Opposition Brief — Raso v. Lago

Bupreme Court, Oh

FIL ED

JUN 26 1994

No. 97-1748. OFFCE GF THE CLERK

IN THE

Supreme Court of the GQnited States

OCTOBER TERM, 1997

ALFRED RASO, ET AL.,

Petitioners,

vi

MARISA LAGO, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI.

RICHARD M. BLUESTEIN

Counsel of Record

PAUL HOLTZMAN

KROKIDAS & BLUESTEIN

141 Tremont Street

Boston, Massachusetts 02111

(617) 482-7211

June 26, 1998

BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS

4

:

QUESTION PRESENTED

Whether the United States Court of Appeals for the First

Circuit correctly decided that no constitutional violation oc-

curred when the government conditioned the use of federal

funds for an apartment building on the requirement that

“some of the apartments — which otherwise would have al-

most automatically been occupied by whites — be made

available to all applicants on a race-blind basis.”

= hati

ii

LIST OF PARTIES

PETITIONERS: ALFRED J. RASO

JOAN BELINSKi CALABRO

FRANK LEVINE

THEODORE RICHARD NEDD

on behalf of themselves and all other displaced persons from

the West End.

RESPONDENTS: MARISA LAGO

THE BOSTON REDEVELOPMENT AUTHORITY

HENRY CISNEROS

THE DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT

THOMAS A. MENINO

THE CITY OF BOSTON

VICTORIA L. WILLIAMS

THE BOSTON FAIR HOUSING COMMISSION

SANDRA HENRIQUEZ

THE BOSTON HOUSING AUTHORITY

ROBERT H. KUEHN

KEEN DEVELOPMENT CORPORATION

LOWELL SQUARE NOMINEE TRUST

THE REVEREND MICHAEL F. GRODEN

PLANNING OFFICE FOR URBAN AFFAIRS INC.

LOWELL SQUARE ASSOCIATES, JOINT VENTURE

LOWELL SQUARE COOPERATIVE LIMITED

PARTNERSHIP

MALONEY PROPERTIES, INC.

MARK MALONEY

ry

:

*

ill

RESPONDENTS’ CORPORATE

DISCLOSURE STATEMENT

Pursuant to Rule 29.6, the following disclosure is made

regarding parent companies and non-wholly owned subsidi-

aries of the Developer Respondents:

Planning Office for Urban Affairs Inc. is a non-profit cor-

poration of which Bernard Francis Cardinal Law, Roman

Catholic Archbishop of Boston, a Corporation Sole, is the

sole member.

Keen Development Corporation has no parent company.

The following is a list of its non-wholly owned subsidiaries:

Academy Hill Associates. L.P.; Chelsea Campus Associates,

L.L.C.; Craigie Arms Associates, L.P.; Crimson Associates,

L.P.; Fig Factory Associates, L.P.; Jamaica Plain Associates,

L.P.; Kennedy Lofts Associates, L.P.; Lincoln House /.sso-

ciates, L.P.; Lower Mills Associates, L.P.; Lower Mills As-

sociates II, L.P.; Peerless/Keen Partners; Smith/Keen Part-

ners; Warren House Associates; Warren House Associates,

L.P.

No other corporation which is a Respondent in this case

has either a parent company or non-wholly owned subsidiary

which is not also a party.

iV

TABLE OF CONTENTS

SRN TION viiiiceassenceosinicdisatcivnccienbbddssionienicsesadeaenels i

Se EE FINE i discsscchackicvinternintcsisascianiicecaebeddgiemanonmenmasiigah li

Respondents’ Corporate Disclosure Statement ................ lil

Re OE FI bo sasisicstis saitsicdossccenkceccsanploiinsntistbciaiiaan Vv

CE Bee srcsnciiscsssvvineciasnespsmadennarseatasetieiagnaivel ]

Statermentt OF The CASS ncn cccsccnreccsssecnncsosovensssue Reine hear cees 2

Reasons for Denying the Writ ........0:..csccccoscosscsesseonsonessees 5

A. Petitioners’ Claims Are Moot as None of the

Named Plaintiffs is Seeking an Apartment at

West End Place ........ WAR SIME SoC OEE A 5

B. Even the Claims of All Putative Class Members

Are Moot as All Qualified West Enders Seeking

Apartments Have Obtained an Apartment ........... 6

C. Petitioners Lack Standing to Assert the Claims

TRING sscccecaniscssticiiudimntieiasiameimbnciiedlaks 8

D. The Court of Appeals Properly Rejected Peti-

tioners’ Equal Protection Claim ...............::csceees 9

E. The Decision of the Court of Appeals is

Consistent with Settled Law ....ccicscccssssercscssscesesess 10

Vv

F. The Rule Urged by Petitioners Would Preclude

Federal Agency Enforcement Actions ................ 13

COIR an svcesesassnnccsitsucietacicscnianiessiensseniciiasiieacibibuicentlatiuih 15

RTE, se ssctticasscnanisiawvcciasunientaionesentinin follows conclusion

TABLE OF AUTHORITIES

CASES:

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

CRD icici vinteincsccsilncs cisicelnisbsvntacaiuelapntenicamaieinbibaan G

Alschuler v. HUD, 515 F. Supp. 1212 (N.D. IIl. 1981),

aff'd., 686 F.2d 472 (7th Cir. 1982) .......ccccseessseeeees 10, 11

Arizonans for Official English v. Arizona, 520 U.S.

G3 E27 BG FOS AIG ED sitticictesenciesnvsdicitvcammtsnrionninn 8

Board of School Commissioners of City of Indianapolis

v. Jncolin, 420 U.S. 125 CES TS) scenevsssctentenemaitennecnssbuswess 6

City of New York v. FCC, 486 U.S. 57 (1988) ............ 12n

City of Richmond v. J.A. Croson Co., 488 U.S. 267

EL Gee aebwanee aro on wien OuMaey ae cemeved tes eas Mat et > 9

Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997), cert.

jon 116 $C HMO 10

vi

Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548

SE REE ah RED. Scseinicsdisinteclbicinnaaitodanipus elias denahdaie 10

Iron Arrow Honor Society v. Heckler, 464 U.S. 67

{.. *) siibileis ands niecncaseclachiuisicg aicasdteeada cia aaaicaatbcuemiabinelas 7

Katzenbach v. Morgan, 384 U.S. 641 (1966) .......... 12

Linmark Assoc’s Inc. v. Township of Willingboro,

ROS R&A | py 3 BRON crc rman oNete On andrea err 15

Los Angeles v. Lyons, 461 U.S. 95 (1983) ween 8

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...... 8

Lutheran Church v. FCC, 141 F.3d 344 (D.C. Cir.

EIPOIED iininctnsiihiaiciacoshgiscaciaiesicchicd auasiacalalabeen dik dy Uae Ne aS. 1]

NAACP v. Kemp, 721 F. Supp. 361 (D. Mass.

PUTED saisasajiasecaslonsiesinnsitaieediniamianide pacuhmsecbcacadniadieapiaee adeihiahs 3, 9n, 13

O’Shea v. Littleton, 414 U.S. 488 (1974) oe. 6, 7,8

Otero v. New York City Hous. Auth., 484 F.2d 1122

IE Sis EF FEM sncccctertoneckaiceebaceasiccl iatiniasnusitibes riline tn es 14

Pasadena City Board of Education v. Spangler, 427

eats MOO EAS PID wchcncvindinicndaniciainniasidabediakbgummliomalin 6

Regents of Univ. of California v. Bakke, 438 U.S. 265

ER HED wvsicsdasshabdsd phsicsiccdbaulsbuaansshipededaomineialonas tales Y

Vii

Rice v. Sioux City Memorial Park Cem tery, 349

a PR mE ic aac daoaGbitasieesiceccahdataickh btscsdantacacubbhcenennerean 7

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205

(1972) (quoting 114 Cong. Rec. 3422) .............. 10, 14, 15

Warth v. Seldin, 422 U.S. 490 (1975) ..............cccesseseseseees 7n

Wygant v. Board of Education, 476 U.S. 267 (1986) ...... 9

STATUTES

UNITED STATES CODE

OE TAs ee Oe OIE inctiasssccsenccenrasninensatinsnaiicens 4,11

Se ek, TAY skintisidnacindyindtanncduapusgoiebnediavietts 14

Re Sree ak ED cidsdeniicsdecitadieinteccanitcinenvededsansicinuanenpiitens 12

MASSACHUSETTS GENERAL LAWS

hs Tae e Se MOPF : envs tccctheaicsssvionscbondueshtncsbeceisoatsondnebiiontonanuds 12

Be Ee ee OE I wiincinccichnansacinstkanteeinomebeectanneien’ 4

or aes eR EAEEE pudhndinsciedsbiakaehosatasbedititaabblicemeinsiens 12n

OIE CURES TRIN CID ieiscpnsccscensisincencscbininsneiienetineniains ill

MISCELLANEOUS

Wright, Miller & Kane, FEDERAL PRACTICE AND

PROCEDURE, CAVE, 20) OP 7GIA crescovesesecisnsccsareversivesesss 6

No. 97-1748.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1997

ALFRED RASO, et al.,

Petitioners,

v.

MARISA LAGO, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI.

OPINIONS BELOW

In a Memorandum and Order dated January 6, 1997, the

United States District Court for the District of Massachu-

setts, dismissed petitioners’ claims prior to any application

for class certification. Petition Appendix (“Pet. App.”) at

22a.

In an Opinion dated January 27, 1998, the First Circuit

Court of Appeals affirmed the decision of the District Court.

2

Pet App. at 63a. The Court of Appeals held that HUD’s de-

cision to limit the preference for former West Enders in order

to insure that not all of the apartments being subsidized

would automatically be occupied by only white residents did

not constitute a “racial classification” triggering strict scru-

tiny. The Court of Appeals further held that the Complaint

alleged no facts suggesting that HUD’s decision was moti-

vated by any purpose other than a legitimate interest in com-

pliance with HUD’s obligations to promote integrated hous-

ing through its funding programs. Finally, the Court of

Appeals rejccted petitioners’ claim under state law that the

statutory preference created a “trust” for the benefit of the

former West Enders.

STATEMENT OF THE CASE

Nearly thirty years following adoption of an urban re-

newal plan for the area, the Boston Redevelopment Authority

(“BRA”)-awarded the entities referred to by the Court of Ap-

peals as the “[D]eveloper” defendants the nght to develop

the West End Place Project in Boston’s West End. One of

the conditions imposed by the BRA in the designation was

that “[pJurchase (and/or rental) preference shall be afforded

to former West Enders (subject only to applicable local,

state, and federal laws, including but not limited to fair

housing laws).” (Emphasis added.) This requirement mir-

rored the qualified preference accorded to persons displaced

by urban renewal under the state urban renewal statute.

Court of Appeals Appendix (“Ct. App. App.”) at A214.

The West End Place Project was developed using sub-

stantial federal funding. Jd. at A129-30, Al45-47. For ex-

ample, it includes low income units subsidized by funds from

3

HUD’s Section 8 program. Jd. at Al29-130. The public

funds were conditioned on the Developer’s compliance with

applicable fair housing laws. /d.

In an earlier, separate action, the NAACP brought suit

against the Department of Housing and Urban Development

(“HUD”). NAACP v. Kemp, 721 F. Supp. 361 (D. Mass.

1989). Following a trial and a finding of liability against

HUD for violation of the Fair Housing Act for failing to

condition use of federal funds on advancement of fair hous-

ing objectives, the action was eventually resolved by a con-

sent decree. Kemp, 721 F. Supp. at 365. In the consent de-

cree, HUD agreed to ensure, among other things, that

affirmative fair housing marketing plans would be designed

by owners of HUD-assisted projects in Boston and would

have as their goal and measure of success the achievement in

HUD.-assisted housing located in neighborhoods which are

predominantly white of a racial composition which reflects

the racial composition of the City as a whole. The Decree

provided that “[nJothing herein shall constitute or be con-

strued as requiring a quota.” Jd. at A78-88.

In December 1994, the city, the former West Enders,

HUD, NAACP and the BRA engaged in a mediation under

the auspices of the City of Boston in an attempt to balance

the former West Enders’ asserted preference for units at

West End Place, the commitments made by the Developer in

obtaining designation as the Developer of the project and the

competing federal and state laws and policies. Jd. at A24.

The mediator was a former United States Attorney. Jd. He

recommended that the former West Enders be given a prefer-

ence of 55% of the units at West End Place. Jd. at A144. The

Developer, HUD and the BRA agreed to abide by the me-

diator’s recommendation. The former West Enders refused.

Id. at A134, A144.

4

The Developer marketed the Project according to an Af-

firmative Fair Housing Marketing Plan (“Marketing Plan’’)

required by federal law. /d. at Al21-27, A132. Under the

Marketing Plan, the availability of housing at the develop-

ment was affirmatively marketed to the public, including the

former West Enders and minority communities. Jd. at A134-

35, A224-66. The Marketing Plan is required by the Fair

Housing Act, 42 U.S.C. § 3601 et seg., federal regulations

including those at 24 C.F.R. § 200.600 et seg., and the Kemp

Consent Decree. App. at A83, A129.

The tenant selection procedure employed by the Devel-

oper was entirely race neutral. Jd. at A134-39, A241-48. The

marketing agent randomly assigned lottery numbers to all

applicants without reference to race. Jd. at A137-38, A151,

52. After the lottery, the applications were divided into two

groups: one comprised of former West Enders and the other

comprised of all other applicants. Jd. at A137. The market-

ing agent then categorized applicants based solely on income

level and, for low and moderate income units, family size.

Id. at A138. The applicants with the lowest lottery numbers

were invited to complete formal applications and were

screened and matched with available units. Jd. at A138. The

former West End applicants were given preference to 55% of

the units in the tenant selection process. Jd. at A134. While

the Developer marketed the Project pursuant to the Market-

ing Plan, the tenant selection process did not take into ac-

count the race of the applicant. Jd. at A137-139.

Despite the Developer’s commitment to give the former

West Enders preference to 55% of the units, including low-

income, moderate income and market units, the former West

Enders continued to demand an absolute preference io every

unit in the development. /d. at A31. In support of that posi-

tion, Petitioners filed the instant action asserting that HUD’s

— oma

5

refusal to agree to a one-hundred percent preference for for-

mer West Enders violated various federal constitutional and

Statutory provisions, as well as Massachusetts statutes and

common law. In anticipation that there would be more in-

terested former West Enders than available apartments under

the fifty-five percent compromise, the Complaint sought, in-

ter alia, injunctive relief setting aside all the apartments at

West End Place for former West Enders.

In the end there was no such shortfall. At the conclusion

of the tenant selection process, all the qualified former West

Enders who desired an apartment received an apartment. See

Appendix at la.

REASONS FOR DENYING THE WRIT

A. PETITIONERS’ CLAIMS ARE MooT AS NONE OF THE

NAMED PLAINTIFFS IS SEEKING AN APARTMENT AT WEST

END PLACE.

As described in the Affidavit of Mark Maloney, see Ap-

pendix at la, the claims of the petitioners are moot because

none has a live controversy with respondents. In particular,

none of the named plaintiffs is seeking an apartment at West

End Place. Of the four named plaintiffs, one never applied

for an apartment; one has requested that his application be

withdrawn; and two have been removed from the waiting list

for failure to respond to inquiries regarding their continued

interest. Jd. at § 6. The latter two plaintiffs were removed

pursuant to neutral rules of administration which have led to

the removal of numerous applicants from both groups and

which have not been challenged in this action. Jd. at ¥ 5.

6

The Maloney Affidavit establishes that ‘“‘a case or contro-

versy no longer exists between the named plaintiffs” and re-

spondents. Board of School Commissioners of City of Indi-

anapolis v. Jacobs, 420 U.S. 128, 129 (1975). Because no

class has ever been certified, the claims are moot. See Ja-

cobs, 420 U.S. at 130. As a result, it would be improvident

for the Court to consider a grant of certiorari.

It is settled law that where the named plaintiffs “no longer

have any stake in [the] outcome,” the action is moot. Pasa-

dena City Board of Education v. Spangler, 427 U.S. 424,

430 (1976). Accord O'Shea v. Littleton, 414 U.S. 488

(1974) (none of named plaintiffs suffered any injury from

challenged practices). Accord Wnight, Miller & Kane,

FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1785.1 (“if

a class action is not properly certified pnor to judgment be-

ing entered and the representative’s claim becomes moot on

appeal, then the action may be dismissed as moot’).

B. EVEN THE CLAIMS OF ALL PUTATIVE CLASS MEMBERS

ARE MOOT AS ALL QUALIFIED WEST ENDERS SEEKING

APARTMENTS HAVE OBTAINED AN APARTMENT.

The Maloney Affidavit demonstrates not only that the

claims of the named plaintiffs are moot, but that the same

conclusion is dictated regarding the claims of all members of

the putative class. In particular, “all of the qualified appli-

cants in the lottery process who identified themselves as

former residents of the West End have been offered apart-

ments at West End Place.” See Maloney Affidavit at ¥ 3,

Appendix at 2a. In other words, the expected shortfall be-

tween the number of interested West Enders and the number

of available apartments simply did not materialize.

filliniPeoatae 2

7

Where petitioners have not “suffered some actual injury

that can be redressed by a favorable judicial decision,” no

case or controversy exists. Jron Arrow Honor Society v.

Heckler, 464 U.S. 67, 70 (1983). That is precisely the cir-

cumstance here because no ruling the Court could issue on

the matter of petitioners’ asserted “preference” would alter

the number of West Enders occupying apartments. As a re-

sult, the Court lacks jurisdiction to decide the case. Jd.'

Petitioners’ claim for damages is equally moot. None of

the former West Enders has been deprived of any compensa-

ble benefit. See O'Shea, supra, 414 U.S. at 494. In the end,

all the qualified, interested former West Enders who partici-

pated in the lottery process obtained apartments at the same

time as did the non-West End applicants. See Maloney Affi-

davit at § 3, Appendix at 2a.

In addition to demonstrating the absence of a live contro-

versy, the facts described in the Maloney Affidavit counsel

against a grant of certiorari because they indicate that the

claimed controversy is not a real dispute on any level. Be-

cause the West Enders who qualified for apartments have

received them, there simply are no aggrieved parties. The

Court has consistently held that it does not exercise its cer-

tiorari function in order to “satisfy a scholarly interest” in an

issue. Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

70, 74 (1955). The Court in Rice emphasized that this rule

has particular force in the context of constitutional issues

Although it is unclear from the Petition whether the Old West End

Housing Corporation (“OWEHC”) is among the Petitioners seeking re-

view in this Court, see e.g. Petition at 1, in the event the Court were to

construe the Petition to encompass the claims of OWEHC, the same

analysis would dictate the conclusion that the claims of the organization

are likewise moot. See Warth v. Seldin, 422 U.S. 490, 510-17 (1975)

(no organizational standing in absence of standing of members).

8

where the Court ordinarily has the “duty to avoid decision of

constitutional issues.” Jd.

C. PETITIONERS LACK STANDING TO ASSERT THE CLAIMS

PRESENTED.

The fact that none of the named plaintiffs ended up pur-

suing an apartment at West End Place dictates another con-

clusion which counsels against granting a writ of certiorari:

none of the petitioners even has standing to assert the claims

in the Complaint. Simply stated, the petitioners have not

manifested a desire to live at West End Place. As a result,

they cannot establish an injury which is “actual or imminent,

not conjectural or hypothetical.” Lujan v. Defenders of Wild-

life, 504 U.S. 555, 560 (1992).

Absent such a “real and immediate threat,” Los Angeles v.

Lyons, 461 U.S. 95, 105 (1983), petitioners cannot satisfy the

Article III requirement of standing. As the Court held in

O’Shea v. Littleton, supra, 414 U.S. at 494,

if none of the named plaintiffs purportmg to

represent a class establishes the requisite of a

case or controversy with the defendants, none

may seek relief on behalf of himself or any

other member of the class. [footnote omitted]

The failure of petitioners to meet this “threshold require-

ment,” O'Shea, 414 U.S. at 493, constitutes an independent,

and equally compelling, ground for denying the petition. See

Arizonans for Official English v. Arizona, 520 U.S. 43, 117

S.Ct. 1055, 1067 (1997) (“t]he standing Article III requires

9

must be met by persons seeking appellate review, just as it

must be met by persons appearing in courts of first in-

stance’”’).

D. THE COURT OF APPEALS PROPERLY REJECTED PETI-

TIONERS’ EQUAL PROTECTION CLAIM.

The Court of Appeals properly concluded that this is not a

case about a race-conscious selection plan. Compare Ada-

rand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); City

of Richmond v. J.A. Croson Co., 488 U.S. 469 (1988); Wy-

gant v. Board of Education, 476 U.S. 267 (1986). In fact, it

is not even a case about the use of race as a factor in selec-

tion of tenants. Compare Regents of Univ. of California v.

Bakke, 438 U.S. 265 (1978). To the contrary, as the undis-

puted facts reflect, tenant selection at West End Place was

conducted through the quintessentially race-neutral method

of a lottery.

The only reference to race was in the adoption of an Af-

firmative Fair Housing Marketing Plan which, as required by

federal regulations, established a goal of an integrated hous-

ing development.’ The Circuit described the application of

that requirement as follows:

Here, the government’s condition on federal

funds was that some of the apartments —

? As discussed infra at Section E, the Plan was further required in this

instance by the Consent Decree in NAACP v. Kemp. Contrary to the

contention of petitioners in their “Question Presented for Review,” Peti-

tion at I, there has been no “misapplication” of the Consent Decree. In

any event, petitioners’ assertion in this regard would require an inten-

sively fact-bound inquiry.

10

which otherwise would have almost automati-

cally been occupied by whites — be made

available to all applicants on a race-blind ba-

sis. Pet. App. at 74a

Such a condition, the Court of Appeals held, no more

violated the Equal Protection clause than does “[e]very anti-

discrimination statute aimed at racial discrimination, and

every enforcement measure taken under such a statute... .”

Id. at 73a. In fact, HUD’s requirement that some of the

apartments be open to all applicants is even further from a

“racial classification” because its objective was integration

and not merely nondiscrimination. In other words, the Gov-

ernment’s interest was not in the race of any particular appli-

cant, but in preserving the possibility of attracting an inte-

grated population overall at West End Place. See Trafficante

v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972)

(quoting 114 Cong. Rec. 3422).

E. THE DECISION OF THE COURT OF APPEALS IS CONSISTENT

WITH SETTLED LAW.

The conclusion of the First Circuit is consistent with the

other Circuits which have examined the issue. See e.g. Duffy

v. Wolle, 123 F.3d 1026, 1038-39 (8th Cir. 1997), cert. den.

118 S.Ct. 1839 (1998) (affirmative outreach does “not con-

stitute discrimination”); Ensley Branch, N.A.A.C.P. v. Sei-

bels, 31 F.3d 1548, 1571 (11th Cir. 1994) (outreach and re-

cruitment are “race-neutral”’). Accord Alschuler v. HUD,

515 F. Supp. 1212, 1234 (N.D. Ill. 1981), aff'd., 686 F.2d

472 (7th Cir. 1982) (“purpose of the Affirmative Fair Hous-

aie A

11

ing Marketing Plan is not to guarantee racial quotas or ra-

cially integrated projects . . . [but] to ensure that all racial

groups in a marketing area have knowledge of and an op-

portunity to rent units in a particular building”), aff'd., 686

F.2d 472 (7th Cir. 1982).

Petitioners’ effort to suggest a conflict among the circuits

is squarely refuted by the very case upon which they primar-

ily rely for this dubious proposition. Contrary to the sugges-

tion of the Petition, at 9, the court in Lutheran Church v.

FCC, 141 F.3d 344 (D.C. Cir. 1998) specifically distin- ~

guished — and in fact approvingly described — the decision

in Raso. Id. at n.8. The Lutheran Church opinion noted that

constitutional principles of equal protection were not of-

fended by the application of the requirement of federal law

that “federally funded housing be available to all applicants

regardless of race” to overcome a state law “housing prefer-

ence.” Jd. °

At bottom, the Petition seeks to challenge settled princi-

ples concerning the supremacy of federal law. The context

for that challenge is the interplay between the federal Fair

Housing Act, 42 U.S.C. § 3601 et seg. (including the duty

imposed on HUD by Section 3608 to affirmatively further

fair housing in the use of federal funds) on the one hand, and

a state statutory preference for “families displaced” by urban

> Unlike Lutheran Church, in the selection of West End Place tenants

there was not even an opportunity to tilt selections toward members of a

particular race because all selections were made by lottery.

j

}

t

12

renewal activity nearly forty years ago.* See M.G.L. c. 121B,

§ 49.

The issue raised has long been resolved by reference to

the Supremacy Clause. See e.g. Katzenbach v. Morgan, 384

U.S. 641, 647 (1966) (race-neutral voting rule “cannot be

enforced to the extent it is inconsistent with” the federal

Voting Rights Act). In fact, the Fair Housing Act includes a

specific statutory provision rendering invalid any state law

that “purports to require or permit any action that would be a

discriminatory housing practice under” the Act. 42 U.S.C. §

3615.°

The challenge is even less worthy of the Court’s attention

as the very state statute upon which petitioners rely explicitly

conditions the “preference” on compliance with federal law.

See M.G.L. c. 121B, § 49. As a result, petitioners never had

an “absolute” preference of the sort they now claim to any

units at West End Place. In addition, the “preference”

claimed by petitioners conflicts with the terms of a federal

* It is far from clear that almost forty years after enactment of M.G.L.

c. 121B, § 49, the former West Enders are entitled to any preference.

They are entitled to the preference only upon demonstration that they are

“displaced” persons. Nearly four decades after displacement, the former

West Enders are not as a legal matter “displaced” within the meaning of

the state law, M.G.L. c. 121B, § 49.

° The same result is dictated to the extent the issue is framed as a con-

flict between the HUD regulations requiring adoption of a Fair Housing

Marketing Plan, see e.g., 24 C.F.R. § 850.151(g), and the state statute.

City of New York v. FCC, 486 U.S. 57 (1988) (“statutorily authorized

regulations of an agency will pre-empt any state or local law that con-

flicts with such regulations or frustrates the purposes thereof”).

Neri Ae

‘13

court consent decree entered in the case of N.A.A.C.P. v.

Kemp, 721 F.Supp. 361 (D. Mass. 1989).°

Finally, the instant matter arises from unique circum-

stances. The issue is not of any broader significance because

it relates to an ad hoc administrative decision arising, as the

Court of Appeals noted, from “the peculiar interplay of

Boston’s consent decree, the Massachusetts statute, and the

respective racial composition of the Boston population and

the former West Enders.” Pet. App. at 75a-76a.

F. THE RULE URGED BY PETITIONERS WOULD PRECLUDE

FEDERAL AGENCY ENFORCEMENT ACTIONS.

As Judge Boudin noted in the decision below, to adopt

petitioners’ position would be to prohibit “[e]very antidis-

crimination statute aimed at racial discrimination, and every

enforcement measure taken under such a statute” because

they “reflect a concern with race.” Pet. App. at 73a. Such a

contention stands in clear conflict with the settled law con-

cerning the obligation of HUD to affirmatively promote inte-

grated housing in the course of expending federal funds. As

the court held in Otero v. New York City Hous. Auth., 484

® The court in Kemp found that HUD had failed to comply with its

statutory obligation to promote fair housing through its housing funding

programs. Subsequently the parties executed, and the court approved, a

Consent Decree designed to remedy the prior violations of the Fair

Housing Act. Among other provisions, it required the adoption of Af-

firmative Fair Housing Marketing Plans designed to promote racially

integrated housing in neighborhoods of Boston which are predominately

white. Contrary to the suggestion of the Petition, at 5-6, 26, the Decree

remains in full force and has not been the subject of anv “sunset clause.”

See Order of June 21, 1996.

14

F.2d 1122, 1134 (2d Cir. 1973), Section 3608(d)(5) of the

Fair Housing Act

requires that consideration be given to the im-

pact of proposed public housing programs on

the racial concentration in the area in which

the proposed housing is to be built. Action

must be taken to fulfill, as much as possible,

the goal of open, integrated residential hous-

ing patterns and to prevent the increase of

segregation ....

This Court has also recognized that the goal of the Fair

Housing Act is to “replace the ghettos ‘by truly integrated

and balanced living patterns.’” Trafficante v. Metropolitan

Life Ins. Co., 409 U.S. 205, 211 (1972) (quoting 114 Cong.

Rec. 3422).

On petitioners’ view, HUD would be barred from consid-

ering the impact on segregative housing patterns of proposed

uses of federal funds. Such a result would mean, for exam-

ple, that HUD would not be able to decline to fund a project

because of a concern about promotion of segregation.

Likewise, HUD would be barre. tom requiring that an

applicant submit an Affirmative Fair Housing Marketing

Plan. These Plans represent an important tool by which pro-

spective residents of all races learn of federally-subsidized

housing opportunities. A rule precluding the use of such ra-

cially neutral outreach efforts would squarely conflict with

the fundamental purposes of the Fair Housing Act.

15

CONCLUSION

The Petition should be denied because the claims of peti-

tioners for injunctive and monetary relief have been rendered

moot as a result of the fact that the four named plaintiffs —

as well as the remaining members of the putative class —

have all received apartments or declined to pursue housing at

West End Place. In short, the expected shortfall between the

number of interested, qualified former West Ender applicants

and the number of available apartments, has simply not ma-

terialized. The consequent absence of a live “case or contro-

versy” powerfully counsels against the exercise of the

Court’s certiorari power.

Further, consistent with settled law, the Court of Appeals

correctly rejected petitioners’ request that — in addition to

the fifty five percent (55%) of apartments already set aside

solely for the all-white group of former West Enders — the

remaining apartments should be kept from the general public

where applicants of all races would have a fair chance to ob-

tain one through the lottery. Such an outcome would have

rendered futile any effort to promote integration of the de-

velopment, thereby violating the Fair Housing Act and what

this Court has recognized as the “strong national commit-

ment to promote integrated housing.” Linmark Assoc’s Inc.

v. Township of Willingboro, 431 U.S. 85, 94-95 (1977)

(citing Trafficante v. Metropolitan Life Ins. Co., 409 U.S.

205 (1972)). Petitioners’ contention that this national policy

(and the specific statutory requirement that HUD affirma-

tively further fair housing in its expenditure of federal funds)

16

should give way to an explicitly ‘conditional state law

“preference” lacks support in law and logic.

Respectfully submitted,

ROBERT H. KUEHN, JR., KEEN

DEVELOPMENT CORPORATION,

MICHAEL F. GRODEN,

PLANNING OFFICE FOR URBAN

AFFAIRS, INC., LOWELL

SQUARE ASSOCIATES JOINT

VENTURE, LOWELL SQUARE

COOPERATIVE LIMITED

PARTNERSHIP, LOWELL

SQUARE NOMINEE TRUST,

MALONEY PROPERTIES, INC.

AND MARK MALONEY,

By their attorneys,

RICHARD M. BLUESTEIN

BBO #046840

PAUL HOLTZMAN

BBO #563184

KROKIDAS & BLUESTEIN

141 Tremont Street

Boston, Massachusetts 02111

(617) 482-7211

ne eee

TABLE OF CONTENTS.

APPENDIX A

Affidavit of Mark Maloney ........00..s:sccscccssosssessosesssseseeess la

Exhibit A

A summary chart reflecting status of each

TIT, INET sdicnccsesicesnescnsnsessccsenenshiminnitontannctornee 4a

Exhibit B

Letter of June 2, 1997 to Alfred Raso .................. 5a

Exhibit C

Letter of July 21, 1997 to Frank Lavine ............... 7a

Exhibit D

Letter of September 17, 1997 to Richard Nedd ... 9a

APPENDIX A.

SUPREME COURT OF THE UNITED STATES

DOCKET NO. 97-1748

ALFRED J. RASO, et al.,

Petitioners,

MARISA LAGO, et al.,

Respondents

i a ee ee a ee ee

AFFIDAVIT OF MARK MALONEY

I, Mark Maloney, hereby depose and state:

1. I am President of Maloney Properties, Inc. (“Maloney

Properties”). Maloney Properties is a professional real estate

management company and has been engaged by the

developers of West End Place to handle the marketing and

management of West End Place.

2. As President of Maloney Properties, I have knowledge of

the selection process for applicants for apartments at West

End Place.

2a

3. As of February 4, 1998 all of the qualified applicants in

the lottery process who identified themselves as former

residents of the West End had been offered apartments at

West End Place. Each of these applicants was offered

apartments in the same time period that apartments were

offered to applicants who were not former residents of the

West End.

4. Attached hereto are the following documents reflecting

the status of the applications of the four named plaintiffs in

the instant action:

Exhibit A A summary chart reflecting status of

each named plaintiff

Exhibit B Letter of June 2, 1997 to Alfred Raso

Exhibit C Letter of July 21, 1997 to Frank

Lavine

Exhibit D Letter of September 17, 1997 to

Richard Nedd

5. In the course of the selection process approximately eight

hundred six (806) applicants were removed for failure to

respond and approximately two hundred forty-five (245)

applicants were removed at their request. Both categories

included both former West End residents and other

applicants.

6. As described in Exhibit A, of the four named plaintiffs,

one never applied at all; one requested to be removed from

e 3a

the waiting list; and two were removed for failing to respond

to efforts to reach them by mail and telephone.

Signed under the pains and penalties of perjury this 18th

day of June, 1998.

/s/

Mark Maloney

4a

EXHIBIT A.

Name Status

Mr. Frank Lavine Removed 7/21/97 due to no

Mr. T. Richard Nedd

Mr. Alfred J. Raso

Ms. Joan Belinski Calabro

response from attempts to

reach him by mail or

telephone.

Removed 9/17/97 due to no

response from attempts to

reach him by mail or

telephone.

Removed 6/2/97 per Mr.

Raso’s request to be removed.

Never applied.

Sa

EXHIBIT B.

150 Staniford Street Phone (617) 720-4646

Boston, MA 02114 Fax (617) 725-1888

WEST

END ee

PLACE

June 2, 1997

Mr. Alfred J. Raso

1374 Broadway 6D

Somerville, MA 02144

Certified # Z 389 745 499

Dear Mr. Raso:

This letter is to confirm our recent conversation requesting

that your name be removed from the West End Wait List.

If you have any further questions, please do not hesitate to

contact us at 720-4646.

6a

Thank you for your interest in West End Place.

Very truly yours,

/s/

Cindy McGourty

Occupancy Manager

COSs.SOC

MARKETED AND MANAGED BY MALONEY PROPERTIES, INC.

EQUAL HOUSING OPPORTUNITY / EQUAL OPPORTUNITY EMPLOYER

FOR DISABILITY ACCESS INFORMATION CALL 617-449-7887 ExT 255

TDD #1-800-439-2370

Ta

EXHIBIT C.

150 Staniford Street Phone (617) 720-4646

Boston, MA 02114 Fax (617) 725-1888

WEST

END

PLACE

July 21, 1997

Mr. Frank Lavine

20 Hillside Avenue

Medford, MA 02155

Dear Mr. Lavine:

This letter is to inform you that because we have no heard

from you regarding your selection of an apartment, we are

assuming that you are no longer interested in a unit at West

End Place. We have, therefore, removed your name from

our waiting list.

8a

If you have any questions, please do not hesitate to call me.

Thank you for your interest in West End Place.

Sincerely,

/s/

Mark Driscoll

Rental Agent

Certified Return Receipt #: Z256 770 938

MARKETED AND MANAGED BY MALONEY PROPERTIES, INC.

EQUAL HOUSING OPPORTUNITY / EQUAL OPPORTUNITY EMPLOYER

FOR DISABILITY ACCESS INFORMATION CALL 617-449-7887 ExT 255

TDD #1 -800-439-2370

9a

EXHIBIT D.

150 Staniford Street Phone (617) 720-4646

Boston, MA 02114 Fax (617) 725-1888

WEST

END

PLACE

September 17, 1997

Mr. T. Richard Nedd

108 Porter Street

Malden, MA 02148

Dear Mr. Nedd:

We have been trying unsuccessfully to contact you via

telephone, therefore, your name has been removed from the

waiting list at West End Place.

If you have any further questions, please do not hesitate to

contact us at 720-4646.

10a

Thank you for your interest in West End Place.

Very truly yours,

/s/

Cindy McGourty ‘

Occupancy Manager

MARKETED AND MANAGED BY MALONEY PROPERTIES, INC.

EQUAL HOUSING OPPORTUNITY / EQUAL OPPORTUNITY EMPLOYER

FOR DISABILITY ACCESS INFORMATION CALL 617-449-7887 ExT 255

TDD #1-800-439-2370