RESPONDENT: Wheaton-Haven Recreation Assn., Inc.
LOCATION: United States Department of Agriculture
DOCKET NO.: 71-1136
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fourth Circuit
CITATION: 410 US 431 (1973)
ARGUED: Nov 15, 1972
DECIDED: Feb 27, 1973
Allison W. Brown, Jr. - for petitioners
Henry J. Noyes - for respondents Wheaton-Haven Recreation Association, Inc., and others
John H. Mudd - for respondent E
Facts of the case
Media for Tillman v. Wheaton-Haven Recreation Assn., Inc.
Audio Transcription for Oral Argument - November 15, 1972 in Tillman v. Wheaton-Haven Recreation Assn., Inc.
Warren E. Burger:
We'll hear arguments next in 71-1136, Tillman against Wheaton-Haven.
Mr. Brown, you may proceed whenever you are ready.
Allison W. Brown, Jr.:
Mr. Chief Justice, may it please the Court.
This case is virtually indistinguishable from a case which this Court had four or three years ago called Sullivan against Little Hunting Park.
The issue here as it was there is whether a community recreation association may discriminate on grounds of race which respect the persons who are otherwise eligible to use its facilities.
Wheaton-Haven Recreation Association, the organization at issue here is virtually a carbon copy of Little Hunting Park, the association which was at issue in the Sullivan case.
The principle characteristic of Wheaton-Haven Recreation Association is set by its bylaws which state very unequivocally that membership shall be open to bona fide residents, whether or not home owners of the area within a three quarter mile radius of the pool.
The facility involved, which is the principle function of Wheaton-Haven is the swimming pool that it operates.
The swimming pool is similar to those that are characteristic of many suburban areas in the United States and most particularly in the Washington area.
In Washington suburbs are some 100-150 of them that have been built by neighbors, people in the neighborhood on a cooperative basis.
They are principally predominant in the areas where of course there are no public swimming facilities.
Wheaton-Haven has an initiation fee of $375 and in addition, annual dues of $50-60 a year.
I regret to say that on Page 4 of the petitioner's brief, there is a typographical error, where it says that the annual dues are a $150-160 a year, it should be $50-60 a year.
Warren E. Burger:
Which page was that, again?
Allison W. Brown, Jr.:
That's Page 4 of the petitioner’s brief.
The annual dues are $50-60, not a $150-160, that’s the blue brief.
The bylaws provide that numbers can be taken from outside of the three quarter mile radius of the pool provided that such numbers do not exceed 30% of the membership of the association.
Members who are brought into the association, who pay their dues are subject to approval of the Board of Directors or the membership of the association.
One of the characteristics or one of the features of membership in the pool is that a member upon selling his house, may transfer a first option to his vendee.
Now, he does this by selling his membership back to the association and that vendee then has a first option to buy that.
That is -- and that gives him a preference over any persons who are on a waiting list.
The maximum number of members permitted in the pool being 325 families.
Wheaton-Haven was constructed in 1958 under the terms of a special ordinance adopted by the Montgomery County, Maryland Council which is adopted and designed to facilitate the construction of these community recreation -- swimming pools.
The Montgomery County Council stated that it wished to promote the building and construction of these pools because they served an important community function by providing recreation facilities which were not otherwise available in the area.
As a condition of getting zoning approval, the Wheaton-Haven was required by the zoning authority to show -- demonstrate that 60% of its construction cost were subscribed.
In other words, that was in fact meeting a need of the community.
As a means of creating its initial membership, the association conducted a door to door solicitation campaign in the area.
It distributed an advertising circular and charter members -- memberships were made available on the payment of a $20 pledge.
It's original organizational meeting was a public meeting held, or I should say its original promotional meeting was a public meeting held in the auditorium of the Maryland National Capital Park and Planning Commission, a government agency which has a public auditorium.
Wheaton-Haven has always had a sign posted on its premises which is visible from the street in front which states the name and telephone number of the Membership Chairman.