Amicus Curiae Brief — Warth v. Seldin

INDEX

Page

INTEREST OF THE AMICUS CURIAE ..........e.0ee eens 1

QuesTION PRRGBNTED ....... 20 cece esc neneeeeeees 3

CII ga 6 RSA a ek Fo hd MERE ES HO eeew es ecesens 3

TN ee ee. Terr rT eer Tee Teer 3

1. The Plaintiffs are Injured in Fact ............ 4

2. Plaintiffs Have Standing Independent of Devel-

opers and Landowners ...........ssseseeeees 13

3. An Effective Remedy Is Available ............ 17

| 4. This Court’s Recent Decisions Denying Stand-

| ing Are Inapplicable ..............eeeeeeeees

ES ge I eee enya cn eee OTe eee eee 21

TABLE OF AUTHORITIES

CaSEs:

| Allee v. Medrano, 94 S.Ct. 2191 (1974) ...........55 12

| Association of Data Processing Service Organizations,

| Jac. v. Gamp, S07 U.B. 150 (1970) .:.......... . ae f

Banks v. Perk, 341 F.Sup.. 1175 (N.D. Ohio 1972),

aff’d m relevant part, 473 F.2d 910 (6th Cir. 1973) 15

Barlow v. Collins, 397 U.S. 159 (1970) ..........5... 9,10

Buchanan v. Warley, 245 U.S. 60 (1917) ............. 12

Brown v. Board of Education, 347 U.S. 483 (1954).... 20

CMHA v. City of Cleveland, 342 F.Supp. 250 (N.D.

Ohio 1972), aff’d sub nom. CMHA v. Harmody,

Ove Pee 1208 (Gt Cir. BOTS)... . enn ccc scan 16

City of Kenosha v. Bruno, 412 U.S. 507 (1973) ...... 14

Cole v. Housing Authority of the City of Newport, 435

ee eS ee errr ree re 15

Conley v. Gibson, 355 U.S. 41 (1957) ...2........... 4

Cornelius v. City of Parma, 374 F.Supp. 730 (N.D

Ohio) ; vacated and remanded, — F.2d — No. 74

1401 (6th Ra OO Oe BOD oc cs keen cab ees 15, 16.

Crow v. Brown, 332 F. Supp. 382 (N.D. Ga. 1971), aff’d,

oe ae: eee ae

Index Continued

Page

Curtis v. Loether, 415 U.S. 189 (1974) .............% 2

Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir.

BOER a. Cc da 5 ee oes ong kena xed anes as 2, 13, 15

Doe v. Bolton, 410 U.S. 179 (1973) ............008. 13, 14

Ellis v. Carter, 291 F.2d 270 (9th Cir. 1961).......... 7

England v. Louisiana State Board of Medical Ex-

aminers, 263 F.2d 661 (5th Cir.), cert. denied, 359

TI I SEE os + hex wane ONS coer cs «reac ae R exS 7

Flast v. Cohen, 392 U.S. 83 (1968) ..3.......cieeees 20

Garrett v. City of Hamtramck, 335 F.Supp. ié (E.D.

Mich. 1971), supplemental order, 357 F. Supp.

RE ry ree Pree eee 19

Gautreaux v. Chicago Housing Authority, 265 F.Supp.

— ee ee Ry 5 Ee ery repre re rere 15

In re Girsh, 437 Pa. 237, 263 A.2d 395 (1970)........ 17

Green v. County School Board, 391 U.S. 480 (1968)... 18

James v. Valtterra, 402 U.S. 137 (1971) ............. 14

Jenkins v. McK eithen, 395 U.S. 411 (1969) ....... 4,17,18

Jones v. Mayer, 392 U.S. 409 (1968) ................ 2

Kennedy Park Homes Ass’n v. City of Lackawanna,

436 F.2d 108 (2d Cir. 1970), cert. denied, 401 U.S.

a 8 Ee re ae peer ere rer 2,15

King v. New Rochelle Municipal Housing Authority,

442 F.2d 646 (2d Cir.), cert. denied, 404 U.S. 863

SRNR oi ek i bie Whcnu na 0s wee kaa ees eked 15

Laird v. Tatum, 408 U.S. 1 (1972) ............ 7, 14, 17, 19

Lane v. Wilson, 307 U.S. 268 (1939) ................ 12

Linda R.S. v. Richard D., 410 U.S. 614 (1973)........ 19

Louisiana v. United States, 380 U.S. 145 (1965).... 18, 19

Louisville & Nashville R.R. Co. v. Mottley, 211 U. S. 149

ee ee 14

Loving v. Virginia, 388 U.S. 1 (1967) ................ 12

Marales v. Haines, 486 F.2d 880 (7th Cir. 1973) ...... 15

NAACP v. Button, 371 U.S. 415 (1968) ..:.......... 4

O’Shea v. Littleton, 414 U.S. 488 (1974) ............ 19

Park View Heights Corp. v. City of Black Jack, 467 —

Te Se GE GR Do oo oe oes vv ae vas 13, 15

Public Affairs Associates v. Rickover, 369 U.S. 111

CRM i oo eek ea Sb k ko 0x15 Peas kaeees e

Ranjel v. City of Lansing, 417 F.2d 321 (6th Cir. 1969),

_ cert, denied, 397 U.S. 980 at ee dkewakhe baa cad

Index Continued ili

Page

Roe v. Wade, 410 U.S. 118 (1973) ..........cceeees 13, 14

SASSO v. City of Union City, 424 F.2d 291 (9th Cir.

a) ee eee ry Seer rer ere: free ere Tr

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............- 4,18

Schlesinger v. Reservists Committee to Stop the War,

OE BOK, BORG (MOTE) ins vivvcs cagpaesceccmevteses 19, 20

Sierra Club v. Morton, 405 U.S. 727 (1972) ....4, 10, 19, 20

Sisters of Providence v. City of Evanston, 335 F.Supp.

$e eRe se Seer eee eee

Spomer v. Littleton, 414 U.S. 415 (1974).......5..... 10

Swann v. Charlotte-Mecklenburg Board of Education,

EL, E MAREE) GK read seeeckae wanes SA NabOAp aes 18

Trafficante v. Metropolitan Life Insurance Co., 409

on ME BS cc) en ee er ee eee eT ree ees Te 9,10

United Farmworkers v. City of Delray Beach, 493 F.2d

yy Bh Re ct) er etre eee ere 15

United States v. Richardson, 94 S.Ct. 2940 (1974) 17, 19, 20

United States v. SCRAP, 412 U.S. 669 CIS souks "4, 1.8.

9 10, 11

Warth v. Seldin, 495 F.2d 1187 (1974) ....... 1, 5, 6, 7, 21,

12, 13, 17

Willingham v. Morgan, 395 U.S. 402 (1969) ......... 10

CoNSTITUTION AND STATUTES:

United States Constitution, Fourteenth Amendment.. 7

Federal Fair Housing Act [42 U.S.C. 3601-3619]..... 10

Federal Rules of Civil Procedure

NE UE a ears oh wate kA Katee useccenas 7

ONE apie cares ya a oe ae eee ea 10

United States Code

es ote | re ee ee 10

ist edie) re ee ee reer oes 7,10

Oe ee AE ek as Rien ccd ds ons owen ens 7, 10

EE a ch ec aei nwa kee ae Sale 7, 10, 20

Be I ain ins Cv ese s soda acces aes eKeuns 10

MISCELLANY :

Moskowitz, Standing of Future Residents m Ex-

clusionary Zoning Cases, 6 Akron L. Rev. 189

| Ae a eee, tere per. reer ee 17

United States Bureau of the Census, Census of Pop-

RE BE ino ha Ae hs. ede eke thee censors’

IN THE

Supreme Court of the United States

OctoBer TERM, 1974

No. 73-2024

Rosert WakTH, ET AL., Petitioners,

v.

Ira SELDIN, ET AL.

On Writ of Certiorari to the United States Court of Appeals

; for the Second Circuit

BRIEF AMICUS CURIAE

=

INTEREST OF THE AMICUS CURIAE

With the consent of the parties, the National Committee

Against Discrimination in Housing, Inc. (NCDH) submits

this brief amicus curiae in support of the petitioners, urg-

ing reversal of the judgment of the Court of Appeals for

the Second Circuit. That decision, rendered on April 18,

1974, is reported at 495 F.2d 1187. It affirmed an order of

the district court dismissing the complaint on the pleadings

without a full evidentiary hearing.

NCDH was founded in 1950 with the objectives of estab-

lishing and implementing programs to eliminate racial

Pe ee SEER ES IE

SF FER PT EEE REM GIS LUV TO eT

2

segregation and discrimination in housing and to broaden

housing opportunities for minority group members, es-

pecially those of lower income. Since its inception, NCDH

has carried out affirmative programs of research and edu-

cation in the area of equal housing opportunity.

NCDH has complemented its research and education ef-

forts with a vigorous legal program aimed at securing equal

housing opportunity guaranteed under state and federal

law. It has initiated litigation and participated as amicus

curiae in numerous cases involving challenges to discrim-

inatory housing practices and exclusionary land use con-

trols. Among the important recent cases initiated by

NCDH are Dailey v. City of Lawton, 425 F.2d 1037 (10th

Cir. 1970), and SASSO v. City of Union City, 424 F.2d

291 (9th Cir. 1970). Among the important recent cases in

which NCDH has participated as amicus curiae are Reit-

man v. Mulkey, 387 U.S. 369, (1967), Jones v. Mayer, 392

U.S. 409 (1968), Curtis v. Hoether, 415 U.S. 189 (1974),

and Kennedy Park Homes Ass’n v. City of Lackawanna,

436 F.2d 108 (2d Cir. 1970), cert. denied, 401 U.S. 1010

(1971). ot

In the course of its work, NCDH has analyzed the im-

pact of suburban zoning and other land use policies and

practices on housing, job, and educational opportunities

for lower income minorities in the nation’s metropolitan

areas. We have found that, in many instances, suburban

municipalities have exercised their zoning and other land

use powers in a manner to isolate themselves from the

problems of the metropolitan areas of which they are a part

and to exclude lower income minorities.

Consequently, the question whether lower income mi-

norities have standing to challenge such discriminatory

land use practices is of the highest importance. The res-

olution of this issue by the Court will bear significantly

on the efforts of NCDH to assist lower income minorities

\

in securing their legally protected right to equal housing

opportunity, and to reverse the accelerating racial and

economic polarization in metropolitan areas.’

QUESTION PRESENTED

Whether lower income minority persons who seek to re-

side in a community have standing to challenge racially

discriminatory land use practices by that municipality which

block the construction of housing in which they can live.

ARGUMENT

Lower Income Minority Persons Have Standing To Challenge

Racially Discrimmatory Land Use Practices by a Munici-

pality Which Prevent Them from Residing in that Com-

munity.

Introduction

The court of appeals affirmed the dismissal of the com-

plaint solely on the ground that the plaintiffs lacked stand-

ing to maintain the action. In reciting the familiar two-

pronged test of standing announced in Association of Data

Processing Service Organizations, Inc. v. Camp, 397 U.S.

150, 152-53 (1970), it held that the complaint in this case

did not sufficiently allege ‘‘injury in fact.’? The court of

appeals believed that the plaintiffs did not allege a ‘‘per-

sonal stake’’ in the outcome of the litigation to satisfy the

standing requirement.

NCDH contends that the court of appeals, in denying

these plaintiffs standing, misapplied some and ignored

other decisions of this Court. We argue that when the al-

legations of the complaint are placed against a proper

reading of the applicable precedents, plaintiffs’ harm will

be shown sufficiently for standing purposes. In light of

'In Monroe County, New York, of which the defendant Town

of Penfield is a part, more than 95 percent of the black population

resides in the central city of Rochester, and barely .01 percent

lives in Penfield. United States Bureau of the Census, Census of

Population: 1970.

4

the concerns of NCDH set forth above, we focus our a‘-

tention on the alleged injury to the lower income, minority

plaintiffs.”

Since the lower courts dismissed the complaint at the

pleading stage, before an evidentiary hearing was held,

this Court is obliged to undertake the same limited inquiry.

Consequently, the settled rules for construing complaints

at this early stage of the proceeding are fully applicable.

For the purposes of a motion to dismiss, the material

allegations of the complaint are taken as admitted ....

And, the complaint is to be liberally construed in favor

of plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421

(1969).

Accord, Scheuer v. Rhodes, 416 U.S. 232 (1974); United

States v. SCRAP, 412 U.S. 669 (1973).

This Court has, at least since the inception of the Fed-

eral Rules of Civil Procedure, admonished strongly against

dismissing complaints ‘‘unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.’’ Conley v.

Gibson, 355 U.S. 41, 45-46 (1957).

1. The Plaintiffs Are Injured in Fact

Petitioners Broadnax, Reyes, and Sinkler are lower in-

come minority residents of Rochester. These plaintiffs

have been unable, because of their race and economic status,

to locate housing in Penfield, a suburb of Rochester. They

allege that the absence of dwellings they can afford is a

? While we argue primarily for the standing of the lower income

minority plaintiffs, we maintain that the court of appeals errone-

ously applied this Court’s decisions in denying standing to the

organizational plaintiffs. ‘‘It is clear that an organization whose

members are injured may represent those members in a proceeding

for judicial review.’’ Sierra Club v. Morton, 405 U.S. 727, 739

(1972) ; accord, NAACP v. Button, 371 U.S. 415 (1963); United

States v. SCRAP, 412 U.S. 669 (1973).

Le te ee ms

5

result of the defendants’ unlawful conduct. The petitioners

claim that the defendants, officials of Penfield, discriminate

against them through maintenance and administration of

their zoning and other land use policies and practices.

Notwithstanding the plaintiffs’ allegations that the de-

fendants’ practices are unlawful both on their face and

as applied, the court of appeals focused almost exclusively

on the facial content of the zoning ordinance.* It largely

ignored the plaintiffs’ explicit allegations that the zoning

law has been improperly administered. The lower court

opinion initially noted, then ignored, the allegation of un-

lawful applicationmef the ordinance. The plaintiffs claim

that the defendants, on several occasions, refused to ap-

prove plans for the construction of low and moderate in-

come housing these minority petitioners can afford.

The complaint alleged that the defendants have ‘‘admin-

istered the provisions of the said zoning ordinance by re-

fusing to grant variances, building permits, and by use of

special permit procedures and other devices so as to effect

and propagate the exclusionary and discriminatory pol-

icy, plan and/or scheme.’’ Complaint paragraph Six-

teenth; see also paragraph Eighteenth. As the court

of appeals expressly noted: ‘‘Appellants’ complaint goes

beyond the fact of the town’s zoning laws and further

alleges certain affirmative acts....’’ 495 F.2d at 1189. As

thé court also noted, these affirmative acts involved block-

ing the construction of a number of proposals for multi-

family housing in Penfield. These included at least one

proposed project for what the court characterized as ‘‘ ‘low

moderate income housing’ ’’ ibid, precisely the kind of

3 The irony of the defendants’ contention that these non-resident

plaintiffs have no interest in Penfield’s land use practices is that

the zoning ordinance itself recognizes that concern. In the pro-

visions for ‘‘planned unit development,’’ the ordinance requires

the builder to consider the needs of ‘‘existing and potential town

residents at all economic levels.’’ Penfield Zoning Ordinance,

$29-1120.B.(1) (emphasis added).

Sa a i ISS

ES OEE Re, MEN LS See VT

6

honsing for which plaintiffs were potential residents. See

Complaint paragraph Fifth; Complaint 1 paragraph Sev-

enth. But in its discussion of the standing of the indi-

vidual plaintiffs, the court ignored these ‘‘affirmative acts”’

and focused on the zoning law alone. 495 F.2d at 1191-93.

We contend that even under an analysis limited to the

facial content of the ordinance, the plaintiffs allege injury

in at least two respects. First, the ordinance severely

restricts certain types of housing which would be in the

price range these lower income minority persons can af-

ford. For example, while the ordinance allows mobile home

parks (but not mobile homes on individual lots) and multi-

family dwelling units, it limits such housing to a fraction

of the land available for residential construction. Less

than one percent of all vacant land in Penfield, the plain-

tiffs allege, is zoned for this type of housing. Because of

the absence of land apartments and mobile homes,

builders are unable to construct housing these plaintiffs

can afford.

A second source of injury to these lower income minority

plaintiffs, from the face of the ordinance, arises out of the

provisions governing the construction of single-family de-

tached housing. The plaintiffs allege that 98 percent of

all the vacant land in Penfield is zoned in this manner.

Contractors cannot build housing for these plaintiffs on

that land, however, because the requirements imposed by

the ordinance raise the cost beyond that which these plain-

tiffs can afford. By imposing requirements relating to

such factors as large lot sizes, minimum floor space, and

density, the ordinance precludes the construction of hous-

ing which these plaintiffs can purchase.

Moreover, the plaintiffs’ claim is based not only on the

maintenance of Penfield’s zoning law, but, as the lower

court noted, on its application to block specific proposals

Oe et REOEE eS ~ TES PRE LOS Sa Pe

7

for housing in which they could live. 495 F.2d at 1189.

Once the nature of the defendants’ conduct is fully dis-

closed by an examination of the complaint, and accompany-

ing affidavits,‘ the direct injury to the plaintiffs becomes

clear. Their standing to challenge these unlawful actions

follows, if the decisions of this Court are accorded their

proper significance.

The two-pronged test of standing set forth in the Camp

and SCRAP cases, supra, is surely met here. The interest

plaintiffs seek to protect—the right to equal housing op-

portunity without discrimination—is clearly within the

‘gone of interests protected by 42 U.S.C. 1981, 1982, and

1983, as well as the Fourteenth Amendment to the United

States Constitution. The court of appeals apparently be-

lieved that the plaintiffs satisfied that requirement as it

did not discuss the point.

The second part of the test—whether injury in fact is

alleged—is also satisfied by the allegations in the complaint

and the facts in the affidavits. The plaintiffs contend they

have been harmed because the defendants’ conduct has

prevented the construction of housing they can afford. The

injurious result has adversely affected the minority plain-

tiffs in several ways: denial of decent, safe, and sanitary

4It is not clear whether the presence of plaintiffs’ affidavits con-

verts defendants’ motion to dismiss into, a motion for summary

judgment under Rule 12(b), Fed.R.Civ.P. We believe it does not.

See Laird v. Tatum, 408 U.S. 1, 2-3 (1972). But even if the case

is considerd in the posture of a motion for summary judgment,

the district court is still obligated to treat the well-pleaded alle-

gations as true (in the absence of contradictory affidavits). Cf.

England v. Louisiana State Board of Medical Examiners, 263 F.2d

661, 674 (5th Cir.), cert. denied, 359 U.S. 1010 (1959). Of course,

plaintiffs’ complaint should be evaluated factually as supplemented,

by their affidavits. Ellis v. Carter, 291 F.2d 270, 275 (9th Cir.

1961). ;

PO PO LIPS GPO CIN EAE ET GOES FIT

8

housing;* denial of employment opportunities ; denial of

quality education for their children; and denial of the right

to choose where to live. Each of these deleterious effects,

standing alone, would suffice to meet the ‘‘injury in fact’’

test of standing. In United States v. SCRAP, supra at

688, where the Supreme Court sustained plaintiffs’ stand-

ing, the injury was ‘‘far less direct and perceptible.”’

In United States v. SCRAP, supra, an organization com-

posed of law student-environmentalists sued to restrain

the Interstate Commerce Commission from raising rail-

road freight rates. They alleged that the increase in

charges would decrease the use of the railroads for ship-

ping discarded materials for recycling. This, in turn,

would cause manufacturers to produce more non-recyclable

commodities. The result would have an adverse impact

on the environment, the plaintiffs contended, because more

natural resources would be used and more litter would

be strewn in ‘public places.

This Court held that, so long as the plaintiffs had alleged

a ‘‘specifie and perceptible harm,’’ they had standing to .

challenge the rate increase. It made no difference that ;

the harm generated by the rate hike traveled an ‘‘atten-

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5 Plaintiff Broadnax, for example, described the conditions un- ;

‘der which she and her family are forced to live in the inner city a

of Rochester: “‘The wiring in the house is so old and defective

that there is some electrical short in the apartment at least every

two weeks which ris our resetting fuses. The house founda-

tion is now crumbling very badly. Since the foundation has started

crumbling, there have been mice and rats coming into the house. 3

The mice and rat infestation is now so bad that they come through i

the heating vents into the rooms of the apartment itself. I have 3

already caught two mice in the children’s bed. To have rats and

mice infesting the house causes great anxiety among the children.

One way that I try to reduce the danger of my children’ getting j

bitten is to leave the light on in the bedroom all night. The 4

children are now afraid to go to sleep unless there is a light on

in the room.’’ Broadnax Affidavit, paragraph 9.

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9

uated line of causation to the eventual injury.’’ Jd. at 688.

The important point was that the plaintiffs had alleged

‘injury in fact,’’ and were prepared to prove it, In the

opinion below, the court of appeals never referred to the

SCRAP case, an omission which underscores its erroneous

conclusion.

In Barlow v. Collins, 397 U.S. 159 (1970), tenant farmers

sued to enjoin a Department of Agriculture regulation

which allowed federal crop assistance subsidies to be as-

signed (prior to payment to the tenant farmer) to a land-

lord for rent. The tenant farmers argued that the regula-

tion would cause them injury in fact in the following way:

If future federal payments could be assigned for rent,

landlords would require that it be done as a condition to

tilling their soil.

Thus, the tenant farmers, in the pre-harvest period, would

be without any cash to purchase necessities, such as food

and clothing. They would then have to go to the landlord

for these itéms, or for credit to buy such goods. This

process would make the tenant farmers totally dependent

on the lahdlord, and thus, they would lose whatever eco-

nomic independence they had before the promulgation of

the regulation.

The line of reasoning from the alleged illegal action to

the ultimate injury to the plaintiffs in Barlow follows the

same sinuous yet deliberate course as in SCRAP. In each

of these cases, the harm was perceptible but not direct,

cognizable but not obvious. But neither directness nor

magnitude has been required under the decisions of this

Court.

In Trafficante v. Metropolitan Life Insurance Co., 409

U.S. 205 (1972), white and black residents of a segregated

apartment building sued to enjoin racial discrimination

practiced by the owner. They alleged that the manage-

ment’s policy of excluding minorities adversely affeeted

Pir erence ox: oad 0 PIRI OLE EERE SAEED PLES, OME UCN GE TRS ME NII eR MRR Cats

10

their opportunities to meet and associate with members

of minority groups. This injury, they asserted, was suf-

ficient to confer standing on them to attack the defendants’

racially exclusionary conduct. Again the injury to the

plaintiffs was several steps removed from the allegedly

illegal practices. Nonetheless, this Court sustained the

standing of the residents to maintain the action.

Although the challenge in the instant case is not to pri-

vate discrimination under 42 U.S.C. 3610, as in Trafficante,

but rather to governmental discrimination under 42 U.S.C.

1981, 1982, and 1983, the applicable criteria for@etermining

standing are the same. See United States v. SCRAP, su-

pra at 689 n.14. Where 42 U.S.C. 3610(a) uses the phrase

‘*any person who claims to have been injured,’’ 42 U.S.C.

1983, for example, uses the words ‘‘the party injured.”’

This phrase in Section 1983 should, for standing purposes,

be construed as broadly as the nearly identical language

in Section 3610 was construed in Trafficante. Both statutes

are employed by injured plaintiffs in their roles as ‘‘private

attorneys general.’’ Trafficante, supra at 211. Thus,

here, as in Trafficante, Barlow, and SCRAP, the issue ‘s

one of statutory, not constitutional standing.*

In the present appeal, the alleged injury to the plain-

tiffs caused by defendants’ maintenance of their zoning

scheme is more substantial and far more direct than that

found suffigient in SCRAP, Barlow, and Trafficante. Pe-

* It is noted that, while no claim is made here under the Federal

Fair Housing Act, as in Trafficante, this Court is authorized to

eure ‘‘[d]efective allegations of jurisdiction,’’ 28 U.S.C. 1653; ef.

Willingham Vv. Morgan, 395 U.S. 402, 407 n.3 (1969), if the Court

believes the plaintiffs do not have standing under 42 U.S.C. 1981,

1982, and 1983. Since standing is jurisdictional, this Court may

correct the inadvertently omitted reference to 42 U.S.C. 3601 et

seq., or it may vacate the judgment and remand the case so that

the plaintiffs may seek leave to amend the complaint. Rule 15,

Fed.R.Civ.P. ; Sierra Club v. Morton, 405 U.S. 727, 735 n.8 (1972) ;

see Spomér v. Littleton, 414 U.S. 415 (1974).

Sah tE bbl

1 thoes Ca nits so leks Ph Rekha Dis.

A NEGO VOU Sic Died ad's Msp ae

4

3

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11

titioners Broadnax, Sinkler, and Reyes are lower income

minority persons who seek decent housing and the decent

living environment that Penfield affords. As the court of

appeals correctly pointed out, they have no interest in land

within Penfield.- 495 F.2d at 1191. But that is the essence

of their complaint—that the defendants’ zoning scheme

prevents them from acquiring an interest in land, either

by purehase or lease, by excluding housing in which they

can live. Thus even under an analysis limited to the im-

pact of the zoning law alone, the line of causation between

the defendants’ conduct and the injury to the plaintiffs is

clear and direct, not»‘‘attenuated’’ as it was in SCRAP *

(where this Court nonetheless upheld plaintiffs’ standing).

Further, in the instant case, the injury to plaintiffs is

caused not merely by the maintenance of zoning laws, but,

as the lower court expressly recognized in its statement

of the facts, by ‘‘affirmative acts’’ blocking proposals for

the construction of multifamily housing in which they were

potential residents. 495 i*.2d at 1189. The court contended,

however: ‘‘In no case do appellants allege any involve-

ment in these proposals.’’ Ibid.” It is difficult to conceive

how these plaintiffs—lower income minority persons—

could have alleged any closer involvement than they al-

ready have. Their involvement, according to the complaint,

lies in the fact that they are potential residents of low and

moderate income housing, and the injury defendants cause

them lies in the exclusion of such housing from Penfield

by means, not only of their maintenance of zoning laws,

but also by ‘‘affirmative acts’’ blocking specific projects.

_As a direct result of defendants’ conduct, these plain-

tiffs are unable to acquire land, to lease an apartment, or

to purchase a home within the municipal borders, condi-

tions which the court of appeals suggested were essential

elements for standing. 495 F.2d at 1191. If the defendants

explicitly prohibited minorities from living in their town,

non-resident blacks or hispanics would surely have stand-

12

ing to challenge that ordinance. See Loving v. Virginia,

388 U.S. 1 (1967); cf. Buchanan v. Warley, 245 U.S. 60

(1917). Here, the defendants accomplish the same result

somewhat more subtly than by use of express language

imposing racial and ethnic disabilities. Federal proscrip-

tions against exclusionary devices nullify ‘‘sophisticated

as well as simple-minded modes of discrimination.’’ Lane

v. Wilson, 307 U.S. 268, 275 (1939).

It would be a harsh rule of standing which required, as

the court of appeals suggests, that these plaintiffs must

first live in Penfield before they can challenge land use

practices which exclude them. 495 F.2d at 1191. It is de-

fendants’ alleged discriminatory conduct, not the plain-

tiffs’ choice, which prevents them from residing in the com-

munity. If physical presence in a municipality were an

essential element of standing, then the ability of injured

non-residents to challenge unlawful land use practices

would betcommitted to the sole discretion of the offending

party. A community which successfully excludes all lower

income minorities from its borders could effectively insu-

late itself from legal attack. In short, the most egregious

violations would be the least likely to be remedied.

Just last May, this Court confronted a similar contention

and rejected it. In Allee v. Medrano, 94 S. Ct. 2191 (1974),

union organizers brought suit to enjoin the alleged harass-

ment of their activities by public officials. The defendants

argued that the case was not justiciable (moot) because the

plaintiffs had ceased their organizational efforts. This

Court rejected that argument because the plaintiffs ‘‘aban-

doned their efforts as a result of the very harassment they

sought to restrain by this suit.’? Jd. at 2197. That is pre-

cisely the point here. Plaintiffs in the instant case are

unable to live in Penfield because of defendants’ discrimi-

natory conduct which plaintiffs seek to restrain by this suit.

NAIR BAERS ah

13

2. Plaintiffs Have Standing Independent of

Developers and Landowners.

The court of appeals also indicated that the plaintiffs

might have standing if they joined with landowners or con-

tractors in challenging defendants’ practices. 495 F.2d

1191-92.7 In other words, according to the lower court,

even. if the defendants’ alleged discriminatory conduct has

‘directly prevented the construction of housing, these low

and moderate income minority plaintiffs cannot challenge

municipal action which effectively excludes them unless the

developer or the property owner is also a plaintiff. This

‘“piggy-back’’ theory has no basis in precedent or reason.

In Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton,

410 U.S. 179 (1973), this Court held that women, who had

once been pregnant, could challenge abortion statutes which

prevented them at the time from terminating their preg-

nancies. The anti-abortion laws in issue did not impose

any penalty upon a woman who underwent an abortion.

And clearly a woman needs the aid of others (physicians,

nurses, ete.) to terminate a pregnancy.

Nonetheless, this Court held that such women have stand-

ing, and did not require attending physicians or nurses

to join with them in challenging a statute which criminal-

ized only the conduct of the attendants. Their position

with respect to the abortion statute is precisely the same

as the minority plaintiffs here who seek housing in Pen-

field. In both cases, the plaintiffs need the assistance of

others in order to secure their rights. Just as the women

in Wade and Bolton needed the assistance of members of

the medical profession, so the plaintiffs here SME § as-

7 Citing Park View Heights Corp. v. City of Black Jack, 467

F.2d 1208 (8th Cir. 1972), and Dailey v. City of Lawton, 425 F.2d

1037 (10th Cir. 1970), the court said: ‘‘In both cases, the court per-

mitted potential residents of the proposed projects to join [with

the developers] as plaintiffs.’’ 495 F.2d at 1192.

ble

14

sistance of builders or landowners to secure decent housing

in Penfield. The women in Wade and Bolton were accorded

standing; so should these plaintiffs here.

Similarly, in James v. Valtierra, 402 U.S. 137 (1971),

low income persons challenged, on its face, a California

referendum provision which they claimed prevented the

construction of housing they could afford. At the time

suit was instituted, no project was under consideration nor

were any landowners plaintiffs in the litigation.’ In enter-

taining the suit, this Court was not disturbed because a

builder did not join with the low income plaintiffs in chal-

lenging the referendum procedure which purportedly ex-

cluded them.’ Nor did the Court reject the suit because

of the absence of a viable project whose construction was

adversely affected.”

Granting such independent standing to lower income

minorities also has sound legal support in niffiterous

decisions by lower federal courts. They have consistently

® Although a potential housing facilitator, the public housing

authority, was a nominal defendant in Valtierra, this Court should

not decide the question of standing ‘‘on the basis of the identity

of the parties named as defendants in the complaint.’’ Laird v.

Tatum, 408 U.S. 1, 10 n.6 (1972).

® Although the standing of the plaintiffs was not directly at issue

in Valtierra, the decision has precedential value. Standing is a

jurisdictional concept, and federal courts have an affirmative ob-

ligation in each case to insure that their jurisdiction is

properly invoked. ‘‘[I]t is the duty of this court to see to

it that the jurisdiction [of lower federal courts], which is

defined and limited by statute, is not exceeded.’”’ Louts-

ville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908) ; accord,

City of Kenosha v. Bruno, 412 U.S. 507 (1973). Thus a precedent

used for jurisdictional purposes has greater weight than if it were

employed for other reasons, even though the precise jurisdictional

issue was not expressly discussed by the Court.

7°Tt is true that, in Valtierra, the referendum mechanism had

been used earlier to block low income housing projects. But that

fact is present here also as these plaintiffs allege that Penfield

has turned down several such projects in the past.

Dae ie ona ae

15

entertained suits in which lower income minorities who are

potential residents of a community or a proposed project

have challenged municipal land use practices which pre-

vent, impede, or interfere with the construction of housing

they can afford. In Park View Heights Corp. v. City of

Black Jack, 467 F.2d 1208 (Sth Cir. 1972) and Sisters of

Providence v. City of Evanston, 335 F.Supp. 396 (N.D. II.

1971), several sets of plaintiffs, including lower income

minority potential residents of subsidized housing, chal-

lenged allegedly discriminatory land use practices. The

courts, after examining each class of plaintiffs, held that

the case was justiciable as to each, emphasizing the injury

to the lower income minorities. ™

In Banks v. -Perk, 341 F.Supp. 1175 (N.D. Ohio 1972)

aff’d in relevant part, 473 F.2d 910 (6th Cir. 1973), lower

income minority prospective residents were the only plain-

tiffs in the case. The builder whose project was blocked

by municipal conduct was conspicuous by his absence.

Nonetheless, the individual minority plaintiffs had standing

to challenge the discriminatory conduct.

And in the recent case of Cornelius v. City of Parma,

374 F. Supp. 730 (N.D. Ohio 1974), vacated and remanded,

— F.2d — No. 741401 (6th Cir. Oct. 22, 1974), where,

again, the builder was not a plaintiff, lower income

See also United Farmworkers v. City of Delray Beach, 493

F.2d 779 (5th Cir. 1974); Morales v. Haines, 486 F.2d 880 (7th

Cir. 1973); King v. New Rochelle Municipal Housing Authority,

442 F.2d 646 (2d Cir. 1971), cert. denied, 404 U.S. 863 (1971);

Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir. 1970); Ken-

nedy Park Homes Ass’n v. City of Lackawanna, 436 F.2d 108 (2d

Cir. 1970), cert. denied, 401 U.S. 1010 (1971); Cole v. Housing

Authority, 435 F.2d 807 (1st Cir. 1970) ; Ranjel v. City of Lansing,

417 F.2d 321 (6th Cir. 1969), cert. denied, 397 U.S. 980 (1970) ;

Crow v. Brown, 332 F. Supp. 382 (N.D. Ga. 1971), aff’d 457 F.2d

788 (5th Cir. 1972) ; Gautreaux v. Chicago Housing Authority, 265

F. Supp. 582 (N.D. Ill. 1967).

16

minority non-residents sued to enjoin allegedly discrimi-

natory land use practices, both on their face and as

applied, of a Cleveland, Ohio suburban community. The

district court dismissed the complaint on grounds, inter

alia, that the builder was not itself contesting Parma’s

conduct. 374 F. Supp. at 736. The court of appeals

vacated the judgment because ‘‘the complaint appears to -

state a causé of action alleging racial discrimination . . .’’

and remanded the case for trial.’* This, we contend, is

what the court of appeals in the instant case should have

done and what this Court should do to correct the lower

court’s basic error.

Granting independent standing to lower income

minorities to attack municipal land use practices which

exclude them also makes eminently good practical sense.

After all, they are ‘‘the real losers’’ and ‘‘the true parties

in interest’? when governmental action, as in this case,

prevents their obtaining better housing. CMHA v. City

of Cleveland, 342 F. Supp. 250, 256 (N.D. Ohio 1972), aff’d

sub nom. CMHA v. Harmody, 474 F.2d 1102 (6th Cir. 1973).

If future tenants or residents could only establish the

justiciability of their claim derivately through housing

sponsors or landowners, a great deal of discriminatory

behavior by government would forever go unchallenged.

Contractors, for example, are. reluctant to bear the

financial burdens and incur local wrath by challenging dis-

- &

12 The full text of the court of appeals opinion is as follows:

‘On consideration of the briefs and records and oral argu-

_ Ments in the above-styled appeal; and

Noting that the complaint appears to state a cause of action

alleging racial discrimination in the exclusion of black citizens

from equal access to housing, jobs and educational opportuni-

ties in the City of Parma, Ohio, which requires a factual

hearing,

The judgment of the District Court is vacated and the case

is remanded for trial.’’

Wirer erence ee catia a ao SS iMeM EY

baal So a as “4 Se Oe es LENO bas sh i toda Rs ae haa

17

criminatory municipal action.'* And local property

owners may well, after a controversy has erupted over

the construction of lower income minority housing on their

land, be relieved to see the project stymied by municipal

action.

3. An Effective Remedy Is Available.

The court of appeals also denied standing because, in

its view, effective relief could not be provided even if the

plaintiffs prevailed.’ ‘‘Indeed, appellants’ prayer for

relief demonstrates their lack of personal stake in the out-

come and their lack of standing.’’ 495 F.2d at 1192. The

lower court apparently believed that ordering the relief

requested would not produce the housing needed by the

plaintiffs.

Granting this relief would not clear roadblocks to

currently planned housing which appellants hope to

occupy. It would not benefit appellants in any way

in the foreseeable future. Jd. at 1192-93.

13 As one commentator pointed out regarding the reluctance of

builders to institute litigation challenging such misconduct: *‘[T]s

there any reason to suspect that builders familiar with the experi-

ence of Joseph Girsh will imitate his example of eight years of liti-

gation, three trips to the Supreme Court of Pennsylvania, three

cases pending, all as a means of constructing apartment houses?’’

Moskowitz, Standing of Future Residents in Exclusionary Zoning

Cases, 6 Akron L. Rev. 189, 213 (1973). For case decision, see In

re Girsh, 487 Pa. 237, 263 A.2d 395 (1970).

4 There is serious doubt whether the question of relief is prop-

erly to be considered in evaluating a plaintiff’s standing. ‘‘ [T]he

concept of standing focuses on the party seeking relief, rather than

on the precise nature of the relief sought.’’ Jenkins vy. McKeithen,

supra at 423 (1969) (emphasis added). In examining the nature

of the relief sought, the court of appeals might have confused

the standing issue with other aspects of justiciability, such as

‘‘ripeness’’ or ‘‘political question,’’ where the relief is properly

a part of the inquiry. See Laird v. Tatum, 408 U.S. 1 (1972);

United States v. Richardson, 94 S. Ct. 2940 (1974).

- 18

First, it should go without saying that the scope of

relief is properly a matter left to the trial judge after a

full evidentiary hearing on the merits of the plaintiffs’

claim. After such a trial, a judge might well deny all

relief, grant only part of the plaintiffs’ request, or enter

an order different from any judgment proposed by the

parties. This is particularly true with respect to equitable

relief, where the trial court must fashion his order in

light of a complete factual record. Granting relief, like

dismissing a complaint, should only be undertaken after a

full and fair evidentiary hearing has been conducted.

Jenkins v. McKeithen, supra; see Public Affairs Associates

v. Rickover, 369 U.S. 111 (1962); Scheuer v. Rhodes,

supra.

Second, it is important to stress that plaintiffs in this

ease seek not only declaratory, but also injunctive relief.

We contend that both forms of remedy would remove

‘*roadblocks’’ that prevent the construction of dwellings

the plaintiffs could afford. A declaratory judgment alone

would eliminate’ obstacles which, according to plaintiffs’

factual allegations, are major barriers to building sub-

sidized housing for lower income minorities. Moreover,

the record shows that builders have sought in the past,

and indeed currently seek, to construct housi lower

income minorities, only to be stifled by the dants’

actions. Properly tailored declaratory relief might well

result in this housing getting built.

Third, and most important, injunctive relief could

directly produce the needed housing. If the plaintiff-

petitioners establish through an evidentiary hearing that

the defendants have engaged in racial discrimination, they

will be entitled to a decree which requires the defendants

to take affirmative action to correct the effects of their

past discrimination. F.g., Swann v. Charlotte-Mecklen-

burg Board of Education, 402 U.S. 1 (1971); Green v.

County School Board, 391 U.S. 430 (1968); Louisiana v.

Imig

19

United States, 380 U.S. 145 (1965). Such a decree might

well require the defendants to develop and implement an

affirmative program which would actively encourage

builders and sponsors of subsidized housing to construct

dwellings in Penfield and to take other steps to assure that

housing is provided for the plaintiffs and the class they

represent. See Garrett v. City of Hamtramck, 335 F. Supp.

16 (E.D. Mich. 1971), supplemental order, 357 F. Supp.

925 (1973).

4. This Court's Recent Decisions Denying

Standing Are Inapplicable.

This Court’s recent decisions denying standing do not

lead to a different conclusion. See Schlesinger v. Reserv-

ists Committee to Stop the War, 94 S. Ct. 2925 (1974);

United States v. Richardson, 94 S. Ct. 2940 (1974) ; O’Shea

v. Littleton, 414 U.S. 488 (1974) ; Linda R. 8. v. Richard )).,

410 U.S. 614 (1973); Laird v. Tatum, 408 U.S. 1 (1972);

Sierra Club v. Morton, 405 U.S. 727 (1972).% In cach of

these cases, the plaintiffs failed to allege that they were

‘injured in fact’’ by the defendants’ purportedly unlaw-

te conduct. The substantial harm inflicted upon these

plaintiffs by the defendants’ actions is a far ery, for

example, from the minimal, subjective, and speculative

. injury alleged in Laird v. Tatum, supra.

Nor are we here concerned with vague and non-particu-

larized challenges to local systems of criminal justice

which would result in ‘‘an ongoing federal audit of state

criminal proceedings.’’ O’Shea v. Littleton, supra at 500.

** Some of these cases, to be sure, may more properly be classi-

fied as dealing with aspects of justiciability- other than standing.

The plaintiffs in United States v. Richardson, supra, appeared to

be seeking to undertake responsibilities which the Constitution

commits solely to Congress. And in Linda R.S. v. Richard D.

supra, the plaintiff sought an order directing prosecutorial au-

thorities to exercise their power in a specified way, a matter his-

torically committed to their sole discretion.

20

These“‘‘ generalized grievances about the conduct of gov- »

ernment,’’ Flast v. Cohen, 392 U.S. 83, 106 (1968), are

clearly inadequate bases upon which standing may be pre-

dicated. See also Sierra Club v. Morton, supra. Such

judicial incursions would raise serious questions under

the separation of powers doctrine and might well ‘‘create

a remarkably illogical system of judicial supervision of the

coordinate branches of the Federal Government.’’ United

States v. Richardson, supra at 2952 (concurring opinion

of Powell, J.). ‘‘{I]njury in fact’’ is what is needed,

Data Processing v. Camp, supra at 152, not ‘‘injury in

the abstract.’’ Schlesinger v. Reservists Committee,

supra at 2930.

In sharp contrast, the present plaintiffs allege specific

injury ‘‘in a form traditionally capable of judicial resolu-

tion.’’ Id. at 2932. They claim racial and economic dis-

crimination against municipal defendants under statutes

expressly designed to remedy official misconduct of this

nature. E.g., 42 U.S.C. 1983; Brown v. Board of Edu-

cation, 347 U.S. 483 (1954).

The irreplaceable value of the [judicial] power...

lies in the protection it has afforded the constitional

rights and liberties of individual citizens and minority

groups against oppressive or discriminatory govern-

ment action. United States v. Richardson, supra at

2954.

The case at bar is precisely of that order: a challenge

by representatives of ‘‘minority groups against ... dis-

criminatory government action.’’ These plaintiffs allege

they have been injured in fact by the policies and prac-

tices of the defendants. That allegation of harm to their’

right to equal housing opportunity is sufficient to give

them standing. They should be accorded an evidentiary

hearing so that the full scope and serious nature of their

claims can be presented.

\-

21

- CONCLUSION

For the reasons explicated in the foregoing submission,

'NCDH respectfully urges this Court to reverse the judg-

ment below, and remand the case for a‘trial on the merits.

Respectfully submitted,

Martin E. SLOANE

Artuur D. Wo.LF

National Committee Against

Discrimination in Housing, Inc.

1425 H Street, N.W., Ste. 410

Washington, D.C. 20005

(202) 783-8150

November 29, 1974

j

—

Pia rcrcre SRE IRF EOP OEY REP RYS Ow aN PLEIN PR EY OLE EP EI:

22

/

Certificate of Service

IL Martin E. Sloan, a member of this Court, hereby cer-

tify, pursuant to Rule 33 of this Court, that the foregoing

Brief Amicus Curiae has been served on counsel by placing

copies of it in the United States mail, air mail, postage

prepaid, addressed as follows:

William Ermstrom, Esq.

Harris, Beach & Wilcox

Two State Street ,

Rochester, New York 14614

_ Emmelyn Logan-Baldwin, Esq.

510 Powers Building

Rochester, New York 14614

this 29th any of November, 1974.

| | oe ae

Martin E. Stoane

Artuur D. Wotr i

National Committee Against

Discrimination in Housing, Inc.

1425 H Street, N.W.; Ste. 410

Washington, D.C. 20005

(202) 783-8150