Petition — City of Black Jack v. Bates

Supreme Court brief1980

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

THE City OF BLACK JACK,

A Municipal Corporation, et al.,

Petitioners,

BARBARA BATES, ef al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

WILLIAM H. ALLEN

ALEX KOZINSKI

Covington & Burling

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Roy W. BERGMANN

120 South Central

Clayton, Missouri 63105

SHELDON K. STOCK

130 South Bemiston

Clayton, Missouri 63105

Attorneys for Petitioners

January 1980

TABLE OF CONTENTS

Page

ace weesensacs

JURISDICTION ........ Si aiielitnididinintabbeikssncsnsissesesnevecovees

e's)

er I ia sssccsccsennsnsssercsntevecseoseseosesse

ie acti cles nitildeapnpcniarserieesecorescense

cow WwW KN NN =

I. THE QUESTION WHETHER, TO RE-

MEDY AN _ UNINTENTIONAL

VIOLATION OF THE FAIR HOUS-

ING ACT, A COURT MAY ORDER

A MUNICIPALITY TO PROVIDE

HOUSING UNITS EQUIVALENT

TO UNITS WHOSE CONSTRUC-

TION WAS DELAYED BY THE

VIOLATION AND THAT CANNOT

NOW BE ECONOMICALLY CON-

STRUCTED, IS AN IMPORTANT

QUESTION OF FEDERAL LAW

THAT HAS NOT BEEN AND

SHOULD BE DECIDED BY THIS

II. THE DECISION BELOW IS INCON-

SISTENT WITH DECISIONS OF

THIS COURT THAT LIMIT THE

POWERS OF FEDERAL COURTS

TO INTERFERE IN THE INTER-

NAL AFFAIRS OF STATES AND

THEIR INSTRUMENTALITIES....... 13

A. No Decision of this Court Sup-

ports the Decision Below ......... 13

Page

B. The Decision Below Is Inconsist-

ent with Decisions of this

Court Holding that Affirma-

tive Equitable Relief Against

Public Bodies Is Available

Only in Cases of Con-

stitutional Violations ................ 14

C. The Decision Below Is Inconsist-

ent with the Principle Under-

lying National League of Cit-

EO SIE ccscrcssnstabiinbitanineons 17

III. ANOTHER COURT OF APPEALS

HAS RULED THAT IT COULD

NOT GRANT THE KIND OF

AFFIRMATIVE RELIEF OR-

DERED BY THE COURT BELOW

FOR AN UNINTENTIONAL VIO-

LATION OF THE FAIR HOUSING

Fs ERRORS Pe otal ws Ny OL CRE) eNO 20

i ahiseiks cic scsancadeniaaimncaiasntchenstedsnncneeonsnbin 23

Appendices:

A. Opinion of the District Court .................+ A-1

B. Opinion of the Court of Appeals.............. B-1

C. Judgment of the Court of Appeals........... C-1

D. Denial of Petition for Rehearing ............. D-1

FR ihcreceensinenicrsccsnsnscatnnssiactinsmncvncns E-]

TABLE OF AUTHORITIES

CASES:

Albermarle Paper Co. v. Moody, 422 U.S. 405

PMD ieseticsncndieatibahessuohhdcAciieininsedinsdnadenviovosss

City of Anniston v. Scott, NO. 79-390 ........cccccceceee-

City of Los Angeles v. Blake, No. 79-54 .....ccccccceee.

City of Rome v. United States, No. 78-1840

Coyle v. Oklahoma, 221 U.S. 559 (1911) ...c.cccce0-

Garrett v. City of Hamtramck, 503 F.2d 1236

Ce a Barta ahthceiedndiitiainvicaveoracecsaane

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

Mayor of Philadelphia v. Educational Equality

Eiagwe, 415 US. GOS CUSTE) oo cccecvcesccescoecceceseses

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

National League of Cities v. Usery, 426 U.S. 833

(1976)

eeeeeeeeee

SHOPPE HEHEHE HEHEHE EEEHEEEEESEEEEEEEEEEEESESEEEEEEEEEEE EEE SE EEEEE

Park View Heights Corp. v. City of Black Jack,

335 F. Supp. 899 (E.D. Mo. 1971), rev’d., 467

le FE CI Es NEED ssecsinsviivaccnrissaraneiconase

Resident Advisory Board v. Rizzo, 564 F.2d 126

(3d Cir. 1977), cert. denied, 435 U.S. 908

ROWED eathlananitadciinlatdocasteaddennaeadhoticiocsdiceacsiessos'

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

Swann v. Charlotte-Mecklenburg Board of Edu-

cation, 402 U.S. 1 (1971)

United States v. City of Black Jack, 372 F. Supp.

319 (E.D. Mo.), rev’d., 508 F.2d 1179 (8th

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

13,14

Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252

RGF TY a csniscacinceneiienesncontsenisininietiiliiainiaiaanentaiaianeniinies

(BGP) acccccccccenesinecssnntencienininisemetesnmnincubeninibedsnes

Village of Euclid vy. Ambler Realty Co., 272 U.S.

DGS CEGIB) cacereccincesecincosscmiennicemmnsinnsbmamevennnenssins

Washington v. Davis, 426 U.S. 229 (1976) ..........

CONSTITUTIONAL AND STATUTORY PROVISIONS:

Civil Rights Act of 1964, Title VII, 42 U.S.C. §

2000S CF BOG, .-<0cccceesscessaecteninsrnenectbaasancnatvtsooseeses

Civil Rights Act of 1968, Title VIII (Fair Hous-

ing Act), 42 U.S.C. § 3601 ef Seq. ..........:..seeeeee:

Section 812(c), 42 U.S.C. § 3612(c).............

Constitution of the United States

Commerce Clause, art. 1, § 8, cl. 3...........0.....

Fourteenth Amendment.....................-e.seeceeee

Fifteenth Amendment ................---seececeesseeeeees

Fair Labor Standards Act, 29 U.S.C. § 201 ef

SOD. <nresscnsncenssnnssinsianancsammnmaaimaaatann

National Housing Act § 236, 12 U.S.C. § 1715z-1

Page

11,19

10,11

11,19

passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

THE CITY OF BLACK JACK,

A Municipal Corporation, et ai,

Petitioners,

BARBARA BATES, ef al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE |

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

Petitioners, the City of Black Jack, Missouri, and

certain of its officials, pray that a writ of certiorari issue to

review the judgment of the Court of Appeals for the

Fighth Circuit entered in this case on August 28, 1979.

OPINIONS BELOW

The memorandum opinion of the district court is

reported at 454 F. Supp. 1223 and is reproduced as

Appendix A to this Petition at pages Al-A10. The opinion

of the court of appeals is reported at 605 F.2d 1033 and is

reproduced as Appendix B at pages B1-B14.

JURISDICTION

The judgment of the court of appeals was entered on

August 28, 1979. (App. C, p. Cl, infra.) A timely petition

for rehearing was denied on October 3, 1979. (App. D, p.

D1, infra.) The iurisdiction of this Court is invoked under

28 U.S.C. § 1254-1).

QUESTION PRESENTED

A municipality adopted a zoning ordinance limiting

new residential construction to single-family dwellings.

The ordinance was held to have a discriminatory effect, in

violation of the Fair Housing Act, but was found not to

have been enacted with discriminatory purpose or intent

and was not held to violate the Fourteenth Amendment.

At the time the ordinance was adopted, a low- and

moderate-income, multiple-family housing project was

proposed, but it has now been abandoned because it

became uneconomical in the period consumed in good

faith litigation of issues pertaining to the validity of the

ordinance.

The question presented is whether a United States

couri, acting solely on the authority of the Fair Housing

Act and the determination of a violation thereof based on

a finding of discriminatory effect, may order the munici-

pality to take affirmative steps to ensure the construction

of low- and moderate-income, multiple-family housing

equivalent to what would have been provided by the

abandoned project.

STATUTE INVOLVED

Section 812(c) of the Fair Housing Act, Title VIII of

the Civil Rights Act of 1968, 42 U.S.C. §§ 3601 ef seq.,

provides:

“The court may grant as relief, as it deems appropri-

ate, any permanent or temporary injunction, tempo-

rary restraining order, or other order, and may award

to the plaintiff actual damages and not more than

$1,000 punitive damages, together with court costs

and reasonable attorney fees in the case of a pre-

vailing plaintiff: Provided: That the said plaintiff in

the opinion of the court is not financially able to

assume Said attorney’s fees.” 42 U.S.C. § 3612(c).

STATEMENT

ft The City of Black Jack, a community of 5700 persons

living on 1700 acres in the suburbs of St. Louis, Missouri,

was incorporated in August 1970. In October of that year,

the City enacted a zoning ordinance limiting new residen-

tial construction to single-family dwellings. At that time, a

multiple-family development called Park View Heights

was planned for construction in Black Jack. Park View

Heights, a project of the Inter-Religious Center for Urban

Affairs (ICUA), was intended to provide 108 units of

housing for low- and moderate-income families of all

races, most of whom were expected to come from the City

of St. Louis. The project, which was to be funded under

Section 236 of the National Housing Act, 12 U.S.C. §

1715z-1, had received preliminary approval from the

Department of Housing and Urban Development.

Two separate actions were brought in 1971 in the

District Court for the Eastern District of Missouri chal-

lenging Black Jack's single-family dwelling ordinance.

One of these actions was by the United States, In March

1974, the district court dismissed that action, holding that

the ordinance constituted a proper exercise of the City’s

police power, was not enacted with a facially dis-

criminatory motive, and did not have a racially dis-

criminatory effect. United States v. City of Black Jack, 372

F. Supp. 319 (B.D. Mo. 1974), The court of appeals

reversed, United States v. City of Black Jack, 508 F.2d

1179 (8th Cir, 1974), It held that the ordinance violated

relevant provisions of the Fair Housing Act, Title VIII of

the Civil Rights Act of 1968, because the United States

had made out a prima facie case that the ordinance had a

racially discriminatory effect and none of the reasons

underlying the ordinance constituted a compelling govern-

mental interest that would justify an ordinance having

such an effect. The court of appeals left standing the

district court’s determination that enactment of the ordi-

nance “was not due to racial motivation, purpose, or

intent.” 372 F, Supp, at 329.) A petition for a writ of

certiorari was denied, 422 U.S, 1042 (No, 74-1293), The

district court on the remand entered an order declaring the

ordinance illegal and permanently enjoining the City and its

officials from enforcing it, The court further ordered that the

land zoned for multiple-family development before the ordi-

nance was adopted revert to that zoning classification so that

land within the City became and remains available for

' The district court based this finding on, /nter alia, the fact that

the ordinance was approved unanimously by the City’s zoning

commission, two of whose members were black, 372 F, Supp, at 324,

multiple-family development, In addition, the court directed

the City to “affirmatively take whatever steps are necessary to

permit the construction and occupancy of the propose|d] Park

View Heights Development.” (Pp, B&-B9, infra.)

The other action challenging the ordinance (the

action that is the subject of this Petition) was brought by

ICUA, the sponsor of the proposed housing project, the

Park View Heights Corporation, the developer of the

proposed project, and eight persons claiming to represent

the class of prospective residents in the project. After

resolution of preliminary questions of ripeness and stand-

ing,* the parties agreed to stay further proceedings pend-

ing final disposition of the United States action, While the

United States action was on appeal, the parties further

stipulated that they would be bound by the ultimate

decision in that action on the question whether the

ordinance violated the Fair Housing Act or the Con-

stitution, (App. EB, pp. El-B2, infra.)

As noted earlier, the court of appeals eventually held

in the United States action that the ordinance constituted a

violation of Tithe VIII because it had a discriminatory

effect but left standing the district court's finding that the

ordinance did not have a discriminatory purpose, In

pursuance of their stipulation, the parties to this case

entered into a consent judgment in January 1976 whereby

Black Jack paid the developer $450,000 damages. This

judgment concluded the damage claims of all plainufls

and the claims of ICUA and the developer for injunctive

relief but left it open to the representatives of the class of

prospective residents to seek further injunctive or declara-

tory relief, (Pp, A4-A5, infra.)

* See Park View Heights Corp, v, City of Black Jack, 335 F

Supp. 899 (E,D, Mo, 1971), rev'd, 467 F.2d 1208 (Sth Cis, 1973 ..

After unsuccessful negotiations, the plaintiff class

moved for an injunction ordering Black Jack to take

measures “whereby it can reasonably be expected that,

within a reasonable time, in the City of Black Jack, there

will be available for multi-racial, moderate-income occu-

pancy, at least 108 dwelling units.” (P. B11, infra.) The

plaintiff class argued that the increase in building costs

since 1971 had made construction of the Park View

Heights project economically infeasible, and that Black

Jack was therefore obligated to take affirmative steps to

provide substitute low- and moderate-income housing

units in the City,

After a trial, held late in 1976, the district court

denied plaintiffs’ petition for relief in an opinion handed

down in mid-1978, The court first noted that, under the

order entered in the United States action in 1975, “[nJo

legal or governmental impediments by the City of Black

Jack exist to prevent the construction of a low income

housing development on the land in question, Only the

economics of the situation bars construction.” (P. AS5,

infra.) Moreover, the court said, the order in the United

States action, which included the direction that the City

“affirmatively take whatever steps are necessary to permit

the construction and occupancy” of the Park View Heights

project, “provides all of the equitable relief that was

requested in plaintiffs’ complaints” (P, AS, infra.) There

was no suggestion that the City had not complied with the

1975 order,

If, indeed, the Park View Heights project was now

economically infeasible, the court went on, it was because

of intervening circumstances that could not have been

foreseen by the City when the ordinance was adopted,

These included construction cost increases, many of them

| a

resulting from new HUD and local building codes, and,

most significantly, the unavailability of federal subsidy

beyond the dollar amount that had been promised in 1970

because of a moratorium on new Section 236 projects.

The court concluded that “the actions of HUD and some

of the other economic factors which have destroyed the

feasibility of this project constitute independent inter:

vening causes of plaintiffs injury and are beyond the legal

rer ere responsibility of the defendants.” (P. A7,

ra.

The district court concluded further that, apart from

all else, the relief requested by the plaintiff class was not

within the equity powers of a federal court in the absence

of a showing that the zoning ordinance violated the

Constitution, citing Hills v, Gautreaux, 425 U.S, 284, 293

(1976), Milliken v, Bradley, 418 U.S, 717, 738 (1974),

and Swann v, Charlotte-Mecklenburg Board of Education,

402 U.S, 1, 16 (1971), Noting that the parties had agreed

to be bound by the outcome of the United States action,

and that no constitutional violation had there been found,

the court ruled that it was without power (o grant the relief

requested, (°, A9, infra.)

The court of appeals reversed, It concluded that the

ordinance had caused the demise of the Park View

Heights project, in the sense that the project would have

been realized “but for” the ordinance, and it held that the

district court “should not have relieved the defendants of

liability because of the existence of intervening economic

factors,” It also stated that a rise in construction costs

during the period of delay occasioned by the zoning

ordinance “was both inevitable and foreseeable,” dis-

regarding the district court's detailed findings on that

point, (P, BIO, infra. )

The court of appeals also held, without serious ana-

lysis, that the district court erred in concluding that it

lacked power to grant injunctive relief against a munici-

pality absent a constitutional violation. (P. B10, n.5,

infra.) The court finally ruled that the type of affirmative

remedy requested by the plaintiff class was appropriate

and suggested that the district court meet with the parties

and the United States to work out the terms of a decree.

(Pp. B11-B14, infra.)

REASONS FOR GRANTING THE WRIT

The judgment of the court below contemplates that

the City of Black Jack will be ordered to take affirmative

steps ensuring that multiple-family housing for persons of

low and moderate income will be built in the City. There

is no Official obstacle to the construction of such housing.

There has been none since the district court in the United

States action entered its sweeping injunction against

enforcement of the ordinance and, specifically, in favor of

allowing the construction of the Park View Heights pro-

ject. Black Jack, furthermore, has paid money damages to

the developer of that project to recompense it for any loss

it may have suffered as a result of Black Jack’s violation of

the Fair Housing Act.

In the United States action it was established that

Black Jack’s violation lay in the discriminatory effect of an

ordinance that was fair on its face and not motivated by a

purpose to discriminate on the basis of race. The ordi-

nance was not held to violate the Constitution and, on the

findings made, a constitutional violation could not have

been found. An injunction that, in these circumstances,

would command Black Jack to take the additional

affirmative steps indicated by the judgment below is

unprecedented. The question whether the remedy embo-

died in that judgment can be ordered against a public

body on the authority of nothing more than the general

remedial provision of the Fair Housing Act, § 812(c), 42

U.S.C. § 3612(c) (p. 3, supra), for an unintended viola-

tion of that statute, is a novel and important question of

federal law that has not been and should be decided by

this Court. The court of appeals’ answer to the question is

inconsistent with principles established by repeated deci-

sions of this Court: the principle that in our federal system

affirmative equitable relief can be ordered against state

and municipal bodies only for violations of the Con-

stitution and the principle of respect for state sovereignty

enunciated in National League of Cities v. Usery, 426 US.

833 (1976). Those principles, ignored by the court of

appeals below, have been recognized by another court of

appeals in a situation analogous to this one.

THE QUESTION WHETHER, TO REMEDY AN

UNINTENTIONAL VIOLATION OF THE FAIR HOUSING

ACT, A COURT MAY ORDER A MUNICIPALITY TO

PROVIDE HOUSING UNITS EQUIVALENT TO UNITS

WHOSE CONSTRUCTION WAS DELAYED BY THE VIO-

LATION AND THAT CANNOT NOW BE ECONOMIC-

ALLY CONSTRUCTED, IS AN IMPORTANT QUESTION

OF FEDERAL LAW THAT HAS NOT BEEN AND

SHOULD BE DECIDED BY THIS COURT.

In the court below, the United States, appearing as an

amicus curiae in support of the plaintiff class, attested to

the novelty and importance of the question here presented

in the administration of the Fair Housing Act, saying at

page 2 of its brief:

“The present appeal raises novel and important

questions under the Fair Housing Act, most particu-

larly what, if any, remedy is appropriate where

circumstances change so materially during the course

of a municipality’s unsuccessful defense of dis-

criminatory conduct that the relief initially sought is

no longer effective to vindicate plaintiffs’ nights.

In today’s economy, where construction costs are increas-

ing at phenomenal rates and delay of any building project

is therefore potentially costly, the question presented in

this case is a significant question indeed. In the passage

quoted from the brief of the United States, the significance

is stated from the standpoint of the potential beneficiaries

of a proposed housing project that falls victim to the

passage of time. The significance 1s no less for a munici-

pality. The strong interest of a municipality in instituting

and maintaining land-use policies designed to enhance the

quality of its residents’ lives has been recognized by the

Court from Village of Euclid v. Ambler Realty Co., 272

US. 365 (1926), to Village of Belle Terre v. Boraas, 416

U.S. 1 (1974). Its polfcies must be consistent with the

Constitution and any applicable federal statutes, to be

sure. But under the decision below, the cost of defending

such policies against attack based on a federal statute

becomes potentially very high. If the decision below is

allowed to stand, municipalities such as Black Jack will be

deterred from undertaking the legitimate defense of ordi-

nances enacted in good faith that arguably violate a

provision of the Civil Rights Act.

Consider Black Jack’s case: In 1970 it enacted, with-

out discriminatory intent, a zoning ordinance that on its

face was neutral as respects race. The ordinance was

designed to maintain the character of the recently-

incorporated community as predominantly a place for

single-family dwellers, “a sanctuary for people.” Village of

Belle Terre v. Boraas, 416 U.S. 1, 9 (1974). The question

_ whether such an ordinance violates the Fair Housing Act

_ was then open to controversy; it remains so. Indeed, the

Eighth Circuit’s reasoning in the United States action has

been rejected by another court of appeals. In Resident

Advisory Board vy. Rizzo, 564 F.2d 126, 148 (3d Cir.

1977), cert. denied, 435 U.S. 908 ( 1978), the Third Circuit

referred to and declined to follow United States v. City of

Black Jack in its holding that, under Title VIII of the Civil

Rights Act, a municipality must show a compelling gov-

ernmental interest to justify an ordinance found to have a

racially discriminatory effect. The conflict has not been

resolved by this Court. More fundamentally, the decision

of the court of appeals that the Black Jack ordinance could

be invalidated on the basis of discriminatory effect alone

has become suspect in the light of intervening decisions of

this Court that establish that (1) as enforced against a

public body such a statute as Title VIII must find its

authority in the Fourteenth Amendment and not in the

Commerce Clause and (2) the Fourteenth Amendment

covers only purposeful discrimination.3

As a result of the determination that its ordinance had

a forbidden discriminatory effect, Black Jack was enjoined

from enforcing it and directed to take affirmative steps to

3 National League of Cities v. Usery, 426 U.S. 833 (1976);

Washington v. Davis, 426 U.S. 229 (1976); and Village of Arlington

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252

(1977). The effect of these cases is discussed at pages 17-20 below.

permit the construction of the Park View Heights project.

It paid $450,000 in damages to the developer after it

appeared that the project was not going to be built. The

court of appeals has now gone further and required Black

Jack to provide plaintiffs with some equivalent of the 108

units of housing that the developer is no longer interested

in building. By so doing, the court makes the City of Black

Jack—and every other city in the United States—the

guarantor of any housing project adversely affected by any

arguably illegal ordinance it may enact or defend. Facing

that prospect, few municipalities will dare risk the perils of

runaway inflation, the energy crunch and changing politi-

cal currents with regard to federal housing subsidies by

presenting a good faith and possibly meritorious defense

to an ordinance challenged under Title VIII.

At the outset of this discussion we spoke of the cost

imposed upon Black Jack by the decision below. The cost

is not measured in dollars alone, although the $450,000 in

damages is a large sum for a city the size of Black Jack,

and, according to the opinion below, the monetary cost

may go higher.‘ The real cost lies in the sacrifice of

sovereignty that is entailed by the decision, a sacrifice

indicated by the suggestions in the court’s opinion of how

the City could satisfy the plaintiff class’ demand for 108

moderate-income dwelling units. These include the adop-

tion of an “inclusionary zoning ordinance,”s adoption of

4 The court of appeals in its current opinion said that Black Jack

“does not have the means to build the low and moderate income

housing entirely on its own” (p. B12, infra; emphasis added ), leaving

open the possibility that the City could be required to pay a

substantial portion of the cost of building the housing.

5 An “inclusionary zoning ordinance” is defined by the court

below as one which “would require future land developers to provide

a specified percentage of low and moderate income housing units in

their developments.” (Pp. B11-B12, infra.)

“density bonuses,”’6 and establishment of “set-aside” or

override” procedures that “waive some building or zo-

ning requirements for developers of low and moderate

income housing.” (P. B12, infra.) The court suggested

that the Precise means be determined in a conference of

the parties, to which the United States should also be

invited. (P. B13, infra.) Thus, Black Jack’s land-use

policies would be determined not by its democratically-

elected officials in their own counsels but only after forced

consultation with others, under the aegis of a court—and

failing that, by the court itself. /

Il.

THE DECISION BELOW IS INCONS

DECISIONS OF THIS COURT maT tate Ye

POWERS OF FEDERAL COURTS TO INTERFERE IN

THE INTERNAL AFFAIRS OF STATES AND THEIR

INSTRUMENTALITIES.

No decision of this Court warrants such an intrusion

into local governmental affairs on the basis of a mere

unintentional violation of a statute, even a civil rights

statute. Indeed, decisions of this Court make clear that the

decision below is wholly unwarranted.

A. No Decision of this Court Supports the Decision Below.

The Court below purported to find authority in

Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975).

(Pp. B3-B4, infra.) It was mistaken. Albermarle involved

the question of the permissibility of back pay as a remedy

6 The court describes “density bonuses” as inducing “

ucing “devel

to provide low and moderate income dwelling units by semaine

more dense development of land if such units are included.” (P. B12

infra. )

for a violation of the employment title, Title VII, of the

Civil Rights Act. The Court held that such a remedy was

appropriate, even in the absence of an intentional viola-

tion on the part of the employer. Albermarle, however, is

distinguishable in two fundamental respects. First, the

remedy there in question—back pay—was specifically

provided for in the statute, and the Court’s discussion of

the legislative history established that back pay was

intended as a remedy for the violation that had occurred

in the case before it. There is no equivalent statutory

provision in Title VIII. There is no evidence that Con-

gress, which in Section 812(c) expressed itself in quite

customary remedial terms, meant by that statute to em-

power courts to force municipalities into the business of

providing housing units to replace those that may have

been inhibited by an ordinance enacted in good faith and

without discriminatory intent.

The second important difference is that the Alber-

marle defendant was a private corporation, whereas here

the defendant is a municipality. This Court has held that

principles of federalism circumscribe the power of the

federal courts to order injunctive relief that interferes with

the internal workings of state and local governmental

entities. Thus, remedial principles established for civil

rights violations by private parties cannot be applied

indiscriminately to municipalities such as Black Jack.

B. The Decision Below Is Inconsistent with Decisions of this

Court Holding that Affirmative Equitable Relief Against

Public Bodies Is Available Only in Cases of Con-

stitutional Violations.

The foundation case for limits on federal injunctions

against state instrumentalities is Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1, 16 (1971).

The unanimous Court, speaking through the Chief Justice

held that the power of a district court to grant affirmative

injunctive relief against a state or its subdivision is limited

to cases in which a constitutional violation is established

As with any equity case,” the Court said, “the nature of

the violation determines the scope of the remedy.”

The straightforward proposition enunciated in Swann

has been repeated without qualification in other cases

since decided by the Court. See, e.g., Milliken v. Bradley

418 U.S. 717, 738 (1974). In Rizzo v. Goode, 423 US.

362, 377 (1976), the Court placed this admonition in its

proper context, noting that principles of federalism strong-

ly militate against federal judicial interference with the

operation of state and local governments—even where a

constitutional violation is found. See also Mayor of

a v. Educational Equality League, 415 U.S. 605

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

plicated the principles of Swann, Milliken and Rizzo by

stressing that the power of the federal courts to tamper

with the operation of local governments is inherently

limited by the nature of the federal system:

“the Court’s decision [in Milliken] rejecting the

metropolitan area desegregation order was actually

based on fundamental limitations on the remedial

powers of the federal courts to restructure the oper-

ation of local and state governmental entitites. That

power 1s not plenary. It ‘may be exercised “only on

the basis of a constitutional violation.” ’ 418 U.S., at

738, quoting Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1, 16. See Ri

ae gie izzo Vv. Goode, 423

The district court recognized that the lengthy and detailed

involvement in the affairs of the City of Black Jack

contemplated by the plaintiffs would contravene the man-

date of these cases since no constitutional violation had

been found. (P. A9, infra.) The court of appeals,

however, scarcely took account of the issue. It held

summarily, in a footnote, that the district court had the

power to grant the relief requested. (P. B10, n.5, infra. )

One cannot know, therefore, what its reasons were for

ignoring this Court’s explicit admonitions on this point.

The plaintiff class argued below that in all of the

cases we have cited the Court meant to do no more than

state the truism that equitable relief is available only for

unlawful conduct and it just happened that the Con-

stitution was the law that made the conduct unlawful. The

argument is difficult to square with the Court’s repeated

emphasis of the point, an emphasis that would be quite

out of proportion to a simple assertion that a party should

not be awarded an injunction unless the conduct of his

opposing party entitles him to it. In its amicus role below,

the United States saw this point and, at page 12 of its

brief, acknowledged that intentional discrimination such

as would amount to a constitutional violation may be a

condition to the granting of affirmative injunctive relief.

The United States suggested that in the record of its action

against Black Jack there was evidence that could have

supported a finding of intent to discriminate, and it urged

the court to treat such intent as established. That, of

course, is as impermissible, given the parties’ stipulation,

as it would be for Black Jack to ask that the United States

action be readjudicated in the light of the intervening

decisions of this Court. (See p. 11, supra.)7

. The issue of the consistency of the decision below

with Swann and the numerous cases in which Swann has

been followed is squarely presented and sh

solved by this Court. iio

os The Decision Below Is Inconsistent with the Prin-

ciple Underlying National League of Cities v. Usery.

The decision below also conflicts with the separate

but related doctrine of National League of Cities v. Usery

426 U.S. 833 (1976). There the Court held that Congress

has no power to interfere with the internal operation of

State and local governments by requiring the payment of a

minimum wage to state employees. The Court noted that

the federal requirement directly supplants the considered

policy choices of the States’ elected officials and adminis-

trators as to how they wish to structure pay scales in state

employment,” id. at 848, which could “substantially

restructure traditional ways in which the local govern-

ments have arranged their affairs,” id. at 849. Since this

“would impair the States’ ‘ability to function effectively

in a federal system,’” the Court concluded that “[t]his

_ 7 The court of appeals did say in a footno inion i

United ‘States action that there gp “ieee ik bs agenda is

support the contention of the Government that the Black Jack

ordinance . .. was enacted for the purpose of excluding blacks.” It

went on to recite some such evidence. But it concluded by saying that

we do not base our conclusion that the Black Jack ordinance violates

Title VIII on a finding that there was an improper purpose,” 508 F.2d

at 1185 n.3, leaving undisturbed the district court’s finding that the

’ i} )

exercise of congressional authority does not comport with

the federal system of government embodied in the Con-

stitution.” Jd. at 852.

We have described the extent to which Black Jack's

ability to make and carry out its land-use policy choices

would be impaired by the decision below. (Pp. 12-13,

supra.) This interference is significantly greater than the

interference disapproved in Usery. Under the procedure

envisioned by the court below, the power to make impor-

tant decisions would be taken from the elected officials of

the City. Those decisions would have to be made under

the pressure of opposing parties and the United States, all

under the direction of a district judge, who, if agreement

should not be reached, would ultimately make the deci-

sions himself. The decision below would have this effect

upon Black Jack of its own force and immediately and

would serve as precedent for the same result in the case of

any other municipality comparably situated. Because

neither Black Jack nor, by hypothesis, any other munici-

pality for whose case the opinion below is precedent has

committed a constitutional violation, the power of the

court to order this serious intrusion into state autonomy

must arise, if at all, from a congressional enactment, Title

VIII of the Civil Rights Act. Thus, as in Usery, the

question is posed whether Congress, acting through the

federal courts, may “force directly upon the States its

choices as to how essential decisions regarding the conduct

of integral governmental functions are to be made.” 426

US. at 855.

The Fair Labor Standards Act, at issue in National

League of Cities v. Usery, was enacted on the authority of

the Commerce Clause. The commerce power is also a

sufficient source of authority for the Fair Housing Acct in its

application to private parties. The least that National

League of Cities v. Usery means, we submit, is that in its

application to the states and their instrumentalities such a

Statute as the Fair Housing Act cannot be sustained by the

commerce power but could be authorized only by Section

5 of the Fourteenth Amendment. The question whether, in

the light of Washington v. Davis, 426 U.S. 229 (1976),

and Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977), a statute

enacted on the authority of Section 5 can cover non-

purposeful discrimination has not been decided by this

Court and is presented in cases pending on petitions for

certiorari. City of Anniston v. Scott, No. 79-390; City of

Los Angeles v. Blake, No. 79-54. Cf. City of Rome v.

United States, No. 78-1840, pending decision on the

merits (Fifteenth Amendment). The precise question

presented in those cases is not open here because of the

parties’ stipulation to be bound by the outcome of the

United States action, even though that result is now

subject to serious doubt. However, even if that question is

resolved adversely to the petitioning municipalities, the

question raised here will remain open—whether, to re-

medy a statutory violation grounded in discriminatory

effect, a court may go beyond invalidation of the offen-

ding ordinance and impose affirmative requirements such

as those indicated by the judgment below.

It is one thing for Congress, acting under the author-

ity of Section 5 of the Fourteenth Amendment, to limit the

legislative choices of local governing bodies by prohibiting

laws that have the effect of discriminating. It is quite

another for Congress to supplant local autonomy by

forcing its own legislative choices upon state and munici-

pal bodies. Usery cautions that “there would be little left

of the States’ ‘separate and independent existence,’ i if

Congress could dictate the fundamental decisions with

respect to the provision of “services such as [those ]} which

the States have traditionally afforded their citizens.” 426

U.S. at 851, quoting Coyle v. Oklahoma, 221 US. 559, 580

(1911). We submit that it would violate this fundamental

principle of Usery if Congress could force municipalities to

make policy in meetings held under the direction of a

federal judge, separate from their regular city council

sessions, as a penalty for having enacted a statute that is

later found to have a discriminatory effect. Such inter-

ference with local autonomy should be sanctioned, if at

all, only if the violation committed by the local entity was

purposeful, thus signifying a conscious abdication of its

own responsibility under the Fourteenth Amendment.

iil.

ANOTHER COURT OF APPEALS HAS RULED

THAT IT COULD NOT GRANT THE KIND OF

AFFIRMATIVE RELIEF ORDERED BY THE COURT

BELOW FOR AN UNINTENTIONAL VIOLATION OF

THE FAIR HOUSING ACT.

The principles just discussed, ignored by the court of

appeals below, have been recognized by another court of

appeals in a similar case. The Court of Appeals for the

Sixth Circuit has declared that, in the absence of a

constitutional violation, affirmative injunctive relief may

not be granted against a municipality. Garrett v. City of

Hamtramck, 503 F.2d 1236 (6th Cir. 1974), was a civil

rights action brought by blacks displaced by an urban

renewal housing project. The district court held that the

state and federal agencies in charge of the project had

violated the plaintiffs’ statutory and constitutional rights.

aia i Ni taint ah its wk Sc Sea a NN NA STEN BVA IY 80 nN naling Saini VR A ON ee

The district court then ordered the city to provide housing

for individuals displaced by the project. In reviewing this

far-reaching relief (relief remarkably similar to that or-

dered in this case), the Sixth Circuit held that it could be

ordered only on the basis of an intentional constitutional

violation, and not for a mere statutory violation:

“The fundamental basis for the district court’s

disposition of this case lies in its findings of con-

stitutional, not statutory, violations by the defendants.

Only deprivation of constitutional rights would justify

the far-reaching remedial provisions of the court’s

orders. As the Supreme Court held in Swann v.

Charlotte-Mecklenburg Board of Education, 402 US.

I, 16, 91 S.Ct. 1267, 1271, 28 L.Ed.2d 554 (1971),

rehearing denied, 403 U.S. 912, 91 S.Ct. 2200, 29

L.Ed.2d 689 (1971), ‘[ T]he nature of the violation

determines the scope of the remedy.’ Our study of the

record in this case leads to the conclusion that the

district court correctly found that the City has vio-

lated the plaintiffs’ right to equal protection of the

laws under the Fourteenth Amendment by engaging

in activity intentionally designed to establish and add

to segregation in housing patterns. Such activities

have been held to be a constitutional violation.

Gautreaux v. Chicago Housing Authority, 296 F.

Supp. 907 (N.D.IIl. 1969); Hicks v. Weaver, supra,

302 F. Supp. at 623.” 503 F.2d at 1247 ( emphasis

added ).

The Garrett case, with its explicit emphasis on the

difference between statutory and constitutional violations,

underscores that the fundamental issue in this case is not

the disagreement between the district court and the court

of appeals as to the treatment of supervening events in tort

law or as to how foreseeable it was that the Park View

Heights project would become economically infeasible by

the time the legality of the zoning ordinance was finally

adjudicated. (Pp. 6-7, supra.) The fundamental issue is

whether Congress may subject municipalities to a signifi-

cant risk that, if their good-faith land-use ordinances are

held to violate federal law because of a finding of

discriminatory effect, they will be subject to the Staggering

liability of financing or otherwise providing any housing

units that might have been built. Since, in times like these,

it can be foreseen that delay of someone’s planned project

may put the cost of construction out of sight, or may cause

the project to run afoul of new federal policies, public

bodies must be cautious indeed in implementing good-

faith land-use policy decisions for fear of inviting the

intrusion into local policy making that Black Jack is now

faced with. The decision below thus poses a serious threat

to local autonomy by deterring uninhibited, good-faith

decision-making at the state and municipal levels.

CONCLUSION

The question whether the affirmative injunctive relief

directed by the court below against Black Jack is within

the scope of the authority of a court to remedy violations

of the Fair Housing Act that do not amount to con-

stitutional violations is a novel and important one. Several

lines of this Court’s decisions indicate that the question

should be resolved against the existence of any such power

as was assumed by the court of appeals in ordering Black

Jack to take affirmative steps to provide housing that,

following the invalidation of Black Jack’s zoning ordi-

nance for its discriminatory effect, any entrepreneur,

profit-making or charitable, is free to build in the City.

This Court should grant the petition and decide the

question authoritatively.

Respectfully submitted,

WILLIAM H. ALLEN

ALEX KOZINSKI

Covington & Burling

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Roy W. BERGMANN

120 South Central

Clayton, Missouri 63105

SHELDON K. Stock

130 South Bemiston

Clayton, Missouri 63105

Attorneys for Petitioners

January 1980

A-1

APPENDIX A

IN THE UNITED StTaTEs District Court

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 71C 15 (A)

THE Park VIEW HEIGHTS CORPORATION, et al.,

Plaintiffs,

VS.

THE City OF BLACK JACK, et al.,

Defendants.

MEMORANDUM OPINION

HarPER, District Judge.

This action is a continuation of Park View Heights Corp. v.

Black Jack, 335 F. Supp. 899, reversed 467 F. 2d 1208 (8th Cir.

1972). The sole issue before the Court is whether, given the

established violation of the Fair Housing Act, Title VIII of the

Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., the remedial

injunctive relief requested by the plaintiff class is appropriate.

The jurisdiction of this Court exists pursuant to 28 U.S.C. §

1343 and 42 U.S.C. 3610(d).

The original plaintiffs were two non-profit corporations,

the Inter-Religious Center for Urban Affairs, Inc., and Park

View Heights Corporation, and eight individual plaintiffs suing

as a class. The plaintiffs were determined to have Standing to

bring this action in Park View Heights Corp. v. Black Jack, 467

F. 2d 1208 (8th Cir. 1972).

A-2

In the prayer of their complaint, plaintiffs requested the

Court: To expedite the case; to declare Black Jack’s Zoning

Ordinance No. 12 unconstitutional and unlawful; to enjoin the

defendants from enforcing Zoning Ordinance No. 12; to enjoin

defendants from interfering with or obstructing in any way the

construction of the Park View Heights Development; to enjoin

defendants to affirmatively take whatever steps are necessary to

allow construction of the Park View Heights project; to retain

jurisdiction until the completion of the Park View Heights

project; and to allow plaintiffs their costs herein.

After the filing of this action, the United States, on January

14, 1971, filed a complaint in this Court against the City of

Black Jack, United States v. Black Jack, No. 71C 372. Therein,

thé United States alleged that the City of Black Jack had

engaged in racially discriminatory housing practices in violation

of the Fair Housing Act, 42 U.S.C. § 3601 et seq. by exercising

its zoning powers to exclude the construction of a federally

subsidized housing development for low and moderate income

persons. The challenged conduct of the defendant, City of

Black Jack, in United States v. Black Jack, supra, was precisely

the same conduct challenged in the instant action. Both cases

were based upon the same transactions and occurrences.

By the time the action herein was remanded by the Eighth

Circuit Court of Appeals on September 25, 1972, the suit filed

by the United States was well along in the discovery stage. To

prepare the case at bar for trial at that time would have

presented many problems, since the attorneys for the defend-

ants in this action were also the attorneys for the defendant in

the case filed by the United States. The attorneys for the parties

were in agreement that the trial of this action should be delayed

until United States v. Black Jack, supra, was tried and disposed

of in the trial court. After the decision of Judge Meredith on

March 20, 1974, in United States v. Black Jack, 372 F. Supp.

319 (E.D. Mo. 1974), this case was set for trial on September

23, 1974.

A-3

On September 19, 1974, the attorneys for the parties in this

action stipulated that the action be adjourned until the final

disposition in United States v. City of Black Jack (71C

372[1]). They further stipulated that “should the United

States in its capacity as plaintiff in United States v. City of Black

Jack fail to establish that the challenged conduct of the City of

Black Jack constitutes a violation or deprivation of rights

secured by Title VIII of the Civil Rights Act of 1968 (42 U.S.C.

§ 3601 et seq.), the Thirteenth Amendment, or the Fourteenth

Amendment, with the consent of the Court this action is to be

dismissed;” and further, “should the United States in its

capacity as plaintiff in United States v. City of Black Jack,

establish that the challenged conduct of the City of Black Jack

constitutes a violation or deprivation of rights secured by Title

VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 er seq.),

the Thirteenth Amendment, or the Fourteenth Amendment,

nothing contained in this stipulation shall prejudice the parties

plaintiff in proceeding with this action for the recovery of

damages claimed to flow from the violation or deprivation so

established.” (Emphasis added. )

The decision of the district judge in the case of United

States v. Black Jack was appealed to the Eighth Circuit Court

of Appeals and an opinion was filed by that court on December

27, 1974, 508 F. 2d 1179, cert. denied 422 U.S. 1042 (1975).

After certiorari was denied by the Supreme Court in United

States v. Black Jack, supra, the cause herein was set for trial on

November 10, 1975, and because of discovery problems was

reset for trial on January 12, 1976.

In United States v. Black Jack, the Eight Circuit Court of

Appeals determined that Zoning Ordinance No. 12 was shown

to have a racially discriminatory effect and was not justified by

any compelling governmental interest. It held at 508 F. 2d

1188, “that Zoning Ordinance No. 12 of the City of Black Jack

violates Title VIII, because it denies persons housing on the

basis of race, in violation of [42 U.S.C.] 3604(a), and inter-

feres with the exercise of the right to equal housing opportu-

A-4

nities in violation of [42 U.S.C.] 3617.” The Court of Appeals

did not, however, find any constitutional violations inasmuch as

the action was not brought under the Constitution. United

States v. Black Jack, supra, at 1184.

On December 12, 1975, the plaintiffs in this action filed an

amended complaint. In the prayer of their amended complaint,

plaintiffs requested the relief sought in their original complaint,

plus, plaintiffs, Park View Heights Corporation and Inter-

Religious Center for Urban Affairs, Inc., requested money

damages in the amount of $1,100,000.00 and such other actual

monetary damages as may accrue before final disposition of the

case.

On January 9, 1975, pursuant to the mandate of the Court

of Appeals in United States v. Black Jack, supra, this Court,

Judge Meredith presiding, entered an order declaring Zoning

Ordinance No. 12 to be unlawful under the Fair Housing Act,

and thus void. The Court also permanently enjoined the

defendant, City of Black Jack, its officers and employees from

enforcing Zoning Ordinance No. 12 or exercising any municipal

authority for the purpose or with the effect of obstructing the

construction of the Park View Heights development. All land

zoned for multiple dwelling prior to the incorporation of Black

Jack and the enactment of Zoning Ordinance No. 12 was

ordered to revert to the zoning classification which existed prior

to the city’s incorporation. Finally, the Court ordered, “‘[T]he

defendant City of Black Jack shall affirmatively take whatever

Steps are necessary to permit the construction and occupancy of

the proposed Park View Heights Development.”

On January 12, 1976 (the trial date in this case), the

parties in this action entered into a consent judgment, whereby

the defendant, City of Black Jack, would pay damages to the

Park View Heights Corporation in the amount of $450,000.00.

This consent judgment concluded the controversy between

plaintiffs, Inter-Religious Center for Urban Affairs, Inc. and the

Park View Heights Corporation, as against the defendants. The

consent decree further concluded any claim for damages on

A-5

behalf of the plaintiff class. The plaintiff class was not,

however, precluded from seeking any further injunctive or

declaratory relief—the issue presently before this Court. On

January 12, 1972, the plaintiff class was certified by the Court.

The class was identified as all individuals of low and moderate

income housing who would have been eligible for the Park

View Heights project.

The substance of plaintiffs’ argument is that the delay

involved in adjudicating the validity of Black Jack’s Zoning

Ordinance No. 12 has resulted in a considerable increase in

construction costs to a point where it is not presently feasible to

construct the proposed project. Plaintiffs assert that this

increased cost could not be recovered without bankrupting the

City of Black Jack. Therefore, the plaintiff class has requested

some remedial injunctive relief against the defendants to re-

dress its injuries. A trial was held on this matter on December

8, 1976. For the reasons stated below, plaintiffs’ request for

further injunctive relief will be denied.

Initially it should be noted that the decision contained

herein in no way affects, limits or modifies the order of Judge

Meredith made on January 9, 1975, in United States v. Black

Jack. That order provides all of the equitable relief that was

requested in plaintiffs’ complaints. Zoning Ordinance No. 12

has been declared unlawful and void. The defendants are

enjoined from enforcing Zoning Ordinance No. 12 or otherwise

obstructing the construction of the Park View Heights Devel-

opment. Judge Meredith’s order further requires the defend-

ants to take affirmative action to permit the construction of the

project. No legal or governmental impediments by the City of

Black Jack exist to prevent the construction of a low income

housing development on the land in question. Only the

economics of the situation bars construction. It is difficult for

this Court to perceive plaintiffs’ need for remedial injunctive

relief where piaintiffs have never requested such relief in a

complaint, and have already received by Judge Meredith’s

order the equitable relief they did request.

SEES

A-6

Plaintiffs seek to lay the blame upon the defendants for the

adverse economic factors which assertedly bar construction.

However, plaintiffs’ proof points the other way. The testimony

before the Court and the exhibits submitted indicate the cost of

the project in November of 1970 to be between $1,381,000 and

$1,696,000, exclusive of land costs. Costs of construction in

February of 1976 were estimated at $3,085,000. However,

other testimony indicated that compliance with new building

regulations to meet the Minimum Property Standards of the

Department of Housing and Urban Development represented

approximately twenty percent of this increase in costs. Other

changes in the applicable building codes and the National

Electric Code also required additional money to construct.

These increases in costs were due to factors which were totally

unforeseeable and beyond the control of the City of Black Jack.

Yet, despite the increase in costs, the most significant factor

barring construction was the inability to secure an increase in

federal subsidies. In 1970, the Park View Heights project had

tentatively obtained a mortgage subsidy through the Depart-

ment of Housing and Urban Development under Section 236 of

the National Housing Act. Section 236 of the National Housing

Act was enacted by Congress in 1968. It provides for federal

assistance in the form of monthly interest reduction payments

calculated to reduce the mortgage obligations of the owner of

an approved project to the amount that would have been

required for principal and interest if the mortgage bore interests

at one percent. By 1976 a moratorium was placed on new §236

projects and no additional subsidy could be obtained beyond

the original amount set aside by HUD. The discontinuance of

§236 programs by HUD was also unforeseeable and beyond

the control of the defendants.

Injunctive relief will be refused until the Court is satisfied

that the plaintiffs will suffer a substantial irreparable injury

brought about by an illegal act by the defendants. Detroit News

Publishing Ass’n v. Detroit Typographical Union No. 18, 471 F.

2d 872, 876 (6th Cir.), cert. denied 411 U. S. 967 (1973).

A-7

Concededly the necessity of bringing litigation to invalidate the

defendants’ illegal Zoning Ordinance No. 12 provided an

opportunity whereby HUD could add to the building codes and

restrict the amount of mortgage subsidy available so as to

effectively destroy the construction project. However, equity

follows the law. Burchfield v. Evans, 242 F. 2d 239 (10th Cir.

1957); Kenyon v. Automatic Instrument Co., 160 F. 2d 878, 884

(6th Cir. 1947). The law does not hold an actor responsible for

injuries resulting from an intervening and independent cause

which so interrupts the chain of events as to become the

responsible proximate cause, rendering the prior act too remote

to operate as the proximate cause. Morrow v. Greyhound Lines,

Inc., 541 F. 2d 713, 719 (8th Cir. 1976); Johnson v. Serra, 52)

F. 2d 1289, 1292 (8th Cir. 1975). Plaintiffs have cited no cases

to this Court wherein a party was held liable for intervening

governmental acts which increased costs or reduced subsidies to

the plaintiffs. This Court holds that the actions of HUD and

some of the other economic factors which have destroyed the

feasibility of this project constitute independent intervening

causes of plaintiffs injury and are beyond the legal and

equitable responsibility of the defendants.

With respect to the relief sought, plaintiffs have made

several suggestions to this Court as to the various remedies

available. Plaintiffs have proposed inter alia: That the defen-

dant City be required to adopt an inclusionary zoning ordi-

nance which would require a certain percentage of all housing

development be low and moderate income units, to be built

concurrently with other dwelling units; or that the defendant

City be required to adopt a density bonus allowing developers

to build more densely if low income units are included; or that

the defendant City be required to create its own housing

authority to develop a “section 8” housing program under 42

U.S.C. § 1437f. Plaintiffs have, however, submitted no evidence .

as to the feasibility or efficacy of any one of the suggested

remedies. This Court has no way of determining whether any

of the suggested remedies will achieve the goals desired by -

A-8

plaintiffs or result in an adverse impact on the surrounding

community. A court will refrain from issuing an injunction,

“unless the injunction will be effective to prevent the damage

which it seeks to prevent.” Humble Oil & Refining Co. v.

Harang, 262 F. Supp. 39, 43-44 (E.D. La. 1966); Great

Northern Ry. Co. v. Lumber & Sawmill Workers, 140 F. Supp.

393, 396 (D. Mont.) aff'd 232 F. 2d 628 (9th Cir. ), cert. denied

352 U. S. 837 (1956). Injunctive relief may be denied where

the order would work a hardship on third parties. Middletown

Mfg. Co. v. Super Sagiess Corp., 382 F. Supp. 979, 983 (N.D.

Miss. ), aff'd 515 F. 2d 509 (Sth Cir. 1975).

Plaintiffs also suggest that the Court defer to the expertise

and discretion of local Black Jack officials in choosing and

implementing the remedy desired. It is unclear to this Court

how such a remedy will be enforceable once ordered. Difficulty

of enforcement is in itself often a sufficient reason for denying

injunctive relief. Refrigeration Engineering Corp. v. Frick Co.,

370 F. Supp. 702, 715 (W.D. Tex. 1974); Automatic Radio

Mfg. Co. v. Ford Motor Co., 272 F. Supp. 744, 749 (D. Mass. ),

aff'd 390 F.2d 113 (Ist Cir. ); cert. denied 391 U.S. 914 (1968).

The power to grant injunctive relief should be exercised

sparingly and with great caution, and only where the reason

and necessity therefor are clearly established. Castro v. Bee-

cher, 386 F. Supp. 1281, 1284 (D. Mass. 1975); Coleman v.

Aycock, 304 F. Supp. 132, 140 (N.D. Miss. 1969). For an

injunction to issue the right must be clear and the injury

impending or threatened so as only to be averted by injunctive

relief. An injunction will not be awarded in doubtful cases not

coming within well established principles. Detroit News Pub-

lishing Ass’n v. Detroit Typographical Union No. 18, supra.

Plaintiffs have not presented such a compelling case so as to

clearly warrant the remedial relief requested. The need for

further relief has not been clearly established. Further, this

Court is reluctant to hold the defendants liable for the vagaries

of federal housing codes and subsidies. it is not at all clear that

_ any of the remedies suggested would eliminate the economic

A-9

barriers which prevent construction. The project needs addi-

tional funding, yet all of the parties have settled their claims for

damages by a consent decree.

Even if the above-noted defects in plaintiffs’ request for

additional relief did not exist, this Court would still be con-

strained by the fundamental limitations on the equity powers of

the Federal courts. The power to grant remedial injunctive

relief which interferes with the operation of a local govern-

mental entity is not plenary. It “may be exercised ‘only on the

basis of a constitutional violation.’ ” Hills v. Gautreaux, 425 U.

S. 284, 293 (1976); Milliken v. Bradley, 418 U.S. 717, 738

(1974); Swann v. Board of Education, 402 U.S. 1, 16 (1971).

Such a doctrine is applicable to actions brought under Title VIII

of the Civil Rights Act. Hills v. Gautreaux, supra; Garrett v.

Hamtramck, 503 F. 2d 1236, 1247 (6th Cir. 1974). Thus the

power of this Court to issue remedial injunctive relief which

interferes with local autonomy in decision-m: %.uZ exists only

where a constitutional violation is present. However, no

constitutional violation was found in United States v. Black

Jack, supra, and the parties stipulated to be bound by the

determination in that action as to whether the challenged

conduct of the defendants violated plaintiffs’ constitutional

rights. In Garrett v. Hamtramck, supra, at 1247, the court relied

upon the constitutional violations found therein, and dis-

tinguished the statutory violations, to justify the remedial

provisions of the court’s order. Statutory violations alone do

not constitute a sufficient basis upon which remedial injunctive

relief may be granted. Consequently, this Court is without the

power to order the remedial injunctive relief requested by

plaintiffs.

Accordingly, plaintiffs’ request for further injunctive relief

will be DENIED.

The Court adopts this memorandum opinion as its findings

of fact and conclusions of law and the clerk of the Court is

directed to prepare and enter the proper judgment as outlined

above.

B-1

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 78-1660

The Park View Heights Corporation, The Inter-Religious Cen-

ter for Urban Affairs, Inc.

Barbara Bates, Nancy Billings, Robert Billings, Charlotte

French, Jose French, Kermit Guy, Ella Mae Johnson and

Raymond Johnson, on their own behalf and on behalf of all

others similarly situated,

Appellants,

The City of Black Jack,

Appellee,

Keith J. Barboro, individually and as Mayor of the City of

Black Jack, Robert Schuchardt, individually and as Chairman

of the Zoning Commission of the City of Black Jack, Herbert

Bangert, Mrs. Noah Epley, James Connolley, Harold Evange-

lista, Joan Kessler, G. Joe Schulte, Albert N. Schroeder and

Alden Williams,

The Black Jack City Council,

Appellee,

Gilbert Begeman, Donald Bressler, Judy Henke, Robert Hoyt,

William Hunder, Gerald Hutton, Karin Schmiedler, Henry

Sewing, George Urlich, Willard Volentine and Clarence

Thomas,

The Zoning Commission of

the City of Black Jack,

Appellee.

Appeal from the United States District Court for the Eastern

District of Missouri.

Submitted: January 10, 1979

Filed: August 28, 1979

Before Lay, BRIGHT and STEPHENSON, Circuit Judges.

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Lay, Circuit Judge.

In 1969, the Inter-Religious Center for Urban Affairs

(ICUA) began planning Park View Heights, a racially in-

tegrated town-house development under Section 236 of the

National Housing Act, 12 U.S.C. § 1715z-1 (1968), which was

to be located on an appropriately zoned tract of land in a then

virtually all white unincorporated area of St. Louis County,

Missouri. The development received preliminary 2pproval from

the United States Department of Housing and Urban Devel-

opment (HUD); however, opposition arose among area citi-

zens, who thereafter took the necessary steps to incorporate a

new municipality, named Black Jack. That city became a legal

entity in August 1970 and immediately created a planning and

zoning commission. In October 1970, Black Jack enacted a

zoning ordinance which barred all further apartment construc-

tion and made existing apartments non-conforming uses.

In a suit brought by the United States in 1974, this court

held enactment of the zoning ordinance had a racially dis-

criminatory effect and the City of Black Jack failed to prove

enactment of the ordinance was necessary to promote a com-

pelling governmental interest. United States v. City of Black

Jack, 508 F.2d 1179 (8th Cir. 1974), cert. denied, 422 US.

1042 (1975).

The Park View Heights Corporation, ICUA, and eight

prospective residents of Park View Heights suing as a class, had

also brought suit against Black Jack and several of its officials,

seeking to invalidate the zoning ordinance. After this court’s

decision in the suit brought by the United States, plaintiffs Park

View Heights Corporation and ICUA amended their complaint

to seek relief in damages as well as equitable relief.’ Trial on

the amended complaint was scheduled for January 1976. On

' This court had earlier reversed a district court ruling that the

individual plaintiffs and ICUA lacked standing to challenge the

ordinance. Park View Heights Corp. v. City of Black Jack, 467 F.2d

1208 (8th Cir. 1972). On remand the parties stipulated they would be

bound by final disposition of the Government’s suit, in which the

ordinance was found to be illegal.

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the proposed trial date, however, a consent judgment was

entered under which Black Jack agreed to pay $450,000 in

damages to Park View Heights Corporation and ICUA to

resolve the controversy. The consent decree precluded any

claim for damages on behalf of the class of prospective

residents of Park View Heights, but did not prohibit further

declaratory or equitable relief on their behalf.

On October 29, 1976, the plaintiff class moved for per-

manent injunctive relief. It requested defendants be directed

“to undertake measures whereby it can reasonably be expected

that, within a reasonable time, in the City of Black Jack, there

will be available for multi-racial, moderate-income occupancy,

at least 108 dwelling units, roughly comparable in size, number

of bedrooms, and quality to those which would have been

constructed in Phase I of the Park View Heights Project.”

On July 10, 1978, the district court denied the plaintiff class

any form of relief. Park View Heights Corp. v. City of Black

Jack, 454 F. Supp. 1223 (E.D. Mo. 1978). This appeal

followed; we reverse and remand for further proceedings.

Proper Standard For Awarding Equitable Relief.

The plaintiff class contends the appropriate standard to

determine the scope of equitable relief for violation of the Fair

Housing Act, Title VIII of the Civil Rights Act of 1968, 42

U.S.C. § 3601 et seq., was set forth by the Supreme Court in

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975):

Where racial discrimination is concerned, “the [ dis-

trict] court has not merely the power but the duty to

render a decree which will so far as possible eliminate

the discriminatory effects of the past as well as bar

like discrimination in the future.” Louisiana v. United

States, 380 U.S. 145, 154 (1965). And where a legal

injury is of an economic character,

“[t]he general rule is, that when a wrong

has been done, and the law gives a remedy,

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the compensation shall be equal to the

injury. The latter is the standard by which

the former is to be measured. The injured

party is to be placed, as near as may be, in

the situation he would have occupied if the

wrong had not been committed.” Wicker v.

Hoppock, 6 Wall. 94, 99 (1867).

Id. at 418-19.

We agree with the plaintiff class that it is entitled to relief

which “will so far as possible eliminate the discriminatory

effects of the past.” Id.; United States v. West Peachtree Tenth

Corp., 437 F.2d 221, 228 (Sth Cir. 1971); United States v.

Warwick Mobile Homes Estates, 558 F.2d 194, 197 (4th Cir.

1977). In fashioning equitable relief to eliminate dis-

criminatory effects, courts must be guided by the provisions and

purposes of the Fair Housing Act. Cf. Teamsters v. United

States, 431 U.S. 324, 364 (1977) (Title VII); Albemarle Paper

Co. v. Moody, 422 U.S. at 417 (Title VII). The primary

objective of Title VIII is, as Vice-President Mondale said, when

a Senator, to replace the ghettos “by truly integrated and

balanced living patterns.” 114 Cong. Rec. 3422 (1968). This

objective is one “ ‘that Congress considered to be of the highest

priority,’ Trafficante v.. Metropolitan Life Ins. Co., 409 U.S.

205, 211 (1972), and in order to achieve it, courts must

construe the provisions of Title VIII broadly. Resident Advisory

Bd. v. Rizzo, 564 F.2d 126, 147 (3d Cir. 1977), cert. denied,

435 U.S. 908 (1978); Mayers v. Ridley, 465 F.2d 630, 635

(D.C. Cir. 1972) (en banc); see also Trafficante v. Metropoli-

tan Life Ins. Co., 409 U.S. at 211.

Section 812 of the Fair Housing Act, 42 U.S.C. § 3612(c),

provides in pertinent part:

The court may grant as relief, as it deems appropri-

ate, any permanent or temporary injunction, tempo-

rary restraining order, or other order, and may award

to the plaintiff actual damages and not more than

LLL SL

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$1,000 punitive damages, together with court costs

and reasonable attorney fees in the case of a pre-

vailing plaintiff. . . .

Construed broadly, this section gives the district court the

power it needs to fashion affirmative equitable relief calculated

to eliminate as far as possible the discriminatory effects of

violation of the Fair Housing Act.

In fashioning such affirmative equitable relief for civil

rights violation, courts are governed by traditional principles of

equity. Teamsters v. United States, 431 U.S. at 374-75. In

Lemon v. Kurtzman, 411 U.S. 192 (1973), Chief Justice Burger

wrote:

[E]quitable remedies are a special blend of what is

necessary, what is fair, and what is workable.

“Traditionally, equity has been characterized by a

practical flexibility in shaping its remedies and by a

facility for adjusting and reconciling public and pri-

vate needs.” Brown v. Board of Education, 349 US.

294, 300 (1955). Mr. Justice Douglas, speaking for

the Court, has said,

“The essence of equity jurisdiction has

been the power of the Chancellor to do

equity and to mould each decree to the

necessities of the particular case. Flexibility

rather than rigidity has distinguished it.

The qualities of mercy and practicality

have made equity the instrument for nice

adjustment and reconciliation between the

public interest and private needs as well as

between competing private claims.”

Hecht Co. v. Bowles, 321 U.S. 329-330 (1944).

See also Holmberg v. Armbrecht, 327 U.S. 392, 396

(1946).

Id. at 200-01.

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With these principles in mind, we now consider the district

court’s reasons for denying relief.

The District Court Opinion.

At trial, the plaintiff class sought equitable relief on the

ground that the City of Black Jack was directly responsible for

failure of the Park View Heights project because enactment of

the zoning ordinance prevented the construction planned in

1971 and building costs markedly ‘-reased during the long

litigation, ultimately making construction of the housing project

impossible.2 The district court rejected this contention, finding

the City was not responsible for unforeseeable economic factors

that came into existence subsequent to enactment of the zoning

ordinance and contributed to the increase in construction costs.

Chief among these were:

1. new building regulations enacted to meet the

Minimum Property Standards of HUD;

2. other changes in applicable building codes and the

National Electric Code; and

3. a moratorium placed on additional mortgage sub-

sidies from HUD under Section 236 of the National

Housing Act.

The court went on to hold that:

The law does not hold an actor responsible for

injuries resulting from an intervening and independ-

ent cause which so interrupts the chain of events as to

become the responsible proximate cause, rendering

the prior act too remote to operate as the proximate

cause. Morrow v. Greyhound Lines, Inc., 541 F.2d

713, 719 (8th Cir. 1976); Johnson v. Serra, 521 F.2d

2 According to evidence presented by the plaintiff class, the

projected contract price in 1970 for construction of the 108 units was

$1,381,000. By February 1976, the projected price had risen to

$3,085,274.

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1289, 1292 (8th Cir. 1975). Plaintiffs have cited no

cases to this Court wherein a party was held liable for

intervening governmental acts which increased costs

or reduced subsidies to the plaintiffs. This Court

holds that the actions of HUD and some of the other

economic factors which have destroyed the feasibility

of this project constitute independent intervening

causes of plaintiffs injury and are beyond the legal

and equitable responsibility of the defendants.

454 F. Supp. at 1227.3

Although it is generally said that equity follows the law, we

find it somewhat disturbing to believe in this day that equitable

relief under the Fair Housing Act to correct racial dis-

crimination is governed by rhetorical application of common

law tort principles. Under our analysis of the scope of equitable

relief under the Fair Housing Act, assuming the plaintiff class

proved that the demise of the Park View Heights project was a

discriminatory effect of defendants’ violation, intervening eco-

nomic factors should not be sufficient to relieve defendants of

liability, but rather constitute factors affecting the breadth of

equitable relief granted. In other words, they are possible

factors to be reconciled with the plaintiff class’ right to relief.

Lemon v. Kurtzman, 411 U.S. at 200.

The threshold question, then, is whether the plaintiff class

established that the demise of the Park View Heights project

$The plaintiffs and the United States, appearing as amicus

curiae, counter with the Restatement of Torts which reads:

Where the negligent conduct of the actor creates or

increases the risk of a particular harm and is a substantial

factor in causing that harm, the fact that the harm is

brought about through the intervention of another force

does not relieve the actor of liability, except where the

harm is intentionally caused by a third person and is not

within the scope of the risk created by the actor’s conduct.

Restatement (Second) of Torts § 442B (1965).

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was a discriminatory effect of enactment of the zoning ordi-

nance. Defendants argue vigorously that the plaintiff class did

not meet its burden. They argue that the class was made whole

by the order entered by Judge Meredith on remand, after this

court reversed the lower court ruling upholding the ordinance in

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

1974), cert. denied, 422 U.S. 1042 (1975). Judge Meredith’s

January 9, 1975 order reads:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as

follows:

1. So much of Zoning Ordinance No. 12 of the City of

Black Jack, enacted on or about October 20, 1970, as

purports to change the zoning classification of land pre-

viously zoned for multiple-family occupancy is hereby

declared to be in violation of the Fair Housing Act of 1968,

42 U.S.C. 3601, et seq., and consequently to be void and

unenforceable.

2. The defendant City of Black Jack, its officers,

employees, agents, and successors, and all those in active

concert or participation with any of them, are hereby

permanently enjoined from

(a) enforcing, implementing, or giving any force

or effect to Zoning Ordinance No. 12 of the City of

Black Jack, insofar as it purports to affect the zoning

classification of land previously zoned for multiple-

family occupancy;

(b) exercising any municipal authority for the

purpose or with the effect of preventing or impeding

the construction or occupancy of the proposed Park

View Heights development;

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

national origin;

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(d) otherwise interfering with the exercising or

attempted exercise by any person of any right secured

by the Fair Housing Act of 1968, 42 U.S.C. 3601, et

seq.

3. The defendant City of Black Jack shall affirma-

tively take whatever steps are necessary to permit the

construction and occupancy of the propose [sic], Park

View Heights Development.

4. In view of the invalidation of the pertinent portions

of Zoning Ordinance No. 12 by the decision of the United

States Court of Appeals, the classification of all land zoned

for multiple-family dwellings prior to the incorporation of

Black Jack and the enactment of Zoning Ordinance No. 12

shall, until further order of this Court, revert to the zoning

classification existing prior to said incorporation and enact-

ment.

According to defendants, once the zoning ordinance was

invalidated, the class was in the legal position it had been in

prior to enactment of the ordinance, and was therefore made

whole. We cannot agree. There can be no doubt that failure of

the Park View Heights project was a direct result of defendants’

violation of the Fair Housing Act. The record reflects that in

1970 an option on the land had been acquired and the

necessary federal preliminary approval, which included a set-

aside of government funds sufficient to finance the projected

cost of the project, had been obtained. United States v. City of

Black Jack, 508 F.2d 1182. At the trial, the general contractor

for the project, Arthur Monsey, testified that by late 1970, he

had arrived at a firm figure of $1,381,000 as the cost of the 108

unit project, was prepared to enter into a contract with the

sponsor of the project at that price, and was ready to commence

construction in late 1971. On the basis of this evidence, we

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think it clear that absent enactment of the discriminatory zoning

ordinance, the project would have been constructed as

planned.4

To ignore this very real effect of defendants’ violation

would be, as counsel for the United States argues, to leave the

plaintiff class “with a 1971 key long after the lock has been

changed.” It is clear enactment of the zoning ordinance quite

predictably delayed any possibility the project would be con-

structed; the rise in construction costs during the delay was both

inevitable and foreseeable. Furthermore, it is obvious the

plaintiff class still suffers a significant deprivation because of

non-availability of 108 housing units in an integrated setting in

St. Louis County.

Under these circumstances, we hold the demise of the Park

View Heights project was a discriminatory effect within the

provisions and purposes of the Fair Housing Act, and that the

district court should not have relieved defendants of liability

because of the existence of intervening economic factors.5

4 This conclusion is further corroborated by this court’s previous

observation in United States v. City of Black Jack:

Opposition to Park View Heights was repeatedly expressed

in racial terms by persons whom the District Court found

to be the leaders of the incorporation movement, by

individuals circulating petitions, and by zoning commis-

sioners themselves. Racial criticism of Park View Heights

was made and cheered at public meetings. The uncon-

tradicted evidence indicates that, at all levels of opposition,

race played a significant role, both in the drive to in-

corporate and the decision to rezone.

508 F.2d at 1185, n.3.

5 The district court also denied relief because, “[s]tatutory

violations alone do not constitute a sufficient basis upon which

remedial injunctive relief may be granted.” Park View Heights Corp.

v. City of Black Jack, 454 F. Supp. at 1228. We hold this reasoning to

be erroneous. The district court has the power to order remedial

injunctive relief to redress violations of the Fair Housing Act so long

as the relief granted is not more extensive than is necessary to cure the

violation. 42 U.S.C. § 3612(c); Resident Advisory Bd. v. Rizzo, 564

F.2d 126, 149 (3d Cir. 1977), cert. denied, 435 U.S. 908 (1978).

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As an additional reason for denying relief, the district court

held that:

Plaintiffs have not presented such a compelling case

so as to clearly warrant the remedial relief requested.

The need for further relief has not been clearly

established .... It is not at all clear that any of the

remedies suggested would eliminate the economic

barriers which prevent construction. The project

needs additional funding, yet all of the parties have

settled their claims for damages by a consent decree.

454 F. Supp. at 1227-28.

We must again respectfully disagree. As we pointed out

above, the class has shown it suffers a significant deprivation

because of the absence of low cost housing in Black Jack, which

is the effect of defendants’ discriminatory conduct. Thus the

need for further relief has been established.

Remedy.

We hold also that the district court abused its discretion in

denying relief on the ground that it was not convinced of the

merits of the suggested remedy. The class sought an injunction

ordering Black Jack to undertake measures “whereby it can

reasonably be expected that, within a reasonable time, in the

City of Black Jack, there will be available for multi-racial,

moderate-income occupancy, at least 108 dwelling units... .”

The class intentionally made the wording of the proposed

injunction vague, contending that the burden should be placed

on the defendants to propose a plan for making 108 units

available within a reasonable time. The class did, however,

Suggest several methods by which Black Jack might accomplish

this without expenditure of its own funds. These included: the

adoption of an “inclusionary zoning ordinance,” which would

require future land developers to provide a specified percentage

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of low and moderate income housing units in their devel-

opments;® adoption of “density bonuses,” which induce devel-

opers to provide low and moderate income dwelling nits by

permitting more dense development of land if such units are

included; establishment of “set-aside” or “override” procedures

which waive some building or zoning requirements for devel-

opers of low and moderate income housing; and development

of a low rent public housing program pursuant to 42 U.S.C.

§ 1437 et seq., or a Section 8 housing program pursuant to 42

U.S.C. § 1437f.

The court rejected the contention that the burden should

be placed on the defendants to propose a suitable remedy.

Under the circumstances of this case, we agree that responsi-

bility should be placed on the plaintiff class to come forward

with a proposed plan for the construction of housing. Black

Jack has already paid $450,000 in damages to Park View

Heights Corporation and ICUA. It has no liability in damages

to the plaintiff class. It does not have the means to build the

low and moderate income housing entirely on its own. How-

ever, the district court’s rejection of the broad remedy proposed

by the plaintiff class should not relieve it of the responsibility of

considering other forms of relief requested by the class, or some

other equitable alternative.

We remand this case for the district court to further

consider the award of equitable relief. It is not the function of

this court to determine the equitable relief; under the provisions

of 42 U.S.C. § 3612(c) that discretion is vested in the district

court. However, for the guidance of the district court and the

parties, we set forth the following comments:

1. In exercising its discretion to fashion an equitable

remedy, the district court must be ever mindful of the

6 This alternative appears more desirable than the density bo-

nuses or “override” procedures, which often tend to become self-

defeating. The greater the density, the more difficulty there is in

maintaining the project.

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important national goals at stake, and must exercise its

discretion in light of the purposes of the Fair Housing Act.

Albemarle Paper Co. v. Moody, 422 U.S. at 416-17. The

City of Black Jack has violated the Fair Housing Act and

has been instrumental in the failure of the Park View

Heights project. We can think of no reason why, in order

to remedy its violation, the City should not be required to

take affirmative steps along with the plaintiff class in its

efforts to bring low cost housing to Black Jack.

2. At the same time, however, the district court should

not order relief that is more intrusive on governmental

functions than is necessary to achieve the goals of the Fair

Housing Act. Resident Advisory Bd. v. Rizzo, 564 F.2d at

149; United States v. West Peachtree Tenth Corp., 437

F.2d at 228-29; United States v. Warwick Mobile Homes

Estates, 558 F.2d at 197.

3. In order to devise a remeay for violation of the Fair

Housing Act which will not be too intrusive on Black Jack’s

governmental functions, we suggest the district court meet

with both parties and propose joint conferences over a

period of time sufficient to allow the parties to reach a

definite plan to cooperatively obtain the goal sought.

Twice the United States has appeared as amicus curiae;

representatives of the United States and HUD should be

requested to participate in such conferences. Only upon

failure of these conferences should the court undertake to

formulate a decree itself.

4. Before any development can take place, there must

be land available upon which to build the housing. The

court should consider the City’s duty to seek out and make

land sites available for purchase by the plaintiff class that

are properly zoned and so located with reference to public

facilities and services as to meet established criteria for low

and moderate income family housing.

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5. During oral argument before this court, the

attorney for the plaintiff class indicated that under appro-

priate circumstances, the plaintiff class would be willing to

undertake the responsibility to find a developer and

present a plan to the City of Black Jack for construction of

moderate and low income housing. The class has been

unwilling to assume this responsibility in part because, as

the attorney for the class stated:

No developer in his or her right mind at this

point in time would go into the City of Biack

Jack and attempt to build low and moderate

income housing, ... because the City of Black

Jack has indicated its powerful and abiding

hostility to such projects.

Judge Meredith made it clear in his 1975 opinion that

Black Jack has the duty to cooperate with the plaintiff class in

its efforts to construct low and moderate income housing within

the boundaries of Black Jack. This court now seeks on remand

of this case to give teeth to that decree. Therefore, no

developer should be reluctant to consider a project within the

boundaries of the City of Black Jack because of possible local

governmental opposition.

We are hopeful that, upon remand of this case, the Parties

will finally reach a meeting of the minds and put an end to this

long and bitterly fought conflict. As costs of construction

continue to spiral upward, it becomes more and more difficult

to remedy the wrong done to the plaintiff class.

Reversed and remanded.

A true copy.

Attest:

CLERK, U. S. Court oF APPEALS, EIGHTH CIRCUIT.

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APPENDIX C

JUDGMENT

(Filed October 1, 1979)

UNITED STATES COURT OF APPEALS

FOR THE EIGHT CIRCUIT

[CAPTION OMITTED IN PRINTING ]

Appellee.

This Cause came on to be heard on the record of the

United States District Court for the Eastern District of Missouri

and briefs of the respective parties and was argued by counsel.

On Consideration Whereof, it is now here ordered and

adjudged by this Court that the judgment of the said District

Court in this cause be and the same is hereby reversed.

And it is further order by this Court that this cause be and

is hereby remanded to the said District Court for proceedings

consistent with the opinion of this Court.

August 28, 1979

A true copy.

Attest: [Illegible signature ]

U.S. Court of Appeals, 8th Circuit.

September 27, 1979

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APPENDIX D

UNITED STATES COURT OF APPEALS

For THE EIGHTH CIRCUIT

[CAPTION OMITTED In PRINTING ]

The Court having considered petition for rehearing en

banc filed by counsel for appellees and, being fully advised in

the premises, it is ordered that the petition for rehearing en

banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition

for rehearing, it is ordered that the petition for rehearing also

be, and it is hereby, denied.

October 3, 1979

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APPENDIX E

UNITED STATES District CouRT

EASTERN DISTRICT OF MISSOURI: EASTERN DIVISION

Civil Action

No. 71-C-15(A)

THE PARK VIEW HEIGHTS CORPORATION, et al.,

Plaintiffs,

VS.

THE City OF BLACK JACK, et al.,

Defendants.

STIPULATION

(Filed Sep. 19, 1974)

It is hereby stipulated and agreed by and between the

attorneys for the parties in the above-styled action that:

(1) With the Court’s consent, this action is to be

adjourned until the final disposition of United States v.

City of Black Jack (E.D.Mo., East. Div., 71 C 372(1));

(2) Should the United States in its capacity as plain-

tiff in United States v. City of Black Jack fail to establish

that the challenged conduct of the City of Black Jack

constitutes a violation or deprivation of rights secured by

Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601

et seq.) the Thirteenth Amendment, or the Fourteenth

Amendment, with the consent of the Court this action is to

be dismissed and

(3) Should the United States in its capacity as plain-

tiff in United States v. City of Black Jack, establish that the

challenged conduct of the City of Black Jack constitutes a

E-2

violation or deprivation of rights secured by Title VIII of

the Civil Rights Act of 1968 (42 U.S.C. 3501 et seq.), the

Thirteenth Amendment, or the Fourteenth Amendment,

nothing contained in this stipulation shall prejudice the

parties plaintiff in proceeding with this action for the

recovery of damages claimed to flow from the violation or

deprivation so established.

Dated: September 6, 1974

LAWRENCE G. SAGER

ARTHUR N. EISENBERG

Attorneys for Plaintiffs

Roy W. BERNMANN

Roy W. BERGMANN

SHELDON K. Stock

Attorneys for Defendants

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