Petition — Herriman v. Midwestern United Life Insurance

Supreme Court, U. S.

FILED

NOV 28 1977

MICHAEL RODAK, JR., CLERK

EE

Supreme Court of ‘the United Sates

October Term, 1977.

No. 77-'76 ]

THE PHILADELPHIA HOUSING AUTHORITY,

Petitioner,

v.

RESIDENT ADVISORY BOARD OF PHILADELPHIA, et al.,

Respondents.

[Additional Respondents listed inside cover]

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Harotp CRAMER,

Marc S. CorRNnBLATT,

15th Floor, The Fidelity Building,

Philadelphia, Pennsylvania. 19109

Attorneys for Petitioners.

Of Counsel:

Mestrov, GELMAN, JAFFE,

CRAMER & JAMIESON.

international Printing Co., 711 So. 50th St. Phile., Pa. 19143 — Tel. (215) 727-6711

ADDITIONAL RESPONDENTS.

Housinc Task FORCE OF THE EsTHER SIERRA MENDEZ,

URBAN COALITION,

Jean THOMAS,

Bernice DevINE,

MABLE SMITH,

(P. .intiff-Appellees below)

City oF PHILADELPHIA, MuLtTICON CONSTRUCTION Corp.

Frank Rizzo, and MULTICON PROPERTIES. |

Hitter Levinson, INC.,

James H. J. Tarte, and

Frep T. Cor.eto,

REDEVELOPMENT AUTHORITY OF WHITMAN AREA IMPROVEMENT

THE City oF PHILADELPHIA, CouncIL,

Unrrep States DEPARTMENT OF HousING AND URBAN

DEVELOPMENT, RusseL_t Byers, and Caria A. Hits,

(Defendant-Appellants below)

[Addresses and special capacities listed in Appendix, pp. A86-A89]

INDEX TO BRIEF.

III. QuESTIONS PRESENTED ........2-0eeeeeeeeeeeeeeeeees 2

IV. ConstITUTIONAL Provisions, STATUTES, AND RULES OF

Ci.m. PROCEDURE INVOLVED ...........00ceeceeeeeees

1. United States Constitution ...............0000008:

DB PRD GRMN ccccccccccvcdcccccccccccccescees

3. Federal Rules of Civil Procedure ...............-.

V. STATEMENT OF THE CASE ..........00eeeceeeeeeeeeee

A. Factual Background ...... ‘cxunneneeneredunadece

B. The Proceedings Below ..............2eeeeeeeees

1. Parties, Cross Claims, and Non-Jury Trial .......

2. Post-Trial Proceedings Relating to Respondent

oon xn FF WO WO W

SR: NS TE vi vccdcccvcscscvesensccces 10

3. The Decision of the District Court ............. ll

° 4. The Decision of the Court of Appeals .......... 12

VI. Reasons ror GRANTING A Writ oF CERTIORARI ........ 14

A. Review of the Decision Below by This Court Is

Necessary to Resolve a Conflict Among the Circuits 14

B. This Case Presents the First Opportunity for This

Court to Decide Whether Segregative Effect, With-

out Discriminatory Intent, Can Establish a Violation

of Title VIII of the Civil Rights Act of 1968 ....... 17

C. The Decision Below Raises Important Issues as to

the Remedial Powers of the Federal Courts ....... 19

D. The Decision Below Severing Legal Cross Claims

for Jury Trial After the Non-Jury Trial of Equitable

Claims Raises Substantial Issues Concerning the

Constitutional Right to Trial by Jury ............. 20

INDEX TO BRIEF (Continued).

Page

E. The Circumstances Relating to the Post-Trial Dis-

closures of Mrs. Jean Thomas Raise Important

Questions Concerning the Implications of the Invo-

cation of the Privilege Against Self-Incrimination in

Se Ge BED ovcecndcvencncocesecccccuses 25

es CD 0. oo ccwhecdcdvecessntdeveccenec scdstcetes 28

APPENDIX:

Opinion of the United States District Court for the

Eastern District of Pennsylvania ................. Al

Order of the United States District Court for the

Eastern District of Pennsylvania ................. A83

Order of the United States District Court for the Eastern

District of Pennsylvania Denying Motions for a New

TD ina keeeedetds4hskdanebeskinndbebacninene A84

Opinion of the United States Court of Appeals for the

PP EY Skah chdnvescssceeendeuneunecessnas A86

CED Uibensiindcehenbeneuesededioas dadus Al44

Order of the United States Court of Appeals for the

Third Circuit Denying Petition for Rehearing ..... A149

TABLE OF CITATIONS.

Cases: Page

Acevedo v. Nassau County, 500 F. 2d 1078 (2d Cir.

Sel cuthutdeicinshwdeeneebhinbabunastenses .. 15, 16, 19

Baxter v. Palmigiano, 425 U. S. 308 (1976) ................ 26

Beacon Theatres v. Westover, 359 U. S. 500 (1959) ........ 22, 23

Boyd v. Lefrak Organization, 509 F. 2d 1110 (2nd Cir. 1975),

cert. denied, 423 U. S. 896 (1975) ...............005. 15, 19

Brown v. United States, 356 U. S. 148 (1958) ............. 26

Chavez-Raya v. Immigration and Naturalization Service, 519

Eos ncchcecativeséengsvesessec 26

Citizens Committee for Faraday Wood v. Lindsay, 507 F. 2d

1065 (2d Cir. 1974), cert. denied 421 U. S. 948

CD éhbigden padeendenetebwesseetectdancssees 15, 16, 19

City v. Multicon, C. C. P., Phila. Cty., June Term, 1972,

DUE cdikvucsddadudsdedbuanésnesdsnevddecadeobe 9

Cromwell v. County of Sac, 94 U. S. 351 (1877) ........... 23

Crumble v. Blumthal, 549 F. 2d 462 (7th Cir. 1977) ........ 18

Curtis v. Loether, 415 U. S. 189 (1974) ................4.. 22

Dairy Queen v. Wood, 369 U. S. 469 (1962) .............. 22, 23

Dayton Board of Education v. Brinkman, — U. S. —, 53 L.

ET ee eT ee 20

Divaick v. Schiedt, 293 U. S. 474 (1935) .................. 23

Eli Lilly & Company v. Generix Drug Sales, Inc., 460 F. 2d

i Caicnetneydigweiebosekues bbe dees 23

Garrett v. City of Hamtramck, 503 F. 2d 1236 (6th Cir.

SE cbwedeutecdsntaedaesdensenbensseuseesessco net 15, 16

Griffin v. California, 380 U. S. 609 (1965) ................ 25

Hansberry v. Lee, 311 U. S. 32 (1940) .................... 27

Haythe v. Decker Realty Co., 468 F. 2d 336 (7th Cir.

DD, dtpecenebeeuebeenedebhbddinieneesseedesess eke 18

Hills v. Gautreaux, 425 U. S. 284 (1976) .................. 20

Johnson v. Albritton, 424 F. Supp. 456 (M. D. La. 1977) ... 18

TABLE OF CITATIONS (Continued).

Cases (Continued): Page

Lee Pharmaceuticals v. Mishler, 526 F. 2d 1115 (2d Cir.

GIO. o. ckcsssicet deeucnasgaauenasiealeieaeeeeee 23

Mayor v. Educational Equality League, 415 U. S. 605 (1974) 20

Metropolitan Housing Development Corp. v. Village of Arling-

ton Heights, 558 F. 2d 1283 (7th Cir. 1977) (“Arlington

og PP ee 16, 17, 19, 21

Milliken v. Bradley (1), 418 U. S. 717 (1974) ............. 20

Milliken v. Bradley (II), — U. S. —, 53 L. Ed 2d 745

CERT) cccvensecevccccctecesocessusensuncateuneunan 20

Moore v. Townsend, 525 F. 2d 482 (7th Cir. 1975) ......... 24

Multicon v. WAIC, C. C. P., Phila. Cty., March Term, 1971,

Bie, GERD ‘co ccccesvccccceccsdedibeeseceeususeeneeunes 8

National Association of Regional Medical Programs, Inc. v.

Mathews, 551 F. 2d 340 (D. C. Cir. 1976), cert. denied,

— U.S. —, 97 S. Ct. 2674 (1977) ........ cece eee eee 27

N. Sims Organ & Co. v. Securities and Exchange Commission,

293 F. 2d 78 (2d Cir. 1961), cert. denied 368 U. S. 968

CERT oeccccceecsecccccee¥henieesancneunesueae 26

O'Shea v. Littleton, 414 U. S. 488 (1974) ..............04.. 20

Ross v. Bernhard, 396 U. S. 531 (1970) ................... 22

Rizzo v. Goode, 423 U. S. 362 (1976) ................005. 20

Sea-Land Services v. Gaudet, 414 U. S. 573 (1974) ......... 23

Smith v. Anchor Building Corporation, 536 F. 2d 231 (8th

Git, SIGE ce vcccuseconecuncdacsdecsansnseteeeenen 14

Sosna v. Iowa, 419 U. S. 393 (1975) ........... cc cce cece 27

Swann v. Charlotte-Mecklenburg Board of Education, 402

D. GB CHRGED ccccedcvccsnceses+euceeunensueeseuel 20

Trafficante v. Metropolitan Life Insurance Company, 409

C. G GEE CHEE cccnccesccessvenssateessnseeeeel 18

United States ex rel. Bilokumsky v. Tod, 263 U. S. 149 (1923) 26

United States v. City of Black Jack, 508 F. 2d 1179 (8th Cir.

1974), cert. denied 422 U. S. 1042 (1975) ............. 14

Village of Arlington Heights v. Metropolitan Housing Devel-

opment Corporation, — U. S. —, 50 L. Ed 2d 450 (1977) 17

TABLE OF CITATIONS (Continued).

Cases (Continued): Page

WAIC v. Multicon, C. C. P., Phila. Cty., July Term, 1971,

eee ce eee ces cee ecceoeeceeteces 8

Warth v. Seldin, 422 U. S. 490 (1975) .................... 18

Wetzel v. Liberty Mutual Insurance Company, 508 F. 2d 239

(3d Cir. 1975), cert. denied, 421 U. S. 963 (1976) ...... 27

U. S. Constitution:

EEE $

Dee nn cs cedebenececs 3, 22

Federal Statutes:

Civil Rights Act of 1968, Title VI_I:

Section 803(b)(1), 42 U. S. C. § 3603(b)(1) .......... 17

Section 804(a), 42 U.S. C. § 36U4(a) .............. 2, et seq.

Ne ccaceccecsceces 1

ES EEE SETTLE POPE E PEEP E EEE 9

EEE EEE SE ELE EE y

Housing Act of 1964, P. L. 88-560, Section 1007, 78 Stat. 769 7

Pennsylvania Statutes:

Pennsylvania Housing Authorities Law, Act of May 28, 1937,

P. L. 955, as amended, 35 P. S. §§ 1544(a), 1550 ....... 19

Rules:

Federal Rules of Civil Procedure:

EES IIE ELE EDIT PII TED 27

ec cin bcc ccoeeecess 2, 9, 26, 27

EE ESSE ELE ESE EEE PEE EE TEESE EE 27

os coc ccccccccecsceces 22

LESSEE LS SELES LISTE EEE DE EEE 22

Other Authorities:

Applying the Title VII Prima Facie Case to Title VIII Liti-

gation, 11 Harv. C. R.-C. L. L. Rev. 128, 147-150 (1976) 15

Restatement, Contracts §§ 454-457 ..........0.00.0. cee, 24

3B Moore's Federal Practice {23.60 ................00.00. 27

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I, OPINIONS BELOW.

The Opinion of the District Court is reported at 425

F. Supp. 987 and is printed in the Appendix hereto, pp.

Al1-A82. The Opinion of the Court of Appeals is not yet

officially reported but is printed in the Appendix hereto,

pp. A86-A143.

Il. JURISDICTION.

The Judgment of the Court of Appeals, of which

review is sought, was entered on August 31, 1977 (Ap-

pendix at Al44-Al148. The Appendix is hereafter cited

as “A —”). By Order dated September 26, 1977 (A149),

the Court of Appeals denied the Petition of Appellees

below (Respondents herein) for a panel rehearing. This

Court has jurisdiction to review the judgment of the Court

of Appeals upon Writ of Certiorari under 28 U. S. C.

§ 1254(1).

2 Petition for Writ of Certiorari

Ill. QUESTIONS PRESENTED.

1. Whether a state agency may be held in violation of

Section 804(a) of Title VIII of the Civil Rights Act of

1968, 42 U. S. C. § 3604(a), without a finding that the

agency acted with discriminatory intent.

2. Whether a federal court may order a state agency,

which has not been found to have committed a constitu-

tional violation, affirmatively to build a particular housing

project at a precise location in accordance with specific

plans, when alternative remedies are available.

3. Whether a court may hold a state agency liable,

under Title VIII of the Civil Rights Act of 1968, for the

segregative effect of the termination of a proposed housing

project, when there has been no proof and no finding by

the trial court that the agency caused the termination.

4. Whether, in litigation in which the plaintiffs’

equitable claims and a defendant's legal cross claims raise

common issues of fact, the severance of the cross claims

for trial after the non-jury trial of the equitable claims

denies the defendant its constitutional right to a jury trial

of the cross claims.

5. Whether, in a class action under Rule 23(b) (2) of

the Federal Rules of Civil Procedure, a court may disre-

gard a representative plaintiffs retraction of testimony

and invocation of the privilege against self-incrimination

for perjury, when the individual was the only named

plaintiff or class representative to testify and the only indi-

vidual unequivocally to support the relief requested.

— wh nod

ee ae

Petition for Writ of Certiorari 3

IV. CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES OF CIVIL PROCEDURE INVOLVED.

1. United States Constitution.

AMENDMENT V.

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be compelled in any

criminal ease to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use,

without just compensation.

AMENDMENT VII.

In Suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right of trial by

jury shall be preserved, and no fact tried by a jury, shall

be otherwise reexamined in any court of the United States,

than according to rules of common law.

2. Federal Statutes.

Crvm Ricuts Act or 1968, Trrie VIII,

Section 804(a), 42 U. S. C. § 3604(a).

As made applicable by section 3603 of this title and

except as exempted by section 3603(b) and 3607 of this

title, it shall be unlawful—

(a) to refuse to sell or rent after the making of a

bona fide offer, or to refuse to negotiate for the sale or

rental of, or otherwise make unavailable or deny, a

\

4 Petition for Writ of Certiorari

dwelling to any person because of race, color, religion, sex,

or national origin.

3. Federal Rules of Civil Procedure.

Rute 23.

Sussections (a), (b)(2), (c)(2),

and (c)(3).

CLASS ACTIONS.

(a) Prerequisites to a Class Action. One or more

members of a class may sue or be sued as representative

parties on behalf of all only if (1) the class is so numerous

that joinder of all members is impracticable, (2) there are

questions of law or fact common to the class, (3) the

claims or defenses of the representative parties are typical

of the claims or defenses of the class, and (4) the rep-

resentative parties will fairly and adequately protect the

interests of the class.

(b) Class Actions Maintainable. An action may be

maintained as a class action if the prerequisites of sub-

division (a) are satisfied, and in addition:

(2) the party opposing the class has acted or refused

to act on grounds generally applicable to the class, thereby

making appropriate final injunctive relief or corresponding

declaratory relief with respect to the class as a whole;

(c) Determination by Order Whether Class Action to

be Maintained; Notice; Judgment; Actions Conducted

Partially as Class Actions.

- eee

eo

Petition for Writ of Certiorari 5

(2) In any class action maintained under subdivision

(b)(3), the court shall direct to the members of the class

the best notice practicable under the circumstances, in-

cluding individual notice to all members who can be iden-

tified through reasonable effort. The notice shall advise

each member that (A) the court will exclude him from the

class if he so requests by a specified date; (B) the judg-

ment, whether favorable or not, will include all members

who do not request exclusion; and (C) any member who

does not request exclusion may, if he desires, enter an

appearance through his counsel.

(3) The judgment in an action maintained as a class

action under subdivision (b)(1) or (b)(2), whether or

not favorable to the class, shall include and describe those

whom the court finds to be members of the class. The

judgment in an action maintained as a class action under

subdivision (b)(3), whether or not favorable to the class,

shall include and specify or describe those to whom the

notice provided in subdivision (c)(2) was directed, and

who have not requested exclusion, and whom the court

finds to be members of the class.

Rute 38.

Sussections (a), (b), AND (c).

JURY TRIAL OF RIGHT.

: (a) Right Preserved. The right of trial by jury as de-

clared by the Seventh Amendment to the Constitution or

as given by a statute of the United States shall be pre-

served to the parties inviolate. ;

(b) Demand. Any party may demand a trial by jury

of any issue triable of right by a jury by serving upon the

6 Petition for Writ of Certiorari

other parties a demand therefor in writing at any time

after the commencement of the action and not later than

10 days after the service of the last pleading directed to

such issue. Such demand may be indorsed upon a plead-

ing of the party.

(c) Same: Specification of Issues. In his demand a

party may specify the issues which he wishes so tried;

otherwise he shall be deemed to have demanded trial by

jury for all the issues so triable. If he has demanded trial

by jury for only some of the issues, any other party within

10 days after service of the demand or such lesser time as

the court may order, may serve a demand for trial by jury

of any other or all of the issues of fact in the action.

Rute 42(b).

(b) Separate Trials. The court, in furtherance of con-

venience or to avoid prejudice, or when separate trials will

be conducive to expedition and economy, may order a

separate trial of any claim, cross-claim, counterclaim, or

third-party claim, or of any separate issue or of any num-

ber of claims, cross-claims, counterclaims, third-party

claims, or issues, always preserving inviolate the right of

trial by jury as declared by the Seventh Amendment to the

Constitution or as given by a statute of the United States.

ese” —

Petition for Writ of Certiorari 7

V. STATEMENT OF THE CASE.

A. Factual Background.

This proceeding arises from a long history of contro-

versy concerning proposals for a public housing project in

an area of South Philadelphia known as Whitman Park.

Both the District Court (A8-A32) and the Court of Ap-

peals (A94-A109) have described the complex chronology

of events leading to litigation.

Petitioner The Philadelphia Housing Authority

(“PHA”) is a local housing authority, created as an agency

of the Commonwealth of Pennsylvania under the Pennsyl-

vania Housing Authorities Law, Act of May 28, 1937, P. L.

955, 35 P. S. §§ 1541 et sey., generally charged with the

operation of public housing projects in the City of Phila-

delphia. In 1956, PHA began a series of hearings which,

with other administrative and governmental proceedings,

led to the choice of Whitman Park as the site for a pro-

posed high-rise public housing project, to be called “Dela-

ware Towers” (A8-A9, A97). Condemnation and acquisi-

tion of the land for the program began in 1959 (AQ).

There soon developed substantial local concern over

the prospect of high-rise public housing, and, in 1961,

residents of the Whitman area formed a community or-

ganization called the “Whitman Area Improvement Coun-

cil” (““WAIC”) to oppose the project (A9). In view of

the community opposition, and after further hearings and

negotiation, the administrative and construction pro-

cedures for the project were changed to permit a low-rise

“townhouse” type design (A11).’

Under the revised proposal, The Redevelopment Au-

thority of Philadelphia (“RDA”) was to acquire the Whit-

1. This change became possible under the so-called “Barrett

Amendment”, introduced by Representative William Barrett of

South Philadelphia and adopted as Section 1007 of the Housing

Act of 1964, P. L. 88-560, 78 Stat. 769.

8 Petition for Writ of Certiorari

man site for transfer to an approved developer under

contracts (including an agreement with PHA) for con-

struction of the project and conveyance back to PHA

(All). After development of a new site plan, sale of the

property to RDA, and unsuccessful negotiations with one

proposed contractor, the relevant agencies chose Multicon

Construction Corp. and Multicon Properties, Inc. (collec-

tively “Multicon”) as the contractor to build the project

(A11-A13).

In 1970, RDA conveyed the land to Multicon under

appropriate contracts (A13-Al4). A groundbreaking

ceremony took place on December 16, 1970, and actual

construction was scheduled to begin on March 23, 1971

(Al5). Except for the building of a fence and some pre-

liminary work, however, there was in fact no construction.

From the commencement date, there followed picketing

and demonstrations, administrative problems and various

other disputes which led to a series of state court actions

and the proceedings below (A15-A32).

In March, 1971, Multicon sued WAIC in the Court

of Common Pleas of Philadelphia County to prevent in-

terference with the project (Multicon v. WAIC, C. C. P.,

Phila. Cty., March Term, 1971, No. 4515), and shortly

thereafter WAIC began an action against Multicon to

stop construction (WAIC v. Multicon, C. C. P., Phila. Cty.,

July Term, 1971, No. 1187). Respondents brought the

instant federal litigation in June, 1971, but the District

Court stayed the proceedings pending the result of the

state court cases (A3).

During the pendency of this litigation, the disputes,

negotiations and administrative actions concerning the

project continued (A15-A32). On April 28, 1972, RDA

adopted a resolution authorizing action against Multicon

upon PHA’s representation of a default under the con-

wwe

PALO AP COM. DPR NG

Ahi O*

Petition for Writ of Certiorari 9

tracts (A25-A26). PHA, however, made no such repre-

sentation, and two months later RDA, by an additional

resolution, itself declared Multicon in default (A26, A28,

A31-A32).

At the same time, a third state court action began,

with the City of Philadelphia bringing suit to stop the

project and Multicon filing a substantial counterclaim for

damages from interference with contractual relations (City

v. Multicon, C. C. P., Phila. Cty., June Term, 1972,

No. 3538) (A27, A29). This state court proceeding ended

in December, 1972, by a settlement under which the City

agreed to a compromise payment on Multicon’s counter-

claim (A32).

By the end of 1972, it appeared that the state court

actions would not resolve the claims presented in the fed-

eral proceeding. The District Court, therefore, terminated

the stay, and the parties proceeded with the litigation,

leading to the decisions below (A3).

B. The Proceedings Below.

1. Parties, Cross Claims, and Non-Jury Trial.

The proceedings below began with a complaint, in-

voking the jurisdiction of the District Court under 28

U. S. C. §§ 1331 and 1343, against the Mayor and Man-

aging Director of the City of Philadelphia and Multicon.

The Court permitted WAIC to intervene as a party defend-

ant, and Multicon joined PHA, RDA, and the United

States Department of Housing and Urban Development

(“HUD”) as third party defendants. Upon respondents’

motions, RDA, PHA, and HUD ultimately became prin-

cipal defendants (A7-A8).

In May, 1975, the District Court certified the case as

a class action, under Rule 23(b)(2) of the Federal Rules

of Civil Procedure, on behalf of “all low income minority

10 Petition for Writ of Certiorari

persons residing in the City of Philadelphia who, by virtue

of their race are unable to secure decent, safe, and sanitary

housing, outside of areas of minority concentration and

who would be eligible to reside in the Whitman Park

Project” (A4).

With its Answer as a principal defendant, PHA filed

a cross claim against Multicon demanding damages for

breach of contract, and PHA timely demanded a trial by

jury. Multicon responded with a counterclaim and cross

claim for damages against PHA. Several months later, re-

spondents moved to delete all claims for money damages,

sever the trial of the cross claims and strike PHA’s demand

for a jury trial.

The District Court decided to allow the case first to

proceed with a non-jury trial of the equitable claims. To

this end, the Court granted the motions to dismiss the

claims for damages, sever the cross claims and strike

PHA’s jury trial demand. While it did not enter a formal

order as to the sequence of trials, the Court determined

from the bench that the non-jury trial would proceed be-

fore the jury trial of the damage claims between PHA and

Multicon (A137).

The non-jury trial began on October 7, 1975, included

57 days of testimony, and concluded on January 21, 1976.

The jury trial of the cross claims has not yet been held.

2. Post-Trial Proceedings Relating to Respondent

M rs. Jean Thomas.

In late July, 1976, Respondent Jean Thomas, the only

class representative and individual plaintiff to testify at

trial, advised the District Court that she wished to change

her testimony because portions of it had been untrue.

After conferences with counsel, the Court met with Mrs.

Thomas and scheduled a hearing on the matter at which

time Mrs. Thomas would retain independent counsel.

Petition for Writ of Certiorari ll

At the hearing, Mrs. Thomas’ attorney advised the

Court that, because of possible self-incrimination that

could arise from retraction of her testimony, Mrs. Thomas,

on the advice of counsel, would exercise her constitutional

privilege to remain silent. The following day, the District

Court entered an order finding Mrs. Thomas entitled to

invoke the privilege.

Shortly thereafter, PHA filed a motion to reopen or

strike Mrs. Thomas’ testimony. The District Court did not

rule on the motion.

3. The Decision of the District Court.

On November 5, 1976, the District Court issued an

82 page Opinion, finding in favor of respondents on three

legal theories, two of which, arising under Title VIII of

the Civil Rights Act of 1968, applied to PHA (A1-A82).

The Court first determined that the affirmative duty

imposed on HUD by Section 808(d)(5) of Title VIII, 42

U. S. C. §3608(d)(5), also applied to state and local

agencies and that the governmental defendants (PHA,

RDA, The City of Philadelphia, and HUD) had failed to

comply with this obligation, by not building the project

(A47, A48-A66).

The District Court also held that a violation of Title

VIII could arise from action having a segregative effect,

without a finding of discriminatory intent. On this basis,

the Court found the governmental defendants in violation

of unspecified portions of Title VIII for having caused

such an effect in “terminating” the project (A48, A66-

A72).

On Respondents’ statutory and constitutional claims

of discriminatory intent, the Court’s Opinion considered

only the City of Philadelphia and WAIC and held only

the City to have acted with improper racial motivation

12 Petition for Writ of Certiorari

(A48, A72-A75). The Court did not find any racially

discriminatory intent, or any constitutional violation, on

the part of PHA.

With respect to the remedy, the Opinion recognized

the superiority of so-called “scattered site” public housing

to conventional housing projects for achieving racial in-

tegration, but, for an unstated reason, the Court felt com-

pelled to order the project’s construction, stating:

Although the Court is inclined to agree that “scat-

tered site” housing may be more effective in accom-

plishing racial integration than a large public housing

project, we are of the opinion that on the basis of

this record the Court must order the building of the

Whitman Park Townhouse Project as originally

planned (A79).

Accordingly, the Court entered an Order (A83) di-

recting the building of the project as originally planned,

requiring PHA to submit a plan for the project’s racial

composition, enjoining interference with construction, and

instructing PHA to submit plans for the tenanting of all

public housing projects in Philadelphia to further inte-

gration.

With respect to Mrs. Jean Thomas’ retraction of her

testimony, the Opinion stated only that Mrs. Thomas had

exercised her privilege to remain silent, and that her testi-

mony was “unchanged” (A44). The Opinion made no

reference to the controversy concerning PHA’s demand for

a jury trial.

4. The Decision of the Court of Appeals.

On August 31, 1977, the Court of Appeals entered an

Opinion (A86-Als3) and Judgment (A144-A148) affirm-

ing Paragraphs 1, 2, and 4 of the District Court’s Order,

oe

ee ee ee eee ne ee a a ee |

Petition for Writ of Certiorari 13

concerning the construction of the project, as to PHA and

the other governmental defendants. The Court vacated

Paragraph 3 of the Order, concerning the retenanting of

all public housing projects in Philadelphia, as unwarranted

and outside the scope of the litigation concerning Whit-

man Park.

In its discussion of Title VIII, the Court of Appeals

reviewed the import of the portion of Section 804(a), 42

U. S. C. § 3604(a), proscribing the denial or making un-

available of a dwelling “because of race”. It determined

that a showing of segregative effect prima facie estab-

lished a violation of this provision, without regard to dis-

criminatory intent (A129-A135).? Quoting the District

Court’s statement concerning the “termination” of the

project, the Court of Appeals found an unrebutted prima

facie case of a Title VIII violation by PHA and the other

governmental defendants (A135-A137). The Court

affirmed the remedy requiring building of the project as

“modest and conservative” (A136-A137 ).

The Opinion referred to the issues concerning Mrs.

Jean Thomas and the jury trial of the cross claims only in

footnotes and found neither sufficient for reversal of the

District Court (All4, A137). With respect to Mrs.

Thomas, the Opinion mentioned only respondents’ stand-

ing to bring the action and the vigorous advocacy by their

counsel (All4). While recognizing the importance of

PHA’s assertion of an unconstitutional denial of a trial by

jury, the Court rejected the claim because it was not “per-

suaded that the essential elements of collateral estoppel

have been met” (A137).

2. Because of its holding concerning segregative effect, the

Court of Appeals found it unnecessary to consider the District

Court’s extension of HUD’s “affirmative duty” under Secticn 808

(d)(5) to state agencies such as PHA (A115, A128).

14 Petition for Writ of Certiorari

VI. REASONS FOR GRANTING A

WRIT OF CERTIORARI.

A. Review of the Decision Below by This Court Is Neces-

sary to Resolve a Conflict Among the Circuits.

The decision of the Court of Appeals, as it relates to

PHA, depends on the Court's holdings (1) that segrega-

tive effect, without regard to discriminatory intent, suf-

fices to establish a violation of Section 804(a) of Title

VIII of the Civil Rights Act of 1968, and (2) that an

order affirmatively requiring a state agency to build a

particular housing project at a specific location according

to specific plans constitutes a permissible and appropriate

remedy for such a statutory violation.

Both of these holdings, concerning important and far-

reaching federal issues, are in direct conflict with the deci-

sions of the Court of Appeals for the Second Circuit, and

substantial conflict with decisions of the Courts of Appeals

for the Sixth and Seventh Circuits.

In the Opinion below, the Court of Appeals states

that its application of an “effect” standard to claims under

Title VIII, without regard to discriminatory intent, “joins

the ranks” of other circuits (A132). In fact, of the courts

of appeals to consider this issue, only the Court of Appeals

for the Eighth Circuit has fully concurred with this por-

tion of the decision below. See Smith v. Anchor Building

Corporation, 536 F. 2d 231 (8th Cir. 1976); United States

v. City of Black Jack, 508 F. 2d 1179 (8th Cir. 1974),

cert. denied 422 U. S. 1042 (1975). No federal court,

including those in the Eighth Circuit, has yet imposed the

extreme remedy, approved by the Court of Appeals in

this case, of requiring a party affirmatively to build specific

housing.

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Petition for Writ of Certiorari 15

In Boyd v. Lefrak Organization, 509 F. 2d 1110 (2nd

Cir. 1975), cert. denied 423 U. S. 896 (1975), the Court of

Appeals for the Second Circuit, in direct conflict with the

decision below, held that segregative effect alone could

not establish a violation of Title VIII, including Section

804(a).*

With respect to remedies under Title VIII, Boyd con-

firmed that the Court of Appeals for the Second Circuit

would not, in the absence of discriminatory intent, require

the construction of housing. Citing the previous decisions

in Citizens Committee for Faraday Wood v. Lindsay, 507

F. 2d 1065 (2d Cir. 1974), cert. denied 421 U. S. 948

(1975), and Acevedo v. Nassau County, 500 F. 2d 1078

(2d Cir. 1974), the Opinion in Boyd stated:

[T]his Court will not impose even on the government

an affirmative duty to construct low-income housing

when the decision not to build is not racially moti-

vated. . . 509F. 2d at 1113.

Similarly, the Court of Appeals for the Sixth Circuit

has, by necessary implication, rejected the type of relief

imposed below as a remedy for a statutory violation based

only on effect. In Garrett v. City of Hamtramck, 503 F. 2d

1236 (6th Cir. 1974), the trial court had, on the basis of

intentional discrimination, directed the construction of a

certain number of housing units in a general geographic

area (without specifying exact locations and plans as was

done below). In considering the propriety of the remedy,

the Court of Appeals held:

The fundamental basis for the district court’s disposi-

tion of this case lies in its finding of constitutional, not

3. A recent law review comment, Applying the Title VII

Prima Facie Case to Title VIII Litigation, 11 Harv. C. R.-C. L. L.

Rev. 128, 147-150 (1976), although ing for a Title VIII “effect”

standard, the inescapable ict on this issue between

the Courts of for the Ei and Second Circuits.

16 Petition for Writ of Certiorari

statutory, violations by the defendants. Only depriva-

tion of constitutional rights would justify the far-

reaching remedial provisions of the court's orders.

503 F. 2d at 1247.

Plainly, the Court of Appeals in Garrett does not concur

with the decision in this proceeding ordering the construc-

tion of a housing project solely on the basis of statutory

violations.

Finally, the Opinion below refers to and relies on the

decision, after remand from this Court, in Metropolitan

Housing Development Corp. v. Village of Arlington

Heights, 558 F. 2d 1283 (7th Cir. 1977) (“Arlington

Heights II”) as supporting the effect standard. Arlington _

Heights I, however, did not generally approve the effect

concept for all cases. It rather found the standard poten-

tially applicable to Title VIII claims, depending upon the

circumstances of the case and four “critical factors”—in-

cluding whether the plaintiff seeks to compel a defendant

affirmatively to provide or build housing or “merely” to

restrain from interference with housing. 558 F. 2d at 1290.

Citing the Second Circuit decisions in Acevedo v. Nassau

County, supra, and Citizens Committee for Faraday Wood

v. Lindsay, supra, the Arlington Heights Il Court found

compelling reasons not to apply an effect standard to a

Title VIII claim requesting the affirmative construction of

housing units. 558 F. 2d at 1293.

In Arlington Heights II, the plaintiffs sought only re-

straint from interference. In this case, respondents sought,

and the Courts below granied, an order directing that the

defendants build specific housing. Under the facts of the

two cases, the decision ‘n Arlington Heights II presents

more of a conflict than a concurrence with the decisions

below.

Petition for Writ of Certiorari 17

B. This Case Presents the First Opportunity for This

Court to Decide Whether Segregative Effect, With-

out Discriminatory Intent, Can Establish a Violation

of Title VIII of the Civil Rights Act of 1968.

In Village of Arlington Heights v. Metropolitan Hous-

ing Development Corporation, — U. S. —, 50 L. Ed 2d

450 (1977), this Court, after reversing the application of

an effect standard to constitutional claims, remanded for a

determination of the case under Sections 804 and 817 of

Title VIII, an issue the lower court had not considered.

50 L. Ed. 2d at 468. The decision thus left open the im-

portant question of whether, in the absence of discrimina-

tory intent, segregative effect could establish a violation of

the provisions of Title VIII of the Civil Rights Act of 1968

prohibiting the denial or making unavailable of a dwelling

“because of race”.

As discussed previously, this issue has given rise to a

conflict among the circuits. Even the courts of appeals

holding the effect standard applicable to Title VIII, how-

ever, including the Court of Appeals in this case, have

found understandable difficulties in deciding that effect

alone suffices to establish a violation of a statute which,

by the use of the phrase “because of race” as its operative

language, plainly suggests a requirement of intent. See

A129; Arlington Heights Il, 558 F. 2d at 1288.

4. The Opinion of the Court of Appeals states that, in debates

on the statute, Senator Baker unsuccessfully tried to amend Title

VIII to provide an intent standard for its violation (A131). In

fact, Senator Baker’s proposal was to extend the exemption for

sales by an owner of a single family home, now in Section 803

(b)(1), 42 U. S. C. § 3603( )(1), to include sales made throw

a broker, subject to roviso that the owner could not use

—— if to the broker a preference or limitation

on race, color, or national origin. 114 Cong. Rec.

5214-5215, 5218, 5219 (1968). The proposed amendment was

unrelated to Section 804(a).

-

TS « Petition for Writ of Certiorari

The only pronouncement by this Court on the sub-

ject strongly suggests that a showing of discriminatory in-

tent is a prerequisite for a violation of Section 804(a).

In Warth v. Seldin, 422 U. S. 490 (1975), this Court, in

reviewing standing to raise certain housing claims, con-

sidered the import under Title VIII of a complaint chal-

lenging zoning practices claimed to have the “consequence

of excluding members of racial or ethnic minority groups.”

422 U.S. at 513 n. 21. Emphasizing the phrase “because

of race” in Section 804(a), this Court found that the com-

plaint did not allege a claim under that Section. The

Opinion also stated that this Court intimated ‘no view as

to the result if the complaint had asserted “purposeful ra-

cial or ethnic discrimination.” Id.

This portion of the Warth Opinion indicates that racial

“consequence” will not establish a claim under Section

804(a) in the absence of a discriminatory purpose, and

several lower courts have applied this concept in private,

non-governmental Title VIII actions. See e.g., Crumble v.

Blumthal, 549 F. 2d 462, 466 (7th Cir. 1977); Haythe

v. Decker Realty Co., 468 F. 2d 336, 338 (7th Cir. 1972);

Johnson v. Albritton, 424 F. Supp. 456, 459 (M. D. La.

1977).°

The decision of the Court of Appeals below, applying

the “effect” standard to Section 804(a) of Title VIII,

reaches a conclusion contrary to that presented in the

Opinion in Warth v. Seldin, supra, and the opinions of

several lower courts. This case presents an opportunity

for this Court firmly to establish the scope of Title VIII

and the standard of proof necessary under Section 804(a).

5. Decisions in private actions are of substantial significance

to the development of Title VIII, since, as this Court has stated,

“complaints by private D go, are the primary method of obtain-

ing compliance with the Act.” Trafficante v. Metropolitan Life

Insurance Company, 409 U. S. 205, 209 (1972).

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Petition for Writ of Certiorari 19

C. The Decision Below Raises Important Issues as to the

Remedial Powers of the Federal Courts.

The Court of Appeals decided that the statutory viola-

tions it had held to arise solely from a segregative effect

justified an order requiring state agencies to build a hous-

ing project according to specific plans at a specific loca-

tion. Although the Court’s Opinion refers to the relief

as “modest and conservative” (A136), the approval of this

remedy is in conflict with decisions of the courts of appeals

of other circuits and presents a substantial question as to

the scope of equitable remedial powers of the federal

courts.

Neither the Court of Appeals, the District Court, nor

respondents (in a 177 page brief below) have referred to

any precedent or authority for a remedy affirmatively

directing the construction of specific housing units. Al-

though the courts have rejected this type of relief in several

cases, see Boyd v. Lefrak Organizations, supra; Citizens

Committee for Faraday Wood v. Lindsay, supra; Acevedo

v. Nassau County, supra; cf. Arlington Heights II, supra,

no federal court, prior to the decisions below, had imposed

such an order either on a governmental agency or a private

party.

The issues raised by the remedy approved by the

Court of Appeals are particularly compelling as applied

to PHA in the circumstances of this case. The Courts

below have, contrary to the mandates of this Court, as-

sumed the governmental functions of PHA, a state

agency,® and decided where and how Philadelphia’s pub-

lic housing will be built, without finding PHA to have

6. Although the Court of Appeals refers to PHA as the “City’s”

housing authority (A123) and a “municipal” agency (A127), PHA

is, by the Pennsylvania Housing Authorities Law, an agency of

the Commonwealth of Pennsylvania. 35 P. S. §§ 1550, 1544(a).

20 Petition for Writ of Certiorari

committed a constitutional violation or to have acted with

discriminatory intent.

This Court has repeatedly held that such an intrusion

into state or local government functions requires a con-

stitutional violation by the governmental agency involved.

Swann v. Charlotte-Mecklenburg Board of Education, 402

U. S. 1, 16, 28 (1971); Milliken v. Bradley (1), 418 U. S.

717, 738 (1974); Rizzo v. Goode, 423 U. S. 362, 377

(1976); Hills v. Gautreaux, 425 U. S. 284, 293 (1976);

Milliken v. Bradley, (11), — U. S. — , 53 L. Ed. 2d 745,

757 (1977); Dayton Board of Education v. Brinkman, —

U.S. — , 53 L. Ed. 2d 851, 862, 863 (1977). The holdings

of the District Court and the Court of Appeals in this

case against PHA are purely statutory, and PHA has not

been found to have violated the Constitution.’

This Court has also made clear that a federal court

must recognize and exercise special delicacy and restraint

in the use of its equitable powers in connection with the

activities and functions of state and local agencies. Rizzo

v. Goode, supra. See also Milliken v. Bradley (11), —

U. S. —, 53 L. Ed. 2d 745, 756 (1977); Mayor v. Educa-

tional Equality League, 415 U. S. 605, 615 (1974); O’Shea

v. Littleton, 414 U. S. 488, 500 (1974). Although this

concept does not easily lend itself to precise rules and

standards, PHA submits that, in a case involving the

extreme remedy of a mandatory injunction to build hous-

ing, issues of federalism at least require that substantial

consideration be given to the availability of reasonable

alternatives and the actual need for the relief ordered.

7. The only governmental defendant that the Courts below

found to have violated the Constitution, the City of Philadelphia,

is also the only governmental defendant that would not have an

active role in out the planning, construction, and operation

of the Whitman Par project. .

Petition for Writ of Certiorari 21

Both of these factors confirm the impropriety of the

remedy of requiring the building of the Whitman Park

project. The District Court expressly recognized that

so-called “scattered site” housing presented not only a

reasonable, but a preferable, alternative to the project

(A79).* Notwithstanding this conclusion, however, the

District Court, without explanation, decided to order the

project’s construction.”

Similarly, there has been no reasonable showing of

the need or desire for the use of the resources of the

governmental agencies in this case, including PHA, to

build this particular housing project. There has been

substantial opposition to the project from the surrounding

community, local government, and other state and local

agencies. During 57 days of trial, only one person, Mrs.

Jean Thomas, testified to an unequivocal desire to live in

the project (and thus to have it built), and, as discussed

below, Mrs. Thomas subsequently retracted her testimony.

There is thus no credible evidence that anyone, including

anyone eligible for public housing, wants the project built.

ing

individual dwelling units throughout a community, rather than a

concentration of public ing in a single project. Unlike the

remedy app below, relief based on scattered site housing

would not require an order for construction of a specific project

and would obviate the need for the courts to assume the function

of state and local agencies to decide where and how to build

housing.

22 Petition for Writ of Certiorari

D. The Decision Below Severing Legal Cross Claims for

Jury Trial After the Non-Jury Trial of Equitable

Claims Raises Substantial Issues Concerning the Con-

stitutional Right to Trial by Jury.

With its Answer as a principal defendant, PHA filed

a cross claim against Multicon, the project developer, for

money damages for breach of contract in failing to build

the project—a claim at law giving rise to a constitutional

right to a trial by jury.’ U.S. Const., Amend. VII; Curtis

v. Loether, 415 U. S. 189, 195-196 (1974); Ross v. Bern-

hard, 396 U. S. 531, 533 (1970). PHA timely demanded

a jury trial, applicable to all issues including cross claims.

F. R. Civ. P., Rules 38(b), 38(c).

The District Court prevented the initial determination

by a jury of factual issues common to the equitable claims

and legal cross claim, by severing the cross claim for trial

after the non-jury trial of equitable issues. The Court of

Appeals approved this procedure solely because it was

“not persuaded that the essential elements of collateral

estoppel have been met.” (A137). PHA submits that the

decisions of this Court do not permit circumvention of the

constitutional right to a trial by jury on the basis of the

formalities of doctrines such as collateral estoppel.

A trial court cannot constitutionally deny or curtail

the right to a jury trial by the severance and prior trial

of equitable claims, except to prevent irreparable harm

in the most imperative circumstances. Beacon Theatres

v. Westover, 359 U. S. 500 (1959); Dairy Queen v. Wood,

369 U. S. 469 (1962)."" As Mr. Justice Black stated in

10. Multicon also filed a cross claim and counterclaim against

PHA, demanding money damages for breach of a settlement

agreement.

11. In Beacon Theatres, this Court stated that, in view of the

flexible procedures of the Federal Rules of Civil Procedure, it

could not foresee the imperative circumstances that might justify

al

Petition for Writ of Certiorari 23

the Opinion in Beacon Theatres, citing Dimick v. Schiedt,

293 U. S. 474, 486 (1935):

Maintenance of the jury as a fact-finding body is of

such importance and occupies so firm a place in our

history and jurisprudence that any seeming curtail-

ment of the right to a jury trial should be scrutinized

with the utmost care. 359 U. S. at 501.

The application of such a fundamental constitutional

doctrine does not depend upon the technical prerequisites

of collateral estoppel.’ Both this Court and the courts of

appeals have recognized the criterion for consideration of

the propriety of a prior non-jury trial of equitable claims

to be whether the litigation raises issues of fact common

to the legal and equitable claims of the case. Dairy Queen

v. Wood, supra; Lee Pharmaceuticals v. Mishler, 526 F. 2d

1115, 1117 (2d Cir. 1975); Eli Lilly & Company v.

Generix Drug Sales, Inc., 460 F. 2d 1096, 1107 (5th Cir.

1972). In any such case, all claims must be tried in a

single jury trial, or the legal claims tried before a jury

prior to the trial of the equitable claims.

Resolution of respondents’ equitable claims and

PHA’s cross claims in this case necessarily requires deter-

11. (Cont’d.)

irreparable harm or “imperative” circumstances,

12. Although possible collateral estoppel is not determinative

of the jury issue, it is likely that the ine would apply to

the trial of the cross claims. “termination”, or non-construc-

tion, of the project, which will be the pri issue on the breach

of contract claims, was a major controverted issue in the proceed-

ings below (in which PHA and Multicon were adverse parties)

on which the District Court made numerous ings of fact. See

v. Gaudet, 414 U. S. 573, 593 (1974); Cromwell

o. County of Sac, 94 U. S. 351, 353 (1877).

24 Petition for Writ of Certiorari

mination of common issues of fact. Respondents assert

liability under Title VIII against PHA and the other gov-

ernmental defendants for the effect of not building the

Whitman Project. PHA’s cross claim alleges contract

liability for damages on the part of Multicon for failure

to build. No factual decision on either claim is possible

without findings as to the party responsible for non-

construction.

The District Court in fact made such findings and, in

so doing, severely curtailed, or made effectively impossible,

a jury trial of PHA’s cross claim. The District Court’s

Opinion contains a 24 page exposition of findings of fact

with extensive references to Multicon and the events lead-

ing to the non-construction of the project (A8-A32), and

the Court of Appeals substantially confirmed that presenta-

tion (A94-A109). Because of these decisions, made with-

out a jury, PHA’s cross claims face the complete defense

of impossibility of performance in that the courts have al-

ready decided that the governmental defendants in this

case, not Multicon, terminated the project and prevented

Multicon from fulfilling its contractual obligations. See

e.g. Restatement, Contracts §§ 454-457.

PHA submits that such a result, based entirely on the

formalities of collateral estoppel, does not comport with

the mandate of the seventh amendment and should be re-

viewed by this Court."*

13. In reaching its decision on this issue, the Court of

relied on Moore ov. Townsend, 525 F. 2d 482 (7th Cir. 1975). In

Moore, however, the decision permitting the severance of cross

claims for a later trial was based not on considerations of col-

Petition for Writ of Certiorari 25

E. The Circumstances Relating to the Post-Trial Dis-

closures of Mrs. Jean Thomas Raise Important Ques-

tions Concerning the Implications of the Invocation

of the Privilege Against Self-Incrimination in a Civil

Class Action.

Approximately five months after trial, Mrs. Jean

Thomas, the only individual plaintiff and the only class

representative to testify at trial, advised the District Court

that portions of her testimony had been untrue. After

several conferences, Mrs. Thomas, on the advice of new

and independent counsel, invoked her privilege against

self-incrimination and refused to say anything further

about her disclosure or her prior testimony.

The District Court’s Opinion made no reference to

these developments, except to state that because of Mrs.

Thomas’ silence under her fifth amendment privilege her

testimony was “unchanged” (A44).* The Court of Ap-

peals did not question this conclusion and referred to the

matter only briefly i the context of standing and the

vigorous prosecution of the action by respondents’ counsel

(All4). PHA submits that the issues raised by Mrs.

Thomas’ actions are of substantially more importance and

present far-reaching questions concerning the use of the

fifth amendment privilege in civil cases.

First, Mrs. Thomas’ disclosure and subsequent silence

did not leave her testimony “unchanged”. Although the

invocation of the privilege against self-incrimination can-

not establish an inference of guilt in a criminal case, Griffin

v. California, 380 U. S. 609 (1965), a failure or refusal to

speak in a civil proceeding does give rise to an inference

14. Shortly after the hearing concerning Mrs. Thomas’ dis-

closures, PHA filed a motion to strike or reopen testimony, and

raised the issue in a motion for a new trial. The

denied the motion for a new trial without comment (A84-

A85) and did not rule on the motion to strike or reopen testimony.

26 Petition for Writ of Certiorari

that the testimony, if given, would have been adverse to

the witness. Baxter v. Palmigiano, 425 U. S. 308, 319

(1976).* Since, as all parties have recognized, Mrs.

Thomas invoked her privilege to avoid self-incrimination

for perjury, her silence established an inference that she

would have contradicted her previous testimony under

oath, and that her testimony at trial was untrue.

The significance of this inferred perjury to the pro-

ceedings below is substantial."* At trial, Mrs. Thomas ex-

pressed her desire to live in the Whitman Park Project

(and thus to have it built), and she was the only witness

unequivocally so to testify. With her testimony inferred

to have been false, there is no credible evidence support-

ing any need or desire for the project’s construction. The

importance of such circumstances to a case involving a

mandatory injunction requiring a state agency to build the

project cannot be dismissed solely by reference to standing

and the vigorous advocacy of counsel.

In addition, this litigation proceeded as a class action,

under Rule 23(b)(2) of the Federal Rules of Civil Pro-

cedure, on behalf of thousands of persons, with Mrs.

Thomas as a named class representative and the only such

15. Both this Court and the lower federal courts have con-

firmed and applied such an adverse inference under circumstances

involving consequences to the witness far more serious than any

at issue here. See Baxter v. Palmigiano, supra (prison eee

Brown v. United States, 356 U. S. 148 (1958) (contempt);

Raya v. Immigration and Naturalization Service, 510 F. 2d 397

(7th Cir. 1975) (deportation); N. Sims Organ & Co. v. Securities

and Exc e Commission, 293 F. 2d 78 (2d Cir. 1961), cert.

denied 368 U. S. 968 (1962) (license revocation).

16. This Court has recognized the importance in civil actions

of inferences from silence and found that a prohibition of an

adverse inference “derogates rather than improves the chances for

accurate decisions”. Baxter v. Palmigiano, supra at 319. As Mr.

Justice Brandeis stated in United States ex rel. Bilokumsky v. Tod,

263 U. S. 149, 153-154 (1923), “Silence is often evidence of the

most persuasive character.”

Petition for Writ of Certiorari 27

representative to testify at trial. Rule 23(a)(4) requires

that, as a class representative, Mrs. Thomas “fairly and

adequately protect the interests of the class”. Because of

the binding effect of class action adjudications, F. R. Civ.

P., Rule 23(c)(3), fair and adequate representation is not

only a prerequisite of the Rule, but a constitutional man-

date of due process. Hansberry v. Lee, 311 U. S. 32

(1940). See also National Association of Regional Medi-

cal Programs, Inc. v. Mathews, 551 F. 2d 340, 346 (D. C.

Cir. 1976), cert. denied, — U. S. —, 97 S. Ct. 2674

(1977).""

At a minimum, adequate class representation requires

that the representative's interest coincide and not conflict

with the interests of the class, Sosna v. Iowa, 419 U. S.

393, 403 (1975). The post-trial developments relating to

Mrs. Thomas raise substantial questions concerning her

compliance with this standard. The issue is not, as the

Court of Appeals suggested, counsel’s vigor in supporting

the position Mrs. Thomas asserted at trial, but whether the

presentation and advocacy of that position on the basis of

testimony now inferred to be false properly represented a

class which is conclusively bound by the results of the

representation.

Stated differently, the injerence arising from Mrs.

Thomas’ post-trial disclosure and subsequent invocation

of her fifth amendment privilege raises the question of

whether, in a federal class action, perjury is “fair and

adequate” representation.

17. This is particularly important in a class action under Rule

23(b)(2), in which the absent class members are conclusively

bound by the result, but are not entitled to any notice of the pro-

oaaee ond Se act hove en portunity, available in actions

under Rule rae 3), to “opt out? of the i ation. F. R. Civ. P.,

Rules 23(c)(2), 23(c)(3). See Wetzel v. Mutual Insur-

ance ep pm 508 F. 2d 239 (3d Cir. 1975), cert. denied, 421

U. S. 963 (1976); 3B Moore's Federal Practice { 23.60 at 23-1202.

28 Petition for Writ of Certiorari

VII. CONCLUSION.

For the foregoing reasons, Petitioner The Philadel-

phia Housing Authority respectfully submits that this

Petition for a Writ of Certiorari should be granted to re-

view the decision of the United States Court of Appeals

for the Third Circuit.

Respectfully submitted,

HaroOLp CRAMER,

Marc S. CorNBLATT,

15th Floor, The Fidelity Building,

Philadelphia, Pa. 19109

Attorneys for Petitioner.

Of Counsel:

MeEstrov, GELMAN, JAFFE,

CRAMER & JAMIESON.