Opposition — City of Black Jack v. Bates

FEB 4 1980

IN THE Sai K, JR. CLERK

Supreme Court of the United States

OcTOBER TERM 1979

No. 79-1043

>

THE City oF BLACK JACK,

A Municipal Corporation, et al.,

Petitioners,

—_—Vi—

BARBARA BATES, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

LAWRENCE G. SAGER

ARTHUR EJSENBERG

New York Civil Liberties

Union

84 Fifth Avenue

New York, New York 10011

MARTIN E. SLOANE

BRUCE GELBER

National Committee Against

Discrimination in Housing, Inc.

1425 H Street, N.W.,

Suite 410

Washington, D.C. 20005

Attorneys for Respondents

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-1043

THE CITY OF BLACK JACK,

A Municipal Corporation, et al.,

Petitioners,

Vv.

BARBARA BATES, et al.,

Respondents.

On Petition For A Writ of Certiorari To The

United States Court of Appeals

For The Eighth Circuit

RESPONDENTS' BRIEF IN OPPOSITION

—

INDEX

Page

TABLE OF AUTHORITIES iii

QUESTION PRESENTED 1

STATEMENT OF THE CASE 2

REASONS WHY THE WRIT SHOULD BE

DENIED 8

I. THIS CASE PRESENTS NO ISSUE

OVER WHICH THE COURT SHOULD

EXTEND ITS DISCRETIONARY

REVIEW. THE CLAIMS UPON

WHICH THE CITY OF BLACK

JACK IS FORCED TO RELY ARE

ALTERNATIVELY PREMATURE OR

FANCIFUL 8

A. The objections of the

City of Black Jack to

the decision below

reduce to the claim

that the City will be

subjected to unduly

burdensome equitable

relief at some point in

the future or to the

claim that no award of

equitable relief against

the City is appropriate. 8

B. The claim that the City

may be subjected to unduly

burdensome equitable

relief is premature. 10

C. The proposition that the

federal courts suffer a

constriction of their

remedial authority when

they are acting pursuant

to civil rights legislation

is unsupportable. 12

D. Black Jack's invocation

of National League of

Cities v. Usery lacks

analytical foundation. 13

II. THERE IS NO CONFLICT BETWEEN

THE DECISION BELOW AND THE

DECISIONS OF THIS COURT OR

THOSE OF ANY COURTS OF APPEALS 15

CONCLUSION a?

ii

TABLE OF AUTHORITIES

Page(s)

CASES:

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975). .cccccccesese 9, 13

Bell v. Hood, 327 U.S. 677 (1946)... 12

Bivens v. Six Unknown Agents, 403

7.3. 306 t(hOThi.« us seb ewcereneve 2

Firefighters Institute v. City of

St. Louis, 588 F. 2d 235

(8th Cir. 1978), cert. denied

U.S. _, 99 S. Ct. 3096

TISTSN 0 cap 60cKs 0s eee eee 48

Fitzpatrick v. Bitzer, 427 U.S.

445 (1976) ceccneeeessevedecsaeees 12

Franks v. Bowman Transportation Co.,

424 U.S. 747 (1976) -cowsiccwosccee Dy 28

Garrett v. City of Hamtramck, 503

FP. 24 1236 (6th Cir. 1974)...e0e- 15, 16

Hills v. Gautreaux, 425 U.S. 284

(1976) ~cccccccccceccccccseccsesere 15, 16

Horry County v. United States, 449

F. Supp. 990 (D.D.C. 1978)

(three-judge COUrt).....eeeeeeees 13

International Brotherhood of

Teamsters v. United States, 431

0.6. SBE LA8TT) os vikn sda ciennsanccs 3

iii

Page(s)

Katzenbach v. Morgan, 384 U.S. |

O63: (2906) cvs ct uneuees eaves awene 12 | United States v. West Peachtree

| Tenth Corp., 437 F. 2d 221

Lau v. Nichols, 414 U.S. 563 (1974)... 13 | (Sth CA. BOE co svscccevsevescesvces 13

Louisiana v. United States, 380 U.S. | Watson v. Buck, 313 U.S. 387 (1941).. 11

145 (1965) 202 bs0s see cssersasee ¥

Wicker v. Hoppock, 6 Wall. 94 (1867). 9

Milliken v. Bradley, 418 U.S. 717

C978) oc ccceeccwen cians ee on ihenk eee oe

STATUTE:

Moore v. Townsend, 525 F. 2d 482

(7th Cie DOPE ss tec acsaesces ere e Title VIII of the Civil Rights Act

of 1968, 42 U.S.C. §3601 et seq. passim

National League of Cities v. Usery,

426 U.S. G33 3d vce ce ve ewescess Boe. 34

Park View Heights Corp. v. City of

Black Jack, 605 F. 2d 1033 (8th

Cit LOTS) oo a0 0c 8S OEE e CREO 4, Sy

Resident Advisory Board v. Rizzo,

564 F. 2€ 126 (3rd Cir. 1977),

cert. denied, 435 U.S. 908 (1978). 13

Rizzo v. Goode, 423 U.S. 362 (1972).. 15, 16

Swann v. Charlotte-Mecklenburg Board

of Education, 412 U.S. 1 (1971)... 15, 16

United States v. City of Black Jack,

508 F. 24 1179 (8th Cir. 1974).... 4, 5, 6

United States v. City of Chicago, 549

F. 2d 415 (7th Cir. 1977), cert.

denied, 434 U.S. 875 (1977)..... o« 33

iv

QUESTION PRESENTED

The City of Black Jack has violated

Title VIII of the Civil Rights Act of 1968,

and in so doing, has caused the demise of |

the Park View Heights project. The Eighth

Circuit Court of Appeals has directed the

District Court to supervise settlement

negotiations and, if necessary, to enter

injunctive relief aimed at redressing the

loss of housing opportunity occasioned

by the City's illegal and discriminatory

conduct. In advance of any order entered

against it, and with only the very general

and unexceptional guidelines of the Court

of Appeals to complain of, the City has

sought the review of this Court.

Accordingly, claims about the actual

relief which may be granted by the District

Court are premature. The only question

which presents itself for review at this

point is whether, as the City of Black

Jack maintains, any form of equitable

redress levied against it would be inappro-

priate, notwithstanding the City's conceded

violation of Title VIII of the Civil Rights

Act of 1968 and the resulting loss of vital

housing opportunity to the plaintiff class.

2

STATEMENT OF THE CASE

A fair picture of the instant controversy

requires that petitioners' statement of the

case be augmented in at least four respects.

First, the incorporation of the City of

Black Jack and the enactment of Zoning

Ordinance No. 12 were the culminating

events in a campaign of local opposition to

the construction of the Park View Heights

project. Responding to uncontroverted

evidence to this effect, the Eighth Circuit

Court of Appeals has sketched this picture

in some detail:

"In 1969, the Inter Religious

Center for Urban Affairs (ICUA)

began planning Park View Heights

to create alternative housing

opportunities for persons of low

and moderate income living in

the ghetto areas of St. Louis.

After a search for an appropriate

site, ICUA settled on 11.9 acres

on Old Jamestown Road, then in

an unincorporated area, but now

within the City of Black Jack.

The site was designated for

multiple-family structures. An

option was obtained on the land,

and in March, 1970, the spon-

sors filed a preliminary appli-

cation with the Federal Housing

Administration for initial

approval of a proposed §236

development. The original plans

envisioned 108 units comprised

of two-story townhouses.

Within a month, the proposal

became a matter of public

Pers

knowledge, and public opposi-

tion was swift and active.

On June 5, 1970, HUD issued a

"feasibility letter,’ which

amounted to a green light for

federal funding, and which was

accompanied by a reservation of

federal funds for the develop-

ment. As stated in Park View

Heights Corp. v. City of Black

Jack, 467 F. 2d 1208, 1211

(8th Cir. 1972):

‘Upon learning of the

"feasibility letter," area

residents began a drive

to incorporate the area

including the site of the

proposed Park View

Heights apartments. On

June 26, 1970, the Citi-

‘zens for the Incorporation

of Black Jack presented

two petitions requesting

incorporation...to the

St. Louis County Council.

Between June 26, 1970 and

August 6, 1970, the St.

Louis County Department

of Planning reported to

the St. Louis County

Council that they

"strongly opposed the

act of incorporation on

fiscal, planning, and

legal grounds." Despite

this opposition, the St.

Louis County Council

incorporated the City of

Black Jack, Missouri, on

4

August 6, 1970.

Between the date of the

Municipal incorporation

and September 15, 1970,

the municipal author-

ity of the City of Black

Jack was suspended by a

Writ of Prohibition

issued by a state court.

Within six days after

the writ was dissolved,

the city Zoning Commis-

Sion issued notices of

hearings on a zoning

ordinance...'

The ordinance was enacted by the

City Council on October 20, 1970.

It prohibited the construction of

any new multiple-family dwellings

and made present ones nonconform-

ing uses." United States v.

City of Black Jack, 508 F. 2d

1179, 1182-83 (8th Cir. 1974),

cert. denied, 422 U.S. 1042

(1975); See also Park View

Heights Corp. v. City of Black

Jack, 605 F. 2d 1033,,1035 (8th

Cir. 1979) (App. B-2)—

Second, racial discrimination permeated

the campaign against the Park View Heights

project at every turn. Contrary to the

City's insistence that its conceded viola-

tion of Title VIII of the Civil Rights Act

of 1968 was "unintentional," and its deeply

misleading suggestion that the Eighth

*/ Appendices to the Petition for a Writ of

Certiorari are cited as "App. o”

5

Circuit concurs in this benign characteriza-

tion of events (Pet. at 4, Se: the evidence

of illicit racial motivation presented to

the Court of Appeals was uncontroverted and

incontrovertible. In words twice deployed

by unanimous panels of the Eighth Circuit:

"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 commissioners them-

selves. 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 incorporate and the

decision to rezone." Park View

Heights v. City of Black Jack,

605 F. 2a 1033, 1038, n. 4 (1979)

(App. B-10n.4); United States v.

City of Black Jack, 508 F. 2d at

1185, n. 3-

Third, the Court of Appeals has held:

(a) that the attempt by the City Black Jack

to zone out the Park View Heights project

was a violation of Title VIII of the Civil

Rights Act of 1968, and (b) that this

conduct of the city caused the death of the

Park View Heights project. Neither of these

propositions is placed in dispute by the

petitioners.

#7 Reference to the City's Petition for a

Writ of Certiorari are cited as "Pet. at

6

In United States v. City of Black Jack,

Supra, the Court of Appeals held that the

City of Black Jack had violated Title VIII

of the Civil Rights Act of 1968. The peti-

tioners in the case at bar readily concede

that they are bound by this holding. (Pet.

at 5.) In the decision below, the Court of

Appeals further held that the death of the

project was the direct result of the City's

illegal conduct:

",..There can be no doubt that

the 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 fed-

eral preliminary approval, which

included a set-aside of govern-

ment 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 construc-

tion in late 1971. On the

basis of this evidence, we think

it clear that absent enactment

of the discriminatory zoning

ordinance, the project would

=e

7

have been constructed as planned."

Park View Heights Corp. v. City

of Black Jack, 605 F. 2d at 1038

(App. B-9 to B-10).

This finding of the Court of Appeals is

not disputed by the petitioners, who intro-

duced no evidence to the contrary at the

trial below, and who stress in their petition

before this Court that the question of

causality is not at issue. See Pet. at

21-22.

Fourth, no injunction against the City

has been issued by the District Court, and

the Court of Appeals below has done no more

than articulate a set of general guidelines

(in the Court's own word, "comments") against

the backdrop of which settlement negotiations

between the parties should proceed, and any

ultimate injunctive relief should be measured.

See Park View Heights v. City of Black Jack,

605 F. 2d at 1040-41 (App. B-12 to B-14).

The City is thus placed in the somewhat —

awkward position of conjuring up an injunc-

tion which might be issued against it (see

Pet. at 12, n. 4 and text), and then asking

this Court to anticipate and invalidate

this figmental order.

8

REASONS WHY THE WRIT SHOULD BE DENIED

I.

THIS CASE PRESENTS NO ISSUE

OVER WHICH THE COURT SHOULD

EXTEND ITS DISCRETIONARY

REVIEW. THE CLAIMS UPON WHICH*

THE CITY OF BLACK JACK IS

FORCED TO RELY ARE ALTERNATIVELY

PREMATURE OR FANCIFUL.

A. The objections of the City

of Black Jack to the decision

below reduce to the claim

that the City will be subjected

to unduly burdensome equitable

relief at some point in the

future or to the claim that

no award of equitable relief

against the City is appropriate.

; This case has narrowed itself to a ques-

tion of the propriety of an equitable remedy

of undefined reach which may be imposed upon

the City of Black Jack at some point in the

future. That the City acted in violation of

Title VIII of the Civil Rights Act of 1968

has been established. That its behavior was

the cause of the demise of the Park View

Heights Project is not now contested. The

Only remaining question is thus the ultimate

responsibility of the City for the equitable

redress of its illegal conduct. While the

decision below plainly contemplates the

possibility that the City of Black Jack may

become the object of injunctive relief on

behalf of the plaintiff class, it does so

only in the most general of terms.

9

The Court of Appeals premised its decision

upon an unexceptional and unobjectionable

standard for the awarding of equitable relief

against the City, borrowed directly from this

Court's decision in Albemarle Paper Co. v.

Moody, 422 U.S. 405, 418-419 (1975):

"Where racial discrimination is

concerned,'the [district] 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 discrim-

ination 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, the compensation

shall be equal to tie 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.

ae

94, 99 (1867)."

See also International Brotherhood of Team-

sters v. United States, 431 U.S. 324, 367

(1977). Franks v. Bowman Transportation

Co. 424 U.S. 747, 763 (1976).

10

This invocation of a well-settled federal

civil rights equitable tradition seems all

but beyond dispute. Indeed, the City itself

does not appear to take issue with the

general application of this uncontroversial

Standard of relief.

It is unclear precisely on what grounds

the City of Black Jack can or does object to

the terms of so general and unprovocative

a statement of its equitable obligation.

Logically, however, the City's claim before

this Court must reduce to one or both of

these propositions: (1) the City will be

required to bear an excessive and unfair

burden as a result of the equitable relief

to which it may be exposed, or (2) any

equitable relief ordered against the City

would be inappropriate.

The claim that the City will be asked to

bear an excessive burden is simply and

irreducibly premature. The claim that any

equitable command to the City will be

inappropriate is unsustainable. Each of

these observations will be amplified

briefly in the discussion which follows.

B. The claim that the City may be

subjected to unduly burdensome

equitable relief is premature.

In reversing the District Court's denial

of relief, the Eighth Circuit did not

fashion a specific and concrete decree,

_ defining the precise nature of the City's

equitable obligations. Rather the Court of

Appeals remanded this matter to the trial

court for further proceedings with the

11

ultimate goal of developing an appropriate

remedial plan. In doing so, the Eighth

Circuit's opinion suggests certain considera-

tions that might be taken into account by

the parties and by the trial court. But,

at this interval in the litigative process,

no concrete equitable decree has been

fashioned or even shaped in broad outline.

The City is thus asking this Court to

review a remedial plan that has not yet been

developed and has not been given textual life

as part of an equitable decree. Yet the

City petitions this Court on the principal

grounds that the kind of "affirmative" relief

required of it by the Eighth Circuit's

decision is prohibitively costly and unduly

intrusive into its municipal affairs. There

is, of course, no conceivable way for this

Court to evaluate these claims in the

abstract.

Under these circumstances, the extension

of this Court's discretionary jurisdiction

to these claims would be inappropriate. For

in their present posture, petitioners'

claims lack the concreteness and specificity

which would allow the Court to render an

informed judgment. As this Court noted in

an analogous context: "Passing upon the

possible significance of a broad statute in

advance of efforts to apply the separate

provisions is analogous to rendering an

advisory opinion upon a statute or a declara-

tory judgment upon a hypothetical case."

Watson v. Buck 313 U.S. 387, 402 (1941).

12

C. The proposition that the

federal courts suffer a

constriction of their remedial

authority when they are actin

pursuant to civil rights

legislation is unsupportable.

In an effort to provide a basis for its

Claim that no equitable redress can be

demanded of it under Title VIII of the Civil

Rights Act of 1968, the City advances a

somewhat remarkable vision of the interplay

of legislative and judicial authority. Under

the City's view, when the federal courts

fashion equitable remedies for constitutional

violations they are free to order vigorous

equitable relief against municipalities,

but when specifically authorized to issue

equitable relief for violations of congres-

Sionally defined civil rights, federal courts

suffer a constriction of their power to act.

See Pet. at 13-17. Such a view, of course,

Stands the traditional understanding of the

play of federal legislative and judicial

authority on its head. Pursuant to that

understanding, the power of the federal

judiciary to fashion remedies is most

strained when the courts are forced to act

without congressional direction or support.

See, e.g., Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971); and

Bell v. Hood, 327 U.S. 677 (1946). In

contrast, the power of Congress to shape

civil rights remedies is plenary and potent.

See, e@.g., Katzenbach v. Morgan, 384 U.S.

641 (1966); and Fitzpatrick v. Bitzer,

427 U.S. 445 (1976).

Not surprisingly, when the federal courts

have found violations of federal civil

rights statutes like Title VIII of the

13

Civil Rights Act of 1968, which authorize

a broad range of relief, they have responded

with great remedial vigour. See Franks v.

Bowman Transportation Company, 424 U.S.

747 (1976); Albemarle Paper Compag re -

supra; Moore v. Townsend, °

pam Cir. 1975); United States v.

West Peachtree Tenth Corp., 437 F. 2d 221

(5th Cir. 1971).

This vigour has been every bit as great

where it is local governments which have

acted in violation of Congress' civil

rights enactments. See, Lau v. Nichols,

414 U.S. 563 (1974); Firefighters Institute

v. City of St. Louis, yr. aaé (8th

Cir. 1978); cert. denied, U.S. , 99 &.

Ct. 3096 (1979); Resident Advisory Board v.

Rizzo, 564 F. 2d 126 (3d Cir. 1977),

cert. denied, 435 U.S. 908 (1978); United

States v. City of Chicago, 549 F. 2d 405

(7th Cir.), cert. denied, 434 U.S. 875

(1977); Horry County v. United States, 449

F. Supp. 990 (D.D.C. 1978).

D. Black Jack's invocation of

National League of Cities v. _

Usery lacks analytical foundation.

The City's reliance on National League of

Cities v. Usery, 426 U.S. 833 (1976), is

based on a line of argument which runs as

follows: (1) Black Jack might eventually

be required to alter its zoning laws in

response to an injunction issued by the

District Court; (2) one of the areas of

traditional municipal authority is land

use planning; and (3) therefore, such an

injunction would violate the User

prohibition. Even setting aside the utter

prematurity of this claim, it is hard to

14

pooneoe ; less hospitable set of circum-

stances for the invocation of the Us y

doctrine. —

By its terms, the Usery decision is

restricted to exercises Of Congress'

commerce clause powers, while the case

at bar concerns the enforcement of a civil

rights enactment. See, e.g., 426 U.S.

at 852, n. 17. Were Usery so easily

transposed from commerce clause exercises

of congressional authority to civil rights

enactments, from plenary legislative

standards to remedies for illegal discrim-

ination, and from broad budget-implicating

labor standards to narrow adjustments in

ongoing municipal regulations, the case

would provide an effective means of pre-

venting Congress and the federal courts

from authorizing any civil rights remedies

at all. Conferring such breadth on the

oecty principle is analytically unsupport-

15

II

THERE IS NO CONFLICT

BETWEEN THE DECISION

BELOW AND THE DECISIONS

OF THIS COURT OR THOSE

OF ANY COURTS OF APPEALS.

In an effort to demonstrate that the

imposition of anticipated equitable relief

upon the City of Black Jack places the

court below in conflict with the decisions

of this Court and at least one decision of

the Sixth Circuit Court of Appeals, the

City seizes upon a phrase first used by

this Court in Swann v. Charlotte-Mecklenburg

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

Swann, this Court stated that "the power of

a district court to grant affirmative injunc-

tive relief against a State or its subdivi-

sion is limited to cases in which a constitu-

tional violation is established." 402 U.S.

at 16. This language was subsequently

repeated in other decisions of this Court,

and in a decision of the Sixth Circuit

Court of Appeals. See Hills v. Gautreaux,

425 U.S. 284 (1976). Milliken v. Bradley,

418 U.S. 717 (1974); Rizzo v. Goode, 423

U.S. 362 (1976); and Garrett v. City of

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

The City's reliance on this language

takes it badly out of context. In Swann

this Court was merely indicating that the

federal courts could issue equitable relief

in school desegregation cases only after

establishing the existence of unlawful

conduct; and, since no independent statutory

civil rights claim was involved, it was

natural but without significance that this

Court spoke in terms of the Constitution.

16

See 402 U.S. at 16.

Likewise, in Milliken, Gautreaux, and

Rizzo, this Court was stressing that muni-

Cipalities or municipal officials could be

made subject to equitable remedies only

upon a finding that these entities or

officials were themselves guilty of illegal

conduct. The nature of the. claims in those

cases made it natural for the Court to

reiterate the language of Swann, but again,

the choice of words was without the

Significance which the City of Black Jack

chooses to read into it. Finally, in

Garrett v. City of Hamtramck, .supra, the

Sixth Circuit Court of Appeals cited the

statement from Swann, in dicta, to under-

score the serious constitutional violation

upon which the case actually turned and

for which relief was being authorized. In

the Hamtramck case, a case filled with a

welter of legal claims, including state law

claims erroneously heard as an extension of

the District Court's pendent jurisdiction,

the Sixth Circuit quoted from Swann merely

to stress the centrality of the federal

constitutional issue. See 503 F. 2d at

1246-47.

In sum, the proposition for which peti-

tioners cite Swann, Milliken, Gautreaux,

Rizzo, and Hamtramck--that the equitable

authority of the federal courts is drasti-

cally curtailed when remedying violations

of statutory, as opposed to constitutional

proscriptions--was neither raised nor

addressed in any of those cases.

17

CONCLUSION

For the foregoing reasons, the petition

for a writ of certiorari, in the above-

styled matter, should be denied.

Respectfully submitted,

LAWRENCE G. SAGER

- ARTHUR EISENBERG

New York Civil Liberties

Union

84 Fifth Avenue

New York, N.Y. 10011

‘MARTIN E. SLOANE

BRUCE GELBER

National Committee

Against. Discrimination

in Housing, Inc.

1425 H Street, N.W.,

Suite 410

Washington, D.C. 20005

Attorneys for Respondents

Dated: New York, New York

February 4, 1980