# Petition — Herriman v. Midwestern United Life Insurance

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1972
- **Citation:** 405 U.S. 921

## Text

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

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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

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0116%3A1. Public record. Not legal advice.