statute which was relied upon as a defense here, 1501, wouldn't apply, but would you be here on such a case?
Louis L. Redding: I would certainly not. We would not be here talking about the statute.
William J. Brennan, Jr.: You wouldn't be here talking about 1501 because that does not give a defense.
Louis L. Redding: That is correct.
William J. Brennan, Jr.: That would not be a defense.
Louis L. Redding: That would not be an applicable defense for that type of business, but we would be here on the state action aspect of this case.
Potter Stewart: You wouldn't, as a technical matter, be here on an appeal.
Louis L. Redding: We would be here on --
Potter Stewart: You would hope to –
Louis L. Redding: -- an application certiorari and we have asked of this Court, if this Court considers that appeal does not lie, that the matter —
Potter Stewart: I just said it as a clarification.
Louis L. Redding: -- should be considered on certiorari.
Felix Frankfurter: The position you were urging here, you would urge if somebody went into the bookstore --
Louis L. Redding: I would, sir.
Felix Frankfurter: -- and wanted to get Mr. Caton's 'The History of the Civil War' or whatever it is, and they said, thank you very much. You're a nice man, but your color is black, or your religion is Catholic or Jewish or you're agnostic. Wouldn't you be here?
Louis L. Redding: We would be here, sir, but the statute would not be involved.
Felix Frankfurter: Alright. I know, but the constitutional proposition you're urging --
Louis L. Redding: It is the same.
Felix Frankfurter: -- is that this is, this has, as it were, a constitutional public easement which gives every American citizen who hasn't something against him the right of access and the right of participating in what they offer.
Louis L. Redding: That is correct.
Felix Frankfurter: Isn't that it? Isn't that your position?
Louis L. Redding: That is-well, that's part of our position. The rest of our position is that this Court having, the Delaware Supreme Court having construed this statute to authorize the exclusion of this plaintiff on the ground of his color, also entitles us to be here.
Felix Frankfurter: The statute falls.
Louis L. Redding: Yes, sir.
Felix Frankfurter: Because of the construction placed upon it by the Delaware Supreme Court, but the claim is that the vice is that this is an unconstitutional discrimination.
Louis L. Redding: That is correct, sir.
Felix Frankfurter: It doesn't make any difference whether it's a restaurant or an inn or a bookshop or whatnot.
Louis L. Redding: That is our position, sir. I had – I had intended Your Honors to point out that even if the statute on its face were valid, that is, if it did -- could validly permit the exclusion of persons who were offensive to the major part the customers, that this type of test would have to be employed by the business here. Instead of employing the test here, the court indulged in a presumption and we say that this, the fact presumed has absolutely no relationship to the fact proved. The only thing proved here was that the plaintiff was a Negro. There is no rational connection between his being a Negro and his being offensive. We might also say that his offensiveness could not have been proven under the statute if the court had relied upon evidence which is in the record. In the record, there are affidavits which were introduced on behalf of the plaintiff showing that similar places in Wilmington community do not exclude persons on the ground of color. The Delaware Supreme Court here in reversing the chancellor held that there was no state action, that there was only private action which was immune from the Fourteenth Amendment and this opinion is founded on three grounds. We'd like to examine each of these grounds. First the court said that the establishment of a restaurant in his facility was a happenstance, and that the restaurant was not intended as a service to the public using the parking facility that the only interest of the Authority was in obtaining income from rent. The answer to that seems to be that there is no evidence one way or another as to whether or not the location of the restaurant in the Authority was a happenstance. This matter was decided on summary judgment and there was no evidence as to how the restaurant, rather than something else, happened to be located there. But we say that, more important than this ground that the Supreme Court used, was the interest of the Authority in obtaining rental income. And this interest was completely coextensive with the interest of the Authority in performing its public function, that it could not have performed its public function if there had not been this rental income.
Felix Frankfurter: The result may be the same, but there is a distinction argumentatively or in reasoning, between a restaurant as a facility for those who park, which the State itself is furnishing, namely facilities for parking, the State didn't regard, didn't deem a restaurant for its parkees or its customers, in making this lease, it made this lease in order to get money, not to furnish food, isn't that correct?
Louis L. Redding: We don't know, sir. As I say, this matter was decided on summary judgment. Had the matter gone to trial, we would have had an opportunity to find out exactly --
Felix Frankfurter: But if that were decisive, Mr. Redding, if that were a decisive difference, and I'm not saying it is or it isn't or it is, then if your court didn't find or put the burden on you of showing the contrary, that would be a kind of a local question that we wouldn't be reviewing here, I should think.
Louis L. Redding: Yes, I see –
Felix Frankfurter: So I think you have to go farther and say, as you do say, that it doesn't make any difference whether the lease was for money or the lease was to supply food, as it was suggested in the Boynton case, and that the food was part of service for which it was in business. What you're saying is that it's leasing in order to have money to carry out its public function, and therefore the State is entangled in it.
Louis L. Redding: That is correct.
Hugo L. Black: Are there any restaurants in your public parks run by concessionaires?
Louis L. Redding: I am not aware that there are, sir. I might say that the public parks, as they are operated, do not follow a policy of racial discrimination. Our position here, sir, is that, as I have said, this Court has interpreted a statute to permit the exclusion of the plaintiff here on the ground of race; and this, we think, is in violation of the Equal Protection Clause of the Fourteenth Amendment. In addition to that, we say that the identity between the lessee and the lessor here is so close that the restraints of the Constitution should apply not only to the lessor -- to the lessee, just as they do to the lessor. For these reasons we think that the opinion below should be reversed.
Earl Warren: Mr. Solicitor General?
Archibald Cox: May it please the Court? The United States filed a brief, and has obtained leave to participate in the oral argument in this case on the merits, because it involves the constitutional rights of a large number of citizens, and also because of the interest of the United States as a major property owner.
William O. Douglas: Is there a brief beyond this memorandum?
Archibald Cox: No, that's the only one, Mr. Justice.
William O. Douglas: That's the only one.
Archibald Cox: Yes. Our position is that, whatever may be the rule with respect to discrimination by a private enterprise upon privately owned property, the denial of equal protection upon racial grounds in a restaurant otherwise open to the general public on state-owned property, indeed in a state building, under the circumstances of this case, results in unconstitutional discrimination violating the Fourteenth Amendment. I think I should say that my argument would be the same even if the statute were not in the case, perhaps somewhat unlike Mr. Redding and it seems to me that although I do not think that we ought to take part in a discussion of whether appeal is a proper remedy, in all candor it seems to me that to entertain my argument, the Court would probably have to grant the request that the appeal be treated as a request for certiorari under 28 U.S. Code 1257.
William J. Brennan, Jr.: Well, 1 gather, Mr. Solicitor General, this would be your argument if we were dealing here with a jewelry store or the --
Archibald Cox: Well, I will distinguish a little later between a -- I suggest a possible distinction between a jewelry store and a restaurant which is open to the public except for this racial discrimination, but except for that point, which I will develop a little later, what you say is quite right. The Wilmington Parking Authority is admittedly a state agency. It's also common ground, as I read the opinion below and the briefs in this case, that if the Authority operated the Eagle Coffee Shop on these premises, any discrimination based upon race or color would violate petitioner's constitutional rights. Consequently, the only question here is whether the guarantees of the Fourteenth Amendment are nullified or perhaps I should say "dropped out of the case" because the State has leased the restaurant to a private enterprise rather than operating it directly.
Felix Frankfurter: The Delaware court makes a still nicer distinction between not merely a state-operated facility, but a facility leased but as part of the operation, as it were, the totality. In other words, the cafeteria in this building, which is open for lawyers who have business before the Court, is deemed to be a facility in connection with this Court.
Archibald Cox: I would put the, what I understand to be the holding of the state court, just a little bit differently, although I believe you're getting at the same point that I'm about to make. As I understand the court below and the respondents' argument, they say first, that Eagle is not a state agent and second, that Eagle is not performing a state function. That is to say, that the State had no particular interest, so far as the evidence shows, one way or the other in whether there was a restaurant there. Whereas I take it that the government does have some interest in its public building in there being eating facilities and equally has some interest in this Court.
Felix Frankfurter: I had in mind the way they distinguished the Derrington case, a restaurant in a courthouse.
Archibald Cox: Yes. I would say that it's a state function, using it in a broad sense, not in the sense of a governmental power.
Charles E. Whittaker: Mr. Solicitor, do I understand you to contend here that the Authority leased a restaurant or did it merely lease space in a building?
Archibald Cox: It leased space in a building, to a restauranteur and I meant to refer to the space, rather than to the restaurant company. No, there was no interest. I think we must concede, on the State's part in having a restaurant and we do concede, first, that this was a private enterprise, and second, that the State had no particular interest in there being eating facilities. Nevertheless, conceding that much, we think that the conclusion that the state courts drew does not follow. In our opinion the Parking Authority was still sufficiently involved to say that the discrimination was the result of state action within the meaning of the Fourteenth Amendment. Later in my argument I will detail the points of contact or involvement, beginning particularly with the fact that this was a State owned building. It's enough I think, for present purposes to say that the cumulative effect of those points of contact or participation can best be summarized by saying that the State is operating this building, in the words of the Delaware Supreme Court in an earlier case, "as a single self-sustaining governmental unit." In other words, it's bound together and it's suffused by a governmental character and it is doing that without according its citizens equality of treatment. I would like first to say a few words about the general standard of state action or state participation. When the framers of the Fourteenth Amendment declared that no state shall deprive any person of life, liberty, or property without due process of law, and that no state should deny the equal protection of the laws, they prescribed every form and degree of state activity. Legislative, judicial, or executive action may, of course, all violate the Fourteenth Amendment. Even the action of state officials acting outside the scope of their authority may violate the Fourteenth Amendment. If discrimination occurs in the management of property or the performance of either proprietary or governmental functions, in the old phrase, again, the Fourteenth Amendment is called into play. As this Court said in the Arkansas school case, Cooper and Aaron, for the purposes of applying the Fourteenth Amendment to public education, there is state action where there is state participation through any arrangement, management, funds, or property. There are two further points I would like to make with reference to the test of state participation. One I think really goes to the root of this case. It's particularly important to note that state action and private action leading to racial discrimination should not be viewed as if they were mutually exclusive causes, and that either one or the other must be responsible, but not both. Quite the contrary I think is true, and this is well illustrated by the present case. Here plainly there is discrimination by a private person, the restaurant and we don't contend that that is the action of a state agency, but the fact that the action of the restaurant is one cause of the wrong does not exculpate the State if the State's activities are also a substantial contributing factor. The Court's decisions make it abundantly clear that the Fourteenth Amendment is brought into play when the discrimination results, as it does here we think, from a concurrence of state and private activities. And the other point that I would want to emphasize in this connection is that it is not necessary that the decision to discriminate, the decision to discriminate be made by the State. Shelley and Kraemer seems to me to illustrate both those points. The racial covenants were in private contracts. The discrimination resulted from a concurrence of the private contract and the state action. In the Girard Trust case --
William O. Douglas: But the state action there was the court's--
Archibald Cox: There it was court action.
William O. Douglas: Court action!
Archibald Cox: But I think -- I suggest that the point still is that it took the concurrence of two and so that this goes back to my earlier point that private action and state action what may be concurrent causes and the State still responsible. And in the Girard Trust Company, the initiation of this discrimination came from the will of Stephen Girard and the State, the City indeed, acted in scarcely more than a ministerial capacity. In both cases the Fourteenth Amendment was applied, despite the concurrence of the two forms of action. In other words, we think that state action implies no particular formula. If the wrong is done solely by one private citizen to another then of course under the Civil Rights Cases the Fourteenth Amendment does not come into play. On the other hand if the activities or authority of the State cause or contribute to the unjust discrimination, even though they're not the sole cause, then it seems to us that the Fourteenth Amendment is violated In other words, the question is one of judgment and degree and the standard is a pragmatic one. I come now to the elements of state participation in this particular case. The first and major element of state participation is its ownership of the property on which the discrimination occurred. This was property held by the Authority for the benefit of all the people of Delaware equally. Yet it's used, in both a literal and a legal sense, as the very foundation of unequal treatment. If the Fourteenth Amendment means anything at all, surely it means that all citizens shall stand alike in their relation to their government, regardless of race or color. When the petitioners went on o property held by their government for public purposes, open to the general public, they were denied equal treatment solely because they were Negroes. No one looking at the problem with any human understanding, I submit, could take the view that they stood before the State of Delaware, in this building owned by the State of Delaware, on an equal plane with all other citizens. And I think it is also fair to say that the feelings of a sensitive man discriminated against in this fashion in this restaurant would be quite different from the feelings of a man in a private restaurant on property which is entirely privately owned. He could not, in other words, escape the fact that here he was in a relation to his government, and yet was denied the equality of treatment. The second significant point of state contact in my judgment is that these premises are physically an integral part of a building, the greater part of which is currently occupied by the State for public purposes.
Earl Warren: We'll recess now.


Warren E. Burger: We'll hear arguments Next in 72-1035, Rogers against Loether. We'll wait for the two months to die down, Mr. Greenberg. I think you may proceed whenever you are ready, Mr. Greenberg.
Jack Greenberg: Mr. Chief Justice and may it please the Court. This case is here on petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit. What is involved is the effectiveness of Title 8 of the Civil Rights Act of 1968 which assures fair housing to all Americans without regard to race, color, national origin, or religion. The effectiveness of the Act is threatened in this case by a claim that the Seventh Amendment to the United States Constitution prohibits Congress from providing that civil actions under the Act be tried by the court and not by a jury. We submit that the court trial and remedy provisions of Title 8 are constitutional as within the power of Congress granted by Section 2 of the Thirteenth Amendment and Section 5 of the Fourteenth Amendment, and the Seventh Amendment preserving jury trials in suits that common law is not applicable to litigation under Title 8. Briefly, the facts of the case or that petitioner who was Black, while a patient in a hospital in November 1969, asked a White friend to find an apartment for her. The friend found an apartment owned by respondents and it appeared that a lease would be, or perhaps even was, consummated with respondents’ agent. But when it was discovered that the petitioner was Black, they refused to go through with the deal. The District Court found, and it is supported in the record, that petitioner was denied the apartment because of her race. The court entered a temporary restraining order on November 17, 1969 ordering respondents not to rent the apartment to anyone else pending resolution of the dispute and then did a preliminary injunction on December 19 to the same general effect. And the court urged both parties to try to settle the dispute, but this turned out to be impossible and efforts to conciliate went on over a period of six months. And more than six months after the action had commenced, petitioner could no longer wait for the case to be concluded and took another apartment. Her counsel withdrew the application for an order directing that the apartment be rented to her though went on with other aspects of the case and asked for punitive damages, costs, and counsel fees. Following trial, the court made an award of $250 in punitive damages but denied counsel fees and costs. Weighing on the one hand the importance of petitioner’s rights and, on the other hand, the fact that the respondent had been denied rent for the apartment during the period the case was before the court. The respondents urged in the District Court that the case should have been heard by a jury, but the District Court rejected this contention. Respondents renewed this claim in the Seventh Circuit and the Court of Appeals agreed. We submit that this decision of the Court of Appeals is wrong, that it will seriously impair the effectiveness of Title VIII. That it involves a misreading of the plain unequivocal language of Title VIII and of the intention of Congress in enacting the Fair Housing Act under the Thirteenth and Fourteenth Amendments and is wrong concerning the requirements of the Seventh Amendment. At this point of the litigation, there no longer seems to be any serious dispute between the parties concerning the language of Title VIII. Respondents in their brief offer at best a cursory argument that the statute is unclear and put to this Court as the only question presented whether the Seventh Amendment requires jury trials in Title VIII cases. In resolving the issues before the Court, we submit that we should first look at the statutory language. The provisions which we are construing, Section 812 (c), provides that “the ourt” shall grant relief and it uses the word “court” in that subsection as well as elsewhere in the statute in a variety of ways which can only mean “judge” and “judge acting without a jury.” For example, the statute speaks of the court granting permanent or temporary injunctions or temporary restraining orders and of awarding costs.
Warren E. Burger: So, how does that help you very much, Mr. Greenberg, when it's -- of course the jury doesn't engage in granting injunctions ever? Is it?
Jack Greenberg: Well, it helps me a great deal because the word “court,” we submit, is used consistently throughout the statute. And if the word “court” is used in connection with injunctions and counsel fees and continuances and conciliation and in several other contexts, we submit that within a single section the word “court,” whenever it refers to damages, means the same as the word “court” in all those other connections. We submit the word had to have been used consistently. Indeed, the word “court” not only in this statute but throughout the entire Federal Code and the Federal Rules of Civil Procedure, as we set forth in our brief, consistently invariably means court and judge acting without a jury. When the Congress intends to use the term “jury,” it knows how to do so and we set forth in our brief the citation of a large number of statutes in which Congress said that certain issues that it would be drive by a jury and not by the court. And, indeed, in this record --
Warren E. Burger: Do you need to -- do you need to rest on that so firmly, Mr. Greenberg? Isn't it a more important to question whether this is or is not a common law action?
Jack Greenberg: Well, that is the next question.
Warren E. Burger: I don't mean to disrupt the order of your argument but then you just do it in your own time.
Jack Greenberg: Well, the first point in our argument that this is (Inaudible), that this is mode of procedure which has been prescribed by Congress. And that the prescription by Congress of this mode of procedure under the Thirteenth and Fourteenth Amendment is entitled to great weight indeed, as even controlling in this case. And I first wanted to make absolutely unequivocally clear that this indeed, is what Congress has done.
William J. Brennan, Jr.: Well, let us see, Mr. Greenberg. That's to argue, I gather.
Jack Greenberg: I did not hear you.
William J. Brennan, Jr.: That's to argue, I gather, that this statute should be read as if Congress had said and these cases shall be tried by a judge without a jury.
Jack Greenberg: Yes.
William J. Brennan, Jr.: And not even if this made -- is a common law action, even if it is, that since that provision that was enacted by the Congress under Section 2 of the Thirteenth Amendment, as you suggest, the Five or the Fourteenth Amendment then necessarily that overrides any requirement of the Seventh Amendment for a jury trial.
Jack Greenberg: I'm not quite certain I would carry that -- my argument that far and I don't have to carry my argument that far because our next point is that this is not a common law action --
William J. Brennan, Jr.: I know, but suppose --
Jack Greenberg: It'd never be a common law --
William J. Brennan, Jr.: Suppose it is.
Jack Greenberg: Well, if it is a common law action, I think we would have a much more difficult case and we would have to then look at the --
William J. Brennan, Jr.: You would not argue, in that instance, if it is a common law action that the authority of the Congress under Sections 2 of the Thirteenth and 5 of the Fourteenth can override even the Seventh Amendment?
Jack Greenberg: I'm not certain that I would, Mr. Justice Brennan, but I certainly don't have to in this case. I would look at -- whether the -- I would look at the equitable quality of the action of what the role of the jury would be, how difficult it is for the jury to decide the case, and so forth.
William H. Rehnquist: Mr. Greenberg --
Jack Greenberg: I might argue it, but I certainly do not have to and I am not going to.
William H. Rehnquist: Mr. Greenberg, supposing that Congress had acted -- enacted the statute, the Housing Act, pursuant to its authority under the commerce power rather than its authority under the Thirteenth and Fourteenth Amendment. Would that at all weaken or strengthen your jury trial argument?
Jack Greenberg: Well, in fact, I think probably the commerce block -- power was invoked and the statute does in part rest upon it. In fact, I'm certain the statute does in part, rest upon the commerce power. But it rests upon a specific constitutional directives to implement two particulars of amendments regarding a very important factor in American life to which the Congress is directing itself. The commerce power is more diffused by but I would say the commerce power would be adequate and it has involved it. Just going beyond my effort to establish that they made court and court acting without a jury, the Fair Housing Act originally was a part of a 1966 Civil Rights Bill. And in that Act -- in that Bill, there was the Fair Housing Act and there was the Jury Selection Act -- jury Selection Bill which later became the Jury Selection Act of 1968. In that single piece of legislation, Congress used the word “court” and “jury” in juxtaposition dealing with jury selection, and then used the word “court” in dealing with Fair Housing. It'd be quite strange whether in a single piece of legislation, which later they -- then was enact -- two parts of which were enacted two weeks apart in 1968 with terms given to it used differently. But I will go beyond that part of the argument. I will submit that the Congress meant court and it meant court acting without a jury.
Warren E. Burger: If it -- if Mr. Greenberg, it is a common law action. Assume that hypothetically for the moment. Could Congress deny a jury trial?
Jack Greenberg: I would say it would be very difficult. One would then have to look at some of the other attributes of the action and see whether or not, for example as mentioned in the footnote against Ross versus Bernhard, this is an action in which juries might have particular difficulty in coming to a decision or whether as in the Katchen case for example, whether there was some need for particular expedition in the action and so forth. But, we do not have any of that here. In fact, this case -- in -- the only cases that we're aware of, in fact, in which Congress had -- in which this Court has passed upon the power of Congress to require enforcement of statutes which it had enacted by court sitting without juries are NLRB against Jones and Laughlin Steel, and Katchen against Landy. In NLRB against Jones and Laughlin Steel, this court held that backpay and other monetary awards might be made by the NLRB and enforced by the Court of Appeals without intervention by a jury because the right involved did not exist at common law. In Katchen, the Court held that adjudication of the validity of a preference in summary proceedings under the Bankruptcy Act also might be made sitting by a Court without a jury and the decision in that case, as I understand it, rested upon the fact that Congress determ -- had determined the need for speed and efficiency in the essentially equitable nature of bankruptcy. This case is like NLRB against Jones and Laughlin, and Katchen v. Landy in that we have a congressional determination that the case shall be heard by the court and not by a jury. It is further like the NLRB and Jones and Laughlin case in that it involves a new congressionally created right. And, it's like Katchen in that there is a special need for speed and effectiveness of relief which would be impaired by jury trial. The Seventh Amendment is applicable only to suits at common law. This is not a suit at common law. Neither in 1791 nor for a century-and-a half thereafter could a plaintiff such as petitioner have brought an action in England or in any state of the Union to compel a landlord not to discriminate against her in the basis of race. Indeed, throughout most of this period, the common law set the full force of its power against people like petitioners and behind landlords and sellers of real property who discriminated on the basis of race. Now, against this congressional decision and the fact that the cause of action enforced in this case was unknown at common law respondent cites the three cases, and the Court of Appeals does to, of Beacon Theatres, Dairy Queen, and Ross against Bernhard. But these cases first did not involve congressional statutes. They involved mixed, legal, and equitable claims concerning which some judicial rule was necessary as to whether the Court should heard be -- whether the case should be heard by a judge or a jury without regard to the adventitiousness of who first commenced the action or what it was characterized as. In Beacon, if the defendant had filed before the plaintiff, the jury clearly would have been required. In Dairy Cream -- Queen, if the form of action had been characterized as one for damages rather than accounting, a jury trial would have not been disputed. In Ross against Bernhard, if the corporation itself had brought the action instead of the action being brought on the form of stockholders derivative suit, there would've been no question that a jury would have been appropriate. We submit that while there is Seventh Amendment language in these decisions, all they really stand for is that the substance of the action and not the form are determinative of whether the case should be heard by the court alone or with the jury. The statutory right claimed by petitioner in this case is one which never could have been enforced at common law at any time, in any place, in any way. Moreover --
Byron R. White: Well, that's true of our great any statutory right, I suppose.
Jack Greenberg: Yes.
Byron R. White: And a -- still a jury trials are required constitutionally.
Jack Greenberg: Well, it may be that there is some analogy or there is a statutory counterpart of some sort of a common law right. But this is something which even today, apart from the fact of race, there is no such right as this. If a would-be buyer goes to a seller and the seller says, “I just do not want to sell to you,” there is nothing anyone can do about it unless he says “I do not want to sell to you because of your race.”
Byron R. White: You do not think this is an action sounding in the tort and is an action for damages? Aren't those two things enough to trigger doing --
Jack Greenberg: No, I think it's a whole new kind of right which indeed was enacted after a very considerable congressional struggle in which the debate was that this is overturning rights of sellers and owners unknown to the common -- as known by the common law. But in any event, Mr. Justice White, if one were to apply the Seventh Amendment to this case, it would be because there is to be -- there is some analogical extension of some sort of a common law right which it is held ought to be protected or enforced by means of the Seventh Amendment. On the other hand, as compeer to that analogical extension, we have the direct decision of Congress that the rights secured by the Thirteenth and Fourteenth Amendments are best enforced by trials conducted in this kind of way because they're more expeditious. It removes community prejudice from the proceedings and so forth.
William J. Brennan, Jr.: That's why I [Laughter Attempt] I really don't understand why you are so hesitant about urging on this that, if this -- to the extent the statute rests on Thirteenth and Fourteenth Amendments, that the Congressional power under Sections 2 and 5 respectively can even go so far as to overwrite.
Jack Greenberg: Well, I will say it certainly goes so far as to overwrite any common law right that is extended by -- that is created by analogic extension and that's all I have to say.
Byron R. White: But then you would -- if you agreed with the -- with Justice Brennan, you would probably have to agree then that if Congress purported to be exercising its commerce power, no jury trials in any of those actions either.
Jack Greenberg: Well, I think --
Byron R. White: What about an action on a collective bargaining contract? Is that a jury trial?
Jack Greenberg: Well, if the NLRB is involved, it certainly isn't.
William J. Brennan, Jr.: No, this is an -- in the COurt --
Jack Greenberg: Well, it's a contract. It's a cause of action for breach of contract or for to enforce a contract.
William J. Brennan, Jr.: Which are the (Voice Overlap) Labor Act is adapted strictly in pursuit of the commerce power.
Jack Greenberg: Yes, but it is a common law right.
William J. Brennan, Jr.: This is on (Voice Overlap) -- Let's assume Congress said it is a statutory right to pursue the Congress -- the commerce power. Congress says no jury trials and suits on collective bargaining contract.
Jack Greenberg: Well, the Commerce Clause is a clause which gives the Congress power to enact legislation in any variety of directions. Under the Commerce Clause the Congress can enforce or refuse to enforce or deal in an infinite number of ways with the collective bargaining contract. The Thirteenth and Fourteenth Amendments express very positive policies concerning racial equality which Congress is implementing so it's a rather different thing. One is enforcing the policies of the amendments. The other is merely acting under authority granted by the Commerce Clause. I think it's a rather different situation.
William H. Rehnquist: But both are grants of power to the Congress. Would you say that Congress in enforcing authority under the Fourteenth and Fifteenth Amendment, could say that the privilege against self-incrimination shall have no application in this case?
Jack Greenberg: No.
William H. Rehnquist: Well then why is the privilege against self-incrimination more important than the Seventh Amendment trial by jury?
Jack Greenberg: Because -- well, first of all, I want to make clear that we are in no way challenging it.
William J. Brennan, Jr.: Maybe perhaps (Inaudible) since you're not making any (Inaudible). [Laughter]
Jack Greenberg: Pardon me?
William J. Brennan, Jr.: That you don't rather not make.
William H. Rehnquist: Maybe Justice Brennan and I should just argue back and forth and -- [Laughter]
Jack Greenberg: I would like to make clear that we are in no way in this case questioning the right of trial by jury. In criminal cases, we are no way in this case questioning the right of trial by jury in what might -- one one might call fundamental common law cases or their modern counterparts or reasonable analogies thereto. With regard to the last series of questions, I would say that, to the extent that one would seek to find some analogy in the common law to what is done in the Fair Housing Act and thereby advanced the constitutional policies of the Seventh Amendment. One must put that as against the very positive policies of the Thirteenth and Fouteenth Amendment which are quite different I would submit, Mr.--
William H. Rehnquist: Why are they more positive than the Commerce Clause?
Jack Greenberg: They're entirely more than -- they're entirely different than the Commerce Clause. The Commerce Clause is a power to enact legislation in a total varie -- under the Commerce Clause, presumably back to the Thirteenth and Fourteenth Amendments, one might be able to enact the statute saying that Whites do not have to sell to Blacks.
William H. Rehnquist: Well, that -- that's broader admittedly but you give an impression that there's some sort of depth or thrust to the THirteenth and Fouteenth Amendment authorities, that there isn't to the commerce at all.
Jack Greenberg: Oh! I think, without a doubt, there is.
William J. Brennan, Jr.: Well, an don't you -- I suppose it's also true, Mr. Greenberg, isn't it that the Thirteenth and Fourteenth Amendments came after the adaption of the Seventh?
Jack Greenberg: Well, I think--
William J. Brennan, Jr.: The Commerce Clause preceded the adaption of the Seventh.
Jack Greenberg: Well, I think if I started down that line I might prove a little too much.
William J. Brennan, Jr.: You might.
Jack Greenberg: And in summary, all we say is that where Congress is enforcing the cherished values of the Thirteenth and Fourteenth Amendments by proceedings unknown to the common law and decides that the cause shall be determined by the court and not by a jury, the Seventh Amendment does not require trial by jury. And, I would like to reserve the balance of my time.
Warren E. Burger: Mr. Scott.
Robert Scott: Mr. Chief Justice and may it please the Court. It is my honor to represent in this action the respondents who seek to have the unanimous decision of the Seventh Circuit affirmed and this case returned to the Eastern District of Wisconsin for trial by jury. When I argued this appeal before the Seventh Circuit in Chicago in February 1972 most of the questions that came to me from the bench, at least at the start of the oral arguments, related to what the actual posture of this case was before the trial court. Now I think my Brother in giving you the general outline of what the facts of this case are, overlooked a very important factual aspect of the case which was at issue in those oral arguments and which the Seventh Circuit drew concession from the appellee at that level. First of all, this was a case, Justice White, for damages on the basis of a civil wrong. It was a tort action. There are analogs in the common law which the Seventh Circuit discovered. The important thing which the Seventh Circuit seek to -- sought to find out about this case when it was in tried is what issues were before the trial court when the availability or non-availability of a jury became critical. And those issues before the trial court on the day of trial, October 26, 1970, were simply the issues of discrimination and the issue of money damages, compensatory damages, and punitive damages. And this is most clearly brought out, I think, on page 47 (a) of the appendix where the trial court, when it was summing up after all the trial, summed up the evidence and said, “Therefore, the only issue remaining for this hearing today, the final hearing on the question of discrimination and the claim for compensatory and punitive damages.” The issue of discrimination and the issue of damages or what was before the court and I listen very carefully when my Brother and opened to see if there would be any discussion of the fact that this was after all just an action for damages albeit a statutory cause of action. And I think there is ample authority in the brief which I have cited. To the effect that there is no cleavage with respect to the application of the Seventh Amendment between cases which are brought on statutory actions and cases which are common law in their origin. There are two main areas of legal dispute in this case. One is a statutory argument which my Brother first got into in which depends on how you read the statute.
Warren E. Burger: Well, going to the Seventh Amendment itself, what do you think the Seventh Amendment means when it says, “In all common law action,” if that's the language I think it is, “in all common law action”?
Robert Scott: It means that in all actions in which under a three-test which this court approved of in a recent case, Ross versus Bernhard, footnote 10 to that case, there are three ways you decide what the Seventh Amendment means in any given circumstances on which the case is brought. First of all, you look at the premerger custom with respect to the issue. Second of all, you look at the remedy requested. And thirdly, you determine what the practical abilities and limitations of jurors are with respect to the issues that are going to be tried. Now, Ross versus Bernhard was decided while our case was pending before the District Court before it ever got up to the Seventh Circuit. And I cited Ross versus Bernhard at the time of oral arguments on the jury issue before the District Court. When the Seventh Circuit decided this case, it tracked, if you will, the three standards in Ross versus Bernhard and I would like to track them again with you so that we can see how the Seventh Amendment does apply to this particular cause of action. Bearing in mind how that action was postured when it reached the time in the course of its litigation when the availability of a jury became important. And are --  I mentioned that I just parenthetically because this case started out of course with claims for injunctive relief and it is part of the argument by the petitioner in this case that the granting of Seventh Amendment rights to this case, in this type of case, would emasculate the statute because then you couldn't have the speedy relief that's necessary to handle discrimination in housing. This case is an excellent example of how speedy relief is available consistent with the Seventh Amendment and the reason is, all of the speedy type of relief, the injunctive relief, had been granted in this case well before the availability of a jury became important. It was decided, as just, as Chief Justice Burger suggested, by the court. Injunctions were granted. But to move to the test in Ross versus Berhnahrd and how they apply to our circumstances, the first two tests are the premerger custom in the nature of the relief granted. To my way of thinking, these two tests really embodied the traditional historical analytic approach that this Court has adapted in its cases -- in all of its cases determining the applicability of the Seventh Amendment. There are two ways of applying the first test, namely, the premerger custom. One is the literal approach which my Brother -- and suggests. In other words, you'll look at the common laws that existed in 1791 in England and if this type of cause of action did not exist by that name at that time, then you have no Seventh Amendment right. There is another approach and that is the approach suggested by Justice Story in Parsons versus Bedford, and that case which was cited with approval in Ross versus Bernhard. Justice Story said that the Seventh Amendment, the preservative power of the Seventh Amendment reaches all lawsuits except those which are of equity or admiralty jurisdiction. In other words, you look at the dichotomy which existed in England between the law and equity and you decide not necessarily whether this particular statutory cause of action existed by this name at that time, but really what jurisdiction would a cause of action such as this--
Speaker: Is that case where McClain dissented?
Robert Scott: That's right. Justice Field, as I recall, wrote the opinion.
Speaker: Story.
Robert Scott: Story, that's right, but I think you are right about the dissent. In other words, if you apply Story’s analysis, you go beyond the literal approach to determine what the nature of this cause of action is. And again, when it was tried it was an action for damages, compensatory and punitive on the basis of a civil wrong. Our argument and the argument adapted by the Seventh Circuit was that that particular type of cause of action would certainly have belonged in the law side in England in 1791. Go on to the next test which is probably the easiest of the three. The relief grant -- requested in this particular case. The relief, the only relief which was tried was money damages, compensatory and punitive.
William J. Brennan, Jr.: But as filed? The original complaint seek injunctive relief initially?
Robert Scott: That's right. I'll clarify that because I wanted to do that the very start and that is one of the questions that the Seventh Circuit went at us with. When this complaint was filed, it did not have a request for compensatory damages that are -- At the first pretrial conference, they interjected that they would like to include a claim for actual damages. By that time, as my recollection serves me, District Judge Reynolds had already granted his injunctive relief. So after the -- at the first pretrial conference, this came up and when I was explaining this to the Seventh Circuit, District Judge Candle said, “Well, it can be brought up under Rule 16 in that fashion, can it?” and I said “well, that is exactly how it did occur.” And, in the next pretrial order that issued out from that conference the District Judge directed that the trial would be on the issue of actual damages and discrimination, and this was formalized --
William J. Brennan, Jr.: Through a formal amendment to the complaint?
Robert Scott: There was never a formal amendment to the complaint.
William J. Brennan, Jr.: Just a Rule 16. We'll resume there at 10:00 tomorrow morning.
Robert Scott: Thank you.